           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            May 28, 2009

                                     No. 08-30884                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



ANTHONY K. LAYSSARD,

                                                   Plaintiff–Appellant,
v.

UNITED STATES OF AMERICA, on behalf of United States Department of
Army,

                                                   Defendant–Appellee.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:06-CV-352


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Anthony Layssard brought suit against the United States under the
Federal Tort Claims Act claiming injuries arising out of a collision with a U.S.
Department of Army (Army) vehicle. He challenges the district court’s judgment
in favor of the United States, which the court rendered after a one-day bench
trial. We affirm the district court’s judgment.



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 08-30884

                                        I
      Layssard’s claim arises out of a minor collision that occurred while he was
riding in a pickup truck driven by his employer, Thurman Perry, Jr. Layssard
and Perry’s vehicle was in the left lane when an Army Humvee attempted to
take a left turn improperly from the right lane. Perry tried to avoid the Humvee,
but it scraped against Perry’s truck while traveling at a low speed.          The
resulting damage was minimal, including light crumpling and scratches over the
front-passenger-side wheel and scratches to the passenger door.
      Layssard brought suit against the United States, claiming that the
accident injured his back and his left knee. The district court held a bench trial
on the merits of the suit and granted judgment in favor of the United States,
finding that Layssard had failed to establish that the accident caused or
aggravated his injuries.
      The district court relied in part on deposition testimony from Perry, which
contradicted Layssard’s testimony regarding the severity of the accident and cast
doubt on Layssard’s credibility. For example, Layssard claimed that the force
of the impact knocked the truck to the side of the road, that the vehicles were
stuck together, and that he needed help opening the passenger door. On the
other hand, Perry testified that Layssard exited the vehicle without assistance
and that the vehicles were not connected after the accident.
      Perry also testified that after the accident, Layssard helped Perry unload
lawn-care equipment from the truck and Layssard continued to work for Perry
for three days without complaints of pain or restrictions on his work. Moreover,
Perry testified that prior to the accident, Layssard had been experiencing leg
and back problems and that on the return drive after the accident, Layssard
indicated that he was going to use the accident to seek payment from the
government for treatment at a hospital for his pre-existing injuries. Perry
further testified that he told Layssard, “Tony, you can do anything you want to

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                                       No. 08-30884

do, but I’m not going to lie for you.” The district court credited Perry’s account
and questioned Layssard’s truthfulness.
      Though Layssard’s treating physician, Dr. Gerald Leglue, testified that he
was willing to link Layssard’s injuries to the accident, the district court found
the testimony unconvincing because it was based on a materially incomplete
subjective history provided by Layssard. Four months prior to the accident,
Layssard had received treatment for pain in his lower back and knee that
involved the same symptoms to the same degree and in the same areas as the
pain he complained of after the accident. Just twelve days prior to the accident,
Layssard again received treatment for a swollen and painful knee. Layssard
withheld this information from Dr. Leglue and instead denied that he had a
history of back pain prior to the accident. The district court also took into
consideration the low speed at which the accident occurred and the minimal
damage that resulted, stating that “[c]ommon sense suggests that injuries, or the
exacerbation of pre-existing injuries, are unlikely to occur in a low speed,
minimal force collision.” Layssard timely appealed the district court’s grant of
judgment in favor of the United States.
                                              II
      Layssard argues that the district court erred by (1) disregarding Dr.
Leglue’s medical expert testimony when the United States failed to call any
experts to contradict his opinion and (2) considering the minimal force involved
in the collision. “When a judgment after a bench trial is on appeal, we review
the findings of fact for clear error and the legal issues de novo.” 1 Reversal for
clear error is warranted only if the court has “a definite and firm conviction that
a mistake has been committed.” 2 When the district court’s “finding is based on


      1
          Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 375 (5th Cir. 2000).
      2
          Id.

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                                        No. 08-30884

its decision to credit the testimony of one witness over that of another, that
finding, if not internally inconsistent, can virtually never be clear error.”3
                                              A
      Layssard argues that the district court was required to accept Dr. Leglue’s
expert opinion given the absence of any evidence contradicting his opinion.
Layssard argues that under Louisiana law, a fact finder must defer to
uncontroverted medical expert testimony. Layssard relies on Durham v. CNA
Insurance Cos., a Louisiana Court of Appeal case in which the court amended a
jury award to increase the amount awarded to the plaintiff because the jury
abused its discretion by ignoring strong “evidence [that] heavily preponderates
in Durham’s favor.”4 There, multiple experts testified on behalf of the plaintiff
and unanimously stated that the accident triggered the plaintiff’s symptoms.5
Moreover, lay testimony unanimously showed that the plaintiff was in good
health prior to the accident and experienced a steady increase in pain and
reduction in activities after the accident.6
      Unlike in Durham, Layssard experienced symptoms prior to the accident
that were identical to those experienced after the accident. Further, only one
expert, Dr. Leglue, testified on Layssard’s behalf, and Dr. Leglue’s medical
opinion was based in large part on information provided by Layssard. Layssard
withheld from Dr. Leglue material information about his past back and knee
problems.      Thus, Durham is inapposite and the district court’s decision to




      3
       Kona Tech. Corp. v. S. Pac. Transp. Co., 225 F.3d 595, 613 (5th Cir. 2000) (quoting
Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985)).
      4
          544 So. 2d 679, 683 (La. App. 3d Cir. 1989).
      5
          Id. at 682-83.
      6
          Id. at 683.

                                               4
                                 No. 08-30884

disregard Dr. Leglue’s opinion because it was based on incomplete information
was not clearly erroneous.
      Layssard argues that Dr. Leglue based his opinion on objective tests as
well as the subjective history Layssard provided and, thus, he would have
reached the same opinion even if Layssard had provided his full history of back
and knee injuries. Layssard points to Dr. Leglue’s testimony that an MRI scan
of Layssard’s knee showed that the knee was swelling six weeks after the
accident and that this injury could not have been the same as the prior injury
four months before the accident because “it’s not going to continue to swell for
six months.” However, Layssard had also experienced a new onset of pain and
swelling in his left knee just twelve days before the accident and Dr. Leglue’s
testimony did not rule out the possibility that the swelling in the MRI was a
remnant of that pre-accident injury.
      With regard to Layssard’s back injury, Dr. Leglue testified that though at
the time he first treated Layssard he did not know about Layssard’s prior back
treatment, he had since reviewed the records from that treatment. Dr. Leglue
relied on a statement in the records from the treating doctor stating that there
were “no neuro deficits.” Dr. Leglue’s examination of Layssard indicated that he
had an abnormality in his achilles reflex, which suggested that after the
accident, there was a neurological defect present. Thus, Dr. Leglue concluded
that the collision must have caused Layssard’s present injury.
      However, Dr. Leglue admitted that he based this conclusion on a number
of assumptions, including an assumption that the doctors who made the “no
neuro deficits” note had tested Layssard’s achilles reflex and that Layssard was
being forthright in saying that his back did not bother him much after the
previous back treatment. Given the questions regarding Layssard’s credibility,
we cannot say that the district court clearly erred in disregarding Dr. Leglue’s
testimony with regard to the causation of Layssard’s knee and back injuries.

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                                             No. 08-30884

                                                  B
      Layssard also takes issue with the district court’s consideration of the
minimal force involved in the collision. Layssard argues that under Louisiana
state law, the minimal force involved in a collision is not a significant
consideration in determining whether a plaintiff’s injuries were caused by an
accident. Layssard points to a number of Louisiana Court of Appeal decisions
that hold that the minimal forces involved in a collision, taken alone, cannot
establish a lack of injury resulting from the accident.
      In Seegers v. State Farm Mutual Automobile Insurance Co., a Louisiana
Court of Appeal held that “it would be a dangerous precedent to attempt to
measure the degree of injuries in direct proportion to the force of a collision.”7
There, the plaintiff complained of neck and back injuries after being rear-ended
by the defendant.8 The court determined that “[t]he testimony of both the
medical experts and the lay witnesses established the fact that [the plaintiff] did
sustain some injuries” and thus, “the minimal force of the collision [was] . . . of
no material importance.”9
      Similarly, in Desselle v. LaFleur, another Louisiana Court of Appeal
affirmed a trial court’s damage award where the plaintiff was involved in a
minor collision that caused the plaintiff’s head to fly forward, then backward,
hitting the headrest.10 The trial court found the plaintiff and her doctor to be
credible with respect to her complaints of pain and the doctor’s diagnosis.11
Though the defendant argued that the slight forces involved in the accident


      7
          188 So. 2d 166, 167 (La. App. 2d Cir. 1966).
      8
          Id. at 166-67.
      9
          Id. at 167.
      10
           03-562, p. 1 (La. App. 3 Cir. 2/4/04); 865 So. 2d 954, 955-56.
      11
           Id. at p. 5; 865 So. 2d at 957.

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                                             No. 08-30884

could not have caused the injury, the court noted that “there is not even a slight
indication by the medical evidence and witness testimony that Ms. Desselle
feigned her neck and back injuries following the accident.” 12 Therefore, the court
concluded that the trial court had not abused its discretion in granting the
award.13
      Finally, in Ursin v. Russell, a Louisiana Court of Appeal affirmed a trial
court’s finding that the plaintiff’s injuries were caused by a car accident where
the severity of the impact from the collision was the subject of contradictory
testimony.14 Anya Ursin was driving a car with her mother and nephew as
passengers when it was rear-ended by an eighteen-wheeler.15 An eyewitness
testified that the accident appeared to be a slight bump and that Ursin did not
appear to be injured.16 Ursin testified that the impact was more than minor and
pushed the car forward a few feet.17 She also testified that the impact was
enough to cause her nephew’s car seat to fly into the back of her seat and that
a harness strap on the car seat broke.18                The trial court credited Ursin’s
testimony over the eyewitness’s, finding that because the witness was not
involved in the accident, he could only speculate as to the impact felt by the




      12
           Id. at p. 7; 865 So. 2d at 959.
      13
           Id.
      14
           07-859, p. 9 (La. App. 5 Cir. 2/6/08); 979 So. 2d 554, 559-60.
      15
           Id. at p. 2-3; 979 So. 2d at 556.
      16
           Id. at p. 6; 979 So. 2d at 558.
      17
           Id. at p. 8; 979 So. 2d at 559.
      18
           Id. at p. 3-4; 979 So. 2d at 557.

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                                             No. 08-30884

parties.19 The court of appeal found no manifest error in the trial court’s finding
that the accident caused Ursin’s injury.20
      These cases at best establish that the question of whether a plaintiff’s
physical injuries were caused by a car accident is a factual finding within the
trial court’s discretion and that courts should not measure the degree of injuries
by looking at the force of the collision alone. Here, the trial court’s conclusion
that Layssard was not injured by the accident did not arise solely from its
conclusion that the forces involved in the accident were minor. The trial court
relied on Perry’s testimony, which the court said “leaves the clear impression
that Mr. Layssard’s post-accident doctor’s visits were part of an opportunistic
scheme to get treatment for pre-existing injuries which were not, in fact,
aggravated by the accident.” The trial court also relied on testimony from
witnesses indicating that Layssard did not mention being injured on the day of
the accident, as well as Layssard’s general credibility problems. The trial court
thus did not clearly err in concluding that the accident did not cause Layssard’s
injuries or exacerbate pre-existing injuries.
                                        *         *         *
      The district court’s judgment in favor of the defendant is AFFIRMED.




      19
           Id. at p. 9; 979 So. 2d at 559.
      20
           Id. at p. 9; 979 So. 2d at 560.

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