93-979 La.App. 5 Cir. 3/29/94, Langlinais v. Figueroa
| Decision Date | 29 March 1994 |
| Citation | 636 So.2d 983 |
| Parties | 93-979 La.App. 5 Cir |
| Court | Court of Appeal of Louisiana — District of US |
Joseph E. Corte, Lombart & Corte, New Orleans, for plaintiff/appellant, Paul E. Langlinais.
Thomas C. Cowan, Christovich & Kearney, New Orleans, for defendant/appellees, Solon Automated Services, Inc. and Old Republic Ins. Co.
Before BOWES, GOTHARD and CANNELLA, JJ.
[93-979 La.App. 5 Cir. 1] BOWES, Judge.
Plaintiff-appellant, Paul E. Langlinais (hereinafter "Langlinais"), appeals a judgment of the district court awarding him $10,500.00 in damages, plus legal interest, costs, and expert fees against defendants, Solon Automated Services, Inc. and Old Republic Insurance Company (referred to for convenience hereinafter simply as "defendants"). We affirm.
Langlinais was injured on September 14, 1988 when his vehicle was struck in the rear by a truck driven by Ronald Figueroa. Plaintiff filed suit against Figueroa, who was working in the course and scope of his employment, Figueroa's employer, Solon Automated Services, and its insurer, Old Republic, as well as against his own UM carrier (who is not involved in the controversy before us).
The case was tried before a jury on March 1 through March 4, 1993. A verdict was returned finding that Figueroa was negligent, and that plaintiff was not. [93-979 La.App. 5 Cir. 2] Figueroa's negligence was determined to be a legal cause of part, or all, of plaintiff's injuries; the jury awarded $1,000.00 for past medical expenses, and $1,500.00 for past lost wages, but no recovery whatsoever of any general or other special damages. Plaintiff filed a post verdict motion for "judgment notwithstanding the verdict" (JNOV), for new trial or in the alternative, for additur. The trial court granted the JNOV, awarding plaintiffs an additional $8,000.00 in damages for pain and suffering. Finding that a JNOV as to one element of damages "may not be found appropriate," the court conditionally granted the motion for new trial permitting defendants to consent to an additur in the amount of $8,000.00 as an alternative to a new trial. Plaintiff appeals the final judgment.
Langlinais assigns the following errors:
1. The trial court erred in allowing the jury to consider a reported decision in an unrelated case, in which case the trial court indicated that Langlinais' treating physician had performed surgery to the detriment of his patient; the court erred in permitting defendant-appellee's counsel to distribute partial copies of this reported case to the jury, and in permitting defendant-appellee's counsel to argue to the jury that his case was proof that Dr. Watermeier performed unnecessary and detrimental surgeries.
2. The trial court erred in allowing defendant-appellee's counsel to question Mr. Langlinais concerning his property damages, when no claim was made therefor, and in allowing unverified and incomplete estimates of property damage into evidence in connection with the argument of defendant-appellee's counsel that since the property damage was minimal, Mr. Langlinais could not have a serious physical injury.
3. The trial court erred in permitting counsel for defendant-appellee to interject as evidence his own irrelevant, uncorroborated "medical testimony" and in permitting counsel for defendant-appellee to misstate the evidence, argue with [93-979 La.App. 5 Cir. 3] witnesses and impugn their integrity, in a manner that prejudiced, confused, and misled the jury.
4. The trial court abused its discretion in awarding damages so low in proportion to the injury that it shocks the conscience. However, because of the foregoing errors at the trial level, appellant argues that this Court should order a new trial, or, in the alternative, a De Novo standard of review should be applied rather than merely adjusting the damage award entered by the jury and trial court.
On September 17, 1988, several days after the rear end collision, plaintiff sought medical help in the emergency room at West Jefferson Hospital. He had been experiencing a burning sensation in his neck, soreness and headache. He was treated there for a cervical strain and released. Plaintiff's attorney referred him to Dr. David Aiken, a general surgeon, who also diagnosed an acute cervical dorsal sprain. Dr. Aiken prescribed physiotherapy and gave Langlinais some injections, along with some pain medication. After several visits, by October 20, 1988 (according to Dr. Aiken), plaintiff had improved, had increased his activities, and Dr. Aiken discontinued physiotherapy treatments. By November 10 he had continued to improve, although he experienced soreness after a day's work; on that date Dr. Aiken discharged him, noting on that date that plaintiff was "working hard." He had not seen any signs of a herniated disc or nerve root impairment, but would defer to the opinion of plaintiff's treating orthopedic surgeon (Dr. Watermeier).
In January, 1989, plaintiff began seeing Dr. Watermeier, an orthopedic surgeon, because he continued to have pain, in the testimony of Dr. Watermeier, Langlinais also complained of headaches. Following an examination, Dr. Watermeier diagnosed a possible cervical disc injury and recommended various diagnostic tests. Langlinais [93-979 La.App. 5 Cir. 4] underwent a CAT scan and an MRI, which latter test showed a herniated disc at C5-6. A cervical traction device was initially prescribed. By April, plaintiff had no neurological defects and no particular pain but, by May, he complained that he had intermittent pain at work in his neck and shoulder; after an examination, Dr. Watermeier felt plaintiff was stable with no increase in symptoms. By October, headaches had returned along with increased neck pain, and difficulty performing some activities. Dr. Watermeier gave him pain medication; by January of 1990, the headaches had become more frequent and he had increased neck and shoulder pain. He had a limited range of motion and the doctor suggested that surgery may be necessary if he did not improve. In March, 1990, following continued complaints, Dr. Watermeier recommended a discogram and a thermogram, which revealed a disc herniation at the C5-6 level. An anterior fusion was performed on April 20, 1990.
He did well following surgery until June, 1990, when a loud noise caused his head to jerk back suddenly, causing pain associated with numbness. Dr. Watermier felt the neck was still in a good position and in July released plaintiff to return to work. By February, 1991, plaintiff again complained of pain, and another MRI was performed in March of 1991, the results of which were inconclusive. Throughout 1991, plaintiff continued to have problems, and a second surgery was performed in November, 1991, at the same level, but to fuse the back of the neck. By February of 1991, plaintiff was stable. Dr. Watermeier stated that both surgeries were necessitated as a result of the accident in 1988, and awarded a "possible" 20% anatomical impairment to Langlinais.
Dr. Paul Frenselli, an orthopedic surgeon, examined plaintiff for the defendants several days prior to the first surgery and found no objective clinical findings of a herniated disc. The MRI performed for Dr. Watermeier, which was reviewed by Dr. Frenselli, indicated on the report itself a "patient motion artifact" which means that the plaintiff moved during the test, and which compromises and can render inaccurate test [93-979 La.App. 5 Cir. 5] results. Dr. Frenselli would have retaken the MRI and in the absence of definitive proof that there was a herniated disc, would not have performed the first surgery at that time. He did not believe that a second fusion from the back at the same level would have helped plaintiff since the first fusion was "very solid." Dr. Frenselli stated that thermography was not an accepted diagnostic test, and discography was used "on occasion."
Dr. Mark Juneau, also an orthopedic surgeon, examined Mr. Langlinais for the defendants in October of 1989, also prior to the first surgery. He also reviewed the MRI and concluded that Mr. Langlinais did not have a herniated disc and would not have operated on him at that time on the basis of his examination. Dr. Juneau also stated that thermography is no longer accepted by orthopedists and that within the last six months of trial, the American Academy of Orthopedic Surgeons went on record as stating that thermography had no value in the detection of ruptured discs. Dr. Juneau saw no reason to perform the second surgery at the same level.
Plaintiff testified that the initial physiotherapy had not been helpful, and he discontinued treatment with Dr. Aiken. He sought treatment with Dr. Watermeier for the continuing symptoms. After the first surgery he returned to work and while working, moved his neck so that he felt a sharp pain. Afterwards, he testified that his symptoms worsened and he began to feel numbness in his arms. After the second surgery he felt much improved. However, he is unable to work any longer in his profession as a carpenter. He is no longer able to engage in athletic activities, and is able to perform some household tasks with difficulty. Plaintiff missed three months of work after his first surgery, then worked until his second surgery. He did not return following that operation.
Other testimony, from plaintiff's wife, his foreman, an economist and rehabilitation counselors, need not be summarized for our purposes--because the issue [93-979 La.App. 5 Cir. 6] before us is whether the jury and trial court correctly determined causation in relation to plaintiff's injuries.
The negligence of the defendant,...
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