Austin v. Pascarelli
| Decision Date | 29 December 1992 |
| Docket Number | No. 90-CA-2233,90-CA-2233 |
| Citation | 612 So.2d 201 |
| Parties | Donna B. AUSTIN v. Joseph A. PASCARELLI, Popeye's Fried Chicken of Louisiana, Inc., et al. |
| Court | Court of Appeal of Louisiana — District of US |
Richard A. Tonry, Law Office of Tonry & Ginart, Chalmette, for plaintiff-appellee.
James W. Hailey Jr., William Ken Hawkins, Hailey, McNamara, Hall, Larmann & Papale, Metairie, William G. Cherbonnier Jr., Dwight Doskey, Harvey, for defendants-appellants.
Before LOBRANO, WARD and ARMSTRONG, JJ.
Plaintiff, Donna B. Austin, instituted this personal injury action against defendants, Al Copeland Enterprises, Inc. ("Copeland"), 1 Joseph Pascarelli, a Copeland employee Ideal Mutual Insurance Company, Copeland's insolvent insurer, and Louisiana Insurance Guaranty Association ("LIGA"), seeking damages for injuries she sustained when her vehicle was rear-ended by a company leased vehicle driven by Pascarelli. Following a jury trial, judgment was rendered in favor of plaintiff and against defendants in the amount of $513,000.00. Defendants now appeal. 2
On May 4, 1983, at approximately 12:00 a.m., defendant, Joseph Pascarelli, at that time an area supervisor for Copeland, rear-ended a vehicle being driven by plaintiff. Pascarelli had just left a Popeye's Fried Chicken outlet on St. Claude Avenue and was enroute to his home in Chalmette. As he passed by another Popeye's Fried Chicken outlet in his territory on Judge Perez Drive in Chalmette, Pascarelli was distracted when he noticed one of the Popeye's employees sitting on the counter talking on the telephone. Plaintiff, driving with a passenger directly in front of Pascarelli, slowed and came to a stop when a vehicle in front of her made a right hand turn. Pascarelli turned his attention back to the road and attempted to veer into the left hand lane to avoid striking plaintiff, but impacted the left rear portion of plaintiff's pickup truck. Pascarelli estimated he had been travelling at 30-35 miles per hour immediately before the accident, and 20-25 miles per hour upon impact. Plaintiff sustained injuries to her neck and left shoulder as a result of the accident.
On appeal, defendant raises five assignments of error. Defendant claims the trial court erred in refusing to continue the trial at the request of defense counsel; in allowing some of plaintiff's medical bills into evidence without a proper foundation; and in not granting defendant's motion for new trial or, in the alternative, a remittitur. Defendant also claims the jury erred in finding a causal connection between plaintiff's post-October 28, 1983 medical problems and the accident in question; and abused its discretion in awarding damages.
On the morning of trial, counsel for defendant Copeland, who was also representing defendant Pascarelli, moved for a continuance on the ground that a conflict of interest existed in his representation of Copeland and its employee, Pascarelli, against whom Copeland, through another attorney, had filed a cross-claim for indemnity. The attorney who filed the cross-claim against Pascarelli on behalf of Copeland withdrew from the case several months before trial. After hearing argument on the day of trial, the trial judge denied the request for a continuance but severed Copeland's cross-claim against Pascarelli.
La.C.C.P. art. 1601 provides that a trial court may grant a continuance in any case if there is good ground therefor. A trial court's ruling on a motion for continuance will not be disturbed on appeal absent a clear abuse of discretion. Sauce v. Bussell, 298 So.2d 832 (La.1974).
Copeland and/or LIGA had several months to secure additional counsel to represent themselves or Pascarelli. The trial court apparently balanced prejudicing plaintiff, who was ready for trial on the date set, and defendants, who had ample time to secure additional counsel but failed to do so. Considering these circumstances, we are unable to say that the trial court abused its discretion in severing trial of the cross-claim and denying the request for continuance.
Plaintiff next claims the trial court erred in finding a causal connection between any of plaintiff's medical problems after October 28, 1983 and the May 4, 1983 accident. On the night of the accident plaintiff was examined by a chiropractor with whom she was acquainted, Dr. Larry Bryant. 3 The night of the accident was the first time Dr. Bryant had ever treated plaintiff. She gave a history of having just been involved in a rear end collision. She said she was feeling pain in her left shoulder and her neck was stiff. She also said her chest was tender, and that she was having headaches. A physical exam revealed muscle spasm in her neck and shoulder area, and the area was tender to palpation. He also found moderate restrictions in cervical spine extension, lateral flexion, and rotation.
Dr. Bryant's initial diagnosis was traumatic cervical sprain and strain with "intervertebral disc syndrome." Dr. Bryant said he wasn't sure whether there was a herniation or rupture, or just a compression of the cervical disc. It was his impression that something was wrong with plaintiff's disc. He treated her conservatively, but in mid-July, recommended that she see an orthopedist. Dr. Bryant last treated plaintiff on September 7, 1983. He said as of that time he still believed she had either a herniation, rupture or compression of a cervical disc. He estimated plaintiff improved "maybe" 10% over the period he treated her.
Dr. James R. Gosey Jr., an orthopedist, treated plaintiff from May 10, 1983, some six days after the accident, to October 28, 1983. She gave a history of being involved in the recent automobile accident and being treated by a chiropractor. On examination, Dr. Gosey found tenderness in the neck, with a decreased range of motion and pain at the extremes. A compression test revealed pain on the right side. He did not find any nerve problems in her arms. His provisional diagnosis was cervical strain. At a visit on May 17, 1983, plaintiff still complained of significant problems with her neck. She still had significant spasm and tenderness on the right side of her neck and the range of motion was still two-thirds normal.
Dr. Gosey saw plaintiff four more times; the last visit was on October 28, 1983. He said she improved over that period but began to complain of left shoulder pain which he attributed to bursitis or tendonitis. He injected the shoulder with cortisone and it seemed to help. On the last visit, plaintiff was still complaining of headaches, "occasional" stiffness in the back of her neck, and mild tenderness in the left shoulder. He said he again advised her to see a neurologist about the headaches.
Dr. Gosey never performed a CAT scan, MRI, discogram, myelogram, or thermogram. He admitted that plaintiff's initial pain and spasm in her neck was consistent with either a sprain or a disc injury. He said as of the last few visits, the neck pain was "essentially" resolved and there were no findings to suggest a disc injury as of the time of discharge on October 28, 1983. He admitted that it was possible, and very common, for someone to have a bulge in the disc and yet not have pain or be symptomatic because of the bulge. Dr. Gosey also admitted that plaintiff complained of stiffness in her neck throughout the entire course of treatment.
Dr. Stuart Philips, an orthopedist, first examined plaintiff in late September 1983. On examination he found a limited range of motion in plaintiff's neck and muscle spasm in the back of her neck. He said x-rays of the neck were normal. His initial diagnosis was an injury to the ligaments holding the cervical disc, a strain, with a bruised back and chest. He felt she had been treated appropriately with conservative care. Dr. Philips said he thought it would take three to five months before he knew what was wrong with her. He said that if she did not get well, eventually, he would do some tests. He felt conservative treatment for approximately a year was reasonable.
Dr. Philips did not see plaintiff again until March 4, 1985. At that time she was still complaining of neck and shoulder pain and pain in her left arm. She informed him that she had been treated by Dr. Gosey. She was still following his prescribed course of conservative treatment, using a home traction device and taking medication prescribed by him. A CAT scan ordered by him and done April 22, 1985 revealed a small spinal canal with no other abnormality. However, he said this finding made him suspect a probable disc injury. A thermogram done that same day showed nerve irritation in plaintiff's arm. A subsequent discogram showed a tear in the ligament and the disc at the C4-C5 level of plaintiff's cervical spine.
Following the discogram, Dr. Philips continued to treat plaintiff conservatively. However, in October 1985, she returned to him complaining of what he described as acute and severe pain. Dr. Philip removed the disc on October 28, 1985 and performed a fusion which ultimately did not take. In November 1985, after the surgery and fusion, plaintiff reported that her neck was okay and she had no complaints of arm or head pain. In December 1985 she complained of shoulder pain but Dr. Philips thought it was bursitis. In January 1986 she reported some neck pain. As of April 1986 she had gone back to work as a cosmetologist, and was only taking a tranquilizer for medication. As of that time, Dr. Philips estimated plaintiff as having a 20% loss of function in her cervical spine.
In July 1986 plaintiff reported a recurrence of neck pain and headaches, and complained of numbness in her fingers. Dr. Philips stated that a CAT scan taken around that time showed that the fusion had not taken. He said it looked like scar tissue, fibrous tissue, had grown in the joint. He said this type of recovery after a fusion tends to be a pain generator. Dr. Philips last saw plai...
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