Cleland v. City of Lake

• Decision Date: 05 March 2003
• Docket Number: No. 01-1463.,No. 02-805.,02-805.,01-1463.
• Citation: 840 So.2d 686
• Parties: Terry and Ruth CLELAND v. CITY OF LAKE CHARLES, et al. Terry and Ruth Cleland v. City of Lake Charles, et al.
• Court: Court of Appeal of Louisiana — District of US

840 So.2d 686

Terry and Ruth CLELAND v. CITY OF LAKE CHARLES, et al. Terry and Ruth Cleland v. City of Lake Charles, et al.

No. 02-805.

No. 01-1463.

Court of Appeal of Louisiana, Third Circuit.

March 5, 2003.

Rehearing Denied April 16, 2003.

COPYRIGHT MATERIAL OMITTED

John Bradford, Todd Ammons, Stockwell, Sievert, Viccellio, Clements & Shaddock, Lake Charles, LA, for City of Lake Charles and Gerard Jones.

Christopher P. Ieyoub, Plauche, Smith & Nieset, Lake Charles, LA, for Calcasieu Parish School Board and Washington National Insurance Company.

Thomas Lorenzi, David D. Palay, Jr., Lorenzi, Sanchez & Palay, L.L.P., Lake Charles, LA, Earl G. Pitre, Pitre, Halley & Sikich, Lake Charles, LA, for Terry E. Cleland and Ruth P. Cleland.

Thomas Justin Miller, Waller & Associates, Mandeville, LA, for Automobile Insurance Company of Hartford, Connecticut.

Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G: SULLIVAN, and BILLY H. EZELL, Judges.

THIBODEAUX, Judge.

In this personal injury case arising out of a motor vehicle accident involving an employee of the City of Lake Charles (the City) and Terry E. Cleland, the plaintiffs, Terry E. Cleland and Ruth P. Cleland, appeal a judgment of the trial court, entered pursuant to a jury verdict, which found Mr. Cleland to be thirty-one percent at fault in the vehicular accident and in awarding them what they consider to be abusively low medical expenses and general damages. They assail the decision of the trial judge to allow a biomechanics expert to testify on the issue of causation. The City's answer to the Clelands' appeal asserts that the trial court erred in assessing it with payment of one-hundred percent of the court costs and the jury erred in finding that it and Gerard Jones, the City employee involved in the accident with Mr. Cleland, to be sixty-nine percent at fault in causing the accident.

Mrs. Cleland, an employee of the Calcasieu Parish School Board (School Board), was covered by a health insurance policy issued to the School Board by Washington National Insurance Company (Washington National). The School Board and Washington National appeal the trial court's judgment in favor of the Clelands relieving them from reimbursement of medical bills it paid for the injuries suffered by Mr. Cleland in the accident. Further, the School Board asserts that the trial court erred in failing to declare that it no longer owes health insurance coverage to the Clelands. Further, it asserts that the amounts awarded by the jury for general damages and medical expenses were abusively low.

For the following reasons, we find that the trial judge erred in admitting the testimony of Dr. Scott Krenrich, the City's expert on biomechanics. The jury did not err in its apportionment of thirty-one percent fault to Mr. Cleland and sixty-nine percent fault to the City and Mr. Jones. Further, we find that, because the trial judge improperly admitted the testimony of Dr. Krenrich, and we cannot determine the weight the jury accorded his testimony in reaching its decision on the amount of damages, we remand the case to the trial court on the issue of damages. With respect to the School Board and Washington National's assignments of error, we find that the trial court did not err with regard to the health insurance coverage and reimbursement issues. We also conclude that the trial court correctly assessed court costs.

I. ISSUES

We shall consider whether:

(1) the trial court erred in the admission of Dr. Krenrich's testimony;

(2) the allocations of fault to the parties were proper;

(3) the trial court erred in refusing to order the Clelands to reimburse the School Board and Washington National for the medical expenses they paid to the Clelands; and,

(4) the School Board no longer owes health insurance benefits to the Clelands.

II. FACTS

The essential facts of the accident are not in dispute. On October 18, 1991, Mr. Cleland was driving a 1988 Ford Thunderbird automobile. At the same time, Mr. Jones was operating a pick-up truck owned by the City. Mr. Jones was in the course and scope of his employment with the City when he made a wide right turn and sideswiped the Cleland vehicle. Mr. Jones looked down for a few seconds to pick up some papers that had fallen on the floorboard of the truck. Mr. Cleland attempted to avoid the impact by turning his vehicle to the right. The impact occurred in Mr. Cleland's lane of travel. The right tire of the Cleland vehicle came to rest in the yard next to his land of travel. Mr. Jones was ticketed for careless operation by the officer who investigated the accident.

At the time of the accident, Mr. Cleland had been under the care of Dr. Dean Moore, a neurosurgeon, for problems related to his lower back since 1981. Mr. Cleland admitted to a long history of lower back problems. In July 1986, Mr. Cleland underwent a lumbar laminectomy from which he recovered and returned to work in February 1987. However, by March 1987, Mr. Cleland complained of pain in his left buttocks. He continued to complain of pain and resumed care with Dr. Moore. Mr. Cleland did not go back to work until September 1987, when Dr. Moore released him to full duty. During this time Mr. Cleland was also seeing Dr. Harper Willis, a psychiatrist, who was deceased at the time of trial.

On August 23, 1988, Mr. Cleland was involved in a motor vehicle accident where he suffered a lumbar strain and concussion. By September 12, 1988, Mr. Cleland had recovered from his injuries and was again released to return to work at full duty. In January 1989, Mr. Cleland complained about severe headaches and being unsteady on his feet. The next time Mr. Cleland saw Dr. Moore about his low-back problems was on April 3, 1989, when Mr. Cleland informed the doctor that he tripped on some computer cords at work and twisted his back. Mr. Cleland also injured his foot and broke a tooth in the trip-and-fall accident.

Medical diagnostics tests revealed that Mr. Cleland suffered slight bulging of the disks and scar tissue from his previous laminectomy at L5-S1. An MRI revealed mild degenerative changes of the second, third, and fourth disk and annular bulging at the L4 disk. An EMG study, a test that shows the electrical activity of the muscles and nerves in the back and legs, revealed signs of root lesion on the right side of Mr. Cleland's back at the S1 level. By January 1990, Mr. Cleland still complained of back pain radiating down his left leg. However, by March 1990, Mr. Cleland's radiating pain reached his right leg. A myelogram was conducted on July 26, 1990, that revealed a mild to moderate anterior defect at L4-L5. Dr. Moore felt that Mr. Cleland would need more surgery on his back.

On October 4, 1990, Mr. Cleland underwent a second surgery for a laminectomy at the L4-L5 and a three level fusion of the L5-S1 vertebrae. Mr. Cleland saw Dr. Moore again on October 29, 1990, and he complained about some pain and stiffness in his back. Dr. Moore concluded that it was incisional pain and that Mr. Cleland was doing well. Mr. Cleland also told Dr. Moore about being involved in an accident that occurred in June 1990, prior to his surgery in October 1990. Mr. Cleland explained to Dr. Moore that he did not tell him about the June 1990 accident because he was afraid that workers' compensation would not pay for his surgery and that he was in pain and wanted the surgery done.

At his February 1991 visit with Dr. Moore, Mr. Cleland told the doctor that he had been doing well until he sneezed and experienced a sudden onset of pain in his low back that radiated to the back of his right leg with associated numbness and tingling. Since it was only four months post-operation, Dr. Moore suggested that some time pass to see if the pain would subside. When he continued to complain about his low back pain in March 1991, Dr. Moore ordered diagnostic tests. An MRI revealed some scar tissue, mild effuse annular bulging, mild bilateral neural foraminal narrowing at L4-L5 and at L5-S1 it showed some scar tissue. A tomogram, a special type of x-ray conducted by Dr. R. Dale Bernauer, an orthopedic surgeon, showed that the fusion performed six months prior was solid.

Mr. Cleland continued to complain of pain, but his treating physicians did not think his pain could be relieved by further surgery. Thus, Mr. Cleland was referred to the Touro Clinic in New Orleans for pain management treatment. Mr. Cleland was evaluated at the Touro Clinic on June 5, 1991, and Dr. Moore recommended that he be accepted into the pain clinic. Mr. Cleland, however, was not accepted. Dr. Moore continued to treat Mr. Cleland and saw him in July 1991 and September 1991. During those visits, Mr. Cleland complained of increasing pain in his back and both legs. Dr. Moore was still attempting to get authorization for Mr. Cleland to be treated at the Touro Clinic. During an October 7, 1991 visit, Mr. Cleland continued to complain about his back and leg pain. In addition, he complained that his knee was in pain and that he experienced numbness in his face. The face numbness did not last very long.

Although at his last visit Dr. Moore recommended that Mr. Cleland return in two months, the doctor next saw Mr. Cleland on October 26, 1991, because he had been involved in the automobile accident that is the subject of this appeal on October 18, 1991. Dr. Moore testified that Mr. Cleland gave him the following history: He said he didn't know if he hit his head on anything, but he thinks he was briefly unconscious immediately after the accident, only just a few seconds. He was dazed somewhat. Been having some headaches since then. They were located in the back of the head. Often they became generalized in nature. He also noted that light would tend to bother his eyes. He had some blurring of his vision. He's had decreased hearing in the left ear, but he had this before the accident and there seemed to be no change since the accident. Also said he'd been...