Gongora v. Snay

• Decision Date: 26 October 1993
• Docket Number: No. 93-CA-322,93-CA-322
• Citation: Gongora v. Snay, 626 So.2d 759 (La. App. 1993)
• Parties: Maria Cruz GONGORA and Maricruz Hernandez v. Linda L. SNAY, American National General Insurance Company, and State Farm Mutual Automobile Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

Page 759

626 So.2d 759

Maria Cruz GONGORA and Maricruz Hernandez v. Linda L. SNAY, American National General Insurance Company and State Farm Mutual Automobile Insurance Company.

No. 93-CA-322.

Court of Appeal of Louisiana Fifth Circuit.

Oct. 26, 1993.

Writ Denied Jan. 28, 1994.

Daniel B. Snellings, James Minge, James Minge & Associates, New Orleans, for plaintiffs/appellants Maria Cruz Gongora and Maricruz Hernandez.

Camilo K. Salas III, Valerie A. Welz, Sessions & Fishman, New Orleans, Roger J. Larue, Metairie, for defendants/appellees Linda L. Snay and State Farm Mut. Auto. Ins. Co.

Before GAUDIN, GOTHARD and CANNELLA, JJ.

CANNELLA, Judge.

Plaintiffs, Maria Cruz Gongora (Gongora) and Maricruz Hernandez (Hernandez), appeal from the judgment rendered against defendants, Linda Snay (Snay) and State Farm Mutual Automobile Insurance Company, because the amounts awarded were too low. For the reasons which follow, we affirm.

On September 30, 1988, Hernandez, was operating a 1984 Toyota pick-up truck on Whitney Avenue at its intersection with Belle Chasse Highway. Gongora, the mother of Hernandez, was a guest passenger. The vehicle was stopped at a traffic light when it was hit in the rear, left corner by a 1982 Pontiac driven by Snay. It is undisputed that Snay was the sole and proximate cause of the accident. As a result of the collision, plaintiffs allegedly suffered injuries to their low backs and necks, were treated the day of the accident at the emergency room of Meadowcrest Hospital and were released. Plaintiffs saw various doctors over the next several years. In 1991, Gongora underwent a spinal fusion and Hernandez underwent a lumbar medial branch neurotomy at four levels.

Plaintiffs sued defendants to recover for the injuries that they had sustained. ¹ The case was tried before a jury on April 15, 1992 and a verdict was returned in favor of Hernandez for $304.24 and Gongora for $350.71, the amounts spent at the hospital emergency room. Thereafter, the trial judge granted a Judgment Notwithstanding the Verdict (JNOV), for the limited purpose of awarding each plaintiff $500 in general damages.

Plaintiffs appeal, assigning four errors. First, they contend that the trial court erred in allowing defendants to cross-examine plaintiffs and a witness concerning prior accidents, lawsuits and injuries. Second, they argue that this evidence unfairly prejudiced the jury against them, causing the very low damage awards. Third, plaintiffs argue that the amount awarded is so low that it constitutes clear error in both the jury verdict and the JNOV. Fourth, they argue that the trial judge erred in charging the jury on the weight which may be given pleadings from another lawsuit, because those pleadings should not have been admitted.

Defendants contend that admission of the previous lawsuits and injuries was proper, because it was not admitted solely to prejudice the plaintiffs, but rather was relevant in showing the plaintiffs' pre-existing physical conditions and contradictory statements. It showed their lack of credibility. Defendants also argue that where the plaintiffs' injuries were strenuously contested the jury charges were an accurate reflection of the law and, accordingly, the jury verdict was appropriate under the circumstances of this case.

The accident occurred on September 30, 1988 and Hernandez had been in another accident in April of that same year in which she had suffered back and neck injuries. She had last seen a doctor concerning these prior injuries, just four days before this accident, on September 26, 1988. Following this accident, she was treated at the Meadowcrest Hospital emergency room and was released. She thereafter saw Dr. Klainer, a different doctor than the one she was seeing for the April injury. She visited Dr. Klainer's office five times, complaining of back and neck pains. The last examination was negative and the MRI results showed no problems. Dr. Klainer discharged Hernandez. Thereafter, she made an appointment with Dr. Friedman, complaining that she was still in pain and that Dr. Klainer was not helping her. She kept the next appointment with Dr. Friedman in May of 1989, but then missed her July appointment. Dr. Friedman did not find any objective evidence to corroborate the complaints of pain. Hernandez testified that he was not helping her because he was only telling her to take Tylenol, which did not stop the pain. She then started going to a chiropractor, Dr. VanWormer. She went to him for several months but did not feel like she was getting relief. During this time, in July of 1989, she suffered another fall, injuring her elbow and hip. She then went to Dr. Leclercq in December of 1989. He reviewed her MRI results and did not find a problem. She thereafter returned to Dr. Friedman for more visits and then went back to Dr. Leclercq in January of 1991, complaining of pain going down her right hip. Dr. Leclercq then recommended a lumbar facet arthrography, which revealed some facet joint problems, and he subsequently performed the lumbar medial branch neurotomy at four levels. However, Dr. Levy, the defense expert neurosurgeon, testified that it was not a procedure he would use, or that most neurosurgeons would use because of its unreliability. There was also evidence showing that when Hernandez filled out the forms at the various doctors' offices, she did not disclose information about previous injuries or pain in her back. It is from these actions that the jury could have found her less credible.

The evidence concerning Gongora was of a similar nature. She suffered a slip and fall accident in 1980, injuring her back and neck at that time. In 1986, she was involved in a rear end collision, where her back and neck were again injured. In 1988, after the rear-end collision which is the subject of this lawsuit, she again testified to pain in her back and neck. She went to several different physicians between the time of the accident in 1988 and the time on which she was operated in 1991. After the emergency room visit to Meadowcrest, she first went to Dr Klainer who had her undergo an MRI. It showed no significant abnormalities, no nerve impingement, but bulges that would be normal of a woman her age. There was no disc herniation evident in either the MRI or the CAT scan at that time. She went to Dr. Friedman in April and May of 1989 and then not again until June of 1990. Between May of 1989 and June of 1990 she went to Dr. Vanwormer. He testified that she was doing better although she verbally denied to him that she had any improvement. She first saw Dr. Leclercq, the neurosurgeon, in December of 1989. When he first tested her he found no objective evidence of any nerve impingement and diagnosed degenerative arthritis. However, in 1991 when she returned to him, he did find signs of nerve involvement. She showed evidence of impingement that was not shown previously in similar tests. She then went back to Dr. Friedman in May of 1991 for a EMG which was now positive. Finally, at this time, Dr. Leclercq recommended and performed a spinal fusion on Gongora. Defense counsel introduced evidence that Gongora hurt...