Opinion
2017 CA 0874
04-09-2018
JOHN N. ROUGAS v. JOSE A. ORTEGA-MARTINEZ AND ROSA MARIE ORTEGA-MARTINEZ, US AGENCIES INSURANCE COMPANY, AND USAA INSURANCE COMPANY
Kenneth M. Henke Lafayette, Louisiana Counsel for Plaintiff/Appellant John N. Rougas Kyle S. Landrem Anthony M. Butler Baton Rouge, Louisiana Counsel for Defendant/Appellee US Agencies Insurance Company Michael G. Gee Lloyd T. Bourgeois Michelle D. Brooks Maria E. Mitchell Thibodaux, Louisiana Counsel for Defendant/Appellee USAA Insurance Company
NOT DESIGNATED FOR PUBLICATION On Appeal from the Thirty-Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana
No. 169.884 Honorable Juan Pickett, Judge Presiding Kenneth M. Henke
Lafayette, Louisiana Counsel for Plaintiff/Appellant
John N. Rougas Kyle S. Landrem
Anthony M. Butler
Baton Rouge, Louisiana Counsel for Defendant/Appellee
US Agencies Insurance Company Michael G. Gee
Lloyd T. Bourgeois
Michelle D. Brooks
Maria E. Mitchell
Thibodaux, Louisiana Counsel for Defendant/Appellee
USAA Insurance Company BEFORE: WHIPPLE, C.J., McDONALD, and CHUTZ, JJ. WHIPPLE, C.J.
This matter is before us on appeal by plaintiff, John Rougas, from a judgment of the trial court rendered in conformity with a jury's verdict finding that plaintiff did not suffer injuries as a result of the subject automobile accident. For the following reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND
On July 1, 2012, John Rougas was traveling in a Mitsubishi Eclipse on Louisiana Highway 57 in Houma, Louisiana when the front-driver side of his vehicle was struck by a left-turning vehicle being operated by Jose Ortega-Martinez.
On June 26, 2013, Rougas filed a petition for damages against Ortega-Martinez, US Agencies Casualty Insurance Company, Inc. (insurer of the Ortega-Martinez vehicle), and USAA Insurance Company (UM insurer of the Rougas vehicle). US Agencies paid its policy limits in exchange for a full release, and thereafter, Rougas dismissed all claims against Ortega-Martinez and US Agencies.
The matter then proceeded to a jury trial against USAA on May 31, 2016 through June 3, 2016. At trial, Rougas testified that at the time of the accident, he was working as a helicopter pilot for Petroleum Helicopters, Inc. (PHI), earning an approximate annual salary of $86,578.00. Rougas testified that he continued to work for two years after the accident, however, problems with his left hand continued to worsen, and he ultimately decided to ground himself from flying on or about July 14, 2014. PHI then terminated his employment on July 21, 2014. Accordingly, in his personal injury suit, Rougas sought general damages and damages for past and future lost earnings for the injuries he allegedly sustained in the July 1, 2012 accident.
After hearing conflicting medical testimony and lay testimony regarding the reason for Rougas's termination from PHI, the jury found that Rougas failed to prove by a preponderance of the evidence that he suffered injuries as a result of the July 1, 2012 accident. Accordingly, in conformity with the jury's verdict, the trial court rendered judgment on July 22, 2016, in favor of USAA, dismissing Rougas's claims with prejudice. Rougas filed a motion for judgment notwithstanding the verdict, which the trial court denied.
Rougas then filed the instant appeal from the July 22, 2016 judgment, assigning the following as error:
(1) The jury erred in finding that Rougas was not injured in the July 1, 2012 accident when a review of the Chabert Hospital records and testimony of his treating physician clearly shows that he was injured in the accident.
(2) The trial court erred in allowing the jurors to review video depictions of Rougas engaged in certain activities despite Rougas's testimony and his treating physician's testimony that he was capable of performing these activities due to the prescriptions he was taking, but these prescriptions would preclude him from piloting a helicopter.
(3) The jury erred in disregarding the testimony of Rougas's treating neurologist who testified and opined that Rougas's problems were caused by the accident and precluded him from acting as a helicopter pilot. The jury also disregarded the fact that Rougas's prescribed drugs allowed him to function normally, with minimum pain, but precluded him from functioning as a helicopter pilot under federal regulations.
DISCUSSION
Surveillance Video
(Assignment of Error Number Two)
Rougas contends in his second assignment of error that the trial court erred in admitting a surveillance video of him washing his car and cleaning his neighbor's gutters. If a trial court commits an evidentiary error that interdicts its fact-finding process, this court must conduct a de novo review. Thus, any alleged evidentiary errors must be addressed first on appeal, inasmuch as a finding of error may affect the applicable standard of review. Penton v. City of Hammond Police Department, 2007-2352 (La. App. 1st Cir. 5/2/08), 991 So. 2d 91, 95. Accordingly, we will first address this evidentiary challenge.
Rougas argues that, despite his objection, the trial court erroneously allowed the jury to view an extended video of him engaging in various activities using his left arm. Rougas contends that the video was highly prejudicial because: (1) he never denied doing the activities depicted in the video; (2) the activities depicted in the video did not depict what he had to do as a pilot; and (3) the video was taken when he was on pain medication that prevented him from piloting a helicopter.
The determination of whether a surveillance video is admissible is largely within the discretion of the trial court. Olivier v. LeJeune, 95-0053 (La. 2/28/96), 668 So. 2d 347, 351. Similar to Olivier, in the instant case, after determining that the surveillance video was admissible, the trial court did not limit either party from making arguments to the jury as they deemed necessary and advisable. Moreover, Rougas availed himself of the opportunity offered by the trial court to counter any purported "false impression" generated by the viewing of the events depicted in the video. See Olivier, 668 So. 2d at 351. Rougas specifically testified that the video did not depict activities that he had to perform as a pilot, and further, that he was on pain medication at the time of the video that allowed him to perform the videotaped activities with minimal pain, but prevented him from piloting a helicopter under federal regulations. Rougas further testified that part of the video, which showed him dropping various things, was omitted when it was shown to the jury.
On review, we find no error or abuse of discretion in the trial court's ruling which allowed the surveillance video to be admitted in evidence. The video was clearly relevant, even though Rougas admitted to being able to perform the activities shown. Any challenge by Rougas to the video is a matter of the weight to be given to the evidence, and not its threshold admissibility as relevant evidence. Therefore, Rougas was not prejudiced by the video, which showed nothing more than Rougas engaging in activities which he admitted that he was capable of performing as he claimed to the jury. See Olivier, 668 So. 2d at 351.
Accordingly, we find no abuse of discretion by the trial court in admitting the disputed surveillance video into evidence. This assignment of error lacks merit.
Cause-in-Fact of Injuries
(Assignments of Error Numbers One and Three)
In these assignments, Rougas challenges the jury's factual finding that he was not injured in the subject automobile accident despite testimony from his treating neurologist that the accident caused his injuries and despite testimony that pain medication for his injuries allowed him to function normally, but precluded him from functioning as a helicopter pilot under federal regulations.
To recover for damages in a personal injury suit, the plaintiff must prove, by a preponderance of the evidence, both the existence of the injuries and a causal connection between the injuries and the accident. Richardson v. Bridgefield Casualty Insurance Company, 2014-1587 (La. App. 1st Cir. 8/10/15), 181 So. 3d 61, 64. The test for determining the causal relationship between the accident and injury is whether the plaintiff proved through medical testimony that it is more probable than not that the injuries were caused by the accident. Richardson, 181 So. 3d at 64.
The determination that a defendant's conduct was a cause-in-fact of the plaintiff's injuries is a factual determination subject to the manifest-error standard of review. A reviewing court must not reverse a trial court's factual determination unless, after reviewing the entire record, it finds: (1) that a reasonable factual basis does not exist for the finding, and (2) that the record establishes that the factfinder is clearly wrong or manifestly erroneous. Roberts v. Rudzis, 2013-0538 (La. App. 1st Cir. 5/28/14), 146 So. 3d 602, 609, writ denied, 2014-1369 (La. 10/3/14), 149 So. 3d 797.
In the instant case, Rougas testified that on July 1, 2012, while driving from Lafayette to Houma, he was proceeding through a green light when his vehicle was struck by a SUV, and the next thing he knew was that a police officer was knocking on his window. The SUV hit the front-left part of his car and the driver's side door. Rougas was transported by ambulance to Leonard J. Chabert Medical Center with complaints of left arm and left leg pain, numbness, headaches and hitting his "funny bone" on his left arm. While on the stretcher, the paramedic took a picture of him with his cell phone at his request. At Chabert, he was diagnosed with a cervical strain and an ulnar contusion, and was advised to follow up with a neurologist or primary care physician.
According to Rougas, he then returned to his home in Clearwater, Florida, as he could not find a neurologist in the Houma area to see him over the Fourth-of-July weekend. Rougas's first visit with Dr. Huntley, a neurologist in Florida, was on July 13, 2012, twelve days after the accident. Dr. Huntley testified, via videotaped desposition, that on this initial visit, Rougas had complaints of numbness and pain in his left arm and twitching in his left hand. Dr. Huntley's physical examination revealed that Rougas was having shooting pain at the ulnar nerve in his elbow and dexterity issues in his left hand. Dr. Huntley continued to see and treat Rougas, and Rougas continued to present with complaints of numbness in his left hand, dropping things, and an ongoing rash on his left arm. His ongoing physical examinations showed the same patterns of numbness and finger-spreading weakness in his left hand. Dr. Huntley testified that he concluded that Rougas had a brachial plexus injury, for which little can be done, and perhaps an ulnar nerve injury. In his opinion, it was far more likely than not that Rougas's complaints and problems were a result of the July 1, 2012 accident. Dr. Huntley also testified about the subjective aspects of the tests performed during Rougas's physical examinations and the fact that it was unclear exactly where Rougas's injury was because he could not prove it with electrical studies. Dr. Huntley acknowledged that Rougas had undergone three EMGs and nerve conduction studies, with the last one having added emphasis on the brachial plexus location, and that all of these studies were normal. Nonetheless, Dr. Huntley testified that the EMG results did not discredit his diagnosis of Rougas's injuries.
At trial, USAA offered the medical testimony of Dr. Laguna and Dr. Liechty, via their videotaped depositions. Dr. Laguna was Rougas's treating flight physician. To maintain his certification as a first-class pilot, Rougas saw Dr. Laguna every six months. Dr. Laguna saw Rougas five times prior to this accident and four times after the accident. During each of these examinations, Rougas reported no complaints, other than complaints of a "very minor tremor" in his left fingers on December 19, 2012, and his physical examinations were normal. Accordingly, Dr. Laguna continued to clear Rougas to fly. Dr. Laguna acknowledged that pilots do not always "volunteer all their complaints" to him because they want to keep flying. He also acknowledged that some of the medications prescribed by Dr. Huntley to Rougas were not on the approved-medication list issued by the Federal Aviation Administration. Additionally, Dr. Laguna acknowledged that when a pilot voluntarily grounds himself because of physical problems, he is fulfilling his professional obligation.
Dr. Liechty, a neurosurgeon, performed an independent medical examination on Rougas on November 3, 2014. Dr. Liechty reviewed Rougas's records from Dr. Huntley, noting that on his initial visit after the accident, Rougas's symptoms were reported as mild and that it was not until eight months after the accident that Rougas reported pain and was prescribed an anti-inflammatory medication. Additionally, Dr. Liechty noted that it was not until August of 2013, about a year after the accident, that Dr. Huntley added the diagnosis of ulnar neuropathy to the previous brachial plexopathy diagnosis. Thus, Dr. Liechty testified that there were a number of "inconsistencies" regarding Rougas's injuries and diagnosis. Dr. Liechty testified that an eight-month delay in reporting pain is not consistent with a brachial-plexus injury, and moreover, that brachial plexus issues and ulnar nerve issues usually result from a reach or stretch injury with the arm going upward, which would not occur in an automobile accident of this nature. Dr. Liechty further testified that the EMGs did not support Dr. Huntley's diagnosis of a brachial plexus injury. Accordingly, Dr. Liechty's opinion was that the trauma from the July 1, 2012 automobile accident "only minimally" contributed to Rougas's complaints.
The jury also heard testimony from PHI's field human resources manager, John Sage. As part of Sage's testimony, Rougas's employee records were introduced into evidence, including several pilot training progress reports from both before and after the July 1, 2012 automobile accident. While Rougas had merited some satisfactory marks on the pilot training progress reports, his reports also noted unsatisfactory performance for various categories, as well as several negative comments from the training pilots. Sage testified that Rougas was terminated by PHI for failure to maintain PHI standards as an S-76 First Officer. Sage further testified that during Rougas's performance meeting, several days prior to his termination, Rougas did not relay that he was having difficulties performing his duties as a helicopter pilot due to injuries sustained in an automobile accident, nor was there any mention of these alleged injuries on Rougas's various pilot training progress reports.
In finding that Rougas failed to prove by a preponderance of the evidence that he suffered injuries as a result of the July 1, 2012 accident, the jury weighed the foregoing competing testimony and evidence. While Rougas contends that the testimony of his treating physician should be given greater weight than a physician who only examined him once, this court has previously held that the trier of fact ultimately retains the discretion to weigh and consider such competing testimony, despite any applicable presumptions. Guillmette v. Capital Area Human Services District, 2016-1526 (La. App. 1st Cir. 6/2/17) 2017 WL 2399021 at *5 (unpublished opinion), citing Dawson v. Terrebone General Medical Center, 2010-2130 (La. App. 1st Cir. 5/19/11), 69 So. 3d 622, 627. Additionally, in the instant case, not only did USAA offer the conflicting testimony of its retained medical expert, Dr. Liecthy, but USAA also offered the conflicting medical testimony of Rougas's own flight physician, Dr. Laguna, who, like a treating physician, saw Rougas every six months both before and after the automobile accident.
Additionally, even to the extent that Dr. Liechty did comment that the trauma from the July 1, 2012 automobile accident minimally contributed to Rougas's complaints, the jury was not bound to accept this testimony of an expert. Rather, expert testimony is to be weighed the same as any other evidence, meaning that the jury herein was entitled to accept or reject, in whole or in part, the expert's opinion. Richardson, 181 So. 3d at 67-68. Accordingly, we are unable to say that this brief statement by Dr. Liechty warrants a finding that the jury manifestly erred in determining that Rougas did not suffer injuries as a result of the July 1, 2012 accident.
After a thorough review of the voluminous testimony and evidence of record herein, including the conflicting testimony, and given our standard of review, we are unable to find that the trial court erred in rendering its judgment in conformity with the jury's finding that Rougas failed to demonstrate by a preponderance of the evidence that he suffered injuries as a result of the July 1, 2012 automobile accident.
Accordingly, we find no merit to these assignments of error,
CONCLUSION
Based on the above and foregoing reasons, the July 22, 2016 judgment of the trial court, dismissing John Rougas's claims with prejudice, is hereby affirmed. Costs of this appeal are assessed to plaintiff/appellant, John Rougas,
AFFIRMED.