Opinion
2013 CA 1214
03-24-2014
TAKI E. AVERY v. GRAMERCY INSURANCE COMPANY AND NORMAN C. MATTHEWS
Spencer Calahan Benjamin T. Lowe Baton Rouge, Louisiana Counsel for Plaintiff-Appellant Taki E. Avery Chase Tettleton Counsel for Defendants-Appellees Gramercy Insurance Company Norman C. Matthews
NOT DESIGNATED FOR PUBLICATION
ON APPFAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
NUMBER C614104, SEC. 24, PARISH OF EAST BATON ROUGE
STALE OF LOUISIANA
HONORABLE MICHAEL CALD WELL, JUDGE
Spencer Calahan
Benjamin T. Lowe
Baton Rouge, Louisiana
Counsel for Plaintiff-Appellant
Taki E. Avery
Chase Tettleton Counsel for Defendants-Appellees
Gramercy Insurance Company
Norman C. Matthews
J. Theriot Concurs
BEFORE: KUHN, HIGGINBOTHAM, AND THERIOT, JJ.
Disposition: AFFIRMED.
KUHN, J.,
Plaintiff-appellant, Taki E. Avery, appeal, a district court judgment granting defendants' motion for directed verdict, contending that the trial court erred in finding no causation due to lack of expert medical testimony and in failing to apply the Housley presumption. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 26, 2012, plaintiff, Taki E. Avery, tiled suit against defendants, Gorman C. Matthews and his insurer, Gramercy Insurance Company, seeking damages arising out of a February 15, 2012 motor vehicle accident. Plaintiff was at an intersection and was "T-boned" on the drivers side of her vehicle by Matthews' vehicle.
A bench trial was held on May 6, 2013, and at the close of plaintiff's evidence, defendants moved, for a directed verdict, which the trial judge granted. On May 24, 2013, the judge signed a judgment dismissing plaintiff's suit. Plaintiff filed a motion for a new trial which was denied. From the judgment dismissing her suit, plaintiff appeals. Gramercy previously tendered its policy limits of $15,000.00 along with judicial interest and court costs into the registry of the court. Plaintiff withdrew the money in the court registry, which totaled $15,898.16.
On May 6, 2013, Citadel Insurance Company was substituted as a defendant for Gramercy, which was placed in receivership; Citadel assumed liability for all Gramercy policies and claims.
Plaintiff's medical expenses totaled $15,530.00.
DISCUSSION
Plaintiff alleges in several assignments of error that the trial court erred in granting the directed verdict on the basis that she offered no medical testimony relating her injuries to the accident because plaintiff claims that the medical records with her testimony were sufficient. She also claims that medical testimony was not required because causation could be determined through common knowledge since her injuries were soft tissue injuries. Plaintiff claimed that the trial court erred in failing to appiy the Housley v. Cerise presumption because her injuries from a prior accident fully resolved before the accident at issue. 579 So.2d 973, 980 (La. 1991). Plaintiff also contends that the trial court should have awarded her damages for pain and suffering and mental anguish. Defendants contend that, based on plaintiff's earlier lower back injury and treatment from a previous motor vehicle accident and a congenital neck deformity identified by the MRI, medical testimony of some kind was necessary to prove causation.
In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party may move for a dismissal of the action on the ground that upon the facts and law, the plaintiff has shown no right to relief. La. C.C.P. art. 1672(B). Lhe appropriate standard for the trial court's determination of a motion for .involuntary dismissal is whether the plaintiff has presented sufficient, evidence in his case-in-chief to establish a claim by a preponderance of the evidence. Foster v. Tinnea, 96-2718 (La. App. 1st Cir. 12/29/97), 705 So.2d 782, 784. Proof by a preponderance of the evidence simply means that when taking the evidence as a whole, the fact or cause sought to be proved is more probable than not. Politz v. Recreation and Park Commission for Parish of East Baton Rouge, 619 So.2d 1089, 1093 (La. App. 1st Cir.), writ denied, 627 So.2d 653 (La. 1993).
In reviewing a trial court's ruling on a motion for involuntary dismissal, the appellate court should not reverse the trial court's ruling in the absence of manifest error. Broussard v. Voorhies, 2006-2306, p. 3 (La. App. 1st Cir. 9/19/07), 970 So.2d 1038, 1041, writ denied, 2007-2052 (La. 12/14/07), 970 So.2d 535, citing Gauthier v. City of New Iberia, 2006-341, p. 3 (La. App. 3d Cir. 9/27/06), 940 So.2d 915, 918. Under the manifest error standard, a court of appeal may not set aside a trial court's or a jury's findings of fact in the absence of "manifest error" or unless it is "clearly wrong." Resell v. ESCO, 549 So.2d 840, 844 (La. 1989). The supreme court has announced a tow-part test for the reversal of a factfinder's determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous), Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993). Thus, the issue to be resolved by a reviewing court is not whether the trier-of-fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Stobart, 617 So.2d at 882. Where factual findings are based on determinations regarding the credibility of witnesses, the trier-of-fact's findings demand great deference. Boudreaux v. Jeff, 2003-1932, p. 9 (La. App. 1st Cir. 9/17/04), 884 So.2d 665, 671. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony, Rosett, 549 So.2d at 844.
Thus, in deciding whether the trial court erred in granting the motion for directed verdict, we must inquire whether plaintiff presented sufficient evidence in her case-in-chief to establish her claim by a preponderance of the evidence. This Court must determine whether the evidence as a whole shows that it is more probable than not that the accident caused her lower back injuries. The trial court's ruling may only be reversed if the record shows a reasonable factual basis does hot exist for the trial court's finding that causation was not proven and that this finding is clearly wrong or manifestly erroneous.
At the trial, plaintiff presented her testimony, Matthews1 testimony as to the circumstances of the accident, and her medical records. According to plaintiff, she had pain about two days after the accident in her lower back and neck area. At the time of the accident, plaintiff was working twelve-hour shifts as an emergency medical technician at Our Lady of the Lake Hospital so she did not go to the doctor until April 2012, despite her pain. Before seeking medical treatment, she took pain medicine but the pain interfered with her lifting patients properly at work. She commented that, before the accident, she did not have back pain. Plaintiff testified her pain stopped about six months before trial (December 2012) after her treatment with chiropractors Dr. Michael Goff and Dr, Shari Lewis and injections by Dr. Peter A. Zimmerman.
Plaintiff's medical records show she was treated at Louisiana Health and Injury Center by Drs. Goff and Lewis from April 24, 2012 through August 15, 2012 and the bills of July 9, 2012 September 20, 2012 list the diagnoses for "Accident on 02/15/12" as "Lumbar Sprain/Strain," "Lumbar IVD Displacement," "Comp of lumbo-sacral plexus," "Sciatica," "Lumbalgia," "Cervical Sprain/Strain," "Segmental Dysfunction-cervical," and "Cervicalgia." On June 11, 2012, she underwent an MRI, which showed bilateral neural foraminal stenosis as a consequence of diffuse bulge of the annulus fibrosis at L4-15 and L5-S1; as to the cervical spine, it showed a C7-T1 Klippel-Feil deformity with congenital anterior fusion and vestigial intervertebral disc. The MRI of the thoracic spine was normal. Plaintiff saw Dr. Zimmerman at Louisiana Medical Clinic on July 5, 2012. His medical report states that, his impression was chronic low back pain, lumbar spondylosis, and lumbar internal disc disruption. He recommended bilateral L4/5 and L5/S1 facet joint injections. Plaintiff received lumbar intra-articular facet joint injections from Dr. David J. Wyatt on August 8. 2012.
When initially asked by her attorney about an earlier August 2011 motor vehicle accident she was in, plaintiff denied suffering any back injury, stating:
Q. Were you injured in that accident?
A. It was minor injuries, no.
Q. What was that?
A. Minor injuries.
Q. Did you treat for those injuries?
A. Mm-hmm.
Q. Did you make a full - when you said minor injuries, where did you injure yourself?
A. It was my left leg and my upper part of my body.
Q, Any back injuries?
A. No.
Defendants introduced medical records from Community Health and Rehabilitation Center where plaintiff received treatment from August 3, 2011 through October 6, 2011, Defense counsel asked plaintiff about the August 2011 accident and her treatment at Community Health. She admitted she injured her lower back in that accident and that she had sought medical attention two days after the accident. She acknowledged mat, in those medical records, her chief medical complaint was lower back pain. She had signed in at least twice at the Center rating her lower back pain as an 8 out of 10.
As to the accident at issue, on the questionnaire plaintiff filled out at Dr. Goff's office dated April 18, 2012, when asked if she had been treated by a physician for any health conditions in the past year, she marked the "NO" box. She explained to defense counsel that, because she had seen a chiropractor (whom she apparently did not consider to be a physician) for the earlier accident she did not believe she should answer affirmatively. The form also asked the patient to "LIST OTHER DOCTORS SEEN FOR THIS CONDITION", for which she described her symptoms as "back pain and neck".in the blank above, and she wrote "n/a." Plaintiff claimed that she put the earlier accident "on a paper" and she "told them about it." The clinical assessment by Dr. Zimmerman with Louisiana Medical Clinic on July 5, 2012 states that plaintiff was also involved in a motor vehicle accident in 2011, that she sustained neck of back injuries, and "[b]y the time of her February 2012 incident her prior symptoms had fully re solved."
Under questioning by defense counsel, plaintiff admitted, "I mean, 1 hurt my back then, and it was hurting then, prior to this accident as well."
On redirect examination, she testified that she did injure her back in the earlier accident and:she suffered from, lower back pain. She stated she made a complete recovery before this accident and, on the date of the accident, she was not experiencing any back pain.
In rendering judgment on the directed verdict, the trial judge gave oral reasons, beginning, "I have read every page1 [of the medical evidence plaintiff submitted], some in great detail, trying to Find any statement by any doctor that, there was causation." He then discussed the Housley presumption arid said it applied where the plaintiff was in good health before the accident, and then, beginning with the accident, the symptoms and complaints manifest themselves continuously thereafter. He also said that the medical testimony must indicate there was a reasonable possibility that the complaints were caused by the accident. According to the judge, there was no indication in the records by any health care providers that the diagnoses were causally related to the accident. He noted that the medical records from Louisiana Health were not signed or initialed by the chiropractors except for the excuse to miss work and an orthopedic evaluation referral.
The judge stated that Baton Rouge Imaging's records did not mention causation in the MRI findings, which he believed indicated congenital and degenerative problems. The judge noted that Dr. Wyatt's report did not mention causation other than plaintiff's history, which he said was what plaintiff would have told the doctor. As to the Louisiana Medical Clinic clinical assessment done by Dr. Zimmerman, the judge noted that the history states that plaintiff was in a car accident, her first onset of low back pain was two days post-accident, that she was involved in a motor vehicle accident in 2011, that she injured her neck or back in that accident, and that these symptoms had fully resolved by the time of the 2012 accident. The judge again commented that the patient history is what the patient tells the doctor and not a determination by the doctor that the complaints are related to the accident. The judge opined that Dr. Zimmerman's finding of chronic low back pain did not necessarily mean that the back pain arose from the accident because chronic means "it's been around for some time. So whether he meant chronic of six months or whether he meant chronic of a year and half is not explained." The judge stated that lumbar spondylosis and lumbar internal disk disruption "are not necessarily traumatically induced, but can result from congenital and degenerative changes in conditions." He concluded, "So as I said, I have reviewed every record, every page, every entry in these medical records, looking for something where some doctor said these injuries were caused by this accident. And unfortunately for Ms. Avery, J cannot find anything."
Plaintiff contends that because her medical records and bills document the accident, her injuries, and treatment, and her testimony related her injuries to the accident, the court erred in granting defendants' motion because the testimony was uncontroverted. Plaintiff relies on the following statement from Jackson v. Capitol City Family Health Center, 2004-2671 p. 4 (La. App. 1st Cir. 12/22/05), 928 So.2d 129, 131:
When considering a motion for involuntary dismissal, a plaintiff is entitled to no special inferences in his favor. However, absent circumstances in the record casting suspicion on the reliability of the testimony and sound reasons for its rejection, uncontroverted evidence should be taken as true to establish a fact for which it is offered.
(Citation omitted.)
Plaintiff's testimony about a lower back injury she suffered in an automobile accident less than seven months before the collision at issue was contradictory and inconsistent. This, coupled with her initial denial of the earlier back injury followed by an admission when faced with irrefutable evidence, cast doubt on the reliability of her lay testimony as to causation. Although defendants did not introduce evidence other than the medical records for plaintiff's prior accident, such that plaintiff argues her evidence is uncontroverted, the inconsistencies in plaintiff's own evidence mean it cannot be taken as true to establish the facts for which it was offered.
Plaintiff relies on Laska v. Olin Corp. 625 So.2d 1002 (La. 1993), to support her contention that she did not need expert medical testimony to support causation, in Lasha, the Supreme Court noted that while expert medical evidence is sometimes essential, as a general rule, whether defendant's fault is a cause in fact of plaintiff's personal injury or damages may be proved by other direct or circumstantial evidence: 625 So.2d at 1005, On medical matters within common knowledge, no expert testimony is required to determine causation. Laska, 625 So.2d at 1005. Plaintiff also cites Cannet v. Franklin Pest Control Co., 08-56. p. 9 (La. App. 5th Cir. 4/29/08). 985 So.2d 270, 276, to support her contention that she did not need expert medical testimony, however; in Cannet , the court noted, "There is no evidence that there was any intervening accident or other condition that would cast doubt on plaintiff's claims that her injuries were caused by the accident." Plaintiff refers to Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 664 (La. 1990) (on rehearing) for its holding-that plaintiff's burden or proof on causation ina negligence action has been met when the entirety of the evidence, both direct and circumstantial, shows that a fact or causation sought to be proved is more probable than hot.
In this case, however, the entirety of the evidence in this case does not establish that the accident more probably than not caused plaintiff's injuries. As discussed above, because plaintiff sustained two injuries to her lower back within a short period of time and because her testimony about the earlier injury was inconsistent, expert testimony is necessary in this case to prove that; her injuries were causally related to the accident at issue.
Plaintiff attempts to distinguish Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615 (La. 2/20/95), 650 So.2d 757, on the basis that expert medical testimony was required in that case because the plaintiff sustained more serious injuries whereas the instant case simply involves soft tissue injuries. Yet the supreme court in Maranto did not base the need for expert medical testimony on the severity of the injuries plaintiff sustained but upon whether expert medical testimony was needed to prove that it was more probable than not that the injuries were caused by the accident.
We find no merit in plaintiff's contention that she was entitled to a presumption of medical causation under Housley v. Cerise, 579 So.2d 973, 980 (La. 1991). In Housley , 579 So.2d at 980, the Louisiana Supreme Court established three essential requirements a plaintiff must establish before he can benefit from a presumption of causation: (1) good health prior to the accident at issue; (2) symptoms of the alleged injury appear and continuously manifest themselves subsequent to the accident at issue; and (3) medical evidence demonstrates a reasonable possibility of causation exists between the accident and the injury claimed. In this case, the trial judge found that the Housley presumption did not apply because there was no medical testimony indicating there was a reasonable possibility that plaintiff's complaints were due to the accident. The application of the Housley presumption is a factual issue which is subject to the manifest error standard of review. Detraz v. Lee , 2005-1263, p.9 (La. 1/17/07), 950 So.2d 557, 563
Plaintiff contends that her testimony was uncontroverted that her back injury due to her prior accident in 2011 was fully resolved and she refers to the history in Dr. Zimmerman's report for support. However, the inconsistency in plaintiff's testimony at trial cast doubt on the reliability of her testimony to prove she was in good health before the accident. Moreover, the trial court did not err in finding that the medical evidence did not show that there was a reasonable possibility of causation between the accident and plaintiff's injuries.
Plaintiff assigned as error the trial court's failure to award her general damages for pain and suffering but did not brief this issue. For the reasons discussed above, the trial court did not err in granting the motion for involuntary dismissal such that plaintiff did not recover damages for pain and suffering.
At the end of plaintiff's, brief, she raises an issue which was nor assigned as error and cites no authority for her contention. She contends that. because defendant rendered its policy limits into the registry of the court, it expressly admitted liability for plaintiff's injuries due to the negligence of its insured. Plaintiff's. contention is meritless. Defendants' deposit of the policy limits into the registry of the court did not constitute a blanket admission of liability for all of plaintiff's alleged damages from this accident.
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CONCLUSIONS
Given the prior accident, the inconsistencies in plaintiff's testimony and the lack of expert medical testimony, we are unable to find the judge erred in his decision that causation was not established. Because there is a reasonable factual basis for the judge's conclusions, we cannot say his granting the motion for directed verdict was clearly wrong.
For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal, are assessed to plaintiff, Taki E. Avery.
JUDGMENT AFFIRMED.