Opinion
2012 CA 0645
02-13-2013
RUSSELL COLE v. ALLSTAR CHEVROLET, INC. D/B/A ALLSTAR AUTOMOTIVE GROUP AND EMPLOYERS INSURANCE OF WAUSAU
Michael R. Sistrunk Matthew J. Garver Lou Anne Gwartney Metairie, Louisiana Counsel for Plaintiff-Appellee Russell Cole Daniel R. Atkinson, Jr. Baton Rouge, Louisiana Counsel for Defendants-Appellants All Star Chevrolet, Inc. d/b/a All Star Automotive Group and Employers Insurance of Wausau
NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
NUMBER 555,931, SEC. 27, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA
HONORABLE TODD HERNANDEZ, JUDGE
Michael R. Sistrunk
Matthew J. Garver
Lou Anne Gwartney
Metairie, Louisiana
Counsel for Plaintiff-Appellee
Russell Cole
Daniel R. Atkinson, Jr.
Baton Rouge, Louisiana
Counsel for Defendants-Appellants
All Star Chevrolet, Inc. d/b/a
All Star Automotive Group and
Employers Insurance of Wausau
BEFORE: KUHN, PETTIGREW, AND McDONALD, JJ.
Disposition: AFFIRMED.
KUHN, J.
Defendants-appellants, All Star Chevrolet, Inc. d/b/a All Star Automotive Group (All Star) and its insurer, Employers Insurance of Wausau, appeal the trial court's judgment rendered in conformity with a jury's verdict, finding All Star liable to plaintiff-appellant, Russell Cole, and awarding him damages for the personal injuries he sustained in a single-vehicle accident. We affirm.
On June 3, 2006, Cole took his 1996 Chevrolet Silverado 1500 pick-up truck to All Star for rotation and balance of its tires. On June 8, while driving approximately 45 MPH on Highway 190 between Walker and Denham Springs, Cole heard a loud noise, felt his axle fall to the ground, and saw a tire pass him as he was juggled around in the truck. Cole recalled he had difficulty controlling his truck as it skidded to the right, near a ditch. He got out of the vehicle and observed the damage to the rear, left side of the truck, where the wheel had come off. He retrieved lug nuts from the vicinity, placing them in the bed of the truck, and then called All Star, who advised him of a towing service to call to have the truck towed to the All Star facility. All Star kept the vehicle between four and six weeks, replacing the axle, studs, brake shoes, drum, and a wheel cylinder, performing body work, and painting the left back side of the truck. Cole was not charged for any of the repair work.
On June 26, 2006, Cole sought medical attention at the emergency room at Ochsner Medical Center, complaining of pain in his neck and back that commenced the morning after the accident. In conformity with the emergency room physician's instructions, Cole sought additional medical treatment from his orthopedic surgeon, Dr. Jorge Isaza, who had already been treating Cole for low back injuries.
On June 5, 2007, Cole filed this lawsuit against All Star and its insurer. After a three-day trial, commencing on June 1, 2011, the jury rendered a verdict concluding that All Star's negligence was the cause of the June 8, 2006 accident and awarded Cole damages totaling $135,000.00. Alternative motions for judgment notwithstanding the verdict, new trial, and remittitur filed by All Star were denied. This appeal followed. Liability:
All Star initially disputes the jury's finding of liability. While conceding the cause of the accident was that the left rear wheel fell off Cole's truck, All Star points out that the record is devoid of any direct evidence that the All Star mechanic improperly applied torque to the lug nuts of Cole's left rear wheel when he balanced and rotated the tires on June 3, 2006.
In an action to recover damages for injuries allegedly caused by another's negligence, the plaintiff has the burden of proving negligence on the part of the defendant by a preponderance of the evidence. Most negligence cases are resolved by employing the duty-risk analysis, which entails five separate elements: (1) whether the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) whether the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) whether the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) whether the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of liability or scope of protection element); and (5) whether the plaintiff was damaged (the damages element). Broussard v. Voorhies , 2006-2306 (La. App. 1st Cir. 9/19/07), 970 So.2d 1038, 1042-43, writ denied, 2007-2052 (La. 12/14/07), 970 So.2d 535.
The plaintiff in a negligence case may meet his burden of proof by presenting both direct and circumstantial evidence. Res ipsa loquitur is not a substantive legal tenet, but rather an evidentiary doctrine under which a tort claim may be proved by circumstantial evidence. The doctrine of res ipsa loquitur permits the inference of negligence from the surrounding circumstances, and merely assists the plaintiff in presenting a prima facie case of negligence when direct evidence is not available. Because application of res ipsa loquitur is an exception to the general rule that negligence is not to be presumed, it should be sparingly applied. Generally, it may be applied when three requirements are met: (1) the circumstances surrounding the accident are so unusual that, in the absence of other pertinent evidence, there is an inference of negligence on the part of the defendant; (2) the defendant had exclusive control over the thing causing the injury; and (3) the circumstances are such that the only reasonable and fair conclusion is that the accident was due to a breach of duty on the defendant's part. Id. , 970 So.2d at 1043.
In order to utilize the doctrine of res ipsa loquitur, the plaintiff must establish a foundation of facts on which the doctrine may be applied. The plaintiff does not have to eliminate all other possible causes or inferences, but must present evidence that indicates at least a probability the injury would not have occurred without negligence. The facts established by the plaintiff must also reasonably permit the jury to discount other possible causes and to conclude it was more likely than not that the defendant's negligence caused the injury. The inference of negligence points to the defendant when the conduct of others is eliminated as a more probable cause. The plaintiff must show not only that an accident occurred or that the accident was caused by the negligence of someone, but also that the circumstances warrant an inference of defendant's negligence. Bradbury v. Thomas , 98-1678 (La. App. 1st Cir. 9/24/99), 757 So.2d 666, 671-72.
Use of the doctrine of res ipsa loquitur in a negligence case, as in any case involving circumstantial evidence, does not relieve the plaintiff of the ultimate burden of proving by a preponderance of the evidence all of the elements necessary for recovery. When all the evidence is in, the question for the jury is whether the preponderance of the evidence is with the plaintiff. Id. , 757 So.2d at 672.
Without challenging the propriety of the trial court's instructions to the jury, All Star urges that to the extent the jury applied the doctrine of res ipsa loquitur, it erred. And focusing on the undisputed fact that between June 3rd and 8th, Cole's truck had been driven 192 miles, All Star urges that no reasonable factual basis exists to support a finding that any deficiency in the All Star mechanic's performance of the tire rotation was the cause-in-fact of the accident.
Cole testified that after the accident, he immediately called All Star, who was the last one that serviced his truck. He stated that no other work had been done on the vehicle by himself or anyone else after All Star's service and before the accident. Cole denied that he manipulated the tires in any manner.
Kevin Leonard, the automotive technician for All Star who rotated and balanced the tires on Cole's vehicle on June 3, 2006, admitted that he did not remember whether he used the requisite torque stick to ensure the proper amount of torque was applied to the lug nuts when attached to the studs of the left rear wheel of Cole's truck. Leonard did not recall if he was distracted by a phone call or other event while he was applying torque to the lug nuts although he believed that he would not have been. Leonard conceded that he was the last documented person to have touched the left rear wheel of Cole's truck and that if torque had been properly applied to the wheel, it would not have fallen off.
Cole's accident reconstruction expert, Michael Gillen, opined that, based on his investigation, the only plausible explanation for the wheel having come off the truck was because the lug nuts were not tightened sufficiently. He stated that the application of less than the proper amount of torque to the left rear wheel of Cole's truck was consistent with the type of maintenance performed by All Star on June 3, 2006. In his expert opinion, more likely than not, All Star's failure to properly apply torque to the lug nuts was the ultimate cause of the single-car accident on June 8, 2006.
All Star's expert in accident reconstruction, A.J. McPhate, opined that the lug nuts were not tight just prior to the time they came off the vehicle. He stated that it was not possible for the lug nuts to have been loose for the 192 miles the vehicle had been driven between June 3rd and 8th. He told the jury that if the mechanic used the proper torque stick to apply torque to three of the wheels, it indicated that he applied the proper amount of torque to the left rear wheel as well. But McPhate agreed that he did not know for a fact that the mechanic applied the proper amount of torque to the left rear wheel. And the expert admitted that it was plausible that Cole could have driven 192 miles with the wheel still clamped due to a minimal amount of torque having been applied to the lug nuts on the left rear wheel and that "the dings and arrows of driving" could have slowly caused that clamp to break away. He conceded that clamp, which essentially is the seal created when the lug nuts are tightened to the studs of the wheel, could have broken at 191 miles or more, and once broken would have caused the wheel to come off the vehicle.
Based on this evidence, Cole offered a foundation of facts on which the jury could have applied the doctrine res ipsa loquitur. Thus, to the extent that the jury applied the doctrine of res ipsa loquitur, we find no error.
Once the doctrine of res ipsa loquitur has been applied in a given case, the burden then shifts to the defendant to show an absence of negligence on his part. Culver v. Ochsner Found. Hosp. , 474 So.2d 984, 988 (La. App. 5th Cir.), writ denied, 477 So.2d 705 (La. 1985); accord Orgeron v. Louisiana Coca-Cola Bottling Co., Inc. , 411 So.2d 539, 543 (La. App. 1st Cir. 1982).
Although All Star suggested to the jury that Cole had either done something to the brake system or the left rear tire, or that another person may have tampered with the lug nuts on that wheel, it offered no evidence to support these contentions. Mindful that Cole expressly denied that anyone had worked on the vehicle -- or that he had done anything to the tires -- between June 3rd and the accident, and that All Star did not challenge the instruction to the jury of the application of the doctrine of res ipsa loquitur, the jury did not err in concluding that All Star failed to prove an absence of negligence in having caused the June 8, 2006 accident. As such, we find no manifest error in the trial court's determination that All Star was liable for Cole's damages. See Bellanger v. Webre , 2010-0720 (La. App. 1st Cir. 5/6/11), 65 So.3d 201, 207, writ denied, 2011-1171 (La. 9/16/11), 69 So.3d 1149 (cause-in-fact determination is a factual one that is governed by the manifest error standard of review); see also Stobart v. State , 617 So.2d 880, 882 (La. 1993) (the trier of fact's factual findings may not be set aside in the absence of "manifest error" or unless "clearly wrong.") Medical Causation:
McPhate viewed photos of the truck, which were not contained in the appellate record, and identified chrome-plated, acorn-style lug nuts that he indicated had to be special ordered. Because All Star's repair invoice did not include these lug nuts, All Star contended that they had been supplied by Cole and may have been the cause of the left rear wheel falling off on June 8, 2006. Because All Star offered only argument and no actual evidence explaining how the acorn-style lug nuts could have caused the accident, there is no error in the jury's rejection of this contention.
--------
All Star maintains that the record fails to establish that the injuries from which Cole suffered were medically caused by the accident, urging that the jury was presented no evidence of a mechanism of injury consistent with the diagnoses Cole's physicians made.
The test for determining the causal relationship between the tortious conduct and subsequent injuries is whether the plaintiff proved through medical testimony that it was more probable than not that subsequent injuries were caused by the accident. Lasha v. Olin Corp. , 625 So.2d 1002, 1005 (La. 1993).
Cole testified that the left side of his face hit the driver's side window when he was juggled around in the truck after the wheel fell off as he attempted to safely stop his vehicle. Dr. Gray Wesley Barrow, a board-certified physical medication and rehabilitation physician admitted as an expert, indicated that Cole had sustained a whiplash-type injury in the June 8, 2006 motor vehicle accident that more probably than not caused disc bulges at multiple levels of his neck. Dr. Barrow also testified that more probably than not, Cole sustained an aggravation of his pre-existing multiple level lumbar disc herniations. Dr. Isaza's testimony was in conformity to that of Dr. Barrow. Specifically, Dr. Isaza testified that Cole told him that he felt his head and neck jerk back and forth. The undisputed evidence was that prior to the June 8, 2006 motor vehicle accident, Cole had no history of injury to his neck but that he had sustained a significant lumbar injury in a work-related accident in 2001. With this evidence, we conclude the jury was not manifestly erroneous in finding a causal relationship between the June 8, 2006 accident and Cole's subsequent injuries. Stobart , 617 So.2d at 882.
All Star nevertheless avers that Cole's testimony was not credible and urges that the testimony of Dr. James Runnels, who examined Cole on June 26, 2006 at the emergency room at Ochsner Medical Center, should be believed over that of Drs. Barrow and Isaza whose diagnoses were based on the history that Cole provided to them. Additionally, All Star urges that Cole's testimony is not credible on his description of the mechanism of injury because both experts agreed that when the vehicle lost the axle, the driver came to a controlled stop.
A trier of fact is free to believe in whole or part the testimony of any witness. See Scoggins v. Frederick , 98-1814 (La. App. 1st Cir. 9/24/99), 744 So.2d 676, 687, writ denied, 99-3557 (La. 3/17/00), 756 So.2d 1141. The fact finder's reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Unless documents or objective evidence so contradict a witness's story, or that the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder must discredit it, this court may not reverse. See Stobart , 617 So.2d at 882-83.
That the jury chose to credit Cole's testimony was uniquely its province to do. And All Star's contention that Cole's description of having had difficulty controlling his vehicle is not objectively discounted because both the experts in accident reconstruction agreed that once the axle dropped, the vehicle came to a controlled stop. The jury certainly could have inferred that the motion created by the dropping of the axle onto the ground as the vehicle was in a forward motion could have created sufficient energy to cause Cole's body to move in a manner consistent with his injuries. Thus, the diagnoses made by Drs. Barrow and Isaza based on Cole's recount of the mechanism of injury and history of pain are not manifestly erroneous. As such, the jury's finding of medical causation is supported by the evidence and will not be disturbed on review. Damages:
All Star levies numerous challenges to the jury's awards of damages. First, All Star asserts the quantum of the jury's award of past medical expenses in the amount of $25,000.00 was erroneous.
A plaintiff may ordinarily recover reasonable medical expenses that he incurs as a result of an injury. Past medical expenses are special damages that are capable of being determined with reasonable mathematical certainty and, as such, must be proven by the person seeking them by a preponderance of the evidence. When claims for the accrued medical expenses are supported by medical bills, these expenses should be awarded unless there is contradictory evidence or reasonable suspicion that the bills are unrelated to the accident. A jury manifestly errs if the victim has proven his medical expenses by a preponderance of the evidence, and it fails to award the full amount of the medical expenses proven. The tortfeasor is required to pay for medical treatment of the victim, even over-treatment or unnecessary treatment, unless such treatment was incurred by the victim in bad faith. In a situation where a pre-existing condition is aggravated in an accident, the tortfeasor is required to compensate the victim for the full extent of the aggravation injury. Mack v. Wiley , 2007-2344 (La. App. 1st Cir. 5/2/08), 991 So.2d 479, 489, writ denied, 2008-1181 (La. 9/19/08), 992 So.2d 932.
Although All Star disputes the totals contained in a separate exhibit from the itemized statements, the jury did not award Cole 100% of the amount of past medical expenses he claimed. We are not capable of evaluating the itemized statements and ascertaining the jury's thought process in dismissing and discounting items totaling $7,008.10. Moreover, the record contains no showing that Cole was in bad faith when he underwent medical treatment.
Additionally, All Star's contention that several medical providers were not referenced in the testimony and did not testify as to the treatment each provided to Cole is without merit. While the record shows that All Star reserved its right to challenge the causation of the injuries, All Star otherwise stipulated to the admission of the medical bills. Therefore, its assertion concerning the authenticity and certification of those bills is not well founded.
Our review of the itemized bills demonstrates to us - as it must have to the jury -- the bills were all incurred for the treatment of the neck and back injuries Cole sustained in the June 8, 2006 accident. The award of $25,000.00 for past medical expenses totaling in excess of $30,000.00 is not manifestly erroneous.
All Star next challenges the jury's award of $20,000.00 for future medical expenses. The gist of All Star's assertion is that Dr. Barrow's testimony indicated only the possibility that Cole might require a rhizotomy, a procedure that uses heat to destroy the neural nerve.
Under Louisiana law, a tort victim may recover future (post-trial) medical expenses caused by tortious conduct. Menard v. Lafayette Ins. Co. , 2009-1869 (La. 3/16/10), 31 So.3d 996, 1006 (citing Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law § 7.02[1], 7-5 (Michie 2009)). The victim must, however, establish that future medical expenses will more probably than not be incurred. The proper standard for determining whether a plaintiff is entitled to future medical expenses is proof by a preponderance of the evidence that the future medical expense will be medically necessary. Menard , 31 So.3d at 1006. On review, we examine the evidence of record to determine if the jury's award for future medical expenses was contrary to the evidence or constitutes an abuse of discretion. See Menard , 31 So.3d at 1008.
All Star has correctly pointed out that Dr. Barrow's last contact with Cole left the physician uncertain whether the patient was a good candidate for a rhizotomy. Explaining that to be a good candidate, a patient should receive about 70% relief from a medial branch block (a procedure performed prior to a rhizotomy), Dr. Barrow indicated that the feedback from Cole was somewhat equivocal. Dr. Barrow planned to discuss in detail with Cole his response to the medial branch block and then further evaluate the likelihood of undertaking a rhizotomy of Cole's neck. According to Dr. Barrow, Cole was also going to undertake a medial branch block of his low back to see whether he was a good candidate for a rhizotomy of his lumbar spine. Dr. Barrow testified that a medial branch block was approximately $2,500.00 and a rhizotomy was about $5,000.00, regardless of whether performed in the neck or low back. Over the next 30 years, Dr. Barrow indicated, Cole would need to have a rhizotomy performed ten times in his neck.
In his direct examination, Cole testified that Dr. Barrow had advised him that a rhizotomy would provide him with longer-term pain relief than medication. Cole stated that he wanted to undertake the procedure so that he could discontinue use of so much medication for pain relief.
Based on our review, the evidence supports the jury's award of future medical expenses. And the quantum of $20,000.00 is not an abuse of discretion, especially where Cole presented evidence of more than $52,500.00 in possible future medical expenses.
All Star next claims that the jury abused its discretion in awarding Cole general damages of $40,000.00 and loss of enjoyment of life damages of $30,000.00 and asks that this court reverse these awards or reduce them to the highest amount reasonably supported by the record.
The record clearly supports these awards. Cole has been in constant pain in both his neck and low back for the five years since the accident. Medication, physical therapy, and epidural steroid injections have provided him with only transient relief. Both he and his wife testified as to the diminution in the quality of their lives, both in terms of lifestyle and sex, as a result of his injuries. Thus, there is no abuse of discretion. See Youn v. Maritime Overseas Corp. , 623 So.2d 1257, 1261 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994); see White v. Longanecker , 93-1122 (La. App. 1st Cir. 5/23/94), 637 So.2d 1213, 1215, writ denied, 94-1704 (La. 10/7/94), 644 So.2d 640.
Lastly, without claiming that the quantum of the jury's award of $20,000.00 for disability is erroneous, All Star maintains that the record lacks an evidentiary basis for any award of disability whatsoever. Thus, All Star urges that on review we reverse the award in its entirety.
For purposes of a general tort claim, disability damages are recognized as those general damages constituting any permanent disability or impairment that is secondary to the injuries sustained in the accident. Cotton v. State Farm Mut. Auto. Ins. Co. , 2010-1609 (La. App. 1st Cir. 5/6/11), 65 So.3d 213, 222, writ denied, 2011-1084 (La. 9/2/11), 68 So.3d 522. Disability is defined as "the inability to perform some function," or alternatively, "[a]n objectively measurable condition of impairment, physical or mental." Impairment is simply defined as "[t]he fact or state of being damaged, weakened or diminished." Bryan A. Garner, Black's Law Dictionary (9th ed. 2009).
A functional capacity evaluation (FCE) of Cole administered by Pamela Johnson, an occupational therapist, at Dr. Isaza's request on September 6, 2006 (about two months after the accident) indicated that Cole was able to work at a sedentary physical demand level within a normal work day. But Johnson indicated the level was not at a productive rate such that Cole was employable. Johnson stated that an earlier administered FCE had indicated Cole was employable in a light duty status. Although in her testimony Johnson questioned whether Cole was self-limiting in his performance of activities, she agreed that a person could choose to self-limit in anticipation of pain and indicated that it was more likely that a person who has suffered chronic pain would choose to self-limit. Thus, the record establishes that Cole's employability had diminished subsequent to the June 8, 2006 accident.
Additionally, the record shows that while Cole had a low back injury before the accident, the aggravation coupled with the new neck injury clearly limited Cole's ability to function. Both he and his wife stated that he had difficulty sitting or standing for any extended period of time. And ordinary activities, such as riding in a vehicle or laying supine, were difficult for Cole. Although the record does not contain a disability rating, it is clear the jury found the reduction in Cole's employability, coupled with his loss of ordinary function, to be a significant disability. Because the record contains an evidentiary basis to support the jury's award of damages for disability, on review, we cannot reverse the trier of fact's determination even if we, sitting on the jury, may have chosen not to make such an award.
DECREE
For these reasons, the trial court's judgment, awarding plaintiff-appellee, Russell Cole, total damages of $135,000.00 in conformity with the jury's verdict, is affirmed. Appeal costs are assessed against defendants-appellants, All Star Chevrolet, Inc. d/b/a All Star Automotive Group and Employers Insurance of Wausau.
AFFIRMED.