Opinion
No. 2010 CA 1662.
March 25, 2011.
APPEALED FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ST. TAMMANY STATE OF LOUISIANA SUIT NUMBER 2001-15543 HONORABLE ALLISON H. PENZATO, PRESIDING.
Timothy R. Richardson, Freeman R. Matthews, New Orleans, LA, Counsel for Plaintiff/Appellant, Carol Dudenhefer.
Jude H. Trahant, Jr., Madisonville, LA, Counsel for Defendant/Appellee, Allstate Insurance Company.
BEFORE: PARRO, GUIDRY, AND HUGHES, JJ.
In this personal injury action, Carol Dudenhefer appeals from a trial court judgment awarding her $8,500 in general damages, $1,669.75 in medical expenses, and expert fees of $500 each for the deposition testimony of Dr. Louis Provenza and Dr. Jorge Sanchez. For the reasons that follow, we affirm.
The judgment also awarded court costs and deposition costs for the deposition transcripts of Dr. Robert Weiss, Jr. and Dr. Louis Provenza, but Dudenhefer does not appeal from these portions of the judgment.
FACTS AND PROCEDURAL HISTORY
On December 1, 2000, Carol Dudenhefer was involved in an automobile accident when a vehicle being driven by Curt Zeller and owned by James Germany executed a left turn in front of her vehicle. Thereafter, Dudenhefer filed a petition for damages, naming Zeller and Germany and their respective insurers as defendants and asserting that as a result of the accident, she suffered injuries to her left hand, arm, shoulder, and neck. Zeller and Germany were subsequently dismissed by a judgment dated February 25, 2005, and at the time of trial, the only defendant remaining was Zeller's insurer, Allstate Insurance Company (Allstate).
Dudenhefer and Allstate entered into a joint stipulation, that Dudenhefer's claims, exclusive of interest and costs, did not exceed $50,000, and they waived their right to a jury trial. They also stipulated that Allstate was liable for damages sustained by Dudenhefer in connection with the December 1, 2000 accident. Following the trial of this matter, the trial court signed a judgment in favor of Dudenhefer, awarding her $8,500 in general damages and $1,669.75 in medical expenses, and awarding $500 each for Dr. Provenza's and Dr. Sanchez's expert fees for their deposition testimony.
Dudenhefer now appeals from the trial court's judgment, asserting that the trial court erred: 1) in finding that the fracture of her 5th metacarpal lasted only nine months and in awarding only $8,500 in general damages; 2) in determining that she had not proven causation for her neck and shoulder injuries; 3) in not awarding all of her medical expenses; and 4) in failing to award the full amount of expert fees for Dr. Provenza and Dr. Sanchez.
DISCUSSION Causation
In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident that caused the injury. The plaintiff must prove causation by a preponderance of the evidence. The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Poland v. State Farm Mutual Automobile Insurance Co., 03-1417, p. 5 (La. App. 1st Cir. 6/25/03), 885 So. 2d 1144, 1147. Whether an accident caused a person's injury is a question of fact, which should not be reversed on appeal absent manifest error. Poland, 03-1417 at p. 5, 885 So. 2d at 1147.
A court of appeal may not set aside a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. The issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one in light of the record reviewed in its entirety. Stobart v. State, Through Department of Transportation and Development, 617 So. 2d 880, 882 (La. 1993). If factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart, 617 So. 2d at 882-883.
When the findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the findings of fact, for only the fact finder is cognizant of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell v. ESCO, 549 So. 2d 840, 844 (La. 1989). Where documents or objective evidence so contradict the witness's story, or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness's story, a reviewing court may well find manifest error even in a finding purportedly based upon a credibility determination. Rosell, 549 So. 2d at 844-845. Where such factors are not present, however, and a fact finder's determination is based on its decision to credit the testimony of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell, 549 So. 2d at 845.
The rule that questions of credibility are for the trier of fact applies equally to the evaluation and resolution of conflicts of expert testimony. Lasyone v. Kansas City Southern Railroad, 00-2628, p. 13 (La. 4/3/01), 786 So. 2d 682, 693. A fact finder may accept or reject the opinion expressed by an expert, in whole or in part. Green v. K-Mart Corporation, 03-2495, p. 5 (La. 5/25/04), 874 So. 2d 838, 843.
In the instant case, the parties do not dispute that the December 1, 2000 accident caused a fracture of Dudenhefer's 5th metacarpal on her left hand. However, Dudenhefer contests the trial court's finding that the pain associated with the fractured metacarpal lasted for only nine months. Additionally, Dudenhefer contests the trial court's finding that the neck and shoulder pain reported by Dudenhefer in August 2001 was not caused by the December 1, 2000 accident.
Our review of the record indicates that following the accident, Dudenhefer was transported by ambulance to the hospital, and that she complained to both the paramedics and emergency room personnel of left hip pain, left shoulder pain, and left hand pain. Thereafter, Dudenhefer followed up with her primary care physician, Dr. Robert Weiss, Jr., on December 5, 2000. At that time, Dudenhefer complained of pain in her left arm and hand, and pain in her left shoulder and neck. Dudenhefer returned to Dr. Weiss on December 27, 2000, and was still complaining of pain in her left hand. However, she did not report any pain in her shoulder or neck. Because Dr. Weiss determined that Dudenhefer's 5th metacarpal on her left hand was fractured, he referred her to Dr. Sanchez.
Dudenhefer saw Dr. Sanchez on December 28, 2000, and gave a history of developing pain in her left hand following an automobile accident. Dr. Sanchez agreed that Dudenhefer had fractured her 5th metacarpal on her left hand, and related the fracture to the December 1, 2000 automobile accident. However, according to Dr. Sanchez's testimony and the medical records admitted into evidence, Dudenhefer did not make any complaints of shoulder or neck pain. Dudenhfer saw Dr. Sanchez again on January 25, 2001, reporting minimal pain in her left hand, but again, did not make any complaints regarding her shoulder or neck. Dr. Sanchez determined that as of January 25, 2001, her fracture was not yet healed, and advised Dudenhefer to return for follow-up in one month.
Dudenhefer went back to Dr. Weiss in March, April, and July of 2001, for common maladies such as an earache, a skin lesion, and an irritated mole. However, she did not complain at any of these visits of shoulder or neck pain. Dudenhefer returned to Dr. Sanchez on August 23, 2001, some seven months after her last visit with him, and at that time complained of pain in her left hand, as well as pain in the left side of her neck and shoulder. Dr. Sanchez determined that the fractured metacarpal had healed and, upon examination of Dudenhefer's shoulder and neck, found tenderness in her left shoulder and neck. However, because he did not treat neck and back pain, Dr. Sanchez told Dudenhefer to see someone else for that.
On November 7, 2001, Dudenhefer returned to Dr. Weiss complaining of cervical pain. Dr. Weiss diagnosed Dudenhefer with cervical pain with muscle spasm and degenerative arthritis in her neck. However, he found no indicia of cervical radiculopathies. Dr. Weiss stated that it was unlikely, given the length of time, that Dudenhefer's cervical complaints were related to the December 1, 2000 accident. According to Dr. Weiss, he would have expected to see more complaints of cervical pain over the course of the eleven months following the accident if that pain were consistent with the accident. Dr. Weiss did not see Dudenhefer after this date.
According to the medical records, Dudenhefer also saw a chiropractor, Dr. James Shoemaker, on November 1, 2001. At that time, Dudenhefer listed chronic and longstanding neck and shoulder pain beginning on December 1, 2000, and complained of left hand sensitivity and loss of grip. Dudenhefer treated with Dr. Shoemaker until May 2002.
Finally, on June 5, 2002, Dudenhefer saw Dr. Provenza. At that time, Dudenhefer complained of left shoulder pain and pain in the left side of her neck and indicated that she had been experiencing this pain for about one year, or since June of 2001. However, she did not indicate that she had been involved in an automobile accident. Dr. Provenza diagnosed her with cervical radiulopathy. Based on the records that he had reviewed, which did not include Dr. Weiss's records after December 5, 2000, Dr. Sanchez's records, or Dudenhefer's pre-accident records containing a July 30, 1991 complaint to Dr. Sanchez of left-sided neck pain for two weeks without trauma, Dr. Provenza determined that more probably than not, Dudenhefer's left shoulder pain and neck pain that she presented with on June 5, 2002, was caused by the December 1, 2000 accident. Dr. Provenza did not treat Dudenhefer again after the June 5, 2002 visit.
Dudenhefer testified at trial that she never had any neck pain prior to the December 1, 2000 accident. However, medical records admitted into evidence from Dr. Sanchez indicate that on July 30, 1991, Dudenhefer complained of left-sided neck pain for two weeks without trauma. Further, when asked why she did not report any neck or shoulder pain to Dr. Weiss on December 27, 2000, or thereafter, she stated that she did not tell Dr. Weiss, because she was seeing Dr. Sanchez for that. However, Dr. Sanchez's medical records and testimony indicate that she did not make any complaints in her subsequent visits with him of neck or shoulder pain until August 2001. Further, Dudenhefer admitted that she intentionally did not tell Dr. Provenza that she had been in an automobile accident, because she did not think there was a reason to, and because she did not like the way doctors look down on you or do not want to treat you if they know you have been in an automobile accident. We note, however, this did not prevent Dudenhefer from informing her other treating physicians of the December 1, 2000 accident. Finally, Dudenhefer admitted that she voluntarily stopped seeking treatment for any pain after August 2002, because she did not think the doctors would be able to help her unless they gave her pain medication, and she was not going to take pain pills.
Based on our thorough review of the record, we find that the trial court was clearly presented with conflicting expert testimony on the issue of causation of Dudenhefer's neck and shoulder pain. Further, given the significant gap in treatment and Dudenhefer's conflicting testimony, we find no error in the trial court's determination that Dudenhefer failed to prove by a preponderance of the evidence that the December 1, 2000 automobile accident caused the neck and shoulder pain that she reported in August 2001. Likewise, we find no error in the trial court's finding that the December 1, 2000 accident caused a nine month injury to Dudenhefer's 5th metacarpal.
Because we find no error in the trial court's finding on causation, we likewise find no error in the trial court's award of past medical expenses, which did not include any expenses for treatment of Dudenhefer's neck and shoulder pain.
General Damages
Dudenhefer next contends that the trial court erred in awarding only $8,500 in general damages for the fractured 5th metacarpal on her left hand. The trier of fact is accorded much discretion in fixing general damage awards. La.C.C. art. 2324.1; Cheramie v. Horst, 93-1168, p. 6 (La. App. 1st Cir. 5/20/94), 637 So. 2d 720, 723. The discretion vested in the trier of fact is great, even vast, so that an appellate court should rarely disturb an award of general damages. 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).
The role of an appellate court in reviewing a general damage award is not to decide what it considers to be an appropriate award, but rather, to review the exercise of discretion by the trier of fact. Bouquet v. Wal-Mart Stores, Inc., 08-0309, p. 5 (La. 4/4/08), 979 So. 2d 456, 459. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or decrease the award. Youn, 623 So. 2d at 1261.
According to the record, the fracture of Dudenhefer's 5th metacarpal was so small that it was not even detected by the emergency room physicians. After seeing Dr. Sanchez in December 2000, Dudenhefer wore a splint on her left hand for seven weeks and took Advil and Aleve for any pain. Further, though she was supposed to return to Dr. Sanchez one month following her January 25, 2001 visit for follow-up of her as yet unhealed fracture, she did not return until some seven months later, on August 23, 2001. At the August 2001 visit, Dr. Sanchez x-rayed Dudenhefer's left hand and determined that her fracture had healed.
Under these circumstances, considering the testimony, evidence, and jurisprudence, we do not find that the award of $8,500 is unreasonable. Accordingly, we find no abuse of discretion in the trial court's award of general damages.
Expert Witness Fees
Dudenhefer finally asserts that the trial court erred in its award of only $500 each to Dr. Provenza and Dr. Sanchez in expert witness fees for their deposition testimony. A trial court has great discretion in fixing expert witness fees. Samuel v. Baton Rouge General Medical Center, 99-1148, pp. 7-8 (La. App. 1st Cir. 10/2/00), 798 So. 2d 126, 131-132. Factors to be considered by the trial court in setting an expert witness fee include time spent testifying, time spent in preparatory work for trial, time spent away from regular duties while waiting to testify, the extent and nature of the work performed, and the knowledge, attainments, and skill of the expert. Albin v. Illinois Central Gulf Railroad Company, 607 So. 2d 844, 845 (La. App. 1st Cir. 1992). Additional considerations include helpfulness of the expert's report and testimony to the trial court, the amount in controversy, the complexity of the problem addressed by the expert and awards to experts in similar cases. Most importantly, expert witnesses are entitled only to reasonable compensation. Albin, 607 So. 2d at 845-846. The amount agreed upon between an expert witness and the party calling him is not the criteria to be used by the court in assessing expert fees. Albin, 607 So. 2d at 846. On appeal, the amount and fixing of expert fees will not be disturbed in the absence of an abuse of discretion. Samuel, 99-1148 at p. 8, 798 So. 2d at 132.
From our review of the record, we find an award of $500 each for Dr. Provenza and Dr. Sanchez in expert witness fees for their deposition testimony to be reasonable. Though Dudenhefer claims that the cost for deposing Dr. Provenza was $1,200, we note that Dr. Provenza only treated Dudenhefer one time, almost two years after the December 1, 2000 accident. Further, the vast majority of his testimony related to Dudenhefer's shoulder and neck complaints, which the trial court ultimately determined were not caused by the December 1, 2000 accident. Additionally, with regard to Dr. Sanchez, we note that the parties stipulated that the December 1, 2000 accident caused the fracture of Dudenhefer's 5th metacarpal on her left hand, and Dr. Sanchez's treatment of Dudenhefer for this injury was minimal and sporadic. Accordingly, given these circumstances, we find no abuse of discretion in the trial court's award of $500 each for Dr. Provenza and Dr. Sanchez in expert witness fees.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are assessed to appellant, Carol Dudenhefer.
AFFIRMED.