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Lawrence v. Government Emples. Ins. Co.

Court of Appeal of Louisiana, Fourth Circuit

October 15, 2014

CURTIS LAWRENCE
v.
GOVERNMENT EMPLOYEES INSURANCE COMPANY AND AUSTIN MARKS

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[Copyrighted Material Omitted]

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APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH. NO. 2010-06957, DIVISION " G-11" . Honorable Robin M. Giarrusso, Judge.

Anthony D. Irpino, K. Adam Avin, IRPINO LAW FIRM, L.L.C., New Orleans, LA, COUNSEL FOR PLAINTIFF/APPELLANT, CURTIS LAWRENCE.

Marta-Ann Schnabel, O'BRYON & SCHNABEL, PLC, New Orleans, LA, COUNSEL FOR DEFENDANTS/APPELLEES, GOVERNMENT EMPLOYEES INSURANCE COMPANY & AUSTIN MARKS.

(Court composed of Judge Terri F. Love, Judge Max N. Tobias, Jr., Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins). BELSOME, J., DISSENTS WITH REASONS.

OPINION

Terri F. Love, Judge.

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[2013 1296 La.App. 4 Cir. 1] This appeal arises from a trial regarding injuries the plaintiff allegedly sustained as a result of a motor vehicle accident. The trial court found the defendant was 100% liable for the motor vehicle accident and awarded the plaintiff $15,000 in special damages, $50,000 in general damages,

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and judicial interest from the date of judicial demand until paid, including all costs. However, the trial court did not find a causal connection between the plaintiff's left knee injury, which required surgery, and the motor vehicle accident. The plaintiff appealed alleging that the trial court committed harmful error in failing to find a causal connection between the knee injury and the motor vehicle accident, in disregarding uncontroverted evidence, and abused its discretion by awarding unreasonably low amounts for special and general damages.

We find that the trial court committed legal error in applying an adverse presumption to the medical records of one of the plaintiff's doctors. We also find that the trial court committed legal error in failing to apply the Housley presumption to the plaintiff's injuries. After conducting a de novo review of the record, we find a causal connection between the plaintiff's left knee injury and the motor vehicle accident due to the overwhelming uncontroverted testimony and evidence presented at trial. We amend the trial court's award for special damages [2013 1296 La.App. 4 Cir. 2] regarding past medical expenses, increase the award to $83,706.00, and render. We do not find that the plaintiff met his burden of proof as to future medical expenses because of the speculative nature of the evidence provided as to necessity and cost. Lastly, after our de novo review and given previous jurisprudence, we award $150,000.00 for general damages.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On February 15, 2010, Austin Marks and Curtis Lawrence were involved in a three-car motor vehicle accident, wherein Mr. Marks struck Mr. Lawrence from the rear and pushed Mr. Lawrence's vehicle into the rear of a vehicle stopped in front of his vehicle. Three days after the motor vehicle accident, Mr. Lawrence began receiving treatment for injuries allegedly caused by the motor vehicle accident.

Mr. Lawrence filed a Petition for Damages against Mr. Marks and Government Employees Insurance Company (" GEICO" ), as his uninsured/underinsured insurer and as Mr. Marks' insurer, seeking special and general damages. Mr. Lawrence filed a Supplemental and Amended Petition to include State Farm Mutual Automobile Insurance Company (" State Farm" ), as a vehicle insurer of Mr. Marks, and State Farm Fire and Casualty Company (" SFFCC" ), as the holder of a personal umbrella policy covering Mr. Marks. Meanwhile, Mr. Lawrence settled with GEICO, as his uninsured/underinsured insurer. GEICO was dismissed with prejudice in its capacity as Mr. Lawrence's uninsured/underinsured insurer.

SFFCC filed a Motion for Summary Judgment, which the trial court granted and dismissed SFFCC with prejudice. State Farm filed a Motion for Summary Judgment, which the trial court also granted and dismissed State Farm with [2013 1296 La.App. 4 Cir. 3] prejudice. Mr. Lawrence then filed a Motion for Partial Summary Judgment against Mr. Marks and GEICO (collectively " Defendants" ) contending that the Defendants bore " full and complete liability." The trial court denied Mr. Lawrence's Motion for Partial Summary Judgment. Mr. Lawrence filed a Motion for Recusal based upon the fact that Mr. Marks worked for the trial court as a " volunteer fall intern" when the trial court was ruling on pre-trial motions in the present matter. Counsel for Mr. Lawrence filed a Motion to Withdraw Recusal.[1]

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After a bench trial, the trial court ruled in favor of Mr. Lawrence and found that the motor vehicle accident was solely the fault of Mr. Marks. The trial court awarded Mr. Lawrence $15,000 in special damages and $50,000 in general damages. The trial court also awarded judicial interest from the date of judicial demand until paid and all costs. Mr. Lawrence's devolutive appeal followed.

[2013 1296 La.App. 4 Cir. 4] Mr. Lawrence contends that the trial court erred in finding that he did not prove a causal connection between his injuries and the motor vehicle accident, by ignoring and/or disregarding uncontroverted expert and lay testimony, abused its discretion in arbitrarily awarding $15,000 in special damages instead of $83,706.88, and abused its discretion in awarding $50,000 in general damages.

TESTIMONY & EVIDENCE[2]

Curtis Lawrence

Mr. Lawrence testified that the motor vehicle accident involving Mr. Marks occurred on February 15, 2010, and that Ronald Horn was Mr. Lawrence's passenger. As a result of the motor vehicle accident, Mr. Lawrence allegedly [2013 1296 La.App. 4 Cir. 5] " sustained a knee injury, a dislocated hip, thoracic and lumbar back, neck [injuries] and headaches, [and] TMJ." [3] As to his left knee, Mr. Lawrence stated that he " had an ACL[4] rupture, . . . two lateral meniscus tears, and . . . chondromalacia of the knee." Prior to the motor vehicle accident, Mr. Lawrence did not experience any medical issues or receive medical treatment related to his left knee, thoracic spine, lumbar spine, TMJ, headaches, or hip.

The impact from Mr. Marks' vehicle " was strong enough to push me [Mr. Lawrence] into the car ahead of me." Mr. Lawrence stated that his face hit the steering wheel and " then back against the seat and headrest." Mr. Lawrence also testified that his left knee " just went into the dashboard." The motor vehicle in front of Mr. Lawrence " had very minimal damage." Mr. Lawrence testified that the driver " and Mr. Marks came upon an agreement. He paid him for his damage." [5] Mr. Lawrence and Mr. Marks then parked in a gas station to exchange information without informing the police because the motor vehicle accident occurred the day before Mardi Gras. Mr. Lawrence testified that he experienced " some pain in the knee, back, [and a] headache" on the day of the motor vehicle accident. Mr. Lawrence stated that he visited his grandmother's house to rest that evening and his vehicle was towed from her house.

Three days after the motor vehicle accident, on February 18, 2010, Mr. Lawrence first treated with Dr. Rick Prewitt at the Prewitt Chiropractic Clinic. Mr. Lawrence informed Dr. Prewitt about his " [k]nee, back, neck, [and] headaches." Mr. Lawrence stated that Dr. Prewitt took x-rays of his knee, tested his ligaments, [2013 1296 La.App. 4 Cir. 6] utilized heat and ice pack therapy, a TENS unit, and " things like that."

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Regarding his headaches, Mr. Lawrence stated that he has headaches on " [a]bout a daily basis until [he] was put on the medicine." He expounded that " the medicine has kind of been able to control [headaches] to a certain extent." Mr. Lawrence explained that his headaches remain the same in type as the headaches he began to suffer after the motor vehicle accident. Mr. Lawrence continues to take Naprelan 500, Klonopin, and Soma, and stated that the prescriptions cost " [a]bout $491 a month." Mr. Lawrence testified that he is still participating in physical therapy for his back and his left knee. He expects another three months of physical therapy will be required.

TMJ caused Mr. Lawrence to experience spasms in his jaw to such an extent that he could not eat certain foods. After wearing a TMJ splint " all the time" for approximately a year, Mr. Lawrence's TMJ has " gotten better since the accident." However, Mr. Lawrence suffers from a " spasm from time to time depending on what [he] eat[s] . . . or if he " laugh[s] too hard, something like that." When his jaw begins to hurt, Mr. Lawrence uses a warm or cool towel and takes either Advil or Aleve. Mr. Lawrence stated that his jaw spasms " [m]aybe once a week."

Dr. Prewitt allegedly informed Mr. Lawrence that his hip was " out of line" and performed adjustments to his spine and hip. The adjustments " helped to a certain extent," but Mr. Lawrence continues to experience pain in his left hip. Mr. Lawrence testified that " maybe once or twice a week" if he has " been walking too long," his " hip - - the pain will radiate down or it will kind of like tender type hip."

Since the motor vehicle accident, Mr. Lawrence testified that he is unable to exercise as he did before and that he is " [n]ot as active." Mr. Lawrence stated that he " can't look at a computer" and that he " couldn't concentrate at school." Mr. [2013 1296 La.App. 4 Cir. 7] Lawrence testified that the total amount of medical expenses he incurred as a result of the motor vehicle accident was $83,706.00." [6]

During cross-examination the Defendants elicited testimony, after the trial court sustained Mr. Lawrence's objection, regarding Mr. Lawrence's income.[7] Mr. Lawrence stated that he made $25,000 in 2009, $277,000 in 2010, and $300,000 in 2011 from his long-haul trucking company. The Defendants questioned Mr. Lawrence regarding private student loans that he utilized to purchase a computer, books, and some properties. Mr. Lawrence testified that he borrowed $25,000 to pay for college. However, he " decided" that he " wanted to use it - - some of it to buy property." Mr. Lawrence also admitted, via the Defendants' questions, that he was involved in a court case regarding disciplinary problems when he was in high school. The trial court stated the following regarding the admissibility of the above-mentioned testimony: " I allowed it in for credibility . . . but it goes to his credibility. And obviously, I'm going to have to read the decision and see what it says."

Curtis Jude Lawrence, Sr.

Mr. Lawrence's father testified that before the motor vehicle accident his son was " [a]ctive, very involved, busy body, constantly going, always moving, health [sic]." Prior to the accident, his son did not experience any back problems, left knee problems,

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TMJ, or problems with headaches. Mr. Lawrence, Sr. stated that Mr. Lawrence was " a little disoriented" after the motor vehicle accident. He testified that his son was complaining of back pain and knee pain. Mr. Lawrence, Sr. testified that following the motor vehicle accident his son was " not active at [2013 1296 La.App. 4 Cir. 8] all," he cannot assist with work around the home, and has trouble sleeping. Mr. Lawrence told his father that he struggled with problems concentrating at school, as well as suffered from back pain and knee pain. Further, Mr. Lawrence, Sr. stated that his son sleeps on the floor " [a] lot" due to problems with sleeping in his bed and that he becomes " a little moody sometimes."

Austin Marks

Mr. Marks testified that on the day of the motor vehicle accident he did not take any medications or consume any alcohol. Although he " screeched" on his brakes, his " front hood hit his [Mr. Lawrence's] back hood." Mr. Marks stated that the driver in front of Mr. Lawrence left the scene. Mr. Marks also testified that he did not pay that driver any money. Mr. Marks stated that neither he nor Mr. Lawrence called the police because the motor vehicle accident occurred the day before Mardi Gras. Mr. Marks believed that Mr. Lawrence was not injured because he was allegedly walking around and bending after the motor vehicle accident. They exchanged information and Mr. Marks telephoned Mr. Lawrence the following day wherein Mr. Lawrence indicated that he was enjoying Mardi Gras. Mr. Marks testified that " the impact was - - was minimal enough that all of our cars just stayed straight." Mr. Marks stated that both vehicles were " drivable" and that he believed he was at fault for the motor vehicle accident.

Ronald Horn, Jr.

Mr. Ronald Horn, Jr. was Mr. Lawrence's passenger at the time of the motor vehicle accident. Mr. Horn described the impact as a heavy impact and a seven on a scale of one to ten. After exiting the vehicle, Mr. Horn reentered Mr. Lawrence's vehicle to sit. When Mr. Horn attempted to explain what he overheard Mr. Marks say to the first driver, the trial court would not allow the testimony. From Mr. [2013 1296 La.App. 4 Cir. 9] Horn's vantage point in Mr. Lawrence's vehicle, he was unable to see Mr. Marks give anything to the first driver that he knew was money.

Dr. Rand Marcel Voorhies

Dr. Rand Voorhies, Mr. Lawrence's expert in neurosurgery as well as Mr. Lawrence's treating neurosurgeon, testified that he treated Mr. Lawrence since September 8, 2010, and that he is in the best position to determine Mr. Lawrence's injuries from a neurological perspective and the cause of the injuries. Dr. Voorhies stated that Mr. Lawrence's cervical pain was medically more probable than not caused by the motor vehicle accident of February 15, 2010. The motor vehicle accident medically more probable than not also caused Mr. Lawrence's lumbar and thoracic spine injuries, as well as his headaches. Dr. Voorhies' " initial medical narrative report" from September 8, 2010, provided that:

[p]art of the injury sustained involved the left knee, and I understand that surgical intervention has been recommended for torn ligaments in the knee. I think Dr. Prewitt is correct in that at least part of the persistent back problems are related to gait and balance as a result of the knee problem. On the other hand there is some focal tenderness and localization of pain over the mid thoracic region, which was not imaged by the lumbar MRI.

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In treating Mr. Lawrence, Dr. Voorhies utilized Mr. Lawrence's history, physical exam, and diagnostic tests.

Dr. Voorhies testified that Mr. Lawrence complained of " [m]id-thoracic pain with some radiation into the lower lumbar area and to the iliac crest regions bilaterally" and " [a]lso [the] left knee." " Mr. Lawrence was initially rather shaken up, but later that day began to experience symptoms that progressed over the next day or so." Dr. Voorhies stated that there was a temporal connection between Mr. Lawrence's pain and the motor vehicle accident. While performing a verbal [2013 1296 La.App. 4 Cir. 10] history of Mr. Lawrence, Dr. Voorhies learned that Mr. Lawrence never experienced back problems of this " severity" and " longevity" or back problems that interfered with sleep. Prior to meeting with Mr. Lawrence, Dr. Voorhies reviewed the medical records from Dr. Prewitt and Dr. Stephen Tramuta, as well as a lumbar MRI.[8] Dr. Voorhies testified that Mr. Lawrence had " bulges" at the L-2-3 and L-3-4 with " slight dextroscoliosis with the apex at L-1." Dr. Voorhies stated that there was no evidence to show whether Mr. Lawrence had the " bulges" prior to the motor vehicle accident or whether the " bulges" appeared after the motor vehicle accident. Dr. Voorhies performed a physical exam and found " tenderness over the knee, tenderness over the mid-thoracic spine," but " [n]o nerve damage."

Dr. Voorhies recommended additional diagnostic tests, which depicted a " [v]ery small bulge at T1-T2, but" he " did not judge it to be clinically significant." Mr. Lawrence was still suffering from " axial joint pain of the thoracic spine," so Dr. Voorhies recommended " a SPECT[9] scan." One and a half years after the motor vehicle accident, Mr. Lawrence continued to suffer from thoracic lumbar pain. Mr. Lawrence's thoracic SPECT scan from May 2012,[10] showed " minimally increased activity in the anterior column of the mid-thoracic spine" and " increased metabolic activity," which is indicative of infection, cancer, or post-traumatic inflammation. Accordingly, Dr. Voorhies ordered a CT[11] scan, which revealed " increased focal metabolic activity in the anterior column." The abnormality was in the same location as Mr. Lawrence's pain. Thus, Dr. Voorhies stated that this [2013 1296 La.App. 4 Cir. 11] reinforced the diagnosis. Dr. Voorhies then referred Mr. Lawrence to an interventionist for an epidural steroid injection (" ESI" ) in the thoracic spine at the T-7, 8, and 9 as a target zone. The ESI " procedure had been terrifically effective," which " strongly suggests that the pain is on that area some place." Dr. Voorhies found that it was medically more probable than not that the need for the ESI treatment was caused by the motor vehicle accident. Dr. Voorhies recommended a series of ESI procedures, " generally up to three." Dr. Voorhies stated that there was a possibility that Mr. Lawrence would require more than three ESI procedures.

As part of Dr. Voorhies' treatment, he looks for signs or symptoms of magnification or exaggeration of symptoms, but he did not see any of this while treating Mr.

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Lawrence. Dr. Voorhies testified that Mr. Lawrence could not fake the objective tests depicting the thoracic and lumbar bulges and abnormalities. However, it is the doctor's responsibility to determine the cause and extent of the injuries. Dr. Voorhies testified: " [i]n my view, three to five years of the prognosis would be a good guess," which meant that Dr. Voorhies " would expect him to slowly, incrementally get better within that framework." However, Dr. Voorhies stated that the bulges will worsen over time.

In 2011, Dr. Voorhies did not " believe that surgical intervention would be in Mr. Lawrence's best interest" and did not recommend surgery. Also in his 2011 report, Dr. Voorhies believed Mr. Lawrence suffered from " [w]idespread axial joint pain with post traumatic cephalgia." By February 11, 2011, Dr. Voorhies began to " wonder if these headaches could be a variant of post traumatic migraines." However, Dr. Voorhies deferred to Dr. Daniel Trahant as to the treatment of Mr. Lawrence's ...


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