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Ober v. Champagne

Court of Appeals of Louisiana, Fifth Circuit

December 16, 2014

DONALD M. OBER, III AND LACIE OBER, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN
v.
GREG CHAMPAGNE, SHERIFF OF ST. CHARLES PARISH, DEPUTY JOHNNY A. CHAMPAGNE, ABC INSURANCE COMPANY, DEF INSURANCE COMPANY, GHI INSURANCE COMPANY

Page 255

ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT, PARISH OF ST. CHARLES, STATE OF LOUISIANA. NO. 73,368, DIVISION " D" . HONORABLE M. LAUREN LEMMON, JUDGE PRESIDING.

DAVID W. ARDOIN, MATTHEW D. ORY, ATTORNEYS AT LAW, Thibodaux, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.

JERRI G. SMITKO, ATTORNEY AT LAW, Houma, Louisiana, COUNSEL FOR PLAINTIFF/APPELLEE.

MARK E. HANNA, TREVOR M. CUTAIAR, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.

DON A. ALMERICO, ATTORNEY AT LAW, St. Rose, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.

Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Hans J. Liljeberg.

OPINION

Page 256

[14-170 La.App. 5 Cir. 3] Robert A. Chaisson, Judge.

Greg Champagne, Sheriff of St. Charles Parish, et al., appeal a judgment in favor of Donald M. Ober, III, Lacie Ober, and their two minor children, in this motor vehicle accident case. For the following reasons, we affirm the JNOV rendered in favor of Donald M. Ober, III, but reinstate the jury verdicts as to Lacie Ober and the two minor children.

FACTS AND PROCEDURAL HISTORY

The facts of the accident need not be given in detail as liability was established by stipulation. It is sufficient only to point out that Mr. Ober's stopped pick-up truck was rear-ended by a sheriff's cruiser involved in a high speed chase.

It was established at trial that Mr. Ober suffered a number of injuries traceable to the accident of May 4, 2010. Immediately after the accident he was taken to St. Charles Parish Hospital, where he complained of head, chest and back pain. He was then transported to Ochsner Medical Center with continuing back pain. On May 31, 2010, he saw Dr. Christopher Cenac, an orthopaedic surgeon, who diagnosed him with a herniated L4-5 disc and a SLAP tear.[1] An MRI performed a month later confirmed the disc herniation. Dr. Cenac originally recommended that he see Dr. Mitchell Brian, a chiropractor. After several treatments, Dr. Brian referred him to an orthopedist for surgical repair of the SLAP tear. He was subsequently seen by Dr. Brian Soulie for physical therapy. He was [14-170 La.App. 5 Cir. 4] next referred to Dr. Michael Haydel, a pain specialist, who

Page 257

treated him for back pain with epidural injections. Dr. Haydel noted back pain radiating into the hip and lower extremities. When the pain continued in spite of the injections, Dr. Haydel sent him back to Dr. Cenac.

Dr. Cenac performed a L4-5 microdiscectomy, which provided some relief. However, the back pain continued and Dr. Cenac described this condition as chronic. It was Dr. Cenac's further opinion that Mr. Ober would either learn to live with the pain or undergo a spinal fusion cage surgery. He also stated that even if this later surgery were to alleviate the pain, Mr. Ober would still not be able to return to work as a pipefitter or as a commercial fisherman.[2]

Mr. Ober returned to Dr. Haydel, who confirmed that scar tissue from the spinal surgery was impinging on the nerves and causing pain. His opinion was that Mr. Ober will never be symptom free, and will probably remain on a regimen of substantial pain medication, including hydrocodone, for the foreseeable future. He also stated that Mr. Ober would never work as a pipefitter or fisherman again.

Dr. Neil Baum, a urologist, was called by the defense, and testified that although Mr. Ober did have erectile dysfunction, it was not caused by any physical problem, but was probably due to medications, high blood pressure, smoking, depression and pain disorder. He also testified that there was no evidence that the ...


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