[Copyrighted Material Omitted]
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 669-483, DIVISION " M" . HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING.
DOMINIC N. VARRECCHIO, ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.
SIDNEY J. ANGELLE, ERIK L. VOLLENWEIDER, ATTORNEYS AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.
Panel composed of Judges Robert A. Chaisson, Robert M. Murphy, and Stephen J. Windhorst.
STEPHEN J. WINDHORST, J.
[14-388 La.App. 5 Cir. 2] Appellant, Suzaune McKamey, appeals the trial court's judgment, rendered in accordance with the jury's verdict, and the trial court's denial of appellant's motion for judgment notwithstanding the verdict (" JNOV" ) and motion for new trial. For the reasons that follow, we affirm.
Facts and Procedural History
On February 6, 2008, appellant and her mother, Helen McKamey, were in a motor vehicle accident wherein appellant's vehicle was rear-ended by a truck driven by Greg Carona. The truck was owned by Lamont Murphy and was insured by State Farm Automobile Insurance Company. Appellant filed a petition for damages contending that she sustained injuries as a result of the accident.
[14-388 La.App. 5 Cir. 3] During the trial on the merits, appellant's case consisted primarily of appellant's testimony and the testimony of numerous treating physicians she saw for her alleged injuries. The following testimony and evidence was elicited at trial.
Appellant testified that she was stopped at a red light and felt a " hard impact" when Mr. Carona's truck rear-ended her vehicle. Her mother hit her head on the dashboard, but appellant did not hit anything inside the vehicle. She testified that she subsequently contacted her attorney before going to a doctor and she went to see
Dr. Norman Ott because her attorney referred her to him.
Appellant testified that she was in a prior accident in the mid-1990's and had similar injuries but those injuries had resolved. She saw a chiropractor and orthopedist for the prior accident, but admitted that she did not use the same doctors for this accident. Appellant also testified that she did not have symptoms at the scene, but had symptoms hours after the accident. She acknowledged that Dr. Ott's records showed she denied radiating pain in her extremities for the first two visits with him and that her first recorded complaint of radiating pain occurred in August 2008, six months after the accident. Appellant testified she did not miss work and did not fill any of the prescriptions the doctors prescribed for her. She only took Advil or Aleve as needed. Appellant also testified that her hobbies include swing and ballroom dancing. Appellant admitted that all six of her video performances occurred after the February 6, 2008 accident. Appellant testified that the " Dancing with the Stars" video is not consistent with a typical performance performed by her; rather, her normal routines are more sedentary. Appellant testified she had increased pain after that particular performance. She admitted she [14-388 La.App. 5 Cir. 4] did subsequently perform that same routine the following year and still had pain from the accident.
Appellant saw Dr. Ott for the first time on March 14, 2008, over five weeks after the accident. Appellant informed Dr. Ott that she was in a prior motor vehicle accident approximately ten years ago wherein she sustained a neck injury that resolved. Appellant could not recall where she was treated, so Dr. Ott was not able to obtain her prior medical records to review. Dr. Ott relied on appellant's statement that her prior injuries had resolved. Appellant complained of neck and left ankle pain and related her symptoms to the February 6, 2008 accident. During her first visit, appellant did not complain of radiating pain in her upper extremities and denied any back pain. Dr. Ott diagnosed appellant with post-traumatic headache, cervical/trapezius strain with spasm, lumbar strain and left ankle strain. Appellant again did not complain of radiating pain in her upper extremities and had no back complaints at her second visit on April 7, 2008.
Dr. Ott testified that appellant did not return until over four months later on August 22, 2008. For the first time, on August 22, 2008, appellant complained of radiating pain in her upper extremities. Dr. Ott saw appellant for the last time on September 25, 2008, and appellant's neck discomfort was improved and getting better. Appellant's ankle was tender with full range of motion and no pain with active maneuver. Dr. Ott recommended that appellant get an MRI and see an orthopedist. Appellant did not obtain a MRI, failed to return to see Dr. Ott, and Dr. Ott closed out his file.
[14-388 La.App. 5 Cir. 5] Prior to trial, Dr. Ott testified he reviewed appellant's subsequent treatment, including an MRI taken in 2011. Dr. Ott observed two disc herniations at the C4-5 and C5-6 levels and a bulge at L4-5 level. However, Dr. Ott stated he " would leave these two up to the orthopedic specialist to talk about." Dr. Ott testified that he does not like to use the terms " more likely than," but he testified that based on her history and assuming there are no other intervening accidents or injuries, this accident could have produced her disc herniations. However, Dr. Ott admitted that during his treatment of appellant he never diagnosed her with disc herniations or bulges.
On cross-examination, Dr. Ott acknowledged that 98% of his practice consists of plaintiffs in personal injury cases. Dr. Ott testified he knew appellant was a singer, actress, and entertainer, but he could not testify as to the physical requirements of her job. Dr. Ott also testified that although appellant said her ankle was tender, when he first examined her ankle, it was not swollen, and when he palpitated it, it did not reproduce the pain. Dr. Ott testified that you can get a cervical spasm numerous other ways besides being in a motor vehicle accident or from whiplash. While consistent with whiplash, a spasm is also consistent with degenerative disc disease or arthritis. Daily living, like dancing, can trigger a muscle spasm. Dr. Ott testified that in all likelihood, the bone spur and disc herniation at C5-6 were there prior to the accident. As for the C4-5 herniation, a person can have pain in the neck from a muscle spasm or from a muscle pull that is unrelated to a herniated disc, because you may not always know a herniated disc is there if it is asymptomatic. Dr. Ott also admitted the x-ray of appellant's ankle, performed by his office, was normal which is consistent with the x-ray taken by Dr. David W. Aiken in 2011.
[14-388 La.App. 5 Cir. 6] Next, appellant saw Dr. Marc B. Kruse on June 2, 2009, over eight months after her last visit with Dr. Ott. Dr. Kruse testified that on appellant's first visit, she complained that her left and right trapezius were burning and cramping when she reached for something and she had some low back pain. Appellant also complained of neck and left ankle pain. Appellant did not report any headaches. Appellant told Dr. Kruse that she did not have any other similar or same accidents or injuries, only the February 6, 2008 accident.
Dr. Kruse testified that he observed objective findings of spasms along appellant's trapezius muscle and some in her upper back. Trapezius spasms could be indicative of cervical disc injury or a muscle strain. Dr. Kruse diagnosed appellant with " cervical/thoracic lumbar, sacroiliac and metatarsal/tarsal joint dysfunction." He did not diagnose appellant with disc herniations during her treatment. Dr. Kruse testified that he relied on appellant's intake form and statements in making his diagnosis. Appellant told him her low back pain started with the date of the accident. He was not provided with Dr. Ott's medical records. Dr. Kruse acknowledged that if Dr. Ott's medical records provided that appellant's low back pain began August 22, 2008, appellant's version of facts to Dr. Kruse would be incorrect. Dr. Kruse testified he saw appellant approximately 15 times with the last visit on ...