Appeal from The 32nd Judicial District Court,
Parish of Terrebonne, State of Louisiana Trial Court No.
171731 The Honorable John R. Walker, Judge Presiding
Matthew D. Hemmer Adam A. Bosso New Orleans, Louisiana
Attorneys for Plaintiff /Appellant, Eurie Marie.
L. Donovan Jr. Meri M. Hartley Metairie, Louisiana Attorneys
for Defendants /Appellees, Allstate Insurance Company and
Burleigh J. Ruiz.
BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.
plaintiff appeals a judgment dismissing his claims after a
jury found he was not injured in an automobile accident. We
AND PROCEDURAL HISTORY
vehicle operated by Burleigh Ruiz backed out of a parking
space and hit a vehicle occupied by the plaintiff, Eurie
Marie. Ruiz said he was going slowly and the impact "was
so little, I didn't hardly feel it." In contrast,
Marie said Ruiz was traveling about twenty to thirty miles
per hour at the time of impact. Marie told Ruiz he was not
hurt, but added he may need medical treatment in two to three
weeks because his "health is not that good."
Marie's extensive medical history includes multiple
cervical surgeries stemming from a fall about fourteen years
before the automobile accident, severe diabetes and related
neuropathy in his lower extremities, as well as low back
pain. At the time of this automobile accident, Marie had been
disabled for eight years. He most recently sought treatment
for neck pain about five months before the automobile
weeks after the accident, Marie went to the emergency room at
Terrebonne General Hospital complaining of pain in his neck
going down to his left knee. He reported the automobile
accident and stated the symptoms began about two weeks prior
to the emergency room visit. About two weeks later, Marie
treated with a chiropractor for a list of complaints,
including neck, mid back, low back, and left knee pain.
According to Marie, he "experienced immediate" neck
and back pain in this accident that was significantly more
severe than his pre-accident pain, specifying that the pain
levels for his neck and back before the accident were
"5" and "4, " respectively, but both
increased after the accident to "10."
was eventually examined by Dr. Christopher Cenac, an
orthopedic surgeon who had performed his two previous neck
surgeries. Marie complained of low back and left knee pain,
which he claimed started after this accident. MRI studies
revealed a medial meniscus tear in his knee and degenerative
disc disease in his low back. After conservative treatment
for the low back pain was unsuccessful, Dr. Cenac recommended
a laminectomy. For the torn meniscus, Dr. Cenac referred
Marie to Dr. Henry Lawrence Haydel, also an orthopedic
surgeon, who recommended arthroscopic surgery to repair the
tear. Neither of these surgical procedures had been performed
at the time of the trial.
sued Ruiz and his liability insurer, Allstate Insurance
Company, seeking recovery for injuries to his neck, back, and
left knee. The parties stipulated that Ruiz caused the
subject accident. The remaining issues, including whether the
accident caused any injuries to Marie, proceeded to a jury
trial. Marie was the only witness to testify in person.
During direct examination, he offered little testimony to
establish the cause of his injuries, saying only that his
knees struck the dashboard during the accident. When asked
why he did not go to a doctor sooner, Marie replied, "I
didn't feel like nothing was wrong with me." During
cross-examination, Marie said he first noticed swelling in
his knee about two weeks after this accident, when he fell
while cutting grass.
conceded multiple inconsistencies between the medical records
and his earlier deposition testimony. In his deposition, he
denied problems with his low back prior to the automobile
accident; however, his medical records revealed multiple
treatments at a pain management clinic for chronic low back
pain during the two years preceding the accident. While Marie
acknowledged his pre-existing back pain to his chiropractor,
he did not mention it to Dr. Cenac. Marie denied any history
of falls, but his medical records revealed treatment for
frequent falls before the automobile accident. Marie did not
disclose any falls to either Dr. Haydel or Dr. Cenac,
including one that occurred after the automobile accident.
video depositions, the jury heard medical testimony from Dr.
Cenac and Dr. Haydel, as well as from Dr. Andrew Todd, an
orthopedic surgeon retained by the defendants to perform an
independent medical examination. The physicians generally
agreed that Marie suffered injuries in the automobile
accident, including the torn meniscus, but each conditioned
his opinion, particularly as to causation, on the accuracy of
the history provided by Marie regarding the onset of his
symptoms and the absence of any other accidents. When
presented with evidence of Marie's pre-accident treatment
for back pain, Dr. Cenac said Marie "wasn't
forthright" about the treatment and the failure to
disclose it "discredits his history." Both Dr.
Haydel and Dr. Cenac, who were unaware of Marie's
post-accident fall, testified that a fall can cause the type
of knee injury he suffered.
jury rendered a verdict for the defendants, finding Marie did
not suffer any injury caused by the automobile accident. The
trial court signed a judgment in conformity with the
jury's verdict and dismissed the claim with prejudice.
Marie appeals, assigning as error (1) the trial court's
failure to instruct the jury on the
"Housley" causation presumption, ...