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Marie v. Allstate Insurance Co.

Court of Appeals of Louisiana, First Circuit

June 14, 2017


         On 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.

          James L. Donovan Jr. Meri M. Hartley Metairie, Louisiana Attorneys for Defendants /Appellees, Allstate Insurance Company and Burleigh J. Ruiz.


          CRAIN, J.

         The plaintiff appeals a judgment dismissing his claims after a jury found he was not injured in an automobile accident. We affirm.


         A 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 accident.

         Three 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."

         Marie 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.

         Marie 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.

         Marie 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.

         Through 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.

         The 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, ...

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