APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 717-400, DIVISION
"I" HONORABLE NANCY A. MILLER, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, LARRY WARNER AND AVA WARNER
Natashia Carter Benoit, Lori D. Brown
COUNSEL FOR DEFENDANT/APPELLEE, USAA GENERAL INDEMNITY
INSURANCE COMPANY, James R. Nieset, Jr., Kristopher Michael
Gould, Jade E. Ennis
composed of Judges Susan M. Chehardy, Robert M. Murphy, and
Stephen J. Windhorst
STEPHEN J. WINDHORST, JUDGE
Larry and Ava Warner, appeal the trial court's February
2, 2016 judgment, rendered in accordance with the jury's
verdict, and the trial court's August 8, 2016 judgment
denying appellants' motion for new trial and/or judgment
notwithstanding the verdict (JNOV). For the reasons that
follow, we affirm.
and Procedural History
28, 2011, appellant, Larry Warner, was involved in a motor
vehicle accident in which Mr. Warner's 18-wheeler truck
was hit by a vehicle driven by Patrick Alexis and was insured
by USAA Casualty Insurance Company (USAA CIC). Mr. Warner
filed a petition for damages contending that he sustained
injuries as a result of the accident.
the trial on the merits, appellants' case consisted
primarily of the testimony from Mr. Warner and the testimony
from his treating physicians. The following testimony and
evidence was elicited at trial.
Warner testified that on July 28, 2011, it was raining when
he pulled up to the intersection at Mounes Street and South
Clearview Parkway. A vehicle was in front of him when he
stopped at the red traffic light. The light changed to green
and he proceeded forward when he heard a noise and stopped
his truck. He opened the door, attempted to grab the bar to
get down, and in his words, "the bar was wet and the
steps were wet. I fell out of the truck on my butt." He
testified that he was in a hurry to get out when he grabbed
the bar and that when he hit the ground, his buttocks went
numb. On cross-examination, he acknowledged that his feet
slipped off the steps because the steps were wet. He conceded
that he previously testified in his deposition that he was
not in a hurry, he did not mention grabbing the bar to get
out of his truck, and when asked if he was injured when he
fell he stated, "Counsel, I would suppose so."
Warner testified that he is 64 years old and has been driving
trucks since 1975. He conceded that he had back pain prior to
this accident and received treatment from Dr. James Antinnes
with Southern Bone & Joint Specialists, P.A, in
Hattiesburg, Mississippi. He first saw Dr. Antinnes in 2009
and 2010 for back pain. Dr. Antinnes ordered an MRI and
recommended an epidural steroid injection (ESI), which was
performed by Dr. Todd Sitzman. He testified that he did not
treat with Dr. Antinnes or have any back pain between 2010
and this accident, and was able to return to work
consistently. Mr. Warner further acknowledged that he
previously received treatment at the Prentiss Family Medical
Clinic (Prentiss) for back pain and was prescribed Lortab
prior to his accident. The Prentiss medical records showed
that he was diagnosed with sciatica in 2009, continued to
receive treatment for it in 2010, and was prescribed
additional pain medications. Mr. Warner also testified that
he injured his shoulder in a separate accident and received
treatment at Jefferson Orthopedic Clinic (Jefferson
Orthopedic). He additionally received treatment at Ochsner
for a torn ligament in his hand and an MRI for his shoulder
from an injury unrelated to this case. He admitted that he
was also having problems with his back at that time and was
prescribed hydrocodone and tramadol.
Warner testified that he sought medical treatment
approximately a week after the July 28, 2011 accident. He
subsequently conceded that he was first sent to see Dr. Barry
Bordonaro at Allied Adult and Child Clinic (Allied) by his
attorney in September 2011, six weeks after this accident.
Dr. Bordonaro from September 2011 through March 2012, and
received "back and heat treatment and shock." An
MRI was performed in 2012. Mr. Warner acknowledged that Dr.
Bordonaro's medical records did not mention this accident
or that he had been involved in any other accidents in which
he was injured. He testified that he was discharged from
Dr. Bordonaro's care because the treatment did not help
his pain and Dr. Bordonaro recommended that he see Dr.
Antinnes. On cross-examination, Mr. Warner was confronted
with his deposition, and conceded that he had previously
stated in his deposition that his treatment with Dr.
Bordonaro was helpful.
Warner next saw Dr. Antinnes. He saw Dr. Antinnes two times
in 2012 and told him that his lower back and legs were giving
him problems. He did not tell Dr. Antinnes that he had been
involved in an accident. Dr. Antinnes ordered an MRI and Mr.
Warner received an ESI and hydrocodone. He continued to see
Dr. Antinnes through 2014, until Dr. Antinnes recommended
surgery. Mr. Warner testified that he was afraid to have
surgery at his age, and decided against it. Dr. Antinnes then
increased his pain medication. He was last seen by Dr.
Antinnes was November 18, 2014.
Warner stated he next saw Dr. Allen Johnston, at the
Louisiana Orthopedic & Spine Institute (Louisiana
Orthopedic), for the first time in June or July 2015. Dr.
Johnston examined him and performed a procedure in which
needles were inserted into his back. Since he received relief
from the procedure for six days, Dr. Johnston recommended he
have a "burn" procedure performed, which he
declined because it was too expensive. Dr. Johnston then
prescribed tramadol. On cross-examination, Mr. Warner
acknowledged that he told Dr. Johnston that he had a few
symptoms from May 2010 through July 2011, and it was raining
when he got out of his 18-wheeler, slipped, and landed on his
Warner testified that he decided on his own to stop working
in September or October 2011. One of the reasons he could no
longer work was because his "back, rear" would
start to get numb. He was confronted with his deposition
testimony in which he testified that he stopped working in
August 2011, and that he had not worked in any capacity since
the accident. Mr. Warner conceded that since his accident, he
was not declared disabled by any of his doctors and no doctor
told him that he should not or could not work. Mr. Warner was
also confronted with his medical records dated after this
accident, from Louisiana Orthopedic, Jefferson Orthopedic,
and St. Elizabeth Physicians (St. Elizabeth) which conflicted
with his testimony that he had numbness in his back and that
he had stopped working shortly after this accident. His
medical records stated that he did not inform his doctors
that he had any numbness, he was allowed to drive, he
continued to work as a driver after this accident, he did not
list prior injuries on his medical forms, and he had no pain
in his "spine, ribs, or pelvis." Mr. Warner
additionally admitted that he filed a claim for disability
benefits related to an accident that occurred on June 15,
2011, six weeks prior to this accident on July 28, 2011. On
the disability form dated April 20, 2012, Mr. Warner stated
that on June 15, 2011, he "slipped and fell off top of
trailer at work" and injured his "left shoulder and
back." Mr. Warner stated that his last day of work was
"part-time from June 17, 2011, stopped completely
January 6." At trial, when asked if he meant January 6,
2012, Mr. Warner testified he could not say whether
"January 6" referred to 2012.
Warner testified that as a result of his injuries he can no
longer drive his personal truck and has lost personal income,
which has financially impacted his life. He could no longer
drive because he was taking pain medication after this
accident which advised against driving or use of heavy
equipment while taking the medication. He testified that
although he stopped driving between September and October
2011, he continued work in the administrative functions at
his business. Since the accident, he hired a mechanic and
someone to drive his personal truck. When he drove, he earned
100% of his average weekly wages, which were between $1, 800
and $3, 000. On a document created by him and his counsel and
shown to the jury, his average weekly wages were listed as
$1, 800 to $2, 500. When he hired someone to drive his
personal truck, he paid the driver 33% of the gross amount,
which left him receiving 67%, for a "30% loss." He
testified that for future lost earnings based on the
retirement age of 66 years old, he calculated that would lose
"250, 300, 000" over the next two years based on an
average of $2, 300 a week. Mr. Warner further testified that
his injuries affected other areas of his life. Since the
accident, he has not been able to ride horses, drive a four
wheeler, or fish. He also has not been able to perform
Johnston testified that he first saw Mr. Warner on
June 8, 2015, four years after this accident. Mr. Warner told
him that he was previously treating with a doctor that
recommended surgery and he was seeking an alternative to
surgery. Mr. Warner told him that he had pain in his
"low back and right leg" and began having symptoms
on July 28, 2011, when he was involved in an accident while
working as an 18-wheeler driver. Mr. Warner stated that he
got out of his truck while it was raining and "slipped
landing on his buttocks." Mr. Warner informed him that a
year prior to this incident, he had some pain in his low back
and right leg that was treated by a doctor in Mississippi,
but his pain resolved in 2010. He stated that he was symptom
free for a period of at least 14 to 15 months, maybe longer,
prior to this "slip and fall." Mr. Warner stated he
received treatment continuously since 2011. Dr. Johnston
testified that the "fall" in July 2011 "caused
his pain to begin again." He successfully performed a
medial block on Mr. Warner, after which 90%-100% of his pain
went away. Mr. Warner's last visit was in August 2015,
and he recommended that Mr. Warner have an additional
procedure, a Radiofrequency Oblation Neurotomy (RFA). He did
not restrict Mr. Warner's driving because he was not
driving at the time. If he was taking pain medications and
narcotics, he would not have let him drive. Dr. Johnston
conceded that in his deposition he testified that given Mr.
Warner's symptoms, he "would think that he certainly
could drive, " and recommended short distances would be
better, but believed that he could drive. Mr. Warner did not
return to see him.
Johnston's medical records showed that Mr. Warner told
him that he had an accident in 2010, which resulted in
bulging discs and focal protrusions at L3-4 and L4-5, and
that Mr. Warner had a few symptoms regarding his back and
right leg pain from May 2010 to July 2011. Dr. Johnston
reviewed Mr. Warner's MRIs from 2010 and 2012, but
conceded he did not look at the MRIs side by side because
that is something a radiologist does, and in this case, Dr.
Curtis Partington had reviewed the MRIs side by side. Dr.
Johnston further conceded that he described the findings on
both the 2010 and 2012 MRIs as "age-related"
findings and that the 2014 MRI showed a progression of the
pathology previously noted. He agreed that part of his
treatment was to account for the new findings in the 2014
MRI. Dr. Johnston acknowledged that Mr. Warner did not state
he had any numbness on his intake form. He further
acknowledged that when he examined him, Mr. Warner had some
right leg complaints, which could have been related to his
sciatica. Moreover, he conceded that in his report he stated
that it was impossible to say with certainty what percentage
of Mr. Warner's pain was "facet versus
discogenic." He acknowledged that he could not say
whether the pain was from the irritation of the facets versus
whatever was occurring with his discs. He further conceded
that Mr. Warner's facet joints showed wear and tear.
Curtis Partington testified via video
deposition. He testified that he reviewed Mr.
Warner's MRIs and X-rays and issued a report and an
addendum. He only looked at the diagnostic studies
themselves. The June 2011 and November 2012 MRIs were of Mr.
Warner's left shoulder, which are not alleged as an
injury in this case. The January 13, 2012 MRI of his lumbar
spine showed arthritis in the lower three levels, with
bulging discs, arthritis in the joints in the back part of
the spine on the lower three levels, degenerative spine or
joint disease. Mr. Partington associated the findings to be
consistent with the normal aging process and opined that
there was nothing to suggest a superimposed injury on top of
the underlying condition or that the condition was caused by
the motor vehicle accident. He also reviewed three X-rays of
Mr. Warner's lumbar spine. In May 2003, Mr. Warner had
arthritis in his lower back, narrowing of the discs,
spondylosis, disc bulging, and arthritis in the facets. Dr.
Partington testified that this showed Mr. Warner was having
issues for a long time at L3-4, L4-5, and L5-S1 (lower three
levels). These are the same areas shown on the January 2012
MRI. He opined that Mr. Warner had low back issues and
arthritis in his back for at least 8 years prior to this
accident. In October 2003, his films showed the same
conditions. Dr. Partington said that it was obvious that Mr.
Warner had low back pain and radiation down his leg based on
the October 2003 films. In March 2010, his films showed the
same conditions. When he compared the X-rays to the January
2012 MRI, he saw very little change. Dr. Partington opined
that he did not attribute any of the changes in 2012 to a
traumatic injury or motor vehicle accident. In his opinion
the lumbar pain developed from normal wear and tear from
everyday living and was age-related.
Antinnes testified on behalf of the defendant. Dr.
Antinnes testified that he first saw Mr. Warner in 2010, he
had a few visits in 2012, and his most recent visits were in
2014. He saw Mr. Warner about every 2 years. In 2010, he
reviewed Mr. Warner's MRI which showed a L4-5 bulging
disc and degenerative changes (normal age-related changes).
He recommended an ESI, which was performed in April 2010. He
did not recommend surgery nor did he restrict Mr.
Warner's work. On March 6, 2012, two years later, Mr.
Warner complained of low back pain. He said the "pain he
had two years prior came back." A new MRI was ordered.
He compared the two MRIs, which were essentially the same. He
recommended another ESI since Mr. Warner had received two
years of relief from the prior ESI. Mr. Warner did not
mention this accident to him and he was not placed on any
work restrictions. Dr. Antinnes testified that Mr. Warner had
the same complaints, at the same location, and he received
the same treatment. On June 24, 2014, Mr. Warner complained
of back pain with radiculopathy down the right leg. He
recommended another ESI since Mr. Warner had excellent relief
from the ESI in 2012, and it concerned the same areas. He did
not recommend surgery for Mr. Warner. On August 26, 2014, Mr.
Warner stated that he did not obtain any relief from last ESI
and a new MRI was ordered. The MRI of the L4-5 was the same;
however, it also showed new findings at the L5-S1, which had
more degeneration with arthritis, and a cyst in the facet
joint. Dr. Antinnes could not say what happened to cause this
change, but stated that the change shown in the new MRI was
not the type usually related to an event. Also, the cyst was
age-related and not related to an event. He recommended
another ESI at the L4-5 and the L5-S1 and because the cyst
had no symptoms and was asymptomatic, he only watched it at
that time. On his last visit, November 18, 2014, Mr. Warner
stated he was starting to feel better, so he refilled his
current medications and prescribed additional medications.
Mr. Warner also mentioned this accident for the first time on
his last visit. Mr. Warner informed him that his pain began
after someone hit him. Mr. Warner stated that he was getting
out of the truck when he slipped on the catwalk or running
board, and fell to the ground. He did not recommend surgery
and Mr. Warner was not placed on any work restrictions. Dr.
Antinnes testified that after reviewing Mr. Warner's
MRIs, he could not say that this accident caused any of the
Asher was called as a defense expert. Mr. Asher
testified that he was asked to calculate Mr. Warner's
income prior to and after the accident. According to his tax
returns, Mr. Asher stated that Mr. Warner had a loss in 2009
and 2010. He averaged a loss of $1, 258 or he was losing
about a $1, 000 a month after paying all of his business
expenses. In 2011, he made a profit operating at some point
in a different fashion than he did before the accident. In
2012 and 2013, Mr. Warner hired contract labor and his
revenues soared compared to what he was doing beforehand on
his own. Due to the change in his business model as a result
of the accident, Mr. Warner made a profit of around $1, 000 a
month, or $12, 000 a year with him not driving and having his
contractors do the work. His gross revenues increased by
$180, 000 a year from using contractors. Prior to the
accident, he was losing $11, 258 per year in cash. After the
accident, he was making a profit of $11, 484. This was an
annual improvement of almost $22, 742 or $2, 000 a month.
Thus, Mr. Asher opined that based on his observations, when
Mr. Warner was hurt, he was forced to change his business
model. His new business model caused him to not have any
losses after the accident, and increased his profits through
2013. Based on his analysis, Mr. Asher opined that Mr. Warner
did not sustain an economic loss as a result of his injuries.
He further found that Mr. Warner's calculation as to his
future wage loss was not supported by his tax returns.
the testimony and evidence, the jury found that Mr. Alexis
was negligent for the accident. However, the jury found that
Mr. Warner was not injured on July 28, 2011, and, therefore,
did not award damages to Mr. Warner. The verdict of the jury
was made the judgment of the court and all the claims brought
by appellants against USAA CIC were dismissed with prejudice.
Appellants filed a motion for new trial, or alternatively
JNOV, which was denied by the trial court. This appeal
appellate court may not set aside a trier of fact's
finding in the absence of manifest error or unless it is
clearly wrong. Arabie v. CITGO Petroleum, 10-2605
(La. 3/13/12), 89 So.3d 307, 312, citing Rosell v.
ESCO, 549 So.2d 840, 844 (La. 1989). Therefore, in order
to reverse a trier of fact's determination of fact, an
appellate court must review the record in its entirety and
(1) find that a reasonable factual basis does not exist for
the finding, and (2) further determine that the record
establishes that the fact finder is clearly wrong or
manifestly erroneous. Bonin v. Ferrellgas, 03-3024
(La. 07/02/04), 877 So.2d 89, 94-95.
there are two permissible views of the evidence, the fact
finder's choice between them cannot be manifestly
erroneous. Stobart v. State, Through Department of
Transportation and Development, 617 So.2d 880, 883 (La.
1993); Sistler v. Liberty Mutual Ins. Co., 558 So.2d
1106, 1112 (La. 1990). Where there is conflict in the
testimony, reasonable evaluations of credibility and
reasonable inferences of fact should not be disturbed upon
review, even though the appellate court may feel its own
evaluations are as reasonable. Rosell, 549 So.2d at
844. Credibility determinations, including evaluating
expert witness testimony, are for the trier of fact.
Detraz v. Lee, 05-1263 (La. 01/17/07), 950 So.2d
557, 564; Sportsman Store of Lake Charles, Inc. v.
Sonitrol Security Systems of Calcasieu, Inc., 99-0201
(La 10/19/99), 748 So.2d 417, 421. The trial court is in a
better position to evaluate live witnesses, as compared with
the appellate court's access ...