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Brown v. Breaux Bridge Ventures, LLC

Court of Appeals of Louisiana, Third Circuit

February 15, 2018

WILLIE BROWN, JR.
v.
BREAUX BRIDGE VENTURES, LLC

         APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 81561 HONORABLE ANTHONY THIBODEAUX, DISTRICT JUDGE

          Nelson W. Wagar, III Sarah W. Hickman Wagar Richard Kutcher Tygier & Luminais, LLP COUNSEL FOR DEFENDANT/APPELLANT: Breaux Bridge Ventures, LLC d/b/a Silver's Casino

          R. Scott Iles COUNSEL FOR PLAINTIFF/APPELLEE: Willie Brown

          Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Van H. Kyzar, Judges.

          D. KENT SAVOIE JUDGE.

         In this slip and fall case, Defendant Breaux Bridge Ventures, LLC d/b/a Silver's Casino appeals the trial court's JNOV granted in favor of Plaintiff Willie Brown, Jr. and judgment increasing the jury's award of $25, 000 for "past and future physical and mental pain and suffering, and physical impairment" to $250, 000. For the following reasons we reverse the JNOV granted in favor of Mr. Brown and reinstate the jury's verdict.

         FACTUAL AND PROCEDURAL BACKGROUND

         Mr. Brown alleges that he was injured when he fell in the parking lot of Silver's Casino on October 13, 2013. He was sixty-five years old at the time. On that date, Mr. Brown and his wife were patrons of the casino. Per Mr. Brown, the casino unexpectedly lost electricity and he and his wife exited to the parking lot at the direction of casino management. He alleges that it was dark outside at the time, and that he stumbled and fell as he walked back toward the casino when patrons were allowed to reenter. He filed suit against Silver's Casino on June 9, 2014. Trial was held September 29-30, 2015.

         At trial, Mr. Brown testified that on the day of the incident, he fell, hit his head "hard, " "twisted, " and fell on his shoulder. He stated, "right at that moment, I just fell. I didn't feel any pain hardly." Mr. Brown did not seek medical treatment that day.

         Mr. Brown testified that the next morning at about 6:00 a.m. he woke up with "a big old knot, and it was like a big scab. It was turning. And my vision in this right eye was blurred." His wife thereafter brought him to the emergency room at St. Martin Area Hospital. Mr. Brown testified that his initial complaints were his head injury and blurred vision, that a CT scan was performed at the hospital, and that he was advised to see an ophthalmologist or an optometrist regarding his blurred vision. According to the medical records from St. Martin Area Hospital, Mr. Brown was discharged the same day with a diagnosis of a head abrasion, and he was prescribed ibuprofen.

         According to Mr. Brown, a few days later his neck and shoulder started hurting and he noticed some swelling. When asked how it felt, he stated, "if I'd bend my neck, I could feel it. It was like a lump right there. And I still have it. It would just bother me, and my shoulder too." He testified that he did not have any pain in his neck or shoulder before the incident.

         Mr. Brown's attorney referred him to Dr. Mathew Abraham. Dr. Abraham's video deposition as well as his medical records were submitted into evidence. Mr. Brown first saw Dr. Abraham on October 22, 2013. Dr. Abraham testified that at this time, Mr. Brown explained the incident at issue indicating that he had hit his forehead and had some swelling, and that when he fell, he braced himself with his left arm and rotated to his right, impacting his right knee. The medical record from this date notes that Mr. Brown reported "some cervical discomfort [, ] worse over the left side and mainly involving the left shoulder and left chest wall." Dr. Abraham testified that Mr. Brown "had a contusion over the right forehead and complained of occasional visual disturbances. He had some cervical discomfort after the injury. He had a discomfort involving his left shoulder and interior chest wall. And he had [an] abrasion over the right knee[.]"

         Dr. Abraham stated that he initially believed Mr. Brown had a soft tissue injury, specifically, "sprains with some myofascial strains" that could improve over time with therapy, at an average of three to six months. Dr. Abraham therefore recommended physical therapy as well as an evaluation by an ophthalmologist. As of the date of Dr. Abraham's initial exam, Mr. Brown reported he took the following medications: Lisinopril, Motrin, Ambien, and Mobic, as needed. Dr. Abraham testified he did not know what provider had proscribed Mobic, which is a medication for pain.

         Mr. Brown testified that he thereafter attended physical therapy at Dr. Abraham's clinic four times a week initially, and then three times a week, while under Dr. Abraham's care. He stated that the physical therapy "worked a little while, and then I started having a lot of swelling. And they would come in, and the lump in my neck, it would go down and it would come back up again. And it started hurting."

         Mr. Brown saw Dr. Abraham again on November 19, 2013. Dr. Abraham testified that at this time, Mr. Brown

was worried about his left shoulder, having continued pain in the cervical area. He had limited improvements with therapy but it wasn't worsening. He had an examination with the ophthalmologist. He said his knee pain was improved. The chest wall discomfort had somewhat improved. So he had some areas of improvement and other areas that were not.

         Dr. Abraham's medical report from November 19, 2013, notes "[l]eft cervical and upper thoracic myofascial strain involving the left shoulder." It further states that "therapeutic modalities" for his complaints would continue, but that if there was no significant improvement over the next few weeks, an evaluation with a specialist may be considered. Dr. Abraham additionally prescribed Lortab.

         Mr. Brown's next appointment with Dr. Abraham was December 17, 2013. Dr. Abraham testified that at this time Mr. Brown "had some improvements of the thoracic and cervical area, but still had discomfort and pain. The discomfort was improving slowly." Dr. Abraham also noted that Mr. Brown's primary complaints were tenderness on the left side of his neck and left shoulder. He further indicated that Mr. Brown had regularly attended physical therapy since his initial appointment. Dr. Abraham's medical record from that date reflects that Mr. Brown reported seeing an ophthalmologist and that he had fewer complaints of "floaters." The report also states that Mr. Brown was to continue his current medications, as well as "[c]ontinue therapeutic modalities, which are having benefit."

         Dr. Abraham saw Mr. Brown again January 14, 2014. Dr. Abraham's medical record from this date states:

Mr. Brown is here today for follow-up evaluation. He has had improvements over the past month. The cervical discomfort is improved significantly, as well as the left upper myofascial strain. He has some discomfort over the anterior aspect of the neck, where it attaches to the clavicle, but otherwise he feels better.
He had some tenderness over the anterior cervical musculature near the clavicular area. That being said, there was no instability of the clavicle. This is also improvement. He had minimal discomfort or tenderness at all over the left cervical and upper thoracic area at the time of exam.

         The January 2014 medical record further reflects that Lortab was discontinued, and that Mr. Brown would take non-steroidal anti-inflammatory medication as needed. Dr. Abraham testified that Mr. Brown was still attending physical therapy as well.

         Mr. Brown next saw Dr. Abraham on February 18, 2014. Dr. Abraham's medical report from this date states Mr. Brown "has continued pain over his left shoulder, especially with elevation of the shoulder above horizontal. The pain is not improved[, ]" but his cervical pain "had significant improvements with therapy." Dr. Abraham testified that at on this date, he recommended an MRI of Mr. Brown's left shoulder, which revealed "a mild . . . labral tear." Based on the results of the MRI, Dr. Abraham referred Mr. Brown to Dr. Louis Blanda, an orthopedic surgeon.

         Mr. Brown saw Dr. Abraham again in March 2014. At that time he had not yet seen Dr. Blanda. Dr. Abraham's report from that date reflects "significant pain over his left shoulder, " and "cervical pain that has improved." Mr. Brown's last visit with Dr. Abraham was May 20, 2014, at which time Mr. Brown was treating with Dr. Blanda. Due to Dr. Blanda overseeing his care, no follow up appointments were scheduled.

         Mr. Brown testified at trial that after the several months of treating with Dr. Abraham, his neck was still hurting, and that his worst problem "three, four, five months, after the accident" was his neck. When asked to describe what his neck felt like then, Mr. Brown stated:

I can't turn my head real fast. I went to the doctor one day, and he did a little test. He just took his hand and put it on the top of my head and pushed down. And believe me it hurt. When I go to bed at night, I can't rest. I wind up getting out of bed several times a night. I go cut the TV on, and I sit down in a recliner. And that's been going on for quite a while.

         Mr. Brown first saw Dr. Blanda on April 17, 2014. Dr. Blanda's video deposition and medical records were admitted into evidence. Dr. Blanda's medical record from that date states:

Patient words: This is a 65 year old right handed male referred by Dr. Matthew Abraham for evaluation of left shoulder complaints. ... He was initially concerned about his head injury and a few days later he began with left shoulder pain.
The patient retained the services of Scott Isles who sent him to see Dr. Abraham who treated him conservatively with medications and physical therapy. This was not working and the patient was sent for a left shoulder MRI on February 20, 2014. He was told he had a bad tear in his shoulder and was referred here for orthopedic evaluation.
The patient is complaining of an aching, burning pain in his left shoulder that he rates an 8 on a scale of 0-10. He has a tingling sensation and pins and needles sensation in his shoulder.

         Dr. Blanda testified that on April 17, 2014:

I examined his neck and left shoulder and his arm. In the neck area, he had restrictive range of motion. A maneuver, which is a compression-type test, did produce pain in both shoulders and arms. He had muscle spasms in his neck muscles. Range of motion, as mentioned was painful, especially with his bending forward. His shoulder showed some weakness in the general area of the shoulder girdle. He had some weakness with grip and also with the bicep muscle.
The shoulder itself showed some weakness with abduction, meaning his ability to lift his shoulder, and also some pain with range of motion both active, which is the patient's lifting of the arm, as well as my range of motion by bringing his arm through rotation and lifting. There was also some mild stiffness, and he had tenderness in the AC joint, which is the joint where the collarbone attaches to the shoulder.
So I felt he had both problems with the neck and the shoulder. He had some neurological changes as well as some weakness in the primary shoulder exam itself.

         Dr. Blanda also testified that he had reviewed the MRI of Mr. Brown's left shoulder previously ordered by Dr. Blanda, noted that it "showed some degenerative changes, " and stated:

Dr. Abraham thought he had a bad tear, but it looked like he had mostly arthritic change in the . . . joint where the collarbone attaches, as well as the ...

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