WILLIE BROWN, JR.
BREAUX BRIDGE VENTURES, LLC
FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST.
MARTIN, NO. 81561 HONORABLE ANTHONY THIBODEAUX, DISTRICT
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
Scott Iles COUNSEL FOR PLAINTIFF/APPELLEE: Willie Brown
composed of Elizabeth A. Pickett, D. Kent Savoie, and Van H.
KENT SAVOIE JUDGE.
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.
AND PROCEDURAL BACKGROUND
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.
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
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.
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
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[.]"
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
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."
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.
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.
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
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
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.
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.
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
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.
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.
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
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
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.
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, "
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 ...