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Mosbey v. Parish

Court of Appeals of Louisiana, Fifth Circuit

June 27, 2018





          Panel composed of Judges Jude G. Gravois, Robert A. Chaisson, and Hans J. Liljeberg


         Plaintiff, John Mosbey, Jr., appeals a judgment entered by the trial court on September 8, 2017, against defendants, Joseph P. Lopinto, III, Sheriff of the Parish of Jefferson ("Sheriff) and its employee, Dale Bruce. Plaintiff argues the judgment is erroneous for three reasons: 1) the trial court awarded less than the proven and stipulated amount for past medical expenses; 2) the trial court failed to award future medical expenses; and 3) the trial court failed to award future general damages. For reasons stated more fully below, we affirm the trial court's judgment.


         On December 29, 2011, Dale Bruce, a Jefferson Parish Sheriffs Office deputy, struck the back of a Ford F-250 pickup truck driven by plaintiff on Transcontinental Drive in Metairie, Louisiana. Plaintiff was slowing to turn into a private driveway when the accident occurred. On November 20, 2012, plaintiff filed a petition for damages against the Sheriff and his employee, Mr. Bruce, seeking past and future medical expenses and general damages. Prior to trial, defendants stipulated that Mr. Bruce was acting in the course and scope of employment at the time of the accident and also stipulated to liability.

         A bench trial was held on August 28, 2017. At the conclusion of the trial, the judge took the matter under advisement. On September 8, 2017, the trial court signed a final judgment and declared defendants "liable to Plaintiff for damages as a result of the collision at issue in this litigation." The trial court awarded plaintiff past medical expenses and general damages as follows:

• $21, 186.71 in special damages ($18, 513.00 for medical visits and $2, 673.71 for prescriptions); and
• $64, 000.00 in general damages ($2, 000.00 a month for 6 months; $1, 000.00 a month for 42 months; and $500.00 a month for 20 months).

         The trial court did not award future medical expenses or future general damages and did not provide written reasons for its decision. On September 27, 2017, plaintiff filed a timely motion and order for devolutive appeal, which the trial court granted on the same day.

         On appeal, plaintiff contends the trial court erred by failing to award him the full amount of past medical expenses proven at trial. He further argues the trial court was clearly wrong by failing to award future medical expenses and general damages because he suffered permanent injuries to his cervical spine and nerves, and suffered from carpal tunnel syndrome in both wrists as a result of the accident. He contends that he continues to suffer from chronic headaches and neck pain, sleep difficulties and erectile dysfunction, all requiring future medical treatment. He further argues that all of his treating physicians indicated the accident at issue was the cause of his ongoing complaints.

         Defendants argue in response that the evidence demonstrates inconsistencies between plaintiff's claims regarding the nature of his complaints and the complaints reflected in his medical records. They also argue that plaintiff's treatment was limited to two delayed epidural steroid injections and pain medication and he failed to take appropriate steps to properly address his injuries over the past six years. Defendants argue the trial court did not believe plaintiff was credible and believed he was exaggerating his symptoms. They argue the trial court correctly determined that plaintiff's injury was an exacerbation of a preexisting condition that could have resolved if plaintiff followed his treating physicians' recommendations in a timely manner.


         At the time of the accident, plaintiff was 34 years old. He testified that he dropped out of school when he was in the seventh grade to work for his father as a mechanic in his transmission shop. In 1996, plaintiff opened his own transmission shop, which he continued to operate at the time of the trial.

         Plaintiff testified that his vehicle was totaled as a result of the accident at issue and he suffered injuries to his neck and mid-back between his shoulder blades. Following the accident, he complained of headaches, arm numbness, and arm and back pain. Plaintiff testified that before the accident, he did not take any medicine and did not suffer from any of the symptoms he continues to experience. Plaintiff also testified that since the accident, he has not sustained any other injuries and this is the only lawsuit he has ever filed. He testified that due to the accident, he is unable to work the same hours in his shop as prior to the accident.[1]He also testified that he can no longer engage in his hobby of restoring and showing antique cars.

         Five days after the accident, plaintiff went to see an internist, Dr. Leia A. Frickey, at Metairie Health Care Center. Plaintiff complained of right shoulder pain, right arm pain, neck pain with right hand numbness/tingling sensations, right calf pain and headaches. Dr. Frickey recommended therapy treatments consisting of moist heat, electromuscular stimulation and ultrasound, as well as stretching exercises at home. She also prescribed Naproxen and Flexeril. On direct examination, plaintiff testified the therapy did not alleviate his symptoms. However, Dr. Frickey's records from plaintiff's March 16, April 19, and June 21, 2012 visits indicate that plaintiff reported the "modality treatments/exercises were helpful."

         On cross-examination, plaintiff initially denied his headaches became less frequent and severe during his treatment with Dr. Frickey. When confronted with Dr. Frickey's medical reports indicating plaintiff eventually reported after several months of treatment that his headaches were light and rare, plaintiff explained the medication prescribed by Dr. Frickey helped with the headaches. Plaintiff denied the accuracy of Dr. Frickey's May 18, 2012 report, which stated plaintiff was no longer experiencing headaches. Defense counsel also questioned plaintiff regarding the frequency of the therapy treatments he received during the six months he treated with Dr. Frickey. Plaintiff recalled going for treatment once a week. Defense counsel noted that Dr. Frickey's records indicated plaintiff only went for therapy treatments on four occasions during his six months of treatment with her.

         Plaintiff testified that because he was still experiencing problems, he decided to consult with an orthopedic surgeon, Dr. George Murphy. Plaintiff testified that during his first visit on July 10, 2012, he told Dr. Murphy he was experiencing headaches, pain in his arm/mid-back/between the shoulder blades and numbness in his arm. Dr. Murphy's notes from that visit do not mention headaches, but indicated plaintiff reported pain in his neck and across his shoulders, numbness in his right arm from the elbow down and tingling in his left arm from the elbow down. Plaintiff reported that he experienced these symptoms at "night time." Dr. Murphy diagnosed plaintiff with cervical strain and also noted plaintiff had "a positive Phalen's test in both wrists indicating carpel tunnel syndrome." Dr. Murphy reported plaintiff "will get a brace for both wrists." Plaintiff testified that he wore the wrist brace "[f]or a little while."

         On cross-examination, defense counsel questioned plaintiff as to why Dr. Murphy's records did not reference his complaints regarding headaches during his initial visit on July 10, 2012.[2] Plaintiff testified that he reported his complaints regarding headaches to Dr. Murphy at his very first visit and could not explain why his records did not reference the headaches he was experiencing.

         Following plaintiff's first visit, Dr. Murphy ordered an MRI (magnetic resonance imaging). Plaintiff returned to see Dr. Murphy on July 23, 2012. Dr. Murphy's notes indicated the braces helped "the carpal tunnel," and the MRI found degeneration and bulging. Furthermore, because plaintiff was experiencing radiating pain from his neck into both of his upper arms, Dr. Murphy ordered an EMG (electromyography) and nerve conduction study of both upper extremities, and prescribed Rozerem and Ultram.

         Dr. Murphy's next visit with plaintiff was on October 30, 2012, following the completion of the nerve testing. Dr. Murphy explained that Dr. Daniel Trahant conducted the testing and reported damage to the left C6 nerve root in plaintiff's neck and carpal tunnel syndrome in both wrists. Dr. Trahant did not find any nerve root pathology on the right side. Based on the results of these tests, Dr. Murphy believed plaintiff was a good candidate for an epidural steroid injection. He explained that the injection is an outpatient procedure that can be done in a day and can reduce swelling or irritation in the area and quiet the nerve symptoms. He further testified that, in some cases, one injection can quiet the symptoms so that the patient does not need any further treatment.

         Dr. Murphy's notes from the next visit on January 8, 2013 indicate that plaintiff delayed the epidural steroid injection because he had the flu. Dr. Murphy also noted that he prescribed plaintiff Norco for pain and Ambien for sleep. In February 2013, plaintiff indicated he could not set the appointment for the injection because his wife needed major surgery. Dr. Murphy's notes from October 8, 2013 indicate that plaintiff's wife finally had the surgery and plaintiff would try to obtain an appointment for the injection. Over the next several months, plaintiff scheduled and cancelled several injection appointments.

         Almost two years after Dr. Murphy's initial recommendation and almost 11 months after his wife's surgery, plaintiff obtained a cervical epidural steroid injection on August 27, 2014, from Dr. Charles N. April. Though plaintiff testified at trial that the injection provided no relief, Dr. Murphy's notes from his September 23, 2014 visit with plaintiff indicate otherwise:

He finally had the injections. The headaches have been less severe and there is less arm numbness. He still has radiation of pain into the arm. He should see about having a 2nd set of shots. New prescriptions were written. He will return for routine follow-up.

         According to Dr. Murphy's notes, plaintiff waited almost another eight months to obtain the second injection and reported that it aggravated rather than helped his symptoms for a period of time. On June 2, 2015, Dr. Murphy noted that plaintiff needed to start to decrease his medication since he does not want to consider other treatment options. Plaintiff continued to see Dr. Murphy until the end of ...

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