JOHN MOSBEY, JR.
JEFFERSON PARISH SHERIFF'S OFFICE AND DALE BRUCE
APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH
OF JEFFERSON, STATE OF LOUISIANA NO. 721-363, DIVISION
"C" HONORABLE JUNE B. DARENSBURG, JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLANT, JOHN MOSBEY, JR. Darryl M.
COUNSEL FOR DEFENDANT/APPELLEE, JEFFERSON PARISH
SHERIFF'S OFFICE AND DALE BRUCE Edmund W. Golden, John A.
composed of Judges Jude G. Gravois, Robert A. Chaisson, and
Hans J. Liljeberg
J. LILJEBERG JUDGE.
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.
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
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).
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.
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.
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.
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.
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.He also testified that he can no longer
engage in his hobby of restoring and showing antique cars.
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."
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.
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."
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. 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.
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.
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.
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.
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.
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 ...