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McBride v. Lichtenstein

Court of Appeals of Louisiana, Fourth Circuit

December 5, 2018

ALVIN MCBRIDE, ET AL
v.
BRYAN LICHTENSTEIN, ET AL

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-10462, DIVISION "F-07" Honorable Christopher J. Bruno, Judge

          John William Redmann Edward Moreno Travis J. Causey, Jr. LAW OFFICE OF JOHN W. REDMANN, LLC COUNSEL FOR PLAINTIFFS/APPELLEES

          Timothy G. Schafer SCHAFER & SCHAFER, LLP COUNSEL FOR DEFENDANTS/APPELLANTS

          Court composed of Judge Daniel L. Dysart, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins

          DALE N. ATKINS JUDGE.

         Bryan Lichtenstein ("Lichtenstein") and his insurer, United Services Automobile Association (collectively "Appellants"), appeal the jury's verdict returned on February 16, 2017, which found Lichtenstein liable as the sole cause of a motor vehicle accident which occurred between Lichtenstein and Appellee, Alvin McBride ("McBride"). McBride and his granddaughter, Dynte Moore ("Moore" or collectively "Appellees") were injured in the accident. The jury awarded damages to McBride in the amount of $279, 000 for pain and suffering, $32, 956.36 for past medical expenses and $279, 000 for loss of enjoyment of life and, awarded Moore $32, 000 for pain and suffering, $50, 000 for loss of enjoyment of life, $50, 000 for permanent disfigurement and $15, 317.00 for past and future medical expenses. Appellants also appeal the trial court's May 17, 2017 judgment denying Appellants' Motion for Judgment Notwithstanding the Verdict ("JNOV") or, alternatively, for New Trial. Appellants do not contest the issue of liability on appeal, but do contest the jury's award of damages to both Appellants. McBride filed a cross-appeal, asserting that the trial court erred in failing to allow the admission of evidence in support of his claim for future medical expenses and in granting a directed verdict on the issue of future medical expenses, thus preventing the issue from being presented to the jury. For the following reasons, we amend the damage award to include an award of $10, 000 in future medical expenses for McBride and otherwise affirm the jury's verdict and award of damages.

         Testimony at Trial

         On December 3, 2012, at approximately 7:20 p.m., Lichtenstein was driving his Hyundai Genesis automobile through the intersection at Elysian Fields Avenue and North Claiborne Avenue in New Orleans. Lichtenstein's vehicle collided with a Mazda Protégé vehicle, driven by McBride, 80 years of age; McBride's two granddaughters, 18 year old Dynte Moore, a younger granddaughter, Kayla, and Kayla's friend were passengers in the Mazda.

         Officer Terrell Seiber ("Off. Seiber") was the investigating officer who arrived on the scene of the accident. He testified that Lichtenstein's vehicle had been traveling northbound on Elysian Fields Avenue in the middle lane approaching the intersection at North Claiborne Avenue and McBride's vehicle was traveling eastbound on North Claiborne Avenue in the right lane. Lichtenstein admitted to Off. Seiber that he had assumed he had a green light as he entered the intersection. Realizing that he, in fact, had a red light, he applied the brakes but nonetheless hit McBride's vehicle. According to Off. Seiber, McBride reported that he entered the intersection with a green light. Off. Seiber found that the traffic lights were functioning properly and did not notice anything that would obscure a driver's ability to see the traffic lights. McBride and Moore, who sustained a laceration to her forehead, were transported to the hospital for assessment of their injuries.

         Lichtenstein testified he was not familiar with the intersection and was getting directions from one of his passengers at the time of the accident. He stated that he did not see the traffic light because another vehicle was blocking his view. Lichtenstein estimated he was traveling at a rate of 35 miles per hour.

         McBride and Moore were treated at the emergency room ("ER") of Ochsner Medical Center. Dr. Ruth Foster ("Dr. Foster") was the emergency room physician who evaluated McBride. She testified that she found no significant trauma during her exam but explained that did not negate pain and injury. McBride had indicated that his pain level was a 7 out of a scale of 10 initially and Dr. Foster found his blood pressure was elevated. McBride complained at admission of left side pain, which she thought indicated possible kidney tenderness, which is normal after an accident when the driver is wearing a seat belt. McBride did not complain at that time about lower back pain. Dr. Foster ordered an EKG, chest x-rays and a CT scan of McBride's head and neck. The CT scan of the cervical spine revealed no acute fractures but did reveal moderate and varying degrees of spinal canal stenosis and a slight narrowing of the neural foramina which she attributed to a chronic condition rather than to the accident. An MRI was not ordered, although Dr. Foster indicated an MRI would be preferable to determine if a soft-tissue or disc injury was present. She also did not order an x-ray or CT of the lumbar area. Instead, she treated McBride for pain and sent him home with anti-inflammatory and pain medication. At discharge, he reported his pain to be a 3 on a scale of 10. Dr. Foster confirmed that if McBride already had a degenerative joint disease before the accident, he would be more vulnerable to injury as a result of the trauma he sustained. She also stressed that a victim of a car accident, particularly one McBride's age, could feel very different in the days or weeks after an initial emergency room evaluation. For this reason, she referred him to seek follow-up care with his primary care physician.

         Admitted medical records indicate that Moore was treated in the same ER but by Dr. Michael Freeto ("Dr. Freeto"). She complained of a headache and had a laceration on her forehead. The laceration, located on her left anterior forehead, was repaired after a subcutaneous injection of lidocaine was administered.[1] A CT scan of the cervical spine and another CT of the head revealed no acute abnormality. Moore was discharged with pain medication.

         Dr. Brian Ogden ("Dr. Ogden"), a radiologist at Ochsner Medical Center, testified that he reviewed the CT scans and chest x-ray of McBride and the CT scans of Moore. He similarly reported finding nothing acute to indicate recent trauma to either of them. With regard to McBride, he compared a CT scan performed by the Veterans Administration's Health Service ("V.A.") on March 23, 2012, with the CT scan performed on the night of the accident. He stated that both showed a mild retrolisthesis of the cervical spine at C4-C5, indicating a curvature that was pre-existing. The CT scans of Moore's head and cervical spine were normal. Similar to Dr. Foster's testimony, Dr. Ogden confirmed that CT images were limited in the ability to view soft tissue, discs, and ligaments. He also stated that a CT image done on the day of the accident would not predict what could happen to the spine as a result of the accident a year or two later. He opined that the "better imaging modalities for soft tissues and ligaments in the disc [and] in the spine would be the MRI." Additionally, Dr. Ogden indicated that sustaining a soft tissue injury could cause a pre-existing degenerative condition to accelerate.

         Medical records entered into evidence established that follow-up care was obtained by both McBride and Moore from Dr. DeAbate at New Orleans Health Care Center beginning in December 2012. Moore was initially treated for acute cephalgia (headache pain), acute thoracic and lumbar strain, acute anterior chest wall strain and acute cephalgia laceration and contusion. She received modality treatments consisting of moist heat, electromuscular stimulation, and ultrasound to the thoracic and lumbar area and was advised to continue on hydrocodone pain medication. Dr. DeAbate noted that Moore's medical problems were causally related to the motor vehicle accident of December 3, 2012, "with a reasonable degree of medical certainty." Moore continued to periodically receive modality treatments from Dr. DeAbate until she requested discharge in June 2013.

         McBride also was treated by Dr. DeAbate and complained of upper and lower back pain, right posterior leg pain, as well as neck pain. Dr. DeAbate's notes indicate that McBride revealed he had a previous accident in which he had sustained an injury to his lumbar region; McBride reported that it was treated and resolved. McBride was diagnosed with acute cervical strain, acute trapezius muscle strain, acute lumbar strain and acute right lower extremity strain. Dr. DeAbate noted that McBride's symptoms were "causally related to the motor vehicle accident of December 3, 2012, with a reasonable degree of medical certainty." After several follow-up visits with similar continuing complaints, an MRI was taken of McBride's cervical spine in May 2013, which indicated the following: probable muscle spasm; cervicothoracic scoliosis (curvature); prominent disc dehydration; moderate disc narrowing with a small right paracentral disc herniation at the C3-4; evidence of cervical spondylosis on the right C4-5; prominent disc narrowing with mild diffuse disc bulging at the C4-5 and C6-7; moderate disc narrowing at the C5-C6; and, evidence of mild diffuse disc bulging at T1-2 and T2-3. An MRI was also taken of the lumbar spine which showed prominent levoscoliosis (spine curvature); prominent dehydration of all included discs; moderate narrowing with mild diffuse disc bulging at T12-L1 and L1-2; prominent disc narrowing with mild diffuse disc bulging at L2-3 and L4-5; moderate chronic right lateral compression of L3 vertebral body; prominent disc narrowing with mild diffuse disc bulging at the L3-4; lumbar stenosis at L3-4, L4-5 and L5-S1; Grade I spondylosis (spine degeneration) of L4 on L5; evidence of lumbar spondylosis on the left L4-5; bilateral facet joint arthritis at L4-5 with left facet joint arthritis at L5-S1; and, a small subligamentous right paracentral disc herniation at L5-S. McBride requested to be discharged from Dr. DeAbate's care and was given a referral for a neurosurgeon for further evaluation in May 2013. He instead sought help from Dr. Hamsa, as did Moore.

         Dr. Rudolph Hamsa ("Dr. Hamsa"), McBride and Moore's primary treating physician and an expert in orthopedics with 45 years of experience, testified on Appellees' behalf. McBride's first visit to Dr. Hamsa was on July 11, 2013, during which McBride reported that he had been injured in a December 3, 2012 auto accident. Dr. Hamsa explained at trial that he had reviewed McBride's prior treatment records from the V.A. which, as of November 9, 2012 (the date closest in time to the accident), noted prior intermittent back pain related to arthritis inflammation in the back joints. McBride told Dr. Hamsa that his pre-existing condition had not bothered him in 2-3 months. Prior visits to the V.A. showed middle back area arthritis in joints with stenosis and Grade I "slippage" noted between L4-5 vertebrae and spondylolisthesis. Dr. Hamsa noted that people with the medical issues which McBride had prior to the accident can live normal lives, and just feel discomfort occasionally.

         Dr. Hamsa also acknowledged that he was not the first treating physician. He was aware that Dr. DeAbate had treated McBride for several months and had recommended that McBride see a neurosurgeon. Dr. Hamsa acknowledged Dr. DeAbate's recommendation, but stated that McBride chose to see him because he believes in conservative care before "endangering a patient" unnecessarily.

         Dr. Hamsa's own diagnosis of McBride at the first visit was as follows: cervical contusion (head)-stable; cervical spondylosis, arthritis in neck; cervical sprain with disk herniation at C3-4, bulges C4-5 and C6-7; lumbar arthrosis; arthritis to facet joints; lumbar sprain with herniated L5-S1 and traumatic bulges at L2-3 and L4-5; slight compression of L3 vertebral body; post-traumatic temporomandibular joint pain ("TMJ"); trigger point tenderness at C7; and back spasm. He concluded that McBride suffered from an aggravation/deterioration of a pre-existing condition. McBride's stooped walking was specifically attributed to degenerative joint and disc disease. Dr. Hamsa reviewed McBride's most recent MRI for the jury, performed January 30, 2017, and concluded that the spine had deteriorated since the accident. He testified there was increased disc protrusion, with "spinal fluid coming down" and being "pinched off, and now two levels rather than one of listhesis." He recommended, consistent with the recommendation of the independent medical examiner ("IME"), Dr. Everett Robert, Jr. ("Dr. Robert"), that McBride may be helped by surgical decompression above the L2-3, L3-4 and L4-5 levels. He noted, however, that McBride could lose bladder and bowel control if the S1 and S2 nerve roots were to become pinched.

         With regard to Moore, Dr. Hamsa initially diagnosed cervical discogenic sprain (C3 and C4-5); cranial contusion and laceration, stable; lumbar sprain with moderate ligament stretch at L4-5 and L5-S1 with listhesis and traumatic bulging. His report noted that the x-rays from the date of Moore's injury showed normal cranial and cervical views and that cervical spine injury was omitted in the listed impression from the emergency room. He stated that the ER may have been focused on Moore's head injury rather than her back. He further noted that an MRI done on May 9, 2013 showed splinting and rotation (spasm) with retrolisthesis of the L4 on L5 and L5 on S1 and traumatic bulges at both levels. He prescribed an anti-inflammatory medication for Moore. During follow-up visits, Moore complained of recurring headaches and neck and lumbar problems for which she was given anti-inflammatory medication.

         Dr. Robert, a neurosurgeon, also provided testimony, via video deposition. At Appellants' request, Dr. Robert evaluated McBride in October 2016. He reported that McBride's primary complaint was about lower back pain exacerbated by both sitting and standing. McBride also reported pain in his left lower extremity/leg extending to his buttock and down the back part of his knee. Dr. Robert noted that McBride denied experiencing any significant problems with his neck, arm, leg, and back prior to the accident. He stated that McBride did not volunteer any information about his prior treatment for lower back pain. However, he admitted he did not specifically ask McBride whether he had prior accidents, or whether he had received an earlier MRI or imaging. Dr. Robert reviewed the medical records of Dr. DeAbate and stated that by March 2013, it was reported that McBride had a full range of motion in his neck and no spasm; no adverse change was noted during subsequent examinations. Additionally, by May 2013, Dr. DeAbate noted that examination of McBride's lumbar spine revealed flexion at 95 degrees and extension limited to 30 degrees with no pain reported. Dr. Robert's own physical examination of McBride revealed no abnormalities in sensation, motor strength, reflexes, neurological function and no tenderness upon palpation. He noted a decreased range of motion in McBride's lumbar spine, and based upon MRI images taken on May 9, 2013, he stated that McBride had grade 1 spondylolisthesis (at L4-5 and L5-S1) with spinal stenosis, which, in his opinion, was a degenerative misalignment. Dr. Robert also reviewed a report, though not the actual images, from an earlier MRI done at the V.A. in March 2011, and he reported findings similar to those based on the MRI performed post-accident in May 2013. He also compared a report from an MRI performed on January 30, 2017 with the images done in May 2013 and found no significant changes.

         Dr. Robert was puzzled by Dr. Hamsa's report that there were two traumatic disc bulges in the neck, one at C3-4 and one in the low back at L5-S1; the only way a film could indicate trauma to the disc, he opined, was to show edema (swelling) and/or hemorrhage -which would usually show up at approximately 6-8 weeks post-accident. The images that Dr. Robert reviewed were of an MRI done on May 9, 2013, and it did not reveal any edema, swelling or hemorrhage. He opined that the impairment visible on the MRI is not something that happens in an "abrupt punctuated fashion," but rather through a graduation of symptoms over time, consistent with a longstanding problem. Dr. Robert's final diagnosis of McBride's condition was as follows: degenerative spondylolisthesis at the L4-5 level, causing spinal stenosis and neurogenic claudication (impingement or inflammation of the nerves of the spinal chord). He stated that he was of the opinion that McBride had low back problems before the accident. He found it "unlikely" though not "impossible" that McBride was asymptomatic before the accident. He stated that McBride's medical records, which he viewed after making his own diagnosis, corroborated his opinion.

         On cross-examination, Dr. Robert stated that McBride could benefit from a spinal decompression and a lumbar fusion surgery. He reported that McBride was very cooperative with him during the examination and did not seem as if he was exaggerating his symptoms or giving less than a full effort. He could not say exactly how long his examination of McBride took but indicated that his typical examination of patients takes about 30 minutes though he usually allocates 45 minutes of time per patient. Dr. Robert also conceded that an individual in a car accident with a pre-existing injury such as McBride's could possibly have that condition worsened. However, Dr. Robert found no material evidence, radiographically or neurologically, to suggest that McBride's condition had, in fact, worsened.

         Dynte Moore testified about her close relationship with her grandfather and how she believed, based on his activity level and behavior, he was in good physical health before the accident. She reported that McBride never complained about any back or neck problems, and never did she ever notice him limping or holding his back to indicate a problem. He was a "very active man" before the accident, but Moore described how he was increasingly reluctant to perform physical tasks after the accident.

         Moore was questioned about her treatment at the ER on the day of the accident and admitted she did not have neck pain when she was initially seen. Instead she reported pain in her middle and lower back. She also reported that she received a laceration to her forehead, which was sutured, and that her head injury caused her to experience dizziness. She reported receiving follow up care at New Orleans Health Care by Dr. DeAbate and later with Dr. Hamsa. She first saw Dr. Hamsa in July 2013 but soon left for Bard College in New York and could only schedule visits with Dr. Hamsa when she was home from school. Moore testified that she received a scholarship to play basketball in college, but found she could not play as well as she wanted to play after the accident. She stated that her ability to play had "shifted and changed" and that she was no longer as confident when playing due to her fear of getting hurt. Although she had attended an early college satellite program for Bard College and was able to do the work required, she testified that after the accident, it was difficult to focus and her concentration was no longer as good. Being unable to play basketball well and experiencing difficulty in her academics, she was "red shirted" from the basketball team and sat on the bench.

         Moore complained of back and neck discomfort, with the back pain being the worse of the two. Although she had never experienced headaches before the accident, she now reported frequent, recurring headaches, which she indicated were a 5 or 6 on a pain scale with 10 indicating a high degree of pain. She also complained of difficulty with concentration. She stated that her medical bills totaled $11, 817, and that she consulted with a plastic surgeon about surgery to minimize or improve the appearance of her forehead scar and was told it would cost an additional $3500. The plastic surgeon indicated surgery may help the scar's appearance, but he could not guarantee improvement. She testified that the area where the scar is located feels numb, but no longer hurts. She reported that she is more critical of her own self-image, particularly since the scar is on her face and visible, and she tries to avoid having her photograph taken. She stated that the scar is the first thing she notices when she looks in the mirror.

         In his testimony, McBride described how the other driver went through a red light before hitting his car and that his concern was for the young people who were traveling with him. McBride, born in 1932, is a military veteran who sustained frostbite in the service. He reported that he takes pain medication for the pain in his feet from the frostbite. His wife passed away in 2015 after 50 years of marriage; he has 9 children and "plenty of grandkids" with whom he is close. He described his life before the accident, claiming he was in "tip top" shape, regularly exercising, running, lifting weights, and working. He reported that he regularly lifted 40 pound dumbbells. Before Hurricane Katrina, McBride ran a seafood restaurant business for 40 years with only 6 missed days. After Katrina destroyed his business, he worked as a "house man" at the Hilton for five years. His work at the Hilton included janitorial work, cleaning, and lifting. Before the accident, he picked up his grandchildren after school every day and brought them to their other grandmother. He would then return to pick them up after he left work and would bring them home. At the time of the accident, he was living with his daughter, Alvina, while he was fixing his hurricane-damaged home. He helped his daughter with her children, did all of the grocery shopping, carried bags in from the car, and performed many other physical chores. He reported that he had a strong self-image and did not want others to see him stoop or as incapable of doing physical tasks. He conceded that he had problems with his back before the accident, which he attributed to "arthritis" but said the pain diminished by 90-95% after he was given an ESI (Epidural Steroid Injection). McBride indicated that, immediately after the accident he did not feel that he had many limitations, but as time passed, his condition got worse. He began using a walking stick, then a cane, and now uses a wheelchair due to his back pain. He reported that since the accident, he needs help getting in and out of the tub, he is no longer as involved in the community or with his grandkids' school, and he cannot attend church.

         McBride's daughter, Alvina McBride, testified much the same, noting her father worked as a porter at the Hilton (where she also worked as human resources director). She said her father did many physical tasks - and "did anything he was asked to do." Her father was a huge help to her with her children and at home and even in the year or two before the accident, she had noticed no decline in his health. After the accident, he no longer could go walking with her at the levee and could not drive the kids to school or help with the groceries. She described how her father must now use a urinal and that he ...


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