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Hunter v. Terrebone

Court of Appeals of Louisiana, Fifth Circuit

December 27, 2018

DALE ANTHONY HUNTER
v.
MICHAEL D. TERREBONE AND ANPAC LOUISIANA INSURANCE COMPANY

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 728-732, DIVISION "L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, DALE AND DIANNE HUNTER Jacqueline F. Maloney Erin A. Fisher

          COUNSEL FOR DEFENDANT/APPELLEE, MICHAEL D. TERREBONE & ANPAC LOUISIANA INSURANCE COMPANY James R. Nieset, Jr. Kristopher Michael Gould Jade E. Ennis

          Panel composed of Judges Robert A. Chaisson, Stephen J. Windhorst, and Hans J. Liljeberg

          STEPHEN J. WINDHORST JUDGE

         Appellant, Dale Anthony Hunter ("Mr. Hunter" or "plaintiff"), seeks review of the jury verdict, in his favor and against appellees, Michael Terrebonne ("Mr. Terrebonne") and ANPAC Louisiana Insurance Company ("ANPAC"), awarding him $35, 000.00 in general damages and $280.00 for past medical expenses. For the following reasons, we affirm the jury verdict.

         FACTS AND PROCEDURAL HISTORY

         On July 14, 2012, Mr. Hunter and Mr. Terrebonne played golf together with a foursome at the Avondale TPC Golf Course in Jefferson Parish, Louisiana. After making a bad shot, Mr. Terrebonne got upset and threw his golf club. The golf club flew through the air, sailed off to the left, and hit Mr. Hunter above his right knee on the front right portion of his thigh. Although Mr. Hunter initially fell to the ground in pain after the incident, he was able to finish playing the remaining fourteen holes of golf.

         Mr. Hunter filed suit against Mr. Terrebonne and his liability insurer, ANPAC, alleging that he sustained serious injuries to his "right leg, right thigh, right knee, right calf, right lower extremity and other serious injuries to his mind and body." Mr. Hunter sought damages for pain and suffering, medical expenses, loss of income, and loss of earning capacity. The case proceeded to trial.

         At trial, Mr. Hunter and his wife testified that the day after the incident, he was in severe pain, his entire leg was severely bruised, and that he could barely walk. Plaintiff, however, did not seek medical treatment until a few days after the trauma at an urgent care facility. The doctor at this facility told him he had suffered a trauma and suggested he have it examined by his regular doctor. About two weeks after the incident, on August 1, 2012, Mr. Hunter saw his regular doctor, Dr. Daniel Gallagher, an orthopedic surgeon.

         Prior to this incident, Dr. Gallagher had treated plaintiff since at least 2006 for left knee pain caused by chronic tendonitis and since 2009 for right knee pain caused by arthritis. Medical records indicate that in 2009, Mr. Hunter's right knee had signs of a degenerative meniscus, which means it was not in normal condition. Dr. Gallagher's deposition was introduced into evidence at trial.

         Dr. Gallagher testified that, on August 1, 2012, he found, based on his examination Mr. Hunter's right knee, that it was "basically the same" as during previous visits and that, although there was tenderness, there was no indication of a meniscus tear in the right knee at this visit. Medical records from this visit indicate Mr. Hunter had right knee pain, right thigh pain and swelling and ecchymosis in the right thigh. Dr. Gallagher testified that he thought Mr. Hunter's injury was "simply a contusion from being struck" and that this "was the cause of his thigh and knee pain."

         Soon after Mr. Hunter saw Dr. Gallagher, Hurricane Isaac struck the New Orleans area, and the evidence showed that Mr. Hunter had to prepare his home for the hurricane. According to medical records, after the hurricane, Mr. Hunter had an MRI and saw Dr. Gallagher again on September 10, 2012. At this visit, Mr. Hunter told Dr. Gallagher "he had increased pain and swelling in the right knee with hurricane activity." Plaintiff's first post-Isaac examination did reveal new findings, including more tenderness and a positive McMurray test, which is used to test for damage or tears to the meniscus. The MRI showed a ligament strain and a medial meniscus tear which had not been there before.

         As to whether the golf trauma aggravated or was related to the arthritis and the tear, Dr. Gallagher testified as follows: "It's hard to say. When you have a direct blow to the body, the body reacts to that. And what I would picture would be some sort of a twisting motion to the knee in reaction to being struck or trying to avoid being struck. That twisting motion could have been what caused the degenerative meniscus to finally tear and flare up and aggravate the preexisting arthritis as well." Dr. Gallagher also testified that the hurricane preparation activity could ...


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