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Giavotella v. Mitchell

Court of Appeals of Louisiana, First Circuit

October 24, 2019


          On Appeal from the Eighteenth Judicial District Court In and for the Parish of West Baton Rouge State of Louisiana Docket No. 42, 796 Honorable J. Kevin Kimball, Judge Presiding

          Kirk A. Guidry B. Scott Andrews Baton Rouge, Louisiana Attorneys for Appellant/Plaintiff Esther Redmann Giavotella

          John W. Redmann Edward L. Moreno Gretna, Louisiana David J. Calogero Lafayette, Louisiana Attorney for Appellees/Defendants Ryan Mitchell and The Travelers Indemnity Company


          PENZATO, J.

         Plaintiff, Esther Redmann Giavotella, appeals a judgment rendered in accordance with a jury verdict as well as a judgment granting the judgment notwithstanding the verdict filed by defendants, Ryan Mitchell and The Travelers Indemnity Company, and denying plaintiffs motion for judgment notwithstanding the verdict and alternative motions for new trial and/or additur, which partially amended the original judgment. Defendants have answered the appeal seeking to reduce the amount of damages awarded to plaintiff by the jury. For the reasons that follow, we affirm the judgments and deny the answer to plaintiffs appeal.


         Plaintiff originally filed this matter against defendants[1] following a rear-end multi-vehicle collision on I-10 in Baton Rouge, Louisiana, on April 8, 2015. On the date of the accident, she was driving a Toyota Camry and was hit by a GMC 2500 HD truck, which was driven by Mitchell. Immediately following the accident, plaintiff began experiencing a severe headache, and she visited an emergency room the next day with head, back, neck, and shoulder pain. Plaintiff subsequently treated with a chiropractor and an orthopedist, receiving conservative care, including medication. Dr. Jason Smith, an orthopedic surgeon, originally treated plaintiff on April 24, 2015, and ordered an MRI, which was performed on April 29, 2015. Dr. Smith testified that the MRI revealed a protruding disc at C5-6 and explained that the disc was not impinging on the spinal cord nor was it completely herniated. Dr. Smith recommended an epidural steroid injection (ESI), but did not recommend surgery at that time. Plaintiff also treated with Dr. Mohamed Elkersh, a pain management doctor, beginning May 6, 2015, for cervical radicular pain. Plaintiff was prescribed various medications by Dr. Elkersh, and she underwent an ESI on May 26, 2015. She also received trigger point injections, electro acupuncture treatment, and physical therapy.

         On November 30, 2015, plaintiff was involved in a subsequent rear-end collision while driving a van. The automobile that hit her was a small compact car, and her van required repairs of less than $1000.00. She returned to Dr. Elkersh, and underwent a second MRI on December 2, 2015, which evidenced a disc protrusion at C5-6. She received a second ESI on December 8, 2015, and a third MRI was performed on that date. Plaintiff testified that despite all the treatment she received, she was only ten percent improved prior to the November 30, 2015 accident. As she was still complaining after receiving conservative treatment, she was referred to a neurosurgeon.

         Plaintiff began treating with Dr. Donald Dietze, a neurosurgeon, on March 10, 2016, for complaints of neck pain. Dr. Dietze reviewed the prior medical records of plaintiff and performed an examination. He opined that plaintiff suffered a disc herniation from the April 8, 2015 accident, which did not completely resolve by the November 30, 2015 accident. On his first visit with plaintiff, Dr. Dietze discussed the option of surgery, as well as other treatment options. Because she had been living with symptoms for almost a year when he first saw her, Dr. Dietze determined that she was a surgical candidate at the first visit. Dr. Dietze attempted conservative treatment, and on April 18, 2016 and September 21, 2016, plaintiff underwent bilateral nerve root blocks at C5-6. She returned to Dr. Elkersh on October 19, 2016, and received an additional trigger point injection and more medication. On December 8, 2016, plaintiff underwent a C5-6 cervical discectomy and artificial disc replacement performed by Dr. Dietze. At the time of plaintiffs surgery, the artificial disc replacement was a relatively new type of joint replacement. Plaintiff experienced complications and had to stay in the intensive care unit for approximately five days.

         On October 30, 2017, the trial court granted plaintiffs motion for partial summary judgment on liability against Mitchell for causing the April 8, 2015 accident. Thereafter, the matter proceeded to a jury trial on March 12, 2018, on the issues of causation and damages, specifically whether the December 8, 2016 surgery was caused by the April 8, 2015 accident or the subsequent November 30, 2015 accident, and the amount of damages resulting from the April 8, 2015 accident.

         Dr. Dietze testified at the trial that the April 8, 2015 accident definitely, rather than more probably than not, caused plaintiff to undergo the December 8, 2016 surgery. Dr. Dietze stated that plaintiff had no changes in her clinical exam or in the pathology shown on the MRI following the November 30, 2015 accident. Dr. Shelly Savant, an expert in the fields of neurology, psychology, and life care planning, presented a life care plan for plaintiff (Savant life care plan), indicating that based upon her injuries, plaintiff would have a total future lifetime cost of $2, 498, 243.05.

         Dr. Everett Robert, Jr., an expert in the field of neurosurgery, testified on behalf of defendants. Defendants retained Dr. Robert to perform an independent medical examination (IME) of plaintiff on November 18, 2016, prior to her surgery on December 8, 2016. On the same date the IME took place, Dr. Robert issued a report pursuant to La. C.C.P. art. 1465.[2] Dr. Robert issued an addendum to his report on December 31, 2016, and a third report on September 5, 2017, explaining his comparison of the three available MRIs. Plaintiff asserts that none of the three reports issued by Dr. Robert mentions the life span of an artificial disc or plaintiffs need for future medical care or lack thereof.

         Dr. Robert agreed that plaintiff was suffering from a herniated C5-6 disc and was a candidate for surgery. However, it was his opinion that prior to the November 30, 2015 accident, plaintiffs symptoms were being managed conservatively. Therefore, Dr. Robert did not agree that plaintiff was a surgical candidate regardless of the November 30, 2015 accident. He testified that plaintiff was a surgical candidate because her symptoms worsened after the November 30, 2015 accident when conservative measures no longer worked. Dr. Robert testified that the two December 2015 MRIs revealed a worsening of the C5-6 disc after the November 30, 2015 accident, which was the cause of her worsening symptoms and the cervical surgery. Dr. Robert testified that there was no indication that an artificial disc would need replacement in thirty years, as was contained in the Savant life care plan. He also testified that plaintiff would not need any durable medical equipment in the future such as a wheelchair or walker. He further opined that plaintiff would not need other future care, such as a nutritional consultant, an occupational therapy evaluation, or physical therapy. Dr. Robert did not agree that plaintiff needed all the medications listed in the Savant life care plan.

         Plaintiff objected to portions of Dr. Robert's testimony as being outside of his report and outside his area of expertise. She claimed that Dr. Robert, as a neurosurgeon, should not have been permitted to testify as to her future medical needs, or lack thereof, and the fact that he would so testify was never disclosed in his reports written pursuant to La. C.C.P. art. 1465. Plaintiff further argued that Dr. Robert had not seen her since November 18, 2016, when he conducted the IME and had not considered any information, records, or depositions regarding her post- surgical progress. Stanford McNabb, an expert in vocational rehabilitation and life care planning, submitted a life care plan (McNabb life care plan) on behalf of defendants that indicated that plaintiffs future medical needs were $10, 578.00. Mr. McNabb testified that Dr. Robert provided the foundation for the recommendations contained in the life care plan submitted by the defendants.

         The jury determined that plaintiff was injured as a result of the April 8, 2015 automobile accident. The jury awarded plaintiff $200, 000.00 for past medical expenses (which was more than plaintiff had requested) and $12, 000.00 for future medical expenses, along with other damages for a total of $500, 000.00. The trial court signed a judgment in conformity with the jury verdict on March 28, 2018. Defendants filed a motion for judgment notwithstanding the verdict, claiming that the past medical expenses should be reduced to $108, 090.84, the amount proven by plaintiff. On July 11, 2018, the trial court granted the JNOV, reducing the past medical expenses to $108, 090.84 and the entire judgment amount to $408, 090.84. In this same judgment, the trial court denied plaintiffs motion for JNOV and alternative motions for new trial and/or additur, which sought an increase in the awards for future medical expenses, future pain and suffering, and future loss of enjoyment of life pursuant to La. C.C.P. arts. 1811(F) and 1814. Plaintiff appeals the March 28, 2018 judgment and the July 11, 2018 judgment.[3]


         Plaintiff claims that the trial court erred in allowing Dr. Robert to testify regarding future medical needs, asserting that his testimony was new expert medical opinion not properly disclosed to plaintiff, was outside Dr. Robert's area of medical expertise, lacked any competent basis or foundation, and interdicted the jury verdict. Plaintiff also claims that the jury erred in awarding her only $12, 000.00 for future medical expenses.


         The appellate court's review of factual findings is governed by the manifest error/clearly wrong standard. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court; and 2) whether the record further establishes that the finding is not manifestly erroneous. Rideau v. State Farm Mut. Auto. Ins. Co., 2006-0894 (La.App. 1st Cir. 8/29/07), 970 So.2d 564, 571, writ denied, 2007-2228 (La. 1/11/08), 972 So.2d 1168. Thus, if there is no reasonable factual basis in the record for the trial court's finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a trial court's factual finding only if, after reviewing the record in its entirety, it determines the trial court's finding was clearly wrong. Rideau, 970 So.2d at 571.

         A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. When such a prejudicial error of law skews the trial court's finding as to issues of material fact, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Rideau, 970 So.2d at 571.

         Plaintiff claims that the trial court committed evidentiary errors that interdicted the fact-finding process by admitting new expert medical testimony regarding future medicals that was not properly disclosed to her, was outside Dr. Robert's area of medical expertise, and that lacked any competent basis or foundation. If evidentiary errors interdict the fact-finding process, this court must conduct a de novo review. Therefore, because a finding of an evidentiary error may affect the standard of review we should apply, we will address the alleged evidentiary error first in this appeal. See Wright v. Bennett, 2004-1944 (La.App. 1st Cir. 9/28/05), 924 So.2d 178, 182. We note, however, that in regard to the plaintiffs allegations of error as to whether the trial court improperly admitted certain evidence, the trial court is granted broad discretion in these rulings and its determinations will not be disturbed on appeal absent a clear abuse of that discretion. Wright, 924 So.2d at 183, (citing Turner v. Ostrowe, 2001-1935 (La.App. 1st Cir. 9/27/02), 828 So.2d 1212, 1216, writ denied, 2002-2940 (La. 2/7/03), 836 So.2d 107).

         Also at issue is the July 11, 2018 judgment denying plaintiffs motion for JNOV and alternative motion for new trial and/or additur. Louisiana Code of Civil Procedure article 1811 provides that a party may move for a JNOV and that a motion for new trial may be joined with the motion. A JNOV can be granted only when the trial court finds that reasonable minds could not reach a contrary verdict. Adams v. Parish of East Baton Rouge, 2000-0424 (La.App. 1st Cir. 11/14/01), 804 So.2d 679, 687; Davis v. Wal-Mart Stores, Inc., 2000-0445 (La. 11/28/00), 774 So.2d 84, 89. The trial court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Adams, 804 So.2d at 687.

         In general, the standard of review of a JNOV on appeal is twofold. First, we must determine whether the jury verdict is supported by competent evidence and is not wholly unreasonable. If the verdict is supported by competent evidence and not wholly unreasonable, then the trial court may not set it aside. To make this determination, we must, after considering all of the evidence in the light most favorable to the party opposing the motion, find that it points so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict on the issue. Second, after determining that the trial court correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review. Daigle v. United States Fidelity and Guaranty Insurance Company, 94-0304 (La.App. 1st Cir. 5/5/95), 655 So.2d 431, 436.


         Admissibility of Dr. Robert's Testimony as to Future Medical Expenses Scope of Dr. Robert's Medical Report

         Plaintiff argues that Dr. Robert's opinions regarding future medical care went beyond the scope of his La. C.C.P. art. 1465 medical report, were new and inadmissible opinion testimony, and were not properly disclosed. Article 1465(A) requires a party causing an IME to be conducted to "deliver to [the opposing party] a copy of a detailed written report of the examining physician setting out his findings, including results of all tests made, diagnoses, and conclusions, together with like reports of all earlier examinations of the same condition." Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected. La. C.E. art. 103. Therefore, we must determine whether the trial court abused its discretion in allowing Dr. Robert's testimony regarding future medical care, and if so, whether the error was prejudicial to plaintiff.

         Plaintiff argues that she had no indication that at the trial Dr. Robert would provide new medical opinions that future replacement of the artificial disc was not warranted and that most of the other elements in the Savant life care plan were not derivative of either accident. Dr. Robert conducted an IME on November 18, 2016, almost a year after the November 30, 2015 accident, and issued a report on that date, concluding that plaintiff had a herniated disc at C5-6 and that she could be a candidate for a C5-6 anterior cervical discectomy and fusion. At the time he indicated that he had in his possession the April 29, 2015 MRI images, but only the reports from the December 2, 2015 and December 8, 2015 MRIs of plaintiff. Dr. Robert issued an addendum to his report on December 31, 2016, stating that he now had access to the two December 2015 MRI images, which he intended to review. On September 5, 2017, Dr. Robert issued a third report after comparing the two December 2015 MRI images with the April 29, 2015 MRI image. He determined that the December 2, 2015 MRI, performed a few days after the November 30, 2015 accident, revealed increased spinal stenosis and neuroforaminal stenosis when compared to the April 29, 2015 MRI. Dr. Robert noted that based ...

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