Alexander v. Tate

30 So. 3d 1122, 2009 La.App. 3 Cir. 844, 2010 La. App. LEXIS 154
CourtLouisiana Court of Appeal
DecidedFebruary 3, 2010
Docket09-844
StatusPublished
Cited by4 cases

This text of 30 So. 3d 1122 (Alexander v. Tate) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Alexander v. Tate, 30 So. 3d 1122, 2009 La.App. 3 Cir. 844, 2010 La. App. LEXIS 154 (La. Ct. App. 2010).

Opinion

DAVID E. CHATELAIN, Judge Pro Tempore. *

Bin this suit arising from a motor vehicle accident, the defendants appeal the trial court’s denial of their request to exercise a peremptory challenge to exclude a potential juror and allowing the plaintiff to introduce information concerning his settlement of a separate, unrelated motor vehicle accident claim. The defendants also appeal the amount the jury awarded for general damages and damages for loss of enjoyment of life. For the following reasons, we affirm.

FACTS

On August 3, 2005, Donald Alexander’s vehicle was hit broadside by a vehicle driven by Ira Tate when Mr. Tate failed to see Mr. Alexander’s vehicle as he approached the intersection of Louisiana Highway 85 and Hubertville Road in Iberia Parish. Mr. Alexander testified that he saw Mr. Tate’s vehicle stopping at the stop sign as he approached it and thought Mr. Tate was stopped. According to Mr. Alexander, Mr. Tate’s vehicle kept creeping forward, so he moved to the other lane of travel to avoid a collision and hit his brakes, but the vehicles collided anyway. Mr. Alexander sued Mr. Tate; Mr. Tate’s employer, the owner of the vehicle driven by him; and the insurer of Mr. Tate’s employer to recover damages he suffered as a result of the collision.

Mr. Alexander was forty-six years of age at the time of the accident. The Social Security Administration had declared him disabled due to a heart condition. After the accident, an ambulance transported him to the New Iberia Medical Center emergency room. He complained of abrasions to his right forehead and right elbow *1125 and pain on the left side of his neck and in his low back. The emergency room doctor prescribed Flexeril for muscle spasm and Voltaren for pain. X rays taken that day | .¿revealed degenerative changes in Mr. Alexander’s middle and low cervical spine. Thereafter, Mr. Alexander sought medical treatment for his injuries from Dr. Keith Mack, a general practitioner; Dr. Allen J. Johnston, an orthopedist; and Dr. Sandra Weitz, an anesthesiologist and pain management specialist.

Mr. Alexander first saw Dr. Mack six days after the accident. He complained of pain on the left side of his neck and his low back. He also had a small scratch on his forehead, which was healed, and skin abrasions on his right elbow. Dr. Mack instructed Mr. Alexander to continue taking the medication the emergency room doctor prescribed and also treated him with heat, massage, ultrasound, and electronic stimulation in his office. On September 2, 2005, Mr. Alexander’s neck was x-rayed again. The X rays were interpreted as evidencing cervical spasm and degenerative cervical discs. The medications and treatment Dr. Mack prescribed were not providing Mr. Alexander lasting relief, and Dr. Mack referred him to a physical therapist in his office.

Mr. Alexander returned to Dr. Mack on November 15, 2005, complaining that his neck and low back were not improving, the medications were not alleviating his pain, the physical therapy provided only temporary relief of his pain, he was having trouble sleeping, and he was stiff when he rose in the mornings. Dr. Mack prescribed a new anti-inflammatory medication and another muscle relaxer. He also suggested that Mr. Alexander get MRIs of his neck and back and a second opinion from an orthopedist. Mr. Alexander returned a month later; his complaints were the same. Dr. Mack suggested that he keep his previously-scheduled appointments for MRIs and a second opinion.

|sOn January 23, 2006, Mr. Alexander saw Dr. Mack again and reported that he felt much better and that he was essentially pain free. Dr. Mack discharged him and instructed him to return if needed. Approximately ten days later, Mr. Alexander returned, complaining of recurrent pain and stiffness in his neck and back. MRIs of his neck and low back were performed on March 3, 2006. The MRI of Mr. Alexander’s back revealed a paracen-tral disc herniation with an annular tear at L4-5, with spinal canal stenosis, facet ar-thropathy, ligamentous hypertrophy, and a right paracentral disc herniation at L5-S1. The MRI of his neck revealed a central disc herniation, resulting in borderline spinal canal stenosis and narrowing of the spinal canal at C6-7; ventral annular bulging at C5-6; and right paracentral annular bulging at C4-5. There was spur formation at C4-5 and C5-6. Thereafter, Drs. Johnston and Weitz treated him.

Mr. Alexander’s first visit with Dr. Johnston was March 17, 2006. He complained of neck and back pain and rated his pain as six out of ten in both areas. He denied numbness, tingling, and weakness in his arms but stated he had intermittent headaches and also complained of pain radiating down his right leg to his knee, which walking aggravated. Dr. Johnston prescribed new medications, a TENS unit to stimulate the muscles in his back, and home exercise. He also ordered a nerve conduction study which was conducted on April 28, 2006. The study revealed that Mr. Alexander had a pinched nerve or SI radiculopathy going into his left leg. Dr. Johnston testified that this finding was consistent with Mr. Alexander’s lumbar MRIs and that he thought the L5-S1 disc herniation could have caused the irritated nerve root.

*1126 |4On June 16, 2006, Mr. Alexander reported significant pain in his neck and back to Dr. Johnston. Dr. Johnston recommended that he see a spine specialist because his neck pain was worse than his back pain. On August 15, 2006, Dr. Johnston gave Mr. Alexander a steroid injection in his low back, which Mr. Alexander reported as providing him significant relief for his back pain and leg symptoms.

In July 2006, Mr. Alexander first saw Dr. Weitz. He complained of neck and low back pain; he stated that his neck pain radiated into his shoulder but the pain in his low back did not radiate. On November 16, 2006, Dr. Weitz injected an epidural steroid into Mr. Alexander’s cervical spine at C6-7. Two weeks later, Mr. Alexander reported that the injection had given him tremendous relief and had reduced his neck pain from seven to two on a scale of one to ten. In June 2007, Mr. Alexander had Dr. Weitz repeat the steroid injection, which Dr. Weitz testified was not unusual. Thereafter, Mr. Alexander reported that his neck pain was better and that he had more low back pain than neck pain at that time.

Dr. Weitz testified that more probably than not Mr. Alexander’s degenerative changes of facet arthropathy and ligamen-tous hypertrophy at L4-5 existed and were asymptomatic before the accident but were made symptomatic by the August 2005 accident. She also testified that she would expect his pain to wax and wane as Mr. Alexander complained his had.

Mr. Alexander returned to Dr. Johnston in late January 2007. He reported mild discomfort in his neck and back but felt he could return to his regular activities. Dr. Johnston assigned him a 10-12% permanent impairment rating and believed he could do light to medium duty work at that time. In October 2007, Mr. Alexander saw Dr. Johnston and stated that he was improved but that he was beginning to | r,experience more neck discomfort. Dr. Johnston refilled his medications and told him to return if he did not improve. On December 21, 2007, Dr. Johnston gave Mr. Alexander a second cervical steroid injection.

On March 3, 2008, Mr. Alexander was in another automobile accident, and he returned to Dr.

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30 So. 3d 1122, 2009 La.App. 3 Cir. 844, 2010 La. App. LEXIS 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alexander-v-tate-lactapp-2010.