COREY COBENA AND DAJONIC SMITH NO. 21-CA-630
VERSUS FIFTH CIRCUIT
ACE AMERICAN INSURANCE COMPANY COURT OF APPEAL BFI WASTE SERVICES, LLC AND VINICIO ARDON STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 782-290, DIVISION "N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING
August 03, 2022
STEPHEN J. WINDHORST JUDGE
Panel composed of Judges Marc E. Johnson, Stephen J. Windhorst, and Hans J. Liljeberg
AMENDED, AND AFFIRMED AS AMENDED SJW MEJ HJL COUNSEL FOR PLAINTIFF/APPELLANT, CORY COBENA Erin A. Fisher Jacqueline F. Maloney
COUNSEL FOR DEFENDANT/APPELLEE, ACE AMERICAN INSURANCE COMPANY, BFI WASTE SERVICES, LLC AND VINICIO ARDON Francis H. Brown, III WINDHORST, J.
In this personal injury action, plaintiff/appellant, Cory Cobena, appeals the
trial court’s judgment awarding him $35,000.00 in general damages and $10,000.00
in past medical expenses for his soft tissue injuries and finding he did not suffer a
traumatic brain injury. For the following reasons, we amend the award for past
medical expenses to $14,806.14 and affirm in all other respects.
FACTS and PROCEDURAL HISTORY
This case involves an automobile accident that occurred on the afternoon of
June 28, 2017, in which Vinicio Ardon rear-ended Cobena. On April 3, 2018,
Cobena and one of his passengers, Dajonic Smith, filed suit against Ardon, Ardon’s
employer, BFI Waste Services, LLC, and BFI’s insurer, ACE American Insurance
Company, alleging Ardon’s negligence caused the accident. Plaintiffs claimed that
the accident caused them to suffer injuries to their entire bodies, mental anguish,
inconvenience, and aggravation as a result of the accident.
The accident occurred while plaintiffs were traveling west in the inside or left
lane of Highway 90. Ardon was traveling in same direction as plaintiffs in the
outside or right lane of Highway 90 and following an 18-wheeler truck. Because the
18-wheeler in front of Ardon slowed down to turn off the highway, Ardon switched
into the left lane to pass it. When he did so, Ardon rear-ended plaintiffs’ vehicle
which had slowed down to make a U-turn. After rear ending plaintiffs, Ardon
swerved off and hit an eighteen-wheeler.
A two-day trial in this matter commenced on April 5, 2021 regarding
Cobena’s claims. Cobena attempted to prove that he suffered a cervical herniation
and a lumbar herniation, a traumatic brain injury, and an injury to his left thumb.
Although Cobena presented substantial medical testimony and records regarding his
alleged injuries, Cobena’s credibility was severely questioned. The following was
revealed at trial.
21-CA-630 1 Ardon testified that, after the accident, he walked over to Cobena’s vehicle to
check on the occupants and observed that Cobena was conscious and was speaking
to the passengers in the vehicle. EMS transported Cobena and his passengers to
University Medical Center in an ambulance. EMS personnel noted that Cobena
denied losing consciousness during the accident. On the way to UMC, EMS
personnel administered to Cobena a Glasgow Coma Scale which is a test used to
evaluate a person’s level of consciousness and to test for a traumatic brain injury.
Cobena’s score on all four tests was normal.
At UMC, Cobena had a number of x-rays and CT scans done on his head,
lumbar spine, cervical spine, abdomen, pelvis, and chest. None of them revealed an
acute abnormality. The CT imaging showed that the cervical spine had degenerative
changes and a bulging disc but no acute abnormality. At UMC, Cobena also denied
hitting his head and any loss of consciousness. Cobena was discharged from UMC
emergency the same day as the accident without focal neurological deficits, evidence
of head trauma, or a TBI diagnosis.
At trial, Cobena presented substantial medical records and testimony from
several doctors regarding his injuries. While Cobena’s treating physicians related
his alleged injuries to the 2017 accident, it was clear from the evidence and testimony
that his treating physicians had substantially incomplete information regarding
Cobena’s medical history and activities in making their diagnoses. For example,
Cobena’s physicians were unaware that he had been injured in a previous accident
on December 11, 2015 or that he had previously suffered severe neck and back pain.
The physicians were also unaware that after the 2017 accident Cobena was operating
a holiday light business which required him to climb ladders onto roofs and hang
lights, an internet sales business, and an automobile repair shop. Cobena’s
physicians were also unaware that he engaged in boxing.
21-CA-630 2 On September 25, 2017, Dr. Peter Liechty, a neurosurgeon, first examined
Cobena. Cobena told Dr. Liechty that “he had no significant health issues or spine
history concerning either his cervical or lumbar spine” prior to the 2017 accident.
Cobena did not disclose to Dr. Liechty that he had been involved in a motor vehicle
accident in 2015, or that he suffered back injuries in that accident. Medical records
from 2015 and 2016 indicate that Cobena reported severe neck and back pain after
the 2015 accident.
On December 5, 2018, Dr. Troy Beaucoudray, a neurologist, examined
Cobena who reported experiencing headaches and neck and back pain. Dr.
Beaucoudray’s report indicates that Cobena was found to be in no acute distress and
well developed with moderate tenderness in the spine and an indication of spasms.
Cobena claimed no significant past medical history and only reported the 2017
accident to Dr. Beaucoudray. Surveillance photographs taken the day before this
appointment show that Cobena had been climbing on the roof of a house hanging
Christmas lights for three hours.
Dr. Najeeb Thomas, a neurosurgeon, reviewed Cobena’s MRI imaging taken
on July 27, 2017 and found no acute or traumatic findings. Dr. Paul Koenigsberg, a
neuroradiologist, also reviewed this imaging and noted degenerative disc disease
with no evidence of acute or traumatic injury.
Cobena underwent a neuropsychological evaluation from Dr. Roberta Bell, a
neuropsychologist, in early 2020 and claimed that he had a traumatic brain injury
due to the 2017 accident. Cobena reported issues with headaches, dizziness,
memory, forgetfulness, concentration, speech, language, motor coordination,
anxiety, and irritability. Cobena denied any issues or history of illness prior to the
accident. Dr. Bell’s April 2020 report states that Cobena had “difficulty providing
clear and accurate autobiographical information, including employment history”;
and that he provided vague information regarding his work history, and gave
21-CA-630 3 conflicting information. Medical records from 2016 indicate that Cobena regularly
complained of headaches, dizziness, fatigue, irritability, forgetfulness, loss of
memory, and light sensitivity, among other things.
On February 13, 2020, Dr. Chad Domangue, a neurologist and a psychiatrist,
first evaluated Cobena for headaches and neck and back pain. Cobena again denied
any prior medical conditions. At this evaluation, he claimed he lost consciousness
during the 2017 accident even though after the accident he had denied losing
consciousness or any head injury.
The defense also outlined numerous instances where Cobena either gave
conflicting testimony or false information at his depositions. For example, Cobena
denied ever being married until the defense presented documentation of his divorce.
Cobena responded inaccurately regarding the number of children he had until it was
finally revealed that he has three children. Cobena denied ever boxing but the
defense presented video impeachment evidence of him sparring with another boxer
with no physical limitations. Photographs and video of Cobena hitting a punching
bag with no physical limitations were admitted into evidence. In addition, during
his two depositions, Cobena denied the ability to recall information in response to
over 200 questions.
After a bench trial, the trial court found that Ardon caused the accident and
that the accident caused Cobena to suffer soft tissue injuries. The trial court awarded
Cobena $35,000 in general damages and $10,000 in past medical expenses. Based
on credibility issues with Cobena’s testimony, the trial court found Cobena did not
suffer any long term injuries to his cervical or lumbar spine or traumatic brain injury
as alleged.
LAW and ANALYSIS
Cobena asserts a number of issues related to the trial court’s finding that the
2017 accident only caused Cobena to suffer soft tissue injuries and not any long term
21-CA-630 4 injury or traumatic brain injury, as well as the damage award of $35,000 in general
damages and $10,000 in past medical expenses. Specifically, Cobena asserts that
the trial court erred in failing to find that he suffered a traumatic brain injury, cervical
and lumbar herniations, and a thumb fracture based on the medical expert testimony
at trial. Cobena also asserts the trial court erred in not awarding the full amount of
his past and future medical expenses and in awarding an abusively low amount of
general damages.
In a personal injury case, the plaintiff bears the burden of proving a causal
relationship between the injury sustained and the accident which caused the injury.
Stoll v. Allstate Ins. Co., 11-1006 (La. App. 5 Cir. 05/08/12), 95 So.3d 1089, 1095.
The test for determining the causal relationship between the accident and subsequent
injuries is whether the plaintiff proved through medical testimony that it is more
probable than not that the subsequent injuries were caused by the accident. Stoll, 95
So.3d at 1095, citing Powell v. Chabanais Concrete Pumping, Inc., 11-408 (La. App.
5 Cir. 12/28/11), 82 So.3d 548, 558; Mart v. Hill, 505 So.2d 1120, 1128 (La. 1987).
Whether an accident caused a person’s injuries is a question of fact that should not
be reversed on appeal absent manifest error. Martin v. East Jefferson General Hosp.,
582 So.2d 1272, 1276 (La. 1991).
In reviewing a trial court’s findings of fact, appellate courts employ a
“manifest error” or “clearly wrong” standard of review. Rosell v. ESCO, 549 So.2d
840, 844 (La. 1989); Arabie v. CITGO Petroleum, 10-2605 (La. 03/13/12), 89 So.3d
307, 312; Antill v. State Farm Insurance Co., 20-131 (La. App. 5 Cir. 12/02/20), 308
So.3d 388. An appellate court may not set aside a trier of fact’s finding in the
absence of manifest error. Rosell, supra. When there are two permissible views of
the evidence, the fact finder’s choice between them cannot be manifestly erroneous.
Rosell, supra; Stobart v. State, Through Department of Transportation and
Development, 617 So.2d 880, 883 (La. 1993).
21-CA-630 5 Reasonable evaluations of credibility and reasonable inferences of fact should
not be disturbed upon review, where conflict exists in the testimony. Hunter v.
Terrebone, 18-134 (La. App. 5 Cir. 12/27/18), 263 So.3d 993, 997, writ denied, 19-
144 (La. 3/18/19), 267 So.3d 90; Purvis v. Jefferson Par. Hosp. Serv., 16-434 (La.
App. 5 Cir. 12/21/16), 209 So.3d 363, 372-73. The fact finder evaluates
the credibility of both expert and lay witnesses to determine the most credible
evidence. Id.
The Alleged Traumatic Brain Injury
Cobena asserts the trial court erred in rejecting the expert testimony of his
treating physicians and the extensive medical records finding that he suffered a
traumatic brain injury related to the 2017 accident. He also asserts that the trial court
erred in not awarding him all past and future medical expenses related thereto. Based
on the record, we do not find the trial court’s conclusion that Cobena’s did not suffer
a traumatic brain injury as a result of the 2017 accident to be manifestly erroneous
or clearly wrong.
At the scene of the accident, Ardon observed that Cobena was conscious and
speaking with the passengers in his vehicle. In addition, Cobena denied any loss of
consciousness to EMS personnel and at the emergency room after the accident.
EMS personnel noted that there were no visible signs of trauma. In fact, EMS
administered four Glasgow Coma Scale tests to Cobena before arriving at the
emergency room, all which produced normal results.
Cobena underwent testing at the emergency room following the accident. No
abnormality was identified, and the emergency room records indicate that Cobena
had no neurological deficits or evidence of head trauma from the accident. Cobena
later reported to his doctors that he lost consciousness at the time of the accident but
post-accident records and witnesses clearly contradict this assertion. In addition,
medical records show that before the 2017 accident, Cobena claimed he suffered
21-CA-630 6 from headaches, dizziness, forgetfulness and other similar ailments, but denied any
prior issues to those physicians treating him after the 2017 accident.
Further, it is evident the trial court’s findings were based on credibility
determinations. The reasons for judgment specifically state “[b]ased on the
credibility issues with plaintiff Cory Cobena’s testimony coupled with the
surveillance of Cory Cobena, the Court finds that plaintiff Cory Cobena did not
suffer any long term injury resulting from the accident.” When the trial court’s
findings are based on determinations regarding the credibility of witnesses, the
manifest error standard demands great deference to the trier of fact’s findings; for
only the factfinder can be aware of the variations in demeanor and tone of voice that
bear so heavily on the listener’s understanding and belief in what is said. Mancuso
v. Poole, 03-119 (La. App. 5 Cir. 5/28/03), 848 So.2d 154, 161. Also, the weight to
be given to a treating physician’s opinions is largely dependent upon the physician’s
qualifications and the facts upon which his opinions are based. Lewis v. Ingles, 02-
121 (La. App. 5 Cir. 7/30/02), 823 So.2d 1033, 1038, writ denied, 02-2463 (La.
11/22/02), 829 So.2d 1052; Bates v. Willis, 613 So.2d 691 (La. App. 5th Cir. 1993).
The record supports a conclusion that Cobena concealed relevant facts and history
from his treating physicians.
Having reviewed the record before us and considering the credibility issues,
we cannot find that the trial court was manifestly erroneous in concluding that
Cobena did not suffer a traumatic brain injury from this accident. Thus, we also find
no error in the trial court’s refusal to award Cobena medical expenses or general
damages related to his alleged traumatic brain injury.
The Alleged Back Injuries
Cobena asserts the trial court erred in rejecting the expert testimony and
medical records of the treating physicians that he suffered a cervical herniation at
C5-6 and a lumbar herniation L4-5 requiring extensive medical treatment. He also
21-CA-630 7 asserts that the trial court erred in not awarding him all past and future medical
expenses related thereto.
As noted above, the weight to be given even to a treating physician’s opinions
is largely dependent upon the facts upon which his opinions are based. Lewis, supra.
Here, the record shows that Cobena’s treating physicians had incomplete and/or
inaccurate information regarding Cobena’s previous injuries and residual symptoms,
particularly his injuries from the 2015 accident. It was therefore within the trial
court’s vast discretion to reject the expert testimony of Cobena’s treating physicians.
Furthermore, CT imaging and x-rays taken at UMC identified no acute or traumatic
injury to the back. In reviewing x-rays and scans taken of Cobena, multiple
physicians found no acute abnormality and only degenerative disease issues.
Moreover, there was evidence presented showing Cobena working on
automobiles, climbing on roofs and hanging Christmas lights, and boxing without
any physical limitations after the 2017 accident. This evidence, if believed, shows
that significant information was withheld from Cobena’s treating physicians.
Considering the foregoing and the circumstances in this case, we find no
manifest error in the trial court’s determination that Cobena did not suffer any long
term cervical or lumbar injuries as a result of the 2017 accident. We also find no
error in the trial court’s refusal to award Cobena medical expenses or general
damages related to the alleged long term lumbar and cervical back injuries.
The Alleged Thumb Injury
Cobena asserts the trial court erred in concluding that the injury to his left
thumb was not caused by the 2017 accident. We disagree. There is no report of an
injury to Cobena’s left thumb after the accident at UMC. Cobena first reported his
left thumb injury to Dr. Domangue on February 13, 2020, and Dr. Domangue had
no idea when this injury first surfaced. Thus, we have no basis to conclude that the
trial court’s finding that Cobena did not suffer a thumb injury in the 2017 accident
21-CA-630 8 is manifestly erroneous, especially considering contradictory evidence tending to
show a lack of candor. Accordingly, we find no error in the trial court’s refusal to
award medical expenses or general damages for this alleged injury.
Cobena’s Medical Expenses Award
Cobena asserts the trial court erred in not awarding him all of his past medical
expenses. The trial court awarded Cobena $10,000 for medical expenses related to
his soft tissue injuries.
Special damages are those which have a “ready market value,” such that the
amount of the damages theoretically may be determined with relative certainty, and
include past and future medical expenses. Gaspard v. State Farm Bureau Cas. Ins.
Co., 13-0800 (La. App. 1 Cir. 9/24/14), 155 So.3d 24, 32. In a personal injury suit,
the plaintiff bears the burden of proving a causal connection between the accident and
the alleged injuries. Hunter, 263 So.3d at 997. The victim must establish that he
incurred past medical expenses in good faith as a result of his injury. Menard v.
Lafayette Ins. Co., 09-1869 (La. 3/16/10), 31 So.3d 996, 1006. When a plaintiff
alleges he has incurred medical expenses as a result of injuries suffered in an
accident and the treatment is supported by a bill, that evidence is sufficient evidence
to support an award for past medical expenses unless there is sufficient contradictory
evidence or reasonable suspicion that the bill is unrelated to the accident. Jackson
v. Drachenburg, 19-345 (La. App. 5 Cir. 1/8/20), 288 So.3d 289, 293.
Because past medical expenses are special damages that are generally
supported by medical bills submitted into evidence, the amount can typically be
determined with substantial certainty. Here, the trial court awarded Cobena $10,000
for medical expenses, which does not appear to be based on specific medical bills
presented at trial. According to the UMC invoice from the date of the accident
submitted into evidence, Cobena’s emergency room medical treatment from the date
of the accident amounted to $12,632.15. An invoice from West Jefferson Medical
21-CA-630 9 Center indicates that Cobena was charged $468.99 for the ambulance. In addition,
an invoice from Shoemaker Chiropractic for treatment on July 7, 2017 related to the
back pain amounts to $1,705.00. Based on these medical invoices, the record
supports a finding that Cobena incurred $14,806.14 in medical treatment related to
the 2017 accident. Because there are invoices which represent with mathematical
certainty the amount of past medical expenses Cobena incurred due to the accident,
we amend the judgment to award Cobena $14,806.14 for medical expenses.
Cobena’s General Damage Award
Cobena asserts the trial court’s award of $35,000 in general damages is
abusively low considering the injuries Cobena sustained.
The Supreme Court has recognized the great, even vast, discretion vested in
the trier of fact in determining general damages. Youn v. Maritime Overseas
Corp., 623 So.2d 1257 (La. 1993), cert. den. 510 U.S. 1114, 114 S.Ct. 1059, 127
L.Ed.2d 379 (1994). The assessment of the appropriate amount of general damages,
by a trial judge or jury, is a determination of fact, one entitled to great deference on
review. Hunter, 263 So.3d at 999. The role of the appellate court in reviewing
general damages is not to decide what it considers to be an appropriate award, but
rather to review the exercise of discretion by the trier of fact. Youn, 623 So.2d at
1261.
The initial inquiry, in reviewing an award of general damages, is whether the
trier of fact abused its discretion in assessing the amount of damages. Howard v.
Union Carbide Corporation, 09-2750 (La. 10/19/10), 50 So.3d 1251, 1256. Only
after a determination that the trier of fact abused its discretion is a resort to prior
awards appropriate, and then only for the purpose of determining the highest or
lowest point which is reasonably within that discretion. Howard, 50 So.3d at 1256;
Williams, 168 So.3d at 822; Youn, 623 So.2d at 1260.
21-CA-630 10 Having considered the extensive record in its entirety, we find that the trial
court’s general damage award is clearly not manifestly erroneous or clearly wrong,
but reflects its reasonable credibility choices and interpretations of the evidence.
Dr. Jeffrey Lewine’s Supplemental Expert Report
Cobena next asserts the trial court erred in not admitting Dr. Lewine’s
supplemental report. The trial court refused to admit this report because it was
submitted untimely under the scheduling order. La. C.C.P. art. 1551 provides the
trial court with great discretion in implementing pre-trial orders and ensuring that
the items of the pre-trial order are enforced. Moonan v. Louisiana Med. Mut. Ins.
Co., 16-113 (La. App. 5 Cir. 9/22/16), 202 So.3d 529, 533, writ denied, 16-2048 (La.
1/9/17), 214 So.3d 869. A party has a right to expect compliance with the pre-trial
order by the opposing party, and prepare for trial accordingly. When a party’s
attorney fails to obey a pre-trial order, the court, sua sponte or on the motion of a
party, may make such orders as are just, including an order prohibiting the
disobedient party from introducing designated matters into evidence. Id. Absent an
abuse of discretion, the trial court’s decision whether to admit or exclude evidence
upon objection on the grounds of failure to abide by the pre-trial order will be upheld.
Cobena offers no basis to indicate that the exclusion of this report was an abuse of
discretion, and the record does not support that conclusion. We therefore find no
error in the trial court’s exclusion of this report.
DECREE
For the reasons stated, the judgment is amended to increase the award of past
medical expenses to $14,806.14, and is affirmed in all other respects.
AMENDED, AND AFFIRMED AS AMENDED
21-CA-630 11 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON FREDERICKA H. WICKER INTERIM CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN S. BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
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21-CA-630 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE STEPHEN D. ENRIGHT, JR. (DISTRICT JUDGE) ERIN A. FISHER (APPELLANT) JACQUELINE F. MALONEY (APPELLANT) ANTHONY V. LANASA, JR. (APPELLEE) MARK GERARD TAUZIER (APPELLEE) MICHAEL K. MELUCCI (APPELLEE) JASON J. MARKEY (APPELLEE) LEO J. PALAZZO (APPELLEE) MARIO A. ARTEAGA, JR. (APPELLEE) ALEXANDER A. LAURICELLA CARL A. WOODS, III (APPELLEE) ERIN BRUCE SAUCIER (APPELLEE) (APPELLEE) FRANCIS H. BROWN, III (APPELLEE)
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