Davis v. Foremost Dairies

58 So. 3d 977, 2011 La. App. LEXIS 201, 2011 WL 526461
CourtLouisiana Court of Appeal
DecidedFebruary 16, 2011
Docket45,835-CA
StatusPublished
Cited by12 cases

This text of 58 So. 3d 977 (Davis v. Foremost Dairies) 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
Davis v. Foremost Dairies, 58 So. 3d 977, 2011 La. App. LEXIS 201, 2011 WL 526461 (La. Ct. App. 2011).

Opinion

CARAWAY, J.

|,After a bench trial, the plaintiff was awarded $2,654,249.99 in this personal injury action for damages for a whiplash-like injury she sustained to her cervical spine when a dairy truck struck the front passenger side of her vehicle. The dairy appeals urging that plaintiff did not relate the cause of her condition to the motor vehicle accident, prove that she was disabled, or show the necessity for certain future medical procedures which accounted for the largest amount of the damage award. For the following reasons, we affirm, amend and reverse in part the judgment of the trial court.

Facts

On the morning of April 11, 2005, the 24-year-old plaintiff, Kristin Davis, was traveling to an elementary school for her first day of professional block student teaching. Davis’s car was struck by a Foremost Dairy truck which ran a stop sign and struck the front passenger side of her Dodge Stratus. Davis’s vehicle sustained damage to the right front window, right mirror and two front tires. Some time after the impact, Da-vis realized that she “was having a headache” and “pain in [her] neck and shoulders.” After she went home to get cleaned up, Davis’s parents took her to the emergency room at Glen-wood Regional Medical Center in West Monroe, where she reported a headache and pain in her upper back and between her shoulder blades. At the time, Davis was diagnosed with neck strain by Dr. Edward Calvert and given a work excuse through April 18, 2005. She was prescribed pain medication.

Lin the four years between the accident and the time of trial in May of 2009, Davis sought the medical advice of numerous physicians and other medical personnel and made a large number of emergency room visits for complaints of pain. A detailed, chronological synopsis of her medi *982 cal history is contained in the unpublished addendum to this opinion.

In 2005, she saw chiropractor Greg Mayfield and family physicians Drs. David Hebert, Doyle Hamilton and Warren Daniel, for pain in her upper and lower back and headaches. Both Drs. Hebert and Hamilton expressed concern over Davis’s prescription drug use. 1 Davis also returned to the Glenwood emergency room two weeks after the accident with complaints of head and neck pain and made two visits to the St. Francis Medical Center emergency room in November and December of 2005, after falling down eight stairs and a fainting episode. In 2006, Davis reported to the St. Francis Medical Center emergency room eight times with complaints of neck and back pain.

Davis began seeing Dr. Doug Brown, an orthopedist, in January of 2006. Dr. Brown diagnosed Davis with a bulging disc at C6-7 after an MRI in January of 2006 and a myelogram and CT scan in June of 2006 which revealed the condition. During 2006, Davis also consistently saw Dr. Doyle Hamilton seeking pain medication for neck and back pain. Dr. Hamilton ultimately discontinued Davis as a patient in October of 2006 due to his concerns over her prescription drug use. Davis began physical therapy in February of 2006 but stopped by May of 2006.

Rln January of 2007, Davis reported to Dr. Brown that a school child had grabbed her by the neck, causing the onset of pain in the left arm and fingers. A second MRI was performed in January of 2007 and showed a progression of the degenera-five disc disease. Davis also continually saw Dr. Warren Daniel during 2007, and reported to the St. Francis emergency room two times with complaints of neck, arm and back pain. In March of 2007, she also saw neurosurgeon, Dr. Bernie McHugh, who referred her to pain specialist Dr. Vincent Forte. Davis began seeing Dr. Forte in April of 2007.

After undergoing various procedures, Dr. Forte ultimately diagnosed Davis with C6-7 nerve impingement and facet joint problems. The facet joints are joints located in the posterior part of the neck that frequently cause pain. According to the physicians, it was literally through the process of elimination, by diagnostic procedures, that both of these diagnoses were made.

Accordingly, during 2007, Davis received three steroid injections at C6-7, underwent a medial nerve block of the facet joint nerves, a discogram and a rhizotomy involving five facet joint nerves (C3,4,5,6 and 7). 2 In 2008, Davis underwent two more rhizotomy procedures. In 2009, Dr. Forte administered a trigger point injection 3 upon Davis and performed a fourth rhizotomy in May.

|4The diagnosis of Davis’s condition, which she asserted at trial, is described in the opinions of Dr. Doug Brown, an orthopedic surgeon, and Dr. Vincent Forte, the pain management specialist. As noted above, Dr. Brown diagnosed the disc bulge at C6-7 and Dr. Forte diagnosed Davis with C6-7 nerve impingement and facet joint pain.

*983 Davis’s work history after the accident was equally eventful. Davis was able to complete her college education and student teaching in November of 2005 and graduated in December of 2005. Davis took a permanent job with the Ouachita Parish School Board on January 5, 2006. By February 15, 2006, work records document that Davis applied for sick days through March 17, 2006, due to cervical pain. Although Davis requested unspecified sick leave on two days in October and November of 2006, she worked full-time through December of 2006. A 2006 federal tax return shows that Davis reported $24,586 in income for 2006.

After the child incident in January of 2007, Davis was granted extended leave from work from January 27 through May 24, 2007, the end of the school year. Davis did not return to teaching in the fall semester of 2007 or the spring semester of 2008. Her 2007 tax records show an income of $7,926. By the summer of 2008 after moving to Lafayette, Louisiana, Davis obtained a part-time job as a swim instructor at a rehabilitation center. In October of 2008, Davis secured a part-time administrative position at a private school in Lafayette where she continued to work through 2009. Documentation showed that Davis performed both administrative work at $12.50/hour and substitute teacher work at $45/day. A check stub dated IfiOctober 15-30, 2008, shows that Davis worked 56 hours at a rate of $12.50/hr. The 2008 tax records show that Davis earned $2,994 at the school and $1,060 at the rehabilitation clinic. Documentation showed that with a full-time administrative position at the private school, Davis would make approximately $25,000 a year.

On April 10, 2006, Davis filed suit against the truck driver, Johnny Richardson, Dean Foods, Foremost Dairies and Southern Foods Group, L.P., seeking damages for injuries she allegedly sustained in the accident. Defendants admitted liability and the case proceeded to a bench trial on the issue of causation and damages. The defense raised the issue of whether Davis exaggerated her symptoms due to a prescription drug addiction. Additionally, the defense claimed that intervening and/or superseding events caused Davis’s long-term injuries.

A two-day trial occurred in May of 2009. Live testimony included that of Kristin, her mother, a friend and an emergency room physician.

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Bluebook (online)
58 So. 3d 977, 2011 La. App. LEXIS 201, 2011 WL 526461, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-foremost-dairies-lactapp-2011.