Earls v. McDowell

960 So. 2d 242, 2007 WL 1427033
CourtLouisiana Court of Appeal
DecidedMay 15, 2007
Docket07-CA-17
StatusPublished
Cited by25 cases

This text of 960 So. 2d 242 (Earls v. McDowell) 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
Earls v. McDowell, 960 So. 2d 242, 2007 WL 1427033 (La. Ct. App. 2007).

Opinion

960 So.2d 242 (2007)

Arnese EARLS and Willie Earls as Natural Tutor of the Minor Child, Quomeshia Earls
v.
Darren W. McDOWELL and State Farm Mutual Automobile Insurance Company.

No. 07-CA-17.

Court of Appeal of Louisiana, Fifth Circuit.

May 15, 2007.

*245 Thomas E. Campbell, Jacqueline A. Campbell, Metairie, Louisiana, for Plaintiffs/Appellants.

Christopher P. Lawler, Donovan & Lawler, Metairie, Louisiana, for Defendants/Appellees.

Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and WALTER J. ROTHSCHILD.

THOMAS F. DALEY, Judge.

The plaintiffs have appealed the trial court judgment awarding limited medical expenses and general damages in this personal injury lawsuit. For the reasons that follow, we affirm the judgment as amended.

FACTS:

This appeal arises from an accident that occurred on August 9, 2003 when a vehicle driven by the defendant, Darren McDowell, struck the rear of a vehicle driven by the plaintiff, Arnese Earls. Mrs. Earls' daughter, Quomeshia Earls, was in the vehicle with her at the time of the accident. Both Earls sought treatment from a chiropractor, Dr. G.W. Gilmore, for soft tissue injuries. The Earls filed suit against Mr. McDowell and his insurer, Allstate Insurance Company (Allstate). The matter proceeded to trial.

At trial, Mrs. Earls testified that at the time of the accident she was driving a 2001 Dodge Caravan and was stopped at a red light on Loyola Drive at the intersection of 31st Street in Kenner. When the defendant's vehicle struck her van, she heard a big noise and her car moved a couple of feet. Mrs. Earls explained that she was knocked forward inside the vehicle. Pictures of the van she was driving at the time of the accident were introduced and she testified that prior to the accident the van was in "good condition." The pictures revealed damage to the rear tailgate of the van.

Mrs. Earls testified that her husband came to the accident scene and drove them home. When she got home she started to have headaches. She thought it would go away and she took Tylenol and went to bed. Mrs. Earls testified that in the morning she had pain from her neck all the way down her back. She went to the chiropractor the next morning. X-rays were taken and medication was given for the pain. Heat and massage treatments were administered for the pain. Mrs. Earls testified that she continued to visit the chiropractor for five months and was not having any further problems at the time of discharge.

On cross-examination, Mrs. Earls testified that Dr. Gilmore suggested she visit his office for treatment two or three days per week. The defense counsel pointed out gaps in her treatment ranging from one to two weeks in duration. Mrs. Earls explained that when she felt better she *246 "slacked up" on her treatments and thought the pain would go away. She also testified that Dr. Gilmore was on vacation during one of the gaps in treatment.

Quomeshia Earls testified that she was 14 years old at the time of the accident. She explained that as she and her mother were stopped at the red light, they heard a "big bang," which moved the van. She was "jerked" in the van and her neck and back were "bothering" her when she jerked. Quomeshia testified that later that day her back, lower back, and arm were hurting. She sought treatment from Dr. Gilmore who gave her massage and heat treatments. She denied any prior neck and back problems and stated the treatments by Dr. Gilmore helped her pain. She had no further difficulties after her discharge from Dr. Gilmore.

At trial medical reports by Dr. Gilmore for both Mrs. Earls and Quomeshia were admitted into evidence. The report states x-rays and a physical examination were performed and that Mrs. Earls sustained:

(1) acute severe cervical sprain and strain with concomitant paravertebral muscle spasm and attending suboccipital neuralgia (resulting in severe headaches);
(2) Acute severe lumbar sprain and strain with associated deep and superficial muscle spasm;
(3) Acute sprain and strain of the left writs;
(4) Multiple intersegmental vertebral spinal disrelationships (unspecified curvature of the spine).

The report states that specific manipulative procedures were performed and hydrotherapy and massage therapy were used as an adjunct to the manipulation. Dr. Gilmore further stated: "It is my opinion, based on the history as presented by the patient and the above noted examination findings, that the above noted injuries were sustained in the accident of August 09, 2003." The medical bill indicated Mrs. Earls visited Dr. Gilmore from August 11, 2003 until she was discharged on January 24, 2004 for a total of 21 times; the total bill was $1,566.00.

The report for Quomeshia states that a physical examination was performed and x-rays were taken. Quomeshia sustained the following injuries:

(1) Acute severe cervical sprain and strain with associated deep and superficial muscle spasm, myofascitis and radiculitis radiating the trajectory of the right brachial plexes;
(2) Acute moderate lumbar sprain and strain;
(3) Acute sprain and strain of the right arm;
(4) These sprains and strains are accompanied by ligamentous instability, myofascitis and localized evidence of nerve root irritation.

Treatments consisting of spinal manipulation, hydrotherapy, and massage therapy were rendered to Qyomishia starting August 11, 2003 and ending January 24, 2004, for a total of 16 visits. Her total bill was $1,225.00. The report states: "It is my opinion, based on the history as presented by the patient and the above noted examination findings, that the above noted injuries were sustained in the accident of August 09, 2003."

At the conclusion of trial, the judge took the matter under advisement. Two days later he rendered judgment awarding Mrs. Earls special and general damages in the amount of $601.00 and special damages to Quomeshia in the amount of $200.00. This timely appeal followed.

LAW AND DISCUSSION:

On appeal, plaintiffs contend the trial court committed manifest error and quotes *247 from the reasons for judgment, which state:

On the witness stand, the court found neither Arnese or Quomeshia to be convincing about being injured or experiencing pain. There was no testimony as to treatment of the alleged wrist and arm injuries. The accident was minor, and this court finds that Arnese experienced only minor discomfort for a short period of time, and that Quomeshia was not injured at all. In fact, Quomeshia repeatedly hesitated during testimony and seemed to be looking toward her mother for clues or prompting. While plaintiffs produced bills for massage and hydrotherapy, plaintiffs failed to bear their burden of proving that the majority of those treatments were related to an injury or necessitated by the accident. Notwithstanding, both plaintiffs were entitled to be X-rayed and examined for injuries after the accident.

Plaintiffs contend that the trial court ignored plaintiffs' uncontroverted testimony, which is supported by the medical reports of Dr. Gilmore. Plaintiffs contend the medical reports were stipulated to by the parties and, therefore, the court is bound by this evidence. The record reflects that when the reports were introduced, the trial judge asked "So, the stipulation is that those exhibits come into evidence?" Plaintiffs' counsel answered affirmatively.

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Cite This Page — Counsel Stack

Bluebook (online)
960 So. 2d 242, 2007 WL 1427033, Counsel Stack Legal Research, https://law.counselstack.com/opinion/earls-v-mcdowell-lactapp-2007.