Ellsworth v. Allstate Insurance Co.

886 So. 2d 1175, 4 La.App. 5 Cir. 376, 2004 La. App. LEXIS 2513, 2004 WL 2387681
CourtLouisiana Court of Appeal
DecidedOctober 26, 2004
DocketNo. 04-CA-376
StatusPublished

This text of 886 So. 2d 1175 (Ellsworth v. Allstate Insurance Co.) 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
Ellsworth v. Allstate Insurance Co., 886 So. 2d 1175, 4 La.App. 5 Cir. 376, 2004 La. App. LEXIS 2513, 2004 WL 2387681 (La. Ct. App. 2004).

Opinion

| .MARION F. EDWARDS, Judge.

Plaintiff/appellee Cheryl Ellsworth filed suit in the Twenty-Fourth Judicial District Court against Robert Harrison and his insurer, Allstate Insurance Company, for injuries sustained in an accident on the Causeway Bridge on August 30, 2001. The petition alleged that Ms. Ellsworth was a passenger in a vehicle owned and operated by Mr. Farrell Porche, when Harrison swerved out of the left lane of travel into the right, colliding with the Porche vehicle. At the commencement of trial, Harrison was dismissed as a party, and Ellsworth stipulated that the monetary value of her damages would not exceed Fifty-Thousand Dollars. Trial proceeded against Allstate, at the conclusion of which the court found that Harrison was at fault. Allstate was found liable for general and special damages in an amount that would exceed the stipulation, and accordingly, limited the judgment to $50,000.00 plus interests and costs.

Allstate appeals only the quantum portion of the judgment dealing with injuries to Ellsworth’s knee.

Is At trial, Ellsworth testified that in the accident, she suffered a chipped tooth, scratched the front part of her eye, smashed her left knee into the dashboard, and her right shoulder hit the glass. She was taken by ambulance to East Jefferson Hospital’s emergency room. She was later treated for her knee and shoulder injury at Tulane University, with Dr. Michael Bruni. Thereafter, she began treatment with Dr. Raul Diaz, an orthopedic surgeon. Dr. Diaz recommended steroid injections for her shoulder and knee, but because of the side effects, Ellsworth did not want to have those injections. Dr. Diaz also recommended arthroscopic surgery, and while she did not really want surgery, she has decided to try it because her knee has gotten worse.

In connection with the accident, she also went to her dentist, Dr. Glen Schmidt, for her chipped tooth, although she has not gotten it fixed, and she still has a scar on her lip. Ellsworth also went to the Retinal Institute of Louisiana for the scratches on her cornea. She was formerly very active, and was a personal fitness coach and general manager at Salvation Studio. Because of her injuries, she is unable to train as she used to, and can only run for about five minutes without extreme pain. She now does different types of therapeutic exercise, such as yoga.

On cross-examination, counsel pointed out that in her deposition, Ellsworth had stated she had missed two months of work after the accident, while at trial she testified that she had missed work and taken off sometimes, but was not out during that entire period. She testified at trial that she left her employment because she was not able to use the facilities, and she had a conflict with the new manager. Further, she was living in Abita Springs and it was a difficult commute. She began selling real estate in August 2002.

Ellsworth testified at trial that her right shoulder has not improved, but rather has gotten worse. Defense counsel pointed out that she had previously stated in her deposition that after the accident, she had problems with both shoulders, but the 14pain in her right shoulder lasted about one month, while her left shoulder only hurts when she sleeps on it. Ellsworth responded that since the deposition, her shoulder has gotten worse. As for her knee, she testified that it was swollen at [1177]*1177the emergency room, where she was given ice to put on it. She could walk on it. Dr. Diaz ordered an MRI, telling her that her condition was something she had to live with for some time. Therefore, she did not return to him until four months after the MRI was taken.

Rusty Roussel, general manager at Salvation Studio, testified regarding Ells-worth’s wages at the time of the accident, referring to documents not introduced into evidence. Roussel testified that Ellsworth worked 14 hours the week of August 13-19; the week after the accident she worked 8 hours; and then she worked 31, 28/&, and 23]6 hour weeks in September. Ellsworth stipulated at trial that she worked more hours after the accident than just before, testifying later in rebuttal that she was paid for hours that she did not actually work. She also stated at that point that she was the only one who would stay and work with Roussel.

The deposition of Dr. Diaz, an orthopedist, was admitted into evidence. Dr. Diaz stated that Ellsworth’s initial complaints were limited to the right shoulder and left knee, which injuries she attributed to the accident. At that time, the physician believed that Ellsworth suffered from chon-dromalacia of the left knee and a bursitic condition of the right shoulder. He ordered an MRI and prescribed anti-inflammatory drugs. Later, Dr. Diaz believed she suffered an impingement on her right shoulder, and it is probably in about the same condition as it was in December, 2001, when he first saw her. However, he believed the shoulder problem could be cured with steroid injections.

Regarding her left knee, the doctor felt Ellsworth had suffered a traumatic contusion, probably the accident, leading her to develop chondromalacia. | ¡¿However, because she was physically active, she may have been more likely to develop that condition than some others. She needs a diagnostic arthroscopy to delineate the extent of the problem, and then an OATS procedure, a more aggressive surgery, to replace damaged cartilage. His fee for the arthroscopy would be between $5000.000 and $7000.00, and the hospital bills would run about $10,000.00. For the OATS procedure, his fee would be $6000.00-$7000.00, plus an assistant’s fee of about 25% of that amount. The hospital costs would be about $12,000.00-$13,000.00. Although on occasion her knee did not pain her as much as other times, the doctor felt that during the course of his treatment, her condition has not basically changed. Dr. Diaz opined that based on her history of having no knee complaints previous to the collision, he believed the accident to be the cause of her problems.

The deposition of Dr. Terry Habig, an orthopedic surgeon who examined Ells-worth for the defense, was also admitted. Dr. Habig examined her in September 2002, more than two years after the accident. She had crepitus in both knees, with the left knee somewhat worse. His interpretation of the MRI was that Ellsworth suffered from mild chondromalacia, and based on the history of the accident, it was probably caused by injury to the kneecap. This condition is sometimes helped by arthroscopic surgery, and whether or not to do surgery is a judgment call. Dr. Habig did not think an OATS procedure was necessary. Most people with chondro-malacia heal on their own, with physical therapy.

In granting judgment, the trial court found that the hospital records indicated that Ellsworth initially complained of arm and knee pain, injuries consistent with deployment of the air bags. She also went to her dentist because her mouth was bleeding, and to her eye doctor. The trial court discussed Ellsworth’s testimony regarding [1178]*1178her shoulder injuries, and found it to be not credible, holding that the most believable statements were made by Ellsworth at the emergency room. The | (¡court felt that her trial testimony regarding her lost wage claim and injury to her shoulder was completely changed from her earlier deposition, and that she contradicted herself. However, the court believed that an MRI of Ellsworth’s knee was consistent with the diagnosis of chondromalacia. The court gave more weight to the testimony of Dr. Diaz, Ellsworth’s treating physician, who recommended arthroscopic surgery.

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Bluebook (online)
886 So. 2d 1175, 4 La.App. 5 Cir. 376, 2004 La. App. LEXIS 2513, 2004 WL 2387681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellsworth-v-allstate-insurance-co-lactapp-2004.