Finkelstein v. Pena

538 So. 2d 1022, 1989 La. App. LEXIS 96, 1989 WL 4593
CourtLouisiana Court of Appeal
DecidedJanuary 18, 1989
DocketNo. 88-CA-555
StatusPublished
Cited by2 cases

This text of 538 So. 2d 1022 (Finkelstein v. Pena) 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
Finkelstein v. Pena, 538 So. 2d 1022, 1989 La. App. LEXIS 96, 1989 WL 4593 (La. Ct. App. 1989).

Opinion

WICKER, Judge.

This appeal arises from a suit for damages filed on behalf of Dr. Koleman Finkel-stein (Dr. Finkelstein) and Danica Thomas Finkelstein (Danica) against Velis Pena (Pena), Pena’s insurer Old Hickory Insurance Company (Hickory) and The Prudential Insurance Company (Prudential), Dr. Finkelstein’s uninsured/underinsured motorist insurer. After a jury trial, judgment was rendered in favor of Danica in the amount of $2,500.00 and Dr. Finkelstein in [1023]*1023the amount of $5,000.00 against Pena and Hickory. Judgment was also rendered in favor of Prudential and against Pena and Hickory on Prudential's reconventional demand in the amount of $1,022.00. In addition, all claims against Prudential were dismissed with prejudice. Pena and Hickory were further cast for costs, expert fees, and interest. Only Dr. Finkelstein and Da-nica appeal the judgment. We revise in part and as revised, affirm.

Dr. Finkelstein and his wife, Danica allege they suffered injuries in an automobile accident on January 13, 1985.

The jury found Pena to be 100% at fault and awarded damages. Plaintiffs/appellants have appealed the damage award by raising the following specifications of error:

1. The trial court erred in excluding as hearsay, evidence relating to Dr. Sobo-loff, and
2. The jury, after finding liability, erred in awarding the amount of damages.

In their first specification appellants assert that the trial court erred in excluding all testimony related to Dr. Soboloff s reports. Dr. Soboloff is now deceased. However, we find no objection in the record to such exclusion and no request for a proffer of the excluded testimony. In McLean v. Hunter, 495 So.2d 1298 (La.1986) the Louisiana Supreme Court held “[without a proffer, appellate courts have no way of ascertaining the nature of the excluded testimony.” Id. at 1305. We follow the holding in McLean and conclude that since appellants did not object or proffer the excluded testimony they are precluded from asserting the exclusion as error on appeal. La.C.C.P. art. 1636.

Dr. Finkelstein and Danica further complain that the jury abused its discretion in awarding general damages. Dr. Finkel-stein argues that the testimony reflects he suffered a neck injury of several months duration as well as a herniated disc. He contends that the disc problem will last five to seven years with continual occasional pain and stiffness thereafter. He complains the jury erred as this testimony was unrefuted.

Danica also complains of an abuse of discretion. She argues the jury failed to take into account the length and severity of problems associated with her injuries.

Only the plaintiffs/appellants introduced expert witnesses to testify regarding their injuries. The two experts were Dr. Russell Grunsten, an orthopedic surgeon, and Dr. Gary F. Carroll, a specialist in internal medicine and general practice.

DANICA:

Dr. Grunsten testified as follows regarding Danica's injuries: He first treated her on August 5, 1987 for injuries she sustained in the accident of January 13, 1985. Although she was not actually seen by him before 1987, she had been seen by other associates of his in the same office. Both Dr. Marcus and Dr. Soboloff had seen her previously.

He reviewed the records of Dr. Marcus and Dr. Soboloff, examined her and took a history in order to form an opinion. Dr. Marcus’s and Dr. Soboloff s reports clearly state she did have a neck injury. Dr. Sobo-loff last saw her September 5, 1986.

Danica related to Dr. Grunsten that she was a passenger in the right front seat of a slow moving vehicle when it was struck from the rear by another vehicle. She reported she had a bruise and soreness in the left elbow and that two or three days following the accident she saw Dr. Carroll. She related Dr. Carroll prescribed medication and ultrasound treatments.

She further stated that three weeks later she developed headaches, nausea and vomiting and was seen at Touro Infirmary’s emergency room. She wore a neck collar and continued ultrasound treatments for a total of six months.

One year before his examination of August 5, 1987 she reported that she became symptom-free of neck discomfort. The only headache she had during the prior one-year period she attributed to sinus and not to the accident. She gave no history of a second injury following the accident.

He stated:

[1024]*1024It is my opinion that this patient had apparently sustained contusions of the left elbow, a sprain of the neck region in association with the rear end automobile accident in January of 1985 ... the CT Scan revealed some minimum bulging of the disc in the lower back, and it’s about what we expect in an average person who’s 30 to 50 years of age ... we expect some bulging to be manifested. There was no evidence of disc herniation
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He felt she had a minor injury to the left elbow and a soft tissue injury of her neck as a result of the accident. He did not believe the minimal disc bulging to be a consequence of that accident. Although he found certain symptoms attributed to her lower back (e.g. urinary frequency) he had no explanation for these and disagreed with a neurologist who diagnosed her as having multiple sclerosis.

Therefore, according to Dr. Grunsten’s testimony, Danica did not become symptom-free of neck problems until August 5, 1986. Also, Dr. Soboloff last saw her September 5, 1986. Since the accident occurred on January 13, 1985 she was under the care of a physician for almost nineteen months following the accident before she became symptom-free of neck pain.

Dr. Carroll testified as follows: He first treated Danica on January 14, 1985. She described the accident and stated she was thrown forward and backward. She reported stiffness in the left elbow and pain in the left shoulder and left side of her lower back. On examination he noted tenderness in the neck and spasm on rotation.

He saw a contusion or bruise of the left elbow. She experienced pain in the area as well as spasms of the muscles. He further found tenderness in the back. His diagnosis at the time was “muscular ligamentous injuries involving the left trapezius and thoracic spine and a contusion of the left elbow.” He prescribed warm soaks at home, medication and therapy twice a week.

He saw her a total of eight times from January 14,1985 through January 17,1986. On January 25, 1985 there was no significant change in the physical examination. She started showing improvement on February 20, 1985 when he noted decreased tenderness and muscle spasm with a range of motion that was closer to normal.

On March 15, 1985 he found that the left elbow and back were negative on the physical exam. However, he found tenderness in the neck with pain and spasm on range of motion. Her examination was normal on April 26, 1985 although she still complained of stiffness and soreness. She continued to complain of intermittent pain and stiffness with her neck on May 81,1985 but reported no problems with the back or left elbow. On May 31, 1985 the examination was again negative.

On June 28, 1985 the exam was negative although she reported problems with her neck. At that time she was undergoing ultrasound treatments and using wet hot soaks at home.

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Cite This Page — Counsel Stack

Bluebook (online)
538 So. 2d 1022, 1989 La. App. LEXIS 96, 1989 WL 4593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/finkelstein-v-pena-lactapp-1989.