Iorio v. Grossie

663 So. 2d 366, 1995 WL 579740
CourtLouisiana Court of Appeal
DecidedOctober 4, 1995
Docket94-846
StatusPublished
Cited by15 cases

This text of 663 So. 2d 366 (Iorio v. Grossie) 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
Iorio v. Grossie, 663 So. 2d 366, 1995 WL 579740 (La. Ct. App. 1995).

Opinion

663 So.2d 366 (1995)

Cynthia IORIO and Angelo Iorio, Plaintiffs-Appellants,
v.
Tate GROSSIE, et al., Defendants-Appellees.

No. 94-846.

Court of Appeal of Louisiana, Third Circuit.

October 4, 1995.

*368 James Steven Gates, Opelousas, for Cynthia Iorio et vir.

John William Penny Jr., Lafayette, for Tate H. Grossie et al.

Marc Damon Moroux, Lafayette, for American Manufactures Mutual Insurance Co.

Before LABORDE,[*] THIBODEAUX, SAUNDERS, WOODARD and AMY, JJ.

WOODARD, Judge.

This appeal arises from an action to recover damages for injuries sustained in an automobile accident.

FACTS

On January 29, 1990, Cynthia Iorio was injured in an automobile accident caused by Tate Grossie. Subsequently, Ms. Iorio and her husband, Angelo Iorio, instituted the present personal injury lawsuit against Mr. Grossie, his insurer, and American Manufacturer's Mutual Insurance Company (AMMIC), Ms. Iorio's uninsured motorist insurance carrier. Mr. Grossie and his insurer settled out of court, and the Iorios continued to pursue their claim against AMMIC.

At trial on October 21-22, 1993, the parties' expert medical witnesses disagreed as to whether Ms. Iorio continued to suffer from injuries to her neck, back, wrist, and knee, and if so, whether they were caused by the accident. The jury rendered a verdict in favor of Ms. Iorio in the following amounts:

Past loss of wages ...........$  2,000
Future medical expenses ............ 0
Past medical expenses ..........16,600
Pain, suffering & disability
  (past, present, & future) .....8,500
TOTAL: .......................$ 27,100

The jury also awarded Mr. Iorio $500 for loss of consortium. The trial court then dismissed the Iorios' lawsuit because they recovered less than $47,000, the amount that AMMIC had previously advanced to them. The Iorios now appeal, asserting that they were awarded insufficient damages as a result of the trial court's failure to charge the jury properly.

LAW

I. ADEQUACY OF THE JURY INSTRUCTION

Ms. Iorio assigns as error the trial court's refusal to grant her timely request to instruct the jury that the testimony of a patient's treating physician should ordinarily be afforded more weight than that of an examining physician. Instead of giving the requested charge, the court stated:

You should consider each expert opinion received into evidence in this case and give it such weight as you may think it deserves. If you should decide that the opinion of an expert witness is not based upon sufficient education and experience, or if you should conclude that the reasons given in support of the opinion are not sound, or if you feel it is outweighed by the evidence, you may disregard the opinion entirely.

A trial court should give all requested instructions that correctly state the law, provided that they are material and relevant to the litigation. Lincecum v. Missouri Pacific R. Co., 452 So.2d 1182 (La.App. 1 Cir.), writ denied, 458 So.2d 476 (La.1984). Courts are not obligated to give the specific jury instructions submitted by the parties, Doyle v. Picadilly Cafeterias, 576 So.2d 1143 (La.App. 3 Cir.1991), but omission of a requested instruction containing an essential legal principal may constitute reversible error, Evangeline Farmers Co-op. v. Fontenot, 565 So.2d 1040 (La.App. 3 Cir.1990). A court has fulfilled its duty if its instructions fairly and reasonably point out the issues presented by the pleadings and evidence and provide the principles of law necessary to resolve those issues. Crooks v. National Union Fire Ins. Co., 620 So.2d 421 (La.App. 3 Cir.), writs denied, 629 So.2d 391, 392 (La.1993).

*369 An appellate court must exercise great restraint before overturning a jury verdict on the basis of erroneous instructions. Creel v. S.A. Tarver & Son Tractor Co., 537 So.2d 752 (La.App. 3 Cir.1988). Consequently, we will overturn the jury's verdict in the case sub judice on the basis of such an error only if the instructions, taken as a whole, were so incorrect or inadequate as to preclude the jury from reaching a verdict based on the relevant law and facts. Laborde v. Velsicol Chem. Corp., 474 So.2d 1320 (La. App. 3 Cir.1985), writ denied, 480 So.2d 738 (La.1986). Ultimately, the pertinent inquiry is whether the jury was misled to such an extent as to be prevented from doing justice. Creel, 537 So.2d 752.

Ms. Iorio's requested instruction is an accurate statement of the law. See Nugent v. Continental Casualty Co., 93-867 (La.App. 3 Cir.1994), 634 So.2d 406. This principle is material and relevant to the case because it is useful to the resolution of the disagreement between the parties' expert medical witnesses, upon which the outcome of the case hinges. Thus, the trial court erred in refusing to give the instruction. Instead, the trial court instructed the jury that they were free to assign as much weight to the testimony of AMMIC's examining physician as to that of the treating physicians, which not only fails to convey the principle of law that Ms. Iorio sought to introduce, but actually undermines it.

Moreover, it is apparent from the jury's verdict that they afforded far more weight than was appropriate to the testimony of AMMIC's examining physician, Dr. James McDaniel. Dr. McDaniel provided the only medical evidence contradicting the testimonies of Ms. Iorio and her treating physicians, which established the existence of her injuries and their causal relationship to the accident. He examined Ms. Iorio one time, two years after the accident, for 15-30 minutes and for the sole purpose of evaluating her to aid the defense. In reaching their verdict, although awarding some damages, the jury apparently discounted, not one but, all three of Ms. Iorio's long term treating physicians' testimonies regarding the severity, duration, and causation of her injuries in favor of Dr. McDaniel's testimony, despite the brevity of his examination and the fact that the treating physicians' opinions regarding her injuries were more time-relevant and substantiated by objective tests, such as the MRI and Phalen's, Tinel's, and pinwheel tests.

We are especially concerned about the jury's deference to Dr. McDaniel, in light of his obvious bias against litigants in general and personal injury plaintiffs with soft tissue injuries, in particular, such as those Ms. Iorio has suffered. Dr. McDaniel's editorial comments while testifying imply that only those who have their legs cut off or need back surgery, and the like, have legitimate injuries. Comments such as these, implying that soft tissue injuries are not legitimate injuries, indicate that Dr. McDaniel is predisposed to dismiss them or, perhaps, any injury short of amputation, as mere "bellyaching," or even deliberate falsification of symptoms. His expression of his views does not appear to be "of no moment," but rather entrenched and pervasive in his thinking and analysis, as he has displayed a pattern of such bias in other cases before this court:

This court is well aware of Dr. McDaniel's reputation for testimony that often crosses the border into advocacy. See, Chevalier v. L.H. Bossier, Inc., 617 So.2d 1278 (La. App. 3 Cir.1993). By his testimony in the record before us, we see it is a reputation well-deserved. Nugent, 634 So.2d 406; and, Dr. McDaniel's sweeping denouncement of pain clinics for the treatment of people like Mr.

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Bluebook (online)
663 So. 2d 366, 1995 WL 579740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/iorio-v-grossie-lactapp-1995.