Landry v. Melancon

558 So. 2d 1143, 1989 WL 159251
CourtLouisiana Court of Appeal
DecidedDecember 19, 1989
Docket88CA1918
StatusPublished
Cited by9 cases

This text of 558 So. 2d 1143 (Landry v. Melancon) 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
Landry v. Melancon, 558 So. 2d 1143, 1989 WL 159251 (La. Ct. App. 1989).

Opinion

558 So.2d 1143 (1989)

Daryll LANDRY and Ramona Landry
v.
Paul U. MELANCON, et al.

No. 88CA1918.

Court of Appeal of Louisiana, First Circuit.

December 19, 1989.

*1144 Charles B. Plattsmier, Hunter and Plattsmier, Morgan City, for plaintiffs.

Dale H. Hayes, Morgan City, John Wilkes, Lafayette, Christopher E. Lawler, and John J. McGuckin, Jr., Metairie, for Paul U. Melancon and Prudential Property & Cas. Ins. Co.

Stephen M. Larussa, Houma, for Allstate Ins. Co.

Before COVINGTON, WATKINS and SHORTESS, JJ.

SHORTESS, Judge.

Daryll and Ramona Landry brought suit against Paul U. Melancon, Allstate Insurance Company, and Champion Insurance Company as a result of a rear-end collision in which Ramona Landry (plaintiff) was allegedly injured. Two months before trial plaintiff named Prudential Insurance Company as an additional defendant. Prudential had previously been third partied into the case by Melancon. Champion was dismissed by plaintiff and Allstate tendered its $100,000.00 policy limits into the registry of the court before trial.

*1145 The case proceeded to trial by jury against Melancon, Prudential and Allstate (defendants). Judgment was rendered in favor of plaintiff for $734,000.00 and in favor of Mr. Landry for $50,000.00 for loss of consortium. Defendants have appealed.

Liability was stipulated at trial by defendants, and they assigned as error the following: that the trial court erred in failing to grant a continuance; that it erred in excluding defendants' vocational rehabilitation expert; that it erred in admitting allegedly hearsay statements made by Dr. Charles R. Brent; and that the award to plaintiff and Mr. Landry is too high.

THE CONTINUANCE

On December 18, 1986, plaintiff and her husband were travelling in their pickup truck when they were struck in the rear by Melancon. Suit was filed against Melancon, Allstate and Champion on January 30, 1987. On March 12, 1987, plaintiff underwent surgery for the removal of three cervical discs and for a four-level fusion. On November 12, 1987, Melancon filed a third party demand against Prudential and his insurance agency, alleging that he had paid a premium for a $1,000,000.00 personal catastrophe insurance policy and that Prudential should provide coverage. Prudential denied coverage. It was not until April 25, 1988, that Prudential undertook Melancon's defense. On May 25, 1988, plaintiff filed her demand against Prudential. The case proceeded to trial on July 25, 1988, nineteen months after the accident.

Prudential does not argue that it was given inadequate time to prepare a defense by this sequence of events; rather, it seizes upon the May, 1988, consultation of a psychologist by plaintiff and the ensuing diagnosis of chronic pain syndrome as prejudicing its case. Succinctly, Prudential's position is that because plaintiff entered the Touro Pain Clinic in New Orleans the weekend following the trial, and because the diagnosis of chronic pain syndrome was made two months before trial, the trial was premature. We find, however, that plaintiff's chronic pain syndrome was merely a logical continuation of her condition throughout the course of treatment of the serious injury to her neck. In October 1987 her treating neurosurgeon, Dr. Donald Judice, in deposition testified that plaintiff would continue to have residual pain from the internal scarring resulting from a four-level fusion of the cervical spine he had performed in March. Although he was unable to say that she was a chronic pain patient because she had not yet reached maximum medical benefit, he believed that even with an excellent recovery she would continue to have residual pain.

Defendants argue that they were prejudiced because the jury saw plaintiff at her worst; shortly after the trial, she was to enter the Touro Pain Clinic, and Dr. Richard Morse, its director, testified at trial that she would receive training in pain management and could expect to become more functional after her treatment. However, we find no prejudice. Dr. Morse, Dr. Judice, and Dr. Aurich, the consulting psychologist who diagnosed chronic pain syndrome, all testified that plaintiff was an excellent candidate for a pain clinic and that she could expect good results from the Touro Pain Clinic. The jury heard from several witnesses that plaintiff would, in all probability, benefit greatly from that treatment. Therefore, defendants were not prejudiced; there was no question at trial that although nobody could guarantee plaintiff complete relief from her chronic pain, she could become more functional in her daily life by learning how to tolerate her pain.

Defendants cite Sparacello v. Andrews, 501 So.2d 269 (La.App. 1st Cir.1986) writ denied, 502 So.2d 103 (La.1987), for the proposition that a discretionary continuance under LSA-C.C.P. art. 1601 is subject to a balancing test by the trial court. The trial court must consider diligence, good faith, and reasonable grounds, balanced against the possibility of injustice resulting from a premature trial and the effect a continuance may have on the administration of justice. We find that there was no abuse of discretion here by the trial court in denying a continuance to defendants. The trial was not premature because of a worsening of plaintiff's condition; her condition *1146 remained constant up until trial. No prejudice resulted to defendants because they were able to cross-examine Dr. Aurich and Dr. Morse about the therapeutic effects of a pain clinic on plaintiff's chronic pain. See Ulmer v. Baton Rouge General Hospital, 361 So.2d 1238 (La.App. 1st Cir. 1978). We will not disturb the trial court's ruling.

EXCLUSION OF VOCATIONAL REHABILITATION EXPERT'S TESTIMONY

Defendants' next assignment of error concerns the trial court's refusal to allow Glenn Hebert, defendants' vocational rehabilitation expert, to testify at trial. The trial court's written reasons for ruling on this issue disclose that under LSA-C. C.P. art. 1425, defendants did not reveal the substance of facts to which Hebert was expected to testify in response to plaintiff's interrogatories of May 25, 1988. Although defendants revealed Hebert's name as a potential expert witness in their response to the interrogatories filed June 22, 1988, no mention was made of the substance of Hebert's facts, and a report was not provided to plaintiff until July 11, 1988. The trial judge suggested that Hebert's deposition be taken before he ruled on any prejudice to plaintiff, and that was done on July 11, 1988, one week before trial. In deposition, Hebert testified that the medical picture had changed completely from his initial market survey performed earlier; that since plaintiff was, according to Dr. Judice, incapable of performing any work at all outside the home, his earlier market survey which considered part time clerical work as possible sources of income for plaintiff was rendered invalid; that he believed there was sheltered employment available for plaintiff, but had not performed any market surveys to determine what jobs were actually available. The trial judge found that Hebert's testimony placed plaintiff in the position of having to hire an expert at the last minute to rebut this testimony, or alternatively of consenting to a continuance. Therefore, the trial judge found plaintiff would be prejudiced if he allowed Hebert to testify at trial.

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Cite This Page — Counsel Stack

Bluebook (online)
558 So. 2d 1143, 1989 WL 159251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/landry-v-melancon-lactapp-1989.