Lejeune v. Cook

563 So. 2d 1218, 1990 WL 88895
CourtLouisiana Court of Appeal
DecidedJune 26, 1990
Docket89 CA 0600
StatusPublished
Cited by4 cases

This text of 563 So. 2d 1218 (Lejeune v. Cook) 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
Lejeune v. Cook, 563 So. 2d 1218, 1990 WL 88895 (La. Ct. App. 1990).

Opinion

563 So.2d 1218 (1990)

Randolph C. LEJEUNE, III and Rebecca Lejeune
v.
William D. COOK and State Farm Mutual Automobile Insurance Company.

No. 89 CA 0600.

Court of Appeal of Louisiana, First Circuit.

June 26, 1990.

*1219 Sumpter B. Davis, III, Baton Rouge, for Randolph C. Lejeune, III and Rebecca Lejeune.

Carey Guglielmo, Baton Rouge, for William D. Cook and State Farm Mut. Auto Ins.

Before COVINGTON, C.J., and WATKINS and DOHERTY, JJ.

DOHERTY, Judge.[*]

Randolph C. Lejeune, III and Rebecca Lejeune (plaintiffs) brought suit against William D. Cook and State Farm Mutual Automobile Insurance Company (defendants) for damages resulting from an automobile accident in which Randolph Lejeune's 1986 Nissan pickup truck was rear-ended by a vehicle being driven by defendant Cook's minor daughter. Randolph Lejeune was alone in the vehicle when the accident occurred on October 9, 1986. When his vehicle was struck, it was pushed thirty or forty feet down the road; his head hit the rear window of the truck and knocked the window loose. Major property damage was sustained to the truck. Randolph's shoulders, neck, head, and jaw were sore, and from the time of the accident he experienced headaches daily and a ringing in his ears perhaps once a week. He was eventually treated for temporomandibular joint syndrome (TMJ). It is this injury for which Randolph Lejeune sought damages; his wife, Rebecca, sought damages for loss of consortium.

In written reasons for judgment, the trial court found as fact that the accident was the sole fault of State Farm's insured; that Randolph suffered from TMJ syndrome directly resulting from the accident; and that policy limits of 100,000/300,000 were applicable to the accident. The judgment awarded $3,600.00 in past, present and future medical expenses, and $12,500.00 in general damages to Randolph Lejeune, and gave no award to Rebecca Lejeune for loss of consortium. Plaintiffs have appealed, assigning as error the following:

(1) that the trial court erred in not awarding past and future medical expenses in the sum of $16,350.00;

(2) that the trial court's award of $12,500 in general damages to Randolph Lejeune was grossly inadequate;

(3) that the trial court's failure to award damages for loss of consortium to Rebecca Lejeune was in error.

ASSIGNMENT OF ERROR # 1

The crux of this assignment of error is the vast discrepancy between the testimony of Dr. Roger E. Peak, Randolph's treating dentist, and Dr. Robert D. Westerman, a dentist retained by State Farm for evaluation purposes who saw Randolph on two occasions. Dr. Peak testified that, in addition to the $2,100 he charged up to the time of trial for splint therapy and a panograph, work in the amount of $14,250 would be necessary to properly treat Randolph's TMJ syndrome. On the other hand, Dr. Westerman's assessment both of the treatment needed and its cost were radically different from that of Dr. Peak. Although Dr. Westerman agreed with Dr. Peak's treatment up to the date of trial, his *1220 plans for future treatment would involve necroabrasion, or grinding down of some of the teeth, rather than gnathological crowns as recommended by Dr. Peak; the total cost for treatment estimated by Dr. Westerman would be $850.00.

Randolph Lejeune testified that he began having headaches immediately after the accident of October 9, 1986 and he took some aspirin and went to bed. He worked the Monday following the Friday accident. His headaches continued and on November 7, 1986,[1] he went to see his family dentist, Dr. William Tuttle. Dr. Tuttle testified that he did not recall Randolph mentioning an automobile accident at that time, although there was a note on his chart of TMJ problems; the note was in his receptionist's handwriting. Randolph testified that since Dr. Tuttle was not helping him, he sought other medical advice and was eventually referred to Dr. Roger Peak. He saw Dr. Peak first on June 3, 1987.

Dr. Roger Peak is a general dentist with special training in TMJ treatment. Although TMJ syndrome is not a recognized specialty in dentistry, Dr. Peak testified that at least fifty percent of his practice was of TMJ patients, and he has focused on TMJ treatment since 1978. Dr. Peak testified that TMJ is not a dental but a medical problem. The mechanism of the temporomandibular joint is a combination of the head of the condyle and the meniscus. The condyle is the ball and socket joint at the upper end of the lower jaw. When the tendons which hold together the meniscus (a tissue between the head of the condyle and the skull) are torn or dislocated, the meniscus changes its position, and the head of the condyle is likewise displaced. This displacement changes, in turn, the way that the tops of the teeth meet.

Dr. Peak testified that Randolph had typical symptoms of TMJ, including recurring headaches, cervical pain, clicking joint, visual disturbances, and pain on palpitation of the TM joint. He believed that the syndrome was caused by the accident because the symptoms started immediately after the accident.

Dr. Peak's initial treatment was the contraction and insertion of a plastic splint into Randolph's mouth, which was designed both to eliminate the symptoms and to serve as a diagnostic tool to indicate placement of the jaw for the final treatment. By October 5, 1987, Randolph was symptom-free. The controversy arises with the proposed subsequent treatment: Dr. Peak planned to totally rebuild Randolph's teeth by creating nineteen special crowns which would result in a perfect bite and which would give him "some degree of permanency in his comfort." Without this additional work, Dr. Peak testified Randolph's symptoms would return with even greater intensity.

Dr. Robert Westerman, a dentist who practices both general dentistry and who sees from three to five patients a day with TMJ problems, testified that State Farm referred Randolph to him and he saw him twice, first on April 25, 1988 and subsequently on July 20, 1988. When Dr. Westerman first saw Randolph, Randolph had considerable dental problems, including an abscessed tooth, numerous cavities, nine missing teeth, and gum problems. However, Dr. Westerman testified that he believed from the history Randolph gave him, the TMJ syndrome was related to the accident.

On April 25, Randolph was having difficulty opening his jaw normally, and there was a great deal of noise in the joint; an MRI was ordered, which indicated no abnormalities whatsoever. Dr. Westerman was surprised at the results of the MRI, but when he saw Randolph again on July 20, his examination was consistent with the MRI.

Dr. Westerman testified that he would have treated the TMJ problems initially by inserting a splint, for which he would have charged $600, plus $150 in X-rays. He *1221 would then perform necroabrasion to correct the bite and resolve the TMJ problems, for which he would have charged $100. He would gradually wean the patient off the splint, so that ultimately he would be wearing it for less and less time; however, it would probably be necessary to wear it at night. He did not believe further orthodontic work such as Dr. Peak recommended would be necessary to correct the TMJ problem.

The trial judge summarized Dr. Westerman's testimony as follows: "In other words, instead of putting on nineteen crowns, you're going to grind the four teeth that would allow the other nineteen to meet?" Dr. Westerman answered, "That's correct."

The trial court apparently believed that Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
563 So. 2d 1218, 1990 WL 88895, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lejeune-v-cook-lactapp-1990.