Lewis v. State Farm Mutual Automobile Insurance Co.

927 So. 2d 546, 2006 La. App. LEXIS 660, 2006 WL 782750
CourtLouisiana Court of Appeal
DecidedMarch 28, 2006
DocketNo. 05-CA-807
StatusPublished
Cited by1 cases

This text of 927 So. 2d 546 (Lewis v. State Farm Mutual Automobile 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
Lewis v. State Farm Mutual Automobile Insurance Co., 927 So. 2d 546, 2006 La. App. LEXIS 660, 2006 WL 782750 (La. Ct. App. 2006).

Opinion

SUSAN M. CHEHARDY, Judge.

IgThis is a personal injury suit arising from an automobile accident. The plaintiff appeals a judgment, based on a jury verdict, that awarded him $400.00 for medical expenses, but awarded nothing for other elements of damage or costs. We affirm.

The parties stipulated to liability at the commencement of the trial, so the only issues for the jury were the damages sustained by the plaintiff. The jury found that as a result of the accident, the plaintiff suffered a neck injury, but no back injury. The jury awarded $400.00 for past medical expenses, but zero for general damages, past lost wages, future lost wages (diminished earning capacity), and future medical expenses. The trial court [548]*548adopted the verdict as the judgment of the court, adding “with each party to bear their own costs.”

The plaintiff filed a motion for a new trial and/or a judgment notwithstanding the verdict, which the trial court denied. The plaintiff also filed a motion to set expert witness fees, but the trial court never ruled on that motion.

On appeal the plaintiff raises the following assignments of error:

1. The jury erred in its failure to award general damages to the plaintiff, given the fact that they found liability against the defendants and found that the plaintiff had sustained objective and actual physical injuries as a result of the accident.
|s2. The presiding judge erred in failing to award court costs and expert witness fees to the plaintiff.

FACTS

The following facts were in the evidence the jury heard at trial. The plaintiff, Gregory Lewis, was a passenger in a Ford F-350 dually truck that was struck from the rear by a Toyota Tacoma truck on October 8, 2003. At the scene, the plaintiff told the driver of the Toyota, Warren Lewis, that he was initially unaware that an accident had occurred.1 Similarly, Lemuel Spears, driver of the Ford truck in which the plaintiff was riding, also was initially unaware there had been a collision.

At the scene the plaintiff denied being injured,. and did not request emergency medical care. None of the other three persons involved in the accident complained of injury at the scene or sought medical care.

State Trooper Eugene Narcisse, who investigated the accident, testified that the vehicle in which the plaintiff was riding had been pushed forward five feet. His police report indicated the driver of the following vehicle (Warren Lewis) said he was traveling 30 miles per hour at the time of the accident. The report also indicated that it was not raining and the roadway was not wet.

In contrast, the driver of the following vehicle, defendant Warren Lewis, testified that his speed was five miles per hour, at most ten, at the time of impact. His air bags did not deploy and he knew his speed because he looked at the speedometer. He also testified that his vehicle was not pushed forward and that he had not told the police officer the vehicle he struck was pushed forward. He said further that the roadway was wet at the time of impact because it had rained.

|4The plaintiff admitted that the vehicle in which he was riding did not sustain much damage. Photographs of both vehicles show little damage. The defendant’s truck, the Toyota, sustained some damage to the left front side; the Ford truck in which the plaintiff was riding, however, sustained only some scratches and paint streaks on its rear bumper.

On October 10, 2003, two days after the accident, the plaintiff saw Dr. Leia Fricke, a general practitioner who primarily treats patients for soft-tissue injuries, on referral by his attorney. Dr. Fricke had treated the plaintiff previously for back pain following a December 2001 slip-and-fall accident. She had last seen him in January 2002, at which time she considered his back still problematic and recommended he return for further treatment. However, he made no further visits to Dr. Fricke [549]*549until October 2003, when he complained of neck pain from the accident involved here.

At that time he told her his 2001 back injury had resolved. He complained of neck pain, which Dr. Frieke diagnosed as cervical sprain. Dr. Frieke saw and treatr ed the plaintiff nine times between October 10, 2003 and May 3, 2004. During that time, he never complained to her of back pain or back problems but only of neck pain.

The plaintiff saw Dr. Kenneth Vogel, a neurosurgeon, on June 1, 2004, with complaints of neck and right arm pain only. The plaintiff told Dr. Vogel he had been in good health until the accident involved here. Dr. Vogel determined that the plaintiffs post-accident MRI tests revealed cervical and lumbar abnormalities. He found the plaintiffs signs and symptoms to be causally related to this accident. He admitted, however, that he could not determine from the MRIs alone when the injuries occurred or whether the abnormalities were painful, but had to rely on the patient’s subjective statements.

| fiThe plaintiff told Dr. Vogel he first started suffering back pain three months after the October 2003 accident. On his first visit to Dr. Vogel, however, the plaintiff only complained of neck pain and did not mention back pain until his second visit. Dr. Vogel said the right arm pain was consistent with neural irritation in the neck and that the plaintiff had herniations at several levels in the cervical spine. Dr. Vogel opined that the plaintiff was unsuitable for employment, that he had reached his maximum benefit from physical therapy, and that he needed more aggressive treatment, including CT scan, myelogram, and surgery. The plaintiff did not return to Dr. Vogel after July 2004.

The plaintiff underwent an independent medical examination by Dr. Claude Williams, an orthopedist, on September 13, 2004. Dr. Williams determined that the plaintiffs MRI showed a herniated cervical disc. He testified that the plaintiff would need additional medical care and treatment in the form of a myelogram and CT scan, as well as possible surgery.

The plaintiffs post-accident MRIs showed disc pathology in both his back and his neck. However, all three doctors agreed that a positive MRI finding does not establish a causal link to a particular accident. Doctors Frieke and Vogel both testified initially that the neck injury findings were causally related to the accident in October 2003. Subsequently, however, Dr. Frieke admitted that if she had known of the plaintiffs prior history, which he had not disclosed to her, she might have found differently.

The plaintiff testified on direct examination that at the time of trial he was suffering severe, constant pain in his neck and back that had been ongoing since the 2003 accident. He admitted that he was having back problems prior to the 2003 accident, although he claimed. the back problems came and went and had existed for almost 20 years. He admitted that while in prison, he worked in fields Rand always had back problems. He also admitted undergoing a prior lumbar MRI in 2001. Nevertheless, he failed to advise Dr. Frieke of most of his prior back problems.

Further, he was impeached with records of his medical treatment at Charity Hospital, which showed that only six months after the accident, when he was seeking alcohol and drug rehabilitation at Charity, he said he had no pain and no ongoing pain.

In addition, the plaintiff lied at trial about his pre-accident injury history.

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Bluebook (online)
927 So. 2d 546, 2006 La. App. LEXIS 660, 2006 WL 782750, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-state-farm-mutual-automobile-insurance-co-lactapp-2006.