MARGARET CRAIN AND * NO. 2023-CA-0413 DAVID CRAIN * VERSUS COURT OF APPEAL * NATIONAL LIABILITY & FOURTH CIRCUIT FIRE INSURANCE COMPANY, * ORLEANS SHORING, LLC STATE OF LOUISIANA AND DEREK J. HOBBS *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-01280, DIVISION “I-14” Honorable Lori Jupiter, Judge ****** Judge Roland L. Belsome ****** (Court composed of Judge Roland L. Belsome, Judge Paula A. Brown, Judge Tiffany Gautier Chase) BROWN, J. CONCURS IN THE RESULT. CHASE, J. CONCURS IN THE RESULT.
Christian A. Shofstahl SHOFSTAHL LAW FIRM, LLC 1555 Girod Street Mandeville, LA 70448
Christopher P. Lawler PIACUN LAW 1340 Poydras Street Suite 2100 New Orleans, LA 70112
COUNSEL FOR PLAINTIFF/APPELLEE
Craig J. Canizaro Andre' Collins Gaudin BURGLASS & TANKERSLEY, LLC 5213 Airline Drive Metairie, LA 70001
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED NOVEMBER 21, 2023 RLB Defendants in this case seek reversal of a partial summary judgment holding
that a car crash in February, 2017 was the medical cause of plaintiff’s shoulder
injury. Defendants argue that the trial court had previously denied a partial motion
for summary judgment that asked the court to find that the crash caused plaintiff’s
neck and shoulder injuries. The motion for summary judgment that is the subject of
this appeal only seeks summary judgment regarding the shoulder injury and is
therefore distinguishable from the earlier motion. For the reasons that follow, we
affirm the trial court’s decision.
Fact summary.
Margaret Crain (“Crain”) filed suit in February 2018 seeking compensation
for injuries she alleges that she suffered in a car crash on February 18, 2017. The
injuries that are the subject of discussion in this appeal affect Crain’s neck and
shoulder. Crain was also involved in wrecks in 2013 and 2015. After the 2013
wreck, a chiropractor treated her for neck pain. She testified in deposition that the
neck pain resolved fairly quickly. She filed a lawsuit regarding the 2013 neck
injury and the suit settled without trial.
1 Crain also went to a chiropractor for treatment of neck pain after this (2017)
wreck. After 3 to 4 months of treatment, she found it necessary to see a
neurosurgeon. The neurosurgeon observed pathological reflexes during Crain’s
office visit and ordered a magnetic resonance image (“MRI”) as a diagnostic tool.
The MRI revealed spinal stenosis (narrowing of the spine), myelopathy
(compression of the spinal cord), and bruising of the spinal cord. The doctor
performed a discectomy and fusion at C5-6 and C6-7 on August 26, 2017.
In December 2017, Crain told a physician’s assistant that she was having
pain in her right shoulder. It was her first specific mention of the right shoulder
pain.1 She had complained of extensive upper body pain prior to her neck surgery.
Crain’s medical records with Cavanaugh & Raiford Chiropractic noted that her
right shoulder was “high” upon examination at the time of her initial visit. Her
chiropractor testified that this was an involuntary indication of right shoulder pain.
Crain had arthroscopic surgery on the shoulder on July 12, 2018. Dr. Herbert
Reiss Plauché, M.D., is a board-certified orthopedic surgeon who performed
arthroscopic surgery on Crain’s right shoulder. He testified in deposition that
Crain’s shoulder injury was more probably than not caused by the February 2017
automobile collision.
Against the opinion of plaintiff’s treating doctors, defendants argue that the
amount of time that passed between the car wreck and the report of shoulder pain
renders Crain’s claim less than credible. However, defendants introduced no
medical evidence to controvert the opinions of Crain’s treating physicians.
1 After her 2013 car wreck, Crain was treated for pain in her left shoulder. This case involves only the right shoulder.
2 Dr. Everett Robert,2 defendants’ expert doctor, executed an affidavit that
defendants submitted as an exhibit to their opposition to the motion for summary
judgment. The opinion solely addressed the surgery to Crain’s cervical spine. He
did not give any opinion regarding Crain’s shoulder pain.
Law and analysis.
On this motion for summary judgment, our review is de novo, using the
same criteria as the trial judge is bound to use in determining whether summary
judgment is appropriate, in the light most favorable to the nonmoving party.
Cutrone v. English Turn Property Owners Association, Inc., 2019-0896, p. 8 (La.
App. 4 Cir. 3/4/20), 293 So.3d 1209, 1215.
Law of the case doctrine.
Defendants’ primary argument is that the law of the case doctrine precludes
this partial summary judgment. As noted above, Crain had already filed a motion
for summary judgment asking the trial court to rule that the 2017 wreck was the
medical cause of Crain’s neck and shoulder injuries. The trial court denied that
motion. Crain applied to this court for a supervisory writ to overturn that
judgment. The writ was denied.3
Defendants contend that this motion for summary judgment seeks the same
relief based on the same evidence. Defendants argue that the law of the case rule
applies as defined by our court in Myers v. Nat'l Union Fire Ins. Co. of Louisiana,
2011-0751 (La. App. 4 Cir. 4/4/12)
2 Dr. Robert is a neurosurgeon who is board-certified by the American Board of Neurological
Surgery. 3 Crain v. National Liability and Fire Ins. Co., et al. Case No. 2022-C-0492 (La. App. 4 Cir.
7/25/2022).
3 (La. App. 4 Cir. 4/4/12) 90 So.3d 522, 526. Crain replies that law of the
case is merely suggestive, not dispositive of her motion. She cites Serou v. Touro
Infirmary, 2015-0747 (La. App. 4 Cir. 4/13/16), 191 So.3d 1090, 1095 in support
of her argument.
Law of the case is not as tight a doctrine as defendants argue. This court
defined law of the case as:
(a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate court rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case. Armstrong Airport Concessions v. K-Squared Rest., LLC, 2015- 0375, p. 7 (La. App. 4 Cir. 10/28/15), 178 So. 3d 1094, 1100. In Armstrong,4 the court also wrote that, “Applying the ‘law of the case’
doctrine to supervisory writs decisions is discretionary.” In Serou,5 the court held
that a second motion for summary judgment is permissible because denial of a
motion for summary judgment is interlocutory in nature, and therefore, not a final
judgment. Serou is particularly helpful because it was also a case in which
summary judgment was denied by the trial court and writs were refused. The Serou
court ultimately granted the motion for summary judgment when it was re-urged.
This court affirmed the trial court in that case.
Crain argues that law of the case should not apply in any event because the
two motions are not identical. According to Crain, the case is in a different posture
now than it was months earlier. All discovery is now complete and all experts
have been identified and issued their reports. Crain correctly observes that there is
no expert testimony contrary to the treating physicians’ testimony and no fact
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MARGARET CRAIN AND * NO. 2023-CA-0413 DAVID CRAIN * VERSUS COURT OF APPEAL * NATIONAL LIABILITY & FOURTH CIRCUIT FIRE INSURANCE COMPANY, * ORLEANS SHORING, LLC STATE OF LOUISIANA AND DEREK J. HOBBS *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-01280, DIVISION “I-14” Honorable Lori Jupiter, Judge ****** Judge Roland L. Belsome ****** (Court composed of Judge Roland L. Belsome, Judge Paula A. Brown, Judge Tiffany Gautier Chase) BROWN, J. CONCURS IN THE RESULT. CHASE, J. CONCURS IN THE RESULT.
Christian A. Shofstahl SHOFSTAHL LAW FIRM, LLC 1555 Girod Street Mandeville, LA 70448
Christopher P. Lawler PIACUN LAW 1340 Poydras Street Suite 2100 New Orleans, LA 70112
COUNSEL FOR PLAINTIFF/APPELLEE
Craig J. Canizaro Andre' Collins Gaudin BURGLASS & TANKERSLEY, LLC 5213 Airline Drive Metairie, LA 70001
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED NOVEMBER 21, 2023 RLB Defendants in this case seek reversal of a partial summary judgment holding
that a car crash in February, 2017 was the medical cause of plaintiff’s shoulder
injury. Defendants argue that the trial court had previously denied a partial motion
for summary judgment that asked the court to find that the crash caused plaintiff’s
neck and shoulder injuries. The motion for summary judgment that is the subject of
this appeal only seeks summary judgment regarding the shoulder injury and is
therefore distinguishable from the earlier motion. For the reasons that follow, we
affirm the trial court’s decision.
Fact summary.
Margaret Crain (“Crain”) filed suit in February 2018 seeking compensation
for injuries she alleges that she suffered in a car crash on February 18, 2017. The
injuries that are the subject of discussion in this appeal affect Crain’s neck and
shoulder. Crain was also involved in wrecks in 2013 and 2015. After the 2013
wreck, a chiropractor treated her for neck pain. She testified in deposition that the
neck pain resolved fairly quickly. She filed a lawsuit regarding the 2013 neck
injury and the suit settled without trial.
1 Crain also went to a chiropractor for treatment of neck pain after this (2017)
wreck. After 3 to 4 months of treatment, she found it necessary to see a
neurosurgeon. The neurosurgeon observed pathological reflexes during Crain’s
office visit and ordered a magnetic resonance image (“MRI”) as a diagnostic tool.
The MRI revealed spinal stenosis (narrowing of the spine), myelopathy
(compression of the spinal cord), and bruising of the spinal cord. The doctor
performed a discectomy and fusion at C5-6 and C6-7 on August 26, 2017.
In December 2017, Crain told a physician’s assistant that she was having
pain in her right shoulder. It was her first specific mention of the right shoulder
pain.1 She had complained of extensive upper body pain prior to her neck surgery.
Crain’s medical records with Cavanaugh & Raiford Chiropractic noted that her
right shoulder was “high” upon examination at the time of her initial visit. Her
chiropractor testified that this was an involuntary indication of right shoulder pain.
Crain had arthroscopic surgery on the shoulder on July 12, 2018. Dr. Herbert
Reiss Plauché, M.D., is a board-certified orthopedic surgeon who performed
arthroscopic surgery on Crain’s right shoulder. He testified in deposition that
Crain’s shoulder injury was more probably than not caused by the February 2017
automobile collision.
Against the opinion of plaintiff’s treating doctors, defendants argue that the
amount of time that passed between the car wreck and the report of shoulder pain
renders Crain’s claim less than credible. However, defendants introduced no
medical evidence to controvert the opinions of Crain’s treating physicians.
1 After her 2013 car wreck, Crain was treated for pain in her left shoulder. This case involves only the right shoulder.
2 Dr. Everett Robert,2 defendants’ expert doctor, executed an affidavit that
defendants submitted as an exhibit to their opposition to the motion for summary
judgment. The opinion solely addressed the surgery to Crain’s cervical spine. He
did not give any opinion regarding Crain’s shoulder pain.
Law and analysis.
On this motion for summary judgment, our review is de novo, using the
same criteria as the trial judge is bound to use in determining whether summary
judgment is appropriate, in the light most favorable to the nonmoving party.
Cutrone v. English Turn Property Owners Association, Inc., 2019-0896, p. 8 (La.
App. 4 Cir. 3/4/20), 293 So.3d 1209, 1215.
Law of the case doctrine.
Defendants’ primary argument is that the law of the case doctrine precludes
this partial summary judgment. As noted above, Crain had already filed a motion
for summary judgment asking the trial court to rule that the 2017 wreck was the
medical cause of Crain’s neck and shoulder injuries. The trial court denied that
motion. Crain applied to this court for a supervisory writ to overturn that
judgment. The writ was denied.3
Defendants contend that this motion for summary judgment seeks the same
relief based on the same evidence. Defendants argue that the law of the case rule
applies as defined by our court in Myers v. Nat'l Union Fire Ins. Co. of Louisiana,
2011-0751 (La. App. 4 Cir. 4/4/12)
2 Dr. Robert is a neurosurgeon who is board-certified by the American Board of Neurological
Surgery. 3 Crain v. National Liability and Fire Ins. Co., et al. Case No. 2022-C-0492 (La. App. 4 Cir.
7/25/2022).
3 (La. App. 4 Cir. 4/4/12) 90 So.3d 522, 526. Crain replies that law of the
case is merely suggestive, not dispositive of her motion. She cites Serou v. Touro
Infirmary, 2015-0747 (La. App. 4 Cir. 4/13/16), 191 So.3d 1090, 1095 in support
of her argument.
Law of the case is not as tight a doctrine as defendants argue. This court
defined law of the case as:
(a) the binding force of trial court rulings during later stages of the trial, (b) the conclusive effects of appellate court rulings at the trial on remand, and (c) the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case. Armstrong Airport Concessions v. K-Squared Rest., LLC, 2015- 0375, p. 7 (La. App. 4 Cir. 10/28/15), 178 So. 3d 1094, 1100. In Armstrong,4 the court also wrote that, “Applying the ‘law of the case’
doctrine to supervisory writs decisions is discretionary.” In Serou,5 the court held
that a second motion for summary judgment is permissible because denial of a
motion for summary judgment is interlocutory in nature, and therefore, not a final
judgment. Serou is particularly helpful because it was also a case in which
summary judgment was denied by the trial court and writs were refused. The Serou
court ultimately granted the motion for summary judgment when it was re-urged.
This court affirmed the trial court in that case.
Crain argues that law of the case should not apply in any event because the
two motions are not identical. According to Crain, the case is in a different posture
now than it was months earlier. All discovery is now complete and all experts
have been identified and issued their reports. Crain correctly observes that there is
no expert testimony contrary to the treating physicians’ testimony and no fact
witness that would tend to prove that Crain is untruthful in claiming that her 2013
4 Id. at p. 1100. 5 Serou at 191 So. 3d 1090, 1095.
4 shoulder injury was completely resolved before the 2017 car crash. Crain also
points out that the earlier motion for summary judgment sought a holding on both
the neck and shoulder injury. The current motion only relates to the shoulder
injury. Crain writes that this is significant because Dr. Robert contradicted the
opinions of Crain’s treating physicians.
We conclude that the law of the case doctrine does not preclude re-
examination of the facts and legal arguments of this motion for summary
judgment.
Housley presumption.
In Housley v. Cerise, 579 So.2d 973, 980 (La. 1991), the court set forth the
rule that an injury which manifests after an event and was not present before the
event is presumed to be caused by the event. In this case, Crain argues that her
shoulder was healthy before the wreck and caused her pain after the wreck.
Although ten months passed before she recognized that the pain was separate from
the pain caused by her neck injury, she argues that she is entitled to the
presumption. Crain argues that she had no complaints of right shoulder injury prior
to the 2017 wreck. She argues further (with the support of her treating physicians)
that the neck injury was so severe and painful that it “masked” the shoulder injury
for months. The masking, she argues, prevented her from detecting the shoulder
injury for the first ten months after the wreck.
Defendants argue that there is sufficient evidence for a finder of fact to
reasonably infer that the shoulder injury was the result of some intervening cause.
Defendants point to the testimony of Dr. Riess Plauché to support the intervening
cause argument. He opined, in deposition, that an event as minor as “pulling a lawn
mower handle” could cause the chronic issues he observed in Crain’s right
5 shoulder to become symptomatic. It is important to note that Crain suffered a torn
rotator cuff. Plauché’s testimony, in context, was that a torn rotator cuff that was
asymptomatic might later exhibit symptoms as a result of some seemingly minor
event. He did not testify that pulling a lawn mower handle could have torn the
rotator cuff.
In order for defendants to prevail on the intervening cause argument, a jury
would need to believe that: (a) Crain had a torn rotator cuff before the accident; (b)
that the tear caused no symptoms for ten months after the accident; and (c) that
something unrelated to the accident happened that made the tear painful in
December 2017. The jury would also need to conclude that Dr. Plauché was
incorrect in his opinion that the shoulder injury was more likely than not caused by
the car wreck that is the subject of this suit. Defendants presented no evidence to
the trial court that would support these suppositions. Because discovery is
complete, there is no basis upon which a jury could reach the conclusion that there
was such an intervening cause.
Conclusion.
We find no error in the judgment of the trial court. For this reason, as more
fully detailed above, we affirm the trial court’s judgment.
AFFIRMED.