Marshall v. Boydston

33 So. 3d 438, 9 La.App. 3 Cir. 1137, 2010 La. App. LEXIS 385, 2010 WL 933859
CourtLouisiana Court of Appeal
DecidedMarch 17, 2010
Docket09-1137
StatusPublished
Cited by7 cases

This text of 33 So. 3d 438 (Marshall v. Boydston) 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
Marshall v. Boydston, 33 So. 3d 438, 9 La.App. 3 Cir. 1137, 2010 La. App. LEXIS 385, 2010 WL 933859 (La. Ct. App. 2010).

Opinion

THIBODEAUX, Chief Judge.

| plaintiff, Alexander Marshall, asserts that the trial court erred in this vehicle accident case by allowing the defendant’s expert to testify on issues outside his area of expertise, in finding that Mr. Marshall sustained only soft tissue injuries and awarding damages accordingly, in failing to award all medical expenses, and in failing to award damages for Mr. Marshall’s lost wages. For the following reasons, we affirm the trial court’s judgment, except the award of medical expenses. Because we find that the trial court abused its discretion by denying expenses Mr. Marshall incurred for proper diagnostic procedures, we amend in part this trial court’s judgment and increase the award by $4,690.00 for a total of $17,648.67.

I.

ISSUES

We shall consider whether, in this motor vehicle accident case where the defendant stipulated his liability, the trial court erred by:

(1) allowing a medical doctor specializing in forensic pathology to testify as an expert in this case involving neurology;
(2) finding that the plaintiff sustained only soft tissue injuries and awarding damages accordingly;
(3) failing to award lost wages where the plaintiff did not specifically plead this claim in his petition but asked for any damages that can be proven at trial; and,
(4) failing to reimburse the plaintiffs magnetic resonance imaging (MRI) costs where a neurologist, to whom the plaintiffs primary treating physician referred the plaintiff, consulted these MRIs in diagnosing the plaintiff.

_is.n.

FACTS

On January 10, 2007, Mr. Marshall was involved in a motor vehicle accident with Mr. Nathan Boydston. Mr. Boydston stipulated his liability, and the trial court held a trial on the issues of causation and damages. Dr. Emile Laga, a forensic pathologist, testified as an expert witness for the defense. Mr. Marshall objected to Dr. Laga’s testimony because Dr. Laga was not an expert neurologist and would, therefore, testify outside of his area of expertise regarding Mr. Marshall’s injuries.

After Dr. Laga’s lengthy testimony regarding his education and experience, the trial court qualified Dr. Laga as an expert in forensic pathology, surgical pathology, autopsy pathology, clinical lab work, toxicology, and general medicine. The trial court then allowed Dr. Laga to testify.

Mr. Marshall introduced a deposition of Dr. John Sabow, a neurologist from South Dakota. Mr. Marshall also introduced his medical records that contained information regarding his accident injuries, their treatment, as well as his general state of health.

After a review of the evidence in the case, the trial court concluded that it was undisputed that Mr. Marshall suffered from Type II diabetes which was progressive and virtually uncontrolled. The trial court noted Dr. Laga’s testimony that this type of diabetes could affect heart, vision, kidneys, arteries, and retina functions. Based on a toxicology report, the trial court observed that Mr. Marshall’s kidneys were also in a bad condition. Relying on *442 Dr. Laga’s testimony, the trial court stated that Mr. Marshall’s medical records indicated that, consistent with his diabetes, he had neuropathy and small blood vessel disease in his legs and brain. Mr. Marshall |salso suffered from anemia, gastrointestinal tract problems, and hypertension. The trial court also mentioned medications Mr. Marshall was taking for his various medical conditions. Again, the trial court relied on Dr. Laga’s testimony that these medications produce adverse side effects, including drowsiness and dizziness.

After a lengthy examination of Dr. Sa-bow’s testimony, the trial court discounted it because: (1) Dr. Sabow never examined Mr. Marshall; (2) Mr. Marshall’s medical records did not correlate with Dr. Sabow’s findings and diagnoses; and, (3) the trial court concluded that Dr. Sabow relied on supposition, assumption, and inaccurate review of incomplete medical records.

The trial court found that, as a result of the accident, Mr. Marshall sustained soft tissue injuries that manifested themselves in headaches, shoulder pain, and low back and thigh pain. The trial court relied on Mr. Marshall’s medical records and testimony of Dr. Bryan Lebean who treated and reduced Mr. Marshall’s suffering from the soft tissue injuries. The trial court also held that because of Mr. Marshall’s age and his state of health, he was not able to recover quickly and completely after the accident. The trial court, thus, awarded Mr. Marshall $24,500.00 in general damages and $12,958.67 in medical expenses.

Mr. Marshall claims that the trial court improperly allowed Dr. Laga, who was not a neurologist, to testify in the case involving neurology. Mr. Marshall also claims that the trial court abused its discretion by . awarding only $24,500.00 in general damages. Mr. Marshall argues that his injuries included not only soft tissue injuries, but a closed head injury, a subdural hema-toma, and spine injuries for which the trial court did not compensate him. Mr. Marshall supports his claim for a subdural hematoma with his medical records that indicate its complete resolution two weeks after the accident. To establish causation of his spinal cord injuries, Mr. RMarshall relies on a letter, dated June 26, 2009, from a neurologist, Dr. Wael Karim, to his primary treating physician, Dr. Calvin White. Dr. White referred Mr. Marshall to Dr. Karim for a consultation. In this letter, Dr. Karim acknowledged that Mr. Marshall was involved in a vehicle accident in 2007. Dr. Karim diagnosed Mr. Marshall with disc herniation and spinal disease. Mr. Marshall neither took Dr. Kar-im’s deposition, nor tendered him as an expert witness at trial.

Mr. Marshall also argues that because his petition asked for any damages that could be proven at trial, the trial court erred by not awarding Mr. Marshall his lost wages. Finally, Mr. Marshall claims that the trial court did not award damages for all medical expenses related to the accident. In particular, Mr. Marshall asserts that the $12,958.67 award did not include the bills for MRIs Mr. Marshall underwent in 2007 and in 2009 upon which Dr. Karim relied in making his diagnoses.

III.

STANDARD OF REVIEW

“[A] court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of ‘manifest error’ or unless it is ‘clearly wrong.’” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, “where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reason *443 able.” Id. (citing Arceneaux v. Domingue, 865 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973)).

“[T]he trial court has wide discretion in determining whether to allow a witness to testify as an expert, and its judgment will not be disturbed on appeal unless it is clearly erroneous.” Deer Field Hunting Club, Inc. v. Swayze Plantation, L.L.C., 50 8—313, pp.

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33 So. 3d 438, 9 La.App. 3 Cir. 1137, 2010 La. App. LEXIS 385, 2010 WL 933859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-v-boydston-lactapp-2010.