Nathan v. Home Depot

522 So. 2d 712, 1988 La. App. LEXIS 387, 1988 WL 23508
CourtLouisiana Court of Appeal
DecidedMarch 14, 1988
DocketNo. 87-CA-582
StatusPublished
Cited by4 cases

This text of 522 So. 2d 712 (Nathan v. Home Depot) 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
Nathan v. Home Depot, 522 So. 2d 712, 1988 La. App. LEXIS 387, 1988 WL 23508 (La. Ct. App. 1988).

Opinion

BOWES, Judge.

Appellant Sandra Nathan (Nathan) appeals a jury verdict and the judgment adopting it awarding her $12,500 in damages. She was injured by falling lumber in a Home Depot store and, on appeal, avers that the judgment in her favor was inadequate to compensate for her damages. We revise the judgment by increasing the award for medical expenses slightly, and, as revised, affirm.

Ms. Nathan is an attorney. On July 20, 1985, she went to the Home Depot store to buy material for a dog pen. While walking down an aisle of the store, a piece of lumber fell from an overhead shelf. Just before the lumber hit her, Ms. Nathan put her hands up to ward off a blow to her head, twisting to get out of the way. The lumber hit her right wrist and arm, causing injury. She went to the emergency room at St. Charles General Hospital, where she was X-rayed. Four days later, after the pain did not abate, she consulted Dr. John Watermeier, who diagnosed a fractured wrist and ordered a small cast.

Several days later, Ms. Nathan again visited Dr. Watermeier, still complaining of wrist pain radiating up into the elbow and arm, and into the shoulder. He felt she might have a nerve injury known as shoulder-hand syndrome, and a twisting injury. She continued to return for treatment, continuing to complain of the radiating pain from wrist and shoulder. On August 20, 1985, Dr. Watermeier ordered certain diagnostic tests. A thermogram revealed an “abnormal C5-6 nerve fiber pattern which [713]*713is not changed substantially from the previous films.” (This thermogram will be discussed further, infra). Ms. Nathan also underwent a needle EMG and a nerve conduction study which showed nerve problems in the area between the elbow and wrist. No findings during these tests indicated a cervical disc problem, although the tests did not completely eliminate that possibility, since the examination was not designed to rule out a cervical nerve root problem.

She continued treatment by Dr. Water-meier, and received some physical therapy, which did not improve her condition. In November, she had an improved range of motion in her shoulder and less pain. In December, she began to complain of neck pain and, at this time, her diagnosis was changed from “right distal radius fracture” to “cervical disc syndrome.” In January, 1986, Dr. Watermeier ordered a CAT scan, Magnetic Resonance Image (MRI) and a discogram. The tests showed bulging cervical discs at three levels, as well as a “boney spur” at the sixth cervical vertebra. Dr. Watermeier diagnosed a cervical bulging disc syndrome and further felt that the tests indicated there was at least one herniated disc involved.

Conservative treatment consisting of medication and more physical therapy failed, and, in February, 1987, Ms. Nathan underwent surgery for a cervical disc fusion. Later that month, trial was held, resulting in the verdict and judgment on appeal. After the trial, the jury was polled; at least nine jurors agreed that the defendant Home Depot was negligent and that such negligence was a cause in fact of the accident (Home Depot’s liability has not been appealed). These nine jurors agreed that the award for medical expenses should be five hundred dollars, but the jury could not initially agree on an award for general damages. After returning again to the jury room, a verdict of twelve thousand dollars in general damages was returned.

Plaintiff argues, and we agree, that the jury would have had to award a larger judgment for medical expenses if it had decided that Ms. Nathan’s neck problem was a result of the accident, since the stipulated medical expenses paid by her eq-ualled $3,911.91 from the date of the injury to January, 1987, and the expenses of surgery totalled $14,964.95. Therefore, plaintiff argues that the jury’s failure to find that she sustained any type of neck injury, or disc injury, and the failure to award any amount for such injury, was manifest error.

Dr. Watermeier testified that based on Ms. Nathan’s history, with no intervening severe injuries, the cause of the disc problem was the accident at Home Depot. He did not state with absolute certainty that the accident was the sole cause of the herniated disc, but rather opined that the incident “aggravated” or “activated” plaintiff’s condition.

It was brought out at trial that Ms. Nathan had a history of previous cervical problems, beginning with an auto accident in 1974, which caused “cervical strain” for which she was treated about eight months; a “stiff neck” in 1977, which X-rays revealed “a definite mobility range between 4 and 5”; and a “spontaneous onset of severe neck pain” in June, 1984, “with radiation to the right upper extremity ... no history of trauma, etc.” X-rays at that time showed a “very mild narrowing at two (unspecified) cervical regions.” Dr. Ma-nale, one of the other physicians who treated Ms. Nathan at the orthopedic clinic along with Drs. Watermeier, Phillips, and Adatto, stated at that time: “I suspect she has cervical radiculitis, diskogenic type pain.” A thermogram was run in 1984, during this complaint, in which a “coolness” on the left was noted. When the 1984 thermogram was compared with the 1985 thermogram (taken after the accident), Dr. Adatto of the Orthopedic Clinic interpreted an “Abnormal C5-C6 nerve fiber pattern which is not changed substantially from the previous films.”

Counsel for defendant skillfully elicited from Dr. Watermeier the observation that the only objective tests conducted both before the accident and afterward, the ther-mogram, had been diagnosed as being essentially unchanged by one of Dr. Water-[714]*714meier’s partners. Nevertheless, Dr. Wat-ermeier testified that it did not appear from Ms. Nathan’s record that she had previously had a herniated disc problem, apparently disagreeing with Dr. Adatto’s interpretation. We note also that Ms. Nathan’s complaints following the accident were of pain radiating up her arm toward the shoulder, yet, according to Dr. Water-meier, the usual sign of a cervical disc injury is pain radiating down from the shoulder area to the arms (as in the June, 1984, complaint).

Dr. Gordon Nutnik examined Ms. Nathan for a second opinion as required by her medical insurance. After Dr. Nutnik examined plaintiff and reviewed the diagnostic tests, he concluded that there was a herniated disc at C6-7 which would require surgery. Furthermore, Dr. Nutnik felt that the accident as described could definitely be related to Ms. Nathan’s problems, and that a twisting injury can definitely injure a disc. However, when presented with the June, 1984, entry on Ms. Nathan’s chart indicating complaints similar to her neck pains following the accident, Dr. Nut-nik stated that the possibility of a nerve root compression (in 1984) would have been part of his differential diagnosis. He testified that he would not have been certain of that diagnosis unless he had had the diagnostic studies run.

Dr. James Williams examined plaintiff on behalf of the defendants. He also reviewed the diagnostic tests and testified that he felt she had most likely sustained a cervical strain, but that she had not had a ruptured disc. He disagreed with the diagnoses of Drs. Watermeier and Nutnik, opining that the bulge at C6-7 was probably a calcification, which was primarily posterior, and not bulging to the side so as to impinge on the nerve roots. Dr. Williams further testified that the accident could not have caused a herniated disc.

Ms. Nathan herself testified that, after the accident, she experienced pain in her arm, wrist, elbow and shoulder.

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Related

Jones v. Hyatt Corp. of Delaware
681 So. 2d 381 (Louisiana Court of Appeal, 1996)
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613 So. 2d 691 (Louisiana Court of Appeal, 1993)
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544 So. 2d 440 (Louisiana Court of Appeal, 1989)
Nathan v. Home Depot
530 So. 2d 84 (Supreme Court of Louisiana, 1988)

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Bluebook (online)
522 So. 2d 712, 1988 La. App. LEXIS 387, 1988 WL 23508, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nathan-v-home-depot-lactapp-1988.