Oliver v. Cal Dive Intern., Inc.

844 So. 2d 942, 2002 La.App. 1 Cir. 1122, 2003 La. App. LEXIS 789, 2003 WL 1759585
CourtLouisiana Court of Appeal
DecidedApril 2, 2003
Docket2002 CA 1122
StatusPublished
Cited by16 cases

This text of 844 So. 2d 942 (Oliver v. Cal Dive Intern., Inc.) 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
Oliver v. Cal Dive Intern., Inc., 844 So. 2d 942, 2002 La.App. 1 Cir. 1122, 2003 La. App. LEXIS 789, 2003 WL 1759585 (La. Ct. App. 2003).

Opinion

844 So.2d 942 (2003)

Ron OLIVER
v.
CAL DIVE INTERNATIONAL, INC.

No. 2002 CA 1122.

Court of Appeal of Louisiana, First Circuit.

April 2, 2003.
Rehearing Denied May 30, 2003.

*944 L. Clayton Burgess, Lafayette, Kreig A. Breaux, New Iberia, Counsel for Plaintiff-Appellee Ron Oliver.

Ralph E. Kraft, F. Douglas Gatz, Jr., Ray F. Lucas, Lafayette, Cameron B. Simmons, New Iberia, Counsel for Defendant-Appellant Cal Dive International, Inc.

Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.

FITZSIMMONS, J.

Cal Dive International, Inc. (Cal Dive) appeals the grant of a default judgment rendered against it in favor of Ron Oliver (Mr. Oliver). Following this court's consideration of the record and the issues presented on appeal, the trial court judgment is affirmed in part, reversed in part, amended in part, and remanded in part.

Cal Dive asserts the following five assignments of error on appeal: (1) the trial court erred in admitting medical evidence submitted by plaintiff/appellee, Mr. Oliver, in support of the default judgment; (2) the trial court erred in granting Mr. Oliver a default judgment for personal injury when he failed to establish a prima facie case of liability and damages, and the judgment entered by the trial court was contrary to the law and evidence; (3) the trial court erred in granting a default judgment for personal injury in the amount of $2,274,403.00 upon the evidence presented at the hearing for the confirmation of default; (4) the trial court erred in failing to grant a new trial on the peremptory grounds provided in La. C.C.P. art.1972(1) or the discretionary grounds provided in La. C.C.P. art.1973; and (5) the trial court erred by permitting the judge in Division B to hear and decide the motion for new trial rather than the judge in Division G, to whom the case was allotted.

Although Cal Dive includes in its assigned errors an alleged failure by Mr. Oliver to establish a prima facie case of liability, the argument on behalf of Cal Dive is limited to the issue of damages. Therefore, this court accepts, and affirms, the lower court finding that Mr. Oliver's neuropathy in his thumb was causally related to decompression sickness while diving in September 2000, and that he was a seaman.

MEDICAL EVIDENCE

In conjunction with the confirmation of default, Mr. Oliver submitted the following documents into the record: medical records from Culicchia Neurological Clinic, where Maria Carmen Espiritu, M.D. treated him; medical records from John P. Simanonok, M.D.; a radiology report of an MRI by Joan Wojak, M.D.; a report by G. Randolph Rice, Ph.D, economist; a report by Glenn M. Hebert, MRC, whose specialty was vocational rehabilitation; and federal income tax returns from several years. The medical records indicate that Mr. Oliver was "a commercial diver who suffered an episode of decompression sickness [from which] he is left with a residual neurological deficit in the left upper extremity, specifically over the area of the left thumb."

The general statutory regulations for the admissibility of hospital records are *945 located in La. R.S. 13:3714, which states, in part:

Whenever a certified copy of the chart or record of any hospital, signed by the administrator or the medical records librarian of the hospital in question, or a copy of a bill for services rendered, medical narrative, chart, or record of any... health care provider ... is offered in evidence in any court of competent jurisdiction, it shall be received in evidence by such court as prima facie proof of its contents ....

The medical records exception obviates the need for laying a foundation for admissibility. Judd v. State, Department of Transportation and Development, 95-1052, p. 6 (La.11/27/95), 663 So.2d 690, 694.

Admissible evidence in a confirmation of default is, additionally, regulated by La. C.C.P. art. 1702. Section B(2) of that code article provides the following in pertinent part: "When a demand is based upon a delictual obligation, the testimony of the plaintiff with corroborating evidence, which may be by affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case, shall be admissible, self-authenticating, and sufficient proof of such demand." Thereafter, section D contains the following directive: "When the demand is based upon a claim for a personal injury, a sworn narrative report of the treating physician or dentist may be offered in lieu of his testimony."

The pivotal issue before this court is whether, in light of the language enunciated in La. C.C.P. art. 1702 D, the submitted medical records were sufficient to establish the treating physician's professional diagnosis or, alternatively, whether a sworn narrative report attesting to the validity of the records was required for the establishment of prima facie evidence. See Bordelon v. Sayer, XXXX-XXXX, pp. 5-6 (La.App. 3 Cir. 3/13/02), 811 So.2d 1232, 1236-1237, writ denied, XXXX-XXXX (La.6/21/02), 819 So.2d 340. The medical records indicate that following the mid-September 2000 incident, Mr. Oliver was treated by Dr. Simanonok on September 22, 2000 and October 6, 2000. On January 31, 2001, Dr. Simanonok wrote a letter in which he referred to Mr. Oliver's medical status as follows: "Therefore, he is rendered unfit to dive and will no longer be able to work as a commercial diver." A May 16, 2001 report to Cal Dive contains the following prognosis by Dr. Simanonok: "I suspect he will end up being permanently disqualified from diving duty." Then in another letter, dated May 17, 2001, Dr. Simanonok states: "It is my opinion that Mr. Oliver is unfit to dive and will no longer be able to work as a commercial diver."[1]

Dr. Simanonok's letters in the medical records were sufficient to establish prima facie proof that Mr. Oliver was permanently unable to pursue a career in "commercial diving." Neither oral medical testimony nor a sworn narrative report was necessary. Therefore, the provisions of La. C.C.P. art. 1702 D are not apposite, and Dr. Simanonok's written findings are admissible.

DAMAGES

The trial court awarded the following in damages:

Past Lost Wages                                       $ 101,000.00

*946
Past Medical Expenses                                 $    1,279.00
Past and Future Lost Employer-Paid Fringe Benefits    $  163,773.00
Future Lost Wages                                     $1,358,351.00
                                                      _____________
                  Total Special Damages               $1,624,403.00
Past Physical and Mental Pain and Suffering           $  250,000.00
Future Physical and Mental Pain and Suffering            250,000.00
Loss of Enjoyment of Life                             $  150,000.00
                                                      _____________
                 Total General Damages                $  650,000.00
                 Total Award                          $2,274,403.00

Mr. Oliver tendered the report of G. Randolph Rice, Ph.D., an economist, who assumed that Mr. Oliver's earnings were $97,500.00. Dr. Rice's $97,500.00 annual income estimate is based on a report by Glenn M. Hebert, MRC, LRC. Mr. Hebert noted that, but for the accident, Mr. Oliver could have continued to work, earning $85,000.00 to $110,000.00 per year.[2] Mr. Hebert also opined that Mr. Oliver had the "intellectual ability to re-enter the labor market earning $7.00 to $8.00 per hour" as of June 2001. Mr.

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844 So. 2d 942, 2002 La.App. 1 Cir. 1122, 2003 La. App. LEXIS 789, 2003 WL 1759585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oliver-v-cal-dive-intern-inc-lactapp-2003.