Olivier v. LeJeune

649 So. 2d 753, 1994 WL 680435
CourtLouisiana Court of Appeal
DecidedApril 7, 1995
Docket94-697
StatusPublished
Cited by3 cases

This text of 649 So. 2d 753 (Olivier v. LeJeune) 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
Olivier v. LeJeune, 649 So. 2d 753, 1994 WL 680435 (La. Ct. App. 1995).

Opinion

649 So.2d 753 (1994)

Burton OLIVIER et ux., Plaintiffs-Appellants,
v.
Patrick D. LEJEUNE and State Farm Mutual Automobile Insurance Company, Defendants-Appellees.

No. 94-697.

Court of Appeal of Louisiana, Third Circuit.

December 7, 1994.
Rehearing Denied March 1, 1995.
Writ Granted April 7, 1995.

*755 J. Minos Simon, Lafayette, for Burton Olivier et ux.

Leon Elzear Roy, III, New Iberia, for Patrick LeJeune et al.

Before KNOLL and WOODARD, JJ., and BERTRAND,[*] J. Pro Tem.

KNOLL, Judge.

This is a suit for damages arising out of an automobile accident brought on behalf of Burton and Shirley Olivier, plaintiffs-appellants, and against Patrick D. LeJeune and his insurer, State Farm Mutual Automobile Insurance Company, defendants-appellees. The defendants stipulated liability, and requested a jury trial to assess damages for Mr. Olivier's back injury. During trial, the defendants introduced a surveillance videotape of Mr. Olivier, which was not listed in the pre-trial order, for the purpose of impeaching his testimony. The trial judge admitted the surveillance videotape over the plaintiffs' objections. At the conclusion of the trial, the jury awarded Mr. Olivier $5,500 for past medical expenses and $1,000 for mental pain and suffering. The jury awarded nothing for loss of consortium, past, present and future pain and suffering, or future medical expenses. The plaintiffs filed motions for JNOV and for a new trial or additur, which the trial court denied except to increase Mr. Olivier's award for past medical expenses from $5,500 to $8,335.22.

Plaintiffs bring this appeal, claiming that the videotape was improperly admitted into evidence, unduly prejudiced the jury, and tainted the jury award. We reverse, set aside, and render judgment.

FACTS

On October 18, 1991, an automobile driven by Patrick D. LeJeune collided with a vehicle occupied by Burton and Shirley Olivier. The morning after the accident, Mr. Olivier experienced chest pain and sought emergency room care at Our Lady of Lourdes Hospital. Finding no immediate problems with Mr. Olivier's heart, the hospital released him. Three years before this accident, Mr. Olivier, now fifty-nine years of age, suffered a disabling heart attack that forced him to retire from a thirty-five year career, beginning at age sixteen, in the oilfield dredging industry. One week later, Mr. Olivier still suffered from chest pain and also felt pain in his right shoulder. On October 25, 1991, Mr. Olivier sought treatment from his family physician, Dr. Warren J. Degatur, Jr., who prescribed an anti-inflammatory medication. Although Mr. Olivier also felt a tingling sensation and a tightening in his lower back, he did not seek treatment of his lower back at this time.

However, when the tingling sensation evolved into lower back pain, Mr. Olivier returned to Dr. Degatur for treatment on November 1, 1991. Dr. Degatur examined Mr. Olivier by palpitating his lower back. Although Dr. Degatur's examination did not reveal muscle tension or noticeable surface spasms, he felt that Mr. Olivier's condition *756 necessitated a prescription for muscle relaxants to ease Mr. Olivier's pain.

Within two months, Mr. Olivier's lower back pain radiated to his legs and caused a numbness in his right leg. On January 3, 1992, he began treatment with Dr. Louis C. Blanda, an orthopedic surgeon, who specialized in this type of injury. In a series of visits, Dr. Blanda ordered diagnostic tests, including X-rays and an MRI. The tests revealed spondylolisthesis, a congenital defect in the spine, at the L-5/S-1 level. Given Mr. Olivier's thirty-five year history of arduous labor in the oil industry without problematic back pain, Dr. Blanda testified that the accident exacerbated Mr. Olivier's previously asymptomatic congenital spondylolisthesis. Dr. Blanda recommended that Mr. Olivier begin conservative treatment which included a back brace and physical therapy.

After approximately two months of conservative treatment, Mr. Olivier returned to Dr. Blanda on April 30, 1992. Although he no longer complained of numbness in his right leg, his lower back pain remained. During this examination, Dr. Blanda palpitated Mr. Olivier's lower back and detected muscle spasms. At trial, Dr. Blanda explained that muscle spasms were the body's natural method of isolating and immobilizing a back injury so that it could heal. At this time, Dr. Blanda and Mr. Olivier discussed the possibility of fusion surgery in the event that Mr. Olivier's pain continued. However, Dr. Blanda told Mr. Olivier that he favored conservative treatment because of Mr. Olivier's heart condition. As part of this conservative treatment, Dr. Blanda prescribed analgesics to dull Mr. Olivier's pain.

On June 5, 1992, experiencing continued pain, Mr. Olivier again discussed fusion surgery with Dr. Blanda. During this visit, Dr. Blanda advised Mr. Olivier that fusion surgery was an option of last resort and that Mr. Olivier would have to weigh the benefits and the risks before making any decision. Dr. Blanda also recommended that Mr. Olivier obtain a second opinion. Thereafter, Mr. Olivier sought treatment from Dr. Thomas C. Laborde, a specialist in physical medicine and rehabilitation. Dr. Laborde's examinations revealed muscle spasms in Mr. Olivier's lower back and nerve root irritation at the L-5/S-1 level. Dr. Laborde treated Mr. Olivier using physical therapy and epidural blocks of cortisone. Despite temporary relief, Mr. Olivier experienced continued pain. Dissatisfied with the results of conservative treatment, Mr. Olivier again discussed the possibility of fusion surgery with Dr. Blanda on August 13, 1992. The defendants stipulated that Mr. Olivier's fusion surgery would cost $25,500 to $28,500 and an additional $1,000 for an anesthesiologist.

ADMISSIBILITY OF SURVEILLANCE VIDEOTAPE

The plaintiffs maintain that the trial court erred by admitting the defendants' surveillance videotape into evidence for impeachment because Mr. Olivier's testimony discussing the activities he performed after the accident was consistent with the events depicted in the videotape. The plaintiffs further assert that admission of this videotape unduly prejudiced the jury and tainted the damage award. We agree.

The admissibility of extrinsic evidence used for the purpose of impeachment is governed by La.Code Evid. Art. 607(D), which provides, in pertinent part, as follows:

D. Attacking credibility extrinsically. Except as otherwise provided by legislation:
(1) Extrinsic evidence to show a witness' bias, interest, corruption, or defect of capacity is admissible to attack the credibility of the witness.
(2) Other extrinsic evidence, including prior inconsistent statements and evidence contradicting the witness' testimony, is admissible when offered solely to attack the credibility of a witness unless the court determines that the probative value of the evidence on the issue of credibility is substantially outweighed by the risks of undue consumption of time, confusion of the issues, or unfair prejudice. (Emphasis added.)

Defendants contend that the videotape impeached Mr. Olivier's credibility and contradicted his testimony concerning the extent of his injuries and the activities that he *757 could perform after the accident. We have carefully viewed the surveillance videotape, which consists of approximately 35-40 minutes, showing Mr. Olivier doing piddling chores in and about his house, yard, car, and carport.

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Related

Olivier v. LeJeune
686 So. 2d 55 (Louisiana Court of Appeal, 1996)
Olivier v. LeJeune
668 So. 2d 347 (Supreme Court of Louisiana, 1996)
Tamporello v. State Farm Mut. Auto. Ins. Co.
665 So. 2d 503 (Louisiana Court of Appeal, 1995)

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649 So. 2d 753, 1994 WL 680435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olivier-v-lejeune-lactapp-1995.