Oregan v. Cashio

220 So. 3d 845, 16 La.App. 5 Cir. 563, 2017 WL 1488857, 2017 La. App. LEXIS 730
CourtLouisiana Court of Appeal
DecidedApril 26, 2017
DocketNO. 16-CA-563
StatusPublished
Cited by5 cases

This text of 220 So. 3d 845 (Oregan v. Cashio) 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
Oregan v. Cashio, 220 So. 3d 845, 16 La.App. 5 Cir. 563, 2017 WL 1488857, 2017 La. App. LEXIS 730 (La. Ct. App. 2017).

Opinion

JOHNSON, J.

[ iThis is. a personal injury case arising out of a motor vehicle accident in which Plaintiff, Christine Caminita, appeals the jury verdict awarding $3,719.20 in her favor. For the following reasons, we affirm.

FACTS & PROCEDURAL HISTORY

On February 13, 2012, Plaintiff was a front seat passenger in a vehicle driven by Michelle Oregan that was struck from behind by a car driven by Defendant, Laura Cashio. According to trial testimony, Plaintiffs vehicle was stopped in traffic at a red light on West Napoleon Ave. in Metairie near the intersection of Clearview Parkway when Defendant ran into the back of it. Defendant testified that she too was stopped in traffic and had waited through two light cycles. Defendant stated that the traffic started to move and she let her foot off the brake and hit the vehicle in front of her.

The police were called and an accident report was generated. An ambulance responded to the scene but was not needed. Ms. Oregan took Plaintiff to- Kenner Regional Hospital upon leaving the accident scene after stopping by her house to get Plaintiffs identification. Plaintiff testified that she immediately felt pain, in her neck and back after the accident. At the hospital, Plaintiff reported neck and back pain. She indicated to the emergency room doctor that she did not need additional pain medication because she was currently.taking pain medication for a preexisting chronic back condition.

Plaintiff, who was 31 years old at the time of the accident, was actively treating for low back pain prior to the accident. She [848]*848was diagnosed with scoliosis when she was 12 years old. She had surgery in 1993, at the age of 13, to place a rod in her back. The rod later broke, requiring a second surgery in 2003 that resulted in a fusion of her back from the T12 through L3 level. Despite the |2surgery, Plaintiff continued to suffer with back pain. That same year, while Plaintiff was in a back brace, she was involved in an automobile accident where she was struck in an intersection after a car ran a red light and injured her neck. In 2008, Plaintiff had a slip and fall accident where she injured her knee and back. In 2009, a CT of her lumbar spine showed an L4-5 disc protrusion and L5-S1 disc bulge.

Plaintiff treated with various doctors in 2010 and 2011 for chronic back pain and radiating pain into her legs. A 2011 lumbar MRI showed disc abnormalities at L5-S1. Plaintiff underwent a discogram in May 2011, which indicated her L4-5 disc was symptomatic. At that time, her treating orthopedic surgeon, Dr. James Butler, recommended surgery to fuse the L4-5 level and to possibly re-attempt to fuse the Ll-2 level, but Plaintiff never had the surgery. At the time of the accident, Plaintiff was treating with a pain management specialist and was taking a significant amount of pain medication.

On March 21, 2012, one month after the February 13, 2012 accident at issue in this case, Plaintiff was involved in another motor vehicle accident in which she was again rear-ended. She subsequently treated with Dr. Rand Voorhies, a neurosurgeon, after being referred to him by her attorney for a second medical opinion. Dr. Voorhies ordered several tests, including an MRI and a SPECT scan, which is a type of bone scan that detects areas of increased metabolic activity. Dr. Voorhies interpreted the lumbar SPECT scan as abnormal, showing increased activity at L5-S1 and her sacroiliac joints (“SI joints”), mostly on the left side. He ultimately concluded that Plaintiffs main problem was her SI joints, predominantly the one on the left side. On January 29, 2013, Plaintiff underwent surgery to her left SI joint. According to Dr, Voorhies, Plaintiffs SI joint pain was caused by the February 13, 2012 accident, even though he did not examine Plaintiff until after both the February and March 2012 accidents. He explained that Rhis opinion regarding causation was based solely on Plaintiffs history and the fact she related that her SI joint pain started after the February accident. Dr. Voorhies further indicated that Plaintiff would likely require future surgery on her right SI joint.

Plaintiff filed the instant lawsuit on March 14, 2012, one month after the February accident but before the March accident against Defendant; USAA Casualty Insurance Co., as Defendant’s automobile liability insurer; State Farm Insurance Company, as the uninsured/underinsured motorist (“UM/UIM”) carrier for Ms. Ore-gan; and General Insurance Company of America,1 as Plaintiffs own UM/UIM carrier, seeking damages for injuries she al~ legedly sustained in the accident.2 After a three-day trial, a jury found that Plaintiff was injured in the February 13, 2012 acci[849]*849dent and awarded her $2,000 for pain and suffering and $1,719.20 for past medical expenses. The trial court signed a judgment to that effect on September 18, 2014. An amended judgment was signed on March 16, 2016, adding the necessary de-cretal language identifying the defendants against whom the judgment was rendered.3 It is from the amended judgment that Plaintiff now appeals.

ISSUES

Plaintiff essentially raises two issues on appeal. First, she contends that the trial court erred in refusing to instruct the jury on the presumption of causation set forth in Housley v. Cerise, 579 So.2d 973 (La. 1991). Second, Plaintiff argues that the jury verdict is ambiguous and, therefore, an additur or new trial is required. 14Plaintiff maintains the verdict is susceptible of conflicting interpretation because it is unclear whether the jury apportioned fault between the two accidents.

LAW & ANALYSIS

Jury Charge — Housley Presumption of Causation

Plaintiff argues that the trial court erred in refusing to instruct the jury on the Housley presumption of causation. She asserts the trial court erred in concluding that she was not in good health, thereby rendering the Housley presumption inapplicable, without first submitting the factual question to the jury. Plaintiff contends the trial court impermissibly made its own credibility determinations and weighed the evidence regarding her health status instead of allowing the jury to do so. Plaintiff further maintains that despite the evidence of her preexisting chronic back pain, the trial court erred in finding she was not in good health for purposes of the Housley presumption because there was no evidence she suffered from any SI joint pain or dysfunction prior to the accident.

Louisiana Code of Civil Procedure Article 1792(B) requires that a trial judge instruct the jury on the law applicable to the case submitted to them. “The trial judge is responsible for reducing the possibility of confusing the jury and may exercise the right to decide what law is applicable and what law it deems inappropriate.” Wooley v. Lucksinger, 09-571 (La. 4/1/11); 61 So.3d 507, 573, quoting Adams v. Rhodia, Inc., 07-2110 (La. 5/21/08); 983 So.2d 798, 804 . Trial courts are given broad discretion in formulating jury instructions and a trial court’s judgment should not be reversed so long as the charge correctly states the substance of the law. Adams, supra.

The trial judge is under no obligation to give any specific jury instruction that may be submitted by either party; however, the judge must correctly charge the jury. Wiltz v. Bros. Petroleum, LLC, 13-332 (La.App. 5 Cir. 4/23/14); 140 So.3d 758, 777,

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Bluebook (online)
220 So. 3d 845, 16 La.App. 5 Cir. 563, 2017 WL 1488857, 2017 La. App. LEXIS 730, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oregan-v-cashio-lactapp-2017.