Orillac v. Solomon

765 So. 2d 1185, 2000 WL 1193824
CourtLouisiana Court of Appeal
DecidedAugust 23, 2000
Docket33,701-CA
StatusPublished
Cited by9 cases

This text of 765 So. 2d 1185 (Orillac v. Solomon) 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
Orillac v. Solomon, 765 So. 2d 1185, 2000 WL 1193824 (La. Ct. App. 2000).

Opinion

765 So.2d 1185 (2000)

Patricia I. ORILLAC, et al., Plaintiffs-Appellees,
v.
Cleo SOLOMON, et al., Defendants-Appellants.

No. 33,701-CA.

Court of Appeal of Louisiana, Second Circuit.

August 23, 2000.

*1186 Lunn, Irion, Salley, Carlisle & Gardner by J. Martin Lattier, Jack E. Carlisle, Jr., Shreveport, Counsel for Appellants.

Robert S. Tew, Monroe, Counsel for Appellees.

Before NORRIS, PEATROSS & DREW, JJ.

PEATROSS, J.

This appeal arises from an automobile accident in which Defendant, Cleo Solomon, was solely at fault in injuring Plaintiff, Patricia Orillac (hereinafter Ms. Orillac)[1], and in damaging the vehicle driven by Ms. Orillac, which was owned by her father, Plaintiff, Dr. Rogelio Orillac. The trial court awarded Ms. Orillac $45,000 in general damages and $4,638 in medical expenses.[2] Dr. Orillac was awarded $5,000 in property damage for the depreciation of his car. Defendants, Mr. Solomon and his insurer, Reliance Insurance Company, appeal the judgment as excessive. For the reasons stated herein, we find that the general damages awarded to Ms. Orillac were excessive and amend the trial court's judgment, and, as amended, we affirm.

FACTS

On May 1, 1997, in Monroe, Louisiana, a vehicle driven by Ms. Orillac, and owned by her father, Dr. Rogelio Orillac, was struck by a left-turning vehicle operated by Mr. Solomon, and insured by Reliance Insurance Company. The resulting lawsuit was tried in October 1999. The parties stipulated to Mr. Solomon's liability, leaving only the issue of damages, Dr. Orillac's property damage and Ms. Orillac's personal injury damages, to be determined by the trial court.

The deposition and records of Dr. Douglas Brown, the orthopaedist who treated Ms. Orillac, were introduced into evidence without objection. In his deposition testimony, Dr. Brown indicated that he first examined Ms. Orillac on May 2, 1997, the day following the accident. At that time, she complained of headaches, but admitted she had a history of migraine headaches. There was no restriction of movement in Ms. Orillac's neck; her cranial nerves were normal; and her shoulder movement was *1187 unrestricted. Ms. Orillac could walk normally and her reflexes were fine, but she did have some tenderness in her lower back along the middle of the right lumbar spine. X-rays of Ms. Orillac's cervical and lumbar spine appeared to be normal, although there was a "questionable defect" in a section of the L3 vertebra on the right side which corresponded to the area where she had pain.

Several weeks later, on May 12, 1997, Ms. Orillac returned to Dr. Brown with complaints of back pain. She also complained for the first time of pain in her left knee and stated that she felt she had struck her knee in the accident on the drivers' side car door or dashboard. Examination revealed nothing specific. Mrs. Newman had tenderness in the joint line on the inside of her knee that suggested a possible cartilage injury. With respect to her back, Dr. Brown found pain when he percussed Ms. Orillac's spine, but no neurologic defect. Dr. Brown ordered an MRI of Ms. Orillac's lumbar spine, as well as her knee, and told her to return once those were completed. Ms. Orillac returned on July 21, 1997, and the MRI of her knee showed a small tear in the back of the inside cartilage (medial meniscus). The location corresponded to the area where Ms. Orillac had pain. With respect to her back, the MRI showed "just some minimal bulging" of two discs and "some very slight encroachment" between the L5 and S1 vertebra that would impinge on the S1 nerve root.

After reviewing these findings, Dr. Brown informed Ms. Orillac that surgery was not warranted, and he put her on an exercise program. He advised her to "back off" on gymnastic events and maneuvers until she was completely well.

Dr. Brown did not see Ms. Orillac again until May 1998, at which time she informed Dr. Brown that physical activity such as cheerleading or aerobic tumbling gave her back pain. Ms. Orillac walked smoothly, however, and she could climb up and down on the examination table without difficulty. Her neurologic function was normal, although she still had tenderness at the L4 and L5 vertebra. This tenderness was consistent with the abnormalities which were revealed by the MRI. There was no evidence, however, of any true nerve root impingement. Ms. Orillac's knee was not swollen and it had a full range of motion; the ligaments were normal, but she did have some tenderness on the back inside corner of her knee where the changes were seen on the MRI. Dr. Brown advised Ms. Orillac to do more stretching exercise and aerobic activities, but not weight lifting. Ms. Orillac admitted she was able to do "a little bit of jogging" and that it did not bother her. Again, Dr. Brown advised her that he thought there was no need for surgery. Ms. Orillac did not seek treatment from Dr. Brown again, and she later admitted that Dr. Brown was the only physician who had ever treated her for the accident-related injuries.

Dr. Brown could not say that Ms. Orillac's knee problems were more probably than not caused by the automobile accident. His hesitation was based on the fact that she did not complain about her knee when she first came to see him. At the same time, Dr. Brown admitted that it was possible her knee problem initiated with the accident and then became more symptomatic with time. He indicated that, if the knee started to deteriorate any more in the future or gave her more trouble, she might require arthroscopic meniscectomy of the knee, an outpatient operation that should correct the problem.

In regard to Ms. Orillac's back injury, Dr. Brown was able to state that, more probably than not, it did result from the accident. As for the future, Dr. Brown stated that the discs normally will stabilize after a period of time and not require surgery. The fact that Ms. Orillac had gone approximately two years without having to have surgery indicated she probably would not have to have surgery in the future. He expected her back problem to be mainly symptomatic with prolonged *1188 standing and during pregnancy, but not to the extent of requiring surgery.

The deposition of Dr. Andrew Marsala, a board-certified radiologist, was also entered into evidence. Dr. Marsala reviewed the MRIs performed on Mrs. Newman. He indicated that the MRI of the lumbar spine showed a very mild bulging at the L4-5 and L5-S1. He stated that the discs themselves were "not really very degenerated," just mildly bulging. He further stated that he saw that type of bulging "almost every day" on MRIs of the lumbar spine and that disc bulging can start in early adulthood. Dr. Marsala testified that the type of bulge he saw in Ms. Orillac's case commonly is asymptomatic. Although he indicated that trauma could cause "a little mild bulge like this," most commonly it was caused by early degenerative changes. As to causation in Ms. Orillac's case, he indicated that nothing on the MRI told him either way with any degree of certainty.

In reviewing the MRI of Ms. Orillac's knee, Dr. Marsala indicated that the film looked like "a normal young adult knee." He did note some degeneration in the posterior horn of the medial meniscus, but indicated that was common—an early change seen in adults, and not necessarily a sign of trauma or disease. He found no tears or evidence of trauma, and no fluid or blood in the joint. Dr. Marsala agreed with the report of Dr. Todd B. Guinn, the radiologist who originally read the report. Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
765 So. 2d 1185, 2000 WL 1193824, Counsel Stack Legal Research, https://law.counselstack.com/opinion/orillac-v-solomon-lactapp-2000.