Perret v. Nelson

722 So. 2d 1118, 98 La.App. 5 Cir. 393, 1998 La. App. LEXIS 3403, 1998 WL 812805
CourtLouisiana Court of Appeal
DecidedNovember 25, 1998
DocketNos. 98-CA-393, 98-CA-394
StatusPublished
Cited by2 cases

This text of 722 So. 2d 1118 (Perret v. Nelson) 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
Perret v. Nelson, 722 So. 2d 1118, 98 La.App. 5 Cir. 393, 1998 La. App. LEXIS 3403, 1998 WL 812805 (La. Ct. App. 1998).

Opinion

kGOTHARD, Judge.

Plaintiffs/appellants, Annette and Marion Perret, appeal a decision of the 24th Judicial District Court which rendered judgment in their favor for a total of $22,620.32 as compensation for injuries sustained in an automobile accident. Appellants assert that the judgment is inadequate to compensate them for the damages sustained which total about $200,000.00. They maintain that the inequity of the judgment was caused by the trial court’s reliance on the testimony of an accident reconstruction expert which was improperly admitted.

The Perrets were riding in their 1991 Ford Explorer on September 3, 1993 when they were hit from the rear while stopped for traffic on Seventeenth Street in Metairie by defendant, Nicholas Nelson, a Jefferson Parish Sheriffs deputy. The Perrets filed a damage suit against Nelson and Harry Lee, Sheriff of Jefferson Parish.

bln a consolidated ease, Hartford Insurance Company (Hartford) filed suit against the same two defendants for funds paid out under the Perrets’ insurance policy as a result of the accident. Hartford settled with the defendants and subsequently filed an order of dismissal which was granted on June 27,1998. Thus, although the two matters are consolidated on appeal, the action brought by Hartford leaves nothing for our review.

Before trial the plaintiffs filed a “Motion in Limine” seeking to exclude the testimony of Michael G. Sunseri on the basis that his testimony, as offered in his pre-trial deposition, did not meet the criteria in Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579, 113 S.Ct. 27886 (1993). After a hearing, the trial court denied the motion and the matter proceeded to a bench trial, after which the court rendered judgment in favor of Annette Perret in the amount of $11,-000.00 and in favor of Marion Perret in the amount of $11,620.32. • It is from that judgment that plaintiffs appeal.

[1120]*1120There are no issues of fault raised in this Court. The issues presented for our consideration are limited to causation. In four assignments of error, appellants argue that the trial court committed legal error in failing to exclude certain expert evidence and in the consideration of that evidence at trial.

At the trial on the merits, the court heard testimony from Marion Perret, who testified that he was stopped in traffic on Seventeenth Street, when their vehicle was struck from the rear. Mr. Perret was driving and his wife was seated in the front passenger seat. Mr. Perret’s testimony was that the impact was severe, causing him to experience two sharp “lightening-like stings” emanating from the neck area down the right shoulder, arm and hand. He stated that the pain then went across his lower back and down the right leg into the foot. He ^testified that he had no pain in either his neck or back before the accident. The couple had just come from the post office and Mrs. Perret had mail on her lap, which was knocked to the floor by the force of the impact. After the accident, Mr. Perret was “in shock” and remained in the car for about five minutes. Although his foot was on the brake before and during the impact, his vehicle was pushed forward about twelve to fourteen feet. The driver of the other car tapped on the window to ascertain if anyone was hurt, and shortly several police officers were on the scene. The parties remained at the scene of the accident for over an hour while the officers were making an accident report. During that time Mr. Per-ret continued to have pain in his neck, arm, hand, back, leg and foot.

Mr. Perret stated that the damage to his vehicle seemed to be negligible, with some minor damage to the bumper and trailer hitch. Mr. Perret explained that he had a seventy-five hundred pound cross-bar tow trailer hitch on the rear bumper of his vehicle.

After the incident the couple drove home. Both Mr. Perret and his wife were experiencing similar symptoms which required hot compresses that evening, and were unable to sleep. Mr. Perret arose at 4:30 a.m. the next morning and attempted to make coffee, but the process was difficult because his left hand was shaking. Later that afternoon, Mr. Perret sought medical attention at the emergency room of Elmwood Medical Center. After an examination, the emergency room physician diagnosed a possible fractured disc and notified Mr. Perret’s personal physician, Dr. Bruce Razza, who came to the hospital later that day. Dr. Razza disagreed with the diagnosis, finding a degenerative disc, rather than a fracture. Mr. Perret was put in a full length neck brace and a back brace. He was given several prescriptions for pain and muscle spasms, as well as anti-_|nflammatory5 medication. Mr. Perret was treated conservatively with heat and mild exercise to strengthen the muscles in the affected area.

Mr. Perret testified that his condition worsened, making simple movements such as changing from a sitting to a standing position virtually intolerable. He stated that he needed assistance from his wife to get out of bed, or up out of a chair. The medication provided only temporary relief from the pain. A few weeks later Dr. Razza administered cortisone injections. Mr. Perret also underwent an MRI, after which a facet nerve block, or injection of anti-inflammatory medication into the spinal column, was administered. Later, an epidural block was also administered. Because none of the procedures provided effective, lasting relief, Dr. Razza recommended surgery.

Mr. Perret testified that he and his wife are self-employed. They own and operate a construction machinery and equipment business with operations in the Middle East. Before the accident, Mr. Perret would travel to the Middle East about three times a month, requiring a plane ride of about twenty-eight hours. About forty days after the accident, Mr. Perret had to make the trip. He was in extreme pain for the duration of the flight. The ordeal of the flight over made the business dealings very difficult. As he continued his business trip, which required several other flights in the area, the pain worsened. Upon his return home, Mr. Perret underwent additional diagnostic tests, and ultimately two surgeries to correct the herniated discs in the neck area and lower [1121]*1121back. He was in various types of braces for about nine months after the surgeries.

He enjoyed considerable relief after the surgeries and was able to resume some of his normal activities. However, he suffered a recurrence of pain in his neck and right arm following a sneeze. He went to a rehabilitation center and fcwas advised to continue conservative treatment. He is now unable to participate in many of the activities he and his wife previously enjoyed such as fishing, dancing, traveling, and picking up his granddaughter. He also has persistent hoarseness and difficulty swallowing due to the scar tissue remaining from the neck surgery.

Mr. Perret also testified with regard to his wife’s problems after the accident. He related that she was involved in the family business before the accident, but was forgetful and unreliable afterward. Further, the pain and suffering both Mr. and Mrs. Perret experienced put a strain on their forty-five year marriage.

Mr. Perret acknowledged that his wife had been involved in two automobile accidents prior to the one which forms the basis on the instant lawsuit, in 1988 and 1991. In both prior accidents, Mrs. Perret made claims for physical injuries and Mr. Perret made claims for loss of consortium. Mr.

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Bluebook (online)
722 So. 2d 1118, 98 La.App. 5 Cir. 393, 1998 La. App. LEXIS 3403, 1998 WL 812805, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perret-v-nelson-lactapp-1998.