Polotzola v. Missouri Pacific R. Co.

610 So. 2d 903, 1992 WL 358333
CourtLouisiana Court of Appeal
DecidedNovember 20, 1992
Docket91 CA 1707
StatusPublished
Cited by7 cases

This text of 610 So. 2d 903 (Polotzola v. Missouri Pacific R. Co.) 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
Polotzola v. Missouri Pacific R. Co., 610 So. 2d 903, 1992 WL 358333 (La. Ct. App. 1992).

Opinion

610 So.2d 903 (1992)

Dommie R. POLOTZOLA,
v.
MISSOURI PACIFIC RAILROAD CO. d/b/a Union Pacific Railroad Co.

No. 91 CA 1707.

Court of Appeal of Louisiana, First Circuit.

November 20, 1992.

*904 Joe M. Inabnett, New Orleans, and Zach Butterworth, St. Francisville, for plaintiff-appellant Dommie R. Polotzola.

Boris Navratil, Baton Rouge, for defendant-appellee Missouri Pacific R. Co. d/b/a Union Pacific R.R.

Before CARTER, LeBLANC and FOIL, JJ.

LeBLANC, Judge.

Dommie Ray Polotzola filed suit under the Federal Employers' Liability Act (F.E.L.A., 45 U.S.C. § 51 et seq.) against the Missouri Pacific and Union Pacific Railroads, seeking damages for injuries sustained during a work-related accident. The jury returned a verdict in favor of defendants and judgment was entered dismissing the suit. Polotzola now appeals, urging that the verdict was contrary to the great weight of the evidence and that the trial court erred in admitting evidence prejudicial to his case. We affirm.

DISCUSSION

Polotzola was employed by Missouri Pacific Railroad as a bridge tender in December 1975. It was his responsibility to monitor river traffic on the Atchafalaya and to coordinate the opening of the Melville Bridge with oncoming train traffic. The bridge was constructed of steel girders with wooden timbers forming the bridge decking. A shack housing the bridge controls was located approximately midway across the bridge.

The accident in question occurred on October 23, 1986. Polotzola claims that as he approached the bridge tender's shack, he tripped on uneven boards and injured his right shoulder as he reached out to break his fall. The shoulder did not respond to conservative treatment, leading Polotzola's physicians to suspect a problem in the shoulder rotator cuff.

Polotzola underwent an arthrogram, a procedure in which radiopaque iodine is injected into the shoulder area to permit more comprehensive viewing of the rotator *905 cuff. Shortly after this test, Polotzola complained of cold chills, dizziness and headaches; several days thereafter his face became red and puffy. Angie Polotzola, plaintiff's wife, testified that her husband began showing signs of disorientation and memory loss during this time. Some six days after the arthrogram, Polotzola sought medical help at the emergency room and was hospitalized for several days because his blood pressure was excessively high. Mrs. Polotzola testified that the railroad's claims agent first suggested to her that her husband's symptoms might indicate an allergic reaction to the iodine used in the arthrogram; Mrs. Polotzola stated that Dr. Lazaro, the physician who ordered the test, confirmed this suspicion.

One physician, Dr. Domingue, prescribed the drug Xanac to combat Polotzola's dizziness and the ringing in his ears. Polotzola subsequently became addicted to this drug. In 1988, Polotzola came under the care of Dr. Louis Cenac, a Baton Rouge psychiatrist. Under Dr. Cenac's care, Polotzola was admitted to CPC Meadow Wood Hospital for treatment of his Xanac addiction. During his stay at CPC Meadow Wood, both Polotzola's wife and his mother voluntarily attended group therapy sessions conducted by a board certified social worker, Gary Smith, who was assigned to Polotzola's professional team by Dr. Cenac.

Despite two shoulder surgeries in 1987, Polotzola claimed he was still unable to lift anything with his right arm by the time of trial, although he could write with that hand. In addition, he still complained of dizziness, headaches, and ringing in the ears. His wife testified that he was still very disoriented and suffered short term memory loss, although his mental condition seemed to have "improved slightly" during the time he had not been taking Xanac.

Polotzola filed suit in June 1988 under the Federal Employer's Liability Act. He alleged that defendants were negligent in failing to provide him with a reasonably safe place in which to work, specifically asserting defendants' negligence in maintaining and inspecting the wooden walkway where he fell. He further claimed that because of improper treatment for his original injuries, he suffered diminished earning capacity and will continue to suffer mental and physical anguish. He sought $750,000.00 in damages plus interest and costs. After trial held May 1991, the jury found that Polotzola had indeed sustained personal injuries while on the job on the day of the accident, but that Missouri Pacific Railroad d/b/a Union Pacific Railroad was not negligent in failing to provide him with a safe place to work. The trial court entered judgment in favor of defendants and dismissed Polotzola's suit.

On appeal, Polotzola presents four assignments of error challenging several of the trial court's evidentiary rulings. He further argues that the jury's verdict was contrary to the great weight of the evidence and F.E.L.A.'s "safe place to work" standard.

ADMISSION OF MEDICAL RECORDS (Assignments two and four):

Polotzola first argues that the court erred in admitting his medical records from CPC Meadow Wood, specifically the social worker's report which contains references to alcoholism, wife beating, and his arrest and guilty plea on a marijuana charge.

On direct examination, Mrs. Polotzola testified that her husband drank before the accident, but that she did not believe he had a drinking problem or consider him to be an alcoholic. When asked if Polotzola ever got into "difficulties" with others because of his drinking, she stated that he might have gotten into an argument, but it wouldn't have been because of his drinking.

During cross-examination, Mrs. Polotzola stated that both she and her husband drank; she wasn't sure if he was drinking too much, but indicated there was no problem "as long as he didn't beat me and beat my kids[.]" She further testified that she had occasionally left her husband for short periods of time prior to his accident; these brief separations were not, however, in response to her husband's excessive drinking. At this point, defense counsel sought to introduce Polotzola's medical records from CPC Meadow Wood, specifically the report *906 of the social worker with whom Mrs. Polotzola had attended a group session. After argument held outside the jury's presence, the trial court overruled plaintiff's objection to introduction of the records.

Defense counsel then resumed cross-examination of Mrs. Polotzola in front of the jury. Mrs. Polotzola admitted telling the social worker that her husband's drinking had gradually increased over the years following their marriage but prior to his accident, and that the hours of his job as a bridge tender were ideal for an alcoholic. She further admitted that Polotzola sometimes went straight from work to a local bar and that they had "frequent alcohol related fights." She also told the social worker that alcohol made her husband mean and "very picky" and that he was very defensive about his alcohol use.

Mrs. Polotzola admitted that most of their marital separations were alcohol related. Although she had testified on direct examination that her disagreements with her husbands never reached the point at which she contemplated divorce, she admitted she had filed for separation in 1978, alleging cruel treatment. She stated that the allegation of cruel treatment was made on her lawyer's recommendation, but admitted that her husband had fired a pistol in the direction of her and their small child.

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Cite This Page — Counsel Stack

Bluebook (online)
610 So. 2d 903, 1992 WL 358333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/polotzola-v-missouri-pacific-r-co-lactapp-1992.