Pritchett v. Duvernay

552 So. 2d 423, 1989 La. App. LEXIS 1730, 1989 WL 119641
CourtLouisiana Court of Appeal
DecidedOctober 12, 1989
DocketNo. 88-CA-2386
StatusPublished

This text of 552 So. 2d 423 (Pritchett v. Duvernay) 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
Pritchett v. Duvernay, 552 So. 2d 423, 1989 La. App. LEXIS 1730, 1989 WL 119641 (La. Ct. App. 1989).

Opinion

SCHOTT, Chief Judge.

In a collision between a van and a motorcycle on March 29, 1978, the motorcycle was thrown out of control. It struck plaintiff who was loading something into the trunk of an automobile parked nearby. Defendants, who are the owner, driver, and insurer of the van, appealed and plaintiff answered the appeal; both sides, complaining about the quantum of damages.

According to plaintiff the motorcycle struck him on his low back and the backs of his knees and ankles. He was taken to Charity Hospital for emergency treatment and, on April 14, 1978, consulted Dr. Bruce Iteld, an internist. Plaintiff was complaining of pain into his right knee, right thigh, and groin area. After examination Iteld diagnosed a groin sprain or strain and a problem with the right knee. He prescribed semi-weekly physical therapy treatments in his office.

Until October, 1979, plaintiff was under Iteld’s care, seeing him monthly and having regular therapy treatments. In the meantime, plaintiff, on June 30, 1978, consulted Dr. John Watermeier, an orthopedist, complaining about pain and weakness of his right knee. Watermeier diagnosed his condition as an internal derangement of his right knee or a chondromalacia type of injury involving the cartilage. Initial treatment consisted of injection into the knee with cortisone and a local anesthetic to relieve pain and reduce swelling. Plaintiff continued to be treated by both Iteld and Watermeier for his right knee, but there is no mention in the physicians’ records of any problem with his left knee until January 12, 1979 when Watermeier noted that he complained of pain in both knees “again”. Then on January 17 Iteld noted that “his knees” were better in contrast with previous notes which mentioned the right knee only.

In March, 1979, Watermeier performed arthroscopies on both knees and found a severe amount of chondromalacia in the right knee, a mild to moderate amount of chondromalacia in the left knee, and a fraying or tear of the meniscus in the left knee. He described chondromalacia as a degeneration of the cartilage under the patella or kneecap. Second arthroscopies performed in May, 1980, revealed a moderate amount of chondromalacia in the right knee, a mild amount in the left knee, and a meniscus tear in the left knee. Watermeier performed a meniseetomy on the left knee in July, 1980, removing the meniscus and the cartilage under the patella. Watermeier estimated a ten to fifteen percent permanent disability of the left knee. He did not rule out future surgery on the right knee, but did not think it was probable. He thought that plaintiff’s condition would deteriorate and attributed a fall plaintiff had in a supermarket in July, 1982 to his condition, explaining that persons who have surgery as plaintiff had on his left knee are susceptible to such falls.

The case was tried to a commissioner whose report was adopted by the trial judge. The court found that plaintiff suffered injury to his right knee and ankle and would have to undergo additional medical treatment and surgery in the future. The court specifically found that the evidence was insufficient to support plaintiff’s claim that he suffered injury to the left knee. The court awarded the following to plaintiff:

Past Medical Expenses $ 5,422.38
Future Medical Expenses 5,000.00
Loss of Earnings 15,000.00
General Damages 45,000.00
TOTAL $70,422.38

In their appeal, defendants contend that the trial court erred in awarding anything [425]*425for future medical expenses and abused its discretion in awarding $45,000 for general damages. In his answer to the appeal, plaintiff contends that the trial court erred in finding that his evidence was insufficient to prove his left knee injury was caused by the accident; in failing to compensate him adequately for loss of future earnings and diminution of future earning capacity; and in failing to award the full amount of his past medical expenses. Further, he contends that the trial court abused its discretion in the award for general damages. Finally, he seeks damages for a frivolous appeal by defendants.

The first question is whether the trial court committed manifest error in finding that the evidence did not support plaintiff’s claim of injury to his left knee. The case was tried in November, 1984, and the commissioner did not submit a report until September 5, 1986. Included in the recommended award is the fee of Dr. Louis Levy whose involvement was with the left knee only. In the report, the commissioner found that it was not until January 12, 1979 that plaintiff complained of his left knee. This is manifestly erroneous. Dr. Watermeier’s January 12 note says that plaintiff was complaining again about both knees. Watermeier interpreted the note to mean that he did complain about the left knee previously even though his and plaintiffs attention had been focused on the right knee. Watermeier testified that the plaintiffs problems with both knees were related to the accident and that, in the absence of an intervening trauma between the accident and the symptoms, he would have to assume that the accident was the cause. The record is devoid of any suggestion that he suffered such a trauma. Finally, while Watermeier acknowledged the possibility that plaintiffs chondromalacia in both knees pre-existed the accident, the evidence of plaintiffs extensive and strenuous physical activity and exercise before the accident dispels this possibility. The combination of the trial court’s error in finding that plaintiff made no complaint about his left knee until January, 1979 and in failing to evaluate properly and accurately the testimony of Dr. Watermeier on causation led the court to reach a manifestly erroneous factual conclusion. Consequently, we are compelled to adjust the award to compensate plaintiff for his left knee injury along with his other injuries.

The trial court awarded plaintiff $15,000 for loss of earnings. Plaintiff argues forcefully that he is entitled to substantial sums for lost past and future earnings. He produced an economist who concluded that plaintiff was entitled to $157,-385 for past earnings based upon an annual salary of $27,820 for the six and two-thirds years between the accident and the trial; and to $798,558 for lost future earnings based upon annual earnings of $43,714 for twenty-six years, the estimated work life of plaintiff. These projections are not supported by the evidence. At best, plaintiff’s work record was spotty before the accident. He had tried being a longshoreman, a pest control operator and a tennis instructor. The economist assumed he was doing all these things and would continue to do so. However, his actual income as reported to the Internal Revenue Service for the first quarter of 1978 was only $2,600. Except for the time when plaintiff had and was recovering from the menisectomy, he was never totally disabled. In fact, he worked at various jobs before the trial as a pest control operator, a times share real estate salesman, an insurance salesman and a siding salesman. Because of plaintiff’s failure to prove that he had earned anything more before the accident than he was earning afterwards, we are unable to conclude that the trial court erred in awarding little for loss of past earnings.

Plaintiff’s claim for loss of future earnings rests on the assumption that he would become a longshoreman and earn $54,000 annually.

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552 So. 2d 423, 1989 La. App. LEXIS 1730, 1989 WL 119641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pritchett-v-duvernay-lactapp-1989.