Shamsnia v. United Services Automobile Ass'n

701 So. 2d 1051, 97 La.App. 5 Cir. 399, 1997 La. App. LEXIS 2479, 1997 WL 665021
CourtLouisiana Court of Appeal
DecidedOctober 28, 1997
DocketNo. 97-CA-399
StatusPublished
Cited by3 cases

This text of 701 So. 2d 1051 (Shamsnia v. United Services Automobile Ass'n) 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
Shamsnia v. United Services Automobile Ass'n, 701 So. 2d 1051, 97 La.App. 5 Cir. 399, 1997 La. App. LEXIS 2479, 1997 WL 665021 (La. Ct. App. 1997).

Opinion

JiDUFRESNE, Judge.

This is an appeal by' Morteza Shamsnia, plaintiff-appellant, from an adverse judgment in this automobile rear-end collision case. The jury found that Maxine Barrocas, defen[1052]*1052dant-appellee, was negligent in running into the rear of plaintiffs car, but further found that the accident was not the cause of plaintiffs lower back problems. Because we find no manifest error in the jury’s factual deter-minátion that plaintiffs spinal difficulties were not caused by the incident, we must affirm the judgment.

Plaintiff urges here that the jury was simply wrong in finding no connection between the accident and his lower back problems. Because this is a factual issue, the applicable standard of review is whether the finding was manifestly erroneous or clearly wrong. In Stobart v. State through DOTD, 617 So.2d 880 (La.1993), the court reiterated that application of the manifest error standard involves a two |2part inquiry for reversal of a factual finding. The reviewing court must first determine that a reasonable factual basis does not exist for the trial court finding. The court must then further determine that the entire record establishes that the finding is clearly wrong. Also, when there is conflicting evidence, the fact-finder’s reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the reviewing court may have made other choices had it been sitting as the trier of fact, Id. Finally, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly wrong, Id.

The evidence presented at trial was as follows. The accident occurred in the left westbound lane of 1-10 just west of the 1-10 and 1-610 merge in Jefferson Parish, on the down side of the Oaklawn overpass. It was at about 5PM on a weekday, and the investigating officer testified that there was typical rush-hour traffic at the scene. Plaintiffs version of the accident was that traffic was flowing at about 40 MPH when the ear in front of him slowed. He said that he touched his brakes and slowed down a bit. He looked in his rear view mirror and observed that Barrocas was not paying attention, had not slowed down, and was obviously going to hit him in the rear. At that moment, the car in front of him sped up and was pulling away, so he released his brakes, reasoning that the impact would not be so severe if his car moved forward when struck. After impact his car continued to move forward a bit and he applied the brakes again and stopped. His rear bumper was bent and a tail light was broken, but there was ^apparently no other damage to the car. Plaintiff said he observed that defendant’s front grille was damaged and he thought that her radiator was leaking.

A passenger with plaintiff, Bahram Khoob-ehi, testified similarly. This witness said that they were traveling 30-40 MPH and slowed to 20-30 MPH right before the impact. He further noted that defendant had to be traveling faster than they, or otherwise the accident could not have happened. He saw plaintiffs bent bumper and defendant’s damaged grille, and also thought that her radiator was damaged.

Defendant gave a quite different version of the incident. She said that the traffic was bumper-to-bumper and stop-and-go, as it typically is during rush hour. She testified that she could also see what appeared to be an accident about a half mile farther on in the left lane. She said that she had her foot on the brake and when plaintiffs car crept forward she would simply release the brake and her car would move forward because of the down-slope of the overpass. Just before the impact she said that she looked over her right shoulder to see if she could safely move into the center lane, and her foot came off of the brake. At that point her car rolled forward and struck plaintiffs car, which she believed was then stopped. She noted only that plaintiffs tail light was broken and that her grille was damaged, but she denied that the radiator was punctured.

Plaintiff told the investigating officer at the scene that he was not injured, but testified that later that night he began suffering back pains which persisted for several days and then gradually diminished. |4He noted, however, that he had developed a numbness on the inside portion of his right foot and his big toe, and still had residual pain in his hip and back. Plaintiff is a neurologist affiliated with a major medical center, and conducts between 700 and 1,000 EMG tests per year. He testified that because of his expertise, he knew that there was probably some nerve [1053]*1053problem causing the numbness. Some nine days after the accident, on July 21, 1993, he consulted with an associate neurologist, Dr. Elizabeth Bouldin.

This physician testified that on examination she found right paraspinous muscle spasms, and also noted weakness in the right big toe with some sensory loss in that toe and along the inside of the foot. Ankle reflexes were weak, but symmetrical. Her impression at the time was radiculopathy, possibly involving an L5-S1 disc, with a history of abrupt onset after trauma. She further stated that although the tests for the weakness and numbness in the toe and foot were to a large extent subjective, i.e. dependent on what the patient said he felt, she also thought that there was an objective element in these findings. No medications were prescribed, but an EMG and MRI were recommended. The MRI was done on July 26, 1993, but she never saw the result of this test, which was originally interpreted as being normal, and never treated plaintiff again.

During the following eleven months, plaintiff did not see any other doctor. Instead, he used over-the-counter medications and samples of some prescription drugs which were available to him because of his position at the medical center to treat his alleged discontinuing pain. On June 27, 1994, he had an EMG done. The results of this tests were deemed normal, except for an abnormality in the tibialis anterior muscle, which finding was interpreted as a SI nerve’ root problem.

Two months later, on August 31, 1994, plaintiff saw Dr. Wilmot Ploger, an ortho-paedic surgeon, and the only treating physician with whom he had no personal or professional relationship. Plaintiff related the history of his problems, including the impressions of Dr. Bouldin, and related also that the recent EMG was positive for SI radiculo-pathy. Dr. Ploger took x-rays which showed a narrowing of the lumbosacral disc spaces, probably related to the aging process, but which were otherwise normal. Straight leg raising test was normal as were reflexes, and no muscle weakness was found. This exam was basically normal.

On September 16,1994, plaintiff again saw Dr. Ploger, and the examination was unchanged from the previous visit. Another MRI disclosed no problems which would explain plaintiffs symptoms. On neither of these visits did the doctor check for sensory loss in the toe and foot.

Some eight months later, on May 24,1995, plaintiff returned to Dr. Ploger complaining of continuing pain. Straight leg raising test was still negative and reflexes were equal. However, there was some decreased sensation in the big toe and some sensory loss, with tenderness in the lower back. The symptoms were described as subjective complaints. During the three visits, Dr. Ploger did not seejjthe first EMG study, or the one made after his last visit with plaintiff, but before trial. He did testify, however, that he had heard other physicians describe these tests during their trial testimony.

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701 So. 2d 1051, 97 La.App. 5 Cir. 399, 1997 La. App. LEXIS 2479, 1997 WL 665021, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shamsnia-v-united-services-automobile-assn-lactapp-1997.