Tamplain v. Collinswood Poultry Co.

279 So. 2d 277, 1973 La. App. LEXIS 5848
Louisiana Court of Appeal·Decided June 5, 1973·No. No. 5302·Published·Cited by 3 cases

Opinion

STOULIG, Judge.

Plaintiff, Robert V. Tamplain, was injured in a three-car collision on June 27, 1969, at the intersection of U.S. Highway 61 and Louisiana State Highway 53 near Reserve, Louisiana. A jury awarded him $33,187.35 against defendants Collinswood Poultry Company and its insurer, United States Fidelity and Guaranty Company. Of this amount, $30,000 was given for pain and suffering. The trial court rendered judgment in conformity with the verdict. In refusing to grant defendants a new trial, or alternatively, a remittitur, the trial judge stated he thought the quantum was excessive, but also expressed a reluctance to disturb the jury verdict. Defendants have appealed, seeking a reversal of that part of the judgment casting them for $30,000 damages for pain and suffering. Thus the only issue before us is whether the award was excessive.

[278] The record reflects that the plaintiff was taken to the hospital immediately after the accident. His injuries were diagnosed as a fracture of the second and third ribs on the anterior right side, a laceration of the lower lip requiring ten sutures and of the upper lip requiring two sutures, and a fracture of the right upper central incisor tooth. At that time he complained of pain in the right chest. His treating physician, Dr. Robert Albrecht, hospitalized the plaintiff for four days as a precautionary measure, explaining that fractured ribs often cause lung complications requiring immediate attention. However, lung problems never resulted.

After his discharge from the hospital, Mr. Tamplain was seen by Dr. Albrecht seven times on an outpatient basis between July 2 and August 11, 1969. On his last visit he was discharged from further treatment.

On August 29, 1969, plaintiff consulted Dr. Joseph Padua, a general practitioner to whom he was referred by his attorney. Despite thorough tests and examination, Dr. Padua made no objective findings in connection with plaintiff’s complaints. With respect to the injuries previously described, Dr. Padua diagnosed the complaints as “residual subjective symptoms,” indicating that plaintiff had recovered with no objective evidence of residual disability.

One of the injuries plaintiff alleged he sustained in the accident was a pain in the right elbow of which he first complained to Dr. Albrecht more than one month after the accident. On his first visit to Dr. Pa-dua he said he experienced pain in the right elbow but Dr. Padua could not determine the source. Plaintiff did not return to Dr. Padua until April 6, 1970, and his complaints still included the elbow pain. Again Dr. Padua’s findings were negative but he did refer plaintiff to an orthopedist for further evaluation. Plaintiff failed to consult the orthopedist as his doctor had advised.

It appears from the medical evidence that the fractured ribs and lacerated lips healed within two months after the accident and that the fractured incisor was capped in August, 1969. Plaintiff lost six weeks of work during his recuperation.

The existence of the elbow pain was never confirmed by any objective findings. The unexplained actions of Mr. Tamplain in not reporting this alleged pain to the treating physician until more than one month after the accident, coupled with his failure to consult an orthopedist when the pain allegedly persisted, makes suspect this subj ective complaint.

The complaint of prolonged and severe headaches forms the principal basis of plaintiff’s claim for damages. We find he has failed to adduce adequate proof of this condition to preponderate in favor of the conclusion that he actually experienced these headaches to the extent claimed and that they are causally connected to the accident.

Plaintiff testified: “I had headaches — • not just normal headaches — but they did bother me so much that at night I would have trouble sleeping.” At the time of the . trial nearly two years after the accident he told the court he was still experiencing severe headaches. He stated:

“ * * * [T]he headaches are as right from the beginning [when] I complained to Dr. Albrecht when I was in there about headaches. And they have —I have had trouble with the headaches from then all the way till this very moment. I’ve had headaches that occasionally get real severe from time to time. I may even [go] for a period of three or four days — where I get by without it. It sort of eases off, but it’s just about an every day affair.”

When asked if he had ever had one total month’s peace of mind from these headaches, plaintiff replied, “No never, maybe a day or two.”

[279] After he was discharged by Dr. Al-brecht, plaintiff claimed he was still experiencing the intense headaches and this is primarily why he consulted Dr. Padua. The medical evidence contradicts plaintiff’s testimony. We observe that Dr. Padua did not note plaintiff complained of headaches when he examined him on August 29, 1969. Considering the fact plaintiff stated he consulted Dr. Padua primarily because he could not get relief from the headaches, we find this omission strange and question whether plaintiff did in fact make such a complaint. According to Dr. Padua’s records, it was not until the April, 1970 visit that plaintiff complained of headaches. In June, 1970 plaintiff was hospitalized for two days to have tests run and X rays made to determine the source of the headaches. All tests were normal other than a shadow on the skill X ray that the radiologist thought could possibly be a granuloma tumor. Dr. Padua was not concerned about this and discharged plaintiff.

Finally, plaintiff consulted Dr. Homer Kirgis, a neurosurgeon affiliated with Ochsner Foundation Hospital, more than 18 months after the accident and more than eight months after completing the tests ordered by Dr. Padua. Dr. Kirgis testified the headaches could have resulted from a brain concussion caused by the accident. He explained that complaints of headaches generally subside within several months to one year after such a blow but he verified plaintiff could legitimately experience headaches for a longer period. X rays taken at Ochsner did not show the shadow on the skull that could have been a granuloma tumor.

Dr. Kirgis’ evaluation is necessarily based on the history related by plaintiff. What destroys the probative value of his testimony is that plaintiff gave the jury one set of facts and Dr. Kirgis, another. For comparison purposes we quote the neurosurgeon’s testimony about the history he received from plaintiff:

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Tamplain v. Collinswood Poultry Co., 279 So. 2d 277, 1973 La. App. LEXIS 5848 (La. Ct. App. 1973).

279 So. 2d 277 (Tamplain v. Collinswood Poultry Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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