Vanderkooi v. Sewell

718 So. 2d 604, 1998 La. App. LEXIS 2588, 1998 WL 646848
CourtLouisiana Court of Appeal
DecidedSeptember 23, 1998
DocketNo. 31034-CA
StatusPublished

This text of 718 So. 2d 604 (Vanderkooi v. Sewell) 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
Vanderkooi v. Sewell, 718 So. 2d 604, 1998 La. App. LEXIS 2588, 1998 WL 646848 (La. Ct. App. 1998).

Opinion

JjMARVIN, Chief Judge.

In this action for damages arising out of plaintiffs’ automobile being rear-ended by another vehicle, the plaintiffs, husband and wife, appeal, seeking to increase the award based on a jury verdict.

The judgment awarded Elizabeth Vander-kooi $20,000 general damages and past medical expenses of $11,649, subject to a credit of $10,682 paid by defendants, for a net special damage award of $967. Plaintiffs ask us to increase Mrs. Vanderkooi’s general damage award and to award her future medical expenses and to make a loss of consortium award to Mr. Vanderkooi.

Finding no clear abuse of the jury’s discretion on our review of the evidence in the light that most favorably supports the jury verdict, we affirm. See and compare Gladney v. May, 29,373 (La.App. 2d Cir.5/7/97), 697 So.2d 1022, writ denied; Wood v. Toys “R” Us, Inc., 28,667 (La.App. 2d Cir.9/25/96), 681 So.2d 49; and Phiratsamy v. Pipes, 27,209 (La.App. 2d Cir.8/23/95), 660 So.2d 172.

FACTS

Mrs. Vanderkooi, alone in her Chevrolet van, stopped at a stop sign at a Shreveport intersection. Sewell, in his employer’s three-ton truck, initially stopped behind the van but drove slowly forward into the rear of the van on the mistaken assumption that it was entering the intersection ahead of him. Se-well and his employer, Paul Lashley Supply Co., have not appealed that part of the judgment that finds Mrs. Vanderkooi free of fault.

Injuries

Mrs. Vanderkooi, the 34-year-old wife of an Air Force staff sergeant and working mother of a two-year-old child at the time of the accident, suffered immediate neck, back and shoulder pain which became chronic in spite of prompt medical and chiropractic treatment. She also developed headaches, insomnia andj^fatigue, all of which her doctors associated with the injuries she suffered in the accident.

In addition to these injuries, Mrs. Vander-kooi developed left hip bursitis and cárpal tunnel syndrome in her right wrist after the accident. These conditions were not causally tied to the accident by the medical evidence in this record.

[606]*606 Medical Treatment

Mrs. Vanderkooi’s accident-related symptoms appeared to worsen with chiropractic treatment in the first month after the accident, February 1995, and did not improve with drug and physical therapy treatment respectively prescribed by her internist in March and by her orthopedist from March-May.

In May 1995, about four months after the accident and on referral by her orthopedist, Mrs. Vanderkooi began seeing a rheumatolo-gist, Dr. Pressly, who diagnosed her with a “fibromyalgia-like syndrome” involving chronic muscular pain at various “trigger points” throughout the body, though not enough for her to be formally diagnosed with fibromyalgia, which requires at least 11 trigger points out of a possible 18.

According to Dr. Pressly, the number and location of a patient’s trigger points are objectively verifiable: the patient “hits the ceiling ... [when] you push on them. They actually have what’s known as a jump sign, and so this is an objective test for disorders like this.” On most of her 15 visits to Dr. Pressly from 1995-1997, Mrs. Vanderkooi had between three and five trigger points in her neck, back and shoulders. The number occasionally increased to eight or more, once in May 1995 and again in May 1997.

In December 1995, Mrs. Vanderkooi underwent MRI examinations of the cervical, thoracic and lumbar spine which revealed no disc abnormalities. She ftcontinued her treatment with Dr. Pressly thereafter and was still seeing him at the time of trial in August 1997.

Daily Activities

Mrs. Vanderkooi continued her full-time job as an administrative assistant for about a year after the accident. Notwithstanding her testimony that her injuries from the accident caused her to work more slowly and in pain, Mrs. Vanderkooi never took time off from work because of her pain, even when she was “real sore and very stiff’ in the first week after the Friday afternoon accident. The only work time she missed was for her medical appointments. A part-time clerical worker who worked closely with Mrs. Van-derkooi observed that Mrs. Vanderkooi appeared to be working in pain after the accident but recalled no specific work tasks or duties that Mrs. Vanderkooi was unable to perform.

In September 1995, Mrs. Vanderkooi reported to Dr. Pressly continuing upper back pain which disturbed her sleep, saying she had “minimal time to relax [because] she went straight from work to soccer practice and was home at about [8:00 p.m.]. At that point she fixed dinner, ... had [her son] take [his] bath and ... put [him] to bed.” Our brackets. Dr. Pressly recommended that she begin a regular exercise program such as walking and that she “consider performing some hobbies to try and reduce the stress that she had in her life.” He repeated these recommendations on subsequent visits.

Notwithstanding Mrs. Vanderkooi’s testimony that walking was one of her hobbies before the accident, her walks became shorter and less frequent after the accident. She told the jury, “I have to go slower [now] because if I don’t, it aggravates my back.”

| Second Pregnancy

In early 1996, about a year after the accident, Mrs. Vanderkooi became pregnant with her second child and stopped using all prescription medication until after the birth of her son in November 1996, taking only Extra Strength Tylenol for her pain. She continued to see Dr. Pressly, albeit less frequently, during 1996, presenting with three trigger points in the neck, back and shoulders in April and six in August. Dr. Pressly opined that the hormonal changes associated with pregnancy may have helped Mrs. Vanderkooi tolerate the pain without prescription drugs. Mrs. Vanderkooi testified she experienced some relief of her symptoms while she was pregnant, as Dr. Pressly expected, but said she continued to have “good days and bad days.”

Mrs. Vanderkooi lost her job around the time she became pregnant, apparently for reasons unrelated to the accident. The decrease in her activity level also caused her to feel better, at least initially, according to Dr. Pressly’s notes of the April 1995 visit.

[607]*607In the fall of 1996, when Mrs. Vanderkooi was eight months pregnant, she and her family traveled by car to Wisconsin to attend a family wedding, a distance of more than 900 miles each way, notwithstanding Mrs. Vanderkooi having repeatedly told her doctors that prolonged sitting made her pain worse. Mrs. Vanderkooi used a special back cushion during the long drive and said she made the trip only “with the stipulation that we had to stop every hour to allow me to walk.”

While driving on a Wisconsin highway, Mr. Vanderkooi swerved the van in an unsuccessful attempt to avoid hitting a deer. The impact damaged the van’s front right quarter panel and light assembly, according to Mr. Vanderkooi. Mrs. |5Vanderkooi said she suffered no ill effects from the impact, explaining that the deer was “very small ... it was like hitting a dog.”

The Vanderkoois drove to Wisconsin again in July 1997, about a month before trial, to allow an elderly relative to see their infant son. On her July 22 visit to Dr. Pressly, Mrs.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Wood v. Toys" R" US, Inc.
681 So. 2d 49 (Louisiana Court of Appeal, 1996)
Phiratsamy v. Pipes
660 So. 2d 172 (Louisiana Court of Appeal, 1995)
Gladney v. May
697 So. 2d 1022 (Louisiana Court of Appeal, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
718 So. 2d 604, 1998 La. App. LEXIS 2588, 1998 WL 646848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vanderkooi-v-sewell-lactapp-1998.