Williams v. Diehl

625 So. 2d 251, 1993 La. App. LEXIS 2913, 1993 WL 392018
CourtLouisiana Court of Appeal
DecidedSeptember 28, 1993
DocketNo. 93-CA-285
StatusPublished

This text of 625 So. 2d 251 (Williams v. Diehl) 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
Williams v. Diehl, 625 So. 2d 251, 1993 La. App. LEXIS 2913, 1993 WL 392018 (La. Ct. App. 1993).

Opinion

GOTHARD, Judge.

The plaintiff, Kenneth Williams, appeals the amount of his jury award for injuries incurred in an automobile accident. He also appeals the court’s casting him for costs of a jury venire.

The accident took place on November 15, 1988, on a stretch .of River Road between Norco and Destrehan where Delta Asphalt, Inc. was resurfacing and widening the road. The eastbound lane had been closed, with flagmen at each end of the westbound lane regulating traffic east and west on that lane. No flagmen were posted at the side streets. Williams’ vehicle was struck in the rear by Dennis Diehl when a driver entered from a side street and proceeded against traffic. Eastbound vehicles were forced to stop suddenly, and Diehl drove into the rear of Williams’ vehicle. Williams was injured, primarily in the lower back, and eventually had [253]*253a laminectomy. He still complains of pain and his physician has recommended further surgery.

The appellant filed suit timely against Dennis Diehl, Delta Asphalt, State Farm Insurance Company, Diehl’s insurer, and Automotive Casualty Insurance Company, Williams’ uninsured motorist carrier. A three-day jury trial, beginning on October 20, 1992, resulted in a verdict in favor of the plaintiff, finding Diehl to be 80% at fault and Delta Asphalt to be 20% at fault. The jury’s itemized award was in the amount of $16,-890.69. On November 6, 1992, the court signed a judgment adopting the jury’s verdict and apportioning the award and court costs between the defendants. On February 17, 1993, after hearing a rule to show cause, the trial judge signed an additional judgment assessing $2,407.00 in jury costs against the plaintiff for the venire called for a trial date that was continued at the plaintiffs request. The plaintiff has appealed both judgments.

The plaintiff raises the following issues: 1) whether the court erred in refusing to grant a mistrial; 2) whether the jury erred in failing to find a causal connection between the continuing back injury and the accident of November 15, 1988; 3) whether the award was clearly inadequate and erroneous; and 4) whether the trial court erred in assessing costs of the May 26,1992 jury venire against the plaintiff.

Refusal To Grant Mistrial

At the time of the accident Williams was 37 years old and had worked for construction companies as a heavy machinery operator. He had piloted helicopters in Vietnam during 1970-72 and had been treated at Veterans Administration hospitals for post-traumatic stress disorder and for alcohol abuse. He opposed the production of his hospital records on grounds that the opposing counsel’s use of the records at trial prejudiced him in a manner that could not be cured by the court’s admonition. The specific objection referred to statements that the plaintiff was “homeless” and had “received alcohol treatment several times.”

A trial judge is vested with broad discretion to grant a motion for mistrial, but only if no other remedy would afford relief or where justice would not be done if the trial were continued. Burks v. McKean, 559 So.2d 921 (La.App. 2nd Cir.), unit denied, 566 So.2d 398 (La.1990). In this case, one of the plaintiffs physicians, as well as the plaintiff himself, testified that he had had a problem with alcohol. The trial judge instructed the jury at length about the two statements, explaining that “homeless” referred here to a specific Veterans Administration (hereafter “V.A.”) program, and that the mere fact that a person has received treatment does not make him an alcoholic. The judge stated further that neither statement was relevant to the issues of the case. He also deleted those pages of the V.A. Hospital records that referred to alcohol abuse treatment.

We conclude that the trial judge’s explanation to the jury was adequate and that he did not abuse his discretion in denying the plaintiffs motion for new trial.

Causal Connection and Quantum

The plaintiffs counsel assumes from the minimal damage award that the jury found no causal relationship between the accident on November 15, 1988, and the subsequent ruptured disk, for which he had surgery on April 18, 1989. She seeks to have the award overturned and suggests that the plaintiff is entitled to $977,354. The defendants take the position that the record supports a finding that the plaintiff incurred no more than a soft tissue injury which resolved in a short time; the ruptured disk must have resulted from an intervening incident. From testimony and V.A. records, we have gleaned the following medical history.

In 1970-1972, Williams served in Vietnam, was in two helicopter crashes, and was shot in the leg. In 1985, he hurt his shoulder, leg and back when he fell from a bulldozer. In October, 1986, he underwent surgery for a perforated disk in the lumbar spine after lifting a heavy air conditioner, but returned to work in heavy construction within about seven months. He reported to the V.A. Hospital in New Orleans on August 3, 1988, complaining of intermittent low back pain, which he said he had experienced since the 1986 surgery. On October 15, 1988, a V.A. orthopedist examined him and scheduled [254]*254nerve conduction studies of both legs, but the November 15 accident intervened.

After the accident Williams was taken by ambulance to the V.A. Hospital emergency room. He testified that he left after waiting six hours without seeing a doctor. On the next day, November 16, he consulted Dr. Stewart Altman, a general surgeon, whose impression was that the plaintiff had a cervical spine sprain, a severe lumbosacral sprain, and a possible herniated disk. He treated him conservatively with medication for pain and muscle relaxers and with TENS therapy at his office. Dr. Altman discharged him to light duty on December 12 and to full duty on January 30, 1989, telling him to return if the symptoms recurred. Two months later, on April 3, Williams returned to Dr. Altman, complaining of gradually worsening pain in his back radiating into his hips, and numbness in the thighs. Dr. Altman found spasm in the lumbosacral area and a positive straight leg raising test bilaterally. The doctor advised him to be reevaluated by an orthopedist, as he might have a herniated disk at the L-5/S-2 level.

Williams was examined by Dr. Vaclav Hamsa on April 6,1989. A lumbar myogram and CT Scan showed a “very dramatic disk rupture” in the mid-line and to the left at level L-4, L-5. Dr. Hamsa performed a laminectomy on April 18 and released him for suitable employment on August 28, 1989. Dr. Hamsa testified that it was rare for a person with a second laminectomy to return to operating heavy equipment because of the requirements of the work (i.e., walking on uneven ground and climbing on and off heavy equipment). He suggested rehabilitation or a supervisory job in heavy construction. He commented that Williams is very strong and could lift up to 45 pounds occasionally and climb, stoop, and bend, but not on a prolonged basis. He estimated the impairment of Williams’ body to be 10% because of the two surgeries. The record contains no reference to efforts of the plaintiff toward rehabilitation or retraining.

In March 1990, Williams consulted Dr. Stewart Phillips, an orthopedic surgeon, because of persistent, moderate back pain radiating into the hips and thighs. Dr. Phillips determined from an MRI that “an extra piece of disk had pressed out and was pressing on a nerve.” He explained that laminec-tomy has a failure rate of 20%, and in Williams’ case a fusion was necessary. Dr.

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Bluebook (online)
625 So. 2d 251, 1993 La. App. LEXIS 2913, 1993 WL 392018, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-diehl-lactapp-1993.