Tamatha Faul v. Louis Robinson, Allstate Insurance Company, and State Farm Mutual Automoblile Insurance Company ( 2020 )


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  •                               STATE OF LOUISIANA
    COURT OF APPEAL
    FIRST CIRCUIT
    2019 CA 1450
    TAMATHA FAUL
    VERSUS
    LOUIS ROBINSON, ALLSTATE INSURANCE COMPANY, AND STATE
    FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
    JUDGMENT RENDERED:       DEC 16 2020
    Appealed from the
    Nineteenth Judicial District Court
    In and for the Parish of East Baton Rouge • State of Louisiana
    Docket Number C651273 • Division " 25"
    The Honorable Wilson E. Fields, Judge Presiding
    Marcus J. Plaisance                                     ATTORNEYS FOR APPELLANT
    Mark D. Plaisance                                       PLAINTIFF— Tamatha Faul
    Prairieville, Louisiana
    Brian J. Prendergast
    Joseph R. Cataldie
    Baton Rouge, Louisiana
    Matthew L. Mann                                         ATTORNEYS FOR APPELLEES
    Kellye R. Grinton                                       DEFENDANTS— Allstate
    Kirk D. Pfefferle                                       Insurance Company and Louis
    Beau C. Garon                                           Robinson
    Baton Rouge, Louisiana
    Michele Trowbridge Barreca
    New Orleans, Louisiana
    BEFORE: MCCLENDON, WELCH, AND HOLDRIDGE, JJ.
    Cah CU iz S
    WELCH, J.
    The plaintiff, Tamatha Faul, appeals a judgment rendered in accordance with
    a jury     verdict,   as   well    as   a judgment        denying    a     motion    for judgment
    notwithstanding the verdict and alternative motion for new trial, after the jury
    found that she was not injured in a motor vehicle accident. We affirm.
    FACTUAL AND PROCEDURAL HISTORY
    The accident at issue occurred on September 19, 2015, when the 2016 BMW
    X4 owned and operated by Lawrence Faucheaux, was rear- ended by a 2002
    Chevrolet Suburban owned and operated by the defendant, Louis Robinson.                       Mrs.
    Faul was a guest passenger in the backseat of the BMW,                              along with her
    stepdaughter Kelly Faucheux, Mr. Faucheux' s wife. Mrs. Faul' s husband, Robert
    Faul, was a guest passenger in the front seat.            The Faucheuxes and Fauls had left
    the Faucheux residence and were in bumper -to -bumper LSU football game -day
    traffic on Gardere Lane in Baton Rouge when Mr. Robinson' s suburban struck the
    BMW from the rear.         Mr. Faucheux and Mr. Robinson' s vehicles were insured by
    Allstate Insurance Company (" Allstate").
    Mrs. Faul filed the instant suit against Mr. Robinson, Allstate ( in its capacity
    as   Mr.   Robinson' s liability insurer' and in its capacity as Mr. Faucheux' s
    insurer2),
    uninsured/underinsured         motorist ("    UM")                   and    State    Farm   Mutual
    Automobile Insurance Company, Mrs. Faul' s UM insurer.'                        Mrs. Faul sought
    damages for cervical spine injuries allegedly sustained as a result of the motor
    vehicle collision.
    1 The Allstate policy covering Mr. Robinson' s 2002 Chevrolet Suburban had liability limits of
    500, 000. 00 per person/$ 500, 000. 00 per accident.
    2 On Plaintiff' s motion, the trial court signed a judgment on December 13, 2016, dismissing all
    of the plaintiff' s claims against Allstate in its capacity as Mr. Faucheux' s UM insurer uninsurer,
    without prejudice.
    3 Pursuant to a joint motion of partial dismissal without prejudice, the trial court signed a
    judgment on November 28, 2016, dismissing all of the plaintiff' s claims against State Farm
    Mutual Automobile Insurance Company, without prejudice.
    2
    The matter was tried before a jury on February 4- 7, 2019, on the issues of
    liability and damages. At the conclusion of trial, the jury returned a 9- 3 verdict
    finding that Mrs. Faul proved by a preponderance of the evidence that Mr.
    Robinson was at fault in causing the September 19, 2015 accident, but that Mrs.
    Faul was not injured as result of the accident.               Accordingly, the jury did not award
    Mrs. Faul any damages. The trial court signed a judgment in conformity with the
    jury' s verdict on March 4, 2019. Arguing that the jury' s verdict was unreasonable
    and not supported by the evidence presented at trial, Mrs. Faul filed a motion for
    judgment notwithstanding the verdict (" JNOV"), or alternatively, a motion for new
    trial, which were denied by the trial court pursuant to a judgment signed on May 8,
    2019.    Mrs. Faul now appeals the trial court' s March 4, 2019 and May 8, 2019
    judgments.
    I WAMiYA
    In a personal injury suit, liability is determined under the duty -risk analysis,
    which requires that the plaintiff prove: (        1) the defendant had a duty to conform his
    conduct to a specific standard of care, ( 2)              the defendant failed to conform his
    conduct to     the   appropriate   standard      of care, ( 3)      the defendant' s substandard
    conduct    was   a    cause -in -fact   of the    plaintiffs      injuries, ( 4)   the   defendant' s
    substandard conduct was a legal cause of the plaintiffs injuries,                    and (   5)    actual
    damages. Brewer v. J.B. Hunt Transport, Inc., 2009- 1408 ( La. 3/ 16/ 10), 
    35 So. 3d 230
    , 240.     In order to recover, the plaintiff must prove, by a preponderance of
    the evidence, both the existence of the injuries and a causal connection between the
    injuries and the      accident.     Richardson           v.   Bridgefield Casualty Insurance
    Company, 2014- 1587 ( La. App. lst Cir. 8/ 10/ 15), 
    181 So. 3d 619
     64 ( citing Kelley
    v.   General Insurance Company of America,                        2014- 0180 ( La.    App.        1St Cir.
    12/ 23/ 14), 
    168 So. 3d 528
    , 543, writs denied, 2015- 0157, 2015- 0165 ( La. 4/ 10/ 15),
    
    163 So. 3d 814
    , 816).
    3
    It is well- settled that a tortfeasor takes his victim as he finds him and is
    responsible for all natural and probable consequences of his tortious conduct.
    Touchard v. Slemco Electric Foundation, 99- 3577 ( La. 10/ 17/ 00), 
    769 So. 2d 1200
    , 1204.       Nevertheless, the tortfeasor cannot be held liable for injuries which
    are not attributable to the tortious conduct or wrongful act.      Sanders v. Collins,
    
    551 So. 2d 644
    , 651 ( La. App. 1st Cir. 1989), writ denied, 
    556 So. 2d 1261
     ( La.
    1990).     Thus, a tortfeasor is only liable for damages caused by his negligent act,
    not damages caused by separate, independent, or intervening causes. Richardson,
    181 So. 3d at 64; Kelley, 168 So. 3d at 543.     However, where it is established that
    the defendant' s negligent action aggravated a pre- existing injury or condition, he
    must compensate the victim for the full extent of that aggravation. Touchard, 769
    So. 2d at 1204.
    On appeal, Mrs. Faul contends that she met her burden of proving that she
    suffered injuries as a result of the accident and that the jury' s verdict to the
    contrary    was    manifestly   erroneous because   the   unrefuted medical   evidence
    demonstrated that her neck injuries were caused and/ or aggravated by the accident.
    A jury' s determination on causation, i.e., whether an accident caused the plaintiff' s
    injuries, is a factual question that should not be reversed on appeal absent manifest
    error.   Thongsavanh v. Schexnayder, 2009- 1462 ( La. App. 1St Cir. 5/ 7/ 10), 
    40 So. 3d 989
    , 1001, writ denied, 2010- 1295 ( La. 9/ 24/ 10), 
    45 So. 3d 1074
    ;       see   also
    Detraz v. Lee, 2005- 1263 ( La. 1/ 17/ 07), 
    950 So. 2d 557
    , 561.   Under the manifest
    error standard, the appellate court does not decide whether the jury was right or
    wrong; rather it is required to consider the entire record to determine whether a
    reasonable factual basis exists for the finding, and whether the finding is
    manifestly erroneous or clearly wrong. Hayes Fund for First United Methodist
    Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 2014- 2592 ( La.
    12/ 8/ 15), 
    193 So. 3d 1110
    , 1116.
    M
    Reasonable persons frequently can and do disagree regarding causation in
    particular cases.   But where there are two permissible views of the evidence, the
    factfinder' s choice between them cannot be manifestly erroneous or clearly wrong.
    Hayes, 
    193 So. 3d at 1116
    .    When findings are based on determinations regarding
    the credibility of witnesses, the manifest error -clearly wrong standard demands
    great deference to the jury' s findings; for only the factfinder can be aware of the
    variations in demeanor and tone of voice that bear so heavily on the listener' s
    understanding and belief in what is said.        Rosell v. ESCO, 
    549 So. 2d 840
    , 
    844 La. 1989
    ).   Accordingly, appellate review of the factual circumstances and
    evidence of the case will not be the basis for reversal of the trial court' s judgment,
    in the absence of manifest error, even if the court of appeal is convinced that, had it
    been sitting as the trier of fact, it would have weighed the evidence differently.
    Rosell, 549 So. 2d at 844.         The reviewing court must review the record in its
    entirety to determine whether the factfinder' s finding was clearly wrong or
    manifestly erroneous.   Stobart v. State through Dep' t of Transp. and Dev., 
    617 So. 2d 880
    , 882- 83 ( La. 1993).
    The Louisiana Supreme Court applies a two-part test to determine if a
    factfinder' s determinations warrant reversal: ( 1) the appellate court must find from
    the record that a reasonable factual basis does not exist for the finding of the trial
    court; and ( 2) the appellate court must further determine that the record establishes
    that the finding is clearly wrong (manifestly erroneous).    Graves v. Page, 96- 
    2201 La. 11
    / 7/ 97), 
    703 So. 2d 566
    , 573.
    Also at issue on appeal is the May 8, 2019 judgment denying Mrs. Faul' s
    motion for JNOV and alternative motion for new trial.         Louisiana Code of Civil
    Procedure article 1811 provides that a party may move for a JNOV and that a
    motion for new trial may be joined with the motion. A JNOV can be granted only
    when the trial court finds that reasonable minds could not reach a contrary verdict.
    5
    Adams v. Parish of East Baton Rouge, 2000- 0424 ( La. App. 1St Cir. 11/ 14/ 01),
    
    804 So. 2d 679
    , 687, writ denied, 2002- 0448 ( La. 4/ 19/ 02), 
    813 So. 2d 1090
     ( citing
    Davis v. Wal- Mart Stores, Inc., 2000- 0445 ( La. 11/ 28/ 00), 
    774 So. 2d 84
    , 89).
    The trial court should not evaluate the credibility of the witnesses and all
    reasonable inferences or factual questions should be resolved in favor of the non-
    moving party. Adams, 804 So. 2d at 687.
    In general, the standard of review of a JNOV on appeal is twofold. First, we
    must determine whether the jury verdict is supported by competent evidence and is
    not wholly unreasonable.      If the verdict is supported by competent evidence and
    not wholly unreasonable, then the trial court may not set it aside.       To make this
    determination, we must, after considering all of the evidence in the light most
    favorable to the party opposing the motion, find that it points so strongly and
    overwhelmingly in favor of the moving party that reasonable persons could not
    arrive at a contrary verdict on the issue. Second, after determining that the trial
    court correctly applied its standard of review as to the jury verdict, the appellate
    court reviews the JNOV using the manifest error standard of review.           Daigle v.
    United States Fidelity and Guaranty Insurance Company, 94- 0304 ( La. App.
    1St Cir. 5/ 5/ 95), 
    655 So. 2d 431
    , 436.
    DISCUSSION
    At trial, the jury was presented with evidence regarding the nature of the
    rear -end collision.   Mr. Faucheaux, the owner and driver of the BMW, testified that
    at the time of the accident, he was stopped at a red traffic light at the intersection of
    Gardere Lane and Nicholson Drive in bumper -to -bumper post -LSU gameday
    traffic.   Once the traffic light turned green, he proceeded slowly through the light,
    but because of the traffic, he had to come to a stop.     At that point, the Suburban
    driven by Mr. Robinson, which was behind him, collided into his BMW.                Mr.
    Faucheaux recalled that he " had [ his] foot on the brakes" and that the " impact was
    G7
    such that it actually jarred the car." Mrs. Faucheux testified that the BMW was
    slam[ med]     out of nowhere,"   and that all the   occupants were jolted.      Mrs. Faul
    described the force of the collision as " severe" or " great." She testified that " all of
    a sudden, it was like bam right in the back of the car. I mean, it was like hard,
    hard. It was -- it was choomp -- you know, like shazam king of thing."
    Mr.   Faucheaux stated that the only visible damage to the BMW was
    indentations on the plastic bumper.         However, once the plastic bumper was
    removed, more extensive damage was revealed, which he had to have repaired.
    Mr. Faucheaux was unable to remember how much he paid for the repairs.
    Burnell Thompson, III,    a Louisiana State Trooper and the investigating
    officer of this accident, described the damage to the front end of the Suburban and
    to the rear bumper of the BMW as " very minor."           He testified that the Suburban
    and the BMW were drivable by the owners and did not have to be towed from the
    scene of the accident.   Trooper Thompson further stated that Mrs. Faul reported to
    him that she may have possibly been injured, but she refused aid.           Photographs of
    the BMW taken after the collision reflect scratches and indentations on the bottom
    portion of the rear bumper.
    Mrs. Faul testified that immediately following the accident, she felt pain in
    her neck " like it was going up the back of [her] head," and she knew that she was
    about to have a headache. However, she refused medical treatment at the scene of
    the accident and went with her husband and the Faucheuxes to a bar and grill at a
    nearby casino to watch another football game.         Mrs. Faul testified that "[ i] t didn' t
    seem like it was an emergency situation"          and that she " just   kind of hurt [ her]
    head."    The group later left the casino because Mrs. Faul' s head " got to hurting
    really bad."
    The evidence established that Mrs. Faul had a long-standing history of neck
    and back pain prior to the accident and had been involved in accidents both before
    VA
    and after the September 2015 accident. It was undisputed that Mrs. Faul, who was
    forty-seven years old at the time of the accident, suffered from chronic neck and
    back pain.    Mrs. Faul first suffered injuries to her neck and back when as a
    pedestrian,   she was struck by a motor vehicle in June 2004.           Her primary
    complaint following that accident was neck and back pain.        She filed a lawsuit
    regarding the 2004 accident, which was settled out of court.
    Dr. Martin A. Langston, a specialist in physical medicine, rehabilitation, and
    pain management, treated Mrs. Faul following her 2004 accident on a referral from
    her primary physician, Dr. Jeri Johnson.      From the 2004 accident until the 2015
    accident, Dr. Langston treated Mrs. Faul' s neck and back pain " conservatively"   by
    performing diagnostic testing, trigger point injections, cervical and lumbar epidural
    steroid injections (`` RSIs"),   radiofrequency ablations (" RFAs"),   medial branch
    blocks, electromyograms (" EMGs"), nerve conduction studies, and other treatment
    and tests on an intermittent basis.   Mrs. Faul also underwent three cervical MRIs
    during this time: in 2004, in 201 1, and on June 21, 2014.     Dr. Langston testified
    that Mrs. Faul' s three cervical MRIs showed common, degenerative changes.
    Three months prior to the accident at issue herein, Mrs. Faul underwent
    cervical and lumbar ESIs, and she reported lingering cervical pain at her follow-up
    visit with Dr. Langston on June 22, 2015.     Five days prior to the accident herein,
    Mrs. Faul saw Dr. Langston on September 14, 2015, for an unscheduled visit after
    she injured herself while exiting a vehicle. She complained of lower back pain,
    buttock pain, hip pain, and lower extremity pain.     However, at trial, Mrs. Faul' s
    counsel referred to her preexisting neck pain as a " little pesky medical problem."
    Mrs. Faul testified that she " was doing fine" before the accident.    She described
    Dr. Langston' s treatment of her cervical and lumbar spine as treatment of "aches
    and pains."
    E
    Mrs. Faul testified that three days after the September 19, 2015 accident, she
    called a nurse at her primary care physician' s office to report her injuries " in case
    she] needed to get a refill or something ... a muscle relaxer...."   On September 29,
    2015, ten days after the accident, Mrs. Faul visited her primary care physician, Dr.
    Jeri Johnson, but made no mention of the accident or of any injuries to her neck or
    back.
    On October 7, 2015, three weeks post -accident, Mrs. Faul complained of
    neck and back pain to Dr. Langston at a visit that was scheduled prior to the
    accident.    She informed Dr. Langston that she had been involved in an accident,
    but that she had also aggravated her neck and back pain while performing regular
    household duties. At that visit, Mrs. Faul indicated that her pain level was a 5 out
    of 10.      Dr. Langston performed trigger point injections into her muscles for
    immediate relief and ordered a lumbar MRI.
    Mrs. Faul returned to Dr. Langston on October 29, 2015,       for a follow-up
    visit and had X-rays performed,        which showed no disc bulging/herniation or
    ligament laxity, only muscle spasms.       Dr. Langston scheduled a cervical ESI and
    prescribed a muscle relaxer and pain medication.     Mrs. Faul indicated that her pain
    level was a 3 out of 10.        She had the cervical ESI on November 20, 2015.
    Approximately four months later, on February 18, 2016, Mrs. Faul returned to Dr.
    Langston complaining of increased lower back pain.         Dr. Langston prescribed a
    muscle relaxer and pain medication and scheduled trigger point injections. During
    his deposition, Dr. Langston testified:
    Q:    Her conditions really weren' t changing ...
    any? It wasn' t getting any better in February of ' 16?
    A:    She was, yes, still having some flare- ups of
    neck and back pain.
    Q:      Okay.   The same sort of complaints that she
    had had since going back to 2004?
    A: Correct.
    7
    Dr. Langston saw Mrs.         Faul on May 9, 2016, where she complained of
    mainly left shoulder pain. He prescribed anti- inflammatory medication and muscle
    relaxers and scheduled a cervical MRI, EMG, and nerve conduction studies. The
    cervical MRI, performed on May 16, 2016, showed no changes from her MRIs
    prior to the accident.
    On Dr. Langston' s recommendation, Mrs. Faul went to see Dr. Richard
    Allen Stanger on May 19, 2016. At that visit, she complained of back pain, neck
    pan, pain radiating into her left arm, pain in her left leg, numbness in her fourth
    and fifth digits, and tingling in her hand.          Mrs. Faul indicated to Dr. Stanger that
    she had been in a motor vehicle collision in September 2015, and that her pain was
    worse following the accident. Recognizing that Mrs. Faul' s symptoms had been
    ongoing for a long time, Dr. Stanger indicated that she could continue with the
    ESIs or consider surgery.           Mrs.   Faul opted for surgery— an anterior cervical
    discectomy and fusion, which Dr. Stanger performed in June 2016. The surgery
    fused two levels in her cervical spine C- 5 to C- 7.          Dr. Stanger initially wanted to
    fuse three levels, C- 5 to T- 1, but was unable to access the bottom T- 1 level. At her
    first   post- operative   visit   on   June   14,    2016,   Mrs.   Faul reported worsening
    symptoms; however, she admitted that she had fallen while trying to change a light
    bulb prior to this visit.     Dr. Stanger indicated that it was possible the fall could
    have aggravated the non- fused cervical level that soon after her surgery.                He
    ordered a cervical MRI, which was performed on July 21, 2016, and it showed no
    disc herniation.
    Following her cervical discectomy and fusion with Dr. Stanger, Mrs. Faul
    returned to Dr. Langston on July 14, 2016, reporting radicular pain to the left upper
    extremity.    She also told Dr. Langston that she had fallen and injured herself. Dr.
    Langston recommended that Mrs. Faul return to Dr. Stanger and continue her pain
    medication.      Mrs. Faul        returned to Dr.     Stanger on July 26,     2016,   and he
    10
    recommended a CT scan,        which was performed that same day, based on her
    continuing and worsening post- operative pain. On August 24, 2016, Dr. Stanger
    then performed a second surgery on Mrs. Faul, a C7- T1 laminectomy, to fuse the
    third level that he was unable to fuse during her first surgery.      After the second
    surgery, Mrs. Faul' s surgical wound became infected, and she was ultimately
    admitted to the hospital to drain fluid from the infected wound. Mrs. Faul then
    returned to Dr.    Stanger for follow up visits regarding her wound infection on
    September 15, 20, and 27, 2016.      On later visits with Dr. Stanger on October 11
    and 25, 2016, December 1,     2016, January 5, 2017, and May 11, 2017, Mrs. Faul
    reported neck pain, numbness in her fourth and fifth digits, left arm pain, back
    pain, pain in both lower extremities, pain in her left leg, and pain in her right ankle.
    Dr. Stanger recommended conservative treatment for her back pain,
    including
    injections and possibly surgery to decompress nerves in an attempt to alleviate her
    arm pain and finger numbness.
    Mrs. Faul then returned to Dr. Langston on November 3, 2016, complaining
    of some residual posterior cervical pain, and pain to the mid and upper thoracic
    region that was caused by muscle spasms.       Dr. Langston continued her on muscle
    relaxers and pain medication and her exercise program per Dr. Stanger. Mrs. Faul
    saw Dr. Langston' s physician' s assistant on September         13,   2017,   where   she
    complained of increased, aching neck pain. Dr. Langston' s office continued her on
    pain medication and physical therapy.
    Mrs. Faul,    relying on the testimony of Dr. Langston and Dr. Stanger,
    maintains that the evidence established a causal link between her complaints of
    pain and the September 19, 2015 automobile collision.       Dr. Langston specifically
    testified during his deposition that he referred Mrs. Faul to Dr. Stanger because she
    had unresolved complaints that were aggravated by the September 19,                2015
    11
    accident.    However, Dr. Langston deferred to Dr. Stanger as to the degree or extent
    of aggravation or exacerbation.
    During Dr. Stanger' s deposition, the following exchange occurred:
    Q:     Can you say in your medical opinion that
    had the September 19, 2015 motor vehicle accident not
    occurred, that she would not have needed the surgery that
    she had in -- I guess it was two surgeries in 2015?
    A:     It really [ would] just depend on her --
    honestly, it would be her symptoms, you know, because
    people can have a terrible -looking MRI. If they' re
    feeling fine, we' re not going to do surgery.
    Q: ... [   H] ow did this accident -- if you can tell
    us -- if you can' t tell us, I just need to know you can' t say
    but based upon what you know today, your history,
    what she' s given you, the limited history that you have
    identified about her going back to 2004, and everything
    that' s changed since you first saw her with the two
    surgeries, etcetera, etcetera, can you tell us that you feel
    that because of the motor vehicle accident September
    2015, you' re relating the need for surgery to that event?
    Do you feel comfortable about making that connection?
    A:
    The way I phrase it is, you know, if her
    symptoms were very manageable before the accident,
    and she' s going along fine with conservative treatment,
    and she' s doing fine, and then the accident occurs --
    because       when   I   saw   her,    her   symptoms   were   not
    manageable.      She was in terrible pain.        And there' s no
    way -- from what I saw there, there' s no way she would
    have been doing that for 6 years, you know, been fine
    with the amount of pain that she was in. So I would say
    the amount of pain that I saw her in when I first saw her,
    I would say she wasn' t in that amount of pain before. I
    would say the accident did precipitate the need for
    surgery based on her symptoms then.
    Q:    Your decision to operate on [ Mrs.] Faul in
    June of 201[ 6], was because those symptoms had risen to
    that level, that she could no longer manage it?
    A:     Yes.
    The jury also heard the deposition expert medical testimony of neurosurgeon
    Dr. Najeeb Thomas, who performed an independent medical examination of Mrs.
    Faul' s    medical   records.        Though    Dr.     Thomas   never   performed    a   physical
    examination of Mrs. Faul, he had access to her complete medical history.                     Dr.
    Thomas, noting Mrs. Faul' s extensive history and worsening MRIs, testified that
    12
    while the September 19, 2015 accident may have aggravated Mrs. Faul' s chronic
    neck pain, she would have required cervical surgery regardless of the accident.
    The trier of fact' s credibility determinations, even when based on the
    depositions of experts offered in lieu of live testimony,          are   accorded   great
    deference.   Further, in reaching its conclusions, the trier of fact need not accept all
    of the testimony of any witness as being true or false and may believe and accept a
    part or parts of an expert witness' s testimony and refuse to accept other parts.
    These rules apply equally to the evaluation of expert testimony, including the
    evaluation and resolution of conflicts in expert testimony. Landry v. Doe, 2019-
    0880 ( La. App. 1St Cir. 6/ 26/ 20),      So. 3d ,          
    2020 WL 3481703
    , at * 5,
    writs denied, 2020- 00952, 2020- 00948 ( La. 10/ 20/ 20), 
    303 So. 3d 313
    , 316.
    The weight afforded a treating physician' s testimony is largely dependent
    upon the facts upon which his opinion is based. Edwards v. State Farm Mutual
    Automobile Insurance Company, 2010- 2216 ( La. App. 1st Cir. 5/ 6/ 11), 
    2011 WL 2617384
    , at * 3 ( unpublished); Wells v. Allstate Insurance Company, 
    510 So.2d 763
    ,   768 ( La.   App.   1St Cir.), writ denied, 
    514 So. 2d 463
     ( La. 1987).        The
    plaintiff' s credibility is especially significant when a physician must relate a
    medical condition to an accident based on the plaintiffs history.           See Peters v.
    Harmsen, 2003- 1296 ( La. App. 1St Cir. 4/ 2/ 04), 
    879 So. 2d 157
    , 162. A plaintiff' s
    lack of credibility on factual issues can serve to diminish the veracity of his
    complaints to a physician.    Meneses v. IFCO Systems, Inc., 2004- 1686 ( La. App.
    1St Cir. 9/ 23/ 05), 
    923 So. 2d 111
    , 117; Peters, 879 So. 2d at 162.        Thus, in many
    cases, the credibility of the history given by the plaintiff to her physicians becomes
    as important as the medical opinions based on that history. Meneses, 923 So. 2d at
    116- 17.
    It is apparent, from our review of the record, that Mrs. Faul' s credibility was
    the critical issue at the trial and that the jury rejected her testimony.    Furthermore,
    13
    Mrs. Faul' s credibility ( or lack thereof) affected not only her testimony, but also
    the medical opinions of her doctors regarding the causal relationship between the
    accident and the alleged injuries. See Richardson, 181 So. 3d at 68, Meneses, 923
    So. 2d at 116- 17, and Peters, 879 So. 2d at 162.        Causation in this case rested
    largely on Mrs. Faul' s credibility both in reporting her medical condition and her
    level of pain to her treating physicians. The jury was presented with evidence of
    numerous accidents in which Mrs. Faul had been involved that could have
    accounted for her complaints of pain— the 2004 accident, when she injured herself
    while exiting a vehicle ( sometime in early September 2015 before the        accident),
    and when she fell while trying to change a light bulb ( sometime in June 2016 after
    the accident and first surgery).      The jury apparently concluded that Mrs. Faul
    suffered no increase in her chronic pain after this accident and the record
    reasonably supports the jury' s conclusion in this regard. Thus, we cannot say that
    the jury' s failure to find that Mrs. Faul sustained injuries or that her pre- existing
    condition was aggravated from the September 19, 2015 accident was manifestly
    erroneous.     See Hayes, 
    193 So. 3d at 1116
    ; Edwards, 
    2011 WL 2617384
    , at * 3.
    Since the jury' s finding that Mrs. Faul was not injured as result of the accident was
    reasonably supported by the record, its failure to award damages to Mrs. Faul was,
    likewise, neither manifestly erroneous nor clearly wrong.      As such, the trial court
    properly denied Mrs. Faul' s motion for JNOV and, alternatively, motion for new
    trial.   The assignments of error directed at these findings are without merit.
    DECREE
    For the foregoing reasons, we affirm the March 4, 2019 and the May 8, 2019
    judgments of the trial court. All costs of this appeal are assessed to the plaintiff,
    Tamatha Faul.
    JUDGMENTS AFFIRMED.
    14
    

Document Info

Docket Number: 2019CA1450

Filed Date: 12/16/2020

Precedential Status: Precedential

Modified Date: 10/22/2024