Hall v. Bennett

361 So.3d 1090

Ora HALL Plaintiff-Appellant v. Jo BENNETT and United Services Automobile Association Defendants-Appellees

No. 54,995-CA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered April 5, 2023

EDDIE M. CLARK & ASSOCIATES, LLC, By: Eddie M. Clark, Counsel for Appellant

MAYER, SMITH & ROBERTS, LLP, By: Frank Knox Carroll, Shreveport, Counsel for Appellees

Before PITMAN, MARCOTTE, and ELLENDER, JJ.

ELLENDER, J.

Ora Hall appeals a jury verdict and judgment that awarded her $100,000 for past pain and suffering and $86,748.52 for past medical expenses arising from an auto accident, but denied her claims for mental anguish, future medical expenses, and loss of enjoyment of life. For the reasons expressed, we affirm.

FACTUAL BACKGROUND

Ms. Hall was a 43-year-old certified nursing assistant who worked at the Northeast Louisiana Veterans Home, on Hwy. 165 North (Sterlington Road) in Monroe. On November 1, 2018, she had left her shift and was driving her 2011 Hyundai Sonata north on Sterlington Rd., in the left lane. At that moment, Jo Bennett was pulling out of the Veterans Home's public parking lot, turning right onto Sterlington Rd. in her 2012 Jeep Grand Cherokee. Ms. Bennett was not paying adequate attention to the traffic. She ran the front driver's side of her Jeep into the rear passenger side of Ms. Hall's Hyundai. Ms. Hall estimated she was going about 50 mph at the time; Ms. Bennett estimated she was going about 5 mph, having just pulled onto the road. Ms. Hall was able to drive her Hyundai home.

Ms. Hall told police at the scene that she was not hurt, but the next day, November 2, she went to University Health (also called, in the transcript, "E.A. Conway") with pain in her lumbar spine and right posterior upper leg, which she rated as "mild." They gave her a Toradol injection and released her to return to work November 5. According to her husband's testimony, Ms. Hall missed less than one week of work.

A week later, however, on November 8, Ms. Hall went to a chiropractor, Dr. G.G. Grant IV, complaining of headaches, upper and lower back pain, and right hip pain that radiated down her leg. Dr. Grant found that her back movement was not 100%, and started her on a course of treatments that ran about four months. By the time these concluded, on March 3, 2019, she had dropped her rating of lower back pain ("LBP") from "8" to "3," but manipulations did not completely resolve the issue, so Dr. Grant had advised seeing a pain management specialist. Based on her symptoms and her reported history of being pain-free before, Dr. Grant ascribed all her current problems to the accident.

Ms. Hall went to the pain specialist, Dr. John Ledbetter, on January 23, 2019. He ordered an MRI, which showed mildly exaggerated lumbar lordosis, advanced facet osteoarthropathy at C4-5 (suggesting active apophysitis ), and degenerative changes at L4-5. Starting in March 2019, Dr. Ledbetter performed lumbar medial branch block procedures (called, in the record, "ablations" or " neurotomies"), on the left and right sides, two weeks apart. Each of these resulted in excellent, 100% pain relief, but the results were only temporary. The process had to be repeated in April-May 2019, April-May 2020, and May 2021, resulting in 90% pain reduction and no needed medication, but with the likelihood of having to repeat the process annually. Dr. Ledbetter conceded that Ms. Hall's arthritic changes may have predated the accident, but, based on her reported history of being pain-free before, they were asymptomatic. He therefore ascribed all her current complaints, and future medical treatment, to the accident.

PROCEDURAL AND LITIGATION HISTORY

Ms. Hall filed this suit in September 2019 against Ms. Bennett and her auto insurance carrier, United Services Automobile Association ("USAA"). She alleged that the collision "caused or aggravated any pre-existing injuries"; in a discovery deposition in February 2020, she denied any prior low-back issues and stated that all her current pain resulted from this accident. USAA found, however, that 16 months before the accident, in June 2017, Ms. Hall had gone to a family doctor, Dr. Marshall Sanson, with complaints of LBP shooting down her right leg, precisely her postaccident complaint to Dr. Ledbetter. At trial, she admitted this, as well as seeing a chiropractor some 10-11 years prior, but insisted these were soft-tissue injuries, and they had totally cleared up before Ms. Bennett rear-ended her.

USAA sent Ms. Hall's medical records to Dr. Alan Kaye, a noted expert in interventional pain care and pharmacology, and lead author of a textbook called Case Studies in Pain Management , which describes a condition called Bertolotti's syndrome. Dr. Kaye agreed that Ms. Hall's February 2019 MRI showed edema, which he deemed clear proof of acute trauma and a recent accident. However, the MRI also showed arthritic and degenerative changes that were present on the 2017 X-ray taken at Dr. Sanson's office. He testified that these changes predated the accident and would continue to give her chronic problems the rest of her life. He also felt that her current condition was aggravated by her obesity (5'5'', 195 lbs.) and the nature of her work as a CNA. Although he did not mention it in his initial report, he stated in his deposition that this was a classic case of Bertolotti's syndrome, which affects 4-8% of the population and is permanent.

Prior to trial, the parties stipulated that Ms. Bennett was solely at fault in the accident; Ms. Hall's medical expenses, to date, were $86,748.52; Ms. Hall's medical records were true and correct copies; and USAA insured Ms. Bennett for the accident.

TRIAL EVIDENCE

The parties proceeded to jury trial over six days from January 31 through February 9, 2022. After the jury was selected, on the third day of trial, Ms. Hall filed an "Emergency Daubert Motion" to exclude Dr. Kaye from referring to the accident as a "low impact" or "low speed" wreck (USAA ultimately agreed to this) and from expressing any opinion regarding Bertolotti's syndrome. She contended that no doctor had ever diagnosed her with this and no medical records supported it. The court denied this motion as untimely, adding that Ms. Hall's counsel had known about Dr. Kaye's opinion for over five months and thus had adequate time to hire his own expert.

On the fifth day of trial, Ms. Hall filed a "Motion to Extend Time Limitation" for closing arguments, seeking 60 minutes instead of 30. The court denied this also, noting (1) it was untimely, (2) Ms. Hall's counsel had not objected when 30 minutes was listed in the pretrial order, and (3) the stipulations obviated the need to argue many normal evidentiary issues.

On the merits, Dr. Grant, the chiropractor, testified as outlined above. He found "no evidence" that Ms. Hall suffered from her symptoms before the accident or was malingering. He admitted that she had seen Dr. Sanson for LBP earlier, but he took her word that those complaints were completely resolved before the accident. ¹

Dr. Ledbetter, Ms. Hall's expert in anesthesiology and pain management, testified by deposition as described above. He admitted that her chronic condition may have predated the accident, and he was surprised to hear (at trial, for the first time) that she had seen another doctor earlier for LBP. He also agreed that her work as a CNA and her obesity might have contributed to her current state. Still, he believed she was asymptomatic before the accident, the ablations gave her good relief, and she would need these annually. At first, he said she would need them the rest of her life, but later amended this to say for the next 10-15 years.

Elizabeth Peralta, an expert in lifecare planning, testified that Ms. Hall's life expectancy was 37.9 years; annual ablations, plus follow-up care, would cost $836,945.70. Chad Garland, an expert forensic accountant, testified the present value of her needed lifetime care was $1,701,583.06, but if ablations were limited to only 10 years, it would be $249,125.23.

Ms. Hall's husband testified that she had no back pain before the accident, but since, she has "good days and bad days." He described having to help walk her back to the car after each ablation. On cross-examination, he admitted she was making no claim for lost wages.

Ms. Hall admitted she had been to Dr. Sanson for LBP about 16 months before the accident, but this was "muscle pain" and she had completely got over it. She added that her normal activities had been limited by her pain, and that she intended to get the ablations annually, as long as they continued to help her.

For USAA, Ms. Bennett testified that she was going only about 5 mph when she struck the rear of Ms. Hall's Hyundai: the Hyundai's bumper came off, but Ms. Hall was able to drive the car away. The damage to her own Jeep was negligible, $1,623. ²

Dr. Robert Eisenstadt, Ph.D., an expert economist and retired University of Louisiana-Monroe professor, projected Ms. Hall's future medicals as $354,468 (based on 15 years of ablations) or $229,479 (based on 10 years).

Dr. Kaye, USAA's expert in interventional pain management, testified by deposition that he had not physically examined Ms. Hall. However, her MRI showed "enlarged transverse process forming pseudo arthritis with sacral ala," the very definition of Bertolotti's syndrome, as well as enlarged lumbar facets, both predating the accident. He also stated that her physical work as a CNA, her obesity, and probably her genetics contributed to her condition. He agreed that Dr. Ledbetter's treatment had been appropriate, but felt the direct effects of the accident had subsided and Ms. Hall was now experiencing pain she would have encountered anyway because of Bertolotti's syndrome.

ACTION OF THE TRIAL COURT

The 12-member jury deliberated slightly under one hour and returned the verdict awarding past and future pain and suffering of $100,000 and past medicals...