Roberts v. Boxer

311 So.3d 513

Kimberly R. ROBERTS

v.Georgia BOXER and Chubb National Insurance Company

NO. 2019-CA-1038

Court of Appeal of Louisiana, Fourth Circuit.

November 18, 2020

David P. Vicknair, Hope E. Hughes, SCOTT VICKNAIR HAIR & CHECKI, LLC, 909 Poydras Street, Suite 1100, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLANT

Joseph Maselli, Jr., Lauren B. Dietzen, Lauren N. Baudot, PLAUCHE' MASELLI PARKERSON LLP, 701 Poydras Street, Suite 3800, New Orleans, LA 70139, COUNSEL FOR DEFENDANTS/APPELLEES

This appeal is taken from a jury verdict that found Kimberly Roberts’ injuries were not caused by the vehicular accident that occurred on July 6, 2016. For the reasons that follow, the verdict, adopted as the judgment, is amended, and affirmed as amended.

Facts

On July 6, 2016, Kimberly Roberts was a passenger in a vehicle driven by her husband, Scott Roberts. While traveling on North Claiborne Avenue in New Orleans, Louisiana, the Roberts’ vehicle was struck on the left rear side by a vehicle driven by Georgia Boxer. After assessing the damages, the parties agreed to pull into a nearby gas station to wait for the police to arrive. After approximately seven hours, a police officer arrived, conducted interviews, and wrote a report. Once the police officer was done, the Roberts proceeded to St. Bernard Parish Hospital to be examined for their injuries.

Thereafter, on July 11, 2016, Mrs. Roberts presented for examination by physician, Dr. Godwin Ogbuokiri. He documented her complaints and prescribed treatment for Mrs. Roberts. Dr. Ogbuokiri's records indicate that, in February of 2017, Mrs. Roberts had completed her treatment and her condition had improved. In March 2017, Mrs. Roberts presented to her primary care physician, Dr. Erica Jackson, complaining of right shoulder pain. She was referred to an orthopedic surgeon who determined she had a torn rotator cuff. That condition required surgery and post-surgery rehabilitation.

A lawsuit was filed against Ms. Boxer and her insurer, Great Northern Insurance Company ("Great Northern"). In that lawsuit, Mrs. Roberts related her prior soft tissue injuries and her torn rotator cuff injury, surgery, and rehabilitation to the July 6, 2016 vehicular accident. At trial, the jury rejected the contention that the July 6, 2016, caused Mrs. Roberts’ injuries. This appeal followed.

Assignments of Error

On appeal, Mrs. Roberts’ assigns errors on the part of the trial court and the jury. Specifically, Mrs. Roberts maintains that the trial court erred in several of its evidentiary rulings: 1) not qualifying Dr. Ogbuokiri as an expert in orthopedic surgery; 2) admitting uncertified medical records into evidence; 3) allowing Derrick DeGoot's testimony regarding a telephone conversation with Scott Roberts; 4) precluding Scott Roberts from being called as a rebuttal witness; and 5) admitting the body worn camera footage of the officer that responded to the accident.

In addition to the evidentiary challenges, Mrs. Roberts’ sixth assignment of error claims that the jury erred in failing to award her damages for the injuries to her neck, back, knee, and head.

Evidentiary Rulings

A trial court has vast discretion in evidentiary matters. As such, evidentiary rulings will not be disturbed on appeal absent a clear abuse of discretion. Yokum v. Funky 544 Rhythm and Blues Cafe , 2016-1142, p. 22 (La.App. 4 Cir. 5/23/18), 248 So.3d 723, 740.

Failing to qualify Dr. Ogbuokiri as an expert in orthopedic surgery

In Mrs. Roberts’ first assignment of error she complains that the trial court abused its discretion in failing to qualify Dr. Ogbuokiri as an expert in orthopedic surgery. Dr. Ogbuokiri testified that during his fellowship he was involved with numerous surgeries and experienced more surgeries related to trauma while practicing at the University of Nigeria Nsukka for thirty years. He further testified that over the last several decades he has been in family practice as a primary care physician.

Dr. Ogbuokiri's own testimony established that it had been decades since he performed any surgery. Additionally, he acknowledged that he was never an orthopedic surgeon and had no specialty in rotator cuff surgery. Considering Dr. Ogbuokiri's past experience and current practice Mrs. Roberts offered him as an expert in primary care and surgery. The trial court accepted Dr. Ogbuokiri as an expert in primary care, but not surgery. The trial court reasoned that since surgery was not Dr. Ogbuokiri's current specialty and he did not perform the surgery in this case, he was not qualified to discuss Mrs. Roberts’ surgery. The trial court further stated that Mrs. Roberts’ orthopedic surgeon, Dr. Russell Russo, had been accepted as an expert in general surgery and orthopedic surgery, and he testified as to the surgery and his opinion of the causation of the injury.

It is well settled that when a party fails to lodge a contemporaneous objection to evidentiary rulings the party waives the right to complain on appeal. Aisola v. Beacon Hosp. Management, Inc. , 2013-1101, p. 10 (La.App. 4 Cir. 4/2/14), 140 So.3d 71, 78 (citing St. Martinville, L.L.C. v. Louisiana Tax Comm'n , 2005-0457, p. 5 (La.App. 1 Cir. 6/10/05), 917 So.2d 38, 42 ). Here, the record does not indicate there was an objection lodged at the time of the trial court's ruling. Therefore, this assignment of error is not properly before this Court.

Admitting uncertified medical records into evidence

At trial, authenticated certified medical records from St. Bernard Parish Hospital, pertaining to Mrs. Roberts visit on July 6, 2016, were entered into evidence. In addition to the certified records, records that Mrs. Roberts sent to a claims adjuster for Great Northern to document her bodily injury claim were also admitted into evidence. During her testimony, Mrs. Roberts acknowledged that she was in communication with Great Northern's claims adjuster, Derick DeGroot. Mr. DeGroot requested her medical records and instructed Mrs. Roberts to write her claim number on each page of the document. At trial, Mrs. Roberts was shown the medical records with the claim number written on the pages and she identified the exhibit as the medical records she sent to Mr. DeGroot.

After establishing the records were the ones submitted by Mrs. Roberts to the claims adjuster, the records were compared to the certified medical records provided by St. Bernard Parish Hospital. The records presented to the claims adjuster indicated more extensive injuries than provided for on the certified records. More specifically, the uncertified record had additional checks and other markings that identified a broader range of injuries and restrictions than reported in the certified records. Mrs. Roberts agreed that the records were noticeably different, but denied altering the records in any way.

On appeal, Mrs. Roberts argues that medical records that are not certified are inadmissible. That argument fails here. There is no dispute that the full certified medical record from St. Bernard Parish Hospital was admitted into evidence to prove Mrs. Roberts’ treatment. The uncertified records were not produced to prove treatment but to prove that the documents Mrs. Roberts sent to Great Northern were markedly different. Further, Mrs. Roberts acknowledged and identified the documents as the ones she personally obtained from St. Bernard Parish Hospital and sent to Great Northern.

This Court has previously found that uncertified medical records identified by a plaintiff are admissible. See Daspit v. Barber, 2000-1221, p. 9 (La.App. 4 Cir. 4/11/01), 786 So.2d 962, 969 (testimony from plaintiff regarding receipt and of bills and treatment was sufficient to allow the introduction of the records to prove the fact of treatment and its cost), Jackson v. Tyson , 526 So.2d 398, 401 (La.App. 4 Cir. 5/12/88) (plaintiff identified her medical bills at trial as proof of the cost of treatment; such evidence was not hearsay); see also Webster v. Ballard , 2005-2247 La.App. 1 Cir. 3/2/07, 961 So.2d 13. Accordingly, there was no abuse of discretion by the trial court in admitting the uncertified medical records.

Allowing Derrick DeGoot's testimony regarding a telephone conversation with Scott Roberts and Precluding Scott Roberts from being called as a rebuttal witness

These assignments of error are discussed together because each complaint stems from Mr. DeGroot's telephone conversation with Mr. Roberts. In Mr. Roberts’ initial testimony, he stated that his wife sustained injuries in the July 6, 2016 accident. Later in his testimony, he was asked several times if he discussed his wife's injuries with a claims adjuster from Great Northern. Mr. Roberts testified that he had no recollection of a telephone conversation where he discussed his wife's injuries with the claims adjuster at Great Northern. He further explained that his lack of recollection could be attributed to his drug use at the time.

Mr. DeGroot testified that, although he was no longer the claims adjuster on Mrs. Roberts’ claim, he received a telephone call from Mr. Roberts. During that call, Mr. Roberts voiced his concern over the validity of his wife's injury claims from the July 6, 2016 accident. According to Mr. DeGroot, Mr. Roberts stated that he did not think Mrs. Roberts injured her back. Mr. Roberts further stated that she had made prior claims for back injuries and he further stated that he thought she was not being truthful about her head injury. On cross-examination, Mr. Roberts’ heroin use and his separation from Mrs. Roberts at the time of the telephone conversation were raised as possible motivation for Mr. Roberts making those statements to Mr. DeGroot.

Mrs. Roberts objected to Mr. DeGroot's testimony on the grounds that it was inadmissible hearsay. The trial court overruled the objection finding that the statement was admissible for impeachment purposes. Article 613 of the Louisiana Code of Evidence allows for the use of extrinsic evidence to attack the...