Tully v. Granillo

384 So.3d 470

55,211 (La.App. 2 Cir. 4/24/24)

Courtney Jo TULLY, Plaintiff-Appellee

v.Alfredo GRANILLO, Hudgins Roofing Company, and State Farm Mutual Automobile Insurance Company, Defendants-Appellants

No. 55,211-CA

Court of Appeal of Louisiana, Second Circuit.

April 24, 2024

Rehearing Denied May 16, 2024

Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana, Trial Court No. 2019-1228, Honorable Robert C. Johnson, Judge

DAVENPORT, FILES, AND KELLY, LLP, Monroe, By: Carey B. Underwood, NELSON, ZENTNER, SARTOR, AND SNELLINGS, LLC, Monroe, By: Thomas G. Zentner, Jr., Counsel for Appellants

EDDIE CLARK AND ASSOCIATES, LLC, By: Eddie M. Clark, Counsel for Appellee

Before PITMAN, STONE, STEPHENS, ROBINSON, and ELLENDER, JJ.

ROBINSON, J.

₁Plaintiff, Courtney Jo Tully ("Tully") sued Defendants, Alfredo Granillo ("Granillo"), Granillo’s employer, Hudgins Roofing Company ("Hudgins"), and Hudgins’ liability insurer, State Farm Mutual Automobile Insurance Company ("State Farm"), (collectively, "Defendants"), on April 10, 2019, seeking damages for injuries suffered in an automobile collision on April 16, 2018, caused by the negligence of Granillo.

The parties entered into a joint stipulation and consent judgment on June 4, 2020, in which they stipulated that Granillo was an employee of Hudgins working in the course and scope of employment, Hudgins was insured by State Farm, and Defendants were 100% at fault. Prior to trial, Tully filed a motion for partial summary judgment on the issue of causation of injury, as well as motions in limine to exclude Tully’s prior accidents and any evidence concerning force of impact. Judgments granting Tully’s motion for partial summary judgment on causation and motion in limine regarding prior accidents were entered on February 26, 2021. A standing order granting the motion in limine regarding force of impact references and evidence was entered at the onset of trial, on March 16, 2022.

A jury verdict was rendered in Tully’s favor on March 18, 2022, awarding past medical expenses of $95,286, future medical expenses of $1,300,000, and general damages of $1,000,000. A judgment confirming the verdict was entered on March 23, 2022. All post-trial motions were denied by the trial court. Defendants filed a motion for suspensive appeal on June 22, 2022, and an order granting the appeal was signed June 29, 2022.

₂For the following reasons, we REVERSE the trial court’s judgment on Tully’s motion for partial summary judgment on the issue of causation and its order granting Tully’s motion in limine to exclude any reference to or evidence on Defendants’ low impact theory. We VACATE AND REMAND the trial court’s judgment confirming the jury’s verdict on damages and grant a new trial.

FACTS AND PROCEDURAL HISTORY

On April 16, 2018, Granillo, while in the course and scope of his employment for Hudgins, was involved in an automobile accident with Tully. Tully was driving her 2008 Chevrolet HHR SUV on a Monroe city street when Granillo backed out his work truck, a 2016 GMC Silverado truck, from the side of the road into Tully’s lane of travel without warning, resulting in a collision with impact to the passenger side of Tully’s vehicle. Defendants stipulated Granillo was 100% at fault. Both vehicles were drivable after the accident, and no injury was reported at the scene.

The day after the accident, Tully began experiencing pain in her low and middle back, right hip, and neck. She first contacted her attorney, who recommended the use of a chiropractor. Tully began chiropractic treatment with Dr. G.G. Grant two days after the accident. After little progress, Dr. Grant recommended a cervical MRI, which was taken on August 1, 2018, and showed a small bulge at the C5-6 vertebrae without stenosis and a small disc herniation at C6-7. Dr. Grant then referred Tully to Dr. John Ledbetter at Louisiana Pain Care.

Tully had her initial consultation with Dr. Ledbetter on August 20, 2018, for her neck and back pain. Dr. Ledbetter referred Tully to physical ₃therapy, which she attended at Melanie Massey Physical Therapy from September 11 through October 13, 2018. Tully returned to Dr. Ledbetter after physical therapy, still experiencing neck pain.

Medial branch blocks at the right side of C3-6 were performed on February 13, 2019, and the left side on February 20, 2019. Tully reported a 50% reduction in neck pain following the procedures, but pain increased shortly after. A cervical epidural steroid injection was performed on June 3, 2019. Tully again reported a reduction in pain of 50-60%, but had continued stiffness with neck rotation. Bilateral cervical medical branch nerve blocks were again performed on June 24, 2020. Tully reported significant relief but some continued pain, stiffness, and limited range of motion. Dr. Ledbetter then recommended Tully receive bilateral cervical medial branch rhizotomies (ablations). The right side ablation was performed on August 12, 2020, and the left side on September 16, 2020. The procedure significantly helped with pain, but it gradually returned. Dr. Ledbetter performed a second ablation on both sides of the neck in September 2021. Tully returned to Dr. Ledbetter for the last time on October 27, 2021, stating she was very pleased with the response she had to the procedures.

Dr. Harold Katz performed an independent medical examination ("IME") for Tully on July 20, 2020, for headaches, numbness on her right side, and decreased range of motion in her neck. Dr. Katz diagnosed pre-existing cervical spondylosis that was aggravated by the accident, along with a disc herniation at C6-7 with associated mild right C7 weakness, radicular symptoms, cervical headaches, and paresthesia in her right upper extremity. He noted that she was at an increased risk of requiring future neck surgery ₄and recommended that she be evaluated by a spine surgeon. He indicated she would likely benefit from a home exercise program, over-the-counter pain relievers as needed, and a muscle relaxer at bedtime, as well as regular physical therapy.

Dr. Marshall Cain performed an IME for Tully on behalf of Defendants in March 2021. Tully informed Dr. Cain that she was still doing well from the ablations and her herniated disc was not causing her any problems. Dr. Cain agreed that continued ablations were an appropriate pain relief recommendation, but he would not make any projections as to how long she may need them, noting the unpredictable nature of Tully’s condition and that the procedures could provide relief for only a limited amount of time or as long as several years at a time or indefinitely. Dr. Cain’s IME of Tully was taken as a result of Defendants’ motion to compel the IME, which was heard on the same day as the motion for partial summary judgment. The motion to compel the IME was granted, but the record was not left open for the IME and depositions of the IME physician to be introduced as evidence.

Drs. Ledbetter and Katz both testified Tully will more likely than not need bilateral ablations repeated on average once per year indefinitely through her life expectancy, as well as pain management follow-up on an average of twice per year indefinitely through life, and routine physical therapy on an average of eight visits per year through her life. Dr. Grant testified that she will need chiropractic care for several years, though Tully had not had any physical therapy or chiropractic treatments since January 24, 2019, over three years prior to the trial.

₅At the time of the accident, Tully was a single mother to a 13-year-old son and 8-year-old daughter. She had been working at Super Discount Liquor for 12 years and was a part-time professional model. Her job at the store required heavy lifting and other physical activity. There is some dispute as to whether Tully had been working at the liquor store at the time of the accident and whether Tully’s employment was terminated because she was no longer able to perform required tasks or for some other reason. Tully testified that she could also no longer model since it required standing poses for long periods of time and she could no longer participate in intensive gym workouts. She also testified as to her inability to participate in activities with her children as she had previously.

The parties stipulated that the Defendants were 100% at fault. However, Tully filed a motion for partial summary judgment on the issue of causation, as well as a motion in limine to exclude any evidence concerning force of impact. Tully attached to her motion for partial summary judgment, an affidavit from Dr. Ledbetter and accompanying medical records from Louisiana Pain Care, and medical records from Dr. Grant and Shell Chiropractic Clinic. The trial court granted the motion for partial summary judgment, holding that the accident caused the injuries to Tully. The court also granted the motion in limine to exclude photographs of the vehicles and any testimony concerning force of impact or the minor amount of damage caused by the collision.

During closing arguments, Defendants objected to Tully’s "unit of time" reference in their closing argument that broke down the request for $1,000,000 in general damages for Tully’s remaining life expectancy of 43 ₆years to $2.64/hour. The objection was overruled. A jury verdict was ultimately rendered in favor of Tully on March 18, 2022, awarding past medical expenses of $95,286, future medical expenses of $1,300,000, and general damages of $1,000,000. A judgment confirming the verdict was entered on March 23, 2022. Post-trial motions were filed by both parties but denied by the trial court. Defendants filed a motion for suspensive appeal on June 22, 2022, and an order granting the appeal was signed June 29, 2022.

DISCUSSION

Motion for Partial Summary Judgment

Defendants argue that the trial court erred in granting Tully’s motion for partial summary judgment on the issue of causation because a causation...