Warner v. USAA Gen. Indem. Ins. Co.
Warner v. USAA Gen. Indem. Ins. Co.
Opinion of the Court
Appellants, Larry and Ava Warner, appeal the trial court's February 2, 2016 judgment, rendered in accordance with the jury's verdict, and the trial court's August 8, 2016 judgment denying appellants' motion for new trial and/or judgment notwithstanding the verdict (JNOV). For the reasons that follow, we affirm.
Facts and Procedural History
On July 28, 2011, appellant, Larry Warner, was involved in a motor vehicle accident *1244in which Mr. Warner's 18-wheeler truck was hit by a vehicle driven by Patrick Alexis
During the trial on the merits, appellants' case consisted primarily of the testimony from Mr. Warner and the testimony from his treating physicians. The following testimony and evidence was elicited at trial.
Mr. Warner testified that on July 28, 2011, it was raining when he pulled up to the intersection at Mounes Street and South Clearview Parkway. A vehicle was in front of him when he stopped at the red traffic light. The light changed to green and he proceeded forward when he heard a noise and stopped his truck. He opened the door, attempted to grab the bar to get down, and in his words, "the bar was wet and the steps were wet. I fell out of the truck on my butt." He testified that he was in a hurry to get out when he grabbed the bar and that when he hit the ground, his buttocks went numb. On cross-examination, he acknowledged that his feet slipped off the steps because the steps were wet. He conceded that he previously testified in his deposition that he was not in a hurry, he did not mention grabbing the bar to get out of his truck, and when asked if he was injured when he fell he stated, "Counsel, I would suppose so."
Mr. Warner testified that he is 64 years old and has been driving trucks since 1975. He conceded that he had back pain prior to this accident and received treatment from Dr. James Antinnes with Southern Bone & Joint Specialists, P.A, in Hattiesburg, Mississippi. He first saw Dr. Antinnes in 2009 and 2010 for back pain. Dr. Antinnes ordered an MRI and recommended an epidural steroid injection (ESI), which was performed by Dr. Todd Sitzman. He testified that he did not treat with Dr. Antinnes or have any back pain between 2010 and this accident, and was able to return to work consistently. Mr. Warner further acknowledged that he previously received treatment at the Prentiss Family Medical Clinic (Prentiss) for back pain and was prescribed Lortab prior to his accident. The Prentiss medical records showed that he was diagnosed with sciatica in 2009, continued to receive treatment for it in 2010, and was prescribed additional pain medications. Mr. Warner also testified that he injured his shoulder in a separate accident and received treatment at Jefferson Orthopedic Clinic (Jefferson Orthopedic). He additionally received treatment at Ochsner for a torn ligament in his hand and an MRI for his shoulder from an injury unrelated to this case. He admitted that he was also having problems with his back at that time and was prescribed hydrocodone and tramadol.
Mr. Warner testified that he sought medical treatment approximately a week after the July 28, 2011 accident. He subsequently conceded that he was first sent to see Dr. Barry Bordonaro at Allied Adult and Child Clinic (Allied) by his attorney in *1245September 2011, six weeks after this accident. Dr. Bordonaro from September 2011 through March 2012, and received "back and heat treatment and shock." An MRI was performed in 2012. Mr. Warner acknowledged that Dr. Bordonaro's medical records did not mention this accident or that he had been involved in any other accidents in which he was injured.
Mr. Warner next saw Dr. Antinnes. He saw Dr. Antinnes two times in 2012 and told him that his lower back and legs were giving him problems. He did not tell Dr. Antinnes that he had been involved in an accident. Dr. Antinnes ordered an MRI and Mr. Warner received an ESI and hydrocodone. He continued to see Dr. Antinnes through 2014, until Dr. Antinnes recommended surgery. Mr. Warner testified that he was afraid to have surgery at his age, and decided against it. Dr. Antinnes then increased his pain medication. He was last seen by Dr. Antinnes was November 18, 2014.
Mr. Warner stated he next saw Dr. Allen Johnston, at the Louisiana Orthopedic & Spine Institute (Louisiana Orthopedic), for the first time in June or July 2015. Dr. Johnston examined him and performed a procedure in which needles were inserted into his back. Since he received relief from the procedure for six days, Dr. Johnston recommended he have a "burn" procedure performed, which he declined because it was too expensive. Dr. Johnston then prescribed tramadol. On cross-examination, Mr. Warner acknowledged that he told Dr. Johnston that he had a few symptoms from May 2010 through July 2011, and it was raining when he got out of his 18-wheeler, slipped, and landed on his buttocks.
Mr. Warner testified that he decided on his own to stop working in September or October 2011. One of the reasons he could no longer work was because his "back, rear" would start to get numb. He was confronted with his deposition testimony in which he testified that he stopped working in August 2011, and that he had not worked in any capacity since the accident. Mr. Warner conceded that since his accident, he was not declared disabled by any of his doctors and no doctor told him that he should not or could not work. Mr. Warner was also confronted with his medical records dated after this accident, from Louisiana Orthopedic, Jefferson Orthopedic, and St. Elizabeth Physicians (St. Elizabeth) which conflicted with his testimony that he had numbness in his back and that he had stopped working shortly after this accident. His medical records stated that he did not inform his doctors that he had any numbness, he was allowed to drive, he continued to work as a driver after this accident, he did not list prior injuries on his medical forms, and he had no pain in his "spine, ribs, or pelvis."
Mr. Warner testified that as a result of his injuries he can no longer drive his personal truck and has lost personal income, which has financially impacted his life. He could no longer drive because he was taking pain medication after this accident which advised against driving or use of heavy equipment while taking the medication. He testified that although he stopped driving between September and October 2011, he continued work in the administrative functions at his business. Since the accident, he hired a mechanic and someone to drive his personal truck. When he drove, he earned 100% of his average weekly wages, which were between $1,800 and $3,000. On a document created by him and his counsel and shown to the jury, his average weekly wages were listed as $1,800 to $2,500. When he hired someone to drive his personal truck, he paid the driver 33% of the gross amount, which left him receiving 67%, for a "30% loss." He testified that for future lost earnings based on the retirement age of 66 years old, he calculated that would lose "250, 300,000" over the next two years based on an average of $2,300 a week. Mr. Warner further testified that his injuries affected other areas of his life.
*1247Dr. Johnston
Dr. Johnston's medical records showed that Mr. Warner told him that he had an accident in 2010, which resulted in bulging discs and focal protrusions at L3-4 and L4-5, and that Mr. Warner had a few symptoms regarding his back and right leg pain from May 2010 to July 2011. Dr. Johnston reviewed Mr. Warner's MRIs from 2010 and 2012, but conceded he did not look at the MRIs side by side because that is something a radiologist does, and in this case, Dr. Curtis Partington had reviewed the MRIs side by side. Dr. Johnston further conceded that he described the findings on both the 2010 and 2012 MRIs as "age-related" findings and that the 2014 MRI showed a progression of the pathology previously noted. He agreed that part of his treatment was to account for the new findings in the 2014 MRI. Dr. Johnston acknowledged that Mr. Warner did not state he had any numbness on his intake form. He further acknowledged that when he examined him, Mr. Warner had some right leg complaints, which could have been related to his sciatica. Moreover, he conceded that in his report he stated that it was impossible to say with certainty what percentage of Mr. Warner's pain was "facet versus discogenic." He acknowledged that he could not say whether the pain was from the irritation of the facets versus whatever was occurring with his discs. He further conceded that Mr. Warner's facet joints showed wear and tear.
Dr. Curtis Partington testified via video deposition.
Dr. Antinnes
Harold Asher was called as a defense expert.
After the testimony and evidence, the jury found that Mr. Alexis was negligent for the accident. However, the jury found that Mr. Warner was not injured on July 28, 2011, and, therefore, did not award damages to Mr. Warner. The verdict of the jury was made the judgment of the court and all the claims brought by appellants against USAA CIC were dismissed with prejudice. Appellants filed a motion for new trial, or alternatively JNOV, which was denied by the trial court. This appeal followed.
Discussion
An appellate court may not set aside a trier of fact's finding in the absence of manifest error or unless it is clearly wrong. Arabie v. CITGO Petroleum, 10-2605 (La. 3/13/12),
When there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous. Stobart v. State, through Department of Transportation and Development,
In a personal injury case, the plaintiff bears the burden of proving, by a preponderance of the evidence, a causal relationship between the injury sustained and the accident which caused the injury. Stoll v. Allstate Ins. Co., 11-1006 (La. App. 5 Cir. 05/08/12),
Judgment notwithstanding the verdict (JNOV) is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. Lastrapes v. Progressive Sec. Ins. Co., 10-0051 (La. 11/30/10),
The granting or denying of a motion for new trial is within the discretion of the trial court. Davis v. Witt, 02-3102, 02-3110 (La. 07/02/03),
The fact that a determination on a motion for new trial involves judicial discretion, however, does not imply that the trial court can freely interfere with any verdict with which it disagrees. The discretionary power to grant a new trial must be exercised with considerable caution, for a successful litigant is entitled to the benefits of a favorable jury verdict. Fact finding is the province of the jury, and the trial court must not overstep its duty in overseeing the administration of justice and unnecessarily usurp the jury's responsibility.Id. , citing Gibson v. Bossier City General Hospital,594 So.2d 1332 (La. App. 2 Cir. 1991).
In a motion for new trial, the trial court may evaluate the evidence without favoring either party; it may draw its own inferences and conclusions; and evaluate witness credibility to determine whether the jury had erred in giving too much credence to an unreliable witness. Joseph,
In their first and third assignments of error,
Appellants contend that the jury's finding that he was not injured on July 28, 2011 was contrary to the law considering the "uncontroverted testimony, evidence, argument of both counsel presented at trial and certain findings of the jury, and is a clear indication that the jury was confused by the jury verdict form and/or did not understand the application of the duty risk analysis necessary to properly deliberate the merits of this matter." Appellants also argue that the failure to award damages was contrary to the testimony and evidence. Appellants contend that while the parties disputed the extent of the injuries, the pre-existing nature/causation of some of the injuries, and/or the duration of Mr. Warner's injuries, whether Mr. Warner was injured was undisputed, and was admitted to by the appellee, appellee's experts, and appellants. Appellants argue that reasonable minds could not differ in reaching the conclusion that Mr. Warner was injured as a result of the accident, and but for the "woefully inadequate, confusing and insufficient jury instructions" and "verdict form," specifically question number 2, reasonable minds would have concluded Mr. Warner was injured as a result of the accident.
Based on our review of the record, we disagree. The jury's determination that *1252Mr. Warner did not sustain any injuries as a result of the accident is entitled to great deference on appeal, and in this case, it is well supported by a reasonable factual basis in the record. We find that the jury was not manifestly erroneous in finding Mr. Warner's injuries were not causally connected to this accident. Accordingly, we further find that the trial court did not err in denying appellants' motions.
The jury heard inconsistent testimony from Mr. Warner regarding (1) his prior low back and right leg pain, (2) whether the prior pain resolved prior to this accident, (3) the alleged injuries sustained in this accident, (4) injuries sustained a result of unrelated accidents prior to and after this accident, (5) his treatment for this alleged injury and treatment for unrelated injuries, (6) whether he informed all of his treating physicians about this July 28, 2011 accident in connection to his various treatment, (7) whether he was seeking disability for his back after this accident in regards to an unrelated accident, (8) information concerning future medical treatment and (9) no loss of personal income. The testimony and evidence clearly shows that the jury obviously doubted the credibility of Mr. Warner. Furthermore, the testimony and evidence from Dr. Antinnes, Dr. Partington, and Mr. Warner's medical records, apparently carried more weight with the jury than the testimony of Dr. Johnston, which played a role in the jury's determination that Mr. Warner's alleged injuries were not causally related to this accident. Assignments of error one and three are therefore without merit.
In their second assignment of error, appellants contend that the trial court erred in its selection of jury instructions and jury interrogatories/verdict form. Appellants argue the jury instructions and jury interrogatories/verdict form were woefully incomplete and insufficient. Thus, appellants are entitled to de novo review, or alternatively, a remand for new trial. Appellants claim that they timely objected to the inadequacy of both the jury instructions and interrogatories/verdict form to no avail. They contend that the trial court failed to properly explain to the jury the duty risk analysis and its application to this case and also failed to establish that the jury understood the burden of proof, the weighing of evidence, credibility determinations, the role of expert testimony and treating physician testimony. Appellants argue that the trial court deliberately changed or adjusted the jury charges and verdict form such that it was prejudicial to appellants and confused the jury.
La. C.C.P. art. 1792 B requires the trial court to instruct the jury on the law applicable to the cause submitted to them. Wooley v. Lucksinger, 09-571, 09-584, 09-585, 09-586 (La. 04/01/11),
Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues. The trial judge is under no obligation to give any specific jury instructions that may be submitted by either party; the judge must, however, correctly charge the jury. If the trial court omits an applicable, essential legal principle, its instruction does not adequately set forth the issues to be decided by the jury and may constitute reversible error. (Citations omitted.)
La. C.C.P. art. 1793 C provides that "A party may not assign as error the *1253giving or failure to give an instruction unless he objects thereto either before the jury retires to consider its verdict or immediately after the jury retires, stating specifically the matter to which he objects and the grounds for his objection." In order to preserve the right to appeal a trial court's failure to give a requested instruction or its giving of an erroneous instruction, a party must make a timely objection and state the grounds for that objection. Willis v. Ochsner Clinic Found., 13-627 (La. App. 5 Cir. 04/23/14),
The record establishes that the first time the trial court asked the parties if they had any objections to the jury instructions, appellants' counsel stated they did not have any objections. Appellee then stated its respective objections. After the trial court started changing some of the jury instructions based on appellee's objections, appellants' counsel objected to the trial court taking items out of the jury instructions.
The record further shows that appellants' counsel objected to a few of the items listed on the updated jury verdict form. At appellants' request, the trial court swapped number 1 and 2 on the verdict form, agreed to the amendment in number 3, and separated out the "past" and "future" columns for wages and the same for loss of enjoyment of life in number 8. The only objection not specifically addressed by the trial court was with regard to appellants' objection to the inclusion of number 4. After the trial court changed, moved, or otherwise kept items in the verdict form, appellants' counsel did not object to the final version of the verdict *1254form, which included number 4.
In their fourth assignment of error, appellants contend the trial court erred in limiting counsel during voir dire and erred in "forcing/limiting counsel and the jury into closing and deliberations under penalty of counsel having to pay to keep the courthouse open and the court having a problem with same." Appellants argue that this limitation denied them their constitutional right to a full and fair voir dire examination, which ultimately prejudiced appellant's ability to examine and ascertain whether or not the prospective jurors had the ability and understanding to adequately analyze and understand how to apply the applicable law to the facts of the case. Appellants also contend that prior to the start of voir dire , the trial court excluded a potential prospective juror based on the court's past personal prejudice to the potential juror without giving appellants the opportunity to conduct voir dire on said juror to determine if the juror was capable of rendering an impartial verdict according to law.
La. C.C.P. art. 1763 allows the parties or their attorneys to individually examine prospective jurors as each party deems necessary, but the trial court may control the scope of the examination conducted by the parties or their attorneys. The purpose of voir dire is to develop the prospective juror's state of mind, not only to enable the trial court to determine actual bias, but to enable counsel to exercise his intuitive judgment concerning the prospective jurors' possible bias or prejudice. Schouest v. Burr, 09-356 (La. App. 5 Cir. 01/12/10),
A review of the record establishes that appellants were not denied a full and fair voir dire . Moreover, appellants fail to specifically state how and in what manner the trial court precluded them a full and fair voir dire . In fact, the record shows that the trial court afforded appellants' counsel an extensive voir dire examination of both jury panels with only minimal interruption from the trial court to explain the process and purpose of voir dire to both counsel.
As to the trial court's removal of a potential juror, the record shows that *1255prior to the prospective jurors entering the courtroom, the trial judge revealed to both counsel at the bench that one of the jurors should be removed from the jury because she represented the juror's ex-husband in a contentious domestic matter. The trial judge stated that the prospective juror did not "even need to come in the courtroom." Neither counsel objected to the removal of this prospective juror. Once the juror was removed, the remaining jurors entered the courtroom wherein they were sworn in prior to examination. We do not find that the trial court abused its discretion in dismissing a prospective juror prior to the jurors entering the courtroom and prior to the jurors being sworn. La. C.C.P. art. 1761 ; La. C.C.P. art. 1762.
Regarding appellants' contention that the trial court erred in "forcing/limiting counsel and the jury into closing and deliberations under penalty of counsel having to pay to keep the courthouse open and the court having a problem with same," we find this argument is without merit. Appellants did not specifically brief or state how the trial court limited their closing argument or forced early deliberations. Moreover, the record does not support this argument.
*1256Conclusion
For the reasons stated above, we affirm the February 2, 2016 and August 8, 2016 judgments.
AFFIRMED
Prior to the start of trial, USAA CIC moved to dismiss its insured, Mr. Alexis, who was named as a defendant but was not served. The trial court dismissed Mr. Alexis, and the case proceeded against USAA CIC as the insurer under the Direct Action Statute, R.S. 22:1269 B(1)(a)(c).
Appellant, Mrs. Warner, also had a claim for loss of consortium, support, love, and affection.
The form stated that Mr. Warner was "at stop sign but pulled over check 18-wheeler. Got out of truck and slipped on wet pavement." On the form, Mr. Warner was asked if he had ever been involved in any other accidents in which he was injured and he checked the "No" box and under the section that states "describe" he wrote "none."
The intake form, dated October 12, 2012, stated that Mr. Warner was not currently having problems with "neurological numbness, tingling, balance," and his occupation was listed as "driver." St. Elizabeth's medical records, dated February 12, 2012, stated that Mr. Warner was occasionally working, he had no numbness, and he did not list a history of any injuries. St. Elizabeth's records, dated May 14, 2013, stated he had a shoulder complaint and was prescribed Lortab. St. Elizabeth's records, dated March 22, 2013, stated he was prescribed more pain medication and he had no pain after a spine, rib, pelvis inspection. Dr. Johnston's medical records showed that Mr. Warner underlined "No" in answer to whether he had "numbness, tingling, pins and needles or falling asleep in your legs." Jefferson Orthopedic medical records, dated February 1, 2013, provided "patient may drive." Another medical record provided that Mr. Warner was seen for a work-related injury with symptoms beginning on October 9, 2012, 15 months after this accident. Another medical record, dated October 26, 2012, provided that Mr. Warner sustained a fall at work.
Ava Warner testified that she has been married to Mr. Warner for 40 years and they have three children. From her perspective the accident affected her husband emotionally, physically and financially. Prior to the accident, Mr. Warner was independent and always on the go. Since the accident, he gets upset easily, frustrated, and is not able to perform everyday activities, such as cutting the grass, fixing things around the house, taking out the trash, riding horses, dancing, or going on walks. Prior to the accident, he only took medication for his ulcers and now he takes several different pain medications. Because he is always medicated, Mr. Warner can no longer work, which impacts the family financially. Additionally, they used to be intimate all the time, "four times a week or more," and now they are no longer intimate.
He testified that prior to the accident he used to have sex on the weekends because he worked during the week. After the accident, he did not have "inspiration" to perform due to the medications he was prescribed.
Dr. Johnston was qualified as an expert in the field of orthopedics.
Dr. Partington was qualified as an expert in general diagnostic radiology and neuro radiology.
Dr. Antinnes is licensed to practice in Mississippi and qualified as an expert in orthopedic spine surgery.
He was qualified as an expert in the field of CPA, forensic CPA, and in calculating economic loss and projections.
The parties did not appeal the finding of the jury that Mr. Alexis was at fault for the July 28, 2011 accident, and that USAA CIC was Mr. Alexis' insurer at the time of the accident. Thus, a determination of fault is not considered in this appeal.
We find the charges read as a whole sufficiently informed the jurors of the correct law.
Although it is difficult to determine from the transcript, appellant appears to have objected in part to the removal of instructions concerning intersectional cases, the addition of the requirement of proving residual disability for future wages even though it was a correct statement of law, and the trial court's refusal to change "gross income" to "personal income" in the wage instructions, even though appellant did not have any law to support their position. On appeal, appellants' contend the jury instructions were incorrect regarding the duty risk analysis and its application to this case and that the trial court also failed to establish that the jury understood the burden of proof, the weighing of evidence, credibility determinations, the role of expert testimony and treating physician testimony. Appellants did not object to the jury instructions regarding the issues presented in this appeal.
However, the jury found that Mr. Warner was not injured on question number 2 and then signed the form. Therefore, the jury did not get to question number 4.
For example, at one point during appellants' voir dire of the first panel, the trial court called both counsel to the bench, out of the hearing of the jurors, and stated the following:
I've let it go on and on and on but we are not pre-trying this case to the jury. As I just said, we're testing issues of law and whether or not the juries [sic] can follow the law. We're not talking about Mr. Warner's case, not in a voir dire . You are pre-trying this case to each individual juror and I'm not going to-and you haven't objected but I'm sitting here and we're not going to talk about Mr. Warner or Mr. Warner's case. We're going to talk about theories of law and whether or not this jury is biased, will follow the law, et cetera, et cetera. But we're not going to go into Mr. Warner's case specifically.
Does everybody understand? It's going to apply to you, too.
Both counsel responded that they understood and appellants' counsel did not object to this admonishment from the trial court regarding the purpose of voir dire . The trial court's admonishment in no way limited appellants' counsel from continuing her voir dire . Appellants' counsel continued voir dire and shortly thereafter, the trial court called the parties to the bench again. The following conversation occurred:
Mr. Nieset: Now we're pre-trying the wage part.
The Court: No, She's [Ms. Benoit] giving a hypothetical and she's allowed to test that. She's allowed to test that. She's not allowed to test whether or not they can apply the law. But you've been voir diring for an hour and a half.
Ms. Benoit: Okay
The Court: We need to get this moving.
Ms. Benoit: I'm wrapping up.
Whereupon, Ms. Benoit, appellants' counsel continued with her voir dire of the first panel without any limitation by the trial court. During examination of the second panel, the trial court did not say or limit appellants' voir dire examination in any way.
The following conversation occurred between the trial court and counsel:
The Court: How long do you think closing will be?
Mr. Nieset: I'd say 10 minutes, 15.
Ms. Benoit: I can't say, Judge. I would probably say 20, 25 minutes, our Honor.
The Court: Okay. It is 4:54. If the jury is not deliberating by 7:00 o-clock, the attorneys will be charged $650 to $750 an hour.
Ms. Benoit: Do you mean completely finished or having not started?
The Court: At 7:00 o'clock, they need to be in the back deliberating; otherwise, I'm ordered to send them home and come back, unless you pay to keep the building open.
Mr. Nieset: That's two hours.
The Court: That's two hours. I've sat in this case for three days now, so that's why I asked. If anybody thinks that they're going to give closing arguments for an hour and a half, then we're going to have a problem. Bring in the jury.
Based on a clear reading and understanding of the conversation between the trial court and counsel, the trial court did not limit either counsel's argument nor did the trial court force closing or deliberations under penalty of paying to keep the courthouse open. The trial court apprised the parties of the rules for keeping the courthouse open past 7:00 P.M. The parties did not object to this information.
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