Opinion
2011 CA 1639
06-05-2013
DOUGLAS MONTGOMERY HILL AND DONNA B. HILL v. STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS AND/OR LOUISIANA STATE POLICE AND JOHN DOE, INDIVIDUALLY AND AS AN EMPLOYEE OF LOUISIANA STATE POLICE
Glynn J. Delatte, Jr. Baton Rouge, Louisiana and Todd C. Comeaux Baton Rouge, Louisiana Counsel for Plaintiff/Appellee Douglas Hill Brenda H. Verbois Baton Rouge, Louisiana Counsel for Defendant/Appellant State of Louisiana through the Department of Public Safety & Corrections
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Docket No. 512,296
Honorable Wilson J. Fields, Judge Presiding
Glynn J. Delatte, Jr.
Baton Rouge, Louisiana
and
Todd C. Comeaux
Baton Rouge, Louisiana
Counsel for Plaintiff/Appellee
Douglas Hill
Brenda H. Verbois
Baton Rouge, Louisiana
Counsel for Defendant/Appellant
State of Louisiana through the
Department of Public Safety &
Corrections
BEFORE: WHIPPLE, C.J., PETTIGREW, McCLENDON, WELCH, and CRAIN, JJ.
Welch , J.
The State of Louisiana, Department of Public Safety and Corrections (DPSC) appeals the judgment of the trial court, following a jury trial, wherein the jury found that DPSC was the legal cause of injuries suffered by the plaintiff, Douglas M. Hill, and awarded him damages. DPSC also appeals the grant of two partial motions for summary judgment filed by Mr. Hill determining that Mr. Hill was the subject of an intentional tort and dismissing DPSC's affirmative defense of comparative fault. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
This suit arises from an incident that occurred on October 8, 2002, during a mandatory police training class at the Louisiana State Police Training Academy. On that date, Mr. Hill, a state trooper employed by DPSC, and an unidentified co-employee were participating in a defensive training tactics session. While Mr. Hill and his partner were engaged in an "arm bar takedown" maneuver, Mr. Hill's partner jerked Mr. Hill to the ground and dropped his knees on Mr. Hill's neck and back. Claiming that the take-down maneuver caused Mr. Hill to sustain injuries to his back, neck, and other parts of his body, Mr. Hill and his wife, Donna, filed this lawsuit on September 29, 2003, against DPSC.
The lawsuit also named the Louisiana State Police and John Doe, an unidentified co-employee, as a defendant. Mr. Hill's training partner was never identified.
DPSC filed an answer on January 26, 2004, and raised several affirmative defenses, including comparative fault, consent, and Mr. Hill's exclusive remedy under workers' compensation law. Thereafter, on April 15, 2008, the Hills filed a motion for a partial summary judgment seeking a judgment decreeing that DPSC was 100% at fault for the injuries Mr. Hill sustained in the work accident. Following a hearing, the trial court issued a judgment on January 16, 2009, in favor of Mr. Hill, granting his motion for partial summary judgment on the issue of liability, The judgment further decreed that DPSC was liable to Mr. Hill for the accident of October 8, 2002. On March 20, 2009, the trial court designated and certified the January 16, 2009 judgment as a final judgment under La. C.C.P. art. 1915(B) for the purpose of an immediate appeal. DPSC's appeal of the judgment was dismissed on June 29, 2009, after DPSC failed to timely file an appellant brief.
Mr. Hill previously filed a claim for benefits with the Office of Workers' Compensation.
The court also determined:
It is in the interest of judicial economy to determine the correctness of the judgment on liability in advance of a trial on quantum. Should the above referenced Judgment be reversed and the case remanded, the liability issue would be decided by a different jury. It is in the interest of justice and judicial economy to have the same jury decide the issue of liability and the issue of quantum. Based on the foregoing, the Court finds no just reason for delay of an immediate appeal.
The per curiam order from this court provided:
Appellant having failed to timely file a brief within the period of time provided by Rule 2-12.7 of the Uniform Rules of the Courts of Appeal, and having been duly notified in accordance with Rule 2-8.6, and thirty (30) days having passed since the mailing of the notice and no brief having been filed, this appeal is hereby dismissed.
APPEAL DISMISSED.
Thereafter, on February 17, 2010, the Hills filed a motion for summary judgment seeking the dismissal of DPSC's defense of comparative fault. DPSC opposed the motion, to which the Hills responded. Following a hearing on April 26, 2010, the trial court rendered judgment on May 17, 2010. In said judgment, it was decreed that: 1) Mr. Hill committed no intentional acts to provoke his partner to use unnecessary and unanticipated force during the arm bar takedown exercise October 8, 2010; 2) there be judgment rendered in favor of Mr. Hill, granting his motion for summary judgment to dismiss defendants' affirmative defense of comparative fault; and 3) there was no genuine issue of material fact of an intentional tort committed by Mr. Hill during the mandatory defense tactics training class. Subsequently, this court declined to exercise supervisory jurisdiction and denied DPSC's application for supervisory writs.
See Hill v. State, through the Department of Safety and Corrections, 2010 CW 0958 (La.App. 1 Cir. 6/21/10) (unpublished writ action).
The case proceeded to a trial by jury on the issue of damages, beginning on July 28, 2010, and lasting for three days. The jury reached a verdict on July 30, 2010, and completed the Jury Verdict Form, returning a verdict as follows:
Also on July 30, 2010, the trial court signed Ms. Hill's Motion and Order for Partial Dismissal, in which she requested that her loss of consortium claim be dismissed with prejudice.
1) Do you find that the Defendant, State of Louisiana through Dept. of Public Safety & Corrections, was the legal cause of any of Douglas Hill's injuries (neck, wrist, elbows or aggravation of lower back)?Additionally, a bench trial was held outside the presence of the jury to consider DPSC's claim that it was entitled to a credit for all workers' compensation benefits paid or to be paid to Mr. Hill, and the matter was taken under advisement.
YES √ NO ___
If your answer is "Yes", proceed to question number 2; If your answer is "No", Please have the jury foreperson sign and date the form and notify the bailiff.
2) State the amounts, in dollars and cents, which would reasonably and fairly compensate Douglas Hill, for the following losses he sustained as a result of the incident?
a) Past Medical Expenses $550,030.20
b) Past Lost Wages $226,308.00
c) Future Lost Wages $276,427.00
d) Past Present and Future Physical Pain and Suffering $500,000.00
e) Past Present and Future Mental Pain and Suffering $500,000.00
f) Loss of Enjoyment of Life $200,000.00
g) Physical disability $200,000.00
On March 25, 2011, after giving oral reasons on DPSC's indemnity claim, the trial court signed its judgment in conformity with the jury's verdict and additionally ordering that: 1) DPSC was entitled to a credit for the past paid workers' compensation indemnity benefits in the amount of $111,853.39 previously paid to Mr. Hill; 2) DPSC was entitled to a credit for any future workers' compensation indemnity wages paid to Mr. Hill; 3) DPSC was not entitled to a credit, write-off, or offset for any medical payment previously paid on behalf of Mr. Hill because DPSC failed to provide Mr. Hill's counsel with any exhibits prior to trial as required by the case management schedule and because DPSC failed to put in any evidence of actual write-offs, as the medical bills submitted by the Hills were redacted and did not indicate a write-off by the medical providers; 4) DPSC was not entitled to a credit, write-off, or offset for any future medical payments paid on behalf of Mr. Hill, as the judgment did not encompass an award for future medical expenses; and 5) all court costs be assessed to DPSC.
DPSC timely filed a suspensive appeal and assigns the following specifications of error:
1. The trial court erred in admitting prejudicial evidence of "compensability" under workers'] compensation law of specific medical procedures undergone by [Mr. Hill] in this separate tort proceeding - justifying review de novo of the issue of medical causation.
2. It was manifest error for the jury to find that the 10-8-02 incident caused [Mr. Hill's] low back to require the surgeries and treatment undergone after the incident.
3. The trial court erred in failing to admit evidence before the Judge of medical expenses paid by the state in its capacity as [Mr. Hill's] workers'] compensation carrier failing to allow [DPSC] credit for such payments.
4. The trial court erred in finding that the fault of [Mr. Hill] should not be determined at the trial of this matter.
5. The trial court erred in finding there was no genuine issue of material fact in dispute regarding whether the conduct of [Mr. Hill] was an intentional act.
6. The trial court erred in finding there was no genuine issue of material fact in dispute regarding whether the incident was an intentional act, or whether it was a negligent act on the part of the co-employee based upon information contained in [Mr. Hill's] medical records.
7. The trial court erred in denying the admissibility of certified copies of the records of Dr. Joe Morgan and in failing to consider the issue of fact raised in such records.
DISCUSSION
The motions for summary judgment
DPSC's last four assignments of error address the two partial summary judgments rendered in this matter on January 16, 2009 and on May 17, 2010 prior to. trial. We first address DPSC's last two assignments of error as they pertain to Mr. Hill's first partial motion for summary judgment rendered on January 16, 2009.
When an unrestricted appeal is taken of a final judgment determinative of the merits, the appellant is generally entitled to seek review of all adverse interlocutory judgments prejudicial to him, in addition to the review of the final judgment. See Judson v. Davis, 04-1699, p. 8 (La. App. 1 Cir. 6/29/05), 916 So.2d 1106, 1112, writ denied, 05-1998 (La. 2/10/06), 924 So.2d 167.
In these assignments of error, DPSC contends that: 1) the trial court erred in finding there was no genuine issue of material fact in dispute regarding whether the incident was an intentional act or whether it was a negligent act on the part of the co-employee based upon information contained in Mr. Hill's medical records; and 2) the trial court erred in denying the admissibility of certified copies of the records of Dr. Joe Morgan and in failing to consider the issue of fact raised in such records. DPSC argues that Mr. Hill's credibility is at issue based on Dr. Joe Morgan's testimony and records, which indicate that the unidentified co-employee got his feet caught on the floor and fell on Mr. Hill. Thus, DPSC argues a genuine issue of material facts exists as to whether the actions of the co-employee were intentional.
Generally, any action by a worker against his employer for injuries suffered during the course and scope of employment would be exclusively through the Louisiana Workers' Compensation Act, La, R.S. 23:1032, which provides immunity from civil liability in favor of an employer. Cole v. State Department of Public Safety and Corrections, 01-2123, p. 4 (La. 9/4/02), 825 So.2d 1134, 1138. It is well settled that under the provisions of La. R.S. 23:1032, a worker is ordinarily limited to recovering workers' compensation benefits rather than tort damages for these injuries. However, Section 1032B provides an exception to this exclusivity when a worker is injured as a result of an employer's intentional act. When a plaintiff sustains damages as a result of an intentional battery committed by a co-employee during the course and scope of employment, the exclusivity provisions of the Louisiana Workers' Compensation Act do not apply. Cole, 01-2123 at pp. 4-5, 825 So.2d at 1138-39.
Louisiana Revised Statutes 23:1032, provides, in pertinent part:
A. (1)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages,....
* * *
B. Nothing in this Chapter shall affect the liability of the employer, or any officer, director, stockholder, partner, or employee of such employer or principal to a fine or penalty under any other statute or the liability, civil or criminal, resulting from an intentional act.
In the case sub judice, Mr. Hill alleged that the co-employee acted intentionally, with unnecessary and unanticipated force, in bringing him to the ground during the training exercise. In order to grant summary judgment in his favor on January 16, 2009, finding DPSC liable in tort, for the accident of October 8, 2002, the trial court had to conclude that Mr. Hill was injured as the result of an intentional tort. Otherwise, Mr. Hill would not have been permitted to pursue his claim for tort damages.
We observe that DPSC appealed the January 16, 2009 partial summary judgment, which, upon joint motion of the parties, had been certified as a final and appealable judgment under La. C.C.P. art. 1915(B). The record was subsequently lodged with this court. However, after this court issued a show cause order notifying DPSC that the appeal would be dismissed as abandoned if a brief was not filed within 30 days of said notice, the judgment acquired finality when DPSC failed to pursue the appeal of that judgment. DPSC cannot now seek reconsideration or re-litigation of the trial court's finding that the co-employee's actions were intentional, as this would amount to an impermissible attempt to collaterally attack the January 16, 2009 final judgment. Accordingly, any claims that the co-employee's acts were not intentional are now precluded, and we do not address DPSC's last two assignments of error. See Edwards v. Chrysler Motor Co., Inc., 07-0326, p. 4 (La. App. 1 Cir. 2/8/08), 984 So.2d 85, 88. See also La. R.S. 13:4231.
A collateral attack is defined as an attempt to impeach the decree in a proceeding not instituted for the express purpose of annulling it. Knight v. Sears, Roebuck & Co., 566 So.2d 135, 137 (La. App. 1 Cir.), writ denied, 571 So.2d 628 (La. 1990). See also Smith v. LeBlanc, 06-0041, pp. 5-6 (La. App. 1 Cir. 8/15/07), 966 So.2d 66, 71-72.
In Mandalay Oil & Gas, L.L.C. v. Energy Development Corp., 01-0993, 9 (La. App. 1 Cir. 8/4/04), 880 So.2d 129, 135-36, writ denied, 04-2426 (La. 1/28/05), 893 So.2d 72, we stated:
La. R.S. 13:4231 embraces the broad usage of the phrase "res judicata" to include both claim preclusion (res judicata) and issue preclusion (collateral estoppel). Under claim preclusion, the res judicata effect of a final judgment on the merits precludes the parties from relitigating matters that were or could have been raised in that action. Under issue preclusion or collateral estoppel, however, once a court decides an issue of fact or law necessary to its judgment, that decision precludes relitigation of the same issue in a different cause of action between the same parties. Thus, res judicata used in the broad sense has two different aspects: (1) foreclosure of relitigating matters that have never been litigated, but should have been advanced in the earlier suit; and (2) foreclosure of relitigating matters that have been previously litigated and decided.
Next, we turn to DPSC's fourth and fifth assignments of error, wherein DPSC challenges the grant of Mr. Hill's second motion for summary judgment rendered on May 17, 2010, that dismissed DPSC's affirmative defense of comparative fault, finding no genuine issue of material fact as to whether an intentional tort was committed by Mr. Hill. DPSC suggests that Mr. Hill may have "intentionally subjected himself to an aggravation of his symptomatic back condition" and consented to the training exercise and all reasonably anticipated consequences thereof and, therefore, should be guilty of comparative fault.
Summary judgment is subject to de novo review on appeal, using the same standards applicable to the trial court's determination of the issues. Berard v. L-3 Communications Vertex Aerospace, LLC, 09-1202, p. 5 (La. App. 1 Cir. 2/12/10), 35 So.3d 334, 339-40, writ denied, 10-0715 (La. 6/4/10), 38 So.3d 302. The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. La. C.C.P. art. 966(A)(2). Its purpose is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Hines v. Garrett, 040806, p. 7 (La. 6/25/04), 876 So.2d 764, 769. The mover has the burden of proof that he is entitled to summary judgment. La. C.C.P. art. 966(C)(2). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).
In support of its argument that summary judgment on the issue of comparative fault was inappropriate, DPSC directs this court to La. C.C. art. 2323, which provides:
A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person's insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss.Based on this civil code article, according to DPSC, the trial court erred in failing to determine the comparative fault of Mr. Hill in the October 8, 2002 incident. DPSC seems to be asserting that because Mr. Hill may have acted intentionally by participating in the class, the fault of each intentional tortfeasor should be determined, and it cites the supreme court case of Landry v. Bellanger, 02-1443 (La, 5/20/03), 851 So.2d 943, in support thereof. In Landry, the supreme court determined that the fault of the intentional actors could be compared in the face of the silence of La. C.C. art. 2323(C) regarding how to address the comparative fault of two intentional actors. In such a case, the court found the provisions of Section C to be inapplicable. Landry, 02-1443 at p. 14, 851 So.2d at 954.
B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability.
C. Notwithstanding the provisions of Paragraphs A and B, if a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tortfeasor, his claim for recovery of damages shall not be reduced.
We recognize that the defense of consent in Louisiana operates as a bar to recovery for the intentional infliction of harmful or offensive touchings of a victim. Cole, 01-2123 at p. 11, 825 So.2d at 1142. However, the use of unnecessary and unanticipated force vitiates consent. Cole, 01-2123 at p. 12, 825 So.2d at 1143. Thus, whether Mr. Hill was at fault by consenting to participate in the training exercise was decided in the negative when Mr. Hill's first motion for summary judgment became final. The factual finding that the co-employee committed the intentional tort of battery precluded the finding of consent. DPSC's attempt to re-litigate this issue is without merit.
In White v. Monsanto Company, 585 So.2d 1205, 1208 (La. 1991), the supreme court, when considering the intentional act exception to the exclusivity provision of the workers' compensation act, defined "intentional act" as follows:
The meaning of "intent" is that the person who acts either (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Thus, intent has reference to the consequences of an act rather than to the act itself. Only where the actor entertained a desire to bring about the consequences that followed or where the actor believed that the result was substantially certain to follow has an act been characterized as intentional.Additionally, "substantially certain to follow" requires more than a reasonable probability that an injury will occur, and "certain" has been defined to mean "inevitable" or "incapable of failing." Reeves v. Structural Preservation Systems, 98-1795, p. 9 (La. 3/12/99), 731 So.2d 208, 213. Further, mere knowledge and appreciation of a risk does not constitute intent, nor does reckless or wanton conduct by an employer constitute intentional wrongdoing. Id. See also Daigre v. International Truck and Engine Corp., 10-1379, p. 13 (La. App. 4 Cir. 5/5/11), 67 So.3d 504, 512, writ denied, 11-1099 (La. 9/16/11), 69 So.3d 1144.
In this matter, the record shows that when employed by DPSC in 1999, Mr. Hill signed a pre-existing conditions form, disclosing a prior back injury. The record also shows that prior to the incident Mr. Hill had no work restrictions and that he was required to attend the training course as part of his employment. In his deposition, Mr. Hill stated that he had previously participated in the annual training exercises in 1999, 2000, and 2001. He also stated that on October 8, 2002, there had been no problems with previous maneuvers that day, and he and his partner went through the motions with very little force. He testified that the instructor had demonstrated the arm bar takedown exercise, and Mr. Hill admitted that he knew that part of the maneuver involved taking him down to the ground. He stated, however, that the force with which his partner brought him to the ground was unexpected. At trial, he described the incident as follows:
We were in a defensive tactics class and we were doing an arm bar takedown to handcuffing and the instructor was walking up from the right and I turned to see what she was saying and the partner that I was partnered with jerked me to the ground and dropped his knees on my neck and back. I saw stars and had pain.
Upon our de novo review of the record, we cannot reasonably say that it was substantially certain that by participating in the training exercises, Mr. Hill would be injured. Thus, we find no error in the trial court's grant of summary judgment, dismissing DPSC's affirmative defense of comparative fault.
Accordingly, the Landry case, cited by DPSC, is factually distinguishable.
Evidentiary Rulings
DPSC alleges in two of its assignments of error the trial court committed certain evidentiary errors. We must first address the evidentiary challenges because a finding of an evidentiary error may affect the applicable standard of review, in that this court must conduct a de novo review if the trial court commits an evidentiary error that interdicts the fact finding process, Devall v. Baton Rouge Fire Department, 07-0156 (La. App. 1 Cir. 11/2/07), 979 So.2d 500, 502; Wright v. Bennett, 04-1944, p. 6 (La. App. 1 Cir. 9/28/05), 924 So.2d 178, 182.
The party alleging prejudice by the evidentiary ruling of the trial court bears the burden of so proving. Generally, the trial court is granted broad discretion in its evidentiary rulings and its determinations will not be disturbed on appeal absent a clear abuse of that discretion. Wright, 04-1944 at pp. 6-7, 924 So.2d at 183. Additionally, La. C.E. art. 103(A) provides, in pertinent part, that "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected." The proper inquiry for determining whether a party was prejudiced by a trial court's alleged erroneous ruling on the admission or denial of evidence is whether the alleged error, when compared to the entire record, had a substantial effect on the outcome of the case. If the effect on the outcome is not substantial, reversal is not warranted. Wright, 04-1944 at p. 6, 924 So.2d at 183.
In its first assignment of error, DPSC contends that the trial court erred in admitting prejudicial evidence of "compensability" under workers' compensation law of specific medical procedures undergone by Mr. Hill in this tort proceeding in violation of La. C.E. art. 414, which provides as follows:
Evidence of the nature and extent of a workers' compensation claim or of payment of past or future workers' compensation benefits shall not be admissible to a jury, directly or indirectly, in any civil proceeding with respect to a claim for damages relative to the same injury for which the workers' compensation benefits are claimed or paid. Such evidence shall be admissible and presented to the judge only.Although stipulating that the fact of payment of workers' compensation payments could be presented to the jury, DPSC now insists that Mr. Hill's attorney attempted to use evidence regarding payments made in the workers' compensation claim to circumvent his burden of proof in this tort proceeding regarding medical causation. DPSC contends that the trial court allowed Mr. Hill to go beyond the stipulation and question the workers' compensation adjuster, Tami Bartlett, regarding payment and "compensability" of specific medical procedure under workers' compensation, but foreclosed it from showing the decision to pay compensation was based on different evidence. DPSC asserts that the error interdicted the fact finding process on medical causation, requiring a de novo review of the jury's causation determination.
The record reflects that at the outset of the trial, counsel for DPSC and Mr. Hill entered into a stipulation regarding the payment of compensation benefits by DPSC. DPSC's attorney expressed her belief that it would be prejudicial to the state for the jury to believe that nothing had been paid by DPSC on Mr. Hill's behalf. Thereafter, the parties stipulated to allow the jury to hear that workers' compensation benefits had been paid by DPSC, but the actual dollar amount of the payment would not be published to the jury. The parties also stipulated that a special jury instruction would be provided to the jury regarding the payment of compensation benefits. At the conclusion of the trial, the trial court instructed the jury in accordance with the stipulation as follows:
If you find that the plaintiff has incurred any medical expenses...you are not entitled to make any offsets, deductions, or credits for any workers' compensation benefits that you believe may have been paid. As jurors, you were not provided those dollar amounts based upon the Louisiana Code of Evidence article 1414 [sic], which dictates it is the sole responsibility of the presiding judge to compute these calculations if plaintiff proves that he has incurred or sustained loss of medical expenses..., you are instructed to make an
award for the full amount of such damages you find are related to the incident of October 8, 2002. After the verdict is returned to the court, I will apply all offsets, deductions, and/or credits for which workers' compensation is entitled.
The record reflects that Ms. Bartlett was asked whether a determination of compensability was made after the investigation of Mr. Hill's claim, and counsel for DPSC objected, stating that compensability was an issue in the workers' compensation suit and not in the tort suit. Therefore, according to counsel, the questioning was not relevant and went beyond the scope of the parties' stipulation. DPSC's counsel also argued to the court that Mr. Hill's counsel was trying to use the compensation payments to show that Mr. Hill's injuries were causally related to the incident. The trial court overruled the objection. Mr. Hill's counsel then asked Ms. Bartlett whether her office determined that the October 8, 2002 incident was a compensable claim, to which Ms. Bartlett responded: "Evidently, because the benefits were initiated."
Immediately thereafter, counsel for Mr. Hill sought to introduce Form 1002, a Notice of Payment to Mr. Hill from the Office of Risk Management, into the record. DPSC's counsel objected again, stating that Mr. Hill's counsel was trying to go beyond the stipulation in that the parties only agreed to let the jury hear that some benefits were paid, not for what particular injuries the benefits were paid. The objection was overruled, and the exhibit was introduced. The amount of the payment was redacted from the form. Ms. Bartlett was questioned regarding the form. She stated that in DPSC's report of the accident to the Office of Workers' Compensation (OWC), DPSC stated that Mr. Hill sustained an injury to his lumbar region, specifically, a ruptured disc, on October 8, 2002.
Mr. Hill's attorney also asked Ms. Bartlett whether any of the medical procedures required by the treating physicians were denied by the employer. DPSC again objected to the question as being outside the scope of the stipulation and an attempt to prove that Mr. Hill's injuries were related to the October 8, 2002 incident. DPSC's objection was overruled, and Ms. Bartlett testified that the procedures performed by Drs. Gick and Waguespack were all approved by the employer.
Mr. Hill contends that the subsequent admission of medical records, invoices, bills, and testimony of his treating physicians belies DPSC's argument that the complained of evidence was offered to prove medical causation. Mr. Hill argues that DPSC has not shown that the admission of the complained of evidence was prejudicial to DPSC. We agree. The record reflects that Mr. Hill offered substantial evidence to meet his burden on the issue of medical causation, including numerous medical records and the testimony of his treating physicians, Dr. Ruben Patel, Dr. Stephen Gick, and Dr. Gorge Jiha. DPSC offered evidence in an attempt to refute Mr. Hill's medical causation evidence, including medical records and the testimony of Dr. Joe Morgan. Given the substantial evidence presented by Mr. Hill to the jury on the issue of medical causation, the parties' pre-trial stipulation that the jury could hear evidence of the fact of payment of compensation benefits, along with the trial court's limiting instruction to the jury, we are unable to find that the complained of incidences of references to compensability of Mr. Hill's medical procedures had a substantial effect on the jury's causation determination. Because DPSC failed to demonstrate a prejudicial error interdicting the jury's causation determination, we shall review that determination under the manifest error standard of review.
In its third assignment of error, DPSC contends that the trial court erred in failing to allow the admission of evidence of medical expenses paid by the state in its capacity as Mr. Hill's workers' compensation carrier and in failing to allow DPSC credit for such payments. It contends it is entitled to a credit for all workers' compensation benefits, both indemnity and medical, paid or to be paid in the future, to or on behalf of Mr. Hill against the tort judgment rendered against it. It also contends it is entitled to a credit for any write-offs made by any healthcare provider due to the fact that workers' compensation paid the healthcare providers' bills.
After the trial was held and the jury retired to deliberate, DPSC sought to introduce evidence before the trial court regarding workers' compensation payments made to or on behalf of Mr, Hill. At the outset, counsel for Mr. Hill objected to the anticipated introduction of summaries of workers' compensation payments, urging that while Article 1006 of the Code of Evidence permits summary calculations with supporting documents, Mr. Hill had never been given advance notice or the opportunity to examine the records. The trial court interrupted counsel's argument and stated that it first wanted to hear DPSC's witness "and see what she's going to put on."
Louisiana Code of Evidence article 1006 provides:
The contents of otherwise admissible voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.
DPSC called Tami Bartlett, the state risk adjustor who handled Mr. Hill's workers' compensation claim. Ms. Bartlett acknowledged that she kept track of the amount of both medical expenses and indemnity benefits paid to Mr. Hill. When asked for the total indemnity amount that had been paid to Mr. Hill as a result of the October 8, 2002 incident, counsel for Mr. Hill objected, stating that he had not received any documentary exhibits from counsel for DPSC and that he had never seen the summary. The trial court allowed Ms. Bartlett to answer, and she testified that the total amount of indemnity benefits paid to date to Mr. Hill, was $111,853.39. Thereafter, counsel for DPSC began to question Ms. Bartlett regarding the amount of medical benefits paid to Mr. Hill, and counsel for Mr. Hill entered an objection based on the pre-trial order. Counsel for Mr. Hill argued that in the pre-trial order, DPSC's proposed exhibits only listed workers' compensation records of payments to Mr. Hill and not any payments to third-party health care providers. Counsel for DPSC expressed her belief that notice was provided to Mr. Hill's attorney of exactly what Ms. Bartlett was going to testify to.
The trial court sustained the objection. Counsel for DPSC then requested to proffer the testimony, and the court stated that it would take the proffer after a verdict was reached. After the verdict was rendered, DPSC's counsel asked to make her proffer, at which time she offered a "Stars Financial Transaction Detail" listing payments made to Mr. Hill and to others containing a reference to Mr. Hill. DPSC also offered on its proffer various records of the Office of Risk Management detailing medical histories of numerous persons whose names were redacted from the records. Ms. Bartlett did not testify on the proffer regarding the financial transaction details and DPSC offered no evidence to establish the authenticity of these documents or the purpose for which the payments shown in the transaction report were made.
At a subsequent hearing on Mr. Hill's motion to finalize the judgment, the trial court stated:
The court is going to agree with the argument of plaintiff counsel. And the court is going to rule that [DPSC] is not entitled to a credit by write off for any future medical payments paid on behalf of Mr. Hill. And also, is not entitled to any previous bills that [were] paid because this court did not have any evidence to show what those bills were to award to [DPSC].
DPSC argues that Mr. Hill's objection to the introduction of the evidence was based on notice, but insists that it pleaded its entitlement to credit for medical payments in its answer to Mr. Hill's first supplemental and amending petition. Therein, DPSC asserted "its right to a credit for all workers' compensation benefits paid or to be paid to plaintiffs whether for medical expenses or indemnity for wages and/or any settlement of the workers' compensation matter against any judgment which may be rendered in favor of plaintiffs in this suit."
A trial judge has great discretion in conducting a trial. The judge is required to do so in an orderly, expeditious manner and to control the proceedings so that justice is done. La. C.C.P. art. 1631: Palace Properties, L.L.C. v. Sizeler Hammond Square Limited Partnership, 01-2812, pp. 7-8 (La. App. 1 Cir. 12/30/02), 839 So.2d 82, 91, writ denied, 03-0306 (La. 4/4/03), 840 So.2d 1219. The jurisprudence provides that an orderly disposition of each case (and of the entire docket) and the avoidance of surprise are inherent in the theory of pre-trial procedure and are sufficient reasons for allowing the trial judge to require adherence to the pre-trial order in the conduct of an action. Highlands Underwriters Insurance Company v. Foley, 96-1018 (La. App. 1 Cir. 3/27/97), 691 So.2d 1336, 1339. The pre-trial order controls the subsequent course of action, but it can be modified at trial to prevent substantial injustice. La. C.C.P. art. 1551. The matter of whether to modify the pre-trial order is solely within the discretion of the trial court, and absent an abuse of discretion, the decision of the trial court will be upheld. McDuffie v. Acands, Inc., 00-2779, p. 3 (La. App. 4 Cir. 2/14/01), 781 So.2d 628, 631.
Louisiana Code of Civil Procedure article 1551 provides, in relevant part:
A. In any civil action in a district court the court may in its discretion direct the attorneys for the parties to appear before it for conferences to consider any of the following;
(1) The simplification of the issues, including the elimination of frivolous claims or defenses.
(2) The necessity or desirability of amendments to the pleadings.
(3) What material facts and issues exist without substantial controversy, and what material facts and issues are actually and in good faith controverted.
(4) Proof, stipulations regarding the authenticity of documents, and advance rulings from the court on the admissibility of evidence.
(5) Limitations or restrictions on or regulation of the use of expert testimony under Louisiana Code of Evidence Article 702.
(6) The control and scheduling of discovery including any issues relating to disclosure or discovery of electronically stored information, and the form or forms in which it should be produced.
(7) Any issues relating to claims of privilege or protection of trial preparation material, and whether the court should include agreements between counsel relating to such issues in an order.
(8) The identification of witnesses, documents, and exhibits.
(9) The presentation of testimony or other evidence by electronic devices.
(10) Such other matters as may aid in the disposition of the action.
B. The court shall render an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel. Such order controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.
Having reviewed the record in light of the above, we find no abuse of the trial court's broad discretion in excluding the testimony of Ms. Bartlett regarding medical payments made on behalf of Mr. Hill. DPSC's portion of the pretrial order that listed exhibits for trial only referred to workers' compensation records of payments to Mr. Hill. There was no mention of payments to third-party health care providers and DPSC did not seek to modify the pre-trial order at any time prior to trial.
Moreover, even if we were to find that the excluded evidence should have been admitted, the trial court gave DPSC the opportunity to make a complete record of the excluded evidence and DPSC simply failed to offer proof demonstrating its entitlement to a credit for medical payments or write-offs on the proffer. DPSC's proffer included only transaction details of payments to Mr. Hill and apparently to medical providers, as well as records of treatment of numerous persons whose names were redacted. DPSC did not offer any evidence authenticating the records or establishing that the payments were for treatment for Mr. Hill's injuries as a result of the work-accident. Under these circumstances, there is insufficient competent evidence from which this court could award DPSC a credit, and we decline to remand the matter to allow DPSC another opportunity to prove its entitlement to such.
Causation
In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident that caused the injury. Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615, p. 3 (La. 2/20/95), 650 So.2d 757, 759. The plaintiff must prove causation by a preponderance of the evidence. The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident. Id.; McNeely v. Ford Motor Company, Inc., 98-2139, p. 12 (La. App. 1 Cir. 12/28/99), 763 So.2d 659, 667, writ denied, 00-0780 (La. 4/28/00), 760 So.2d 1182. Further, a tortfeasor is liable only for damages caused by his negligent act. He is not liable for damages caused by separate, independent or intervening causes. Haydel v. Hercules Transport, Inc., 94-1246, p. 23 (La. App. 1 Cir. 4/7/95), 654 So.2d 418, 432, writ denied, 95-1172 (La. 6/23/95), 656 So.2d 1019.
It is well-settled, however, that a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct. Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La. 1993). When a defendant's tortious conduct aggravates a pre-existing condition, the defendant must compensate the victim for the full extent of the aggravation. Guillory v. Lee, 09-0075, pp. 26-27 (La. 6/26/09), 16 So.3d 1104, 1124; Lasha, 625 So.2d at 1006. Before recovery can be granted for an aggravation of a pre-existing condition, a causative link between the accident and the victim's current status must be established.
Causation is a question of fact which may not be reversed on appeal in the absence of manifest error or unless they are clearly wrong. Green v. K-Mart Corporation, 03-2495, p. 3 (La. 5/25/04), 874 So.2d 838, 841-42. The issue to be resolved on appeal is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. The manifest error standard demands great deference to the trier of fact's findings. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Id. at 883-884.
In its second assignment of error, DPSC argues that the jury was manifestly erroneous in finding that the training exercise at issue caused Mr. Hill to require the initial back surgery and the subsequent back surgeries and treatment. DPSC contends that the evidence presented to the jury shows, at most, only a transient "aggravation" of an already symptomatic degenerative low back and pre-existing disc herniation at the L5-S1 level.
DPSC is not asserting a lack of causation with regard to Mr. Hill's cervical, wrist or elbow injuries.
The record shows that Mr. Hill had a long-standing history of low back pain. Mr. Hill testified that he was involved in an automobile accident in 1994. Thereafter, he sought medical treatment for low back pain, but an MRI disclosed negative results. When employed by DPSC in 1999, Mr. Hill disclosed his history of back pain. Mr. Hill continued to have complaints of low back pain, and, in December 1999, another MRI of his low back again indicated negative results. His back pain complaints continued intermittently, and Mr, Hill was prescribed anti-inflammatory and pain medications as necessary. Mr. Hill testified, however, that he was able to perform his normal job duties, and he kept up his physical exercise, which included running two to three miles at a time.
A month before the accident at issue herein, on September 9, 2002, Mr. Hill was seen by Dr. Myles K. Gaupp, a primary care physician, with complaints of back pain. At that time, Dr. Gaupp noted that Mr. Hill had maintained a chronic level of discomfort since his automobile accident, but that he "functions with it fairly well." A recent MRI "demonstrated a small posterior central disc protrusion at the L5-S1 level with no significant compromise of the spinal canal or foramina." Mr. Hill was referred to Dr. Stephen Gick, an orthopedist, who first saw Mr. Hill on September 13, 2002. Dr. Gick reported that Mr. Hill related that in recent months he had developed mechanical back pain, deep left buttock pain, radiating down to the middle of his foot. On physical examination, Dr. Gick rioted loss of back motion and marked atrophy of his glutei on the left compared to the right. Dr. Gick also noted that Mr. Hill had a recent MRI, but that it was not available to him. Therefore, Mr. Gick asked Mr. Hill to reschedule "to review his MRI for more specific treatment." Dr. Gick also recommended that x-rays be taken.
Dr. Gick next saw Mr. Hill on October 16, 2002, after Mr. Hill was able to obtain his MRI results and approximately one week after the work accident. Dr. Gick reported at that time:
[The MRI] shows diffuse herniation at 4/5 and degenerative disc with herniation of 5-S1, probably explains his left leg pain. In the interim, we obtained his flexion-extension lateral and he has marked instability at L4-5 with 2-3 mm translocation. While working and going through training and retraining, he had an injury to his upper thoracic, lower cervical area with a knee in his neck and lumbar spine and being handcuffed. Since then, he has had numbness in his left middle finger on the left and several fingers on the right. I hope this is transient and no attention is paid to this. Since his struggle with his two level disc problems for years, I recommend we do a discogram and see if they are the real etiology of his symptoms. This was scheduled in the future. This will be followed with a stabilization if this is the final diagnosis.Apparently, no physical examination was conducted on that date. Additionally, an x-ray was conducted on October 16, 2002, and the radiologist, in comparing the test to the one previously performed on September 16, 2002, stated that "there has been no detrimental change."
Mr. Hill next followed up with Dr. Gick on October 30, 2002, following the discograms. Dr. Gick noted that L4-5 was damaged. He further reported that "[i]t was difficult to tell if it was causing his primary back symptoms with minimal radicular symptoms." He also indicated that he was unable to successfully complete a discogram on L5-S1 because the disc space was so gnarled. Dr. Gick noted that after reviewing Mr. Hill's x-rays, the MRI, and his many years of treatment, he explained to Mr. Hill that his options were to decrease his activity level and live with it or to have a posterior fusion surgery. Dr. Gick recommended surgery. Dr. Gick noted at that time that Mr. Hill was ready to proceed with surgery, as he was quite fatigued over the years of intermittent discomfort. Dr. Gick diagnosed Mr. Hill as suffering from degenerative disc disease at the 4-5 level and 5-S1 with a ruptured disc at 5-S1 and significant facet arthritis. On November 21, 2002, Dr. Gick performed a bilateral posterior fusion with internal fixation and pedicle screws from L4-SI on Mr. Hill's lower back.
Although Mr. Hill's back condition appeared to initially improve following the back stabilization surgery, approximately five months thereafter, Mr. Hill began to report a gradual onset of a worsening of his back pain. Dr. Gick suspected that Mr. Hill's back was not healing because the bone graft fusion was not growing together. Dr. Gick performed a bone graft procedure on May 20, 2003, due to the nonunion of Mr. Hill's back fusion. Mr. Hill continued to report back pain, increased muscle spasms in his back, tingling and numbness in his lower extremities; x-rays revealed there was no cortical bone formation around the graft site, and Dr. Gick opined that Mr. Hill was still not healing at the fusion site. After the bone graft surgery failed, Dr. Gick recommended surgery on the other side of Mr. Hill's spine. On January 6, 2004, Dr. Gick performed Mr. Hill's third major back surgery, an anterior lumbar interbody fusion using Medtronic cages.
By June of 2004, Mr. Hill's lower back still had not healed and fused. Dr. Gick referred Mr. Hill to Dr. Jiha, a pain management specialist. Dr. Jiha first saw Mr. Hill in December 2004 and treated Mr. Hill for back and neck pain for the next five and a half years, through May 2010. Throughout the course of his pain management treatment with Dr. Jiha, Mr. Hill complained of constant back and neck pain. Dr. Jiha performed numerous epidural steroid injections and trigger point injections of anesthetic medications into Mr. Hill's lumbar spine and cervical spine. In March 2005, Dr. Jiha performed a trial procedure for a lumbar spinal cord stimulator, inserting a wire into Mr. Hill's spine. When the trial stimulator provided some pain relief, Dr. Jiha referred Mr. Hill to a neurosurgeon for a permanent spinal cord stimulator implant. Although the implant relieved some of his pain symptoms, Mr. Hill returned to Dr. Jiha later that year complaining of back pain.
Mr. Hill continued treatment with Dr. Gick during this time. In February 2006, Mr. Hill complained to Dr. Gick of having localized pain in the area where Dr. Gick had installed rods into his lumbar spine. Soon thereafter, in April 2006, Dr. Gick performed Mr. Hill's fourth back surgery to remove the hardware in Mr. Hill's spine. Mr. Hill continued to complain of back pain on his subsequent visits to Dr. Gick. Dr. Gick noted that x-rays taken in March 2007 showed no further healing of Mr. Hill's posterior fusion, although the anterior fusion appeared to be solid.
Dr. Gick testified that Mr. Hill's posterior fusion never healed and that Mr. Hill suffers from failed back syndrome based on the unsuccessful attempts to fuse the unstable L4-5 disc and the degenerative disc at the 5-S1 level. Dr. Gick last saw Mr. Hill on December 9, 2009.
The record reflects that during his treatment of Mr. Hill's lower back pain, Dr. Jiha referred Mr. Hill to physical therapy, changed his pain medications, and increased the dosages of his pain medications on numerous occasions. Additionally, after the surgery to remove the hardware in Mr. Hill's spine failed to provide Mr. Hill with pain relief, Dr. Jiha replaced Mr. Hill's spinal cord stimulator implant with a peripheral nerve stimulator, which encompassed two surgical procedures in December 2008 and July 2009.
Based on our thorough review of the record, we find no manifest error in the jury's determination that the work accident on October 8, 2002, aggravated Mr. Hill's lower back condition, as provided on the jury verdict form. Dr. Gick, who treated Mr. Hill for over seven years, testified that Mr. Hill's lower back condition was aggravated by the incident. Dr. Jiha and Dr. Patel also testified that work incident aggravated Mr. Hill's lower back condition. The jury considered the abundance of testimony and documentary evidence presented on the issue of causation. Given that evidence, the jury could have reasonably found that Mr. Hill suffered an aggravation of a pre-existing injury.
As to Mr. Hill's lower back, the jury interrogatory was limited to an "aggravation."
Furthermore, the record demonstrates that the evidence on the extent of the aggravation caused by the work accident was conflicting. The defendant's expert, Dr. Morgan, an orthopedic surgeon, was hired to render a causation opinion. Dr. Morgan performed a single examination of Mr. Hill on November 25, 2003. In formulating his causation opinion, Dr. Morgan examined Dr. Gick's records and depositions, Dr. Jiha's deposition, and the diagnostic tests performed on Mr. Hill before and after the work accident. Dr. Morgan opined that Mr. Hill sustained a temporary injury to his lumbar spine that was superimposed on the pre-existing lumbar condition, but did not believe that the work accident caused Mr. Hill to have sufficient aggravation to his back condition which would require Mr. Hill to undergo surgery. Dr. Morgan also opined that Mr. Hill reached maximum medical improvement before he underwent lumbar surgery. During his deposition, when asked how long the aggravation to Mr. Hill's back condition caused by the work accident would have taken to resolve, Dr. Morgan was unable to give an answer, other than he did not think it would have been "too long."
Dr. Morgan's belief that Mr. Hill sustained only a temporary injury to his back as a result of the accident was based on the fact that on Mr. Hill's October 16, 2002, visit to Dr. Gick, Mr. Hill mentioned the work incident, but a physical examination was not performed on Mr. Hill by Dr. Gick at that time. Dr. Morgan explained that the absence of a physical examination indicated that Dr. Gick did not think that the job accident played much of a role in anything that Mr. Hill was complaining about and opined that because Mr. Hill was not symptomatic enough to have a physical examination performed on October 16, 2002, any problems he sustained as a result of the work accident "would probably be very - fairly short lived." Dr. Morgan was asked whether it would be unusual for a person like Mr. Hill to have surgery six weeks after sustaining an injury in the work accident. Dr. Morgan stated that it depended on how much trouble a person is having as to when they have surgery, and that it is up to the surgeon to determine the appropriate time for surgery.
Dr. Jiha, who treated Mr. Hill for over five years, opined that the work incident necessitated the medical treatment Mr. Hill received thereafter for Mr. Hill's lumbar condition. During his deposition, when asked whether the treatment he rendered to Mr. Hill for his neck and lower back, a total of 19 different procedures, were related to the injuries Mr, Hill sustained in the October 8, 2002 accident, Dr. Jiha answered, "Yes." On cross examination, Dr. Jiha was asked whether the work incident aggravated Mr. Hill's back condition to the extent of his treatment from the date of the incident, Dr. Jiha stated that it would be difficult to say that. However, when asked whether he was "backing off of his opinion that all of the treatment he rendered to Mr. Hill for the aggravation of Mr. Hill's back condition was related to the work incident, Dr. Jiha explained that he could not say that the work incident caused the pain, but agreed that the work incident could have aggravated Mr. Hill's pain. He added that there was no way he could tell how much of an aggravation the work incident would have caused. On redirect examination, Dr. Jiha made it clear that he was aware of Mr. Hill's pre-existing back condition and acknowledged that it was more probable than not that the treatment he rendered to Mr. Hill for his lower back condition was partially related to the aggravation of Mr. Hill's lower back condition in the October 8, 2002 accident.
Moreover, the record reflects that before the accident, despite 8 years of lower back pain, Mr. Hill was "highly functional" and had been steadily employed. Shortly before the accident, Mr. Hill was performing all of the duties of a patrol officer and was even running three miles a day. Although Mr. Hill saw Dr. Gick three weeks before the accident complaining of back pain, Mr. Hill continued to work until he sustained the work injury. After the work accident, Mr. Hill was unable to return to work. Dr. Gick indicated in his testimony that the work accident was one thing that led to Mr. Hill's decision to have the first surgery. Dr. Gick was asked whether he could say with any reasonable medical probability that the aggravation of Mr. Hill's lower back on October 8, 2002 was directly related to the surgery Dr. Gick performed on November 2002. Dr, Gick answered, "It seems to have been aggravate—aggravated it, yes." He was then asked, "therefore needing the surgery?" to which Dr. Gick responded, "Yes."
Additionally, Mr. Hill testified that he decided to have the surgery because his back pain increased after the work accident. He stated that the pain was so bad following the work incident that he called Dr. Gick's office to move up his scheduled appointment and that at the time he saw Dr. Gick, he was "hurting bad enough to make [him] want to have the surgery". Mr. Hill also testified that his back pain was different before and after the accident. He testified that before the incident, he did have pain on a daily basis while working, but that his pain was intermittent and there were days when he had no back pain. However, he stated that after the incident, his pain got "a lot worse" and it was "7 days a week."
Dr. Gick testified that all subsequent surgeries on Mr. Hill's low back were the result of the failed first surgery. Dr. Morgan also expressed his belief that all of Mr. Hill's subsequent treatment to his lower back arose from the November 21, 2002 failed back surgery. Although the medical testimony did indicate that Mr. Hill was a candidate for lumbar surgery prior to the aggravation of his back condition in the October 8, 2002 work accident, that factor, standing alone, does not render the jury's causation determination unreasonable. The record supports the conclusion that the training exercise incident, which clearly aggravated Mr. Hill's lower back condition, caused Mr. Hill to undergo the first back surgery six weeks thereafter. Because the subsequent surgeries and pain management treatment Mr. Hill received for his lower back condition arose out of and was necessitated by that failed surgery, the jury could also have reasonably concluded that all of the medical treatment Mr. Hill received for his lower back condition following the October 8, 2002 work incident resulted from the aggravation to Mr. Hill's pre-existing back condition in that work incident. Therefore, we find no manifest error in the jury's causation determination and we may not disturb that ruling.
We note that DPSC does not assign error with respect to the jury's damage award.
CONCLUSION
For the foregoing reasons, the judgment appealed from is affirmed. All costs of this appeal, in the amount of $6,066.50, are assessed to appellant, The State of Louisiana, Department of Public Safety and Corrections.
AFFIRMED.
2011 CA 1639
DOUGLAS MONTGOMERY HILL & DONNA B. HILL
VERSUS
STATE OF LOUISIANA, THROUGH THE DEPARTMENT OF PUBLIC SAFETY
& CORRECTIONS AND/OR LOUISIANA STATE POLICE & JOHN DOE,
INDIVIDUALLY & AS AN EMPLOYEE OF LOUISIANA STATE POLICE
McCLENDON, J., dissents and assigns reasons.
As acknowledged by the majority, in a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident that caused the injury. Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615 (La. 2/20/95), 650 So.2d 757, 759. While I agree with the majority that the jury was not manifestly erroneous or clearly wrong in finding that the October 8, 2002 incident aggravated Mr. Hill's lower back, I must disagree with its subsequent conclusion that the training exercise incident caused Mr. Hill to undergo his first back surgery six weeks later. Reviewing the evidence in its entirety, it was not reasonable to find that Mr. Hill would have had his initial back surgery only after the work-related incident. While the training exercise incident of October 8, 2002, clearly aggravated Mr. Hill's low back condition, it did not cause or accelerate the need for the surgery. The medical evidence establishes that Mr. Hill needed the low back surgery prior to the training exercise.
At trial, Dr. Gick, who was Mr. Hill's treating orthopedist and who performed Mr. Hill's surgeries, confirmed that Mr. Hill had a herniated disc as of September 13, 2002, prior to the incident at issue herein. He was also asked the following:
Q. Okay. Well, I just want to make sure you understand. No - I'm not tying to argue that this incident didn't aggravate his back condition to some degree, but pretty much it sounds to me like what you had told me previously is that the real cause and the need for the surgery was due to his long-standing back pain for which he had visited you only three weeks before this incident; would that be correct?
A. I think so. I think that's what I said too, isn't it?
Q. Right, I think it is. So any aggravation by this incident probably was a transitory aggravation just like the incident when he fell walking his dog later on or when he was carrying his father's coffin -
. . . .
A. That was my impression at the time. That's why my notes don't reflect much about it....
Q. Okay. Doctor, no one here - I - I'm not criticizing your diagnosis at all. I'm just trying to find out and it seems to me what you're saying is the reason he needed the low back surgery was because he came to you before this incident complaining of low back pain for eight years, you looked at him and saw he had atrophy in his glutei, MRI was done that showed a herniation before this incident, correct?
A. Correct.
Q. Weren't those all indications for the surgery you, in fact, did after the 10/8/02 incident?
A. Correct.
. . . .
Q. So surgery was indicated before the incident of 10/8/02, correct?
A. Correct, at least preoperative I thought it was.
Q. Okay. So even absent the accident of 10/8/02, you would have recommended surgery to Mr. [Hill] for his longstanding low back problem?
A. I probably would have.
Further, Dr. Gick indicated that surgery was necessary to stabilize Mr. Hill's lower back. He testified that the pre-existing instability in Mr. Hill's back was a good indication of the need for surgery. According to Dr. Gick, the x-ray of October 16, 2002, confirmed that Mr. Hill's lower back needed stabilization, and said x-ray showed no detrimental change from the one taken a month earlier and prior to the October 8, 2002 incident. Dr. Gick testified that his decision to recommend surgery was based on "the whole gamut of things," including the "[r]uptured disc, degenerative disc and a[n] instability and chronic pain." Dr. Gick testified that on September 13, 2002, he tried to put all the factors together, but at that time he had not seen the previously performed MRI.
Additionally, Dr. Jiha testified that his exam of Mr. Hill three weeks before the subject incident showed the marked atrophy of Mr. Hill's left glutei, which indicated chronic pinching of nerves in Mr. Hill's spine. When asked about relating Mr. Hill's back pain to the October 8, 2002 incident, Dr. Jiha stated:
I can say that his incident on October 8, 2002 may have aggravated his pain, but I cannot say it has caused it because certainly three weeks before that he was having this.Dr. Jiha was then asked:
Q. Okay. But did it aggravate it to the extent that all of your treatment to his low back from the date of the incident till now is related to the incident of 10/8/02 now that you have had a chance to review [the record]?
A. Yeah. It will be difficult to say that, to be honest with you.
Q. Okay.
A. I mean I can tell you that, yes, the incident can aggravate his pain, but I cannot say for a medical certainty that it can cause his pain because that - he was very close to that incident, and it's -the symptoms seem to be overlapping.
Considering the entire record, I must disagree with the majority and conclude that the jury was clearly wrong in finding that "the 10-8-02 incident caused [Mr. Hill's] low back to require the surgeries and treatment undergone after the accident." In light of all of Dr. Gick's testimony, and the remaining medical testimony, I find that the majority erred in relying upon a single isolated response of Dr. Gick to establish medical causation.
While the majority refers to Mr. Hill's testimony in support of its finding that the incident at issue caused the need for surgery, Mr. Hill's testimony was consistent with an aggravation of a pre-existing back problem. Further, except for cases where the causal connection between a defendant's fault and the injury alleged is obvious, expert medical testimony is necessary to establish causation. See Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La. 10/17/94), 643 So.2d 1228, 1233-34. Normally, in cases involving patients with complicated medical histories and complex medical conditions, causation is simply beyond the province of lay persons to assess. See Pfiffner, 643 So.2d at 1234.
--------
Additionally, I must disagree with the majority's conclusion that the trial court did not abuse its discretion in excluding the testimony of Tami Bartlett regarding medical payments made on behalf of Mr. Hill.
The matter of whether to modify the pre-trial order is solely within the discretion of the trial court, and absent an abuse of discretion, the decision of the trial court will be upheld. McDuffie v. ACandS, Inc., 2000-2779 (La.App. 4 Cir. 2/14/01), 781 So.2d 628, 631. In deciding whether to modify a pretrial order, a trial court must be ever mindful of the fact that the objective of our legal system is to render justice between the litigants upon the merits of the controversy rather than to defeat justice upon the basis of technicalities. Id.
Having reviewed the record in light of the above, I find the trial court abused its discretion in excluding the testimony of Ms. Bartlett. It is true that in its portion of the pretrial order regarding its claims, DPSC stated that it was "entitled to credit for all workers compensation benefits paid to Douglas Hill," and did not mention payments to third party health care providers. Although a trial court has great discretion in deciding whether to receive or refuse testimony objected to on the grounds of failure to abide by the pre-trial order, any doubt must be resolved in favor of receiving the information. See Brown v. Imperial Trading Co., 01-1889 (La.App. 4 Cir. 4/3/02), 815 So.2d 1084, 1090, writ denied, 02-1242 (La. 8/30/02), 823 So.2d 951; Curry v. Johnson, 590 So.2d 1213, 1216, (La.App. 1 Cir. 1991). I do not believe that such a narrow and technical construction of the language of the pretrial order was intended. Additionally, Ms. Bartlett, as the workers' compensation adjuster, was listed as a witness for Mr. Hill regarding Mr. Hill's medical care, and DPSC included "[a]ny witness named by any other party" in its list of witnesses. Article 1551 does not require a listing of the subject matter area of the testimony. See Curry, 590 So.2d at 1216. Further, in answer to Mr. Hill's first supplemental and amending petition, DPSC asserted its right to a credit for all workers' compensation benefits paid or to be paid to Mr. Hill "whether for medical expenses or indemnity for wages and/or any settlement of the workers' compensation matter against any judgment which may be rendered in favor of [Mr. Hill] in this suit." Thus, Mr. Hill was aware of DPSC's claim for a credit for medical payments and cannot say he was surprised by this testimony.
Accordingly, I must respectfully dissent. DOUGLAS MONTGOMERY HILL
& DONNA B.HILL
VERSUS
STATE OF LOUISIANA, THROUGH
DEPARTMENT OF PUBLIC SAFETY &
CORRECTIONS, ET AL
2011 CA 1639
CRAIN, J., concurs.
I write separately to emphasize that, in my opinion, the result is required only because we are procedurally precluded from reviewing the trial court's judgment finding that plaintiff's claims fall under the intentional act exception to the exclusivity provisions of the workers' compensation act. While I believe that plaintiff's claims do not fall under that exception, the trial court's January 16, 2009 judgment which found to the contrary became final when DPSC's appeal of that judgment was dismissed. Consequently, being compelled to review the case as one falling outside the exclusivity provisions of the workers' compensation act, I agree with the majority's analysis and conclusions.