Opinion
CIVIL ACTION NO. 02-3472, SECTION "I" (3)
February 11, 2004
MEMORANDUM OPINION
On January 20, 2004, a bench trial was conducted by the undersigned United States Magistrate Judge on the personal injury claim of the plaintiff, Clarence Hixon ("Hixon"). Originally, plaintiff filed this removed action against Dr. Jimmy Lockhart, his insurer Nationwide Mutual Insurance Company ("Nationwide"), and his own insurer, State Farm Mutual Automobile Insurance Company ("State Farm") in the Civil District Court for the Parish of Orleans, Louisiana. Removal by the defendants was based on complete diversity of citizenship, 28 U.S.C. § 1332.
Prior to trial, plaintiff dismissed his claims against State Farm pursuant to a compromise reached between the parties, reserving his right to proceed against Dr. Lockhart and Nationwide. State Farm filed a Motion and Order dismissing its cross — claim with prejudice pursuant to the aforesaid settlement agreement. State Farm paid the plaintiff $15,000.00 under the UM policy provisions, waived its subrogation rights with regard to medical payments made on behalf of the plaintiff and agreed to "leave open the remaining balance of its med — pay coverage limits of $25,000.00 under Hixon's policy.
See plaintiff's Motion and Order of Dismissal dated January 14, 2004 [Rec. Doc. No. 64].
State Farm's Motion and Order of Dismissal dated January 14, 2004 (dismissing its cross — claims) [Rec. Doc. No. 65].
See Pretrial Order at Section 7, paragraph 9 [Rec. Doc. No. 57].
Plaintiff brought this action under Louisiana's general negligence statute, La. Civ. Code Art. 2315, seeking recovery for damages allegedly resulting from an automobile accident. On November 7, 2001, Hixon's vehicle was stopped directly behind Dr. Lockhart's in an exit lane of the LSU medical center parking garage on South Roman St. in New Orleans, Louisiana; both drivers were waiting to pay parking fees. Not seeing Hixon's vehicle, Dr. Lockhart backed his Isuzu Rodeo into the plaintiff's Pontiac Sunfire, while attempting to maneuver his vehicle into the adjacent open exit lane.
Fault has been stipulated and the validity of Nationwide's policy is not contested. As such, the sole remaining issues tried by the Court relate to causation and quantum of damages. The allegations of the plaintiff's complaint contemplates recovery damages in excess of the $50,000.00 limits of Nationwide's liability policy. However, by way of stipulation, the remaining defendants agreed to waive the jury in return for the plaintiff's agreement not to execute any judgment in excess of the $50,000.00 policy limits against Nationwide's insured, Dr. Lockhart.
See Minute Entry dated January 9, 2004 [Rec. Doc. No. 60].
Having considered the testimony at trial, depositions and exhibits which were the subject of stipulation, the applicable law and the parties' post — trial memoranda, the Court now makes the following findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). To the extent that any of the following findings of fact constitute conclusions of law, and vice versa, they are so adopted. As previously mentioned, this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332; thus, the law of Louisiana applies to the plaintiff's claims.
THE ACCIDENT
On November 7, 2001, Clarence Hixon was stopped in his 1996 Pontiac Sunfire waiting in line to exit the South Roman Street parking garage of the Louisiana State University Health Science Center (LSUHSC) in New Orleans, Louisiana. Hixon had had appointment an earlier that afternoon with Dr. Harry Gould, his treating physician at LSUHSC's pain control clinic. Dr. Jimmy Lockhart, a resident of LSU's Physical Medicine and Rehabilitation Department, occupied a 1997 Isuzu Rodeo in the exit lane directly in front of the plaintiff's vehicle. Having noticed that the adjacent lane was open, Dr. Lockhart put his vehicle in reverse to negotiate a median between the two lanes and backed up a short distance into the plaintiff's vehicle.
Generally, the duty of a backing motorist is one of great care and attention. Louisiana Revised Statute § 37:281(A) provides that "[t]he driver of a backing vehicle shall not back the same unless such movement is made with reasonable safety and without interference with other traffic." It is undisputed that the aforesaid general rule is applicable in this case and that Dr. Lockhart breached the duty to make certain before backing that the maneuver could be safely executed. As previously stated, fault has been stipulated. As a result of the accident, Dr. Lockhart's Isuzu Rodeo sustained only minor damage i.e., scratches on the underside of the right corner (driver's side) rear bumper. The plaintiff's Pontiac Sunfire sustained scratches and a sizeable inward dent on the passenger side of front part of the hood and damage to the front bumper as well.
See Turner v. New Orleans Public Service Inc., 476 So.2d 800, 802 (La. 1985); Homage v. White, 841 So.2d 1026, 1030 (La.App. 3rd Cir. 2003); McDonald v. Hollingsworth, 823 So.2d 408, 410 (La.App. 5th Cir. 2002); Ward v. Schwegmann Giant Super Markets, Inc., 538 So.2d 1051 (La.App. 4th Cir. 1989) ( citing Sadly v. Gautreaux, 514 So.2d 222 (La.App. 5th Cir. 1987))
La.Rev.Stat. § 32:281(A).
The time of the accident was about 3:00 p.m.; thereafter, both Hixon and Dr. Lockhart pulled their respective vehicles over while the ticket booth attendant, Robert Griffin, contacted the University Police. Both Hixon and Dr. Lockhart gave contemporaneous written statements describing the facts of the accident and neither one of them mentioned either a violent impact or any bodily injury or pain; however, Hixon specifically described the damage to his vehicle i.e., "damage to the hood and front fascia."
Plaintiff's Statement dated November 7, 2001 [plaintiff's Exhibit "1" in globo Defendants' Exhibits. "1" and "2" in globo].
Plaintiff testified that he was not aware of any problem with his neck on the day of the accident. According to Hixon, his neck began to "stiffen — up" the next day and he immediately contacted his chiropractor, Ree Ann Cupp.
As to the impact, Dr. Lockhart characterized it as a bump. More specifically, he testified that he heard no loud noises, no cracking metal, no squealing tires or anything of that nature. His recollection was that after he put his car in reverse, he backed a few feet and then felt a bump. Dr. Lockhart admitted that the impact was sufficient to cause bumper damage both vehicles and to dent the hood of Hixon's Pontiac Sunfire. Dr. Lockhart testified that he exited his vehicle and talked to Hixon, who did not appear to be hurt or injured in any manner. After leaving the LSU parking garage, Dr. Lockhart did correspond with Hixon; however, their discussion was limited to the appraisal of the property damage to Hixon's vehicle.
CAUSATION
The burden of proof in a personal injury case was set forth by the Louisiana Supreme Court in Maranto v. Goodyear Tire Rubber Co., 650 So.2d 757 (La. 1995), as follows:
In a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injury sustained and that accident which caused the injury. Plaintiff must prove causation by a preponderance of the evidence. The test for determining the causal relationship between the accident and the subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were cause by the accident.Id. at 759 (citations omitted).
The plaintiff stipulated that he has been "disabled" since the occurrence of an accident on June 2, 1986, for which he received worker's compensation up until 1994, when he was awarded Social Security benefits. Therefore, he seeks no recovery for loss of earnings. Additionally, it is undisputed that, at or about the time that the plaintiff's worker's compensation payments ended, Hixon was awarded Social Security disability benefits. The bases of the aforesaid determination of "total disability" of the then 51 year old claimant were "numerous medical problems."
See Pretrial Order at Section 7, stipulation number 8.
See ALJ Edmond Salassi's Decision dated August 28, 1994, Administrative Record ("Adm. Rec.") at 42-44 [Defendants' Exhibit "8" in globo].
Adm.Rec.at 43.
As of the date of the accident, for purposes of uniform analgesic coverage of Hixon's chronic pain symptoms, Dr. Gould recommended a trial of Roxicodone, which, if tolerated, would be followed by a trial of Oxycontin at a comparable dose. Dr. Gould noted Hixon's complaint that any increase in his activity tends to exacerbate the his pain symptoms.
See Clinic Visit Report of Dr. Harry J. Gould dated November 7, 2001 [Defendant's Exhibit "7"].
See Clinic Visit Report of Dr. Harry J. Gould dated November 7, 2001 [Defendant's Exhibit "7"].
Hixon's medical history, as recounted in the administrative record of the Social Security proceedings and other medical records in evidence, is extensive. Hixon testified that he injured his low back while demonstrating a "flame spray" welding device. He explained that, for over an hour, he was bent at waist level performing precision welding which required that he carry twenty pounds of weight in hands. Plaintiff sustained the work — related injury to his low back while employed as an applications specialist for Eutectic Corporation in 1986. The condition resulted in lumbar surgery on March 21, 1990.
See also Adm. Rec. at 110, 146.
A neurosurgeon in the Los Angeles area, Dr. Paul Dwan, performed a lumbar laminectomy and diskectomy at L4-5 to address his chronic back condition, i.e., central herniated disc at L4-5 with some compression of the thecal sac and generalized bulge at L5-S1 and osteophyte production without nerve root compression. After surgery, Hixon's urinary incontinence improved, but he continued to experience low back pain. An MRI study performed on March 19, 1992 revealed post — surgical changes, degenerative disc change at L4-L5, a 1 millimeter disc bulge at L5-S1, disc space narrowing at both levels and "failed back syndrome" from which Hixon suffered "persistent pain."
Adm. Rec. at 60, 105
Adm. Rec. 70.
Adm. Rec. at 55, 85, 103
Adm.Rec.at 43, 53, 56, 84.
Hixon's pre-existing medical conditions are not limited to his low — back condition. Medical records in evidence document a history of "myofacial pain syndrome," "mild scoliosis," "chronic" neck pain and tenderness in all parameters of the neck, sometimes accompanied by reported "mild left hand pain," intermittent "finger numbness," "shoulder blade pain" and "numbness . . . involving the entire [left] arm," "whiplash injuries" pursuant to vehicular collisions in 1981, 1986, 1989 and 1992, restricted range of motion to both right and left lateral rotation "secondary to 'chronic neck pain,'" Depressive Disorder NOS, Somatoform Pain Disorder, Chronic Pain Syndrome, and Crohn's disease.
Adm. Rec. at 53, 56, 64.
Adm. Rec. at 124.
Adm.Rec.at 61, 63, 64.
Adm. Rec. 102.
Adm. Rec. 247, 248. See also plaintiff's Application for Reconsideration filed with the Social Security Administration on February 24, 1992 (noting "increased numbness in left hand, arm and shoulder" due to his being "on the receiving end of a rear — end automobile accident on September 28, 1992) [Adm. Rec. 254-255].
Adm. Rec. at 62, 70, 71, 74, 113, 114, 115, 125, 128, 246.
Adm. Rec. at 107.
Adm. Rec. at 154, 157.
Adm.Rec. at 154, 216, 222.
Adm. Rec. at 216.
Adm. Rec. at 165.
An MRI scan performed on January 16, 1987 was reported by Dr. Robert Stein, a radiologist in California with Oakland Magnetic Imaging Services, as revealing disc herniations at C5-6 and C6-7. Dr. Andrew Robertson concluded that the plaintiff's symptoms had some radicular character. Dr. Robert Mitgang, a neurosurgeon in Oakland, California, concluded that the MRI scan revealed a small disc protrusion at C6-7 which vaguely impinged on the thecal sac, but not on the cord and a small protrusion in the space above. He concluded that the MRI scan findings were responsible for the plaintiff's chronic, mild C5 radiculopathy.
Adm.Rec. at 64, 126
Adm. Rec. at 247.
Id. See also Deposition of Dr. Ree Ann Cup (hereinafter Cupp deposition) taken on January 20, 2004, at pp. 22-23.
Dr. Ree Ann Cupp, a chiropractor in New Orleans, Louisiana, began treating the plaintiff after he was involved in a car accident in September of 1986. Treatment notes dated December of 1987 indicate that Hixon's chief complaints were neck and shoulder pain, as well as numbness of the hand and arms. Pursuant to neurological and orthopedic examinations which correlated with the X-ray findings, Dr. Cupp's diagnoses in 1987 included "acute traumatic cervical myofascitis associated with parasthesia," "radiculitis, cervical spondylosis with myleopathy" and "cervical intervertebral disc syndrome." Dr. Cupp's corresponding prognosis was that the symptoms were recurrent in nature and that Hixon's cervical spine conditions were of a permanent nature. Dr. Cupp opined that Hixon could expect intermittent exacerbations of pain and stiffness in the cervical spine, accompanied by ligamentous instability, myofacitis and localized evidence of nerve root damage of a permanent nature.
Cupp Deposition at p. 59-60, 62.
Id. at p. 60-61.
Cupp Deposition at pp. 62, 69
Id at p. 62.
The administrative record compiled in connection with the plaintiff's Social Security application and award of disability benefits summarized Dr. Cupp's treatment records during the period from April 28, 1989 through June 26, 1989. At that time, Dr. Cupp diagnosed cervical sprain due to an automobile accident on April 28, 1989. Hixon was treated with chiropractic adjustments for whiplash, hyperflexion and extension, vertebral artery compression and compression of the C5-6 disc space.
Adm. Rec. at 367.
Id.
Dr. Cupp testified via deposition that her treatment of the plaintiff from 1987 until immediately prior to the November 7, 2001 was consistent and included both treatment for his lower back and his neck. Her treatment notes dated November 8, 2001 (the day following the accident) indicated a regression in the plaintiff's condition, which was attributed to a new injury. Up until November 8, 2001, Dr. Cupp billed all of the plaintiff's chiropractic care to Liberty Mutual, the plaintiff's compensation insurer. Dr. Cupp testified that Liberty Mutual was not billed for any chiropractic care between the dates of November 8, 2001 and May 22, 2002, because chiropractic treatment during that period of time was primarily due to Hixon's complaints of acute neck pain.
Cupp Deposition at pp. 25, 52.
Cupp Deposition at pp. 27-28.
Id. at p. 64.
Dr. Cupp testified at length that while objective signs, including increased range of motion and the absence of arm and radicular symptoms, indicated that Hixon's condition was improving, plaintiff's subjective perception of his progress was that it was either not significant or that he experienced no improvement at all. The Court notes that Hixon had been diagnosed in 1992 with "somatoform pain disorder." This DSM III psychiatric diagnosis is a condition characterized by physical pain which either has no organic basis or is in excess of the organic cause which would explain the presence of pain. Dr. Novae opined that the causation of Hixon's "somatoform pain disorder" is "industrial in nature" and "secondary to an industrial accident in May of 1986." Most notably, Dr. Novae's opinion was that the 1986, 1989, and 1992 traffic accidents "should not be considered causative factors in triggering [Hixon's] somatoform pain disorder.
Id. at pp. 40-48.
See Report of Dr. Andrei Novae at p. 29 of 33 [Defense Exh. "8"/ Adm. Rec. 222]
Id.
Id at 223.
Id
The total cost of treatment for "whiplash injury" by Dr. Cupp during the period of November 8, 2001 through May 22, 2002 was Six Thousand, Eight Hundred Seventy-Five ($6,875.00) dollars. Subsequent to May 22, 2002, there was a gap in treatment with Dr. Cupp for six month period; Dr. Cupp did not begin treating the plaintiff again until November, 2002, but that treatment was for his "lower back pain." When Hixon presented himself to Dr. Cupp for treatment on November 27, 2002, there was no mention of pains or problems with his neck and his visit was billed to Hixon's worker's compensation carrier.
See Cupp Deposition at pp. 17, 19, 20.
Id at pp. 48-49.
Dr. Gary Alegre, plaintiff's treating orthopedist referred him to Clearview Imaging for a cervical MRI which was performed and then interpreted by Dr. Denny Taylor, a board certified consulting radiologist. Dr. Taylor's deposition was submitted in lieu of live testimony. His overall impression of the sixty — year old plaintiff's test results was that Hixon had a fairly uniform degree of spondylitic change due to the aging process at levels where such changes would be expected. Dr. Taylor explained that "spondylitic (sic) change is a degenerative change that occurs with aging in which generally there's narrowing of the intervetebral disc space," "bony lipping," and "bony ridging." He further confirmed that the presence of osteophytes are "part of the ongoing spondylitic (sic) change in the aging process."
See Deposition of Dr. Denny Taylor (hereafter Taylor Deposition), at p. 49.
Id at pp. 12.
Taylor Deposition at pp. 28.
More particularly, Dr. Taylor described the condition of Hixon's cervical spine as follows, to wit: (1) minor spondylitic change of "a millimeter or so" at C2-3; (2) "a couple of millimeter," "one to two" of disc protrusion at C4-5 and C5-6, respectively. (3) both anterior and posterior osteophytes, anterior and posterior spondylitic change, narrowing of the disc space, and prominent posterior bony ridging at C5-6, all of which is "consistent with ongoing, gradual degenerative changes;" and (4) "rather prominent anterior and posterior spondylitic (sic) changes . . . with anterior osteophytes and prominent bony ridging" and a couple of millimeters of herniation at the C6-7 level.
Taylor Deposition, at pp. 11-12.
Id. at p. 31-32.
Dr. Taylor noted that "almost invariably there is some degree of disc bulging or herniation" that accompanies the degree of spondylitic changes observed with respect to Hixon's cervical spine. Dr. Taylor concluded that Hixon's cervical spine "looks like a uniform case of degenerative neck disease," ( i.e., the C3-4, C5-6 and C6-7 levels being most affected by the degenerative changes). Dr. Taylor agreed with Dr. Henry Eiserloh's evaluation of the MRI scan dated August 28, 2002, finding no apparent acute disc herniation.
Id. at p. 32, 44.
Id. at p. 49; see also Dr. Taylor's Report dated August 28, 2002 (noting that "the pathology appears to be more spondylitic (sic) change than disc herniation") [plaintiff's Exh. "5" in globo].
Taylor Deposition at p. 53.
Dr. Gary Alegre, a board eligible orthopedic surgeon, testified via deposition that he began treating plaintiff on August 27, 2002 and that Hixon was one of his first patients. Hixon presented Dr. Alegre with a history of neck pain commencing three days post accident and recounted no history whatsoever concerning any of his prior neck injuries. Dr. Alegre's initial impression of "cervical spondyloradiculapathy" was based upon spur formation observed on Dr. Cupp's X-rays and Hixon's complaints of "left arm pain and some weakness or numbness." In connection with the plaintiff's second visit, Dr. Alegre had the benefit of the reviewing the August 28, 2002 cervical MRI and Dr. Taylor's interpretation of the test results. Dr. Alegre described the cervical condition as showing "fairly advanced cervical spondylosis with foraminal central stenosis from an osteophyte disc complex primarily at C5-6 and C6-7. Dr. Alegre distinguished this case from one involving spondylosis and an acute herniation, finding Hixon's condition more in the nature of "a spondylophyte (sic) in a disc complex." Dr. Alegre observed that "it's difficult to tell what's spur and what's disc." He candidly admitted that he could not say if the change was acute as opposed to chronic, insofar as the disc is concerned, and that, more likely than not, it is "a bony spur rather than an acute disc herniation." Dr. Alegre agreed with Dr. Taylor that all of conditions pre-existed the accident of November 7, 2001.
Deposition of Dr. Gary Alegre (hereinafter "Alegre Deposition") at pp. 10-14; see also Initial Evaluation dated August 27, 2002, at p. 2 [plaintiff's Exh. "4" in globo].
Alegre Deposition at pp. 16, 18-19, 22; see also Progress Note dated September 10, 2002 [plaintiff's Exh. "4" in globo].
Alegre Deposition at pp. 35-36.
Id at p. 39.
Id at p. 41 (italicized emphasis added).
Id.
Id at pp. 41, 49 (italicized emphasis added).
Alegre Deposition at p. 71.
Turning to Dr. Alegre's opinion regarding radiculopathy, pain and numbness in the arm, Dr. Alegre attributed the onset of left arm pain and numbness or weakness to the accident in question. His basis was that the reported "symptoms in the arm were new." However, it is clear that Hixon was less than forthcoming in relating his medical history to Dr. Alegre. The history of the plaintiff's medical treatment discussed above, of which Dr. Alegre had no knowledge, evidences that these particular symptoms were diagnosed more than a decade before and were determined to be chronic, permanent and recurrent. Accordingly, to the extent that plaintiff attempts to relate those symptoms, including ongoing recurrent radiculopathy and numbness and/or weakness in his upper extremities, to this accident, the Court cannot so find based upon a thorough review of Hixon's medical history and the testimony of Cupp, who followed the plaintiff's neck conditions for years prior to the instant accident. Most notably, Dr. Alegre's opinion was based entirely upon the faulty assumption that Hixon's arm symptoms were "new."
Id.
Id. at pp. 71, 75.
Id. at p. 72.
Id. at p. 87.
Dr. Henry Eiserloh, a board certified orthopedic spine surgeon, testified that he performed an examination of the plaintiff on April 16, 2003. In connection with his examination, he had the opportunity to review the prior imaging study (cervical MRI film dated August 28, 2002) as well as the X-rays performed by Cupp Chiropractic. Dr. Eiserloh opined that the MRI showed chronic spondylitic change, with no evidence of significant acute disc herniation, no significant cord or nerve compression and no encroachment on the thecal sac. He further opined that at C4-5 there was evidence of a ridge or bony osteophyte, at C5-6 there was a left paracentral one millimeter bony osteophyte and C6-7 showed essentially the same spondylitic changes. He found that there was no significant central or foraminal stenosis.
Dr. Eiserloh's physical and neurological examination of Hixon revealed that his motor function was normal in both the upper and lower extremities, sensation to light touch was decreased in the entire left arm as compared to the right, reflexes were symmetrical and normal in both upper extremities and that the Clonus, Hoffman, L'Hermite and Babinsky tests, which were administered to determine whether there was any evidence of chronic spinal cord compression or myleopathy, were normal. Physical examination of the neck revealed some tenderness on the left greater than on the right, which tenderness was global and non — focal. Dr. Eiserloh explained that since the tenderness was global and non — focal, there was no particular muscle that was inflamed; thus, the tenderness reported was a subjective complaint. Regarding his observation that sensibility was decreased in a global, non — dermatome pattern in the entire left upper extremity, Dr. Eiserloh explained that this finding indicates that the sensitivity is not consistent with any particular nerve root compression. He further opined that, generally, if you have C6 nerve root compression, the patient will experience pain in one part of the arm and not the entire arm. Simply stated, this was also a non — organic finding based upon the patient's subjective complaint and not associated with any particular muscle or muscle group.
Dr. Eiserloh's impression was that Hixon had chronic, degenerative changes in the cervical spine and that there were no significant acute findings to account for the plaintiff's complaints of persistent pain. Most notably, there was no particular event that Dr. Eiserloh could point to that would account for the findings on Hixon's MRI scan; rather, his opinion was that the MRI showed chronic spondylitic changes, which were the result of the aging process. As to the plaintiff's pain, Dr. Eiserloh opined that Hixon probably did experience a cervical strain at the time of the November 7, 2001 accident, but that the pain attributable to this strain was superimposed upon his degenerative condition, and should have resolved with the passage of time. Dr. Eiserloh's opinion was that the plaintiff's continuing pain is, more probably than not, the result of the degenerative condition itself and not aggravation of his prior condition.
Both Charlotte Ray and Hixon testified that, up until the time of the instant accident, he enjoyed dancing and travel without experiencing of significant pain. Ms. Ray testified that she has dated Hixon since 1994. She testified that, because they both enjoyed dancing, they used to travel to towns outside of New Orleans to go "Cajun" or Zydeco dancing. Regarding the plaintiff's present inability to dance, the record reflects that long ago Hixon represented to the Social Security Administration that he had all but put away his dancing shoes. More particularly, as early as November 21, 1991, plaintiff reported that he was no longer capable of dancing, which he used to enjoy. Additionally, evidence in the medical records indicates that the plaintiff continued to travel extensively post — accident.
Adm.Rec.at 113.
See Report of Dr. Alegre dated January 9, 2003 [plaintiff's Exh. "4"]
Hixon testified that he is currently disabled, that he was disabled on the day of the accident and that he has been disabled since his work — related accident in 1986. The plaintiff further testified that, in addition, he was injured in five prior vehicular "rear — end" collisions. On the day in question, the plaintiff had had an appointment with Dr. Gould regarding his pain symptoms, primarily in th lower back and originating from his Crohn's Disease; however, Hixon admitted that the ongoing treatment by Dr. Gould addressed some neck pain that he did experience from time to time.
The plaintiff testified that after the accident he was treated by Dr. Cupp for his neck until May, 2002, without any significant improvement. Upon his return from California on August 27, 2002, he saw an orthopedic surgeon, Dr. Alegre, who prescribed muscle relaxers, pain medications and later epidural steroid injections. Plaintiff testified that the epidural steroid injections improved the pain in his neck, but only temporarily. Hixon noted that he had been dancing recently and that, since doing so, the pain in his neck has returned. As to his present neck and arm pain, the plaintiff testified that it has affected his lifestyle as follows, to wit: (1) it has eliminated the hope he had of returning to work; (2) the medication prescribed to treat his pain symptoms affects his mind; and (3) he can no longer dance or exercise at the gym without experiencing pain.
The Court notes that it is uncontroverted that Hixon's pain medications prescribed prior to the accident in question and thereafter do not vary in any significant particulars. Hixon admitted that he was diagnosed with a herniated disc after his second automobile accident in 1987. The plaintiff further admitted that his complaints of chronic neck pain formed part of the basis for his award for social security benefits in 1994. Additionally, Hixon admitted that he testified in deposition that prior and up to the date of accident he suffered neck pain on a daily basis, although he claims that his neck pain was more pronounced after November 7, 2001. During the time period leading up to the accident in question, the plaintiff admitted that, in addition to treatment by Dr. Gould at the LSU Pain Clinic, as part of the clinic's package, he was treated by psychiatrists, an orthopedist, a neurologist and a physical therapist before the accident in question.
The Court finds that the plaintiff's longstanding cervical spondylitic condition was aggravated by the accident on November 7, 2001 and that he did experience increased pain for a period of time due to the insult. More particularly, the Court finds that he suffered a cervical strain and aggravation of neck pain symptoms due to the accident, which had resolved by May 22, 2002. As to any continuing pain, radiculopathy and/or weakness and numbness in the arms noted by Dr. Alegre months later, whether left or right, the medical evidence reflects that such condition was longstanding, permanent and recurrent. The evidence, considered as a whole, indicates that, more probably than not, the plaintiff suffered a cervical strain and concomitant aggravated pain for a period of approximately six (6) months. Although the plaintiff undoubtedly continued to suffer neck pain after May 22, 2002 and has ongoing pain, whether psychogenic or due to spondylitic changes, such ongoing pain and any concomitant limitation of his activities are more likely than not the result of the chronic, degenerative changes discussed at length above rather than the November 7, 2001 accident. Moreover, the Court questions Hixon's credibility in this regard, particularly in light of his failure disclose his prior neck injuries and diagnoses of a herniated cervical disc to Dr. Alegre, his treating orthopedist.
As to Hixon's attempt to foist any blame for his dashed hopes of returning to work on this minor parking lot incident, the Court remains unpersuaded. Moreover, the evidence shows that Hixon's injury had only a minor impact on his life and his lifestyle for a period of six months. As of May, 2002, Hixon was able to travel back and forth between California, Louisiana and Atlanta as he had prior to the accident in question. Although his forays onto the dance floor would aggravate his pain, as did any increase in activity, credible evidence, including Dr. Gould's medical report from Hixon's November 7th consultation just prior to the accident, confirms that increased activity exacerbated the plaintiff's pain symptoms even prior to the accident.
DAMAGES
Hixon's claims for damages in this case include physical pain, suffering, mental anguish, loss of enjoyment and the cost of past and future medical expenses. At the outset, this Court notes that the primary objective of any award of damages is to restore the injured party, to the extent possible, to his state immediately preceding the injury, Of course, severity and duration are factors to be considered in both an award of special damages and in assessing quantum for mental and physical pain and suffering. The plaintiff presented evidence of medical expenses incurred to date for treatment of his injuries in the total amount of $19,528.90. This amount includes the cost of all treatment and prescribed medication and therapy i.e., even that which cannot be fairly attributed to the aggravation of his pre-existing condition.
See Special Damage Recapitulation [plaintiff's Exh. "3"].
With the exception of the invoice of Cupp Chiropractic in the amount of Six Thousand, Eight Hundred Seventy-Five ($6,875.00) dollars, the balance of the medical special payments were for medical treatments and physical and prescription drug therapy post — dating August 1, 2002. Consistent with the foregoing findings, the Court finds that the defendant is not liable for any future medical care. Although medical expenses (past and future) are proper items of damages, recovery of such damages must be confined to expenses related to the accident.
See Cupp Chiropractic Invoice [plaintiff's Exh. "6" in globo].
Gladney v. May, 697 So.2d 1022, 1027-28 (La.App. 2nd Cir.), cert. denied, 750 So.2d 1101 (La. 1998).
The plaintiff, being totally disabled prior to the accident involving Dr. Lockhart, admittedly suffered no loss of wages. Moreover, the plaintiff's future earning capacity was not affected in any manner by the aggravation of his pre-existing condition. The Court previously determined based upon the medical evidence discussed at length above that any residual disability and pain is the result of the plaintiff's pre-existing condition, which remained after his cervical strain resolved.
Turning to the issue of general damages, the Court recognizes that such damages cannot be set with any pecuniary exactitude. The injury, its severity and duration are factors to be considered in assessing quantum for pain and suffering. Having considered all of the evidence, the Court finds that Twelve Thousand ($12,000.00) Dollars is a reasonable award for the plaintiff's past physical and mental pain, suffering, anguish and loss of life's enjoyment, which is fairly attributable to the plaintiff's cervical strain/soft tissue injury caused by the accident at issue. This figure is supported by the following decisions: Alexander v. Ford, 2004 WL 125101 (La.App. 5th Cir.); Harvey v. Cole, 808 So.2d 771 (La.App. 4th Cir. 2002); and Vines v. Wood, 785 So.2d 126 (La.App. 2nd Cir. 2001).
Gladney, supra.
Stegall v. State Farm Mut. Automobile Ins. Co., 702 So.2d 66, 69 (La.App. 2nd Cir. 1997).
Therefore, the Court finds that the damages suffered by the plaintiff as a result of the accident on November 7, 2001, as demonstrated by the evidence adduced at trial, are as follows:
Past Medical Expenses $6,875.00
Past Physical/Mental Pain, Suffering, Anguish and Loss of Life's Enjoyment $12,000.00
TOTAL DAMAGES $18,875.00 plus interest from date of judicial demand
Accordingly, IT IS ORDERED that there be judgment in favor of the plaintiff, Clarence Hixon, and against the defendants, Jimmy Lockhart and Nationwide Mutual Insurance Company, in the amount of Eighteen Thousand, Eight Hundred Seventy — Five ($18,875.00) Dollars, plus interest from the date of judicial demand, with each party to bear their own expenses.