Corey Cobena and Dajonic Smith Versus Ace American Insurance Company Bfi Waste Services, LLC and Vinicio Ardon

COREY COBENA AND DAJONIC SMITH NO. 21-CA-630

VERSUS FIFTH CIRCUIT

ACE AMERICAN INSURANCE COMPANY COURT OF APPEAL
BFI WASTE SERVICES, LLC AND
VINICIO ARDON STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 782-290, DIVISION "N"
HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING

August 03, 2022

STEPHEN J. WINDHORST
JUDGE

Panel composed of Judges Marc E. Johnson,
Stephen J. Windhorst, and Hans J. Liljeberg

AMENDED, AND AFFIRMED AS AMENDED
SJW
MEJ
HJL

COUNSEL FOR PLAINTIFF/APPELLANT,
CORY COBENA
Erin A. Fisher
Jacqueline F. Maloney

COUNSEL FOR DEFENDANT/APPELLEE,
ACE AMERICAN INSURANCE COMPANY, BFI WASTE SERVICES, LLC
AND VINICIO ARDON
Francis H. Brown, III

WINDHORST, J.

In this personal injury action, plaintiff/appellant, Cory Cobena, appeals the

trial court’s judgment awarding him $35,000.00 in general damages and $10,000.00

in past medical expenses for his soft tissue injuries and finding he did not suffer a

traumatic brain injury. For the following reasons, we amend the award for past

medical expenses to $14,806.14 and affirm in all other respects.

FACTS and PROCEDURAL HISTORY

This case involves an automobile accident that occurred on the afternoon of

June 28, 2017, in which Vinicio Ardon rear-ended Cobena. On April 3, 2018,

Cobena and one of his passengers, Dajonic Smith, filed suit against Ardon, Ardon’s

employer, BFI Waste Services, LLC, and BFI’s insurer, ACE American Insurance

Company, alleging Ardon’s negligence caused the accident. Plaintiffs claimed that

the accident caused them to suffer injuries to their entire bodies, mental anguish,

inconvenience, and aggravation as a result of the accident.

The accident occurred while plaintiffs were traveling west in the inside or left

lane of Highway 90. Ardon was traveling in same direction as plaintiffs in the

outside or right lane of Highway 90 and following an 18-wheeler truck. Because the

18-wheeler in front of Ardon slowed down to turn off the highway, Ardon switched

into the left lane to pass it. When he did so, Ardon rear-ended plaintiffs’ vehicle

which had slowed down to make a U-turn. After rear ending plaintiffs, Ardon

swerved off and hit an eighteen-wheeler.

A two-day trial in this matter commenced on April 5, 2021 regarding

Cobena’s claims. Cobena attempted to prove that he suffered a cervical herniation

and a lumbar herniation, a traumatic brain injury, and an injury to his left thumb.

Although Cobena presented substantial medical testimony and records regarding his

alleged injuries, Cobena’s credibility was severely questioned. The following was

revealed at trial.

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Ardon testified that, after the accident, he walked over to Cobena’s vehicle to

check on the occupants and observed that Cobena was conscious and was speaking

to the passengers in the vehicle. EMS transported Cobena and his passengers to

University Medical Center in an ambulance. EMS personnel noted that Cobena

denied losing consciousness during the accident. On the way to UMC, EMS

personnel administered to Cobena a Glasgow Coma Scale which is a test used to

evaluate a person’s level of consciousness and to test for a traumatic brain injury.

Cobena’s score on all four tests was normal.

At UMC, Cobena had a number of x-rays and CT scans done on his head,

lumbar spine, cervical spine, abdomen, pelvis, and chest. None of them revealed an

acute abnormality. The CT imaging showed that the cervical spine had degenerative

changes and a bulging disc but no acute abnormality. At UMC, Cobena also denied

hitting his head and any loss of consciousness. Cobena was discharged from UMC

emergency the same day as the accident without focal neurological deficits, evidence

of head trauma, or a TBI diagnosis.

At trial, Cobena presented substantial medical records and testimony from

several doctors regarding his injuries. While Cobena’s treating physicians related

his alleged injuries to the 2017 accident, it was clear from the evidence and testimony

that his treating physicians had substantially incomplete information regarding

Cobena’s medical history and activities in making their diagnoses. For example,

Cobena’s physicians were unaware that he had been injured in a previous accident

on December 11, 2015 or that he had previously suffered severe neck and back pain.

The physicians were also unaware that after the 2017 accident Cobena was operating

a holiday light business which required him to climb ladders onto roofs and hang

lights, an internet sales business, and an automobile repair shop. Cobena’s

physicians were also unaware that he engaged in boxing.

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On September 25, 2017, Dr. Peter Liechty, a neurosurgeon, first examined

Cobena. Cobena told Dr. Liechty that “he had no significant health issues or spine

history concerning either his cervical or lumbar spine” prior to the 2017 accident.

Cobena did not disclose to Dr. Liechty that he had been involved in a motor vehicle

accident in 2015, or that he suffered back injuries in that accident. Medical records

from 2015 and 2016 indicate that Cobena reported severe neck and back pain after

the 2015 accident.

On December 5, 2018, Dr. Troy Beaucoudray, a neurologist, examined

Cobena who reported experiencing headaches and neck and back pain. Dr.

Beaucoudray’s report indicates that Cobena was found to be in no acute distress and

well developed with moderate tenderness in the spine and an indication of spasms.

Cobena claimed no significant past medical history and only reported the 2017

accident to Dr. Beaucoudray. Surveillance photographs taken the day before this

appointment show that Cobena had been climbing on the roof of a house hanging

Christmas lights for three hours.

Dr. Najeeb Thomas, a neurosurgeon, reviewed Cobena’s MRI imaging taken

on July 27, 2017 and found no acute or traumatic findings. Dr. Paul Koenigsberg, a

neuroradiologist, also reviewed this imaging and noted degenerative disc disease

with no evidence of acute or traumatic injury.

Cobena underwent a neuropsychological evaluation from Dr. Roberta Bell, a

neuropsychologist, in early 2020 and claimed that he had a traumatic brain injury

due to the 2017 accident. Cobena reported issues with headaches, dizziness,

memory, forgetfulness, concentration, speech, language, motor coordination,

anxiety, and irritability. Cobena denied any issues or history of illness prior to the

accident. Dr. Bell’s April 2020 report states that Cobena had “difficulty providing

clear and accurate autobiographical information, including employment history”;

and that he provided vague information regarding his work history, and gave

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conflicting information. Medical records from 2016 indicate that Cobena regularly

complained of headaches, dizziness, fatigue, irritability, forgetfulness, loss of

memory, and light sensitivity, among other things.

On February 13, 2020, Dr. Chad Domangue, a neurologist and a psychiatrist,

first evaluated Cobena for headaches and neck and back pain. Cobena again denied

any prior medical conditions. At this evaluation, he claimed he lost consciousness

during the 2017 accident even though after the accident he had denied losing

consciousness or any head injury.

The defense also outlined numerous instances where Cobena either gave

conflicting testimony or false information at his depositions. For example, Cobena

denied ever being married until the defense presented documentation of his divorce.

Cobena responded inaccurately regarding the number of children he had until it was

finally revealed that he has three children. Cobena denied ever boxing but the

defense presented video impeachment evidence of him sparring with another boxer

with no physical limitations. Photographs and video of Cobena hitting a punching

bag with no physical limitations were admitted into evidence. In addition, during

his two depositions, Cobena denied the ability to recall information in response to

over 200 questions.

After a bench trial, the trial court found that Ardon caused the accident and

that the accident caused Cobena to suffer soft tissue injuries. The trial court awarded

Cobena $35,000 in general damages and $10,000 in past medical expenses. Based

on credibility issues with Cobena’s testimony, the trial court found Cobena did not

suffer any long term injuries to his cervical or lumbar spine or traumatic brain injury

as alleged.

LAW and ANALYSIS

Cobena asserts a number of issues related to the trial court’s finding that the

2017 accident only caused Cobena to suffer soft tissue injuries and not any long term

21-CA-630 4

injury or traumatic brain injury, as well as the damage award of $35,000 in general

damages and $10,000 in past medical expenses. Specifically, Cobena asserts that

the trial court erred in failing to find that he suffered a traumatic brain injury, cervical

and lumbar herniations, and a thumb fracture based on the medical expert testimony

at trial. Cobena also asserts the trial court erred in not awarding the full amount of

his past and future medical expenses and in awarding an abusively low amount of

general damages.

In a personal injury case, the plaintiff bears the burden of proving a causal

relationship between the injury sustained and the accident which caused the injury.

Stoll v. Allstate Ins. Co., 11-1006 (La. App. 5 Cir. 05/08/12), 95 So.3d 1089, 1095.

The test for determining the causal relationship between the accident and subsequent

injuries is whether the plaintiff proved through medical testimony that it is more

probable than not that the subsequent injuries were caused by the accident. Stoll, 95

So.3d at 1095, citing Powell v. Chabanais Concrete Pumping, Inc., 11-408 (La. App.

5 Cir. 12/28/11), 82 So.3d 548, 558; Mart v. Hill, 505 So.2d 1120, 1128 (La. 1987).

Whether an accident caused a person’s injuries is a question of fact that should not

be reversed on appeal absent manifest error. Martin v. East Jefferson General Hosp.,

582 So.2d 1272, 1276 (La. 1991).

In reviewing a trial court’s findings of fact, appellate courts employ a

“manifest error” or “clearly wrong” standard of review. Rosell v. ESCO, 549 So.2d

840, 844 (La. 1989); Arabie v. CITGO Petroleum, 10-2605 (La. 03/13/12), 89 So.3d

307, 312; Antill v. State Farm Insurance Co., 20-131 (La. App. 5 Cir. 12/02/20), 308

So.3d 388. An appellate court may not set aside a trier of fact’s finding in the

absence of manifest error. Rosell, supra. When there are two permissible views of

the evidence, the fact finder’s choice between them cannot be manifestly erroneous.

Rosell, supra; Stobart v. State, Through Department of Transportation and

Development, 617 So.2d 880, 883 (La. 1993).

21-CA-630 5

Reasonable evaluations of credibility and reasonable inferences of fact should

not be disturbed upon review, where conflict exists in the testimony. Hunter v.

Terrebone, 18-134 (La. App. 5 Cir. 12/27/18), 263 So.3d 993, 997, writ denied, 19-

144 (La. 3/18/19), 267 So.3d 90; Purvis v. Jefferson Par. Hosp. Serv., 16-434 (La.

App. 5 Cir. 12/21/16), 209 So.3d 363, 372-73. The fact finder evaluates

the credibility of both expert and lay witnesses to determine the most credible

evidence. Id.

The Alleged Traumatic Brain Injury

Cobena asserts the trial court erred in rejecting the expert testimony of his

treating physicians and the extensive medical records finding that he suffered a

traumatic brain injury related to the 2017 accident. He also asserts that the trial court

erred in not awarding him all past and future medical expenses related thereto. Based

on the record, we do not find the trial court’s conclusion that Cobena’s did not suffer

a traumatic brain injury as a result of the 2017 accident to be manifestly erroneous

or clearly wrong.

At the scene of the accident, Ardon observed that Cobena was conscious and

speaking with the passengers in his vehicle. In addition, Cobena denied any loss of

consciousness to EMS personnel and at the emergency room after the accident.

EMS personnel noted that there were no visible signs of trauma. In fact, EMS

administered four Glasgow Coma Scale tests to Cobena before arriving at the

emergency room, all which produced normal results.

Cobena underwent testing at the emergency room following the accident. No

abnormality was identified, and the emergency room records indicate that Cobena

had no neurological deficits or evidence of head trauma from the accident. Cobena

later reported to his doctors that he lost consciousness at the time of the accident but

post-accident records and witnesses clearly contradict this assertion. In addition,

medical records show that before the 2017 accident, Cobena claimed he suffered

21-CA-630 6

from headaches, dizziness, forgetfulness and other similar ailments, but denied any

prior issues to those physicians treating him after the 2017 accident.

Further, it is evident the trial court’s findings were based on credibility

determinations. The reasons for judgment specifically state “[b]ased on the

credibility issues with plaintiff Cory Cobena’s testimony coupled with the

surveillance of Cory Cobena, the Court finds that plaintiff Cory Cobena did not

suffer any long term injury resulting from the accident.” When the trial court’s

findings are based on determinations regarding the credibility of witnesses, the

manifest error standard demands great deference to the trier of fact’s findings; for

only the factfinder can be aware of the variations in demeanor and tone of voice that

bear so heavily on the listener’s understanding and belief in what is said. Mancuso

v. Poole, 03-119 (La. App. 5 Cir. 5/28/03), 848 So.2d 154, 161. Also, the weight to

be given to a treating physician’s opinions is largely dependent upon the physician’s

qualifications and the facts upon which his opinions are based. Lewis v. Ingles, 02-

121 (La. App. 5 Cir. 7/30/02), 823 So.2d 1033, 1038, writ denied, 02-2463 (La.

11/22/02), 829 So.2d 1052; Bates v. Willis, 613 So.2d 691 (La. App. 5th Cir. 1993).

The record supports a conclusion that Cobena concealed relevant facts and history

from his treating physicians.

Having reviewed the record before us and considering the credibility issues,

we cannot find that the trial court was manifestly erroneous in concluding that

Cobena did not suffer a traumatic brain injury from this accident. Thus, we also find

no error in the trial court’s refusal to award Cobena medical expenses or general

damages related to his alleged traumatic brain injury.

The Alleged Back Injuries

Cobena asserts the trial court erred in rejecting the expert testimony and

medical records of the treating physicians that he suffered a cervical herniation at

C5-6 and a lumbar herniation L4-5 requiring extensive medical treatment. He also

21-CA-630 7

asserts that the trial court erred in not awarding him all past and future medical

expenses related thereto.

As noted above, the weight to be given even to a treating physician’s opinions

is largely dependent upon the facts upon which his opinions are based. Lewis, supra.

Here, the record shows that Cobena’s treating physicians had incomplete and/or

inaccurate information regarding Cobena’s previous injuries and residual symptoms,

particularly his injuries from the 2015 accident. It was therefore within the trial

court’s vast discretion to reject the expert testimony of Cobena’s treating physicians.

Furthermore, CT imaging and x-rays taken at UMC identified no acute or traumatic

injury to the back. In reviewing x-rays and scans taken of Cobena, multiple

physicians found no acute abnormality and only degenerative disease issues.

Moreover, there was evidence presented showing Cobena working on

automobiles, climbing on roofs and hanging Christmas lights, and boxing without

any physical limitations after the 2017 accident. This evidence, if believed, shows

that significant information was withheld from Cobena’s treating physicians.

Considering the foregoing and the circumstances in this case, we find no

manifest error in the trial court’s determination that Cobena did not suffer any long

term cervical or lumbar injuries as a result of the 2017 accident. We also find no

error in the trial court’s refusal to award Cobena medical expenses or general

damages related to the alleged long term lumbar and cervical back injuries.

The Alleged Thumb Injury

Cobena asserts the trial court erred in concluding that the injury to his left

thumb was not caused by the 2017 accident. We disagree. There is no report of an

injury to Cobena’s left thumb after the accident at UMC. Cobena first reported his

left thumb injury to Dr. Domangue on February 13, 2020, and Dr. Domangue had

no idea when this injury first surfaced. Thus, we have no basis to conclude that the

trial court’s finding that Cobena did not suffer a thumb injury in the 2017 accident

21-CA-630 8

is manifestly erroneous, especially considering contradictory evidence tending to

show a lack of candor. Accordingly, we find no error in the trial court’s refusal to

award medical expenses or general damages for this alleged injury.

Cobena’s Medical Expenses Award

Cobena asserts the trial court erred in not awarding him all of his past medical

expenses. The trial court awarded Cobena $10,000 for medical expenses related to

his soft tissue injuries.

Special damages are those which have a “ready market value,” such that the

amount of the damages theoretically may be determined with relative certainty, and

include past and future medical expenses. Gaspard v. State Farm Bureau Cas. Ins.

Co., 13-0800 (La. App. 1 Cir. 9/24/14), 155 So.3d 24, 32. In a personal injury suit,

the plaintiff bears the burden of proving a causal connection between the accident and

the alleged injuries. Hunter, 263 So.3d at 997. The victim must establish that he

incurred past medical expenses in good faith as a result of his injury. Menard v.

Lafayette Ins. Co., 09-1869 (La. 3/16/10), 31 So.3d 996, 1006. When a plaintiff

alleges he has incurred medical expenses as a result of injuries suffered in an

accident and the treatment is supported by a bill, that evidence is sufficient evidence

to support an award for past medical expenses unless there is sufficient contradictory

evidence or reasonable suspicion that the bill is unrelated to the accident. Jackson

v. Drachenburg, 19-345 (La. App. 5 Cir. 1/8/20), 288 So.3d 289, 293.

Because past medical expenses are special damages that are generally

supported by medical bills submitted into evidence, the amount can typically be

determined with substantial certainty. Here, the trial court awarded Cobena $10,000

for medical expenses, which does not appear to be based on specific medical bills

presented at trial. According to the UMC invoice from the date of the accident

submitted into evidence, Cobena’s emergency room medical treatment from the date

of the accident amounted to $12,632.15. An invoice from West Jefferson Medical

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Center indicates that Cobena was charged $468.99 for the ambulance. In addition,

an invoice from Shoemaker Chiropractic for treatment on July 7, 2017 related to the

back pain amounts to $1,705.00. Based on these medical invoices, the record

supports a finding that Cobena incurred $14,806.14 in medical treatment related to

the 2017 accident. Because there are invoices which represent with mathematical

certainty the amount of past medical expenses Cobena incurred due to the accident,

we amend the judgment to award Cobena $14,806.14 for medical expenses.

Cobena’s General Damage Award

Cobena asserts the trial court’s award of $35,000 in general damages is

abusively low considering the injuries Cobena sustained.

The Supreme Court has recognized the great, even vast, discretion vested in

the trier of fact in determining general damages. Youn v. Maritime Overseas

Corp., 623 So.2d 1257 (La. 1993), cert. den. 510 U.S. 1114, 114 S.Ct. 1059, 127

L.Ed.2d 379 (1994). The assessment of the appropriate amount of general damages,

by a trial judge or jury, is a determination of fact, one entitled to great deference on

review. Hunter, 263 So.3d at 999. The role of the appellate court in reviewing

general damages is not to decide what it considers to be an appropriate award, but

rather to review the exercise of discretion by the trier of fact. Youn, 623 So.2d at

1261.

The initial inquiry, in reviewing an award of general damages, is whether the

trier of fact abused its discretion in assessing the amount of damages. Howard v.

Union Carbide Corporation, 09-2750 (La. 10/19/10), 50 So.3d 1251, 1256. Only

after a determination that the trier of fact abused its discretion is a resort to prior

awards appropriate, and then only for the purpose of determining the highest or

lowest point which is reasonably within that discretion. Howard, 50 So.3d at 1256;

Williams, 168 So.3d at 822; Youn, 623 So.2d at 1260.

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Having considered the extensive record in its entirety, we find that the trial

court’s general damage award is clearly not manifestly erroneous or clearly wrong,

but reflects its reasonable credibility choices and interpretations of the evidence.

Dr. Jeffrey Lewine’s Supplemental Expert Report

Cobena next asserts the trial court erred in not admitting Dr. Lewine’s

supplemental report. The trial court refused to admit this report because it was

submitted untimely under the scheduling order. La. C.C.P. art. 1551 provides the

trial court with great discretion in implementing pre-trial orders and ensuring that

the items of the pre-trial order are enforced. Moonan v. Louisiana Med. Mut. Ins.

Co., 16-113 (La. App. 5 Cir. 9/22/16), 202 So.3d 529, 533, writ denied, 16-2048 (La.

1/9/17), 214 So.3d 869. A party has a right to expect compliance with the pre-trial

order by the opposing party, and prepare for trial accordingly. When a party’s

attorney fails to obey a pre-trial order, the court, sua sponte or on the motion of a

party, may make such orders as are just, including an order prohibiting the

disobedient party from introducing designated matters into evidence. Id. Absent an

abuse of discretion, the trial court’s decision whether to admit or exclude evidence

upon objection on the grounds of failure to abide by the pre-trial order will be upheld.

Cobena offers no basis to indicate that the exclusion of this report was an abuse of

discretion, and the record does not support that conclusion. We therefore find no

error in the trial court’s exclusion of this report.

DECREE

For the reasons stated, the judgment is amended to increase the award of past

medical expenses to $14,806.14, and is affirmed in all other respects.

AMENDED, AND AFFIRMED AS AMENDED

21-CA-630 11

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
AUGUST 3, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

21-CA-630
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN D. ENRIGHT, JR. (DISTRICT JUDGE)
ERIN A. FISHER (APPELLANT) JACQUELINE F. MALONEY (APPELLANT) ANTHONY V. LANASA, JR. (APPELLEE)
MARK GERARD TAUZIER (APPELLEE) MICHAEL K. MELUCCI (APPELLEE) JASON J. MARKEY (APPELLEE)
LEO J. PALAZZO (APPELLEE) MARIO A. ARTEAGA, JR. (APPELLEE) ALEXANDER A. LAURICELLA
CARL A. WOODS, III (APPELLEE) ERIN BRUCE SAUCIER (APPELLEE) (APPELLEE)
FRANCIS H. BROWN, III (APPELLEE)

MAILED
LAUREN A. DUNCAN (APPELLEE) IRVY E. COSSE, III (APPELLEE) JON YEAGER (APPELLEE)
ATTORNEY AT LAW KATELYN N. DONNELLY (APPELLEE) ATTORNEY AT LAW
149 NORTH NEW HAMPSHIRE STREET ATTORNEYS AT LAW 2700 ATHANIA PARKWAY
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CALEB H. DIDRIKSEN, III (APPELLEE) NEW ORLEANS, LA 70112 LARRY J. FELDMAN, JR. (APPELLEE)
ATTORNEY AT LAW ATTORNEY AT LAW
3114 CANAL STREET DESIREE M. CHARBONNET (APPELLEE) MCGLINCHEY STAFFORD
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