Jerome Freeland v. Ernest Bourgeois

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-932

JEROME FREELAND

VERSUS

ERNEST BOURGEOIS, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 02-4793
HONORABLE R. RICHARD BRYANT, JR., DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Billy Howard Ezell, Judges.

REVERSED AND RENDERED.

James Clarence Lopez
Guglielmo, Lopez & Tuttle
P. O. Drawer 1329
Opelousas, LA 70571
Telephone: (337) 948-8201
COUNSEL FOR:
Defendant/Appellee - Bridgefield Casualty Ins. Co.

Arthur J. O’Keefe
203 West Clarence Street
Lake Charles, LA 70601
Telephone: (337) 439-6930
COUNSEL FOR:
Plaintiff/Appellant - Jerome Freeland

Kenneth Michael Wright
203 West Clarence Street
Lake Charles, LA 70601
Telephone: (337) 439-6930
COUNSEL FOR:
Plaintiff/Appellant - Jerome Freeland

Charles V. Musso, Jr.
Plauche, Smith & Nieset
P. O. Box 1705
Lake Charles, LA 70602
Telephone: (337) 436-0522
COUNSEL FOR:
Defendants/Appellees - Coregis Insurance Company, Calcasieu
Parish School Board, and Ernest Bourgeois

Ike Amos Hobaugh
Wright & Moreno
203 West Clarence Street
Lake Charles, LA 70601-9431
Telephone: (337) 439-6930
COUNSEL FOR:
Plaintiff/Appellant - Jerome Freeland

THIBODEAUX, Chief Judge.

The plaintiff, Jerome “Jay” Freeland, appeals a judgment rendered

pursuant to a jury verdict which failed to award him damages as a result of an

intersectional accident for which the defendants, Ernest Bourgeois, his employer,

Calcasieu Parish School Board, and its insurer, Coregis Insurance Company,

stipulated liability.

Finding juror confusion and manifest error in evaluating the evidence,

we reverse the judgment rendered in favor of the defendants. We award general

damages in the amount of $50,000.00 and special damages in the amount of

$394,832.40.

I.

ISSUES

We must decide:

(1) whether the trial court erred in allowing three
witnesses to testify at trial where their individual
names were not listed in the pre-trial order until after
the pre-trial order deadline; and,

(2) whether the jury erred in finding that Mr. Freeland
suffered no compensable injuries in the auto
accident of October 31, 2001 and, if so, what
quantum of damages should be awarded.

II.

FACTS AND PROCEDURAL HISTORY

At approximately eight o’clock on the morning of October 31, 2001,

forty-three-year-old Jerome “Jay” Freeland, chief radio engineer for Progressive

Communications at APEX Broadcasting, was driving to work in his company’s

Chevrolet van. After stopping at a four-way stop at the intersection of Shady Lane

and Guillory Street in Westlake, Louisiana, he proceeded through the intersection and

was struck by Mr. Bourgeois, who was driving a Ford truck owned by his employer,

Calcasieu Parish School Board. Mr. Bourgeois admitted that he ran the stop sign in

his lane of travel. He told Mr. Freeland that he was traveling at 45 miles per hour

when the collision occurred but reported to the officer on the scene that he was only

traveling 25 miles per hour, which was the posted speed limit at that location.

The School Board truck struck the van on the passenger door and

knocked the van across the intersection, where both vehicles came to rest near the

stop sign opposite the one for which Mr. Freeland had stopped. Both vehicles were

totaled as a result of the accident. Even though Mr. Freeland was belted, the impact

of the collision threw his head and body into the driver-side door and window on his

left side, and then ricocheted him back to the right. Broken glass struck Mr. Freeland

about the head, face and hands. Mr. Freeland sustained an additional cut on the

bridge of his nose from his glasses as they were knocked off of his face. An

emergency team arrived at the scene and, noting blood and abrasion on the back of

Mr. Freeland’s head, removed the pieces of glass and attended to the cuts on his head,

face, and hands. Mr. Freeland said that he was shaken up but did not go in the

ambulance to the hospital. His employer came to the scene and drove him to the

workplace, which was about a block away.

On the day of the accident, Mr. Freeland did paper work on the accident,

and was driven to a meeting in Jennings where he repaired a loose speaker wire. He

was taken home early and told to rest up and take aspirin. The following day, Mr.

Freeland’s supervisor, General Operations Manager Tom Williams, informed Mr.

Freeland that it was his last day with APEX Broadcasting. A few weeks later, Mr.

Williams was also terminated.

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Prior to coming to Louisiana, Mr. Freeland was a retired army major and

a single father who had had custody of his teenaged son since the boy was around two

years old. He had been a chief radio engineer working with Tom Williams in

Anniston, Alabama for six years. Mr. Williams accepted a position in Louisiana with

APEX Broadcasting and recruited Mr. Freeland to work for him here in April of

2001. They anticipated eighteen to twenty-four months of work in Louisiana

upgrading and building new facilities here and then a lucrative move with the

company to South Carolina. Upon termination, because APEX had supplied Mr.

Freeland’s vehicle and hotel lodging in Louisiana, as well as his cell phone, Mr.

Freeland was without resources in the area. He accepted the invitation of Tom

Williams to stay at his house.

Due to the APEX construction project and scheduling requests, Mr.

Freeland had already scheduled vacation time to begin on November 3, 2001. He

flew to his sister’s house in Largo, Florida. He had begun to suspect a sprain or

pulled muscles due to increasing neck, back, and shoulder pain and had been self

treating with Ibuprofen, wraps and topical analgesics. He also had headaches, blurred

vision, vertigo, and numbness and tingling in his arms and hands. Mr. Freeland’s

sister suggested that he and his son move in with her. He began looking for work and

unsuccessfully called various radio stations and engineers that he knew. He was

advised to wait until he was clear of his injuries. He returned to Anniston, Alabama,

where he had a home and rental properties.

On November 27, 2001, Mr. Freeland went to his chiropractor in

Anniston, Dr. David Wade, for treatment due to increasing pain from the accident.

Dr. Wade performed cervical x-rays and found a reversal of the lordotic curve, stair-

stepping in the lateral curve indicating ligament damage, and compression of the

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Luschka joint at C6. Mr. Freeland also had bilateral elbow pain and numbness in his

hands. Dr. Wade diagnosed cervical and thoracic strain and sprain, cervical

subluxation, vertigo and blurred vision, and related Mr. Freeland’s problems in

November 2001 to the auto accident on October 31, 2001. Dr. Wade treated Mr.

Freeland for two weeks and suggested that he see a neurologist.

Mr. Freeland lost his properties in Anniston, Alabama to foreclosure, and

he and his son moved to Largo, Florida to live with his sister and brother-in-law, both

of whom worked for the Pinellas County Sheriff’s Department. He inquired

regarding a neurologist in Florida and was referred to Dr. Robert Vollbracht, a board

certified neurologist practicing in Clearwater, Florida.

On January 11, 2002, Dr. Vollbracht saw Mr. Freeland for the first time

and found limitation of neck motion; tautness of paraspinal muscles in the base of the

skull; trigger points; tenderness along the trapezius muscle and interscapular area;

tenderness over both occipital nerves at the base of the skull; decreased sensation on

the left hand; weakness in the intrinsic hand muscles; decrease in triceps reflex on the

left side. Dr. Vollbracht’s impressions were cervical strain, thoracic strain, post

traumatic headaches with elements of occipital neuralgia, left hand numbness, ulnar

neuropathy, and post traumatic positional vertigo, all of which he attributed to the

2001 auto accident.

Dr. Vollbracht ordered an MRI scan of the cervical spine which showed

cervical disk protrusion/herniation at the C6-7 level with impingement on the thecal

sack. Because of the hand numbness, he also ordered nerve conduction studies which

indicated a bilateral ulnar neuropathy. Dr. Vollbracht treated Mr. Freeland

conservatively for the first year with anti-inflammatory and pain medication, muscle

relaxers, physical therapy, and exercise. He then began special pain treatments in the

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form of injections, which are ongoing. Dr. Vollbracht assessed Mr. Freeland with an

eleven percent (11%) total body permanent impairment due to the accident in 2001.

During his earlier treatment with Dr. Vollbracht in 2002, Mr. Freeland

received lost wage benefits from Louisiana for about five months. Dr. Vollbracht

restricted him to light duty and told him not to do anything strenuous, with no heavy

lifting and no climbing. Mr. Freeland continued to look for a light duty position in

Florida. Mr. Freeland had learned of a position that appeared to fit the criteria of

light duty as it pertained to physical work, and he applied for the position of Child

Protection Investigator (CPI) with the Pinellas County Sheriff’s Department. A

physical examination was required.

On July 24, 2002, Dr. Edward Kasper, an occupational medicine

physician in Largo, Florida, on behalf of the Pinellas County Sheriff’s Department,

conducted a ten-minute hands-on examination of Mr. Freeland and found him fit for

the CPI position. Dr. Kasper also took into consideration the results of tests

performed by his staff, which included a normal EKG, chest x-ray, a 17.1 percent

body fat assessment, and a successful back screen. Mr. Freeland was also required

to fill out a medical history questionnaire. Therein, he admitted to having an auto

accident on October 31, 2001; he listed all of the injuries associated with the accident;

and, he admitted to having received workers’ compensation benefits for those

injuries. However, fearing that he would not get the much-needed job, Mr. Freeland

did not admit to any ongoing physical problems.

At trial, Mr. Freeland admitted that he had lied by omission on the

questionnaire by not putting a check mark in the column for present problems. He

stated that he did not believe in lying, but he had a son to support, was between a rock

and a hard place, and had to find work. However, Mr. Freeland testified that after he

5

was hired, he did not misrepresent his physical condition when signing up for his

insurance benefits. Therefore, his neck and back injuries were excluded from

coverage, and he could not purchase short term disability insurance. Likewise, he

admitted to the neck, back, hands, and arm injuries with regard to workers’

compensation insurance, and his new employer’s workers’ compensation carrier has

an exclusion for those conditions.

In August 2002, Mr. Freeland was hired for the position of Child

Protection Investigator with the Sheriff’s Department, and he began a training

program. This was his first job since the accident, and it paid significantly less than

his pre-accident employment. The position required conducting interviews, often at

night, taking chronological notes, writing reports, inputting computer data, reading

court documents and prior investigative reports. Mr. Freeland had headaches,

problems with concentration, and numbness in his hands. He testified that six to

eight hours into the work-day his difficulties increased in severity, and he was

working eleven to twelve hours a day. His work product suffered. He was not

getting his investigations and data input done in the time required and without errors,

and there were problems with his handwriting and the legibility of his chronological

notes.

Eventually, Mr. Freeland was told that he was good with children and

was asked to step down to the position of Family Support Worker as of March 2003.

He testified that of the four other people who were in the CPI training program with

him, he was the only one who did not make investigator, even though he had scored

higher than most of the others on the entry exam. Mr. Freeland’s new duties as a

family support worker included coordinating family visits, transporting children to

doctors’ appointments, assisting the investigators in various ways, and filling out a

6

one-page form by putting checkmarks in the appropriate boxes, with next to no

computer input, and very little overtime. Mr. Freeland was able to perform the duties

in this support position, which paid approximately $8,000.00 less annually than the

CPI position.

Subsequently, Mr. Freeland learned of another light duty position with

the Sheriff’s Department with a starting pay similar to the CPI position. He obtained

that position as a corrections officer, or detention deputy (jail guard), by going to the

academy for four months and passing the state exam. By the time he got out of the

academy, he was earning more than the CPI position had paid, but still less than his

pre-accident earnings as a radio engineer. Mr. Freeland testified that the deputy job

is less rewarding, but he is glad to be working. He basically counts dining trays and

logs 72 misdemeanor detainees in and out of their cells. Mr. Freeland was still

employed in that capacity at the time of trial.

In February 2006, the defendants admitted to liability for the accident via

their response to Mr. Freeland’s Motion for Summary Judgment on that issue.

Judgment was rendered accordingly. The case proceeded to trial on the issue of

damages only in March 2006. At the beginning of trial, Bridgefield Casualty

Insurance Company, the workers’ compensation intervenor, appeared, and the parties

stipulated to the $10,746.00 in lost wage benefits received by Mr. Freeland from

November of 2001 to May of 2002, and also stipulated to the $19,586.50 in medical

benefits paid as of February 24, 2006.

The court also heard Mr. Freeland’s Motion In Limine to exclude the

testimony of three representatives of APEX Broadcasting whose names were not

listed timely pursuant to the court’s Pre-Trial Order. The motion was denied, and the

three witnesses were allowed to testify at trial. The jury heard testimony for four

7

days, during which time six depositions were read or shown to the jury in lieu of live

testimony. All medical testimony was by deposition.

The jury received jury charges and instructions on the fifth day and

began deliberations. They were given a verdict form with two questions. The first

question asked, “Did Jerome Freeland sustain injuries as a result of the accident on

October 31, 2001?” If the first question was answered in the affirmative, the jury was

to proceed to the second question which asked the jury to quantify each element of

damages sought by Mr. Freeland and to determine a total award for a judgment in his

favor. During deliberations, the jury sent a note to the trial judge asking the

following: “We would like to know if question #1 on the verdict form means any

injury or just current complaints and conditions.” They received the following

response: “Your question is unclear. You simply must answer question number 1

based on the testimony at trial & my instructions to you.” The jury then returned a

verdict in favor of the defendants by answering question number one on the verdict

form in the negative. Mr. Freeland has appealed the trial judge’s denial of his Motion

in Limine, and the jury’s verdict finding no compensable injuries and awarding no

damages.

III.

LAW AND DISCUSSION

Standard of Review

An appellate court may not set aside a trial court’s findings of fact in

absence of manifest error or unless it is clearly wrong. Stobart v. State, Through

DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two

tiered test must be applied in order to reverse the findings of the trial court: (a) the

appellate court must find from the record that a reasonable factual basis does not exist

8

for the finding of the trial court; and (b) the appellate court must further determine

that the record establishes that the finding is clearly wrong. Mart v. Hill, 505 So.2d

1120 (La.1987). Rather than simply review the record for some evidence which

supports or controverts the trial court’s finding, the reviewing court must review the

record in its entirety to determine whether the trial court’s finding was clearly wrong

or manifestly erroneous. Even if the appellate court feels that its own evaluations are

more reasonable than the factfinder’s, reasonable evaluations of credibility and

reasonable inferences of fact should not be disturbed upon review where conflict

exists in the testimony. Rosell, 549 So.2d 840; Arceneaux v. Domingue, 365 So.2d

1330 (La.1978).

However, where documents or objective evidence so
contradict the witness's story, or the story itself is so
internally inconsistent or implausible on its face, that a
reasonable factfinder would not credit the witness’s story,
the court of appeal may find manifest error or clear
wrongness even in a finding purportedly based upon a
credibility determination. Rosell, 549 So.2d at 844-45.
(Emphasis supplied).

Balanced against these directives is the idea that: “[t]he
principles of appellate review do not require an appellate
court to affirm the trier of fact’s refusal to accept as
credible uncontradicted testimony or greatly preponderant
objectively-corroborated testimony where the record
indicates no sound reason for its rejection and where the
factual finding itself has been reached by overlooking
applicable legal principles. Mart v. Hill, 505 So.2d 1120
(La.1987).”

Butler v. Zapata Haynie Corp., 92-71 (La.App. 3 Cir. 2/23/94),633 So.2d 1274, 1279,

writ granted in part, judgment amended, 94-1171 (La. 7/5/94), 639 So.2d 1186

(reduced loss of earnings award to $150,000.00), cert denied, Zapata Protein (USA),

Inc. v. Butler, 94-616 (U.S. La. 11/28/94), 513 U.S. 1017, 115 S.Ct. 579.

9

Motion in Limine

Prior to trial, Mr. Freeland sought to exclude the testimony of three

witnesses whose names were not timely submitted on the defendants’ witness list

pursuant to the pre-trial order. The trial court denied Mr. Freeland’s motion in limine

on the morning of trial. The trial proceeded immediately afterward, and the witnesses

were subsequently allowed to testify before the jury. Mr. Freeland asserts that the

trial court erred in denying the motion and asks this court to strike the testimony of

the three witness.

In addressing this evidentiary issue, we consider the following pertinent

facts. The trial was set for March 13, 2006. On October 25, 2005, the trial court

issued its Pre-Trial Order instructing the parties to submit their non-expert witness

list six weeks before trial, which was January 30, 2006. The Pre-Trial Order also

called for the inclusion of the witnesses’ addresses and a description of the subject

matter about which they would testify at trial. Mr. Freeland submitted his witness list

with names, addresses, and subject matter, as ordered, on January 30, 2006.

Ernest Bourgeois and the Calcasieu School Board did not submit a

witness list on January 30, 2006. On February 7, 2006, the defendants did file a

witness list, naming for the first time three APEX Broadcasting representatives, Gary

Shannon, Dave Chimeno, and Brian Taylor. The list did not include the addresses of

the witnesses or the subject matter about which they would testify at trial. In

opposition to Mr. Freeland’s motion to exclude the testimony, the defendants argue

that they had submitted two previous witness lists, on September 14, 2005 and on

October 11, 2005, listing generally a “representative of APEX Broadcasting

Company.” They further submit that they informed Mr. Freeland’s counsel on

February 9, 2006, two days after filing the names of the representatives, that these

10

APEX representatives would serve as impeachment witnesses. Defendants argue that

impeachment witnesses do not have to be named in a pre-trial witness list.

The applicable law on this issue is found in our Code of Civil Procedure

and provides as follows:

La.Code Civ.P. art 1551. Pretrial and scheduling
conference; order

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:

....

(7) The identification of witnesses, documents, and
exhibits.

....

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.

C. If a party’s attorney fails to obey a pretrial order, or to
appear at the pretrial and scheduling conference, or is
substantially unprepared to participate in the conference or
fails to participate in good faith, the court, on its own
motion or on the motion of a party, after hearing, may
make such orders as are just, including orders provided in
Article 1471 (2), (3), and (4). In lieu of or in addition to
any other sanction, the court may require the party or the
attorney representing the party or both to pay the
reasonable expenses incurred by noncompliance with this
Paragraph, including attorney fees.

In Waste Management Of Louisiana, LLC v. Tadlock Pipe & Equipment,

Inc., 04-1151 (La.App. 3 Cir. 12/8/04), 889 So.2d 457, writ denied, 05-0014 (La.

3/18/05), 896 So.2d 1005, we articulated the policy considerations regarding the trial

court’s pre-trial order as follows:

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La. C.C.P. art. 1551 gives a court wide discretion to
provide for implementation of a pretrial order and to insure
that the items of the pretrial order are enforced. The theory
inherent in pretrial procedure is the avoidance of surprise
and the allowance of the orderly disposition of the case.
The pretrial order controls the subsequent course of action,
though it can be modified at trial to prevent substantial
injustice. The trier of fact is given broad discretion to
determine whether to modify a pretrial order. This
discretion is controlled by the principle that it must be
exercised to prevent substantial injustice to the parties who
have relied on the pretrial rulings or agreements and
structured the preparation and presentation of their cases
accordingly. Absent an abuse of discretion, the trier of
fact’s decision will be upheld.

Waste Management Of Louisiana, LLC, 889 So.2d at 460 (citations omitted).

In the Waste Management case, the plaintiff sought to call a witness at

trial whose name had not been included on the pre-trial witness list. The trial court

refused to allow the testimony. As in the current litigation, the argument was that the

witness should have been allowed to testify because he was being called as an

impeachment witness. However, upon analysis, a panel of this court determined that

the witness was not an impeachment witness and upheld the trial court’s exclusion

of the testimony, stating as follows:

In its argument to the trial court, Waste Management
called Arabie both as an impeachment and a rebuttal
witness. In its appellate brief, it argues that Arabie is an
impeachment witness, whose testimony was offered to
refute that given by David Tadlock. No matter the type of
witness, we find that the trial court did not abuse its
discretion in refusing his testimony. The proffered
testimony clearly goes to the main issue of whether
Tadlock Pipe was disposing of contaminated waste,
whether it knew that it was disposing of such waste, and
the actions it took to avoid being discovered as the source
of the waste at issue. Thus, we conclude that Waste
Management clearly intended Arabie’s testimony as direct
evidence of the issue being litigated, rather than the
impeachment evidence it claims. Accordingly, we find that
his name should have been included on the pre-trial
witness list and that the trial court did not err in refusing to
allow him to testify at trial.

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Id. at 460.

We reached a similar decision in Offord v. Holloway Const. Co., 567

So.2d 690 (La.App. 3 Cir. 1990), in affirming the trial court’s exclusion of

undisclosed investigative testimony and video surveillance tapes of the plaintiff

proffered by the defendant. There, we held that the tapes were direct evidence of the

plaintiff’s condition purporting to contradict the evidence offered by the plaintiff

regarding his condition. However, since the plaintiff was never asked about the

activities in the tapes, the tapes could not be used to impeach him.

In the present case, Mr. Freeland testified at the very beginning of trial

regarding his military background in communications, his overseas projects and

commendation medals, his active and reserve officer status, his various degrees and

licenses, the accident itself, his injuries and treatment, previous accidents and

treatment, and his pre-accident and post accident salaries and daily living activities.

He also testified regarding his pre-accident job requirements as a radio engineer, the

job requirements in the post-accident positions in Florida, and he admitted to having

lied by omission on the medical questionnaire in order to get the Florida job in 2002.

In discussing his pre-accident employment as a chief radio engineer in

the small markets of Anniston and Lake Charles, Mr. Freeland compared his work

with the work of a chief engineer in the large markets such as Atlanta and New York.

In the larger market there is an engineer for each station, and the chief engineer will

have four or five engineers and a couple of technicians working for him in setting up

remotes and computers and in performing the numerous tasks involved in keeping

a radio station on the air.

In the small markets, however, the chief engineer is often the only

engineer, and he does a little of everything. Mr. Freeland discussed setting up the

13

studios, the transmitters, maintaining the broadcasting equipment, the air

conditioners, the generators at the remote sites, often lifting heavy or cumbersome

equipment, and climbing up in towers to replace cabling or to realign satellite dishes

after a windstorm or heavy rain. He described putting in control panels and getting

assistance putting in a panel board weighing 150 pounds, dismantling transmitters,

replacing heavy tubes, rewiring and replacing commercial CD players, working in

narrow places and in awkward positions, crawling, reaching, and pulling wire. Mr.

Freeland also stated that if there is a tower problem really high up, a tower crew is

brought in for that.

Mr. Freeland’s testimony was supported by the testimony of Tom

Williams, General Operations Manager and Vice President of APEX Broadcasting

in 2001. Mr. Williams stated that Mr. Freeland had to climb towers and that he was

with him when he had to change big tubes by reaching in and literally wrapping his

arms around the tube, bending over, and lifting it out. Mr. Williams stated that he

tried it once, and after grunting and groaning for a while, he gave the task back to Mr.

Freeland. Mr. Williams also stated that Mr. Freeland had to move incredibly heavy

nitrogen bottles, and swap out heavy tubes on a regular basis, so as not to burn up a

$10,000.00 dollar tube. We note from the various medical records that Mr. Freeland

was five feet seven, or seven and a half, inches tall and weighed one hundred forty-

five to one hundred fifty pounds. Mr. Williams described him as a “whirling dervish”

and stated that Mr. Freeland’s nickname in Alabama had been “the flying squirrel.”

Mr. Williams described Mr. Freeland before the accident as

hardworking, loyal, tenacious, and very effective in getting the job done. He

described a particular incident wherein Mr. Freeland was called out after a lightning

strike in the middle of the night and worked on a transmitter for six hours, getting the

14

station back on the air before Mr. Williams knew it was down. Mr. Williams further

stated that just getting to a tower could be difficult, since the towers are often placed

in remote locations. He described an incident in Alabama when he had driven Mr.

Freeland out to a tower in a mountainous location in a rain storm, almost driving the

four-wheel drive vehicle on its side through the rutted roadways. He described the

engineer’s job as strenuous in a small market and said one had to climb, bend, stoop,

crawl, and yank to get at the wires, and basically had to be half squirrel.

Near the end of the trial, the defendants began calling the three

“impeachment” witnesses to provide live testimony. The first was David Chimeno,

the chief engineer at APEX since May of 2002. Therefore, he was hired six months

after Mr. Freeland was terminated. He testified that the chief engineer’s main job is

to maintain the broadcast equipment, computers and amplifiers. He provided

conflicting testimony, stating that the heaviest radio equipment was twenty-five to

thirty pounds. However, at the same time he stated that when an engineer has to

change a plate transformer in a transmitter weighing 800 pounds, the engineer gets

help to do that. Mr. Chimeno further testified that engineers do not climb towers, but

that tower crews perform that duty. He described the work as no more physically

demanding than mowing a yard.

While this testimony conflicts with Mr. Freeland’s testimony in some

cases and agrees in others, it is not impeachment testimony. Mr. Chimeno did not

work with Mr. Freeland at APEX in Lake Charles/Westlake/Jennings, or in Anniston

or Atlanta. He cannot impeach Mr. Freeland’s testimony regarding what Mr.

Freeland did as a chief engineer because he was not there. On cross-examination, Mr.

Chimeno admitted that the APEX facility no longer functions as it did when Mr.

Freeland and Mr. Williams were on board, in that it is now used as a transmitter site

15

and storage facility. Clearly, the character of the APEX operations were in flux and

transition in 2001 and thereafter. Mr. Chimeno’s experiences in 2002 are different

from Mr. Freeland’s, but his testimony does not serve to impeach Mr. Freeland’s

testimony.

The next “impeachment” witness called by the defense was Gary

Shannon. He had been a program director at one of the local radio stations owned by

APEX since around 2002. However, he had been employed at other APEX stations

in some capacity since the late 1990's. Therefore he knew Mr. Freeland. Even

though he was not an engineer, Mr. Shannon testified that an engineer’s work was not

physically demanding and did not require climbing. He testified that Mr. Freeland

did not do the tasks on his list of needs, and could not even fix the light on the

telephone. Even though Mr. Freeland only worked a day and a half after the accident,

and was in Jennings on both days, Mr. Shannon stated that he did not see signs of

injury in Mr. Freeland after his accident.

On cross-examination, Mr. Shannon admitted that Tom Williams was the

General Manager, the person in charge of the whole operation and to whom everyone

answered. With regard to his “list” of tasks, Mr. Shannon admitted that if Mr.

Freeland was responding to a greater authority than himself, such as Mr. Williams,

he could not speak to that. When shown exhibits depicting various components of

radio broadcasting equipment, including a control board weighing 158 pounds, an

audio board weighing 46 pounds, an “Omnia” weighing 32 pounds, a digital user

interface weighing 100 pounds, a tube weighing 45 pounds, he replied, “I really am

just an on-air person. I have - - know nothing about the technical end of radio when

it comes to fixing things. . . .”

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Again, this live testimony at the end of trial was not impeachment

testimony. Mr. Freeland never said that he moped or limped around at work the day

and a half he was there after the accident. In fact, there had been much earlier

testimony regarding Mr. Freeland’s military training, posture, demeanor, and stoic

nature, even when working in pain, by people who spent time with him on a regular

basis. One witness who worked with Mr. Freeland on a daily basis in Florida after

the accident testified that she knew that Mr. Freeland was in pain at work, not

because he complained or looked tired, but because he became even more rigid in his

posture. Again, the testimony of Gary Shannon did not impeach the testimony of Mr.

Freeland because Gary Shannon was not an engineer who worked alongside Mr.

Freeland and because Mr. Freeland did not complain about his injury in the

workplace.

The last witness to testify at trial was Brian Taylor, the current

Operations Manager at APEX Broadcasting. He had supervised Mr. Freeland for two

or three months in 2001. He testified that engineers did not have to lift over 15-20

pounds on a regular basis. He stated that in his career in radio he had seen a “good

bit” of what chief engineers do, but that he “mostly kind of put together a list” of

repair needs and things to “make our job easier.” Brian Taylor testified that he was

having trouble getting the things on his list done and, therefore, had something to do

with Mr. Freeland’s termination.

However, on cross-examination, Taylor admitted that Mr. Freeland

regularly had to go out to transmitter units to change out, replace, or rotate the big

4CM 400 tubes and other tubes. Taylor admitted that he had never changed a tube

himself but had “assisted” other engineers by watching at late hours to make sure that

no one got injured. He further admitted that the engineer he watched had to use both

17

hands and pull and yank in order to lift and remove the tube. Taylor admitted to

having no training or licensing, himself, as a radio engineer. Taylor further stated

that he and Mr. Freeland both answered to Tom Williams. After Mr. Freeland and

Tom Williams left APEX Broadcasting, and Mr. Freeland applied for the first job in

Florida, Taylor admitted to providing a written job recommendation report on Mr.

Freeland to the Pinellas County Sheriff’s Department. Therein, he reported that Mr.

Freeland was dependable and honest. He further answered the question regarding

reasons why this person would not be a suitable employee as “none.”

Earlier in the trial, the jury had been read the deposition testimony of the

head man at APEX, Tom Williams, regarding the “divided-house” work dynamic that

existed at APEX in 2001. Mr. Williams explained that, as General Operations

Manager and Vice President, he worked on a daily basis with the son of the owner of

the broadcasting company. He testified that the son and the father promoted different

issues, and while Mr. Williams was fulfilling the wishes of the son, the father wanted

different things done. The father sent in Brian Taylor from the company’s

Mississippi operation. Mr. Williams said that he did not think there was any “love

lost right out of the box.”

Mr. Williams testified that Jay Freeland could work with anyone, and

could have worked with Taylor, if Taylor had been hired by Mr. Williams, instead of

being sent in by the owner. Mr. Williams further stated that Jay Freeland’s response

at being terminated without reason or explanation was simply, “Well, sir, yes, sir.”

No questions asked. He stated that with Mr. Freeland’s military background, he

would have recognized that the work they were doing for the father differed greatly

from the work they were doing for the son. Mr. Williams further testified that when

he terminated Jay Freeland, pursuant to the decision by the owner, Mr. Williams saw

18

“the handwriting on the wall” and knew that he, himself, would be next. Mr.

Williams specifically stated that Mr. Freeland was not fired for cause, and that Mr.

Williams himself was not given a reason when instructed to terminate Mr. Freeland.

He further testified that Mr. Freeland received severance pay at termination.

Accordingly, while the testimony of Brian Taylor conflicted with the

testimony of Mr. Freeland and Mr. Williams regarding whether the position of radio

engineer in a small market is light duty, as the defense claims, or medium duty, or

heavy duty, it did not impeach prior testimony regarding what Mr. Freeland, himself,

had done as a chief radio engineer in his own experience. In fact, Taylor admitted

that he had seen engineers pull and yank on heavy equipment and tubes, which was

consistent with the testimony of Mr. Freeland and Mr. Williams. In addition to

conflicting, but not impeaching, some prior testimony regarding the physical aspects

of Mr. Freeland’s work, Taylor’s testimony implied that Mr. Freeland was terminated

for cause, which he was not, and further implied that his failure to return to his prior

earning capacity as a radio engineer was due to his engineering ability, rather than his

injuries from the accident.

The testimony of Chimeno, Shannon, and Taylor would have been

admissible as conflicting evidence of the physical work performed by radio engineers.

Their testimony would also have been admissible as direct evidence for the jury to

consider in differentiating between the loss of work due to injury and the loss of work

due to termination. However, Mr. Freeland testified that he did not know why he was

terminated. Therefore, the APEX testimony was not impeachment testimony. Mr.

Freeland testified that, at first, he was not given a reason for the termination.

Subsequently, he was told that it was budget cuts. At times, he thought it must have

had to do with the accident. When the form from APEX came to Florida indicating

19

“inability” to do the job, Mr. Freeland testified that he thought it was because of the

accident, because he had never had trouble doing the job before. Moreover, APEX

was paying his medical bills and lost wage compensation due to the accident.

Because the testimony of the three APEX witnesses was direct rather

than impeachment testimony, their names and addresses, and the subject matter of

their testimony should have been timely submitted on January 30, 2006, so that Mr.

Freeland’s counsel could depose them and more fully prepare his cross-examination

of them at trial. Having said that, however, while we believe that the preferable

procedure would have been to disallow the testimony as violative of the trial court’s

pre-trial order, we cannot say that the trial court committed a gross abuse of discretion

warranting a reversal. “The judge's discretion includes the admissibility of a

witness’s testimony. It is only upon a showing of a gross abuse of discretion that

appellate courts have intervened.” Waste Management Of Louisiana, LLC, 889 So.2d

at 460 (citations omitted). Additionally, our courts have held:

If a party objects to the offered testimony of a witness not
listed on the pre-trial order, a trial judge has great
discretion in deciding whether to receive or refuse the
testimony objected to on the grounds of failure to abide by
the rules, but any doubt must be resolved in favor of
receiving the information. Abdon Callais Boat Rentals,
Inc. v. Louisiana Power and Light Co., 555 So.2d 568, 576
(La.App. 1st Cir. 1989), writ denied, 558 So.2d 583
(La.1990); Curry v. Johnson, 590 So.2d 1213, 1216
(La.App. 1st Cir. 1991).

Palace Properties, L.L.C. v. Sizeler Hammond Square Ltd. Partnership, 01-2812

(La.App. 1 Cir. 12/30/02), 839 So.2d 82, 91, writ denied, 03-0306 (La. 4/14/03), 840

So.2d 1219.

In the present case, the trial judge must have had doubts regarding the

admissibility of the witnesses whose specific names were added to the defendants’

witness list late, in this case, five, rather than six, weeks before trial. As the

20

defendants argue, the record does contain two previous witness lists, filed months

before trial, wherein the defendants list a “representative of APEX Broadcasting.”

Apparently, the trial judge thought that justice would not be served if a current

APEX representative was not allowed to testify. Moreover, counsel for Mr. Freeland

indicated that, while he was not able to depose these three witnesses, he was able to

speak to them prior to trial. Therefore, there was no egregious element of surprise at

the last minute, and we note that counsel for Mr. Freeland did perform an effective

cross-examination of these witnesses. Accordingly, we will not reverse the trial court

on this procedural issue.

Injuries

Mr. Freeland argues that the jury was clearly wrong in finding that he

was not injured in the auto accident on October 31, 2001, and in failing to award

damages for his injuries. We agree. The defendant, Mr. Bourgeois, driving his

employer’s heavy work-truck, ran a stop sign at 45 miles per hour and broadsided Mr.

Freeland’s van, knocking the van ten feet in an almost perpendicular direction from

the direction in which Mr. Freeland was traveling. Both vehicles were totaled as a

result of the accident. Mr. Freeland’s head and body were thrown into the driver-side

window and door hard enough to knock the glasses off of his face. He sustained cuts

to his head, face and hands. An ambulance was called to the scene. The emergency

team reported that there was blood and abrasion on the back of Mr. Freeland’s head.

They removed pieces of glass from his head and face, and tended to cuts on his hands.

Mr. Freeland was shaken up but could walk. He began to have headaches and

increasing soreness and stiffness in his neck, shoulder and back, and self-treated with

Ibuprofen, wraps, and topical analgesics. He also developed blurred vision,

dizziness, elbow pain and numbness in his hands.

21

On November 27, 2001, within weeks of the accident, Mr. Freeland went

to his former chiropractor in Anniston, Alabama, Dr. David Wade. Dr. Wade

examined Mr. Freeland and found tenderness and restricted motion in the neck and

mid and low back. He performed cervical x-rays and found a reversal of the cervical

or lordotic curve. He found stair-stepping in the lateral curve, indicating ligament

damage resulting from the neck’s side-to-side lateral flexion and extension when Mr.

Freeland’s vehicle was impacted from the side. Dr. Wade also found compression of

the Luschka joint at the superior border of C6. He explained that the Luschka joint

is a little rim of bone that acts as a lateral stabilizer in the cervical spine and that it

had been knocked off. Dr. Wade stated that it usually takes some kind of traumatic

force to do that. Mr. Freeland also had bilateral elbow pain and numbness in his

hands. Dr. Wade diagnosed cervical and thoracic strain and sprain, cervical

subluxation, vertigo and blurred vision, and related Mr. Freeland’s problems in

November 2001 to the auto accident on October 31, 2001.

Dr. Wade treated Mr. Freeland from November 27, 2001 through

December 10, 2001 with intersegmental traction, electrical stimulation, manual

therapies, ice for swelling, and therapeutic exercises for his balance problems. Dr.

Wade learned that Mr. Freeland was going to relocate to Florida and instructed him

to consult a neurologist there because of the ongoing dizziness and vertigo.

On January 11, 2002, Mr. Freeland began treating with Dr. Robert

Vollbracht, a board-certified neurologist. Upon examination, Dr. Vollbracht found

mild to moderate limitation of neck motion on lateral rotation and extension;

paraspinal muscles in the base of the skull were taut; trigger points; areas of focal

tenderness along the trapezius muscle and interscapular area between the shoulder

blades; tenderness over both occipital nerves at the base of the skull; decreased pin-

22

prick to sensation on the left hand at fourth and fifth fingers; component of weakness

in the intrinsic hand muscles; question of slight decrease in triceps reflex on the left

side. Dr. Vollbracht’s impressions were cervical strain, thoracic strain, post traumatic

headaches with elements of occipital neuralgia, left hand numbness, ulnar neuropathy,

and post traumatic positional vertigo, all of which he attributed to the October 2001

auto accident.

As a result of these objective findings upon examination, Dr. Vollbracht

ordered an MRI scan of the cervical spine and ordered nerve conduction studies

because of the hand numbness. He also gave Mr. Freeland exercises for the vertigo,

stretching exercises for the neck and shoulder, and prescribed anti-inflammatory

medication. The MRI results showed cervical disk protrusion/herniation at the C6-7

level with impingement on the thecal sack surrounding the spinal cord. Additionally,

the results of the nerve conduction studies were abnormal, showing a slowing of the

ulnar nerve as it goes across the elbow, on both elbows, indicating a bilateral ulnar

neuropathy. Dr. Vollbracht treated Mr. Freeland conservatively throughout 2002

with anti-inflammatory and pain medication, muscle relaxer medication, physical

therapy sessions, and a program of exercise.

However, Mr. Freeland failed to respond to the conservative treatments.

Noting the ongoing areas of tightness in his neck, and his abnormal neck posture, Dr.

Vollbracht recommended a series of Botox injections, a recognized treatment used

to relax muscles and relieve pain. Dr. Vollbracht explained the genesis of Botox,

stating that it had come out twenty years ago for various neurological conditions

called spacicity. It has been used for the treatment of children with cerebral palsy,

stroke victims, and for those like Mr. Freeland, suffering from torticollis, which is an

abnormal neck position wherein the head favors one side due to hyperactive muscles.

23

It is also used for a variety of headache problems. Dr. Vollbracht has been very

active in the field and has recently been selected as one of one hundred physicians

nationwide to train other physicians in the use of Botox for the treatment of pain.

Dr. Vollbracht further explained how the chemical works on the

microscopic space between the nerve and the muscle: The nerve has a

neurotransmitter called acetylcholine. When the nerve is stimulated, it releases the

acetylcholine, which goes over, hits the muscle and makes the muscle contract. The

Botox is injected into the muscle. In Mr. Freeland’s case, it was injected into various

muscles in his neck and back, and it is absorbed by the nerve endings. It basically

blocks the receptor protein that is needed to release the acetylcholine, so the nerve

cannot release the neurotransmitter, and certain muscles are prevented from

contracting. It, therefore, blocks pain impulses and inhibits the pain response. In

brief, the process, also called chemo-denervation, blocks the receptors, and the nerve

does not fire.

The injections have been successful in decreasing spasm and improving

neck posture for Mr. Freeland, and they allow him to function better and to perform

the activities of daily living with less pain and less medication. He has experienced

improvement in his neck, back, and shoulder, and has had a lessening of his

headaches. However, he has pain every day, and states that he starts each day at a

pain level of “2” instead of “0.” Moreover, the Botox takes seven to fourteen days

to take effect, and it wears off after three months because the nerve basically repairs

itself. Mr. Freeland began receiving the injections in January of 2003, and it is

anticipated that he will continue to need them indefinitely. Once the effect of the

Botox starts to wear off, Mr. Freeland goes back to pain medication until the next

injection, and has success alternating between the two. At the time of Dr.

24

Vollbracht’s deposition in February 2006, the last documented injection was

December 22, 2005.

In spite of the improvements with the Botox treatments, Mr. Freeland

still had difficulty driving, climbing, and lifting and had ongoing problems with

numbness and tingling in the arm and hands. At one point in his ongoing treatment,

Dr. Vollbracht anticipated that Mr. Freeland would need ulnar nerve surgery within

five years. However, he has withdrawn that assessment and not included a surgery

cost in his estimate of future medical costs. Dr. Vollbracht has assessed Mr. Freeland

with an eleven percent (11%) total body permanent impairment due to the accident

in 2001, with 4% attributed to the neck, 2% attributed to the thoracic region, 2% to

the occipital nerves, and 3% to the ulnar nerves in his hands.

To counter these overwhelming objective findings of injury by Mr.

Freeland’s treating neurologist, Dr. Vollbracht, and his treating chiropractor, Dr.

Wade, the defendants introduced the deposition testimony of Dr. Edward Kasper, the

occupational medicine physician who examined Mr. Freeland in connection with his

job application with the Pinellas County Sheriff’s Department in Florida. Dr. Kasper

testified that he had spent about ten minutes with Mr. Freeland, and he found no

spasm. Mr. Freeland’s EKG results were good, his chest x-ray was normal, body fat

was only 17.1 percent, and he qualified according to the back screen administered by

Dr. Kasper’s staff. Accordingly, Dr. Kasper found Mr. Freeland fit for the

investigative position that he sought.

Dr. Kasper did not have Mr. Freeland’s cervical x-rays from Dr. Wade

or the MRI and conduction studies performed by Dr. Vollbracht. Dr. Kasper spent

only ten to fifteen minutes with Mr. Freeland, who has admitted that he desperately

needed the job and, therefore, denied ongoing physical problems. At the time of the

25

July 24, 2002 physical with Dr. Kasper, Mr. Freeland had been under the care of Dr.

Vollbracht, a board-certified neurologist, for almost seven months. He was

benefitting somewhat from muscle relaxers, pain medication, and physical therapy,

and he was completely focused on passing the physical. In fact, Mr. Freeland

apparently managed to lift fifty pounds on the day of the physical. However, this by

no means indicates that he could lift that kind of weight on a regular basis, nor the toll

the exertion may have taken that day.

Mr. Freeland testified that when he overexerted himself while doing

household tasks, he suffered setbacks, and he had learned to pace himself. In

evaluating the evidence of a ten-minute exam with Dr. Kasper, a non-board-certified

occupational medicine physician, whose only job was to qualify Mr. Freeland for

employment, and the evidence of Mr. Freeland’s neurologist, who had been treating

him for seven months, the jury should have given more weight to Dr. Vollbracht’s

findings.

This is particularly true in light of the testimony regarding Mr.

Freeland’s stoic nature and his habits in all things related to work. More specifically,

Mr. Freeland was not a complainer. Dr. Vollbracht testified that Jay Freeland was a

relatively quiet person and that he had to draw things out of him. Jeff Peterson, the

occupational rehabilitation specialist, testified that Jay Freeland, like other of his

clients with military backgrounds, as well as people working in law enforcement, did

not whine and complain, as complaints are not looked upon favorably in those

occupations. Patricia Smart Flemming, senior office specialist with the CPI division

of the Pinellas County Sheriff’s Department, testified that she had learned about Mr.

Freeland’s physical condition a little bit at a time, as he never talked about it. She

26

stated that Mr. Freeland was a “stoic army type,” “very erect,” but even stiffer when

in pain.

Tom Williams, who knew Mr. Freeland since 1992, observed definite

changes in Mr. Freeland’s behavior after he left Louisiana. Mr. Williams testified

that Mr. Freeland was a “whirling dervish,” and while working in Anniston before the

accident, his nickname was “the flying squirrel.” After the accident, while Mr.

Williams only worked with Mr. Freeland for a day and a half, during which time Mr.

Williams basically drove Mr. Freeland around, they associated as friends on several

occasions. Mr. Williams testified that away from work, when it came to helping him

move out of his house, he only assigned Mr. Freeland the job of driving, and he hired

a crew to do the lifting that he and Mr. Freeland had done when Mr. Williams moved

into his house.

Mr. Williams further testified that after he moved back to Alabama and

became a co-owner in his own small broadcasting company, Mr. Freeland came to

visit and assisted him somewhat in mending fences and cleaning up after hurricane

Ivan. However, Mr. Freeland was not himself. Mr. Williams noticed that Mr.

Freeland was moving slowly going up steps, and he complained of back and neck

pain. Mr. Williams stated that there were major changes in Mr. Freeland’s activity

level. Where Mr. Freeland would usually jump right into work, such as cleaning up

debris, he and Mr. Freeland had basically switched roles, in that Mr. Williams did the

physical labor of moving debris, while Mr. Freeland drove the vehicle. Mr. Williams

also testified that Mr. Freeland appeared to be using a lot of medication at that time.

The last testimony presented to the jury was the deposition testimony of

Dr. Robert Martinez, a board-certified neurologist who examined Mr. Freeland on

behalf of the defendants on January 11, 2006, exactly four years after Mr. Freeland’s

27

first examination by his treating neurologist, Dr. Robert Vollbracht. At the time of

the examination by Dr. Martinez, Mr. Freeland had been treating with Dr. Vollbracht

continuously for four years and had recently received an injection of Botox into the

muscles of his neck and back on December 22, 2005. Dr. Martinez stated that he

spent two and one half hours examining Mr. Freeland, reviewing about three inches

of medical records from Dr. Wade and Dr. Vollbracht, and dictating an eight page

report. Mr. Freeland testified that Dr. Martinez actually spent twenty minutes

examining him and talking to him.

Dr. Martinez testified that Mr. Freeland reported a pain level of three on

the day of the exam. Dr. Martinez reported that, upon examination, he found no

spasm of the neck or thoracic region and a normal range of motion for a forty-seven

year-old patient. He found no impairment and no restrictions on the kind of work that

Mr. Freeland could do. However, on cross-examination, Dr. Martinez stated that he

did not order x-rays or MRI scans and admitted that the people who employed him

did not send Mr. Freeland’s x-rays from Dr. Wade, nor did he have the MRI scan and

nerve conduction study from Dr. Vollbracht. Despite the absence of these diagnostic

materials, Dr. Martinez testified that, “His bones of the neck were in the middle where

they should be . . . .,” and there was no fracture of the Luschka joint or inflamation

of the ulnar nerves.

Dr. Martinez also testified that the injuries complained of after the

accident were the same problems that Mr. Freeland was being treated for by Dr. Wade

prior to the accident. More specifically, Mr. Freeland had received adjustments and

treatments from Dr. Wade in Anniston, Alabama for a number of years. However, the

last time he had seen Dr. Wade before the October 31, 2001 accident was a year and

a half earlier on May 1, 2000. The record reveals that Dr. Wade had been a radio

28

client of Mr. Freeland’s employer in Anniston with an on-air wellness program

advocating the benefits of regular adjustments and chiropractic care.

Mr. Freeland was an avid runner and took advantage of an offering by

Dr. Wade of a wellness package which included regular adjustments for

approximately $33.00 per month. He compared the wellness visits with Dr. Wade to

spa treatments and saw him for five years, from 1995 to May of 2000 for tight

muscles and spasm due to painting and carpentry and other work on his house and

rental properties. Therefore, Dr. Wade’s records contained numerous notes regarding

either neck, shoulder, or back pain, spasm, soreness and stiffness, as well as one

complaint of arms and hands locking up from overuse. Dr. Wade’s notes also

contained a description of disk involvement in August 1995. However, Dr. Wade

explained that this was evident because Mr. Freeland was walking crooked, twisting

his pelvis due to lower back pain, which was his main complaint in 1995.

During Dr. Wade’s deposition, counsel for the defendants read each visit

aloud for confirmation by Dr. Wade. Every adjustment was accompanied by a

complaint. Therefore, when Dr. Wade’s deposition was read to the jury members,

they heard evidence of the visit in August 1995 and a litany of thirty-eight individual

wellness visits between January of 1997 and May 1, 2000, each one including

complaints of neck, shoulder or mid or upper back pain from overuse. There was also

one complaint in December of 1997 of pain and numbness in the right arm, one in

December of 1998, and one in January of 1999 regarding numbness in the arms and

hands with tingling in the right hand. At the end of 1998, a few of the visits were

associated with an October incident wherein Mr. Freeland ran off the road in his

vehicle to avoid a deer. However, Dr. Wade stated that those visits were just for

stiffness and soreness and that there was no diagnosis of sprain. The wellness visits

29

decreased to eight in 1999 and to only two visits in 2000. The last visit to Dr. Wade

was on May 1, 2000, with complaints of neck and mid-back pain due to painting.

When asked to explain the difference between the visits up to May of

2000 and the post-accident visits in November and early December of 2001, Dr.

Wade stated that the difference was in the magnitude of the symptoms, the severity

of the complaints, the swelling, and the restricted range of motion. Dr. Wade

explained that he had 1992 x-rays of Mr. Freeland on file, and that prior to the

October 2001 accident, there was no x-ray finding of a reversal of the lordotic curve,

no stair-stepping indicating ligament damage, no Luschka joint compression, and no

diagnosis of vertigo, cervical and thoracic sprain and cervical subluxation, all of

which he found consistent with the trauma from the impact of the 2001 collision.

Therefore, the jury should have taken this testimony of Mr. Freeland’s treating

chiropractor in consideration when evaluating the comments of Dr. Martinez,

particularly in light of Dr. Martinez’ testimony on cross-examination.

More specifically, Dr. Martinez reported that there was no head injury,

even though the medical records had documentation of a head injury in at least three

places. Dr. Martinez offered no explanation, except that he did not ask Mr. Freeland

about a head injury. While he testified on direct examination that he saw no evidence

of chipping at the Luschka joint, he admitted on cross-examination that if there had

been a fracture or chipping of any bone in the 2001 accident, it would have healed by

2006. Moreover, Dr. Martinez further admitted that when a patient is receiving

ongoing medical treatment, a physician may well find a lack of spasm and lack of

limitation on the patient’s range of motion. In the present case, Mr. Freeland had

received Botox injections by Dr. Vollbracht on December 22, 2005, twenty days

before his examination by Dr. Martinez on January 11, 2006. The chemical takes ten

30

to fourteen days to begin relaxing the muscles and inhibiting the pain response, and

works for approximately three months. Therefore, Mr. Freeland was receiving the

maximum benefit from the injections by Dr. Vollbracht at the time of the examination

by Dr. Martinez.

It has long been held that, in general, the observations and opinions of

the treating physician are to be accorded greater weight than those of a physician who

has only seen the party for purposes of rendering an expert opinion concerning the

party’s condition. “However, the treating physician’s testimony is not irrebuttable,

as the trier of fact is required to weigh the testimony of all of the medical witnesses.”

Freeman v. Rew, 557 So.2d 748, 751 (La.App. 2nd Cir. 1990) (citations omitted), writ

denied, 563 So.2d 1154 (La. 6/01/90). Ultimately, “the weight afforded a treating

physician’s testimony is largely dependent upon the physician's qualifications and the

facts upon which his opinion is based.” Id. “Thus, reduced to its essentials, the

inquiry is whether, based on the totality of the record, the jury was manifestly

erroneous in accepting the expert testimony presented by defendants over that

presented by plaintiff.” Miller v. Clout, 2003-0091, fn.3 (La. 10/21/03), 857 So.2d

458, 463.

Based upon the testimony in the present case, the jury should have given

more weight to the cumulative evidence in the x-rays and findings of Dr. Wade, who

treated Mr. Freeland before and after the accident, and to the MRI scan and nerve

conduction studies of Dr. Vollbracht, who had been treating Mr. Freeland from

January 2002 until the time of trial in 2006. To rely instead upon the findings of a

physician who spent twenty minutes with Mr. Freeland in 2006, over four years after

the accident in 2001, and who did not take or consult existing x-rays, MRI and nerve

conduction studies, and to come to the conclusion that no compensable injury had

31

occurred in light of the description of the accident, itself, and the totality of the

evidence, was clearly wrong. We can only surmise that there was jury confusion,

which is evident in the note sent to the judge during deliberations, asking for

clarification between an award for any injury and an award for current complaints.

In response to their query, the jury was then instructed by the trial judge

to consider the testimony and evidence and the jury instructions that he had given

them, which were available for review. Those instructions included the applicable

legal principle that a defendant who causes harm to a plaintiff must take the plaintiff

as he is, even if his injuries are more serious by reason of a pre-existing condition.

The instruction further provided that if the accident results in aggravation of a pre-

existing condition of pain or disability, the one responsible is liable both for the

aggravation of the pre-existing condition and for any new injuries resulting from the

accident. Therefore, given this legal precept and the greatly preponderant

objectively-corroborated evidence, including the x-rays, MRI, and nerve conduction

studies, a reasonable jury would have found that Mr. Freeland suffered new injuries

and possibly some aggravation of a pre-disposition to muscle stiffness. However, the

evidence was clear that Mr. Freeland was a very active person before the accident,

and the jury should have been able to differentiate between soreness from overuse and

trauma induced sprain and disk herniation.

There was overwhelming testimony that Mr. Freeland was fit and

functioning very well physically before the accident, working at a strenuous job as

a radio engineer, and doing the labor of maintaining various properties. Prior to the

accident, he had not been to a medical doctor in many years. There was absolutely

no evidence or testimony by a family doctor or treatment for even a cold, although

Mr. Freeland did have an opthamologist. There was further mention of a couple of

32

minor bumps in the 1990s, including a three car pile-up, in which Mr. Freeland was

the last car to stop, and in which he suffered no injuries. There were no medical

reports associated with those minor accidents. In fact, the record contains a

Department of the Army Certificate of Achievement awarded to Major Jerome T.

Freeland on November 17, 1996, which states as follows:

FOR SUPERIOR PERFORMANCE ON THE ARMY
PHYSICAL FITNESS TEST THAT WAS CONDUCTED
ON 19 OCTOBER 1996. YOUR ACHIEVEMENT OF A
SCORE OF 292 IS A SIGNIFICANT ONE. THIS
ACHIEVEMENT REFLECTS GREAT CREDIT UPON
YOU, THE 1ST SIMULATION EXERCISE GROUPT, 1ST
BRIGADE, 87TH DIVISION (EXERCISE), AND YOUR
PROFESSIONALISM AS A SOLDIER.

Further, Mr. Freeland had stopped going to the chiropractor for wellness

adjustments on May 1, 2000, over a year and a half before the accident on October

31, 2001. There was absolutely no evidence of an intervening accident in the weeks

between the auto collision and Mr. Freeland’s examinations by Dr. Wade and Dr.

Vollbracht, and their respective x-rays, MRI ,and nerve conduction studies. After the

accident, Mr. Freeland had an eleven percent (11%) impairment and was relegated to

light duty work. Accordingly, having determined that Mr. Freeland sustained

compensable injuries in the accident of October 31, 2001, we now turn to the issue

of damages.

Damages

Dr. Vollbracht diagnosed cervical disc protrusion/herniation at C6-7 with

impingement on the thecal sac, cervical strain, thoracic strain, post traumatic

headaches and bilateral occipital neuralgia, post traumatic positional vertigo, then

post traumatic dizziness, and bilateral ulnar neuropathy, and assessed him with an

eleven percent (11%) permanent impairment. He treated Mr. Freeland conservatively

33

without much success for a year before beginning the Botox injections, which finally

brought Mr. Freeland measurable relief. It is anticipated that Mr. Freeland will need

the injections indefinitely. Dr. Vollbracht further testified that Mr. Freeland’s injuries

have a future effect in their propensity to speed up and increase the severity of

degenerative changes in Mr. Freeland’s physical condition.

Mr. Freeland testified that prior to the accident, in addition to working

in a field that he really enjoyed, he was much more physically active. He ran, played

golf, exercised more, worked out with weights, played racquetball and basketball with

his son, spent more time on the computer, and did more domestic maintenance in his

leisure time. He stated that he can no longer repair jewelry as a hobby, that he has

headaches and problems with concentration and focus, and can no longer read the

schematics for detail work in cabinetry, even though no claim is being made for the

earlier complaints of problems with his eyes.

Since the jury failed to award any damages, we are not bound to

determine the highest or lowest point at which damages are reasonable. Instead, we

award appropriate damages based on a de novo review. LeBlanc v. Stevenson, 00-157

(La. 10/17/00), 770 So.2d 766. The record in this case supports a general damage

award of $50,000.00.

With regard to past medical expenses, Dr. Vollbracht testified that his

medical charges at the time of his deposition were $20,352.40. Dr. Wade testified

that his charges were $1,260.00. Accordingly, we will award past medical expenses

of $21,612.40. With regard to future medical expenses, Dr. Vollbracht testified that

Mr. Freeland would continue to require future Botox injections at an estimated cost

of $5,400.00 to $8,000.00 per year for an indefinite period, possibly for the remainder

of his life. The Social Security Life Expectancy Tables in the record indicate that, at

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48 years of age at the time of trial, Mr. Freeland’s life expectancy was 29.56 years,

and his work life expectancy was 16 ½ years. Accordingly, Mr. Freeland seeks future

medical expenses for the Botox injections at $5,800.00 per year for a period

somewhere between his work like expectancy, which would total $98,600.00, and his

full life expectancy, which would total $171,000.00. We find an award of $98,600.00

supported by the record and reasonable under the circumstances.

We now turn to the damage element of loss of future earning capacity

which refers to one’s potential earning capacity. Batiste v. New Hampshire Ins. Co.,

94-1467 (La.App. 3 Cir. 5/3/95), 657 So.2d 168. While “[t]he very nature of lost

earning capacity makes it impossible to measure the loss with any type of

mathematical certainty.” Finnie v. Vallee, 92-2122 (La.App. 4 Cir. 1993), 620 So.2d

897, 901, a plaintiff need only to reasonably establish his claim.

Jeff Peterson, the only occupational rehabilitation specialist who testified

at trial, stated that according to his research in the Occupational Outlook Handbook

and other manuals, his review of the medical records, and his interviews with Mr.

Freeland and Tom Williams regarding the actual duties that Mr. Freeland performed

as a radio engineer, that Mr. Freeland could not return to the work that he did before

the accident. He testified that in small radio markets, the chief engineering job

description entails medium to heavy duty labor because of the tasks involved and the

frequency of lifting, carrying, bending and stooping. This is consistent with Tom

Williams’ testimony that Mr. Freeland could not change the tubes in an FM

transmitter with a bad back or neck, describing them as having been “designed by the

Marquis de Sade.” He further stated that Mr. Freeland could not be part of a group

unloading 700-800 pound satellite dishes after the accident.

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Mr. Peterson’s testimony indicates that while the position of chief

engineer in the large markets may be described as lighter duty because it is more

managerial and administrative, and because the chief engineer has other engineers

and technicians to assist him, Mr. Freeland would basically have to start over with the

heavy duty work and work his way up, as with all jobs. He stated that nothing in Mr.

Freeland’s work history indicates that he ever sat behind a desk in the radio field. Mr.

Peterson stated that radio technicians earn between $28,000.00 and $80,000.00

annually; therefore, where Mr. Freeland’s income had been between $45,000.00 to

$56,000.00 prior to the accident, the most realistic comparison between his earning

capacity is the difference between his pre-accident earnings and his $38,000.00 salary

as a detention officer, which is consistent with the testimony of the economic expert,

Dr. Michael Kurth.

The record contains overwhelming evidence of Mr. Freeland’s

experience and education, and his ability to have continued in radio broadcast

engineering, were it not for the accident on October 31, 2001. Already interested in

radio broadcast engineering at the age of seventeen, Mr. Freeland attended the Radio

Electronics Institute in Sarasota, Florida. He earned his third class, then second class,

then first class radio/telephone license, with radar endorsement from the FCC. He

worked his way through college customizing vans with video and sound systems, was

active in the ROTC, and graduated from the University of South Florida in 1980 with

a Bachelors degree in International Relations. Upon graduation, he was

commissioned as a second lieutenant in the Army and served on active duty for six

years, working in communications and attaining the rank of captain. In 1986, he went

into the reserves, basically in acquiescence to his wife’s wishes, and was called back

to active duty a few times as a special projects officer.

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While stationed in Germany from 1980 to 1982, he worked in the

communications-electronics systems division. On his own initiative, he developed

a direct exchange program for missile equipment, which saved the Army millions of

dollars, and which became implemented worldwide. This initiative earned him his

first Army Commendation Medal on June 8, 1982, as a First Lieutenant, within two

years of graduating from college, “for exceptionally meritorious achievement in

successive positions as a logistical staff officer.” The award further states that “his

efforts were directly responsible for identification of numerous areas for improved

logistical support to the theater” and cites him for his “dedication, motivation,

initiative, and outstanding performance of duty.”

Mr. Freeland received another Army Commendation Medal for

developing a plan to train high level staff on computer war games, for which he

conducted briefings in Washington, D.C. and at the Pentagon, resulting in multiple

nationwide training divisions. He was sent to El Salvador to put together a satellite

communications program and received The Army Commendation Medal for that

project as a Major on September 30, 1994. The record contains several certificates

evidencing at least four of Mr. Freeland’s Army Commendation Medals, as well as

various Certificates of Achievement while in the active army and in the reserves

dating up to 1996. Mr. Freeland testified that he thinks he received nine Army

Commendation Medals, as well as other medals. He retired from the reserves in the

summer of 2000.

While in the reserves, and between active duty projects, Mr. Freeland

owned various businesses, and in the 1990's he assisted a chief engineer at a small

AM station, and subsequently became chief engineer for Tom Williams at

Susquehanna Radio from the mid 1990's to 2000 in Alabama. That system was

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moved to Atlanta, and Mr. Freeland was asked to help them get their studios set up

there. In the meantime, Tom Williams was hired by APEX, and he recruited Mr.

Freeland in the spring of 2001. Mr. Freeland had been with the company for about

seven months when the accident occurred.

Accordingly, we have a cohesive history of a career in communications,

electronics, and radio that began for Mr. Freeland at the age of seventeen and

eventually led to a solid career in radio, broadcast engineering. Given the ample

evidence in the record regarding Mr. Freeland’s education and experience, his

ingenuity, initiative, and dedication, and the testimony of Tom Williams regarding

Mr. Freeland’s work ethics and abilities, a reasonable juror would have concluded

that Mr. Freeland would still be working in radio broadcasting but for the auto

accident in 2001.

With regard to Mr. Freeland’s education, the record on appeal contains

his diploma from the University of South Florida, indicating his bachelor’s degree

was earned in 1980. Mr. Freeland also indicated a degree from the University of

Southern California in 1982 in Systems Management. His military records, pursuant

to the printout in the record entitled, “Personnel Qualification Record (Commissioned

Officer),” indicates an education level of “6th year college” and an education

certification of “Master’s Degree.” Mr. Freeland testified that while stationed in

Germany, he took extension courses through the University of Southern California

(USC) in Systems Management, and his military printout indicates a major in Systems

Management. The defendants offered somewhat conflicting evidence by entering

transcripts from USC showing only six hours completed in 1981. However, Mr.

Freeland was apparently in Germany in 1982, as well. We note that the record

certification from USC states that the records provided are the “records described in

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the subpoena.” The record provided to us on appeal contains 1,532 pages and does

not appear to have the subpoena attached. Accordingly, we do not know whether the

subpoena requested the records from 1982.

Moreover, Mr. Freeland’s counsel pointed out that the certification of

records from USC states that there may be additional records under a different name

or spelling. In any event, the defendants do not address the issue on appeal, and we

find that the question of Mr. Freeland’s Master’s Degree is not determinative in this

case, as Mr. Freeland is not making a claim for a high-end salary based solely upon

his post-graduate education. He is simply requesting that he be reinstated to the

earning potential that he had before the accident, which the economic expert in this

case estimated at $48,000.00 per year.

More specifically, Dr. Michael Kurth, a full professor and department

head of Finance and Economics at McNeese University in Lake Charles, testified

regarding Mr. Freeland’s lost wages. Based upon Mr. Freeland’s social security

earnings records and his tax returns, Dr. Kurth placed Mr. Freeland’s pre-accident

earning capacity at $48,000.00 per year. After the accident, Mr. Freeland’s actual

income dropped to $11,625.00 in 2002, but by 2006, he had worked his way back up

to $38,380.00. Calculating a one percent (1%) salary increase per year, and factoring

in the difference between his benefits, which were considered higher with the

Sheriff’s Department, thereby decreasing the loss, Dr. Kurth calculated a past lost

income of $112,633.00. Using the same methodology, but applying a present value

discount of two and one half percent (2 ½ %), and anticipating a 16 ½ year work life

expectancy, Dr. Kurth calculated a future loss in income of $161,987.00. The

defendants did not present an economic expert of their own. We find Dr. Kurth’s

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recommendations appropriate, and make lost income awards consistent with his

analysis.

In addition to loss of past income and loss of future earning capacity, Dr.

Kurth provided an additional figure for “non-market” or household services. Dr.

Kurth explained that if Mr. Freeland worked around the house and yard for ten hours

a week before the accident, but could no longer do that after the accident, then the

value of those services could be estimated at $12.00 per hour, or $120.00 per week,

resulting in lost services in Mr. Freeland’s case of $113,993.00. He stated that the

studies vary on this element of damages because every household is different, and

that the figure should be determined by listening to the testimony of Mr. Freeland

regarding his pre-accident activities and his post-accident activities.

The record indicates that Mr. Freeland and his son lived with Mr.

Freeland’s sister for a while after the accident, but the period of time is uncertain. At

the time of trial over four years after the accident, Mr. Freeland was buying a very

small house, 900 square feet, with a very small yard. Mr. Freeland no longer has

rental properties to maintain and does very little yard work. Accordingly, we find the

record too indefinite on this element of damages and decline to make a separate award

for non-market services.

Dr. Kurth also provided a figure for the lost perquisites that Mr. Freeland

received while at APEX Broadcasting in the form of hotel lodging, vehicle use, as

well as food and gasoline provisions. He valued those provisions at $12,000.00 per

year and estimated a loss of $219,617.00 for that element of damages. Again, he

stated that this figure could be adjusted by the fact-finder and that it was being

offered as a means of estimating damage. While we believe that the $1,000.00 per

month figure is conservative for food, housing, car, and gasoline, we believe that the

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proof is too tenuous in this case where the record indicates that Mr. Freeland has had

the use of a vehicle, laptop, and, possibly, a cell phone at various times during his

three jobs with the Sheriff’s Department as well. Additionally, there is evidence that

Mr. Freeland had some perquisites in his employment before coming to Lake Charles.

Based upon the record in this case, we cannot extract the different perquisites from

the different salaries so as to quantify them. Accordingly, we decline to award this

element of damages.

Dr. Kurth admitted that there are unique areas of complexity in this case

due to the complicating factor of Mr. Freeland’s termination immediately after the

accident and due to the fact that Mr. Freeland was still in his probationary period as

detention deputy at the time of trial. He stated that Mr. Freeland could lose that

position and suffer an even greater loss than those calculated. He further stated that

the work expectancy tables still being used to project income are twenty years old and

use the age of 65 as the end point of work life. Yet, work life expectancy is now

beyond 65, and Mr. Freeland’s loss would be greater if the tables were current.

During Dr. Kurth’s deposition, counsel for the defendants attempted to

have Dr. Kurth reduce his calculation of lost income in 2002 by eight months, arguing

that because Mr. Freeland received unemployment benefits during that time, he was

out of work due to his termination by APEX, and therefore, for reasons unrelated to

the accident. Dr. Kurth ran the calculation but made it clear that the determination

of whether Mr. Freeland was out of work for reasons unrelated to the accident was

a fact that would have to be determined by someone other than himself. He had

already testified that, but for the accident, it would not have taken Mr. Freeland long

to return to his former salary based upon his skills, his communications work in the

military, his civilian work history, and the fact that he had a child to support. The

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record provides ample support that Mr. Freeland would have been able to maintain

his level of income. He wanted to work; he had never applied for unemployment

benefits before; he had the skills to stay in radio broadcasting; he was working in

radio broadcasting in Atlanta when he was recruited to come to Louisiana.

There simply are no means by which to determine how long it would

have taken Mr. Freeland to find another job after termination if Mr. Bourgeois had

not run a stop sign and broadsided Mr. Freeland. However, there is evidence that Mr.

Freeland could not have continued to do the work that he was doing for Tom

Williams at APEX with the conditions in his neck and back that developed after the

accident, as Mr. Williams testified. There is also overwhelming evidence in the

record of Mr. Freeland’s ingenuity, industriousness, dedication, and tenacity that

preponderates in favor of Mr. Freeland’s continued employment in radio broadcasting

but for the accident caused by Mr. Bourgeois. The fact that Mr. Freeland’s employer

terminated him the day after the accident does not relieve the defendants of their

obligation. “Every act whatever of man that causes damage to another obliges him

by whose fault it happened to repair it.” La.Civ.Code art. 2315.

IV.

CONCLUSION

Based upon the foregoing, where we find clear error in the jury’s

evaluation of the evidence at trial, we reverse the jury verdict in favor of the

defendants and award Mr. Freeland damages as follows: $112,633.00 for past lost

wages, $161,987.00 for future lost wages, $21,612.40 for past medical expenses,

$98,600.00 for future medical expenses, and $50,000.00 in general damages.

REVERSED AND RENDERED.

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