Jennifer Smith v. Shirley Simmons

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1075

JENNIFER SMITH

VERSUS

SHIRLEY SIMMONS, ET AL.

**********

APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2005-7922-A
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Elizabeth A. Pickett, Judges.

AFFIRMED.

John Taylor Bennett
Bennett Law Office
Post Office Box 275
Marksville, LA 71351
(318) 253-4631
Counsel for Plaintiff-Appellee:
Jennifer Smith

Paul Douglas Oberle Jr.
Richie, Richie & Oberle, LLP
P. O. Box 44065
Shreveport, LA 71134
(318) 222-8305
Counsel for Defendant-Appellant:
Imperial Fire and Casualty Insurance Co.

Pickett, Judge.

The appellant, Imperial Fire & Casualty Insurance Company, appeals a

judgment awarding damages to the plaintiff, Jennifer Smith.

STATEMENT OF THE CASE

On May 28, 2004, the plaintiff Jennifer Smith was involved in a motor vehicle

accident with Shirley Simmons. Mrs. Smith allegedly sustained injuries in this

accident, and filed suit against Ms. Simmons, Imperial Fire & Casualty Insurance

Company (Imperial), and Louisiana Farm Bureau Casualty Insurance Company (Farm

Bureau). Ms. Simmons was never served with the petition in this case, and she was

never involved in this litigation. Imperial was sued as the insurer of Ms. Simmons’s

vehicle, and Farm Bureau was sued as the UM carrier of Mrs. Smith. Farm Bureau

settled with Mrs. Smith on the day of the trial. Thus, a bench trial proceeded against

Imperial.

Imperial stipulated that its insured, Ms. Simmons, was at fault in causing the

accident and that it had issued a 10/20 policy to Ms. Simmons. The only issue before

the trial court, then, was the extent of Mrs. Smith’s damages. Mrs. Smith alleged that

she suffered an injury to her right upper back in this accident. She admitted that she

had pain in her back immediately before the accident, but that it was the left side that

was injured prior to this accident. Imperial alleged that at the time of the May 28,

2004, accident, Mrs. Smith was being treated by Dr. Bryan McCann for injuries

sustained in a previous accident. Thus, it argued that the injuries which Mrs. Smith

attributed to the accident with Ms. Simmons were actually preexisting injuries she

sustained in the first accident. Imperial relied on three pieces of evidence to support

this argument. First, the records of Mrs. Smith’s massage therapist, whom she saw

2

four times in the two weeks before the May 28, 2004, accident, indicate Mrs. Smith

had pain in her right upper back and shoulder before the accident. Second, Mrs.

Smith gave a deposition in a lawsuit stemming from the first accident on June 9,

2004. In that deposition, she claimed she was not injured in the second accident and

the accident did not aggravate her injuries. Third, she gave a recorded statement to

a representative of Imperial, Marcia Coker, on June 15, 2004. In that statement, when

asked by Ms. Coker, “Were you injured?” Mrs. Smith replied, “No, I was not.”

Finally, Imperial also points out that Mrs. Smith never told Dr. McCann about the

second accident until the lawsuit in the first accident had been settled.

Following a bench trial on February 22, 2006, the trial court took the matter

under advisement. On February 27, 2006, the trial court issued written reasons for

ruling, finding Imperial liable for damages to Mrs. Smith. The trial court awarded

$3,500.00 in general damages and $1,678.67 in special damages. A judgment in

conformity with the written reasons was signed on June 6, 2006. Imperial has

appealed that judgment.

ASSIGNMENTS OF ERROR

Imperial asserts two assignments of error:

1. Whether the trial court erred as a matter of law in allowing hearsay
testimony of Dr. Bryan McCann, plaintiff’s treating physician, regarding
what he was told were the policies of Heather Rivas, the plaintiff’s
massage therapist, with respect to whether she took contemporaneous
notes.

2. Whether the court was manifestly erroneous and clearly wrong in
finding that the plaintiff sustained any injury in the May 28, 2004, motor
vehicle accident which forms the basis of this lawsuit.

3

DISCUSSION

Dr. McCann testified at the deposition he gave in preparation for the trial of

this matter that his medical records indicated that Mrs. Smith did not have an injury

to her right shoulder or the right side of her upper back immediately prior to the May

28, 2004, accident. His records indicated that Mrs. Smith had complained of right

shoulder pain and numbness in her right hand as late as April 1, 2004, but had not

complained of any right side problems in any of the three visits to Dr. McCann

immediately preceding the accident. On June 14, 2004, Mrs. Smith complained to Dr.

McCann of pain and tightness in her right shoulder and scapular area. She did not tell

Dr. McCann she had been in another accident on May 28, 2004. Mrs. Smith

continued to complain of pain in her right shoulder, right upper back, and neck

through October 27, 2004, when she was discharged by Dr. McCann. Mrs. Smith did

not tell Dr. McCann about the second accident until May 2005. Based on his medical

records, Dr. McCann opined that Mrs. Smith’s right shoulder and upper back pain

was related to the accident of May 28, 2004.

Dr. McCann was then confronted with the records of Ms. Heather Rivas, a

massage therapist who worked in his office. These records were included in the

records of Dr. McCann. Mrs. Smith had massage therapy sessions with Ms. Rivas on

May 17, 21, 24 and 28, 2004. In Ms. Rivas’s notes, she indicates that Mrs. Smith had

pain or tightness in her right upper back or shoulder on each of these four visits.

Notably, the last visit was the same day as the accident, but before the accident

occurred. At the deposition, Dr. McCann stated that given the records of Ms. Rivas,

which indicate right side pain immediately before the accident, he could not say it

4

was more probable than not that the May 28, 2004, accident caused the right shoulder

injury to Mrs. Smith.

Dr. McCann testified again at the trial of this matter. He explained how he

takes his notes contemporaneously with his examination of a patient. He was then

asked if he knew how Ms. Rivas kept her notes. Imperial lodged an objection, saying

that Dr. McCann’s testimony would be impermissible hearsay. Dr. McCann testified

that he asked his office staff about Ms. Rivas’s note-taking, and one of his staff

members, Patricia, told him how she did it. Imperial again stated the objection, and

the trial court allowed the testimony. Dr. McCann went on to testify that Patricia told

him that Ms. Rivas would write her notes at the front desk after the patient had left,

not contemporaneous with the therapy sessions. Based on this information, Dr.

McCann surmised that his notes were more likely to be correct than Ms. Rivas’s

notes, and he was able to state that the accident of May 28, 2004, caused an injury to

Mrs. Smith’s right side.

Hearsay is defined by La.Code Evid. art. 801(C) as “a statement, other than one

made by the declarant while testifying at the present trial or hearing, offered in

evidence to prove the truth of the matter asserted.” Hearsay testimony is inadmissible

unless it falls into one of the exceptions contained in the Code of Evidence. La.Code

Evid. art. 802. Dr. McCann’s testimony about what Patricia or any other person in

his office told him about Ms. Rivas’s record keeping is clearly hearsay, and no

exception would allow it to be admitted. Thus, the trial court erred in allowing this

testimony.

The effect of this error is, however, harmless. The fact still exists that the

records of Dr. McCann and Ms. Rivas conflict. The trial court found that Mrs. Smith

5

was a credible witness who was merely a poor historian. The trial court clearly

believed that Dr. McCann’s records were accurate. Credibility determinations are

within the purview of the trier of fact. An appellate court may not set aside the

factual findings of a trial court unless manifestly erroneous or clearly wrong. Rosell

v. ESCO, 549 So.2d 840 (La.1989). The trial court took into account the conflicting

statements of Mrs. Smith and found her injuries to be attributable to the May 28,

2004, accident. As there is sufficient evidence to support the findings of the trial

court, we must affirm that judgment.

Finally, Mrs. Smith, in brief, argues that she should be awarded damages for

frivolous appeal. She has not filed an answer to the appeal, therefore, we will not

consider this argument. See La.Code Civ.P. art. 2133.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are taxed

against Imperial Fire and Casualty Insurance Company.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3, Uniform Rules, Courts of Appeal.

6