Tanya White v. Progressive Security Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 08-926

TANYA WHITE

VERSUS

PROGRESSIVE SECURITY INS. CO., ET AL.

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APPEAL FROM THE
ALEXANDRIA CITY COURT
PARISH OF RAPIDES CITY COURT, NO. 106,651
HONORABLE RICHARD ERIC STARLING, JR., CITY COURT JUDGE

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SHANNON JAMES GREMILLION
JUDGE

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Court composed of Marc T. Amy, Michael G. Sullivan, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Wilbert Joseph Saucier, Jr.
Attorney at Law
826 Main St.
Pineville, LA 71361
(318) 473-4146
Counsel for Plaintiff/Appellee:
Tanya White

Ian Alexander Macdonald
Longman Russo
P. O. Drawer 3408
Lafayette, LA 70502-3408
(337) 262-9000
Counsel for Defendants /Appellants:
Progressive Security Ins. Co.
Nicole Byrd

GREMILLION, Judge.

The defendant, Progressive Security Insurance Company, appeals the

judgment in favor of the plaintiff, Tanya White. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

White and Progressive’s insured, Nicole Byrd, were involved in a motor

vehicle accident in which Byrd rear-ended White in December 2005. Byrd’s liability

in this matter is not in dispute. Following a bench trial in January 2008, the trial court

rendered judgment in favor of White finding that her injuries were chronic and

permanent. It awarded her $60,000 in general damages, $6,950 in past medical

expenses, and $840 in future medical expenses. However, the total amount was

limited to $50,000, the jurisdictional limit of the court. Progressive now appeals.

White answers the appeal and requests damages for frivolous appeal.

ISSUES

Progressive assigns as error:

1. The testimony of Dr. Kelly Faircloth because she lacked
the expertise to render an opinion as to the cause of the
MRI findings.

2. The trial court’s finding that the accident caused the
degenerative changes shown on White’s MRI.

3. The trial court’s award of $60,000 for a soft tissue injury.

DISCUSSION

A court of appeal may not set aside a trial court’s finding of fact in the

absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d

840 (La.1989).

The appellate review of fact is not completed by reading only so much

of the record as will reveal a reasonable factual basis for the finding in the trial court,

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but if the trial court’s findings are reasonable in light of the record reviewed in its

entirety, the court of appeal may not reverse even though convinced that had it been

sitting as the trier of fact, it would have weighed the evidence differently. Id. at 844.

Though an appellate court may feel its own evaluations and inferences

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. Id. Where two permissible views of the evidence exist, the

factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.

Canter v. Koehring Co., 283 So.2d 716 (La.1973). “The issue to be resolved by a

reviewing court is not whether the trier of fact was right or wrong, but whether the

factfinder’s conclusion was a reasonable one.” Stobart v. State, through Dep’t of

Transp. And Dev., 617 So.2d 880, 882 (La.1993).

In its reasons for judgment, the trial court found:

Ms. White was treated by Dr. Kelly Faircloth, for injuries
diagnosed as cervical sprain/strain. There were objective signs of
injury, including muscle spasms and loss of the normal cervical curve.
In addition there was a diagnosis of thoracic and lumbar strain/sprain,
which were also evidenced by objective signs of injury. Ms. White was
initially treated with regular treatment for a period of six months before
Dr. Faircloth attempted to release Ms. White on May 30, 2006. Ms.
White attempted home therapy until her return to Dr. Faircloth on May
29, 2007. At that time she was still suffering pain in the same areas of
her neck and back. She was treated for approximately two more months.
After another attempted release, Ms. White returned to Dr. Faircloth’s
care in December of 2007. Dr. Faircloth testified that she was of the
opinion that Ms. White was suffering from a bulging disc in the cervical
region which correlates with the location of Ms. White’s complaints.
This was shown by an MRI performed on June 26, 2007. The court is
of the opinion that Ms. White suffered an injury which is chronic and
permanent. There is nothing to suggest she will obtain any relief in the
near future. At the time of the trial Ms. White was 25 months post
accident with the evidence indicating her injury is permanent.

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EXPERT TESTIMONY

Progressive argues that Dr. Faircloth, a chiropractor, was not qualified

to read or interpret an MRI film or to make conclusions regarding its relation to a

particular accident. We disagree.

In Rowe v. State Farm Mutual Automotive Insurance. Co., 95-669, p. 17

(La.App. 3 Cir. 3/6/96), 670 So.2d 718, 728, writ denied, 96-0824 (La. 5/17/96), 673

So.2d 611, we stated: “As a general rule, the factual basis of an expert’s opinion goes

to the credibility of the testimony, not its admissibility, and it is up to the opposing

party to examine the factual basis of the opinion in cross-examination. Loudermill v.

Dow Chemical Co., 863 F.2d 566 (8th Cir.1988).”

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 596,

113 S.Ct. 2786, 2798 (1983), the Supreme Court stated that “[v]igorous cross-

examination, presentation of contrary evidence, and careful instruction on the burden

of proof are the traditional and appropriate means of attacking shaky but admissible

evidence.” Further, appellate courts in this state have held that a testifying expert

need not be the one who compiled the statistics or data; she may rely on data prepared

by others. See Barre v. Bonds, 99-1806 (La.App. 4 Cir. 5/10/00), 763 So.2d 60.

Additionally, we have held that the method of testing or information collection should

be considered by the factfinder in assessing what weight to give to the expert's

conclusion. See State v. Brossette, 93-1036 (La.App. 3 Cir. 3/2/94), 634 So.2d 1309,

writ denied, 94-0802 (La. 6/24/94), 640 So.2d 1344.

Dr. Faircloth stated that she had testified as an expert more than thirty

times. She stated that she arrives at conclusions based on the history given by the

patient and her examination of the patient. She stated that she often renders opinions

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concerning the cause of injuries in automobile accidents. As to the MRI, Dr.

Faircloth testified that after requesting that an MRI be performed, she made

conclusions based on the results of the MRI. She never claimed to be a specialist in

reading or interpreting MRIs, however, that does not disqualify her from having an

opinion, based on her experience and knowledge, that takes into consideration her

treatment of the patient along with the MRI report prepared by a radiologist. This

assignment of error is without merit.

CAUSATION

Progressive argues that Dr. Faircloth’s opinion regarding the cause of

White’s MRI findings is not supported by the record. It is elemental that a plaintiff

must show a causal connection between the accident and the resulting injury.

Progressive states that Dr. Faircloth even acknowledged that she could not tell from

looking at the MRI report whether the findings were caused by the motor vehicle

accident or the aging process.

Dr. Faircloth stated that she first examined White, regarding the subject

accident, on December 9, 2005, five days after its occurrence. She said that White

reported immediate head and neck pain, with lower back pain following two days

later. Dr. Faircloth indicated that a physical exam revealed muscle spasms in various

parts of White’s neck and back. She further testified that an x-ray revealed that White

had cervical hypolordosis, or a decrease in her cervical curve. Dr. Faircloth stated

that this condition could be congenital or due to muscle spasm or splinting.

Dr. Faircloth diagnosed White with acute traumatic cervicothoracic

sprain with muscle spasms complicated by the hypolordosis and an acute traumatic

lumbar sacral sprain with associated muscle spasm based on the history White gave

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her and the examination she performed. She opined that the December 5, 2005

accident was the cause of the injury.

White’s treatment included intersegmental traction, diathermy (heat), and

spinal manipulation, and she was also given a topical analgesic gel to use at home.

She was actively treated for a period of six months beginning December 2005, and

ending in May 2006. She was released from treatment May 30, 2006, but Dr.

Faircloth testified that White continued to have neck and back pain along with

decreased range of motion. She said it was not uncommon to release patients who are

still symptomatic in the hopes that they will improve as they return to normal

activities.

Dr. Faircloth stated that White returned to her office on May 29, 2007,

with complaints of neck pain, headaches, and upper to mid back pain. She said these

complaints were the same as they were the year prior. Dr. Faircloth indicated that an

exam showed muscle spasms. She implemented a similar course of treatment as she

had the year before. Dr. Faircloth testified that White reported no intervening trauma

since her visit the year before. Dr. Faircloth continued treating White through July

30, 2007, when she was released again, although still experiencing some occasional

pain. Dr. Faircloth was of the opinion that White suffered from a chronic

sprain/strain injury.

White again returned for treatment on December 12 and 19, 2007,

complaining of similar symptoms as before. She again reported no intervening

trauma, and Dr. Faircloth again believed that White’s symptoms originated from the

December 2005 accident.

Dr. Faircloth testified that she requested that an MRI be performed,

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which was completed on June 26, 2007. The reporting radiologist indicated disc

protrusions at C3-4, C4-5, C5-6, and C6-C7. Dr. Faircloth stated that it is customary

to request an MRI when a patient shows little improvement over time and that it is a

helpful tool in diagnosing the patient and in prescribing the appropriate treatment.

However, she admitted that she did not review the film, only the report, and that an

MRI merely takes a picture of the condition that exists at that point in time.

Dr. Faircloth was of the opinion that the protruding disc, more likely

than not, resulted from this accident, but that it was difficult to say for certain since

no prior testing had been done. Nevertheless, she testified that it was her opinion that

the injuries from the December 2005 accident caused the protruding disc. Dr.

Faircloth went on to indicate that White would need periodic care depending on her

activity level.

Progressive introduced several photographs of the rear of White’s car

following the accident, which showed little or no visible damage. White further

testified that she drove away from the accident, went to lunch, and then returned to

work.

Having reviewed the entire record, we cannot say that the trial court

erred in finding that the December 2005 accident was the cause of White’s injuries,

including the protruding disc that revealed itself on the MRI. Although we may have

found differently had we been the trier of fact, based on the record before us, the trial

court’s findings were reasonable and, therefore, cannot be disturbed on appeal.

Accordingly, this assignment of error is without merit.

DAMAGES

The trial court awarded White $60,000 in general damages. The trial

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court’s findings are accorded great weight when reviewing a general damage award

and should rarely be disturbed absent a showing of clear abuse of discretion. Andrus

v. State Farm Mut. Auto. Ins. Co., 95-0801 (La. 3/22/96), 670 So.2d 1206. Thus, we

must determine whether the trial court’s award “is, in either direction, beyond that

which a reasonable trier of fact could assess for the effects of the particular injury to

the particular plaintiff under the particular circumstances” before we may adjust the

award. Id. at 1210.

Progressive argues that the evidence established that White sustained a

six month injury as opposed to an injury lasting more than two years. Had the trial

court concluded that this was a six month injury (or even a six month injury with only

minor residual problems), the award would have clearly been abusive. That was,

however, not the case. Rather, the trial court found that White was “still suffering”

“from chronic and permanent” problems two years after the accident. As stated

above, there was a reasonable basis for these findings.

In addition to the medical evidence, we have White’s testimony. White

testified to her ongoing neck and back pain along with continuing periodic headaches.

She testified that she liked to work out at the gym, but had to limit herself in order to

prevent injury. She further stated that she could no longer go snow-skiing and that

a boat ride following the accident caused severe back pain. She stated she regularly

boated prior to the accident but no longer does after the one attempt. She also stated

that the accident has limited her gardening activities. White further testified that she

cannot lift heavier things.

Additionally, Shirley Nunnelly, White’s mother and the owner of the

family restaurant where White works, testified that prior to the accident, White had

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no limitations at work, but that since the accident she is no longer able to lift items

such as sacks of onions, canned goods, big cans, and cases of canned goods. She

further testified that since the accident, White has been unable to maintain her garden

or go to the gym like she used to. Nunnelly also said that White cannot wash her car.

She further stated that White often complains of headaches. Nunnelly testified that

these problems continued through the time of trial.

It was not unreasonable for the trial court to find that White suffered

from a chronic injury lasting more than two years. Although we find this award is on

the high side, we cannot say that the trial court abused its vast discretion in its general

damage award. Accordingly, this assignment of error is without merit.

FRIVOLOUS APPEAL

White argues that she should be awarded damages for frivolous appeal.

La.Code Civ.P. art. 2164 provides that an appellate court may
award damages for frivolous appeal. However, damages for frivolous
appeal will not be awarded unless it appears that the appeal was taken
solely for the purpose of delay, that serious legal questions are not
raised, or that the attorney does not seriously believe in the position he
advocates. Robinson v. Thornton, 96-1329 (La.App. 3 Cir. 10/29/97);
705 So.2d 745, writ denied, 97-2963 (La.2/6/98); 709 So.2d 739.

Cooks v. Rodenback, 97-1389, p. 9 (La.App. 3 Cir. 4/29/98), 711 So.2d 444, 449.

Considering the facts before us, particularly the minor nature of the accident and the

gaps in treatment, we find no basis for awarding damages for frivolous appeal.

CONCLUSION

The judgment of the trial court in favor of the plaintiff-appellee, Tanya

White, is affirmed. All costs of this appeal are assessed against the defendant-

appellant, Progressive Security Insurance Company.

AFFIRMED.

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