Claudine Labarrera, Et Ux. v. Boyd Gaming Corporation

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-629

CLAUDINE LABARRERA, ET UX.

VERSUS

BOYD GAMING CORPORATION, ET AL.

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2009-4096
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

**********

JOHN D. SAUNDERS
JUDGE

**********

Court composed of John D. Saunders, Shannon J. Gremillion, and Phyllis M.
Keaty, Judges.

AFFIRMED, AS AMENDED.

Gremillion, J., concurs with written reasons.

David F. Bienvenu
Simon, Peragine
1100 Poydras St., 30th Fl.
New Orleans, LA 70163
(504) 569-2030
COUNSEL FOR THIRD PARTY APPELLEE:
Lagasse, Inc.
AmRep, Inc.

Steven Broussard
Attorney at Law
802 South Huntington
Sulphur, LA 70663
(337) 527-7006
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Claudine Labarrera
Alberto Labarrera

Robert Hugh Murphy
John Herr Musser, V
Murphy, Rogers, Sloss & Gambel
701 Poydras St., Suite 400
New Orleans, LA 70139
(504) 523-0400
COUNSEL FOR DEFENDANTS/APPELLEES:
Boyd Gaming Corp. d/b/a Delta Downs
Willie Patin

Aaron Broussard
Broussard & Hart
1301 Common Street
Lake Charles, LA 70601
(337) 439-2450
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Claudine Labarrera
Alberto Labarrera

Delta Downs Racetrack & Casino
Boyd Gaming Corp.

SAUNDERS, Judge.

This case involves a patron who slipped and fell in the lobby of a racetrack,

casino, and hotel. Video evidence shows a custodial employee spraying a cleaning

substance on a dust mop prior to dust mopping the racetrack casino & hotel lobby.

Thereafter, the patron is seen walking in the area where the spray was administered,

slipping, and falling.

The patron’s counsel discovered ex parte communication between the

racetrack, casino, and hotel’s counsel and a treating physician while that treating

physician was being deposed. Thereafter, the trial court ordered that the

physician’s deposition could not be used at trial, that the physician’s deposition be

retaken, and that no mention of the first deposition be made at trial. Thereafter, the

physician’s second deposition is admitted into evidence at trial.

Following the trial on the merits, the jury found that the patron was 42% at

fault for the accident and awarded her past medical expenses and general damages.

The patron and her husband have appealed.

FACTS AND PROCEDURAL HISTORY:

On April 26, 2009, Claudine Labarrera and her husband, Alberto Labarrera,

(Plaintiffs) were guests at Delta Downs Racetrack, Casino, and Hotel (Delta).

Early that morning, video surveillance depicts Willie Patin, a custodial employee

of Delta, spraying a cleaning substance on his dust mop prior to performing his

task of dust mopping the lobby.

The substance that Patin was shown spraying onto his dust mop is designed

to enhance the dust mop’s performance. One of the ingredients in the substance is

oil. When present on certain flooring, such as wood in this case, the substance can

cause the floor to become slippery.

Shortly after Patin is shown spraying the substance on his dust mop, video

surveillance shows Claudine slipping and falling while walking with Alberto. The

video shows that Claudine slipped and fell in the location where Patin sprayed the

performance-enhancing substance onto his dust mop.

Plaintiffs brought a personal injury action against Patin and Boyd Racing,

L.L.C., d/b/a Delta Downs Racetrack, Casino, and Hotel (collectively “Boyd”)

alleging that Claudine was injured in her slip and fall and that Alberto suffered a

loss of consortium as a result of Claudine’s injury. Boyd answered and alleged

that Claudine was contributorily negligent in causing the accident.

Claudine was treated for pain in multiple areas of her body by numerous

physicians. During the deposition of one of her treating physicians, Dr. Kim

Gargas, Plaintiffs’ counsel learned that an employee of Boyd’s counsel sent Dr.

Gargas a cover letter and a selection of Claudine’s medical records for him to

review in anticipation of his deposition. Plaintiffs filed a motion in limine to

prevent Dr. Gargas’ deposition from being admitted into evidence at trial. The trial

court ordered that Dr. Gargas’ first deposition could not be used at trial, that Dr.

Gargas’ deposition be retaken, and that no reference to Dr. Gargas’ first deposition,

nor the fact that it had to retaken, was to be made in front of the jury.

A jury trial commenced on December 3, 2012, and continued for two weeks.

Prior to the case going to the jury for consideration, Plaintiffs filed a motion for

directed verdict on the issue of comparative negligence. The trial court denied this

motion. After deliberations, the jury returned a verdict allocating 58% fault for

causing Claudine’s accident to Boyd and 42% to Claudine. The judgment awarded

Plaintiffs, inter alia, $39,851.80 for past medical expenses, $0.00 for future

medical expenses, $10,000.00 for past and future loss of enjoyment of life,

$30,000.00 for past and future physical pain and suffering, $15,000.00 for past and
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future emotional distress, and $0.00 for permanent disability for Claudine’s

injuries she sustained in her slip and fall.

Plaintiffs appealed the judgment. They have alleged the following:

ASSIGNMENTS OF ERROR:

1. The [t]rial [c]ourt’s denial of Plaintiffs’ motion for directed
verdict on contributory negligence regarding Claudine’s shoes.

2. The [j]ury finding contributory negligence.

3. The [t]rial [c]ourt’s failure to exclude a treating physician who
changed his opinions after having ex parte communications
with a defendant and reviewed medical records from other
providers without authorization or notice.

4. The [j]ury’s failure to award proven past and future medical
expenses.

5. The [j]ury’s failure to award fair and adequate general damages.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO:

In their first assignment of error, Plaintiffs contend that the trial court’s

denial of their motion for directed verdict on comparative negligence regarding

Claudine’s shoes was in error. Plaintiffs assert in their second assignment of error

that the jury erred in finding that Claudine was comparative negligent in causing

her accident. As both assignments deal with potential comparative negligence by

Claudine, we will address them under one heading.

“[T]he applicable standard of review on a motion for directed verdict is

whether the evidence in the record is such that a reasonable person could not reach

a verdict to the contrary.” Richard v. Artigue, 11-1471, p. 4 (La.App. 3 Cir.

4/4/12), 87 So.3d 997, 1001 (citing Hebert v. BellSouth Telecomms., Inc., 01-223

(La.App. 3 Cir. 6/6/01), 787 So.2d 614). Similarly, the standard to review of an

allocation of fault by a factfinder is that of the manifest error. Richard, 87 So.3d

997 (citing Duncan v. Kansas City S. Ry. Co., 00-66 (La. 10/30/00), 773 So.2d 670.

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Prior to negating a finding of fact under the manifest error standard, “an appellate

court must review the record in its entirety and (1) find that a reasonable factual

basis does not exist for the finding, and (2) further determine that the record

establishes that the fact finder is clearly wrong or manifestly erroneous.” Bonin v.

Ferrellgas, Inc., 03-3024, pp. 6-7 (La. 7/2/04), 877 So.2d 89, 94-95 (citing Stobart

v. State through Dep’t. of Transp. and Dev., 617 So.2d 880 (La.1993)).

In the case before us, Boyd asserted fault on the part of Claudine in each of

the numerous answers it submitted to Plaintiffs’ petition and subsequent

amendments. A party asserting comparative negligence has the burden to prove

that fact. McCarthy v. Entergy Gulf States, Inc., 11-600 (La.App. 3 Cir. 12/7/11),

82 So.3d 336, writ denied, 12-72 (La. 3/9/12), 84 So.3d 553. As such, when

reviewing the trial court’s denial of Plaintiffs’ motion for directed verdict, we must

look to the record to determine whether a reasonable person could reach a verdict

contrary to finding that Boyd failed to carried its burden to prove that Claudine

was contributorily negligent. Stated more clearly, we must ask whether a

reasonable person could find that Boyd carried its burden to prove that Claudine

had any comparative negligence. Similarly, under assignment of error number two,

we must look to the record to determine whether a reasonable factual basis exists

for the jury’s finding that Boyd carried its burden to prove that Claudine was

contributorily negligent, and, if not, whether the jury was clearly wrong in reaching

this conclusion. All of these considerations entail this court reviewing the record

to determine the reasonableness in finding that Boyd carried its burden to prove

that Claudine was contributorily negligent.

At trial, Boyd alleged several factors regarding Claudine’s comparative

negligence for her slip and fall. Those factors were Claudine’s shoes, gait,

impairment, failure to safely traverse a flooring change from carpet to wood, and
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failure to see Patin’s cart, which should have served as a warning to her that the

condition of the floor was potentially dangerous.

At the close of trial, Boyd conceded that it had put forth no evidence that

Claudine was impaired in any fashion. Further, it is quite clear when reviewing the

record that Boyd presented no evidence that Claudine’s gait was dangerous or

somehow contributed to the accident. Likewise, there is no evidence in the record

that Claudine had any trouble traversing the change in flooring from carpet to

wood, nor is there any evidence that Claudine was negligent in making the

transition.

There is dispute between the parties whether Claudine could have seen

Patin’s cart as she was walking. However, a resolution to this dispute is not

necessary.

Boyd presented the expert testimony of Mr. Sonny Launey, a civil engineer.

The following exchange took place in Launey’s testimony:

Q The cart is not a substitute for [] a wet floor sign or other kind
of warnings; correct?

A If you indeed are going to place a warning, you should place a
warning sign, yes, sir.

Q A cart is not a substitute[?]

A No, sir.

This testimony by Boyd’s expert does not establish that Patin’s cart was a

sufficient warning. Quite the contrary, it promotes the opposite, regardless of

whether Claudine could have seen the cart prior to her fall. Accordingly, it is clear

that no reasonable person could conclude that Boyd carried its burden to prove that

Claudine was contributorily negligent in failing to heed the concededly inadequate

warning, if any, provided by Patin’s cart.

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The final factor alleged by Boyd was that Claudine’s shoes were dangerous,

and that she was negligent in wearing these dangerous shoes. Boyd contends that

Launey’s testimony provides a basis for finding that Claudine’s shoes were

dangerous. We note that at the beginning of Launey’s testimony, the following

exchange took place (emphasis added):

Q All right. After considering all of that information, what
conclusions did you reach about the cause of this accident?

A Well, I really don’t know what caused the accident. I’ll straight
out say that. There are a number of factors that I think could
have contributed, and I think should be considered.

Thereafter, regarding Claudine’s shoes and any causation of her slip and fall,

Launey stated, “I’m not saying the shoes caused the accident . . . . I just think it’s

something to consider. Those hard, plastic-soled shoes are - - I think, can

contribute to an accident. I don’t know the role. I can’t and I will not specifically

say that’s what caused this accident” (emphasis added).

We find this testimony by Launey is insufficient. His statement that shoes

such as Claudine’s “could” or “can” contribute to a slip and fall is not a reasonable

foundation to find that Boyd carried its burden to prove that Claudine’s shoes were

dangerous.

Additionally, in reviewing Launey’s testimony, he stated that he conducted

no tests of any kind in preparation for the litigation. Rather, he simply states that

he “didn’t like” Claudine’s shoes. Originally, Launey opined that plastic-soled

shoes were inferior to rubber-soled shoes when considering how easily one can slip

and fall while walking in them. Later, Launey testified that the heel was the most

important part of a shoe when making this consideration. Thereafter, when

presented with one of Claudine’s shoes that she was wearing when she slipped and

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fell, Launey discovered that the heel of her shoe was the preferred rubber, rather

than the much maligned plastic.

Given Launey’s testimony as a whole, it is evident why he did not state that

Claudine’s shoes were dangerous and likely a contributing factor in her slip and

fall. Not only had he had not conducted a single test of any kind, he had never

looked at them, nor was he completely aware of their comprising materials.

Importantly, not even considering that Boyd failed to prove that Claudine’s

shoes were dangerous, it also has to show that Claudine was somehow negligent by

wearing the allegedly dangerous shoes. The record is absolutely devoid of any

evidence of even a theory as to how Claudine was negligent in wearing these shoes.

Finally, Boyd points to no other evidence that it contends supports either the

trial court denying Plaintiffs’ motion for directed verdict or the jury’s finding of

comparative negligence by Claudine. Further, this court has conducted a thorough

review of the record, and we find no evidence to support a determination that Boyd

carried its burden to prove contributorily negligence by Claudine in causing her

slip and fall. Accordingly, we amend the jury’s allocation of fault to Claudine for

this accident from 42% to 0%.

ASSIGNMENT OF ERROR NUMBER THREE:

In their next assignment of error, Plaintiffs assert that the trial court’s failure

to completely exclude the testimony of a treating physician who changed his

opinions after having ex parte communications with a defendant and reviewed

medical records from other providers without authorization or notice was in error.

We do not agree.

“The trial court is accorded vast discretion concerning the admission of

evidence, and its decision will not be reversed on appeal absent an abuse of that

discretion.” McIntosh v. McElveen, 04-1041, pp. 9-10 (La. App. 3 Cir. 2/2/05), 893
7

So.2d 986, 994, writ denied, 05-528 (La.4/29/05), 901 So.2d 1069; see also

Maddox v. Omni Drilling Corp., 96-1673 (La. App. 3 Cir. 8/6/97), 698 So.2d 1022,

writ denied, 97-2766, 97-2767 (La.1/30/98), 709 So.2d 706, and Wood v. American

National Prop.& Cas. Ins. Co., 07-1589 (La. App. 3 Cir. 12/23/08), 1 So.3d 764.

It is uncontradicted that an employee of Boyd’s counsel sent part of

Claudine’s medical records to Dr. Gargas on the day of Dr. Gargas’ first deposition

to help him prepare. Plaintiffs’ counsel discovered this during Dr. Gargas’ first

deposition. Thereafter, Plaintiffs filed a motion to exclude Dr. Gargas’ testimony

from the trial. The trial court ruled that Dr. Gargas’ first deposition was excluded

from evidence at trial. It also barred any discussion of the contents of Dr. Gargas’

first deposition and any discussion of the fact that it had to be retaken in front of

the jury. Further, the trial court ruled that Dr. Gargas’ deposition was to be taken a

second time. That second deposition was entered into evidence at trial in lieu of

Dr. Gargas’ live testimony.

According to Plaintiffs, these facts establish that Boyd’s counsel and Dr.

Gargas violated La.Code Evid. art. 510. Plaintiffs also assert that this violation

influenced Dr. Gargas to find no causation between Claudine’s accident and her

pain. Plaintiffs base their assertion regarding influence on the allegation that Dr.

Gargas’ opinion regarding causation in both depositions differed from his notes

included in Claudine’s medical records. Because Plaintiffs contend that the ex

parte communication permanently tainted Dr. Gargas’ testimony, and the integrity

of the trial as a whole, they ask this court to reverse the judgment of the jury and

perform a de novo review of the record under Boutte v. Winn-Dixie La, Inc., 95-

1123 (La.App. 3 Cir. 4/17/96), 674 So.2d 299, Coutee v. Global Marine Drilling

Co., 04-1293 (La.App. 3 Cir. 2/16/05), 895 So.2d 631, rev’d on other grounds, 05-

8

756 (La. 2/22/06), 924 So.2d 112, and Ernst v. Taylor, 08-1289 (La.App. 3 Cir.

5/6/09), 17 So.3d 981, writ denied, 09-1262 (La. 9/18/09).

We agree with Plaintiffs that a violation of La.Code of Evid. art. 510

occurred. Louisiana Code of Evidence Article 510(B)(1) establishes the privilege

that Claudine has regarding her medical records. Her privilege is then specifically

listed as an exception under La.Code Evid. art. 510(B)(2)(a), as Claudine has

asserted a personal injury claim. However, under La.Code Evid. art. 510(E), that

exception is limited to “testimony at trial or to discovery of the privileged

communication by one of the discovery methods authorized by Code of Civil

Procedure Article 1421 et seq.” La.Code Evid. art. 510(E). Here, an employee of

Boyd’s counsel wrote a cover letter and faxed Claudine’s medical records from

other providers to Dr. Gargas prior to the first deposition, and Dr. Gargas reviewed

those records. This is not a discovery method authorized by La.Code Civ.P. art.

1421 et seq. Therefore, it is clear that Dr. Gargas and Boyd’s counsel, through an

employee, violated La.Code Evid. art. 510.

We note that there is a view present in our sister court that there is nothing in

La.Code Evid. art. 510, or any other statute applicable to this issue, to “preclude,

prevent, or prohibit the flow of information from a litigant, an attorney, or anyone

else for that matter to a health care provider.” Hortman v. La. Steel Works, 96-

1433, p. 6 (La.App. 1 Cir. 6/20/97), 696 So.2d 625, 628, writ denied, 97-1919 (La.

11/7/97), 703 So.2d 1268 (emphasis in original). In Hortman, the first circuit,

announced this view quoted above, and found no violation of La.Code Evid. art.

510. Thereafter, the first circuit asserted that regardless of whether La.Code of

Evid. art. 510 was violated, La.Code Evid. art. 510(G) provides for sanctions

against the attorney, not the litigants, and any violation of La.Code Evid. art. 510

should never result in evidence exclusion.
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The supreme court has not addressed whether evidence exclusion is proper

for a violation of La.Code Evid. art. 510. However, it is clear from the

jurisprudence of this court that evidence can be excluded due to improper ex parte

communication. See Sloan v. Mouton, 11-804 (La.App. 3 Cir. 12/7/11), 82 So.3d

364, writ denied, 12-48 (La. 3/9/12), 84 So.3d 556; Peoples v. Fred’s Stores of

Tennessee, Inc., 09-1270 (La.App. 3 Cir. 6/2/10), 38 So.3d 1209, writ denied, 10-

1882 (La. 10/29/10), 48 So.3d 1090; Ernst, 17 So.3d 981; Coutee, 895 So.2d 631;

and Boutte, 674 So.2d 299.

From that jurisprudence, we ascertain that when adjudicating whether to

uphold a judgment rendered when a violation of La.Code Evid. art. 510 occurs and

tainted evidence is admitted, we have to look at the totality of the circumstances to

observe whether the integrity of trial was impacted such that a pall is cast on the

proceedings. Boutte, 674 So.2d 299; Coutee, 895 So.2d 631; Ernst, 17 So.3d 981.

One factor universally studied when considering the totality of the

circumstances has been whether the aggrieved party had sufficient notice to gather

and present contradicting evidence to rebut the evidence that stemmed from the

violative ex parte communication. In every case but one, Sloan, 82 So.3d 364, if

the aggrieved party did not receive sufficient notice and the evidence was

improperly considered at trial, we vacated the judgment and performed a de novo

review of the record. The Sloan court differed because the testimony resulting

from the violative ex parte communication had no impact on the finder of fact.

This is a well-reasoned exception, as the improper consideration of the evidence

made no difference in the result.

Other factors weighed by some panels were whether the credibility of the

aggrieved party was attacked by the tainted evidence, whether the physician’s

opinion changed due to information procured by participating in the violative ex
10

parte communication, and whether the physician’s opinion was unique.

Additionally, we have two cases where the question has been posed whether the

litigant participating in the violative ex parte communication should be allowed to

benefit from that communication in any fashion. See Peoples, 38 So.3d 1209 and

Wood v. Am. Nat’l Prop. and Cas. Ins. Co., 07-1589 (La.App. 3 Cir. 12/23/08), 1

So.3d 764.

In the case before us, Plaintiffs discovered the violation during Dr. Gargas’

first deposition. The trial court excluded that deposition and ordered Dr. Gargas to

be deposed a second time. Thus, any prejudice due to lack of notice was negated

when Plaintiffs had the opportunity to cross-examine Dr. Gargas at the second

deposition and the opportunity to pursue and prepare evidence to rebut Dr. Gargas’

testimony from that second deposition. Given the sequence of events, we find that

Plaintiffs had sufficient notice of the violative ex parte communication.

Next, we consider whether Claudine’s credibility was attacked by Dr.

Gargas’ testimony. Plaintiffs argue that Dr. Gargas’ testimony was used to attack

Claudine’s credibility because Boyd asserted that Claudine was doctor-shopping

for a physician who would perform surgery on her and Claudine looked for another

opinion after Dr. Gargas opined that she was not a surgical candidate at that time.

It is true that Claudine sought a second opinion after Dr. Gargas concluded

that she was not a surgical candidate at that time. However, Dr. Gargas’ did not

state that Claudine sought a second opinion in order to find a physician who would

perform surgery on her. He gave no opinion as to why Claudine sought a second

opinion and only stated that it was common for patients to seek second medical

opinions. Further, there is no testimony by Dr. Gargas that Claudine was anything

but truthful in his treatment of her. He simply opined that he did not think

Claudine was a surgical candidate when last he saw her. Additionally, Boyd’s
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assertion that Claudine was doctor-shopping is bolstered more by the number of

physicians that treated her than the fact that she got a second opinion while treating

with Dr. Gargas. Accordingly, we find that any attack on Claudine’s credibility by

Dr. Gargas’ testimony was minimal.

Next, we consider whether Dr. Gargas’ opinion was unique. Claudine saw

several physicians over the course of her treatment. We will discuss the opinions

of many below while adjudicating different assignments of error. The records

shows that a number of those physicians were of the opinion that Claudine’s pain

was not caused by her slip and fall. Therefore, Dr. Gargas’ opinion was not unique.

Finally, we consider whether Dr. Gargas’ opinion changed due to

information procured by participating in the violative ex parte communication. It

is true that Dr. Gargas’ opinion may have changed due to information from the

violative ex parte communication. The fact that a different treating physician

diagnosed Claudine with fibromyalgia may have changed Dr. Gargas’ opinion

about what was causing Claudine’s pain. However, that fact would have been

brought to light during Dr. Gargas’ deposition, and he could have reached the same

opinion once he learned of the diagnosis in the normal fashion during his

deposition. Further, after reviewing Dr. Gargas’ medical records, we find it just as

likely, if not more so, that Dr. Gargas’ opinion was changed during the course of

his treatment of Claudine and, in his view, superior diagnostic testing.

Early in treating Claudine, Dr. Gargas’ working diagnosis was that Claudine

had suffered her pain from the injuries incurred from her slip and fall. He mainly

based his opinion on the history that Claudine gave to him and the results of an

MRI that she underwent prior to his treating her. Over the course of treating her,

Dr. Gargas had Claudine undergo a second MRI because he felt that the first

MRI’s angle in viewing Claudine’s lumbar discs was not optimal. According to Dr.
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Gargas, he changed his diagnoses based on the results of that second MRI. Given

this explanation by Dr. Gargas for the changing of his diagnosis, we cannot say

that his opinion was changed as a result of the violative ex parte communication.

In summation, while we find that Boyd’s attorney did violate La.Code Evid.

art. 510, it is clear that Plaintiffs were notified of this violation with ample time to

counteract any prejudice created by the ex parte communication. We also find that

any attack in Dr. Gargas’ testimony on Claudine’s credibility was minimal, if at all.

Further, Dr. Gargas’ opinion was not unique, and did not necessarily change due to

information obtained in the violative ex parte communication.

Accordingly, we find no abuse of discretion by the trial court in admitting

Dr. Gargas’ second deposition into evidence. Further, given the totality of the

circumstances, we find that the integrity of the trial was intact despite the violation

of La.Code Evid. art. 510. As such, we find no merit to Plaintiffs’ assignment of

error number three.

ASSIGNMENT OF ERROR NUMBER FOUR:

In their next assignment of error, Plaintiffs contend that the jury’s failure to

award proven past and future medical expenses was in error. We find no merit to

this contention.

An award of special damages is reviewed pursuant to the
manifest error standard of review, unlike a general damage award
which is reviewed pursuant to the abuse of discretion standard.
Hornsby v. Bayou Jack Logging, 03-1544 (La.App. 3 Cir. 5/5/04), 872
So.2d 1244. Thus, “[t]he adequacy or inadequacy of the award should
be determined by the facts or circumstances of the case under
consideration.” Id. at 1248. The plaintiff bears the burden of proving
entitlement to special damages by a preponderance of the evidence. Id.

Savant v. Hobby Lobby Stores, Inc., 12-447, p. 13 (La.App. 3 Cir. 11/7/12), 104

So.3d 567, 575.

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In the case before us, Claudine’s medical records indicate minimal

preexisting pain that was not related to the pain that she endured after her slip and

fall. They also indicate that she had preexisting degenerative conditions

throughout her body, including arthritis. After her fall, Claudine developed carpal

tunnel syndrome, trigger finger in her thumb, and cubital tunnel syndrome.

Claudine had surgery to relieve her carpal tunnel syndrome, trigger finger,

and cubital tunnel syndrome. That surgery was performed by Dr. Jeffery Budoff,

an upper extremities orthopedic specialist. He opined that Claudine’s ailments for

which he was seeing her were not typically caused by trauma. He also stated that

if these symptoms were caused by trauma, he would expect to see evidence of that

trauma in Claudine’s medical records from her emergency room visit the night

after the fall, but he testified that there was no indication of any such trauma noted

in those records. Accordingly, we find no error by the jury in failing to award

Plaintiffs for treatment related to carpal tunnel syndrome, trigger finger in her

thumb, and cubital tunnel syndrome.

Further, after the fall, Claudine saw many physicians with complaints of

pain in numerous locations including her low back and legs. Claudine underwent

surgery on her back twice. Her first back surgery was a three-level foraminotomy,

a surgery that widens the openings where nerve roots leave the spinal canal. Her

second was the insertion of a spinal cord stimulator.

Dr. Stephen Esses, an orthopedic surgeon, decided to perform the three-level

foraminotomy in an attempt to alleviate Claudine’s low back and leg pain. After

Dr. Esses’ surgery, a spinal cord stimulator was inserted into Claudine’s lower

back by Dr. Jerry Keepers, an invasive pain management specialist. He inserted

the device to alleviate Claudine’s lower back and leg pain. Additionally,

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Claudine’s request for future medical expenses was related to potential surgeries to

replace the spinal cord stimulator inserted by Dr. Keepers.

Given that the reason for the two surgeries and the stated reason for the

potential future surgeries was alleviation of Claudine’s low back and leg pain, if

the jury could reasonably find that the source of Claudine’s persistent low back and

leg pain was not her slip and fall, it could also reasonably find that Claudine was

not entitled to most, if not all, of her requested medical expenses.

In reviewing the record, we find conflicting expert evidence on the source of

Claudine’s low back and leg pain. Dr. Miguel Papolla, a neurologist who Claudine

treated with of her own volition, performed an extensive ninety-minute

examination of Claudine. He diagnosed her with fibromyalgia, a chronic disorder

characterized by widespread musculoskeletal pain, fatigue, and tenderness in

localized areas. He opined that Claudine’s fibromyalgia was the source of her pain

and that it was not caused by Claudine’s slip and fall.

Claudine was also seen by pain specialists, Dr. Ranjit Patel and Dr. Lilly

Chen. She was treated at their office over twenty times over a year and a half. In

reviewing Claudine’s records from her treatments, the diagnosis of fibromyalgia

was indicated each time.

Plaintiffs argue that a diagnosis of fibromyalgia is improper after a slip and

fall. Regardless of whether Plaintiffs’ position has merit, they argued it to the jury.

Thus, the jury was aware of Plaintiffs’ argument and proof thereof and was in a

position to properly evaluate what value, if any, to give to Claudine’s fibromyalgia

diagnoses.

Further, Plaintiffs contend that the findings of Drs. Patel and Chen are of

limited or no value because the medical records contain indications of many

diagnoses, including one visit where multiple sclerosis was diagnosed. In
15

reviewing these records, it is true that the record dated July 29, 2011, shows a mark

next to multiple sclerosis indicating it as a diagnosis. However, the location where

the physician would indicate a diagnosis of fibromyalgia is just above multiple

sclerosis. Additionally, the location where a physician would indicate a diagnosis

of arthritis is just below that of multiple sclerosis. In each visit, fibromyalgia and

arthritis are indicated. Thus, it is likely that this multiple sclerosis “diagnosis” was

nothing more than an erroneous mark, and Plaintiffs’ attempt to discredit these

records is not well founded.

Finally, Claudine was examined by a neurologist, Dr. Hugo Orellana. He

opined that the source of Claudine’s pain was myofacial pain syndrome and not

from any injuries she endured as a result of her slip and fall.

Given these testimonies, the jury could reasonably have found that the

source of Claudine’s low back and leg pain was not her slip and fall. As such, the

jury’s exclusion of those expenses related to treating Claudine’s low back and leg

pain was reasonable.

In conclusion, we find that the expert medical testimony provides the jury

with a reasonable basis to exclude any expenses related to Claudine’s treatment of

carpal tunnel syndrome, trigger finger, or cubital tunnel syndrome. We also find

that there is a basis for the jury to exclude expenses associated with treating

Claudine’s low back and leg pain from it award to Claudine’s for her past medical

expenses. Finally, we find that the medical testimony in the record also provides

the jury with a basis for not awarding Claudine any future medical expenses.

Given these findings, we cannot say that the jury was manifestly erroneous in

either its award to Claudine for her past medical expenses or in its lack of award to

Claudine’s for her future medical expenses, as it was reasonable for the jury to

16

have found that Claudine only suffered soft tissue injuries that had resolved by the

time of trial. As such, we find no merit to Plaintiffs fourth assignment of error.

ASSIGNMENT OF ERROR NUMBER FIVE:

Finally, plaintiffs assert that the jury’s award of general damages was

inadequate. Again, we find no merit to this assignment of error.

An award of general damages is reviewed under the abuse of discretion

standard of review. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993),

cert. denied, 510 U.S. 1114, 114 S.Ct. 1059 (1994).

We found in assignment of error number four that a reasonable basis exists

for the jury to believe that Claudine’s low back and leg pain were not caused by

her slip and fall. Also in assignment of error number four, we found that

Claudine’s carpal tunnel syndrome, trigger finger in her thumb, and cubital tunnel

syndrome could reasonably have been found by the jury to be unrelated to her slip

and fall. As such, a view of the medical evidence exists to support the jury’s

finding that Claudine only suffered soft tissue injuries in her slip and fall. The

jury’s award of general damages is in accord with such awards, and we find no

abuse of the jury’s discretion.

CONCLUSION:

Plaintiffs, Claudine Labarrera and her husband, Alberto Labarrera, assert

five assignments of error. We combine the first two assignments because they

both raise the issue of the jury’s allocation of fault to Claudine Labarrera for her

slip and fall. We find that no reasonable person could ascertain that Boyd carried

its burden to prove any fault by Claudine Labarrera. As such, we amend judgment

of the jury to reflect that Boyd is 100% at fault for Claudine’s slip and fall.

We find no merit to third assignment of error. While Boyd’s attorney

violated La.Code Evid. art. 510, the violation, and subsequent admission of Dr.
17

Gargas’ second deposition, was not an abuse of the trial court’s discretion and did

not warrant reversal of the jury’s judgment.

Finally, we find no merit to assignments four and five. The jury’s damage

awards are adequately supported by the record.

AFFIRMED, AS AMENDED.

18

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-629

CLAUDINE LABARRERA, ET UX.

VERSUS

BOYD GAMING CORPORATION, ET AL.

GREMILLION, Judge, concurring.

The majority finds manifest error in the jury’s verdict and assesses the

casino 100% fault. Otherwise, the majority makes no changes to the total amount

of the verdict. I agree with these portions of the opinion.

There really was no evidence supporting any negligence on the part of the

plaintiff. Even the defense expert could only speculate that she might have or

could have contributed to the fall. The lack of evidence in the record requires us to

place all of the fault on the defendant.

I concur because I believe the issue of whether Louisiana Code of Evidence

article 510 was violated, and the effect of this violation, needs exploration and

explanation. Initially, I will state my unequivocal agreement with the majority that

any violation that may have occurred resulted in no prejudice to the plaintiff.

Plaintiff could not possibly have expected that Dr. Gargas would not have been

exhaustively cross-examined on the medical records that were sent to him. Sooner

or later, those records were going to find their way into Dr. Gargas’s hands.

Article 510 takes, then gives, then takes again. Paragraph (B)(1) clearly

takes away a defense attorney’s right to communicate with a plaintiff’s health care

provider, and vice versa. The patient has a privilege to refuse to disclose, and to

refuse another person to disclose, confidential communications between himself

and his health care provider. Another person would include the casino’s attorney.

However, Paragraph (b)(2)(A) states that there is no privilege when the

communication relates to the health condition of a personal injury or workers’

compensation claimant.. Finally, Paragraph (E), entitled “Waiver,” provides that

the exceptions in Paragraph (B)(2) only apply to trial testimony or a discovery

method authorized by La.Code Civ.P. arts. 1421, et seq. Ultimately, what this

“waiver” does is clearly allow the defense attorney to communicate with the

plaintiff’s health care provider, but only through proper means of discovery.

In this case, the defense attorney’s employee communicated with the

plaintiff’s health care provider by providing other medical records to the doctor to

prepare him for his deposition the next day. Thus, there are actually two technical

violations of Article 510. First, the communication with this particular health care

provider did not take place within a deposition or a trial. Secondly, the

communication included other health care records for which the plaintiff also had a

privilege.

I call this a “technical” violation to demonstrate how minor I really think it

was. Yes, the attorney’s employee should not have engaged in that

communication, and Dr. Gargas should not have received the medical records from

the defense attorney outside the deposition. However, the records were only being

provided for the purpose of preparing for the deposition during which the

communication between the doctor and the defense attorney and the presentation

of those very same medical records would have been absolutely appropriate. The

“violation” resulted only in the doctor being made aware of information a few

hours earlier than would have been technically proper, and only for the purpose of

being better prepared to participate in the proper deposition.

Ms. Laberrera suggests that all of this resulted in a large amount of unfair

surprise. I completely disagree. Again, she had to anticipate that Dr. Gargas

would be asked to discuss these very medical records at his deposition. To strike

Dr. Gargas’s deposition would, in my opinion, subvert justice by concealing from

the jury evidence that is completely relevant to the case and that was otherwise

fairly obtained.