Dempsey Ray Wiley v. Bayou Gaming, Inc.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

13-1449

DEMPSEY RAY WILEY

VERSUS

BAYOU GAMING, INC.
AND FRED TAYLOR

**********

APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CONCORDIA, DOCKET NO. 43,552-A
HONORABLE KATHY JOHNSON, DISTRICT JUDGE

**********

JAMES T. GENOVESE
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy,
J. David Painter, James T. Genovese, and John E. Conery, Judges.

REVERSED.

Thibodeaux, Chief Judge, dissents and assigns written reasons.

Paul A Lemke III
Post Office Box 595
Harrisonburg, Louisiana 71340
(318) 744-5431
COUNSEL FOR DEFENDANTS/APPELLANTS:
Fred and Nicole Taylor

V. Russell Purvis
Smith, Taliaferro & Purvis
407 Mound Street
Post Office Box 298
Jonesville, Louisiana 71343
(318) 339-8526
COUNSEL FOR PLAINTIFF/APPELLEE:
Dempsey Ray Wiley

GENOVESE, Judge.

In this personal injury action, Defendants, Fred and Nicole Taylor, appeal

the trial court‟s judgment finding them liable and awarding damages for the

injuries sustained by Plaintiff, Dempsey Ray Wiley, as a result of a barroom

scuffle. For the following reasons, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

The record indicates that on October 14, 2007, Dempsey Wiley (Wiley) was

present at the Stockyard Saloon, a bar located in Vidalia, Louisiana. According to

his petition filed on May 13, 2008, Wiley alleged he “was physically attacked and

beaten by Fred Taylor and other employees of the Stockyard Saloon.”1 The

petition further described the alleged attack as follows:

After [Wiley] had been knocked to the ground[,] he was
repeatedly stomped and kicked by Defendant, Fred Taylor[,] and the
other unknown employees of Defendant Bayou Gaming, Inc.

[]

[Wiley] suffered grievous injuries caused by the beating which
was caused by the intentional acts of Defendant, Fred Taylor[,] and
negligent acts of Defendant, Bayou Gaming, Inc. Further, Bayou
Gaming, Inc., is vicariously liable for all acts of Fred Taylor.

[]

[Wiley] suffered numerous injuries as a result of the beating
necessitating numerous surgeries[,] and on April 4, 2007, [Wiley‟s]
foot was amputated as a result of the beating suffered by [him].

In September 2008, Wiley filed an amended petition naming Fred Taylor‟s wife,

Nicole Taylor, as a defendant in her capacity as “[l]essee of Bayou Gaming, Inc.,

and Stockyard Saloon.”

1
Through discovery, it was learned that the Stockyard Saloon was owned by Nicole
Taylor, Fred Taylor‟s wife. The building which housed the Stockyard Saloon was owned by
Bayou Gaming, Inc. (Bayou Gaming). Nicole Taylor leased the building which housed the
Stockyard Saloon from Bayou Gaming.

A bench trial was held on February 16 and 17, and November 16, 2012.

Following the presentation of Wiley‟s case, the trial court granted a motion for

involuntary dismissal2 in favor of Bayou Gaming3 and denied a motion for

involuntary dismissal sought by Nicole Taylor.4 At the conclusion of the trial, the

matter was taken under advisement, and the filing of post-trial memoranda was

allowed.

On April 1, 2013, the trial court issued written Reasons for Judgment and

signed a Judgment in favor of Wiley. In its written Reasons for Judgment, the trial

court stated the following relative to the issue of Fred Taylor‟s liability:

While the testimony is contradictory with regard to this issue, the
uncontested fact is that [Wiley] had sustained significant injuries by
the time Concordia Parish Deputies Webber and Merrill arrived at the
Stockyard which Dempsey did not have when he arrived. Further it is
obvious to this Court that these injuries could not have been sustained
by [Wiley] merely as a result of a fall or from his kicking a truck as
Fred testified. This Court gives much weight to the testimony of
Dr. J.H. Fairbanks, [Wiley‟s] treating orthopedic surgeon, who
testified in his deposition that the injuries received by [Wiley] simply
could not have been sustained from a fall or from kicking a truck[,]
but the trauma suffered by [Wiley] had to be occasioned by the
infliction of an outside force[.]

....

This Court is of the opinion that the “outside force” was the
direct result of the excessive use of force by Fred in removing [Wiley]
from the premises. Even if [Wiley] was intoxicated, belligerent, and
using abusive language, use of excessive physical force by Fred in
removing [Wiley] from the premises is not permitted[.]

2
We note that at trial, these requests were incorrectly referred to as motions for directed
verdicts; however, the correct designation for this procedural vehicle “[i]n an action tried by the
court without a jury” is a motion for involuntary dismissal. La.Code Civ.P. art. 1672(B).
3
The trial court granted Bayou Gaming‟s motion for involuntary dismissal, stating that
Wiley had “not met [his] burden of showing that [Bayou Gaming was] liable in any way other
than they were the lessor to [Nicole] Taylor.”
4
The trial court denied Nicole Taylor‟s motion for involuntary dismissal, stating “[t]here
is sufficient evidence to show that she was the lessor of the establishment and the owner of the
bar.”

2

The trial court found that Fred Taylor had committed the intentional tort of battery

on Wiley and that Nicole Taylor, d/b/a the Stockyard Saloon, was vicariously

liable for Fred‟s tortious actions. The trial court awarded damages to Wiley as

follows:

General damage award for broken ankle, facial contusions, lacerations
and damage to his shoulder: $80,000.00
(To be reduced by 30% due to comparative fault of [Wiley])
$56,000.00

General damage award for loss of leg: $300,000.00
(To be reduced by 70% due to comparative fault of [Wiley])
$90,000.00

Past lost wages: $75,433.00
(Calculated from date of injury, Oct. 14, 2007, until date of report of
Dr. Rice, February 18, 2009)
(To be reduced by 30% due to comparative fault of [Wiley])
$52,803.10

Future lost earnings: $567,663.00
(Based on report of Dr. Rice, dated February 18, 2009)
(To be reduced by 70% due to comparative fault of [Wiley])
$170,298.90

Special damages for hospital expenses for initial injury: $20,257.41
(To be reduced by 30% due to comparative fault of [Wiley])
$14,180.18

Special damages for hospital expenses for amputation of leg:
$97,272.90
(To be reduced by 70% due to comparative fault of [Wiley])
$29,181.87

TOTAL AWARD: $412,464.05

Fred and Nicole Taylor have filed a suspensive appeal.

ASSIGNMENTS OF ERROR

Fred and Nicole Taylor appeal the trial court‟s April 1, 2013 Judgment,

specifying the following assignments of error:

3

[1.] The trial court erred in finding that Fred Taylor was liable for
an intentional tort of battery on Dempsey Wiley.

[2.] The trial court erred in finding that Nichole [sic] Taylor was
vicariously liable for the actions of Fred Taylor and that she was
negligent in protecting the patrons in her drinking establishment.

[3.] The trial court abused its discretion in awarding Mr. Wiley a
personal injury judgment of $412,464.05 dollars as this award was
unsupported by the record and testimony.

LAW AND DISCUSSION

Whether the trial court erred in finding that Fred Taylor was liable for

committing the intentional tort of battery on Wiley is a factual determination by the

trial court requiring that we apply the manifest error standard of review. In Ashley

v. Strong, 09-336, pp. 2-3 (La.App. 3 Cir. 10/07/09), 19 So.3d 1260, 1261-62

(quoting Poole v. Poole, 08-1325, pp. 4-5 (La.App. 3 Cir. 4/1/09), 7 So.3d 806,

810), this court set forth the applicable standard of review as follows:

[A] factual determination of the trial court . . . is subject to the
manifest error/clearly wrong standard of review. Stobart v. State,
Through Dep’t. of Transp. & Dev., 617 So.2d 880 (La.1993).

In order to reverse a fact finder‟s determination of fact, an
appellate court must review the record in its entirety and meet the
following two-part test: (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. Id. Where there is conflict in the testimony presented at
trial, the trial court‟s reasonable evaluations of credibility and
reasonable inferences of fact should not be disturbed upon review.
Rosell v. ESCO, 549 So.2d 840 (La.1989). A trial court‟s credibility
determinations are subject to the strictest deference, and the manifest
error or clearly wrong standard demands great deference for the trial
court‟s findings. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640
So.2d 1305. “[T]he 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, 617 So.2d at
882. Thus, if the trial court‟s decision is reasonable in light of the
record reviewed in its entirety, the court of appeal may not reverse
even though the appellate court would have weighed the evidence
differently. Rosell, 549 So.2d 840.

4

Fred and Nicole Taylor assert that the trial court erred in finding that Fred

Taylor was liable for committing the intentional tort of battery on Wiley. Fred

Taylor denies battering Wiley and alleges that Wiley caused his own injuries. Fred

and Nicole Taylor contend that the evidence at trial established that Wiley “was

very intoxicated, . . . was belligerent and aggressive with other patrons in the bar

and the lady working the bar and was asked to leave[,]” and that he “became

aggressive and hostile with everyone in the bar[.]” Finally, Fred and Nicole Taylor

assert in brief that the trial court erred in relying upon Wiley‟s testimony to

determine that he had proven by a preponderance of the evidence that Fred Taylor

had battered him, particularly when Wiley “admitted he had blackouts and his

memory was vague about before and during the incident he alleges he was

battered.” For the reasons that follow, we find the trial court‟s determination

relative to Fred Taylor‟s liability to be manifestly erroneous and reverse the

Judgment of the trial court accordingly.

Whether Fred Taylor battered Wiley was hotly contested. The testimony of

Wiley and Fred Taylor was correctly characterized by the trial court as

“contradictory[.]” Wiley told one version of the incident, while Fred Taylor told

another. After thoroughly reviewing the record, we find that there is no reasonable

factual basis for the trial court‟s finding that it was proven by a preponderance of

the evidence that Fred Taylor committed an intentional battery on Wiley. We,

therefore, find that the record establishes that the trial court was clearly wrong.

First to testify at trial was Deputy Phillip Webber, an Investigator with the

Concordia Parish Sheriff‟s Department. On October 14, 2007, he was a patrol

deputy, and he responded to the complaint call made from the Stockyard Saloon.

He recalled speaking to Fred Taylor upon arriving, who stated that he “put [Wiley]

5

out of the bar.” Deputy Webber testified that Wiley “seemed to be very

intoxicated. He was belligerent, you know, yelling, screaming. And he was telling

me that Fred and whoever else there had jumped on him[,] and he was kind of hard

to control at that time.” According to Deputy Webber, the Sheriff Office‟s

dispatch record indicated that: (1) the complaint call was received from the

Stockyard Saloon at 8:42 p.m.; (2) the complaint call was made by Fred Taylor; (3)

he arrived on scene at 8:45 p.m.; and, (3) he requested a rescue unit for Wiley at

8:51 p.m. Though he did not know whom, Deputy Webber recalled “somebody

had Wiley held, like in a bear hug, sitting down on the concrete to the right of the

door.” Deputy Webber recalled putting Wiley in handcuffs, and it was while

Wiley was sitting on the ground, handcuffed, that he complained of being injured,

which prompted Deputy Webber to request a rescue unit. Upon being shown

photographs of Wiley‟s face taken in the hospital, and being questioned as to

whether he remembered observing injuries to Wiley‟s face, Deputy Webber

testified “I remember his leg. The face, I don‟t remember it like that. But, I‟m not

saying it wasn‟t.”

Fred Taylor was asked if, at any point, he ever touched Wiley, and he replied

that he “tried to help Mr. Wiley up when he fell against the pool table. [Wiley] got

very angry. Started hollering, I took his kids. And I got away from him.” Fred

Taylor claimed that Tracy Allen Walden, a customer, “got [Wiley] up. Walked out

the door with him.” When asked how Wiley injured his face, Fred Taylor claimed

that, once outside, “he fell face first in [sic] the concrete.” Wiley was crying and

“hollering he wanted to die[,]” and “[t]hat‟s when [he] realized, well, ain‟t nothing

you gonna be able to do with him. I called 911.” According to Fred Taylor, “long

as I stayed to the backside of Mr. Wiley, he was fine. He wasn‟t struggling.

6

Mr. [Walden] had him laid [out] on the ground [and was] petting [Wiley‟s] head.

He was crying like a baby about his kids dying.” Fred Taylor explained that when

Deputy Webber arrived, “[Mr. Walden] was laying there rubbing [Wiley‟s] head,

babying him. [Deputy Webber] pulled up and started talking with Dempsey Wiley

or whatever. And he started struggling a little bit. He handcuffed him.” Upon

further questioning by the trial judge, Fred Taylor explained that Wiley walked

towards the exit but fell near a pool table. He tried to help Wiley stand up, but

“that‟s when he started trying to fight me, telling me I took his kids. And then I

backed off. Tracy [Walden] got, you know, got him up on his feet and walked him

out the door.” Fred Taylor described what he saw when he walked outside:

[Wiley] was leaning with his head on the truck crying and
everything[,] and he done kicked the tire on the truck a couple of
times[,] and he was cussing and turned around and looked at me and
told me it was my fault; I did it; I took his kids. And he went to come
toward me. Well, I moved backwards. When I did, he fell, cussing, I
did it. I did it. Well, I got away from him[,] and [Mr. Walden] took
over and I went in the bar and got the phone and called 911 and asked
for somebody to come up there and give me a hand.

Danny Merrill, a retired Lieutenant with the Concordia Parish Sheriff‟s

Department, testified that on October 14, 2007, he was a supervisor on patrol and

also responded to the complaint call made from the Stockyard Saloon, arriving

shortly after Deputy Webber and before the ambulance. According to Lieutenant

Merrill, when he arrived, Wiley was lying on the ground. Lieutenant Merrill asked

Wiley what had happened, to which he responded, “[W]hat do you think

happened?” Lieutenant Merrill asked, “[W]ho did this to you?” Wiley‟s answer

was, “[W]ho do you think did this to me?” Lieutenant Merrill recalled that Wiley

complained about his leg, but he did not recall seeing injuries on his face. When

Lieutenant Merrill questioned Fred Taylor, he denied touching Wiley.

7

Mr. Walden, the only disinterested witness to the incident at issue, testified

that he overheard Wiley say something offensive to the female bartender and heard

Fred Taylor warn Wiley to calm down, or he would be made to leave. According

to Mr. Walden, “A little while later [Wiley] said something towards Fred. I didn‟t

really pick up what he said. But, I took it as if it was said to me, I would take it as

a threat. And then Fred told him he had to go.” Mr. Walden described what

happened next as follows:

Well, Fred told him to leave. [Wiley] got up; started walking
towards the door. The pool table closest to the door, when he got
there, he just -- like he fell or tripped, like he fell.

....

And Fred went over to help him. And then things kind of went
downhill after that.

....

Well, when Fred went over, you know, to help him up --
because like I said, he fell – [Wiley] got really -- real quickly, got --
well mad. Like he got mad at Fred. He went off on Fred. He started
trying to -- Fred bent over to help him up. He kind of reached for
Fred like he was fixing to -- like he choked him. It looked like he was
choking him.

Mr. Walden testified that he helped Wiley out of the door because Fred Taylor‟s

efforts to help Wiley stand up to leave only made matters worse. Mr. Walden

explained that once outside, Wiley kicked a vehicle‟s bumper, and “he fell down

on the ground. He tried to get up. He fell down again and hit is [sic] face on --

well not hit. Kind of like, like fell down trying to get back up.” According to

Mr. Walden, Wiley “started acting like his leg was hurting.” He admitted that he

held Wiley down until a sheriff‟s deputy arrived, stating “I was sitting on the

ground and [Wiley]‟s head and torso was [sic] in my lap. I was trying to restrain

him from getting up. Because, he said he was hurt.” He asked for someone to get

8

a washrag because Wiley was bleeding from falling and hitting his head on the

ground, and because he thought a cool rag would calm him. Mr. Walden denied

battering Wiley and disputed the allegation that Wiley was battered by anyone at

the Stockyard Saloon. Mr. Walden‟s testimony was clear that Wiley‟s injuries

were not inflicted by Fred Taylor.

Joyce Marie Tanner went to the Stockyard Saloon with Wiley, her brother.

According to Ms. Tanner, Wiley was not hurt and did not have any trouble walking

when they arrived at the bar. She stayed for about an hour, but left before the

incident at issue occurred. When she returned, Wiley was being loaded into an

ambulance.

Under direct examination, Wiley described what occurred to him as:

Fred come jerked me off the bar stool. And when he went on the
floor, I was on top. Somebody kicked me off. That‟s when the
stomping starts. And then the next thing I remember, I‟m by the pool
table being stomped. And then when we get outside he‟s knocking
me over this iron pipe that goes down the front of the bar. And then
the next thing I remember, they loading me up in the ambulance.

When asked specifically by the trial judge, “What did you say happened about the

iron bar outside?” Wiley replied, “The problem is, see, I just remember bits and

pieces of it. But, what I do remember is Fred knocking me over that pole -- that

pole outside.” When asked what happened next, Wiley answered, “Well, I don‟t

remember. All I know the next thing it was the ambulance and the cops were

there.”

Under cross-examination, Wiley was asked if he said anything to Fred

Taylor while he was in the bar, and he replied, “It‟s possible I could have. . . . I

don‟t remember. But, I‟m sure he come jerked me off of there for some reason.”

Wiley testified that he drank three beers with his coworkers before leaving work

9

around four o‟clock and, while at the Stockyard Saloon, he remembered drinking

beers and a shot of Jagermeister. When asked by the court how many beers he

drank at the Stockyard Saloon, Wiley admitted that he did not know. He said, “It

was two or three -- three or four.” Wiley admitted that he did “not even remember

getting out the door[,]” but he was certain that he “never kicked a truck.” When

asked whether it was his testimony that two people attacked him, he replied, “I am

not sure. But, I know that Fred -- when Fred was kicking me, me trying to cover

up from him, somebody was kicking me in the head. So, I guess that adds up to be

two.” When the trial judge inquired, “And you testified that -- sometimes you

blacked out. You don‟t remember some of the facts that night.” Wiley

acknowledged, “Yes, ma‟am.”

Lindsey Nicole Meyers was the bartender at the Stockyard Saloon the night

the incident at issue occurred. Ms. Meyers testified that Wiley became upset

because Fred Taylor “wouldn‟t let him charge, have a charge account.” She

witnessed Fred Taylor ask Wiley to leave “two or three times” before he escorted

him out the door. Ms. Meyers did not go outside. She testified that she did not see

anyone stomp, push, or hit Wiley. In her opinion, Wiley was drunk and “upset

because his son just got killed.”

Dr. J.H. Fairbanks, an orthopedic surgeon, treated Wiley in the hospital for

his injured right leg. Dr. Fairbanks did not testify at trial; instead, he testified via

deposition. Photographs taken of Wiley in the hospital were attached to his

deposition. Noteworthy is the fact that Dr. Fairbanks did not recall the injuries to

Wiley‟s face until he was shown photographs, as revealed in the following

exchange:

10

PLAINTIFF‟S COUNSEL:

Was [sic] there any other injuries that you noticed at the time or
diagnosed at the time of the fracture to [Wiley‟s] ankle?

DR. FAIRBANKS:

Not that I recall.

PLAINTIFF‟S COUNSEL:

I‟ve got some photographs I want to show you and I want you
to see if that refreshes your memory. These are pictures taken of
Mr. Wiley at the time of this.

....

Would these pictures be reflective of the condition of
Mr. Wiley at the time you examined him in the emergency room?

DR. FAIRBANKS:

I don‟t recall that but I would assume they would.

Despite the fact that Dr. Fairbanks did not witness how Wiley was injured and had

to “assume” the depiction in the photographs, the trial court clearly and

erroneously relied heavily upon his opinion to conclude that Wiley had suffered his

injuries as a result of a battery. The exact statements by Dr. Fairbanks upon which

the trial court relied and specifically quoted in its Reasons for Judgment are

evinced in the following exchange:

PLAINTIFF‟S COUNSEL:

There‟s been some allegations that Mr. Wiley tripped and
injured himself, would the injuries that you see in these photographs,
would that be indicative of somebody that had tripped and fall [sic]?

DR. FAIRBANKS:

Not likely.

11

PLAINTIFF‟S COUNSEL:

Would these be more indicative of somebody that had been
beaten?

DR. FAIRBANKS:

Somebody that‟s been in a fight.

Dr. Fairbanks did not opine that Wiley‟s injuries were the result of Fred Taylor‟s

actions or those of anyone else. He simply stated that Wiley‟s injuries were

indicative of somebody who had been in a fight. There was no proof of a fight

much less any injuries incurred by Wiley and inflicted by Fred Taylor as a result of

a fight.

After reviewing the record in its entirety, we find that a reasonable factual

basis does not exist for the trial court‟s findings and that the trial court‟s

determination of Fred Taylor‟s liability is manifest error. The trial court ignored

and disregarded the testimony of the only independent witness, Mr. Walden. Not

only was Mr. Walden disinterested in the cause, he witnessed the entire event and

fully corroborated Fred Taylor‟s testimony that he did not batter Wiley. The trial

court, which acknowledged that “the testimony is contradictory[,]” based its

finding that Fred Taylor committed battery due, in part, to the fact that Wiley “had

sustained significant injuries by the time Concordia Parish Deputies Webber and

Merrill arrived at the Stockyard which [Wiley] did not have when he arrived.”

This circumstance, combined with the judgment of Dr. Fairbanks that Wiley had

“been in a fight” led to the trial court‟s “opinion that the „outside force‟ was the

direct result of the excessive use of force by Fred [Taylor] in removing [Wiley]

from the premises.” However, there was no proof by a preponderance of the

12

evidence of such an occurrence; thus, there is a failure by Wiley to establish

causation between his injuries and Fred Taylor‟s actions.

In light of the guidance outlined above as applied to the facts of this case set

forth in the record, we find manifest error in the trial court‟s finding that it was

proven by a preponderance of the evidence that Fred Taylor committed an

intentional battery on Wiley. Considering the evidence in the record, we conclude

that the evidence did not establish by a preponderance of the evidence that Wiley

was intentionally injured by anyone, much less that Fred Taylor was legally

responsible for Wiley‟s injuries. The trial court was manifestly erroneous and

clearly wrong in ruling otherwise. Accordingly, we reverse the judgment of the

trial court. Having reversed the trial court on the issue of liability, we need not

address the remaining issues of vicarious liability and damages.

DECREE

For the reasons stated herein, the judgment of the trial court is reversed.

Costs of this appeal are assessed against Plaintiff/Appellee, Dempsey Ray Wiley.

REVERSED.

13

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1449

DEMPSEY RAY WILEY

VERSUS

BAYOU GAMING, INC. AND FRED TAYLOR

THIBODEAUX, Chief Judge, dissenting.

The proper standard of review is manifest error which the majority

acknowledges. The majority further observes that the issue of an intentional

battery was “hotly contested.” The plaintiff testified that he was beaten violently

and stomped on. One of the defendants indicated the plaintiff was intoxicated and

suffered an unprovoked fall. The trial judge heard and weighed this testimony.

After doing so, she concluded that “[t]he testimony of the witnesses varied

substantially as to what actually transpired and often is directly contradictory.”

She then went on to summarize the testimony and concluded that “it is obvious to

this Court that these injuries could not have been sustained by Dempsey merely as

a result of a fall or from kicking a truck as Fred testified. This Court gives much

weight to a testimony of Dr. J. H. Fairbanks, Dempsey’s treating orthopedic

surgeon . . . .” Dr. Fairbanks clearly indicated that the plaintiff’s injuries would

not be indicative of “somebody that had tripped and [fallen].” Rather, they would

be indicative of “somebody that’s been in a fight.” Clearly, the trial court believed

the testimony of Dr. Fairbanks and did not believe the testimony of the witnesses

who said that the plaintiff happened to have kicked a truck in the parking lot and

suffered an unprovoked fall. Dr. Fairbanks’s testimony was particularly persuasive

given the fact that the plaintiff’s injury required a plate and some screws and an

incision about five inches in length. He suffered a bimalleolar ankle fracture.

I would affirm the judgment of the trial court but would reverse on the

damages awarded for the leg amputation. Dr. Fairbanks clearly testified in his

deposition that the plaintiff failed or refused to follow post-operative care.