The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
22-418
ALISA ALAN DURKHEIMER
VERSUS
TRANISE L. LANDRY, ET AL.
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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20146472
HONORABLE MARILYN C. CASTLE,.DISTRICT JUDGE
$I OORRIOR K
VAN H. KYZAR
JUDGE
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Court composed of D. Kent Savoie, Van H. Kyzar, and Gary J. Ortego, Judges.
AFFIRMED AND RENDERED.
Charles Benjamin Landry
C. Benjamin Landry, A Professional Law Corporation
1309 Lafayette Street
Lafayette, LA 70501
(337) 232-9806
COUNSEL FOR PLAINTIFF/APPELLEE/APPELLANT:
Alisa Alan Durkheimer
Diana L. Tonagel
Mark D. Boyer
J. Brent Barry
Blake F. Harris
Rhonda S. Smith
Boyer, Hebert, Caruso & Angelle, LLC
1280 Del Este Avenue
Denham Spring, LA 70726
(225) 664-4335
COUNSEL FOR DEFENDANT/APPELLANT/APPELLEE:
Trinity Universal Insurance Company
KYZAR, Judge.
The defendant, Trinity Universal Insurance Company, appeals from a trial
court judgment awarding the plaintiff, Alisa Alan Durkheimer, penalties and
attorney fees based on a jury’s finding that it acted arbitrarily and capriciously in its
handling of her uninsured motorist claim. Ms. Durkheimer also appeals the trial
court’s reduction of the jury award in conformity with her uninsured motorist policy
limits and its calculation of the penalty award. For the following reasons, we affirm
the judgment and award Ms. Durkheimer additional! attorney fees.
FACTS AND PROCEDURAL HISTORY
At approximately noon on January 14, 2014, Ms. Durkheimer (Plaintiff) was
driving north on Southpark Road in Lafayette, Louisiana, when she slowed down
because the vehicle ahead of her had stopped to make a left turn. As she was slowing
to a stop, she was struck from behind by a vehicle driven by Tranise L. Landry, who
was cited for careless operation. Plaintiff experienced an immediate onset of neck
and lower back pain and headache, and after seeking medical treatment, she was
diagnosed with a head contusion and cervical and lumbar sprains. When her
symptoms continued, she sought further treatment, including extensive physical
therapy and epidural steroid lumbar injections. Eventually, Plaintiff, who had
subsequently moved to Denver, Colorado, underwent two surgical procedures for
her neck pain, an anterior cervical discectomy and fusion (ACDF) at C4-5 and an
ACDF at C5-6.
On December 30, 2014, Plaintiff filed suit against Ms. Landry and her auto
insurer, State Farm Fire and Casualty Company (State Farm), and her own uninsured
motorist (UM) insurer, Trinity Universal Insurance Company (Defendant), seeking
damages for the injuries she suffered as a result of the accident.' Defendant
answered the petition, pleading, among others, the affirmative defense of
comparative fault. It later amended its answer to plead the affirmative defense of
sudden emergency doctrine. On June 1, 2016, an order of partial dismissal was
rendered by the trial court, dismissing Plaintiff's claims against Ms. Landry and
State Farm after a settlement was reached between the parties.
On December 14, 2018, Plaintiff filed a first supplemental and amending
petition, alleging bad faith on the part of Defendant in its handling of her UM claim
and seeking penalties and attorney fees pursuant to La.R.S. 22:1892 and La.R.S.
22:1973. After denying this allegation, Defendant moved for a peremptory
exception of no cause of action on the issue of bad faith, which the trial court denied.
Thereafter, Defendant filed a motion for summary judgment on the same issue.
Following a hearing, the trial court denied Defendant’s motion. A written judgment
was rendered on this issue on March 4, 2020. Defendant filed an application for
supervisory writs on the denial of its motion, which this court denied. Durkheimer
v. Trinity Universal Ins. Co., 20-75 (La.App. 3 Cir. 3/13/20) (unpublished writ).
The matter proceeded to a jury trial, which was heard between October 18-
22, 2021. At the start of the trial, the parties stipulated to the following: the accident
occurred on January 14, 2014; State Farm provided Ms. Landry with $15,000.00 in
liability coverage; Defendant was Plaintiff's UM provider; State Farm tendered its
policy limits to Plaintiff on September 26, 2015; Defendant unconditionally tendered
its $25,000.00 medical payments (med-pay) policy limits to Plaintiff by December
15, 2015; Defendant received Ms. Landry’s affidavit on April 4, 2016, confirming
' The UM coverage is contained in the auto policy issued by Defendant to Plaintiff's
mother.
’ The name of the unpublished writ should actually be titled Durkheimer v. Landry.
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she had no other insurance at the time of the accident and proof of Plaintiffs
underinsured status; and photos of the two vehicles taken by the insurers were
deemed authenticated.
After Plaintiff rested her case, Defendant moved for a directed verdict on the
issue of bad faith, which the trial court denied. At the conclusion of the trial, the
jury rendered a verdict finding Ms. Landry 100% at fault in causing the accident and
Plaintiff's injuries. It awarded Plaintiff $325,000.00 in past medical expenses and
$375,000.00 in general damages. It further held that Defendant acted arbitrarily,
capriciously, or without probable cause in failing to pay $325,000.00 to Plaintiff on
her UM claim within the statutory period.
A judgment on the jury verdict was rendered by the trial court on November
16, 2021, awarding Plaintiff a total of $700,000.00 in damages and reserving the
award of penalties and attorney fees to a later hearing.’ Thereafter, Plaintiff moved
to assess penalties, attorney fees, and costs, and Defendant moved for a judgment
notwithstanding the verdict (JNOV), for remittitur and revision of the judgment,
and/or, alternatively, for a new trial. Attached to Defendant’s motion, as well as its
opposition to Plaintiff's motion, was an unredacted copy of the declarations page of
Plaintiff's policy with Defendant, which established the UM policy limits as
$500,000.00. Plaintiff moved to strike the declarations page, arguing that it was
inadmissible evidence since Defendant failed to proffer it during the jury trial.
Following hearings on these motions, the trial court denied Plaintiff's motion
to strike and denied Defendant’s motions for JNOV and new trial. In granting
Defendant’s motion for remittitur or revision, the trial court reduced the $700,000.00
jury award to the $500,000.00 UM policy limits. It further reduced the $500,000.00
> Judgment was originally rendered by the trial court on November 5, 2021. However, the
trial court subsequently rendered the “alternative” November 16, 2021 judgment.
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by $69,798.48," for a total damage award of $430,201.52. The trial court granted
Plaintiff's motion to assess penalties and attorney fees, awarding her $162,500.00 in
penalties, or 50% of $325,000.00, and $197,567.17 in attorney fees pursuant to
La.R.S. 22:1892(B)(1){a), as well as $23,175.57 in expert witness fees and costs.
Judgment was rendered on these issues on February 1, 2022. It is from this
judgment, as well as the trial court’s denial of its motion for summary judgment, that
Defendant appeals.
On appeal, Defendant raises seven assignments of error:
1. The trial court erred in refusing to grant [Defendant’s] pre-trial
aa for summary judgment on the alleged bad faith penalty
2. The trial court erred as a matter of law in admitting inadmissible
evidence as to plaintiffs alleged bad faith claim[.]
3. The trial court erred as a matter of law in refusing to grant
[Defendant’s] motion for directed verdict on the alleged bad faith
penalty claim[.]
4, The jury’s verdict finding bad faith was tainted and contrary to
law[.]
5. The trial court erred in submitting the presumption and/or the
incorrect Hous/ey instruction to the jury to decide[.]
6. The trial court erred in denying Defendant’s motion for JNOV
on the finding of bad faith[.]
7. The trial court erred in admitting testimony of David Barezyk,
D.C.
Plaintiff, who also appealed the judgment, raises five assignments of error:
1. The trial court erred in reducing the liability of the UM/UIM
insurer, [Defendant], to its policy limits when the policy limits
were intentionally not admitted into evidence and are not part of
the appeal record.
2. The trial court incorrectly calculated mandatory statutory
penalties under La.R.S. 22:1892, in direct violation of the
* The amount was based on Defendant’s unconditional tenders of $54,409.99 and a
Medicaid payment of $15,388.49 received by Plaintiff.
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statutory language which instructs the court how penalties are
imposed.
3. The quantum awarded for general damages for two anterior
cervical disc surgeries with fusions with ongoing disability and
back injury, including nearly (8) eight years of intense suffering
and tremendous loss of enjoyment of life, was abusively low.
4, Since the trial court erroneously reduced the total award by
policy limits that were not introduced, erroneously applied the
law on the calculation of insurer penalties, and since the jury’s
award of general damages was abusively low, the attorney fees
awarded by the trial court, that were calculated as 33% of the
total award, were too low and should be adjusted upward to
account for the increased total award on appeal.
5. Since attorney fees were awarded to Plaintiff in the trial court,
Plaintiff-Appellant requests that additional attorney fees be
awarded for the present appeal.
We will consider Defendant’s appeal first.
OPINION
DEFENDANT’S APPEAL
Defendant’s appeal can be broken down into two primary areas of challenge.
Assignments of error two, five, and seven relate to evidentiary and procedural
matters. Assignments of error one, three, four, and six relate to the merits of the
claim and the finding that Defendant was in bad faith in its handling of Plaintiff's
claim. We first consider the issues related to the evidentiary and procedural matters
as the finding of such errors could result in a de novo review of the remaining issues
if the jury’s factfinding process was interdicted by such error. Roach v. State
through Dep’t of Transp. & Dev., 20-211, 20-212 (La.App. 3 Cir. 9/22/21), 329
S0.3d 974, writ denied, 21-1527 (La. 1/12/22), 330 So.3d 621.
Assignment of Error Number Two
In its second assignment of error, Defendant argues that the trial court abused
its discretion by allowing Plaintiff to introduce into evidence exhibits P-55, P-56, P-
62, and P-63, which exhibits, it argues, were not disclosed on Plaintiffs pretrial
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exhibit list and were not authenticated by Plaintiff prior to their admission into
evidence. Defendant further contends that the introduction of these exhibits
substantially prejudiced its defense and improperly prejudiced the jury, such that it
interdicted the jury’s factfinding process in determining whether it acted in bad faith.
Thus, it argues the jury’s finding of bad faith should be reversed and the matter
reviewed by this court pursuant to a de novo review.
With regard to a trial court’s evidentiary rulings, this court, in Rayburn v. State
Farm Mutual Automobile Insurance Co., 21-160, pp. 2-3 (La.App. 3 Cir. 11/10/21),
330 So.3d 709, 712-13, stated:
The trial court is accorded vast discretion concerning the admission of
evidence, and its decision will not be reversed on appeal unless it has
abused that discretion. Maddox v. Omni Drilling Corp., 96-1673
(La.App. 3 Cir. 8/6/97), 698 So.2d 1022, writs denied, 97-2766, 97-
2767 (La. 1/30/98), 709 So.2d 706. If the trial court has abused its
discretion and the jury’s verdict is tainted, we conduct a de novo
review. McLean v. Hunter, 495 So.2d 1298 (La.1986). Prejudicial
errors materially affect the outcome of the trial and deprive a party of
their rights. Evans v. Lungrin, 97-0541, 97-0577 (La. 2/6/98), 708
So.2d 731. In determining if the error has substantially affected the
outcome of the case we look to the record as a whole. Wallace v.
Upjohn Co., 535 So.2d 1110 (La.App. 1 Cir. 1988), writ denied, 539
So.2d 630 (La.1989).
The exhibits at issue are emails sent by Plaintiff to Defendant, as follows:
1, P-55: An August 7, 2019 email informing Defendant about
Plaintiff's upcoming December 13, 2019 anterior cervical
discectomy and arthroplasty recommended by Dr. Sanjay Jatana
and enclosing surgery estimates of $6,504.00 and $4,884.00 for
Dr. Jatana and anesthesiology, respectively.
2. P-56: A February 18, 2020 email providing Defendant the
medical bills for Plaintiff's pre-op and overnight stay at Rose
Medical Center for the ACDF at C5-6 performed by Dr. Jatana.
3. P-62: A January 7, 2019 email containing Plaintiffs updated
medical bills, totaling $152,193.68.
4, P-63: A March 12, 2019 email following up on the January 7,
2019 email.
In her July 31, 2020 “Consolidated Amended Witness and Exhibit List,”
Plaintiff stated that she would be introducing at trial “[aJ]ll evidence showing
Defendant’s bad-faith handling of claim including, but not limited to the depositions
of all defense witnesses, all non-disclosed evidence, all evidence withheld in
response to subpoena, requests for pre-trial evidence, all impeachment evidence to
any evidence introduced by defendant . . . at trial[.]” (Converted to sentence case.)
Although the trial court initially sustained Defendant’s objection to the these
exhibits due to a lack of foundation, it later allowed them into evidence, over
Defendant’s objection, after Plaintiff introduced the January 23, 2020 deposition of
Belinda Henschel, a litigation specialist with Defendant’s parent company, Kemper.
During Ms. Henschel’s deposition, counsel for Defendant admitted that information
pertaining to Plaintiff's December 13, 2019 surgery performed by Dr. Jatana had
been received and forwarded to Ms. Henschel. Furthermore, Ms. Henschel testified
that she was aware of this surgery.
Much of the deposition centered on the decisions Defendant made regarding
Plaintiffs claim and the information it knew in making these decisions. The exhibits
offered and admitted by the trial court related to those decisions, and a proper
foundation existed once Ms. Henschel admitted knowledge of the surgery performed
by Dr. Jatana. As to the January 7 and March 9, 2019 emails, including Plaintiffs
updated medical expenses, Ms. Henschel admitted that Defendant made
unconditional tenders to Plaintiff in excess of her $25,000.00 med-pay coverage.
Again, this provided a basis for relevancy and a foundational support for these
emails.
In allowing the emails into evidence, the trial court stated, “It’s evidence that
[Plaintiffs counsel] submitted an estimate. It is just an estimate, but its evidence
that he submitted an estimate. That’s why it comes in.” Based on its vast discretion
7
in admitting or excluding evidence, we find that the trial court did not abuse its
discretion in allowing these exhibits into evidence.
Assignment of Error Number Five
Here, Defendant argues that the trial court erred in instructing the jury
regarding the presumption found in Housley v. Cerise, 579 So.2d 973 (La.1991),
and, alternatively, that the instruction as given was incorrect.
Defendant’s argument is two-fold. It first argues that the Housley
presumption was inappropriate because Plaintiff failed to establish, through medical
testimony, that the symptoms she experienced subsequent to the accident were
caused by the accident. Defendant next argues that the trial court’s Housley
instruction was misleading in that it “allow[ed] the jurors to consider any
‘circumstantial’ claims and showing only ‘a reasonable possibility of causation
between the accident and injury claimed,’ rather than medical proof of injury
causation as required” by Housley. We disagree with both arguments.
It is well settled that “a defendant takes his victim as he finds him and is
responsible for all natural and probable consequences of his tortious conduct.”
Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993). Thus, a “defendant’s liability
for damages is not mitigated by the fact that the plaintiff's preexisting physical
infirmity was responsible in part for the consequences of the plaintiff's injury by the
defendant.” Jd. Moreover, if the plaintiff's preexisting condition is aggravated as a
result of the defendant’s conduct, “the defendant must compensate the victim for the
full extent of the aggravation.” /d. at 1006.
In Housley, 579 So.2d 973, the supreme court applied the presumption of
liability utilized in workers’ compensation matters to the question of whether the
Defendant preserved this issue for appeal by making a contemporaneous objection to the
instruction before the trial court instructed the jury.
8
wife’s premature rupture of her amniotic sac was caused by her fall when she slipped
on a wet carpet. In doing so, the supreme court stated:
[a] claimant’s disability is presumed to have resulted from
an accident, if before the accident the injured person was
in good health, but commencing with the accident the
symptoms of the disabling condition appear and
continuously manifest themselves afterwards, providing
that the medical evidence shows there to be a reasonable
possibility of causal connection between the accident and
the disabling condition.
... We find this principle to be applicable in the present case.
Id. at 980 (alteration in original) (quoting Lukas v. Ins. Co. of N. Am., 342 So.2d 591,
596 (La.1977)).
This court has held that the requirement that the plaintiff be in good health
prior to the accident “has been interpreted as not requiring that the afflicted body
part be ‘in perfect health.’” Brown v. Town of Ferriday, 11-570, p. 6 (La.App. 3 Cir.
11/2/11), 76 So.3d 155, 160. In Layssard v. State, Department of Public Safety &
Corrections, 07-78, p. 9 (La.App. 3 Cir. 8/8/07), 963 So.2d 1053, 1061, writ denied,
07-1821 (La. 11/9/07), 967 So.2d 511, this court held that while the plaintiff's
medical records might have indicated that his “hip was not in perfect health, it does
not mean that his hip was not in ‘good health’ for purposes of Housley.” See also
Brock v. Singleton, 10-550 (La.App. 5 Cir. 3/29/11), 65 So.3d 649, writ denied, 11-
1216 (La. 9/23/11), 69 So.3d 1160.
After reviewing the record, we find that the trial court did not err in presenting
the Housley presumption to the jury. The main issue in this matter was whether
Plaintiffs symptoms and treatment, including her two ACDF surgeries, were related
to the January 14, 2014 accident or to injuries she suffered when skiing
competitively as a teenager. Essential to this issue was a determination of whether
Plaintiff was in good health prior to the accident. During the trial, the jury was
presented with extensive evidence on this issue, including Plaintiff's testimony and
9
the testimonies of her sister, her treating physicians, Ms. Landry, the emergency
room nurse practitioner, two claims adjusters, two experts in accident reconstruction
and biomechanics, and Defendant’s medical expert. The jury also considered
Plaintiffs medical history, dating from 2005-2019. Considering the importance of
this issue, we find that the trial court did not err in instructing the jury on the Housley
presumption.
With regard to Defendant’s second argument, “[a] trial court has broad
discretion in formulating jury instructions. The adequacy of any one jury instruction
is determined in the light of the instructions as a whole.” Renfro v. Burlington N.
Santa Fe Ry. Co., 15-372, p. 8 (La.App. 3 Cir. 5/11/16), 193 So.3d 1192, 1200
(citation omitted).
The trial court must give jury instructions that properly reflect
the law applicable to the facts of the particular case. Brown v. Diamond
Shamrock, Inc., 95-1172 (La.App. 3 Cir. 3/20/96); 671 So.2d 1049. To
fulfill this duty, the trial court must both insure that the jury considers
the correct law and, in giving the instructions, avoid confusing the jury.
Id. In Jorio v. Grossie, 94-846, pp. 2-3 (La.App. 3 Cir. 10/4/95); 663
So.2d 366, 368-69, this court stated:
A trial court should give all requested instructions
that correctly state the law, provided that they are material
and relevant to the litigation. Courts are not obligated to
give the specific jury instructions submitted by the parties,
but omission of a requested instruction containing an
essential legal principal [sic] may constitute reversible
error. A court has fulfilled its duty if its instructions fairly
and reasonably point out the issues presented by the
pleadings and evidence and provide the principles of law
necessary to resolve those issues.
An appellate court must exercise great restraint
before overturning a jury verdict on the basis of erroneous
instructions. Consequently, we will overturn the jury’s
verdict in the case sub judice on the basis of such an error
only if the instructions, taken as a whole, were so incorrect
or inadequate as to preclude the jury from reaching a
verdict based on the relevant law and facts. Ultimately,
the pertinent inquiry is whether the jury was misled to such
an extent as to be prevented from doing justice.
10
(Citations omitted).
Mathews v. Dousay, 96-858, p. 8 (La.App. 3 Cir. 1/15/97), 689 So.2d 503, 509-10
(alteration in original).
Here, the trial court instructed the jury on the Housley presumption, as
follows:
You may presume that the plaintiff's injuries were caused by this
accident, if, number one, she demonstrates that she was in good health
and symptom free prior to the accident; and, number two, she
demonstrates that, subsequent to the accident, symptoms of the alleged
injury appeared and have continuously manifested themselves
thereafter; and, three, she demonstrates that through evidence —
medical, circumstantial, or common knowledge — a reasonable
probability of causation between the accident and the injury claimed.
After reviewing the jury instructions as a whole, we find that the trial court
provided the jury with the correct principles of law corresponding to these issues,
including the Housley presumption, such that the jury was not misled by the
instructions nor prevented from dispensing justice. Adams v. Rhodia, Inc., 07-2110
(La. 5/21/08), 983 So.2d 798.
“In civil cases, a party who has the burden of proof must prove the fact in
issue by a preponderance of the evidence, and not by some artificially created greater
standard.” Talbot v. Talbot, 03-814, p. 9 (La. 12/12/03), 864 So.2d 590, 598. A
preponderance of the evidence may be proven by either direct or circumstantial
evidence “when, taking the evidence as a whole, such proof shows that the fact or
causation sought to be proved is more probable than not.” Lasha, 625 So.2d at 1005.
Defendant argues that the trial court erred in instructing the jury that Plaintiff's proof
of causation would be satisfied by “a reasonable possibility of causation between the
accident and injury claimed[,]” rather than “medical proof of injury causation|.]”
We disagree with this argument because the phrase used by the trial court comes
straight from Housley. Moreover, in Lasha, 625 So.2d at 1005, the supreme court
stated:
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[Because the word “medical” is susceptible of being construed as
referring only to expert medical testimony, the use of the phrase
“reasonable medical certainty” tends to preclude the trier of the facts
from considering evidence other than that of expert medical witnesses.
While expert medical evidence is sometimes essential, it is self-evident
that, as a general rule, whether the defendant’s fault, was a cause in fact
of a plaintiff's personal injury or damage may be proved by other direct
or circumstantial evidence. Jordan v. Travelers Ins. Co., 245 So.2d at
155; See Prosser, Torts, § 41, p. 269 (Sth ed. 1984) (“Where the
conclusion is not one within common knowledge, expert testimony may
provide a sufficient basis for it, but in the absence of such testimony it
may not be drawn. But on medical matters within common knowledge,
no expert testimony is required to permit a conclusion as to causation.”)
(Footnotes citing authorities omitted.) cf. Carpenter v. Nelson, 101
N.W.2d at 922, and authorities cited therein.
Besides, in Housley, the supreme court considered both medical evidence and
testimony establishing the wife’s physical condition before and immediately after
her fall in finding that the plaintiffs satisfactorily proved, by a preponderance of the
evidence, that the fall caused the premature rupture of her amniotic sac.
Accordingly, we find no error in the trial court’s Hous/ey instruction as given.
Assignment of Error Number Seven
In its seventh assignment of error, Defendant argues that the trial court erred
in admitting the testimony of David Barezyk, D.C., who was accepted as an expert
in the fields of accident reconstruction and biomechanics.
A trial court has great discretion in determining who qualifies as an expert and
whether expert testimony is admissible, and its decision admitting or excluding such
testimony will not be reversed on appeal in the absence of clear error. Mistich v.
Volkswagen of Ger., Inc., 95-939 (La. 1/29/96), 666 So.2d 1073. Although the abuse
of discretion standard is highly deferential to the trial court, it is not absolute.
The abuse-of-discretion standard is highly deferential to the trial
judge’s determination under consideration. See LCR-M Ltd. P’ship v.
Jim Hotard Prop., L.L.C., 13-0483, p. 9 (La.App. 4 Cir. 10/9/13), 126
So.3d 668, 675. An abuse of discretion generally results from a
conclusion reached capriciously or in an arbitrary manner. See Tugwell
v. Plaquemines Parish Gov’t, 14-0657, p. 5 (La.App. 4 Cir. 11/19/14),
154 So.3d 695, 699. “Arbitrary or capricious” means the absence of a
12
rational basis for the action taken. See A.S. v. D.S., 14-1098, p. 17
(La.App. 4 Cir. 4/8/15), 165 So.3d 247, 257. And a court necessarily
abuses its discretion if its ruling is based on an erroneous view of the
law. See Show & Tell of New Orleans, L.L.C. v. Fellowship Missionary
Baptist Church, 14-0843, p. 8 (La.App. 4 Cir. 12/17/14), 156 So.3d
1234, 1240.
Boudreaux v. Bollinger Shipyard, 15-958, 15-1345, p. 16 (La.App. 4 Cir. 6/22/16),
197 So.3d 761, 771.
Based on our review of Dr. Barezyk’s qualifying and traversal testimony, we
find no clear error in the trial court’s ruling accepting him as an expert in accident
reconstruction and biomechanics. Although he is a licensed chiropractor, Dr.
Barczyk testified that he is certified by the Institute of Police Technology and
Management in the field of motor-vehicle crash biomechanics, having taken over
300 hours of course work in that field. He further testified that he was certified by
the Accreditation Commission for Traffic Accident Reconstruction in 2016, in the
field of accident reconstruction. We also note that Dr. Barczyk has been upheld as
an expert in biomechanics by this court. See Copell v. Arceneaux Ford, Inc., 20-299
(La.App. 3 Cir. 6/9/21), 322 So.3d 886; Taylor v. Progressive Sec. Ins. Co., 09-791
(La.App. 3 Cir. 4/7/10), 33 So.3d 1081, writ denied, 10-1024 (La. 9/17/10), 45 So.3d
1044. Given the vast discretion accorded to the trial court in qualifying an expert
witness, we find no abuse of discretion in the acceptance of Dr. Barczyk as an expert
in these fields.
Assignment of Error Number One
In its first assignment of error related to the merits, Defendant asserts that the
trial court erred in refusing to grant its motion for summary judgment on the alleged
bad faith claim. Summary judgment is a procedural device properly used when there
is no genuine issue of material fact. Murphy v. Savannah, 18-991 (La. 5/8/19), 282
So.3d 1034; La.Code Civ.P. art. 966. Appellate courts review summary judgments
de novo using the same criteria that governs the trial court’s determination of
13
whether summary judgment is appropriate, i.e., whether there is any genuine issue
of material fact, and whether the movant is entitled to judgment as a matter of law.
Wright v. La. Power & Light, 06-1181 (La. 3/9/07), 951 So.2d 1058; La.Code Civ.P.
art. 966(A)(3).
In ruling on the motion, the trial court essentially determined that the motion
was premature given the nature and status of the case relative to Plaintiff's bad faith
claim. Defendant filed its motion on January 10, 2020, and subsequently, but prior
to the February 26, 2020 hearing on the motion, Plaintiff submitted additional
medical bills to Defendant on February 18, 2020. Thus, the trial court denied
Defendant’s motion, finding that it would not be appropriate to render judgment on
the bad faith issue because “the tenders and the treatment are ongoing.” The trial
court stated:
Well, it doesn’t matter what [Plaintiff] allege[s]. It matters what
the record shows. And, I mean, even in what you submitted, there are
disputes about it.
I mean, you submitted claims information where you
acknowledge that she has more expenses than this, but this is how you
evaluate it.
And, again, you know, apparently, she’s got ongoing treatment,
which means that, every time they submit a claim, another 30 days runs
for you to evaluate that claim. So I’m going to deny the motion for
summary judgment. I don’t think I can issue — or it would be
appropriate to issue the motion for summary judgment.
You are certainly going to be entitled to jury charges to the Jury
about what arbitrary and capricious is. And, you know, people can
make their arguments on both sides.
But I don’t think this is a situation where I can exclude that claim,
particularly because, apparently, the tenders and the treatment are
ongoing.
In so holding, the trial court noted that the supreme court had recently held
that an insured’s bad faith claim is subject to a ten-year prescriptive period. This
obviously refers to Smith v. Citadel Insurance Co., 19-52, p. 10 (La. 10/22/19), 285
14
So.3d 1062, 1069, in which the supreme court held, “Because we find an insurer’s
bad faith is a breach of its contractual obligation and fiduciary duty, we hold the
insured’s cause of action is personal and subject to a ten-year prescriptive period.”
We agree with the trial court’s denial of summary judgment at this stage of
the proceeding and find no error in its ruling. “[S]ummary judgment is appropriate
when all the relevant facts are marshalled before the court, the marshalled facts are
undisputed, and the only issue is the ultimate conclusion to be drawn from those
facts.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 29 (La. 7/5/94), 639
So.2d 730, 752. Considering that the facts pertaining to Plaintiff's bad faith claim
were still being developed as the case progressed, summary judgment was
inappropriate.
Further, we note that following the denial of Defendant’s motion, a trial on
the merits of the claim resulted in a jury verdict in favor of Plaintiff. Although
La.Code Civ.P. art. 966(A)(4) restricts the documents that can be considered in
support of or opposition to a motion for summary judgment, the supreme court, in
Hopkins v. American Cyanamid Co., 95-1088, p. 13 (La. 1/16/96), 666 So.2d 615,
624, held:
[O]nce a case is fully tried, the affidavits and other limited evidence
presented with a motion for summary judgment—later denied by the
district court—are of little or no value. Appellate courts should not rule
on appeal after a full merits trial on the strength alone of affidavits in
support of a motion for summary judgment that was not sustained in
the district court. In such cases, appellate courts should review the
entire record.
As Plaintiffs bad faith claim was tried on the merits, with Defendant having
appealed the denial of its motion for directed verdict, the jury’s verdict, and the
denial of its motion for JNOV on this issue, we are required to consider all
admissible evidence presented to the jury. Thus, we find that any decision as to the
15
correctness of the trial court’s denial of the motion for summary judgment is
subsumed therein.
Assignment of Error Number Three
In this assignment, Defendant argues that the trial court erred by not granting
a directed verdict at the close of Plaintiffs case on the issue of bad faith.
When reviewing a directed verdict, this court must consider the
evidence presented and determine whether reasonable persons could
have .. . reached a contrary verdict. Maturin v. Bayou Teche Water
Works, Inc., 20-257 (La.App. 3 Cir. 12/16/20), 310 So.3d 627, writ
denied, 21-68 (La. 3/2/21), [311] So.3d [1061}. A directed verdict
should only be granted when the evidence presented overwhelmingly
leads to one conclusion. /d.
A trial judge has much discretion in
determining whether or not to grant a motion
for directed verdict. McNeely v. Ford Motor
Company, Inc., 98-2139 (La.App. Ist Cir.
12/28/99), 763 So.2d 659, 664, writ denied,
2000-0780 (La. 4/28/00), 760 So.2d 1182. A
motion for directed verdict is appropriately
granted in a jury trial when, after considering
all evidentiary inferences in the light most
favorable to the movant’s opponent, it is clear
that the facts and inferences are so
overwhelmingly in favor of the moving party
that reasonable men could not arrive at a
contrary verdict. Pratt v. Himel Marine, Inc.,
2001-1832, p. 17 (La.App. 1st Cir. 6/21/02),
823 So.2d 394, 406, writs denied, 2002-2128
(La. 11/1/02), 828 So.2d 572.
However, if there is substantial
evidence opposed to the motion, ie,
evidence of such quality and weight that
reasonable and fair-minded jurors in the
exercise of impartial judgment might reach
different conclusions, the motion should be
denied, and the case submitted to the jury.
Pratt, 2001-1832 at pp. 17-18, 823 So.2d at
406. Furthermore, the propriety of a directed
verdict must be evaluated in light of the
substantive law underpinning the plaintiff's
claims. Legal sufficiency of the evidence
challenges, such as those presented by
motions for directed verdicts, are reviewed
on appeal de novo. Hail v. Folger Coffee
16
Company, 2003-1734, p. 10 (La. 4/14/04),
874 So.2d 90, 99.
Maturin, 310 So.3d at 634 (quoting Wright v. Bennett, 04-1944, pp. 15-
16 (La.App. 1 Cir. 9/28/05), 924 So.2d 178, 187-88).
“(T]he appellate court must determine if the record supports the
granting of a directed verdict, based not on a credibility determination
(a factual issue), but on a sufficiency of the evidence determination (a
question of law).” Davis v. Bd. of Sup’rs of Louisiana State Univ. and
Agr. Mech. Coil., 03-2219, p. 8 (La.App. 4 Cir. 11/17/04), 887 So.2d
722, 727, writ denied, 04-3086 (La. 2/18/05), 896 So.2d 40.
Fontenot v. UV Ins. Risk Retention Grp., Inc., 20-361, 20-362, pp. 7-8 (La.App. 3
Cir. 4/14/21), _ So.3d _, _, writ denied, 21-656 (La. 10/5/21), 325 So.3d 357.
Our analysis of the jury’s determination on the merits of whether Defendant
was in bad faith, as set forth below, and the trial court’s denial of Defendant’s motion
for JNOV establishes that the trial court did not abuse its discretion in denying
Defendant’s motion for directed verdict at the close of Plaintiff's case-in-chief.
Thus, we find this allegation of error to be without merit.
Assignments of Error Numbers Four and Six
In these assignments of error, Defendant argues that the jury was manifestly
erroneous in finding that it acted in bad faith in its handling of Plaintiff's UM claim.
It further argues that the trial court erred in denying its motion for JNOV on this
same issue. Basically, Defendant argues that Plaintiff only suffered a soft tissue
injury as a result of the January 14, 2014 accident, which should have resolved
within six months. It claims that her subsequent treatment and surgeries were all
related to injuries she suffered while skiing competitively as a teenager. Based on
these claims, Defendant argues that it was not in bad faith and that it was error for
the jury to conclude otherwise. We will address these assignments together.
The jury determined that Defendant was in bad faith and that it should have
tendered at least $325,000.00 to satisfy its obligation to Plaintiff, which finding,
Defendant asserts, was erroneous. The standard of review applicable to a jury’s
17
factual findings was set forth in Fontenot v. Patterson Insurance, 09-669, pp. 8-9
(La. 10/20/09), 23 So.3d 259, 267, as follows:
In reviewing the factual findings of a trial court, we are limited
to a determination of manifest error. Hill vy. Morehouse Parish Police
Jury, 95-1100, p. 4 (La.1/16/96), 666 So.2d 612, 615. It is well settled
that an appellate court may not disturb a jury’s finding of fact unless
the record establishes that a factual, reasonable basis does not exist and
the finding is clearly wrong or manifestly erroneous. Syrie v. Schilhab,
96-1027, p. 4 (La.5/20/97), 693 So.2d 1173, 1176. An appellate court
must do more than simply review the record for some evidence which
supports or controverts the findings. Stobart v. State of La., through
Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993), It must instead
review the record in its entirety to determine whether the factual
findings were clearly wrong or manifestly erroneous. Jd.
Significantly, the issue to be resolved is not whether the jury was
right or wrong, but whether its conclusion was reasonable. Id. Thus,
this Court, after a full review of the record, may not reverse reasonable
findings, even if we had weighed the evidence differently sitting as the
trier of fact. Siverd v. Permanent General Ins. Co., 05-0973, p. 3
(La.2/22/06), 922 So.2d 497, 500.
Defendant also urges that JNOV was warranted to overturn the jury’s verdict
on the issue of bad faith.
The use of JNOV is provided for by La. C.C.P. art. 1811. A
JNOV may be granted on the issue of liability or on the issue of
damages or on both issues. La. C.C.P. art. 1811(F). Article 1811 does
not specify the grounds upon which the district court may grant a
JNOV; however this court has set forth the criteria to be used in
determining when a JNOV is proper as follows:
[A] JNOV is warranted when the facts and inferences
point so strongly and overwhelmingly in favor of one party
that the trial court believes that reasonable persons could
not arrive at a contrary verdict. The motion should be
granted only when the evidence points so strongly in favor
of the moving party that reasonable persons could not
reach different conclusions, not merely when there is a
preponderance of evidence for the mover. The motion
should be denied if there is evidence opposed to the
motion which is of such quality and weight that reasonable
and fair-minded persons in the exercise of impartial
judgment might reach different conclusions. In making
this determination, the trial court should not evaluate the
credibility of the witnesses, and all reasonable inferences
or factual questions should be resolved in favor of the non-
moving party.
18
Joseph v. Broussard Rice Mill, Inc., 00-0628, pp. 4-5 (La.10/30/00),
772 So.2d 94, 99 (internal citations omitted). See also VaSalle v. Wal-
Mart Stores, Inc., 01-0462, p. 11 (La.11/28/01), 801 So.2d 331, 338-
39, The rigorous standard of JNOV is based upon the principle that
“when there is a jury, the jury is the trier of fact.” Joseph, 00-0628 at
p. 5, 772 So.2d at 99 (quoting Scott v. Hospital Serv. Dist. No. 1, 496
So.2d 270, 273 (La.1986)).
In reviewing a JNOV, an appellate court must first determine
whether the district judge erred in granting the JNOV by using the
above-mentioned criteria in the same way as the district judge in
deciding whether to grant the motion. VaSalle, 01-0462 at pp. 11-12,
801 So.2d at 339. Thus, the appellate court must determine whether the
“facts and inferences point so strongly and overwhelmingly in favor of
the moving party that reasonable persons could not arrive at a contrary
verdict.” Jd. at p. 12, 801 So.2d at 339 (quoting Joseph, 00-0628 at p.
5, 772 So.2d at 99). If the appellate court determines that reasonable
persons might reach a different conclusion, then the district judge erred
in granting the motion and the jury verdict should be reinstated. /d.
Trunk v. Med. Ctr. of La. at New Orleans, 04-181, pp. 4-5 (La. 10/19/04), 885 So.2d
534, 537 (alteration in original).
Essentially, we conclude that both allegations relate to the reasonableness of
the jury’s verdict finding that Defendant was in bad faith in its handling of Plaintiff's
claim. As this court may not disturb a jury’s finding of fact unless the record
establishes that a factual, reasonable basis does not exist for the finding and the
finding is clearly wrong or manifestly erroneous, this determination resolves the
issue of the trial court’s propriety in denying the motion for JNOV. Joseph v.
Broussard Rice Mill, Inc., 00-628 (La. 10/30/00), 772 So.2d 94.
An insurer, who arbitrarily, capriciously, or without probable cause fails to
pay a claim within thirty days of receipt of satisfactory proof of loss, shall be cast
with penalties in the amount of fifty percent of the amount due or $1,000.00,
whichever is greater, as well as reasonable attorney fees. La.R.S. 22:1982(B)(1 )(a).
“A ‘satisfactory proof of loss’ is that which is sufficient to fully apprise the insurer
of the insured’s claim.” Harris v. Imperial Fire & Cas. Ins. Co., 20-1323, p. 8
(La.App. 1 Cir, 7/21/21), 328 So.3d 1208, 1215, writ denied, 21-1282 (La.
19
11/17/21), 327 So.3d 994. According to the supreme court, “‘proof of loss’ is a
vehicle meant to advise an insurer of the facts of the claim and often takes the form
of an estimate of damages prepared on behalf of the insured.” Katie Realty, Ltd. v.
La. Citizens Prop. Ins. Corp., 12-588, p. 9 (La. 10/16/12), 100 So.3d 324, 330. As
the supreme court has pointed out, there are no formal requirements regarding what
constitutes proof of loss. Id.
As long as the insurer obtains sufficient information to act on the claim,
the manner in which it obtains the information is immaterial. Sevier [v.
U.S. Fid. & Guar. Co.| , 497 So. 2d [1380,] 1384 [(La.1986)]. Thus, a
satisfactory proof of loss occurs when the insurer has adequate
knowledge of the loss. Richardson [v. GEICO Indem. Co., 10-208
(La.App. | Cir. 9/10/10)], 48 So.3d [307,] 314. Whether and when a
satisfactory proof of loss was received is a question of fact. Jd.
Harris, 328 $o.3d at 1216.
In Louisiana Bag Co., Inc. v. Audubon Indemnity Co., 08-453, pp. 13-15 (La.
12/2/08), 999 So.2d 1104, 1114-15 (footnotes omitted), the supreme court
expounded on what constitutes actions that are arbitrary, capricious, or without
probable cause:
Turning now to what is arbitrary, capricious or without probable
cause, this court has previously stated in Reed v. State Farm Auto. Ins.
Co., 03-0107 (La.10/21/03), 857 So.2d 1012, that the New Oxford
English American Dictionary defines an “arbitrary” act as one “ ‘based
on random choice or personal whim, rather than reason or system,’ ”
and capricious as “ ‘given to sudden and unaccountable changes in
behavior.’ ” Jd. at 1020. The phrase “arbitrary, capricious, or without
probable cause” is synonymous with “vexatious,” and a “vexatious
refusal to pay” means “unjustified, without reasonable or probable
cause or excuse.” /d. at 1021. See also La. Maint. Servs., Inc. v. Certain
Underwriters at Lloyd’s of London, 616 So.2d 1250, 1253 (La.1993).
Both phrases describe an insurer whose willful refusal of a claim is not
based on a good-faith defense. Reed, 857 So.2d at 1021. See also La.
Maint., 616 So.2d at 1253.
This court has also stated that penalties should be imposed only
when the facts “negate probable cause for nonpayment.” Guillory v.
Travelers Ins. Co., 294 So.2d 215, 217 (La.1974). See also Crawford
v. Al Smith P. & H. Serv., Inc., 352 $0.2d 669, 673 (La.1977); McDill
y. Utica Mut. Ins. Co., 475 So.2d 1085, 1092 (La.1985). An insurer’s
conduct depends on the facts known to the insurer at the time of its
20
action, and this court has declined to assess penalties “when the insurer
has a reasonable basis to defend the claim and acts in good-faith
reliance on that defense.” Reed, 857 So.2d at 1021 (citing Block v. St.
Paul Fire & Marine Ins. Co., 32,306 (La.App. 2 Cir. 9/22/99), 742
So.2d 746, 752, 754). Specifically, when there is a “reasonable and
legitimate question as to the extent and causation of a claim, bad faith
should not be inferred from an insurer’s failure to pay within the
statutory time limits when such reasonable doubts exist.” Jd. (citing
Block, 742 So.2d at 752). In these instances, when there are substantial,
reasonable and legitimate questions as to the extent of an insurer’s
liability or an insured’s loss, failure to pay within the statutory time
period is not arbitrary, capricious or without probable cause.
While an insurer need not tender payment for amounts that are
reasonably in dispute, this court has explicitly found that “there can be
no good reason”--or no probable cause--for withholding an undisputed
amount. Hammett v. Fire Ass’n of Philadelphia, 181 La. 694, 160 So.
302, 304-05 (1935). Where there is a substantial, reasonable and
legitimate dispute as to the extent or amount of the loss, the insurer can
avoid the imposition of penalties only by unconditionally tendering the
undisputed portion of the claim. McDill, 475 So.2d at 1091. See also
LeBlanc v. Underwriters at Lloyd’s, London, 402 So.2d 292, 300
(La.App. 3 Cir.1981). This court held in McDill that an insurer cannot
“stonewall” an insured simply because the insured is unable to prove
the exact extent of his damages. McDill, 475 So.2d at 1091. Where the
exact extent of the damages is unclear, an insurer must tender the
reasonable amount which is due. Jd. We have defined the “amount that
is due” as “a figure over which reasonable minds could not differ.” Jd.
at 1092.
Defendant relied heavily on Plaintiffs prior and subsequent medical history
in handling her UM claim, and the jury was presented with an abundance of evidence
related thereto. Accordingly, a chronological examination of Plaintiff's entire
medical history, as established through trial testimony and the extensive
documentary exhibits introduced at trial, is essential to our consideration of
Defendant’s appeal.
Plaintiff, who had skied competitively from the age of four, crashed while
training on January 23, 2005, landing on her head and shoulder. Cervical x-rays
revealed a focal kyphosis at C4-5, with less than two millimeters of anterior
subluxation of C4 on C5, but no facture or facet abnormality. Although the
remaining pages of the emergency room report are missing, Plaintiff said that she
21
was diagnosed with a sprained neck, separated shoulder, and a concussion. She was
referred by her treating orthopedic physician for a spinal consultation with Dr. David
Verst.
On January 28, 2005, Dr. Verst, an orthopedic surgeon, diagnosed Plaintiff
with cervical instability at C4-5 and recommended that she obtain a “[s]econd
opinion before final treatment” of “[s]urgical intervention to include fusion C4-5[.]”
He noted “{m]Joderate paraspinal muscle spasm that is tender to palpation.” It was
his impression that the kyphosis revealed by the x-rays was caused by an old injury.
X-rays taken that day revealed 15° kyphosis on lateral flexion and a four millimeter
translation; a cervical MRI revealed no evidence of acute ligamentous injury. A
month later, cervical x-rays revealed a mild cervical kyphotic deformity on flexion
at C5, which was unchanged from the January 23, 2005 x-ray, and no significant
subluxation. Muscle spasm was included as a differential conclusion for the
findings.
On May 12, 2005, approximately three months post-accident, Plaintiff saw
Dr. Tracey Busby, her family physician, for an upper respiratory infection. In her
note, Dr. Busby stated:
This 15 yr old female presents for [chest and back discomfort], has a
cervical fx") from ski racing accident. Has been to see 5 MDs regarding
possible surgery. [S]ome recommend fusion, some say it’s stable,
going to see Dr. Floyd next for opinion. Does get some stingers down
both arms on occasion.
On June 22, 2005, five months post-accident, Plaintiff complained of numbness in
her arms after running and wanted to recheck her acid reflux. Dr. Busby noted that
Plaintiff's mother requested an order for a CT scan of her cervical spine:
Was seen by Dr. Floyd (consult in chart) and again recommended
surgery to allow sport participation. Father still refusing to consent to
6 . oe . . . .
According to Plaintiff’s medical records, she was never diagnosed with a fracture in her
cervical spine.
22
surg based on neurosurg recommendation to observe (that opinion was
reportedly given only from xr review, never examined or discussed
w/pt). Mother has a neurosurgeon in LA who will see her and consult
but he is requesting CT of cspine for better visualization of bones than
available on MRI.
Dr. Busby noted that Plaintiff had neuropathy in both arms, mostly in the C7
distribution, which was worse with exercise. Her assessment was cervicalgia,
neuropathy, and C4-5 instability. She encouraged Plaintiff to discuss the
recommended surgery with her father, stating, “She needs the surgery, she needs to
resume her life and the activities she loves.” A cervical CT scan performed that day
revealed a stable, mild kyphosis at C4-5, with no listhesis or slippage of the vertebra.
X-rays taken approximately one year after the accident revealed “[n]o acute
findings with stable appearance to very mild focal kyphosis at C4-5 level.” On
August 18, 2006, Plaintiff was cleared to participate in all school sports. Cervical
x-rays taken on March 8, 2007, revealed a stable, mild kyphosis at C4-5, with no
listhesis during flexion or extension. On May 15, 2007, while clearing Plaintiff for
right-knee surgery, Dr. Busby noted, “Ski accident 01/05 neck injury — C4/C5
ligament tear, discs slipped. Spent 9 months in neck brace.” She noted that Plaintiff
had full range of motion in her neck with extension, flexion, and lateral rotation.
On February 4, 2008, Plaintiff complained of bilateral soreness and swollen
glands on the right side of her neck. Dr. Busby diagnosed neck strain. On February
13, 2008, Plaintiff complained of lower-back pain and “some L sided neck pain, mild
tenderness to palp of the sternocleidomastoid insertion on L[.]” X-rays of her lumbar
spine were normal.
Plaintiff crashed again while skiing on March 23, 2008. The emergency room
records indicate that she complained of low back, neck, and left shoulder pain. An
x-ray of her lumbar spine was normal. X-rays of her cervical spine revealed focal
kyphosis distributed over the C4-5 and C5-6 disc levels, with anterolisthesis of one
23
millimeter at each level, similar to prior exams. A CT scan of her lumbar spine was
normal. Plaintiff was diagnosed with a chip fracture of the L3 vertebra by Dr. Verst
on May 5, 2008. He recommended physical therapy to stabilize her spine.
On May 7, 2008, Dr. Busby noted that Plaintiff “fh]ad another ski wreck in
March and has a ‘tear drop’ fracture in back-being followed by Dr. Verst, on rest for
now and will be starting PT soon, still has some pain w/palp over cervical process
fracture site but not w/movement[.]” A July 17, 2008 lumbar MRI revealed mild
disc desiccation at L3-4. Plaintiff was seen by Dr. Royce Pyette, a sports medicine
physician with Bridger Orthopedic and Sports Medicine, on August 29, 2008. Dr.
Pyette noted that Plaintiff complained “of lumbar pain after periods of prolonged
ambulation or with lifting[]” following her March 23, 2008 crash. After reviewing
the March 23, 2008 cervical x-rays and CT scan, as well as the July 17, 2008 lumbar
MRI, Dr. Pyette felt that Plaintiff's cervical strain from the 2005 accident had
resolved; that her lower-back pain from the L3 fracture had stabilized; and that she
had mild disc desiccation at L3-4, without focal herniation. Based on Plaintiff's
“stable and intact neurologic exam associated with her young age,” he recommended
“a conservative program to include core strengthening and stabilization and anti-
inflammatories.” He further noted:
Alisa also presents with specific questions regarding ski racing. She
has considered ski racing at MSU as a walk on athlete. I had a long
discussion with this patient regarding her current symptoms, expected
training at the NCAA level and NCAA guidelines. At this point, given
her current symptoms, we have agreed that she will most likely take a
redshirt year this year and attempt to walk on next season."! Both she
and her mother are in agreement with this plan.
"In Du Bois v. Board of Regents of University of Minnesota, 987 F.3d 1199, 1201 n.2 (8th
Cir. 2021) (citation omitted), the court stated, “As a NCAA student athlete, students may
participate in ten semesters of college athletics, but may only compete in four academic years. The
extra permitted year of participation without competition is often called a ‘redshirt’ year.”
24
Dr. Pyette’s November 25, 2008 note stated that Plaintiff was cleared to return to
skiing “[bJased on her history, physical exam which demonstrates a normal
neurologic exam and most recent MRI as well as her level of activity[.]”
On April 4, 2009, Plaintiff hit her head when her skies caught on a rock as she
skied off a fifteen-foot drop. She was seen at Montana State University’s Student
Health Service Walk-In Clinic (the MSU clinic) on April 6, 2009, complaining of
headache and a stiff neck. She was diagnosed with post-concussive syndrome. A
CT scan of the head was normal.
On June 15, 2009, Dr. Busby noted that Plaintiff had suffered another
concussion while skiing, but that she was not racing due to back pain. On July 22,
2009, she referred Plaintiff to Dr. Kenneth Brait for a neurology consultation for her
headaches. Dr. Brait diagnosed Plaintiff with post-concussion migraine syndrome
due to her concussions from skiing. On March 17, 2010, Plaintiff, who was seeing
Dr. Busby for sinus issues, complained that she was still experiencing back pain.
On May 6, 2010, Plaintiff underwent a physical at the MSU clinic as part of a
visa application. In the associated questionnaire, Plaintiff gave a history of a
teardrop fracture to her L3 vertebra and a ripped disc, as well as displaced discs at
C4 and C5. The examining physician’s note stated that Plaintiff has “[c]hronic back
pain w/ hx Fx L3 and disc damagef{,]” and noted “recurrent tingling extrem due to
‘slipped discs in neck’ decided not to do surgery, neck is ‘stable[.]’”
On August 11, 2010, Dr. Verst noted that Plaintiff was still experiencing back
pain and mild lower-extremity pain. He recommended an MRI of her lumbar spine.
The August 12, 2010 MRI revealed a minimal annular disk bulge and mild
desiccation at L3-L4, moderate degenerative changes to the facet joints at L4-5, and
a mild annular disc bulge and superimposed left paracentral disc protrusion at L5-
25
S1, with mild narrowing of the left neural foramen. Dr. Verst diagnosed Plaintiff
with discogenic pain on August 18, 2010, and recommended physical therapy.
On May 23, 2012, Dr. Busby noted that Plaintiff, who was seen for medication
refills, “[h]as continued to have headaches, for 6 weeks felt like post-concussion
headaches again, nothing helped, did not fall again. She has had 5 concussions ski
racing, she did ski a little this year but did not race.” On May 31, 2012, she noted
that Plaintiff was “contemplating returning to ski racing. [H]as had 5 concussions.
[H]ad a cervical fracture, mom not thrilled with this idea. [T]here is a club team at
college.” She further noted that Plaintiff had “some chronic back pain after ski
racing with some bulging discs.”
On February 25, 2013, Plaintiff, who was requesting blood work at the MSU
clinic, stated that her back flared up one to two times a month, which interfered with
exercise and skiing. The record noted Plaintiff's history of two herniated discs and
that she had undergone physical therapy twice without obtaining much relief.
Following graduation, Plaintiff was hired as an associate technical
professional by Halliburton. In a July 24, 2013 employment physical, she satisfied
the criteria in the musculoskeletal screening test for a female in her age group. In
the physical’s questionnaire, Plaintiff identified her past injuries as a C4-5
displacement in 2005, and an L3 teardrop fracture and disc strain in 2008. She also
checked that she previously or recently had experienced back pain, back injury, and
back problem that limits work. However, next to these items, she wrote,
“[O]ccasional pain no limits. [O]ccasional ibuprofen as needed.” Plaintiff further
stated that her activity level had been well above average the previous year; she
experienced back pain/back problems in the last month; lifting, sitting, and bending
made her back sore; she had previously undergone imaging studies of her back; her
26
legs and her back were the strongest and weakest parts of her body; and she last felt
her best in 2008-2009, and her worst in 2005.
Plaintiff began working for Halliburton in Lafayette in August 2013. On
November 4, 2013, while undergoing training in Dallas, she saw Dr. Kent Hamilton
for acid reflux. In his questionnaire, Plaintiff said that running and the outdoors
were her hobbies and that she had previously or was currently experiencing muscle
and back pain, numbness or tingling, and severe headaches. On December 23, 2013,
Plaintiffsaw Dr. Busby while she was in Idaho, who noted that Plaintiff was working
out five days a week and that she had started working for Halliburton on “offshore
drilling exploration techniques, Likes it.”
The accident at issue occurred on January 14, 2014, when Ms. Landry rear-
ended Plaintiff as she slowed down behind a left-turning vehicle. In the accident
report, Plaintiff stated:
Driving down Southpark rd., the car in front of me slowed down to turn
left. I slowed down + the car behind me rear ended me. We both pulled
over to inspect the damage + I called the police. I had felt a big jolt +
wearing my seatbelt got whipped.
Ms. Landry stated:
I was traveling on Southpark + they had a car in front of 4 Runner +
they did a sudden left turn and with tail light [sic] cover I could [sic]
tell if she had stuck brake and as I began to slow down my bumper came
into contact with her towing axel there was no damage other than on
my truck + a little brushing of the paint on her bumper.
Plaintiff sought treatment at Our Lady of Lourdes Regional Medical Center
shortly after the accident. She complained of moderate neck and lower back pain,
as well as pain in the occipital region of her head. X-rays of the cervical spine
revealed no abnormality, and x-rays of the lumbar spine revealed possible mild
lower lumbar spondylosis. A CT scan of the head revealed a calcification within the
27
right sylvian fissure of unknown significance. Plaintiff was diagnosed with cervical
and lumbar sprains and a head contusion.
Defendant’s records indicate that Plaintiff left a message with the adjuster
three days after the accident, stating that “she thinks she failed to tell [her] about her
back issue.”
Plaintiff saw Dr. Neil Romero, an orthopedic surgeon, on four occasions from
February 24, 2014-June 4, 2014. On February 24, 2014, she complained of neck
and back pain as a result of the accident, with pain radiating into her posterior
shoulder and buttocks. Dr. Romero noted:
She reports that she was involved in snow skiing accident at the age of
15. She injured her neck and her back at that time and was told that she
most likely needed cervical spine surgery. She did physical therapy and
her symptoms did get better. She reports that she really did not have
much neck or back pain immediately preceding this motor vehicle
collision but now her neck symptoms are rather severe followed by her
back symptoms, as well as leg symptoms. She currently works as an
engineer for Halliburton and presents today for evaluation. She has
continued to work despite her symptoms.
He noted that her x-rays revealed a mild loss of lordosis, mainly at C4-5 and possibly
at C5-6, which was regained with extension, as well as “no evidence of gross
instability or advanced degenerative changes.” Based on the severity of Plaintiff's
accident and the severity of her symptoms and history, his initial diagnosis was
severe cervical and lumbar strains. However, he also noted her lower extremity
radiculopathy.
A February 25, 2014 cervical MRI revealed an extremely slight annular bulge
at C4-5; a minimal annular bulge with a superimposed focal right paracentral disc
protrusion with annular fissure at C5-6; and a mild annular bulge at C6-7. All three
levels had minimal left uncinate’ hypertrophy and foraminal stenosis. The lumbar
* Hook shaped.
28
MRI differed from Plaintiff's August 12, 2010 MRI in that it revealed mild bilateral
hypertrophic facet arthrosis, with ligamentum flavum thickening and trefoil
deformity of the thecal sac at L4-5, and the presence of an annular fissure at the disc
protrusion at LS-S1. Based on these findings, Dr. Romero recommended physical
therapy.
On March 11, 2014, Defendant’s records indicate that a message was left
asking Plaintiff to call the adjuster in regard to her med-pay claim. According to a
March 19, 2014 invoice from John Wayne’s Body and Paint Shop, Inc., the repairs
to Plaintiff's vehicle cost $2,842.48, which included the replacement of the metal
trailer hitch.
At Plaintiff's fourth and final appointment on June 4, 2014, Dr. Romero noted:
[Plaintiff] returns to see me today still complaining of neck and back
issues. She has undergone an extensive amount of physical therapy
with some temporary relief. Overall she feels like she is improved but
she is not where she thinks she needs to be. She comes in today for re-
evaluation. She denies bowel or bladder symptoms or constitutional
symptoms, and once again, she wants to discuss being released to do
water survival which she appears very hesitant to do.
Dr. Romero recommended that she be evaluated by Dr. Kevin Lasseigne, an
interventional spine physician. He “assured her that [he did] not see anything from
a surgical perspective on either her neck or her back at this time.” He also cleared
her to participate in water survival training after approval was obtained from her
physical therapist. Dr. Romero stated:
I do not see anything from a structural or mechanical standpoint in her
neck or her back that should limit her other than her perception of pain.
I did explain this to her in great detail. I made her no reassurances with
the fact that her pathology might not worsen, I just reassured her that at
this time I do not see significant pathology on either her cervical or
lumbar spine MRI. So, at this point we went ahead and cleared her to
do water survival |.]
The training, which was required by Halliburton, consisted of the use of swing ropes
in transferring from boat decks to platforms and vice versa; a sea survival module;
29
United States Coast Guard personal survival training; and helicopter underwater
egress from a helicopter simulator. The last-three described activities involved
swimming and treading water in full clothing; performing drills while wearing a life
jacket; practicing different modes for entering and exiting water; donning an
immersion suit in and out of water and climbing on an inverted raft and reverting it
to the upright position; and exiting a submerged, flipped helicopter simulator by
unclipping the seatbelt and swimming out of the window.
On June 9, 2014, Defendant’s records indicate that a message was left for
Plaintiff regarding her med-pay claim. The note stated that in the event Plaintiff did
not contact the adjuster regarding this claim, her file would be closed at the end of
May 2014. It further indicated that Plaintiff called later that day and told the adjuster
“she is still going to PT for her injs and is going through [claimant carrier]. She said
I can go ahead and close out the file. [S]he will let me know if something comes
up[.]”
Plaintiff was treated by Dr. Lasseigne from June 18, 2014—November 3, 2015.
On June 18, 2014, he noted her immediate onset of neck and lower back pain
following the accident, and although she had a history of this type of pain, she was
asymptomatic at the time of the accident. Dr. Lasseigne diagnosed Plaintiff with
cervical pain related to C6 radiculitis and C5-6 disc herniation with annular fissure,
and lumbar pain likely caused by bilateral S1 radiculitis and L5-S1 disc herniation
with annular fissure. He initially treated Plaintiff with medication and physical
therapy, referring her to Sellers Physical Therapy, LLC.
On August 18, 2014, Kevin Sellers noted Plaintiff's neck and back pain and
that she was diagnosed with displaced C4-5 after a 2005 ski accident, after which
she was in a neck brace for nine months and did physical therapy. She reported that
her lumbar pain began after a 2008 ski accident, from which she suffered a teardrop
30
fracture of the L3 vertebra and a partial disc herniation. Plaintiff reported that her
condition was okay until the January 14, 2014 accident, which “flared everything
3
up.
Although Plaintiff reported that her overall condition had improved forty
percent by October 7, 2014, Dr. Lasseigne noted that she plateaued thereafter, after
which he administered bilateral $1 nerve-root injections on November 24, 2014, and
May 8, 2015. These injections provided no pain relief to Plaintiff.
On December 30, 2014, Plaintiff filed suit against Ms. Landry, State Farm,
and Defendant.
According to a job description, submitted for a December 1, 2015 medication
review related to Plaintiff's use of prescription medication while working,
Halliburton classified her position as very heavy, heavy, or medium duty. The
position required her to work offshore and involved the handling of flammable or
hazardous materials, the operation of cranes or forklifts, and the assemblage,
installation, or repair of systems used under high pressure. The position also
exposed Plaintiff to hazards caused by moving mechanical parts, electrical shock,
burns or radiant energy from explosives, and toxic chemicals. Plaintiff was cleared
to return to work on December 2, 2015, but was restricted from operating a forklift
while taking the specific medication.
On January 28, 2015, Defendant’s records indicate that Plaintiff filed an
uninsured motorist suit and that Ms. Landry and State Farm were also named as
tortfeasors. Defendant answered Plaintiffs suit on February 15, 2015.
On May 20, 2015, Dr. Lasseigne changed Plaintiff's medication and
recommended a Pilates-based physical therapy. He further noted that “[i]n the event
symptoms persists, we may have to consider a surgical consultation given that we
have exhausted many conservative treatment options.”
31
A July 22, 2015 lumbar MRI differed from the February 25, 2015 MRI in that
it demonstrated a mild progression in the narrowing of the spinal canal and the
thickening of the ligamentum flavum at L3-4. On August 4, 2015, Plaintiff
complained of axial low back pain, which radiated into her legs, as well as neck and
bilateral scapular region pain. Dr. Lasseigne’s impression was unchanged except to
note that Plaintiff had experienced some improvement with physical therapy, but
none from the injections. He noted:
At this point I do think we can go ahead and continue on with the
physical therapy, as it is providing her some relief.
We talked about where to go from here. I do not think injection therapy
is the answer anymore for us going forward. I do think that surgery
would likely end up in her having a fusion. However, I am not sure that
this would be the case, as I am not a surgeon. However, given that she
has greater back pain than she has leg pain I am concerned that this
would be the case.
We talked about PRP treatment into the disc. I did give her the name
of Marco Bodor in Napa California. She will look into this. I will see
her back in clinic in two months once she has looked into some of the
treatment in terms of the PRP treatment and has had a chance to
participate in therapy and we will consider going from what our options
are at that point. In addition we did give her a prescription for Trezix
today. We did consider trigger point injections next time she comes in
the office for her neck.
On August 31, 2015, Plaintiff emailed copies of her medical bills, totaling
$23,047.78, to Defendant for payment under her med-pay coverage.
On September 15, 2015, Dr. Lasseigne noted that Plaintiffs pain “comes and
goes depending on her activity level.” In addition to continuing her physical therapy,
Dr. Lasseigne recommended a neurosurgical consultation with Dr. Dani Bidros for
her lumbar issues.
Defendant tendered payment of $22,956.26 to Plaintiff on September 28,
2015, under her med-pay coverage. The accompanying letter stated that the
difference between the amount presented and that tendered was due to “non-related
32
prescriptions from Walgreens and the difference in medical bills from Louisiana
Orthopaedic Specialists.”
On October 6, 2015, Dr. Bidros noted Plaintiff's persistent complaints of low
back pain and pain radiating into her legs and feet. Plaintiff relayed that she had
previously experienced low back pain following her 2008 ski accident, which had
somewhat resolved. He further noted that physical therapy had provided her
mobility, but not pain relief and that her pain had been aggravated by injections.
After reviewing Plaintiff's lumbar MRI, Dr. Bidros found that her degenerative
changes were “worst at L5-S1 with modic changes and disc bulging.” He
recommended that she undergo an anterior lumbar interbody fusion at L5-S1, which
he thought “would give her reasonable chance for improvement though not
guaranteed.”
On November 3, 2015, Dr. Lasseigne noted that Plaintiff's lower back issues
had not improved with therapy and that she was complaining of neck and right
parascapular pain. In addition to a cervical MRI, he recommended that Plaintiff
consider a total disc replacement at LS-S1. The findings of the December 4, 2015
cervical MRI were similar to the February 25, 2014 MRI, with the exception that the
superimposed small disc protrusion at C5-6 was no longer present.
On December 15, 2015, Defendant tendered $2,043.74 to Plaintiff, which
represented the remaining policy limits of her $25,000.00 med-pay coverage.
Plaintiff was laid off by Halliburton in March 2016.
Defendant received Ms. Landry’s affidavit confirming that her insurance
coverage through State Farm was the only coverage she had on her vehicle at the
time of the January 14, 2014 accident.
On April 20, 2016, Defendant unconditionally tendered $20,518.26 to
Plaintiff, its first UM tender. The accompanying letter stated:
33
According to my file, your client has $26,518.26 in related
medical bills. She has complaints of back and neck pain after the
accident. However, your client has a long history of back and neck
injuries and has continued to work offshore and travel in the two plus
years since the accident. She was even able to undergo the rigorous
physical training required for her current job.
That being said, your client received medical treatment through
November 2015, about 22 months post-accident. Accordingly, we have
evaluated the claim at approximately $34,0000.00 plus medicals. This
evaluation places total quantum at $60,518.26.
As you know, we receive a credit for the $15,000.00 underlying
limits. Pursuant to Louisiana case law and our policy language, we also
receive a credit for the $25,000.00 we have paid in med-pay benefits,
for a total credit of $40,000.00. Accordingly, we hereby make this
unconditional tender of $20,518.26 ($60,518.26 minus $40,000.00).
Please let me know if your client will accept this check in full
and final settlement of her claims against my client or if she will
continue with litigation. Either way, my client believes this is a very
fair evaluation of the claim and we will not make any additional tenders,
absent some new evidence that would warrant such.
On June 1, 2016, an order of partial dismissal was rendered by the trial court,
dismissing Plaintiffs claims against Ms. Landry and State Farm.
On June 8, 2016, Plaintiff, who was unemployed and on Medicaid, was seen
by Michael Schweid, a physician assistant to Dr. John Barker, a Denver, Colorado
orthopedic surgeon. At the time, Plaintiff still lived in Louisiana, but planned to
move to Denver. PA Schweid noted:
Ms. Durkheimer is a pleasant 26 year old female with cervical and low
back pain. Her cervical pain started in January of 2005 after a ski
accident. She states that she had ligament instability at C4-5. Her back
pain started in March of 2008 and she reinjured it in January of 2014.
At this time, she states her back pain is significantly more debilitating
than her cervical pain. She denies any significant leg symptoms. She
described her back pain as stabbing, stiff and muscle spasms. The pain
is intermittent. She does have occasional radiation of her back pain into
her legs. She has some subjective weakness associated with her pain.
He further stated:
Based upon her MRI there is no significant etiology for her pain.
However, given the report of ligament . . . injury after a skiing accident
flexion/extension films of cervical spine would be warranted to
34
evaluate for instability. Concerning her lumbar spine. It may be of help
to her to have facet injections at L3-4 and L5-S1.
Plaintiff next saw PA Schweid on January 23, 2017, at which time her cervical
pain was significantly worse than her lumbar pain. Although cervical x-rays
revealed no subluxation or dynamic instability with flexion or extension, PA
Schweid noted kyphosis at C4-5, with a slight anterolisthesis that was reduced with
extension. He diagnosed Plaintiff with cervical spondylosis, cervical
spondylolisthesis, and cervical kyphosis and recommended physical therapy and
injections, Plaintiff was administered bilateral facet-joint injections at C4-5 on
February 17, 2017, and at C5-6 on March 10, 2017, neither of which relieved her
pain.
On March 6, 2017, Defendant tendered $3,891.73 to Plaintiff, its second UM
tender. The accompanying letter stated:
This additional tender represents the additional medical bills now
documented in our file since the tender we made under cover letter
dated April 20, 2016. Please let me know if your client will accept this
check in full and final settlement of her claims against my client or if
she will continue with litigation.
On April 5, 2017, Plaintiff saw Dr. Barker for the first time. He noted:
This is a very pleasant 27-year-old female with a long history of neck
pain. She was initially involved in a severe ski accident as a
competitive ski racer in 2005. In the ski accident, she landed on her
head and her right shoulder. She had a right a.c. joint separation and
ligamentous damage to her neck. She was treated in a cervical collar
for 9 months. She had extensive physical therapy after the period of
immobilization and her neck pain was under fair control, but she still
had some degree of neck pain and interscapular pain and trapezius pain.
She was then involved in a severe motor vehicle accident in 2014 which
was a high impact rear end collision. Since the motor vehicle accident,
the patient has had severe and unrelenting pain, cervical-induced
headaches as well as bilateral trapezius pain. She denies any radicular
symptoms in her arms. She has noticed that when she works at a
computer for extended periods of time that she has severe posterior
pain.
35
Dr. Barker noted that Plaintiff's cervical x-rays revealed kyphosis with some disc
space collapse at C4-5. An April 13, 2017 cervical MRI revealed mild reversal of
cervical lordosis and mild right apical curvature of the lower cervical spine. It
further revealed minimal posterior bone spurs and minimal hypertrophy of the
uncovertebral joints at C4-5, C5-6, and C6-7, as well as minimal hypertrophy of the
uncovertebral joints at C3-4 and C7-T1. On May 31, 2017, Dr. Barker diagnosed
Plaintiff with cervical instability at C4-5 with kyphosis and functional stenosis. He
noted:
The MRI was negative for any adjacent level disease or severe disc
herniations. The majority of her symptoms are coming from her
cervical instability at C4-5. She has had the symptoms for 11 years and
has failed extensive nonoperative management. We will plan on a C4-
5 ACDF.
Dr. Barker performed an ACDF at C4-5 on June 30, 2017. Plaintiff also underwent
bilateral lumbar facet joint injections on August 2, 2017, which failed to alleviate
her pain.
On September 14, 2017, Defendant tendered an additional $30,000.00 to
Plaintiff on her UM claim, its third UM tender. The accompanying letter stated:
Since our last tender, it appears your client has incurred approximately
an additional $14,000.00 in medical bills. Even though it is
questionable that these bills are even related to the subject accident, we
have considered them as part of this tender. In addition, since our first
tender, your client has treated for an additional 16 months, from
November 2015 to March 2017. Accordingly, included with this tender
is an additional $16,000.00 in general damages.
On October 2, 2017, PA Schweid cleared Plaintiff for yoga and exercise, and
restricted her to lifting no more than twenty pounds and from performing squats or
any activity that would strain the cervical spine. He further noted that Plaintiff had
fallen that day while dog sitting, but that she denied arm pain or a significant increase
in her neck pain due to the fall.
36
On October 27, 2017, Plaintiff was examined by Defendant’s expert, Dr.
Henry J. Roth, an internist. After reviewing her medical records from December
1989-March 2017, and the depositions of Plaintiff, Mr. Sellers, Dr. Romero, Dr.
Lasseigne, and Ms. Landry, Dr. Roth issued opinions related to Plaintiffs accident-
related claims. While he could not rule out that the accident caused a cervical strain,
he opined that Plaintiff's lower back complaints immediately after the accident were
not medically probable, that her cervical and lumbar spine pathologies were not
accident-related, and she had no residual symptoms related to the accident.
As to her medical status following the accident, Dr. Roth opined that Plaintiff
should have recovered from the cervical sprain by June 2014, and he related her
ongoing cervical and lumbar issues to her unresolved ski injuries as reflected in her
2005 and 2008-2010 medical records. However, Dr. Roth noted that the absence of
medical records documenting treatment for these issues between 2009-2014,
supported Plaintiff's claim that she was asymptomatic prior to the accident. He
further opined that Plaintiff's subjective complaints of pain were consistent with a
medically probable somatic symptom disorder.
On January 17, 2018, Plaintiff complained to PA Schweid of increased neck
and lower-back pain, caused, in part, from yoga.
On May 21, 2018, Plaintiff saw Dr. Sanjay Jatana, an orthopedic surgeon.
Noting her complaints of recurrent cervical and lumbar pain, with referred pain into
her lower extremities, he stated:
She sustained a motor vehicle accident in 2014 in Louisiana. She was
rear-ended at about 40-50 miles per hour. Her past medical history as
a biomedical engineer is significant in that she had an initial ski
accident in 2005. She initially got better with conservative treatment
and was doing well until she sustained the motor vehicle accident in
2014. She was essentially asymptomatic and was not having any
significant treatment based on her history until this motor vehicle
accident in 2014, so she was completely recovered from the 2005
injury.
37
Dr. Jatana recommended bilateral C5-6 facet-joint injections and thoracic and
lumbar MRIs. In diagnosing Plaintiff with cervicalgia, disc degeneration at C5-6,
dorsopathies in the thoracic region, and intervertebral disc degeneration in the
thoracic and lumbosacral regions, he stated:
Due to the fact that she has had recurrent symptoms within one year of
her cervical surgery, suggests that maybe this level was part of the pain
process and now has surfaced due to it being next to a fusion.... We
discussed radiofrequency ablation as an option, cervical discography
for diagnostic testing, and future treatment options.
On July 9, 2018, Defendant amended its answer to allege, as an affirmative
defense, the sudden emergency doctrine. On December 14, 2018, Plaintiff amended
her suit to allege Defendant’s bad faith.
On October 17, 2018, Dr. Jatana noted that although Plaintiff's symptoms had
improved somewhat with physical therapy, her pain had not improved. He further
noted that she “had a recent fall down stairs on 10/14/18 which has aggravated her
symptoms. Her symptom description is essentially the same as it was prior.” Dr.
Jatana noted that Plaintiff's lumbar MRI was “consistent with a degenerative tear
and annular tear with a disc protrusion at L5-S1[,]” while her thoracic MRI revealed
mild, but not significant, degenerative changes. Dr. Jatana’s assessment at that time
was disc degeneration at C5-6 and intervertebral disc displacement in the
lumbosacral region. He recommended bilateral transforaminal injections at C5-6
and L5-S1.
On January 7, 2019, Plaintiff emailed an updated medical expense summary
to Defendant, including copies of her medical bills through October 17, 2018,
totaling $152,193.68.
On January 14, 2019, Dr. Jatana, after noting that Plaintiff had gained no relief
from the injections, recommended a C3-4, C5-6, and C6-7 discogram to determine
which disc was the cause of her ongoing cervical pain. The January 31, 2019
38
discogram revealed “[d]efinite discogenic pain at C5-6 with right posterolateral
annular tear.”
On March 12, 2019, Plaintiff sent Defendant a follow-up to her January 7,
2019 email.
On May 13, 2019, based on Plaintiff's age and single-level problem, Dr.
Jatana recommended that she undergo an anterior cervical discectomy and disc
arthroplasty at C5-6, to replace the C5-6 disc with an artificial disc. He noted that
the transforaminal injections at C5-6 administered on November 8, 2018, provided
Plaintiff with only temporary relief. On May 29, 2019, he noted that “[a] new
cervical MRI is consistent with a degenerative disc with stenosis at C5-C6 with right
severe stenosis in the foramen.” On June 12, 2019, Dr. Jatana noted that Plaintiff's
health insurer had denied the surgery. On July 3, 2019, he again noted that the
surgery was the best option for Plaintiff based on her age, and he recommended a
“third level appeal” with Plaintiff's health insurer, if possible. In the meantime, he
recommended a repeat course of physical therapy and to consider an intralaminar
epidural steroidal injection.
On August 7, 2019, Plaintiff informed Defendant that she was “preparing for
her second neck surgery.” Attached to the email were surgical estimates related to
the anterior cervical discectomy and arthroplasty at C5-6, totaling $11,388.00.
On September 16, 2019, Dr. Jatana noted Plaintiff's worsening neck, upper
back, and upper extremity pain. He further noted that she wished to proceed with
an ACDF at C5-6. After obtaining Plaintiff's consent, Dr. Jatana performed the
surgery on December 13, 2019.
On January 10, 2020, Defendant moved for summary judgment on the issue
of bad faith.
39
During Ms. Henschel’s January 31, 2020 deposition, Defendant’s counsel
acknowledged that she had received, and submitted to Defendant, Plaintiff's updated
medicals. She further acknowledged that Defendant was aware of Plaintiff's
December 13, 2019 surgery.
On February 18, 2020, an email from Plaintiff to Defendant stated, “On
January 10, 2020, we sent you updated medicals from Dr. Sanjay Jatana, M.D.
regarding the recently performed second cervical [discectomy] and fusion at Rose
Medical Center. Today, we received the bills from Rose Medical Center, including
pre-op and for overnight observation.”
At the conclusion of the February 26, 2020 summary-judgment hearing,
Defendant orally moved for permission to add a medical expert to its pre-trial
witness list since Dr. Roth had been diagnosed with cancer. The trial court granted
Defendant’s motion.
Trial Testimony
The testimony introduced at trial is summarized as follows in the order it was
presented to the jury:
Plaintiff, who skied competitively for fifteen years, stated that she suffered
two major crashes and five major concussions while skiing. Her first major crash
occurred on January 23, 2005, when she fell and landed on her head and shoulders
and was diagnosed with a separated shoulder, a sprained neck, and a concussion.”
The multiple doctors she saw after this accident were divided on the treatment she
should receive. Some recommended that she undergo surgery to fuse her neck
because of potentially instability, while others opined that she did not require surgery
because her neck was stable. Plaintiff stated that her parents were going through a
” Plaintiff was fifteen-years old.
40
divorce and could not agree on her treatment. She said that she was eventually
treated by a Dr. Johnson in California, who recommended that she give her neck
time to heal by wearing a neck brace. She said after wearing a neck brace for nine
months and undergoing therapy, she was cleared to ski approximately one year later.
Plaintiff's second major crash occurred on March 23, 2008, after which she
was diagnosed with a fracture of her L3 vertebra, a ruptured disc, a concussion, and
strained hip flexor and groin muscles. Although she acknowledged that she
experienced some neck pain after this accident, she said that it quickly resolved.
Plaintiff testified that no surgery was recommended following this accident, and her
lumbar injury stabilized over time. She said that while she occasionally suffered
lower back pain following this injury from using improper lifting techniques or
lifting heavy objects, her pain quickly resolved with ibuprofen.
Plaintiff testified that she received no treatment for neck pain between 2008
and 2013, and that she remained active while in college by working and participating
in outdoor activities such as skiing, hiking, backpacking, camping, kayaking, and
running, as evidenced by photographs introduced into evidence. These showed
Plaintiff biking along a beach in 2009; backpacking during a three-day backpacking
trip in 2010, during which she carried a fifty-pound backpack, slept on the ground,
and free-climbed on the side of a mountain; white-water rafting and backpacking in
2011; working on water and sanitation projects in Kenya for six weeks and three
months in 2010 and 2013, respectively, and climbing to the top of Mount
Kilimanjaro in 2013; and running in a 10-K race and skiing in 2013. Plaintiff also
studied in Spain for one semester during college.
Plaintiff testified that she suffered a concussion while skiing on April 4, 2009,
when she fell on her head. Although she also complained of a stiff neck, she stated
that the treatment she received was for her concussion.
4]
Plaintiff testified that after being conditionally hired by Halliburton, she easily
satisfied the musculoskeletal portion of the employment physical on July 24, 2013.
She stated that in the questionnaire, she noted that she had suffered a C4 and C5
displacement in 2005, and a L3 teardrop fracture and disc strain in 2008. While
admitting that she checked boxes for back pain, back injury, and back problem that
limits work, she qualified these entries by writing that she was not restricted by her
occasional back pain and that she took ibuprofen as needed. Plaintiff further pointed
out that her activity level the previous year had been above average. She maintained
that she would not have accepted Halliburton’s job offer if she had been physically
limited by her neck and lower back.
Plaintiff testified that after starting with Halliburton in August 2013, she
completed a one-month orientation in Lafayette and a three-month training program
in Dallas, including time spent on a simulation rig. She returned to Lafayette on
January 4, 2014. Regarding the accident, she stated that the impact caused her head
to slam forwards and then backwards into the headrest. She said that she experienced
immediate pain in her head, neck, upper shoulders, and lower back, and was
diagnosed with a head contusion and neck and back strains. Repairs to her vehicle
cost $2,842.48.
After taking three days off, Plaintiff testified that she continued working
despite experiencing unrelenting pain, which was not alleviated by ibuprofen, ice,
or heat. She stated that she was initially treated by Dr. Romero, who treated her with
physical therapy. She was then treated by Dr. Lasseigne, who treated her with
physical therapy, injections, and medication and restricted her from lifting over ten
pounds. She stated that the medication did not relieve her pain. Dr. Lasseigne
referred her to Dr. Bidros, who recommended that she undergo fusions in her lower
back.
42
Plaintiff testified that she informed both Dr. Romero and Dr. Lasseigne about
her prior neck and back injuries. She admitted that she did not tell Dr. Romero that
her neck was rendered unstable by the 2005 ski accident, but only because she had
recovered from the accident, was cleared to return to skiing approximately one year
later, and had, in fact, continued to ski competitively.
Plaintiff denied that she reinjured herself while undergoing the water-survival
training required by Halliburton. She stated that while she was hesitant to do the
training, Dr. Romero thought she would be okay and cleared her to participate. She
also denied that the training was rigorous or traumatic. She said that while she
successfully completed the training, she was very sore afterwards, but that her pain
returned to baseline a few days later.
Plaintiff testified that she moved to Denver in July 2016, after she was laid
off in March 2016. She acknowledged that she was involved in a second motor
vehicle accident in November 2016, but testified that she was only slightly sore after
the incident, which resolved in less than a week. She testified that it cost $3,032.83
to repair her vehicle after this incident.
Plaintiff testified that she began seeing Dr. Barker, who told her at the time
that conservative treatment would not help and recommended that she undergo an
ACDF at C4-5. She underwent injections prior to the surgery as required by
Medicaid, but they provided no pain relief. She consented to the surgery because of
her increased pain, and while the June 30, 2017 surgery initially provided some
relief, her pain returned to its post-accident level after she was cleared for and tried
yoga. She admitted that she told PA Schweid that she tripped and fell while walking
a dog on October 2, 2017, but stated that this incident did not worsen her condition.
Plaintiff testified that she began seeing Dr. Jatana in May 2018, after she was
employed and on health insurance. He recommended cervical injections, which only
43
increased her pain. She also acknowledged that on October 17, 2018, she told Dr.
Jatana that she had slipped and fallen while on stairs. She explained that she mostly
fell on her elbow and that any pain caused by the fall had resolved within a day.
Dr, Jatana recommended an anterior cervical discectomy and C5-6
arthroplasty after a discogram determined that it was the cause of her pain. Plaintiff
explained that he recommended the arthroplasty in order to limit her need for future
fusions. She claimed that after the surgery was denied by her health insurer, she
obtained cost estimates and had her counsel reach out to Defendant in August or
September 2019, regarding the possibility of settling her UM claim. She stated that
when Defendant failed to respond to this request, Dr. Jatana performed an ACDF at
C5-6 on December 13, 2019.
Although she was experiencing no pain before the January 14, 2014 accident,
Plaintiff testified that she experienced an immediate onset of constant, ongoing pain
thereafter. Despite her pain, she continued working until she was laid off by
Halliburton. She tried to continue her pre-accident activities, such as exercising,
jogging, and kayaking, but was unable to engage or participate as before the
accident. She attempted to ski in Idaho in December 2014, but had to stop after two
runs because of pain. She attempted to ski on March 17, 2017, before her first
surgery because she did not know if she would be able to ski again afterwards. She
admitted that she hiked a 14,000-foot mountain in Colorado, called a fourteener, but
that she drove up 10,000 to 12,000 feet before hiking to the summit on a trail that
varied in difficulty, during which she carried no weight.
Plaintiff acknowledged that she submitted no medical bills to Defendant until
after she was represented by counsel, stating that during that time she was focused
on getting better. She denied telling the adjuster to close her med-pay claim on April
9, 2014, stating she would not have closed her claim as she was still undergoing
44
physical therapy for her injuries. Any discussion about closing the claim may have
referred to her property claim as she was relying on State Farm to repair her vehicle.
It was Dr. Romero’s opinion that the January 14, 2014 accident caused
Plaintiff's symptoms. Dr. Romero testified that Plaintiff informed him that she had
injured her neck and back skiing in 2005, for which surgery was recommended but
not performed, and that her symptoms had improved with physical therapy. She told
him that she was experiencing no significant neck or back pain prior to the accident,
and she related her current symptoms to the accident. Dr. Romero found Plaintiff to
be credible in reporting her complaints and prior history, and he saw no evidence
that she exaggerated her complaints.
Dr. Romero agreed that the emergency room diagnosis was initially indicative
of a soft-tissue injury, a typical presentation immediately after an accident, but he
stated that Plaintiff's condition had evolved by the time he saw her one month after
the accident. However, he stated that her condition had become chronic by the time
he referred her to Dr. Lasseigne in June 2014. He explained that he did not
recommend that she undergo surgery because conservative treatment options were
still available.
Dr. Romero testified that Plaintiff's cervical x-rays revealed a mild loss of
lordosis at C4-5 and C5-6, but no instability. He stated that kyphosis is an incorrect
curvature of the spine, whereas instability is an abnormal motion of the spine,
usually 3.5 millimeters or greater, as established through flexion and extension x-
rays. He further testified that a finding of kyphosis does not require a concurrent
finding of cervical instability.
Based on Plaintiff's x-rays, Dr. Romero believed that the 2005 diagnosis of
instability was incorrect. He also believed that the surgical recommendation was
incorrect based on her recovery without the surgery. He would not have
45
recommended surgery based on a diagnosis of mild kyphosis, especially if the
patient was asymptomatic. He disagreed that Plaintiff was a surgical candidate prior
to this accident as she was asymptomatic and her flexion and extension x-rays
revealed no evidence of instability even though her cervical MRI revealed disc
bulging at three levels.
Dr. Romero testified on cross examination that whether Plaintiff suffered an
aggravation of or simply a continuation of her prior cervical injury depended on her
symptoms before and after the accident. However, he stated that she told him that
her symptoms had improved following the 2005 accident, and her x-rays following
the motor vehicle accident revealed no cervical instability. He further stated that her
2005 cervical MRI was essentially negative, while her February 25, 2014 MRI
revealed bulging discs at C4-5, C5-6, and C6-7.
Dr. Romero stated that Plaintiffs pre-accident statement, of taking ibuprofen
for occasional back pain, was consistent with the history she related of not
experiencing significant symptoms prior to the accident. He also said that the
photographs introduced into evidence were consistent with her history of being very
active between 2010-2013. When questioned about complaints made by Plaintiff
on ten occasions between March 2008—February 2013, Dr. Romero said they could
be consistent with her post-accident lumbar complaints. He agreed that the
degenerative changes at L3-4, L4-5, and L5-S1 predated the accident, except that in
addition to the disc bulge and disc protrusion at L5-S1, she now had an annular
fissure. Dr. Romero described an annular fissure as a tear or a defect in the back of
the disc.
While he had not placed any restrictions on Plaintiff during her treatment, Dr.
Romero responded that he would simply have recommended that she let pain guide
her activity level. He said that he advises his patients to stay active and to live their
46
lives. When asked whether Plaintiff's actions of running and exercising indicated
that her soft-tissue injury had resolved, he said that it depended on whether she
experienced symptoms during those activities. When pressed, Dr. Romero agreed
that it was not unreasonable for Defendant to think that Plaintiff's cervical instability
was caused by her November 2016 accident based Dr. Barker’s diagnosis of cervical
instability since her 2014 x-rays demonstrated no instability.
Dr. Romero did not offer an opinion on whether Plaintiff's subsequent
surgeries were related to the January 14, 2014 accident, as that determination hinged
on whether there were changes in her subsequent imaging studies and symptoms.
He did not agree or disagree with Dr. Roth’s suggestion that Plaintiff suffered from
a somatic symptom disorder. While this could be a reasonable explanation for
Plaintiffs pain, he reiterated that he found no evidence that she exaggerated her
symptoms.
While deferring to Dr. Romero’s opinion on causation, Dr. Lasseigne related
Plaintiff's symptoms to the January 14, 2014 accident. Based on her oral history,
she was asymptomatic before the accident, and he found her to be credible in relating
her symptoms. He recalled treating Plaintiff because her last name was unique and
because she skied, was from Idaho, and went to school in Montana. He also
remembered her because of her age and her job with Halliburton. Dr. Lasseigne
testified that Plaintiff told him about her prior neck injury from skiing. While he
admitted that she did not explain the extent of her injury, he stated that he asked her
a lot of questions about her skiing history, and he was aware that she had suffered a
significant injury while doing a jump.
Dr. Lasseigne testified that throughout her treatment, Plaintiff consistently
complained of neck, shoulder, and lower back pain, with pain radiating into her
upper and lower extremities, which he found to be consistent with her imaging
47
studies. He stated that when he saw Plaintiff five months after the accident, she was
way past a soft-tissue injury, which would have resolved within two to four months.
Dr. Lasseigne stated that because he had exhausted all conservative treatment
options by the end of her treatment, he referred her to Dr. Bidros, a neurosurgeon,
who recommended that she undergo an anterior lumbar interbody fusion at L5-S1.
Dr. Lasseigne opined that Plaintiff's cervical complaints originated from the
C5-6 disc, which, he explained, causes symptoms down the arm and into the ring
and little fingers and the thumb. He stated that symptoms caused by the C4-5 disc
stops at the elbow. He further opined that her L5-S1 herniated disc was the cause of
her posterior thigh and calf pain, which was consistent with the $1 dermatome. He
stated that Plaintiff's December 4, 2015 cervical MRI revealed that the disc
protrusion at C5-6 had improved, but that she still had degeneration at C5-6 and
foraminal stenosis at C4-5.
Dr. Lasseigne described Plaintiff's pain in her neck, shoulder blade, arms,
lower back, and leg as radiculitis, which is neuropathic in nature. He explained that
radiculitis occurs when a nerve root becomes chemically irritated by nucleus
pulposus” leaking from a disc, which can cause very high levels of pain. Although
Dr. Lasseigne agreed that a chemical irritation can also lead to radiculopathy, he
stated that it differs from radiculitis in that it causes objective neurological deficits,
such as muscle weakness and reflex and sensory changes, none of which Plaintiff
demonstrated. He opined that Plaintiffs subjective complaints of pain perfectly
correlated to a chemical irritation of the C5-6 and S1 nerve roots, caused by the
leakage of nucleus pulposus through the annular fissures located at C5-6 and L5-S1.
"The jelly-like material located in a disc.
48
Dr. Lasseigne further opined that the flare-ups Plaintiff experienced in her
lower back within six months of the accident were intermittent; thus, they were not
the result of a chronic condition. He explained that a condition is chronic “when a
person requires ongoing, routine, daily, every day [sic] kind of treatment.” He
pointed out that during the entirety of his and Dr. Romero’s treatment, Plaintiff was
never asymptomatic.
Laura Durkheimer testified that Plaintiff, her younger sister, was very active
and loved outdoors activities prior to the accident. She stated that they often hiked,
travelled, skied, and engaged in strenuous outdoor activities. She explained that she
and Plaintiff were raised with a “go-gettem attitude” and that growing up as ski
racers, they both had to be tough and fight through pain. Ms. Durkheimer said that
she stayed in constant touch with Plaintiff after the January 14, 2014 accident and
that Plaintiff was in a lot of pain during her April 2014 visit to Lafayette. While
helping Plaintiff move to Denver, she did the majority of the driving during the trip
and unloaded Plaintiff's U-Haul trailer when they arrived, as Plaintiff was in pain
the entire trip. She also accompanied Plaintiff to many of her doctor’s appointments
after her move. Ms. Durkheimer testified that although Plaintiff's condition had
been severely limited since the accident, she tried to continue her pre-accident
activities. However, she stated that Plaintiff was unable to run or jog and that she
even found long walks challenging.
Dr. Barker, who did not provide a causation opinion, testified that the majority
of Plaintiff's symptoms and the reason he recommended surgery was based on the
instability at C4-5. As to causation, he said that his only concern was that her
instability had become so symptomatic that she now required surgery. While aware
that Plaintiff was diagnosed with ligamentous instability following her 2005 ski
49
accident, Dr. Barker testified that “evidently it wasn’t bad enough for her to have
surgery because she never did have surgery.”
Dr. Barker explained that prior to recommending surgery, he wants to know
how long the patient has been experiencing symptoms and whether they have
undergone adequate non-operative care for approximately three to six months. He
said that he would not perform surgery on a patient one month post-accident unless
they suffered from a gross instability that threatened paralysis. He further stated that
a patient could be rendered more fragile by a prior injury, with a subsequent injury
making a prior ligamentous instability worse or causing a degenerative disc to
degenerate faster.
Dr. Barker testified that his pre-operative diagnosis was cervical kyphosis,
instability, and foraminal stenosis at C4-5, and he performed an ACDF at C4-5 to
relieve Plaintiff's neck pain and to correct the instability caused by the kyphosis. He
described the lumbar facet arthropathy diagnosed by PA Schweid as a degenerative
condition that would not spontaneously heal. While he agreed that skiing, hiking,
and mountain climbing can sometimes exacerbate or accelerate the degenerative
process, he stated that walking or the norma! activities of daily living can also
exacerbate or accelerate the process. He said that everything furthers the
degenerative process.
Dr. Barker testified that Plaintiff told him that she was symptomatic prior to
the January 14, 2014 accident, but that her symptoms were under fair control. In
regard to her 2013 statement of occasional back pain, he understood this to mean
that her symptoms were not that bad. He stated that Plaintiff was very active
following her ski accidents, but that following this accident, she developed markedly
more severe symptoms in the form of unrelenting neck pain, cervical-induced
headaches, and bilateral trapezius pain. Dr. Barker said that while he was not
50
informed about Plaintiff's November 2016 accident, she informed PA Schweid
about her October 2, 2017 fall. He opined that this incident did not aggravate her
low back pain.
Dr. Jatana also did not provide a causation opinion, instead, deferring that
question to the doctors treating Plaintiff closer in time to the accident. He further
refused to offer an opinion on whether Plaintiff's kyphosis resulted from her 2005
ski. Because he only saw Plaintiff in regard to her complaints of pain following her
first surgery, the only information he had was her March 2018 cervical MRI report
showing that she had undergone a fusion. Dr. Jatana testified that Plaintiff told him
that she was involved in a 2005 ski accident, but he admitted that she did not disclose
the extent of her injury, the surgical recommendation, or her 2008 ski accident.
Based on the discogram results, Dr. Jatana determined that Plaintiffs
continuing cervical pain was related to the C5-6 disc, either due to adjacent segment
degeneration or because it was already symptomatic before the C4-5 fusion. He
explained that a healthy adjacent disc degenerates at a rate of two to three percent a
year from trying to compensate for the fused disc’s lack of mobility, whereas a disc
that is already injured degenerates faster and becomes symptomatic sooner. Thus,
Dr. Jatana opined, if an adjacent disc becomes symptomatic within one year of a
fusion, as in the case of Plaintiff's C5-6 disc, there is indirect evidence that the
adjacent disc was symptomatic prior to the fusion.
Dr. Jatana testified that his pre- and post-operative diagnosis was a
degenerative C5-6 disc; however, he explained that because this was the only
medical term available to describe Plaintiff's disc, the degenerative finding was not
necessarily age-related. Dr. Jatana stated that based on Plaintiff's imaging studies,
this finding applied to both the cervical and lumbar spines. In regard to her lumbar
complaints, Dr, Jatana diagnosed her with mechanical! low back pain, which was
51
probably caused by her L5-S1 disc. He stated that she was receiving conservative
treatment for this issue.
Dr. Jatana testified that Plaintiffs February 25, 2014 cervical MRI
demonstrated that she had “structural changes consistent either with degeneration or
trauma to the 5-6 level.” He described an annular fissure as a tear in a disc’s outer
layer as a result of either the natural aging process or trauma. He testified that
kyphosis is an x-ray finding, which describes a forward curve that changes the
cervical spine’s normal alignment as a result of either trauma or the degenerative
process. Dr. Jatana further testified that while kyphosis, in and of itself, does not
require treatment, any treatment prescribed would relate to the patient’s symptoms.
He stated that surgery is not recommended for an asymptomatic patient, and
kyphosis usually does not reverse with physical therapy. He said that in treating ski-
related injuries, he finds that his younger patients do better with kyphosis than his
older patients.
John Wayne Prejean, the owner of the automotive body shop that repaired
Plaintiff's 2000 Toyota 4Runner S45, testified that the repairs totaled $2,842.48. He
stated that the repairs included replacing the rear gate, the bumper, the bumper
extensions, the four brackets holding the bumper and bumper extensions, and the
trailer hitch. He said that the trailer hitch was replaced for liability reasons due to
the possibility that the spot welds used to construct it had cracked during impact. He
explained that the heavy-duty after-market trailer hitch was hit first and bore the
brunt of the impact.
Ms. Henschel testified that based on the initial information gathered by
Defendant, Plaintiff's claim arose as a result of a minor accident as the accident
report indicated that there were no complaints of injuries, no emergency treatment
provided, and minor property damage and because Ms. Landry described the
52
accident as a “minor tap.” Additionally, Plaintiff related in her recorded statement,
taken two days after the accident, that she sometimes experienced neck pain. Ms.
Henschel further stated that Defendant initially did not think Plaintiff was making a
UM claim since she told the adjuster to close her file in April 2014, and the
emergency room records indicated that she was only diagnosed with a spinal strain.
She additionally noted that Dr. Romero found no objective sign of injury and did not
recommend surgery.
Ms. Henschel stated that Defendant first learned about Plaintiff's UM claim
when she filed suit on December 30, 2014. From that point onwards, she said,
Defendant was defending against a lawsuit. She stated that Defendant began
reviewing Plaintiff's past medical records because, as she stated, “in my experience,
this type of accident doesn’t normally correlate with any kind of big injury so we
naturally want to look at whether or not something was wrong before and so, yes,
we look at past records.”
As part of its defense, Defendant hired Dr. Roth, an internist, who opined that
the accident caused a temporary aggravation of Plaintiff's preexisting injuries, which
had completely resolved by June 2014, even though she continued experiencing non-
accident-related issues with her spine. She claimed that a red flag was raised by Dr.
Roth’s report by the inconsistencies and omissions noted in Plaintiff's reporting of
her prior medical history to her doctors. She asserted that Plaintiff failed to provide
Dr. Barker and Dr. Jatana with thorough histories of her prior injuries and treatment,
and that her reported complaints, as well as Drs. Barker and Jatana’s findings, were
consistent with her preexisting injuries. Thus, she claimed that Defendant
appropriately relied on Dr, Roth’s opinion in finding that Plaintiff's complaints were
related to her preexisting injuries. However, when asked, “Do you believe it’s a fair
statement that [Plaintiff] is required to reveal all of that information to every medical
53
provider every time she sees someone for her injuries[,]” Ms. Henschel answered,
“Of course not.” She also acknowledged that Plaintiff's report of her November
2016 accident and her 2017 and 2018 falls did not strike her as being dishonest.
Ms. Henschel testified that Defendant’s reliance on Dr. Roth’s opinion was
also valid because neither Dr. Barker nor Dr. Jatana provided opinions relating
Plaintiff's surgeries to the accident. However, she acknowledged that they did relate
the surgeries to her symptoms. She said that Dr. Barker noted that the C4-5 fusion
was the same surgery recommended to Plaintiff in 2005, and he testified that
Plaintiff, herself, related her symptoms and her long history of neck pain to her 2005
ski accident. She further pointed out that Dr. Barker recommended surgery based
on Plaintiff's failed history of significant conservative treatment. Ms. Henschel
further testified that Dr. Jatana’s recommended C5-6 fusion was based on
degenerative changes that were present in Plaintiff's cervical spine dating back to
2005. She said that in her experience, degenerative changes do not get better. She
further claimed that Dr. Jatana testified that Plaintiff had a preexisting cervical
instability and disc injury at C4-5 that had not resolved. She also maintained that
Plaintiffs diagnostic and surgical findings of kyphosis and other mechanical injuries
were identical to diagnostic findings noted in 2005.
Despite Dr. Roth’s note of chronic back pain in Plaintiff's 2010 and 2013
physicals, Ms. Henschel admitted that Defendant was not aware of any treatment
received by Plaintiff for her neck and back issues in the eighteen months preceding
the accident. She further admitted that there were no medical records documenting
that Plaintiff complained of such pain between 2009-2010 and the date of the
accident. She also acknowledged that the medical records indicated that Plaintiff
was working out five days a week approximately one month before the accident; she
traveled to Africa and climbed to the top of Mount Kilimanjaro in the summer of
54
2013; that she was running twenty-five miles a week in October 2011; and she had
contemplated a return to ski racing in August 2010.
It was Ms. Henschel’s opinion that Plaintiffs cervical and lumbar issues
preexisted the accident based on the 2005 ski accident and the note of chronic back
pain in the July 2013 physical. She further opined that Plaintiff's 2005 structural
injury would never go away. Regarding whether Plaintiff complained of chronic
symptoms in the eighteen months prior to the accident, Ms. Henschel testified, “I
read chronic. And when I think of chronic, you have pain on and off. It waxes and
wains !sic]. You know, I’ve got a bad back and it bothers me at different times. ...
3
And it has for years.” While Plaintiff had not received medical treatment in the
eighteen months preceding the accident, Ms. Henschel admitted that she received
consistent, significant treatment following the accident. She further admitted that
no medical record indicated that Plaintiff experienced a complete cessation of pain
after the accident; however, she claimed, “I have no record that shows that she
recovered from 2005.”
Ms. Henschel additionally claimed that Plaintiff's ongoing pain following the
accident was related to “much more significant” incidents. She stated:
{Sjhe had all kinds of things that happened. A more significant car
accident. You know, downhill skiing, survival training.
All kinds of things happened. So when you asked me did she
completely recover from this one instance, ] believe she did, but was
she recovered? No. You know she’s not going to ever have a —
She has structural injuries.
She further contended that these activities also contradicted Plaintiff's claim of
debilitating pain:
Well, I know she was - - the year of the accident she was
kayaking and mountain hiking and downhill skiing, and not just the
55
blues or the greens, but all the ski hills, so she — and survival training.
Dropped upside down, I think in a helicopter, simulation cockpit, had
to push out a window, swim with her clothes on, tread water. All of
these kinds of things she was doing, yes, after our accident that same
year.
Ms. Henschel testified that its accident-reconstruction expert, Mr. Bogges,
determined that the forces exerted on Plaintiff's spine “‘as a result of this relatively
low impact accident wouldn’t have been any more than activities of daily living.”
He further opined that the acceleration caused by the impact would not “exceed any
normal joint range of motion consistent with causing or aggravating any significant
injury to the body regions.” She said that he also found that the after-market brake
light covers on the 4Runner “obscured the taillights to an extent making it more
difficult for the other driver to see the brake lights[.]” She stated that this finding
factored into Defendant’s investigation as it could have contributed to the accident.
Although not aware that Mr. Bogges had not seen photographs of Ms.
Landry’s vehicle before issuing his report, she stated:
Were they necessary for him to make the calculations? You know, I
don’t know how they make their calculations exactly because I’m not a
mechanical engineer, so I should not have stated what’s important for
them because I don’t know for sure what’s important for them to get
their calculations.
She stated that the photographs did not depict a significant accident, but when asked
if they depicted a “slight bump,” she stated, “I probably wouldn’t use the words
slight bump, but then again I didn’t feel it and I wasn’t the driver.”
Defendant also had hired a private investigator to perform surveillance of
Plaintiff. She claimed that Defendant did so not because it thought Plaintiff was
dishonest, but rather based on “the totality of the whole thing, with the low impact
and the allegations that were being made and the fact that she was involved in
extreme sports.” While she admitted that the surveillance failed to provide any
valuable information, she claimed that it validated Plaintiff's complaints.
56
Ms. Henschel testified that despite the inconsistencies in Plaintiff's medical
records, Defendant made good-faith unconditional UM tenders of general and
special damages. She said that she was aware of the penalty provisions contained in
La.R.S. 22:1892 and La.R.S. 22:1973 and the Housley presumption. She further
stated, “I think when somebody’s got a structural damage, they can aggravate
problems much more easily than if they don’t have structural damage.”
Based on her testimony, Ms. Landry did not know how fast she was going at
the time of the accident. She first claimed that she was going thirty-five miles per
hour before the accident because she had just seen her speed flashing on a portable
radar system. She then contended that she was going slower than the speed limit
prior to impact because traffic was “trying to merge in and turn off.” Ms. Landry
did not know Plaintiff's speed prior to impact, but stated that it was possible she was
going slower than the speed limit, which she thought was thirty or thirty-five miles
per hour. However, no matter Plaintiff's speed, she knew that Plaintiff was slowing
down but was not completely stopped. Ms. Landry further described the impact as
“a little bump, like a little tap.” She stated that Plaintiff's 4Runner suffered minor
damage in the area of her trailer hitch, and her vehicle, a Kia Sorrento, suffered
minor damage where the trailer hitch punctured her front bumper.
According to Ms. Landry, Plaintiff suffered no apparent injury as a result of
the accident. She stated that Plaintiff, whose hands were shaking, said that she was
only a little shaken up, and she also told her and the responding officers that she was
fine and did not require an ambulance. She denied that Plaintiff told her that her
head was hurting. Although she was ticketed for careless operation, Ms. Landry
claimed, as she did in her accident statement, that she was prevented from seeing
Plaintiff's brakes by the black covers or frames on the brakes and because of the
reflection from the sun’s glare. Despite this claim, she admitted knowing that the
57
traffic ahead of her was either coming to a stop or was slowing down. Moreover,
although her accident statement said that Plaintiff stopped because a vehicle in front
of her made a sudden left turn, she testified that the road’s curve prevented her from
seeing anything ahead of Plaintiff.
Dr. Everett Robert, a neurosurgeon, testified as Defendant’s expert. It was his
opinion, after reviewing all of Plaintiffs medical records, that the accident only
caused soft-tissue injuries to her cervical and lumbar spines, which should have been
resolved within the three months. He further opined that any symptoms she
experienced past that time were related to injuries caused by her ski accidents, which
had never been surgically corrected.
Dr. Robert testified that Plaintiff's 2005 x-rays demonstrated 15° of kyphosis
and four millimeters of translation in her cervical spine at C4-5. He stated that the
cervical instability, kyphosis, and any disc damage revealed by those x-rays were
objective findings of injuries and that Dr. Verst’s 2005 recommendation of surgery
was appropriate as the cervical instability would not heal by itself. He stated that
since 2005, Plaintiff's x-rays revealed varying degrees of cervical instability, and he
assumed, based on her imaging studies and C4-5 instability, that Plaintiff
experienced pain between 2008-2014.
Dr. Robert stated that the medical records revealed that Plaintiff experienced
cervical and lumbar complaints for quite a few years prior to the January 14, 2014
accident, as evidenced by the June 22, 2005 diagnosis of cervicalgia, neuropathy,
C4-5 instability, and tenderness to palpation in the C5 region, and Plaintiff's
February 2013 complaint of her back flaring up one to two times a week during
exercise. He stated that Plaintiff potentially exacerbated the preexisting kyphosis
and instability when she injured her neck in the April 6, 2009 ski accident. He also
agreed that her occipital headaches in 2009 and 2012, were possibly cervical-related.
58
Dr. Robert further testified that the note of chronic back pain in the 2010 and 2013
physicals indicated that Plaintiff was still experiencing symptoms consistent with
her anatomical injury. He claimed that the fact that she sought no treatment for her
cervical issues between 2008-2009 and the date of the accident did not prove she
was asymptomatic.
Because Plaintiffs pre- and post-accident imaging studies revealed no
anatomical changes, Dr. Robert opined that she suffered a soft-tissue injury as a
result of the accident. He stated that the studies also demonstrated that her
preexisting cervical kyphosis and instability had not changed. Based on the lack of
objective evidence and Plaintiff's subjective complaints of pain, Dr. Robert
attributed her complaints to a soft-tissue injury. This was supported by the fact that
the T2 signal on Plaintiff's MRI showed no evidence that her spine had been bruised.
He further testified that it was possible for a person to suffer a soft-tissue injury on
top of a pre-existing injury. Because Plaintiff’s soft-tissue injury should have
resolved within three months, he stated that her continuing complaints of pain could
be related to either a re-exacerbation of her preexisting injury or a new injury.
Dr. Robert testified that none of Plaintiff's treating doctors causally related
her symptoms, other than the strain, to the accident. Dr. Barker related the surgery
he performed to Plaintiff's kyphosis and disc injuries at C4-5-6, which she, herself,
related to her ski accidents. He further opined that physical therapy would not
correct the gross cervical instability of four millimeters translation found in
Plaintiff's cervical spine.
As to Plaintiff's pre-accident activity level, Dr. Robert stated that it is possible
for people experiencing pain to do extraordinary things. Although he would not tell
a person who was hurt to refrain from certain activities, he stated that it was certainly
not advisable for a person with a history of a chronically injured spine to “do some
59
really high-end activity [or] work[.]” He further stated that it is impossible to tell if
a person is in pain or that they have an anatomical injury just by looking at them in
a photograph.
Dr. Robert further opined that absent the accident, Plaintiff still would have
required surgery to fuse her C4-5 disc since this was the same surgery performed by
Dr. Barker in 2017. No matter her pre-accident activity level, he absolutely would
have recommended the surgery to her the day before the accident based on the gross
instability of her cervical spine, which he described as a dangerous injury for an
active person. His opinion was not affected by Dr. Jatana’s finding regarding
Plaintiff's C5-6 disc. However, he opined that because Plaintiff's cervical MRI
revealed no demonstrable injury at any level, it was possible that the C4-5 and C5-6
discs were both causing her pain before and after the accident. He said that
Plaintiffs February 25, 2014 cervical MRI revealed multiple mild degenerative
changes and a kyphotic deformity, but revealed no clinically significant
neuroforaminal stenosis or spinal stenosis. He disagreed with the finding of an
annular fissure at C5-6.
Mr. Bogges, a forensic engineer, was accepted as Defendant’s expert in
accident reconstruction and biomechanics. After analyzing the accident, he
determined that the difference in speeds between the vehicles prior to impact was
ten miles per hour and that at most, the 4Runner experienced a 6.5 mph change in
velocity (delta-v) when it was struck by the Kia. This, he stated, was equal to two
times the force of gravity (2-g) for approximately .2 seconds. He further determined
that the 6.5 mph delta-v was insufficient to take the lumbar and cervical spines of an
occupant, of Plaintiff's age, height, and weight, outside of their normal ranges of
motion.
60
Mr. Bogges testified that injury occurs when an accident involves both motion
and force, which he stated was not present in this accident. He stated that in order
to determine the 4Runner’s delta-v, he first determined the speed differential by
reviewing each vehicle’s specifications and photographs of the damage suffered. He
said that the accident did not involve much damage as there were only a few marks
on the 4Runner and the puncture of the Kia’s plastic bumper by the trailer hitch. He
said that in order to understand the energy dissipated and absorbed by the vehicles
involved in this collision, he compared the damage they suffered to that reported in
published crash and bumper tests involving the same make of vehicles. After
performing calculations related to conservation of energy, restitution, and
momentum, Mr. Bogges determined the 6.5 mph delta-v of the 4Runner.'' He agreed
that an increased speed differential would increase the forces involved in the impact
and cause more damage to the vehicles. He further noted that the police report
indicated that the speed limit on Southpark Road was fifty miles per hour.
Mr. Bogges described the bumper of the 4Runner as consisting of an outer
plastic sheli, a Styrofoam absorber, and a metal bumper beam mounted to the rear
body of the 4Runner. He stated that the steel-beam trailer hitch was attached to the
4Runner’s frame or chassis, and while he admitted that the trailer hitch was stiff, he
denied that it was rigid. He further said that although the 4Runner’s body, including
the occupant’s seat, was attached to the frame, the energy exerted on the seat was
dissipated by built-in horizontal and vertical dampening. Mr. Bogges testified that
the damage report for the 4Runner revealed no structural damage. Based on 3D
models of both vehicles and photographs of the vehicles, ne determined that the
4Runner’s trailer hitch punctured the lower part of the Kia’s plastic bumper.
u . . . .
Mr. Bogges described conservation of energy as “[e]ssentia}ly, what comes in has to
come out of the system.” He described restitution as being “how bouncy things are.”
61
However, his analysis indicated that the Kia’s front bumper reinforcement bar,
which is made of metal, was replaced as a result of the accident.
As to whether this accident would have caused an occupant to experience a
structural! injury, Mr. Bogges explained that when struck from the rear, a vehicle is
pushed forward from the impact, carrying the occupant’s lumbar spine, which is
supported by the seat, forward. He stated that the head, which weighs approximately
ten pounds, is initially left behind, causing the neck to extend backwards until the
head impacts the headrest, after which the head is carried forward by the vehicle.
From this information, he was able to calculate the shear force placed on the neck
and the bending movement of the neck. From these values and based on the fact that
the lumbar spine would have moved very little during the accident, Mr. Bogges
determined that the forces exerted on the cervical and lumbar spines were not above
the reasonable injury thresholds for the human body, as established by published
data. Thus, he opined, the forces exerted on the cervical and lumbar spines were not
consistent with causing significant injury.
Mr. Bogges testified that the 6.5 mph delta-v exerted on an occupant is very
similar to that exerted on the human body by the activities of daily living. He stated
that the act of bending down and tying a shoelace would exert more force on a
person’s lumbar spine than was exerted in the accident. Moreover, he stated that the
act of a person plopping down into a chair, walking down a flight of stairs, or jogging
would exert a similar force on their cervical spine as was exerted by the accident.
Mr. Bogges further determined that the 4Runner’s black-edged brake light
covers diminished or degraded the light output from the brakes by 30%, which could
possibly result in a delay in a following driver’s response time or cause them to miss
the light all together. He stated that Louisiana law prohibits a driver from degrading
the performance of a vehicle’s lighting system. He further stated that as a result of
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the 30% degradation, Ms. Landry’s ability to see the brake lights could have been
further affected by the sun’s glare, which was coming from behind her as the January
sun was located 30° above the horizon, south of Southpark Road. Thus, the sunlight
would have hit Plaintiff's brake lights and then reflected back southwards towards
Ms. Landry. He also testified that he found no evidence contradicting Ms. Landry’s
statement that she was presented with a sudden emergency due to Plaintiff's sudden
stoppage or braking of her vehicle.
Mr. Bogges disagreed with Dr. Barczyk’s accident-reconstruction opinion
because his report did not indicate that a site inspection was performed of Southpark
Road and because rather than making his own calculations, he utilized Mr. Bogges’s
numbers in reaching his conclusions. Mr. Bogges claimed that Dr. Barezyk said that
there was no need to reconstruct the accident because it involved a rear-end collision.
Mr. Bogges disagreed with this statement because “[y]ou have to understand the
forces to understand what the risk is.” He further claimed that Dr. Barczyk’s
discussion about the accident was very generic and, although he did discuss injuries,
he failed to discuss the specific injury at issue or the specific mechanism that would
cause a posterior C4-5 protrusion. Mr. Bogges further dismissed Dr. Barczyk’s
statement regarding plasticity that a person driving a vehicle that is not damaged can
suffer worse injuries than someone driving a vehicle that is damaged. He explained
that here, there was a very specific system of two vehicles that were designed to
crush. Thus, he opined that the amount of damage resulting from the accident was
very relevant to its reconstruction because if there was not a lot of damage, then the
accident did not involve a lot of force.
Herman Ledet, a nurse practitioner, testified that when he examined Plaintiff
after the accident, she complained of pain in the occipital region of her head and in
her neck and lower back. He stated that he diagnosed Plaintiff with a head contusion
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and cervical and lumbar sprains for which he prescribed anti-inflammatories, muscle
relaxers, and pain medication. Although the x-rays revealed no objective evidence
of injury, NP Ledet testified that his contusion diagnosis was based on Plaintiff's
statement that she hit her head on the headrest. Likewise, his cervical and lumbar
sprain diagnoses were based on the mechanism of injury and her complaints. He
found Plaintiff's complaints of pain to be credible.
Dr. Barczyk, who was called on rebuttal, disagreed with Mr. Bogges’s opinion
because he ignored the effect the steel trailer hitch had on the forces exerted on
Plaintiff at impact and because he estimated the speeds of the two vehicles. Dr.
Barczyk testified that because Plaintiff's trailer hitch was an after-market part, it
differed dramatically from a standard Toyota trailer hitch and would have
significantly affected the crush caused by the impact, as well as the movement of the
occupant in the passenger compartment. He further claimed that it was improper for
Mr. Bogges to rely on known crash-test data involving standard Toyota trailer
hitches in calculating the forces exerted on the 4Runner because he was not aware
of any crash-test results involving this trailer hitch.
Dr. Barezyk explained that because the trailer hitch stuck out from the
4Runner’s bumper, it was the first part of the 4Runner that was struck by the Kia.
After this first impact, he stated, the trailer hitch tore through the Kia’s plastic
bumper and foam absorber within milliseconds before coming into contact with its
metal reinforcement bar. He stated that although the Kia would have slowed down
after hitting the trailer hitch, the impact was still hard enough to bring its bumper
into contact with the 4Runner’s bumper. Thus, Dr. Barezyk opined, the collision
between the two bumpers was secondary to the collision of the Kia’s bumper with
the trailer hitch. He further opined that the presence of the trailer hitch prevented
the 4Runner’s bumper from crushing as much as it would have if it were not present.
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Dr. Barezyk testified that the Kia’s damage report indicated that its metal
reinforcement bar was damaged and required replacement following the accident.
He stated that this damage was caused by the trailer hitch and not the 4Runner’s
plastic bumper. Thus, he opined that the collision between the 4Runner and the Kia
was a stiff to stiff collision, and depending on the stiffness, the trailer hitch changed
the behavior of the two vehicles and their occupants during the collision. He further
opined that in a lower speed stiff to stiff collision it is possible for more energy to
be transferred to the occupants than in a collision involving greater crush since crush
is designed to absorb energy, thereby, protecting the occupants.
With regard to the speed of the vehicles prior to the accident, Dr. Barczyk
testified that based on their testimonies, Plaintiff was almost stopped and Ms. Landry
was traveling between thirty to thirty-five miles per hour. However, he stated that
Mr. Bogges estimated that Plaintiff was traveling at ten miles per hour, and Ms.
Landry was traveling at twenty miles per hour. He explained that this was
problematic because when lower speeds are involved, if the speed of each vehicle is
“off in — three miles per hour in the opposite direction in the estimates, the math is
going to change fairly dramatically, as a percentage of the delta-v that he has at six-
and-a-half miles per hour.” Dr. Barczyk testified for this reason he did not attempt
to estimate the speeds of the vehicles. He stated that low-speed collisions are defined
as those with a delta-v of under eight to ten miles per hour. He stated that despite
his disagreeing with Mr. Bogges’s estimates, he used the 6.5 mph delta-v to show
that it would still provide a “solid lick for a human occupant.”
Dr. Barczyk further testified that Mr. Bogges’s caiculation of the gravitational
forces exerted on the occupant of the 4Runner was incorrect because the
gravitational forces exerted on a vehicle vary dramatically from that exerted on its
occupant. Mr. Bogges calculated that the gravitational force exerted on the 4Runner
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as a result of its 6.5 mph delta-v was, on average, 2-g and, at its peak, 4-g. He
explained that the forces experienced by an occupant are based on Newton’s First
Law pertaining to inertia, which provides that “[b]odies in motion stay in motion.
Bodies at rest stay at rest. Unless they’re acted upon by an outside unbalanced
force.” Thus, Dr. Barezyk explained, an occupant has inertia compared to the
vehicle because he or she is traveling horizontally through space without being
attached or bolted to the vehicle. Consequently, when a rear-end collision occurs,
the vehicle, and the occupant’s torso, head, and neck always move in the exact same
order: the vehicle moves first, the torso moves second, and the head and neck move
third. He said that the only variables pertain to the times in which these three
movements occur,
Dr. Barczyk explained that because the occupant’s torso is touching the seat,
the torso moves later than the vehicle due to inertia; thus, a little more force is exerted
on the torso than the vehicle. However, because the head and neck are not touching
anything, they are the farthest removed from the vehicle and have to move faster in
order to catch up with the vehicle. Thus, Dr. Barczyk testified that the peak
acceleration exerted on the head and neck would be, on average, two to four times
the peak acceleration of the vehicle. So, he stated, if the peak acceleration exerted
on a vehicle is 4-g, then the peak acceleration exerted on the occupant would be
between 8-g and 16-g.
Regarding Mr. Bogges’s finding that the forces exerted by the accident were
insufficient to cause significant injury, Dr. Barezyk testified that there is no
comparison between a rear-end collision and a person plopping down into a chair.
He stated that plopping into a chair does not dramatically change the curvature of
the cervical spine to a shallow S-curve, and it does not do it within an accident’s 75-
to-125-millisecond crash pulse. Moreover, he said that in a stiff to stiff collision,
66
such as between a trailer hitch and a reinforcement bar, there is more bounciness or
springiness, which results in a shorter crash pulse and a greater transfer of energy to
the passenger compartment. He stated that when a collision involves vehicles that
crush together, the crash pulse is longer, which is better for the vehicles’ occupants.
Additionally, he stated that a person plopping into a chair is aware of what they are
doing, whereas in a rear-end collision, the leading driver is surprised by the collision,
and their body’s abnormal movements occur in under 150 milliseconds.
Dale Johnson, a litigation specialist with Kemper, became involved in
Plaintiff's claim in February 2021. It was her opinion, after reviewing Plaintiffs
file and listening to the trial testimony, that Defendant did not act arbitrarily or
capriciously in handling Plaintiff's claim. She explained that two policy coverages
were at issue in this matter—the med-pay coverage, which was automatic, and the
UM coverage, which was not automatic. She said that in order to recover under the
UM coverage, Plaintiff had to produce satisfactory proof of loss proving that her
injuries were caused by the accident and that her damages exceeded Ms. Landry’s
insurance coverage. She said that although Plaintiff bore the responsibility of
obtaining proof of no other coverage, Defendant, rather than Plaintiff, located Ms.
Landry and obtained the affidavit providing the information. She testified that
Defendant did this in an effort to move Plaintiff's claim along.
Ms. Johnson claimed that despite Plaintiff's claim of being asymptomatic
before the accident, she told the adjuster after the accident that she had chronic neck
and back problems. She stated that Defendant heard nothing further from Plaintiff
until the suit was filed. She said that based on the information provided by Plaintiff,
Defendant reviewed her medical records to determine if she had any preexisting
injuries since UM coverage only applies to injuries caused by the accident. As a
result, it learned of Plaintiff's chronic back pain from her 2010 and 2013 physicals.
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Ms. Johnson contended that Defendant had reasonable grounds to conclude
that Plaintiff only suffered a soft-tissue injury as a result of the accident and that her
ongoing cervical and lumbar issues were caused by her preexisting structural
injuries. She stated that immediately following the accident, Plaintiff was diagnosed
with a head contusion, and cervical and lumbar sprains. Additionally, Dr. Romero,
who found no objective sign of injury and did not recommend surgery, referred her
to Dr. Lasseigne for non-surgical treatment. She further pointed to Plaintiffs
statement to her physical therapist” that she had improved forty percent since the
accident, that all of her complaints of pain were subjective, and that all of the
objective signs throughout her medical records were within normal limits.
Ms. Johnson testified that after obtaining Ms. Landry’s affidavit and despite
the fact that it was still awaiting satisfactory proof of loss, Defendant tendered
$20,518.26 on April 20, 2016, its first UM tender.’ She stated that it tendered an
additional $3,891.73 on March 6, 2017, based on medical bills it had received in
relation to Plaintiffs undisputed soft-tissue injury. Ms. Johnson said that Defendant
tendered an additional $30,000.00 on September 14, 2017, consisting of $16,000.00
in general damages and $14,000.00 in medical expenses for treatment she received
during the six week period between November 2015—March 2017. She submitted
that Defendant never received documentation from any of Plaintiff's treating doctors
relating her injuries, other than the soft-tissue injury, to the accident.
Ms. Johnson stated that Defendant relied on Dr. Roth’s causation opinion in
its handling of Plaintiffs claim. She said that Dr. Roth, after reviewing all of
Plaintiff's medical records through March 10, 2017, opined that Plaintiff only
124. .
This statement was actually made to Dr. Lasseigne.
'? The tender was for $60,518.26 ($34,000.00 plus medicals) minus $15,000.00 (Ms.
Landry’s policy limits) and $25,000.00 (Plaintiff's med-pay coverage).
68
suffered a soft-tissue injury as a result of the accident, which would have resolved
within six months. Despite this opinion, Defendant gave Plaintiff the benefit of the
doubt when it made its first UM tender of $20,518.26 to Plaintiff on April 20, 2016,
which covered twenty-two months of treatment.
Ms. Johnson testified that Defendant further relied on the fact that none of
Plaintiff's treating doctors could say, with any degree of medical certainty, that the
accident caused her cervical and lumbar issues. She noted that neither Dr. Barker
nor Dr. Jatana causally related their surgeries to the accident and, in fact, deferred
the question of causation to Dr. Romero, who, she insisted, did not feel that Plaintiff
was a surgical candidate. While Ms. Johnson acknowledged that Dr. Romero
causally related Plaintiff's cervical and lumbar symptoms to the accident, she
pointed out that he could not state with certainty whether the accident caused an
aggravation of her preexisting injuries or a new injury. She further pointed out that
Dr. Jatana related Plaintiff's anatomical injury to her ski accidents and that Dr.
Barker said that Plaintiff had related her condition to her ski accidents. She added
that Dr. Barker testified that the surgery he recommended was the same surgery
recommended to her in 2005.
As to the C5-6 fusion performed by Dr. Jatana, Ms. Johnson admitted that
while she was not aware of any MRI that demonstrated abnormal cervical findings
prior to the accident, Plaintiff's February 25, 2014 cervical MRI did demonstrate
abnormal findings. Nevertheless, she asserted that Plaintiffs later cervical MRIs
revealed degenerative changes not shown on her February 25, 2014 MRI. She
further testified that Defendant’s expert, Dr. Robert, found evidence of a focal
kyphosis at C5-6 on a January 23, 2005 x-ray. She related Plaintiff's C5-6 issue to
her subsequent accidents or to adjacent segment degeneration caused by the fused
C4-5 disc. Furthermore, she stated that Dr. Robert, the only physician to review all
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of Plaintiff's medical records and imaging studies, did not relate her ongoing
cervical and lumbar issues to the accident.
Ms. Johnson testified Defendant also noted inconsistencies in Plaintiffs
statements to her treating physicians throughout its investigation:
[T]hroughout her treatment, there were periods where she would note
that she was getting better. But, then, there’s also notes where — I went
hiking in Colorado, and you know, my back is hurting, and things are
bothering me.
So she was doing things, and she was showing some
improvement. But, then, there’s also things that she was doing that
were aggravating her condition.
The doctors noted that she had a degenerative condition.
Degenerative conditions don’t get better. Over time, based upon your
activity and the things you do — can actually kind of make — kind of
speed the process along.
I noticed, from my own experience, 11 years agof.]
She also insisted that Plaintiff either reinjured herself or suffered new injuries
subsequent to the accident as a result of her November 2016 accident and her falls
in 2017 and 2018, as well as her participation in extreme activities such as hiking
and kayaking. Ms. Johnson further asserted that Plaintiff failed to mitigate her
damages by performing these same types of activities or by undergoing unnecessary
treatment that had previously proven non-beneficial. She pointed out that Plaintiff
continued to receive physical therapy after Dr. Lasseigne stated that her
improvement from such therapy had plateaued, and Dr. Barker’s recommendation
that she undergo further injections after Dr. Lasseigne found that they offered her no
relief.
Ms. Johnson testified that issues of causation were also raised by Ms. Landry’s
assertions in response to Plaintiff's suit." She stated that Ms. Landry claimed that
14 . oa
We note that neither Ms. Landry nor State Farm filed an answer in this matter. The
affirmative defense of sudden emergency was raised by Defendant in its amended answer.
70
her ability to timely stop was affected by the presence of black tape surrounding
Plaintiff's brake lights and by her sudden stop. Because these issues raised questions
regarding Plaintiff's comparative fault, Defendant could not know the full extent of
Ms. Landry’s liability until the matter was litigated.
Ms. Johnson admitted that Defendant has a contractual relationship with
Plaintiff through its insurance policy, and she was also familiar with the penalty
provisions in La.R.S. 22:1892 and La.R.S. 22:1973. However, she asserted that
Defendant is not required by statute to presume that Plaintiff's injuries are causally
related to an accident if her symptoms after the accident are greater than those before
the accident. This, she stated, would contradict Defendant’s UM policy language,
which required Plaintiff to prove causation as a result of the accident. Ms. Johnson
further claimed that despite Defendant’s request for prior notice of any scheduled
surgery, it first learned about Dr. Barker’s June 30, 2017 surgery in August 2017,
after the fact.
Ms. Johnson stated that based on its information, Defendant made three
unconditional tenders under Plaintiff's UM coverage. When questioned regarding
the medical records introduced by Plaintiff into the record, Ms. Johnson contended
that except for proving that she suffered a soft-tissue injury, they failed to establish
satisfactory proof of loss. She explained that most of the records were received
under a cover letter stating that Plaintiff was submitting more medical records, rather
than stating that they were from doctors relating the medical expenses to Plaintiff's
accident. This, she claimed, was insufficient to causally relate the medical expenses
to the accident. Ms. Johnson admitted that Defendant received Plaintiff's August 7,
2019 request for an additional tender related to the cost estimates for the first surgery
recommended by Dr. Jatana. However, she asserted that Defendant does not pay
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claims based on estimates, especially when Plaintiff failed to establish that the
surgery was causally related to the accident.
After reviewing the record in its entirety, we find that the jury was presented
with differing views of the evidence regarding whether Defendant had a reasonable
and legitimate question for failing to pay Plaintiffs claim timely. In addition to the
wealth of medical evidence related to Plaintiff's pre- and post-accident condition,
the jury heard explanations from Defendant’s adjusters regarding the reasoning
behind its evaluation of Plaintiff's claim and its tender of only $54,409.99 on her
UM claim. Based on this evidence, the jury determined that Plaintiff was in
reasonably good health prior to the accident, considering her prior sports endeavors,
injuries, and lifestyle, but that as a result of the accident, she experienced an
immediate onset of pain. Subsequent to the accident, Plaintiff's condition continued
to deteriorate despite her efforts to recover.
Although the jury was presented with evidence regarding Defendant’s
methodical investigation process, it was also presented with evidence establishing
that from the start of its investigation, Defendant chose to minimize Plaintiff's
injuries precisely because she was a former competitive athlete with a history of
sport-related injuries. Defendant focused on minimizing the accident itself, claiming
that the minor accident could not possibly cause significant injury, and relying on
the self-serving claim of Ms. Landry that the impact only involved “a little bump,
like a little tap.” It further hired an expert in accident reconstruction to support its
position and hired a private investigator to dig up aggravating evidence against
Plaintiff, which did not materialize.
Defendant also hired medical experts to attempt to minimize Plaintiffs claim
despite a wealth of medical evidence already available, and it ignored a significant
quantity of medical evidence of Plaintiff's condition post-accident. It relied on the
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early diagnosis of cervical and lumbar sprains and Dr. Romero’s finding that she
was not a candidate for surgery five months after the accident, despite his note that
this finding was based on her presentation at the time and the fact that he could give
her no assurances that her pathology might not worsen. Defendant further relied on
the alleged inconsistencies in Plaintiff's reporting of her medical histories, although
the records indicate that throughout her extensive post-accident medical history, she
consistently relayed that she had suffered previous neck and back injuries from
skiing even if the doctors did not document the correct accident dates or the correct
number of accidents. Only Dr. Jatana, who treated Plaintiff specifically for her
cervical complaints following her first surgery, stated that she did not tell him about
the lumbar issues related to her 2008 ski accident.
The jury further heard conflicting evidence regarding whether Plaintiff was
asymptomatic prior to the accident. Although Defendant relied on Dr. Roth’s
opinion that Plaintiff was experiencing complaints related to her preexisting injuries
prior to the accident, it also heard testimony, as noted in his report, that Plaintiff had
not sought treatment for neck or back pain in the eignteen months prior to the
accident. Dr. Roth’s report further stated that Plaintiffs claim that she was
asymptomatic before the accident was consistent with lack of medical records
indicating treatment for her neck or back issues between 2009-2010 and the date of
the accident.
Defendant further relied on Dr. Robert’s testimony that Plaintiff's post-
accident cervical complaints were related to her preexisting cervical instability based
on Dr. Verst’s January 28, 2005 diagnosis, five days after the accident, that she had
15° kyphosis and four millimeters translation of the C4-5 vertebra. However, despite
this diagnosis, none of Plaintiff's numerous, subsequent cervical x-rays revealed
cervical instability, which Dr. Romero described as being 3.5 millimeters or greater,
73
although they revealed mild kyphosis at C4-5 and C5-6, with either none or minimal
translation at those levels. Moreover, Dr. Robert even admitted that while cervical
instability will not heal, it can be aggravated.
Additionally, all of the UM tenders made by Defendant, the last dated
September 14, 2017, occurred prior to Dr. Roth’s October 27, 2017 medical opinion.
Thus, although Defendant claimed that it was giving Plaintiff the benefit of the doubt
through its April 20, 2016 tender, which covered twenty-two months of treatment,
this claim was not true since it had not yet received Dr. Roth’s report.
The jury determined that Defendant’s conduct was in bad faith and that based
on all of the available evidence, it would not have been in bad faith had it tendered
at least $325,000.00 to Plaintiff during the course of her treatment. Much of this
determination was based on the jury’s credibility determinations and weighing of
the evidence, after which it chose to minimize the testimony of Defendant’s
representatives and experts. It is not this court’s duty to reweigh or reconsider these
findings, but only to decide whether the jury’s decision was reasonable and rational
given the overall evidence. Based on these facts, we cannot conclude otherwise.
Accordingly, the jury’s verdict finding that Defendant was in bad faith and the trial
court’s denial of Defendant’s motion for a JNOV are affirmed.
PLAINTIFF’S APPEAL
Assignment of Error Number One
In her first assignment of error, Plaintiff argues that the trial court erred in
reducing the amount of damages awarded by the jury from $700,000.00 to
$500,000.00, the UM policy limits, when Defendant failed to proffer the policy
during the jury trial. We find this argument to be misleading as both Defendant and
Plaintiff were barred from submitting the policy limits to the jury pursuant to
La.Code Evid. art. 411.
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At the start of the trial, the parties stipulated that Defendant was Plaintiff's
UM provider on the date of the accident and that the policy was “authentic for all
purposes other than policy limits[.]” A copy of the insurance policy, with redacted
policy limits, was introduced into evidence by Plaintiff. In rendering its verdict, the
jury awarded Plaintiff a total of $700,000.00 in damages. Subsequently, Defendant
moved for remittitur and revision of the judgment to reduce the jury award by the
amount of the credits to which it was entitled and attached a copy of the unredacted
policy limits, which established the UM policy limits as $500,000.00. The
unredacted policy limits were also attached to Defendant’s opposition to Plaintiff's
motion to assess penalties and attorney fees. Plaintiff moved to strike the policy
limits on the grounds that Defendant failed to proffer it during the jury trial.
In denying Plaintiff's motion to strike, the trial court orally ruled:
Under the Code of Evidence Article 411, there is a prohibition
against providing the policy limits to the jury. In keeping with that,
under the initial stipulations that were entered, the policy was put in,
with a redaction of the limits.
The argument being made that the failure to include those limits
results in a — in no limit on the policy is, I find, a very specious
argument, in light of Code of Evidence Article 411. Everyone was
aware, at the time, that there was a limit, except for the jury.
And so I’m denying that motion to strike. It is appropriate that
the amount of the limits be part of the record not given to the jury but
considered in terms of the potential liability of the defendant in this
case.
In the February 1, 2022 judgment, the trial court recognized the
“Uninsured/Underinsured contractual policy limits held by Defendant . . . to be the
amount of $500,000.00.” After reducing the $700,000.00 jury award to
$500,000.00, and then by an additional $69,798.48 in credits, the trial court awarded
Plaintiff $430,201.53 in damages.
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Louisiana Code of Evidence Article 41 1(A) provides that “[a]though a policy
of insurance may be admissible, the amount of coverage under the policy shall not
be communicated to the jury unless the amount of coverage is a disputed issue which
the jury will decide.” Thus, under no circumstances were the parties allowed to
introduce Defendant’s policy limits into the record during the jury trial.
Furthermore, an insurance policy is only admissible during a jury trial in certain
instances, one being if “[t]he cause of action is brought against the insurer pursuant
to R.S. 22:1973[.]” La.Code Evid. art. 411(B)(3). Here, the parties stipulated to the
insurance policy, minus the policy limits, as required by law. Thus, we agree that
all parties, excluding the jury, were aware of the policy limits. Accordingly, we find
no merit in this assignment of error.
Assignment of Error Number Two
In this assignment of error, Plaintiff argues that the trial court miscalculated
the amount of statutory penalties awarded to her under La.R.S. 22:1892. Her
argument is two-fold. She first argues that the seventh question on the jury verdict
form was misleading and confusing in that it allowed the jury to calculate the penalty
amount, which it argues was within the sole province of the trial court. However,
we find that we need not address this argument as Plaintiff “waived any objection to
the form by failing to preserve the issue for appeal by contemporaneously objecting
to it.” Royer v. State Dep’t of Transp. & Dev., 16-534, p. 17 (La.App. 3 Cir.
1/11/17), 210 So.3d 910, 923, writ denied, 17-288 (La. 4/24/17), 221 So.3d 69.
Thus, we find no merit in this argument.
Plaintiff next argues that the trial court miscalculated the penalty by applying
the formula found in La.R.S. 22:1892(B)(1)(a) to $325,000.00 rather than to
$630,251.53, which is the $700,000.00 jury award minus the credits received by
Defendant.
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In calculating the penalties, the trial court stated:
[A]s we know, there are two statutes that were pled in this case —
22:1892 and 22:1973 — both of which provide a penalty for failure to
adjust and/or pay claims.
I note that 22:1892 is, really the former Article 658. So there’s
some cases that have dealt with that article which would apply to that
statute. And that 22:1973 is the former Article 1220.
I know, Mr. Landry, you make the argument that she’s entitled
to both. The cases clearly say you are not entitled to recover under both
provisions.
In this case, the jury made a finding of the amount, which they
held had been withheld arbitrarily and capriciously. And it was not the
total amount of their award. But it was the amount of $325,000.00.
The jury did not find that that was damages sustained by the plaintiff,
but, rather, that that was the amount that they had failed to pay when
due.
So the Court finds that the penalty provision that applies in this
case is 22:1892, which is the former 22:658, which is 50 percent of the
amount found to be due.
Applying this statute, the trial court awarded Plaintiff penalties in the amount of
$162,500.00, which was fifty percent of the $325,000.00 the jury found Defendant
had arbitrarily, capriciously, or without probable cause failed to pay.
Louisiana Revised Statutes 22:1892 provides in part:
A. (1) All insurers issuing any type of contract, other than those
specified in R.S. 22:1811, 1821, and Chapter 10 of Title 23 of the
Louisiana Revised Statutes of 1950, shall pay the amount of any claim
due any insured within thirty days after receipt of satisfactory proofs of
loss from the insured or any party in interest. The insurer shall notify
the insurance producer of record of all such payments for property
damage claims made in accordance with this Paragraph.
B. (1)(a) Except as provided in Subparagraph (b) of this
Paragraph, failure to make such payment within thirty days after receipt
of such satisfactory written proofs and demand therefor... when such
failure is found to be arbitrary, capri
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