Opinion
2012 CA 0634
12-21-2012
ROBERT A. MAGIDSON v. MATTHEW R. LANSING, AND HIS INSURANCE COMPANY, GEICO GENERAL INSURANCE COMPANY AND KRISTIN L. BIENVENU, AND HER INSURANCE COMPANY, AIU INSURANCE COMPANY
Charlotte McDaniel McGehee Baton Rouge, Louisiana Robert J. Snyder Gramercy, Louisiana Counsel for Plaintiff-Appellant Robert A. Magidson Raymond R. Egan, III New Orleans, Louisiana Counsel for Defendant-Appellee Government Employees Insurance Company
NOT DESIGNATED FOR PUBLICATION
ON APPEAL FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT
NUMBER 2006-12250, DIVISION D, PARISH OF ST. TAMMANY
STATE OF LOUISIANA
HONORABLE PETER J. GARCIA, JUDGE
Charlotte McDaniel McGehee
Baton Rouge, Louisiana
Robert J. Snyder
Gramercy, Louisiana
Counsel for Plaintiff-Appellant
Robert A. Magidson
Raymond R. Egan, III
New Orleans, Louisiana
Counsel for Defendant-Appellee
Government Employees Insurance
Company
BEFORE: KUHN, PETTIGREW, AND McDONALD, JJ.
Disposition: AFFIRMED.
KUHN, J.
Plaintiff-appellant, Robert A. Magidson, appeals a district court judgment partially denying his motion for judgment notwithstanding the verdict (JNOV), contending that the trial court failed to award damages for all of the injuries he sustained in a vehicular accident and that the general damages the court did award were abusively low. For the following reasons, we affirm.
PROCEDURAL AND FACTUAL BACKGROUND
In February 1995 and April 1996, plaintiff was involved in automobile accidents that resulted in injuries to his back, pelvis, and right hip. As a result of the 1996 accident, plaintiff was unable to work for ten to eleven months during which he was treated, among other injuries, for back pain, severe right hip pain, and degenerative arthritis. After returning to work, plaintiff continued treatment with a rheumatologist, Dr. Jennifer Capezio, who last saw him on May 20, 2002, at which time plaintiff was still complaining of severe pain in his right hip.
Following his retirement, plaintiff moved from Illinois to Louisiana. On December 16, 2004, he received a steroid injection for pain in his right hip. Normally, such injections are intended to provide temporary relief of significant symptoms and are sometimes a "last step" effort to delay or avoid hip replacement surgery.
On July 19, 2005, plaintiff was involved in a four-vehicle pileup, which is the subject of the instant lawsuit. The accident occurred when a vehicle operated by Matthew Lansing struck the rear of a vehicle operated by Kristin Bienvenu, which was the last of three cars stopped at a traffic light on Highway 22 in Mandeville, Louisiana. The force of the impact caused the Bienvenu vehicle to move forward and strike the vehicle in front of it, operated by Angela Minter. The Minter vehicle was then pushed forward into the rear of plaintiff's vehicle.
The Lansing and Bienvenu vehicles were heavily damaged and were towed from the scene. The rear end of Minter's vehicle was extensively damaged, but the front end sustained only slight scratches to the bumper where it struck the trailer hitch on plaintiff's truck. Plaintiff's truck sustained no apparent damage, the trailer hitch having taken the brunt of the impact from Minter's vehicle. Plaintiff gave the police a written statement at the scene stating that his truck sustained no damage. Although plaintiff testified at trial that he later discovered the trailer hitch was bent by the impact, he offered no evidence of repairs and submitted no claim for property damage to his insurer.
According to plaintiff, the impact of the collision caused him to be jostled, thrown forward, and twisted. In his contemporaneous written statement, he specifically stated that he "was not injured." However, on the evening of the accident, he began experiencing pain in his back, as well as stiffness in his neck and shoulders. Two days later, he visited his primary care physician, Dr. Roy Saguiguit, complaining of a stiff neck and shoulders. Pursuant to Dr. Saguiguit's orders, plaintiff received physical therapy for approximately one month.
On May 25, 2006, plaintiff filed this personal injury suit against Lansing, GEICO Indemnity Insurance Company (GEICO Indemnity) (Lansing's liability insurer), Bienvenu, and AIU Insurance Company (Bienvenu's liability insurer). Subsequently, plaintiff amended the petition to add Government Employees Insurance Company (GEICO) as a defendant in its capacity as his uninsured/underinsured (UM) insurance carrier.
Plaintiff's claims against Bienvenu and her insurer were dismissed, with prejudice, by summary judgment.
During the pendency of the suit, plaintiff settled his claims against Lansing and his liability insurer, GEICO Indemnity. As a result of the settlement, the parties stipulated that GEICO was entitled to a $9,900.00 credit, representing the amount available from Lansing's underlying liability policy, prior to any recovery being owed to plaintiff by GEICO. However, plaintiff demanded an unconditional tender from GEICO as his UM provider, claiming that his damages exceeded the limits of Lansing's policy. The demand was based on plaintiff's assertion that the 2005 accident caused not only pain and stiffness in his neck and shoulders, but also a back injury to his thoracic spine and an aggravation of the pre-existing arthritis in his hips, which ultimately resulted in his having surgeries to replace both hips. GEICO declined to make such a tender.
Plaintiff filed a motion for partial summary judgment asserting GEICO was liable for penalties and attorney fees due to bad faith in its negotiations with him and in failing to proffer an unconditional tender. GEICO responded with a cross-motion for partial summary judgment on the same issue. Following a hearing, the trial court denied plaintiff's motion for partial summary judgment, granted defendant's cross-motion for partial summary judgment, and dismissed plaintiff's claims of bad faith, with prejudice.
Plaintiff filed a writ application seeking review of the trial court's judgment. This Court denied the application on the basis that there was an adequate remedy on appeal. See Magidson v. Lansing et al, 10-1608 (La. App. 1st Cir. 9/27/10).
On July 10, 2009, plaintiff was involved in another accident, which occurred at a hair salon while he was waiting for a haircut. As plaintiff was attempting to sit on a couch, it collapsed and he fell to the floor. Thereafter, plaintiff filed a personal injury suit against the salon and its insurer, alleging in the petition that the fall caused injuries to his back, hips, and knees.
After a two-day trial in the instant suit on March 28-29, 2011, the jury returned a unanimous verdict finding that plaintiff was injured in the 2005 vehicular accident. The jury interrogatories provided that plaintiff was entitled to $924.19 for past medical expenses, but was not entitled to any general damages or future medical expenses. The trial court entered judgment in accordance with the jury's verdict.
Subsequently, plaintiff filed a motion for JNOV and additur on the grounds that the jury verdict was inadequate because: (1) it failed to award all his past medical expenses, which totaled $98,915.42; and, (2) it was inconsistent in that it awarded special damages but denied any general damages. Plaintiff also asserted that because the jury concluded he was injured in the accident and incurred medical expenses as a result, he was entitled to costs and attorneys fees due to GEICO's bad faith in failing to make a tender under its UM policy.
Following a hearing, the trial court partially granted JNOV to the extent that the jury failed to award general damages despite its findings that plaintiff was injured in the accident and was entitled to recover some past medical expenses. In its reasons for judgment, the trial court concluded that the amount of medical expenses awarded by the jury, which corresponded to the total medical expenses related to plaintiff's complaints of neck and shoulder pain, clearly reflected a conclusion by the jury that only plaintiff's complaints of neck and shoulder pain were causally related to the accident. Accordingly, the trial court partially granted JNOV and assessed general damages of $3,000.00 for plaintiff's pain and suffering during the approximate one-month period during which he was treated for neck and shoulder injuries. However, based on its conclusion that the jury reasonably rejected plaintiff's claims that his back and hip conditions were relatable to the 2005 accident, the trial court denied JNOV with respect to plaintiff's requests for increased general damages and all past medical expenses, including those related to his hip replacements.
Further, because the total amount of plaintiff's damages was assessed at below the amount of GEICO's stipulated credit, the trial court found that plaintiff was not entitled to any recovery against GEICO in its capacity as his UM insurer. Therefore, in accordance with its prior denial of plaintiff's motion for partial summary judgment, the court reiterated that GEICO was not arbitrary and capacious in contesting the causation of plaintiff's back and hip injuries.
Plaintiff now appeals, alleging in several assignments of error that: (l) the trial court erred in awarding inadequate general damages; (2) the trial court erred in not making a specific award for loss of enjoyment of life; (3) the trial court erred in not allowing recovery for all past medical expenses incurred; (4) the trial court erred in not imposing penalties and attorneys fees on GEICO due to its failure to make an unconditional tender under its UM policy; (5) the trial court erred in admitting video medical depositions of two physicians who treated plaintiff prior to the subject accident; and (6) the trial court erred in allowing the admission of evidence of plaintiff s prior felony conviction.
PARTIAL DENIAL OF JNOV
Plaintiff contends the trial court erred in refusing to grant JNOV awarding him general and special damages for all of his injuries, including those to his thoracic spine and hips. He asserts that the undisputed medical evidence established that the 2005 accident caused him to suffer back pain he had never experienced before and aggravated his pre-existing arthritis in both hips. According to plaintiff, no reasonable person could have reached a contrary conclusion on causation in view of the medical evidence presented. Further, he maintains he was entitled to a presumption of medical causation as to his back and hip complaints under Housley v. Cerise, 579 So.2d 973, 980 (La. 1991), since he was pain free from the time he received the steroid injection in his right hip in December 2004 until the July 2005 accident, but then began experiencing pain in his back and hips shortly after the accident. Additionally, plaintiff contends that because the jury found that he was injured in the accident, it was error for the jury not to find that all of his medical complaints were attributable to the accident, entitling him to recovery for all past medical expenses, as well as increased general damages.
In response, GEICO contends there was a rational basis for the jury's verdict, which was that the jury rejected plaintiff's claims that his hip and thoracic spine problems were attributable to the 2005 accident. GEICO notes that the jury's conclusion is a factual finding that cannot be reversed on appeal absent manifest error. In arguing that the record supports the jury's verdict, GEICO relies on extensive medical evidence establishing that plaintiff had a longstanding, chronic history of bilateral hip and mid-back/thoracic spine pain prior to the 2005 accident. GEICO also notes that an issue was raised as to plaintiff's credibility by the inconsistency between his trial testimony regarding his alleged injuries and his contemporaneous statement that he was not injured in the 2005 accident, as well as his deposition testimony two years later indicating he had only injured his upper back in the accident. There were also several conflicts between plaintiff's trial testimony and that of other witnesses. Additionally, plaintiff was involved in another accident after the one at issue herein and filed a separate suit claiming he sustained back and hip injuries as a result of the later accident.
A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors 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 men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. Marroy v. Hertzak, 11-0403 (La. App. 1st Cir. 9/14/11), 77 So.3d 307, 316. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the 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. Marroy, 11 So.3d at 316.
The standard of review for a JNOV on appeal is a two-part inquiry. First, the appellate court must first determine if the trial court erred in granting the JNOV. Griffin v. Louisiana Sheriffs Auto Risk Association, 99-2944 (La. App. 1st Cir. 6/22/01), 802 So.2d 691, 699, writ denied, 01-2117 (La. 11/9/01), 801 So.2d 376. This is done by using the aforementioned criteria just as the trial court does in deciding whether or not to grant the motion. After determining that the trial court correctly applied its standard of review as to the jury verdict, the appellate court then reviews the JNOV using the manifest error standard of review. Griffin, 802 So.2d at 699.
The rigorous standard of a JNOV is based upon the principle that the jury is the trier-of-fact in a jury trial. Trunk v. Medical Center of Louisiana at New Orleans, 04-0181 (La. 10/19/04), 885 So.2d 534, 537. Therefore, if reasonable persons could have arrived at the same verdict given the evidence presented to the jury, then a JNOV is improper. Cavalier v. State, ex rel Department of Transportation and Development, 08-0561 (La. App. 1st Cir. 9/12/08), 994 So.2d 635, 644. Further, if a trial judge determines a JNOV is warranted because reasonable persons could not differ in deciding that an award was abusively high or low, then the trial judge must determine the proper amount of damages. Cavalier, 994 So.2d at 644.
Thus, we must inquire whether the evidence overwhelmingly supports plaintiff's contentions that the 2005 accident caused his thoracic back problem and aggravated his pre-existing hip condition, and that the general damage award made by the trial court was abusively low. If reasonable jurors in the exercise of impartial judgment could reach the conclusion that these injuries were not attributable to the 2005 accident, then the trial court correctly denied the JNOV to the extent that it sought recovery for these injuries. In that case, we must then conduct a review of the general damage award made by the trial court based on its independent assessment of the damages. Cavalier, 994 So.2d at 645.
In rendering judgment on plaintiff's motion for JNOV in the instant case, the trial court gave written reasons for judgment stating, in pertinent part:
Plaintiff argues that given the jury's finding of injury, there should be an award for all of the plaintiff's medical specials, where there was an aggravation of a pre-existing condition and where medical treatment was undertaken in good faith. The court does not agree. The jury's award of medical specials further clearly reflects that the jury rejected plaintiff's claims that any other injuries or complaints were causally related to the accident. It is not error for the jury to find that some of plaintiff's complaints were related to the accident, while others were not, and the court cannot say that the jury's failure to award the remaining medicals of $98,915.42 was in error or unreasonable.
In this case, the jury was faced with two permissible views of the evidence concerning the causation of plaintiff's alleged injuries. Given the relatively small portion of the past medical expenses it awarded, it is clear that the jury did not find all of plaintiff's alleged injuries attributable to the 2005 accident. Based on our review of the entirety of the evidence, and particularly considering plaintiff's past medical history, we find the jury was not unreasonable in rejecting plaintiff's claims that his hip and thoracic back problems were aggravated and/or caused by the 2005 accident.
Conflicting medical evidence was presented at trial concerning causation of plaintiff's thoracic back and hip complaints. Dr. Kevin Darr, the orthopedic surgeon who performed both of plaintiff's hip replacement surgeries, gave his expert opinion that plaintiff's back complaints, as well as an aggravation of his pre-existing hip problems, were attributable to the 2005 accident. However, Dr. Darr conceded that he believed plaintiff would have had issues with his right hip regardless of whether he had been involved in this accident. Moreover, Dr. Dan-admitted that he had not reviewed plaintiff's prior medical records and that his opinion was based on plaintiff's subjective complaints and his belief that plaintiff had not experienced any back complaints prior to the 2005 accident. However, to the contrary, plaintiff's past medical records reflected that he had degenerative arthritis and a compression deformity in his thoracic spine as early as September 1996, and had complained of thoracic back pain on numerous occasions prior to the 2005 accident. In fact, at an office visit with Dr. Capezio in November 1996, plaintiff complained of upper back pain that he stated began in February 1995. Further, in an October 7, 1999 letter, Dr. Capezio opined that plaintiff's significant hip problems caused him to have a seventy-five percent subjective disability due to his work limitations.
Moreover, GEICO presented the expert testimony of Dr. James Butler, an orthopedic surgeon, who disagreed with Dr. Darr's opinion that plaintiff's hip and thoracic back complaints were relatable to the 2005 accident. It was Dr. Butler's opinion that the only injuries attributable to the 2005 accident were plaintiff's complaints of a stiff neck and shoulders for which he consulted Dr. Saguiguit shortly after the accident and received physical therapy for approximately one month. Although Dr. Butler saw plaintiff for evaluation on only one occasion, unlike Dr. Darr, he reviewed plaintiff's pre-2005 medical records in formulating his opinion. In doing so, Dr. Butler noted that the structural changes in plaintiff's hips and thoracic spine were longstanding and that there was no evidence of any changes after the 2005 accident.
Further, plaintiff's trial testimony that he had never experienced thoracic back pain until the 2005 accident and that his right hip condition was aggravated by the accident conflicted with Dr. Capezio's deposition testimony that plaintiff complained to her of thoracic back pain in November 1996, as well as his statement at the time of the accident that he was not injured. Additionally, plaintiff's response in 2007 to a defense interrogatory asking him to describe the injuries sustained in the 2005 accident listed only shoulder, neck, and back pain. No reference was made to an aggravation of his pre-existing hip condition. Further, in a deposition taken over two years after the 2005 accident, plaintiff testified that the only injury he sustained in the accident was to his upper back/thoracic spine. When specifically questioned at the deposition as to whether his right hip problems were implicated in the 2005 accident, plaintiff replied in the negative. In explanation of the inconsistencies between his pre-trial and trial statements, plaintiff claimed that he believed defense counsel's questions were directed only at new injuries and not at the aggravation of his pre-existing injuries. In further explanation, he also claimed that even though his right hip began hurting shortly after the accident, it only gradually became severe.
There was additional conflicting evidence presented at trial regarding the extent and duration of plaintiff's pre-existing hip pain and resulting limitations prior to the 2005 accident. Plaintiff claimed that he had not experienced severe pain in his hips for at least ten years prior to the accident. However, Dr. Capezio testified in her deposition that plaintiff complained of severe arthritis in his right hip at his final visit in May 2002. In fact, Dr. Capezio testified that plaintiff had severe arthritis and experienced pain throughout the time she treated him, a period from August 1996 until May 2002.
Additionally, both Dr. Butler and Dr. Capezio opined that plaintiff receiving a steroid injection in his right hip seven months prior to the accident was indicative that he was having significant symptoms and/or pain at that time. Both physicians testified that such injections are intended to give only temporary relief from symptoms and are generally a last step before surgery. Further, despite plaintiff's assertions to the contrary, defendant also presented evidence at trial that more than one of plaintiff's physicians had seriously discussed hip replacement surgery with him prior to the 2005 accident.
The deposition of plaintiff's former internist, Dr. Lisa Abrams, also was introduced at trial to further establish plaintiff's history of pre-existing back and hip complaints. Four months before the accident at issue, Dr. Abrams gave plaintiff a prescription for hydrocodone with acetaminophen for pain. She testified that she probably gave him the prescription for joint pain, although her notes did not indicate which joint. Yet, plaintiff gave conflicting testimony at trial, asserting that Dr. Abrams gave him the prescription for pain associated with his severe sinusitis.
Thus, in rendering its verdict, the jury was required to evaluate the credibility of witnesses and resolve conflicting evidence. In doing so, it was within the jury's prerogative to accept or reject all or part of the testimony of any witness, including the testimony of the expert witnesses. Fleniken v. Entergy Corporation, 00-1824 (La. App. 1st Cir. 2/16/01), 780 So.2d 1175, 1195-96, writs denied, 01-1268, 01-1305, 01-1317 (La. 6/15/01), 793 So.2d 1250, 1253-54. In cases such as this one where the testimony of expert witnesses differs, the jury has great, even vast, discretion in determining the credibility of the evidence, and a finding of fact in this regard will not be overturned unless clearly wrong. Cotton v. State Farm Mutual Auto. Insurance Company, 10-1609 (La. App. 1st Cir. 5/6/11), 65 So.3d213, 220.
Based on the verdict returned, it is apparent that: (1) the jury accepted Dr. Butler's expert opinion that only those complaints related to plaintiff's stiff neck and shoulder were attributable to the 2005 accident; and (2) the jury rejected plaintiff's claim that his pre-exiting hip condition was aggravated and his thoracic back problem was caused by the 2005 accident. Considering the record before us, we cannot say that the evidence pointed so strongly and overwhelmingly in favor of plaintiff s claim that his hip and thoracic back complaints were relatable to the 2005 accident that reasonable jurors could not reach a contrary verdict. Indeed, the opposing evidence presented by GEICO was such that reasonable and fair-minded jurors in the exercise of impartial judgment could have rejected plaintiff's claims regarding causation. Accordingly, the trial court properly denied plaintiff's motion for JNOV to the extent that it sought recovery for injuries to his hips and thoracic spine.
We find no merit in plaintiff's contention that he was entitled to a presumption of medical causation under Housley, 579 So.2d at 980, since he was pain free from the time he received the steroid injection in his right hip in December 2004 until the July 2005 accident, after which he began experiencing pain in his back and hips. In Housley, 579 So.2d at 980, the Louisiana Supreme Court established three essential requirements a plaintiff must establish before he can benefit from a presumption of causation: (1) good health prior to the accident at issue; (2) symptoms of the alleged injury appear and continuously manifest themselves subsequent to the accident at issue; and (3) medical evidence demonstrates a reasonable possibility of causation exists between the accident and the injury claimed. In this case, the evidence did not establish that plaintiff was in good health prior to the 2005 accident. Rather, it revealed that plaintiff had a longstanding history of chronic hip and back problems. While the steroid injection he received in December 2004 may have alleviated his pain and symptoms for a time, the medical evidence was clear that such relief was only temporary and not a permanent cure for his chronic problems.
Moreover, we also find no abuse of discretion in the amount of the award made by the trial court in partially granting plaintiff's motion for JNOV on the issue of general damages. The discretion vested in the trier-of-fact in assessing general damages is great, and even vast, such that an appellate court should rarely disturb such awards. Youn v. Maritime Overseas Corporation, 623 So.2d 1257, 1261 (La. 1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). An appellate court should increase or reduce the award only when the award is, in either direction, beyond that which a reasonable trier-of-fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances. Youn, 623 So.2d at 1261.
In this case, the trial court concluded the jury erred in awarding past medical expenses related to plaintiff's neck and shoulder injuries, while awarding no general damages for those injuries. Consequently, the trial court awarded general damages to plaintiff in the amount of $3,000.00 based on it finding that plaintiff received treatment for his stiff neck and shoulder for approximately one month following the accident. Considering the record as a whole, as well as the vast discretion accorded the trier-of-fact in assessing general damages, we cannot say that the trial court abused its discretion. The amount awarded was not abusively low.
We also find no merit in plaintiff's contention that the trial court erred in failing to award damages for loss of enjoyment of life. Such awards are made for detrimental alterations in a plaintiff's life or lifestyle or his inability to participate in the activities or pleasures of life that he formerly enjoyed prior to an injury. Guillory v. Lee, 09-0075 (La. 6/26/09), 16 So.3d 1104, 1126. Plaintiff's argument that he is entitled to such an award is based on his claim that the 2005 accident caused and/or aggravated his back and hip injuries, thereby preventing him from participating in leisure activities he formerly enjoyed. However, since we have concluded that the jury reasonably rejected plaintiff's claim that his back and hip injuries were relatable to the 2005 accident, there is no basis for an award for loss of enjoyment of life, since it is those injuries that allegedly restricted plaintiff's activities. No evidence was presented that plaintiff's short-term neck and shoulder injuries, the only injuries the jury attributed to the accident, caused any alteration in his lifestyle or restriction of his activities.
CLAIM FOR PENALTIES AND ATTORNEY FEES
Plaintiff argues that the trial court erred in denying his motion for partial summary judgment on his claim for bad faith penalties and attorney fees and in granting GEICO's opposing motion for partial summary judgment seeking dismissal of this claim. Plaintiff maintains GEICO is liable for penalties and attorney fees under McDill v. Utica Mutual Insurance Company, 475 So.2d 1085, and La. R.S. 22:1892 because it failed to proffer an unconditional tender under its UM policy despite satisfactory proof that his injuries exceeded the underlying liability policy limits. Plaintiff further argues the trial court also erred in dismissing his claim for bad faith penalties and attorney fees with prejudice, since doing so precludes him from re-urging this claim in the future if the facts so warrant.
Plaintiff's contentions lack merit. As a result of a pre-trial settlement with Lansing and his liability insurer, the available policy limits of $9,900.00 were tendered to plaintiff. Since UM coverage is "excess," it is triggered only when the plaintiff's damages exceed the limits of the tortfeasor's liability insurance. See White v. Patterson, 409 So.2d 290, 292 (La. App. 1st Cir. 1981), writ denied, 412 So.2d 1110 (La. 1982). In this case, the jury awarded plaintiff $924.19 for past medical expenses and the trial court granted a partial JNOV to award him general damages of $3,000.00, for a total recovery of $3,924,19. Thus, plaintiff's damages did not exceed the limits of the tortfeasor's liability policy. It is illogical to contend that GEICO is liable to plaintiff for bad faith penalties and attorney fees when there no coverage under it's UM policy.
Further, in ruling on the motion for JNOV, the trial court specifically found that GEICO "was not arbitrary and capacious in contesting the causation of plaintiff's injuries or complaints or in failing to make a tender...." Considering plaintiff's extensive past history of chronic hip and back problems, as well as his pre-trial statements regarding the injuries he sustained in the 2005 accident, we find no manifest error in the trial court's conclusion. The trial court did not err in dismissing plaintiff's bad faith claims with prejudice since he failed to prove this claim at trial.
ADMISSION OF VIDEO MEDICAL DEPOSITIONS
Plaintiff argues that the trial court committed reversible error in allowing the jury to view the video depositions of two physicians who treated him ten years prior to the accident at issue. He contends the video depositions should have been excluded under La. C.E. art. 403, because the probative value of such long-ago treatment was substantially outweighed by the danger of confusing and unfairly prejudicing the jury.
Louisiana Code of Evidence article 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.
Generally, all relevant evidence is admissible. La. C.E. art. 402. Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. C.E. art. 401. Whether evidence is relevant and admissible is within the discretion of the trial court, and its ruling will not be disturbed on appeal in the absence of a clear abuse of discretion. Boudreaux v. Mid-Continent Casualty, 05-2453 (La. App. 1st Cir. 11/3/06), 950 So.2d 839, 945, writ denied, 06-2775 (La. 1/26/07), 948 So.2d 171.
Contrary to plaintiff's contentions, the video depositions of Dr. Capazino, a rheumatologist, and Dr. Lisa Abrams, an internist, do not relate exclusively to medical treatment rendered ten years prior to the 2005 accident. Dr. Capazino treated plaintiff from August 1996 until May 2002, approximately three years before the vehicular accident. Dr. Abrams' treatment of plaintiff began in 1999 and did not terminate until shortly after the 2005 accident. Moreover, both physicians treated plaintiff for complaints of back and hip pain similar to those involved in the instant matter. Accordingly, their testimony regarding plaintiff's complaints and treatment was highly relevant and probative at trial with respect to the disputed issue of causation. Nor has plaintiff shown any matter in which the admission of these video depositions was unfairly prejudicial to him. Under these circumstances, we find no abuse of discretion in the trial court's admission of this evidence.
EVIDENCE OF CRIMINAL CONVICTION
Lastly, plaintiff contends the trial court erred in allowing evidence regarding his prior felony conviction to be admitted in violation of La. C.E. art. 609.
In civil cases, the admissibility of evidence of a witness' prior criminal conviction is governed by La. C.E. art. 609, which provides, in pertinent part:
A. General civil rule. For the purpose of attacking the credibility of a witness in civil cases, no evidence of the details of the crime of which he was convicted is admissible. However, evidence of the name of the crime of which he was convicted and the date of conviction is admissible if the crime:
(1) Was punishable by death or imprisonment in excess of six months under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party; or
(2) Involved dishonesty or false statement, regardless of the punishment. [Emphasis in text added.]
At trial, plaintiff was questioned on cross-examination regarding his conviction in 2006 for second-degree injuring public records, which provides for a sentence of imprisonment, with or without hard labor, of not more than one year and/or a fine of not more than $1,000.00, or both. Over objection that the question exceeded the scope of Article 609 and went into the details of the offense, defense counsel was allowed to ask defendant several times whether the conviction was a felony, to which he responded in the affirmative. On appeal, plaintiff argues that the admission of this evidence was irrelevant, prejudicial, and constituted an unfair attack on his character. In particular, he maintains that defense counsel's references to the conviction as a felony unfairly prejudiced him.
Louisiana Revised Statutes 14:132 provides, in pertinent part:
B. Second degree injuring public records is the intentional removal, mutilation, destruction, alteration, falsification, or concealment of any record, document, or other thing, defined as a public record pursuant to R.S. 44:1 et seq. and required to be preserved in any public office or by any person or public officer pursuant to R.S. 44:36.
We find no error in the trial court allowing admission of testimony as to the date and name of the crime of which plaintiff was convicted. Since the crime was punishable by imprisonment in excess of six months, Article 609(A)(1) authorized the admission of this evidence, as long as its probative value outweighed its prejudicial effect. Although the trial court did not make an explicit finding that the probative value of admitting the evidence outweighed its prejudicial effect, this conclusion was implicit in its ruling, since it is presumed that a trial court properly applied the law in the absence of evidence to the contrary. See Motton v. Travelers Insurance Company, 484 So.2d 816, 819-20 (La. App. 1st Cir. 1986); Blackwell v. Blackwell, 413 So.2d 1331, 1333 (La. App. 1st Cir. 1982). Moreover, the evidence also was admissible pursuant to Article 609(A)(2) without such a finding, since plaintiff's conviction involved the falsification of a public record.
See State v. Magidson, 06-1236 (La. App. 1st Cir. 3/23/07) (unpublished).
However, the trial court erred in allowing defense counsel to question plaintiff regarding the classification of the conviction as a felony, which exceeded the scope of admissible evidence allowed by Article 609. Under this article, only evidence as to the date and name of a witness' conviction is admissible. Nevertheless, the erroneous admission of evidence constitutes reversible error only if it prejudiced the party objecting to its admission. La. C.E. art. 103; Emery v. Owens-Corporation, 00-2144 (La. App. 1st Cir. 11/9/01), 813 So.2d 441, 449, writ denied, 02-0635 (La. 5/10/02), 815 So.2d 842. An error is prejudicial when it affects the final result of the case and works adversely to a substantial right of a party. Duzon v. Stallworth, 01-1187 (La. App. 1st Cir. 12/11/02), 866 So.2d 837, 861, writs denied, 03-0589 (La. 5/2/03), 842 So.2d 1101 and 03-0605 (La. 5/2/03), 842 So.2d 1110. Therefore, we must determine whether the error, when compared to the record in its totality, had a substantial effect on the outcome of the case. See Emery, 813 So.2dat449.
Based on our review of the record, we find the error in admitting evidence regarding the classification of plaintiff's conviction as a felony did not affect any of his substantial rights or affect the outcome of this case, despite plaintiff's contention that this evidence adversely affected the jury's evaluation of his credibility. As previously stated, evidence as to the existence of the conviction itself was properly admitted. Moreover, the record contains numerous other instances wherein plaintiff's credibility was called into question by conflicting testimony and inconsistencies in his own statements. Additional doubt also may have been cast on plaintiff's credibility due to the fact that he filed a suit arising from a separate incident wherein he claimed injuries similar to those claimed in the instant suit. In light of these facts, the additional information that plaintiff's conviction was classified as a felony did not have a substantial effect on the jury's evaluation of his credibility. Considering the circumstances, the error in allowing plaintiff to be questioned as to the felony classification of the conviction, when compared to the record as a whole, was not prejudicial and had no substantial effect on the outcome of the case. Consequently, the error was harmless and did not affect plaintiff's substantial rights.
During the pendency of this appeal, plaintiff's counsel sent correspondence to this Court requesting that, in reviewing this matter, we consider a gubernatorial pardon granted to plaintiff after the rendition of the judgment now appealed. However, under La. C.C.P. art. 2164, an appellate court must render its judgment based on the record on appeal. No evidence of a pardon was presented in the proceedings before the trial court. As an appellate court, we cannot review evidence that is not in the record on appeal and have no jurisdiction to receive new evidence. Lyons v. Terrebonne Parish School Board, 03-0325 (La. App. 1st Cir. 12/31/03), 868 So.2d 739, 740. Moreover, we note that even when a pardon is granted, evidence of the conviction may still be permissible. The granting of a pardon precludes the admission of otherwise admissible evidence concerning the existence of a conviction only in situations where the pardon was "explicitly based on a finding of innocence." See La. C.E. art. 609(C).
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CONCLUSION
For the reasons assigned, the judgment of the trial court is affirmed. Plaintiff-appellant is to pay all costs of this appeal.
AFFIRMED.