C :21:00: Case Settled - This matter came on for a two-day bench trial. Present in court: Mr. Roy Maughan, Jr. and Mr.

Transcription

1 C :21:00: Case Settled - This matter came on for a two-day bench trial. Present in court: Mr. Roy Maughan, Jr. and Mr. Joshua Roy, counsels for plaintiff; Mr. Jake Airey and Mr. Jimmy Kuhn, counsels for defendants. At this time, a settlement was put on the record as follows: the defendants will pay plaintiff $120,000; each party to bear their own costs; pay within 30 days. Judgment is to be signed accordingly upon presentation. (REPORTED BY: PANSY M. ALLEN ON MARCH 15, 2018)

2 Ii m mlll "' fii -...,_..,,_ GARLAND SIMS NUMBER SECTION23. :...., VERSUS 19TH JUDICIAL DISTRICT COURT---...: f.,_:-:, GLEN RUIZ, AIR LIQUIDE INDUSTRIAL US LP., AND ZURICH AMERICAN INSURANCE COMP ANY JOINT PRE-TRIAL INSERTS H F ::: ONRO : :::: - -. \ 0 L cos1?$ /.fl/ _, s ; 1. PLAINTIFF'S CONTENTIONS FACTS OF ACCIDENT On June 5, 2015, Defendant; Glenn Ruiz ("Ruiz"), was driving eastbound on Airline Highway. As he approached the Scenic Highway exit, he failed to notice Plaintiff, Garland Sims ("Sims"), turning right on to Scenic Highway and struck the rear of Mr. Sims' vehicle. Ruiz was driving highway speeds and Mr. Sims was slowing to make a turn. These facts were confirmed by Glenn Ruiz himself in the statement he provided in the accident report as well as his deposition. The driver who rear-ends another vehicle is presumed to be liable for the accident. William v. Melancon, , p 3 (La. App. 4/1/09), 9 So. 3d 310, This rule is - based on the premise that the following motorist whose vehicle rear ends a preceding motorist either has failed his responsibility to keep a sh arp lookout or has followed at a distance from which the preceding vehicle which is insufficient to allow him to stop safely under normal circumstances. Id at 313. e ; _!1 Under the circumstances, it is clear that Mr. Ruiz will be faulted with 100% liability in this rear-end collision. His negligence is indisputable inasmuch as there is no question he rearended Plaintiff and he must compensate Mr. Sims for the general and special damages which are a foreseeable consequence of his actions. INJURIES AND DAMGES The accident occurred at highways speeds, thus the collision was substantial. At the time of the accident, Sims' most immediate injury was to his right shoulder. He immediately sought treatment at Lake After Hours and complained of back pain and bilateral shoulder pain. He sought treatment with Dr. Alan C. Schroeder, first seeing him on June 11, Dr. Schroeder 1

3 diagnosed Sims with cervical degenerative disc disease, lumbago scoliosis, and bilateral shoulder inflammation with right pain greater than left - all injuries stemming from this accident. Dr. Schroeder prescribed physical therapy treatment. But after several weeks without improvement, Sims requested a follow-up for pain in his shoulder. A July 2, 2015 MRI showed anterior inferior quadrant par labral cyst and irregulates which represented a labral tear in his right shoulder, mild rotator cuff tendinosis with superimpose low grade articular surface portion thickness tearing acromion lateral tilting, and subacromial bursitis. After exhausting all conservative measures Dr. Schroeder performed right shoulder arthroscopic anterior labral repair, orthoscopic extensive debridement and subacromial decompression surgery on September 24, After the surgery Sims rated his right shoulder pain as 7.5/10. He was out of work for several months due to his right shoulder injury necessitating surgery and he continued to treat for the right shoulder injury for months after the accident. Sims stated in hls deposition that he feels his right shoulder is seventy percent of what it used to be and that his right shoulder pain remains until this day. Despite having surgery and many physical therapy treatments, he has not recovered from his injury. Sims is forced to work with this injury and it with not likely ever improve to the capacity it was before this accident. The injuries sustained by Plaintiff have caused him prolonged pain and suffering, extending to the present date, and will continue to cause Plaintiff future pain, suffering, and medical expenses. Plaintiff, Sims, itemizes his damages as follows: Physicians' professional services, past and future; Prescription medications, past and future; physical pain and suffering resulting from her injuries, past and future; mental pain, anguish, suffering, inconvenience and loss of enjoyment of life, past and future; permanent impairment of his bodily functions; lost wage/profits; and other injury to be shown at the trial of this matter. 2

4 II. DEFENDANTS' CONTENTIONS Facts of the Accident. On June 5, 2015, Mr. Garland Sims was driving a semi-truck that sustained minor damage when contacted from behind by a pickup truck Mr. Glen Ruiz was driving. Mr. Ruiz testified that, while Mr. Sims stated that he was intending to exit Airline Hwy., Mr. Sims was _ actually stopped in the middle of Airline Hwy. Further, the tail lights on Mr. Sims truck were extremely dirty and hard to see at the time of the accident. Louisiana's jurisprudence recognizes several situations where, while the following car may have impacted the lead car from the rear, the following car is not presumed negligent, such as when the lead car fails to safety change lanes or has faulty taillights. Robinson v. Flowers, 41,798 (La App. 2 Cir. 1/24/07, 5), 949 So.2d 549, 553. Further, the First Circuit has held that "(i]t is well settled that one who intends to tum from or stop upon a roadway must first ascertain that the maneuver can be made with reasonable safety, and then give an appropriate signal to following vehicles." See Harrell v. O'Qutn, 554 So.2d 837, 839 (La App. 1 Cir. 1989). Thus, Plaintiff disputes that he is at fault in this accident. Plaintiff's extensive pre-accident injuries and medical history. Mr. Sims has been in an astonishing number of car accidents, as well as other injury causing events. So many, in fact, that at his deposition he could not remember that, a few days prior to the June 5, 2015 events set forth in his petition, he received an injection on May 28, 2015 in his right shoulder for pain relating to a May 14, 2015 accident wherein Mr. Sims totaled his vehicle while passing in a no-passing zone. Mr. Sims also indicated he had a 9 out of 10 in pain on May 28, 2015 at his doctor's appointment. In bis deposition, Mr. Sims completely denied having any right shoulder pain prior to the June 5, 2015 accident. Dr. Alan Schroeder testified that in addition to the right shoulder injection his office gave Mr. Sims on May 28, 2015, Mr. Sims was also prescribed physical therapy and narcotic pain relievers for his right shoulder pain. When Dr. Schroeder perfonned surgery on Mr. Sims, he noted tendinitis in Mr. Sims shoulder, and testified that he could not tell from the MRI or while examining Mr. Sim's shoulder during surgery whether Mr. Sims small tear pre-existed the June 5, 2015 accident. He also testified that nothing on Mr. Sims' MRI absolutely required surgery and that conservative room for treatment existed. On July 19, 2015, after the June 5, 2015 accident complained of herein, Mr. Sims fell while at a Honeywell plant and injured himself, including his surgically repaired left shoulder 3

5 that he had previously injured in 2014 while lifting a concrete hose. Records also indicate that Mr. Sims stated that he "re aggravated" his right shoulder during this fall. Mr. Sims estimated that was out of work for 2 or 3 months relating solely to the slip and fall at the Honeywell plant. Mr. Sims also filed suit against Honeywell relating to that accident. Plaintiff disputes that the minor accident at issue herein caused Mr. Sims alleged injuries, especially when Mr. Sims was in a much more severe accident only days prior, and was actively seeking medical treatment for his right shoulder, treatment which Mr. Sims repeatedly denied receiving during his deposition. Mr. Sims also indicated to a physical therapist that he reaggravated his right shoulder as a result of the Honeywell fall. While Plaintiff denies that Mr. Sims is entitled to any damages, Dr. Schroeder sent Mr. Sims for a vocational capacity evaluation summary on March 30, Mr Sims was cleared to continue his work as a truck driver, and thus Plaintiff has no claim for future lost wages or any lost wages since Further, the report contradicts Mr. Sims assertions that he lost 30% of the use of this right shoulder. III. ESTABLISHED FACTS 1. On June 5, 2015, Air Liquide Industrial US LP employee, Glenn Ruiz, was operating a 2012 Ford Pickup truck traveling in an easterly direction along Airline Highway in Baton Rouge, Louisiana 2. On June 5, 2015, Plaintiff, Garland Sims, was driving a 2009 Peterbilt truck travelling in an easterly direction along Airline Highway directly in front of Glenn Ruiz's truck. 3. The vehicle operated by Glenn Ruiz struck the rear of the vehicle Garland Sims _was driving. 4. Defendant, Glenn Ruiz, was in the course and scope of his employment with Air Liquide Industrial US LP, at the time of the accident. IV. CONTESTED ISSUES OF FACTS PLAINTIFF: 1. The dollar value of the damages to which the Plaintiff may be entitled to recover from Defendants. DEFENDANT: 1. The injuries Mr. Sims asserts in this lawsuit were caused by a prior accident. 2. Mr. Sims is not permanently injured. 4

6 3. Mr. Sims was in a motor vehicle accident on May 14, 2015 where he totaled his vehicle while passing in a no passing zone. 4. Mr. Sims sought medical treatment for a right shoulder injury as a result of the May 14, 2015 accident, including receive an injection in his right shoulder, as well as being prescribed narcotic pain medicine. 5. Mr. Sims denied that he had an injury to his right shoulder prior to June 5, 2015 in his deposition. CONTESTED ISSUES OF LAW: 1. Whether Glen Ruiz is at fault in the June 5, 2015 accident. 2. Whether the June 5, 2015 accident caused Mr. Sims alleged injuries. PLAINTIFF'S WITNESSES 1. Garland Sims; 2. Glenn Ruiz; 3. Officer Sedrick Knight, investigating officer; 4. Representative of Air Liquide Industrial US LP; 5. All of Plaintiffs doctors and/or treating physicians that treated him for injuries related to this accident, including but not limited to, Lake After Hours, Baton Rouge Radiology, Bone & Joint Clime of Baton Rouge/ Dr. Alan Schroeder, Diversified Professional, Incorporated, Dr. Mark Mouton, Moreau Physical Therapy, Orthopedic Surgery Center, and Richard Rathbone Clinic. 6. Any witnesses needed to introduce and/or authenticate any exhibit. 7. Any witness listed by any other party. 8. Any impeachment or rebuttal witnesses allowed by Louisiana Code of Civil Procedure and/or Louisiana Code of Evidence. Plaintiff reserves the right to supplement this witness list upon giving notice to opposing counsel prior to trial. DEFENDANT'S WITNESSES l. Garland Sims; 2. Glenn Ruiz; 3. Representative of Air Liquide Industrial US LP; s

7 4. All of Plaintiff's medical providers that treated him for injuries, including, but not limited to, Lake After Hours, Baton Rouge Radiology, Bone & Joint Clinic of Baton Rouge/ Dr. Alan Schroeder, Dr. C. Chambliss Harrod, Diversified Professional, Incorporated, Dr. Mark Mouton, Moreau Physical Therapy, Orthopedic Surgery Center, and Richard Rathbone Clinic, Chase Roy, Downtown Physical Therapy and Industrial Center. 5. Any witnesses needed to introduce and/or authenticate any exhibit. 6. Any witness listed by any other party. 7. Any witness identified during discovery. 8. Any impeachment or rebuttal witnesses allowed by Louisiana Code of Civil Procedure and/or Louisiana Code of Evidence. Defendants reserve the right to supplement this witness list upon giving notice to opposing counsel prior to trial. V. PLAINTIFF'S EXIIlBITS I. Uniform Motor Vehicle Traffic Crash Report dated June 5, 2015; 2. Entire Employee file of Glenn Ruiz with Air Liquide including but not limited to, Personnel File, Disciplinary Warning Report from Air Liquide concerning Glenn Ruiz; 3. Any and all reports of estimates of property damage to any vehicle involved in the subject accident; 4. Any and all deposition transcripts; 5. Written and recorded statements of any party/individual deposed in the subject matter; 6. Any and all pleadings, answers to interrogatories, answers to request for production of documents, and answers to request for admissions; 9. Any and all Medical records, bills and reports detailing Plaintiff's treatment, including but not limited to, Lake After Hours, Baton Rouge Radiology, Bone & Joint Clinic of Baton Rouge/ Dr. Alan Schroeder, Diversified Professional, Incorporated, Dr. Mark Mouton, Moreau Physical Therapy, Orthopedic Surgery Center, Richard Rathbone Clinic 6

8 7. Garland Sims' IRS form 1099 and tax returns with supporting documentation and other docwnentation necessary to show loss wages/profits; 8. Photographs and diagrams where the incident occurred and of the vehicles involved; 9. Reports, of Diagnostic Tests such as MRI, CT Scans, X-Rays, etc.; I 0. Any exhibit listed by any other party; 11. Any impeachment or rebuttal evidence allowed by Louisiana Code of Civil Procedure and/or Louisiana Code of Evidence 12. Any exhibit revealed through further discovery. Plaintiff reserves the right to supplement this exhibit list upon giving notice to opposing counsel prior to the trial of this matter. VI. DEFENDANT'S EXHIBITS I. Any and all pleadings, answers to interrogatories, answers to request for production of documents, and answers to request for admissions; 2. Any and all Medical records, bills and reports detailing Plaintiffs treatment, including but not limited to, Lake After Hours, Baton Rouge Radiology, Bone & Joint Clinic of Baton Rouge/ Dr. Alan Schroeder, Dr. C. Chambliss Harodd, Ability Services Network, Klienpeter Physical Therapy, Diversified Professional, Incorporated, Dr. Mark Mouton, Moreau Physical Therapy,. Orthopedic Surgery Center, Richard Rathbone Clinic Chase Roy, Dqwntown Physical Therapy and Industrial Center. 3. Photographs and diagrams where the incident occurred and of the vehicles involved; 4. Reports, of Diagnostic Tests such as MRI, CT Scans, X-Rays, etc. 5. Any exhibit listed by any other party; 6. Any impeachment or rebuttal evidence allowed by Louisiana Code of Civil Procedure and/or Louisiana Code of Evidence 7. Any exhibit revealed through further discovery. Defendants reserve the right to supplement this exhibit list upon giving notice to opposing counsel prior to the trial of this matter. 7

9 VII. ADDITIONAL MATTERS: None at this time. VIII. ESTIMATED LENGTH OF TRIAL Plaintiff believes he can present her case in two (2) days. Defendant<: believe they can present their ca e in two (2) days. CERTIFICATION We hereby certify to the court that we have conferred pursuant to the rules of the Civil Rules of the 19 th Judicial District Court for the purpose of preparing this Pre-Trial Order; and, that we shall promptly attend the Pre-Trial Conference to be held in this matter. RESPECTFULLY SUBMITTED: MAUGHAN LAW FIRM C2- C2 RO H. MAUGHAN, JR.,# 72 N SHA D. PATEL, #3 11 JO A D. ROY, #347 4 CONNELL'S P L BATON ROUGE, LOUISIANA TELEPHONE: (225) FAX: (225) Attorneys for Garland Sims &-. SM. ARNER #19589 BRA J. CHMAN #5578 J AIREY #27933 SHER GARNER CAHILL RICHTER 909 Poydras Street, Twenty-eighth Floor New Orleans, Louisiana Telephone: (504) Facsimile: (504) Attorneys for Glen Ruiz, Air Liquide Industrial US. L.P., Zurich American Insurance Company 8