Huey Antill, Jr. Versus State Farm Mutual Insurance Company, John Halder, and Allstate Insurance Company ( 2020 )

HUEY ANTILL, JR. NO. 20-CA-131
C/W
VERSUS 20-CA-132
STATE FARM MUTUAL INSURANCE FIFTH CIRCUIT
COMPANY, JOHN HALDER, AND ALLSTATE
INSURANCE COMPANY COURT OF APPEAL
C/W STATE OF LOUISIANA
JAY PERRY ROHRBACKER AND SPOUSE,
SHAWN ROHRBACKER
VERSUS
JOHN HALDER & STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 770-868 C/W 769-468, DIVISION "G"
HONORABLE E. ADRIAN ADAMS, JUDGE PRESIDING
December 02, 2020
SUSAN M. CHEHARDY
CHIEF JUDGE
Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Stephen J. Windhorst
AFFIRMED
SMC
FHW
SJW
COUNSEL FOR PLAINTIFF/APPELLANT,
HUEY ANTILL, JR.
Craig S. Sossaman
David E. Wawrose, Jr.
COUNSEL FOR DEFENDANT/APPELLEE,
STATE FARM MUTUAL INSURANCE COMPANY AND JOHN HALDER
Helen M. Buckley
Stephen C. Resor
Amy Dunn Hotard
Stephannie M. England
CHEHARDY, C.J.
This is a personal injury suit arising from an automobile accident. Plaintiff,
Huey Antill, Jr., appeals a jury verdict in his favor, which assigned 15% fault to
him and awarded damages for his injuries and past medical expenses, but denied
his claim for future medical expenses. He seeks an increase in the damage awards,
future medical expenses, and reversal of the jury’s determination that he was
comparatively at fault for the accident. Defendants, State Farm Mutual
Automobile Insurance Company and John Halder (collectively, “defendants”),
have answered the appeal, seeking a reduction of the award for special damages
and reversal of the judgment ordering them to pay judicial interest and costs. For
the following reasons, we affirm.
Procedural History
Plaintiff, Huey Antill, filed suit for injuries he sustained in a rear-end
collision with a Dodge Ram 1500 pickup truck driven by defendant, John Halder,
and insured by State Farm.1 After the matter was set for a jury trial, defendants
made an offer of judgment to plaintiff in the amount of $80,000, inclusive of costs
and fees, which plaintiff declined to accept. Thereafter, both sides filed motions in
limine seeking to exclude evidence and limit testimony, which were heard and
resolved on the morning of trial. The matter then proceeded to a three-day jury
trial, at the conclusion of which the jury returned a verdict in favor of plaintiff in
the amount of $58,842.58. Specifically, the jury awarded plaintiff $5,000 for past,
present, and future physical pain and suffering, $46,842.58 for past, present, and
future medical expenses, and $7,000 for past, present, and future mental anguish
and emotional distress (including loss of enjoyment of life). The total amount
1
Plaintiff also filed suit against Allstate Insurance Company, who was dismissed from the suit,
without prejudice, prior to trial.
20-CA-131 C/W 20-CA-132 1
awarded to plaintiff was reduced by 15%, or to $50,016.19, due to the fault
attributable to him for causing the accident.
Defendants moved for a judgment on its prior offer of judgment, which
plaintiff opposed. On August 23, 2019, the trial court entered judgment in favor of
plaintiff in accordance with the jury’s verdict reflecting the final award of
$50,016.19, in addition to awarding plaintiff legal interest and costs. A notice of
judgment was mailed and issued that same date.
Post-trial motions filed by both parties followed. Plaintiff moved for a
judgment notwithstanding the verdict (“JNOV”) or, alternatively, for a new trial
conditioned on an additur. Defendants filed a motion for JNOV or remittitur.
Plaintiff also moved for a judgment taxing costs against defendants. After hearing
all of the post-trial motions, the trial court issued judgment denying both plaintiff
and defendants’ respective motions for JNOV and plaintiff’s motion for new trial.
Subsequently, the trial court issued judgment granting plaintiff’s motion to tax
costs and ordered defendants to pay $12,404.16 in costs to plaintiff. Additionally,
the trial court denied defendants’ motion for judgment on offer of judgment and
motion to tax costs, and ordered Defendants to pay plaintiff judicial interest from
the date of judicial demand in the amount of $5,982.07.
On appeal, plaintiff assigns the following errors: (1) the jury erred in
assigning fault to plaintiff; (2) defendants failed to overcome the presumption that
defendant was at fault in rear-ending plaintiff’s vehicle; (3) defendants failed to
establish that plaintiff created a sudden emergency; (4) the jury’s general damages
award was inadequate; and (5) the damages awarded for past, present, and future
pain and suffering and mental anguish are disproportionate to plaintiff’s 36 months
of treatment and the $46,842.58 in medical expenses he incurred during that time,
which the jury awarded in full.
20-CA-131 C/W 20-CA-132 2
In answer to the appeal, defendants assert the following errors: (1) the trial
court’s ruling on defendants’ motion for judgment on offer of judgment and
plaintiff’s motion to tax costs should be reversed; (2) the trial court erred and
abused its discretion in failing to award costs to defendants and failing to reduce
costs awarded to plaintiff under La. C.C.P. arts. 970 and 1920; (3) the trial court
erred and abused its discretion in failing to consider plaintiff’s liability in assessing
costs; (4) defendants should be awarded costs in the amount of $13,561.00 and
plaintiff’s award of costs should be reduced; and (5) the jury’s award of past
medical expenses should be reduced.
FACTS
The accident occurred during the morning hours of April 14, 2016, on West
Esplanade Avenue at its intersection with the northbound lanes of Power
Boulevard in Metairie, Louisiana (hereinafter “the 2016 accident”). There is a
median area located on West Esplanade between the north and southbound lanes of
Power Boulevard, which is controlled by two traffic signals: one controlling traffic
on West Esplanade at its intersection with the southbound lanes of Power
Boulevard, and the other controlling traffic on West Esplanade at its intersection
with the northbound lanes of Power Boulevard.
On the morning of the accident, plaintiff, a bartender and server in the
restaurant industry, was driving his 2005 Toyota Tundra in an easterly direction on
West Esplanade along with his guest passenger, Jay Rohrbacker. Knowing that the
roadway was damp due to an earlier rain, plaintiff was proceeding on West
Esplanade at the posted speed limit of 35 miles per hour. As they approached the
intersection and before entering the median area, both plaintiff and Rohrbacker
contend the traffic signal on West Esplanade where it intersects with the
southbound lane of Power Boulevard turned from green to yellow. Plaintiff
proceeded through the yellow light into the median area and slowed to a stop
20-CA-131 C/W 20-CA-132 3
before the second traffic signal, which controls the intersection of West Esplanade
and the northbound lanes of Power Boulevard, that plaintiff and Rohrbacker
contend had turned red. Moments thereafter, plaintiff’s vehicle was struck from
the rear by a Dodge Ram 1500 pickup truck, owned and operated by defendant,
John Hadler, and insured by State Farm Mutual Insurance Company.
Also on the morning of the accident, defendant was coming from Kenner
traveling east in the left lane of West Esplanade behind plaintiff’s vehicle at, or
slightly above, the posted speed limit.2 Defendant recalled that the roadway was
still damp from a prior light rain. After entering the intersection of West Esplanade
and the southbound lanes of Power Boulevard, defendant claimed that he observed
the traffic control signal turn from green to yellow. When he looked down from
the traffic light, defendant saw that the distance between his truck and plaintiff’s
vehicle, which had suddenly come to a stop in the middle of the intersection within
the median area, was closing in quickly and that he would not be able to stop in
time to avoid a collision. When defendant put on his brakes, the front bumper of
his truck slid into the rear bumper of plaintiff’s vehicle.
Although plaintiff immediately felt a little confused and was shaking after
the accident, he felt no immediate pain and declined emergency medical assistance
at the scene. The onset of pain from his injuries did not begin until later that
afternoon when he experienced a headache, neck pain, shoulder pain, and lower
back pain. Plaintiff was treated for his injuries over the following three years
through the date of trial. Prior to trial, a two-level fusion for a herniated disc at L5-
S1 and a bulging disc at L4-5, which plaintiff claims was caused by the 2016
accident, was recommended by his treating neurosurgeon, but had not been
performed as of the date of trial.
2
While defendant Hadler denied at trial that he was exceeding the speed limit, in an earlier
deposition he testified that he was driving at, or slightly above, the posted speed limit.
20-CA-131 C/W 20-CA-132 4
The trial evidence was directed to whether plaintiff’s back complaints and
recommended surgery were casually related to the 2016 accident, whether his other
physical complaints of injury were a result of the 2016 accident, and whether
plaintiff was comparatively at fault for causing the accident. The testimony at trial
focused on the intersection where the accident occurred; the color of the traffic
signals as the parties entered the intersection; the degree of impact between the
vehicles; whether plaintiff’s complaints of back pain and the recommendation for
future back surgery resulted from the trauma of the accident or was an aggravation
of a pre-existing back condition caused by a prior 2011 accident and further
exacerbated by a subsequent 2019 accident; and, whether plaintiff’s recommended
two-level fusion is medically warranted.
The accident was investigated by Jefferson Parish Sheriff’s Deputy Kevin
McGuffie, who characterized the damage to both vehicles as a result of the
accident as “severe.” At trial, he testified that while he had no independent
recollection of the 2016 accident, he could attest to the contents of his report.
Specifically, Deputy McGuffie stated that both drivers advised that they were
traveling east on West Esplanade in the left lane when the traffic control signal at
Power Boulevard turned from green to yellow. Both drivers also told him that
when plaintiff slowed to a stop in the median area between the north and
southbound lanes of Power Boulevard, defendant’s vehicle struck the rear of
plaintiff’s vehicle. According to Deputy McGuffie, “there was no dispute that the
light changed from green to yellow … at the point the accident occurred.”
[Emphasis supplied.] Deputy McGuffie did not recall, nor did his report reflect,
that anyone at the scene advised him that the taillights of plaintiff’s vehicle were
not functioning properly as he would have documented this in his report under
“any defects” of that vehicle. Additionally, Deputy McGuffie explained to the jury
that the solid white line found on West Esplanade immediately prior to its
20-CA-131 C/W 20-CA-132 5
intersection with the southbound lanes of Power Boulevard “normally dictated for
the stop lines as to where traffic should stop at if a crosswalk is located.” Deputy
McGuffie noted that while no stop line was located on West Esplanade in the
median area where it intersects with the northbound lanes of Power Boulevard,
“some people do and some people don’t” stop in the median between the two
traffic signals that control the intersection.
At trial, plaintiff denied that his taillights were malfunctioning on the day of
the accident. Plaintiff testified that as he approached the intersection, he moved
through the first traffic signal, which he claimed had already turned from green to
yellow prior to his entering the median area, and slowed to a stop because the
second traffic control signal had turned red. He stated that as soon as he brought
his vehicle to a stop, he immediately felt two impacts from defendant’s vehicle,
which he claimed “threw [his truck] almost three or four lanes of travel” into
Power Boulevard. Plaintiff testified that the force of the impact caused significant
frame damage underneath his truck, broke the seat brackets, and pushed the trailer
hitch downward. Additionally, in the bed of his truck was a tire and rim, which
propelled out of the truck and landed on the ground after impact. According to
plaintiff, State Farm paid $12,337.00 for the total loss of his truck.
The trial testimony of Jay Rohrbacker, plaintiff’s guest passenger,
corroborated plaintiff’s version of the accident. In particular, Rohrbacker testified
that when they approached Power Boulevard, the first light had already turned
yellow when they entered the intersection so they came to a “slow stop” in the
median area because the second light had turned red. Rohrbacker stated that he
had no knowledge as to whether or not the taillights on plaintiff’s vehicle were
functioning properly immediately prior to the accident. Rohrbacker claimed that
he suffered a concussion and back injuries from the impact of the collision and was
transported from the scene via ambulance.
20-CA-131 C/W 20-CA-132 6
Defendant, who claimed to have frequently traveled West Esplanade and
was familiar with the intersection, testified that the two traffic signals controlling
both intersections of West Esplanade with the north and southbound lanes of
Power Boulevard are “synced” and turn from green to yellow and yellow to red
simultaneously. Additionally, defendant stated that while he had previously
observed vehicles stop at the intersection in the median area between the two
traffic signals, he could not recall ever having seen more than one vehicle at a time
stopped there, nor had he ever personally stopped in the middle of that intersection
as the median area does not contain a stop line.
With respect to the subject accident, defendant testified that he had already
entered the median area between the north and southbound lanes of the familiar
intersection after the first traffic control signal had already changed from green to
yellow. He claimed that he never saw the second traffic light turn red prior to
plaintiff stopping or prior to the impact. According to defendant, plaintiff stopped
in the middle of an intersection during a yellow light that never turned red prior to
the collision.
Defendant testified that even though plaintiff’s vehicle was initially traveling
several car lengths in front him, because the brake lights on plaintiff’s truck were
malfunctioning and the traffic control signal had not yet turned red, he had no
indication that plaintiff was going to stop until it was too late to avoid a collision.
Defendant further testified that he told an officer on the scene about plaintiff’s
faulty taillights. Defendant also stated that while the force of the impact between
the vehicles caused his airbags to deploy, the impact caused plaintiff’s truck to
move forward only “a little bit” into Power Boulevard. According to defendant, an
unsecured tire that was sitting atop debris in the bed of plaintiff’s truck “flipped
out” and landed on his windshield smashing it. Defendant claimed that while he
was a little “foggy” immediately after the accident, he did not sustain any injuries
20-CA-131 C/W 20-CA-132 7
other than a brush burn to his face, which he thought came from the air bag that
deployed. He described the damage to plaintiff’s truck as “moderate,” and stated
that his own “brand new” truck sustained $16,000.00 in damages that took months
to repair.
Plaintiff testified at trial that immediately after the accident, although he
experienced a bit of confusion, apparently from hitting the left side of his head
against the window, he was full of adrenaline and not aware of any specific pain.
He denies, however, that he told the investigating officer that he was not injured.
Instead, plaintiff explained that he declined medical assistance at the scene because
he had no medical insurance and could not afford a medical bill, and that he did not
want to leave his truck stranded on the highway. Plaintiff claimed that he moved
his truck a couple of blocks ahead of the scene and parked it on the side of the
road. He called his uncle to come tow his vehicle, contacted his parents to come
get him, and then contacted his lawyer, who had previously assisted plaintiff in
obtaining medical help without incurring any out-of-pocket expenses following a
2011 automobile accident. Plaintiff explained to the jury that, in the hours
following the collision, he began to notice a headache, confusion, and pain in his
neck, shoulder and low back. With the assistance and recommendation of his
attorney, plaintiff was able to schedule a medical evaluation for that afternoon with
Louisiana Primary Care Consultants (“LPCC”).
At trial, plaintiff introduced the testimony of two of his medical doctors with
whom he sought treatment for his injuries following the accident, including Dr.
Fernando Martinez, a board-certified internal medicine physician at LPCC. Dr.
Martinez testified that when he first examined plaintiff on the afternoon of April
14, 2016, the date of the accident, plaintiff’s chief complaints were a headache on
the left side of his head, neck pain, pain in his shoulders, as well as pain in his
lower back. After obtaining a medical history, Dr. Martinez performed a physical
20-CA-131 C/W 20-CA-132 8
exam. While plaintiff reported tenderness, he had no cervical, thoracic or lumbar
spasms, no radiating symptoms in his extremities, and was neurologically intact.
X-rays obtained of plaintiff’s cervical and lumbar spine were negative for any
fractures or dislocations. Based on the medical history provided by plaintiff, his
physical exam, and after reviewing the x-rays, Dr. Martinez’s initial diagnosis was
that plaintiff had sustained a closed head injury with no loss of consciousness,
post-traumatic headache, cervical strain, and lumbar strain as a result of the subject
accident.3 Dr. Martinez recommended treatment in the form of medication and
“physical medical treatments in the office,” and restricted plaintiff from raising,
lifting, or moving anything weighing more than twenty pounds.
Approximately two weeks after the accident, plaintiff sought emergency
medical treatment at East Jefferson Hospital complaining of headaches, confusion,
back pain, neck pain, and rib pain. While there, he underwent a CT scan of his
brain, which was negative, an EKG of his heart, which was normal, and a chest x-
ray, which was also normal.
Dr. Martinez testified that his clinic continued to treat plaintiff for his
injuries for several months with various physical therapy modalities and
medication. In June 2016, due to persistent complaints of pain, Dr. Martinez’s
office ordered magnetic resonance imaging (MRI) scans for plaintiff’s cervical
spine, lumbar spine, and shoulders. The lumbar MRI revealed abnormal findings,
including a bulging disc at L4-5, a herniated disc at L5-S1, a ruptured annulus at
L5-S1, and thickening and roughening of many of the joints in plaintiff’s lower
back. The MRIs of plaintiff’s shoulders also revealed abnormal findings, including
tendinitis and nerve impingement in both shoulders. Based on these abnormal
3
According to Dr. Martinez, after the accident plaintiff reported trouble sleeping, concentrating,
and remembering immediate words and events, all of which Dr. Martinez related to the blunt head trauma
plaintiff received in the 2016 accident.
20-CA-131 C/W 20-CA-132 9
findings, Dr. Martinez testified that it was recommended that plaintiff consult with
a neurologist.
In August 2016, while still under the care of LPCC physicians, plaintiff
consulted with Dr. Morteza Shamsnia, a neurologist at Advance Neurodiagnostic
Center, who recommended EMG and nerve conduction studies of plaintiff’s lower
extremities.4 Dr. Shamsnia later performed these studies in October 2016, which
revealed left L5-S1 radiculopathy, or damage to the nerves, as well as bilateral
posterior tibial and left peroneal neuropathy. Dr. Shamsnia’s impression was that
plaintiff was suffering with post-traumatic headaches, concussion, memory loss,
headaches, anxiety, insomnia, and pain in his low back, shoulder and neck.
Dr. Martinez testified at trial that plaintiff remained under both his care, as
well as the care of others from LPCC, from April 14, 2016 through February 7,
2017,5 however, the prescribed medication and conservative treatment did not
obviate plaintiff’s low back and intermittent neck pain.6 LPCC discharged plaintiff
on February 7, 2017, with the recommendation that he follow up with
neurosurgery or orthopedics. Based on the information made available to him, and
given that plaintiff was purportedly free from pain prior to the subject 2016
accident, Dr. Martinez opined that it was more probable than not that plaintiff’s
head trauma, neck pain, back pain, and shoulder trauma were caused by the 2016
accident. Dr. Martinez further opined that the MRI and EMG findings support his
conclusion.
On cross-examination, Dr. Martinez testified that when he took plaintiff’s
medical history on the date of the accident, plaintiff denied any previous injuries or
that he was experiencing any pain prior to the 2016 accident. Dr. Martinez stated
4
Neither Dr. Shamsnia, nor any of the other physicians that treated plaintiff at LPCC other than
Dr. Martinez, testified at trial.
5
The last date Dr. Martinez personally examined plaintiff was on August 29, 2016, three years
prior to trial. Dr. Martinez was not aware that plaintiff was in a subsequent 2019 accident.
6
The medical records indicate that plaintiff’s shoulder and chest pain had apparently resolved by
December 2016.
20-CA-131 C/W 20-CA-132 10
that, while plaintiff did report a 2004 automobile accident wherein he suffered no
injuries, plaintiff did not reveal that he had previously undergone treatment for a
back injury that he sustained in a prior 2011 automobile accident. Plaintiff also did
not disclose to anyone at LPCC that he had undergone a 2008 work-related injury
to his back or a 2007 work-related injury to his shoulder. Nevertheless, because
plaintiff reported that he was not experiencing any pain immediately prior to the
subject 2016 accident, Dr. Martinez testified that information about these prior
accidents and injuries did not change his medical opinion that the head, neck, back,
and shoulder injuries for which he and others at LPCC treated plaintiff in 2016
were caused by the subject accident.
Medical records admitted into evidence at trial from Spectrum Neurology
show that Dr. Troy Beaucoudray, a neurology specialist who did not testify at trial,
treated plaintiff for pain management approximately every two months from
January 2017 until September 2017. According to his records, Dr. Beaucoudray’s
impression was that plaintiff was suffering with post-concussive syndrome, post-
traumatic headaches, “intravertebral disc displacement,” radiculopathy, cervicalgia,
shoulder pain, and myalgia. Because of plaintiff’s ongoing complaints that were
unresolved by one lumbar epidural steroid injection and prescription medication,
Dr. Beaucoudray recommended a neurosurgery consultation.
Dr. Donald Dietze, a board certified neurosurgeon, testified at trial on behalf
of plaintiff. He testified that he began treating plaintiff in July 2017 for neck pain,
back pain, and headaches attributable to the 2016 automobile accident made the
basis of this suit. During the course of treatment, plaintiff’s predominant
complaint was of pain in his lower back and lower extremities. Dr. Dietze stated
that he reviewed plaintiff’s previous medical records from LPCC (including the
findings of the MRI of his lumbar spine showing broad-based bulging of the L4-5
disc and herniation of the L5-S1 disc), the results of the EMG/nerve conduction
20-CA-131 C/W 20-CA-132 11
studies performed by Dr. Shamsnia (demonstrating bilateral L4 and right S1
radiculopathies), and from Dr. Beaucoudray. Based on his review of these records,
the medical history provided to him by plaintiff, and his physical examination of
plaintiff, Dr. Dietze recommended that plaintiff undergo a SPECT-CT7 scan,
discography, and discogram of his lumbar spine. These tests were performed on
plaintiff in the fall of 2017, and, according to Dr. Dietze, demonstrated
abnormalities at the L4-5 and L5-S1 levels consistent with discogenic or
neurological pain. Specifically, the discogram revealed a right full-thickness
annular tear at L4-5, which defect Dr. Dietze opined was most likely the generator
for plaintiff’s back and leg pain. In February 2018, Dr. Dietze ordered a left L5-S1
transforaminal epidural steroid injection for purposes of determining a surgical
plan for plaintiff, which was performed during the summer of 2018. Based upon
the positive findings from the various diagnostic testing, Dr. Dietze recommended
a two-level lumbar fusion surgery for plaintiff, which was originally scheduled for
September 2018. Due to plaintiff’s work schedule, the surgery was postponed
until 2019 after Mardi Gras. Unfortunately, when plaintiff again returned to see
Dr. Dietze in March 2019, he had been involved in a third automobile accident
nine days prior wherein he further injured his lumbar spine. Because of the 2019
accident, Dr. Dietze testified that surgery for plaintiff was put on hold indefinitely.
Dr. Dietze testified that he had also reviewed medical records pertaining to
plaintiff from Clearview Internal Medicine wherein he was treated by Dr. Ivo
Baronne, a family medicine specialist, from January 2011 to July 2011 for injuries
plaintiff suffered following a motor vehicle accident (the “2011 accident”).
According to Dr. Dietze, the 2011 records he reviewed showed that plaintiff’s
complaints consisted of headaches, neck pain, back pain, and shoulder pain, which
7
A SPECT-CT scan, or a single-photon emission computerized tomography (”SPECT”), is a
nuclear imaging test that uses a radioactive substance and a specialized camera to create 3-D photographs.
20-CA-131 C/W 20-CA-132 12
Dr. Dietze admitted at trial were “[h]onestly very similar” to plaintiff’s complaints
following the 2016 accident. Dr. Dietze compared the lumbar MRI imaging
obtained in 2011 to the imaging obtained in 2016, and while he conceded that
findings on the two MRIs were essentially the same, the difference was in the
measurements. He opined that following the 2011 accident, the annular tear was
only noted to be a “partial tear,” whereas a “full thickness tear” was seen on
discography after the 2016 accident. In Dr. Dietze’s opinion, the “full thickness
tear” of the annulus was a “new finding” resulting in a significant change in
plaintiff’s lumbar spine and was most likely caused by the acute trauma plaintiff
experienced in the subject 2016 accident.
On cross-examination, when confronted with the results of the 2016 MRI of
plaintiff’s lumbar spine that did not note the full thickness annular tear at L4-5,
which Dr. Dietze claimed was a “new” injury caused by the 2016 accident, Dr.
Dietze admitted that annular tears are not always seen on MRI. Dr. Dietze also
conceded that because plaintiff did not undergo a discogram after the 2011
accident, he had nothing with which to compare the discogram performed
following the 2016 accident that revealed the full thickness tear of the annulus.
Defendants presented testimony of Dr. Everett Robert, a board-certified
neurosurgeon, who performed an independent medical examination of plaintiff in
September 2017 at defendants’ request. Dr. Robert testified that he was
specifically asked to evaluate plaintiff in light of Dr. Dietze’s recommendation for
lumbar fusion surgery. Dr. Robert stated that when he obtained plaintiff’s medical
history, plaintiff denied ever having any type of neck, back, arm, or leg issue. On
examination, all objective tests (i.e., testing for weakness, reflexes, etc.) were
normal. Plaintiff’s strengths were normal and he had no deficits in sensation.
However, when Dr. Robert elicited some of the reflexes, he testified that plaintiff’s
complaints of pain in response did not make neurological sense. Further, when Dr.
20-CA-131 C/W 20-CA-132 13
Robert pressed on plaintiff’s lower back and neck, plaintiff complained of pain in
his leg, which Dr. Robert explained to the jury was medically nonsensical.
Dr. Robert testified that when he reviewed the 2016 MRI reports, his
impression was that plaintiff suffered from degenerative disc disease, a wear and
tear, overgrowth of the joint, and not from a “singular traumatic event.”
Specifically, Dr. Robert could see “[n]o evidence of any trauma per se” on the
2016 MRI. There was no mention of hemorrhage or edema on the MRI that was
performed only ten weeks after the accident. Dr. Robert also reviewed a CT scan
of plaintiff’s head taken two weeks after the accident, which he testified was
“normal” and did not show any type of intracranial injury. According to the
medical records he reviewed, plaintiff had no loss of consciousness, no loss of
speech, no obvious hesitation in cognition, and followed commands well on the
day of the accident. In Dr. Robert’s opinion, despite the impressions of the LPCC
physicians, Dr. Shamsnia and Dr. Beaucoudray that plaintiff suffered with post-
concussive syndrome for eight to ten months, he saw no evidence from a
neurological vantage of post-concussive syndrome or any neurocognitive
abnormalities.
In Dr. Robert’s opinion, after reviewing the medical records made available
to him from LPCC, Dr. Shamsnia, Dr. Beaucoudray and Dr. Dietze, the 2016 MRI
report showing mild degenerative changes, and based on the findings from his
physical examination of plaintiff wherein he was neurologically intact and
exhibited no objective abnormalities, plaintiff was not a surgical candidate for a
two-level lumbar fusion. Moreover, Dr. Robert opined that plaintiff’s low back
pain, more probably than not, was not associated or caused by the 2016 accident.
Following his independent medical examination of plaintiff, Dr. Robert was
advised of plaintiff’s prior 2011 back injury and an MRI of his lumbar spine that
was taken at that time. Dr. Robert was able to obtain, review, and compare the
20-CA-131 C/W 20-CA-132 14
actual films of the 2011 and 2016 MRIs. When asked about the measurement
differences between the MRI imaging in 2011 and 2016, Dr. Robert’s opinion
conflicted with that of Dr. Dietze’s in that he found these slight differences were
not clinically significant. Dr. Robert explained to the jury that the 2011 and 2016
studies were likely done “on two different machines” where “the magnet is better
on one MRI than the other.” Consequently, it is typical to “see some mild
variations when we look at an MRI separate in time and two different machines.”
Dr. Robert observed no difference in the 2011 and 2016 imaging from a “clinical
or a practical perspective,” which indicated to him that plaintiff’s “anatomy hadn’t
changed from the pre-accident MRI.”
Moreover, Dr. Robert stated that he observed no evidence of trauma on the
2016 MRI, whereas the 2011 MRI showed hemorrhage and edema, which is
evidence of trauma. Dr. Robert testified that in his opinion, plaintiff had suffered
“[n]o anatomical injury as a result of the [2016] accident.” Further, Dr. Robert
testified that he agreed with the radiologist’s findings on the 2011 MRI showing
that plaintiff had a L5-S1 disc herniation, which was the same as that seen on the
2016 MRI. To correlate with the observed herniation, plaintiff reported left-leg
pain and lower back pain at the time the 2011 MRI was performed, as well as
continued low back pain and leg pain at the time the second MRI in 2016 was
performed.
On cross-examination, Dr. Robert conceded that plaintiff had an annular tear
at his L4-5 disc and an L5-S1 disc herniation, which are objective signs of injury,
however, he testified that these injuries pre-dated the 2016 accident. Dr. Robert
disagreed with Dr. Dietze’s impression that the annular tear at L4-5 was worsened
by the 2016 accident because there was “[n]o clinically significant change between
the [2011] and [2016] MRIs.” Additionally, Dr. Robert admitted that in his report
he recommended that plaintiff undergo a discogram and that if the results
20-CA-131 C/W 20-CA-132 15
therefrom demonstrated a pain generator, he would join in Dr. Dietze’s
recommendation of lumbar fusion surgery. Dr. Robert also conceded that Dr.
Dietze reported that the discogram revealed a full annular tear at L4-5 that was
likely a pain generator. However, after reviewing the actual report, “which
show[ed] a grade 4 annular tear …,” the same grade 4 annular tear as seen on the
MRI, Dr. Robert discounted the findings on the basis that the discogram was
improperly administered. Dr. Robert explained to the jury that it is generally
accepted that in order for the discogram to be a valid test, a negative control (i.e., a
needle placed in the spine at a different level other than the level documented as
positive for generating pain) has to be established in order to validate the positive
portion of the exam. Because the physician that performed the discogram, Dr.
John Logan, did not document any control in his report, Dr. Robert presumed that a
control was not done. Dr. Robert concluded that plaintiff’s annular tear and disc
bulge at L4-5 preceded the 2016 accident and was most likely the pain generator
for the lower back pain plaintiff experienced in 2011 and in 2016. In his medical
opinion, it was more probable than not that plaintiff sustained no new anatomical
injuries in the 2016 accident, and to the extent he sustained any injuries at all, they
were soft tissue injuries, and plaintiff should have returned to baseline (i.e., a
herniation at L5-S1 and a bulge and annular tear at L4-5) within eight to ten weeks
following the accident.
STANDARD OF REVIEW
In reviewing a trial court’s findings of fact, appellate courts employ a
“manifest error” or “clearly wrong” standard of review. Rosell v. ESCO, 549
So.2d 840, 844 (La. 1989). Where there is a conflict in the testimony, reasonable
evaluations of credibility and reasonable inferences of fact should not be disturbed
upon review, even though the appellate court may feel its own evaluations and
inferences are more reasonable. Id. Where there are two permissible views of the
20-CA-131 C/W 20-CA-132 16
evidence, the fact finder’s choice between them cannot be manifestly erroneous or
clearly wrong. Id. While an appellate court must review the trial court’s
conclusions in light of the entire record, it “must be cautious not to re-weigh the
evidence or to substitute its own factual findings just because it would have
decided the case differently.” Menard v. Lafayette Ins. Co., 09-1869 (La. 3/16/10),
31 So.3d 996, 1007 (citing Rosell, 549 So.2d at 844).
DISCUSSION
Allocation of Fault
In plaintiff’s first, second, and third assignments of error, taken together, he
contends the jury manifestly erred in its allocation of fault. Specifically, plaintiff
alleges the jury erred in assigning fifteen percent of the fault for causing the
accident to him, that defendants failed to overcome the legal presumption that
defendant was one hundred percent at fault for rear-ending plaintiff’s vehicle, and
that defendants failed to establish that plaintiff’s actions created a sudden
emergency.
Causation is a fact-specific inquiry. Ruttley v. Lee, 99-1130 (La. App. 5 Cir.
5/17/00), 761 So.2d 777, 785, writ denied, 00-1781 (La. 9/22/00), 768 So.2d 1287.
Like all factual findings, the trier of fact is owed great deference in its allocation of
fault and its findings may not be reversed unless clearly wrong or manifestly
erroneous. Clement v. Frey, 95-1119, 95-1163 (La. 1/16/96), 666 So.2d 607, 609-
610; Tamayo v. American Nat. General Ins. Co., 14-130 (La. App. 5 Cir. 9/24/14),
150 So.3d 459, 465. Under this standard, the inquiry is not whether this court, had
it been sitting as the trier of fact, would have made a different finding, but instead,
whether the jury’s finding was reasonably supported by the evidence. Raspanti v.
Liberty Mut. Ins. Co., 05-623 (La. App. 5 Cir. 1/31/06), 922 So.2d 631, 634, writ
denied, 06-476 (La. 5/5/06), 927 So.2d 314. Allocation of fault is a factual
determination and the trier of fact, unlike the appellate court, has the benefit of
20-CA-131 C/W 20-CA-132 17
viewing firsthand the witnesses and evidence. Tamayo, 150 So.3d at 465. It is the
appellate court’s duty to give deference to the trier of fact. Id. An appellate court
may reallocate fault only after it has found an abuse of discretion and then only to
the extent of lowering or raising the percentage of fault to the highest or lowest
point reasonably with the trial court’s discretion. Hill v. Morehouse Parish Police
Jury, 95-1100 (La. 1/16/96), 666 So.2d 612, 614.
The proper allocation of fault requires an analysis of both parties’ conduct.
Watson v. State Farm, 469 So.2d 967, 974 (La. 1985). An appellate court’s
determination of whether the trier of fact was clearly wrong in its allocation of
fault is guided by the factors set forth in Watson, such as the awareness or
inadvertence of the acts, the severity of the risks, the significance of what was
sought by the conduct, the capacity of the actors, whether superior or inferior, and
any other factors which might cause a person to act in haste. Id. at 974; Davis v.
Vosbein¸12-626 (La. App. 5 Cir. 5/16/13), 119 So.3d 100, 102.
All motorists owe a general duty to observe what should be observed. Mart
v. Hill, 505 So.2d 1120, 1123 (La. 1987). Additional duties arise depending upon
the motorist’s movements on the roadway in relation to other vehicles. Relevant to
the instant case are the duties and presumptions associated with a motorist entering
an intersection, and with a following motorist.
First, La. R.S. 32:1(33)(a)8 defines “intersection” as “[t]he area embraced
within the prolongation or connection of the lateral curb lines, or, if none, then the
lateral boundary lines of the roadways of two highways which join one another at,
or approximately at, right angles, or the area within which vehicles traveling upon
different highways joining at any other angle may come in conflict.” Additionally,
8
La. R.S.32:1(33)(a), formerly 32:1(26)(a), was re-designated by Acts 2020, No. 152, § 1,
effective August 1, 2020.
20-CA-131 C/W 20-CA-132 18
La. R.S. 32:1(33)(d)(i)9 provides that “[w]here a highway includes a stop line,
yield line, or crosswalk that has not been designated on the roadway within the
median between the separate intersections, the two intersections and the roadway
median between them shall be considered as one intersection.” If, however, the
highway contains a “stop line, yield line, or crosswalk [that] is designated on the
roadway on the intersection approach, the area within the crosswalk or beyond the
designated stop line or yield line shall be a part of the intersection.” La. R.S.
32:1(33)(d)(ii).10
Second, with regard to the following motorist, the law has established a
rebuttable presumption that a following motorist who strikes a preceding motorist
from the rear has breached the standard of conduct prescribed by La. R.S. 32:81(A)
and is therefore liable for the accident. Harbin v. Ward, 13-1620 (La. App. 1 Cir.
5/19/14), 147 So.3d 213, 218. The rule is based on the premise that a following
motorist either has failed in his responsibility to maintain a sharp lookout or has
followed at a distance from the preceding vehicle which is insufficient to allow
him to stop safely under normal circumstances. Id. While a following motorist
may assume that the vehicle in front is being driven with care and caution, he must
drive at an appropriate speed and must maintain an interval between the two
vehicles under circumstances which should be reasonably anticipated. Leonard v.
Favaloro, 05-206 (La. App. 5 Cir. 10/6/05), 916 So.2d 1191, 1192 and Harbin,
147 So.3d at 218.
A following motorist, however, may rebut the presumption of negligence by
proving that he had his vehicle under control, closely observed the preceding
vehicle, and followed at a safe distance under the circumstances. Phipps v. Allstate
9
La. R.S.32:1(33)(d)(i), formerly 32:1(26)(d)(i), was re-designated by Acts 2020, No. 152, § 1,
effective August 1, 2020.
10
La. R.S.32:1(33)(d)(ii), formerly 32:1(26)(d)(ii), was re-designated by Acts 2020, No. 152, § 1,
effective August 1, 2020.
20-CA-131 C/W 20-CA-132 19
Ins. Co., 05-651 (La. App. 5 Cir. 2/27/06), 924 So.2d 1081, 1084. The following
motorist may also avoid liability by proving that the driver of the lead vehicle
negligently created a hazard that he could not reasonably avoid (a sudden
emergency). Tamayo, 150 So.3d at 466. However, the rule of sudden emergency
cannot be invoked by one who has not used due care to avoid the emergency.
Anderson v. May, 01-1031 (La. App. 5 Cir. 2/13/02), 812 So.2d 81, 86. The
following motorist must exonerate himself from fault before he can completely
avoid liability. Id. at 85. Although the sudden emergency doctrine was developed
when contributory negligence was a complete bar to recovery, our courts continue
to apply the doctrine. Duzon v. Stallworth, 01-1187 (La. App. 1 Cir. 12/11/02),
866 So.2d 837, 858, writs denied, 03-589, 03-605 (La. 5/2/03), 842 So.2d 1101,
1110. While the sudden emergency doctrine has not been subsumed by
comparative fault, some courts have treated the defense of sudden emergency as
one of the factual considerations used in assessing the degree of fault to be
attributed to a party. Harbin, 147 So.3d at 218. See also, Manuel v. St. John the
Baptist Parish Sch. Bd., 98-1265 (La. App. 5 Cir. 3/30/99), 734 So.2d 766, 769,
writ denied, 99-1193 (La. 6/4/99), 744 So.2d 632.
In the instant case, plaintiff contends the jury erred in failing to apply the
appropriate standard and burden of proof in evaluating defendant’s fault in causing
the accident. Plaintiff argues that in assessing him with fifteen percent of the fault,
the jury failed to properly consider the presumption that a following motorist is
liable when he strikes the vehicle in front of him. In particular, plaintiff avers
defendants did not establish that defendant had control over his vehicle, that he
closely observed plaintiff’s vehicle, or that he was following plaintiff’s vehicle
from a safe distance and at a safe speed. Plaintiff further argues that defendants
failed to establish that plaintiff’s actions created a hazard which could not be
avoided. Plaintiff concludes that if defendant was traveling attentively at a safe
20-CA-131 C/W 20-CA-132 20
distance behind his vehicle and at a safe speed, he could have stopped in time to
avoid the accident.
At trial, plaintiff testified that as he approached the intersection, he was
driving the posted speed limit and, despite the damp roadways from an earlier rain,
he was able to slow down and come to a complete stop within the median area at
the traffic signal for the northbound traffic on Power Boulevard, which he claims
had turned red. Plaintiff’s testimony was corroborated by his guest passenger, Jay
Rohrbacker.
Defendant testified that he was driving at, or slightly above, the speed limit
at the time of the accident. He contended that while he could not state the exact
distance at which he was traveling behind plaintiff, he recalls being several car
lengths behind him when he applied the brakes. He claimed that when he
approached the intersection, the traffic signal controlling West Esplanade and the
northbound lanes of Power Boulevard was still green and did not turn yellow until
he actually entered the intersection and the median area. Defendant testified that
when he looked down from the traffic signal, he realized that the distance between
his truck and plaintiff’s truck was “closing in quickly.” Defendant claimed that
because he did not see operational brake lights on plaintiff’s truck, in addition to
the fact that the traffic signal controlling the southbound lanes of Power Boulevard
was still yellow and had not yet turned red, he had no indication that plaintiff was
going to stop before it was too late to avoid a collision. Defendant testified that
when he braked, his tires screeched, and his truck skidded on the wet pavement
and slid into the rear of plaintiff’s truck.
Deputy McGuffie testified that, according to his report, plaintiff, Rohrbacker
and defendant all agreed that the traffic signal was yellow at the time the collision
occurred. He further testified that no stop line, which normally dictates where a
vehicle is to stop as one approaches an intersection, was located on the roadway
20-CA-131 C/W 20-CA-132 21
within the median area before the traffic signal controlling West Esplanade and the
northbound traffic on Power Boulevard.
Ultimately, the jury apportioned eighty-five percent of the fault to
defendants and fifteen percent to plaintiff. The record supports the jury’s
conclusion. The jury’s allocation of comparative fault is reasonably premised
upon its factual findings concerning the nature of each party’s wrongful conduct
and the extent of the causal relationship between the conduct and the accident. In
light of the conflicting trial testimony regarding whether plaintiff’s brake lights
were properly functioning, whether the traffic signal was yellow or red when the
impact occurred, and, in the absence of a stop line on the roadway in the median
area at the subject intersection, whether or not plaintiff fell below the standard of
care of a motorist by stopping in the middle of an intersection, we find that it was
not unreasonable for the jury to determine that plaintiff was partially, albeit
minimally, at fault for this accident. Mindful that the trial court is entitled to great
deference in its allocation of fault, and that we may not substitute our own
judgment for that of the trial court when the trial court’s ruling is based on a
reasonable interpretation of the evidence, in light of the totality of the evidence, we
cannot say the jury’s allocation of fault is manifestly erroneous. Thus, we will not
reassess fault. Plaintiff’s first, second, and third assignments of error do not merit
relief.
Quantum
In plaintiff’s fourth and fifth assignments of error, he contends that the jury
abused its discretion in granting an inadequate award for general damages, and for
failing to award any amount for future medical expenses. Conversely, in answer to
plaintiff’s appeal, defendants argue the jury’s award for past medical expenses
should be reduced to reflect its award for general damages. We find the jury did
not abuse its vast discretion in awarding general or special damages to plaintiff
20-CA-131 C/W 20-CA-132 22
General Damages
Our jurisprudence has consistently held that in the calculation of general
damages, considerable discretion is left to the jury. Coco v. Winston Indus. Inc.,
341 So.2d 332, 335 (La. 1976). The discretion vested in the jury is great, even
“vast,” so that an appellate court should rarely disturb an award of general
damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La. 1993),
cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Upon
appellate review, general damage awards will be disturbed only where there has
been a clear abuse of that discretion. Coco, 341 So.2d 332.
The role of an appellate court in reviewing general
damages is not to decide what it considers to be an
appropriate award, but rather to review the exercise of
discretion by the trier of fact. Wainwright v. Fontenot,
00-492 (La. 10/17/00), 774 So.2d 70, 74; Youn, 623
So.2d at 1261. The initial inquiry is whether the award
for the particular injuries and their effects under the
particular circumstances on the particular injured person
is a clear abuse of the “much discretion” of the trier of
fact. Youn, 623 So.2d at 1260. Reasonable persons
frequently disagree about the measure of damages in a
particular case. Id. at 1261. It is 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 that the appellate court should increase or
decrease the award. Id. If the appellate court determines
that an abuse of discretion has been committed, it is then
appropriate to resort to a review of prior awards, to
determine the appropriate modification of the award.
Prior awards under similar circumstances serve only as a
general guide. In such review, the test is whether the
present award is greatly disproportionate to the mass of
past awards for truly similar injuries. Id.; Theriot v.
Allstate Ins. Co., 625 So.2d 1337, 1340 (La. 1993).
Thibodeaux v. Gulfgate Construction, LLC, 18-676 (La. App. 3 Cir. 3/7/19), 270
So.3d 721, 729. Damages awarded by a jury are to be reviewed in the light most
favorable to the prevailing party. Harrington v. Wilson, 08-544 (La. App. 5 Cir.
20-CA-131 C/W 20-CA-132 23
1/13/09), 8 So.3d 30, 40. It is only if the award is so disproportionate to the injury
that it “shocks the conscience,” that a trial court is deemed to have abused its
discretion. Id.In addition, the defendant must compensate a plaintiff for the full extent of
the injuries plaintiff sustained, even if defendants simply aggravated a pre-existing
condition. Lasha v. Olin Corp., 625 So.2d 1002, 1006 (La. 1993). However,
before recovery can be granted for aggravation of a pre-existing condition, a
causative link between the accident and the victim’s current condition must be
established. Purvis v. Jefferson Parish Hospital Service, 16-434 (La. App. 5 Cir.
12/21/16), 209 So.3d 363, 373.
In the instant case, the jury awarded plaintiff 12,000 in general damages:
$5,000 for past, present, and future pain and suffering; and $7,000 for the loss of
enjoyment of life. Plaintiff contends that having found that he suffered injuries in
the 2016 automobile accident, and in light of the jury’s having awarded him
$46,842.58—which happens to total the exact amount of the medical expenses
plaintiff incurred from the date of the accident through March 20, 2019, the date of
his third accident—the jury’s award of $12,000 in general damages is inadequate.
We do not find that the trial court abused its vast discretion with respect to the
general damage award, nor do we find that the award shocks the conscience.
It is evident from the evidence and trial testimony in the record that the jury
simply did not believe plaintiff’s claim that he suffered significant injuries in the
2016 accident. Based on our review, we are unable to find the jury was clearly
wrong in their obvious conclusions that plaintiff’s annular tear, L4-L5 bulging
disc, and L5-S1 herniated disc pre-dated the subject accident, and that the
recommendation for future lumbar surgery was not attributable to the 2016
accident. The testimony reveals that plaintiff was not forthcoming in providing a
complete medical history on his initial visit to any of the physicians who treated
20-CA-131 C/W 20-CA-132 24
him following the subject accident, including the IME doctor. Specifically, he
failed to mention the back injuries he sustained in a 2011 automobile accident and
a prior work-related accident, and failed to advise that he had previously injured
his shoulder in a separate work-related accident. Moreover, the jury apparently
chose to believe Dr. Robert’s testimony over that of Dr. Dietze that plaintiff had
not suffered any “new” injury after the 2016 accident and, to the extent that
plaintiff did sustain injury, those injuries were soft-tissue in nature and should have
resolved within eight to ten weeks. Further, on cross-examination, Dr. Dietze
conceded that plaintiff’s reported symptoms following both the 2011 and 2016
accidents were “honestly very similar” and that the findings on 2011 and 2016
MRIs were “essentially the same.”
Moreover, plaintiff was the only witness to testify at trial regarding his
personal activities since the 2016 accident. He testified that while he did not stop
working following the accident, he had a hard time maintaining full-time
employment in the restaurant industry due to his lower back pain. Plaintiff did not
make a lost wage claim. Plaintiff also testified that since the 2016 accident, he was
no longer able to play basketball, work out, or play with his young daughter like he
previously was able to. The jury’s findings as to the extent and duration of
plaintiff’s injuries were factual determinations, relying largely on the credibility of
the witnesses. It is axiomatic that an appellate court may not disturb a jury’s
findings unless they are clearly wrong or manifestly erroneous. Ferrell v.
Fireman’s Fund Insurance Co., 94-1252 (La. 2/20/95), 650 So.2d 742, 745.
We also find no merit to plaintiff’s argument that the general damages award
is inadequate in light of the jury’s award for the full amount of his past medical
expenses. To the contrary, by awarding plaintiff any amount in general damages,
the jury apparently concluded that he had suffered an aggravation of his pre-
existing lumbar condition as well as other injuries as a result of the 2016 accident.
20-CA-131 C/W 20-CA-132 25
Thus, it is not unreasonable to also conclude that the jury found that the various
medical tests and treatment that plaintiff underwent at the recommendation of his
treating physicians to treat the aggravation of his pre-existing lumbar condition and
other ailments were necessitated by the subject accident. In our view, the jury did
not abuse its vast discretion by awarding plaintiff $12,000.00 in general damages.
We will not disturb the jury’s award.
Special Damages
Special damages, such as past and future medical expenses, are those which
have a “ready market value,” such that the amount of damages can be calculated
with relative certainty. Kaiser v. Hardin, 06-2092 (La. 4/11/07), 953 So.2d 802,
810. In reviewing a jury’s factual conclusions with regard to special damages, an
appellate court must satisfy a two-step process based on the record as a whole:
There must be no reasonable factual basis for the trial court’s conclusions, and the
finding must be clearly wrong. Id. (citing Guillory v. Ins. Co. of North America,
96-1084 (La. 4/8/97), 692 So.2d 1029); Guillory v. Lee, 09-75 (La. 6/26/09), 16
So.3d 1104, 1118. An appellate court may not set aside this finding unless, in view
of the entire record, it is manifestly erroneous or clearly wrong. Rosell, 549 So.2d
at 844. Moreover, when a trier of fact assesses special damages, the discretion is
more limited or narrower than the discretion to assess general damages. Dufrene v.
Gautreau Family, LLC, 07-467, 07-547 (La. App. 5 Cir. 2/22/08), 980 So.2d 68,
83, writs denied, 08-629 (La. 5/9/08), 980 So.2d 694 and 08-628 (La. 5/9/08), 980
So.2d 698. The standard of review, however, is still that of abuse of discretion. Id.
at 83.
Future medical expenses, as special damages, must be established with some
degree of certainty, and a plaintiff must demonstrate that such expenditures will,
more probably than not, be incurred as a result of the injury. Mendoza v.
Mashburn, 99-499, 99-500 (La. App. 5 Cir. 11/10/99), 747 So.2d 1159, 1170, writ
20-CA-131 C/W 20-CA-132 26
not considered, 00-40, 00-43 (La. 2/18/00), 754 So.2d 957, writ denied, 00-37 (La.
2/18/00), 754 So.2d 976 (citing Mayeaux v. Denny’s Inc., 95-453 (La. App. 5 Cir.
10/18/95), 633 So.2d 822, 826). The plaintiff bears the burden of proving
entitlement to future medical expenses by a preponderance of the evidence. Id.Awards will not be made in the absence of medical testimony that they are
indicated and setting out their probable costs. Duncan v. Kansas City Southern
Railway Co., 00-66 (La. 10/30/00), 773 So.2d 670, 685; LeMasters v. Boyd
Gaming Corp., 04-1054 (La. App. 5 Cir. 2/15/05), 898 So.2d 497, 503, writ
denied, 05-751 (La. 5/6/05), 901 So.2d 1103. Credibility determinations are for
the trier of fact, even as to the evaluation of expert witness testimony. Green v. K-
Mart Corp., 03-2495 (La. 5/25/04), 874 So.2d 838, 843. A fact finder may accept
or reject the opinion expressed by the expert, in whole or in part. Id.Plaintiff claims that, in light of his treating physician’s testimony that he
needs future back surgery as a result of the 2016 accident, the jury abused its
discretion in failing to award any amount for future medical expenses. Conversely,
defendants contend the jury properly determined that plaintiff was not entitled to
future medical expenses based on its “obvious” finding—as evidenced by its
general damages award—that plaintiff did not sustain significant injuries as a result
of the 2016 accident. Defendants argue that a review of plaintiff’s medical history
and the medical testimony offered at trial prove that his injuries pre-existed the
2016 accident and, further, that any need for future back surgery was not caused by
the subject accident.
We are unable to find that the jury was clearly wrong in its obvious
conclusion that any future medical expenses plaintiff may incur are not attributable
to the 2016 accident. In this regard, the record contains two competing experts
regarding plaintiff’s need to undergo surgery, and if warranted, whether the need
for surgery resulted from the subject 2016 accident. Plaintiff’s treating
20-CA-131 C/W 20-CA-132 27
neurosurgeon, Dr. Dietze, testified that in his opinion, more probably than not, the
2016 accident worsened plaintiff’s lumbar condition such that he now requires
surgery. On cross-examination, however, Dr. Dietze admitted that, after reviewing
the MRI conducted on plaintiff’s lumbar spine following his 2011 accident, the
bulging L4-5 disc and herniated L5-S1 disc more likely than not existed before the
2016 accident and that those findings in 2011 would have warranted surgery. Dr.
Dietze’s testimony was discounted by defense’s expert neurosurgeon, Dr. Robert,
who testified that in his medical opinion, based on his finding that plaintiff had not
suffered any new anatomical injuries in the 2016 accident, any future medical
treatment was unrelated to the 2016 accident.
Additionally, subsequent to Dr. Dietze’s recommendation for surgery, which
plaintiff decided to postpone, plaintiff was involved in a third automobile accident
in 2019. Interestingly, the jury heard testimony that following the 2019 accident,
instead of returning to LPCC for treatment, plaintiff sought treatment from yet
another facility, Health Care Center, and continued treatment there at least up to
one month prior to the August 2019 trial. Also, Dr. Dietze, who did examine
plaintiff following the 2019 accident and opined that plaintiff sustained further
injury to his lumbar spine, testified that he would not perform any surgery on
plaintiff until after the extent of his injuries from the subsequent 2019 accident can
be determined, which might require a different, or more extensive, surgery than the
one he was recommending for plaintiff prior to the 2019 accident.
We find that the jury simply found Dr. Robert’s testimony was more
compelling, and that his medical findings were amply supported by the record and
plaintiff’s testimony. It was reasonable for the jury to conclude that the evidence
tended to disprove that plaintiff suffered the lumbar disc injuries in the 2016
accident. Likewise, there exists in the record a reasonable factual basis for the
jury’s finding that the future surgery Dr. Dietze recommends, which plaintiff may
20-CA-131 C/W 20-CA-132 28
or may not undergo, was not as a result of the instant accident, but rather, was
necessitated by the prior 2011 accident. We find the jury’s findings are based on
reasonable credibility determinations and factual evaluations which will not be
disturbed unless manifestly erroneous. We do not find the jury abused its vast
discretion in concluding that an award for future medical expenses is not
warranted.
Likewise, we find no reason to upset the jury’s award for past medical
expenses, which in its answer to appeal, defendants seek a reduction. According to
defendants, given the minimal amount awarded to plaintiff in general damages, it
is clear the jury did not believe that plaintiff sustained significant injuries as a
result of the 2016 accident. Thus, by awarding plaintiff $46,842.58—the exact
amount he was claiming in past medical expenses—defendants contend the jury’s
sympathies obviously came into play in making that award, which constituted an
abuse of its vast discretion. For all of the reasons heretofore stated, we find no
abuse of the trial court’s vast discretion in awarding plaintiff the full amount of the
past medical expenses he incurred.
Litigation and Expense Costs
In their answer to plaintiff’s appeal, defendants seek reversal of the trial
court’s ruling, which denied their motion for judgment on offer of judgment and
granted plaintiff’s motion to tax costs and ordering defendants to pay plaintiff
$12,404.16 in costs and $5,982.07 in judicial interest.
Under the particular facts and circumstances of this case, defendants argue
that the general procedure for taxing costs found in La. C.C.P. art. 1920—that
costs shall be paid by the party cast (in this case, defendants)—does not apply
because on July 1, 2019, in accordance with La. C.C.P. art. 970, defendants timely
made a written offer of judgment to plaintiff in the amount of $80,000.00, inclusive
of attorney fees and costs, which plaintiff rejected. Specifically, according to
20-CA-131 C/W 20-CA-132 29
defendants, the total amount of damages the jury awarded to plaintiff ($58,842.58),
coupled with the costs plaintiff incurred after the offer of judgment was made and
interest accrued from the date of judicial demand through the offer of judgment
($9,408.56), equals $68,251.14. When this amount is reduced by plaintiff’s fifteen
percent assessment of fault, the total amounts to $58,013.47. Because this amount
is less than $60,000.00, or less than twenty-five percent of the amount of the offer
of judgment, defendants argue the trial court erred under La. C.C.P. art. 970(C), in
failing to rule that plaintiff is obligated to pay the costs defendants incurred after
the offer of judgment was made, which defendants contend totals $13,561.00. We
disagree.
Louisiana Code of Civil Procedure Article 970 provides for the payment of
costs when an offer of judgment has been made and rejected. The purpose of
Article 970 is to compensate the rejected offeror who was forced to incur greater
trial litigation costs than he would have if the offeree had accepted his settlement
offer. Carcamo v. Raw Bar, Inc., 12-294 (La. App. 5 Cir. 11/27/12), 105 So.3d
936, 938. Article 970 is punitive in nature and, therefore, must be strictly
construed. Id. Article 970 provides, in pertinent part:
A. At any time more than twenty days before the time
specified for the trial of the matter, without any
admission of liability, any party may serve upon an
adverse party an offer of judgment for the purpose of
settling all of the claims between them. The offer of
judgment shall be in writing and state that it is made
under this Article; specify the total amount of money of
the settlement offer; and specify whether that amount is
inclusive or exclusive of costs, interest, attorney fees, and
any other amount which may be awarded pursuant to
statute or rule. …
***
C. If the final judgment obtained by the plaintiff-offeree is
at least twenty-five percent less than the amount of the
judgment by the defendant-offeror … the offeree must
pay the offeror’s costs, exclusive of attorney fees,
incurred after the offer was made, as fixed by the court.
20-CA-131 C/W 20-CA-132 30
***
E. For purposes of comparing the amount of money offered
in the offer of judgment to the final judgment obtained
which judgment shall take into account any additur or
remittitur, the final judgment obtained shall not include
any amounts attributable to costs, interest, or attorney
fees, or to any other amount which may be awarded
pursuant to a statute or rule, unless such amount was
expressly included in the offer. [Emphasis supplied.]
It is undisputed by defendants that the written offer of judgment it issued to
plaintiff was for the total amount of $80,000.00, “inclusive of interests,
attorney’s fees, and costs.” Defendants seek to have this Court interpret La.
C.C.P. art. 970 to mean that plaintiff, the offeree, is entitled to include in his
calculation of costs and interest, only those costs that he incurred after the offer of
judgment was made, and judicial interest from the date of judicial demand only up
to the date of the offer of judgment, or through July 1, 2019. We find, however,
that defendants’ interpretation conflicts with the express language of the codal
article.
Specifically, when calculating the total amount of the judgment awarded to
the offeree for purposes of determining whether the total award exceeds twenty-
five percent of the amount contained in the offeror’s offer of judgment, La. C.C.P.
art. 970(E) allows the offeree (i.e., plaintiff) to take into account “any amounts
attributable to costs, interest, or attorney fees” when the offer of judgment is
inclusive of these amounts, such as defendants’ offer of judgment made in the
instant case. In other words, the Article does not limit the plaintiff to including in
his calculation only those litigation costs that he incurred after the offer of
judgment was made, nor does it limit his calculation of interest from the date of
judicial demand only up to the date of the offer of judgment as proposed by
defendants. Rather, when the offer of judgment is inclusive of costs, interest, or
attorney fees, as in the instant case, the plaintiff is allowed to include any and all
20-CA-131 C/W 20-CA-132 31
litigation costs he incurred, as well as the total amount of judicial interest
calculated from the date of judicial demand until paid. Under the express language
of La. C.C.P. art. 970(C), it is only when the plaintiff becomes obliged to pay the
defendant’s costs that the calculation of costs is limited solely to those costs
incurred by the defendant after the offer of judgment was made.11 La. C.C.P. art.
970(C).
In the instant case, defendant does not dispute that plaintiff incurred a total
of $12,404.16 in litigation costs, or that judicial interest accrued from the date of
judicial demand until paid was $5,982.07, for a total of $18,386.23 in interest and
costs. Even if this amount were discounted by plaintiff’s fifteen percent fault, the
total amount of interest and costs discounted equals $15,628.30. When this
amount is added to the jury’s award of $50,016.19, the final judgment on behalf of
plaintiff totals $65,644.49. Accordingly, we find the trial properly applied La.
C.C.P. 970 when it ordered defendants to pay all of plaintiff’s litigation costs and
judicial interest calculated from the date of judicial demand until paid.
Further, the trial court has the discretion to assess costs of a suit in any
equitable manner. Willis v. Ochsner Clinic Foundation, 13-627 (La. App. 5 Cir.
4/23/14), 140 So.3d 338, 361. The trial court is afforded great discretion in
awarding costs and an award of costs can only be reversed on appeal upon a
showing of abuse of discretion. Id. The defendants have failed to show that the
trial court abused its discretion in its assessment of costs. Although plaintiff was
found to be fifteen percent at fault, we disagree with defendant that the trial court
was mandated under La. C.C.P. art. 1920 to reduce the costs awarded to plaintiff
by plaintiff’s percentage of fault. Defendants’ assignment of error is without
merit.
11
Pursuant to La. R.S. 13:4203, “[l]egal interest shall attach from date of judicial demand, on all
judgments, sounding in damages, ‘ex delicto’, which may be rendered by the courts.” Thus, legal interest
attaches from the date of judicial demand until paid.
20-CA-131 C/W 20-CA-132 32
CONCLUSION
Accordingly, for the foregoing reasons, we affirm the trial court’s judgment
in all respects.
AFFIRMED
20-CA-131 C/W 20-CA-132 33
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 2, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
20-CA-131
C/W 20-CA-132
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE E. ADRIAN ADAMS (DISTRICT JUDGE)
CRAIG S. SOSSAMAN (APPELLANT) HELEN M. BUCKLEY (APPELLEE) STEPHANNIE M. ENGLAND (APPELLEE)
STEPHEN C. RESOR (APPELLEE)
MAILED
DAVID E. WAWROSE, JR. (APPELLANT) AMY DUNN HOTARD (APPELLEE)
ATTORNEY AT LAW MARCELLE P. MOULEDOUX (APPELLEE)
3351 SEVERN AVENUE ATTORNEYS AT LAW
SUITE 201 365 CANAL STREET
METAIRIE, LA 70002 SUITE 1710
NEW ORLEANS, LA 70130