Dianne Jackson Versus Underwriters at Lloyd's of London, Vic 3 Enterprises, LLC, and Napoleon White ( 2021 )

DIANNE JACKSON NO. 21-CA-15
VERSUS FIFTH CIRCUIT
UNDERWRITERS AT LLOYD'S OF LONDON, COURT OF APPEAL
VIC 3 ENTERPRISES, LLC, AND
NAPOLEON WHITE STATE OF LOUISIANA
ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT
PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA
NO. 71,668, DIVISION "C"
HONORABLE J. STERLING SNOWDY, JUDGE PRESIDING
September 29, 2021
JOHN J. LEE, JR.
JUDGE
Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and John J. Lee, Jr.
AFFIRMED
JJL
MEJ
RAC
COUNSEL FOR PLAINTIFF/APPELLEE,
DIANNE JACKSON
Matthew D. Hemmer
COUNSEL FOR DEFENDANT/APPELLANT,
UNITED SPECIALTY INSURANCE COMPANY, VIC 3 ENTERPRISES, LLC
AND NAPOLEON WHITE
George O. Luce
Frederic C. Fondren
LEE, J.
Defendants, United Specialty Insurance Company, Vic 3 Enterprises, LLC,
and Napoleon White, appeal the jury’s verdict in favor of plaintiff, Dianne
Jackson. On appeal, defendants seek a reduction in the amount of damages
awarded for future medical expenses, and plaintiff seeks an increase in the amount
of damages awarded for future pain and suffering. Defendants also challenge the
admissibility of certain evidence. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises from a motor vehicle accident that occurred on January 20,
2017. In her Petition for Damages, plaintiff, Dianne Jackson, asserts that at
approximately 6:00 a.m., she was operating her vehicle, a Nissan Altima, in an
easterly direction on La. Highway 44 in St. John the Baptist Parish when a Mack
dump truck owned by Vic 3 Enterprises, LLC (Vic 3) and operated by one of Vic
3’s employees, Napoleon White, struck the rear of plaintiff’s vehicle, causing
personal injuries and property damage to Ms. Jackson. The petition names three
defendants: Vic 3; Napoleon White; and United Specialty Insurance Company, as
the liability insurer of Vic 3 and Mr. White.
Trial of this matter was held August 26 – 29, 2019. Thirteen witnesses
testified: Ms. Jackson, Lieutenant Elton Foret, Dr. Randall Poche, Dr. Robert
Dale, Dr. Firas Hijazi, Dr. Mohammad Almubaslat, Dr. Aaron Wolfson, Dr. Shael
Wolfson, Bridgette Stewart, Vincent Davis, Pat Armour, Dr. Gabriel Tender, and
Stacie Nunez. In addition, the video of the collision; photographs of the plaintiff
and Vic 3’s vehicles; the police report; medical records and bills; and the life care
plans of Dr. Aaron Wolfson and Ms. Nunez, among other things, were admitted
into evidence.
At trial, the trial court read defendants’ admission to the jury as follows: “A
motor vehicle accident occurred on January 20th of 2017 where Dianne Jackson
was rear-ended by a 2015 Mack truck operated by Napoleon White during the
course and scope of his employment with Vic 3 Enterprises, LLC. Napoleon
White was the sole cause of the incident, and liability is not contested. Dianne
Jackson sustained injuries as a result of the incident. This is an admission on the
part of Vic 3 Enterprises, Napoleon White and United Specialty Insurance
Company.”
Ms. Jackson testified that on January 20, 2017, she was on her way to work
when someone “slammed” into the back of her vehicle while she was stopped at a
red light. She explained that it was dark and that the impact pushed her vehicle to
the side of the roadway. Ms. Jackson stated that it was a “hard” impact that
caused her to “jerk” so hard that it hurt her neck. She noted that the sound was so
loud that she thought her vehicle was going to “explode.” Ms. Jackson asserted
that she was in a lot of pain following the accident. She testified that after the
accident, a man came over to her to see if she was okay. She recalled that she
leaned on him and told him that she was “dizzy,” like she was going to “pass out.”
Ms. Jackson further testified that when she told the man he had hit her, the man
replied that he did not hit her and that a man in a big dump truck had hit her and
kept going.
Lieutenant Foret of the St. John Parish Sheriff’s Office testified that on
January 23, 2017, he obtained video of the accident from a crime camera located at
LA 44 and Central Avenue in Reserve where the accident occurred, took a still
shot of the dump truck to that location, and learned that the dump truck looked like
one of Chester Victor’s trucks. He contacted Mr. Victor, who told him that the
dump truck was his and that the driver, Mr. White, worked for him.1 Lieutenant
Foret recalled that after viewing the accident on the video, Mr. White admitted to
1
Mr. White did not testify at trial.
2
being involved in the accident. He indicated that Mr. White did not know he had
struck plaintiff’s vehicle until he saw the video. He noted that Mr. White had a
limp when he came to the police station and that Mr. White also walked with a
limp on the video. Lieutenant Foret explained that Mr. White did not give him any
reason as to why he left the scene but noted that Mr. White was concerned about
losing his job. He testified that he cited Mr. White for hit and run and for careless
operation of a motor vehicle. Lieutenant Foret asserted that the hit and run charge
was later nolle prossed, that the other charge was reduced to defective equipment,
and that Mr. White paid the ticket.
At trial, the video of the accident was played for the jury. Lieutenant Foret
explained that the video showed the dump truck approaching the red light, but he
could not tell if it came to a complete stop due to the poor lighting conditions. He
further explained that after the light turned green, he could see plaintiff’s vehicle
“shake” and then move to the side of the roadway as it was being impacted by the
dump truck. Lieutenant Foret pointed out that the video subsequently showed the
dump truck pulling into the Valero gas station across the street, Mr. White walking
across the street to plaintiff’s vehicle, and then walking back to the dump truck,
after which he left the scene.2 He testified that in the police report, Deputy Batiste
indicated that she was “flagged down” after the accident. Lieutenant Foret was
unsure if Mr. White called the sheriff’s office, and Deputy Batiste responded, or if
Deputy Batiste was at the Valero gas station. Lieutenant Foret stated that he could
not confirm if Mr. White was the individual who “flagged down” Deputy Batiste
because it was not shown on the video, and Deputy Batiste was no longer
employed with the sheriff’s office.
2
The video also shows that after Mr. White walked back to the Valero gas station, he walked out of the
view of the camera for a period of time, after which he got into his truck and left.
3
Lieutenant Foret explained that even though it was a “low-speed crash,”
given the size and height of the dump truck, it was possible for plaintiff’s trunk to
be crushed as depicted in the photographs. Defense counsel moved the police
report and narrative supplement into evidence, and plaintiff’s counsel moved the
video and the photographs of the vehicles into evidence.
Dr. Poche, plaintiff’s primary care physician and an expert in the field of
family medicine, testified that his records for plaintiff began on June 12, 2006, and
that he had been plaintiff’s doctor for at least the past thirteen years. He stated that
he was aware that she had been in an accident on January 20, 2017, and noted that
he had not treated her for chronic neck or back problems before the accident. Dr.
Poche testified that the back and neck complaints that plaintiff had before the
accident were muscular strain. He said that she had back or neck complaints in
September of 2008, April of 2010, June of 2013, and September of 2015. Dr.
Poche testified that plaintiff’s first visit after the January 20, 2017 accident was on
February 23, 2017, wherein she complained of chest wall pain, and he prescribed
anti-inflammatory medication for her. He noted that plaintiff went to St. James
Hospital emergency room after the January 20, 2017 accident.
Dr. Dale, plaintiff’s chiropractor, testified that plaintiff first came to his
office on January 27, 2017, because of pain following a motor vehicle accident on
January 20, 2017. He asserted that during her first visit, plaintiff complained of
pain in both shoulders, both sides of her neck and upper back, her low back, her
left leg, and her right and left arms. He stated that plaintiff also complained of
intermittent numbness in both hands. Dr. Dale testified that he performed an
examination and obtained x-rays. He explained that plaintiff had degenerative
joint and disc disease that was present before the accident, which made her more
susceptible to injury. Dr. Dale testified that it was more likely than not that her
symptomology was caused by the January 20, 2017 accident and that he was able
4
to give that opinion to a reasonable degree of chiropractic certainty. He stated that
he treated her fifty-six times over six months, from January 27, 2017 to June 19,
2017, after which he referred her to a neurosurgeon.
Dr. Dale requested MRIs of plaintiff’s cervical spine, thoracic spine, lumbar
spine, and left knee which were done on March 29, 2017. The MRI report of the
cervical spine indicated that plaintiff had central and right lateral disc herniation,
cord compression and bilateral foraminal stenosis at C3-4; central and right lateral
spondylosis, cord compression, and bilateral foraminal stenosis at C4-5; minor
central spondylosis and advanced bilateral foraminal stenosis at C5-6; and a large
right lateral disc herniation, right cord compression, and bilateral foraminal
stenosis at C7-T1.
Dr. Hijazi, plaintiff’s pain management physician, was accepted as an expert
in the fields of anesthesia and interventional pain management. He testified that
plaintiff came to see him on April 25, 2017, complaining of back and neck pain but
mainly neck pain radiating into the shoulder blades. Dr. Hijazi further testified that
he reviewed the neck MRI, which he said showed three herniations in her cervical
spine, mainly at C3-4. He asserted that those cervical MRI findings were
consistent with her symptoms. He stated that he performed an examination
wherein he found muscle spasms in her neck and limited range of motion in her
neck and shoulders. Dr. Hijazi testified that he gave plaintiff a shoulder injection
during her first visit, but it provided limited relief, which told him it was not a
shoulder issue. Dr. Hijazi further testified that on June 9, 2017, he gave her a
cervical epidural steroid injection, which gave her excellent relief for the radiating
pain down her left arm; however, the pain gradually returned, which told him that
the symptoms were coming from the disc. He thought plaintiff might benefit from
surgery, so he referred her to Dr. Almubaslat for a neurological consult.
5
Dr. Hijazi testified that on July 20, 2017, he gave her a facet block injection,
which provided good relief. He stated that in July of 2017, he started plaintiff on
Norco, a narcotic pain medication, and Duexis, an expensive anti-inflammatory
medication containing ibuprofen and an antacid, but he had concerns of addiction
issues with respect to the narcotic medication. Dr. Hijazi asserted that at some
point plaintiff’s pain increased, so he kept increasing her pain medication until he
could no longer do so. He noted that plaintiff lost her insurance coverage and was
unable to proceed with injections, but he would have continued to recommend
injections and other pain management procedures if she had been able to afford
them. He indicated that he stopped prescribing Duexis when she lost her
insurance.
Dr. Hijazi testified that his diagnosis was disc herniation with radiculopathy,
cervical spine stenosis (a consequence of the disc herniation), facet arthropathy,
and cervical and lumbar facet arthropathy. In his opinion, the disc herniation was
most likely caused by the January 20, 2017 accident. He was able to give that
opinion to a reasonable degree of medical certainty. Dr. Hijazi testified that all of
the treatment he provided to plaintiff and all of the medications he prescribed had
been necessitated by the January 20, 2017 accident.
Dr. Hijazi testified regarding his plan for plaintiff’s pain management. He
asserted that she would benefit from epidural injections for her shooting pain down
the arms and from facet treatments and radiofrequency ablations for her facet joint
pains in the lower back and neck. He explained that the cervical injections should
be done based on her symptoms. Dr. Hijazi recommended up to three cervical
epidural steroid injections per year, up to two cervical radiofrequency ablations per
year for eight years, and two lumbar ablations per year for eight years. He
explained that Dr. Almubaslat’s recommendation of an “ACDF” fusion would help
for the levels treated but would not help for the levels above and below. He stated
6
that fusion might increase degeneration above and below the fusion, and therefore,
plaintiff might need more facet treatments in the future. Dr. Hijazi said he started
her treatment in April of 2017 and that her last treatment was in July of 2019.
Dr. Almubaslat, who was accepted as an expert in the field of neurosurgery,
testified that he first saw plaintiff on August 7, 2017, and that he last saw her on
September 18, 2017. He further testified that during the first visit, plaintiff
complained of neck pain; pain coming down to the left shoulder; pain coming
down her arm, forearm, and hand; and numbness, tingling, and weakness in her left
arm and hand. He asserted that these were the traditional symptoms of nerve
compression or spinal cord compression. Dr. Almubaslat stated that plaintiff said
she had some improvement in the pain following treatment but that the pain was
coming back, and the weakness was getting worse. He said that the MRI report
indicated that plaintiff had significant degenerative changes, disc disease, disc
herniation, disc protrusion, disc extrusion, spondylosis, and stenosis. Dr.
Almubaslat testified that plaintiff’s symptoms during her clinical presentation were
consistent with what he saw on her MRI.
It was Dr. Almubaslat’s opinion that the extruded discs at C3-4 and C7-T1
were completely new injuries caused by the January 20, 2017 accident. It was also
his opinion that the other levels became symptomatic because of the accident. Dr.
Almubaslat testified that he was able to give those opinions to a reasonable degree
of medical certainty. He stated that he believed the January 20, 2017 accident
more likely than not caused plaintiff’s disc injuries because she was able to work
before but not after the accident; she had no symptoms or treatment for her cervical
spine before the accident, but afterward there were abrupt, significant changes in
her symptoms and treatment; the extruded disc seen on the MRI very highly
correlated with a traumatic event; and there was consistency between the MRI and
her symptoms.
7
Dr. Almubaslat further testified that he recommended a C3-4 and C4-5
surgery to remove pressure on both of those discs and fuse the spine, which he
explained was referred to as an “ACDF”—an anterior cervical discectomy fusion.
He explained that those levels were the ones definitely causing stenosis and were
the most dangerous because C3-4 was pressing on the spinal cord. As such, he
believed those levels needed to be addressed immediately. Dr. Almubaslat noted
that there was the risk of fusion failure if the bone did not grow. He testified that
after a period of recovery, if plaintiff still had symptoms at C7-T1, then he would
recommend a second surgery, which could involve one, two, or three levels. Dr.
Almubaslat explained that plaintiff had significant findings at all five levels but
that it would be too dangerous to operate on all five discs at the same time. He
testified that more likely than not plaintiff would also need surgery at C7-T1 at
some point in time. He noted that there was pretty significant compression at that
level. Dr. Almubaslat indicated that there was a risk of paralysis if plaintiff did not
get the first or second surgeries. It was his opinion that the first and the second
surgeries “were made reasonably medically certain” by the January 20, 2017
accident.
Dr. Aaron Wolfson, who was accepted as an expert in life care planning and
vocational rehabilitation, testified that he was asked to determine how the accident
and injuries affected plaintiff’s ability to work and what future medical care
plaintiff would require as a result of the accident. He further testified that he
calculated those costs throughout her life expectancy after meeting with Ms.
Jackson, reviewing her medical records, talking to Dr. Almubaslat and Dr. Hijazi,
reviewing their depositions, and researching costs to obtain a range from the least
to the most expensive. Defense counsel moved Dr. Aaron Wolfson’s life care plan
research worksheet into evidence, and plaintiff’s counsel moved Plaintiff’s Exhibit
8
Book, which contained Dr. Aaron Wolfson’s report dated July 26, 2019, into
evidence.3
Dr. Shael Wolfson, who was accepted as an expert in the field of forensic
economics, testified that he was asked to provide estimates of economic loss
regarding plaintiff’s wages4 and to take Dr. Aaron Wolfson’s life care plan and
calculate the present value of the medical costs. Plaintiff’s counsel moved Dr.
Shael Wolfson’s report and calculations into evidence.
The pertinent figures from that report are as follows:
Lower Upper
Future Medical Care $ 23,999 $ 54,515
Projected Evaluations $ 925 $ 1,095
Therapeutic Modalities $ 345 $ 810
Laboratories/Diagnostics $ 684 $ 1,995
Surgeries/Procedures $443,463 $1,183,362
Medications $710,938 $1,111,289
Equipment and Supplies 169 $ 908
Household Upkeep $ 11,960 $ 16,560
Total $1,192,483 $2,370,534
Midpoint figures were also provided. Two of these categories were further
broken down. The surgeries/procedures included: cervical epidural steroid
injections—$9,019 to $342,417; cervical radiofrequency ablation—$38,593 to
$156,226; bilateral lumbar facet blocks—$3,742 to $8,546; two-level ACDF—
$179,583 to $219,271; and three-level ACDF—$161,706 to $234,620. The
medications included: hydrocodone—$33,396 to $35,522, and Duexis—$677,541
to $1,075,768.
Ms. Stewart testified that she was the Director of Housekeeping at the Hilton
New Orleans Airport and had been Ms. Jackson’s direct supervisor for two-and-a-
half years. She explained that Ms. Jackson’s job entailed cleaning the public space
3
Dr. Aaron Wolfson’s report indicates that the expectation of remaining life at age sixty-two for women is
twenty-three years. The record reflects that plaintiff’s date of birth is January 12, 1957, making her sixty years old
at the time of the accident.
4
These figures are not provided because defendants do not challenge them on appeal.
9
area as a lobby attendant, which involved a lot of pushing, pulling, and lifting. She
further testified that Ms. Jackson worked at the Hilton for a total of twenty-five to
thirty years and was an “awesome” employee.
Mr. Davis testified that he and Ms. Jackson had been friends for fifteen
years. He further testified that after the accident, Ms. Jackson was in a lot of pain,
which never improved. Mr. Davis asserted that before the accident, Ms. Jackson
was a “happy-go-lucky” person, but afterwards she was a moody person who
missed her job and did not have the drive to engage in activities any longer. Ms.
Armour testified that Ms. Jackson was her sister. She further testified that since
the accident, Ms. Jackson, was always sad and in pain. Ms. Armour noted that Ms.
Jackson was not the same person after the accident as she was before the accident.
After plaintiff rested her case, the defense called Dr. Tender, who was
accepted as an expert in the field of neurosurgery. Dr. Tender testified that he was
asked to see Ms. Jackson for a neurosurgical opinion, after which he performed an
independent medical examination (IME) on her and reviewed her medical records.
Dr. Tender further testified that only plaintiff’s C3-4 and C4-5 discs were
symptomatic, and he recommended addressing only those levels with an anterior
cervical discectomy and fusion. He thought surgery at those two levels was a
treatment option but not mandatory. He did not believe that C7-T1 was causing
plaintiff’s radiculopathy, and therefore, he stated that he would not address the
lower three levels mentioned by Dr. Almubaslat. Dr. Tender explained that the
disc herniation at C7-T1 was on the right and that it would press on the C8 spinal
nerve, which would impact certain fingers and the side of the hand but that plaintiff
did not describe that kind of pain. He also explained that a five-level fusion was a
major undertaking that was not indicated and that she would barely be able to
move after such a fusion. Dr. Tender testified that plaintiff’s pathology was clearly
degenerative rather than traumatic in nature, and therefore, unlikely to have been
10
caused by any accident; however, he noted that plaintiff’s symptoms seemed to
have been aggravated by the January 20, 2017 accident.
The defense also called Ms. Nunez as a witness. Ms. Nunez, who was
accepted as an expert in the fields of life care planning and vocational
rehabilitation, testified that she was asked to perform a vocational assessment and a
life care plan for plaintiff. She further testified that she met with Ms. Jackson,
spoke to Dr. Tender, and reviewed medical records. Ms. Nunez stated that she
prepared a report, which contained the following medical projection costs as
recommended by Dr. Tender in pertinent part:
Medical Service/Item Frequency Average One-Time Cost
ACDF – two-level Once $113,006.67
Neurosurgeon 4 times after surgery $ 880.00
Cervical CT scan Once $ 475.00
Physical Therapy Evaluation Once $ 128.33
Physical Therapy 2-3 times per week $ 1,487.50
for 6-8 weeks
Vicodin 10/325 mg. 1 every 4-6 hours $ 512.61-$765.15
for 3 months
OTC anti-inflammatory 1 every 4-6 hours Average annual cost -
$115.20-$172.80
Total $116,490.11-
$116,742.32
Defense counsel moved Ms. Nunez’s report into evidence.
At the conclusion of the trial, the jury rendered judgment in favor of plaintiff
and against defendants and awarded plaintiff damages in the following amounts:
Past Medical Expenses $ 24,946.24
Past Loss of Earnings $ 82,163.00
Future Medical Expenses $1,100,000.00
Future Loss of Earnings $ 150,083.00
Past Pain and Suffering, Mental Anguish $ 150,000.00
Past Loss of Enjoyment of Life $ 50,000.00
Future Pain and Suffering, Mental Anguish $ 50,000.00
Future Loss of Enjoyment of Life $ 25,000.00
Total Damages $1,632,192.24
11
The trial court entered a judgment on the jury verdict on September 11,
2019. On September 18, 2019, defendants filed Defendants’ Motion for Judgment
Notwithstanding the Verdict or Alternatively for a New Trial that was denied on
November 15, 2019. The trial court found that “reasonable minds could have
arrived at the verdict handed down in this case.”
Defendants and plaintiff have appealed the jury’s verdict.
STANDARD OF REVIEW
In reviewing findings of fact, appellate courts employ a “manifest error” or
“clearly wrong” standard of review. Antill v. State Farm Mut. Ins. Co., 20-131
(La. App. 5 Cir. 12/2/20), 308 So.3d 388, 401-02 (citing 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
evidence, the fact-finder’s choice between them cannot be manifestly erroneous or
clearly wrong. Id. While an appellate court must review the 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.” Antill v. State Farm Mut. Ins., supra (citing Menard v. Lafayette Ins.
Co., 09-1869 (La. 3/16/10), 31 So.3d 996, 1007).
DISCUSSION
Defendants’ Assignment of Error Number One
In the first assignment of error, defendants argue that the jury’s award of
$1,100,000 in future medical expenses is grossly excessive and not supported by
medical evidence showing that the expenses are necessary and inevitable. They
assert that there were improperly supported items in plaintiff’s life care plan,
including two neck surgeries and alternative courses of treatment that should be
12
obviated by surgery; a second neck surgery involving three levels even though Dr.
Almubaslat had “no idea” how many levels might be involved; pain medication
inflated by several hundred thousand dollars resulting from a miscalculation by Dr.
Wolfson regarding the cost of Duexis; epidural steroid injections with a cost
estimate ranging from $8,178 to $310,500, with the large range driven by what Dr.
Wolfson admitted was contradictory information presented by Dr. Hijazi about
desired frequency; interventional procedures for which Dr. Hijazi failed to provide
the number of spinal levels involved leaving Dr. Wolfson, a non-medical doctor, to
guess at medical recommendations for cost purposes; extensive treatment
recommended to plaintiff years ago that she avoided for a lot of reasons according
to Dr. Hijazi; routine neurosurgical care that Dr. Wolfson admitted should be
removed from the life care plan once plaintiff has her recommended surgery; and
$45,885 in compliance drug testing based on the assumption, which was
contradicted by Dr. Hijazi, that plaintiff will be on narcotics for the rest of her life.
Defendants argue that when these unsupported items are eliminated from
consideration, the life care plan does not support anything approaching $1,100,000
in future medical expenses. They ask this Court to either reduce plaintiff’s future
medical expenses to an amount not to exceed $263,016.44, which they argue is the
highest award that could conceivably be justified, and remand to the trial court for
an appropriate adjustment in judicial interest, or remand for a new trial on the issue
of damages with all costs assessed to plaintiff.
Plaintiff responds that the award of $1,100,000 in future medical expenses is
not reversible error because evidence introduced during trial supports multiple
combinations of future treatment that exceed that figure. She further responds that
defendants cannot complain about the calculations included in Dr. Wolfson’s life
care plan when they themselves moved these documents into evidence.
13
Plaintiff contends that the jury could have properly determined that her
condition stabilized under the pharmacological plan and awarded $1,100,000 for
prescriptions and related treatment without any awards for future surgeries or pain
management procedures. She asserts alternatively that the jury could have
properly awarded $1,100,000 in future medical expenses by calculating the cost of
the first cervical surgery, lumbar pain management procedures, cervical radio
frequency ablations, and some low amount of prescriptions. Plaintiff further
asserts that the jury could have calculated $1,100,000 in future medical expenses
by awarding her the costs of both cervical surgeries, lumbar injections, and the
lowest recommended prescription drug costs. She also contends that the jury could
have calculated $1,100,000 in proper future medical expenses using some other
combination of treatment because none of the parties proposed a jury interrogatory
that included any breakdown of future medical expenses by type.
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, writ
denied, 00-37 (La. 2/18/00), 754 So.2d 976. The proper standard for determining
whether a plaintiff is entitled to future medical expenses is proof by a
preponderance of the evidence that the future medical expense will be medically
necessary. Menard v. Lafayette Ins. Co., 31 So.3d at 1006. “Awards will not be
made in the absence of medical testimony that they are indicated and setting out
their probable cost.” 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.
An award for future medical expenses is in great measure highly speculative
and not susceptible to calculation with mathematical certainty and generally turns
on questions of credibility and inferences. Menard v. Lafayette Ins. Co., 31 So.3d
14at 1006-08. Before reversing a jury’s conclusions of fact, 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. Guillory v. Ins. Co. of N. Am., 96-1084 (La. 4/8/97), 692 So.2d
1029, 1032. 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 an expert, in whole or in part. Id.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.In the instant case, plaintiff and defendants presented very different life care
plans at trial. Dr. Aaron Wolfson, plaintiff’s expert in life care planning and
vocational rehabilitation, testified that he calculated the costs of plaintiff’s future
medical care after meeting with plaintiff, reviewing her medical records, talking to
Dr. Almubaslat and Dr. Hijazi (her treating physicians), reviewing their
depositions, and researching costs. His life care plan contained the costs for
plaintiff’s future medical care, which included projected evaluations, therapeutic
modalities, laboratories/diagnostics, surgeries/procedures, medications
(hydrocodone and Duexis), equipment/supplies, and household upkeep. Dr. Shael
Wolfson, plaintiff’s expert in forensic economics, took Dr. Aaron Wolfson’s life
care plan and calculated the present value of the medical costs, providing lower,
mid-point, and upper ranges. The lower range was $1,192,483; the mid-point
range was $1,781,508; and the upper range was $2,370,534.
15
Stacie Nunez, defendants’ expert in life care planning and vocational
rehabilitation, testified that she calculated the costs of plaintiff’s future medical
care after speaking to Dr. Gabriel Tender, defendants’ neurosurgery expert who
performed an IME on plaintiff, and after reviewing plaintiff’s medical records.
Her life care plan contained the costs for plaintiff’s future medical care, which
included an ACDF two-level surgery, neurosurgeon fees, a cervical CT scan, a
physical therapy evaluation, physical therapy, and medication (Vicodin and anti-
inflammatories). Ms. Nunez provided a range of $116,490.11 to $116,742.32.
After listening to the testimony and considering both life care plans, the jury
clearly believed plaintiff’s witnesses and awarded plaintiff $1,100,000 in future
medical expenses. That award was $92,483 less than the most conservative
amount in the life care plan prepared by plaintiff’s experts but far more than the
amount in the life care plan prepared by defendants’ expert.
It is impossible for us to determine how the jury decided to award the
$1,100,000, since it was not asked to award future medical expenses by category.
Nevertheless, the evidence admitted at trial supports multiple combinations of
future treatment. The jury may have awarded plaintiff money for medications and
other expenses without any award for surgeries or alternative treatments, or it may
have awarded money for the first surgery and some alternative treatments and
medications. Or, the jury may have awarded money for both surgeries and some
medications, or it may have awarded money for most of the expenses in the upper
range except for Duexis. Or, the jury may have awarded plaintiff money for all of
the surgeries and alternative treatments and some of the medications in the lower
range in the event that the surgeries failed, which Dr. Almubaslat admitted could
occur. There are several other combinations of future medical treatment expenses
that the jury could have properly awarded as well.
16
On appeal, defendants specifically challenge the high-priced items in Dr.
Aaron Wolfson’s life care plan, which include the two neck surgeries, the
alternative courses of treatment (steroid injections, facet blocks, and
radiofrequency ablations), and the medications. Defendants argue that the costs for
alternative courses of treatment should be obviated by the two neck surgeries;
however, Dr. Hijazi indicated that plaintiff might need some alternative courses of
treatment based on her symptoms even if she has the first surgery. He explained
that the first surgery would help with the levels treated but would not help for the
levels above and below.
Defendants also argue that the costs for Duexis, an anti-inflammatory
medication, were improperly calculated by Dr. Wolfson; however, a review of the
testimony reveals that those costs were properly calculated. Although Dr. Aaron
Wolfson initially testified that Duexis costs $67 to $106 for thirty tablets, he then
testified immediately thereafter that for one pill a day, the cost would be $24,436
to $38,799 per year. If those figures are divided by 365 days, the cost per pill
would be approximately $67 and $106, respectively. Also, Dr. Aaron Wolfson
testified that Dr. Hijazi stated in his deposition that if plaintiff had not lost her
health insurance, he would have continued to prescribe Duexis because she was
doing well on that medication.
Defendants further argue that costs for a second surgery should not be
allowed because Dr. Almubaslat did not know if that surgery would be
recommended and if so, whether it would be for one, two, or three levels. At trial,
Dr. Almubaslat testified that it was more likely than not that plaintiff would need a
second surgery at C7-T1 as there was significant compression at that level. It was
his opinion that the first and second surgeries were made reasonably medically
certain by the January 20, 2017 accident. A plaintiff does not have to prove that
future surgery is “absolutely necessary” but only that such care is medically
17
necessary to correct conditions which presently exist. Hoskin v. Plaquemines
Parish Government, 97-61 (La. App. 4 Cir. 12/1/97), 703 So.2d 207, 210-11, writs
denied, 98-270, 98-271 (La. 4/3/98), 717 So.2d 1129. We find that plaintiff proved
at trial that the first and second surgeries are medically necessary to correct
conditions which plaintiff currently has.
In conclusion, the jury was presented with two life care plans and chose the
plan prepared by plaintiff’s experts. Where there are two permissible views of the
evidence, the fact-finder’s choice between them cannot be manifestly erroneous or
clearly wrong. Antill, supra. We find no error in the jury’s determination. Dr.
Aaron Wolfson testified at length about his proposed life care plan and gave
adequate reasons for the necessity and cost of its elements. We find that
$1,100,000 is not an unreasonable award for the significant injuries and future life
care sums testified to at trial. As such, we affirm the jury’s award of future
medical expenses.
Defendants’ Assignment of Error Number Two
In the second assignment of error, defendants argue that the trial court erred
by allowing the jury to be given irrelevant, inflammatory, and misleading evidence
suggesting that the accident was the result of a hit and run by defendants. They
contend that despite their admission of liability and general objection to all liability
evidence by way of a motion in limine, the trial court erroneously allowed plaintiff
to prove liability at trial. Defendants further contend that given that the collision
was a low-speed one, it appeared that plaintiff insisted on presenting her case for
liability in order to introduce other crimes evidence to smear them and prejudice
the jury. They argue that the attacks on Mr. White, especially those related to
accusations that he committed a hit and run, were unduly prejudicial. Defendants
note that Mr. White did not testify at trial and was not prosecuted for hit and run.
18
Plaintiff responds that the trial court did not commit reversible error by
accepting evidence of the events following the collision when that evidence was
introduced by defendants and was needed to rebut multiple defense theories. She
also asserts that testimony that Mr. White attempted a hit and run was necessary to
rebut defendants’ false narrative that the collision was a minor impact that he
might not have even noticed. She further responds that defendants’ motion in
limine was flawed from the start because it was premised on the material
misrepresentation that all parties joined in the stipulation. Plaintiff said she
informed defendants that she did not agree to a stipulation regarding liability.
Plaintiff also points out that during Lieutenant Foret’s testimony, defendants
never objected to any question regarding the circumstances of the collision. She
further states that defendants themselves moved the entire police report and
supplemental investigation into evidence. Plaintiff argues that defendants cannot
complain about evidence that they themselves moved into evidence and never
objected to. She contends that even if the trial court erred by admitting the
officer’s testimony regarding Mr. White, which she denies, any error is harmless
because the evidence was cumulative. Plaintiff also responds that she is allowed to
present the totality of her case to the jury and that the facts of defendants’ conduct
and liability lends itself to proof of other elements of damages, such as fright, fear,
and mental anguish.
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. All
relevant evidence is admissible except as otherwise provided by positive law, and
evidence which is not relevant is not admissible. La. C.E. art. 402. Although
relevant, evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
19
misleading the jury, or by considerations of undue delay, or waste of time. La.
C.E. art. 403. As a general rule, trial courts are afforded great discretion
concerning the admission of evidence, and their decisions to admit or exclude
evidence should not be reversed on appeal in the absence of an abuse of their
discretion. See Medine v. Roniger, 03-3436 (La. 7/2/04), 879 So.2d 706;
Perniciaro v. Hamed, 20-62 (La. App. 5 Cir. 12/16/20), 309 So.3d 813, 834.
Error may not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is affected. La. C.E. art. 103(A).
Erroneous evidentiary rulings are subject to a harmless error analysis. Metairie
Club Gardens Ass’n, Inc. v. Par. of Jefferson, 16-139 (La. App. 5 Cir. 12/28/16),
209 So.3d 1071, 1077 (citing Lapuyade v. Rawbar, Inc., 15-705 (La. App. 5 Cir.
04/13/16), 190 So.3d 1214, 1220, writs denied, 16-908 (La. 9/6/16), 199 So.3d 610and 16-916 (La. 9/6/16), 199 So.3d 611; Finch v. ATC/Vancom Mgmt. Srvs. L.P.,
09-483 (La. App. 5 Cir. 01/26/10), 33 So.3d 215, 221). Moreover, where evidence
is admitted that is merely cumulative of other evidence in the record, any error in
its admission is harmless. Id.In Palmer v. Goudchaux/Maison Blanche, Inc., 588 So.2d 737, 740-41 (La.
App. 5 Cir. 1991), writ denied, 590 So.2d 1186 (La. 1992), this Court upheld the
trial court’s ruling admitting evidence of the incident5 even though the defendant
stipulated to liability. In that case, the defendant argued that admission of the
security camera videotape of the incident and still frames taken from the tape was
error because its stipulation as to liability rendered the videotape irrelevant.
Alternatively, the defendant argued that even if the videotape was relevant, its
probative value was outweighed by its prejudicial effect, citing Article 403. This
Court noted that the trial judge had reviewed the videotape and ruled it admissible
5
A customer filed a personal injury action against the department store after he was injured in a physical
altercation with a store security guard.
20
because he found it relevant to the issue of what damages the plaintiff suffered
from this incident. Citing Article 103(A), this Court did not find that the trial
judge abused his discretion in ruling that the videotape was relevant, noting that
the plaintiff testified as to his version of events and that the videotape corroborated
that version up to the point when the security guard reached him. This Court also
found that the videotape was a visual recording of at least some of the events for
which the plaintiff was seeking damages, and therefore, it was clearly relevant to
the jury’s determination of what actually transpired. As to the issue of prejudice,
this Court found none that could possibly have outweighed the probative value of
the videotape or otherwise adversely affected any substantial right of the
defendant.
In the instant case, the record reflects that on August 9, 2019, defendants
filed a Stipulation of Liability wherein they alleged that it was entered into by “all
parties.” Thereafter, on August 15, 2019, defendants filed a motion in limine to
exclude any evidence of and reference to defendants’ liability at trial. On August
20, 2019, plaintiff filed a motion to strike and for sanctions and an opposition to
defendants’ motion in limine. In her motion, plaintiff asserted that she did not
agree to a stipulation of liability and argued that defendants falsely alleged that she
entered into the stipulation. As such, plaintiff asked that the stipulation be stricken
and that she be allowed to present her full case and prove all necessary elements of
her damages to the jury.
According to the August 22, 2019 minute entry, defense counsel moved to
have the stipulation for liability accepted, but plaintiff’s counsel did not agree to
the stipulation. After extensive argument, defense counsel moved to use the phrase
“admission of liability” instead of “stipulation of liability,” which the trial court
accepted. Defense counsel then moved to exclude the testimony of the police
officer. Following arguments of counsel, the trial court ruled that it would allow
21
the testimony of the police officer at trial. Defense counsel and plaintiff later
agreed that defendants’ admission of liability would be read to the jury. The trial
court later read the admission to the jury.
During her opening statement, defense counsel said that she and plaintiff’s
counsel had very different ideas of how the accident happened and about plaintiff’s
injuries. Defense counsel stated that they did agree that this case was about a hit
and run rear-end accident. She noted that Mr. White did not know at the time that
he had made contact with plaintiff’s vehicle. She told the jury to ask themselves,
“What kind of impact was this accident?” and “What kind of injuries resulted from
the accident, as opposed to what kind of injuries were predating the accident and
not caused by it?”
Lieutenant Foret, the first witness at trial, testified regarding the facts and
circumstances surrounding the accident. Defense counsel made two objections that
were overruled which pertained to whether the truck had been recently washed and
to the playing of the entire videotape of the accident. She did not object to
questions regarding details of the accident. Nevertheless, even though defendants
did not make contemporaneous objections at trial to the evidence in question, we
will consider defendants’ assignment since the trial court denied defendants’
motion in limine. (See State v. Parker, 421 So.2d 834, 840 (La. 1982), cert.
denied, 460 U.S. 1044, 103 S.Ct. 1443, 75 L.Ed.2d 799 (1983), where the
Louisiana Supreme Court considered a defendant’s other crimes challenge to
events surrounding his arrest even though he did not make a contemporaneous
objection to the testimony because the trial court had denied his motion in limine.)
After reviewing the facts of the instant case and pertinent jurisprudence, we
find that the trial court did not abuse its discretion by admitting evidence that Mr.
White engaged in a hit and run accident with plaintiff. First, the evidence was
relevant, not to the issue of liability, but to the issue of what damages plaintiff
22
suffered from this accident. Second, the evidence was relevant to rebut the
assertions made by defense counsel in her opening statement that Mr. White left
the scene because he did not think he had struck plaintiff’s vehicle. Third, even if
the evidence was erroneously admitted, it was cumulative and therefore harmless,
as the police report, which was admitted into evidence, contained details of the
accident. Fourth, defense counsel herself moved the police report into evidence.
Additionally, we find that the probative value of the evidence was not substantially
outweighed by the danger of unfair prejudice, and the admission of the evidence
did not adversely affect a substantial right of defendant. See La. C.E. art. 103(A);
La. C.E. art. 403; Palmer v. Goudchaux/Maison Blanche, Inc., supra. Further, it is
noted that although Lieutenant Foret testified that defendant was charged with hit
and run, he later indicated that charge was dismissed.
This assignment is without merit.
Plaintiff’s Assignment of Error
In her sole assignment of error, plaintiff argues that the jury ruled without
reasonable basis when it awarded her only $75,000 for future pain and suffering
when it simultaneously found that her injuries were severe enough to require more
than a million dollars’ worth of treatment following the trial. She further argues
that the lowest award she could find in Louisiana was $350,000 in Savant v. Hobby
Lobby Stores Inc., 12-447 (La. App. 3 Cir. 11/7/12), 104 So.3d 567, where Savant
underwent two separate neck surgeries, a single-level procedure followed by a
three-level procedure. Plaintiff claims that the appellate court in Savant
determined that $350,000 was the lowest possible reasonable figure. She asserts
that in her case the figure would be $403,975 in today’s money based on an annual
inflation rate of 1.61%, citing Pete v. Department of Corrections, 17-1131 (La.
App. 3 Cir. 5/9/18), 247 So.3d 1084. Plaintiff asks that her future general damages
23
be increased to $203,975 so that her total past and future general damages would
be $403,975.
Defendants respond that plaintiff is not entitled to more than the $275,000 in
general damages that the jury awarded to her. They further respond that Savant did
not hold that $350,000 was the lowest amount of general damages that could be
reasonably awarded in a two-level neck surgery. Rather, defendants argue that the
appellate court held that the trial court did not abuse its discretion in awarding that
much. Defendants also note that the fact pattern in Savant is very different from
that of the instant case. Further, they contend that there are many other Louisiana
cases involving multiple spinal surgeries where lower general damages were
awarded than plaintiff received, citing Monte v. State Farm Mut. Auto. Ins. Co.,
13-979 (La. App. 3 Cir. 5/21/14), 139 So.3d 1139, which they said affirmed
$200,000 in general damages to a plaintiff who underwent two separate cervical
fusions.
General damages are those which may not be fixed with pecuniary
exactitude; instead, they “involve mental or physical pain or suffering,
inconvenience, the loss of intellectual gratification or physical enjoyment, or other
losses of life or life-style which cannot be definitely measured in monetary terms.”
Duncan v. Kansas City Southern Railway Co., 00-66 (La. 10/30/00), 773 So.2d
670 (citing Keeth v. Dept. of Pub. Safety & Transp., 618 So.2d 1154, 1160 (La.
App. 2 Cir. 1993)). Vast discretion is accorded the trier of fact in fixing general
damage awards. Duncan v. Kansas City Southern Railway Co., supra (citing La.
C.C. art. 2324.1; Hollenbeck v. Oceaneering Int., Inc., 96-377 (La. App. 1 Cir.
11/8/96), 685 So.2d 163, 172, writ denied, 97-493 (La. 4/4/97), 692 So.2d 421.
This vast discretion is such that an appellate court should rarely disturb an award
of general damages. Duncan v. Kansas City Southern Railway Co., supra (citing
Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260-61 (La.1993), cert.
24
denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994)). Thus, the role of
the appellate court in reviewing general damage awards 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. Id.The initial inquiry, in reviewing an award of general damages, is whether the
trier of fact abused its discretion in assessing the amount of damages. Tamayo v.
Am. Nat. Gen. Ins. Co., 14-130 (La. App. 5 Cir. 9/24/14), 150 So.3d 459, 470
(citing Cone v. National Emergency Serv., Inc., 99-0934 (La. 10/29/99), 747 So.2d
1085, 1089; Reck v. Stevens, 373 So.2d 498 (La. 1979)). Only after a
determination that the trier of fact has abused its “much discretion” is a resort to
prior awards appropriate and then only for the purpose of determining the highest
or lowest point which is reasonably within that discretion. Tamayo v. Am. Nat.
Gen. Ins. Co., supra (citing Coco v. Winston Indus., Inc., 341 So.2d 332 (La.
1976)).
The abuse of discretion standard of review applies when an appellate court
examines a fact-finder’s award of general damages. Wainwright v. Fontenot, 20-
492 (La. 10/17/00), 774 So.2d 70, 74. The assessment of the appropriate amount
of damages, by a trial judge or jury is a determination of fact, one entitled to great
deference on review. Id.In the instant case, the record reflects that the jury awarded plaintiff $50,000
in future pain and suffering and mental anguish, $25,000 in future loss of
enjoyment of life, $150,000 in past pain and suffering and mental anguish, and
$50,000 for past loss of enjoyment of life, for a total of $275,000 in general
damages. Plaintiff argues that the $75,000 amount for future pain and suffering,
mental anguish, and future loss of enjoyment of life was too low. However, the
jury heard the testimony and considered the evidence. It could have reasonably
found that plaintiff’s pain and suffering would be less in the future after she had
25
the recommended surgeries and procedures and/or took the recommended
medications. Based on our review of the testimony and the evidence, we find that
the jury did not abuse its discretion in its general damage award. Therefore, we
need not look to prior awards as suggested by plaintiff. Only after finding that the
award constitutes an abuse of discretion is a resort to prior awards appropriate and
then only for the purpose of determining the highest or lowest point which is
reasonably within that discretion. See Tamayo v. Am. Nat. Gen. Ins. Co., supra.
CONCLUSION
For the foregoing reasons, we affirm the judgment in this matter.
AFFIRMED
26
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. 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
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IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
SEPTEMBER 29, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
21-CA-15
E-NOTIFIED
40TH DISTRICT COURT (CLERK)
HONORABLE J. STERLING SNOWDY (DISTRICT JUDGE)
AUSTIN MARKS (APPELLEE) MATTHEW D. HEMMER (APPELLEE) PRZEMEK M. LUBECKI (APPELLEE)
MITCHELL J. HOFFMAN (APPELLEE) FREDERIC C. FONDREN (APPELLANT) GEORGE O. LUCE (APPELLANT)
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