Daniel E. Millican VS Coregis Insurance Company, East Baton Rouge Parish School Board and Virginia B. Womack
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 1270 DANIEL E MILLICAN VERSUS COREGIS INSURANCE COMPANY EAST BATON ROUGE PARISH SCHOOL BOARD AND VIRGINIA B WOMACK Judgment Rendered On Appeal DEe 2 1 2007 from the Nineteenth Judicial District In and For the Parish of East Baton Court Rouge State of Louisiana Docket No 507 245 Honorable Leon Cannizzaro Jr Ralph L Baton Counsel for Plaintiff Appellant Fletcher Daniel E Millican Rouge LA Counsel for Defendants Harold J Adkins Douglas K Foster Sanettria R Baton Coregis a j Board and Rouge LA Q YI r r Insurance East Baton Glasper P ARRO BEFORE J Judge Ad Hoc Presiding Cr1 Company Rouge Parish School Virginia B Womack GUIDRY AND McCLENDON JJ Ctm w14 o Appellees Ik AJ M avoJ Q O r o McCLENDON J Plaintiff defendants appeals finding that the accident between his follow we vacate judgment following a plaintiff was truck and pickup verdict in favor of the jury a injured not result of a For the school bus a as reasons an that and render FACTS AND PROCEDURAL HISTORY On 5 May against Coregis Board and came 2002 on over on East Baton into the Millican to avoid saw a an a on log to vehicle severe 1 Coregis Insurance 3 Company truck While 2 As a his pickup by Womack vehicle s as she In pull Womack pulled an out attempt truck but the school Defendants answered the Following a jury trial and 4 2005 the twelve member liability truck result of the accident Millican personal injuries afforded pickup on stopped Millican to strike his truck reverse that which resulted in the lot to turn around and going School Rouge Louisiana when he Springs Road was collision Millican tried November 2 Tacoma of traffic and pass Millican private Parish Rouge petition Millican asserted petition generally denying his allegations merits petition for damages Parish school bus driven that the school bus s Baton Road in Baton overturned Rouge oncoming lane that he suffered In his Greenwell bus collided with Millican alleged 1 Springs backed the school bus into East a driving his Toyota was of Millican filed Company Womack he scene blocking of all lanes an B Greenwell upon the observed Daniel E Insurance Virginia October 28 nOlihbound 2003 jury coverage to the East Baton on the rendered Rouge a Parish School Board 2 At the time of the accident Millican twenty six years old and was working saute cook at Macaroni Grill and was also working part time at a woodworking shop his way from his job when the accident occurred was on as a was cook to his aftemoon 2 job at the as a He woodworking shop verdict in favor of the defendants signed November 28 2005 on at his costs Millican that answer result of the defendants 3 three Judgment claims with s a motion for judgment was prejudice probable was more suffered in the trauma presented no justice and entitling him the motion to a judicially confessed that his injured in resulting judgment a and that the any other in hearing a manner the jury miscarriage on signed was the were to Millican according in testimony injuries bus accident Following denied and the was was the evidence JNOV not subject Therefore supported by not than evidence that he than the school bus accident was pre trial order accident had occurred that the medical an the notwithstanding asserting that the defendants stipulated in the established that it 2006 to accident had occurred that the defendants an verdict of nine 4 verdict JNOV their vote a dismissing Thereafter Millican filed that by February on of 13 March 16 2006 ASSIGNMENTS OF ERROR Millican has following 1 appealed the November judgment assigning the 28 2005 as error The trial from the erred in stipulations completely accident court new had in allowing the defense at trial happened that defense counsel to deviate pre trial order to the to raise that a by presenting jury though the pre trial order had indeed happened between no even an accident stipulated plaintiff appellant s pickup truck and defendant 2 and s school bus The trial court erred in refusing to allow plaintiff appellant the jury the stipulation in the pre trial order that an publish accident had happened between plaintiff appellant s pickup to to truck and defendant s school bus 3 The jury trial was held before the Honorable Leon Cannizzaro Jr sitting as judge ad hoc for the Honorable Wilson Fields 4 The record also contains However it the was a copy of the same judgment signed on November 21 2005 the November 28 2005 signed judgment that was mailed by the court to parties 3 3 The trial court ened in refusing to allow plaintiff appellant to cross examine defendant Virginia B Womack on her answers to intenogatories 4 The trial court ened in refusing allow to plaintiff appellant introduce into evidence the accident report prepared by the Louisiana State Police even though both parties had listed it as to exhibit in their pre trial order and Womack attached it Virginia B an intenogatories the accident 5 The in response to even to though her defendant to answers Intenogatory Number 5 as to how happened jury ened in finding that plaintiff appellant was not injured in an accident when all treating physicians and defendants 1MB expert stated in their respective opinions that plaintiff appellant was injured in the accident and there was no evidence whatsoever to the contrary presented by the defendants 6 The trial court ened in refusing to enforce sanctions against defendants attorney and or requiring defendants attorney to pay reasonable expenses for his disobeying the pre trial order as required by LSA C C P art 1551 DISCUSSION The Pre trial Order In his initial en ed in on completely new did not the morning by the defendants on to 5 assume to Millican the Also on expert Dr Allen Joseph that no The verdict form Plaintiff the accident the actually was Millican proposed was submitted to the injured in an originally requested Emphasis added as that an verdict form its first a accident presented question whether an morning of trial the video deposition accident had occuned that Daniel Millican lawsuit 5 court of trial the defendants for the first time raised the morning of trial had accident had occUlTed of defense that the trial affirmative defense to the matter that is According occur asserts defendants to deviate from the pre trial order allowing asserts that assignment of enol Millican taken wherein Dr In light of these jury had as its first accident which is the that the first 4 question Joseph was asked two developments question Do you find subject matter of this of the verdict form refer to counsel for Millican raised an objection to in violation of the pre trial order and that it The pre trial order in all its this defense new asserting it was prejudiced the plaintiff amended forms forth set as an established fact That motor a vehicle accident occurred October 28 on 2002 involving a 1999 Toyota Tacoma pickup truck operated by plaintiff Daniel E Millican and a 1998 GMC school bus operated by Virginia B Womack while in the course and scope of her employment with the East Baton Rouge Parish School Board Millican occur objected to any issue of liability the over was never trial order The trial case am agreed upon and an to amend the pre pretrial order was Counsel position replied continue the trial This has been And this case occurred three years ago entered into March 1 2004 There was prepared continued three times This orally moved then asked counsel for Millican what his court not not from his former associate stated that the would be if the amendment was allowed I during trial that an accident did objection the defendants attorney who had only In response to the shortly before taken reference established fact that to an accident This is happened not a stipulation of liability I understand that I m not holding him to a stipulation of liability Im simply holding him to the established fact Thereafter the trial trial order stating Millican was denied the defendants court that the asserts denied the trial parties that court the order and argue that what followed thereafter bound were as to liability Your Honor by the court to s order nevertheless allowed defendants an amend the pre the motion to amend the pre trial order although accident never occurred to deviate from clearly evidenced by Once the motion to amend the pre trial order denied counsel for the defendants stated stipulation motion Millican once stipulation of liability s that they never entered into attorney replied again Im again I ll repeat Im not simply asking 5 that was asking for a defendants a counsel the not that jury be able we are Because that s from the change the pretrial order and today tell going to prove an accident didn t happen to in direct contradiction of the established facts That s original attorney why had the we pretrial conference And my first indication that they were going to deviate from something that had already been established was yesterday when they handed Your Honor a revised verdict form that had been faxed to my office that I to this morning a revised verdict form showing did an accident even happen So now it s forcing my client to jump through two hoops Did an accident happen And I think it s and was he injured prejudicial Especially in the middle of the trial coming up with a new strategy and denying what is written and is in the pretrial got see order The defendants attOlney not going refused to stated it opening to contest allow not was In the of an accident restricting At the right to rely opening s anyone on statement the to indicated that he Further nor the trial statement that an into Counsel of the defendants counsel called the argued that Womack s credibility Defense counsel told the jury that Womack accident did an was an not to case now versus that of being called was was happen and that they would have case was going to testify decide if there accident At the outset of the second brought the trial court pre trial orders accident 6 occun ed accident question and repeatedly argued that the theme of the credibility that restricting credibility in that it would be the testimony of the bus driver plaintiff comi recognized that retired who had driven for the school board for fourteen years the it was court was despite having the pre trial order the testimony time same never happened last minute amendment statements Millican had the one a that that he replied occun s Specifically counsel subsequently herein of trial testimony attention to certain law and requested ed be day that the pre trial order published to the s attorney jurisprudence regarding established fact that an jury and also requested sanctions refened to LSA C C P 6 s Millican mi 1551 6 which will be discussed The defendants clearly an Millican attorney opposed the request issue and that the pre trial order stating that liability was was Counsel for ambiguous replied Your Honor there is ambiguity We are arguing the Weare just difference between a fact and a question of law simply asking that that question of fact that s agreed to be read to the jury We are not saying that Ms Womack is liable This is not an issue of admission of liability It is just simply stating that a wreck or accident happened between two vehicles Now if she wants to say no Daniel hit me that s fine This is not restraining them from the contested issues of law contesting liability I am not asking that they give up their defense on liability I am asking that they give up the defense on the fact that an accident happened a collision between two vehicles The trial court denied the and denied the court if he request to read the pre trial order request for sanctions was able to argue in his agreement that an accident occuned See I think the we start to Millican closing s to the attorney then asked the statement that there was an The trial court replied problem I have with that then is I think get into ancillary arguments that If I allow you I have to allow him to go into ancillary outside of their outside of their presence instance things to that purview do are For discovery In other words you are going to get up essentially and say hey those guys made a giant mistake by stipulating to this because now they have changed their minds He is going to come back and say this is really an ambiguous document and if Millican s counsel was doing his job he would have propounded the right discovery questions to us and we would have answered them All issues that are really not before them What essentially is before them is going to be the witnesses that they heard on the witness stand the depositions that is what they are going to be asked to make this decision on and the law that applies I just don t want to bog this thing down on things that I think are not relevant and I think that takes it out of what has been presented to the jury and out of things that they are really in a position to understand So for those reasons I don t want to I am not going to restrict you to argue with regard to the contradictions you feel that may have been present in Ms Womack s testimony with regard to the denial of an accident but I am not going to allow you to get up and argue that the defense has already admitted that an accident occurred and therefore jury you should not even consider anything that was presented by the defense which contradicts the fact that an accident has occuned because they 7 jury have to it already agreed Emphasis added Thus Millican argues the defendants allowing to I m not the trial court the ignore which resulted in substantial prejudice going to to let you do that committed reversible stipulations a district court provides the court may in its discretion direct the attorneys for the parties to appear before it for conferences to consider any of the following 1 The simplification of the issues including frivolous claims 2 The or the elimination of defenses necessity desirability of amendments or the to pleadings 3 What material and issues exist without substantial facts controversy and what material facts and issues in good 4 are actually and faith controverted stipulations regarding the authenticity of documents and advance rulings from the court on the admissibility of Proof evidence 5 Limitations or expert testimony restrictions on or regulation of the use of under Louisiana Code of Evidence Article 702 6 The control and scheduling of discovery 7 The identification of witnesses documents and exhibits 8 Such other matters as may aid in the disposition of the action B The court shall render action taken at an order which recites the the conference the amendments allowed pleadings and the agreements made by the parties the matters those not of by admissions counsel Such order controls the action as to the to any of considered and which limits the issues for trial to disposed unless modified at the or agreements subsequent trial to course of lOf the prevent manifest inj ustice Emphasis added party s attorney fails to obey a pretrial order or to or is appear at the pretrial and scheduling conference substantially unprepared to participate in the conference or fails to participate in good faith the court on its own motion or on C If a 8 in of the pre trial order the plaintiff Louisiana Code of Civil Procedure article 1551 A In any civil action in error the motion of are a party after hearing may make such orders just including 4 In lieu of orders in addition or and other sanction the to any court 2 the attorney representing the party or both to pay the reasonable expenses incurred by noncompliance with this Paragraph including attorney fees may require the party 3 in Article 1471 provided as The trial required proceedings has much discretion in court to do in so that so orderly expeditious an court to the Insurance Co Foley v it be modified 1551 injustice the order to at trial this to discretion must be and presentation 778 So 2d 1 10 writs denied So 2d 1026 and 1027 appellate Inc we amendment recognize to the pre allow the amendment the parties the trial 691 So 2d 1 Cir 3 27 97 subsequent course of action but LSA C C P art the pre trial on cases rulings and structured accordingly 99 2597 p 9 La a showing of intervene Southern 00 1930 p 24 La an Grayson v 1 Cir 11 3 00 App 00 3270 and 00 3311 upon prevent substantial La 782 126 01 abuse of that discretion Casing of App 1 Louisiana Inc Cir 9 28 01 809 1055 While an Only court Houma Avionics So 2d 1040 App allowing Highlands Underwriters exercised to of their Ammon and Associates Inc v La for prevent manifest injustice RB should the 5 the parties who have relied preparation reasons the trial court is vested with much discretion to amend its Although pre trial 96 1018 p 1631 The theories art surprise and allow orderly the pre trial order to The pre trial order controls the 1339 P trial and is a and to control the manner avoid to constitute sufficient case 1336 can procedure adherence require conducting justice is done LSA C C inherent in the pre trial disposition of or that they the great discretion of the trial trial order the trial denying the defendants were bound by the 9 court in court in this case allowing refused motion to amend and pre trial order to telling Yet the trial coUrt subsequently allowed the defendants whether accident an order that amended verdict fonn submitted injured in an occurrence of was the impossible Millican accident an failure s to a The trial court did issue of whether the Additionally Stobart s complete record La an the injuries making based recovery accident to be that argue of counsel statements opening established fact that a an Lam through Dept 1993 an failure or request s to it on to injuries s allowing the raised before the accident had an not publish jury and occurred to the jury accident occurred and refused error 11 29 06 reI Lam App of Transp on standard 1 Cir 9 28 05 legal no be set erroneous and to aside unless the clearly or Development error own de and Thus any appeal inasmuch of review as a Wright 924 So 2d 178 10 182 v finding if the record is novo State Farm Mut Auto Ins Co 135 wrong 617 So 2d interdicts the fact longer applies should make its 946 So 2d 133 be addressed first applicable v cannot manifestly standard court jury a However where appellate ex finding by finds that it is State La factual process the manifest the of occurrence the trial court denied Millican court v 882 must jury denied accident occurred to on closing arguments regarding this issue appellate La restrict defendants Normally 880 not an the pre trial order restrict whether the establish the of plaintiff s cause causal connection between the accident and Millican establish allowing question than the accident combined the issues of accident and the detennine to the first Further the jury which asked whether Millican to pther of jury the established fact of the pre trial happened despite accident had occurred an raise the issue before the to review of the 05 1139 p 3 alleged evidentiary finding of error Bennett errors may affect 04 1944 p 6 A legal law and such is court conoect 97 0541 American La 16 1 04 law can Ins p 11 error La does compared to to prejudicial 99 0354 p not A La case appellate Evans novo v North 735 02 2649 Corp 609 writ denied 03 2977 La State v a the record by applying the Reinsurance court interdict the fact does make finding Dept an error process de 482 of novo of Social Services 943 So 2d 471 its alleging App error This case writ denied Co 1 Cir 6 23 00 775 2d So has the burden of requires proof that the totality has Contracting 00 2232 La 11 13 00 In the other issues the 708 So 2d 731 2 6 98 Employers CRW the record in its 19 on finding of 05 06 944 So 2d 1289 error was L v La 857 So 2d 606 Furthermore the party case 7 1 Cir 9 106 App 2386 La 12 2106 of the pretermit to If however the trial review is not warranted 1044 Co 864 So 2d 633 but such it deprive render judgment 1 Cir 9 26 03 App s 97 0577 p Specialty they party of substantial rights causes to when prejudicial determining the essential material facts de law and Lungrin p 3 if it required errors are of law skews the fact finder error material issue of fact and applies incorrect principles of court a and outcome prejudicial a trial a prejudicial Legal errors are materially affect the When such when error occurs a substantial effect Inc Ram Indus v 762 So 2d 1223 on showing the when error the outcome Coatings Inc 1234 writ denied 438 sub judice the trial court ruled that the parties were bound by the language of the pre trial order and denied the motion to amend it Clearly this was not abuse of discretion trial court then an allowed the defendants contained in the pre trial order subsequent rulings by the trial to deviate from the throughout of the trial court court established facts the trial of this matter put the issue of the 11 However the occurrence The of the squarely before the jury and amounted accident Millican prejudicing record that and had a error believe that these we substantial effect On the assumption He structured the the by upon preparation and parties from early very establish this fact to been or s establish at trial a Although an occurrence fact that had the accident never closing arguments if an accident had 8 This became been deployed depositions happened to go forward an of his the accident case around accident occurred thirty it was was children or so not on of vehicle accident report an of the accident essence accident there Yet was no as allowed occurred and of counsel are not by the trial need for was court to required trial The became the of trial by part of the record and therefore not was the not result of the a already been established prior as were having already pre trial order Millican part of our determination Millican also notes in his closing argument to the jury the defendants counsel should have taken the process Reconstruction experts OCCUlTence defense of the defendants defense that 8 established fact In establish the to the testify as an prepared an wrote the motor rulings and deviation from the primary 7 to stipulated discovery court called to or In court Nor did he find it necessary to take the establish the fact of the accident deposed to trooper who 7 the entire finding in this matter on the school bus of the state was Because the fact that plaintiff to depose Womack deposition at case presentation necessary for the to looking rulings of the trial of the attorney s standing alone interdicted the fact outcome unduly error that he did not have to prove that already established fact agreed the day of trial Millican under the valid occurred on errors the legal court when cannot say we plaintiff was not prejudiced by other words this While each action of the trial have been harmless might to equivalent brief to this corui that in his reply was permitted to state that plaintiff ofthe school bus driver and its passengers to determine particularly important at trial since the officer to Iraq 12 was unavailable having ambush We conclude that the accumulation of the actions of the trial court resulted in manifest and injustice prejudice to the plaintiff The defendants argue however that the trial rulings because the implicit to in specifically reserved We agree that the defendants they did agree to the fact that argued that the parties had stipulated defendants not establish that the lllJunes was are defendants does not override this occurred should prejudicial fact of law record which Therefore record before us is complete we despite the The fact that an does it in any way This the accident assert that the pre trial we of fact This jury case as it a de by the argument an accident was clearly and interdicted the conclude that the trial judgment the fact upon the issue of whether this court to make the liability clearly established have been put before the vacate as Millican never boilerplate phrase relied Consequently requires we to in its Defendants contend that all issues of specific stipulation Accordingly process to as causation nor under the facts and circumstances of this finding error never liability The pre trial order contested is also without merit or The defendants further accident occurred and the an liability err stipulated never accident occurred to not contested all facts stipulated never causally related ambiguous in that it stated fact and law that as to equate were argument is without merit an did that Millican stated such repeated arguments accident occurred does order as determination of liability and the defendants a liability however pre trial order court novo of the trial court court made an review of the Because the will review the record and render judgment Evans 97 0541 97 0577 at p 7 708 So 2d at 735 Causation In causal a personal injury relationship suit the between the plaintiff bears the burden of proving a injury sustained and the accident which 13 caused the 579 So 2d 429 433 Inc La American Motorist Ins injury 1 App causation causal La Cir 2 9 07 by the accident and the plaintiff proved through not that the 06 0918 at pp was testified that he was on log truck school bus stopped for test must prove determining subsequent injuries caused more probable by the accident Breitenbach the date of the accident on and came to behind him a stop on Greenwell Thereafter the bus Springs pulled Road pull into The so began pulling and backed up his truck Millican stated that out of the driveway he that the bus saw tunled him around on out the admitted that it He testified that when he turned to police report low to on went to reverse collision his afternoon was The and he hit his head impact jerked the headlight assembly impact prepared Millican stated that he later Millican legs slammed together blinker and the was a was his the door and window Millican continued was Millican testified that when the bus hit his truck the the accident occuned and shoulder up the bus around to turn adjoining driveway an hit the left front of his vehicle knocking He up next to him look behind him and put the standard transmission of his truck in impact than his way to his afternoon job when he encountered the Millican said he would do when the bus the is whether opened the door and asked Millican if he would mind backing she could to were twenty six years old overturned going plaintiff 17 18 959 So 2d at 938 Millican so The testimony that it is medical subsequent injuries Stroud 06 0918 p 17 v 938 American Rent All v of the evidence The preponderance a Breitenbach 959 So 2d 926 relationship between the driver 1991 Co job However unable to the emergency His at pickup room at was Millican drivable and woodworking shop after because of the remain 14 the However truck pain work that complaining day a in his back Two days of pain in his neck back and left shoulder lengthy as result of the accident a of conservative course Millican testified he did which treatment undergo spinal not want to and because he What followed but faced with surgery loss of bladder and bowel pain control he ultimately underwent artificial disc replacement January 13 2005 9 suffer unsuccessful proved chronic began to Millican testified that complaints of back pain had never been had never been told he had a bad back Dr John Michael Burdine one testified pain management expert the MRI taken of Millican s to some prior an to and were such bending as orthopedist for his back and of Millican treating physicians and s spine on back up his truck and the front was pressure on extrude He testified that in patients less than concluded that given hit comers March 3 2003 the not surprised that conservative 9 to years of age history as 10 therapy when he turned backwards sheer force which are can putting cause trauma related provided by maximum it to tear Dr or sees Burdine Millican the accident was Dr Burdine was to Dr Burdine in June 2003 approximately to by Millican improvement annular since twisting tears are six months for FDA with Millican extremely approval s previous resistant for the surgery to as it the first of its kind in Louisiana Millican did was referral complaints ninety eight percent of tears that he there had been little Millican had to wait was s a s indicated Dr Burdine stated that doing of the disc ninety forty was creates the cause of the tears experienced Upon Millican findings a Dr Burdine testified that by deposition what Millican no IO lumbar consistent with these on surgery this accident he had annular tears at the L4 L5 and L5 S1 levels and that Millican of pain was a testify that he was treated by a chiropractor for injury when he orthopedist Dr F Allen a tailbone sixteen years old The medical history Millican gave to his 011 November 12 2002 indicated that Millican went to Dr Plantz Johnston when he was asymptomatic Within 16 y o after a fall that bruised his tailbone No further information regarding this incident is 15 a chiro few weeks he provided was in the record 11 As his treatment steroid shots in epidural an attempt he discontinued the series after usual on set of three September pressure were as some accurate test confirmed that the an 18 needle is determination right annular Dr Burdine tried 2003 placed in attempt an into the disc to seal the determine if the that there was tear referred Millican Thereafter pain and of Millican tears in the a pain s discs two an intradiscal IDET In the IDET wire is threaded a through heat is used to the try to Testifying that it takes approximately six months to procedure is successful long no s mend the tears needle that circles the disc next to the tear and or pain but s Millican had described it as electrothermoplasty procedure series of performed a discogram using dye get On November weld of Millican a injections rather than completing the to The a resolve initially tried the shots failed to alleviate Millican causing plaintiff s pain procedure to two 25 2003 Dr Burdine gauge perspective Dr Burdine treating physician term to Dr effect on high Dr Burdine Dr Burdine thereafter Millican Isaza for surgery Jorge ultimately concluded having exhausted all conservative treatment available Dr Jorge Olihopedic Isaza testified surgery He stated that he surgeons in the United States Administration FDA described the surgery technically medication Isaza II s successful to by deposition as was one artificial disc s of Millican was still in and he had not returned to any earlier treatment included only ten orthopedic the Food and replacement Drug He surgery that while the surgery performed and stated a lot of pain taking type of activity opinion that the accident started Millican Millican expert in the field of originally approved by perform It also included twenty four VAX D Family Clinic in Baton Rouge an s It a was lot of was symptoms based on Dr the pain medication injections and physical therapy stretching treatments with Dr Billy A May of the 16 history Millican year old would He stated that it gave to him injure his without spine Dr Charles Greeson Millican reviewed Millican neuroradiology Dr Greeson stated that by deposition motion could say to what which him spine accident did including not accident Dr was Joseph Joseph or wear the minor changes and tear spuning at s damage admitted the help Dr as a on of the Partington the to x Millican it a overwhelming The body that long was before the reasonable a state symptomatic to x ray films showed strengthen weak rays expert MRIs and osteophytes discs and which take years 17 It perform only telemarketer defendants s s that the in the field neuroradiology and diagnostic radiology also testified by deposition reviewed He Millican Joseph suggested opinion that Millican would be able Partington of vehicle and the fact that to the pushed Millican into Partington margins Based years however light type duty work such Curtis scan the L4 L5 and L5 S1 levels occur over medical on that Millican had disease in his back that the accident MRI s Joseph also identified disc desiccation and Dr with reviewed Millican transmit much energy into his probability Dr simply be conjecture Joseph revealed degenerative changes to Dr changes typically medical assumption Joseph not seek immediate Millican did sedentary Dr according bulging along stated that these Dr a disc it would twisting a in bone associated with bone was the trauma from although testifying Also scans Joseph testified by video deposition Defendants expert in the lower lumbar to rays and MRI degree the tears were caused by the accident March 2003 history expert in the field of radiology and to in tear the field of neurosurgery disc twenty six a for him cause a Dr Allen some that form of trauma some s s x was rare to or According bone spurs form to of Dr Dr which grow Thus Dr Partington was of the opinion that the could not have formed between the osteophytes October 28 2002 accident and November 12 2002 However Dr Partington November 12 2002 bulging According likely indicated more to as showed its causation Dr at with Pmiington it The but found to cause medical enough Dr was not were presented established accident After a more s an for Partington trauma s to the related get worse According to Dr significant motor and injure the back However the evidence also shows that any back evidence aggravated of that issue herein The complaints prior to the determine that Millican proved asymptomatic until the accident were that it is stress to on testimony indicates that Millican had preexisting degenerative disc disease problems evidence no generally takes significant damage Millican desiccation It However he could not say that the herniations did not the accident vehicle going disc Partington had no but Dr both levels opinion that the osteophytes and disc and 2002 further testified that the MRIs Partington significant disc desiccation accident bulging ray narrowing and chronic process that had been a x Partington the osteophytes and to Dr The films showed the chronic disc years the although unlikely of the disc could have occurred between October 28 bulging idea stated that the date of the no history review of the evidence probable of back we than not that the asymptomatic preexisting back at 2002 accident October 28 condition which resulted in disability Damages Having established that Millican injuries make a were causally related determination circumstances herein as to to met his burden of the accident herein it is damages The types of that are now that his necessary to appropriate under the damages awarded in 18 proving a personal injury action consist in speculative mathematical impairment S Inc of fashion as and suffering 1935 pp are La A C and La Furthermore takes his victim the 10 7 state 1 App denied 02 2940 La probable McGee 579 So 2d at 433 Where 7 2 03 a finding as 17 10 00 preexisting injury a Reck in at the time must make a as near a immediately assessing quantum for pain So 2d v Ostrowe 01 1212 1224 writ jurisprudence that or condition he aggravation 2d So de the case novo The defendant a negligent s compensate the must American Motorist Ins 498 an court 502 La 1979 issue because of of Co earlier vacating the in appeal an determination of the undecided issues reviewing court must make an award that damages revealed by the record where the jury has damages 770 So 2d 766 was primary responsible for all natural and fact finder does not reach award for Millican tenth injured party in 828 our Stevens 373 v of the record to ascertain a was he finds him and is and fair for the no she it is well settled in from the facts in the record made or the The 836 So 2d 107 finding which disposes of the just he Cir 9 27 02 victim for the full extent of his is to restore 774 v consequences of his tortious conduct Where defendant action aggravates earlier 933 So 2d 770 06 the severity and duration thereof Turner 15 16 any physical Factors to be considered in preceding injury being fixed with are and loss of enjoyment of life 3 4 to damages suffering general damages is possible of incapable General They include pain and disability pp special damages thus certainty and of and nature 05 1036 objective and general LeBlanc 771 72 Thus Stevenson v we 00 0157 must conduct a de p novo 6 La review damages twenty six years old on the date of the accident grade education but thereafter obtained his GED 19 He had At trial he testified a regarding his work history which consisted primarily of working cook At Macaroni Grill he moving and lifting of heavy saute accident he lived was made on his undergo to in own surgery saute chef which was a 12 pans an required Millican testified that he moved in with his mother intense but that he is still in constant minor activities such also has trouble as pain and is he tries to do as cooking washing much on as pain is less pain he is limited to possible dishes and grocery shopping He sit for long to of time and is in fear of what the future holds for him periods the she could medication for the Millican stated that he is unable sleeping to prior so He stated that since the surgery his although lot of a apartment However when the decision help him with his recovery He testified that as especially his treatment for work future Dr Millican Isaza testified that every opinion that in order to avoid attempted was surgery became necessary would have been Millican approved artificial disc which is that caused disc replacement recovery with disc to s replacement by a surgery lesion in as was conservative spinal but it surgery Previously fusion of the surgery for those with a disc opposed to was two 2004 only option but in November greater mobility replacement driver possible his discs the FDA discogenic pain Dr Isaza testified that artificial a disc fusion At the time of Millican allows for s surgery through the stomach and required the use of a faster artificial a piling put the artificial replacement discs in place Dr Isaza testified that it would take more than a year for Millican to reach his maximum medical improvement including decreasing his pain medication and that he was still disabled 12 Millican testified that he had been working for Macaroni Grill for when he moved to Alabama to work with his father after a year and had been occlUTed working a year and a half He testified that he moved back for Macaroni Grill for two months when the accident 20 of the Considering all doctors Millican s own a that the relative we are of the of the amount 06 2092 introduced 11 p La 4 11 07 144 533 85 for his medical treatment With testified at trial of the a loss of s s highest wages three and the date of trial 13 on totaling for the years 1998 the award that amount a through 2002 13 Dr Jones loss of past wages in the for the year before his amount by simply using injury 13 993 and 14 however that because in 2001 Millican earned in 2000 According following the last full year Millican earned wages in the amount of 8 930 amount should have been used rather than the to his tax returns 13 993 in 2000 and 14 expenses past and future wages Lamar Jones Ph D before the date of the accident amount Millican the surgery we v the number of years between the date of the accident Defendants argue the Kaiser expert economist Dr Jones testified that he tax retmTIS s incuned and such 810 Dr Jones testified that he reached this amount multiplying by 8 930 So 2d 802 including opinion that Millican suffered of 42 203 Millican 953 not contradicted Millican as reviewed Millican was to regard was case be determined with may expenses and lost wages documentary evidence that he accident This amount of the in this market value ready a damages theoretically certainty including medical Hardin opinion that the record those which have are extent 225 000 general damage award of Special damages including the testimony of the testimony the type of surgery and the surgery at two disc levels supports evidence While Dr Jones did Millican earned not 13 993 concede that the 10 253 in 1998 3 321 in 1999 8 930 in 2001 10 25 per hour which was Millican s rate of pay the date ofthe accident Dr Jones also offered the amOlmt of 64 310 or 21 320 per Based on a forty hour work week at year for the three years as an alternative amount for past lost wages 21 8930 should have been used amount infonnation given told the accident to was him regarding the suggested averaging the s After the 34 384 50 in With regard Millican had not to the error was prior as initially was the last full year of out to Dr Jones pointed Accordingly and 50 461 11 past lost wages for the three year period Millican s future employment Dr Isaza testified that MMI yet reached maximum medical improvement following his surgery stating that would take approximately one Millican reaches MMI he will average we the accident to in the error date of the accident he We agree two years wages for the two years award Millican recognized in 2001 and therefore used 2000 employment by Millican Millican he necessary to reduce Millican medications pain s Once Isaza testified that it would then be Dr status year opinion that Millican would be limited light to Dr Isaza or was of the sedentary jobs in the future Stephanie Chalfin the vocational rehabilitation specialist testified trial It a light was or her sedentary job experiences not opinion that Millican while disabled will be employable as work status described IS Furthermore he reaches MMI ever be able to return to to disabled from four months year to a be before opportunity to reach his workers have gaps in employment and Chalfin testified that when Millican and ten dollars an She did primary job as a wean job placement Additionally off of his medications Chalfin further testified that because of Millican 15 past employable including training for the Chalfin testified that Millican needed to had the his status s at Chalfin believed that Millican will need vocational rehabilitation assistance in order not Millican status her exceeded medium work to believe that Millican would cook once at was s earning potential an 22 Typically unsteady work history working hour young age he had as a young Therefore chef he earned between nine tax returns future of however was classified as a that Millican had was twenty six younger worker diminished a address what that person always Because Millican will be earnings accident he younger worker do not a It was at s the time of the Chalfin opinion s because of this earning capacity accident In future computing lost remaining work life expectancy for took l 1illican it s highest lost wages Then minimum wage job Dr leaving Dr Jones made an a 13 993 a forty forty hour alternative computation using the making was rather than minimum wage present value of a forty hour per week job future lost wages job at Macaroni Defendants did Grill at call not or Thereafter on the date Dr Jones testified that the net 10 25 per hour for at a an economist to 4 28 years forty hour the difference resulted in 234 057 job by 10 25 per hour amount Deducting what Millican would make week minimum wage per week hour per week minimum wage of the accident 476 484 multiplied 317 971 in future 83 914 in future lost wages difference of of He then age Jones reduced the amount of future lost wages the amount per hour that Millican was a years 6 s present value of net a 4 28 used of Millican someone assuming that Millican could work what Millican would make at 234 057 Jones wage year before the accident of and detennined 4 28 years by Dr wages per 250 419 in contradict this testimony Based on earning history wages is 16 the record before we us including Millican determine that the amount expectancy tables in detennining Millican 23 s Department work life employment and 83 914 in future lost reasonably supported by the record and we award Dr Jones testified that he used the United States life of s that amount ofLabor statistical work expectancy CONCLUSION F or the court After reasons a de set novo forth herein review we we the general damages amount wages and of plaintiff in the amount of Daniel E in the amount of Rouge Parish School Board Virginia B Company VACATED AND RENDERED 24 of the trial Further 483 2 30 Millican we render against Womack and and special damages 34 384 50 in 144 533 85 for medical expenses costs judgment 225 000 and 83 914 for future lost wages assessing appeal the hereby render judgment against the named defendants and in favor of the award vacate in past lost judgment the East Baton Coregis Insurance
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