Angela Cotton, Andy Cotton and Blaine Cotton VS State Farm Mutual Automobile Insurance Company, Kerry Carter, Government Employee's Insurance Company and State of Louisiana Through the Department of Transportation & Development
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 1609 ANGELA COTTON ANDY COTTON AND BLAINE COTTON TI11IIX380 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY KERRY A CARTER GOVERNMENT EMPLOYEE INSURANCE COMPANY S AND STATE OF LOUISIANA THROUGH THE DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT Judgment Rendered MAY 0 6 2011 Appealed from the Thirty Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana Docket Number 151 003 Honorable Timothy C Ellender Judge E James Gaidry Jr Counsel for Houma LA PlaintiffsAppellees Angela Cotton Andy Cotton and Blaine Cotton Joseph F d III Aquin Counsel for Metairie LA Cross ClaimantAppellee Government Employees Insurance Company James D Buddy Caldwell Attorney General Counsel for William S Culver Jr Assistant Attorney General New Orleans LA DefendantAppellant Louisiana Department of Transportation and Development BEFORE PARRO GUIDRY AND HUGHES JJ a 7 0 c a GUIDRY J The State of Louisiana through the Department of Transportation and Development the DOTD appeals a judgment rendered pursuant to a jury verdict finding it liable for a car accident allegedly caused by a malfunctioning traffic signal at an intersection FACTS AND PROCEDURAL HISTORY On Christmas Eve 2006 Angela Cotton and her stepson Blaine Cotton were traveling south on Highway 661 in Houma Louisiana to attend midnight mass On reaching the intersection of Highway 661 and Highway 24 Mrs Cotton stopped for the red light According to Mrs Cotton and her stepson when the light on the traffic signal turned green she proceeded to enter the intersection where her vehicle was struck by a vehicle driven by Kerry A Carter who was traveling east on Highway 24 Mr Carter reported that the traffic signal governing his path of travel also displayed a green light at the time he drove into the intersection and collided with Mrs Cotton vehicle s On April 5 2007 Blaine Mrs Cotton and her husband Andy Cotton jointly filed a petition for damages against the DOTD and the case was tried before a jury that found the DOTD to be 100 percent at fault for causing the December 24 2006 accident The jury awarded Mrs Cotton 351 and 00 973 Blaine 3 in general and special damages The jury further awarded Mr 93 204 Cotton 20 for past and future loss of consortium The trial court signed a 000 judgment in conformity with the jury verdict on January 20 2010 which the s DOTD suspensively appeals I The plaintiffs also named their UM insurer Government Employees Insurance Company GEICO Mr Carter and Mr Carter liability insurer State Farm Mutual Automobile s Insurance Company as additional defendants in the petition GEICO filed a cross claim against the other named defendants seeking to recover amounts it expended on property damage and rental reimbursement for its insured as well as to recover the deductible and rental expenses incurred by its insured The plaintiffs later settled with GEICO and dismissed their claims against it prior to trial The plaintiffs also dismissed their claims against Mr Carter and State Farm with full prejudice 2 ISSUES PRESENTED FOR REVIEW The DOTD suspensively appealed the January 20 2010 judgment alleging the following 1 The jury erred in finding that there was a defect in the traffic signal at the intersection of Highway 661 and Highway 24 that caused the traffic signal to display green lights to both Mrs Cotton and Mr Carter simultaneously 2 The jury erred in finding that the DOTD had actual or constructive notice of the alleged defect in the traffic signal prior to the accident The jury erred in finding that Mrs Cotton neck and right shoulder s injuries and related medical treatment were proximately caused by the 3 December 24 2006 accident 4 The jury erred in awarding Mrs Cotton damages based on a finding that she is partially disabled 5 The jury erred in awarding Mrs Cotton past and future loss of wages and loss of earning capacity DISCUSSION ISSUES ONE AND TWO Generally in order to recover damages against the DOTD a public entity a plaintiff must prove 1 the DOTD had custody of the thing that caused plaintiffs damages 2 the thing was defective because it had a condition that created an unreasonable risk of harm 3 the DOTD had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time and 4 the defect was a causeinfact of plaintiffs injuries See La R 9 La C arts S 2800 7 231 and 2317 Netecke v State DOTD 981182 p 7 La 10 747 So 1 99 19 2d 489 494 The trier of fact findings regarding defect and notice under La R s S 2800 9 are subject to the manifest error standard of review See Ricks v City of Shreveport 42 p 8 La App 2d Cir 10 968 So 2d 863 868 675 07 24 The DOTD does not dispute that it had custody of the traffic signal at issue however it greatly disputes the assertion that the traffic signal was defective or that it had actual or constructive notice of any allegedly defective condition in the 3 traffic signal Our review of the record reveals that there was sufficient evidence presented to support the jury findings on these issues s The DOTD argues that none of the witnesses who testified that the traffic signal displayed green for opposing lanes of travel actually saw the simultaneous display of green However the police officers who investigated the December 24 2006 accident verified the claims of the accident victims that the traffic signal was displaying conflicting green lights At trial the investigating police officers Jarrod Matherne and Joseph Renfro testified that they sat in their individual police cars at right angles to the intersection to observe the traffic signal from southbound Highway 661 and eastbound Highway 24 respectively While so positioned the officers testified that they both reported the traffic signal to display green at the same time for their observed direction about every fourth light phase They testified that they observed the traffic signal display simultaneous green lights at least four times on the night of the accident which testimony supported the claims of Mrs Cotton Blaine and Mr Carter that the signal was displaying green for their respective directions of travel at the time the accident occurred The plaintiffs also presented the testimony of an expert witness in the field of traffic signal engineering Dr Peter Parsonson who posited two reasons why the signal was defective and malfunctioned on the date of the accident First Dr Parsonson explained that according to industry and manufacturer standards the conflict monitor controlling a traffic signal should be removed and fully tested bench tested to ensure that it is operating properly Dr Parsonson described a typical traffic signal as being in a solid state assembly meaning that it has no moving parts with semi conductor components inside that are supposed to conduct electricity at certain times and not conduct electricity at other times 2 Although the trial transcript shows Dr Parsonson name spelled as Parsonsons other s documents that appear in the record including Dr Parsonson curriculum vitae indicate that the s correct spelling of his name is without and s at the end 4 However he explained a semi conductor can fail by shorting through which means that it is going to conduct when it is not supposed to be conducting electricity Dr Parsonson testified that since 1968 every single traffic signal installed at an intersection is required to have a conflict monitor installed in a cabinet positioned on the street corner According to Dr Parsonson the purpose of the conflict monitor is to monitor the voltages that are sent out from the cabinet over field wires to overhead signals The conflict monitor contains a program card that identifies which signals are compatible such as displaying a green light for eastbound traffic would be compatible with displaying a green light for westbound traffic In further explaining how a conflict monitor functions Dr Parsonson stated t 1 sits there and it watches the voltages that go out over the field wires to the signal heads and if it sees one hundred twenty 120 volts going out to two 2 greens that are in conflict with one another it allows that conflict to take place for as long as one half 1 second 2 In other words the conflicting greens will in fact be shown but for no more than onehalf 1 second And we know that drivers cannot 2 react within a half second and so it is safe But the monitor is giving the equipment a half second to recover and to work correctly But if that conflict is still being shown to the drivers at that onehalf 1 2 second the conflict monitor forces the intersection to go to flashing operations In his expert opinion and according to articles and books he had reviewed Dr Parsonson stated that at a minimum the conflict monitor should have been bench tested once a year however according to the DOTD the conflict monitor had never been bench tested Dr Parsonson stated that in Gwinnett County Georgia where he lived it is discovered that occasionally a conflict monitor fails on testing although the traffic signal appeared to be cycling normally out in the field Dr Parsonson therefore stated what this teaches us is that we cannot assume that if the monitor fails we can count on it to throw the intersection on flash That just not true at all Dr Parsonson also criticized the actions of the s Z traffic signal technicians for those occasions when they would simply turn off the power to the equipment and then turn the power back on to correct the traffic signal He said such actions are not fixing anything He explained that what it may be doing with solid state equipment is to allow a failing component to cool off enough to start working properly again for a while The second reason Dr Parsonson gave for finding the traffic signal to be defective relates to the construction of the traffic signal He stated that because of the construction of the signal rain falling at the time of the accident likely entered the traffic signal and caused it to display conflicting green lights According to his testimony If in fact there were conflicting greens as five S witnesses are saying there were then more likely than not very probably certainly with a great degree of engineering probability and certainty I can say that the conflicting green situation was caused by rainwater he T rainwater entered the entering the wiring at some point wiring and because water conducts electricity the water causes a shortcircuit from an energized signal wire one that had one hundred twenty 120 volts in it A short circuit over to a wire that provides the green signal but was not supposed to be receiving one hundred twenty 120 volts at this time And so the rainwater was creating a short circuit that turned on an undesired and inappropriate green signal that created this crash caused the crash Now what happens is that short is hot And if you have ever felt a short circuit go across your fingers you know it is pretty hot And what it does is it causes the water to evaporate And so that short dries out and there is no longer a short In other words the continuity in the water is broken The short is stopped And the conflicting greens stop And so for a period of time there is no conflict But then during that period of time new rainwater can come into that area and when enough of it builds up then the short occurs again and we have that green coming on inappropriately for a certain period of time And this is exactly what the police officers testified to in other words they testified that they witnessed conflicting greens in about one 1 cycle out of every four 4 And so this intermittent conflict is easy to explain If it occurred during rain and we know from the police report that it was raining at the time So this intermittent conflict is easy to explain on the basis of water entering the wiring system and creating a short short dries up from the heat that is generated by it And then the And you go through a period with no conflicting greens But then new rainwater comes in and creates the cycle all over again And so for as long as it no conflict conflict no rains we have this cycle of conflict conflict R Dr Parsonson then went on to explain that he believed that rainwater entered the traffic signal via the quick disconnect hanger used to attach the signal to the span of field wire from which the traffic signal is suspended He stated that use of quick disconnect hangers is a good practice in Louisiana because of the occurrence of hurricanes Nevertheless he opined that the DOTD could have easily discovered and fixed the problem of water entering the signal via the quick disconnect hanger In addition to the testimony of the plaintiff expert the DOTD expert in s s traffic engineering traffic control accident reconstruction and highway design construction and maintenance Mr Vernon Odean Tekell admitted that water could enter the wiring system and cause a short as Dr Parsonson described However Mr Tekell opined that the short would cause the red and yellow lights to shine faintly at the same time as the green shone brightly rather than causing conflicting green lights to display unless the wire was insulated and it was rubbed off of the green wire on the adjacent head and such that when the water intrusion caused the small voltage to come through that is the only way you can get quote these lights to go out at the same time In considering expert testimony the trier of fact may accept or reject in whole or in part the opinion expressed by an expert The effect and weight to be given expert testimony is within the broad discretion of the trier of fact The trier of fact may accept or reject any expert view even to the point of substituting its s own common sense and judgment for that of an expert witness where in the trier of fact opinion such substitution appears warranted by the evidence as a whole s Morgan v State Farm hire and Casualty Company Inc 07 0334 pp 8 9 La App 1st Cir 11 978 So 2d 941 946 The law is well settled that where the 07 2 testimony of expert witnesses differs the trier of fact has great even vast VA discretion in determining the credibility of the evidence and a finding of fact in this regard will not be overturned unless clearly wrong Harper v Falrig Offshore Inc 03 28 p 3 La App 3d Cir 4 845 So 589 591 writ denied 03 03 30 2d 1905 La 10 857 So 2d 483 03 31 Considering the foregoing testimony the jury could have found the evidence was sufficient to prove that the traffic signal at issue was defective Both experts testified that the display of conflicting green lights could occur and the fact witnesses presented by the plaintiffs all testified that such a happening did in fact Therefore we find the jury was not clearly wrong in finding the traffic occur signal to be defective Still the DOM contends that even accepting the finding that the traffic signal was defective the plaintiffs failed to establish that it had actual or constructive notice that a defect existed in the traffic signal that would allow it to display conflicting green lights All of the local witnesses that were familiar with the intersection including the plaintiffs and the investigating police officers testified that prior to the accident they had never observed the traffic signal display conflicting green lights nor could anyone state that such a phenomenon had been observed since the accident Nevertheless the plaintiffs presented evidence that the DOM did not perform any specificallyscheduled or regular preventive maintenance of the traffic signal nor did it keep sufficiently detailed repair records regarding the traffic signal to verify that such an occurrence had not previously occurred Travis P Cortez whose responsibilities included supervising crews in charge of signal light sign and facility maintenance for the DOTD testified that the traffic signal crew in charge of maintenance for the parishes of Terrebonne and Lafourche was made up of only two people Consequently he testified that he was unable to provide a schedule for the performance of regular preventative 3 maintenance of the traffic signals in the area but he could only direct the crew to work on specific problems as they arose As previously stated Dr Parsonson testified that industry and manufacturer standards for conflict monitors recommend that the monitors be removed and tested on at least an annual basis The DOTD admits that such testing was never performed on the conflict monitor that controlled the traffic signal at issue Thus Dr Parsonson opined that the DOTD failure to test the conflict monitor resulted s in the agency not discovering that the conflict monitor was defective Dr Parsonson also testified that whenever the conflict monitor sets the traffic signal at an intersection to flashing the reason why the traffic signal was set to flash is displayed on the conflict monitor LCD screen s He observed that for multiple work orders that he reviewed the traffic signal technicians failed to document why the traffic signal was set to flash As a result it is unknown whether the reason the traffic signal went to flash on those prior occasions was because of a simple power surge or because the signal was displaying conflicting green lights He further observed that the conflict monitor was never removed for bench testing despite the frequent number of times the work orders showed that the traffic signal was displaying flashing lights Dr Parsonson opined that the DOTD improperly relied on the conflict monitor to set the traffic signal to flashing and such reliance is misguided because the monitor could fail The plaintiffs position is that the conflict monitor failed at the time of the accident rather than going into flash and in the exercise of reasonable care if the DOTD had tested the conflict monitor it would have revealed the monitor was defective and deteriorating to the point that it could no longer perfectly function Mr Cortez admitted that the multiple work orders showing that the signal had been set to flash did make him think that maybe something was going on with this light at this intersection As he stated in this case I am sure I told the Z traffic signal crew we need to check it out We probably have a short somewhere that it kicked into flash and this specific incident I am sure it was when it rained we had water causing the problem Based on this evidence the jury could have reasonably concluded that the numerous work orders completed for the traffic signal at issue provided the DOTD with notice that the traffic signal was defective and that something more than simple repair was necessary to prevent further malfunctioning of the traffic signal at issue See Barthel v State Department of Transportation and Development 04 1619 pp 5 7 La App 1st Cir 6 917 So 2d 15 1920 see also Warden v 05 10 Richoux 09794 pp 7 1 La App 5th Cir 3 40 So 3d 139 145 47 writ 0 10 23 denied 100921 La 6 38 So 3d 340 Further the jury could have found 10 25 that the exercise of reasonable care required the removal and testing of the conflict monitor to reveal the defect As such we cannot say the jury was manifestly erroneous in determining that the DOTD had notice of the defect Accordingly we reject the argument presented in DOTD second issue for review s ISSUES THREE AND FOUR Prior to the December 24 2006 accident a colectomy surgery was performed on Mrs Cotton in September 2006 to remove an extensive portion of her colon As a result of the surgery Mrs Cotton developed a condition called scapular winging for which she was being treated at the time of the December 24 2006 accident Although many of Mrs Cotton complaints of pain in her right s arm shoulder and neck following the December 24 2006 accident appear to be identical to her complaints of pain in her right arm shoulder and neck prior to the 3 Scapular winging is described as a condition where the back muscle is weakened so that the scapula or the back part of the shoulder pulls off the back so that it looks like there is a wing on the back It usually comes from a muscle that has been paralyzed but over time the muscle re awakens and the condition repairs itself According to Dr Brett Casey an orthopedist Mrs Cotton likely developed the condition as the result of being positioned on the operating table during her colectomy surgery in such a way that it placed pressure on a nerve that is in the axial under the arm 10 accident which her healthcare providers related to the scapular winging the record discloses that there was objective medical evidence presented to show that the December 24 2006 accident caused additional injury to Mrs Cotton Dr Brett Casey Mrs Cotton treating orthopedist first examined her s relative to the accident on March 26 2008 although he had previously examined her regarding her scapular winging on December 7 2006 prior to the auto accident According to the medical history Dr Casey recorded Mrs Cotton reported that after the accident she had some weakness and pain in her right shoulder that was in a different location than she had before with the scapular winging On examination Dr Casey observed that she had pain in her a joint c which is the joint where the clavicle or collar bone meets the shoulder He further noted that Mrs Cotton had pain moving her arm and some signs of impingement which is injury to the rotator cuff Based on her presentation Dr Casey performed shoulder arthroscopy with an arthroscopic rotator cuff repair a distal clavicle resection and a sub chromium decompression which treated the impingement Dr Casey opined that based on Mrs Cotton history he related the rotator cuff s repair surgery to the December 24 2006 accident as he found that she did not have any rotator cuff symptoms when he examined her prior to the accident on December 7 2006 Likewise Dr Phillip McAllister the neurosurgeon who operated on Mrs s Cotton neck following the December 24 2006 accident testified that diagnostic tests of Mrs Cotton cervical spine showed visible changes in Mrs Cotton s s condition following the accident The first time Dr McAllister saw Mrs Cotton was in January 2007 In treating Mrs Cotton Dr McAllister reviewed an EMG scan that had been performed in November 2006 and compared that scan to the scan he had ordered in January 2007 In comparing the scans it was observed that the post accident scan showed a right C6 radiculopathy that had developed since the November 2006 scan Dr McAllister explained that radiculopathy means that there has been some trauma or pathology of the nerve root in the spine Thus the term radiculopathy not only tells us that there has been a change for the worse in the nerve root but that it also localizes it to the spinal Level Dr McAllister also had a myelogram performed to show Mrs Cotton s nerve roots and that test revealed that there was bi lateral spondylolysis at C 6 without evidence of spondylolisthesis As Dr McAllister explained What that means is that spondylolisthesis is that the bones have shifted in alignment But what had occurred through hyperflexion and hyperextension and acceleration and deceleration force to the neck is the ligaments of the neck and the muscles are incredibly strong So there has been a fracture that occurred There has been a fracture which occurred bi laterally at C6 right here which showed that the excessive force of the ligaments had been so great that they had caused a fracture in the neck Fortunately the disc and the ligaments surrounding the disc had held so fortunately there was not spinal cord injury as you would see in the more severe injuries However the CAT Scan showed from bony detail that there had been enough force transmitted through the muscles and ligaments of the back or posterior aspect of the cervical spine and indeed fracture bone Based on what he observed Dr McAllister performed an anterior cervical discectomy and fusion surgery on Mrs Cotton Accordingly the foregoing evidence supports the jury finding that the s injuries to Mrs Cotton neck and right shoulder and related medical treatment s were proximately related to the December 24 2006 automobile accident Encompassed within the damages awarded to Mrs Cotton is the sum of 00 500 13 allocated specifically for Mrs Cotton past and future disability The s DOTD asserts that the jury erred in awarding Mrs Cotton damages for past and future disability For purposes of a general tort claim disability damages are recognized as those general damages constituting any permanent disability or impairment that is secondary to the injuries sustained in the accident Brossett v Howard 08 535 p 19 La App 3d Cir 1210 998 So 2d 916 931 writ 08 denied 09 0077 La 3 3 So 3d 492 see also Matos v Clarendon National 09 6 12 Insurance Company 00 2814 p I1 La App 1 Cir 2 808 So 2d 841 02 15 As a result of the anterior cervical discectomy and fusion surgery Dr McAllister stated that the restrictions Mrs Cotton would have would primarily be from residual pain from any ligament tendon or muscle injury however he noted the fusion could cause some limitation in range of motion and some increased arthritic changes at the cervical levels above and below the area fused Physical therapist Donald Paul Kinnard performed a functional capacity evaluation FCE on Mrs Cotton in June 2008 which indicated that the range of motion for Mrs Cotton right shoulder on flexion and abduction was 170 out of a s possible 180 external rotation was 80 out of a possible 90 and internal rotation was 75 out of a possible 90 The strength level of Mrs Cotton right shoulder s showed a flexion and abduction of 4 out of a possible 5 external and internal rotation of a 4 out of possible 5 while elbow flexion and extension was a perfect 5 out of a possible 5 Based on the FCE Mr Kinnard determined that Mrs Cotton is capable of performing work duties of a light physical demand level requiring lifting of no more than 15 pounds on a frequent basis At trial Andy Cotton testified that his wife was just 75 back to normal He stated that the limitation on her sweeping mopping and dusting lasted for about a year to a year and a half and that there was a decrease in marital intimacy for four to five months after the accident because of Mrs Cotton neck injury s Mrs Cotton testified that it took nine months before she could completely lift her hand overhead following the shoulder surgery As of the date of trial she testified that her neck was pretty good although she felt it every now and then however for her shoulder she stated that she has a lot of weakness in her hands shoulders just muscle strength She admitted that she is still able to engage in 13 many of the activities she did before the accident but she just is unable to engage in such activities for as long as she could before Nevertheless according to Dr Casey medical records by October 2008 s he found that there was full range of motion in Mrs Cotton shoulder and her s strength was good although she still suffered with some aching pain In a medical note dated three months later in January 2009 Dr Casey reported Ms Cotton returns for continued evaluation of her right shoulder That is doing fine She has great range of motion and good strength without pain Considering this evidence we find merit in the DOTD assertion that the s jury erred in awarding Mrs Cotton damages for past and future disability While the evidence presented demonstrated that there have been some slight changes in Mrs Cotton physical endurance and lifestyle those changes are not of the scale s s that the changes could be deemed disabling Moreover none of Mrs Cotton healthcare providers assessed her with any rating of disability Cf Brossett 08 535 at 20 998 So 2d at 931 Matos 00 2814 at 11 808 So 2d at 849 Rizzuto v Walker 00876 p 4 La App 5th Cir 9 779 So 2d 759 76061 Thus 00 26 we hold that the jury erred in finding that the plaintiffs met their burden of proving that Mrs Cotton is entitled to an award for past and future disability ISSUE FIVE In the fifth issue presented for review the DOTI contends that the jury erred in awarding Mrs Cotton future loss of earnings and earning capacity According to the verdict form the jury awarded Mrs Cotton a lump sum for past and future loss of earnings and earning capacity in the amount of 33 The 00 770 DOTD and the plaintiffs presented the testimony of competing economic experts regarding Mrs Cotton wage losses The plaintiffs expert Dr Randolph Rice s testified that Mrs Cotton past loss of earnings from January 1 2007 through the s date of trial based on 10 an hour and a fortyhour work week would equal 14 00 027 63 Dr Rice then projected that Mrs Cotton future wage loss could s equal as little as 192 based on her work life expectancy and as much as 00 028 00 606 326 based on Mrs Cotton working to a retirement age of 66 years and ten months The DOTD expert Dr Kenneth Boudreaux calculated Mrs Cotton past s s lost wages by averaging her yearly income for 2004 2005 and 2006 and then alternatively using just the years 2004 and 2005 as the two years she had earned her highest income Using the three year average Dr Boudreaux determined that Mrs Cotton past wage loss from January 1 2007 through the date of trial was s 00 820 21 Using the twoyear figure for the same time period Dr Boudreaux calculated that Mrs Cotton past wage loss was 27 s 00 996 Because the FCE performed by Mr Kinnard showed that Mrs Cotton was capable of resuming employment earning income at the same rate she had prior to the accident Dr Boudreaux did not project any future loss of income for Mrs Cotton Based on the figures presented by the economic experts it appears that the jury did not award Mrs Cotton any damages for future loss of earnings or earning capacity The wage loss amount awarded is much less than any amount projected by Dr Rice Moreover although the amount awarded is greater that the highest sum calculated by Dr Boudreaux as Mrs Cotton past lost wages the sum is less s than the figure offered by Dr Rice Thus we find that the amount awarded should be properly considered as an award of past loss of earnings only A plaintiff seeking damages for past lost wages bears the burden of proving lost earnings as well as the duration of time missed from work due to the accident Bo ette v United Services Auto Association 001918 p 3 La 4 783 So 01 3 2d 1276 1279 The trier of fact has broad discretion in assessing awards for lost wages but there must be a factual basis in the record for the award Driscoll v Stucker 040589 p 29 La 1 893 So 2d 32 53 Where there is no basis 05 19 15 for a precise mathematical calculation of a past lost wage claim the trier of fact can award a reasonable amount of damages without abusing his discretion Burrell v Williams 05 1625 P 10 La App 1st Cir 6 So 2d 694 701 938 06 9 Apparently the jury found merit in both experts testimony as the amounts awarded Mrs Cotton for past loss of earnings appear to be a compromise of the two figures presented by the competing experts Where as here a conflict in the evidence exists and neither party presents evidence that is wholly inconsistent implausible on its face or unbelievable in light of objective evidence the appellate court must defer to the factfinder decision unless that decision is manifestly s erroneous or clearly wrong Henderson v Nissan Motor Co 606 p 14 La 2 869 So 2d 62 71 04 6 oration U 03 A S Having reviewed the evidence presented we cannot say that the amount awarded Mrs Cotton for past lost earnings was an abuse of the jury discretion Accordingly we reject this final s argument by the DOTD in the issues presented for review CONCLUSION For the foregoing reasons we amend the January 20 2010 judgment to delete the award for past and future disability In all other respects the judgment is affirmed All costs of this appeal in the amount of 7 are assessed to the 50 421 State of Louisiana through the Department of Transportation and Development AMENDED AND AS AMENDED AFFIRMED W
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