Jessi L. Boudwin, Brian J. Boudwin and Lee A. Thibodeaux VS General Insurance Company of America and Jacque G. Lasseigne, Individually and On Behalf of His Minor Child, Emily D. Lasseigne
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NQT DESIGNATED FOR PUBLICATION STATE OF LOUTSIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2011 CA 0270 JESSI L BOUDWIN BRIAN J BOUDWIN AND LEE A THIBODAUX VERSUS GENERAL INSURANCE COMPANY OF AMERICA AND JACQUE G LASSEIGNE INDIVIDUALLY AND ON BEHALF OF HIS MIN CH1LD R EMILY D LASSEIGNE Judgment Rendered September 14 201 Appealed from Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 568 292 Honorable Timothy E Kelley Judge Howard L Marcello Counsel for Houma LA f Appellants Plaintiffs Jessi L Boudwin and Lee A Thibodeaux Kenneth W Benson Ir Counsel for Baton Appellees Defendants Rouge LA General Insurance Company of America and Jacqu G Lasseigne individually and on behalf of his minor child Emily D Lasseigne I BEFORE WHIPPLE KUHN AND GUIDRY JJ GUIDRY J The appellants in this matter seek review of the adequacy of the jury award s of damages Finding no manifest error or abuse of the jury discretion we affirm s FACTS AND PROCEDURAL HISTORY On May 31 2008 on Highland Road in Baton Rouge Louisiana sixteen yearold Emily Lasseigne was driving from a friend house in her father 2003 s s Toyota RAV4 As Emily was traveling eastbound on Highland Road she entered the leftturn only lane to cross the westbound lanes of traffic to the westbound Interstate 10 entrance ramp The traffic signal at the intersection displayed green for both the east and west bound lanes of Highland Road Prior to making the left turn to cross the westbound lanes of Highland Road Emily observed a 2002 Honda Civic traveling westbound on Highland Road in the lefthand lane with its leftturn indicator flashing After observing the approaching Honda with the flashing left indicator Emily proceeded to turn left towards the westbound entrance of Interstate 10 however shortly after proceeding left Emily realized that the Honda had not slowed to make a left turn but continued to accelerate forward In an attempt to avoid a collision Emily accelerated the speed of her vehicle while the Honda simultaneously swerved to the right A collision of the two vehicles occurred when the front right bumper of the Honda struck the right rear bumper of the Toyota causing the Toyota to flip over and land upside down facing westbound near the entrance ramp of westbound Interstate 10 At the time of the accident the 2002 Honda Civic was operated by Jessi L Boudwin and contained three passengers Lee A Thibodaux Felicia M Chiasson and Shawn M Bergeron The vehicle was owned by Jessi parents s Marie and Brian Boudwin A month following the accident Lee A Thibodaux and Jessi and Brian Boudwin filed a petition for damages against Jacque G Lasseigne individually and on behalf of Emily and General Insurance Company W of America the Lassiegne liability insurer s The plaintiffs later amended their petition to assert an additional claim for penalties and attorney fees against General Insurance Company of America for failure to tender or make full payment of the property damage claim for the Honda Civic On June 30 2009 the plaintiffs filed a motion for partial summary judgment seeking judgment in their favor as to the issues of fault and causation The defendants did not oppose the motion and after considering the pleadings evidence and affidavit filed in conjunction with the motion the trial court rendered summary judgment in favor of the plaintiffs finding Emily Lasseigne to be the sole proximate and legal cause of the May 31 2008 accident in a judgment signed October 15 2009 The case proceeded to trial solely on the issue of damages on September 8 2010 Following a threeday trial the jury awarded Lee Thibodaux 25 in 000 general and special damages and Jessi Boudwin 50 Believing the amounts 000 awarded to be inadequate Jessi and Lee filed a combined motion for judgment notwithstanding the verdict JNOV or in the alternative for additur or a new trial 1 which was denied by the trial court This appeal followed ASSIGNMENTS OF ERROR The plaintiffs Jessi Boudwin and Lee Thibodeaux have appealed the judgment both contending the jury erred in failing to award them any damages for past and future mental pain and suffering physical disability or loss of enjoyment of life and future medical expenses They additionally object to the sum the jury awarded each of them for general damages as being an amount below that amount Although Jessi and Lee did not specifically assign as error the denial of their motion we note that a JNOV can be granted only when the trial court finds that reasonable minds could not reach a contrary verdict The trial court can make no credibility determinations nor draw inferences therefrom When a JNOV is denied the appellate court simply reviews the record to determine whether there is legal error or whether the trier of fact committed manifest error Petroleum Inc 961962 p 8 La App Ist Cir 12 705 So 2d 787 791 92 97 29 3 McCrea v that was reasonably within the jury discretion s DISCUSSION Past and Future Mental Pain and Suffering Pain and suffering both physical and mental refers to the pain discomfort inconvenience anguish and emotional trauma that accompanies an injury McGee v A C and S Inc 051036 p 5 La 7 933 So 2d 770 775 The factors to 06 10 be considered in assessing quantum of damages for pain and suffering are severity and duration Jenkins v State ex rel Department of Transportation and Development 06 1804 p 26 La App 1st Cir 8 993 So 749 767 writ 08 19 2d denied 08 2471 La 12 996 So 1 08 19 2d 133 The record before us is practically devoid of any evidence of mental pain and suffering At trial Jessi stated that she cried at the time of the accident And in response to the question what your greatest fear with this injury Lee replied s that it was that he would not be able to do anything that he would be really limited as to activities and playing sports Other than these isolated comments which do not demonstrate any true or significant emotional distress neither Jessi nor Lee offered any evidence of any mental pain or suffering Therefore we reject this assignment of error Loss of Enjoyment of Life Physical 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 12 998 So 2d 916 931 writ denied 090077 La 08 10 09 6 3 3 So 3d 492 see also Matos v Clarendon National Insurance Company 002814 p 11 La App 1st Cir 2 808 So 2d 841 848 49 Disability is 02 15 defined as t inability to perform some function or alternately as a he n objectively measurable condition of impairment physical or mental Bryan A 91 Garner Black Law Dictionary 9th ed 2009 Impairment is simply defined as s t he fact or state of being damaged weakened or diminished Similarly damages for loss of enjoyment of life refer to detrimental alterations of the person life or lifestyle or the person inability to participate in s s activities or pleasures of life that were formerly enjoyed prior to the injury Whether or not a plaintiff experiences a detrimental lifestyle change depends on both the nature and severity of the injury and the lifestyle of the plaintiff prior to the injury McGee 051036 at 5 933 So at 775 2d At trial both Jessi and Lee were specifically asked about how their lives had changed following the accident and both of them gave very similar responses Jessi who at the time of the accident had just graduated from high school testified that before the accident she studied all the time Following the accident she stated she still studied but it was painful She said the only thing she could not do following the accident was sit ups and study for long periods of time At the time of trial Jessi was a senior at Nicholls State University maintaining a 4 grade 0 point average Jessi was also questioned regarding some of her routine physical activities especially in regard to entries she made on her Facebook page She acknowledged that she runs or rather jogs regularly to stay in shape and even attempted to do an exercise program called P90X with a friend which she described as being really tough Moreover while Jessi treating orthopedist Dr Chrisopher Cenac s testified that he could easily give her a 10 percent whole body impairment for twolevel disc pathology in accordance with certain guidelines he indicated that he usually only assigns anatomical impairment to individuals who have lost something or had something removed Lee likewise testified that his lifestyle before and after the accident were pretty much the same He still participated in all the same activities and 5 maintained his military commitment including successfully completing physical aptitude tests required by the Army twice a year Still Lee testified that before the accident he always stayed active and played a lot of sports and following the accident while he continued to stay active it was not as much because 1 find that after activity that it a lot more pain than usual s On cross examination however Lee acknowledged several entries from his Facebook page where he reported frequently working out and also playing sports such as basketball tennis ultimate Frisbee and softball sometimes engaging in multiple sessions of sporting activities in a single day He further acknowledged that he wrote on his Facebook page that he had participated in a softball tournament in the month before trial which happened to be two days before his final visit with Dr Cenac When asked if he had informed Dr Cenac of any of injuries he had sustained while playing sports he stated that he told Dr Cenac that he stayed active but that he was not inclined to tell Dr Cenac that he was playing on softball teams Considering the testimony and medical evidence presented we cannot say that the jury was manifestly erroneous in refusing to award any damages for physical disability or loss of enjoyment of life The record clearly shows that neither Jessi nor Lee have experienced any significant limitations or impairments as a result of the injuries they sustained in the May 31 2008 accident Jessi and Lee both received separate awards for the pain they each suffered and continue to suffer See McGee 05 1036 at 47 933 So 2d at 774776 Accordingly we reject this assignment of error Future Medical Expenses 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 Menard v Lafayette C7 Insurance Company 091869 pp 1213 La 3 31 So 3d 996 1006 The 10 16 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 expenses will be medically necessary Menard 091869 at 13 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 Harvin v ANPAC Louisiana Insurance Company 06204 p 12 La App 5th Cir 1017 944 So 2d 648 06 655 writ denied 062729 La 1 948 So 2d 134 Credibility determinations 07 8 are for the trier of fact even as to the evaluation of expert testimony Green v K Mart Corporation 032495 p 5 La 5 874 So 2d 838 843 A trier of fact 04 25 may accept or reject in whole or in part the uncontradicted opinions expressed by an expert See Harris v State ex rel Department of Transportation and Development 071566 p 25 La App 1st Cir 11 997 So 2d 849 866 08 10 writ denied 082886 La 2 999 So 2d 785 09 6 In reviewing a jury factual conclusions with regard to special damages an s appellate court must satisfy a twostep process based on the record as a whole in order to modify or reverse the judgment there must be no reasonable factual basis for the jury conclusion and the finding must be clearly wrong See Menard 09 s 1869 at 14 31 So 3d at 1007 This test requires a reviewing court to do more than simply review the record for some evidence that supports or controverts the jury s findings The court must review the entire record to determine whether the jury s finding was clearly wrong or manifestly erroneous The issue to be resolved on review is not whether the jury was right or wrong but whether the jury fact s finding conclusion was a reasonable one Menard 091869 at 1415 31 So 3d at 1007 With these precepts in mind we will consider the evidence presented to the jury regarding the need for future medical care for Jessi and Lee 7 Approximately one week after the accident Jessi began treating with Dr Gregory Pizzolato a licensed chiropractor MRI scans of Jessi cervical spine s revealed the following findings two levels of disk bulging one to two millimeter at C5 6 and a one to two millimeter diffused bulge at C67 with impression on thecal sac and straightening of normal cervical lordosis Based on her persistent complaints of pain Dr Pizzolato prognosis for Jessi future s s medical care was treatment four to six times a year for flare ups Approximately seven months after the accident Jessi began seeing Dr Cenac at the recommendation of Dr Pizzolato A second MRI scan that Dr Cenac ordered of Jessi cervical spine in July 2009 revealed that Jessi condition s s had remained completely the same with no worsening Consequently following her last visit on October 29 2009 Dr Cenac gave the following final diagnosis This patient diagnosis is acute cervical injury causally related s to the incident in question The diagnosis is supported by reversal of the cervical lordosis along with the cervical disc bulging at CS and C6 which is quite unusual for a 19 year old female I feel that she will have chronic symptoms in the future I think that her symptoms will be aggravated by activities These subjective complaints of discomfort may be permanent She is not a surgical candidate More probable than not she should utilize over the counter medications on an as needed basis Considering the rather speculative nature of Dr Pizzolato prognosis of future s medical needs in conjunction with Dr Cenac testimony indicating that such flare s ups may be suitably addressed with over the counter medications on an asneeded basis we cannot say that the jury manifestly erred in not awarding Jessi future medical expenses As for the future medical needs of Lee the record reveals that roughly three weeks following the accident on June 20 2008 Lee began treating with Dr Pizzolato An MRI of Lee lumbar spine revealed bilateral facet arthropathy at the s L3 4 level with small effusion of the left facet joint spinal canal and neural foramen patent Dr Pizzolato explained that facet arthropathy means that the EI borders of the facet joint are roughened instead of having a clean gliding surface to facilitate normal movement in the spinal joints When asked for his prognosis regarding future care for Lee Dr Pizzolato replied it could be indefinitely without knowing the treatments exact outcome of the other potential invasive more he could treat with me for an indefinite amount of time as far as at a couple of times a year five times a year I kind of guessing but it looks m like it down to once a month which would be ten to twelve times a year s Dr Pizzolato also referred Lee to Dr Cenac who first examined Lee in February 2009 From that initial visit Dr Cenac found that Lee has an aggravation of a preexisting degenerative condition of the lumbosacral facets pronounced most at 4 L3 Dr Cenac recommended that Lee continue conservative treatment with Dr Pizzolato and take Naprosyn an anti inflammatory medication however Lee discontinued taking the medication against Dr Cenac s advice Dr Cenac was deposed about a month before trial He testified that he could not give a definitive prognosis of Lee condition because the most important part s his treatment program was getting ready to start During Lee final visit on s August 12 2010 Dr Cenac testified that he felt Lee was a candidate for a facet injection and gave him a prescription for the procedure He further stated that a definitive prognosis of Lee condition could be made based on whether Lee s received the facet injection and whether the injection provided him any relief Without the procedure Dr Cenac stated that Lee prognosis is somewhat s undetermined He testified that Lee is not a surgical candidate for any type of decompressive surgery but he may be a candidate for further invasive surgery GN depending on his response to the facet injections At trial Lee claimed he was concerned about the costs as the reason he did not have the facet injection performed but then revealed that he did not like the idea of having a foreign substance injected into his body and stated that he would rather try more than that before putting a foreign substance in his body No evidence regarding the costs of the procedure was offered at trial Based on this evidence we cannot say that the jury erred in concluding that Lee failed to demonstrate that it would be necessary and inevitable for him to incur future medical expenses While the option to seek the facet injections was clearly made available to Lee by his own admission it is equally evident that Lee prefers to seek more conservative treatment in the form of the chiropractic treatment provided to him See Boxie v Smith Ruffin 07264 p 14 La App 5th Cir 08 6 2 979 So 2d 539 549 Moreover even in regard to the chiropractic treatment received Dr Pizzolato testified that Lee only needed to seek treatment as needed and Lee himself testified that he usually needed such treatment when he was more active The jury was also aware of the nature and extent of Lee s activities whereas the record seems to indicate that his medical care providers may not have been Thus considering the evidence presented and the deference owed to the findings of the jury we decline to modify the judgment to award Lee future medical expenses General Damages In their final assignment of error Jessi and Lee contend that the jury abused its discretion by awarding them an inadequate sum in general damages Z Because Dr Cenac had just prescribed the facet injection five days prior to his deposition he expressed reluctance in being deposed regarding Lee future prognosis Yet prior to the August s 12 2010 visit the record reveals that Lee had missed or cancelled appointments with Dr Cenac and thus had not been seen by Dr Cenac since October 2009 Dr Cenac was deposed in lieu of having to appear at the trial scheduled the following month 10 When damages are insusceptible of precise measurement much discretion shall be left to the court for the reasonable assessment of these damages La C art 1999 see also La C art 2324 In reviewing a general damages award the 1 appellate court is not to decide what it considers to be the appropriate award but is to review the exercise of discretion by the trier of fact The discretion of the trier of fact is great even vast such that an appellate court should rarely disturb an award of general damages Youn v Maritime Overseas Corp 623 So 2d 1257 1260 1261 La 1993 cert denied 510 U 1114 114 S 1059 127 L S Ct 2d Ed 1994 379 The factors to be considered in assessing quantum of damages for pain and suffering are severity and duration Jenkins 061804 at 26 993 So 2d at 767 Appellate courts review the evidence in the light that most favorably supports the judgment to determine whether the trier of fact was clearly wrong in its conclusions Before an appellate court can disturb the quantum of an award the record must clearly reveal that the jury abused its discretion In order to make this determination the reviewing court looks first to the individual circumstances of the injured plaintiff Theriot v Allstate Insurance Company 625 So 2d 1337 340 1 La 1993 It is only when the award is in either direction beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award Youn 623 So 2d at 1261 The record reveals that Jessi initial complaints following the accident were s of headaches and pain in her neck and lower back Her lower back pain quickly resolved but her neck pain remained constant According to Dr Pizzolato initial s physical examination and xray scan Jessi had fixation at C4 5 C5 6 C6 7 and diminished motion between C2 3 and C34 Jessi received chiropractic treatment roughly twice weekly for the first year then roughly once a week for four months 11 and then two times a month for the following four months until the end of January 2010 After that Jessi did not receive any additional chiropractic treatment until one final treatment with Dr Pizzolato on April 30 2010 roughly four months prior to trial Following his initial examination Dr Cenac diagnosed Jessi with an acute soft tissue injury to the neck He found that she had no neurological deficits although he agreed that the MRI ordered by Dr Pizzolato revealed that she had cervical disc bulging at C5 6 and C67 but without any cord compression or nerve root impingement Jessi saw Dr Cenac for a total of seven visits and during that time Dr Cenac recommended a course of conservative outpatient treatment consisting of a home exercise regimen and administration of an anti inflammatory analgesic non narcotic pain medication At trial Jessi testified that her neck injury was still pretty bad She said her neck hurts when she studies for long periods of time or if she tries to move her neck too far to the side or up and down She also testified that she still jogs on a regular basis but since the accident she cannot do sit ups At the time of trial Jessi was a senior at Nicholls State University with a 4 grade point average The 0 jury awarded Jessi 33 for past and future pain and suffering 654 Following the accident Lee first sought medical treatment from Dr Pizzolato three weeks after the accident at which time he initially complained of pain in his neck and upper back Tests performed by Dr Pizzolato revealed normal reflexes with reduced or restricted ranges of motion in the neck pain in the neck and upper back on head compression leaning and rotation fixation of the cervical spine at C23 C67 T23 and T5 and spasms in the suboccipital and upper trapezious About two weeks later on July 14 2008 Lee other complaints s had abated but he then reported experiencing lower back pain which complaint continued unabated through the date of trial 12 As related previously Lee testified at trial that while he continues to stay active he is less active than he was in the past because it a lot more pain than s usual and my body was never like that before the accident He said that before the accident he could play sports like it was nothing and his body would feel little to no pain But after the accident he stated it hard for me to go for extended s periods of time just because if I standing or doing anything else that my back m will start to hurt a lot and it just t wasn like that before the accident However he also testified about regularly participating in several different sports sometimes engaging in multiple sporting activities in a day and refusing to take the non narcotic anti inflammatory pain medication prescribed for his pain On reviewing a November 2008 MRI scan of Lee lumbar spine that Dr s Pizzolato had ordered Dr Cenac found that Lee has posterior column facet arthropathy at L3 without carotid compression or nerve root impingement This 4 is somewhat unusual for a patient 23 years of age Dr Cenac further found that Lee had no negative motor sensory or reflex findings there was no atrophy and his motion was complete and normal Lee presented to Dr Cenac for a total of five visits on February 12 2009 March 27 2009 June 25 2009 October 14 2009 and August 12 2010 just prior to trial Lee was awarded 9 for past 00 681 and future pain and suffering The general damage awards to both Jessi and Lee appear to be on the low side especially considering the duration of their medical treatment however the jury may have had a different appreciation as to the severity of the injuries suffered Whereas both Jessi and Lee acknowledged that for the most part they were able to continue to engage in the same routine and activities as they did before the accident it appears that the jury was mindful that Jessi at least testified to having to adjust and modify her habits to accommodate the pain she suffered as a result of the injury she sustained in the accident She stated that she followed the 13 advice of medical care providers regarding doing home exercises adjusting her posture and elevating her books when studying and taking her prescribed medication On the other hand Lee apparently was viewed as suffering much less since he appeared to make no adjustments or modifications of his habits to address the pain he felt He declined to take his prescribed medication and missed scheduled medical appointments Moreover the jury may have viewed Lee as unduly aggravating his injury and pain symptoms by the extensiveness and intensity of his involvement in various sporting activities With this reasonable view of the evidence in mind we cannot say that the jury abused its much discretion in assessing general damages to Jessi and Lee CONCLUSION Having considered the evidence presented we find no error or abuse of the s jury discretion in the damage awards made by the jury Accordingly we affirm the judgment appealed All costs of this are cast to the appellants Jessi L Boudwin and Lee A Thibodaux AFFIRMED 14 JESSI L BOUDWIN BRIAN STATE OF LOUISIANA J BOUDWIN AND LEE A THIBODAUX COURT OF APPEAL VERSUS FIRST CIRCUIT GENERAL INSURANCE COMPANY OF AMERICA AND JACQUE G LASSEIGN INDIVIDUALLY AND ON BEHALF OF HIS MINOR CHILD EMILY D LASSEIGN NUMBER 2011 CA 0270 WHIPPLE J concurring I write separately to note that had I been sitting as the trier of fact I would have decided portions of this case differently in particular visdvis the quantum owed for the claims asserted by Jessi L Boudwin However given the credibility determinations that are reserved to the jury and the deference which we as a reviewing court are legally bound to give to such determinations I am unable to say the jury awards constitute an abuse of discretion on the limited medical s information in the record before us Accordingly I am constrained to concur in the legally correct result reached herein
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