Brandon Mason, Robert Hornsby, Carlos Moses, Reginald Jarvis, Individually and on behalf of Reginald Jarvis, Jr. and Reganiya Jarvis VS James Ray Hilton, Jr., WW Adcock, Inc., and Hartford Underwriters Insurance Company

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2012 CA 2073 BRANDON MASON ROBERT HORNSBY CARLOS MOSES REGINALD JARVIS INDIVIDUALLY AND ON BEHALF OF REGINALD JARVIS JR AND REGANIYA JARVIS VERSUS JAMES RAY HILTON JR W ADCOCK INC AND HARTFORD LJNDERWRITERS INSLJRANCE COMPANY Judgment Rendered V N 7 2 3 On Appeal from the b 19 Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Suit No 581 164 The Honorable Wilson Fields Judge Presiding Todd C Comeaux Baton Rouge John W Louisiana Perry Jr Daniel J Balhoff Baton Rouge Louisiana Attorney for Plaintiff Appellee Brandon Mason Attorneys for Defendants Appellants James Ray Hilton Jr W W Adcock Inc and Hartford Underwriters Insurance Company Albert C Miranda Rachael D Johnson Metairie Louisiana Robert J Diliberto Metairie Arthur Baton Louisiana H Andrews Rouge Louisiana BEFORE Attorney for Intervenor Appellee Diliberto Kirin L C Attorney for Intervenor Appellee Dr Charles R Herring PARRO GUIDRY AND DRAKE J7 DRAKE J In this automobile collision case defendants James Ray Hilton Jr W Adcock Inc and Hartford Underwriters Insurance Company appeal the trial s court granting of a judgment notwithstanding the jury verdict in favor of s plaintiff Brandon Mason For the following reasons we reverse that judgment and reinstate the jury verdict together with the judgment of May 7 2012 rendered in s accordance with the jury verdict s FACTUAL AND PROCEDURAL BACKGROUND On January 9 2009 Mason was driving a vehicle with three passengers Robert Hornsby Carlos Moses and Reginald Jarvis southbound on North Acadian Thruway in East Baton Rouge Parish when a vehicle driven by Hilton and owned by W Adcock Inc attempted to tum left from the right southbound lane on North Acadian Thruway causing a collision with a vehicle being driven by Mason All of the occupants of Mason vehicle originally filed suit against defendants s Hornsby Moses and Jarvis settled their claims prior to trial and dismissed all of the defendants with prejudice on March 10 2010 reserved to proceed against the defendants The rights of Mason were Prior to trial Mason and the defendants stipulated that Hilton was 100 at fault for causing the automobile accident that Hilton was in the course and scope of his employment with W Adcock at the time of the accident that Hartford had in effect a liability policy covering Hilton and W W Adcock at the time of the accident and that the damages did not exceed the 1 policy limits 000 000 A jury trial was held beginning April 10 2012 on the issue of damages The jury returned a verdict awarding Mason 106 far past medical 56 259 expenses 50 952 55 for future medical expenses and 25 for loss of 000 enjoyment of life The jury did not award any damages for past present and future physical or mental pain and suffering The trial court signed a judgment in 2 accordance with the jury verdict on May 7 2012 On May 10 2012 Mason filed a Motion far Judgment Notwithstanding the Verdict JNOV A hearing was held on the JNOV on August 6 2012 and the trial court granted the JNOV The trial court signed the judgment on the JNOV on September 11 2012 and awarded 000 125 for past present and future physical pain and suffering and 25 for 000 past present and future mental pain and suffering leaving the original award of 000 25 for loss of enjoyment of life as it was Defendants appeal both the September 11 2012 judgment granting the JNOV and the May 7 2012 judgment in accordance with the jury verdict The defendants contend that the trial court erred in granting the JNOV and alternatively that the trial court award was excessive LAW AND ANALYSIS JNOV Standard Louisiana Code of Civil Procedure article 1811 allows a party to move for a JNOV This court has recognized the established standard to be used in determining whether a JNOV has been properly granted JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions not merely when there is a preponderance of evidence for the mover The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair persons in the exercise of impartial minded judgment might reach different conclusions In making this determination the trial court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non party This rigorous standard is moving based upon the principle that w there is a jury the jury is the hen trier of fact Citations omitted 1 At the hearing on the JNOV the trial court stated he was increasing the awazd for past and future physical pain and suffering to 225 The judgment signed by the trial court lists 000 Yhe amount as 125 Appeals are taken from judgments not reasons for judgment Davis v 000 Farm FYesh Food Supplier 02 La App 1 Cir 3 844 So 352 353 1401 03 28 2d 54 Therefore this court will only consider the judgment of the trial court 3 Wood v Humphries 11 La App 1 Cir 10 103 So 3d 1105 1ll0 2161 12 9 writ denied 12 La 2 108 So 3d 769 quoting Ioseph v Broussard 2712 13 22 Rice Mill Inc 00 La 10 772 So 2d 94 99 0628 00 30 The trial court must first determine whether the facts and inferences point so strongly and overwhelmingly in favor of the plaintiffs that reasonable jurors could not arrive at a contrary verdict In other words if reasonable persons could have arrived at the same verdict given the evidence presented to the jury then a JNOV is improper Wood 103 So 3d at 1110 An appellate court reviewing a trial court grant of a JNOV employs the s same criteria used by the trial court in deciding whether to grant the motion The appellate court must determine whether the facts and inferences adduced at trial point so overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary finding of fact If the answer is in the affirmative then the appellate court must affirm the grant of the JNOV However if the appellate court determines that reasonable minds could differ on that finding then the trial court erred in granting the JNOV and the jury verdict should be reinstated Id Our initial inquiry is whether the evidence at trial so overwhelmingly supported an increase in general damages to Mason that reasonable jurors could not have concluded otherwise If so then the trial court was correct in granting the JNOV However if reasonable jurors in the exercise of impartial judgment might conclude from the evidence that Mason was entitled to general damages in the amount the jury awarded then the trial court erred in granting the motion and the s jury verdict should be reinstated See Gutierrez v Louisiana Dep of Trans t Dev 11 La App 1 Cir 3 92 So 3d 380 386 writ denied 12 1774 12 23 1237 La 998 So 3d 343 12 21 4 Evidence as to Dama es The evidence at trial was that Mason was involved in two accidents prior to the January 9 2009 accident Hilton accident In the first accident he injured his left shoulder and lower back and in the second accident he injured his neck and For both of these accidents he was treated by Dr Michael Goff a back chiropractor and was released from treatment approximately one month before the Hilton accident Mason suffered neck back and a right knee injury in the Hilton accident Mason testified that he also treated with Dr Goff following the Hilton accident but that the treatment took longer and the pain he suffered was worse than the previous two accidents With the previous two accidents Mason only took over medication for his pain Following the Hilton accident he counter the also treated with an orthopedist Dr Joseph Boucree who prescribed pain medication and six steroid injections between 2010 and 2012 Mason did not begin taking prescription pain medication until January 21 2011 two years after the Hilton accident The jury awarded Mason past medical expenses of 56 259 106 They also awarded Mason future medical expenses of 55 50 952 Dr Boucree saw Mason beginning March 8 2010 for neck and back pain with complaints of radicular pain in the upper and lower extremiries At the time Mason was 29 years old An MRI taken January 22 2011 of Mason back s showed mild disc space narrowing at LS The majority of Mason complaints S1 s were regarding his lower back but his cervical spine evidenced multiple disc bulges Dr Boucree diagnosed Mason with cervical and lumbar strain and explained that Mason had a soft tissue injury As a result of Dr Boucree s findings Mason received three steroid injections by the time of Dr Boucree s deposition in April 18 2 Dr Boucree testified that Mason neck improved 11 s with conservative management with Dr Goff by February 14 2011 However s Mason lower back pain persisted and Dr Boucree determined that Mason would 5 need two to three steroid injections per year to manage that pain Dr Boucree testified that he did not see Mason until over a year after the Hilton accident but agreed that based on Mason history it was more likely than not that the lower s back and neck pain were related to the Hilton accident Dr Goff testified that he treated Mason for the two previous accidents with physical therapy electrical stimulation ultrasound and spinal manipulation on both his cervical and lumbar spine both of which fully and completely recovered before the Hilton accident Although Dr Goff had ordered an MRI in January 2008 Mason and Dr Goff decided that since Mason kept improving they would not have the MRI performed He treated Mason for symptoms in his cervical spine lumbar spine and right knee following the Hilton accident After an MRI was performed in January 2010 Dr Goff referred Mason to Dr Boucree Dr Boucree referred Mason back to Dr Goff to receive physical therapy treatment Dr Goff testified that Mason would have to live with his condition for life and Dr Goff was trying to help him maintain a good qualiry of life Dr Goff testified that an X revealed objective findings that correlated with Mason subjective ray s complaints Dr Goff testified that more probably than not the Hilton accident was directly related to the aggravation of Mason cervical and lumbar spine s problems Dr Goff also testified that Mason suffered a right knee strain as a result of the Hilton accident Dr Goff believed that Mason would require chiropractic care once or twice a week in the future for the rest of his life On cross examination Dr Goff testified Mason did not get the first MRI he ardered in January 2008 because Mason was getting better However Dr Goff s records indicated he was getting worse and was involved in a second accident Dr Goff also admitted that his records show Mason had the same complaints of neck back and right knee pain for all three accidents Furthermore Dr Gof s diagnoses appeared to have been the same for all three accidents cervical and 6 lumbar strain Dr Goff testified on re that the Hilton accident aggravated a direct existing pre condition ofMr Mason Dr Randolph Rice an economist testified that the total future medical cost to Mason for chiropractic care and 770 injections would be 916 Dr Rice admitted on cross examination that he figured the cost of three injections a year in the future and did not take into account that Mason may not need any injections Dr Stephen Wilson a board certified orthopedic surgeon testified on behalf of the defendants After reviewing the medical records of Mason and the depositions of Drs Goff and Boucree Dr Wilson suggested that Mason undergo an independent medical examination IME Dr Wilson believed Mason should have recovered sooner from the Hilton accident and was getting a little too much treatment Dr Wilson actually did perfarm the IME of Mason and rendered a report on October 19 2010 Mason told Dr Wilson that he was a weightlifter and continued to lift weights even after the Hilton accident s Mason physical examination was normal and Dr Wilson found no abnormalities to his back neck or lower extremities Dr Wilson also found Mason right knee to be narmal with s the normal range of motion Dr Wilson noted that Mason seemed to embellish the pain of some things he was asked to do that should not have hur Dr Wilson reviewed the MRI taken of Mason and testified that Mason had disc bulging from the second cervical disc to the sixth cervical disc as well as facet arthritis The lower back showed some bulging and foraminal stenosis at L2 L3 and L4 Dr Wilson testified that the findings on the MRI were normal for a person after the age of 20 that is showing some bulging of the discs with some facet arthritis Dr Wilson testified that Mason sustained a soft tissue injury to his right lrnee neck and lower back He found no objective findings for Mason continued subjective s complaints and believed the Hilton accident aggravated a pre existing degenerative condition in his neck and back Dr Wilson testified that a patient s 7 symptoms from the type of injury sustained by Mason should return to pre injury status in eight to twelve weeks Dr Wilson also testified Yhat Mason had reached maximum medical improvement at the time of the IME and he could continue with any activity he was performing prior to the Hilton accident Therefore Dr Wilson testified that Mason did not need any further chiropractic medical or surgical treatment James Ray Hilton Jr testified that on the day of the accident he was returning to his office In order to avoid the scene of a wreck he attempted to turn left onto another street Mr Mason was in his own lane and coming beside Hilton so when Hilton attempted to turn left the vehicles struck sides Hilton tesrified that four men got out of the vehicle driven by Mason after the accident An ambulance came to the scene of the accident but no one left in it On cross examination Mason admitted that all ofthe treatments he received from Dr Goff were the same for all three accidents except that the treatments after the Hilton accident lasted longer When questioned about working out with weights after the Hilton accident Mason testified that he told Dr Wilson he was still exercising but not with weights In his direct testimony Mason stated that he played basketball a sport he had played at the college level once or twice every two to three months after the Hilton accident Mason denied he played basketball immediately after the Hilton accident but did admit he would play basketball once or twice every three months He denied that any doctor told him to stop playing basketball after the Hilton accident The jury awarded the full amount of past medical expenses but less than 20 of the future medical expenses requested and only 25 in general 000 damages The trial court granted the JNOV increasing the general damages to 000 175 8 General damages involve mental or physical pain or suffering inconvenience loss of gratification or intellectual or physical enjoyment or other losses of lifestyle that cannot be measured definitively in terms of money Boudreaux v Farmer 604 So 2d 641 654 La App lst Cir writs denied 605 So 2d 1373 and 1374 La 1992 The factors to be considered in assessing quantum of damages for pain and suffering are severity and duration Jenkins v State ex Nel Dep Transp and Dev 06 La App 1 Cir 8 993 So tof 1804 08 19 2d 749 767 writ denied 2471 08 08 19 La 12 996 So 2d 1133 Much discretion is left to the judge or jury in the assessment of general damages LSA C art 2324 In reviewing an attack on a general damage award a court does 1 not review a particular item in isolation rather the entire damage award is reviewed for an abuse of discretion and if the total general damage award is not abusively low it may not be disturbed Graham v Offshore Specialty Fabricators Inc 09 La App 1 Cir 1 37 So 3d 1002 1017 Smith v 0117 10 8 18 Goetzman 97 La App 1 Cir 9 720 So 2d 39 48 It is only when 0968 98 25 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 v Maritime Overseas Corp 623 So 2d 1257 1261 La 1993 cert denied 510 U 1114 114 S 1059 127 L 379 1994 Only after it is S Ct 2d Ed determined that there has been an abuse of discretion is a resort to prior awards appropriate and then only to determine the highest or lowest point of an award within that discretion Coco v Winston Indus Inc 341 So 2d 332 335 La 1976 Moss v State o7 La App 1 Cir 8 993 So 2d 687 704 writ 1686 08 denied 08 La 11 996 So 2d 1092 2166 08 14 In Pitre v Government Employees Ins Co 596 So 2d 256 La App 3 Cir writ denied 600 So 2d 685 La 1992 the court took into consideration the 9 entire damage award to the plaintiff including special damages in determining whether the award was unreasonable A the awards for certain elements lthough of damages may be inadequate or excessive if the total sum awarded is neither excessive or inadequate it must not be disturbed Id at 260 In Smith this 61 court relied on Pitre and held that the total general damage award was to be considered in determining if the trier of fact had abused its discretion The plaintiffs had contested the general damage award for past and future mental anguish loss of enjoyment of life and inconvenience as abusively low The court in Smith considered all of the general damages awarded including 50 for 000 pain and suffering and 25 for permanent disability not just the 5 award 000 000 for mental anguish loss of enjoyment of life and inconvenience in holding that the jury did not abuse its vast discretion Smith 720 So 2d at 48 In Graham although a jury did not award any damages for future physical and mental pain and suffering the general damage award was not an abuse of discretion The jury did award damages for past physical mental pain and suffering and loss of enjoyment of life This court stated that a damage award is not reviewed in isolation Graham 37 So 3d at 1018 19 Both parties supported their respective positions on damages with ample evidence consisting of numerous fact and expert witnesses and several e ibits The jury was required to evaluate the credibility of these witnesses and resolve any conflicting evidence and in doing so the jury had the prerogative to accept or reject all or part of the testimony of any witness including all or part of the testimony of any of the expert witnesses Fleniken v Entergy Corporation 00 1824 La App 1 Cir 2 780 So 2d ll75 1195 writs denied 01 O1 16 96 1268 1305 01 and 01 La 6 793 So 2d 1250 1253 and 1254 1317 Ol 15 Mason argues that the jury awarded him only loss of enjoyment of life and not physical or mental pain and suffering This court does not review a particular item of general 10 damages in isolation rather the entire general damage award is reviewed for an abuse of discretion and if the total general damage award is not abusively low it may not be disturbed Graham 37 So 3d at 1 18 17 This court does not find the 25 general damage award to Mason for 000 loss of enjoyment of life to be abusively low Considering the evidence presented at trial we find that it was of such quality and weight that reasonable and fair minded men in the exercise of impartial judgment might reach different conclusions See Strain v Indiana LumbeNman Mut Ins Co 00 La App s 2720 1 Cir 2 818 So 2d 144 149 The evidence at trial did show that Mason 02 20 had a pre injury which was aggravated by the Hilton accident However existing the defendants presented evidence that Mason may have embellished his injuries and his recovery time should have been much shorter Reasonable questions of fact should have been resolved in favor of defendants under the 7NOV test Id Accordingly we reverse the JNOV and reinstate the judgment on the jury verdict awarding 25 in general damages 000 CONCLUSION For the reasons noted above we reverse the trial court JNOV increasing s Brandon Mason general damage award to 175 vacate the judgment signed s 000 on September 11 2012 and reinstate the May 7 2012 judgment in accordance with the jury verdict JNOV JUDGMENT REVERSED REINSTATED 11 AND ORIGINAL JUDGMENT

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