Lucille Gray, Individually and o/b/o Hase Gray, III VS Safeco Insurance Company of America, Geico General Insurance and Zachary Dean Talbot
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 CA 0210 LUCILLE GRAY INDIVIDUALLY B O HASE GRAY III VERSUS SAFECO INSURANCE COMPANY OF AMERICA GEICO GENERAL INSURANCE COMPANY ZACHARY DEAN TALBOT 7udgment Rendered NOV 0 1 2013 On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana No 585 573 Honorable R Michael Caldwell Judge Presiding David L Bateman Counsel for Plaintiff Appellant Brady K Patin Baton Rouge Louisiana Lucille Gray Individually and on behalf of minor child Hase Gray III Michael M Counsel for Defendants Appellees Kenneth W Zachary Dean Talbot and Baton General Ins Co of America Thompson Benson Jr Rouge Louisiana Paul Marks Jr Baton Rouge Louisiana BEFORE Counsel for Defendant Appellee GEICO General Insurance Co PETTIGREW McDONALD AND McCLENDON JJ McCLENDON J In this personal injury case the plaintiff appeals a judgment of the trial court rendered in conformity with a jury verdict The plaintiff contends that the s jury awarded inadequate general damages and that the trial court erred in failing to grant her motion for judgment notwithstanding the verdict or alternatively for a new trial or additur For the reasons that follow we affirm FACTUAL AND PROCEDURAL HISTORY On January 28 2009 the plaintiff Lucille Gray was operating her vehicle traveling west on Interstate 10 in Baton Rouge She was stopped in traffic when she looked in her rear mirror and saw the vehicle of the defendant view Zachary D Talbot about to hit her Mr Talbot vehicle hit Ms Gray vehicle s s which then hit the vehicle in front of her However the air bag in Ms Gray s vehicle did not deploy Ms Gray was transported by ambulance to the emergency room at Our Lady of the Lake Hospital and was released later that day On December 15 2009 Ms Gray filed suit against Mr Talbot his automobile liability insurer Safeco Insurance Company of America and GEICO General Insurance Company Ms s Gray underinsured motorist coverage provider asserting that as a result of the accident she sustained injuries to her shoulder arm neck and back Thereafter Ms Gray filed a motion for partial summary judgment on the issue of liability and on May 10 2011 a judgment in favor of Ms Gray and against the defendants was signed by the trial court on the issue of liability alone reserving for trial all issues involving damages The matter proceeded to trial before a jury on July 24 25 and 26 2012 Following the presentation of evidence by Ms Gray the defendants moved for a directed verdict on her claim regarding future surgery alleging that Ms Gray had not established the cost of future surgery with sufficient specificity The trial court granted the motion as to future cervical surgery but not as to other future 1 Ms Gray also filed suit on behalf of her minor child Hase Gray III to recover damages for loss of consortium as a result of the accident This claim is not an issue in Ms Gray sappeal 2 medical costs After deliberating the jury concluded that Ms Gray sustained damages that were caused by the accident of January 28 2009 The jury awarded Ms Gray past medical expenses in the amount of 36 future 00 000 medical expenses in the amount of 10 past and future physical pain 00 000 and suffering in the amount of 5 and past and future mental pain and 00 000 anguish in the amount of 4 for a total damages award of 55 00 000 00 000 The jury declined to make any award for disfigurement or for past and future loss of enjoyment of life Judgment was signed on August 14 2012 in accordance with the jury verdict and on August 15 2012 Ms Gray filed a motion for judgment notwithstanding the verdict JNOV or alternatively for a new trial or additur asserting that the award for general damages was abusively low Following a hearing the motion was denied On October 31 2012 judgment was signed denying the motion and Ms Gray devolutively appealed DISCUSSION General Damaaes In her appeal Ms Gray initially asserts that the injuries she sustained to her cervical spine as a result of the subject accident have caused her constant pain and have altered her work and other daily activities Further she contends her pain continues to get progressively worse Therefore Ms Gray avers that the jury committed reversible error and abused its discretion by awarding or inadequate general damages On the other hand the defendants contend that Ms Gray did not suffer from the claimed injuries to the extent she has alleged The defendants also assert that the award of general damages was based on credibility determinations and that a reasonable interpretation of the evidence exists to support the award in all respects It is well that a judge or jury is given great discretion in its settled assessment of quantum both general and special damages Louisiana Civil Code Article 2324 provides In the assessment of damages in cases of offenses 1 quasi offenses and quasi contracts much discretion must be left to the judge or jury Furthermore the assessment of quantum or the appropriate amount of 3 damages by a trial judge or jury is a determination of fact one entitled to great deference on review Guillory v Lee 09 La 6 16 So 1104 0075 09 26 3d 1116 Wainwright v Fontenot 00 La 10 774 So 70 74 0492 00 17 2d The reviewing court must give great weight to factual conclusions of the trier of fact Where there is conflict in the testimony reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review even though the appellate court may feel that its own evaluations and inferences are as reasonabte Rosell v ESCO 549 So 840 844 La 1989 Where 2d there are two permissible views of the evidence the fact finder choice between s them cannot be manifestly erroneous or clearly wrong Id The reason for this settled well principle of review is based not only upon the trial court better s capacity to evaluate live witnesses as compared with the appellate court s access only to a cold record but also upon the proper allocation of trial and appellate functions between the respective courts Guillory 16 So at 1116 3d 17 Because the discretion vested in the trier of fact is so great and even vast an appellate court should rarely disturb an award on review Youn v Maritime Overseas Corp 623 So 1257 1261 La 1993 2d The role of an appellate court in reviewing a general damages award one which may not be fixed with pecuniary exactitude is not to decide what it considers to be an appropriate award but rather to review the exercise of discretion by the trier of fact Thus before a court of appeal can disturb an award made by a fact finder the record must clearly reveal that the trier of fact abused its discretion in making its award Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award and then only to the extent of lowering it or raising it to the highest or lowest point which is reasonably within the discretion afforded that court Wainwright 774 So at 74 Moreover on review an appellate 2d court must be cautious not to re the evidence or to substitute its own weigh factual findings just because it would have decided the case differently Guillory 16 So at 1117 Reasonable persons frequently disagree about the 3d 4 measure of damages in a particular case 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 at 1261 2d With these principles in mind we look to the evidence in the record to determine if the jury general damages award in this matter was contrary to the s evidence or constituted an abuse of discretion In support of her claim Ms Gray testified at trial and the video depositions of Drs Roy Kadair Jorge Isaza Rasheed Ahmad and Darryl Peterson were played for the jury and introduced into evidence Additionally Ms Gray medical records and bills were introduced s into the record As part of their case the defendants presented the testimony of Dr Elizabeth Clubb and Ms Gray records from Baton Rouge Orthopaedic Clinic s The record establishes that when Ms Gray was transferred to Our Lady of the Lake Regional Medical Center after the accident by the Baton Rouge EMS Department her complaint was of elbow pain At the hospital Ms Gray complained of right elbow pain and pain radiating down her right arm with mild numbness The hospital diagnosed Ms Gray with Elbow pain Two days after the accident on January 30 2009 Ms Gray went to see her primary care physician Dr Roy Kadair complaining of bilateral pain in her shoulders Ms Gray had no complaints of pain in her neck or back at that time and Dr Kadair made no specific reference to neck pain in his notes Dr Kadair referred Ms Gray to physical therapy He ne saw Ms Gray on February 16 2009 Ms Gray presented with pain in her right arm that she stated started three days after her last visit Ms Gray also had a different pain around the lateral part of her elbow and she stated that she had intermittent numbness in her right arm After determining that Ms Gray had nerve symptoms in her right arm and that there was likely some neurological involvement in her neck Dr Kadair 2 The records of Downtown Physical Rehabilitation from February 20 2009 through May 22 2009 indicate that Ms Gray complaints were of right arm pain and specifically right elbow s pain with right elbow tingling into the hand as the result of the motor vehicle accident 5 specificaliy asked Ms Gray if the accident would likely lead to litigation Ms Gray responded affirmatively and Dr Kadair then ordered an MRI of her neck and an EMG nerve conduction study of her arm He also requested that she undergo a neurological evaluation performed by either a neurologist or a neurosurgeon Ms Gray returned to see Dr Kadair approximately four months later on June 16 2009 for pre clearance for an abdominalplasty or tummy operative tuck and liposuction scheduled with Dr Elizabeth Clubb and unrelated to the accident At that time Dr Kadair reviewed the test results with Ms Gray The MRI report showed a broad disc bulge at the C5 level that resulted in a based 6 mild to moderate degree of broad thecal sac encroachment The C6 based 7 level showed a minor degree of broad disc bulge The EMG performed by based Dr William Gladney showed right C6 mild denervation changes probably related to a C6 radiculopathy on the right side It was Dr Kadair opinion that Ms Gray s had disc bulging rather than a herniated disc and he cleared Ms Gray for the elective surgery Dr Kadair stated that if Ms Gray had had an unstable neck from a herniated disc causing continuous pressure on a nerve root he would not have approved her for the cosmetic surgery Ms Gray did not complain of neck or arm pain at that time Ms Gray was referred by her attorney to Dr Jorge Isaza an orthopedic spine specialist who first saw Ms Gray on March 23 2009 Ms Gray chief s complaint was of right arm pain with numbness and tingling in her right arm and numbness in her right leg She denied any neck pain She also told Dr Isaza that physical therapy failed to relieve her symptoms On examination Dr Isaza noted decreased range of motion of Ms Gray cervical spine He also noted that s rays x of the cervical spine showed that the normal curvature of the spine was straightened out a bit indicating muscle spasms or pain in the neck Upon review of Ms Gray MRI Dr Isaza noted a broad disc herniation at C5 s based 6 3 Ms Gray also testified at trial regarding previous msmetic surgery She had breast reduction surgery in September 2008 Ms Gray stated that after the breast reduction surgery she no longer had pain from her bra straps in her upper back and shoulders Despite the defendants assertions of previous neck pain Dr Kadair believed that Ms Gray complaints of shoulder pain s before the subject accident were related to her large breasts and were of a different nature than her cervical complaints after the accident 6 but no cord compression was seen There was also mild spurring on the left at 7 C6 Based on the results of the MRI EMG and x Ms Gray complaints rays s of right pain were consistent with those objective findings Given her sided history Dr Isaza impression was that Ms Gray was suffering from cervical s strain a disc herniation at C5 C6 radi on the right carpel tunnel 6 ulopathy syndrome and tennis elbow of the right arm At that visit Dr Isaza referred Ms Gray to Dr Rasheed Ahmad for her hand and elbow Ms Gray ne saw Dr Isaza on April 23 2009 with continued complaints of numbness and tingling in the right arm and right leg and of right sided headaches neck Again she did not complain of pain Ms Gray first complained of neck pain to Dr Isaza on June 10 2009 Dr Isaza continued conservative treatment following visits on September 23 2009 February 25 2010 June 8 2010 and February 21 2011 During her six follow visit month up on August 19 2011 Dr Isaza noted some changes in her reflexes Dr Isaza was concerned with cervical myelopathy which is compression of the spinal cord although he noted that there were no clear signs pointing to that He wanted to keep a closer eye on Ms Gray and wanted another MRI of the cervical spine Ms Gray next visit with Dr Isaza was on December 15 2011 at which s time he discussed the MRI results The MRI performed on December 12 2011 showed a slight spondylolisthesis at C4 the disc herniation at C5 slightly 5 6 more right sided than left with contact to the cord but no evidence of spinal cord signal changes On that date Dr Isaza discussed treatment options with Ms Gray including surgical versus nonsurgical options He noted that he needed to continue to monitor her symptoms closely and that it was okay to wait on any type of surgical intervention but that Ms Gray needed to let him know immediately if there were any changes He believed that Ms Gray had reached maximum medical improvement without surgery at that time On that date Dr Isaza also ordered a second EMG that was conducted on April 27 2009 by Dr Gladney and had similar findings to the EMG of March 3 2009 Dr Gladney reported bilateral carpal tunnel syndrome as well as mild denervation right C6 probable mild radiculopathy 7 Ms Gray saw Dr Isaza again on February 27 2012 Ms Gray had the same complaints and had issues with increased activities He noted that he had a long discussion with her about treatment options and indicated to her that surgery would be indicated only for intractable pain or progressive neurological weakness While Ms Gray was not happy with her pain she did not feel it was at the point that she would consider surgical intervention Ms Gray last visit s with Dr Isaza before trial was on May 2 2012 She continued to have the same complaints of neck pain and right arm pain Dr Isaza concluded that it was more likely than not that Ms Gray was going to require surgery in the future if she continued to develop progression of her symptoms on the cervical spinal cord He also believed considering the subject accident and finding that her accident pre breast reduction surgery had alleviated her previous neck complaints that it was more likely than not that her complaints of neck pain following the accident and her disc herniation and treatment were related to the automobile accident in January 2009 It was Dr Isaza opinion that Ms Gray s s symptoms have persisted and have not changed in nature despite her cosmetic surgery procedures Dr Rasheed Ahmad a hand elbow and forearm specialist first saw Ms Gray on April 7 2009 Ms Gray had right hand and arm numbness examination he diagnosed her with carpal tunnel syndrome and Upon lateral epicondylitis or tennis elbow It was Dr Ahmad opinion that neither of these s conditions was caused by the automobile accident Dr Ahmad next saw Ms Gray on May 29 2009 Ms Gray did not have any numbness or right hand pain but complained of pain in her right arm described as a deep aching and throbbing pain Upon examination Dr Ahmad did not think Ms Gray had tennis elbow and thought her pain was coming from her cervical spine Dr Ahmad did not make any note of any swelling in Ms Gray right s thumb He stated that unless Ms Gray had pointed out the pain in a particular spot he would not have examined her for deQuervain tenosynovitis Although s Dr Ahmad was of the opinion that deQuervain scan be caused by a direct blow 8 he did not think that having your hands on something would cause it Further he stated that if deQuervain syndrome was present it would manifest itself s quickly and not three months later He stated that if the deQuervain was s caused by the subject accident it would have been present when he saw Ms Gray and it would have made sense that Ms Gray would have mentioned it since she was treated by Dr Ahmad for deQuervain her left wrist two years sin It was Dr Ahmad opinion that Ms Gray right wrist and thumb s s earlier problems were not related to the subject accident Dr Darryl Peterson a hand orthopedic surgeon saw Ms Gray on December 3 2009 with complaints of right wrist pain He diagnosed Ms Gray with deQuervain syndrome which is inflammation of the tendons at the wrist at s the thumb Dr Peterson found more swelling than in most presentations and he could see and feel the swelling Ms Gray was also in significant pain which was consistent with what he saw He also thought she might have a ganglion cyst which is swelling of tissue Ms Gray history was of an automobile accident and s pain that was progressively getting worse Dr Peterson was of the opinion that Ms Gray had a very advanced case of deQuervain syndrome and that she s needed surgery Surgery under general anesthesia was performed on December 11 2009 Dr Peterson described that a one to one inch incision was made half a and after which he released the tightness in the tendons and trimmed the swelling There were no complications Ms Gray followed up with visits on December 30 2009 January 13 2010 February 15 2010 and April 7 2010 On her last visit Ms Gray reported minimal pain although she stated that weather change did cause some aching Dr Peterson stated that the most common cause for ssyndrome is repetitive activity deQuervain It can also be caused by trauma Based on Ms Gray history of having no wrist problems before the subject s accident and in contrast to Dr Ahmad opinion Dr Peterson opined that the s January 28 2009 accident caused Ms Gray hand injury and her need for s surgery 9 Dr Peterson believed the pain began with the accident and that typically the pain manifests within six to eight weeks On cross he was examination shown Dr Ahmad deposition where Dr Ahmad stated that Ms Gray had no s complaints on the thumb side of her right wrist in April or May of 2009 yet Ms Gray indicated to Dr Peterson on her first visit that she had problems with her wrist since the accident However she also indicated on that visit that her right wrist pain began in August 2009 Dr Peterson snotes further indicated that Ms Gray stated that she was not sure if the accident caused the wrist pain Dr Elizabeth Clubb an expert in the field of cosmetic surgery testified at trial Dr Clubb testified that she first saw Ms Gray in April 2008 approximately nine months before the accident for breast reduction surgery At that time Ms Gray was complaining of pain in her neck and upper back The surgery was performed in September 2008 Dr Clubb saw Ms Gray again in June 2009 approximately five months post for elective abdominoplasty and accident liposuction Dr Clubb stated that she was not given information regarding the January 2009 accident or Ms Gray cervical problems Dr Clubb testified that s that information was significant as she would want to know a complete history especially since a patient has to be turned several times with liposuction Dr Clubb testified that had she had the information she would have referred Ms Gray to an orthopedist or neurosurgeon to clear Ms Gray for the surgery Ms Gray suffered significant complications following her abdominoplasty Dr Clubb testified that Ms Gray suffered a pulmonary embolus or blot clot the day following surgery when she stood up to get dressed to go home Ms Gray was aggressively treated with blood thinners which caused hemorrhaging As a result Ms Gray had to return to surgery and she remained in the hospital for seven to eight days Ms Gray was not cleared to return to work until January 2010 10 The jury considered all the testimony and documentary evidence presented at trial including Ms Gray own testimony Given that evidence the s jury could have reasonably found that while Ms Gray was involved in the subject accident she did not suffer injuries to the e she has alleged and may have ent had a different appreciation of the severity of the injuries suffered as a result of the accident Ms Gray initial complaints to EMS and at the hospital on the day s of the accident were only of elbow pain Her physical therapy from February through May 2009 was for right elbow pain Further Ms Gray did not complain of neck pain until June 2009 five months after the accident She also chose to proceed with elective cosmetic surgery in une 2009 and declined to tell her surgeon of any cervical problems Nor did she tell Dr Isaza that she was undergoing the cosmetic surgery Further when Ms Gray went to Dr Kadair for her pre clearance she did not complain of any neck or arm pain at that surgery time With regard to her right wrist Ms Gray gave different dates as to when the pain began She also failed to tell her doctors treating her for her right wrist problems of her prior similar problems in her left wrist including the fact that she had been diagnosed with a severe case of deQuervain syndrome in her left s wrist in 2008 Moreover Ms Gray did not tell Dr Isaza her spine specialist that she was involved in a later motor vehicle accident in December 2009 although Ms Gray testified that it was minor and there were no injuries Thus based on its weighing of the evidence and credibility determinations the jury reasonably could have concluded that Ms Gray complaints regarding her arm neck and s upper back pain were either exaggerated or not related to the accident Nevertheless the jury chose to award Ms Gray all of her medical expenses higher She therefore asserts that her general damages award should be However the Louisiana Supreme Court has held that a jury does not abuse its discretion in awarding medical expenses but no general damages when the medical expenses were incurred to determine whether injuries were in fact 5 During deliberations the jury sent a note to the trial court with several questions In response all of the documentary evidence was given to the jury by the trial court 11 sustained See Wainwright 774 So at 77 In Wainwright the supreme 2d court held that the particular facts of each case are ultimately determinative as to whether awards for different elements of damages in personal injury cases are inconsistent and that there is no bright line rule at work in situations where special damages are awarded but no general damages are awarded Wainwright 774 So at 76 2d While general damages were awarded in this matter the jury believed that an award of only 5for physical pain and suffering past and future 00 000 and 4 for mental pain and suffering past and future was appropriate 00 000 and furthermore that Ms Gr ay did not sustain disfi g urement or a loss of enjoyment of life As to her claim for disfigurement Ms Gray held up her wrist for the jury to see her scar However she did not stand up and her attorney even stated that it was hard to see from where she was No photograph of her wrist or scar was introduced into evidence Further although Dr Peterson related the deQuervain syndrome in Ms Gray right wrist to the subject s s accident Dr Ahmad was of the opinion that it was not related Ms Gray also testified that one week after the accident she could perform all of her regular activities Loss of enjoyment of life refers to detrimental alterations of the s person life or lifestyle or the person inability to participate in the activities or s pleasures of life that were formerly enjoyed prior to the injury McGee v A C And S Inc 05 La 7 933 So 770 775 The jury could have 1036 06 10 2d reasonably believed that Ms Gray simply failed to present sufficient evidence of disfigurement or loss of enjoyment of life We cannot say that there was manifest error in the jury failure to award any damages for disfigurement or s loss of enjoyment of life The jury did not differentiate whether the general damages awarded were for cervical or wrist injuries or for both While we recognize that the jury s 00 000 9 general damages award is on the lower end of what might be appropriate the jury based on the facts and circumstances of this case could have reasonably concluded that Ms Gray cervical complaints were simply not s 12 Although all of Ms Gray medical s related to the January 2009 accident expenses were awarded most of those expenses besides those related to her wrist were to determine the extent of the injuries if any sustained Further Ms Gray suffered no complications from the surgery for the deQuervain s syndrome and she recovered quickly with minimal pain and there was a disagreement among experts regarding causation The jury made credibility determinations and could have chosen not to believe Ms Gray testimony s regarding the e or cause of her injuries Moreover the jury may have ent determined that her pain was minimal when Ms Gray chose to have elective surgery in une 2009 approximately five months post There were two accident permissible views of the evidence and it is not our role to substitute our view of the evidence for that of the jury Considering the evidence in the record the s jury could have reasonably concluded 9 was an appropriate general 00 000 damages award Thus based upon the particular facts of this case we cannot say that the award for general damages was an abuse of the jury discretion s Motion for JNOV New Trial or Additur Ms Gray also contends that the trial court erred in failing to grant her motion for JNOV or alternatively for new trial or additur A JNOV is a procedural device authorized by LSA art 1811 by P C which the trial court may modify the jury findings to correct an erroneous jury s verdict A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors 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 men could not reach different conclusions not merely when there is a preponderance of evidence for the mover If there is evidence opposed to the motion that is of such quality and weight that reasonable and fair men in minded the exercise of impartial judgment might reach different conclusions the motion should be denied In making this determination the court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions 13 should be resolved in favor of the moving non parry Davis v Wal Mart Stores Inc 00 p 4 11 774 So 84 89 Cobb v 0445 La 28 00 2d 1032 App Mitchell 12 La 1 Cir 13 2 6 3d So The rigorous standard of a JNOV is based upon the principle that when there is a jury the jury is the trier of fact Trunk v Medical Center of Louisiana at New Orleans 04 La 10 885 So 534 537 0181 04 19 2d Simply stated if reasonable persons could have arrived at the same verdict given the evidence presented to the jury then a JNOV is improper Cavalier v State ex rel Dept of Transp and Development 08 La 1 Cir 0561 App 08 12 9 994 So 635 644 The standard to be applied by the appellate 2d courts in reviewing the grant or denial of a JNOV is whether the trial court s findings were manifestly erroneous Marroy v Hertzak 11 La 1 0403 App Cir 9 77 So 307 317 11 14 3d Considering all of the evidence and the reasonable inferences to be made therefrom in favor of Ms Gray we cannot say that the trial court was manifestly erroneous in refusing to grant her motion for JNOV The evidence did not point so strongly in favor of Ms Gray that reasonable persons could not have reached a different conclusion In particular given Ms Gray testimony and the medical s records introduced into evidence the jury was faced with conflicting testimony and credibility issues which the jury resolved in part in her favor Stated differently given the record before us we are unable to say that reasonable and minded fair jurors in the exercise of impartial judgment could only reach the conclusions urged by Ms Gray in support of her request for JNOV Accordingly we find no error in the trial court sdenial of plaintiff smotion for NOV Alternatively Ms Gray moved for a new trial The motion for a new trial requires a less stringent test than a motion for a JNOV in that such a determination involves only a new trial and does not deprive the parties of their right to have all disputed issues resolved by a jury Id A new trial shall be granted if the jury verdict appears to be clearly contrary to the law and the evidence P C LSA art 1972 Also a trial court may grant a new trial if 1 14 there is some good ground therefor LSA art 1973 When considering a P C motion for a new trial the trial court has wide discretion LSA art 1971 P C However it is well settled in this circuit that an appeal of a denial of a motion for new trial will be considered as an appeal of the judgment on the merits when it is clear from the appellanYs brief that the appeal was intended to be on the merits Nelson v Teachers Retirement System of Louisiana 1190 App 10 La 1 Cir 2 57 So 587 589 n Carpenter v 11 li 3d 2 Hannan 01 La 1 Cir 3 818 So 226 228 writ denied 0467 App 02 28 2d 29 1707 02 La 10 827 So 1153 02 25 2d Additionally the Louisiana Code of Civil Procedure provides a procedure for additur or remittitur of the verdict or judgment in cases tried before a jury when the trial court is of the opinion that the verdict is so excessive or inadequate that a new trial should be granted for that reason only See LSA P C art 1814 This procedure is connected with the procedures concerning new trials Guidry v Millers Cas Ins Co 01 La 1 Cir 6 0001 App 02 21 822 So 675 680 2d In this matter the trial court acknowledged in its oral reasons that this was a close question but had to have found that reasonable minds could have reached the jury conclusion as it denied the motion s We must agree The s jury findings were largely based on credibility determinations and weighing of conflicting evidence Although the evidence was conflicting two permissible views of the evidence existed and the fact finder choice between them cannot s be manifestly erroneous or clearly wrong See Rosell 549 So at 844 The 2d s jury verdict was supported by a fair interpretation of the evidence and there was sufficient evidence heard by the jury that could have led it to conclude that Ms Gray did not suffer injuries to the e she alleged ent Accordingly we can find no abuse of the trial court discretion in its judgment denying Ms Gray s s motion for new trial or additur 15 CONCWSION For the above and foregoing reasons the August 14 2012 judgment of the trial court rendered in accordance with the jury verdict is affirmed The s October 31 2012 judgment of the trial court denying plaintiff motion for JNOV s new trial and additur is also affirmed Costs of this appeal are assessed against plaintiff Lucille Gray AFFIRMED 16
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