Mitzi Sprague VS Zachary Fladmo and Safeco Insurance Company of Illinois
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 CA 0520 MITZI SPRAGLTE VERSUS ZACHARY FLADMO AND SAFECO INSL RANCE COMPANY OF ILLINOIS Judgment D Rendered DEC 1 0 2U13 On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No 585 936 The Honorable Todd Hernandez Judge Presiding Steve Adams I3aton Rouge Louisiana Iichael PM I3aton Thompson Rouge Louisiana BEFORE Attorney for Appellee Mitzi Sprague Attorney for Appellants Zachary Fladmo and Safeco Insurance Company of Illinois PARRO GUIDRY AND DRAKE JJ DRAKE J This is an appeal by defendants Zachary Fladmo and Safeco Insurance Company of Illinois from a judgment of the trial court awarding damages to p aintiff Mitzi Sprague Defendants seek to reduce the amount of damages Narded a to plaintiff FACTS AND PROCEDURAL HISTORY Plaintiff was involved in an automobile accident on January 11 2009 when slie was rear by a full Dodge Ram truck while driving a Mini Cooper ended size Following the accident plaintiff sought medical treatment for pain in her neck and back as well as headaches for which she sought damages She also sought damages for an aggravation of multiple sclerosis a condition from which she s zffered since had 1998 Plaintiff filed suit against defendants and a trial was held on September 4 2012 The parties stipulated that damages did not exceed 000 50 Although there was no formal stipulation as to liability the parties agreed that since this case was a rear collision evidence would be limited to end causation and damages On December 17 2012 the trial court signed a judgment awarding plaintiff 35 in general damages for pain and suffering and 3 in 000 520 special damages Defendants appeal the amount of general damages awarded alleging that causation as to an aggravation ofmultiple sclerosis was not proven ASSIGNMENT OF ERRORS Defendants assign as errar that the trial court erred 1 in applying the wrong urden ti of proof regarding causation for aggravation of multiple sclerosis 2 in finding sufficient evidence to meet the burden of proof as to medical causation and 3 in awarding 35 in general damages for plaintiff injuries which 000 s cefendants believe were limited to soft tissue injuries 2 MEDICAL CAUSATION urden B of Proof Defendants claim that the trial court applied the wrong standard to termine d if the plaintiff inet her burden of proving causation The trial court stated in its written reasons that if the medical evidence did not clearly establish ttie burden of proof of causation the court could consider a witness subjective s complaints of pain and discomfort and find the burden satisfied if the testimony as credible consistent and corroborated Defendants assert that the trial court iricorrectly took into consideration the subjective complaints of plaintiff in determining causation Defendants correctly state the plaintiff must prove causation by a preponderance of the evidence The test for determining the causal lationship between the accident and subsequent injury is whether the plaintiff r proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident Maranto v Goodyear Tire Rubber Co 94 La 2 650 So 2d 757 759 When the conclusion 2603 95 20 garding rmedial causation is not one within common knowledge expert medical stimony is t required See Lasha v Olin Corp 625 So 2d 1002 1005 La 1993 efendants emphasize the need for medical testimony I Whether plaintiff multiple sclerosis was aggravated by the automobile s accident is not within common knowledge so this court agrees that medical stimony was t required However it is well that an appeal is taken from a settled final judgment not from written reasons for judgment that are the trial court s explanations of determinations made It is however not improper for the court of appeal to consider written reasons for judgment in determining whether the trial court erred State in the Interest of Mason 356 So 530 532 La App lst Cir 2d l 977 See La C art 2083 P 3 In an action to recover damages for injuries allegedly caused by another s negligence the plaintiff has the burden of proving causation by a preponderance of tre evidence that burden has been met when the entirety of the evidence both direct and circumstantial shows that the fact or causation sought to be proved is rrore probable than not Boudreaux v American Ins Co 262 La 721 264 So 2d 1 6 635 1972 rehearing Short v Plantation Management Corp 99 on 0899 a I App 1 Cir 12 781 So 2d 46 54 We note that some opinions seem 00 27 to imply that plaintiff may only meet this burden Yhrough medical testimony H owever as noted above causation is not proven exclusively through expert edical testimony but can also be proven simply through medical evidence so lung as the evidence presented by plaintiff amounts to a preponderance Holmes v Hicks 09 n1 La App 1 Cir 10 2009 WL 3454350 unpublished 0343 09 23 citing opinion Cannet v Franklynn Pest Control Co Inc 08 La App 5 Cir 56 08 29 4 985 So 2d 270 276 With regard to causation proof by direct or circumstantial evidence is sufficient to constitute a preponderance when taking the evidence as a whole s ach proof shows that the fact or causation sought to be proved is more probable ian t not Jordan v Travelers Ins Co 257 La 995 1008 245 So 2d 151 155 971 It is well settled that for a plaintiff to succeed in a tort action he must prove all the essential elements of his claim by a preponderance of the evidence Sharkey v Sterling Drug Inc 600 So 2d 701 712 La App 1 Cir writ denied 605 So 2d 1099 and 1100 La 1992 In cases where medical causation is at sue i medical certainty is not the standard Our courts have recognized that medicine is an inexact science at best but in the courts of law we must be ncerned c not with concrete and inefutable truths but rather the proper distribution of liabiliry based on the preponderance ofthe evidence Id citations omitted The defendant in Sharkey relied heavily upon the fact that none of the 4 perts e at trial was able to state unequivocally that aspirin caused the plaintiff s s Reye Syndrome The trial court relied upon the epidemiological or staristical studies despite the lack of inedical testimony to find that causation had been p roven Id F vidence on Burden of Proof The defendants rely on the fact that no doctor in the present case stated that tlie aggra of plaintiff ation smultiple sclerosis was more probably than not caused by the accident However the trial courY in its written reasons for judgment does ly r on medical testimony and states as follows The medical experts ha clearly established that it is difficult e to make a direct correlation between symptoms caused by trauma and symptoms caused by her disease but they have confirmed that symptoms of MS multiple sclerosis can be exacerbated by trauma such as an auto accident Dr Erwin even opined that trauma may cause an aggravation of MS multiple sclerosis symptoms but a difficulry or the impossibility of quantifying any direct correlation Based upon the medical evidence it is clear that prior to the accident the plaintiff was doing we11 and was progressing with objective findings of increased strength balance and coordination The medical evidence also clearly indicates a decline in plaintiff health and s increase in symptoms of pain after the accident According to Dr April Ann Erwin a neurologist who treated the plaintiff riultiple sclerosis is an autoimmune disease in which the patient own immune s system attacks the central nervous system Multiple sclerosis can cause muscle eakness changes in sensation changes in vision fatigue mood changes and c ifficulty with balance or walking Plaintiff treated with Dr Steven Cavalier a reurologist for multiple sclerosis both before and after the accident The medical racords of Dr Cavalier indicate that plaintiff first treated with him on September 22 2006 Dr Cavalier noted that the plaintiff symptoms of multiple sclerosis s first appeared following a 1997 motor vehicle accident He described the plaintiff as having difficulty walking fatigue in her legs depression and migraine Dr Cavalier was unable to be deposed or found for trial and no longer worked at the health care facility whexe plaintiff was treated 5 adaches hr On April 23 2008 Dr Cavalier noted that the plaintiff had previously used a walker but was now walking with a cane had numbness in her left arm was generally weak had an unsteady gait fatigued easily and had slurred speech a1 times Dr Cavalier also noted that the plaintiff was going to China for stem cell erapy tY Dr Jyoti S Pham a pain management physician treated the plaintiff on July 1 2008 after her stem cell therapy and before the automobile accident Dr Pham ted n that the stem cell therapy had provided increased strength and balance a lowed the plaintiff to run more easily and permitted her to build endurance Dr Pham also noted that the plaintiff was working with an acupuncturist and a p ersonal trainer Dr Cavalier saw the plaintiff on September 16 2008 prior to the accident e I noted that the stem cell infusions had been quite successful The plaintiff was having no problems with balance or gait had no focal or lateralized weakness d a had migraines once ar twice a week After the accident plaintiff saw Dr Cavalier on March 17 2009 and she itidicated a recent attack of optic neuritis a history of a motor vehicle accident neck and back pain daily headaches and an unsteady gait Dr Cavalier referred plaintiff to Dr Pham who treated the plaintiff three days later The plaintiff ported increased pain levels increased headaches and the episode of optic r neuritis and advised Dr Pham of the motor vehicle accident Dr Pham testified that multiple sclerosis can by aggravated by stress and trauma Dr Pham also testified that when she saw the plaintiff on July 1 2008 proximately a six months prior to the accident the plaintiff had undergone stem c ll therapy and e increased strength balance running and endurance Dr ibited Pham also saw the plaintiff on October 1 2008 At that time the plaintiff main s mplaint cwas chronic headaches and neck pain but the plaintiff was attempting to 6 ase ce the preventive medication she took for the headaches due to her iniprovement following the medication acupuncture and stem cell therapy After tbe accident Dr Pham saw the plaintiff on March 20 2009 and the plaintiff irdicated she had had another episode of optic neuritis Dr Pham had treated the p aintiff for optic neuritis in 2007 and plaintiff had had no other complaints until tte accident in 2009 The plaintiff also informed the doctor that her headaches had come b warse since the accident Dr Pham testified as follows Q Okay Do you have any opinion as to whether or not the trauma exacerbated any of her MS multiple sclerosis symptoms A It would be hard for me to make a direct correlation on that Although per her statement she had said that her headaches had worsened after the accident Dr Erwin a neurologist who only began treating plaintiff in 2012 testified on behalf of plaintif Dr Erwin testified that she did not find it unreasonable for a patient with multiple sclerosis to have worsening of symptoms following a traumatic incident such as a car accident but that she could not quantify the amount of disability connected to the incident Dr Erwin was asked on several occasions regarding causation In the first instance she testified as follows Q Is it possible for some stressful event to cause a person to have a worsening in their MS multiple sclerosis symptoms as they perceive them A I would not find it unreasonable for a patient to come in and say that they felt worse after a traumatic incident however it would be impossible to quantify any particular amount ofdisability that might be connected to that incident r I Erwin again testified as follows Q Is there any correlation between stress and traumatic events such as a car accident in this case that would cause an aggravation of MS multiple sclerosis A It would not be unusual for me to have a patient come into the office and tell me that they endured a stressful life event and felt worse However I would not be able to quantify the correlation between the event and the subjecrive way that the patient felt 7 Dr Erwin was again asked about correlating an accident to a stressful event and stated Q Okay I got kind of carried away on the end there Can we say with reasonable medical certainty that there can be an aggravation of MS multiple sclerosis as a result of some significant traumatic event A I think it reasonable to say that if a patient came to me after a s traumatic event and said that they felt worse I would have no trouble believing that that would be the case but I don tthink we have documented evidence to support a quantifiable change that could be expected from a tratunatic life event in multiple sclerosis Dr Erwin stated that she could not state with certainty that the automobile accident caused an aggravation of the plaintiff multiple sclerosis symptoms and she could s not quantify the amount of aggravation that may be due to multiple sclerosis In cases where medical causation is at issue medical certainty is not the andard s Starkey 600 Sa 2d at 712 Because medicine is an inexact science it i the proper distribution of liability based on the preponderance of the evidence ith which courts are concerned Id To require plaintiff to prove defendant s negligence to acertainty is to require him to prove it to such degree reasonable as to leave no reasonable doubt which is equivalent to saying that he must prove it beyond a reasonable doubt Lasha 625 So 2d at 1005 The court finding regarding causation is a finding of fact and must be s viewed under the manifest error standard Johnson v State through Dept of r ublic Safety and Corrections 95 La App 1 Cir 10 671 So 2d 454 0003 95 6 457 writ denied 95 La 1 667 So 2d 522 Paul v Louisiana State 2666 96 5 mployees Group Ben PNOgram 99 La App 1 Cir 5 762 So 2d 0897 00 12 136 142 The two test for the appellate review of a trial court factual 43 part s f nding is 1 whether there is a reasonable factual basis in the record far the f nding of the trier of fact and 2 whether the record further establishes that the 8 iding fi is not manifestly erroneous Mart v Hill 505 So 2d 1120 1127 La 1987 Thus if there is no reasonable factual basis in the record for the trier of s fact finding no additional inquiry is necessary to conclude there was manifest error However if a reasonable factual basis exists an appellate court may set ide a a factual finding only if after reviewing the record in its entirety it termines dr the factual finding was clearly wrong See Stobart v State through tof ep Transp and Dev 617 So 2d 880 882 La 1993 Moss v State 07 1686 La App 1 Cir 8 993 So 2d 687 693 writ denied 08 La 11 08 2166 08 14 996 So 2d 1092 We conclude that the trial court correctly held that medical causation was oven p by a preponderance of the evidence In 5haNkey medical experts were unable to state unequivocally that aspirin caused the plaintiffs Reye syndrome s Eowever the court held that proof of inedical causation to a certainty is not quired rf Sharkey 600 So 2d at 712 The court also took into consideration epidemiological or statistical studies and testimony as to the plaintiff symptoms s 1 at 713 Therefore the court concluded that all of the evidence established more probable than not that the aspirin caused the plaintiff condition s In Durrett v State ofLouisiana 416 So 2d 562 568 La App 1 Cir 569 rits N denied 421 So 2d 247 248 and 251 La 1982 the plaintiff complained ast j as the plaintiff does in the present case that her multiple sclerosis was aggravated by an automobile accident The plaintiff treating physician did testify s tliat the plaintiff aggravated symptoms were accident related and caused by the s extreme physical and emotional stress she endured as a result of the accident Therefore the court held that the worsened condition of the plaintiff was more robably than not caused by the accident In the present case the trial court took into consideration the medical stimony tthe medical records and the testimony of the plaintiff to determine that 9 iusation c was established more probably than not Even if the subjective complaints of the plaintiff were not considered the medical evidence is sufficient for plaintiff to have carried her burden of proof as to causation Dr Pham testified at tt multiple sclerosis can be aggravated by stress Relying on the plaintiff s complaints she found the headaches were worsened by the accident Dr Erwin ated s numerous times that it was reasonable for a multiple sclerosis patient to feel orse after a traumatic incident or a stressful life incident The medical records of Dr Cavalier note the physical symptoms of the plaintiff before receiving stem cell ierapy t after stem cell therapy and after the accident The records show the s plaintiff multiple sclerosis symptoms improved with the stem cell therapy and tlien got worse after the accident Given the medical evidence of Dr Cavalier combined with the medical testimony of Drs Erwin and Pham the trial court was not unreasonable in finding that the accident aggravated plaintiffls multiple sclerosis We find no manifest error in the trial court finding of inedical s causation DAMAGES Defendants assign as errar that the damages were excessive and that plaintiff ia not entitled to the general damages of 35 awarded by the trial court An 000 appeal court should rarely disturb an award of damages since great discretion is ested in the trial court Youn v Maritime Overseas Corp 623 So 2d 1257 La 1993 cert denied 510 U 1114 114 S 1059 127 L 379 1994 It is S Ct 2d Ed settled vell that a judge or jury is given great discretion in its assessment of cuantum Guillory v Lee 09 La 6 16 So 3d 1104 1116 See 0075 09 26 17 a I C art 2324 Furthermore the assessment of quantum or the appropriate 1 amount of damages by a trial judge ar jury is a determination of fact that is entitled to great deference on review Wainwright v Fontenot 00 La 0492 l 0774 So 2d 70 74 00 17 10 The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award but rather to review the exercise of d scretion by the trier of fact Wainwright 774 So 2d at 74 Youn 623 So 2d at 1161 The initial inquiry by the appellate court is whether the award is a clear abuse of that much discretion of the trier of fact Youn 623 So 2d at 1260 Reasonable persons frequently disagree about the measure of general damages in a rticular pcase Youn 623 So 2d at 1261 Only after it is 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 Defendants specifically assert as errar that the plaintiff was awarded excessive general damages As stated above this court will not overlurn the issue of damages absent an abuse of discretion Defendants have pointed to no abuse of discretion on the part of the trial court with regard to damages Given that this court fmds there was no manifest error in the trial court finding of causation we s do not find the trial court abused its discretion in awarding plaintiff 35 for 000 both soft injuries and aggravation ofmultiple sclerosis tissue CONCLUSION For the foregoing reasons the judgment of the trial court is affirmed Costs cf the appeal are assessed to defendants Zachary Fladmo and Safeco Insurance Company of Illinois AFFIRMED 11
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