Lorenza A. Savage and Jeremy Andras VS Neda W. Guidry, Seacor Marine, LLC and American Home Assurance Company
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NOT DESIGNATED FOR PUBLICATIO T STATE OF LOUISIANA COLRT OF APPEAL V FIRST CIRCtiIT NUMBER 2013 CA 1405 LORENZA A. SAVr GE ND JERE IY ANDRAS VERSUS NEDA W. GUIDRY, SEACOR MARINE, L.L.C. , AND AMERICAN HOME ASSURANCE COMPANY Judgment Rendered: MAR 2 1 2014 Appealed from the Seventeenth Judicial District Court In and for the Parish of Lafourche, Louisiana Docket Number 104416 Honorable Fe Hugh I., rose, Judge Presiding a x:* x:; r* Damon J. Baldone Counsel for Plaintiff/2" d Appellant Patricia Reeves Floyd Lorenza A. Satiage Connie L. Johnson Clinton B. Schexnayder Houma, LA Paul A. Eckert Counsel for Defendants/ Ist Appellants New Orleans, LA Neda W. Guidry, Seacor Marine, L.L.C. , and American Home Assurance Company A'] F iF] F' k' A" iC' A" k iC' k' h' iC BEFORE: WHIPPLE, C. J., VVF,LCH, AND CRAIN, JJ. WHIPPLE, C.J. This lawsuit arises out of a motor-vehicle accident. The parties stipulated that the defendant driver was solely at fault in causing the accident. Thus, the only issues at the trial on the merits were the e} cteni of plaintiffls injuries caused by the accident and damages. After a jury trial, the jur5 awarded plaintiff$ 868, 000.00 for general and special damages. Plaintiff and defendants both appealed. For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY On September 1, 2005, plaintiff Lorenzo Savage was employed by the Lafourche Parish Sheriff' s Office and was responding to a call after Hurricane Katrina, when he was involved in an automobile accident at the intersection of Louisiana Highway 308 and Louisiana Highway 654 in Lafourche Parish, Louisiana. While attempting to make a left-hand turn, and preempting the intersection, plaintiff' s vehicle was struck by a vehicle being operated by defendant Neda Guidry and owned defendant SeaCor Marine, L.L. C. by On August 28, 2006, Ms. Savage filed suit for damages resulting from the accident, naming as defendants: Neda Guidry, SeaCor Marine, L.L.C., and American Home Assurance Company as the insurer of SeaCar Marine, L.L.C. Prior to the trial on the merits, plaintiff and defendants agreed and stipulated that the defendant driver, Ms. Guidry, was liable for causing the accident. A jury trial on the issues of causation of plaintiff' s injuries and the extent of her damages was conducted on April 15 and 16, 2013. DISCUSSION At trial, the issues of causation of plaintiff' s injuries, and the nature and extent thereof, were strongly contested. Determining the cause of plaintiffls At the time of the accident, Ms. Guidry was acting within the course and scope of her employment with SeaCar Marine, L.L.C.. 2 injuries was complicated by the fact that she has suffered with Neurofibromatosis NF") since she was thirteen years o1d.2 However, the only witnesses called to testify at the trial were plaintiff and plaintiffls treating neurologist, Dr. Donald Gervais, who opined that her injuries and the exacerbation of her NF were caused by the accident. After hearing and considering Yhe testimony of plaintiff and her attending physician, Dr. Donald Gervais, the jury awarded plaintiff damages as follows: Past Medical Expenses 44, 00. 00 Future Medical Expenses 176, 000. 00 Past Pain 92, 000. 00 Suffering and Suffering and Future Pain 50, 000. 00 Past Mental Anguish 10, 000. 00 Future Mental Anguish 5, 000. 00 0. 0 Life Loss of Enjoyment Loss of Past Wages 216, 000. 00 Loss of Future Wages 275, 000. 00 of A written judgment in accordance with the jury' s verdict was signed on April 29, 2013. From this judgment, both defendants and plaintiff appeal. On appeal, defendants challenge only the awards for future medical expenses and loss of future wages, contending that said awards are too high and not supported by the evidence. However, plaintiff contends on appeal that the awards for future medical expenses and future loss of wages are too low, and that the general damage award for past and future pain and suffering, past and future mental anguish, and loss of enjoyment of life are inadequate. Plainriff testified that as a result of this accident, she sustained injuries to her neck, back, and left arm and has been unable to return to her job. At trial, plaintiff candidly acknowledged that she sought treatment for neck and back pain prior to this accident, but she described her pre- accident pain as " soreness and stiffness . . . ZNeurofibromatosis (" NF"), also known as elephant man disease, is an inherited disorder that causes bumps or growths on the nerves, which may grow large enough to impair the nerves and require surgical removal. 3 from everyday activities" from stress ar d physical activiry, whereas after the accident, the pain was more and severe constant. Plainiiff testified that she underwent nerve conduction tests before this accident that showed no damage, whereas the tests after the shovyed accident Gervais had informed her that her pain is Plaintiff related that Dr. damage. permanent, and that two other physicians, with whom she had surgical consultations, also said that ivhile her pain will get worse tl rough the years, surgery is not an option at this point. At trial, Dr. Gervais readily acknowledged that priar to this accident, plaintiff had presented with complaints of low back and neck pain. However, based on his examination and findings, as well as plaintiffls medical history, he concluded that her overall condition was worse after the accident and that her complaints were for injuries related to the motor- vehicle accident. In particular, a nerve test or EMG obtained after the accident revealed significant " cervical issues at C- 7 and C- 6." Dr. Gervais testified that at the time of the trial, almost eight years after the automobile accident, he was still treating plaintiff for her NF condition and her accident- related injuries. Dr. Gervais opined that it was more probable than not that plaintiff' s complaints of neck, back, and arm pain were related to the motor-vehicle accident. He noted that over the course of this time, plaintiff' s treannent has included sacroiliac injectians, epidural injections, physical therapy, and various pain medications, including Lipoderm patches. Dr. Gervais testified that he was able to distinguish what his treatments were for, i. e., whether they were accident related or were attributable to plaintiffls NF condition, explaining that the neurofibromas ( the growths caused by the NF condition) are anatomically palpable visible structures, so " its easy to figure out how much of her complaints were neurofibromatosis." really coming from post-traumatic issues or from the Accordingly, Dr. Gervais testified, approximately sixty ( 60%) to seventy- five (75%) percent of plaintiff s visits with him were related to her 4 accident related injuries and t. e resc uf her z isres were related to her NF condition and other medical issues. Standard of Retiiew It is well- settled that a jadge ar jurp is given grea? di cretion in its c, f c uantum assessment for botki 2009- 0075 ( La. 6i 6r'Q9j9 2324. 1 provides: " 16 S, en ral aracl > 3d 1 Q4, ecial dam ges. Gadll r 1116. I: ou siar. a Ca l ` v. Lee, ode article In the assessmer t c f d znages in cases of offenses, quasi offenses, and quasi contracts, nluch discretiari nnust be S. eft to the judge or jury," Furthermore, the jury' s assessment of quantum or detenninat:ton of the appropriate amount of damages is a determination of fact, w hich is entitled to great deference on appeal. Wainwri ht v. Fontenot. 2G00- 492 ( La. 10117/ 00), 774 So. 2d 70, 74. Review of the amounts awarded by the jury fur general and special damages is subject to the " abuse of discretion" standard of review, See Lei how v. Crum, 2006- 0642 (La. App. 1 st Cir. 3! 23107), 9b0 So. 2d 122, I28- 129, writs denied 2007- 1195, 2007 ¢- 12i8 ( La. 9r`211 7), Deveiopment Partnershi, 96 2007- 2418 iLa. So. 2d 337, App, l st 34I; [ Cir. 8! 21/ Q$), arris v. Delta 994 So. 2d 69, 82- 83 ( quoting Coco v. t% ston idustraes, I c., 341 Sca, zd 332, 33S (I,a. 1976)). i An appellate court, pr review, anust be cautious noq ic re- wei, l-, the evidence or to substitute its own factual #i ading just hecaase it w uld have decided tha case differently. Guillorv v. L e, 16 S, 3d at 1117. In a personal irniury suit, the plaintiff bears the burdera of proving the causal connection between an accident and the resuiting injuries. Oden v. Gales, 2006 0946 ( La. App. lst Cir. 3/ 23i07); 960 So. 2d ll4, ll8. caused the plaintiffs injuries i a factual V6' hether the accident uestion that should not be reversed on appeal absent manifest errc r. k'ena v, Delcr.a.mps, Inc., 2006--0364 ( La. App. Ist Cir. 3/ 28/ 07), 960 So. 2d 98$, 994, writ So. 2d 498. 5 denie, 2007- 0875 ( La. 6122% 0%), 959 With determine prXr,ciples igz these whether the jury' e nciind, revietiv thz avidence iarriage awarcls are conLxa r}- oi record to tn the evidence or constitute an abuse ofttze bro d discration af orded t the iury, Future Medical Expense Defenclants first cont nd that, basad c r the e idence lacked future sufficient medical evidence expenses. tc s apportt ri awar c plainri f rese i?ed, t'he jury c f' 176, OOQ. 00 for Plaantiff c unters that an av ard or future medical expenses of at least $ 300, 000. 00 is warranted. A tort victim may ordina ily recover nnediaal expenses, past and uture, that he incurs as a result of an injury b4enard v. , af3Y"ette Insurance Compan, 2009 1869 ( La. 3116/ 10); 31 So. 3d 996, 14Q6. However, th plairztiff m.ust prove, by a preponderance of the evidence, the exist nce of the injuries and a causal connection between the injuries La. App. nd the accident. Yohn v. Brandon 2001- 1896 lst Cir. 9/ 27/ 02), 835 So. 2d 580, 584, writ denied, 2002- 2592 ( La. 12/ 13! 02), $ 31 So.2d 989. The test to determine if that burden has been met is whether the plaintiff has establish d th roagh rnedi al testirr.otry that it is more probable than not that the zn uriws were cauaec by tne acci:dent. Yohr v. Brandon, 835 So. 2d at 584. plaintiff satisfied After car fully ac nsiderSng the record h rein, we find that her burdlen f proof. As . neted a ov ¬, Dr. Gervais specifically testified that it is more prvbable than not tfiat plaintiff' s neck, back, and arm pain were related to or caused by the accident. Vioreover, defendants did not offer any conflicting expert testimony regardii g fne cause of plaintiff' s injuries or the need and costs for her future medical care, relying only or. their cross- examination of plaintiff and Dr. Gervais. Further, as thas court has pre-viously noted; a reviewing court shouid not reject an award of future medical experASes on the basis that t`ie record does not r provide the exact value of the necessary expenses unless the court cannot 6 determine from evidence of past medical ex enses and other evidence a minimum amount that reasonable minds couta not disagree will be r qaired. Hollenbeck v. Oceaneerin Intern., Inc., 96- 0377 (La. App. lst Cir. ll/8/ 96), 685 Sa.2d 163, 178, writ 421. 97), 692 So. 2 denied, 97- 0493 ( La. 4/ 4,` After reviewing the record herein, we find that there was sufficient evidence and testimony to support the jury' s determination as to the reasonable amount due plaintiff for future medical expenses. Dr. Gervais testified that in the future, plaintiff will continue to undergo the same types of treatment that she has had to undergo in the past and that activity will cause her condition to worsen. Dr. Gervais also testified that plaintiff' s future medical care would cost $ 5, 000. 00 to $10, 000. 00 a year for office visits, plus medications that cost approximately $ 1, 500. 00 a year. He further noted that " as far as the motor vehicle accident related issues," there is probably a fifty (50%) percent chance of surgery in the next ten years and plaintiff may need additional injections or a spinal cord stimulator, at a cost of $10,000. 00 to $ 30, 000. 00, for pain. Considering this testimony and the evidence in the record, we find that the jury' s award of$ 176, 000. 00 far future medical ehpenses is amply supported by the record and does not constitute an abuse of discretion.3 Likewise, on review, we are unable to find that the future medical expenses should be increased to at least 300, 400. 00, as plaintiff contends. These assignments of error lacic merit. Loss of Future Wages Defendants next contend that the award of$ 275, 000. 00 for future lost wages should be reversed for lack of evidence as there was no evidence from a vocational rehabilitation specialist Qr an economist, Plaintiff counters that the amount awarded for future lost wages should be increased to $ 1, 125, 000. 00. 3We note that plaintiff was thirty-nine( 39) years old at the time of.the,trial. 7 At the time of this accident, plaintiff was working as a juvenile detective, approximately earning $ 27, OOO. UO per year according to her tax returns. Approximately one month after the accident, Dr. Gervais took plaintiff off of all work duties. Later, he lso ordered plaintiff to undergo a functional capacity examination. The functional capacity exam shc wed that plaintiff had considerable weakness in her left-hand and a limited ability to rezurn to work, with restrictions that include no prolonged sitting and no lifting. At the time of the trial, plaintiff was receiving disability payments and food stamps.4 In order to obtain an award for impaired earning capacity ( or future loss of wages) and for future medical expenses, a claimant must present medical evidence which at least indicates there could be a residual disability casually related to the accident. Bize v Bover, 408 So. 2d 1309, 1311- 12 ( La. 1982). We find that plaintiff sarisfied this burden of proof as Dr. Gervais testified that plaintiff's neck, back, and arm will slowly decline in the future. He further stated that it is difficult for plaintiff to sit for any prolonged period of time, and that as a result, it is hard for her to maintain a job. Notably, defendant did not offer any contradictory evidence. Moreover, it is well- established that awards for loss of income are speculative by nature and cannot be calculated with ma hematical certainty. Therefore, the trial court necessarily must have much discretion in fixing lost wage awards. Nielsen v. Northbank Towin, Inc., 1999- 1118 ( La. App. lst Cir. 7/ 13/ 00), 768 So. 2d 145, 163, writ denied, 2000- 2423 ( La. 11/ 3/ 00), 773 So. 2d 149. Given pIaintiff' s age, her past earnings, and the uncontradicted testimony regarding her physical limitations, we are unable to find that the jury abused its discretion in awarding plaintiff $275, 000.00 for loss of future wages. Thus, we 4The evidence introduced into the record included plaintiff' s functional capacity exam and her application for disability benefits that was completed by Dr. Gervais. 8 reject the defendants contention on appeal that the award should be set aside as excessive and However, we also find that pa.aintiff' s request to unwarranted. increase the award to $ 1, 125, 000. 00 is not warranted. These assignments of errar also lack rrAerit. General Damage Award On appeal, plaintiff asserts three additional assignments of error concerning the amount awarded far general damages. Plaintiff contends that: 1) the awards of 92, 00o. 00 for past pain and suffering and $50, 000.00 for future pain and suffering should be increased to $ 366, 000. 00 and $ 200, 000. 00, respectively; 2) the awards of $10, 000. 00 far past mental anguish and $ 5, 000. 00 in future mental anguish should be inareased to a total amount of $300, 000. 00; , and 3) an appropriate amount should be awarded for loss of enjoyment of life. The trier of fact is accorded much discretion in fixing general damage awards. LSA-C.C. art. 2324. 1; Cheramie v. Horst, 93- 1168 ( La. App. lst Cir, 5/ 20/ 94), 637 So. 2d 720, 723. The discretion vested in the trier of fact is great, even vast, so that an appellate court should rarely d'zsturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So. 2d 1257, I261 (La. 1993), cert. denied S10 U.S. 1114, 114 S. Ct. 1059, 127 L. Ed.2d 37y ( 1994). General damages are those which are inherently speculative in nature and cannot be fixed with mathematical certainty, including damages for pain and suffering. Wainwright v. Fontenot, 2000- 0492 ( I.a. 10/ 17100), 774 So. 2d 70, ? 4. The role of an appellate court in reviewing a general damage award 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. Bouquet v.Wal Mart Stores, Inc., 2008- 0309 ( La. 4/ 4/ 08), 979 So. 2d 456, 459. In the instant case, the jury herein heard two days of testimony and was also able to review extensive evidence that was inxroduced into the record, including 9 plaintiff' s lengthy medical tecoYds, Bas d on oui revie of this testimony and evidence, we are unable to say that the j ary abnsed zts dis. reiion in its general damage award, plaintif£ As suc. we n ed not Ioc k io prioz awards, as suggested by Qnl;%after finding that tlic award constittztes an abuse o c iscretion is a resort to pri.or vva`ds approgria: e afl d t er: c? rzl; ftor tkie purp ¬se « fi deterrnin?ng the highest or lowest point which is measoaaably vv tt-i n that discr t crg. o7an, 623 So. 2d at 1260 ( citing Coco v, Winstor Industries. Inc., 341 So.2d 332 ( La. 1976)). Accordingly, we reject as meritless these asssgnments of error by the plainitff. CONCLUSION For the above and foregoing reasons, the Apri129, 2013 judgment of the trial court is hereby affirmed. Costs of this appeal are assessed equally agaixist piaintiff and defendants. AFFIRMED. 10
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