Opinion
NUMBER 2011 CA 2358
09-21-2012
BRENDYIA FORD, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, DERRICK FORD v. MILTON LEE MOSBY, JR., LOWE'S HOME CENTERS, INC. AND AMERICAN HOME ASSURANCE COMPANY
Craig J. Fontenot Baton Rouge, LA Counsel for Plaintiffs/Appellees Brendyia Ford, individually and on behalf of her minor child, Derrick Ford Paul J. Politz B. Scott Cowart D. Scott Rainwater Baton Rouge, LA Counsel for Defendants/Appellants Milton Mosby, Jr., Lowe's Home Centers, Inc. and American Home Assurance Company
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Suit Number 563,561
Honorable Wilson E. Fields, Judge
Craig J. Fontenot
Baton Rouge, LA
Counsel for
Plaintiffs/Appellees
Brendyia Ford, individually and
on behalf of her minor child,
Derrick Ford
Paul J. Politz
B. Scott Cowart
D. Scott Rainwater
Baton Rouge, LA
Counsel for
Defendants/Appellants
Milton Mosby, Jr., Lowe's
Home Centers, Inc. and
American Home Assurance
Company
BEFORE: CARTER, C.J., GUIDRY, AND GAIDRY, JJ.
GUIDRY, J .
The defendants in this personal injury suit based on a rear-end collision appeal a JNOV granted by the trial court increasing the jury's award of damages to the plaintiff motorist. For the following reasons, we vacate the JNOV granted by the trial court and reinstate the jury's award of damages.
FACTS AND PROCEDURAL HISTORY
On May 10, 2007, Milton Lee Mosby, Jr., while driving a 2006 Chevrolet delivery truck in the course and scope of his employment with Lowe's Home Centers, Inc. (Lowe's), failed to properly apply his brakes and collided with the rear of a 2000 Chevrolet Metro being driven by Brendyia Ford. Mrs. Ford's son, Derrick Ford, was riding as a passenger in her vehicle at the time of the collision. The delivery truck was owned by Lowe's.
The accident occurred at the intersection of South Flannery Road and Old Hammond Highway in Baton Rouge, while Mrs. Ford was stopped at the signal light. Mrs. Ford declared that she felt a slight discomfort in her neck and back immediately following the accident. A family member came to the scene of the accident and drove Mrs. Ford's car home. Later that day, Mrs. Ford went to the emergency room at Ochsner Medical Center in Baton Rouge, where she reported complaints of headache, neck pain and back pain. She was diagnosed with neck and thoracic sprains and prescribed narcotic pain medications, Flexeril and Loritab, upon discharge; however, Mrs. Ford continued to suffer pain in her neck and back that radiated to her extremities, so she sought additional medical treatment.
On January 29, 2008, Mrs. Ford filed a petition for damages against Mr. Mosby, Lowe's, and the automobile liability insurer for Lowe's, American Home Assurance Company (collectively "defendants"). The defendants requested a trial by jury, and as a result of a consent judgment wherein Mr. Mosby and Lowe's admitted fault for the accident, only a determination of the damages sustained by Mrs. Ford as a result of the May 10, 2007 accident was presented to the jury. Following a three-day trial, the jury rendered a verdict awarding Mrs. Ford $10,000.00 for past pain and suffering, $8,730.50 in past medical expenses, and $5,000.00 for loss of enjoyment of life for the personal injuries she sustained in the May 10, 2007 accident. The jury made no awards for future pain and suffering or future medical expenses.
Mrs. Ford also asserted claims on behalf of her minor son, Derrick, in the petition, but the parties settled his claims, and by an order signed December 7, 2010, all of the claims and demands asserted on behalf of Derrick were dismissed with full prejudice.
A judgment in conformity with the jury's verdict was signed by the trial court on January 25, 2011, and Mrs. Ford filed a motion for judgment notwithstanding the verdict (JNOV) and/or a motion for new trial. Following a hearing on the motions, the trial court granted the motion for JNOV. In a judgment signed September 9, 2011, the trial court increased the awards to Mrs. Ford to the following amounts: $150,000.00 for past pain and suffering; $142,826.73 in past medical expenses; and $10,000.00 for loss of enjoyment of life. The trial court denied Mrs. Ford's motion for new trial.
The defendants have suspensively appealed the JNOV, which appeal we consider herein.
DISCUSSION
Louisiana Code of Civil Procedure article 1811(F) provides that a motion for judgment notwithstanding the verdict may be granted on the issue of liability or on the issue of damages or on both. In this case, the JNOV was granted on the issue of damages.
Typically, the standard of review of a JNOV on appeal is a two-prong inquiry. First, we must determine whether the jury verdict is supported by competent evidence and is not wholly unreasonable. Second, after determining that the trial court correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review. Goza v. Parish of West Baton Rouge, 08-0086, p. 21 (La. App. 1st Cir. 5/5/09), 21 So. 3d 320, 336, writ denied, 09-2146 (La. 12/11/09), 23 So. 3d 919, cert. denied, _ U.S. _, 130 S.Ct. 3277, 176 L.Ed.2d 1184 (2010).
In applying the first prong of the above-referenced standard of review, the Louisiana Supreme Court has stated the following principles should be considered:
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-minded persons in the exercise of impartial 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-moving party. This rigorous standard is based upon the principle that when there is a jury, the jury is the trier of fact.Lastrapes v. Progressive Security Insurance Company, 10-0051, p. 5 (La. 11/30/10), 51 So. 3d 659, 662.
An appellate court's review of a trial court's granting of a JNOV is subject to the same standards that govern the trial court's review. Stated simply, we decide whether the jury's verdict is one that reasonable people could not have rendered; 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. Department of Transportation and Development, 08-0561, p. 14 (La. App. 1st Cir. 9/12/08), 994 So. 2d 635, 644.
Based on our review, we find that the trial court erred in granting Mrs. Ford's motion for JNOV, as the record supports the jury's determinations regarding the damages awarded to Mrs. Ford. While Mrs. Ford testified and presented medical evidence to support her assertion that the sole cause of her neck and back injuries and attendant medical treatment was due to the accident that occurred on May 10, 2007, the defendants presented evidence that conflicted with Mrs. Ford's representation of the severity of the accident, the cause of her neck and back injuries, and the necessity of her medical treatment that the jury was free to consider and rely on in rendering its verdict.
At trial, the defendants presented the live testimony of the police officer who investigated the May 10, 2007 accident and of Mr. Mosby and Mr. Mosby's coworker, who was riding in the delivery truck with Mr. Mosby at the time of the May 10, 2007 accident. The investigating police officer, Sergeant Devin Washington of the Baton Rouge Police Department, testified based on his review of the accident report he completed relative to the May 10, 2007 accident. Sergeant Washington stated that Mrs. Ford informed him that she was sitting at the red light when her vehicle was struck from behind by the vehicle driven by Mr. Mosby. In turn, Sergeant Washington stated that Mr. Mosby told him that he had looked down to pick up something in his truck when he took his foot off of the brake and "kind of rolled" into the rear of Mrs. Ford's vehicle. Sergeant Washington estimated that Mr. Mosby "couldn't have been going no more than a mile-an-hour," because as he explained, "you can't put half mile, so you have to start at one. So being that he wasn't stopped that far behind [Mrs. Ford] and the car appeared to just kind of rolled and tapped her, it couldn't have been no more than that, because it didn't do any damage to the car." Sergeant Washington inspected both vehicles and did not find any damage to either vehicle.
In their testimony, both Mr. Mosby and his co-worker, Henry Wright, stated that they were looking for a cell phone inside the truck when the collision occurred. Mr. Wright testified that when Mr. Mosby leaned over to look for the phone, his foot "eased up off the brake just a little bit," which allowed the truck to move, but Mr. Wright said they could not feel the truck moving, "[t]hat's how slow it was moving." As Mr. Wright explained, ;'[w]e just inched up to the back other vehicle. And when I looked up, I said, Milton, you. on the back of that vehicle." Mr. Mosby likewise testified that he was "bending over and stuff, my foot just gradually just, you know, off the brake, and we rolled into Mrs. Ford."
In contrast, Mrs. Ford testified that she heard the squeal of the delivery truck's brakes prior to impact, and only admitted that Mr. Mosby "may have been" completely stopped behind her vehicle before the delivery truck moved forward and impacted her vehicle when she was challenged with statements from her deposition, wherein she stated that the delivery truck had come to a complete stop behind her vehicle prior to impact. The defendants also highlighted portions of Mrs. Ford's medical records where she had reported to her treating physicians that the delivery truck was possibly traveling at a speed of five to ten miles per hour at the time of impact and that her vehicle had sustained $2,000.00 worth of damage. She admitted that she never had her vehicle inspected by a mechanic or repair shop. She also claimed that there were "spider web" like cracks in her rear bumper and that the bumper was coming down on the sides, despite the fact that these alleged defects were not apparent in the photos Mrs. Ford took of her bumper on the date of the accident. She stated that the reflection of the sunlight off the bumper in photos kept the alleged defects from being visible. The photos were offered into evidence by the defendants.
Except for the testimony of Dr. Luan Pham, Mrs. Ford's family physician, and Dr. Jeffrey Rippel, Mrs, Ford's treating chiropractor, whose testimony was presented live at trial, the remainder of the physicians that treated or evaluated Mrs. Ford was presented to the jury via their video depositions. The other physicians who treated Mrs. Ford, and whose deposition testimony was offered at trial, were Dr. Gregory Williams, an orthopedic surgeon practicing in Opelousas, Louisiana; Dr. F. Allen Johnston, an orthopedist who practices in Baton Rouge; and Dr. Arnold Feldman, a pain management physician practicing in Baton Rouge. All of Mrs. Ford's treating medical providers testified that based on the history given to them by Mrs. Ford, they related all of her complaints of back and neck pain, and the attendant medical treatment, to the May 10, 2007 accident. However, they all stated that they did not see Mrs. Ford's records from her other medical providers and that Mrs. Ford failed to inform them of the two subsequent accidents she had during the course of her treatment.
The first accident occurred when Mrs. Ford fell at her home on October 21, 2007. She went to the emergency room at Ocshner following the fall and complained of back pain. She was diagnosed with a contusion or bruise to her left hip as a result of the fall. The second accident occurred on December 1, 2008, on Florida Boulevard in Baton Rouge. While traveling at an estimated speed of 50 to 60 miles per hour, a vehicle side swiped Mrs. Ford's vehicle when the driver of the other vehicle, Linda Banks, attempted to enter the left lane in which Mrs. Ford was traveling in order to pass a third vehicle, Mrs. Ford again went to the emergency room at Ocshner following the December 1, 2008 car accident, reporting complaints of back pain. According to Mrs. Banks' video deposition testimony, presented at. trial by the defendants, both vehicles sustained damage as a result of the collision.
In addition to highlighting Mrs. Ford's failure to disclose her subsequent accidents, the defendants also pointed out that the medical records of Dr. Pham and Dr. Rippel indicated Mrs. Ford's back and neck complaints were essentially resolved prior to her second accident on October 21, 2007. Dr. Pham saw Mrs. Ford four times in the period following the May 10, 2007 accident, but before the October 21, 2007 fall. Only the first two visits were relative to injuries from the May 10, 2007 accident. The other two visits were for unrelated medical complaints. Dr. Rippel rendered chiropractic treatment to Mrs. Ford relative to the May 10, 2007 accident from May 21, 2007 to September 19, 2007, at which time Mrs. Ford's back and neck complaints appeared to have resolved, with Mrs. Ford's rating of her pain having decreased down to a one on a scale of zero to ten.
Mrs. Ford stopped treating with Dr. Rippel, or any medical provider, from September 19, 2007 until January 28, 2008. On her January 28, 2008 return to Dr. Rippel, he noted that her pain had "flared" to a rating of 8 or 9, with numbness in her arms and legs. Drs. Williams, Johnston and Feldman all recognized that the subsequent accidents could have re-injured or exacerbated the injuries to Mrs. Ford's back and neck, but relying on what they were told by Mrs. Ford, they determined that there were no changes to Mrs. Ford's condition after the subsequent accidents.
Notably, Drs. Johnston, Pham, and Rippel all related that Mrs. Ford complained more regarding back pain than neck pain while being treated by them, and they all treated Mrs. Ford prior to the December 1, 2008 accident. Dr. Williams said Mrs. Ford complained more regarding her neck when she initially sought treatment from him. Dr. Williams first saw Mrs. Ford on November 20, 2008, and he ordered discograms of her cervical spine, performed on December 15, 2008(which was supposed to be performed on December 1, 2008, but the motor vehicle accident she was involved in that day caused the postponement), and lumbar spine, performed on December 8, 2008. Dr. Williams recommended neck surgery (an anterior cervical decompression fusion) following his review of the December 15, 2008 cervical discogram.
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Dr. Randall Lea, an orthopedist hired by the defendants to examine Mrs. Ford, found otherwise. In preparation for his October 22, 2008 examination of Mrs. Ford, Dr. Lea reviewed Mrs. Ford's complete medical history. He said during that visit, Mrs. Ford complained of cervical and lumbar discomfort, but with greater emphasis given to her back pain than her neck pain. Based on his examination of Mrs. Ford and his review of her medical records, Dr. Lea concluded that Mrs. Ford should have reached maximum medical improvement roughly four months following the May 10, 2007 accident. He noted that by looking at Mrs. Ford's medical treatment following the May 10, 2007 accident, a vast majority of her history suggests that she received treatment that seemed to improve her condition right around three to four months post injury, particularly in the medical records of Dr. Rippel for the first few months following the May 10, 2007 accident. Dr. Lea also opined that he would not relate Mrs. Ford's return to Dr. Rippel for further treatment in January 2008 to the May 10, 2007 accident, because she had suffered the second accident on October 21, 2007. It was during that second round of chiropractic treatment that Mrs. Ford was ultimately referred for orthopedic treatment.
At the time of his examination of Mrs. Ford, Dr. Lea did not find her to be a surgical candidate for either her neck or back, and he observed that she did not receive a surgical recommendation until after her December 1, 2008 car accident. More notably, Dr. Lea, like Dr. Johnston, found that based on the MRI scans that Dr. Johnston had ordered during his treatment of Mrs. Ford, the only cervical disc that showed any significant problem was the C6/7 disc; however, in the surgery performed by Dr. Williams, he removed the discs at the C4/5 and C5/6 levels. As Dr. Lea explained, the fact that Dr. Williams did surgery on C4/5 and C5/6, as opposed to C6/7, strongly suggests that there must have been something else that happened subsequent to the time that he saw her, which he suggests was the December 1, 2008 accident. Dr. Lea discredited Mrs Ford's assertion that the October 21, 2007 and December 1, 2008 accidents did not cause any injury to her neck or back by observing that if the May 10, 2007 accident could cause her to have neck and back pain, then the subsequent accidents could have caused the same pain.
Similar to the matter before us, in Lastrapes, the jury awarded the plaintiff motorist past medical expenses and past pain and suffering, but declined to award the motorist or his wife any damages for future medical expenses, future pain and suffering, past mental anguish, loss of enjoyment of life, loss of consortium, or statutory penalties and attorney fees. Lastrapes, 10-0051 at pp. 3-4, 51 So. 3d at 661. Pursuant to the plaintiffs' motion, the trial court granted a JNOV in part to award the plaintiffs penalties and attorney fees based on its finding that the plaintiffs' insurer was arbitrary and capricious in its handling of the their UM claim. Lastrapes, 10-0051 at p. 4, 51 So. 3d at 661-62. On appeal, the appellate court affirmed the partial JNOV granted by the trial court, but it further rendered a JNOV to grant the plaintiffs an award of all the remaining damages that were sought. Lastrapes, 10-0051 at pp. 4-5, 51 So. 3d at 662.
The Louisiana Supreme Court reversed the JNOV rulings of both the trial and the appellate courts. Lastrapes, 10-0051 at p. 10, 51 So. 3d at 665. Like in the matter before us, it was questioned whether the surgical recommendation the plaintiff motorist received was caused by the 2004 accident that was the basis for the underlying suit, or whether it was due to a later accident that occurred in 2006, which the plaintiff motorist did not disclose to his treating physicians. The insurance claims adjustor refused to make an unconditional UM tender for the recommended surgery because a 2005 MRI of the plaintiff motorist did not reveal the injuries diagnosed by the orthopedic surgeon who recommended surgery, and because the frequency of treatment by the plaintiff motorist increased following the 2006 accident. Lastrapes, 10-0051 at pp. 6- 7, 51 So. 3d at 663.
The court further observed that the jury was presented with conflicting evidence as to the actual injuries sustained by the plaintiff motorist. Two sets of MRI scans were performed on the plaintiff motorist: the first set in 2005, and the second set in 2007. The radiologist who reviewed the MRI films reported that there was no disc herniation, whereas the plaintiff motorist's treating orthopedic surgeon concluded that the MRI films did reveal disc herniation, which was the basis for his recommending that the plaintiff motorist have neck surgery. Lastrapes, 10-0051 at pp. 2-3, 51 So. 3d at 66 L Accordingly, the supreme court found that the evidence was sufficient for the jury to conclude that the plaintiffs' UM insurer acted in good faith in refusing to make a tender of benefits and for finding that the plaintiffs were not entitled to the additional damages sought. Lastrapes, 10-0051 at pp. 7, 51. So. 3d at 663.
Likewise, we find that based on the conflicting medical opinions in the record, and the failure of Mrs. Ford to be completely candid with her treating physicians by not disclosing subsequent accidents, we cannot say that the facts and inferences point so strongly and overwhelmingly in favor of Mrs. Ford that reasonable jurors could not arrive at a contrary verdict. Accordingly, we conclude that the JNOV granted by the trial court should be reversed and the original judgment rendered by the trial court in conformity with the jury's verdict should be reinstated.
CONCLUSION
For the foregoing reasons, we reverse the September 9, 2011 judgment of the trial court granting the plaintiff a JNOV, and reinstate the trial court's January 25, 2011 judgment. All costs of this appeal are cast to the appellee, Brendyia Ford.
JNOV REVERSED; JANUARY 25, 2011 JUDGMENT REINSTATED.