Opinion
NUMBER 2013 CA 0132
2013-09-13
VENETIA GROS v. GREGORY G. OSBORN AND STATE OF LOUISIANA OFFICE OF STATE PARKS AND/OR LOUISIANA STATE MUSEUM
Vincent L. Bowers New Orleans, LA Counsel for Plaintiff/Appellant, Venetia Gros James D. "Buddy" Caldwell Attorney General John L. Dugas Assistant Attorney General Baton Rouge, LA Counsel for Defendants/Appellees, State of Louisiana, Department of Culture, Recreation and Tourism, and Gregory G. Osborn Amanda G. Clark Amy E. Newsom Baton Rouge, LA
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Twenty-Third Judicial District Court
In and for the Parish of Assumption
State of Louisiana
Docket Number 30302
The Honorable Guy Holdridge, Judge Presiding
Vincent L. Bowers
New Orleans, LA
Counsel for Plaintiff/Appellant,
Venetia Gros
James D. "Buddy" Caldwell
Attorney General
John L. Dugas
Assistant Attorney General
Baton Rouge, LA
Counsel for Defendants/Appellees,
State of Louisiana, Department of
Culture, Recreation and Tourism, and
Gregory G. Osborn
Amanda G. Clark
Amy E. Newsom
Baton Rouge, LA
BEFORE: WHIPPLE, C.J., WELCH, AND CRAIN, JJ.
WHIPPLE, C J.
This matter is before us on appeal by the plaintiff/appellant, Venetia Gros, from a judgment of the trial court awarding her damages in accordance with a jury verdict. For the reasons that follow, we amend, and as amended, we affirm the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
On the afternoon of June 19, 2006, plaintiff was involved in an automobile accident with the defendant, Gregory G. Osborn, who was operating a state-owned vehicle while in the course and scope of his employment with the State of Louisiana, through the Department of Culture, Recreation, and Tourism ("the State"). At the time of the accident, plaintiff was traveling in an easterly direction on La. Hwy. 70 in Assumption Parish, and Osborn, who was driving a 2001 Dodge Caravan, was traveling west on La. Hwy. 70. As Osborn's vehicle approached plaintiff's vehicle, he crossed the center line hitting the left side of plaintiff's vehicle, shattering her side mirror and window. Osborn told the investigating officer that he was talking on his cell phone at the time of the accident and that he did not realize he had crossed the center line. As a result of the accident, plaintiff sought treatment at the Emergency Department of Assumption Community Hospital in Napoleonville, Louisiana, for complaints of neck and lower back pain, as well as for abrasions on her left hand.
On June 14, 2007, plaintiff filed suit against Osborn and the State, as his employer, contending that as a result of the accident, she sustained bodily injuries, including but not limited to injuries to her head, neck, back, shoulder, legs, and hips. Plaintiff also sought damages for past and future mental anguish and physical suffering; past and future expenses for medical care, including expenses for travel to medical appointments; damages for loss of enjoyment of life; and past and future lost earnings and impaired earning capacity.
Plaintiff filed a first supplemental and amending petition on January 11, 2008.
The matter was tried before a jury on September 12 and 13, 2012. The defendants did not dispute liability at trial. After deliberations, the jury returned a verdict, finding that Osborn had caused the June 19, 2006 accident, and awarding plaintiff damages as follows:
Past Medical Expenses $7,500.00
Future Medical Expenses $7,000.00
Past, Present, and Future Pain and Suffering, Including Bodily Injury, Mental Anguish, and Inconvenience and Disability $20,000.00
Loss of Enjoyment of Life $2,500.00
TOTAL $37,000.00
On October 30, 2012, the trial court signed a written judgment in accordance with the jury's verdict. Plaintiff then filed the instant appeal, assigning the following as error:
Judgment was rendered in favor of plaintiff and against the State in the sum of thirty thousand dollars with interest, as specified by LSA-R.S. 13:5112, until paid, with the defendant to bear court costs, and further ordered that the defendant place the sum of seven thousand dollars into the Future Medical Fund as specified by LSA-R.S. 13:5106(B)(3) and LSA-R.S. 39:1533.2.
1. The jury erred in awarding plaintiff only $7,500.00 of her past medical expenses of $23,601.76.
2. The jury erred in awarding plaintiff only $7,000.00 of her future medical expenses for surgery costs of $69,200.76 or conservative care of $150,000.00.
3. The jury erred in awarding only $20,000.00 for past, present and future pain and suffering, including bodily injury, mental anguish, and inconvenience and disability.
4. The jury erred in awarding only $2,500.00 in loss of enjoyment of life.
5. The trial court erred in failing to include the defendant, Gregory Osborn, in the judgment.
DISCUSSION
Standard of Review
It is well-settled that a judge or jury is given great discretion in its assessment of quantum for both general and special damages. Guillory v. Lee, 2009-0075 (La. 6/26/09), 16 So. 3d 1104, 1116. Louisiana Civil Code article 2324.1 provides: "In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury." Furthermore, the jury's assessment of quantum or determination of the appropriate amount of damages is a determination of fact, which is entitled to great deference on appeal. Wainwright v. Fontenot, 2000-0492 (La. 10/17/00), 774 So. 2d 70, 74.
The role of an appellate court in reviewing such awards 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. Guillory v. Lee, 16 So. 3d at 1117. Before an appellate court can disturb the quantum of an award, the record must clearly reveal that the trier-of-fact abused its discretion in making the award. Wainwright v. Fontenot, 774 So. 2d at 74. Furthermore, in the absence of manifest error, credibility determinations 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 reasonable. Rosell v. ESCO, 549 So. 2d 840, 844 (La. 1989).
Review of the amounts awarded by the jury for general and special damages is subject to the "abuse of discretion" standard of review. See Leighow v. Crump, 2006-0642 (La. App. 1st Cir. 3/23/07), 960 So. 2d 122, 128-129, writs denied, 2007-1195, 2007-1218 (La. 9/21/07), 964 So. 2d 337, 341; Harris v. Delta Development Partnership, 2007-2418 (La. App. 1st Cir. 8/21/08), 994 So. 2d 69, 82-83 (quoting Coco v. Winston Industries, Inc., 341 So. 2d 332, 335 (La. 1976)).
Notably, reasonable persons frequently disagree regarding the measure of damages in a particular case. Guillory v. Lee, 16 So. 3d at 1117. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So. 2d at 844. An appellate court, on review, must be cautious not to re-weigh the evidence or to substitute its own factual finding just because it would have decided the case differently. Guillory v. Lee, 16 So. 3d at 1117.
In reviewing a jury's factual conclusions with regard to special damages, an appellate court must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court's conclusion, and the finding must be clearly wrong. Guillory v. Insurance Company of North America, 96-1084 (La. 4/8/97), 692 So. 2d 1029, 1032. This test requires a reviewing court to do more than simply review the record for some evidence, which supports or controverts the trial court's findings. The court must review the entire record to determine whether the trial court's finding was clearly wrong or manifestly erroneous. Guillory, 16 So. 3d at 1118. The issue to be resolved on review is not whether the jury was right or wrong, but whether the jury's fact finding conclusion was a reasonable one. Rosell v. ESCO, 549 So. 2d at 844.
In a personal injury suit, a plaintiff bears the burden of proving the causal connection between an accident and the resulting injuries. Oden v. Gales, 2006-0946 (La. App. 1st Cir. 3/23/07), 960 So. 2d 114, 118. However, it is also well settled that a defendant takes the plaintiff as he finds him and is responsible for all natural and probable consequences of his tortious conduct. Accordingly, when the defendant's negligent action aggravates a pre-existing injury or condition, he must compensate the victim for the full extent of that aggravation. Whether the accident caused the plaintiff's injuries is a factual question that should not be reversed on appeal absent manifest error. Pena v. Delchamrjs, Inc., 2006-0364 (La. App. 1st Cir. 3/28/07), 960 So. 2d 988, 994, writ denied, 2007-0875 (La. 6/22/07), 959 So. 2d 498.
With these principles in mind, we must review the evidence of record and determine whether the jury's damage awards are contrary to the evidence or constitute an abuse of the jury's discretion.
Past and Future Medical Expenses
(Assignments of Error Nos. 1 and 2)
Plaintiff first contends that the jury erred in awarding $7,500.00 for past medical expenses, when her past medical expenses totaled $23,601.76. Plaintiff further contends that the jury erred in awarding only $7,000.00 for her future medical expenses, where the cost of her anticipated surgery is $69,200.76 or, alternatively, where the cost of conservative care, is approximately $150,000.00. According to plaintiff, her past and future medical expenses were necessitated by the accident for treatment for injuries she sustained in the accident.
The State counters that the jury did not err in its assessment of such damages as plaintiff was unable to prove that the June 19, 2006 accident caused the past and future medical expenses she submitted, especially in light of her prior complaints of the same symptoms.
A tort victim may ordinarily recover medical expenses, past and future, that he incurs as a result of an injury. See Menard v. Lafayette Insurance Company, 2009-1869 (La. 3/16/10), 31 So. 3d 996, 1006. However, the plaintiff must prove, by a preponderance of the evidence, the existence of the injuries and a causal connection between the injuries and the accident. See Yohn v. Brandon, 2001-1896 (La. App. 1st Cir. 9/27/02), 835 So. 2d 580, 584, writ denied, 2002-2592 (La. 12/13/02), 831 So. 2d 989. The test to determine if that burden has been met is whether the plaintiff has established through medical testimony that it is more probable than not that the injuries were caused by the accident. Yohn v. Brandon, 835 So. 2d at 584.
Generally, the effect and weight to be given medical expert testimony is within the broad discretion of the factfinder. Yohn v. Brandon, 835 So. 2d at 584. A trier of fact may accept or reject, in whole or in part, the opinions expressed by an expert. See Harris v. State, Department of Transportation and Development, 2007-1566 (La. App. 1st Cir. 11/10/08), 997 So. 2d 849, 866, writ denied, 2008-2886 (La. 2/6/09), 999 So. 2d 785. Further, where the testimony of expert witnesses differs, the trier of fact has great, even vast, discretion in determining the credibility of the evidence, and a finding in this regard will not be overturned unless it is clearly wrong. Cotton v. State Farm Mutual Automobile Insurance Company, 2010-1609 (La. App. 1st Cir. 5/6/11), 65 So. 3d 213, 220, writ denied, 2011-1084 (La. 9/2/11), 68 So. 3d 522.
A tortfeasor is liable only for damages caused by his negligence; he is not liable for damages caused by separate, independent, or intervening causes. Hence, plaintiff herein had the burden of proving that her injuries were not the result of such separate, independent or intervening causes. Yohn v. Brandon, 835 So. 2d at 584. The trier of fact's causation finding is a factual determination that may not be set aside on appeal in the absence of manifest error. Short v. Plantation Management Corporation. 99-0899 (La. App. 1st Cir. 12/27/00), 781 So. 2d 46, 55.
Plaintiff testified that as a result of this accident, she sustained injuries to her neck and back and that she suffers from headaches. Plaintiff initially sought treatment at the Assumption Community Hospital Emergency Department on the night of the accident, for complaints of neck and low back pain. She followed up with treatment from Dr. William Cherry, who prescribed medication and therapy, which plaintiff contends did not provide much relief. Dr. Cherry eventually ordered an MR1, which showed lumbar and cervical bulging discs. Dr. Cherry ultimately discharged her to the care of an orthopedist. Plaintiff was then seen by Dr. F. Allen Johnston, an orthopedic surgeon in Baton Rouge, for her complaints of neck and low back pain. At the time plaintiff presented to Dr. Johnston, she advised that she was taking Lortab, Soma, Synthroid, Premarin and Toprol. After examination and review of her x-rays, Dr. Johnston's office note stated that he "asked her to please wean off of the Lortab 10s that she was on" and "g[a]ve her 20 Lortab 7.5s." He further recommended a gentle regimen of physical therapy for strengthening her neck and back three times a week for four weeks. Plaintiff did not return to Dr. Johnston, but instead, sought treatment with Dr. Charles Billings, an orthopedist at Tulane University Hospital and Clinic. Dr. Billings opined that plaintiff suffered from cervical and lumbar strain with underlying disc disease. Dr. Billings recommended that plaintiff "be managed conservatively with a formal physical therapy program, analgesics, and restriction in activities." Plaintiff testified that she did not continue treatment with Dr. Billings, stating that he did "much of nothing" for her.
Next, plaintiff saw Dr. Morteza Shamsnia, her treating neurologist, who referred her to Dr. Bradley J. Bartholomew, a neurosurgeon, who became her treating physician. Dr. Bartholomew recommended that she undergo injections for her lower back or surgery on her cervical spine, but plaintiff decided to forego the injections and opted for surgery.
Dr. Bartholomew testified that based on the history provided to him by plaintiff, he related plaintiff's need for surgery to the June 19, 2006 automobile accident. However, Dr. Bartholomew further testified that he would be required to change his opinion if plaintiff's history of prior neck and back treatment were different from what he had been told by plaintiff.
Dr. Shamsnia testified that he also believed that surgery would alleviate plaintiff's abnormalities and improve her pain and sensory symptoms. He further opined that given her history and complaints, her injuries were more than likely related to the automobile accident of June 19, 2006. However, in forming his opinion, Dr. Shamsnia stated that he did not have access to plaintiff's prior medical records. Dr. Shamsnia further testified that plaintiff relayed to him that all of her complaints began after the June 19, 2006 accident herein.
Dr. Luke Allen Corsten, a neurosurgeon, performed an independent medical examination of plaintiff. After reviewing MR1 screens of plaintiff's cervical and lumbar spine, he opined that plaintiff was suffering from chronic degenerative disc disease, and that there were not necessarily any signs of acute trauma. He felt that the changes he saw had developed over a long period of time, in fact, many years. Dr. Corsten was not in favor of surgery and recommended a course of conservative treatment, such as physical therapy, massage therapy, chiropractic therapy, acupuncture therapy, or steroid injections.
At trial, plaintiff acknowledged that prior to the instant accident, she was involved in several other accidents wherein she sustained injuries for which she sought medical treatment. Plaintiff testified that as a result of these previous accidents, she suffered from neck and back pain as well as headaches. In particular, plaintiff explained that she sustained neck and tailbone injuries for which she sought treatment after she slipped on water in a store and fell in 2004. Plaintiff described another accident she was previously involved in, where she fell off of a front porch on to a tree trunk below, causing her to sustain two fractured ribs and suffer neck and back injuries for which she also sought treatment. Plaintiff testified that she was also involved in a previous automobile accident. In addition to the treatment sought for plaintiff's pre-existing accidents noted above, in 2005 alone, plaintiff presented once at the Emergency Department of Assumption Community Hospital with complaints of mid to lower back pain and twice at Chabert Medical Center complaining of neck and lower back pain.
She stated she filed "a claim" for that accident, but "it was thrown out." Plaintiff testified that she was ultimately approached and offered a thousand dollars for her claim.
The State notes in its brief that plaintiff was involved in an intervening automobile accident on May 5, 2011, between the time of the instant accident and trial, for which she sought treatment at Our Lady of the Lake Regional Medical Center. As reflected in his notes, plaintiff presented to Dr. Shamsnia on June 9, 2011, with complaints of increased neck and low back pain. Dr. Shamsnia determined that she had sustained an aggravation of her pre-existing condition. The State argues that plaintiff failed to disclose the 2011 automobile accident at trial.
Although plaintiff admitted that she suffered from neck and back pain and chronic headaches in the past, she testified that her pain symptoms were different after the instant accident. She contends that the type of headache she suffers from since the accident at issue herein differs from the type she previously experienced. Plaintiff further contends that since the accident herein, she experiences numbness in her hand, which causes her to drop things. With reference to plaintiff's complaints of numbness in her hand, however, Dr. Shamsnia stated that plaintiff had carpal tunnel syndrome in her right hand, which required surgery to correct and that if she were dropping objects from her right hand, it was due to the carpal tunnel syndrome. Moreover, plaintiff admitted to suffering from numbness in her fingers as early on as 2000, for which she sought treatment at Chabert Medical Center.
On cross examination, counsel for the State questioned plaintiff about her prior accidents and resulting injuries, as well as numerous other emergency room and hospital visits where she presented with complaints of neck and back pain and headaches. In doing so, the State attempted to prove through plaintiff's medical records that her post-accident complaints were substantially similar to the complaints she suffered from prior to the instant accident. When confronted with the medical records evidencing these visits, plaintiff basically denied having any recollection of presenting for treatment of these complaints. Although plaintiff testified that she did not intentionally attempt to conceal her previous neck and back injuries from her treating physicians, Dr. Shamsnia and Dr. Barthlomew, (both of whom opined that based on the medical history she provided, her back and neck complaints were related to the June 19, 2006 automobile accident herein), plaintiff acknowledged that she did not recall whether she told Dr. Bartholomew that she had suffered with back and neck pain before the instant accident. Further, Dr. Shamsnia candidly testified that he did not look at any of plaintiff's medical records to determine her condition prior to the instant accident. Hence, the State argues, because plaintiff failed to disclose her pre-existing injuries to her physicians, she ultimately failed to prove which treatment was attributable to the aggravation of her previous neck and back injuries.
On review, we first observe that the record overwhelmingly demonstrates that the jury was faced with differing views concerning the origin of plaintiff s neck and back pain, and that in reaching its verdict, the jury was ultimately required to do so based on the evaluation of conflicting expert testimony and the determination of the credibility of the witnesses. The evidence in the record, including plaintiff's voluminous medical treatment history, supports a finding that plaintiff's pain and injuries existed prior to the instant accident, and that those pre-existing injuries were merely aggravated by the accident herein. Mindful that a plaintiff must prove, by a preponderance of the evidence, the existence of the injuries and a causal connection between the injuries and the accident at issue, see Yohn v. Brandon, 835 So. 2d at 584, we find no manifest error in the jury's determination that the plaintiff failed to establish a causal relationship between the accident and all of the injuries for which she sought recovery herein.
As such, we are unable to find that the jury's awards of damages were unreasonable, considering the evidence of record. Given the vast discretion afforded the jury in its weighing and evaluation of expert testimony and in its credibility determinations, we find no error in its implicit determination that plaintiff's treatment and recommendation for surgery were not necessitated by the June 19, 2006 accident and that any injuries sustained therein were an aggravation of her pre-existing injuries. Thus, we find no error in the jury's decision to award $7,500.00 for past medical expenses and $7,000.00 for future medical expenses.
These assignments of error lack merit.
General Damages and Loss of Enjoyment of Life
(Assignments of Error Nos. 3 and 4)
In these assignments of error, plaintiff contends that the jury's awards of $20,000.00, for pain and suffering, including bodily injury, mental anguish, inconvenience and disability, and $2,500.00, for loss of enjoyment of life, are abusively low.
Considering our determination above that, based on the conflicting medical evidence, plaintiff's significant medical history, and the credibility determinations which the jury was required to resolve and make, the jury properly determined that plaintiff's treatment and the recommended surgery were not necessitated by the June 19, 2006 accident, and that any injuries sustained therein were an aggravation of her pre-existing injuries, we are unable to say that the jury abused its discretion in its general damage award of $20,000.00.
Moreover, with regard to plaintiff's argument that the amount awarded for loss of enjoyment of life is abusively low, we note that such awards are made for detrimental alterations in a plaintiff's life or lifestyle or the inability to participate in the activities or pleasures of life that were enjoyed prior to an injury. Guillorv v. Lee, 16 So. 3d at 1126. With reference to this claim at trial, the scant testimony presented by plaintiff, who was 47 years old at the time of the accident, was that since the accident, using the vacuum cleaner "takes a toll" on her, but she nonetheless uses it. Further, she stated that she is unable to "play volleyball and go run outside with the kids anymore." Considering that these awards are made for detrimental alterations of a plaintiff's lifestyle, and considering the record as a whole, we find no abuse of the jury's discretion in its award of $2,500.00 for these claims.
Thus, we also find no merit to these assignments of error.
Failure to Render Judgment Against Osborn
(Assignment of Error No. 5)
In her final assignment of error, plaintiff contends that the trial court erred in failing to name the defendant, Gregory Osborn, in the written judgment signed on October 30, 2012.
Gregory Osborn, along with his employer, the State, were named as defendants in plaintiff's petition for damages filed herein. In its answer, the State admitted that Gregory Osborn was acting in the course and scope of his employment at the time of the accident. Counsel for the State of Louisiana represented Gregory Osborn throughout the proceedings below. The jury specifically found that Gregory Osborn was at fault and that his fault was a cause of the accident herein, as indicated on the jury verdict form.
The omission of a party from the written judgment is a substantive error. See LSA-C.C.P. art. 1951; Frisard v. Autin, 98-2637 (La. App. 1st Cir. 12/28/99), 747 So. 2d 813, 819, writ denied, 2000-0126 (La. 3/17/00), 756 So. 2d 1145. The aggrieved party has recourse to correct this substantive error and add a party to a written judgment by filing a timely application for new trial, an action for nullity, or a timely appeal. Frisard v. Autin, 747 So. 2d at 818; Hebert v. Hebert, 351 So. 2d 1199, 1200 (La. 1977); see also Davenport v. Am ax Nickel. Inc., 569 So. 2d 23, 26-27 (La. App. 4th Cir. 1990), writ denied, 572 So. 2d 68 (La. 1991).
Louisiana Code of Civil Procedure article 2164 permits an appellate court to "render any judgment which is just, legal, and proper upon the record on appeal." As such, we agree that the trial court erred in omitting Gregory Osborn's name from the written judgment, as he was found to be at fault in causing the accident, which resulted in injuries to plaintiff. Thus, we deem it just and proper to amend the October 30, 2012 judgment of the trial court to include the named defendant, Gregory Osborn. See Moore v. Succession of Moore, 2012-959 (La. App. 3rd Cir. 4/10/13), 116 So. 3d 18, 25, writ denied, 2013-1065 (La. 6/21/13), __ So. 3d __."
CONCLUSION
For the above and foregoing reasons, the October 30, 2012 judgment of the trial court, entered in accordance with the jury's verdict, is hereby amended to cast defendant, Gregory Osborn, in judgment as follows: CONSIDERING THE JURY VERDICT, IT IS ORDERED, ADJUDGED AND DECREED that there be judgment herein in favor of Plaintiff, Venetia Gros, and against defendants, Gregory Osborn and the State of Louisiana, through the Department of Culture, Recreation, and Tourism, jointly, severally, and in solido, in the full and true sum of Thirty Thousand and 00/100 Dollars, together with interest as specified by LSA-R.S. 13:5112 until paid, with defendant to bear the court costs.
In all other respects, the judgment is affirmed, as amended. Costs of this appeal in the amount of $1,947.50 are to be assessed equally among the parties.
AMENDED, AND AS AMENDED, AFFIRMED.