Opinion
2013 CA 1245
05-02-2014
GARY HARRIS AND ROBYN M. HARRIS v. KATHERINE DAQUI LA SOULIER, MISSISSIPPI FARM BUREAU CASUALTY INSURANCE COMPANY, AND AMERICAN FIRST INSURANCE COMPANY
Jeff W. Watson Baton Rouge, Louisiana Counsel for Plaintiff/Appellee Gary Harris Stacey Moak Jonathan D. Mayeux Christopher W. Stidham Janna C. Underhill Baton Rouge, Louisiana Counsel for Defendants/Appellants Katherine Daquila Soulier and Mississippi Farm Bureau Casualty Insurance Company Darrell J, Loup Baton Rouge, Louisiana Counsel for Defendants/Appellants Electronic Business Systems, Inc. and State Farm Fire And Casualty Co.
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
No. C587160
Honorable Timothy E. Kelley, Judge Presiding
Jeff W. Watson
Baton Rouge, Louisiana
Counsel for Plaintiff/Appellee
Gary Harris
Stacey Moak
Jonathan D. Mayeux
Christopher W. Stidham
Janna C. Underhill
Baton Rouge, Louisiana
Counsel for Defendants/Appellants
Katherine Daquila Soulier and
Mississippi Farm Bureau Casualty
Insurance Company
Darrell J, Loup
Baton Rouge, Louisiana
Counsel for Defendants/Appellants
Electronic Business Systems, Inc.
and State Farm Fire And Casualty Co.
BEFORE: PETTIGREW, MCDONALD, AND McCLENDON, JJ.
McCLENDON, J.
In this personal injury action, the defendants appeal a judgment of the trial court rendered in conformity with a jury's verdict that awarded damages to the plaintiff. The plaintiff answered the appeal and seeks to increase the amount of damages awarded to him. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On February 13, 2009, Gary Harris was operating his vehicle on South Sherwood Forest Boulevard in Baton Rouge. He was stopped at a traffic light when his vehicle was hit from the rear by a vehicle operated by Katherine Soulier. On February 3, 2010, Mr. Harris filed suit for damages against Ms. Soulier and Mississippi Farm Bureau Casualty Insurance Company (Farm Bureau), the automobile liability insurer of the vehicle driven by Ms. Soulier. Mr. Harris later amended his petition to add Ms. Soulier's employer, Electronic Business Systems, Inc. (EBS), and its insurer, State Farm Fire and Casualty Company (State Farm), as defendants. During the course of the proceedings, a partial summary judgment was granted, finding Ms. Soulier 100% at fault in causing the accident and finding that she was in the course and scope of her employment with EBS at the time of the accident. At the beginning of the jury trial of this matter, held from January 14, 2013, through January 18, 2013, the parties entered into several stipulations, including the stipulation that EBS was vicariously liable for the actions of Ms. Soulier, who was acting in the course and scope of her employment with EBS at the time of the accident. The matter proceeded on the issues of causation and damages.
Mr. Harris also sued his uninsured/underinsured motorist carrier, America First Insurance Company (America First). However, America First was dismissed prior to trial. Additionally, Mr. Harris's wife, Robyn Harris, sued for loss of consortium, but her claims were later dismissed.
The hearing on the motion for partial summary judgment was held on December 17, 2012, at the conclusion of which judgment was rendered granting the motion. The judgment was signed on February 27, 2013.
At the conclusion of the trial, the jury found that Mr. Harris was injured as a result of the February 13, 2009 accident and awarded him $56,777.00 in past medical expenses and $3,000.00 for past pain and suffering. The jury declined to make any award for future pain and suffering, future medical expenses, past mental anguish, future mental anguish, or loss of enjoyment of life. Judgment was signed on February 27, 2013, in accordance with the jury verdict.
Ms. Soulier, Farm Bureau, EBS, and State Farm (defendants) filed a suspensive appeal from the judgment, asserting that the jury's award of $56,777.00 in past medical expenses was manifestly erroneous and not supported by the evidence. The defendants also aver that the trial court erred and abused its discretion when it denied their motion in limine. Mr. Harris answered the appeal, contending that the jury erred in failing to make an award for future pain and suffering and future medical expenses. Mr. Harris also maintains that the jury erred in awarding him only $3,000.00 for past pain and suffering.
DISCUSSION
The Motion In Limine
The defendants initially contend that the trial court erred in denying their motion in limine concerning Mr. Harris's treating physicians' ability to testify that they believed that Mr. Harris was telling them the truth about the source of his post-accident low back complaints.
The record reflects that during pre-trial discovery, Mr. Harris responded to discovery requests stating that, to the best of his knowledge, he never received treatment for low back pain. At his pre-trial deposition, Mr. Harris also stated that he was never treated for low back complaints prior to the accident at issue. Additionally, he indicated the absence of prior low back problems on the medical questionnaire form he filled out on April 3, 2009, when he saw Dr. Jason Smith, an orthopedic spine surgeon. Thereafter, the defendants received Mr. Harris's medical records from his incarceration with the Louisiana Department of Corrections at Angola. The medical records established that, while at Angola, Mr. Harris complained of low back pain on numerous occasions. At trial, Mr. Harris did not remember any prior low back complaints, but when shown the prison records, acknowledged that he made low back complaints in order to get out of hard labor. Thus, the defendants argue, Mr. Harris's credibility, or lack thereof, was of paramount importance in this matter.
Prior to trial, on January 7, 2013, Ms. Soulier and Farm Bureau filed a motion in limine seeking to exclude as evidence a chart note of Dr. Kelly Scrantz, Mr. Harris's neurosurgeon, wherein the doctor stated that he believed that Mr. Harris was being "truthful" concerning his post-accident low back and right leg complaints. The defendants also sought to exclude any comments regarding same. The trial court denied the motion, and, at trial, Dr. Scrantz and Dr. Joseph Turnipseed, an expert in anesthesia with a subspecialty in pain management, testified that they believed Mr. Harris when he told them that his post-accident low back and right leg complaints were caused by the accident.
Dr. Scrantz testified: "I liked him. I believed him." Dr. Turnipseed testified that a huge part of what he does is to determine whether patients are being truthful, and he stated: "I am very comfortable that [Mr. Harris] was truthful."
The defendants argue that such evidence is not truly expert testimony as it relates to matters within the jury's understanding and wholly without value to the jury in reaching a decision. Further, the defendants suggest that the experts' opinions as to whether Mr. Harris was telling the truth about his injuries was merely speculative and did not fall within the scope of the experts' knowledge. The defendants contend that the denial of the motion in limine unfairly prejudiced the defendants because the experts were allowed to use their influence to suggest to the jury that Mr. Harris was credible.
Upon our review of the record, even if the trial court erred in denying the defendants' motion in limine, we do not believe that the introduction of this evidence was prejudicial to the defendants' case, as the jury awarded only $3,000.00 for past pain and suffering. Thus, any error in the introduction of the evidence was harmless. This assignment of error is without merit.
Damages
The defendants next contend that the evidence presented at trial failed to support the jury's award of $56,777.00 for past medical expenses. They maintain that the issue of whether Mr. Harris was injured at all in the accident and, if so, the extent of said injuries, was totally dependent upon Mr. Harris's credibility, which they allege was woefully lacking. Thus, the defendants contend that the award of past medical expenses is manifestly erroneous and that an award of $1,547.00 is all that is supported by the record. Mr. Harris contends, however, that the jury's award of past medical expenses is clearly supported by the record and, accordingly, the general damages award of only $3,000.00 is inconsistent. Mr. Harris maintains that the past medical expenses award mandates an increase in the amount of general damages awarded, as well as requires an award for future medical expenses.
It is well-settled that a reviewing court may not disturb the factual findings of the trier of fact in the absence of manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). The reviewing court does not decide whether the trier of fact was right or wrong; rather, a trial court's factual findings cannot be reversed unless an appellate court, after review of the entire record, finds both that no reasonable factual basis exists for the finding and that it is manifestly erroneous or clearly wrong. Stobart v. State, Through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La. 1993). Furthermore, 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 reasonable. Rosell, 549 So.2d at 844. Thus, where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Id. Moreover, on review, an appellate court must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently. Guillory v. Lee, 09-0075 (La. 6/26/09), 16 So.3d 1104, 1117.
It is also well-settled that a judge or jury is given great discretion in its assessment of quantum, as to both general and special damages. Guillory, 16 So.3d at 1116; Wainwright v. Fontenot, 00-0492 (La. 10/17/00), 774 So.2d 70, 74. The reason for this well-settled principle of review is based not only upon the trial court's better 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.3d at 1116-17. 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.2d 1257, 1261 (La. 1993).
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. 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. Wainwright, 774 So.2d at 74.
Special damages are those which have a "ready market value," such that the amount of damages theoretically may be determined with relative certainty, including medical expenses and lost wages. An appellate court, in reviewing a jury's factual conclusions with regard to special damages, 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 conclusions, and the finding must be clearly wrong. Guillory, 16 So.3d at 1117-18.
With these principles in mind, we now review the evidence in the record and determine if the jury's special and general damages awards in this matter were contrary to the evidence contained in the record or constituted an abuse of discretion.
Mr. Harris testified at trial that on the day of the accident, which was a Friday, he was sitting in traffic, waiting at a traffic light, when all of a sudden there was a hard impact from behind, which thrust him forward and then back again. The record shows that there were no complaints of injury at the scene of the accident, and, following the police officer's investigation, Mr. Harris drove his car from the scene. Mr. Harris stated that after the accident he went home, but that by the next day he began suffering some stiffness and pain in his back. By Sunday evening, he stated that he was in more pain and realized he needed to go to his doctor. Therefore, Mr. Harris calied his primary care physician, Dr. Kenyatta Shamlin, on Monday and made an appointment to see her on Tuesday. He testified that he did not work on Saturday, Sunday, or Monday.
The record further shows that the driver of the other vehicle, Ms. Soulier, was about eight weeks pregnant with her first child at the time of the accident. She testified at trial that at the time of the accident it was not raining, but the street was wet, and when she applied her brakes, her wheels locked and she "bumped" into the back of Mr. Harris's car. Ms. Soulier stated that no airbag inflated and her body did not hit anything. Ms. Soulier described the accident as a "fender-bender."
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Dr. Shamlin, an expert in internal medicine and pediatrics, testified that Mr. Harris saw her nurse practitioner on February 17, 2009, complaining of right neck, right shoulder, and right hip pain. Mr. Harris also reported that the pain was shooting from his neck into his lower back, which he related to the February 13, 2009 accident. Medication was prescribed, and Mr. Harris was later referred to physical therapy. On March 30, 2009, Dr. Shamlin saw Dr. Harris for a follow-up on his medications, "but mostly he complained of back pain/' Mr. Harris stated to Dr. Shamlin that he was trying to work, despite all the pain. Thereafter, Dr. Shamlin gave Mr. Harris an orthopedic referral to Dr. Jason Smith.
Dr. Smith, an orthopedic surgeon, first saw Mr. Harris on April 3, 2009. Based on Mr. Harris's x-rays and his own examination, Dr. Smith was of the opinion that Mr. Harris had a significant amount of degenerative disc disease, specifically at the L5-S1 level. Dr. Smith ordered an MRI of Mr. Harris's lower spine. Mr. Harris returned to see Dr. Smith on April 15, 2009, after the MRI test was performed. The MRI showed disc desiccation at both the L4-L5 and L5-S1 levels. There was a posterior annular tear at L4-5, some mild stenosis, and significant collapse at L5-S1. Mr. Harris returned on June 29, 2009. On that visit, Mr. Harris reported that his work as a floor tiler was exacerbating his pain. Mr. Harris saw Dr. Smith again on August 31, 2009, at which time they discussed various options regarding Mr. Harris's back pain, including surgery. Thereafter, Dr. Smith scheduled Mr. Harris for a discogram with Dr. Turnipseed.
Dr. Turnipseed testified that he first saw Mr. Harris on November 5, 2009, as a referral from Dr. Smith, at which time they discussed the discogram procedure. The results of the discogram were consistent with the MRI and showed annular tears at both the L4-L5 and L5-S1 levels. A CT scan was also performed following the discogram that showed a wide tear at L5-S1. Dr. Turnipseed told Mr. Harris that the information would be sent to Dr. Smith.
Mr. Harris's next visit with Dr. Smith was on January 26, 2010, when they discussed the possibility of a two-level anterior fusion surgery. On March 9, 2010, Mr. Harris reported that his pain was worse and that he was trying to make arrangements regarding work so he could schedule the surgery. He reported that he was working only half days because of the pain. However, on April 27, 2010, Mr. Harris reported to Dr. Smith that he wanted to try to manage his pain conservatively, as opposed to surgically, so Dr. Smith referred Mr. Harris to Dr. Turnipseed for continued conservative pain management. Dr. Smith testified that he has not seen Mr. Harris since then.
It was Dr. Smith's opinion that the motor vehicle accident necessitated Mr. Harris's need for medical treatment and the need for the recommended surgery. He stated that the prison records did not change his opinion, especially since there were no documented complaints of low back pain for almost nine years following Mr. Harris's incarceration at Angola.
Mr. Harris saw Dr. Turnipseed again on April 28, 2010, because Mr. Harris was concerned about having the surgery and being self-employed. Other options and procedures were discussed and offered. Subsequently, Mr. Harris underwent a neurotomy procedure that burned the nerves, but Mr. Harris did not have much relief. Different injections were also tried, but Mr. Harris reported that they provided only about twenty percent relief.
Dr. Turnipseed last saw Mr. Harris on January 8, 2013, shortly before the trial. Mr. Harris still complained of a lot of pain in his lower back. Dr. Turnipseed found that there was not much change since Mr. Harris's last visit with him on November 15, 2010. He stated that it was more probable than not that Mr. Harris would eventually need surgery, and that he was getting "really, really close." Dr. Turnipseed found the nine-year gap between treatment for his lower back significant. He also believed Mr. Harris had no choice but to work because he owned his own business. He was of the opinion that the treatment he provided to Mr. Harris was necessitated by the accident at issue with a reasonable degree of medical probability.
Dr. Kelly Scrantz, a neurosurgeon, testified at trial and stated that he first saw Mr. Harris on April 2, 2012, for a surgical opinion. There were no objective findings upon examination, which Dr. Scrantz stated was not unusual. Dr. Scrantz saw Mr. Harris again on April 30, 2012, and they made an open appointment for Mr. Harris to call when he was ready for surgery. Dr. Scrantz believed, like Drs. Smith and Turnipseed, that Mr. Harris would eventually need surgery. He stated, however, that surgery would be necessary only if Mr. Harris had been hurting enough over a period of time and all other conservative measures had failed. Dr. Scrantz stated that he would not recommend surgery to Mr. Harris as long as Mr. Harris could avoid it, although he suspected that the need for surgery was "very likely." Based on the history given to him and Mr. Harris's medical records, Dr. Scrantz was of the opinion that the accident caused or exacerbated his condition, although a vast majority of Mr. Harris's back condition was degenerative and probably pre-dated the accident. Dr. Scrantz stated that for many years there was a lack of treatment and then following the accident, there was a landslide of treatment. There must have been some new event that caused the change, such as the subject accident. Further, Dr. Scrantz considered the L4-L5 annular tear with the high signal density to be a newer type of injury.
However, the record also shows that the defendants requested an independent medical examination, which took place on June 8, 2010, and was performed by Dr. Allen Joseph. Dr. Joseph testified that after examining Mr. Harris and reviewing his medical records, it was his opinion that indications of an acute injury were not present. The MRI indicated that Mr. Harris's problems had been there for months. He stated that if the accident caused the injuries, there would have been evidence of a fresh injury, which was not present. Dr. Joseph stated that "the overwhelming likelihood is that the majority of his problems after the accident were more related to his disease that he had before the accident than they were to the accident itself." He pointed out that there was no immediate need for attention after the accident, there were no acute changes on the MRI, and the kind of changes on the MRI evidenced preexisting problems. He believed that surgery was not warranted because Mr. Harris could function at least in a light-duty capacity. Dr. Joseph was of the opinion that any injury suffered by Mr. Harris in the accident would have resolved in about six weeks and that any complaints beyond three months were best explained by Mr. Harris's preexisting degenerative disc disease and not by the accident.
General damages
The jury awarded Mr. Harris $3,000.00 for past pain and suffering and made no award for future pain and suffering. While it is clear that Mr. Harris has serious back problems, the jury was also faced with the issue of causation and was presented with conflicting expert opinions regarding same. The jury was also presented with the issue of Mr. Harris's credibility. The jury considered all of the testimony and documentary evidence presented at trial. Given that evidence, the jury could have reasonably found that, while Mr. Harris was injured in the February 13, 2009 accident, he merely suffered an aggravation of a preexisting injury, which abated over a short period of time. Dr. Joseph opined that no more than three months of Mr. Harris's symptoms were caused by the accident. The jury could have reasonably questioned Mr. Harris's veracity regarding the source of his back problems and discounted his testimony. A reasonable factual basis exists in the record for the jury's apparent conclusion that Mr. Harris's complaints were not fully related to the accident. Furthermore, the number of witnesses is not a decisive factor as witnesses are weighed, not counted. Comeaux v. Cameron Offshore Services, Inc., 420 So.2d 1209, 1213 (La.App. 3 Or. 1982). Given the evidence presented, we cannot say that the jury was manifestly erroneous in determining that most of Mr. Harris's back problems were due to a preexisting degenerative condition.
Although we might have found differently sitting as the trier of fact, based on the record before us, the jury could have reasonably concluded that $3,000 for past pain and suffering was an appropriate award for a three-month injury. We can find no abuse of the jury's discretion in that regard. Also, because the jury could have reasonably believed that any injury Mr. Harris suffered in the subject accident was merely a temporary aggravation of a preexisting problem, we cannot say, under the circumstances of this case, that there was manifest error in the jury's failure to make an award for future pain and suffering.
Special damages
The jury believed that Mr. Harris was injured as a result of the February 13, 2009 motor vehicle accident and indicated the same on the jury verdict form. The jury also believed that medical expenses were incurred as a result of the injury and awarded $56,777.00 for that claim. The defendants disagree with the past medical expenses awarded, whereas Mr. Harris agrees with the $56,777.00 award, but complains that the award does not include the costs of future surgery.
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 sustained. See Wainwright, 774 So.2d at 77. In Wainwright, the jury awarded special damages for medical expenses of a hospital stay but did not award general damages. The court held that the jury could have reasonably concluded that it was a reasonable precaution for prudent parents to place their minor son in the hospital for observation after finding out that the defendant pharmacy had erroneously filled their son's prescription, resulting in his ingestion of four times the medication prescribed for him. The supreme court found no abuse of the jury's discretion in its award of medical expenses but failure to award general damages. Wainwright, 774 So.2d at 77. The 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.2d at 76.
While general damages were awarded in this matter, the jury ultimately concluded that an award of only $3,000.00 was appropriate, apparently finding that Mr. Harris suffered a temporary aggravation of a preexisting condition. The jury was presented with conflicting evidence regarding the cause of Mr. Harris's back pain. Mr. Harris's treating physicians noted the lack of low back complaints between Mr. Harris's complaints while at Angola and the subject accident, concluding that the accident was the trigger for Mr. Harris's current back complaints. Dr. Joseph, however, related the majority of Mr. Harris's back problems to his degenerative disc disease and found no objective evidence of a new injury after the accident. Faced with two permissible views of the evidence, the jury could have reasonably concluded that the medical expenses were incurred while determining whether any injury was in fact sustained by Mr. Harris as a result of the accident at issue. See Green v. K-Mart Corp., 03-2495 (La. 5/25/04), 874 So.2d 838, 844. We cannot say the jury was clearly wrong in making this award.
We also find a reasonable factual basis for the jury's decision not to award any future medical expenses. An award of future medical expenses is justified if there is medical testimony that they are indicated and setting out their probable cost. Future medical expenses are indicated if the record establishes that they will be necessary and inevitable. See Hanks v. Seale, 04-1485 (La. 6/17/05), 904 So.2d 662, 672.
The record shows that Mr. Harris continued to work after the subject accident. Mr. Harris's doctors all stated that if Mr. Harris could manage the pain and continue working, he should do so. And while Mr. Harris's physicians indicated that Mr. Harris might eventually need a two-level fusion surgery, the jury could have reasonably concluded that any need for future surgery was related to his preexisting condition, rather than to the aggravation injury. Additionally, Dr. Joseph testified that he would advise against having the two-level fusion surgery, being of the opinion that surgery was not warranted since Mr. Harris could function in at least a light-duty capacity. Moreover, at the time of the trial in January of 2013, Mr. Harris had not seen his orthopedic surgeon, Dr. Smith, since April of 2010. The jury could have reasonably believed that Mr. Harris failed to present sufficient evidence that future surgery was required or that it was related to the February 13, 2009 accident. While we may have found differently, we cannot say that the jury manifestly erred in failing to award future medical expenses.
CONCLUSION
For the foregoing reasons, the February 27, 2013 judgment of the trial court is affirmed. Costs of this appeal shall be shared one-half by the plaintiff, Gary Harris, and one-half by the defendants, Katherine Soulier, Mississippi Farm Bureau Casualty Insurance Company, Electronic Business Systems, Inc., and State Farm Fire and Casualty Company.
AFFIRMED.