Opinion
No. 95-C-1925
December 8, 1995
IN RE: Matthews, Charles; — Plaintiff(s); Applying for Writ of Certiorari and/or Review; to the Court of Appeal, Fourth Circuit, Number 94CA-2425; Parish of Orleans Civil District Court for the Parish of Orleans Div. "B" Number 89-22282.
Granted in part, denied in part. See per curiam.
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Granted. The judgment of the court of appeal is reversed in part, and affirmed in part.
Plaintiff, Charles Matthews, filed suit against defendants, John Bergeron, Consolidated Companies, Inc. d/b/a Conco Food and Old Republic Insurance Company, alleging that he sustained injury to his back which required surgery as a result of an automobile accident that occurred on June 23, 1989. The matter was tried by jury on February 22, 23, and 24, 1994. The jury rendered a verdict finding that the defendants' negligence was the proximate cause of plaintiff's injury. The jury awarded plaintiff medical expenses in the amount of $35,220.00, future lost wages in the amount of $10,000.00, but only $451.00 in general damages. Both plaintiff and defendants sought post-trial relief which was ultimately denied by the trial court.
Plaintiff appealed the jury's verdict assigning the following assignments of error:
1. The jury committed error when it awarded medical expenses of $35,220.99, future loss wages of $10,000.00, but only $451.00 for general damages which was the identical figure that the plaintiff testified to as being the amount he paid to repair his vehicle. More specifically:
a. The jury did not award any general damages;
b. The jury did not award past lost wages; and
c. The jury awarded only $10,000.00 for future lost wages (diminished earning capacity).
2. The court erred in denying plaintiff's motion for judgment notwithstanding the verdict.
3. The court erred in its original judgment in not providing for judicial interest from the date of judicial demand.
The defendants neither appealed the jury's verdict, nor did they answer the plaintiff's appeal.
The court of appeal reversed in part, amended, and, as amended, affirmed in part. The court first concluded that the jury award of $451.00 in general damages, although inconsistent with the other awards, was in fact general damages, not property damage as argued by the plaintiff. Because of the inconsistency in the verdict, the court determine that a de novo review of the entire record, rather than a de novo assessment of damages alone, was warranted. The court then found that plaintiff's arguments, that it was error not to award general damages and lost wages, and that future earning capacity should be increased, lacked merit. However, the reviewing court did conclude that the trial judge erroneously denied plaintiff's motion for judgment notwithstanding the verdict as to damages, and it also amended the trial court's judgment to attach legal interest from the date of judicial demand. The appellate court ultimately determined that as a result of this accident plaintiff, at most, suffered an aggravation to a preexisting back injury which he intentionally failed to disclose, sanctioning an award of $10,000.00 in general damages. The court further determined that plaintiff failed to offer proof beyond a reasonable medical certainty that his surgery was necessitated by the 1989 accident, and reduced his award of medical expenses from $35,220.00 to $3,522.00. In addition, the court of appeal concluded that their de novo review of the record in its entirety evinces that plaintiff failed to prove any entitlement to past or future loss wages and therefore, reversed the jury's award of $10,000.00 for future earning capacity.
Because the verdict form reflected a general damage award of $451.00 as compared to the $35,220.00 award for medical expenses, we agree that the jury verdict was inconsistent, therefore, warranting a de novo review of the record. See Odendahl v. Wild, 418 So.2d 36 (La.App. 4th Cir. 1982); Daigle v. White, 544 So.2d 1260 (La.App. 4th Cir. 1989). However, we find that the reviewing court erred in reducing the jury's award of medical expenses absent a verdict that was "clearly wrong" or "manifestly erroneous," especially where the defendant failed to appeal the award or answer the plaintiff's appeal.
The appellate court opined that plaintiff failed to disclose the fact of his prior back injuries to his treating physician. The court also noted that Dr. Llewellyn, plaintiff's treating physician, testified that if plaintiff did conceal prior back injuries from him, he could not say with reasonable medical certainty that the accident in question caused the diagnosed disc problem which resulted in plaintiff's surgery.
However, the reviewing court failed to give credence to Dr. Llewellyn's entire testimony. After reviewing plaintiff's prior medical records and when questioned by defense counsel, Dr. Llewellyn testified as follows:
Q. Are you able to distinguish, sitting here today and under oath, the cause of the complaint Mr. Matthews described to you in 1990, between the '85, '86, '87, '88 and '89 episodes that we have cataloged over the last half hour?
A. Am I able to distinguish what?
Q. Whether the injury that you treated in 1990 was caused by a June 5th accident, or whether it was caused by a 1988 accident, or an '87 accident, or an '86 or '85 accident?
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THE WITNESS
I was asked if my opinion as to causation would differ now that I'm aware of the accidents that proceeded that, that's been [sic] 4-18-88, '87, '86 and '85. And despite that additional information and the fact that he had, he had [sic] complaint [sic] of the back and leg pain, my statements of causation would not be different or altered, no, sir.
Q. Wouldn't be different?
A. No, sir.
Q. You are able to distinguish the injury that you treated in 1990 as being the cause of something that happened in 1985 or 1986 or some other year?
A. Yes, sir. If I accept the diagnosis of a ruptured disc from disc [sic] to muscle and ligament sprain.
Further, Dr. Llewellyn unequivocally stated that his review of plaintiff's prior medical records only revealed that plaintiff suffered from back pain, not disc injury. Moreover, when asked if plaintiff's prior medical records confirmed his feelings that plaintiff did not in fact suffer a prior disc injury, Dr. Llewellyn answered in the affirmative. In fact, Dr. Llewellyn testified that "[he didn't] feel that those previous injuries had anything major to do with the causation for which [he] treated [plaintiff]."
It is well settled that the determination of whether the plaintiff's medical expenses were caused by the defendant's negligence is a factual issue for the trier of fact, subject to the manifest error standard of appellate review. See Simar v. NOWCAM, 617 So.2d 164 (La.App. 3 Cir. 1993). Based upon Dr. Llewellyn's testimony, the jury could have reasonably concluded that the accident in questioned caused plaintiff's injuries and that it (the accident) was directly related to plaintiff's surgery. Therefore, the jury's medical award should not have been disturbed. Accordingly, we reverse the court's finding on this issue and reinstate the jury's award of $35,220.00 in medical expenses to plaintiff.
With regard to general damages, it appears that the jury believed that the accident caused plaintiff's disc problem, but because plaintiff failed to disclose his prior back problems to his treating physician, the jury attempted to punish him by awarding only $451.00 in general damages.
The court of appeal reversed this portion of the jury's verdict and awarded plaintiff $10,000.00 in general damages based upon aggravation to a preexisting injury. Although this is a rather low award, we do not think that it is unreasonable under the circumstances. Furthermore, even though the appellate court may disturb the jury's award if the jury has abused its discretion, it may only raise the award to the lowest point which is reasonably within the discretion afforded to the trial court. See Pontiff v. Bailey, 509 So.2d 451 (La.App. 3 Cir. 1987). In Pulen v. Zeigler, 562 So.2d 1093 (La.App. 4th Cir. 1990), the jury awarded $10,000.00 to a fifty-four year old man with a history of back problems and who underwent a lumbar discectomy and foraminotomy as a result of an automobile accident. He was assigned a ten to fifteen percent whole body physical impairment as a result of the accident. He testified to severe limitations but video tapes showed him performing athletic activities. Relying upon Pulen, and based upon the evidence presented in this case, we do not think the reviewing court's damage award was inadequate.
Next, plaintiff argues that the court of appeal erred in affirming that portion of the jury's verdict which failed to award past lost wages. We disagree. It is well settled that "[a]wards for damages for loss wages up to the date of trial can be calculated mathematically from the proof offered and do not fall within the `much discretion' rule." Cookmeyer v.Langston, 487 So.2d 525 (La.App. 4 Cir. 1986); (citations omitted). The law does not require a plaintiff to establish his loss in an exact amount to be entitled to an award for loss of income. Nonetheless, as the only support for plaintiff's claim for lost wages is his own self-serving testimony, without corroboration by any other source, this alone cannot serve as a basis for such an award. See Miller v. Mahfouz, 563 So.2d 1233 (La.App. Cir. 1990) (citations omitted). Here, plaintiff lied about filing tax returns with his wife and in fact, plaintiff never claimed any income as a cab driver. We conclude that the record fully supports the jury's finding that plaintiff failed to offer sufficient proof to establish lost wages. For these reasons, we affirm this portion of the court of appeal's judgment.
With regard to future loss wages, plaintiff argues that the court of appeal erred in reversing the jury's award of $10,000.00 in future loss wages. Plaintiff maintains the appellate court should have increased the future loss wages award and awarded past wages.
"To receive an award for future loss of wages, a claimant must present medical evidence at lease indicating that there could be residual disability casually related to the accident. Mere evidence of discomfort is insufficient to support such an award." Cookmeyer v. Langston, 487 So.2d 525 (La.App. 4 Cir. 1986); Bize v. Boyer, 408 So.2d 1309 (La. 1982). Moreover, this court has stated that damages should be estimated on the injured person's ability to earn money, rather than what he actually earned before the injury. See Folse v. Fakouri, 371 So.2d 1120 (La. 1979).
Here, as evinced by the reviewing court's opinion, Dr. Llewellyn testified that since the surgery, plaintiff "had not achieved the optimal result of 80 percent comfort in 80 percent of his activities." By the court of appeal's own words, it acknowledges that plaintiff has a residual disability. Apparently, the jury felt that the disability was casually related to the accident and awarded plaintiff future loss wages based his ability to earn money. It is clear that the jury relied on the testimony of Dr. Llewellyn and Dr. Woodson, the economist, to reach its conclusion. Although we find that plaintiff's argument that this award should be increased lacks merit, we do not think the jury's award of $10,000.00 was erroneous warranting reversal, as opined by the reviewing court. Accordingly, we reverse the court of appeal's opinion on this assignment of error and reinstate the jury's award of $10,000.00 in future loss wages.
Furthermore, we conclude that the court of appeal was correct in finding that the trial judge erred in denying plaintiff's judgment notwithstanding the verdict and in not providing judicial interest on the judgment from the date of judicial demand. Accordingly, we affirm this portion of the court of appeal's judgment.
DECREE
The judgment of the court of appeal is reversed insofar as the award for medical expenses and future loss wages and the jury's award in reinstated, and affirmed insofar as the award for general damages. We also affirm the judgment to reflect the attachment of legal interest from the date of judicial demand.