Opinion
NUMBER 2016 CA 0449
12-22-2016
JASON McLIN v. MARY McNABB, AUTOMOBILE CLUB INTER-INSURANCE EXCHANGE, AND AMERICA FIRST INSURANCE COMPANY
Mark D. Plaisance Thibodaux, Louisiana Attorney for Appellant Plaintiff - Jason McLin John W. Norwood, III Metairie, Louisiana Attorney for Appellee Defendant - American First Insurance Company
NOT DESIGNATED FOR PUBLICATION
Appealed from the 21st Judicial District Court In and for the Parish of Livingston, Louisiana
Trial Court Number 144,465 Honorable M. Douglas Hughes, Judge Mark D. Plaisance
Thibodaux, Louisiana Attorney for Appellant
Plaintiff - Jason McLin John W. Norwood, III
Metairie, Louisiana Attorney for Appellee
Defendant - American First Insurance
Company BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ. WELCH, J.
The appellant/plaintiff, Jason McLin, appeals a judgment of the trial court rendered in conformity with the jury's verdict awarding past medical expenses, but no future medical expenses or general damages. For the reasons set forth below, we reverse in part, render in part, and remand the matter for further proceedings.
FACTS & PROCEDURAL HISTORY
On March 22, 2013, the plaintiff, Mr. McLin, was at the drive-through window at Fernando's Restaurant in Walker, Louisiana, when Mary McNabb backed her vehicle into the passenger side of the plaintiff's vehicle. At the time of the accident, the plaintiff was operating a 2003 Chevrolet 1500 that was owned by Bruce McLin, and was covered by an uninsured/underinsured automotive policy issued by America First Insurance Company.
In May of 2014, the plaintiff filed suit against Ms. McNabb, her insurer, and American First Insurance Company seeking recovery for damages he incurred as a result of the accident. Ms. McNabb and her insurer, Automobile Club Inter-Insurance Exchange, were voluntarily dismissed with prejudice from the suit in November of 2014. A one-day jury trial on the issue of damages and recovery under the uninsured/underinsured policy was conducted on September 15, 2015.
The parties stipulated that the plaintiff had incurred $18,087.00 in medical bills in the wake of the March 2013 accident. Evidence presented to the jury included the plaintiff's medical records for treatment following the March 2013 accident, medical bills, plaintiff's responses to interrogatories, as well as testimony from the plaintiff and two of his medical care providers. The jury verdict form contained individual blanks for the following categories of damages: past medical expenses, future medical expenses, past physical pain and suffering, future physical pain and suffering, past mental pain and suffering, future mental pain and suffering, and loss of enjoyment of life. The jury awarded the plaintiff the entire $18,078.00 in past medical expenses, but declined to award any damages for past or future physical pain and suffering, past or future mental suffering, loss of enjoyment of life, or future medical expenses. On October 19, 2015, the trial court rendered a judgment conforming to the jury verdict, and ordered each party to bear its own costs. The plaintiff filed a motion for judgment notwithstanding the verdict, or alternatively new trial or addittur, which was denied by the trial court on January 13, 2016.
On appeal, the plaintiff assigns five assignments of error. First, the plaintiff contends that the jury abused its discretion in not awarding him general damages in light of its finding that he incurred injuries in the accident as evidenced by its award of past medical expenses. Second, the plaintiff contends based on the special damages award he is entitled to be awarded the lowest reasonable general damage award. Third, the plaintiff maintains that the jury erred in failing to award him future medical expenses. Fourth, the plaintiff asserts that the trial court erred in not granting his judgment notwithstanding the verdict or a new trial. Finally, the plaintiff challenges the trial court's order that each party bear its own costs and seeks a remand of the matter to the trial court for hearing on the issue of costs, including expert fees.
LAW AND DISCUSSION
I. Jury's Failure to Award General Damages
General damages involve mental or physical pain or suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be measured definitively in terms of money. Boudreaux v. Farmer, 604 So.2d 641, 654 (La. App. 1st Cir.), writs denied, 605 So.2d 1373, 1374 (La. 1992). The primary objective of general damages is to restore the party in as near a fashion as possible to the state he was in at the time immediately preceding injury. Lohenis v. Rousse, 2014-1078 (La. App. 1st Cir. 3/9/15), 166 So.3d 1020, 1024. Special damages are those which must be specially pled or have a ready market value, that is, the amount of the damages supposedly can be determined with relative certainty. Id. Medical and related expenses are classified as special damages. See Id.
Under La. C.C. art. 2324.1, a jury has much discretion in the assessment of general damages. However, when a jury awards special damages but declines to award general damages, the reviewing court must determine whether the jury's finding is so inconsistent as to constitute an abuse of its much discretion. Green v. K-Mart Corporation, 2003-2495 (La. 5/25/04), 874 So.2d 838, 843-844. A trier of fact abuses its discretion in failing to award general damages where it finds that a plaintiff has suffered injuries causally related to the accident that required medical attention. Id., 874 So.2d at 844; See Thibodeaux v. Donnell, 2015-0503 (La. App. 1st Cir. 2/24/16), 189 So.3d 469, 475, writ granted, 2016-0570 (La. 6/3/16), 192 So.3d 756; Harris v. Delta Development Partnership, 2007-2418 (La. App. 1st Cir. 8/21/08), 994 So.2d 69, 83; Leighow v. Crump, 2006-0642 (La. App. 1st Cir. 3/23/07), 960 So.2d 122, 129, writs denied, 2007-1195 (La. 9/21/07), 964 So.2d 337, and 2007-1218 (La. 9/21/07), 964 So.2d 341.
The jury's award of the total amount of the plaintiff's claimed past medical expenses evidences that it found that the plaintiff had suffered injuries causally related to the March 2013 accident; therefore, the jury's failure to award general damages constitutes an abuse of discretion, warranting our de novo review of the record and the rendering of an appropriate award by this court. See Thibodeaux, 189 So.3d at 475-476; Harris, 994 So.2d at 83. In instances where the correction of the verdict is based on a finding of an abuse of discretion, such as in the instant matter, this court's award must necessarily be limited to raising the inadequate general damages award to the lowest amount reasonably within the jury's discretion. See Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La. 1977); Thibodeaux, 189 So.3d at 476; Harris, 994 So. 2d at 83.
Pain and suffering, both physical and mental, refers to the pain, discomfort, inconvenience, anguish, and emotional trauma that accompanies an injury. McGee v. A C and S, Inc., 2005-1036 (La. 7/10/06), 933 So.2d 770, 775. The elements of physical pain and suffering and associated mental anguish are conceptually related and to a large extent overlapping, and therefore difficult to precisely distinguish. Harris, 994 So.2d at 84. Accordingly, in correcting the jury's abuse of discretion, we choose to make one undifferentiated award to the plaintiff for past and future physical and mental suffering. Id.
The jury verdict form in the instant matter separately itemized the plaintiff's claim for loss of enjoyment of life. Loss of enjoyment of life is not a separate and distinct component from general damages. Nevertheless, the Louisiana Supreme Court has held that allowing a separate award for loss of enjoyment of life does not offend the existing concept of general damages and reflects the accepted method of listing elements of general damages separately. McGee, 933 So.2d at 774-775. Loss of enjoyment of life refers to detrimental alterations of the person's life or lifestyle or the person's inability to participate in the activities or pleasures of life that were formerly enjoyed prior to the injury. Whether a plaintiff experiences a detrimental lifestyle change depends on both the nature and severity of the injury and the lifestyle of the plaintiff prior to the injury. Id., 933 So.2d at 775. Only if detrimental changes in a victim's lifestyle (comparative to before the injuring event) would otherwise go uncompensated by other general damage awards is a separate award for loss of enjoyment of life warranted. Travis v. Spitale's Bar, Inc., 2012-1366 (La. App. 1st Cir. 8/14/13), 122 So.3d 1118, 1132, writs denied, 2013-2409 (La. 1/10/14), 130 So.3d 327, and 2013-2447 (La. 1/10/14), 130 So.3d 329.
The evidence presented at trial herein established that the plaintiff was involved in four previous automobile accidents - three in 2002 (January 2002, August 2002, and October 2002), and one in 2009. Additionally, the plaintiff was involved in a subsequent April 2014 automobile accident. The plaintiff testified that he suffered three herniated discs in the January 2002 accident. In discovery responses entered into evidence at trial, the plaintiff stated that he sustained injuries to his leg and lumbar region with an aggravation of his disc issues as a result of the August 2002 accident. The plaintiff's discovery responses further stated that he sustained injuries to his neck, both arms, shoulder, head, back, both legs and thighs following the October 2002 accident. Finally, the plaintiff's discovery responses provided that the plaintiff sustained injuries to his neck, back, shoulder and right arm in the 2009 accident. According to the plaintiff's discovery responses, all of his previous injuries fully resolved following treatment and all claims related to said injuries were settled out of court.
The medical evidence in this case establishes that following the March 2013 accident, the plaintiff underwent a total of eighteen months of medical treatment with three health care providers. Initially, the plaintiff sought chiropractic treatment from Dr. Ronald McMorris. The plaintiff presented to Dr. McMorris complaining of a history of low back pain, with a history of physical therapy, and neck, mid-back and low back pain, numbness and tingling of the hands. The plaintiff reported a recent history of being pain free. Over the course of seventeen visits with Dr. McMorris from March 27, 2013 to July 22, 2013, the plaintiff received chiropractic manipulations, muscle stimulation, and therapeutic exercises.
In July of 2013, Dr. McMorris ordered two MRIs, one of the cervical region and another of the thoracic region. The MRIs revealed an "old fracture" at T-2, no cord lesions and mild foramen narrowing by uncovertebral joint hypertrophy left C5-6, and mild disc bulging at C5-6 and C3-4. Noting that he was not a radiologist, Dr. McMorris offered no opinion at trial as to whether the fracture at T-2 was related to the March 2013 accident.
Dr. McMorris testified that initially the plaintiff did not report any improvement in his condition; however, after continued treatment improvement was reported. Dr. McMorris testified that he could not recollect why the plaintiff discontinued treatment after three-and-a half months, but assumed that it was so the plaintiff could receive pain management treatment. Dr. McMorris opined that it was more probable than not that the plaintiff's back and neck complaints were related to injuries sustained as a result of the March 2013 accident. Dr. McMorris diagnosed the plaintiff with cervical strain/sprain, lumbar strain/sprain, thoracic strain/sprain, migraine, stiffness, and muscle spasms.
The jury also was presented with medical records of Dr. Henry Young, the plaintiff's general physician. The plaintiff visited Dr. Young's office seven times, between May 3, 2013 and December 16, 2013, seeking treatment for mid to lower back pain, neck pain, and pain in his left hip, which the plaintiff related to the March 2013 accident. As part of his medical history, the plaintiff reported to Dr. Young that he had "old herniated discs prior to this accident." As treatment progressed, the plaintiff continued to report lower back pain, left hip pain, and neck, as well as numbness and pain radiating into his extremities. Dr. Young's treatment plan consisted of prescribing pain medications, anti-inflammatory medication, and steroids. Dr. Young's records note that he was aware that the plaintiff was undergoing chiropractic care and recommended that the plaintiff continue it. In September of 2013, Dr. Young recommended that the plaintiff seek pain management treatment.
Dr. Kevin McCarthy, an orthopedic surgeon, treated the plaintiff over the course of five visits from December 2013 to September 2014. Dr. McCarthy testified that when he initially saw the plaintiff in December of 2013, the plaintiff complained of neck pain radiating into his left arm and shoulder, as well as back pain radiating into his left and right legs. Dr. McCarthy's records indicate that the plaintiff reported the January 2002 motor vehicle accident and the receipt of an epidural steroid injection ("ESI") following that event. Dr. McCarthy testified that he became aware of the 2009 accident after obtaining medical records from the plaintiff's previous health care provider. The plaintiff denied having any problems with his neck prior to the 2013 accident.
At trial, Dr. McCarthy provided the following diagnosis of the plaintiff's injuries and condition: lumbar radiculopathy, cervical radiculopathy, degenerative disc disease, and a fracture at T-2. An MRI of the lower back ordered by Dr. McCarthy in January of 2014 revealed disc bulges at L4-5, L5-S1 and a narrowing of the foramina constricting the nerves at the same levels. Dr. McCarthy attributed the plaintiff's back pain complaints to these conditions, and recommended that the plaintiff undergo an ESI in his lower back.
Dr. McCarthy directly related the plaintiff's back and neck complaints to the March 2013 accident on the basis that the plaintiff reported that he did not have these symptoms prior to the accident. Dr. McCarthy also testified that the plaintiff's previous treatment for injuries sustained in earlier accidents, such as his neck, was irrelevant in his opinion as long as the plaintiff was asymptomatic from 2009 to 2013. Moreover, Dr. McCarthy testified that the fracture shown at T-2 in the July 2013 MRI of the plaintiff's cervical spine was "old," but qualified his testimony to note that a fracture would not show up as acute in a MRI taken four months after the trauma occurred; therefore, Dr. McCarthy testified the fracture at T-2 "could have occurred at the time of the accident
Dr. McCarthy administered a lower back ESI in February of 2014. When the plaintiff returned to see Dr. McCarthy on April 28, 2014, he reported that his back pain symptoms had responded to the ESI; however, the plaintiff reported that in the interim he had been in a subsequent automobile accident on April 5, 2014. Dr. McCarthy's records and testimony indicate that the plaintiff reported that his back and neck pain had worsened following the April 2014 accident. At that time, Dr. McCarthy recommended that the plaintiff undergo a second ESI in his lower back.
Dr. McCarthy last treated the plaintiff in September of 2014, approximately a year before trial. At that time, the plaintiff's primary complaint was neck pain. Dr. McCarthy's records show that he recommended that the plaintiff undergo an ESI in his neck. However, Dr. McCarthy testified that while he did not recommend an ESI for the plaintiff's neck until the September 2014 appointment, the plaintiff had been a candidate for both the neck and back ESIs "from day one." Dr. McCarthy explained that multiple injections cannot be administered at the same time and the order of injections must be prioritized dependent on where the patient is hurting the most.
The plaintiff testified that prior to the March 2013 accident he was not having any pain issues, but knew immediately following the accident that he had injured his neck and lower back. The plaintiff stated that when he first saw Dr. McMorris he was experiencing pain in his neck, shoulder, and lower back, which was radiating into his leg. The plaintiff stated that the chiropractic treatment he received from Dr. McMorris did "[n]ot really" help his injuries, and that he was unable to fully participate in and continue chiropractic care with Dr. McMorris because it was too painful. The plaintiff stated that Dr. McMorris suggested he see Dr. Young for pain medication so that he could tolerate the chiropractic treatments. However, according to the plaintiff, the pain medication did not help and he discontinued his chiropractic treatment with Dr. McMorris. The plaintiff testified that the ESI in his lower back performed by Dr. McCarthy helped "a little bit," but that his pain never abated and was continuing. The plaintiff stated that he did not undergo the neck or second lower back ESI recommended by Dr. McCarthy, because his insurance would not cover the procedures and that he could not afford the $6,000.00 fee for each procedure. The plaintiff did not seek any further medical treatment for complaints related to the March 2013 accident following the September 2014 appointment with Dr. McCarthy.
When questioned on the topic of prior automobile accidents, the plaintiff could recall being in only two accidents prior to the March 2013 accident - the January 2002 accident and the 2009 accident. The plaintiff denied any recollection of the August 2002 and October 2002 accidents, the injuries sustained therein, or the settlement of his legal claims associated with those accidents. He recalled the 2009 accident, but had no recollection of whether there was a legal settlement associated therewith. The plaintiff's testimony on the previous accidents contradicted the plaintiff's discovery responses wherein he reported that: (1) the August 2002 accident aggravated his disc injuries sustained in the January 2002 accident; and (2) as a result of the October 2002 accident he suffered injuries to his back, neck, both arms, shoulder, head, back of legs and thighs. Moreover, the plaintiff denied sustaining any new injuries as a result of the 2014 accident, and denied reporting to Dr. McCarthy that his neck and back pain worsened after the 2014 accident.
Finally, the plaintiff briefly testified as to the impact of the March 2013 accident on his life, stating that prior to the 2013 accident he and his family had a "great life," but, now, due to his injuries, he is no longer able engage in activities that he previously enjoyed doing with his two daughters, age ten and fourteen, such as playing in the park or walking around the mall. The plaintiff testified that his job operating a tug boat is not physically demanding, and no evidence was presented to demonstrate that the plaintiff had missed any work as a result of the March 2013 accident.
Given the nature of the plaintiff's injuries following the March 2013 accident and the duration of treatment, we find that the lowest general damage amount reasonably within the jury's discretion and consistent with the plaintiff's special damage award that could have been made was $40,000.00. See Tremblay v. Allstate Insurance Co., 2005-0956 (La. App. 4th Cir. 3/21/07), 955 So.2d 700, 704-705 (appellate court upheld a $40,000.00 award of general damages where the plaintiff was diagnosed with and treated for cervical and thoracic injuries for fifteen months, the plaintiff complained of headaches, finger numbness, stiffness, lack of mobility, back and shoulder pain, and muscle spasms throughout the course of her treatment, and physician attributed the cervical and thoracic injuries suffered to accident at issue, even though the plaintiff had been in a previous car accident and had pre-existing lower back complaints); Laurent v. Jolly-Wright, 2005-1499 (La. App. 4th Cir. 1/10/07), 950 So.2d 47, 49, writ denied, 2007-0283 (La. 3/23/07), 951 So.2d 1108 (appellate court upheld a $20,000.00 award for eight months of treatment for aggravation of pre-existing cervical condition, record contained evidence that plaintiff did not provide his treating physicians with complete and accurate information regarding his pre-existing medical problems and his subsequent and intervening accidents); Moraus v. Frederick, 2005-429 (La. App. 3rd Cir. 11/2/05), 916 So.2d 474, 481 (appellate court upheld $43,000.00 award for past pain and suffering for soft tissue injuries to arm, shoulder and neck with seventeen months of conservative treatment); Stelly v. Zurich American Insurance Co., 2011-1144 (La. App. 3rd Cir. 2/1/12), 83 So.3d 1225, 1228-1230 (general damage award of $20,000.00 increased to $43,000.00 for soft-tissue neck and back injuries sustained in rear-end collision required over twenty-eight months of chiropractic treatment); and compare Moore v. Kenilworth/Kailas Properties, 2003-0738 (La. App. 4th Cir. 1/7/04), 865 So.2d 884, 894-895, writs denied, 2004-0348 (La. 4/2/04), 869 So.2d 882, and 2004-0367 (La. 4/2/04), 869 So.2d 883. (affirmed award of $75,000.00 to plaintiff diagnosed with a compression fracture at the L1 vertebra after acoustical ceiling tiles fell on her in doctor's office, where appellate court noted that no contradictory evidence was admitted to contradict diagnosis).
The plaintiff underwent eighteen months of treatment. Both Dr. McMorris and Dr. McCarthy attributed his neck and back complaints to the March 2013 accident, despite pre-existing lumbar disc issues. Dr. McCarthy testified that the plaintiff's previous treatment for cervical injuries sustained in earlier accidents was irrelevant if the plaintiff was asymptomatic from 2009 to 2013. No evidence was offered to refute Dr. McCarthy's testimony on these issues, nor were the plaintiff's pre-accident medical records entered into the record. Despite discontinuing all medical treatment one-year before trial, the plaintiff reported at trial that he still experienced pain and continued limitations in his activities.
We do not find that Dr. McCarthy's testimony that the fracture found at T-2 "could" have been caused by the March 2013 accident sufficient to establish that it was more probable than not that the accident caused said fracture; thus, the plaintiff failed to meet his burden of proving a causal relation between the thoracic fracture and the March 2013 accident. --------
However, we cannot conclude that the jury abused its discretion in its refusal to award a separate general damage award in connection with the plaintiff's claim for "loss of enjoyment of life." Based on the limited testimony offered by the plaintiff regarding the impact of his injuries on his life, the jury evidently concluded that the plaintiff failed to prove that his injuries herein caused him a detrimental lifestyle change so as to warrant such an award. See McGee, 933 So.2d at 775. We find that there was sufficient evidence in the record to support such a finding by the jury.
II. Jury's Failure to Award Future Medical Expenses
When reviewing a jury's factual conclusions with regard to special damages, including the jury's decision to award no future medical expenses claimed by a plaintiff, an appellate court must satisfy a two-step process based on the record as a whole: first, there must be no reasonable factual basis for the fact finder's conclusions, and second, the finding must be clearly wrong. Kaiser v. Hardin, 2006-2092 (La. 4/11/07), 953 So.2d 802, 810 (per curiam).
Here, the jury awarded the plaintiff $18,087.00 in past medical expenses, but made no award for future medical expenses. Specifically, the plaintiff sought $12,000.00 to cover the expense of undergoing the ESIs to his back and neck recommended by Dr. McCarthy in April and September of 2014, respectively. The jury was confronted with expert testimony regarding treatment related to the March 2013 accident, evidence regarding the plaintiff's preexisting conditions, and conflicting testimony between the plaintiff and Drs. McMorris and McCarthy regarding the degree of benefit the plaintiff received from his treatments. Relevantly, there was conflicting testimony between the plaintiff and Dr. McCarthy regarding whether his back and neck pain worsened following the April 2014 accident. The jury was also presented with evidence that Dr. McCarthy did not recommend a second back injection or the first neck injection until after the April 2014 accident, as well as Dr. McCarthy's testimony that the plaintiff reported improvement in his back pain in the interim period between the February 2014 injection and the April 5, 2014 accident. In refusing to award the plaintiff future medical expenses for the second lower back and neck ESIs, the jury obviously found that these two treatments were necessitated by the April 2014 accident. Applying the two-step process enumerated in Kaiser and considering the record in its entirety, we are unable to say the jury abused its discretion in rendering for only past medical expenses.
Based upon our disposition of the merits set-forth above, it is unnecessary for us to address the plaintiff's assignment of error as to the trial court's denial of his motion for judgment notwithstanding the verdict, or alternatively new trial or addittur. See Leighow, 960 So.2d at 130; Thibodeaux, 189 So.3d at 480.
III. Allocation of Costs
While the general rule is that the party cast in judgment should be assessed with court costs, the trial court may assess costs in any equitable manner and against any party in any proportion it deems equitable, even against the party prevailing on the merits. See La. C.C.P. art. 1920; Bourg v. Cajun Cutters, Inc., 2014-0210 (La. App. 1st Cir. 5/7/15), 174 So.3d 56, 73, writs denied, 2015-1253 (La. 4/4/16), 190 So.3d 1205, and 2015-1306 (La. 4/4/16), 190 So.3d 1201. Reasonable expert witness fees are permissible costs for which a party may be cast. Washington v. Lyons Specialty Co., 96-0263 (La. App. 1st Cir. 11/8/96), 683 So.2d 367, 381, writ denied, 96-2944 (La. 1/31/97), 687 So.2d 408. When a prevailing party is taxed with the costs of a proceeding it is usually because that party, in some way, incurred additional costs pointlessly or engaged in other behavior that justified an assessment of costs against that litigant. Polk Chevrolet. Inc. v. Webb, 572 So.2d 1112, 1116 (La. App. 1st Cir. 1990), writ denied, 575 So.2d 394 (La. 1991).
Our finding that the jury's damage award herein constituted an abuse of discretion and our rendering of a new award for general damages, makes it appropriate to remand this matter to the trial court for the limited purpose of reconsidering the distribution of costs, including expert fees. Therefore, we remand this matter to the trial court for the limited purpose of conducting a hearing to determine an appropriate award for costs, including expert fees, in keeping with the findings of this opinion.
CONCLUSION
The trial court's judgment rendered in conformity with the jury's verdict is reversed insofar as it failed to award general damages to the plaintiff, and ordered each party to bear its own costs. We render judgment in favor of the plaintiff-appellant, Jason McLin, for $40,000.00 in general damages. We remand this matter to the trial court for a hearing and determination on the issue of costs in accordance with our findings herein. The costs of this appeal are to be divided evenly between the parties.
REVERSED IN PART; RENDERED; REMANDED.