Baldwin v. Kuhl

554 So. 2d 193, 1989 La. App. LEXIS 2486, 1989 WL 150185
CourtLouisiana Court of Appeal
DecidedDecember 6, 1989
DocketNo. 20981-CA
StatusPublished

This text of 554 So. 2d 193 (Baldwin v. Kuhl) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baldwin v. Kuhl, 554 So. 2d 193, 1989 La. App. LEXIS 2486, 1989 WL 150185 (La. Ct. App. 1989).

Opinion

MARVIN, Judge.

In this appeal of a judgment awarding damages totaling more than $450,000 in a personal injury action arising out of a rear-end collision, each litigant seeks to modify the jury's assessment of damages.

Defendants, who are the driver, owner, and liability insurer of the 18-wheeler that rear-ended plaintiff and who admitted liability, seek to reduce, as abusively excessive and unsupported, the general damage award of $400,000 and the award for future medical expenses of $35,000. Plaintiff seeks to increase the general damage award and the award of past medical expenses of $15,025.

We amend to reduce the general damage award to $200,000 and the future medical award to $15,000, and, as amended, affirm.

FACTS

The accident occurred May 12, 1987, while Louis Baldwin, a 73-year-old retiree for about 14 years, was driving his pickup on a highway from his home in Coushatta to his garden a few miles away. The impact threw Baldwin against the interior of the pickup and partly beneath the steering wheel. Without losing consciousness, but experiencing breathing difficulty, he crawled from the truck and remained on or near the ground while awaiting an ambulance. He explained his thoughts: “I didn’t think I’d ever see Coushatta again. I mean that. I thought that was it.”

Baldwin was hospitalized from May 12 until June 1 for injuries that included a broken rib, partial collapse (15-20 percent) [195]*195of a lung, and pneumonia caused by his immobilization. He wore a rib splint for about eight weeks to restrict his movement and decrease pain and was confined to bed at home for about three weeks after he left the hospital.

Baldwin periodically saw Dr. Huckabay, his treating physician, for complaints of chest and back pain. In August 1987 he was referred to Dr. Anglin, an orthopedic surgeon, when he began to experience severe neck pain and headaches.

Dr. Anglin found a limited range of neck motion, both up and down and side to side. Reviewing x-rays made during Baldwin’s hospitalization, he found muscle strain and mild' degenerative arthritis in Baldwin’s cervical and lumbar spine. Dr. Anglin prescribed anti-inflammatory medication, a muscle relaxant, and a cervical collar to restrict movement and relieve pain. At trial in November 1988, Baldwin still had neck pain and was still wearing the hard cervical collar whenever he left the house.

Baldwin began experiencing numbness and tingling in his right arm in late 1987, which, according to Dr. Anglin, was caused by either a cervical disc or a bone spur impinging on a nerve root. The nerve root impingement was confirmed by a CT scan done in May 1988 at Dr. Huckabay’s request. Because of his age, Baldwin was not considered a good candidate for cervical disc surgery, which he declined. His left arm developed numbness in August 1988. Because of the numbness in both arms, Baldwin often drops things.

In February 1988, Dr. Anglin prescribed a TNS unit (transcutaneous nerve stimulator, which generates a low electrical charge) to relieve the pain, stiffness and muscle spasms in Baldwin’s neck. Baldwin still wears the TNS unit daily, except when sleeping. The doctors expected him to continue to need the stimulator, the cervical collar, medication, and heat packs to relieve his neck pain in the future.

In January 1988, eight months after the accident, Baldwin developed fever and chills from a viral infection. He was hospitalized for several days because the severity of the infection was worsened by the residual effect of his injuries from the accident.

Baldwin again was hospitalized for one night in September 1988 for fever and chills. Two days later it was discovered he had a urinary tract infection that was not medically related to the accident. Baldwin contends, in answer to the appeal by defendants, that the award for past medical should be increased to include the medical expenses for this treatment. See discussion of this issue, infra.

Baldwin has smoked cigarettes for about 50 years. He testified that he smoked a pack a day for 10-12 years in his “younger days,” but smoked only two cigarettes a day for some unstated period before the accident. Baldwin testified that he still smokes, “but not much.” His wife testified that after the accident Baldwin smokes or chews tobacco “constantly.” Both testified that he began having daily coughing spells only after the accident.

Baldwin has had pneumonia twice, once about a year before the accident and once immediately following the accident while hospitalized. He also has fibrosis, or decreased elasticity of the lung tissue which occurs with aging and increases in degree with the number of cigarettes smoked. Baldwin was advised to stop smoking to avoid further aggravation of his respiratory problems.

Pulmonary function tests done on Baldwin in March and September 1988 showed Baldwin’s lung capacity to be less than half of the “normal” or expected capacity. He receives intermittent outpatient “positive pressure breathing treatments,” inhaling oxygen or medication to clear his lungs and aid his breathing.

Baldwin still experiences headaches, pain and limited range of motion in his neck, numbness in his arms, and breathing difficulties. Dr. Huckabay expected these problems to continue and explained that Baldwin’s ability to breathe was affected by such things as his smoking, his fibrosis, the trauma of the accident, and his two bouts with pneumonia. Dr. Huckabay felt Baldwin would be susceptible to respirato[196]*196ry infections in the future, and possibly to falls because of his restricted mobility.

Before the accident Baldwin, who had been retired from work for 14 years, worked in his garden five or six days a week, did yard work at his home, and enjoyed fishing and hunting.

Baldwin testified that he had not hunted, fished, or worked in his garden since the accident, and that he had tried, but was unable to do, yard work because of his breathing difficulties and the weakness in his arms. He walks about four blocks a day for exercise. He drives only for short distances because his headaches make it difficult for him to “focus very long in one direction.” His short walks and drives are his only activities. He has trouble sleeping since the accident, and seems nervous and restless to his wife and a long-time friend.

GENERAL DAMAGES

Defendants concede that Baldwin’s injuries from the accident contributed to his respiratory problems, aggravated the degenerative arthritis in his neck, and significantly changed his lifestyle from active to sedentary.

The $400,000 general damage award is an abuse of the jury’s discretion for a 73-year-old plaintiff because some of Baldwin’s neck pain has been reduced with medication, the cervical collar and the TNS unit, and because he has had no “acute illness” attributable to his respiratory problems after the initial hospitalization, he continues to smoke against medical advice, and he is not confined or immobile, but is able to walk and drive for short distances. Defendants ask that we reduce the award to $60,000. Baldwin asks that we increase it to $725,000 because his pain and physical limitations are expected to continue for the rest of his life.

Our review convinces us that the general damage award is abusively high for the reasons which we have summarized in the above paragraph which are supported by the record. In such circumstances, we reduce the award to the highest amount we find to be within the jury’s

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Bluebook (online)
554 So. 2d 193, 1989 La. App. LEXIS 2486, 1989 WL 150185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baldwin-v-kuhl-lactapp-1989.