Judgment rendered September 25, 2019. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 52,720-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
BENJAMIN PERRY Plaintiff-Appellant
versus
STARR IMDEMNITY & Defendants-Appellees LIABILITY COMPANY, HUMBERTO MATA AND YELLOWJACKET OILFIELD SERVICES, L.L.C.
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 148883
Honorable Michael Owens Craig, Judge
MORRIS, DEWITT & SAVOIE, LLC Counsel for Appellant By: Brandon Trey Morris Benjamin Perry G. Adam Savoie Meagan E. Shadinger
LAW OFFICES OF KYLE M. ROBINSON By: Kyle M. Robinson GIEGER, LABORDE & LAPEROUSE, LLC Counsel for Appellees By: Rachel Guajardo Webre Starr Indemnity & Michael D. Cangelosi Liability Company and Humberton Mata
THOMPSON, COE, COUSINS, & IRONS Counsel for Appellee By: Scott T. Winstead Yellowjacket Oilfield Doris Ann Louise Royce Services, LLC
Before PITMAN, GARRETT, and STONE, JJ.
PITMAN, J., concurs in the result.
GARRETT, J., concurs in the result. STONE, J.
FACTS AND PROCEDURAL HISTORY
Benjamin Perry (the “plaintiff”) suffered back and neck injuries in an
automobile collision on September 14, 2015. He was a passenger in a Ford
F-250 driven by Humberto Mata (“Mata”), who crashed the F-250 into the
rear end of another vehicle. Mata was in the course and scope of his
employment for Yellow Jacket Oilfield Services, LLC (“Yellow Jacket”), at
the time of the collision. Starr Indemnity & Liability Company (“Starr”)
issued a liability insurance policy covering Mata and Yellow Jacket in
connection with the subject accident. The plaintiff filed a personal injury
action against Mata, Yellow Jacket, and Starr, which was decided via jury
trial held in April of 2018.
In early January of 2017, Dr. Donald Smith (“Dr. Smith”) conducted a
physical examination of the plaintiff pursuant to La. C.C.P. art. 1464. Dr.
Smith testified that, in his medical examination of the plaintiff, the plaintiff
denied having any pre-existing neck or back conditions.
The trial court admitted Dr. Smith as an expert in spine surgery. He
testified that he reviewed the plaintiff’s pre-accident and post-accident
medical records relating to his back and neck pain. These records reflect that
the plaintiff obtained treatment for back and neck pain on numerous
occasions prior to the accident, as early as 2009, when the plaintiff told his
chiropractor that he felt “90 years old.” The pre-accident medical records
revealed that the plaintiff, at times, suffered significant pain if he stood or sat
for too long, and sometimes could not sleep well because of his pain. He
also rated his back pain as high as “7/10,” and only as low as “5/10,” months
before the accident. The plaintiff underwent treatment for these pre-existing conditions within the year preceding the subject collision, and was
diagnosed with a herniated disc in 2015, prior to the wreck. Dr. Smith
opined that the post-accident MRIs of the plaintiff’s spine reflected pre-
existing degenerative disc disease in two joints of his cervical spine and two
joints of his lumbar spine. He further described the affected lumbar joints as
bulging discs. On cross-examination, the plaintiff admitted that he suffered
from pre-existing back injuries significant enough that he once required
emergency room treatment and narcotic pain medication.
Dr. Smith opined that the wreck aggravated the plaintiff’s pre-existing
conditions in both his low back and his neck. However, Dr. Smith stated that
he believed the aggravation in the plaintiff’s neck to be only temporary.
Finally, Dr. Smith testified that it was difficult to precisely judge the extent
of aggravation caused by the wreck (as opposed to what the plaintiff’s
condition would be had the wreck not occurred).
Dr. Pierce Nunley (“Dr. Nunley”) began treating the plaintiff two days
after the wreck. Dr. Nunley gave the plaintiff steroid injections in his
cervical spine and lumbar spine to control his pain. The plaintiff had a total
of six cervical injections between December 28, 2015, and a week before the
trial in April of 2018. In January of 2017, Dr. Nunley conducted a two-level
lumbar fusion surgery on the plaintiff. After the lumbar fusion surgery, the
plaintiff only had two lumbar injections. Dr. Nunley explained that, during
the first year after the surgery, these injections were necessarily limited
because the steroid could inhibit the bone fusion that the surgery was
intended to cause.
Dr. Nunley was deposed in June of 2017. Therein, he testified he
could not state that the plaintiff would probably need a cervical fusion 2 surgery in the future; however, he testified he would be able to render a
prognosis after the plaintiff’s one-year postoperative visit in January of
2018. Nonetheless, on June 27, 2017, (roughly 5 weeks after his deposition)
Dr. Nunley collaborated with the plaintiff’s lifecare planner, Lacy Sapp, and
formulated the following lifecare plan for the plaintiff:
Option 1. The plaintiff would receive cervical and lumbar
injections 3 to 4 times per year for the rest of his life,
and, 20 to 30 years later, would have a second lumbar
fusion at the levels adjacent to his prior fusion.1
Option 2. The plaintiff would undergo three additional spine
surgeries: (1) a second lumbar fusion at the adjacent
levels; (2) a cervical fusion; and (3) a second cervical
fusion at the adjacent levels. Under this option, the
plaintiff would also receive lumbar injections 3 to 4
times per year for the rest of his life.2
At trial, Dr. Nunley was accepted as an expert in spine research, spine
treatment, and spine surgery. On direct examination, he testified that the
wreck aggravated the plaintiff’s pre-existing injuries and necessitated the
future treatment outlined in the lifecare plan. He also testified that the wreck
caused the plaintiff to go from having neck and back pain intermittently to
1 Lacy Sapp testified that option 1 would cost $1,518,320. The plaintiff’s economist, Dr. Michael Kurth, testified that, after adjusting for inflation, etc., the jury would need to award the plaintiff $2,612,313 to cover the cost of future treatment option 1. 2 Lacy Sapp testified that option 2 would cost $1,193,000. Dr. Michael Kurth testified that after providing for inflation the jury would need to award $1,712,423 to cover the cost of future treatment option 2. 3 having such pain constantly, and that this pain would continue for the rest of
the plaintiff’s life.
Dr. Nunley stated at trial the plaintiff was more likely to need the
course of treatment reflected in “option 2”than that reflected in “option 1.”
However, on cross-examination, Dr. Nunley seemed to contradict
himself regarding whether it was more likely than not that the plaintiff’s
need for the treatment in the lifecare plan would be nonexistent but for the
accident:
Q:… Do you agree that all the treatment that is in your life care plan is related solely more probably than not… to September 14, 2015 and what happened that night? A:… I think to say that its solely I don’t think you can necessarily say that. Q: Because some of that care he would have received anyway because of the [pre-existing] condition of his back? A: Possibly. Q:… Can you say more probably than not that all of the care that you have recommended in the lifecare plan is related only to the [subject] accident…and nothing else? A: Well see here is the quandary. I can’t say more probably than not that it wouldn’t be. Q: So can you say more probably than not that it is? A: Correct.
Michael Frenzel (“Frenzel”), lifecare planning expert for the defense,
testified that he reviewed Dr. Nunley’s deposition and, based thereon,
concluded that the creation of a lifecare plan was not warranted in this case.
Frenzel explained that items of future care should only be included in the
lifecare plan if: (1) the item of care is more probable than not to occur; and
(2) it is related solely to the incident being sued upon. Frenzel testified that
he so concluded because Dr. Nunley, in his deposition, did not testify as to
specific items of future care that would more probably than not occur and
which were related solely to the plaintiff’s accident. 4 At trial, the defense confronted Dr. Nunley regarding the
inconsistency between his deposition testimony, wherein he refused to
testify that it was more probable than not that the plaintiff would need
surgery in the future, and the lifecare plan, wherein he recommended up to
three future surgeries as being more probably than not necessary for the
plaintiff. At first, Dr. Nunley basically had no answer when asked the reason
for such a remarkable change during the five weeks between his deposition
and his creation of the lifecare plan:
A: Uh, based on you know the patient, uh, what they needed to adjust to – to respond to, uh, different therapies and – and again, reasonable is also, you know, I said reasonable it is reasonable, but of few look at it from a scientific standpoint it’s also more probable than not
Later, Dr. Nunley stated that “talking through it” with the plaintiff’s life care
planner brought about the changes in his opinion. Finally, Dr. Nunley
explained that, in his deposition, he probably was thinking only about the
near future, while in doing the lifecare plan, he was thinking about the rest
of the plaintiff’s life. He admitted, however, that he did not remember the
questions in the deposition being limited to only the near future.
Additionally, Dr. Nunley admitted that, at the time he formulated the
life care plan: (1) he did not recall the plaintiff ever revealing his pre-
existing conditions to him (Dr. Nunley); and (2) he was completely unaware
that a lifecare plan should only include care related solely to the accident at
issue; and (3) he had not reviewed the plaintiff’s pre-accident medical
records at the time he did the lifecare plan.
Finally, Dr. Nunley qualified his recommendation of 3 to 4 steroid
injections per year by stating that 4 is the “absolute maximum” number of
injections that plaintiff could receive in a year, and that the injections should 5 only be given on an as-needed basis to treat pain symptoms. Dr. Nunley
declined to testify that he had seen a patient receive 3 to 4 injections per year
for even 10 years; likewise, he declined to testify that he knew of medical
literature supporting such a practice. Dr. Nunley testified only that he had
seen patients receive “multiple injections for multiple years.”3 Additionally,
Dr. Nunley admitted that, once the plaintiff had a cervical fusion surgery, he
would no longer need the steroid injections into his cervical spine.
Dr. Steve Allison (“Dr. Allison”) performed a “functional capacity
evaluation” on the plaintiff. He testified at trial that the plaintiff suffered a
permanent loss of function as a result of the wreck. He further testified that
the plaintiff has the following permanent physical safety limitations as a
result of the wreck:
lifting (shoulder to overhead) – do not exceed 40 pounds
lifting (floor to waist) – do not exceed 50 pounds
lifting (waist to shoulder) – do not exceed 40 pounds
carrying, pulling, pushing – do not exceed 50 pounds
crawling – never
Dr. Allison testified that, while the plaintiff may be physically capable of
exceeding those limitations, it is unsafe for him to do so.
The plaintiff testified that, before the wreck, he engaged in the
following activities: (1) deer hunting with a bow and arrow (during the
season); (2) golfing every other weekend; (3) fitness/working out; (4)
competing in triathlons; (5) fishing as often as possible; (6) “two-stepping”
3 However, he did state that some pain doctors do administer more than four steroid injections per year, but he disagrees with that practice. 6 with his wife; (7) activities with his stepson, Kason. He testified that, post-
accident, he cannot: golf, compete in triathlons, fish as frequently, two-step
with his wife, deer hunt with a bow and arrow, or do the same activities with
his stepson, Kason.
Specifically, the plaintiff testified that he could not lift the 50-pound
sack of corn used for baiting deer, or draw the bowstring to shoot a deer. He
testified that he cannot golf at all or compete in triathlons at all. He further
testified that he has not been “two stepping” with his wife since the accident,
and that he has difficulty sitting in the boat when fishing. The plaintiff also
testified that, post-accident, he “definitely does not lift Kason,” his older
stepson. He was impeached on that point. After calling his attention to that
testimony, the defense presented a picture of the plaintiff, post-accident,
throwing Kason into the air (while they were in a swimming pool). That
picture was taken on June 23, 2016, i.e., approximately 9 months after the
accident. Kason was around 10 years old at the time picture was taken.
In closing arguments, defense counsel suggested that the jury reduce
the award for future medical expenses by 50% both the recommended
number of annual steroid injections and the number of years that the plaintiff
would receive them. The defense then suggested that the jury should further
reduce the resulting future medical expenses total of $827,155 by 1/3 to
account for the role of the plaintiff’s pre-existing conditions in necessitating
the future treatment outlined in the lifecare plan. The total after that
suggested reduction came to $545,000, the exact amount of future medical
expenses that the jury awarded.
The jury also awarded the plaintiff $250,000 for past and future
physical pain and suffering, approximately $40,000 in lost wages, and 7 approximately $315,000 and past medical expenses, for a total of
$1,149,509.27 in total damages. The jury refused to award the plaintiff
damages for loss of enjoyment of life.
Thereupon, the plaintiff filed a motion for judgment notwithstanding
the verdict (“JNOV”) seeking to increase the award for future medical
expenses and general damages. Regarding the future medical expenses, the
plaintiff argued that his expert evidence was “uncontradicted,” and that this
left the jury no basis to award less than suggested by the plaintiff in his
evidence.
The trial judge denied the JNOV and issued written reasons.
Regarding future medical expenses, the trial judge found that the plaintiff’s
evidence was not uncontradicted. The trial judge cited Green v. K-mart,
2003-2495 (La. 5/25/2004), 874 So. 2d 838, for the proposition that the jury
permissibly made a credibility determination regarding the amount of
damages for future medical expenses. Therein, the Louisiana Supreme Court
stated:
Credibility determinations are for the trier of fact, even as to the evaluation of expert witness testimony. A fact-finder may accept or reject the opinion expressed by an expert, in whole or in part. The trier of fact may substitute common sense and judgment for that of an expert witness when such a substitution appears warranted on the record as a whole.
Green, supra at 843.
The plaintiff urges three assignments of error in this appeal: (1) the
jury’s award of $545,000 for future medical expenses was so low as to be
manifestly erroneous; (2) the jury’s award of $250,000 for past and future
physical pain and suffering was abusively low; and (3) the jury’s award of
$0.00 for loss of enjoyment of life was abusively low. 8 In rebuttal, the defense makes three arguments. First, the defense
points out that the testimony of the plaintiff’s medical expert, Dr. Nunley,
was substantially impeached in regard to the plaintiff’s future treatment
needs and the causal relationship, if any, between those needs and the
accident. Second, the defense contends that the plaintiff had serious pre-
existing conditions and the degree of aggravation that the wreck caused was
less than the plaintiff claimed. Third, the defense points out that the
plaintiff’s own testimony regarding his post-accident loss of enjoyment of
life was his only support for that claim, and that the jury was within its
discretion to reject that testimony.
DISCUSSION
The fountainhead of Louisiana tort liability is La. C.C. art. 2315,
which provides that “every act of man that causes damage to another obliges
him by whose fault it happened to repair it.” “The term ‘damages’ refers to
‘pecuniary compensation, recompense, or satisfaction for an injury
sustained.’” McGee v. A C And S, Inc., 2005-1036 (La. 7/10/06), 933 So. 2d
770, 773, citing Fogle v. Feazel, 201 La. 899, 10 So. 2d 695, 698 (1942). In
the tort context, La. C.C. art. 2315 authorizes compensatory damages, which
are designed to restore the plaintiff to the state he would have been in but for
the tort. McGee, supra at 774, citing Frank L. Maraist & Thomas C.
Galligan, Jr., Louisiana Tort Law §7-1 (Michie 1996).
Compensatory damages are classified as either “special” or “general.”
McGee, supra at 774. On appeal, the standard of review applicable depends
on the classification of the particular item of damages at issue. “Special
damages” are those which have a ready market value, i.e., their value can be
determined with relative certainty. Smith v. Escalon, 48,129 (La. App. 2 Cir. 9 6/26/13), 117 So. 3d 576, 583. Future medical expenses are an item of
special damages. Guillory v. Insurance Co. of North America, 96-1084 (La.
4/8/97) 692 So. 2d 1029, 1031-2. A jury’s decision regarding special
damages is subject to manifest error review. This standard only allows an
appellate court to adjust a damages award where: (1) there is no reasonable
factual basis for the jury’s decision; and (2) the decision is clearly wrong. Id.
“General damages are those which may not be fixed with pecuniary
exactitude; instead, they involve mental or physical pain or suffering,
inconvenience, the loss of intellectual gratification or physical enjoyment, or
other losses of life or lifestyle which cannot be definitely measured in
monetary terms.” Smith at 581 citing Duncan v. Kansas City So. Ry. Co., 00-
0066, p. 13 (La. 10/30/00), 773 So.2d 670, 682.
A jury’s verdict regarding the amount of general damages, if any,
awarded to a personal injury plaintiff is subject to abuse of discretion
review. Bouquet v. Wal-Mart Stores, Inc., 2008-0309 (La. 4/4/08), 979
So.2d 456, 458-9. The trier of fact is granted “vast discretion” in fixing
general damage awards. Duncan, supra at 682. In determining whether an
award is abusively low, “the evidence must be viewed in the light most
favorable to the defendant.” Evans v. Kilbert, 27, 101 (La. App. 2 Cir.
8/23/95) 660 So.2d 167, 168, citing Higginbotham v. Ouchita Parish Police
Jury, 513 So.2d 537 (La. App. 2 Cir. 1987). An appellate court may disturb
a damages award only after an articulated analysis of the facts reveals an
abuse of discretion. Bouquet, supra at 459. A reviewing court’s role is to
examine the facts and circumstances of the case to determine whether the
fact finder has abused its discretion. Id.
10 Only if such examination reveals an abuse of discretion is it
appropriate for the appellate court to resort to review of prior similar awards.
Id. The test is whether the subject award is “greatly disproportionate to the
mass of past awards for truly similar injuries.” Id. The appellate court, upon
finding an abusively low award, increases the award to the lowest amount
reasonable trier of fact could have awarded. Smith, supra at 581-82; Evans v.
Kilbert, supra 27, 101 (La. App. 2 Cir. 8/23/95), 660 So. 2d 167, 168.
Pre-existing conditions; future medical expenses
In Smith, supra, we explained the parameters of the defendant’s
liability for aggravation of a pre-existing medical condition:
A defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct. Although the victim’s damages may be greater because a prior condition was aggravated by the tort, the tortfeasor is, nevertheless, responsible for the consequences of his tort. Nevertheless, before recovery can be granted for aggravation of a pre-existing condition, a causative link between the accident and the victim’s current status must also be established. (Internal citations omitted).
Id. at 581. Thus, regarding the aggravation of a pre-existing condition, the
defendant is liable only for the “natural and probable consequences” of that
aggravation. In Baw v. Paulson, 50,707 (La. App. 2 Cir. 6/29/16), 198 So.3d
186, 194-195, we held that the jury can properly reduce an award of future
medical expenses to the extent they are necessitated by pre-existing
conditions rather than the subject incident. A defendant is not liable for
future medical expenses that would be incurred regardless of the
aggravation.
Pre-existing conditions. It was established at trial that the plaintiff
had pre-existing medical problems with his lower back and neck, including
11 degenerative disc disease. Dr. Nunley testified that but for the collision, the
plaintiff would not be having the neck and back problems to the same extent
he is having now.
Dr. Nunley also admitted that he did not recall the plaintiff ever
telling him about the plaintiff’s pre-existing neck and back conditions,
despite the numerous consultations, visits and treatments, and that he had not
reviewed the plaintiff’s medical records as of the time he made the lifecare
plan.
Dr. Smith testified that the plaintiff’s back and neck problems were
caused by the combination of the wreck and plaintiff’s pre-existing
conditions. Importantly, Dr. Smith also testified that it was difficult to
precisely judge the extent of aggravation caused by the wreck (as opposed to
what the plaintiff’s condition would be had the wreck not occurred).
Future medical expenses. The premise of the plaintiff’s argument is
that his experts – Dr. Nunley, Lacy Sapp, and Dr. Kurth – were the only
experts to testify regarding the plaintiff’s future medical treatment needs,4 or
the cost thereof. From that premise, which is not entirely true, the plaintiff
concludes that his “uncontradicted” evidence sufficiently proved the cost
and medical necessity of option 1, supra, or option 2, supra, and therefore
the jury had no choice but to award damages accordingly. The plaintiff, in
effect, would have this court hold that Dr. Nunley’s testimony was binding
on the jury – regardless of the defense’s extensive impeachment of Dr.
Nunley’s testimony.
4 Dr. Donald Smith was barred from testifying in that regard because the defendants failed to timely disclose Dr. Smith’s opinions prior to trial. 12 The defendants make several arguments in rebuttal. First, they point
out that both Dr. Nunley and Dr. Smith testified that spinal injections should
only be prescribed on an as-needed basis to treat pain symptoms, and that
Dr. Nunley testified that four injections per year was the “absolute
maximum” that he would administer to the plaintiff. Dr. Nunley also
conceded that, of the two options set forth in the lifecare plan, “option 2,”
involving a cervical fusion surgery, was more likely – and that, once the
plaintiff had the cervical fusion, steroid injections to the cervical spine
would be unnecessary. Based on that admission, the defense argues that it
was reasonable for the jury to reject Dr. Nunley’s initial testimony that the
plaintiff would need 3 to 4 injections per year for the next 45 years (i.e., his
remaining life expectancy).
Second, Dr. Smith testified that both the pre-existing spinal condition
and the subject collision were factors in the plaintiff’s complaints and
treatment post-accident. Dr. Smith further testified that it was difficult to
judge the degree of aggravation of the pre-existing condition caused by the
subject collision.
Third, on cross-examination of Dr. Nunley, the defense highlighted
the substantial inconsistencies between Dr. Nunley’s deposition testimony
and his recommendations in the lifecare plan. Michael Frenzel, lifecare
planning expert for the defense, testified that he reviewed Dr. Nunley’s
deposition and, based thereon, concluded that the creation of a lifecare plan
was not warranted in this case. Frenzel explained that items of future care
should only be included in the lifecare plan if: (1) the item of care is more
probable than not to occur; and (2) it is related solely to the incident being
sued upon. Frenzel stated that he based his conclusion on the fact that Dr. 13 Nunley, in his deposition, did not testify as to specific items of future care
that would more probably than not occur and which were related solely to
the plaintiff’s accident. For instance, at trial, Dr. Nunley admitted that in his
deposition testimony, he declined to state that future cervical surgery was
probable for the plaintiff; he said he could not predict that probability.
Based upon the foregoing, the defense suggested in closing argument
that the jury could properly reduce the amount of future medical expenses.
We agree. Under Green, supra, the jury was entitled to substitute its
common sense and judgment for the conclusions of Dr. Nunley. That is so
for several reasons. First, Dr. Nunley vacillated regarding whether plaintiff
would still need any of the items in the lifecare plan had he not been in the
accident. Second, Dr. Nunley changed his recommendation – that the
plaintiff receive 3 to 4 injections per year – to the plaintiff receiving
injections on an as-needed basis, not to exceed the “absolute maximum” of 4
injections per year. Third, Dr. Nunley declined to testify that he had ever
given a patient 3 to 4 steroid injections per year for even 10 years; he would
only state that he had seen patients given “multiple injections for multiple
years.” However, he did state that pain doctors do administer such courses of
treatment, but he disagrees with administering more than four steroid
injections per year. Fourth, Dr. Nunley admitted that, once the plaintiff had a
cervical fusion surgery, he would no longer need the steroid injections into
his cervical spine.
Furthermore, Baw, supra, authorized the jury to reduce the award of
future medical expenses to the extent it determined that they are necessitated
by the plaintiff’s pre-existing injuries. The jury did not commit manifest
14 error in making that determination. Accordingly, this assignment lacks merit
and is denied.
Physical pain and suffering
The jury awarded the plaintiff $250,000 for past and future physical
pain and suffering. The plaintiff asserts that $250,000 is abusively low. He
cites the following as proof: (1) his post-accident lumbar fusion surgery; (2)
Dr. Nunley’s recommendation of up to three additional spine surgeries; (3)
Dr. Nunley’s testimony that the plaintiff would have back and neck pain for
the rest of his life as a result of the subject collision; (4) the plaintiff’s
remaining life expectancy of 45 years. The plaintiff cites Daigle v. City of
Shreveport, 46,429 (La. App. 2 Cir. 10/5/11), 78 So. 3d 753, writ denied
2011-2472 (La. 2/3/12), 79 So. 3d 1027, For the proposition that a $400,000
future pain and suffering award to a 69-year-old plaintiff needing two future
spine surgeries was not an abusively high award.
The defense points out that the plaintiff admitted on cross-
examination that he rated his back pain is highest 7/10 and only as low as
5/10 just months before the accident. He also admitted that he treated for
lumbar, thoracic, and cervical spine problems for years prior to the accident,
and was even diagnosed with a herniated disc within a year of the subject
collision.
Additionally, the plaintiff’s testimony was impeached at trial.
Specifically, the plaintiff testified that, post-accident, he “definitely does not
lift Kason,” his older stepson. After calling his attention to that testimony,
the defense presented a picture of the plaintiff, post-accident, throwing
Kason into the air (while they were in a swimming pool). That picture was
15 taken on June 23, 2016, i.e., approximately nine months after the accident.
Kason was around 10 years old at the time picture was taken.
We see no abuse of discretion in this award. This assignment of error
lacks merit and is denied.
Loss of enjoyment of life
The jury awarded $0.00 for loss of enjoyment of life. The plaintiff
asserts that this non-award was abusively low. The Louisiana Supreme
Court, in McGee, supra, explained:
Loss of enjoyment of life, in comparison [to pain and suffering]…refers to the detrimental alterations of a person’s life or lifestyle or a person’s inability to participate in the activities or pleasures of life that were formerly enjoyed prior to the injury. In contrast to pain and suffering, whether or not the 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. at 775. The court also provided the following illustration of how the
plaintiff’s lifestyle can determine the availability of such an award:
Consider, for example, two boys, one athletic and the other artistic, who are both involved in an accident and suffer similar injuries. Presumably, each boy should be awarded a similar quantum of damages for pain and suffering. However, the same injury may affect the boys very differently. The artist’s lifestyle was not drastically altered by the accident, as he was able to resume his artistic activities after the accident, whereas the athlete’s lifestyle is altered significantly, as he has to resign from his team and can no longer participate in athletics. Arguably, the athlete may be entitled to a greater pain and suffering award if he can demonstrate his mental anguish occasioned by the accident and its consequences. The athlete is damaged, however, well beyond his mental anguish over not being able to participate in athletics because now the athlete is forced to drastically alter his lifestyle as a result of his accident. The athlete is no longer able to participate in athletics, in competition or at practice, and has to find another avocation to fill his leisure time. Moreover, he no longer spends a significant 16 amount of time with his teammates and is forced to seek out new friends. These detrimental changes in lifestyle go uncompensated in an award for pain and suffering. Under these circumstances, the drastic lifestyle change required of the athlete, as compared with the artist, warrants an additional award for the athlete’s loss of enjoyment of life.
Id.
As proof of loss of enjoyment of life, the plaintiff cites the testimony
of Dr. Steve Allison, whom the trial court accepted as an expert in physical
therapy and functional capacity evaluations. Dr. Allison performed a
“functional capacity evaluation” on the plaintiff. He determined that the
plaintiff suffered a permanent loss of function as a result of the wreck. He
further testified that the plaintiff has significant permanent physical safety
limitations as a result of the wreck.5 Dr. Allison testified that, while the
plaintiff may be physically capable of going beyond those limitations, it is
unsafe for him to do so.
Regarding his change of lifestyle, the plaintiff testified that, before the
wreck, he engaged in the following activities: (1) deer hunting with a bow
and arrow (during the season); (2) golfing every other weekend; (3)
fitness/working out; (4) competing in triathlons; (5) fishing as often as
possible; (6) “two-stepping” with his wife; (7) activities with his stepson,
Kason. He testified that, post-accident, he cannot: golf, compete in
triathlons, fish as frequently, two-step with his wife, deer hunt with a bow
and arrow, or do the same activities with his stepson, Kason. Specifically,
the plaintiff testified that he could not draw the bowstring to shoot a deer
5 Those limitations are as follows: do not exceed 50 pounds on lifting from floor to waist or on carrying, pushing, or pulling; do not exceed 40 pounds on lifting from waist to shoulder or shoulder to overhead; do not crawl ever.
17 because it requires 65 pounds of pressure. He testified that he cannot golf at
all or compete in triathlons at all. He further testified that he has not been
“two stepping” with his wife since the accident, and that he has difficulty
sitting in the boat when fishing.
The jury apparently determined that the plaintiff’s testimony lacked
credibility. In light of the impeachment regarding throwing Kason in the air
and his untruthful denial of the pre-existing conditions to Dr. Smith, the jury
did not abuse its discretion in making that determination. The plaintiff’s
testimony was the only evidence he offered to prove how the accident
detrimentally changed his lifestyle. Dr. Allison’s testimony, accepted as true,
did not establish the leisure activities that the plaintiff enjoyed prior to the
accident. Likewise, Dr. Allison did not testify he could not safely shoot a
deer with the bow and arrow because Dr. Allison did not testify regarding
the amount of force necessary to draw the bowstring.6 Similarly, Dr. Allison
did not testify that the plaintiff could not safely sit in a boat, run in a
triathlon, dance with his wife, or play golf. Accordingly, the only evidence
that the plaintiff offered regarding his loss of enjoyment of life was his own
testimony, which the jury rejected as lacking credibility. Therefore, the
jury’s refusal to award damages for loss of enjoyment of life was not an
abuse of discretion. This assignment of error lacks merit.
CONCLUSION
The judgment of the trial court is AFFIRMED. The plaintiff is taxed
with all costs of this appeal.
6 Dr. Allison did, however, mention that the plaintiff dragging a deer on the ground could exceed the 50-pound limitation on pulling if the force necessary to drag the deer was greater than that amount. Regardless, had the plaintiff testified that his pre-accident deer hunting included using more than 50 pounds of force to drag a deer on the ground, the jury would have been within its discretion to reject that testimony. 18