Broussard v. Fredericks

889 So. 2d 483, 4 La.App. 3 Cir. 1064, 2004 La. App. LEXIS 2998, 2004 WL 2827585
CourtLouisiana Court of Appeal
DecidedDecember 8, 2004
DocketNo. 04-1064
StatusPublished
Cited by1 cases

This text of 889 So. 2d 483 (Broussard v. Fredericks) 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
Broussard v. Fredericks, 889 So. 2d 483, 4 La.App. 3 Cir. 1064, 2004 La. App. LEXIS 2998, 2004 WL 2827585 (La. Ct. App. 2004).

Opinion

hWOODARD, Judge.

Ms. Brandi Broussard appeals a jury verdict, awarding her only $1,000.00 for past medical expenses for injuries she received in an automobile accident and $500.00 for past medical expenses for her minor son, Devon Sam. We amend the judgment to Devon to reflect a total of $667.00 for his past medical expenses.

* * * *

This case arises from an automobile accident between Ms. Frederick and Sister Agnes McDewitt. Both claim that she had a green light; thus, each proceeded into the intersection where they collided. Michelle had two passengers in her car, Brandi Broussard and her two-year-old son, Devon Sam. Brandi filed suit against Michelle and her insurer and Sister Agnes and her insurer, including a claim on Devon’s behalf. A jury found that Michelle was totally at fault for the accident and awarded Brandi $1,000.00 for past medical expenses and Devon $500.00 for past medical expenses.

Brandi does not appeal the jury’s fault allocation. She appeals, only, its damage awards to her and Devon.

* * * * *

STANDARD OF REVIEW

The jury has great, even vast, discretion in awarding general damages.1 “Although prior rulings of this court have held that it is legal error to award special damages without awarding general damages, in Wainwright v. Fontenot, the Supreme Court held that it would be inconsistent with the great deference afforded the factfinder to state that, as a matter of law, such a verdict must always be erroneous.” 2 Further, the supreme court found that what appeared to be a blanket rule in some |;¡lower courts was, in actuality, an abuse of discretion review.3 Specifically, the supreme court found that, even though the lower courts purported to find legal error per se in a verdict that awarded medical expenses without awarding any general damages, in substance, those courts were actually basing their rulings on the fact that the jury’s verdict was inconsistent.4 The court noted, however, that such a verdict did not automatically reflect any inconsistency. It explicitly sanctioned this circuit’s affirmation of awards of special damages without an [485]*485award of general damages.5 Subsequently, in Sallinger v. Robichaux,6 the supreme court reaffirmed that “a Court of Appeal faced with such a verdict must review the jury’s factual findings as to damages under the normal manifest error standard.”

A review of Wainwright and the specific cases the supreme court discussed in its analysis reveals that an award of special damages, absent any award of general damages, may not constitute an abuse of discretion when there is a question concerning whether the defendant’s fault caused any actual injuries. Where the defendant’s actions caused a plaintiff to be concerned about his or her health and resulted in the plaintiff seeking an assessment or evaluation, we have found that the plaintiff should be compensated for such an assessment even if, ultimately, it leads to a finding that the plaintiff has suffered no injury.7 In such cases, an award of medical expenses without an accompanying award of general damages does not constitute manifest error.8

Devon Sam’s Damages

The jury awarded $500.00 for Devon’s past medical expenses. His mother testified:

[SQ. Your son, Devin [sic] Sam, he had a little contusion underneath his cheek?
A. Abrasion, yes.
Q. A bruise?
A. Yes.
Q. And that was it.
A. Yes, sir.
Q. The didn’t give him any medicine, correct?
A. Correct.
Q. They didn’t take any x-rays?
A. I don’t think so.
Q. And he’s never gone back to a doctor as a result of anything from this motor vehicle accident. Is that correct?
A. I don’t believe so.

Accordingly, we cannot say that awarding, only, past medical expenses to Devon constitutes an abuse of discretion. However, Devon’s expenses for medical treatment the day of the accident total $667.00. Namely, $485.00 for the ambulance and $182.00 for the hospital examination. Thus, we do find that the jury arbitrarily assessed past medical expenses at $500.00 and amend its judgment to reflect the entire amount which he is due.

However, we find no abuse of discretion in its failure to award damages for loss of consortium.

Brandi Broussard’s Damages

Brandi testified that her problems at the scene were “[m]y head and my neck and a little bit of my back.” She and Devon went by ambulance to Iberia General, which examined and released both her and her son. She testified that the pain in her back increased the following day. Ms. Frederick verified that Brandi indicated that her head and neck were hurting after the accident.

|4She sought further treatment on May 20, 2002, a little over a month after the accident, from Dr. Robert D. Franklin, a physician in the field of physical medicine and rehabilitation. He diagnosed her with a cervical lumbar strain or soft tissue type [486]*486injury in the neck and low back. He did find objective symptoms at that time; namely, a stiff back.

Dr. Franklin treated Brandi on four occasions. In October 2002, he ordered an MRI which revealed a bulging disc and herniation, though it did not appear to be significant on impinging nerve roots or the exiting nerves. He referred her to Dr. John Cobb, an orthopedic surgeon, who saw her on one occasion. Dr. Cobb recommended injections and possibly surgery, depending on the injections’ effectiveness.

The jury awarded Brandi $1,000.00 in past medical expenses and no general damages. Obviously, it found that the accident did not cause the bulge and herniation. The record reasonably supports this finding.

The Louisiana Supreme Court articulated the burden of proof in establishing the source of an injury, as follows:

In a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injury sustained and the accident which caused the injury. Plaintiff must prove causation by a preponderance of the evidence. The test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident.9

The car accident occurred in April 2002 and a lumbar MRI, taken on October 24, 2002, revealed these conditions. Additionally, given Dr. Franklin’s testimony that a person can have a herniated disc without having any problems, the jury could have disbelieved Brandi’s testimony regarding her subjective pain complaints.

The Defendants presented a plethora of evidence to diminish Brandi’s credibility and, also, pointed out her failure to mitigate any alleged damages by neglecting to follow the course of treatment Dr. Franklin prescribed.

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Related

Ronsonette v. St. Bernard Parish Government ex rel. Taffaro
165 So. 3d 209 (Louisiana Court of Appeal, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
889 So. 2d 483, 4 La.App. 3 Cir. 1064, 2004 La. App. LEXIS 2998, 2004 WL 2827585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broussard-v-fredericks-lactapp-2004.