Dawn Bourque, Individually v. Allstate Insurance Company

• Court: Louisiana Court of Appeal
• Decided: October 9, 2013
• Docket: CA-0013-0215
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

13-215

DAWN BOURQUE, INDIVIDUALLY, ET AL.

VERSUS

ALLSTATE INSURANCE COMPANY, ET AL.

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF VERMILION, NO. 93051 HONORABLE KRISTIAN EARLES, DISTRICT JUDGE

ELIZABETH A. PICKETT JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.

Thibodeaux, Chief Judge, concurs in part and dissents in part and assigns written reasons.

AMENDED AND AFFIRMED AS AMENDED.

Clѐ Simon Attorney at Law P. O. Box 52242 Lafayette, LA 70505 (337) 232-2000 COUNSEL FOR PLAINTIFFS/APPELLANTS: Dawn Bourque Spencer Comeaux Philip S. Aucoin, Jr. Law Offices of Harold G. Toscano 400 E. Kaliste Saloom Road, Suite 8300 Lafayette, LA 70508 (337) 291-1743 COUNSEL FOR DEFENDANTS/APPELLEES: Allstate Insurance Company Michael Gaspard

2 PICKETT, Judge.

The plaintiffs appeal the general damages and expert witness fees the trial

court awarded them in conjunction with injuries they sustained when their vehicle

was hit by the defendant’s truck. They also contend the trial court erred in failing

to award them future medical expenses. For the following reasons, we amend to

increase the amount of expert witness fees awarded to the plaintiffs and affirm the

other awards made by the trial court.

FACTS

The parties stipulated to the following facts. On October 30, 2009, Michael

Gaspard and Dawn Bourque were in the parking lot of Sammy’s Grocery Store on

Highway 167 in Vermilion Parish when Mr. Gaspard’s truck collided with

Ms. Bourque’s vehicle as he was backing from a parking space. Ms. Bourque filed

suit individually and behalf of her son, Spencer, 1 who was a passenger in her

vehicle. Mr. Gaspard and his insurer, Allstate Insurance Company (Allstate),

admitted that the collision was solely Mr. Gaspard’s fault and that the only issue

before the court was the amount of damages due Ms. Bourque and Spencer.

The collision occurred when Mr. Gaspard was backing his Ford F-350 truck

from a parking space in front of the store and the truck struck Ms. Bourque’s 2000

Lincoln LS as she waited to exit the parking lot. Mr. Gaspard testified that the

right rear of his vehicle “scrape[d]” the right rear area of Ms. Bourque’s vehicle in

the area of the right rear tire and the section above the tire, explaining that he

observed brush marks and scuffing on the right rear tire. Mr. Gaspard further

1 Spencer was a minor when the collision occurred, and his mother filed suit on his behalf. Though no pleadings were filed to establish Spencer attained the age of eighteen during the course of the litigation, Spencer testified that he was sixteen when the collision occurred and nineteen when he testified at trial. Accordingly, the judgment awarded damages to Spencer individually, and he appealed on his own behalf. testified that after he began backing his truck, it stopped. Thinking he had “not

given [his truck] enough gas,” he accelerated, then felt a jolt, at which time his

truck came to a stop. Mr. Gaspard estimated that his truck moved four to five

inches when he accelerated and testified that his truck moved eight to ten feet from

start to finish. Ms. Bourque testified that her vehicle was “picked up, sat down,

and pushed” three to five feet.

After the accident, Ms. Bourque became achy and sore and began

experiencing headaches. Shortly thereafter, she began experiencing pain in her

neck and lower back, as well as pain that radiated into her left leg; she continued to

suffer headaches. Approximately one week after the accident, Ms. Bourque went

to Dr. Donald Pavy. On November 18, 2009, she sought treatment from Dr. David

Barczyk, a chiropractor in Lafayette. Initially, she was treated by Dr. Barczyk

until May 10, 2010, when she was discharged from his care. Ms. Bourque did not

see Dr. Barczyk in April 2010. When he released her in May, Dr. Bourque noted

that she had a full range of motion in her neck and back and was pain free.

During his treatment, Dr. Barczyk ordered an MRI of Ms. Bourque’s back

which showed minimal bulging with mild foraminal narrowing at L4-5 and tiny

bilateral foraminal tears or fissures. This MRI confirmed the findings of lumbar

X-rays taken on November 11, 2009, which were interpreted as showing

degenerative changes. Dr. Barczyk diagnosed Ms. Bourque’s injuries as sciatic

neuritis/sciatica, muscle spasm, and lumbar sprain/strain which he related to the

collision.

Ms. Bourque returned to Dr. Barczyk in August 2010, complaining of back

pain. She sought further treatment with Dr. Barczyk on September 2, 9, and 14,

2010. Ms. Bourque testified that she continued to suffer pain as a result of her

2 injuries after her September 14, 2010 visit but did not seek further treatment

because she could not afford to travel to his office or pay his charges. She further

testified that she continued to experience pain at the time of the trial, explaining

she has pain when sits a long time, which is a nine on the pain scale at times.

Ms. Bourque related that pain limited her activities and caused her to be

depressed, grouchy, and agitated. She also testified that the accident was

emotionally disabling and physically limiting for her, explaining that the pain she

experienced after the collision contributed to her separating from her husband

when he lost his job. Ms. Bourque explained that she was hard to live with when

she was in pain and that she frequently argued with her husband, especially after he

was unemployed, which led to their separation.

When cross examined, Ms. Bourque testified that she had injured her neck in

2005 in an automobile accident. She also testified that she had a history of fibroid

tumors but denied the tumors caused back pain, explaining that the pain she

experienced with fibroid tumors was centralized in her abdomen area.

Spencer testified that after the collision he suffered headaches in the back of

his head and experienced pain in his chest, neck, mid and low back, and left knee

which hit the dashboard in the car. He rated his pain as a seven to eight on a scale

of ten, explaining that his neck pain was not as bad as his low back pain. Spencer

testified that the pain prevented him from playing football and participating in P.E.

He also testified that he had trouble carrying his book sack and moving from

classroom to classroom during school.

Initially, Spencer sought treatment with Dr. Pavy, then he began treating

with Dr. Barczyk. Dr. Barczyk diagnosed him as having cervical strain/sprain,

spasm, headaches related to neck pain, and a chest wall sprain/strain. Spencer saw

3 Dr. Barczyk regularly in November and December 2009. His treatment began

tapering off in 2010. He saw Dr. Barczyk three times in January and March and

two times in February and May. His last treatment with Dr. Barczyk was May 10,

2010.

After the trial concluded, the trial court awarded Ms. Bourque $8,500 in

general damages and Spencer $3,500 in general damages and $300 in expert

witness fees for Dr. Barczyk testifying at trial. Ms. Bourque and Spencer appealed

the trial court’s judgment and assign three errors with the trial court’s awards.

ASSIGNMENTS OF ERROR

1. The trial court committed reversible error and abused its discretion in disregarding the uncontradicted medical testimony on the nature and extent of the injuries sustained, necessitating a de novo review.

2. The award of general damages and failure to award future medical expenses instances an abuse of discretion, necessitating a de novo review and increase in the general damages.

3. The award of expert fees of only $100.00 per hour to Dr. David Barczyk was an abuse of discretion necessitating an increase in expert fees awarded to Dr. Barczyk.

DISCUSSION

Expert Witness Testimony

Ms. Bourque and Spencer contend the trial court committed error because it

did not accept Dr. Barczyk’s opinions regarding the movement of their bodies

when Mr. Gaspard’s truck collided with their car and the extent of their injuries.

They claim Dr. Barczyk’s opinions were uncontradicted, and the trial court’s

failure to accept his opinions constitutes error that necessitates a de novo review.

When considering expert testimony, a trial court may accept or reject some

or all of the opinion expressed by an expert and may even substitute its own

common sense and judgment for that of the expert, where, in its opinion, the

4 evidence establishes that the substitution is warranted by the evidence as a whole.

Ryan v. Zurich Am. Ins. Co., 07-2312 (La. 7/1/08), 988 So.2d 214. Moreover, the

weight given to a treating physician’s testimony depends not only his qualifications

but on the facts which serve as the basis of his opinion. Vidrine v. Teche Elec.

Supply, L.L.C., 08-1287 (La.App. 3 Cir. 4/1/09), 6 So.3d 1012, writ denied, 09-964

(La. 6/19/09), 10 So.3d 739. Logically, a plaintiff’s lack of credibility on factual

issues can diminish the veracity of his or her complaints to a physician. Harrell v.

Brookshire Grocery Co., 11-108 (La.App. 3 Cir. 9/7/11), 73 So.3d 416, writ

denied, 11-2557 (La. 2/3/12), 79 So.3d 1029.

During Dr. Barczyk’s testimony, the trial court specifically stated that it was

familiar with the nature and substance of Dr. Barczyk’s testimony regarding the

effect a collision like the one here can have on the passengers of the impacted

vehicle and the injuries such an impact can cause the passengers. Dr. Barczyk’s

testimony shows he accepted the plaintiffs’ descriptions of the impact

Mr. Gaspard’s truck had on Ms. Bourque’s vehicle. Mr. Gaspard’s testimony

regarding the collision clearly contradicted that testimony. The trial court

apparently found Mr. Gaspard’s testimony on this issue more credible than the

plaintiffs’ testimony and discredited Dr. Barczyk’s testimony to the extent that it

was based on Ms. Bourque’s and Spencer’s testimony of the collision. This

finding is reasonable based on the evidence; therefore, we find no abuse with the

trial court’s decision not to accept Dr. Barczyk’s opinions in toto.

General Damages and Future Medical Expenses

Appellate courts review trial court damage awards simply to determine

whether the trial court abused its discretion in making the awards. Prest v.

Louisiana Citizens Prop. Ins. Corp., 12-513 (La. 12/4/12), So.3d . This is

5 because as the trier of fact the trial court “is in the best position to evaluate witness

credibility and see the evidence firsthand.” Bouquet v. Wal-Mart Stores, Inc., 08-

309, p. 4 (La. 4/4/08), 979 So.2d 456, 459. Thus, damage awards are

determinations of fact and must be given great deference when reviewed.

Wainwright v. Fontenot, 00-492 (La. 10/17/00), 774 So.2d 70. Accordingly, when

reviewing general damages, appellate courts review the trier of fact’s exercise of

discretion, not decide what is an appropriate damage award. Youn v. Maritime

Overseas Corp., 623 So.2d 1257 (La.1993). Only after an appellate court has

determined that the trier of fact abused its discretion can it disturb a damage award,

“and then only to the extent of lowering it (or raising it) to the highest (or lowest)

point which is reasonably within the discretion afforded that court.” Coco v.

Winston Indus., Inc., 341 So.2d 332, 335 (La.1977).

In evaluating the evidence, the trier of fact should accept as true the

uncontradicted testimony of a witness, even when the witness is a party, if the

record indicates no sound reason for its rejection. Marange v. Custom Metal

Fabricators, Inc., 11-2678 (La. 7/2/12), 93 So.3d 1253. Another witness’s

testimony that casts suspicion or doubt on the reliability of such testimony

provides a sound reason for rejecting or discounting the testimony. Id.

The trial court observed the parties and Dr. Barczyk as they testified.

Mr. Gaspard’s testimony contradicted Ms. Bourque’s and Spencer’s descriptions of

the collision which may have cast doubt on the effect it had on their vehicle, their

persons, and the extent of their injuries. In turn, the trial court may have

considered Dr. Barczyk’s testimony in light of Ms. Bourque’s and Spencer’s

testimonies and his own familiarity with this type of collision and the effect such

collision has on a vehicle’s occupants. Additional factors the trial court may have

6 considered were: 1) the pictures of the damage to Ms. Bourque’s vehicle; 2) the

repair estimate for her vehicle; 3) Ms. Bourque’s previous automobile accident;

and 4) whether her pre-existing problems with fibroid tumors could have caused

some of, or contributed to, her back pain. Considering these facts, we find no error

with the trial court’s award of general damages.

Ms. Bourque and Spencer also assign error with the trial court’s failure to

award them future medical expenses. As with the trial court’s general damage

awards, we cannot say the trial court’s failure to award future medical expenses

was unreasonable considering the evidence regarding the impact of Ms. Gaspard’s

truck on Ms. Bourque’s car and the effect of that impact on Ms. Bourque and

Spencer, as well as the medical evidence. Accordingly, we find no error with the

trial court’s failure to award future medical expenses.

Expert Witness Fees

In their last assignment of error, Ms. Bourque and Spencer urge that the trial

court erred in awarding only $300 for Dr. Barczyk’s expert witness fee. They

contend the award should have been much greater because Dr. Barczyk charges

$750 per hour to testify as an expert and he traveled from Lafayette to Crowley for

trial.

Expert witnesses are entitled to be compensated for their services in an

amount to be determined by the court. La.R.S. 13:3666. Trial courts have much

discretion when awarding expert witness fees, and such awards cannot be

overturned unless shown to be an abuse of discretion. State ex rel. J.Y.M., 09-1333

(La.App. 3 Cir. 8/4/10), 45 So.3d 1133.

A court can consider the following factors when assessing an expert witness

fee: (1) the amount of time spent preparing for trial; (2) the time actually spent in

7 court; (3) the extent and nature of the work performed; (4) the knowledge,

attainments, and skill of the expert; (5) similar expert awards; (6) the complexity of

the problem addressed by the court; and (7) the helpfulness of the expert’s report

and testimony to the trial court. Massie v. Deloach, 04-1425 (La.App. 3 Cir.

3/2/05), 896 So.2d 1246, writ denied, 05-786 (La. 5/6/05), 901 So.2d 1107.

According to the trial court’s award of the expert witness fee, Dr. Barczyk

appeared at trial for three hours. There is no evidence regarding the time

Dr. Barczyk spent preparing for trial or time traveling from Lafayette to trial in

Crowley. Dr. Barczyk’s credentials on the nature of the plaintiffs’ injuries are

extensive; however, neither their injuries nor their treatment was complex. The

trial court noted that it knew and understood the concepts provided in

Dr. Barczyk’s extensive testimony. Thus, portions of Dr. Barczyk’s testimony did

not assist the trial court because those portions outlined information already known

to the trial court. Moreover, the fee an expert charges his patient or client to

appear in court is not a factor to be considered in awarding the expert a fee. Id.

In light of the time Dr. Barczyk spent in attendance at the trial and traveling

to and from the trial from his office which is located in Lafayette, 2 we find the trial

court abused its discretion in awarding the plaintiffs only $300 in expert witness

fees and increase the award to $1,250.00.

DISPOSITION

For these reasons, the judgment of the trial court is amended to increase the

award of expert witness fees to $1,250; the judgment is affirmed in all other

respects. Costs of this appeal are split equally between the plaintiffs, Dawn

2 Though there is no direct evidence in the record of the time Dr. Barczyk spent traveling to and from his office to the trial, this court is aware of the distance and of the approximate time it would have taken to him make those trips.

8 Bourque and Spencer Comeaux, and the defendants, Michael Gaspard and Allstate

Insurance Company.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. RULES 2-16.3, UNIFORM RULES—COURTS OF APPEAL.