Dupuy v. Fitzpatrick

789 So. 2d 667, 2001 La. App. LEXIS 1591, 2001 WL 670043
CourtLouisiana Court of Appeal
DecidedMay 23, 2001
DocketNo. 2000-CA-1353
StatusPublished
Cited by2 cases

This text of 789 So. 2d 667 (Dupuy v. Fitzpatrick) 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
Dupuy v. Fitzpatrick, 789 So. 2d 667, 2001 La. App. LEXIS 1591, 2001 WL 670043 (La. Ct. App. 2001).

Opinion

GORBATY, Judge.

Jennifer Dupuy appeals a judgment in her favor on the basis that the award of $66,834 was insufficient to compensate for her damages. Defendants/appellees are Vaughan 0. Fitzpatrick and United Services Automobile Association (USAA). For the following reasons, we amend the award of general damages, and affirm as amended.

FACTS AND PROCEDURAL HISTORY:

On March 28, 1997, Jennifer Dupuy was a passenger in a vehicle being driven by her boyfriend. As the couple proceeded down Metairie Road in the left lane, another vehicle, being driven by Vaughan O. Fitzpatrick and insured by USAA, crossed their path from the right lane, and either stopped or slowed, causing the vehicle in which Jennifer was traveling to strike it from the rear. Jennifer testified that she struck her head on the windshield, and experienced immediate pain in her neck. She was transported to East Jefferson Hospital, where she complained of pain to the left side of her neck and shoulder. The emergency broom doctor diagnosed an acute cervical strain, prescribed pain medication and instructed her to see her private physician.

Ms. Dupuy testified that she saw Dr. Stewart Altman a few days after the accident. He referred her to physical therapy, which she claimed offered her no relief.1

On April 7, 1997, she saw Dr. Bernard Manale for the first time. Dr. Manale testified that Ms. Dupuy presented with pain in her neck, arms, mid and low back, and shoulder blades. She did not report any radiation of pain down her legs, nor any tingling, weakness or numbness of her limbs. The physical examination revealed a normal range of motion in her neck and back. She experienced spasm in her neck when leaning back. He diagnosed a cervical and lumbar sprain, and recommended physical therapy and anti-inflammatory medication.

[669]*669In October of 1997, an MRI revealed that Ms. Dupuy had a two to three millimeter posterior bulge at C 5-6. There was no evidence that the bulge was pressing on her spinal cord, or that there was nerve root impingement.

Ms. Dupuy became pregnant in April of 1998, and Dr. Manale discontinued all medications. During the pregnancy, she complained of weakness in her limbs. Dr. Manale testified that he could find no medical explanation for this complaint. After the baby was born in November of 1998, Ms. Dupuy continued to complain of neck pain. Dr. Manale testified that his physical examination revealed a normal 13range of motion in her neck and back, with no spasms. However, because of her continued complaints of pain, he again prescribed Vieodin and Soma.

Dr. Manale next saw Ms. Dupuy in March of 1999, and she again complained of weakness in her arms, particularly when lifting or carrying. He referred her to a neurologist, who performed an EMG and nerve conduction study. All results were normal. Because she continued to complain of weakness in her limbs, in June of 1999, Dr. Manale decided to place Ms. Dupuy on cortisone treatment.

One month prior to trial, Ms. Dupuy again underwent an MRI. It revealed no changes since the first MRI performed approximately seven months after the accident.

Dr. Manale testified that after 2% years of conservative treatment, his prognosis was that Ms. Dupuy would have good and bad days. He opined that the injury would speed up the aging process of her spine, and, conceivably, that Ms. Dupuy could begin to experience arthritis and bone spurs within the next ten years. When asked if the bulging cervical disc could be causing the alleged weakness in her limbs, Dr. Manale testified that he did not believe the bulge caused these symptoms because the disc was not pressing on her spine or nerve roots. He admitted that the only objective finding to explain Ms. Dupuy’s continued pain was the mid-line bulge at C 5-6.

Dr. Manale suggested to Ms. Dupuy that she consider having a discogram performed, a procedure in which needles are inserted into the discs and a chemical | ¿is injected. The patient, who is awake during the procedure, tells the doctor whether or not she feels severe pain. Dr. Manale testified that, based on Ms. Dupuy’s complaints, she would have a positive disco-gram at C 5-6. He also explained that thé discogram would indicate to a surgeon where a cervical fusion should be done.

Dr. Manale testified that a cervical fusion would cost approximately $20 to $30 thousand, and that Ms. Dupuy would require approximately three months to heal before returning to work as a waitress. He assigned a seven percent total body disability rating, regardless of whether or not she underwent surgery.

Following a jury trial, Ms. Dupuy was awarded $66,834.00. The jury verdict was made the judgment of the court. The record does not contain the judgment, jury interrogatories or a jury verdict form; however, Ms. Dupuy has attached a copy of the judgment and the verdict form to her brief. The form indicates that $30,000 of the award was for general damages, encompassing pain and suffering, disability, and past and future loss of enjoyment of life. An additional $36,834 was awarded for special damages including past and future medical expenses, lost income, and diminished earning capacity. There is no line item breakdown of each element of damage.

Ms. Dupuy filed a motion for new trial and for JNOV, which were denied by the [670]*670trial court following a hearing. This appeal followed.

DISCUSSION:

A. General damages:

In her first assignment of error, Ms. Dupuy claims that the jury erred by awarding an insufficient general damage award. Relying upon other appellate decisions involving similar injuries, she contends that the evidence of her pain and suffering, disability rating, and loss of enjoyment of life, particularly considering her age at the time of the accident, necessitate an increase in the general damage award.

The Supreme Court has delineated an appellate court’s function when a general damage award is challenged on appeal:

[T]he role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Each case is different, and the adequacy or inadequacy of the award should be determined by the facts or circumstances particular to the case under consideration.
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The initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact. Only after such a determination of an abuse of discretion is a resort to prior awards appropriate and then for the purpose of determining the highest or lowest point which is reasonably within that discretion.

Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994) (citations omitted) (emphasis added). In determining whether an abuse of discretion has been shown, the relevant | (¡evidence must be viewed in the light that offers the most support to the trial court’s judgment. Id. at 1261.

Applying these standards, we find that the trial court abused its discretion in awarding only $30,000 in general damages for Ms. Dupuy’s injuries. Dr.

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Bluebook (online)
789 So. 2d 667, 2001 La. App. LEXIS 1591, 2001 WL 670043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dupuy-v-fitzpatrick-lactapp-2001.