STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
05-85
ELRIDGE MENARD AND PAULINE MENARD
VERSUS
FEDERATED MUTUAL INSURANCE CO., ET AL.
********** APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 02-65001 HONORABLE JAN MARIE TURK, DISTRICT JUDGE
********** ULYSSES GENE THIBODEAUX CHIEF JUDGE **********
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and J. David Painter, Judges.
REVERSED AND RENDERED.
Barney R. Aucoin P. O. Box 2342 Lafayette, LA 70502-2342 Telephone: (337) 237-3971 COUNSEL FOR: Intervenor Appellee - Louisiana Farm Bureau Casualty Ins. Co.
Steven Claude Judice Keogh, Cox & Wilson, Ltd. P. O. Box 1151 Baton Rouge, LA 70821 Telephone: (225) 383-3796 COUNSEL FOR: Defendants/Appellees - Federated Mutual Insurance Co. and Joseph Curtis Aguillard
Donald Dale Landry Gerald DeLaunay Perrin, Landry, DeLaunay, Dartez & Ouellet P. O. Box 53597 Lafayette, LA 70505 Telephone: (337) 233-5832 COUNSEL FOR: Plaintiffs/Appellants - Elridge Menard and Pauline Menard THIBODEAUX, Chief Judge.
In this car accident case, Elridge and Pauline Menard appeal an adverse
judgment pursuant to a jury verdict apportioning fault equally between Mr. Menard
and the driver of the following vehicle who hit their car. They also appeal the jury’s
decision not to award any damages. Because we find that the tortfeasor, Joseph
Aguillard, did not overcome the statutory presumption that the driver of the following
vehicle is liable for such a collision, we hold him completely responsible for the
accident. Additionally, Mr. and Mrs. Menard produced sufficient evidence showing
that although the accident did not cause any new injuries, it aggravated pre-existing
injuries. A tortfeasor is responsible for injuries caused by his negligence, even if the
extent of the injury is an aggravation of a pre-existing injury or condition. Thus, the
Menards are entitled to an award of damages and their past medical expenses. We
award $50,000.00 in general damages and $42,476.95 in past medical expenses to Mr.
Menard and $40,000.00 in general damages and $42,061.06 in past medical expenses
to Mrs. Menard. We decline to award future medical expenses as these were too
speculative in nature and because the accident aggravated pre-existing injuries and
did not cause new injuries.
I.
ISSUE
We must determine whether the jury erred when it apportioned fault for
the car accident equally to both Mr. Menard and Mr. Aguillard. We must also
consider whether the jury abused its discretion when it declined to award any
damages at all for aggravation of the Menards’ pre-existing injuries.
1 II.
FACTS
On April 17, 2001, Elridge Menard drove his wife, Pauline Menard, to
the gym. As he waited to make a left turn into the parking lot, he was rear-ended by
a van driven by Joseph Aguillard. Mr. Menard later testified that he waited about
seven minutes before leaving the car after the accident. Mr. Aguillard, however,
testified that Mr. Menard got out of his car right away and began taking photographs
of the damage. Mr. Menard also stated that he immediately felt dizzy after the
accident. He was taken to the hospital by ambulance. The EMT who attended to Mr.
Menard testified that the hospital instructed him to start an IV because Mr. Menard’s
blood pressure was elevated.
A jury found that negligence on the part of both Mr. Menard and Mr.
Aguillard caused the accident, and thus apportioned fifty percent fault to each. The
jury also found that neither Mr. nor Mrs. Menard sustained any damages in the
accident. The Menards now appeal the jury’s verdict, arguing that Mr. Aguillard
should be responsible for one hundred percent of the fault, and also that they are
entitled to damages for their pain and injuries resulting from the accident.
III.
LAW AND DISCUSSION
Liability of Mr. Menard and Mr. Aguillard
Mr. Menard testified that both his turn signal and brake lights were
working. He said he was stopped for approximately three to four minutes while
waiting to make the left turn into the gym parking lot. In his deposition of July 2002,
however, he stated he had been waiting for only twenty-five to thirty seconds before
2 impact. When confronted with this contradiction at trial, Mr. Menard stated that both
estimations were only approximate times, but he reiterated that he was at a full stop.
Mr. Aguillard testified that, as he was driving behind Mr. Menard, he
heard a rattling sound in his car and looked down to see what it was. He admitted he
looked away from the roadway for “a couple of seconds.” He admitted that before
he looked down, he saw brake lights on Mr. Menard’s car, but did not recall that Mr.
Menard’s turn signal was on. He could not say whether, upon looking back at the
road, Mr. Menard’s turn signal was on, nor could he say whether the car was at a
complete stop, although he again acknowledged seeing brake lights.
Officer Kirkwood, who arrived at the accident scene, testified that the
weather was clear that day. According to his report, Mr. Aguillard told Officer
Kirkwood that Mr. Menard’s car had come to a sudden stop, so that it was too late to
avoid impact once Mr. Aguillard looked back at the road. Mr. Aguillard also told
Officer Kirkwood that Mr. Menard’s car did not have a left turn signal on. Officer
Kirkwood inspected both cars, but he did not check to see if the signal lights or brake
lights were working on the Menard car. Although he did not issue any citations to
either Mr. Menard or Mr. Aguillard, Officer Kirkwood’s report concluded that the
primary cause of the accident was careless operation by Mr. Aguillard.
Louisiana Revised Statutes 32:81(A) requires that “[t]he driver of a
motor vehicle shall not follow another vehicle more closely than is reasonable and
prudent, having due regard for the speed of such vehicle and the traffic upon and the
condition of the highway.” Thus, a following motorist involved in a rear-end
collision is presumed to have breached this statutory duty. Mart v. Hill, 505 So.2d
1120 (La.1987). A following motorist may, however, rebut the presumption by
demonstrating that he or she had his car under control, closely observed the preceding
vehicle, and followed at a safe distance under the circumstances, or by proving that 3 the driver of the lead car negligently created a hazard which the following motorist
could not reasonably avoid. McCullin v. U.S. Agencies Cas. Ins. Co., 34,661
(La.App. 2 Cir. 5/9/01), 786 So.2d 269. The following motorist bears the burden of
showing he was not negligent. Wheelis v. CGU Ins., 35,230 (La.App. 2 Cir. 12/7/01),
803 So.2d 365.
The allocation of fault is a factual determination subject to the manifest
error rule. Spiller v. Ekberg, 00-130 (La.App. 5 Cir. 5/17/00), 762 So.2d 226. Where
there is conflicting testimony, reasonable evaluations of credibility and fact will not
be disturbed on review, even though the appellate court believes its own assessments
are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989). The appellate court
must determine not whether the factfinder was right or wrong, but whether its
conclusion was reasonable. Stobart v. State, through DOTD, 617 So.2d 880
(La.1993). When two equally rational views of the evidence exist, the factfinder’s
choice of one cannot be manifestly erroneous or clearly wrong. Id.
In this case, however, Mr. Aguillard admitted he turned his attention
away from the roadway, however briefly. He also admitted he saw at least Mr.
Menard’s brake lights before he looked away, although there was some dispute as to
whether the left turn signal was on. Furthermore, Mr. Menard had been waiting to
make the left turn for at least twenty-five to thirty seconds, by his more conservative
estimate, before the collision. There was no evidence of any obstructions in the
roadway, and the weather was clear. Although Officer Kirkwood did not inspect Mr.
Menard’s lights or turn signals, he did not issue citations to either Mr. Menard or Mr.
Aguillard. Officer Kirkwood concluded that Mr. Aguillard’s inattention caused the
accident. Mr. Aguillard failed in his burden to show he was not negligent and thereby
rebut the presumption of liability. Because he did not sufficiently refute the
4 presumption, it is unreasonable to consider him anything other than one hundred
percent liable for the accident.
Damages
Pauline Menard consulted five doctors over the course of her treatment
after the April 2001 accident. She first saw Dr. John Budden on April 23, after the
car accident, and again on May 18. She complained of severe neck and back pain.
She admitted she had back surgery four years earlier to treat a ruptured disc related
to a car accident, and that this injury had always caused her pain, but that after the
April 2001 accident, her pain was present continuously, and as severe as a nine on a
scale of ten. She also admitted she had been in an accident only a few months earlier,
in January 2001, and that that accident aggravated her back. However, Mrs. Menard
stated that she had been improving since the January 2001 accident, until the April
2001 accident. Dr. Budden did not assign a disability rating, nor did he discuss
limitations on activities. In his opinion, Mrs. Menard was not a candidate for surgery,
but he did prescribe pain medication and advised her to continue physical therapy.
Her physical exam was objectively normal, and showed normal range of motion and
no signs of muscle spasms, but her X-rays revealed degenerative changes in her
lumbar spine. While Dr. Budden believed the degenerative changes revealed in the
X-rays were present before the April 2001 accident, he concluded the accident
aggravated these pre-existing problems.
Dr. John Watermeier first saw Mrs. Menard on June 27, 2001. She
complained of moderate to severe lower back pain and also right knee pain. She
admitted her prior back surgery, saying it was related to an accident at work. She did
not, however, report prior car accidents. In January 2002, Dr. Watermeier performed
knee surgery on Mrs. Menard, and found moderate to severe deterioration of the knee.
5 He explained that while this defect is usually due to the normal aging process, trauma
to the knee can aggravate such a condition and cause defects. He concluded that the
defect in Mrs. Menard’s knee was a pre-existing condition aggravated by the April
2001 accident. Her knee stabilized and improved after surgery.
X-rays of Mrs. Menard’s back were taken in February 2002, and showed
some degenerative changes at the L4-L5 level of her back. Although he was not able
to compare the February 2002 X-rays with previous X-rays, Dr. Watermeier believed
the degenerative changes pre-dated the April 2001 accident. He concluded, however,
that the April 2001 accident had aggravated this prior condition. Dr. Watermeier also
compared an MRI of Mrs. Menard’s lumbar spine from September of 2001 with MRIs
of the same area from May 1998 and March 1997. He noted that while the September
2001 MRI report indicates degeneration of her spine at several levels in her lower
back, both previous MRIs showed the same condition. He again concluded that the
April 2001 accident aggravated Mrs. Menard’s prior degenerative condition.
Although Dr. Watermeier suggested surgery to treat her lower back pain, he also
believed she was doing well with conservative treatment, which included injections
of a local pain reliever.
Dr. Joseph Gillespie first saw Mrs. Menard on November 19, 2003. She
complained of lower back pain, tenderness, and pain, numbness, and tingling in her
legs. She indicated a history of lower back problems and had had surgery at the L4-5
level. She did not specify other car accidents, but said she had once fallen and injured
herself at work. Dr. Gillespie examined her and observed a significant surgical scar
on her lower back. He noted that scar pain, particularly in people with subsequent
trauma such as a car accident, can result in lower back and leg pain. However,
injections to the scar did not improve her pain. Dr. Gillespie concluded she suffered
from post-surgical back pain and degenerative disc disease exacerbated by the April 6 2001 car accident. He believed, however, that she was functioning well, and that her
pain could be controlled with medications and certain epidural injections.
Dr. Bryan LeBean first saw Mrs. Menard in January 2003. Her chief
complaints were lower back pain and right knee pain. She told him she had had lower
back surgery in 1997, but did not tell him about any car accidents other than the April
2001 accident.
Dr. LeBean examined her and found that her back and her right knee
were both severely tender, and that she suffered from decreased range of motion in
her knee. She complained of lower back pain of an eight on a scale of ten and knee
pain of three on a scale of ten. He diagnosed Mrs. Menard as having prior lumbar
disc herniation aggravated by the April 2001 accident. Dr. LeBean specifically
related the aggravation to the accident, even though the original condition pre-dated
the accident.
Elridge Menard consulted five doctors in relation to his treatment for the
April 2001 accident. He admitted to Dr. Budden he had been previously injured in
car accidents in 1987, 1999, and January 2001. Although he told Dr. Budden his
neck had completely recovered from that accident, he was still experiencing lower
back pain from the January 2001 accident, which he described as having increased
in severity after the April 2001 accident. Dr. Budden’s objective findings during his
physical examination of Mr. Menard were relatively normal. He did note that some
of Mr. Menard’s extremities were slightly less responsive than normal, but that could
be attributable to Mr. Menard’s diabetes. X-rays taken on the date of the accident
were negative, and Dr. Budden did not order any MRIs or any further X-rays. Dr.
Budden concluded Mr. Menard had sustained cervical and lumbar strains. He did not
recommend surgery, but did prescribe some medication and physical therapy, which
appeared to decrease Mr. Menard’s back pain slightly. The physical therapy report 7 of May 22, 2001 noted that Mr. Menard appeared to be very functional and did not
show any significant signs of distress. Dr. Budden did not assign a disability rating.
When asked whether he believed Mr. Menard was malingering or
exaggerating his symptoms, Dr. Budden admitted that while his subjective complaints
were quite severe, his objective findings were absent. However, he noted that this
disparity between subjective complaints and objective findings was not unusual in
cases of lumbar strain. Finally, Dr. Budden noted that his focus in treating Mr.
Menard was his neck and back pain, and not his hypertension.
Mr. Menard’s main complaints to Dr. Watermeier were mild to moderate
lower back pain, mild neck pain, and pain in his left shoulder. He admitted to prior
accidents and injuries in 1997, 1999, and 2000, but did not disclose the January 2001
accident. Dr. Watermeier described his objective findings as relatively benign, noting
that Mr. Menard had some full range of motion in his lower back and shoulders, but
mild limitation and pain in his neck. His X-rays were normal. Dr. Watermeier
suspected Mr. Menard had suffered a herniated disc in his lower back as a result of
one of his prior accidents, and concluded that he had sustained an aggravation to a
pre-existing herniated disc and possibly a new injury based on his symptoms in his
lower back, neck, and left shoulder.
An MRI of Mr. Menard’s lumbar spine in August 2001 indicated a
herniated disc at L4-5 and bulging discs at L3-4 and L5-S1. An MRI of his cervical
spine in September 2001 showed a herniated disc at C6-7. Dr. Watermeier was able
to compare an MRI of the lumbar spine from February 2000 with the post-April 2001
MRIs, and found that the 2000 MRI report described findings very similar to the
subsequent MRI. He concluded that Mr. Menard sustained an aggravation to a pre-
existing condition to the lumbar spine, without any evidence of new injury. An MRI
of his left shoulder revealed a fracture, but Dr. Watermeier concluded this was an old, 8 chronic defect, present long before the April 2001 accident. He believed, however,
that there was an aggravation to this pre-existing condition in Mr. Menard’s left
shoulder.
Over the course of Mr. Menard’s next visits, from September 2001 to
November 2002, Dr. Watermeier recommended epidurals to relieve the pain from the
herniated disc in the lumbar spine and surgery to treat his neck pain. Mr. Menard
declined both procedures, opting instead for medication and periodic injections of
pain medication. He also declined surgery for his shoulder. The surgeries could cost
up to $50,000.00. Dr. Watermeier described the surgeries as elective, and noted that
the conservative treatment, while not curative, has been palliative. He did not place
any limitations or restrictions on Mr. Menard, as far as work or daily activities, nor
did he assign a disability rating to him.
Like Dr. Budden, Dr. Watermeier believed that although Mr. Menard’s
injuries were not themselves related to the April 2001 accident, that accident
aggravated his pre-existing conditions, specifically his lumbar disc herniation and his
shoulder. Dr. Watermeier also admitted to inconsistencies between his objective
findings and Mr. Menard’s subjective complaints, but noted this was not unusual, and
also stated it was possible to have a problem that did not manifest itself in a physical
exam.
Dr. Gillespie first saw Mr. Menard in November 2003. His chief
complaints were headache, neck, and back pain. Although he did not mention the
January 2001 accident, Mr. Menard did admit he had been involved in prior car
accidents, which had resulted in neck and back pain that remained occasional. Dr.
Gillespie performed a physical exam and found mild tenderness in Mr. Menard’s neck
and back, but otherwise Mr. Menard seemed normal and not in any significant
distress. Dr. Gillespie reviewed findings from the August 2001 MRI of Mr. Menard’s 9 lumbar spine, and found evidence of herniation and bulging at L4 and L5-S1. The
September 2001 MRI of the cervical spine revealed a herniation at C6-7, but Dr.
Gillespie concluded that these changes were not significant. The MRI of Mr.
Menard’s left shoulder showed some degenerative changes, but these indicated a
chronic, rather than a new, defect. Overall, Dr. Gillespie felt that Mr. Menard had
chronic, pre-existing problems with pain that were exacerbated by the April 2001
accident. He prescribed pain injections, but Mr. Menard chose not to receive them,
opting instead for medication. Dr. Gillespie also stated that the presence of
degenerative changes in Mr. Menard’s neck and back would preclude heavy duty
labor.
Dr. Gillespie also discussed Mr. Menard’s hypertension, noting that Mr.
Menard had some history of mild or borderline hypertension, and had taken
medication for this condition in the past. He noted that a variety of factors can
contribute to hypertension, including diabetes. Dr. Gillespie, however, did not
believe that a stressful event could produce chronic hypertension. Chronic pain,
however, could exacerbate hypertension. Dr. Gillespie also discussed Mr. Menard’s
erectile dysfunction (ED), noting that it was unlikely ED would result directly from
any of his injuries since it would require a fairly significant trauma to produce such
a result. He named hypertension, hypertensive medications, and diabetes as
alternative causes of ED. Dr. Gillespie admitted, however, that he would defer on
these matters to the opinion of a doctor who specialized in internal medicine, and
would have more expertise on conditions such as hypertension.
Finally, Dr. LeBean, who has treated Mr. Menard since 1999, testified.
Mr. Menard’s main complaints during their visit in May 2001 included neck pain,
shoulder pain, low back pain, and tension headaches. Dr. LeBean discovered severe
tenderness in his neck and lower back, and moderate tenderness and decreased range 10 of motion in his left shoulder. In addition, his blood pressure was elevated. Dr.
LeBean was aware that Mr. Menard had prior problems with his lower back and neck.
In fact, based on reports from other doctors, Dr. LeBean stated that Mr. Menard had
been diagnosed in 1997 with a bulging disc on L5-S1. Therefore, he had lumbar disc
herniation which pre-dated the April 2001 accident. However, Dr. LeBean agreed
that that accident aggravated his back problem, exacerbating symptoms of pain. Dr.
LeBean believed the shoulder pain was secondary to the cervical disc herniation. Dr.
LeBean was concerned there could be further damage, and advised Mr. Menard not
to return to work, with the exception of one period in which his condition improved
slightly. Mr. Menard’s symptoms of pain and Dr. LeBean’s treatment and impression
of cervical and lumbar strain remained consistent during all of his visits, through his
most recent visit in March 2004.
Dr. LeBean believed that, more probably than not, the treatment and
medications he administered to Mr. Menard were related to the April 2001 accident.
Even when specifically told of the January 2001 accident, Dr. LeBean still related Mr.
Menard’s complaints to the April 2001 accident, and did not consider the January
accident significant to his assessment of Mr. Menard. Additionally, Dr. LeBean
stated that although Mr. Menard had been diagnosed with lumbar herniation before
the accident, the April accident aggravated his pre-existing condition. Dr. LeBean
stated that an MRI of the cervical spine in February 2000 was completely negative,
so that a diagnosis of cervical disc herniation was a new event that occurred sometime
after that MRI.
Dr. LeBean stated that Mr. Menard would not improve further with only
conservative treatment, and would suffer from a chronic pain in his neck and
shoulder, and lower back. However, Dr. LeBean believed Mr. Menard’s preference
11 for more conservative treatment, opting for medication rather than surgery, was
reasonable given the risks and expense of surgery.
In contrast to Dr. Gillespie’s opinion, Dr. LeBean stated that Mr.
Menard’s hypertension was related to the April 2001 accident, stating that patients
sometimes can have that reaction. Dr. Gillespie prescribed blood pressure
medication, and stated that Mr. Menard’s ED may be a side effect of that medication.
In particular, Mr. Menard’s complaints regarding ED began after he started that
particular medication. Dr. Gillespie prescribed Viagra. In his deposition, Dr.
Gillespie stated he believed the necessity of prescribing Viagra was related to the
April 2001 accident, because the accident triggered Mr. Menard’s high blood pressure
condition, requiring medication which stabilized his high blood pressure, but induced
ED.
Dr. Budden was the only doctor who treated Mrs. Menard who was
aware of her accident during January 2001, and admitted her physical abnormalities
pre-dated the April 2001 accident, but nevertheless concluded they had been
aggravated during that event. Dr. Watermeier concluded that the April 2001 accident
was responsible for aggravating her knee condition to an extent that necessitated
surgery to diagnose and correct the condition. He also concluded that her back pain
was a result of degenerative defects present prior to the April 2001 accident, but was
aggravated by that event. Dr. Watermeier was not aware of her January 2001
accident, but he believed there was objective evidence to support her subjective
complaints of pain. Dr. Gillespie was not aware of other car accidents, specifically
of the January 2001 accident, and admitted he had no knowledge of whether epidurals
would be medically necessary before April 2001. He agreed, however, that the April
2001 accident exacerbated her back condition. Dr. LeBean specifically related her
back pain to the accident. None of the doctors changed their view that the April 2001 12 accident exacerbated Mrs. Menard’s back pain, requiring pain medication.
Additionally, it is clear that the accident aggravated Mrs. Menard’s pre-existing knee
condition to such an extent that it required surgery to treat.
None of the doctors who treated Mr. Menard thought he was
malingering. Drs. Budden and Watermeier stated that inconsistencies between
objective findings and subjective complaints were not dispositive of the true physical
state of the patient. All of the doctors agreed that Mr. Menard’s back and neck pain
were pre-existing conditions exacerbated by the April 2001 accident. Even Dr.
Budden, who was aware specifically of the January 2001 accident, reached this
conclusion. Although Dr. Gillespie did not believe a single incident, such as a car
accident, could push a borderline hypertensive patient into true high blood pressure,
he agreed to defer to the opinion of a doctor who specialized in such issues. Dr.
LeBean stated Mr. Menard’s hypertension was a result of the stress of the April 2001
accident. As a result of medication taken to treat his hypertension, Mr. Menard
developed ED.
Mrs. Menard stated that she was unable to do things she had once
enjoyed, such as going dancing with her husband. She also stated that her daughter
must do the housework, under her guidance. She has been dependent on pain
medication and has had difficulty sleeping. Mr. Menard noted that he was unable to
ride horses. He also has been unable to perform the full range of his duties as a
private investigator, and his income has suffered as a result. In addition to
unremitting pain from his physical condition, he has been forced to endure the effects
of ED.
In general, an appellate court must review an award of damages for an
abuse of discretion. The appellate court may only raise or lower the award to the
nearest reasonable amount. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1997). 13 However, the Coco standard does not apply when the jury has made no award at all.
Bonin v. Ferrellgas, Inc., 02-1031 (La.App. 3 Cir. 8/6/03), 855 So.2d 781. In such
a circumstance, “the appellate court should make a res nova determination of the
appropriate total amount of damages to be awarded to the plaintiff for the injuries
sustained.” Leal v. Dubois, 99-957, p. 10 (La.App. 3 Cir. 4/5/00), 756 So.2d 684,
691, citing Mart v. Hill, 505 So.2d 1120. Thus, because the jury made no
compensation for the injuries suffered by Mr. and Mrs. Menard as a result of the
accident, we are permitted to do so. A tortfeasor “is responsible in damages for
consequences of his tort even if damages so caused are greater because of prior
condition of victim which is aggravated by the tort.” Burnaman v. Risk Mgmt., Inc.,
97-250 (La.App. 3 Cir. 6/18/97), 698 So.2d 17, writ denied, 97-1832 (La. 10/31/97),
703 So.2d 23. Thus, the presence of pre-existing injuries or degenerative conditions
in Mr. and Mrs. Menard’s medical history does not preclude responsibility for any
aggravation or exacerbation of those injuries as a result of the April 2001 accident.
Defendants attempted to cast doubt on the causal link between the April
2001 accident and the subsequent injuries and pain by suggesting that an accident in
January 2001 could be responsible for those injuries. However, in Lancon v. State
Farm Mut. Ins. Co., 94-256 (La.App. 3 Cir. 10/5/94), 645 So.2d 692, writ denied, 95-
153 (La. 3/17/95), 651 So.2d 272, the third circuit reviewed a case in which the
defendant in a car accident lawsuit took the position that an accident between the
injured plaintiff and a third party five weeks after the accident between the plaintiff
and the defendant was actually responsible for aggravation of plaintiff’s pre-existing
condition. The court stated that the defendant had the burden of proving that the
second accident was responsible for the injuries, but did not meet this burden. The
defendants argued that none of the plaintiff’s doctors could testify with medical
certainty that it was the first accident, and not the second, which aggravated her 14 condition. The court stated, however, that merely raising the possibility is
insufficient to prove an intervening cause, which must instead be proven by a
preponderance of the evidence.” Id., citing Turner v. Nationwide Ins. Co., 503 So.2d
734 (La.App. 3d Cir. 1987).
In this case, merely raising the fact of the January 2001 accident is
insufficient to deflect causation and consequent responsibility for damages. While
the doctors who testified acknowledged a complete medical history, including past
trauma or injuries, was beneficial to diagnosis and treatment, none of the doctors
changed their testimony. In fact, Dr. LeBean specifically did not believe the January
2001 accident was relevant to his diagnosis. All of the doctors believed the April
2001 accident aggravated the Menards’ pre-exisiting conditions. The defendants did
not offer any contradictory medical opinions or evidence. While they point out that
Dr. Jarrott predicted the January 2001 accident would aggravate injuries they had
suffered in the past, this does not shift causation away from the April 2001 accident.
Mr. Menard’s medical bills totaled $42,476.95; Mrs. Menard’s totaled
$42,061.06. General damages cannot be fixed with purely objective certainty.
Wainright v. Fontenot, 00-492 (La. 10/17/00), 774 So.2d 70. They “involved mental
or physical pain or suffering, inconvenience, the loss of intellectual gratification or
physical enjoyment, or other losses of life or life-style which cannot be definitely
measured in monetary terms.” Duncan v. Kansas City, 00-66 (La.10/30/00), 773
So.2d 670, cited in LeBleu v. Safeway Ins. Co., 01-1637 (La.App. 3 Cir. 5/22/02), 824
So.2d 422). Together, the Menards made over thirty visits to four different doctors.
Mrs. Menard endured a painful knee surgery, and was no longer able to go dancing
with her husband. She was forced to rely on her daughter to help with housework.
Mr. Menard endured consistently severe pain, and was forced to give up horseback
riding. In addition, he suffered from the side effects of his hypertension medication. 15 He also has been unable to perform the full extent of his duties as a private
investigator. Thus, in addition to awarding them these past sums in medical
expenses, we award $50,000.00 to Mr. Menard and $40,000.00 to Mrs. Menard in
general damages.
IV.
CONCLUSION
For the above reasons, the jury verdict is reversed and judgment as
provided above is rendered on behalf of Elridge and Pauline Menard. Costs of appeal
are assessed to Federated Mutual Insurance Company.