Higgins v. American National General Insurance

798 So. 2d 1078, 1 La.App. 5 Cir. 193, 2001 La. App. LEXIS 1991, 2001 WL 1118033
CourtLouisiana Court of Appeal
DecidedSeptember 25, 2001
DocketNo. 01-CA-193
StatusPublished
Cited by4 cases

This text of 798 So. 2d 1078 (Higgins v. American National General Insurance) 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
Higgins v. American National General Insurance, 798 So. 2d 1078, 1 La.App. 5 Cir. 193, 2001 La. App. LEXIS 1991, 2001 WL 1118033 (La. Ct. App. 2001).

Opinion

1EDWARD A. DUFRESNE, JR., Chief Judge.

This is an appeal by American National General Insurance Company, defendant-appellant, from certain items of damages awarded by a jury to John and Ann Higgins and their son, Michael, in this automobile accident case. For the following reasons we amend the judgment to eliminate the awards of future physical and mental pain and suffering to John and Ann Higgins. In all other respects the judgment is affirmed.

The facts of the accident are not in dispute. At about 10 PM on the night in question, John Higgins was driving his family home from a high school basketball game when a second car ran a stop sign and struck the Higgins’ vehicle in the right front fender area. John, his wife Ann, their son Michael, and three other children in the car suffered injuries of varying severity.

In the case of Michael, he did not exhibit any serious symptoms immediately after the accident. However, four and one-half months later he began to experience chest and stomach pains and uncontrollable vomiting. | Jt was then discovered that he had a torn diaphragm and that his stomach had encroached into the chest cavity. It was also discovered that the stomach had developed small holes and was leaking gastric fluids into the chest cavity causing massive infection there. These, conditions [1081]*1081required several weeks of hospitalization and months of post-hospital care, eventually costing $123,000 in medical bills.

After a trial the jury rendered a verdict which included the following contested items of damages:

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American General’s motions for JNOV and new trial were denied, and this appeal followed. The plaintiffs also cross-appealed.

Six assignments of error are advanced by American General, the last three of which seek a reduction in the amount of damages. One assignment is urged by plaintiffs, in which they seek an increase in the amount of damages.

We begin with American General’s first allegation of error which concerns admission of testimony by Ann and John Higgins relating to the medical treatments undergone by their son Michael. In pretrial | -¡proceedings American General sought to exclude testimony by Ann and John relating to any pain and suffering they may have experienced in witnessing their son’s suffering during the later hospitalization and recovery. This effort eventually resulted in the following supreme court order:

The motion is granted, and the trial court is ordered to exclude any evidence at trial relating to plaintiffs’ mental anguish at witnessing their son’s operation, which occurred months after the accident at issue. See La.Code Civ. P., art. 2315.6; Trahan v. McManus, 97-1224 (La.3/2/99), 728 So.2d 1273.

The clear rationale of this ruling was to prevent testimony of the parents’ suffering in watching their son’s pain resulting from his post-accident surgery and recovery some five months after the accident because damages for this type of parental post-accident pain are simply not recoverable under La. Civ Code, Art. 2315.6.

However, Ann’s testimony at issue here was not directed to her suffering, but was instead her rendition of what she saw her son experiencing in the way of his compen-sable pain and suffering. While the testimony was admittedly dramatic, and perhaps made more so by Ann’s clinical knowledge as a nurse, it was nonetheless directed to what she observed Michael undergoing, and not what she was experiencing as a mother. The same is true for John’s testimony on this point. As such, the testimony was in compliance with the supreme court order and was otherwise probative of a recoverable element of dam[1082]*1082ages suffered by Michael. We therefore reject this argument.

American General’s second assignment is also without merit. At the conclusion of the defendant’s case, plaintiffs moved for a directed verdict on the issue of causation as to Michael’s later discovered torn diaphragm. RThe only evidence bearing on this point was the testimony of Michael’s treating physicians, all of whom agreed that the accident was the cause of the injury. Although all of the doctors agreed that late developing symptoms of a diaphragm hernia are unusual, all of them also said that such a phenomenon was known in the medical literature. They also agreed that this condition is known to be caused by a blunt trauma to the abdomen such as that experienced by seat belt injuries. They ruled out a congenital defect in Michael’s case, and none of them were aware of any other injury to the teenager that might have been severe enough to cause the hernia.

The defendant produced no witness to controvert the above testimony, nor did it establish that Michael had otherwise suffered any trauma in any way compatible with this type of injury. Its only argument here is that because the treating physicians all admitted that the late occurring symptoms were rare, the issue of causation should have gone to the jury. It also argues that the trial judge applied the wrong standard in assessing plaintiffs’ motion.

The standard applicable to motions for directed verdicts is set forth in Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713 (La.1986), as follows:

A directed verdict should only be granted when the facts and inferences point so strongly in favor of one party that the court believes reasonable people could not reach a contrary verdict. It is appropriate, not when there is a preponderance of evidence, but only when the evidence overwhelmingly points to one eonclusion.(at 718)

Based on the above expert testimony the trial judge granted the motion and stated from the bench that:

Regarding the motions as presented to the Court, this Court finds |Bthat the defendant clearly produced no expert medical evidence that the automobile accident of January 3, 1997 did not cause the diaphragmatic hernia. As the test of medical causation is to a reasonable medical probability, the evidence produced here by the defendant fails to reach even a prima facie level. Therefore, the Court concludes that the evidence regarding medical causation overwhelmingly points to a conclusion favoring plaintiffs.
More importantly, the Court opines that reasonable people would not agree otherwise.

Thus, while the judge noted that the defendant had not presented any evidence on an alternative causation, much less any such evidence which might rise to a prima facie case, that was not the standard which he eventually used to decide the motion. Instead he stated the proper standard, which is that quoted from Hastings, supra. We agree with the trial judge that the evidence here was so overwhelmingly in favor of plaintiffs’ case as to causation that reasonable people could not have reached a contrary conclusion. We therefore reject this assignment of error.

The third issue concerns the inadvertent showing to the jury of several seconds of a videotape of Michael’s surgical incisions and scarring, and the judge’s related ruling excluding testimony by defendant’s expert plastic surgeon as to the surgical amelioration of these scars. As to [1083]*1083the video tape, the defendant was provided with a full copy of it before trial. There was a pre-trial agreement, however, that the tape would not be shown as a motion picture, but rather selected still frames would be used.

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Bluebook (online)
798 So. 2d 1078, 1 La.App. 5 Cir. 193, 2001 La. App. LEXIS 1991, 2001 WL 1118033, Counsel Stack Legal Research, https://law.counselstack.com/opinion/higgins-v-american-national-general-insurance-lactapp-2001.