KARLIN RILEY NO. 19-CA-520 C/W 19-C-473 VERSUS FIFTH CIRCUIT RACHEL LEE HOLLANDER, JOHN D. HOLLANDER AND COURT OF APPEAL METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 765-256, DIVISION "K" HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING
May 28, 2020
JOHN J. MOLAISON, JR. JUDGE
Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and John J. Molaison, Jr.
AFFIRMED JJM FHW MEJ COUNSEL FOR PLAINTIFF/APPELLANT, KARLIN RILEY John W. Redmann Edward L. Moreno Kelly S. Rizzo
COUNSEL FOR DEFENDANT/APPELLEE, RACHEL HOLLANDER, JOHN HOLLANDER AND METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY Andre' C. Gaudin Ryan D. Kelley MOLAISON, J.
In this automobile accident case, plaintiff appeals from a jury verdict and
subsequent trial court denials of a judgment notwithstanding the verdict and a
motion for new trial on the issue of alleged damages. For the reasons that follow,
we affirm the jury’s verdict and the trial court’s rulings, and further deny relief on
plaintiff’s consolidated writ application, in which he challenges the trial court’s
assessment of costs in the underlying matter.
PROCEDURAL HISTORY
On October 16, 2015, a vehicle driven by plaintiff, Karlin Riley, was
involved in a rear end collision with a car driven by defendant, Rachel Hollander,
on I-10 in St. John Parish. Plaintiff thereafter filed a petition for damages in the
Twenty-Fourth Judicial District Court on September 27, 2016, naming Hollander,
her husband, and their insurer as defendants, alleging injuries that included pain
and suffering as well as past and future medical expenses. On September 26, 2018,
the trial court granted plaintiff’s motion for partial summary judgment on the issue
of liability, which determined that Hollander was at fault for the October 2015
collision. The matter proceeded to trial on April 15, 2019, at the conclusion of
which the jury returned a verdict in favor of defendants, awarding no monetary
damages to plaintiff. Plaintiff filed a motion for judgment notwithstanding the
verdict, a motion for new trial and, alternatively, for additur, which were all denied
by the trial court following a hearing on May 29, 2019. This timely appeal
follows.
FACTS
As noted above, liability was not an issue at trial. The trial court had
previously granted a partial summary judgment finding that Rachel Hollander was
fully liable for the rear end collision that occurred between her and plaintiff on
October 16, 2015.
19-CA-520 C/W 19-C-473 1 Plaintiff’s testimony at trial
Plaintiff testified at trial regarding his alleged injuries. He stated that, prior
to the accident with defendant, he had never before been in an accident or
sustained an injury that required medical treatment.1 This included the time he
spent playing college football. Plaintiff stated that immediately after the accident,
his body stiffened. At the scene of the accident, plaintiff did not tell defendant he
was injured, but told the investigating State Trooper that his neck was stiff and his
back was hurting. The stiffness and pain were worse the following day. He
continued to work on light duty the following week even though he was in extreme
pain. In connection with plaintiff’s testimony, the jury was shown pictures of the
damage to plaintiff’s vehicle taken right after the accident. Plaintiff did not know if
there was damage to the front of defendant’s vehicle.
After his pain increased, plaintiff first sought out an attorney, who then
referred him to a doctor. He went to see Dr. William Alden for his “neck” and
“back.” He also went to physical therapy at Dr. Alden’s offices. On some days, he
felt better than others. Plaintiff asserted that he never received relief that lasted for
more than an hour when he was treating with Dr. Alden, which contradicted notes
in Dr. Alden’s file which stated that plaintiff reported that therapy was helping.
Plaintiff stopped therapy upon the advice of his attorneys, and was discharged by
Dr. Alden in May of 2016.
After Dr. Alden, plaintiff went to see Dr. Alan Johnston, an orthopedic
surgeon, in April of 2016. Dr. Johnston recommended epidural steroid injections,
which plaintiff decided against. There is no indication in Dr. Johnson’s notes that
plaintiff refused the proposed injections because he thought they would not be
effective. Dr. Johnson never recommended surgery, only the injections, rest, and
1 Plaintiff later acknowledged in his trial testimony that he had been involved in previous automobile accident in 2011, but denied sustaining any injuries, although he had accepted a settlement check from the other driver’s insurance company.
19-CA-520 C/W 19-C-473 2 continued medication. Dr. Johnson discharged plaintiff in July of 2016 because he
had reached maximum medical improvement.
Plaintiff then consulted a neurosurgeon, Dr. Morrow, who wrote in
plaintiff’s report that he could not explain where plaintiff’s pain was originating
from. Plaintiff did not recall if Dr. Morrow stated on June 26, 2017, that he was
not a candidate for surgery before being discharged that same month.
Plaintiff was then referred to Dr. Liechty by his new attorneys. Plaintiff
testified that Dr. Liechty recommended two surgeries, one for his back and another
for his neck. Dr. Liechty never prescribed him either medical or physical therapy.
The recommended surgeries had not been scheduled as of the time of trial.
Dr. Alden
Dr. William Alden was accepted by the court as an expert in the fields of
physical and rehabilitation medicine. Dr. Alden did not have a specific recollection
of treating plaintiff, and referred to his written notes and plaintiff’s chart
throughout the testimony. According to Dr. Alden’s notes, he first saw plaintiff on
November 24, 2015. The plaintiff’s complaints were neck and back pain, left leg
pain, headaches, dizziness and chest pain, which he claimed were related to an
automobile collision. Plaintiff did not receive medical attention immediately
following the accident, and had his appointment with Dr. Alden approximately 40
days after the accident, at the direction of plaintiff’s attorney. Plaintiff continued to
work as a welder “for a while” after the accident. Dr. Alden’s noted indicated that
his findings after the first examination of plaintiff were “normal range of motion
with tenderness and spasms in the cervical or neck area bilaterally and in the
trapezius muscles and in the front, the sternocleidomastoid muscles…tenderness
on the left side of the chest …normal range of motion of the lumbar spine with
tenderness present bilaterally and … muscle spasms bilaterally.” Plaintiff also had
tenderness on the left thigh. Dr. Alden testified that plaintiff did not report a
19-CA-520 C/W 19-C-473 3 significant preexisting history of illness or injury, and he noted that plaintiff was a
former athlete. Dr. Alden prescribed anti-inflammatory medication as well as a
mild muscle relaxer. In plaintiff’s second visit with Dr. Alden on December 15,
2015, plaintiff complained of neck, back, left leg pain, headaches, dizziness, chest
pain, and right shoulder tenderness. Plaintiff’s X-rays from that visit were normal.
Plaintiff had an MRI prior to a visit with Dr. Alden on February 24, 2016. At
that time, plaintiff continued with complaints of neck, back, left leg pain,
headaches, dizziness and the chest pain. The MRI results showed bulging discs at
L3-L4 and L4-L5 and facet joint inflammation. Dr. Alden opined that the findings
were consistent with injuries you might see from rear-end collisions and also sports
injuries. There was also a lumbar MRI conducted, which showed a vertebral disc
with an annulus fibrous teas and a posterior subligamentous herniation on the left
side. Dr. Alden stated that it was difficult to establish the date of the tear, but based
on plaintiff’s lack of previous medical records and work history, it was “more
probable than not that that pathology did not exist before.” Dr. Alden
recommended that plaintiff consult with an orthopedic surgeon who could give
treatment that involved steroid injections.
Dr. Alden’s last visit with plaintiff was in early May of 2016. Plaintiff’s
initial pain levels had dropped from the previous appointment.
On cross examination, Dr. Alden was asked to review plaintiff’s intake
form. When asked on the form to identify the injured areas, plaintiff circled his
neck, back and part of the shoulders, but he did not appear to circle the lower back.
Plaintiff did not mention headaches, chest pain, or dizziness on the intake form.
Plaintiff did not indicate that he had suffered any type of head trauma in the
accident. Dr. Alden’s diagnosis of a sprain of the ligaments of the cervical spine in
the neck was based on the clinical history that plaintiff presented and plaintiff’s
assertion that there was no intervening trauma between the accident and the time
19-CA-520 C/W 19-C-473 4 that Dr. Alden examined him. Plaintiff’s pain rating was based solely on his
subjective complaints. Dr. Alden did not note that plaintiff was having any
difficulty moving on the days that he examined plaintiff. There was no indication
from the physical therapy notes at Dr. Alden’s clinic that plaintiff was unable to do
the exercises during treatment. A note in the file from March 18, 2016 showed that
plaintiff discharged himself from physical therapy.
At the time of the first examination, Dr. Alden understood that plaintiff was
working “full duty” as a welder. Plaintiff did not request a note from Dr. Alden to
reduce him to a lighter duty. A nurse practitioner in the office took plaintiff off of
work until he could see an orthopedic physician.
Dr. Morrow
Dr. Kevin Morrow, who examined plaintiff in 2017, was qualified as an
expert in the field of neurosurgery. At that time, plaintiff complained of cervical,
thoracic and lumbar back pain, as well as radiating pain in his left leg down to his
big toe. Dr. Morrow concluded that plaintiff was “full strength, normal reflexes”
and “neurologically intact.” He reviewed plaintiff’s MRI films and saw nothing
remarkable on the cervical MRI, but did note a disc bulge and bone spurs.
Dr. Morrow opined that the most likely cause of the conditions he observed
in plaintiff’s cervical spine was “aging” and “degeneration.” He did not see
anything in the thoracic MRI. In the lumbar MRI, Dr. Morrow noted a minor
central disc bulge with possible nerve impingement that he concluded was less
likely caused by traumatic event. Dr. Morrow gave plaintiff his opinion that
surgery would not help him.
In his objective findings, Dr. Morrow was not able to explain where
plaintiff’s pain was originating from, but he concluded that the pain was “out of
proportions [sic]” to the findings. Dr. Morrow suggested to plaintiff that he
undergo a rheumatological examination to find other possible causes of his pain,
19-CA-520 C/W 19-C-473 5 such as arthritis or lupus. Dr. Morrow could not conclude if plaintiff’s pain was
caused by the accident. He further opined that plaintiff was not a candidate for
fusion surgery at C3-4 or lumbar fusion surgery at L5-S1.
Defendant did not hire Dr. Morrow to testify, rather he was seen by plaintiff
on his own initiative through the University Medical Center clinic.
Dr. Todd
Dr. Andrew Todd was called by the defense and accepted as a medical
doctor with expertise in the specialty of orthopedic surgery and orthopedic spinal
surgery. He first saw plaintiff on October 19, 2018, at which time plaintiff claimed
having back and neck pain related to an automobile accident that occurred on
October 16, 2015. At the time of the visit, plaintiff reported having intense neck
pain that radiated into his shoulder, chest and shoulder blade. He also reported
symptoms in his index finger, as well as numbness in his thigh and shin, calf and
big toe. Plaintiff did not report radiating pain to Dr. Liechty one month later on
November 14, 2018. At the time Dr. Todd saw plaintiff, he was only on one
medication and was not in physical therapy.
Dr. Todd reviewed all the medical records provided to him, including MRIs
of the neck and back. After an examination, Dr. Todd concluded that plaintiff had
a full range of motion in his neck without pain when bending it forward and
backward, with exception of slight pain when doing the Spurling maneuver, which
is used to elicit nerve compression symptoms. He evaluated plaintiff’s shoulder
and found no gross weakness. He examined plaintiff’s lumbar spine and there
seemed to be “some exaggeration of pain on examination,” and he had full
extension. Dr. Todd stated that it was not normal to see a full range of motion in
someone reporting the level of pain that plaintiff did. He concluded that there was
amplification of pain when plaintiff reported back pain resulting from a maneuver
that did not involve the back, and similar amplification of pain involved with light
19-CA-520 C/W 19-C-473 6 touches to the skin on plaintiff’s back. Dr. Todd also noted that the pain reported
by plaintiff in his left leg did not correspond to any level of his spine.
Dr. Todd’s review of the 2016 MRI of plaintiff’s cervical spine showed
multilevel disc desiccation, meaning that the discs appear to have lost some of their
water content. Plaintiff had also developed bone spurs. Plaintiff’s lumbar spine
was slightly desiccated at L5-S1, and Dr. Todd saw protrusions or bulge of disc
material with a tear in the outer covering of the disc that was in contact with the S1
nerve root. He opined that that the 2017 MRI images were very similar to the 2016
images.
Dr. Todd described the findings of the MRIs as being degenerative in nature,
and opined that “more likely than not, the findings pre-dated the accident in
question.”2 In support of this conclusion, Dr. Todd explained that bone spurs form
because of changes and stresses around a disc over time. He estimated that 30-40
percent of the asymptomatic population in plaintiff’s age range have the sort of
pathology that is shown in plaintiff’s cervical films. He also saw minor arthritis in
some of plaintiff’s joints, and said that annular tears are not uncommon and occur
as part of the degenerative process. Dr. Todd believes that plaintiff’s conditions
pre-existed the accident, but that accident caused the conditions to become
symptomatic. He disagreed with Dr. Liechty’s recommendation for fusion
surgeries, and said that he had serious concerns about the surgeries offered to
plaintiff.
On cross examination, Dr. Todd explained that he was not provided with any
of plaintiff’s medical records from before the accident, and there is no objective
medical data that shows plaintiff’s symptoms began because of this accident. Dr.
2 At that time, plaintiff’s counsel requested a bench conference, at which time he argued that Dr. Todd was testifying beyond what was in his report. Defense counsel responded that Dr. Todd had mentioned these finding in the report, using the language “Exacerbation of his very minor degenerative findings in his cervical spine.” This testimony forms the basis of plaintiff’s second assignment of error.
19-CA-520 C/W 19-C-473 7 Todd clarified that any assessment made of plaintiff was based solely on plaintiff’s
own assertions.
Dr. Peter Liechty
The video deposition of Dr. Peter Liechty was played for the jury, but was
not transcribed for the record. A transcript from Dr. Liechty’s deposition does not
otherwise appear in the record. The record does contain a three page summary of
plaintiff’s evaluation sent from Dr. Liechty to plaintiff’s counsel.3 The letter stated,
in relevant part, Dr. Liechty’s conclusions that the rear-end collision more likely
than not caused plaintiff’s pain and that “surgical intervention” offered plaintiff
“the definitive treatment option.”
ASSIGNMENTS OF ERROR
1. The jury erred in finding that plaintiff was not injured as a result of the October 16, 2015 accident.
2. The trial court erred in allowing the defendants’ medical expert to testify about new expert opinions regarding causation, which were not contained in his La. C.C.P. art. 1465 detailed written report.
3. The trial court erred in denying plaintiff’s motion for judgment notwithstanding the verdict, in the alternative, for new trial and, alternatively, for additur.
LAW AND ANALYSIS
In his first assignment of error, plaintiff contends that the jury erred in
finding that he was not injured in the October 16, 2015 accident.
Whether an accident caused a person's injuries is a question of fact which
should not be reversed on appeal absent manifest error. Housley v. Cerise, 579
So.2d 973, 979 (La.1991). Louisiana jurisprudence has also established that when a
person was in good health prior to an accident, and symptoms appear after the
accident, that person's injuries are presumed to have resulted from the accident.
Bernard v. Hartford Insurance Co., 09-71 (La. App. 3 Cir. 6/3/09), 12 So.3d 1098,
3 The exhibit is identified in the record as “Plaintiff 1D In Globo.”
19-CA-520 C/W 19-C-473 8 1100-01, writ denied, 09-1524 (La.10/9/09), 18 So.3d 1285. That presumption
does not apply and/or is overcome should the jury conclude the plaintiff was not
credible and the claimed injuries were not caused by the accident. Dore v. Mitsui
Sumitomo Ins., USA, Inc., 12-875 (La. App. 3 Cir. 5/22/13), 117 So.3d 231, 235,
writ denied, 13-1953 (La. 11/8/13), 125 So.3d 1094
The finding reached by the jury, that plaintiff did not sustain injuries from
the accident, is a finding of fact. The standard of review for a factual finding by a
jury is articulated in Rosell v. ESCO, 549 So.2d 840 (La.1989). In that case the
Louisiana Supreme Court stated that it is well settled that an appellate court may
set aside a factual finding of a trial court or a jury only where the finding was
based on a “manifest error” or was “clearly wrong.” Id. at 844. Further, where
there is a conflict in the testimony, a trial court's or a jury's reasonable evaluations
of credibility and reasonable inferences of fact should not be disturbed on appeal,
even though the appellate court may feel that its own evaluations and inferences
are as reasonable as those of the trial court or the jury. Id. Finally, where there are
two permissible views of the evidence, the trial court's or the jury's choice between
them cannot be manifestly erroneous or clearly wrong. Id. See also Williams v.
Walgreen Louisiana Co., 14-716 (La. App. 5 Cir. 2/25/15), 168 So.3d 812, 828,
writ denied sub nom. Williams v. Walgreens Louisiana Co., 15-0610 (La. 6/1/15),
171 So.3d 262, and writ denied sub nom. Williams v. Walgreens Louisiana Co.,
15-0613 (La. 6/1/15), 171 So.3d 262.
In the instant matter, plaintiff contended that he sustained various injuries as
a result of the accident on October 16, 2015. However, the trier of fact is not
bound to accept a plaintiff's perception, or any other witness' perception, of the
nature and extent of his injuries. Ladner v. Gov't Employees' Insurance Co., 08-
0323 (La. App. 4 Cir. 10/8/08), 992 So.2d 1098, 1102, writ denied, 08–2864
(La.2/6/09), 999 So.2d 783. At trial, plaintiff’s claim that he had not been in a
19-CA-520 C/W 19-C-473 9 prior accident was shown to be false. The jury was presented with photographs of
the damage to the back of plaintiff’s vehicle, which appeared to be minimal.
Plaintiff testified that he reported to work in the weeks following the accident and
sought out legal counsel before receiving a medical evaluation. There was
evidence that conservative treatment helped plaintiff’s symptoms, which plaintiff
denied. Plaintiff chose not to pursue other conservative treatments as an alternative
to surgery. Testimony from several doctors who had treated and evaluated plaintiff
over time demonstrated that some of plaintiff’s complaints of pain were
exaggerated and not consistent with the injuries he claimed to have. Medical
testimony also included opinions that plaintiff’s complaints were not accident
related, but instead were degenerative in nature and, more likely than not, existed
before the accident.
Based on our review of the record, we cannot say that the jury was clearly
wrong in finding that plaintiff was not injured as a result of the accident. The jury
made a determination that one view of the evidence was more credible than the
other, and we are not permitted to disturb reasonable evaluations of credibility and
reasonable inferences of fact on appeal. Therefore, we must uphold the jury's
findings of fact in this case.
Second Assignment of Error
In his second assignment of error, plaintiff contends that the trial court erred
in allowing Dr. Todd, an expert retained by defendant, to give an opinion regarding
causation of plaintiff’s alleged injuries as pre-existing the accident, which he
argues was not contained in his La. C.C.P. art. 1465 detailed written report.
Plaintiff claims that, by allowing Dr. Todd to present a new theory of causation at
trial, his case was unfairly prejudiced.
The record shows that plaintiff’s counsel requested a bench conference to
assert that Dr. Todd was raising a new theory of causation in his trial testimony.
19-CA-520 C/W 19-C-473 10 The trial court disagreed with plaintiff’s characterization of the testimony as a new
theory, and cited to specific language in Dr. Todd’s report where he makes
reference to plaintiff’s pre-existing or degenerative changes.
THE COURT:
But it says that there's an exacerbation of minor degenerative changes. I mean, that’s -- that is the -- . . .
Exacerbation indicates that there has been some aggravation of something that was already present.
Plaintiff’s counsel appeared to withdraw any challenge after being assured by the
trial court that he would be able to raise the issue during the cross-examination of
Dr. Todd.
MR. REDMANN [PLAINTIFF’S COUNSEL]:
It's stunning that he can say that those words mean that what I meant was he wasn't hurt in this accident. I don't know how to fix it. I mean, the words came out of his mouth.
MR. GAUDIN [DEFENSE COUNSEL]:
You can cross-examine on these issues.
Okay. I'll allow you to cross-examine him on that, okay?
MR. REDMANN:
All right. I'd like -- Maybe after the jury breaks I can proffer the report and put an objection on the record.
Plaintiff’s counsel did, in fact, specifically ask Dr. Todd on cross-examination
about his observation that plaintiff had a condition that pre-existed before the
accident.
Okay. Now, I got kind of thrown for a loop because I didn't understand it from reading your report, but you indicated that the disc in his neck and the disc in his back that are -- that have issues, that showed up, and that Dr. Liechty talked about in his court deposition, they may have been bad and, in your opinion, they had problems even before the accident; but what's
19-CA-520 C/W 19-C-473 11 significant, if I understood your testimony is, these discs were not generating any symptoms.
It does not appear from the record that plaintiff’s counsel later made a formal
objection to Dr. Todd’s testimony regarding a pre-exiting injury, nor did counsel
proffer a copy of Dr. Todd’s report into evidence.
In order to preserve an evidentiary issue for appellate review, it is essential
that the complaining party enter a contemporaneous objection to the evidence and
state the reasons for the objection. Matthews v. Breaux, 04-958 (La. App. 5 Cir.
2/15/05), 896 So.2d 1146, 1150. The failure to make a contemporaneous objection
in the trial court waives the right of a party to complain about the ruling on appeal.
Hyland v. American Guarantee and Liability Insurance Company, 04-305 (La.
App. 5 Cir. 9/28/04), 885 So.2d 30, 34. Here, while counsel for plaintiff arguably
objected to Dr. Todd’s testimony by requesting a bench conference, it appears that
the objection was withdrawn when counsel cross-examined Dr. Todd on the same
subject matter. Further, even if we deem this issue to be preserved, Dr. Todd’s
report was not proffered into evidence and preserved pursuant to La. C.C.P. art.
1636. Accordingly, we have no basis upon which to consider plaintiff’s argument.
We therefore find this assignment to be without merit.
Third Assignment of Error
In his third assignment of error, plaintiff argues that the trial court erred in
denying his motion for judgment notwithstanding the verdict (JNOV), motion for
new trial and, alternatively, for additur.
JNOV
The standard to be used in determining whether a JNOV has been properly
granted was set forth in Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00),
774 So.2d 84, 89:
A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that
19-CA-520 C/W 19-C-473 12 reasonable jurors could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non- moving party.
The standard of review for a JNOV on appeal is a two-part inquiry. In
reviewing a JNOV, the appellate court must first determine if the trial court erred
in granting the JNOV. This is done by using the aforementioned criteria just as the
trial judge does in deciding whether or not to grant the motion. After determining
that the trial court correctly applied its standard of review as to the jury verdict, the
appellate court reviews the JNOV using the manifest error standard of review. Id.
If reasonable people could have arrived at the same verdict, given the evidence
presented to the jury, then the JNOV is improper. Miller v. PNK, 11–216 (La. App.
3 Cir. 10/5/11), 76 So.3d 122, 130 (citing Anderson v. New Orleans Pub. Serv.,
Inc., 583 So.2d 829 (La.1991)).
As we have already reviewed the jury's findings and found no manifest
error, we cannot say that the jury's verdict as finally rendered was unreasonable or
clearly contrary to the law and the evidence. Accordingly, we find no error in the
trial court’s denial of plaintiff’s judgment notwithstanding the verdict.
Motion for New Trial
The standard of review for the denial of a motion for new trial is abuse of
discretion. Davis v. Coregis Ins. Co., 00-475 (La. App. 3 Cir. 12/27/00), 789 So.2d
7, writ denied, 01-292 (La. 3/30/01), 788 So.2d 1192. La C.C.P. art. 1972 states,
in relevant part:
A new trial shall be granted, upon contradictory motion of any party, in the following cases:
19-CA-520 C/W 19-C-473 13 (1) When the verdict or judgment appears clearly contrary to the law and the evidence.
For the reasons previously stated, we find no abuse of discretion in the trial
court’s ruling that the evidence presented at trial supported the jury’s verdict, and
that the verdict is not contrary to law.
Additur
With respect to plaintiff's complaint regarding the denial of his motion for
additur, plaintiff has failed to brief this assignment of error on appeal. All
assignments of error must be briefed and the appellate court may consider as
abandoned any assigned error that has not been briefed. Accordingly, we find
plaintiff has abandoned this assignment of error, and therefore decline to consider
the merits of this assignment. La. U.R.C.A. 2-12.4; Johnson v. Spurlock, 07-949
(La. App. 5 Cir. 5/27/08), 986 So.2d 724, 729, writ denied, 08-1400 (La. 7/25/08),
986 So.2d 670 (citing Silbernagel v. Silbernagel, 06-879 (La. App. 5 Cir. 4/11/07),
958 So.2d 13, 20).
WRIT 19-C-473
After the completion of trial, on May 16, 2019, defendants filed a motion to
tax costs against plaintiff in the amount of $53,586.534 pursuant to La. C.C.P. art.
1920, which provides:
Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause. Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.
In opposing the motion to tax costs, plaintiff argued that he had been granted forma
pauperis status on June 11, 2019, and that taxing costs against him under that
circumstance would be inequitable, especially considering the evidence of his
4 This amount represents defendant’s total claim for expert fees, depositions, medical records and court costs.
19-CA-520 C/W 19-C-473 14 injury presented at trial. Plaintiff further argued that the expert fees were
excessive, specifically for defendants’ vocational rehabilitationist, Barney
Hegwood, who billed over $22,000.
A hearing on the motion was held on August 7, 2019, at the conclusion of
which the trial court granted defendants’ motion, awarding costs against plaintiff in
the amount of $25,000. A transcript of the hearing is not included in the writ
application or in the record on appeal; however, the trial court stated in its
September 19, 2019 written reasons for judgment:
After reviewing the evidence submitted by defendants, in particular the invoice from Barney Hegwood, the court exercised its discretion under La. C.C.P. article 1920 and reduced the total costs recoverable by defendants to $25,000.00. The court finds this amount is equitable. This matter took four days to try in front of a jury. Defendants incurred considerable costs defending plaintiff’s allegations, and the jury found plaintiff suffered no injury as a result of the accident. Considering this verdict, the court finds it is inequitable to make defendants bear all costs of the defense. Furthermore, plaintiff did not proceed to trial in forma pauperis. These trial costs were incurred prior to plaintiff applying for this status. Plaintiff did not apply for this status until June 7, 2019, almost two months after trial and after defendants submitted their motion to tax costs.
Plaintiff filed a timely writ application with this Court to challenge the trial court’s
ruling. In an order dated November 18, 2019, plaintiff’s writ application was
consolidated with his pending appeal, based upon a finding that the issues were
interrelated.
LSA–C.C. Art. 1920 affords the trial court broad discretion in assessing
court costs and allows the trial court to render judgment for costs against any party
as it may consider equitable. Earles v. Ahlstedt, 591 So.2d 741 (La. App. 1st
Cir.1991). A trial court's assessment of costs can be reversed by an appellate court
only upon a showing of abuse of discretion. State v. Nicholls College Foundation,
592 So.2d 419 (La. App. 1st Cir.1991), writ denied, 593 So.2d 651 (La.1992).
After a review of the application, and on the showing made, we find no abuse of
19-CA-520 C/W 19-C-473 15 discretion in the trial court’s assessment of costs in this matter. Accordingly, we
deny relief.
DECREE
For the reasons assigned, we affirm the jury’s verdict regarding damages and
find no error in the trial court’s denial of plaintiff’s judgment notwithstanding the
verdict and motion for new trial. We further find no abuse of discretion in the trial
court’s assessment of costs against plaintiff.
AFFIRMED
19-CA-520 C/W 19-C-473 16 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
MARY E. LEGNON FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY MAY 28, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-CA-520 C/W 19-C-473 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE ELLEN SHIRER KOVACH (DISTRICT JUDGE) EDWARD L. MORENO (APPELLANT) KELLY S. RIZZO (APPELLANT) ANDRE' C. GAUDIN (APPELLEE)
MAILED JOHN W. REDMANN (ATTORNEY) KERNAN A. HAND (ATTORNEY) RYAN D. KELLEY (ATTORNEY) TRAVIS J. CAUSEY, JR. (ATTORNEY) 4220 SAINT ELIZABETH DRIVE 5213 AIRLINE DRIVE CHRISTIAN GALLEGUILLOS (ATTORNEY) KENNER, LA 70065 METAIRIE, LA 70001 1101 WESTBANK EXPRESSWAY GRETNA, LA 70053