Kennedy v. Thomas

784 So. 2d 692, 2001 WL 322762
CourtLouisiana Court of Appeal
DecidedApril 4, 2001
Docket34,530-CA
StatusPublished
Cited by11 cases

This text of 784 So. 2d 692 (Kennedy v. Thomas) 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
Kennedy v. Thomas, 784 So. 2d 692, 2001 WL 322762 (La. Ct. App. 2001).

Opinion

784 So.2d 692 (2001)

Johnny L. KENNEDY, et al., Plaintiffs-Appellants,
v.
Rayburn E. THOMAS, et al., Defendants-Appellees.

No. 34,530-CA.

Court of Appeal of Louisiana, Second Circuit.

April 4, 2001.

*694 Robert A. Jahnke, Edward O. Kernaghan, Shreveport, Counsel for Appellants.

*695 Lunn, Irion, Johnson, Salley & Carlisle, by Jack E. Carlisle, Jr., Shreveport, Counsel for Appellees.

Before NORRIS, GASKINS and KOSTELKA, JJ.

GASKINS, J.

The plaintiffs, Johnny and Janice P. Kennedy, individually and on behalf of their minor son, Joshua Kennedy, appeal from a jury verdict and trial court judgment arising from injuries sustained by Joshua at the Happy Day Nursery and Daycare Center. For the following reasons, we affirm the jury verdict and trial court judgment.

FACTS

The plaintiffs are the parents of Joshua Kennedy, a four-year-old child who attended the Happy Day Nursery and Daycare Center. On June 12, 1996, a piece of furniture, possibly a locker in the gymnasium, fell on Joshua, crushing his nose. Following the injury, the child had five surgeries on his nose. His treating physician thought that he would need at least seven more surgeries as he matured. The plaintiffs filed suit, individually and on behalf of their minor son, against the day care and other individuals connected with that enterprise. The defendants stipulated liability. The issue of quantum was tried before a jury.

At trial, Joshua's treating ear, nose, and throat physician, Dr. James Robinson, testified. He stated that he first saw the child in the hospital emergency room on the day of the injury and that Joshua had the most severe injury he had ever seen in a pediatric patient. In the accident, Joshua sustained a comminuted fracture of his nose. His nasal bone was in 7-10 fragments. Surgery was done to repair the nose on June 18, 1997. The surgery had been delayed to allow a reduction in swelling. A couple of weeks after the repair, Joshua was again placed under anesthesia in order to remove nasal packing. This constituted the second surgery. In January 1997, surgery was performed to divide scar tissue that had formed in the nose. In September 1997, Joshua's tonsils and adenoids were removed. In May 1999, surgery was again performed to allow the nose to drain better. Although noting that the child's nose appeared normal at the time of trial, Dr. Robinson opined that the growth plates in Joshua's nose had been destroyed in the accident. He stated that the nose would not grow normally and, as an adult, Joshua would be left with a small nose with an upturned, pig-like appearance. In addition to the cosmetic deformity, he would be more susceptible to airway obstructions. It was noted that Joshua has nasal allergies which were not caused by the injury. According to Dr. Robinson, Joshua would frequently require antihistamines, decongestants and antibiotics for the remainder of his life.

Dr. Robert Thornton, also an ear, nose and throat specialist, examined Joshua on behalf of the defendants. Dr. Thornton testified that the nose had been repaired very well. He noted that the septum was still deviated and Joshua would need two additional surgeries after puberty to alleviate the problem. He stated that this could cost up to $20,000.00. However, Dr. Thornton opined that, because the fractures were well repaired, the nose would continue to grow normally. He did not think that the nose would be cosmetically deformed.

Janice Kennedy, Joshua's mother, testified that since the accident, the child has the sniffles all the time and has headaches 3 to 4 times per week. He also frequently has dark circles and puffiness under his eyes. Joshua has difficulty breathing at *696 night and he snores. Mrs. Kennedy stated that since the accident, Joshua is very protective of his face, but has played baseball and basketball.

On January 26, 2000, the jury returned a unanimous verdict against the defendants[1] and in favor of the plaintiffs in the following amounts:

Past medical expenses ..................... $26,023.14
Future medical expenses ................... $20,000.00
Past and future physical pain and
  suffering ............................... $25,000.00
Past and future mental pain and
  suffering ............................... $ 8,000.00
Loss of gratification of intellectual
  or physical enjoyment ................... $ 5,000.00
Permanent disability ...................... $ 2,500.00
Loss of future economic opportunity ....... $ 2,500.00
Loss of consortium to
  Johnny Kennedy .......................... $ 5,000.00
Loss of consortium to
  Janice P. Kennedy ....................... $10,000.00

The total amount of damages assessed against the defendants was $104,023.14.

The plaintiffs filed a motion for judgment notwithstanding the verdict (JNOV), arguing that the awards for past and future physical pain and suffering, past and future mental pain and suffering, and permanent disability were inadequate. They argued that the awards should be increased to $200,000.00, $50,000.00, and $50,000.00, respectively. On June 1, 2000, the trial court denied the motion for JNOV, stating:

Although the undersigned judge would have assessed monetary damages as to each category at a slightly higher amount, this judge is not permitted to act as the 13th juror. There is, in fact and law, a rational basis for the jury to have arrived at its verdict as set forth in the Judgment filed April 28, 2000. The motion is hereby denied.

The plaintiffs appealed devolutively from the jury verdict and judgment and the trial court decision denying the motion for JNOV. According to the plaintiffs, the trial court erred in refusing to instruct the jury that the testimony of a treating physician should be given greater weight than that of an independent medical examiner and that the trial court erred in denying the motion for JNOV. The plaintiffs also attack as inadequate the jury awards for future medical expenses, past and future physical pain and suffering, past and future mental pain and suffering, and permanent disability.

JURY INSTRUCTIONS

The plaintiffs argue that the trial court erred in refusing to include a jury instruction regarding the weight to be given the testimony of a treating physician.

The plaintiffs requested an instruction that the opinion of the treating physician who has been in close contact with the patient over a long period of time is entitled to greater weight than that of an equally well-qualified physician who has not had the benefit of close and frequent contact and examination. The trial judge declined to give this instruction, finding that it made a comment on the evidence.

La. C.C.P. art. 1793 provides in pertinent part:

A. At the close of the evidence, or at such earlier time as the court reasonably directs, a party may file written requests that the court instruct the jury on the law as set forth in the requests.
B. The court shall inform the parties of its proposed action on the written requests *697 and shall also inform the parties of the instructions it intends to give to the jury at the close of the evidence within a reasonable time prior to their arguments to the jury.

Adequate jury instructions are those which fairly and reasonably point up the issues and which provide correct principles of law for the jury to apply to those issues. Doyle v. Picadilly Cafeterias, 576 So.2d 1143 (La.App. 3d Cir.1991); Evangeline Farmers Cooperative v. Fontenot, 565 So.2d 1040 (La.App. 3d Cir.1990);

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Green v. ABC Rentals
224 So. 3d 1165 (Louisiana Court of Appeal, 2017)
Linnear v. Centerpoint Energy Entex/Reliant Energy
945 So. 2d 1 (Louisiana Court of Appeal, 2006)
McBride v. XYZ Insurance
935 So. 2d 326 (Louisiana Court of Appeal, 2006)
Williams v. Enriquez
935 So. 2d 269 (Louisiana Court of Appeal, 2006)
Murchison v. Lyndon Property Ins. Co.
896 So. 2d 214 (Louisiana Court of Appeal, 2004)
Ford v. Bazile
871 So. 2d 612 (Louisiana Court of Appeal, 2004)
Hays v. State
856 So. 2d 64 (Louisiana Court of Appeal, 2003)
Smart v. Kansas City Southern RR
830 So. 2d 581 (Louisiana Court of Appeal, 2002)
Brandao v. Wal-Mart Stores, Inc.
803 So. 2d 1039 (Louisiana Court of Appeal, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
784 So. 2d 692, 2001 WL 322762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennedy-v-thomas-lactapp-2001.