STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-0958
LAURA COX, ET UX.
VERSUS
SHELTER INSURANCE COMPANY, ET AL.
************
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-20066398 HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, and Jimmie C. Peters and J. David Painter, Judges.
AFFIRMED IN PART, REVERSED IN PART, AMENDED IN PART, AND RENDERED.
Lee A. Archer Law Office of Lee A. Archer 1225 Rustic Lane Lake Charles, LA 70605 (337) 474-4712 COUNSEL FOR PLAINTIFFS/APPELLANTS: Laura Cox Brown C. Linzay Brown Frank Tomeny, III Tomeny & Fisher 6709 Perkins Road Baton Rouge, LA 70808 (225) 767-8333 COUNSEL FOR PLAINTIFFS/APPELLANTS: Laura Cox Brown C. Linzay Brown
Jason L. Melancon Melancon, Rimes 8706 Jefferson Highway, Suite B Baton Rouge, LA 70809 (225) 303-0455 COUNSEL FOR PLAINTIFFS/APPELLANTS: Laura Cox Brown C. Linzay Brown
Thomas R. Hightower, Jr. Patrick Wade Kee Michael S. Harper A Professional Law Corporation 1019 Lafayette Street Post Office Drawer 51288 Lafayette, LA 70505 (337) 233-0555 COUNSEL FOR DEFENDANTS/APPELLANTS: Shelter Mutual Insurance Company Caroline E. Lambert PETERS, J.
The plaintiffs in this personal injury action, Laura Cox Brown and her
husband, C. Linzay Brown, brought suit against Caroline E. Lambert and her liability
insurer, Shelter Insurance Company, to recover damages they sustained in a multi-
vehicle accident that occurred in Lafayette Parish on January 2, 2006. After a jury
trial in April of 2008, the final judgment set Mrs. Brown’s general damages at
$25,000.00 and the couple’s past and future medical expenses at $86,000.00 but
reduced the awards by fifty percent. The Browns now appeal the judgment, asserting
four assignments of error. For the following reasons, we reverse the trial court
judgment in part and render judgment in favor of the Browns, finding no fault on the
part of Mrs. Brown in causing the accident, increasing the quantum award, and taxing
all court costs to the defendants.
DISCUSSION OF THE RECORD
The accident in dispute occurred on Kaliste Saloom Road in Lafayette Parish
and involved four vehicles driving in the same direction. Franklin D. Robinson
operated the lead vehicle, Peggy LeBlanc operated the next, Mrs. Brown operated the
next, and Ms. Lambert operated the last. The accident began to develop when Mr.
Robinson stopped his vehicle to avoid an unrelated accident that had taken place in
front of him as he approached a red light. Ms. LeBlanc timely responded by coming
to a full stop behind Mr. Robinson. As Mrs. Brown attempted to stop, her vehicle
was struck from the rear by Ms. Lambert’s. While there exists a question concerning
whether Mrs. Brown’s vehicle struck Ms. LeBlanc’s before being struck by the
Lambert vehicle, it is unquestioned that Ms. Lambert’s vehicle did strike Mrs.
Brown’s, driving it into the rear of Ms. LeBlanc’s vehicle, which was in turn driven
into the rear of Mr. Robinson’s vehicle. With regard to the impact sequence, Mrs. Brown testified that she had come to
a complete stop before being struck by the Lambert vehicle and that her first impact
with Ms. LeBlanc occurred when her vehicle was driven into the rear of Ms.
LeBlanc’s vehicle by the impact from the Lambert vehicle. Her version of the
accident was supported by the testimony of Officer James Soileau of the Lafayette
Police Department, who was the investigating officer at the scene of the accident.
Officer Soileau testified that both Ms. LeBlanc and Mrs. Brown told him that Mrs.
Brown had come to a complete stop and that Mrs. Brown’s vehicle impacted Ms.
LeBlanc’s only after Ms. Lambert’s impact with Mrs. Brown’s vehicle.
Ms. LeBlanc disputed the single impact scenario. She gave Officer Soileau a
written statement shortly after the accident in which she asserted that Mrs. Brown’s
vehicle struck hers before Ms. Lambert impacted Mrs. Brown’s vehicle, and that after
that impact, she was struck again by Mrs. Brown’s vehicle. She repeated the two-
impact assertion in her trial testimony.
Ms. Lambert’s testimony was conflicting on this point. She first testified that
she observed Mrs. Brown’s vehicle impact with Ms. LeBlanc’s before she struck Mrs.
Brown. However, despite making this assertion, she admitted that she could not see
in front of Mrs. Brown’s vehicle. In describing how she struck Mrs. Brown, Ms.
Lambert testified that there was nothing that prevented her from seeing Mrs. Brown’s
vehicle. She explained that she first slowed down because she was approaching a red
light; that she saw Mrs. Brown’s brake lights go on as Mrs. Brown also slowed for
the red light; that the light turned green, Mrs. Brown’s brake lights went off, and both
she and Mrs. Brown began to accelerate; that she then saw Mrs. Brown’s brake lights
go on again; and that two seconds later she hit the back of Mrs. Brown’s vehicle. Ms.
2 Lambert also testified that while the three women were waiting for the police officer
to arrive at the scene of the accident, Mrs. Brown told her that she “had contacted Ms.
LeBlanc’s car, and then she felt me [Ms. Lambert] contact her car.” Mrs. Brown
denied making such a statement.
Richard Fox, an accident reconstruction expert with Acadiana Research and
Reconstruction in Lafayette, Louisiana, testified on behalf of the Browns and
concluded that there was no evidence of two impacts on the rear bumper of Ms.
LeBlanc’s car or on the front bumper of Mrs. Brown’s car. He reached this
conclusion based on his examination of the photographs taken of the various vehicles
involved in the accident as well as the damage estimates for each vehicle. Of
particular importance to Mr. Fox was the damage to the rear quarter panel of Mrs.
Brown’s vehicle on the driver’s side and the fact that the damage to the immediate
rear of the vehicle was on the driver’s side. He explained that this damage
represented an “offset collision” wherein Ms. Lambert veered slightly to the left when
she realized a collision was about to occur. The damage to the side of Mrs. Brown’s
vehicle was caused, not from direct impact, but from the crinkling effect of the offset
impact in the rear. He noted that the LeBlanc vehicle had no similar damage.
Additionally, he testified that the other damage to Mrs. Brown’s vehicle was
consistent with this type of impact.1 Observing that the damage to Ms. LeBlanc’s
vehicle resembled more of a “flat hit,” Mr. Fox concluded that the damage reflected
was not caused in this accident. Mr. Fox also recognized that the damage to the front
of Ms. Lambert’s vehicle was significantly more than that to either of the other two
1 In addition to the damage to the bumper and side panel, the absorber and metal plate behind the absorber, the frame horn on the driver’s side, and the tailpipe and muffler on Mrs. Brown’s vehicle were damaged to the extent that they had to be replaced.
3 vehicles. He estimated that Ms. LeBlanc’s vehicle impacted Mr. Robinson’s vehicle
at less than five miles per hour, given the lack of damage to the forward vehicle and
the fact that the air bag did not deploy; and that Ms. Lambert’s vehicle was traveling
at approximately seventeen miles per hour, given the fact that it pushed the Brown
vehicle into the LeBlanc vehicle with sufficient force to cause significant damage.
He saw no evidence of two impacts with the LeBlanc vehicle.
On the other hand, Stephen A. Killingsworth, also an accident reconstruction
expert from Lafayette, Louisiana, testified on behalf of the defendants and said that
in the “most probable of the scenarios that I’ve looked at there was a dual impact to
the LeBlanc vehicle.” Mr. Killingsworth had available all the information upon
which Mr. Fox relied, and additionally, researched the design systems of each of the
vehicles involved in the accident. He agreed with Mr. Fox’s conclusion that the
center of the Lambert vehicle impacted the driver’s side of the Brown vehicle and that
this caused the buckling of the left rear quarter panel. He also acknowledged that the
impact caused sufficient damage to require the various components of the Brown
vehicle to be replaced. When he turned to the analysis of the rear of the LeBlanc
vehicle, Mr. Killingsworth noted little damage to that vehicle. He concluded that this
lack of damage could be attributed to the fact that, unlike the Brown and Lambert
vehicles, the bumpers of the Brown and LeBlanc vehicles were on the same level.
However, noting that the right front of the Brown vehicle had some damage and that
its hood was ajar, he concluded that a prior impact had occurred. Mr. Killingsworth
claimed in his testimony that while he was aware that the right side of Mrs. Brown’s
vehicle had some damage, he initially could not determine whether it was old or new
damage until he listened to the testimony at trial. He reached his two-impact
4 conclusion while at lunch before being called to testify. This is despite the fact that
he had been long identified as the defendants’ expert on the nature of the collisions.
On cross-examination, Mr. Killingsworth testified that in one of the scenarios
he considered before trial, he concluded that the Brown vehicle struck the LeBlanc
vehicle at the exact moment the Lambert vehicle struck hers. Additionally, he
acknowledged that his conclusions concerning the impact were based on a number
of variables and/or unknowns, including the speed of the vehicles and the point at
which either or both drivers engaged their brakes. He also acknowledged that at the
time his deposition was taken, he did not believe the accident involved two impacts
between the LeBlanc and Brown vehicles, and he only changed his mind based on the
testimony he heard at trial.
Regardless of the mechanics of the accident itself, Mrs. Brown did sustain
serious personal injuries, although the full extent of the injuries and the need for
future medical treatment were issues at trial. At the time of the accident, Mrs. Brown
was twenty-four years of age, with an eighteen-month-old daughter, and had no
significant previous medical history. Two days after the accident, she presented
herself to Dr. Richard P. Sylvester, D.C., a Lafayette, Louisiana chiropractor, for
evaluation and treatment of her mid-back complaints of pain. Dr. Sylvester saw Mrs.
Brown seven times between January 4, 2006 and March 8, 2006, treating her
condition with adjustments, heat, massage, and electrical therapy. On January 9,
2006, Mrs. Brown underwent an MRI pursuant to Dr. Sylvester’s referral, which
showed that at the T11-T12 level there was disc desiccation with a mild disc space
narrowing and a mild diffuse disc bulge.
5 While seeking treatment from Dr. Sylvester, Mrs. Brown also began seeing Dr.
Robert D. Franklin, M.D., a Lafayette, Louisiana physiatrist. Dr. Franklin first saw
Mrs. Brown on February 23, 2006. According to Dr. Franklin, she presented herself
to him with complaints of cervical neck pain and stiffness throughout her back, with
pain in both her lower back muscles and over the lower lumbar region. His initial
examination produced objective evidence of soft tissue injury, and he prescribed anti-
inflammatory medication to treat her complaints.
At an April 11, 2006 visit, Dr. Franklin observed that Mrs. Brown was guarded
in her movements and was walking with a limp. He concluded that the manner in
which Mrs. Brown was moving demonstrated her attempt to avoid pain in her
activities and that the limp was caused by a spasm in the right lumbar paraspinals.
Dr. Franklin prescribed pain medication and ordered a thoracic and lumbar MRI scan.
That April 12, 2006 MRI revealed that at the T11-T12 disc level, there was disc
desiccation, mild disc space narrowing, and a small disc bulge with an annular tear
in the ligament. Dr. Franklin then referred Mrs. Brown to Dr. Patrick Juneau, III, a
Lafayette, Louisiana neurosurgeon, for an evaluation.
Dr. Juneau first saw Mrs. Brown on March 3, 2006. Based on his examination
of the patient as well as the MRI test results, Dr. Juneau confirmed Dr. Franklin’s
opinion with regard to the disc protrusion between the T11-T12 disc level and
attributed that injury to the accident of January 2, 2006. Dr. Juneau found this
condition consistent with her complaints of pain in the lower back, explaining that
such an injury can cause pain in the lower part of the back, between the shoulder
blades, and even around the front of the body. At that time, he recommended that the
injury be treated conservatively and that she be followed by his office.
6 On July 11, 2006, Mrs. Brown returned to Dr. Franklin, who testified that on
that day his patient continued to complain of mid and low back pain, suffered from
a decreased range of motion on forward flexion, and had a guarded motion when
extending. He continued her on anti-inflammatory and pain medication and
suggested physical therapy. Mrs. Brown last came to his office on August 9, 2006,
when his physician’s assistant noted in the records that she was responding to
physical therapy.
Dr. Tracy Hebert, Ph.D., an expert in the field of physical therapy, testified that
Mrs. Brown had participated in eighteen sessions of physical therapy at the Boulet
Rehabilitation facility in Lafayette, Louisiana between July 13, 2006 and September
7, 2006. In those sessions, she received deep tissue massage, manual treatment, heat
treatments, electrical stimulation, therapeutic exercise, and instruction in home
exercises. According to Dr. Hebert, Mrs. Brown reported that she was undergoing
daily problems, including extra pain when lifting heavy weights, difficulty sitting in
a chair for long periods, difficulty traveling, and extra pain when standing. In the last
three visits for physical therapy, Mrs. Brown did not report pain, and when she was
discharged on September 7, she had significantly less pain although she reported
occasional increased pain when picking up her daughter, who was then two years old
and weighed twenty-five pounds. Upon discharge she was given a home exercise
program. Dr. Hebert testified that Mrs. Brown’s pain complaints were consistent with
disc pathology at T11-T12.
Mrs. Brown testified that even after physical therapy, she continued to have
problems sitting, problems picking up her daughter, and back pain. At the time of
7 trial, she was continuing with the exercise program recommended by Dr. Hebert and
was working out three times per week.
Mrs. Brown began seeing Dr. David L. Weir, M.D., a neurologist at the
Southeast Neuroscience Center in Lafayette, Louisiana, on October 2, 2006. His
medical records were introduced into evidence. Following the first examination, Dr.
Weir’s records reflect that Mrs. Brown suffered from pain in the thoracic spine,
thoracic paraspinal muscle spasms, decreased sensation in the right distal leg and
foot, and headaches due to her thoracic and cervical strain. His plan for her treatment
included muscle relaxers, anti-inflammatories, and trigger point and botox injections
to relieve the muscle spasms. He also ordered an MRI of the thoracic area. That
October 2, 2006 MRI confirmed the findings of the MRI performed on April 12,
2006, again revealing a disc bulge with an annular fissure and disc degeneration at
T11-T12. At her next visit with Dr. Weir, on October 19, 2006, she continued to
complain of neck and thoracic pain, with fairly severe headaches about once a month,
muscle spasms in the cervical paraspinal and trapezius muscles, and spasms in the
thoracic paraspinal muscles.
Based on these complaints and his findings, Dr. Weir continued the treatment
plan already in place of muscle relaxers, anti-inflammatories, botox injections, and
trigger point injections and added Imitrex and Ultracet for pain. At the follow-up
visit on January 10, 2007, Dr. Weir’s examination revealed that Mrs. Brown was
tender and had spasms in the right cervical paraspinal muscles. Dr. Weir noted that
she was unable to have the scheduled botox injections because she was then
8 pregnant.2 He did inject a combination of Kenalog and Marcaine into the areas that
were in spasm.
At the May 15, 2007 follow-up visit, Dr. Weir noted that Mrs. Brown’s neck
was supple, with a good range of motion, but that she was having tingling down her
right leg. On June 27, 2007, when Dr. Weir again sent Mrs. Brown for an MRI, her
thoracic spine imaging could not be completed because she was in her third trimester
of pregnancy. At the September 4, 2007 examination, Dr. Weir’s records indicate that
Mrs. Brown had spasms of the cervical and thoracic paraspinal muscles. In an effort
to relieve the spasms, Dr. Weir told her to continue RS Medical Stimulation and
referred her to Dr. Denise Florane, a local chiropractor. After examining Mrs. Brown
on November 12, 2007, Dr. Weir’s records reflect that Mrs. Brown developed a
headache, which seemed to follow increasing neck pain, and that an examination
revealed that she continued to have “spasms of the cervical paraspinal muscles,
specifically the upper, mid, and especially the lower thoracic muscles.” At that time,
Dr. Weir recommended an anti-inflammatory, a muscle relaxant, and massage
therapy. He also recommended botox injections of the cervical paraspinal muscles
once she stopped breast-feeding.
On Dr. Weir’s recommendation, Mrs. Brown began treatment with Dr. Denise
Florane, D.C., a chiropractor at the Mosaic Chiropractic Clinic in Lafayette,
Louisiana. Between September 24, 2007, and March 24, 2008, Dr. Florane treated
Mrs. Brown nineteen times.
Dr. Juneau’s office records from December 5, 2007 reflect that he had reviewed
Mrs. Brown’s MRIs of April 12, 2006; October 2, 2006; January 9, 2007; and June
2 Mrs. Brown gave birth to her second child, a daughter, in August of 2007.
9 27, 2007. Based on his review of these test results, he concluded that Mrs. Brown
suffered from a disc protrusion at T11-T12. He also concluded that because Mrs.
Brown was having significant and persistent pain, and her symptoms were not getting
better, she was a candidate for a T11-T12 disc excision with instrumented fusion,
which would cost approximately $100,000.00. Dr. Juneau’s records further reflect
his conclusion that if Mrs. Brown were to undergo the operation, she would suffer a
degree of permanent disability that would preclude her from being able to perform the
lifting activities required of a nurse. At the same time, the records reveal the doctor’s
conclusion that if Mrs. Brown did not have the surgery, and if she continued to have
persistent and rather severe thoracolumbar pain, she would still be unable to work as
a nurse.
In his trial testimony, Dr. Juneau explained that Mrs. Brown’s succession of
MRIs consistently revealed the presence of a protruding disc at T11-T12. According
to the doctor, such a protruding disc could cause pain in the lower part of the back,
between the shoulder blades, and could wrap around the stomach. Based on the lack
of history of back problems, he was of the opinion that the herniation at T11-T12 is
caused by the January 2, 2006 car accident. Dr. Juneau further opined that, given the
fact that Mrs. Brown continued in pain years post-accident, the injury was not going
to heal on its own, and her only options were to live with the pain for the rest of her
life or consider surgical intervention. Dr. Juneau also testified that he had spoken
with Mrs. Brown by telephone on April 20, 2008, and she informed him that the pain
had now extended to the front of her body. He indicated that because the pain was
wrapping around to the front, it made the recommendation of surgery more valid.
Although his December 5, 2007 office notes state that the cost of such an operation
10 would be in the range of $100,000.00, at trial Dr. Juneau suggested that the estimated
cost of the surgery would be $80,000.00.
Mrs. Brown testified at trial that she was still having pain, primarily when
required to sit for any period of time. She stated that her entire back constantly felt
like it had a “charley horse” and she continued to suffer from severe headaches.
According to Mrs. Brown, she definitely intended to have the surgery Dr. Juneau
recommended, but she had not had the surgery as of the time of trial.
Mr. Brown testified in support of both his wife’s claim and his loss of
consortium claim. According to Mr. Brown, he is a self-employed general contractor
who works forty to fifty hours per week outside the home, but when Mrs. Brown has
doctor’s appointments, he has to leave his work to take care of their two daughters.
He testified that he normally arrives home each evening around 6:00 p.m. and helps
with the cooking and care of the two children because Mrs. Brown is in constant
pain. He testified that Mrs. Brown is often “short” with him and the children since
the accident and that family road trips are much harder on her than before. For that
reason, they seldom see his family members who are scattered from Alabama to
Louisiana.
The defendants’ rebuttal evidence consisted of surveillance videos depicting
Mrs. Brown in her daily activities that were taken by a private investigator and the
testimony of Brenda McCall, a payroll bookkeeper at Lafayette Total Eyecare, in
Lafayette, Louisiana. The surveillance videos, which were taken on October 30 and
31, 2007; December 19, 2007; and February 19, 20, and 21, 2008, depict Mrs. Brown
entering and exiting various buildings, carrying a baby carrier, placing the baby
carrier in the car and later removing it, going shopping for groceries and at
11 department stores, placing her groceries and other purchases in her vehicle, carrying
a large bag over her shoulder, and going to the gym for times that ranged from twenty
minutes to an hour and twenty minutes. In the October 31, 2007 video, Mrs. Brown
appeared to have difficulty lifting the baby carrier from her grocery cart, and three
times placed her hand in the small of her back. Ms. McCall testified that Mrs. Brown
worked at Lafayette Total Eyecare from April 17, 2006, until June 1, 2006, and that
during that time, she never heard Mrs. Brown complain of a physical injury.
Trial began on April 22, 2008, and the jury responded to the interrogatories
propounded to it on April 24, 2008, in the following manner:
1. Do you find that Caroline Lambert was negligent or at fault in the incident of January 2, 2006?
Yes / No
If your answer to Question Number 1 was “yes,” please proceed to Question Number 2. If your answer to Question Number 1 was “no,” please have the jury foreperson sign where indicated and return to the judge.
2. Was the negligence or fault of Laura Cox Brown in causing a sudden emergency the cause of the incident of January 2, 2006?
Yes No /
If your answer to Question Number 2 was “yes,” please have the jury foreperson sign where indicated and return to the judge. If no, please proceed to Question Number 3.
3. Do you find that Laura Cox Brown suffered injuries as a result of the fault and/or negligence of Caroline Lambert?
If your answer to Question Number 3 was “no,” please have the jury foreperson sign his or her name in the appropriate place at the end of this form, and return it to the Court. If your answer to question Number 3 was “yes” please proceed to question number 4.
12 4. Do you find that Laura Cox Brown’s injuries were the sole result of her actions in rear-ending the Peggy LeBlanc vehicle?
If you answer “yes,” to question number 4, please have the jury foreperson sign where indicated and return it to the Judge. If your answer to question 4 is “No,” please proceed to question number 5.
5. Please state the percentage of negligence, if any, which you attribute to the defendant, Caroline Lambert, and to the plaintiff, Laura Cox Brown. (Please note the total percentages assigned must equal to 100%).
Laura Cox Brown 50% Caroline Lambert 50%
6. What amount, in dollars and cents, do you award to Laura Cox Brown?
Physical Pain (past and future) $ 25,000.00 Mental Anguish (past and future) $ .00 Disability $ .00 Past Medical Expenses $ 26,000.00 Future Medical Expenses $ 60,000.00 Loss of Enjoyment of Life $ .00
7. What amount, in dollars and cents, do you award to Mr. C. Linzay Brown?
Loss of consortium $ .00
The trial court incorporated these findings in its judgment and taxed the costs of the
litigation to the Browns.
After the trial court signed the judgment on September 8, 2008, the Browns
perfected this appeal. In their appeal, the Browns assert that the assessment of fifty
percent fault on the part of Mrs. Brown was error, that the damage awards are
inadequate, and that the trial court erred in assessing all costs of the litigation to them.
13 OPINION
We evaluate negligence actions under a duty/risk analysis. To be successful
a plaintiff must establish by a preponderance of the evidence the five prongs of the
duty/risk analysis: (1) the defendant owed a duty of care to the plaintiff, (2) the
defendant breached that duty, (3) the breach of that duty by the defendant was a
cause-in-fact of the plaintiff’s injuries, (4) the breach was the legal cause of the harm
suffered by the plaintiff, and (5) the plaintiff suffered damages. Hanks v. Entergy
Corp., 06-477 (La. 12/18/06), 944 So.2d 564. If the plaintiff fails to establish any of
these elements by a preponderance of evidence, he or she may not recover.
Assessment of Fault
The duty element involved in this litigation is set forth in La.R.S. 32:81(A),
which provides 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.” If a following
motorist strikes the forward vehicle from the rear, he or she is presumed to have
breached the duty imposed by La.R.S. 32:81(A). 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 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.
Menard v. Federated Mut. Ins. Co., 05-85, pp. 3-4, (La.App. 3 Cir. 6/22/05), 906 So.2d 746, 750, writ denied, 05-1925 (La. 3/10/06), 925 So.2d 506.
14 In answering the first and second interrogatories as it did, the jury found that
the plaintiffs established the first four elements of the duty/risk analysis by a
preponderance of the evidence. Additionally, in its answer to the third interrogatory,
the jury found that the plaintiffs had established the fifth element of the duty/risk
analysis by a preponderance of the evidence. That is to say, the jury concluded that
Ms. Lambert was negligent in causing the accident sued upon and the resulting
injuries to Mr. and Mrs. Brown; that Mrs. Brown did not cause a sudden emergency
that contributed to the cause of the accident, i.e., that she did not negligently create
a hazard that Ms. Lambert could not reasonably avoid; and that the Browns suffered
injuries as a result of Ms. Lambert’s negligence or fault. Although not specifically
stating so, the jury implicitly rejected the “two-impact” theory asserted by the
defendants. The instruction following the third interrogatory should have directed the
jury to proceed immediately to Interrogatory Number Six and award damages. That
is to say, the jury’s inquiry should have ended at this point. Instead, the instruction
directed the jury to answer the next interrogatory.
The apparent premise of the fourth interrogatory, in referring to Mrs. Brown’s
“actions in rear-ending the Peggy LeBlanc vehicle” is that Ms. Brown created a
hazard that Ms. Lambert could not avoid by striking Ms. LeBlanc’s vehicle before
Ms. Lambert impacted her vehicle—a factual scenario clearly rejected by the jury in
its answer to the second interrogatory. While the fourth interrogatory can be
interpreted in numerous ways, the interpretation consistent with the jury’s answers
to the first three interrogatories is that, in answering this interrogatory in the negative,
the jury simply reaffirmed what it had already stated—that the sole cause of this
accident and the resulting injuries was the negligence or fault of Ms. Lambert. Given
15 the answers to the first three interrogatories, the fourth interrogatory was basically
redundant. Still, the instruction that followed this interrogatory created a critical error
in that it too should have directed the jury to proceed immediately to Interrogatory
Number Six and award damages. Instead, it directed the jury to answer the next
interrogatory, an error that, when followed by the jury, caused the jury’s verdict to
become inherently incorrect. Despite having found that the sole cause of the accident
was the negligence or fault of Ms. Lambert, the jury assigned fifty percent of the fault
in causing the accident to Mrs. Brown.3
Normally, when we find that a jury interrogatory is tainted with legal error,
we set aside the jury finding associated with that legal error and perform a de novo
review of the record as it relates to that error. State ex rel. Dept. of Transp. and Dev.
v. Wade, 07-1385 (La.App. 3 Cir. 5/28/08), 984 So.2d 918, writ denied, 08-1896 (La.
12/12/08), 997 So.2d 561. Here, based on the responses to the first four
interrogatories, the trial court erred in instructing the jury to answer Interrogatory
Number Five. In performing a de novo review with regard to the issue of comparative
fault, we conclude that the answers to the first four interrogatories are supported by
the record and that the jury erred in finding Mrs. Brown fifty percent negligent in
causing the accident sued upon. That being the case, we set aside the finding of
negligence on the part of Mrs. Brown and assign one hundred percent of the fault in
causing the accident to Ms. Lambert.
3 It is significant to note that the interrogatory is couched in terms of “negligence” in causing the accident and not in terms of causation of injuries. Had the interrogatory referred to causation of injuries, the jury’s finding might have given credence to the argument that there was a first impact and that some of Mrs. Brown’s injuries might have been caused by the first impact instead of the second.
16 General Damages
The Browns contend that the jury erred in awarding them only $25,000.00 in
general damages. They argue that the $25,000.00 award for Mrs. Brown’s past and
future physical pain and suffering should be increased and that this court should make
awards for Mrs. Brown’s past and future mental anguish, disability, and loss of
enjoyment of life and for the loss of consortium suffered by Mr. Brown.
In considering whether the award of general damages is excessive, we are
guided by the decision in Youn v. Maritime Overseas Corp., 623 So.2d 1257,
(La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059 (1994), wherein the supreme
court noted that “the discretion vested in the trier of fact is ‘great,’ and even vast, so
that an appellate court should rarely disturb an award of general damages.” Under
Youn, “[t]he 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.” Id. at 1260. Only after the initial
inquiry is answered in the affirmative should the appellate court increase or reduce
the award. Id.
Mrs. Brown was only twenty-four years old at the time of the accident, and her
uncontroverted testimony was that she had never had any back pain before the
accident. Now she has a protruding disc between T11-T12, which Dr. Juneau
testified will not heal on its own. At trial, which occurred two years after the
accident, she had ongoing, daily problems resulting from the accident: problems
picking up her children or lifting any heavy weight, pain when sitting or standing for
long periods of time, and severe headaches. Mrs. Brown testified that some days are
better than others, but that her pain averages a five out of ten on a daily basis. She
17 has sought every type of medical care available to her and diligently followed the
regimen of physical therapy that was recommended. The record before us, including
the video surveillance, shows that Mrs. Brown is in pain but makes the best of her
situation, continuing with her daily activities despite the pain and working hard to
improve her injuries. With no expectation that the protruding disc will improve, Mrs.
Brown is facing a serious surgery or daily suffering for the rest of her life. Given the
record before us, we conclude that the award of $25,000.00 in general damages is
abusively low.
As the jury’s answer to the sixth interrogatory indicates, the award of
$25,000.00 was only for past and future physical pain. The jury awarded nothing for
her corresponding mental anguish, disability, or loss of enjoyment of life. The
supreme court has held that when a jury’s award for damages is excessively low, even
when the jury awards no damages for a particular item, this court can only increase
the award “to the lowest amount which is reasonably within the court’s discretion.”
Ryan v. Zurich Am. Ins. Co., 07-2312, p. 7 (La. 7/1/08), 988 So.2d 214, 219.
Accordingly, we will raise Mrs. Brown’s general damage award4 to the lowest point
that was reasonably within the discretion of the trier of fact. Youn, 623 So.2d 1257.
In adjusting the award, we will refer to prior awards in similar cases to determine the
lowest point of an award within that discretion. Coco v. Winston Indus., Inc., 341
So.2d 332 (La.1976). Considering the effects of the particular injury on Mrs. Brown,
and in particular her youth and the consequent lengthy extent of her probable
suffering, we award her general damages of $250,000.00. See Clark v. Matthews, 04-
848 (La.App. 5 Cir. 1/11/05), 891 So.2d 799, writ denied, 05-473 (La. 4/22/05), 899
4 Rather than award separate amounts for each individual category, we will award one amount for general damages.
18 So.2d 577; Franz v. First Bank Sys., Inc., 03-448 (La.App. 4 Cir. 2/11/04), 868 So.2d
155, writs denied, 04-648, 04-649 (La. 4/30/04), 872 So.2d 493, 496; Desselle v.
LaFleur, 03-562 (La.App. 3 Cir. 2/4/04), 865 So.2d 954; Sepulvado v. Turner, 37,912
(La.App. 2 Cir. 12/10/03), 862 So.2d 457, writ denied, 04-89 (La. 3/19/04), 869
So.2d 855; Scott v. Roberts, 03-435 (La.App. 3 Cir. 10/1/03), 856 So.2d 1258, writ
denied, 03-3028 (La. 1/30/04), 865 So.2d 80; Day v. Ouachita Parish Sch. Bd.,
35,831 (La.App. 2 Cir. 8/8/02), 823 So.2d 1039, writ denied, 02-2532 (La. 12/19/02),
833 So.2d 343; Kerrigan v. Imperial Fire and Cas. Ins. Co., 99-603, 99-604 (La.App.
3 Cir. 11/3/99), 748 So.2d 67, writ denied, 99-3410 (La. 2/4/00), 754 So.2d 236.
The jury made no award to Mr. Brown for his loss of consortium. The
compensable elements of damage in a claim for loss of consortium of a spouse
include loss of love and affection, loss of companionship, loss of material services,
loss of support, impairment of sexual relations, loss of aid and assistance, and loss of
felicity. Ferrell v. Fireman’s Fund Ins. Co., 96-3028 (La. 7/1/97), 696 So.2d 569.
Mr. Brown testified at trial concerning his wife’s shortness with him, stating that
before the accident and her resulting back pain, she had not behaved that way toward
him. Further, Mr. Brown is required to take on more of the household and childcare
responsibilities, to the detriment of his career and responsibilities as a self-employed
contractor, because Mrs. Brown is exhausted from dealing with her pain by the end
of the day. Her inability to sit for long periods of time means that they are not able
to make road trips, and, therefore, he has not seen his immediate family, who live in
other areas of the state and in nearby states, as often as he did before the accident.
We find an award of $25,000.00 to be the lowest amount that was reasonably within
19 the discretion of the trier of fact under the circumstances of this case. See Scott, 856
So.2d 1258.
Special Damages
The Browns also contend that the jury’s award of $60,000.00 in future medical
expenses is unreasonably low. We agree.
The plaintiff has the burden of proving, by a preponderance of the evidence,
entitlement to special damages such as future medical expenses. Thibeaux v. Trotter,
04-482 (La.App. 3 Cir. 9/29/04), 883 So.2d 1128, writ denied, 04-2692 (La. 2/18/05),
896 So.2d 31. In meeting her burden of proof on this issue, Mrs. Brown must show
that more probably than not, these expenses will be incurred and she must present
medical testimony that they are indicated and the probable cost of these expenses.
Veazey v. State Farm Mut. Auto Ins., 587 So.2d 5 (La.App. 3 Cir. 1991). The jury’s
award of such special damages is reviewed under the manifest error standard of
review. Thibeaux, 896 So.2d 31.
Here the jury awarded Mrs. Brown $26,000.00 in past medical expenses,
almost one hundred percent of the $26,058.45 in medical expenses that she had
incurred as of the date of trial. Thus, the jury obviously believed that Mrs. Brown’s
injuries required medical intervention and that the treatment she sought was
appropriate. However, the award of $60,000.00 in future medical expenses bears no
relation to the testimony or documentary evidence concerning her future medical
expenses.
With regard to future medical treatment, Mrs. Brown testified at trial that she
had a scheduled appointment with Dr. Wier in June of 2008. Dr. Wier’s records
reflect that his charges for medical visits range from $126.00 to $198.00. The only
20 other evidence concerning Mrs. Brown’s future medical expenses was presented by
Dr. Juneau. According to Dr. Juneau, Mrs. Brown’s condition had reached the point
that her choices were to live with the pain and disability for the rest of her life or to
submit herself to surgery to alleviate the pain. The first choice would obviously
require continued medical treatment which would be similar in cost to that which she
had been receiving, while the second would range between $80,000.00 and
$100,000.00. In either situation, according to Dr. Juneau, Mrs. Brown’s physical
activities would be limited in that she would suffer a permanent disability. Although
the defendants suggested that Dr. Juneau’s recommendation of surgery was primarily
based on a mistaken belief that Mrs. Brown had told him, in a phone conversation in
April of 2008, that the pain was wrapping around to the front of her body, Dr.
Juneau’s office note of December 5, 2007, reflects that he recommended the surgery
on that date, long before his April 2008 conversation with Mrs. Brown.
Mrs. Brown testified that she would have the surgery in order to rid herself of
the pain she has had since the accident. There was no evidence presented to
contradict or rebut her testimony. Furthermore, it is understandable that she had not
yet submitted herself to surgery by the date of trial, given the fact that she gave birth
to her second child in August of 2007, and Dr. Juneau first recommended the surgery
in December of 2007.
We find the jury’s verdict on this issue to be inconsistent with the evidence
presented at trial. Specifically, the award of $60,000.00 in future medical expenses
bears no relation to any of the evidence presented. In light of this internally
inconsistent verdict, we conclude that the jury manifestly erred in failing to award the
full value of the medical treatment that was established at trial to be medically
21 necessary and we amend the award to $80,126.00, the minimum amount of future
medical expenses established at trial.
Loss of Earning Capacity
The trial on the merits began on Tuesday, April 22, 2008. On Thursday, April
17, 2008, the defendants filed two motions in limine, seeking to exclude testimony
from Glenn M. Hebert, a Lafayette, Louisiana vocational rehabilitation counselor, and
Dr. R. Douglas Womack, Ph.D., a Lafayette, Louisiana consulting economist,
concerning Mrs. Brown’s loss of earning capacity. The trial court held a hearing on
these motions the day before the trial was to begin and, at the close of that hearing,
granted the motions to exclude the testimony. Immediately before the trial began the
next day, the trial court clarified its ruling, stating that Mr. Hebert could not testify
at all and that Dr. Womack could not testify on any wage issue.5
In response to this ruling, the Browns moved to proffer the excluded evidence.
The trial court did not allow them to make a proffer on the record. Instead, it required
the Browns to submit their evidence by affidavit. Pursuant to the trial court’s order,
the Browns proffered the affidavit of each excluded expert; the affidavit of Dr. Juneau
stating that Mrs. Brown is permanently restricted to “light duty” as a result of her
injuries in the accident; and the affidavits from Mr. and Mrs. Brown setting forth
what their testimony would have been regarding Mrs. Brown’s loss of future earning
capacity. The defendants countered these affidavits with some of the pleadings
addressing the issue; excerpts from Mrs. Brown’s pretiral deposition; excerpts from
Mr. Hebert’s pretrial deposition; excerpts from a deposition of Dr. Roger W. Kula,
5 On December 10, 2008, the trial court signed a judgment stating that it granted the motions in limine “excluding any and all evidence and/or testimony regarding vocational opportunities and/or salaries sought to be introduced by Plaintiff for the field of nursing” from either Mr. Hebert or Dr. Womack. However, the oral ruling issued immediately before trial began was much more extensive in that the trial court prohibited any testimony from the two experts concerning lost wages.
22 MD, a New York physician deposed by the Browns who did not testify at trial; a copy
of an order from the Western District of Louisiana United States District Court, in
Mulligan v. Chevron USA, Inc., 06-1062 W.D.La. (7/27/07), in which the trial court
ruled that Mr. Hebert would not be allowed to testify in the matter before that court;
a transcript of the July 25, 2007 Daubert hearing contesting Mr. Hebert’s ability to
testify in Mulligan; and excerpts from Mr. Hebert’s deposition in this case.
The Browns argue on appeal that the trial court erred in granting the motions
in limine and in not allowing their experts to testify. We agree.
Louisiana Code of Evidence Article 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
This rule is subject to the balancing requirements of La.Code. Evid. art. 403, which
allows relevant evidence to be excluded “if its probative value is substantively
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury.” Id. The trial judge is vested with broad discretion in ruling on the scope
of expert testimony. La.Code Evid. art. 702.
In their motions before the trial court as well as before us on appeal, the
defendants do not argue that the evidence at issue should have been precluded based
on the balancing requirement of La.Code Evid. art. 403. Instead, they argue that the
testimony is not admissible under the standards set out in Daubert v. Merrell Dow
Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993).
We find that the defendants’ reliance on Daubert is clearly without merit.
Daubert is applicable where the complaint is to the methodology or some new
23 scientific or medical technique that may be used by an expert witness in his or her
testimony. Here the defendants complain of nothing more than the correctness of the
factual basis underlying the experts’ opinions. That being the case, the Daubert
factors are not relevant. Menard v. Lafayette Ins. Co., 09-29 (La.App. 3 Cir. 6/3/09),
13 So.3d 794, writ granted, 09-1869 (La. 11/20/09), 25 So.3d 804.
The trial court did not base its decision on the defendants’ Daubert argument.
Instead, it concluded that neither witness could testify concerning loss of earning
capacity because, at the time of trial, Mrs. Brown had not enrolled in nursing school
and was not then a nutritionist. That being the case, the trial court concluded, any
testimony concerning lost wages in either of these two fields would be based on
conjecture.
The general rule is that “the factual basis for an expert’s opinion goes to the
credibility of the testimony, not its admissibility, and it is up to the opposing party to
examine the factual basis of the opinion in cross-examination.” Loudermill v. Dow
Chem. Co., 863 F.2d 566, 570 (8 Cir.1988). Appellate review of a question of law
is simply a decision as to whether the trial court’s decision is legally correct or
incorrect. Jim Walter Homes, Inc. v. Jessen, 98-1685 (La.App. 3 Cir. 3/31/99), 732
So.2d 699. The fact that Mrs. Brown had not enrolled in nursing school does not, as
a matter of law, preclude the Browns from presenting expert testimony on whether
Mrs. Brown suffered a loss of earning capacity because she is now unable to become
a nurse. The factual basis of the experts’ opinions is a credibility issue that should
have been resolved by the jury. Loudermill, 863 F.2d 566. Accordingly, we find that
the trial court erred in granting the defendants’ motion in limine to exclude the
testimony of Mr. Hebert and Dr. Womack.
24 We need not remand this matter for a new trial on this issue because the proffer
provides us with a complete record. When a complete record has been made through
a proffer, “the appellate court is able to conduct a de novo review of the record,
including the proffered evidence, to render a decision on appeal.” Williams v.
Williams, 06-2491, p. 10 (La.App. 1 Cir. 9/14/07), 970 So.2d 633, 640.
Because the trial court placed no limits on the content or amount that could be
submitted in the parties’ proffers, we conclude that the record is sufficiently complete
to allow us to render a judgment on the issue of Mrs. Brown’s loss of future earning
capacity without a remand for additional evidence. Foley v. Entergy La., Inc., 06-983
(La. 11/29/06), 946 So.2d 144. Accordingly, we review the record de novo to award
the appropriate damages for any loss of Mrs. Brown’s future earning capacity the
Browns may have established. Williams, 970 So.2d 633.
This court explained the meaning of loss of earning capacity in Batiste v. New
Hampshire Ins. Co., 94-1467, p. 3-4 (La.App. 3 Cir. 5/3/95), 657 So.2d 168, 170, writ
denied, 95-1413 (La. 9/22/95), 660 So.2d 472 (citations omitted):
Loss of earning capacity is not the same as lost wages. Rather, earning capacity refers to a person’s potential. Earning capacity is not necessarily determined by actual loss. While the plaintiff’s earnings at the time of the accident may be relevant, such figures are not necessarily indicative of his past or future lost earning capacity. The plaintiff need not be working or even in a certain profession to recover this type of award. What is being compensated is the plaintiff’s lost ability to earn a certain amount, and he may recover such damages even though he may never have seen fit to take advantage of that capacity.
In determining whether a personal injury plaintiff is entitled to recover for the loss of earning capacity, the trial court should consider whether and how much plaintiff’s current condition disadvantages him in the work force. The trial court should thus ask itself what plaintiff might be able to have earned but for his injuries and what he may now earn given his resulting condition.
25 The very nature of lost earning capacity makes it impossible to measure the loss with any kind of mathematical certainty. The facts of each case must take into account a variety of factors, including the plaintiff’s condition prior to the accident, his work record prior to and after the accident, his previous earnings, the likelihood of his ability to earn a certain amount but for the accident, the amount of work life remaining, inflation, and the plaintiff’s employment opportunities before and after the accident.
Mrs. Brown testified at trial that she graduated from University of Louisiana
at Lafayette in 2004 with a degree in dietetics, having earned a 3.69 grade point
average. When she graduated, she did not become employed in the dietetics field
both because she needed fifteen hours in graduate courses before she could get into
the internship program and because she was already pregnant with their first
daughter. Mrs. Brown’s proffered affidavit asserts that in December of 2005, she
spoke with Bonnie Johnson, the head of Louisiana State University-Eunice’s nursing
program; that Ms. Johnson had reviewed Mrs. Brown’s transcripts from University
of Louisiana at Lafayette and prepared a degree plan outlining the courses that would
apply toward Mrs. Brown’s nursing degree; and that Ms. Johnson had advised Mrs.
Brown that she was eligible for the “Fast Track” nursing program and could graduate
in twenty-four months. Mrs. Brown further asserted in her affidavit that she had
obtained a formal application before the January 2, 2006 accident which had a March
1, 2006 deadline for submission, and that she fully intended to pursue a nursing
career.
Dr. Juneau’s proffered affidavit assets that Mrs. Brown “is permanently
restricted to ‘light duty’ as a direct result of the injuries associated with her motor
vehicle accident on January 2, 2006,” and that her medical restrictions related to her
injuries would prohibit her from becoming a nurse. The trial evidence separate from
the proffer supports this conclusion as well. Dr. Juneau’s December 5, 2007 office
26 note, which was introduced into evidence at trial, reflects his conclusion that if Mrs.
Brown were to undergo the operation she would suffer a degree of permanent
disability that would preclude her from being able to perform the lifting activities
required of a nurse, while if she did not did not have the surgery and continued to
have persistent and rather severe thoracolumbar pain, she would still be unable to
work as a nurse. The permanent disability testified to by Dr. Juneau is not
controverted with any other medical evidence. In his proffered affidavit, Mr. Hebert
agreed with Dr. Juneau’s conclusion that Mrs. Brown’s permanent injuries would
preclude her from pursuing a nursing profession.
After reviewing the record as a whole, we accept Dr. Juneau’s statement that
Mrs. Brown will be permanently restricted to “light duty,” and Mr. Hebert’s assertion
that this restriction prevents her from receiving a nursing degree. We also find
credible Mrs. Brown’s statement that she intended to earn a nursing degree. In
making that finding, we place great emphasis on her former scholastic success.
However, we note that there was no indication that Mrs. Brown is unable to pursue
a career in dietetics because of the accident. Accordingly, we conclude that the
proper measure of Mrs. Brown’s lost earning capacity is the difference between a
future career in nursing and one in dietetics.
Dr. Womack’s proffered affidavit and report detail the economic value of Mrs.
Brown’s loss of earning capacity. Dr. Womack based his calculations on the theory
that had the accident not occurred, Mrs. Brown could have become a certified
nutritionist within two years after the accident and that had she done so, her earning
capacity would have been approximately $43,680.00 per year; that if Mrs. Brown
completed her training in dietary science and began working as a dietitian/nutritionist
27 in June of 2009, attributing this delay to her accident, her earning capacity would be
only $31,830.00 per year; and that if Mrs. Brown had become a registered nurse in
June of 2009, her earning capacity would be $51,750.00 per year. Because we have
found that Mrs. Brown’s accident did not impinge on her career as a
dietitian/nutritionist, we base our evaluation of Mrs. Brown’s loss of earning capacity
on the salary difference between a dietitian/nutritionist earning $43,680.00 per year
and a registered nurse earning $51,750.00, and assume that she would have begun
working in either field in June of 2009, when her youngest child was almost two
years old. Dr. Womack’s report shows that the present value of Mrs. Brown’s earning
capacity as a dietitian/nutritionist earning $43,680.00 per year is $1,113,522.00, while
the present value of her earning capacity as a registered nurse earning $51,750.00 per
year is $1,262,951.00. Accordingly, we find that Mrs. Brown’s loss of earning
capacity has a present-day value of $149,429.00 and amend the trial court’s judgment
to reflect that new award.
Court Costs
On March 20, 2008, the defendants tendered an offer of judgment pursuant to
La.Code Civ.P. art. 970, wherein they offered to settle all claims arising from the
automobile accident for $90,000.00. The Browns rejected this offer. On May 16,
2009, the defendants moved to tax all costs incurred since March 20, 2008, to the
Browns because the ultimate judgment rendered at trial was less than twenty-five
percent of the $90,000.00 offered tendered by the defendants on March 20, 2008. See
La.Code Civ.P. art. 970(C). The trial court granted the defendants that relief, and the
Browns argue on appeal that this assessment was in error. Given our findings on the
28 liability and quantum issues, we agree. We reverse the trial court judgment in this
regard and tax all costs of court to the defendants.
DISPOSITION
For the foregoing reasons, we reverse that portion of the trial court’s December
10, 2008 judgment that reduced the monetary award in favor of Laura Cox Brown by
fifty percent. We affirm those portions of the judgment finding sole fault on the part
of Caroline E. Lambert and awarding $26,000.00 in past medical expenses to the
plaintiffs, Laura Cox Brown and C. Linzay Brown. We amend the judgment to award
the plaintiffs $250,000.00 in general damages; $80,126.00 in future medical
expenses; $149,429.00 in loss of earning capacity; and $25,000.00 for Mr. Brown’s
loss of consortium. We also reverse that portion of the judgment taxing the Browns
with court costs and tax the defendants, Caroline Lambert and Shelter Mutual
Insurance Company, with all costs of court, including costs of this appeal.
AFFIRMED IN PART, REVERSED IN PART, AMENDED IN PART, AND RENDERED.