STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
04-988
MICHELLE DETRAZ
VERSUS
VICTOR LEE D/B/A VIRGIN NAILS
********** APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 20026019 HONORABLE HERMAN C. CLAUSE, DISTRICT JUDGE
********** ULYSSES GENE THIBODEAUX CHIEF JUDGE **********
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, Michael G. Sullivan, Billy Howard Ezell, and James T. Genovese, Judges.
SULLIVAN, J., DISSENTS FOR THE REASONS ASSIGNED BY JUDGE GENOVESE.
GENOVESE, J., DISSENTS AND ASSIGNS WRITTEN REASONS.
REVERSED AND RENDERED.
Philip Stephen Aucoin, Jr. Stacy S. Lee 400 East Kaliste Saloom Road - Suite 1400 Lafayette, LA 70508 Telephone: (337) 291-1743 COUNSEL FOR: Defendants/Appellees - Bechin Huynh and Bechin Huynh, d/b/a Virgin Nails
Chris Paul Villemarette Scott M. Hawkins Hawkins, Garbin & Villemarette, LLC 102 Asthma Boulevard - Saloom III Suite 110 Lafayette, LA 70508 Telephone: (337) 233-8005 COUNSEL FOR: Plaintiff/Appellant - Michelle Detraz THIBODEAUX, Chief Judge.
In this negligence action, Melissa Detraz appeals a judgment entered
pursuant to a jury verdict denying her petition for damages for scars resulting from
an infection contracted during a pedicure at Virgin Nails, a nail salon. She argues the
jury incorrectly concluded that, despite Virgin Nails’ inadequate sterilization
procedures, their negligence did not cause an infection in her legs. Because Ms.
Detraz has proven causation, we reverse the judgment and assign damages of
$79,380.00 for the cost of future surgeries and $50,000.00 in general damages.
I.
ISSUES
Ms. Detraz argues the jury erred when it concluded that, although Virgin
Nails negligently failed to sanitize its pedicure equipment, their negligence did not
cause the staph infection Ms. Detraz contracted that left disfiguring scars on her legs.
Ms. Detraz urges that the jury failed to weigh properly the testimony of Dr. Darrell
Henderson regarding the causal link between the unsanitary pedicure and her staph
infection.
Ms. Detraz also appeals the trial court’s refusal to honor the jury’s
request to review certain testimony after deliberations began. Additionally, she
asserts that the presence of an alternate juror in the deliberation room after the jury
retired corrupted the deliberation process, making a new trial necessary. Finally, Ms.
Detraz also filed a motion to make an audiotape of certain testimony part of the
record. Because we conclude the jury erred with respect to causation and reverse
their verdict, we do not address these issues.
1 II.
FACTS
Melissa Detraz received a pedicure at Virgin Nails on September 23,
2002.1 That morning, she shaved her legs as usual but recalled scratching the back
of her right leg. Before she sat down in the pedicure chair vacated by the previous
client, Ms. Detraz observed the nail technician spray the whirlpool tub attached to the
chair and wipe it clean, a process that took about ten or fifteen seconds. As part of
the pedicure, Ms. Detraz immersed her bare legs into a tub of water approximately
halfway up her calf. The technician then trimmed and shaped her nails and cuticles.
The technician applied new nail polish and massaged Ms. Detraz’s legs. The
pedicure took about forty-five minutes. Ms. Detraz testified she felt no pain or injury
to her toes during the pedicure. Within two days of receiving the pedicure, she
noticed a red, tender bump on the back of her right leg in an area that corresponded
to the place where she had cut herself while shaving the day of the pedicure. The red
bump quickly multiplied, turning into oozing sores which did not resolve, despite her
efforts to care for them and clean them herself.
Ms. Detraz went to the Medical Center of Southwest Louisiana
emergency room on October 22, 2002. The triage nurse asked her numerous
questions, such as whether she went hiking, whether she had ever had a pedicure, and
whether she tanned. The nurse, however, noted in Ms. Detraz’s chart only that
“Unaware if from tanning bed or fungus.” Ms. Detraz testified that, although she
admitted to the ER nurse she had used tanning beds in the past, she did not tell the
nurse she thought she had contracted the infection from a tanning bed. In fact,
1 Although Virgin Nails makes much of Ms. Detraz’s inconsistent deposition testimony regarding the date of the pedicure, by the time of trial the date was clearly established. Ms. Detraz refreshed her recollection of the date of the pedicure based on a check payable from her account to Virgin Nails, bearing her signature and endorsed by Bechin Huynh. The check is dated September 23, 2002.
2 according to her testimony, she had not used a tanning bed in five to six months
before her pedicure. The ER told Ms. Detraz she had contracted a fungus, but
prescribed Nystatin, which is a yeast medication.
Despite the medication, there was no improvement and the infection
continued to spread. On November 1, 2002, Ms. Detraz visited Dr. Ronald Daigle,
a dermatologist. Although he attempted to culture the infection, no bacteria grew
from the sample and he was unable to clinically confirm his diagnosis. He prescribed
Bactrim and Omincef which are used to treat staph infections. Ms. Detraz responded
to the antibiotics and her symptoms began to resolve. However, the sores had caused
serious scarring on her legs. Ms. Detraz next went to Dr. Adrian Stewart. Dr.
Stewart could not identify the derivation of her infection, but discouraged surgery for
the scars.
Finally, Ms. Detraz sought treatment from Dr. Darrell Henderson, a
plastic surgeon, on April 16, 2003. Dr. Henderson took a complete medical history
concerning the pedicure. He informed Ms. Detraz that her scars were permanent and
would require several surgeries to correct. Ms. Detraz sued Virgin Nails for damages,
arguing that its failure to properly clean the pedicure equipment caused her staph
infection and subsequent scarring. During trial, Ms. Detraz presented the jury with
evidence that Virgin Nails did not follow appropriate procedures for sanitizing its
equipment before each pedicure. After a trial on the merits, a jury concluded that
Virgin Nails had been negligent in its administration of its pedicure procedures, but
its negligence had not caused Ms. Detraz’s injuries. Ms. Detraz appeals.
3 III.
LAW AND DISCUSSION
The Louisiana Supreme Court delineated the standard for assessing
liability for damages caused by a party’s negligence in its decision in Fowler v.
Roberts, 556 So.2d 1 (La.1989). In that opinion, the court stated:
The determination of liability in a negligence case usually requires proof of five separate elements: (1) proof that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) proof that the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) proof that the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (4) proof that the defendant’s substandard conduct was a legal cause of the plaintiff’s injuries (the scope of liability or scope of protection element); and (5) proof of actual damages (the damages element).
Id. at 4.
Thus, to determine liability for negligence, a party must undertake this duty/risk
analysis. In this case, the salient issue is whether Virgin Nails’ negligent breach of
its duty to customers to control the risk of infection caused Ms. Detraz’s infection and
subsequent scarring.
Ms. Detraz demonstrated that Virgin Nails did not follow proper
sanitization procedures when cleaning its equipment, specifically the pedicure tub in
which Ms. Detraz immersed her feet and lower legs during the pedicure. Virgin Nails
used Barbicide, a disinfectant, to clean the whirlpool tubs attached to the pedicure
chairs. The directions on the Barbicide bottle require the user to prepare a solution
of two ounces of Barbicide to thirty-two ounces of water and thoroughly wet all
surfaces with the mixture. The instructions require that the surface remain wet for ten
minutes, and then be allowed to air dry. Alternatively, the user may soak the item in
the Barbicide solution. Actually soaking the tub in solution is not practical, because
4 the tub is attached to the pedicure chair, so the operators must drench the surfaces of
the tub with the Barbicide solution for ten minutes, and then permit the wet surface
to dry in order for it to be effective.
Bechin Huynh and Bon Huynh, the operators of Virgin Nails, provided
inconsistent testimony about the procedures they followed to clean the pedicure tubs.
For example, Ms. Huynh testified that she sprays the tub with Barbicide, then again
with clean water, and wipes it down with a clean towel. She testified that she leaves
the Barbicide solution on the tub surface for ten minutes. During her deposition,
however, she stated that she only sprayed and wiped the surface of the tub, without
allowing the solution to sit on the surface for ten minutes. She also testified she did
not “soak” the surface of the tub.
The directions also require permitting the wet surface to air dry after
being thoroughly wet for ten minutes. While Ms. Huynh claimed that she does permit
the tub surface to air dry, she also testified that the surface was sprayed with clean
water and then wiped dry after only five or ten minutes.
Mr. Huynh further explained that, to clean the tub between customers,
the technician sprays Barbicide on the tub just before the end of each customer’s
pedicure, when her feet are removed and the water drained from the tub. The
technician then massages the customer’s legs and paints her toenails, which takes
between ten and fifteen minutes. She then finishes cleaning the tub by rinsing the tub
with clean water and wiping it with a clean towel. Mr. Huynh also admitted that he
prepares a stronger Barbicide solution than necessary, assuming that a stronger
solution would be more effective.
Kathy Arceneaux, a licensed cosmetologist for twenty years, was
admitted as an expert in cosmetology. She read from a standard cosmetology
5 textbook, used to educate cosmetology students regarding guidelines for use of
disinfectants. The text admonished that “disinfectants must always be used in strict
accordance with manufacturer’s instructions” and noted specifically that “mixing
chemicals stronger than recommended by the manufacturer counteracts their
effectiveness” and might be dangerous at higher concentrations. The text continued:
“Such variables as mixing precautions and exposure times demand particular
attention.” Ms. Arceneaux testified that, in her expert opinion, mixing the chemical
stronger than manufacturer recommendations was ill-advised, and failure to follow
the manufacturer’s instructions could render the product ineffective. Thus, the salon
operators’ testimony demonstrates that they did not strictly adhere to the Barbicide
instructions as to solution strength, exposure time, and drying procedure. The jury’s
finding of negligence in a case where the defendant’s responsibility was to provide
a clean environment for nail care customers can only be construed to mean they found
Virgin Nails’ sanitization procedures inadequate.
The Jury Verdict Form asked the jury whether Virgin Nails was
negligent in performing the pedicure. The jury answered in the affirmative.
Answering this question in the affirmative, however, enfolds all five of the Fowler
factors, including causation. The next Verdict Form question, however, asked the
jury whether this negligence caused Ms. Detraz’s injuries. The jury answered in the
negative. Given their response to the first question on negligence, the jury’s response
on causation is counterintuitive. Because the Jury Verdict Form is awkwardly
worded using the comprehensive word negligence, the crucial question is causation.
Ms. Detraz asserts the Housley presumption as the basis of her proof of
causation. The Housley presumption derives from the Louisiana Supreme Court case
Housley v. Cerise, 579 So.2d 973 (La.1991), in which the court determined:
6 A claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.
Id. at 980 (quoting Lucas v. Ins. Co. of N. Am., 342 So.2d 591 (La.1977)).
Thus, a plaintiff is entitled to a presumption of causation if she establishes the
elements of Housley. In Juneau v. Strawmyer, 94-903 (La.App. 4 Cir. 12/15/94), 647
So.2d 1294, 1299, the fourth circuit described the three requirements for the
application of Housley:
First, he must prove he was in good health prior to the accident at issue. Second, he must show that subsequent to the accident, symptoms of the alleged injury appeared and continuously manifested themselves afterwards. And third, he must demonstrate through evidence – medical, circumstantial, or common knowledge – a reasonable possibility of causation between the accident and the claimed injury.
Id. at 1299.
Virgin Nails claims that Ms. Detraz did not show she was healthy before
the pedicure; however, it does not offer any medical records that show otherwise.
There is no evidence that Ms. Detraz suffered any dermatological infections prior to
the event. None of the three doctors testified that Ms. Detraz had divulged any prior
medical condition, such as allergies, skin infections, or injuries to her legs. In fact,
Dr. Henderson testified that, besides the scars, her skin was free of imperfections.
Additionally, Ms. Huynh testified that she would not have permitted someone with
symptoms like those of Ms. Detraz to receive a pedicure at Virgin Nails. Therefore,
Ms. Detraz did not have these symptoms on or before September 23, 2002, the date
of the pedicure. Finally, Ms. Detraz and her mother testified that this condition
7 developed after the pedicure, and not before. Defendants suggest that Ms. Detraz’s
testimony and that of her mother is self-serving and, therefore, insufficient to show
that she did not suffer from any medical conditions before the staph infection. Courts
have rejected self-serving testimony in cases where the testimony is uncorroborated,
or other evidence contradicts the substance of the testimony. Dubriel v. Horseshoe
Entertainment, 34,885 (La.App. 2 Cir. 8/22/01), 793 So.2d 459. In this case,
however, Ms. Detraz’s testimony is both corroborated and uncontradicted. Therefore,
Ms. Detraz has satisfied the first requirement of Housley.
The second element of Housley requires that the symptoms of the alleged
injury appear subsequent to the accident and continuously manifest themselves
afterwards. In Whiteman v. Worley, 96-305 (La.App. 4 Cir. 2/19/97), 688 So.2d 207,
writ denied, 97-966 (La. 5/30/97), 694 So.2d 246, the fourth circuit declined to find
causation based on Housley. The court reasoned that the plaintiff’s eye infection did
not manifest until ten days after she was hit in the eye with a pen and that there was
“much less of the ‘close temporal relationship’ . . . between accident and symptoms.”
Whiteman, 688 So.2d at 211. In contrast, in Lindsey v. USAA Property & Casualty
Insurance Co., 02-797, p. 8 (La.App. 4 Cir. 10/9/02), 830 So.2d 335, 339, the court
credited a car accident victim’s statement that “the injury was objectively apparent
to him immediately after the accident.” The victim testified he felt a sharp and
persistent pain in his neck and back the day after the accident. The pain had not
resolved by the time of trial. The defendant in Poland v. State Farm Mutual
Automobile Insurance Co., 03-1417 (La.App. 1 Cir. 6/25/03), 885 So.2d 1144, argued
that the plaintiff could not use Housley to establish causation since she waited 137
days after the accident before she sought treatment. The court disagreed, observing
that the plaintiff and three witnesses testified that her symptoms manifested within
8 days of the accident. Plaintiff’s testimony that she had symptom-free days was not
inconsistent with “continuous manifestation” of the injury, particularly because her
symptoms never completely resolved. Finally, the court concluded that her “failure
to seek medical treatment for several months does not preclude the possibility that she
was, in fact, injured, and in pain.” Id. at 1150-51. In contrast, in Morris v. Allstate
Insurance Co., 25,148 (La.App. 2 Cir. 2/23/94), 632 So.2d 1209, writ denied, 94-
1044 (La. 6/17/94), 638 So.2d 1099, the court found that the victim of a car accident
did not continuously manifest symptoms because, when she did visit her doctor, she
did not complain of pain or symptoms. Furthermore, later medical reports did not
show she told her doctors she had experienced intermittent back pain since the
accident. Id.
Virgin Nails argues that the infection lacks a close temporal relationship
to the pedicure because Ms. Detraz waited a month to seek medical treatment. In
Poland, 885 So.2d 1144, however, the first circuit held that a several month delay in
seeking treatment did not undermine the Housley presumption. Here, as in Poland,
885 So.2d 1144, Ms. Detraz’s symptoms manifested within two to three days of the
pedicure. Additionally, she testified she did not obtain treatment because she was
attempting to treat the infection herself with over-the-counter medication. When she
did seek medical attention, she went to several doctors with the same complaint.
Morris, 632 So.2d 1209. Ms. Detraz never had symptom-free days. Her symptoms
manifested within two to three days of the pedicure, and lasted continuously as an
active infection until late November 2002, after which they became scars.
The final prong of Housley requires Ms. Detraz show there was a
reasonable possibility, not probability, Virgin Nails’ negligent sanitization procedures
caused the staph infection. Ms. Detraz may rely on various evidence, including
9 medical and lay testimony, as well as circumstantial evidence, to establish causation.
Juneau, 647 So.2d 1294. A precise medical diagnosis is not necessary for plaintiff
to carry this burden. The medical evidence must show that “the nature of the
accident, when combined with other facts of the case, raises a natural inference
through human experience that such a causal connection exists.” Lubom v. L. J.
Earnest, Inc., 579 So.2d 1174, 1179 (La.App. 2 Cir. 5/8/91). In Hall v. Folger Coffee
Co., 02-920 (La.App. 4 Cir. 10/1/03), 857 So.2d 1234, all three doctors who testified
concluded that the plaintiff’s injuries were consistent with his description of the
accident. Defendant “emphasized the doctors’ failure to recite that it is more probable
than not that [plaintiff]’s injuries were caused by the trauma suffered in the accident.”
Id. at 1248. The court quoted Housley’s holding that “it is not necessary for the
plaintiff’s medical witness to recite the proper legal jargon verbatim before the trial
court can properly rely on his testimony.” Id. at 1248-49 (quoting Housley, 579
So.2d at 980). The Hall decision concluded that the doctors’ affidavits, in
conjunction with the plaintiff’s testimony, were sufficient evidence to establish
causation via Housley.
In contrast, Gage v. Potts, 94-1542 (La.App. 1 Cir. 4/7/95), 653 So.2d
1183, declined to find causation based on Housley. The plaintiff, a pregnant woman,
argued that an accident caused her to go into labor two months afterwards and suffer
serious complications. The medical experts all agreed on an alternate cause of the
injury: the plaintiff had suffered from an infection known to trigger early labor.
Additionally, they all agreed that it was not reasonably possible for an accident to
cause labor two months later. Similarly, in Whiteman v. Worley, 688 So.2d 207, the
medical evidence showed it was highly unlikely the plaintiff contracted a Chlamydia
infection in her eye from a pen that bumped into her eye. The medical testimony
10 strongly held that Chlamydia is transmitted through sexual contact, and any other
mode of transfer would be extraordinarily unusual.
In Arceneaux v. Howard, 633 So.2d 207 (La.App. 1 Cir. 1993), writ
denied, 93-3128 (La. 2/11/94), 634 So.2d 833, the third circuit sustained the Housley
presumption of causation despite medical testimony that the court itself admitted was
not ideally certain. Plaintiff suffered injuries in a car accident and was taken to the
emergency room. His car was totaled and the impact was strong enough to break his
seat belt. Plaintiff evidently hit his head during the crash, but did not display
symptoms of injury to the front of his head. Ten days after the accident, the plaintiff
began to suffer seizures. The court held:
In this case, none of the neurologists could state with any degree of certainty that he considered the accident to be a contributing factor in causing the seizures. However, all three based their opinion on an assessment of the seriousness of the accident as related by plaintiff. All three doctors agreed that head injuries can cause subsequent onset of seizures, but were of the impression that plaintiff’s accident was relatively minor and not the type which triggered seizures.
....
The medical records from the accident are sufficient to establish a reasonable possibility that plaintiff’s seizures were caused by the accident. The first seizure occurred only ten days after the impact and followed a continuous period of disorientation . . . , which began with the accident. A ten-day delay prior to the onset of the first seizure does not mean the seizure was not caused by the accident. . . . Although plaintiff presented no medical evidence to show that the type of impact to his head generally was a type of injury which would cause seizures, we do not find this fatal to his prima facie case. We believe plaintiff has met the minimal standard of a ‘reasonable possibility,’ such that a prima facie case was established and he should have been given the benefit of the legal presumption stated in Housley.
Id. at 210-11 (emphasis added).
11 The court drew on a wide variety of evidence, including medical evidence from the
neurologists and the emergency room report, practical evidence, such as accident
reports describing the nature of the collision, and the plaintiff’s own history of the
injury and subsequent seizures, to conclude that the plaintiff had proven causation
under the Housely presumption. Even though none of the physicians was willing to
state that the collision caused the seizures, the court found that the evidence in
aggregate was sufficient to conclude there was a reasonable possibility the accident
had caused the plaintiff’s seizures.
Ms. Detraz presented medical testimony from Dr. Darrell Henderson, a
licensed plastic surgeon. Defendants initially had attempted to exclude Dr.
Henderson’s testimony before trial. This motion, however, was denied and Dr.
Henderson was accepted as an expert, without any limits on issues on which he could
render his expert opinion. Defendants did not appeal the denial of their motion.
Therefore, Dr. Henderson is properly qualified to render an expert opinion on
causation. He testified that, based on the history provided to him by Ms. Detraz, the
unsanitized pedicure tub was the cause of the infection. He constructed a timeline,
beginning with Ms. Detraz shaving the morning of the pedicure. The shave created
many nicks and cuts. When she immersed her legs in the unsanitary bath, the water
introduced bacteria into these tiny wounds, resulting in her infection. She began
manifesting symptoms within two to three days of exposure, which Dr. Henderson
believed represented the incubation period for the bacteria in her system. Dr.
Henderson felt it was significant that the only areas affected by the infection were the
areas that were both shaved and exposed to the water, which explained why her feet
did not suffer any infection. He also testified that, in his practice, he had experience
treating patients who had contracted infections from pedicures.
12 Dr. Stewart and Dr. Daigle, in contrast, were unwilling to testify as to
causation. They both agreed that it was possible that a customer could contract an
infection from an improperly sanitized tub. However, because staph bacteria is
ubiquitous in the environment, a staph infection could be caused by many different
things. While they were unwilling to adopt Dr. Henderson’s position, they would not
reject it. Dr. Daigle, for instance, admitted that it was possible to draw a temporal
relationship between Ms. Detraz’s exposure to the bacteria and her later symptoms,
particularly in light of the fact that her legs were freshly shaved.
Dr. Henderson’s position was buttressed by other corroborating expert
testimony. Kathy Arceneaux, a licensed cosmetologist, was accepted as an expert in
cosmetology. She has been a cosmetologist for twenty years and has received
specialized training in pedicures and manicures. Ms. Arceneaux testified that, in her
expert opinion, improperly cleaning pedicure tubs can generate bacteria that could be
dangerous to clients. Additionally, Ms. Detraz introduced an article in Archives of
Dermatology, a medical journal, describing the infectious potential of improperly
cleaned manicure and pedicure equipment, including specific discussion of bacteria
discovered on improperly sanitized whirlpool tubs, such as the ones used by Virgin
Nails. She also introduced an article from Nail Pro Magazine, a nail salon trade
magazine, describing safe methods for disinfecting manicure and pedicure equipment,
including proper use of disinfectants.
After the Housley presumption has been established, “the defendant has
the burden of producing evidence to persuade the trial court that it is more probable
than not that the injury did not result from the accident.” Morris, 632 So.2d at 1211.
For example, in Seit v. Scofield, 01-1295 (La.App. 5 Cir. 2/26/02), 812 So.2d 764, the
court determined that there were plausible explanations for the victim’s back pain
13 other than an altercation that she alleged resulted in her injuries. The victim had been
in a car accident prior to the fight. Also, she weighed over 200 pounds. The court
cited these as alternative causes of her injury, preventing application of Housley.
Virgin Nails did not provide satisfactory evidence of an intervening cause that would
destroy the causal link between the pedicure and the infection. They assert that Ms.
Detraz contracted the infection from a tanning bed. They attempt to explain this
assertion by referring to the note taken by the nurse in the ER regarding possible use
of a tanning bed as the source of the infection. Ms. Detraz testified at trial, however,
that the nurse had questioned her on multiple activities, including tanning, and she
answered honestly. She also testified that it had been months since she had last
visited a tanning salon; the tanning salon could not be responsible for the infection,
since the symptoms manifested months after her last visit. Gage, 653 So.2d 1183.
Furthermore, although Dr. Stewart testified she had had some experience with
patients who contracted skin infections while at a tanning parlor, Dr. Henderson
described precisely how difficult, although clearly not impossible, it would be to
contract such an infection. He testified that in order for an infection to occur, there
would have to be precise and prolonged contact between an infected spot on the
tanning bed and an open wound on the body of the person tanning. He also noted that
a dry tanning bed could not compare to the more bacteria-friendly environment found
in a damp whirlpool tub. Given the impossible timeline and the greater ease with
which one might contract an infection from a whirlpool rather than a tanning bed,
defendants’ alternative cause is not acceptable.
In Cooper v. United Southern Assurance Co., 97-250, p. 24 (La.App. 1
Cir. 9/9/98), 718 So.2d 1029, 1041, the first circuit stated: “The issue of whether
plaintiff is entitled to the benefit of [the Housley] presumption is factual and is
14 subject to the manifest error standard of review. If the jury’s findings are reasonable
in light of the record viewed in its entirety, the court of appeal may not reverse.
Consequently, when there are two permissible views of the evidence, the fact finder’s
choice between them cannot be manifestly erroneous or clearly wrong.” See also
Dixon v. Traveler’s Ins. Co., 02-1364 (La.App. 4 Cir. 4/2/03), 842 So.2d 478.
However, the Louisiana Supreme Court has held that an appellate court
is not required to affirm the trier of fact’s refusal to accept the uncontroverted
testimony of a witness as true. Mart v. Hill, 505 So.2d 1120 (La.1987). In Mart, the
trial court committed error when it failed to award plaintiff damages because it
determined the accident did not cause plaintiff’s injury. Later cases employing Mart
have clarified its application: “Although trial court findings are accorded great
deference, appellate courts have a duty to ascertain whether those findings are
justified by the record. If an appellate court concludes that the trial court’s factual
findings are clearly wrong, the mere fact that some evidence in the record supports
the finding does not require the court to affirm.” Leale v. Dubois, 99-957, pp. 2-3
(La.App. 3 Cir. 4/5/00), 756 So.2d 684, 688 (citation omitted). The third circuit
further explained in Butler v. Zapata Haynie Corp., 92-71 (La.App. 3 Cir. 2/23/94),
633 So.2d 1274, 1279, writ granted in part and amended on other grounds, 94-1171
(La. 7/5/94), 639 So.2d 1186, cert. denied, 513 U.S. 1017, 115 S.Ct. 579 (1994):
In other words, an intermediate appellate court is not required to follow blindly the factual determinations of a trial court without discerning whether that court’s discretion in evaluating facts and credibility has been abused. Certainly, the fact finder should be accorded great latitude and discretion, but discretion must always be buttressed by sound judgment.
Id. at 1279.
The jury in this case was manifestly erroneous in concluding a lack of
15 causation. The equivocal testimony of Dr. Stewart and Dr. Daigle does not detract
from the strength of Dr. Henderson’s testimony. Their unwillingness to adopt Dr.
Henderson’s perspective is not sufficient to controvert his testimony.
Damages
Dr. Henderson characterized Ms. Detraz’s scars as “markedly
disfiguring.” A markedly disfiguring scar is one that can be seen easily across a
room. There are twenty-two scars of varying size and depth, some as deep as two to
three millimeters. Dr. Henderson testified there was a dramatic change of coloration
between the scars and the surrounding skin. He also noted that, otherwise, Ms.
Detraz’s skin was perfect in texture, color, and consistency. Because the scars are
depressed, Ms. Detraz cannot effectively cover them with cosmetics. Therefore,
surgery is the most appropriate solution to resolve her scars.
The shape and number of scars will necessitate complicated and
extended surgeries. After surgery, she will need a leg brace extending from the thigh
to the knee to immobilize her leg, and she will have to give up sports or running.
Therefore, one leg will have to be treated at a time, otherwise Ms. Detraz would be
entirely unable to walk. She will require approximately six surgeries over the course
of several years to treat all of her scars. The surgery will not eliminate the scars
entirely, but merely replace the round scars with linear scars. Furthermore, if elective
surgery is not undertaken now, she may need surgery on an emergency basis as she
ages if the scar tissue begins to deteriorate.
Ms. Detraz testified that the scars have impacted her self-confidence.
She no longer wears skirts or shorts, and does not visit pools or beaches. Her
employer, Pascale’s Spa, requires her to wear slacks and she is not allowed to go near
the customers. Furthermore, while she had an active infection, she was afraid to
16 touch her child for fear of passing the infection on to him.
Dr. Henderson estimated the total cost of all the surgeries would be
$79,380.00. We award Ms. Detraz all of her past and future medical expenses. Ms.
Detraz also requested $187,000.00 in general damages, a figure which represents
$8,500.00 per scar, with twenty-two scars. In reaching this sum, she relies on Moore
v. Healthcare Elmwood, Inc., 582 So.2d 871 (La.App. 5 Cir. 6/5/91) in which the fifth
circuit upheld an award of $8,500.00 for two, five-inch linear scars. Ms. Detraz
points out that Dr. Henderson testified that surgical revision of circular scars is more
difficult than of linear scars. Additionally, he described the scars as “markedly
disfiguring.” Ms. Detraz also recounted the effect the scars have had on her life, and
the difficulties she will undergo as a result of the series of surgeries. In rendering an
initial award of general damages, an appellate court is “not limited to an award of
either the lower or highest amount we would affirm. Instead, we set the award in an
amount which is just compensation for the damages revealed by the record.” Butcher
v. City of Monroe, 31,932, p. 10 (La.App. 2 Cir. 5/5/99), 737 So.2d 189, 196, writ
denied, 99-1608 (La. 9/17/99), 747 So.2d 566; Savelle v. Heilbrunn, 552 So.2d 52
(La.App. 3 Cir. 1989), writ denied, 556 So. 2d 1267 (La.1990). In De Los Reyes v.
USAA Casualty Insurance Co., 28,491 (La.App. 2 Cir. 6/26/96), 677 So.2d 668, the
second circuit reviewed a general damages award of $35,000.00 for a teenage girl
who had suffered five scars, ranging from three centimeters to twenty centimeters in
length, in addition to other injuries. She had been forced to give up a modeling job
because of the scars. The court noted that “[g]eneral damages involve mental or
physical pain and suffering, inconvenience, the loss of intellectual gratification or
physical enjoyment, or other losses of life or lifestyle which can not be definitively
measured in monetary terms.” Id. at 672. Similarly, in McBride v. State Farm
17 Mutual Auto Insurance Co., 01-954 (La.App. 5 Cir. 3/26/02), 815 So.2d 249, writs
denied, 92-1484 (La. 9/24/02), 825 So.2d 1182; 02-1639 (La. 9/24/02), 825 So.2d
1183, the fifth circuit upheld a damages award of $75,000.00 to a victim in a car
accident who, in addition to serious internal injuries, suffered disfigurement and
permanent scars on his face. Finally, in Neason v. Transit Management of Southeast
Louisiana, Inc., 00-1271, p. 6 (La.App. 4 Cir. 4/18/01), 789 So.2d 31, 35, the fourth
circuit awarded an eight year old child $20,000.00 in general damages for “permanent
prominent facial scars” caused in an accident.
Although Ms. Detraz bears serious cosmetic effects from the infection she
contracted at Virgin Nails, she has suffered no lasting medical effects from the
infection. We feel general damages award of $50,000.00 is reasonable and adequate.
IV.
CONCLUSION
For the above reasons, the trial court’s verdict is reversed. We award
$50,000.00 in general damages and $79,380.00 for the cost of future surgeries. Costs
of appeal are assessed to appellee Virgin Nails.
18 STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
VICTOR LEE d/b/a/ VIRGIN NAILS
GENOVESE, J., dissenting.
I find no manifest error in the jury verdict and must respectfully disagree with
the majority as to the issue of causation.
The jury’s findings in this case are reasonable in light of the review of the
record in its entirety. Though there are two permissible views of the evidence, the
jury’s choice between them cannot be considered manifestly erroneous or clearly
wrong, nor is this court allowed to simply substitute its view for that of the jury.
Though the jury found negligence in this case, it did not find legal causation, nor did
Dr. Stewart or Dr. Daigle, the only two dermatologists who testified at trial. The
majority in this case reverses a jury verdict based on the testimony of a plastic
surgeon who never saw, nor treated Plaintiff’s infection, who is not a dermatologist,
and who did not even examine the Plaintiff until approximately seven months post
infection. I respectfully dissent and would affirm the jury verdict.