Mixter v. Wilson

54 So. 3d 1164, 10 La.App. 5 Cir. 464, 2010 La. App. LEXIS 1722, 2010 WL 5093377
CourtLouisiana Court of Appeal
DecidedDecember 14, 2010
Docket10-CA-464
StatusPublished
Cited by9 cases

This text of 54 So. 3d 1164 (Mixter v. Wilson) 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
Mixter v. Wilson, 54 So. 3d 1164, 10 La.App. 5 Cir. 464, 2010 La. App. LEXIS 1722, 2010 WL 5093377 (La. Ct. App. 2010).

Opinions

SUSAN M. CHEHARDY, Judge.

|2On appeal, Ms. Mixter seeks review of the trial court’s award of general damages. For the following reasons, we amend and affirm as amended.

Facts and Procedural History

On April 23, 2008,1 Ms. Mixter was in a motor vehicle accident, in which her vehicle was rear-ended by a vehicle driven by Mr. David Wilson. At that time, Mr. Wilson was insured by defendant, Allstate Insurance Company (“Allstate”).

Later, on the evening of April 23, 2008, Ms. Mixter presented to Ochsner Foundation Hospital Emergency Room with complaints of injuries from the motor vehicle accident. That evening, Ms. Mixter was diagnosed with and treated for neck strain and contusions of the knee and chest wall.

[1167]*1167On April 26, 2008, Ms. Mixter presented for treatment with a chiropractor, Dr. Robert R. Dale, complaining of cervical and upper thoracic pain, muscle spasms, stiffness, headaches, lumbosacral pain, bilateral sacroiliac joint pain, and shoulder and hip pain. After examination, Dr. Dale diagnosed Ms. Mixter with | ^cervical sprain/strain, lumbosacral sprain/strain, muscle spasm, knee bursitis, and shoulder bursitis, among other things. Ms. Mixter continued treatment with Dr. Dale for injuries received in the instant accident through January 6, 2009.

On July 1, 2008, Dr. Dale reported that Ms. Mixter was still experiencing pain in her neck, arm, and shoulder. Dr. Dale sent Ms. Mixter for a MRI of the cervical spine on July 25, 2008. Dr. Daniel Johnson, radiologist, interpreted the images finding “central posterior and slightly downward herniation of C3-4 disc; left posterolateral projection of disc and spurring at C4-5 disc ...; broadly based slender posterior and downward herniation of C5-6 disc; and 1-2 mm posterior bulging of C6-7 disc.”

On August 25, 2008, Ms. Mixter filed suit against David Wilson and his insurer, Allstate, for damages resulting from injuries that she received in the accident. Also, that same month, Ms. Mixter was referred by her attorney for treatment by Dr. Vaclav Hamsa.

Dr. Hamsa, an orthopedic surgeon, diagnosed a “cervical discogenic sprain with a disc rupture at C4-5, C5-6: traumatic disc bulge at C6-C7 ...” in Ms. Mixter. Dr. Hamsa treated her conservatively with anti-inflammatory medication, pain medication, and muscle relaxants. Dr. Hamsa continued treatment through the end of the year with no decrease, however, in the cervical pain. Dr. Hamsa, thereafter, referred Ms. Mixter to Dr. Fred DeFran-cesch, a physical medicine and rehabilitation specialist.

On December 30, 2008, Ms. Mixter presented to Dr. DeFrancesch who diagnosed, among other things, “facet disorder; disc disorder; radiculitis in the right the[sie] C5-6 distribution; and low back pain.” Dr. DeFrancesch performed a series of three cervical epidural injections, which alleviated Ms. Mixter’s pain.

|40n January 19, 2009, Ms. Mixter returned to Dr. Hamsa, who opined that the trauma of the instant accident caused impairment of her spine, including 8% for the disc ruptures at C4-5 and C5-6, 2% for the traumatic disc bulge at C6-7, and 1% for the recurrent soreness of the lumber spine. Further, he opined that the right shoulder continued to exhibit impairment totaling 8%, which would equal 3% impairment of her right arm. In total, Dr. Hamsa attributed an 11% whole man impairment of the spine to the accident in question and 3% whole man impairment of the right arm.

On January 4, 2010, the bench trial was held. At trial, the parties stipulated that plaintiffs’ damages did not exceed the policy limits of $50,000.00. Further, the parties stipulated to the introduction of plaintiffs medical bills in globo, the introduction of a certified copy of the Allstate automobile liability insurance policy in effect on the day of the accident, and, finally, the report from defendant’s orthopedic surgeon, Dr. Cazale, reviewing Ms. Mix-ter’s medical records in connection with this accident. Finally, Ms. Mixter testified as to her injuries, her pain level, her treatment, her physical limitations, and her ongoing pain.

At the close of trial, the judge took the matter under advisement. On February 4, 2010, the trial court rendered its decision in favor of the plaintiff, Ms. Mixter, and, relying on Candy Jean Day v. Silver Oak [1168]*1168Cas., Inc., 28,566 (La.App. 2 Cir. 8/21/96), 679 So.2d 486, 491, awarded $9,000.00 for pain and suffering and $10,876.96 for past medicals.

Now, Ms. Mixter argues that the trial court’s award of $9,000.00 for pain and suffering is an abuse of its discretion. Specifically, Ms. Mixter points out that the trial court found that Ms. Mixter suffered damage to three cervical discs in this accident, that Ms. Mixter sought medical treatment for the pain resultant from her injuries for at least twelve months, and that Ms. Mixter suffered with an 11% | ¡impairment after this accident, yet determined that the range of general damages fell between $3,000.00 and $14,000.00. Ms. Mixter contends that the trial judge’s award was manifestly erroneous. We agree.

General damages are those that may not be fixed with pecuniary exactitude; instead, they “involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms.” Duncan v. Kansas City S. Ry. Co., 00-0066 (La.10/30/00), 773 So.2d 670, 682-83(quoting Keeth v. Dep’t. of Pub. Safety & Transp., 618 So.2d 1154, 1160 (La.App. 2 Cir.1993)). In appellate review of general damage awards, the court must accord much discretion to the trial court judge or jury. La. C.C. art. 2324.1; Reck v. Stevens, 373 So.2d 498 (La.1979).

The role of an appellate court in reviewing awards of general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trial court. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Because discretion vested in the trial court is “great,” and even vast, an appellate court should rarely disturb an award of general damages. Id. at 1261.

It is only when the award is, in either direction, beyond that, which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances, that the appellate court should increase or reduce the award. Id. The initial inquiry, in reviewing an award of general damages, is whether the trier of fact abused its discretion in assessing the amount of damages. Cone v. Nat’l Emergency Serv. Inc., 99-0934 (La.10/29/99), 747 So.2d 1085, 1089. Only if the reviewing court determines that the | strial court has abused its “much discretion” may it refer to prior awards in similar cases and then only to determine the highest or lowest point of an award within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976).

In the present case, the trial court found that the accident in this case caused Ms. Mixter’s “cervical/lumbosacral sprain/ strain,” which required epidural steroid injections to relieve the pain. An MRI of Ms. Mixter’s cervical spine revealed two ruptured discs and one bulging disc.

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Mixter v. Wilson
54 So. 3d 1164 (Louisiana Court of Appeal, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
54 So. 3d 1164, 10 La.App. 5 Cir. 464, 2010 La. App. LEXIS 1722, 2010 WL 5093377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mixter-v-wilson-lactapp-2010.