Ober v. Champagne

166 So. 3d 254, 14 La.App. 5 Cir. 170, 2014 La. App. LEXIS 3004, 2014 WL 7184044
CourtLouisiana Court of Appeal
DecidedDecember 16, 2014
DocketNo. 14-CA-170
StatusPublished
Cited by3 cases

This text of 166 So. 3d 254 (Ober v. Champagne) 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
Ober v. Champagne, 166 So. 3d 254, 14 La.App. 5 Cir. 170, 2014 La. App. LEXIS 3004, 2014 WL 7184044 (La. Ct. App. 2014).

Opinion

ROBERT A. CHAISSON, Judge.

|aGreg Champagne, Sheriff of St. Charles Parish, et al, appeal a judgment in favor of Donald M. Ober, III, Lacie Ober, and them two minor children, in this motor vehicle accident case. For the following reasons, we affirm the JNOV rendered in favor of Donald M. Ober, III, but reinstate the jury verdicts as to Lacie Ober and the two minor children.

FACTS AND PROCEDURAL HISTORY

The facts of the accident need not be given in detail as liability was established by stipulation. It is sufficient only to point out that Mr. Ober’s stopped pick-up truck was rear-ended by a sheriffs cruiser involved in a high speed chase.

It was established at trial that Mr. Ober suffered a number of injuries traceable to the accident of May 4, 2010. Immediately after the accident he was taken to St. Charles Parish Hospital, where he complained of head, chest and back pain. He was then transported to Ochsner Medical Center with continuing back pain. On May 31, 2010, he saw Dr. Christopher Cenac, an orthopaedic surgeon, who diagnosed him with a herniated L4-5 disc and a SLAP tear.1 An MRI performed a month later confirmed the disc herniation. Dr. Cenac originally recommended that he see Dr. Mitchell Brian, a chiropractor. After several treatments, Dr. Brian referred him to an orthopedist for surgical repair of the SLAP tear. He was subsequently seen by Dr. Brian Soulie for physical therapy. He was |4next referred to Dr. Michael Haydel, a pain specialist, who [257]*257treated him for back pain with epidural injections. Dr. Haydel noted back pain radiating into the hip and lower extremities. When the pain continued in spite of the injections, Dr. Haydel sent him back to Dr. Cenac.

Dr. Cenac performed a L4-5 microdis-cectomy, which provided some relief. However, the back pain continued and Dr. Cenac described this condition as chronic. It was Dr. Cenac’s further opinion that Mr. Ober would either learn to live with the pain or undergo a spinal fusion cage surgery. He also stated that even if this later surgery were to alleviate the pain, Mr. Ober would still not be able to return to work as a pipefitter or as a commercial fisherman.2

Mr. Ober returned to Dr. Haydel, who confirmed that scar tissue from the spinal surgery was impinging on the nerves and causing pain. His opinion was that Mr. Ober will never be symptom free, and will probably remain on a regimen of substantial pain medication, including hydroeo-done, for the foreseeable future. He also stated that Mr. Ober would never work as a pipefitter or fisherman again.

Dr. Neil Baum, a urologist, was called by the defense, and testified that although Mr. Ober did have erectile dysfunction, it was not caused by any physical problem, but was probably due to medications, high blood pressure, smoking, depression and pain disorder. He also testified that there was no evidence that the erectile dysfunction existed before the accident, but had only manifested itself afterwards.

Dr. Monroe Laborde, an orthopedic surgeon, was also called by the defense. Dr. Laborde was of the opinion that Mr. Ober’s disc problems were not related to the accident, but were simply the result of the aging process. He also thought that | ¡¡Mr. Ober’s pain was non-organic in nature and caused by depression, consulting an attorney and taking narcotics. He recommended that Mr. Ober undergo a work-hardening program and vocational rehabilitation. He further opined that any pains more than six months post-accident were psychological, rather than physical.

Mr. Ober was also examined by Dr. Kevin Bianchini, a clinical psychologist and neuropsychiatrist, who was of the opinion that after the accident, Mr. Ober became depressed and suffered from post-traumatic stress disorder (PTSD). Dr. James Sig-rist3 a psychiatrist, also testified that Mr. Ober developed urinary hesitancy, anxiety disorder, major depressive disorder, and a general inability to enjoy life because of the injuries and resulting financial strain. While he thought that by the time of trial the depression was in remission, he still saw symptoms of PTSD. Trevor Bardar-son, a physical therapist who did a physical capacity evaluation, concluded that Mr. Ober could perhaps perform light duty work, but because of his ninth grade education and his work experience, he was essentially disabled from any work in pipe-fitting or commercial fishing. Mr. Bardar-son also suggested that a work-hardening program might be beneficial.

The defendants also established that Mr. Ober was involved in a second automobile accident on May 22, 2012, about two years after the one at issue here. Dr. Haydel was not told of this accident, but he observed that since Mr. Ober’s condition was the same before and after that second [258]*258accident, he did not see any evidence of a second injury. Dr. Cenac similarly saw no difference in an MRI done on' July 21, 2011, prior to the second accident, and a second MRI done on April 8, 2013, after that accident.

Mr. Ober testified that he is in pain fairly constantly, suffers from erectile dysfunction, which has negatively affected his marriage, and has been depressed, | ^anxious, and irritable, in part because of the pain and in part because of his inability to earn a living. Lacie Ober, his wife, corroborated this testimony and added that he yells at the children and is distant with both her and the children. She further testified that she has to assist her husband in routine things like bathing and putting on shoes and socks.

Based on the above evidence, the jury returned what were actually four verdicts: one each for Mr. Ober, Mrs. Ober, and the two minors, Braxton and Brandon. The trial judge determined that the verdict in Mr. Ober’s favor was inconsistent in that it awarded future medicals and future lost wages, but no future pain and suffering. She further found that the awards to Mrs. Ober and the two children for loss of consortium were abusively low. She therefore entered a JNOV in favor of all plaintiffs. The chart below shows the amounts fixed by the jury, and those fixed in the JNOV.

DONALD OBER, III

JURY JNOV

Past Medical Expenses $ 112,000 $ 112,000

Future Medical Expenses $130,000 $130,000

Past Wage Loss $ 32,000 $ 32,000

Future Wage Loss $115,000 $115,000

Past Physical Pain & Suffering $ 20,000 $110,000

Future Physical Pain & Suffering -0-$80,000

Past Mental Pain & Suffering $ 10,000 $25,000

Future Mental Pain & Suffering -0-$25,000

Physical Disability, Past, Present & Future $ 10,000 $50,000

Loss of Life’s Enjoyment $ 10,000 $50,000

TOTAL AWARD $439,000 $729,000

JjLACIE OBER

Loss of Consortium ; 25,000 $ 50,000

BRAXTON OBER (14 yrs. old)

Loss of Consortium $ 10,000 ; 25,000

BRANDON OBER (11 yrs. old)

Loss of Consortium $ 10,000 $25,000

As the chart shows, the amounts for special damages, ie., past and future medicals and past and future wage losses, are the same in the jury verdict and in the JNOV. All of the differences between the two judgments are found in the amounts for general damages. Additionally, the amounts shown in the jury verdict included a 15% reduction for all damages to Mr.

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166 So. 3d 254, 14 La.App. 5 Cir. 170, 2014 La. App. LEXIS 3004, 2014 WL 7184044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ober-v-champagne-lactapp-2014.