Oden v. Gales

960 So. 2d 114, 2007 WL 858871
CourtLouisiana Court of Appeal
DecidedMarch 23, 2007
Docket2006 CA 0946
StatusPublished
Cited by12 cases

This text of 960 So. 2d 114 (Oden v. Gales) 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
Oden v. Gales, 960 So. 2d 114, 2007 WL 858871 (La. Ct. App. 2007).

Opinion

960 So.2d 114 (2007)

Gregory ODEN
v.
James GALES, Jr. and Allstate Insurance Company.

No. 2006 CA 0946.

Court of Appeal of Louisiana, First Circuit.

March 23, 2007.

*115 Cyrus J. Greco, Matthew L. Mullins, Baton Rouge, Counsel for Plaintiff/Appellant Gregory Oden.

Anthony M. Butler, Baton Rouge, Counsel for Defendant/Appellee Allstate Insurance Company.

Before: KUHN, GAIDRY, and WELCH, JJ.

*116 GAIDRY, J.

The plaintiff-appellant, Gregory Oden, appeals a trial court judgment on a jury verdict in this personal injury action. For the following reasons, we affirm the judgment.

FACTS AND PRIOR PROCEEDINGS

This action arises from a motor vehicle accident that occurred on May 28, 2000, in Baton Rouge, Louisiana. The plaintiff, Mr. Oden, was the driver of an automobile which was struck from the rear by a following automobile operated by James Gales, Jr. The collision caused considerable damage to Mr. Oden's automobile, and he was taken by ambulance to the emergency room of Earl K. Long Medical Center.

According to Mr. Oden, the collision caused the right rear of his head to strike his headrest with considerable force, causing a bump or "big knot" and rendering him "dazed." He also experienced the onset of neck pain, which "lasted about a week." Although he did not actually lose consciousness, he testified at trial that "it seemed like [he] was about to." At the hospital emergency room, he was x-rayed, examined, and prescribed pain medication before being discharged with instructions to return for a followup examination regarding his x-ray results. The x-ray films of the skull were normal, while those of the neck revealed only mild degenerative changes of the lower cervical spine. He returned to the emergency room on May 31, 2000, and was prescribed a different medication for pain and advised to return if he experienced any further problems.

Mr. Oden did not seek further treatment until over a year later, on July 18, 2001, when he consulted John M. Boutte, Ph.D., a clinical psychologist in Slidell. At trial, Mr. Oden explained that his occupation was that of a union boilermaker, and that because of lack of available work, he was not employed at the time of the accident, had not accumulated enough work hours to maintain his health insurance through his union, and could not afford to seek further treatment after the emergency room visits. He testified that he eventually decided to consult Dr. Boutte because of memory problems and unusual physical sensations he was experiencing, as well as his concern "about starting to develop seizures" from the blow to his head. Dr. Boutte diagnosed a depressive disorder and a possible cognitive disorder, and recommended that Mr. Oden consult a psychologist in the Baton Rouge area, closer to his residence, in order to avoid long drives to Slidell.

Mr. Oden next consulted Cary D. Rostow, Ph.D., a clinical psychologist and neuropsychologist, five months later on December 20, 2001. Dr. Rostow diagnosed an adjustment disorder with mixed anxiety and depression and a pain disorder associated with those psychological factors.

After being examined by another neuropsychologist, John Bolter, Ph.D., at the request of Allstate Insurance Company (Allstate), Mr. Oden was evaluated on two occasions in September 2003 and February 2004 by a neurologist, Gerard Dynes, M.D. An MRI study of the brain and an EEG study conducted in January 2004 were both essentially normal.

Mr. Oden filed suit for damages against Mr. Gales and his liability insurer, Allstate. Mr. Gales died prior to trial, leaving Allstate as the sole defendant. Following a jury trial on June 8 and 9, 2005, at which the issue of Allstate's liability was stipulated, the jury returned a verdict in favor of Mr. Oden, awarding him $1,000.00 in general damages for pain and suffering and $800.00 for medical expenses. The trial court entered its final signed judgment on the jury verdict on February 6, *117 2006.[1] Mr. Oden now appeals.

ASSIGNMENTS OF ERROR

Mr. Oden contends that the judgment incorporating the jury verdict is in error in these respects:

1. The jury abused its discretion in awarding damages below what a reasonable trier of fact would [assess] for the effects of the injuries [sustained] by plaintiff.
2. The jury committed legal error by failing to award Mr. Oden damages for mental anguish and loss of enjoyment of life after finding Mr. Oden was injured and incurred medical expenses.

ANALYSIS

As part of his first assignment of error, Mr. Oden contends that the jury abused its discretion by awarding inadequate general damages for pain and suffering. But he also contends in his second assignment of error that the jury's refusal to make awards for "mental anguish" and "loss of enjoyment of life" amounts to legal error, thus warranting a de novo assessment of all general damages and review of damage awards for injuries comparable to those he claims, citing Hoyt v. State Farm Mut. Auto. Ins. Co., 623 So.2d 651, 660 (La.App. 1st Cir.), writ denied, 629 So.2d 1179 (La. 1993). We disagree with that characterization of the applicable standard of review, and find Hoyt factually distinguishable.

Standard of Review

The trier of fact is accorded much discretion in fixing general damage awards. La. C.C. art. 2324.1; Cheramie v. Horst, 93-1168, p. 6 (La.App. 1st Cir.5/20/94), 637 So.2d 720, 723. The discretion vested in the trier of fact is great, even "vast," so that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

The role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Wainwright v. Fontenot, 00-0492, p. 6 (La.10/17/00), 774 So.2d 70, 74; Youn, 623 So.2d at 1261. The 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. Youn, 623 So.2d at 1260.

Before an appellate court can disturb the quantum of an award, the record must clearly reveal that the jury abused its discretion. In order to make this determination, the reviewing court looks first to the individual circumstances of the injured plaintiff. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993). Reasonable persons frequently disagree about the measure of general damages in a particular case. Youn, 623 So.2d 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 decrease the award. Id. Only after analysis of the facts and circumstances peculiar to the particular case and plaintiff may an appellate court conclude *118 that the award is inadequate. Theriot., 625 So.2d at 1340.

If the appellate court determines that an abuse of discretion has been committed, it is then appropriate to resort to a review of prior awards, to determine the appropriate modification of the award. Prior awards under similar circumstances serve only as a general guide.

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Cite This Page — Counsel Stack

Bluebook (online)
960 So. 2d 114, 2007 WL 858871, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oden-v-gales-lactapp-2007.