Pearce v. Baltazar

529 So. 2d 1291, 1988 La. App. LEXIS 1343
CourtLouisiana Court of Appeal
DecidedJune 7, 1988
DocketNos. 88-CA-70, 88-CA-71
StatusPublished
Cited by2 cases

This text of 529 So. 2d 1291 (Pearce v. Baltazar) 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
Pearce v. Baltazar, 529 So. 2d 1291, 1988 La. App. LEXIS 1343 (La. Ct. App. 1988).

Opinion

GOTHARD, Judge.

This is a consolidated case arising from an automobile accident in which two persons were injured. One plaintiff has settled her case. From judgment notwithstanding the verdict in favor of the remaining plaintiff, both the defendant and plaintiff have appealed.

The appellant, Jane Hoogerwerf, then 33 years old, was injured on February 23, 1983, when her car was struck from the rear by the vehicle of the defendant, Albert Baltazar. She was treated for neck pain and headaches by a chiropractor over the ensuing months, later consulting an orthopedist, and finally undergoing tests including a myelogram, from which a diagnosis of ruptured cervical disc was made. Surgery was performed in November, 1985. Mrs. Hoogerwerf claims permanent damage to the spinal cord because of the surgery itself and permanent nerve damage to the right leg and foot and to the fingers of her left hand diagnosed as Brown Sequard syndrome, a condition allegedly resulting from the surgery.1

Suit was filed on February 23, 1983 against Albert Baltazar and his insurer USF & G. A jury trial was held and, at the close of the defendant’s case, the plaintiff moved for a directed verdict on liability and on medical causation. The trial court granted a directed verdict, finding the defendant solely liable for the accident, but denied the plaintiff's motion as to medical causation. The jury found in favor of the plaintiff, awarding general damages of $17,500 and special damages of $5,000. [1293]*1293The court adopted the verdict as its judgment and ordered the defendant to pay, in addition to the damages, interest from date of demand, expert witness fees and costs. On June 15, 1987, the judge heard the plaintiff’s motion for judgment notwithstanding the verdict, or new trial, or in the alternative additur. The judge granted judgment notwithstanding the verdict and ordered that a new trial on quantum only be held in the event that his verdict was reversed on appeal. The judgment NOV awarded general damages of $165,000 and $19,497.37 in special damages plus interest, expert fees, and costs.

The issues raised by the defendant are: (1) whether the court should have been precluded from granting a judgment notwithstanding the verdict when it had previously denied a directed verdict on the same issue; and (2) whether the evidence presented at trial supported a motion notwithstanding the verdict.

The six issues raised by the plaintiff all relate to one question: whether the trial court’s award of $165,000 in general damages should be increased, as the plaintiff has sustained permanent injuries.

JUDGMENT NOTWITHSTANDING THE VERDICT, AFTER DENIAL OF DIRECTED VERDICT

The defendant first contends that the trial judge granted the judgment notwithstanding the verdict in error, when he had previously denied the motion for directed verdict on the same facts and when the standards for granting the two motions are the same. La.C.C.P. arts. 1810,1811. This court summarized the jurisprudence as follows in Brannan v. Wyeth Laboratories, Inc., 516 So.2d 157, 165 (La.App. 5th Cir. 1987), writ granted 519 So.2d 109 (La.1988):

The standard to be applied in ruling on a motion for judgment notwithstanding the verdict is the same as that used on a motion for directed verdict. Campbell v. Mouton, 373 So.2d 237 (La.App. 3 Cir. 1979). Either of those motions is properly granted where the facts and reasonable inferences point so overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict. Courtney v. Winn-Dixie Louisiana, Inc., 447 So.2d 504 (La.App. 5 Cir.1984), writ denied, 449 So.2d 1359 (La.1984). All of the evidence should be considered in the ruling on the motions, not just the evidence supporting the non-mover’s case, and it should be considered in the light most favorable to the opposing party. Courtney, supra; Oppenheim v. Murray Henderson Undertaking, 414 So.2d 868 (La.App. 4 Cir.1982). Furthermore, factual findings of the trial court cannot be overturned by the appellate court unless it is determined the factual findings were manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

While the court’s decisions were of necessity based upon the same facts, the grounds for the motions were different. In both situations the judge’s reasons from the bench indicate that he applied the correct standards. In denying the directed verdict on causation of the ruptured disc that required surgery, he stated that, as the possibility of a trauma subsequent to the automobile accident had been raised by the physicians’ testimony, the jury should determine “whether or not the injury ultimately sustained ... by Ms. Hoogerwerf had a causal connectivity to the accident in question.” He granted the judgment NOV on damages, determining that the award was inconsistent with the jury’s finding that the accident was a proximate cause of the plaintiff’s injuries. We find no procedural error in the judge’s rendering judgment notwithstanding the verdict.

SUFFICIENCY OF EVIDENCE TO SUPPORT JUDGMENT NOTWITHSTANDING THE VERDICT

At trial and in the appellate brief, the defendant’s position is that although Mrs. Hoogerwerf did receive minor injuries in the accident, the ruptured disc, occurring more than two years later, did not result from that accident but from an intervening event and he is not liable for the plaintiff’s [1294]*1294damages resulting therefrom. He asserts that the award of the jury, general damages of $17,500 and special damages of $5,000, was adequate compensation. The plaintiff contends that the February 23, 1983 accident alone caused all her medical problems, that she was entitled to the court’s award of increased damages, and that because of her permanent disabilities she is entitled to a further increase over the amount of the judgment notwithstanding the verdict.

At this point, a review of the evidence is necessary to our evaluation and resolution of the issues. The sequence of events as established at trial is as follows.

On February 23,1983, after the accident, Mrs. Hoogerwerf and a friend drove her car across the Causeway, to St. Tammany Hospital emergency room, after which she drove herself to her home in Covington. Her head hurt almost immediately after the collision and she felt a burning sensation in the back of her head. From then on until the surgery she had headaches and pain in her neck. She stayed home from work two days, returning to work after the intervening weekend.

On March 3, 1983 she consulted Dr. Jeffery B. Karas, a chiropractor, who treated her daily at first, then at gradually longer intervals through January 25, 1984.

On February 23, 1984 the petition in this suit was filed.

On March 2, 1984 and again on May 31, 1984, she consulted an orthopedic surgeon, Dr. Kenneth Adatto.

On July 19, 1984 she was examined by Dr. Russell C. Grunsten, an orthopedic surgeon, at the request of the defendant’s insurer U.S.F. & G.

On October 4, 1984, referred by her attorney, she saw Dr. John D. Jackson, a neurosurgeon.

A year later, on October 5, 1985 she consulted Dr. Claude Williams, an orthopedic surgeon, to whom her husband’s cardiologist referred her. On his recommendation, on about November 20, 1985 she underwent a myelogram, which disclosed a ruptured disc. She was seen in the hospital by Dr.

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Bluebook (online)
529 So. 2d 1291, 1988 La. App. LEXIS 1343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pearce-v-baltazar-lactapp-1988.