Smith v. Escalon

117 So. 3d 576, 2013 WL 3197480, 2013 La. App. LEXIS 1291
CourtLouisiana Court of Appeal
DecidedJune 26, 2013
DocketNo. 48,129-CA
StatusPublished
Cited by21 cases

This text of 117 So. 3d 576 (Smith v. Escalon) 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
Smith v. Escalon, 117 So. 3d 576, 2013 WL 3197480, 2013 La. App. LEXIS 1291 (La. Ct. App. 2013).

Opinion

WILLIAMS, J.

| defendants, Mark S. Escalón, ARI Fleet LT and Discover Property and Casualty, appeal the trial court’s award of damages to plaintiffs. For the following reasons, we affirm.

FACTS

On November 30, 2009, plaintiff, Troy Smith, was injured in an automobile accident in Jackson Parish, Louisiana. Plaintiff, who was driving a Chevrolet Corvette, was rear-ended by defendant, Mark Escal-ón, who was driving a Toyota pickup truck. [579]*579The pickup truck was owned by Escalon’s employer, ARI Fleet LT.

Following the accident, Smith presented to the emergency room at Jackson Parish Hospital complaining of back pain related to the accident. The x-rays taken in the emergency room did not reveal any fractures; Smith received a prescription for pain medication and was released. Smith’s pain persisted for several months. Subsequently, Smith was seen by a nurse practitioner, who later referred him to Dr. James Hardy Gordon, an interventional pain specialist, at Louisiana Pain Care in Monroe. Plaintiff underwent physical therapy for several weeks. Although his pain persisted after he completed physical therapy, Smith declined further treatment.

On October 1, 2010, plaintiff and his wife, Carla Smith, filed this lawsuit, alleging that Smith sustained personal injuries as a result of the accident; Mrs. Smith alleged loss of consortium. Escalón, ARI Fleet LT and its insurer, Discover Property and Casualty, were named as defendants. Prior to the trial, the parties stipulated that Escalón was solely at fault in causing the accident.

|2The matter proceeded to trial on the sole issue of damages. Smith testified that the accident changed his life. He stated that he was no longer able to stand for long periods of time, work in his yard, maintain his vehicles or perform household chores. He also testified that he experienced pain for approximately six months after the accident, and he continued to experience pain at the time of trial, albeit to a lesser degree. Additionally, Smith testified that he preferred having his life the way it was prior to the accident, rather than receiving a monetary award.

Mrs. Smith testified that she and her husband had been married since 1982. She admitted that her husband had significant health-related issues prior to the accident. However, she stated that he was not experiencing any problems in the months leading up to the accident. Mrs. Smith stated that Mr. Smith continued to have pain for weeks after the accident and was having increasing difficulty doing things around the house. Mrs. Smith testified that prior to the accident, her husband did the majority of the yard work, but since the accident, he was no longer able to do so. Additionally, she stated that Mr. Smith was unable to perform many of the household chores as a result of the accident. Mrs. Smith further testified that her husband made an appointment with a local doctor, who referred him to Dr. Gordon in Monroe. She stated that Dr. Gordon prescribed pain medication, and her husband took the pills at first; however, after a while, he stopped taking them, electing to “deal with” the pain. On cross-examination, Mrs. Smith testified that the accident did not affect her marriage in any way. On recross-examination, she testified that she never stopped loving her husband [.¡because of the accident, and they never had any disagreements because of the accident.

Plaintiffs introduced into evidence the deposition testimony of Dr. Gordon, the pain specialist who treated Smith at Louisiana Pain Care. Dr. Gordon testified that he began treating Smith in March 2010. He also testified that Smith had a history of back pain, having undergone vertebro-plasty for compression fractures at T8 and T9.1 Dr. Gordon noted that Smith reported an initial gradual onset of back pain following the car accident; however, the pain had increased significantly. Smith [580]*580also reported that he was unable to stand for long periods of time, and the pain could only be relieved by lying flat. According to Dr. Gordon, he ordered magnetic resonance imaging (“MRI”) of the “thoracic and lumbar spine to rule out any acute pathology.” He also wanted to “rule out any recurrence of vertebral compression fractures or any acute disc herniations [and/or] facet arthropathy[.]” Dr. Gordon testified that Smith returned for a followup visit on March 24, 2010. During that visit, Dr. Gordon noted that Smith’s pain continued. Dr. Gordon also noted that he discussed the MRI findings with Smith. According to Dr. Gordon, the MRI showed mild degenerative disc disease and some narrowing in the spinal column. Dr. Gordon testified that he did not know how long the discs had been degenerating or when the narrowing began; therefore, he could attribute neither condition to the automobile accident. The MRI also showed that Smith had a compression fracture, which Dr. Gordon opined had probably occurred more than six |4months prior to the date of the MRI. Nonetheless, Dr. Gordon stated, “In my opinion, I feel like he had obvious chronic changes that preceded the accident, but I do feel as though they were exacerbated to some point with the accident.” Dr. Gordon noted that Smith expressed that he did not want to have back surgery. Rather, Smith opted for conservative treatment; therefore, Dr. Gordon prescribed an anti-inflammatory medication, a muscle relaxant and physical therapy.

On cross-examination, Dr. Gordon testified that Smith did not present to him until approximately four months after the accident. He stated that, more than likely, had Smith sought treatment earlier, he would have obtained relief from his symptoms sooner. However, Dr. Gordon reiterated that it was more probable than not that the accident aggravated Smith’s preexisting back condition.

At the conclusion of the trial, the court awarded Smith $20,000 in general damages. The court also awarded special damages totaling $6,316.81 for medical bills and other out-of-pocket expenses, and litigation expenses in the amount of $694.25.2 Additionally, the court awarded Mrs. |sSmith $1,000 for loss of consortium.

Defendants appeal.

[581]*581DISCUSSION

General Damages

Defendants contend the trial court erred in awarding plaintiff $20,000 in general damages. Defendants argue that plaintiff had a long history of back pain and other spinal issues related to his prior diagnosis of prostate cancer. Defendants also argue that plaintiff suffered only soft tissue injuries as a result of the accident and underwent only a few weeks of physical therapy; his symptoms had resolved within six months after the accident.

One injured through the fault of another is entitled to full indemnification for damages caused thereby. Wainwright v. Fontenot, 2000-0492 (La.10/17/00), 774 So.2d 70; Caskey v. Merrick Const. Co., Inc., 46,886 (La.App.2d Cir.3/14/12), 86 So.3d 186, writ denied, 2012-0847 (La.6/1/12), 90 So.3d 442. General damages are those which 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 lifestyle which cannot be definitely measured in monetary terms. Duncan v. Kansas City Southern Railway Co., 2000-0066 (La.10/30/00), 773 So.2d 670, cert. dism., 532 U.S. 992, 121 S.Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
117 So. 3d 576, 2013 WL 3197480, 2013 La. App. LEXIS 1291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-escalon-lactapp-2013.