Judgment rendered September 22, 2021. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 54,030-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STACEY WEIR, MITCHELL Plaintiffs-Appellants ODOM, JR., AND RITA ODOM
versus
KILPATRICK’S ROSE-NEATH Defendant-Appellee FUNERAL HOMES, CREMATORIUM AND CEMETARIES, INC.
Appealed from the Forty-Second Judicial District Court for the Parish of DeSoto, Louisiana Trial Court No. 77,369
Honorable Amy Burford McCartney, Judge
T. TAYLOR TOWNSEND, LLC Counsel for Appellants By: Thomas Taylor Townsend
KAMMER & HUCKABAY, LTD By: Charles H. Kammer, III
COOK, YANCEY, KING & GALLOWAY Counsel for Appellee By: Elizabeth Mendell Carmody Jordan B. Bird
MORRIS & DEWETT, LLC By: Josh Powell *****
Before COX, STEPHENS, and THOMPSON, JJ. THOMPSON, J.
The surviving spouse and adult daughter of the decedent appeal the
damages awarded by a jury against the defendant funeral home hired by
them to oversee the embalming, visitation, funeral arrangements, and burial
of their husband and father.1 The jury found negligence on the part of the
funeral home and awarded general damages to both plaintiffs, as well as
damages for future medical expenses. The plaintiffs appeal the failure of the
jury to award past medical expenses and appeal as abusively low the amount
of the awards of future medical expenses and general damages. For the
following reasons, we affirm the jury’s verdict in part and reverse in part.
FACTS
The plaintiffs, Stacey Weir (“Stacey”) and Rita Odom (“Mrs.
Odom”), are the daughter and wife, respectively, of Mitchell Grant Odom,
Sr. (“Mr. Odom”), who suddenly and unexpectedly died of a heart attack on
May 2, 2015. Mr. and Mrs. Odom had been married for over 40 years, and
Stacey is their daughter. Only because the nature and extent of the
relationship between a plaintiff and a decedent may be relevant in quantum
decisions by a trier of fact, we note that the record reflects that the Odoms
had previously separated for a period of time during their marriage but later
reconciled. They were also living separate and apart for a number of weeks
at the time of Mr. Odom’s death, with Mr. Odom residing in the apartment
located over his brother’s garage. Mrs. Odom described those living
arrangements as temporary, and the record reflects no divorce proceedings
were instituted by either party.
1 We note that the defendant’s name, Kilpatrick’s Rose-Neath Funeral Homes, Crematorium and Cemeteries, was misspelled in the caption of the pleadings by plaintiffs. After Mr. Odom’s death, Mrs. Odom retained and signed a contract with the
defendant, Kilpatrick’s Rose-Neath Funeral Homes, Crematorium and
Cemeteries, Inc. (“Rose-Neath”), to oversee preparation of Mr. Odom’s
body, as well as his visitation, funeral, and burial. Mrs. Odom and Stacey
expressed their desire to have an open casket at the funeral and were never
informed by Rose-Neath when planning the funeral that it would be more
appropriate to have a closed casket. They were never advised to alter those
original plans when challenges arose from the condition of Mr. Odom’s
body during the visitation and funeral service. Plaintiffs allege that Rose-
Neath should have intervened and taken corrective action when the
circumstances surrounding the visitation and funeral deteriorated.
It is undisputed that Mr. Odom’s body was prepared for his visitation
and funeral by Rose-Neath. Embalming is designed to slow the natural and
unavoidable process of decomposition of the body and its unpleasant side
effects. There was evidence adduced from Rose-Neath’s employee that the
embalming process of Mr. Odom was difficult, and he testified that at the
time of embalming, he noticed signs of decomposition, including
discoloration and an unusual odor.
The visitation and funeral services got off to an unfortunate start when
Mr. Odom’s body was not timely delivered to Rose-Neath’s Logansport
funeral home as scheduled on May 4, 2015. While there is some dispute as
to exactly what time the visitation was set to occur, it is undisputed that Mr.
Odom’s body was delivered at least thirty minutes late to the visitation,
arriving after family and friends had gathered to show their respects.
2 Louisiana in May can be unpleasantly warm. Testimony established it
was also uncomfortably hot inside the funeral home when the plaintiffs
arrived that evening for Mr. Odom’s visitation. When Mrs. Odom and
Stacey arrived, it was apparent that the air conditioning inside the building
was not and had not been properly functioning that day. Heat can accelerate
the decomposition process. After Mr. Odom’s body was delivered to the
visitation, people who attended noticed an odor coming from the deceased.
Plaintiffs testified they were not particularly aware of the odor during
visitation. Mr. Odom’s body was kept by the funeral home overnight in the
unairconditioned chapel.
By the time of the funeral the following day, testimony established
that Mr. Odom’s body had begun to swell with gases, was leaking fluids,
and was emitting a noxious odor. Stacey testified she got up several times to
wipe fluids emitting from her father’s mouth before the funeral services
began. There is also testimony from several people who attended the funeral
about the leaking fluid and a terrible odor of decay. Some of the funeral
attendees had to leave the chapel during the funeral, reportedly due to the
heat and the smell inside the building. After the funeral service, the
deceased was moved to the cemetery and properly interred.
Plaintiffs allege that despite Rose-Neath being alerted by the
embalmer of the condition of Mr. Odom’s body and the fact that it was not
taking the embalming process well, Rose-Neath never suggested that the
visitation and funeral should be a closed casket service. Stacey testified that
if someone had told her or her mother that they needed to have a closed
casket due to the state of the body, they would have agreed to do so.
3 Plaintiffs also assert Rose-Neath never undertook any remedial efforts to
resolve the lack of air conditioning at the location nor did it offer to relocate
the visitation and funeral services to any of its other neighboring locations,
which would have had appropriate climate control for keeping Mr. Odom’s
body overnight, as well as provided more comfortable conditions for the
attendees at the services.
Following Mr. Odom’s burial, Stacey and Mrs. Odom sought
treatment beginning May 25, 2016, with a licensed social worker, Carole
Pruett (“Pruett”), for the emotional challenges they allege were brought on
by the condition of Mr. Odom’s body and events surrounding his visitation
and funeral services. Pruett diagnosed both women with post-traumatic
stress disorder (“PTSD”) related to their experiences at the visitation and
funeral. Pruett testified that she treats PTSD with eye movement
desensitization reprocessing (“EMDR”). She saw Mrs. Odom 31 times
between May 25, 2016 and March 15, 2018, and EMDR was initiated four
times. Pruett testified that Mrs. Odom shut down with the last two EMDR
sessions and they were not completed.
Pruett saw Stacey approximately 30 times between May 25, 2016 and
April 18, 2018, and EMDR was initiated two times. Pruett testified that
Stacey stopped the processing early in both sessions. Pruett testified that
both Mrs. Odom and Stacey would avoid their feelings related to the
visitation and funeral and had consistent resistance to EMDR.
On November 6, 2018, Mrs. Odom started treatment with Shelley
Visconte, a psychologist, who also diagnosed her with PTSD. Mrs. Odom
saw Dr. Visconte five times between November 6, 2018 and August 23,
4 2019. Dr. Visconte testified that people who experience post-traumatic
stress engage in avoidance, meaning they have a fear of things that trigger
memories or thoughts of the traumatic event. Dr. Visconte described Mrs.
Odom as having nightmares and flashbacks of the funeral. Mrs. Odom also
had physiological responses, including increased heart rate, shortness of
breath, and anxiety. Mrs. Odom missed some of her appointments with Dr.
Visconte, but the doctor later testified that she attributed the missed
appointments as avoidance and noted that avoidance is very typical of those
people who have PTSD. Dr. Visconte believed Mrs. Odom could benefit
from continued future treatment and, under questioning, estimated the costs
for the recommended treatment to be between $6,000 and $10,000.
Stacey began seeing Dr. Jennifer Russell, a psychologist, on February
7, 2019, and Dr. Russell treated Stacey five times between February 7, 2019
and June 25, 2019. Dr. Russell diagnosed Stacey with PTSD and also noted
the avoidance symptoms of PTSD, including missing or cancelling several
of her appointments.
Plaintiffs submitted to an independent medical examination on July
27, 2017, with Rose-Neath’s medical expert, Dr. Daniel Feeney, who is a
board-certified psychiatrist. Dr. Feeney diagnosed both plaintiffs with
PTSD specifically related to the handling of Mr. Odom’s body and funeral.
Dr. Feeney gave each plaintiff a 10% to 30% disability rating due to their
traumatic experience.
On February 18, 2020, the parties began a three-day trial which
included a number of witnesses including: Richard Tull, Rose-Neath’s
embalmer, Dr. Shelley Visconte, Mrs. Odom’s treating psychologist, Erma
5 Spears, Rose-Neath’s Logansport receptionist who noticed the air
conditioning not working, Bill Spears, who managed Rose-Neath’s
Logansport location on the day of the visitation, Dr. Daniel Feeney, the
independent medical examiner, Dr. Jennifer Russell, Stacey’s treating
psychologist, Mrs. Odom, Stacey, and several friends and family of the
Odoms who all attended the visitation and funeral, including Mrs. Odom’s
sister, Tammy Weaver, Mrs. Odom’s brother, Danny Weaver, Mrs. Odom’s
best friend, Kathy Reeves, and Stacey’s best friend, Staci Dechamplain.
After the third day of trial, the case was turned over to the jury, and
after two hours of deliberation, the jury returned its verdict in favor of the
plaintiffs. The jury found that plaintiffs had proven by a preponderance of
the evidence that Rose-Neath was negligent with regard to the visitation
and/or funeral of Mr. Odom and awarded $5,000 in general damages each to
Stacey and Mrs. Odom, which amount included past and future pain,
suffering, and mental anguish. The jury also awarded $5,000 each to Stacey
and Mrs. Odom for future medical expenses, but there was no award given
to either woman for past medical expenses incurred from the date of the
funeral through trial. Plaintiffs now appeal, arguing that they should have
been awarded past medical expenses, that Mrs. Odom’s future medical
award was abusively low, and that both plaintiffs received an abusively low
general damages award.
DISCUSSION
First Assignment of Error: The jury erred in failing to award past medical expenses, and the award was internally inconsistent since the jury awarded future medical expenses.
6 In their first assignment of error, plaintiffs argue that the jury erred in
failing to award past medical expenses, a result that is internally inconsistent
because the jury awarded future medical expenses. Rose-Neath urges that
the jury’s decision is not internally inconsistent because there were
permissibly conflicting views of the evidence that could allow the jury to
reject an award of past medical expenses.
Special damages are those damages that can be determined with some
degree of certainty and include past and future medical expenses.
Richardson v. Christus Shumpert Health Sys., 47,776 (La. App. 2 Cir.
2/27/13), 110 So. 3d 264, writ denied, 13-0621 (La. 4/19/13), 112 So. 3d
228. Medical expenses are a component of special damages. The plaintiff
bears the burden of proving special damages by a preponderance of the
evidence. Id. An award of special damages is reviewed pursuant to the
manifest error standard of review.
In Cormier v. Colston, 05-0507 (La. App. 3 Cir. 12/30/05), 918 So. 2d
541, a tenant brought an action against her landlord to recover damages
when she fell down the steps of her rented home and injured her knee. The
jury was presented with expert medical testimony from only one witness,
who testified that the tenant’s injuries were caused by the fall from her steps,
even though she had previous knee problems. He testified regarding her past
medical bills for his services and provided an estimate of future medical
costs to repair the knee. The jury returned a verdict awarding the tenant
future medical costs but no past medical costs. Id.
The jury specifically found that the defendant was negligent and that
negligence contributed to the accident, which caused the plaintiff’s injuries.
7 The Cormier court stated that “[d]espite these specific findings, the jury then
ignored the uncontradicted past medical expenses associated with treatment
for the same injury for which it awarded future medical expenses.” Id. The
court found that the jury’s verdict appeared internally inconsistent and stated
that it must then determine if there was a reasonable basis discernible in the
record for the apparent inconsistences in the jury’s verdict.
We find in the present matter that the jury’s grant of an award for
future medicals to Stacey and Mrs. Odom but the denial of an award for past
medical expenses is internally inconsistent. The genesis of the emotional
harm to Stacey and Mrs. Odom is their experience at the events surrounding
the visitation and funeral of Mr. Odom. We must determine whether there is
a reasonable basis for this apparent inconsistency in the record, i.e.
recognizing the damage caused by Rose-Neath and compensating Stacey and
Mrs. Odom for future medical expenses but excluding the treatments for the
time period between the funeral and the trial for that same damage.
The record reflects that Stacey and Mrs. Odom sought treatment with
Pruett, who diagnosed both women with PTSD related to Mr. Odom’s
visitation and funeral. Pruett treated each woman approximately 30 times.
Mrs. Odom sought further treatment from Dr. Visconte, a psychologist, who
diagnosed her with PTSD related to the visitation and funeral. Stacey began
treatment with Dr. Russell, a psychologist, who diagnosed Stacey with
PTSD stemming from her father’s funeral and visitation. Mrs. Odom’s
expenses for the medical treatment she sought related to her traumatic
experience total $5,145. Stacey’s expenses for her medical treatment are
$4,835.
8 The only other medical expert who testified at trial was Rose-Neath’s
expert psychiatrist, Dr. Feeney. Dr. Feeney diagnosed both plaintiffs with
PTSD linked specifically to the funeral and the condition of Mr. Odom’s
body. Dr. Feeney testified that he would estimate an impairment rating at
10-30% minimum for each plaintiff. The record is clear and undisputed that
both plaintiffs suffered PTSD dating back specifically to the traumatic
experience they had at their loved one’s visitation and funeral. Rose-
Neath’s own expert concluded that the plaintiffs had PTSD. At trial, Rose-
Neath questioned the efficacy of plaintiffs’ treatments but did not dispute the
fact that they incurred the above medical bills.
At the conclusion of the trial, the jury found that Stacey and Mrs.
Odom proved by a preponderance of the evidence that Rose-Neath was
negligent with regard to the visitation and/or funeral of Mr. Odom. The jury
also found that Stacey and Mrs. Odom had proven by a preponderance of the
evidence that Rose-Neath’s negligence caused them damages for which they
should be compensated.
The jury verdict is clear that the jurors believed plaintiffs had been
injured by Rose-Neath’s negligence at the visitation and funeral and that
injury was sufficiently serious that it would require future medical
treatments. As such, the jury clearly believed the injury done to the
plaintiffs occurred at the time of Mr. Odom’s visitation and funeral, not by
reliving the experience during trial, as the defendant suggests. If the injury
done to the plaintiffs, for which Rose-Neath is responsible, occurred at the
time of the funeral, then Rose-Neath should be responsible for the medical
expenses incurred as a result of that injury, beginning from the day of injury.
9 We find the fact that the jury failed to award damages for past medical
expenses to be internally inconsistent and not reasonably explained from the
record. By its factual conclusions and the award of future medical expenses,
the jury could not have reasonably ignored the existence of past medical
expenses for the same injuries. Mrs. Odom and Stacey have established
their entitlement to past medical expenses.
If the factual findings are manifestly erroneous or clearly wrong such
that a plaintiff is entitled to an award for a particular category of damages,
and the jury fails to make such an award, the reviewing court is to perform a
de novo review of the record and make an award. Green v. K-Mart Corp.,
03-2495 (La. 5/25/04), 875 So. 2d 838. Based on our review of the record,
we reverse the jury and trial court on these issues and award Mrs. Odom
$5,145 in past medical expenses and Stacey $4,835 in past medical
expenses.
Second Assignment of Error: The jury’s award of future medicals was abusively low for Rita Odom.
Plaintiffs argue that the jury’s award of $5,000 in future medical
expenses to Mrs. Odom was abusively low because Dr. Visconte estimated
that Mrs. Odom’s future medical expenses would range from $6,000 to
$10,000 for the course of the recommended treatment plan. Rose-Neath
argues that this award was not abusively low because there is contradictory
evidence in the record about the number of future sessions required.
Factual determinations of a trier of fact may not be reversed absent
manifest error or unless they are clearly wrong. Green, supra, quoting
Pinsonneault v. Merch. & Farmers Bank & Trust Co., 01-2217 (La. 4/3/02),
816 So. 2d 270, 278-79. Credibility determinations are for the trier of fact,
10 even as to the evaluation of expert witness testimony. Green, supra. A fact-
finder may accept or reject the opinion expressed by an expert, in whole or
in part. The trier of fact may substitute common sense and judgment for that
of an expert witness when such a substitution appears warranted on the
record as a whole. Id.
In the present matter, while Dr. Visconte testified that her estimate of
the expense of Mrs. Odom’s recommended future care would cost between
$6,000 and $10,000, these numbers were based on an estimated two rounds
of 12 sessions of cognitive processing therapy, at a cost of $150 per session.
The record reflects that at the time of trial, Mrs. Odom had incurred only
$750 in medical expenses from Dr. Visconte and had not been in for
treatment with her for over six months. Further, Dr. Russell, who did not
treat Mrs. Odom, testified that cognitive processing therapy usually only
requires 12 sessions. Finally, all the experts agreed that PTSD can be cured.
We find that the jury’s award of $5,000 to Mrs. Odom for future
medical expenses was not manifestly erroneous. There is evidence in the
record to support a slight deviation from the treatment plan and
corresponding costs recommended by Dr. Visconte. It is not this court’s
place to reweigh the evidence presented to the jury when its conclusions are
not manifestly erroneous. The jury awarded future medical expenses in an
amount not so far from the amount sought by plaintiff as recommended by
the treating provider, and we therefore cannot conclude the jury was in error.
For the foregoing reasons, we find this assignment of error is without merit.
Third Assignment of Error: The jury’s award of general damages was abusively low.
11 Finally, plaintiffs argue that the jury’s award of general damages in
the amount of $5,000 each is abusively low. Rose-Neath argues that the
amount of general damages awarded by the jury is within its discretion
based on the facts and circumstances of this case.
General damages are those which are inherently speculative in nature
and cannot be fixed with mathematical certainty. Wainwright v. Fontenot,
00-0492 (La. 10/17/00), 774 So. 2d 70. The trier of fact is vested with great
discretion, so that an appellate court should rarely disturb an award of
general damages. Goldsby v. Blocker Through Dep’t of Transp. & Dev.,
51,584 (La. App. 2 Cir. 9/27/17), 244 So. 3d 703. It is only when the award
is 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 role of the 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, supra. An appellate
court may disturb a damage award only when the record clearly reveals that
the jury abused its discretion in making the award, based on the facts and
circumstances peculiar to the case and the individual under consideration.
Goldsby, supra.
The record in this case reveals that the plaintiffs were dealing with the
loss of a loved one, notwithstanding the living arrangements of Mr. Odom
and Mrs. Odom at the time of his death. The jury was tasked with fixing
damages by comparing the already traumatic loss of a loved one with those
12 circumstances intensified by the described deteriorating conditions of Mr.
Odom’s body. Mrs. Odom and Stacey undoubtedly suffered from the
experience of seeing the condition of their loved one’s body during his
visitation and funeral. They were both diagnosed with PTSD related
specifically to the visitation and funeral of Mr. Odom. However, there is
evidence that the progress of both plaintiffs’ treatment for PTSD had slowed
by the time of trial. Additionally, in fixing the amount of damages, the jury
had the benefit of testimony at trial, addressing a degree of potential
estrangement between the deceased and his family, as he was living over his
brother’s garage, rather than in the family home, at the time of his death.
Plaintiffs were afforded the opportunity at trial to explain those
circumstances. The full extent of those conditions and any impressions and
credibility determinations were there to be made by the jurors when listening
to live testimony. The issue is not whether this court would have fixed
damages at a different amount, but rather, whether there was sufficient
information presented to the trier of fact to support their ultimate award.
The verdict and award by the jury was originally also subject to
considered review by the trial court. At the conclusion of the trial, plaintiffs
filed a motion for judgment notwithstanding the verdict, and, alternatively,
motion for new trial and/or additur. The trial court, having been present at
the trial, hearing witnesses testify, and having had the benefit of a procedural
history with this litigation, denied the plaintiffs’ request for a JNOV or a
new trial.
The facts of this case and the apparent condition of Mr. Odom’s body
during his visitation and funeral are disturbing. These unfortunate
13 conditions clearly exacerbated the grief of plaintiffs in losing a loved one,
making a difficult situation even worse. The jury found that Rose-Neath’s
negligence turned a sad event into a traumatic one for those closest to Mr.
Odom. The trial court apparently agreed with the conclusions reached by
the jury. Based upon this record we cannot say that the jury abused its
discretion in awarding general damages of $5,000 to each plaintiff based on
the totality of the evidence presented. The discretion vested in the trier of
fact is vast and an award of general damages should rarely be disturbed.
This assignment of error is without merit.
CONCLUSION
For the foregoing reasons, we reverse the trial court’s judgment
insofar as it fails to award past medical expenses to the plaintiffs and we
hereby render judgment awarding past medical expenses in the amount of
$5,140 to Rita Odom and $4,835 to Stacey Weir. In all other respects, we
affirm the remaining portions of the judgment and tax costs of the appeal to
the defendant, Kilpatrick’s Rose-Neath Funeral Homes, Crematorium and
Cemeteries, Inc.
AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.