Thibodeaux v. Williamson

9 So. 3d 1075, 8 La.App. 3 Cir. 1082, 2009 La. App. LEXIS 573, 2009 WL 995866
CourtLouisiana Court of Appeal
DecidedApril 15, 2009
DocketNo. 08-1082
StatusPublished

This text of 9 So. 3d 1075 (Thibodeaux v. Williamson) 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
Thibodeaux v. Williamson, 9 So. 3d 1075, 8 La.App. 3 Cir. 1082, 2009 La. App. LEXIS 573, 2009 WL 995866 (La. Ct. App. 2009).

Opinions

SULLIVAN, Judge.

|, Plaintiff appeals a jury verdict, urging that it is inadequate in light of her injuries and future medical treatment she will have to undergo. For the following reasons, we affirm.

Facts

Garnet Thibodeaux was injured in a rear-end collision with Elizabeth Williamson on May 8, 2006. She sued Ms. Williamson and her insurer, State Farm Mutual Automobile Insurance Company, to recover damages for a neck injury she suffered in the accident. She also sued State Farm Mutual Automobile Insurance Company in its capacity as her uninsured/underinsured insurer. Defendants stipulated to liability for the accident, and Ms. Williamson was dismissed from the suit.

The matter was tried to a jury on February 28-29, 2008. The jury awarded her the following damages:

a) Past Pain, Suffering, and Mental
Anguish $15,000.00
b) Future Pain, Suffering, and Mental Anguish $ 5,000.00
c) Permanent Physical Impairment
and/or Disability 0.00
d) Scarring and Disfigurement due
to Surgery 0.00
e) Loss of Enjoyment of Life 0.00
f) Past Medical Expenses $10,869.50
g) Future Medical Expenses $ 8,000.00
TOTAL DAMAGES $38,869.50

After trial, Ms. Thibodeaux filed a Motion for Judgment Notwithstanding the Verdict, seeking an increase in damages, which the trial court denied. She appealed the jury’s verdict, assigning error with the jury’s damage award. She argues that the 12award “was grossly inadequate given the undisputed evidence of a herniated cervical disc with nerve root and spinal cord compression and that this medical condition” was caused by the May 6, 2006 accident. She further assigns as error the trial court’s denial of her Motion for Judgment Notwithstanding the Verdict.

Standard of Review

The jury’s damage awards are findings of fact. Ryan v. Zurich Am. Ins. Co., 07-2312 (La.7/1/08), 988 So.2d 214; La.Civ.Code art. 2324.1. Appellate courts review factual determinations of the jury pursuant to the manifest error — clearly wrong standard, which prohibits setting aside a jury’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Driscoll v. Stucker, 04-589 (La.1/19/05), 893 So.2d 32. “Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

Discussion

Ms. Thibodeaux’s Medical History

Ms. Thibodeaux was injured in two incidents prior to the May 2006 accident. In 2002, she was involved in an automobile accident. She injured her neck in that accident also and was treated by her family physician, Dr. Brian Granger. On April 1, 2006, Ms. Thibodeaux fell while refereeing a soccer game and broke her right wrist. She was treated by Dr. Michael Duval, an orthopedist, for her wrist injury. Dr. Duval performed a closed reduction on her wrist and prescribed physical therapy. The course of physical therapy he prescribed had not been completed when Ms. Thibodeaux was involved in the accident at issue here, and Dr. Duval reevaluated her at the request of her therapist to ensure it was okay for her to continue her |3physical therapy regime. She thereafter completed physical therapy without further incident.

[1077]*1077After her 2002 accident, Ms. Thibodeaux had been treated by Dr. Granger for headaches and neck and shoulder pain. Dr. Granger prescribed medication and a course of physical therapy. Ms. Thibo-deaux completed therapy as prescribed and, on October 27, 2004, was released by her therapist with a home program of exercises and stretches. Her complaints of pain to her physical therapist included headaches, right neck pain, left neck pain, and upper left back pain and tightness. The therapist noted on more than one occasion that her various complaints included “significant tightness and spasm in her posterior-lateral cervical musculature, especially the left side” with a “displayed prominence over her lower cervical and upper thoracic vertebrae” and noted on April 8, 2003, that “[s]he had a slight weakness in her upper extremities and cervical area muscles.” In February 2005, Ms. Thibodeaux complained to Dr. Gran-ger of throbbing pain in her left upper arm and left shoulder blade. Her last visit to Dr. Granger before her May 2006 accident was in October 2005. At that time, she complained of headache radiating to her neck. Dr. Granger noted she had spasm on the right side of her neck and prescribed pain medication.

Ms. Thibodeaux next saw Dr. Granger on June 6, 2006. Dr. Granger’s notes do not reflect any complaints by Ms. Thibo-deaux of neck pain on that visit. On July 14, 2006, Ms. Thibodeaux saw Dr. Granger complaining of a sinus infection. She also complained of neck pain that went down into her shoulders, which she related to her May 2006 accident. She informed him she had been treated by a doctor in New Iberia with no relief. On examination, Dr. Granger noted decreased range of 14motion with rotation, flexion, and extension. He prescribed pain medication and physical therapy.

On August 22, 2006, Ms. Thibodeaux returned, complaining of neck pain, which radiated down into her right arm, and numbness and tingling in her right arm. On examination, she had pain on the right side of her neck with decreased rotation with spasm in her right paraspinous muscles. Dr. Granger prescribed a pain reliever, a muscle relaxer, and continued physical therapy. He also ordered an MRI of Ms. Thibodeaux’s cervical spine. The MRI, which was performed on August 24, 2006, revealed “a significant central right lateral focal disc herniation with probable right G6 nerve root compromise.”

Ms. Thibodeaux’s next visit to Dr. Gran-ger was December 7, 2006. She complained of low grade fever, cough, sore throat, and neck and shoulder pain. She did not see Dr. Granger again until October 1, 2007, when she complained of neck pain and headache in the left temporal area. She indicated that her neck pain had been constant since the previous weekend and radiated to her left temple and down into her left arm. Dr. Granger’s examination revealed less strength in her left arm and a decreased range of motion in her neck due to pain in all directions. Dr. Granger ordered another cervical MRI and referred her to a neurosurgeon because of these complaints. The results of this second MRI were not introduced into evidence, and she had not seen the neurosurgeon before trial. The last entry in Ms. Thibodeaux’s patient record was a call to Dr. Granger on February 7, 2008, during which she complained of headaches and neck pain; he prescribed pain medication and muscle relaxers.

|sMs. Thibodeaux’s physical therapist’s notes indicate that she began therapy on August 1, 2006, at which time she complained of neck pain and muscle tightness. During the course of therapy, she complained of neck and shoulder pain, which [1078]*1078she initially indicated ranged from six to. eight on a scale of ten.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Basco v. Liberty Mut. Ins. Co.
909 So. 2d 660 (Louisiana Court of Appeal, 2005)
Coutee v. Beurlot
964 So. 2d 304 (Supreme Court of Louisiana, 2007)
Rosell v. Esco
549 So. 2d 840 (Supreme Court of Louisiana, 1989)
Driscoll v. Stucker
893 So. 2d 32 (Supreme Court of Louisiana, 2005)
Ryan v. Zurich American Ins. Co.
988 So. 2d 214 (Supreme Court of Louisiana, 2008)
Sportsman Store v. Sonitrol SEC. Systems
748 So. 2d 417 (Supreme Court of Louisiana, 1999)
West v. Bayou Vista Manor, Inc.
371 So. 2d 1146 (Supreme Court of Louisiana, 1979)

Cite This Page — Counsel Stack

Bluebook (online)
9 So. 3d 1075, 8 La.App. 3 Cir. 1082, 2009 La. App. LEXIS 573, 2009 WL 995866, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thibodeaux-v-williamson-lactapp-2009.