Karlin Riley Versus Rachel Lee Hollander, John D. Hollander, and Metropolitan Property and Casualty Insurance Company

KARLIN RILEY NO. 19-CA-520 C/W
19-C-473
VERSUS
FIFTH CIRCUIT
RACHEL LEE HOLLANDER,
JOHN D. HOLLANDER AND COURT OF APPEAL
METROPOLITAN PROPERTY AND
CASUALTY INSURANCE COMPANY STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 765-256, DIVISION "K"
HONORABLE ELLEN SHIRER KOVACH, JUDGE PRESIDING

May 28, 2020

JOHN J. MOLAISON, JR.
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Marc E. Johnson, and John J. Molaison, Jr.

AFFIRMED
JJM
FHW
MEJ

COUNSEL FOR PLAINTIFF/APPELLANT,
KARLIN RILEY
John W. Redmann
Edward L. Moreno
Kelly S. Rizzo

COUNSEL FOR DEFENDANT/APPELLEE,
RACHEL HOLLANDER, JOHN HOLLANDER AND METROPOLITAN
PROPERTY AND CASUALTY INSURANCE COMPANY
Andre' C. Gaudin
Ryan D. Kelley

MOLAISON, J.

In this automobile accident case, plaintiff appeals from a jury verdict and

subsequent trial court denials of a judgment notwithstanding the verdict and a

motion for new trial on the issue of alleged damages. For the reasons that follow,

we affirm the jury’s verdict and the trial court’s rulings, and further deny relief on

plaintiff’s consolidated writ application, in which he challenges the trial court’s

assessment of costs in the underlying matter.

PROCEDURAL HISTORY

On October 16, 2015, a vehicle driven by plaintiff, Karlin Riley, was

involved in a rear end collision with a car driven by defendant, Rachel Hollander,

on I-10 in St. John Parish. Plaintiff thereafter filed a petition for damages in the

Twenty-Fourth Judicial District Court on September 27, 2016, naming Hollander,

her husband, and their insurer as defendants, alleging injuries that included pain

and suffering as well as past and future medical expenses. On September 26, 2018,

the trial court granted plaintiff’s motion for partial summary judgment on the issue

of liability, which determined that Hollander was at fault for the October 2015

collision. The matter proceeded to trial on April 15, 2019, at the conclusion of

which the jury returned a verdict in favor of defendants, awarding no monetary

damages to plaintiff. Plaintiff filed a motion for judgment notwithstanding the

verdict, a motion for new trial and, alternatively, for additur, which were all denied

by the trial court following a hearing on May 29, 2019. This timely appeal

follows.

FACTS

As noted above, liability was not an issue at trial. The trial court had

previously granted a partial summary judgment finding that Rachel Hollander was

fully liable for the rear end collision that occurred between her and plaintiff on

October 16, 2015.

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Plaintiff’s testimony at trial

Plaintiff testified at trial regarding his alleged injuries. He stated that, prior

to the accident with defendant, he had never before been in an accident or

sustained an injury that required medical treatment.1 This included the time he

spent playing college football. Plaintiff stated that immediately after the accident,

his body stiffened. At the scene of the accident, plaintiff did not tell defendant he

was injured, but told the investigating State Trooper that his neck was stiff and his

back was hurting. The stiffness and pain were worse the following day. He

continued to work on light duty the following week even though he was in extreme

pain. In connection with plaintiff’s testimony, the jury was shown pictures of the

damage to plaintiff’s vehicle taken right after the accident. Plaintiff did not know if

there was damage to the front of defendant’s vehicle.

After his pain increased, plaintiff first sought out an attorney, who then

referred him to a doctor. He went to see Dr. William Alden for his “neck” and

“back.” He also went to physical therapy at Dr. Alden’s offices. On some days, he

felt better than others. Plaintiff asserted that he never received relief that lasted for

more than an hour when he was treating with Dr. Alden, which contradicted notes

in Dr. Alden’s file which stated that plaintiff reported that therapy was helping.

Plaintiff stopped therapy upon the advice of his attorneys, and was discharged by

Dr. Alden in May of 2016.

After Dr. Alden, plaintiff went to see Dr. Alan Johnston, an orthopedic

surgeon, in April of 2016. Dr. Johnston recommended epidural steroid injections,

which plaintiff decided against. There is no indication in Dr. Johnson’s notes that

plaintiff refused the proposed injections because he thought they would not be

effective. Dr. Johnson never recommended surgery, only the injections, rest, and

1
Plaintiff later acknowledged in his trial testimony that he had been involved in previous automobile
accident in 2011, but denied sustaining any injuries, although he had accepted a settlement check from the
other driver’s insurance company.

19-CA-520 C/W 19-C-473 2

continued medication. Dr. Johnson discharged plaintiff in July of 2016 because he

had reached maximum medical improvement.

Plaintiff then consulted a neurosurgeon, Dr. Morrow, who wrote in

plaintiff’s report that he could not explain where plaintiff’s pain was originating

from. Plaintiff did not recall if Dr. Morrow stated on June 26, 2017, that he was

not a candidate for surgery before being discharged that same month.

Plaintiff was then referred to Dr. Liechty by his new attorneys. Plaintiff

testified that Dr. Liechty recommended two surgeries, one for his back and another

for his neck. Dr. Liechty never prescribed him either medical or physical therapy.

The recommended surgeries had not been scheduled as of the time of trial.

Dr. Alden

Dr. William Alden was accepted by the court as an expert in the fields of

physical and rehabilitation medicine. Dr. Alden did not have a specific recollection

of treating plaintiff, and referred to his written notes and plaintiff’s chart

throughout the testimony. According to Dr. Alden’s notes, he first saw plaintiff on

November 24, 2015. The plaintiff’s complaints were neck and back pain, left leg

pain, headaches, dizziness and chest pain, which he claimed were related to an

automobile collision. Plaintiff did not receive medical attention immediately

following the accident, and had his appointment with Dr. Alden approximately 40

days after the accident, at the direction of plaintiff’s attorney. Plaintiff continued to

work as a welder “for a while” after the accident. Dr. Alden’s noted indicated that

his findings after the first examination of plaintiff were “normal range of motion

with tenderness and spasms in the cervical or neck area bilaterally and in the

trapezius muscles and in the front, the sternocleidomastoid muscles…tenderness

on the left side of the chest …normal range of motion of the lumbar spine with

tenderness present bilaterally and … muscle spasms bilaterally.” Plaintiff also had

tenderness on the left thigh. Dr. Alden testified that plaintiff did not report a

19-CA-520 C/W 19-C-473 3

significant preexisting history of illness or injury, and he noted that plaintiff was a

former athlete. Dr. Alden prescribed anti-inflammatory medication as well as a

mild muscle relaxer. In plaintiff’s second visit with Dr. Alden on December 15,

2015, plaintiff complained of neck, back, left leg pain, headaches, dizziness, chest

pain, and right shoulder tenderness. Plaintiff’s X-rays from that visit were normal.

Plaintiff had an MRI prior to a visit with Dr. Alden on February 24, 2016. At

that time, plaintiff continued with complaints of neck, back, left leg pain,

headaches, dizziness and the chest pain. The MRI results showed bulging discs at

L3-L4 and L4-L5 and facet joint inflammation. Dr. Alden opined that the findings

were consistent with injuries you might see from rear-end collisions and also sports

injuries. There was also a lumbar MRI conducted, which showed a vertebral disc

with an annulus fibrous teas and a posterior subligamentous herniation on the left

side. Dr. Alden stated that it was difficult to establish the date of the tear, but based

on plaintiff’s lack of previous medical records and work history, it was “more

probable than not that that pathology did not exist before.” Dr. Alden

recommended that plaintiff consult with an orthopedic surgeon who could give

treatment that involved steroid injections.

Dr. Alden’s last visit with plaintiff was in early May of 2016. Plaintiff’s

initial pain levels had dropped from the previous appointment.

On cross examination, Dr. Alden was asked to review plaintiff’s intake

form. When asked on the form to identify the injured areas, plaintiff circled his

neck, back and part of the shoulders, but he did not appear to circle the lower back.

Plaintiff did not mention headaches, chest pain, or dizziness on the intake form.

Plaintiff did not indicate that he had suffered any type of head trauma in the

accident. Dr. Alden’s diagnosis of a sprain of the ligaments of the cervical spine in

the neck was based on the clinical history that plaintiff presented and plaintiff’s

assertion that there was no intervening trauma between the accident and the time

19-CA-520 C/W 19-C-473 4

that Dr. Alden examined him. Plaintiff’s pain rating was based solely on his

subjective complaints. Dr. Alden did not note that plaintiff was having any

difficulty moving on the days that he examined plaintiff. There was no indication

from the physical therapy notes at Dr. Alden’s clinic that plaintiff was unable to do

the exercises during treatment. A note in the file from March 18, 2016 showed that

plaintiff discharged himself from physical therapy.

At the time of the first examination, Dr. Alden understood that plaintiff was

working “full duty” as a welder. Plaintiff did not request a note from Dr. Alden to

reduce him to a lighter duty. A nurse practitioner in the office took plaintiff off of

work until he could see an orthopedic physician.

Dr. Morrow

Dr. Kevin Morrow, who examined plaintiff in 2017, was qualified as an

expert in the field of neurosurgery. At that time, plaintiff complained of cervical,

thoracic and lumbar back pain, as well as radiating pain in his left leg down to his

big toe. Dr. Morrow concluded that plaintiff was “full strength, normal reflexes”

and “neurologically intact.” He reviewed plaintiff’s MRI films and saw nothing

remarkable on the cervical MRI, but did note a disc bulge and bone spurs.

Dr. Morrow opined that the most likely cause of the conditions he observed

in plaintiff’s cervical spine was “aging” and “degeneration.” He did not see

anything in the thoracic MRI. In the lumbar MRI, Dr. Morrow noted a minor

central disc bulge with possible nerve impingement that he concluded was less

likely caused by traumatic event. Dr. Morrow gave plaintiff his opinion that

surgery would not help him.

In his objective findings, Dr. Morrow was not able to explain where

plaintiff’s pain was originating from, but he concluded that the pain was “out of

proportions [sic]” to the findings. Dr. Morrow suggested to plaintiff that he

undergo a rheumatological examination to find other possible causes of his pain,

19-CA-520 C/W 19-C-473 5

such as arthritis or lupus. Dr. Morrow could not conclude if plaintiff’s pain was

caused by the accident. He further opined that plaintiff was not a candidate for

fusion surgery at C3-4 or lumbar fusion surgery at L5-S1.

Defendant did not hire Dr. Morrow to testify, rather he was seen by plaintiff

on his own initiative through the University Medical Center clinic.

Dr. Todd

Dr. Andrew Todd was called by the defense and accepted as a medical

doctor with expertise in the specialty of orthopedic surgery and orthopedic spinal

surgery. He first saw plaintiff on October 19, 2018, at which time plaintiff claimed

having back and neck pain related to an automobile accident that occurred on

October 16, 2015. At the time of the visit, plaintiff reported having intense neck

pain that radiated into his shoulder, chest and shoulder blade. He also reported

symptoms in his index finger, as well as numbness in his thigh and shin, calf and

big toe. Plaintiff did not report radiating pain to Dr. Liechty one month later on

November 14, 2018. At the time Dr. Todd saw plaintiff, he was only on one

medication and was not in physical therapy.

Dr. Todd reviewed all the medical records provided to him, including MRIs

of the neck and back. After an examination, Dr. Todd concluded that plaintiff had

a full range of motion in his neck without pain when bending it forward and

backward, with exception of slight pain when doing the Spurling maneuver, which

is used to elicit nerve compression symptoms. He evaluated plaintiff’s shoulder

and found no gross weakness. He examined plaintiff’s lumbar spine and there

seemed to be “some exaggeration of pain on examination,” and he had full

extension. Dr. Todd stated that it was not normal to see a full range of motion in

someone reporting the level of pain that plaintiff did. He concluded that there was

amplification of pain when plaintiff reported back pain resulting from a maneuver

that did not involve the back, and similar amplification of pain involved with light

19-CA-520 C/W 19-C-473 6

touches to the skin on plaintiff’s back. Dr. Todd also noted that the pain reported

by plaintiff in his left leg did not correspond to any level of his spine.

Dr. Todd’s review of the 2016 MRI of plaintiff’s cervical spine showed

multilevel disc desiccation, meaning that the discs appear to have lost some of their

water content. Plaintiff had also developed bone spurs. Plaintiff’s lumbar spine

was slightly desiccated at L5-S1, and Dr. Todd saw protrusions or bulge of disc

material with a tear in the outer covering of the disc that was in contact with the S1

nerve root. He opined that that the 2017 MRI images were very similar to the 2016

images.

Dr. Todd described the findings of the MRIs as being degenerative in nature,

and opined that “more likely than not, the findings pre-dated the accident in

question.”2 In support of this conclusion, Dr. Todd explained that bone spurs form

because of changes and stresses around a disc over time. He estimated that 30-40

percent of the asymptomatic population in plaintiff’s age range have the sort of

pathology that is shown in plaintiff’s cervical films. He also saw minor arthritis in

some of plaintiff’s joints, and said that annular tears are not uncommon and occur

as part of the degenerative process. Dr. Todd believes that plaintiff’s conditions

pre-existed the accident, but that accident caused the conditions to become

symptomatic. He disagreed with Dr. Liechty’s recommendation for fusion

surgeries, and said that he had serious concerns about the surgeries offered to

plaintiff.

On cross examination, Dr. Todd explained that he was not provided with any

of plaintiff’s medical records from before the accident, and there is no objective

medical data that shows plaintiff’s symptoms began because of this accident. Dr.

2
At that time, plaintiff’s counsel requested a bench conference, at which time he argued that Dr. Todd
was testifying beyond what was in his report. Defense counsel responded that Dr. Todd had mentioned
these finding in the report, using the language “Exacerbation of his very minor degenerative findings in
his cervical spine.” This testimony forms the basis of plaintiff’s second assignment of error.

19-CA-520 C/W 19-C-473 7

Todd clarified that any assessment made of plaintiff was based solely on plaintiff’s

own assertions.

Dr. Peter Liechty

The video deposition of Dr. Peter Liechty was played for the jury, but was

not transcribed for the record. A transcript from Dr. Liechty’s deposition does not

otherwise appear in the record. The record does contain a three page summary of

plaintiff’s evaluation sent from Dr. Liechty to plaintiff’s counsel.3 The letter stated,

in relevant part, Dr. Liechty’s conclusions that the rear-end collision more likely

than not caused plaintiff’s pain and that “surgical intervention” offered plaintiff

“the definitive treatment option.”

ASSIGNMENTS OF ERROR

1. The jury erred in finding that plaintiff was not injured as a result of the
October 16, 2015 accident.

2. The trial court erred in allowing the defendants’ medical expert to testify
about new expert opinions regarding causation, which were not contained
in his La. C.C.P. art. 1465 detailed written report.

3. The trial court erred in denying plaintiff’s motion for judgment
notwithstanding the verdict, in the alternative, for new trial and,
alternatively, for additur.

LAW AND ANALYSIS

In his first assignment of error, plaintiff contends that the jury erred in

finding that he was not injured in the October 16, 2015 accident.

Whether an accident caused a person's injuries is a question of fact which

should not be reversed on appeal absent manifest error. Housley v. Cerise, 579

So.2d 973, 979 (La.1991). Louisiana jurisprudence has also established that when a

person was in good health prior to an accident, and symptoms appear after the

accident, that person's injuries are presumed to have resulted from the accident.

Bernard v. Hartford Insurance Co., 09-71 (La. App. 3 Cir. 6/3/09), 12 So.3d 1098,

3
The exhibit is identified in the record as “Plaintiff 1D In Globo.”

19-CA-520 C/W 19-C-473 8

1100-01, writ denied, 09-1524 (La.10/9/09), 18 So.3d 1285. That presumption

does not apply and/or is overcome should the jury conclude the plaintiff was not

credible and the claimed injuries were not caused by the accident. Dore v. Mitsui

Sumitomo Ins., USA, Inc., 12-875 (La. App. 3 Cir. 5/22/13), 117 So.3d 231, 235,

writ denied, 13-1953 (La. 11/8/13), 125 So.3d 1094

The finding reached by the jury, that plaintiff did not sustain injuries from

the accident, is a finding of fact. The standard of review for a factual finding by a

jury is articulated in Rosell v. ESCO, 549 So.2d 840 (La.1989). In that case the

Louisiana Supreme Court stated that it is well settled that an appellate court may

set aside a factual finding of a trial court or a jury only where the finding was

based on a “manifest error” or was “clearly wrong.” Id. at 844. Further, where

there is a conflict in the testimony, a trial court's or a jury's reasonable evaluations

of credibility and reasonable inferences of fact should not be disturbed on appeal,

even though the appellate court may feel that its own evaluations and inferences

are as reasonable as those of the trial court or the jury. Id. Finally, where there are

two permissible views of the evidence, the trial court's or the jury's choice between

them cannot be manifestly erroneous or clearly wrong. Id. See also Williams v.

Walgreen Louisiana Co., 14-716 (La. App. 5 Cir. 2/25/15), 168 So.3d 812, 828,

writ denied sub nom. Williams v. Walgreens Louisiana Co., 15-0610 (La. 6/1/15),

171 So.3d 262, and writ denied sub nom. Williams v. Walgreens Louisiana Co.,

15-0613 (La. 6/1/15), 171 So.3d 262.

In the instant matter, plaintiff contended that he sustained various injuries as

a result of the accident on October 16, 2015. However, the trier of fact is not

bound to accept a plaintiff's perception, or any other witness' perception, of the

nature and extent of his injuries. Ladner v. Gov't Employees' Insurance Co., 08-

0323 (La. App. 4 Cir. 10/8/08), 992 So.2d 1098, 1102, writ denied, 08–2864

(La.2/6/09), 999 So.2d 783. At trial, plaintiff’s claim that he had not been in a

19-CA-520 C/W 19-C-473 9

prior accident was shown to be false. The jury was presented with photographs of

the damage to the back of plaintiff’s vehicle, which appeared to be minimal.

Plaintiff testified that he reported to work in the weeks following the accident and

sought out legal counsel before receiving a medical evaluation. There was

evidence that conservative treatment helped plaintiff’s symptoms, which plaintiff

denied. Plaintiff chose not to pursue other conservative treatments as an alternative

to surgery. Testimony from several doctors who had treated and evaluated plaintiff

over time demonstrated that some of plaintiff’s complaints of pain were

exaggerated and not consistent with the injuries he claimed to have. Medical

testimony also included opinions that plaintiff’s complaints were not accident

related, but instead were degenerative in nature and, more likely than not, existed

before the accident.

Based on our review of the record, we cannot say that the jury was clearly

wrong in finding that plaintiff was not injured as a result of the accident. The jury

made a determination that one view of the evidence was more credible than the

other, and we are not permitted to disturb reasonable evaluations of credibility and

reasonable inferences of fact on appeal. Therefore, we must uphold the jury's

findings of fact in this case.

Second Assignment of Error

In his second assignment of error, plaintiff contends that the trial court erred

in allowing Dr. Todd, an expert retained by defendant, to give an opinion regarding

causation of plaintiff’s alleged injuries as pre-existing the accident, which he

argues was not contained in his La. C.C.P. art. 1465 detailed written report.

Plaintiff claims that, by allowing Dr. Todd to present a new theory of causation at

trial, his case was unfairly prejudiced.

The record shows that plaintiff’s counsel requested a bench conference to

assert that Dr. Todd was raising a new theory of causation in his trial testimony.

19-CA-520 C/W 19-C-473 10

The trial court disagreed with plaintiff’s characterization of the testimony as a new

theory, and cited to specific language in Dr. Todd’s report where he makes

reference to plaintiff’s pre-existing or degenerative changes.

THE COURT:

But it says that there's an exacerbation of minor degenerative
changes. I mean, that’s -- that is the --
. . .

Exacerbation indicates that there has been some aggravation of
something that was already present.

Plaintiff’s counsel appeared to withdraw any challenge after being assured by the

trial court that he would be able to raise the issue during the cross-examination of

Dr. Todd.

MR. REDMANN [PLAINTIFF’S COUNSEL]:

It's stunning that he can say that those words mean that what I
meant was he wasn't hurt in this accident. I don't know how to fix it. I
mean, the words came out of his mouth.

MR. GAUDIN [DEFENSE COUNSEL]:

You can cross-examine on these issues.

THE COURT:

Okay. I'll allow you to cross-examine him on that, okay?

MR. REDMANN:

All right. I'd like -- Maybe after the jury breaks I can proffer the
report and put an objection on the record.

Plaintiff’s counsel did, in fact, specifically ask Dr. Todd on cross-examination

about his observation that plaintiff had a condition that pre-existed before the

accident.

MR. REDMANN:

Okay. Now, I got kind of thrown for a loop because I didn't
understand it from reading your report, but you indicated that the disc in his
neck and the disc in his back that are -- that have issues, that showed up, and
that Dr. Liechty talked about in his court deposition, they may have been bad
and, in your opinion, they had problems even before the accident; but what's

19-CA-520 C/W 19-C-473 11

significant, if I understood your testimony is, these discs were not generating
any symptoms.

It does not appear from the record that plaintiff’s counsel later made a formal

objection to Dr. Todd’s testimony regarding a pre-exiting injury, nor did counsel

proffer a copy of Dr. Todd’s report into evidence.

In order to preserve an evidentiary issue for appellate review, it is essential

that the complaining party enter a contemporaneous objection to the evidence and

state the reasons for the objection. Matthews v. Breaux, 04-958 (La. App. 5 Cir.

2/15/05), 896 So.2d 1146, 1150. The failure to make a contemporaneous objection

in the trial court waives the right of a party to complain about the ruling on appeal.

Hyland v. American Guarantee and Liability Insurance Company, 04-305 (La.

App. 5 Cir. 9/28/04), 885 So.2d 30, 34. Here, while counsel for plaintiff arguably

objected to Dr. Todd’s testimony by requesting a bench conference, it appears that

the objection was withdrawn when counsel cross-examined Dr. Todd on the same

subject matter. Further, even if we deem this issue to be preserved, Dr. Todd’s

report was not proffered into evidence and preserved pursuant to La. C.C.P. art.

1636. Accordingly, we have no basis upon which to consider plaintiff’s argument.

We therefore find this assignment to be without merit.

Third Assignment of Error

In his third assignment of error, plaintiff argues that the trial court erred in

denying his motion for judgment notwithstanding the verdict (JNOV), motion for

new trial and, alternatively, for additur.

JNOV

The standard to be used in determining whether a JNOV has been properly

granted was set forth in Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00),

774 So.2d 84, 89:

A JNOV is warranted when the facts and inferences point so strongly
and overwhelmingly in favor of one party that the court believes that

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reasonable jurors could not arrive at a contrary verdict. The motion
should be granted only when the evidence points so strongly in favor
of the moving party that reasonable men could not reach different
conclusions, not merely when there is a preponderance of evidence for
the mover. If there is evidence opposed to the motion which is of such
quality and weight that reasonable and fair-minded men in the
exercise of impartial judgment might reach different conclusions, the
motion should be denied. In making this determination, the court
should not evaluate the credibility of the witnesses and all reasonable
inferences or factual questions should be resolved in favor of the non-
moving party.

The standard of review for a JNOV on appeal is a two-part inquiry. In

reviewing a JNOV, the appellate court must first determine if the trial court erred

in granting the JNOV. This is done by using the aforementioned criteria just as the

trial judge does in deciding whether or not to grant the motion. After determining

that the trial court correctly applied its standard of review as to the jury verdict, the

appellate court reviews the JNOV using the manifest error standard of review. Id.

If reasonable people could have arrived at the same verdict, given the evidence

presented to the jury, then the JNOV is improper. Miller v. PNK, 11–216 (La. App.

3 Cir. 10/5/11), 76 So.3d 122, 130 (citing Anderson v. New Orleans Pub. Serv.,

Inc., 583 So.2d 829 (La.1991)).

As we have already reviewed the jury's findings and found no manifest

error, we cannot say that the jury's verdict as finally rendered was unreasonable or

clearly contrary to the law and the evidence. Accordingly, we find no error in the

trial court’s denial of plaintiff’s judgment notwithstanding the verdict.

Motion for New Trial

The standard of review for the denial of a motion for new trial is abuse of

discretion. Davis v. Coregis Ins. Co., 00-475 (La. App. 3 Cir. 12/27/00), 789 So.2d

7, writ denied, 01-292 (La. 3/30/01), 788 So.2d 1192. La C.C.P. art. 1972 states,

in relevant part:

A new trial shall be granted, upon contradictory motion of any party,
in the following cases:

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(1) When the verdict or judgment appears clearly contrary to
the law and the evidence.

For the reasons previously stated, we find no abuse of discretion in the trial

court’s ruling that the evidence presented at trial supported the jury’s verdict, and

that the verdict is not contrary to law.

Additur

With respect to plaintiff's complaint regarding the denial of his motion for

additur, plaintiff has failed to brief this assignment of error on appeal. All

assignments of error must be briefed and the appellate court may consider as

abandoned any assigned error that has not been briefed. Accordingly, we find

plaintiff has abandoned this assignment of error, and therefore decline to consider

the merits of this assignment. La. U.R.C.A. 2-12.4; Johnson v. Spurlock, 07-949

(La. App. 5 Cir. 5/27/08), 986 So.2d 724, 729, writ denied, 08-1400 (La. 7/25/08),

986 So.2d 670 (citing Silbernagel v. Silbernagel, 06-879 (La. App. 5 Cir. 4/11/07),

958 So.2d 13, 20).

WRIT 19-C-473

After the completion of trial, on May 16, 2019, defendants filed a motion to

tax costs against plaintiff in the amount of $53,586.534 pursuant to La. C.C.P. art.

1920, which provides:

Unless the judgment provides otherwise, costs shall be
paid by the party cast, and may be taxed by a rule to show
cause.
Except as otherwise provided by law, the court may
render judgment for costs, or any part thereof, against any
party, as it may consider equitable.

In opposing the motion to tax costs, plaintiff argued that he had been granted forma

pauperis status on June 11, 2019, and that taxing costs against him under that

circumstance would be inequitable, especially considering the evidence of his

4
This amount represents defendant’s total claim for expert fees, depositions, medical records and court
costs.

19-CA-520 C/W 19-C-473 14

injury presented at trial. Plaintiff further argued that the expert fees were

excessive, specifically for defendants’ vocational rehabilitationist, Barney

Hegwood, who billed over $22,000.

A hearing on the motion was held on August 7, 2019, at the conclusion of

which the trial court granted defendants’ motion, awarding costs against plaintiff in

the amount of $25,000. A transcript of the hearing is not included in the writ

application or in the record on appeal; however, the trial court stated in its

September 19, 2019 written reasons for judgment:

After reviewing the evidence submitted by defendants, in
particular the invoice from Barney Hegwood, the court exercised its
discretion under La. C.C.P. article 1920 and reduced the total costs
recoverable by defendants to $25,000.00. The court finds this amount
is equitable. This matter took four days to try in front of a jury.
Defendants incurred considerable costs defending plaintiff’s
allegations, and the jury found plaintiff suffered no injury as a result
of the accident. Considering this verdict, the court finds it is
inequitable to make defendants bear all costs of the defense.
Furthermore, plaintiff did not proceed to trial in forma pauperis.
These trial costs were incurred prior to plaintiff applying for this
status. Plaintiff did not apply for this status until June 7, 2019, almost
two months after trial and after defendants submitted their motion to
tax costs.

Plaintiff filed a timely writ application with this Court to challenge the trial court’s

ruling. In an order dated November 18, 2019, plaintiff’s writ application was

consolidated with his pending appeal, based upon a finding that the issues were

interrelated.

LSA–C.C. Art. 1920 affords the trial court broad discretion in assessing

court costs and allows the trial court to render judgment for costs against any party

as it may consider equitable. Earles v. Ahlstedt, 591 So.2d 741 (La. App. 1st

Cir.1991). A trial court's assessment of costs can be reversed by an appellate court

only upon a showing of abuse of discretion. State v. Nicholls College Foundation,

592 So.2d 419 (La. App. 1st Cir.1991), writ denied, 593 So.2d 651 (La.1992).

After a review of the application, and on the showing made, we find no abuse of

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discretion in the trial court’s assessment of costs in this matter. Accordingly, we

deny relief.

DECREE

For the reasons assigned, we affirm the jury’s verdict regarding damages and

find no error in the trial court’s denial of plaintiff’s judgment notwithstanding the

verdict and motion for new trial. We further find no abuse of discretion in the trial

court’s assessment of costs against plaintiff.

AFFIRMED

19-CA-520 C/W 19-C-473 16

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MAY 28, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-CA-520
C/W 19-C-473
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE ELLEN SHIRER KOVACH (DISTRICT JUDGE)
EDWARD L. MORENO (APPELLANT) KELLY S. RIZZO (APPELLANT) ANDRE' C. GAUDIN (APPELLEE)

MAILED
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