Ronald Hicks v. USAA General Indemnity Company, Robert L. Harger, Jr., R.L. Harger and Associates, Inc. and Harger and Company, Inc.

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 0552

RONALD HICKS

VERSUS

USAA GENERAL INDEMNITY COMPANY, ROBERT L. HARGER, JR.,
R.L. HARGER AND ASSOCIATES, INC., AND HARGER AND COMPANY,
INC.

JUDGMENT RENDERED: MAR 2 5 2021

Appealed from the
Eighteenth Judicial District Court
In and for the Parish of Pointe Coupee • State of Louisiana
Docket Number 47, 326 • Division A

The Honorable J. Kevin Kimball, Judge Presiding

Brent E. Kinchen ATTORNEYS FOR APPELLANTS
William C. Helm DEFENDANTS— USAA General
Stephen F. Butterfield Indemnity Company and
Baton Rouge, Louisiana Robert L. Harger, Jr.

Patrick W. Pendley ATTORNEYS FOR APPELLEE

Stanley P. Baudin PLAINTIFF— Ronald Hicks
Nicholas R. Rockforte
Evan P. Fontenot
Plaquemine, Louisiana
and

Rick Ward, III
Port Allen, Louisiana

f BEFORE: MCCLENDON, WELCH, THERIOT,
P r tIOLDRIDGE, AND VOLFE, JJ.
J 4 - 1.4
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rC* 6 nw k46, VA

WELCH, J.

In this action for damages arising out of a motor vehicle accident, the

defendants appeal a judgment rendered in accordance with a jury verdict, awarding

damages to the plaintiff for injuries that he sustained as the result of the accident.

For reasons that follow, we affirm the judgment.

I. FACTUAL AND PROCEDURAL HISTORY

On October 1, 2015, Ronald Hicks, an equipment operator and farm laborer,

was a passenger in a four -door heavy- duty flatbed truck traveling westbound on

Highway 190 in Pointe Coupee Parish when it was rear- ended by an automobile

driven by Robert L. Harger, Jr. Mr. Harger was traveling at approximately sixty to

sixty-five miles per hour with the traffic and never " hit the brakes" before crashing

into the truck. As a result of the collision, the passenger side of the truck was

pushed up and along the railing of the bridge on which the occupants were

traveling for approximately fifty to sixty feet before falling back down onto the

roadway. At the time of the accident, Mr. Hicks was in the course and scope of his

employment with Nickie Rockforte Farms, LLC ( Rockforte Farms), as were the

driver of the truck and a rear -seat passenger.

On September 27, 2016, Mr. Hicks filed a Petition for Damages against Mr.

Harger and USAA General Indemnity Company, the liability insurer of Mr.

Harger' s vehicle, alleging that he sustained personal injuries as a result of the

accident, including injuries to his neck, back, and arm. R.L. Harger and

Associates, Inc. and Harger and Company, Inc. were also named as defendants, but

they were subsequently dismissed in consideration of the parties' stipulation that

Mr. Harger was liable for the accident at issue.'

Following the accident, Mr. Hicks received workers' compensation benefits for his injuries
from Louisiana Workers' Compensation Corporation ( LWCC), the workers' compensation

insurer of his employer. On October 6, 2016, LWCC filed a Petition of Intervention in Mr.

2

After a four day trial, from May 14 through May 17, 2018, the jury rendered

a unanimous verdict, finding that Mr. Hicks was injured as a result of the October

1, 2015 accident and awarding Mr. Hicks the following damages:

Past Medical Expenses $ 1101410. 00

Future Medical Expenses $ 285, 000. 00

Past and Future Physical Pain & Suffering $ 30000.00

Past and Future Mental Anguish $ 30000.00

Past and Future Loss of Enjoyment of Life $ 55, 500. 00

Disability $ 55, 500. 00

Past Lost Wages $ 365000. 00

Loss of Earning Capacity $ 156, 000. 00

TOTAL $ 1, 2985410. 00

On May 25, 2018, the trial court signed a judgment in conformity with the

jury' s verdict.2 Thereafter, the defendants filed a Motion for New Trial, or in the
Alternative, Motion for Remittitur. On August 9, 2018, following a hearing, the

trial court denied the motion and signed a judgment. The defendants now

suspensively appeal both the May 25, 2018 and August 9, 2018 judgments of the

trial court.3

Hicks' s lawsuit, seeking recovery or reimbursement of all workers' compensation payments to
Mr. Hicks.

2 Pursuant to a stipulation of the parties, the judgment also set forth that it was rendered in favor
of LWCC recognizing its entitlement to recovery or reimbursement of amounts paid to Mr.
Hicks.

s
Generally, the denial of a motion for new trial is a non -appealable interlocutory judgment. See
La. C. C. P. art. 2083. However, the Louisiana Supreme Court has directed us to consider an
appeal of the denial of a motion for new trial as an appeal of the judgment on the merits as well,
when it is clear from the appellant' s brief that he intended to appeal the merits of the case.
Jackson v. Wise, 2017- 1062 ( La. App. 1St Cir. 4/ 13/ 18), 249 So. 3d 845, 849- 50, writ denied,
2018- 0785 ( La. 9/ 21/ 18), 252 So. 3d 914. Furthermore, when an unrestricted appeal is taken
from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings
prejudicial to him, in addition to the review of the final judgment. Jackson, 249 So. 3d at 850.
Thus, the interlocutory denial of a motion for new trial is subject to review on appeal in
connection with the review of an appealable judgment in the same case. Id. Herein, it is obvious

3

II. ASSIGNMENTS OF ERROR

On appeal, the defendants raise several assignments of error that can be

summarized as follows: ( 1) the trial court legally erred in: ( a) excluding evidence

of a drug test taken by Mr. Hicks, which was positive for cocaine, during his

treatment with Dr. Joseph Tumipseed, Mr. Hick' s pain management doctor, and

b) denying the defendants' request for an additional medical examination ( AME)

of Mr. Hicks pursuant to La. C. C. P. art. 1464, and that these two evidentiary legal

errors were prejudicial, interdicted the fact- finding process of the jury, and warrant

the de novo review of the record by this Court; ( 2) the trial court erred in denying

the defendants' motion for new trial based on Mr. Hicks' s failure to provide his

2017 W-2 before trial; and ( 3) with regard to damages, ( a) the jury erred in

awarding damages for future medical treatment because Mr. Hicks' s failed to

prove that future treatment would more probable than not be required; ( b) the jury

erred in awarding Mr. Hicks damages for loss of earning capacity since Mr. Hicks

continued to work full time after the accident and through trial; and ( c) the jury

abused its discretion in awarding excessive general damages.

III. LAW AND DISCUSSION

A. Pre -Trial Evidentiary Rulings

First on appeal, the defendants contend that certain evidentiary errors were

prejudicial and interdicted the jury' s fact-finding process.' Specifically, the

defendants maintain that the trial court' s rulings ( 1) granting the plaintiff's motion

in limine to exclude evidence that Mr. Hicks had been terminated by Dr.

Turnipseed for cocaine use during his medical treatment, and ( 2) denying their

from the defendants' brief that they intended to appeal the judgment on the merits. Thus, we will
treat the appeal accordingly.

4 Because a finding of an evidentiary error may affect the applicable standard of review, in that
this court must conduct a de novo review if the trial court commits an evidentiary error that
interdicts the fact-finding process, alleged evidentiary errors must be addressed first on appeal.
Devall v. Baton Rouge Fire Dept., 2007- 0156 ( La. App. 1St Cir. 11/ 2/ 07), 979 So. 2d 500, 502.

9

motion to compel an AME, constituted legal and reversible error. Moreover, the

defendants argue that based on these errors, we should conduct a de novo review of

the record for damages.

The standard of review for evidentiary rulings of a trial court is abuse of

discretion. Bristol v. Gonzales Police Department, 2017- 0675 ( La. App. 1St Cir.

12/ 21/ 17), 240 So. 3d 232, 243- 44, writ denied, 2018- 0146 ( La. 3/ 23/ 18), 239

So. 3d 296. If the trial court has abused its discretion in its evidentiary rulings,

such that the jury verdict is tainted by prejudicial errors, the appellate court should

conduct a de novo review. See McLean v. Hunter, 495 So. 2d 1298, 1304 ( La.

1986). Errors are prejudicial when they materially affect the outcome of the trial

and deprive a party of substantial rights. Evans v. Lungrin, 97- 0541 ( La. 2/ 6/ 98),

708 So. 2d 731, 735. Thus, a de novo review should not be undertaken for every

evidentiary error, but should be limited to errors that interdict the fact- finding

process. Wingfield v. State ex rel. Dept. of Transp. and Development, 2001-

2668 ( La. App. 1St Cir. 11/ 8/ 02), 835 So. 2d 785, 799, writs denied, 2003- 0313,

2003- 0339, 2003- 0349 ( La. 5/ 30/ 03), 845 So. 2d 1059- 60, cert. denied, 540 U.S.

950, 124 S. Ct. 419, 157 L.Ed.2d 282 ( 2003).

Consequently, in reaching a decision on an alleged evidentiary error, the

court must consider whether the challenged ruling was an abuse of the trial court' s

discretion and whether the error prejudiced the adverse party' s cause; for unless it

did, reversal is not warranted. Wallace v. Upjohn Co., 535 So. 2d 1110, 1118 ( La.

App. 1St Cir. 1988), writ denied, 539 So. 2d 630 ( La. 1989); La. C. E. art. 103.

Moreover, the party alleging error has the burden of showing the error was

prejudicial to the case. Brumfield v. Guilmino, 93- 0366 ( La. App. 1St Cir.

3/ 11/ 94), 633 So. 2d 903, 911, writ denied, 94- 0806 ( La. 5/ 6/ 94), 637 So. 2d 1056.

Ultimately, the determination is whether the error, when compared to the record in

E

its totality, has a substantial effect on the outcome of the case. Wallace, 535 So. 2d

at 1118.

1. Evidence of Cocaine Use

Before trial, Mr. Hicks filed a motion in limine seeking to exclude the

introduction of any evidence or discussion regarding the results of a drug test he

contended was inaccurate. The defendants argued, however, that Mr. Hicks had

signed a contract with Dr. Turnipseed agreeing to refrain from illegal drug use

during his treatment with Dr. Turnipseed, and that Mr. Hicks' s violation of the

agreement was highly relevant as to Mr. Hicks' s credibility and his need for future

medical treatment. After a hearing, the trial court granted the motion, stating in its

judgment that " no such evidence or argument can be presented to the jury

concerning the drug screen or [ Mr. Hicks' s] alleged illicit drug use." The trial

court found that, despite the alleged irregularities with the test, the prejudicial

effect of the evidence outweighed its benefit. Therefore, the trial court precluded

the defendants from putting on any evidence showing that Dr. Turnipseed had fired

Mr. Hicks as a patient because a drug test came back positive for cocaine, and Mr.

Hicks' s medical records were redacted to remove any reference to his use of

cocaine.

On appeal, the defendants argue that the trial court' s exclusion of evidence

that Dr. Joseph Turnipseed fired Mr. Hicks as a patient based on his cocaine use

was erroneous and that such ruling was prejudicial error because the cocaine issue

featured prominently at trial.

Louisiana Code of Evidence article 401 provides:

Relevant evidence" means evidence having any tendency to make
the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the
evidence.

Additionally, La. C. E. art. 403 provides:

on

Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of undue
delay, or waste of time.

At trial, the trial court allowed the defendants to bring up the fact that Mr.

Hicks was fired by Dr. Turnipseed for failing to follow the doctor' s recommended

treatment. Thereafter, on cross examination, Mr. Hicks was questioned about

being terminated by Dr. Turnipseed.' On redirect examination, Mr. Hicks was then

asked: " There was also a question about terminating a relationship with Dr.

Turnipseed at some point and the reason that that was done, can you tell us if it had

to do with you not taking your Neurontin medication?" Defense counsel

immediately objected. The defendants assert that this question misled the jury and

planted a seed in the mind of the jurors that Mr. Hicks was fired simply because of

failing to take a prescribed medication, rather than for taking an illegal drug.

Following a sidebar discussion, during which the defendants argued that counsel

for Mr. Hicks opened the door to a discussion of Mr. Hicks' s cocaine use, the trial

court sustained the defendants' objection and advised Mr. Hicks not to answer the

question. The defendants contend that the jury was deprived of learning the truth

and that the trial court' s exclusion of this evidence was legal error, requiring de

novo review.

s While talking about Dr. Turnipseed, defense counsel asked Mr. Hicks the following:

Q. And when you went to him, he gave you a contract to sign; is that correct?

A. Yes.

Q. And in that contract, you said you were going to follow his instructions and
not do certain things; right?

A. Yes.

Q. And he took a drug test of you and he terminated the relationship with you; is
that correct?

A. Yes.

7

After our review, we find no abuse of the trial court' s discretion nor do we

discern any prejudice or injustice resulting from the trial court' s ruling to exclude

Mr. Hicks' s alleged use of cocaine. The trial court thoroughly considered this

issue and found the evidence more prejudicial than probative. Further, given that

the defendants timely objected to the question by Mr. Hicks' s counsel regarding

Mr. Hicks' s failure to take certain medication and the trial court ordered Mr. Hicks

not to answer the question, we can find no prejudice to the defendants as to this

issue. Consequently, we find that a de novo review of the record based on the

exclusion of the evidence regarding the use of cocaine by Mr. Hicks is not

warranted.

2. Additional Medical Examination

The defendants also contend that it was legal error for the trial court to deny

their request for an AME by Dr. Chambliss Harrod, defendants' expert orthopedic

surgeon, and that this legal error was outcome determinative. They assert that their

request that Mr. Hicks be examined by Dr. Harrod was based on the " ever -

evolving surgical recommendations" of Mr. Hicks' s treating surgeon, Dr. Jorge

Isaza.

In November 2017, the defendants filed a motion to compel an AME,

alleging that one of Mr. Hicks' s treating physicians, Dr. Jason Smith, an

orthopedic specialist, was of the opinion that Mr. Hicks was not a candidate for

lumbar surgery, while another treating physician, Dr. Jorge Isaza, also an

orthopedic surgeon, believed that lumbar surgery might be necessary in the future.b

Therefore, according to the defendants, an AME was necessary to evaluate Mr.

Hicks' s condition and the extent of his alleged injuries. The defendants further

argued that they would be unfairly prejudiced in developing their defense as to Mr.

6
The defendants later asserted that two weeks before trial, Dr. Isaza changed his medical
opinion and recommended an anterior discectomy and fusion at L5 -S 1 for Mr. Hicks.

E

Hicks' s injuries and the extent of his injuries if they were not permitted to have

Mr. Hicks submit to an examination and evaluation by a physician of their own

choosing.

Mr. Hicks opposed the motion, contending that the two orthopedic

specialists and treating physicians of Mr. Hicks had already rendered their opinions

and a third opinion by a defense orthopedist was not necessary.' Mr. Hicks also

argued that Dr. Harrod was undeniably biased in favor of the defendants.

Moreover, Mr. Hicks maintained that Dr. Smith was provided to him by his

workers' compensation insurer and was in essence an independent doctor.

Not long after the defendants filed their motion to compel an AME by Dr.

Harrod, Mr. Hicks filed a motion seeking to strike the defendants' expert witness,

Dr. Robert Branstetter, and to exclude his testimony. Dr. Branstetter, a radiologist,

was hired by the defendants to review Mr. Hicks' s x-rays and MRI films. Mr.

Hicks asserted that the identification of Dr. Branstetter as a medical expert was

untimely as he was named after the court' s deadline to identify expert witnesses

had passed. In response, the defendants argued that since they had been unable to

schedule an AME of Mr. Hicks by Dr. Harrod, they sent the films to Dr.

Branstetter for review.8

At the hearing on the motions, during the discussion regarding the request

for an AME, the defendants argued that if they were not allowed to conduct an

examination, the failure to conduct an examination would be used against them.'

7 Mr. Hicks was also treated by Dr. Timothy Bowlin, an orthopedic surgeon, for his complaints
of neck and arm pain. On September 19, 2016, Dr. Bowlin performed two outpatient surgeries
for severe carpel tunnel syndrome and severe cubital tunnel syndrome, which were nerve
compression injuries to Mr. Hicks' s left wrist and elbow that Dr. Bowlin directly related to the
accident.

8
The defendants had attempted to schedule an examination by Dr. Harrod, but discussions
between counsel for the parties regarding the parameters of the examination proved
unsuccessful.

9 The following colloquy took place:

After the hearing, the trial court determined that although Mr. Hicks had placed the

physical condition of his body in controversy by filing suit alleging personal

injuries, " good cause" did not exist for an AME by Dr. Harrod. However, the trial

court also ruled that Dr. Harrod or Dr. Branstetter could examine Mr. Hicks' s

medical records and testify based on those records.

Louisiana Code of Civil Procedure article 1464, 10 which governs AME' s

provides, in pertinent part:

A. When the mental or physical condition of a party, ... is in
controversy, the court in which the action is pending may order the
party to submit to an additional medical opinion regarding physical or
mental examination by a physician or to produce for examination the
person in his custody or legal control, except as provided by law....
The order may be made only on motion for good cause shown and
upon notice to the person to be examined and to all parties and shall
specify the time, place, manner, conditions, and scope of the

examination and the person or persons by whom it is to be made.

B. Regardless of the number of defendants, a plaintiff shall not be
ordered to submit to multiple examinations by multiple physicians
within the same field of specialty for the same injury exceptfor good
cause shown. [ Emphasis added.]

The Court:

I quess my big question regarding whether or not to do the IME [ sic], is I
read everything and it looks like there was a lot of stuff in there that the IME [ sic]
is going to consist of ... a twenty or thirty minute visit....
you can look at it two ways, really, you can say, oh, that' s not very
intrusive, but then at the same time you can look at it and say, what could he
possibly learn by looking at him for twenty minutes, that he couldn' t learn from
the medical records. So — okay.

Mr. Kinchen:
Here' s the response to that, Judge and I understand your point. I

guarantee you that my friend here, at trial, is going to argue that he didn' t even
see him, Judge — I mean Jury, how can he make an opinion, he didn' t even look at

him. So, that' s why I need the IME [ sic].

io Louisiana Code of Civil Procedure Article 1464 was amended by Acts 2017, No. 381, § 1, eff.
June 23, 2017. The defendants filed their motion to compel an AME of Mr. Hicks by Dr. Harrod
in November 2017. The amendment provided that an examination ordered under La. C. C. P. art.
1464 is now referred to as an " additional medical examination" (" AME") as opposed to an
independent medical examination" (" IME"). Relevant to this matter, La. C. C. P. art. 1464 now

specifically provides that " a plaintiff shall not be ordered to submit to multiple examinations by
multiple physicians within the same field of specialty for the same injury except for good cause."

10

In accordance with La. C. C. P. art. 1464, the party moving for an AME must

demonstrate: ( 1) that the physical or mental condition of the party sought to be

examined is in controversy and ( 2) that good cause exists for requiring the party to

submit to the examination. Daigle v. City of Shreveport, 46, 429 ( La. App. 2" d

Cir. 10/ 5/ 11), 78 So. 3d 753, 761- 62, writ denied, 11- 2472 ( La. 2/ 3/ 12), 79 So. 3d

1027; Leaf v. Leaf, 2001- 1417 ( La. App. 4th Cir. 8/ 15/ 01), 796 So. 2d 42, 44- 45.

See also Schlagenhauf v. Holder, 379 U.S. 104, 118- 19, 85 S. Ct. 234, 242- 43, 13

L.Ed.2d 152 ( 1964). Notably, " good cause" is not defined in La. C. C. P. art. 1464.

Additionally, La. C. C.P. art. 1464 requires the mover to specify the " scope of the

examination." See Williamson v. Haynes Best Western of Alexandria, 595

So. 2d 1201, 1204 ( La. App. 4th Cir.), writ denied, 598 So. 2d 376 ( La. 1992) ( where

the court held that even in the event that the defendant demonstrated good cause,

the defendants failed to set forth the scope of an examination of the plaintiff

because it failed to specify tests to be performed on the plaintiff during the

examination).

The purpose of limiting examinations under La. C. C. P. art. 1464 is to restrict

the circumstances under which a party may be required to submit his mind or body

for examination, thus balancing considerations of the sanctity of the body and the

right to privacy with considerations of fairness in the judicial quest for truth.

Williams v. Smith, 576 So. 2d 448, 451 ( La. 1991). 11 See also Hogan v. Morgan,

2006- 0808 ( La. App. 1St Cir. 4/ 26/ 07), 960 So. 2d 1024, 1028, writ denied, 07- 1122

La. 9/ 14/ 07), 963 So. 2d 1000. Importantly, the ability of the moving party to

obtain the desired information by other means is relevant in deciding whether good

cause was shown for ordering an AME. See Williams, 576 So. 2d at 452; Daigle,

i l We note that in Williams, 576 So. 2d at 450, the Louisiana Supreme Court pointed out that
Federal Rule 35 of the Federal Rules of Civil Procedure is the source provision of La. C. C. P. art.
1464 and that Louisiana courts have relied on prior interpretations of Rule 35 by federal courts as
persuasive guides to the intended meaning of La. C. C. P. art.

11

78 So. 3d at 762. 12 The trial court has wide discretion in determining whether an

AME should be ordered, and that decision should be based upon the individual

facts and circumstances of each case. Daigle, 78 So. 3d at 762; Leaf, 796 So. 2d at

45.

In this matter, we agree with the trial court that Mr. Hicks placed his

physical condition " in controversy" by filing this suit for damages for personal

injuries. Therefore, the first requirement of La. C. C. P. article 1464 was satisfied.

It is the second requirement— whether " good cause" existed for ordering Mr. Hicks

to submit to an AME— that is at issue.

After hearing the argument of counsel at the hearing on the motion to

compel, the trial court stated:

Okay, Guys, from everything I' ve read, I find that – I think that
the defense can – has already gotten all of the information with regard
to the MRI' s. The doctors have all been deposed, and I think that' s
why I was asking. I think it was the Daigle case that set forth these
factors as to the burden.

Of course, you know, the cases go back and they talk about two
things. One, is the matter in controversy? Of course it' s in
controversy, because they' re suing for injuries. So, that' s a no-
brainer. But, the question of good cause, it looks like a lot of the
courts have been finding that you' ve got to have a burden of good
cause and based on that Daigle case, the factors were whether the info
sought can be obtained through least intrusive means, which, you
know, looking at what I' ve read, yes, I think it can. Whether
plaintiff' s doctors are available for deposition. They have been
deposed.

You know, there' s a question about the doctor' s reputation
that' s been brought up, whether the doctor' s plaintiff or defense. I
mean, I think that' s kind of going to go in every case, you' re going to
have plaintiff' s lawyers hiring plaintiff' s oriented doctors and vice
versa. And then the last one, the treating physician' s has already had

I think that' s the factors I' ve read in Daigle, has more experience
with the plaintiff' s condition.

1St
12 See also Williamson v. Hartford Casualty Insurance Company, 2017- 1073 ( La. App.
Cir. 9/ 6/ 17), 2017 WL 3888827 ( unpublished writ action) ("[ m] ere relevance of the information
sought in the examination is not sufficient to establish good cause, and the ability of the movant
to obtain such information through other methods is germane to the determination of good
cause," c1 Schlagenhauf, 85 S. Ct. at 242- 43, 379 U. S. at 118, 13 L.Ed.2d 152.)

12

I just feel that from what I understand the perimeters of this,
whether it' s an AME or DME or IME, whatever it may be, I just find
that the twenty minutes gained from that would probably not have a
whole lot of bearing on the doctor' s finding — the IME' s finding,
because he' s got to look at the — and naturally to determine whether
he' s going to have surgery or not, you' re going to look at the MRI' s
and other medical records. So, I' m going to find that there hasn' t
been good cause shown for the IME.[ 13]

In support of their argument that the trial court erred in refusing to allow the

additional medical examination by Dr. Harrod, the defendants allege that Mr.

Hicks' s counsel improperly used the pretrial ruling prohibiting an examination, to

undermine the credibility and reliability of Dr. Harrod' s medical opinion and to

mislead the jury, by stating in closing arguments that Dr. Harrod' s testimony was

not credible as he had not examined Mr. Hicks. Furthermore, the defendants

particularly pointed out that during deliberations, the jury asked the question, " Was

Dr. Harrod allowed to see him?" The trial court declined to answer the jury' s

question. 14 The defendants now assert that, unquestionably, the jury' s inquiry

proved that the issue of an AME weighed heavily in this matter and that the trial

court' s error irreparably tainted the jury' s verdict, requiring a de novo review by

this court. We disagree.

The record shows that following the October 1, 2015 accident, Mr. Hicks

was originally referred to Dr. Jason Smith, an orthopedic surgeon, as part of Mr.

13 We note that the defendants did not seek supervisory review with this court of the denial of
their motion to compel the additional medical examination. Rather, the defendants sought
review of the denial of their motion to continue the trial, based on their need for an additional
medical examination by Dr. Harrod. The writ application was denied on the showing made. See
Hicks v. USAA General Indemnity Company, 2018- 0613 ( La. App. 1St Cir. 5/ 10/ 18), 2018
WL 2175892.

14 This question was one of a list of three that the jury asked the trial court to answer. The
questions were:

1) What was the first offer?
2) Was Dr. Harrod allowed to see him?
3) Will he get a disability check from the state?

After discussion with counsel, the trial court concluded, and counsel agreed, that none of the
questions should be answered by the court. Thereafter, the trial court advised the jury that it
could not answer its questions and that to the extent the questions could be answered from the
evidence, the jury heard the evidence and was the decider of facts.

13

Hicks' s workers' compensation claim. Upon examination of Mr. Hicks, Dr. Smith,

whose deposition was read at trial, found no evidence of obvious trauma. Rather,

he determined that the MRI of Mr. Hicks' s lower back was indicative of

degenerative disc disease and that the accident most likely aggravated the

preexisting underlying degenerative condition. Further, although Dr. Smith did not

believe that Mr. Hicks exaggerated his pain, he was of the opinion that Mr. Hicks

was not a surgical candidate. Mr. Hicks subsequently ceased treatment with Dr.

Smith, who last saw him on January 6, 2017. 1'

Mr. Hicks was later referred to Dr. Isaza by his attorney. Dr. Isaza was

initially having trouble identifying the primary source of Mr. Hicks' s lumbar pain.

However, after a selective nerve block procedure shortly before trial, Dr. Isaza and

Dr. Turnipseed agreed that the majority of Mr. Hicks' s pain was emanating from

his L5- S1 disc. On April 24, 2018, approximately three weeks before trial, Dr.

Isaza recommended an anterior discectomy and fusion at L5 -S 1.

After receiving notice of the surgical recommendation by Dr. Isaza, the

defendants sought a continuance of the trial date, arguing that Dr. Harrod needed

an opportunity to examine Mr. Hicks in order to fairly evaluate Dr. Isaza' s

recommendation for surgery. However, the trial court denied the continuance.

The defendants sought supervisory relief with this court, which was denied on the

showing made. 16 The matter then proceeded to trial.

is Mr. Hicks' s treatment with Dr. Smith ceased upon his referral to Dr. Isaza.

16 We find no merit to Mr. Hicks' s argument in his brief that the " law of the case" doctrine
precludes this court from re- examining the issue of the trial court' s denial of the defendants'
request for an AME. Mr. Hicks contends that when this court denied the defendants' writ
application on the denial of their request for a continuance of the trial date based on the need for
an AME, it became the law of the case. However, the denial of a writ by the reviewing court has
no precedential value and should in no way be construed as an adoption of a court of appeal' s
ruling or reasoning. See St. Tammany Manor, Inc. v. Spartan Bldg. Corp., 509 So. 2d 424,
428 ( La. 1987); see also M.J. Farms, Ltd. v. Exxon Mobil Corp., 2007- 2371 ( La. 7/ 1/ 08), 998

So. 2d 16, 24 n. 12, and Long v. State ex rel. Dept. of Transp. and Development, 2004- 0485
La. 6/ 29/ 05), 916 So. 2d 87, 91 n. 7.

14

Dr. Harrod testified at trial by video deposition. At the beginning of his

testimony, he stated that he had been limited to a review of Mr. Hicks' s medical

records. After the defendants' counsel pointed out that Dr. Harrod was not allowed

to examine Mr. Hicks, Dr. Harrod testified that it would have been helpful to

examine Mr. Hicks, stating that "[ i] t is always helpful, I believe, to be able to see

someone. There are certain things you really can' t really get a full understanding

for unless you see someone."

Thereafter, during closing arguments, counsel for Mr. Hicks argued:

You know, the problem with Dr. Harrod' s testimony is I' m not
saying - - he' s probably a great doctor and I don' t know him to be
otherwise. But, the context in which he is presented in this case is
diabolical. I got to be real with you. I mean, he was presented in a
way to diminish the Plaintiff, that' s all his [ role] was to be here.

You know, he came into this case and he never saw the
patient. He said multiple times in order to make a decision, to
make an opinion, he' d have to see him, and he didn' t see him. He
has also been hired twenty- five to thirty times by the Defense
Attorneys in this case. You heard that.

And one of the biggest criticisms that I have of his testimony in
this case is he thinks that Dr. Turnipseed and Dr. Isaza are fabulous
doctors. They' ve been doing it longer than him. In fact, he refers his
clients to go see these guys still. He has no problem with their
testimony, that' s what he said when he' s trying to treat patients and
trying to make them feel better. But, when he' s wearing a Defense
hired gun hat, he changes all of this, critical of everything they say
and do. He cannot be believed, he' s just not credible. He' s not
seen this patient. [17]

Emphasis added). After the jury was discharged to deliberate, the jury sent out a

list of three questions that it requested the trial court to answer, one of which was:

Was Dr. Harrod allowed to see him?"

While there are no definitive guidelines as to what constitutes good cause,

we recognize that in Williamson v. Hartford Casualty Insurance Company,

2017- 1073 ( La. App. 1St Cir. 9/ 6/ 17, 2017 WL 3888827 ( unpublished writ action),

17 As noted by the trial court during the hearing on the motion for new trial, the defendants
failed to lodge an objection to the comments.

15

citing Schlagenhauf, 85 S. Ct. at 242- 43, 379 U.S. at 118, the ability of the party

seeking to compel the AME to obtain the information through other methods is

germane to the determination of good cause. Herein, it is undisputed that Mr.

Hicks was involved in a serious rear -end collision and that lumbar surgery was

recommended shortly before the trial date." As such, when the motion to compel

the AME by Dr. Harrod was filed, Mr. Hicks had already treated with multiple

physicians for his various injuries, including two orthopedic surgeons— Dr. Smith

and Dr. Isaza— for his cervical and lumbar issues. Mr. Hicks saw Dr. Smith as part

of his workers' compensation claim and Dr. Smith' s opinion was not favorable to

Mr. Hicks because he opined that Mr. Hicks was not a surgical candidate.

Therefore, the defendants had the means— other than through an AME— to obtain

information about Mr. Hicks' injuries and necessary treatment. Additionally, the

defendants admitted at the hearing on the motion that they had already deposed

Mr. Hicks' treating physicians and had received his medical records, including

MRI images that were shown to their expert, Dr. Robert Branstetter. At the

hearing, the defendants claimed that the proposed AME would not be invasive and

that it would only last twenty minutes. As noted by the trial court, the short

duration of the proposed AME suggests that it might not have been particularly

invasive, but it also diminishes the defendants' argument that the examination

would provide any evidence not already available given Mr. Hicks' s continuing

treatment history. Ultimately, the only argument set forth by the defendants that

the AME was necessary was that it would be helpful to the defendants to prepare

for trial— this is insufficient to establish good cause.

18
Dr. Isaza also opined that at some point Mr. Hicks would require an anterior cervical
discectomy with fusion for disc herniations at the C5- C6 and C6- C7 levels. However, Dr.
Turnipseed' s conservative treatment of Mr. Hicks' s cervical issues was currently giving Mr.
Hicks pain relief. Dr. Harrod did not dispute the cervical surgery recommendation attributed to
the accident.

16

Perhaps if Dr. Harrod had reviewed the depositions of Mr. Hicks' treating

physicians and his medical records prior to the hearing on the motion to compel,

and thereafter specifically explained how a twenty minute examination of Mr.

Hicks was still necessary for him to fully address Mr. Hicks' injuries, the

defendants may have been able to demonstrate good cause for the examination.

However, even after Dr. Harrod had ample time to review Mr. Hicks' medical

records, when the defendants filed their motion to continue, the defendants still

failed to specifically explain why an AME was necessary. Notably, the inability of

Dr. Harrod to examine Mr. Hicks did not prevent him from testifying that Mr.

Hicks was not a candidate for back surgery and that his neck and back problems

were unrelated to the automobile accident.

Furthermore, while not mentioned by the trial court, the defendants also

failed to specify the conditions and scope of the proposed AME, as required by La.

C. C. P. art. 1464. The motion to compel the AME only requested that the trial

court order Mr. Hicks to undergo a physical examination by Dr. Harrod at his

office and at a time chosen by the trial court. As such, the trial court had no

information to gauge how invasive the examination of Mr. Hicks would be.

As to the defendants' claim that Mr. Hicks' counsel made improper closing

arguments, we note that the defendants failed to contemporaneously object to those

arguments, and thus, waived their right to complain about same on appeal. La.

C. C. P. art. 1635; Karagiannopoulos v. State Farm Fire & Cas. Co., 94- 1048

La. App. 5th Cir. 11/ 10/ 99), 752 So. 2d 202, 209, writ denied, 99- 2866 ( La.

12/ 10/ 99), 752 So. 2d 165 ( providing that objections to statements made during

closing arguments must be made contemporaneously and the failure to lodge a

contemporaneous objection in the trial court waives the right to complain on

appeal). Additionally, we note that the trial court specifically instructed the jury

that the arguments made by the attorneys were not evidence.

17

Based on our review of the record, we cannot say that the trial court erred in

determining that the defendants failed to establish good cause for ordering an

AME, and we also find that the defendants failed to specify the conditions and

scope of the proposed AME, as required by La. C. C. P. art. 1464. Therefore, we do

not find that the trial court abused its vast discretion in denying the defendant' s

request for an AME. Having determined that there were no legally erroneous

evidentiary rulings by the trial court, we find no merit to the defendants'

contention that a de novo review of the record by this Court is warranted.

B. Motion for New Trial: Plaintiffs 2017 W-2

Louisiana Code of Civil Procedure article 1972 provides the peremptory

grounds for a new trial, and it provides, in pertinent part, that "[ a] new trial shall be

granted, upon contradictory motion of any party, ...( I) [ w] hen the verdict or

judgment appears clearly contrary to the law and the evidence[,]" [ or] ( 2) [ w]hen

the party has discovered, since the trial, evidence important to the cause, which he

could not, with due diligence, have obtained before or during the trial."

Additionally, La. C. C. P. art.
1973 provides the trial court with discretionary

authority to grant a new trial " in any case of there is good ground therefor, except

as otherwise provided by law. When the trial court is convinced by his

examination of the facts that the judgment would result in a miscarriage of justice,

a new trial should be granted pursuant to La. C. C. P. art. 1973. Pitts v. Louisiana

Medical Mutual Insurance Co., 2016- 1232 ( La. 3/ 15/ 17), 218 So. 3d 58, 65. The

standard of review of a denial of a motion for new trial, whether on peremptory or

discretionary grounds, is that of abuse of discretion. Rao v. Rao, 2005- 0059 ( La.

App. Pt Cir. 11/ 4/ 05), 927 So. 2d 356, 361, writ denied, 2005- 2453 ( La. 3/ 24/ 06),

925 So. 2d 1232.

The defendants contend that the trial court erred when it denied their motion

for a new trial based on Mr. Hicks' s failure to timely provide his 2017 W-2 prior to

18

trial. The defendants maintain that they had no knowledge that Mr. Hicks was

working the same number of hours after the accident as he had worked before the

accident, although Mr. Hicks claimed that he was severely injured and unable to

work. The defendants assert that, despite repeated requests for updated wage and

tax information from Mr. Hicks, they did not receive this information until the

middle of the cross- examination of Mr. Hicks' s last witness, Dr. G. Randolph Rice,

an expert in the field of economics. Therefore, according to the defendants, they

did not have the information available to impeach the testimony of Mr. Hicks and

his doctors during cross- examination. The defendants further assert that Mr.

Hicks' s willful failure to supplement his discovery responses interdicted the fact-

finding process requiring de novo review of the record.

To the contrary, Mr. Hicks claimed that the defendants were fully aware of

his 2017 work status. Mr. Hicks pointed to his deposition and the depositions of

two co- workers and his employer, all taken in 2017, wherein each testified that Mr.

Hicks was working in 2017. The defendants' economist, Larry Stokes, also

testified at trial that he had interviewed Mr. Hicks, who informed him that he was

working in 2017. Mr. Hicks also claims that the defendants were

mischaracterizing his ability to work. Mr. Hicks testified in his deposition and at

trial that in 2017 he worked seasonally on and off during the sugarcane harvest

season, which was from September through December.

Mr. Hicks also points to the defendants' discovery request, asking for "[ a]

copy of all federal and state income tax returns, including W-2 forms, filed by you

for the last five years, inclusive of the current year." Mr. Hicks contends that the

request was mailed on December 6, 2016, and there was never a formal discovery

request for a 2017 W- 2 tax form. Additionally, Mr. Hicks argues that although the

defendants assert that they requested the tax information in the weeks leading up to

trial, the emails between the parties requested tax returns, not a W-2 form.

19

Nevertheless, Mr. Hicks contends that his counsel did not receive the 2017 W-2

until Sunday, the day before trial, and that counsel informed the defendants on

Monday that he had just gotten the 2017 W-2 and would produce it if they needed

it. However, according to Mr. Hicks, the defendants waited until Dr. Rice testified

at trial regarding earnings data to request the information. 'I

Upon our review, we find that the defendants' discovery request was

completed by the plaintiff when made. The defendants' request for production of

documents did not specifically seek Mr. Hicks' s 2017 W-2 and tax return. See La.

C. C. P. art. 1428. 20 We also note that the defendants did not propound any formal

request for supplementation of the previous discovery responses. See Savoie -

Moore v. Moore, 98- 0235 ( La. App. 0 Cir. 9/ 16/ 98), 719 So. 2d 551, 554

providing that when discovery is answered and the record contains no evidence of

a request for supplementation of prior discovery responses, a party is not required

to supplement his responses). Additionally, the defendants were fully aware prior

to trial that Mr. Hicks worked seasonally for his employer as a farm worker and

19
The day after the testimony of Dr. Rice, and after the video deposition testimony of Dr.
Harrod was played at trial, the defendants moved for a mistrial based on Mr. Hicks' s alleged
failure to timely produce the 2017 W-2 form. After discussion, the trial court denied the motion
for mistrial.

20 Louisiana Code of Civil Procedure art. 1428 provides:

A party who has responded to a request for discovery with a response that
was complete when made is under no duty to supplement his response to include
information thereafter acquired, except as follows:

1) A party is under a duty seasonably to supplement his response with
respect to any question directly addressed to the identity and location of persons
having knowledge of discoverable matters, and the identity of each person
expected to be called as an expert witness at trial, the subject matter on which he
is expected to testify, and the substance of his testimony.

2) A party is under a duty seasonably to amend a prior response if he
obtains information upon the basis of which he knows that the response was
incorrect when made, or he knows that the response though correct when made is
no longer true and the circumstances are such that a failure to amend the response
is in substance a knowing concealment.

3) A duty to supplement responses may be imposed by order of the court,
agreement of the parties, or at any time prior to trial through new requests for
supplementation of prior responses.

20

laborer and that he worked for Rockforte Farms in 2017. Thus, this evidence was

not a surprise to the defendants. At the sidebar discussion during Dr. Rice' s

testimony, defense counsel admitted that they knew that Mr. Hicks was working in

2017, based on his employer' s deposition. Further, the defendants received the tax

information shortly after it was obtained by Mr. Hicks' s counsel. Therefore, under

the facts and circumstances of this case, we find we find no error or abuse of the

trial court' s discretion in failing to grant or order a new trial.

C. Damages

Compensatory damages are classified as either special or general. McGee v.

A C and S, Inc., 2005- 1036 ( La. 7/ 10/ 06), 933 So. 2d 770, 774. " Special

damages" are those which have a ready market value such that the amount of

damages theoretically may be determined with relative certainty, including medical

expenses and lost wages. Id. 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 gratification or physical enjoyment, or other

losses of life or life- style which cannot be measured definitely in monetary terms.

Duncan v. Kansas City Southern Railway Co., 2000- 0066 ( La. 10/ 30/ 00), 773

So. 2d 670, 682; see also McGee, 933 So. 2d at 774.

On appeal, the defendants contend that the jury' s total award for general

damages ($ 711, 000. 00) was excessive and that the jury' s awards for future medical

expenses ($ 285, 000. 00) and for loss of earning capacity ($ 156, 000. 00) should be

eliminated altogether .21 The applicable standard of review depends on the

classification of the particular item of damages at issue.

1. Future Medical Expenses

21 On appeal, the defendants do not challenge the jury' s damage awards of $110,410. 00 for past
medical expenses and $ 36, 000. 00 for past lost wages.

21

Future medical expenses are an item of special damages. McGee, 933 So. 2d

at 774; see also Guillory v. Insurance Co. of North America, 96- 1084 ( La.

4/ 8/ 97), 692 So. 2d 1029, 1031- 1032. Future medical expenses, as special

damages, must be established with some degree of certainty, and a plaintiff must

demonstrate that such expenditures will, more probably than not, be incurred as a

result of the injury. Menard v. Lafayette Insurance Company, 2009- 1869 ( La.

3/ 16/ 10), 31 So. 3d 996, 1006. The proper standard for determining whether a

plaintiff is entitled to future medical expenses is proof by a preponderance of the

evidence that the future medical expense will be medically necessary. Id. An

award of future medical expenses is justified if there is medical testimony that they

are indicated and that sets out their probable cost. Hanks v. Seale, 2004- 1485 ( La.

6/ 17/ 05), 904 So. 2d 662, 672. See also Menard, 31 So. 3d at 1006. However, an

award for future medical expenses is, in great measure, highly speculative, not

susceptible to calculation with mathematical certainty, and generally turns on

questions of credibility and inferences. Id. A jury' s decision regarding special

damages is subject to the manifest error standard of review, which only allows an

appellate court to reverse or adjust a special damage award where: ( 1) there is not

reasonable factual basis for the jury' s decision, and ( 2) the decision is clearly

wrong. See Guillory, 692 So.2d at 1032.

Herein, the defendants challenge the award of future medical expenses,

arguing that the jury' s award of $285, 000. 00 was based on nothing more than

conjecture by Mr. Hicks' s counsel and that no evidence was presented establishing

that it was more probable than not that Mr. Hicks would need future cervical and

lumbar spine surgery.

Both Dr. Isaza and Dr. Turnipseed testified as to Mr. Hicks' s need for future

medical treatment and that Mr. Hicks' s neck and back pain would be chronic and

lifelong. Specifically, with regard to Mr. Hicks' s neck issues, Dr. Isaza and Dr.

22

Turnipseed were conservatively treating the cervical disc herniations, and Dr.

Turnipseed was managing Mr. Hicks' s cervical pain with epidural steroid

injections ( ESIs). However, Dr. Isaza testified that the relief from the ESIs would

not last forever and that Mr. Hicks would eventually need a two-level cervical

decompression and fusion. Dr. Isaza described the eventual recommended surgical

procedure and gave a cost estimate of $137, 000. 00 to $ 140, 000. 00 for same.

The defendants' expert, Dr. Harrod, agreed with Dr. Isaza and Dr. Gary

Lum, Mr. Hicks' s expert in the field of neuroradiology, that Mr. Hicks' s cervical

disc herniations looked like soft disc herniations, indicating a more recent injury.

Dr. Harrod also believed that the cervical surgery recommendation was

appropriate. Dan Cliffe, the defendant' s economic evaluation expert, gave a cost

estimate of $136, 212.44 to $ 141, 640.44, if cervical surgery was necessary.

As to Mr. Hicks' s lumbar issues, contrary to Dr. Smith, Dr. Isaza believed

that Mr. Hicks' s disc herniations at the U -S 1 level were soft herniations, finding

them to be of a more recent nature, indicating that they were the result of trauma.

Dr. Turnipseed tried ESIs, radio frequency ablation procedures ( RFAs), and dorsal

medial branch blocks on Mr. Hicks to alleviate his chronic back pain. Dr.

Turnipseed testified that he had " tried just about everything" for Mr. Hicks and

that he was " at the end of the line" as far as Mr. Hicks' s lower back was

concerned. In November 2017, Dr. Isaza ordered another MRI of Mr. Hicks' s

lumbar spine as he was considering recommending lumber surgery to Mr. Hicks.22

However, after further testing and not long before trial, Dr. Isaza and Dr.

Turnipseed both concluded that the majority of Mr. Hicks' s pain was emanating

from the L5 -St level in his lower back. Dr. Isaza testified that he discussed the

available options with Mr. Hicks, and lower back surgery was scheduled for June

22 At one point, Dr. Isaza believed that the primary pain generator was Mr. Hicks' s sacroiliac
joint.

23

18, 2018, shortly after trial. Dr. Isaza described the lumbar surgery, estimating the

cost to be between $ 99, 000. 00 and $ 100, 000. 00. Even with the surgery, Dr. Isaza

and Dr. Turnipseed both believed that Mr. Hicks would probably develop adjacent

disc disease, which would require future medical treatment.

Because Mr. Hicks did not have a history of treatment, Dr. Isaza concluded

that it was more probable than not that the accident at issue caused Mr. Hicks' s

neck, back, and arm pain and that all of Mr. Hicks' s treatment was related to those

injuries. Additionally, Dr. Turnipseed was of the opinion that it was more likely

than not that Mr. Hicks' s neck and back problems were caused by the accident.

However, Dr. Harrod did not agree that a lumbar fusion was necessary or

appropriate for Mr. Hicks and instead recommended continued conservative

treatment with ESIs. Dr. Harrod was also of the opinion that Mr. Hicks' s back

problems were degenerative. Although Dr. Harrod recognized that back surgery

was possible in the future for Mr. Hicks, he could not relate Mr. Hicks' s current

symptoms to the motor vehicle accident. Additionally, Dr. Smith, Mr. Hicks' s

workers' compensation physician, did not believe that Mr. Hicks was a candidate

for lumbar surgery. Dr. Smith testified that Mr. Hicks' s cervical and lumbar issues

were degenerative in nature and pre- existed the accident. Nonetheless, Mr. Cliffe,

the defendants' economist, gave a present value for lumbar surgery, if needed,

between $ 99, 640. 00 and $ 100, 718. 00.

Mr. Hicks' s economist, Dr. Rice, calculated total future medical expenses

based on Mr. Hicks' s life expectancy. One track was based on continued cervical

ESI' s in lieu of neck surgery, and Dr. Rice calculated a range of $231, 148. 00 to

294, 526. 00 in total future medical care. The second track was based on cervical

surgery, and Dr. Rice calculated a total of $292, 293. 00 to $ 325, 564. 00 in future

medical expenses.

24

In contrast, Dr. Larry Stokes, the defendants' rehabilitation counselor and

life care planner, estimated no future medical costs. Dr. Stokes relied on the

medical testimony of the defendants' experts that lumbar surgery was neither

necessary nor related to the accident. Additionally, because Dr. Harrod' s opinion

was only that Mr. Hicks might need cervical surgery in the future, Dr. Stokes gave

a zero cost estimate for neck surgery.

After reviewing the entire record herein, the medical evidence reasonably

supports a factual finding that the October 1, 2015 accident caused Mr. Hicks' s

cervical and lumbar injuries, as well as injuries to his wrist and elbow.

Additionally, the evidence reasonably supports the conclusion that it is more

probable than not that Mr. Hicks will require future medical treatment for his neck

and back, including both cervical and lumbar surgeries, and that the probable cost

of Mr. Hick' s future medical care ranges from $ 231, 148. 00 to $ 325, 564. 00. As

such, we find no manifest error in the jury' s award of $285, 000. 00 to Mr. Hicks for

his future medical expenses.

2. Loss of Earning Capacity/Future Lost Earnings

Damages for a loss of earning capacity should be estimated on the injured

person' s ability to earn money, rather than what he actually earned before the

injury. Earning capacity in itself is not necessarily determined by actual loss.

Hobgood v. Aucoin, 574 So. 2d 344, 346 ( La. 1990). Damages may be assessed

for the deprivation of what the injured plaintiff could have earned despite the fact

that he may never have seen fit to take advantage of that capacity. The theory is

that the injury done him has deprived him of a capacity he would have been

entitled to enjoy even though he never profited from it monetarily. Hobgood, 574

So. 2d at 346.

Because awards for loss of earning capacity are inherently speculative and

are intrinsically incapable of being calculated with mathematical certainty, the trier

25

of fact is given much discretion in fixing such an award. Jenkins v. State ex rel.

Dept. of Transp. and Development, 2006- 1804 ( La. App. 1St Cir. 8/ 19/ 08), 993
So. 2d 749, 772- 73, writ denied, 2008- 2471 ( La. 12/ 19/ 08), 996 So. 2d 1133.

Nevertheless, a projection of loss of future earning capacity must have a factual

basis in the record, and an award may not be based upon speculation, possibility, or
conjecture. Jenkins, 993 So. 2d at 775.

The defendants assert that the jury' s award of $ 156, 000. 00 for loss of

earning capacity is not supported by the record. They argue that because Mr.

Hicks' s worked full time after the accident and suffered no depreciable loss of

earning capacity, this award should be reduced to zero.

Mr. Hicks testified that until the accident he was in good health. He stated

that he always worked, doing odd jobs, including concrete work, until he began

working for Rockforte Farms, earning $ 10 per hour as a farm laborer. 23 Mr. Hicks

testified that before the accident, he could do whatever was asked of him by Mr.

Rockforte, which included repairing farm equipment and driving the tractors for

the farm. Mr. Hicks testified, however, that after the accident, he tried to work, but

had difficulty bending over and lifting anything, and therefore, he only worked

sporadically in 2016 and 2017.

Ms. Chalfin, Mr. Hicks' s vocational rehabilitation expert and life care

planner, testified that she spoke with Mr. Rockforte, who stated that before the

accident, Mr. Hicks was a very hard worker, very dependable, and " gave over one

hundred percent." Mr. Rockforte also told Ms. Chalfin that after the accident, he

noticed a change as Mr. Hicks worked intermittently, with no consistency, and that

Mr. Hicks would do some tractor work, pick up equipment parts, or drive other

employees around the farm.

23 One of Mr. Hicks' s previous jobs was as a concrete finisher in Indianapolis, earning between
23. 00 and $ 27.00 per hour.

26

Ms. Chalfin further testified that, based on her testing, review of

employment records,
and communications with Mr. Hicks' s treating physicians,

she believed that Mr. Hicks could not return to his past occupations and that

finding work for him would be difficult. She noted that Mr. Hicks was fifty-four

years old at the time of the trial, that he had significant vocational and academic

deficits, and that his prospects for employment were guarded. Ms. Chalfin stated

that in order for Mr. Hicks to work, he would need a very understanding employer

willing to make accommodations. 24

At the time of the trial, Mr. Hicks statistically had a 7. 64 year work -life

expectancy. Dr. Rice calculated an award of $ 156, 066. 00 for the loss of future

earning potential based on the inability of Mr. Hicks to return to full time

employment. Dr. Rice also calculated an award of $ 346, 286. 00 based on Mr.

Hicks' s ability to return to work as a concrete finisher.

In opposition to this evidence, the defendants presented the testimony of

their expert rehabilitation counselor, Dr. Stokes. Although Dr. Stokes agreed with

much of Ms. Chalfin' s testimony and believed that Mr. Hicks' s employment

outlook was not " great," he was of the opinion that Mr. Hicks could find full-time

light duty employment. Accordingly, Dan Cliffe, the defendants' economic

evaluation expert, calculated no future wage loss for Mr. Hicks, based on an

18, 000. 00 annual wage.

Considering the testimony and medical evidence, as well as Mr. Hicks' s

physical and academic limitations, we find the record reasonably supports the

jury' s implicit conclusion that Mr. Hicks was unable to return to full-time

employment as a result of the October 1, 2015 accident and that it was more likely

than not that Mr. Hicks would have returned to his employment full time with

24 We note that Dr. Turnipseed restricted Mr. Hicks to light work duties, precluding him from
returning to work as a farm laborer or concrete finisher.

27

Rockforte Farms. Accordingly, the jury' s award of $ 156, 066.00 for Mr. Hick' s

loss of earning capacity was reasonable and not an abuse of the jury' s discretion.
3. General Dama es

Vast discretion is accorded the trier of fact in fixing general damage awards.
Duncan, 773So.2d at 682. This vast discretion is such that an appellate court

should rarely disturb an award of general damages. Id., citing Youn v. Maritime

Overseas Corp., 623 So. 2d 1257, 1261 ( La. 1993). Thus, the role of the appellate

court in reviewing general damage awards 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. Duncan, 773 So. 2d at 682; Youn, 623 So. 2d at 1260. Reasonable persons

frequently disagree about the measure of general damages in a particular case.

Youn, 623 So. 2d at 1261. It is only when the award is, in either direction, 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. Thus, the initial inquiry,

in reviewing an award of general damages, is whether the trier of fact abused its

discretion in assessing the amount of damages. Cone v. National Emergency

Services Inc., 99- 0934 ( La. 10/ 29/ 99), 747 So. 2d 1085, 1089. Only after a

determination that the trier of fact has abused its " much discretion" is resort to

prior awards appropriate, and then only to the extent of lowering it (or raising it) to

the highest ( or lowest) point which is reasonably within that discretion. Coco v.

Winston Industries, Inc., 341 So. 2d 332, 335 ( La. 1976).

The defendants maintain that the general damages awarded by the jury,

totaling $ 711, 000. 00, are excessive. As previously set forth above, the jury

awarded $ 300, 000. 00 for past and future pain and suffering, $ 300, 000. 00 for past

and future mental anguish, $ 55, 000. 00 for past and future loss of enjoyment of life,

and $ 55, 000. 00 for disability.

28

Pain and suffering, both physical and mental, refers to the pain, discomfort,

inconvenience, anguish, and emotional trauma that accompanies
an injury.

McGee, 933 So. 2d at 775. The factors to be considered in assessing quantum of

damages for pain and suffering are severity and duration. Jenkins, 993 So. 2d at

767. In comparison, loss of enjoyment of life refers to detrimental alterations of a

person' s life or lifestyle or a person' s inability to participate in the activities or

pleasures of life he enjoyed prior to the injury. McGee, 933 So.2d at 775; Kelley

v. Gen. Ins. Co. of Am., 2014- 0180( La. App. 1St Cir. 12/ 23/ 14), 168 So. 3d 258,

545, writs denied, 2015- 0157, 2015- 0165 ( La. 4/ 10/ 15), 163 So. 3d 814 and 815.

Additionally, for purposes of a general tort claim, disability damages are

recognized as those general damages constituting any permanent disability or

impairment that is secondary to the injuries sustained in the accident. Cotton v.

State Farm Mut. Auto. Ins. Co., 2010- 1609 ( La. App. 1St Cir. 5/ 6/ 11), 65 So. 3d

213, 222, writ denied, 2011- 1084 ( La. 9/ 2/ 11), 68 So. 3d 522. Disability is defined

as " the inability to perform some function," or alternatively, "[ a] n objectively

measurable condition of impairment, physical or mental." Impairment is simply

defined as "[ t]he quality, state, or condition of being damaged, weakened or

diminished." Bryan A. Garner, Black' s Law Dictionary ( 11th ed. 2019); Willis v.

Noble Drilling (US), Inc., 2011- 598 ( La. App. 5t" Cir. 11/ 13/ 12), 105 So. 3d 828,

1St
845. See also Boudwin v. General Ins. Co. of America, 2011- 0270 ( La. App.

Cir. 9/ 14/ 11) ( unpublished, 2011 WL 4433578, at * 2.

In this matter, Mr. Hicks testified that he did not immediately go to the

hospital after the accident, but because his pain worsened that night, he went to his

family clinic in Maringouin the following morning, complaining of a headache and

lower back and neck pain, as well as pain under his right shoulder. As a result of

his evaluation, Mr. Hicks was prescribed pain medication for lumbar and cervical

strain. Because his symptoms did not resolve, Mr. Hicks then went to a

25
chiropractor for twenty- one sessions. Still without relief, Mr. Hicks underwent

cervical and lumbar MRIs on December 16, 2015, by Dr. Gary Lum, the neuro-
radiologist. Dr. Lum was of the opinion that Mr. Hicks suffered from cervical and

lumbar spine herniations. At trial, Dr. Lum pointed out the herniations to the jury

using the MRI films and explaining that the films indicated that the injuries

manifested recently and that he believed that they were related to the collision.

After the MRIs were performed, Mr. Hicks was referred to Dr. Turnipseed

and Dr. Isaza. Thereafter, Mr. Hicks underwent twenty-eight injection procedures

performed by Dr. Tumipseed for pain, including cervical and lumbar ESIs, lumbar

RFAs, and cervical and lumbar median branch block procedures. The procedures

were described by Dr. Turnipseed as being very painful.

Dr. Isaza and Dr. Turnipseed were both of the opinion that Mr. Hicks' s neck

and back pain would be chronic and lifelong. Dr. Turnipseed specifically testified

that Mr. Hicks " will suffer from chronic pain indefinitely." Dr. Isaza testified that

his goal for Mr. Hicks was to go from miserable to tolerable. Dr. Turnipseed

believed that surgery was the only remaining alternative for Mr. Hicks as far as his

back was concerned, but even with lumbar surgery, both Dr. Isaza and Dr.

Turnipseed expected future adjacent disc problems. The doctors also believed that

the cervical ESIs for Mr. Hicks' s could continue until they no longer helped him,

at which point surgery would be necessary. Dr. Isaza related the neck, back, and

arm injuries to the accident. Dr. Turnipseed also believed that it was more likely

than not that Mr. Hicks' s neck and back pain was caused by the collision.

Also, as previously noted, Dr. Timothy Bowlin, an orthopedic surgeon,

performed two outpatient surgeries for cubital tunnel syndrome and carpel tunnel

25 Mr. Hicks testified that the chiropractor he used was the same one he went to when he was
rear- ended in a motor vehicle accident in 1990. He testified that he went to the chiropractor for
back pain as a result of the earlier accident and the pain resolved. He further stated that he has
had no problems with his back for twenty-five years until the accident on October 1, 2015.

30

syndrome.
These surgeries were performed on the same date with local anesthesia.

Dr. Bowlin believed that the damaged nerves in Mr. Hicks' s left wrist and elbow

were directly related to the accident at issue herein and that it was more likely than
not that the arm and neck injuries were caused by the accident.

At trial, Mr. Hicks testified that after the accident he could not keep working
because of the pain in his back and neck. He stated that bending over to work on

farm equipment was too difficult and that he could no longer drive the tractor as it

bounced him around and was too painful. Mr. Hicks also stated that he could no

longer put on his socks and shoes because of the pain. Mr. Hicks testified that

besides the chronic pain, he suffers from depression, anxiety, and sleeplessness.

Mr. Hicks also complained of so much pain that it had gotten to the point that he

can' t take it anymore" and just wanted the pain cut out.

In reviewing a general damage award, an appellate court does not review a

particular item in isolation; rather, the entire damage award is reviewed for an

abuse of discretion. Smith v. Goetzman, 97- 0968 ( La. App. 1St Cir. 9/ 25/ 98), 720

So. 2d 39, 48. Based on our review of the record, it is evident that Mr. Hicks has

suffered and will continue to suffer pain and suffering, mental anguish, and loss of

enjoyment of life, as well as suffer from his disability, all of which are resulting

from injuries that he sustained in the October 1, 2015 accident. Considering the

severity of Mr. Hicks' s injuries and their effect on his life, including the two

outpatient surgeries for severe carpel tunnel syndrome and severe cubital tunnel

syndrome that Mr. Hicks has already undergone and the cervical and lumbar

surgeries that Mr. Hicks will undergo at some time in the future, we cannot say that

the jury abused its discretion in awarding Mr. Hicks general damages totaling

711, 000. 00 to compensate Mr. Hicks for his injuries.

31

CONCLUSION

For the foregoing reasons, the May 25, 2018 and August 9, 2018 judgments

of the trial court are affirmed. All costs of this appeal are assessed to the

defendants, Robert L. Harger, Jr. and USAA General Indemnity Company.

AFFIRMED.

32

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 0552

RONALD HICKS

VERSUS

USAA GENERAL INDEMNITY COMPANY, ROBERT L. HARGER, JR., R. L.
HARGER AND ASSOCIATES, INC. AND HARGER AND COMPANY, INC.

rjlu************************************************
PSL ' I
McClendon, J., dissenting.

I disagree with the finding that there was no legal error by the trial court in

denying the defendants' request for an additional medical examination ( AME) based on

a lack of "good cause" under LSA- C. C. P. art. 1464. While I recognize that there are no

definitive guidelines as to what constitutes good cause, the notion of fair play, which is

woven into the fabric of our system of justice, must be considered.'

When the defendants filed their motion to compel a medical examination by Dr.

Harrod, the only medical opinions rendered regarding Mr. Hicks' s lumbar spine issues

were from his treating physicians, none of whom had been retained by the defendants

to examine Mr. Hicks. Further, Dr. Smith, the orthopedist who had initially seen Mr.

Hicks and who stated he did not believe that surgery was necessary, had not seen the

patient for more than a year prior to trial. Although Mr. Hicks argued that the

defendants had access to the opinion of Dr. Smith, Dr. Smith had no opportunity to

examine and evaluate Mr. Hicks subsequent to Dr. Isaza' s lumbar surgery

recommendation. Further, due to patient privacy issues, the defendants were not

allowed to consult with Dr. Smith. Therefore, it does not appear that there was any

other method by which the defendants could obtain timely medical information.

1 I point out Justice Crichton' s recent dissent in the denial of the writ application in Haider v. Morris,
19- 01477 ( La. 11/ 12/ 19), 282 So. 3d 209, wherein he stated:

I would grant and docket this matter to examine the significant and unresolved legal
standard for " good cause" sufficient for a court to order an additional medical
examination pursuant to La. C. C. P. art. 1464( A).... I believe that if this Court does not
provide appropriate guidelines for the legal analysis of "good cause" under La. C. C. P. art.
1464( A), deference to the district court in determinations thereof is unwarranted.

1

Further, because of the denial of the motion to compel an AME, the only recent medical
examination of Mr. Hicks within the year before trial was that by Dr. Isaza, Mr. Hicks' s
chosen orthopedist.
Further, Dr. Isaza recommended surgery only two weeks before
trial.
As a result, the defendants were denied the opportunity to challenge and rebut

the opinion of Dr. Isaza with an examination and opinion of an expert of their own

choosing or even with a recent opinion by Dr. Smith, who was selected by the workers'
compensation carrier.

I find this particularly troubling in light of the fact that in closing arguments, Mr.

Hicks' s counsel used the pretrial ruling prohibiting the AME to undermine the credibility
of Dr. Harrod' s medical opinion. 2 Given the particular facts and circumstances of this

case, I believe that the trial court abused its discretion in determining that good cause

did not exist for an AME. At a minimum, the cornerstone principle of fundamental

fairness required that the defendants be given the opportunity to present evidence to

challenge, or even confirm, the surgical recommendation of plaintiff's expert.

Moreover, I am of the opinion that the trial court's ruling denying the AME was

far from harmless. Although Dr. Harrod was allowed to review the medical records and

give an opinion based on the records review, Mr. Hicks' s counsel, in his closing

arguments, directly attacked the credibility and reliability of Dr. Harrod' s medical

opinion based on the fact that Dr. Harrod did not examine Mr. Hicks. Clearly, the

credibility of Dr. Harrod was at issue during the jury deliberations as evidenced by the

jury's question to the trial court as to whether Dr. Harrod was allowed to examine Mr.

Hicks.'

A legal error occurs when a trial court applies incorrect principles of law and such

errors are prejudicial. Evans v. Lungrin, 97- 0541 ( La. 2/ 6/ 98), 708 So. 2d 731, 735.

2 At the hearing on the motion to compel, counsel for the defendants warned the trial court that counsel
for Mr. Hicks would use the denial of an AME against them, stating " I guarantee you that my friend here,
at trial, is going to argue that [ Dr. Harrod] didn' t even see [ Mr. Hicks], ... Jury, how can he make an
opinion, he didn' t even look at him." Thereafter, during closing arguments, counsel for Mr. Hicks did, in
fact, argue to the jury that "[ Dr. Harrod] never saw the patient. He said multiple times in order
to make a decision, to make an opinion, he' d have to see him, and he didn' t see him." Counsel
further argued that Dr. Harrod " cannot be believed, he' s just not credible. He' s not seen this
patient." ( Emphasis added).

3 The jurors clearly rejected the opinions of Dr. Harrod and Dr. Smith that Mr. Hicks did not need lumbar
surgery and, instead, chose to accept Dr. Isaza' s opinion based on the $ 285, 000.00 amount awarded for
future medical expenses.

2

A review of the entire record leaves little doubt that the ruling of the trial court, which

prevented Dr. Harrod from examining Mr. Hicks, materially affected the outcome of this

case and constituted legal error. As such, I would vacate and remand for a new trial.

Therefore, I respectfully dissent.

3

RONALD HICKS STATE OF LOUISIANA

VERSUS COURT OF APPEAL

USAA GENERAL INDEMNITY FIRST CIRCUIT
COMPANY, ROBERT L. HARGER,
JR., R.L. HARGER AND 2019 CA 0552
ASSOCIATES, INC. AND HARGER
AND COMPANY, INC.

HOLDRIDGE, J., dissenting.

I agree in part with the dissent of Judge McClendon. Clearly, the trial court

was in error in denying the defendants' request for an additional medical

examination and the closing arguments of the plaintiff' s counsel were improper.

Further, I find that the trial court abused its discretion in failing to answer the

written question of the jurors of " Was Dr. Harrod allowed to see him?" The

correct response would have been for the trial court to advise the jury that Dr.

Harrod did not see the plaintiff because of a ruling by the court. A factual answer

to the jurors' question would have enabled the jury to collectively reach a result by

applying all of the factors presented to it. An answer to the jurors' question would

have precluded any question being raised as to the validity of the jury verdict.

However, I disagree with Judge McClendon' s dissent requiring a remand for

a new trial. I would find that this court should conduct a de novo review of the

evidence presented at trial. In this case, there was overwhelming evidence that the

plaintiff was injured, the jurors believed the plaintiff' s testimony, and there was

sufficient medical testimony to substantiate a substantial award to the plaintiff.

This court, after a de novo review, could determine if an alteration of the jury' s

monetary award was required.