Timothy Blakes v. Hallmark Specialty Insurance Company and Germaine Davis

TIMOTHY BLAKES * NO. 2021-CA-0572

VERSUS * COURT OF APPEAL

HALLMARK SPECIALTY * FOURTH CIRCUIT
INSURANCE COMPANY AND
GERMAINE DAVIS * STATE OF LOUISIANA

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JCL LOBRANO, J., DISSENTS AND ASSIGNS REASONS

I respectfully dissent from the majority opinion. I find that the jury award of

$50,000 for Mr. Blakes’ past, present, and future physical pain and suffering was

abusively low. As such, I would amend the district court judgment, and affirm as

amended.

I disagree with the majority’s determination that a reasonable jury could

have reached such an award, considering the evidence presented at trial. Following

many months of conservative treatment and complaints of significant, daily pain,

Mr. Blakes underwent two substantial and serious surgeries, a two-level cervical

fusion and total left hip replacement. The jury heard graphic physician testimony

about the highly invasive nature of both surgeries. The jury also heard evidence

that Mr. Blakes’ condition had a pre-existing component, along with physicians’

conflicting medical opinions as to the extent to which the accident exacerbated his

condition. Even so, the jury specifically found at trial that Mr. Blakes proved that

the motor vehicle crash was the cause in fact of his injuries, and the record does

not reveal the jury believed otherwise.

I cannot agree with the majority’s supposition that it is constrained by the

results reached in Wainwright v. Fontenot, 00-0492 (La. 10/17/00), 774 So.2d 70

or Harts v. Downing, 19-0620 (La. App. 4 Cir. 6/24/20), 302 So.3d 102. I concur

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in the analysis employed in both Wainwright and Harts, but both cases are highly

distinguishable on their facts. I find nothing in either case that prevents this Court

from finding the damages herein abusively low. Wainwright stands for the

proposition that a $0 general damages award is not per se invalid or inconsistent

with an award of compensable medical expenses. 00-0492, p. 11, 774 So.2d at 78.

Under the highly unusual facts of Wainwright, plaintiffs incurred medical special

damages for their son’s hospitalization for a medication overdose, and the jury

could have reasonably concluded that he sustained no lingering adverse effects

beyond having spent a night in a hospital. Id., 00-0492, p. 10-11, 774 So.2d at 77.

Harts involved a jury determination of credibility, where the jury viewed

photographs of a plaintiff participating in a second line parade while wearing a

large headdress shortly before an appointment to undergo a cervical epidural

steroid injection. 19-0620, p. 14, 302 So.3d at 113. This Court found an $8,000

past pain and suffering award reasonably supportable where the jury could have

found the plaintiff “underwent periodic, though ultimately sporadic, [conservative,

non-surgical] medical treatment related to the accident and that he was no longer in

any substantial continued pain or experiencing any adverse changes to his

lifestyle.” Id., 19-0620, p. 14-15, 302 So.3d at 113.

In the matter on appeal, however, I see no indication that the jury found Mr.

Blakes’ testimony incredible, his course of treatment unnecessary, or his injuries

wholly unrelated to his accident. In fact, hearing the evidence at trial, jury awarded

Mr. Blakes $263,000 in past medical expenses, finding those expenses related to

the accident. The record reveals Mr. Blakes’ significant complaints of pain and

ongoing treatment leading up to two major surgeries. Even accounting for the

success of those surgeries and to the extent the jury could have reasonably found

that Mr. Blakes recovered substantially thereafter, the jury’s award of $50,000 for

physical pain and suffering obviously overlooks Mr. Blakes’ pre-surgical pain and

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the severity of the surgeries. Under the circumstances presented, the jury’s pain

and suffering award is simply not reasonably supported by the evidence or

reflective of the nature of the injuries.

Without re-weighing any evidence or making any assessment as to

credibility, I find – from a purely objective standpoint – that the jury’s pain and

suffering award is “beyond that which a reasonable trier of fact could assess for the

effects of the particular injury to the particular plaintiff” such that the jury abused

its discretion. See Guillory v. Lee, 09-0075, p. 16 (La. 6/26/09), 16 So.3d 1104,

1117 (quoting Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.

1993)). “Only after making the finding that the record supports that the lower court

abused its much discretion can the appellate court disturb the award, and then only

to the extent of lowering it (or raising it) to the highest (or lowest) point which is

reasonably within the discretion afforded that court.” Guillory, 09-0075, p. 15, 16

So.3d at 1117 (citing Wainwright, 00-0492, p. 6, 774 So.2d at 74 and quoting Coco

v. Winston Indus., Inc., 341 So.2d 332, 334 (La. 1977)).

With respect to the two-level cervical fusion alone, my review of recent

jurisprudence sets forth physical pain and suffering awards for similar injuries and

treatment ranging from $150,000 to $450,000.1 Raising Mr. Blakes’ physical pain

1 See, e.g., Jackson v. Underwriters at Lloyd’s of London, 21-15 (La. App. 5 Cir. 9/29/21), 329

So.3d 1029, 1046, writ denied, 21-01591 (La. 1/12/22), 330 So.3d 617 ($150,000 past pain,
suffering, and mental anguish/$50,000 future pain, suffering, and mental anguish - two-level
cervical fusion recommended, second cervical fusion possible); Fontenot v. UV Ins. Risk
Retention Grp., Inc., 20-361 (La. App. 3 Cir. 4/14/21), --- So.3d ---, 2021 WL 1399874, writ
denied, 21-00656 (La. 10/5/21), 325 So.3d 357 ($150,000 past, present, and future pain and
suffering - three-level cervical discectomy and fusion; potential additional future surgery);
Collatt v. Boudreaux, unpub., 19-103 (La. App. 3 Cir. 11/25/19), 2019 WL 6482247 ($50,000
past mental and physical pain and suffering/$50,000.00 future mental and physical pain and
suffering/$40,000.00 permanent disability/$25,000 loss of enjoyment of life raised on appeal to
$400,000 in total general damages - two-level cervical discectomy and fusion, lumbar surgery
likely); Huntley v. 21st Century Premier Ins. Co., 16-514 (La. App. 3 Cir. 11/2/16), 204 So.3d
1085, 1087 ($150,000.00 past, present, and future pain and suffering - cervical fusion performed,
necessity of future lumbar surgery disputed); Fontenot v. Stevens, unpub., 16-277 (La. App. 3
Cir. 9/28/16), 2016 WL 5421262 ($150,000 past, present, and future physical pain and suffering
increased to $450,000 past, present, and future physical and mental pain and suffering on JNOV
- cervical fusion performed, lumbar fusion anticipated); Kelley v. Gen. Ins. Co. of Am., 14-0180
(La. App. 1 Cir. 12/23/14), 168 So.3d 528 ($150,000.00 past physical pain and
suffering/$55,000.00 future physical pain and suffering - two-level cervical fusion).
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and suffering award to the lowest point as is reasonably within this Court’s

discretion, I would amend the judgment to award $150,000 in damages for past,

present, and future physical pain and suffering, and I would affirm the district

court’s judgment as amended. Thus, for these reasons, I respectfully dissent.

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