Jonathan Akers and Cyntiana Akers v. Joseph Douglas, Daryl Malone, State Farm Mutual Automobile Insurance Company and Prosight Speciality Insurance Brokerage, LLC

JONATHAN AKERS AND * NO. 2024-CA-0033
CYNTIANA AKERS
*
VERSUS COURT OF APPEAL
*
JOSEPH DOUGLAS, DARYL FOURTH CIRCUIT
MALONE, STATE FARM *
MUTUAL AUTOMOBILE STATE OF LOUISIANA
INSURANCE COMPANY AND *******
PROSIGHT SPECIALITY
INSURANCE BROKERAGE,
LLC

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2020-10639, DIVISION “E”
Honorable Omar Mason, Judge
******
Judge Nakisha Ervin-Knott
******
(Court composed of Chief Judge Terri F. Love, Judge Rachael D. Johnson, Judge
Nakisha Ervin-Knott)

Jake J. Weinstock
Irvy E. Cosse, III
COSSE LAW FIRM, LLC
1515 Poydras Street, Suite 900
New Orleans, LA 70112

COUNSEL FOR PLAINTIFFS/APPELLEES

Sidney J. Angelle
LOBMAN, CARNNAHAN, BATT, ANGELLE, AND NADER
400 Poydras Street
Suite 2300
New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLANT

AFFIRMED
AUGUST 16, 2024

NEK New York Marine and General Insurance Company (“New York Marine”),
TFL
seeks review of the trial court’s August 10, 2023 bench trial judgment awarding
RDJ
monetary damages to Jonathan Akers (“Mr. Akers”) and Cyntiana Akers (“Mrs.

Akers”) (collectively “The Akers”); October 24, 2023 judgment denying

Defendants’ – Joseph Douglas (“Mr. Douglas”), Bensco of Louisiana, LLC

(“Bensco”), and New York Marine – motion for new trial; and October 24, 2023

judgment granting the motion to tax costs filed by the Akers. After considering the

record before this Court, we affirm the trial court’s judgments.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This civil action emanates from a motor vehicle accident that occurred on

April 10, 2020, at the intersection of Eastover Drive and Lake Forest Boulevard.

Defendant-driver, Mr. Douglas, was traveling southbound on Eastover Drive and

proceeded to make a right turn onto Lake Forest Boulevard as the Akers were

traveling westbound on Lake Forest Boulevard, resulting in a collision between the

two vehicles.1

1 At the time of the accident, Mr. Douglas was operating a vehicle owned by Daryl Malone (“Mr.

Malone”). Prior to the accident, Mr. Douglas – an employee of a local car dealership – had dropped
off a loaner vehicle to Mr. Malone and picked up his vehicle to drive it to the dealership.

1

The Akers filed a petition for damages on December 15, 2020, naming several

parties, including Mr. Douglas, as Defendants.2 Subsequently, the Akers filed a first

amended petition for damages to add New York Marine as a Defendant.3 Yet, again,

the Akers filed a second amended petition for damages to add Bensco as a

Defendant.4 This matter proceeded as a bench trial on July 31, 2023, during which

three witnesses testified: Mrs. Akers, Mr. Akers, and Dr. Patrick Waring (“Dr.

Waring”), the Akers’ treating physician and expert in pain management. The

deposition of Mr. Douglas was also introduced into evidence at trial.

At the close of trial, the trial court took the matter under advisement and gave

the parties an opportunity to submit post-trial memoranda. On August 10, 2023, the

trial court issued a judgment. In its judgment, the trial court found Mr. Douglas

solely (100%) negligent in causing the collision. The trial court awarded general

damages in the amount of $376,000.00 to Mr. Akers – $160,000.00 for his past

physical pain and suffering, mental anguish and distress, and loss of enjoyment of

life; and $216,000.00 for his future physical pain and suffering, mental anguish and

distress, and loss of enjoyment of life – and $376,000.00 to Mrs. Akers –

$160,000.00 for her past physical pain and suffering, mental anguish and distress,

and loss of enjoyment of life; and $216,000.00 for her future physical pain and

suffering, mental anguish and distress, and loss of enjoyment of life. Additionally,

the trial court awarded special damages in the amount of $74,607.43 for past medical

2 The other named Defendants included Mr. Malone; State Farm Mutual Automobile Insurance

Company (“State Farm”), Mr. Malone’s vehicle insurer; and Prosight Specialty Insurance
Brokerage (“Prosight”), Mr. Douglas’ alleged insurer.
3 Initially, the Akers believed Prosight was both the brokerage firm and insurance carrier for Mr.

Douglas. Through discovery, they learned that New York Marine was in fact Mr. Douglas’ insurer.
4 Bensco was Mr. Douglas’ employer at the time of the accident. As Mr. Douglas was in the course

and scope of his employment at the time of the accident, the Akers alleged that Bensco was
vicariously liable for his actions.

2

expenses and $117,773.64 for future medical expenses to Mr. Akers, and $83,969.74

for past medical expenses and $90,580.23 for future medical expenses to Mrs. Akers.

In response to the trial court’s judgment, the Akers filed a motion to tax costs

on August 16, 2023. Five days later, Defendants – Mr. Douglas, Bensco, and New

York Marine – followed with filing a motion for new trial. Both motions were set

for hearing on the same day, and on October 24, 2023, the trial court issued two

separate judgments granting the motion to tax costs and denying the motion for new

trial. New York Marine timely filed a petition for suspensive appeal on November

20, 2023, and the order granting the suspensive appeal was signed on the same day.

DISCUSSION

On appeal, New York Marine asserts five assignments of error: (1) the trial

court abused its discretion in granting general damages awards for Mr. Akers and

Mrs. Akers clearly contrary to the law and evidence presented at trial; (2) the trial

court erred in allowing trial by ambush and granting excessive future medical

expenses to Mr. Akers and Mrs. Akers; (3) the trial court erred in admitting

uncertified medical bills of Dr. Waring into the court record to determine Mr. Akers’

and Mrs. Akers’ past medical expenses; (4) the trial court erred in accepting Dr.

Waring’s testimony regarding causal relation of Plaintiff, Mrs. Akers’, lumbar disc

symptoms and treatment to the subject accident; (5) the trial court abused its

discretion in denying Defendants’ motion for new trial.

Assignment of Error Number One: The trial court abused its discretion in
granting general damages award for Mr. Akers and Mrs. Akers clearly contrary
to the law and evidence presented at trial.

In its first assignment of error, New York Marine contends the trial court’s

award of general damages to the Akers was clearly contrary to the law and evidence

presented at trial. “General damages are defined as ‘those which may not be fixed

3

with pecuniary exactitude,’ instead, they ‘involve mental or physical pain or

suffering, inconvenience, the loss of intellectual gratification or physical enjoyment,

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

terms.’” Preston v. Certain Underwriters at Lloyd’s London, 2023-0277, p. 7 (La.

App. 4 Cir. 1/22/24), 381 So.3d 827, 833. Thus, “general damage awards are

reviewed under the ‘much discretion’ standard of La. C.C. art. 1999, which provides

‘[w]hen damages are insusceptible of precise measurement, much discretion shall be

left to the court for the reasonable assessment of these damages.’” Id. (citations

omitted). Recently, this Court addressed the appellate review of general damage

awards and stated:

Appellate courts review a general damage award using a two-step
analysis. Pete v. Boland Marine & Mfg. Co., LLC, 23-00170, p. 10 (La.
10/20/23), 379 So.3d 636, 644, reh’g denied, 23-00170 (La. 12/7/23),
374 So.3d 135. The initial inquiry is whether the trier of fact abused its
discretion in assessing the amount of damages. Id. The Louisiana
Supreme Court recently modified this analysis in that, “to evaluate this
issue, an appellate court is to include a consideration of prior awards in
similar cases, as well as the particular facts and circumstances of the
case under review.” Id. If the appellate court finds an abuse of
discretion, the court must then consider those prior awards to
determine “the highest or lowest point which is reasonably within that
discretion.” Id. (quoting Jones, 22-00841, p. 16, 359 So.3d at 464).
“The trier of fact is afforded much discretion in assessing the facts and
rendering an award because it is in the best position to evaluate witness
credibility and see the evidence firsthand.” Bouquet v. Wal-Mart
Stores, Inc., 08-0309, p. 4 (La. 4/4/08), 979 So.2d 456, 459. The role of
an appellate court in reviewing a general damages award 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. Id., 08-0309, p. 5, 979
So.2d at 459. “This vast discretion is such that an appellate court should
rarely disturb an award of general damages.” Howard v. Union Carbide
Corp., 09-2750, p. 5 (La. 10/19/10), 50 So.3d 1251, 1255-56.

Lombard v. Nobre, 2023-0746, pp. 19-20 (La. App. 4 Cir. 6/18/24), --- So.3d ---,

2024 WL 3041365, at *9. “The factors to be considered in assessing quantum

of general damages for pain and suffering are severity and duration.” Preston, 2023-

4

0277 at p. 8, 381 So.3d at 834. Therefore, “this Court is obligated to consider both

the facts contained in the record and prior damage awards in cases similar to the

instant matter.” Id.

Turning to the matter herein, New York Marine asserts the Akers’ individual

general damage awards of $376,000.00 – $160,000.00 in past general damages and

$216,000.00 in future general damages – must be lowered to $150,000.00

individually based on the facts and circumstances of their injuries. An examination

of the record reflects Mr. Akers was sitting in the front passenger seat of his vehicle

at the time of the accident and sustained injuries to the lower left and right sides of

his back. Although he felt back pain the day after the accident, Mr. Akers did not go

to the emergency room nor urgent care. Rather, he was first seen by Dr. Chad

Domangue (“Dr. Domangue”) a week after the accident. Under Dr. Domangue’s

care, Mr. Akers received one steroid injection in his back on June 4, 2020, and was

prescribed pain medication. While the steroid injection and pain medication helped

with his back, it did not permanently resolve Mr. Akers’ lower back pain. His last

visit with Dr. Domangue was on March 26, 2021.

After treating with Dr. Domangue, Mr. Akers transferred his care to Dr.

Waring and was first seen by him on June 22, 2021. During his first visit, Mr. Akers

reported a six or seven out of ten (6 or 7/10) pain level in his back. For over two

years, Dr. Waring has treated Mr. Akers for his axial lower back pain arising from

his facet joints with radiofrequency neurotomy procedures. Dr. Waring testified that

he performed two right-sided L4-S1 radiofrequency neurotomy procedures and two

left-sided L4-S1 radiofrequency neurotomy procedures on Mr. Akers. Based on his

personal study, practice patterns, and multiple patients, Dr. Waring opined that Mr.

Akers will need to repeat these radiofrequency neurotomy procedures once a year

5

for the next six years on each side, for a total of twelve procedures over the next six

years.

The record establishes that after the April 2020 accident, Mr. Akers

experienced periods of time where the pain levels in his back were minimal.

However, these periods of minimal-to-no pain were directly connected to either an

epidural steroid injection coupled with prescribed pain medication or radiofrequency

neurotomy procedures. Although Mr. Akers injured his back in a January 13, 2017

accident and sought chiropractic treatment, he was pain free in his lower back for

two to three years preceding the April 2020 accident. Further, Mr. Akers testified

that while he used to participate in weightlifting prior to the April 2020 accident, he

no longer weightlifts as a result of his post-accident back pain. Moreover, as a result

of his post-accident back pain, Mr. Akers testified that his intimacy with his wife

has been negatively impacted.

Shifting to Mrs. Akers, unlike Mr. Akers – who did not experience any back

pain until the next day – Mrs. Akers reported experiencing back pain two hours after

the April 2020 accident. Similar to Mr. Akers, Mrs. Akers began treating with Dr.

Domangue prior to treating with Dr. Waring. On June 8, 2020, Dr. Domangue

performed a right-sided L3-S1 radiofrequency neurotomy procedure, where she

experienced ninety percent (90%) relief for ten months.

Mrs. Akers also transferred her care to Dr. Waring and was first seen by him

on June 22, 2021. During her first visit, Mrs. Akers reported a five or six out of ten

(5 or 6/10) pain level in her lower back. For over two years, Dr. Waring has treated

Mrs. Akers for her axial lower back pain arising from her facet joints and radicular

spine pain. Dr. Waring performed a radiofrequency neurotomy procedure on

September 22, 2022, and a right-sided epidural steroid injection – aimed at the nerve

6

root located at L4-5 – on February 6, 2023, to address some worsening right lower

extremity pain. During his last procedure on June 6, 2023, Dr. Waring repeated the

radiofrequency neurotomy procedure and “folded”, or included, the epidural steroid

injection into the same radiofrequency procedure. Based on Mrs. Akers’ apparent

treatment patterns, Dr. Waring opined that she will need one and a half

radiofrequency neurotomy procedures a year for six years and three epidural steroid

injections per year.

Prior to the April 2020 accident, Mrs. Akers did not have a history of lower

back problems or treatment. Mrs. Akers testified that she enjoyed running errands –

going to different flea markets and stores – on the weekends with her daughter.

However, since the April 2020 accident, she goes to the store on an “as needed”

basis and has to return straight home due to her back pain. Additionally, Mrs. Akers’

lower back pain has interfered with her ability to cook and bake. While she used to

host Thanksgiving dinner at her house, Mrs. Akers testified that she has not hosted

this holiday dinner at her house for two years due to her inability to stand for long

periods of time. Moreover, as a result of her post-accident back pain, Mrs. Akers’

intimacy with her husband has been negatively impacted.

On appeal, New York Marine cites to several cases to support its position that

the $376,000.00 general damages awards to the Akers individually should be

reduced to $150,000.00. In Mixter v. Wilson, Ms. Mixter was involved in a motor

vehicle accident and sustained cervical spine injuries requiring treatment with

cervical epidural injections. 2010-0464, p. 3 (La. App. 5 Cir. 12/14/10), 54 So.3d

1164, 1167. The Fifth Circuit determined the “lowest permissible award to Ms.

Mixter for her pain and suffering caused by this accident is $30,000.00.” Id. at p. 7,

54 So.3d at 1169. Unlike Ms. Mixter, who dealt with injuries to her cervical spine,

7

the Akers’ injuries affected their lumbar spines. As a result of their lumbar spine

injuries, the Akers underwent several radiofrequency neurotomy procedures and

require more of these procedures over the span of six years in the future, whereas

Ms. Mixter just received cervical epidural injections.

In Donaldson v. Hudson, Mr. Donaldson sustained injuries to his neck and

spine as a result of a motor vehicle accident. 2012-1013, p. 7 (La. App. 4 Cir.

4/10/13), 116 So.3d 46, 51. Due to his injuries, Mr. Donaldson received cervical

facet injections in order to temporarily relieve the pain, and Mr. Donaldson’s

chiropractor and neurosurgeon testified that he would be a good candidate for a

rhizotomy. Id. This Court affirmed the jury’s general damage award of $125,000.00.

Id. Similar to Ms. Mixter, Mr. Donaldson received cervical injections, while the

Akers were treated with radiofrequency neurotomy procedures. Even though Mr.

Donaldson was a “good candidate for a rhizotomy,” he did not undergo the

procedure, and there was no evidence presented at trial to show that multiple

rhizotomies would be necessary over the span of several years. Conversely, in the

matter herein, Dr. Waring specifically opined that the Akers would need multiple

radiofrequency neurotomy procedures over the span of six years – twelve procedures

for Mr. Akers and nine procedures for Mrs. Akers.

Finally, in Hammons v. St. Paul, Mr. Hammons injured his neck and back in

a motor vehicle accident. 2012-0346, p. 1 (La. App. 4 Cir. 9/26/12), 101 So.3d 1006,

1008. Two months after the accident, Mr. Hammons’ back pain resolved; however,

his neck pain continued. Id. at p. 2, 101 So.3d at 1008. He was diagnosed with facet

syndrome and received a series of steroid injections to help with pain. Id. at p. 3, 101

So.3d at 1009. The injections proved to be unsuccessful, and ultimately, Mr.

Hammons underwent a rhizotomy. Id. The jury awarded Mr. Hammons a total of

8

$65,000.00 in general damages - $50,000.00 for past general damages and

$15,000.00 for future general damages. Id. at p. 4, 101 So.3d at 1010. On appeal,

this award amount was upheld. Again, Mr. Hammons’ injuries centered around his

cervical spine and not his back, whereas the Akers’ injuries affected their lumbar

spines. Moreover, while Mr. Hammons underwent one rhizotomy, he did not

undergo multiple rhizotomies, nor was he going to undergo additional rhizotomies

in the future. On the other hand, the record clearly established that the Akers had

each undergone more than one radiofrequency neurotomy procedure prior to trial,

and future procedures were more probable than not. Considering the dissimilarities

in injuries and treatment between the plaintiffs in New York Marines’ cited cases

and the Akers, the damage awards in these cases do not properly guide this Court in

determining whether an abuse in discretion has occurred regarding the trial court’s

award of general damages to the Akers.

New York Marine attempts to discredit the Akers’ reliance on May v.

Regional Transit Authority, to support the trial court’s general damages award.

2019-0510 (La. App. 4 Cir. 12/30/19), 289 So.3d 195. In May, the plaintiff – Ms.

May – was involved in a motor vehicle accident where she sustained injury to her

back. Id. at pp. 3-5, 289 So.3d at 198-199. The results of a lumbar MRI “revealed a

6.6 mm herniation and annular tear at L5-S1, disc bulging at L4-5, and fact

hypertrophy at L3-4, L4-5, and L5-S1.” Id. at p. 5, 289 So.3d at 199. Her treating

neurosurgeon opined that her symptoms stemmed from her facet joints and

recommended she undergo a lumber epidural steroid injection and facet blocks. Id.

Additionally, her neurosurgeon opined that she was a candidate for lumbar fusion

surgery at the L3-4 level. Id. Not wanting to undergo surgery, Ms. May was referred

to a pain management physician who performed a lumber epidural steroid injection,

9

bilateral lumbar medical branch blocks, and two bilateral rhizotomy procedures. Id.

at pp. 5-6, 289 So.3d at 199. The pain management physician opined that in order to

address her back pain, Ms. May would need one lumber rhizotomy every nine

months for the next seven years. Id. at p. 7, 289 So.3d at 199. Ms. May testified that

as a result of the accident, “she has continued throbbing, pain, and burning in her

back and/or running down her legs every day.” Id. at p. 9, 289 So.3d at 201. She

further testified that she ceased many of her pre-accident activities, “including

working as a sitter, traveling with family, gardening, fishing, and exercising

regularly.” Id.

The May trial court awarded Ms. May general damages in the amount of

$560,000.00. Id. at p. 6, 289 So.3d at 200. On appeal, this Court reduced this amount

to $500,000.00 due to the cap on liability against political subdivisions pursuant to

La. R.S. 13:5106(B). Id., 2019-0510 at p. 7, 289 So.3d at 200. Yet, in all other

respects, this Court affirmed the trial court’s general damages award, finding:

[I]t is apparent that the trial judge was clearly favorably impressed with
the credibility of Ms. May’s experts and of Ms. May regarding the
extent of her physical injuries, pain, and suffering, and her physical
limitations. Given the vast discretion of the trial court in assessing
general damages, we find no abuse of discretion.

Id. at p. 9, 289 So.3d at 201.

Comparing the May case to the matter herein, it is evident that the lumbar

injuries sustained by Ms. May were more severe than the Akers’ lumbar injuries,

especially considering the fact that Ms. May had a lumber fusion (surgery)

recommendation and the Akers did not have surgery recommendations. However,

Ms. May’s $500,000.00 general damage award was more than the $376,000.00

general damages awards to the Akers individually. Furthermore, Ms. May’s course

of treatment, including the need for repeated rhizotomies over the span of seven

10

years, is very similar to the Akers’ course of treatment, which includes the need for

repeated radiofrequency neurotomy procedures over the course of six years.

Additionally, just as Ms. May testified to the pain she experiences post-accident and

its negative impact on her daily life, the Akers testified to the pain they experience

in their lower backs and its negative impact on their daily lives.

After examining the particular facts of this case, and considering the May case,

we find no abuse of discretion in the trial court’s assessment of general damages as

there is ample evidence in the record to support the $376,000.00 general damages

awards in favor of the Akers individually.

Assignment of Error Number Two: The trial court erred in allowing trial by
ambush and granting excessive future medical expenses to Mr. Akers and Mrs.
Akers.

Next, in its second assignment of error, New York Marine avers the trial court

allowed trial by ambush and awarded excessive future medical expenses to Mr.

Akers and Ms. Akers. “The proper standard for determining whether a plaintiff is

entitled to an award of future medical expenses is ‘proof by a preponderance of the

evidence that the future medical expenses will be medically necessary.’” Kimble v.

Curahealth New Orleans LLC, 2021-0389, p. 16 (La. App. 4 Cir. 12/1/21), 367

So.3d 644, 655 (quoting Hoskin v. Plaquemines Par. Gov’t, 1997-0061, pp. 4-6 (La.

App. 4 Cir. 12/1/97), 703 So. 2d 207, 210-11). Importantly,

Future medicals need not be established with mathematical
certainty...Although a plaintiff is not required to prove the exact value
of the necessary expenses, some evidence to support the award must be
contained in the record. If the fact finder can determine from...evidence
a minimal amount that reasonable minds could agree upon, then an
award is proper.

Hankton v. State, 2019-0557, p. 11 (La. App. 4 Cir. 3/4/20), 294 So.3d 25, 34

(citations omitted). “In making a factual conclusion regarding damages, great

11

deference is afforded a judge’s assessment of the appropriate amount of damages.”

Id. (citing Menard v. Lafayette Ins. Co., 2009-1869, p. 14 (La. 3/16/10), 31 So.3d

996, 1007). Therefore, “[a]n appellate court, in reviewing a judge’s factual

conclusions with regard to special damages, must satisfy a two-step process based

on the record as a whole: there must be no reasonable factual basis for the trial

court’s conclusion, and the finding must be clearly wrong.” Kimble, 2021-0389 at p.

16, 367 So.3d at 655 (citation omitted). “Where two permissible views of the

evidence exist, the fact-finder’s choice cannot be manifestly erroneous or clearly

wrong.” Id. (citation omitted).

New York Marine maintains the trial court erred in awarding future medical

expenses in the amount $117,773.64 to Mr. Akers and $90,580.23 to Mrs. Akers, as

these amounts deviated from the proposed amounts in their life care plans. As part

of this litigation, the Akers retained an expert, Joyce Beckwith (“Ms. Beckwith”) of

Conservant Healthcare, to prepare their life care plans. According to Ms. Beckwith’s

life care plans, Mr. Akers’ future medical expenses totaled $67,874.41, and Mrs.

Akers’ future medical expenses totaled $68,227.11. At trial, Ms. Beckwith did not

testify. Instead, the Akers relied on Dr. Waring’s testimony to establish their future

medical expense amounts.

The two life care plans were dated December 2, 2021, less than six months

after Dr. Waring began treating the Akers. Although Ms. Beckwith consulted with

Dr. Waring in preparing the life care plans, it is evident that these December 2, 2021

life care plans were premature, as Dr. Waring had been treating the Akers for well

over a year after these plans were prepared. As the current treating physician, Dr.

Waring was better suited to provide current figures regarding future medical

expenses. Moreover, New York Marine was not “ambushed” by Dr. Waring’s

12

testimony, as it failed to depose or issue any discovery to Dr. Waring regarding any

future medical expenses in advance of trial. Thus, the trial court was within its

discretion to deviate from Ms. Beckwith’s life care plans and consider Dr. Waring’s

testimony regarding the Akers’ future medical care and expenses.

Dr. Waring testified that going forward, Mr. Akers will need to repeat the

radiofrequency neurotomy procedures for both right and left sides once a year for

the next six years, which is a total of twelve procedures, and he will have three to

four doctor’s visits each year. Additionally, Dr. Waring testified that the charge price

for each radiofrequency neurotomy is $4,300.00, and facility fee for each

radiofrequency neurotomy is $4,764.47, and the charge price for each doctor’s visit

is $500.00. Therefore, based on his need for future treatment and the associated

charge prices, Dr. Waring opined the total estimated cost for Mr. Akers’ future

medical expenses is $117,773.64 and attributed Mr. Akers’ lower back pain and need

for future treatment to the April 2020 accident. Given the length of treatment Mr.

Akers requires for his lower back pain and the expenses associated with these

treatments, we find the $117,773.64 award for future medical expenses reasonable.

Concerning Mrs. Akers, Dr. Waring testified that going forward, Mrs. Akers

will need one and a half radiofrequency neurotomy procedures a year for six years

and three epidural steroid injections each year that can be folded into the

radiofrequency neurotomy procedures at no additional cost, which is a total of nine

procedures, and she will have three to four doctor’s visits each year. Additionally,

Dr. Waring testified that the charge price for each radiofrequency neurotomy is

$4,300.00, and facility fee for each radiofrequency neurotomy is $4,764.47, and the

associated charge price for each doctor’s visit is $500.00. Therefore, based on her

need for future treatment and the associated charge prices, Dr. Waring opined the

13

total estimated cost for Mrs. Akers’ future medical expenses is $90,580.23 and

attributed Mrs. Akers’ lower back pain and need for future treatment, specifically

the radiofrequency neurotomy procedures, to the April 2020 accident. Given the

length of treatment Mrs. Akers requires for her lower back pain and the expenses

associated with these treatments, we find the $90,580.23 award for future medical

expenses reasonable.

For these reasons, we find the trial court’s award of $117,773.64 to Mr. Akers

and $90,580.23 to Mrs. Akers for future medical expenses was supported by

sufficient evidence in the record.

Assignment of Error Number Three: The trial court erred in admitting uncertified
medical bills of Dr. Waring into the court record to determine Mr. Akers and Mrs.
Akers past medical expenses.

Further, in its third assignment of error, New York Marine maintains the trial

court erred in admitting Dr. Waring’s uncertified medical bills into the record, which

were used to calculate the Akers’ past medical expenses. “A trial court’s decision on

the admissibility of evidence is subject to the abuse of discretion standard.” Landry

v. Hypolite, 2023-0635, p.17 (La. App. 3 Cir. 3/6/24), 381 So.3d 977, 988 (citing

Menard v. Holland, 2005-353, p. 7 (La. App. 3 Cir. 12/30/05), 919 So.2d 810, 815).

Consequently, “the trial court has vast discretion in deciding the admissibility of

evidence, and its decision will not be reversed on appeal absent an abuse of that

discretion.” Id. (citation omitted). However, New York Marine asserts the trial court

committed a legal error in admitting Dr. Waring’s uncertified medical bills,

therefore, the de novo standard of review should apply instead of the abuse of

discretion standard (“When legal error interdicts the fact-finding process, the

manifest error standard no longer applies to any findings affected by that legal error.

If the record is otherwise complete, the reviewing court should conduct a de

14

novo review of the interdicted findings.” Irwin v. Brent, 2023-0475, p. 5 (La. App.

4 Cir. 7/19/24), --- So.3d ---, 2024 WL 3466371, at *3 (citing

Landry v. Bellanger, 2002-1443, pp. 15 (La. 5/20/03), 851 So.2d 943, 954)).

Louisiana Revised Statutes 13:3714(A) (emphasis added) specifies:

Whenever a certified copy of the chart or record of any hospital, signed
by the administrator or the medical records librarian of the hospital in
question, or a copy of a bill for services rendered, medical narrative,
chart, or record of any other state health care provider, as defined by
R.S. 40:1299.39(A)(1) and any other health care provider as defined in
R.S. 40:1299.41(A), certified or attested to by the state health care
provider or the private health care provider, is offered in evidence in
any court of competent jurisdiction, it shall be received in evidence by
such court as prima facie proof of its contents, provided that the party
against whom the bills, medical narrative, chart, or record is sought to
be used may summon and examine those making the original of the
bills, medical narrative, chart, or record as witnesses under cross-
examination.

Louisiana Revised Statute 13:3714(A) provides that when a copy of a bill for

services provided is certified or attested to by the health care provider and is offered

in evidence, it shall be admitted into evidence if the party against whom the bill is

being used is given an opportunity to cross-examine those who generated the bill.

See Guillory v. Progressive Ins. Co., et al, 2012-1284, pp. 9-10 (La. App. 3 Cir.

7/3/13), 117 So.3d 318, 325-26. An examination of the law and facts demonstrate

the trial court did not commit legal error in admitting Dr. Waring’s medical bills

from Diagnostic Management Affiliates PPO, LLC (“DMA”); thus, the abuse of

discretion standard is the proper standard of review.

Although the Akers provided certified medical records from Dr. Waring and

his office, Pain Intervention Center, these records did not contain his medical billing

records. The Akers attempted to introduce Dr. Waring’s medical billing that

contained a certification page from DMA, a third-party medical funding company

that contracts with Dr. Waring and the Pain Intervention Center. Further, New York

15

Marine maintains a DMA representative cannot certify billing documents it did not

create, and Dr. Waring cannot certify documents provided by a third-party. Counsel

for New York Marine objected to their admittance into evidence due to the fact that

these records from DMA were first provided to counsel the day before trial via

Dropbox, and DMA is not a healthcare provider under La. R.S. 13:3714(A). Counsel

for the Akers responded that the medical records had been provided to opposing

counsel well in-advance of trial; however, the certification page was dated July 30,

2023 – the day before trial – in order to include the most up to date billing

information. Further, due to the fact that Dr. Waring was testifying and could

authenticate his own billing, the medical billing records would be properly

authenticated and admitted into evidence.

In testifying at trial, Dr. Waring attested to several facts, including, but not

limited to: (1) he has a contract with DMA, for his physician's fees, and Pain

Intervention Center has a contract with DMA as well; (2) he selects the CPT and

diagnostic codes for billing purposes; (3) the CPT and diagnostic codes are inputted

into the system by himself or a Pain Intervention Center employee; and (4) his

signature is located at the bottom of the bills. Additionally, counsel for the Akers

presented a letter addressed to his law office from Pain Intervention Center that

instructed counsel to obtain certified copies of the medical billing records from

DMA, who were provided with the billing records from Pain Intervention Center.

Dr. Waring confirmed that the signature at the bottom of the letter was from a Pain

Intervention Center employee. Considering his testimony on the record concerning

the medical billing, and the fact that counsel for New York Marine had the

opportunity to cross-examine Dr. Waring about his billing, Dr. Waring sufficiently

certified his medical billing records under La. R.S. 13:3714(A), and the trial court

16

did not commit legal error. Accordingly, under an abuse of discretion standard of

review, we find the trial court did not err in admitting Dr. Waring’s medical billing

as evidence.

Assignment of Error Number Four: The trial court erred in accepting Dr.
Waring’s testimony regarding causal relation of Plaintiff, Mrs. Akers’, lumbar
disc symptoms and treatment to the subject accident.

As the fourth assignment of error, New York Marine claims the trial court

erred in causally relating Mrs. Akers’ lumbar disc injuries to the April 2020 accident.

Due to this alleged trial court error, New York Marine asserts Ms. Akers’ past

medical expenses must be reduced to exclude the medical treatment associated with

the radicular pain from her lumbar disc – epidural steroid injection – and her general

damages must be reduced to exclude any pain and suffering associated with her

lumbar disc pain and steroid injection.

“A plaintiff in a tort case has the burden of proving by a preponderance of the

evidence that the accident more probably than not caused the claimed disabling

condition.” Ruffin v. Burton, 2008-0893, p. 4 (La. App. 4 Cir. 5/27/09), 34 So.3d

301, 303 (citing Jones v. Peyton Place, Inc., 1995-0574, p. 12 (La. App. 4 Cir.

5/22/96), 675 So.2d 754, 763). “This burden is satisfied if medical evidence is

presented establishing that it is more probable than not that the claimed condition

was caused by the accident.” Id. at pp. 4-5, 34 So.3d at 303. However,

[A] plaintiff may be aided by a presumption of causation “if before the
accident the injured person was in good health, but commencing with
the accident the symptoms of the disabling condition appear and
continuously manifest themselves afterwards, providing that the
medical evidence shows there to be a reasonable possibility of causal
connection between the accident and the disabling condition.”

Id. at p. 5, 34 So.3d at 304 (citing Housley v. Cerise, 579 So.2d 973, 980 (La.1991)).

Nevertheless, the Housley presumption is not absolute and may be rebutted by

17

“showing that some other particular incident could have caused the disabling

condition.” Id. Ultimately, “[c]redibility determinations, including evaluating and

resolving conflicting testimony, are factual findings governed by the well-settled

manifest error standard of review.” Id.

Dr. Waring was the sole medical expert who testified at trial regarding Mrs.

Akers’ injuries and treatment. He testified that his treatment of Mrs. Akers has

focused on her axial lower back pain arising from her facet joints and radicular spine

pain. As her current treating physician, Dr. Waring definitively related Mrs. Akers’

lower back pain arising from her facet joints to the April 2020 accident. However,

he was hesitant to relate her radicular pain to this accident because Mrs. Akers did

not initially present to him nor Dr. Domangue with this complaint. When Dr. Waring

reviewed Mrs. Akers’ MRIs in preparation for trial, he testified to observing the

right-sided L4-5 disc flattening the fecal sac and speculated that this pathology may

be a cause of her radicular spine pain. He followed up his testimony by opining,

“Some of this may have been there all along.” Dr. Waring further opined that he is

unsure whether the disc flattening the fecal sac predated the accident. Nevertheless,

Dr. Waring acknowledged Mrs. Akers’ radicular pain could be related to his

treatment of the facet pain, which he related to the April 2020 accident.

Regardless of whether the right-sided L4-5 disc flattening the fecal sac

predates the accident, the record clearly establishes that Mrs. Akers never

complained of any back pain or had any back treatment prior to the April 2020

accident. Mrs. Akers testified that she did not have a history of lower back pain or

treatment. Additionally, Dr. Waring acknowledged that he reviewed Dr.

Domangue’s records, and Dr. Domangue related her pain symptoms to the April

2020 accident given Ms. Akers had no previous history of lumbar pain or radicular

18

symptoms before the accident. Furthermore, Dr. Waring testified that Mrs. Akers

presented to him as a patient who had no previous history of back pain or treatment.

New York Marine failed to present any evidence of Mrs. Akers being involved in an

accident, incident, or event prior to the April 2020 accident that could be causally

related to her radicular back pain. Even if her lumbar disc issues predated the April

2020 accident, there is sufficient evidence in the court record to support a finding

that her radicular pain did not appear until after the April 2020 accident. Therefore,

in weighing the credibility of the witnesses and evaluating the potentially conflicting

testimonies, we find that the trial court was not manifestly erroneous in causally

relating Mrs. Akers’ lumbar disc injuries to the April 2020 accident. In light of this

finding, we determine Mrs. Akers’ past medical expenses and general damages

award need not be reduced.

Assignment of Error Number Five: The trial court abused its discretion in denying
Defendants’ motion for new trial.

In its fifth and final assignment of error, New York Marine asserts the trial

court erred in denying its motion for new trial because good grounds existed for a

new trial. The ruling on a motion for new trial is reviewed under an abuse of

discretion standard of review. Sunset Harbour, LLC v. Brown, 2022-0572, p. 9 (La.

App. 4 Cir. 1/9/23), 356 So.3d 1167, 1173 (citing Jouve v. State Farm Fire & Cas.

Co., 2010-1522, p. 15 (La. App. 4 Cir. 8/17/11), 74 So.3d 220, 229). Pursuant to La.

C.C.P. arts. 1972 and 1973, New York Marine avers the grounds to grant a new trial

included the trial court’s judgment being contrary to the law and evidence.5 In its

5 Louisiana Code of Civil Procedure Article 1972 provides:

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

19

motion for new trial, New York Marine asserted: (1) the general damages awards

for the Akers were clearly contrary to the law and evidence; (2) the trial court erred

in determining the future medical expenses for the Akers; (3) Dr. Waring should not

have been allowed to provide “on-the-fly” testimony regarding future medical

expenses; and (4) the trial court committed legal error in admitting uncertified

medical bills of Dr. Waring into the record. All of these assertions were re-urged in

New York Marine’s appeal and have been fully discussed above. We have already

determined that New York Marine’s assignments of error have no merit, and the trial

court did not abuse its discretion in making its rulings and rendering judgment.

Consequently, we find the trial court did not abuse its discretion in denying the

motion for new trial.

DECREE

For the foregoing reasons, we affirm the trial court’s August 10, 2023 bench

trial judgment awarding monetary damages to the Akers; October 24, 2023 judgment

denying Defendants’ motion for new trial; and October 24, 2023 judgment granting

the motion to tax costs filed by the Akers.

AFFIRMED

(1) When the verdict or judgment appears clearly contrary to the law and the
evidence.
(2) When 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.
(3) When the jury was bribed or has behaved improperly so that impartial justice
has not been done.

La. C.C.P. art. 1973 states, “A new trial may be granted in any case if there is good ground
therefor, except as otherwise provided by law.”

20