Dianne Jackson Versus Underwriters at Lloyd's of London, Vic 3 Enterprises, LLC, and Napoleon White

DIANNE JACKSON NO. 21-CA-15

VERSUS FIFTH CIRCUIT

UNDERWRITERS AT LLOYD'S OF LONDON, COURT OF APPEAL
VIC 3 ENTERPRISES, LLC, AND
NAPOLEON WHITE STATE OF LOUISIANA

ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT
PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA
NO. 71,668, DIVISION "C"
HONORABLE J. STERLING SNOWDY, JUDGE PRESIDING

September 29, 2021

JOHN J. LEE, JR.
JUDGE

Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and John J. Lee, Jr.

AFFIRMED
JJL
MEJ
RAC

COUNSEL FOR PLAINTIFF/APPELLEE,
DIANNE JACKSON
Matthew D. Hemmer

COUNSEL FOR DEFENDANT/APPELLANT,
UNITED SPECIALTY INSURANCE COMPANY, VIC 3 ENTERPRISES, LLC
AND NAPOLEON WHITE
George O. Luce
Frederic C. Fondren

LEE, J.

Defendants, United Specialty Insurance Company, Vic 3 Enterprises, LLC,

and Napoleon White, appeal the jury’s verdict in favor of plaintiff, Dianne

Jackson. On appeal, defendants seek a reduction in the amount of damages

awarded for future medical expenses, and plaintiff seeks an increase in the amount

of damages awarded for future pain and suffering. Defendants also challenge the

admissibility of certain evidence. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

This case arises from a motor vehicle accident that occurred on January 20,

2017. In her Petition for Damages, plaintiff, Dianne Jackson, asserts that at

approximately 6:00 a.m., she was operating her vehicle, a Nissan Altima, in an

easterly direction on La. Highway 44 in St. John the Baptist Parish when a Mack

dump truck owned by Vic 3 Enterprises, LLC (Vic 3) and operated by one of Vic

3’s employees, Napoleon White, struck the rear of plaintiff’s vehicle, causing

personal injuries and property damage to Ms. Jackson. The petition names three

defendants: Vic 3; Napoleon White; and United Specialty Insurance Company, as

the liability insurer of Vic 3 and Mr. White.

Trial of this matter was held August 26 – 29, 2019. Thirteen witnesses

testified: Ms. Jackson, Lieutenant Elton Foret, Dr. Randall Poche, Dr. Robert

Dale, Dr. Firas Hijazi, Dr. Mohammad Almubaslat, Dr. Aaron Wolfson, Dr. Shael

Wolfson, Bridgette Stewart, Vincent Davis, Pat Armour, Dr. Gabriel Tender, and

Stacie Nunez. In addition, the video of the collision; photographs of the plaintiff

and Vic 3’s vehicles; the police report; medical records and bills; and the life care

plans of Dr. Aaron Wolfson and Ms. Nunez, among other things, were admitted

into evidence.

At trial, the trial court read defendants’ admission to the jury as follows: “A

motor vehicle accident occurred on January 20th of 2017 where Dianne Jackson

was rear-ended by a 2015 Mack truck operated by Napoleon White during the

course and scope of his employment with Vic 3 Enterprises, LLC. Napoleon

White was the sole cause of the incident, and liability is not contested. Dianne

Jackson sustained injuries as a result of the incident. This is an admission on the

part of Vic 3 Enterprises, Napoleon White and United Specialty Insurance

Company.”

Ms. Jackson testified that on January 20, 2017, she was on her way to work

when someone “slammed” into the back of her vehicle while she was stopped at a

red light. She explained that it was dark and that the impact pushed her vehicle to

the side of the roadway. Ms. Jackson stated that it was a “hard” impact that

caused her to “jerk” so hard that it hurt her neck. She noted that the sound was so

loud that she thought her vehicle was going to “explode.” Ms. Jackson asserted

that she was in a lot of pain following the accident. She testified that after the

accident, a man came over to her to see if she was okay. She recalled that she

leaned on him and told him that she was “dizzy,” like she was going to “pass out.”

Ms. Jackson further testified that when she told the man he had hit her, the man

replied that he did not hit her and that a man in a big dump truck had hit her and

kept going.

Lieutenant Foret of the St. John Parish Sheriff’s Office testified that on

January 23, 2017, he obtained video of the accident from a crime camera located at

LA 44 and Central Avenue in Reserve where the accident occurred, took a still

shot of the dump truck to that location, and learned that the dump truck looked like

one of Chester Victor’s trucks. He contacted Mr. Victor, who told him that the

dump truck was his and that the driver, Mr. White, worked for him.1 Lieutenant

Foret recalled that after viewing the accident on the video, Mr. White admitted to

1
Mr. White did not testify at trial.
2

being involved in the accident. He indicated that Mr. White did not know he had

struck plaintiff’s vehicle until he saw the video. He noted that Mr. White had a

limp when he came to the police station and that Mr. White also walked with a

limp on the video. Lieutenant Foret explained that Mr. White did not give him any

reason as to why he left the scene but noted that Mr. White was concerned about

losing his job. He testified that he cited Mr. White for hit and run and for careless

operation of a motor vehicle. Lieutenant Foret asserted that the hit and run charge

was later nolle prossed, that the other charge was reduced to defective equipment,

and that Mr. White paid the ticket.

At trial, the video of the accident was played for the jury. Lieutenant Foret

explained that the video showed the dump truck approaching the red light, but he

could not tell if it came to a complete stop due to the poor lighting conditions. He

further explained that after the light turned green, he could see plaintiff’s vehicle

“shake” and then move to the side of the roadway as it was being impacted by the

dump truck. Lieutenant Foret pointed out that the video subsequently showed the

dump truck pulling into the Valero gas station across the street, Mr. White walking

across the street to plaintiff’s vehicle, and then walking back to the dump truck,

after which he left the scene.2 He testified that in the police report, Deputy Batiste

indicated that she was “flagged down” after the accident. Lieutenant Foret was

unsure if Mr. White called the sheriff’s office, and Deputy Batiste responded, or if

Deputy Batiste was at the Valero gas station. Lieutenant Foret stated that he could

not confirm if Mr. White was the individual who “flagged down” Deputy Batiste

because it was not shown on the video, and Deputy Batiste was no longer

employed with the sheriff’s office.

2
The video also shows that after Mr. White walked back to the Valero gas station, he walked out of the
view of the camera for a period of time, after which he got into his truck and left.
3

Lieutenant Foret explained that even though it was a “low-speed crash,”

given the size and height of the dump truck, it was possible for plaintiff’s trunk to

be crushed as depicted in the photographs. Defense counsel moved the police

report and narrative supplement into evidence, and plaintiff’s counsel moved the

video and the photographs of the vehicles into evidence.

Dr. Poche, plaintiff’s primary care physician and an expert in the field of

family medicine, testified that his records for plaintiff began on June 12, 2006, and

that he had been plaintiff’s doctor for at least the past thirteen years. He stated that

he was aware that she had been in an accident on January 20, 2017, and noted that

he had not treated her for chronic neck or back problems before the accident. Dr.

Poche testified that the back and neck complaints that plaintiff had before the

accident were muscular strain. He said that she had back or neck complaints in

September of 2008, April of 2010, June of 2013, and September of 2015. Dr.

Poche testified that plaintiff’s first visit after the January 20, 2017 accident was on

February 23, 2017, wherein she complained of chest wall pain, and he prescribed

anti-inflammatory medication for her. He noted that plaintiff went to St. James

Hospital emergency room after the January 20, 2017 accident.

Dr. Dale, plaintiff’s chiropractor, testified that plaintiff first came to his

office on January 27, 2017, because of pain following a motor vehicle accident on

January 20, 2017. He asserted that during her first visit, plaintiff complained of

pain in both shoulders, both sides of her neck and upper back, her low back, her

left leg, and her right and left arms. He stated that plaintiff also complained of

intermittent numbness in both hands. Dr. Dale testified that he performed an

examination and obtained x-rays. He explained that plaintiff had degenerative

joint and disc disease that was present before the accident, which made her more

susceptible to injury. Dr. Dale testified that it was more likely than not that her

symptomology was caused by the January 20, 2017 accident and that he was able
4

to give that opinion to a reasonable degree of chiropractic certainty. He stated that

he treated her fifty-six times over six months, from January 27, 2017 to June 19,

2017, after which he referred her to a neurosurgeon.

Dr. Dale requested MRIs of plaintiff’s cervical spine, thoracic spine, lumbar

spine, and left knee which were done on March 29, 2017. The MRI report of the

cervical spine indicated that plaintiff had central and right lateral disc herniation,

cord compression and bilateral foraminal stenosis at C3-4; central and right lateral

spondylosis, cord compression, and bilateral foraminal stenosis at C4-5; minor

central spondylosis and advanced bilateral foraminal stenosis at C5-6; and a large

right lateral disc herniation, right cord compression, and bilateral foraminal

stenosis at C7-T1.

Dr. Hijazi, plaintiff’s pain management physician, was accepted as an expert

in the fields of anesthesia and interventional pain management. He testified that

plaintiff came to see him on April 25, 2017, complaining of back and neck pain but

mainly neck pain radiating into the shoulder blades. Dr. Hijazi further testified that

he reviewed the neck MRI, which he said showed three herniations in her cervical

spine, mainly at C3-4. He asserted that those cervical MRI findings were

consistent with her symptoms. He stated that he performed an examination

wherein he found muscle spasms in her neck and limited range of motion in her

neck and shoulders. Dr. Hijazi testified that he gave plaintiff a shoulder injection

during her first visit, but it provided limited relief, which told him it was not a

shoulder issue. Dr. Hijazi further testified that on June 9, 2017, he gave her a

cervical epidural steroid injection, which gave her excellent relief for the radiating

pain down her left arm; however, the pain gradually returned, which told him that

the symptoms were coming from the disc. He thought plaintiff might benefit from

surgery, so he referred her to Dr. Almubaslat for a neurological consult.

5

Dr. Hijazi testified that on July 20, 2017, he gave her a facet block injection,

which provided good relief. He stated that in July of 2017, he started plaintiff on

Norco, a narcotic pain medication, and Duexis, an expensive anti-inflammatory

medication containing ibuprofen and an antacid, but he had concerns of addiction

issues with respect to the narcotic medication. Dr. Hijazi asserted that at some

point plaintiff’s pain increased, so he kept increasing her pain medication until he

could no longer do so. He noted that plaintiff lost her insurance coverage and was

unable to proceed with injections, but he would have continued to recommend

injections and other pain management procedures if she had been able to afford

them. He indicated that he stopped prescribing Duexis when she lost her

insurance.

Dr. Hijazi testified that his diagnosis was disc herniation with radiculopathy,

cervical spine stenosis (a consequence of the disc herniation), facet arthropathy,

and cervical and lumbar facet arthropathy. In his opinion, the disc herniation was

most likely caused by the January 20, 2017 accident. He was able to give that

opinion to a reasonable degree of medical certainty. Dr. Hijazi testified that all of

the treatment he provided to plaintiff and all of the medications he prescribed had

been necessitated by the January 20, 2017 accident.

Dr. Hijazi testified regarding his plan for plaintiff’s pain management. He

asserted that she would benefit from epidural injections for her shooting pain down

the arms and from facet treatments and radiofrequency ablations for her facet joint

pains in the lower back and neck. He explained that the cervical injections should

be done based on her symptoms. Dr. Hijazi recommended up to three cervical

epidural steroid injections per year, up to two cervical radiofrequency ablations per

year for eight years, and two lumbar ablations per year for eight years. He

explained that Dr. Almubaslat’s recommendation of an “ACDF” fusion would help

for the levels treated but would not help for the levels above and below. He stated
6

that fusion might increase degeneration above and below the fusion, and therefore,

plaintiff might need more facet treatments in the future. Dr. Hijazi said he started

her treatment in April of 2017 and that her last treatment was in July of 2019.

Dr. Almubaslat, who was accepted as an expert in the field of neurosurgery,

testified that he first saw plaintiff on August 7, 2017, and that he last saw her on

September 18, 2017. He further testified that during the first visit, plaintiff

complained of neck pain; pain coming down to the left shoulder; pain coming

down her arm, forearm, and hand; and numbness, tingling, and weakness in her left

arm and hand. He asserted that these were the traditional symptoms of nerve

compression or spinal cord compression. Dr. Almubaslat stated that plaintiff said

she had some improvement in the pain following treatment but that the pain was

coming back, and the weakness was getting worse. He said that the MRI report

indicated that plaintiff had significant degenerative changes, disc disease, disc

herniation, disc protrusion, disc extrusion, spondylosis, and stenosis. Dr.

Almubaslat testified that plaintiff’s symptoms during her clinical presentation were

consistent with what he saw on her MRI.

It was Dr. Almubaslat’s opinion that the extruded discs at C3-4 and C7-T1

were completely new injuries caused by the January 20, 2017 accident. It was also

his opinion that the other levels became symptomatic because of the accident. Dr.

Almubaslat testified that he was able to give those opinions to a reasonable degree

of medical certainty. He stated that he believed the January 20, 2017 accident

more likely than not caused plaintiff’s disc injuries because she was able to work

before but not after the accident; she had no symptoms or treatment for her cervical

spine before the accident, but afterward there were abrupt, significant changes in

her symptoms and treatment; the extruded disc seen on the MRI very highly

correlated with a traumatic event; and there was consistency between the MRI and

her symptoms.
7

Dr. Almubaslat further testified that he recommended a C3-4 and C4-5

surgery to remove pressure on both of those discs and fuse the spine, which he

explained was referred to as an “ACDF”—an anterior cervical discectomy fusion.

He explained that those levels were the ones definitely causing stenosis and were

the most dangerous because C3-4 was pressing on the spinal cord. As such, he

believed those levels needed to be addressed immediately. Dr. Almubaslat noted

that there was the risk of fusion failure if the bone did not grow. He testified that

after a period of recovery, if plaintiff still had symptoms at C7-T1, then he would

recommend a second surgery, which could involve one, two, or three levels. Dr.

Almubaslat explained that plaintiff had significant findings at all five levels but

that it would be too dangerous to operate on all five discs at the same time. He

testified that more likely than not plaintiff would also need surgery at C7-T1 at

some point in time. He noted that there was pretty significant compression at that

level. Dr. Almubaslat indicated that there was a risk of paralysis if plaintiff did not

get the first or second surgeries. It was his opinion that the first and the second

surgeries “were made reasonably medically certain” by the January 20, 2017

accident.

Dr. Aaron Wolfson, who was accepted as an expert in life care planning and

vocational rehabilitation, testified that he was asked to determine how the accident

and injuries affected plaintiff’s ability to work and what future medical care

plaintiff would require as a result of the accident. He further testified that he

calculated those costs throughout her life expectancy after meeting with Ms.

Jackson, reviewing her medical records, talking to Dr. Almubaslat and Dr. Hijazi,

reviewing their depositions, and researching costs to obtain a range from the least

to the most expensive. Defense counsel moved Dr. Aaron Wolfson’s life care plan

research worksheet into evidence, and plaintiff’s counsel moved Plaintiff’s Exhibit

8

Book, which contained Dr. Aaron Wolfson’s report dated July 26, 2019, into

evidence.3

Dr. Shael Wolfson, who was accepted as an expert in the field of forensic

economics, testified that he was asked to provide estimates of economic loss

regarding plaintiff’s wages4 and to take Dr. Aaron Wolfson’s life care plan and

calculate the present value of the medical costs. Plaintiff’s counsel moved Dr.

Shael Wolfson’s report and calculations into evidence.

The pertinent figures from that report are as follows:

Lower Upper

Future Medical Care $ 23,999 $ 54,515
Projected Evaluations $ 925 $ 1,095
Therapeutic Modalities $ 345 $ 810
Laboratories/Diagnostics $ 684 $ 1,995
Surgeries/Procedures $443,463 $1,183,362
Medications $710,938 $1,111,289
Equipment and Supplies 169 $ 908
Household Upkeep $ 11,960 $ 16,560

Total $1,192,483 $2,370,534

Midpoint figures were also provided. Two of these categories were further

broken down. The surgeries/procedures included: cervical epidural steroid

injections—$9,019 to $342,417; cervical radiofrequency ablation—$38,593 to

$156,226; bilateral lumbar facet blocks—$3,742 to $8,546; two-level ACDF—

$179,583 to $219,271; and three-level ACDF—$161,706 to $234,620. The

medications included: hydrocodone—$33,396 to $35,522, and Duexis—$677,541

to $1,075,768.

Ms. Stewart testified that she was the Director of Housekeeping at the Hilton

New Orleans Airport and had been Ms. Jackson’s direct supervisor for two-and-a-

half years. She explained that Ms. Jackson’s job entailed cleaning the public space

3
Dr. Aaron Wolfson’s report indicates that the expectation of remaining life at age sixty-two for women is
twenty-three years. The record reflects that plaintiff’s date of birth is January 12, 1957, making her sixty years old
at the time of the accident.
4
These figures are not provided because defendants do not challenge them on appeal.
9

area as a lobby attendant, which involved a lot of pushing, pulling, and lifting. She

further testified that Ms. Jackson worked at the Hilton for a total of twenty-five to

thirty years and was an “awesome” employee.

Mr. Davis testified that he and Ms. Jackson had been friends for fifteen

years. He further testified that after the accident, Ms. Jackson was in a lot of pain,

which never improved. Mr. Davis asserted that before the accident, Ms. Jackson

was a “happy-go-lucky” person, but afterwards she was a moody person who

missed her job and did not have the drive to engage in activities any longer. Ms.

Armour testified that Ms. Jackson was her sister. She further testified that since

the accident, Ms. Jackson, was always sad and in pain. Ms. Armour noted that Ms.

Jackson was not the same person after the accident as she was before the accident.

After plaintiff rested her case, the defense called Dr. Tender, who was

accepted as an expert in the field of neurosurgery. Dr. Tender testified that he was

asked to see Ms. Jackson for a neurosurgical opinion, after which he performed an

independent medical examination (IME) on her and reviewed her medical records.

Dr. Tender further testified that only plaintiff’s C3-4 and C4-5 discs were

symptomatic, and he recommended addressing only those levels with an anterior

cervical discectomy and fusion. He thought surgery at those two levels was a

treatment option but not mandatory. He did not believe that C7-T1 was causing

plaintiff’s radiculopathy, and therefore, he stated that he would not address the

lower three levels mentioned by Dr. Almubaslat. Dr. Tender explained that the

disc herniation at C7-T1 was on the right and that it would press on the C8 spinal

nerve, which would impact certain fingers and the side of the hand but that plaintiff

did not describe that kind of pain. He also explained that a five-level fusion was a

major undertaking that was not indicated and that she would barely be able to

move after such a fusion. Dr. Tender testified that plaintiff’s pathology was clearly

degenerative rather than traumatic in nature, and therefore, unlikely to have been
10

caused by any accident; however, he noted that plaintiff’s symptoms seemed to

have been aggravated by the January 20, 2017 accident.

The defense also called Ms. Nunez as a witness. Ms. Nunez, who was

accepted as an expert in the fields of life care planning and vocational

rehabilitation, testified that she was asked to perform a vocational assessment and a

life care plan for plaintiff. She further testified that she met with Ms. Jackson,

spoke to Dr. Tender, and reviewed medical records. Ms. Nunez stated that she

prepared a report, which contained the following medical projection costs as

recommended by Dr. Tender in pertinent part:

Medical Service/Item Frequency Average One-Time Cost

ACDF – two-level Once $113,006.67
Neurosurgeon 4 times after surgery $ 880.00
Cervical CT scan Once $ 475.00
Physical Therapy Evaluation Once $ 128.33
Physical Therapy 2-3 times per week $ 1,487.50
for 6-8 weeks
Vicodin 10/325 mg. 1 every 4-6 hours $ 512.61-$765.15
for 3 months
OTC anti-inflammatory 1 every 4-6 hours Average annual cost -
$115.20-$172.80

Total $116,490.11-
$116,742.32

Defense counsel moved Ms. Nunez’s report into evidence.

At the conclusion of the trial, the jury rendered judgment in favor of plaintiff

and against defendants and awarded plaintiff damages in the following amounts:

Past Medical Expenses $ 24,946.24
Past Loss of Earnings $ 82,163.00
Future Medical Expenses $1,100,000.00
Future Loss of Earnings $ 150,083.00
Past Pain and Suffering, Mental Anguish $ 150,000.00
Past Loss of Enjoyment of Life $ 50,000.00
Future Pain and Suffering, Mental Anguish $ 50,000.00
Future Loss of Enjoyment of Life $ 25,000.00

Total Damages $1,632,192.24

11

The trial court entered a judgment on the jury verdict on September 11,

2019. On September 18, 2019, defendants filed Defendants’ Motion for Judgment

Notwithstanding the Verdict or Alternatively for a New Trial that was denied on

November 15, 2019. The trial court found that “reasonable minds could have

arrived at the verdict handed down in this case.”

Defendants and plaintiff have appealed the jury’s verdict.

STANDARD OF REVIEW

In reviewing findings of fact, appellate courts employ a “manifest error” or

“clearly wrong” standard of review. Antill v. State Farm Mut. Ins. Co., 20-131

(La. App. 5 Cir. 12/2/20), 308 So.3d 388, 401-02 (citing Rosell v. ESCO, 549

So.2d 840, 844 (La. 1989)). Where there is a conflict in the testimony, reasonable

evaluations of credibility and reasonable inferences of fact should not be disturbed

upon review, even though the appellate court may feel its own evaluations and

inferences are more reasonable. Id. Where there are two permissible views of the

evidence, the fact-finder’s choice between them cannot be manifestly erroneous or

clearly wrong. Id. While an appellate court must review the conclusions in light

of the entire record, it “must be cautious not to re-weigh the evidence or to

substitute its own factual findings just because it would have decided the case

differently.” Antill v. State Farm Mut. Ins., supra (citing Menard v. Lafayette Ins.

Co., 09-1869 (La. 3/16/10), 31 So.3d 996, 1007).

DISCUSSION

Defendants’ Assignment of Error Number One

In the first assignment of error, defendants argue that the jury’s award of

$1,100,000 in future medical expenses is grossly excessive and not supported by

medical evidence showing that the expenses are necessary and inevitable. They

assert that there were improperly supported items in plaintiff’s life care plan,

including two neck surgeries and alternative courses of treatment that should be
12

obviated by surgery; a second neck surgery involving three levels even though Dr.

Almubaslat had “no idea” how many levels might be involved; pain medication

inflated by several hundred thousand dollars resulting from a miscalculation by Dr.

Wolfson regarding the cost of Duexis; epidural steroid injections with a cost

estimate ranging from $8,178 to $310,500, with the large range driven by what Dr.

Wolfson admitted was contradictory information presented by Dr. Hijazi about

desired frequency; interventional procedures for which Dr. Hijazi failed to provide

the number of spinal levels involved leaving Dr. Wolfson, a non-medical doctor, to

guess at medical recommendations for cost purposes; extensive treatment

recommended to plaintiff years ago that she avoided for a lot of reasons according

to Dr. Hijazi; routine neurosurgical care that Dr. Wolfson admitted should be

removed from the life care plan once plaintiff has her recommended surgery; and

$45,885 in compliance drug testing based on the assumption, which was

contradicted by Dr. Hijazi, that plaintiff will be on narcotics for the rest of her life.

Defendants argue that when these unsupported items are eliminated from

consideration, the life care plan does not support anything approaching $1,100,000

in future medical expenses. They ask this Court to either reduce plaintiff’s future

medical expenses to an amount not to exceed $263,016.44, which they argue is the

highest award that could conceivably be justified, and remand to the trial court for

an appropriate adjustment in judicial interest, or remand for a new trial on the issue

of damages with all costs assessed to plaintiff.

Plaintiff responds that the award of $1,100,000 in future medical expenses is

not reversible error because evidence introduced during trial supports multiple

combinations of future treatment that exceed that figure. She further responds that

defendants cannot complain about the calculations included in Dr. Wolfson’s life

care plan when they themselves moved these documents into evidence.

13

Plaintiff contends that the jury could have properly determined that her

condition stabilized under the pharmacological plan and awarded $1,100,000 for

prescriptions and related treatment without any awards for future surgeries or pain

management procedures. She asserts alternatively that the jury could have

properly awarded $1,100,000 in future medical expenses by calculating the cost of

the first cervical surgery, lumbar pain management procedures, cervical radio

frequency ablations, and some low amount of prescriptions. Plaintiff further

asserts that the jury could have calculated $1,100,000 in future medical expenses

by awarding her the costs of both cervical surgeries, lumbar injections, and the

lowest recommended prescription drug costs. She also contends that the jury could

have calculated $1,100,000 in proper future medical expenses using some other

combination of treatment because none of the parties proposed a jury interrogatory

that included any breakdown of future medical expenses by type.

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. Mendoza v.

Mashburn, 99-499, 99-500 (La. App. 5 Cir. 11/10/99), 747 So.2d 1159, writ

denied, 00-37 (La. 2/18/00), 754 So.2d 976. 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. Menard v. Lafayette Ins. Co., 31 So.3d at 1006. “Awards will not be

made in the absence of medical testimony that they are indicated and setting out

their probable cost.” LeMasters v. Boyd Gaming Corp., 04-1054 (La. App. 5 Cir.

2/15/05), 898 So.2d 497, 503, writ denied, 05-751 (La. 5/6/05), 901 So.2d 1103.

An award for future medical expenses is in great measure highly speculative

and not susceptible to calculation with mathematical certainty and generally turns

on questions of credibility and inferences. Menard v. Lafayette Ins. Co., 31 So.3d
14

at 1006-08. Before reversing a jury’s conclusions of fact, an appellate court 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 conclusions, and the finding must be

clearly wrong. Guillory v. Ins. Co. of N. Am., 96-1084 (La. 4/8/97), 692 So.2d

1029, 1032. Credibility determinations are for the trier of fact, even as to the

evaluation of expert witness testimony. Green v. K-Mart Corp., 03-2495 (La.

5/25/04), 874 So.2d 838, 843. A fact-finder may accept or reject the opinion

expressed by an expert, in whole or in part. Id.

When a trier of fact assesses special damages, the discretion is more limited

or narrower than the discretion to assess general damages. Dufrene v. Gautreau

Family, LLC, 07-467, 07-547 (La. App. 5 Cir. 2/22/08), 980 So.2d 68, 83, writs

denied, 08-629 (La. 5/9/08), 980 So.2d 694 and 08-628 (La. 5/9/08), 980 So.2d

698. The standard of review, however, is still that of abuse of discretion. Id.

In the instant case, plaintiff and defendants presented very different life care

plans at trial. Dr. Aaron Wolfson, plaintiff’s expert in life care planning and

vocational rehabilitation, testified that he calculated the costs of plaintiff’s future

medical care after meeting with plaintiff, reviewing her medical records, talking to

Dr. Almubaslat and Dr. Hijazi (her treating physicians), reviewing their

depositions, and researching costs. His life care plan contained the costs for

plaintiff’s future medical care, which included projected evaluations, therapeutic

modalities, laboratories/diagnostics, surgeries/procedures, medications

(hydrocodone and Duexis), equipment/supplies, and household upkeep. Dr. Shael

Wolfson, plaintiff’s expert in forensic economics, took Dr. Aaron Wolfson’s life

care plan and calculated the present value of the medical costs, providing lower,

mid-point, and upper ranges. The lower range was $1,192,483; the mid-point

range was $1,781,508; and the upper range was $2,370,534.

15

Stacie Nunez, defendants’ expert in life care planning and vocational

rehabilitation, testified that she calculated the costs of plaintiff’s future medical

care after speaking to Dr. Gabriel Tender, defendants’ neurosurgery expert who

performed an IME on plaintiff, and after reviewing plaintiff’s medical records.

Her life care plan contained the costs for plaintiff’s future medical care, which

included an ACDF two-level surgery, neurosurgeon fees, a cervical CT scan, a

physical therapy evaluation, physical therapy, and medication (Vicodin and anti-

inflammatories). Ms. Nunez provided a range of $116,490.11 to $116,742.32.

After listening to the testimony and considering both life care plans, the jury

clearly believed plaintiff’s witnesses and awarded plaintiff $1,100,000 in future

medical expenses. That award was $92,483 less than the most conservative

amount in the life care plan prepared by plaintiff’s experts but far more than the

amount in the life care plan prepared by defendants’ expert.

It is impossible for us to determine how the jury decided to award the

$1,100,000, since it was not asked to award future medical expenses by category.

Nevertheless, the evidence admitted at trial supports multiple combinations of

future treatment. The jury may have awarded plaintiff money for medications and

other expenses without any award for surgeries or alternative treatments, or it may

have awarded money for the first surgery and some alternative treatments and

medications. Or, the jury may have awarded money for both surgeries and some

medications, or it may have awarded money for most of the expenses in the upper

range except for Duexis. Or, the jury may have awarded plaintiff money for all of

the surgeries and alternative treatments and some of the medications in the lower

range in the event that the surgeries failed, which Dr. Almubaslat admitted could

occur. There are several other combinations of future medical treatment expenses

that the jury could have properly awarded as well.

16

On appeal, defendants specifically challenge the high-priced items in Dr.

Aaron Wolfson’s life care plan, which include the two neck surgeries, the

alternative courses of treatment (steroid injections, facet blocks, and

radiofrequency ablations), and the medications. Defendants argue that the costs for

alternative courses of treatment should be obviated by the two neck surgeries;

however, Dr. Hijazi indicated that plaintiff might need some alternative courses of

treatment based on her symptoms even if she has the first surgery. He explained

that the first surgery would help with the levels treated but would not help for the

levels above and below.

Defendants also argue that the costs for Duexis, an anti-inflammatory

medication, were improperly calculated by Dr. Wolfson; however, a review of the

testimony reveals that those costs were properly calculated. Although Dr. Aaron

Wolfson initially testified that Duexis costs $67 to $106 for thirty tablets, he then

testified immediately thereafter that for one pill a day, the cost would be $24,436

to $38,799 per year. If those figures are divided by 365 days, the cost per pill

would be approximately $67 and $106, respectively. Also, Dr. Aaron Wolfson

testified that Dr. Hijazi stated in his deposition that if plaintiff had not lost her

health insurance, he would have continued to prescribe Duexis because she was

doing well on that medication.

Defendants further argue that costs for a second surgery should not be

allowed because Dr. Almubaslat did not know if that surgery would be

recommended and if so, whether it would be for one, two, or three levels. At trial,

Dr. Almubaslat testified that it was more likely than not that plaintiff would need a

second surgery at C7-T1 as there was significant compression at that level. It was

his opinion that the first and second surgeries were made reasonably medically

certain by the January 20, 2017 accident. A plaintiff does not have to prove that

future surgery is “absolutely necessary” but only that such care is medically
17

necessary to correct conditions which presently exist. Hoskin v. Plaquemines

Parish Government, 97-61 (La. App. 4 Cir. 12/1/97), 703 So.2d 207, 210-11, writs

denied, 98-270, 98-271 (La. 4/3/98), 717 So.2d 1129. We find that plaintiff proved

at trial that the first and second surgeries are medically necessary to correct

conditions which plaintiff currently has.

In conclusion, the jury was presented with two life care plans and chose the

plan prepared by plaintiff’s experts. Where there are two permissible views of the

evidence, the fact-finder’s choice between them cannot be manifestly erroneous or

clearly wrong. Antill, supra. We find no error in the jury’s determination. Dr.

Aaron Wolfson testified at length about his proposed life care plan and gave

adequate reasons for the necessity and cost of its elements. We find that

$1,100,000 is not an unreasonable award for the significant injuries and future life

care sums testified to at trial. As such, we affirm the jury’s award of future

medical expenses.

Defendants’ Assignment of Error Number Two

In the second assignment of error, defendants argue that the trial court erred

by allowing the jury to be given irrelevant, inflammatory, and misleading evidence

suggesting that the accident was the result of a hit and run by defendants. They

contend that despite their admission of liability and general objection to all liability

evidence by way of a motion in limine, the trial court erroneously allowed plaintiff

to prove liability at trial. Defendants further contend that given that the collision

was a low-speed one, it appeared that plaintiff insisted on presenting her case for

liability in order to introduce other crimes evidence to smear them and prejudice

the jury. They argue that the attacks on Mr. White, especially those related to

accusations that he committed a hit and run, were unduly prejudicial. Defendants

note that Mr. White did not testify at trial and was not prosecuted for hit and run.

18

Plaintiff responds that the trial court did not commit reversible error by

accepting evidence of the events following the collision when that evidence was

introduced by defendants and was needed to rebut multiple defense theories. She

also asserts that testimony that Mr. White attempted a hit and run was necessary to

rebut defendants’ false narrative that the collision was a minor impact that he

might not have even noticed. She further responds that defendants’ motion in

limine was flawed from the start because it was premised on the material

misrepresentation that all parties joined in the stipulation. Plaintiff said she

informed defendants that she did not agree to a stipulation regarding liability.

Plaintiff also points out that during Lieutenant Foret’s testimony, defendants

never objected to any question regarding the circumstances of the collision. She

further states that defendants themselves moved the entire police report and

supplemental investigation into evidence. Plaintiff argues that defendants cannot

complain about evidence that they themselves moved into evidence and never

objected to. She contends that even if the trial court erred by admitting the

officer’s testimony regarding Mr. White, which she denies, any error is harmless

because the evidence was cumulative. Plaintiff also responds that she is allowed to

present the totality of her case to the jury and that the facts of defendants’ conduct

and liability lends itself to proof of other elements of damages, such as fright, fear,

and mental anguish.

Relevant evidence is 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. La. C.E. art. 401. All

relevant evidence is admissible except as otherwise provided by positive law, and

evidence which is not relevant is not admissible. La. C.E. art. 402. Although

relevant, evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or
19

misleading the jury, or by considerations of undue delay, or waste of time. La.

C.E. art. 403. As a general rule, trial courts are afforded great discretion

concerning the admission of evidence, and their decisions to admit or exclude

evidence should not be reversed on appeal in the absence of an abuse of their

discretion. See Medine v. Roniger, 03-3436 (La. 7/2/04), 879 So.2d 706;

Perniciaro v. Hamed, 20-62 (La. App. 5 Cir. 12/16/20), 309 So.3d 813, 834.

Error may not be predicated upon a ruling which admits or excludes

evidence unless a substantial right of the party is affected. La. C.E. art. 103(A).

Erroneous evidentiary rulings are subject to a harmless error analysis. Metairie

Club Gardens Ass’n, Inc. v. Par. of Jefferson, 16-139 (La. App. 5 Cir. 12/28/16),

209 So.3d 1071, 1077 (citing Lapuyade v. Rawbar, Inc., 15-705 (La. App. 5 Cir.

04/13/16), 190 So.3d 1214, 1220, writs denied, 16-908 (La. 9/6/16), 199 So.3d 610

and 16-916 (La. 9/6/16), 199 So.3d 611; Finch v. ATC/Vancom Mgmt. Srvs. L.P.,

09-483 (La. App. 5 Cir. 01/26/10), 33 So.3d 215, 221). Moreover, where evidence

is admitted that is merely cumulative of other evidence in the record, any error in

its admission is harmless. Id.

In Palmer v. Goudchaux/Maison Blanche, Inc., 588 So.2d 737, 740-41 (La.

App. 5 Cir. 1991), writ denied, 590 So.2d 1186 (La. 1992), this Court upheld the

trial court’s ruling admitting evidence of the incident5 even though the defendant

stipulated to liability. In that case, the defendant argued that admission of the

security camera videotape of the incident and still frames taken from the tape was

error because its stipulation as to liability rendered the videotape irrelevant.

Alternatively, the defendant argued that even if the videotape was relevant, its

probative value was outweighed by its prejudicial effect, citing Article 403. This

Court noted that the trial judge had reviewed the videotape and ruled it admissible

5
A customer filed a personal injury action against the department store after he was injured in a physical
altercation with a store security guard.
20

because he found it relevant to the issue of what damages the plaintiff suffered

from this incident. Citing Article 103(A), this Court did not find that the trial

judge abused his discretion in ruling that the videotape was relevant, noting that

the plaintiff testified as to his version of events and that the videotape corroborated

that version up to the point when the security guard reached him. This Court also

found that the videotape was a visual recording of at least some of the events for

which the plaintiff was seeking damages, and therefore, it was clearly relevant to

the jury’s determination of what actually transpired. As to the issue of prejudice,

this Court found none that could possibly have outweighed the probative value of

the videotape or otherwise adversely affected any substantial right of the

defendant.

In the instant case, the record reflects that on August 9, 2019, defendants

filed a Stipulation of Liability wherein they alleged that it was entered into by “all

parties.” Thereafter, on August 15, 2019, defendants filed a motion in limine to

exclude any evidence of and reference to defendants’ liability at trial. On August

20, 2019, plaintiff filed a motion to strike and for sanctions and an opposition to

defendants’ motion in limine. In her motion, plaintiff asserted that she did not

agree to a stipulation of liability and argued that defendants falsely alleged that she

entered into the stipulation. As such, plaintiff asked that the stipulation be stricken

and that she be allowed to present her full case and prove all necessary elements of

her damages to the jury.

According to the August 22, 2019 minute entry, defense counsel moved to

have the stipulation for liability accepted, but plaintiff’s counsel did not agree to

the stipulation. After extensive argument, defense counsel moved to use the phrase

“admission of liability” instead of “stipulation of liability,” which the trial court

accepted. Defense counsel then moved to exclude the testimony of the police

officer. Following arguments of counsel, the trial court ruled that it would allow
21

the testimony of the police officer at trial. Defense counsel and plaintiff later

agreed that defendants’ admission of liability would be read to the jury. The trial

court later read the admission to the jury.

During her opening statement, defense counsel said that she and plaintiff’s

counsel had very different ideas of how the accident happened and about plaintiff’s

injuries. Defense counsel stated that they did agree that this case was about a hit

and run rear-end accident. She noted that Mr. White did not know at the time that

he had made contact with plaintiff’s vehicle. She told the jury to ask themselves,

“What kind of impact was this accident?” and “What kind of injuries resulted from

the accident, as opposed to what kind of injuries were predating the accident and

not caused by it?”

Lieutenant Foret, the first witness at trial, testified regarding the facts and

circumstances surrounding the accident. Defense counsel made two objections that

were overruled which pertained to whether the truck had been recently washed and

to the playing of the entire videotape of the accident. She did not object to

questions regarding details of the accident. Nevertheless, even though defendants

did not make contemporaneous objections at trial to the evidence in question, we

will consider defendants’ assignment since the trial court denied defendants’

motion in limine. (See State v. Parker, 421 So.2d 834, 840 (La. 1982), cert.

denied, 460 U.S. 1044, 103 S.Ct. 1443, 75 L.Ed.2d 799 (1983), where the

Louisiana Supreme Court considered a defendant’s other crimes challenge to

events surrounding his arrest even though he did not make a contemporaneous

objection to the testimony because the trial court had denied his motion in limine.)

After reviewing the facts of the instant case and pertinent jurisprudence, we

find that the trial court did not abuse its discretion by admitting evidence that Mr.

White engaged in a hit and run accident with plaintiff. First, the evidence was

relevant, not to the issue of liability, but to the issue of what damages plaintiff
22

suffered from this accident. Second, the evidence was relevant to rebut the

assertions made by defense counsel in her opening statement that Mr. White left

the scene because he did not think he had struck plaintiff’s vehicle. Third, even if

the evidence was erroneously admitted, it was cumulative and therefore harmless,

as the police report, which was admitted into evidence, contained details of the

accident. Fourth, defense counsel herself moved the police report into evidence.

Additionally, we find that the probative value of the evidence was not substantially

outweighed by the danger of unfair prejudice, and the admission of the evidence

did not adversely affect a substantial right of defendant. See La. C.E. art. 103(A);

La. C.E. art. 403; Palmer v. Goudchaux/Maison Blanche, Inc., supra. Further, it is

noted that although Lieutenant Foret testified that defendant was charged with hit

and run, he later indicated that charge was dismissed.

This assignment is without merit.

Plaintiff’s Assignment of Error

In her sole assignment of error, plaintiff argues that the jury ruled without

reasonable basis when it awarded her only $75,000 for future pain and suffering

when it simultaneously found that her injuries were severe enough to require more

than a million dollars’ worth of treatment following the trial. She further argues

that the lowest award she could find in Louisiana was $350,000 in Savant v. Hobby

Lobby Stores Inc., 12-447 (La. App. 3 Cir. 11/7/12), 104 So.3d 567, where Savant

underwent two separate neck surgeries, a single-level procedure followed by a

three-level procedure. Plaintiff claims that the appellate court in Savant

determined that $350,000 was the lowest possible reasonable figure. She asserts

that in her case the figure would be $403,975 in today’s money based on an annual

inflation rate of 1.61%, citing Pete v. Department of Corrections, 17-1131 (La.

App. 3 Cir. 5/9/18), 247 So.3d 1084. Plaintiff asks that her future general damages

23

be increased to $203,975 so that her total past and future general damages would

be $403,975.

Defendants respond that plaintiff is not entitled to more than the $275,000 in

general damages that the jury awarded to her. They further respond that Savant did

not hold that $350,000 was the lowest amount of general damages that could be

reasonably awarded in a two-level neck surgery. Rather, defendants argue that the

appellate court held that the trial court did not abuse its discretion in awarding that

much. Defendants also note that the fact pattern in Savant is very different from

that of the instant case. Further, they contend that there are many other Louisiana

cases involving multiple spinal surgeries where lower general damages were

awarded than plaintiff received, citing Monte v. State Farm Mut. Auto. Ins. Co.,

13-979 (La. App. 3 Cir. 5/21/14), 139 So.3d 1139, which they said affirmed

$200,000 in general damages to a plaintiff who underwent two separate cervical

fusions.

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 intellectual gratification or physical enjoyment, or other

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

Duncan v. Kansas City Southern Railway Co., 00-66 (La. 10/30/00), 773 So.2d

670 (citing Keeth v. Dept. of Pub. Safety & Transp., 618 So.2d 1154, 1160 (La.

App. 2 Cir. 1993)). Vast discretion is accorded the trier of fact in fixing general

damage awards. Duncan v. Kansas City Southern Railway Co., supra (citing La.

C.C. art. 2324.1; Hollenbeck v. Oceaneering Int., Inc., 96-377 (La. App. 1 Cir.

11/8/96), 685 So.2d 163, 172, writ denied, 97-493 (La. 4/4/97), 692 So.2d 421.

This vast discretion is such that an appellate court should rarely disturb an award

of general damages. Duncan v. Kansas City Southern Railway Co., supra (citing

Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260-61 (La.1993), cert.
24

denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994)). 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. Id.

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. Tamayo v.

Am. Nat. Gen. Ins. Co., 14-130 (La. App. 5 Cir. 9/24/14), 150 So.3d 459, 470

(citing Cone v. National Emergency Serv., Inc., 99-0934 (La. 10/29/99), 747 So.2d

1085, 1089; Reck v. Stevens, 373 So.2d 498 (La. 1979)). Only after a

determination that the trier of fact has abused its “much discretion” is a resort to

prior awards appropriate and then only for the purpose of determining the highest

or lowest point which is reasonably within that discretion. Tamayo v. Am. Nat.

Gen. Ins. Co., supra (citing Coco v. Winston Indus., Inc., 341 So.2d 332 (La.

1976)).

The abuse of discretion standard of review applies when an appellate court

examines a fact-finder’s award of general damages. Wainwright v. Fontenot, 20-

492 (La. 10/17/00), 774 So.2d 70, 74. The assessment of the appropriate amount

of damages, by a trial judge or jury is a determination of fact, one entitled to great

deference on review. Id.

In the instant case, the record reflects that the jury awarded plaintiff $50,000

in future pain and suffering and mental anguish, $25,000 in future loss of

enjoyment of life, $150,000 in past pain and suffering and mental anguish, and

$50,000 for past loss of enjoyment of life, for a total of $275,000 in general

damages. Plaintiff argues that the $75,000 amount for future pain and suffering,

mental anguish, and future loss of enjoyment of life was too low. However, the

jury heard the testimony and considered the evidence. It could have reasonably

found that plaintiff’s pain and suffering would be less in the future after she had
25

the recommended surgeries and procedures and/or took the recommended

medications. Based on our review of the testimony and the evidence, we find that

the jury did not abuse its discretion in its general damage award. Therefore, we

need not look to prior awards as suggested by plaintiff. Only after finding that the

award constitutes an abuse of discretion is a resort to prior awards appropriate and

then only for the purpose of determining the highest or lowest point which is

reasonably within that discretion. See Tamayo v. Am. Nat. Gen. Ins. Co., supra.

CONCLUSION

For the foregoing reasons, we affirm the judgment in this matter.

AFFIRMED

26

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
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SEPTEMBER 29, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

21-CA-15
E-NOTIFIED
40TH DISTRICT COURT (CLERK)
HONORABLE J. STERLING SNOWDY (DISTRICT JUDGE)
AUSTIN MARKS (APPELLEE) MATTHEW D. HEMMER (APPELLEE) PRZEMEK M. LUBECKI (APPELLEE)
MITCHELL J. HOFFMAN (APPELLEE) FREDERIC C. FONDREN (APPELLANT) GEORGE O. LUCE (APPELLANT)

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