Davey Dimarco, Armond Dotey, James McCarroll and Marc Messina Versus Jackson Industrial Service Inc., Prime Insurance Company, and Buddy Jones

DAVEY DIMARCO, ARMOND DOTEY, NO. 21-CA-530
JAMES MCCARROLL AND MARC MESSINA
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
JACKSON INDUSTRIAL SERVICE INC.,
PRIME INSURANCE COMPANY, AND STATE OF LOUISIANA
BUDDY JONES

ON APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ST. JAMES, STATE OF LOUISIANA
NO. 37,209, DIVISION "E"
HONORABLE ALVIN TURNER, JR., JUDGE PRESIDING

June 15, 2022

MARC E. JOHNSON
JUDGE

Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and Hans J. Liljeberg

REVERSED IN PART;
AFFIRMED IN PART;
AFFIRMED AS AMENDED
MEJ
RAC
HJL

COUNSEL FOR PLAINTIFF/APPELLEE,
DAVEY DIMARCO, ARMOND DOTEY, JAMES MCCARROLL, JR., AND
MARC MESSINA
Vincent J. DeSalvo

COUNSEL FOR DEFENDANT/APPELLANT,
JACKSON INDUSTRIAL SERVICE, INC., PRIME INSURANCE COMPANY,
AND BUDDY JAMES
J. Geoffrey Ormsby

JOHNSON, J.

Defendants, Prime Insurance Company, Jackson Industrial Service, Inc., and

Buddy Jones, seek review of the Twenty-Third Judicial District Court for the

Parish of St. James’ May 24, 2021 judgment awarding Plaintiffs, Davey Dimarco,

Armond Dotey, James McCarroll, and Marc Messina, damages for pain and

suffering and past and future medical expenses. Plaintiffs also filed an answer to

the appeal, requesting that this Court increase various damages awards. For the

following reasons, we reverse in part, affirm in part, and affirm as amended the

trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

On January 28, 2015, Marc Messina was driving northbound on La.

Highway 3125 in a 2001 Honda Accord with passengers Davey Dimarco, Armond

Dotey, and James McCarroll, Jr., when that vehicle was struck on its rear

passenger side by a 2001 Kentwood tractor trailer exiting a private driveway. The

tractor trailer was operated by Buddy Jones, owned by Jackson Industrial Service,

Inc., and insured by Prime Insurance Company. The vehicle was “totaled” for

insurance purposes, but Plaintiffs were able to drive themselves to the emergency

room in Hammond after the accident.

Plaintiffs timely filed a Petition for Damages on September 15, 2015.

Plaintiffs averred that, as a result of the January 28, 2015 accident, they were

entitled to past and future damages for physical pain and suffering; mental anguish

and emotional distress; inconvenience and loss of enjoyment of life; and medical

and related expenses. Defendants argued that any damages Plaintiffs sustained

were caused by their own fault and/or negligence, and Plaintiffs failed to mitigate

their damages.

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The parties stipulated that Defendant Buddy Jones was solely at fault in

causing the motor vehicle accident. They also agreed that the only issues to be

determined by the trial court would be the nature and extent of the injuries

sustained by Plaintiffs, medical causation of those injuries, and general and special

damages awards to Plaintiffs. Also, each of Plaintiffs’ respective claims would not

exceed $50,000.00, exclusive of interest and costs. The parties also stipulated to

the authentication, admissibility, and introduction into evidence of the following

exhibits: Plaintiffs’ certified medical records, medical bills, and depositions from

their treating physicians; depositions of their treating physicians; a copy of the

Prime Insurance Company policy in effect at the time of the accident; any and all

property damage photographs; and the Plaintiffs’ employment records.

A one-day bench trial was held on April 7, 2021. The four Plaintiffs were

the only witnesses to testify.

After Plaintiffs rested, Defendants moved for a directed verdict and

judgment as a matter of law, alleging that none of Plaintiffs proved that the

medical treatment they received was related to the accident. Defendants argued

that there was no clinical evidence that correlated with Plaintiffs’ subjective

testimony, and that the evidence that was provided called the witnesses’ credibility

into question. Plaintiffs countered that the unopposed depositions of their doctors

established causation. The court denied the motion, took the matter under

advisement, and granted the parties the opportunity to submit post-trial

memoranda. On May 24, 2021, the trial court issued judgment in favor of

Plaintiffs and against Defendants.1 In its written reasons for judgment, the trial

court outlined Plaintiffs’ diagnoses and treatment plans. In awarding damages, the

trial court recognized that “a plaintiff is under a duty to mitigate his damages by

1
The judgment was amended by the trial court on March 8, 2022, to additionally cast judgment against
Jackson Industrial Service, Inc., which was not named as a co-defendant by the May 24, 2021 judgment.

21-CA-530 2

seeking medical treatment and . . . [the court] has taken that into consideration in

awarding damages.” Observing that the “injuries sustained by each plaintiff are

very serious,” the trial court found that Plaintiffs were entitled to damages in the

following amounts:

Armond Dotey: Past Medical Expenses: $12,736.00
Future Medical Expenses: $-0-
Past Pain and Suffering: $10,000.00

Future Pain and Suffering: $-0-

Total: $22,736.00

Marc Messina: Past Medical Expenses: $12,282.30
Future Medical Expenses: $-0-
Past Pain and Suffering: $36,000.00

Future Pain and Suffering: $-0-
Total: $48,282.30

Davey Dimarco: Past Medical Expenses: $17,045.20
Future Medical Expenses: $18,391.38
Past Pain and Suffering: $10,000.00

Future Pain and Suffering: $4,563.42
Total: $50,000.00

James McCarroll Jr.: Past Medical Expenses: $13,986.00
Future Medical Expenses: $3,103.00
Past Pain and Suffering: $24,000.00

Future Pain and Suffering: $8,911.00
Total: $50,000.00

The instant appeal followed.

21-CA-530 3

ASSIGNMENTS OF ERROR

On appeal, Defendants argue that the trial court erred in awarding damages

to Mr. Dimarco and Mr. McCarroll for future medical expenses and for future pain

and suffering as both of those Plaintiffs are refusing to undergo the medical

procedures recommended by their treating physicians for the relief of their

symptoms. Defendants also assign as error the trial court’s award of “excessive

general damages” for past pain and suffering to Mr. Dotey, Mr. McCarroll and Mr.

Messina because those Plaintiffs received minimal medical treatment and “testified

that their pain resolved within a few months and/or could be managed with over-

the-counter pain medicine.” Defendants also challenge the amount of past medical

expenses awarded to Mr. Dotey.

Plaintiffs timely filed an answer to appeal on August 3, 2021, pursuant to

La. C.C.P. art. 2133, and argued that the trial court abused its discretion and prayed

that certain general damages awards be increased.2 In their appellate brief,

Plaintiffs argue that the trial court abused its discretion, and seek an increase in the

amount of general damages awarded to Davey Dimarco for past and future pain

and suffering, and to James McCarroll for past and future pain and suffering and

mental anguish.

LAW AND DISCUSSION

“The fundamental principle of tort liability in Louisiana is that ‘[e]very act

whatever of man that causes damage to another obliges him by whose fault it

happened to repair it.’” La. C.C. art. 2315. In a negligence action under Article

2315, the plaintiff bears the burden of proving fault, causation and damages.

Beausejour v. Percy, 08-379 (La. App. 5 Cir. 10/14/08); 996 So.2d 625, 628. “It is

2
In their reply brief, Defendants argue that Mr. Dimarco and Mr. McCarroll cannot seek relief on appeal
because they did not file an answer to the appeal or file a cross-appeal. La. C.C.P. art. 2133 provides that
an appellee can file an answer to the appeal seeking modification of the judgment “not later than fifteen
days after the return day or the lodging of the record whichever is later.” The record in this matter was
lodged on July 28, 2021, and Plaintiffs filed a timely answer to the appeal on August 3, 2021.

21-CA-530 4

well settled in our jurisprudence that a defendant takes his victim as he finds him

and is responsible for all natural and probable consequences of his tortious

conduct.” American Motorist Ins. Co. v. American Rent–All, 579 So.2d 429, 433

(La. 1991). Where defendant’s negligent action aggravates a preexisting injury or

condition, he must compensate the victim for the full extent of his aggravation.

Touchard v. Slemco Elec. Found., 99-3577 (La. 10/17/00); 769 So.2d 1200, 1204.

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. McDonald v. AIG Nat. Ins. Co., Inc., 10-751 (La.

App. 5 Cir. 3/29/11); 63 So.3d 240, 241, citing Bouquet v. Wal–Mart Stores,

Inc., 08-309 (La. 4/4/08); 979 So.2d 456, 459. To determine whether the fact

finder has abused its discretion, the reviewing court looks first to the facts and

circumstances of the particular case. Bouquet v. Wal–Mart Stores, Inc., 979 So.2d

at 459.

“[C]ompensatory damages[. . .] encompasses those damages ‛designed to

place the plaintiff in the position in which he would have been if the tort had not

been committed.’” Wainwright v. Fontenot, 00-492 (La. 10/17/00); 774 So.2d 70,

74, citing Frank L. Maraist & Thomas C. Galligan, Jr., LOUISIANA TORT LAW

§ 7–1 (Michie 1996). Compensatory damages are divided into special damages

and general damages. Romano v. Jefferson Par. Sheriff’s Office, 13-803 (La. App.

5 Cir. 3/26/14); 138 So.3d 688, 693, writ denied, 14-700 (La. 5/16/14); 139 So.3d

1028. Special damages, such as past and future medical expenses, are those which

have a “ready market value,” such that the amount of damages can be calculated

with relative certainty. Antill v. State Farm Mut. Ins. Co., 20-131 (La. App. 5 Cir.

12/2/20); 308 So.3d 388, 407, citing Kaiser v. Hardin, 06-2092 (La. 4/11/07); 953

So.2d 802, 810. To recover medical expenses, whether past or future, a plaintiff

must show, through medical testimony, both the existence of the injury and a

21-CA-530 5

causal connection between the injuries and the incident of which plaintiff

complained. McDonald, 63 So.3d at 242. The plaintiff must show through

medical testimony that it is more probable than not the subsequent medical

treatment was necessitated by the trauma suffered in the accident. Romano, 138

So.3d at 694. The plaintiff bears the burden of proving special damages by a

preponderance of the evidence. Antill, supra. Before reversing a trial court’s

factual conclusions with regard to special damages, 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. Id., citing Kaiser, supra. The manifest error standard controls on the issue

of the assessment of special damages. McDonald, supra.

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. 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. Awards will not be made in the absence of
medical testimony that they are indicated and setting out their
probable cost. 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. [Citations omitted.]

Jackson v. Underwriters at Lloyd’s of London, 21-15 (La. App. 5 Cir. 9/29/21);

329 So.3d 1029, 1040-41, writ denied, 21-1591 (La. 1/12/22); 330 So.3d 617.

General damages are inherently speculative in nature and, unlike special

damages, cannot be fixed with any mathematical certainty. Romano, 138 So.3d at

693.

‘General damages’ involve mental or physical pain and suffering,
inconvenience, loss of gratification or intellectual or physical
enjoyment, or other losses of lifestyle that cannot be measured
definitively in terms of money. Pain and suffering, both physical and
mental, refers to the pain, discomfort, inconvenience, anguish, and
emotional trauma that accompanies an injury. The factors to be
considered in assessing quantum of, damages for pain and suffering
are severity and duration.

21-CA-530 6

Willis v. Noble Drilling (US), Inc., 11-598 (La. App. 5 Cir. 11/13/12); 105 So.3d

828, 845 (footnotes omitted). In reviewing the factfinder’s assessment

of general damages, the court does not decide what it considers to be an

appropriate award, but rather reviews the record to determine whether the trier of

fact abused its discretion. Simon v. Auto. Club Inter-Ins. Exch., 20-156 (La. App. 5

Cir. 10/13/21); 329 So.3d 1072, 1081. This vast discretion is such that an appellate

court should rarely disturb an award of general damages. Youn v. Maritime

Overseas Corp., 623 So.2d 1257, 1261 (La. 1993), cert. denied, 510 U.S. 1114,

114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). “Another reason for the vast discretion

the trial court has in awarding general damages, is that unlike special damages

which often require the production of an expert witness in order for a party to

prevail, general damages may be awarded without the need of such proof, and the

testimony of the party alone may suffice.” § 8.6. Special vs. general damages, 6

La. Civ. L. Treatise, Law Of Obligations § 8.6 (2d ed.). On appeal, the issue to be

resolved is not whether the trier of fact was right or wrong, but whether the

factfinder’s conclusion was a reasonable one. Boxie v. Smith-Ruffin, 07-264 (La.

App. 5 Cir. 2/6/08); 979 So.2d 539, 545.

Appellate courts review the evidence in the light which most favorably

supports the judgment to determine whether the trier of fact was clearly wrong in

its conclusions. Id. at 549. Reasonable evaluations of credibility and reasonable

inferences of fact should not be disturbed upon review where conflict exists in the

testimony. Id. at 545. An appellate court may not overturn an award for general

damages unless it is so out of proportion to the injury that it shocks the conscience.

Ursin v. Russell, 07-859 (La. App. 5 Cir. 2/6/08); 979 So.2d 554, 560. A

reviewing court may raise the award to the lowest reasonable amount or reduce it

to the highest reasonable amount, only if articulable reasons are found to show that

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a reasonable trier of fact could not have made the award under all of the

circumstances of the case. Williams v. Maritime, Inc., 04-625 (La. App. 5 Cir.

11/30/04); 889 So.2d 1055, 1059, writ denied, 04-3226 (La. 3/11/05); 896 So.2d

72.

Armond Dotey

Defendants allege that the general damages award of $10,000.00 for past

pain and suffering for Armond Dotey’s soft tissue injury that resolved after a

couple weeks with three therapy sessions is abusively high. Defendants also

contend that the amount of past medical expenses awarded ($12,736.00) should be

reduced because $2,157.00 of the expenses is for a TENS unit that Mr. Dotey

rarely used.3 Defendants further argue that this amount is excessive because the

physical therapy provider charged a rate of $10/day for the TENS unit and claim

that Mr. Dotey could have purchased the device for a fraction of this cost.

At trial, Mr. Dotey testified that he was asleep in the rear passenger seat just

before the accident occurred. He hit his head on the window and “popped” his

shoulder while attempting to brace himself. He saw Dr. Barrett Johnston, who was

offered and accepted as an expert in anesthesiology and pain management, the day

after the accident, for his neck, left shoulder and lower back pain. Dr. Johnston

ordered an MRI, concerned that there might be some underlying neurological

deficit resulting from the accident because of Mr. Dotey’s demonstrated restricted

range of motion. After reviewing the MRI, Dr. Johnston diagnosed Mr. Dotey

with tendonitis and bursitis of the left shoulder, and cervical and lumbar spine

muscle spasms caused by the accident, which are signs of soft tissue injuries. Dr.

Johnston opined that the pain Mr. Dotey reported that he was still experiencing at

3
In their appellate brief, Defendants argue that the charges from the physical therapy provider who
provided the TENS unit totaled $3,643.00, and should have been only $1.486.00 for the physical therapy
visits. Therefore, we calculate that the amount of the disputed charges relating to the TENS unit is
$2,157.00.

21-CA-530 8

his second visit was “more probably than not” a result of the accident. Mr. Dotey

was supposed to follow up with Dr. Johnston a few weeks later, but Dr. Johnston

never saw him again.

Following Mr. Dotey’s second visit in February 2015, Dr. Johnston

recommended physical therapy. According to the treatment records from

Hammond Physical Therapy Clinic, Mr. Dotey attended four physical therapy

sessions on February 25, 2021, March 26, 2015, April 13, 2014, and his last

session occurred on May 22, 2021.4

Mr. Dotey further testified that he experienced mobility issues and pain in

his left shoulder and pain in his lower back every day since the accident, but

agreed that since becoming a supervisor, no longer having to perform physical

work, treating his symptoms with a TENS unit twice a month through November

2016 and afterwards as needed, and taking over-the-counter pain medication every

day and night, he is able to “function and tolerate the pain.” On cross-examination,

defense counsel impeached Mr. Dotey with his prior deposition testimony

regarding his back pain. In that prior testimony, Mr. Dotey admitted that his back

pain resolved within a week of the accident. Defense counsel also questioned Mr.

Dotey as to why he did not seek medical treatment if he was experiencing a

significant level of pain and Mr. Dotey responded that he did not seek treatment

because he was always working. During this exchange the trial judge also

questioned Mr. Dotey about his failure to seek treatment and indicated that based

on the duration and level of pain claimed by Mr. Dotey, one would expect him to

seek treatment. Mr. Dotey then explained that working long hours every day,

4
Defendants argue on appeal that Mr. Dotey only attended three physical therapy sessions. The printout
of the statement of charges from the physical therapy provider only includes charges for three visits in
February, March and May 2021. However, the notes explaining the treatment provided indicate that Mr.
Dotey also attended physical therapy on April 13, 2015.

21-CA-530 9

along with being uninsured and unable to miss work, prevented him from seeking

further medical treatment.

First, we do not find that the trial court was clearly wrong in awarding Mr.

Dotey the expenses charged for the TENS unit. Defendants did not introduce any

evidence regarding the actual cost of the device to establish that the charges were

excessive. Furthermore, Mr. Dotey testified that he used the TENS unit twice a

month from the time he received it through November 2016, shortly before the

daily charges ceased. Mr. Dotey further explained that he continued to use the

TENS unit at the time of the trial and kept it by his bedside. Accordingly, we find

that a reasonable factual basis exists for the trial court’s award of medical expenses

for the TENS unit.

We also find that the trial court did not abuse its discretion in its $10,000.00

award for past pain and suffering to Mr. Dotey. The trial court reasonably found

that Mr. Dotey sustained soft-tissue injuries to his neck, left shoulder and back.

Mr. Dotey received treatment for four months following the accident through May

22, 2015. We do not find that an award of $10,000.00 for multiple soft tissue

injuries with treatment for a four-month period is an abuse of the trial court’s vast

discretion.5 Therefore, we will not disturb the trial court’s special and general

damages awards to Mr. Dotey.

Marc Messina

With respect to Mr. Messina, Defendants argue that the trial court abused its

discretion by awarding Mr. Messina $36,000.00 ‒ the largest award of general

damages of the four Plaintiffs. Defendants contend that the award is an abuse of

5
See Joseph v. Houston, 04-350 (La. App. 5 Cir. 10/12/04); 886 So.2d 1133, 113 (finding that the trial
court did not abuse its discretion in its damage assessment, awarding reimbursement for medical expenses
for five months and $2,500 per month for pain and suffering for the same five-month period; plaintiff
suffered from cervical and lumbar sprain, leg pain).

21-CA-530 10

discretion because Mr. Messina only treated for three months and failed to mitigate

his damages.

Mr. Messina, the driver of the vehicle struck by the tractor trailer, sustained

injuries to his low back and left knee as a result. Mr. Messina’s treating physician,

Dr. Barrett Johnston, testified via deposition that Mr. Messina had a prior surgery

on his left knee, but the symptoms had resolved before the January 28, 2015

accident. Dr. Johnston prescribed medication and physical therapy to treat the

more recent symptoms. Mr. Messina saw Dr. Johnston three times in the months

following the accident. Mr. Messina initially complained of lower back pain and

left anterior leg pain from groin to knee and was diagnosed with thoracic back

strain, sprain of the left thigh, and contusion to his left lower leg immediately

following the accident. At his initial visit on January 29, 2015, according to Dr.

Johnston’s records, Mr. Messina’s left knee pain was aggravated by “movement,

walking and standing [and there were] no relieving factors.” During his March 3,

2015 visit, Mr. Messina reported that the pain was “aching,” “aggravated by lifting

and movement,” and relieved by heat and rest. On April 14, 2015, Dr. Johnston

noted that Mr. Messina’s knee pain “occurs constantly and is worsening. . . . The

pain is aching, throbbing and stabbing. The pain is aggravated by bending, lifting,

movement, walking and standing. There are no relieving factors. Associated

symptoms include decreased mobility, popping, swelling, stiffness and tightness.”

Dr. Barrett administered a steroid injection at that visit to relieve Mr. Messina’s

symptoms. Mr. Messina also continued to attend monthly physical therapy

sessions until April 22, 2015.

Dr. Johnston testified that he recommended that Mr. Messina see the doctor

who performed his knee arthroscopy in 2013. Even without an MRI, Dr. Johnston

determined that the inflammation in Mr. Messina’s knee was likely an

exacerbation of the meniscal tear for which he had previously received treatment.

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The trial court also noted in its reasons for judgment that the doctor also diagnosed

Mr. Messina with acute lower back pain – the doctor documented that his back

pain “had gotten better” by the April 2015 visit. Mr. Messina testified that periods

of unemployment and other family responsibilities prevented him from continuing

treatment.

Mr. Messina also testified the pain in his knee was severe for the first three

or four months after the accident and eased some after the treatment he received

from Dr. Johnston, as well as the physical therapy. He testified that he still had

pain at the time of trial, but that for the most part, the pain was bearable and he

learned to identify his limits. He testified that he did the exercises provided by Dr.

Johnston and the physical therapist to try to strengthen his knee on his own. He

further testified that he takes ibuprofen for pain as needed. During Mr. Messina’s

direct examination, the trial court asked Mr. Messina how often he experiences

pain and Mr. Messina explained that the pain depends on the level of his activity.

Upon review of the record, we find that the trial court did not abuse its

discretion in its $36,000.00 award to Mr. Messina for past pain and suffering. In

the instant case, based on Mr. Messina’s and Dr. Johnston’s testimony, it was

reasonable for the trial court to find that Mr. Messina continued to experience pain,

as a result of the injuries sustained, for several months after the accident. We

recognize that similar to Mr. Dotey, Mr. Messina only received medical treatment

for three months. However, as explained above, the trial court questioned the

credibility of Mr. Dotey’s continued pain through the date of trial. Furthermore,

unlike Mr. Dotey, who only experienced soft tissue injuries, the trial court

concluded that Mr. Messina experienced an exacerbation of the prior meniscal tear.

The amount awarded by the trial court is consistent with awards for similar knee

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injuries sustained.6 Therefore, we will not disturb the trial court’s award to Mr.

Messina for past pain and suffering.

Davey Dimarco

Defendants argue on appeal that the trial court erred in awarding Mr.

Dimarco future medical expenses and the associated future pain and suffering for a

shoulder surgery Mr. Dimarco did not intend to undergo. In answer to the appeal,

Mr. Dimarco argues that the trial court abused its discretion by only awarding him

a total of $14,564.42 for general damages when he incurred $17,517.20 in past

medical expenses.

At trial, Davey Dimarco testified that he is a construction worker, and he

was riding in the front passenger seat when the tractor trailer hit the passenger rear

quarter panel of the vehicle. The impact of the accident caused Mr. Dimarco’s

right shoulder, hip, leg and ankle to slam against the car door and kick panel. The

day after the accident, Dr. Allen Johnston, an expert in orthopedic surgery per the

parties’ stipulation, prescribed medications, including a muscle relaxer and pain

medication, gave Mr. Dimarco an immobilizer for his ankle, recommended

physical therapy, and placed him on light duty at work. Mr. Dimarco received a

steroid injection in his right shoulder on February 4, 2015, and the doctor

maintained the order for restrictive duty at work. Mr. Dimarco started receiving

physical therapy on February 10, 2015.

6
See Cox v. Cadaro, 484 So.2d 177, 181 (La. App. 5th Cir. 2/13/1986) (finding a jury had not abused its
discretion in awarding an active twenty-year old man, a volunteer firefighter training to become a plant
process operator, $87,500 for pain and suffering after suffering injury of his right knee and re-injury of
his left knee in an automobile accident after receiving conservative care from August 30, 1984 (six days
after the accident) to October 11, 1984. Plaintiff’s medical expenses for that period, for examination and
treatment, amounted to $302.); Poulan v. Hunter, 36,225 (La. App. 2 Cir. 11/6/02); 830 So.2d 1125, 1130
(finding the trial court’s award of $32,000 in general damages was not beyond the amount reasonably
within the factfinder’s broad discretion. The plaintiff sustained a twisting injury to his left knee after
being hit by an automobile, an MRI revealed swelling of the knee and possible tearing of the knee’s
medial meniscus and ACL, and the treating physician recommended conservative treatment and stated
that arthroscopic surgery should be considered if the plaintiff’s symptoms continued).

21-CA-530 13

By March 2015, Mr. Dimarco’s neck and ankle were improving, but his

right shoulder and low back was still symptomatic. Dr. Johnston recommended

MRIs of Mr. Dimarco’s lower back and right shoulder, and that he “continue at

light duty” at work. MRIs taken later that month showed straightening of the

lumbar curve consistent with muscle spasms and impingement of the rotator cuff,

which often occurs as a result of a blow to the shoulder, according to Dr. Johnston.

At the April 2015 visit, Dr. Johnston reviewed the MRI results and

recommended Mr. Dimarco continue with therapy for his lower back and

medication as prescribed. Also, “depending on his symptoms,” the doctor

recommended “decompressing his rotator cuff or removing the underneath surface

of that bony ledge that was dinging or banging against the rotator cuff.” At his

May 2015 visit, Mr. Dimarco informed Dr. Johnston that his condition had not

significantly changed, but his ankle may have been “a little bit worse.” Dr.

Johnston recommended taking an MRI of the ankle and advised Mr. Dimarco that

he was still a candidate for surgery on his shoulder, depending on his symptoms.

Via deposition testimony, Dr. Johnston advised “[the impingement is] not an

emergent condition, it’s not an absolute you have to have surgery for, it’s an

elective surgery.”

The MRI of Mr. Dimarco’s ankle taken in June 2015 showed that he had

tenosynovitis, an inflammation of the tendons surrounding the outside of the ankle.

Dr. Johnston injected Mr. Dimarco’s ankle with cortisone to relieve the

inflammation and promote healing. By his July 2015 visit, Mr. Dimarco’s

symptoms had mostly resolved with the exception of the pain in his right shoulder.

Dr. Johnston explained in his deposition that Mr. Dimarco had tried to return to

full duty as a scaffold builder, but he reported that he still had pain with abduction

(“moving his arm away from the side of his body”) and his pain increased when

performing activities that required him to raise his arm above his head. Mr.

21-CA-530 14

Dimarco received an injection of Celestone and Marcaine to treat the still-present

impingement. By August 2015, Mr. Dimarco’s shoulder had improved after the

injection, but prolonged overhead activity while working full-time as a scaffold

builder “worsened his discomfort.” Dr. Johnston advised that he was still a

candidate for arthroscopy if his symptoms continued.

At the April 2021 trial, Mr. Dimarco testified that he continued to have

shoulder pain over the past five years. Dr. Johnston re-evaluated Mr. Dimarco’s

condition on January 11, 2021 at his counsel’s behest. Dr. Johnston again injected

Mr. Dimarco’s right shoulder, and again advised him that he was a candidate for

shoulder decompressions, if his symptoms persisted, and to return in six months.

Mr. Dimarco stated that he did not intend to undergo the surgical procedure and

informed Dr. Johnston of the same, both in 2015 and 2021. The medical records

introduced into evidence indicated that the estimated cost of the surgical procedure

to repair Mr. Dimcarco’s shoulder was $18,391.38.

The trial court found that Mr. Dimarco sustained injuries to his neck, low

back, ankle, and right shoulder as a result of the accident and awarded him

$17,045.20 for past medical expenses; $18,391.38 for future medical expenses;

$10,000.00 for past pain and suffering; and $4,563.42 for future pain and suffering.

Defendants urge that the trial court erred in awarding Mr. Dimarco future

medical expenses of $18,391.38 – the estimated cost of the surgical procedure to

repair his shoulder according to medical records introduced into evidence. Before

reversing a trial court’s factual conclusions with regard to special damages, 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. Antill, supra. Upon review of the record, we agree

that the trial court erred when it awarded Mr. Dimarco the cost of the surgical

procedure he has refused to undergo although it would likely alleviate his

21-CA-530 15

symptoms. See Boxie v. Smith-Ruffin, 979 So.2d at 549 (reversing as error the

trial court’s award of future medical expenses for recommended surgical

procedures for back injuries that the plaintiffs refused to undergo, chose to treat

their symptoms with medication and doctor’s visits, and provided no proof that

they would seek surgical treatment in the future). 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. Antill, supra. Mr. Dimarco did not present evidence to

establish any other medical expenses that he would incur in the future that would

justify such an award. Therefore, we reverse the trial court’s judgment awarding

Mr. Dimarco future medical expenses in the amount of $18,391.38.

Defendants also argue that the trial court abused its discretion in awarding

Mr. Dimarco $4,563.42 for future pain and suffering. Mr. Dimarco conversely

seeks an increase in the total amount awarded to him for past and future general

damages from $14,563.42 to $30,000.00. Before a trial court’s general

damages award may be set aside as inadequate or excessive by an appellate court,

the reviewing court must look first, not to prior awards, but to individual

circumstances of the instant matter before it. Abadie v. Metro. Life Ins. Co., 00-

344 (La. App. 5 Cir. 03/28/01); 784 So.2d 46, 105-106. Only after an analysis of

the facts and circumstances peculiar to the instant case can a reviewing court

determine the award is either excessive or inadequate. Id. The reviewing court

may not merely look at past awards for similar injuries in the determination of

whether the trier of fact abused its much discretion. Harris v. State, Dep’t of

Transp. & Dev., 16-524 (La. App. 5 Cir. 6/15/17); 223 So.3d 695, 708, citing Reck

v. Stevens, 373 So.2d 498, 501 (La. 1979). Rather, 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

21-CA-530 16

point which is reasonably within that discretion. Id., citing Coco v. Winston Indus.,

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

Mr. Dimarco incurred $17,045.20 in past medical expenses. He saw Dr.

Johnston for seven months after the accident, and received treatment at nine

physical therapy sessions for four months following the accident to address

symptoms in his neck, right shoulder, and lower back. He also suffered with

inflammation of the tendons around his ankle for six months. As of the trial date,

Mr. Dimarco received one injection in his ankle and three injections in his

shoulder. Dr. Johnston testified that Mr. Dimarco has continued to have right

shoulder pain and was still a candidate for shoulder surgery in January 2021. The

doctor further testified that Mr. Dimarco explained to him that he had not followed

up with treatment since 2015 because he was unsure if the insurance he had

obtained from more recent employers would cover his pre-existing condition.

Instead, he managed his pain and discomfort with over-the-counter medication and

with exercises and shoulder stretches his primary care physician recommended.

Upon review of the record, we first agree that the trial court abused its

discretion in awarding Mr. Dimarco $4,563.42 in general damages for future pain

and suffering associated with the surgery that he refused to undergo to alleviate the

symptoms he was experiencing in his shoulder. Therefore, we reverse this award.

However, at the same time, we find that considering the particular facts and

circumstances at issue, the trial court abused its discretion by only awarding Mr.

Dimarco $10,000.00 in general damages for his past pain and suffering and further

find that this award is abusively low.7 Mr. Dimarco received various treatments

for injuries to four different parts of his body from the time of the subject accident

through August 2015. For that reason, we surveyed cases including similar

7
We further recognize the possibility that the trial court reduced the award for past pain and suffering
without providing an explanation in the reasons for judgment as the entire award for general and special
damages adds up to $50,000.00, the maximum stipulated amount agreed to between the parties.

21-CA-530 17

damages to determine the lowest reasonable award in this case, considering the

particular circumstances of this case. See Joseph v. Netherlands Ins. Co., 15-549

(La. App. 5 Cir. 2/24/16); 187 So.3d 517, 520. In Sanchez v. Dubuc, 12-526 (La.

App. 5 Cir. 2/21/13); 110 So.3d 1140, 1146, Mr. Sanchez received only four and

one-half months of treatment, and was still in pain at trial which took place 27

months after the subject accident. This court found that a general damage award of

up to $67,500.00 for a 27-month soft tissue injury ($2,500.00 per month --

quantum which the Court noted is supported in the jurisprudence) could be within

the trial court’s discretion.

In Williams v. Roberts, 05-852 (La. App. 5 Cir. 4/11/06); 930 So.2d 121,

124, the plaintiff experienced injuries to her cervical, thoracic, and lumbar spine as

a result of an accident in which her vehicle was rear-ended. This court amended

the general damages award to $7,500.00, which we found to be “commensurate

with a soft-tissue injury that resolves over a three-month duration.”

In All v. Safeco Ins. Co., 17-632 (La. App. 1 Cir. 11/1/17); 235 So.3d 1134,

1138-39, the First Circuit found that the trial court did not abuse its discretion in

awarding an injured motorist $66,000.00 in general damages -- $3,000.00 a month

for pain and suffering caused by a cervical soft tissue injury -- reduced to

$50,000.00, as it was proven that the plaintiff’s pain and suffering continued for 22

months, from the accident until trial. The First Circuit concluded “[r]egardless of

the lapse in her treatment, [plaintiff’s] testimony at trial, corroborated by [doctor’s]

deposition, revealed that she continued to have neck pain during those five months

and continued to have that same pain the day of trial.”

Accordingly, because Mr. Dimarco introduced evidence at trial that proved

he received seven months of treatment for various soft tissue injuries, as well as

several steroid injections in his ankle and shoulder due to a shoulder impingement,

we find that the lowest appropriate award for Mr. Dimarco’s past pain and

21-CA-530 18

suffering is $21,000.00. Accordingly, we amend the trial court’s award for past

pain and suffering from $10,000.00 to $21,000.00.

James McCarroll, Jr.

Defendants argue the trial court erred when it awarded Mr. McCarroll

$3,103.00 for future medical expenses and $8,911.00 for future pain and suffering

because Mr. McCarroll has refused additional medical treatment. Defendants also

argue that the trial court abused its discretion when it awarded Mr. McCarroll

$24,000.00 for past pain and suffering for a soft tissue injury that resolved in five

months. In Plaintiffs’ answer, Mr. McCarroll also alleges that the trial court

abused its discretion, and requests an increase in the total award for general

damages to $50,000.00.

Dr. Allen Johnston treated Mr. McCarroll after the subject accident, and also

after a previous car accident that occurred on December 18, 2014. After the

subject accident, Mr. McCarroll again experienced pain in his lower back and

neck, and also in his left leg. On cross-examination, Mr. McCarroll admitted that,

in his deposition, he previously stated the subject accident “boosted” the pain

caused by the first accident, but he “also had much more pain from the second

wreck.” After the subject accident, Mr. McCarroll again experienced pain in his

lower back and neck, and also in his left leg. During the January 29, 2015 visit,

Dr. Johnston prescribed medication to treat pain and inflammation, muscle

relaxers, placed Mr. McCarroll on light duty work restriction, and recommended

an injection and physical therapy. In February 2015, Dr. Johnston also ordered

MRIs; neck and back MRIs showed bulging of the C6-7 disc and bulging to the left

at the T4-5 in the mid back, a left-sided L5-S1 disc herniation, and bulging of the

L4-L5 disc. Mr. McCarroll received an injection in his back in March 2015 and

reported that his symptoms had improved thereafter. Mr. McCarroll returned to

work without restrictions in April 2015, and told the doctor he could manage his

21-CA-530 19

pain with over-the-counter anti-inflammatory medication by the end of May 2015,

so he was discharged, to return for treatment as needed. He saw Dr. Johnston

again in August 2015 and, although Mr. McCarroll reported that his pain was

reoccurring, he elected not to receive a second steroid injection to treat his lower

back pain.

By early September 2015, Mr. McCarroll described his back pain as “a 6 out

of 10,” but he was able to manage that level of discomfort. Mr. McCarroll testified

that that he refused a second injection because the relief provided did not last as

long as he expected. Dr. Johnston agreed that he would not have recommended

more injections if Mr. McCarroll’s pain was manageable. Mr. McCarroll was

instructed to continue to take the medication prescribed, stretch and exercise daily

at home, and return for evaluation in four weeks. He never saw Dr. Johnston again.

Dr. Johnston explained that the injury to Mr. McCarroll’s disc was permanent, that

his condition could lead to more back pain over time, and agreed that whether or

not a doctor orders another MRI and/or recommends additional treatment is

determined by the degree of pain complained of.

The trial court found that Mr. McCarroll sustained injuries to his neck and

lower back and noted that Dr. Allen Johnston opined in his deposition testimony

that the disc herniation “most likely occurred during the January 28, 2015

automobile accident.” With respect to the general damages award for past and

future pain and suffering, $32,911.00, we find that the trial court did abuse its

discretion in awarding this amount of general damages to Mr. McCarroll.8 We

have previously found that the lowest reasonable general damages award for a non-

surgical permanent disc herniation within the trier of fact’s discretion is

$50,000.00. Sanchez v. Dubuc, 110 So.3d at 1146, citing Webb v. Horton, 01-978

8
Again, we recognize the possibility that the trial court reduced the awards for past and future pain and
suffering without providing an explanation in the reasons for judgment to comply with the $50,000.00
stipulation.

21-CA-530 20

(La. App. 5 Cir. 2/13/02); 812 So.2d 91, 99; Rehm v. Morgan, 04-344 (La. App. 5

Cir. 10/26/04); 885 So.2d 687, 692-93. But, because each Plaintiff stipulated that

his total damages did not exceed $50.000.00, we can only increase Mr.

McCarroll’s total general damages award for past and future pain and suffering to

$36,014.00.

Further, we find that the trial court erred when it awarded Mr. McCarroll

future medical expenses of $3,103.00. Mr. McCarroll testified that his back pain

was manageable, and he gave no indication that he would treat his back pain with a

steroid injection in the future. Similar to Mr. Dimarco (see our discussion, supra),

Mr. McCarroll did not establish with some degree of certainty that he would more

likely than not incur the cost of an additional steroid injection in the future,

therefore we will reverse Mr. McCarroll’s award to exclude future medical

expenses. Antill, supra.

DECREE

Considering the foregoing, with respect to Armond Dotey and Marc

Messina, we affirm the trial court’s awards of past pain and suffering and past

medical expenses. We reverse the award of future medical expenses and future

pain and suffering to Davey Dimarco, and amend the award of damages for past

pain and suffering from $10,000.00 to $21,000.00. Finally, we reverse the award

for future medical expenses to James McCarroll, Jr. and amend the general

damages awards for past and future pain and suffering to increase them from a

total of $32,911.00 to $36,014.00.

Therefore, the awards to Plaintiffs are reversed, amended, and affirmed as

follows:

Armond Dotey:
Past Medical Expenses: $12,736.00
Future Medical Expenses: $-0-

21-CA-530 21

Past Pain and Suffering: $10,000.00

Future Pain and Suffering: $-0-

Total: $22,736.00

Marc Messina: Past Medical Expenses: $12,282.30
Future Medical Expenses: $-0-
Past Pain and Suffering: $36,000.00

Future Pain and Suffering: $-0-
Total: $48,282.30

Davey Dimarco: Past Medical Expenses: $17,045.20
Future Medical Expenses: $-0-
Past Pain and Suffering: $21,0000.00
OR
Future Pain and Suffering: $ -0-
Total: $38,045.20

James McCarroll Jr.: Past Medical Expenses: $13,986.00
Future Medical Expenses: $-0-
Past and Future Pain and $36,014.00
Suffering:
Total $50,000.00

REVERSED IN PART;
AFFIRMED IN PART;
AFFIRMED AS AMENDED

21-CA-530 22

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
FREDERICKA H. WICKER
INTERIM 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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JUNE 15, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
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21-CA-530
E-NOTIFIED
23RD JUDICIAL DISTRICT COURT (CLERK)
HONORABLE ALVIN TURNER, JR. (DISTRICT JUDGE)
VINCENT J. DESALVO (APPELLEE) J. GEOFFREY ORMSBY (APPELLANT) RANDALL A. SMITH (APPELLANT)
STEPHEN M. GELE (APPELLANT)

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