Stacey Weir, Mitchell Odom, Jr., and Rita Odom v. Kilpatrick's Rose-Neath Funeral Homes, Crematorium and Cemetaries, Inc.

Judgment rendered September 22, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,030-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STACEY WEIR, MITCHELL Plaintiffs-Appellants
ODOM, JR., AND RITA ODOM

versus

KILPATRICK’S ROSE-NEATH Defendant-Appellee
FUNERAL HOMES,
CREMATORIUM AND
CEMETARIES, INC.

*****

Appealed from the
Forty-Second Judicial District Court for the
Parish of DeSoto, Louisiana
Trial Court No. 77,369

Honorable Amy Burford McCartney, Judge

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T. TAYLOR TOWNSEND, LLC Counsel for Appellants
By: Thomas Taylor Townsend

KAMMER & HUCKABAY, LTD
By: Charles H. Kammer, III

COOK, YANCEY, KING & GALLOWAY Counsel for Appellee
By: Elizabeth Mendell Carmody
Jordan B. Bird

MORRIS & DEWETT, LLC
By: Josh Powell
*****

Before COX, STEPHENS, and THOMPSON, JJ.

THOMPSON, J.

The surviving spouse and adult daughter of the decedent appeal the

damages awarded by a jury against the defendant funeral home hired by

them to oversee the embalming, visitation, funeral arrangements, and burial

of their husband and father.1 The jury found negligence on the part of the

funeral home and awarded general damages to both plaintiffs, as well as

damages for future medical expenses. The plaintiffs appeal the failure of the

jury to award past medical expenses and appeal as abusively low the amount

of the awards of future medical expenses and general damages. For the

following reasons, we affirm the jury’s verdict in part and reverse in part.

FACTS

The plaintiffs, Stacey Weir (“Stacey”) and Rita Odom (“Mrs.

Odom”), are the daughter and wife, respectively, of Mitchell Grant Odom,

Sr. (“Mr. Odom”), who suddenly and unexpectedly died of a heart attack on

May 2, 2015. Mr. and Mrs. Odom had been married for over 40 years, and

Stacey is their daughter. Only because the nature and extent of the

relationship between a plaintiff and a decedent may be relevant in quantum

decisions by a trier of fact, we note that the record reflects that the Odoms

had previously separated for a period of time during their marriage but later

reconciled. They were also living separate and apart for a number of weeks

at the time of Mr. Odom’s death, with Mr. Odom residing in the apartment

located over his brother’s garage. Mrs. Odom described those living

arrangements as temporary, and the record reflects no divorce proceedings

were instituted by either party.

1
We note that the defendant’s name, Kilpatrick’s Rose-Neath Funeral Homes, Crematorium and
Cemeteries, was misspelled in the caption of the pleadings by plaintiffs.

After Mr. Odom’s death, Mrs. Odom retained and signed a contract with the

defendant, Kilpatrick’s Rose-Neath Funeral Homes, Crematorium and

Cemeteries, Inc. (“Rose-Neath”), to oversee preparation of Mr. Odom’s

body, as well as his visitation, funeral, and burial. Mrs. Odom and Stacey

expressed their desire to have an open casket at the funeral and were never

informed by Rose-Neath when planning the funeral that it would be more

appropriate to have a closed casket. They were never advised to alter those

original plans when challenges arose from the condition of Mr. Odom’s

body during the visitation and funeral service. Plaintiffs allege that Rose-

Neath should have intervened and taken corrective action when the

circumstances surrounding the visitation and funeral deteriorated.

It is undisputed that Mr. Odom’s body was prepared for his visitation

and funeral by Rose-Neath. Embalming is designed to slow the natural and

unavoidable process of decomposition of the body and its unpleasant side

effects. There was evidence adduced from Rose-Neath’s employee that the

embalming process of Mr. Odom was difficult, and he testified that at the

time of embalming, he noticed signs of decomposition, including

discoloration and an unusual odor.

The visitation and funeral services got off to an unfortunate start when

Mr. Odom’s body was not timely delivered to Rose-Neath’s Logansport

funeral home as scheduled on May 4, 2015. While there is some dispute as

to exactly what time the visitation was set to occur, it is undisputed that Mr.

Odom’s body was delivered at least thirty minutes late to the visitation,

arriving after family and friends had gathered to show their respects.

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Louisiana in May can be unpleasantly warm. Testimony established it

was also uncomfortably hot inside the funeral home when the plaintiffs

arrived that evening for Mr. Odom’s visitation. When Mrs. Odom and

Stacey arrived, it was apparent that the air conditioning inside the building

was not and had not been properly functioning that day. Heat can accelerate

the decomposition process. After Mr. Odom’s body was delivered to the

visitation, people who attended noticed an odor coming from the deceased.

Plaintiffs testified they were not particularly aware of the odor during

visitation. Mr. Odom’s body was kept by the funeral home overnight in the

unairconditioned chapel.

By the time of the funeral the following day, testimony established

that Mr. Odom’s body had begun to swell with gases, was leaking fluids,

and was emitting a noxious odor. Stacey testified she got up several times to

wipe fluids emitting from her father’s mouth before the funeral services

began. There is also testimony from several people who attended the funeral

about the leaking fluid and a terrible odor of decay. Some of the funeral

attendees had to leave the chapel during the funeral, reportedly due to the

heat and the smell inside the building. After the funeral service, the

deceased was moved to the cemetery and properly interred.

Plaintiffs allege that despite Rose-Neath being alerted by the

embalmer of the condition of Mr. Odom’s body and the fact that it was not

taking the embalming process well, Rose-Neath never suggested that the

visitation and funeral should be a closed casket service. Stacey testified that

if someone had told her or her mother that they needed to have a closed

casket due to the state of the body, they would have agreed to do so.

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Plaintiffs also assert Rose-Neath never undertook any remedial efforts to

resolve the lack of air conditioning at the location nor did it offer to relocate

the visitation and funeral services to any of its other neighboring locations,

which would have had appropriate climate control for keeping Mr. Odom’s

body overnight, as well as provided more comfortable conditions for the

attendees at the services.

Following Mr. Odom’s burial, Stacey and Mrs. Odom sought

treatment beginning May 25, 2016, with a licensed social worker, Carole

Pruett (“Pruett”), for the emotional challenges they allege were brought on

by the condition of Mr. Odom’s body and events surrounding his visitation

and funeral services. Pruett diagnosed both women with post-traumatic

stress disorder (“PTSD”) related to their experiences at the visitation and

funeral. Pruett testified that she treats PTSD with eye movement

desensitization reprocessing (“EMDR”). She saw Mrs. Odom 31 times

between May 25, 2016 and March 15, 2018, and EMDR was initiated four

times. Pruett testified that Mrs. Odom shut down with the last two EMDR

sessions and they were not completed.

Pruett saw Stacey approximately 30 times between May 25, 2016 and

April 18, 2018, and EMDR was initiated two times. Pruett testified that

Stacey stopped the processing early in both sessions. Pruett testified that

both Mrs. Odom and Stacey would avoid their feelings related to the

visitation and funeral and had consistent resistance to EMDR.

On November 6, 2018, Mrs. Odom started treatment with Shelley

Visconte, a psychologist, who also diagnosed her with PTSD. Mrs. Odom

saw Dr. Visconte five times between November 6, 2018 and August 23,

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2019. Dr. Visconte testified that people who experience post-traumatic

stress engage in avoidance, meaning they have a fear of things that trigger

memories or thoughts of the traumatic event. Dr. Visconte described Mrs.

Odom as having nightmares and flashbacks of the funeral. Mrs. Odom also

had physiological responses, including increased heart rate, shortness of

breath, and anxiety. Mrs. Odom missed some of her appointments with Dr.

Visconte, but the doctor later testified that she attributed the missed

appointments as avoidance and noted that avoidance is very typical of those

people who have PTSD. Dr. Visconte believed Mrs. Odom could benefit

from continued future treatment and, under questioning, estimated the costs

for the recommended treatment to be between $6,000 and $10,000.

Stacey began seeing Dr. Jennifer Russell, a psychologist, on February

7, 2019, and Dr. Russell treated Stacey five times between February 7, 2019

and June 25, 2019. Dr. Russell diagnosed Stacey with PTSD and also noted

the avoidance symptoms of PTSD, including missing or cancelling several

of her appointments.

Plaintiffs submitted to an independent medical examination on July

27, 2017, with Rose-Neath’s medical expert, Dr. Daniel Feeney, who is a

board-certified psychiatrist. Dr. Feeney diagnosed both plaintiffs with

PTSD specifically related to the handling of Mr. Odom’s body and funeral.

Dr. Feeney gave each plaintiff a 10% to 30% disability rating due to their

traumatic experience.

On February 18, 2020, the parties began a three-day trial which

included a number of witnesses including: Richard Tull, Rose-Neath’s

embalmer, Dr. Shelley Visconte, Mrs. Odom’s treating psychologist, Erma

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Spears, Rose-Neath’s Logansport receptionist who noticed the air

conditioning not working, Bill Spears, who managed Rose-Neath’s

Logansport location on the day of the visitation, Dr. Daniel Feeney, the

independent medical examiner, Dr. Jennifer Russell, Stacey’s treating

psychologist, Mrs. Odom, Stacey, and several friends and family of the

Odoms who all attended the visitation and funeral, including Mrs. Odom’s

sister, Tammy Weaver, Mrs. Odom’s brother, Danny Weaver, Mrs. Odom’s

best friend, Kathy Reeves, and Stacey’s best friend, Staci Dechamplain.

After the third day of trial, the case was turned over to the jury, and

after two hours of deliberation, the jury returned its verdict in favor of the

plaintiffs. The jury found that plaintiffs had proven by a preponderance of

the evidence that Rose-Neath was negligent with regard to the visitation

and/or funeral of Mr. Odom and awarded $5,000 in general damages each to

Stacey and Mrs. Odom, which amount included past and future pain,

suffering, and mental anguish. The jury also awarded $5,000 each to Stacey

and Mrs. Odom for future medical expenses, but there was no award given

to either woman for past medical expenses incurred from the date of the

funeral through trial. Plaintiffs now appeal, arguing that they should have

been awarded past medical expenses, that Mrs. Odom’s future medical

award was abusively low, and that both plaintiffs received an abusively low

general damages award.

DISCUSSION

First Assignment of Error: The jury erred in failing to award past
medical expenses, and the award was internally inconsistent since the
jury awarded future medical expenses.

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In their first assignment of error, plaintiffs argue that the jury erred in

failing to award past medical expenses, a result that is internally inconsistent

because the jury awarded future medical expenses. Rose-Neath urges that

the jury’s decision is not internally inconsistent because there were

permissibly conflicting views of the evidence that could allow the jury to

reject an award of past medical expenses.

Special damages are those damages that can be determined with some

degree of certainty and include past and future medical expenses.

Richardson v. Christus Shumpert Health Sys., 47,776 (La. App. 2 Cir.

2/27/13), 110 So. 3d 264, writ denied, 13-0621 (La. 4/19/13), 112 So. 3d

228. Medical expenses are a component of special damages. The plaintiff

bears the burden of proving special damages by a preponderance of the

evidence. Id. An award of special damages is reviewed pursuant to the

manifest error standard of review.

In Cormier v. Colston, 05-0507 (La. App. 3 Cir. 12/30/05), 918 So. 2d

541, a tenant brought an action against her landlord to recover damages

when she fell down the steps of her rented home and injured her knee. The

jury was presented with expert medical testimony from only one witness,

who testified that the tenant’s injuries were caused by the fall from her steps,

even though she had previous knee problems. He testified regarding her past

medical bills for his services and provided an estimate of future medical

costs to repair the knee. The jury returned a verdict awarding the tenant

future medical costs but no past medical costs. Id.

The jury specifically found that the defendant was negligent and that

negligence contributed to the accident, which caused the plaintiff’s injuries.

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The Cormier court stated that “[d]espite these specific findings, the jury then

ignored the uncontradicted past medical expenses associated with treatment

for the same injury for which it awarded future medical expenses.” Id. The

court found that the jury’s verdict appeared internally inconsistent and stated

that it must then determine if there was a reasonable basis discernible in the

record for the apparent inconsistences in the jury’s verdict.

We find in the present matter that the jury’s grant of an award for

future medicals to Stacey and Mrs. Odom but the denial of an award for past

medical expenses is internally inconsistent. The genesis of the emotional

harm to Stacey and Mrs. Odom is their experience at the events surrounding

the visitation and funeral of Mr. Odom. We must determine whether there is

a reasonable basis for this apparent inconsistency in the record, i.e.

recognizing the damage caused by Rose-Neath and compensating Stacey and

Mrs. Odom for future medical expenses but excluding the treatments for the

time period between the funeral and the trial for that same damage.

The record reflects that Stacey and Mrs. Odom sought treatment with

Pruett, who diagnosed both women with PTSD related to Mr. Odom’s

visitation and funeral. Pruett treated each woman approximately 30 times.

Mrs. Odom sought further treatment from Dr. Visconte, a psychologist, who

diagnosed her with PTSD related to the visitation and funeral. Stacey began

treatment with Dr. Russell, a psychologist, who diagnosed Stacey with

PTSD stemming from her father’s funeral and visitation. Mrs. Odom’s

expenses for the medical treatment she sought related to her traumatic

experience total $5,145. Stacey’s expenses for her medical treatment are

$4,835.

8

The only other medical expert who testified at trial was Rose-Neath’s

expert psychiatrist, Dr. Feeney. Dr. Feeney diagnosed both plaintiffs with

PTSD linked specifically to the funeral and the condition of Mr. Odom’s

body. Dr. Feeney testified that he would estimate an impairment rating at

10-30% minimum for each plaintiff. The record is clear and undisputed that

both plaintiffs suffered PTSD dating back specifically to the traumatic

experience they had at their loved one’s visitation and funeral. Rose-

Neath’s own expert concluded that the plaintiffs had PTSD. At trial, Rose-

Neath questioned the efficacy of plaintiffs’ treatments but did not dispute the

fact that they incurred the above medical bills.

At the conclusion of the trial, the jury found that Stacey and Mrs.

Odom proved by a preponderance of the evidence that Rose-Neath was

negligent with regard to the visitation and/or funeral of Mr. Odom. The jury

also found that Stacey and Mrs. Odom had proven by a preponderance of the

evidence that Rose-Neath’s negligence caused them damages for which they

should be compensated.

The jury verdict is clear that the jurors believed plaintiffs had been

injured by Rose-Neath’s negligence at the visitation and funeral and that

injury was sufficiently serious that it would require future medical

treatments. As such, the jury clearly believed the injury done to the

plaintiffs occurred at the time of Mr. Odom’s visitation and funeral, not by

reliving the experience during trial, as the defendant suggests. If the injury

done to the plaintiffs, for which Rose-Neath is responsible, occurred at the

time of the funeral, then Rose-Neath should be responsible for the medical

expenses incurred as a result of that injury, beginning from the day of injury.

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We find the fact that the jury failed to award damages for past medical

expenses to be internally inconsistent and not reasonably explained from the

record. By its factual conclusions and the award of future medical expenses,

the jury could not have reasonably ignored the existence of past medical

expenses for the same injuries. Mrs. Odom and Stacey have established

their entitlement to past medical expenses.

If the factual findings are manifestly erroneous or clearly wrong such

that a plaintiff is entitled to an award for a particular category of damages,

and the jury fails to make such an award, the reviewing court is to perform a

de novo review of the record and make an award. Green v. K-Mart Corp.,

03-2495 (La. 5/25/04), 875 So. 2d 838. Based on our review of the record,

we reverse the jury and trial court on these issues and award Mrs. Odom

$5,145 in past medical expenses and Stacey $4,835 in past medical

expenses.

Second Assignment of Error: The jury’s award of future medicals was
abusively low for Rita Odom.

Plaintiffs argue that the jury’s award of $5,000 in future medical

expenses to Mrs. Odom was abusively low because Dr. Visconte estimated

that Mrs. Odom’s future medical expenses would range from $6,000 to

$10,000 for the course of the recommended treatment plan. Rose-Neath

argues that this award was not abusively low because there is contradictory

evidence in the record about the number of future sessions required.

Factual determinations of a trier of fact may not be reversed absent

manifest error or unless they are clearly wrong. Green, supra, quoting

Pinsonneault v. Merch. & Farmers Bank & Trust Co., 01-2217 (La. 4/3/02),

816 So. 2d 270, 278-79. Credibility determinations are for the trier of fact,

10

even as to the evaluation of expert witness testimony. Green, supra. A fact-

finder may accept or reject the opinion expressed by an expert, in whole or

in part. The trier of fact may substitute common sense and judgment for that

of an expert witness when such a substitution appears warranted on the

record as a whole. Id.

In the present matter, while Dr. Visconte testified that her estimate of

the expense of Mrs. Odom’s recommended future care would cost between

$6,000 and $10,000, these numbers were based on an estimated two rounds

of 12 sessions of cognitive processing therapy, at a cost of $150 per session.

The record reflects that at the time of trial, Mrs. Odom had incurred only

$750 in medical expenses from Dr. Visconte and had not been in for

treatment with her for over six months. Further, Dr. Russell, who did not

treat Mrs. Odom, testified that cognitive processing therapy usually only

requires 12 sessions. Finally, all the experts agreed that PTSD can be cured.

We find that the jury’s award of $5,000 to Mrs. Odom for future

medical expenses was not manifestly erroneous. There is evidence in the

record to support a slight deviation from the treatment plan and

corresponding costs recommended by Dr. Visconte. It is not this court’s

place to reweigh the evidence presented to the jury when its conclusions are

not manifestly erroneous. The jury awarded future medical expenses in an

amount not so far from the amount sought by plaintiff as recommended by

the treating provider, and we therefore cannot conclude the jury was in error.

For the foregoing reasons, we find this assignment of error is without merit.

Third Assignment of Error: The jury’s award of general damages was
abusively low.

11

Finally, plaintiffs argue that the jury’s award of general damages in

the amount of $5,000 each is abusively low. Rose-Neath argues that the

amount of general damages awarded by the jury is within its discretion

based on the facts and circumstances of this case.

General damages are those which are inherently speculative in nature

and cannot be fixed with mathematical certainty. Wainwright v. Fontenot,

00-0492 (La. 10/17/00), 774 So. 2d 70. The trier of fact is vested with great

discretion, so that an appellate court should rarely disturb an award of

general damages. Goldsby v. Blocker Through Dep’t of Transp. & Dev.,

51,584 (La. App. 2 Cir. 9/27/17), 244 So. 3d 703. It is only when the award

is beyond that which a reasonable trier of fact could assess for the effects of

the particular injury to the particular plaintiff under the particular

circumstances that the appellate court should increase or reduce the award.

Id.

The role of the appellate court in reviewing general damages 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. Wainwright, supra. An appellate

court may disturb a damage award only when the record clearly reveals that

the jury abused its discretion in making the award, based on the facts and

circumstances peculiar to the case and the individual under consideration.

Goldsby, supra.

The record in this case reveals that the plaintiffs were dealing with the

loss of a loved one, notwithstanding the living arrangements of Mr. Odom

and Mrs. Odom at the time of his death. The jury was tasked with fixing

damages by comparing the already traumatic loss of a loved one with those

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circumstances intensified by the described deteriorating conditions of Mr.

Odom’s body. Mrs. Odom and Stacey undoubtedly suffered from the

experience of seeing the condition of their loved one’s body during his

visitation and funeral. They were both diagnosed with PTSD related

specifically to the visitation and funeral of Mr. Odom. However, there is

evidence that the progress of both plaintiffs’ treatment for PTSD had slowed

by the time of trial. Additionally, in fixing the amount of damages, the jury

had the benefit of testimony at trial, addressing a degree of potential

estrangement between the deceased and his family, as he was living over his

brother’s garage, rather than in the family home, at the time of his death.

Plaintiffs were afforded the opportunity at trial to explain those

circumstances. The full extent of those conditions and any impressions and

credibility determinations were there to be made by the jurors when listening

to live testimony. The issue is not whether this court would have fixed

damages at a different amount, but rather, whether there was sufficient

information presented to the trier of fact to support their ultimate award.

The verdict and award by the jury was originally also subject to

considered review by the trial court. At the conclusion of the trial, plaintiffs

filed a motion for judgment notwithstanding the verdict, and, alternatively,

motion for new trial and/or additur. The trial court, having been present at

the trial, hearing witnesses testify, and having had the benefit of a procedural

history with this litigation, denied the plaintiffs’ request for a JNOV or a

new trial.

The facts of this case and the apparent condition of Mr. Odom’s body

during his visitation and funeral are disturbing. These unfortunate

13

conditions clearly exacerbated the grief of plaintiffs in losing a loved one,

making a difficult situation even worse. The jury found that Rose-Neath’s

negligence turned a sad event into a traumatic one for those closest to Mr.

Odom. The trial court apparently agreed with the conclusions reached by

the jury. Based upon this record we cannot say that the jury abused its

discretion in awarding general damages of $5,000 to each plaintiff based on

the totality of the evidence presented. The discretion vested in the trier of

fact is vast and an award of general damages should rarely be disturbed.

This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, we reverse the trial court’s judgment

insofar as it fails to award past medical expenses to the plaintiffs and we

hereby render judgment awarding past medical expenses in the amount of

$5,140 to Rita Odom and $4,835 to Stacey Weir. In all other respects, we

affirm the remaining portions of the judgment and tax costs of the appeal to

the defendant, Kilpatrick’s Rose-Neath Funeral Homes, Crematorium and

Cemeteries, Inc.

AFFIRMED IN PART, REVERSED IN PART, AND
RENDERED.

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