Earl Lee Scott and Felicia A. Scott v. James Ray Roberts and State of La, Thru the Dotd

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-435

EARL LEE SCOTT AND FELICIA A. SCOTT

VERSUS

JAMES RAY ROBERTS AND STATE OF LA, THRU THE DOTD, ET AL.

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. C-2000-0957-A
HONORABLE STUART S. KAY, JR., DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of John D. Saunders, Marc T. Amy, and Glenn B. Gremillion,
Judges.

AFFIRMED.

Ralph Jerone Williams
Elizabeth Brooks Hollins
Louisiana Department of Justice
901 Lakeshore Drive, Suite 820
Lake Charles, LA 70601
(337) 491-2844
COUNSEL FOR DEFENDANTS/APPELLANTS:
State of Louisiana, through the Department of Transportation
and Development
James Ray Roberts

John Ezell Jackson
Post Office Box 1239
Lake Charles, LA 70602
(337) 433-8866
COUNSEL FOR PLAINTIFFS/APPELLEES:
Earl Lee Scott
Felicia A. Scott

Charles A. Sam Jones, III
Post Office Box 995
DeRidder, La 70634-0995
(337) 463-5532
COUNSEL FOR PLAINTIFF/APPELLEE:
Earl Lee Scott
Felicia A. Scott

AMY, Judge.

Plaintiffs, husband and wife, seek damages resulting from an automobile

accident in which their vehicle, driven by the wife, was struck by a truck driven by

an employee of the State of Louisiana, Department of Transportation and

Development, and belonging to the State. Plaintiffs moved for and were granted

summary judgment as to liability of the State, and the matter proceeded to trial as to

damages. A jury awarded plaintiffs special and general damages, as well as

compensation for loss of consortium. The State appeals, asserting that the jury erred

in awarding excessive general damages. For the following reasons, we affirm.

Factual and Procedural Background

The accident from which the instant matter arose occurred at around midday

on October 7, 1999. According to the record, Felicia Scott, plaintiff-appellee herein,

was driving on the inside lane of westbound US 171 in DeRidder, Louisiana. At the

same time, James Roberts, an employee of the State of Louisiana, Department of

Transportation and Development (DOTD), was driving a state-owned 1991 Ford F-

350 in the right lane of westbound US 171. Roberts negotiated a left turn in an

attempt to enter a parking lot. As Roberts turned, he entered the inside lane of US

171, striking the front right side of Ms. Scott’s automobile. The force of the collision

dragged Ms. Scott’s vehicle a distance of roughly forty feet. According to Ms.

Scott’s testimony, she immediately noticed swelling in both feet and bruising on her

arms and chest. She was treated for her injuries at Beauregard Memorial Hospital

soon after the accident. Emergency room physicians took X-rays, performed an

examination of Ms. Scott’s injuries, and prescribed pain medication. Ms. Scott was

also instructed to wear a sling for her arm and shoulder.

Ms. Scott returned to Beauregard Memorial three days after the accident,

complaining of headaches and pain in her back, neck, and shoulder. Hospital staff

treated her and referred her to her family physician, Dr. Edwin R. Bonilla.

On October 11, 1999, Ms. Scott consulted Dr. Bonilla, presenting complaints

of general soreness. Dr. Bonilla prescribed pain medication and an analgesic and

suggested that Ms. Scott seek chiropractic therapy. The record indicates that in

concurrence with occasional follow-up appointments with Dr. Bonilla, Ms. Scott

visited her chiropractor, Dr. Darryl V. Bauer, of DeQuincy, Louisiana, fourteen times

between October of 1999 and June of 2000, with the concentration of visits occurring

in October and November. Dr. Bauer performed X-rays, which showed misaligned

vertebrae, and he also administered myofascial massage in an attempt to alleviate

some of the pressure on the nerve roots surrounding Ms. Scott’s spinal cord.

According to Ms. Scott’s testimony, Dr. Bauer’s treatments afforded only temporary

relief from the pain she suffered as a result of her injuries.

On Dr. Bauer’s advice, Ms. Scott sought the expertise of an orthopedist. She

began seeing Dr. R. Dale Bernauer on November 15, 1999, and as of the time of trial

in the matter in early December 2002, she remained under his care. Dr. Bernauer

instructed Ms. Scott to wear a body glove and a TENS unit, which she still wore at

the time of trial; however, she stated, these devices provided only temporary relief

from pain. In efforts to determine the status of her injuries and to determine a proper

course of therapy, Dr. Bernauer had Ms. Scott undergo five MRI’s, an EMG, a CAT

scan, and a myelogram. Ms. Scott testified at trial that the EMG was particularly

onerous, and the myelogram and its effects required her to miss a week of work. Dr.

Bernauer testified that surgery had been scheduled for the week after trial for

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purposes of repairing Ms. Scott’s left shoulder and that surgery would more likely

than not be required to repair her lumbar herniation.

Prior to the accident, Ms. Scott held a teller position in a DeRidder bank. Her

job required her to be on her feet for extended periods of time and to handle a

significant volume of coins. Ms. Scott testified at trial that she continued to work at

the bank for two years after the accident, but that, in November 2001, the pain

required that she terminate her employment.

Ms. Scott and her husband, Earl Lee Scott, filed a petition in the instant matter

on October 2, 2000. They named as defendants James Roberts, the driver of the other

vehicle involved in the crash; the State of Louisiana through the Department of

Transportation and Development; and Louisiana Farm Bureau Casualty Insurance Co.

The petition alleged that the Scotts’ damages were caused by the fault, negligence,

and/or the strict liability of the defendants, claiming that the State was liable for the

acts of Roberts, its employee, through principles of respondeat superior.

The Scotts’ petition alleged injuries to Ms. Scott’s neck, thoracic spine, lower

spine, right elbow, leg, and cervicothoracic lumbar region, and sought both special

and general damages associated with the alleged injuries. Mr. Scott sought damages

for loss of consortium.

After the Scotts voluntarily dismissed Louisiana Farm Bureau from the case,

they moved for summary judgment as to their claims against the State. Summary

judgment was granted, and the State was determined to be liable as the sole cause of

the plaintiffs’ injuries. In December 2002, the matter went to trial by jury as to the

amount of damages to be awarded.

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After hearing testimony from Mr. and Ms. Scott, Dr. Bonilla, Dr. Bauer, and

Dr. Bernauer, the jury returned a special verdict awarding the Scotts the following

amounts:

General damages: $300,000
Special damages:
Past Medical Expenses: $16,930.40
Future Medical Expenses: $45,000
Loss of Earnings to Date: $18,308
Future loss of Earnings or Earning Capacity: $25,000

Additionally, the jury determined that the State was responsible for Mr. Scott’s

loss of consortium and awarded him compensation of $25,000.

The State appeals, asserting in its sole assignment of error that the general

damages awarded are excessive.

Discussion

The State claims that the jury erred in awarding $300,000 in general damages

to Ms. Scott and seeks a reduction in the amount of general damages awarded. With

respect to Ms. Scott’s neck injuries, the State underscores the trial testimony of Ms.

Scott’s orthopedist that her injuries were not substantial enough to necessitate

surgery. Additionally, the State requests that we compare prior general damages

awards for plaintiffs with injuries to the L5-S1 region of the spinal cord. Finally, the

State notes that Ms. Scott’s physicians have not seen fit to assign her a disability; Ms.

Scott was not taking prescription pain medication at the time of trial; and she

terminated employment without her physicians’ express orders to do so.

General damages are described in the Louisiana Supreme Court’s opinion in

Duncan v. Kansas City Southern Railway Co., 00-0066, p. 13 (La. 10/30/00), 773

So.2d 670, 682, cert. dismissed, 532 U.S. 992. 121 S.Ct. 1651 (2001), as:

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[T]hose 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.”
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. La. Civ. Code art. 2324.1; Hollenbeck v.
Oceaneering Int., Inc., 96-0377 (La.App. 1 Cir. 11/8/96), p.13; 685
So.2d 163, 172.

In Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied,

510 U.S. 1114, 114 S.Ct. 1059 (1994), the supreme court enunciated its general

disapproval of the practice of comparing the present award to past awards in efforts

to determine whether the present award was the product of the factfinder’s abuse of

discretion. Instead, the supreme court stated:

The initial inquiry is whether the award for the particular injuries and
their effects under the particular circumstances on the particular injured
person is a clear abuse of the “much discretion” of the trier of fact.
Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963); Ballard v.
National Indem. Co. of Omaha, Neb., 246 La. 963, 169 So.2d 64 (1964);
Lomenick v. Schoeffler, 250 La. 959, 200 So.2d 127 (1967). Only after
such a determination of an abuse of discretion is a resort to prior awards
appropriate and then for the purpose of determining the highest or
lowest point which is reasonably within that discretion. Coco v.
Winston Industries, Inc., 341 So.2d 332 (La.1976); Bitoun v. Landry,
302 So.2d 278 (La.1974); Spillers v. Montgomery Ward & Co., 294
So.2d 803 (La.1974).

Youn, 623 So.2d at 1260-61. The court then turned its attention to the standard of

review to be implemented by appellate courts in determining whether an abuse of

discretion has occurred:

The standard for appellate review of general damage awards is difficult
to express and is necessarily non-specific, and the requirement of an
articulated basis for disturbing such awards gives little guidance as to
what articulation suffices to justify modification of a generous or stingy
award. Nevertheless, the theme that emerges from Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963) through Coco v. Winston Industries,
Inc., 341 So.2d 332 (La.1976), and through Reck [v. Stevens, 373 So.2d
498 (La.1979)] to the present case is that the discretion vested in the
trier of fact is “great,” and even vast, so that an appellate court should

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rarely disturb an award of general damages. Reasonable persons
frequently disagree about the measure of general damages in a particular
case. It is only when the award is, in either direction, 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. at 1261.

In determining whether an award of general damages constitutes an abuse of

discretion, appellate courts must decide whether a rational trier of fact could have

fixed the general damages award at that same level. Youn, Id., citing Bartholomew

v. CNG Producing Co., 832 F.2d 326 (5th Cir. 1987). In so doing, appellate courts are

to examine the record in the light most favorable to the prevailing party at trial. Id.

When we examine the record in the light most favorable to Ms. Scott, we find

the evidence therein supports the general damages award in controversy on appeal.

The record reflects that before the accident at issue, Ms. Scott had slight problems

with her right shoulder but no problems with her left shoulder, back, neck, legs, or

feet. Ms. Scott testified at trial that as a result of the accident, and despite the pain

medication she takes, she suffers painful neck spasms, her back hurts constantly, her

leg occasionally bothers her, both shoulders hurt, and her feet swell. In fact, she

noted, the pain is still so severe that it awakens her when she is asleep at night. She

told the trial court of her initial pain immediately following the accident, and she

described numerous, persistent attempts on her part to seek medical treatment for her

injuries and pain. Ms. Scott explained that the efforts of her chiropractor and general

practitioner had provided only temporary relief from her suffering. Upon

commencing treatment with Dr. Bernauer, Ms. Scott was required to endure several

uncomfortable, painful tests over a period of time; as previously mentioned, the

myelogram forced her to miss one week of work. Ms. Scott explained at trial that she

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had attempted to work as a bank teller in spite of her injuries, but the pain became too

great, prompting her to resign her position. She further testified that she would like

to reenter the work force, but the pain and her injuries simply will not allow it. Dr.

Bernauer testified that he did not recommend that Ms. Scott return to work.

Mr. Scott described to the trial court the decline in Ms. Scott’s ability to

perform household work after the accident. He testified that he has had to take up the

duty of housework due to his wife’s condition. He noted that in the time before she

quit her job as a teller, she would come home at night in tears due to pain. Mr. Scott

mentioned that he and his wife are unable to travel in the manner to which they were

accustomed and that Ms. Scott is no longer able to travel to California to visit her

father or to Dallas to visit her mother.

Furthermore, the record indicates that Ms. Scott was scheduled to undergo an

acromioplasty on her left shoulder the week after trial in this matter and that Dr.

Bernauer believed that more likely than not, an intralumbar fusion was necessary. As

far as Ms. Scott’s neck is concerned, she testified that it still bothered her, but Dr.

Bernauer said that surgery would not help correct the situation. The shoulder surgery

was expected to require several weeks’ recovery and physical therapy; the back

surgery would require recovery time of one full year. Thereafter, according to Dr.

Bernauer’s testimony, Ms. Scott will not be able to return to her former employment

as a teller due to limitations on bending, lifting, and standing for long periods of time.

Moreover, the verdict indicates that the jury found Ms. Scott’s testimony

credible, as they awarded her damages for past and future lost wages and future

medical expenses. (The parties had previously stipulated the amount of past medical

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expenses.) These determinations are now final in that the State has not questioned

them on appeal.

It is the well-settled jurisprudence of this state that in making an award of

general damages, the trier of fact “must consider the severity and duration of the

injured party’s pain and suffering.” LeBlanc v. Stevenson, 00-0157, p. 6 (La.

10/17/00), 770 So.2d 766, 772. It is apparent that in its consideration of the general

damages award, the jury noted Ms. Scott’s testimony as to her pain, injuries, and

impending surgeries and her testimony that she has suffered considerable pain as a

result of her injuries over the past three years since the accident. The evidence

supports this conclusion and indicates that the award for general damages was not an

abuse of the jury’s discretion. It is therefore not necessary for us to consider prior

awards for similarly situated plaintiffs as the State urges us to do. This assignment

of error is without merit.

DECREE

For the foregoing reasons, the award of general damages is affirmed. All costs

of this proceeding are assigned to the defendant, the Department of Transportation

and Development, in the amount of $7,752.92.

AFFIRMED.

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