Michelle Detraz v. Victor Lee D/B/A Virgin Nails

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-988

MICHELLE DETRAZ

VERSUS

VICTOR LEE D/B/A VIRGIN NAILS

**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20026019
HONORABLE HERMAN C. CLAUSE, DISTRICT JUDGE

**********
ULYSSES GENE THIBODEAUX
CHIEF JUDGE
**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, Michael
G. Sullivan, Billy Howard Ezell, and James T. Genovese, Judges.

SULLIVAN, J., DISSENTS FOR THE REASONS ASSIGNED BY JUDGE
GENOVESE.

GENOVESE, J., DISSENTS AND ASSIGNS WRITTEN REASONS.

REVERSED AND RENDERED.

Philip Stephen Aucoin, Jr.
Stacy S. Lee
400 East Kaliste Saloom Road - Suite 1400
Lafayette, LA 70508
Telephone: (337) 291-1743
COUNSEL FOR:
Defendants/Appellees - Bechin Huynh and Bechin Huynh, d/b/a
Virgin Nails

Chris Paul Villemarette
Scott M. Hawkins
Hawkins, Garbin & Villemarette, LLC
102 Asthma Boulevard - Saloom III
Suite 110
Lafayette, LA 70508
Telephone: (337) 233-8005
COUNSEL FOR:
Plaintiff/Appellant - Michelle Detraz

THIBODEAUX, Chief Judge.

In this negligence action, Melissa Detraz appeals a judgment entered

pursuant to a jury verdict denying her petition for damages for scars resulting from

an infection contracted during a pedicure at Virgin Nails, a nail salon. She argues the

jury incorrectly concluded that, despite Virgin Nails’ inadequate sterilization

procedures, their negligence did not cause an infection in her legs. Because Ms.

Detraz has proven causation, we reverse the judgment and assign damages of

$79,380.00 for the cost of future surgeries and $50,000.00 in general damages.

I.

ISSUES

Ms. Detraz argues the jury erred when it concluded that, although Virgin

Nails negligently failed to sanitize its pedicure equipment, their negligence did not

cause the staph infection Ms. Detraz contracted that left disfiguring scars on her legs.

Ms. Detraz urges that the jury failed to weigh properly the testimony of Dr. Darrell

Henderson regarding the causal link between the unsanitary pedicure and her staph

infection.

Ms. Detraz also appeals the trial court’s refusal to honor the jury’s

request to review certain testimony after deliberations began. Additionally, she

asserts that the presence of an alternate juror in the deliberation room after the jury

retired corrupted the deliberation process, making a new trial necessary. Finally, Ms.

Detraz also filed a motion to make an audiotape of certain testimony part of the

record. Because we conclude the jury erred with respect to causation and reverse

their verdict, we do not address these issues.

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II.

FACTS

Melissa Detraz received a pedicure at Virgin Nails on September 23,

2002.1 That morning, she shaved her legs as usual but recalled scratching the back

of her right leg. Before she sat down in the pedicure chair vacated by the previous

client, Ms. Detraz observed the nail technician spray the whirlpool tub attached to the

chair and wipe it clean, a process that took about ten or fifteen seconds. As part of

the pedicure, Ms. Detraz immersed her bare legs into a tub of water approximately

halfway up her calf. The technician then trimmed and shaped her nails and cuticles.

The technician applied new nail polish and massaged Ms. Detraz’s legs. The

pedicure took about forty-five minutes. Ms. Detraz testified she felt no pain or injury

to her toes during the pedicure. Within two days of receiving the pedicure, she

noticed a red, tender bump on the back of her right leg in an area that corresponded

to the place where she had cut herself while shaving the day of the pedicure. The red

bump quickly multiplied, turning into oozing sores which did not resolve, despite her

efforts to care for them and clean them herself.

Ms. Detraz went to the Medical Center of Southwest Louisiana

emergency room on October 22, 2002. The triage nurse asked her numerous

questions, such as whether she went hiking, whether she had ever had a pedicure, and

whether she tanned. The nurse, however, noted in Ms. Detraz’s chart only that

“Unaware if from tanning bed or fungus.” Ms. Detraz testified that, although she

admitted to the ER nurse she had used tanning beds in the past, she did not tell the

nurse she thought she had contracted the infection from a tanning bed. In fact,

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Although Virgin Nails makes much of Ms. Detraz’s inconsistent deposition testimony
regarding the date of the pedicure, by the time of trial the date was clearly established. Ms. Detraz
refreshed her recollection of the date of the pedicure based on a check payable from her account to
Virgin Nails, bearing her signature and endorsed by Bechin Huynh. The check is dated September
23, 2002.

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according to her testimony, she had not used a tanning bed in five to six months

before her pedicure. The ER told Ms. Detraz she had contracted a fungus, but

prescribed Nystatin, which is a yeast medication.

Despite the medication, there was no improvement and the infection

continued to spread. On November 1, 2002, Ms. Detraz visited Dr. Ronald Daigle,

a dermatologist. Although he attempted to culture the infection, no bacteria grew

from the sample and he was unable to clinically confirm his diagnosis. He prescribed

Bactrim and Omincef which are used to treat staph infections. Ms. Detraz responded

to the antibiotics and her symptoms began to resolve. However, the sores had caused

serious scarring on her legs. Ms. Detraz next went to Dr. Adrian Stewart. Dr.

Stewart could not identify the derivation of her infection, but discouraged surgery for

the scars.

Finally, Ms. Detraz sought treatment from Dr. Darrell Henderson, a

plastic surgeon, on April 16, 2003. Dr. Henderson took a complete medical history

concerning the pedicure. He informed Ms. Detraz that her scars were permanent and

would require several surgeries to correct. Ms. Detraz sued Virgin Nails for damages,

arguing that its failure to properly clean the pedicure equipment caused her staph

infection and subsequent scarring. During trial, Ms. Detraz presented the jury with

evidence that Virgin Nails did not follow appropriate procedures for sanitizing its

equipment before each pedicure. After a trial on the merits, a jury concluded that

Virgin Nails had been negligent in its administration of its pedicure procedures, but

its negligence had not caused Ms. Detraz’s injuries. Ms. Detraz appeals.

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III.

LAW AND DISCUSSION

The Louisiana Supreme Court delineated the standard for assessing

liability for damages caused by a party’s negligence in its decision in Fowler v.

Roberts, 556 So.2d 1 (La.1989). In that opinion, the court stated:

The determination of liability in a negligence case
usually requires proof of five separate elements: (1) proof
that the defendant had a duty to conform his conduct to a
specific standard (the duty element); (2) proof that the
defendant’s conduct failed to conform to the appropriate
standard (the breach element); (3) proof that the
defendant’s substandard conduct was a cause-in-fact of the
plaintiff’s injuries (the cause-in-fact element); (4) proof
that the defendant’s substandard conduct was a legal cause
of the plaintiff’s injuries (the scope of liability or scope of
protection element); and (5) proof of actual damages (the
damages element).

Id. at 4.

Thus, to determine liability for negligence, a party must undertake this duty/risk

analysis. In this case, the salient issue is whether Virgin Nails’ negligent breach of

its duty to customers to control the risk of infection caused Ms. Detraz’s infection and

subsequent scarring.

Ms. Detraz demonstrated that Virgin Nails did not follow proper

sanitization procedures when cleaning its equipment, specifically the pedicure tub in

which Ms. Detraz immersed her feet and lower legs during the pedicure. Virgin Nails

used Barbicide, a disinfectant, to clean the whirlpool tubs attached to the pedicure

chairs. The directions on the Barbicide bottle require the user to prepare a solution

of two ounces of Barbicide to thirty-two ounces of water and thoroughly wet all

surfaces with the mixture. The instructions require that the surface remain wet for ten

minutes, and then be allowed to air dry. Alternatively, the user may soak the item in

the Barbicide solution. Actually soaking the tub in solution is not practical, because

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the tub is attached to the pedicure chair, so the operators must drench the surfaces of

the tub with the Barbicide solution for ten minutes, and then permit the wet surface

to dry in order for it to be effective.

Bechin Huynh and Bon Huynh, the operators of Virgin Nails, provided

inconsistent testimony about the procedures they followed to clean the pedicure tubs.

For example, Ms. Huynh testified that she sprays the tub with Barbicide, then again

with clean water, and wipes it down with a clean towel. She testified that she leaves

the Barbicide solution on the tub surface for ten minutes. During her deposition,

however, she stated that she only sprayed and wiped the surface of the tub, without

allowing the solution to sit on the surface for ten minutes. She also testified she did

not “soak” the surface of the tub.

The directions also require permitting the wet surface to air dry after

being thoroughly wet for ten minutes. While Ms. Huynh claimed that she does permit

the tub surface to air dry, she also testified that the surface was sprayed with clean

water and then wiped dry after only five or ten minutes.

Mr. Huynh further explained that, to clean the tub between customers,

the technician sprays Barbicide on the tub just before the end of each customer’s

pedicure, when her feet are removed and the water drained from the tub. The

technician then massages the customer’s legs and paints her toenails, which takes

between ten and fifteen minutes. She then finishes cleaning the tub by rinsing the tub

with clean water and wiping it with a clean towel. Mr. Huynh also admitted that he

prepares a stronger Barbicide solution than necessary, assuming that a stronger

solution would be more effective.

Kathy Arceneaux, a licensed cosmetologist for twenty years, was

admitted as an expert in cosmetology. She read from a standard cosmetology

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textbook, used to educate cosmetology students regarding guidelines for use of

disinfectants. The text admonished that “disinfectants must always be used in strict

accordance with manufacturer’s instructions” and noted specifically that “mixing

chemicals stronger than recommended by the manufacturer counteracts their

effectiveness” and might be dangerous at higher concentrations. The text continued:

“Such variables as mixing precautions and exposure times demand particular

attention.” Ms. Arceneaux testified that, in her expert opinion, mixing the chemical

stronger than manufacturer recommendations was ill-advised, and failure to follow

the manufacturer’s instructions could render the product ineffective. Thus, the salon

operators’ testimony demonstrates that they did not strictly adhere to the Barbicide

instructions as to solution strength, exposure time, and drying procedure. The jury’s

finding of negligence in a case where the defendant’s responsibility was to provide

a clean environment for nail care customers can only be construed to mean they found

Virgin Nails’ sanitization procedures inadequate.

The Jury Verdict Form asked the jury whether Virgin Nails was

negligent in performing the pedicure. The jury answered in the affirmative.

Answering this question in the affirmative, however, enfolds all five of the Fowler

factors, including causation. The next Verdict Form question, however, asked the

jury whether this negligence caused Ms. Detraz’s injuries. The jury answered in the

negative. Given their response to the first question on negligence, the jury’s response

on causation is counterintuitive. Because the Jury Verdict Form is awkwardly

worded using the comprehensive word negligence, the crucial question is causation.

Ms. Detraz asserts the Housley presumption as the basis of her proof of

causation. The Housley presumption derives from the Louisiana Supreme Court case

Housley v. Cerise, 579 So.2d 973 (La.1991), in which the court determined:

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A claimant’s disability is presumed to have resulted from
an accident, if before the accident the injured person was
in good health, but commencing with the accident the
symptoms of the disabling condition appear and
continuously manifest themselves afterwards, providing
that the medical evidence shows there to be a reasonable
possibility of causal connection between the accident and
the disabling condition.

Id. at 980 (quoting Lucas v. Ins. Co. of N. Am., 342 So.2d 591 (La.1977)).

Thus, a plaintiff is entitled to a presumption of causation if she establishes the

elements of Housley. In Juneau v. Strawmyer, 94-903 (La.App. 4 Cir. 12/15/94), 647

So.2d 1294, 1299, the fourth circuit described the three requirements for the

application of Housley:

First, he must prove he was in good health prior to the
accident at issue. Second, he must show that subsequent to
the accident, symptoms of the alleged injury appeared and
continuously manifested themselves afterwards. And third,
he must demonstrate through evidence – medical,
circumstantial, or common knowledge – a reasonable
possibility of causation between the accident and the
claimed injury.

Id. at 1299.

Virgin Nails claims that Ms. Detraz did not show she was healthy before

the pedicure; however, it does not offer any medical records that show otherwise.

There is no evidence that Ms. Detraz suffered any dermatological infections prior to

the event. None of the three doctors testified that Ms. Detraz had divulged any prior

medical condition, such as allergies, skin infections, or injuries to her legs. In fact,

Dr. Henderson testified that, besides the scars, her skin was free of imperfections.

Additionally, Ms. Huynh testified that she would not have permitted someone with

symptoms like those of Ms. Detraz to receive a pedicure at Virgin Nails. Therefore,

Ms. Detraz did not have these symptoms on or before September 23, 2002, the date

of the pedicure. Finally, Ms. Detraz and her mother testified that this condition

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developed after the pedicure, and not before. Defendants suggest that Ms. Detraz’s

testimony and that of her mother is self-serving and, therefore, insufficient to show

that she did not suffer from any medical conditions before the staph infection. Courts

have rejected self-serving testimony in cases where the testimony is uncorroborated,

or other evidence contradicts the substance of the testimony. Dubriel v. Horseshoe

Entertainment, 34,885 (La.App. 2 Cir. 8/22/01), 793 So.2d 459. In this case,

however, Ms. Detraz’s testimony is both corroborated and uncontradicted. Therefore,

Ms. Detraz has satisfied the first requirement of Housley.

The second element of Housley requires that the symptoms of the alleged

injury appear subsequent to the accident and continuously manifest themselves

afterwards. In Whiteman v. Worley, 96-305 (La.App. 4 Cir. 2/19/97), 688 So.2d 207,

writ denied, 97-966 (La. 5/30/97), 694 So.2d 246, the fourth circuit declined to find

causation based on Housley. The court reasoned that the plaintiff’s eye infection did

not manifest until ten days after she was hit in the eye with a pen and that there was

“much less of the ‘close temporal relationship’ . . . between accident and symptoms.”

Whiteman, 688 So.2d at 211. In contrast, in Lindsey v. USAA Property & Casualty

Insurance Co., 02-797, p. 8 (La.App. 4 Cir. 10/9/02), 830 So.2d 335, 339, the court

credited a car accident victim’s statement that “the injury was objectively apparent

to him immediately after the accident.” The victim testified he felt a sharp and

persistent pain in his neck and back the day after the accident. The pain had not

resolved by the time of trial. The defendant in Poland v. State Farm Mutual

Automobile Insurance Co., 03-1417 (La.App. 1 Cir. 6/25/03), 885 So.2d 1144, argued

that the plaintiff could not use Housley to establish causation since she waited 137

days after the accident before she sought treatment. The court disagreed, observing

that the plaintiff and three witnesses testified that her symptoms manifested within

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days of the accident. Plaintiff’s testimony that she had symptom-free days was not

inconsistent with “continuous manifestation” of the injury, particularly because her

symptoms never completely resolved. Finally, the court concluded that her “failure

to seek medical treatment for several months does not preclude the possibility that she

was, in fact, injured, and in pain.” Id. at 1150-51. In contrast, in Morris v. Allstate

Insurance Co., 25,148 (La.App. 2 Cir. 2/23/94), 632 So.2d 1209, writ denied, 94-

1044 (La. 6/17/94), 638 So.2d 1099, the court found that the victim of a car accident

did not continuously manifest symptoms because, when she did visit her doctor, she

did not complain of pain or symptoms. Furthermore, later medical reports did not

show she told her doctors she had experienced intermittent back pain since the

accident. Id.

Virgin Nails argues that the infection lacks a close temporal relationship

to the pedicure because Ms. Detraz waited a month to seek medical treatment. In

Poland, 885 So.2d 1144, however, the first circuit held that a several month delay in

seeking treatment did not undermine the Housley presumption. Here, as in Poland,

885 So.2d 1144, Ms. Detraz’s symptoms manifested within two to three days of the

pedicure. Additionally, she testified she did not obtain treatment because she was

attempting to treat the infection herself with over-the-counter medication. When she

did seek medical attention, she went to several doctors with the same complaint.

Morris, 632 So.2d 1209. Ms. Detraz never had symptom-free days. Her symptoms

manifested within two to three days of the pedicure, and lasted continuously as an

active infection until late November 2002, after which they became scars.

The final prong of Housley requires Ms. Detraz show there was a

reasonable possibility, not probability, Virgin Nails’ negligent sanitization procedures

caused the staph infection. Ms. Detraz may rely on various evidence, including

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medical and lay testimony, as well as circumstantial evidence, to establish causation.

Juneau, 647 So.2d 1294. A precise medical diagnosis is not necessary for plaintiff

to carry this burden. The medical evidence must show that “the nature of the

accident, when combined with other facts of the case, raises a natural inference

through human experience that such a causal connection exists.” Lubom v. L. J.

Earnest, Inc., 579 So.2d 1174, 1179 (La.App. 2 Cir. 5/8/91). In Hall v. Folger Coffee

Co., 02-920 (La.App. 4 Cir. 10/1/03), 857 So.2d 1234, all three doctors who testified

concluded that the plaintiff’s injuries were consistent with his description of the

accident. Defendant “emphasized the doctors’ failure to recite that it is more probable

than not that [plaintiff]’s injuries were caused by the trauma suffered in the accident.”

Id. at 1248. The court quoted Housley’s holding that “it is not necessary for the

plaintiff’s medical witness to recite the proper legal jargon verbatim before the trial

court can properly rely on his testimony.” Id. at 1248-49 (quoting Housley, 579

So.2d at 980). The Hall decision concluded that the doctors’ affidavits, in

conjunction with the plaintiff’s testimony, were sufficient evidence to establish

causation via Housley.

In contrast, Gage v. Potts, 94-1542 (La.App. 1 Cir. 4/7/95), 653 So.2d

1183, declined to find causation based on Housley. The plaintiff, a pregnant woman,

argued that an accident caused her to go into labor two months afterwards and suffer

serious complications. The medical experts all agreed on an alternate cause of the

injury: the plaintiff had suffered from an infection known to trigger early labor.

Additionally, they all agreed that it was not reasonably possible for an accident to

cause labor two months later. Similarly, in Whiteman v. Worley, 688 So.2d 207, the

medical evidence showed it was highly unlikely the plaintiff contracted a Chlamydia

infection in her eye from a pen that bumped into her eye. The medical testimony

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strongly held that Chlamydia is transmitted through sexual contact, and any other

mode of transfer would be extraordinarily unusual.

In Arceneaux v. Howard, 633 So.2d 207 (La.App. 1 Cir. 1993), writ

denied, 93-3128 (La. 2/11/94), 634 So.2d 833, the third circuit sustained the Housley

presumption of causation despite medical testimony that the court itself admitted was

not ideally certain. Plaintiff suffered injuries in a car accident and was taken to the

emergency room. His car was totaled and the impact was strong enough to break his

seat belt. Plaintiff evidently hit his head during the crash, but did not display

symptoms of injury to the front of his head. Ten days after the accident, the plaintiff

began to suffer seizures. The court held:

In this case, none of the neurologists could state with
any degree of certainty that he considered the accident to
be a contributing factor in causing the seizures. However,
all three based their opinion on an assessment of the
seriousness of the accident as related by plaintiff. All
three doctors agreed that head injuries can cause
subsequent onset of seizures, but were of the impression
that plaintiff’s accident was relatively minor and not the
type which triggered seizures.

....

The medical records from the accident are sufficient
to establish a reasonable possibility that plaintiff’s seizures
were caused by the accident. The first seizure occurred
only ten days after the impact and followed a continuous
period of disorientation . . . , which began with the
accident. A ten-day delay prior to the onset of the first
seizure does not mean the seizure was not caused by the
accident. . . . Although plaintiff presented no medical
evidence to show that the type of impact to his head
generally was a type of injury which would cause seizures,
we do not find this fatal to his prima facie case. We
believe plaintiff has met the minimal standard of a
‘reasonable possibility,’ such that a prima facie case was
established and he should have been given the benefit of
the legal presumption stated in Housley.

Id. at 210-11 (emphasis added).

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The court drew on a wide variety of evidence, including medical evidence from the

neurologists and the emergency room report, practical evidence, such as accident

reports describing the nature of the collision, and the plaintiff’s own history of the

injury and subsequent seizures, to conclude that the plaintiff had proven causation

under the Housely presumption. Even though none of the physicians was willing to

state that the collision caused the seizures, the court found that the evidence in

aggregate was sufficient to conclude there was a reasonable possibility the accident

had caused the plaintiff’s seizures.

Ms. Detraz presented medical testimony from Dr. Darrell Henderson, a

licensed plastic surgeon. Defendants initially had attempted to exclude Dr.

Henderson’s testimony before trial. This motion, however, was denied and Dr.

Henderson was accepted as an expert, without any limits on issues on which he could

render his expert opinion. Defendants did not appeal the denial of their motion.

Therefore, Dr. Henderson is properly qualified to render an expert opinion on

causation. He testified that, based on the history provided to him by Ms. Detraz, the

unsanitized pedicure tub was the cause of the infection. He constructed a timeline,

beginning with Ms. Detraz shaving the morning of the pedicure. The shave created

many nicks and cuts. When she immersed her legs in the unsanitary bath, the water

introduced bacteria into these tiny wounds, resulting in her infection. She began

manifesting symptoms within two to three days of exposure, which Dr. Henderson

believed represented the incubation period for the bacteria in her system. Dr.

Henderson felt it was significant that the only areas affected by the infection were the

areas that were both shaved and exposed to the water, which explained why her feet

did not suffer any infection. He also testified that, in his practice, he had experience

treating patients who had contracted infections from pedicures.

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Dr. Stewart and Dr. Daigle, in contrast, were unwilling to testify as to

causation. They both agreed that it was possible that a customer could contract an

infection from an improperly sanitized tub. However, because staph bacteria is

ubiquitous in the environment, a staph infection could be caused by many different

things. While they were unwilling to adopt Dr. Henderson’s position, they would not

reject it. Dr. Daigle, for instance, admitted that it was possible to draw a temporal

relationship between Ms. Detraz’s exposure to the bacteria and her later symptoms,

particularly in light of the fact that her legs were freshly shaved.

Dr. Henderson’s position was buttressed by other corroborating expert

testimony. Kathy Arceneaux, a licensed cosmetologist, was accepted as an expert in

cosmetology. She has been a cosmetologist for twenty years and has received

specialized training in pedicures and manicures. Ms. Arceneaux testified that, in her

expert opinion, improperly cleaning pedicure tubs can generate bacteria that could be

dangerous to clients. Additionally, Ms. Detraz introduced an article in Archives of

Dermatology, a medical journal, describing the infectious potential of improperly

cleaned manicure and pedicure equipment, including specific discussion of bacteria

discovered on improperly sanitized whirlpool tubs, such as the ones used by Virgin

Nails. She also introduced an article from Nail Pro Magazine, a nail salon trade

magazine, describing safe methods for disinfecting manicure and pedicure equipment,

including proper use of disinfectants.

After the Housley presumption has been established, “the defendant has

the burden of producing evidence to persuade the trial court that it is more probable

than not that the injury did not result from the accident.” Morris, 632 So.2d at 1211.

For example, in Seit v. Scofield, 01-1295 (La.App. 5 Cir. 2/26/02), 812 So.2d 764, the

court determined that there were plausible explanations for the victim’s back pain

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other than an altercation that she alleged resulted in her injuries. The victim had been

in a car accident prior to the fight. Also, she weighed over 200 pounds. The court

cited these as alternative causes of her injury, preventing application of Housley.

Virgin Nails did not provide satisfactory evidence of an intervening cause that would

destroy the causal link between the pedicure and the infection. They assert that Ms.

Detraz contracted the infection from a tanning bed. They attempt to explain this

assertion by referring to the note taken by the nurse in the ER regarding possible use

of a tanning bed as the source of the infection. Ms. Detraz testified at trial, however,

that the nurse had questioned her on multiple activities, including tanning, and she

answered honestly. She also testified that it had been months since she had last

visited a tanning salon; the tanning salon could not be responsible for the infection,

since the symptoms manifested months after her last visit. Gage, 653 So.2d 1183.

Furthermore, although Dr. Stewart testified she had had some experience with

patients who contracted skin infections while at a tanning parlor, Dr. Henderson

described precisely how difficult, although clearly not impossible, it would be to

contract such an infection. He testified that in order for an infection to occur, there

would have to be precise and prolonged contact between an infected spot on the

tanning bed and an open wound on the body of the person tanning. He also noted that

a dry tanning bed could not compare to the more bacteria-friendly environment found

in a damp whirlpool tub. Given the impossible timeline and the greater ease with

which one might contract an infection from a whirlpool rather than a tanning bed,

defendants’ alternative cause is not acceptable.

In Cooper v. United Southern Assurance Co., 97-250, p. 24 (La.App. 1

Cir. 9/9/98), 718 So.2d 1029, 1041, the first circuit stated: “The issue of whether

plaintiff is entitled to the benefit of [the Housley] presumption is factual and is

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subject to the manifest error standard of review. If the jury’s findings are reasonable

in light of the record viewed in its entirety, the court of appeal may not reverse.

Consequently, when there are two permissible views of the evidence, the fact finder’s

choice between them cannot be manifestly erroneous or clearly wrong.” See also

Dixon v. Traveler’s Ins. Co., 02-1364 (La.App. 4 Cir. 4/2/03), 842 So.2d 478.

However, the Louisiana Supreme Court has held that an appellate court

is not required to affirm the trier of fact’s refusal to accept the uncontroverted

testimony of a witness as true. Mart v. Hill, 505 So.2d 1120 (La.1987). In Mart, the

trial court committed error when it failed to award plaintiff damages because it

determined the accident did not cause plaintiff’s injury. Later cases employing Mart

have clarified its application: “Although trial court findings are accorded great

deference, appellate courts have a duty to ascertain whether those findings are

justified by the record. If an appellate court concludes that the trial court’s factual

findings are clearly wrong, the mere fact that some evidence in the record supports

the finding does not require the court to affirm.” Leale v. Dubois, 99-957, pp. 2-3

(La.App. 3 Cir. 4/5/00), 756 So.2d 684, 688 (citation omitted). The third circuit

further explained in Butler v. Zapata Haynie Corp., 92-71 (La.App. 3 Cir. 2/23/94),

633 So.2d 1274, 1279, writ granted in part and amended on other grounds, 94-1171

(La. 7/5/94), 639 So.2d 1186, cert. denied, 513 U.S. 1017, 115 S.Ct. 579 (1994):

In other words, an intermediate appellate court is not
required to follow blindly the factual determinations of a
trial court without discerning whether that court’s
discretion in evaluating facts and credibility has been
abused. Certainly, the fact finder should be accorded great
latitude and discretion, but discretion must always be
buttressed by sound judgment.

Id. at 1279.

The jury in this case was manifestly erroneous in concluding a lack of

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causation. The equivocal testimony of Dr. Stewart and Dr. Daigle does not detract

from the strength of Dr. Henderson’s testimony. Their unwillingness to adopt Dr.

Henderson’s perspective is not sufficient to controvert his testimony.

Damages

Dr. Henderson characterized Ms. Detraz’s scars as “markedly

disfiguring.” A markedly disfiguring scar is one that can be seen easily across a

room. There are twenty-two scars of varying size and depth, some as deep as two to

three millimeters. Dr. Henderson testified there was a dramatic change of coloration

between the scars and the surrounding skin. He also noted that, otherwise, Ms.

Detraz’s skin was perfect in texture, color, and consistency. Because the scars are

depressed, Ms. Detraz cannot effectively cover them with cosmetics. Therefore,

surgery is the most appropriate solution to resolve her scars.

The shape and number of scars will necessitate complicated and

extended surgeries. After surgery, she will need a leg brace extending from the thigh

to the knee to immobilize her leg, and she will have to give up sports or running.

Therefore, one leg will have to be treated at a time, otherwise Ms. Detraz would be

entirely unable to walk. She will require approximately six surgeries over the course

of several years to treat all of her scars. The surgery will not eliminate the scars

entirely, but merely replace the round scars with linear scars. Furthermore, if elective

surgery is not undertaken now, she may need surgery on an emergency basis as she

ages if the scar tissue begins to deteriorate.

Ms. Detraz testified that the scars have impacted her self-confidence.

She no longer wears skirts or shorts, and does not visit pools or beaches. Her

employer, Pascale’s Spa, requires her to wear slacks and she is not allowed to go near

the customers. Furthermore, while she had an active infection, she was afraid to

16

touch her child for fear of passing the infection on to him.

Dr. Henderson estimated the total cost of all the surgeries would be

$79,380.00. We award Ms. Detraz all of her past and future medical expenses. Ms.

Detraz also requested $187,000.00 in general damages, a figure which represents

$8,500.00 per scar, with twenty-two scars. In reaching this sum, she relies on Moore

v. Healthcare Elmwood, Inc., 582 So.2d 871 (La.App. 5 Cir. 6/5/91) in which the fifth

circuit upheld an award of $8,500.00 for two, five-inch linear scars. Ms. Detraz

points out that Dr. Henderson testified that surgical revision of circular scars is more

difficult than of linear scars. Additionally, he described the scars as “markedly

disfiguring.” Ms. Detraz also recounted the effect the scars have had on her life, and

the difficulties she will undergo as a result of the series of surgeries. In rendering an

initial award of general damages, an appellate court is “not limited to an award of

either the lower or highest amount we would affirm. Instead, we set the award in an

amount which is just compensation for the damages revealed by the record.” Butcher

v. City of Monroe, 31,932, p. 10 (La.App. 2 Cir. 5/5/99), 737 So.2d 189, 196, writ

denied, 99-1608 (La. 9/17/99), 747 So.2d 566; Savelle v. Heilbrunn, 552 So.2d 52

(La.App. 3 Cir. 1989), writ denied, 556 So. 2d 1267 (La.1990). In De Los Reyes v.

USAA Casualty Insurance Co., 28,491 (La.App. 2 Cir. 6/26/96), 677 So.2d 668, the

second circuit reviewed a general damages award of $35,000.00 for a teenage girl

who had suffered five scars, ranging from three centimeters to twenty centimeters in

length, in addition to other injuries. She had been forced to give up a modeling job

because of the scars. The court noted that “[g]eneral damages involve mental or

physical pain and suffering, inconvenience, the loss of intellectual gratification or

physical enjoyment, or other losses of life or lifestyle which can not be definitively

measured in monetary terms.” Id. at 672. Similarly, in McBride v. State Farm

17

Mutual Auto Insurance Co., 01-954 (La.App. 5 Cir. 3/26/02), 815 So.2d 249, writs

denied, 92-1484 (La. 9/24/02), 825 So.2d 1182; 02-1639 (La. 9/24/02), 825 So.2d

1183, the fifth circuit upheld a damages award of $75,000.00 to a victim in a car

accident who, in addition to serious internal injuries, suffered disfigurement and

permanent scars on his face. Finally, in Neason v. Transit Management of Southeast

Louisiana, Inc., 00-1271, p. 6 (La.App. 4 Cir. 4/18/01), 789 So.2d 31, 35, the fourth

circuit awarded an eight year old child $20,000.00 in general damages for “permanent

prominent facial scars” caused in an accident.

Although Ms. Detraz bears serious cosmetic effects from the infection she

contracted at Virgin Nails, she has suffered no lasting medical effects from the

infection. We feel general damages award of $50,000.00 is reasonable and adequate.

IV.

CONCLUSION

For the above reasons, the trial court’s verdict is reversed. We award

$50,000.00 in general damages and $79,380.00 for the cost of future surgeries. Costs

of appeal are assessed to appellee Virgin Nails.

REVERSED AND RENDERED.

18

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

04-988

MICHELLE DETRAZ

VERSUS

VICTOR LEE d/b/a/ VIRGIN NAILS

GENOVESE, J., dissenting.

I find no manifest error in the jury verdict and must respectfully disagree with

the majority as to the issue of causation.

The jury’s findings in this case are reasonable in light of the review of the

record in its entirety. Though there are two permissible views of the evidence, the

jury’s choice between them cannot be considered manifestly erroneous or clearly

wrong, nor is this court allowed to simply substitute its view for that of the jury.

Though the jury found negligence in this case, it did not find legal causation, nor did

Dr. Stewart or Dr. Daigle, the only two dermatologists who testified at trial. The

majority in this case reverses a jury verdict based on the testimony of a plastic

surgeon who never saw, nor treated Plaintiff’s infection, who is not a dermatologist,

and who did not even examine the Plaintiff until approximately seven months post

infection. I respectfully dissent and would affirm the jury verdict.