Elridge Menard and Pauline Menard v. Federated Mutual Insurance Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-85

ELRIDGE MENARD AND PAULINE MENARD

VERSUS

FEDERATED MUTUAL INSURANCE CO., ET AL.

**********
APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 02-65001
HONORABLE JAN MARIE TURK, DISTRICT JUDGE

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

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and J.
David Painter, Judges.

REVERSED AND RENDERED.

Barney R. Aucoin
P. O. Box 2342
Lafayette, LA 70502-2342
Telephone: (337) 237-3971
COUNSEL FOR:
Intervenor Appellee - Louisiana Farm Bureau Casualty Ins. Co.

Steven Claude Judice
Keogh, Cox & Wilson, Ltd.
P. O. Box 1151
Baton Rouge, LA 70821
Telephone: (225) 383-3796
COUNSEL FOR:
Defendants/Appellees - Federated Mutual Insurance Co. and Joseph Curtis
Aguillard

Donald Dale Landry
Gerald DeLaunay
Perrin, Landry, DeLaunay, Dartez & Ouellet
P. O. Box 53597
Lafayette, LA 70505
Telephone: (337) 233-5832
COUNSEL FOR:
Plaintiffs/Appellants - Elridge Menard and Pauline Menard

THIBODEAUX, Chief Judge.

In this car accident case, Elridge and Pauline Menard appeal an adverse

judgment pursuant to a jury verdict apportioning fault equally between Mr. Menard

and the driver of the following vehicle who hit their car. They also appeal the jury’s

decision not to award any damages. Because we find that the tortfeasor, Joseph

Aguillard, did not overcome the statutory presumption that the driver of the following

vehicle is liable for such a collision, we hold him completely responsible for the

accident. Additionally, Mr. and Mrs. Menard produced sufficient evidence showing

that although the accident did not cause any new injuries, it aggravated pre-existing

injuries. A tortfeasor is responsible for injuries caused by his negligence, even if the

extent of the injury is an aggravation of a pre-existing injury or condition. Thus, the

Menards are entitled to an award of damages and their past medical expenses. We

award $50,000.00 in general damages and $42,476.95 in past medical expenses to Mr.

Menard and $40,000.00 in general damages and $42,061.06 in past medical expenses

to Mrs. Menard. We decline to award future medical expenses as these were too

speculative in nature and because the accident aggravated pre-existing injuries and

did not cause new injuries.

I.

ISSUE

We must determine whether the jury erred when it apportioned fault for

the car accident equally to both Mr. Menard and Mr. Aguillard. We must also

consider whether the jury abused its discretion when it declined to award any

damages at all for aggravation of the Menards’ pre-existing injuries.

1

II.

FACTS

On April 17, 2001, Elridge Menard drove his wife, Pauline Menard, to

the gym. As he waited to make a left turn into the parking lot, he was rear-ended by

a van driven by Joseph Aguillard. Mr. Menard later testified that he waited about

seven minutes before leaving the car after the accident. Mr. Aguillard, however,

testified that Mr. Menard got out of his car right away and began taking photographs

of the damage. Mr. Menard also stated that he immediately felt dizzy after the

accident. He was taken to the hospital by ambulance. The EMT who attended to Mr.

Menard testified that the hospital instructed him to start an IV because Mr. Menard’s

blood pressure was elevated.

A jury found that negligence on the part of both Mr. Menard and Mr.

Aguillard caused the accident, and thus apportioned fifty percent fault to each. The

jury also found that neither Mr. nor Mrs. Menard sustained any damages in the

accident. The Menards now appeal the jury’s verdict, arguing that Mr. Aguillard

should be responsible for one hundred percent of the fault, and also that they are

entitled to damages for their pain and injuries resulting from the accident.

III.

LAW AND DISCUSSION

Liability of Mr. Menard and Mr. Aguillard

Mr. Menard testified that both his turn signal and brake lights were

working. He said he was stopped for approximately three to four minutes while

waiting to make the left turn into the gym parking lot. In his deposition of July 2002,

however, he stated he had been waiting for only twenty-five to thirty seconds before

2

impact. When confronted with this contradiction at trial, Mr. Menard stated that both

estimations were only approximate times, but he reiterated that he was at a full stop.

Mr. Aguillard testified that, as he was driving behind Mr. Menard, he

heard a rattling sound in his car and looked down to see what it was. He admitted he

looked away from the roadway for “a couple of seconds.” He admitted that before

he looked down, he saw brake lights on Mr. Menard’s car, but did not recall that Mr.

Menard’s turn signal was on. He could not say whether, upon looking back at the

road, Mr. Menard’s turn signal was on, nor could he say whether the car was at a

complete stop, although he again acknowledged seeing brake lights.

Officer Kirkwood, who arrived at the accident scene, testified that the

weather was clear that day. According to his report, Mr. Aguillard told Officer

Kirkwood that Mr. Menard’s car had come to a sudden stop, so that it was too late to

avoid impact once Mr. Aguillard looked back at the road. Mr. Aguillard also told

Officer Kirkwood that Mr. Menard’s car did not have a left turn signal on. Officer

Kirkwood inspected both cars, but he did not check to see if the signal lights or brake

lights were working on the Menard car. Although he did not issue any citations to

either Mr. Menard or Mr. Aguillard, Officer Kirkwood’s report concluded that the

primary cause of the accident was careless operation by Mr. Aguillard.

Louisiana Revised Statutes 32:81(A) requires that “[t]he driver of a

motor vehicle shall not follow another vehicle more closely than is reasonable and

prudent, having due regard for the speed of such vehicle and the traffic upon and the

condition of the highway.” Thus, a following motorist involved in a rear-end

collision is presumed to have breached this statutory duty. Mart v. Hill, 505 So.2d

1120 (La.1987). A following motorist may, however, rebut the presumption by

demonstrating that he or she had his car under control, closely observed the preceding

vehicle, and followed at a safe distance under the circumstances, or by proving that
3

the driver of the lead car negligently created a hazard which the following motorist

could not reasonably avoid. McCullin v. U.S. Agencies Cas. Ins. Co., 34,661

(La.App. 2 Cir. 5/9/01), 786 So.2d 269. The following motorist bears the burden of

showing he was not negligent. Wheelis v. CGU Ins., 35,230 (La.App. 2 Cir. 12/7/01),

803 So.2d 365.

The allocation of fault is a factual determination subject to the manifest

error rule. Spiller v. Ekberg, 00-130 (La.App. 5 Cir. 5/17/00), 762 So.2d 226. Where

there is conflicting testimony, reasonable evaluations of credibility and fact will not

be disturbed on review, even though the appellate court believes its own assessments

are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989). The appellate court

must determine not whether the factfinder was right or wrong, but whether its

conclusion was reasonable. Stobart v. State, through DOTD, 617 So.2d 880

(La.1993). When two equally rational views of the evidence exist, the factfinder’s

choice of one cannot be manifestly erroneous or clearly wrong. Id.

In this case, however, Mr. Aguillard admitted he turned his attention

away from the roadway, however briefly. He also admitted he saw at least Mr.

Menard’s brake lights before he looked away, although there was some dispute as to

whether the left turn signal was on. Furthermore, Mr. Menard had been waiting to

make the left turn for at least twenty-five to thirty seconds, by his more conservative

estimate, before the collision. There was no evidence of any obstructions in the

roadway, and the weather was clear. Although Officer Kirkwood did not inspect Mr.

Menard’s lights or turn signals, he did not issue citations to either Mr. Menard or Mr.

Aguillard. Officer Kirkwood concluded that Mr. Aguillard’s inattention caused the

accident. Mr. Aguillard failed in his burden to show he was not negligent and thereby

rebut the presumption of liability. Because he did not sufficiently refute the

4

presumption, it is unreasonable to consider him anything other than one hundred

percent liable for the accident.

Damages

Pauline Menard consulted five doctors over the course of her treatment

after the April 2001 accident. She first saw Dr. John Budden on April 23, after the

car accident, and again on May 18. She complained of severe neck and back pain.

She admitted she had back surgery four years earlier to treat a ruptured disc related

to a car accident, and that this injury had always caused her pain, but that after the

April 2001 accident, her pain was present continuously, and as severe as a nine on a

scale of ten. She also admitted she had been in an accident only a few months earlier,

in January 2001, and that that accident aggravated her back. However, Mrs. Menard

stated that she had been improving since the January 2001 accident, until the April

2001 accident. Dr. Budden did not assign a disability rating, nor did he discuss

limitations on activities. In his opinion, Mrs. Menard was not a candidate for surgery,

but he did prescribe pain medication and advised her to continue physical therapy.

Her physical exam was objectively normal, and showed normal range of motion and

no signs of muscle spasms, but her X-rays revealed degenerative changes in her

lumbar spine. While Dr. Budden believed the degenerative changes revealed in the

X-rays were present before the April 2001 accident, he concluded the accident

aggravated these pre-existing problems.

Dr. John Watermeier first saw Mrs. Menard on June 27, 2001. She

complained of moderate to severe lower back pain and also right knee pain. She

admitted her prior back surgery, saying it was related to an accident at work. She did

not, however, report prior car accidents. In January 2002, Dr. Watermeier performed

knee surgery on Mrs. Menard, and found moderate to severe deterioration of the knee.

5

He explained that while this defect is usually due to the normal aging process, trauma

to the knee can aggravate such a condition and cause defects. He concluded that the

defect in Mrs. Menard’s knee was a pre-existing condition aggravated by the April

2001 accident. Her knee stabilized and improved after surgery.

X-rays of Mrs. Menard’s back were taken in February 2002, and showed

some degenerative changes at the L4-L5 level of her back. Although he was not able

to compare the February 2002 X-rays with previous X-rays, Dr. Watermeier believed

the degenerative changes pre-dated the April 2001 accident. He concluded, however,

that the April 2001 accident had aggravated this prior condition. Dr. Watermeier also

compared an MRI of Mrs. Menard’s lumbar spine from September of 2001 with MRIs

of the same area from May 1998 and March 1997. He noted that while the September

2001 MRI report indicates degeneration of her spine at several levels in her lower

back, both previous MRIs showed the same condition. He again concluded that the

April 2001 accident aggravated Mrs. Menard’s prior degenerative condition.

Although Dr. Watermeier suggested surgery to treat her lower back pain, he also

believed she was doing well with conservative treatment, which included injections

of a local pain reliever.

Dr. Joseph Gillespie first saw Mrs. Menard on November 19, 2003. She

complained of lower back pain, tenderness, and pain, numbness, and tingling in her

legs. She indicated a history of lower back problems and had had surgery at the L4-5

level. She did not specify other car accidents, but said she had once fallen and injured

herself at work. Dr. Gillespie examined her and observed a significant surgical scar

on her lower back. He noted that scar pain, particularly in people with subsequent

trauma such as a car accident, can result in lower back and leg pain. However,

injections to the scar did not improve her pain. Dr. Gillespie concluded she suffered

from post-surgical back pain and degenerative disc disease exacerbated by the April
6

2001 car accident. He believed, however, that she was functioning well, and that her

pain could be controlled with medications and certain epidural injections.

Dr. Bryan LeBean first saw Mrs. Menard in January 2003. Her chief

complaints were lower back pain and right knee pain. She told him she had had lower

back surgery in 1997, but did not tell him about any car accidents other than the April

2001 accident.

Dr. LeBean examined her and found that her back and her right knee

were both severely tender, and that she suffered from decreased range of motion in

her knee. She complained of lower back pain of an eight on a scale of ten and knee

pain of three on a scale of ten. He diagnosed Mrs. Menard as having prior lumbar

disc herniation aggravated by the April 2001 accident. Dr. LeBean specifically

related the aggravation to the accident, even though the original condition pre-dated

the accident.

Elridge Menard consulted five doctors in relation to his treatment for the

April 2001 accident. He admitted to Dr. Budden he had been previously injured in

car accidents in 1987, 1999, and January 2001. Although he told Dr. Budden his

neck had completely recovered from that accident, he was still experiencing lower

back pain from the January 2001 accident, which he described as having increased

in severity after the April 2001 accident. Dr. Budden’s objective findings during his

physical examination of Mr. Menard were relatively normal. He did note that some

of Mr. Menard’s extremities were slightly less responsive than normal, but that could

be attributable to Mr. Menard’s diabetes. X-rays taken on the date of the accident

were negative, and Dr. Budden did not order any MRIs or any further X-rays. Dr.

Budden concluded Mr. Menard had sustained cervical and lumbar strains. He did not

recommend surgery, but did prescribe some medication and physical therapy, which

appeared to decrease Mr. Menard’s back pain slightly. The physical therapy report
7

of May 22, 2001 noted that Mr. Menard appeared to be very functional and did not

show any significant signs of distress. Dr. Budden did not assign a disability rating.

When asked whether he believed Mr. Menard was malingering or

exaggerating his symptoms, Dr. Budden admitted that while his subjective complaints

were quite severe, his objective findings were absent. However, he noted that this

disparity between subjective complaints and objective findings was not unusual in

cases of lumbar strain. Finally, Dr. Budden noted that his focus in treating Mr.

Menard was his neck and back pain, and not his hypertension.

Mr. Menard’s main complaints to Dr. Watermeier were mild to moderate

lower back pain, mild neck pain, and pain in his left shoulder. He admitted to prior

accidents and injuries in 1997, 1999, and 2000, but did not disclose the January 2001

accident. Dr. Watermeier described his objective findings as relatively benign, noting

that Mr. Menard had some full range of motion in his lower back and shoulders, but

mild limitation and pain in his neck. His X-rays were normal. Dr. Watermeier

suspected Mr. Menard had suffered a herniated disc in his lower back as a result of

one of his prior accidents, and concluded that he had sustained an aggravation to a

pre-existing herniated disc and possibly a new injury based on his symptoms in his

lower back, neck, and left shoulder.

An MRI of Mr. Menard’s lumbar spine in August 2001 indicated a

herniated disc at L4-5 and bulging discs at L3-4 and L5-S1. An MRI of his cervical

spine in September 2001 showed a herniated disc at C6-7. Dr. Watermeier was able

to compare an MRI of the lumbar spine from February 2000 with the post-April 2001

MRIs, and found that the 2000 MRI report described findings very similar to the

subsequent MRI. He concluded that Mr. Menard sustained an aggravation to a pre-

existing condition to the lumbar spine, without any evidence of new injury. An MRI

of his left shoulder revealed a fracture, but Dr. Watermeier concluded this was an old,
8

chronic defect, present long before the April 2001 accident. He believed, however,

that there was an aggravation to this pre-existing condition in Mr. Menard’s left

shoulder.

Over the course of Mr. Menard’s next visits, from September 2001 to

November 2002, Dr. Watermeier recommended epidurals to relieve the pain from the

herniated disc in the lumbar spine and surgery to treat his neck pain. Mr. Menard

declined both procedures, opting instead for medication and periodic injections of

pain medication. He also declined surgery for his shoulder. The surgeries could cost

up to $50,000.00. Dr. Watermeier described the surgeries as elective, and noted that

the conservative treatment, while not curative, has been palliative. He did not place

any limitations or restrictions on Mr. Menard, as far as work or daily activities, nor

did he assign a disability rating to him.

Like Dr. Budden, Dr. Watermeier believed that although Mr. Menard’s

injuries were not themselves related to the April 2001 accident, that accident

aggravated his pre-existing conditions, specifically his lumbar disc herniation and his

shoulder. Dr. Watermeier also admitted to inconsistencies between his objective

findings and Mr. Menard’s subjective complaints, but noted this was not unusual, and

also stated it was possible to have a problem that did not manifest itself in a physical

exam.

Dr. Gillespie first saw Mr. Menard in November 2003. His chief

complaints were headache, neck, and back pain. Although he did not mention the

January 2001 accident, Mr. Menard did admit he had been involved in prior car

accidents, which had resulted in neck and back pain that remained occasional. Dr.

Gillespie performed a physical exam and found mild tenderness in Mr. Menard’s neck

and back, but otherwise Mr. Menard seemed normal and not in any significant

distress. Dr. Gillespie reviewed findings from the August 2001 MRI of Mr. Menard’s
9

lumbar spine, and found evidence of herniation and bulging at L4 and L5-S1. The

September 2001 MRI of the cervical spine revealed a herniation at C6-7, but Dr.

Gillespie concluded that these changes were not significant. The MRI of Mr.

Menard’s left shoulder showed some degenerative changes, but these indicated a

chronic, rather than a new, defect. Overall, Dr. Gillespie felt that Mr. Menard had

chronic, pre-existing problems with pain that were exacerbated by the April 2001

accident. He prescribed pain injections, but Mr. Menard chose not to receive them,

opting instead for medication. Dr. Gillespie also stated that the presence of

degenerative changes in Mr. Menard’s neck and back would preclude heavy duty

labor.

Dr. Gillespie also discussed Mr. Menard’s hypertension, noting that Mr.

Menard had some history of mild or borderline hypertension, and had taken

medication for this condition in the past. He noted that a variety of factors can

contribute to hypertension, including diabetes. Dr. Gillespie, however, did not

believe that a stressful event could produce chronic hypertension. Chronic pain,

however, could exacerbate hypertension. Dr. Gillespie also discussed Mr. Menard’s

erectile dysfunction (ED), noting that it was unlikely ED would result directly from

any of his injuries since it would require a fairly significant trauma to produce such

a result. He named hypertension, hypertensive medications, and diabetes as

alternative causes of ED. Dr. Gillespie admitted, however, that he would defer on

these matters to the opinion of a doctor who specialized in internal medicine, and

would have more expertise on conditions such as hypertension.

Finally, Dr. LeBean, who has treated Mr. Menard since 1999, testified.

Mr. Menard’s main complaints during their visit in May 2001 included neck pain,

shoulder pain, low back pain, and tension headaches. Dr. LeBean discovered severe

tenderness in his neck and lower back, and moderate tenderness and decreased range
10

of motion in his left shoulder. In addition, his blood pressure was elevated. Dr.

LeBean was aware that Mr. Menard had prior problems with his lower back and neck.

In fact, based on reports from other doctors, Dr. LeBean stated that Mr. Menard had

been diagnosed in 1997 with a bulging disc on L5-S1. Therefore, he had lumbar disc

herniation which pre-dated the April 2001 accident. However, Dr. LeBean agreed

that that accident aggravated his back problem, exacerbating symptoms of pain. Dr.

LeBean believed the shoulder pain was secondary to the cervical disc herniation. Dr.

LeBean was concerned there could be further damage, and advised Mr. Menard not

to return to work, with the exception of one period in which his condition improved

slightly. Mr. Menard’s symptoms of pain and Dr. LeBean’s treatment and impression

of cervical and lumbar strain remained consistent during all of his visits, through his

most recent visit in March 2004.

Dr. LeBean believed that, more probably than not, the treatment and

medications he administered to Mr. Menard were related to the April 2001 accident.

Even when specifically told of the January 2001 accident, Dr. LeBean still related Mr.

Menard’s complaints to the April 2001 accident, and did not consider the January

accident significant to his assessment of Mr. Menard. Additionally, Dr. LeBean

stated that although Mr. Menard had been diagnosed with lumbar herniation before

the accident, the April accident aggravated his pre-existing condition. Dr. LeBean

stated that an MRI of the cervical spine in February 2000 was completely negative,

so that a diagnosis of cervical disc herniation was a new event that occurred sometime

after that MRI.

Dr. LeBean stated that Mr. Menard would not improve further with only

conservative treatment, and would suffer from a chronic pain in his neck and

shoulder, and lower back. However, Dr. LeBean believed Mr. Menard’s preference

11

for more conservative treatment, opting for medication rather than surgery, was

reasonable given the risks and expense of surgery.

In contrast to Dr. Gillespie’s opinion, Dr. LeBean stated that Mr.

Menard’s hypertension was related to the April 2001 accident, stating that patients

sometimes can have that reaction. Dr. Gillespie prescribed blood pressure

medication, and stated that Mr. Menard’s ED may be a side effect of that medication.

In particular, Mr. Menard’s complaints regarding ED began after he started that

particular medication. Dr. Gillespie prescribed Viagra. In his deposition, Dr.

Gillespie stated he believed the necessity of prescribing Viagra was related to the

April 2001 accident, because the accident triggered Mr. Menard’s high blood pressure

condition, requiring medication which stabilized his high blood pressure, but induced

ED.

Dr. Budden was the only doctor who treated Mrs. Menard who was

aware of her accident during January 2001, and admitted her physical abnormalities

pre-dated the April 2001 accident, but nevertheless concluded they had been

aggravated during that event. Dr. Watermeier concluded that the April 2001 accident

was responsible for aggravating her knee condition to an extent that necessitated

surgery to diagnose and correct the condition. He also concluded that her back pain

was a result of degenerative defects present prior to the April 2001 accident, but was

aggravated by that event. Dr. Watermeier was not aware of her January 2001

accident, but he believed there was objective evidence to support her subjective

complaints of pain. Dr. Gillespie was not aware of other car accidents, specifically

of the January 2001 accident, and admitted he had no knowledge of whether epidurals

would be medically necessary before April 2001. He agreed, however, that the April

2001 accident exacerbated her back condition. Dr. LeBean specifically related her

back pain to the accident. None of the doctors changed their view that the April 2001
12

accident exacerbated Mrs. Menard’s back pain, requiring pain medication.

Additionally, it is clear that the accident aggravated Mrs. Menard’s pre-existing knee

condition to such an extent that it required surgery to treat.

None of the doctors who treated Mr. Menard thought he was

malingering. Drs. Budden and Watermeier stated that inconsistencies between

objective findings and subjective complaints were not dispositive of the true physical

state of the patient. All of the doctors agreed that Mr. Menard’s back and neck pain

were pre-existing conditions exacerbated by the April 2001 accident. Even Dr.

Budden, who was aware specifically of the January 2001 accident, reached this

conclusion. Although Dr. Gillespie did not believe a single incident, such as a car

accident, could push a borderline hypertensive patient into true high blood pressure,

he agreed to defer to the opinion of a doctor who specialized in such issues. Dr.

LeBean stated Mr. Menard’s hypertension was a result of the stress of the April 2001

accident. As a result of medication taken to treat his hypertension, Mr. Menard

developed ED.

Mrs. Menard stated that she was unable to do things she had once

enjoyed, such as going dancing with her husband. She also stated that her daughter

must do the housework, under her guidance. She has been dependent on pain

medication and has had difficulty sleeping. Mr. Menard noted that he was unable to

ride horses. He also has been unable to perform the full range of his duties as a

private investigator, and his income has suffered as a result. In addition to

unremitting pain from his physical condition, he has been forced to endure the effects

of ED.

In general, an appellate court must review an award of damages for an

abuse of discretion. The appellate court may only raise or lower the award to the

nearest reasonable amount. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1997).
13

However, the Coco standard does not apply when the jury has made no award at all.

Bonin v. Ferrellgas, Inc., 02-1031 (La.App. 3 Cir. 8/6/03), 855 So.2d 781. In such

a circumstance, “the appellate court should make a res nova determination of the

appropriate total amount of damages to be awarded to the plaintiff for the injuries

sustained.” Leal v. Dubois, 99-957, p. 10 (La.App. 3 Cir. 4/5/00), 756 So.2d 684,

691, citing Mart v. Hill, 505 So.2d 1120. Thus, because the jury made no

compensation for the injuries suffered by Mr. and Mrs. Menard as a result of the

accident, we are permitted to do so. A tortfeasor “is responsible in damages for

consequences of his tort even if damages so caused are greater because of prior

condition of victim which is aggravated by the tort.” Burnaman v. Risk Mgmt., Inc.,

97-250 (La.App. 3 Cir. 6/18/97), 698 So.2d 17, writ denied, 97-1832 (La. 10/31/97),

703 So.2d 23. Thus, the presence of pre-existing injuries or degenerative conditions

in Mr. and Mrs. Menard’s medical history does not preclude responsibility for any

aggravation or exacerbation of those injuries as a result of the April 2001 accident.

Defendants attempted to cast doubt on the causal link between the April

2001 accident and the subsequent injuries and pain by suggesting that an accident in

January 2001 could be responsible for those injuries. However, in Lancon v. State

Farm Mut. Ins. Co., 94-256 (La.App. 3 Cir. 10/5/94), 645 So.2d 692, writ denied, 95-

153 (La. 3/17/95), 651 So.2d 272, the third circuit reviewed a case in which the

defendant in a car accident lawsuit took the position that an accident between the

injured plaintiff and a third party five weeks after the accident between the plaintiff

and the defendant was actually responsible for aggravation of plaintiff’s pre-existing

condition. The court stated that the defendant had the burden of proving that the

second accident was responsible for the injuries, but did not meet this burden. The

defendants argued that none of the plaintiff’s doctors could testify with medical

certainty that it was the first accident, and not the second, which aggravated her
14

condition. The court stated, however, that merely raising the possibility is

insufficient to prove an intervening cause, which must instead be proven by a

preponderance of the evidence.” Id., citing Turner v. Nationwide Ins. Co., 503 So.2d

734 (La.App. 3d Cir. 1987).

In this case, merely raising the fact of the January 2001 accident is

insufficient to deflect causation and consequent responsibility for damages. While

the doctors who testified acknowledged a complete medical history, including past

trauma or injuries, was beneficial to diagnosis and treatment, none of the doctors

changed their testimony. In fact, Dr. LeBean specifically did not believe the January

2001 accident was relevant to his diagnosis. All of the doctors believed the April

2001 accident aggravated the Menards’ pre-exisiting conditions. The defendants did

not offer any contradictory medical opinions or evidence. While they point out that

Dr. Jarrott predicted the January 2001 accident would aggravate injuries they had

suffered in the past, this does not shift causation away from the April 2001 accident.

Mr. Menard’s medical bills totaled $42,476.95; Mrs. Menard’s totaled

$42,061.06. General damages cannot be fixed with purely objective certainty.

Wainright v. Fontenot, 00-492 (La. 10/17/00), 774 So.2d 70. They “involved mental

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

physical enjoyment, or other losses of life or life-style which cannot be definitely

measured in monetary terms.” Duncan v. Kansas City, 00-66 (La.10/30/00), 773

So.2d 670, cited in LeBleu v. Safeway Ins. Co., 01-1637 (La.App. 3 Cir. 5/22/02), 824

So.2d 422). Together, the Menards made over thirty visits to four different doctors.

Mrs. Menard endured a painful knee surgery, and was no longer able to go dancing

with her husband. She was forced to rely on her daughter to help with housework.

Mr. Menard endured consistently severe pain, and was forced to give up horseback

riding. In addition, he suffered from the side effects of his hypertension medication.
15

He also has been unable to perform the full extent of his duties as a private

investigator. Thus, in addition to awarding them these past sums in medical

expenses, we award $50,000.00 to Mr. Menard and $40,000.00 to Mrs. Menard in

general damages.

IV.

CONCLUSION

For the above reasons, the jury verdict is reversed and judgment as

provided above is rendered on behalf of Elridge and Pauline Menard. Costs of appeal

are assessed to Federated Mutual Insurance Company.

REVERSED AND RENDERED.

16