Adele Gradnigo, Et Ux. v. Louisiana Farm Bureau Casualty Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1198

ADELE GRADNIGO, ET UX.

VERSUS

LOUISIANA FARM BUREAU CASUALTY INS. CO., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20050340
HONORABLE J. BYRON HEBERT, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and
Michael G. Sullivan, Judges.

AFFIRMED AS AMENDED.

Edward O. Taulbee, IV
Taulbee & Associates, L.L.C.
P. O. Box 2038
Lafayette, LA 70502-2038
Telephone: (337) 269-5005
COUNSEL FOR:
Defendants/Appellees - Louisiana Farm Bureau Casualty Ins. Co.
and Hannah Venable

Archie P. Joseph
P. O. Box 1283
Breaux Bridge, LA 70517
Telephone: (337) 332-5287
COUNSEL FOR:
Plaintiffs/Appellants - Adele Gradnigo and Gerald Gradnigo

Christ Beaner
P. O. Box 93814
Lafayette, LA 70509
Telephone: (337) 303-4333
COUNSEL FOR:
Plaintiffs/Appellants - Adele Gradnigo and Gerald Gradnigo

THIBODEAUX, Chief Judge.

Plaintiffs-appellants, Adele Gradnigo (Gradnigo) and her spouse, Gerald

Gradnigo (Gerald), appeal the quantum of the damage awards rendered by a jury after

the trial of her personal injury action for damages sustained in a motor vehicle

accident. Defendants, Hannah Venable (Venable), and her automobile insurer,

Louisiana Farm Bureau Insurance Company (Louisiana Farm Bureau), have answered

the appeal, asserting the trial court abused its discretion by taxing them with the

payment of Gradnigo’s expert witness costs, when Gradnigo was unsuccessful on the

particular claims related to the testimony offered by those witnesses.

We find the jury abused its discretion in quantifying damages for past

medical expenses and past and future loss of enjoyment of life. Therefore, the jury’s

award of $10,000.00 in past medical expenses is reversed, and an award of

$14,526.55 for past medical expenses incurred is rendered in accordance with the

evidence established at trial. The plaintiff is awarded $10,000.00 for past and future

loss of enjoyment of life. All other aspects of the jury’s damage awards are affirmed.

Further, we affirm the trial court’s assessment to the defendants of the

expert witness costs for orthopedic surgeon, Dr. John Cobb, vocational rehabilitation

counselor, Scott Smith, and economist, Dr. Douglas Womack.

I.

ISSUES

1. Did the jury abuse its discretion by awarding
Gradnigo $30,000.00 in general damages for past
and future pain and suffering for the injuries she
alleged were caused by the motor vehicle accident:
headaches, right shoulder and neck strain, three
herniated thoracic spine discs, and one bulging
lumbar spine disc?

2. Did Gradnigo establish that she incurred
compensable past medical expenses in the amount of

$14,526.55, thus requiring the reversal of the jury’s
award of $10,000.00 for past medical expenses?

3. Did the jury err in awarding only $15,000.00 for
future medical expenses when evidence was
presented by Gradnigo’s treating orthopedist of his
recommendation for spinal surgery and future
medical treatment at an estimated cost of
$107,000.00?

4. Did the evidence establish that Gradnigo’s injuries
from the accident caused her to incur past lost wages
in the amount of $23,823.16, as calculated by her
expert economist, rather than the $1,200.00 awarded
to her by the jury?

5. Did Gradnigo establish at trial that the accident
caused her a loss of future earning capacity ranging
between $560,828.00 and $781,075.00, requiring a
reversal of the jury’s award of $0 in damages for this
category of loss?

6. Did the jury abuse its discretion by awarding $0 in
damages to Gradnigo for her past and future loss of
enjoyment of life?

7. Did the jury abuse its discretion in awarding $0 in
damages to Gradnigo’s husband, Gerald Gradnigo,
for the loss of consortium he allegedly experienced
as a consequence of his wife’s accident-related
injuries?

8. Did the trial court abuse its discretion by assessing
Venable and Farm Bureau with the payment of the
plaintiff’s expert witness fees for orthopedic
surgeon, Dr. John Cobb, vocational rehabilitation
counselor, Scott Smith, and economist, Dr. Douglas
Womack, when the jury rejected the plaintiffs’
claims for future medical expenses and certain past
and future lost wages?

II.

FACTUAL BACKGROUND

On January 21, 2004, Gradnigo was driving to work when her vehicle

was struck on the right rear passenger side as she drove through an intersection in

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Lafayette, Louisiana. Venable had been traveling on a road perpendicular to the one

being traveled by Gradnigo. Upon approaching the intersection of those roads,

Venable failed to yield to a red traffic light and struck Gradnigo’s vehicle.

Gradnigo’s vehicle was spun around approximately 180 degrees as a

result of the impact. Both vehicles were able to be driven away from the scene, and

the damage to Gradnigo’s vehicle was minor to moderate. Gradnigo’s air bags did

not deploy during the accident, and she declined medical assistance at the scene.

Gradnigo left the accident scene and drove herself to work at Lafayette General

Medical Center (LGMC), where she was employed as a licensed practical nurse

(LPN).

Gradnigo alleges she left work early that day and did not report to work

the following day, due to a headache that began shortly after the accident occurred.

Gradnigo began medical treatment with internal medicine physician, Dr. Bryan

LeBean, about two weeks after the accident occurred. She sought relief from pain

which Dr. LeBean diagnosed initially as cervical strain, thoracic strain, right shoulder

strain, and tension headaches. Ultimately, it was determined that Gradnigo suffered

from three bulging thoracic spine discs and one bulging lumbar disc.

She endured a course of conservative medical treatment under the

supervision of Dr. LeBean and orthopedic surgeon, Dr. John Cobb, which included

months of physical therapy, and, ultimately, treatment by pain management specialist,

Dr. Stephen Staires. Reporting that she was able to manage her pain and that her

symptoms of neck and shoulder pain had essentially abated, she ended her treatment

with these doctors in February 2006, approximately two years after the date of the

accident. While she was being treated by her doctors, she continued to work as a

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float nurse at LGMC and only missed seven days of work there. Her employment

records indicated exemplary performance of her job during this time period.

Gradnigo went unobserved by doctors until approximately eighteen

months later in June 2007, at which time she resumed treatment with Dr. Cobb,

complaining of an increase in mid-back and low-back pain. He reinstituted some of

his prior methods of treatment—physical therapy, pain medication, and muscle

relaxants—and he began having Gradnigo use a TENS unit (a device that is worn to

help stimulate pain relief). Dr. Cobb reiterated to Gradnigo that ultimately a

laminectomy, discectomy, and fusion may be required if conservative treatment failed

to fully resolve her symptoms. He had provided this advice to her in 2005, in

response to Gradnigo’s complaints that the conservative treatments were only

temporarily alleviating her symptoms.

During the trial, Gradnigo’s Motion for a Directed Verdict on liability

was granted after evidence was produced that Venable caused the accident. The

jury’s findings and awards as to damages, which were subsequently rendered by the

trial court in its Judgment, were as follows:

1. Did ADELE GRADNIGO suffer any damages as a
result of the accident on January 21, 2004?

x Yes ________ No

(If YES, proceed to Question 2. If NO, please sign
the bottom of the form and return it to the bailiff.)

2. What amount, in dollars and cents, if any, will fairly
compensate ADELE GRADNIGO for the following:

Pain and Suffering (past and future) $ 30,000

Loss of enjoyment of life (past and future) $ 0.00

Past medical expenses $ 10,000

Future medical expenses $ 15,000

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Los[t] Wages $ 1,200

Loss of future earning capacity $ 0.00

3. Did Gerald Gradnigo suffer any damages as a result
of the accident?

_________Yes x No

Gradnigo’s appeal asserts that the jury abused its discretion in

quantifying the amount of many of the awards rendered. Regarding general damages,

she seeks an increase in the $30,000.00 awarded to her for past and future pain and

suffering to an amount of $175,000.00 or greater. She contends that the jury abused

its discretion as well by failing to award any damages for her loss of enjoyment of

life, as well as for her husband’s loss of consortium. The appeal seeks $40,000.00 for

past and future loss of enjoyment of life and $20,000.00 to Gradnigo’s spouse for his

alleged loss of her services, sex, society, and support following the accident.

Gradnigo contends that the jury erred in awarding only $10,000.00 in

past medical expenses because the medical records introduced into evidence, without

objection, revealed that she incurred medical expenses in the amount of $14,526.55.

Moreover, she contends that the jury’s award of only $15,000.00 for future medical

expenses is abusively low, when she presented evidence substantiating a minimum

award of $165,000.00, due to the recommendation that she undergo spinal surgery

and the estimates of post-operative care and treatment that will be needed. Gradnigo

claims an increase in the damage award for past lost wages from the $1,200.00

awarded by the jury to $23,823.16 is due, based on the calculations presented by

economist, Dr. Douglas Womack. Finally, she seeks a reversal of the jury’s award

of $0 to her for loss of future income. Gradnigo claims she is entitled to between

$560,828.00 and $781,075.00 because the accident extinguished her ability to return

to work as an LPN or to become trained and subsequently seek employment as an RN

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and has forced her to obtain a lower-paying job that requires a lower level of physical

mobility than that required of an RN or LPN in the performance of their duties.

The defendants allege that the jury made reasonable factual findings

based on the evidence presented at trial and did not abuse its discretion in

determining the awards that were rendered. They argue that Gradnigo’s credibility

was damaged throughout the trial by the presentation of evidence that showed she

was inconsistent, and less than truthful in accurately reporting her physical limitations

and levels of pain relief to her healthcare providers while under their care. Moreover,

they contend that the jury’s awards also reflect reasonable conclusions about the

following: Gradnigo was fully recovered from any accident-related injuries as of

February 2006, and she was not severely injured by the accident, as evidenced by her

ability to continue to excel at the performance of her duties as an LPN for two years

after the accident, without any accommodations.

Because of these possible reasonable findings, the defendants argue that

the jury’s awards reflect a rejection of any sought-after damages for medical expenses

incurred after the initial two-year period of treatment and for those sought for future

treatments. Additionally, they argue the jury was reasonably justified in rejecting in

entirety the claims for loss of earning capacity, loss of enjoyment of life, and loss of

consortium.

III.

LAW AND ANALYSIS

General Damages

Standard of Review

General damages are “inherently speculative” and unable to be fixed

with mathematical certainty. Wainwright v. Fontenot, 00-492, p. 6 (La. 10/17/00),

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774 So.2d 70, 74 (citation omitted). This, consequently, means that the assessment

of the appropriate amount of such damages is a question of fact to be determined on

a case-by-case basis, and because each case is different, the adequacy or inadequacy

of the award should be determined by the facts or circumstances particular to the case

under consideration. Youn v. Maritime Oversees Corp., 623 So.2d 1257 (La.1993),

cert. denied, 510 U.S. 1114, 114 S.Ct. 1059 (1994). The fact finder’s determination

is given “great deference” on appeal; therefore, the appellate court’s role is to review

that exercise of discretion. Id. Moreover, “[t]he facts submitted as evidence must be

reviewed by the appellate court in the light most favorable to the judgment rendered.”

Venissat v. St. Paul Fire & Marine Ins. Co., 06-987, p. 17 (La.App. 3 Cir. 8/15/07),

968 So.2d 1063, 1074 (citing Theriot v. Allstate Ins. Co., 625 So.2d 1337 (La.1993)).

The application of this standard has been explained by the supreme court

as follows:

In Reck [v. Stevens, 373 So.2d 498 (La.1979)], this
court disapproved the appellate court’s simply reviewing
the medical evidence and then concluding that the award
for those injuries was excessive, without taking into
consideration the particular effect of the particular injuries
on the particular plaintiff. This court further disapproved
of the use of a scale of prior awards in cases with
generically similar medical injuries to determine whether
the particular trier of fact abused its discretion in the
awards to the particular plaintiff under the facts and
circumstances peculiar to the particular case. 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

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v. Landry, 302 So.2d 278 (La.1974); Spillers v.
Montgomery Ward & Co., 294 So.2d 803 (La.1974).

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 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 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.

Youn, 623 So.2d at 1260-61.

Past and Future Pain and Suffering

Gradnigo asserts that the amount awarded for past and future pain and

suffering is abusively low and should be raised to $175,000.00. She states that the

amount is justified due to her suffering over the past four years with, initially, the

tension headaches, right shoulder strain, and neck strain, and later with the ongoing

pain caused by three herniated thoracic discs and one annular bulging lumbar disc.

Gradnigo relies almost exclusively on her history of medical treatment post-accident

and Dr. Cobb’s recommendation for surgery as a measure of proof of her pain and

suffering.

A review of her medical history reveals that on February 9, 2004,

approximately two weeks after the accident occurred, Gradnigo first sought medical

treatment for symptoms she believed were the result of injuries suffered in the

accident. She saw Dr. LeBean, an internal medicine physician. Her chief complaints

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to him were of right shoulder pain, headaches, and mid-back pain. She reported a

history of no prior major illnesses or injuries. Dr. LeBean performed a physical

examination of Gradnigo and found “positive, severe tenderness to palpation on the

right side [of the neck] with decreased range of motion.” Her back examination

revealed “positive severe tenderness to palpation in the thoracic area.” The right

shoulder examination revealed “positive severe tenderness to palpation with a

decreased range of motion.” Dr. LeBean consequently diagnosed a cervical strain,

thoracic strain, right shoulder strain, and tension headaches. He prescribed pain

medication, muscle relaxants, and a physical therapy protocol to be conducted at his

office. Dr. LeBean advised Gradnigo that she could return to work with “moderate

limitations,” which he defined at trial as “[u]sually lifting no greater than fifteen

pounds [and] no standing or walking in excess of thirty minutes or so.”

Consequently, Gradnigo continued to work with no limitations as a float nurse at

LGMC. Lifting and turning of patients was not an issue, as testimony was offered by

Gradnigo and several of her nursing co-workers that they worked as a team on such

matters.

Over the next several months, through Dr. LeBean’s office, Gradnigo

participated in the physical therapy sessions, which consisted of mostly hydrotherapy.

She continued her medications as well (pain medication and muscle relaxants) which

ultimately resulted in the resolution of her shoulder pain and, temporarily, her neck

pain. Her headaches resolved as well. However, in July 2004, because of her

continuing complaints of mid-back pain, Dr. LeBean ordered the first MRI of

Gradnigo’s thoracic spine taken. That MRI revealed small or mild disc herniations

at T5-T6, T6-T7, and T9-T10 and changes that were considered to be degenerative

in nature—“mild exaggeration of the normal thoracic kyphosis [bending of the spine

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forward]” and “multi-level osteophytes [bone spurs],” collectively referred to as

spondylosis.

Dr. LeBean referred Gradnigo to an orthopedic surgeon, Dr. John Cobb,

who evaluated her for the first time in August 2004. Dr. Cobb reviewed the MRI

results and diagnosed herniated discs at T5-10 and a lumbosacral sprain; however, he

found no evidence of nerves or nerve roots being pinched. He prescribed active

physical therapy to address the continuing pain complaints and observed the results

of that over the next few months. By November 2004, Gradnigo reported essentially

no neck pain and that her lower back pain was “doing reasonably well.” She also

reported that her mid-back or thoracic area of pain had become “manageable.”

Physical therapy under Dr. Cobb’s monthly observation continued.

In July 2005, because Gradnigo complained of a return of a “moderate”

degree of pain in the thoracic and lumbar areas and a “moderate” degree of positional

intolerance, requiring her to keep altering her positions, i.e., moving, standing, or

sitting, in order to gain relief, Dr. Cobb referred her to Dr. Stephen Staires. Dr.

Staires is an anesthesiologist who specializes in interventional pain management,

particularly with the use of injections. As of September 2005, Gradnigo reported to

Dr. Cobb that the few injections she had been given provided only limited, short-term

relief. Nevertheless, Dr. Staires did not recommend additional injections to her.

Rather, he recommended other conservative treatment such as massage therapy.

Dr. Cobb discussed re-instituting physical therapy as well around that

time and advised Gradnigo that if her pain was unacceptable, a surgical approach—a

laminectomy and disc excision and a fusion of the affected areas—would likely be

necessary to alleviate her symptoms. Surgery was not scheduled, and Gradnigo

continued treatment with Dr. Staires. By December 2005, Dr. Cobb’s impression was

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that the source of Gradnigo’s pain was likely the thoracic disc herniations and axial

instability caused by the degenerative changes in the lumbar disc, and he again

discussed surgical options with Gradnigo. She opted to not undergo surgery. In

January 2006, Gradnigo met with Dr. Cobb and reported that she was no longer under

Dr. Staires’ care, was taking a muscle relaxant, and had reached a position in which

was capable of managing her pain. No follow-up visit with Dr. Cobb was scheduled

at that time.

Dr. Cobb resumed care and observation of Gradnigo approximately one

and one-half years later, on June 4, 2007. Gradnigo complained of worsening mid-

back pain. Dr. Cobb discussed conservative and surgical options, and her care

resumed with the use of prescribed muscle relaxants, pain medication, physical

therapy, and home use of a neuromuscular stimulator, or TENS unit. Gradnigo

remained under Dr. Cobb’s care at trial time.

The defendants assert that although Gradnigo relies on her history of

medical care and pain complaints as evidence of her level of pain and suffering post-

accident, the jury’s award was not an abuse of its discretion and was based on

contrary facts presented at trial showing Gradnigo as less than credible. They assert

that Gradnigo’s injuries, or any aggravation of her pre-existing degenerative spinal

changes caused by the accident, were resolved by February 2006. Moreover, they

argue that any injuries suffered after the accident were not severe enough to alter her

lifestyle.

Her credibility was placed at issue, they argue, when she was confronted

during the trial about multiple conflicting statements she made to her various medical

providers regarding her levels of pain and mobility throughout her treatment.

Defendants also assert that it was established through the testimony of co-workers at

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LGMC who worked with Gradnigo during the two years following the accident that

she did not exhibit any physical limitations at work during that time. Her

employment file showed that she was given excellent performance ratings and

received regular merit pay increases as a result. Finally, Gradnigo missed minimal

days of work, barely more than two weeks during the two years following the

accident. She also took multiple vacations with her spouse during this time.

Considering the facts presented, we cannot find that the award of

$30,000.00 for past and future pain and suffering is abusively low.

Loss of Enjoyment of Life

“[L]oss of enjoyment of life is a compensable component of general

damages” that also involves the inherently speculative valuation of a person’s quality

of life, which cannot be definitively measured. McGee v. A C & S, Inc., 05-1036, p.

4 (La. 7/10/06), 933 So.2d 770, 774. These damages serve to compensate for the

“detrimental alterations of a person’s life or lifestyles or a person’s inability to

participate in the activities or pleasures of life that were formerly enjoyed.” Id. at

773.

Gradnigo argues that the jury’s failure to award damages for her loss of

enjoyment of life after the accident was an abuse of discretion because she presented

testimony at trial of how her back pain has restricted her from sitting, standing, or

walking for any extended period of time. This, she asserts, had caused limitations in

her ability to do housework, perform gardening and other yard work, play with her

children, attend church, visit with family and friends, attend social functions, and go

on vacation.

Only the testimony of Gradnigo and her husband was offered in support

of this claim. The defendants argue that this claim was, nevertheless, called into

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question because of the credibility issues caused by Gradnigo’s inconsistencies in

reporting her conditions to her healthcare providers, as referred to earlier in this

opinion. In addition, they argue that her ability to continue working as an LPN after

the accident and to cease treatment for more than a year, two years after the accident,

is proof of the minimal impact the accident likely had on her lifestyle. Gradnigo’s

husband’s testimony about her suffering a diminished lifestyle after the accident was

likely not given great weight either, they contend, because he was shown to have

offered untrue testimony that conflicted with testimony his wife had given.

Specifically, he testified that he and his wife had only taken one local vacation since

the accident’s occurrence, while she testified that they had taken several vacations

since the accident.

In summary, although evidence was presented at trial that Gradnigo

received treatment for injuries either caused by or aggravated by the accident, there

was also contrasting evidence presented of inconsistencies and perhaps,

untruthfulness, regarding the severity and longevity of any such conditions. The

question is whether the award for the particular circumstances on the particular

injured person is a clear abuse of the “much discretion” of the trier of fact. Youn, 623

So.2d at 1260. In other words, is this lack of an award beyond that which a

reasonable trier of fact could assess for the effects of the particular injury to this

plaintiff under these facts? We think the discretion has been abused and, as such,

raise the award to the lowest reasonable award of $10,000.00.

Loss of Consortium

“The compensable elements of damage in a claim for loss of consortium

include loss of society, sex, service, and support.” LeBlanc v. Acadian Ambulance

Serv., Inc., 99-271, p. 33 (La.App. 3 Cir. 10/13/99), 746 So.2d 665, 684 (quoting

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Mathews v. Dousay, 96-858, p. 18 (La.App. 3 Cir. 1/15/97), 689 So.2d 503, 515). A

cause of action for this claim arises when the injured party’s condition so deteriorates,

the spouse is actually deprived of consortium and society. Delphen v. DOTD, 94-

1261 (La.App. 4 Cir. 5/24/95), 657 So.2d 328, writs denied, 95-2116, 95-2124 (La.

11/17/95), 663 So.2d 717. It is asserted that the jury’s award to Gerald, Gradnigo’s

spouse, of $0 for his loss of consortium, was abusively low and should be increased

to $20,000.00 for his loss of his wife’s ability to perform household duties, and the

diminishing of their sex and social life.

Gerald claims entitlement to this award because his wife could no longer

perform certain household duties after the accident. Consequently, he and his sons

had to perform those tasks or assist her. He also stated that the couple’s sex life had

diminished, his wife was not the same after the accident, and they “basically stayed

home all the time.”

Defendants argue that the jury’s findings and determinations in this

regard were reasonable based on the fact that Gerald’s testimony regarding one aspect

of the couple’s social life was contradicted; he was shown as being untruthful about

the extent of the couple’s vacation travels after the accident. Also, they assert that it

is not unreasonable for the jury to have concluded that Gradnigo’s physical

capabilities and emotional state did not significantly change at home or in relation to

her spouse after the accident. This is based on the fact that Gradnigo’s ability to

continue nursing at such a high performance level after the accident continued.

Moreover, no other persons with personal knowledge of Gradnigo pre- or post-

accident were presented to offer testimony at trial regarding these assertions of a

negative change in her physical, emotional, or social state during this time.

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We agree with the court in Finley v. Bass, 478 So.2d 608, 614 (La.App.

2 Cir. 1985), that while “every personal injury tends to decrease the parties’ overall

happiness,” it is the plaintiff who carries the burden of proving a definite loss on each

element of damages. The plaintiff was not successful in showing such losses here.

We cannot say that the jury was clearly wrong in failing to find a loss of consortium.

Special Damages

Past and Future Medical Expenses

In this case, Gradnigo sought $14,526.55 in medical expenses; however,

the jury awarded only $10,000.00 medical expenses. Gradnigo contends that this

award is abusively low and seeks the full amount of her past medical expenses and

also seeks future medical expenses in excess of $100,000.00. The jury awarded

$15,000.00 for future medical expenses. The defendants speculate that this amount

is reasonable because it is consistent with the cost of future spinal injections from

pain management specialist, Dr. Staires. Dr. Staires’ injections were successful in

providing almost complete relief to Gradnigo during her treatment with him,

according to her testimony.

In Simon v. Lacoste, 05-550, p. 3 (La.App. 3 Cir. 12/30/05), 918 So.2d

1102, 1104-05, this court recognized the following regarding awards of medical

expenses:

[W]hen a plaintiff alleges that medical expenses were
incurred “and that allegation is supported by a bill, unless
there is sufficient contradictory evidence or reasonable
suspicion that the bill is unrelated to the accident, it is
sufficient to support the inclusion of that item in the
judgment.” [Esté v. State Farm Ins. Co., 96-99, p. 10
(La.App. 3 Cir. 7/10/96), 676 So.2d 850, 857.] A fact
finder errs if it fails to award the full amount of medical
expenses incurred as a result of the accident and proven by
a preponderance of the evidence. Revel v. Snow, 95-462

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(La.App. 3 Cir. 11/2/95), 664 So.2d 655, writ denied,
95-2820 (La. 2/2/96), 666 So.2d 1084.

Gradnigo introduced evidence of past medical expenses totaling the

amount requested that were incurred during her periods of treatment for alleged

accident-related injuries. No evidence was offered to contradict these bills or to

provide reasonable suspicion that they were incurred for an unrelated accident or

occurrence. Rather, the treatments, services, and prescriptions were corroborated and

causally connected to the accident at issue by the testimony offered by Dr. Cobb and

Dr. LeBean. Therefore, based on the uncontroverted medical evidence in the record,

we award Gradnigo her accident-related and incurred medical expenses of

$14,526.55.

This court, in Veazey v. State Farm Mutual Auto Insurance, 587 So.2d

5, 8 (La.App. 3 Cir. 1991) (citations omitted), discussed future medical expenses:

Future medical expenses, like any other damages,
must be established with some degree of certainty. The
plaintiff must show that, more probably than not, these
expenses will be incurred. Awards will not be made in the
absence of medical testimony that they are indicated and
setting out their probable cost. An award for future
medical expenses cannot be based on mere speculation of
the jury. Much stronger proof, such as medical testimony
of the specific expenses to arise, should be required for
such an award.

It is when the record establishes that future medical expenses “will be necessary and

inevitable,” that such should not be rejected. See Stiles v. K Mart Corp., 597 So.2d

1012, 1013 (La.1992). Future medical expenses are reviewed by an appeals court

pursuant to the manifest error standard of review. See Armentor v. Safeway Ins. Co.,

07-805 (La.App. 3 Cir. 12/19/07), 972 So.2d 444.

Dr. Cobb testified that surgical intervention via laminectomy,

discectomy, and fusion was a possibility for this patient, as a last resort only, and

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would be dependent upon her subjective complaints of pain. Dr. Cobb testified that

this was because his neurological examinations of her, which were subjective, all

produced normal findings during his course of treating and observing her. Dr. Cobb

provided an estimate of the cost of such a procedure in the amount of $107,596.82,

and discussed post-operative treatments and equipment that would be a part of the

recovery period for which he did not provide a cost estimate.

Based on these facts, we cannot say the jury manifestly erred or was

clearly wrong in denying the requested future medical expenses. It was not

established with certainty that such surgery would more probable than not be

inevitable and necessary for this plaintiff.

Lost Wages and Loss of Future Earning Capacity

To recover for actual wages lost, the plaintiff must be able to positively

prove that he or she would have been earning wages but for the accident at issue.

Boyette v. United Servs. Auto. Ass’n, 00-1918 (La. 4/3/01), 783 So.2d 1276. “In other

words, it is the plaintiff’s burden to prove past lost earnings and the length of time

missed from work due to the accident.” Id. at 1279 (citing ANMAC Found., Inc. v.

St. Patrick Hosp. of Lake Charles, 594 So.2d 951 (La.App. 3 Cir. 1992)).

Gradnigo alleges that she missed sixteen days of work due to illness

associated with this accident. Seven days were missed at a rate of pay of $19.80 per

hour ($1,108.80) while working for LGMC. In 2006 after leaving LGMC, she claims

to have missed nine days of work at a rate of pay of $20.38 per hour ($1,467.36), for

a total wage loss of $2,576.16. Gradnigo asserts on appeal that she was entitled to the

$2,576.16 in lost wages and an additional $21,247.00 in lost wages incurred. The

$21,247.00 is the calculation of the difference between her rate of pay as an LPN at

LGMC and her lower rate of pay at her subsequent employment, which she claims she

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was ultimately forced to take because of the light-duty work restrictions imposed by

her physicians.

The jury awarded only $1,200.00 in lost wages, clearly rejecting the

plaintiffs’ request for all asserted lost wages incurred after voluntarily terminating her

employment at LGMC in 2006. We cannot say that the jury was manifestly erroneous

in rendering this award when it was shown at trial that Gradnigo ceased all medical

treatment for the alleged injuries in 2006, for a period lasting approximately eighteen

months. Moreover, although Gradnigo changed employment in 2006, she offered no

proof that she was required to leave LGMC for less physically demanding

employment as a result of her alleged accident-related injuries. The record reflects

that she was never placed on a work restriction by any of her physicians after the

accident, and she was able to perform her job at LGMC after the accident at her pre-

accident work level, without accommodation.

The jury also rejected Gradnigo’s claim for loss of earning capacity. We

find the jury acted within its discretion in doing so. The law on loss of earning

capacity was stated in Folse v. Fakouri, 371 So.2d 1120, 1123-24 (La.1979) as

follows:

What plaintiff earned before and after the injury does not
constitute the measure. Even if he had been unemployed
at the time of the injury he is entitled to an award for
impairment or diminution of earning power. And while his
earning capacity at the time of the injury is relevant, it is
not necessarily determinative of his future ability to earn.
Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).
Damages should be estimated on the injured person’s
ability to earn money, rather than what he actually earned
before the injury.

....

Earning capacity in itself is not necessarily
determined by actual loss; damages may be assessed for the
deprivation of what the injured plaintiff could have earned

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despite the fact that he may never have seen fit to take
advantage of that capacity. The theory is that the injury
done him has deprived him of a capacity he would have
been entitled to enjoy even though he never profited from
it monetarily.

The record reflects that the jury was reasonable in concluding that Gradnigo failed

to establish any deprivation or diminution of her earning power as a result of the

accident. We find no manifest error in the jury’s decision to not award damages for

loss of earning capacity.

Defendants’ Assignment of Error

Taxing of Expert Witness Fees

Pursuant to the Louisiana Code of Civil Procedure, the allocation of

court costs is within the discretion of the court:

Art. 1920. Costs; parties liable; procedure for taxing

Unless the judgment provides otherwise, costs shall
be paid by the party cast, and may be taxed by a rule to
show cause.

Except as otherwise provided by law, the court may
render judgment for costs, or any part thereof, against any
party, as it may consider equitable.

Witnesses called to testify as expert witnesses are to be compensated for

their services, with the amount to be determined by the court and taxed as costs to be

paid by the party cast in judgment. La.R.S. 13:3666. We cannot say that the trial

court abused its discretion in allocating costs in the manner chosen. This assertion

is without merit.

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IV.

CONCLUSION

The jury’s award of $10,000.00 in past medical expenses is amended,

and plaintiff-appellant, Adele Gradnigo, is awarded $14,526.55 for past medical

expenses incurred, in accordance with the evidence established at trial. Further, we

amend the jury’s award of $0 to Adele Gradnigo for past and future loss of enjoyment

of life and raise the award to $10,000.00. All other aspects of the jury’s damage

awards are affirmed.

We affirm the trial court’s assessment to the defendants of the expert

witness costs for orthopedic surgeon, Dr. John Cobb, vocational rehabilitation

counselor, Scott Smith, and economist, Dr. Douglas Womack.

Costs of this appeal are to be borne equally by all parties to this appeal.

AFFIRMED AS AMENDED.

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