Cindy Young v. Irvin T. Joy

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 09-756

CINDY YOUNG, ET AL.

VERSUS

IRVIN T. JOY, ET AL.

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. C-753-06
HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Billy Howard Ezell, J. David Painter, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Daniel Keith Wall
Marcantel & Marcantel
P. O. Box 1366
Jennings, LA 70546
(337) 824-7380
Counsel for Plaintiff/Appellant:
Cindy Young

Jennifer Bailey Drago
United States Attorney
800 Lafayette Street, Suite 2200
Lafayette, LA 70501-6865
(337) 262-6618
Counsel for Defendant/Appellee:
USA, US Army Corps of Engineers

David Oliver Way
P. O. Box 80655
Lafayette, LA 70598-0655
(337) 235-2112
Counsel for Defendants/Appellees:
Avis Rent-A-Car Systems, Inc.
Pathfinder Insurance Company
Irvin T. Joy

EZELL, JUDGE.

Cindy Young appeals the decision of the trial court awarding her $22,524.24

as a result of a car accident with Irvin Joy. For the following reasons, we hereby

affirm the decision of the trial court.

On November 14, 2005, Ms. Young was involved in a motor vehicle accident

with Mr. Joy. As a result of the accident, she sustained neck and shoulder strains.

Liability was stipulated to by the Defendants, Mr. Joy, Avis-Rent-A-Car Systems, and

Pathfinder Insurance (hereinafter the Defendants). Only the damages incurred by Ms.

Young were before the trial court. Despite fourteen months of treatment with her

physician, Dr. Brian Wilder, the trial court found that because Ms. Young had failed

to mitigate her damages, she suffered only a six-month injury. He awarded her

$7,500.00 for pain and suffering damages, $2,500.00 for future pain and suffering,

$4,171.50 in lost wages, $1,218.00 in expert fees for the testimony of Dr. Wilder, and

$7,134.74 in medical damages. The medical damage award did not award her any

damages for treatment received beyond six months after the accident. From this

decision, Ms. Young appeals.

Ms. Young asserts eight assignments of error on appeal. She claims that the

trial court erred in finding that she suffered only a six-month soft tissue injury; that

the trial court erred in finding she failed to mitigate her damages; that the trial court

erred in awarding only $7,500.00 in pain and suffering damages; that the trial court

erred in awarding only $7,134.74 of $10,223.99 in medical bills incurred; that the

trial court erred in failing to award $1,217 to her for failed mediation costs; that the

trial court erred in failing to award her children loss of consortium damages; that the

trial court erred in allowing evidence of her substance abuse and treatment; that the

trial court erred in finding that Ms. Young had a “serious problem with abusing

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prescription medication prior to the accident.”

We will first address Ms. Young’s claims that the trial court erred in allowing

evidence of her substance abuse into the record and in finding that she abused

prescription drugs prior to the accident, as our rulings on these issues greatly affect

our findings on her other assignments of error.

The district court is awarded vast discretion in its decisions on evidentiary

rulings, and its decision to admit or exclude evidence will not be reversed on appeal

absent a clear showing of abuse of that discretion. Foster v. Rabalais Masonry, Inc.,

01-1394 (La.App. 3 Cir. 3/6/02), 811 So.2d 1160, writ denied, 02-1164 (La. 6/14/02),

818 So.2d 784. Ms. Young argues that a federal statute, 42 U.S.C. § 290(a)(a)

through 290(f)(f), prohibits the disclosure of records relating to substance abuse

treatment. However, this argument is of no moment as the records of Savoy Medical

Center relating to her substance abuse were admittedly obtained via Ms. Young

signing a medical records release specifically allowing the release of medical records

protected under federal law, including records dealing with “drug abuse.” She

simply cannot hide behind federal law when she specifically waived that protection

by signing the waiver allowing the release of those records.

Additionally, Ms. Young objected that the records were irrelevant to the

proceedings below. Again, we disagree. The records detail a serious substance abuse

problem that Ms. Young fought with for a prolonged period of time. The fact that she

was addicted to the exact prescription drugs she received as part of her treatment for

the injuries sustained in this accident, as well as the depth of that addiction, is

completely relevant to the veracity of her claims of pain following the accident. We

cannot disagree with the trial court that evidence of Ms. Young’s substance abuse

problem is relevant to this case.

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Finally, Ms. Young argues in brief that language in the medical record

constitutes hearsay evidence. However, “[t]o preserve an evidentiary issue for

appellate review, it is essential that the complaining party enter a contemporaneous

objection to the evidence or testimony, and state the reasons for the objection.”

LaHaye v. Allstate Ins. Co., 570 So.2d 460, 466 (La.App. 3 Cir.1990), writ denied,

575 So.2d 391 (La.1991). Ms. Young did not properly preserve this issue by

objecting at trial. Thus, it is not now before us, and we decline to consider it. The

trial court did not abuse its discretion in admitting Ms. Young’s medical records

dealing with her history of substance abuse.

Having determined that the trial court properly admitted evidence concerning

Ms. Young’s prescription drug abuse problem, we next turn to her claim that the trial

court erred in finding that she suffered from drug abuse prior to the accident.

A trial court’s findings of fact will not be disturbed on appeal
unless the reviewing court finds that they are clearly wrong or
manifestly erroneous. Stobart v. State, Through Department of
Transportation and Development, 617 So.2d 880 (La.1993); Rosell v.
ESCO, 549 So.2d 840 (La.1989). Under the manifest error standard, the
criterion is whether the trial court’s findings are reasonable; even if the
appellate court feels its own evaluation of the evidence is more
reasonable, the findings of the trial court cannot be reversed if they are,
in fact, reasonable. Lewis v. State through Department of
Transportation and Development, 94-2370 (La.4/21/95), 654 So.2d 311.
In other words, the appellate court may not reverse simply because it is
convinced that, had it been sitting as a trier of fact, it would have ruled
differently. Orea v. Scallan, 32,622 (La.App. 2d Cir.1/26/00), 750
So.2d 483. A finding of fact by a trial court should be upheld unless it
is clearly wrong. Madison v. Thurman, 32,401 (La.App. 2d
Cir.10/27/99), 743 So.2d 857.

Mayzel v. Gould, 44,081, p. 5 (La.App. 2 Cir. 2/25/09), 4 So.3d 979, 982.

Records from both the Savoy Medical Center and Allen Parish Hospital

indicate that Ms. Young not only started abusing prescription drugs several years

prior to the accident, but that she had been taking between twenty and thirty-five

Lortabs per day for at least two years prior to the accident. Some of the records

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indicate that she may have had this problem as early as four years before the accident.

Ms. Young admitted that she abused Lortabs, and pharmacy records show her filling

prescriptions for the drug throughout 2004 and 2005 before the accident. The

evidence in the record overwhelmingly indicates that Ms. Young had a serious drug

problem prior to the accident. Ms. Young’s claim that the trial court erred in that

finding is without merit.

Because they are so closely interwoven, we will next address Ms. Young’s

claims regarding the trial court’s findings that she suffered only a six-month injury

and that she failed to mitigate her damages together.

The medical records of Dr. Wilder show that Ms. Young suffered a cervical

and shoulder strain as a result of the accident. Dr. Wilder ordered Ms. Young to

undergo physical therapy and prescribed her Lortab, the drug she was addicted to, as

well as a muscle relaxer, Soma. Dr. Wilder testified that Ms. Young never told him

of her drug problem and that he prescribed these drugs to her on every visit she made

to his office. An MRI performed on Ms. Young showed that she had a congential

narrowing of her spine unrelated to the accident as well as a mildly bulging disc that

in no way impinged her nerves. Ms. Young complained of radiation of pain from her

shoulder and neck until the MRI showed no impingement, then those symptoms

disappeared. Ms. Young failed to go to physical therapy as ordered and was

dismissed as a patient from the Thibodeaux, Albro, & Touchet Therapy Group for this

reason. However, she continued to tell Dr. Wilder that she was attending and

improving with therapy. She did, however, continue to fill the Lortab prescriptions

despite not attending therapy. Six months after the accident, she told Dr. Wilder that

she was ninety-percent back to normal, and he hoped to discharge her soon thereafter.

However, just before being discharged form his care, Ms. Young claims that she

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reaggravated the injury, requiring additional pain killers. When presented with Ms.

Young’s history of drug abuse, Dr. Wilder admitted the potential that some of her

complaints and treatments could be related to drug-seeking behavior. Most

damningly, while treating with Dr. Wilder, Ms. Young went to rehabilitation in an

attempt to break her addiction to pain killers. However, just four days after her

release from the Savoy Medical Center, Ms. Young admits that she went back to Dr.

Wilder, where she once again received a prescription for Lortab and Soma.

It is clear that the trial court examined these facts and determined that Ms.

Young’s actions included drug-seeking behavior and that her credibility was sparse

at best.

When findings are based on determinations regarding the
credibility of witnesses, the manifest error-clearly wrong standard
demands great deference to the trier of fact’s findings; for only the
factfinder can be aware of the variations in demeanor and tone of voice
that bear so heavily on the listener’s understanding and belief in what is
said.

Rosell, 549 So.2d at 844. When the factual finding of the trial court is based on a

credibility call, that finding can virtually never be manifestly erroneous or plainly

wrong. Stobart, 617 So.2d 880. The trial court found that Ms. Young was likely

healed around the time that she told Dr. Wilder she was ninety percent better and

faced discharge from her care. Moreover, the trial court found that by wilfully

refusing to attend physical therapy, Ms. Young at the least prolonged whatever

symptoms she actually suffered from up to and beyond this six-month time-frame.

The trial court clearly attributed any alleged symptoms after this time to drug seeking,

and based on the record before this court, we can find no error in this conclusion. We

can find no error in this trial court’s conclusion that Ms. Young failed to mitigate her

damages when she refused physical therapy in lieu of seeking only the pain

medications she was addicted to at that time. These assignments of error also lack

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merit.

We next turn to Ms. Young’s claim that the trial court erred in failing to award

her children damages for loss of consortium. Again, we must disagree. There is no

evidence in the record whatsoever concerning this claim save for a statement from

Ms. Young that she was not able to play with her children as much after the accident.

Nevertheless, there was no testimony from either Ms. Young or the children as to the

decreased amount or quality of time she was able to spend with them, the effect on

them, or any other evidence as to this claim. We can find nothing in the record

indicating that the trial court’s ruling on this issue to be manifest error.

Having addressed Ms. Young’s assignments of error concerning the factual

findings of the trial court below, we will now turn our attention to her assignments

of error concerning damages.

It is well-settled that a judge or jury is given great discretion in
its assessment of quantum, both general and special damages. Louisiana
Civil Code article 2324.1 provides: “In the assessment of damages in
cases of offenses, quasi offenses, and quasi contracts, much discretion
must be left to the judge or jury.” Furthermore, the assessment of
quantum, or the appropriate amount of damages, by a trial judge or jury
is a determination of fact, one entitled to great deference on review.
Wainwright v. Fontenot, 00-0492, p. 6 (La.10/17/00), 774 So.2d 70, 74.
. . . Because the discretion vested in the trier of fact is so great, and even
vast, an appellate court should rarely disturb an award on review.

Guillory v. Lee, 09-75, p.14 (La. 6/26/09), 16 So.3d 1104, 1116-17.

While the trial court’s award of $7,500.00 for the cervical and shoulder strains

may be somewhat low for a six-month injury requiring medical treatment and therapy,

this court cannot find the award to be abusively low, especially in light of the facts

of this particular case, including Ms. Young’s failure to attend therapy and the trial

court’s determination that much of Ms. Young’s treatment was related to drug-

seeking behavior. Likewise, in light of these facts, we cannot find that the trial court

abused its discretion in awarding special medical damages for only the first six

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months of Ms. Young’s treatment. Accordingly, we find that the trial court did not

abuse its discretion in either its award of $7,500.00 for pain and suffering damages

or in its award of $7,134.74 in special medical damages.

Finally, Ms. Young claims that the trial court erred in failing to award her

$1,271.00 in costs for a failed mediation attempt. Ms. Young’s three-sentence

addressing of this issue in brief is so scant as to border on waiving this assignment

of error. However, out of an abundance of caution, we will address it. Ms. Young

and the Defendants apparently agreed to mediation at some point in the proceedings,

as there is no indication mediation was ordered by any court. This mediation failed

to reach an amicable conclusion. Louisiana Revised Statues 9:4109 states that “[i]f

the case is not settled by mediation, the costs of mediation shall be taxed as costs of

court upon rendition of a final judgment.” However, this subsection is subject to

prior language stating it should apply “unless the parties agree to some other

allocation of cost.” It is clear from the mediation bill that the parties had agreed to

split the costs of the mediation, as the bill charges each party the $1,271.00 Ms.

Young now seeks to recover. As there is nothing in the record to indicate anything

other than this fact, the trial court did not err in failing to award Ms. Young her share

in the failed mediation, especially in light of the fact that it is she, rather than the

Defendants, who is appealing the outcome of the trial.

For the above reasons, the decision of the trial court is hereby affirmed. Costs

of this appeal are hereby assessed against Ms. Young.

AFFIRMED.

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