Eileen Laday v. John Doe, Lafayette City-Parish Consolidated Government

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-1110

EILEEN LADAY

VERSUS

JOHN DOE, LAFAYETTE CITY-PARISH CONSOLIDATED
GOVERNMENT, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20081830
HONORABLE DURWOOD WAYNE CONQUE, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Marc T. Amy, Shannon J. Gremillion, and Phyllis M. Keaty,
Judges.

AFFIRMED AS AMENDED.

Edward O. Taulbee IV
Christopher E. Taulbee
Taulbee & Associates
P.O. Box 2038
Lafayette, LA 70502-2038
(337) 269-5005
Counsel for Plaintiff/Appellee:
Eileen Laday

Kenneth Wayne Jones, Jr.
Allison M. Ackal
Attorney at Law
P. O. Box 53290
Lafayette, LA 70505-3290
(337) 593-9062
Counsel for Defendant/Appellant:
Lafayette City-Parish Consolidated Government

GREMILLION, Judge.

The Lafayette City-Parish Consolidated Government appeals a judgment in

favor of Eileen Laday that awarded her damages for injuries she allegedly sustained

in an incident aboard a City-Parish bus on April 10, 2007. Laday answered the appeal

and asserts that the trial court abused its discretion in its award of general damages

and future medical expenses and asks that we amend both amounts to award

additional damages. For the reasons that follow, we affirm as amended.

FACTS

On April 10, 2007, Laday was a passenger on a bus owned by the City-Parish

and driven by Carlos Cormier. The bus had been donated to the City-Parish by a

governmental entity in Missouri in the aftermath of Hurricane Katrina. Prior to the

donation of the bus, a plexiglass shield or partition located above the modesty panel

in front of the first seat, designed to prevent contact between passengers and the

opening door, had been removed. The first seats adjacent to the modesty panel were

situated such that the passengers faced the aisle rather than the front of the bus. Thus,

a natural posture of the passenger in the first seat would be to place her right arm on

the bar or rail that held the modesty panel in place. Laday claimed that as the door

opened, she was trapped or struck by it. Her accounts of the degree and length of

entrapment varied over the course of the litigation, but she never wavered in her claim

that some form of contact occurred.

The day after the incident, Laday sought treatment with Dr. Michael P.

Kennedy, a general practitioner in Carencro, Louisiana. She was complaining of neck

and shoulder pain radiating into her right arm. Dr. Kennedy treated Laday

conservatively with prescriptions and a referral for physical therapy. An MRI ordered

by Dr. Kennedy demonstrated degenerative cervical disc conditions as well as a disc

herniation at the C5-6 level.

In June 2008, Laday saw Dr. Louis Blanda, a Lafayette orthopedic surgeon,

who ultimately recommended that Laday undergo surgery to relieve her condition.

As of the date of trial, she had not had the surgery. Dr. Blanda also related the

herniation to Laday being entrapped by the bus door. Dr. Blanda opined that the cost

of this surgery would run between $60,492.60 to $61,492.60.

The causal relation was disputed by Dr. Paul Fenn, an orthopedic surgeon who

performed an independent medical examination of Laday at the City-Parish’s request.

Dr. Fenn’s examination revealed some inconsistency in Laday’s level of effort in

muscle strength testing. He also noted that Laday’s muscles had experienced no

atrophy as one might expect when a muscle became denervated as a result of a disc

herniation and stenosis. However, Dr. Fenn diagnosed Laday with cervical

spondylosis (chronic degenerative changes) and a herniated disc. Based upon his

review of Laday’s medical history, and in particular the records regarding at least two

past incidents in which Laday had complained of lingering cervical pain, Dr. Fenn

opined that it would be difficult to pinpoint any particular incident as causing the

herniated disc. On the contrary, he opined that the herniated disc was most likely the

result of degenerative changes in Laday’s neck, particularly in light of the fact that

in the general population, excluding trauma patients, the C5-6 herniation is the most

common disc herniation in the neck. Dr. Fenn did admit that the mechanism of injury

Laday described was a possible cause of the disc herniation, but not a probable cause.

Following a bench trial, the trial court found that Laday had been injured by

the bus door. The trial court further found that the City-Parish was bound by the high

standards imposed upon common carriers and found that the City-Parish was

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negligent in failing to replace the plexiglass barrier. Although Laday’s testimony

enlarged the extent and time she was entrapped, the court considered the fact that she

was a diagnosed paranoid schizophrenic and found that the exaggerations were

explained by her mental illness, but that some contact with the door had occurred that

caused or aggravated a disc herniation to the point that it now requires surgery.

Laday was awarded $60,000.00 in general damages, $24,084.56 in past medical

expenses, and $60,492.60 in future medical expenses to be placed into a reversionary

trust as per La.R.S. 13:5106. All sums were to carry judicial interest from the date

of demand. The City-Parish appeals this judgment. Laday appeals the awards of

general damages and future medical expenses as abusively low.

ASSIGNMENTS OF ERROR

The City-Parish assigns the following errors:

1. The trial court was manifestly erroneous or clearly wrong in
holding that Ms. Laday was injured in the incident at issue when
the decision came down to a credibility determination between
Ms. Laday and Mr. Cormier that was resolved in favor of Carlos
Cormier.

2. The trial court committed legal error in not placing the interest on
Ms. Laday’s award for future medical expenses into the
reversionary trust to be established for her future medical
expenses.

Laday assigns the following errors:

1. [The trial court] abused [its] discretion in awarding the Plaintiff
general damages in the amount of $60,000.00 which was
abusively low.

2. [The trial court] abused [its] discretion in awarding future medical
expenses in the amount of $60,492.00 which omitted additional
future medical expenses proven at trial.

ANALYSIS

The trial court’s findings of credibility were not as simplistic as the City-

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Parish’s characterization makes them sound. What the trial court found was that,

while Laday certainly magnified the degree to which she was entrapped by the bus

door, it did believe that there was contact with the door. The trial court also found

that Cormier could not testify that there was no contact; he simply testified that he

saw nothing happen. The photographs of the bus certainly allow one to clearly

envision that there could be contact between the front seat passenger and the door.

Those photographs depict a very slight clearance between the modesty panel and the

opened door. A passenger’s arm could well be caught by the door as it opened. The

medical experts agreed that Laday’s herniated disc could have been caused by contact

with the door, and two medical experts flatly stated that it more probably than not

was.

The trial court’s findings are reviewed under the manifest error standard. If the

trial court or jury's findings are reasonable in light of the record reviewed in its

entirety, the court of appeal may not reverse, even if convinced that had it been sitting

as the trier of fact, it would have weighed the evidence differently. Sistler v. Liberty

Mut. Ins. Co., 558 So.2d 1106 (La.1990). We are further admonished by the

Louisiana Supreme Court that where there is conflict in testimony, reasonable

evaluations of credibility should not be disturbed. Canter v. Koehring Co., 283 So.2d

716 (La.1973). We are aware that where documents or objective evidence so

contradict the witness's story, or the story itself is so internally inconsistent or

implausible on its face, that a reasonable factfinder would not credit the witness's

story, the court of appeal may find manifest error or clear wrongness even in a finding

purportedly based upon a credibility determination. Rosell v. ESCO, 549 So.2d 840

(La.1989). We find no manifest error in the trial court’s determination that those

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inconsistencies that do exist in this case cast doubt only on the extent to which Laday

was contacted by the bus door. Nor do we find manifest error in the trial court’s

ruling on the issues of whether an incident occurred or on its causal relationship with

Laday’s cervical disc herniation.

We turn now to the issue of whether the judicial interest awarded Laday on

the future medical expenses component of her damages should have been ordered

placed into the reversionary trust. Louisiana Revised Statute 13:5106(3)(a) provides:

In any suit for personal injury against a political subdivision wherein the
court, pursuant to judgment, determines that the claimant is entitled to
medical care and related benefits that may be incurred subsequent to
judgment, the court shall order that a reversionary trust be established
for the benefit of the claimant and that all medical care and related
benefits incurred subsequent to judgment be paid pursuant to the
reversionary trust instrument. The reversionary trust instrument shall
provide that such medical care and related benefits be paid directly to
the provider as they are incurred. Nothing in this Paragraph shall be
construed to prevent the parties from entering into a settlement or
compromise at any time whereby medical care and related benefits shall
be provided, but with the requirement of establishing a reversionary
trust.

The statute offers no guidance as to the disposition of judicial interest on the future

medical expenses component of a plaintiff’s damages. The legislature did include a

“statement of purpose and finding” that judgments against public entities have

exceeded the ability to pay them; that the public fisc is threatened by these judgments

as to pose a threat to the general health, safety, and welfare of the citizenry; and that

the limitations imposed by the statute are needed to lessen the impact of judgments

against governmental entities on their citizens. La.R.S. 13:5106(E).

Legal interest is mandated when prayed for or when provided for by law.

La.Code Civ.P. art. 1921. Judicial interest is mandated in all cases ex delicto.

La.R.S. 13:4203. An award of judicial interest is required on an award of future

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economic losses. “No differentiation is made between those elements of quantum

which recompense for past losses and those which recompense for future losses,” at

least when determining whether interest is awarded on such an element of damages.

La. Farms v. La. Dep’t. of Wildlife & Fisheries, 95-845, p. 48, (La. App. 3 Cir.

10/9/96), 685 So. 2d 1086, 1111, writs denied, 97-0486, 97-0507 (La. 4/4/97), 692

So. 2d 420, 422

This court has stated that the purpose of judicial interest is to compensate a

victim for the opportunity costs associated with being deprived of funds to which

she was entitled during the pendency of litigation. McLaughlin v. Hill City Oil Co./

Jubilee Exxon, 97-577 (La. App. 3 Cir. 10/8/97), 702 So2d 786, writ denied, 97-2797

(La. 2/13/98), 706 So.2d 994. Because Laday is only entitled to have her future

medical expenses paid from the reversionary trust as they are incurred, she has

suffered no loss of use of that money. The purpose behind an award of judicial

interest is not furthered by paying same directly to Laday. And the purpose behind

La.R.S. 13:5106 is thwarted by paying those sums directly to Laday. We therefore

find that the trial court erred in ordering the payment of judicial interest on future

medical expenses to Laday rather than into the reversionary trust.

A court reviewing a general damage award does so under an abuse of discretion

standard. Andrus v. State Farm Mut. Auto. Ins. Co., 95-0801 (La. 3/22/96), 670 So.2d

1206. This requires us to determine whether the award is below that which a

reasonable trier of fact could award for the particular injury to the plaintiff under the

particular circumstances of the case. Id. Laday cites Cox v. Shelter Insurance Co.,

09-958 (La.App. 3 Cir. 4/7/10), 34 So.3d 398, writ denied, 10-1041 (La. 9/17/10), 45

So.3d 1044, which she contends demonstrates the abusively low nature of the trial

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court’s award. We are instructed, though, that it is only after we have determined that

an award was abusively low that we can look to the jurisprudence for similar awards.

In Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied,

510 U.S. 1114, 114 S.Ct. 1059 (1994), the supreme court stated, “The initial inquiry

is whether the award for the particular injuries and their effects under the particular

circumstances on the particular injured person is a clear abuse of the ‘much

discretion’ of the trier of fact.” While making this initial inquiry, we are specifically

prohibited from using “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.” Id. We find no abuse of discretion in the trial court’s award.

The trial court pointed out while rendering its reasons for judgment that it was

not impressed with Laday’s complaints. She testified very little about her level of

pain. Laday argues that the trial court should have placed greater credence on her

medical records than on Laday’s court testimony. We disagree, and remain mindful

that the trial court heard the testimony and observed the witness’s demeanor in court.

Deference is afforded the trial court’s damage awards for precisely the reason that the

members of the appeal court were not afforded that opportunity. The trial court also

heard evidence that Laday had suffered head, neck, back, and arm pain resulting from

a series of accidents dating back at least as far as 1992 and had told Dr. Blanda that

she still had pain from those injuries.

An award of future medical expenses is an item of special damages that can be

established to reasonable mathematical certainty, if not with absolute precision.

Moody v. State Farm Mut. Auto. Ins. Co., 03-1594 (La. App. 3 Cir. 5/12/04), 872

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So.2d 630, writ denied, 04-1465 and 04-1386 (La. 11/8/04), 885 So.2d 1137.

Laday argues that the trial court failed to consider that she will require post-

operative care. The trial court awarded Laday $60,492.00, part of which represents

the amount the parties stipulated to, plus the amount Dr. Blanda would charge to

perform the anterior cervical discectomy and fusion. In its oral reasons, the trial court

stated it was awarding this amount representing Dr. Blanda’s estimate of the surgical

and post-surgical care. However, the trial court awarded her the amount Dr. Blanda

estimated would be required just for the surgery. Dr. Blanda testified that if Laday

had the surgery, he would probably continue to see her for at least a year. He further

testified that she would require physical therapy and periodic x-rays. For the trial

court to fail to take those charges into account, when their need was established at

trial, constitutes an abuse of its discretion.

The record reflects that Dr. Blanda charges $92.00 per established outpatient

visit. During the last full year Dr. Blanda saw Laday, he was scheduled to see her

nine times (several of which she failed to attend or were rescheduled). We therefore

award her future medical expenses for appointments with Dr. Blanda in the amount

of $828.00. Laday underwent physical therapy at Our Lady of Lourdes Hospital. Her

total charges for that physical therapy totaled $1,368.00 for treatment over a period

of four months. We amend the award of future medical expenses to include a like

amount. The award for future medical expenses is amended to $62,688.00 to be paid

into the reversionary trust.

CONCLUSION

The trial court’s findings of fact regarding whether Laday was injured in an

incident on April 10, 2007, are subject to review under the manifest error standard.

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We find that the record reasonably supports this finding. The trial court erred as a

matter of law in ordering payment of judicial interest on Laday’s future medical

expenses directly to Laday rather than into the reversionary trust to be created for

paying those expenses as they are incurred. The trial court did not abuse its discretion

in its award of general damages to Laday, but did abuse its discretion in its award of

future medical expenses, as that award failed to consider Laday’s post-operative care.

The award of future medical expenses is amended to $62,688.00 to be paid into the

reversionary trust.

Costs of this appeal in the amount of $17,671.19 are taxed to the Lafayette

City-Parish Consolidated Government.

AFFIRMED AS AMENDED.

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