Eunice M. Guidry v. Allstate Ins. Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-517

EUNICE M. GUIDRY

VERSUS

ALLSTATE INSURANCE COMPANY, ET AL.

**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, DOCKET NO. C-2008-0652
HONORABLE HERMAN C. CLAUSE, PRESIDING
**********

SYLVIA R. COOKS
JUDGE

**********

Court composed of Sylvia R. Cooks, James T. Genovese, and Phyllis M. Keaty,
Judges.

AFFIRMED, AS AMENDED.

Nicholas A. Blanda
Anderson & Dozier
P.O. Box 82008
Lafayette, LA 70598-2008
(337) 233-3366
COUNSEL FOR PLAINTIFF/APPELLANT:
Eunice M. Guidry

John W. Penny, Jr.
Penny & Hardy, APLC
600 Jefferson Street, Suite 601
Lafayette, LA 70502
(337) 231-1955
COUNSEL FOR DEFENDANTS/APPELLEES:
Allstate Insurance Company, et al.

Staci Knox Villemarette
Cloyd, Wimberly & Villemarette, LLC
302 La Rue France, Suite 204
P.O. Box 53951
Lafayette, LA 70505-3951
(337) 289-6906
COUNSEL FOR DEFENDANT/APPELLEE:
State Farm Mutual Automobile Insurance Company

COOKS, Judge.

On March 11, 2007, Zakary Treadway (a minor) was driving his 1999 Ford

Ranger pick-up truck in a southerly direction on Verot School Road in Lafayette

Parish, when he struck the rear of a 1995 Lincoln Town Car driven by Eunice

Guidry. Ms. Guidry had come to a stop behind a vehicle in front of her, when she

was struck from the rear by the pick-up truck.

The Ford Ranger pick-up truck, driven by Zakary Treadway, was owned by

his father, Travis Treadway, and insured by Allstate Insurance Company, with a

liability policy limit of $250,000.00. Ms. Guidry’s vehicle was insured by State

Farm Mutual Automobile Insurance Company, with uninsured/underinsured

motorist coverage (UM) limits of $100,000.00.

The parties’ description of the severity of the accident was conflicting. Ms.

Guidry argued the Treadway vehicle was “out of control,” was traveling at an

excessive rate of speed, and struck her vehicle at a high rate of speed, causing it to

travel five to ten feet and strike the vehicle in front of her. Ms. Guidry maintained

her vehicle was rendered a total loss due to the collision. Counsel for the

Treadways and Allstate contended Zakary Treadway “braked” before impact, and

the collision was “low speed.” They asserted the accident caused only “minor

damage” to the rear of Ms. Guidry’s vehicle. An eyewitness to the accident stated

Treadway passed his vehicle while traveling “well over the speed limit” and

slammed his brakes once he saw Ms. Guidry’s vehicle. The eyewitness stated the

Treadway vehicle skidded for a second, and then struck Ms. Guidry’s vehicle,

pushing it into the vehicle in front of her.

Ms. Guidry was transported from the accident scene by ambulance to the

emergency room at Our Lady of Lourdes Hospital in Lafayette. She complained of

pain in her neck, lower back, and upper back/shoulder areas. She was discharged

from the hospital that day with a diagnosis of cervical and lumber strains.

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Ms. Guidry received follow-up care from Dr. Louis Blanda, an orthopaedic

surgeon, who approximately two years earlier had performed a lumbar fusion on

her in 2005 as a result of a prior automobile accident that occurred in 2004. Dr.

Blanda testified that Ms. Guidry suffered a minor neck sprain in the 2004 accident,

which had fully healed. Dr. Blanda believed the accident in question caused her

neck problems and also caused a major aggravation to the lumbar problems caused

by the 2004 accident. He also believed cervical surgery was a distinct possibility

for Ms. Guidry to alleviate her neck problems.

Ms. Guidry was also treated by Dr. Daniel Hodges, a pain management

specialist. Eventually, in preparation for trial, Defendants had Ms. Guidry

examined by Dr. Thomas Bertuccini, a neurosurgeon.

Ms. Guidry filed suit seeking damages for the injuries she sustained in the

car accident. It was stipulated that Zakary Treadway was solely liable in causing

the accident. Following a four-day jury trial, a motion for directed verdict was

entered, finding that Ms. Guidry was injured in the accident. The trial court also

issued another directed verdict awarding Ms. Guidry $21,425.00 in past medical

expenses and ordering State Farm to pay these past medical expenses. The jury

rendered the following damage awards to Ms. Guidry: $75,000.00 for her past,

present and future physical pain and suffering; $10,000.00 for loss of enjoyment of

life; and $10,000.00 for future medical expenses. The jury did not make an award

to Ms. Guidry for mental anguish or disability. Ms. Guidry now appeals, asserting

that the jury erred in only awarding her $10,000.00 in future medical expenses.

She also asserts the jury abused its discretion in only awarding her $75,000.00 for

past, present and future pain and suffering, and in failing to make any awards for

mental anguish and disability. She also contends the $10,000.00 award for loss of

enjoyment of life is inadequate. The Defendants maintain the awards rendered by

the jury were supported by the evidence and testimony in the record.

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ANALYSIS

I. Standard of Review

The Louisiana Supreme Court in Guillory v. Lee, 09-75, p. 10-11 (La.

6/26/09), 16 So.3d 1104, 1116-17, set forth the standard for appellate review of

damage awards:

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. This court has noted:

[T]he reviewing court must give great weight to factual
conclusions of the trier of fact; where there is conflict in
the testimony, reasonable evaluations of credibility and
reasonable inferences of fact should not be disturbed
upon review, even though the appellate court may feel
that its own evaluations and inferences are as reasonable.
The reason for this well-settled principle of review is
based not only upon the trial court’s better capacity to
evaluate live witnesses (as compared with the appellate
court's access only to a cold record), but also upon the
proper allocation of trial and appellate functions between
the respective courts.

Perkins v. Entergy Corp., 00-1372 (La.3/23/01), 782 So.2d 606, reh’g
denied, 4/27/01 (quoting Canter v. Koehring, 283 So.2d 716, 724
(La.1973)) (superseded by statute on other grounds). 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. Youn v.
Maritime Overseas Corp., et al., 623 So.2d 1257, 1261 (La.1993),
reh’g denied, 10/7/93.

The role of an appellate court in reviewing a general damages
award, one which may not be fixed with pecuniary exactitude, is not
to decide what it considers to be an appropriate award, but rather to
review the exercise of discretion by the trier of fact. This court has
long held true to the following principle:

[b]efore a Court of Appeal can disturb an award made by
a [factfinder,] the record must clearly reveal that the trier
of fact abused its discretion in making its award. Only
after making the finding that the record supports that the
lower court abused its much discretion can the appellate
court disturb the award, and then only to the extent of

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lowering it (or raising it) to the highest (or lowest) point
which is reasonably within the discretion afforded that
court.

Wainwright, 00-0492, p. 6, 774 So.2d at 74 (quoting Coco v. Winston
Indus., Inc., 341 So.2d 332, 334 (La.1977) (internal citations
omitted)). See also Miller v. LAMMICO, 07-1352, p. 28 (La.1/16/08),
973 So.2d 693, 711 (stating that an appellate court may disturb a
damages award only after an articulated analysis of the facts discloses
an abuse of discretion and citing Theriot v. Allstate Ins. Co., 625
So.2d 1337, 1340 (La.1993)); Youn v. Maritime Overseas Corp., 623
So.2d 1257, 1261 (La.1993); Reck v. Stevens, 373 So.2d 498, 501
(La.1979). Furthermore, reasonable evaluations of credibility and
reasonable inferences of fact should not be disturbed upon review,
even though the appellate court may feel that its own evaluations and
inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844
(La.1989). Where there are two permissible views of the evidence,
the factfinder’s choice between them cannot be manifestly erroneous
or clearly wrong. Id. (citing Arceneaux v. Domingue, 365 So. 2d
1330, 1333 (La.1978) and Watson v. State Farm Fire & Casualty Ins.
Co., 469 So.2d 967 (La.1985)). Moreover, on review, an appellate
court must be cautious not to re-weigh the evidence or to substitute its
own factual findings just because it would have decided the case
differently. Perkins, 782 So.2d at 612 (citing Ambrose v. New
Orleans Police Department Ambulance Service, 93-3099, 93-3110,
93-3112, p. 8 (La.7/5/94), 639 So.2d 216, 221). Reasonable persons
frequently disagree about the measure of 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 1261.

II. Review of the Medical Evidence and Testimony

This case turns on the jury’s evaluation of the medical evidence and

testimony in the record.

Ms. Guidry was taken from the scene of the accident to the emergency room

complaining of neck and back pain. Thereafter, she received follow-up care from

Dr. Blanda. At that time, Ms. Guidry was still under Dr. Blanda’s active care with

respect to a three-level lumbar fusion surgical procedure performed in October,

2005 as a result of injuries sustained in an April, 2004 automobile accident.

The MRIs revealed Ms. Guidry had a C5-6 disc herniation causing neural

compression on her right side, a C6-7 central disc herniation and an L4-5 disc

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herniation. Dr. Blanda believed the two cervical disc herniations were caused by

the 2007 automobile accident, as he noted Ms. Guidry had ceased having any neck

complaints by July, 2004. He also stated the 2007 accident either caused the L4-5

disc herniation, or made it symptomatic. Dr. Blanda stated, as of December 12,

2006, (three months before the subject accident) Ms. Guidry was doing well and

her back pain had been alleviated. He testified that he was very near releasing Ms.

Guidry from his care when the subject accident occurred.

Rather than perform surgery, Dr. Blanda recommended continuing physical

therapy. According to Ms. Guidry, the repeated physical therapy sessions provided

only short-term relief. Eventually, Dr. Blanda recommended Ms. Guidry undergo

surgery to alleviate her neck and back pain. He believed without surgery, Ms.

Guidry would endure chronic pain the remainder of her life.

Regarding causation, Dr. Blanda testified as follows:

Q. In your professional opinion, Dr. Blanda, considering
everything you know about Ms. Guidry, going back to 2004 as a long
time patient, is it your professional opinion that her two (2)
herniations reflected on the . . . June, 2007 MRI were more probable
than not caused by the March, 2007 auto accident.

A. I think they were. I mean, she had no complaints with the back
for a long, long time. And I felt that her initial problem was a muscle
sprain, and it got better. Now, she was having trouble again and not
getting better, and MRI showed some problems.

Q. Ms. Guidry has since developed problems in her right arm,
correct?

A. Yes.

Q. Is it your professional opinion that Ms. Guidry’s two (2) disc
herniations in her neck are the anatomical source of her right arm
problems, as well as chronic neck pain?

A. I think it is. And she, as you said, progressed to where she was
having pain in the right arm, right shoulder, was having development
of weakness and some reflex asymmetry in the right arm, all
indicating that this was coming from the neck.

Q. Those types of physical findings would be consistent with a
right-sided disc herniation?

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A. Yes.

Dr. Mark Stephan, a radiologist, performed the 2007 MRIs on Ms. Guidry.

A large portion of his testimony concerned comparing the 2007 MRIs with the

previous scans and MRIs performed on Ms. Guidry following her 2004 accident.

He found the cervical MRI largely similar to the cervical CT scan performed in

2004. However, he noted there was a small herniation at C5-6, with right-sided

nerve compression, which was not present on the previous CT scan. Dr. Stephan

testified he was unable to determine whether or not the lumbar disc herniation at

L4-5 was a new injury or “left over from the 2005 study.” As to whether the

cervical and lumbar disc herniations were pre-existing or caused by the 2007

accident, Dr. Stephan stated he would defer to the treating physician.

While Ms. Guidry was considering surgery, Dr. Blanda referred her to Dr.

Daniel Hodges for pain management. On May 17, 2010, Dr. Hodges evaluated

Ms. Guidry. He felt she had good range of motion in her neck, but was tender at

the base of her skull, with tenderness extending into her upper back. He also

detected several areas of muscle spasm in her neck, shoulders, and upper back. He

felt neurologically she “appeared to be intact” and had “no real significant gross

sensory deficits that could be appreciated.” As to Ms. Guidry’s lower back

problems, Dr. Hodges determined she did have some discomfort arching her back,

but found she was neurologically intact. He noted she had subjective complaints

of pain radiating into her lower extremities.

Dr. Hodges prescribed Darvocet, a pain medication, and Skelaxin, a muscle

relaxant for her. He also noted she was using Valium periodically to help with

sleep. Dr. Hodges opined that surgery “could benefit her” and give her a “little bit

better quality of life.” He also felt she was suffering from a “mild degree of

anxiety and depression.”

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Dr. Hodges also testified as to what medical treatments would be appropriate

for Ms. Guidry to have in the future. He believed it was reasonable to expect Ms.

Guidry would require a three to four medication regime (including an anti-

inflammatory, pain medication, and an anti-anxiety medication) for the remainder

of her life. He also believed follow-up x-rays every year for approximately a

decade would be prudent, as well as MRIs every three to five years for the

remainder of her life. He stated she would need to be treated by a pain specialist

three or four times per year, along with periodic check-ups with an orthopedist.

Dr. Hodges also believed physical therapy would be required, as would epidural

steroid injections or facet injections once a year. He also believed Ms. Guidry

“could maybe benefit from counseling, just dealing with depression and anxiety

due to secondary pain complaints.” Further, he testified Ms. Guidry was

permanently and totally disabled from all employment and restricted her to nothing

more than light recreational activities. Dr. Hodges related Ms. Guidry’s neck and

back problems to the 2007 accident. On cross-examination, Dr. Hodges

acknowledged he did not examine Ms. Guidry’s medical records prior to the

subject accident.

Defendants requested that Dr. Bertuccini, a neurosurgeon, examine Ms.

Guidry. Dr. Bertuccini examined Ms. Guidry and reviewed all the medical scans

and reports, both prior to and after the March 2007 accident. He found she

suffered from “chronic post-traumatic pain and right upper extremity radiculitis;

moderately severe by history along with mild sensory deficits.” When questioned

as to what specific trauma he was referring to when concluding Ms. Guidry

suffered from “post-traumatic” pain, Dr. Bertuccini stated he was referring to post-

March 2007 trauma. He believed Ms. Guidry suffered from a 5% total body

impairment. Dr. Bertuccini also felt Ms. Guidry was not at maximum medical

improvement and would require future medical treatment. He listed potential

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treatment options to include physical therapy, epidural steroid injections, and the

use of a dorsal column stimulator.

Dr. Bertuccini did not believe surgery was warranted for either her cervical

or lumbar problems. He felt she had no spinal cord compression or significant

compromise of any nerves in her cervical or lumbar spine to warrant surgery. Dr.

Bertuccini stated he would require updated diagnostic testing before agreeing

surgery was necessary or prudent.

A. Future Medical Expenses

Ms. Guidry complains that the jury abused its discretion in only awarding

her $10,000.00 in future medical expenses. As mentioned previously, after trial,

directed verdicts were entered finding Ms. Guidry was injured in the accident and

awarding her $21,425.00 in past medical expenses. We find the award of

$10,000.00 in future medical expenses is abusively low when considering the

testimony and documentary evidence concerning Ms. Guidry’s future medical

expenses.

A plaintiff has the burden of proving, by a preponderance of the evidence,

entitlement to special damages such as future medical expenses. Thibeaux v.

Trotter, 04-482 (La.App. 3 Cir. 9/29/04), 883 So.2d 1128, writ denied, 04-2692

(La. 2/18/05), 896 So.2d 31. In meeting this burden of proof, Ms. Guidry must

show more probably than not, that these expenses will be incurred, and she must

present medical testimony that they are indicated and the probable cost of these

expenses. Veazey v. State Farm Mut. Auto Ins., 587 So.2d 5 (La.App. 3 Cir.1991).

Ms. Guidry argues the evidence was uncontradicted that she was entitled to

the cost of neck surgery, and substantially more than $10,000.00 in future non-

surgical treatment. Ms. Guidry presented the testimony of Stephanie Chalfin, who

was qualified as an expert in Life Care Planning. Ms. Chalfin set forth a detailed

analysis of the specific costs of the accident related medical treatment

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recommended by Dr. Blanda and Dr. Hodges, as well as the dorsal column

stimulator mentioned by Dr. Bertuccini.

Ms. Chalfin found, based on Dr. Hodges’ recommendations, Ms. Guidry

would need to be on a multi-medicine regime for the remainder of her life. She

examined the cost of the medicines Ms. Guidry was presently taking: Skelaxin,

which cost $98 per month; Valium, which cost $10.94 per month; and Darvocet,

which cost $24.98 per month.

Ms. Chalfin also determined Ms. Guidry would require four pain

management sessions per year for the remainder of her life, at a cost of $155.00 per

session. She also found Ms. Guidry would need one orthopedic evaluation once

every year for ten years at a cost of $77.00 per visit.

The experts also testified Ms. Guidry will need one therapeutic evaluation

each year for ten years at a cost of $90.00 to $92.00 per visit, ten physical therapy

sessions per year for ten years at a cost of $125.00 per session, cervical and lumbar

epidural steroid injections once per year for ten years at a cost per year of a

$1,507.00 physician fee as well as a $3,843.98 facility fee. Ms. Chalfin also found

eight to twelve counseling sessions in her lifetime may be needed, at a rate of

$190.00 to $200.00 per session.

Ms. Guidry will also require annual or bi-annual lab and bloodwork studies

at a cost between $105.00 (annual) to $210.00 (bi-annual) per year. Ms. Chalfin

concluded Ms. Guidry would require one cervical x-ray ($74.00) and one lumbar

x-ray ($95.00) every year for ten years, then one every other year for life. She also

would need one cervical MRI ($1,260.00 to $1,593.00 per) and one lumbar MRI

($1,853.00 to $2,227.00 per) every three to four years for the remainder of her life.

Ms. Chalfin included in her life care plan, the cost of a dorsal column

stimulator, which was referred to by Dr. Bertuccini as a possible treatment option.

The total cost of this spine stimulator treatment was $212,794.00.

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Ms. Guidry then presented the testimony of Randolph Rice, who was

qualified as an expert in economics, to establish Ms. Guidry’s life expectancy and

the resulting present value of the costs of the recommended medical treatment.

Mr. Rice set forth the following amounts for the non-surgical treatment

recommended and contained within Ms. Chalfin’s life care plan (excluding the

dorsal column stimulator and the costs of any surgery):

Future Medications $ 27,143.00

Medical Evaluations $ 11,473.00

Therapeutic Evaluation $ 862.00

Therapeutic Interventions $ 31,271.00

Diagnostic Testing and Lab Studies $ 33,440.00

Total $104,189.00

1. Future Medications

In disputing the need for Ms. Guidry to receive an amount for future

medications, Defendants argued that Ms. Guidry went a substantial period of time

without refilling her prescription medicines. Thus, they argue it is reasonable for

the jury to have refused to make such an award. We disagree. Ms. Guidry

explained that her ex-husband had become addicted to certain prescription drugs,

and she was concerned that would happen to her, so she began cutting back on how

often she took her pills and attempted to use over the counter pain medicine if

possible. This, she claimed, led to a stockpile of drugs that she continued to take

when needed. She testified the pain eventually became so unbearable she was

unable to function without the prescription medications. The record bears out she

was actively taking her medication and refilling her prescriptions for months

before trial. Both Dr. Hodges and Dr. Blanda believed the drugs were absolutely

essential to Ms. Guidry being able to manage her pain. Dr. Bertuccini testified that

it was reasonable for Ms. Guidry’s treatment to include a prescription drug

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regimen. Considering the testimony, and the fact that Ms. Chalfin and Mr. Rice’s

figures testimony as to the cost of the drugs was unchallenged, we find the trial

court erred in not awarding Ms. Guidry $27,143.00 for future medications.

2. Medical Evaluations

Ms. Chalfin testified Ms. Guidry will require four pain management sessions

per year for the remainder of her life and one orthopedic evaluation once every

year for ten years. Ms. Chalfin based her conclusions on Dr. Hodges’ testimony.

Mr. Rice calculated this would amount to $11,473.00. The defense did not present

any testimony refuting the necessity of these visits or their cost, and Dr. Bertuccini

agreed Ms. Guidry “deserves to remain under active medical treatment.”

Therefore, the jury abused its discretion in not awarding $11,473.00 in future

medical evaluations.

3. Diagnostic Testing and Lab Studies

Ms. Chalfin found, based on Dr. Hodges’ testimony, that Ms. Guidry will

require lab studies and several types of diagnostic testing over the remainder of her

life. Mr. Rice calculated the costs for these services will be $33,440.00. There

was no testimony from Dr. Bertuccini to dispute that these diagnostic tests and lab

studies were necessary or that the costs and amounts for the testing were incorrect

or excessive. In fact, Dr. Bertuccini agreed that Ms. Guidry “requires continued

medical follow-up to determine if there are other treatments that might be

beneficial for her.” Therefore, the jury abused its discretion in not awarding

$33,440.00 for the cost of future diagnostic testing and lab studies.

4. Therapeutic Interventions

As set forth earlier, Ms. Chalfin’s life care plan included yearly epidural

steroid injections, physical therapy sessions, and counseling sessions. Ms. Guidry

argues the jury erred in not awarding these costs.

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Concerning the epidural steroid injections and physical therapy sessions,

both Dr. Blanda and Dr. Hodges believed they were necessary for Ms. Guidry to

effectively manage her chronic neck and back pain. Defendants argued Ms.

Guidry, in the three years since the 2007 accident occurred until trial, had only

received one epidural steroid injection. Defendants note that Ms. Guidry testified

the injection provided only short-term relief from her pain. Similarly after

attending dozens of physical therapy sessions after the 2007 accident, and

receiving some short-term benefit, Ms. Guidry stopped going to the sessions.

As to the counseling sessions, Defendants point out that Ms. Guidry had not

undergone any counseling sessions since the 2007 accident. They further point out

that Dr. Hodges could only testify that counseling sessions “might help” and Dr.

Bertuccini did not list counseling sessions as a reasonable treatment option.

Considering the record as a whole, we find the jury could have reasonably

determined the therapeutic interventions and therapeutic evaluations were not

necessary or the medical testimony was insufficient to establish such treatment

would be required in the future. Therefore, we find the jury was within its

discretion in not awarding any amount in future medical expenses for the

therapeutic interventions and evaluations recommended in Ms. Chalfin’s life care

plan.

5. Surgical Procedures

Ms. Guidry asks this court to award an additional $79,000.00 in future

medical expenses to reflect the cost of neck surgery. Ms. Guidry does not argue on

appeal that she is entitled to the cost of future back surgery. We find the jury did

not abuse its discretion in finding the necessity for neck surgery was not proven in

this case. Although stating several times in his testimony that surgery was

indicated for Ms. Guidry, on cross-examination Dr. Blanda acknowledged if a

patient is neurologically intact, as Dr. Hodges concluded Ms. Guidry was, there is

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“less” of an indication to perform surgery. After reviewing Dr. Blanda’s testimony

that in the three years since the accident in question, Ms. Guidry never agreed to

undergo neck surgery, as well as Dr. Bertuccini’s testimony that neck surgery was

not warranted, we cannot say the jury abused its discretion in failing to make an

award for the cost of future neck surgery.

6. Dorsal Column Stimulator

We also find the evidence did not establish that a dorsal column stimulator

was a necessary treatment option for Ms. Guidry. Dr. Hodges, who was called by

Ms. Guidry to testify as to the needed medical treatments, never mentioned a

dorsal column stimulator. Dr. Blanda, at no point in his testimony, recommended

the implant of that device. He stated that a dorsal column stimulator is generally

employed only after back surgery has failed to achieve the desired results.

Although Dr. Bertuccini did list a dorsal column stimulator as a “reasonable

treatment option,” he also stated it is only used as an “end-of-the-road strategy”

and a “final consideration” if “everything else fails.” Thus, the jury did not abuse

its discretion in failing to award future medical expenses for implantation of a

dorsal column stimulator.

B. General Damages

Ms. Guidry also assigns as error the jury’s awards for general damages,

which were itemized as follows:

Physical pain and suffering -- past, present
and future: $75,000.00

Disability -- past, present and future: $ 0.00

Mental anguish, emotional and psychological
damages -- past, present and future: $ 0.00

Loss of enjoyment of life -- past,
present and future: $10,000.00

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Ms. Guidry argues these awards were abusively low considering the injuries she

suffered as a result of the accident in question.

1. Physical Pain and Suffering

Ms. Guidry contends the jury abused its discretion in awarding only

$75,000.00 in past, present, and future physical pain and suffering. She asks that

this court increase that award to $150,000.00. We note that since the jury’s verdict

form contained separate categories for mental anguish and disability, we must

conclude the $75,000.00 amount awarded for pain and suffering was intended to

solely encompass that specific area of damages and did not include any amount for

mental anguish and disability.

The primary factors in assessing quantum for this category of general

damages are the severity and the duration of the pain and suffering. Jenkins v.

State ex rel. Dep’t of Transp. and Dev., 06-1804 (La.App. 1 Cir. 8/19/08), 993

So.2d 749, writ denied, 08-2471 (La.12/19/08), 996 So.2d 1133. Ms. Guidry notes

that all the physicians who testified found she was in pain and that her condition

would likely require continued medical treatment in the future. There was conflict

among the doctors as to the severity of Ms. Guidry’s pain and suffering and the

jury was presented with evidence that Ms. Guidry had discontinued both her

prescription medications and her physical therapy sessions in the time between the

2007 accident and trial. Therefore, considering the $75,000.00 award was

reflective only of her pain and suffering, and not any mental anguish and disability,

we cannot say the jury’s award was abusively low.

2. Disability

Ms. Guidry argues the jury abused its discretion in failing to make any

award for disability. While disability is a component of general damages, more

specifically it is recognized as those general damages constituting any permanent

disability or impairment that is secondary to the injuries sustained in the accident.

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Brossett v. Howard, 08-535 (La.App. 3 Cir.12/10/08), 998 So.2d 916, writ denied,

09-77 (La. 3/6/09), 3 So.3d 492; see also Matos v. Clarendon Nat’l Ins. Co., 00-

2814 (La.App. 1 Cir. 2/15/02), 808 So.2d 841. As we set forth above, since the

jury verdict specifically listed disability as a category for damages, we must

assume the jury did not include any award for disability in the $75,000.00 award

made for physical pain and suffering. Thus, no amount of damages was awarded

for disability. We find this failure was an abuse of the jury’s discretion.

The evidence established Ms. Guidry suffered impairment as a result of her

injuries. Dr. Blanda testified Ms. Guidry sustained a 25% to 30% total body

impairment as a result of the 2004 accident, but believed she was “functioning very

well” following surgery. He also testified he intended to discharge Ms. Guidry

from his care until the 2007 accident occurred. He believed she could have

returned to her job at Melancon Funeral Home but for the 2007 accident.

Following the 2007 accident, Dr. Blanda determined Ms. Guidry suffered

from a 45% total body impairment and has restricted Ms. Guidry to sedentary to

“very light” activities. Dr. Hodges permanently and totally disabled Ms. Guidry

from all employment and restricted her to nothing more than light recreational

activities.

Although Dr. Bertuccini only listed Ms. Guidry as having a 5% total body

impairment, he agreed she would likely suffer from “chronic cervical and lumbar

pain and may have ongoing arm pain and leg pain along with disability.” He

agreed that Ms. Guidry suffered from a “partial disability” and “her severe pain

limits her from certain activities.”

When a jury’s award of damages is excessively low, even when the jury

awards no damages for a particular item, an appellate court can only increase the

award “to the lowest amount which is reasonably within the court's discretion.”

Ryan v. Zurich Am. Ins. Co., 07-2312, p. 7 (La. 7/1/08), 988 So.2d 214, 219. The

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jury’s failure to award any disability damages in this case was clear error. After

reviewing prior awards in similar cases, and the evidence presented at trial, we

conclude the lowest amount the jury could have awarded to Ms. Guidry for her

disability is $40,000.00. Accordingly, we amend the judgment to reflect this

increased award.

3. Mental Anguish

Ms. Guidry argues “despite uncontradicted evidence that [she] suffered

mental/emotional damage as a result of the accident,” the jury abused its discretion

in awarding nothing for same. She asks this court to award $50,000.00 for mental

anguish.

In this case, since the jury verdict provided a separate category for

“physical” pain and suffering, the jury must have concluded Ms. Guidry suffered

no depression or other mental or psychological dysfunction as a result of the 2007

accident.

Ms. Guidry testified at trial that she had recovered from her 2004 accident

and resulting back surgery, and was having no psychological or emotional

problems at the time the 2007 accident occurred. She testified the 2007 accident

was a very traumatic experience, and she became upset and depressed over the

severe pain she began experiencing following the accident. Ms. Guidry stated she

became even more despondent when the epidural steroid injections did not provide

any lasting relief from her pain. She also testified she felt “unworthy” about her

inability to do the things she had always done around the house. She also stated

she became unable to drive due to fear caused from the accident and needed her

daughter to drive her everywhere.

Defendants argue the jury was well within its discretion in not making an

award for mental anguish. They specifically note that Ms. Guidry underwent

counseling for a period of time following the 2004 accident, but has not had any

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counseling for emotional issues since the 2007 accident. They argue this more

than justifies the jury’s decision not to award Ms. Guidry anything for mental

anguish.

Dr. Hodges testified that Ms. Guidry had complained of nervousness and

depression, and believed counseling could benefit her in “dealing with depression

and anxiety due to secondary pain complaints.” We also note Adam Guilbeau, a

witness to the accident in question, rendered assistance to Ms. Guidry before

emergency personnel arrived at the scene. He testified he approached Ms. Guidry

and “was asking her if she wanted an ambulance, and I couldn’t really understand

her, she was really shaking bad, and couldn’t talk really.”

The jury was simply unreasonable and abused its discretion in failing to

award Ms. Guidry any amount for mental anguish. We find the lowest amount the

jury could have awarded to Ms. Guidry for her mental anguish is $30,000.00.

4. Loss of Enjoyment of Life

Ms. Guidry argues the jury abused its discretion in only awarding

$10,000.00 for loss of enjoyment of life. Loss of enjoyment of life “refers to

detrimental alterations of the person’s life or lifestyle or the person’s inability to

participate in the activities or pleasures of life that were formerly enjoyed prior to

the injury.” McGee v. AC & S, 05-1036, p. 5 (La.7/10/06), 933 So.2d 770, 775.

Unlike pain and suffering, “whether or not a plaintiff experiences a detrimental

lifestyle change depends on both the nature and severity of the injury and the

lifestyle of the plaintiff prior to the injury.” Id.

The medical testimony from all the physicians in this case concluded Ms.

Guidry would endure chronic neck and back pain, and would face a lifetime of

pain management. Ms. Guidry was restricted by both Dr. Blanda and Dr. Hodges

to nothing more than light recreational activities. Dr. Bertuccini also noted that

Ms. Guidry’s “severe pain limits her from certain activities.” However, the jury

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heard testimony from Ms. Guidry that by October 2008 she was “feeling better”

and was able to begin Cajun dancing again. While Ms. Guidry’s pain is ongoing

and while the award is seemingly on the low side, we are unable to say the award

was abusively low, given the jury’s vast discretion. Therefore, we will not disturb

the jury’s $10,000.00 award for loss of enjoyment of life.

DECREE

For the foregoing reasons, the jury’s award of $10,000.00 in future medical

expenses is amended, and plaintiff-appellant, Eunice Guidry is awarded

$72,056.00 for future medical expenses. The judgment is also amended to award

Eunice Guidry $40,000.00 for past, present, and future disability and $30,000.00

for past, present, and future mental anguish. All other aspects of the jury’s damage

awards are affirmed. Costs of this appeal are assessed equally to the parties.

AFFIRMED, AS AMENDED.

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