Cece Sloan v. Renee Mouton

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-804

CECE SLOAN

VERSUS

RENEE MOUTON, ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 08-C-1866-C
HONORABLE ALONZO HARRIS, 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
Billy Howard Ezell, Judges.

AFFIRMED AS AMENDED.

John Edmund McElligott, Jr.
Kyle Liney Mark Gideon
Theodore Glenn Edwards, IV
Christopher Joseph Piasecki
Davidson, Meaux, Sonnier, McElligott, Fontenot, Gideon & Edwards
P. O. Box 2908
Lafayette, LA 70502-2908
Telephone: (337) 237-1660
COUNSEL FOR:
Plaintiff/Appellee - Cece Sloan

Michael J. Breaux
Michael J. Breaux, L.L.C.
P. O. Box 51106
Lafayette, LA 70505-1106
Telephone: (337) 235-8000
COUNSEL FOR:
Defendant/Appellant - Shelter Mutual Insurance Co.

THIBODEAUX, Chief Judge.

The plaintiff, CeCe Sloan, sustained injuries when her vehicle was

struck by the vehicle of an underinsured driver. The defendant, Shelter Mutual

Insurance Company, appeals from disputed elements in the jury verdict and the

judgment awarding damages to the plaintiff. Ms. Sloan answered the defendant’s

appeal and assigns various errors in the jury verdict and the judgment. For the

following reasons, we amend in part and affirm the judgment of the trial court.

I.

ISSUES

We must decide:

(1) whether the trial court manifestly erred in granting additur and
increasing the plaintiff’s general damages by $70,000.00;

(2) whether the trial court manifestly erred in finding that the
defendant had accepted the additur and waived its option for a new
trial on damages;

(3) whether the trial court manifestly erred in finding that the
accident caused the injuries to the plaintiff’s shoulders and
thumbs;

(4) whether the trial court manifestly erred in denying the plaintiff’s
motions in limine based upon the defendant’s ex parte
communications with the plaintiff’s physicians;

(5) whether the jury manifestly erred in its award of only $1,600.00 in
future medical expenses; and,

(6) whether the jury manifestly erred in its award of $11,000.00 for
past lost wages and zero for future lost wages.

II.

FACTS AND PROCEDURAL HISTORY

CeCe Sloan, age fifty-five at the time of trial, was injured in a motor

vehicle accident in April of 2007, when the driver of another vehicle ran a stop

sign, striking her vehicle and causing her to spin around and crash into a telephone

pole. She sustained injuries to her head, chest, shoulders, arms, thighs, knees, and

hands, including deep tissue bruising, the development of large cysts in her breasts,

torn ligaments in her hands, and severe carpal metacarpal joint laxity in her

thumbs. Her injuries required surgery to both hands with the placement of screws

and pins into the joints. Ms. Sloan had nightmares after the crash and suffered

anxiety, depression, sleeplessness, and nervousness.

The tortfeasor, Renee Mouton, and her insurer, U.S. Agencies

Casualty Insurance Company, stipulated to liability, and Ms. Sloan settled with

them for their policy limits of $10,000.00. Ms. Sloan received $5,000.00 in

medical pay and $15,000.00 in tender from her uninsured-underinsured motorist

(UM) carrier, Shelter Mutual Insurance Company. She proceeded to trial against

Shelter for the remainder of her damages. The jury found that the accident had

caused Ms. Sloan’s injuries and awarded her $120,450.00 in total damages. The

jury’s award was comprised of:

$ 47,850.00 Past medical expenses
$ 1,600.00 Future medical expenses
$ 11,000.00 Past lost wages
-0- Loss of future earning capacity
$ 20,000.00 Past and future physical pain and suffering
$ 10,000.00 Past and future mental pain and suffering
-0- Loss of enjoyment of life
$ 30,000.00 Permanent disability
$120,450.00 Total damages

Ms. Sloan filed a motion for additur. The trial judge granted an

additur of $70,000.00, increasing the award for physical pain and suffering by

$30,000.00 (from $20,000.00 to $50,000.00); increasing the award for mental pain

and suffering by $25,000.00 (from $10,000.00 to $35,000.00); and adding

$15,000.00 for loss of enjoyment of life. The additur resulted in the following

awards:

$ 47,850.00 Past medical expenses

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$ 1,600.00 Future medical expenses
$ 11,000.00 Past lost wages
-0- Loss of future earning capacity
$ 50,000.00 Past and future physical pain and suffering
$ 35,000.00 Past and future mental pain and suffering
$ 15,000.00 Loss of enjoyment of life
$ 30,000.00 Permanent disability
$190,450.00 Total damages

Shelter appealed, assigning three errors in the trial court’s judgment:

(1) the jury’s finding of causation; (2) the judge’s finding of waiver by Shelter of

its right to a new trial; and, (3) the judge’s additur in the amount of $70,000.00.

Ms. Sloan answered the appeal, assigning errors of her own in the trial

court’s judgment: (1) the judge’s failure to exclude testimony following ex parte

communications between Shelter and two physicians; (2) the jury’s failure to

award a reasonable amount for past lost wages and future loss of earning capacity;

and, (3) the jury’s failure to award a proper amount for future medical expenses.

We amend the award of future medical expenses by increasing it from

$1,600.00 to $10,000.00. We affirm all other awards for the reasons set forth

below.

III.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s findings of fact in

the absence of manifest error or unless it is clearly wrong. Stobart v. State,

Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840

(La.1989). A two tiered test must be applied in order to reverse the findings of the

trial court:

a. the appellate court must find from the record that a
reasonable factual basis does not exist for the finding of
the trial court, and

b. the appellate court must further determine that the
record establishes that the finding is clearly wrong
(manifestly erroneous).

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Mart v. Hill, 505 So.2d 1120 (La.1987).

IV.

LAW AND DISCUSSION

Causation

Shelter contends that the jury erred in finding that the injuries to Ms.

Sloan’s hands and shoulders were caused by the motor vehicle accident. Shelter

concedes that the evidence on causation was conflicting. It, nonetheless, argues

that the credible evidence was that Ms. Sloan’s shoulder bursitis and thumbs laxity

conditions were not related to the accident. This argument has no merit. To

overturn a jury finding, there must be no factual basis in the record to support the

jury’s determination. Fleming v. Acadian Geophysical Services, Inc., 02-264

(La.App. 3 Cir. 10/02/02), 827 So.2d 623, writ denied, 02-2717 (La. 1/10/03), 834

So.2d 440.

Here, three physicians testified that Ms. Sloan’s shoulder and hand

injuries were causally related to the vehicular accident on April 6, 2007. Dr.

Mitchell Dugas, Dr. Peter Vizzi, and Dr. Darrell Henderson, who performed the

bilateral reconstructive hand surgeries, all positively testified regarding causation

as to Ms. Sloan’s injuries. Shelter argues that Dr. Dugas, Ms. Sloan’s internist

who treated her from April to November after the accident, did not record any

complaints regarding her hands and shoulders, indicating that these problems were

not related to the accident. Dr. Dugas, however, testified that, based upon his

review of her entire chart and radiology reports, the shoulder and thumb issues

were related to the April 6, 2007, motor vehicle accident.

Dr. Dugas first saw Ms. Sloan on April 24, 2007, and his major focus

at that time was the lumps in her breasts, the crying, nightmares, sleeplessness,

anxiety, and intrusive thoughts of the accident. He was concerned about cancer

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and ordered an ultrasound and mammogram of her breasts. He ruled out cancer,

determining that the lumps were due to fluid build-up caused by deep tissue

bruising and bleeding into the chest as a result of the injuries suffered in the

automobile accident. Dr. Dugas did note issues with muscular pain and range of

motion issues in the neck and bilateral shoulder area. On her third visit, Ms. Sloan

had shortness of breath issues. Due to the trauma of the accident and the chest

injuries, Dr. Dugas was concerned with her heart and lungs. He ordered chest x-

rays, ultrasound, and an EKG. When he saw Ms. Sloan in October of 2007, he

documented a sharp pain in her left hand and found crepitus, or crunching and

popping, when he palpated it. He gave her steroid injections. By November, Ms.

Sloan had bilateral thumb pain and lingering right shoulder pain. Dr. Dugas

ordered x-rays of her right shoulder and referred her to the orthopedic surgeon, Dr.

Peter Vizzy.

Dr. Vizzy testified that Ms. Sloan’s shoulder injuries and her thumb

injuries were consistent with trauma from the motor vehicle accident where she

was struck from the front, spun around, and was struck from the back. Dr. Vizzy

found painful response and breakaway weakness in her shoulder, consistent with

impingement bursitis, a tendonitis condition, and rotator cuff impingement,

objectively confirmed on an MRI. Dr. Vizzy treated her shoulder with injections.

Her shoulder was getting stronger and was about seventy percent (70%) improved

by late January of 2008, but it was not without pain at this point.

With regard to her hands, Dr. Vizzy testified that Ms. Sloan had point

tenderness at the carpal metacarpal (CMC) joint on both hands, which is at the base

of the thumbs, at the very bottom. When he palpated these areas, the thumbs

actually subluxed, or came in and out of their joints. Dr. Vizzy’s December 2007

x-rays, as well as the x-rays from November of 2007, showed the joint laxity in her

thumbs but did not show any degenerative joint disease. Dr. Vizzy testified,

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however, that the joint condition can lead to arthritic changes. He testified that her

previous physical therapy and hand braces had stopped helping and he injected Ms.

Sloan’s thumbs with a steroid called Kenalog. When he saw Ms. Sloan in March

of 2008, he talked to her about the possibility of surgery. By August of 2008, Ms.

Sloan was developing arthritis due to inflammation in the CMC joints caused by

the movement/laxity.

Dr. Vizzy confirmed that people like Ms. Sloan, who suffer multiple

injuries over their bodies in accidents such as hers, hurt so much from injuries to

their major extremities that they do not describe pain, or even broken bones, in

their fingers, toes, ankles, and other small bones until months after the accident.

Thus, he customarily tells emergency room patients to let him know if new pains

become apparent. Dr. Vizzy specifically testified that the mechanism of injury to

both of Ms. Sloan’s hands was very consistent with someone holding on to the

steering wheel with both hands and being impacted during a crash, and that more

likely than not, the trauma from the automobile accident produced the subluxation

and CMC joint laxity. He further testified that because Ms. Sloan’s problems were

not due to a degenerative condition, but involved a ligament and stability situation,

he wanted a hand specialist to see her. He referred her to Dr. Robert Morrow. Dr.

Vizzy testified that because hand surgery is aimed at relieving pain, but is not

expected to completely restore strength and function, it should not be rushed into

and could reasonably involve multiple people, including Ms. Sloan’s ultimate

choice of having the surgery some time later by Dr. Henderson.

Dr. Morrow saw Ms. Sloan about eleven months after Dr. Vizzy’s

treatment. Dr. Morrow ordered an MRI of Ms. Sloan’s hands in December of

2008, nineteen months after her accident. He found degenerative changes with

some spur formation and testified that thumb laxity can occur without trauma and

is more likely to develop in women over age fifty than in men. Dr. Morrow said he

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did not have enough information to relate the thumb problems to the accident and

ultimately opined that it was more probable that they were not related. He did,

however, recommend hand surgery to Ms. Sloan. Orthopedic surgeon Dr. Gary

Porubsky, who examined Ms. Sloan in August of 2009 on behalf of Shelter, did not

relate her thumb problems to the accident, opining that they were age-related and

that she would have complained to Dr. Dugas before October of 2007 if the

injuries were due to the April accident.

Dr. Darrell Henderson, a hand surgeon in Lafayette for forty-four

years, saw Ms. Sloan in May of 2010. He performed reconstructive surgery, called

first metacarpal arthroplasty, on her right hand in August of 2010 and on her left

hand in late December of 2010, shortly before trial. Dr. Henderson testified that

her hand injuries were definitely caused by trauma and were the result of holding

so tightly to the steering wheel with both hands that when the airbag did not

deploy, all of her force pushed on the steering wheel which basically pushed back

on the base of her thumbs tearing the ligaments in the thumbs. He testified that

when he went in to reconstruct the ligament that runs from the base of the thumb,

the first metacarpal, to the second metacarpal, he found the ligament “torn apart

very cleanly from the base of the second metacarpal.” Dr. Henderson said it was

just lying there, and he was able to “very effectively use it to reattach that tendon

to the second metacarpal.”

Dr. Henderson illustrated the mechanics of the injury to the jury and

distinguished subluxation caused degeneratively by arthritis and subluxation

caused by injury. Dr. Henderson testified that when he operated on Ms. Sloan in

December of 2010, he had done five exact operations that month, and only one

patient had degeneration from arthritis, while the others were trauma victims who

had had some kind of accident. He said that Ms. Sloan did not have arthritis

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throughout the joint, which was pristine except for the spurs that had grown into

the joint some time after the accident.

Accordingly, based upon the testimony of Dr. Dugas, Dr. Vizzy, and

Dr. Henderson, the jury clearly had a reasonable basis for finding that the accident

caused the injuries to Ms. Sloan’s shoulders and hands.

Additur

Shelter contends that the trial judge erred in increasing Ms. Sloan’s

general damages by $70,000.00. We disagree with Shelter and affirm the trial

court’s granting of additur. The jury’s original verdict awarding only $60,000.00

was abusively low where it was to cover all physical pain and suffering, past and

future, all mental pain and suffering, past and future, loss of enjoyment of life, and

permanent disability.

Specifically, at the end of trial, the jury awarded Ms. Sloan

$30,000.00 for permanent disability, $20,000.00 for past and future physical pain

and suffering, $10,000.00 for past and future mental pain and suffering, and zero

for loss of enjoyment of life. Pursuant to La.Code Civ.P. art. 1814, the trial judge

may grant additur if he is of the opinion that the jury’s verdict is so inadequate that

a new trial should be granted for that reason only. After a hearing on Ms. Sloan’s

motion for additur, the trial judge found three awards inadequate, and he increased

the physical pain and suffering award to $50,000.00; he increased the mental pain

and suffering award to $35,000.00; and, he awarded $15,000.00 for Ms. Sloan’s

loss of enjoyment of life. “In reviewing a judgment reformed in accordance with a

remittitur or additur, the court shall consider the reasonableness of the underlying

jury verdict.” La.Code Civ.P. art. 2083(B).

Here, the record reveals that Ms. Sloan suffered painful physical

injuries as a result of the accident, and her mental injuries were severe enough to

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cause post-traumatic stress in the form of nightmares and intrusive thoughts during

the day, an inability to sleep, nervousness and anxiety. The record reveals that

during the accident, Ms. Sloan held so tightly to her steering wheel with both

hands, in order to brace herself for the crash, that the pressure she exerted actually

bent and deformed the steering wheel. She suffered blunt force trauma with deep

tissue bruising to her chest, and she developed posttraumatic cystic accumulations

in her breasts. Ms. Sloan also had severe soft tissue injuries to her head, shoulders,

forearms, thighs, and knees, some of which took months to heal. She had stinging

pain in the tops of both hands which increased and intensified as her thumb

strength weakened, ultimately leading to reconstructive surgeries and impairment

to both hands.

Ms. Sloan, historically, had very physical occupations and used her

hands extensively in her earlier work as an environmental lab assistant, as a

landscape gardener, as a nurse’s assistant performing healing touch massage

therapies, as a stress counselor performing reflexology therapy, and she was

reportedly pursuing a therapy license in reflexology. She also restored houses and

enjoyed cooking. Ms. Sloan endured four years of treatment, extensive therapy,

two hand surgeries with the possibility of future surgeries, and was left with a

permanent impairment to both hands of approximately twenty-five percent. The

jury awarded her $30,000.00 for the permanent disability but only $20,000.00 for

past and future physical pain and suffering and $10,000.00 for past and future

mental suffering.

Louisiana jurisprudence supports the trial judge’s finding that additur

of $30,000.00 was appropriate for physical pain and suffering in Ms. Sloan’s case.

See Miller v. Chicago Ins. Co., 306 So.2d 355 (La.App. 3 Cir.), judgment affirmed,

320 So.2d 134 (La.1975) (affirmed additur of $20,000.00 to a $21,000.00-award

for multiple physical injuries where there was a twenty percent disability, and the

9

range of general damage awards for similar injuries was $35,000.00 to

$100,000.00); Greer v. State Ex. Rel. Dep’t of Transp., 06-417 (La.App. 3 Cir.

10/4/06), 941 So.2d 141, writ denied, 06-2650 (La. 1/8/07), 948 So.2d 128

(physical pain and suffering awards increased from $3,000.00 to $75,000.00 for

shoulder, hip, and knee injuries); Pertuit v. State Farm Ins. Co., 04-176 (La.App. 5

Cir. 6/29/04), 877 So.2d 1101 ($90.000.00 in general damages for injury to right

hand); Boudreaux v. Schwegmann Giant Supermarkets, 585 So.2d 583 (La.App. 4

Cir. 1991), writs denied, 590 So.2d 593, 595 (La.1992) (general damage award

increased from $50,000.00 to $75,000.00 for injury to left hand).

Our jurisprudence also supports the trial judge’s additur of $15,000.00

for Ms. Sloan’s loss of enjoyment of life. “Loss of enjoyment of life, sometimes

known as hedonic damages, refers to the detrimental alterations of a person’s life

or lifestyle or a person’s inability to participate in the activities or pleasures of life

that were formerly enjoyed.” McGee v. A C And S, Inc., 05-1036, p. 4 (La.

7/10/06), 933 So.2d 770, 773. Given the conceptual difference between pain and

suffering and loss of enjoyment of life, a separate award for loss of enjoyment of

life is warranted and is not duplicative of the award for pain and suffering, if the

damages resulting from loss of enjoyment of life are sufficiently proven. Id. Here,

the impairments to Ms. Sloan’s hands prevented her from cooking, gardening,

holding her grandchild, and for a while, even holding a glass of water. Ms. Sloan,

who was described by friends and co-workers as a “do-er” and outdoor person, was

assessed a twenty-five percent impairment to her hands and would not be able to

do the hand intensive activities that she had enjoyed before, except in a supervisory

capacity, including landscape gardening and some home improvement activities.

In Basco v. Liberty Mutual Insurance Co., 05-143 (La.App. 3 Cir.

8/17/05), 909 So.2d 660, we reversed the jury’s rejection of an award for future

loss of enjoyment of life and awarded the plaintiff $40,000.00 where decreased

10

range of motion and weakness in his left arm and hand resulted in a permanent

impairment of ten to fifteen percent and curtailed the plaintiff’s hunting and fishing

activities and prevented his dancing and volunteer activities. Accordingly, the trial

judge did not abuse his discretion in conservatively increasing the jury’s award

from zero to $15,000.00 for Ms. Sloan’s loss of enjoyment of life.

The record further reveals that Dr. Dugas treated Ms. Sloan with

antidepressant medication for crash-related intrusive thoughts, nightmares, anxiety,

depression, nervousness, sleeplessness, and crying bouts. Dr. Dugas testified that

emotional problems were one of his major concerns initially. These symptoms

were confirmed by friends and co-workers of Ms. Sloan. Accordingly, the trial

judge’s additur of $25,000.00 to the $10,000.00 jury verdict for past and future

mental pain and suffering was proper. See Cluse v. H & E Equip. Servs., Inc., 09-

574 (La.App. 3 Cir. 3/31/10), 34 So.3d 959, writ denied, 10-994 (La. 9/17/10), 45

So.3d 1043 (awarded $40,000.00 for emotional suffering and mental anguish as a

result of wrongful conversion of property); Taylor v. Progressive Sec. Ins. Co., 09-

791 (La.App. 3 Cir. 4/7/10), 33 So.3d 1081, writ denied, 10-1024 (La. 9/17/10), 45

So.3d 1044 (affirmed $125,000.00 for mental anguish to accident victim); Grieff v.

Parish of Jefferson, 98-1262 (La.App. 5 Cir. 12/13/00), 780 So.2d 425, writs

denied, 01-330, 01-341 (La. 4/12/01), 789 So.2d 592, 593 (awarding $52,000.00

for past and future mental anxiety suffered after deputy fell from building’s steps);

Berthelot v. Aetna Cas. and Sur. Co., 623 So.2d 14 (La.App. 1 Cir. 1993)

(awarding $50,000.00 in general damages for posttraumatic stress caused by

electrical shock from beer dispensing trailer at church fair).

Shelter’s Waiver of its Option for a New Trial

Finally, Shelter contends that the trial judge erred in denying Shelter a

new trial as an alternative to granting the additur. We disagree. Counsel for

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Shelter unequivocally consented to the additur as a procedural matter, stating:

“I’m going to consent to the additur under protest and we will waive our right to a

new trial, and we’ll simply go the appeal route or pay [the additur].” Accordingly,

the trial court did not err in finding that Shelter had consented to the additur and

waived its right to a new trial. Notwithstanding, Shelter argues that the trial court

did not get Shelter’s consent in writing earlier in the proceedings. We do not find a

requirement that the consent be in writing.

The pertinent statute, La.Code Civ.P. art. 1814, provides as follows:

If the trial court is of the opinion that the verdict is
so excessive or inadequate that a new trial should be
granted for that reason only, it may indicate to the party
or his attorney within what time he may enter a remittitur
or additur. This remittitur or additur is to be entered only
with the consent of the plaintiff or the defendant as the
case may be, as an alternative to a new trial, and is to be
entered only if the issue of quantum is clearly and fairly
separable from other issues in the case. If a remittitur or
additur is entered, then the court shall reform the jury
verdict or judgment in accordance therewith.

The purpose of this legislation is “[to serve] judicial efficiency by

allowing the parties to avoid a possibly unnecessary new trial and then to seek

appellate review of the correctness of the judgment reformed by additur or

remittitur.” La.Code Civ.P. art. 1814, Comment (b).

Here, the three-day trial ended on February 24, 2011. Following the

jury’s verdict, counsel for Ms. Sloan asked counsel for Shelter if he would consent

to an additur if the trial court was inclined to grant it. Counsel for Shelter would

not commit. Ms. Sloan’s counsel filed a motion for additur. A hearing on additur

was held on March 25, 2011. The transcript of that hearing is forty-eight pages

long. Much argument was heard from counsel for Ms. Sloan in support of additur

on several of the jury’s awards. Likewise, much argument was heard from counsel

for Shelter in opposition to any increase in the jury’s awards. At the end of the

hearing on additur, the trial judge indicated that he was going to increase three of
12

the jury’s awards that he found inadequate and that he would grant the additur as to

those awards, as discussed above. Counsel for Shelter did not object further or ask

for a new trial at that time.

Counsel for Ms. Sloan prepared a “Final Judgment” and sent it to

Shelter’s counsel for review. Counsel for Shelter sent correspondence to counsel

for Ms. Sloan, objecting to the proposed judgment, stating that the judgment

should order Shelter to file a written acceptance or refusal of the additur within a

specified period of time. The letter asked that a new judgment be submitted to

counsel for Shelter which followed these directions.1

Counsel for Ms. Sloan then filed a “Motion to Enter Judgment,”

attached the proposed judgment, and expressed the belief that Shelter had

consented to the additur or waived its objection after the hearing on additur.

Shelter filed an opposition to the plaintiff’s Motion to Enter Judgment, and the trial

court had a hearing on that motion and opposition on April 15, 2011. Finally, at

the end of the April hearing, Shelter specifically stated that it waived the consent to

additur under protest and preserved its right for appeal.

As stated, we find no requirement for written consent. In Accardo v.

Cenac, 97-2320 (La.App. 1 Cir. 11/6/98), 722 So.2d 302, cited by Shelter, the

record did not contain evidence of an official acceptance or rejection of the trial

court’s additur. There, where the defendant drafted the judgment and included the

additur, the appellate court inferred that the defendant was willing to accept additur

“rather than face the alternative of having the matter remanded to the trial court for

the granting of a new trial.” Id. at 307. There, the appellate court stated:

An appeal of a judgment reformed by additur is allowed
by La. C.C.P. art. 2083, by either the party seeking the

1
We note that the judgment described and requested by Shelter would not have been a
final appealable judgment, and it would have been subject to being set aside by the trial court.
See VaSalle v. Wal-Mart Stores, Inc., 01-462 (La. 11/28/01), 801 So.2d 331, holding that a ruling
giving defendants a choice between additur and new trial is an interlocutory ruling, not a final
judgment, as it does not determine the merits of the action.
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reformed judgment or the party adversely affected by the
reformed judgment, even after having consented to such.
Hodapp v. American Indemnity Company, 618 So.2d 32
(La.App. 3 Cir.1993); Karl v. Amoco Production
Company, 492 So.2d 1279 (La.App. 3 Cir.1986). In such
cases, the party is said to have consented under protest,
thereby preserving its right to appeal. See, e.g., Fleming
v. Smith, 93-488 (La.App. 5 Cir. 5/31/94), 638 So.2d
467; Richard v. Domingue, 542 So.2d 797 (La.App. 3
Cir.1989). Accordingly, the trial court did not act
without authority in granting an additur, with the
defendant’s consent, and in denying plaintiffs’ alternative
request for a new trial. Further, the plaintiffs and the
defendant both have the right to appeal the granting of
the additur; thus, the appeal is properly before us.

Id. (footnote omitted).

Similarly, the court in Cox v. Julian, 03-107 (La.App. 5 Cir. 5/28/03),

846 So.2d 986, found that the defendant tacitly agreed to additur where the record

did not indicate that the defendant agreed to or objected to the additur. There, the

court reasoned that the appeal was devolutive and that the defendant had already

paid the judgment amount which included the additur.

In Corbello v. Iowa Production, 01-567 (La.App. 3 Cir. 12/26/01),

806 So.2d 32, aff’d in part and rev’d in part, 02-826 (La. 2/25/03), 850 So.2d 686,

where the record contained no transcript of the hearing on the motions for a

judgment notwithstanding the verdict, or new trial, or remittitur, we stated:

“Nothing in the record indicates that Plaintiffs were given the opportunity to

choose a new trial on the issue, rather than the remittitur. Accordingly, we

conclude that the trial court committed error when it granted the remittitur.” Id. at

39. Conversely here, while the trial court did not specifically ask for written

consent and give Shelter additional time to decide, we do not find reversible error

because opportunity was presented to Shelter at the end of trial, by the plaintiff,

and at the end of the hearing on additur, one month after the jury entered its

verdict, and Shelter did not commit to or ask for a new trial. As previously

indicated, the transcript on the hearing on additur is forty-eight pages long. The

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purpose of additur is judicial economy, as explained above. In this case, Shelter

not only failed to commit to a new trial twice, but Shelter caused an additional

hearing on a “Motion to Enter Judgment” six weeks after the hearing on additur

and over two months after the jury verdict.

Ex-Parte Communications

In answering Shelter’s appeal of the above three issues, Ms. Sloan has

assigned errors of her own. She contends that Shelter engaged in ex-parte

communications with Dr. Mitchell Dugas, and with Dr. Robert Morrow, and that

Shelter’s examination of those physicians at trial should have been excluded by the

trial court. We find that the ex-parte communications were in absolute violation of

La.Code Evid. art. 510,2 which provides a privilege for communications between a

personal injury litigant and her physician, except for trial testimony and

procedurally proper discovery; and, they were in absolute violation of La.Code

2
Louisiana Code of Evidence Article 510 provides in pertinent part:

B. (1) General rule of privilege in civil proceedings. In a non-criminal proceeding, a
patient has a privilege to refuse to disclose and to prevent another person from disclosing a
confidential communication made for the purpose of advice, diagnosis or treatment of his health
condition between or among himself or his representative, his health care provider, or their
representatives.

(2) Exceptions. There is no privilege under this Article in a noncriminal proceeding as to
a communication:

(a) When the communication relates to the health condition of a
patient who brings or asserts a personal injury claim in a
judicial or worker’s compensation proceeding.

....

E. Waiver. The exceptions to the privilege set forth in Paragraph B(2) shall constitute a
waiver of the privilege only as to testimony at trial or to discovery of the privileged
communication by one of the discovery methods authorized by Code of Civil Procedure Article
1421 et seq., or pursuant to R.S. 40:1299.96 or R.S. 13:3715.1.

....

G. Sanctions. Any attorney who violates a provision of this Article shall be subject to
sanctions by the court.

15

Civ.P. art. 1465.1, 3 which mandates the release of a plaintiff’s written medical

records, but prohibits verbal communications between the healthcare provider and

the party requesting the medical records. Notwithstanding the defendant’s

violations of these articles, however, we will not reverse the trial court for the

failure to exclude the testimony of Dr. Dugas and Dr. Morrow in this case, because

the result would be the same.

More specifically, Shelter’s counsel met with Dr. Dugas at some time

prior to taking his deposition, allegedly to obtain a translation of the doctor’s hand

written notes. In Coutee v. Global Marine Drilling Co., 04-1293 (La.App. 3 Cir.

2/16/05), 895 So.2d 631, reversed on Jones Act negligence per se issue, 05-756

(La. 2/22/06), 924 So.2d 112, we found that the trial court had abused its discretion

in allowing the testimony of one of the plaintiff’s treating physicians who accepted

documents from defense counsel, engaged in telephone conversations, and met

with defense counsel. In Coutee, we found that, after the ex-parte communication,

the physician, who had not previously so noted in his records, offered his opinion

that the plaintiff may have intentionally magnified his symptoms. There, we found

that this testimony impacted the trial and that, absent the physician’s testimony, the

case might have been decided differently.

In Coutee, however, where the plaintiff did not learn of the

communication until the day of trial, we distinguished the defendant’s cited case

because the communication took place prior to the physician’s deposition, and

there was ample notice to the plaintiff of the communication and an opportunity to

3
Louisiana Code of Civil Procedure Article 1465.1 provides in pertinent part:

A. Any party may serve upon the plaintiff or upon any other party whose medical
records are relevant to an issue in the case a request that the plaintiff or other authorized person
sign a medical records release authorizing the health care provider to release to the requesting
party the medical records of the party whose medical condition is at issue. The release shall be
directed to a specific health care provider, shall authorize the release of medical records only,
and shall state that the release does not authorize verbal communications by the health care
provider to the requesting party. La.Code Civ.P. art. 1465.1(A).

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prepare a rebuttal.4 Similar to Coutee, in Boutte v. Winn-Dixie Louisiana, Inc., 95-

1123 (La.App. 3 Cir. 4/17/96), 674 So.2d 299, we determined that the physician’s

testimony appeared to have startled the plaintiff’s counsel and cast a cloud over the

plaintiff’s credibility as a witness.

Here, following the ex parte communication before Dr. Dugas’

deposition was taken, counsel for Ms. Sloan had the opportunity to question Dr.

Dugas, during his deposition, regarding the scope of the meeting. Subsequently,

Dr. Dugas testified that Ms. Sloan’s shoulder and thumb injuries were likely

related to her automobile accident. The apparent impact of the ex parte

communication that occurred in Coutee and Boutte does not exist in this case with

regard to Dr. Dugas’ testimony.

The ex parte communications with Dr. Morrow are more problematic

because Shelter wrote to Dr. Morrow and requested a conference and verbal

communications with him in violation of La.Code Civ.P. art. 1465.1. The

correspondence further requested Dr. Morrow’s assistance in cross-examining Dr.

Henderson, whose opinion differed from Dr. Morrow’s. Additionally, counsel for

Shelter consulted with Dr. Morrow outside the courtroom immediately prior to trial

to go over a medical textbook and to discuss his opinion on joint degeneration and

on causation. The trial court allowed Ms. Sloan’s counsel to question Dr. Morrow

regarding this last communication just before the jury was brought in. The trial

court then found that counsel for Shelter did communicate with the doctor, but said

it was not improper this time. He then instructed Shelter’s counsel not to

communicate with any other doctors for the rest of trial without first speaking to

opposing counsel or the court. The trial court then told Dr. Morrow to remain in

the witness box, and he called in the jury.

4
See Hortman v. Louisiana Steel Works, 96-1433 (La.App. 1 Cir. 6/20/97), 696 So.2d 625,
writ denied, 97-1919 (La. 11/7/97), 703 So.2d 1268.
17

Even though Dr. Morrow said that his opinion on causation had not

changed since his deposition, the event in the courthouse surprised Ms. Sloan’s

attorney to some extent and put the court in the position of making a hasty decision

on whether to exclude a doctor’s testimony immediately before the jury was

brought into the courtroom. Notwithstanding, in this case the jury apparently

placed more weight on the testimony of Dr. Dugas, Dr. Vizzy, and Dr. Henderson,

finding that Ms. Sloan’s injuries were causally related to her accident. Therefore,

even if the trial court had excluded the testimony of Dr. Morrow, the result would

be the same.

We find that, in the instance of the ex parte communications with Dr.

Morrow, the written correspondence sought, and the consultation in the courthouse

immediately before trial accomplished, verbal communications with the plaintiff’s

physician that are specifically prohibited by La.Code Civ.P. art. 1465.1. Such

violations need not be prejudicial, as the prohibition of verbal communication in

La.Code Civ.P. art. 1465.1 is absolute. However, as Dr. Morrow’s testimony had

no discernible impact on the jury verdict, we will not reverse on this issue.

Future Medical Expenses

Ms. Sloan further contends that the jury manifestly erred in awarding

only $1,600.00 in future medical expenses and seeks an increase to $10,000.00 for

that element of damages. We agree. Dr. Henderson testified that Ms. Sloan’s first

metacarpal arthroplasty surgery would likely have to be repeated in each hand in

approximately ten years, at a cost of around $11,000.00 per hand. Dr. Morrow

testified that she could develop symptoms that would require another surgery, but

that he thought it was too early to tell. Dr. Porubsky testified that most people do

not have to have the surgery repeated in ten years. At the time of trial, however,

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Ms. Sloan’s left hand was still in a splint from the first surgery, and she had not yet

begun physical therapy on the left hand.

Dr. Henderson testified that Ms. Sloan would be in physical therapy

for approximately six to nine months before maximum medical improvement was

achieved and that her post-surgery physical therapy costs would range from

$5,000.00 to $15,000.00, depending upon how well she did. Based upon the

foregoing, the jury’s award of $1,600.00 for all future medical expenses was an

abuse of discretion.

The award of future medical expenses must be
supported by medical testimony indicating both their
need and probable cost. Holliday v. United Servs. Auto.
Ass’n, 569 So.2d 143 (La.App. 1 Cir. 1990). “However,
when the need for future medical care has been
demonstrated but cost is not susceptible of determination,
the court may make a reasonable award.” Id. at 146
(citing Guillory v. Avondale Shipyards, Inc., 448 So.2d
1281 (La.1984), and Jordan v. Travelers Ins. Co., 257
La. 995, 245 So.2d 151 (1971)).

Thibeaux v. Trotter, 04-482, p. 9 (La.App. 3 Cir. 9/29/04), 883 So.2d 1128, 1133,

writ denied, 04-2692 (La. 2/18/05), 896 So.2d 31.

Accordingly, we amend the jury’s award of $1,600.00 and increase

that award by $8,400.00, for a total award of $10,000.00 for future medical

expenses.

Past Wage Loss & Loss of Future Earning Capacity

Ms. Sloan contends that the jury manifestly erred in awarding only

$11,000.00 in past lost wages, and she seeks an increase to $40,000.00 for that

element of damages. We must disagree.

Special damages for lost wages must be proved with reasonable

certainty. Skipper v. Barry, 99-1433 (La.App. 3 Cir. 3/15/00), 762 So.2d 56. To

recover for actual wage loss, a plaintiff must prove positively that she would have

been earning wages but for the accident in question. It is the plaintiff’s burden to

19

prove the amount of work missed due to injuries caused by the accident. Boyette v.

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

At the time of the accident, Ms. Sloan was a part-time stress counselor

with Volunteers of America, working one-on-one with victims of Hurricane

Katrina. She began working with them in November of 2005. In 2006, she made

approximately $2,000.00 per month. In 2007, she was making $20.00 per hour and

averaging 93.57 hours per month. Ms. Sloan’s position with Volunteers of

America was funded by grants. The organization began phasing out the stress

counselor positions and dropped Ms. Sloan from the program on October 30, 2007.

For the ten years prior to her employment with Volunteers of America in

November of 2005, Ms. Sloan testified that she restored houses and performed

healing touch therapy. However, during this period, she did not file tax returns and

was listed as a dependent on her partner’s tax returns. Ms. Sloan testified that she

was listed as a dependent because she was supported by her partner.

The jury also heard testimony that by July of 2007, after the accident

in April, Ms. Sloan was traveling to Arkansas to supervise the building of a cabin

there. Accordingly, the jury apparently found Ms. Sloan’s lost earnings as a result

of the accident speculative except for the wages she could have earned at

Volunteers of America between the accident in April and the end of the counseling

position in October of 2007. Because there is a reasonable basis for the jury’s

award, we will not disturb it.

Finally, Ms. Sloan contends that the jury manifestly erred in not

awarding any damages for her loss of future earning capacity. She seeks

$12,000.00 for six months of post-trial therapy and disability to her left hand,

which was still in a splint at the time of trial. Again, we must disagree.

In determining a proper award for loss of future wages, the fact finder

considers the plaintiff’s pre-injury physical condition, work history, consistency of

20

the plaintiff’s work, the amount the plaintiff could have earned but for the accident,

and the probability that the plaintiff would have continued to earn wages over the

remainder of her life. Dugas v. Derouen, 01-1397 (La.App. 3 Cir. 7/3/02), 824

So.2d 475, writ denied, 02-2131 (La. 11/15/02), 829 So.2d 426.

While Ms. Sloan’s hands suffered some impairment, there was

medical testimony that she could supervise landscaping and the physical types of

work that she had done in the past, and that she could perform the healing touch

therapy. However, while Ms. Sloan had gotten to level five of the healing touch

training in the 1980’s, there was no proof of income from that type of work in the

ten years before the accident. Her desires to obtain a license in reflexology, which

is more hand intensive, were speculative. Moreover, Ms. Sloan was successfully

supervising property development and the building of a cabin in Arkansas in July

of 2007 following the accident in April. While that property was allegedly

donated, and there was no proof of income from it, the jury could have reasonably

determined that Ms. Sloan was not prevented from working and earning income as

a result of the accident.

V.

CONCLUSION

Based upon the foregoing, we amend the trial court judgment to

increase the award of future medical expenses from $1,600.00 to $10,000.00, and

we affirm the judgment in all other respects. Costs of this appeal are assessed to

the defendant.

AFFIRMED AS AMENDED.

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