Elizabeth Falterman v. Amy Schunemeyer, Dpm

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-216

ELIZABETH FALTERMAN

VERSUS

AMY SCHUNEMEYER, DPM, ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 107,387
HONORABLE CHARLES L. PORTER, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Elizabeth A. Pickett, James T. Genovese, and Phyllis M. Keaty,
Judges.

REVERSED AND REMANDED.

Patrick J. Briney
Hallie P. Coreil
Briney Foret Corry, LLP
Post Office Box 51367
Lafayette, Louisiana 70505-1367
(337) 237-4070
Counsel for Defendants/Appellants:
Podiatry Insurance Company of America
Amy Schunemeyer, DPM

Nadia de la Houssaye
Jones Walker LLP
Post Office Drawer 3408
Lafayette, Louisiana 70502-3408
(337) 593-7600
Counsel for Defendant/Appellant:
Louisiana Patient’s Compensation Fund

Scott H. Frugé
deGravelles, Palmintier, Holthaus & Frugé, L.L.P.
618 Main Street
Baton Rouge, Louisiana 70801
(225) 344-3735
Counsel for Plaintiff/Appellee:
Elizabeth Falterman

KEATY, Judge.

In this medical malpractice case, Elizabeth Falterman (Plaintiff),1 filed suit

against Dr. Amy Schunemeyer (Defendant), a podiatrist, alleging that the

revisional bunionectomy that Defendant performed on her right foot in December

2002 was improperly performed and caused damages to her right foot and to other

parts of her body, necessitating corrective surgery and leaving her with permanent

physical disability and the need for further corrective surgery.2

After a trial, the jury determined that Defendant breached the applicable

standard of care and that such breach caused or contributed to the injury to Plaintiff.

The jury awarded Plaintiff $15,000 in past medical expenses. Thereafter, Plaintiff

filed a motion for additur and/or new trial regarding the alleged inadequacy of the

damages award. Defendant also filed a motion for new trial on the grounds that

Plaintiff’s counsel had attacked Dr. Schunemeyer’s credibility in his rebuttal

closing argument, and, because its request to present a surrebuttal closing argument

was denied, Dr. Schunemeyer was “unfairly deprived of the opportunity to defend

her credibility against the attack before the jury.”

Following a hearing, the trial court rendered judgment denying Defendant’s

motion for new trial, granting Plaintiff’s motion for additur, maintaining the jury’s

verdict, and awarding Plaintiff an additional $100,000 for past and future pain and

suffering, $75,000 for past and future mental pain and suffering, and $75,000 for

past and future loss of enjoyment of life. The judgment cast Defendant with

liability for $100,000 of Plaintiff’s damages and the Louisiana Patient’s
1
Although Plaintiff got married and changed her last name to Gondron before this matter
went to trial, she will be referred to as “Ms. Falterman” in this opinion.
2
The petition also named Dr. Schunemeyer’s medical malpractice insurer, Podiatry
Insurance Company of America (PICA), as a defendant. Thus, sometimes when we say
“Defendant” we are referring to Dr. Schunemeyer and PICA.

Compensation Fund (the PCF) was cast with liability for the remaining $165,000

of Plaintiff’s damages. Defendant suspensively appealed3 and is now before this

court asserting that the trial court erred: 1) in granting Plaintiff’s motion for

additur absent Defendant’s consent; 2) in usurping the jury’s role of ultimate fact

finder and judge of credibility; 3) in failing to award the lowest reasonable amount

upon granting Plaintiff’s motion for additur; and 4) in choosing which portions of

the verdict to accept (liability and special damages) and which to reject (general

damages), yet denying Defendant’s motion for new trial. For the following

reasons, we reverse and remand.

DISCUSSION

Additur

Louisiana Code of Civil Procedure Article 1814, entitled “Remittitur or

additur as alternative to new trial; reformation of verdict,” 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.

Comment (b) to Article 1814 states that “[i]t serves 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.”

[T]he jurisprudence is well settled that the Louisiana statutory scheme
requires the consent of the party adversely affected by an additur or
remittitur. That party is offered an opportunity, when asked by the
trial judge, to agree to a change in judgment, thereby avoiding the

3
Although the PCF also filed a motion to suspensively appeal from the final judgment
rendered in this matter, it did not file an appellate brief in this court.

2

expense and delay of a new trial. The order of an additur or remittitur
is therefore contingent; if the party does not agree to the change, he
elects to submit to a new trial.

Accardo v. Cenac, 97-2320, p. 7 (La.App. 1 Cir. 11/6/98), 722 So.2d 302, 306.

Defendant asserted on appeal that additur was improperly granted because

she did not consent to it. In her original appellee brief, Plaintiff cited a portion of

the trial transcript where she noted that it was Defendant’s counsel who “not only

consented but actually requested the additur” at the hearing on post-trial motions.

In a reply brief, Defendant claimed that the statement upon which Plaintiff relied

was “erroneously attributed to Defense counsel.” Upon recognition of the error,

Defendant filed a motion to correct the appellate record. The motion was granted

on April 28, 2014, and a supplemental record was filed in this court containing a

corrected copy of the December 21, 2012 transcript to indicate that the request for

additur was made by counsel for Plaintiff. Thereafter, Plaintiff filed a

supplemental appellee brief wherein she consented to the correction of the

appellate record. Nevertheless, citing Accardo, Plaintiff contends that this court

could find that Defendant did not need to officially accept or reject the additur and

that the judgment reformed by the additur is nonetheless properly before this court

on appeal.

In Accardo, the appellate court noted “that the judgment submitted by the

defendant for the signature of the trial court contained the amount of additur,

indicating that the defendant was willing to accept the 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. Thus, it found that “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.” Id.

3

Accardo is clearly distinguishable from the instant matter. Here, Defendant

filed a motion for new trial after the original judgment was rendered on the jury

verdict. In addition, Defendant filed an opposition to Plaintiff’s motion for additur

and/or new trial, and it argued against the granting of those motions at the

December 21, 2012 hearing on post-trial motions. At the conclusion of that

hearing, the trial court denied Defendant’s motion for new trial and took Plaintiff’s

motion for additur and/or new trial under advisement. Thereafter, Plaintiff

submitted a judgment to the trial court reflecting that Plaintiff’s motion for additur

was being granted. Counsel for Defendant’s signature appeared on that judgment

indicating that it had been approved as to form. Because defense counsel

consistently maintained his client’s opposition to Plaintiff’s motion for additur, we

conclude that the trial court violated the dictates of La.Code Civ.P. art. 1814 by

granting additur in favor of Plaintiff without giving Defendant the option of

accepting the reformed judgment or instead choosing to submit to “the expense and

delay of a new trial.” Id. at 306. Accordingly, this matter is remanded to the trial

court for Defendant to be given an opportunity to choose a new trial rather than to

accept the trial court’s proposed additur. As a result, the remainder of Defendant’s

assignments of error are moot.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed, and

this matter is remanded to the trial court for Dr. Amy Schunemeyer to be given an

opportunity to choose a new trial rather than to accept the trial court’s proposed

additur. All costs of this appeal are assessed to Elizabeth Falterman.

REVERSED AND REMANDED.

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