Gene Bordelon, Jr. v. Cutting Edge

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 14-864

GENE BORDELON, JR., ET AL.

VERSUS

CUTTING EDGE, ET AL.

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2012-8784-A
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

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DAVID KENT SAVOIE
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, James T. Genovese,
and David Kent Savoie, Judges.

AFFIRMED.

Genovese, J., concurs in part, dissents in part, and assigns written reasons.

Douglas Lanaux Grundmeyer
Derek Anthony Walker
Chaffe McCall, L.L.P.
1100 Poydras St., Suite 2300
New Orleans, LA 70163-2300
(504) 585-7000
COUNSEL FOR DEFENDANTS/APPELLANTS:
CMHC, Inc.
Leona Hayes
Cutting Edge

Ian Alexander Macdonald
Jones Walker
P. O. Drawer 3408
Lafayette, LA 70502-3408
(337) 593-7600
COUNSEL FOR DEFENDANTS/APPELLANTS:
CMHC, Inc.
Leona Hayes
Cutting Edge

Brian M. Caubarreaux
Robert M. Marionneaux, Jr.
Emily G. Meche
Brian Caubarreaux & Associates
P. O. Box 129
Marksville, LA 71351
(318) 253-0900
COUNSEL FOR PLAINTIFFS/APPELLEES:
Gene Bordelon, Jr.
Rhonda Mayeux

SAVOIE, Judge.

After a jury trial, plaintiff, Gene Bordelon, was awarded $2,325,000 in

damages. Defendants, Cutting Edge, CMHC, Inc. and Leona Hayes, now appeal

the jury verdict. In his Answer to Appeal, Gene Bordelon requests the judgment

be modified to increase the amount of general damages from $0 to $50,000 for

permanent scarring and disfigurement. For the following reasons, we affirm.

ASSIGNMENTS OF ERROR

1. The jury manifestly erred by concluding that plaintiff proved
medical causation.

2. The district court prejudicially erred by excluding the testimony
and report of defendants’ expert in biomechanics.

3. The jury abused its discretion in awarding grossly excessive
damages.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Gene Bordelon, was involved in a rear-end collision with Leona

Hayes on April 27, 2012, wherein he sustained injuries to his back. Mr. Bordelon

filed a personal injury action against Leona Hayes and the Cutting Edge, CMHC,

Inc. (her employer). The parties stipulated that Mrs. Hayes, who was acting in the

course and scope of her employment, was solely responsible for the accident. The

issues of medical causation and quantum remained in dispute.

After a trial by jury, the jury awarded Gene Bordelon a lump sum amount of

$375,000 in special damages. General damages were awarded as follows:

Past Mental Pain and Suffering $200,000
Future Mental Pain and Suffering $300,000
Past Physical Pain and Suffering $200,000
Future Physical Pain and Suffering $350,000
Permanent Scarring and Disfigurement $0
Past Loss of Enjoyment of Life $200,000
Future Loss of Enjoyment of Life $200,000
Permanent Disability $500,000

The defendants filed a Motion for Judgment Notwithstanding the Verdict

and, alternatively, a Motion for New Trial and/or Remittur [sic], asserting that the

jury verdict was an abuse of discretion. The trial court denied the motion.

The defendants filed this appeal, alleging the jury award was abusively high.

They also contend Gene Bordelon did not prove medical causation, and the trial

court erred in excluding Dr. James Funk as an expert witness. Mr. Bordelon

answered the appeal and asserted the lack of an award for permanent scarring and

disfigurement was grossly inadequate, considering the evidence.

LAW AND DISCUSSION

Standard of Review

We review a jury’s findings of fact utilizing a manifest error

standard. Rosell v. ESCO, 549 So.2d 840 (La.1989). After reviewing the record in

its entirety, we must find that no reasonable factual basis exists for the jury’s

finding and that the finding is clearly wrong in order to reverse the jury’s

award. Stobart v. State, through Dep’t of Transp. and Dev., 617 So.2d 880

(La.1993). “[R]easonable 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, 549 So.2d at

844.

“[The causation] of a person’s injuries is a question of fact which should not

be reversed on appeal absent manifest error.” Housley v. Cerise, 579 So.2d 973,

979 (La.1991).

“In the assessment of damages in cases of offenses, quasi offenses, and quasi

contracts, much discretion must be left to the judge or jury.” La.Civ.Code art.

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2324.1. The jury’s award of damages is a factual determination entitled to great

deference on review. Guillory v. Lee, 09-75 (La. 6/26/09), 16 So.3d 1104. We

will not disturb an award of damages unless we find the jury abused its very great

discretion. Rando v. Anco Insulations Inc., 08-1163 (La. 5/22/09), 16 So.3d 1065.

Causation

It is the defendants’ contention that Gene Bordelon did not prove it was

more probable than not that the rear-end collision of April 27, 2012, caused his

injuries. The defendants argue that his obesity and smoking habit caused the lower

level non-fusion.

On January 25, 2015, approximately three months before the vehicle

accident, Gene Bordelon had a two-level posterior lumbar fusion involving the L-

5/S-1 discs performed by Dr. Oberlander. To aid in the fusion, screws were

surgically implanted to act as an internal clamp pulling the bones together. Six

days after the surgery, Mr. Bordelon had an x-ray taken that showed no

abnormality in the hardware. At Mr. Bordelon’s February 7, 2012 post-operative

appointment with Dr. Oberlander, the doctor reported that Mr. Bordelon was doing

very well, and his back was improving. On March 6, 2012, the appointment notes

show that Mr. Bordelon was doing well and another x-ray was taken. This x-ray

also showed no abnormalities in the hardware.

The automobile accident occurred on April 27, 2012. Mr. Bordelon had

another post-operative appointment on May 22, 2012. At that time, he had an x-

ray taken that showed a broken pedicle screw in the lower level of the fusion. Mr.

Bordelon did not see Dr. Oberlander again until September of 2012. Dr.

Oberlander testified that he was hoping the bones would fuse despite the broken

screw.

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On September 25, 2012, Mr. Bordelon had a CAT scan taken which showed

both lower level screws were fractured. Dr. Oberlander testified that, after laying

the more sophisticated CAT scan over the x-ray, it was his opinion that both

screws were broken on May 22, 2012, the first visit after the car wreck. Dr.

Oberlander further testified that, if smoking caused the non-union, it would have

affected the fusion at both levels. He stated that he has surgically implanted

thousands of screws and has never before seen this brand of screw break. Finally,

Dr. Oberlander testified that it was more probable than not that Mr. Bordelon’s

lower level screw broke as a result of the April 27, 2012 rear-end collision.

It is not for us to weigh the testimony of the witnesses or to make a

determination regarding their credibility. Rather, we must determine whether there

is evidence for which a reasonable basis exists for the jury’s findings. After a

review of the record, we find a reasonable basis does exist, and the finding is not

clearly wrong.

Exclusion of Dr. James Funk

In the defendants’ Assignment of Error Number Two, they allege the trial

court erred in excluding the testimony and report of defendants’ expert in

biomechanics, Dr. James Funk. This issue was previously reviewed by this court.

Prior to trial, the trial court granted the plaintiff’s Motion in Limine to

exclude the expert witness. The defendants filed an Application for Supervisory

Writ from said ruling on March 31, 2014. On April 3, 2014, this court, in a

unanimous decision, denied the writ and stated, “[w]e find no abuse of discretion

in the trial court’s ruling.”

The plaintiff contends the “law of the case” doctrine applies to the writ

ruling and cannot be disturbed. In Kaleel v. Division Transport, 00-803, pp. 1-2

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(La. App. 3 Cir. 8/23/00), 769 So.2d 110, 111, writ denied, 00-2976 (La.

12/15/00), 777 So.2d 1232 (citations omitted), this court set forth an extensive

discussion regarding the “law of the case” doctrine as follows:

The supreme court has defined the doctrine of the law of the
case as follows:

The law of the case principle relates to (a) the binding force of
trial court rulings during later stages of the trial, (b) the conclusive
effects of appellate rulings at the trial on remand, and (c) the rule that
an appellate court will ordinarily not reconsider its own rulings of law
on a subsequent appeal in the same case.

This court has further explained the law of the case doctrine as
follows:

The law of the case doctrine “recognizes the binding force of
trial court rulings during later stages of the trial....” The reasons for
this doctrine are: (1) avoidance of indefinite litigations; (2)
consistency of results in same litigation; (3) essential fairness between
the parties; and, (4) judicial efficiency.

“[T]he doctrine is discretionary and should not be applied
where it would effectuate an obvious injustice or where the former
appellate decision was clearly erroneous.”

Moreover, the doctrine applies with equal force to writ
decisions as it does to judgments rendered at the conclusion of the
appellate process.

On appeal, defendants contest the same ruling that was presented in their

writ application and have not presented any new evidence or argument for our

consideration. As such, we find the “law of the case” doctrine applies. We find no

merit in this assignment of error.

Excessive Damages

A jury is given great discretion in its assessment of both general and special

damages. La.Civ.Code art. 2324.1. A court of appeal should rarely disturb an

award of damages. Rachal v. Brouillette, 12-794 (La.App. 3 Cir. 3/13/13), 111

So.3d 1137, writ denied, 13-690 (La. 5/3/13), 113 So.3d 217. “It is only when the

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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 v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert

denied, 510 U.S. 1114, 114 S.Ct. 1059 (1994).

“Special damages are those which theoretically may be determined with

relative certainty, including medical expenses and lost wages.” Monte v. State

Farm Mut. Auto. Ins. Co., 13-979, p.13 (La.App. 3 Cir. 5/21/14), 139 So.3d 1139,

1148, writ denied, 14-1289 (La. 9/26/14), 149 So.3d 267. “In reviewing a jury’s

factual conclusions with regard to special damages, [an appellate court] must

satisfy a two-step process based on the record as a whole: there must be no

reasonable factual basis for the trial court’s conclusions, and the finding must be

clearly wrong.” Monte, 139 So.3d at 1148. “A general damage award cannot be

fixed with pecuniary exactitude.” Id. at 1150. “An appellate court may disturb a

damages award only after an articulated analysis of the facts discloses an abuse of

discretion.” Id.

Regarding the special damages award, the jury awarded a lump sum amount

of $375,000 to the plaintiff. This award included damages for past medical

expenses, future medical expenses, lost wages and future lost wages. The medical

expenses in this case are extensive. As a result of the broken screws, Mr. Bordelon

underwent a second lumbar re-fusion surgery shortly before trial. Dr. Oberlander

testified that the cost of this procedure is approximately $100,000. In the future,

Mr. Bordelon will undergo another surgery in order to remove the broken posterior

lumbar hardware. Dr. Oberlander testified this surgery will cost slightly less than

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the lumbar fusion. Mr. Bordelon had numerous pre- and post-operative doctor

visits in addition to prescription medication, x-rays, etc.

Mr. Bordelon was out of work in his job as supervisor at the Louisiana State

Penitentiary for approximately eight months as a result of the accident. This

equates to lost wages in the amount of $41,238.40. Mr. Bordelon testified that he

also lost 1,628 hours of leave time accrued during his employment at Angola

totaling $43,907.16. As a result of the future surgery, Mr. Bordelon will be totally

restricted from work for approximately two months, which is approximately

$9,000 in future lost wages.

Based on the evidence before us, we find a reasonable factual basis for the

jury’s award of special damages and do not find it clearly wrong. Consequently,

we find no abuse of discretion in the jury’s award.

Regarding the general damages award, the jury awarded the plaintiff

$1,950,000 in total general damages. “Every act whatever of man that causes

damage to another obliges him by whose fault it happened to repair

it.” La.Civ.Code art. 2315; Arabie v. Citgo Petroleum Corp., 10-334, p. 9

(La.App. 3 Cir. 10/27/10), 49 So.3d 985, 992, writ denied, 10-2618 (La. 5/4/12),

88 So.3d 449. “[A] defendant takes his victim as he finds him and is responsible

for all natural and probable consequences of his tortious conduct.” Arabie, 49

So.3d at 992 (quoting Am. Motorist Ins. Co. v. Am. Rent-All, Inc., 579 So.2d 429,

433 (La.1991)). “[W]hen the defendant’s tortious conduct aggravates a pre-

existing injury or condition, he must compensate the victim for the full extent of

this aggravation.” Id. (quoting Lasha v. Olin Corp., 625 So.2d 1002, 1003

(La.1993)).

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Gene Bordelon underwent a two-level posterior lumbar surgery

approximately three months before the subject accident. Mr. Bordelon testified

that the impact this surgery had on his back pain was like “night and day.” He

stated he felt like a new man. Clearly, the surgery was a success. At the time of

the rear-end collision, he testified he heard a “pop” in his back and felt immediate

pain. From this point on, he testified he was “miserable.” His back pain had

returned. He further testified that the second lumbar re-fusion surgery was “ten

times worse than the first surgery.” He was “sore from his head to his legs.” He

testified, “everything hurt.” He stated that, after the second surgery, he had to

wear a back brace every day and, also, a bone stimulator. He was required to wear

these for at least four hours, every day, for at least three months post-surgery. He

testified he underwent painful testing associated with the surgery. He was very

limited in what tasks he could perform. He testified he had to have someone bathe

him because he could not bathe himself. He was on pain medication and still takes

medication for depression.

At trial, Dr. Oberlander stated that Mr. Bordelon would undergo another

invasive surgery, post-trial, to remove the broken posterior lumbar hardware due to

Mr. Bordelon’s constant pain and discomfort. Dr. Oberlander testified that Mr.

Bordelon can no longer lift anything over forty pounds and that his pain and

physical limitations are permanent.

While the jury’s award of general damages may be on the higher end, we

cannot say that it amounts to an abuse of discretion. Based on the evidence before

us, the jury was reasonable in determining that $1.95 million was an appropriate

amount to award the plaintiff.

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Answer to Appeal

In the plaintiff’s answer to appeal, he argues the permanent scarring and

disfigurement award should be modified. The jury failed to award any money to

the plaintiff for this item of general damages. After a review of the record, we will

not disturb the jury’s lack of an award for permanent scarring and disfigurement.

JNOV

“In consideration of a motion for JNOV, the trial court determines whether

the facts and inferences point so strongly and overwhelmingly in favor of one party

that reasonable persons could not arrive at a contrary verdict.” Landry v. PSA of

Lafayette, LLC, 12-277, p. 14 (La.App. 3 Cir. 11/7/12), 120 So.3d 707, 717. “The

trial court is required to deny the request for JNOV if evidence opposing the

motion ‘is of such quality and weight that reasonable and fair-minded persons in

the exercise of impartial judgment might reach different conclusions.’” Id. The

trial court may not evaluate the credibility of witnesses. Id. Further, the trial court

must resolve all reasonable inferences or factual questions in favor of the non-

moving party. Id.

Given that we have affirmed the jury verdict in every respect, we also affirm

the trial court’s denial of the motion for JNOV.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs

of this appeal are assessed to Cutting Edge, CMHC, Inc. and Leona Hayes.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
Rules—Courts of Appeal. Rule 2–16.3.

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STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-864

GENE BORDELON, JR., ET AL.

VERSUS

CUTTING EDGE, ET AL.

GENOVESE, J., concurs in part, dissents in part, and assigns the following

reasons:

I agree with the majority in affirming the finding of medical causation and in

affirming the jury’s award of special damages. The evidence in the record

presented to the jury establishes a reasonable factual basis for a finding of medical

causation and for the jury’s award as to special damages; hence, I concur in that

specific award.

I disagree as to the entirety of the jury’s general damage award and as to its

failure to award general damages for permanent scarring and disfigurement. In my

view, I find the overall damages for pain and suffering overlap and are, therefore,

excessive and should be reduced in part. I likewise find a disparity in the loss of

enjoyment of life award. The jury’s awards for past and future loss of enjoyment

of life were the same amounts. According to the evidence presented to the jury,

the past loss of enjoyment of life does not and cannot logically be the same amount

as the future loss of enjoyment of life for this approximately forty-year-old

plaintiff. Plaintiff’s future loss of enjoyment of life would obviously have to be

greater than the loss of enjoyment of life from the time of the accident in question

to the date of trial. Though I do not find the $200,000 award for plaintiff’s future

loss of enjoyment of life to be excessive, it stands to reason that the past loss of

enjoyment of life would be less and should be reduced accordingly and

proportionately.

Finally, I disagree with the majority’s failure to award any damages for the

six-inch scar on plaintiff’s abdomen as a result of his two-level fusion. The jury

gave zero damages for permanent scarring and disfigurement. It is undisputed that

he has the six-inch permanent scar on his abdomen as a result of his surgery.

Therefore, he is entitled to a nominal award for permanent scarring and

disfigurement. There is a rational and reasonable factual basis in the record to

support an award for permanent scarring and disfigurement. Conversely, there is

no reasonable and factual basis in the record to disallow same. In my view, the

jury was manifestly erroneous in failing to award plaintiff any damages for

permanent scarring and disfigurement.

For these reasons, I concur in part and dissent in part.

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