Maurice Fontenot, Et Ux. v. Jarred Levar Stevens

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-277

MAURICE FONTENOT, ET AL.

VERSUS

JARRED LEVAR STEVENS, ET AL.

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2009-1900
HONORABLE SHARON D. WILSON, DISTRICT JUDGE

**********

PHYLLIS M. KEATY
JUDGE

**********

Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Michael R. Sistrunk
Matthew J. Garver
Lou Anne Milliman
Lynda A. Tafaro
McCranie, Sistrunk, Anzelmo,
Hardy, McDaniel & Welch
195 Greenbriar Boulevard, Suite 200
Covington, Louisiana 70433
(504) 831-0946
Counsel for Defendants/Appellants:
Republic Fire and Casualty Insurance Company
Carl’s Rentals
Jarred Levar Stevens

Randall E. Hart
Aaron Broussard
Steven Broussard
Broussard & Hart, LLC
1301 Common Street
Lake Charles, Louisiana 70601
(337) 439-2450
Counsel for Plaintiffs/Appellees:
Maurice Fontenot
Susan Melton Fontenot

KEATY, Judge.

Defendants/Appellants, Jarred Levar Stevens, Carl’s Rentals, and Republic

Fire and Casualty Insurance Company, appeal the trial court’s judgment in favor of

Plaintiffs/Appellees, Maurice Fontenot and Susan Melton Fontenot. For the

following reasons, the trial court’s judgment is affirmed.

FACTS & PROCEDUREAL HISTORY

Susan sustained injuries following a rear-end motor vehicle collision on

March 4, 2009. She was stopped at a traffic signal when Jarred, who was driving a

furniture delivery truck, hit her vehicle from behind. Thereafter, Susan suffered

from neck, back, and shoulder pain.

Susan and her husband, Maurice, filed suit against Defendants. Defendants

stipulated to liability, and Jarred was voluntarily dismissed on November 3, 2011.

Following a jury trial on damages which occurred on May 6-10, 2013, the jury

returned a $500,500.00 verdict as follows: past medical expenses—$235,500.00;

future medical expenses—$100,000.00; past and future physical pain and

suffering—$150,000.00; past and future mental pain and suffering—$0.00; loss of

enjoyment of life—$0.00; and loss of consortium—$15,000.00.

Plaintiffs filed a Motion for Judgment Notwithstanding the Verdict (JNOV),

which was granted following a July 3, 2013 hearing wherein Judge Wilford Carter

increased the verdict to $1,075,417.90, as follows: past medical expenses—

$235,417.90; future medical expenses—$240,000.00; past and future physical and

mental pain and suffering—$450,000.00;1 loss of enjoyment of life—$100,000.00;

and loss of consortium—$50,000.00. The JNOV was signed on August 13, 2013.
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Although the jury verdict awarded general damages in the amount of $150,000.00 for
past and future physical pain and suffering, and $0.00 for past and future mental pain and
suffering, Judge Carter combined the general damage award for both past and future physical
and mental pain and suffering and increased it to $450,000.00.

Defendants appealed the JNOV based upon prematurity, alleging that the trial

court failed to sign the judgment on the jury verdict prior to the JNOV. On appeal,

this court found that the trial court lacked jurisdiction and remanded it with

instructions to enter judgment in conformity with the jury’s verdict. Fontenot v.

Stevens, 14-95, 14-317, 14-607, 14-635 (La.App. 3 Cir. 12/10/14), __ So.3d __

(unpublished opinions), writ denied, 15-75 (La. 4/2/15), 163 So.3d 795.

On April 29, 2015, Judge Sharon Wilson, who replaced Judge Carter, signed

a Judgment conforming to the jury’s verdict. Plaintiffs filed another Motion for

JNOV which was heard on September 9, 2015, and taken under advisement. The

trial court issued its Written Reasons for Judgment on November 6, 2015, and

signed the written Judgment on December 28, 2015. Therein, the trial court, Judge

Wilson, granted the JNOV.

Defendants appeal the trial court’s grant of JNOV and the trial court’s

increased damage award by asserting the following assignments of error:

1. The standard on JNOV is whether the facts and inferences point
so strongly in favor of plaintiffs that reasonable persons could
not reach different conclusions. Judge Sharon Wilson erred as
a matter of law in not applying this standard and in giving great
deference to Judge Carter rather than the jury.

2. The trial court erred in granting plaintiffs’ Motion for JNOV,
and doubling the jury’s award, because “there is evidence
opposed to the motion which is of such quality and weight that
reasonable and fair-minded men in the exercise of impartial
judgment might reach different conclusions.”

STANDARD OF REVIEW

Our supreme court, in Anderson v. New Orleans Public Service, Inc., 583

So.2d 829, 832 (1991), stated the following:

A JNOV is warranted when the facts and inferences point so strongly
and overwhelmingly in favor of one party that the court believes that
reasonable men could not arrive at a contrary verdict. The motion

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should be granted only when the evidence points so strongly in favor
of the moving party that reasonable men could not reach different
conclusions, not merely when there is a preponderance of evidence for
the mover. If there is evidence opposed to the motion which is of
such quality and weight that reasonable and fair-minded men in the
exercise of impartial judgment might reach different conclusions, the
motion should be denied. Scott [v. Hosp. Serv. Dist. No. 1 of St.
Charles Parish, 496 So.2d 270 (La.1986)]. In making this
determination, the court should not evaluate the credibility of the
witnesses, and all reasonable inferences or factual questions should be
resolved in favor of the non-moving party.

In reviewing a JNOV, the appellate court must first determine if
the trial court erred in granting the JNOV. This is done by using the
aforementioned criteria just as the trial judge does in deciding whether
to grant the motion or not, i.e. do the facts and inferences point so
strongly and overwhelmingly in favor of the moving party that
reasonable men could not arrive at a contrary verdict? If the answer
to that question is in the affirmative, then the trial judge was correct in
granting the motion. If, however, reasonable men in the exercise of
impartial judgment might reach a different conclusion, then it was
error to grant the motion and the jury verdict should be reinstated.

In the case before us, we will look to each element of the judgment and

review whether the trial court’s grant of the JNOV was proper. We will thereafter

review those items where we find the grant of the JNOV proper to determine

whether the amount set by the trial court was appropriate.

I. Trial Court - Standard of Review

In its first assignment of error, Defendants contend that Judge Wilson erred

as a matter of law by not applying the applicable JNOV standard. Defendants

argue that Judge Wilson inappropriately gave deference to Judge Carter rather than

the jury and failed to make an independent record to determine whether the JNOV

was warranted. In support, Defendants point to Judge Wilson’s Written Reasons

for Judgment (emphasis added):

As the current judge presiding who was not afforded the
opportunity to hear the testimony of the witnesses, or the presentation
of evidence, great deference is given to the trial judge. The trial
judge is in a better position to make a damage assessment. The trial

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judge hears the testimony, views the evidence, and is able to evaluate
the credibility of the witnesses. Once the jury verdict is set aside
under the strict JNOV standards, the trial court is then the trier of fact.

Defendants’ argument is without merit as the record shows that Judge

Wilson reviewed and considered the record as per the JNOV hearing wherein she

stated:

It’s appropriate that I take this case under advisement and review
everything including the entire record and all briefs. And some of the
things that you all pointed to me that I didn’t review before coming in
today. So I will issue a ruling on a self-imposed deadline . . . in
twenty days[.]

It took longer than twenty days for Judge Wilson to review the record, evidence,

and briefs since she issued her Written Reasons for Judgment on November 6,

2015, which was fifty-eight days following the September 9, 2015 hearing.

The filings by both parties in this matter show that Judge Wilson was

directed to the most important evidence. After viewing the entire record, she set

the jury’s verdict aside. “Once the jury verdict is set aside under the strict JNOV

standards, the trial court is then the trier of fact.” Anderson, 583 So.2d at 834.

After setting the verdict aside, Judge Wilson agreed that Judge Carter was in a

better position to determine quantum, and it was not error for her to reach the same

conclusion as Judge Carter. Accordingly, Defendants’ first assignment of error is

without merit.

II. Grant of JNOV

In its second assignment of error, Defendants contend that the trial court

erred in granting Plaintiffs’ Motion for JNOV and doubling the jury’s award

because reasonable men in the exercise of impartial judgment could reach different

conclusions. For the following reasons, we find no merit in Defendants’ argument.

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A. Past and Future Physical Pain and Suffering

In this matter, the jury awarded $150,000.00 for past and future physical

pain and suffering, which the trial court increased on JNOV. To determine

whether the trial court erred, Anderson, 583 So.2d at 834, provides:

The appellate court, in determining whether the trial court erred
in granting the JNOV as to quantum, once again uses the criteria set
forth in Scott, [496 So.2d 270], i.e., could reasonable men in the
exercise of impartial judgment differ as to the fact that the jury award
was either abusively high or abusively low. If the answer is in the
affirmative, then the trial court erred in granting the JNOV, and the
jury’s damage award should be reinstated. On the other hand, if the
answer is in the negative, then the trial court properly granted the
JNOV, and its damage award based on its independent assessment of
the damages is the judgment of the trial court which is reviewed on
appeal under the constraints of Coco, [v. Winston Indus., Inc., 341
So.2d 332 (La.1976)].

The medical evidence and testimony in this case reveal that Susan was in

excellent health prior to the accident. Susan’s trial testimony indicates that her

health deteriorated following the collision. The collision occurred, according to

Susan’s testimony, while she was sitting in her car at a traffic signal when “the

biggest impact ever just hit my car[.]” She stated that she hit the back of her head

and her body was in “excruciating pain.” Susan revealed that she had a “very, very

bad headache” and that her neck and her “whole body was just in severe pain.”

Medical records indicate that Susan was transported by ambulance to the

Women’s and Children’s Hospital emergency room. The ambulance records show

that she complained of neck and posterior/spine pain although she did not

complain of a head injury or lose consciousness. Hospital records reveal that

Susan presented with chest problems, bad headaches, back and neck pain, sore

chest, ear leakage and ringing, and memory loss.

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Lumbar Treatment & Surgery

Following the collision, Susan began treating with Dr. Clark Gunderson, an

orthopedic surgeon. Dr. Gunderson’s trial testimony indicates that she initially

presented to him on March 10, 2009, for neck and back pain along with severe

headaches associated with the accident. He stated that the pain in Susan’s thoracic

region was in the mid-part of her spine and that her lower back pain radiated down

her left leg to her foot. Dr. Gunderson noted that “she had a fairly severe neck and

lower back sprain or whiplash type injury.” He revealed that he treated Susan

conservatively by referring her to physical therapy and prescribing pain

medications, muscle relaxants, and anti-inflammatory medications.

Certified medical records show that Susan participated in thirteen physical

therapy sessions from March 17, 2009 through March 14, 2013. Dr. Gunderson

testified that he administered three lumbar epidural steroid injections. The

injections were unsuccessful such that Dr. Gunderson recommended a microscopic

lumbar laminectomy and discectomy at L5-S1 according to his testimony. He

testified that this surgery would alleviate Susan’s leg pain.

Prior to surgery, Defendants hired Dr. James Perry, an orthopedic surgeon,

to perform a defense medical examination (DME). The DME was performed on

March 14, 2011, according to the medical records. Therein, Dr. Perry opined that

Susan exhibited “low grade spondylolisthesis, which is most like [sic] the cause of

her symptoms.” He did not believe a discectomy was necessary and recommended

injecting her facet joints to determine the source of her pain. Dr. Perry stated that

should the injections be unsuccessful, “this level [L5-S1] may require surgical

treatment.” Pursuant to August 23, 2011 correspondence, Dr. Perry recommended

that Susan undergo a Transforaminal Lumbar Interbody Fusion (TLIF).

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At trial, Dr. Gunderson referred to Dr. Perry’s surgical recommendation and

explained that a TLIF is a more complex operation than a lumbar laminectomy and

discectomy since it involves a spinal fusion. He explained that a spinal fusion

could be performed in the future if the more conservative operation recommended

by Dr. Gunderson, i.e., the lumbar laminectomy and discectomy, failed to alleviate

Susan’s pain.

Medical records reveal that on April 7, 2011, Susan underwent the lumbar

laminectomy and discectomy. Dr. Gunderson testified that Susan initially felt

relief following the surgery as her “leg pain was much improved.” He indicated

that six weeks post-surgery, she was no longer experiencing lower back pain and

had only occasional shooting pain into her left thigh.

Dr. Gregory Rubino, a neurosurgeon, began treating Susan on July 3, 2012,

for neck and back pain according to his video deposition testimony. He testified

that he ordered a Magnetic Resonance Imaging (MRI) test which was performed

on July 20, 2012. The results, according to his testimony, revealed

spondylolisthesis, which Dr. Rubino defined as “one vertebral body slipping on the

another becoming slightly more anterior.” Dr. Rubino agreed that this condition

suggested spinal instability.

The record contains the video deposition of Dr. Donald Thigpen, a

chiropractic physician, who testified that he treated Susan for lower back therapy

following a referral from Dr. Rubino. Dr. Thigpen stated that Susan presented to

him on January 14, 2013, wherein he administered x-rays which revealed

spondylolisthesis at L5-S1. He defined spondylolisthesis as a vertebra that slips

forward in relation to the vertebra below, which indicates “some ligament damage

at that level.” Dr. Thigpen stated that ligaments hold bones in their proper

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alignment although they can be torn, stretched, or damaged by trauma such as a

motor vehicle accident.

Neck Pain & Cervical Surgery

Dr. Gunderson testified that following Susan’s lumbar discectomy, “[h]er

biggest complaint at this point was her neck pain.” He stated that she underwent

two rounds of physical therapy. Dr. Gunderson revealed that he administered two

cervical epidural steroid injections, which medical records show occurred in

August and September of 2011.

According to his testimony, Dr. Rubino ordered an upper and lower

extremity electromyography (EMG), a lumbar and cervical MRI which was taken

on July 20, 2012, and a discography. He stated that the results caused him to

recommend a C3-4 anterior discectomy and fusion. Medical records reveal that

Susan underwent the neck surgery on August 23, 2012. Dr. Rubino stated that

following the surgery, Susan’s neck pain was better.

Shoulder Surgery

Dr. Rubino’s medical record dated October 12, 2012, indicates that Susan

was experiencing shoulder pain which was “new since [cervical] surgery.” Her

shoulder pain was masked by her previous neck pain according to Dr. Rubino’s

testimony. Dr. Brett Cascio’s video deposition testimony indicates that he agreed

with Dr. Rubino with respect to the masking of pain.

Dr. Cascio, an orthopedic surgeon, testified that he began treating Susan for

left shoulder pain on December 6, 2012, following a referral from Dr. Rubino.

Dr. Cascio indicated that he ordered a shoulder MRI, which revealed that Susan

suffered from a torn rotator cuff and labrum. He agreed that the MRI results were

objective. In an April 11, 2013 medical note, Dr. Cascio recommended that Susan

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undergo a left shoulder arthroscopy as she was still experiencing “excruciating

pain” following physical therapy and a previously administered steroid injection.

Susan underwent the shoulder surgery on April 24, 2013, according to

Dr. Cascio’s operative report, and the following postoperative diagnoses were

reported: adhesive capsulitis; biceps tendinitis; partial tear; high-grade rotator cuff

tear; superior and anterior labrum tear; synovitis; and acromiclavicular arthrosis.

Dr. Cascio noted in correspondence that same day that Susan’s rotator cuff tear “at

the time of surgery demonstrated evidence that it was caused by a traumatic

injury.” He opined therein that “the tear occurred some time in the past because of

scarring and rounded edges of tissue which indicated an older rather than newer

injury.” He said that it was “more probable than not that her injuries occurred at

the time of the car accident on March 4, 2009.”

Future Medical Care - Life Care Plan

Dr. Rubino prepared a future medical life care plan, which is dated

February 5, 2013. Therein he anticipated Susan’s future medical needs regarding

her lower back as follows: lumbar MRI once every two years; lumbar physical

therapy, three times per week for eight weeks annually; pool membership for water

aerobics; lumbar epidural steroid injections twice annually; bilateral lower

extremity EMG once every two years; pain management physician to monitor and

prescribe pain medication twelve times per year; and neurosurgeon appointments

twice annually. Dr. Rubino anticipated the foregoing conservative treatment

would be required for the remainder of Susan’s life. He also indicated that Susan

would “likely need future lumbar surgery[.]”

We find that the medical testimony and evidence contained in the record are

so compelling that the only finding a reasonable person, exercising impartial

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judgment, could make was that the jury’s award of $150,000.00 for past and future

physical pain and suffering was abusively low. The undisputed testimony and

evidence reveal that Susan suffered extreme pain as a result of the accident which

caused her to undergo three surgeries. Additionally, she will likely need to

undergo a future lumbar fusion. As such, we find that the trial court properly

granted a JNOV on this element of damages.

B. Past and Future Mental Pain and Suffering

The jury in this matter failed to award damages for past and future mental

pain and suffering. The trial court granted a JNOV and combined the amount

awarded for mental pain and suffering with the amount awarded for physical pain

and suffering. We find no error in the trial court’s actions.

Dr. Gunderson’s medical records dated July 17, 2009, indicates that Susan

was “[s]tarting to feel depressed.” He testified at trial that “[p]eople with long

term chronic pain do get depressed” which he believed Susan was experiencing.

Dr. Gunderson indicated that he referred her to Dr. Lawrence Dilks, a

neuropsychologist, for an evaluation.

Medical records and testimony show that Dr. Dilks counseled Susan sixteen

times for depression. In his September 13, 2011 medical report, Dr. Dilks

indicated that Susan’s depression caused her the “inability to function in an

appropriate fashion.” Dr. Dilks’ trial testimony reveals that he performed two

neuropsychological evaluations, which he explained uses different tests to look

into the functioning of different parts of the brain “that may have been injured or

well preserved following some form of an incident.” The results, according to his

testimony, were: “depression, anxiety, post-traumatic stress disorder, insomnia

and sexual dysfunction.” He stated that Susan also experienced memory loss, and

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that her symptoms more likely than not arose from the accident. Dr. Dilks testified

that he reviewed two reports prepared by Defendants’ neuropsychological expert,

Dr. Megan Ciota. There is nothing in the record indicating that Defendants

produced Dr. Ciota as an expert at trial.

The evidence and testimony show that Susan, at a minimum, suffered from

depression. It shows that she was more likely than not suffering from some form

of mental anguish. As such, no reasonable person would fail to award anything.

Thus, we find no error in the trial court’s grant of a JNOV with respect to past and

future mental pain and suffering.

C. Loss of Enjoyment of Life

The jury in this matter did not award damages for loss of enjoyment of life.

The trial court granted a JNOV as to this issue. Again, we find no error in the trial

court’s actions.

Loss of enjoyment of life is defined as “detrimental alterations of a person’s

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

of life that were formerly enjoyed” before the injury. McGee v. A C and S, Inc.,

05-1036, p. 3 (La. 7/10/06), 933 So.2d 770, 773. Whether a person 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.” McGee, 933 So.2d at 775.

The testimony and medical evidence, including Maurice’s testimony

regarding their life together, reveal that Susan was physically active before the

accident. Maurice stated that they produced and hosted an outdoors television

program called Bayou Country Outdoors since 1995. Maurice indicated that Susan

appeared in approximately 340 episodes of these half-hour hunting and fishing

shows. He explained that Susan was known as “the fishing lady[.]” Maurice

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testified that they hunted together approximately nine times per year for doves, teal,

and pheasants. He revealed that they fished together approximately forty times per

year. Maurice stated that after the accident, Susan could not hunt and fish at the

same level she did pre-accident, she could not shoot a gun, and fishing became

difficult for her.

Maurice’s testimony is supported by Susan’s testimony with respect to her

pre-accident hunting and fishing capability. Susan indicated that post-accident, she

no longer considers herself “the fishing lady[.]” She revealed that when people

approach her to discuss fishing, she pulls away and gets Maurice to answer for her.

In addition to fishing and hunting, Susan testified that she participated in other pre-

accident activities, including: going out with friends; singing karaoke; dancing in

high heels; gardening; washing her car; and running, which she averaged

“probably about four to five miles a week.” Susan testified that she no longer

participates in those activities since the accident.

Medical records confirm Susan and Maurice’s testimony regarding her post-

accident limitations, including Dr. Gunderson’s August 31, 2011 correspondence

that Susan would not be “able to be involved shooting a shotgun, riding in a boat,

or fishing with a rod and reel. Additionally, I do not believe that she can operate a

shoulder mounted video camera, or a hand held video camera.”

Accordingly, we find that the trial court was correct in granting Plaintiffs’

Motion for JNOV and awarding damages with respect to loss of enjoyment of life.

No reasonable person would find as the jury did in its judgment.

D. Past Medical Expenses

In this matter, the jury awarded $235,500.00 for past medical expenses,

which the trial court reduced to $235,417.90 on JNOV. In brief, Defendants

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provide no argument regarding the trial court’s alleged error with respect to past

medical expenses. Thus, we decline to discuss past medical expenses in this regard.

E. Future Medical Expenses

In this matter, the jury awarded Susan $100,000.00 for future medical

expenses, which the trial court increased on JNOV. Awards for future medical

expenses were discussed in Veazey v. State Farm Mutual Auto Insurance, 587

So.2d 5, 8 (La.App. 3 Cir. 1991), as follows:

Future medical expenses, like any other damages, must be
established with some degree of certainty. The plaintiff must show
that, more probably than not, these expenses will be incurred. Awards
will not be made in the absence of medical testimony that they are
indicated and setting out their probable cost. Boothe v. New Orleans
Public [Serv.], Inc., 447 So.2d 620 (La.App. 4 Cir.1984); Sikes v.
McLean Trucking Co., 383 So.2d 111 (La.App. 3 Cir.1980). An
award for future medical expenses cannot be based on mere
speculation of the jury. Much stronger proof, such as medical
testimony of the specific expenses to arise, should be required for
such an award. Simmons v. Custom-Bilt Cabinet & Supply Co., 509
So.2d 663 (La.App. 3 Cir.1987); Sikes, supra.

Plaintiffs in this matter provided future medical damages, based in part upon

Dr. Rubino’s life care plan, which showed that Susan would require the following:

lumbar MRIs; lumbar physical therapy; pool membership; lumbar epidural steroid

injections; bilateral lower extremity EMG; a pain management physician; and a

neurosurgeon. Dr. Rubino further opined that Susan would likely need to undergo

a lumbar fusion, i.e., TLIF, in the future.

The present value of Dr. Rubino’s life care plan was provided by Dr. Charles

Bettinger, an expert economist, who opined that Susan’s total future economic loss

equated to $1,059,131.00. This amount encompassed $915,881.00 for Susan’s

ongoing medical needs and $143,250.00 for anticipated surgery and treatment,

which included: TLIF; physical therapy; shoulder arthroscopy with rotator cuff

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repair; chryotherapy; physical therapy; and brace. Susan underwent the shoulder

surgery, which Dr. Bettinger opined would cost $28,768.00. As to the TLIF,

Dr. Bettinger indicated it would cost $104,335.00. Dr. Perry, Defendants’ expert,

agreed that Susan would need a TLIP.

The medical testimony clearly set out the probable cost of future medical

expense well above that which was granted in the JNOV. We, therefore, find no

error in the trial court’s grant of a JNOV on the issue of future medical expenses.

F. Loss of Consortium

The jury in this matter awarded Maurice $15,000.00 as damages for loss of

consortium. The trial court granted a JNOV, increasing this amount. We find no

error in the trial court’s actions.

Loss of consortium damages were discussed in Broussard v. Romero, 96-

973, p. 12 (La.App. 3 Cir. 2/26/97), 691 So.2d 1265, 1273, writ denied, 97-670 (La.

4/25/97), 692 So.2d 1092, as follows:

The compensable elements of damage in a loss of consortium
claim are loss of society, sex, service, and support. “Society” is
broader than loss of sexual relations. It includes general love,
companionship, and affection that the spouse loses as a result of the
injury. “Support” is the lost family income that would go to support
the uninjured spouse. “Service” is the uncompensated work around
the house or educational help with the children which will, as a result
of the injury, have to be obtained from another source and at some
price.

In this case, Maurice testified that prior to the accident, he and Susan lived

together, worked together, and spent much time hunting and fishing. They had sex

one to two times per week. Maurice revealed that everything changed after the

accident. He stated that their sex life dwindled and that Susan was irritable and

experienced excruciating pain. Maurice noted that they no longer hunted and

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fished together at the same level since Susan was unable to shoot a gun and fishing

became difficult for her. Maurice revealed that he missed this time with Susan.

It is clear from the record that Maurice established loss of society and

companionship. Defendants’ contention that the trial court improperly granted

JNOV with respect to loss of consortium is without merit.

III. Quantum

Having determined that the trial court was correct in granting the JNOV, we

must consider whether the amounts set by the trial court were proper. In that

regard, we are guided by Anderson, 583 So.2d at 833, which provides:

Once a trial court has concluded that a JNOV is warranted
because reasonable men could not differ on the fact that the award
was either abusively high or abusively low, it must then determine
what is the proper amount of damages to be awarded. In making this
determination, the judge is not constrained as the courts of appeal are
to raising (or lowering) the award to the lowest (or highest) point
which is reasonably within the discretion afforded the court. Coco v.
Winston Industries, Inc., 341 So.2d 332 (La.1976).

The Anderson, 583 So.2d at 834, court further stated that the trial court’s

amount awarded via JNOV is then “reviewed on appeal under the constraints of

Coco, [341 So.2d 332].”

A. Past and Future Physical and Mental Pain and Suffering

In this case, the trial court combined the jury’s separate awards for past and

future physical and mental pain and suffering and increased this general damage

award to $450,000.00. The trial court’s award was based upon medical evidence

and testimony indicating that Susan was in excellent health prior to the accident. It

showed that she sustained serious injuries which required three surgeries and that

Susan would likely need to undergo a future lumbar fusion. The testimony and

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evidence revealed that she became depressed, had a diminished quality of life, and

would need future medical care and therapy.

This general damage award is less than the general damage award in Cobb v.

Delta Exports, Inc., 05-509 (La.App. 3 Cir. 12/30/05), 918 So.2d 1080, writ denied,

06-225 (La. 4/24/06), 926 So.2d 551, wherein the plaintiff driver collided with a

front-end loader. This court affirmed the jury’s award of $500,000.00 in general

damages. Id. In determining the award, this court found that the collision resulted

in the need for three surgeries, including a lumbar and cervical fusion. Id. We

noted that although the plaintiff had some pain prior to the accident, his condition

“significantly worsened afterward resulting in the inability to return to

employment.” Id. at 1090.

Defendants contend that the increased general damage award is improper

because Susan’s subjective pain complaints are highly suspect. However, her

subjective pain complaints as being high on a scale from one to ten were supported

by physician testimony and other objective evidence, showing that Susan suffered

from accident-related injuries and was being truthful. Specifically, Dr. Gunderson

testified that some patients rate their pain higher simply because they have not

experienced pain to the degree that Dr. Gunderson has seen experienced by some

of his other patients. Dr. Gunderson noted in his August 31, 2011 correspondence

that Susan’s subjective lower back complaints corroborated with the objective

evidence, i.e., the MRIs of her lumbar spine taken on August 7, 2009 and April 16,

2010.

Other objective evidence corroborating Susan’s subjective shoulder

complaints includes Dr. Cascio’s April 24, 2013 correspondence wherein he stated:

“MRI and physical exam are consistent with a superior labrum tear and rotator cuff

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tear.” He noted therein that: “The rotator cuff tear that was seen at the time of

surgery demonstrated evidence that it was caused by a traumatic injury.”

Dr. Rubino, likewise, corroborated Susan’s subjective complaints with objective

evidence given his testimony that his cervical fusion recommendation was based

upon Susan’s MRI results.

Dr. Cascio testified that he found Susan reliable and agreed that her

complaints were correlated by the objective findings. Dr. Gunderson testified that

Susan was reliable, believable, and consistent. Dr. Rubino testified that “[a]s the

days went on and as the visits went on. I think she was very reliable. She was

honest.” Dr. Dilks’ testimony indicates that he agreed Susan was in pain based

upon his testing and clinical sessions. Thus, Defendants’ argument is without

merit.

Defendants further contend that Susan’s failure to advise her physicians of

her post-accident casino trips indicates that she misled her physicians with respect

to pain. The objective evidence and physician testimony, however, refute

Defendants’ claim. Specifically, Dr. Gunderson testified that going to the casino

would “[p]robably [be] less demanding” than going to the doctor or library.

Dr. Rubino testified that: “For going to a casino and sitting there and pulling a slot

machine, anybody can do that, including a disabled.” Defendants’ argument,

therefore, is without merit.

Accordingly, after a thorough review of the medical evidence presented

above, we find that the medical testimony and records provide a reasonable basis

for the trial court to award $450,000.00 to Susan for past and future mental and

physical pain and suffering. As such, we affirm the trial court’s award.

B. Loss of Enjoyment of Life

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In this matter, the trial court awarded $100,000.00 for loss of enjoyment of

life. This award was based upon medical evidence and testimony indicating that

Susan was in good health and physically active pre-accident. The testimony

revealed that Susan participated in the following before the collision: fishing;

hunting; going out with friends; and running. Following the accident, her physical

ability and quality of life diminished.

As to the amount the trial court awarded in this case, we look to factually

similar cases. In Godchaux v. Peerless Insurance Co., 13-1083 (La.App. 3 Cir.

6/4/14), 140 So.3d 817, writ denied, 14-1411 (La. 10/3/14), 149 So.3d 801, this

court increased the trial court’s award for loss of enjoyment of life from $0.00 to

$50,000.00. We noted:

Here, it is clear that Mr. Godchaux has suffered detrimental alterations
to his lifestyle as a result of his injuries. He suffers from continued
pain, fatigue, and can no longer participate in many social activities he
loves, such as hunting and fishing. Furthermore, his marriage and sex
life have suffered greatly. Finally, he was forced to give up his career
as an on-duty police officer.

Id. at 826-27.

Similarly, in Savant v. Hobby Lobby Stores, Inc., 12-447 (La.App. 3 Cir.

11/7/12), 104 So.3d 567, we affirmed the trial court’s grant of JNOV awarding

$100,000.00 in damages for loss of enjoyment of life. This court held: “The jury

heard ample testimony regarding Ms. Savant’s limitations. She was an active

individual until the accident. Following the accident, she could no longer

participate in a host of activities that brought her pleasure.” Id. at 573.

Accordingly, after reviewing the medical evidence presented above, we find

that the medical testimony and records provide a reasonable basis for the trial court

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to award $100,000.00 for loss of enjoyment of life. We affirm the trial court’s

judgment on this issue.

C. Future Medical Expenses

In this matter, the trial court awarded $240,000.00 for future medical

expenses. An award of special damages is reviewed utilizing the manifest error

standard of review, unlike a general damage award which is reviewed utilizing the

abuse of discretion standard. Reed v. LaCombe, 15-120 (La.App. 3 Cir. 7/29/15),

172 So.3d 679.

The trial court’s award in this matter was based upon medical evidence and

testimony showing that Susan was healthy and active pre-accident. The record

shows that her health declined following the accident such that future medical

expenses will be necessary. Plaintiffs proved so strongly that reasonable persons

could not deny that Susan will need future lumbar MRIs; lumbar physical therapy;

a pool membership; lumbar epidural steroid injections; a bilateral lower extremity

EMG; a pain management physician; and a neurosurgeon. Dr. Rubino opined that

Susan would probably need a future lumbar fusion. Dr. Bettinger opined that

Susan’s total future economic loss equated to $1,059,131.00. Accordingly, the

trial court was not manifestly erroneous in increasing the jury’s award from

$100,000.00 to $240,000.00. The trial court’s judgment is affirmed in this regard.

D. Loss of Consortium

In this case, the trial court awarded Maurice $50,000.00 for loss of

consortium. The trial court’s award was based upon medical evidence and

testimony indicating that Susan’s superior health prior to the accident enabled her

to work, fish, hunt, and become intimate with him. Her ability to participate in

those activities diminished since the accident.

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To determine whether the trial court’s award was proper, we look to

factually similar jurisprudence. In Maddox v. City of Oakdale, 99-726 (La.App. 3

Cir. 11/3/99), 746 So.2d 764, writ denied, 99-3388 (La. 2/11/00), 754 So.2d 936,

the trial court awarded $75,000.00 for loss of consortium. The trial court

considered the fact that the plaintiff underwent rotator cuff surgery as a result of

the accident.

Accordingly, after a thorough review of the medical evidence presented

above, we find that the medical testimony and records provide a reasonable basis

for the trial court to award $50,000.00 to Maurice for loss of consortium. The trial

court did not abuse its discretion in this regard.

CONCLUSION

The trial court’s judgment in favor of Plaintiffs/Appellees, Maurice Fontenot

and Susan Melton Fontenot, is affirmed. All costs of this appeal are assessed to

Defendants/Appellants, Jarred Levar Stevens, Carl’s Rentals, and Republic Fire

and Casualty Insurance Company.

AFFIRMED.

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

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