Brittainey Huntley v. 21st Century Premier Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-514

BRITTAINEY HUNTLEY

VERSUS

21ST CENTURY PREMIER INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 98440
HONORABLE J. BYRON HEBERT, DISTRICT JUDGE PRO TEMPORE

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JOHN E. CONERY
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett, and John E. Conery,
Judges.

AFFIRMED.

Daniel G. Brenner
Megan M. Clark
Bolen, Parker, Brenner, Lee, & Englesman LTD.
A Professional Law Corporation
Post Office Box 11590
Alexandria, Louisiana 71315-1590
(318) 445-8236
COUNSEL FOR DEFENDANT/APPELLANT:
21st Century Premier Insurance Company

Joseph F. Gaar, Jr.
Jason M. Welborn
Lucas S. Colligan
Jacob H. Hargett
Post Office Box 2053
Lafayette, Louisiana 70502
(337) 233-3185
COUNSEL FOR PLAINTIFF/APPELLEE:
Brittainey Huntley

CONERY, Judge.

21st Century Premier Insurance Company (21st Century) appeals the trial

court’s denial of a directed verdict on the type of surgery required by the plaintiff,

Brittainey Huntley (Ms. Huntley) for injuries to her lumbar spine allegedly

sustained through the fault of its insured Mrs. Lula Lene. 21st Century also appeals

those portions of the unanimous jury verdict awarding Ms. Huntley special

damages of $127,600.00 for future medical expenses for a lumbar laminectomy,

discectomy, and fusion with instrumentation, general damages of $150,000.00 for

past and future pain and suffering, and $100,000.00 for past and future mental and

emotional anguish. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

A low impact motor vehicle accident occurred on March 28, 2013, in

Abbeville, Louisiana, between the plaintiff, Ms. Huntley, and the defendant, Mrs.

Lene, who is now deceased. There was slight damage to both vehicles, but neither

party required medical treatment at the time of the accident. However, Ms.

Huntley subsequently sought treatment for both cervical and lumbar spinal injuries

she claimed were associated with the accident. She eventually had cervical spinal

surgery and claimed she required future surgery on her lumbar spine.

Defendants stipulated that Mrs. Lene was 100% at fault for the accident and

the case proceeded to trial on the issues of causation and damages. After a four

day trial, the jury awarded Ms. Huntley general and special damages as follows:

Past medical expenses $30,700.00
Future medical expenses $127,600.00
Past lost earnings $22,000.00
Past and future pain and suffering $150,000.00
Past and future mental and emotional anguish $100,000.00
Past and future disability $25,000.00
Past and future loss of enjoyment of life $25,000.00

TOTAL $ 480,300.00

Defendants appealed only that portion of the jury’s verdict pertaining to the

$127,600.00 award of future medical expenses and the general damage awards of

$150,000.00 for past and future pain and suffering and $100.000.00 for past and

future mental and emotional anguish. Defendants did not appeal the remaining

amounts awarded by the jury. The issue on appeal is whether Ms. Huntley

required a lumbar laminectomy, discectomy, and fusion with instrumentation or

simply a discectomy.

Directed Verdict

At the close of the plaintiff’s case in chief, 21st Century moved for a directed

verdict on the type of surgery necessary to correct the problem with Ms. Huntley’s

lumbar spine allegedly caused by the fault of Mrs. Lene. 21st Century argued that

Ms. Huntley failed to carry her burden of proof that she required a lumbar

laminectomy, discectomy, and fusion with instrumentation, as opposed to a less

serious and less expensive lumbar discectomy. The trial court promptly denied 21st

Century’s motion, and 21st Century proceeded with its case in chief.

At the close of 21st Century’s case in chief, Ms. Huntley moved for a

directed verdict on the basis that she had carried her burden of proof that she did

require the more extensive and expensive surgery, a lumbar laminectomy,

discectomy, and fusion with instrumentation, and not simply a lumbar discectomy.

The trial court also denied Ms. Huntley’s motion, and the issue was placed before

the jury for a decision.

Counsel for both parties in their closing arguments extensively discussed the

issue of what type of future surgery was appropriate for Ms. Huntley’s lumbar

spinal condition. The costs of each procedure were also extensively discussed by

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opposing counsel, along with requested amounts appropriate to compensate Ms.

Huntley for her past and future pain and suffering and mental anguish, depending

on the extent of the surgical procedure required. At the close of counsel’s final

arguments, the jury was instructed by the trial court and retired to deliberate.

After one hour of deliberation, the jury returned with a unanimous verdict in

favor of Ms. Huntley, which included future medical expenses of $127,600.00, the

amount necessary for a surgery requiring a lumbar laminectomy, discectomy, and

fusion with instrumentation, general damages of $150,000.00 for past and future

pain and suffering, and $100,000.00 for past and future mental and emotional

anguish. The award given by the jury for the future surgical procedure was

supported by the testimony of Dr. Illyas Munshi, Ms. Huntley’s treating

neurologist. The general damage awards were suggested to the jury by Ms.

Huntley’s counsel in closing argument and reflected an amount that would

compensate her for past and future pain and suffering and mental and emotional

anguish in undergoing the more extensive surgical procedure, a lumbar

laminectomy, discectomy, and fusion with instrumentation, along with general and

special damages for her cervical fusion.

A judgment memorializing the jury’s verdict was signed by the trial court on

February 5, 2016, from which 21st Century now suspensively appeals.

ASSIGNMENTS OF ERROR

21st Century assigns two errors on appeal:

A. The Trial Court committed legal error in denying a Motion for
Directed Verdict made by the defendant/appellant at the
conclusion of plaintiff’s/appellee’s case in chief, in which
mover sought to exclude plaintiff’s claim that a “fusion with
instrumentation” surgery was proven to be needed by plaintiff,
as opposed to a [discectomy] surgery.

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B. The jury was manifestly erroneous in awarding wholly
unsupported damages for future medical expenses and general
damages, by awarding the amounts associated with a “lumbar
fusion with instrumentation” procedure instead of the
[discectomy].

LAW AND DISCUSSION

First Assignment of Error - Directed Verdict

21st Century first appeals the trial court’s denial of a directed verdict made at

the close of Ms. Huntley’s case in chief, seeking “to exclude plaintiff’s claim that a

‘fusion with instrumentation’ surgery was proven to be needed by plaintiff, as

opposed to a [discectomy] surgery.”

Standard of Review

On appeal the standard of review for a directed verdict is de novo. See Hall

v. Folger Coffee Co., 03-1734 (La. 4/14/04), 874 So.2d 90. In Carter v. Western

Kraft Paper Mill, 94-524, pp.4-5 (La.App. 3 Cir. 11/2/94), 649 So.2d 541, 544

(citations omitted), the court explained:

[A] directed verdict should only be granted when the facts and
inferences point so strongly in favor of one party that the court
believes reasonable people could not reach a contrary verdict. It is
appropriate, not when there is a preponderance of evidence, but only
when the evidence overwhelmingly points to one conclusion. The
propriety of granting a directed verdict must be evaluated in light of
the substantive law underpinning the plaintiff’s claims.

Under the foregoing legal principles the question is not whether
in our view the plaintiff has proven his case against defendants by a
preponderance of the evidence, but rather, whether, upon viewing the
evidence submitted, we conclude that reasonable people could not
have reached a verdict in favor of the plaintiff against the defendants.

....

Questions of credibility should not be resolved by a directed
verdict. Making credibility evaluations is one of the primary duties of

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a jury and the trial court may not take this duty from the jury unless
the party opposing the directed verdict has failed to produce sufficient
evidence upon which reasonable and fair-minded persons could
disagree. Evaluations of credibility play no part in reaching a decision
on a motion for directed verdict.

Louisiana Code of Civil Procedure Article 1810 provides that a litigant can

move for a directed verdict in a jury trial “at the close of the evidence offered by an

opponent[.]” In this case, counsel for 21st Century moved for a directed verdict at

the close of Ms. Huntley’s case in chief on the “issue of appropriately proven

surgical procedure for Ms. Huntley.”

Testimony Presented in Ms. Huntley’s Case in Chief

Ms. Huntley presented the November 12, 2015 video trial deposition

testimony of her treating physician, Dr. Munshi, in support of her claim that she

required a lumbar laminectomy, discectomy, and fusion with instrumentation. Dr.

Munshi testified that after a review of the November 6, 2014 MRI, referred to as

the second MRI, there was evidence of a problem on the right side of L3-4, as well

as the original problem on the left side of L3-4 shown on prior studies. This

change in the condition of her lumbar spine indicated that bony material would

have to be removed from both sides of the spine, thus increasing the chances that a

surgical procedure requiring a lumbar laminectomy, discectomy and fusion with

instrumentation would be necessitated. Dr. Munshi’s opinion was corroborated by

the changes noted to the right side of Ms. Huntley’s L3-4 as evidenced in the

second MRI as well as by her increased physical findings on repeat examinations.

21st Century’s expert, Dr. William Brennan, was also called by video trial

deposition in Ms. Huntley’s case in chief. Dr. Brennan’s June 6, 2014 Independent

Medical Examination Report (IME) was attached as an exhibit to his video trial

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deposition. In his IME, Dr. Brennan, based on his interpretation of the October 19,

2013 MRI, concluded that:

The patient appears to have not responded to treatment of the
nonsurgical variety for the left L3-4 lateral disk herniation, and my
recommendation would be a far lateral [discectomy] at L3-4 on the
left. There is no indication in the medical records that standing
lumbar flexion and extension x-rays were ordered or performed. The
L3-4 disk on the MRI scan is adequately hydrated, as are the other
disk spaces. There is no evidence of any spondylolisthesis, and I do
not feel there is any indication for lumbar fusion.

Dr. Brennan agreed with that portion of Dr. Munshi’s initial

recommendation that Ms. Huntley would require a discectomy at L3-4. However,

Dr. Brennan was not asked by 21st Century and did not issue a revised IME

addressing the issue of the additional problem on the right side of Ms. Huntley’s

L3-4 as shown on the November 6, 2014 MRI which he admittedly received on

May 8, 2015.

When Dr. Brennan was questioned during his November 15, 2015 video trial

deposition about the changes in Ms. Huntley’s second MRI of her lumbar spine,

counsel for Ms. Huntley objected based on the fact that Dr. Brennan had not been

asked to update his initial report and comment on the second MRI. At trial, the

trial court sustained the objection, and Dr. Brennan was not allowed to give an

opinion based on an interpretation of the second MRI.

In fact, Dr. Brennan testified that without an MRI that was less than a year

old, he would not perform any kind of lumbar surgery. There was nothing in the

record to directly contradict Dr. Munshi’s testimony that it was “more probable

than not” that Ms. Huntley would require a lumbar laminectomy, discectomy, and

fusion with instrumentation.

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Ms. Huntley also submitted into evidence in her case in chief the August 19,

2015 IME of Dr. Curtis R. Partington with Independent Medical Reviews, LLC.

Dr. Partington confirmed that Ms. Huntley’s L3-4 disc herniation was present in

both the September 11, 2013 CT scan and the October 19, 2013 MRI of the

lumbosacral spine. He also found no “central spinal stenosis or right-sided

foramen compromise.” Dr. Partington did not review the second MRI, which was

the first evidence of the newly developed problem with the right side of Ms.

Huntley’s L3-4.

Based on the record before the trial court at the close of Ms. Huntley’s case

in chief, we find no error in the trial court’s ruling denying the directed verdict

sought by 21st Century on the issue of the type of future surgical procedure

required by Ms. Huntley.

Assignment of Error Two - Jury Verdict

21ST Century also appeals the jury’s verdict awarding special damages for

future medical expenses and general damages, “associated with a ‘lumbar fusion

with instrumentation’ procedure instead of the discectomy.”

Standard of Review

In Hayes Fund For The First United Methodist Church of Welsh, LLC v.

Kerr-McGee Rocky Mountain, LLC, 14-2592, p. 8 (La. 12/08/15), 193 So.3d 1110,

1115-16, the Louisiana Supreme Court reiterated the duty of appellate courts in

applying the manifest error review to cases on appeal and stated:

In all civil cases, the appropriate standard for appellate review
of factual determinations is the manifest error-clearly wrong standard,
which precludes the setting aside of a trial court’s finding of fact
unless that finding is clearly wrong in light of the record reviewed in
its entirety. Cenac v. Public Access Water Rights Ass’n, 02-2660, p. 9
(La. 6/27/03), 851 So.2d 1006, 1023. Thus, a reviewing court may

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not merely decide if it would have found the facts of the case
differently. Hall v. Folger Coffee Co., 03-1734, p. 9 (La. 4/14/04),
874 So.2d 90, 98. Rather in reversing a trial court’s factual
conclusions with regard to causation, the 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 conclusion, and the
finding must be clearly wrong. Stobart v. State through Dept. of
Transp. and Development, 617 So.2d 880, 882 (La.1993).

This test requires a reviewing court to do more than simply
review the record for some evidence, which supports or controverts
the trial court’s findings. The court must review the entire record to
determine whether the trial court’s finding was clearly wrong or
manifestly erroneous. Parish Nat. Bank v. Ott, 02-1562, pp. 7-8 (La.
2/25/03), 841 So.2d 749, 753-54. The issue to be resolved on review
is not whether the judge or jury was right or wrong, but whether the
judge’s or jury’s factfinding conclusion was a reasonable one. Rosell
v. ESCO, 549 So.2d 840, 844 (La.1989); Canter v. Koehring Co., 283
So.2d 716, 724 (La.1973).

The record reflects that 21st Century did not present any medical evidence

directly contradicting the medical evidence put before the jury in Ms. Huntley’s

case in chief, as previously discussed in our analysis of the trial court’s denial of

21st Century’s motion for directed verdict. The defendant’s case in chief was

primarily focused on their claim that Ms. Huntley’s injuries could not have resulted

from such a low-impact accident, in other words, medical causation. Defendants

strongly argued to the jury that this low impact collision did not cause Ms. Huntley

any serious injuries that would require surgery. However, 21st Century admitted in

their briefing to this court on appeal that:

[T]he issue of medical causation, [is] not the subject of this appeal.
The pertinent evidence to this appeal is instead the testimony of both
Dr. Brennan and Dr. Munshi, showing that (1) Mrs. Huntley’s spine
was not currently “unstable” and, (2) that she would need a lumbar
discectomy in the future.

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Hence medical causation is no longer the issue on appeal. Only the type of

future surgery needed by Ms. Huntley and the damages associated therewith.

Future Medical Expenses

The substantive law that governs Ms. Huntley’s claims against Ms. Lene and

21st Century for the future medical expenses necessary to treat and compensate her

for the injuries allegedly sustained in the accident was succinctly stated by the

supreme court in Menard v. Lafayette Ins. Co., 09-1869, pp. 12-13 (La. 3/16/10),

31 So.3d 996, 1006 (emphasis added):

Under Louisiana law, a tort victim may recover past (from
injury to trial) and future (posttrial) medical expenses caused by
tortious conduct. Frank L. Maraist & Thomas C. Galligan, Jr.,
Louisiana Tort Law § 7.02[1], 7-5 (Michie 2009). The victim must,
however, establish he incurred past medical expenses in good faith as
a result of his injury and future medical expenses will more
probably than not be incurred. Stiles v. K Mart Corp., 597 So.2d
1012, 1012 (La.1992) (remanding for a determination of “an award
for future medical expenses which the medical evidence established
that plaintiff, more probably than not, will be required to incur”);
Maraist & Galligan, supra, § 7.02[1], 7-5-7-6. A plaintiff shows the
probability of future medical expenses with supporting medical
testimony and estimations of their probable cost. Smith v.
Municipality of Ferriday, 05-755, pp. 11-12 (La.App. 3 Cir. 2/1/06),
922 So.2d 1222, 1231, writ denied, 06-0934 (La. 9/29/06), 937 So.2d
860; Highlands Ins. Co. v. Missouri Pacific R. Co., 532 So.2d 317,
324 (La.App. 3[] Cir. 1988), judgment affirmed sub nom. Lee v.
Missouri Pacific R. Co., 540 So.2d 287 (La.1989); see also, Stiles,
597 So.2d at 1012 (referring to future medical expenses established by
medical evidence). Importantly, future medical expenses must be
established with some degree of certainty. Highlands, 532 So.2d at
324.

....

The proper standard for determining whether a plaintiff is entitled to
future medical expenses is proof by a preponderance of the evidence
the future medical expense will be medically necessary. Hoskin v.
Plaquemines Parish Gov’t, 97-0061 (La.App. 4 Cir. 12/1/97), 703

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So.2d 207, 211, writ denied, 98-270, 98-271 ([La.] 4/3/98), 717 So.2d
1129.

In fulfilling the obligation required on review, Menard instructs that an

appellate court must:

[D]o more than simply review the record for some evidence, which
supports or controverts the trial court’s findings. The court must
review the entire record to determine whether the trial court’s finding
was clearly wrong or manifestly erroneous. Guillory, 09-0075 at p.
16, 16 So.3d at 1118; Kaiser [v. Hardin, 06-2092, p. 12 (La. 4/11/07),
953 So.2d 802,] 810. The issue to be resolved on review is not
whether the jury was right or wrong, but whether the jury’s fact
finding conclusion was a reasonable one. Rosell v. ESCO, 549 So.2d
840, 844 (La.1989).

Notably, reasonable persons frequently disagree regarding the
measure of damages in a particular case. Guillory, 09-0075 at pp. 15-
16 So.3d at 1117. Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be manifestly
erroneous or clearly wrong. Rosell, 549 So.2d at 844. “Where there is
conflict in the testimony, reasonable evaluations of credibility and
reasonable inferences of fact should not be disturbed upon review,
even though the appellate court may feel that its own evaluations and
inferences are as reasonable.” Canter, 283 So.2d at 724. An appellate
court on review must be cautious not to re-weigh the evidence or to
substitute its own factual findings just because it would have decided
the case differently. Rosell, 549 So.2d at 844.

Id. at 1007.

Dr. Munshi testified that he could not be 100% certain that a lumbar

laminectomy, discectomy, and fusion with instrumentation would be required until

he was able to conduct the surgery. However, he did testify that the fact that Ms.

Huntley’s medical condition had deteriorated and involved both the right and left

side of L3-4 made it more probable than not that she would need a lumbar

laminectomy, discectomy, and fusion with instrumentation, and recommended that

more extensive and expensive surgery to her.

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Dr. Brennan stated in his IME report that Ms. Huntley only required a

surgical lumbar discectomy in order to alleviate her pain caused by the lumbar disc

protrusion at L3-4 on the left side. However, as previously discussed, Dr. Brennan

was not asked to render a supplemental report after receiving the second MRI and

was thus precluded from giving his opinion on a surgical recommendation for Ms.

Huntley in his video trial deposition based on her increased symptoms and new

findings at L3-4 on the right side, as shown by the second MRI.

As discussed, the second MRI on November 6, 2014, demonstrated

deterioration in Ms. Huntley’s L3-4 lumbar spine with new findings at L3-4 on the

right. This deterioration was the tipping point for Dr. Munshi’s testimony that

instead of a lumbar discectomy, Ms. Huntley would more likely than not require a

lumbar laminectomy, discectomy, and fusion with instrumentation.

Dr. Munshi also testified in his video trial deposition as to the costs

associated with the recommended surgical procedure of a lumbar laminectomy,

discectomy, and fusion with instrumentation, and a breakdown of those costs was

submitted into evidence as an exhibit to Dr. Munshi’s video trial deposition:

ITEMIZATION OF FUTURE MEDICAL EXPENSES

LUMBAR SURGICAL QUOTES:

Munshi $40,000.00

Instrumentation $40,000.00

LGMC $35,000.00

NeuroTech $3,148.44

Anesthesia $9,000.00

$127,548.44

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The jury obviously found that the future medical expenses for the more

extensive lumbar laminectomy, discectomy, and fusion with instrumentation

surgery was necessary and they awarded a rounded off figure of $127,600 for

future medical expenses.

Having reviewed the record in its entirety, we find that the jury’s award of

future medical expenses for the lumbar laminectomy, discectomy, and fusion with

instrumentation is fully supported by the evidence and we affirm the jury’s award

of $127,600.00 for future medical expenses.

General Damages for Past and Future Pain and Suffering/Past and Future
Mental and Emotional Anguish

The general damages awarded to Ms. Huntley, $150,000.00 for past and

future pain and suffering, and $100,000.00 for past and future mental and

emotional anguish, are the result of the jury’s determination that Ms. Huntley

required a lumbar laminectomy, discectomy, and fusion with instrumentation, the

more expensive and extensive surgical procedure, with a longer recovery period,

than the discectomy urged by 21st Century. In Rando v. Anco Insulations, Inc., 08-

1163, 08-1169, pp. 40-41 (La. 5/22/09), 16 So.3d 1065, 1094, the supreme court

instructed:

On review, an appellate court must be cautious not to re-weigh the
evidence or to substitute its own factual findings just because it would
have decided the case differently. Ryan, 988 So.2d at 219. Moreover,
the initial inquiry must always be directed at whether the trier court’s
award for the particular injuries and their effects upon this particular
injured person is a clear abuse of the trier of fact’s great discretion. It
is only after articulated analysis of the facts discloses an abuse of
discretion, that the award may on appellate review, for articulated
reason, be considered either excessive, Carollo v. Wilson, 353 So.2d
249 (La.1977); Schexnayder v. Carpenter, 346 So.2d 196 (La.1977),
or insufficient, Olds v. Ashley, 250 La. 935, 200 So.2d 1 (1967). Only
after such determination of abuse has been reached, is a resort to prior

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awards appropriate for purposes of then determining what would be
an appropriate award for the present case.

21st Century’s argument that the general damage awards made by the jury to

Ms. Huntley are excessive is based entirely on its argument that Ms. Huntley needs

only a discectomy rather than the more extensive lumbar surgery. We disagree.

Having affirmed the jury’s award of future medical expenses based on the need for

the more extensive and expensive lumbar laminectomy, discectomy, and fusion

with instrumentation, we also find no abuse of discretion of the jury’s general

damages award. The record supports a finding that Ms. Huntley’s past medical

treatment and the more extensive recovery period for her future surgery are

commensurate with the appropriate exercise of the jury’s discretion to award

$150,000.00 for past and future pain and suffering, and $100,000.00 for past and

future mental and emotional anguish, especially considering that she also

underwent a cervical fusion in this case. We find no abuse of the jury’s vast

discretion in the jury’s general damages award to Ms. Huntley.

CONCLUSION

For the foregoing reasons we affirm the jury’s verdict and the trial court’s

judgment signed on February 5, 2016, awarding special damages for future

medical expenses in the amount of $127,600.00, general damages for past and

future pain and suffering in the amount of $150.000.00, and general damages for

past and future mental and emotional anguish in the amount of $100,000.00, in

favor of Brittainey Huntley and against 21st Century Premier Insurance Company

and Eula Lene. All costs of this appeal are assessed against 21st Century Premier

Insurance Company.

AFFIRMED.

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