Thomas C. Royer v. State of Louisiana, Dept. of Transportation & Development

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-534

THOMAS C. ROYER

VERSUS

STATE OF LOUISIANA, DEPARTMENT OF TRANSPORTATION &
DEVELOPMENT

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C-80379, DIV. B
HONORABLE LALA BRITTAIN SYLVESTER, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Shannon J. Gremillion,
Judges.

AFFIRMED IN PART; REVERSED IN PART;
REMANDED WITH INSTRUCTIONS.

Victoria R. Murry, Assistant Attorney General
Louisiana Department of Justice
P. O. Box 1710
Alexandria, LA 71309
(318) 487-5944
COUNSEL FOR DEFENDANT/APPELLANT:
State of Louisiana, Department of Transportation & Development

Scott J. Chafin, Jr.
Julie Payne Johnson
J. Cole Sartin
Verity Gentry Bell
Gregorio, Chafin & Johnson, L.L.C.
7600 Fern Ave., Building 700
Shreveport, LA 71105
(318) 865-8680
COUNSEL FOR PLAINTIFF/APPELLEE:
Thomas C. Royer

GREMILLION, Judge.

The defendant-appellant, the State of Louisiana through the Department of

Transportation and Development (DOTD), appeals a jury verdict in favor of the

plaintiff-appellee, Thomas C. Royer, for injuries he sustained after hydroplaning

on Louisiana Highway 1 in Natchitoches. For the following reasons, we affirm in

part, reverse in part, and remand with instructions.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2006, Royer was seriously injured when he hydroplaned on

Louisiana Highway 1 in Natchitoches Parish, while in the course and scope of his

employment. In July 2007, he filed suit against DOTD, alleging that his damages

were due to an unreasonably dangerous condition in the roadway. In July 2008,

Stonehurst Commercial Insurance Company, the workers’ compensation insurer of

Royer’s employer, Mobile Air of Louisiana, LLC, filed a petition of intervention,

asserting its right to reimbursement. However, in February 2013, Stonehurst

settled with Royer for $150,000 and waived its lien for repayment of benefits. In

September 2015, DOTD filed a motion in limine seeking credit for payments made

by Stonehurst, which the trial court later denied. In October 2015, DOTD filed for

supervisory writs to this court from the denial of its motion in limine, which we

denied.

A three-day jury trial was held from October 12-15, 2015. The jury returned

a verdict finding DOTD 100% at fault in causing the accident and awarded

damages as follows:

Past Medical Expenses $292,105.49

Future Medical Expenses $681,376.48

Future Loss of Support $1,500,000.00

Past Lost Wages $330,310.00

Future Lost Earnings $763,131.00

Mental and Physical Pain
and Suffering of Thomas Royer $200,000.00

Loss of Enjoyment of Life $0.00

DOTD filed a motion for judgment notwithstanding the verdict (JNOV) or,

alternatively, a motion for new trial in October 2015. Following a December 2015

hearing, the motion was denied.

DOTD appeals the jury’s verdict and the trial court’s denial of its motion for

JNOV or, alternatively, motion for new trial. DOTD assigns as error:

1. The trial court erred in denying the DOTD’s Motion in Limine on
the issue of the collateral source rule.

2. The trial court erred in signing a judgment on jury verdict,
incorporating the jury verdict form which was internally
inconsistent and resulted in double recovery of future lost wages to
the plaintiff, or alternatively failed to properly classify loss of
supportive services as future medical expenses.

3. The trial court erred in signing a judgment on jury verdict that
failed to incorporate the mandatory language set forth in R.S.
13:5106 with regard to Future Medical Expenses to be paid
through the Future Medical Fund.

4. The trial court erred in signing judgment on jury verdict that
awarded legal and judicial interest on future medical care expenses
that are to be paid from the Future Medical Care Fund.

5. The jury’s verdict in this case on the issue of liability is manifestly
wrong where the DOTD maintained the roadway at issue in
accordance with DOTD standards for maintenance.

DISCUSSION

Manifest Error-Liability

We will first address DOTD’s assignment of error claiming that the jury

erred in finding it liable because a finding that it was not liable would render the

remaining issues moot. It does not appear that DOTD seriously contests the matter

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of liability, as it is afforded only one page of its thirty-page brief. Nevertheless, we

will review the jury’s finding using the manifest error/clearly wrong standard.

The supreme court recently summarized the manifest error standard of

review:

This court has announced a two-part test for the reversal of a
factfinder's determinations: (1) the appellate court must find from
the record that a reasonable factual basis does not exist for the
finding of the trial court, and (2) the appellate court must further
determine that the record establishes that the finding is clearly
wrong (manifestly erroneous). See Mart v. Hill, 505 So.2d 1120,
1127 (La.1987). This test dictates that a reviewing court must do
more than simply review the record for some evidence which
supports or controverts the trial court's findings. See id. The
reviewing court must review the record in its entirety to determine
whether the trial court's finding was clearly wrong or manifestly
erroneous. See id.

Lobell v. Rosenberg, 15–247, p. 10 (La.10/14/15), 186 So.3d 83, 90.

. . . [I]t is the duty of the Highway Department to construct and
maintain the highways in a condition reasonably safe for persons
exercising ordinary care and reasonable prudence. Coleman v.
Houp, 319 So.2d 831 (La.App.3d Cir. 1975). In the performance of
this duty, the character of the road and the probable traffic must be
kept in view, as the requirement of reasonable safety implies
reasonable safety for any lawful or proper purpose. Kilpatrick v.
State, 154 So.2d 439 (La.App.2d Cir. 1963). In order to hold the
Department of Highways liable for an accident caused by an unsafe
or hazardous condition it must be shown that the Highway
Department had prior notice, either actual or constructive, of the
dangerous condition and had sufficient opportunity to remedy same
or at least to alert and warn motorists of its presence and failed to
do so. Coleman v. Houp, 319 So.2d 831 (La.App.3d Cir. 1975).

United States Fidelity and Guaranty Co. v. State of Louisiana, through the

Department of Highways, 339 So.2d 780, 785 (La. 1976). We will review the

testimony and evidence presented at trial.

Trooper Jason Sanders, a sergeant with the Louisiana State Police, arrived at

the scene of the crash. He said that there was water “flowing down the roadway”

in the ruts. Trooper Sanders said that as he approached the crash scene:

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[W]hen I got to the bottom of the hill, my car hydroplaned and it,
once it came back in contact with the roadway, I began going up
the hill and I could feel, I could feel the movement in my vehicle.
I wouldn’t say it, it wasn’t quite a hydroplane but it was movement.

Several pictures taken by Trooper Sanders at the scene of the accident were

admitted into evidence. They show significant damage to the Mobile Air work

truck that Royer was driving but particularly to the driver’s side. The pictures also

depict water standing in the ruts of the roadway, even though it was no longer

raining. Royer was unresponsive at the scene, so Trooper Sanders was unable to

question him. Besides the hydroplaning, Trooper Sanders opined that

inattentiveness of the driver and vehicle conditions could have been contributing

factors to the accident.

Joe Haynes, meteorologist in Shreveport for KTBS and a forensic

meteorologist, testified that he analyzed various data sources to determine the

weather conditions at the approximate time (1:30 p.m.) the accident occurred. He

testified that more likely than not it was raining at the time the accident occurred.

Jerry Burnaman, a former Engineer Tech 7 DOTD employee at the time of

the crash, testified that in order to maintain Louisiana highways in a reasonably

safe condition, water should flow off of the roadway rather than accumulate in ruts.

Burnaman agreed that if the ruts were full of water, and water was flowing

downhill in the ruts, the roadway had not been properly maintained.

Jonathan Lachney, the Assistant District Administrative Engineer for DOTD

in Alexandria, Louisiana, testified that a Parish Maintenance Supervisor travels the

roads bi-weekly.

Scarlett Pomerantz testified that she has lived on Highway 1, less than a

quarter of a mile away from where the accident occurred, for fifteen years.

Pomerantz testified that she called DOTD twice to report the ruts in the road and

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the need for a sign, but that as of the date of trial, the ruts were still there. She said

that she has seen several single-car wrecks in the same area when the roads are wet,

including an 18-wheeler that flipped over.

Thurgood Flanagan, a DOTD employee from 1972-2007, was the

Natchitoches Parish Maintenance Supervisor at the time of the accident. He

planned and supervised maintenance of the roads in Natchitoches Parish. Flanagan

reviewed his inspections records indicating that he had driven over the roadway

where the accident occurred at least twenty-six times a year. However, he said that

he had actually driven over that roadway at least fifty-two times per year and that

he knew what condition the roadway was in. Flanagan said that DOTD knew the

road held water and that employees would routinely go out and drain water off of

the road by making a trench with a shovel in the area where the shoulder meets the

grass.

Flanagan testified that between 1997 and 2005, DOTD crews went out to the

location of the accident nineteen times to drain water from the roadway, which

took many hours each time. When questioned why DOTD did not just fix the ruts,

Flanagan stated “my belief was where that wreck happened it wasn’t, it wasn’t bad.”

Flanagan testified that he knows nothing about cross-slopes, road grades, or rut-

depth. He said that he did not notice a problem with this area of the roadway, and,

if he had, he would have had a crew go out and fix it.

Rhett Desselle, the Assistant District Administrator of DOTD over seven

parishes, including Natchitoches, is responsible for bridge inspection and

maintenance, traffic engineering and operations, and equipment fleet and repair

shops. Desselle said that the roadway in question came into existence in 1925

when there was no design standard for cross-slope. Desselle discussed a project in

1991 involving overlay and widening of an existing rural road. He said that in
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1991, a pavement cross-slope of 2.5% would have been desirable. However,

Desselle testified that pursuant to La.R.S. 48:35(B), Chief Engineers are allowed to

make exceptions to design standards. He said the guidelines are examples to work

toward, but that throughout Louisiana there are road situations in which DOTD is

constrained from meeting all of the guidelines.

Desselle testified that he does not know what the cross-slope of the roadway

in question is because he had never measured it or found out that information, nor

did he know what the cross-slope was on the date of the accident. Desselle, who

identified himself as the corporate representative of the State who was there to

testify about policy, procedure, and general history for the overall department,

stated he took responsibility for not knowing the cross-slope of the area in question.

Regarding the six hundred feet of rutting in the roadway, Desselle testified

that there was not a specific threshold for rutting repair. He said that DOTD would

make the repairs based on recommendations from supervision and maintenance

crews, accident reports, and recommendations from the Louisiana State Police

following reports of dangerous areas on the roadway. When asked why DOTD did

not fix the ruts in the roadway, Desselle testified:

There, there was, no indication from anything that we were aware
of that the road was not safe. There was [sic] no accidents that we
were aware of. Uh, we have complaint records. There was [sic] no
complaints that I was aware of that uh, there was issues with the
roadway. So the visual inspections that Mr. Flanagan was doing
every two weeks, and the inspections that they were doing during
the rainfalls and after the rainfall events, everything was
functioning, was functioning and was safe, to a reasonably prudent
driver.

Desselle testified that Highway 1 where the accident occurred was originally

intended to become a four-lane highway; therefore, there was only a one-way slope

on the road. However, the road was never four-laned. In the meantime, various

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overlay or resurfacing projects were completed by DOTD. Regarding the 1991

project, Desselle stated:

We put an inch and a half of wearing course which is the top layer
and two inches of binder and then we, we surfaced the existing
shoulder and then we did some coal plaining like the plans say. Uh,
the note in the plans say develop a .025 cross slope where possible.
Again we had design standards at the time these plans were put
together. They were effective March 1990. They were called new
overlay standards and, and uh, they did say that and I read that
earlier, that it did require a .025 in the design standards. But
because we had already paved, we had a roadway like this and we
had shoulders on each side. We can’t come back and make this
thing a roof top. There’s, there’s just, you have to basically tear
the roadway up and start over. Well that’s not the type of work we
were coming in to do. . . . And that’s the reason why uhm, we had
a design exception that we didn’t have to meet the design standards.
Because the scope of the work wasn’t to build a new roadway. It
was just to resurface.

Thus, Desselle affirmed that although the design standards called for 2.5%

cross-slope, “it wasn’t possible at this location.” However, on cross-examination

he stated that none of the plans noted that it was not possible to meet the design

standards.

Dr. John Glennon, an engineer since 1964, testified that his education

includes traffic engineering, and highway design, maintenance, and safety. In 1964,

Dr. Glennon began working for the California Division of Highways conducting

highway research work, and he continued in this line of work around the country.

Dr. Glennon stated that his work encompassed evaluation of highway cross-slope,

rut-depth, and surface texture. His work further involved determining if road

conditions could lead to hydroplaning. He said that he has testified as an expert in

highway engineering in forty-five states.

Dr. Glennon discussed cross-sloping two lane highways, which means that

the road is highest in the center and sloped to the sides to drain off onto the

shoulder to prevent water from standing on the road and causing hydroplaning.

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Dr. Glennon measured the cross-slope and rut-depth where the accident

occurred. He said that based on his research, DOTD’s standard for cross slope in

the area where the accident occurred is 2.5%. Dr. Glennon said that the ruts in a

highway should be repaired when they are deep enough to hold enough water to

cause hydroplaning. He said that a general rule of thumb is that hydroplaning

occurs when a person is traveling at speeds of greater than fifty miles per hour and

there is a tenth of an inch of water on the pavement.

Dr. Glennon then reviewed the cross-slope measurements he took at 150,

200, 250, 300, 350, 400, 450, and 500 feet north of the impact point. The cross-

slope ranged from zero to .69%, far less than the 2.5% slope recommendation. Dr.

Glennon was asked, “Did you find that the State broke its own rules for cross

slope?” to which he answered, “Absolutely.” He next reviewed the rut-depth

measurements he obtained. First, he discussed DOTD’s use of 1/8 of an inch

measurement rather than 1/32 of an inch measurement he used:

Well it’s one, the, an 8th’s of an inch is four times greater
than a 32nd of an inch so it’s not near as accurate. I really have
trouble understanding how they measured an 8th’s of an inch
because surveys are not done that way. So I’m not at all sure. I
still haven’t heard how that was done. So I’m curious.

He then described how the water would fill the ruts:

[W]hen there’s a flat cross slope with deep ruts the water is going
to flow in those ruts until they’re full before it spills out to the side.
So if you’re talking about it raining we have a, say take a point
that’s right at the top of the hill and the rain drop falls there. That
rain drop will go downhill in the rut. The next 10 th of a foot
there’s a rain drop, it goes downhill. Next, down, down, down. It
keep accumulating as it goes downhill until that rut is full. And
then some it will spill out to the side actually very slowly because
the cross slope is not very uh, very steep. So the ruts will remain
full all the way probably to the bottom of the hill in this case. Uh,
and some of it spilling across. Of course, . . . it won’t spill out of
the right rut until the left rut, water comes out of the left rut will go
into the right rut and it will fill until it spills out so. Uh, you know
it’s a cumulative process going down the hill.

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Dr. Glennon opined that he determined that if the cross-slope had been

correct, most of the ruts would not have held water at all except for the deepest ruts,

which would have held less than a tenth of an inch of water.

Dr. Glennon then discussed variables that could contribute to hydroplaning

other than water depth in the ruts, such as tread wear, vehicle speed, and surface

conditions of the road. Dr. Glennon testified that all of the tires on Royer’s work

truck met legal requirements for tread depth, and there was no indication that

Royer was speeding. Dr. Glennon concluded that an unreasonably dangerous

condition existed on Highway 1 that caused Royer to hydroplane because of the

flat cross slope, improper rut depth, and smooth surface texture that caused Royer’s

truck to hydroplane. Dr. Glennon said that the water depth of the ruts was five to

six times more than the minimum required to hydroplane.

David Christophe, Jr., a truck driver who lives across the street from

Pomerantz, testified that Louisiana Highway 1 where the accident occurred only

holds water when it “pours down rain at the bottom of the hill or whatever.” He

also said that he has never witnessed or known of any accidents in the area other

than this one. Further, he said he was unaware of deep ruts in the area.

Mel Harrison, a professional land surveyor and DOTD employee, surveyed

the accident area in July 2013, at DOTD’s request. Harrison used a different

method to determine cross slope and gathered approximately 360 measurements in

a 400-500 foot area surrounding the accident. Harrison testified that grade of this

highway varied from 2.8% to 3%. As to slope he found “0.8% is what I measured

which is a little over an inch drop in the 12 foot lane.” Regarding the depressions

or ruts in the roadway, Harrison said the average rut depth was 3/8 of an inch

or .375. Harrison was questioned:

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Q. . . . So if hydroplaning happens in .10 inches of water your
measurements would indicate that those ruts averaged .375 inches
deep.

A. That’s correct.

Q. In the southbound lane?

A. Correct. In the area we’re concerned with, yes sir.

Q. Sure. More than 3 ½ times the amount of water Dr. Glennon
says it takes to hydroplane.

A. That’s correct.

....

Q. So the DOTD survey equipment showed that in the lane
Tommy was traveling the rut depth was .375 and the cross slope
was less than 1% at 0.8%?

A. That’s correct.

Dr. Joseph Blaschke, an engineer for forty years in the area of highway

design, traffic engineering, and accident reconstruction, testified that early in his

career he worked in traffic management for the military, conducted safety studies

on military installations throughout the United States, was a traffic engineer for the

City of Houston, was a professor, and a highway design consultant. Dr. Blaschke

examined the scene in June 2013. He did not think the ruts were extremely deep,

but he took no measurements, instead relying on survey measurements. He said

that in “most true hydroplane accidents” there is very high speed, very poor tires,

and a whole lot of water. He said that partial hydroplaning or “slip and sliding” is

very common and results in most accidents rather than true hydroplaning.

Dr. Blaschke opined when asked if it was more probable than not that Royer

hydroplaned:

Given the facts, there’s no indication of high speed
anywhere mentioned. His tires were not in that bad of shape. I’m
not quite sure about tire pressure cause I think the rear tires had
good pressure. One tire was flat the other front tire had low
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pressure but can’t guarantee that that front tire had low pressure at
the time of the accident. We don’t have intense rainfall, no record
of that. We’re not even sure, I can’t even say for sure it was rain at
the time of the accident. Certainly could have been. But there’s no
indication of intense rainfall. And I don’t know how you’re gonna
have a lot of water in these ruts if it’s not raining hard and there’s
no way to pond in the ruts so they’re gonna drain. So the factors
that go into hydroplaning simply don’t exist in this case. Therefore
I would think the chances of hydroplaning would be very slim.

Dr. Blaschke further testified that a 2.5% cross slope would not have made a

difference, stating that due to “extremely light rainfall” and the rut depths found

here.

On cross-examination, Dr. Blaschke stated that he had testified on behalf of

the State of Louisiana in approximately 650 cases and that 12% of his income

resulted from contracts with the State, which initially began in 1983. In 2014, Dr.

Blaschke was paid $135,602.53 by the State of Louisiana.

Liability

DOTD argues that it met its own maintenance standards of not repairing ruts

in a road unless the ruts are an inch or more in depth over a distance of ten feet.

DOTD claims that Royer failed to prove that these standards were unreasonable.

After reviewing the evidence presented to the jury, we find no manifest error in its

finding that the DOTD bore 100% of the responsibility for this accident.

Numerous experts, including the DOTD’s own experts, testified that the grading

and ruts in the road did not even meet DOTD’s standards. There can be no doubt

that DOTD was aware of the unreasonable condition on the roadway, since it

traveled the area in question many times, had gone out to the area to sweep away

water and dig trenches more than nineteen times, and had been informed by at least

one local resident that the area was dangerous. Accordingly, this assignment of

error is without merit.

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Collateral Source Rule

We review a trial court’s decisions regarding motions in limine using the

abuse of discretion standard. Scott v. Dauterive Hosp. Corp., 02-1364 (La.App. 3

Cir. 4/23/03), 851 So.2d 1152, writ denied, 03-2005 (La. 10/31/03), 857 So.2d 487.

Additionally, because this issue involves a question of law, a de novo review is

warranted. Cleco Evangeline, LLC v. Louisiana Tax Commission, 01-2162 (La.

4/3/02), 813 So.2d 351.

DOTD argues that it should receive a credit for medical bills and disability

wages paid by Stonehurst. DOTD states that the “principles of solidarity should

apply to create a credit in favor of the State of Louisiana in the amount of

payments made by the employer and/or it’s workers’ compensation” and that the

collateral source rule should not be applied to bar the State from receiving a credit,

because otherwise the plaintiff gets a windfall in the form of double recovery.

DOTD argues the double recovery amounts to punitive or exemplary damages, and

that no policy goals are furthered by applying the collateral source rule, because

wrongful conduct is still deterred since DOTD is still liable for the non-workers’

compensation paid portion of Royer’s lost wages, all future lost wages, all future

medical expenses, and general damages. DOTD relies on Cutsinger v. Redfern,

08-2607 (La. 5/22/2009), 12 So.3d 945, and Bellard v. American Central Ins. Co.,

07-1335, 07-1399 (La. 4/18/08), 980 So.2d 654, in support of its argument.

Bellard involved a workers’ compensation carrier and an uninsured motorist

carrier, neither of which were tortfeasors, although the UM carrier was solidarily

liable with the tortfeasor. The supreme court held that the collateral source

doctrine did not apply, and the uninsured motorist insurer was entitled to a credit

based on the payment made by the workers’ compensation insurer. Based on the

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supreme court’s analysis in Bellard, it would be hard to deny that a workers’

compensation carrier and a tortfeasor are solidary obligors to a certain extent:

[B]y virtue of the workers’ compensation act, the employer and/or
its workers’ compensation insurer is required to pay, subject to
statutory considerations, certain amounts which the injured
employee is entitled, under other provisions of law, to recover as
damages from tortfeasors. For example, disability wage and
medical benefits payable under the workers’ compensation act
compensate the injured employee for the same damage that a
tortfeasor would be compelled to pay under LSA-C.C. art. 2315.

Bellard, 980 So.2d 654 at 664-65.

Thus, both the workers’ compensation carrier and, in this case, DOTD

“share coextensive obligations to reimburse the tort victim for lost wages and

medical expenses incurred as a result of his or her injury at the hands of a

tortfeasor.” Id. at 665. This obligation is solidary regardless of the fact that the

sources of the obligations are different, the obligations are regulated by contracts

with differing limits, i.e., insurance contract terms, and the parties’ liability is in

differing amounts. Id. Further, pursuant to La.Civ.Code art. 1794, payment of the

debt owed to the creditor exonerates the other from the debt owed to the creditor.

In Bellard, the supreme court defined the collateral source rule and its

jurisprudential underpinnings:

[T]he rule provides that “a tortfeasor may not benefit, and an
injured plaintiff’s tort recovery may not be reduced, because of
monies received by the plaintiff from sources independent of the
tortfeasor’s procuration or contribution.” Under the collateral
source rule, payments received from an independent source are not
deducted from the award the aggrieved party would otherwise
receive from the wrongdoer. As a result, the tortfeasor is not
allowed to benefit from the victim’s foresight in purchasing
insurance and other benefits.

Several public policy concerns support the collateral source
doctrine. The concern most often voiced is that the tortfeasor
should not gain an advantage from outside benefits provided to the
victim independently of any act of the tortfeasor. The objective in
this regard is to promote tort deterrence and accident prevention.
Another concern advanced that, absent the collateral source rule,
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victims would be dissuaded from purchasing insurance or pursuing
other forms of reimbursement available to them.

Of the reasons cited in support of the rule, “[t]he major
policy reason for applying the collateral source rule to damages has
been, and continues to be, tort deterrence.” In other words, the rule
is grounded in the belief that the tortfeasor should not profit from
the victim’s prudence in obtaining insurance, and that reducing the
recovery by the monies paid by a third party would hamper the
deterrent effect of the law.

Bellard, 980 So.2d 654 at 668 (citations omitted).

Nevertheless, the supreme court noted that lower courts have struggled with

the situation when the victim receives compensation from an outside source,

because the goal of making the victim whole is thwarted when the victim recovers

the same element of damages twice. Id.

Neither Bellard nor Cutsinger involved a workers’ compensation insurer and

the tortfeasor as solidary obligors. They both involved UM carriers and workers’

compensation carriers as solidary obligors. Thus, it is much easier to determine

that the collateral source rule does not apply when neither of the solidary obligors

should be subject to the deterrence goal of the collateral source rule. In this case,

we have the tortfeasor and a workers’ compensation carrier. Clearly, DOTD

should be subject to the policy goal of deterring negligent behavior. On the other

hand, Bellard clearly held that a plaintiff does not provide consideration for

workers’ compensation benefits and “will receive a windfall or double recovery . . .

without having sustained a diminution in his patrimony because of the availability

of workers’ compensation benefits.” Id. at 669-670. Thus, we have competing

interests in this situation: tort deterrence versus gratuitous, i.e. no consideration

given, double recovery.

Cutsinger was decided shortly after Bellard and, again, involved a UM

carrier’s request for a credit for workers’ compensation paid to the plaintiff. In

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Cutsinger, a panel of this court distinguished Bellard by finding that the plaintiff

had given consideration for the UM policy as it was her own, rather than an

employer’s policy. The State Farm UM policy also contained a specific provision

stating that the amount it would owe under the UM policy would be reduced by

any amounts paid in workers’ compensation. The supreme court, referencing its

Bellard decision, had no trouble finding that the UM carrier and workers’

compensation carrier were solidary obligors. It further found that the payment by

the workers’ compensation carrier relieved the UM carrier of the obligation for the

same damages. The supreme court thoroughly reviewed Bellard and admonished

us for interpreting it “too narrowly.” Cutsinger, 12 So.3d 945 at 954. The court

stated:

While it is important to consider whether plaintiff paid for the
collateral source or suffered some diminution in her patrimony due
to the availability of the benefit to determine whether a double
recovery would result from application of the rule, this
consideration alone is not the determinative factor in deciding
whether the collateral source rule applies. The collateral source
rule exists to prevent the tortfeasor from benefiting from the
victim’s receipt of monies from independent sources. In this way,
the collateral source rule furthers the major policy of tort
deterrence. In this case, the tortfeasor is not requesting the credit
for workers’ compensation benefits paid. The tortfeasor will reap
no benefits if the collateral source rule is not applied and the
uninsured motorist carrier is allowed to reduce its payments to
plaintiff by the amount of workers’ compensation benefits she
received. The tortfeasor’s position will not change whether or not
the credit is allowed. Thus, application of the collateral source rule
would not further the major policy goal of tort deterrence.

Id.
The supreme court primarily relied on the UM policy language, which has

been found enforceable and not against public policy, in making its determination

that the collateral source rule did not apply in this instance. The supreme court

stated,

[W]e cannot say that she paid for uninsured motorist coverage to
compensate her for benefits such as lost wages and medical
15

payments . . . because the uninsured motorist policy she purchased
contained language specifying that any amount payable under
uninsured motorist coverage shall be reduced by any amount paid
under workers’ compensation benefits. Consequently, when she
paid the premium for the uninsured motorist coverage, she did not
pay for it to cover benefits paid by the workers’ compensation
insurer.

Id. at 954-55.

In neither Cutsinger nor Bellard did the plaintiffs give consideration, and the

goal of tort deterrence was not met. Another possibility is a situation where a

plaintiff gives consideration, but the primary goal of tort deterrence is not met

because the party claiming the offset is not the tortfeasor (i.e. a plaintiff’s private

insurer and insurance from another source). A third set of facts would involve a

plaintiff who gives consideration and the goal of tort deterrence is met. In this case,

we have a plaintiff who has not given consideration and a tortfeasor claiming a

credit for a payment made by a collateral source, a workers’ compensation insurer.

If the primary goal of the collateral source rule is tort deterrence, the collateral

source rule applies to a tortfeasor, even if consideration, in the form of policy

payments, is non-existent, as will always be the case when a workers’

compensation carrier is the collateral source. We find that the overriding policy of

tort deterrence outweighs the concern of double recovery.

This holding is in line with previous jurisprudence of this circuit. In Taylor

v. Premier Ins. Co. of Massachusetts, 98-1934, 98-1935, p. (La. App. 3 Cir.

6/30/99), 742 So.2d 35, 43-44, we stated:

The “collateral source” rule holds that a tortfeasor may not
benefit, and an injured plaintiff’s tort recovery may not be
diminished, because of benefits received by the plaintiff from
sources independent of the tortfeasor’s procuration or contribution.
Kidder v. Boudreaux, 93-859 (La.App. 3 Cir. 4/6/94),; 636 So.2d
282; Williamson v. St. Francis Medical Center, 559 So.2d 929
(La.App. 2 Cir. 1990), Brannon v. Shelter Mut. Ins. Co., 520 So.2d
984 (La.App. 3 Cir. 1987); Doerle v. State Through Dept. of
Highways, 147 So.2d 776 (La.App. 3 Cir. 1962). In Lee v. Cook,
16

482 So.2d 760, 763 (La.App. 5 Cir.), writ denied, 484So.2d 137
(La.1986), our brethren in the fifth circuit held:

Under the collateral source rule in action by an
injured employee against a third-party tortfeasor,
where the tortfeasor is established and the employer
does not intervene for reimbursement of compensation
benefits paid, the plaintiff is entitled to recover the full
amount of damages sustained by him without
deduction of the amounts he has received from his
employer as compensation benefits. (Citations
omitted).

See also Hall v. State Dep’t of Highways, 213 So.2d 169 (La.App 3 Cir. 1968),

and Wallace v. Pan American Fire and Cas. Co., 352 So.2d 1048 (La.App. 3 Cir.

1977), writs denied, 354 So.2d 209 (La. 1978). Accordingly, we find no abuse of

the trial court’s discretion in denying DOTD’s motion in limine and thus,

assignment of error number one is without merit.

Jury Verdict Form

In assignment of error number two, DOTD contends that the trial court erred

in denying its motion for Judgment Notwithstanding the Verdict (JNOV), because

the trial court erred in signing a judgment when defects in the jury form existed; to

wit, the form was internally inconsistent and resulted in double recovery of future

lost wages, or, alternatively, failed to properly classify loss of supportive services

as future medical expenses. 1 We need not address this assignment by DOTD

because it has waived any objection to the form by failing to preserve the issue for

appeal by contemporaneously objecting to it. DOTD only argued for the first time,

one week after the jury returned its verdict, that the jury verdict form was deficient.

It is well settled that a party’s failure to object to the jury form at the trial stage

results in the waiver of any alleged error. Guillot v. Guillot, 14-364 (La.App. 3 Cir.

12/23/14), 161 So.3d 841; La.Code Civ.P. art. 1812(B). Moreover, it is well

1
DOTD additionally argues in brief that “loss of future support” was not an available element of damages in this
case pursuant to La.R.S. 13:5106 while the plaintiff argues that loss of future support was in the nature of household
services. We need not address this issue because of DOTD’s failure to object.
17

settled that a jury is vested with great discretion in making damage awards, and,

therefore, the awards should rarely be overturned on appeal. Youn v. Maritime

Overseas Corp., et al., 623 So.2d 1257 (La.1993). The amount of the jury’s

damage award evidences its intent to adequately compensate the plaintiff for his

injuries. It is impossible for us to determine how the jury decided to award

$1,500,000.00, which was significantly less than even the most conservative life

care plans set forth by the plaintiff’s experts and significantly more than the plan

set forth by the defendant’s expert. Furthermore, $1,500,000.00 is not an

unreasonable award for the significant injuries and future life care sums testified to

at trial as provided below.

Dr. Pierce Nunley, an orthopedic spine surgeon, first saw Royer in January

2008, and over several years treated him conservatively for back pain with physical

therapy, home exercises, and facet joint injections. However, Royer underwent a

total disk replacement at L4-5 in January 2011. By February 2012, Royer was

released from Dr. Nunley’s care and told to return on an as-needed basis. Dr.

Nunley testified that Royer’s back pain and subsequent surgery was more probably

than not a result of the August 2006 accident.

Dr. Edwardo Gonzales-Toledo, a professor of radiology, neurology and

anesthesiology at LSU Health Sciences Center School of Medicine and director of

the department of radiology at the University Health Hospital, testified regarding

Royer’s traumatic brain injury (TBI). He noted that a CT scan from August 2006

showed he had a bleed in his brain in the left frontal lobe, which controls the main

functions for cognitive thinking, planning, and attention. Dr. Gonzales-Toledo

stated “it’s the most important lobe, because it’s the difference between human and

animals. It’s practically your personality.” A later CT scan of Royer’s brain in

early October 2003, showed post-traumatic encephalomalacia, which means the
18

destruction of the brain or loss of the normal brain tissue. The brain scarring is

permanent. Dr. Gonzales-Toledo continued to review detailed aspects of Royer’s

brain, as evidenced by MRI scans, that had been damaged by the accident that

affected his daily living, behaviors, routines, and abilities. Dr. Gonzales-Toledo

said the brain damage is permanent.

Dr. John Hinrichsen, an ophthalmologist and specialist in adult strabismus,

treated Royer in August 2007, for left hypertropia of his eye that resulted in left

superior oblique palsy, which has caused Royer to have headaches, tunnel vision,

blurry vision, and double vision. He testified that Royer’s TBI caused him to have

double vision and other visual problems for which strabismus surgery was required.

However, Dr. Hinrichsen did not know of Royer’s condition subsequent to 2008.

Amanda Keil, Royer’s sister-in-law, testified that, since the accident,

Royer’s personality has changed and he has outbursts.

Louis Chatagnier, who knew Royer from church before the accident

occurred, said Royer had changed. He stumbled when he walked; behaved oddly,

with his speech slurred at times; he did not complete sentences; and he would

“wander off” and was confused. However, he admitted on cross-examination that

Royer’s golf game had improved, and he was active in church.

Royer testified to how his TBI has affected him. He said that he cannot

remember things, particularly things dealing with numbers, dates, and times. He

testified that he now has very bad mood swings for no known reason. He said the

gets really mad and does not even recall what occurred. Royer said that he has lost

friends and contact with family members because of the mood swings. While

Royer has been in a prison ministry at church, he testified he has been unable to

return because he feels overwhelmed around people.

19

Dr. Gerald Leglue, a physiatrist, has treated Royer from 2007 through the

time of trial. He described Royer’s injuries: a brain bleed in his frontal lobe which

involves the incorporation of new memories, personality, and inhibitory reflexes on

emotions; pulmonary contusion of the left lung, multiple left rib fractures,

laceration to the spleen; and ascites (fluid in the abdomen free space). Royer

suffered from post-traumatic encephalomalacia (atrophy of brain tissue). Dr.

Leglue described that a person with a TBI can otherwise appear normal. He said

Royer suffered from memory impairments, attention and concentration

impairments, processing speed impairments, fine motor coordination impairments

in both hands, weakness in verbal comprehension and verbal memory, difficulty

organizing his activities, sleeping problems, suppressed appetite, limited social

interaction, lack of motivation, limited interest, anxiety, depression and personality

changes including short temper and irritability, which he said were “frankly

predictable with the frontal lobe damage.”

Dr. Leglue said that family counseling is a must, because the divorce rate

following TBI is extremely high. He recommended attendant care for four to six

hours per day because of safety issues; supervised physiotherapy at a medical

wellness center once per month; case management; home management;

housekeeping services; yearly laboratory testing; continuation of his current

medication, which he had been taking for years; and visiting a physical medicine

and rehabilitation doctor once per year for the rest of his life. Dr. Leglue further

recommended vocational rehabilitation and a pain management program. Dr.

Leglue opined that, from a physical standpoint, Royer could perform up to

medium-duty work.

Dr. Shelly Savant, a neurologist and psychiatrist, is a clinical assistant

professor at Tulane University and also runs a private medical practice that
20

involves the treatment of many people with brain injuries. Dr. Savant is also a

certified life care planner. Dr. Savant’s significant findings were that:

Royer was dealing with a traumatic brain injury which evident to
me on his imaging studies. Also I diagnosed him with a cognitive
disorder not otherwise specified which is just a fancy way of
saying he had difficulty with memory, executive functioning as
well as language in relation to his traumatic brain injury. I felt that
he had a personality change due to his traumatic brain injury. He
has a left cranial nerve 4, tracheal uh, trochlear nerve palsy which
means that he has a problem with his eye movements on the left
side. Also he had some depressive symptoms which I felt best fit
under the uh, umbrella of mood disorder due to a general medical
condition. Lumbar disk disease, chronic pain, opioid use and I
made uh, a list of two uh, types of injuries he’d sustained during
his accident. 2 That is he had a splenic laceration as well as a
pneumothorax and had to have a chest tube.

Dr. Savant further testified that Royer suffered from memory problems,

attention problems, disinhibition (i.e. flies off the handle very quickly), physical

and verbal aggression, and language problems. She testified that these problems

are all consistent with a frontal lobe injury. Additionally, Dr. Savant testified that

it increases Royer’s risk of early onset Alzheimer’s and dementia.

Dr. Savant then discussed Royer’s ability to care for his children during the

day while his wife works. She said that Royer’s wife had set up structure to protect

the kids (ages 2 and 4), such as only allowing Royer to microwave foods and

checking up on him multiple times during the day.

Dr. Savant was questioned why this current plan is not sufficient since it has

worked for Royer and his wife for the eight or nine years before trial. Dr. Savant

replied:

Well first of all you’ve got two young people who had a
normal life and now they don’t. Now you have one spouse with no
injury. You have the other spouse who’s brain injur[ed]. She has
to work two jobs, she works six days a week. He can’t put two and
two together in terms of brain functioning to do the laundry, to do
house cleaning. Like I said she’s had to set up this structure to

2
Dr. Savant noted that Royer is not abusing opioids; he is just prescribed them for his pain.
21

make sure the children are taken care of. He doesn’t do meal prep.
He cannot grocery shop. He can follow some lists if, if they have
to go the grocery store, basically she goes and he follows her
around. So they’ve gone this far but she’s exhausted. I mean she’s
having pretty much to do everything. Uh, the bills are on auto pay
for the most part. But if that structure wasn’t there she’d be doing
all of it because he can’t do it. Cognitively from a thinking
perspective he can’t do it.

Dr. Savant then discussed various life care plans that included amounts for

attendant care, case management, home management, and housekeeping. A worst-

case scenario in which Royer no longer had his wife as a caregiver and developed

Alzheimer’s, resulted in a plan amounting to more than $19 million dollars. In the

next plan, Dr. Savant assumed Royer’s need for assisted living was deferred until

he was in his sixties, but he received interval treatment for his TBI at a cost of $11

million. Dr. Savant then discussed a life care plan that assumed Royer and his wife

would remain together and she would remain his primary caregiver with no respite.

He would receive six hours of attendant care per day which would be $3.5 million.

Dr. Savant then discussed future medical care and future support. Future support

amounted to $2,836,376.48 and the amount for future medical care totaled

$681,376.48.

Zoe Pikes Meeks, a CPA for thirty-eight years and a forensic accountant,

testified that she performed an economic valuation of Royer’s past and future lost

wages. She determined that Royer’s past lost wages amounted to $330,310.00.

Future lost earning based on Royer’s inability to work at all amounted to

$949,449.00, and if he could return to work fifty percent of the time earning

minimum wage his future loss of wages amounted to $763,131.00.

Samantha Royer, Tommy’s wife, testified that, since the wreck, her husband

is forgetful, short tempered, and cannot do any of the things he used to do before

the accident, such as play on the church’s softball team or be involved in the prison

22

ministry. She described a series of lists and schedules that keep Royer on track on

a daily basis with regards to taking his medication and feeding his children. She

said that her primary job is just a few minutes from home, so she is able to check

on him when necessary. Samantha said that her mother used to help out, but, due

to Royer’s outbursts, she no longer does.

Dr. Glenn Hebert, a vocational expert and certified life care planner, testified

that he reviewed all of the medical records to determine if Royer would be

employable in the future. Dr. Hebert said that nothing in the record suggested that

he could not work, and that with “queuing,” or ways of reminding him to do certain

things, such as cell phone apps, he could manage certain tasks. Prior to this injury,

Royer did semi-skilled, medium-to-heavy-duty work. Thus, Dr. Hebert opined that

Royer could learn by doing on the job with supervision and a lifting restriction of

ten to fifty pounds per day. He said that Royer had a normal IQ and a lot of his

memory was normal, although he had some deficits and was slow on processing

some information. Dr. Hebert said he could perform jobs such as being a janitor, a

box packer, donation inspector at Goodwill, or the like. Dr. Hebert opined that he

could earn between $7.45 to $10.00 dollars per hour and could work full-time.

Dr. Hebert testified that Dr. Savant’s life care plan did not follow the

guidelines set forth by the International Association of Life Care Planners. He said

she did not consult with all of the specialists, nor did the medical records support

her conclusions. Dr. Hebert opined that no records supported Dr. Savant’s

testimony that Royer needed to attend TBI facilities on a yearly basis. He further

stated that Royer did not need to attend a residential brain injury program. He felt

that $15,000.00 per year for an accountant was an exorbitant cost. He further said

that financial management costs of $700,000.00 per year should not have been

included in a life care plan, because the money for future medical care is put in a
23

trust account and the bank provides trust officers to administer it. He additionally

saw no need for an interdiction at a cost of $10,000 per year. Dr. Hebert’s biggest

criticism of Dr. Savant’s plan was that he did not know where she came up with the

figures she used. Dr. Hebert opined that if Royer could clean house, babysit, cook,

play golf, ride a four-wheeler, and go hunting, he could work.

On the other hand, Dr. Hebert opined that costs for medical services such as

MRIs, CT scans, x-rays, physical therapy and rehabilitation, prescription

medications, and psychotherapy would be necessary expenditures. He determined

that Royer’s life care plan would amount to $506,674.48 over the course of his

lifetime.

On cross examination, Dr. Hebert admitted that he did not call to see if any

of these jobs were available, but he said that jobs of this sort have high turnover

rates and are always available. He felt that work would be therapeutic to Royer,

and that if he could take care of his two children every day, he was capable of

performing work outside the home. However, he had no personal knowledge of

how the Royers operated on a day-to-day basis.

Dan Cliffe, a CPA for thirty-four years, testified regarding potential

economic losses Royer suffered as a result of the accident based on the figures

provided by Meeks. He calculated Royer’s past loss wages to be $260,975.00 and

future lost wages, if he never returned to work of anywhere, from $602,270.00 to a

high of $777,335.00. If Royer could return to work part time at twenty hours per

week, the low value would be $441,625.00 and the high would be $505,970.

Regarding the amounts that Dr. Hebert testified to, Cliffe came up with a

present value future life career plan cost of $441,023.00. That amount increased to

$480,023.00 with home management added and $650,204.00 with home keeping.

24

Dr. Teresa Spencer, a neuropsychologist, was qualified as an expert in the

rehabilitation of patients with TBI and was hired by the state to perform an

evaluation of Royer’s brain function by measuring his cognitive and emotional

skills. She believed that he sustained a moderate brain injury as a result of the

August 2006 crash that caused cognitive impairments and weaknesses, emotional

problems, and neurobehavioral dysfunctions. Royer was seen in 2007 and 2009.

In 2007, he displayed average intellectual ability. In 2009, his intellectual

functioning remained in the average range, but his visual special abilities improved

while his verbal abilities stayed in the average range. Dr. Spencer determined that

Royer had average intellectual functioning before the accident as well. However,

he did suffer from some behavioral changes that were limiting him from doing

more such as low motivation and difficulty with anger control. In 2009, it was

recommended that Royer have assistance with his medical, financial, and

dispositional affairs but a guardian was not needed. Royer also underwent testing

to make sure he could safely drive, which he passed. In June 2014, it was noted

that he applied for Social Security disability benefits but was denied. Dr. Spencer

noted weaknesses on tests involving sustained and divided attention, mild to

moderate impairment of his processing speed, and delayed memory. Dr. Spencer

concluded that, overall, Royer had mild to moderate impairment of his cognitive

abilities.

Dr. Spencer opined that Royer did not need inpatient rehabilitation as he was

functioning in his home. She recommended continuing psychotherapy and

medication management, because Royer’s depression was worsening. Dr. Spencer

further opined that medication management and psychotherapy was warranted for

his lowered motivation and poor anger control. She said he would need

accommodations in a workplace as far as cognitive ability for the deficits he
25

experienced. She further said a case manager to help maintain employment would

be helpful. Dr. Spencer did not believe that Royer needed attendant care for four to

six hours, seven days a week, since he has been able to live independently since a

year removed from the accident. She did not feel that he needed any level of

supervision.

Thus, were we to provide a review of the damage award pursuant to the

agreed upon jury verdict form, we would find no error in it. Accordingly, this

assignment of error is without merit.

Trial Court’s Judgment

In assignment of error number three, DOTD argues that the trial court’s

judgment failed to incorporate the mandatory language set forth in La.R.S. 13:5106

regarding future medical expenses to be paid through the Future Medical Care

Fund (FMCF). Louisiana Revised Statutes 13:5106(B)(3)(c) (emphasis added)

states in part:

In any suit for personal injury against the state or a state
agency wherein the court pursuant to judgment determines that the
claimant is entitled to medical care and related benefits that may be
incurred subsequent to judgment, the court shall order that all
medical care and related benefits incurred subsequent to judgment
be paid from the Future Medical Care Fund as provided in R.S.
39:1533.2. Medical care and related benefits shall be paid directly
to the provider as they are incurred.

The trial court’s judgment is silent as to the payments to be made from the

FMCF. Accordingly, the trial court is instructed to amend its judgment to include

an order instructing the precise amount to be paid from the FMCF pursuant to

La.R.S. 13:5106(B)(3)(c).

Future Medical Care Fund-Interest

In assignment of error number four, DOTD argues that the trial court erred

in signing the jury’s verdict, which awarded legal and judicial interest on future

26

medical care expenses that are to be paid from the FMCF. 3 The trial court’s

judgment stated:

IT IS ORDERED, ADJUDGED AND DECREED that there be
judgment herein in favor of THOMAS C. ROYER against THE
STATE OF LOUISIANA THROUGH THE DEPARTMENT OF
TRANSPORTATION AND DEVELOPMENT in the sum of
THREE MILLION, SEVEN HUNDRED SIXTY-SIX
THOUSAND, NINE HUNDRED TWENTY-TWO DOLLARS
AND NINETY-SEVEN CENTS ($3,766,922.97) plus (1) legal
interest thereon pursuant to La.R.S. 13:5112(C) from July 9, 2007
(which is the date service was requested following judicial demand)
at the rate of 6% annum until the date this Judgment is singed, and
plus (2) legal interest accruing subsequent to the signing of this
Judgment at the rate fixed by La.R.S. 9:3500.

The supreme court recently addressed this res novo issue in Fecke v. Bd. of

Supervisors of Louisiana State University, 15-1806 (La. 9/23/16), __ So.3d __.4

The supreme court thoroughly discussed the legislative history and purpose behind

the FMCF and found in pertinent part that:

[W]e find that the legislature did not intend for interest to be paid
from the date of demand on judgment amounts which the statute
specifies are to be paid to the health care provider as they are
incurred. Moreover, it would make little sense for the legislature to
provide that an award for future medical care must be paid into the
FMCF, yet allow judicial interest on that award to be paid directly
to the claimant. The FMCF statute provides that “[i]nterest earned
on investment of monies in the fund shall be deposited in and
credited to the fund.” La. Rev. Stat. 39:1533.2(B). Admittedly, this
language refers to investment income rather than judicial interest;
nonetheless it suggests the legislature intended to keep all money
derived from the future medical care award in the fund. We believe
our interpretation is consistent with the overall purpose of the Act
as set forth in La. Rev. Stat. 13:5106(E).

Although the Feckes argue this case is distinguishable from
Hall [v. Brookshire Brothers, 02-2404 (La. 6/27/03), 848 So.2d
559] because the PCF is funded from private monies, we believe
the purpose of the legislation underlying each fund is quite similar.
The Medical Malpractice Act, adopted in response to the
3
The parties’ arguments in brief rely on cases before the rendering of Fecke by the supreme court. As these same
arguments are addressed in Fecke, we will not repeat them, as the supreme court’s ruling makes clear that interest
will not be allowed.
4
This case may be found at 2016 WL 5390302.
27

increasingly prohibitive costs of medical malpractice insurance,
sought to ensure the availability of safe and affordable health care
services to the public and to simultaneously limit the significant
liability exposure of health care providers. Hall, 02–2404 at 9–10,
848 So.2d at 565 (citation omitted). On the other hand, the Act,
enacted in response to the increased number of judgments against
the state as a result of the proscription of sovereign immunity,
sought to curb governmental liability abuses, to balance an
individual's claim against the needs of the public interests and the
common good of the whole society, and to avoid overburdening
Louisiana's economy and its citizens with new and/or increased
taxes. In both cases, the legislature sought to provide for the needs
of the tort victim claimant while simultaneously protecting the
public's interest, either directly (the FMCF preserves public funds)
or indirectly (the PCF limits the liability of health care providers
generally, helping make health care costs more affordable for all).

. . . . The Legislature exercised its constitutional authority in
amending La. Rev. 13:5106 (B)(3) to establish the FMCF, and if it
had intended to allow a claimant to recover interest on a future
medical care award placed into the FMCF, then it would have
provided such, but it did not.

Id. at ____.

Thus, there is no doubt that a plaintiff cannot receive interest on an award for

future medical care to be placed in the FMCF. Accordingly, that portion of the

trial court’s judgment awarding such interest is hereby reversed, and the matter is

remanded for an adjustment of the amount due Royer from DOTD.

CONCLUSION

The trial court’s judgment pertaining to DOTD’s liability, the application of

the collateral source rule, and the jury’s damages awards is affirmed. The trial

court’s judgment pertaining to the award of legal and judicial interest on future

medical care expenses to be placed in the FMCF is hereby reversed. The trial

court is instructed to amend its judgment to include the specific amount of future

medical expenses to be paid from the FMCF and to eliminate judicial interest on

28

the funds placed in the FMCF. Costs of this appeal are assessed to the defendant-

appellant, the State of Louisiana, through the Department of Transportation and

Development, in the amount of $17,261.35.

AFFIRMED IN PART; REVERSED IN PART;

REMANDED WITH INSTRUCTIONS.

29