John Thibodeaux v. Gulfgate Construction, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 18-676

JOHN THIBODEAUX, ET AL.

VERSUS

GULFGATE CONSTRUCTION, LLC, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 20154167
HONORABLE JULES DAVIS EDWARDS, III DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Candyce G. Perret,
Judges.

AFFIRMED AS AMENDED.

Melvin A. Eiden
Blake T. Couvillion
Rabalais & Hebert
701 Robley Drive, #210
Lafayette, LA 70503
(337) 981-0309
COUNSEL FOR DEFENDANT/APPELLANT:
J.M. Drilling, LLC

Edward O. Taulbee, IV
Taulbee & Associates
P.O. Box 2038
Lafayette, LA 70502-2038
(337) 269-5005
COUNSEL FOR PLAINTIFFS/APPELLEES:
Amy Thibodeaux
John Thibodeaux
John and Amy Thibodeaux obo Gabrielle Thibodeaux
John and Amy Thibodeaux obo Emily Thibodeaux

Max Michael Menard
P. O. Box 1196
Youngsville, LA 70592
(337) 857-6123
COUNSEL FOR PLAINTIFFS/APPELLEES:
Amy Thibodeaux
John Thibodeaux
John and Amy Thibodeaux obo Gabrielle Thibodeaux
John and Amy Thibodeaux obo Emily Thibodeaux

EZELL, Judge.

In this matter, J.M. Drilling (“J.M.”) appeals decisions of the trial court

below granting summary judgment in favor of John Thibodeaux on the issue of

liability, excluding some of its expert testimony, and denying its motions for

judgment notwithstanding the verdict (JNOV) or new trial. J.M. further appeals

the jury awards made to Mr. Thibodeaux and his spouse as excessive. For the

following reasons, we affirm the decision of the trial court, as amended.

The facts of this matter were described by this court in our previous case,

Thibodeaux v. Gulfgate Construction, LLC, 17-495, pp. 1-2 (La.App. 3 Cir.

11/22/17), 234 So.3d 100, 102, writ denied, 17-2149 (La. 2/23/18), 237 So.3d 519,

as such:

This negligence matter arose on June 9, 2015, when Plaintiff,
John Thibodeaux, injured his right leg while splicing fiber optic cable
on behalf of his employer, American Telephone & Telegraph (AT &
T), at 114 Meadow Gate Drive in the Sawgrass subdivision in
Lafayette, Louisiana. Thibodeaux had to access hand holes, which are
rectangular, underground vaults where fiber optic cables come
together and are spliced. The two hand holes at issue were equipped
with covers, i.e., lids, which rested on top of the ground. They were
located near a rectangular, pre-cast slab which held an AT & T
cabinet. On the day of his accident, Thibodeaux lifted a hand hole
cover and placed it by the AT & T cabinet when the ground beneath
him gave way, causing his right leg to fall into a hole, sustaining
injury.

Prior to Thibodeaux’s accident, Gulfgate Construction and J. M.
Drilling performed work on the property pursuant to separate
contracts with AT & T. Gulfgate Construction’s job, which was the
F1 part of the project, consisted of preparing a pre-cast slab, installing
a cabinet on top of the pre-cast slab, digging two hand holes, and
feeding fiber optic cable into hand hole number two. After Gulfgate
Construction finished its job, J. M. Drilling performed the F2 part of
the project, which consisted of installing fiber optic lines by accessing
the hand holes and feeding the cable out to the rest of the subdivision.

It is alleged that during operations on the property . . . J. M.
Drilling struck and damaged an underground sewer force main line.
The main line purportedly began leaking and caused a washout under

the pre-cast slab upon which the AT & T cabinet was situated,
ultimately forming the hole into which Thibodeaux fell. The main line,
which ran from a sewer lift station on the property to the street,
belonged to Water & Wastewater Utilities, Inc. (Wastewater), the
owner and operator of the lift station. Gulfgate Construction repaired
Wastewater’s broken main line after Thibodeaux’s accident.
Wastewater had not marked its main line prior to the commencement
of work performed by Gulfgate Construction and J. M. Drilling. The
hand holes had to be repositioned as a result of the existence of the
underground main line.

On August 24, 2015, Thibodeaux and his wife, Amy,
individually and on behalf of their minor daughters, Gabrielle and
Emily, filed suit against [J.M. Drilling,] Gulfgate Construction,
Milton Water System, Inc., and Wastewater.

Gulfgate and the remaining Defendants in the suit were dismissed on

summary judgments, which were upheld by this court and had writs denied by the

supreme court. J.M. remains as the only defendant in this case.

Mr. Thibodeaux then filed a motion for summary judgment on the issue of

liability, which was granted by the trial court. The suit then proceeded to a jury for

the determination of damages. The jury awarded Mr. Thibodeaux, among other

amounts, future medical expenses in the amount of $500,000.00; loss of future

earning capacity in the amount of $2,275,000.00; loss of household services in the

amount of $90,000.00; and loss of consortium to Mrs. Thibodeaux in the amount

of $150,000.00. From that decision, J.M. appeals.

On appeal, J.M. asserts six assignments of error. J.M. claims that the trial

court erred in granting Mr. Thibodeaux’s motion for summary judgment on the

issue of liability; it claims in separate assignments of error that the jury awards

were excessive for future medical expenses, loss of future earning capacity, and

loss of consortium; that the trial court erred in granting Mr. Thibodeaux’s motion

in limine precluding the testimony of Dr. Greg Gidman as duplicative; and it

claims the trial court erred in denying its motion for new trial/JNOV.

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SUMMARY JUDGMENT

J.M. first claims that the trial court erred in granting summary judgment in

favor of Mr. Thibodeaux on the issue of liability, as it claims genuine issues of

material fact exist as to the cause of the hole. We disagree.

Summary judgment procedure is favored and “is designed to secure the just,

speedy, and inexpensive determination of every action . . . . and shall be construed

to accomplish these ends.” La.Code Civ.P. art. 966(A)(2). In reviewing the trial

court’s decision on a motion for summary judgment, this court applies a de novo

standard of review. Jackson v. City of New Orleans, 12-2742, 12-2743 (La.

1/28/14), 144 So.3d 876, cert. denied, ____ U.S. ____, 135 S.Ct. 197 (2014).

The burden of proof is on the mover unless the mover will not bear the

burden of proof at trial, in which case the mover is not required to negate all

essential elements of the adverse party’s claim, but only to point out to the court

the absence of factual support for one or more of the elements necessary to the

adverse party’s claim. La.Code Civ.P. art. 966(D)(1). “The burden is on the

adverse party to produce factual support sufficient to establish the existence of a

genuine issue of material fact or that the mover is not entitled to judgment as a

matter of law.” Id.

“After an opportunity for adequate discovery, a motion for summary

judgment shall be granted if the motion, memorandum, and supporting documents

show that there is no genuine issue as to material fact and that the mover is entitled

to judgment as a matter of law.” La.Code Civ.P. art. 966(A)(3).

A fact is material if it potentially ensures or precludes recovery,
affects a litigant’s ultimate success, or determines the outcome of the
legal dispute. A genuine issue of material fact is one as to which
reasonable persons could disagree; if reasonable persons could reach

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only one conclusion, there is no need for trial on that issue and
summary judgment is appropriate.

Jackson, 144 So.3d at 882.

J.M. claims that the trial court erred in granting Mr. Thibodeaux’s motion

for summary judgment, as there exists a genuine issue of material fact as to the

cause of the damage to the pipe. J.M. claims that the testimony of its employee,

Mark Moore, that the J.M. crew never hit the pipe was sufficient to defeat the

motion for summary judgment. We disagree.

The depositions and exhibits in the record paint a clear picture of what

happened to cause the sinkhole that injured Mr. Thibodeaux. The pipe at issue was

pressure tested and found to be working with no leaks as of December 9, 2014.

Gulfgate and J.M. were the only contractors to work on the lot after that time.

John Smith, a contractor for Gulfgate, testified that they uncovered the pipe while

installing the hand holes that the fiber optic line would run through in January of

2015. They uncovered roughly ten to fifteen feet of pipe in order to avoid

damaging it while working. He testified that the pipe was unharmed during their

work on the hand holes. This testimony was confirmed by another Gulfgate

contractor, Adam Romero, who was present during the work. Both men testified

that Gulfgate recovered the pipe in an undamaged state.

Harold Broussard testified that he went to the lot for Gulfgate in February to

do a site inspection as preparation for further work. There he encountered a

contractor complaining about what a hassle the job was. When he returned to the

site two days later, he encountered a large area of disturbed earth, as if a hole had

been dug and recovered. This disturbed dirt was located in the area between the

pre-cast slab and the street, between the hand holes, and atop the area where

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Gulfgate had previously discovered the pipe. That area had not been dug up two

days before. That day, he also found a ten to twelve-foot section of pipe that was

bent and mangled, as if it had been pulled up by an excavator, laying on the ground.

Again, that had not been there two days prior.

After Mr. Thibodeaux’s accident, Mr. Smith and Mr. Romero returned to the

job site to investigate for Gulfgate and AT&T. When they examined the sinkhole,

they found that it went back from the hand hole to roughly a foot under the

concrete slab. There, they found a broken section of pipe. This was the same pipe

they had previously uncovered. They began digging from the slab toward the road

to attempt to repair the pipe and found that a ten to twelve-foot section of pipe was

completely missing. This matched the length of pipe found by Mr. Broussard,

which was still laying in the lot at the time of the accident. The pulled, bent

section of pipe matched the sewer line perfectly in size, type, and markings. Kelly

Vice testified for Gulfgate, confirming Mr. Broussard’s testimony that the pipe

section in evidence looked like it had been pulled up and broken by an excavator.

Mr. Romero testified that leaks from broken pipes would cause a washout and lead

to a sinkhole.

Mark Moore testified for J.M., issuing blanket denials that his crew damaged

the sewer line. However, he noted that J.M. dug in the vicinity with an excavator

and it had done so assuming there was no sewer line in the area, despite the

obvious presence of the sewer station fence just feet away from the work area. He

admitted that J.M. dug deeper than the three-foot depth the sewer pipe was located

at, noting that water filled the holes they dug, making it impossible to see the

bottom of the holes. Critically, J.M. exhibit five, attached to his deposition, marks

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the location of two bore holes dug by J.M., unquestionably placing them directly

atop the damaged pipe.

Pictures show an area of disturbed earth atop the sewer line, as Mr.

Broussard had described. Another picture, attached as Gamez one, shows that the

fiber optic line installed by J.M. was situated a mere eight to twelve inches away

from the sewer line, and located at a depth below it. Mr. Moore was clear that

each of the bore holes J.M. was excavating in the direct area of the pipe were four

feet square and at a depth of at least four feet due to the wet conditions.

It is clear that J.M. was digging in the vicinity of the sewer line, with an

excavator, digging deeper than the broken pipe. It is near impossible that J.M. dug

the two, four-foot square holes in the area marked in exhibit five at the depth

indicated by Mr. Moore without hitting the pipe. This is clearly reiterated by the

photo attached as Gamez one. J.M. offered no evidence supporting any other

source of damage to the pipe. The record contains sufficient evidence to make it

clear that J.M. damaged the sewer line, which precipitated the leak, that caused the

sinkhole. We find that Mr. Moore’s blanket denials do not create a genuine issue

of material fact in the face of the other overwhelming evidence and that there

remains no other reasonable hypothesis as to how the line was damaged. We can

find no error in the trial court’s finding that no genuine issue of material fact exists

as to the cause of the damage to the pipe.

J.M. further claims a genuine issue of material fact exists in that it claims

that it is possible that the dirt around the hand hole could have been improperly

tamped down. J.M. claims this could have led to a hole being created, citing the

deposition testimonies of Kelly Vice and Mr. Thibodeaux. Most crucially, neither

of these men testified in the deposition excerpts attached to the motion for

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summary judgment that improper tamping of the dirt would cause a sinkhole, but

merely “sinkage.” Moreover, it is crystal clear that the void that caused Mr.

Thibodeaux’s injury was not mere sinking of the ground, but a collapse of a

roughly three-foot sinkhole, as previously noted by this court. 1 Further, this

hypothesis completely ignores the ten foot, broken, and unearthed section of pipe

in evidence. “[A]ssertions of . . . implausible hypotheticals do not create genuine

issues of material fact sufficient to defeat summary judgment.” JPMorgan Chase

Bank, N.A. v. Andrus, 08-1160, p.5 (La. App. 3 Cir. 6/3/09), 10 So.3d 1286, 1290.

We find no error in the trial court’s grant of Mr. Thibodeaux’s motion for summary

judgment. This assignment of error is without merit.

DAMAGES

J.M. next sets forth three assignments of error concerning damages awarded

by the jury. J.M. claims the jury abused its discretion in granting excessive awards

for future medical damages, for future loss of earning capacity, and for loss of

consortium. We disagree as to future medical damages and loss of consortium, but

agree as to future loss of earning capacity.

Our jurisprudence has consistently held that in the calculation of general

damages, considerable discretion is left to the jury. Coco v. Winston Indus., Inc.,

341 So.2d 332 (La.1976). The discretion vested in the jury is great, even “vast,” so

that an appellate court should rarely disturb an award of general damages. Youn v.

Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S.

1114, 114 S.Ct. 1059 (1994). Upon appellate review, general damage awards will

1
In our previous grant of summary judgment to Gulfgate, this court noted it was a break
in “the main line, which caused the leak, which caused the washout, which formed the hole into
which Thibodeaux fell and was injured.” Thibodeaux, 234 So.3d at 106.

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be disturbed only when there has been a clear abuse of that discretion. Coco, 341

So.2d 332.

The role of an appellate court in reviewing general damages is
not to decide what it considers to be an appropriate award, but rather
to review the exercise of discretion by the trier of fact. Wainwright v.
Fontenot, 00–0492 (La.10/17/00), 774 So.2d 70, 74; Youn, 623 So.2d
at 1261. The initial inquiry is whether the award for the particular
injuries and their effects under the particular circumstances on the
particular injured person is a clear abuse of the “much discretion” of
the trier of fact. Youn, 623 So.2d at 1260. Reasonable persons
frequently disagree about the measure of general damages in a
particular case. Youn, 623 So.2d at 1261. It is only when the award is,
in either direction, beyond that which a reasonable trier of fact could
assess for the effects of the particular injury to the particular plaintiff
under the particular circumstances that the appellate court should
increase or decrease the award. Id. If the appellate court determines
that an abuse of discretion has been committed, it is then appropriate
to resort to a review of prior awards, to determine the appropriate
modification of the award. Prior awards under similar circumstances
serve only as a general guide. In such review, the test is whether the
present award is greatly disproportionate to the mass of past awards
for truly similar injuries. Id.; Theriot v. Allstate Ins. Co., 625 So.2d
1337, 1340 (La.1993).

Mack v. Wiley, 07-2344, pp.15-16 (La. App. 1 Cir. 5/2/08), 991 So.2d 479, 490,

writ denied, 08-1181 (La. 9/19/08), 992 So.2d 932. Damages awarded by a jury

are to be reviewed in the light most favorable to the prevailing party. O’Riley v.

City of Shreveport, 30,107 (La.App. 2 Cir. 1/23/98), 706 So.2d 213, writ denied,

98-752 (La. 5/1/98), 718 So.2d 418.

Future Medical Awards

J.M. first contends the jury erred in awarding excess damages for future

medical expenses. J.M. notes that the $500,000.00 future medical damages award

exceeds the costs set forth in the life care plans, which ran from roughly

$400,000.00 to $430,000.00. However, the $500,000.00 award given by the jury

may account for expenses related to contested Supartz injections to Mr.

Thibodeaux’s knee, as well as future surgeries, including a knee replacement

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surgery and a hip nerve release, which were not in the life care plans. J.M. claims

these expenses were not proven. We find that the medical testimony presented

produced sufficient evidence to justify these awards.

As noted in Goza v. Parish of West Baton Rouge, 08-86, pp. 21-22 (La.App.

1 Cir. 5/5/09), 21 So.3d 320, 337, writ denied, 09-2146 (La. 12/11/09), 23 So.3d

919, cert denied, 560 U.S. 904, 130 S.Ct. 3277 (2010):

An award of future medical expenses is justified if there is
medical testimony that they are indicated and setting out their
probable cost. Hanks v. Seale, 04–1485, p. 16 (La.6/17/05), 904 So.2d
662, 672. Nevertheless, when the record establishes that future
medical expenses will be necessary and inevitable, courts should not
reject the award because the record does not provide the exact value,
if the court can determine from the record, past medical expenses, and
other evidence a minimum amount that reasonable minds could not
disagree would be required. Levy v. Bayou Indus. Maintenance
Services, Inc, 03–0037, p. 9 (La.App. 1st Cir.9/26/03), 855 So.2d 968,
975, writs denied, 03–3161, 03–3200 (La.2/6/04), 865 So.2d 724 and
727. In such a case, the court should award all future medical
expenses that the medical evidence establishes that the plaintiff, more
probable than not, will be required to incur. Hymel v. HMO of
Louisiana, Inc., 06–0042, pp. 26–27 (La.App. 1st Cir.11/15/06), 951
So.2d 187, 206, writ denied, 06–2938 (La.2/16/07), 949 So.2d 425.
Although future medical expenses must be established with some
degree of certainty, they do not have to be established with absolute
certainty, as an award for future medical expenses is by nature
somewhat speculative. Grayson v. R.B. Ammon and Associates, Inc.,
99–2597, p. 35 (La.App. 1st Cir.11/3/00), 778 So.2d 1, 23, writs
denied, 00–3270, 00–3311 (La.1/26/01), 782 So.2d 1026, 1027

Here, Dr. Stubbs testified that the damage to Mr. Thibodeaux’s knee was

chronic and permanent. He testified that it was more probable than not that Mr.

Thibodeaux would need a knee replacement in the future due to his fall, though he

was too young to undergo the procedure at this time. To hold Mr. Thibodeaux

over until he reached an age where a knee replacement would be suitable, Dr.

Stubbs testified that Supartz injections would be necessary. Dr. Stubbs stated that

these injections would be useful in lubricating the knee to prevent further

9

deterioration and to prolong the life of Mr. Thibodeaux’s natural knee. Dr. Stubbs’

life care plan for Mr. Thibodeaux stated that these injections would be needed at a

rate of five injections every six months for life. Mr. Thibodeaux testified that he

wanted the injections in order to extend the time before a knee replacement, in

order to prevent requiring a second knee replacement surgery, even if he did not

experience any pain reduction with the injections. The jury’s award including the

Supartz injections was supported by the record, and we can find no error in the jury

awarding the costs of those injections.

We further find that the above medical testimony produced a sufficient basis

for the jury’s finding that Mr. Thibodeaux will need other treatment for his knee

problems for the rest of his life, including an eventual total knee replacement.

Likewise, there exists in the record a reasonable factual basis for the jury’s finding

that a hip nerve release surgery would be required. Dr. John Sledge testified that

the fall caused Mr. Thibodeaux to suffer from meralgia paresthetica, or numbness

due to damage to the femoral nerve. He testified that this diagnosis was confirmed

by two tests, a nerve block and an EMG. Dr. Sledge stated that because injections

and physical therapy had not worked for Mr. Thibodeaux, he was likely to wind up

needing nerve release surgery on his hip to alleviate his pain. Mr. Thibodeaux

testified that, although he was hesitant to undergo additional surgery after his two

knee surgeries failed to reduce his pain, he would plan on having the surgery.

There was a reasonable factual basis in the record for the jury awarding Mr.

Thibodeaux the costs of the nerve release surgery.

Although Mr. Thibodeaux failed to present any direct evidence as to the

specific cost of these surgeries in the life care plans in evidence, future medical

expenses are a legitimate item of damages even where the result of such future

10

treatment and its costs cannot be fixed with precision. Guillory v. Avondale

Shipyards, Inc., 448 So.2d 1281 (La.1984); Bly v. Prudential Prop. and Cas. Ins.,

589 So.2d 495 (La.App. 5 Cir. 1991). Moreover, the trial court can determine

future medical expenses on the basis of the record, past medical expenses, and

other evidence. Levy, 855 So.2d 968.

We find the awards beyond the life care plans for the future knee

replacement to be reasonable in light of other jurisprudence. An award of

$42,274.80 in future medical costs was awarded for a knee replacement in

Trueman v. City of Alexandria, 01-1130 (La.App. 3 Cir. 5/15/02), 818 So.2d 1021,

writ granted, 02-2166 (La. 11/15/02), 829 So.2d 410. This court also awarded

$60,000.00 for each knee replacement surgery to the plaintiff in Pryor v. Iberia

Par. Sch. Bd., 10-23 (La.App. 3 Cir. 6/16/10), 42 So.3d 1015, reversed on other

grounds, 10-1683 (La. 3/15/11), 60 So.3d 594.

Likewise, the life care plan submitted by Dr. Sledge set forth costs for

lumbar nerve decompression at a cost of roughly $80,000.00, with half that cost

being hospital costs and half being surgeon’s costs. It is not unreasonable that the

jury could use this as a basis to award a fraction of that amount for a hip nerve

decompression.

The life care plans in the record show future medical expenses running from

$400,000.00 to $430,000.00, without the required knee replacement and hip nerve

release. The jury clearly considered the life care plans in the records, as well as the

medical testimony setting forth the necessity for the additional future surgeries.

The jury obviously raised the award from the life care plans to include what it felt

were the approximate costs of future necessary surgeries. In light of the costs of

the future care established in the life care plans and viewing the damages awarded

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by the jury in the light most favorable to Mr. Thibodeaux as the prevailing party,

we can find no abuse of the jury’s vast discretion in its award of future medical

expenses in the amount of $500,000.00.

Loss of Future Earning Capacity

We do, however, agree with J.M. as to the jury’s findings as to Mr.

Thibodeaux’s loss of future earning capacity. The record contains two competing

experts regarding loss of future earning capacity. Dr. Stuart Wood testified for J.M.

that Mr. Thibodeaux’s loss of future earning capacity was in the range of

$471,360.16. However, Dr. Wood was heavily scrutinized by counsel for Mr.

Thibodeaux regarding his methodology, and Dr. Wood himself testified that his

number did not take into account Mr. Thibodeaux’s planned retirement age, fringe

benefits, yearly union raises, and that his numbers relied heavily on an average of

Mr. Thibodeaux’s past earnings, which deeply discounted a promotion Mr.

Thibodeaux earned one year prior to the accident.

Dr. Wood’s testimony was countered by that of Dr. George Rice, who used a

much higher yearly lost wage based on Mr. Thibodeaux’s recent promotion and the

earnings of Mr. Thibodeaux’s junior partner at AT&T, Chris Pacetti. Mr. Pacetti

and Mr. Thibodeaux both testified that the two men had very similar attitudes

toward work, overtime, travel, and making as much money as possible. They

agreed that their hours would be a near exact match, though Mr. Thibodeaux was

senior to Mr. Pacetti and, therefore, had greater opportunities for overtime and to

earn more money. Dr. Rice used Mr. Thibodeaux’s stated retirement goal in his

calculations, and factored in the many fringe benefits Mr. Thibodeaux received

from AT&T. Dr. Rice came to a calculation that Mr. Thibodeaux’s loss of future

earning capacity was $2,152,134.00.

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We find that the jury simply found Dr. Rice’s methodology and testimony

more compelling, and that this amount was amply supported by the record.

However, the jury awarded Mr. Thibodeaux $2,275,000.00, or $122,866.00 greater

than any evidence in the record supports. We find $2,152,134.00 is the highest

amount reasonably within the discretion of the fact finder under the circumstances

of this case. As there is simply nothing in the record to support the greater award,

the jury had no basis for it, and, thus, abused its discretion. We hereby reduce the

award of loss of future earning capacity to $2,152,134.00.2

Loss of Consortium

J.M.’s final assignment of error concerning damages deals with the jury’s

award for loss of consortium. J.M. claims that the award of $150,000.00 is

excessive. Loss of consortium includes pecuniary such elements as loss of services

and nonpecuniary such components as loss of love, companionship, affection,

society, sexual relations, comfort, and solace. See Emery v. Owens-Corp. 00-2144,

(La.App. 1 Cir. 11/9/01), 813 So.2d 441, writ denied, 02-635 (La. 5/10/02), 815

So.2d 842.

The jury heard emotional testimony from Amy Thibodeaux, who stated that

her husband of twenty-four years is a changed man since the accident. She stated

that his daily struggles with his pain prevent him from doing simple things. The

record reveals that Mr. Thibodeaux’s activities have become limited due to his pain

2
We note for thoroughness that the jury clearly believed Dr. Wood over Dr. Rice on the
amount of past lost wages. There, the jury agreed with Dr. Wood that the lost wage damages
were $205,935.00, rather than the $329,468.00 claimed by Dr. Rice. We note that the difference
in the past lost wages award is almost exactly the amount awarded over what was proven for loss
of future earning capacity. While it seems as if the jury may have been attempting some
balancing between the two, the award for past wages was set forth with specificity and is final, as
it has not been challenged in this court. Though we may feel we may understand what the jury
was attempting to do with the awards, we cannot sustain a loss of future earning capacity award
which has no factual support in the record.

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and have stopped the couple from being able to do the outdoor activities that they

loved doing together. The family can no longer take their yearly camping

vacations because Mr. Thibodeaux can not do the work associated with their travel

trailer. The family used to hunt, fish, and do several outdoor activities together.

They can no longer do those things since the accident. Mr. Thibodeaux is no

longer the “happy-go-lucky” man his wife once knew. His youngest daughter,

Gabby, testified that he is now short-tempered and has great anxiety over bills.

Mrs. Thibodeaux testified that the family’s financial burden has fallen on her now

that Mr. Thibodeaux can no longer work. She testified that she has to work more

and longer hours to help make ends meet, and that the accident has changed her

life, as well as his. She asserted that the entire family is struggling as a result of

his injury.

The fact finder has much discretion in the assessment of general damages,

including damages for loss of consortium. La.Civ.Code art. 2324.1. A loss of

consortium award is a fact-specific determination to be decided on a case-by-case

basis and is disturbed only if there is a clear abuse of discretion. Lemoine v. Mike

Munna, L.L.C., 13-2187 (La.App. 1 Cir. 6/6/14), 148 So.3d 205. After a review of

the record, we find no abuse of the jury’s discretion in its award of general and

loss-of-consortium damages.

J.M. further challenges a separate award of $90,000.00 for loss of household

services, claiming this is duplicative of the loss of consortium award. However, Dr.

Rice provided testimony that the maintenance at Mrs. Thibodeaux’s beauty salon

would cost them between $92,920.00 and $111,904.00, as Mr. Thibodeaux could

no longer provide that labor free of charge due to his injury and outside help would

need to be hired. We do not find the $90,000.00 award duplicative. Rather, we

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find it to be a separate claim with factual support in the record, and we, therefore,

cannot find it to be an abuse of the jury’s vast discretion.

MOTION IN LIMINE

J.M. next claims that the trial court erred in granting Mr. Thibodeaux’s

motion in limine precluding the testimony of Dr. Greg Gidman on the basis that it

would be cumulative. The trial court is vested with vast discretion in connection

with the admissibility of evidence. It will not be reversed absent an abuse of that

discretion. Maddox v. Omni Drilling Corp., 96-1673 (La.App. 3 Cir. 8/6/97), 698

So.2d 1022, writs denied, 97-2766, 97-2767 (La. 1/30/98), 709 So.2d 706; Tingle v.

Am. Home Assurance. Co., 10-71, 10-72 (La.App. 3 Cir. 6/2/10), 40 So.3d 1169,

writs denied, 10-1580, 10-1578, 10-1564, 10-1562 (La. 10/29/10), 48 So.3d 1095,

10-1562, 10-1563 (La. 10/29/10), 48 So.3d 1096. Dr. Gidman performed an

independent medical examination on Mr. Thibodeaux, as did Dr. Stanley Foster,

who’s testimony was allowed. Counsel for J.M. indicated at the hearing below that

Dr. Gidman’s testimony would be the same as Dr. Foster’s regarding Mr.

Thibodeaux’s knee injury. We cannot find that the trial court abused its vast

discretion in finding that Dr. Gidman’s testimony should be excluded as

cumulative.

JNOV

A motion for JNOV may be granted on the issue of liability, damages, or

both. La.Code Civ.P. art. 1811. If the verdict is supported by competent evidence

and is not wholly unreasonable, the trial judge may not set it aside. Finnie v.

Vallee, 620 So.2d 897 (La.App. 4 Cir.), writ denied, 625 So.2d 1040 (La.1993).

Based on our above findings concerning liability and damages, the jury’s verdict is

supported by the record and not unreasonable. Therefore, we pretermit any further

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discussions regarding J.M.’s allegations regarding the trial court’s denial of its

motions for new trial and JNOV, as they are rendered moot by those above

findings.

For the above reasons, the decisions of the trial court and jury below are

hereby affirmed as amended. We amend the jury’s award of loss of future earning

capacity to reduce the award from $2,275,000.00 to $2,152,134.00. The decisions

and awards are affirmed in all other respects. Costs of this appeal are hereby

assessed against J.M. Drilling.

AFFIRMED AS AMENDED.

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