Shawn Copell v. Arceneaux Ford, Inc. and Amtrust North America, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-299
SHAWN COPELL

VERSUS

ARCENEAUX FORD, INC., ET AL.

************
APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, DOCKET NO. 128759
HONORABLE GREGORY P. AUCOIN, DISTRICT JUDGE

************
SYLVIA R. COOKS
JUDGE
************

Court composed of Sylvia R. Cooks, Chief Judge, Jonathan W. Perry and Charles
G. Fitzgerald, Judges.

AMENDED IN PART AND, AS AMENDED, AFFIRMED; REVERSED IN
PART AND RENDERED.

Robert M. Brandt
Charles Brandt
Kyle Sherman
Kenny M. Habetz, Jr.
111 Mercury Street
Lafayette, LA 70503
(337) 800-4000
COUNSEL FOR PLAINTIFF/APPELLANT:
Shawn Copell

Lance Williams
McCranie, Sistrunk, Anzelmo, Hardy, McDaniel & Welch
195 Greenbrier Blvd., Suite 200
Covington, LA 70433
(504) 831-0946
COUNSEL FOR DEFENDANTS/APPELLEES:
Arceneaux Ford, Inc, et al.

COOKS, Chief Judge.

This appeal arose from a jury verdict on a claim for personal injuries suffered

by Plaintiff, Shawn Copell, through the negligence of Defendant, Arceneaux Ford.

FACTS AND PROCEDURAL HISTORY

On September 4, 2015, Plaintiff, Shawn Copell, brought his Ford F-150 truck

to Arceneaux Ford for an oil change and tire rotation. After the services were

completed, Mr. Copell left with his truck. He then drove approximately three miles,

when he began to notice the truck “bucking” and “swaying.” Mr. Copell then

attempted to pull off the road into a private drive when the truck came to a sudden

stop. Mr. Copell stated he was suddenly and severely jarred forward when the

vehicle abruptly stopped. It was acknowledged by Arceneaux Ford that the service

technician failed to tighten the lug nuts on the driver’s side rear tire, which caused

the tire to dislodge from Mr. Copell’s truck.

Mr. Copell immediately called Arceneaux Ford, which towed the truck back

to the dealership along with Mr. Copell. He was provided a rental car by the

dealership and told his truck would be repaired. He acknowledged he did go back

to work that day, but after feeling discomfort in his neck and experiencing a severe

headache, his supervisor sent him home. According to Mr. Copell and his wife,

Brandi, his symptoms worsened through the course of the night and he sought

medical attention the following day. Since it was a Saturday, Mr. Copell went to the

Urgent Care clinic, where x-rays were taken and he was given two injections for

pain and spasms.

After continuing to experience pain over the next few days, Mr. Copell began

treating with Dr. Sai Chennamsetty, a general practitioner. After months of

conservative treatment with no significant improvement, Dr. Chennamsetty ordered

2

a MRI. After reviewing the results, he was referred to Dr. William Brennan, a

neurosurgeon.

Dr. Brennan informed Mr. Copell he was suffering from a disc bulge with

narrowing of the neural foramen at the C5-6 level. After two courses of physical

therapy, home exercises and use of a traction kit failed to provide significant relief,

Dr. Brennan advised Mr. Copell surgery was his only viable option. On November

16, 2016, Mr. Copell underwent an anterior cervical discectomy and fusion surgery

at the C5-6 level.

Prior to the surgery, on August 4, 2016, Mr. Copell filed a Petition for

Damages against Defendants, Arceneaux Ford, and its liability insurer, Amtrust

North America, Inc., seeking “fair and just compensation from the Defendants in a

reasonable amount that will satisfy Petitioner’s demands for all damages.”

Following the November 16, 2016, surgical procedure, Defendants requested

an independent medical examiner, Dr. Henry Eiserloh, examine Mr. Copell and

review all his medical records. Dr. Eiserloh testified he saw no neurological defects

in Mr. Copell’s neck and questioned the necessity of the surgical procedure. Dr.

Brennan countered that, in his opinion, the surgery was mandated because there was

disc material from a herniated disc that was extending into the foramen and hitting

a nerve, causing significant pain to Mr. Copell. Dr. Eiserloh also questioned the

choice to perform an anterior cervical discectomy, opining that an artificial cervical

replacement surgery was a better option and would have significantly lessened the

likelihood of a second surgery. Dr. Eiserloh did agree with Dr. Brennan that a

second surgery would likely be required in the future.

On September 23, 2019, the matter proceeded to trial before a jury. Both sides

presented expert testimony as to the likelihood the incident caused Mr. Copell’s

injuries, as well as expert medical testimony as to the degree and severity of the

3

injuries. Mr. Copell requested the trial court instruct the jury on the presumption of

causation set forth in Housley v. Cerise, 579 So.2d 973 (La.1991). Defendants

objected to the inclusion of the Housley presumption. The trial court overruled

Defendants’ objection. After a several day trial, the jury returned a verdict awarding

Mr. Copell $16,000.00 in general damages, $104,000.00 in past medical expenses

and $95,000.00 in future medical expenses. Mr. Copell appeals the jury verdict,

asserting the following assignments of error:

1. The jury’s award of $16,000.00 for past and future pain and suffering
is abusively low.

2. The jury erred in failing to award Mr. Copell mental pain and suffering
past and future.

3. The jury erred in not awarding Mr. Copell loss of enjoyment of life and
disability and loss of function.

4. The jury erred in failing to award all future medical expenses.

Defendants answered Mr. Copell’s appeal, and asserted the following assignments

of error:

1. The trial court erred in denying Defendants’ motion in limine and
overruling Defendants’ objection at trial to the testimony of Dr.
Barczyk, Mr. Copell’s expert.

2. The trial court erred in overruling Defendants’ objection to Mr.
Copell’s requested jury charge on the Housley presumption.

3. The jury erred in awarding Mr. Copell general and special damages
based on the Housley presumption for this very minor incident, which
could not have caused the alleged injuries.

4. Alternatively, the jury erred in awarding $104,000.00 in past medical
expenses and $95,000.00 in future medicals based on the Housley
presumption, as the evidence does not support those awards.

ANALYSIS

We will first examine Defendants’ assignments of error, as much of the

argument it puts forward also relates to Mr. Copell’s arguments on appeal.

4

I. Daubert Challenge.

In its first assignment of error, Defendants argue that the trial court erred in

denying its motion to exclude the testimony of Mr. Copell’s witness, Dr. David

Barczyk, a chiropractor. Defendants argued Dr. Barczyk was “not a qualified

biomechanical engineer” and the trial court failed to adhere to the Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993) and State v. Foret,

628 So.2d 1116 (La.1993) gate-keeping function. Mr. Copell asserts that the trial

court’s admission of Dr. Barczyk’s testimony as an expert was proper under

Daubert/Foret and La.Code Evid. art. 702.

The trial court denied Defendants’ motion to exclude and allowed Dr. Barczyk

to testify as an expert in biomechanics as it relates to chiropractic treatment.

Pertinent to this decision, La.Code Evid. art. 702 provides:

A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion
or otherwise if:

(1) The expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or to
determine a fact in issue;

(2) The testimony is based on sufficient facts or data;

(3) The testimony is the product of reliable principles and
methods; and

(4) The expert has reliably applied the principles and methods to
the facts of the case.

The comments to article 702 and the jurisprudence establish that the trial court

has great discretion in determining who should be allowed to testify as an expert,

and the trial court’s decision should not be reversed on appeal absent clear error.

Mistich v. Volkswagon of Germany, Inc., 95-939 (La. 1/29/96), 666 So.2d 1073, on

rehearing on other grounds, 95-939 (La. 11/25/96), 682 So.2d 239; Taylor v.

Progressive Sec. Ins. Co., 09-791 (La.App. 3 Cir. 4/7/10), 33 So.3d 1081, writ

5

denied, 10-1024 (La. 9/17/10), 45 So.3d 1044; Cleland v. City of Lake Charles, 01-

1463, 02-805 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writs denied, 03-1380, 03-

1385 (La. 9/19/03), 853 So.2d 644, 645. Thus, we can only reverse the trial court’s

decision to accept an expert’s opinion if we find that conclusion to be clearly wrong.

We find no merit in Defendants’ challenge as to Dr. Barczyk’s qualifications.

Dr. Barczyk has been a state-licensed chiropractor for over twenty years. He served

as the President of the Chiropractic Association of Louisiana and was appointed to

serve on the Louisiana Board of Chiropractic Examiners. He also testified as to his

extensive post-graduate training in biomechanics and occupant kinematics relating

to motor vehicle trauma. He has attended crash courses conducted by the Spine

Research Institute of San Diego in conjunction with the Texas A & M University

biomechanics department. In 2016, Dr. Barczyk was certified from the

Accreditation Commission for Traffic Accident Reconstruction (ACTAR). Mr.

Copell notes that since his ACTAR qualification Dr. Barczyk has been accepted in

ten trials as an expert in the field of injury biomechanics. This court in Taylor, 33

So.3d 1081, 1086, as in this case, was tasked with a challenge as to the trial court’s

decision to allow this same expert, Dr. Barczyk “to testify regarding the

biomechanics of low-speed crashes.” After examining Dr. Barczyk’s qualifications,

this court agreed that he was qualified to testify as an expert regarding biomechanics

of the spine. We reach the same decision in this case.

Defendants also argued that Dr. Barczyk’s opinions should be excluded

because they were formulated by relying solely on the facts as testified to by Mr.

Copell. As a general rule, the factual basis of an expert’s opinion goes to the

credibility of the testimony, not its admissibility, and it is up to the opposing party

to examine the factual basis of the expert’s opinion in cross-examination. La.Code

Evid. art. 702; Rowe v. State Farm Mut. Auto. Ins., 95-669 (La.App. 3 Cir. 3/6/96),

6

670 So.2d 718, writ denied, 96-824 (La. 5/17/96), 673 So.2d 611. Thus, disputes as

to the factual basis of an expert’s opinion go to the weight of that opinion, “and it is

up to the opposing party to examine the factual basis of the opinion in cross-

examination.” Square v. LeBlanc, 04-1500, p. 7 (La.App. 3 Cir. 6/1/05), 903 So.2d

1178, 1183, writ denied, 05-1746 (La. 1/13/06), 920 So.2d 240.

For these reasons, we find that the trial court properly performed its Daubert

gate-keeping function in finding that Dr. Barczyk’s testimony was both reliable and

relevant. Thus, the trial court properly admitted Dr. Barczyk as an expert in the field

of biomechanics.

II. Housley Presumption.

In its second assignment of error, Defendants argue the trial court erred in

instructing the jury on the presumption of causation set forth in Housley. Louisiana

jurisprudence has long recognized that when a person was in good health prior to an

accident, and symptoms appear after the accident, that person’s injuries are

presumed to have resulted from the accident. Housley, 579 So.2d 973; Bernard v.

Hartford Ins. Co., 09-71 (La.App. 3 Cir. 6/3/09), 12 So.3d 1098, writ denied, 09-

1524 (La. 10/9/09), 18 So.3d 1285; Stoll v. Allstate Ins. Co., 11-1006 (La.App. 5

Cir. 5/8/12), 95 So.3d 1089; Munch v. Backer, 10-1544 (La.App. 4 Cir. 3/23/11), 63

So.3d 181; Thomas v. Comfort Ctr. of Monroe, LA, Inc., 10-494 (La.App. 1 Cir.

10/29/10), 48 So.3d 1228; Edwards v. LCR-M Corp., Inc., 41,125 (La.App. 2 Cir.

7/12/06), 936 So.2d 233. A plaintiff is entitled to the application of the Housley

presumption of causation if three elements are met: 1) the person was in good health

prior to the accident; 2) commencing with the accident, the symptoms of the

disabling condition appeared and continuously manifested themselves afterwards;

and 3) there is a reasonable possibility of a causal connection between the accident

and the disabling condition. Housley, 579 So.2d 973. The application of the Housley

7

presumption of causation to the facts is a question of fact and subject to manifest

error review. Detraz v. Lee, 05-1263 (La. 1/17/07), 950 So.2d 557; Layssard v.

State, Dep’t of Pub. Safety & Corrs., 07-78 (La.App. 3 Cir. 8/8/07), 963 So.2d 1053,

writ denied, 07-1821 (La. 11/9/07), 967 So.2d 511.

Defendants argue the Housley presumption was improper here because they

maintain Mr. Copell admitted to suffering from neck pain prior to the incident. Our

review of the record does not support this contention. There was some testimony by

Mr. Copell that on rare occasions he may have woken up and his neck was sore, but

there was absolutely no testimony of any kind of persistent, prior neck trouble. This

can be seen from the following colloquy which occurred when Mr. Copell was being

cross-examined:

Q. Mr. Copell, we were talking I think at the end there about you
exercising.

A. Yeah. I believe so. Yeah. I believe that’s where we were.

Q. We were talking about at some point before the break and you
agreed with me. I think you said from time to time you had neck pain.

A. No, not neck pain. I never said that.

Q. Okay. I thought you said in your workout you would have a sore
neck including neck pain.

A. (No response)

Q. I’ll ask it again.

A. Well okay. I –

Q. The jury will remember what you said.

A. Okay. I just truly don’t remember everything. I had neck pain
during work - - during.

Q. Are you telling us working out for fourteen (14) years, playing
soccer, you never had any pain in your neck one time ever?

A. I mean I think we all wake up, you know, from - - from sleeping
wrong or something, but that’s everybody - -

8

Q. Okay.

A. - - I believe has that.

Defendants also argue Mr. Copell’s long history of weightlifting since his teen years

should be construed as evidence that he was in poor health. They elicited testimony

from Dr. Eiserloh that strenuous weightlifting could cause wear and tear on the spine

and advanced degeneration. Defendants point to some complaints of back pain when

Mr. Copell was fourteen years old; however, there is no indication that Mr. Copell

had complained of any back pain for more than ten years. Nor did any problems

prevent Mr. Copell from leading a very active lifestyle. We find any prior

acknowledgment of minor neck or back pain and Mr. Copell’s choice to lead an

active lifestyle falls woefully short of rebutting the use of the Housley presumption

in this case. The trial court did not err in charging the jury with the Housley

presumption.

III. The Jury’s Damage Awards.

Both Mr. Copell and Defendants appeal the amounts awarded by the jury for

general damages and special damages. Initially, we note a major component of

Defendants’ argument that the jury awarded excessive general damages and special

damages is that the trial court erred in charging the jury with the Housley

presumption. As set forth earlier, we find that argument lacks merit.

A. General Damages.

This court in Gradnigo v. Louisiana Farm Bureau, 08-1198, pp. 6-8 (La.App.

3 Cir. 3/4/09), 6 So.3d 367, 372-73, set forth the appellate standard of review for

general damage awards:

General damages are “inherently speculative” and unable to be
fixed with mathematical certainty. Wainwright v. Fontenot, 00-492, p.
6 (La.10/17/00), 774 So.2d 70, 74 (citation omitted). This,
consequently, means that the assessment of the appropriate amount of

9

such damages is a question of fact to be determined on a case-by-case
basis, and because each case is different, the adequacy or inadequacy
of the award should be determined by the facts or circumstances
particular to the case under consideration. Youn v. Maritime Overseas
Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114
S.Ct. 1059, 127 L.Ed.2d 379 (1994). The fact finder’s determination is
given “great deference” on appeal; therefore, the appellate court’s role
is to review that exercise of discretion. Id. Moreover, “[t]he facts
submitted as evidence must be reviewed by the appellate court in the
light most favorable to the judgment rendered.” Venissat v. St. Paul
Fire & Marine Ins. Co., 06-987, p. 17 (La.App. 3 Cir. 8/15/07), 968
So.2d 1063, 1074 (citing Theriot v. Allstate Ins. Co., 625 So.2d 1337
(La.1993)).

The application of this standard has been explained by the
supreme court as follows:

In Reck [v. Stevens, 373 So.2d 498 (La.1979)], this court
disapproved the appellate court’s simply reviewing the medical
evidence and then concluding that the award for those injuries
was excessive, without taking into consideration the particular
effect of the particular injuries on the particular plaintiff. This
court further disapproved of the use of a scale of prior awards
in cases with generically similar medical injuries to determine
whether the particular trier of fact abused its discretion in the
awards to the particular plaintiff under the facts and
circumstances peculiar to the particular case. 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. Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963);
Ballard v. National Indem. Co. of Omaha, Neb., 246 La. 963,
169 So.2d 64 (1964); Lomenick v. Schoeffler, 250 La. 959, 200
So.2d 127 (1967). Only after such a determination of an abuse
of discretion is a resort to prior awards appropriate and then for
the purpose of determining the highest or lowest point which is
reasonably within that discretion. Coco v. Winston Industries,
Inc., 341 So.2d 332 (La.1976); Bitoun v. Landry, 302 So.2d
278 (La.1974); Spillers v. Montgomery Ward & Co., 294 So.2d
803 (La.1974).

The standard for appellate review of general damage
awards is difficult to express and is necessarily non-specific,
and the requirement of an articulated basis for disturbing such
awards gives little guidance as to what articulation suffices to
justify modification of a generous or stingy award.
Nevertheless, the theme that emerges from Gaspard v.
LeMaire, 245 La. 239, 158 So.2d 149 (1963) through Coco v.
Winston Industries, Inc., 341 So.2d 332 (La.1976), and through
Reck to the present case is that the discretion vested in the trier
of fact is “great,” and even vast, so that an appellate court

10

should rarely disturb an award of general damages. Reasonable
persons frequently disagree about the measure of general
damages in a particular case. 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 reduce the award.

Youn, 623 So.2d at 1260-61.

I. Physical Pain and Suffering.

Mr. Copell notes, despite the jury’s finding that the incident in question caused

the cervical disc problems which led to his pain and necessitated a past surgery and

a future surgery, the jury only awarded a total of $16,000.00 in general damages, all

of which were for past and future physical pain and suffering. For the reasons which

follow, we find this constituted a clear abuse of discretion on the jury’s part.

The record established Mr. Copell was twenty-six (26) years old at the time

of the incident. He testified he was severely jarred forward when the tire on his truck

became dislodged causing the vehicle to abruptly stop. Mr. Copell returned to his

job at Halliburton after leaving the dealership. He stated that shortly after the

incident, his neck began hurting and he developed a severe headache. After

informing his supervisor of the pain he was experiencing, Mr. Copell testified he

was told to go home for the day and rest. Mr. Copell and his wife, Brandi, both

testified his symptoms significantly worsened during the night and the following

morning.

The following day, Mr. Copell went to an urgent care clinic, complaining of

tenderness in his neck and headaches. He was examined by the physician and x-rays

were taken. After being diagnosed with a soft tissue injury by the urgent care

physician, Mr. Copell received two injections for spasms and pain. He also received

a prescription for a muscle relaxer and pain reliever.

11

Due to his continued pain and discomfort, Mr. Copell sought further treatment

from Dr. Sai Chennamsetty, a general practitioner, at Internal Medicine Group of

Acadiana. He complained of neck tenderness, headaches and pain radiating into his

left arm. After approximately three months of treatment with little to no

improvement in Mr. Copell’s symptoms, Dr. Chennamsetty ordered a MRI to be

performed on January 20, 2016. Following a review of the results of the MRI, Mr.

Copell was referred to Dr. William Brennan, a neurosurgeon.

Mr. Copell began treating with Dr. Brennan on February 13, 2016. Dr.

Brennan explained to Mr. Copell that the MRI revealed a disc bulge with a narrowing

of the neural foramen at the C5-6 level. Dr. Brennan recommended six weeks of

physical therapy. During this period, Mr. Copell continued to complain of severe

headaches, neck pain and radiating pain into his left arm. He later testified that most

days he would lay for hours in his bed with the lights off to attempt to alleviate the

pain he was suffering from the headaches and neck problems. Mr. Copell also tried

using a traction kit at home, placing his neck into a harness to attempt to create

tension into his spine. The little relief he received was short-lived and he underwent

a second course of physical therapy. When that failed to alleviate his problems, Dr.

Brennan recommended Mr. Copell undergo an anterior cervical discectomy and

fusion surgery at the C5-6 level. Mr. Copell testified he agreed to the surgery

because he was tired of living in pain and felt it would give him a better quality of

life.

The surgery was performed on November 16, 2016 at Lafayette Surgical

Specialties. Dr. Brennan testified the surgery required a two-inch long incision be

cut on Mr. Copell’s neck. The front of the herniated disc was then physically cut

and material then removed from the inside. The nerve tunnel was bisected on each

side to make it free from any disc fragments. A cadaver bone implant was then

12

placed into the newly freed disc space. The disc was then secured with a titanium

plate secured with four screws.

Mr. Copell testified his neck pain and the pain radiating into his arm improved

following the surgery. He stated he still has pain in the neck that he will have to live

with, but it is easier to bear than prior to the surgery. He explained if he “overdoes

things” the pain becomes worse. Mr. Copell testified he is able to cut his grass on

his riding mower, but does suffer discomfort afterwards. He also testified as of the

date of trial he still has tenderness and pain in his neck.

Following the November 16, 2016, surgical procedure, Defendants requested

an independent medical examiner, Dr. Henry Eiserloh, examine Mr. Copell and

review all his medical records. Dr. Eiserloh testified he saw no neurological defects

in Mr. Copell’s neck and questioned the necessity of the surgical procedure. Dr.

Brennan countered that, in his opinion, the surgery was mandated because there was

disc material from a herniated disc that was extending into the foramen and hitting

a nerve, causing significant pain to Mr. Copell. While Dr. Eiserloh questioned the

necessity of the first surgery and the type of surgical procedure performed, he did

agree with Dr. Brennan that a second surgery would likely be required in the future.

After reviewing the record, we find that the $16,000.00 award for past and

future physical pain and suffering is far below that which a reasonable trier of fact

could assess in such a case. The jury verdict reflected an affirmative finding by the

jury that Mr. Copell was injured as result of the incident with his truck. We cannot

countenance the jury’s decision to award only $16,000.00 for past and future

physical pain and suffering when it concluded, as a result of Defendants’ negligence,

that Mr. Copell has dealt with consistent pain, has undergone a major surgical

procedure, and by all the medical testimony will need another major surgical

procedure. The medical evidence establishes Mr. Copell underwent more

13

conservative treatment for several months, including two courses of physical

therapy, before accepting Dr. Brennan’s recommendation that he undergo surgery.

The record also supports that Mr. Copell only achieved significant relief of his pain

and radiculopathy symptoms after he had undergone the cervical discectomy and

fusion surgery, which was over fourteen months after the incident occurred. Prior

to undergoing the surgery, Mr. Copell testified the constant neck pain, radicular pain

and headaches affected his overall quality of life. Mr. Copell’s wife confirmed that

he was consistently in pain and was unable to help out around the house like he used

to prior to the incident. She also stated he wanted the surgery because he was tired

of living in pain and wanted a better life for his family.

Once an appellate court determines that the trier of fact abused its discretion

in the award of general damages, it may examine prior awards for purposes of

determining the highest or lowest point of an award that could reasonably be granted.

Youn, 623 So.2d 1257. After reviewing prior awards in similar cases, we find that

$100,000.00 is the lowest reasonable award that the jury could have awarded for Mr.

Copell’s past and future physical pain and suffering. Bennet v. City of New Iberia,

08-1369 (La.App. 3 Cir. 4/1/09), 7 So.3d 822 (this court affirmed a judgment

awarding $100,000.00 in general damages for an injury that “was painful, required

surgery and an extended period of recovery at home,” alteration of normal levels of

activity and play, and ongoing pain); Ruffin v. Burton, 08-893 (La.App. 4 Cir.

5/27/09), 34 So.3d 301 (the appellate court affirmed a general damages award of

$125,000.00 to a plaintiff who was asymptomatic prior to an automobile accident

which caused a bulge in the plaintiff’s cervical spine with nerve root impingement,

as well as significant shoulder problems); Bouquet v. Wal-Mart Stores, Inc., 08-309

(La. 4/4/08), 979 So.2d 456 (the supreme court reinstated the jury’s award of

$115,000.00 in general damages for an injured plaintiff who had a lumbar disc

14

fusion, suffered movement restrictions and would require medicine for the

remainder of her life to control her pain).

II. Mental Anguish and Emotional Distress.

Mr. Copell also contends the jury abused its discretion in failing to award any

damages for past and future mental pain and suffering. “Mental anguish and grief

refers to the ‘pain, discomfort, inconvenience, anguish, and emotional trauma’ that

accompany the injury. McGee [v. A C And S, Inc., 05-1036 (La. 7/10/06), 933 So.2d

770,] 775.” Rachal v. Brouillette, 12-794, p. 5 (La.App. 3 Cir. 3/13/13), 111 So.3d

1137, 1142, writ denied, 13-690 (La. 5/3/13), 113 So.3d 217.

Mr. Copell testified he began treating with Dr. James Blackburn, a

psychiatrist, approximately three months before he had his surgery. Dr. Blackburn

testified Mr. Copell had anxiety and emotional distress, particularly as it related to

his inability to workout regularly as he had done since his teens. Dr. Blackburn

acknowledged that Mr. Copell had continued to work out, but it was on an extremely

modified basis. Dr. Blackburn also found Mr. Copell was dealing with anxiety over

the impending surgery and the potential effects it would have on him long-term. Dr.

Blackburn diagnosed Mr. Copell as having an adjustment disorder, which he noted

could range in severity from moderate to disabling. Dr. Blackburn found Mr. Copell

to be “concerned about his future and his ability to maintain employment, support

his wife and family, maintain the good job that he had.” Dr. Blackburn found it

“var[ied] in intensity to the extent that it significantly affected his mood at times.”

He testified that Mr. Copell felt “guilt” and “frustration,” feeling he should be able

“to do better and that would increase his stress level which increased the pressure on

his neck, increase his overall level of distress.” Dr. Blackburn did testify that Mr.

Copell “improved,” and “learned to psychologically deal with his pain better.” He

also noted the anxiety Mr. Copell dealt with concerning the surgery abated to a large

15

degree after the surgical procedure was complete. Dr. Blackburn continued to see

Mr. Copell every two months after the surgery to help him deal with his pain issues

and marital issues.

Although Mr. Copell did eventually respond well to his psychiatric treatment

with Dr. Blackburn, we find it was a clear abuse of discretion for the jury to not

award any amount for mental anguish. After reviewing prior awards in similar cases

we find that $25,000.00 is the lowest reasonable award that the jury could have

awarded for Mr. Copell’s past and future mental anguish. Lantier v. Caskey, 19-

687, 19-688 (La.App. 3 Cir. 11/12/20), 308 So.3d 758 (this court affirmed a

$50,000.00 award for past and future mental pain and suffering for significant

cervical problems requiring surgery; the plaintiff complained of depression and

anxiety over her injuries, tested positive for depression and was prescribed Xanax);

Ober v. Champagne, 14-170 (La.App. 5 Cir. 12/16/14), 166 So.3d 254 (the appellate

court affirmed the trial court’s JNOV awarding $25,000.00 for past mental anguish

for a plaintiff who was treated by a clinical psychologist and neuropsychiatrist for

depression after injuries suffered in an automobile accident that required surgery).

III. Disability and Loss of Function.

Although Mr. Copell assigns as error the jury’s failure to render an award for

disability and loss of function, he does not specifically discuss this category in his

brief. Therefore, we affirm the jury’s decision to award nothing for disability and

loss of function.

IV. Loss of Enjoyment of Life.

Mr. Copell contends the jury abused its discretion in not awarding any

damages for loss of enjoyment of life. Loss of enjoyment of life refers to the

detrimental alterations of the person’s life or lifestyle or the person’s inability to

participate in the activities or pleasures of life that were formerly enjoyed prior to

16

the injury. McGee, 933 So.2d at 775. Moreover, loss of enjoyment of life is

conceptually distinct from other components of general damages, including pain and

suffering. Id.

The testimony demonstrated that following the accident, Mr. Copell’s

activities were diminished to an appreciable degree. Before the accident, Mr. Copell

was extremely active and worked out daily. While he has been able to work out

some, it is nowhere near as regular and on a modified basis. Defendants at trial

introduced the records of the health clubs that Mr. Copell belonged to and found he

had worked out ninety-three (93) times in eighteen months. This averages out to

approximately five times per month, a far cry from Mr. Copell’s prior routine of

working out daily. Dr. Blackburn noted his routine of daily work outs was extremely

important to him, and the effects it had on his self-worth were detrimental.

Mr. Copell also stated it is much more difficult for him to be useful around

the house due to the pain he experiences when he extends himself physically. On

occasion, when things have broken around the house, Mr. Copell has had to call his

father for help. Both his wife and father testified Mr. Copell has been different with

his family since the incident and his interaction has lessened during the period

subsequent to the accident.

For the above reasons, we find it was a clear abuse of discretion for the jury

to not award any amount for loss of enjoyment of life. After reviewing prior awards

in similar cases, we find that $25,000.00 is the lowest reasonable award that the jury

could have awarded for Mr. Copell’s loss of enjoyment of life. Donaldson v. Hudson

Ins. Co., 12-1013 (La.App. 4 Cir. 4/10/13), 116 So.3d 46, (the plaintiff therein was

awarded $25,000.00 for loss of enjoyment of life for injuries to his neck and back

which limited his activities and he could no longer enjoy recreational activities, such

as billiards or basketball); Caskey v. Merrick Const. Co., Inc., 46,886 (La.App. 2

17

Cir. 3/14/12), 86 So.3d 186, (the plaintiff therein was awarded $25,000.00 in

damages for loss of enjoyment of life due to back injuries which affected his sleeping

and limited his activities such as hunting, doing yard work and helping around the

house).

B. Special Damages.

Lastly, Mr. Copell maintains the jury abused its discretion in failing to award

all future medical expenses established at trial. The jury awarded $95,000.00 in

future medical expenses. As has been set forth, both Dr. Brennan and Dr. Eiserloh

agreed Mr. Copell would require a second surgery on his neck in the future. The

surgical procedure which Dr. Brennan believed would be necessary was estimated

to have a one-time cost of $94,990.56. This clearly appears to be the basis for the

jury’s award of $95,0000.00 in future medical expenses. However, Mr. Copell

argues this amount fails to provide anything for the costs associated with the surgery,

including pre-operative and post-operative visits, costs of necessary prescription

medications, physical therapy, etc.

Special damages are those damages which may be determined with some

degree of certainty and include past and future medical expenses. The plaintiff bears

the burden of proving entitlement to special damages by a preponderance of the

evidence. Cormier v. Colston, 05-507 (La.App. 3 Cir. 12/30/05), 918 So.2d 541.

The award of future medical expenses must be supported by medical testimony

indicating both their need and probable cost. Hanks v. Seale, 04-1485, p. 16 (La.

6/17/05), 904 So.2d 662, 672. When reviewing a factfinder’s factual conclusions

regarding special damages, appellate courts employ the manifest error standard of

review. See Deligans v. Ace American Ins. Co., 11-1244 (La.App. 3 Cir. 3/7/12), 86

So.3d 109.

18

As set forth, both Dr. Brennan and Dr. Eiserloh agreed a second surgery was

necessary. Mr. Copell presented the testimony of Dr. Lacy Sapp, a certified life care

planner, who consulted with Mr. Copell’s treating physicians to determine what

future medical care he would likely need and associated costs. She testified that

among the many things Mr. Copell would need in the future were pre-surgery

appointments with a spine surgeon, post-operative visits after the surgery, physical

therapy, X-rays, MRI’s, pre-operative lab work and medication. Her figure for

future medicals were priced between $217,393.06 to $308,774, which included the

cost of the expected future surgery.

Defendants do not dispute the specific amounts of costs set forth by Dr. Sapp.

In fact, Elizabeth Bauer, who was hired by Defendants to review Dr. Sapp’s medical

care costs analysis, testified “I don’t have any problems with Dr. Sapp’s pricing.”

Defendants, instead, simply cling to the meritless argument that the incident in

question did not cause Mr. Copell a serious neck injury or the need for any surgery.

Accordingly, we find it clear the jury abused its discretion in failing to award the

future medical costs which were supported by the medical testimony as to necessity

and costs. We will amend the prior award of $95,000.00 for future medical expenses

and raise it to the lowest reasonable amount of $217,393.06.

DECREE

For the reasons assigned, we amend the jury’s award of past and future pain

and suffering from $16,000.00 to $100,000.00. We also amend the jury’s award of

future medical expenses from $95,000.00 to $217,393.06. We reverse the jury’s

denial of damages for past and future mental anguish and render an award of

$25,000.00 for that element of damages. We also reverse the jury’s denial of

damages for loss of enjoyment of life and render an award of $25,000.00 for that

element of damages. In all other respects, the judgment below is affirmed. Costs of

19

this appeal are assessed to Defendants, Arceneaux Ford and Amtrust North America,

Inc.

AMENDED IN PART AND, AS AMENDED, AFFIRMED; REVERSED
IN PART AND RENDERED.

20