Latoya Fontenot v. Uv Insurance Risk Retention

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 20-361 consolidated with CA 20-362

LATOYA FONTENOT

VERSUS

UV INSURANCE RISK RETENTION

GROUP, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 102822
HONORABLE MICHELLE M. BREAUX, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and D. Kent Savoie,
Judges.

AFFIRMED AS AMENDED.

Stephen Gary McGoffin
Durio, McGoffin, Stagg & Ackermann, P.C.
P. O. Box 51308
Lafayette, LA 70505
(337) 233-0300
COUNSEL FOR DEFENDANTS/APPELLEES:
Neurological Solutions of Lafayette, LLC
William Brennan, M.D.

Bryan David Scofield
James T. Rivera
Jessica W. Marchand
Scofield & Rivera, LLC
100 E. Vermilion Street, Suite 301
Lafayette, LA 70501
(337) 235-5353
COUNSEL FOR DEFENDANTS/APPELLANTS:
UV Logistics, LLC
UV Insurance Risk Retention Group, Inc.
2-S Trucking, LLC
Larry Saltzman

Michael J. Remondet, Jr.
Michael R. Guidry
Jeansonne & Remondet
P.O Box 91530
Lafayette, LA 70509
(337) 237-4370
COUNSEL FOR PLAINTIFF/APPELLEE:
Latoya Fontenot

Barton Bernard
1031 Camellia Blvd.
Lafayette, LA 70508
(337) 989-2278
COUNSEL FOR PLAINTIFF/APPELLEE:
Latoya Fontenot

Jerome H. Moroux
Broussard & David, LLC
P. O. Box 3524
Lafayette, LA 70502-3524
(337) 233-2323
COUNSEL FOR PLAINTIFF/APPELLEE:
Michael Robertson

EZELL, Judge.

This appeal arises out of a vehicular accident between an eighteen-wheeler

and a car. Latoya Fontenot and Michael Robertson filed suit for injuries they

sustained when an eighteen-wheeler attempted to change lanes and hit the vehicle

they were traveling in. Defendants stipulated to liability on the day of the jury trial.

Trial proceeded on the issue of damages and causation. The jury awarded damages

to Plaintiffs. Defendants appealed the judgment. Both Plaintiffs answered the

appeal asking for an increase in some of the damage awards.

FACTS

During the morning of January 14, 2016, Larry Saltzman was traveling in an

eighteen-wheeler in the left eastbound lane of Highway 14 in Abbeville. At the same

time, Latoya Fontenot was on her way to work at Abbeville General Hospital, also

traveling east on Highway 14 but in the right lane. Ms. Fontenot was dating Mr.

Robertson who was a passenger in the vehicle. Her two daughters were also

passengers in the vehicle but are not involved in this lawsuit. Mr. Saltzman

attempted to move into the right-hand lane when he felt a slight bump and moved

back into the left-hand lane. He then pulled over into the middle turning lane and

stopped.

Ms. Fontenot testified that she felt a strong force hit her vehicle in the back

which caused her to lose control. Her head hit the steering wheel. She hit her brakes

to avoid hitting the ditch. She then pulled the car over and stopped on the side of

the road. Upon inspection, it was observed that the passenger side of the front

bumper of the eighteen-wheeler hit the rear bumper of Ms. Fontenot’s vehicle.

After the accident, Ms. Fontenot sought treatment for neck injuries, and Mr.

Robertson sought treatment for neck and back injuries. Both required surgical

intervention.

Latoya Fontenot’s Injuries

At the time of the accident, Ms. Fontenot was thirty-three years old.

Following the accident, Ms. Fontenot saw Dr. Rowdy Gautreau, a chiropractor, on

January 25, 2016. Dr. Gautreau testified that Ms. Fontenot described hitting her

head on the steering wheel during the accident. She complained of neck, left arm,

and mid back pain. Ms. Fontenot indicated that over-the-counter medications were

not working. After examination, Dr. Gautreau determined that Ms. Fontenot

suffered with a sprain of her ligaments in her neck and back. It was decided that Ms.

Fontenot needed twenty-one sessions of chiropractic care to reduce muscle spasms

and inflammation. The treatment plan included ice and heat treatment, spinal

manipulations, cervical traction, and rehabilitation to strengthen the muscles. She

was also given some Bio-Freeze, a topical pain-relief gel.

On the February 17, 2016 visit with Dr. Gautreau, Ms. Fontenot reported that

she was still having discomfort, especially at the end of the day. Dr. Gautreau

testified that this indicated that Ms. Fontenot was getting worse with activity. Since

Ms. Fontenot was not responding to treatment, Dr. Gautreau ordered an MRI. The

MRI indicated problems in the neck region, so Dr. Gautreau decided to refer her to

a specialist.

Ms. Fontenot saw a neurosurgeon, Dr. William Brennan, on September 8,

2016. His physical exam indicated that she had restricted neck motion in all

directions. Ms. Fontenot had good motor strength, good sensation, and no straight

leg raising signs. Her gait and station were normal, and she ambulated unassisted.

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Ms. Fontenot was still experiencing persistent left upper extremity pain and shooting

pain into the right trapezius. The MRI indicated problems with three levels of her

cervical spine, the most significant at C6-7. This correlated to her complaints. The

MRI of the lumbar spine was age appropriate. Dr. Brennan believed she would

benefit from a cervical traction kit to use at home.

After trying cervical traction at home, Ms. Fontenot continued experiencing

pain, so an EMG was ordered. The EMG was positive and indicated a cervical nerve

root was the cause of her pain. A new MRI was ordered on April 11, 2017, which

indicated no change in her condition.

Dr. Brennan performed an anterior cervical discectomy and fusion surgery on

three levels on May 17, 2017. Dr. Brennan’s records indicate that Ms. Fontenot had

improvement after surgery. He then released her to attend pain management and

referred her to Dr. Michael Haydel.

After examining Ms. Fontenot, Dr. Haydel noted that Ms. Fontenot was still

having issues after surgery. He treated her with pain medication and eventually

performed a cervical C6-7 epidural steroid injection. Ms. Fontenot testified that she

continues to see Dr. Michael Haydel every three months for pain management.

Michael Robertson’s Injuries

Mr. Robertson was thirty-one years old at the time of the accident. Mr.

Robertson testified that he started feeling lower back pain two to three days after the

accident. He sought treatment with Dr. Gautreau on January 22, 2016, after trying

over-the-counter medications. In addition to his back pain, Mr. Robertson reported

that prolonged standing caused him problems, and he had difficulty laying down at

night. An exam revealed muscle spasms in the cervical region and severe muscle

spasms in the lumbar region bilaterally.

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Dr. Gautreau prescribed ice and heat therapy, spinal manipulation, and

traction to stretch the spine and take pressure off the nerves. Rehabilitation was also

prescribed to strengthen the muscles.

On February 12, 2016, Mr. Robertson reported that he was continuing to have

frequent tension headaches. He reported that he returned to work but had difficulty

with prolonged sitting and standing. Mr. Robertson also reported frequent loose

bowels. Dr. Gautreau recommended an MRI because he was not responding to

treatment. Dr. Gautreau last saw Mr. Robertson in April 2016.

Mr. Robertson saw Dr. Jason Cormier, a neurosurgeon, on April 14, 2016.

After examination, Dr. Cormier indicated that Mr. Robertson may require a

discectomy and fusion at L4-5 and L5-S1. Upon review of the MRI, Dr. Cormier

opined that Mr. Robertson required surgery at L4-5 and L5-S1 and a cervical

discectomy with total disc replacement at C5-6 and C6-7 with possible fusion. On

his last visit with Dr. Cormier, Mr. Robertson informed Dr. Cormier that he saw Dr.

Brennan for a second opinion, as he was skeptical about having surgery.

Dr. Brennan first saw Mr. Robertson on July 13, 2016. Mr. Robertson

complained of neck pain, low back pain, and right leg pain. An EMG on July 16

revealed positive findings. Mr. Robertson next saw Dr. Brennan in September 2016

and reported that the pain intensified after helping family members move following

flooding of their home in August. Dr. Brennan stated Mr. Robertson aggravated his

injuries from the wreck because the pain was in the same area, and it was the same

type of pain, just more intense. Since Mr. Robertson was experiencing greater

discomfort in his low back and legs than his neck, Dr. Brennan decided to treat that

area first.

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Surgery proceeded on Mr. Robertson in October 2016. Dr. Brennan explained

that Mr. Robertson had pain on both sides of his back, but the pain was greater on

the right side. It was determined that it was best to perform surgery on the right side

first. Dr. Brennan performed a hemilaminectomy, discectomy, and foraminotomy

in which he drilled away the small portion of the lamina on the right side.

At the December 8, 2016 appointment with Dr. Brennan, Mr. Robertson

reported he was still having pain but seeing some improvement. Mr. Robertson

explained that when he stands, the pain is significantly worse. Dr. Brennan referred

Mr. Robertson to Dr. Sanjiv Jindia, a pain management doctor, who first saw Mr.

Robertson in March 2017. Dr. Jindia stated that back pain after surgery is common.

Mr. Robertson continued to experience pain in the lumbar region in the

months following surgery. A second surgery was required, and on April 4, 2018,

Dr. Brennan performed a lumbar laminectomy and fusion from L4 to S1. Dr.

Brennan last saw Mr. Robertson on October 4, 2018.

Ms. Fontenot and Mr. Robertson filed suit against Mr. Saltzman; 2-S Trucking,

LLC, which owned the eighteen-wheeler and was Mr. Saltzman’s employer; UV

Logistics, which leased the eighteen-wheeler from 2-S Trucking; and UV Insurance

Risk Retention Group, Inc., the insurer of UV Logistics.

A jury trial was held on October 21-25, 2019. Prior to trial, Defendants

stipulated to liability, so trial proceeded on the issues of causation and damages. At

the close of Defendants’ case and before closing arguments, the trial court granted

both Plaintiffs’ motions for directed verdict as to causation. The jury then awarded

damages totaling $955,000.00 to Mr. Robertson as follows:

Past medical expenses: $245,000.00
Future medical expenses: $410,000.00

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Past loss wages $100,000.00
Loss of enjoyment of life: $ 0.00
Future of lost earning capacity $100,000.00
Past, present, & future physical pain and suffering $ 50,000.00
Past, present, & future mental anguish and distress $ 50,000.00
Past, present, & future loss of enjoyment of life $ 0.00

The jury awarded damages totaling $532,398.41 to Ms. Fontenot as follows:

Past medical expenses: $132,398.41
Future medical expenses $250,000.00
Past loss wages: $ 0.00
Loss of enjoyment of life: $ 0.00
Past, present, & future physical pain and suffering $100,000.00
Past, present & future mental anguish and distress $ 50,000.00
Past, present, and future loss of enjoyment of life $ 0.00

Defendants filed the present appeal asserting several assignments of error.

They first argue that the trial court erred in granting Plaintiffs’ motion for directed

verdict on the issue of causation and also erred in failing to grant a new trial due to

the directed verdict error. Defendants further argue that the trial court erred in failing

to grant their directed verdict on the issue of Ms. Fontenot’s future medical expenses

and/or, in the alternative, reducing the jury’s award for such. Defendants’ last two

assignments of error concern Dr. William Brennan. They argue that the trial court

erred in failing to reduce or grant their motion for remittitur or judgment

notwithstanding the verdict concerning the medical costs billed by Dr. Brennan.

They also argue that the trial court erred in excluding evidence of Dr. Brennan’s bias

and motive.

Both Mr. Robertson and Ms. Fontenot answered the appeal. Mr. Robertson

claims that the jury award of $100,000.00 for general damages was abusively low.

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Ms. Fontenot argues that the jury erred in only awarding her $250,000.00 in future

medical expenses. She also claims that the jury erred in failing to award anything

for loss of enjoyment of life. Ms. Fontenot further argues that jury’s award of

$150,000.00 for physical pain and mental anguish and distress is abusively low.

DIRECTED VERDICT AS TO CAUSATION

Defendants argue that the trial court’s decision to grant a directed verdict in

favor of Plaintiffs on the issue of causation was not appropriate given the facts of

this case. Defendants claim that there were many credibility issues and

inconsistencies with both Mr. Robertson’s and Ms. Fontenot’s testimonies. They

argue that these credibility issues should be determined by the jury and not resolved

by directed verdict. Plaintiffs both argue that Defendants introduced no evidence to

rebut medical causation that their injuries were caused by the accident.

When reviewing a directed verdict, this court must consider the evidence

presented and determine whether reasonable persons could have could have reached

a contrary verdict. Maturin v. Bayou Teche Water Works, Inc., 20-257 (La.App. 3

Cir. 12/16/20), 310 So.3d 627, writ denied, 21-68 (La. 3/2/21), ___ So.3d ___. A

directed verdict should only be granted when the evidence presented

overwhelmingly leads to one conclusion. Id.

A trial judge has much discretion in determining
whether or not to grant a motion for directed verdict.
McNeely v. Ford Motor Company, Inc., 98-2139 (La.App.
1st Cir. 12/28/99), 763 So.2d 659, 664, writ denied, 2000-
0780 (La. 4/28/00), 760 So.2d 1182. A motion for directed
verdict is appropriately granted in a jury trial when, after
considering all evidentiary inferences in the light most
favorable to the movant’s opponent, it is clear that the facts
and inferences are so overwhelmingly in favor of the
moving party that reasonable men could not arrive at a
contrary verdict. Pratt v. Himel Marine, Inc., 2001-1832,
p. 17 (La.App. 1st Cir. 6/21/02), 823 So.2d 394, 406, writs

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denied, 2002-2025 (La. 11/1/02), 828 So.2d 572, 2002-
2128 (La. 11/1/02), 828 So.2d 571.

However, if there is substantial evidence opposed to
the motion, i.e., evidence of such quality and weight that
reasonable and fair-minded jurors in the exercise of
impartial judgment might reach different conclusions, the
motion should be denied, and the case submitted to the
jury. Pratt, 2001-1832 at pp. 17-18, 823 So.2d at 406.
Furthermore, the propriety of a directed verdict must be
evaluated in light of the substantive law underpinning the
plaintiff’s claims. Legal sufficiency of the evidence
challenges, such as those presented by motions for
directed verdicts, are reviewed on appeal de novo. Hall v.
Folger Coffee Company, 2003-1734, p. 10 (La. 4/14/04),
874 So.2d 90, 99.

Maturin, 310 So.3d at 634 (quoting Wright v. Bennett, 04-1944, pp. 15-16 (La.App.

1 Cir. 9/28/05), 924 So.2d 178, 187-88).

“[T]he appellate court must determine if the record supports the granting of a

directed verdict, based not on a credibility determination (a factual issue), but on a

sufficiency of the evidence determination (a question of law).” Davis v. Bd of Sup’rs

of Louisiana State Univ. and Agr. Mech. Coll., 03-2219, p. 8 (La.App. 4 Cir.

11/17/04), 887 So.2d 722, 727, writ denied, 04-3086 (La. 2/18/05), 896 So.2d 40.

The plaintiff bears the burden of proving a causal relationship between the

injury and the accident which caused the injury. Maranto v. Goodyear Tire &

Rubber Co., 94-2603, 94-2615 (La. 2/20/95), 650 So.2d 757. The burden of proof

is by a preponderance of the evidence. Id. The test for determining the causal

relationship is whether the plaintiff proved through medical testimony that it is more

probable than not that the subsequent injuries were caused by the accident. Id.

In order to obtain the benefit of the presumption of causation described in

Housley v. Cerise, 579 So.2d 973 (La.1991), the plaintiff must show that (1) he was

in good health prior to the accident at issue; (2) following the accident, symptoms of

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the alleged injury appeared and continuously manifested themselves afterward; and

(3) through evidence, whether medical, circumstantial or common knowledge, a

reasonable possibility of causation between the presumption of causation and the

burden of proof shifts to the defendant to prove some other particular incident could

have caused the injury of which the plaintiff complains. The presumption is

rebuttable upon a showing by the defendant that some other particular incident could

have caused the injury in question. Detraz v. Lee, 05-1263 (La. 1/17/07), 950 So.2d

557.

Defendants argue that they have established numerous inconsistencies in

Plaintiffs’ testimonies which cast doubt on their claims that they were injured

because of the accident. Defendants claim that there was evidence of Plaintiffs’

preexisting conditions as well as prior accidents.

Ms. Fontenot

Defendants argue that Ms. Fontenot denied injuring her neck in a prior

automobile accident, which required a trip to the emergency room. On cross-

examination, Ms. Fontenot agreed that she denied any previous accident but

admitted that she was involved in an accident on March 6, 2010, six years before

this accident. The pain from that accident resolved as she only had one follow-up

treatment after that accident. She also agreed that she backed into a pole at

O’Reilly’s Auto Parts store on January 14, 2016. There is no indication that Ms.

Fontenot sought treatment after that incident. Ms. Fontenot was adamant that she

had no neck pain prior to the accident at issue.

Ms. Fontenot’s complaints of neck pain from an accident six years before the

accident in the present case do not mean that she was not in good health for the

purposes of application of the Housley presumption. Layssard v. State, Dept. of Pub.

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Safety and Corr., 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 also take issue with Ms. Fontenot’s failure to mention her neck

pain when she went to see doctors after the present accident who treated her for

anxiety, constipation, or irritable bowel syndrome. Ms. Fontenot explained that she

did not mention her neck pain because she did not go to these health care providers

seeking treatment for her neck pain. She was already receiving health care treatment

from other medical providers for her neck pain.

Ms. Fontenot also admitted she went to cosmetology school after the accident

and did work some. However, she soon recognized that she could not sustain this

type of job as she was unable to complete a day’s work.

Dr. Brennan admitted that Ms. Fontenot had some issues that pre-dated the

accident. However, he testified that his treatment and surgery were all related to the

January 14, 2016 automobile accident.

Defendants also argue that Ms. Fontenot’s issues did not arise after the

accident, but at a later date. Defendants argue that their expert in interpreting and

performing EMG and NCV tests, Dr. James Domingue, testified that the EMG

results indicated that the abnormalities occurred within three to four months of the

March 29, 2017 EMG test. Dr. Brennan ordered the EMG test to determine what

levels in Ms. Fontenot’s neck would require surgery. Even though he did not review

Ms. Fontenot’s earlier MRI, Dr. Domingue agreed that someone with a herniated

disc can get worse over time. Dr. Domingue also testified that he could point to

nothing historically that could have caused the problems he noted other than the

accident in January 2016.

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There is no evidence that Ms. Fontenot suffered herniated discs in her neck

causing left arm pain prior to this accident. Ms. Fontenot’s medical issues were

diagnosed shortly after the accident, and there is sufficient medical evidence that

these injuries were caused by the accident.

Mr. Robertson

In his deposition, Mr. Robertson denied that he suffered any accident prior to

the present vehicular accident. At trial he admitted to an incident when he went to

the emergency room on November 4, 2010, for lower back pain. The pain started

when he hit a bump while riding a lawnmower two weeks before he decided to go

to the emergency room. Christy Lenahan, a nurse practitioner, treated Mr. Robertson

in the emergency room. Ms. Lenahan diagnosed him with acute exacerbation of

chronic back pain. There was no other evidence of Mr. Robertson receiving any

treatment for back pain until the present accident in 2016, which was six years after

the emergency room visit in 2010.

Dr. Brennan testified that he evaluated Mr. Robertson and found that

emergency room visit insignificant because Mr. Robertson had no problems for six

years. He opined that it was more than likely that the accident caused Mr.

Robertson’s injuries. Dr. Gautreau also testified that any issues six years prior to the

accident were irrelevant and the symptoms he treated Mr. Robertson for were caused

by the accident.

Mr. Robertson also passed a physical when he went to work for Diverse Safety

and Scaffolding (DSS) in 2014. He worked for them with no back or leg pain before

the accident. Defendants argue that Mr. Robertson’s credibility was put at issue

when he denied working after the accident but at trial was forced to admit he did

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work a few times following the accident. Defendants claim he was untruthful

because his employment involved heavy manual labor.

Mr. Robertson admitted at trial that he did work a few days after the accident.

His boss, Gerard Boutte, testified that Mr. Robertson worked six times after the

accident in February and March, with the last day on March 15. Dr. Gautreau

testified that Mr. Robertson told him he had worked light-duty offshore for DSS. Dr.

Gautreau’s office notes from March 16, 2016, indicated that Mr. Robertson returned

to work offshore, but had difficulty with prolonged sitting and standing. Obviously,

Mr. Robertson discontinued his employment with DSS due to the difficulties he was

experiencing from the accident.

Defendants assert many other inconsistencies in Mr. Robertson’s testimony

concerning whether he joined a health club before or after the accident,

representations he made on his social security disability application, and information

he gave to the economist and vocational rehabilitation experts. Mr. Robertson was

questioned about these issues at trial and explained them at trial. None of the

testimony or evidence surrounding these issues have anything to do with whether

the accident caused Mr. Robertson’s injuries.

Furthermore, as pointed out by this court in Thibodeaux v. Ace American Ins.

Co., 13-577 (La.App. 3 Cir. 11/27/13), 127 So.3d 132, the jury still has the

opportunity to evaluate credibility in making its decision when quantifying damages.

“The Housley presumption only addresses causation.” Id. at 141.

After a de novo review of the evidence, we find that the trial court correctly

applied the Housley presumption in determining the accident caused Plaintiffs’

injuries and in granting directed verdict on the issue of causation. While there may

have been some issues with statements made in Plaintiffs’ depositions, nothing

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related to the fact that both Plaintiffs were in good health before the accident, the

problems they experienced arose after the accident, and there was a reasonable

connection between the accident and subsequent injuries. No other explanation was

offered for either of Plaintiffs’ injuries by Defendants, other than trying to

demonstrate Plaintiffs as incredible. Medical evidence clearly indicated they were

injured as a result of the accident.

MOTION FOR NEW TRIAL

Defendants also argue that the trial court erred in failing to grant their motion

for new trial. They claim that the trial court’s ruling granting a directed verdict

prevented them from focusing on causation based on Plaintiffs’ credibility and

inconsistencies in closing arguments.

Pursuant to La.Code Civ.P. art. 1972:

A new trial shall be granted, upon contradictory motion of any
party, in the following cases:

(1) When the verdict or judgment appears clearly contrary to law
and the evidence.

(2) When the party has discovered, since the trial, evidence
important to the cause, which he could not, with due diligence, have
obtained before or during the trial.

(3) When the jury was bribed or has behaved improperly so that
impartial justice has not been done.

In reviewing a trial court’s decision on whether to grant or deny a motion for

new trial, an appellate court must determine whether the trial court abused its

discretion. Martin v. Heritage Manor S., 00-1023 (La. 4/3/01), 784 So.2d 627.

None of these grounds have been alleged by Defendants. Defendants’ basis

for new trial does not fall under one of the grounds enumerated in La.Code Civ.P.

art. 1972. Defendants are alleging the exact same grounds as they did in their

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previous assignment of error regarding the trial court’s decision to grant a directed

verdict as to causation. We have already found that the trial court’s grant of

Plaintiffs’ motion for directed verdict was appropriate and likewise find no abuse of

discretion in the trial court’s denial of Defendants’ motion for new trial.

MS. FONTENOT’S FUTURE MEDICAL EXPENSES

Defendants claim that Ms. Fontenot’s award of $250,000.00 for future

medical expenses should be dismissed or significantly reduced. They argue that she

failed to present evidence about the costs of such future medical expenses. Ms.

Fontenot claims that she presented the future costs of her medical expenses through

the testimony of Dr. Brennan; life care plan expert, Stony Landry; and economist,

John Theriot. In her answer to the appeal, Ms. Fontenot asks for an increase in the

award of future medical expenses to $349,918.00.

A Plaintiff must prove that “future medical expenses will more probably than

not be incurred.” Menard v. Lafayette Ins. Co., 09-1869, p. 12 (La. 3/16/10), 31

So.3d 996, 1006. “A plaintiff shows the probability of future medical expenses with

supporting medical testimony and estimations of their probably cost.” Id.

“Importantly, future medical expenses must be established with some degree of

certainty.” Id. A court should not reject an award of future medical expenses when

an exact value of such expenses is not offered if the record does establish that future

medical expenses are necessary and inevitable. Id. The plaintiff can establish

entitlement to a minimum amount of future medical expenses that reasonable

persons could agree would be required through evidence of past medical expenses

and other additional evidence. Id.

A plaintiff must establish by a preponderance of the evidence that future

medical expenses will be medically necessary. Id. An award of future medical

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expenses is highly speculative and cannot be calculated with mathematical certainty.

Id. Future medical expenses awards generally turn on questions of credibility and

inferences of experts and witnesses. Id. A jury’s assessment of future medical

expenses is subject great deference on review and an appellate court should rarely

disturb an award on review. Id.

An appellate court, in reviewing a jury’s factual conclusions with
regard to special damages, must satisfy a two-step process based on the
record as a whole: there must be no reasonable factual basis for the
trial court’s conclusion, and the finding must be clearly wrong. This
test requires a reviewing court to do more than simply review the record
for some evidence, which supports or controverts the trial court’s
findings. The court must review the entire record to determine whether
the trial court’s finding was clearly wrong or manifestly erroneous. The
issue to be resolved on review is not whether the jury was right or wrong,
but whether the jury’s fact finding conclusion was a reasonable one.

Id. at 1007 (citations omitted).

A jury’s choice between two permissible views of the evidence cannot be

manifestly erroneous or clearly wrong. Id.

As to Ms. Fontenot’s future medical care, Dr. Brennan testified that he would

refer to her pain management doctor as to any medications or injection therapy that

she might need in the future. As to her future neurological medical care, Dr. Brennan

opined that Ms. Fontenot would, on the average, require yearly visits, x-rays, and

MRI’s, in addition to physical therapy and psychiatric treatment. He also predicted

she would need future surgery due to stress put on the adjacent levels of her spine

from the surgery he already performed. However, on cross-examination it was

admitted that while 30% of the people with previous surgeries might develop

complications in the future, very few required future surgeries. Dr. Brennan did

admit that Ms. Fontenot never received physical therapy, nor did he refer her for

psychiatric treatment while he had been treating her.

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Dr. Brennan testified that he met with Stony Landry, certified life care planner,

about Ms. Fontenot’s future care. Correspondence in Dr. Brennan’s medical records

from Mr. Landry to Dr. Brennan and signed by Dr. Brennan confirmed Dr.

Brennan’s prognosis and testimony concerning Ms. Fontenot’s future care and was

summarized as follows:

One neurological examination annually for life
One series of cervical x-rays annually for life
One MRI scan of the cervical spine annually for life
Eighteen sessions of physical therapy annually for life
Pain management and evaluation and treatment
Psychiatric or psychological evaluation (due to chronic pain)
In 17-25 years, surgery at C3-C4 level. The surgery will require
four office visits, two series of cervical x-rays, and post-op medication.

John Theriot, Plaintiffs’ expert in economics, testified that he used Mr.

Landry’s report to evaluate the future value of Ms. Fontenot’s future medical

expenses. He determined that Ms. Fontenot would need $349,918.00 total for all the

recommended care by Dr. Brennan.

This was broken down into $239,719.00 for annual care for neurological

examinations. This figure included roughly $7,600.00 for x-rays, $46,000.00 for

MRIs, and $152,000.00 for physical therapy.

Mr. Theriot also calculated $1,575.00 as future medical expenses for mental

health treatment. Future medical expenses for surgery were calculated at

$108,629.00.

Based on our review of the evidence, we cannot say that the jury award for

future medical expenses was manifestly erroneous. The jury could have reasonably

concluded that Ms. Fontenot will require future care, including future surgery.

However, there were items of future medical expenses that the jury could have

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concluded she would not need, like physical therapy and psychiatric treatment, since

she did not initially need these treatments after the accident.

DR. BRENNAN’S MEDICAL COSTS

Defendants argue that the trial court erred in failing to reduce the medical

costs billed by Dr. Brennan and/or in not granting their motion for remittitur or

judgment notwithstanding the verdict concerning those bills. Defendants claim that

Dr. Brennan’s agreement with a medical funding company to sell a patient’s medical

debt to it in return for 50% of the value of his invoice creates a 50% finance charge,

amounting to prohibited interest on interest. Plaintiffs argue that Dr. Brennan’s

business arrangements with third parties have no bearing on their obligation to pay

the full amount for services charged by Dr. Brennan.

“A trial court can grant a JNOV only when a jury’s verdict is one
which reasonable people could not have rendered; if reasonable persons
could have arrived at the same verdict given the evidence presented to
the jury, then a JNOV is improper. The standard to be applied by the
appellate courts in reviewing the grant or the denial of a JNOV is
whether the trial court’s findings in rendering the JNOV were
manifestly erroneous.” Bertrand v. Air Logistics, Inc., 01-1655, p. 13
(La.App. 3 Cir. 6/19/02), 820 So.2d 1228, 1237.

Mouhot v. Twelfth Street Baptist Church, 06-1283, p. 3 (La.App. 3 Cir. 2/7/07), 949

So.2d 668, 670.

What Defendants are really arguing is that Dr. Brennan’s billing practices

amount to a benefit to Plaintiffs, which is a prohibited collateral source.

Under the collateral source rule, 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 this doctrine, any
payments received by the plaintiff from an independent source are not
deducted from the award the injured party would otherwise receive
from the wrongdoer. In short, the tortfeasor is not allowed to benefit
from the victim’s foresight in purchasing insurance and other benefits.

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Hoffman v. 21st Century North America Ins. Co., 14-2279, p. 3 (La. 10/2/15), 209

So.3d 702, 704 (citations omitted).

The supreme court in Hoffman, 209 So.3d at 706, refused “to extend the

collateral source rule to attorney-negotiated medical discounts obtained through the

litigation process.” The supreme court explained that “allowing the plaintiff to

recover an amount for which he has not paid, and for which he has no obligation to

pay, is at cross purposes with the basic principles of tort recovery in our Civil Code.”

Id. The supreme court recognized that a tortfeasor is responsible only for the

damages he or she caused pursuant to La.Civ.Code art. 2315, and the plaintiff

obtained no reduction in his or her patrimony to obtain the write-off.

However, this is not a case in which the attorney negotiated the discounted

rate. It is simply a procedure that Dr. Brennan testified he utilizes to reduce the risk

that he will not be paid. He further stated that he still has the right to pursue

collection once the case settles. There was no evidence offered in this case that

either Plaintiff will not be responsible for all medical charges owed to Dr. Brennan.

We find that based on the evidence presented to the jurors, reasonable jurors could

have decided that Plaintiffs were entitled to awards for all medical costs billed by

Dr. Brennan.

EVIDENCE OF DR. BRENNAN’S BIAS AND MOTIVE

Defendants’ final argument on appeal is that the trial court erred in excluding

evidence of the amount of money Dr. Brennan received from litigation cases. They

claim that this evidence would show Dr. Brennan’s bias toward his litigant patients.

Except as otherwise provided by law, all relevant evidence is admissible.

La.Code Evid. art. 402. Relevant evidence is that “having any tendency to make the

existence of any fact that is of consequence to the determination of the action more

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or less probable than it would be without the evidence.” La.Code Evid. art. 401.

Whether evidence is relevant is within the broad discretion of the trial court, and its

ruling will not be disturbed on appeal in the absence of a clear abuse of that

discretion. Bennett v. Porter, 10-1088 (La.App. 3 Cir. 3/9/11), 58 So.3d 663.

In support of their position, Defendants cite Rowe v. State Farm Mut. Auto.

Ins. Co., 95-669 (La.App. 3 Cir. 3/6/96), 670 So.2d 718, writ denied, 96-824 (La.

5/17/96), 673 So.2d 611. In Rowe, the plaintiffs sought to introduce evidence of the

defense expert’s bias as an advocate for the insurance industry. This court reversed

the trial court’s decision to disallow evidence of the expert witness doctor’s bias.

In Navarro v. Aries Marine Corp., 97-1630 (La.App. 3 Cir. 4/29/98), 713

So.2d 613, writ denied, 98-1446 (La. 9/4/98), 723 So.2d 958, this court explained

that Rowe does not mean that every expert medical witness in every case will be

subjected to discovery of unrelated medical records for purposes of cross

examination. We further explained that the “track record” of the physician must be

examined.

The trial judge does not abuse his discretion in refusing such discovery
where: (1) the patient was not referred to the physician by his attorney;
(2) the physician is the patient’s treating physician and not an expert
retained by the opposing party; (3) the physician, and not the plaintiff,
moved to quash the subpoena; (4) the trier of fact is an experienced
judge and not a jury; and (5) the physician’s “track record” (reported
decisions) does not support overwhelming bias (i.e., while in a majority
of the cases the physician testified on behalf of the claimants, he did
not always testify in a manner that was beneficial to the claimant).

19 La. Civ. L. Treatise, Evidence and Proof § 11.4 (2008), n. 11.

Dr. Brennan was Plaintiffs’ treating physician and not a hired expert. His

“track record” indicates that he works with both plaintiff and defense firms. We find

no showing of bias by Dr. Brennan, and therefore, the trial court did not abuse its

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discretion in refusing to admit evidence of the amount of money Dr. Brennan

receives for litigation work.

GENERAL DAMAGES

Both Ms. Fontenot and Mr. Robertson appeal the jury’s award of general

damages. Ms. Fontenot argues the jury’s award for past, present, and future physical

pain and suffering of $100,000.00 and $50,000.00 for past, present, and future

mental anguish and distress is abusively low. She further claims the jury erred in

failing to make any award for loss of enjoyment of life. Mr. Robertson claims that

the overall general damages award of $100,000.00 to him was abusively low. Mr.

Robertson was awarded $50,000.00 for past, present, and future physical pain and

suffering and $50,000.00 for past, present, and future mental anguish and distress.

He also received no award for loss of enjoyment of life.

General damages are those that are fundamentally speculative in nature and

cannot be fixed with mathematical certainty. Miller v. LAMMICO, 07-1352 (La.

1/16/08), 973 So.2d 693.

[T]he 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. Each case is different, and
the adequacy or inadequacy of the award should be determined by the
facts or circumstances particular to the case under consideration.

. . . . 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.

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. . . . [T]he discretion vested in the trier of fact is “great,”
and even vast, so that an appellate court 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

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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 v. Maritime Overseas Corp., 623 So.2d 1257, 1260-61 (La.1993), cert. denied,

510 U.S. 1114, 114 S.Ct. 1059 (1994).

Only after it is determined that there has been an abuse of discretion is a resort

to prior awards appropriate, and then only to determine the highest or lowest point

of an award with that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332

(La.1976).

Loss of Enjoyment of Life

The jury was presented with evidence from many social media posts that both

Ms. Fontenot and Mr. Robertson continued enjoying a social life after the accident.

Pictures showed them going out to eat a month after the accident, going to visit

family in Texas, going to a concert, going to the beach, going to several Mardi Gras

events over the years, shopping at the mall, going on field trips, going to a birthday

party in the park, going to an LSU game, and generally going out to eat. Both Ms.

Fontenot and Mr. Robertson agreed that they participated in these activities.

Based on this evidence, we do not find the jury abused its discretion in failing

to make an award for loss of enjoyment of life to either Ms. Fontenot or Mr.

Robertson. The evidence indicates that both Mr. Robertson and Ms. Fontenot

continued to enjoy many activities after the accident.

Physical Pain and Suffering and Mental Anguish and Distress

“Pain and suffering, both physical and mental, refers to the pain, discomfort,

inconvenience, anguish, and emotional trauma that accompanies an injury.” McGee

v. A C And S, Inc., 05-1036, p. 5 (La. 7/10/06), 933 So.2d 770, 775.

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Severity and duration must be considered when determining what amount

should be awarded for pain and suffering. Young v. Marsh, 49,496 (La.App. 2 Cir.

11/19/14), 153 So.3d 1245.

More specifically, the nature, relative severity, and extent of bodily
injuries are qualitative factors that must first be considered by the trier
of fact in awarding general damages. The duration of a plaintiff’s injury
symptoms and the duration of treatment are quantitative factors that
must also be taken into account.

Id. at 1252.

Ms. Fontenot

Following the accident, Ms. Fontenot had problems sleeping at night. She

could not get into a comfortable position that allowed her to sleep. Long days at

work caused her neck to tighten up even more. She had pain down both arms, which

continued down her left arm through trial.

After suffering with neck problems for nearly a year-and-a-half after the

accident, Ms. Fontenot underwent a cervical discectomy and fusion surgery on three

levels. Following surgery, Ms. Fontenot continues to see Dr. Haydel every three

months for pain management. Ms. Fontenot explained that she is now more cautious

following surgery because she does not want her condition to worsen.

As previously explained, the jury obviously determined that Ms. Fontenot will

require future medical care, including additional surgery. Considering the duration

of Ms. Fontenot’s injury prior to surgery, her continued pain and anxiety, and the

fact that she is facing additional surgery, we find that the jury abused its discretion

in its awards of pain and suffering and mental anguish.

In Huntley v. 21st Century Premier Insurance Co., 16-514 (La.App. 3 Cir.

11/2/16), 204 So.3d 1085, writ denied, 17-148 (La. 3/13/17), 216 So.3d 803, this

court affirmed a general damages award of $150,000.00 for past and future pain and

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suffering and $100,000.00 for past and future mental and emotional anguish after

the plaintiff suffered cervical and lumbar injuries in a low impact automobile

accident. The plaintiff in Huntley also had cervical spine surgery and evidence at

trial indicated she was facing future lumbar surgery.

We find it reasonable to increase the award of past, present, and future

physical pain and suffering to $150,000.00. We also increase the award of past,

present, and future mental anguish and distress to $100,000.00. We find that these

are the lowest amounts that a fact finder could have reasonably awarded.

Mr. Robertson

Mr. Robertson began experiencing pain shortly after the accident. He

attempted working but was unable to continue because of pain issues. Mr. Robertson

testified that the back pain following the accident was intense and that he

experienced headaches. He also began experiencing issues with bowel movements.

Mr. Brennan required two surgeries on his back to relieve the issues. He

continued to suffer with pain following the second surgery, so he was referred to Dr.

Jindia for pain management. Dr. Jindia noted that pain following back surgery is

common. He also observed that Mr. Brennan suffered with depression and erectile

dysfunction. Dr. Jindia explained that back pain and narcotic pain medications can

reduce testosterone levels which contribute to erectile dysfunction. Dr. Jindia

testified that Mr. Robertson will have pain for the rest of his life, which will require

constant pain medication.

In addition to his back issues, Dr. Brennan also treated Mr. Robertson for

cervical issues. Dr. Brennan testified that Mr. Robertson will require surgery on his

neck in the future but tried to take care of the back first as the most pressing issue.

Dr. Brennan explained that Mr. Robertson will require an additional two surgeries

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on his back to treat adjacent level disease. He explained that the segments next to

the fused levels now must do more work and will become a surgical problem

eventually.

The jury awarded Mr. Robertson $410,000.00 for future medical care, so it

obviously determined that he would require future pain management and surgery.

We find that the jury abused its discretion in the awards for pain and suffering and

mental anguish.

In Collatt v. Boudreaux, 19-103, p. 11 (La.App. 3 Cir. 11/25/19)(unpublished

opinion), this court found a total award of general damages in the amount of

$180,000.00 abusively low when the plaintiff “endured twenty months of cervical

and lumbar pain prior to a two-level anterior cervical discectomy and fusion surgery.”

The plaintiff had continuous pain, requiring pain medication, in addition to suffering

with TMJ issues. Evidence also indicated that the plaintiff would require two

additional surgeries. This court found the lowest amount that a fact finder could

have reasonably awarded was $400,000.00.

Not unlike the plaintiff in Collatt, Mr. Robertson faces additional surgery and

suffers with daily pain in both his neck and back, requiring pain medications and

treatment. He has suffered with erectile dysfunction and bowel issues. All of this

has led to depression.

We find it reasonable to increase the award of past, present, and future

physical pain and suffering to $250,000.00. We also increase the award of past,

present, and future mental anguish and distress to $150,000.00. We find that these

are the lowest amounts that a fact finder could have reasonably awarded.

For the reasons set forth in this opinion, we amend the judgment to increase

the award of past, present, and future physical pain and suffering to Ms. Fontenot to

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$150,000.00. We also increase the award of past, present, and future mental anguish

and distress to Ms. Fontenot to $100,000.00. We also amend the judgment to

increase the award of past, present, and future physical pain and suffering to Mr.

Robertson to $250,000.00. We also increase the award of past, present, and future

mental anguish and distress to Mr. Robertson to $150,000.00. In all other respects,

the judgment of the trial court is affirmed. Costs of this appeal are assessed to

Defendants.

AFFIRMED AS AMENDED.

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