Scott Wesley Eastman, Et Ux v. State Farm Mutual Automobile Insurance Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-712

SCOTT WESLEY EASTMAN, ET UX

VERSUS

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, ET AL

************
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT
PARISH OF CALCASIEU, DOCKET NO. 16-4474
HONORABLE ROBERT WYATT, DISTRICT JUDGE
************
LEDRICKA J. THIERRY
JUDGE
************

Court composed of D. Kent Savoie, Van H. Kyzar, and Ledricka J. Thierry, Judges.

AFFIRMED.

Barry A. Roach
Michael H. Schwartzberg
Larry A. Roach, Inc.
2917 Ryan Street
Lake Charles, LA 70601
(337) 433-8504
COUNSEL FOR PLAINTIFFS/APPELLEES:
Scott Wesley Eastman and Darnell Eastman

Allen J. Mitchell, II
Mitchell & Blanco, LLC
1607 Ryan Street
Lake Charles, LA 70601
(337) 436-8686
COUNSEL FOR DEFENDANTS/APPELLANTS:
State Farm Mutual Auto Insurance Company
and Jillian Peterson

THIERRY, Judge.

Defendant insurer and driver appeal the trial court’s judgment which granted

plaintiffs’ judgment notwithstanding the verdict (“JNOV”), altered the jury’s

findings on liability, and increased the awards for past and future medical expenses,

future general damages, and loss of future earning capacity. For the reasons that

follow, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

This matter arises out of a three-vehicle crash that occurred on November 19,

2015, in Calcasieu Parish on Interstate 10. The crash involved Roger Burns, the

driver of the first vehicle, Scott Eastman, the plaintiff and driver of the middle

vehicle, and Jillian Peterson, the defendant and driver of the third vehicle. At the

time of the crash, traffic was congested and slow-moving in a “stop and go” fashion.

Ms. Peterson, in an attempt to avoid the heavy traffic that was building up in the

right lane, took her eyes off the vehicles in front of her to try and change lanes. She

could not successfully change lanes, and when she returned her attention to the

vehicles in front of her in the right lane, she was about one car length behind Mr.

Eastman’s vehicle. Unable to stop in time, she rear-ended Mr. Eastman.

There is no dispute that Ms. Peterson rear-ended Mr. Eastman, which then

caused Mr. Eastman to rear-end Mr. Burns. However, it is disputed whether Mr.

Eastman separately rear-ended Mr. Burns prior to being rear-ended by Ms. Peterson.

Mr. Burns testified that he was rear-ended twice: first by Mr. Eastman alone, and

second after Ms. Peterson rear-ended Mr. Eastman, causing Mr. Eastman’s vehicle

to strike his car a second time. Mr. Eastman denies rear-ending Mr. Burns before

being struck by Ms. Peterson.

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After the crash, Mr. Eastman was taken by ambulance to a local hospital,

complaining of neck, head, and back pain. He treated with many different medical

providers following the crash, including Dr. Shaine Rider, a chiropractor; Dr. Clark

Gunderson, an orthopedic specialist; Dr. Howard Cotler, who recommended neck

surgery; Dr. Craig Morton, who performed several cervical injections on Mr.

Eastman; Dr. Brian Kelly, a neurosurgeon who also recommended surgery; Dr. Rex

Marco, a specialist in Houston; and Dr. William Crookshank, a pain management

specialist. Mr. Eastman also treated with his chiropractor, Dr. Rider, prior to the car

accident for neck pain related to a pre-existing condition called diffuse idiopathic

skeletal hyperostosis (“DISH”).

Mr. Eastman and his wife, Mrs. Darnell Eastman, filed suit for their damages

against Ms. Peterson and her insurer, State Farm Mutual Automobile Insurance

Company. Trial commenced on June 28, 2021. The jury found Ms. Peterson and Mr.

Eastman each fifty percent at fault for Mr. Eastman’s injuries. The jury awarded a

verdict for past and present medical expenses ($19,732.14), past and present loss of

enjoyment of life ($16,000.00), past and present pain and suffering ($50,000.00),

past and present mental anguish ($5,000.00), and loss of consortium to Mrs. Darnell

Eastman ($20,000.00). The jury awarded zero dollars for all future awards, including

future medical expenses, future mental anguish, future disability, future loss of

enjoyment of life, future pain and suffering, and future loss of earnings and earning

capacity.

Plaintiffs filed a JNOV on both liability and damages and alternatively, a

motion for new trial. The hearing on that matter was held on January 18, 2022. The

trial judge granted the JNOV and denied the motion for new trial with written

reasons dated April 28, 2022. The judgment was signed and filed on June 7, 2022.

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In its reasons, the trial court held that “the findings by the jury were clearly erroneous

and factually and legal unsupported in several of their determinations.” The court

found Ms. Peterson to be one hundred percent at fault and awarded Mr. Eastman

$138,419.06 for past medical expenses, $625,875.00 for future medical expenses,

$150,000.00 for future loss of enjoyment of life, future pain and suffering, and future

mental anguish, and $130,000.00 for future loss of earnings and earning capacity.

It is this granting of the JNOV and judgment dated June 7, 2022, that

defendants now appeal, assigning that the trial court committed errors by granting

the JNOV on the issues of: (1) liability; (2) past and future medical expenses; (3)

future loss of enjoyment of life, future pain and suffering, and future mental anguish;

and (4) loss of future earning capacity.

STANDARD OF REVIEW

Louisiana Code of Civil Procedure Article 1811 sets forth the procedural

mechanism of a JNOV, which permits a trial court to modify a jury’s findings “to

correct an erroneous jury verdict.” Pitts v. La. Med. Mut. Ins. Co., 16-1232, p. 7 (La.

3/15/17), 218 So.3d 58, 64; see also Brown v. Breaux Bridge Ventures, LLC, 17-440

(La.App. 3 Cir. 2/15/18), 239 So.3d 319, writ denied, 18-444 (La. 5/11/18), 242

So.3d 568. In evaluating a motion for JNOV, “the trial court considers whether the

facts and inferences point so strongly and overwhelmingly in favor of one party that

reasonable persons could not arrive at a contrary verdict.” Guillory v. Saucier, 11-

745, p. 11 (La.App. 3 Cir. 12/7/11), 79 So.3d 1188, 1196, writs denied, 12-75, 12-

81 (La. 3/9/12), 84 So.3d 554, 555; see also Joseph v. Broussard Rice Mill, Inc., 00-

628 (La. 10/30/00), 772 So.2d 94. A mere preponderance of the evidence for the

mover does not justify the granting of a JNOV. Anderson v. New Orleans P Serv.,

Inc., 583 So.2d 829 (La. 1991). The trial court may not evaluate the credibility of

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the witnesses, and “it must resolve all reasonable inferences or factual questions in

favor of the non-moving party.” Guillory, 79 So.3d at 1196-97.

If a trial court concludes that a JNOV is warranted, the trial court becomes

the “trier of fact” and conducts a de novo review. Anderson, 583 So.2d at 834. As

the Louisiana supreme court in Anderson explained:

The trial judge is in a better position to make a damage assessment than
is an appellate court. The trial judge hears the testimony, views the
evidence, and is able to evaluate the credibility of the witnesses. Once
the jury verdict is set aside under the strict JNOV standards, the trial
court is then the trier of fact. It should not be limited by the same
constraints placed upon an appellate court reviewing a damage award.
The trial judge should make an independent assessment of the damages
and award a proper amount of compensation under the facts of the
particular case.

Id.

The standard of review on appeal for a JNOV is a two-step inquiry. The first

step requires the appellate court to “determine whether the district judge erred in

granting the JNOV by using the above-mentioned criteria in the same way as the

district judge in deciding whether to grant the motion.” Trunk v. Med. Ctr. of La. at

New Orleans, 04-181, p. 5 (La. 10/19/04), 885 So.2d 534, 537. In other words, the

appellate court must determine whether “the facts and inferences point so strongly

and overwhelmingly in favor of one party that reasonable persons could not arrive

at a contrary verdict.” Guillory, 79 So.3d at 1196. “If the appellate court determines

that reasonable persons might reach a different conclusion, then the district judge

erred in granting the motion and the jury verdict should be reinstated.” Trunk, 885

So.2d at 537. If, however, the facts and inferences weigh so overwhelmingly in favor

of the moving party, such that reasonable men could not arrive at a contrary verdict,

“then the trial judge was correct in granting the motion.” Anderson, 583 So.2d at

832; see also Brown v. State ex rel. Dep’t Transp. & Dev., 15-23 (La.App. 3 Cir.

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5/27/15), 166 So.3d 1197, writ denied sub nom. Brown v. State Farm Mut. Auto Ins.

Co., 15-1474 (La. 10/23/15), 179 So.3d 601.

If the appellate court finds that the trial court correctly granted the JNOV, the

second step requires the appellate court to review the trial court’s subsequent

judgment using the manifest error standard of review. Davis v. Wal-Mart Stores,

Inc., 00-445 (La. 11/28/00), 774 So.2d 84. Under the manifest error of review, “the

issue before the court of appeal is not whether the trier of fact was right or wrong,

but whether the fact-finder’s conclusion was a reasonable one.” Snider v. La. Med.

Mut. Ins. Co., 14-1964, p. 5 (La. 5/5/15), 169 So.3d 319, 323. The appellate court

may not reweigh the evidence or disturb the factual findings of the fact-finder simply

because it would have ruled differently. Id.

ANALYSIS

Liability

In their first assignment of error, defendants allege that the trial court erred by

granting the JNOV on the issue of liability. At trial, the jury allocated fifty percent

fault to defendant, Ms. Peterson, and fifty percent fault to plaintiff, Mr. Eastman.

The trial court altered this allocation in the granting of the JNOV, holding that Mr.

Eastman was free from fault and Ms. Peterson was one hundred percent at fault for

the accident.

The two-part inquiry on appeal requires that we first consider whether the

facts and inferences weigh so overwhelmingly in favor of the moving party, such

that reasonable men could not arrive at a contrary verdict. Our careful review of the

evidence and applicable law supports the trial court’s granting of the JNOV on this

issue.

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Pursuant to La.R.S. 32:81(A), “[t]he driver of a motor vehicle shall not follow

another vehicle more closely than is reasonable and prudent, having due regard for

the speed of such vehicle and the traffic upon and the condition of the highway.”

When a rear end collision occurs, the following car is presumed to be negligent.

Jacobs v. Sampson, 16-506 (La.App. 3 Cir. 11/9/16), 206 So.3d 1191, writ denied,

16-2201 (La. 1/23/17), 215 So.3d 683. However, this presumption can be rebutted

when the following motorist demonstrates “that he or she had his car under control,

closely observed the preceding vehicle, and followed at a safe distance under the

circumstances[.]” Garcia v. Stalsby, 11-350, p. 5 (La.App. 3 Cir. 12/14/11), 78 So.3d

873, 877, writ denied, 12-422 (La. 4/9/12), 85 So.3d 703; see also Stelly v. Nat’l

Union Fire Ins. Co., 18-293 (La.App. 3 Cir. 2/6/19), 266 So.3d 395.

Alternatively, a following motorist may avoid the presumption by invoking

the sudden emergency doctrine “by proving that the driver of the lead car negligently

created a hazard which the following motorist could not reasonably avoid.” Garcia,

78 So.3d at 877 (emphasis in original). This doctrine was set forth by the supreme

court in Hickman v. Southern Pacific Transport Co., 262 La. 102, 113-14, 262 So.2d

385, 389 (1972), which held:

One who suddenly finds himself in a position of imminent peril,
without sufficient time to consider and weigh all the circumstances or
best means that may be adopted to avoid an impending danger, is not
guilty of negligence if he fails to adopt what subsequently and upon
reflection may appear to have been a better method, unless the
emergency in which he finds himself is brought about by his own
negligence.

Importantly, though, “[t]he sudden emergency doctrine cannot be used by one who

fails to use due care in avoiding the emergency and does not lower the standard of

care required of motorists before the emergency occurs.” Leblanc v. Bouzon, 14-

1041, p. 3 (La.App. 3 Cir. 3/4/15), 159 So.3d 1144, 1146-47.

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A recent case from the Louisiana fifth circuit, Mandible v. Jan Raley &

Allstate Insurance Co., 13-461 (La.App. 5 Cir. 12/12/13), 131 So.3d 247, is

particularly relevant to the facts of this case. That case involved a multi-vehicle

accident in which there was conflicting testimony regarding whether the plaintiff

first rear-ended the car in front of her prior to being rear-ended by defendant. The

appellate court noted that whether the plaintiff hit the car in front of her prior to

being rear-ended did not rebut defendant’s presumption of fault:

The collision was not simultaneous, and no evidence exists to support
a finding that plaintiff’s negligence, if any, in following [the first
vehicle] too closely, was the proximate cause of defendant’s collision,
and does not absolve defendant of liability from failing to perform her
duty to follow plaintiff at a safe distance.

Id. at 250. The court ultimately affirmed the trial court’s finding that defendant was

one hundred percent at fault for the collision.

Ms. Peterson, who was seventeen years old at the time of the crash, testified

that right before the crash, she looked to her left to try to switch from the right lane

to the left lane. She wanted to switch lanes because the traffic in the right lane was

slowing down. She admitted she was distracted in that moment, as the switching of

the lanes caused her to take her eyes off the vehicles in front of her. When she did

look back to her lane of travel, Mr. Eastman’s car was just one length in front of her

and came to a sudden stop, and she did not have time to stop and avoid hitting him.

In her words, “I just slammed and hoped for the best that I would stop in time.” The

weather was clear at the time of the accident, and it was still daylight outside. There

were no external factors that impeded her vision or ability to maintain control of her

vehicle.

While Ms. Peterson testified that Mr. Eastman’s vehicle coming to a “sudden

stop” created a hazard for her, the sudden emergency doctrine does not apply. As the

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law above states, “[t]he sudden emergency doctrine cannot be used by one who fails

to use due care in avoiding the emergency.” Leblanc, 159 So.3d at 1146-47. Ms.

Peterson admitted she took her eyes off the vehicle in front of her despite the heavy

traffic. Furthermore, she testified that the traffic in front of her was “bottling up,”

which means that Mr. Eastman’s vehicle coming to a stop was expected. There was

no evidence set forth at trial showing that Ms. Peterson kept a safe distance between

her vehicle and Mr. Eastman’s, nor that she closely observed his vehicle in front of

her. Regardless of whether Mr. Eastman created a hazard for Ms. Peterson, Ms.

Peterson failed to exercise due care, and therefore she failed to rebut the presumption

of negligence.

Although Ms. Peterson is presumed to be negligent, we must still consider

comparative fault. In its written reasons, the trial court appears to suggest that

comparative fault does not apply, stating: “The court finds Eastman free from fault

in this accident and Peterson 100% at fault since she failed to prove the necessary

facts to rebut applicable presumptions.” This is an incorrect interpretation of the law.

Notwithstanding the presumption of negligence in rear-end collisions, the ordinary

rules of comparative negligence apply, and thus a leading motorist may still be

assessed with comparative fault. Leblanc, 159 So.3d at 1147; see also Graffia v. La.

Farm Bureau Cas. Ins. Co., 08-1480 (La.App. 1 Cir. 2/13/09), 6 So.3d 270. In other

words, although Ms. Peterson failed to rebut the presumption of negligence, such

does not mean that she is automatically assessed with one hundred percent fault.

Defendants argue that the jury was reasonable in allocating equal fault to Mr.

Eastman and Ms. Peterson, given the conflicting testimony at trial regarding whether

Mr. Eastman first struck Mr. Burns prior to being rear-ended by Ms. Peterson. On

the other hand, Mr. Eastman contends that the conflicting testimony is irrelevant for

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purposes of assigning liability. He suggests that Ms. Peterson would have rear-ended

Mr. Eastman in either scenario. If Mr. Eastman had stopped sooner, there would

have been even less space for Ms. Peterson to stop, and therefore she would have

struck Mr. Eastman’s vehicle sooner and with more force. Relying on the Mandible

case, Mr. Eastman argues that any alleged negligence on his own part was not the

proximate cause of Ms. Peterson’s rear-ending him.

In light of the evidence before us, we find that reasonable minds could not

have found that Mr. Eastman was fifty percent at fault for the crash. Regardless of

whether Mr. Eastman independently struck Mr. Burns prior to being rear-ended by

Ms. Peterson, Ms. Peterson would have still struck Mr. Eastman, as she failed to

keep a safe distance between her vehicle and his and was looking away in the

moments before the crash. Although the trial court incorrectly misstates the law in

its written reasons, it correctly granted the JNOV on liability.

Having found that the JNOV on liability was warranted, the trial court became

the trier of fact. Its subsequent determination of liability is reviewed under the

manifest error standard. As discussed above, there was ample evidence in the record

to support Ms. Peterson’s fault. We cannot say that the trial court’s assigning of one

hundred percent fault to Ms. Peterson was clearly wrong. We affirm the trial judge’s

judgment on the issue of liability.

Past and Future Medical Expenses

In their second assignment, defendants claim that the trial court’s granting of

JNOV on damages for past and future medical is error. The basis of defendants’

argument is a single notation in a chiropractor’s record.

Prior to the crash at issue, Mr. Eastman treated with a chiropractor, Dr. Shaine

Rider, for neck and back pain, dating from May 29, 2014 to August 14, 2014. There

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is no dispute that Mr. Eastman has a pre-existing degenerative condition, known as

diffuse idiopathic skeletal hyperostosis or “DISH,” that causes neck pain. He

stopped treating for DISH on August 14, 2014, more than a year prior to the crash

at issue.

After the crash, Mr. Eastman again began treating with Dr. Rider. He

temporarily took a break from treatment with Dr. Rider after a visit on July 27, 2016,

in which Dr. Rider’s chiropractic records indicate he reached “MMI” (maximum

medical improvement). A few weeks later, on September 13, 2016, Mr. Eastman

returned to Dr. Rider for more treatment. Dr. Rider’s records from September 13,

2016, onward list the onset of Mr. Eastman’s condition as beginning in 2009.

Relying solely on Dr. Rider’s records, defendants argue that any medical treatment

after July 27, 2016, in which Mr. Eastman allegedly reached MMI, must be related

to the degenerative, pre-existing DISH condition, rather than Mr. Eastman’s car

crash injuries.

The jury was apparently persuaded by defense counsel’s argument and

awarded Mr. Eastman $19,732.14 in past medical expenses, which is the sum of Mr.

Eastman’s medical expenses from the date of the accident up until July 27, 2016. In

granting the JNOV, the trial judge increased Mr. Eastman’s past medical award to

$138,419.06, which is the sum of Mr. Eastman’s medical expenses from the date of

the accident up until the date of trial, which commenced on June 28, 2021.

The evidence clearly establishes that no reasonable person would limit Mr.

Eastman’s past medical expenses to $19,732.14. First, Mr. Eastman returned to Dr.

Rider just a month and a half later on September 13, 2016, clearly indicating he was

not at MMI. Furthermore, Dr. Rider did not testify at trial, and therefore, he never

opined that Mr. Eastman’s subsequent, extensive medical treatment was related

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purely to his DISH condition. No medical provider testified as such, either. Beyond

that, Dr. Rider is a chiropractor, not a medical doctor, and it was unreasonable for

the jury to have relied on a notation stating “MMI” in light of the overwhelming

evidence presented by medical doctors.

What the overwhelming evidence does show is that Mr. Eastman sought

extensive medical treatment for his crash injuries, continuing far beyond the July 27,

2016 date when the chiropractor records reference MMI. Mr. Eastman initially

sought conservative treatment with Dr. Rider, but when he did not get full relief, he

went to specialists in both Houston and Lake Charles. He treated with Dr. Cotler in

Houston in 2016 and 2017. He also treated with Dr. Morton, who performed several

cervical injections, trigger point and facet injections. Dr. Morton referred Mr.

Eastman to Dr. Kelly, a neurosurgeon, who found that Mr. Eastman had significant

symptoms that interfered with his daily life. Dr. Kelly referred Mr. Eastman to a

complex spinal surgeon specialist in Houston, Dr. Marco. Unfortunately, Mr.

Eastman was ultimately not a surgical candidate, leaving his only option as long-

term pain management. Dr. Kelly therefore referred Mr. Eastman to Dr. Crookshank

for pain management, who performed medial branch block procedures on Mr.

Eastman’s cervical spine. These were in preparation for radio frequency ablation

(“RFA”) procedures, which were performed on Mr. Eastman on February 20, 2020,

and again on June 8, 2021. The RFAs were successful and helped to reduce Mr.

Eastman’s pain.

Both Dr. Kelly and Dr. Crookshank testified that Mr. Eastman’s medical

treatment after the crash was caused by and related to the crash. They further found

that the crash likely aggravated Mr. Eastman’s pre-existing DISH condition. Dr.

Crookshank also specifically testified that the pain he was treating Mr. Eastman for

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“was at levels that do not have drastic radiologic findings consistent with DISH at

those levels.” He indicated that Mr. Eastman responded to treatment at those specific

levels. Thus, the evidence presented at trial showed that Mr. Eastman’s treatment

post-crash was related to his crash injuries rather than the DISH condition.

Tellingly, even defendants’ own medical expert, Dr. Esses, testified that Mr.

Eastman’s post-crash treatment was related, at least in part, to the crash:

Q. And at least when [Mr. Eastman] saw you in June of 2020, you
reported that he had pain and had seen doctors, and that you thought
that was appropriate and that he should have sought treatment; is that
correct?

A. Yes, sir.

Q. So at least for 4 ½ years, you agree that it was appropriate for him
to seek treatment for the pain in his neck?

A. I did.

Q. And you felt like the pain in his neck was related to the automobile
accident?

A. In part, yes, sir.

Thus, defendants’ argument that DISH is the sole cause of Mr. Eastman’s pain

after July 2016 is unconvincing. It is, simply, argument—not evidence. The

evidence—even defendants’ own expert—shows that Mr. Eastman’s medical

treatment at issue was causally related at least in part to the November 19, 2015

crash. Therefore, the trial court correctly granted the JNOV on this issue. We also

find that the trial court was not manifestly erroneous in awarding $138,419.06 in

past medical expenses to Mr. Eastman. As discussed at length above, the medical

evidence at trial overwhelmingly supported such an award.

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As to the future medical expenses, defendants re-urge their position that Mr.

Eastman reached MMI with Dr. Rider on July 27, 2016. Because no future medical

is necessary, they reason that no future medical treatment should be awarded.

Conversely, plaintiffs set forth robust evidence regarding the necessity for Mr.

Eastman’s future medical treatment, namely through RFAs. The total future medical

cost presented by plaintiffs at trial was $625,875.00, which is the amount awarded

in the granting of the JNOV. At trial, plaintiffs’ medical expert, Dr. Crookshank,

testified in detail regarding the purpose of RFAs, the mechanism of RFAs, the

efficacy of RFAs, and the recommendation specific to Mr. Eastman regarding RFAs.

He testified that a yearly RFA for the remainder of Mr. Eastman’s life is the most

reasonable course of treatment, barring any extenuating circumstances. Dr.

Crookshank testified that he would have no issue giving Mr. Eastman a yearly RFA

for the rest of his life.

We find that the unrefuted evidence supports the granting of the JNOV. As

discussed above, we are not persuaded by defendants’ argument regarding a single

notation in a chiropractor’s record. We also find it notable that defendants’ medical

expert, Dr. Esses, testified that he did not disagree with Dr. Crookshank. Because of

this, no reasonable persons could have found that Mr. Eastman was not entitled to

any future medical award.

We also find that the trial court was not manifestly erroneous in awarding

$625,875.00 to Mr. Eastman. Simply put, no evidence was put forth to dispute Mr.

Eastman’s future medical expenses. As discussed above, the trial judge hears the

testimony firsthand and is better equipped to evaluate damages than is the appellate

court. Anderson, 583 So.2d at 834. We find that the trial court’s awarding of future

medical is reasonable given the evidence.

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General Damages

Defendants’ third assignment of error is that the trial court erred by granting

the JNOV on the issue of future loss of enjoyment of life, future pain and suffering

and future mental anguish. In the granting of the JNOV, the trial judge noted “that

the awards for past and present loss of enjoyment of life, past and present pain and

suffering, and past and present mental anguish are inordinately miniscule when

compared to or aligned with the adjusted medical evidence.” Despite this, the trial

court did not alter the jury’s award of past and present damages of $71,000.00.

However, the court did increase the future loss of enjoyment of life, future pain and

suffering and future mental anguish awards from zero dollars awarded by the jury to

$150,000.00.

Defendants dispute this award, noting that surveillance videos show Mr.

Eastman engaging in “normal” activities and lifestyle. The jury saw photographs

showing Mr. Eastman catching ten-to-twelve-pound bass after the crash. They also

saw video surveillance of Mr. Eastman hitting fly and ground balls to the Barbe High

School Girls’ Softball team, of which he was an assistant coach. Because of this,

defendants posit that it was reasonable for a jury to award zero dollars. However, we

do not find that the video surveillance and photographs stand for the proposition set

forth by defendants, i.e., that Mr. Eastman is not in pain. Merely participating in

one’s daily activities does not mean that he is doing so pain-free.

The jury’s zero dollar award ignores the overwhelming evidence

demonstrating the depth of Mr. Eastman’s pain, suffering, and loss of enjoyment of

life. Not only did Mr. Eastman testify regarding how the crash has affected his daily

life, but his wife and son also offered impactful testimony describing the pain and

limitations Mr. Eastman has experienced since the accident.

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Furthermore, the objective evidence presented by Mr. Eastman’s treating

physicians prove that Mr. Eastman suffered physical pain and limitations caused by

the crash. Considering the amount of future medical treatment that is required, a zero

dollar award for future general damages is unreasonable.

After thoroughly reviewing the record, we find that the facts and inferences

point so strongly and overwhelmingly in favor of Mr. Eastman that reasonable

persons could not conclude that he is not entitled to any future general damages.

Therefore, we affirm the trial court’s JNOV on this issue.

As to the judge’s award of $150,000.00 to Mr. Eastman for future general

damages, we find that such is not manifestly erroneous given the evidence put forth

by Mr. Eastman concerning his pain and need for future medical treatment.

Future Earning Capacity

In defendants’ final assignment of error, they allege that the trial court

committed error by granting the JNOV on the issue of loss of future earning capacity.

The jury awarded Mr. Eastman nothing for this category of damages, while the trial

court granted the JNOV on this issue and awarded him $130,000.00.

Defendants posit that it was reasonable for the jury to conclude that Mr.

Eastman would continue to work given his testimony that he had not missed any

significant work in the five years since the crash and planned to work until he retired

at seventy. However, defendants’ position is speculation, not evidence. The evidence

at trial unequivocally established that Mr. Eastman would lose approximately 2.7

years of work due to the accident, equating to $268,796.00. This evidence was

supported by the unrefuted testimony of Dr. Bettinger, Mr. Eastman’s economist,

and Glen Hebert, Mr. Eastman’s vocational expert.

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For whatever reason, defendants failed to put forth their own economic expert.

While Defendants elicited testimony from a vocational expert, Mr. Robert Gisclair,

he did not perform a vocational rehabilitation assessment or evaluation of Mr.

Eastman. Instead, Mr. Gisclair’s testimony was limited to rebutting plaintiff’s

vocational expert:

Q. Mr. Gislcair, you didn’t perform any life-care planning in this case,
did you?

A. No sir, I was only asked to do a critique.

Q. So, the only testimony you’re going to give the jury today is a
critique of what Mr. Hebert did; is that correct?

A. That’s exactly right.

Therefore, we find that the evidence points so strongly and overwhelmingly

in favor of Mr. Eastman that reasonable persons could not have concluded that he is

not entitled to any loss of future earning capacity. The trial court correctly granted

the JNOV on this issue.

In the granting of the JNOV on this issue, the trial judge awarded $130,000.00

to Mr. Eastman, which is less than the amount set forth by plaintiffs at trial. In

choosing to award $130,000.00 instead of the $268,796.00 presented by plaintiffs,

the trial court explained that some of Mr. Eastman’s diminished work capacity may

be due to his pre-existing DISH condition. We find this choice was reasonable and

within the trial court’s wide discretion as “trier of fact,” and therefore not manifestly

erroneous.

CONCLUSION

For the reasons stated above, we affirm the trial court’s granting of the

judgment notwithstanding the verdict and subsequent altering of the jury’s verdict

both in liability and damages.

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AFFIRMED.

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