NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT CA STATE FARM MUTUAL AUTO INSURANCE COMPANY **********

Transcription

1 NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT CA JULIE ELISE SHELTON-DALY VERSUS STATE FARM MUTUAL AUTO INSURANCE COMPANY ********** APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO HONORABLE J. BYRON HEBERT, DISTRICT JUDGE ********** BILLY HOWARD EZELL JUDGE ********** Court composed of Michael G. Sullivan, Billy Howard Ezell, and J. David Painter, Judges. AFFIRMED AS AMENDED. Thomas Robert Shelton Shelton Law Firm P. O. Drawer Lafayette, LA (337) Counsel for Plaintiff/Appellant: Julie Elise Shelton-Daly

2 Gretchen Heider Mayard Katherine P. Martin Attorneys at Law P. O. Box Lafayette, LA (337) Counsel for Defendant/Appellee: State Farm Mutual Auto Insurance Company

3 EZELL, JUDGE. Julie Elise Shelton-Daly appeals a jury s award of general damages and future medical expenses for injuries she sustained in an automobile accident. She also appeals the amount of damages awarded to her minor daughter, Emily, for loss of consortium. State Farm Mutual Auto Insurance Company, Ms. Daly s uninsured/underinsured motorist insurance carrier, asserts that the amount of damages awarded were proper. FACTS The facts leading up to the present accident are not in dispute. On September 24, 2002, Ms. Daly was leaving Baton Rouge to return home to Lafayette. Ms. Daly was stopped at a light, waiting to make a left turn from Essen Lane onto the interstate. While stopped, she was rear-ended by a Ford Crown Victoria. At the time of the accident, there was the threat of a serial killer, and Ms. Daly was afraid the other driver was intentionally hitting her vehicle. She left the scene without contacting police but was able to obtain the license plate number of the other vehicle. Upon returning to Lafayette, Ms. Daly reported the incident and obtained the identity of the other driver. The other driver of the vehicle was Willie Moore, who was insured by Illinois National Insurance Company. The policy limits of $10, were paid in full to Ms. Daly. The next day, Ms. Daly went to the emergency room at Lafayette Medical Center. There was a large bruise on her left hip. She also reported pain in her neck and right shoulder, in addition to pain in her back radiating into her hips. She was prescribed pain killers and muscle relaxants. Ms. Daly testified that she was also experiencing migraine headaches. 1

4 Six weeks prior to the accident, Ms. Daly s husband died after a long battle with pulmonary fibrosis. A memorial service had been planned for him in Chicago with his family around September 30. Ms. Daly explained that she was in pain the entire trip. Upon her return, Ms. Daly went to see her family physician, Dr. Stanley Hoover. Dr. Hoover saw Ms. Daly on October 11, He noted a great amount of pain in the upper back between the neck and shoulder. Ms. Daly also reported lower back pain in addition to numbness in the right forearm and weakness in her right hand and arm. His examination revealed a large amount of muscle spasm along the muscles of the spine in the upper and lower back area. The huge bruise on her thigh was still visible. Dr. Hoover testified that he could tell Ms. Daly was hurting when she walked in. Since Ms. Daly had not improved one month after the accident, Dr. Hoover suggested trigger injections of local anesthetic in the trigger spots in her neck and back. He explained that the purpose of the injections was to break the muscle spasm. Dr. Hoover also prescribed physical therapy hoping it would improve her function and let her tolerate the pain long enough to let the body heal. Dr. Hoover ordered an MRI which was performed on December 11, The MRI indicated discs bulging at L4-5 and L5-S1. The MRI also showed a herniated disc at C5-6. Prior to this accident, Ms. Daly was involved in an automobile accident in As a result of that accident, she herniated a disc at C5-6. However, her symptoms from that accident had resolved by The disc problem at L4-5 and L5-S1 was a new injury. Due to little improvement from conservative treatment, Dr. Hoover referred Ms. Daly to Dr. Thomas Bertuccini, a neurosurgeon. Dr. Bertuccini initially saw Ms. 2

5 Daly on February 10, When Dr. Bertuccini saw Ms. Daly, her reported symptoms had not changed. She had neck pain and radiating pain from her right shoulder into her arm and hand. She also had numbness. Ms. Daly had back pain that was radiating into her right buttock into the leg, down the side of the thigh and calf and into her foot. She also had numbness there as well. Dr. Bertuccini explained that the symptoms indicated a nerve was irritated, and the common cause was a disc problem. Dr. Bertuccini testified that Ms. Daly did not have a loss of strength, so he recommended conservative treatment to avoid an operation and help her pain symptoms. He referred Ms. Daly to Dr. Steven Staires, a pain management specialist. Dr. Staires first saw Ms. Daly in March Dr. Staires observed that the MRIs indicated disc herniations in the neck and back. He explained that he injects cortisone around the nerves to help the nerves heal. The injections are supposed to improve the symptoms while the body tries to heal the disc herniations. Dr. Staires noted that Ms. Daly had some relief for several weeks, but the pain returned. He continued to administer the injections on a scheduled basis. He explained that the pain condition is possibly permanent, but the injections are giving her partial, permanent relief. While Ms. Daly is still a patient, Dr. Staires opined that surgery is the only thing that could change the course of events. Dr. Bertuccini testified that the decision of whether to get aggressive with surgical treatment depends on the patient and how much they are able to tolerate. He explained that Ms. Daly s condition is now chronic because the fact that she has had pain this long suggests she will continue to have it for the future, possibly permanently. Dr. Bertuccini last saw Ms. Daly on May 3, 2006, with the same pain complaints. 3

6 Dr. Hoover also last examined Ms. Daly before trial on May 3 with the same complaints. On May 4, he administered some trigger point injections, including occipital nerve injections. These injections were to help alleviate headaches, scalp pain, and pain going into the ear area. Dr. Bertuccini also noted that the back of Ms. Daly s scalp was extremely tender. He suspected she had a condition called right occipital neuralgia. He also injected the nerve. Dr. Stephen Goldware, another neurosurgeon, was asked to examine Ms. Daly on behalf of State Farm. Dr. Goldware saw Ms. Daly in November Dr. Goldware reviewed an MRI performed on January 4, 2004, which indicated herniated discs at L4-5 and C5-6. He observed that Ms. Daly had two problems as a result of the accident. He opined that she had an exacerbation of the herniated disc at C5-6 and that she had a new herniated disc at L4-5. Dr. Goldware testified that he would recommend she have neck surgery because she was having such a difficult time moving her neck. Ms. Daly also initially saw Dr. James Blackburn, a psychiatrist, on August 4, He diagnosed her with adjustment disorder with depression and anxiety. He testified that the adjustment disorder has been continuing since the accident and had not been addressed. Dr. Blackburn explained that Ms. Daly became depressed when she realized her physical condition was not going to get any better. Recognizing that Ms. Daly also had to deal with the death of her husband, Dr. Blackburn testified that she would not have had the intensity of the anxiety and depression but for the accident. It was Dr. Blackburn s opinion that until Ms. Daly can regain an acceptable level of ability both physically and emotionally, she is going to continue to be depressed. He opined that Ms. Daly would continue to need treatment for at least a year or two, maybe indefinitely, depending on her physical condition. 4

7 Ms. Daly testified that she went to a massage therapist following the 1996 accident. Once her symptoms were relieved, she continued to see the massage therapist as a stress reliever to help her relax since she was caring for her sick husband. After the second accident, massages became an important part of her care to help relieve the pain. Ms. Daly also stated that physical therapy was the only thing that allowed her to get out of bed in the morning. Ms. Daly further testified that she started stumbling about six months after the accident. She would even fall out of the bed at times because her foot would not support her. She explained that medications have worked somewhat, and the injections seem to work for a while, but then the effects wear off. Ms. Daly testified that the accident has changed her life and the way she does things. She is now afraid to drive at night. She can no longer perform household chores like mopping and changing the bed. Ms. Daly is unable to do physical activities with her daughter like playing ball, hopscotch, or jacks. A jury trial was held on May 12, 16, and 17, Past medical expenses were stipulated and were awarded in the amount of $81, The jury found that Ms. Daly s injuries were caused by the accident and awarded $30, for past general damages, $30, for future general damages, and $15, for loss of enjoyment of life. Future medical expenses in the amount of $60, were awarded. Emily Daly was awarded $2, for her loss of consortium claim. Ms. Daly filed the present appeal asking for an increase in the amounts of damages awarded. GENERAL DAMAGES The initial inquiry in reviewing an award of general damages is whether the award for the particular injuries and their effects under the particular circumstances 5

8 on the particular injured person is a clear abuse of the much discretion of the trier of fact. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct (1994). 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. Id. at 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. Id. at General damages are those which may not be fixed with exactitude. They involve mental and physical pain and suffering, inconvenience, loss of intellectual gratification and physical enjoyment, or other losses of life or lifestyle which cannot be definitely measured in monetary terms. Smith v. Municipality of Ferriday, , p. 8 (La.App. 3 Cir. 2/1/06), 922 So.2d 1222, 1229, writ denied, (La. 9/29/06), 937 So.2d 860. The severity and duration of one s injuries are factors in the assessment of damages for pain and suffering. Id. [D]amages for loss of enjoyment of life are recoverable upon proof that the party s lifestyle has been detrimentally altered or that the injured party has been forced to give up activities because of his injury. Basco v. Liberty Mut. Ins. Co., , p. 11 (La.App. 3 Cir. 8/17/05), 909 So.2d 660, 667. There is no doubt that Ms. Daly was seriously injured as a result of this accident. Ms. Daly not only suffered a new herniated disc in the lumbar region, but the previously-herniated disc in the cervical area was aggravated. Both of these injuries have caused her severe pain. The herniation in her lower back has caused tremendous pain down into her right leg and foot. Although the herniation in Ms. 6

9 Daly s neck preexisted this accident, all symptoms had resolved prior to the 2002 accident. Ms. Daly testified that the pain in her neck and right arm was more intense following the present accident than it had been following the 1996 accident. In order to live with the pain, Ms. Daly must endure trigger point injections, epidural steroid injections, and physical therapy. She also suffers with an occipital nerve problem, for which she is now receiving injections. After just losing her husband, Ms. Daly has also had to face the day-to-day issues of living with this pain while raising her young daughter. Her testimony revealed how worried she is as the only parent of her child and her ability to care for her daughter until she is old enough to care for herself. No doctor found that Ms. Daly was exaggerating her symptoms. The pain and symptoms she is experiencing are consistent with the herniations on the MRIs. The doctors opined that Ms. Daly s condition could continue for the rest of her life since she was still in extreme pain four years after the accident. All the doctors agreed that she may need surgery and that it is even possible that she will suffer with pain following surgery. Ms. Daly still continues with physical therapy, injections, and massage therapy, all in an effort to resume some of her daily activities. The pain has limited Ms. Daly s ability to participate in activities with her child and to care for her child. Ms. Daly also explained that she is now scared to drive at night. She is depressed because the pain she suffers has not improved, and there does not seem to be any forthcoming improvement in the future. Based on this evidence, we find that the jury abused its discretion in the award of general damages. We find that the lowest reasonable amount the jury could have awarded for past physical and mental pain and suffering is $75, We also find that $75, is the lowest reasonable amount the jury could have awarded for future physical and mental pain and suffering. For loss of enjoyment of life, we find 7

10 that $45, is the lowest reasonable amount that the jury could have awarded. Ms. Daly also appeals the jury s award of $2, to her daughter Emily as loss of consortium damages. Loss of consortium contemplates something more than a loss of general overall happiness, but includes seven components: love and affection, society and companionship, sexual relations, right of performance of material services, right of support, aid and assistance, and felicity. The elements of a minor child s claim for loss of consortium are essentially the same as the spouse s, without, of course, the sexual component. Detraz v. Hartford Accid. & Indem. Co., , p. 9 (La.App. 3 Cir. 12/7/94), 647 So.2d 576, 581 (citations omitted). Ms. Daly testified that her daughter is very clingy and dependent since the accident. The fact that she lost one parent has affected her since the accident because now she is afraid of losing her only parent. After the accident, Ms. Daly testified that in addition to the fact that she can no longer physically participate in play with her child, they no longer go out to dinner at night due to her fear of driving at night. Going out to dinner had been a treat for both of them. She knows her daughter misses the mom she knew before the accident. Debra Smith works with Ms. Daly and brings her for her epidural injections since she needs someone to drive her home afterwards. Ms. Smith testified that she has to help Ms. Daly get into bed when she brings her home. Ms. Smith explained how Emily cried when she saw her mother after an injection because she was afraid her mother was going to die. Emily testified at trial and confirmed that she feels sad when her mother has to go to bed for a long time. We find that $2, was abusively low as loss of consortium damages for Emily. We find that $5, is the lowest reasonable award the jury could have awarded under these circumstances. 8

11 FUTURE MEDICAL EXPENSES Ms. Daly also appeals the jury s award of $60, in future medical expenses. She claims the award is inadequate to address both her conservative care and her need for surgery in the future. Future medical expenses are a component of special damages and must be proven by a preponderance of the evidence. Basco v. Liberty Mut. Ins. Co., (La.App. 3 Cir. 8/17/05), 909 So.2d 660. To recover future medical expenses, the plaintiff must present medical testimony to show that it is more probable than not that future medical treatment is indicated and the probable cost of the treatment. Id. Nevertheless, the supreme court has held that an award of future medical expenses can be made where the record establishes the need for future medical treatment and evidence of past medical expenses and other evidence allows the court to determine a minimum amount that reasonable minds could not disagree will be required. Stiles v. K Mart Corp., 597 So.2d 1012, 1013 (La.1992). Melancon v. Lafayette Ins. Co., , pp (La.App. 3 Cir. 3/29/06), 926 So.2d 693, , writs denied, , (La. 6/16/06), 929 So.2d 1291, While Dr. Goldware was of the opinion that Ms. Daly needed neck surgery, no other doctor was of the opinion that neck or back surgery was necessary at this time. There was testimony that surgery may be the only option to alleviate Ms. Daly s pain, but surgery was not a certainty. Ms. Daly testified that she wanted to at least avoid surgery until her daughter is old enough to care for herself. She further testified that if her pain got bad enough, then she would have the surgery. Therefore, Ms. Daly herself was not sure of whether she would have the surgery. We find that Ms. Daly failed to prove that it is more probable than not that she will need surgery in the future. The evidence does establish that conservative treatment is necessary to help her continue to cope with the pain she experiences daily. Medical expenses for the four years of conservative treatment prior to trial were stipulated at $81, Therefore, we find that the jury s award of $60,

12 was substantiated by the evidence. For the above reasons the judgment of the trial court is amended to increase the award to Julie Elise Shelton-Daly for past general damages to $75,000.00, the award for future general damages to $75,000.00, and the award for loss of enjoyment of life to $45, The award to Emily Daly for loss of consortium is increased to $5, In all other respects, the judgment is affirmed. Costs of this appeal assessed to State Farm Mutual Auto Insurance Company. AFFIRMED AS AMENDED. This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules - Court of Appeal. Rule