APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT. PARISH OF IBERIA, NO. 107,387. HONORABLE CHARLES L. PORTER, DISTRICT JUDGE.
Patrick J. Briney, Hallie P. Coreil, Briney Foret Corry, LLP, Lafayette, Louisiana, Counsel for Defendants/Appellants: Podiatry Insurance Company of America, Amy Schunemeyer, DPM.
Nadia de la Houssaye, Jones Walker LLP, Lafayette, Louisiana, Counsel for Defendant/Appellant: Louisiana Patient's Compensation Fund.
Scott H. Frugé, deGravelles, Palmintier, Holthaus & Frugé, L.L.P., Baton Rouge, Louisiana, Counsel for Plaintiff/Appellee: Elizabeth Falterman.
Court composed of Elizabeth A. Pickett, James T. Genovese, and Phyllis M. Keaty, Judges.
[14-216 La.App. 3 Cir. 1] KEATY, Judge.
In this medical malpractice case, Elizabeth Falterman (Plaintiff), filed suit against Dr. Amy Schunemeyer (Defendant), a podiatrist, alleging that the revisional bunionectomy that Defendant performed on her right foot in December 2002 was improperly performed and caused damages to her right foot and to other parts of her body, necessitating corrective surgery and leaving her with permanent physical disability and the need for further corrective surgery.
After a trial, the jury determined that Defendant breached the applicable standard of care and that such breach caused or contributed to the injury to Plaintiff. The jury awarded Plaintiff $15,000 in past medical expenses. Thereafter, Plaintiff filed a motion for additur and/or new trial regarding the alleged inadequacy of the damages award. Defendant also filed a motion for new trial on the grounds that Plaintiff's counsel had attacked Dr. Schunemeyer's credibility in his rebuttal closing argument, and, because its request to present a surrebuttal closing argument was denied, Dr. Schunemeyer was " unfairly deprived of the opportunity to defend her credibility against the attack before the jury."
Following a hearing, the trial court rendered judgment denying Defendant's motion for new trial, granting Plaintiff's motion for additur, maintaining the jury's verdict, and awarding Plaintiff an additional $100,000 for past and future pain and suffering, $75,000 for past and future mental pain and suffering, and $75,000 for past and future loss of enjoyment of life. The judgment cast Defendant with liability for $100,000 of Plaintiff's damages and the Louisiana Patient's [14-216 La.App. 3 Cir.
2] Compensation Fund (the PCF) was cast with liability for the remaining $165,000 of Plaintiff's damages. Defendant suspensively appealed and is now before this court asserting that the trial court erred: 1) in granting Plaintiff's motion for additur absent Defendant's consent; 2) in usurping the jury's role of ultimate fact finder and judge of credibility; 3) in failing to award the lowest reasonable amount upon granting Plaintiff's motion for additur; and 4) in choosing which portions of the verdict to accept (liability and special damages) and which to reject (general damages), yet denying Defendant's motion for new trial. For the following reasons, we reverse and remand.
Louisiana Code of Civil Procedure Article 1814, entitled " Remittitur or additur as alternative to new trial; reformation of verdict," provides as follows:
If the trial court is of the opinion that the verdict is so excessive or inadequate that a new trial should be granted for that reason only, it may indicate to the party or his attorney within what time he may enter a remittitur or additur. This remittitur or additur is to be entered only with the consent of the plaintiff or the defendant as the case may be, as an alternative to a new trial, and is to be entered only if the issue of quantum is clearly and fairly separable from other issues in the ...