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Reed v. LaCombe

Court of Appeals of Louisiana, Third Circuit

July 29, 2015

TYRON REED AND TINA REED, INDIVIDUALLY AND ON BEHALF OF HER MINOR CHILD, TRENTEZ J. GILCHRIST
v.
DONDI LACOMBE AND STATE OF LOUISIANA, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, AVOYELLES CORRECTIONAL CENTER

Page 680

APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES, NO. 244,626. HONORABLE GEORGE C. METOYER JR., DISTRICT JUDGE.

Victoria R. Murry, Louisiana Department of Justice, Alexandria, Louisiana, COUNSEL FOR DEFENDANTS/APPELLANTS: Avoyelles Correctional Center, Dondi LaCombe, and State of Louisiana, Department of Public Safety and Corrections.

Howell D. Jones, IV, Jones Law Firm, Alexandria, Louisiana, COUNSEL FOR PLAINTIFFS/APPELLEES: Tyron Reed and Tina Reed.

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, Marc T. Amy, James T. Genovese, and Phyllis M. Keaty, Judges. Thibodeaux, Chief Judge, dissents for the reasons assigned by Judge Cooks. Cooks, J., dissents in part and assigns written reasons. Amy, J., concurs in part, dissents in part, and assigns written reasons.

OPINION

Page 681

[15-120 La.App. 3 Cir. 1] GENOVESE, Judge.

The plaintiffs in this matter alleged that they were injured as a result of an automobile accident caused by the defendant-driver, an employee of the State of Louisiana, Department of Public Safety and Corrections. After a trial, the trial court entered judgment in favor of the plaintiffs and awarded both general and special damages to each plaintiff. The State appeals, contesting the damage awards. For the following reasons, we amend the judgment in part and affirm as amended.

Page 682

FACTS AND PROCEDURAL BACKGROUND

Tyron Reed was driving on the interstate with Tina Reed and Trentez Gilchrist, the Reeds' minor son,[1] as passengers in the car. According to the record, Dondi LaCombe, who was employed by the State of Louisiana, Department of Public Safety and Corrections, and driving a van owned by the State, struck the Reeds' vehicle while attempting to change lanes shortly after merging on to the interstate. Alleging that they suffered injuries as a result of the accident, the Reeds filed suit against Mr. LaCombe and the State.

In addition to testimony concerning the mechanics of the accident, Mr. and Mrs. Reed testified about their injuries and Trentez's injuries. As relevant to this appeal, Mr. Reed testified that after the accident, he had headaches and lower back pain. The day after the accident, Mr. Reed went to the emergency room for those complaints. Over the next year, Mr. Reed made a few visits to a chiropractor and to a physician who prescribed acupuncture and physical therapy. Mr. Reed [15-120 La.App. 3 Cir. 2] testified that, at the time of trial, he still had pain in his back when he bends over, which has limited his ability to play with his children and to do certain jobs.

In addition to his physical complaints, Mr. Reed testified that on April 21, 2012, approximately a week after the accident, he had a seizure and sought treatment at the Christus St. Frances Cabrini emergency room. The records from that visit, which were entered into evidence, indicate that Mr. Reed had a cranial CT scan. Mr. Reed also submitted to a drug screen, which returned positive results for alcohol, cocaine, and cannabinoids.[2] Mr. Reed was diagnosed with " seizure-like activity" and " polysubstance abuse." Mr. Reed also went to the Rapides Regional Medical Center emergency room on April 24, 2012, and October 31, 2012, with complaints of seizure activity.

The record indicates that Mr. Reed was eventually referred to Dr. Charles Ugokwe, a neurologist. Dr. Ugokwe's deposition was admitted into evidence. Mr. Reed visited Dr. Ugokwe on one occasion in December 2012 and was given a prescription for Depakote. The evidence was that Dr. Ugokwe prescribed five months' worth of Depakote and that Mr. Reed did not seek further treatment. Mr. Reed testified that he had not had any seizures for approximately a year and half at the time of trial. According to Dr. Ugokwe, alcohol and polysubstance abuse can cause seizures. Further, Dr. Ugokwe stated that it would be unusual for seizure activity to stop completely without treatment. Dr. Ugokwe also opined that, without an EEG or video, he could not be certain that Mr. Reed actually had a seizure and that, assuming that he did, it was " less than 25 percent to really say that [the car accident] caused the seizure."

[15-120 La.App. 3 Cir. 3] With regard to Trentez's injuries, Mrs. Reed testified that Trentez hit his head on the door during the accident and that he has had headaches ever since. Trentez also went to the Cabrini emergency room on April 17, 2012, the day after the accident.

Page 683

During that visit, he had X-rays taken and was told to take Tylenol and Motrin. Mrs. Reed testified that, on April 26, 2012, a little more than a week after the accident, Trentez went to the Oakdale Community Care emergency room because he was continuing to complain of headaches. According to Mrs. Reed, Trentez still has daily headaches and complains about them at least five times a week. Mrs. Reed testified that Trentez did have headaches before the accident, but that the headaches stopped when they took him off his ADHD medication. Mrs. Reed also took Trentez to the chiropractor, where he was seen in May and June of 2012.

After trial, the trial court entered judgment in favor of the plaintiffs and awarded Mr. Reed general damages in the amount of $15,000.00 and special damages in the amount of $30,578.19; Mrs. Reed general damages in the amount of $25,000.00 and special damages in the amount of $8,179.32; and Trentez general damages in the amount of $10,000.00 and special damages in the amount of $1,447.46. The State appeals.

ASSIGNMENTS OF ERROR

The State assigns the following errors for our review:

I. The trial court erred in awarding excessive damages in the amount of ten thousand ($10,000.00) dollars in general damages to Trentez Gilchrist.
II. The trial court erred in awarding $20,816.00 in medical expenses to Tyron Reed for evaluation of his purported seizure condition where his treating neurologist could not relate the seizure condition to the accident with even a 25% probability.

[15-120 La.App. 3 Cir. 4] LAW AND DISCUSSION

Special Damages

The State contends that the trial court erred in awarding Mr. Reed special damages related to his evaluation and treatment for seizures. " Special damages are those damages which may be determined with some degree of certainty and include past and future medical expenses and past and future lost wages." McDaniel v. Carencro Lions Club, 05-1013, p. 44 (La.App. 3 Cir. 7/12/06), 934 So.2d 945, 977, writ denied, 06-1998 (La. 11/3/06), 940 So.2d 671. An award of special damages is subject to the manifest error standard of review. Thibeaux v. Trotter, 04-482 (La.App. 3 Cir. 9/29/04), 883 So.2d 1128, writ denied, 04-2692 (La. 2/18/05), 896 So.2d 31.

The plaintiff must prove his entitlement to special damages by a preponderance of the evidence. McDaniel, 934 So.2d 945. Thus, " [t]o recover past medical expenses, a plaintiff must show, through medical testimony, both the existence of the injury and a causal connection between the injuries and the incident or accident of which plaintiff complains." Burrell v. Williams, 05-1625, p. 7 (La.App. 1 Cir. 6/9/06), 938 So.2d 694, 699. The allegation that a plaintiff incurred medical expenses and the presentation of a related bill is sufficient evidence to support the inclusion of those expenses in the judgment unless there is sufficient contradictory evidence or reasonable suspicion that the bill is unrelated to the accident. Simon v. Lacoste, 05-550 (La.App. 3 Cir. 12/30/05), 918 So.2d 1102.

It is not contested that the total amount of medical expenses associated with the treatment of Mr. Reed's seizure condition is $20,816.00, consisting of: 1) $5,204.00 in charges from the April 21, 2012 Cabrini emergency room visit; 2) [15-120 ...


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