KIMBERLY AND TODD THIBODEAUX, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD, GABRIELLE THIBODEAUX
JAMES F. DONNELL, M.D.
OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH
CRICHTON, J. 
granted the writ in this medical malpractice case to
determine whether the court of appeal properly assessed
damages under the principles set forth in Coco v. Winston
Industries Inc., 341 So.2d 332 (La. 1976). We find that,
because the court of appeal found manifest error in the
jury's factual findings, the court should have instead
performed a de novo review of damages under the
principles outlined in Mart v. Hill, 505 So.2d 1120
(La. 1987). For the reasons set forth below, we reverse the
judgment of the court of appeal and remand to the court of
appeal for it to reconsider its decision under the principles
set forth in Mart.
2003, plaintiff Kimberly Thibodeaux (then 37 years old),
married to Todd Thibodeaux, became pregnant with her fourth
child. Dr. James Donnell was her obstetrician-gynecologist
throughout her pregnancy. During the course of the pregnancy,
Mrs. Thibodeaux was diagnosed with complete placenta previa
and, in mid-November, at approximately 29 weeks pregnant, she
was hospitalized for four days at Terrebonne General Medical
Center ("TGMC") in Houma, for vaginal bleeding
secondary to placenta previa. On November 18, upon Dr.
Donnell's referral, she consulted a maternal/fetal
medicine specialist who handled high risk pregnancies; the
specialist recommended rest, limited activity, and delivery
of Mrs. Thibodeaux's child at 36-37 weeks gestation. The
next day, November 19, Mrs. Thibodeaux returned to TGMC with
renewed vaginal bleeding and contractions. Dr. Donnell
delivered Gabrielle Thibodeaux via cesarean section on
the baby's delivery, Dr. Donnell was unable to remove the
placenta from Mrs. Thibodeaux's lower uterine segment and
encountered vigorous bleeding. As a result, Dr. Donnell
performed an emergency cesarean hysterectomy, which entailed
removal of plaintiff's uterus and cervix. After
completing the hysterectomy, and while preparing to close the
Mrs. Thibodeaux's abdomen, Dr. Donnell discovered a large
laceration to her bladder. At that point, Dr. Donnell considered a
urologic consultation due to the size of the laceration, but
he ultimately repaired it himself. Dr. Donnell testified that
he made this decision because Mrs. Thibodeaux had "lost
a lot of blood" and he wanted to close her abdominal
wall to avoid additional blood loss.
completing the surgery, Dr. Donnell ordered a post-operative
test to determine if the bladder repair was successful. The
test revealed that the bladder sutures were obstructing Mrs.
Thibodeaux's ureters, the tubes that drain urine from the
kidney into the bladder. This obstruction was then confirmed
by a cystoscopy performed by a urologist, Dr. Robert
Alexander, consulted by Dr. Donnell. The same day as the
birth and cesarean hysterectomy, Dr. Alexander reopened Mrs.
Thibodeaux's abdomen, removed the bladder sutures to free
the ureters, and re- repaired the bladder laceration. Dr.
Alexander also inserted a catheter in plaintiffs bladder and
stents into her ureters to facilitate urine drainage from the
kidneys to the bladder. Mrs. Thibodeaux remained hospitalized
for five days.
Thibodeaux followed up with Dr. Alexander several weeks
later, and underwent separate procedures to remove the
catheter and stents. Dr. Alexander testified that, at that
point, her urologic system was flowing properly; the bladder
was not leaking, and the ureters were functioning correctly.
Mrs. Thibodeaux followed up again with Dr. Alexander in late
April 2004, at which time he unsuccessfully attempted to
distend her bladder. He determined her bladder had a capacity
of 300-350 cubic centimeters (ccs), less than the average
bladder capacity of 400-500 ccs for a person of her size.
her bladder healed, Mrs. Thibodeaux continued to see Dr.
Alexander for three years with irritative bladder symptoms,
including urinary frequency every 30-60 minutes, urgency,
urine leakage, painful urination, painful sexual intercourse,
urination during sexual intercourse, excessive nighttime
urination, and abdominal pain. Dr. Alexander diagnosed her
with interstitial cystitis, also known as painful bladder
syndrome, and prescribed medications, none of which relieved
plaintiffs symptoms. Mrs. Thibodeaux last saw Dr. Alexander
in September 2007, when he again unsuccessfully attempted to
distend her bladder. At that point, he determined her bladder
had a capacity of only 250 ccs. According to Dr. Alexander,
Mrs. Thibodeaux's diminished bladder capacity is
Mrs. Thibodeaux filed a request for medical review in
November 2004, but the medical review panel expired before an
opinion was issued. In October 2006, the Thibodeauxs filed
this medical malpractice suit against Dr. Donnell,
individually, and on behalf of their child, Gabrielle. The
trial court dismissed the suit as prescribed, but the court
of appeal reversed, finding that the suit was timely filed.
Thibodeaux v. Donnell, 07-1845 (La.App. 1 Cir.
9/12/08), 994 So.2d 612. This Court affirmed, holding that
the case was not prescribed and could go forward. 08-2436
(La. 5/5/09), 9 So.3d 120.
matter proceeded to a four-day jury trial in May 2014, which
concluded with a verdict in favor of the Thibodeauxs. As the
court of appeal noted, the expert witnesses disagreed as to
whether Mrs. Thibodeaux's symptoms were caused by the
failed bladder repair or by interstitial cystitis unrelated
to the failed bladder repair. Dr. Alexander testified that he
had not treated Mrs. Thibodeaux before November 2003, but
that there was no evidence she had a history of these
symptoms before that time. He also testified, however, that
interstitial cystitis has no known cause and that it can
occur in the absence of surgery or trauma to the bladder. On
the other hand, the Thibodeauxs' expert, Dr. Fred Duboe,
testified that Dr. Donnell's failed bladder repair
contributed to Mrs. Thibodeaux's reduced bladder capacity
and, consequently, her urinary frequency and urgency. Dr.
Duboe admitted, however, that the interstitial cystitis
symptoms were "not as clear."
considering the evidence and testimony, the jury found that
Dr. Donnell breached the applicable standard of care in the
treatment of Mrs. Thibodeaux and that she was injured as a
result of Dr. Donnell's breach of the standard of care.
With respect to damages, the jury award was as follows:
Physical pain and suffering (past, present, future): $0
Mental pain and suffering (past, present, future): $0
Permanent Disability: $0 Loss of enjoyment of life: $0
Medical expenses: $60, 000
Loss of consortium: $0
Loss of consortium: $0
Total Damages: $60, 000
trial court signed a judgment conforming to the jury verdict.
Both parties filed motions for judgments notwithstanding the
verdict, which were denied.
appealed, contending that the jury abused its discretion by
awarding special damages but failing to award general
damages. Dr. Donnell did not appeal the verdict. The court of
appeal reversed in part, first holding that there was a
"reasonable factual basis in the record" to support
the jury's finding of causation, specifically that (i)
Dr. Donnell's failed bladder repair caused injury to Mrs.
Thibodeaux, but (ii) all of Mrs. Thibodeaux's mental or
physical pain and suffering, discomfort, inconvenience,
and/or emotional trauma were not causally related to Dr.
Donnell's malpractice. 15-0503, p.6-7 (La.App. 1 Cir.
2/24/16), 189 So.3d 469, 475. The court of appeal then held
that, because the jury found plaintiff suffered
"some injuries" causally related to the
failed bladder repair, the jury abused its discretion in
failing to award plaintiff "some amount of
general damages." Id., 15-0503 p.7, 189 So.3d
at 475. The court then posed the inquiry: "The issue
becomes, then, to what extent were Mrs. Thibodeaux's
injuries causally related to Dr. Donnell's failed bladder
repair. . ." Id.
this Court's decision in Coco v. Winston Industries,
Inc., 341 So.2d 332 (La. 1977), the court of appeal
noted it must determine the "lowest amount of general
damages associated with those injuries reasonably within the
jury's discretion." Id. After a review of
the evidence and after analyzing the range of general damages
awards for similar injuries, the court of appeal found that
$50, 000 was the lowest amount reasonably within the
jury's discretion and consistent with the special damages
award. Id., 15-0503 p. 11-12, 189 So.3d at 478-79.
The court of appeal also held that the jury manifestly erred
in finding that Dr. Donnell's malpractice did not cause
loss of consortium damages to Mr. Thibodeaux and Gabrielle.
The court concluded that the evidence established that both
Mr. Thibodeaux and Gabrielle suffered from Mrs.
Thibodeaux's inability to accompany them in recreational
activities they previously enjoyed and the Thibodeaux's
sex life had been impacted "both quantitatively and
qualitatively." Id., 15-0503 p. 13, 189 So.3d
at 479-80. Based on the evidence-but "mindful that Dr.
Donnell's failed bladder repair only caused some of their
damages"-the court of appeal found the appropriate loss
of consortium awards to be $15, 000 for Mr. Thibodeaux and
$5, 000 for Gabrielle, the "lowest amount reasonably
within the jury's discretion." Id., 15-0503
p. 14, 189 So.3d at 480.
filed a writ of certiorari in this Court, which was granted.
16-0570 (La. 6/3/16), 192 So.3d 756.
noted above, we granted the writ in this matter to determine
whether the court of appeal properly adjusted damages under
the principles set forth in Coco v. Winston
Industries Inc., 341 So.2d 332 (La. 1976). In
Coco, the plaintiff filed suit against his employer,
seeking damages arising from the loss of several fingers that
occurred while operating a saw. The jury returned a verdict
in favor of the plaintiff for $350, 000, and the court of
appeal, on rehearing, reduced the damage award to $140, 000.
Id. at 333-34. This Court reinstated the jury's
damage award, and articulated the applicable standard of
review for an appellate court seeking to disturb a damage
[B]efore a Court of Appeal can disturb an award made by a
trial court that the record must clearly reveal that the
trier of fact abused its discretion in making its award. Only
after making the finding that the record supports that the
lower court abused its much discretion can the appellate
court disturb the award, and then only to the extent of
lowering it (or raising it) to the highest (or lowest) point
which is reasonably within the discretion afforded that
court. It is never appropriate for a Court of Appeal,
having found that the trial court has abused its discretion,
simply to decide what it considers an appropriate award on
the basis of the evidence.
Id. at 335 (emphasis added). The Coco Court
held that the jury in that case "did not abuse its much
discretion" in assessing $350, 000 in damages.
are several rationales for what has become known as the
Coco Rule.The first
rationale is that the "trier of fact has more direct
contact with the parties, the witnesses, and the evidence and
thus can better evaluate the true extent of plaintiff's
injury, whereas the court of appeal bases its decision solely
on the written record, briefs, and oral argument."
Clement v. Frey, 95-C-1119, 95-C-1163, p.5-6 (La.
1/16/96), 666 So.2d 607, 610. This fundamental principle has
roots in our Civil Code. See La. C.C. art. 2324.1
("In the assessment of damages in cases of offenses,
quasi offenses, and quasi contracts, much discretion must be
left to the judge or jury."). As this Court has stated,
"[s]ince an award of damages for personal injuries is of
necessity somewhat arbitrary and also must vary greatly with
the facts and circumstances of each case, the trial court is
entrusted with large discretion making such awards, which
discretion should not be disturbed on appellate review."
Id. (quoting Gaspard v. LeMaire, 158 So.2d
149, 160 (La. 1963)). Two other, related, considerations
influence the Coco Rule. First, "the trial
court is in the best position to weigh the claimant's
testimony." Id. And second, "repeated
substitution by an appellate court of its own opinion as to
quantum for that of the trial court, when combined with other
appellate practices inherent in the Louisiana system of
appellate review of law and fact, may have a demoralizing
effect upon a trial judge in his assessment of his role in
the judicial process." Id. (citing Frank L.
Maraist, Procedure, 38 La. L. Rev. 503, 511 (1978)).
made clear several years after Coco, in Mart v.
Hill, 505 So.2d 1120 (La. 1987), the Coco Rule
does not apply to every appellate review of a damages award.
Mart, which involved an automobile accident, was
tried before a commissioner, who found the plaintiff was 50%
at fault. The commissioner awarded no damages for the
consequences of the accident beyond a certain date, finding
that the plaintiff did not prove that his surgeries and
disabilities beyond that date were causally related to the
accident. The commissioner recommended a total damage award
of $18, 760.00, which was subject to the 50% reduction.
Id. at 1121-22. The court of appeal affirmed, but
this Court reversed, finding that the lower courts were
"clearly wrong" and that the plaintiff's
disability was "causally related" to the accident.
Id. at 1127-28. We expressly found the Coco
analysis inapplicable and instead applied what was termed a
"res nova"-or de novo- determination of
The Coco principle of appellate review applies when
an appellant questions the adequacy of a monetary award in a
case which is otherwise uncomplicated by factual errors
relating to the cause or duration of the plaintiff's
disability. . . . Simply stated, Coco applies
when an appellate court is asked to correct a fact
finder's abuse of discretion in assessing the appropriate
monetary award for a given injury. The principles are not
applicable when a [de novo] review of quantum must be made to
compensate a plaintiff for damages which the trial court
did not believe were causally related to the accident.
Id. at 1128 (emphasis added). In other words,
Coco's highest/lowest principle does not apply
when a reviewing court disturbs a jury's factual finding
related to causation. See Frank L. Maraist, 1 La.
Civ. L. Treatise, Civ. Pro. § 14:14 (2d ed.) (Nov. 2015)
("The 'much discretion' rule does not apply if
there was error in the trial court which ...