JAMES A. THOMAS AND SHARON THOMAS Plaintiffs-Appellants
BRYAN BOYD AND WERNER ENTERPRISES, INC. OF NEBRASKA Defendants-Appellees
from the Fourth Judicial District Court for the Parish of
Ouachita, Louisiana Trial Court No. 2011-1844 Honorable H.
Stephens Winters, Judge
JOHNSON & PLACKE, L.L.P. Don H. Johnson Allan L. Placke
COOK, YANCEY, KING & GALLOWAY Bernard S. Johnson for
PERRIER & LACOSTE, L.L.C. Guy D. Perrier Ralph J. Aucoin,
Jr. for Appellees
GALLOWAY, JOHNSON, TOMPKINS, BURR & SMITH Doris T.
Bobadilla Kelsey L. Bonnaffons for Appellees Intervenors,
Louisiana United Businesses Association Casualty Insurance
WILLIAMS, GARRETT, and STONE, JJ.
plaintiffs, James A. Thomas and Sharon Thomas, appeal from a
jury verdict and judgment which they claim awarded
insufficient damages for his injuries resulting from an
accident at work and for her loss of consortium. For the
following reasons, we affirm in part, reverse in part, amend
in part, and, as amended, affirm the trial court judgment.
Thomas was employed as a forklift operator at Marsala
Beverage Company in Monroe. His duties included loading and
unloading trucks with a forklift, manually lifting kegs of
beer and cases of drinks, and performing janitorial duties.
If an employee worked a 40-hour week, the company would pay
for 50 hours. On November 4, 2010, Mr. Thomas, who was 42
years old, was unloading cargo from the back of a
tractor-trailer. The truck was owned by Werner Enterprises,
Inc., and operated by Bryan Boyd. While Mr. Thomas was on the
forklift in the back of the truck, Boyd pulled away from the
loading dock, causing Mr. Thomas, still seated on the
forklift, to fall several feet out of the back of the truck
to the concrete pavement.
Thomas left work and drove himself to the office of the
company doctor, Dr. George Ronald Woods. Mr. Thomas claimed
he injured his neck, back, arms, and legs. Dr. Woods ordered
X-rays, which failed to show any fractures in Mr.
Thomas's neck or spine. Mr. Thomas wanted to return to
work in order to meet the 40-hour requirement to be paid for
50 hours. Dr. Woods released him to return to work. Mr.
Thomas worked for several months after the accident
performing janitorial duties. Due to his complaints of
persistent pain, he continued going to Dr. Woods, who treated
Mr. Thomas through January 2011. Mr. Thomas ceased working in
February 2011, and filed a workers' compensation claim
against Marsala. Mr. Thomas was seen by numerous doctors
whose findings will be discussed below. In early 2014, Mr.
Thomas was referred by his attorneys to a pain management
specialist, Dr. Vincent Forte, who began treating
2011, the Thomases filed this tort suit against Boyd and
Werner Enterprises seeking damages for pain and suffering and
mental distress, medical expenses, lost wages and/or earning
capacity, disability, and loss of consortium. Marsala's
workers' compensation carrier, Louisiana United
Businesses Association Casualty Insurance Company
("LUBA"), intervened to recoup workers'
compensation benefits paid to Mr. Thomas. The plaintiffs,
joined by LUBA, filed a motion for partial summary judgment,
on the issue of liability, contending that there was no
dispute that the accident was caused solely by the negligence
of the defendants. The motion was granted. Accordingly,
Werner and its employee were determined to be totally at
fault in causing the accident. Issues pertaining to the
claimed extent of injuries and damages would be determined at
the tort suit was pending, LUBA refused to cover some of the
treatment sought by Mr. Thomas. In the workers'
compensation court, Mr. Thomas filed a disputed claim in
connection with some medical treatment recommended by Dr.
Forte. A workers' compensation judge reversed an adverse
ruling by the workers' compensation associate medical
director and ruled that Mr. Thomas was entitled to additional
injections. That matter was on appeal when the tort suit
eventually went to trial. This court affirmed that decision
in Thomas v. Marsala Beverage Co., 50, 062 (La.App.
2 Cir. 9/30/15), 179 So.3d 620. The defendants in this tort
suit were not involved in the workers' compensation
litigation and had no control over the course of Mr.
case was tried over numerous days in August
sides presented extensive evidence and testimony from
numerous lay and expert witnesses. Voluminous exhibits were
introduced into evidence. The plaintiffs' contention was
that Mr. Thomas was totally and permanently disabled as a
result of the accident, physically incapable of ever
returning to any type of work, and in need of pain management
treatment for the remainder of his life. The plaintiffs
sought damages in excess of $2 million. The defendants urged
that any injuries suffered by Mr. Thomas were not as severe
or permanent as claimed by the plaintiffs and that Mr. Thomas
was capable of working but simply refused to do so. According
to the defendants, Mr. Thomas's continuing subjective
complaints of constant and persistent pain were questionable
because he exaggerated and magnified his symptoms and had not
been candid with the numerous healthcare providers.
August 11, 2015, the jury returned a verdict finding that Mr.
Thomas proved that he was injured by the accident, but he
failed to mitigate his damages by 55%. He was awarded $40,
000 for general damages, $34, 977 for past lost wages, and
$40, 000 for past medical expenses. He was not awarded
anything for future medical expenses, future lost wages, or
loss of earning capacity. Mrs. Thomas was awarded $10, 000
for loss of consortium. On September 14, 2015, the trial
court signed a judgment incorporating the jury verdict and
awarding Mr. Thomas $51, 739.65 in total damages, after the
55% reduction for failure to mitigate, and $10, 000 to Mrs.
Thomas. The statutory lien in favor of LUBA was recognized,
with its recovery to be considered later by the court.
plaintiffs filed a motion for JNOV, claiming the jury verdict
and trial court judgment were contrary to the law and
evidence and an abuse of discretion. The motion was denied by
the trial court. The plaintiffs appealed the final judgment
and the jury verdict. They have not appealed the denial of
appeal, the plaintiffs argue that the jury erred in making
abusively low awards for general damages, past lost wages and
loss of consortium and in failing to make any award for
future medical expenses, future lost wages and loss of future
earning capacity. They maintain that the jury erred in
finding that Mr. Thomas failed to mitigate his damages, which
resulted in a reduction of his damage awards. Finally, they
contend that the trial court erred in applying La. C.E. art.
414 in such a way as to unfairly restrict their ability to
rebut inferences made by the defendants. To address the
plaintiffs' arguments on appeal, we have conducted an
exhaustive review of the lengthy trial transcript and
voluminous exhibits. We note that this case was tried almost
five years after the accident. During that time, Mr. Thomas
was seen by numerous physicians, most of them in connection
with his workers' compensation case. The defendants in
this tort case were not parties to the workers'
compensation case. Notably, the defendants marshaled and
presented to the jury much evidence that contradicted many of
the claims made by the plaintiffs. The jury was presented
with a significant amount of evidence which cast doubt on the
credibility and veracity of Mr. Thomas. Since his claims
were, to a large extent, based upon subjective complaints of
pain, it is apparent that the jury did not believe him or the
symptoms he reported to physicians.
plaintiffs argue that the general damage award of $40, 000 to
Mr. Thomas was abusively low and should be raised to $400,
000. This argument is without merit.
assessment of damages in cases of offenses, quasi offenses,
and quasi contracts, much discretion is left to the judge or
jury. La. C.C. art. 2324.1. General damages are intended to
compensate an injured plaintiff for mental or physical pain
or suffering, inconvenience, loss of gratification or
intellectual or physical enjoyment, or other losses of
lifestyle that cannot be measured definitively in terms of
money. Duncan v. Kansas City Southern Ry. Co.,
2000-0066 (La. 10/30/00), 773 So.2d 670; Fuller v. D.L.
Peterson Tr. Co., 50, 699 (La.App. 2 Cir. 6/22/16), 197
So.3d 244, writ denied, 2016-1658 (La. 1/9/17), 208
So.3d 369; Young v. Marsh, 49, 496 (La.App. 2 Cir.
11/19/14), 153 So.3d 1245.
is no mechanical rule for determining general damages. The
facts and circumstances of each case control. Terry v.
Simmons, 51, 200 (La.App. 2 Cir. 2/15/17), 215 So.3d
410. The factors to be considered in assessing quantum of
damages for pain and suffering are severity and duration.
LeBlanc v. Stevenson, 2000-0157 (La. 10/17/00), 770
So.2d 766; Fuller v. D.L. Peterson Tr. Co.,
supra. The nature, relative severity, and extent of
bodily injuries are qualitative factors that must first be
considered by the trier of fact in awarding general damages.
The duration of a plaintiff's injury symptoms and the
duration of treatment are quantitative factors that must also
be taken into account. Since the jury is in the best position
to evaluate witness credibility and see the evidence
firsthand, it is afforded much discretion in independently
assessing the facts and rendering an award. Fuller v.
D.L. Peterson Tr. Co., supra.
assessment of quantum, or the appropriate amount of damages,
by a trial judge or jury is a factual determination entitled
to great deference on review. As such, the role of the
appellate court in reviewing general damages is not to decide
what it considers to be an appropriate award, but rather to
review the exercise of discretion by the trier of fact.
Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.
1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059,
127 L.Ed.2d 379 (1994). Before a trial court's award of
general damages can be questioned, the reviewing court looks
first, not to prior awards, but to the individual
circumstances of the instant case. If there is no abuse of
the trial court's vast discretion, the damage award will
not be disturbed by the reviewing court. This vast discretion
is such that the appellate court should rarely disturb an
award of general damages. Young v. Marsh,
Thomas testified at trial that he dropped out of school in
the eighth or ninth grade and started working in his teens,
holding a variety of jobs. Approximately nine years before this
accident, he had an unrelated workers' compensation claim
against a different employer resulting in surgery for
tendinitis in his elbow. Mrs. Thomas was employed as a nurse,
and, between them, they had five children.
describing the accident at trial, Mr. Thomas said that the
truck pulled away, and he and the forklift rolled out of the
back of the truck and dropped. He heard a bang and then claimed he was
unconscious. After the accident, Mr. Thomas left work alone
and went to the company physician. He returned to work after
the accident and worked for several months in pain because he
could not take pain medication and do his job. He continued
to consult with Dr. Woods during this time. He stopped
working in February 2011, and has not worked since that time.
He was later referred to other physicians.
Thomas eventually had surgery for carpal tunnel syndrome in
both hands. Although he tried to tie this surgery to the
forklift accident, the evidence indicated that it was not
also had physical therapy for his back, which he did not feel
was beneficial. After seeing numerous doctors, Mr. Thomas was
prescribed pain medication, which he claimed made his legs
and feet swell.
Thomas testified that he has been taking pain medication and
muscle relaxers since the accident and these medications
limit his ability to drive. He outlined the numerous
physicians he consulted and said that, at one time, he had to
go several months without pain medication because he did not
have a physician to prescribe it. He was informed he reached
maximum medical improvement in November 2014. He claimed he
had no physical limitations before the accident and now
cannot work at all. Mr. Thomas maintained that he became
withdrawn after the accident and was angry, upset, and
suicidal. He explained to the jury that at one point:
The first two years of the accident, I shut everybody out. I
couldn't do anything but just be there. I didn't
attend - I mean, I didn't attend nothing. I just - like I
was just vanished from the face of the earth.
claimed he can only sleep in a recliner. He cannot take care
of his lawn and takes all day to sweep and mop the house. He
cannot drive long distances and sometimes blacks out.
Thomas opened a Facebook account in 2012 or 2013 and began
posting pictures of various events. The defendants obtained
these documents and introduced over 70 Facebook postings.
These were used extensively in the cross-examination of Mr.
Thomas. The postings showed that numerous out-of-town trips
were being made to concerts, sporting events, amusement
parks, and other activities, while Mr. Thomas claimed to be
incapacitated. Mr. Thomas tried to minimize his participation
in the activities by claiming that he used elevators in the
stadiums to get to his seats. He also claimed it was only after
receiving an ultimatum from his wife that he began going on
the outings and vacations. He stated that his wife does all
the driving because he cannot drive long distances due to his
Thomas was also cross-examined about his income tax returns,
which showed that, for several years, he claimed a nephew as
a dependent and listed him as his son, even though the child
did not live with him. By falsely claiming this child, Mr.
Thomas improperly received the benefits of the "earned
Eugene Ellis of the Monroe Police Department is Mr.
Thomas's cousin. He said that, after the accident, Mr.
Thomas's personality changed and he was withdrawn.
However, he had not seen Mr. Thomas in several years.
Burks is the pastor of the church Mr. Thomas attended at the
time of the accident. He testified that, prior to the
accident, Mr. Thomas was very active in the church, but
stopped attending several months after the accident. Burks
had not personally visited Mr. Thomas since that time.
Thomas, Jr., Mr. Thomas's son, was questioned by the
defendants about a Facebook post he made in December 2010,
commenting on a basketball game he played with his father.
Although the son claimed he made up the game to impress his
girlfriend, the jury may have interpreted his testimony as
another example of Mr. Thomas engaging in activities while
claiming otherwise to doctors and others.
Boyd, Werner's truck driver who was involved in this
accident, testified that on the day of the incident, he
backed his trailer up to the loading dock and then later
pulled away from the dock and parked. He walked to the back
of the trailer and noticed that product was still in the
trailer. He saw Mr. Thomas sitting on his forklift. Mr.
Thomas asked if he knew he was sitting in the trailer when
the truck pulled away. Boyd said that he did not. According
to Boyd, Mr. Thomas then walked out and got into his vehicle
with no visible signs of injury or complaints.
connection with the workers' compensation claim, LUBA
required that Mr. Thomas see Dr. Donald Smith, a
neurosurgeon, for a medical examination. Mr. Thomas claimed
that, on his first visit, Dr. Smith "rollerbladed"
into the waiting room of the office, did a limited
examination, and told Mr. Thomas to return to work. Later, he
was again seen by Dr. Smith. Mr. Thomas said his wife dropped
him off at the door of the office and before she could park
and come back inside, Dr. Smith had completed his
Woods, the first doctor to see Mr. Thomas in connection with
this accident, testified. He is a family practice physician. Mr.
Thomas complained of neck and back pain, as well as pain in
the arms and legs. Dr. Woods noted tenderness and a decreased
range of motion in Mr. Thomas's neck. He did not have
numbness at that time. Dr. Woods initially diagnosed Mr.
Thomas with cervical and lumbar spine strain. He ordered
X-rays, which did not show any fractures. He prescribed
muscle relaxers, anti-inflammatory drugs, and pain relievers.
Mr. Thomas wanted to return to work and Dr. Wood authorized
Woods saw Mr. Thomas on November 8, 2010, four days after the
accident. Mr. Thomas was still complaining of pain. Dr. Woods
saw Mr. Thomas again on November 17, 2010. His neck was
better, but he had lower back pain and limited range of
motion in his back. Dr. Woods gave Mr. Thomas an injection of
steroids in his back. Mr. Thomas again went to Dr. Woods on
November 29, 2010. He had back pain and elevated blood
pressure. On December 1, 2010, MRIs were done on Mr.
Thomas's neck and back. The MRI on the back showed no
herniation or stenosis.
January 6, 2011, Mr. Thomas visited Dr. Woods complaining of
back pain radiating into his left knee and foot. Although he
had symptoms of a herniated disc, this did not show on the
MRI. Mr. Thomas was given another steroid injection.
Thomas saw Dr. Woods on January 27, 2011, complaining of back
pain. Dr. Woods suggested that he see a pain management
specialist. It appears that the referral was initially
blocked by LUBA, but Mr. Thomas was eventually able to see
Dr. Douglas Coleman Brown, an orthopedic surgeon.
Brown testified that he saw Mr. Thomas in February 2011. Dr.
Brown thought that the facet joints in Mr. Thomas's back
took the impact of the fall. He determined that Mr. Thomas
had an impaction injury to the facet joints at the L4-5 and
L5-S1 levels of his spine. Mr. Thomas described a burning
pain in his back with numbness behind his left knee and heel.
He described his pain level as three on a ten-point scale.
Brown injected Novocaine and cortisone into the joints in
four locations on Mr. Thomas's back. The injections gave
him some relief, but LUBA refused to authorize additional
injections. LUBA also declined coverage for injections later
recommended by Dr. Forte, discussed below. This issue was
eventually resolved in favor of Mr. Thomas in Thomas v.
Marsala Beverage Co., supra.
9, 2011, Dr. Brown observed that Mr. Thomas had developed a
bone spur in his back, related to trauma. He noted that Mr.
Thomas had some age-related arthritic changes in his back,
but opined that trauma can accelerate arthritis. Dr. Brown
ordered a functional capacity evaluation ("FCE")
and recommended work hardening and occupational therapies.
Mr. Thomas had dangerously elevated blood pressure during the
FCE and was not able to complete the test. Dr. Brown was not
aware that the test had been terminated.
Brown referred Mr. Thomas to Dr. Marco Ramos, a neurosurgeon.
Dr. Ramos first saw Mr. Thomas in August 2011. He noted that
Mr. Thomas had no history of back pain prior to the accident.
He thought that Mr. Thomas had cervical and lumbosacral
radiculopathy. Mr. Thomas underwent electromyography
("EMG") testing in 2011 and 2013. Neither of these
tests showed any evidence of cervical radiculopathy. Dr.
Ramos prescribed a muscle relaxant, an antidepressant, and
pain medication. Dr. Ramos observed that Mr. Thomas had
carpal tunnel syndrome and vascular pathology in right lower
extremity. He did not think the vascular pathology was
related to Mr. Thomas's injuries, but he did think the
carpal tunnel syndrome was caused by the forklift accident.
Dr. Ramos saw Mr. Thomas in November 2011, he had limited
range of motion with tenderness over the suboccipital and
paravertebral muscle groups. His pain was mostly in his neck.
Dr. Ramos recommended physical therapy, which Mr. Thomas did
not think helped him. He last saw Mr. Thomas in June 2013.
Smith, the neurosurgeon discussed by Mr. Thomas in his
testimony above, examined him in 2011 and 2012, and reviewed
his medical records and imaging studies on behalf of LUBA.
Later, he also reviewed additional medical records sent to
him by the attorneys for the defendants in this case. Mr.
Thomas said his pain level was five on a ten-point scale. He
had carpal tunnel syndrome, but Dr. Smith did not think that
was related to the accident. Regarding Mr. Thomas's back
complaints, Dr. Smith did not see any reason why he could not
return to work without physical restrictions. Dr. Smith was
later presented with Mr. Thomas's FCE by Dr. Green,
showing that Mr. Thomas could perform only light-duty work.
Dr. Smith said his opinion that Mr. Thomas could return to
work without restrictions may have been overstated "at
the level of work."
Curtis Partington, a neuroradiologist, testified by video
deposition. He examines diagnostic imaging of the brain,
spine, and spinal cord and gives independent medical reviews.
He examined two lumbar MRIs and four cervical MRIs done on
Mr. Thomas. The MRIs were done at various times from
2010-2013. He found only age-related changes in Mr.
Thomas's neck and back. Dr. Partington did not find any
diagnostic evidence to support a traumatic injury. He found
no anatomical reason for Mr. Thomas's pain. He stated
that some patients can have pain even when the cause does not
show up on an MRI.
Eric Oberlander, a neurosurgeon, testified by video
deposition. He saw Mr. Thomas in July and August 2013, at the
request of the plaintiffs' attorneys. He performed tests
for nerve root impingement and spinal cord compression, which
were negative. Mr. Thomas had pain on palpation of the lumbar
spine, with limited range of motion in his shoulder, but had
a normal gait and normal MRIs. Dr. Oberlander also
acknowledged that some patients can have pain, even though
their MRIs are normal. He stated that, if Mr. Thomas had no
symptoms before the accident and had pain after the accident,
he was probably injured in the accident.
Benjamin Kidder, a neurologist, saw Mr. Thomas in 2013, on a
consult from Dr. Oberlander. Mr. Thomas complained of back
pain, numbness, tingling, leg pain, and blurred vision. Dr.
Kidder observed that Mr. Thomas appeared to be in some pain
when he walked. Dr. Kidder found no evidence of disc
herniation, nerve root compression, or spinal stenosis.
Although he could not find an anatomical reason for Mr.
Thomas's pain, Dr. Kidder did not dispute that he was
experiencing pain. Dr. Kidder prescribed a muscle relaxer and
medication for nerve pain. Mr. Thomas found that the nerve
pain medication actually increased his pain. He contacted Dr.
Kidder about stopping the medication. Because medications
were not helping Mr. Thomas, Dr. Kidder suggested that he see
a pain management physician.
Vincent Forte, an expert in interventional pain management,
began treating Mr. Thomas in January 2014, following referral
by his attorneys. He complained primarily of neck pain
radiating into his shoulders. Mr. Thomas reported headaches
which interfered with his vision, along with swelling and
numbness in his hands and arms. Mr. Thomas had undergone
carpal tunnel surgery on both hands and several rounds of
physical therapy with no reduction in pain.
Thomas reported pain radiating into his left leg with muscle
spasms and limited range of motion in the lumbar region. Dr.
Forte said this was indicative of underlying pathology in the
lower spine. Mr. Thomas had tenderness in the bilateral upper
trapezius and facet joints with no trigger points identified.
He had limited range of motion in his back and neck. His
straight-leg raise test was positive for pain radiating into
his left leg. He reported his pain level to be four on a
ten-point scale. Dr. Forte saw Mr. Thomas on 17 or 18
occasions and his pain level was consistently between two and
four on a ten-point scale.
Forte recommended lumbar medial branch block injections. A
series of injections was given on the right side of Mr.
Thomas's spine in January 2014. Mr. Thomas reported a 50%
reduction in his pain for a short time. A series of
injections was administered on the left side of his spine
resulting in a temporary 25% reduction in pain. Dr. Forte