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Thomas v. Boyd

Court of Appeals of Louisiana, Second Circuit

November 15, 2017


         Appealed 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 Appellants

          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 Company

          Before WILLIAMS, GARRETT, and STONE, JJ.

          GARRETT, J.

         The 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.


         Mr. 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.

         Mr. 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 him.[1]

         In June 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 trial.

         While 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. Thomas's treatment.

         This case was tried over numerous days in August 2015.[2] Both 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.

         On 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.

         The 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 the JNOV.[3]

         On 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.


         The 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.

         Legal Principles

         In the 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.

         There 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.

         The 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, supra.


         Mr. 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.[4] 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.

         In 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.[5] 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.

         Mr. 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 related.[6] He 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.

         Mr. 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.

         He 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.

         Mr. 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.[7] 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 medication.

         Mr. 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 income credit."

         Captain 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.

         Earl K. 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.

         James 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.

         Bryan 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.

         In 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 exam.[8]

         Dr. Woods, the first doctor to see Mr. Thomas in connection with this accident, testified.[9] 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 light-duty work.

         Dr. 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.

         On 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.

         Mr. 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.

         Dr. 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.

         Dr. 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.[10]

         On May 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.[11]

         Dr. 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.

         When 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.

         Dr. 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."

         Dr. 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.

         Dr. 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.[12]

         Dr. 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.

         Dr. 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.

         Mr. 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.

         Dr. 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 ...

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