Appealed from the Nineteenth Judicial District Court In and
for the Parish of East Baton Rouge • State of Louisiana
Docket No. 657, 337 • Sec. 25 The Honorable Wilson
Fields, Judge Presiding
M. Emonet Kelly E. Balfour Mark K. White Baton Rouge,
Louisiana ATTORNEYS FOR APPELLANT PLAINTIFF- Brandi Waters
Gregory P. Aycock Stephen F. Butterfield Brent E. Kinchen
Baton Rouge, Louisiana ATTORNEY FOR APPELLEES DEFENDANTS-
Susan Hebert and Shelter Mutual Insurance Company
Before: McClendon, Welch, and Holdridge, JJ.
plaintiff, Brandi Waters, challenges a jury verdict awarding
her damages in the total amount of $13, 461.86 for injuries
that she sustained in an automobile accident. The defendants,
Susan Hebert and her automobile liability insurer, Shelter
Mutual Insurance Company ("Shelter"), have answered
the appeal, seeking a reduction in the amount of expert
witness fees and costs assessed against them. We affirm the
judgment in accordance with the jury verdict and deny the
answer to appeal in compliance with Uniform Rules-Courts of
Appeal, Rule 2-16.1(B).
April 24, 2017, the plaintiff filed a petition for damages
naming Ms. Hebert and Shelter as defendants. The plaintiff
alleged that on September 29, 2016, she was rear-ended by Ms.
Hebert and that Ms. Hebert was liable to her for her injuries
and damages. The defendants filed an answer generally denying
the plaintiffs claims; however, the defendants subsequently
admitted liability for the accident.
7, 8, and 9, 2018, a jury trial was held on the issues of
medical causation and damages. Based on the evidence and
after deliberation on May 9, 2018, the jury returned a
verdict in the plaintiffs favor awarding her compensatory
damages in the total amount of $13, 461.86, i.e. $8,
461.86 in past medical expenses and $5, 000.00 in general
damages for past pain and suffering. The jury declined to
award the plaintiff any damages for future medical expenses,
future pain and suffering, past and future loss of enjoyment
of life, and mental anguish. On June 13, 2018, the trial
court signed a judgment in accordance with the jury verdict.
Thereafter, the plaintiff filed a motion to tax costs, and a
motion for judgment notwithstanding the verdict
("JNOV"), for a new trial, and/or to nullify the
jury verdict. Pursuant to a judgment signed by the trial
court on October 22, 2018, the trial court denied the
plaintiffs motions for JNOV, new trial, and to nullify the
jury verdict, and granted the plaintiffs motion to tax costs,
assessing the defendants with costs and expert witness fees
in the total amount of $20, 113.41.
plaintiff has appealed the judgment rendered in accordance
with the jury verdict, essentially seeking an increase in the
compensatory damages awarded by the jury. The defendants have
answered the appeal, essentially seeking a reduction in the
amount of expert witness fees and costs that it was assessed
pursuant to the October 22, 2018 judgment.
damages are classified as either special or general.
McGee v. A C And S, Inc., 2005-1036 (La. 7/10/06),
933 So.2d 770, 774. On appeal, the applicable standard of
review depends on the classification of the particular item
of damages at issue. "Special damages" are those
which have a ready market value such that the amount of
damages theoretically may be determined with relative
certainty, including medical expenses and lost wages.
Id. Future medical expenses are an item of special
damages. Id.; see also Guillory v. Insurance Co.
of North America, 96-1084 (La. 4/8/97), 692 So.2d 1029,
1031-1032. The proper standard for determining whether a
plaintiff is entitled to future medical expenses is proof by
a preponderance of the evidence the future medical expense
will be medically necessary. Menard v. Lafayette Ins.
Co., 2009-1869 (La. 3/16/10), 31 So.3d 996, 1006.
However, an award for future medical expenses is, in great
measure, highly speculative, not susceptible to calculation
with mathematical certainty, and generally turns on questions
of credibility and inferences. Id. A jury's
decision regarding special damages is subject to the manifest
error standard of review, which only allows an appellate
court to adjust a special damage award where: (1) there is
not reasonable factual basis for the jury's decision, and
(2) the decision is clearly wrong. See
Guillory, 692 So.2d at 1032.
evidenced by the verdict, the jury made a factual finding
that the plaintiff was entitled to an award for past medical
expenses, but that she was not entitled to an award for
future medical expenses. The plaintiffs claim for future
medical expenses was based on Dr. Kevin McCarthy's
testimony that the plaintiff was a candidate for several
treatment options. However, the testimony of Dr. McCarthy,
Dr. Keith Mack, and the plaintiff also established that the
plaintiff had not followed through with treatment recommended
by either Dr. Keith Mack or Dr. McCarthy. From this, the jury
could have reasonably concluded that while the plaintiff may
have sustained some injuries immediately after the accident,
by the time of trial, those injuries had either subsided
and/or there were no medically necessary future medical
expenses that she would incur. Based on our review of the
record, we find there was a reasonable basis to support the
jury's conclusion in this regard. Thus, we find no
manifest error in the jury's decision not to award the
plaintiff future medical expenses.
general damages, we note that general damages are those which
may not be fixed with pecuniary exactitude; instead, they
involve mental or physical pain or suffering, inconvenience,
the loss of gratification or physical enjoyment, or other
losses of life or life-style which cannot be measured
definitely in monetary terms. Duncan v. Kansas City
Southern Railway Co, 2000-0066 (La. 10/30/00), 773 So.2d
670, 682; see also McGee,
933 So.2d at 774. Vast discretion is accorded the trier of
fact in fixing general damage awards. Id. This vast
discretion is such that an appellate court should rarely
disturb an award of general damages. Id., citing
Youn v. Maritime Overseas Corp., 623 So.2d 1257,
1261 (La. 1993). Thus, the role of the appellate court in
reviewing general damage awards 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.
Duncan, 773 So.2d at 682;
Youn, 623 So.2d at 1260. Reasonable
persons frequently disagree about the measure of general
damages in a particular case. Youn,
623 So.2d at 1261. It is only when the award is, in either
direction, beyond that which a reasonable trier of fact could
assess for the effects of the particular injury to the
particular plaintiff under the particular circumstances that
the appellate court should increase or reduce the award.
the initial inquiry, in reviewing an award of general
damages, is whether the trier of fact abused its discretion
in assessing the amount of damages. Cone v. National
Emergency Services Inc., 99-0934 (La. 10/29/99), 747
So.2d 1085, 1089. Only after a determination that the trier
of fact has abused its "much discretion" is resort
to prior awards appropriate, and then only to the extent of
lowering it (or raising it) to the highest or (lowest) point
which is reasonably within that discretion. Coco v.
Winston Industries, Inc., 341 So.2d 332, 335 (La. 1976).
the plaintiffs claim on appeal that the jury's award of
general damages ($5, 000 for past pain and suffering) was
insufficient and that she should be awarded an increase in
those damages for future pain and suffering, past and future
loss of enjoyment of life, and mental anguish, based on our
review of the record, particularly the testimony of the
plaintiff, we cannot say that the jury's award was under
that which a reasonable trier of fact could assess for the
effects of the particular injury to the plaintiff under the
particular circumstances. Based on the evidence, the jury
could have reasonably concluded that while the plaintiff may
have sustained some injuries and been in some pain
immediately after the accident, that her injuries did not
affect her lifestyle or inflict any ...