In addition, neither party provides the Court with a single case involving an unoperated possible cervical herniation to support a jurisdictional minimum of $75,000. See e.g., Sly v. Morris, 750 So.2d 1163 (La.App. 5th Cir. 2000) (general damage award for herniation of cervical disc raised from $2,800 to $10,000). Based on the record and the law, the Court finds that the defendant has not shown that the amount in controversy exceeds $75,000 at this time.
Moreover, after analyzing the facts and circumstances peculiar to this particular case and plaintiff, we conclude that the trial court abused its vast discretion in its award of $9,000.00 for general damages. After determining that an award for general damages is an abuse of the trial court's discretion, this Court can review prior awards to determine the highest or lowest point, which is reasonably within that discretion. Herzog v. Fabacher, 01-432 (La.App. 5 Cir. 10/17/01), 800 So.2d 997, 1000 ( citing Sly v. Morris, 99-884 (La.App. 5 Cir. 1/25/00), 750 So.2d 1163). Our review of the jurisprudence reveals that awards for cervical spine injuries requiring treatment with injections are between $30,000.00 and $45,000.00. See Moody v. Cummings, 09-1233 (La.App.
After an analysis of the facts and circumstances peculiar to the particular case and plaintiff, an appellate court may conclude that the award is inadequate. Only then is a resort to prior awards appropriate, and then for the purpose of determining the highest or lowest point which is reasonably within that discretion.Sly v. Morris, 99-884 (La.App. 5th Cir. 1/15/00), 750 So.2d 1163, citing Theriot v. Allstate Ins. Co., 625 So.2d 1337 (La. 1993) and Bostwick v. M.A.P.P. Industries, Inc., 97-791 (La.App. 5th Cir. 12/30/97), 707 So.2d 441. In the present case, Herzog testified to suffering extreme pain immediately after the accident, along with his conscious fear that he would be killed or seriously injured.
A review of cases in which similar neck and back injuries were at issue lead us to the conclusion that an award of $65,000.00 is the lowest award that was reasonably within the jury's discretion. See Sly v. Morris, 99-884 (La.App. 5 Cir. 1/25/00); 750 So.2d 1163; Baker v. Freeman, 97-604 (La.App. 3 Cir. 10/29/97); 702 So.2d 1140, writ denied, 97-2984 (La. 12/10/97); 704 So.2d 1176. The jury awarded $23,000.00 in past lost income and earning capacity.