Opinion
NUMBER 2012 CA 0278
11-14-2012
MICHAEL J. BELANGER, INDIVIDUALLY AND ON BEHALF OF HIS MINOR CHILDREN, ANNALISE E. BELANGER AND ASHLAN L. BELANGER v. NATALIE N. STEPHEN AND GEICO GENERAL INSURANCE COMPANY
Spencer H. Calahan Baton Rouge, LA Attorney for Appellees Plaintiffs-Michael J. Belanger, Individually and on behalf of his minor children, Annalise E. Belanger and Ashlan L. Belanger Stephen Dale Cronin Baton Rouge, LA and W. Paul Andersson Louis P. Bonnafons Raymond R. Egan New Orleans, LA Attorneys for Appellants Defendants-Natalie N. Stephen and GEICO General Insurance Company
NOT DESIGNATED FOR PUBLICATION
Appealed from the
19th Judicial District Court
In and for the Parish of East Baton Rouge, Louisiana
Trial Court Number 578,513
Honorable Janice Clark, Judge
Spencer H. Calahan
Baton Rouge, LA
Attorney for Appellees
Plaintiffs-Michael J. Belanger,
Individually and on behalf of
his minor children, Annalise E.
Belanger and Ashlan L.
Belanger
Stephen Dale Cronin
Baton Rouge, LA
and
W. Paul Andersson
Louis P. Bonnafons
Raymond R. Egan
New Orleans, LA
Attorneys for Appellants
Defendants-Natalie N. Stephen
and GEICO General Insurance
Company
BEFORE: PARRO, HUGHES, AND WELCH, JJ.
WELCH , J.
In this action for damages arising out of a motor vehicle accident, the defendants, Natalie N. Stephen, and her automobile liability insurer, GEICO General Insurance Company ("GEICO"), appeal a judgment rendered in favor of the plaintiff, Michael J. Belanger, awarding him damages for his injuries. For reasons that follow, we affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL HISTORY
On December 7, 2007, Mr. Belanger was operating his vehicle northbound in the right lane of Lee Drive near the intersection and traffic light at Louisiana Highway 42 in Baton Rouge, Louisiana. At approximately the same time, Ms. Stephen was operating her vehicle westbound on Louisiana Highway 42 near the intersection and traffic light at Lee Drive. As Mr. Belanger proceeded through the intersection, Ms. Stephen failed to stop at the red light and collided with Mr. Belanger's vehicle. Thereafter, on June 24, 2008, Mr. Belanger commenced this action to recover damages for injuries he sustained as a result of the accident and named as defendants Ms. Stephen and GEICO.
Two of Mr. Belanger's children were guest passengers in his vehicle. According to the record, their claims were settled and dismissed prior to trial.
Mr. Belanger subsequently filed an amended petition adding his uninsured/underinsured motorist insurer as a defendant, but that defendant was subsequently dismissed.
Apparently, the defendants did not dispute that Ms. Stephen caused the accident, but disputed whether the accident caused Mr. Belanger's injuries, specifically, the injury to his lower back (an L3-L4 pars fracture). Following a two-day jury trial, the jury returned a verdict in favor of Mr. Belanger, awarding him damages in the total amount of $450,000. Specifically, the jury awarded him damages as follows: past pain and suffering—$ 100,000; mental anguish~$50,000; past medical expenses—$ 15,000; future medical expenses--$95,000; future pain and suffering~$ 150,000; loss of enjoyment of life—$10,000; and future lost wages--$30,000. A judgment in accordance with the jury verdict was signed on April 26, 2011. The defendants filed motions for judgment notwithstanding the verdict ("JNOV") and new trial, which the trial court denied by judgment signed on November 17, 2011. The defendants now appeal.
nIn disputing that the accident did not cause the plaintiff's lower back injury, the defendants relied on the opinion of Dr. Curtis Partington, a neuroradiologist, and on a medical record from 1999, wherein the plaintiff had complained to his family doctor of lower back pain from a previous football injury, which was not disclosed by the plaintiff when he gave his history to his treating physician for the accident, Dr. Kelly Scrantz, a neurosurgeon.
On appeal, the defendants raise fifteen assignments of error, which raise four main issues for our review: (1) an evidentiary ruling of the trial court with regard to hearsay testimony, (2) the jury instructions given by the trial court, (3) the jury's award of damages, and (4) the denial of the defendants' motions for directed verdict, JNOV, and new trial.
LAW AND DISCUSSION
Hearsay Evidence
The defendants first contend that the trial court committed reversible error in allowing (over the defendants' objection) Mr. Belanger to give hearsay testimony that he had been told by his medical provider that his insurer had denied authorization for a recommended surgical procedure, because there was no evidence offered to corroborate this testimony. The defendants argued that, because one of the issues at trial was whether the plaintiff would undergo the recommended surgical treatment, and since plaintiff's hearsay testimony was the only evidence that the plaintiff had taken an affirmative step toward having the surgery, the testimony might have contributed to the jury's verdict, particularly, its verdict on future damages.
Hearsay is "a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted." La. C.E. art. 801(C). Hearsay is generally not admissible, unless it falls under one of the statutory exceptions set forth in La. C.E. arts. 803 or 804. See La.C.E. art. 802.
Initially, the standard of review for evidentiary rulings of a trial court is abuse of discretion; the trial court's ruling will not be disturbed unless it is clearly erroneous. See Devall v. Baton Rouge Fire Department, 2007-0156 (La. App. 1st Cir. 11/2/07), 979 So.2d 500, 503; see also Brandt v. Engle, 2000-3416 (La. 6/29/01), 791 So.2d 614, 621. If the trial court has abused its discretion in its evidentiary rulings, such that the jury verdict is tainted by the errors, the appellate court should conduct a de novo review. See McLean v. Hunter, 495 So.2d 1298, 1304 (La. 1986). Errors are prejudicial when they materially affect the outcome of the trial and deprive a party of substantial rights. Evans v. Lungrin, 97-0541, (La. 2/6/98), 708 So.2d 731, 735. Thus, a de novo review should not be undertaken for every evidentiary error, but should be limited to errors that interdict the factfinding process. Wingfield v. State, ex rel. Department of Transportation and Development, 2001-2668, (La. App. 1st Cir. 11/8/02), 835 So.2d 785, 799, writs denied, 2003-0313, 2003-0339, 2003-0349 (La. 5/30/03), 845 So.2d 1059-60, cert. denied, 540 U.S. 950, 124 S.Ct 419, 157 L.Ed.2d 282 (2003).
The testimony of Mr. Belanger at issue was as follows:
[By Plaintiff's attorney]:
Q. What did Dr. Scrantz recommend for you?
A. Dr. Scrantz—because it is a pars fracture, I didn't have many options. His recommendation was surgery. He told me that is the only thing that would correct it, but it is not a hundred percent, and that I should wait until, you know, I just can't take it any longer because it is such a difficult procedure to recover from. So I actually did schedule the procedure, but we couldn't go forward with it.
Q. Now, some time ago I believe the records indicated that you actually did schedule that surgery at one time. Did you have the surgery?
A. I did not.
[Defendants' attorney]: Objection, questioning about facts that are not into evidence.By [Plaintiff's attorney]:
[Plaintiff's attorney]: The records are in the evidence, your honor.
[Defendants' attorney]: There is no evidence of a scheduling of the surgery in the records, your honor.
The Court: The court is going to overrule the objection.
Q. Did you ever schedule the surgery?
A. Yes, I did.
Q. Did you have the surgery?
A. I did not.
Q. Why not?
A. I received a call from the Neuromedical -
[Defendant's attorney]: Objection, your honor, hearsay.
The Court: Well, let's just—let's just see if he can answer first, and the court has the option of striking it. What is the reason why you did not [schedule] the surgery or have the surgery?
* * *
A. Sure. The nurse called to me [sic] from the Neuromedical Center to schedule—
The Court: Don't [say] what she said. Just tell me what your impression was of the conversation.
* * *
A. My insurance denied the claim.
The Court: All right.
Based on our review of the record, we cannot say that the trial court erred or otherwise abused its discretion in allowing this testimony. The testimony allowed by the trial court does not meet the definition of hearsay, as provided in La. C.E. art. 801(C), because the statement at issue was not offered to prove the truth of the matter asserted, i.e., that the plaintiff's insurer actually denied the claim for the surgical procedure. Rather, it appears that the testimony was offered to explain why the plaintiff had not had the surgical procedure recommended by his treating physician, Dr. Kelly Scrantz, a neurosurgeon.
Nonetheless, even if this testimony can be considered hearsay and its admission erroneous, based on our review of the record, we do not find that the jury verdict was tainted by the error. During the trial, the jury was presented with the expert opinion testimony of Dr. Scrantz, which supported a factual finding that Mr. Belanger sustained a lower back injury from the accident, that Mr. Belanger's only option for improving his condition was surgical intervention, that Mr. Belanger would need that surgical treatment in the future, that Mr. Belanger intended to undergo that treatment, that the cost of that treatment was $95,000 (the amount awarded by the jury for future medical expenses), and that Mr. Belanger's surgical recovery time during which he would not be able to work was approximately two to three months. Given this evidence, we do not find that Mr. Belanger's brief testimony explaining why he had not yet undergone the recommended surgical procedure materially affected the outcome of the trial and deprived the defendants of substantial rights. Therefore, we find no reversible error in this evidentiary ruling of the trial court.
Even if the testimony at issue is considered hearsay, it appears to be a statement for purposes of medical treatment and medical diagnosis, and thus an exception to the hearsay rule, as set forth in La. C.E. art. 803(4).
Jury Instructions
Next, the defendants complain about three jury instructions given by the trial court. Specifically, the defendants contend that the trial court erroneously instructed the jury as to: (1) the "value" of the plaintiff s case, i.e., that it was worth more than $50,000; (2) the weight of a treating physician's testimony or opinion; and (3) the Housley v. Cerise, 579 So.2d 973 (La. 1991), presumption of causation.
The presumption of causation set forth in Housley, 579 So.2d at 980 provides as follows:
[a] claimant's disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.
In a jury trial, the trial court is obligated to give instructions that properly reflect the law applicable in light of the pleadings and facts in each case. Hymel v. HMO of Louisiana, Inc., 2006-0042 (La. App. 1st Cir. 11/15/06), 951 So.2d 187, 198, writ denied, 2006-2938 (La. 2/16/07), 949 So.2d 425. Adequate jury instructions are those instructions that fairly and reasonably point out the issues presented by the pleadings and evidence and that provide correct principles of law for the jury to apply to those issues. Id. Whether or not to include a requested jury instruction is a matter within the wide discretion of the trial court and will not be overturned on appeal absent an abuse of that discretion. Gardner v. Griffin, 970379 (La. App. 1st Cir. 4/8/98), 712 So.2d 583, 586. When assessing an allegedly erroneous jury instruction, it is the duty of the reviewing court to evaluate such impropriety in light of the entire jury charge to determine if it adequately provides the correct principles of law as applied to the issues and whether they adequately guided the jury in its deliberation. Hymel, 951 So.2d at 198. An appellate court must exercise great restraint before overturning a jury verdict on the suggestion that the jury instructions were so erroneous as to be prejudicial. Id.
The first jury instruction about which the defendants complain provided as follows:
...[L]et the court clarify the law with respect to the amount in controversy. It must exceed $50,000 or you are not entitled to have trial by jury in a civil case. ... Please be instructed that we are in this
court because these parties are entitled to submit their dispute to the jury.
The defendants argue that this statement by the trial court operated as an admission by the defendants that the plaintiff's claims were worth more than $50,000 and was tantamount to an instruction that if the jury were going to award damages to the plaintiff, it could not award anything less than $50,000, and thus, the trial court's instruction was an incorrect statement of the law. We disagree.
First, the record before us does not reveal that the defendants ever objected to the trial court's jury instruction on this issue. The failure to make a contemporaneous objection to the jury instructions or the jury verdict form precludes the issue from being raised for the first time on appeal. See La. C.C.P. art. 1793(C). Nonetheless, the trial court's instruction appears to point out that the amount in controversy between the parties had to exceed $50,000 in order for there to be a jury trial in a civil case. While we question the necessity of such an instruction to the jury, it was not an incorrect statement of the law, but rather, a paraphrasing of La. C.C.P. art. 1732(1), which provides that a trial by jury shall not be available in a "suit where the amount of no individual petitioner's cause of action exceeds fifty thousand dollars exclusive of interest and costs." Accordingly, we find no reversible error in this jury instruction.
The next jury instruction complained of by the defendants provided as follows:
In considering the testimony of witnesses which is in evidence, to determine the credibility, you must bear in mind that a witness is presumed to speak the truth about facts within his [or] her knowledge. However, this presumption of truthfulness may be overcome in various ways such as evidence which contradicts the testimony or behavior or demeanor of the witness as he or she testifies. Also note that witnesses are expected to testify only about facts which are within their knowledge. In other words, the law ordinarily does not permit a witness to give opinions except for expert witnesses. In this case, this court has recognized physicians as expert witnesses. You should consider the opinions of physicians and give them the weight that you think is appropriate. Testimony of the treating physician is accorded
greater weight than that of a physician [who] merely examines a patient once or twice or medical records.
The defendants contend that it was error for the trial court to give the instruction with regard to the treating physician's testimony, because of the allegedly incomplete history provided to the treating physician, Dr. Scrantz, by Mr. Belanger. Dr. Scrantz, upon whose testimony the plaintiff was relying to establish causation, testified that Mr. Belanger denied any previous back injury, back trouble, neck injury, and neck trouble. Dr. Scrantz also testified that he disagreed with the defendants' expert on causation, Dr. Curtis Partington, a neuroradiologist, because he had a "huge benefit over [Dr. Partington]. I can look at the films ... [a]nd then I also have the benefit of getting the history from the patient." However, apparently Mr. Belanger presented to his family doctor in 1999 with complaints of chronic low back pain stemming from a football injury. Since Mr. Belanger did not tell Dr. Scrantz that he suffered from back pain in 1999 and since Dr. Scrantz disagreed with Dr. Partington's opinion on causation because Dr. Scrantz had the benefit of the plaintiff's history, the defendants argue that this instruction was erroneous. We disagree.
Again, the record before us does not contain an objection to this instruction by the defendants. The failure to make a contemporaneous objection to the jury instructions or the jury verdict form precludes the issue from being raised for the first time on appeal. See La. C.C.P. art. 1793(C). Nonetheless, while it appears that Mr. Belanger did not disclose his prior back pain to Dr. Scrantz during his initial consultation, Mr. Belanger explained during his testimony that he did not tell Dr. Scrantz about those problems because they had been resolved long before the accident in 2007. Thus, the issue facing the jury was a credibility determination, as well as a weighing of the expert medical testimony. Based on our review of the instructions, we find that the trial court adequately and completely instructed the jury as to the law regarding the evaluation of credibility of expert medical witnesses. Accordingly, we find no reversible error in the trial court's inclusion of this instruction to the jury.
The last jury instruction that the defendants complain about was the inclusion of the instruction regarding the causation presumption set forth in Housley, 579 So.2d at 980. The instruction provided by the trial court was as follows:
Tests will determine in a cause or [sic] relationship between an accident and subsequent injury that you may consider to [sic] whether plaintiff has proved through medical [or] lay testimony that it is more probable than not that the injuries were caused by the accident. The plaintiff['s] disabling condition or injury is presumed to have resulted from an accident if before the accident the injured person was in good health but commencing with the accident symptoms of the injury appear and continuously manifest themselves afterward providing that the evidence—the medical evidence shows there's a reasonable possibility of cause or connection between the accident and injury and to rebut the presumption], the defendant must show some particular incident could have cause[d] the disabling condition in question.
According to the testimony of Mr. Belanger, he was in good health before the accident. He testified that immediately after the accident, his back (and neck) began hurting and he went to Lake After Hours. According to the medical records at Lake After Hours, Mr. Belanger presented with complaints of back pain. Mr. Belanger testified that his primary care physician recommended physical therapy. Eventually, Mr. Belanger underwent an MRI, and he received epidural injections at the Spine Clinic of Baton Rouge. He also had to wear a brace on his back. After additional X-rays were taken, he was eventually referred to Dr. Scrantz. According to the testimony of Dr. Scrantz, Mr. Belanger's lower back pain was the result of a pars fracture at the L3-L4 level of his spine, and Mr. Belanger's only option was to have surgery to correct the condition. Additionally, Dr. Scrantz testified that it was more likely than not that the accident was the cause of the pars fracture, and further that even if the pars fracture was already there (as opined by Dr. Partington), the accident made the pars fracture symptomatic, i.e., caused his lower back pain. Thus, according to the testimony of the plaintiff and Dr. Scrantz, the plaintiff was in good health before the accident; subsequent to the accident, Mr. Belanger complained of lower back pain and that pain continuously manifested itself afterwards; and Mr. Belanger has a pars fracture in his spine and there is a reasonable possibility of causation between the accident and Mr. Belanger's pars fracture and lower back pain. Accordingly, we find no reversible error in the trial court's inclusion of the Housley presumption of causation in the jury instructions.
Therefore, after reviewing the jury instructions as a whole, we find that they fairly and reasonably pointed out the issues presented by both the pleadings and the evidence, and accurately reflected the applicable law, and therefore, we find no error in the trial court's jury instructions.
Damages
Next, the defendants contend that the jury abused its discretion in its award of general damages in the amount of $310,000 to Mr. Belanger. Specifically, the jury awarded Mr. Belanger the following general damages:
General damages are those which may not be fixed with any degree of pecuniary exactitude but which instead, involve mental or physical pain or suffering, inconvenience, the loss of gratification or intellectual or physical enjoyment, or other losses of life or lifestyle, which cannot really be measured definitively in terms of money. McGee v. A C And S, Inc., 2005-1036 (La. 7/10/06), 933 So.2d 770, 774.
Past Pain & Suffering $ 100,000
Mental Anguish $50,000
Future Pain & Suffering $ 150,000
Loss of Enjoyment of Life $10,000
Vast discretion is accorded the trier of fact in fixing general damage awards. La. C.C. art. 2324.1; Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La. 1993), cert, denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). This vast discretion is such that an appellate court should rarely disturb an award of general damages. Youn, 623 So.2d at 1261. 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. Id. at 1260. As our supreme court explained in Youn,
Reasonable persons frequently disagree about the measure of general damages in a particular case. 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.Id. at 1261.
Therefore, the initial inquiry, in reviewing an award of general damages, is whether the trier of fact abused its vast discretion in assessing the amount of damages for the particular injuries and their effects under the particular circumstances on the particular injured person. Youn, 623 So.2d at 1260; Reck v. Stephens, 373 So.2d 498, 500-01 (La. 1979). Only after a determination that the trier of fact has abused its much discretion is a resort to prior awards appropriate and then only for the purpose of determining the highest or lowest point which is reasonably within that discretion. Youn, 623 So.2d at 1260; Coco v. Winston Industries, Inc., 341 So.2d 332 (La. 1976).
According to the evidence in this case, after the accident, Mr. Belanger's back and neck began hurting, and he was eventually diagnosed with a pars fracture in his spine, which Dr. Scrantz related to the accident. Mr. Belanger stated that his pain since that time has been continuous and that he has undergone physical therapy, an MRI, a spinal epidural injection, and X-rays. Eventually, Mr. Belanger will have to undergo a painful surgical procedure with a very difficult and uncomfortable recovery period (or, as Dr. Scrantz explained, it would be pain "worse than childbirth").
Mr. Belanger testified that he has three active children, and although he can throw the ball to his children, he cannot do so consistently and will "pay for it afterwards." He also testified that he was not able to regularly watch his children's ball games from the sideline and has not been able to participate in some activities with his children, such as a 5K run that his children wanted to do with him. Mr. Belanger testified that he has been able to go fishing, on family vacations, and to LSU football games. Given all of the evidence in the record, we cannot say that the jury abused its vast discretion in its award of general damages to the plaintiff.
The defendants also contend that the jury abused its discretion in its award of special damages in the amount of $140,000. Specifically, the jury awarded Mr. Belanger the following special damages:
Special damages are those which have a ready market value, such that the amount may theoretically be determined with relative certainty, such as medical expenses and lost wages. McGee, 933 So.2d at 774.
--------
Past Medical Expenses $ 15,000
Future Medical Expenses $95,000
Future Lost Wages $30,000
With regard to past medical expenses, the defendants contend that the jury should not have awarded past medical expenses, because there was no reliable evidence that the treatment received was the result of an injury caused by the accident. The jury apparently concluded, after weighing the evidence and making the necessary credibility determinations, that Mr. Belanger's lower back injury was caused by the accident. The medical records offered into evidence by Mr. Belanger established that his past medical expenses relating to the treatment of his lower back injury following the accident totaled $15,219.32. Thus, we do not find that the jury's award of $15,000 was an abuse of discretion.
Future medical expenses must be established with some degree of certainty. Grayson v. R.B. Ammon & Assoc., Inc., 99-2597 (La. App. 1st Cir. 11/3/00), 778 So.2d 1, 23, writs denied, 2000-3270, 2000-3311 (La. 1/26/01), 782 So.2d 1026- 1027. However, an award for future medical expenses is by nature somewhat speculative. Id. An award for future medical expenses is justified if there is medical testimony that they are indicated and setting out their probable cost. See Brumfield v. Guilmino, 93-0366 (La. App. 1st Cir. 3/11/94), 633 So.2d 903, 908, writ denied, 94-0806 (La. 5/6/94), 637 So.2d 1056. In such a case, the court should award all future medical expenses which the medical evidence establishes that the plaintiff, more probably than not, will be required to incur. See Stiles v. K Mart Corp., 597 So.2d 1012, 1013 (La. 1992). An appellate court should not set aside an award for future medical expenses absent an abuse of the trier of fact's discretion. See Brumfield, 633 So.2d at 909.
In this case, Dr. Scrantz testified that surgery was Mr. Belanger's only option for correcting his condition and that his injury would not get better without surgery. Mr. Belanger testified that he intends to undergo the recommended surgery and was waiting until he could no longer tolerate the pain. The medical records in evidence, along with the testimony of Dr. Scrantz and Mr. Belanger, established that the cost of the surgical procedure was approximately $95,000. For this reason, the jury's award of that exact amount was not an abuse of discretion.
With regard to lost wages, Dr. Scrantz testified that Mr. Belanger would be unable to work for approximately two to three months. Mr. Belanger testified that he worked for Advance Biohealing and that he sold skin graphs for diabetic foot ulcers. He explained that he must call on his customers in order to make the sales, which he could not do while recovering from surgery, and that his sales commissions average $3,000 to $3,300 per week. Given that there are approximately four weeks in a month, then the wages Mr. Belanger would lose during the time that he has the surgery and is recovering would range from $24,000 ($3,000 for 8 weeks) to $39,600 ($3,300 for 12 weeks). Accordingly, the jury's award of $30,000 in lost wages to Mr. Belanger was not an abuse of discretion.
Therefore, given all of the evidence in the record, we cannot say that the jury abused its vast discretion in its award of special damages to the plaintiff.
Directed Verdict, JNOV, and New Trial
Lastly, the defendants contend on appeal, that the trial court erred in failing to grant its motions for directed verdict, JNOV, and new trial. In ruling on a motion for a directed verdict under La. C.C.P. art. 1810 or for JNOV under La. C.C.P. art. 1811, the trial court employs the following legal standard: whether "after considering the evidence in the light most favorable to the party opposed to the motion, the trial court finds that it points so strongly and overwhelmingly in favor of the moving party that reasonable minds could not arrive at a contrary verdict on that issue." Hammons v. St. Paul, 2012-0346, La. App. 4th Cir. 9/26/12), ___ So.3d ___, ___. Thus, a trial court may only grant a directed verdict or a JNOV when the evidence overwhelmingly points to such a conclusion. Id. If there is substantial evidence opposed to the motion of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion must be denied. Petitto v. McMichael, 588 So.2d 1144, 1147 (La. App. 1st Cir. 1991), writ denied, 590 So.2d 1201 (La. 1992); Barnes v. Thames, 578 So.2d 1155, 1169 (La. App. 1st Cir.), writs denied. 577 So.2d 1009 (La. 1991). Further, a new trial should be granted, upon contradictory motion of a party, if the verdict or judgment appears contrary to the law and evidence. La. C.C.P. art. 1972(1). A trial court also has discretionary power to grant a new trial. See La. C.C.P. art. 1973.
The defendants contend that because of the inaccurate history provided to Dr. Scrantz by the plaintiff, there was no reliable medical opinion testimony regarding causation of the plaintiff's lower back complaints or for the treatment/recommended treatment for the plaintiff's lower back, and that the plaintiff's claims should have been dismissed, or alternatively, that the plaintiff's claims for the medical treatment provided and recommended by Dr. Scrantz should have been dismissed. They further contend that the jury's verdict was not supported by any reasonable interpretation of the evidence, was clearly contrary to the law and evidence, and constituted a miscarriage of justice.
Based on our review of the record, we find that there was substantial evidence opposed to the motions for directed verdict and JNOV of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach the conclusion that Mr. Belanger's lower back injury was caused by the accident and that he sustained damages as a result of the accident. Thus, the trial court properly denied the motions for directed verdict and JNOV. Likewise, we find no basis upon which the trial court was required to grant the motion for new trial, and we find no abuse of the trial court's discretion in its ruling denying the motion for new trial.
CONCLUSION
For all of the above and foregoing reasons, the April 26, 2011 judgment rendered in accordance with the jury verdict is affirmed. All costs of this appeal are assessed against the defendants, Natalie N. Stephen and GEICO General Insurance Company.
AFFIRMED.