Plaintiff claims that the general damages awarded herein were abusively low, where the medical expenses award for both past and future medicals was $269,032.00, but the general damage award was only $260,000.00. Plaintiff relies upon Burtner v. Lafayette Parish Consol. Gov't, 2014-1180 (La. App. 3 Cir. 4/15/15)(unpublished opinion), writ denied, 2015-0938 (La. 6/19/15), 169 So. 3d 350, where relying on Ford v. Bituminous Ins. Co., 2012-1453 (La. App. 3 Cir. 6/19/13), 115 So. 3d 1253, wherein the court found that when the medical expenses were "wholly inconsistent" with the general damage award, the general damage award was an abuse of discretion. Burtner, at pp. 5-6; Ford, 115 So. 3d at 1258. Plaintiff herein claims that the minimum she should have been awarded for general damages was $400,000.
Wal-Mart also cited cases wherein plaintiffs with similar injuries were awarded in excess of $50,000 for general damages. (See e.g. Ford v. Bituminous Ins. Co., 115 So.3d 1253 (La.App. 3 Cir. 2013), in which the Louisiana Third Circuit held that $50,000 was the lowest reasonable general damage award for spine and left knee injuries, with conservative treatment including epidural steroid injections). Accordingly, the Court finds that the amount in controversy exceeds $75,000, and diversity jurisdiction exists.
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 Serv. Inc. , 99-0934 (La. 10/29/99), 747 So.2d 1085, 1089 ; Ford v. Bituminous Ins. Co. , 12-1453 (La. App. 3 Cir. 06/19/13), 115 So.3d 1253, 1255.In Duncan v. Kansas City Southern Railway Co. , 00-66 (La. 10/30/00), 773 So.2d 670, 682, cert. denied , 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001), the Louisiana Supreme Court explained that general damages are those which may not be fixed with "pecuniary exactitude;" rather, these damages "involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms."
Based on our review of this record and awards for similar injuries, we find that plaintiff is entitled to $40,000 in general damages. Compare Lewis v. Jones , 11–1117 (La.App. 5 Cir. 5/22/12), 96 So.3d 559 ($40,000 general damage award aggravation of degenerative changes to spine, sporadic treatment, continued pain at trial); Ford v. Bituminous Ins. Co. , 12–1453 (La.App. 3 Cir. 06/19/13), 115 So.3d 1253, 1258 ($50,000 general damage award for bulging disc and epidural steroid injections); Clement v. Carbon , supra ($30,000 award for low back injury, bulging cervical disc, one injection); Sanchez v. Dubuc , 12–526 (La.App. 5 Cir. 02/21/13), 110 So.3d 1140, 1146 ($47,462 award for ruptured disc without surgery, plaintiff still had pain 27 months after the accident). In addition, we award special damages of $9,594.55 for medical expenses.
12 by agreement of the parties. This court in Ford v. Bituminous Ins. Co., 12–1453 (La.App. 3 Cir. 6/19/13), 115 So.3d 1253, dealt with a similar situation where the award for general damages was substantially less than the award rendered for medical expenses. In that case, the plaintiff was awarded $45,000.00 in medical expenses, but only $17,000.00 in general damages.