Opinion
NUMBER 2011 CA2103
08-31-2012
REHEMA KHALID-ABASI v. RICKEY T. RICHARD AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
George R. Blue, Jr. Covington, LA Counsel for Plaintiff/Appellant Rehema Khalid-Abasi Harold J. Adkins Baton Rouge, LA Counsel for Defendant/Appellee Rickey T. Richard & State Farm Mutual Automobile Insurance Company Patricia J. Delpit Baton Rouge, LA
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Suit Number C555436
Honorable Wilson Fields, Presiding
George R. Blue, Jr.
Covington, LA
Counsel for Plaintiff/Appellant
Rehema Khalid-Abasi
Harold J. Adkins
Baton Rouge, LA
Counsel for Defendant/Appellee
Rickey T. Richard & State Farm
Mutual Automobile Insurance
Company
Patricia J. Delpit
Baton Rouge, LA
BEFORE: WHIPPLE, KUHN, AND GUIDRY, JJ.
GUIDRY , J.
In this action to recover for personal injuries following an automobile accident, plaintiff, Rehema Khalid-Abasi, appeals from a trial court judgment awarding her $115,066.00 in damages. For the reasons that follow, we amend the trial court's judgment in part and affirm as amended.
FACTS AND PROCEDURAL HISTORY
On January 25, 2007, Ms. Abasi was traveling southbound on U.S. Highway 61 in Ascension Parish when she was struck in the rear by a vehicle driven by Tammy Riggs, whose vehicle had been struck in the rear by a vehicle driven by Rickey T. Richard.
Thereafter, on May 21, 2007, Ms. Abasi filed a petition for damages, naming Mr. Richard and his insurer, State Farm Mutual Automobile Insurance Company, as defendants and alleging that she sustained severe personal bodily injury as a result of the accident. The parties subsequently stipulated as to liability, reserving any issues relative to causation and damages for trial.
Following a four-day jury trial on the remaining issues of causation and damages, the jury rendered a verdict, finding Ms. Abasi was injured in the subject accident and awarding $10,000.00 for past physical pain and suffering; $70,000.00 in past medical expenses; $5,066.00 in future medical expenses; and $30,000.00 in past lost wages. The jury declined to award any damages for future physical pain and suffering, past and future mental pain and suffering, future loss wages and earning capacity, past and future loss enjoyment of life, and permanent disability or impairment. On June 22, 2010, the trial court signed a judgment in conformity with the jury's verdict, awarding Ms. Abasi $115,066.00, plus judicial interest from the date of judicial demand until paid, plus all court and other taxable costs.
Ms. Abasi subsequently filed a motion for judgment notwithstanding the verdict (JNOV), asserting that the trial court's judgment was erroneous and contrary to the law and evidence adduced at trial. Following a hearing on Ms. Abasi's motion, the trial court signed a judgment denying same. Ms. Abasi now appeals from both judgments of the trial court.
DISCUSSION
Special Damages
Special damages are those that have a "ready market value" such that the amount of the damages theoretically may be determined with relative certainty, including medical expenses and lost wages. McGee v. A C and S. Inc., 05-1036, p. 3 (La. 7/10/06), 933 So. 2d 770, 774. Much discretion is left to the jury in its assessment of quantum-both special and general damages. La. C.C. art. 2324.1; Menard v. Lafayette Insurance Company, 09-1869 (La. 3/16/10), 31 So. 3d 996, 1006-1007. In reviewing a jury's factual conclusions with regard to special damages, an appellate court must satisfy a two-step process based on the record as a whole in order to modify or reverse the judgment: there must be no reasonable factual basis for the jury's conclusion, and the finding must be clearly wrong. See Menard, 09-1869 at p. 14, 31 So. 3d at 1007. This test requires a reviewing court to do more than simply review the record for some evidence that supports or controverts the jury's findings. The court must review the entire record to determine whether the jury's finding was clearly wrong or manifestly erroneous.
The issue to be resolved on review is not whether the jury was right or wrong, but whether the jury's fact-finding conclusion was a reasonable one. Menard, 09-1869 at pp. 14-15, 31 So. 3d at 1007. Further, where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Menard, 09-1869 at p. 15, 31 So. 3d at 1007. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be manifestly erroneous or clearly wrong. Menard, 09-1869 at p. 15, 31 So. 3d at 1007. Past and Future Medical Expenses
A tort victim may ordinarily recover reasonable medical expenses, past and future, that he incurs as a result of an injury. See Menard, 09-1869 at p. 12, 31 So. 3d at 1006. However, plaintiff must prove, by a preponderance of the evidence, the existence of the injuries and a causal connection between the injuries and the accident. See Yohnv. Brandon, 01-1896, p. 6 (La. App. 1st Cir. 9/27/02), 835 So. 2d 580, 584, writ denied, 02-2592 (La. 12/13/02), 831 So. 2d 989. The test to determine if that burden has been met is whether the plaintiff proved through medical testimony that it is more probable than not that the injuries were caused by the accident. Yohn, 01-1896 at p. 6, 835 So. 2d at 584. Generally, the effect and weight to be given medical expert testimony is within the broad discretion of the factfinder. Yohn, 01-1896 at p. 7, 835 So. 2d at 584. A trier of fact may accept or reject, in whole or in part, the uncontradicted opinions expressed by an expert. See Harris v. State, Department of Transportation and Development, 07-1566, p. 25 (La. App. 1st Cir. 11/10/08), 997 So. 2d 849, 866, writ denied, 08-2886 (La. 2/6/09), 999 So. 2d 785. The law is well settled that where the testimony of expert witnesses differs, the trier of fact has great, even vast, discretion in determining the credibility of the evidence, and a finding in this regard will not be overturned unless it is clearly wrong. Cotton v. State Farm Mutual Automobile Insurance Company, 10-1609, pp. 7-8 (La. App. 1st Cir. 5/6/11), 65 So. 3d 213, 220, writ denied, 11-1084 (La. 9/2/11), 68 So. 3d 522.
Further, a tortfeasor is liable only for damages caused by his negligence; he is not liable for damages caused by separate, independent or intervening causes. Hence, the plaintiff has the burden of proving that her injuries were not the result of such separate, independent or intervening causes. Yohn, 01-1896 at p. 7, 835 So. 2d at 584. The trial court's causation finding is a factual determination that may not be set aside on appeal in the absence of manifest error. Rosell v. ESCO, 549 So. 2d 840, 844 (La. 1989).
The jury in the instant case awarded Ms. Abasi $70,000.00 in past medical expenses. However, Ms. Abasi contends that the jury erred in failing to award her the full amount of her past medical expenses, totaling $101,091.36. At trial, several experts testified regarding their treatment of Ms. Abasi. Dr. John Tucker, III, Ms. Abasi's treating physician, testified that Ms. Abasi had been a patient of his since 1998 or 2000. Dr. Tucker testified that he saw Ms. Abasi on January 26, 2007, one day after the January 25, 2007 accident, and that she presented with right upper extremity radicular pain and tingling of her right hand. Dr. Tucker stated that he diagnosed Ms. Abasi with cervical radiculitis, cervical strain, and temporomandibular joint strain (TMJ). Further, Dr. Tucker stated that a review of a February 2007 MRI showed right-sided nerve root impingement at the cervical 56 level. However, Dr. Tucker also noted that prior to the January 25, 2007 accident, he treated Ms. Abasi for neck and back pain. Ms. Abasi had a history of right shoulder pain, cervical radiculitis, right arm numbness and tingling, and reflex sympathetic dystrophy (RSD) of her upper extremity. Additionally, Ms. Abasi had scoliosis of her spine. In discussing her past medical history, Dr. Tucker noted that he had seen Ms. Abasi on twenty-nine occasions between 2003 and December 2006 for issues related to her neck, back, and right shoulder.
Additionally, Dr. Susan Bryant, a physical and rehabilitation specialist, began treating Ms. Abasi on April 25, 2007, after Dr. Tucker requested that she perform a consult. At that time, Ms. Abasi's chief complaint was her neck and right shoulder with right hand weakness. Dr. Bryant diagnosed Ms. Abasi with right shoulder injury with impingement, possible rotator cuff tendonitis, post-concussive syndrome, and cervical sprain/strain (whiplash). Dr. Bryant stated that at that time, it was her opinion that these conditions were caused by the January 25, 2007 accident. Dr. Bryant continued to treat Ms. Abasi, and following a nerve conduction study on May 16, 2007, diagnosed her with a chronic nerve injury at C-8, T-l, which is an area at the beginning of the ulnar nerve (a nerve going across the inside of the arm and down past the elbow, affecting the "pinkie" and ring finger). Dr. Bryant noted Ms. Abasi had preexisting disc injuries, but that this injury to the C-8, T-l area was caused by the January 25, 2007 accident. Dr. Bryant subsequently diagnosed Ms. Abasi with cubital tunnel syndrome, which she determined was more likely than not related to the accident, and referred Ms. Abasi to Dr. Richard Texada, an orthopedic surgeon. Dr. Bryant stated that she saw Ms. Abasi in September 2008, approximately nine months after she referred her to Dr. Texada. Since that time, Dr. Texada had performed a surgical procedure on Ms. Abasi's right elbow. Dr. Bryant noted on this visit that Ms. Abasi had shoulder pain, cervical disc disorder, cervical radiculitis, and reflex sympathetic dystrophy (RSD). According to Dr. Bryant, the presentation of RSD was an exacerbation of the surgical procedure performed by Dr. Texada, which, in her opinion, was as a result of the January 25, 2007 accident.
Dr. Richard Texada testified at trial by way of video deposition. He stated that when he first saw Ms. Abasi on February 11, 2008, her biggest complaints were pain in her right arm and shoulder down into her forearm. Dr. Texada stated that he reviewed the nerve conduction studies, which showed cubital tunnel syndrome, i.e. compression of the ulnar nerve behind the elbow. According to Dr. Texada, he would expect someone with Ms. Abasi's complaints of pain and numbness along the inside aspect of her forearm from her elbow to her hand to have a positive finding of cubital tunnel syndrome. Dr. Texada stated that he performed a right ulnar nerve transposition decompression on March 14, 2008, and found a thickening of the subcutaneous tissue, which was possibly some scar tissue. According to Dr. Texada, the right elbow and right shoulder pain was causally related to the January 25, 2007 accident and the surgery was medically necessary as a result of the injury caused by the accident However, he acknowledged that he did not receive Ms. Abasi's prior medical history when she was referred to him, and he was not aware of her history of symptoms prior to the January 25, 2007 accident. Dr. Texada admitted that he might change his opinion if he knew Ms. Abasi was being treated for her shoulder before the accident.
Finally, Dr. Paul Van Deventer testified at trial, also by video deposition. Dr. Van Deventer saw Ms. Abasi on April 24, 2007 and September 11, 2007. Dr. Van Deventer stated that after his first evaluation, he felt that Ms. Abasi had evidence of thoracic and cervical sprain/strain, i.e. whiplash. Ms. Abasi had complaints of sensation issues in her right arm, but he found no structural explanation for her complaints. At the September 11, 2007 evaluation, Dr. Van Deventer noted that Ms. Abasi had diffuse pain through her whole right arm, which he could not relate to a clear area of her neck or to a specific nerve. Ms. Abasi had a seventy percent range of motion and had negative Sterling and Tinel tests in her carpal and cubital tunnel, indicating no irritation of the nerve at the elbow or wrist. Dr. Van Deventer found no evidence of cubital tunnel syndrome on either visit. Additionally, Dr. Van Deventer reviewed the May 2007 EMG, which did not show a cervical radiculopathy and did not show desiccation at the C-8, T-l level. Accordingly, Dr. Van Deventer could not relate Ms. Abasi's symtomology to the medial or ulnar nerve based on these tests. Dr. Van Deventer noted that Ms. Abasi had improved range of motion, with full range of motion of her elbow, wrist and hand, and that the condition of the right arm had shown improvement between the April and September 2007 visits. Dr. Van Deventer opined that the majority of Ms. Abasi's symptoms were whiplash, a strain or injury to the muscles around the neck and shoulder, and that there was no clear evidence of a structural problem that he could relate to a motor vehicle accident.
From our review of the record, it appears that the jury determined that Ms. Abasi was not entitled to the full cost of medical treatment for her right shoulder and right arm, including the ulnar nerve transposition surgery and subsequent treatment for RSD. The evidence in the record supports a finding that Ms. Abasi suffered from RSD and cervical radicular pain prior to the January 25, 2007 accident. Further, Dr. Van Deventer specifically stated that he found no evidence of cubital tunnel syndrome, nor did he find any evidence of a structural problem that he could relate to a motor vehicle accident. The record clearly supports the conclusion that there were two permissible views of the evidence relating to the nature and causation of Ms. Abasi's claimed injuries, and that the jury was ultimately required to base its decision on its evaluation of conflicting expert testimony. Given the vast discretion afforded the jury in its weighing and evaluation of expert testimony, we find no error in its implicit determination that Ms. Abasi's treatment for her right shoulder, right arm, and RSD were not necessitated by the January 25, 2007 accident. As such, we find no error in the jury's award of $70,000.00 in past medical expenses.
Further, given the jury's finding, we likewise find no error in its award for future medical expenses. The majority of the expert testimony discussed future medical treatment for RSD. However, Dr. Bryant did state that Ms. Abasi would need injections, medication, and physical therapy for her neck injuries. Dr. Van Deveneter also agreed that Ms. Abasi should continue physical therapy to address her muscle injury. Given the evidence in the record as to the cost of Ms. Abasi's medication and the cost of physical therapy and injections, we find no error in the jury's award of $5,066.00 in future medical expenses. Lost Wages
A plaintiff seeking damages for past lost wages bears the burden of proving lost earnings, as well as the duration of time missed from work due to the accident. The trier of fact has broad discretion in assessing awards for lost wages, but there must be a factual basis in the record for the award. Where there is no basis for a precise mathematical calculation of a past lost wage claim, the trier of fact can award a reasonable amount of damages without abusing his discretion. Cotton, 10-1609 at pp. 15-16, 65 So. 3d at 224.
At the time of the accident, Ms. Abasi, who has a Master's degree in psychology counseling and a Master's degree in early childhood education, worked as a family preservation therapist- Ms. Abasi stated that as part of her job, she made in-home family visits for six-week periods of time, visiting two to three homes per day. According to Ms. Abasi, she could choose where she wanted to go, and she chose to travel to St. James Parish, St. Charles Parish, Lafourche Parish and Terrebonne Parish. However, Ms. Abasi acknowledged that the company she worked for also covered St. Tammany Parish, which was where she resided.
Dr. Tucker and Dr. Bryant both testified that they had disabled Ms. Abasi from work following the January 25, 2007 accident, and as of the date of trial, neither doctor had released Ms. Abasi to return to work. However, in discussing her recommendation that Ms. Abasi remain off of work, Dr. Bryant stated that her main restrictions related to the RSD with regard to how she could use her extremity. Further, Dr. Bryant stated that Ms. Abasi told her that she was not driving and was not able to write. However, during her testimony, Ms. Abasi, who is right-handed, stated that when necessary, she continued to drive her manual transmission automobile. Additionally, Ms. Abasi stated that she is able to write and type using her right hand.
Dr. Van Deventer stated that after his April 24, 2007 evaluation of Ms. Abasi, he felt that she could perform sedentary to light duty activities, but that he would not have recommended repetitive use of her right upper extremity. After his evaluation of Ms. Abasi on September 11, 2007, Dr, Van Deventer continued to recommend that Ms. Abasi perform sedentary to light duty activities, and he felt that she could occasionally use her right arm, However, he recommended that she not lift anything greater than fifteen pounds. Dr. Van Deventer stated that at that time, he hoped Ms. Abasi would have resolution of her symptoms within six to twelve weeks and that the restrictions could then be lifted.
According to the record, Ms. Abasi's annual gross salary at the time of the accident was $28,840.00, plus benefits. The jury, in awarding Ms. Abasi $30,000.00 in past lost wages, apparently determined that she was entitled to roughly one year of lost compensation. This finding coincides with the opinion of Dr. Van Deventer that he believed Ms. Abasi's symptoms should resolve, and her restrictions would be lifted, in six to twelve weeks following his September 11, 2007 evaluation of her. Given the discretion afforded the jury in its evaluation of the credibility of the witnesses, and considering that Dr. Bryant and Dr. Tucker were misinformed as to the activities that Ms. Abasi v/as actually able to perform, we find no abuse of discretion in the jury's award of $30,000.00 in past lost wages.
Likewise, considering the foregoing testimony, we find no error in the jury's failure to award damages for future loss wages/earning capacity.
General Damages
"General damages" involve mental or physical pain and suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle that cannot be measured definitively in terms of money. McGee, 05-1036 at pp. 3-4, 933 So. 2d at 774. The trier of fact is accorded much discretion in fixing general damage awards. La. C.C art. 2324.1; Cheramie v. Horst, 93-1168, p. 6 (La. App. 1st Cir. 5/20/94), 637 So. 2d 720, 723. The discretion vested in the trier of fact is great, even "vast," so that an appellate court should rarely disturb an award of general damages. Youn v Maritime Overseas Corp., 623 So. 2d 1257, 1261 (La 1993), cert. denied, 510 US 1114, 11.4 S. Ct. 1059, 127 L.Ed. 2d 379 (1994).
Before an appellate court can disturb the quantum of the award, the record must clearly reveal that the jury abused its discretion. In order to make this determination, the reviewing court looks first to the individual circumstances of the injured plaintiff. Theriot v. Allstate Insurance Company, 625 So. 2d 1337, 1340 (La. 1993). 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 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 the award the lowest amount which is reasonably within the court's discretion. Youn, 623 So. 2d at 1261; Coco v. Winston Industries, Inc., 341 So. 2d 332, 335 (La. 1976). Pain and Suffering
Pain and suffering, both physical and mental, refers to the pain, discomfort, inconvenience, anguish, and emotional trauma that accompanies an injury. McGee, 05-1036 at p. 5, 933 So. 2d at 775. The factors to be considered in assessing quantum of damages for pain and suffering are severity and duration. Jenkins v. State, Department of Transportation and Development, 06-1804, p. 26 (La. App. 1st Cir. 8/19/08), 993 So. 2d. 749, 767, writ denied, 08-2471 (La. 12/19/08), 996 So. 2d 1133.
Ms. Abasi contends that the jury abused its discretion in awarding only $10,000.00 for past physical pain and suffering and in failing to award any amount of damages for future physical pain and suffering, past mental pain and suffering and future mental pain and suffering. From our review of the record, we agree.
The record demonstrates that at the time of trial, Ms. Abasi had undergone over three years of medical treatment, including numerous doctor's visits, four nerve conduction studies, MRIs, injections and physical therapy for which the jury awarded $70,000.00 in past medical expenses. Ms. Abasi stated that the injections were extremely painful, as was the physical therapy. Ms, Abasi also stated that she was not able to engage in normal daily activities, such as cleaning her house or cooking, and she was unable to enjoy her hobbies of photography, crafts and journaling.
Further, though the jury's awards of past medical expenses and pain and suffering suggest that the jury did not believe that Ms. Abasi's treatment for her shoulder pain, right arm pain and RSD were causally connected to the accident, nor that the pain, discomfort, inconvenience and anguish associated therewith were so connected, we still find that an award of $10,000.00 for past physical pain and suffering is abusively low. Further, given the jury's award for future medical expenses, which implies that Ms. Abasi is still suffering from an injury that will, in fact, require future medical attention, we likewise conclude that the jury abused its discretion in failing to award any damages for future pain and suffering. After reviewing similar awards, we find that the lowest amount reasonably within the jury's discretion for total pain and suffering is $30,000.00. See Mixter v. Wilson, 10-464, p. 7 (La. App. 5th Cir. 12/14/10), 54 So. 3d 1164, 1169 (damage to three cervical discs, treatment for over twelve months, injections to relieve pain and eleven percent impairment); Cole v. Allstate Insurance Company, 07-1046, pp. 8-9 (La. App. 3rd Cir. 6/5/08), 987 So, 2d 310, 316, writ denied. 08-1463 (La. 10/31/08), 994 So.. 2d 535 (muscle spasms, whiplash, two years treatment up to date of trial, injections). Loss of Enjoyment of Life and Physical Disability
Although Ms. Abasi listed past physical pain and suffering, future physical pain and suffering, past mental pain and suffering, and future mental pain and suffering as individual items of damages on the jury verdict form, we award one amount for all pain and suffering. See Cox v. Shelter Insurance Co., 09-0958, p. 18 n.4(La. App. 3rd Cir. 4/7/10), 34 So.3d 398, 410 n.4, writ denied, 10-1041 (La. 9/17/10), 45 So.3d 1044.
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For purposes of a general tort claim, disability damages are recognized as those general damages constituting any permanent disability or impairment that is secondary to the injuries sustained in the accident. Brossett v. Howard, 08-535, p. 19 (La. App. 3rd Cir. 12/10/08), 998'So. 2d 916, 931, writ denied, 09-0077 (La. 3/6/09), 3 So. 3d 492; see also Matos v. Clarendon National Insurance Company, 00-2814, p. 11 (La. App. 1st Cir. 2/15/02), 808 So. 2d 841, 848-49. Disability is defined as "the inability to perform some function," or alternatively, '[a]n objectively measurable condition of impairment, physical or mental." Impairment is simply defined as "[t]he fact or state of being damaged, weakened or diminished." Bryan A. Garner, Black's Law Dictionary (9th ed. 2009).
Similarly, loss of enjoyment of life refers to the detrimental alterations of a person's life or lifestyle or a person's inability to participate in the activities or pleasures of life that were formerly enjoyed prior to the injury. McGee, 05-1036 at p. 3, 933 So. 2d at 773. Whether a plaintiff experiences a detrimental lifestyle change depends on both the nature and severity of the injury and the lifestyle of the plaintiff prior to the injury. McGee, 05-1036 at p. 5, 933 So. 2d at 775. Accordingly, whether damages for loss of enjoyment of life are recoverable is a question that depends on the particular facts of the case and is to be left to the discretion of the trier of fact, to be determined on a case-by-case basis. See McGee, 05-1036 at pp. 3-5, 933 So, 2d at 774-775.
Ms. Abasi contends that the jury erred in failing to find that she was entitled to damages for physical disability and loss of enjoyment of life. However, from our review of the record, we find no error in the jury's determination. First, with regard to physical disability, Dr. Bryant testified that the RSD suffered by Ms. Abasi is a permanent condition. However, as we have already noted, the jury apparently did not find that the RSD was caused by the January 25, 2007 accident. Additionally, though Ms. Abasi testified as to changes in her lifestyle since the accident, the majority of these changes related to the pain from her shoulder, right arm, and RSD, which, again, the jury apparently did not find were caused by the accident at issue. Accordingly, given the discretion afforded the trier of fact, and the absence of evidence in the record otherwise establishing that Ms. Abasi experienced significant limitations or impairments as a result of the injuries caused by the January 25, 2007 accident, we find no error in the jury's failure to award damages for loss of enjoyment of life.
CONCLUSION
For the foregoing reasons, we amend the judgment of the trial court to award damages to Ms. Abasi in the amount of $135,066.00, plus judicial interest from date of judicial demand until paid. In all other respects, the judgment of the trial court is affirmed. All costs of this appeal are assessed to defendants, Rickey T. Richard and State Farm Mutual Automobile Insurance Company.
JUDGMENT AMENDED AND AFFIRMED AS AMENDED.