Opinion
NO. 21-CA-726
08-24-2022
Jose MENA, III. v. Kailyn CHUTER and Her Insurance Company State Farm Mutual Automobile Insurance Company
COUNSEL FOR PLAINTIFF/APPELLANT, JOSE MENA, III, Tomy J. Acosta, LaPlace, Dean T. DeFrancesch, James A. Harry, Metairie COUNSEL FOR DEFENDANT/APPELLEE, KAILYN CHUTER AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, David A. Strauss, Robin D. Cassedy, New Orleans
COUNSEL FOR PLAINTIFF/APPELLANT, JOSE MENA, III, Tomy J. Acosta, LaPlace, Dean T. DeFrancesch, James A. Harry, Metairie
COUNSEL FOR DEFENDANT/APPELLEE, KAILYN CHUTER AND STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, David A. Strauss, Robin D. Cassedy, New Orleans
Panel composed of Judges Marc E. Johnson, John J. Molaison, Jr., and June B. Darensburg
MOLAISON, J.
This matter involves a lawsuit for injuries allegedly sustained by plaintiff, Jose Mena, III, during a motor vehicle accident that occurred on April 27, 2017. At trial, Mr. Mena sought damages for alleged injuries to his neck and back from the defendant, State Farm Mutual Automobile Insurance Company, ("State Farm"), the insurer of the driver of the car who stipulated liability in causing the accident. After the plaintiff rested, the trial court granted the defendant's motion for directed verdict on the issue of future medical expenses. At the conclusion of trial, the jury awarded Mr. Mena $5,153.00 for past medical expenses, and $94,847.00 for past and present physical pain and suffering and mental anguish. The trial court granted the defendant's motion for Judgment Notwithstanding the Verdict and reduced the award for past and present physical pain and suffering and mental anguish to $50,000.00. Mr. Mena now appeals the trial court's grant of the directed verdict and the motion for Judgment Notwithstanding the Verdict. For the reasons that follow, we affirm the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
Mr. Mena was stopped at a red light when he was rear ended by a car driven by State Farm's insured. After the accident, he went to the emergency room and was given medication for upper back pain. Two days later, he sought treatment from a chiropractor. Mr. Mena visited River Parishes Chiropractic clinic eleven times over the six month period between April 29, 2017 and October 19, 2017. The clinic records show long gaps between treatments. The discharge summary from the clinic dated December 1, 2017 states that after the October 19, 2017 treatment, Mr. Mena has "apparently voluntarily withdrawn from care against medical advice."
Mr. Mena visited an orthopedic surgeon, Dr. Marco Rodriguez, on January 30, 2018. Mr. Mena testified that Dr. Rodriguez recommended that he have "shots done" but Mr. Mena had declined to do so because these shots were "close to the spine," it was possible they would not work, and the shots could "affect" him in a "harmful way."
Mr. Mena testified that the 20-month gap in his treatment with Dr. Rodriguez was due to his being incarcerated. Although Mr. Mena stated at trial that he told prison officials about his "condition" related to this motor vehicle accident, and that he tried to get "pills" for shoulder and arm pain while incarcerated, there is nothing in the prison medical records to suggest that Mr. Mena complained of neck pain, numbness or back pain or that he sought treatment for this pain. Mr. Mena testified that he was given two separate prescriptions for the anti-inflammatory medication, Ibuprofen, while in prison, however, the medical records reflect that this medication was prescribed for pain related to a tooth infection and extraction. Mr. Mena testified that he purchased Ibuprofen at the prison and took this medication for the pain caused by the injuries from the accident, however the record does not contain any records for these purchases. Contrary to the reports in the prison medical records, at trial Mr. Mena denied that he reported doing vigorous exercise.
Mr. Mena testified that he worked at Brocks auto repair shop "on and off" for ten years. He stated that after the accident, he could no longer do the work. He elaborated that the owner of the shop had accused him of "sleeping with his ex-girlfriend and fired him."
Mr. Mena reported pain at the time of trial, explaining that raising his arms above his head for "too long" causes severe pain and his left arm "goes numb." He stated that the pain has prevented him from doing work he could perform prior to the accident, including painting, roofing, sheetrock work and carrying heavy items.
Dr. Marco Rodriguez, who was accepted as an expert in orthopedic surgery, testified that Mr. Mena was referred to him for a surgical examination. At the examination on January 30, 2018, the plaintiff reported numbness and tingling of his left arm and low back pain. The MRI performed on October 20, 2017 shows disc herniation from cervical vertebra two through seven, with some nerve root compression and a tear in the outer rim of the disc between cervical vertebrae five and six. Dr. Rodriguez recommended cervical epidural steroid injections around the "pinched" nerve at the left side of C6-7 as well as an MRI of his low back. Anti-inflammatory medication, a muscle relaxer, and a pain medication were prescribed.
On August 27, 2019, twenty months later, Mr. Mena returned to Dr. Rodriguez's office reporting neck pain radiating to his left arm, and low back pain. An MRI of the low back and facet joint injections for the left C-4 to C-7 facet joints were recommended. A muscle relaxant and anti-inflammatory medication were prescribed.
On November 19, 2019, Mr. Mena had his final visit with Dr. Rodriguez. Mr. Mena reported neck pain, numbness and tingling of the left arm, and low back pain. Dr. Rodriguez again recommended facet joint injections and an MRI of the lower back. Mr. Mena did not undergo the facet joint injections, epidural steroid injections, or have the MRI of the low back. There is no indication in the record that Mr. Mena sought medical treatment for the injuries allegedly sustained in this accident between November 19, 2019 and the time of trial.
Dr. Rodriguez related Mr. Mena's complaints of neck pain, numbness and tingling, and low back pain to the April 27, 2017 accident because Mr. Mena did not have these complaints prior to the accident. When questioned as to Mr. Mena's need for future medical treatment, Dr. Rodriguez testified that the cervical facet injections or epidural steroid shots would give temporary relief then they would proceed with a cervical fusion at C6-7. Dr. Rodriguez testified that Mr. Mena needs left C4 to C7 facet joint injections and more likely than not will need cervical rhizotomy of C4 to C7 every twelve to eighteen months for the rest of his life. Dr. Rodriguez testified that he had "seen prices in the range" of $5,000.00 to $10,000.00 "for rhizotomies like this." He estimated the cost of a cervical fusion to be $80,000.00 to $100,000.00. Dr. Nicholas Laird, the director of River Parishes Chiropractic, was accepted as an expert in the field of "doctor of chiropractic." Mr. Mena first visited the clinic on April 29, 2017 reporting neck pain, right hand numbness, pain in the mid and upper back, and muscle spasms. The examination performed by Dr. Laird showed "dysfunction or sprain strain of the sacroiliac joint" of the hip. X-rays showed "rotational misalignments" in the cervical spine, spondylosis at thoracic vertebrae seven through ten, and a misaligned pelvis due to one femur being 1.5 centimeters shorter than the other. Because Mr. Mena reported that he did not have pain prior to this accident, Dr. Laird opined that it is more likely than not that the car accident caused pain where there was previously asymptomatic misalignment. Mr. Mena received eleven sessions of ultrasound therapy and electro therapy to decrease inflammation and help prevent scar tissue from forming.
LAW AND DISCUSSION
Directed Verdict
On appeal, Mr. Mena argues that the trial court erred in granting the motion for directed verdict when Dr. Rodriguez testified that the plaintiff will need future medical treatment in the form of rhizotomies at a cost of $5,000.00 to $10,000.00 every year and a half. State Farm responds that Mr. Mena had the burden of proving that it is more probable than not that the future medical expenses would be incurred.
A motion for a directed verdict, which is a procedural device available in jury trials for the purpose of judicial economy, "should be granted when, considering all of the evidence in the light most favorable to the non-mover, it is clear that the facts and inferences point overwhelmingly in favor of the mover that reasonable jurors could not reach a contrary verdict." Department of Transportation and Development v. Motiva Enterprises, LLC, 19-32 (La. App. 5 Cir. 10/2/19), 279 So.3d 1076, 1081. This Court explained the standard of appellate review of the grant of directed verdict stating: "The appellate court must determine if the record supports the granting of a directed verdict based on a sufficiency of evidence determination (a question of law), and not a credibility determination (a factual issue)." Id. The appellate court must consider the propriety of a directed verdict in light of the substantive law applicable to the claims. Id.
Future medical expenses must be established with some degree of certainty. Gaspard v. Southern Farm Bureau Cas. Ins. Co., 13-0800 (La. App. 1 Cir. 9/24/14), 155 So.3d 24, 35. The party seeking an award of future medical expenses has the burden of proving that it is more probable than not that such expenses will be incurred. Antill v. State Farm Mut. Ins. Co., 20-131 (La. App. 5 Cir. 12/2/20), 308 So.3d 388, 407.
The record before us indicates that although Mr. Mena's treating physician recommended both epidural steroid injections and facet joint injections, in the four years between the accident and the trial, Mr. Mena had not undergone any such injections. In fact, Mr. Mena testified that he was not going to have the injections because he was concerned that the shots could "affect him in a harmful way," elaborating that he could be paralyzed by the shots. While there was no testimony that the plaintiff would not undergo a cervical fusion, Dr. Rodriguez testified that a cervical fusion would not be performed without first having done the injections to determine if the injections alleviated the pain. Dr. Rodriguez recommended cervical rhizotomy, a procedure in which the nerves in the cervical facet joint are burned or ablated by inserting a needle into the neck, for the first time at trial. Given the fact that the plaintiff testified that he has refused to undergo the two other recommended procedures performed by the insertion of a needle in the neck, i.e., the epidural steroid injections and the facet joint injections, there is no evidence in the record that the plaintiff would actually undergo the rhizotomy procedures. Considering the absence of proof that it is more probable than not that Mr. Mena would undergo either the rhizotomy or the cervical fusion, the trial court correctly granted State Farm's motion for directed verdict on the issue of future medical expenses. Accordingly, we find the plaintiff's assignment of error that the trial court erred in granting the directed verdict with respect to future medical expenses to be without merit.
Judgment Notwithstanding the Verdict
On appeal, Mr. Mena argues that the trial court erred in granting the motion for Judgment Notwithstanding the Verdict ("JNOV") because the trial court stated that it believed that the injures were less severe than the jury believed. Appellant contends that the trial court erred in using the unreliable medical records from the prison facility to find that Mr. Mena did not seek treatment for the injuries caused by the accident during the time of his incarceration. In response, State Farm argues the evidence shows that Mr. Mena underwent minimal medical treatment for any injuries sustained in this accident, pointing to the long gaps in plaintiff's treatment and the discrepancies between plaintiff's testimony and the medical records.
A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors could not arrive at a contrary verdict. Davis v. Wal-Mart Stores, Inc., 00-445 (La. 11/28/00), 774 So.2d 84, 89. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions, not merely when there is a preponderance of evidence for the mover. Id. In making this determination, the court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. Id.
The appellate court uses the same criteria as the trial court to determine if JNOV was correctly granted. Riley v. Hollander, 19-520 (La. App. 5 Cir. 5/28/20), 296 So.3d 1248, 1257-58, writ denied, 20-00833 (La. 10/14/20), 302 So.3d 1123, reconsideration not considered, 20-00833 (La. 1/12/21), 308 So.3d 297. Once the appellate court determines that the trial court correctly granted the motion for JNOV, the appellate court reviews the award made by the trial court under the manifest error standard of review. Estevez v. Baron, 02-326 (La. App. 5 Cir. 10/16/02), 828 So.2d 725, 729.
The evidence presented at trial shows that Mr. Mena sustained neck and back injuries as a result of this accident. Both medical experts related plaintiff's reports of pain to the accident because he denied having pain prior to the accident. From the first time Dr. Rodriguez examined Mr. Mena and continuing until the time of trial, Dr. Rodriguez recommended treatments, i.e., epidural steroid injections and facet joint injections, for the complaints of pain. Mr. Mena did not follow through with any of these recommendations. The office note for the last visit with Dr. Rodriguez on November 19, 2019 states: "follow up in 3 months or 2 weeks post injection intervention, whichever comes first." Mr. Mena never returned to Dr. Rodriguez or any other medical professional for treatment.
Dr. Laird testified that X-rays showed "rotational misalignments" in the cervical spine, spondylosis at thoracic vertebrae seven through ten, and a misaligned pelvis due to one femur being 1.5 centimeters shorter than the other. Dr. Laird related Mr. Mena's pain to this accident because he had no reports of pain prior to the accident. There were long gaps in treatment at the chiropractor clinic. The discharge summary from the chiropractic clinic dated December 1, 2017 states that after the October 19, 2017 treatment, Mr. Mena has "apparently voluntarily withdrawn from care against medical advice."
In addition, the medical records from Mr. Mena's incarceration do not show any complaints of neck pain, numbness, or back pain. These records indicate that Mr. Mena sought treatment for a toothache and anxiety; there is nothing in the records to suggest that Mr. Mena sought treatment for neck pain, numbness, or back pain. In addition, on two separate dates the prison medical records state that Mr. Mena was able to perform vigorous exercise consisting of pushups, sit-ups, burpees, and dips.
The jury's award of $94,847.00 for past and present physical pain and suffering and mental anguish was not supported by the evidence presented by plaintiff. The evidence shows that Mr. Mena did not undergo the treatment recommended by his treating orthopedic surgeon and that he voluntarily withdrew from all medical treatment. Hence, JNOV is warranted in this case because the facts strongly and overwhelmingly indicate that reasonable jurors could not have found that Mr. Mena suffered severe and sustained debilitating pain in this accident warranting such a large award for pain and suffering.
The $50,000.00 award made by the trial court in this case is in the range of awards made for plaintiffs who sustained cervical disc injuries in an automobile accident and underwent conservative treatment. See, White v. Progressive Security Ins. Co., 08-926 (La. App. 3 Cir. 2/4/09), 6 So.3d 860, (affirmed award of $60,000.00 to a plaintiff who suffered multiple cervical disc protrusions from an automobile accident with continued pain two years after the accident); Clement v. Carbon, 13-827 (La. App. 5 Cir. 4/9/14), 153 So.3d 460, (awarded $30,000.00 in general damages, to the plaintiff who sustained a bulging disc at C5-6 and some ligamentous thickening at the C6-7 vertebrae from an automobile accident and still reported pain at trial.); Williams v. Mathieu, 13-1373 (La. App. 5 Cir. 10/29/14), 155 So.3d 54, (affirming $65,000.00 general damages to the plaintiff who sustained herniated discs at C3-4 and C5-6, a bulge at C6-7, and L5-S1 bulging disc in an automobile accident and continued to have pain at the time of trial); and Giglio v. ANPAC Louisiana Ins. Co., 20-209 (La. App. 5 Cir. 12/23/20), 309 So. 3d 416, (granted the plaintiff's motion for JNOV and awarded $50,000.00 to plaintiff for past pain and suffering, mental anguish, aggravation and inconvenience for injuries to multiple discs). Accordingly, we find no manifest error in the award of $50,000.00 to Mr. Mena for past and present physical pain and suffering and mental anguish.
CONCLUSION
For the foregoing reasons, the July 14, 2021 judgment of the trial court granting the defendant's motion for JNOV and awarding $50,000.00 for past and present physical pain and suffering and mental anguish is affirmed.