93-867 La.App. 3 Cir. 3/2/94, Nugent v. Continental Cas. Co.

• Decision Date: 02 March 1994
• Citation: 93-867 La.App. 3 Cir. 3/2/94, Nugent v. Continental Cas. Co., 634 So.2d 406 (La. App. 1994)
• Parties: 93-867 La.App. 3 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 406

634 So.2d 406

93-867 La.App. 3 Cir. 3/2/94

Howard N. NUGENT, Jr. & Cathy Nugent, Plaintiffs-Appellants, v. CONTINENTAL CASUALTY COMPANY, et al., Defendants--Appellees.

No. 93-867.

Court of Appeal of Louisiana Third Circuit.

March 2, 1994.

Rehearing Denied April 7, 1994.

George Arthur Flournoy, Alexandria, for Howard N. Nugent Jr., and Cathy Nugent.

Edward E. Rundell, Alexandria, for Continental Cas. Co., et al.

William H. deLaunay Jr., Joseph J. Bailey, Alexandria, for Allstate Ins. Co.

Before GUIDRY, LABORDE and THIBODEAUX, JJ.

[93-867 La.App. 3 Cir. 1] THIBODEAUX, Judge.

Plaintiff, Cathy Nugent, appeals the amount of a jury award for damages in her personal injury suit against Continental Casualty Insurance Company and Allstate Insurance Company. For the following reasons we find the jury abused its discretion in awarding damages, amend the judgment to increase Ms. Nugent's general damages to $40,000.00 and medical expenses to $20,752.02, and affirm.

FACTS

Cathy Nugent had the supreme misfortune of being involved in four automobile accidents in the span of two and a half years. None was her fault. At issue before this court are the first two. It has not been argued that the latter two contributed to any of the injuries she claimed.

The first accident occurred on November 22, 1989 [93-867 La.App. 3 Cir. 2] when Ms. Nugent's automobile struck one owned by Brenda Sewell as she attempted to cross an intersection in Alexandria, Louisiana. Sewell, an uninsured motorist, failed to obey a stop sign posted for her lane at the intersection and crossed into the path of Ms. Nugent's vehicle.

The second accident occurred on August 8, 1990. Ms. Nugent was a passenger in a pickup truck driven by her brother, Kenneth A. Cosby. Cosby was attempting to merge onto Louisiana Highway 28 in Pineville, Louisiana when the vehicle in front of him suddenly stopped. The front bumper of Cosby's truck struck the rear of the other vehicle and the resulting impact threw Ms. Nugent from her seat and into the windshield.

Ms. Nugent was allegedly injured in both accidents. She claims, and the jury found, the majority of her health problems stems from the first accident with the second accident compounding those obtained in the first.

After the first accident, she was treated briefly at a local hospital's emergency room for neck and back pain. She then went to her family physician who referred her to an orthopedist, Dr. Vanda Davidson. Dr. Davidson initially treated her for cervical and lumbar strain. When conservative treatment--such as physical therapy and medication--gave no relief, he ordered a CT scan which revealed a bulge at L4-5. He also noted that in March of 1990, she began manifesting symptoms of carpal tunnel syndrome. After her condition continued to deteriorate, he suggested she consult a neurosurgeon.

Ms. Nugent obtained treatment from Dr. John Jackson, a neurosurgeon in New Orleans. An MRI and CT scan ordered by Dr. Jackson revealed a possible herniation of the C5-6 vertebra of the neck as well as confirmed Dr. Davidson's findings of a bulging at L4-5. Dr. Jackson also suspected Ms. Nugent had carpal tunnel syndrome and his suspicions [93-867 La.App. 3 Cir. 3] were confirmed by the results of a nerve conduction test.

Dr. Jackson initially elected to treat both her disc pathology and the carpal tunnel syndrome conservatively. However, her pain and discomfort from the carpal tunnel syndrome grew unbearable and a successful carpal tunnel release was performed in July of 1992.

Her complaints of neck and low back pain persisted and Dr. Jackson was unable to assuage them. He noted that her condition continued to deteriorate and expressed concern over the amount of medication she was taking to combat the pain. He testified that he fears conservative treatment will not remedy her ailment and believed that surgery could not be ruled out as a possibility in the future.

At the request of defendants, Ms. Nugent submitted to an examination by Dr. James McDaniel. Dr. McDaniel performed the examination and proclaimed her to be free of any neurological or orthopedic injury.

Suit was originally filed against numerous parties. Through various procedural avenues, all were dismissed with the exception of Continental, Ms. Nugent's uninsured motorist insurer, and Allstate, Cosby's liability insurer.

Prior to trial, the video depositions of Drs. Jackson and McDaniel were taken. Examination of the witnesses was combative among counsel for the parties and occasionally between counsel and the witnesses. The result was that many questions and answers were objectionable and had to be edited from the video tapes shown to the jury. Most of the evidentiary objections raised by Ms. Nugent concern this testimony.

Trial was held over four days. On August 14, 1992, the jury reached a verdict. It found that Ms. Nugent had been injured, with 90% of the damages attributable to the November 22, 1989 accident and 10% attributable to the [93-867 La.App. 3 Cir. 4] accident of August 8, 1990. The jury assessed damages as such:

Physical pain and suffering
                past and future ................. $   7,500.00
                Loss of enjoyment of life
                past and future ................. $   2,500.00
                Past medical expenses ........... $  11,946.00
                Future medical expenses ......... $   5,000.00
                Scarring ........................ $     "0"
                

Mr. Nugent's claim for loss of consortium was tried separately by the trial judge. He was awarded $6,000.00.

Dissatisfied with the jury award amount, Cathy Nugent filed this appeal.

ISSUES

Ms. Nugent raises two issues:

(1) Whether failure to exclude certain evidence was error that prejudiced the jury's decision; and,

(2) Whether the jury abused its discretion in its award for damages.

LAW & ANALYSIS

I. Evidence

Ms. Nugent contends that defendants utilized societal dissatisfaction with the legal profession as its chief defense. This so called "lawyer bashing" defense was effected by the alleged characterization of Ms. Nugent as the car-accident prone, suit-happy wife of a very successful trial attorney who is also very litigious. They also claim that the testimony of defense medical expert, Dr. McDaniel, was evasive, adversarial and highly prejudicial. They assert that the foregoing combination of evidence and testimony severely prejudiced the jury against their case, resulting in an abusively low award and warranting reversal and de novo review.

Defendants argue that their intent was not to vilify the jury against lawyers or against persons predisposed to filing law suits. They contend that evidence regarding [93-867 La.App. 3 Cir. 5] past litigation involving the Nugents reflected on their credibility. They claim that the trial court was astute at separating testimony and evidence which might have been harmful if admitted from that which bore directly and relevantly on the credibility of the Nugents. As to Dr. McDaniel, they claim it was Ms. Nugent's counsel who provoked acerbic comments from him by asking confusing and misleading questions.

Absent clear abuse, we will not intrude on the broad discretion of a trial court in evidentiary decisions. It is within the trial court's province to determine the potential for prejudice afforded by certain evidence and testimony and the degree to which such prejudice might exceed probative value and taint the jury verdict. Gongora v. Snay, 626 So.2d 759 (La.App. 5th Cir.1993); Bourgeois v. McDonald, 622 So.2d 684 (La.App. 4th Cir.1993); City of Baton Rouge v. Tullier, 401 So.2d 422 (La.App. 1st Cir.1981).

This was a highly contested matter. The trial court carefully considered the issues surrounding the objections and ruled as he saw fit. While the trial court was not wholly successful at eliminating all irrelevant evidence, any objectionable evidence that slipped through was unavoidable and its effect slight, if any.

This includes the unfortunate comments of Dr. McDaniel concerning attorneys, whom he believes cause patients to complain of nonexistent injuries for the sake of litigation. His comments, albeit inappropriate, were not so acerbic or inflammatory to rise to the level of prejudice. The implication of his comments did not reflect directly on the Nugents but rather on Dr. McDaniel's apparent disdain for some aspects of the legal profession. We cannot say the trial court erred in failing to exclude it. Accordingly, this issue lacks merit.

[93-867 La.App. 3 Cir. 6] II. Abuse of Discretion

The second issue concerns the jury award. Ms. Nugent contends the jury awards for general damages and past medical damages are too low. We agree.

We cannot reconcile the objective findings of the medical expert witnesses and the award given Ms. Nugent. The jury award is incongruous on its face. Defendants argue that the jury award reflects the jury's disbelief in the credibility of Ms. Nugent and her witnesses. They claim the jury believed the opinion of Dr. McDaniel and made the appropriate award.

Such a position is illogical. Dr. McDaniel made the following conclusions after his examination of Ms. Nugent:

(1) No abnormalities in her lower back;

(2) Although she had "a slight restriction of rotation and side-to-side bending" of her neck, the objective tests of her neck were essentially normal;

(3) Her Carpal Tunnel Syndrome was not related to the first accident (or any other accident);

(4) Her complaints of injuries were not consistent with any long standing cervical injuries;

(5) A slight bulge in her neck vertebrae would not account for her complaints of pain; and,

(6) There was no evidence that an orthopedic or neurological injury persists.

Given the foregoing conclusions, it stands to reason that had the jury chosen to believe the testimony of Dr. McDaniel, Ms. Nugent would have received no compensation whatsoever as it was his conclusion that she was not injured.

This court is well aware of Dr. McDaniel's reputation for testimony that often crosses the border into...