95 2044 La.App. 1 Cir. 5/10/96, Spangler v. Wal-Mart Stores, Inc.

• Decision Date: 10 May 1996
• Citation: 673 So.2d 676
• Parties: 95 2044 La.App. 1 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 676

673 So.2d 676

95 2044 La.App. 1 Cir. 5/10/96

Kathleen SPANGLER and John Spangler v. WAL-MART STORES, INC., et al.

No. 95 CA 2044.

Court of Appeal of Louisiana First Circuit.

May 10, 1996.

Charest Thibaut, III, John S. Thibaut, Jr., Baton Rouge, and Al LeBlanc, Maringouin, for Plaintiffs-Appellants Kathleen Spangler and John Spangler.

John Swift and Kyle L. Gideon, Lafayette, for Defendants-Appellees Wal-Mart Stores, Inc., National Union Fire Ins. Co. of Pittsburgh, Pennsylvania.

Before LeBLANC, WHIPPLE and FOGG, JJ.

[95 2044 La.App. 1 Cir. 2] FOGG, Judge.

In this personal injury action the plaintiffs, Kathleen and John Spangler, appeal a judgment in their favor, raising solely the issue of quantum. We amend, and affirm as amended.

On June 14, 1991, Kathleen Spangler and her husband, John Spangler, went to Wal-Mart in Zachary, Louisiana. After choosing their purchases, but prior to paying for them, both Spanglers decided to use the restroom facilities. After Mr. Spangler was finished using the restroom he waited in the hall for his wife. While waiting, he noticed dark stains on the floor leading from the women's restroom. Shortly thereafter he heard his wife call his name and he eased the door to the women's restroom open and saw his wife on the floor. As he assisted his wife, he noticed a red substance on the floor and a crushed cup underneath his wife. Mrs. Spangler stated that after she finished using the restroom she was walking toward the sink when she slipped, fell on her back and hit her head on the bathroom stall.

The Spanglers did not notify anyone at Wal-Mart about the fall before they left the store. However, once they returned home Mrs. Spangler noticed that she had lost a ring so she called the store and informed Mr. Sones, the assistant manager, of the slip and fall and asked him to look for her ring. Mr. Sones then took pictures of the floor and filled out an accident report. He also asked several female employees to check out the restroom for him. None of the Wal-Mart employees reported any red substance on the floor. However, one employee did testify that she noticed that the floor did look wet when she checked it. Mr. Harry Scott, Jr., a stock clerk at the time of the accident, testified that on the day of the accident Mr. Sones told him to clean up a spill in the women's restroom and, although he could not remember the color, he did clean up a liquid spill.

On the night of the accident, due to the pain his wife was experiencing, Mr. Spangler took her to Lane Memorial Hospital where she was treated and told to see her own physician. Her family doctor treated her for a short while then recommended that she see [95 2044 La.App. 1 Cir. 3] an orthopedic specialist. Mrs. Spangler saw Dr. Herbert Plauche who diagnosed a fractured tail bone. She then saw Dr. John Watermeier, another orthopedist.

Dr. Watermeier ordered an MRI, CAT Scan and thermogram. He also ordered physical therapy and medication to help her with the pain. When those did not decrease the pain, he ordered a myelogram and discogram. As a result of the tests, he performed an anterior cervical fusion. Even after the operation, Mrs. Spangler continued to complain of pain. After further tests, Dr. Watermeier performed a bilateral sacroiliac joint fusion. Mrs. Spangler still complained of pain in her neck and further tests were ordered. Dr. Watermeier then performed a posterior cervical fusion. Still Mrs. Spangler complained of pain and more tests were ordered, after which Dr. Watermeier performed a lumbar fusion.

Mrs. Spangler then sought the treatment of Dr. Ward, a rehabilitation and pain management doctor, and Dr. Nicholson, an orthopedic surgeon. Dr. Nicholson determined that the previous lumbar and posterior cervical fusions had not been successful and he revised the lumbar fusion in her lower back at which time he inserted a battery operated internal bone stimulator to aid in the healing process.

Mrs. Spangler filed suit for damages; therein, Mr. Spangler sought to recover for loss of consortium. At trial in this matter, the jury awarded Mrs. Spangler $64,000 for physical pain and suffering; $25,000 for past and future lost earnings and $186,000 for past medical expenses. ¹ The plaintiffs appeal the amounts awarded by the jury to Mrs. Spangler for her injuries and the failure to award loss of consortium to Mr. Spangler.

In their first assignment of error, the plaintiffs assert that the trial court committed manifest error by refusing to exclude testimony from defendants' expert that Mrs. Spangler's doctors performed unnecessary or inappropriate treatment.

[95 2044 La.App. 1 Cir. 4] Plaintiffs filed a Motion in Limine to prohibit Wal-Mart from introducing evidence that the surgeries Mrs. Spangler underwent were unnecessary or inappropriate. In their Memorandum in Opposition to Plaintiffs' Motion in Limine, the defendants acknowledged that the law cited by plaintiffs was correct. However, they argued that they had the right to put on evidence of bad faith on the part of Mrs. Spangler. That motion was denied and Dr. Johnston, an orthopedist hired by Wal-Mart, was allowed to testify that in his opinion the surgeries were inappropriate and unnecessary. As a basis for his opinion, Dr. Johnston reviewed Mrs. Spangler's medical records and examined her on two occasions. Dr. Johnston testified extensively about the surgeries Mrs. Spangler underwent prior to the accident at issue. Dr. Johnston opined that Mrs. Spangler's pain was a product of "secondary gain," that is pain exhibited by an injured person in order to reap some benefit. The plaintiffs argue that this testimony was very prejudicial and affected the jury's award of damages.

It is well established that a tortfeasor is liable for unnecessary treatment or over treatment unless the tortfeasor can show that the plaintiff underwent the treatment in bad faith. Sutton v. Lambert, 94-2301 (La.App. 1 Cir. 6/23/95), 657 So.2d 697, writ denied, 95-1859 (La. 11/3/95), 661 So.2d 1384; Use v. Use, as corrected on limited grant of rehearing, 94-0972 (La.App. 1 Cir. 6/6/95), 654 So.2d 1355, writs denied, 95-1834 and 95-1879 (La. 11/13/95), 662 So.2d 468. The reason for the rule is that as between the victim and the tortfeasor the basic cause for the excessive expense of treatment is attributable to the party whose fault caused the injury rather than the victim. Tyler v. Richardson, 476 So.2d 899 (La.App. 2 Cir.), writ denied, 478 So.2d 907 (La.1985); Hillebrandt v. Holsum Bakeries, 267 So.2d 608 (La.App. 4 Cir.1972).

In the instant case, the jury awarded the full amount of medical expenses, thereby distinguishing this case from those cited by the plaintiffs. It is clear that if the jury had determined that Mrs. Spangler acted in bad faith in undergoing medical [95 2044 La.App. 1 Cir. 5] treatment, they would not have awarded the full amount of medical expenses. Plaintiffs cite Lasha v. Olin Corp., 625 So.2d 1002 (La.1993), for the proposition that a tortfeasor is liable not only for the injuries which he causes directly to the tort victim, but also for additional suffering caused by inappropriate medical treatment. Although true, that legal precept is inapplicable to the instant case because, by awarding the full amount of medical expenses, the jury did not find the medical treatment inappropriate.

The plaintiffs further assert that the jury abused its discretion by failing to award damages to adequately compensate Mrs. Spangler for her injuries. After the accident on June 14, 1991, Mrs. Spangler underwent five surgeries. Four were performed by Dr. Watermeier and include an anterior cervical fusion, a bilateral sacroiliac joint fusion, a posterior cervical fusion and a lumbar fusion. The fifth surgery was performed by Dr. Nicholson, who revised the lumbar fusion in her lower back and inserted a battery operated internal bone stimulator.

The correct standard for appellate review of a damage award is clear abuse of discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337 (La.1993). In reviewing a damage award, we must review the evidence in the light which most favorably supports the judgment and make an articulated analysis of the facts and circumstances peculiar to the plaintiff's case. If that analysis discloses an abuse of discretion, i.e., that the award is below that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances, we may raise the award only to the lowest amount reasonably within the trier of fact's discretion. Theriot, 625 So.2d at 1340; Domangue v. Mr. Gatti's, 93-2392 (La.App. 1 Cir. 6/23/95), 657 So.2d 689.

The sufficiency or insufficiency of an award turns upon the facts and circumstances peculiar to that particular case; our inquiry is whether the award for those injuries and their effect upon those claiming to have been damaged is a clear abuse of the [95 2044 La.App. 1 Cir. 6] much discretion vested in the finder of fact. Higley v. Kramer, 581 So.2d 273 (La.App. 1 Cir.), writ denied, 583 So.2d 483 (La.1991); Fruge v. Thornhill, 560 So.2d 909 (La.App. 1 Cir.), writ denied, 567 So.2d 618 (La.1990). Under the evidence presented, including the number and nature of the surgeries performed, we find that the jury's award of $64,000 for physical pain and suffering was an abuse of discretion...