Menard v. Lafayette Ins. Co.
| Decision Date | 16 March 2010 |
| Docket Number | No. 2009-C-1869.,2009-C-1869. |
| Citation | 31 So.3d 996 |
| Parties | Shannon MENARD et al. v. LAFAYETTE INSURANCE COMPANY et al. |
| Court | Louisiana Supreme Court |
31 So.3d 996
Shannon MENARD et al.
v.
LAFAYETTE INSURANCE COMPANY et al.
No. 2009-C-1869.
Supreme Court of Louisiana.
March 16, 2010.
COPYRIGHT MATERIAL OMITTED
COPYRIGHT MATERIAL OMITTED
Landry, Watkins, Repaske & Breaux, David Y. Lamm, Edward Paul Landry, New Iberia, for Applicant.
Thomas Anthony Budetti, Lafayette, Christine M. Mire, APLC, Christine Marie Mire, Abbeville, The Toce Firm, APLC, Andre F. Toce, Lafayette, for Respondent.
KNOLL, Justice.*
This writ concerns whether the Court of Appeal correctly applied the manifest error standard of review in increasing the jury's award for future medical expenses in this personal injury case. Plaintiff, Shannon Menard (Menard), filed the instant suit against defendants, Lafayette Insurance Company (Lafayette Ins.), Prejean Service Company, Inc. (Prejean), and Scott Benjamin Buxton (Buxton), for damages she sustained as a result of an automobile accident.1 The jury rendered judgment in plaintiff's favor awarding her $88,373.73 for future medical expenses. Finding manifest error in the jury's award for future medical expenses, the appellate court increased the award to $1,413,508.75.
On May 8, 2001, at approximately 5:40 p.m., Ms. Menard's 1993 Honda Accord was stopped at a red light on Louisiana Highway 3095 in Lafayette, Louisiana. At about this time, a 1995 Chevrolet Model 6000 two-door pick-up truck driven by Buxton, who was in the course and scope of his employment with Prejean, rear-ended a 1998 Volvo S70, which vehicle in turn rear-ended Ms. Menard's vehicle. Immediately following the accident, Ms. Menard was taken by ambulance to the emergency room at the Medical Center of Southwest Louisiana. Ms. Menard subsequently sought treatment from Dr. Michael R. Cavanaugh, Dr. Thomas J. Montgomery, Dr. James N. Domingue, Dr. James A. Pearce, and Dr. Scott A. Gammel for head, jaw, neck, back, shoulder, and knee complaints. Ms. Menard was thirty-three years of age at the time of the accident.
Ms. Menard filed suit against Buxton, Prejean, and their insurer, Lafayette Ins., for damages she sustained as a result of the accident.2 In her petition, Ms. Menard alleged, in pertinent part:
As a result of this accident, Plaintiff... was caused to sustain severe and painful personal injuries to bones, muscles, ligaments, tendons, nerves, blood vessels and other structure of her head, neck, back, right knee, arms and other parts of her body, including, but not limited to, cervical and lumbar strain and sprain; injuries to her face; injuries to the nervous system and psyche and other systems of the body, resulting in extreme anxiety, pain and suffering; and the aggravation and exacerbation of prior existing, non-disabling predispositions, including normal degenerative changes.
* * *
She has incurred medical, hospital, and related expenses; and may require hospital, medical and related care, including surgery in the future. These conditions will continue and may worsen.
Before trial, defendants stipulated to liability and insurance coverage. The matter proceeded to jury trial on June 23, 2008,3 solely on the issue of damages. Only the award for future medical expenses is strongly disputed before us. In her case-in-chief, Ms. Menard presented the testimony of two of her treating physicians, Dr.
Testimony of Dr. James A. Pearce
Dr. James A. Pearce, a dentist, who specializes in patients with temporomandibular joint disorders (TMJ) and orificial pain, testified via video disposition he began treating Ms. Menard on October 31, 2001, for TMJ and last saw her professionally on December 3, 2007, approximately seven months before the beginning of trial. He testified her TMJ condition was caused more probably than not by the accident sued upon, but bruxism or grinding of the teeth is a well-known cause of TMJ. His records noted excessive attrition or wearing of her teeth, which could have probably caused a bruxism condition years before the accident. He further testified she will more probably than not be required to wear a splint for the indefinite future, which splint will have to be replaced, retooled, or resurfaced every five to six years. He estimated the following costs of care: $750 for splints every 5 to 6 years, $100 for retooling, $75 to $100 for yearly doctor visits, and $75 for a Panorex "maybe" every 5 years. According to his testimony, plaintiff's treatment would require no muscle relaxers or physical therapy, and at the time of trial, she was at maximum medical improvement, stable, and asymptomatic.
Testimony of Dr. Scott A. Gammel
Dr. Scott Gammel, an anesthesiologist with a specialty in the treatment of chronic pain and board certified in anesthesiology and pain management, testified he had been treating Ms. Menard upon referral from her attorney since February 13, 2003, for cervical and lumbar spine injuries. He opined as a result of the accident Ms. Menard suffered spinal column injuries to multiple levels of the motion sections of her back and neck. During his treatment, Ms. Menard received eight epidural spinal injections, one radiofrequency neural ablation,4 and three cervical facet injections. Although he recited the potential side effects of steroid injections at the injection site, such as, pain, infection of soft tissue, and loss of skin color, he noted Ms. Menard has shown no signs of these symptoms. He testified Ms. Menard will need treatment for the rest of her life to control her pain, which treatment he estimated or anticipated will include at a minimum four doctor visits, two six-week sessions of physical therapy, four epidural spinal injections, and one radiofrequency neural ablation per year; an MRI more than every two years depending on symptomatology; and a lifetime of medications, including Lortab, Percocet, Lexapro, Lidoderm patches, and Voltaren gel. Although he believed future surgery was a possibility, Dr. Gammel could not say it was more probable than not.
Regarding objective signs of Ms. Menard's cervical lumbar spine injuries, Dr. Gammel referenced Ms. Menard's x-rays taken in the hospital on May 8, 2001, immediately following the accident, the report of which indicated "mild reversal of the cervical curvature compatible with spasms." He also noted Ms. Menard's MRIs showed mild narrowing of the right
On cross-examination, Dr. Gammel admitted normal findings could be interpreted from a layman's standpoint as a negative finding, there was no evidence of nerve root impingement, disk bulges are not surprising in a woman of Ms. Menard's age, and "over time we all will have degenerative disk disease." He also explained his records noted Ms. Menard was on no medication when she began her treatment with him, Ms. Menard actually waited six months between visits after a steroid injection and was instructed to return as needed, and by her December 9, 2005 visit, Ms. Menard's neck symptoms had improved to such a point he was not going to do another radiofrequency neural ablation. The focus of treatment then turned to the lumbar spine.
Testimony of Dr. Doug Womack
Dr. Doug Womack, an economist and a retired professor of economics at the University of Louisiana, testified concerning the present-day value of Ms. Menard's future medical needs. He reached his conclusions by assuming a life expectancy of 41.44 years, accepting the testimony of Dr. Gammel concerning the need for and cost of future care, and assuming Ms. Menard would require no surgery in the future. Dr. Womack testified his initial calculations admitted into the record as Menard's Exhibit 8 were based on a phone conversation with Dr. Gammel and provided the following medical expenses based on the category of treatment:
Doctor visits (Dr. Gammel) ................... $ 22,884
(90 x 4/yr=360/yr)
Physical Therapy ............................. $ 228,843
(150 x 24/yr = 3,600/yr)
Lortab/Percocet .............................. $ 34,612
(P 45/mo L 68/mo = $678/yr ave)
Mobic/EC Naproxen-muscle relaxers ............ $ 47,171
(M 80/mo N 74/mo = 924/yr ave)
Lexapro ...................................... $ 63,711
(104/mo = $1,248 yr)
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