Mitchell v. Access Med. Supplies, Inc.

• Decision Date: 09 November 2015
• Docket Number: No. 2015 CA 0305.,2015 CA 0305.
• Citation: 184 So.3d 118
• Parties: Arthur MITCHELL v. ACCESS MEDICAL SUPPLIES, INC., Jacob Simmons, Terrebonne Parish Consolidated Government, and Lillie Smith.
• Court: Court of Appeal of Louisiana — District of US

184 So.3d 118

Arthur MITCHELL

v.ACCESS MEDICAL SUPPLIES, INC., Jacob Simmons, Terrebonne Parish Consolidated Government, and Lillie Smith.

No. 2015 CA 0305.

Court of Appeal of Louisiana, First Circuit.

Nov. 9, 2015.

Laurence Cohen, New Orleans, LA, for Plaintiff/Appellant, Arthur Mitchell.

Meri M. Hartley, James L. Donovan, Jr., Metairie, LA, for Defendants/Appellees, Jacob Simmons and Allstate Insurance Company.

Kentley R. Fairchild, Houma, LA, for Defendants/Appellees, Terrebonne Parish Consolidated Government and Lillie Smith.

Before PETTIGREW, HIGGINBOTHAM and CRAIN, JJ.

CRAIN, J.

In this personal injury suit, the plaintiff appeals contending that the jury's general damage award is inadequate. We affirm.

FACTS

On January 23, 2012, the plaintiff, Arthur Mitchell, was a passenger on a public bus owned and operated by the Terrebonne Parish Consolidated Government. The bus was travelling north on Lafayette Street in Houma, behind a vehicle driven by Jacob Simmons. The Simmons vehicle crossed the center line of the two-lane street, then suddenly turned to the right to enter an adjacent parking lot, crossing in front of the bus. The bus driver braked and avoided a collision between the bus and the Simmons vehicle.

Mitchell instituted the instant suit for damages, claiming that the sudden stop of the bus caused him to be thrown forward into a large change box located behind the bus driver's seat. He further claimed that the impact with the change box caused severe injuries to his neck, back, body, and mind. Mitchell's claims against Simmons and Simmons' insurer were tried to a jury, while Mitchell's claims against the bus driver and the Terrebonne Parish Consolidated Government were simultaneously tried to the trial court. Both the jury and trial court found that Simmons was solely at fault in causing the incident. The jury awarded Mitchell past medical expenses in the amount of $13,718.00, future medical expenses in the amount of $1,000.00, and general damages in the amount of $1,000.00 for past pain and suffering, with no recovery for future pain and suffering or loss of enjoyment of life. Mitchell now appeals, contending the general damage award by the jury is inadequate.

DISCUSSION

Mitchell argues that it is "plain and simple" that the jury abused its discretion when it failed to award any meaningful amount for general damages despite awarding all of the special damages incurred by him. Mitchell argues that this state's jurisprudence clearly establishes that where a jury awards medical bills for injuries that certainly were accompanied by pain and discomfort, it is error for the jury not to award compensation for that pain.

A person injured through the fault of another is entitled to full indemnification for his resulting damages. La. Civ.Code art. 2315 ; Wainwright v. Fontenot, 00–0492 (La.10/17/00), 774 So.2d 70, 74. It is the plaintiff's burden to prove, by a preponderance of the evidence, the damages he suffered as a result of the defendant's fault. Wainwright, 774 So.2d at 77. A jury is afforded great discretion in assessing the appropriate amount of damages to adequately compensate a plaintiff. See La. Civ.Code art. 2324.1 ; Guillory v. Lee, 09–0075 (La.6/26/09), 16 So.3d 1104, 1116.

General damages are intended to compensate an injured plaintiff for mental or physical pain and suffering, inconvenience, loss of gratification or intellectual or physical enjoyment, or other losses of lifestyle. See Thongsavanh v. Schexnayder, 09–1462 (La.App. 1 Cir. 5/7/10), 40 So.3d 989, 1001, writ denied, 10–1295 (La.9/24/10), 45 So.3d 1074. They are inherently speculative in nature and cannot be fixed with mathematical certainty. Miller v. LAMMICO, 07–1352 (La.1/16/08), 973 So.2d 693, 711. Since the jury is in the best position to evaluate witness credibility and see the evidence firsthand, it is afforded much discretion in independently assessing the facts and rendering an award. Id.

On appeal, the role of the appellate court is to review the exercise of discretion by the jury, not to decide what it considers to be an appropriate award. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). It is only when the award is, in either direction, 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 or reduce the award. Youn, 623 So.2d at 1261. Only after it is determined that there has been an abuse of discretion is a resort to prior awards appropriate, and then only to determine the highest or lowest point of an award within that discretion. Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1976) ; Aymami v. St. Tammany Parish Hospital Service District No. 1, 13–1034 (La.App. 1 Cir. 5/7/14), 145 So.3d 439, 448. In reviewing a general damages award a court does not review a particular item in isolation; rather, the entire general damages award is reviewed for abuse of discretion. Aymami, 145 So.3d at 448.

The evidence presented to the jury included a video recording of the inside of the bus as the incident occurred. Directly behind the bus driver's seat was the large metal box described by Mitchell as "the change box." Behind that was a row of seats along the side of the bus facing inward. Mitchell sat in the first row of forward-facing seats. The only other passenger on the bus was seated further back. The video shows Simmons' vehicle turn directly in front of the bus and the bus driver brake to avoid a collision. As the bus stopped, Mitchell moved forward out of his seat, hitting against the change box. He returned to his seat, then moved to recline on one of the inward facing seats. The video contains audio, and Mitchell acknowledged at trial that as he struck the change box, he can be heard stating "I need some money." When the bus driver asked him if he was hurt, Mitchell responded that he was. Mitchell then stated that he needed "a report" so he could contact a lawyer and requested an ambulance.

Mitchell was transported by ambulance to Terrebonne General Hospital, where he complained of neck and back pain. An x-ray of his thoracic spine was taken, and Mitchell was discharged with medication and instructions for treatment of muscle strain. Approximately one week later, Mitchell began chiropractic treatment with Dr. Gregory Pizzolato. During the course of that treatment, which included eighty-eight office visits, two MRI scans were performed and Mitchell was sent for a neurosurgical consultation with Dr. Deepak Awasthi. Mitchell testified that he was not interested in having any surgery recommended by Dr. Awasthi, opting instead to continue treating his injuries with pain medication. Mitchell explained that he improved as a result of Dr. Pizzolato's treatment, but every now and then his back "really hurts."

At trial, it was revealed that Mitchell had given inaccurate histories to the medical providers who treated him for the injuries he allegedly sustained as a result of the bus incident. For example, Mitchell did not disclose that he experienced seizures and had been diagnosed with seizure disorder as far back as 2000. Nor did Mitchell inform Dr. Pizzolato that he suffered a seizure in December 2012, which caused him to fall on his back, for which he was treated at the neurology clinic of the Leonard J. Chabert Medical Center, although he saw...