Wainwright v. Fontenot

Decision Date17 October 2000
Docket NumberNo. 00-C-0492.,00-C-0492.
Citation774 So.2d 70
PartiesBert J. WAINWRIGHT, et al. v. Romona FONTENOT, et al.
CourtLouisiana Supreme Court

Jack Etherton Truitt, Metairie, Counsel for Applicant.

James J. Cox, Kevin Louis Camel, Lake Charles, Counsel for Respondent.


At issue in this delictual action is whether a factfinder errs as a matter of law when it declines to award general damages after finding defendant at fault for plaintiffs injuries and awarding special damages for plaintiffs medical expenses. Following a jury trial in the Fourteenth Judicial District Court for the Parish of Calcasieu, the jury completed a Jury Verdict Form in which it found that the conduct of defendant was the legal cause of injuries sustained by plaintiffs' minor child. The jury awarded plaintiff $1,500.00 in medical expenses but no general damages. On appeal, the third circuit concluded that the jury had committed legal error in awarding medical expenses but declining to award general damages for injuries that exhibited objective symptoms. The court then increased the medical expenses award to $7,372.00 and awarded general damages of $40,000.00, Wainwright v. Fontenot, 99-582 (La.App. 3 Cir. 12/8/99), 750 So.2d 1077. We granted writs, 00-0492 (La.4/20/00), 759 So.2d 769, and, finding that there is no inconsistency in the awards made by the jury in this case, now reverse.


In July 1995, there was a late-night grease fire in the kitchen of the Wainwright home. Bert John Wainwright ("Bert"), the father of John Scott Wainwright ("John Scott"), was burned while putting out the fire. Soon thereafter, John Scott began to exhibit signs of stress.1 When John Scott's anxiety did not subside, Bert and John Scott's mother, Jenna Cay Wainwright ("Jenna"), sought counseling for John Scott with Dr. Charles Monlezun, a clinical social worker.

Dr. Monlezun first saw John Scott on February 7, 1996, and diagnosed him with post-traumatic stress disorder. Following several visits with John Scott, Dr. Monlezun referred John Scott to Dr. John Bambanek, a board-certified child psychiatrist. On March 7, 2000, Dr. Bambanek prescribed Prozac2 for John Scott. Dr. Bambanek ordered five milligrams of Prozac once daily, which he testified in his video-taped trial deposition was about one-quarter the normal adult dose of twenty milligrams. The Wainwrights filled Dr. Bamabanek's prescription at a pharmacy operated by Walgreen Louisiana Company, Inc. ("Walgreen").

Walgreen does not dispute that, on March 7, 1996, pharmacist Romona Fontenot ("Fontenot") incorrectly filled the prescription by placing on the label instructions for one dose of twenty milligrams per day rather than the five milligrams per day prescribed by Dr. Bambanek. On the morning of March 9, 1996 Bert gave John Scott his first twenty milligram dose of Prozac. The Wainwrights have argued throughout that, almost immediately thereafter, John Scott's emotional state worsened and that he became increasingly combative and aggressive.

Bert gave John Scott a second twenty milligram dose on the morning of March 10, 1996. Again, the Wainwrights argue, John Scott became irrational and violent, threatening his mother with a fireplace poker and indicating that he would do harm to himself. That same day, Jenna called the Walgreen pharmacy and spoke to the pharmacy manager, Sharon Courrege ("Courrege"). Jenna asked Courrege to confirm that the Wainwrights were giving John Scott the correct dosage by checking Dr. Bambanek's original prescription. Courrege admitted at trial that she did not check the original prescription, but told Jenna that she had done so and that twenty milligrams was the dosage prescribed by Dr. Bambanek.

The following day, March 11, 1996, the Wainwrights gave John Scott a third twenty milligram dose of Prozac. The Wainwrights maintain that John Scott again became combative and violent, ultimately requiring Bert to physically restrain him. That afternoon, the Wainwrights consulted Dr. Monlezun about John Scott's erratic behavior over the weekend. Dr. Monlezun in turn called Dr. Bambanek, who confirmed that he had prescribed only five milligrams of Prozac, not the twenty milligrams indicated on the label printed by Fontenot. The Wainwrights then took John Scott to the Children's Clinic in Lake Charles. John Scott was admitted for observation and testing and released the afternoon of March 12, 1996.

On February 6, 1997, Bert and Jenna Wainwright filed suit, individually and on behalf of John Scott, naming as defendants Fontenot, Walgreen and Kemper National Insurance Company, Walgreen's liability insurer.3 Plaintiffs sought general damages as well as damages for medical expenses, past and future counseling expenses, and loss of consortium for both Bert and Jenna, all of which they urged stemmed from Walgreen's negligence in filling the prescription and John Scott's subsequent overdose. They also urged that John Scott's academic performance had suffered as a result of the overdose. The case was tried to a jury in the Fourteenth Judicial District Court for the Parish of Calcasieu. In its answers to a Jury Verdict Form, the jury found that Walgreen's conduct was the legal cause of the injuries to John Scott, assessing 99% of the fault to Walgreen and 1% to Bert. The jury awarded plaintiffs $1,500.00 in medical expenses, but declined to award general damages for John Scott or loss of consortium damages to Bert and Jenna. The jury also declined to make any award for future counseling or tutorial expenses.4

Plaintiffs timely appealed to the third circuit, urging that the jury erred in awarding inadequate medical expenses, in assigning fault to Bert, and in failing to award general damages, future counseling and tutorial expenses, and loss of consortium damages. In a published opinion, the third circuit panel amended the trial court judgment, increasing the medical expenses award from $1,500.00 to $7,372.00.5 The court of appeal also awarded general damages for John Scott's injuries, finding that it was legal error for the jury to award medical expenses while declining to award general damages for injuries that presented objective symptoms. Wainwright, 750 So.2d at 1081 (citing Bowers v. Viator, 625 So.2d 355 (La.App. 3 Cir.1993),

writ denied

93-3023 (La.2/4/94), 633 So.2d 171; Schlette v. Washington, 99-0234 (La.App. 4 Cir. 9/22/99), 752 So.2d 197).

In assessing quantum, the court of appeal reasoned that "when the trier of fact fails to award damages, the abuse of discretion standard does not apply. Rather, an appellate court reviews the quantum issue de novo." Wainwright, 750 So.2d at 1081

(citing Mart v. Hill, 505 So.2d 1120 (La.1987); Phelps v. White, 94-267 (La. App. 3 Cir. 10/5/94), 645 So.2d 698,

writ denied,

95-151 (La. 3/17/95), 651 So.2d 272). The majority of the three-judge panel concluded that, based on the trial testimony as to the negative effect of the overdose on John Scott, a general damages award of $40,000.00 was warranted. Wainwright, 750 So.2d at 1083.

One judge concurred in part and dissented in part. He agreed with the majority that the jury had erred in refusing to grant general damages in this case, but dissented as to the increased medical expenses award and the amount of the majority's general damages award. Id. at 1085. In his view, plaintiffs were entitled to "a general damage award of no more than $2,500 for this regrettable but minor episode." Id.


The fundamental principle of tort liability in Louisiana is that "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." La. Civ.Code art. 2315. Thus, in a negligence action under article 2315, the plaintiff bears the burden of proving fault, causation and damages. Buckley v. Exxon Corp., 390 So.2d 512, 514 (La.1980). "One injured through the fault of another is entitled to full indemnification for damages caused thereby." State Farm Mut. Auto. Ins. Co. v. Berthelot, 98-1011 (La.4/13/99), 732 So.2d 1230, 1234. "[A] defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct." American Motorist Ins. Co. v. American Rent-All, Inc., 579 So.2d 429, 433 (La.1991).

The term "damages" refers to "pecuniary compensation, recompense, or satisfaction for an injury sustained." Fogle v. Feazel, 201 La. 899, 10 So.2d 695, 698 (1942). The most common type of damages in the delictual context is compensatory damages, which encompasses those damages "designed to place the plaintiff in the position in which he would have been if the tort had not been committed." Frank L. Maraist & Thomas C. Galligan, Jr., LOUISIANA TORT LAW § 7-1 (Michie 1996) (footnotes omitted).

Compensatory damages are further divided into the broad categories of special damages and general damages. "Special damages are those which either must be specially pled or have a `ready market value,' i.e., the amount of the damages supposedly can be determined with relative certainty." Id. § 7-2 (footnotes omitted). Included under the heading of special damages are the plaintiff's medical expenses incurred as a result of the tort. 1 DAMAGES IN TORT ACTIONS § 3.02[2][c][i] (Matthew Bender 2000). On the other hand, "[g]eneral damages are those which are inherently speculative in nature and cannot be fixed with mathematical certainty. These include pain and suffering[.]" Maraist & Galligan, supra, § 7-2.

The assessment of "quantum," or the appropriate amount of damages, by a trial judge or jury is a determination of fact, one entitled to great deference on review. As such, "the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact." Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993). Moreover,

before a Court of Appeal can disturb an award made by a [factfinder,] the

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