260 So. 3d 658
La. Ct. App.2018Background
- December 3, 2012 auto collision in New Orleans: Lichtenstein ran a red light and struck McBride's car; McBride (age 80) and granddaughter Dynte Moore injured.
- Jury found Lichtenstein solely liable and awarded substantial general and special damages to McBride and Moore; appellants (Lichtenstein and his insurer) appeal damages only and moved JNOV/new trial (denied).
- Medical evidence conflicted: ER CTs showed no acute traumatic findings; later MRIs and treating physician (Dr. Hamsa) concluded aggravation of pre-existing degenerative spinal disease requiring possible future surgery; defense IME (Dr. Robert) attributed condition primarily to preexisting degeneration and found no clear radiographic evidence of traumatic change.
- Lay witnesses (family) testified McBride was active pre-accident and declined markedly after the accident; Moore testified regarding persistent headaches, back/neck pain, scar and loss of athletic/academic functioning.
- Trial court excluded a non-testifying physician’s written cost estimates and granted a directed verdict removing future medical expenses from the jury form; on appeal the court found that partial directed verdict erroneous and amended judgment to award $10,000 for McBride’s future medical expenses, but otherwise affirmed the jury verdict and denial of new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McBride proved aggravation of pre-existing condition and quantum excessive | McBride: treating physician and lay witnesses show accident aggravated degenerative spine disease, causing ongoing disability and need for future surgery; damages supported | Appellants: medical records/IMEs show longstanding degenerative disease, little objective evidence linking accident to deterioration; awards excessive | Court upheld jury’s factual finding that aggravation occurred—treating physician credited; damage awards not manifestly erroneous |
| Adequacy of evidence for Moore’s disfigurement and loss of enjoyment of life | Moore: visible forehead scar, permanent, affected self-image, athletic/academic decline—supports disfigurement and loss of enjoyment awards | Appellants: scar not painful; improvement possible with surgery; limited psychological impact; awards excessive | Court found scar met disfigurement definition and lifestyle change proven; awards within jury discretion |
| Denial of motion for new trial / standard applied | Appellants: trial court applied wrong standard, should have granted new trial under La. C.C.P. arts. 1972/1973 because verdict unsupported by evidence | Appellees: procedural arguments but court may review interlocutory rulings as part of final judgment appeal | Court held trial judge did not misapply standard; no abuse of discretion in denying new trial |
| Exclusion of future medical expense award and exclusion of physician cost letter | McBride: future decompression/fusion testified to by treating and IME; ballpark cost evidence (IME) and other record elements suffice to let jury decide amount; letter excluded procedurally but costs could be proven | Appellants: no admissible evidence of specific future procedures or costs; letter inadmissible hearsay and untimely | Court reversed directed verdict removing future medicals. Under Stiles/Kaiser standards, awarded $10,000 as reasonable minimum for future medicals; exclusion of the unsigned cost letter was not error because no proffer was made |
Key Cases Cited
- Hall v. Folger Coffee Co., 874 So.2d 90 (La. 2004) (standard for appellate review of factual findings)
- Detraz v. Lee, 950 So.2d 557 (La. 2007) (manifest error/clearly wrong standard explained)
- Rogers v. State ex rel. Dep’t of Transp. & Dev., 813 So.2d 495 (La. App. 4 Cir. 2002) (elements for general damages)
- Ryan v. Zurich Am. Ins. Co., 988 So.2d 214 (La. 2008) (credibility of expert testimony and factfinder deference)
- Wainwright v. Fontenot, 774 So.2d 70 (La. 2000) (appellate role in reviewing quantum)
- Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La. 1993) (deference to trier of fact on damages)
- Stiles v. K-Mart Corp., 597 So.2d 1012 (La. 1992) (future medicals may be awarded where necessity shown and cost can be reasonably estimated)
- Kaiser v. Hardin, 953 So.2d 802 (La. 2007) (standard for appellate alteration of jury findings on special damages)
- Rosell v. ESCO, 549 So.2d 840 (La. 1989) (appellate review of credibility determinations)