Larry WILLIAMS, Sr., as Administrator of the Estate of his minor daughter, Cathy
v.
Jack V. HARVEY, as Administrator of the Estate of his minor daughter, Kerri Harvey.
Court of Appeal of Louisiana, Fourth Circuit.
*903 Daniel E. Becnel, Jr., Reserve, for plaintiff-appellee.
Frederick S. Haygood, G. Michael Bourgeois, Metairie, for defendant-appellant.
Before SAMUEL, MORIAL and BEER, JJ.
BEER, Judge.
Plaintiff-appellee, Larry Williams, Sr., instituted suit in behalf of his minor daughter, Cathy Williams, seeking to recover damages for injuries she sustained as a result of the alleged negligence of Kerri Harvey, daughter of Jack V. Harvey, defendant-appellant. From a judgment awarding damages in the amount of $31,080.50 defendant-appellant appeals.
On July 19, 1974 teenagers Cathy Williams, Kerri Harvey and Leslie Cox were en route to a dance in Lutcher, Louisiana. Kerri was driving her father's 1973 Mazda automobile. As they approached the intersection of Louisiana 53 (on which they were proceeding) and Airline Highway, Kerri drove across the railroad tracks that parallel Airline Highway "faster than normal." Although she saw a vehicle directly ahead of them proceeding in the same direction, Kerri took her eyes off the road at that moment in order to adjust her ring. When she looked up it was too late to prevent the rear end collision that immediately followed.
LIABILITY
On appeal, defendant-appellant does not seriously challenge the jury's finding of Kerri's negligence, nor is there any evidence in the record sufficient to rebut the presumption of negligence which clearly results from these undisputed facts. Rodriguez v. Trebitz,
An injured guest passenger does not forfeit his right to recover because of his failure to use a seat belt. Lawrence v. Westchester Fire Ins. Co.,
QUANTUM AND RELATED MATTERS
Cathy's physical injuries resulting from the accident included flying glass cuts upon her forehead, cheeks, nose, eyelids and knees and a sufficiently hard blow to her head to cause some swelling which eventually subsided without apparent complications. Immediately after the accident she was seen by Dr. Joseph LaNasa. He felt that the lesions on her face were superficial and without need for any sutures. She saw Dr. Robert Albrecht three days after the accident. He found a number of facial abrasions, especially above her right eye, on the bridge of her nose, and on the left side of her upper lip. He noted that healing was "very satisfactory" and found no evidence of infection.
She was then seen by Dr. Herbert B. Christianson who referred her to Dr. J. Michael Kelly, a plastic surgeon.
Cathy first saw Dr. Kelly on August 21, 1974. He observed that there was a scar on her nose approximately one-half to three-fourths inch in length and three-eighths inch wide with a one to two millimeter elevation. He also observed that it did not conform to the normal concavity of the nasal bridge. He observed that a scar on her upper lip obscured the "vermillion border." It was prominent and extended up into her lip about one-half inch. He noted several minor scar areas on her right cheek which he described as having a cobblestone effect. In the area of the right eyelid he noted a scar about three and one-half centimeters that extended up to her right temple. This apparently created two "folds" in her right eyelid and caused some elevation of the eyelid.
Under a general anesthesia Dr. Kelly performed surgical excision and removal of the scars on Cathy's lip and nose and, by dermabrasion, the removal of the right cheek scarring. The eyelid scars were also surgically removed. The redness of the plaintiff's complexion which temporarily existed after the operation was an anticipated postoperative effect of two to three months duration.
Dr. Kelly indicated that dermabrasion can be a fairly painful process. Cathy did experience some pain for which Tylenol III was prescribed during her hospital stay from September 2 through 7, 1974. Dr. Kelly further indicated that the dermabrasion associated pain would, essentially, subside when the scab fell off within three to seven days after the procedure. The pain associated with the surgical excision would subside on removal of the stiches which took place soon after the operation. He also testified that the pain associated with the original trauma occasioned by the collision would have probably lasted from three days to two weeks. He also observed that Cathy overreacted to postoperative discomfort and pain and testified that she was not as cooperative as she might have been. He felt that additional corrective surgery might be required to narrow the width of the nose and lip scars and further indicated that some evidence of the scarring was permanent in nature; it could be improved, but not completely erased, although makeup would reduce same to negligible proportions.
On her attorney's recommendation, Cathy began seeing Dr. Charles R. Smith, a psychiatrist, on October 3, 1974. He found that she was obsessed with her face and *905 physical appearance and that this was causing nervous manifestations such as stomach upset, loss of weight and sleep disturbances. He concluded that Cathy had apparently exhibited essentially normal adolescent behavior prior to the accident, and thus believed that her post-accident depression, which was out of the range of normal behavior, was a direct result of the accident. Basically he felt that the accident had accentuated earlier patterns of nervousness and questioning of self worth which were not originally symptomatic. In other words, the post-accident scarring confirmed and deepened latent fears of worthlessness and not being lovable or attractive to others.
Cathy's mother had related to the doctor that her daughter's disposition changed after the accident. She was irritable and prone to just sitting at home and looking at her face in the mirror. She brooded and cried and did not want to attend school. After the accident, she observed her daughter had difficulty in sleeping through the night.
Cathy began seeing Dr. Elizabeth McDermy in December, 1974. Dr. McDermy noted that Cathy had a mild to moderate case of acne which had apparently preexisted the accident but observed that acne could be aggravated by stress. On her last visit in February 1975, her face had cleared.
LSA-C.C. Article 1934(3) establishes, in pertinent part, that:
"In the assessment of damages under this rule, as well as in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury . . .."
See Molton v. Avrard,
The full force and effect of this article's import was set forth by the Supreme Court in Miller v. Thomas,
"The pain associated with the injuries, the facial scars, and the psychological effect of these scars are all factors to be considered in the award of damages."
The court therein also restated the rule that prior jurisprudence exerts no absolute control over an award of damages made by the trier of the case and is simply a guide in evaluating whether the trier's discretion is abused. See Taylor v. Rome,
In Knotts v. Employers Casualty Co., 177 So.2d 630 (La.App.3rd Cir. 1965) plaintiff was a single, twenty-three year old beauty queen and former college student who was thrown violently forward into a windshield when the car in which she was a passenger had a head-on collision with another vehicle. After the accident, she was in the hospital for six days. While in the hospital her four lower teeth, which had been loosened, were removed and her gum was sutured. The four upper teeth, which had been loosened by the blow, were manually forced back into the jawbone. After she was released from the hospital, she began a program of prolonged and painful dental treatment. The lower gum had to be reopened and certain remaining tooth roots and bone fragments removed. The upper teeth eventually died and the nerves from same were removed and the root canals reamed. These four teeth, and one tooth on either side, were ground down to pegs and crowns were applied.
Furthermore, a portion of her lower jawbone, on the inside, was broken off when the teeth were pushed back into the jawbone. The loss of bone and shrinkage *906 of surrounding tissue would necessitate many future changes of the lower bridge and possibly endanger nerves leading to her other lower teeth.
In terms of facial disfigurement it was observed:
"`On the forehead, two scars were present at the junction of the forehead with the hairline on the left side, one an oval area, approximately three quarters of an inch in diameter, which appeared to be a healed abrasion, and the other was a vertically running scar, measuring approximately one inch by one sixteenth of an inch wide, with some elevation of the skin on the inner aspect of the scar,. . . . Next on the eyebrow, three linear inconspicuous areas were present near the inner end of the left eyebrow, the entire area involved measured approximately one half inch by a quarter of an inch. These, as did the one on the forehead, appear[ed] to be something in the nature of a healed abrasion or brush burn. On the nose was a vertical scar, measuring approximately a half an inch in length, which was quite inconspicuous.. . . [O]n the right cheek was a slightly depressed obliquely running scar, measuring one half inch by a sixteenth of an inch in width. On the left cheek was an obliquely running very faint linear scar, one inch in length. . . . [I]n the center of the upper lip, midway between the nose and the free margin of the lip, was an oval pale scar, measuring an eighth of an inch by three sixteenths of an inch. At each corner of the mouth was an obliquely running scar coursing downward and outward from the corner, measuring a half an inch in length by a sixteenth of an inch in width. There was a very slight depression at the outer portion of each scar.. . . [O]n the lower lip, an elevated zone of the free margin of the lower lip was present, slightly to the left of the center line[.] [T]his was due, again[,] to a puckering effect of an inch scar beginning on the outside and curving to the inside of the mouth, throwing the free margin of the lip in a fold. On the skin of the lower lip near the center, was a slightly elevated scar, measuring one eighth of an inch by three eighths of an inch. On the left shoulder, at the junction of the shoulder and the upper arm, was a vertically running scar, slightly depressed, measuring three quarters of an inch by an eighth of an inch wide. On the left leg, just below the left knee, was an obliquely running scar, measuring one and a half inches in length by one quarter inch in width, at this time the scar was flat and red, and there were several prominent stitch marks still present."
Plastic surgery was recommended for the longest scar on the forehead, the obliquely running scar on the right cheek, all scars about the mouth and lip, and the scars on the left shoulder and leg. The treating physician admitted, however, surgery might not help scars on the lower lip.
The Court of Appeal, after reviewing the evidence, affirmed the jury's award of $10,000 for special damages and $45,000 for general damages.
In Freeman v. Wilcox,
In Ermis v. Government Employees Insurance Company,
*907 There was numbness at the corner of the mouth affecting ability to eat and drink. In Orfanello v. Pepsi Cola Bottling Co.,
"Whether the scar is in itself disfiguring or whether its detracting features have been magnified in the plaintiff's mind, it is in either case an injury that has produced mental anguish and is hence compensable."
The plaintiff therein had been nervous and tense since the accident had occurred, had lost weight, and had developed esophagitis, a burning sensation in the esophagus. In Funderburk v. Millers Mutual Fire Ins. Co. of Texas,
The foregoing resume of several recent awards involving injuries somewhat similar to those experienced by Cathy Williams lead to the inescapable conclusion that cases involving scarring and the attendant psychological and physical implications thereof vary through a wide range. Yet, we are constrained to observe that the amount of the award in this case seems to us to be disproportionate to the injuries occasioned notwithstanding the temporary psychological complications that resulted therefrom.
*909 The record is replete with irrelevant and immaterial personal innuendos of all sorts which have no place in these proceedings. They only highlight the antagonism that was obviously precipitated by this litigation. What is also apparent from the record as a whole is the unfortunate fact that an unwitting teenaged girl who experienced moderate injuries which are now largely resolved has been embittered more by this law suit and its unhappy aspects than by the actual injuries resulting from the accident. We perceive that the acrimonious relationship which existed between the parties to this litigation but which bore no actual relationship to the extent or seriousness of Cathy's injuries may be one explanation for the manifestly erroneous quantum verdict. We further conclude that some additional explanation for same is available when we consider the manner in which the jury was obliged to respond to the interrogatories propounded to it.
At the conclusion of the trial, the jury was allowed to retire for its deliberations with a page of plaintiff's original petition for damages which contained this itemized allegation:
1) Past, present and future medical expenses
$ 5,500
2) Past, present and future pain and suffering
45,000
3) Past, present and future mental
anguish, psychological damage,
psychiatric damage, disfigurement
and scarring 25,000
4) Past, present and future lost wages
and/or loss of school time as a result
of her injuries 5,000
The jury was then apparently instructed to award damages by filling in four blank spaces on a piece of note paper marked (1), (2), (3) and (4) which obviously corresponded exactly to the itemized damages noted above. We believe that this procedure of requiring the jury to "fill in the blanks" with respect to several different but very much related items of alleged damages acted as an unintentional but nevertheless significant signal to them that they were obliged to render separate and distinct awards for each itemization—and were to respond in a cumulative manner to each and every aspect of plaintiff's claim in particularized response to the individual itemizations of alleged damages which were set forth in plaintiff's original petition.
There is nothing before us to indicate why this unusual procedure was followed but we have little doubt that it caused the jury to feel obliged to specifically respond, as in fact they did[*], in dollar amounts, to each separate and particularized item of alleged damages.
We do not conclude that the procedure described above requires reversal or remand but we do determine that it was partially causative of the ultimately unacceptable amount of the verdict.
In our considered view, the award is more than double that which is warranted by the record.
It is apparent from the record that, at the time of trial, Cathy had Materially improved from the condition that existed when the photographs which are in evidence were taken. It is also clear from all the evidence that the redness of certain area of her face which is apparent in those photographs was of limited duration and, most important, it is also apparent from the record that the scarring has been materially diminished as a result of the successful excisions and dermabrasion performed by Dr. Kelly.
It is quite true that Cathy experienced some pain following the accident for a period *910 of perhaps two to three weeks (though one doctor thinks that about three days may have been the extent of it) and some moderate pain during the five days that she was in the hospital for the work performed by Dr. Kelly. It is also apparent that she was not ever obliged to suffer severe pain, describing it, herself, as a sort of stinging sensation of limited duration. The moderate pain which was experienced for two very limited time periods (one time under conditions where it was controlled by mild pain relievers) can not be the basis for a large award of damages.
The jury felt that Cathy's mental anguish, psychological damage, psychiatric damage, disfigurement and scarring required an award of $10,000 and though we believe this to be high under the circumstances we cannot say that it constitutes manifest error. The same might also be said of the award of $1,000 for the very limited amount of time she was absent from school. But an award of $20,000 for pain and suffering is an error so manifest and so disproportionate and inconsistent with the record as to require our intervention. Even so, we are inclined to exercise great restraint in our review of the award in order to be sure as we can that our reaction is tempered to the greatest possible extent.
We conclude that the overall total amount of the award must be reduced to $13,080.50.
EXPERT WITNESSES' FEES
We acknowledge, perforce, that the fixing of expert fees lies within the sound discretion of the trial court and should not be disturbed unless clearly erroneous. Orleans Parish School Board v. Bond,
None of the physicians involved in this fairly uncomplicated and reasonably short trial were obliged to be present in court for anything more than a reasonable minimum of time. Indeed, their testimony in most instances is quite brief, and in no instance is extensive or complicated to any unusual degree. For this reason we are at a complete loss to comprehend the basis upon which awards were made to Dr. Charles R. Smith in the amount of $2,500, Dr. Elizabeth McDermy in the amount of $750, Dr. Herbert B. Christianson in the amount of $1,500, Dr. J. Michael Kelly in the amount of $2,500. Additionally, the lesser awards to Dr. R. C. Albrecht in the amount of $200 and Dr. Gerald LaNasa in the amount of $300 are clearly in the category of "somewhat high," but not an obvious abuse. The awards to all of the physicians above noted with the exception of Doctors LaNasa and Albrecht will necessarily have to be reduced to $300 each which, as a matter of fact, is still somewhat high in our view but since we are not upsetting the awards to Doctors Albrecht and LaNasa because of the rule generally set forth in Borenstein, supra, we will not set the awards to the other physicians at a lower figure. No expert fee is due the deputy sheriff whose testimony dealt with his investigation of the accident in his official capacity notwithstanding the fact that he ventured several opinions as to speed, braking action, etc.
CONCLUSION AND DECREE
For all of the foregoing reasons the judgment of the Twenty-Ninth Judicial District Court, Parish of St. John the Baptist must be amended and recast so as to read as follows:
IT IS ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Larry Williams, Sr., as administrator of *911 the estate of his minor daughter Cathy Williams, and against Jack V. Harvey in the full sum of $13,000.00, plus legal interest from date of judicial demand and all costs;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of Larry Williams, Sr., individually, and against Jack V. Harvey in the full sum of $80.50;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that expert witness fees be fixed as follows:
Dr. Charles R. Smith $300.00
Dr. Elizabeth McDermy 300.00
Dr. Herbert Christianson 300.00
Dr. J. Michael Kelly 300.00
Dr. Robert C. Albrecht 200.00
Dr. Gerald LaNasa 300.00
and that such be taxed as costs.
As amended and recast, the judgment is affirmed.
AMENDED, RECAST AND AFFIRMED.
NOTES
Notes
[*] Submitted to the jury was simply a piece of note paper with a list of blank spaces numbered (1) (2) (3) (4) to which the jury responded: (1) $80.50, (2) 20,000, (3) 10,000 (4) 1,000. The response to (1) was based upon the fact that the medical expenses were paid prior to trial by agreement between counsel. $80.50 is the jury's computation of interest due on the amount paid as of the date of payment.