TONY BOUTTE v. ACE AMERICAN INSURANCE COMPANY UNITED RENTAL COMPANY AND CHADWICK SAVOY (2025)

Plaintiff Tony Boutte filed this personal injury civil suit based on a motor vehicle accident against Defendants Ace American Insurance Company, United Rentals (North America), Inc., and Chadwick Savoy. Following a jury trial where Defendants challenged both the causation and extent of Plaintiff's personal injuries, the trial court rendered judgment in favor of Plaintiff in the amount of $1,960,308.99. Defendants appeal.

FACTS AND PROCEDURAL HISTORY

Defendant Savoy drove an eighteen-wheeler flatbed trailer to the University of Louisiana solar field in Lafayette on April 2, 2021 to retrieve a forklift for his employer, Defendant United Rentals. Mr. Savoy parked the truck and trailer on the right-hand shoulder of Eraste Landry Road in order to load the forklift onto the trailer. He then drove the forklift along the private driveway toward Eraste Landry Road, intending to drive it onto the road and to the back of the trailer. When he reached the road with the forklift, his view of oncoming traffic was blocked by the eighteen-wheeler. Mr. Savoy stopped the forklift and was considering a different route to bring the forklift to the trailer. As Plaintiff drove his pickup truck past the eighteen-wheeler, the forks of the forklift skewered the passenger side of his truck, pushing it sideways and causing Plaintiff to crash into traffic signs on the side of the road.

Plaintiff sought treatment at the emergency room on the day of the accident, complaining of pain in his neck, back, and chest. Plaintiff then followed up with Dr. Kevin Brien, a chiropractor, whom he continued to treat with through November 2021. When chiropractic care was unsuccessful, Plaintiff began treating with Dr. Kevin Lasseigne, a physiatrist. Dr. Lasseigne ordered a muscle relaxer and a course of physical therapy.

After Plaintiff's neck and back complaints did not improve, Dr. Lasseigne recommended that Plaintiff either undergo epidural injections or visit Dr. Lon Baronne, an orthopedic spine surgeon, for a surgical recommendation. Plaintiff began treating with Dr. Baronne in May 2022. Dr. Baronne found that Plaintiff's physical exam corresponded with the pathology revealed by a June 2021 MRI, namely herniations at L4-5 and C3-4, C4-5, and C5-6. Due to Plaintiff's concern surrounding surgical intervention, Dr. Baronne recommended that Plaintiff continue with conservative measures to provide “system management” for as long as possible. Dr. Baronne advised of surgical options should the conservative measures become insufficient, specifically a L4-5 transfer from a lumbar antibody fusion (TLIF).

On Dr. Baronne's referral, Plaintiff began treating with Dr. John Martin, a specialist in the fields of anesthesia and pain management, in October 2023. Dr. Martin recommended a multi-factorial approach, which included both anti-inflammatories and opioids, as well as cervical and lumbar epidural injections. Dr. Martin later performed several injections at both areas, which Plaintiff reported alleviated much of his pain before each lost efficacy after approximately four weeks. Dr. Martin ordered an updated MRI in 2024 which, according to Dr. Martin, showed “a slight advancement in the disease process.”

Although Plaintiff continued to treat with Dr. Martin, Dr. Martin referred Plaintiff to Dr. Baronne, who reviewed the updated, 2024 MRI and noted a progression of the lumbar and cervical herniations. Dr. Baronne testified that he recommended continuation of the injections with Dr. Martin “for as long as those are giving him benefit[,]” but that the “next step” in treatment for the cervical condition would be a multi-level anterior cervical discectomy fusion (ACDF) at C3-4, C4-5, C5-6.

When the matter came to trial in May 2024, Defendants questioned whether the underlying accident caused Plaintiff's complaints and challenged whether the recommended medical treatment was reasonable and necessary. Defendants also disputed Plaintiff's claim for general damages.

The jury found Defendants to be 100% at fault for the accident and found Plaintiff's injuries and damages to be caused by the accident. The jury awarded: $300,000.00 for past, present, and future physical pain and suffering; $175,000.00 for past, present, and future mental anguish or suffering; $43,825.59 for past medical expenses; $1,091,483.40 for future medical expenses; and $350,000.00 for loss of enjoyment of life. The total amount of damages awarded was $1,960,308.99.

The trial court rendered judgment on May 17, 2024, adopting the jury's award of $1,960,308.99.

Defendants appeal, assigning the following as error:

1. The district court legally erred in allowing Plaintiff to introduce evidence regarding treatment and recommendations from Dr. Baronne which was not produced to Defendants prior to trial in violation of the rules of discovery.

2. The jury was manifestly erroneous in awarding future medical expenses which were not proven to be necessary or causally related to the accident, and without providing the probable cost of the treatments.

3. The jury was manifestly erroneous in finding Plaintiff's injuries were causally related to the 2021 accident.

4. The jury abused its discretion in its award of damages.

5. The district court legally erred in allowing Plaintiff to testify that he sold his business after the accident when that information was not disclosed to Defendant prior to trial in violation of the rules of discovery.

6. The district court legally erred in refusing to include a line on the jury verdict form for failure to mitigate damages.

DISCUSSION

Evidentiary Matters

For ease of discussion, we first address Defendants’ evidentiary concerns regarding the trial court's admission of certain aspects of Dr. Baronne's testimony and the admission of limited statements regarding Plaintiff's sale of his business. Both of Defendants’ arguments stem from Plaintiff's duty to supplement discovery.

In pertinent part, La.Code Civ.P. art. 1428 provides:

A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement his response to include information thereafter acquired, except as follows:

․

(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which he knows that the response was incorrect when made, or he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.

On review, an appellate court affords discretion to a trial court's determination as to “whether to admit testimony after a party objects on the ground that his opponent failed to fulfill the statutory mandate of La. C.C.P. art. 1428 to supplement discovery requests.” Pontchartrain Nat. Gas Sys. v. Texas Brine Co., LLC, 23-986, p. 36 (La.App. 1 Cir. 12/12/24), 405 So.3d 1078, 1104, writ denied, 25-62 (La. 5/20/25), _ So.3d _, writ denied, 25-97 (La. 5/20/25), _ So.3d _. “[A]ny doubt must be resolved in favor of receiving the testimony. When a party has not satisfied the technicality of supplementing discovery responses, the reviewing court can look to the record for a willful or negligent failure to disclose new information in determining whether the trial judge abused his discretion.” Id. at 1105 (citations omitted). See also Libersat v. J&K Trucking, Inc., 00-192 (La.App. 3 Cir. 10/11/00), 772 So.2d 173 (an appellate court considers a trial court's admission or exclusion of evidence under the abuse of discretion standard), writ denied, 01-458 (La. 4/12/01), 789 So.2d 598. See also Maddox v. Bailey, 13-564 (La.App. 1 Cir. 5/19/14), 146 So.3d 590.

Following review, we find that neither of the trial court's evidentiary rulings resulted from an abuse of discretion.

Dr. Baronne – Cervical Surgery Recommendation

Dr. Baronne explained to the jury that he first treated Plaintiff in May 2022 following referral from Dr. Lasseigne. Dr. Baronne testified that his physical findings on examination corresponded to findings from a June 2021 MRI, which revealed herniations at the L4-5 level and at the C3-4, C4-5, and C5-6 levels. During that initial period of treatment, Dr. Baronne offered the surgical solution of an L4-5 TLIF in the event conservative measures did not offer relief. Plaintiff did not pursue surgery, however, but instead later pursued treatment, including several epidural injections, with Dr. Martin.

Defendants’ evidentiary concern arose when Dr. Baronne explained to the jury that he examined Plaintiff in the week preceding trial and that an updated MRI showed progression of the L4-5 herniation as well as progression of the herniations at the C3-4, C4-5, and C5-6 levels. Given those circumstances, Dr. Baronne offered an ACDF for the C3-4, C4-5, and C5-6 complaint, as well as the TLIF for the lumbar complaint.

Following that testimony, Defendants requested a sidebar conference, where defense counsel explained that Plaintiff had not supplemented discovery with information regarding a new recommendation of cervical surgery.¹ Defendants cited prejudice in the inability to “prepare” for questioning related to Dr. Baronne's final examination and the new recommendation for ACDF. Plaintiff's counsel pointed out, however, that he filed a Motion to Continue in the weeks before trial due to the fact that Plaintiff continued to undergo treatment and was in the midst of receiving injections to both the neck and back. Defendants objected to the continuance. Plaintiff also pointed out that Defendants did not depose Dr. Baronne and that he had simply not been asked whether he was recommending cervical surgery upon initial examination.

In ruling, the trial court acknowledged that Dr. Baronne's testimony was prejudicial to Defendants’ case but explained that even if Defendants had known about Dr. Baronne's testimony beforehand, “it would've still be[e]n prejudicial.” The trial court therefore allowed the questioning regarding the recent exam, but allowed Defendants additional time over the lunch break to prepare for cross examination. Defendants maintain that the period was insufficient.

We leave the trial court's course of action undisturbed. As remarked upon by Plaintiff and by the trial court, Defendants were aware that Plaintiff's treatment was continuing and that Plaintiff's cervical condition was always at issue. Dr. Baronne's treatment records from his initial, May 2022 examination of Plaintiff reveal not only a formal recommendation of the “L4/5 TLIF” procedure in a letter written to Plaintiff's counsel, but commemorate Plaintiff's complaints of neck, upper back, mid back and low back pain. Plaintiff reported similarly in a July 2023 return to Dr. Baronne for “a cervical and lumbar follow up.”

By the February 22, 2024 Motion to Continue, Plaintiff advised that Plaintiff underwent cervical and lumbar epidural steroid injections in December 2023 and that another round of injections had been ordered. Plaintiff sought additional time for his “doctors to determine the results of his present treatment and the full extent of his future medical needs,” and therefore sought a continuance of the May 6, 2024 trial date. Defendants filed an Opposition, however, asserting that “[m]ost cases go to trial while treatment is ongoing” and that, by Plaintiff's rationale, “a case could potentially never be ready for trial.”²

In fact, Defendants suggested that “Plaintiff can call his treating physician to testify as to their opinion of what is reasonably necessary for medical treatment based on the information available to them.” Plaintiff did so. While Defendants focus upon the fact that Dr. Baronne was qualified as an expert in orthopedic surgery, he was also Plaintiff's treating physician. It was against this backdrop that the trial court permitted Dr. Baronne to testify regarding the developments from the prior week's examination. While not condoning any failure by Plaintiff to apprise Defendant of the developments, the trial court recognized the ongoing nature of the Plaintiff's treatment. In light of the discretion afforded the trial court, we leave the trial court's ruling undisturbed.

Sale of Business

Defendants similarly suggest that they did not learn until opening arguments that Plaintiff had sold his landscaping business and accepted other employment.³ Rather, in discovery propounded in June 2022, Plaintiff stated that he was self-employed.⁴ Plaintiff confirmed his self-employment in his February 2023 deposition. Defendants’ counsel thus objected to Plaintiff's disclosure in opening argument, referencing the duty to amend discovery responses. Counsel stated that, although she was not accusing Plaintiff of “knowing concealment,” the new information “sprung at trial” would prejudice Defendants, nonetheless. In response, Plaintiff withdrew claims for lost wages but stated that the information would be used solely for demonstrating damages associated with loss of enjoyment of life.

The trial court recognized Plaintiff's duty to supplement discovery, stating that, “it doesn't seem like there was anything done intentional” but that Plaintiff's obligation to supplement discovery continued and, although Defendants may have done “nothing[,]” they were deprived of the opportunity to delve into it further.” The trial court therefore allowed counsel to pursue questioning about “what [P]laintiff is doing now,” but prohibited questioning on why he sold his business.

Plaintiff's later testimony reflected the parameters set by the trial court. On questioning by his counsel, Plaintiff explained that, at the time of the April 2, 2021 accident, he owned a landscaping business. He stated that owning the business made him feel like a “boss,” made him feel like he “was doing something where [he didn't] have to report to nobody,” and that he had “independence[.]” Plaintiff testified that he enjoyed the work.

Review indicates that Plaintiff's counsel did not delve into the details of Plaintiff's sale of his business, only the emotional value Plaintiff placed on his work. Defendants offered no further objection to the line of questioning. Moreover, as Plaintiff points out, it is difficult to discern whether the limited testimony regarding the sale of the business influenced the jury's award of loss of enjoyment of life claim.

Accordingly, we leave the trial court's ruling undisturbed.

Causation

Defendants next question the jury's determination that Plaintiff satisfied his burden of proving the causal relationship between the April 2, 2021 accident and his claim for past and future medical expenses. In large part, Defendants suggest that Plaintiff failed to inform his physicians that he was involved in two automobile accidents in August 2022 and October 2022. That failure to disclose, Defendants contend, rendered the jury's reliance on Plaintiff's treating physicians’ opinions regarding causation clearly wrong.

The supreme court has explained that “[t]he test for determining the causal relationship between the accident and subsequent injury is whether the plaintiff proved through medical testimony that it is more probable than not that the subsequent injuries were caused by the accident.” Maranto v. Goodyear Tire & Rubber Co., 94-2603, p. 3 (La. 2/20/95), 650 So.2d 757, 759. A jury's causation determination is a factual finding and is thus reviewed by an appellate court for manifest error. Thibodeaux v. Donnell, 16-570 (La. 1/20/17), 219 So.3d 274. Thus, in order for the appellate court to disturb the trier of fact's finding of causation, the appellate court must 1) find from the record that there is no reasonable factual basis for the trial court's finding, and 2) further determine that the record establishes that the finding is clearly wrong or manifestly erroneous. Id.

While Defendants assert that the jury's finding of causation was clearly wrong due to the occurrence of the two 2022 accidents, Defendants left those accidents ill-defined in the record. Defendants offered no documentation of either incident to counter Plaintiff's contention that they were “minor” in nature. When asked how the 2022 accidents compared to that of April 2, 2021, Plaintiff stated that: “They didn't, I was hit by a forklift and that was car accidents.” He denied that he sustained injury in the later accidents, that he sought treatment from those accidents, or that his symptoms changed afterwards.

Plaintiff explained that he did not apprise his physicians of the accidents, stating: “Cause nothing, I mean, I wasn't injured.” The jury was therefore aware of the context in which Plaintiff did not discuss the accidents with his physicians and was able to assess both the circumstances of the accidents and Plaintiff's credibility. When a jury's findings are based on credibility considerations, the manifest error-clearly wrong standard of review “demands great deference to the trier of fact's findings[.]” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

Also, the condition(s) for which Plaintiff sought treatment were identified by the June 2021 MRI and assessed by both Dr. Brien and Dr. Baronne well before the 2022 accidents. Both physicians testified regarding causation from that point forward, with Dr. Brien pointedly attributing causation of Plaintiff's injuries to the April 2, 2021 accident.

Finally, specific to an award of medical treatment in 2023 and 2024, Defendants point out that their expert in neurosurgery, Dr. William Brennan, examined Plaintiff before trial and, on comparison of the 2021 and 2024 MRIs, explained that it was reasonable to conclude that further progression of Plaintiff's condition resulted from aging and subsequent accidents. Dr. Brennan stated that, “[i]f the logic is that the first accident caused the pain syndrome, it is also logical that the subsequent two accidents prolonged delayed recovery or flat out increased the abnormalities in the spine.” He therefore denied that “you can take all of the care after those two accidents and roll it back to the 2021. That doesn't make sense.”

Nevertheless, the jury was aware that Defendants presented no evidence regarding the 2022 accidents and that Plaintiff denied that they were serious. Further, Dr. Baronne found that the 2024 MRI showed progression of the initial herniations. When asked of any indication that the progression was from a new injury, Dr. Baronne stated: “I mean, not that I can tell.” In addition to the fact that it is the jury's role to assess credibility and make reasonable findings of fact, jurisprudence indicates that “greater weight may be accorded to the testimony of a treating physician ‘who has had the benefit of repeated examinations and sustained observation of the plaintiff under his direct care ․’ ” LaBauve v. La. Med. Mut. Ins. Co., 21-763, p. 10 (La. 4/13/22), 347 So.3d 724, 732 (quoting, in part, Wild v. Cont'l. Cas. Co., 234 So.2d 783, 784 (La.App. 1 Cir. 1970)).

Accordingly, we find no merit in Defendants’ argument regarding causation.

Quantum

Defendants challenge the jury's awards for both special and general damages. Special damages, comprised of past and future medical expenses in this case, are those that have a ready market value and thus may be determined with relative certainty. See Kaiser v. Hardin, 06-2092 (La. 4/11/07), 953 So.2d 802. An appellate court reviewing an award of special damages must discern whether there is a reasonable factual basis for the award based on the record as a whole and whether the award was clearly wrong. Id. The issue on review is thus not whether the jury was right or wrong, but whether its finding was a reasonable one. Menard v. Lafayette Ins. Co., 19-1869 (La. 3/16/10), 31 So.3d 996.

While special damages may be determined with relative certainty, general damages are inherently speculative and cannot be fixed with mathematical certainty. Pete v. Boland Marine & Manufacturing Co., LLC, 23-170 (La. 10/20/23), 379 So.3d 636. An appellate court therefore reviews an award of general damages for abuse of discretion, using a two-step analysis. Id. First, the appellate court must determine whether an abuse of discretion occurred by examining the facts and circumstances of the case under review while considering prior awards in similar cases. Barber Brothers Contracting Co., LLC v. Capitol City Produce Co., LLC, 23-788 (La. 12/19/24), 397 So.3d 404 (on rehearing). Second, if the appellate court discovers an abuse of discretion, it must then consider the prior awards to determine the highest or lowest point that is within the trier of fact's discretion. Id.

Future Medical Expenses

In addition to their challenge regarding causation, Defendants suggest that the jury's award of future medical expenses “was predicated on speculation disguised as expert medical testimony” and that Plaintiff did not prove that future treatment, in particularly surgical intervention, was medically necessary and inevitable. Defendants also contend that the fact that Plaintiff's pain was lessened by several epidural injections, that he had rejected surgical intervention, and that he had not more aggressively pursued treatment are strong indicators that surgery is neither necessary nor will it occur. Defendants instead urge reliance on Dr. Brennan's opinion that Plaintiff did not suffer nerve pain or sustain a neurological deficit. Finding no symptoms that fell outside of normal joint pain, Dr. Brennan recommended treatment with anti-inflammatory medication.

On review, we find that the record supports the jury's finding. Dr. Baronne, for instance, testified that while he encourages patients to manage symptoms with conservative measures “for as long as they can,” surgery becomes a viable option after suffering reaches a point where “they simply can[not] function[.]” He stated that Plaintiff's conditions would not resolve on their own. Dr. Baronne stated that “there is a probabilistic assessment that goes on with his symptoms and ․ with what I see on imaging, and that is you say with a high degree of probability that ․ within the next decade [you're] gonna need a surgical procedure to ameliorate these findings.” When asked what type[s] of surgery would be appropriate for Plaintiff's low back, Dr. Baronne responded “likely an L4-5 transfer from a lumbar fusion.” After counsel inquired whether Dr. Baronne felt that the “surgery is reasonable and necessary to treat Tony Boutte's injuries from this April 2, 2021 collision[,]” Dr. Baronne responded, “I believe that is more probable than not, yes.”

As for Plaintiff's neck complaint, Dr. Baronne diagnosed Plaintiff as suffering from a multi-level cervical disc herniation and stenosis and confirmed that the 2021 MRI showed an objective neck injury. He explained that the problem could have been “addressed surgically” when Plaintiff first came to him but that conservative therapy was initially prescribed. He explained that the condition must “generally speaking” be monitored because it can progress. In fact, Plaintiff's symptoms continued to worsen. After seeking treatment with Dr. Martin for a period, Plaintiff underwent an updated 2024 MRI which showed “some progression of those exact same levels in the neck C3-4, C4-5, C5-6[.]” When asked whether he had an updated treatment recommendation, Dr. Baronne explained:

A So with respect to, so it's not dissimilar from what it was in the past, you know, I feel as though he should continue with injections with Dr. Martin for as long as those are giving him benefit. As soon as he feels as though those aren't sustaining him then I believe a surgical procedure. What I would recommend as the next step in that treatment specifically in ACDF, that is C3-4, C4-5 and C5-6.

․

Q Now, is that to say, well, was that surgery indicated in June of 2021?

A So, again, I try to provide as clear as I can to these words as far as indicated, right? So could a surgical procedure have been performed to ameliorate the symptoms? Yes. Given that he had not undergone ․ conservative measures it is my typical practice protocol to put people through those mechanisms prior to undergoing a surgical procedure. Does that answer the question?

Q Absolutely. And ․ so with that recommendation of the anterior cervical discectomy [fusion], is that correct?

A Yes.

Dr. Baronne remarked that each of those fusion surgeries posed the “unfortunate consequence of causing the next level around it to deteriorate at a certain rate[.]” Dr. Baronne stated that he therefore explains to patients that “ ‘it's more probable that’ ” they “ ‘will need an adjacent surgery to a fusion in fifteen to seventeen years’ ” for the lumbar fusion whereas the degeneration is “usually around eighteen to twenty years, where people cross that fifty percent threshold of requiring a surgery at the next level.” As discussed below, Dr. Baronne offered the costs associated with adjacent segment surgery at both the lumbar and cervical levels.

Dr. Martin likewise testified that he initially diagnosed lumbar and cervical herniations, resulting in a “multiple factorial approach” to treatment, including pain and anti-inflammatory medication as well as cervical and lumbar epidural injections. Dr. Martin stated that this is the type of treatment Plaintiff will more probably than not require until he has surgery. When asked whether the treatment was necessary to treat the injuries Plaintiff sustained in the April 2, 2021 collision, Dr. Martin responded, “Yes.”

We therefore find no merit in Defendants’ characterization of the expert testimony as speculative in nature. Each physician testified that the recommended treatments were probable, if perhaps not urgent or immediate.

We similarly find no basis for the contention that Plaintiff's experts offered mere “estimates” and thus presented an insufficient basis for an award of future medical expenses. Importantly, “[s]pecial damages are those which have a ‘ready market value,’ such that the amount of the damages theoretically may be determined with relative certainty, including medical expenses[.]” Kaiser, 953 So.2d at 810 (emphasis added). Specific to Defendants’ argument, “[a] plaintiff shows the probability of future medical expenses with supporting medical testimony and estimations of their probable cost.” Menard, 31 So.3d at 1006 (emphasis added). A reviewing court must not reject an award of future medical expenses on the basis that the record does not provide the exact value of the necessary expenses, if the record otherwise establishes that future medical expenses will be necessary and inevitable. Id. The supreme court explained that:

Notably, it is well acknowledged an award for future medical expenses is in great measure highly speculative and not susceptible to calculation with mathematical certainty. It follows, therefore, such awards “generally do not involve determining the amounts, but turn on questions of credibility and inferences, i.e., whose experts and other witnesses does the jury believe?”

Id. (citations omitted).⁵

On examination of the record, we find the jury's award of future medical expenses in the amount of $1,091.483.40 to be reasonable and supported by the evidence. As noted above with regard to causation, Dr. Baronne testified that Plaintiff would more likely than not need multiple procedures and Dr. Martin testified that he will require invasive pain management until those surgeries are performed. Absent those procedures, Plaintiff will need pain management for the remainder of his life. The jury plainly accepted both Dr. Baronne's and Dr. Martin's opinions that the subject accident caused the need for a large measure of that future treatment.

Both testimony and Plaintiff's exhibits undermine the contention that the costs associated with future treatment was merely speculative. While Dr. Baronne explained he was “generally” familiar with the costs of the surgeries, he confirmed specific figures associated with the surgeries. For example, on questioning by Plaintiff's counsel, Dr. Baronne explained:

Q A TLIF procedure, did you look at the price of the [L4-5] TLIF procedure?

A Yes.

Q And it is multiple charges, right not just one flat charge?

A That is correct.

Q Alright, did you see any numbness [sic] of the hospital charges for that surgery?

A So hospital charges generally we perform that procedure at a Park Place Hospital and those are about $51,000.00.

Q $51,000.00 even?

A It is $51,016.70 to be exact.

Q And how about the hardware charge, that is titanium car jack [sic] that you were talking about, right and the screws and all the other parts?

A That is right, so that is $73,647.00.

Q Alright and how about the anesthesia charge?

A Anesthesia appears to be $11,550.00.

Q And the surgery, the charge for the surgeon and your assistant[?]

A Yea, Louisiana Orthopedic Specialists sort of charges are around $53,125.70.

Q And [ ] how about Advanced Healthcare Surgeons?

A Yea, those are things like a DVT prophylaxis, cold therapy units, etc. that comes to $7,600.00.

Q What about neuro diagnostic monitoring?

A Approximately $8,000.00.

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Q So the probable cost all in the TLIF surgery, rather is two hundred four ninety eighty-three forty, is that reasonable and necessary for this kind of surgery?

A I believe so.

Q And is it your opinion that this surgery is reasonable and necessary to treat Tony Boutte's injuries from this April 2, 2021 collision?

A I believe that is more probable than not, yes.

This testimony is consistent with the estimates provided by each of the health care providers associated with the delineated costs. Plaintiff introduced the estimates as Plaintiff's Exhibits 14-18.

Dr. Baronne confirmed that the “probable” costs of the ACDF at C3-4, C4-5, C5-6 would be “roughly” the same price. When asked if the figure would be “about $204,000.00,” he replied “[a]bout there, yea.” Dr. Baronne's testimony regarding both the lumbar and cervical surgeries was memorialized on Exhibit P-27.

Dr. Baronne further explained that the adjacent segment surgery for the lumbar spine would be “pretty much the same” as the $204,983.40 estimate for the initial TLIF. The adjacent segment surgery for the ACDF, however, would be “slightly less expensive” than the $204,006.00 cost of the initial procedure as less hardware would be utilized.

As for pain management, Dr. Martin conservatively projected that Plaintiff would need “two cervical or two neck epidural steroid injections per year and two in the lumbar epidural injections per year.” He estimated each injection, without anesthesia, cost “about $4,000.00 probably about $4,000.00 for the cervical maybe $3,800.00 for the lumbar.” He detailed further costs, including quarterly follow-up appointments at $500 each, as well as thrice-yearly urinary drug screening at “around $600.00” and “about $2,000.00 for a confirmation.” Additionally, Dr. Martin explained that Plaintiff is on three medications: a Ketamine compound which is filled six times per year at $500; an inflammatory gel which is also filled six times per year at $800; and Percocet, filled monthly at $150.00. Dr. Martin also stated that “at some point [Plaintiff] is going to get surgery[,]” but until that time he “will get an updated MRI scan of the cervical and the lumbar spine every three years.” He estimated those costs to be “around $3,000.00 for both for every time” he does it. Given Dr. Baronne's indication that Plaintiff would likely have surgery “within the next ten years or so[,]” Dr. Martin explained that “[m]ore probably than not this is the treatment he will need.” He estimated that associated bloodwork will be an annual cost of $300.

When Plaintiff's counsel inquired what treatment would be required if Plaintiff did not pursue surgery, Dr. Martin stated that he “could get this the rest of his life.” Plaintiff's counsel memorialized Dr. Martin's cost estimates on Plaintiff's Exhibit-28.

Given the level of detail offered by Dr. Baronne and Dr. Martin, we find no merit in Defendants’ contention that Plaintiff failed to sufficiently establish costs. Instead, Plaintiff demonstrated not only the probability of future medical expenses with the supporting testimony of both Dr. Baronne and Dr. Martin, but each expert provided quite precise estimations of their probable cost. See Menard, 31 So.3d 966.

Finally, while Defendants suggest that Plaintiff may not pursue surgery given there were periods during which he did not seek treatment, Plaintiff explained that work and family demands kept him from more aggressively pursuing physical therapy and chiropractic care. Confirming that “[i]t was a challenge” to attend appointments multiple times a week, Plaintiff stated “I got to work all day and then try to figure out time to go to physical therapy and spend time with my kids and pick up my kids from school, spend time with my wife, like that's a lot right there.”

Plaintiff's testimony further undermines Defendants’ contention that he has demonstrated no intent to undergo surgery. Rather, Plaintiff pursued the conservative, incremental path offered by Dr. Baronne and Dr. Martin. He first tried measures such as over the counter and prescription medication, topical gel, and Epsom salt baths. After that approach did not work, Plaintiff pursued injections as the “next step[.]”

Plaintiff explained that, although he did not seek treatment for a period of time, his pain never went away. He confirmed that he instead tried “to handle it” on his own. He testified that when initially offered the option of injections or surgery, he did not want to pursue either. He stated “that was never my objective to do a surgery, injections none of that. Like to me, I always hear like ․ bad things about it, so I was like no, I don't want to do it.” When asked about a year-long gap in his treatment with Dr. Baronne, he explained that he was “[s]till hurting” and that: “I am hurting right now. I am hurting right now. Like really literally, nothing changes I still going through when that happened.”

When asked why he ultimately pursued injections, Plaintiff replied:

I was hurting so much I was like, man, what can I do? What is the next step? So they said that was the next step? So that is what went to the right there when I went back to the doctor. I was like, man, I am at the point where I've been taking the aspirin, I've been doing alcohol with the epsom salt. It is just not working like it was. Like it was the next step that[’]s what it was.

With regard to the injection, Plaintiff stated that:

They help, they work. Honestly, I ain't going to lie, without the injections I don't think I would have been just sitting down doing this right now cause I've been a couple of days I really just don't sit down all day and I just, you know, when I am dealing with something, like I sit down it's the spur of the moment go do what I got to do, finish handling my business, just sitting here, just dealing with it.

On questioning by counsel regarding his reluctance to have surgery, Plaintiff responded:

Q We heard about the surgeries that Dr. Baronne recommended why haven't you gone forward with those yet?

A Honestly, like the recovery stages, I don't have no help. I don't know what would be the outcome of it. Like, I am just I guess I just haven't got to that step yet. But I mean I guess eventually I probably will have to get to that stage due to the fact if I continue dealing with the pain, if the injections and the topical cream may not continuing to work that would have to be my next step.

Q That is basically how you felt about the injections?

A Yes, sir.

Q But some point you ended up getting those and those helped, right?

A Yes, sir.

Q You think you will consider going forward with surgery in the future if you have to?

A Yes, sir.

Q Do you wish that was a decision you didn't have to make?

A Yea, that's not what I want. That definitely wasn't my objective to have to go through a recovery stage or getting cut on. That was definitely not my objective at all.

Plaintiff thus explained to the jury that he was, in fact, considering surgery as his condition progressed. Accordingly, we find that he demonstrated the probability of future medical expenses with the supporting testimony of Dr. Baronne and Dr. Martin as well as estimations of the probable cost of those expenses. See Menard, 31 So.3d 966.

In closing argument, Plaintiff suggested figures according to whether the jury found it appropriate to award damages for 1) pain management in lieu of surgery ($957,000); 2) for ten years of pain management, two surgeries, and two adjacent level surgeries ($1,436,966.80); or 3) for twenty years of pain management and two surgeries ($1,466,000.00). During deliberations, the jury asked to review the recapitulations of expenses on P-27 and P-28 before awarding future medical expenses of $1,091,483.40. The figure reflects a finding that Plaintiff proved future medical expenses comprised of a large portion, but not all of the damage sought. We find that the award is amply supported by the record.

Past Medical Expenses

Defendants also question causation in their assignment regarding the jury's award of $43,825.59 in past medical expenses. Defendants reference Plaintiff's two 2022 accidents, but further point out that Plaintiff had five and thirteen month gaps in his treatment. Noting that “Plaintiff went to only nine doctor appointments in over three years,” Defendants contend that “[n]one of this should be attributed to the 2021 accident.” Alternatively, Defendants contend that a more reasonable award “would be the expenses for the time period from the date of the first accident in April 2021 to the date of the last treatment in 2022,” prior to the thirteen-month absence from treatment.

Defendants’ argument assumes that Plaintiff was either not injured in the April 2021 accident or no longer injured simply because he did not pursue medical treatment during the five-month period between November 2021 and April 2022 and the thirteen-month period between May 2022 and June 2023. Plaintiff explained that there were periods when he tried to manage his pain on his own. When Dr. Baronne gave him options of injections or surgery during a May 2022 visit, Plaintiff stated that he did not want to pursue either option at that point. When asked whether he was still in pain at the “end of that yearlong gap after the May, 2022, visit with Dr. Baronne,” Plaintiff explained that he was “[s]till hurting” and that nothing had changed. He simply chose to later pursue injections as a “next step.”

Defendants’ argument otherwise assumes that the 2022 accidents barred a finding that medical expenses incurred past that point were related to a straightforward progression of the injuries sustained in the 2021 accident. But, as previously discussed, the jury rejected Defendants’ position, finding Plaintiff credible in stating that he sustained no injuries in the “minor accidents” of 2022.⁶ The jury instead favored Plaintiff's treating physicians who testified regarding the progression of Plaintiff's original injuries.

This assignment lacks merit.

General Damages

Defendants next assign error in the jury's general damages award, which totaled $825,000.00, and cite an abuse of the jury's discretion in each component of its award: $300,000.00 for physical pain and suffering; $175,000.00 for mental pain and suffering, and $350,000.00 for loss of enjoyment of life. We address the elements in turn, but note that, “in reviewing a general damage award, courts review the entire damage award and not ‘a particular item in isolation,’ to determine if the award constitutes an abuse of discretion. Only if the total general damage award is abusively high can it be disturbed.” Boyance v. United Fire & Cas. Co., 23-442, p. 10 (La.App. 3 Cir. 4/3/24), 387 So.3d 586, 597 (citation omitted), writ denied, 24-632 (La. 9/24/24), 392 So.3d 1145.

Addressing the jury's award for physical pain and suffering, Defendants again point to Plaintiff's inconsistent treatment. With regard to severity, Defendants state that “Plaintiff testified that in 2023 he was able to use a weed eater, use a lawnmower, climb up and down from his truck, carry the metal ramp that connects to his truck to allow the lawnmower to be loaded, and was able to lift and bend.” In doing so, Defendants focus on a passage from Plaintiff's cross-examination by defense counsel indicating that Plaintiff could perform tasks associated with the operation of his landscape business; the larger colloquy, however, reflects that he could only do so in pain. Plaintiff responded as follows on defense counsel's further questioning:

Q Alright. You were able to bend, you were able to lift, you were able, I understand you are saying it hurt, but you were able to do it?

A Yea, I am hurting. I am hurting. I am hurting. I am hurting doing everything.

On redirect by his own counsel regarding the time period in which he was not seeking treatment, Plaintiff explained:

Q You were doing the Bengay, all the other things you were doing like hot baths with epsom salt and all that. You were still hurting in this big blank spot, right?

A Of course I am still hurting right now, I am hurting right now.

Q Your pain never went away, right?

A No, sir.

Q Hasn't gone away, not since the day of this accident, right?

A No, sir.

Through this testimony as well as the consistent ratings of pain at his medical appointments—at times as high as 8/10 or 10/10—the record supports a finding that Plaintiff was in pain for the three years from the accident through the May 2024 trial. His treating physicians further explained that Plaintiff's conditions would not resolve on their own and that Plaintiff would be faced with choosing either lifelong pain management, or pain management until the time of fusion surgery. The jury was aware of each of those circumstances in fashioning the pain and suffering award.

As for past, present and future mental anguish, Defendants suggest that “there is no evidence that Plaintiff had any ‘pain, discomfort, inconvenience, anguish and emotional trauma’ as a result of the alleged injury.” Defendants note that Plaintiff did not report either anxiety or depression to his physicians nor did he take medication in that regard.

Plaintiff's testimony as a whole, however, supports the award. Although Plaintiff denied losing sleep due to anxiety or depression per se, he otherwise testified regarding the implications of being in pain. For instance, he stated that he “could sleep but [he] would be in pain” and also explained that: “You know, like I am saying, like, I am hurting. It is not a depression thing where anxiety ․ is keeping me up or something. You see what I am saying? It would be like the pain or me dealing with it.” Further, he plainly described his struggles to balance his work life with his medical appointments and, in fact, failed to pursue recommended treatment due to work or family obligations. He also expressed reluctance to move toward injections and surgery more quickly due to a degree of uncertainty surrounding the procedures.⁷

We further find that the circumstances support the jury's award for loss of enjoyment of life. Notwithstanding evidence regarding the sale of Plaintiff's business and his loss of independence in that regard, Plaintiff responded to counsel's inquiry regarding his ability to be an active father as follows:

I mean it slowed me down tremendously. Like I have a son. He is active. Like, my little boy, he is six so he is always on the go. He wants to play football and my little boy, he plays soccer, he box, like he does his recreation. So I have to be to games or go out and practice with him or take him to the gym. Like, I am not able to do those things with him. Like I use[d] to run around, go play soccer with my little boy, do sit ups and all those types of things. I can't do that type of stuff with my little boy. Like, you know, what I am saying so I got to help him just, you know it is just different it is completely different as opposed to [the] way I used to do things before. I could go outside and play catch with my son, throw the ball, wrestle, now it is a strain.

He explained that those circumstances made him feel, “Not good. Like cause my little boy is six. My little girl is three. So that is a long time of me not being able to do a lot of things I would have been able to do that I can[not] do with them right now.”

Finding the awards supported by the record, we turn to consideration of prior awards in similar cases in assessment of the jury's exercise of its discretion. See Barber Brothers, 397 So.3d 404 (on rehearing). Defendants point to Baker v. Freeman, 97-604 (La.App. 3 Cir. 10/29/97), 702 So.2d 1140, writ denied, 97-2984 (La. 12/10/97), 704 So.2d 1176 and Copell v. Arceneaux Ford, Inc., 20-299 (La.App. 3 Cir. 6/9/21), 322 So.3d 886 as instructive. We note distinguishable characteristics, however.

First, Baker, 702 So.2d 1140, a now twenty-five year old case, involved an automobile accident resulting in a recommendation for a single level lumbar fusion and an award of merely $45,000.00 for future medical expenses. In contrast, Plaintiff in this case sustained a lumbar and multi-level cervical herniations for which the jury found an award of medical expenses exceeding $1 million appropriate. The jury's award reflects a finding that Plaintiff will require a lifetime of medical intervention. Further, the panel in Baker found that the jury awarded inadequate general damages and, in turn, increased the award to $50,000.00, “the lowest general damages award reasonably within the jury's discretion.” Id. at 1146 (emphasis added). The jury in this case found a larger award was supported by the circumstances.

Likewise, the plaintiff in Copell, 322 So.3d 886, suffered a single-level cervical herniation. The plaintiff underwent a successful surgery prior to trial and was projected to have another procedure, resulting in future medical expenses of $217,000 as adjusted on appeal. In contrast, the jury in this case accepted Plaintiff's treating physicians’ opinions that he will more probably than not incur significant medical expenses, awarding at more than four times the figure awarded in Copell. And, while Copell involved in a lesser general damage award of $150,000.00, that award also resulted after the appellate panel concluded that the jury abused its discretion in awarding an inadequate sum. The $150,000.00 award again reflected an increase to the lowest reasonable award within the jury's discretion.

In arguing that the $825,000.00 award is reasonable, Plaintiff first directs this court to Boyance, 387 So.3d 586, wherein this court affirmed a $1,520,000.00 general damages award ($230,000.00 for past and future mental and emotional anguish; $760,000.00 for past and future physical pain and suffering; and $530,000.00 for past and future loss of enjoyment) as well as special damages of $135,000.00. Following a course of conservative treatment, which included facet joint injections, the plaintiff underwent a laminectomy and foraminotomy at the L5-S1 to reduce nerve pressure and lower back and leg pain. The procedure relieved some, but not all of the plaintiff's pain. Regarding mental anguish, the plaintiff was diagnosed as suffering from post-traumatic stress disorder, anxiety, and low-level depression. Although the plaintiff was able to work, she no longer enjoyed her preaccident social activities.

Along with jurisprudence cited within Boyance, Plaintiff references Smith v. Ceasar, 23-689 (La.App. 3 Cir. 6/26/24), 389 So.3d 1037, writ denied, 24-944 (La. 11/6/24), 395 So.3d 1176, in which this court affirmed an award of over $3 million in general damages ($800,000.00 in past and future physical pain and suffering; $1.375 million in past and future mental pain and suffering; and $1 million in past and future loss of enjoyment of life) and an award of more than $800,000.00 in past and future medical expenses for injuries that required a four-level cervical fusion, a two-level lumbar fusion, and shoulder replacement.

The plaintiffs in both Boyance and Smith had additional factors that are not present in this case. Namely, the plaintiff in Boyance demonstrated psychological repercussions associated with her child's involvement in the accident whereas the plaintiff in Smith sustained a traumatic brain injury that negatively affected his cognitive and psychological abilities. Those factors contributed to the comparatively greater sums awarded for past and future mental anguish and loss of enjoyment of life awarded in those cases.

Pertinent to comparison with this matter, however, both Boyance and Smith involved awards for past and future physical pain and suffering that vastly exceeded the jury's award for that element in this case. The jury's award of over $1 million in future medical expenses, alone, reflects its finding that Plaintiff demonstrated that he will require a lifetime of medical treatment comprised of interventional pain management and the probability of spinal fusion surgery.

We therefore find that the sum awarded in this case is supported by the record and is not an abuse of the jury's discretion.

Mitigation of Damages

By their final assignment of error, Defendants contend that they proved that Plaintiff failed to mitigate his damages as he avoided treatment for lengthy periods and did not more aggressively pursue physical therapy or chiropractic care. Defendants acknowledge that the trial court instructed the jury on mitigation of damages,⁸ but contend the trial court's refusal to provide a special interrogatory on that point left the jury without a way to reduce damages.

Louisiana Code of Civil Procedure Article 1812(A) provides that the trial court “may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact.” The trial court's determination of whether to submit interrogatories on each factual issue, however, is afforded wide discretion on review. State ex rel. Dep't of Transp. & Dev. v. Wade, 97-1385 (La.App. 3 Cir. 5/28/08), 984 So.2d 918, writ denied, 08-1896 (La. 12/12/08), 997 So.2d 561.

This court echoed that standard of review in Johnson v. First Nat'l Bank of Shreveport, 00-870 (La.App. 3 Cir. 6/20/01), 792 So.2d 33, writs denied, 01-2770, 01-2783 (La. 1/4/02), 805 So.2d 212, 213, a case in which the appellant likewise complained that the trial court erred in failing to include an interrogatory regarding mitigation. The panel concluded that the trial court's refusal to include the interrogatory did not constitute an abuse of discretion as the trial court instructed the jury regarding the duty to mitigate. The panel explained:

The trial court has broad discretion in determining whether to submit special interrogatories to the jury. A trial court's refusal to give a requested special charge is not error when the charge, in effect, is included within general charges. Here, the general charges given by the judge covered the special interrogatories which [the appellant] had requested. Although the trial judge did not give special interrogatories regarding the affirmative defenses, he is given broad discretion in making such determinations. Because the affirmative defenses were included in the general instructions to the jury, we find that the trial judge did not abuse his discretion in failing to incorporate special interrogatories regarding the affirmative defenses.

Id. at 54 (citations omitted).

The second circuit similarly found no abuse of discretion in a trial court's refusal to include a separate interrogatory concerning the doctrine of mitigation of damages. See Young v. First Nat'l Bank of Shreveport, 34,214 (La.App. 2 Cir. 8/22/01), 794 So.2d 128, writ denied, 01-2642 (La. 1/4/02), 805 So.2d 209. As in this case, the trial court in Young instructed the jury as to the principle of mitigation, explaining that the plaintiffs were, “ ‘obligated to exercise ․ ordinary care in order to minimize their damages after the initial injury has been inflicted. The doctrine of mitigation of damages imposes a duty upon an injured person to make reasonable efforts to minimize his damages.’ ” Id. at 140. In light of that instruction, the trial court found that the requested interrogatory regarding mitigation was unnecessary and would not be helpful. The second circuit maintained that ruling following consideration of both the jury instructions and interrogatories as a whole. Id.

Like the panels in Johnson and Young, we conclude that the trial court did not abuse its discretion in this case. The instructions and the verdict sheet as a whole reflect that the trial court fairly and reasonably informed the jury of the principles of the law applicable to the case.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this proceeding are assessed to Defendants/Appellants, Ace American Insurance Company, United Rentals (North America), Inc., and Chadwick Savoy.

AFFIRMED.

FOOTNOTES

1.   Defendants note they issued interrogatories regarding the nature and extent of Plaintiff's injuries and all future medical expenses to be incurred as a result of the accident. Specific to the recommendation of surgery, Defendants point to the following:INTERROGATORY NO. 19:Are you scheduled for any surgical procedure, or has any doctor recommended any surgical procedure, with regard to any of the injuries which you allege are in any way related to the accident or incident which forms the basis of this matter? Additionally, please supplement your response to this interrogatory to inform undersigned counsel immediately, and in all events prior to, any scheduling of surgery in the future such that defendant may have the opportunity to request an I.M.E. or other procedures to take place prior to any other surgery or other procedure.(Emphasis added.)

2.   In their Opposition to Motion and Order to Continue Trial, Defendants asserted that:Plaintiff now argues that because his treatment for his injuries is ongoing, the full extent of his damages will not be known by the trial date of May 6, 2024. However, under this rationale, a case could potentially never be ready for trial. Most cases go to trial while treatment is ongoing. Plaintiff can call his treating physician to testify as to their opinion of what is reasonably necessary for medical treatment based on the information available to them. There is no reason to continue the trial. Postponing the trial date will only prejudice defendants by delaying the time to reach a resolution of this case.The minutes of the April 15, 2024 hearing conducted on the Motion to Continue further indicate that: “In regards to the contradictory hearing on a motion to continue and re-fix trial: The Court stated its reasons for ruling and denied the continuance, plaintiff can introduce evidence of future medical treatment through his treating physicians.”

3.   On this point, counsel argued to the jury that:What were the consequences of these injuries before the collision? Tony was an active father of two young children, age three and six. He loved playing basketball and soccer with his kids. He had his own landscaping business called Weed Care Lawn Service and at the time of the wreck he had thirty yards he took care of. He took pride in his work and enjoyed the independence of being his own boss daily. Tony stopped after the wreck. He kept working his landscapers for his family and he was able to do the work but when he got home he wasn't able to play with his kids and was relegated to lay in bed or on the couch cause he was suffering from neck and back pain that he never had before this accident. Ultimately Tony's injuries prevented him from being able to work as much as he had before the accident. He wasn't able to take care of many yards, couldn't make as much money as needed to continue the landscaping job. So last year Tony made the difficult decision to close his landscaping business. He found a job working for Evangeline Maid Bread that required less physical labor and where he had [ ] help with a limited physical work he had to perform.

4.   Defendants reference June 24, 2022 interrogatories by which they inquired:INTERROGATORY NO. 12:Please state the name and address of your employer, a description of your job, the full name and address of your immediate supervisor, your current rate of pay, your rate of pay at the time of the incident, and the days missed as a result of the incident which forms the basis of this suit.Plaintiff responded:ANSWER TO INTERROGATORY NO. 12:At this time, plaintiff recalls that he was self-employed at the time of the collision and his pay rate varied depending on the work he was performing.

5.   The trial court instructed the jury:In determining any award that you might make for past or future medical expenses, you should consider the evidence, and the opinions of expert witnesses, to decide the reasonable value or expense of medical and hospital care and treatment which was or will be reasonable and necessary for plaintiff's condition.Future medical expenses need not be established with medical certainty. You may award future medical expenses. In order to recover future medical expenses, the evidence must establish that it is more probable than not that such medical treatment will be undertaken.

6.   Defendants suggest that the August 2022 and October 2022 accidents were significant enough to have blurred the causal link of subsequent treatment. Yet, the thirteen-month gap in Plaintiff's treatment occurred between May 2022 and June 2023. By Defendants’ recounting of Plaintiff's medical treatment, Plaintiff received no treatment in the months following the 2022 accidents.

7.   When asked why he refuses anesthesia when Dr. Martin administers the injections, Plaintiff responded: “The nervousness, like it, just want to kind of be aware of what's going on with me, you know on that level right there.”

8.   Louisiana Code Civil Procedure Article 1792(B) requires the trial court to “instruct the jurors on the law applicable to the cause submitted to them.” In this regard, the trial court instructed the jury as to the duty to mitigate damages within its overall instructions regarding damages, stating:An injured person has a duty to exercise reasonable diligence and ordinary care to minimize his damage after the injury has been inflicted. The injured person need not make extraordinary, unreasonable, or impractical efforts to minimize his damages after the injury, but he must undertake those efforts which would be pursued by a person of ordinary prudence under the circumstances, which are reasonable and in accordance with the rules of common sense, and good faith and fair dealing.

WILBUR L. STILES JUDGE