SMITH v. PURE INSURANCE COMPANY (2025)

The plaintiff and defendants appeal the trial court's judgment finding the defendant driver and her insurer liable to the plaintiff for injuries and damages he sustained in a motor vehicle accident that occurred when the defendant driver was changing lanes on a four-lane roadway. For the reasons discussed below, we affirm in part, amend in part, and award additional medical expenses and general damages to the plaintiff.

FACTS

On June 15, 2020, Kerry Smith was driving his Toyota Avalon and Emily Semar, a minor, was driving her father's Honda Accord in the same direction in adjacent lanes on Center Street in New Iberia. Miss Semar began moving from her lane of travel into Mr. Smith's and the front, right fender/headlight of the Accord struck the front left fender of Mr. Smith's Avalon near the wheel well. Mr. Smith sued Steve O. Semar, Miss Semar's father, and Privilege Underwriters Reciprocal Exchange, Mr. Semar's insurer (referenced herein as “the defendants” at times).

At trial, Miss Semar testified that she used her blinker to signify her intent to change lanes and checked her mirrors before changing lanes. She also stated the safety light that indicated the presence of another vehicle being near her vehicle was not activated. Officer Kevin Gary of the New Iberia Police Department investigated the accident. After concluding his investigation, Officer Gary ticketed Miss Semar for improper lane change. He testified that Miss Semar admitted to him that she was at fault in causing the accident and that her improper lane change was the primary factor in causing the accident.

Miss Semar made the same admission at trial. She also testified that she did not see Mr. Smith until she hit him and that Mr. Smith did nothing to cause the accident. Miss Semar reported to Officer Gary that she was driving ten miles per hour at the time of the accident, while Mr. Smith reported that he was driving fifteen to twenty miles per hour. Mr. Smith testified that he was driving in his lane when Miss Semar's car entered his lane of travel and hit his car. Officer Gary further testified that Mr. Smith reported left shoulder and side pain to him.

After the accident, Mr. Smith went to the emergency room of Iberia Medical Center complaining of chest pain, right hand pain,1 neck pain, and low back pain. Two days later, Mr. Smith sought treatment at the Metropolitan Health Group in Lafayette where he was evaluated by a nurse practitioner. He reported radicular symptoms into his arms and legs to the nurse practitioner. Upon physical examination, the nurse practitioner noted spasms in both Mr. Smith's neck and back. The nurse practitioner ordered physical therapy which Mr. Smith completed, but his pain was not alleviated.

In August, MRIs of Mr. Smith's neck and back were performed. The MRI of his cervical spine revealed herniations with spinal cord compression at C3-4, C4-6, C5-6, and C6-7 with nerve root impingement and narrowing of the spinal canal. The lumbar MRI showed a synovial cyst and/or a disc herniation compromising the L4-5 nerve root, facet joint arthrosis at T-12 to S1, and left-sided foraminal stenosis and possible nerve root impingement at the L4 nerve root.

In December 2020, Mr. Smith sought treatment with Dr. William A. Brennan, a neurosurgeon. Dr. Brennan performed a four-level anterior cervical discectomy fusion to relieve Mr. Smith's neck pain. The surgery was initially successful, and Mr. Smith's neck pain improved. But after some time, pain caused by a facet joint on the backside of the spine in his neck became a problem for Mr. Smith.

Mr. Smith continued to have back pain, and in December 2022, Dr. Brennan fused the L4-5 levels of Mr. Smith's lumbar spine. He installed two rods which he secured with six screws and bone grafts. The hardware stabilized Mr. Smith's back and relieved his pain, but about six to eight months before the July 2024 trial, Mr. Smith reported a recurrence of back pain. An x-ray showed that one of the two screws in his tailbone was cracked and that the other had become loose such that bone around that screw began wearing away. As a result, Mr. Smith's back did not fuse and his back pain returned. Dr. Brennan explained that such non-fusion is a risk of this surgery. The revision surgery was scheduled after the trial.

Dr. Brennan testified that fusion failure can also be the result of adjacent segment disease (ASD), which occurs when segments of the spine are successfully fused and the fused vertebrae can no longer bend, causing the adjacent segments of the spine to become overworked and “accelerate[ ] burnout of those levels.” This results in a recurrence of the patient's neck or back pain which Dr. Brennan described as “being as bad as or worse” than the original pain. He explained that to correct this problem, another surgery revising the existing fusion must be performed. Such surgery is more complicated than the original surgery but is required to relieve the patient's pain. Citing studies that covered periods of ten to fifteen years, Dr. Brennan testified that every year there is a two to three percent chance of lumbar fusion patients needing surgery at another level adjacent to a fusion. The same is also true of cervical fusions. In his opinion, Mr. Smith will need a revision of his lumbar fusion and a revision of his cervical fusion due to ASD.

Dr. Brennan referred Mr. Smith to Allied Health, LLC, where he was treated by Dr. Alvah Tyson Wickboldt and Dr. Gassan Chaiban, who are double-board-certified in anesthesiology and pain management and specialize in the treatment of degenerative and traumatic disorders. Mr. Smith's first appointment was in April 2023. During his treatment, the doctors prescribed pain medications and physical therapy to relieve Mr. Smith's pain from his neck and back injuries, as well as pain caused by his diabetic neuropathy. They also recommended a trial with a spinal cord stimulator to determine whether the stimulation would relieve his neuropathic pain. Dr. Wickbolt explained that even with the appropriate surgery, Mr. Smith's neck pain and back pain may continue because of the time that Mr. Smith's spinal cord had been compressed before his surgeries.

In May 2024, Dr. Wickbolt performed a medial branch block on Mr. Smith to “block[ ] the nerve that specifically supplies innervation to the facet joint,” causing his continuing neck pain. The injection provided Mr. Smith with 100% pain relief. Based on this result, Dr. Wickbolt recommended radiofrequency ablation (RFA) to manage Mr. Smith's facet joint pain. He explained that RFA renders the nerve “inoperable” for six to eighteen months and relieves the pain caused by that nerve.

Drs. Brennan, Wickbolt, and Chaiban believed Mr. Smith was forthright and truthful when reporting his complaints and symptoms. They related his neck, back, head, and chest injuries and associated treatment to the accident. None of Mr. Smith's healthcare providers questioned his sincerity and honesty. Dr. Wickbolt explained that Mr. Smith's neck injury was quite painful, making it hard for him to rest because movement caused pain, numbness, and tingling to radiate into his arms.

Due to the facet injury, Mr. Smith continues to have cervical-related pain. At trial, Dr. Wickbolt described Mr. Smith's back pain as significant and causing instability in his legs. In his view, the pain affected Mr. Smith mentally and psychologically. Dr. Wickbolt distinguished pain caused by Mr. Smith's injuries from pain related to his diabetes. Dr. Brennan agreed Mr. Smith had significant pain due to his injuries and explained that his back injury allowed abnormal movement that caused in his back pain and pain to radiate into his legs.

Dr. Wickbolt admitted, however, during cross-examination that Mr. Smith had not reported to him that he had experienced weakness in both his legs before the accident. During redirect, Mr. Smith's counsel addressed the alleged misrepresentations made by Mr. Smith to healthcare providers and allowed Dr. Wickbolt to consider whether he felt Mr. Smith had not been forthright with him in light of the complaints documented in his medical records. Dr. Wickbolt maintained his initial assessment of Mr. Smith's truthfulness.

In January 2022, the defendants had Dr. C. Chambliss Harrod, an orthopedic surgeon, conduct an independent medical examination of Mr. Smith. Dr. Harrod reviewed Mr. Smith's medical records and provided a detailed written review of his findings. The parties stipulated that Dr. Harrod is an expert in spine surgery and that his written review was submitted in lieu of his testifying at trial. Dr. Harrod agreed with Dr. Brennan's decision to fuse Mr. Smith's cervical spine and stated Mr. Smith reported that his neck pain was relieved by the surgery, such that “pretty much all of his pain is in his back.”

Dr. Harrod disagreed with Dr. Brennan's decision to perform a lumbar fusion on Mr. Smith, finding that the x-rays and MRI showed Mr. Smith's back pain was caused by a synovial cyst, not a disc herniation, and that the cyst was not traumatic. Accordingly, he did not believe Mr. Smith's back pain was caused by the accident. Dr. Harrod reported that Mr. Smith complained more about pain in his back than pain in his legs and for that reason, he would have offered him a decompression at L4-5 on his left side, not a fusion. He was reluctant to perform any surgery, especially a fusion, on Mr. Smith because he smokes. He also disagreed with Dr. Brennan on the need for future surgeries due to ASD, stating that the need for additional surgery would “more likely than not [be] related to tobacco use” and not to the accident. Dr. Harrod submitted his reports in January and March 2022, prior to Mr. Smith's lumbar fusion. Therefore, he did not address the failure of Mr. Smith's lumbar fusion.

Dr. Brennan testified that based on research, “there is a small percentage difference in fusion success for chronic smokers over a five-year period.” He further opined that the difference between smokers and non-smokers is “less than 10 percent” and that a fusion patient has a two to three percent annual chance of having a surgical problem at an adjacent level of the fusion.

After conducting a two-day bench trial, the trial court awarded Mr. Smith the following damages, together with all court costs and legal interest from the date of judicial demand until paid:

Pain and Suffering for the Back: $250,000.00 Pain and Suffering for the Neck: $200,000.00 Loss of Enjoyment of Life: $ 50,000.00 Pain and Suffering for Chest Contusion: $ 7,500.00 Pain and Suffering for Head: $ 2,500.00 Past Medicals: $385,859.86 Total: $895,859.86

All parties appealed the judgment.

ASSIGNMENTS OF ERROR

The defendants assert the following assignments of error in their brief:

1. The Trial Court committed legal error when it relied exclusively on the obligations of the defendant driver to allocate all fault to Defendant-Appellant, Emily Semar, under La.R.S. 32:79, but did not consider the obligations of Plaintiff-Appellee, Kerry Smith, under La.R.S. 32:58(A) and Louisiana jurisprudence.

2. The Trial Court committed manifest error when it allocated all fault to Defendant-Appellant, Emily Semar, when the record establishes that Kerry Smith failed to fulfill his duties as a motorist under Louisiana law.

3. The Trial Court committed manifest error when it accepted the testimony and conclusions of David Barcyzk despite the fact that Plaintiff's testimony contradicted Barzyck's explanation of the accident and Barzyck relied on inaccurate assumptions.

4. The Trial Court committed manifest error in finding that Plaintiff established medical causation for his neck and back injuries and damages where the record establishes that Plaintiff was not credible in his reports to his medical providers regarding his medical history, prior and subsequent events, or the impact of the injuries.

In his appellate brief, Mr. Smith assigns four errors with the trial court's judgment:

1. The trial court's verdict was manifestly erroneous where no award for future medical treatment was given despite the overwhelming evidence supporting the need and reasonable cost of Kerry Smith's future medical treatment.

2. The trial court's verdict was manifestly erroneous where no future general damages were awarded despite uncontradicted evidence and testimony of plaintiff's crash-related future pain and suffering, mental anguish, loss of enjoyment of life, disability, and impairment.

3. Whether the trial court erred in failing to award damages for the cervical and lumbar adjacent segment surgeries that Kerry Smith will require due to his crash-related cervical and lumbar fusions.

4. Whether the trial court erred in its award of general damages for Kerry Smith's past and future physical and mental pain and suffering, past and future loss of enjoyment of life, disability, and impairment.

DISCUSSION

Assessment of Fault

In their first two assignments of error, the defendants argue the trial court committed legal error in finding Miss Semar 100% at fault for causing the accident. They urge the trial court's reliance on La.Civ.Code art. 2315, which obligates anyone who causes damage to another to repair the damage, and La.R.S. 32:79, which governs travel on a divided highway. Under La.R.S. 32:79(1), drivers travelling on a roadway that is “divided into two or more clearly marked lanes” must drive their vehicles “as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” The defendants also urge the trial court erred in failing to consider Mr. Smith's duty under La.R.S. 32:58(A) to “drive in a careful and prudent manner, so as not to endanger the life, limb, or property of any person,” and failing to assess fault to Mr. Smith as mandated by La.Civ.Code art. 2323.

Noting the slow speed at which the parties were traveling, the defendants argue that the facts as described by the parties show Mr. Smith should have seen Miss Semar's vehicle and avoided the accident. In making this argument, the defendants do not address the fact that under La.R.S. 32:79(1), “[d]rivers are presumed to be negligent when they cross into another lane of travel and strike a vehicle traveling in its lane of travel.” Williams v. Travelers Indem. Co. of CT, 23-601, p. 5 (La.App. 3 Cir. 3/20/24), 396 So.3d 981, 987, writ denied, 24-668 (La. 10/1/24), 393 So.3d 866. Louisiana jurisprudence applies a higher standard of care to a driver changing lanes, and such driver has the burden of proving that she knew she could make the change safely before she changed lanes. McDowell v. Diggs, 17-755 (La.App. 1 Cir. 10/3/18), 264 So.3d 489. As a result, a person who leaves his lane of travel and causes an accident in that lane is presumed to be at fault and is required to exculpate himself from any fault, however slight, that may have contributed to the accident.” Reichert v. State, Dep't of Transp. & Dev., 96-1419, p. 10 (La. 5/20/97), 694 So.2d 193, 201.

Miss Semar admitted that she did not see Mr. Smith's vehicle until she hit him and that she was at fault in causing the accident. The defendants argue Mr. Smith was driving faster than he state without producing evidence other than a comment by Officer Gary who determined Miss Semar was at fault in causing the accident. The trial court did not err in finding her solely at fault.

Causation

In their third assignment of error, the defendants assert the trial court erred in accepting the testimony and conclusions of Mr. Smith's expert, Dr. David Barczyk, a licensed chiropractor regarding causation. They argue that Mr. Smith's testimony contradicts Dr. Barczyk's explanation of the accident and that Dr. Barczyk relied on inaccurate assumptions when rendering his opinion. Central to this argument is the information retrieved from the event data recorders (EDRs) in Mr. Smith's and Miss Semar's vehicles. EDRs record data just prior to a vehicle crash which may include vehicle speed and other information. The EDR in Mr. Smith's vehicle, a Toyota, did not register an event, while the EDR in Miss Semar's vehicle, a Honda, registered an event occurring at 0.7 miles per hour. The trial court accepted Dr. Barczyk as an expert in chiropractic medicine, motor vehicle crash biomechanics, and accident reconstruction. Dr. Barczyk is also a board-certified chiropractic neurologist and has a certification in occupant kinematics, which is the study of how occupants move within a vehicle in a collision.

The defendants assert the trial court erred in accepting Dr. Barczyk's opinions over the opinions of their expert Dr. Daniel Toomey. The trial court accepted Dr. Toomey, who is a mechanical and biomechanical engineer, as an expert in biomechanics and occupant kinematics. He has bachelor's and master's degrees in mechanical engineering and a doctorate in biomechanical engineering with a focus on impact biomechanics. He has published peer-reviewed scientific literature on accident reconstruction, biomechanics, and restraint system performance.

The defendants argue that because Dr. Barczyk cited and considered various sources of data, e.g., newspaper articles and data regarding other makes and models of vehicles for his opinions, his opinions are not supported by reliable scientific information and should be rejected. They also point out that Dr. Barczyk's initial opinions were rendered without considering the vehicle data downloaded from the parties’ vehicles. Hence, they argue that his opinions on the plaintiffs’ alleged injuries are misplaced because he failed to consider that some of Mr. Smith's pre-existing health issues, e.g., high blood pressure, diabetes, and being overweight, could possibly cause or contribute to some of the complaints that he relates to the accident.

Counsel for both parties thoroughly examined each expert. Defense counsel rigorously cross-examined Dr. Barczyk addressing, in part, his reliance on questionable sources for his opinions. With respect to the newspaper articles he cited, Dr. Barczyk explained that he found the information interesting and that the articles directly quoted Toyota or included statements made by Toyota employees. This information pertained to the reliability of EDR readings. Dr. Barczyk testified EDRs are “fairly accurate” for events that occur at ten miles per hour or higher as opposed to events that occur at speeds lower than ten miles per hour. He also testified that their accuracy for events that occurred at ten miles per hour or lower are not very accurate because EDRs are not thoroughly tested for events under six to seven miles per hour. Based on his research, Dr. Barczyk explained that EDRs record such events as occurring at a speed lower than the actual speed or do not record them as having occurred at all. In his opinion, the accident occurred at a speed of no greater than six miles per hour.

Dr. Barczyk also examined Mr. Smith and reviewed his medical records. He testified that Mr. Smith's description of what occurred when he saw Miss Semar's car in his periphery vision is consistent with what happens in this type of collision, i.e., a hit on the left side causes the driver's head and left shoulder to hit the driver's window. He further explained that Mr. Smith's complaints of neck and back pain, left shoulder pain, headaches, and dizziness are consistent with this type of accident.

Dr. Toomey's testimony was based only on the EDR data and the delta-v. He explained the delta-v is based on the closing speed of each vehicle, which he defined as the change in velocity for two vehicles when they contact each other. He testified that the delta-v of the accident was less than five miles per hour and comparable to activities of daily living. He strongly disagreed with Dr. Barczyk's testimony regarding the accuracy of EDRs, pointing out that EDRs are required by the federal government, determine when airbags are to be deployed, and undergo rigorous testing.

Dr. Toomey acknowledged that unlike Mr. Smith, the occupants in the specific collisions he discussed in his testimony were aware of an impending collision, and, therefore, anticipated it. Nevertheless, he did not believe Mr. Smith's awareness of an impending collision was a factor as to whether he sustained injuries in the collision. Dr. Toomey admitted he could not rule out that Mr. Smith's head hit the window of his door but explained he did not believe it happened. In his opinion, the force exerted on Mr. Smith's car by Miss Semar's car would have been over before his head could close the gap between his shoulder and the door window. Dr. Barczyk opined, however, that when a driver is surprised by a collision such as the one here, his body moves abnormally in under 120 milliseconds and causes asymmetric loads on the spine which the spine is not designed to handle.

Both experts agreed the impact of the two cars was low speed but disagreed over the exact speed and force of impact Miss Semar's vehicle had on Mr. Smith's vehicle. They were thoroughly questioned regarding the basis for and validity of their opinions. The trial court accepted Dr. Barczyk's opinions over Dr. Toomey's. It is interesting that the defendants had Dr. Jeremy Hoffpauir, an accident reconstruction expert, in the courtroom during part of the trial but not did have him testify at trial to contradict Dr. Barzcyk's opinions. Dr. Hoffpauir downloaded the EDR information.

In Johnston v. Vincent, 21-1196, 21-1207 (La. 2/15/23), 359 So.3d 896, 917, (quoting Rando v. Anco Insulations Inc., 08-1163, p. 30 (La. 5/22/09), 16 So.3d 1065, 1088 (footnote omitted)), the supreme court addressed the review of a trier of fact's acceptance of one expert's opinions over another expert's opinions, stating:

Where the testimony of expert witnesses differ, it is the responsibility of the trier of fact to determine which evidence is the most credible. The reviewing court must always keep in mind that if the trial court's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as trier of fact, it would have weighed the evidence differently.

During their examination of each expert, the defendants effectively drew the trial court's attention to the important deficiencies they found with Dr. Barczyk's testimony. This is especially true with his information sources regarding the speed of the vehicles when the accident occurred and the force of impact Miss Semar's vehicle had on Mr. Smith's vehicle. For these reasons, we cannot say the trial court erred in giving more weight to Dr. Barczyk's opinions than Dr. Toomey's.

Medical Causation

In their last assignment of error, the defendants assert the trial court manifestly erred in concluding that Mr. Smith established that his neck and back injuries and damages were caused by the accident. They argue the record establishes that he lacks credibility based on his reports to medical providers regarding his medical history, events that occurred before and after the accident, and the impact the injuries had on him.

“The 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, 94-2615, p. 3 (La. 2/20/95), 650 So.2d 757, 759. A trial court's determination of causation is a factual finding that is reviewed on appeal for manifest error. Thibodeaux v. Donnell, 16-570 (La. 1/20/17), 219 So.3d 274. Thus, an appellate court cannot disturb the trier of fact's finding of causation unless the record does not establish a reasonable factual basis for its finding and the record establishes the finding is clearly wrong or manifestly erroneous. Id.

Prior to this accident, Mr. Smith had a history of diabetes with diabetic nerve pain, high blood pressure, high cholesterol, and depression. Additionally, Mr. Smith had been injured while at work when he stepped in a hole, fell onto his left side, and injured his left knee. In 2012, surgery was performed on his left knee. As a result of the injury, Mr. Smith is disabled and no longer works. His disability limited his activities, but he was still able to cut his grass, participate in fundraisers for his neighborhood, ride his motorcycle on trips, and socialize with his family and friends.

The defendants point out that a review of Mr. Smith's medical records shows there were occasions before the accident when he complained of neck or back pain to a healthcare provider. Notably, no healthcare provider ordered any tests or treatment for his neck or back pain before the accident. Moreover, the records of those providers show that on examination, Mr. Smith had normal range of motion and no pain. The defendants also point out that approximately one month after the accident, Mr. Smith reported to an urgent care facility that he burned his leg when picking up a four-wheeler. At trial, Mr. Smith denied it was a full-size four-wheeler, stating it was a “toy” four-wheeler for his grandson. He explained that his grandson fell when riding the four-wheeler and that he picked it up off his grandson.

The defendants further show that in January 2021, Mr. Smith reported a motorcycle accident to a nurse practitioner, stating he was thrown off his motorcycle. In his deposition, the nurse practitioner acknowledged he initially referenced a motorcycle accident in his note but testified he changed the reference at Mr. Smith's request. He explained that he complied with the request because he did not remember Mr. Smith reporting a motorcycle accident. Mr. Smith explained that he owned a motorcycle and rode frequently on trips to various parts of the country before the accident, but he testified that he no longer owned the motorcycle and had not ridden a motorcycle since the accident.

Drs. Brennan, Wickbolt, and Chaiban believed Mr. Smith was honest and sincere regarding his medical history, reports of pain, and response to their treatment. Dr. Wickbolt testified that he reviewed fifteen years of Mr. Smith's prior medical history and found no evidence that he had x-rays or MRIs of his neck or back prior to this accident. Additionally, Dr. Brennan denied that Mr. Smith's picking up a four-wheeler was an activity that could cause symptoms like those Mr. Smith reported to him at his October 2020 appointment. He explained that eighty percent of Mr. Smith's back pain was caused by instability at the L4-5 segment of his back, not a herniated disc. Though Mr. Smith did have a lumbar herniated disc, Dr. Brennan testified it was not significant. Based on the instability in Mr. Smith's back, Dr. Brennan related Mr. Smith's back injuries to the accident. Our review of the evidence shows the trial court did not err when it rejected the defendants’ claims that Mr. Smith had pre-existing neck and/or back issues that defeat his claims against the defendants.

The defendants further argue the trial court erred in applying the presumption set forth in Housley v. Cerise, 579 So.2d 973 (La.1991), that a plaintiff injured in an accident was healthy before an accident is entitled to a presumption that the accident caused his injuries. Mr. Smith did argue Housely applies to his claims, but there is no indication in the trial court's written reasons or judgment that it applied the presumption. Having considered Mr. Smith's pre-accident condition as established by his medical records and his doctors, we cannot say the trial court erred in finding the accident caused injuries to Mr. Smith's neck, back, chest, and head.

Future Damages

Mr. Smith argues the trial court erred in not awarding him future damages for medical expenses and general damages. We recognize the trial court determined that Mr. Smith and his lay witnesses were not credible. Nonetheless, the trial court also determined that the defendants are liable to Mr. Smith for causing the accident and that Mr. Smith sustained injuries in the accident. Accordingly, we will review the record to determine whether the trial court erred in not awarding Mr. Smith future damages.

The trier of fact has much discretion in making factual findings. General damage awards are findings of fact and are reviewed for abuse of discretion. Kaiser v. Hardin, 06-2092 (La. 4/11/07), 953 So.2d 802. Special damage awards are more specific in nature and are reviewed pursuant to a manifest error standard of review. Allen v. Dep't of Wildlife & Fisheries, 24-418 (La.App. 3 Cir. 2/5/25), 407 So.3d 23, writ denied, 25-290 (La. 5/29/25), 410 So.3d 145. “Pain and suffering, both physical and mental, refers to the pain, discomfort, inconvenience, anguish, and emotional trauma that accompanies an injury.” McGee v. A C And S, Inc., 05-1036, p. 5 (La. 7/10/06), 933 So.2d 770, 775. When determining the amount to be awarded for pain and suffering, its severity and duration must be considered. Young v. Marsh, 49,496 (La.App. 2 Cir. 11/19/14), 153 So.3d 1245.

More specifically, the nature, relative severity, and extent of bodily injuries are qualitative factors that must first be considered by the trier of fact in awarding general damages. The duration of a plaintiff's injury symptoms and the duration of treatment are quantitative factors that must also be taken into account.

Id. at 1252.

With respect to damages, if a “reviewing court finds manifest error in a trier of fact's finding, the court performs a de novo damages review unbound by the [highest/lowest] limitations of Coco [v. Winston Industries Inc., 341 So.2d 332 (La. 1976)].” Thibodeaux, 219 So.3d at 279. Pursuant to Coco, 341 So.2d 332, when a trier of fact's damage award is found to be an abuse of discretion, the award can only be modified to the highest/lowest award within the court's discretion. On de novo review, an appellate court is not required to defer to a trial court's assessments of credibility unless “the trial court's path may be reasonably discerned, such as when its findings, reasons and exercise of discretion are necessarily and clearly implied by the record.” Leal v. Dubois, p. 4, 00-1285 (La. 10/13/00), 769 So.2d 1182, 1185 (quoting Bloxom v. Bloxom, 512 So.2d 839, 843 (La.1987).

Our review of the record does not reveal or imply the trial court's reasons for concluding Mr. Smith and his personal witnesses lack credibility. Accordingly, we do not defer to that assessment.

Medical Expenses

Mr. Smith seeks future medical expenses totaling $940,540.00. The defendants argue the trial court's refusal to award Mr. Smith future medical expenses is supported by its assessment of Mr. Smith's credibility, his smoking, and his failure to pursue the non-prescription pain management treatment recommended by Drs. Chaiban and Wickbolt prior to having surgery on his back.

To recover future medical expenses, Mr. Smith must prove that he will more probably than not incur the expenses he seeks to recover. Menard v. Lafayette Ins. Co., 09-1869 (La. 3/16/10), 31 So.3d 996. A claim for future medical expenses must be established with some degree of certainty; however, it is recognized that such claims are somewhat speculative. Id. As a result, these awards “generally do not involve determining the amounts, but turn on questions of credibility and inferences, i.e., whose experts and other witnesses does [sic] the [trier of fact] believe?” Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law § 7.02, 7–4.

We first consider Mr. Smith's claim for medical expenses associated with the revision surgery. The only evidence in the record regarding Mr. Smith's need for revision surgery is Dr. Brennan's testimony and the x-ray showing a cracked screw and loose screw. No evidence shows that Dr. Harrod saw Mr. Smith or reviewed his medical records after March 2022. More importantly, there is no evidence that anything but the failure of two screws securing the fusion hardware necessitated the revision surgery. In refusing to award Mr. Smith expenses for the surgery, the trial court failed to apply a basic tenet of Louisiana tort law that “a defendant takes his victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct.” Lasha v. Olin Corp., 625 So.2d 1002, 1005 (La.1993). Accordingly, we reverse the trial court's denial of future medical expenses and award Mr. Smith $209,779.00 for the revision surgery.

Dr. Brennan also testified that due on the nature of ASD, he believes Mr. Smith will need a second revision of his lumbar fusion and estimated the surgery would cost $110,978.00 and a revision of his cervical fusion at a cost of $91,866.00. In Dr. Harrod's opinion, it is “quite unlikely” that Mr. Smith will need another cervical fusion because all four levels of his cervical spine were fixed. He further testified that if Mr. Smith had a lumbar fusion, he would be much less likely to require revision surgery if he quit smoking. Dr. Brennan agreed that smoking increased the odds of a fusion failing but disagreed as to the extent smoking increased such failures.

On de novo review, we accept Dr. Brennan's opinions over Dr. Harrod's opinions regarding ASD and the likelihood of Mr. Smith requiring additional surgeries to compensate for the detrimental effect Mr. Smith's fusions will likely have on the adjacent segments of his spine. Accordingly, we award him $91,866.00 for revision of his cervical fusion and $110,978.00 for revision of his lumbar fusion.

Dr. Wickbolt testified that Mr. Smith's life expectancy was 23.9 years from the time of trial. He recommended that Mr. Smith see him six times a year for the rest of his life for pain management at a total cost of $71,700.00. He further recommended continued physical therapy ($35,850.00), pain medications ($54,205.00), as well as updated x-rays and MRIs of his neck and back every five years ($22,562.00), annual RFAs ($293,600.00) and a spinal cord stimulator trial ($50,000.00).

Dr. Wickbolt explained that because the median blocks relieved 100% of Mr. Smith's neck pain, RFAs are needed to relieve the neck pain caused by his facet joint injury. The defendants argue this recommendation is excessive and cite cases in which other courts refused to award the amounts physicians recommended for future RFAS, but they did not present any evidence at trial contradicting Dr. Wickbolt's testimony. In Cooley v. Adgate, 52,000 (La.App. 2 Cir. 5/30/18), 248 So.3d 753, the second circuit reversed the trial court's denial of future RFAs for a plaintiff who injured her back in the accident at issue and awarded her the cost of the treatments for her expected lifetime as recommended by her treating physician.

Dr. Wickbolt also recommended future medical expenses for a spinal cord stimulator trial to address Mr. Smith's future back pain. He explained that Mr. Smith will more likely than not have continued nerve-based pain in his back into his legs after his revision surgery because his spinal cord was compressed because his lumbar fusion failed.

Mr. Smith did not report a recurrence of neck pain until December 2023 or January 2024. Therefore, Dr. Harrod did not address the pain caused by his cervical facet joint and damaged spinal cord, his need for RFAs, or a spinal cord stimulator trial to manage the continuing pain related to the compressions in his spine caused by his injuries. Dr. Brennan testified that the compression damage caused to Mr. Smith's spinal cord is permanent because the spinal cord does not heal. He opined that Mr. Smith's neck and back pain and discomfort will worsen over time. His testimony was unrebutted. For these reasons, we award Mr. Smith $527,917.00 for future pain management treatment as outlined by Dr. Wickbolt.

General Damages

As with the future medical expenses, we will perform a de novo review of the trial court's awards for future general damages. Mr. Smith argues he is entitled to damages for future pain and suffering, disability, impairment, and loss of enjoyment of life and asserts that the lowest reasonable amount of general damages this court should award is $1,000,000.00. Disability is a category of general damages to compensate for “any permanent disability or impairment that is secondary to the injuries sustained in the accident.” Guidry v. Allstate Ins. Co., 11-517, p. 14 (La.App. 3 Cir. 12/21/11), 83 So.3d 91, 103, writ denied, 12-225 (La. 3/30/12), 85 So.3d 121. Loss of enjoyment of life encompasses the “detrimental alterations of the person's life or lifestyle” and the “inability to participate in the activities or pleasures of life that were formerly enjoyed prior to the injury.” McGee, 933 So.2d at 775.

Mr. Smith testified regarding the ways in which the accident and his injuries have impacted his life. He also presented the testimony of his brother, Troy Smith, and a friend, John Gardner. Mr. Smith had a pre-existing disability due to his work accident that affected his left leg and side. The evidence established that even with his prior disability Mr. Smith was able to continue enjoying many of the activities he enjoyed before his work accident.

Mr. Smith argues that due to his injuries and two fusion surgeries, his activities are now limited by his continuing neck and back pain which affects his relationships with his family members and friends. He does not go out and socialize. He can no longer go fishing, shoot hoops with his friends, participate in baseball/softball games or fundraising for neighborhood causes. He had to give up riding his motorcycle and sold it. He can no longer play with his grandchildren as he did before the accident. His injuries also hamper access to the mobile home and have caused him to be unsteady on his feet and concerned about falling.

In Fontenot v. UV Insurance Risk Retention Group, Inc., 20-361, 29-362 (La.App. 3 Cir. 4/14/21), 359 So.3d 36, writs denied, 21-656 (La. 10/5/21), 325 So.3d 357; 20-362 (La. 4/14/21), 318 So.3d 314, this court increased the jury's awards to one plaintiff, who underwent a three-level cervical discectomy and fusion and may have to undergo an additional future surgery of $100,000.00 to $150,000.00 for pain and suffering and $50,000.00 to $100,000.00 for mental anguish, respectively. The jury's awards to the other plaintiff, who had two back surgeries: a hemilaminectomy, discectomy, and foraminotomy on the right side of his back, a lumbar laminectomy and fusion at L4-5, and a cervical discectomy of $50,000.00 each for pain and suffering and mental anguish were increased to $250,000.00 and $150,000.00, respectively.

In Huntley v. 21st Century Premier Insurance Co., 16-514 (La.App. 3 Cir. 11/2/16), 204 So.3d 1085, writ denied, 17-148 (La. 3/13/17), 216 So.3d 803, this court affirmed a jury's award of $150,000.00 for past, present, and future pain and suffering for a cervical fusion and the potential of a future lumbar surgery was affirmed. In Tripp v. DG Louisiana, LLC, 23-487 (La.App. 5 Cir. 4/24/24), 386 So.3d 1197, the court affirmed an award of $200,000.00 for past and future pain and suffering, mental anguish, emotional distress to a plaintiff who suffered injuries to her lower back, sacrum, and left leg for which she had an SI fusion surgery, a second surgery to replace a screw that affected a nerve in her leg, two rounds of transforaminal epidural steroid injections, and a fusion at L4-5 after the nerve pain in her leg did not resolve.

In Collatt v. Boudreaux, 19-103 (La.App. 3 Cir. 11/25/19), 2019 WL 6482247, (unpublished), this court increased the jury's award of $180,000.00 to $400,000.00 to a plaintiff who endured twenty months of cervical and lumbar pain prior to a two-level anterior cervical discectomy and fusion surgery following an automobile accident. The plaintiff was expected to need a two-level lumbar surgery in the future.

We affirm the trial court's general damage awards to Mr. Smith totaling $510,000.00 and award him $100,000.00 for future pain and suffering and $50,000.00 for future loss of enjoyment of life to Mr. Smith.

Court Costs

The defendants assert the trial court erred in assessing all costs against them because Mr. Smith did not prove he is entitled to recover all the damages and costs he originally sought to recover and the trial court found that Mr. Smith and his lay witnesses lacked credibility. This court recently addressed the assessment of court costs in Allen v. Department of Wildlife & Fisheries, 24-418 (La.App. 3 Cir. 2/5/25), 407 So.3d 23, writ denied, 20-290 (La. 5/29/25), 410 So.3d 145, restating long-held principles of cost assessment based on La.Code Civ.P. art. 1920: 1) the trial court has broad discretion in assessing costs as it deems fair and equitable, and 2) its assessment cannot be reversed unless it is shown to be inequitable. Furthermore, costs can be assessed based on the fault assessed to the parties. Bellard v. S. Cent. Bell Tel. Co., 96-1426 (La.App. 3 Cir. 8/27/97), 702 So.2d 695, writ denied, 97-2415 (La. 12/12/97), 704 So.2d 1202. Having affirmed the trial court's finding of liability, we find no abuse of discretion in the trial court's assessment of all costs to the defendants.

DISPOSITION

For the reasons discussed, we affirm the trial court's findings that Miss Semar was solely at fault in causing the accident with Mr. Smith. After conducting a de novo review of damages, we affirm the trial court's award of $385,859.86 and award Mr. Smith future medical expenses totaling $687,696.00. We affirm the trial court's awards in the amount of $510,000.00 for pain and suffering and $50,000.00 for loss of enjoyment of life and award an additional $100,000.00 for future pain and suffering and $50,000.00 for future loss of enjoyment of life. All costs are assessed to Privilege Underwriters Reciprocal Exchange and Steve O. Semar.

AFFIRMED IN PART, AMENDED IN PART, AND RENDERED.

PICKETT, Chief Judge