AGENOR v. SUAREZ (2025)

Appellant, Mr. Jean Agenor, seeks review of the 24th Judicial District Court's July 12, 2022 judgment reflecting a jury verdict awarding him $7,500 for past pain and suffering and $5,000 for past medical expenses for damages sustained in a motor vehicle accident that took place in 2013. For the following reasons, we affirm the district court's judgment.

FACTS AND PROCEDURAL HISTORY

On October 24, 2013, Mr. Agenor was travelling northbound on Manhattan Avenue in Harvey when he was rear-ended by Defendant/Appellee, Christy Suarez, in her 2010 Volvo SUV, insured by co-Defendant Progressive. The impact caused Mr. Agenor's 2007 Honda CRV, which had come to a complete stop, to collide into a Cadillac Escalade. Ms. Suarez's vehicle was totaled. The officer on the scene found Ms. Suarez in violation of La. R.S. 32:81 (following too closely). EMS was called, and Mr. Agenor, who was 37 years old at the time of the accident, declined immediate medical attention. However, he began to experience severe back pain that evening or the next morning, which he recalled felt “like a hammer”. On October 22, 2014, Mr. Agenor filed a petition for damages against Ms. Suarez, her insurer, Progressive Insurance Company, and his own uninsured/underinsured motorist policy provider, State Farm Mutual Automobile Insurance Company. In his petition, Mr. Agenor averred he has suffered lumbar spine injuries since the collision, significantly altering his life; he sought damages for past, present and future pain and suffering, mental anguish, disabilities, medical expenses, and lost wages and earning capacity.

After nearly nine years of discovery and delay, the case proceeded to trial on June 13, 2022. Counsel for plaintiff and defense entered exhibits into evidence and proceeded with their opening arguments During opening statements, the defense referred to Westbank Healthcare Center as “a litigatory clinic.” Plaintiff's counsel objected. At the bench conference that followed, the court admonished defense counsel that he was being “argumentative” and advised him to “Just state the facts.” The defense continued, stating what evidence it intended to present, including an admission from one of Agenor's treating physicians, Dr. Rodriguez, under oath that secondary gain, such as a lawsuit, would be a reason that a plaintiff might continue to treat and continue to treat and continue to treat.” Shortly following that statement, the defense concluded its opening statement and Plaintiff's counsel requested to approach again. Counsel argued that the defense cannot “argue bias of witnesses and [attack experts’] credibility in [the] opening [statement].” Plaintiff's counsel also argued that the defense was putting them on trial. After hearing both sides’ argument, the judge denied the motion for mistrial and overruled Plaintiff's objection. The trial proceeded with the presentation of evidence and testimony of witnesses.

Following the testimony of Ms. Juarez and Mr. Agenor, the trial court heard argument on the introduction of the deposition testimony of two of Mr. Agenor's treating physicians, Dr. Najeeb Thomas and Dr. David Wyatt. Defendants argued they contacted Mr. Agenor's counsel four separate times in writing advising them and the court that they intended to use the doctors’ deposition testimony pursuant to Article 1450 (A)(5) between June 2017 and November 2020. If Agenor objected, Article 1450 allows 10 days to pay the experts’ fees and expenses. Defendants argued the court was authorized to allow the use of the depositions if it felt justice so required. Mr. Agenor's counsel countered that (1) he did not see the subpoena returns in the record and that Article 1450 refers to that party's expert only; (2) the defense should have paid the doctors to testify in person if they wanted them there; (3) the deposition testimony was not proper because he did not receive advance notice of which portions of the depositions were being introduced into evidence; and (4) the deposition subjects had not been qualified as experts and he had not made that stipulation. Plaintiff's counsel also argued that the CV was hearsay and the attachments to the deposition could not be admitted.

The court allowed the depositions in and noted Mr. Agenor's “blanket objection.” Counsel was advised that he could also object to the testimony as it was read into the record, if necessary.

At the end of trial, the eleven-person jury returned with a verdict in Plaintiff's favor, for medical expenses of $5,000.00 and general damages of $7,500.00. The trial court also reserved defendants’ right to move to tax costs pursuant to La. C.C.P. art. 970.¹ Mr. Agenor timely filed a Motion for Judgment Notwithstanding the Verdict or, Alternatively for New Trial/Additur on July 21, 2023. Mr. Agenor alleged that he incurred over $57,000 in medical expenses and the jury's awards were abusively low. He also complained that the defense's improper arguments during opening statements “seriously influenced the jury, improperly affected its verdict, and undermined the judicial process.” The motion was heard in January 2023. The trial court denied the motion without reasons on February 7, 2023. This timely appeal followed.

ASSIGNMENTS OF ERROR

On appeal, Mr. Agenor raises the following assignments of error:

1. The trial court erred in denying Mr. Agenor's Motion for Mistrial at the conclusion of Defendants/Appellants’ Opening Statement.

2. The trial court erred in allowing the depositions of two of Mr. Agenor's treating physicians to be read into evidence when they were not unavailable.

3. The trial court erred in allowing the 1442 deposition of the LA Health Solutions LLC's corporate representative into evidence to buttress Appellees’ position that this case was not about Mr. Agenor's injuries and Treatment.

4. The trial court erred when it failed to award Mr. Agenor the full amount of his medical bills.

5. The trial court erred in awarding a nominal amount in general damages for diagnostic and pain management procedures.

6. The trial court erred in denying Plaintiff/Appellant's Motion for Judgment Notwithstanding the Verdict or In the Alternative, Motion for New Trial/Additur.

We consider these assignments of error in our discussion below.

LAW AND DISCUSSION

Defendant's opening statement and the Motion for Mistrial

In his first assignment of error, Mr. Agenor argues that the trial court erred in denying his motion for mistrial based on the content of defense counsel's opening statement. The court on its own motion, or on the motion of any party, after hearing, may grant a mistrial. La. C.C.P. art. 1631 (C); Giglio v. ANPAC Louisiana Ins. Co., 20-209, p. 5 (La. App. 5 Cir. 12/23/20), 309 So.3d 416, 421. A motion for mistrial in a civil case should be granted under the following circumstances: 1) when, before the trial ends and the judgment is rendered, the trial judge determines that it is impossible to reach a proper judgment because of some error or irregularity, and 2) where no other remedy would provide relief to the moving party. Id.

While the trial court is granted great discretion in determining whether to grant a mistrial, the trial court's judgment denying a motion for mistrial may be reversed if: 1) the conduct complained of makes it impossible for the jury to reach a proper verdict; 2) no other remedy would provide relief to the complaining party; or, 3) the admission of the question resulted in “prejudicial misconduct” to the complaining party. Id., citing Alfonso v. Piccadilly Cafeteria, Inc., 95-279, p. 3 (La. App. 5 Cir. 11/28/95), 665 So.2d 589, 593, writ denied, 95-3119 (La. 2/16/96), 667 So.2d 1060. The appellate standard of review of the ruling on a motion for new trial is whether the trial court abused its discretion. Giglio, supra at 422.

The purpose of an opening statement is to acquaint the jury with the case to prevent confusion, and to protect a litigant from being taken by surprise or prejudiced in the preparation of his defense. Ramelow v. Bd. of Trustees, Univ. of Louisiana Sys., 03-1131, p. 5 (La. App. 3 Cir. 3/31/04), 870 So.2d 415, 419, writ denied, 04-1042 (La. 6/18/04), 888 So.2d 184.

Counsel has great latitude in presenting opening (or closing) arguments to a jury. Starks v. Kelly, 435 So.2d 552, 554 (La. App. 1st Cir. 1983). The trial judge has much discretion in regulating and controlling such arguments within proper bounds. Id. The ruling of the trial court on possible prejudicial remarks of counsel before a civil jury is accorded great weight and will not be reversed absent an abuse of discretion. Lavigne v. Allied Shipyard, Inc., 2018-0066, p. 22 (La. App. 4 Cir. 1/15/20), 289 So.3d 1088, 1104.

“Whether statements by counsel in argument in a civil jury trial are proper must be determined by the facts, conduct, and atmosphere of that particular trial and the arguments of opposing counsel.” Lavigne v. Allied Shipyard, Inc., 18-66, p. 21 (La. App. 4 Cir. 1/15/20), 289 So.3d 1088, 1104. Id.² Further, the Louisiana Supreme Court has held a reviewing court “must be thoroughly convinced the remark influenced the jury and contributed to its verdict” before it finds an improper argument constitutes reversible error. Simon v. State Farm Mut. Auto. Ins. Co., 09-1083, p. 8 (La. App. 3 Cir. 6/9/10), 43 So.3d 990, 998, writ denied, 10-1613 (La. 10/29/10), 48 So.3d 1094.

Mr. Agenor argues that the defense put him, his counsel, and the treating physicians on trial. He alleges they made “unfounded and unsupportable inflammatory statements to imply to the jury that Jean's counsel and treating physicians conspired as part of a larger scheme to manufacture not just his injuries but those of plaintiffs generally, and engage in litigation, not because of injuries and other damages caused by the negligence of another․ but instead to achieve monetary gain.”

Upon review, we find that the statements made during the defense's opening statement put the jury on notice of the facts for which it later offered supporting evidence.

The testimony elicited from Dr. Wyatt and Dr. Rodriguez supported the defense's assertion that most of their clients were plaintiffs in personal injury lawsuits. Mr. Agenor testified that his attorneys referred him to physicians when he told them he was in pain. Two experts testified that it was more likely than not that Mr. Agenor's injuries had resolved by the end of February 2014; at least two more of his treating physicians agreed that most soft tissue injuries resolve in three to four months. The defense presented competent evidence that called into question whether all Mr. Agenor's injuries were caused by the accident at issue.

We also observe, that at the start of trial, the court advised the jury “your verdict must be based solely on legally admissible evidence.” Defense counsel observed that the jury could hear Mr. Agenor's counsel argue its objection regarding their opening statement. Further the court properly charged the jury, stating in pertinent part:

The evidence which you are to consider consists of the testimony of the witnesses, the documents that have been admitted into evidence and any fair inference and reasonable conclusions which you can draw from the evidence submitted to you. Neither the written pleadings in this case, nor the arguments of the lawyers, nor any comment or ruling which I may have made is evidence.

Following this instruction, the jury found that Agenor did not meet his burden of proving the causal relationship between the accident and injuries he received treatment for after February 2014. Considering the foregoing, we find that defense counsel's remarks during opening statements did not improperly influence the jury, affect the verdict, or undermine the judicial process. See Simon, supra at 998. Therefore, the court did not abuse its discretion when it denied Mr. Agenor's motion for mistrial. This assignment of error is without merit.

The Admission of the Doctors’ Depositions and LA Health Solutions 1442 Depostion at trial.

In his second and third assignments of error, Mr. Agenor argues that the trial court erred in allowing the depositions of two treating physicians into evidence when they were not unavailable and in allowing into evidence the deposition of a corporate representative that was not related to Plaintiff's injuries or treatment.

Mr. Agenor argues the trial court committed legal error when it allowed the deposition testimony of Dr. Najeeb Thomas and Dr. David Wyatt to be read into the record at trial. He avers that the court did not comply with the requirements of La. C.C.P. art. 1450 or La. C.E. art. 804. He maintains that a treating physician should not be considered an expert under Article 1450(A) when they have not been retained for purposes of litigation and Drs. Thomas and Wyatt were not his “designated experts.” Further, Defendants did make the required showing of the doctors’ unavailability as required. By Defendants’ own admission, they were able to procure Drs. Thomas and Wyatt by legal process.

Moreover, during opening statements, defense counsel “candidly stated that the decision to rely on deposition testimony to shorten the trial ‘all in an effort to get you out of here’ —not because of actual witness unavailability.” Mr. Agenor urges this admission undermines any argument that the use of depositions was legally justified. He also contends Defendants did not provide opposing counsel with the required page and line designations in advance of trial, thereby depriving Plaintiff of an opportunity to fairly evaluate or counter the selected excerpts – and the excerpts were chosen ad hoc during the trial.

Mr. Agenor contends the trial court's admission of the depositions is an issue of law, and therefore this Court must do a de novo review. The trial court's failure to respond to counsel's repeated objections compounded the prejudice already introduced by defense counsel's declarations regarding bias during their opening statement.

In response to Mr. Agenor's assignments of error, defendants argue first that the doctors were unavailable at trial; they issued subpoenas for the treating physicians to appear and the physicians “willfully refused to appear” because they claimed that they must be paid expert fees before honoring a trial subpoena. Further, defendants argue that Article 1450(A)(3)(c) is satisfied because “[i]t is fundamentally reasonable and in the interest of justice for the jury to hear from all of Agenor's treating physicians to appropriately evaluate the claims being made by Agenor about the cause and extent of his alleged injuries and medical care”. (Emphasis in original).

The trial court has much discretion in determining whether to allow the use of deposition testimony at trial, and its decision will not be disturbed upon review in the absence of an abuse of that discretion. Bourgeois v. A.P. Green Indus., Inc., 06-87 (La. App. 5 Cir. 7/28/06), 939 So.2d 478, 493–94, writ denied, 06-2159 (La. 12/8/06), 943 So.2d 1095. The trial court further has wide discretion in determining a witness’ unavailability. Id. Further, under La. C.C.P. art. 1450(C), the court in its discretion shall resolve conflicts between the article and La. C.E. art. 804.

Mr. Agenor argues in assignment of error number 3 that the trial court committed reversible error when it denied his July 15, 2019 Motion in Limine and allowed Defendants to read portions of the 1442 Deposition of the Corporate Representative of LA Health Solutions, a non-party.³ He contends that the deposition excerpts of Jeni Witfield focused on the companies “marketing, finances, and attorney relationships – irrelevant topics aimed at discrediting [his] doctors and counsel” instead of “address[ing his] injuries or the reasonableness of treatment”. Mr. Agenor avers this deposition testimony, along with utterances made during opening statements “tainted the jury's impartiality from the outset.”

Concerning the admission of the testimony of the LA Health Solutions representative, Defendants argue that Plaintiff's counsel was present at the deposition and had an opportunity to examine the representative. Further, Mr. Agenor had the opportunity to object during the recitations at trial and could have also introduced other selections from the depositions. Defendants also argue that Mr. Agenor has failed to show how he was prejudiced by the admission of the depositions as there were no meaningful discrepancies between Witfield/LA Health Solutions’ 1442 deposition testimony and Dr. Rodriguez's testimony – and Mr. Agenor did not object to the doctor's testimony.

Upon review of the record, we find that the trial court did not abuse its discretion in admitting the depositions of medical expert witnesses and the corporate representative of LA Health Solutions in lieu of live testimony at trial. This litigation began over ten years ago. The defense first advised Mr. Agenor in 2017 that it intended to use the doctors’ depositions at trial. LA Health Solutions (Witfield) 1442 deposition was taken in 2019 and Mr. Agenor filed a motion in limine to exclude that testimony five months later. The court denied the motion at the beginning of the June 2022 trial. The depositions were read into the record, and the trial transcript does not show that the Plaintiff objected to any of the specific testimony given or even had any trouble following along with the recitation of the testimony into the record.

We also find that the trial court did not abuse its discretion in allowing the witnesses to testify via deposition whether they were unavailable or not. Though the parties did not agree to allow the deposition testimony, Defendants advised the court and Mr. Agenor years prior to trial of their intent to use the depositions. Further, Mr. Agenor had the opportunity to cross-examine the witnesses during the depositions; argue against the admission of the deposition testimony; and he could have subpoenaed the witnesses himself or entered other testimony from the depositions himself. See Hortman v. Louisiana Steel Works, 96-1433, p. 6 (La. App. 1 Cir. 6/20/97), 696 So.2d 625, 629, writ denied, 97-1919 (La. 11/7/97), 703 So.2d 1268.

Thus, we find, pursuant to La. C.C.P. art. 1450(A)(3)(e)⁴ , that the trial court neither abused its discretion, nor committed manifest error when it allowed the defense to use deposition testimony, regardless of the availability of the witnesses. Further, “any error in the introduction of a deposition into evidence in lieu of live testimony, is subject to a harmless error analysis.”

We recognize the trial transcript does not show that the court found the witnesses unavailable. However, had the court found that the witnesses were unavailable in error, the testimony provided by the live witnesses at trial was very similar to the deposition testimony regarding the interpretation of the MRIs, how patients were billed and referred, and the likely injury Mr. Agenor sustained from the subject accident and how long it would take to heal. Moreover, years have passed since Dr. Thomas and Dr. Wyatt treated Mr. Agenor. The depositions were taken only a few years after the accident and may have been more useful to the jury during deliberations. Therefore, any error associated with the admission of depositions was harmless. Accordingly, we conclude that assignments of error three and four are without merit.

Review of General Damages and Specific Damages

In his fourth and fifth assignments of error, Mr. Agenor argues that the jury erred in failing to award him the full amount of the medical bills and in awarding only a nominal amount in general damages for diagnostic and pain management procedures.

In this case, the jury awarded general damages in the amount of $7,500.00 and past medical expenses in the amount of $5,000.00. Mr. Agenor argues there was no dispute among the physicians regarding the location of his injury and he should have been awarded $100,000 in general damages for his lumbar injury. (Emphasis added). Defendants argue Dr. Thomas, Dr. Wyatt and the IME, Dr. Awasthi, all agreed that Mr. Agenor's injuries related to the subject accident were limited to soft-tissue injuries that would have been resolved by the time Mr. Agenor was discharged from his original treatment plan in February 2014.

An appellate court will not second-guess the fact-finder's credibility determinations. See Pierre v. Pierre, 23-470 (La. App. 5 Cir. 2/21/24), 383 So.3d 1028, 1044, writ denied, 24-366 (La. 4/30/24), 383 So.3d 931. Where conflict exists in the testimony, a factfinder's reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder's. Id. An appellate court may not set aside a jury or trial court's finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Stobart v. State, Dept. of Transp. and Dev., 617 So.2d 880, 882 (La. 1993).

In review of a trier of fact's general damage award, an appellate court must consider relevant prior general damage awards as guidance in determining whether a trier of fact's award is an abuse of discretion. Vincent v. Nat'l Gen. Ins. Co., 23-554 (La. App. 5 Cir. 10/9/24), 399 So.3d 140, 157, reh'g denied (Oct. 24, 2024), writ denied, 24-1441 (La. 2/19/25), 400 So.3d 933, citing Pete v. Boland Marine & Mfg. Co., LLC, 23-170 (La. 10/20/23), 379 So.3d 636, 639. General damages are those that may not be fixed with pecuniary exactitude; instead, they involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or lifestyle that cannot be definitely measured in monetary terms. Id.

In a personal injury suit, the plaintiff must prove by a preponderance of the evidence a causal relationship between the injury sustained and the accident that caused the injury, and that the injuries were not the result of separate, independent, or intervening causes. § 5:3. Personal injury suits—Causal relationship, La. Prac. Civ. Trial § 5:3 (2025). The test for determining the causal relationship between the accident and the 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. Id., citing Yohn v. Brandon, 01-1896 (La. App. 1 Cir. 9/27/02), 835 So.2d 580, writ denied, 02-2592 (La. 12/13/02), 831 So.2d 989.

A jury could only reduce plaintiff's award for past medical expenses if it found that not all his injuries were caused by the defendant's negligence or that he incurred unnecessary treatment in bad faith. Ochoa v. Aldrete, 21-632, p. 12 (La. App. 5 Cir. 12/8/21), 335 So.3d 957, 968.

First, we review the jury's awards of $7,500.00 in general damages to determine “whether the trier of fact ‘abused its much discretion.’ ” See Vincent, supra. Recently, the fourth circuit found that awarding $5,000 for a right ankle sprain where the injury required seven weeks of physical therapy and the plaintiff missed seventy days of work was not an abuse of discretion. See Preston v. Certain Underwriters at Lloyd's London, 23-277, p. 9 (La. App. 4 Cir. 1/22/24), 381 So.3d 827, 834, citing Joseph v. Houston, 04-350 (La. App. 5 Cir. 10/12/04), 886 So.2d 1133 (finding that the trial court did not abuse its discretion in awarding plaintiff $2,500 in general damages per month of chiropractic treatment).

In Sanchez v. Dubuc, 12-526, p. 10 (La. App. 5 Cir. 2/21/13), 110 So.3d 1140, 1146, we found that there was support in the jurisprudence for an award of $2,000 – $2,500 per month for soft tissue injuries. See also Schindler v. Harrah's Las Vegas, Inc., 07-827, p. 7 (La. App. 4 Cir. 1/23/08), 976 So.2d 774, 779, writ denied, 08-271 (La. 3/28/08), 978 So.2d 310 (acknowledging previously held that an award of $2,500 per month for general damages for soft tissue injuries while plaintiff is actively treating is a reasonable award and reducing plaintiff's award to $7,500 for a three-month aggravation of an existing wrist injury). Considering the foregoing, we find no error in the jury's award of medical expenses.

We cannot say that the jury committed manifest error or was clearly wrong when it credited the testimony of Drs. Thomas, Wyatt, and Awasthi over the testimony of Dr. Rodriguez – the only treating physician who testified that all the medical interventions he provided to Agenor more than four months after the subject accident were related to the accident. Further, even Dr. Rodriguez acknowledged that most soft tissue injuries resolve in six weeks to three months, and herniated discs usually resolve within six months, and he did not see a lot of herniated discs caused by a wreck or trauma. Therefore, we find the jury did not err in finding that the injuries related to the accident had resolved by February 12, 2014 and awarding damages for medical expenses and pain and suffering accordingly.

Review of Award for Medical Expenses

The jury awarded Mr. Agenor specific damages in the amount of $5,000 for medical expenses. Mr. Agenor argues that the trial court committed legal error when it failed to award him the full amount of his medical expenses, $57,044.67. Defendant counter that the jury clearly found any treatment received after February 2014 was not due to injuries caused by the subject accident and he would not be compensated for those expenses.

Special damages, such as medical expenses, are those which either must be specially pled or can be determined with relative certainty. Crawford v. Allstate Ins. Co., 21-117, p. 8 (La. App. 5 Cir. 11/3/21), 330 So.3d 1183, 1190. In reviewing the trial court's factual conclusions regarding special damages, an appellate court must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court's conclusions, and the finding must be clearly wrong. Id.

Upon review of the record, we find that there was a reasonable basis for the jury's award, and it did not err it determining its award. Again, the jury, after considering all the evidence, credited the doctors’ testimony that opined that Mr. Agenor's injuries related to the subject accident had resolved by February 12, 2024. Finding no mistake in the jury's determination of causation and which injuries should be attributed to the subject accident, we will not disturb its award of medical expenses.

Mr. Agenor's Motion for Judgment Notwithstanding the Verdict or In the Alternative, Motion for New Trial/Additur.

In his sixth assignment of error, Mr. Agenor argues the trial court erred in denying his motion for judgment notwithstanding the verdict (JNOV) and motion for new trial. The standard of review for a JNOV on appeal is a two-part inquiry. The reviewing court must initially determine if the trial court erred in granting the JNOV. Yohn v. Brandon, 01-1896 (La. App. 1 Cir. 9/27/02), 835 So.2d 580, 585, writ denied, 02-2592 (La. 12/13/02), 831 So.2d 989. This is done by the reviewing court using the same criteria used by the trial judge to decide whether to grant the motion. Id., citing Joseph v. Broussard Rice Mill, Inc., 00-0628, p. 5 (La. 10/30/00), 772 So.2d 94, 99. In other words, considering all the evidence in the light most favorable to the party opposing the motion for JNOV, do the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict? Id. “If the answer to that question is in the affirmative, then the trial judge was correct in granting the motion. If, however, reasonable persons in the exercise of impartial judgment might reach a different conclusion, then it was error to grant the motion, and the jury verdict should be reinstated.” Id. If we determine that the trial court correctly applied its standard of review as to the jury verdict, the appellate court reviews the JNOV using the manifest error standard of review. Id.

A new trial shall be granted on the contradictory motion of any party when the verdict or judgment appears clearly contrary to the law and the evidence. La. C.C.P. art. 1972. An appellate court reviews a ruling on a motion for new trial under an abuse of discretion standard of review. Sunset Harbour, LLC v. Brown, 22-572, p. 9 (La. App. 4 Cir. 1/9/23), 356 So.3d 1167, 1173.

Louisiana Code of Civil Procedure article 1814 states that if the trial court is of the opinion that the verdict is so excessive or inadequate that a new trial should be granted for that reason only, it may indicate to the party or his attorney within what time he may enter a remittitur or additur. This remittitur or additur is to be entered only with the consent of the plaintiff or the defendant, as an alternative to a new trial, and is to be entered only if the issue of quantum is clearly and fairly separable from other issues in the case. If a remittitur or additur is entered, then the court shall reform the jury verdict or judgment in accordance therewith. David R. Frohn, Esq., La. Prac. Civ. Trial § 14:21. Remittitur or additur as alternative to new trial, (Aug. 2025 Update).

Considering the medical testimony contained in the record presented, and because we found no merit in the assignments of error regarding the trial court's rulings regarding opening statements and the use of deposition testimony, or the jury's damages awards, we likewise find the sixth assignment of error without merit.

DECREE

The judgment of the district court is affirmed.

AFFIRMED

FOOTNOTES

1.   See related appeal Agenor v. Suarez, 23-488, p. 1 (La. App. 5 Cir. 4/24/24), 386 So.3d 1216, 1217.

2.   As stated in DAVID R. FROHN, ESQ., LA. PRAC. CIV. TRIAL § 4:5. Contrasting purpose of statement and argument (2025):At the beginning of the trial the practitioner is to give a “statement,” and at the end of the trial the practitioner is to give an “argument.” The legislature and the courts have selected these two different words to represent two different concepts.The purpose of the statement is for the attorney to declare to the jurors a statement of the facts the attorney intends to introduce into evidence and to make a short declaration of the issues involved in the case. The purpose of an argument at the end of the case is for the attorney to express reasonable inferences which may be drawn from the facts introduced into evidence and to attempt to persuade the jurors to accept those inferences in applying the law as given by the judge to the facts of the case.A statement declares “facts.” An argument declares “inferences” which are drawn from facts and attempts to persuade the listener to reach those inferences.

3.   Louisiana Code of Civil Procedure art. 1442 provides:A party may in his notice name as the deponent a public or private corporation or a partnership or association or governmental agency and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he will testify. The persons so designated shall testify as to matters known or reasonably available to the organization.

4.   Louisiana Code of Civil Procedure art. 1450 provides:(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:(a) That the witness is unavailable;(b) That the witness resides at a distance greater than one hundred miles from the place of trial or hearing or is out of the state, unless it appears that the absence of the witness was procured by the party offering the deposition; or(c) Upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.(Emphasis added).

JOHNSON, J.

SCHLEGEL, J., CONCURS