JAMI GASPARD v. ALBERT GREEN SOUTHEASTERN FREIGHT LINES INC AND ACE AMERICAN INSURANCE COMPANY (2026)

Defendants, Albert Green, Southeastern Freight Lines, Inc. (Southeastern), and ACE American Insurance Company (ACE), appeal the trial court's judgment awarding Plaintiff, Jami Gaspard, a total of $21,312,444.53 in damages. For the reasons expressed below, we amend the judgment of the trial court and affirm as amended.

I.

ISSUES

On appeal, Defendants assert the following assignments of error:

(1) The trial court's finding that the August 15, 2024 stroke was causally related to the December 7, 2020 auto accident was incorrect and contrary to law.

(2) The $14,000,000 general damages award is excessive and far beyond any reasonable award under the evidence offered at trial.

(3) The award for lost wages is not supported by the evidence.

(4) The trial court's award for past medical expenses is grossly excessive and not supported by the evidence.

(5) The trial court's award for future medical expenses is grossly excessive and not supported by the evidence.

(6) The judgment against ACE exceeds its policy limits which is not allowed under the Direct Action Statute.

(7) The trial court's award for costs and expenses to Ms. Gaspard is error.

Additionally, Ms. Gaspard answered the appeal and asserts the following assignments of error:

(1) The trial court erred by not awarding future medical expenses for future aspiration/respiratory problems pursuant to the testimony and evidence presented by plaintiff's treating physicians and life care planner.

The trial court erred by awarding an insufficient amount (2) of future general damages in light of the plaintiff's paralysis, brain injury, permanent disability, and need for lifetime care.

II.

FACTS AND PROCEDURAL HISTORY

On December 7, 2020, Ms. Gaspard was stopped behind an eighteen-wheeler owned by Southeastern and driven by Mr. Green. Attempting to avoid a street obstruction, Mr. Green slowly reversed his truck and hit the front of Ms. Gaspard's vehicle. As a result, Ms. Gaspard, who had undergone two prior cervical surgeries, sustained injuries to her neck, lower back, shoulder, and wrists. On November 21, 2021, Ms. Gaspard sued Mr. Green and his employer, Southeastern, for her injuries and damages from the accident. She also filed a direct action against Southeastern's insurer, ACE, under former La.R.S. 22:1269. Defendants later stipulated to liability, course and scope of employment of Mr. Green, and insurance coverage.

Following the subject accident, Ms. Gaspard was diagnosed with a lumbar facet fracture and lumbar cyst as well as herniated discs at C3-4 and C6-7. In April 2021, Ms. Gaspard underwent a three-level cervical fusion at C3-6 encompassing the C3-4 level, and a lumbar laminectomy with resection of a cyst at L5-S1 in August 2022.

On August 15, 2024, Ms. Gaspard underwent a cervical revision surgery or corpectomy at C4. The surgery was performed by her treating neurosurgeon, Dr. Paul Birinyi at Opelousas General Hospital after previously inserted hardware began to collapse. During the revision surgery, Ms. Gaspard's left vertebral artery was injured, causing her to lose a significant amount of blood. As a result of the rapid blood loss, Ms. Gaspard suffered multiple strokes and new permanent disabilities. She is now wheelchair bound, requires twenty-four-hour care, and is residing at Rivere de Soleil Community Care Center.

On May 9, 2025, the trial court granted Defendants’ Motion in Limine to Limit Evidence of Damages, finding that the damage caused by the August 15, 2024 surgery was clearly distinct and separate from what was caused by the December 7, 2020 auto accident, and excluded all evidence of damage occurring after the surgery. This court reversed the trial court's judgment finding that the trial court improperly determined issues of fact and law in making its ruling which was not proper on a motion in limine. Gaspard v. Green, 25-252 (La.App. 3 Cir. 5/19/25) (unpublished opinion).

A bench trial took place on May 21–22, 2025, after which the trial court requested post-trial briefs. It issued written reasons for judgment on June 26, 2025. On July 15, 2025, the trial court signed a judgment awarding Ms. Gaspard the following damages:

a. Past Medical Expenses $1,575,263.56

b. Future Medical Expenses $5,156,648.04

c. Past Lost Wages $24,610.31

d. Future Lost Wages $535,922.62

e. Past & Future Loss of Enjoyment of Life $2,000,000.00

f. Past Physical Pain and Suffering $1,000,000.00

g. Future Physical Pain and Suffering $5,000,000.00

h. Past Mental Pain and Emotional Distress $1,000,000.00

i. Future Mental Pain and Emotional Distress $2,000,000.00

j. Physical Disability $3,000,000.00

k. Scarring $20,000.00

Total $21,312,444.53

Ms. Gaspard filed a motion to tax costs, and the matter came before the court on August 18, 2025. The trial court granted the motion and awarded Ms. Gaspard $162,144.75 in costs. After unsuccessful post-trial motions, Defendants filed this suspensive appeal asserting the trial court erred in determining that damages were caused by the subject accident and appealing the amount of damages. Ms. Gaspard answered the appeal asking this court to increase the trial court's award for the following:

a. Future Medical Expenses- $39,193,230.10

b. Future Physical Pain and Suffering - $20,000,000.00

c. Future Mental Pain and Emotional Distress- $20,000,000.00

d. Past & Future Loss of Enjoyment of Life- $40,000,000.00

III.

STANDARD OF REVIEW

“Causation is a factual finding subject to the manifest error standard of review.” Arceneaux v. CITGO Petroleum Corp., 18-370, p. 5 (La.App. 3 Cir. 1/9/19), 263 So.3d 1251, 1256, writ denied, 19-228 (La. 4/8/19), 267 So.3d 615. Under the manifest error standard, the issue “is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one[ ]” after reviewing the record in its entirety. Stobart v. State through Dep't of Transp. & Dev., 617 So.2d 880, 882 (La.1993). “When findings are based on determinations regarding the credibility of witnesses, the manifest error—clearly wrong standard demands great deference to the trier of fact's findings[.]” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Special damages, including future medical expenses, are also subject to manifest error review. Kaiser v. Hardin, 06-2092 (La. 4/11/07), 953 So.2d 802. Moreover, the finder of fact has vast discretion in awarding general damages. Pete v. Boland Marine and Mfg. Co., LLC, 23-170 (La. 10/20/23), 379 So.3d 636.

While factual findings are reviewed for manifest error, when legal errors “interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence.” Evans v. Lungrin, 97-541, pp. 6–7 (La. 2/6/98), 708 So.2d 731, 735. “The interpretation and application of the statutes are matters of law subject to a de novo standard of review.” State v. Lexington Nat. Ins. Corp., 13-1134, p. 2 (La.App. 3 Cir. 3/5/14), 134 So.3d 230, 232.

IV.

LAW AND DISCUSSION

CAUSATION

In their first assignment of error, Defendants assert that the trial court, relying on just one aspect of this court's prior writ decision, erred by applying the wrong law and burden of proof for medical causation. They contend that the legal basis for trial court's medical causation ruling was legislatively overruled with the adoption of pure comparative fault in 1996 and was later recognized by the Louisiana Supreme Court.

In the prior writ ruling, this court stated, in part:

Where medical procedures or health care providers may have created or worsened the harm caused by a tortfeasor, the tortfeasor is responsible, not only for the injuries directly resulting from his substandard conduct, but also for subsequent treatment by health care providers who sought to resolve the original harm. Boudreaux v. Parnell, 11-631 (La.App. 5 Cir. 4/10/12), 96 So.3d 1181, writ denied, 12-1057 (La. 6/22/12), 91 So.3d 977; Maxwel v. Soileau, 561 So.2d 1378, 1387 (La.App. 2 Cir.), writs denied, 567 So.2d 1123 (La.1990) and 567 So.2d 1124 (La.1990). This is true even where the subsequent treatment is rendered negligently. Id.

Gaspard, 25-252, p. 1.

Defendants allege that the idea that a tortfeasor may be held responsible for subsequent treatment by health care providers seeking to remedy the original harm comes from a 1985 decision by the Louisiana Supreme Court, Weber v. Charity Hospital of Louisiana at New Orleans, 475 So.2d 1047 (La.1985). They further allege that Weber was legislatively overruled in the 1996 tort reform which was recognized by the supreme court in Dumas v. State ex rel. Department of Culture, Recreation & Tourism, 02-563 (La. 10/15/02), 828 So.2d 530. Therefore, the trial court erred in relying on this court's language, and this error entitles them to de novo review.

Following the 1996 tort reform, La.Civ.Code art. 2323(A)(1) now states:

In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault attributable to all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person's insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable.

We find that Defendants misinterpreted the holding of Dumas. In Weber, the court was tasked with determining whether release of an initial tortfeasor discharged a hospital and a blood supplier that gave the victim unwholesome blood during treatment for injuries she sustained in the original accident from any obligation relating to the blood transfusion. To answer that question, the court had to determine whether the original tortfeasor was solidarily liable for the damages resulting from the transfusion since the release of one solidary obligor discharged other solidary obligors. The court concluded that the initial tortfeasor's liability for any damages arising out of the medical treatment was solidary with any liability found to exist on the part of the hospital and the blood supplier. In Dumas, a man suffered from a bicycle accident and subsequently died while being treated for those injuries in a hospital. Relying on the holding in Weber, the plaintiff in Dumas filed a motion to strike the State's answer introducing allegations of medical malpractice.

Defendants note that in Dumas, 828 So.2d at 538, the supreme court stated, “The policies upon which Weber ․ were based have simply been changed by the legislature.” This statement, however, does not conclude that any pre-1996 opinion holding that an original tortfeasor may be held liable for the victim's injuries caused by negligent medical treatment was overruled. Instead, the Dumas decision notes that:

In those cases, we did not find that the subsequently negligent health care provider did not cause some portion of plaintiff's injuries or that those providers were not liable; rather, the determination that, as a matter of policy, the initial tortfeasor was the legal cause of 100% of plaintiff's harm allowed plaintiff to seek the entirety of his damages caused by the subsequent tortfeasor from either the initial or the subsequent tortfeasor.

Id. After concluding that the policies Weber relied upon had been legislatively altered, the court concluded:

[T]he amendments effected a change in Louisiana's tort policies such that our pre–1996 opinions holding that an original tortfeasor may be held liable for the victim's injuries caused by negligent medical treatment do not serve to bar the initial tortfeasor from presenting evidence relating to the alleged malpractice of the treating health care providers.

Id. at 531. The court further noted that “[i]f the factfinder concludes that plaintiffs’ damages were caused by more than one person, then each joint tortfeasor is only liable for his degree of fault and cannot be held solidarily liable with another tortfeasor for damages attributable to that other tortfeasor's fault.” Id. at 539.

The court opined that a defendant may allege comparative fault on the part of a treating physician, but such medical negligence must be proven. This court reached the same conclusion in its prior writ ruling, stating in part:

The finder of fact at trial may ultimately determine there is no causal connection between the subject auto accident and all of Plaintiff's injuries. Likewise, the finder of fact may make findings comparing the fault of all the actors involved. However, for the trial court to find that Plaintiff's injuries which arose during a surgery, which was allegedly required to correct injuries sustained in the underlying motor vehicle accident, were not “a foreseeable result” of that accident, required findings from the trial court on causation, intervening or superseding cause, and comparative fault issues that are not proper on a motion in limine.

Gaspard, 25-252, p. 2. Accordingly, we find that the trial court did not rely on an incorrect statement of law. Finding no legal error, we will review the trial court's finding of causation under the manifest error standard.

Defendants argue that Ms. Gaspard did not satisfy her burden of proving a causal relationship between the December 7, 2020 auto accident and the injuries and damages she suffered because of the strokes caused by Dr. Birinyi's August 15, 2024 surgery. In its written reasons for judgment, the trial court stated:

The Defendants asserted third party fault and that Dr. Birinyi's action during surgery was a superseding, intervening cause of a new injury that was not foreseeable. There was no evidence that Dr. Birinyi breached the standard of care. No one testified that Dr. Birinyi's treatment failed [sic] below the standard of care. Hence, this Court cannot ascribe any fault to Dr. Birinyi and must follow what the Court of Appeal, Third Circuit previously stated (May 19, 2025, Emergency Writ). Where medical procedures or health care providers may have created or worsened the harm caused by a tortfeasor, the tortfeasor is responsible, not only for the injuries directly resulting from his substandard conduct, but also for subsequent treatment by health care providers who sought to resolve the original harm. Boudreaux v. Parnell, 11-631 (La.App 5 Cir. 4/10/12)[,] 96 So.3d 1181, writ denied, 12-1057 (La. 6/22/12)[,] 91 So.3d 977; Maxwell v. Soileau, 561 So.2d 1387 (La.App. 2 Cir.), writs denied, 567 So.2d 1123 (La. 1990)[,] and 567 So.2d 1124 (La. 1990). This is true even where the subsequent treatment is rendered negligently. Id.

“In a personal injury suit, plaintiff bears the burden of proving a causal relationship between the injuries sustained and the accident which caused the injuries.” Maranto v. Goodyear Tire & Rubber Co., 94-2603, p.3 (La. 2/20/95), 650 So.2d 757, 759. “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.” Id. Thus, Ms. Gaspard bore the burden of proving that her injuries following the August 2024 surgery were caused by the December 2020 accident.

At trial, Ms. Gaspard presented evidence through testimony and medical records showing that although she had a history of cervical issues prior to the accident, she was not experiencing any complaints of lower back or neck pain or receiving pain medication at the time of the accident. Immediately following the accident, Ms. Gaspard complained of lower back pain. She presented at Premier Urgent Care later that day with complaints of neck pain, neck stiffness, and back pain. Thereafter, Ms. Gaspard underwent cervical and lumbar MRIs on December 22, 2020. Her treating orthopedist, Dr. Paul Fenn, testified that the MRI revealed a disk herniation at C3-4 and C6-7. He opined that these herniations were more probably than not related to the December 7, 2020 accident. Ms. Gaspard's treating neurosurgeon, Dr. William Brennan, also opined that the herniations were caused by the accident and recommended a cervical fusion. He noted that the lumbar MRI revealed an L5 fracture, which he opined was more likely than not caused by the accident. Dr. Joe Rankin, the radiologist, testified that the accident caused the lumbar fracture at L5 as well as the cyst that formed at L5-S1. Ms. Gaspard's pain management doctor, Dr. Sean Stehr, testified regarding the treatment he rendered to Ms. Gaspard from August of 2023 until October 2024, and he opined that the accident more likely than not caused her cervical herniations as well as her lumbar complaints. He further testified that Ms. Gaspard will require skilled medical care for the remainder of her life and that her present condition is more likely than not related to the December 2020 accident.

Dr. Birinyi, the neurosurgeon who performed the August 2024 surgery, also attributed Ms. Gaspard's injuries to the subject accident. He testified that he began treating Ms. Gaspard in March 2021. He testified that after reviewing Ms. Gaspard's MRI, it is more probable than not that the subject accident caused the cervical herniations and necessitated the April 2021 cervical fusion. He also testified that he ordered a May 2022 lumbar MRI of Ms. Gaspard due to her continued lumbar complaints. That MRI revealed that a cyst had formed at L5 due to the fracture sustained by Ms. Gaspard as a result of the accident. Dr. Birinyi performed a lumbar laminectomy in August 2022 to remove the cyst, which he also related to the subject accident. Dr. Birinyi further testified that Ms. Gaspard followed up with him with cervical complaints of radiculopathy, and at his recommendation, she underwent medical branch blocks and radiofrequency ablations at C3-6 to no avail. An MRI ordered by Dr. Stehr revealed that hardware placed during the April 2021 surgery had collapsed into Ms. Gaspard's vertebra and Dr. Birinyi ordered a cervical corpectomy surgery to revise the hardware.

As to the August 2024 corpectomy, Dr. Birinyi testified that after removing the bone at the surgery site the venous or arterial structures around the area began to bleed. He was able to stop the bleeding with a piece of cotton. Prior to closing the anterior portion of the surgery, Ms. Gaspard began bleeding from her left vertebral artery. Dr. Birinyi testified that due to the substantial blood loss Ms. Gaspard was without a pulse for several minutes and suffered strokes. He was able to resuscitate Ms. Gaspard and stop the bleeding using a surgical substance. She was stabilized and transferred to West Jefferson Hospital, where she was treated by vascular specialist Dr. Merritt Brown. Dr. Birinyi stated that the surgical material was a lifesaving procedure, and Ms. Gaspard would have died if he had not responded to the bleeding as he did. He opined that because the initial cervical fusion was related to the December 2020 accident, the August 2024 corpectomy as well as the complications, injuries, treatment, and permanent disabilities resulting from them are related to the subject accident.

Given the testimony of Ms. Gaspard's treating physicians, it was not manifestly erroneous for the trial court to find that Ms. Gaspard proved causation as to her damages following the August 2024 surgery. Their testimony established that the August 2024 corpectomy, the vertebral artery injury, and the catastrophic complications that followed were part of the continuum of treatment necessitated by the December 2020 accident.

Defendants’ expert neurosurgeon, Dr. Harry Weiser, testified that the complications encountered during the August 2024 surgery were not related to the auto accident but were the direct result of the actions of Dr. Birinyi. He opined that Ms. Gaspard's cervical herniations and the lumbar cyst were the preexisting result of chronic degenerative and arthritic changes and not associated with the December 2020 accident. He further opined that there was an exacerbation of Ms. Gaspard's preexisting injuries, but they did not warrant surgical intervention. Therefore, none of Ms. Gaspard's surgeries following the December 2020 accident were related to it. Dr. Weiser's testimony is directly contradicted by the testimony of Ms. Gaspard's treating physicians and their interpretation of the medical records. When there is a conflict in the testimony, the trial court's reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Moreover, it is a general rule that a treating physician's opinion should be given greater weight than that of a consulting physician. Hodges v. Golden Nugget Lake Charles, LLC, 17-936 (La.App. 3 Cir. 3/7/18), 242 So.3d 654. Accordingly, we find that the trial court was not manifestly erroneous in accepting the testimony of Ms. Gaspard's treating physicians over that of Defendants’ expert in determining that she proved more probably than not that all of her damages resulted from the December 2020 accident.

Defendants argue Ms. Gaspard's complications from the August 2024 surgery performed by Dr. Birinyi were a superseding cause of the damages and not foreseeable. Therefore, Defendants should not be liable for damages arising out of the August 2024 surgery. “A tort-feasor is liable only for damages caused by his negligent act. He is not liable for damages caused by separate, independent or intervening causes.” McNeely v. Ford Motor Co., Inc., 98-2139, p. 12 (La.App. 1 Cir. 12/28/99), 763 So.2d 659, 667, writ denied, 00-780 (La. 4/28/00), 760 So.2d 1182. The Louisiana Supreme Court has explained:

In situations in which there is an intervening force that comes into play to produce the plaintiff's injury (or more than one cause of an accident), it has generally been held that the initial tortfeasor will not be relieved of the consequences of his or her negligence unless the intervening cause superceded [sic] the original negligence and alone produced the injury. If the original tortfeasor could or should have reasonably foreseen that the accident might occur, he or she will be liable notwithstanding the intervening cause. In sum, foreseeable intervening forces are within the scope of the original risk, and hence of the original tortfeasor's negligence.

Adams v. Rhodia, Inc., 07-2110, p. 14 (La. 5/21/08), 983 So.2d 798, 808 (citations omitted).

In brief, Defendants argue that Dr. Birinyi made multiple mistakes during the August 2024 surgery and these mistakes caused the laceration to Ms. Gaspard's vertebral artery and the infiltration of hemostatic clotting agents into her artery, which in turn occluded the blood flow to the artery and caused her to suffer multiple strokes that resulted in new permanent disabilities. While Dr. Weiser testified about the complications that occurred during the August 2024 surgery, he never characterized any of Dr. Birinyi's actions as mistakes. In fact, Defendants submitted no evidence that Dr. Birinyi breached the standard of care or was in any way at fault. While Dr. Weiser testified that the presence of clotting agents in the artery causing an occlusion was very rare and he had never seen it, this is not enough to prove that the complications from the surgery were not foreseeable. Dr. Birinyi testified that on April 11, 2024, he reviewed the known complications of the corpectomy surgery. This is reflected in his pre-operative progress notes which state:

The patient understands the risks of surgery to include pain, bleeding, infection, need for more procedures, inability to relieve symptoms, neurologic injury, spinal fluid leak, anesthetic complications, stroke, coma, death, vascular injury, trachea and esophagus injury, voice changes, and swallowing difficulties. She understands that her risks of some of these will increase given her 3 previous surgeries. She would like to proceed.

These risks are also included in the surgical records from Opelousas General Hospital. Additionally, Dr. Brown, who treated Ms. Gaspard following the surgery, testified that his treatment related back to the vertebral artery injury, which is a known risk of the procedure Ms. Gaspard underwent. Accordingly, the trial court was not manifestly erroneous in finding that the actions of Dr. Birinyi during the August 2024 surgery were not a superseding and intervening cause of Ms. Gaspard's injury. Consequently, this assignment of error lacks merit.

GENERAL DAMAGES

In their second assignment of error, Defendants assert that the trial court erred because the general damages awarded are far in excess of what is reasonable under the circumstances. They allege that the evidence at trial proved that the damage attributable to the auto accident was only a soft tissue aggravation of Ms. Gaspard's chronic, pre-existing degenerative disc disease that was resolved without the need for surgery within three to six months of the accident. Thus, they request that the general damage award be lowered to a reasonable amount for a brief exacerbation of preexisting cervical degenerative disc diseases, which they suggest would be between $50,000.00–$125,000.00.

As we have determined that the trial court did not err in finding that all of Ms. Gaspard's injuries were caused by the December 2020 accident, we reject Defendant's contention that Ms. Gaspard's general damages be limited to those for a soft tissue aggravation of degenerative disc disease.

Defendants also suggest that if the trial court's causation finding is upheld, the general damage award of $14,000,000.00 is still abusively high. Defendants cite several cases which affirmed a general damage award of $3,000,000.00– $6,000,000.00. They argue that a general damage award in this range is more appropriate in the instant case. In contrast, Ms. Gaspard argues on appeal that the trial court abused its discretion by awarding minimal future damages for physical pain and suffering, mental pain and emotional distress, and loss of enjoyment of life. As such, she requests that this court increase these awards.

In Pete, 379 So.3d at 644, the supreme court held that “to determine whether a trier of fact abused its discretion in its award for general damages, an appellate court is to consider the particular facts and circumstances of a case, in conjunction with a review of prior awards[ ]” and that this review “applies to claims of excessiveness as well as insufficiency in an award.” The court went on to explain how the analysis is to be performed:

We do not abandon the two-step analysis for the appellate review of a general damage award but modify the analysis as follows. The question of whether the trier of fact abused its discretion in assessing the amount of damages remains the initial inquiry. However, to evaluate this issue, an appellate court is to include a consideration of prior awards in similar cases, as well as the particular facts and circumstances of the case under review. If an abuse of discretion is found, the court is to then also consider those prior awards to determine “the highest or lowest point which is reasonably within that discretion.” Jones [v. Mkt. Basket Stores, Inc.], 22-00841, p. 16, [(La. 3/17/23)], 359 So. 3d 452, 464.

Id. Thus, we look to awards in factually similar cases in our review for abuse of discretion.

In this case, Ms. Gaspard is a fifty-two-year-old woman residing in the Rivere de Soleil nursing home. She has undergone four separate surgeries and spent weeks in ICU care. During the August 2024 surgery, her left vertebral artery was injured which, led her to suffer multiple strokes and cardiac arrest. She was left with permanent brain damage, left-sided paralysis, right-sided insensitivity to heat and cold, incontinence, depression, and swallowing difficulties. She testified that before the December 2020 accident “[e]verything was good.” She did not need assistance for daily activities. She was able to mow her lawn, do chores, and tend to her family. She enjoyed gardening, fishing, and boat riding. She also enjoyed playing outside with her grandchildren, swimming, and swinging. Now due to her permanent disabilities, Ms. Gaspard is unable to do any of these things. She is confined to a wheelchair and in need of twenty-four-hour care. She has is unable to perform many activities of daily living and cannot use the restroom on her own. She testified that her inability to live independently is embarrassing, and at times she feels like she can't live. She also testified that she still experiences pain in her back, arms and knees.

Ms. Gaspard alleges that her case is analogous to Marable v. Empire Truck Sales of Louisiana, LLC, 16-876 (La.App. 4 Cir. 6/23/17), 221 So.3d 880, writ denied, 17-1469 (La. 11/13/17), 230 So.3d 210. In Marable, the plaintiff, a sixty-four-year-old woman, sustained an anoxic brain injury leaving her in a permanent, minimally conscious state. She had a tracheotomy and required twenty-four-hour care for the rest of her life. The jury awarded the plaintiff $40,000,000.00 in general damages and was upheld by the appellate court. Although not identical, we find the facts of Marable to be quite similar to the facts of this case. Like the plaintiff in Marable, Ms. Gaspard has suffered a brain injury that will require twenty-four-hour care for the remainder of her life. While the Marable plaintiff will endure this suffering for a duration of twenty years, Ms. Gaspard is expected to endure her condition for over thirty years. Also like the plaintiff in Marable, Ms. Gaspard has permanently lost the enjoyments of her life as stated above. Unlike the plaintiff in Marable, Ms. Gaspard is not in a minimally conscious state. As such, she is fully aware of her current condition as opposed to the plaintiff in Marable.

However, there are aspects in which Ms. Gaspard's injuries are not as severe as the plaintiff in Marable. The plaintiff in Marable requires a breathing and feeding tube. While Ms. Gaspard suffers from swallowing issues and is at risk of aspiration, she can eat without the use of a feeding tube. While Ms. Gaspard suffered multiple strokes, the plaintiff in Marable suffers from ongoing seizures and has been interdicted. The Marable plaintiff also suffered more physical injuries such as a crushed pelvis and collapsed lungs.

Ms. Gaspard also suggests her case is analogous to Tramble v. Briscoe, 25-423 (La.App. 3 Cir. 7/2/26), ___So.3d___. In Tramble, the plaintiff was a forty-three-year-old woman who was involved in a motor vehicle accident as an EMT and sustained a traumatic brain injury followed by continuing deterioration. She will require twenty-four-hour care for the rest of her life which is expected to be over forty years. The trial court awarded the plaintiff $155,500,000.00 in general damages. This court found that amount excessive and reduced it to $40,000,000.00 in line with Marable. In comparing the cases, this court noted:

As stated above, the Plaintiff in Marable was a sixty-four-year-old with an anoxic brain injury leaving her in a permanent, minimally conscious state requiring twenty-four-hour care for the rest of her life with a remaining life expectancy of twenty-one-years. Here, Sherri is a forty-three-year-old with a traumatic brain injury. She is in a conscious state. She is predicted to continue to deteriorate both physically and mentally. Sherri currently has minimal ability to communicate, and it is likely to worsen eventually to render her with no ability to communicate. She also requires twenty-four-hour care for the rest of her life, with a remaining life expectancy of forty-four years.

In Marable, the Plaintiff was enjoying recent retirement by traveling, attending family gatherings, and involving herself in the lives of her grandchildren. The court noted that she will never be able to enjoy these things again because of her permanent, minimally conscious state.

Here, according to Krystle Johnson, a fellow EMT and coworker, Sherri was “very youthful” and “happy to be on the job.” Johnson stated that Sherri “really enjoyed her position that she had. Every patient that she saw, she made sure that she left, like an impression with. She was very, very kind.” These sentiments were echoed by Margo Bellard, another fellow EMT and coworker, who characterized Sherri as “always upbeat ․ She loved being a paramedic. She came to work happy. For the most part ․ she was always happy.” Bellard told how every shift Sherri would write motivational or uplifting sayings inside of the ambulance. Steven Quebedeaux, Sherri's supervisor, also noted how Sherri “loved her job” and “inspired everyone she worked with.”

Jacob Tramble testified that Sherri helped raise his youngest son. He detailed how before the accident, he and Sherri enjoyed traveling, visiting his children in Texas, their parents in Monroe, or traveling to New Orleans and on other vacations.

Unlike the Plaintiff in Marable, we note that Sherri has been able to enjoy some of these activities since the accident. However, that ability to enjoy those activities has since ceased. According to the prevailing medical testimony Sherri is in a deteriorating state both physically and mentally. Thus, like the Plaintiff in Marable, Sherri has permanently lost all the similar enjoyments of her life cited above.

Like the Plaintiff in Marable, Sherri will require twenty-four-hour care for the remainder of her life. Sherri will endure this suffering and require this care for what is expected to be over forty years, from forty-three years of age to seventy-seven years of age. The Plaintiff in Marable was sixty-four years old at the time of the accident with a life expectancy of eighty-five, a duration of over twenty years roughly half that of Sherri.

Additionally, the Plaintiff in Marable was in a permanent, minimally conscious state. Here, Sherri's suffering is for a greater duration and will come with greater severity, as Sherri will be aware of her deterioration, with an ever-worsening inability to communicate, in a fully conscious state, versus the permanent, minimally conscious state of the Plaintiff in Marable. Further, Sherri is developing a progressive worsening of her gait due to right-sided dysfunction versus being in a near vegetative state as the Plaintiff was in Marable and is developing Parkinson's-like behavior and dementia.

Id. at ___(alterations in original).

Like the plaintiff in Tramble, Ms. Gaspard suffered a brain injury, is in a conscious state, and is expected to endure her suffering for several decades. She will require twenty-four-hour care for the rest of her life. She will never be able to resume her former active lifestyle. Unlike the plaintiff in Tramble, however, Ms. Gaspard's condition is not deteriorating. In fact, her doctors noted some progress although her prospects of further progress are minimal.

After reviewing the facts of this case in light of the above cited cases, we do not find that Ms. Gaspard's $14,000,000.00 general damage award is so high and excessive that it shocks the conscience of this court. While the particular circumstances are not as severe as the plaintiffs in the above cases, the similarities between the above cases and the facts of Ms. Gaspard's case suggest that $14,000,000.00, half of the amount awarded in Tramble and Marable, is not abusively high.

Ms. Gaspard argues that the $14,000,000.00 general damages award is abusively low. In support of her claim, she posits that her case is comparable to Barber Brothers Contracting Co., LLC v. Capital City Produce Co., LLC, 23-788 (La. 12/19/24), 397 So.3d 404 (hereinafter referred to as Barber II). That case involved a plaintiff who sustained physical injuries and a traumatic brain injury which required hospitalizations and multiple surgeries. The plaintiff's injuries affected his personality, lifestyle, identity, and self-image. He was prevented from engaging in activities with his children, which led to depression. He also suffered facial scarring and permanent hair loss and was self-conscious. Ms. Gaspard is like the plaintiff in Barber II, as both suffered cervical injuries and a brain injury. Both have also lost the ability to engage in those prior activities that had previously brought meaning to their lives. Both also continue to experience pain. Unlike Ms. Gaspard, the Barber II plaintiff can still care for himself in many respects although he is unable to engage in the more active parts of his lifestyle. He can stand and walk unassisted, shower, dress, and use the restroom by himself.

In Barber II the supreme court considered other cases with similar injuries where awards ranged between $2,500,000.00–$6,000,000.00:

In Brewer v. J.B. Hunt Transport, Inc., 2009-1408 (La. 3/16/10), 35 So. 3d 230, the plaintiff sustained significant injuries after he rear-ended an 18–wheel tractor-trailer that slowed down suddenly and changed lanes unexpectedly. He suffered a traumatic injury to his right anterior temporal lobe which resulted in bed-wetting, seizures, short-term memory deficits, a lowered I.Q., changed personality and disinhibition – problems which required long-term treatment at a brain-injury facility. In addition, he sustained more than fifty facial fractures, fractures to his right femur, left elbow, and finger. He had a torn spleen, necessitating removal, and two tears in his colon. He was hospitalized for thirty days in a comatose state, assisted by an artificial ventilator, and feeding tube. Brewer suffers from uncontrolled facial twitching and can no longer straighten his right arm. This Court affirmed the jury's award of $2,500,000.00. Id., 2009-1408, p. 2, 35 So. 3d at 233.

We also consider Jenkins v. State ex rel. Dep't of Transp. & Dev., 06-1804 (La. App. 1 Cir. 8/19/08), 993 So. 2d 749, where the appellate court affirmed a jury award of $3,000,000.00 to a plaintiff who was rendered unconscious in an accident, underwent brain surgery for a subdural hematoma, and suffered rib fractures, spinal cord bruising, bulging and herniated discs of the lumbar and cervical spine, permanent hearing loss in one ear, vision problems (blurred vision, cranial nerve trauma), daily headaches, neck and back pain.

In Sabillon v. Max Specialty Ins. Co., 13-0513 (La. App. 4 Cir. 3/12/14), 137 So. 3d 707, the plaintiff was injured when, while delivering cargo to a warehouse, a load fell from a forklift and struck a piece of lumber which went airborne and struck the plaintiff in the head. He sustained a head injury (including loss of consciousness), a nasal fracture, post traumatic headaches, cervical, thoracic and lumbar spine injuries, facial laceration, carpal tunnel syndrome, and left shoulder injuries. MRIs reflected bulging discs in the cervical spine, with a tear, bulging discs and a disc herniation in the lumbar spine, for which surgery was recommended. One physician testified that his traumatic brain injury was permanent and that he had brain atrophy and memory loss. The jury's award of $3,833,333.00 in general damages was affirmed on appeal.

We also consider Wingfield v. State ex rel. Dept. of Trans. and Development, 01-2668, 01-2669 (La. App. 1 Cir. 11/8/02), 835 So. 2d 785, where the plaintiff, a commercial truck driver, sustained a brain injury that left in him a permanent minimally responsive state when his rig rolled over the railing of a sharply curving I-10 ramp and landed on the highway below. In addition to his brain injury, the plaintiff suffered fractured ribs, numerous abrasions, trauma to the right forearm, a partially detached ear, collapsed lungs, liver laceration, and a fracture of the femur. The jury's award of $5,000,000.00 was reduced by the court of appeal to $3,000,000.00.

In Odom v. City of Lake Charles, 00-1950 (La. App. 3 Cir. 1/31/01), 790 So. 2d 51, the court of appeal affirmed a trial judge's general damage award of $4,000,000.00 to the plaintiff, a 29-year-old man whose truck struck an overpass bridge rail on I-10 in Lake Charles and vaulted over the railing onto the street below. He suffered a severe traumatic brain injury rendering him a quadriplegic. He is either bed or wheelchair bound, wears diapers during the day, has a condom catheter at night, and requires 24-hour supervision. He was in the hospital for two months and then transferred to a neurological rehabilitation facility in Houston, where he was treated for five months. He requires a feeding tube because he lost the ability to swallow and to eat. A permanent shunt in his brain drains the buildup of cerebral fluid into his abdomen.

We also look to Duncan v. Kansas City S. Ry. Co., 2000-0066 (La. 10/30/00), 773 So.2d 670, which involved an 11-year-old plaintiff who was thrown from a van and sustained a traumatic brain injury and severed spinal cord injury, which rendered her a quadriplegic and totally dependent on others for all her needs. She suffered other medical complications, including a tracheostomy, a non-functioning left lung, difficulties with digestion and elimination associated with her paralysis, muscle spasms, contractions of her upper and lower extremities, anorexia, and depression. Despite the plaintiff's young age and the severity of her physical and emotional injuries, this Court reduced the jury's $8,000,000.00 general damage award to $6,000,000.00.

In Simpson v. State Through Dep't of Transp. & Dev., 636 So.2d 608 (La. App. 1 Cir. 1993), as corrected on reh'g (Mar. 21, 1994), the 15-year-old plaintiff received substantial injuries when the pickup truck in which he was riding went out of control and hit the railing of a trestle bridge. Plaintiff suffered traumatic amputation of both of his legs, a severe head injury and concussion, and emotional and psychological problems as a consequence of the profound injuries which he sustained. The court of appeal found no abuse of discretion in the trial judge's general damage award of $6,000,000.00.

Id. at 414–15. The court then considered Marable and noted that while an outlier, the $40,000,000.00 damage award was not reduced.

After considering these cases, the supreme court held that while the $10,750,000.00 award was at the high end of the range of possible awards, it was not greatly disproportionate to the mass of prior awards. The cases examined in Barber II reveal that Ms. Gaspard's $14,000,000.00 award is far above the lowest amount that could reasonably be awarded, in fact it is $3,250,000.00 more than the award that was noted as being at the high end.

Considering the particular facts of this case in comparison with the above cited cases, we do not find the general damage award of $14,000,000.00 was abusively low. Accordingly, we do not find that the trial court abused its discretion, and we do not disturb the trial court's award for general damages.

SPECIAL DAMAGES

In their next three assignments of error, Defendants allege that the special damages were far in excess of what the evidence supported. “Special damages are those which have a ‘ready market value,’ such that the amount of damages theoretically may be determined with relative certainty, including medical expenses and lost wages.” Guillory v. Lee, 09-75, p. 16 (La. 6/26/09), 16 So.3d 1104, 1117.

In their third assignment of error, Defendants assert the wage loss awards were not supported by the evidence and are excessive. Defendants first argue that every witness admitted the lost wage claim did not exist prior to the August 2024 surgery and was, thus, not related to the December 2020 accident. As we have already determined that the trial court did not err on causation, this argument lacks merit.

Defendants also assert that Ms. Gaspard failed to meet her burden because no evidence was offered to prove her baseline wages or earning capacity. This is incorrect. The report of Ms. Gaspard's expert economist, Dr. Denis Boudreaux, stated that:

Jami Gaspard's July 15, 2024, Pay Stub for Southstar Urgent Care is used to determine her Earning Capacity. She was paid $15.75 per hour and worked full-time with overtime. Her Pay Stub reveals she earned $21,284.09 through July 15, 2024. If her earnings were annualized, she would have been expected to earn $39,663.34 in 2024.

Although initially Dr. Boudreaux's report was objected to by Defendants, they ultimately withdrew all their objections to Ms. Gaspard's evidence, and the report was admitted as Plaintiff's Exhibit 34.1. Dr. Boudreaux testified that Ms. Gaspard sustained a past wage loss from August 2024 to the date of trial totaling $24,610.31 and future lost wages totaling between $511,312.31 and $639,461.80 depending on which assumed age she would have left the workforce.

A future lost wage award is based on the difference between the injured person's earning capacity before and after the accident, and due to its speculative nature, the trier of fact should consider factors such as the person's age, life expectancy, work life expectancy, rehabilitation prospects, loss of earning ability, and inflation in determining the amount. Baack v. McIntosh, 19-657 (La.App. 3 Cir. 7/29/20), 304 So.3d 881, aff'd, 20-1054 (La. 6/30/21), 333 So.3d 1206. All witnesses agreed that Ms. Gaspard is no longer able to work following the August 2024 surgery. Dr. Boudreaux considered Ms. Gaspard's age, education, life expectancy, and prior work and wage history in determining his estimations. At trial, he explained his methodology and findings in detail. Accordingly, this assignment of error lacks merit, and the trial court was not manifestly erroneous in its awards for lost wages.

In their fourth assignment of error, Defendants assert that the $1,575,263.56 award for past medical expenses is grossly excessive. They argue that the award represents everything Ms. Gaspard incurred between the December 2020 accident and trial and does not account for the evidence showing that Ms. Gaspard's injuries from the auto accident can only be linked to $15,794.00 in past medical expenses. Once again, as we have already determined that the trial court did not manifestly err on causation, this argument lacks merit

In their fifth assignment of error, Defendants assert that the trial court's award of future medical expenses was grossly excessive. They first contend that all of the future medical care awarded by the trial court is solely related to the strokes and permanent disabilities Ms. Gaspard suffered after the August 2024 surgery, and therefore, are not a necessary and inevitable result of the injuries caused by the December 2020 accident. As we have already held that the trial court was not manifestly erroneous in finding causation for all of Ms. Gaspard's post August 2024 injuries, this argument lacks merit. As to the excessiveness of the award, all of the future damages awarded are supported by line items in the life care plan. We find that the trial court was not manifestly erroneous in awarding Ms. Gaspard $5,156,648.04 in future medical expenses.

On appeal, Ms. Gaspard asserts that the trial court's award of future medical expenses must be increased. Specifically, she contends that the trial court utilized the improper “medical certainty” burden of proof in its analysis for future medical expenses and that she proved by preponderance of the evidence the need for future medical care for aspiration/respiratory problems as listed in the life care plan.

The trail court refused to award future medical expenses for the line item “Inpatient Hospitalization/ICU Care (aspiration pneumonia).” In a footnote in its written reasons for judgment, the trial court stated:

Ms. Gaspard had not received specific referrals for in-patient neurorehabilitation treatment at the Shepherd Center, nor did the testimony establish that such treatment was more probable than not medically beneficial or necessary. Hence, the transportation to the Shepherd Center is not necessary. Additionally, Ms. Gaspard suffered one episode of pneumonia in November 2024 and it was not proven that it was related to aspiration. It was not established with any medical certainty that she will be hospitalized in ICU with aspiration pneumonia 4 times per year. Therefore, the amounts, in the Life Care Plan for these 3 line items were deducted.

“The proper standard for determining whether a plaintiff is entitled to future medical expenses is proof by a preponderance of the evidence the future medical expense will be medically necessary.” Menard v. Lafayette Ins. Co., 09-1869, p. 13 (La. 3/16/10), 31 So.3d 996, 1006. Future medical expense awards generally turn on questions of credibility and inferences of experts and witnesses. Id.

In Armentor v. Safeway Insurance Co., 07-805, p. 3 (La.App. 3 Cir. 12/19/07), 972 So.2d 444, 446, the plaintiff asserted “that the trial court imposed an illegal burden of proof, requiring him to prove his case with ‘definite’ evidence, instead of the less strict ‘more probably than not’ standard that the law actually imposes on a plaintiff in a personal injury case.” This argument was based upon the following excerpt from the trial court's reasons for judgment:

Neither Dr. Montgomery nor Dr. Kasarla stated that the Plaintiff was definitely a surgical candidate. Both stated that it would depend on whether the injections continued to improve the Plaintiff's condition. Dr. Kasarla speculated that the Plaintiff may need injections for six months or maybe forever. The doctors simply cannot make a definitive determination at this point as to Plaintiff's prognosis and it is not this Court's job to speculate as to what the future may bring.

Id. The trial court also stated:

[I]t is this Court's opinion that Plaintiff has failed to establish that he will need surgery or injections to the extent he has claimed in the future. While the need for extended injections has not been satisfactorily proven to this Court, the need for some limited future medicals could be possible and the Court would assess $5,000.00 for future medicals.

Id. at 448 (alteration in original). This court confirmed that the proper standard was more probable than not. Despite the definitive language however, this court concluded, “Our reading of the above-quoted language convinces us that the trial court applied the correct standard when evaluating Armentor's need for future medicals. Thus, the propriety of the award will be examined under the manifest error standard.” Id.

In the present case, while the trial court denied the aspiration pneumonia line item due to a lack of medical certainty, the line item for treatment at the Shepherd Center was denied because it was not established, more probable than not, that it was necessary. Considering the Armentor case, it is arguable that the trial court did in fact use the correct standard of proof at trial. However, because the supreme court in Lasha v. Olin Corp., 625 So.2d 1002, 1006 (La.1993), reversed a decision that required the plaintiff to prove “ ‘reasonable medical certainty[,]’ ” we will review the future medical expense for aspiration pneumonia de novo using the correct burden of proof.

Ms. Gaspard seeks an additional $34,036,582.06 in future medical expenses based on the claim that she will experience in-patient hospitalization/ICU care for aspiration pneumonia four times a year with a stay of eleven days each time. The only evidence that Ms. Gaspard's pneumonia was related to aspiration came from Dr. Birinyi. In the notes for the life care plan, it states that Dr. Birinyi noted that Ms. Gaspard had suffered an episode of aspiration pneumonia. At trial, he was questioned about Ms. Gaspard's aspiration problems, and he opined “[s]he has had it, and is at risk for developing it again.” He then stated that more probable than not she will have this in the future. There is plentiful evidence that Ms. Gaspard does and will likely continue to suffer from aspiration and swallowing problems due to her neurological deficits as this fact was testified to by multiple doctors. Dr. Birinyi testified that because of her condition and the fact that she has had “significant respiratory issues three times since the surgery,” Ms. Gaspard will have aspiration pneumonia four times a year. Based on Dr. Birinyi's recommendation, this item was included in the life care plan.

On appeal, Defendants argue that Ms. Gaspard did not satisfy her burden of proving that this kind of care and treatment would be incurred at the frequency and duration used in the life care plan. We agree. Ms. Gaspard's medical records reveal that she has only experienced one episode of pneumonia which required her to be hospitalized. Although Dr. Birinyi stated that Ms. Gaspard suffered from aspiration pneumonia, none of the medical records from Rapides Regional Medical Center, where Ms. Gaspard was treated for pneumonia, suggest that her pneumonia was related to aspiration. The ambulance records note that the nursing home staff was unable to report whether she had aspirated, and the report for the Modified Esophagus/Pharynx Video test performed at the hospital notes “no aspiration was visualized.” Dr. Weiser testified that Ms. Gaspard was diagnosed with multifocal pneumonia, and it was thought that it was a result of a urosepsis. The diagnosis was not pneumonia from aspiration. There is also no record that Ms. Gaspard has been diagnosed with pneumonia since that first occurrence shortly after her August 2024 surgery.

Although Dr. Birinyi testified that he believed Ms. Gaspard would be hospitalized with aspiration pneumonia four times a year, he did not treat Ms. Gaspard for this issue, nor is he a pulmonologist who would treat cases of pneumonia. Dr. Plauche, the treating physician at the nursing home, testified that even though Ms. Gaspard had aspiration and swallowing issues, she was improving, and there were protocols and diet restrictions that could help with the risk. He also confirmed that there was no way to predict when or how often Ms. Gaspard might come down with pneumonia from an aspiration issue. Dr. Weiser also testified there is no way to predict how many times Ms. Gaspard would get pneumonia. Given the evidence, we find that Ms. Gaspard failed to meet her burden of proof that more likely than not this future medical expense will be medically necessary. Accordingly, we refuse to award an additional $34,036,582.06 in future medical expenses.

DIRECT ACTION

In their sixth assignment of error, Defendants assert that the judgment is contrary to law and evidence as it holds ACE liable for an amount far beyond its policy limits. They contend that the judgment should be modified and reduced to reflect that ACE is only liable within the terms and limits of its policy. Ms. Gaspard asserts that the parties stipulated that ACE provided liability insurance to Mr. Green and Southeastern, that Defendants consented to the language in the judgment, and that the entirety of the ACE policy was not submitted. Thus, they argue that the trial court did not err.

The Direct Action Statute, as it existed at the time the petition was filed, provided “a right of direct action against the insurer within the terms and limits of the policy[.]” La.R.S. 22:1269(B)(1)¹ . In Martinez v. American Transportation Group Risk Retention Group, Inc., 23-1716, p. 3 (La. 10/25/24), 395 So.3d 731, 733–34 (citations omitted), the supreme court explained:

An insurance policy is a contract that constitutes the law between the parties and must be enforced as written. Insurers have the same rights as individuals to limit their liability and place reasonable conditions they impose upon their contractual obligations, including establishing limits of liability. Pursuant to these principles, it is axiomatic that, in the absence of bad faith, an insurer cannot be liable for more than its policy limits.

“Generally, an insurer is solidarily liable with the insured. However, when a policy has specific language limiting the liability of the insurer, the insurer may only be found to be solidarily liable up to the policy limits.” Carrier v. Nobel Ins. Co., 01-983, p. 12 (La.App. 3 Cir. 2/6/02), 817 So.2d 126, 135, writs denied, 02-728, 02-739 (La. 5/10/02), 815 So.2d 843.

While the parties did stipulate as to coverage, the stipulation only provided that “Defendants further stipulate that ACE American Insurance Company provided liability insurance coverage to ALBERT GREEN AND SOUTHEASTERN FREIGHT LINES, INC., for the sued upon automobile accident.” The stipulation did not mention the limits of the ACE coverage, which is governed by the insurance contract. We do not read the stipulation to provide unlimited coverage. The ACE insurance policy is contained in the record, and it clearly provides coverage to Southeastern with a policy limit of $4,000,000.00.

The law is clear that ACE may not be held liable for amounts in excess of its policy limits. Thus, the judgment as written is clearly contrary to law. We amend the judgment to properly reflect that ACE is only solidarily liable up to its policy limit of $4,000,000.00.

COSTS

In their final assignment of error, Defendants assert the amount taxed as costs and expenses was improper under the law and evidence. Specifically, they argue that Ms. Gaspard is not entitled to recover costs for demonstrative aids used at trial; trial appearance fees for Shannon Lemoine, Dr. Stehr, Dr. Plauche, David Barczyk, Dr. Brennan, Dr. Birinyi, Stan McNabb, and Dr. Boudreaux because those amounts were not properly supported by testimony, affidavits, or other proof; post-trial deposition costs or witness fees for Dr. Fenn, Dr. Stehr, Dr. Plauche, Dr. Rankin, Dr. Biryani, Dr. Brennan, and Dr. Merrit; and deposition costs for the pre-trial depositions of Dr. Weiser and Joseph Cormie that were not used at trial.

Louisiana Code of Civil Procedure Article 1920 provides that “[u]nless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause. Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” Louisiana Revised Statutes 13:4533 states that “[t]he costs of the clerk, sheriff, witness’ fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs.” Trial courts have “great discretion in awarding costs (including expert witness fees, deposition costs, exhibit costs and related expenses).” Boutte v. Nissan Motor Corp., 94-1470, p. 12 (La.App. 3 Cir. 9/13/95), 663 So.2d 154, 162.

Concerning costs for demonstrative aids, the judgment awarding costs does not contain any line items awarding costs for demonstrative aids. Moreover, La.R.S. 13:4533 allows costs for “all other costs allowed by the court[.]” Courts have affirmed costs awards which included amounts for demonstrative aids. See Ackman v. Neuro Diagnostic Monitoring, LLC, 24-214 (La.App. 3 Cir. 5/8/25) (unpublished opinion). Accordingly, this argument lacks merit.

Ms. Gaspard submitted numerous records and invoices detailing costs and expert witness fees. These records were accepted and considered by the trial court which participated in the entirety of the trial. Additionally, “[a] district court can fix expert witness fees based upon its own observations and evidence presented at trial.” Roach v. State through Dep't of Transp. & Dev., 20-211, p. 82 (La.App. 3 Cir. 9/22/21), 329 So.3d 974, 1027, writ denied, 21-1527 (La. 1/12/22), 330 So.3d 621. After examining the record, we find that Ms. Gaspard submitted adequate proof of costs.

Defendants assert that Ms. Gaspard is not entitled to recover costs or fees for her treating physicians. Their brief cites their opposition to the motion to tax costs found in the record. In the opposition, they argued that witness fees of medical providers and doctors that previously treated a party are not taxable as costs under La.R.S. 13:3666 when the testimony simply consists of facts which they became aware of in their capacity as treating physicians. In support, they cite Rizzuto v. Employers Liability Assurance Corp., 152 So.2d 857 (La.App. 4 Cir. 1963). In the present case, Ms. Gaspard's treating physicians did more than simply testify to the facts they became aware of in their capacity as treating physicians. The general rule is “[e]xpert witnesses are entitled to reasonable compensation for their time in court and for preparatory work done.” Roach, 329 So.3d at 1027. Each of the treating physicians were admitted as experts in their respective fields and each testified, either live or through deposition, as to their findings and opinions regarding medical causation of Ms. Gaspard's injuries. As such, the trial court did not abuse its discretion in awarding expert fees for the treating physicians.

Defendants also object to the award for deposition costs of Dr. Weiser and Joseph Cormie because their depositions were not used at trial. Dr. Weiser's deposition testimony was actually used at trial as impeachment evidence. Concerning depositions not introduced at trial, this court has stated:

There is support in the jurisprudence for the award of costs for expert depositions not introduced at trial. For example, in Butler v. LAMMICO, 15-1191 (La.App. 4 Cir. 5/25/16), 195 So.3d 570, writ denied, 16-1206 (La. 10/10/16), 202 So.3d 169, the fourth circuit court held it is within a trial court's discretion to award costs required to prosecute a case can [sic], even if the costs were not in evidence. The court noted the trial court is in the best position to know whether the costs sought were necessary.

Ackman, 24-214, p. 11. Additionally, in Guillory v. Louisiana Farm Bureau Casualty Insurance Co., 22-634, p. 12 (La.App. 3 Cir. 10/4/23), 371 So.3d 1202, 1212 (alterations in original), writ denied, 23-1453 (La. 1/10/24), 376 So.3d 848 this court stated:

LFBC argues that several of those items are not taxable under La.Code Civ.P. art. 1920. Specifically, LFBC takes issue with certain costs it identifies as unnecessary, including amounts for exhibits and depositions that were not used at trial. LFBC also objects to the expenses associated with the mock jury and the jury consultant. LFBC argues that these items are not recoverable under La.Code Civ.P. art. 1920.

“Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable pursuant to La.C.C.P. art. 1920, which has been liberally interpreted as granting broad discretion to the trial court.” Carr & Assoc., Inc. v. Jones, 22-946, p. 8 (La. App. 1 Cir. 5/10/23), 368 So.3d 593. “[T]he only costs which can be taxed against a litigant are those specifically provided for by statute.” Id. “The costs of the clerk, sheriff, witness’ fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs.” La.R.S. 13:4533 (emphasis added). The jurisprudence recognizes that “the positive law in this instance allows for discretion on the part of the trial court to set costs other than those specifically enumerated, as equitable.” Barre-Williams v. Ware, 20-665, p. 6 (La.App. 4 Cir. 4/28/21), 365 So.3d 760, 769. There is support in the jurisprudence for the award of costs for depositions not introduced at trial. For example, in Butler v. LAMMICO, 15-1191, p. 10 (La.App. 4 Cir. 5/25/16), 195 So.3d 570, 577, the court stated that: “costs necessary to bring a case to trial, though not expressly introduced into evidence, are within the trial court's discretion to tax.” “[T]he trial court judge is in a better posture to determine what costs were necessary to bring the case to trial.” Id. We find that the same reasoning applies to the expenses incurred for the mock trial and jury consultant.

Following the above reasoning and based on the discretion of the trial court, we find the trial court did not err in its assessment of the deposition costs. We further find the trial court did not abuse its discretion in awarding $162,144.75 in total costs.

V.

CONCLUSION

For the foregoing reasons, we amend the judgment to limit ACE American Insurance Company's liability to its policy limits of $4,000,000.00. All other aspects of the judgment are affirmed. Costs of this appeal are assessed to Defendants Albert Green, Southeastern Freight Lines, Inc., and ACE American Insurance Company.

AFFIRMED AS AMENDED.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

P.O. Box 16577

Lake Charles, LA. 70616

(337) 433-9403

Brian M. Caubarreaux

Brian Caubarreaux & Assoc.

2204 MacArthur Drive

Alexandria, LA 71303

Emily Gremillion

Brian Caubarreaux & Associates

P. O. Box 129

Marksville, LA 71351

Lea Ann Smith

Attorney at Law

201 St. Charles Ave. Ste. 2700

New Orleans, LA 70170

Hon. Monique Freeman Rauls

9th JDC Judge

701 Murray Street, Ste. 501

Alexandria, LA 71301

Raymond C. Lewis

Deutsch, Kerrigan, L.L.P.

755 Magazine Street

New Orleans, LA 70130

NOTICE OF JUDGMENT AND CERTIFICATE OF MAILING

October 28, 2026

Docket Number: CA 26-110

JAMI GASPARD

VERSUS

ALBERT GREEN, ET AL.

NOTICE IS HEREBY GIVEN that the attached judgment and written opinion was rendered this date and a copy was mailed to the trial judge, all counsel of record and all parties not represented by counsel as listed above.

FOR THE COURT

Renée R. Simien Clerk of Court

FOOTNOTES

1.   The statute was amended by 2024 La. Acts No. 595, § 1, effective August 1, 2024, to only provide a direct action against the insurer in certain limited situations.

SHARON DARVILLE WILSON JUDGE