FRANK CUSHENBERRY AND ROBIN CUSHENBERRY INDIVIDUALLY AND ON BEHALF OF THE MINOR CHILDREN NOAH CUSHENBERRY AND KHLOE CUSHENBERRY v. JOHNNY SCOTT AND BARBER BROTHERS CONTRACTING COMPANY LLC (2025)

In Pete v. Boland Marine & Manufacturing Co., LLC, 2023-0170 (La. 10/20/23), 379 So. 3d 636, we recognized that “the particular injury to the particular plaintiff under the particular circumstances” must always be considered in a review of prior awards. Id., p. 9, 379 So.3d at 643 (quoting Youn v. Maritime Overseas Corp., 623 So. 2d 1257, 1261 (La. 1993)). In Barber II, this Court made clear that each case must be reviewed under these guideposts set forth in Pete. Barber Brothers Contracting Co., LLC v. Capitol City Produce Co., 23-788 (La. 12/19/24), --- So. 3d --- (“Barber II”). As we explained in Barber II, we granted rehearing because Barber I “did not assign appropriate weight to the effects of ‘the particular injury to the particular plaintiff under the particular circumstances.’ ” Id., 23-788, p.17, --- So. 3d ---.

To be clear, the injuries Mr. Cushenberry incurred as a result of this accident are permanently life-altering, painful, and continue to negatively impact his life. Specifically, Mr. Cushenberry suffered significant physical injuries which included severe facial damage and scarring, a traumatic brain injury, and shoulder and cervical spine injuries. He sustained debilitating craniofacial injuries, including a fractured eye socket and left cheek bone which left his face “unstable” immediately following the accident. He was hospitalized for thirty days in a comatose state, assisted by an artificial ventilator, and feeding tube. Mr. Cushenberry also required intubation due to the extraordinary facial swelling that impaired his ability to breathe. His face was ultimately completely reconstructed and he needed painful laser scar revision during his long and continuing recovery. He required inpatient rehabilitation to address his frontal lobe damage, which included impaired cognitive ability, difficult fine-motor coordination, decreased verbal I.Q., and deficits in language function and verbal comprehension. Significantly, Mr. Cushenberry's life was forever and irreversibly changed for the worse due to this accident, as described in detail in Barber II. 23-788, p. 6-13, --- So. 3d ---.

While we reconsidered Mr. Cushenberry's particular injuries under the particular circumstances in Barber II, we also reconsidered the major component of the trial—the jury. A jury in a civil case embodies values of “participatory democracy” and “plays a major role in achieving an important societal policy which the law is designed to foster: satisfaction of the community's sense of what is fair and just.” Frank L. Maraist, 1 La. Civ. L. Treatise, Civ. P. § 11:2 (2d ed.) (Nov. 2021). Obviously, the Legislature itself recognizes the critical importance of civil juries, insofar as it recently lowered the threshold for a trial by jury. See La. C.C.P. art. 1732(A) (“A trial by jury shall not be available in: (1) A suit where the amount of no individual petitioner's cause of action exceeds ten thousand dollars exclusive of interest and costs ․”). As a reviewing Court, we review a trial that is reduced to a printed account. We do not see or hear the litigants or witnesses, nor do we see or feel the demeanor or evidence that is so critical in a trial—hence the term “cold record.” We review a cold record. The jury does not. Their determinations are made after hearing the litigants, observing their demeanor, and assessing credibility, as well as examining physical evidence. That is why the discretion of the jury is “wide” or “much” and should be overturned only when the record establishes the jury abused this wide discretion. Carollo v. Wilson, 353 So. 2d 249, 252 (La. 1977) (a reviewing court has “a constitutional duty to review the law and facts and thereafter render a judgment on quantum based on the merits,” including “determining whether the jury has abused its ‘much discretion’ ․ in awarding general damages.”). See also La. Const. art. V, § 10 (B), (“[A]ppellate jurisdiction of a court of appeal extends to law and facts.”).

We have carried out our constitutional duty here with an eye toward the jury's important role, in accordance with the standards set forth in Pete, as articulated and clarified in Barber II. Accordingly, I agree with the decision to deny rehearing.

FOOTNOTES

FOOTNOTE.  

CRICHTON, J., additionally concurs and assigns reasons:* FN* Retired Justice Scott Crichton, appointed Justice ad hoc, sitting for Justice John M. Guidry for the purpose of hearing this captioned matter.