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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #020 FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 16th day of March, 2010, are as follows:

BY KNOLL, J.:

2009-C -1869

SHANNON MENARD ET AL. (Parish of Lafayette)

v.

LAFAYETTE

INSURANCE

COMPANY

ET

AL.

Kimball, C.J., participated in oral argument participate in the deliberation of this opinion.

but

did

not

For the foregoing reasons, the judgment of the Court of Appeal is reversed and the district court's judgment entered in conformity with jury's verdict is reinstated and rendered. REVERSED; DISTRICT COURT JUDGMENT REINSTATED AND RENDERED. WEIMER, J., concurs and assigns reasons.

3/16/2010 SUPREME COURT OF LOUISIANA NO. 09-C-1869 SHANNON MENARD ET AL. VERSUS LAFAYETTE INSURANCE COMPANY ET AL. ON WRIT OF CERTIORARI TO THE COURT OF APPEAL THIRD CIRCUIT, PARISH OF LAFAYETTE KNOLL, Justice* This writ concerns whether the Court of Appeal correctly applied the manifest error standard of review in increasing the jury's award for future medical expenses in this personal injury case. Plaintiff, Shannon Menard (Menard), filed the instant suit against defendants, Lafayette Insurance Company (Lafayette Ins.), Prejean Service Company, Inc. (Prejean), and Scott Benjamin Buxton (Buxton), for damages she sustained as a result of an automobile accident.1 The jury rendered judgment in plaintiff's favor awarding her $88,373.73 for future medical expenses. Finding manifest error in the jury's award for future medical expenses, the appellate court increased the award to $1,413,508.75. We granted certiorari to address the

correctness vel non of the appellate court's review of the jury's award for future medical expenses. Shannon Menard v. Lafayette Ins. Co., 09-1869 (La. 11/20/09), __ So.3d __. Finding the Court of Appeal erred in its application of the manifest error

Kimball, C.J., participated in oral argument but did not participate in the deliberation of this opinion. Ms. Menard also filed suit on behalf of her minor daughter, Baili Elizabeth Racca, to recover Baili's damages for loss of consortium with her mother as a result of the accident. The jury found Baili was entitled to consortium damages and awarded Baili $20,000 as necessary and adequate compensation. Baili's claim and her award were not at issue on appeal or in the defendants' application to this Court, and therefore, neither Baili's claim nor her award will be discussed herein.
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standard of review in amending the jury's award, we reverse the Court of Appeal's judgment and reinstate the jury's verdict. FACTS AND PROCEDURAL HISTORY On May 8, 2001, at approximately 5:40 p.m., Ms. Menard's 1993 Honda Accord was stopped at a red light on Louisiana Highway 3095 in Lafayette, Louisiana. At about this time, a 1995 Chevrolet Model 6000 two-door pick-up truck driven by Buxton, who was in the course and scope of his employment with Prejean, rear-ended a 1998 Volvo S70, which vehicle in turn rear-ended Ms. Menard's vehicle. Immediately following the accident, Ms. Menard was taken by ambulance to the emergency room at the Medical Center of Southwest Louisiana. Ms. Menard subsequently sought treatment from Dr. Michael R. Cavanaugh, Dr. Thomas J. Montgomery, Dr. James N. Domingue, Dr. James A. Pearce, and Dr. Scott A. Gammel for head, jaw, neck, back, shoulder, and knee complaints. Ms. Menard was thirtythree years of age at the time of the accident. Ms. Menard filed suit against Buxton, Prejean, and their insurer, Lafayette Ins., for damages she sustained as a result of the accident.2 In her petition, Ms. Menard alleged, in pertinent part: As a result of this accident, Plaintiff . . . was caused to sustain severe and painful personal injuries to bones, muscles, ligaments, tendons, nerves, blood vessels and other structure of her head, neck, back, right knee, arms and other parts of her body, including, but not limited to, cervical and lumbar strain and sprain; injuries to her face; injuries to the nervous system and psyche and other systems of the body, resulting in extreme anxiety, pain and suffering; and the aggravation and exacerbation of prior existing, non-disabling predispositions, including normal degenerative changes. ***

Ms. Menard's automobile insurer, State Farm Mutual Automobile Insurance Company (State Farm), filed a petition of intervention, asserting it had paid $5,000 in medical expenses on behalf of Ms. Menard as a result of the accident and seeking to recover that amount from defendants. The parties stipulated that State Farm was subrogated to Ms. Menard's rights against defendants for the $5,000 it paid on her behalf. 2

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She has incurred medical, hospital, and related expenses; and may require hospital, medical and related care, including surgery in the future. These conditions will continue and may worsen. Before trial, defendants stipulated to liability and insurance coverage. The matter proceeded to jury trial on June 23, 2008,3 solely on the issue of damages. Only the award for future medical expenses is strongly disputed before us. In her case-inchief, Ms. Menard presented the testimony of two of her treating physicians, Dr. Pearce and Dr. Gammel, as well as the testimony of an economist, Dr. Doug Womack. By joint stipulation of the parties, she also introduced her medical records. We have carefully examined all of her record medical evidence as detailed below, and find no internal inconsistencies as the Court of Appeal did. Rather, we find two opposing views were presented to the jury by plaintiff and defendants respectfully, and the jury deduced its award for future medicals on a reasonable basis. Testimony of Dr. James A. Pearce Dr. James A. Pearce, a dentist, who specializes in patients with temporomandibular joint disorders (TMJ) and orificial pain, testified via video disposition he began treating Ms. Menard on October 31, 2001, for TMJ and last saw her professionally on December 3, 2007, approximately seven months before the beginning of trial. He testified her TMJ condition was caused more probably than not by the accident sued upon, but bruxism or grinding of the teeth is a well-known cause of TMJ. His records noted excessive attrition or wearing of her teeth, which could have probably caused a bruxism condition years before the accident. He further testified she will more probably than not be required to wear a splint for the indefinite future, which splint will have to be replaced, retooled, or resurfaced every five to six

This matter originally came for jury trial on June 23, 2008, but after selecting and swearing a twelve-person jury panel, the district court continued the matter to July 22, 2008, because of an illness to defense counsel. On July 22, 2008, two new jury members were selected to replace two prior excused jurors released from hardship in having to serve on the rescheduled trial date. On the very next day, July 23, 2008, the evidentiary phase of trial began. 3

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years. He estimated the following costs of care: $750 for splints every 5 to 6 years, $100 for retooling, $75 to $100 for yearly doctor visits, and $75 for a Panorex "maybe" every 5 years. According to his testimony, plaintiff's treatment would require no muscle relaxers or physical therapy, and at the time of trial, she was at maximum medical improvement, stable, and asymptomatic. Testimony of Dr. Scott A. Gammel Dr. Scott Gammel, an anesthesiologist with a specialty in the treatment of chronic pain and board certified in anesthesiology and pain management, testified he had been treating Ms. Menard upon referral from her attorney since February 13, 2003, for cervical and lumbar spine injuries. He opined as a result of the accident Ms. Menard suffered spinal column injuries to multiple levels of the motion sections of her back and neck. During his treatment, Ms. Menard received eight epidural spinal injections, one radiofrequency neural ablation,4 and three cervical facet injections. Although he recited the potential side effects of steroid injections at the injection site, such as, pain, infection of soft tissue, and loss of skin color, he noted Ms. Menard has shown no signs of these symptoms. He testified Ms. Menard will need treatment for the rest of her life to control her pain, which treatment he estimated or anticipated will include at a minimum four doctor visits, two six-week sessions of physical therapy, four epidural spinal injections, and one radiofrequency neural ablation per year; an MRI more than every two years depending on symptomatology; and a lifetime of medications, including Lortab, Percocet, Lexapro, Lidoderm patches, and Voltaren gel. Although he believed future surgery was a possibility, Dr. Gammel could not say it was more probable than not.

Dr. Gammel described this procedure as a "high tech way" of basically "microwaving" the nerve by applying heat to the nerve through a radiofrequency probe. 4

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Regarding objective signs of Ms. Menard's cervical lumbar spine injuries, Dr. Gammel referenced Ms. Menard's x-rays taken in the hospital on May 8, 2001, immediately following the accident, the report of which indicated "mild reversal of the cervical curvature compatible with spasms." He also noted Ms. Menard's MRIs showed mild narrowing of the right C6-7 neural foramen5 (August 24, 2002), mild bulging at C4-5 (August 26, 2002) and then at C4-5 and C5-6 (June 15, 2004), and minimal convexity6 at L5, S1 (June 17, 2003), which later progressed into a small, midline protrusion at that same level (January 25, 2006). Dr. Gammel interpreted this change at the L5, S1 level as demonstrating "the disk was originally injured at the time of her accident and over time it progressed to the point where it became protruded." Dr. Gammel also testified the report of Ms. Menard's June 15, 2004 MRI, which indicated mild bulging at the C4-5 and C5-6 levels, actually said "the MRI of the C spine was essentially negative." Additionally, Dr. Gammel discussed the

fluoroscopic images taken by him after injection of contrast into Ms. Menard's facet joints that revealed facet joint capsular disruption at two levels. On cross-examination, Dr. Gammel admitted normal findings could be interpreted from a layman's standpoint as a negative finding, there was no evidence of nerve root impingement, disk bulges are not surprising in a woman of Ms. Menard's age, and "over time we all will have degenerative disk disease." He also explained his records noted Ms. Menard was on no medication when she began her treatment with him, Ms. Menard actually waited six months between visits after a steroid injection and was instructed to return as needed, and by her December 9, 2005

Dr. Gammel explained the neural foramen is "[w]here the nerves come out of the spinal cord." When disks are injured, nerves are pushed back into the opening or foramen, and arthritis of the joint can occur. This could also narrow the opening, which could potentially lead to irritation of the nerve root.
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Dr. Gammel explained minimal convexity means little change in the shape of the disk. 5

visit, Ms. Menard's neck symptoms had improved to such a point he was not going to do another radiofrequency neural ablation. The focus of treatment then turned to the lumbar spine. Testimony of Dr. Doug Womack Dr. Doug Womack, an economist and a retired professor of economics at the University of Louisiana, testified concerning the present-day value of Ms. Menard's future medical needs. He reached his conclusions by assuming a life expectancy of 41.44 years, accepting the testimony of Dr. Gammel concerning the need for and cost of future care, and assuming Ms. Menard would require no surgery in the future. Dr. Womack testified his initial calculations admitted into the record as Menand's Exhibit 8 were based on a phone conversation with Dr. Gammel and provided the following medical expenses based on the category of treatment: Doctor visits (Dr. Gammel)...................... (90 x 4/yr=360/yr) Physical Therapy...................................... (150 x 24/yr = 3,600/yr) Lortab/Percocet........................................ (P 45/mo L 68/mo = $678/yr ave) Mobic/EC Naproxen

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