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How low can you go? Damage award challenged

How low can you go? Damage award challenged

September 15
12:53 2016

How low can you go? Damage award challenged

On October 25, 2012, a vehicle driven by Sheila Joseph was rearended by a vehicle driven by Gregory Nichols. Joseph filed suit against Nichols seeking a directed verdict as to liability and special damages. The court granted Joseph’s motion as to liability, finding Nichols to be 100% at fault for the accident, and took under advisement her motion as to causation of injuries. Subsequently a jury returned a directed verdict awarding Joseph the full amount of her medical expenses ($20,118) and $10,500 in general damages. In light of the jury’s verdict, the trial court found Joseph’s motion for directed verdict on causation to be moot. Joseph appealed.

On appeal, Joseph contended that the jury abused its discretion in awarding her general damages in the amount of only $10,500 because the uncontroverted evidence established that the accident aggravated her pre-existing arthritic spine condition, caused her to seek 16 months of conservative care, and inhibited her ability to fully participate in outdoor activities she formerly enjoyed.

Nichols argued that the jury did not abuse its discretion in its award of damages to Joseph, who was 57 years old at the time of the accident and 60 years old at the time of trial, in light of photographic evidence showing the “minor nature of the impact between the plaintiff and defendant vehicle.” Nichols also asserted that the jury’s assessment of Joseph’s credibilty and resulting award of damages should not be disturbed.

Joseph’s uncontradicted testimony at trial was that she led a very active lifestyle prior to the accident, and that she never experienced any pain in the areas of her body that were in pain after the accident. Joseph was diagnosed with rheumatoid arthritis 10 years prior to trial, but she claimed that it affected only her right hand and ankle and that she had been in remission since it was diagnosed. Four days after the accident with Nichols, Joseph first sought treatment for “intense pain and spasms in her neck, back and shoulders” from George Van Wormer, a chiropractor. She treated with Van Wormer for one year and three months. She testified that Van Wormer discharged her from his care because she had reached “a plateau where [she] was able to manage.”

Joseph later consulted a neurosurgeon who diagnosed her with lumbar degenerative disease with stenosis and an aggravation of a pre-existing degenerative disease as a result of the accident.

Based on case law and the facts set forth at trial, the court concluded that the lowest reasonable amount the evidence would justify for pain and suffering was a total of $24,000, subtracting the amount previously awarded to Joseph, for an increase of $14,000. Similarly, the court awarded $5,000 for loss of enjoyment of life, subtracting the $500 amount previously awarded by the jury, for an increase of $4,500.

Joseph vs Netherlands Insurance Company, Gregory Nichols, and Pathology Resource Network, LLCCourt of Appeal of Louisiana, Fifth Circuit-February 24, 2016-No. 15–CA–549.



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