
    Joseph Lee DELCO, Jr. v. Eugene STAFFORD, Tycoon Trucking, Inc., Clarendon American Ins. Co. & Clarendon National Ins. Co.
    No. 2001 CA 0018.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 20, 2002.
    Rehearing Denied March 25, 2002.
    Writ Denied June 14, 2002.
    
      Philip J. McMahon, Houma, for Plaintiff/Appellee Joseph Lee Delco, Jr.
    Dan E. West, Margaret Diamond, Baton Rouge, for Defendant/Appellant Clarendon National Ins. Co., Tycoon Trucking, Inc. and Clarendon National Insurance Company.
    
      Before: GONZALES, KUHN, CIACCIO, JJ.
    
    
      
      . The Honorable Philip C. Ciaccio, Judge (retired), Fourth Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.
    
   CIACCIO, J. Pro Tem.

This appeal arises following a judgment notwithstanding the verdict increasing plaintiffs award for general damages and future lost wages.

FACTS

This litigation stems from a collision between two semi tractor trailer rigs on November 14, 1998 in Assumption Parish. As the rigs passed each other on the two-lane Louisiana Highway 662, defendant Eugene Stafford poached slightly into plaintiffs lane.

Plaintiff Joseph Lee Delco, Jr. filed suit against Mr. Stafford, his employer, Tycoon Trucking, Inc., and its insurer, Clarendon National Insurance Company, for injuries allegedly sustained in the accident. After a trial, a jury allocated 100 percent fault to defendant Stafford and awarded damages:

General damages $ 3,000.00
Past medical expenses 26,716.46
Future medical expenses 0
Past lost wages 40,000.00
Future lost wages 57,000.00

for a total of $126,716.46. Plaintiff subsequently moved for a judgment notwithstanding the verdict (JNOV), arguing that the damage awards were inadequate. The trial court granted the motion and increased plaintiffs general damage award to $125,000.00 and the award for future lost wages to $150,000.00.

Defendants now appeal, alleging that the trial court erred in granting plaintiffs JNOV by 1) weighing the evidence and evaluating witnesses’ credibility and 2) increasing damage awards that were logical and consistent with the evidence.

IsLAW AND ARGUMENT

LSA-C.C.P. art. 1811 is the authority for a JNOV. In Davis v. Wal-Mart Stores, Inc., 00-0445 (La.11/28/00), 774 So.2d 84, 89 the Louisiana Supreme Court discussed the standard to be used in determining whether a JNOV has been properly granted:

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable jurors could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. If there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motion should be denied. In making this determination, the court should not evaluate the credibility of the witnesses and all reasonable inferences or factual questions should be resolved in favor of the non-moving party. (Emphasis ours.)

In general, the standard of review for a JNOV is twofold. First, we must determine that the jury verdict was not supported by competent evidence and was wholly unreasonable. To make this determination, we must find that all of the evidence, when viewed in a light most favorable to the party benefiting from the JNOV, points so strongly and overwhelmingly in his favor that reasonable men could not arrive at a contrary verdict on the issue. Davis v. Wal-Mart Stores, Inc., 774 So.2d at 89. Only if we find that the trial judge properly granted the JNOV will we move forward to the second prong and review the JNOV using the manifest error standard. Id.

Plaintiff testified that only his knee hurt immediately after the accident, but later that night, he went to Terrebonne General Medical Center “[f|or back and neck injury.” Later, on cross examination, plaintiff testified, ‘‘Well, I told [hospital staff] my back and neck was (sic) bothering me, but mainly I had headaches.”

The police report and photographs supported plaintiffs testimony that defendant Stafford “came over into my lane and ran all the way down the side of my truck.” But Dr. William Kinnard testified that plaintiff sought treatment for injuries sustained in a “head-on” collision. At the time, plaintiff told him that the |4knee pain had subsided, but the pain in his back and neck continued. Plaintiff described neck pain and a tingling sensation in both arms, as well as lower back pain and burning in his thighs.

Dr. Kinnard testified that plaintiffs x-rays and neurological exams were normal, but he noted tenderness and spasms in the lower back. According to Dr. Kinnard, the patient cannot control whether and when the muscles will contract in a spasm. Thus, rather than a plaintiffs subjective reports of pain, the spasm served as objective evidence to substantiate his complaints.

Further testing showed a disc abnormality. Dr. Kinnard testified that after several months, conservative treatments had not helped and plaintiff felt that the pain was intolerable. Dr. Kinnard performed disc surgery in June, 1999. By August, the spasms had ceased and plaintiff was able to resume physical therapy. Dr. Kinnard testified that he anticipated releasing plaintiff one year after the surgery.

Plaintiff testified that he had absolutely never hurt his back before this accident. After some memory prodding on cross-examination, plaintiff remembered seeing a doctor for “a little strain, but it didn’t really bother me ...” after attempting to lift a large roll of film at work. Dr. Bruce Guidry testified that he treated plaintiff for a back strain after this incident. In addition, evidence showed that plaintiff filed a 1992 lawsuit alleging lower back strain as a result of an auto accident. Plaintiff testified that he sought treatment at Terrebonne General Hospital for neck and back injury, but that he was not really hurt. Dr. Kinnard testified that plaintiff never told him about any prior back injuries.

Trevor Bardarson, a physical therapist, testified that plaintiff claimed in his evaluation to be severely disabled and unable to return to work. Mr. Bardarson performed a functional capacity test, but deemed the test invalid because, in his opinion, plaintiff did not exert maximum effort. Mr. Bar-darson testified that when he pushed on plaintiffs lower back, his heart rate did not increase as it would for |fisomeone who was truly in pain. What’s more, according to Mr. Bardarson, plaintiffs complaints of pain in various places did not make sense anatomically.

Dr. Christopher Cenac evaluated plaintiff for the defense. Apparently, plaintiff also told Dr. Cenac that he was injured in a “head-on” collision. Dr. Cenac testified that he found no muscle spasm and therefore would not have recommended surgery. He found some evidence of wear and tear, but believed that plaintiff suffered from a pre-existing, work-related degenerative condition. Dr. Robert Guimlty further testified that plaintiffs bulge was fairly common. Even Dr. Kinnard admitted on cross-examination that the lifting incident could have led to the disc bulge and that a significant percentage of the population has that type of wear and tear bulge by age forty.

Plaintiff testified that he would love to return to work, but the pain makes it too difficult. Dr. Kinnard assessed a 10 percent disability and testified that plaintiff was not yet ready to return to work, but could eventually return to light duty. But he would not be able to repeatedly climb in and out of the truck or change a fifty pound tire. Dr. Cenac, on the other hand, testified that plaintiff could probably return to driving trucks.

The jury awarded the full amount for medical expenses and nearly the full amount estimated by plaintiffs expert for past lost wages, but only $3,000.00 in general damages and $57,000.00 in future lost wages. In granting plaintiffs motion for a JNOV, the court expressed “surprise” at the verdict and expressed its own opinions on witnesses’ credibility and weight of the evidence:

Dr. Kinnard gave very credible and a reasonable explanations (sic) of why there was a herniated disk (sic). And the Court believes that Dr. Kinnard’s evaluation was correct in this case. Dr. Cenac was an I.M.E. By law, the treating physician, his testimony is entitled to greater weight. And I don’t necessarily believe that the jury rejected that he received a herniated dis(c).
But from a credibility standpoint, Dr. Kinnard’s testimony was certainly credible, and the Court does accept that as being the credible version. If I was the judge in that case, I certainly would lfihave accepted Dr. Kinnard’s testimony under the circumstances we had.
I had great concern for the [functional capacity evaluation] testimony.... But I could see where [it] would have lended (sic) credence to the theory that maybe he wasn’t hurt as bad and he was malingering or not of being cooperative.
But on the other side of the coin, if you listen to the doctor’s explanation, or the, you know, the explanation for the response and other possible reasons for those responses, that did not lend to me a reasonable explanation that would indicate that the Plaintiff was malingering or not being credible.
Based on the — the Court found the Plaintiff credible; I just didn’t find him very verbal.... While he did different types of jobs, it appeared that he always seemed to be moving on to some higher paying jobs in his work history, and he exhibited a willingness to work. So, the Court feels that, you know, that aspect of the award, the future loss (sic) wage needs to be modified.

As noted above, the trial court shall not independently evaluate witness credibility and weigh evidence when considering a JNOV. Davis v. Wal-Mart Stores, Inc., 774 So.2d at 89. All reasonable inferences or factual questions should be resolved in favor of the non-moving party. Dr. Cenac testified that he found no concrete evidence of injury related to this accident and would not have recommended surgery in this instance. Furthermore, defendant offered several conflicting statements by plaintiff. We do not know that the jury relied upon these inconsistent statements and, as a result, determined that the plaintiff was exaggerating his injuries. But even if that were the case, the trial judge cannot properly overrule the jury’s finding simply because the court felt that the inconsistencies were the result of poor verbal skills rather than an untruthful nature.

Considering the evidence presented by defendant, we find that it was of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions. The parties introduced conflicting evidence on how the accident happened, the severity of the crash, the nature and extent of plaintiffs injuries, if any, as well as the extent of plaintiffs | -¡.disability, if any. The trial judge improperly evaluated the witnesses’ credibility and weighed evidence in setting aside the jury verdict. Reasonable questions of fact should have been resolved in favor of defendants. Accordingly, we reverse the JNOV and direct the trial court to reinstate the jury’s verdict.

CONCLUSION

For these reasons, the JNOV granted by the trial court is reversed and the trial court is ordered to reinstate the jury’s verdict. We now remand this matter to the trial court and order judgment rendered and signed in accordance with the jury verdict. All costs of this appeal are assessed to plaintiff-appellee.

REVERSED AND REMANDED.

KUHN, J., concurs and assigns reasons.

11 KUHN, J.,

concurring.

I write separately to point out an erroneous suggestion which seems to be inferred in some of the jurisprudence. There is no codal authority to support a procedure requiring that an aggrieved party must appeal the original judgment rendered in conformity with the jury’s verdict simultaneously with the judgment setting forth the trial court’s JNOV determination. The plain language of Article 1811 E of the Louisiana Code of Civil Procedure calls into question the propriety of such a procedure.

Louisiana Code of Civil Procedure Article 1811 E states:

If the motion for a judgment notwithstanding the verdict is denied, the party who prevailed on that motion may, as appellee, assert grounds entitling him to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for a judgment notwithstanding the verdict. If the appellate court reverses the judgment, nothing in this Article precludes the court from determining that the appel-lee is entitled to a new trial or from directing the trial court to determine whether a new trial shall be granted. (Emphasis added.)

Therefore, under Article 1811 E, at the direction of the court of appeal, the judgment rendered in conformity with the trial court’s JNOV determination may be remanded to the trial court for a ruling on a new trial motion. What becomes of the original judgment rendered in conformity with the jury’s verdict which is simultaneously before the court of appeal when the appellate court reverses the denial of the JNOV and under Article 1811 E the court of appeal directs the trial court to rule on the new trial motion? Do not all aggrieved parties have the right 1 ¿to lodge their complaints by appealing that new trial ruling? Thus, I believe the unclear language of Article 1811 E calls into question the proper time delays for appealing judgments when parties file motions for JNOV.

Likewise the jurisprudential practice of reviewing the propriety of the original judgment incorporating the jury’s verdict at the same time the appellate court reverses a trial court’s grant of JNOV— whether or not that underlying judgment has been appealed simultaneously with the JNOV judgment — is also questionable because of the unclear language presently set forth in Article 1811E. How does a JNOV-appellee know when the court of appeal will reverse the trial court so as to raise contentions with the original judgment in the appeal of the JNOV determination? If the underlying judgment is not simultaneously appealed with the subsequent JNOV judgment, does the court of appeal have authority to review that original judgment rendered in conformity with the jury’s verdict and render a decree? While La. C.C.P. art. 2164 might arguably be authority because an appellate court is mandated to render a judgment which is just, legal, and proper, the attorney considering and fashioning an appeal has no assurance of its uniform application among the courts exercising appellate jurisdiction.

For these reasons, the question may be asked if it would be proper for the Law Institute and the legislature to address the ambiguities created by the unclear wording of Louisiana Code of Civil Procedure Article 1811.

| ,OV REHEARING

PER CURIAM.

Joseph Lee Delco, Jr. applied for rehearing, arguing: 1) our decision in Delco v. Stafford, 01-0018 (La.App. 1 Cir. 2/20/02), 813 So.2d 458 overrules Griffin v. Louisiana Sheriff’s Auto Risk Association, 99-2944 (La.App. 1 Cir. 6/22/01), 802 So.2d 691 and Thibodeaux v. Wal-Mart Stores, Inc., 98-0556 (La.App. 1 Cir. 4/1/99) 729 So.2d 769, writ denied, 99-1244 (La.6/18/99), 745 So.2d 28; 2) that the jury could only find that Mr. Delco suffered a ruptured disc as a result of this accident and $3,000 general damage award effectively overrules every First Circuit case awarding greater damages for a similar condition; and 3) in overturning the JNOV, we neglected to find that the trial judge was manifestly erroneous.

We find no merit in plaintiffs contention that our decision in Delco v. Stafford overruled Griffin and Thibodeaux. In fact, we applied these two cases to support our holding here. On review of a JNOV award of higher quantum, the appellate court uses the same criteria as the trial court:

could reasonable men in the exercise of impartial judgment differ as to the fact that the jury award was ... abusively low. If the answer is in the affirmative, then the trial court erred in granting the JNOV, and the jury’s damage award should be reinstated....

Thibodeaux v. Wal-Mart Stores, Inc., 729 So.2d at 771, citing Anderson v. New Orleans Public Service, Inc., 583 So.2d 829, 834 (La.1991). The legal principles set forth in these cases bind our future decisions; the particular facts (such as injuries sustained and the amount of damages awarded for those injuries) may guide us in our review, but do not control our conclusions.

In Thibodeaux, the appellate court believed that plaintiffs self-serving testimony and lack of full disclosure prejudiced her with the jury. But Griffin is distinguishable because “undisputed objective medical evidence cannot be called into question by the inaccuracies in plaintiffs deposition testimony.” Thibodeaux v. Wal-Mart Stores, Inc., 729 So.2d at 771.

Plaintiff farther contends that because the jury awarded damages for medical expenses and for lost wages, “it cannot be said that this jury in its finding did anything other than find as a fact that this man had had a disc injury ...” We disagree.

As in Thibodeaux, the jury may have found this plaintiffs testimony was self-serving. Plaintiff told doctors that a sideswipe collision was head-on and he neglected to tell them about prior back injuries. But unlike Ms. Thibodeaux, he cannot rely on “undisputed medical testimony.” In his memorandum in support of the application for rehearing, plaintiff contends that “the evidence was uncontroverted that the plaintiff had sustained a disc injury and that this injury resulted in the need for a lumbar laminectomy.” The record reads otherwise.

Dr. Kinnard found spasms in plaintiffs lower back, but Dr. Cenac testified that he found no concrete evidence of injury and would not recommend surgery:

A. When I say normal, it was normal for a ruptured disk. There were some findings associated with wear and tear and degenerative changes |3in his back and some arthritic changes in his facet joints. That’s abnormal in a 20-year-old, but it’s not abnormal, it’s something you expect in an older person.
Q. All right.
A. But it’s a[n] age work-related thing not a traumatic thing.
Q. All right. Did you believe, when you reviewed the films, that there was any nerve root impingement by any herniated disk in this man’s back?
A. No.
Q. Taking all the diagnostic studies and the records that you reviewed, would , you have performed surgery on this man’s back?
A. I would not have recommended surgery.
Q. On your examination, you noted that there was (sic) no muscle spasms?
A. I found that, that’s correct.

The physical therapist, Trevor Bardarson, testified that he believed plaintiff tried to exaggerate his symptoms for the functional capacity test:

Q. You reached a conclusion that the [functional capacity] tests really didn’t tell you much, because Mr. Delco did not—
A. Did not exert a maximal effort, yes, correct.
When I pushed on his vertebrae, which is (sic) the bones down at the lower end of the back, on the low part of the back, he had some pain that he described as severe, and he rated that as 8 out of 10. What I noted was there was no significant change in heart rate there. So his heart rate, which we have a heart rate monitor strapped to them so we can monitor heart rate continually, the heart rate stayed the same.
So, during the focus testing, I put two measuring instruments on their back.... Now, it’s hooked into a computer so the computer is recording what happens as they move. And I ask them to bend forward as far as they can, tell them, is that as far as you can go? Yes, that’s as far as I can go. Okay. I hit the button.
I do three of these in repetition to see if he’s going the same distance every time, et cetera, then I have him bend 14backwards. And so this is all when I’m asking him to move and show me the ability he has to move.
And on nonfocused testing, which is [a] big part of the evaluation where when they’re doing other activities that may involve similar motions, is (sic) the motions consistent? [A]re they the same?
Q. In this particular category and in the photographs that you took of Mr. Del-co, did you see a difference in the focused and nonfocused testings?
A. Yes. In — in focused testing, we had little over half of the available lumbar, forward bending and in nonfoeused testing, it was pretty much full. There was full motion there.
We do [maximal volitional effort] tests to find out if they’re actually trying.
Q. And what did these tests show? Do you have the results of those tests?
A. Yeah. Out of six — out of five different tests, four of them are positive for what we would call “submaximal efforts.” So, he didn’t try as hard — as hard as he possibly could.

Plaintiff and defendants offered conflicting testimony on the extent, cause and even existence of plaintiffs injuries. And no doctor concluded outright that plaintiff was unable to return to work. Even Dr. Kinnard found that “he can go back and work in at least a light capacity.” And he did not completely rule out plaintiffs return to truck driving:

Q. Do you think he — or would you recommend a job that required him to do a lot of climbing on and off a truck. A. No.
Q. Or — or lifting a 50-pound tire and repairing it?
A. No. Again, you know, again, that could be done maybe periodically, but it’s not the type of thing he can do regularly.
Dr. Cenac testified that “most (sic) probably than not he would be able to return as a truck driver ...”

Accordingly, without evaluating credibility or weighing evidence, we hold that reasonable men could differ on the severity of plaintiffs injuries, if | sany, the extent of his disability, if any, and the amount of damages that should have been awarded.

Plaintiff incorrectly concludes that certain injuries merit a particular amount of damages. Louisiana jurisprudence has held time and again that the jury’s discretion in awarding damages is great, even vast:

[A] jury, in the exercise of its discretion as a factfinder, can reasonably reach the conclusion that a plaintiff has proven his entitlement to recovery of certain medical costs, yet failed to prove that he endured compensable pain and suffering as a result of defendant’s fault.... [I]t would be inconsistent with the great deference afforded to the fact-finder by this court and our jurisprudence to state that, as a matter of law, such a verdict must always be erroneous.

Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70, 76.

Plaintiff seems to want to springboard past the more difficult considerations in our review of its JNOV. In its reasons for judgment, the trial court expressed “surprise” and stated that “the verdict needs to be corrected.” The trial court based the JNOV on its own opinions of witnesses’ credibility and weight of the evidence:

Dr. Kinnard gave very credible and a reasonable explanations (sic) of why there was a herniated disk (sic). And the Court believes that Dr. Kinnard’s evaluation was correct in this case. Dr. Cenac was an I.M.E. By law, the treating physician, his testimony is entitled to greater weight. And I don’t necessarily believe that the jury rejected that he received a herniated dis(c).
But from a credibility standpoint, Dr. Kinnard’s testimony was certainly credible, and the Court does accept that as being the credible version. If I was the judge in that case, I certainly would have accepted Dr. Kinnard’s testimony under the circumstances we had.
I had great concern for the [functional capacity evaluation] testimony.... But I could see where [it] would have lended (sic) credence to the theory that maybe he wasn’t hurt as bad and he was malingering or not of being cooperative.
But on the other side of the coin, if you listen to the doctor’s explanation, or the, you know, the explanation for the response and other possible reasons for those responses, that |fidid not lend to me a reasonable explanation that would indicate that the Plaintiff was malingering or not being credible.
Based on the — the Court found the Plaintiff credible; I just didn’t find him very verbal.... While he did different types of jobs, it appeared that he always seemed to be moving on to some higher paying jobs in his work history, and he exhibited a willingness to work. So, the Court feels that, you know, that aspect of the award, the future loss (sic) wage needs to be modified.

Only if we find that the trial court properly granted the JNOV will we review the JNOV using the manifest error standard. Griffin v. Louisiana Sheriff’s Auto Risk Association, 802 So.2d at 711. In Delco, we found that the trial court improperly granted the JNOV. We had no reason nor legal authority that would allow us to examine the JNOV using manifest error. REHEARING DENIED.

GONZALES, J., agrees and assigns additional reasons.

ON REHEARING

GONZALES, J.,

agrees and assigns additional reasons.

I was a member of the panel that decided Griffin v. Louisiana Sheriffs Auto Risk Association, 99-2944 (La.App. 1 Cir. 6/22/01), 802 So.2d 691. In that case, I dissented but assigned no reasons. As I expressed to the members of that panel, my reason for disagreement with the majority opinion was based on the issue of including contractual write-offs under the collateral source rule, as discussed on page 713 and following of that opinion. I was satisfied that the trial judge in that case, Judge Jerome J. Barbera, III, had correctly applied the law relative to JNOVs.

A significant distinguishing factor between Griffin and the instant case is the legal reasoning of the trial judge. Judge John J. Erny, Jr., the trial judge in this case, in his reasons for granting the JNOV, clearly articulated the wrong standard in my opinion. A simple reading of his reasons will show that he substituted his judgment for that of the jury. That erroneous analysis was not present in the Griffin case. This fact alone is sufficient to distinguish the two cases and is an additional reason for our finding that this case does not overrule the Griffin case. 
      
      . In his closing argument, plaintiff's attorney told the jury that despite the listing for future medical expenses on the verdict form, he was not asking for damages in this category.
     