P&L Wins Again – October 2018

After a week-long trial in the 19th Judicial District Court for the Parish of East Baton Rouge, a jury returned a verdict totaling just $4,000 after reduction for third-party fault in a suit arising out of a single vehicle accident that occurred on September 9, 2014 in the employee parking lot of a chemical plant. The plaintiff alleged injuries to her head, neck, and wrists. She underwent an anterior cervical discectomy and fusion as well as a right carpal tunnel release. Incurred medical expenses were in excess of $150,000. Plaintiff sought damages for bodily injury, mental anguish, lost wages and earning capacity, and medical expenses past and future. The case was tried by the Perrier & Lacoste litigation team of Guy Perrier and Ralph Aucoin, Jr.

The plaintiff was a passenger on a bus being operated by the defendant. Plaintiff alleged that the bus driver misjudged his turn and ran into a metal gate at the entrance to the plant. She initially claimed that the fence came through the window, striking her in the face, and causing her injuries. Months later she told her treating physicians that she braced using her hands and wrists. However, at trial when confronted with contradictory photographs and testimony, the plaintiff testified that she did not know how the accident occurred, that she was still trying to figure it our herself, and that she may have told “50 different versions of what happened.” She was forced to admit that there was no broken glass or damage to the interior of the bus and that she was holding her phone, not bracing when the incident occurred.

Plaintiff’s alleged eye-witnesses did not help her cause. The first testified that her eyes were closed and that she did not see anything. The next witness could not recall where she was seated on the bus or where the plaintiff was in relation to her.

The defendants established that as the bus driver was making his turn into the gate of the parking lot, another driver in his personal vehicle attempting to exit the lot cut in front of the bus causing the driver to tighten his turn and brush up against the chain link gate. Both the bus driver and a passenger on the bus called by the defense testified concerning the phantom vehicle. The jurors assigned 60% fault to the unknown driver of the other vehicle and 40% fault to the defendant driver. Strategically, based on the favorable testimony already elicited, defendant did not question its driver in plaintiff’s case in chief and chose not to call him in the defense case in chief.

Plaintiff’s credibility remained at issue throughout the trial. Her treating neurosurgeon confirmed that her MRI films and his lack of objective findings did not match up with plaintiff’s subjective complaints. He was only able to relate her injuries to the accident by history alone and confirmed that when doing so the plaintiff’s history being complete and accurate is of critical importance. Defendants were able to establish that the plaintiff did not inform her treating neurosurgeon about a prior incident involving her wrists or a subsequent slip-and-fall with new complaints of injury to her head and neck.

The defense argument that plaintiff sustained nothing more than a soft tissue contusion to her cheek was bolstered by the testimony of an expert in the fields of accident reconstruction and injury biomechanics. The defense expert testified that the mechanism of injury for a wrist or neck injury were not present in this accident as the forces sustained were less than every day activities and were not oriented in the right direction. The damage to the exterior of the bus was pulled out and away, not pushed in towards the plaintiff.

The defenses’ argument was supported by testimony from plaintiff’s family members who confirmed that post-accident she got married, moved houses, attended parades, and regularly dances at second lines.

The jury also did not believe the plaintiff’s expert in the field of vocational rehabilitation and life care planning. Plaintiff’s initial expert reports concerning future medical needs and costs totaled over $2,000,000. By the time of trial the expert had corrected the report five times and the estimate had been reduced to $300,000. Despite the multiple prior reductions the expert testified that the current amount was not subject to change and represented the minimal amount necessary for plaintiff’s future medical care. This was in spite of the fact that the plaintiff herself testified that she had completed treatment approximately a year and a half before trial and had no plans or recommendations to seek further treatment.

Plaintiff’s claims for past and future lost wages and loss of earning capacity were also adversely impacted by her own testimony. The plaintiff worked as a fire-watch at the plant. Her medical and employment records indicate that following the accident she was cleared to return to work, but was placed on a height restriction due to her uncontrolled diabetes, an unrelated and pre-existing condition. Plaintiff also testified that her work schedule varied and that the amount of money she earned was directly related to the number and lengths of jobs available. Her records show that she was let go about a month after the accident due to a reduction in the workforce.

Plaintiff asked the jury for $1.13M in total damages. The jury determined that plaintiff sustained nothing more than a soft-tissue type injury of short duration resulting in a total award of $4,000 after reduction for third-party fault. Plaintiff’s post-trial motions for Judgment Notwithstanding the Verdict, New Trial, and Additur were denied.