Earls v. Medtec Ambulance Corporation et al
Filing
274
ORDER granting in part and denying in part Plaintiff's 266 Motion for Reconsideration. The Court adopts neither the remittitur order as proposed by Defendant or the judgment proposed by Plaintiff. Further Ordered that the Court adopts the remittitur detailed below. Signed by Judge Ivan L.R. Lemelle on 9/27/2012. (ijg, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RYAN EARLS
CIVIL ACTION
VERSUS
NO. 11-398
MEDTEC AMBULANCE CORPORATION
SECTION “B”(5)
ORDER AND REASONS
Before the Court is Plaintiff’s Motion for Reconsideration
(Rec. Doc. No. 266) and the proposed judgment/order from the
parties on the issue of remittitur.1 (Rec. Doc. Nos. 268-69).
Accordingly, and for the reasons below,
IT IS ORDERED that Plaintiff’s Motion for Reconsideration is
GRANTED in part and DENIED in part. The Court adopts neither the
remittitur order as proposed by Defendant or the judgment proposed
by Plaintiff.
IT IS FURTHER ORDERED that the Court adopts the remittitur
detailed below.
1
The Court ordered the parties to submit a proposed judgment incorporating
the Court’s rulings on the issue of remittitur. (Rec. Doc. No. 264). Plaintiff
did not do so. Instead, Plaintiff filed a Motion for Reconsideration for
remittitur on past medical damages (Rec. Doc. No. 266). Plaintiff’s Memorandum
in Support of his proposed judgment also contains arguments requesting that the
Court modify its rulings on remittitur of future medical expenses. (Rec. Doc. No.
268-2). Defendant did, in fact, comply with the Court’s order. (Rec. Doc. No.
296-2). However, Defendant’s Memorandum in Support of its proposed order only
addresses future medical expenses. (Rec. Doc. No. 269-1). Defendant submitted its
arguments on past medical expenses in response to Plaintiff’s Motion for
Reconsideration. (Rec. Doc. No. 270). Because of the nature of the pleadings
before the Court, Plaintiff’s Motion for Reconsideration and the parties proposed
judgments are addressed together.
PROCEDURAL HISTORY
Plaintiff
filed
his
action
under
Louisiana’s
Products
Liability Act in Civil District Court for the Parish of Orleans
against Medtec Ambulance Corporation on January 24, 2011. (Rec.
Doc. No. 1-1). Defendant removed the action to this Court based on
diversity jurisdiction on February 16, 2011 (Rec. Doc. No. 1) and
filed its answer on February 23, 2011. (Rec. Doc. No. 4). The City
of New Orleans intervened on October 12, 2011. (Rec. Doc. No. 27).
On October 26, 2011, Plaintiff filed his First Supplemental and
Amended Complaint, adding Lexington Insurance Company and Oshkosh
Corporation as Defendants. (Rec. Doc. No. 33). After discovery was
conducted, Plaintiff filed his Motion for Summary Judgment on
January 20, 2012. (Rec. Doc. No. 79). Defendants Oshkosh and Medtec
also filed summary judgment motions on January 24, 2012. (Rec. Doc.
Nos. 85, 87). The Court denied both parties’ motions and granted
Oshkosh’s motion for summary judgment (Rec. Doc. No. 189), and the
case proceeded to trial.
A jury trial was conducted on April 3-5 and 9, 2012. (Rec.
Doc. Nos. 230-31, 233-34). The Court entered judgment in favor of
Plaintiff (Rec. Doc. No. 236), which was later amended to allow for
interest. (Rec. Doc. No. 257). Subsequently, Defendant filed its
Motion to Alter Judgment, Motion for New Trial, and Motion for
Judgment as a Matter of Law (Rec. Doc. No. 246), and Plaintiff
filed his Motion to Tax Costs (Rec. Doc. No. 247).
2
The Court heard oral arguments on Defendant’s Motions on June
27, 2012. (Rec. Doc. No. 263). At that time, the Court granted in
part and denied in part Defendant’s Motion for Remittitur, denied
Defendant’s other motions, and further ordered that the parties
submit a proposed judgment incorporating the Court’s rulings on the
issue of remittitur. (Rec. Doc. No. 264). Currently pending before
the Court is Plaintiff’s Motion for Reconsideration (Rec. Doc. No.
266)
and
the
proposed
judgment/order
from
the
parties
on
remittitur. (Rec. Doc. Nos. 268-69).
LAW AND ANALYSIS
A.
Past Medical Expenses
A motion for reconsideration may be made under either Federal
Rule of Civil Procedure 59(e) or 60(b). Shepherd v. Int'l Paper
Co., 372 F.3d 326, 328 n. 1 (5th Cir. 2004). Such a motion must
“clearly establish either a manifest error of law or fact or must
present newly discovered evidence. These motions cannot be used to
raise arguments which could, and should, have been made before the
judgment issued.” Ross v. Marshall, 426 F.3d 745, 763 (5th Cir.
2005), citing Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.
1990). In considering a motion for reconsideration, a court “must
strike the proper balance between two competing imperatives: (1)
finality, and (2) the need to render just decisions on the basis of
all the facts.” Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350,
3
355 (5th Cir. 1993). A Rule 59(e) motion should not be granted
unless the plaintiff can show: (1) an intervening change in
controlling law; (2) the availability of new evidence previously
not available; or (3) the need to correct a clear error of law or
fact or to prevent a manifest injustice. Schiller v. Physicians
Resource Group, Inc., 342 F.3d 563, 567 (5th Cir. 2003). A court
may grant a motion to reconsider on the basis of newly discovered
evidence only if: (1) the facts discovered are of such a nature
that they would probably change the outcome; (2) the facts alleged
are actually newly discovered and could not have been discovered
earlier by proper diligence; and (3) the facts are not merely
cumulative or impeaching. Infusion Resources, Inc. v. Minimed,
Inc., 351 F.3d 688, 696-97 (5th Cir. 2003).
Awards of past medical expenses are judged as special damages
and
must
be
based
upon
some
reasonable
amount
of
medical
information. Mack v. Wiley, 07-2344 (La.App. 1st Cir. 5/2/08); 991
So.2d 479, 489. Certainly, the plaintiff is entitled to his past
medical expenses as an award, but only those medical expenses that
have been proven and that have been established and introduced into
the record.
In this particular case, the jury returned a verdict for past
medical expenses of $40,000.00. The amount established at trial was
supported, in part, by the stipulation entered by the City of New
Orleans and other medical evidence submitted to the jury. The issue
4
now is what amount of past medical expenses was before the jury and
what amount, if any, should be remitted from the jury’s award. (See
Rec. Doc. No. 270, pp.2-3).
The Workers’ Compensation stipulation is an agreement between
Plaintiff and the City of New Orleans that the City is entitled to,
inter alia, reimbursement of $19,437.17 in medical benefits. (Rec.
Doc. No. 266-3). While Plaintiff claims that the stipulation
excused him from proving those items during trial (Rec. Doc. No.
266-1, p.1), Defendant points out that the stipulation was between
Plaintiff and the City, and, thus, the Workers’ Compensation
stipulation does not excuse Plaintiff from proving to the jury the
amounts he incurred in past medical expenses based upon some
reasonable amount of medical testimony. (Rec. Doc. No. 270).
The stipulation, while a part of the record (Rec. Doc. No.
220), was never introduced to the jury or made part of the trial
evidence. (Rec. Doc. No. 234-5). An independent review of the
record evidence, including trial testimony and exhibits, supports
an award of $20,179.102 for past medical expenses:3
1.
$2,048.28 Tulane University Hospital (P14);
2.
$230.00 Dr. Joshua Kaufman (P61);
2
The $830.00 difference between the present amount and the one originally
ordered by the Court ($19,349.10) is accounted for in the bill of Dr. Troy
Beaucoudray. Defendant has represented that bill to be $1,400.00 but a
calculation of the charges in Plaintiff’s Exhibit 65 (Rec. Doc. No. 266-10)
actually reflects a total amount billed of $2,230.00.
3
The bill from Healthport in the amount of $34.26 is not a medical
expense, but a cost for reproduction of medical records.
5
3.
$3,650.00 Dr. Neil Baum (P62);
4.
$1,935.82 Dr. Charles Aprill (P67);
5.
$5,000.00 Dr. Fred Defrancesh (Rec. Doc. No. 237, p.228);4
6.
$2,230.00 Dr. Troy Beaucoudray (P65);
7.
$2,725.00 Dr. Scott Griffies (P64);
8.
$1,160.00 Dr. Richard Meyer (P63);
9.
$1,200.00 Dr. Bradley Bartholomew (Rec. Doc. No. 237, pp.24748).
Based on the above, the Court revises its earlier ruling and
finds that Medtec is entitled to a remittitur of $19,820.90 for
past medical expenses.
Therefore, Plaintiff is entitled to an
award of $20,179.10 for past medical expenses.
B.
Future Medical Expenses
Under Louisiana law, the plaintiff must establish the amount
of the award with some certainty in order to recover for future
medical expenses. Veazey v. State Farm Mut. Ins. Co., 587
So. 2d
5 (La. App. 3 Cir. 1991). An award for future medical
expenses “will not be made in the absence of medical testimony that
they are indicated and their probable cost.” Id. at 8 (internal
quotation marks and citation omitted). Future medical expenses,
like any other damages must be established with some degree of
certainty. The plaintiff must show that, more probably than not,
4
Dr. Defrancesh testified that his bill was around $5,000.00. The bill
Plaintiff submitted in his Motion for Reconsideration (Rec. Doc. No. 266-12)
encompassed these services, but was not shown to the jury or admitted into
evidence at trial. (Rec. Doc. No. 270, p.4).
6
these expenses will be incurred. “An award for future medical
expenses cannot be based on mere speculation of the jury. Much
stronger proof, such as medical testimony of the specific expenses
to arise, should be required for such an award.” Id. (emphasis
added). According to the Fifth Circuit, “The jury may select the
highest figures that the evidence will support, however, the jury
may not speculate on damages where calculation of the damages is
definable.” Brunneman v. Terra Intern., Inc., 975 F.2d 175, 178.
Plaintiff contends that the Court’s judgment should reflect an
award of $539,574.00 for future medical expenses.
268-1 at 2-3).
(Rec. Doc. No.
Further, Plaintiff notes that Defendant conceded
that the trial record supports an award of at least $155,729.58 for
future medical expenses. (Id., at Exh. 1). Future medical expenses
must be supported by medical testimony adduced at trial, as such,
the analysis below concentrates on the medical evidence produced at
trial regarding Plaintiff’s future medical expenses.
Dr. Bartholomew
First, Plaintiff submits the trial testimony of Dr. Bradley
Bartholomew
supports
$204,704.00
in
future
a
reasonable
medical
medical
expenses.
probability
(Id.
at
3).
of
Dr.
Bartholomew testified that Plaintiff’s spine is damaged and that he
is more predisposed to having significant degradation of the spine,
and
accordingly,
recommended
a
7
three-level
IDET
procedure
to
alleviate Plaintiff’s pain.5 Defendant concedes a lifetime cost of
$9,500.00 for the IDET procedure. (Rec. Doc. No. 269).
Dr. Bartholomew further testified that based upon the nature
of
Plaintiff’s
injuries
and
the
results
of
the
discogram,6
Plaintiff should undergo lumbar fusion. Medical expert testimony
supports a total cost of $100,000.00 for said operation, hospital
and surgeon fees, and the requisite instrumentation.7 Additionally,
5
Q: So is it, based on a reasonable medical probability, that
this man's spine is now damaged and he is more predisposed to
having significantly degradation or wearing down of his spine?
A. Yes, sir.
Q: Q. Is it your opinion, then, that he is a candidate and
should have an IDET procedure, which is a surgical procedure
that you do, correct?
A. That's what I would recommend, yes, sir.
Q. Do you recommend a three-level IDET procedure?
A. Yes, sir. Normally we try not to do three levels, but the fact is he has
pain at all three levels. The procedure is what we call minimally invasive.
It's done through a big needle. So while he's in the hospital, while he's
getting it done, I prefer to do all three at one time as opposed to doing one,
see if he gets better, bringing him back and doing another, et cetera.
Q. Is it fair to say your general fee, I believe, i[s] $9,500 just for this
particular test, plus hospitalization, which is another bill?
A. Yes, sir. (Trial Trans. 240; 5-8; 238; 20-25-239;1-10).
6
Plaintiff had a discogram performed before trial, and accordingly said
cost is not calculated in future medical expenses. (Trial Trans. 89: 4-7).
7
Q. Now, based on what you know, the fact that he definitely
should have an IDET procedure, is it fair to state that, based on a reasonable
medical probability, that means more likely than not, that this gentleman will
be and is a candidate down the road for a lumbar fusion?
A. Because of the fact that he's so young and so many levels
are involved, I do think he's going to require a bigger
operation in the future as he gets those accelerated -quote/unquote, accelerated degenerative change. With the
technology we have today, that operation would be a fusion.
Q. Would you tell the jury, I believe I have heard you say
8
Dr. Bartholomew testified that “[a] fusion, as I talked about,
would go up another $25,000 from that high number there.” (Trial
Trans. at 259; 2-5).
Defendant contends there was no trial
testimony supporting Plaintiff’s need for lumbar fusion because Dr.
Bartholomew testified that the need for this procedure would be
speculative based upon his hope that the IDET procedure would grant
Plaintiff relief.8
(However, there is medical testimony by way of
Dr. Bartholomew’s testimony, albeit minimal, supporting the need
for said operation.). Therefore, per Dr. Bartholomew’s tenuous
testimony,
Plaintiff’s
lumbar
fusion
operation
would
total
approximately $125,000.00.
Regarding Plaintiff’s need for MRI scans,
Dr. Bartholomew
testified that Plaintiff will not need an MRI every two to three
that you're looking at -- for a lumbar fusion it is $100,000
just for fee for that?
A. Between the hospital, all the instrumentation that goes in and the surgeon's
fee, yes, sir.
Q. Is it fair to state, based on what you know from the
discogram, it's more likely than not, because he's a young man with this type of
ongoing problem, you said he'll need it?
A. Yes, sir. But not just based upon the discogram. Again, based upon his age and
so many discs being involved.(emphasis added)(Trial Trans. 241:4-22).
8
At this point, obviously, the hope is for Mr. Earls to undergo the IDET
procedure, and he will have significant relief and not ever have to undergo a
spinal fusion; is that correct?
A. That's my hope, yes, ma'am.
Q. So the idea that there might be a spinal fusion at this
point is difficult to predict and it would be speculative?
A. Yes, ma'am.
(Trial Trans. 256; 7-14).
9
years. (Trial Trans. 255; 8-9) (“No, I don't think he's going to
require an MRI every two to three years.”). Furthermore, Dr. Meyer
testified that Plaintiff’s need for such services would depend on
his
condition
“down
the
road.”
(Trial
Trans.
782:
12-21).
Therefore, there was no immediate expert medical testimony to
support Plaintiff’s argument that an MRI would have to be conducted
before each operation.
As such, the Court in its June 27, 2012
hearing determined that Plaintiff would only need two MRIs for the
next two years at a cost of $1,246.00 per procedure, for a total of
$2,492.00. (Hearing Trans. 81; 18-24).
Dr. Bartholomew further testified that Plaintiff would need
physical therapy, totaling $17,085.00,9 if he has flare ups, and
per the Court’s time period of three years post trial that totals
$51,255.00. (Rec. Doc. No. 268 at 6); (Trial Trans. 255-256);
(Hearing Trans. 83; 1-9).
Accordingly, there is expert medical
testimony to support a finding of $51,255.00 for Plaintiff’s future
physical therapy.
Additionally, Dr. Bartholomew testified that Plaintiff may
need one to three future visits with Dr. Bartholomew, totaling
$1,500.00 for said visits. Moreover, Defendant has no objection to
Plaintiff’s need to visit Dr. Bartholomew in the future and lists
9
A: I can usually tell you that people with back problems generally will
have flare-ups once or twice a year that may require -- or usually does require
a course of therapy because it hasn't responded to conservative measures. So I
would say maybe twice a year a three-week course. It's usually three times a
week, three weeks is nine visits, twice a year, so 18 visits. (Trial Trans. 255;
20-25- 256; 1-3).
10
$1,500.00 for these visits, in accordance with the Court’s June 27,
2012 rulings. (Rec. Doc. No. 269-1 at 5).
Finally, regarding the facet block procedure, Dr. Bartholomew
testified that he had performed said procedure before trial,
because he wanted to “do the least invasive or smallest thing
first.” (Trial Trans. 236; 15-19).
But, the results of said
procedure were not conclusive, and, thus, Plaintiff underwent a
discogram. (Id. at 237; 5-21).
hearing
found
that
The Court in its June 27, 2012
immediate
medical
expert
testimony
on
Plaintiff’s need for future facet block testing was lacking.
However,
the
Court
ultimately
determined
that
because
Dr.
Bartholomew initially ordered such testing, there was some minimal
evidence for a once a year procedure at $3,000.00 for a total of
$6,000.00
for
a
two-year
period.10
Finally,
based
on
the
accumulation of medical testimony, the Court in its June 27, 2012
hearing determined that it saw the need “down the line” for the
hepatic panel, but not at the frequency cited by life care plan
specialist Carla Seyler.
As such, the hepatic panel is estimated
10
THE COURT: Dr. Bartholomew had, indeed, ordered the
initial facet blocks, so apparently he felt as if there was
some need for it at one point or another. The idea that there
is record evidence of a need for it would suggest that that
need would be something, at least for a period of time here of,
again, based upon the record evidence, a two-year period. If
you look at the two-year period, then you're looking at the
$3,000 cost for that, for a total of $6,000. (Hearing Trans. 80; 4-11).
11
to be needed twice a year, for a yearly cost of approximately
$54.00, totaling $108.00 for a two-year post-trial period.11
Given this, Dr. Bartholomew’s expert medical testimony, in
conjunction with the Court’s findings for a two-year post-trial
period, supports future medical expenses totaling $195,855.00.
Dr. Baum
Second, Plaintiff’s urologist, Dr. Neil Baum, testified that
he believed Plaintiff’s urinary and sexual dysfunction problems were
related
to
his
low-back
injury.12
He
further
testified
that
Plaintiff will need a urologist’s treatment at least twice a year
for the rest of his life.13
However, Dr. Bartholomew testified that
11
Regarding the urinalysis, while the Court noted that it may be
important, it also questioned the existence of medical testimony to support same.
There is no medical testimony to support this medical expense. (Hearing Trans.
45; 11-23).
THE COURT: MRI scans, I mean, that's -- I think, out of
perhaps most of these itemized issues here on future medical
costs, I didn't see the medical testimony here that supports
her frequency. I saw the need for it down the line, based upon the testimony
of some of the doctors, but not the frequency that she puts it at. The same
thing on the hepatic panel. The urinalysis, I did see that. Again, I think
that that's important. Now, a question about medical support
for that and the cost for that is another question.
The test for erectile dysfunction, or ED, the
NPT, the urodynamic testing, none of these were, according to the evidence,
performed prior to trial. (Hearing Trans. 45; 11-23).
12
Q. Would you agree that if Mr. Earls' urinary and sexual
dysfunction problems are not related to his low-back injury
then they should not be in a life care plan for him?
A. But I do feel that they are related.
(Trial Trans. 346; 14-17).
13
THE COURT: Can you give a reasonable expectation of how often would he
need to see you or someone in your field?
THE WITNESS: It is likely that he will have to return to see a urologist every
six months, or at least once a year for the rest of his life. He will also
have to have periodic examinations consisting of a serum testosterone level to
12
he estimates Plaintiff’s back injuries to improve once the IDET
procedure is performed.14
believes
Plaintiff’s
Thus, Dr. Baum’s testimony that he
lower
back
injuries
are
related
to
his
urological issues, taken in conjunction with Dr. Bartholomew’s
testimony that he expects Plaintiff’s injuries to improve after the
IDET procedure, provide medical testimony to support the Court’s
June 27, 2012 finding that Plaintiff will need to see a urologist
twice
a
year
for
the
next
two
years.15
Dr.
Baum’s
rate
is
approximately $135.00 per visit, with two visits each year for two
years total, Dr. Baum’s fees are $540.00.16
follow up to see if he needs supplemental testosterone. So I would say an
evaluation by a urologist minimum every six months. (emphasis added)(Trial
Trans. 313 12;21).
14
Dr. Baum also testified that currently Plaintiff does not display the
need for urinalysis:
THE COURT: Briefly, Counsel, because I think that's
the key thing he's gotten in.
One other question I had for you, Doctor,
before I forget. I heard mention of various tests, including
tests dealing with testosterone levels, glucose, etcetera.
Would tests for any type of sexually transmitted disease be
relevant in terms of your diagnosis here?
THE WITNESS: If he had symptoms of a urethral
discharge, if the urinalysis was abnormal, that's a screening
test for sexually transmitted diseases, I would think that
would be in order, but based on his symptomatology and the
negative urinalysis, no, I don't think so. (emphasis added) (Trial Trans. 316;
1-12).
15
THE COURT: Looking at it from the perspective of what we
had, at least in the past, by Dr. Baum, to trial, as well as
his testimony on the future in that regard, it would appear,
then, that a period of two years would be more probable than
not from the medical evidence that we have from Dr. Baum. (Hearing Trans. 78; 1317).
16
“At an assumed rate of $135, Dr. Baum charges for his services today,
. . . .” (Rec. Doc. No. 268 at 7).
13
Dr. Baum also testified about Plaintiff’s pharmaceutical needs.
He testified that Plaintiff will regularly need Vesicare to treat
his bladder condition for a “long, long time.”17 Each tablet is
approximately $3.00 per pill, for a total of $100.00 per month, for
a yearly total of $1,200.00 for Vesicare.
Per the Court’s two-year
post-trial
supports
time
span,
medical
evidence
a
finding
of
$2,400.00 for Vesicare for Plaintiff.
Furthermore, Dr. Baum testified about Plaintiff’s need for
Viagra to treat his erectile dysfunction.18 Dr. Baum did testify
that “[Plaintiff] will need some assistance in order to engage in
intimacy, and Viagra or one of the class of drugs like Viagra is -should be highly effective in this man.” (Trial Trans. 318; 6-9).
However, Dr. Baum did not definitely testify as to how often
17
Q: And is it going to be necessary for him to take a
medication called VESIcare for the rest of his life, in your
opinion?
A. VESIcare or a drug in that class. (Trial Trans. 317;9-12).
18
Q. And is it your opinion no matter whether these symptoms
gets excellent or not excellent, he still will be, as we sit
here today, likely to take the Viagra for the rest of his life?
A. It is more likely than not that he will need some
assistance in order to engage in intimacy, and Viagra or one of
the class of drugs like Viagra is -- should be highly effective
in this man.
Q. Would you agree that on a monthly basis $300 for these
medications would be a reasonable cost?
A. For both?
Q. For both?
A. Definitely. Yes. (Trial Trans. 318; 3-14).
14
Plaintiff will need to take Viagra or the attendant costs for such
medication.19 He just testified that the monthly cost will be about
$300.00 per month for both Vesicare and Viagra. (Id.).
Therefore,
subtracting the Vesicare estimate of $100.00 per month (Trial Trans.
317; 21-24) as estimated by Dr. Baum, from the $300.00 per month
medical estimate for both Vesicare and Viagra leaves $200.00 a
month, approximately, for Viagra.
Thusly, $200.00 a month for two
years post trial is $4,800.00 for said medication.
Given this, Dr. Baum’s medical testimony supported future
medical expenses of $7,740.00 for Plaintiff’s condition for the next
two years after trial.
Dr. Kaufman
Third, Dr. Joshua Kaufman testified regarding the area of
physical medicine and rehabilitation.
Dr. Kaufman testified that
Plaintiff will need a lumbosacral arthrosis (back brace), if
Plaintiff found it beneficial. But, at the time of trial Dr. Kaufman
had not ordered such.20
Yet, Dr. Bartholomew testified that a
19
Q. Would you agree that on a monthly basis $300 for these
medications [Vesicare and Viagra] would be a reasonable cost?
A. For both?
Q. For both?
A. Definitely. Yes. (Trial Trans. 318; 10-13).
20
Q. You're familiar with the life care plan created by
Carla Seyler, and you had just seen a copy of it. I believe
plaintiff's counsel just showed it to you.
In that life care plan it says that Mr. Earls will need a
new lumbosacral arthrosis every five years.
15
patient would need such a medical device after a lumbar fusion
procedure.21 (“They have to wear a brace for three months.”) (Trial
Trans. 237;13-21).
$45.00.
Dr.
A lumbosacral arthrosis costs approximately
Kaufman
also
reported
to
the
life care plan
specialist, Carla Seyler, that Plaintiff would need a new seating
system every three years.22
However, he did not give clear medical
testimony supporting his recommendation for same at trial.
He
merely referenced that her life care plan included such medical
device. Finally, Dr. Kaufman testified that Plaintiff will need
psychiatric
services,
but
not
for
the
rest
of
his
And a lumbosacral arthrosis is basically a back brace,
right?
A. That is correct. That is only true if he finds it
beneficial.
Q. Have you ever ordered one for him?
A. I have not. (Trial Trans. 379; 22-25; 380; 1-4).
Q. What would
successful, which he's
would be his future in
type of rehabilitation
21
be his -- assuming that the surgery is
looking at looming down the road, what
terms of trying to rehabilitate? What
would he be expected to go through?
A. He likely would require a good two or three months of
physical therapy after a fusion. It takes -- I tell patients
they are going to hate me for a month, wonder why they had it
done and swear I did something wrong. They have to wear a
brace for three months.(Trial Trans. 237;13-21).
22
Q. And you also said that he needed a new seating system,
whatever that is, every three years. You stated that, correct?
A. I believe that that would be beneficial for him.
Q. Have you ever ordered that?
A. Not for Mr. Earls. (Trial Trans. 380;5-9).
16
life.
Accordingly, the Court found that for a two-year post-trial period
$1,040.00 total would suffice for such services.23
Given this, Dr. Kaufman’s medical testimony supports future
medical expenses totaling $1,085.00, assuming Plaintiff would need
a lumbosacral arthrosis.
Dr. Meyer
Fourth,
specialist.
Dr.
Richard
Meyer
testified
as
an
orthopedic
He testified that Plaintiff will need the services of
an orthopedic specialist.24 However, Defendant contends Dr. Meyer’s
testimony
regarding
speculative.25
Plaintiff’s
need
for
an
orthopedist
is
Dr. Meyers’ testified that Plaintiff will need
23
THE COURT: In that regard, given the entire record from
the time of the injury to the time of trial, the Court finds
that there is record evidence for, perhaps, a need for seeing a
psychiatrist for a two-year period posttrial, which would then
equate to an award of $1,040, which is remittitur, then, off of
the $26,000 that the life care planner attributes for those
services. (Hearing Trans. 77; 5-11).
Q. You never told Ms. Seyler that the items that were listed
on her report that were attributed to you, that Mr. Earls would
need those for the next 50 years, did you?
A. I don't believe I specified that.
Q. Wouldn't you agree that no one can predict what Mr. Earls'
condition will be and what he will need three years from now,
much less 50 years from now?
A. I think that it's difficult to do so. (Trial Trans. 380; 10-19).
24
A: The patient may require additional studies, to include an MRI every
two to three years, as well as EMG studies. Follow-up visits will be required
as often as every four months, particularly if he requires the use of
medications. His medications at this time include Ultram and Skelaxin; although,
he is also being managed at times on Neurontin and Cymbalta. (Trial Trans. 730;
14-20).
25
Defendant incorrectly referenced trial testimony to argue that Dr.
Meyer’s testimony was speculative. Defendant cited Trial Trans. 461; 7-9, but
this transcript citation is to Carla Seyler’s testimony. (Rec. Doc. No. 269-1).
17
follow up visits three times a year.26 Such medical visits are
approximately $468.00 per year, totaling $936.00, which comports
with the Court’s June 27, 2012 ruling of $1,000.00 for future
orthopedic expenses.27
As such, Dr. Meyers’ testified to Plaintiff’s pharmaceutical
need for Ultram, which is approximately $850.00 per year for a twoyear post-trial total of $1,700.00.28 Additionally, he testified to
Plaintiff’s current usage of Neurontin and Cymbalta, which annually
average $1,381.00 and $2,507.00 respectively, and for a two-year
period, total $2,762.00 for Neurontin and $5,014.00 for Cymbalta.
Moreover, Dr. Meyer testified that when he initially observed
Plaintiff, he prescribed Flexeril, a muscle relaxant. Therefore, the
Court in its June 27, 2012 hearing found that Plaintiff may need
such medication within the next two years after trial.29
Such
26
A: The patient may require additional studies, to include an MRI every
two to three years, as well as EMG studies. Follow-up visits will be required
as often as every four months, particularly if he requires the use of
medications. His medications at this time include Ultram and Skelaxin; although,
he is also being managed at times on Neurontin and Cymbalta” (Trial Trans. 730;
14-20).
27
THE COURT: The medical evidence would show in this
particular case, to a reasonable medical probability, the
annual cost that she assessed for that at $468 per year; but, in my view,
based upon the medical evidence here, again, of two years, that would be a
thousand dollars. (Hearing Trans. 77; 24-25; Hearing Trans. 78;1-3).
28
Rec. Doc. No. 269-1 at 10.
29
Q. Have you prescribed any medication for Mr. Earls?
A. Yes. When he initially presented, he was given Flexeril,
which is a muscle relaxant. And we have given him
anti-inflammatory medications that have drugs such as Naprosyn
or Naproxen in them, but those -- those were the extent of the
medications that I prescribed. (Trial Trans. 738; 6-11).
18
muscle relaxers are estimated at $687.00 per year, for a total of
$1,374.00 for two years post trial.
The Court also ruled that the need for sleep aids and NSAID
medication were reasonable, given Plaintiff’s medical condition for
the next two years post trial. NSAID is approximately $390.00 a
year, and sleep aids are approximately $3,260.00, totaling $780.00
for two years of NSAID, and $6,520.00 for sleep aids.30
Dr.
Meyer’s
testimony
supports
future
medical
Given this,
expenses
of
$19,150.00.
Dr. Griffies
THE COURT: The muscle relaxer, I could see that that would
be a need in terms of the medication. In terms of all the
medications, I could see that there may be a need for all these
medications, but I didn't see medical evidence -- again, maybe
that will be pointed out to me -- that it would be needed at
the frequency that the life care planner gives. I don't know
where she's getting the frequency information from and, to some
extent, the cost information from. (Hearing Trans. 46; 15-22).
30
THE COURT: The muscle relaxer, I could see that that would
be a need in terms of the medication. In terms of all the
medications, I could see that there may be a need for all these
medications, but I didn't see medical evidence -- again, maybe
that will be pointed out to me -- that it would be needed at
the frequency that the life care planner gives. I don't know
where she's getting the frequency information from and, to some
extent, the cost information from. (Hearing Trans. 46; 15-22).
The Court did take issue with the life care planner’s estimate for sleep aid
medication:
THE COURT: Medication consistent with the physician visits
for one or two years, again, in my opinion, based upon the
medical evidence, at least -- not my opinion, but the medical
evidence here, would have it at a two-year cost of $5,000.
I believe there is medical record evidence for
all the other medications except, however, for the sleep aid at
the level that the life care planner suggests of 30 a month,
$3,200 a year, for a lifetime of $163,000. There is no medical
evidence to support that. (Hearing Trans. 85; 3-11).
19
Finally, Dr. Griffies testified as Plaintiff’s psychiatrist.
Dr.
Griffies
testified
that
Plaintiff’s
psychiatric
condition
warrants the need for antidepressants like Cymbalta.31 That expense
was accounted for through Dr. Meyer’s testimony.
Finally, Dr.
Griffies testified about Plaintiff’s need for future psychiatric
care. Accordingly, the Court in its June 27, 2012 hearing found
there was medical testimony supporting psychiatric services for an
annual cost $520.00.32 However, the psychiatric visit expense was
accounted for above, via Dr. Kaufman’s medical testimony.
Accordingly, expert medical testimony supports a finding of
$223,830.00 for Plaintiff’s future medical expenses.
31
A: The second thing that really worries me is -- really has
to do with the medical reports. If he indeed has -- if he's
got a chronic nerve damage to the nerves that go to his bladder
and to his erectile function, I think that for a young man,
that's going to be a very significant stressor for him, and
it's going to complicate his recovery from his depression. (Trial Trans. 503; 1116).
32
The life care provider, however, speaks of a
need to see a psychiatrist four times a year, for a lifetime
cost of $26,000, with an annual cost for psychiatric services of $520. The
medical evidence does not support the life care planner's proposal to the jury
here; and, at best, from my assessment of the psychiatrist's testimony, combined
with all other medical testimony, there is going to be a future need for
psychiatric care, but not to the extent that the life care planner, Ms. Seyler,
gives this jury.
In that regard, given the entire record from the time of the injury to the time
of trial, the Court finds that there is record evidence for, perhaps, a need for
seeing a psychiatrist for a two-year period posttrial, which would then equate
to an award of $1,040, which is remittitur, then, off of the $26,000 that the
life care planner attributes for those services. (Hearing Trans. 76; 20-25; 77;
1-11).
20
For the reasons articulated herein and during the June 27, 2012
hearing, IT IS ORDERED that the award of past medical expenses is
remitted from $40,000.00 to $20,179.10, and the award of future
medical expenses is remitted from $600,000.00 to $223,830.00.
IT IS FURTHER ORDERED that Plaintiff has fourteen (14) days to
accept judgment in the amount of $1,150,729.1033 based on remittitur
in this matter. In the event Plaintiff does not accept this amount
as remitted, new trial on the issue of damages will be granted.
Accordingly for the reasons articulated above, IT IS ORDERED
that Plaintiff’s Motion for Reconsideration be GRANTED in part and
DENIED in part and that the Court adopt neither the remittitur order
as proposed by Defendant or the judgment proposed by Plaintiff.
IT IS ORDERED that the remittitur detailed above be carried out.
New Orleans, Louisiana, this 27th day of September, 2012.
______________________________
UNITED STATES DISTRICT JUDGE
33
Past medical damages: $20,179.10
Future medical damages: $223,830.00
Past lost wages: $6,720.00
Loss of earning capacity: $200,000
Past and future pain and suffering: $700,000
21
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