Landry et al v. Farmland Mutual Ins. Company et al

Filing 117

RULING denying 100 Motion in Limine. Signed by Judge John W. deGravelles on 1/30/2020. (EDC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

NATALIE LANDRY, ET AL C.A. NO.: 3:18-CV-470-JWD-RLB

VERSUS
FARMLAND MUTUAL INSURANCE
COMPANY, ET AL
RULING
Before the Court is defendants Marion Hughes, Wilburn Milk Company, Inc.and
Farmland Mutual Insurance Company's ("Defendants") Motion in Umine to Exclude Evidence of
Plaintiff's Future Medical Costs for Failure to Mitigate Damages. (Doc. 100.) It is opposed by

plaintiffs Natalie Landry and Christopher Deville ("Plaintiffs"), (Doc. 105.) For the following
reasons, the motion is denied.

Background
This matter arises out of a motor vehicle collision which occurred on January 26,2017.
Plaintiff Natalie Landry ("Landry") claims damages for personal injuries allegedly sustained in
the accident. The extent of the injuries is one of the issues in the case.
Argument of the Parties
Defendants seek to exclude "evidence of [Landry's] future medical costs for battery
replacement procedures for her spinal cord stnnulator..." (Doc. 100 at 1 .) In their motion,
Defendants argue that the requested exclusion is warranted because Landry "has failed to
mitigate her damages..." (M) In their memorandum, Defendants add another reason, i.e. that
these damages are "speculative by their nature". (Doc. 100-1 at 2.)

Defendants failure to mitigate argument, distilled to Its essence, is as follows. One of
Landry's treating physicians recommended a spinal fusion but Landry chose instead to follow
the recommendation of another treating physician and have a spinal cord stimulator implanted to
address her lumbar pain. Because the stlmulator requires periodic battery replacements, the
future medical costs associated with the spinal cord stnnulator is significantly more expensive
than the spinal fusion surgery. "Defendants should not be responsible for her personal choice of
treatment that exceeds reasonable costs by approximately $1,300,000." (Doc. 100-1 at 4.)
Plaintiffs point the Court to the testimony ofLandry's treating doctor, Joseph Turnipseed,
M.D., to the effect that Landry was reluctant to have the fusion because of the long recovery
required, the use of rods and screws in her back, and that a good result from the fusion surgery
could not be guaranteed. (Doc. 105 at 2.) Instead, she chose the less invasive, albeit more
expensive, procedure suggested by Dr. Turnipseed. {Id,}
Defendants argue that the life care plan and economic calculations for future medical
expenses based on the use of the stimulator are "speculative by their nature" because they
"presume that Ms. Landry will undergo that precise treatment over her lifetime." (Doc. 100-1 at
2.) Plaintiffs respond by quoting Turnipseed's testimony that the stimulator gives good pain
relief and should do so for her lifetime. (Doc. 105 at 2.)
Analysis
Both Plaintiffs and Defendants point the Court to Hunt v. Long, 33395 (L. App. 2 Cir.

06/21/00) 763 So.2d 811, 815-16, for the proposition that, to establish that an injured party has
failed in the duty to mitigate his/her damages, a tortfeasor must "demonstrate (1) that the injured
party s conduct after the accident was unreasonable and (2) that the unreasonable conduct has the
consequence of aggravating the harm." (Doc. 11-1 at 2; Doc. 105 at 3.)

Defendants have failed to establish either prong of this test. The evidence presented
establishes that the spinal cord stimulator was recommended by one of Landry's treating doctors
and is apparently working effectively. Defendants have presented no evidence that this treatment
is not a recognized treatment. Rather, the only evidence offered on this point Is from Defendant's
medical examiner that the treatment does not address Landry's underlying pathology and this
doctor does not anticipate iong term success using the stimulator. This does not establish that the
use of the stimulator was unreasonable.

In addition. Defendants fail to address the second prong, that the stimulator was
"aggravating the harm." The most Defendants can offer is Landry's testimony that she had to
increase the level of stimulation from 10 to 20. This does not come ciose to meeting Defendants'
burden on the second prong.
On the issue of "speculation," the Court finds that Defendants' arguments are also
without merit. Plaintiffs have offered the testimony of a treating physician who has
recommended this procedure and Defendants have offered no evidence that the procedure is
harmful or that this it is not a recognized treatment modality for the condition from which
Landry suffers. The mere fact that Landry has chosen a more expensive course of treatment,
even on that is significantly more expensive, is not grounds for invoking the failure to mitigate
defense.
For these reasons, Defendants' motion is denied.

Signed in Baton Rouge, Louisiana, on January 30,2020.

JUDGETOrfN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA