Reed v USA

Filing 61

REASONS FOR JUDGMENT. Signed by Judge Robert R Summerhays on 3/5/2025. (crt,Craig-Fontenot, C)

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UNITED STATES DISTMCT COURT
WESTERN DISTMCT OF LOUISIANA
LAFAYETTE DIVISION
PAUL REED CIVIL ACTION NO. 6:20-CV-1354
VERSUS JUDGE ROBERT R. SUMMERHAYS
UNITED STATES OF AMEMCA MAGISTRATE JUDGE DAVID J. AYO
REASONS FOR JUDGMENT
This is an action brought under the Federal Tort Claims Act ("FTCA") against the United
States of America for personal injuries allegedly suffered by Plaintiff Paul Reed in an automobile
accident involving a federal employee, Amanda Campbell. The Court took the matter under
advisement following a bench trial. After considering the trial record, the arguments of counsel,
and the relevant authorities, the Court now makes the following findings of fact and conclusions
of law.
I.

THE TRIAL RECORD AND THE COURT'S FINDINGS OF FACT
A. StipulationsBehveen the Parties.
The parties made the following stipulations prior to trial. A motor vehicle collision
occurred on August 14, 2017 between two vehicles in the parking lot of an apartment complex
located at 206 William Circle in Opelousas, Louisiana ("the collision"). One vehicle was being
operated by Amanda Campbell, and the other was being operated by Donald Berry. At the time of
the collision, Campbell was employed by the United States Postal Semce ("USPS") as' a mail
carrier, was working in the course and scope of that employment, and was operating a USPS longlife vehicle ("LLV") to deliver mail. Reed was a passenger in the vehicle being operated by Berry.
Reed does not assert a claim for lost wages or loss of future earnings.

ECF No. 32.

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B. Testimony Regarding How the Collision Occurred and Fault.

The parties agree that on August 14, 2017, an LLV operated by Campbell collided with a
sedan operated by Berry in the parking lot of an apartment complex. Reed alleges that, as Berry
was backing his automobile into a parking spot, Campbell was backing the LLV toward the exit
of the parking lot. The vehicles' paths intersected, and Campbell backed the LLV into the front
passenger door of Berry's automobile. Reed was sitting in the front passenger seat of the
automobile, where the LLV made contact. Berry's automobile incurred approximately $600 in
property damage, consisting only of damage to the front passenger door, which needed to be
replaced. Photos of Berry's automobile from shortly after the collision show one small dent and
one large deformation in the front passenger door. Trial Exhibit ("Tr. Exh.") J2 at 7.
1. Deb ra Bourgeois
Reed was a resident of the apartment complex where the collision occurred. Debra
Bourgeois lived in the apartment below Reed's and witnessed the collision. On the day of the
accident. Bourgeois was waiting for Campbell to arrive to deliver mail to the complex's centralized
mailboxes. Bourgeois wanted to speak to Campbell about spiders Bourgeois had seen breeding
under the mailboxes.
Bourgeois testified that Campbell arrived and delivered the mail, and the two had a "curt"
conversation while Campbell placed the mail into the boxes. The mailboxes are adjacent to the
parking lot, and once Campbell entered the parking lot, she drove straight through the lot and
stopped the LLV near the mailboxes, rather than parking in a parking spot. Once Campbell had
completed her mail deliveries, she got back into the LLV and reversed to leave the parking lot.
Bourgeois testified that Campbell was facing forward while backing the LLV and accelerated

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slightly. Bourgeois saw that Campbell was in danger of colliding with Berry's vehicle and
attempted to warn Campbell, to no avail. Bourgeois witnessed the two vehicles collide.
2. Donald Berry
Berry testified that as he turned his automobile from the access road into the parking lot,
he noticed that Campbell was standing outside the LLV and not looking toward Berry's vehicle.
Immediately after Berry entered the parking lot, he turned his automobile to his left so that he
could reverse into a parking spot on his right. Berry turned to face the rear of the automobile so
that he could safely back into the spot and was not facing the LLV. At roughly the same time that
Berry began to back the automobile into the parking spot, Campbell got into the LLV and began
to reverse out of the parking lot.2 Berry heard increased engine noise from the LLV, looked in the
direction of the noise, and saw the LLV approaching. Berry activated his vehicle's horn to try to
warn Campbell, and then the vehicles collided. Berry testified that the LLV stmck the front
passenger door of his automobile, which was unable to be opened and needed to be replaced.
Berry's property damage was approximately $600. The sedan's airbags did not deploy, and the
LLV sustained no visible damage.
3. Paul Reed
Reed echoed Berry's testimony regarding how the collision occurred. Reed was sitting in
the front passenger seat of Berry's automobile. As the automobile entered the parking lot,
Campbell was standing outside the LLV. As Berry turned the automobile to the left and began to
back into a parking spot, Campbell got into the LLV and began to back out of the parking lot.
When Berry began backing his automobile into the spot, the LLV was parked approximately fifty

2 Given Berry's testimony that he was facing the rear of his vehicle, this appears to be speculation based on
how events unfolded.

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(50) feet away from Berry's vehicle.3 Reed did not see the LLV begin to reverse, but heard sudden
engine noise immediately prior to the collision, causing him to infer that the LLV had been
accelerating. Bourgeois yelled to alert Campbell to the danger of a collision. Reed testified that
after the collision, Campbell apologized and admitted she had been distracted and was trying to
leave the complex quickly because she had had an argument with Bourgeois.

Campbell did not testify. An USPS accident report admitted into evidence indicated that
Campbell "began to back up and did not see the driver of the other vehicle behind her until she
had hit it" and "[t]he bumper of the LLV struck the right front and rear passenger door" of Berry's
automobile. Tr. Exh. J4.

Based on the record, the Court finds the following facts with respect to the collision:

(1) Campbell entered the parking lot and drove the LLV straight through the lot, not
turning, until the vehicle was adjacent to the mailboxes.

(2) While Campbell was depositing mail and/or speaking with Bourgeois, Berry's
automobile entered the parking lot, turned to the lefit^ and began to reverse into a
parking spot.
(3) While Berry was executing these maneuvers, Campbell entered the LLV and began to
reverse straight out of the parking lot. Berry and Bourgeois attempted to warn Campbell
about the presence of the sedan.
(4) The rear bumper of the LLV collided with the passenger side of Berry's automobile,
causing mild to moderate damage valued at approximately $600.
(5) Berry had time to use his car horn to warn Campbell but did not make any evasive
maneuvers to avoid the collision.

3 Berry and Reed testified that the distance from Berry's automobile to the LLV was approximately the
length of the courtroom, which is approximately fifty feet.

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(6) Reed was a passenger in Berry's automobile and was sitting on the side of the vehicle
that was involved in the collision.
C. Reed9s Iniuries and Condition Prior to the Collision.

Reed testified that he had multiple injuries prior to the collision for which he had been
treated, and chronic pain for which he was being treated at the time of the 2017 accident. In
approximately February of 2004, Reed was in a vehicle that was rear-ended by a tractor-trailer.
Reed suffered injuries to his neck, back, and right knee. Treatment for these injuries included
surgery on Reed's lower back and right knee, injections in his neck^ and physical therapy or
chiropractic therapy. Reed was treated by Dr. George Williams, among others, and the treatments
ameliorated his symptoms.
After Reed underwent neck and back surgery in 2004, he applied for social security
disability assistance on the grounds that chronic neck pain rendered him unable to work. The
application was denied.
In approximately June of 2012, Reed was involved in another motor vehicle accident. He
suffered whiplash in his neck and a flaring of the back pain from the previous accident. Reed rated
this pain severity at seven to eight out of ten. Reed was treated with chiropractic therapy, which
made his symptoms manageable.

In 2013, Reed appealed the denial of his 2004 social security disability application. Reed
asserted that severe neck and back pain, including stiffness and radiating pain, precluded him from
working or performing activities of daily life.
In approximately January of 2016, Reed was involved in a third motor vehicle accident.
As with the 2012 accident, Reed experienced whiplash in his neck and pain in his back. Reed rated
his pain severity at an eight out often. He was again treated with chiropractic therapy, which made

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his symptoms manageable. The chiropractor opined, however, that Reed would suffer long-term
symptoms due to the January 2016 collision.
Starting in 2016, Reed's primary care physician. Dr. Derek Metoyer, began prescribing
Reed daily opioid medication to treat his chronic neck and back pains. Reed was complying with
this regimen when the collision occurred.

In 2017, shortly before the collision, Reed again applied for social security disability
assistance. This application was prompted by a sudden onset of pain in Reed's stomach while he
was driving that lasted several hours. Reed believed the pain might have indicated a hemia. When
he sought medical care for the pain, the provider advised him to stop driving altogether due to the
risk of future episodes. Reed's 2017 disability application sought assistance on the grounds of
stomach pain, neck pain, and back pain that rendered him unable to work.
D. Evidence on Damages, IVIedical Treatment, and Expenses.

1. Paul Reed
Reed testified at trial that he did not lose consciousness in the collision and declined to take
an offered ambulance to a nearby emergency department. Reed went to the emergency department
himself but left after several hours without being seen. The day after the collision. Reed felt stiff
and had sharp pains in his right arm and right hip, some of which were present prior to the collision.
Generally, Reed testified that the neck symptoms and back symptoms that were present
prior to the collision got worse afterward. Specifically, his neck would become stiff, and he

experienced pain radiating from his neck down his right arm and from his hip down his right leg.
Reed also experienced weakness in his right leg, which was not present prior to the collision.

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Reed did not seek treatment for approximately two weeks after the accident because he
was waiting for his counsel to arrange evaluations. Reed first saw Dr. Williams, the orthopedic
surgeon who performed Reed's 2005 knee surgery and his 2007 back surgery.
Over the next approximately eighteen months. Reed underwent treatment with numerous
providers, including Dr. Williams, Dr. Metoyer, and Dr. Michael Haydel. These three physicians
treated Reed both before and after the collision, and had evaluated his neck and back beforehand.
Reed's treating physicians first recommended physical therapy and/or chiropractic therapy, which
provided some relief. When those treatments did not resolve the symptoms, they recommended
injections in Reed's neck and back. These also provided some, but not total, relief. Due to the lack
of total resolution, Reed's physicians recommended a cemcal fusion, which farther reduced his
neck pain. To address Reed's continued lower back pain, Dr. Williams recommended implantation
of a spinal cord stimulator. The stimulator reduced Reed's lower back pain, but did not address the
weakness in his right leg. To address the leg weakness, Dr. Williams recommended injections in
his right sacroiliac hip joint. When injections did not resolve the weakness, Dr. Williams
recommended and performed a hip joint fusion. Reed testified that the hip fusion resolved his leg
weakness. Despite all treatments, however, Reed testified that his pain symptoms remain more
severe than they were prior to the collision.
As to general damages. Reed testified that he is distraught that the injuries, pains, and
treatments he attributes to the collision have cost him time with his children.
1. Dr. Williams
Dr. Williams testified by deposition as one of Reed's treating physicians. Dr. Williams

treated Reed &om approximately 2004 to 2007 after Reed's 2004 injury, including performing
neck injections and lower back surgery. Tr. Exh. J7 at 10-13, 29, 32-33.

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Reed next saw Dr. Williams on August 31, 2017 after the subject collision. Id. at 9, 32-33.
Reed complained of pain in his neck and back, as well as pain radiating down his right arm and
both legs, and exhibited decreased range of motion. Id. at 9-10. Dr. Williams ordered magnetic
resonance imaging (MRI) of Reed's neck and low back in September of 2017, and testified that
those images showed "disc protrusion at C4-5 and foraminal narrowing at 5-6" in Reed's neck,
and "disc protmsion or disc bulge at L3-4 [and] L4-5" in his low back. M at 16-17. Dr. Williams
recommended that Reed increase his physical activity to lessen his pain symptoms. Id. at 15-16.
Dr. Williams opined that Reed's complaints and worsening pain in his neck and back were more
likely than not caused by the collision. Id. at 11-12. He further opined that Reed's prior injuries
made him more prone to suffer acute injury in the subject collision. Id. at 13.
After the MRI, Dr. Williams ordered discograms on Reed's neck and low back to get
additional information about potential pain-causing injuries. After reviewing the discogram
results. Dr. Williams concluded that Reed required a spinal fusion in his neck, specifically at levels
C4-5 and C5-6, but not in his low back. Id. at 18-19, 24. Dr. Williams related the need for this
fusion to the subject collision in light of Reed's complaints of neck pain, and did not believe that
Reed was a candidate for a cemcal fusion prior to the collision. Id. at 19. Dr. Williams testified
that Reed is likely to need additional adjacent fusion surgeries in the future, including with
associated evaluations, medications, procedures, both before and after those future surgeries. Id.
at 19-22.

While Dr. Williams initially did not believe that the subject collision had created a need
for further lumbar surgery. Reed's continued complaints of low back pain prompted Dr. Williams
to recommend that Reed see Dr. Haydel, a pain management specialist, to evaluate whether a
spinal cord stimulator might be appropriate. Id. at 25-26. Dr. Haydel performed additional

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discograms in January of 2019, and thereafter installed the stimulator. Id. at 26. Dr. Williams
testified that, prior to the accident, Reed was not a candidate for a spinal stimulator because his
pain was being adequately managed with medication. Id. at 28.
Dr. Williams testified that Reed continued to complain about pain and weakness in his right
hip and leg after the spinal stimulator was installed, which prompted further investigation. Id. at
28-29. Dr. Williams determined Reed's right hip joint was likely the source of pain and
recommended treatment. Id. That evaluation and treatment culminated in Dr. Williams
recommending and performing injections and a hip fusion, which Reed testified largely resolved
his leg pain and weakness. Id. Dr. Williams related this hip fusion also to the subject collision,
given the chronology of treatment and complaints. Id.
Dr. Williams acknowledged that Reed was having issues related to his neck and back prior
to the subject collision, and that Reed's post-collision imaging did not suggest that Reed had
"suffered from a traumatic or acute event." Id. at 24, 33-34. Dr. Williams was unaware that Reed

was injured in collisions in 2012 or 2016, and of what treatments Reed received for them. Id. at
34-37. Dr. Williams was also unaware of Reed's applications for social security disability prior to
the collision. Id. at 37-38.
2. Dr. Metoyer

Dr. Metoyer, a family physician, testified by deposition as one of Reed's treating
physicians. Reed began seeing Dr. Metoyer in March of 2016. Tr. Exh. J6 at 9-10. In March and
October of 2016, Reed complained to Dr. Metoyer of chronic back pain, as well as neck pain and
pain radiating down his arms and legs. Id. at 10-12. Reed informed Dr. Metoyer about his 2005
right knee surgery and 2007 lumbar surgery but had no major complaints regarding his knee or
elbows in 2016. Id. at 11-12. Dr. Metoyer prescribed Reed daily opiate pain medication for his

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chronic neck and back pain, which was still in place at the time of the subject collision. Id. at 2734. Dr. Metoyer was unaware that Reed was injured in collisions in 2012 or 2016, and of what
treatments Reed received for them. Id. at 40-42. Dr. Metoyer was also unaware of Reed's

applications for social security disability. Id. at 42.
Reed sought evaluation by Dr. Metoyer on September 11,2017 due to the subject collision.
Id. at 13. At that point, Reed complained of pain in his neck, low back, shoulders, elbows, hips,
and knees. Id. at 14-15. He also complained of radiating pain, similar to his 2016 complaints. Id.
at 14-15, 32. Reed exhibited limited range of motion in his neck, back, and shoulders. Id. at 14.
Dr. Metoyer prescribed anti-inflammatory medication, continued opiate medication to address
pain, and physical therapy, noting that Dr. Williams had already scheduled imaging studies of
Reed's spine. Id. at 17-18. Dr. Metoyer later increased the prescribed medication regimen after
Reed's reported pain increased. Id. at 18. As of Dr. Metoyer's deposition. Reed was still prescribed
daily pain, inflammatory, and muscle relaxing mediation, and Dr. Metoyer saw no indication that
Reed did not comply with the treatments prescribed. Id. at 34.
Dr. Metoyer was aware of Dr. Williams5 treatments and recommendations, as they were

treating Reed simultaneously, though Dr. Williams did not consult with Dr. Metoyer about surgical
treatments. Id. at 18-19. Prior to the collision, no physician sought Dr. Metoyer's clearance to
perform a spinal fusion or hip fusion, or to install a spinal cord stimulator, as would be standard
practice. Id. at 21-23.

Dr. Metoyer acknowledged that over the course of approximately six years of care since
2016, Reed's complaints had remained consistent, even through his neck fusion, hip fusion, and
spinal stimulator surgeries, and Dr. Metoyer's recommended treatments for Reed's pain had not
changed. Id. Dr. Metoyer noted on July 26, 2021 that Reed had likely reached maximum medical

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improvement absent further surgical treatment, but would likely suffer from aggravated symptoms
for the rest of his life. Id. at 24-25.
Dr. Metoyer opined that Reed's prior injuries more likely than not made him more prone
to being injured in a subsequent collision. Id. at 17. Dr. Metoyer also opined that Reed's complaints
of pain in September 2017 were more likely than not caused by the collision, as were the
exacerbation of his prior neck, back, radicular pain, leg, and elbow symptoms. Id. at 14-16. Dr.
Metoyer testified that all of the treatments that are relevant here were done to address Reed's
injuries arising from the collision, and none of them were unreasonable.
3. Dr. Haydel
Dr. Hay del, an inter^entional pain specialist, testified by deposition as one of Reed's
treating physicians. Reed was referred to Dr. Hay del by Dr. Williams for evaluation of Reed's
lumbar symptoms via discogram. Tr. Exh. J8 at 9,16. Reed first saw Dr. Hay del on December 19,
2018. Id. at 9. At that time, Dr. Hay del was aware that Reed suffered from chronic low back pain.
Id. at 11. The notes Dr. Hay del reviewed of the September 2017 MRI report indicated "mild L3-4
and 4-5 amiular bulging and L5-S1 post-surgical changes as a result of an anterior fusion." Id. at
10-11. Dr. Hay del ?s examination focused on Reed's lower extremities, and his neurological
reflexes "were symmetrical and normal." Id. at 16-17. Dr. Hay del performed the discogram
recommended by Dr. Williams. Id. at 17-18. While the discogram did not reveal a physical basis
for Reed's symptoms in the L3-4 or L4-5 areas. Reed continued to complain of low back pain. Id.
at 17-21.

In April of 2019, Dr. Williams again referred Reed to Dr. Hay del, this time for an
evaluation of whether a spinal cord stimulator would address Reed's low back and leg symptoms.
Id. at 22. Dr. Haydel determined that Reed was a candidate for a spinal stimulator trial. Id. at 22-

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23. Because the trial was successful, Dr. Hay del recommended and performed an installation of a
spinal cord stimulator implant. Id. at 24-25. Such an implant requires its battery to be changed
every five to seven years, and each change requires a separate surgical procedure. Id. at 26-27.

Dr. Hay del agreed with Drs. Williams and Metoyer that Reed's prior injuries and chronic
pain made him more susceptible to suffer injury in a subsequent collision, and that he will require
treatment into the future arising from the 2017 accident. Id. at 11-15, 31-32. Dr. Haydel also agreed
that Reed's complaints after the 2017 collision—including aggravation of symptoms—were more
likely than not caused by the collision, and thus that all treatments for which Reed seeks
compensation were related to the collision. Id. at 11-15. Dr. Hay del acknowledged that Reed had
been suffering from chronic lumbar pain prior to the subject collision. Id. at 33-35. Dr. Hay del was
unaware that Reed was injured in collisions in 2012 or 2016, and of what treatments Reed received
for them. Id. at 37-38. Dr. Haydel was also unaware of Reed's applications for social security
disability. Id. at 3 8-39.
4. Dr. Romero

Dr. Nell Romero, an orthopedic spine surgeon, testified live at trial. Dr. Romero conducted
an independent medical examination of Reed on December 31,2021, on behalf of the government.
In short, after examining Reed and reviewing the records he was provided. Dr. Romero concluded
that the vast majority of Reed's pain symptoms were not related to the subject collision, except for
Reed's subjective complaints of aggravated pain which resolved with physical therapy. Therefore,
with the exception of appropriate therapy provided at Opelousas General Hospital, Dr. Romero
opined that none of the treatments for which Reed seeks compensation were necessitated by the
collision.

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Specifically, Dr. Romero pointed to the fact that Reed complained of neck and back pain
consistently before and after the collision, at a severity that did not change. Reed was undergoing
treatment for that pain with Dr. Metoyer at the time of the collision. This persuaded Dr. Romero
that Reed's symptoms were caused by chronic conditions and injuries from prior collisions rather
than the subject accident. Dr. Romero further opined that the images of Reed's spine taken after

the subject collision did not show any objective indication of injury that would cause the type of
symptoms of which Reed complained, and did not show significant change from 2012 images.
Therefore, Dr. Romero concluded that the only injury or complaint caused by the collision was a
subjective aggravation of Reed's neck and back pain, which was ameliorated with physical
therapy. While Reed alleged that his hip pain first arose after the accident and was resolved by the
hip fusion, and that the spinal cord stimulator provided substantial relief, Dr. Romero testified that
those complaints first arose more than two years after the collision, so could not be tied to the
collision by a preponderance of the evidence.
Dr. Romero testified that his opinion was bolstered by the fact that Reed acknowledged he
had not worked since May of 2017 due to excessive neck and back pain. Reed also received steady
pain management through medication since 2016, with little or no change in symptoms before or
after the collision, suggesting that the collision had only a temporary and subjective aggravating
effect. In essence. Dr. Romero testified that most of the treatments Reed received after the accident
were equally justified prior to the subject collision, and other treatments were for conditions that
arose too long after the collision to be definitively related to it.

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II.

CONCLUSIONS OF LAW
Reed's claims are brought pursuant to the FTCA, 28 U.S.C. §§ 2671-80, which "provides

broadly that the United States will accept liability for common torts committed by its agents to the
same extent and in the same manner as liability would attach to a private individual in similar
circumstances." Williamson v. U.S. Dept. of Agriculture, 815 F.2d 368, 374 (5th Cir. 1987).

Jurisdiction is granted by 28 U.S.C. § 1346(b)(l). The substantive law of Louisiana applies to the
claims brought in this suit. Cleveland ex rel. Cleveland v. U.S., 457 F.3d 397, 403 (5th Cir. 2006);

seealso2SV.S.C.§ 1346(b)(l).
"Louisiana Civil Code Article 2315(A) provides that "[ejvery act whatever of man that
causes damage to another obliges him by whose fault it happened to repair it." The duty-risk
analysis assists in the determination as to "fault" and requires the establishment of the following
elements: (1) whether the defendant had a duty to conform his conduct to a specific standard (the
duty element); (2) whether the defendant's conduct failed to conform to the appropriate standard
(the breach element); (3) whether the defendant's substandard conduct was a cause-in-fact of the
plaintiffs injuries (the cause-in-fact element); (4) whether the defendant's substandard conduct

was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) whether the
plaintiff was damaged (the damages element)." Cobb v. Delta Exports, Inc., 2005-509 (La. App.

3 Cir. 12/30/05), 918 So. 2d 1080, 1088, writ denied, 2006-0225 (La. 4/24/06), 926 So. 2d 551
(internal citations omitted). "In an action to recover damages for injuries allegedly caused by
another's negligence, the plaintiff has the burden of proving negligence on the part of the defendant
by a preponderance of the evidence. Proof is sufficient to constitute a preponderance when the
entirety of the evidence, both direct and circumstantial, shows the fact sought to be proved is more

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probable than not." Hanks v. Entergy Corp., 2006-477 (La. 12/18/06), 944 So. 2d 564, 578
(internal citations omitted).
More than one party may be at fault for the damages sustained in a motor vehicle accident,
which is reflected in Louisiana's comparative negligence scheme. Fontenot v. Patterson Ins.,

2009-0669 (La. 10/20/09), 23 So.3d 259, 267 (citing La. Civ. Code art. 2323). In deciding which
parties are responsible, a duty-risk analysis is used in which the plaintiff must prove that: (1) the
conduct in question was the cause-in-fact of the resulting harm; (2) the defendants owed a duty to

the plaintiff, which the defendants breached; and (3) the risk of harm was within the scope of
protection afforded by the duty breached. Id. The allocation of fault between comparatively
negligent parties is a finding of fact. Sims v. State Farm Auto. Ins. Co., 98-1613 (La.3/2/99), 731
So.2d 197, 199. In apportioning fault, the fact finder shall consider both the nature of the conduct
of each party at fault and the extent of the causal relationship between the conduct and the damages
claimed. Gibson v. State Through Dept. of Transp. and Development, 95-1418 (LaApp. 1st

Cir.4/4/96), 674 So.2d 996, 1005, writs denied, 96-1862, 96-1895, 96-1902 (La. 10/25/96), 681
So.2d 373-74 (citing Campbell v. Louisiana Dept. of Transp. and Development, 94-1052
(La. 1/17/95), 648 So.2d 898, 902). In assessing the nature of the conduct of the parties, various
factors may influence the degree of fault assigned by the fact finder, including: (1) whether the
conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a risk

was created by the conduct; (3) the significance of what was sought by the conduct; (4) the
capacities of the actor, whether superior or inferior, and (5) any extenuatmg circumstances which
might require the actor to proceed in haste, without proper thought..." Schexnayder v. Bridges,

2015-0786 (La. App. 1 Cir. 2/26/16), 190 So. 3d 764, 773 (citing Watson v. State Farm Fire and
Cas. Ins. Co., 469 So.2d 967, 974 (La. 1985)).

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A motorist has a duty to use reasonable care in operating a vehicle. Sinitiere v. Lavergne,
391 So. 2d 821, 826 (La. 1980). This includes the duty to "maintain a careful lookout, observe any
obstructions present, and exercise care to avoid them." Dupree v. City ofNe^ Orleans, 1999-3651

(La. 8/31/00), 765 So. 2d 1002, 1015 (citing Sinitiere, 391 So. 2d at 826). A motorist does not
have a duty to observe every possible hazard, but "to see that which a reasonably prudent observer
would have seen under similar circumstances." Fontenot v. Patters on Ins., 2009-0669

(La. 10/20/09), 23 So.3d 259, 270 (citing Fernandezv. General Motors Corp. ,491 So. 2d 633,636
(La. 1986)). "If a motorist fails to see what he should have seen, the law charges him with having
seen what he should have seen, and the court examines his subsequent conduct on the premise that
he did see what he should have seen." Id. (quoting Fernandez, 491 So. 2d at 636-37). "A driver
has a duty to drive defensively from the time the driver witnesses negligent operation of another
vehicle or notices other hazards posing the potential for resulting damage," and this obligation
"may include the duty to slow down or otherwise avoid risks posed" by other vehicles. Edwards
v. Horstman, 96-1403 (La. 2/25/97), 687 So. 2d 1007,1011.
The government argues that La. Stat. Ann. § 32:281 (A)—part of the Louisiana Highway
Regulatory Act—imposes a duty on reversing drivers, which Berry violated. However, it is not
clear that that statute applies in the context of a parking lot. For example, in Collins v. Creighton,
Louisiana's Second Circuit found that "the reasonably expected speed and movement of vehicles
in a parking lot and the utility of closely configuring the parking spaces" impose a lower duty on
drivers in a parking lot than the duty on drivers on a highway, and applied the general duty-risk
analysis to determine fault in a parking lot collision. 53,522 (La. App. 2 Cir. 9/23/20), 303 So. 3d

1114, 1121 (quoting Laurence v. Groan, 42,842 (La. App. 2 Cir. 1/9/08), 973 So. 2d 959,962).
The jurisprudence of Louisiana's Third Circuit similarly holds that the Highway Regulatory Act

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is not controlling in a parking lot, and "a motorist traveling in a parking lot is required to exercise
a duty of 'due caution/" Duhon v. State Farm Mut. Auto. Ins. Co., 2012-41 (La. App. 3 Cir.

5/2/12), 94 So. 3d 113, 116 (quoting Chenevertv. Wal-Mart Stores, Inc., 02-1075, p. 4 (LaApp.
3 Cir. 2/5/03), 838 So.2d 922, 924). On the other hand, in Turner v. New Orleans Pub. Serv. Inc.,

the Louisiana Supreme Court cited section 32:281 (A) for the proposition that "[bjacking a tmck
without knowing whether it can safely be done is grossly negligent" in a case involving a tmck
backing into a pedestrian inside a warehouse. 476 So. 2d 800, 802 (La. 1985). Whether the
applicable duty arises under section 32:281 (A) or the general duties of a motorist, however, both
Berry and Campbell were backing their vehicles when the collision occurred, so they were subject
to the same duties. Accordingly, fault must be apportioned between Campbell and Berry.
In a personal injury suit, a plaintiff bears the burden of proving a causal relationship
between the injury sustained and the accident that caused the injury. Maranto v. Goodyear Tire &
Rubber Co., 650 So.2d 757, 759 (La. 1995). Under Louisiana law, "[a] claimant's disability is
presumed to have resulted from an accident, if before the accident the injured person was in good
health, but commencing with the accident the symptoms of the disabling condition appear and
continuously manifest themselves afterwards, providing that the medical evidence shows there to
be a reasonable possibility of causal connection between the accident and the disabling condition."
Id. at 761 (quoting Housley v. Cerise, 579 So.2d 973 (La. 1991); see also Fair v. Alien, 669 F.3d
601, 605 (5th Cir. 2012)). "A tortfeasor is required to pay for the medical treatment of the victim,
and even for overtreatment or unnecessary treatment, unless such treatment was incurred by the

victim in bad faith." Ezzell v. Miranne, 84 So.3d 641, 654 (La. 5 Cir. 2011); see also Vines v.

Wood, 785 So.2d 126, 131 (La. 2d Cir. 2001); Antippas v. Nola Hotel Group, LLC, 265 So.3d
1212, 1218 (La. App. 4 Cir. 2019); Menardv. Lafayette Ins. Co., 31 So.3d 996, 1006 (La. 2010).

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Nevertheless, "[a]n injured party has a duty to take reasonable steps to mitigate his damages. Aisole

v. Dean, 574 So.2d 1248 (La.1991); Brittv. City ofShreveport, 45,513 (La.App.2d Cir.11/03/10),
55 So.3d 76; Fletcher v. Simmons, 37,758 (La.App.2d Cir. 10/29/03), 859 So.2d 292;' Young v.

Marsh, 49,496 (La. App. 2 Cir. 11/19/14), 153 So. 3d 1245,1256.
Under Louisiana law, a tortfeasor must take the injured person as he finds him. The
tortfeasor is responsible for all the natural and probable consequences of his wrong, even though
they are more serious or harmful by reason of a pre-existing condition or weakness of the injured
person. If the accident results in aggravation of a previous condition of disability or of pain of the
injured person, the tortfeasor is liable both for the aggravation of the pre-existing condition and
for any new injuries resulting from the accident. However, a plaintiff must prove by a
preponderance of the evidence (1) the prior existing condition, and (2) the extent of the
aggravation. 18 La. Civ. L. Treatise, Civil Jury Instructions § 18:10 (3d ed.); Lasha v. Olin Corp.,

625 So.2d 1002, 1005-06 (La. 1993).
Louisiana law permits awards for future medical expenses, but they "must be established
with some degree of certainty." Duncan v. Kansas City Southern Railway Co., 773 So.2d 670, 685
(La. 2000). "The proper standard for determining whether a plaintiff is entitled to future medical
expenses is proof by a preponderance of the evidence the future medical expense will be medically
necessary." Menardv. Lafayette Ins. Co., 31 So.3d 996, 1006 (La. 2010).
General damages, which cannot be "fixed with pecuniary exactitude" take into account
mental and/or physical pain and suffering, inconvenience, the loss of intellectual gratification or
physical enjoyment, or other losses oflifestyle which cannot be definitely measured in monetary
terms, both in the past and to be anticipated in the future. Duncan, 773 So.2d at 682. "Vast
discretion is accorded the trier of fact in fixing general damage awards." Id. at 682. 'The factors

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to be considered in assessing quantum of damages for pain and suffering are severity and duration.
More specifically, the nature, relative severity, and extent of bodily injuries are qualitative factors
that must first be considered by the trier of fact in awarding general damages. The duration of a
plaintiffs injury symptoms and the duration of treatment are quantitative factors that must also be
taken into account." Young v. Marsh, 49,496 (La. App. 2 Cir. 11/19/14), 153 So. 3d 1245, 1252
(citing LeBlanc v. Stevenson, 00-0157 (La. 10/17/00), 770 So.2d 766; Thongsavanh v.

Schexnayder, 09-1462 (LaApp. 1st Cir.05/07/10), 40 So.3d 989, writ denied, 10-1295
(La.09/24/10), 45 So.3d 1074)).
III.
APPLICATION OF FACTUAL FINDINGS TO THE LAW
A. Liability and Allocation of Fault.
The record does not include evidence that Reed contributed to the collision or any injury
resulting therefrom. Accordingly, Reed was not at fault for the August 2017 collision. The actions
of Berry and Campbell each contributed to the collision, and fault must be apportioned between
them.

The record reflects that the parking lot where the collision occurred was largely empty at
the time. CampbelFs LLV entered the parking lot, drove fonvard, and stopped adjacent to the
centralized mailboxes. While Campbell was standing outside the LLV delivering mail. Berry
\>

entered the parking lot, almost immediately turned to the left, and began backing into his intended
parking spot. During this backing maneuver, and while Berry's automobile was perpendicular to
the LLV, the LLV reversed into the passenger side of Berry's vehicle. This undisputed series of
events suggests two likely scenarios. One is that Berry's automobile was either stopped or traveling
extremely slowly, such that while Berry was backing up, Campbell had time to enter the LLV,
prepare to reverse, and travel approximately fifty feet at a speed appropriate to the circumstances,

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all without noticing Berry's automobile. In this scenario., Berry would have had ample time to
notice the LLV's approach and avoid the collision, or at least to attempt to avoid it. The other
possibility is that Campbell reversed with such speed that avoiding the collision was rendered
difficult or impossible for Berry.
Neither possibility is foreclosed by the evidence in the record, but the latter is more
consistent with the trial testimony. Bourgeois testified that Campbell reversed under slight
acceleration, but did not characterize the LLVs speed as inappropriate for a parking lot. Berry
testified that he heard the LLV's engine noise, then saw the reversing LLV and engaged his car
horn. Reed testified that he heard engine noise from the LLV and then saw it shortly before the
impact. Campbell admitted that she was distracted, suggesting that she did not properly use her
mirrors to look behind her as she was backing out of the lot. However, there was no testimony
regarding whether Berry had time to avoid the LLV once he knew it was backing up. While Berry
had a continuing duty to drive defensively once he observed the danger, the trial testimony does
not prove that he failed to do so.
A review of similar cases is instructive on the appropriate apportionment of fault. Miller v.
State Farm Mut. Auto Ins. Co. involved a collision between two reversing vehicles in a parking

lot. 2005-1032 (La. App. 3 Cir. 3/1/06), 923 So. 2d 886. In that case, the plaintiff testified that her
vehicle was parked in a spot between two other vehicles which partially blocked her lateral views.
Id. at 888. The plaintiff backed partly out of the spot to get a clear view ofoncoming traffic in the
adjacent lane of travel,4 saw the defendant's vehicle coming, and stopped to let it pass. Id. The
defendant saw available parking spots opposite the plaintiffs vehicle and passed them so that he

4 The term "lane of convenience" is used for convenience. In this case, as in many involving a collision in
a parking lot, there were no clear markings separating lanes of travel as there would be on a highway.
Nonetheless, drivers in such cases tend by convention to travel on the right-hand side of the portions of the
lot available for travel.

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could back into one of them, and did not see that the plaintiffs vehicle was attempting to leave.
Id. After the defendant's vehicle passed, the plaintiff continued backing out of the spot, at the same
time that the defendant began backing into one of the open spots. Id. Neither driver saw the other
vehicle backing up before t heir vehicles collided. Id. The trial court held that each driver was fifty
percent responsible for the collision, and the circuit court did not disturb that finding. Id.
In McDonald v. Hollings^orth, the parties' vehicles were each parked in a parking spot on
opposite sides of a two-lane street, roughly across from one another. 02-131 (La. App. 5 Cir.
6/26/02), 823 So. 2d 408. The defendant backed her vehicle across the lane of travel adjacent to
her parking spot and into the far lane—i.e., the lane adjacent to the plaintiffs parking spot. Id. at
409-10. The plaintiff checked for oncoming traffic in the lane of travel adjacent to his parking
spot, saw none, and then backed into that lane. Id. The defendant's vehicle backed into the same
lane, against the flow of traffic and from the direction the plaintiff had not checked, and collided

with the plaintiffs vehicle. Id. The trial court dismissed the plaintiffs negligence claims, finding
insufficient evidence that the defendant had breached a duty. Id. Louisiana's Fifth Circuit
disagreed and apportioned seventy percent of the fault to the defendant, holding that she had the
greater obligation of care because she was attempting to reverse across two lanes of a street that
went in opposite directions. Id. at 411.
In Simon v. United States, a USPS LLV backed into the plaintiffs stationary automobile
in a parking lot, traveling at approximately three miles per hour at the time of the collision. 51 F.

Supp. 2d 739, 741 (W.D. La. 1999). At the time of the collision, the plaintiff was waiting to turn
onto the adjacent street but was operating the automobile on the wrong side of the road. Id. at 745.
The LLV incurred no visible damage, and the automobile suffered "a barely distinguishable dent
in the left front door." Id. at 741-42. The court apportioned fifty percent of the fault to each driver,

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holding in part that the fact that the plaintiffs automobile was on the wrong side of the road meant
that it was reasonable for the reversing USPS driver not to expect the automobile to be there. In
addition, given the low speed involved, the plaintiff "could easily have avoided the accident" and
"should have had ample opportunity to blow her horn or move her vehicle." Id. at 748.
In Duhon v. State Farm, the plaintiffs vehicle was traveling through an intersection in a
parking lot at approximately one mile per hour. Duhon, 94 So. 3d at 115-16. The defendant's
vehicle entered the lot from an adjacent street, entered the intersection where the plaintiffs vehicle
was, and the vehicles collided. Both vehicles were damaged—the plaintiffs on the ride side, and
the defendant's on the left front—in a manner which suggested the defendant's vehicle collided

with the plaintiffs. Louisiana's Third Circuit held that both drivers acted negligently and each was
fifty percent at fault. Id. at 117.
In Chenevert v. Wal-Mart Stores, Inc., the plaintiff was traveling through a parking lot and

collided with a forklift driven by the defendant's employee. 2002-1075 (La. App. 3 Cir. 2/5/03),
838 So. 2d 922, 924-25. The area where the collision happened was one where boxes of
merchandise were stored, which obstmcted the plaintiffs view. Id. There was testimony that the
forklift emerged unexpectedly from behind the boxes, but also that the plaintiff was traveling with
excessive speed. Id. There, the jury apportioned fifty percent of fault to each driver, and that
finding was not disturbed. Id.
In Lawrence, the defendant slowly backed her vehicle out of a parking spot into a parking
lot's lane of travel. 973 So. 2d at 960. The defendant's view while parked had been blocked by
adjacent vehicles, requiring that she back out slightly to see whether there was oncoming traffic.
Id. The plaintiff was driving in the lane of travel into which the defendant was backing, and the
plaintiffs vehicle collided with the defendant's. Id. The damage to each vehicle indicated clearly

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that the plaintiffs vehicle hit the defendant's vehicle after the latter had protmded into the
plaintiffs lane of travel. Id. at 963. The trial court held that the defendant had not breached any

duty, and Louisiana's Second Circuit affirmed, holding that if the plaintiff had been driving slowly
and attentively, he would have been able to recognize the defendant's vehicle emerging into his
lane of travel and avoided a collision. Id.
Berry and Reed suggest that there was insufficient time to avoid the collision, though Berry
had time to use his automobile's horn after spotting CampbelFs LLV backing toward his vehicle.
Moreover, the damage to Berry's vehicle, although relatively minor, was more than a "barely
distinguishable dent," indicating the LLV here was traveling more quickly than the one in Simon.
Finally, Campbell admitted to the other parties involved that she was distracted and did not notice
Berry's automobile. On the other hand, to the extent lanes of travel exist in the parking lot, Berry
put his vehicle in the oncoming lane of travel when he knew there were other vehicles in the lot at
the same time.5

"In assessing the nature of the conduct of the parties, the Court has considered: (1) whether
the conduct resulted from inadvertence or involved an awareness of the danger; (2) how great a

risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the
capacities of the actor, whether superior or inferior, and (5) any extenuatmg circumstances which
might require the actor to proceed in haste, without proper thought." Schexnayder v. Bridges, 2015-

0786 (La. App. 1 Cir. 2/26/16), 190 So. 3d 764, 773 (citing Watson v. State Farm Fire and Cas.
Ins. Co., 469 So.2d 967, 974 (La.1985)).

5 A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from
such lane until the driver has first ascertained that such movement can be made with safety. La. Stat. Ann.

§32:79.

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Considering the trial record and the relevant authorities, the Court concludes that Campbell
bears more responsibility than Berry, though both contributed to the collision. Like the defendant
in McDonald, Campbell was attempting to perform a long-distance reversing maneuver, placing
her vehicle in a space that was available to other vehicles using the same parking lot, which
imposed a higher duty on her to see potential hazards. Like the plaintiff in Simon, Berry placed his
vehicle in a lane of travel that would typically be used by vehicles traveling in the opposite
direction. In most of the cases discussed above, neither driver here saw the other's vehicle prior to
the collision, and each was assessed fifty percent of the fault. The facts of this case are most similar
to McDonald, and it is appropriate to apportion fault similarly. The Court finds that Campbell was
seventy percent (70%) at fault, and Berry thirty percent (30%). As Berry is not a party to this
matter, any damages to which Reed is entitled from the government will be reduced accordingly.
B. Medical Causation.
Reed's medical treatments and expenses fall into four categories: neck (cemcal) pain or
injury, lower back (lumbar) pain or injury, hip pain or injury, and aggravation of preexisting pain
or injury.

1. Cervical and Lumbar Pain.
As to Reed's cervical and lumbar pain. Reed has not carried his burden of proving that they
were caused by the subject collision. The Court considered the following:
• Reed was involved in a severe accident in 2004 with a tractor-trailer that resulted in
neck, back, and knee injuries, which ultimately resulted in lumbar surgery.
• Reed was involved in a second accident in 2012 that resulted in severe neck and back
pain. Reed did not report improvement in that pain over eleven months of treatment.
• Reed was involved in a third accident in 2016 where, again, he suffered neck and back
injuries.

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• Reed5 s treating physicians and Dr. Romero all agreed that Reed had suffered substantial
injuries in prior accidents and had chronic pain in his neck and low back that was being
treated with medication at the time the collision happened.
• Before the subject 2017 accident, Reed applied for Social Security disability assistance,
asserting that his neck and back pain rendered him unable to work.
• Reed testified at trial that his condition was largely the same before and after the
accident, but that afterward the pain in his neck and low back were more severe.
• Dr. Romero testified that the pain Reed reported after the subject 2017 accident was
caused by chronic conditions predating the collision, and that the images of Reed's
spine taken after the 2017 accident did not show significant changes from images taken
after the 2012 accident.
• The Court finds Dr. Romero's testimony credible. The Court places less weight on the
testimony of Drs. Hay del, Metoyer, and Williams with respect to causation because
they were unaware of Reed's 2012 and 2016 collisions.
Accordingly, Reed has not established by a preponderance of the evidence that the subject accident
caused his neck and back pains.
2. Aggravation of Cervical and Lumbar Pain.
As to aggravation, there is no dispute between Reed, his treating physicians, or Dr. Romero
that his symptoms worsened after the collision. Reed testified at trial that his doctors first
recommended physical therapy, home exercises, and the use of cmtches. Reed testified that these
treatments provided substantial relief of his neck and lumbar symptoms, but not total relief. Again,
however, the record shows that Reed had been complaining of neck and lumbar symptoms prior
to the collision, so the lack of total resolution does not show that the collision caused the neck and
lumbar symptoms. Dr. Romero also offered unrebutted testimony that Reed reported that after the
accident, he experienced substantial amelioration of symptoms after undergoing physical therapy
at Opelousas General Hospital. In light of that report, and the fact that Reed complained of roughly
equivalent neck and lumbar pain before and after the collision, Dr. Romero testified that the
evidence was consistent with the 2017 collision having caused Reed to experience an aggravation

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of neck and lumbar symptoms that was ameliorated with physical therapy.6 Accordingly, Reed has
carried his burden of proving that the collision caused aggravation of his neck and lumbar pain
that was addressed with physical therapy.
3. Hip Injury.
Reed has carried his burden of proving that his hip injury was caused by the subject
collision. Contrary to Dr. Romero's testimony that Reed first complained of hip pain
approximately two years after the collision, Dr. Metoyer testified that Reed reported hip pain at
his first visit after the collision, in September 2017. Tr. Exh. J6 at 14-15. Reed offered unrebutted
testimony at trial that after the collision, he experienced weakness in his right leg for the first time,
which resolved after Dr. Williams performed the hip joint fusion surgery.
Furthermore, Dr. Romero's IME report and Dr. Aaron Wolfson's life care plan corroborate
Dr. Williams5 testimony regarding the chronology of Reed's hip treatment, as follows: Reed's
spinal cord stimulator was installed on July 22, 2019. J35 at 21. On December 5, 2019, Reed
reported to Dr. Williams that he continued to have hip pain, though his lumbar pain had lessened
with use of the stimulator. Id. After an evaluation. Dr. Williams determined the right hip joint was
a possible source of pain and recommended a right hip injection, which he performed on January
20,2020. Id. On February 19,2020, Reed reported that the injection had provided temporary relief,
and Dr. Williams9 certified physician assistant recommended a second injection, which Dr.

6 Reed argues that this opinion was not included in Dr. Romero's expert report. However, the Assessment
section of Dr. Romero's report of December 31, 2021 states, in part,
While [Reed] may report a subjective increase in his underlying symptoms, I do not relate
his need for extensive treatnent, which has included injections and multiple surgical
procedures, to the motor vehicle collision from August 14, 2017.1 do believe that the initial
physical therapy that was performed which was documented in the medical records to have
provided him some relief would be appropriate for his subjective increase in symptoms.

(J34 at 6).
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Williams performed on March 9, 2020. Id. On April 6, 2020, Reed reported temporary and less
relief from the second injection, discussed treatment options with a provider in Dr. Williams'
office, and indicated a preference for a hip joint fusion. Id. On May 29, 2020, Dr. Williams
performed a right hip joint fusion. Id. On June 6, 2020, Reed reported minimal pain in his hip, and
Dr. Williams recommended physical therapy. J34 at 3; J35 at 21. On March 23, 2021, Reed
reported some residual pain in the right hip, and Dr. Williams recommended continued therapy.
Id. On July 22, 2021, Dr. Williams noted that Reed's right leg was noticeably stronger and
recommended that Reed continue with home exercises and only return if needed. Id.
This undisputed timeline shows by a preponderance of the evidence that the collision
caused injury to Reed's right hip that was ameliorated through injections, surgery, and therapy.

While Reed testified that he had experienced pain radiating into his hips after a prior collision, the
government did not offer testimony or records suggesting that Reed experienced pain originating
in his right hip prior to the collision. The government did not rebut Reed's testimony that he
experienced right leg weakness for the first time after the collision. Accordingly, Reed has carried

his burden of proof as to his hip injury.
IV.
DAMAGES AWARDED
A. Damages.

Reed is entitled to damages arising from the injuries or aggravations he suffered in the
2017 accident. As noted above, Reed has proved by a preponderance of the evidence that the

collision caused (1) his hip injury and (2) aggravation of his neck and lumbar pains.
1. Past and Future Medical Expenses.
Reed seeks $555,770.00 in past medical expenses and $1,422,715.00 in future medical
damages. Reed is entitled to the medical expenses incurred in three categories: (1) the initial

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evaluations and imaging studies performed as a result of the collision, (2) physical therapy to
address the aggravation of Reed's lumbar and cervical pain, and (3) treatments to address Reed's
hip injury and symptoms. Reed did not offer evidence or testimony that those categories will
require future treatments. Accordingly, Reed is entitled to certain past medical expenses and no
future medical expenses.

Based on Reed's itemization of medical expenses. Pl, the Court awards the following
amounts:

1) $5,311.00 for Reed's initial evaluations with Dr. Williams, Dr. Metoyer, and Sunset
Imaging, from August 31, 2017 through September 215 2017;
2) $5,955.00 for Reed's physical therapy at Opelousas General Hospital from October 11,

2017 through January 25, 2018; and
3) $88,951.90 for evaluations, injections, surgery, and physical therapy related to Reed's hip
treatment.7

Reed's past medical expenses total $100,217.90. In light of the apportionment of fault. Reed is
entitled to recover special damages in the amount of $70,152.53 from the government.
2. General Damages.

Reed seeks a total of $4,500,000 for past and future general damages.8 The government
argues that Reed is entitled to no more than $15,000 in general damages. As noted above. Reed is
entitled to damages arising from the aggravation of his neck and lumbar pains, which Reed told
Dr. Romero resolved on approximately January 25, 2018, and his hip injury, which he told Dr.

7 These are the amounts in Reed's treatment itemization that are distinguishable as being related to the hip
only. The record shows that, through implantation of the spinal cord stimulator, Reed's low back treatments
were intended to address his lumbar, hip, and lower extremity symptoms.
8 Specifically, Reed requests $300,000 for past and future mental and emotional pain and suffering,

$4,000,000 for past and future physical pain and suffering, and $200,000 for past and future loss of
enjoyment of life

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Williams resolved on approximately June 9, 2020. As to general damages, Reed testified that he
lost substantial time with his children due to his pain and treatments. Reed testified that he used
crutches for a time as directed by his physicians. However, Debra Bourgeois testified that she
never saw Reed using a cane, brace, or medical device, or have trouble navigating the stairs to his
apartment, and saw him walking around the complex almost daily until she left the complex in
January of 2018.
Reed cites several cases to support his general damages claim, but most are inapposite
because they did not involve similar injuries or treatments to the ones for which Reed can recover.9
One of the relevant cases he cites is O'Neal v. USA, No. 19-CV-1472,2022 WL 468966 (W.D. La.
Feb. 15,2022), reconsidered in part on other grounds, No. 19-CV-1472,2022 WL 2288057 (W.D.
La. June 24, 2022)(Drell, J.). 0)Neal involved a two-vehicle collision on a two-lane highway, in

which the defendant's USPS LLV turned left and collided with the plaintiffs vehicle, which was
attempting to pass the LLV on the left in a "no passing" zone. Id. at * 1. The plaintiffs physicians
recommended that he undergo bilateral cemcal ablations every twelve to eighteen months for
approximately ten years, at which point they would no longer be effective and he would require a
fusion. Id. at *4. However, by the time of trial three years after the collision, the 58-year-old
plaintiff had had one ablation on one side of his neck, and was still able to work as a singer and
announcer, though he could not lift heavy objects. Id. Assuming the plaintiff would have the
surgery in the future after a series of approximately twelve injections, and the possibility that

surgery might diminish the plaintiffs quality of life, the court awarded $260,000 in past and future
general damages. Id. at * 8. Ignoring the other factual distinctions, here, Reed had only two

9 Counter to Reed's assertion, in Vick v. Ford, 721 So.2d 535 (La. App. 3 Cir. 1998), which involved
intensive medical treatment, the court recounted that the plaintiff was awarded damages of $3,239,028, but
did not indicate how much of the award was special versus general damages.

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injections and had hip surgery approximately three years after the collision. Furthermore, Reed
testified that surgery largely resolved his leg symptoms, and did not indicate ongoing problems
with his right leg that were not present before.
Reed also cites O'Key v. United States, No. 2:20-CV-00119, 2022 WL 1813952, at *1
(W.D. La. June 2, 2022)(Cain, J.). There, while a USPS LLV was stopped to deliver mail, the
plaintiffs' vehicle passed the LLV on the left and turned right, a few meters ahead of the LLV, to
enter their driveway. Id. at * 1-2. While the plaintiffs5 vehicle was turning, the LLV began driving

forward and collided with the plaintiffs' right front wheel. Id. The plaintiff driver began
experiencing neck, shoulder, and back pain immediately after the collision, and underwent more
than three years of treatment involving physical therapy, medication, and injections. Id. at * 4-6.
The court found that the plaintiff would require future medical treatment, including therapy and at
least one surgery. Id. at * 16. The court also noted that the plaintiff complained of pain consistently
starting after the accident, and continued to work in an occupation that exacerbated her injuries.
Id. Considering all the factors, the court awarded $200,000 in past and future general damages. Id.
Here, Reed attempted to treat his hip injury, along with his chronic and aggravated injuries, for
approximately three years prior to surgery. Again, Reed testified that surgery largely resolved his
leg symptoms, and did not indicate ongoing right leg pain that was not present before.
The government cites several cases in support of its position.10 In Jones v. Bravata, 280
So.3d 226 (La. App. 1 Cir. 5/29/2019), the plaintiffs' vehicle was rear-ended by the defendant's
vehicle. One of the plaintiffs began to experience various pains a few hours after the collision,
including in her neck and back, and undenvent numerous treatments over the next several years,
including non-invasive surgical procedures. Id. at 230-31. There was conflicting testimony about

10 In the government's cited cases that are not discussed, either the plaintiff was held to not have been
injured or the defendant was held not to be liable for negligence. Neither is the case here.

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the effectiveness of the treatments. Id. at 234-35. The jury awarded that plaintiff a total of $15,000
in past and future general damages. Id. Louisiana's First Circuit declined to disturb that award
because there was evidence that: the plaintiff exaggerated the severity and duration of her
symptoms; the collision caused her neck injury and aggravated her prior back injury; and her neck
pain was inconsistent and less severe than her back complaints. Id. at 237. Here, there was not
testimony that Reed exaggerated the severity or duration of his symptoms, and all physicians
agreed his neck and back pains were aggravated.
In McMaster v. Progressive Sec. Ins. Co. 152 So.3d 979 (La. App.4 Cir. 10/29/14), the
plaintiffs vehicle was rear-ended by the defendant driver. The plaintiff underwent orthopedic
treatment for over a year, but did not require surgery until he was treated for a subsequent injury
which required a cervical fusion. Id. at 981-82. Ten years prior to the subject accident, the plaintiff
was in a vehicle collision and alleged in a suit that he experienced "severe" neck injuries causing
"permanent disability." Id. at 981. The plaintiff continued to work after the third accident,
including performing part-time manual labor after his cemcal fusion. Id. at 981-82. The jury
awarded $10,000 in past and future general damages, which Louisiana's Fourth Circuit declined
to disturb in light of the plaintiffs pre-existing conditions, inconsistent work history, and
impeached credibility. Id. at 983. While Reed had pre-existing conditions, there was no evidence
of a subsequent collision and there was agreement both about Reed's aggravation and hip injury,
including their successful treatments.

In Kaiser v. Hardin, 2006-2092 (La. 4/11/07), 953 So. 2d 802, the married plaintiffs sued
for damages arising from a motor vehicle accident. Three months prior to the subject collision, the
plaintiff wife had suffered a stroke, which resulted in her experiencing tingling in two of her fingers
at the time of the subject collision. Id. at 805. The plaintiffs were also involved in two other vehicle

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collisions, approximately two weeks prior and one week after the subject collision. Id. at 804. After
the subject collision, the plaintiff wife sought treatment for neck pain and lefit finger numbness. Id.
She underwent therapy, medication, and injections for two to three years thereafter, with no
decrease in symptoms, and the jury awarded the wife $13,200 in general damages. Id. at 805-08.
Louisiana's Fourth Circuit increased her general damages to $30,000, but the Louisiana Supreme
Court reinstated the jury's award, holding that there was evidence the plaintiff suffered preexisting spine degeneration, and no evidence that the second accident aggravated her condition
more than the other collisions. Id. at 809-10.
Other cases are instructive as well. In Graves v. Ward, No. CIV.A. 02-2914, 2002 WL
31556355, at *2 (E.D. La. Nov. 15, 2002), for instance, the court cited numerous cases supporting
a range of $3,500 to $35,000 for neck and back pain and aggravation arising from a motor vehicle
collision. In another example, Tripp v. DG Louisiana, LLC, 23-487 (La. App. 5 Cir. 4/24/24), 386

So. 3d 1197,1206, rehfg denied (May 7, 2024), which involved a slip and fall rather than a vehicle
collision, the plaintiff required extensive treatments, including SI joint injections and fusion, and
experienced certain complications from treatment that required reparative treatment. The jury
awarded her $236,000 in general damages, and Louisiana's Fifth Circuit declined to disturb that
award. Id. at 1211-12. The court held that there was evidence that the plaintiff s condition had
improved after her treatments and surgeries, and there was little evidence that she continued to
experience pain and suffering, mental anguish, or emotional distress. Id. at 1211-12.
Here, Reed testified that he experienced aggravation of his neck and lumbar symptoms for
approximately six months, which resolved after physical therapy, and experienced pain and
weakness in his hip and leg for approximately three years, which resolved after surgery. While
those injuries and treatments no doubt created physical and emotional pain and suffering before

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symptoms resolved. Reed did not offer evidence of how they were made manifest beyond having
lost time with his children.
The extent of the subject accident, the aggravation of pre-existing injuries and pain
symptoms, and the impact on Reed's daily activities and quality of life after the 2017 accident, as
compared to prior to the accident, do not support a damages award similar to that in 0 'Key and
O'Neil. However, in light of the aggravation of neck and back symptoms and the injury to and
procedure performed on Reed's hip, the evidence does not support the lower awards in Jones,
McMaster, and Kaiser. Considering the evidence in the record and the relevant cases, the Court
finds Reed is entitled to $50,000 in general damages. Applying the apportionment of fault. Reed
is entitled to recover $35,000 in general damages from the government.
B. Failure to Mitigate
In post-trial briefs, the government argues that Reed's past medical damages should be
reduced to zero due to his bad faith failure to mitigate his damages. ECF Nos. 59 at 19; 60 at 7. A
plaintiff has a duty to make reasonable efforts to mitigate the damage caused by a tortfeasor, and
if the plaintiff fails to make such efforts, the tortfeasor may demand a reduction in damages. MB

Indus., LLCv. CNA Ins. Co., 2011-0303 (La. 10/25/11), 74 So. 3d 1173, 1181 (citations omitted).
"The failure to mitigate damages is an affirmative defense, and the burden of proof is on the party
asserting the defense." Id.

The government argues that before and after the accident. Reed was covered by Medicaid,
which is govemment-provided health insurance that reimburses medical providers at a lower rate
than they would receive from private insurers. ECF Nos. 59, 60. Some of the providers Reed
treated with for the subject collision had also treated him previously and accepted Medicaid
reimbursement at that time. Id. However, after the collision. Reed and several of his medical

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providers executed a series of agreements with HMR Funding, LLC ("HMR Funding"), a thirdparty litigation funding company. ECF No. 41 at 1-2. Under these contracts, HMR Funding agreed
to pay for Reed's medical services allegedly arising from the collision, at a discount of the amounts
the providers invoiced to Reed. Reed assigned his rights to recover any amounts he received from
this litigation, up to the invoiced amounts, to his medical providers, who then assigned those rights
to HMR Funding. The agreements provide that Reed remains liable to the providers for the total
undiscounted invoiced amounts. Id.

The government argues that, by entering the agreements with HMR Funding to pay for
care, instead of continuing to use Medicaid for the "same exact care/' Reed unnecessarily increased
his special damages "exponentially." ECF No. 60 at 9. Additionally, the government asserts that
Reed lied in the HMR Funding agreements when he asserted he could not afford his medical
treatments. Reed argues that even during the existence of the HMR Funding agreements, he used
Medicaid whenever possible, and that the government offers no evidence that Reed could have
received the same treatments he did by using Medicaid rather than HMR Funding.
The Court finds the government has not carried its burden of showing Reed failed to
mitigate his damages. No evidence was adduced at trial of which treatments prior to the subject
collision had been covered by Medicaid, nor was there evidence of which of Reed's post-collision
treatments would have been available to him under Medicaid and which would not. Thus the Court
cannot detennine the extent to which Reed might have increased his damages, or whether such
increase was "exponential." And while the government cites cases that Reed's recovery can be

reduced for his failure to mitigate, it does not provide authority for reducing his recovery to zero.
Furthermore, the Court is not persuaded that Reed lied in the HMR Funding agreements
when he agreed that he was unable to pay the invoiced amounts. Indeed, the facts that Reed was

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not working at the time of the collision due to his pain, and was covered by a program intended

for the indigent and disabled, suggests that he did not have the ability to pay for his medical
treatment himself, as stated in the agreements. The agreements did not require Reed to attest that
he was without any ability to have medical services paid for by a third party, as the government's
argument requires.

Finally, the government has not proven that Reed acted in bad faith. The government's
own support defines bad faith as continuing treatment after having been healed for the sole purpose
of increasing damages, or deliberate exaggeration of the impact of a collision and the extent of
injuries. ECF No. 58 at 24. No evidence was offered at trial that Reed continued treatment after he
had been healed or exaggerated the extent of his injuries for the sole purpose of increasing his
damages. As discussed above, the undisputed record shows that Reed suffered a hip injury and
aggravation of his neck and lumbar symptoms. Without evidence of what services were available
to Reed using Medicaid versus a private pay or, the government has not carried its burden that Reed
failed to mitigate his damages.

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IV.

CONCLUSION
Considering the foregoing,

IT IS HEREBY ORDERED that the government pay to Plaintiff, Paul Reed, $70,152.53
in special damages and $35,000.00 in general damages, for a total of $105,152.53, arising from
the negligence of the government's employee, Amanda Campbell. Counsel for Plaintiff shall
submit a proposed judgment, approved by counsel for the government, within fifteen (15) days of
the date of this ruling. The judgment should award costs to Plaintiff, reduced commensurate with
this Court's allocation of liability, and post-judgment interest to the plaintiff, as allowed by law.11

THUS DONE AND SIGNED this 5th day of March, 2025.

ROBERT R. SUMMERHA^S
UNITED STATES DISTRICT.

11 Prejudgment interest is not available for claims brought under the Federal Tort Claims act. See 28 U.S.C.

§ 2674.
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