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Acadiana quantum - all's not quiet in the Western District

For a court without judges, the Western District's Lafayette Division has been an active source of quantum news early in 2018. Two jury trials resulted in seven figure general damage awards six weeks apart.

January ended with the trial of Hale v. Wood Group PSN, Inc., 6:15-cv-01803 (USDC-WDLA 01/30/18), in which the plaintiff was awarded general damages of $2,225,000 ($3,239,000 total damages) for major cervical, thoracic and lumbar injuries. While high, the award is not inconsistent with results in cases with similar severity of spine injuries.

Then in March, a jury's award for comminuted wrist fracture treated with multiple surgeries, including fusion, included $1,050,000 for general damages. Bayard v. Cameron, Inc., 6:13-cv-01536 (USDC-WDLA 03/12/18). The total award was $4,271,300. The result far exceeds any other single primary injury case involving the wrist in CompQuantum's database.

Posted: March 20, 2018

A Surprise Party in Amsterdam

My step-daughter lives in Amsterdam. We showed up for her 30th birthday unannounced. She had no idea ...


Morgan is a tour guide. She managed to bring us to the best cheese shop, restaurants, boat ride, and view of the Rijksmuseum (below). You can still see the last ice on the canal after an exceptionally cold beginning of March. We also visited a "Coffeeshop" featured in Oceans 12 - briefly and without making a purchase. Morgan wasn't saying if she spent more time there on other visits.

Posted: March 6, 2018

Another decretal delay (2) - READ THIS POST

If I accomplish one thing with this blog, I hope the words of Judger Sabrina Jenkins save a CompQuantum subscriber several months of needless delay for lack of decretal language in a judgment on appeal.

So, after reading Bernard v. Ace Prop. & Cas. Ins. Co., 2018-0042 (La.App. 3 Cir. 02/28/18), Unpublished, I've made "Decretal language" a searchable case type and am adding another post to what has become the first regular series in the LAw Blog's history. For the earlier posts, see Decretal language - what appellate judges want you to know and Another decretal delay.

If you appeal (or take a writ from) a judgment lacking decretal language, a lot of time will be wasted. See my first blog post if you don't know why and/or are not familiar with the issue.

Quoting Judge Jenkins again:

Importantly, in order for the language of a judgment to be considered "decretal" it "must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied." Mid City Holdings, 14-0506 at p. 3, 151 So. 3d at 910 (citations omitted). Furthermore, "'The specific relief granted should be determinable from the judgment without reference to an extrinsic source such as pleadings or reasons for judgment.'" Bd. of Supervisors of Louisiana State Univ. v. Mid City Holdings, L.L.C., 14-0506, p. 2 (La. App. 4 Cir. 10/15/14), 151 So. 3d 908, 910 (quoting Input/Output Marine, 10-477, p. 13, 52 So. 3d at 916).

Posted: March 1, 2018

February 2018 Newsletter is posted!

Check out the February 2018 newsletter.

February highlights include:

  • $250,000 minimum for multiple injuries, including sternum fracture, broken ribs, lumbar herniations and displaced prosthetic eye lens requiring surgery;
  • USDC-WDLA jury verdict awarding general damages of $2,250,000;
  • Reinstated jury general damage award of $50,000 for cervical injury treated with ACDF surgery;
  • Comprehensive coverage insurance bad faith penalty; and
  • Hearsay and Daubert evidentiary issues.

View the newsletter by clicking the following link: CompQuantum February 2018 Newsletter.

Posted: Feb. 28, 2018

$2,225,000 USDC-WDLA general damages for cervical and lumbar [and thoracic] injuries [UPDATED - 2/25/18 & 2/26/18]

The "Recent Quantum Cases" focus missed a $2,225,000 jury general damage award coming out of the USDC-WDLA Lafayette Division. See Hale v. Wood Group PSN, Inc., 6:15-cv-01803 (USDC-WDLA 01/30/18). The documents available through PACER contain limited specifics, but the defendant's post-trial motion for new trial or remittitur describes effective treatment with cervical and lumbar surgeries.

When plaintiff's opposition memorandum is filed, the case report will be updated.

UPDATE (2/25/18): Plaintiff counsel strongly contests the characterization of his client's injuries, treatment and prognosis described by me in reference to the defense memorandum. After re-reading the memo, I removed the description of surgeries as "single level" as that goes beyond statements in the memo. The single level description was never part of the CompQuantum case report. Also, the defense acknowledges that issues relating to residual complaints, treatment and prognosis were contested. My suggestion the defense argues that plaintiff's complaints were largely resolved after surgery stands based on the following excerpt:

Dr. Erich Wolf testified that plaintiff needed and he performed cervical and lumbar surgeries, that the surgeries were successful and that plaintiff had reached MMI as respects plaintiff’s lumbar spine surgery on 11 January 2016, and cervical spine surgery on 13 April 2017. Hale’s lumbar and cervical condition was noted as largely asymptomatic on 3 August 2017.

UPDATE (2/26/18): Plaintiff counsel generously provided a summary of injuries with which the case post has been updated. An L5-S1 herniation was treated with fusion surgery, including implantation of pedicle screws and rods. The cervical injury, a C6-7 protrusion, was treated with arthroplasty surgery. In addition to the cervical and lumbar injuries, plaintiff had a T7-8 protrusion injury that was treated with ESis and branch blocks. Plaintiff counsel reports significant residual thoracic pain.

Posted: Feb. 23, 2018

3 oddly reasonable reasons why unreasonable damages might be reasonable, or something like that

In reaction to Brown v. Breaux Bridge Ventures, LLC, 17-440 (La.App. 3 Cir. 02/15/18), I promised to blog about questions surrounding reinstatement of $50,000 general damages awarded by a jury for surgical cervical injury. A recent CompQuantum Newsflash invited public comment, but none was forthcoming. So, if the following analysis misses the mark, I'm blaming anyone who could have, but failed to set me straight.

To recap, the panel offered three reasons why the jury could reasonably award future cervical fusion expenses and only $50,000 general damages:

Grounds for concluding that the jury general damage award was reasonable

  1. The record contained no testimony or other evidence establishing pain and suffering associated with the surgery or post-surgery residual effects;
  2. The jury could have found that plaintiff's failure to undergo surgery supported a mitigation defense by which general damages might be cut off as of the date Dr. Blanda recommended surgery; and
  3. Inconsistencies between plaintiff's testimony and other medical evidence about injuries and reported pain reasonably called his credibility into question.

I described the opinion as "odd" because it seems inconsistent with existing case law. I agree that item 1 is, in theory, a perfectly reasonable basis to deny general damages. Item 2 is perfectly logical except in the implementation. I have no argument with item 3 as a general matter, but the jury award of future surgical expenses suggests that plaintiff's credibility was not a determinative factor. My concurrence with the court's logic notwithstanding, I'll try to explain why I think the opinion is odd.

Evidence of pain and suffering

There are plenty of cases declaring minimum reasonable general damage awards for injuries requiring surgery. Perhaps in every one the suit record contained the kind of evidence missing in this case. But I don't recall any opinion conditioning a minimum award on such testimony. The opinions seem to take it as a judicially noticeable fact that surgery and recuperation are inherently painful. As a recovering defense attorney, I question categorical presumptions of suffering, but I don't recall any court raising that as a concern. If there is a functional evidentiary threshold to enforcement of reasonable minimums applied to certain surgical conditions, this may be the first opinion making that explicit. So, on this point, the opinion is odd, even though I also think the logic is reasonable.

Mitigation of damages

Obviously, plaintiffs have a duty to mitigate damages. Equally apparent is the fact that failure to follow physician instructions is a classic reason for finding failure to mitigate. Whatever the limits of these propositions, there doesn't seem to be any reason why recovery for pain and suffering may be terminated the same day surgery is recommended. Speaking of evidentiary silence, to cut off the damages that day would seem to depend on testimony that the surgery could and should have been performed immediately. Otherwise, it seems the plaintiff should be given a reasonable time within which to have surgery. And, as an affirmative defense, the burden falls on the defendant to prove what is a reasonable time. So, was there any evidence proving that plaintiff's failure to go under the knife the day Dr. Blanda recommended surgery was unreasonable? Was there evidence as to what the reasonable time for a decision would be? The opinion doesn't say.

Plaintiff credibility

My issue with the credibility explanation is, as stated above, an apparent inconsistency between the suggestion that plaintiff's compromised credibility was a basis for rejecting his claim and the jury's decision to credit his claim for the cost of future surgery. If the jury didn't believe plaintiff had a surgical neck condition, then the award of surgical expenses should be reversed. Alternatively, if the jury believed he had a surgical condition, then confused testimony isn't a reason to slash general damages below what would normally be the minimum reasonable for that injury.


Perhaps the three arguments work together and shouldn't be critiqued standing alone. I don't know, but I am certain this result struck me as odd.

Posted: Feb. 20, 2018

4th JDC Health Care Billing Class Certification

Fourth JDC Judge Daniel Ellender issued reasons for judgment certifying a proposed class for purposes of claims asserted under Louisiana's Health Care Consumer Billing and Disclosure Protection Act (La. R.S. 22:1871 et seq.). Rabun v. St. Francis Medical Center, 2014-1389 (4th JDC 1/30/2018). He ordered counsel to prepare a judgment by February 21.

The Petition alleges that St. Francis placed a lien on the class representative plaintiff's tort recovery of medical expenses in lieu of seeking payment from her health insurer.

St. Francis opposed certification on several grounds. Perhaps the most interesting were arguments that plaintiff's claim is not broadly representative because St. Francis did not enforce its lien in her case and that she poorly understands details of the litigation. On the second point, Judge Ellender relies on the competence of counsel as a proxy for demonstrable knowledge of the class representative.

Posted: Feb. 6, 2018

The First CompQuantum Newsletter

The first CompQuantum newsletter compiling the past month of Louisiana personal injury litigation and appellate practice is now available. Click the link below to view.

January 2018 Newsletter

Posted: Jan. 31, 2018

Another decretal delay

Another appeal has ground to a halt for lack of judgment decretal language. See Mouton v. AAA Cooper Transp., 17-666 c/w 17-667 (La.App. 3 Cir. 01/10/18).

As a reminder, Fourth Circuit Judge Sandara Cabrina Jenkins offered the following explanation for the requirements of a proper judgment:

Importantly, in order for the language of a judgment to be considered "decretal" it "must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied." Mid City Holdings, 14-0506 at p. 3, 151 So. 3d at 910 (citations omitted). Furthermore, "'The specific relief granted should be determinable from the judgment without reference to an extrinsic source such as pleadings or reasons for judgment.'" Bd. of Supervisors of Louisiana State Univ. v. Mid City Holdings, L.L.C., 14-0506, p. 2 (La. App. 4 Cir. 10/15/14), 151 So. 3d 908, 910 (quoting Input/Output Marine, 10-477, p. 13, 52 So. 3d at 916).

See our earlier blog post for more discussion of this recurring problem. Decretal language - what appellate judges want you to know.

Posted: Jan. 30, 2018

But, your Honor, what about my "other murder case"?

Criminals is dumb.

Exhibit A: Michigan Defendant Implicates Himself In Second Crime After Asking Judge About His “Other Murder Case”

Posted: Jan. 30, 2018