Case: 15-30483      Document: 00513302416         Page: 1    Date Filed: 12/10/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-30483                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                        December 10, 2015
MARCUS BERRY,                                                              Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

AUTO-OWNERS INSURANCE COMPANY; LEON ROBERSON,

              Defendants - Appellants




                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:13-CV-145


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:*
       Marcus Berry was injured in a car accident in February 2012 and has
required medical treatment for chronic back pain ever since. Defendants—an
insurance company and the driver that caused the accident—appeal a sizable
jury award that has already been reduced by the district court. They argue
that the district court abused its discretion by failing to order a new trial or



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 15-30483
remittitur on future medical damages, and by only reducing the jury’s award
of general damages from $900,000 to $400,000. Finding no reversible error,
we affirm.
                                    I. Background
       On February 15, 2012, Leon Roberson cut Berry off in traffic, causing
Berry to rear-end Roberson.          Berry sued Roberson and his insurer, Auto-
Owners Insurance Company; Defendants conceded liability but contested the
nature and extent of Berry’s damages. The case proceeded to a jury trial at
which the evidence showed the following.
       Berry began experiencing back pain soon after his accident and
consulted a chiropractor who treated him with electric shock, heat and ice, and
exercise therapies for several months. These treatments reduced but did not
eliminate Berry’s pain.        Eventually, the chiropractor referred him to Dr.
Joseph Turnipseed, a medical doctor specializing in pain management and
spinal injuries, who treated Berry and testified at trial. Through physical
examination and a procedure by which numbing medicine is injected into the
suspected problem area—and with a high degree of confidence—Dr.
Turnipseed diagnosed Berry with a “facet joint syndrome” (pain caused by
injury to the joints of the spine) attributable to the car accident. 1
       Dr. Turnipseed first treated Berry by injecting a steroid into his facet
joints, which provided effective pain relief but did not last long enough.
Accordingly, Dr. Turnipseed began performing a procedure known as a
“rhizotomy” or “radiofrequency ablation,” in which he uses a hot needle to burn
away the nerves that deliver pain signals from the injured area to the brain.
A rhizotomy is not a permanent fix because nerves regenerate over time. Dr.


       1  Although Defendants stress that no MRI or similar imaging test supports this
diagnosis, both Dr. Turnipseed and Defendants’ own medical expert testified that facet joint
injuries often cannot be detected with an MRI.
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                                 No. 15-30483
Turnipseed testified that a successful procedure provides effective pain relief
for at least six months and as long as a year. He also testified to medical
literature supporting the undiminished effectiveness of annual rhizotomies for
seven years. Dr. Turnipseed said that he has successfully used the procedure
on patients ten years in a row, and that he would perform annual rhizotomies
on Berry as long as they continued to be effective.
      Berry testified that his two rhizotomies thus far have decreased his pain
to a manageable level for about eight to nine months, and that with pain
medication he can go an additional month or two between procedures. Berry
is willing to undergo more rhizotomies or other procedures, and Dr. Turnipseed
believes that he will need to keep performing ablations and prescribing pain
medication for Berry. According to Dr. Turnipseed, if the rhizotomies stop
working for Berry, other options would include a “dorsal column stimulator,”
an implant that uses electrical signals to block pain pathways along the spinal
cord. Regardless, Dr. Turnipseed testified, Berry will need some form of pain
management for the rest of his life.
      In addition to medical expert testimony, Berry presented an economist,
who used the cost of an annual ablation procedure and Berry’s actuarial life
expectancy to compute a present cash value of approximately $351,000 for a
lifetime of annual rhizotomy treatments. Defendants presented Dr. Allen
Joseph, a neurosurgeon, who reviewed Berry’s medical records and examined
him once for about thirty minutes.         Dr. Joseph agreed that Berry had
significant tenderness in his lumbar area. He expressed skepticism about the
effectiveness of and literature supporting long-term repeated rhizotomies, but
acknowledged that “there are a lot of people that take a different attitude . . .
and . . . they may be right.”
      Before the accident, Berry—who went to college on a football
scholarship—was passionate about athletics and played basketball several
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                                    No. 15-30483
times a week. He was confident and social, and playing sports was his primary
social activity. According to his girlfriend—who has lived with him since before
the accident—his injuries have left him less happy and outgoing. Berry can no
longer engage in sports or play with his young children as actively as he or
they would like; his ability to do chores around the house and help his aging
parents is also limited, and he has gained about forty-five pounds. Berry has
been able to continue working, but testified that he would not be able to do so
without the pain relief provided by the ablations.
      The jury found that Berry was injured in the accident and was not
suffering from a pre-existing condition. The jury awarded Berry $600,000 in
damages for past, present, and future pain and suffering; $390,000 for past,
present, and future medical expenses; and $300,000 for past, present, and
future loss of enjoyment of life. Defendants moved for a new trial or remittitur,
claiming that the damages awarded were excessive and raising other
arguments they have abandoned on appeal. In a detailed and thoughtful order,
the district court denied the motion as to future medical expenses, 2 concluding
that there was sufficient evidence for the jury to conclude that Berry would
need pain management therapy for the rest of his life, and would likely
continue to need ablations performed at least once a year. As to general
damages, the district court found that the record “certainly reflects a
diminishment in Berry’s quality of life,” but could not support an award of
$900,000. Reviewing Berry’s testimony and case law, the district court reduced
the general damages award to $400,000 ($250,000 for pain and suffering and
$150,000 for loss of enjoyment of life). Berry chose to accept the reduced award




      2 Defendants have not challenged the jury’s award of approximately $39,000 in past
medical expenses.
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                                  No. 15-30483
rather than a new trial, and the district court entered final judgment in the
amount of $790,000. This appeal timely followed.
                            II. Standard of Review
      In a diversity case such as this one, a district court applies the remittitur
standard of the forum state. Foradori v. Harris, 

, 497 (5th Cir.
2008). This court reviews a district court’s decision on a motion for remittitur
for abuse of discretion. 

That review is deferential, for “[t]rial
judges have the ‘unique opportunity to consider the evidence in the living
courtroom context,’ while appellate judges see only the ‘cold paper record.’ ” 

(quoting Gasperini v. Ctr. for Humanities, Inc., 

, 438
(1996)). We therefore “give the benefit of every doubt to the judgment of the
trial judge.” 

      Here, the applicable state law provides:
      If the trial court is of the opinion that the verdict is so excessive or
      inadequate that a new trial should be granted for that reason only,
      it may indicate to the party or his attorney within what time he
      may enter a remittitur or additur. This remittitur or additur is to
      be entered only with the consent of the plaintiff or the defendant
      as the case may be, as an alternative to a new trial, and is to be
      entered only if the issue of quantum is clearly and fairly separable
      from other issues in the case.
La. Code. Civ. Proc. Ann. art. 1814 (2015). Louisiana courts have “consistently
held that in the assessment of damages, much discretion is left to the judge or
jury, and upon appellate review such awards will be disturbed only when there
has been a clear abuse of that discretion.” Theriot v. Allstate Ins. Co., 

1337, 1340 (La. 1993). We have also stressed deference to trial courts,
stating that “in the area of evaluating whether a jury’s award is excessive, ‘the
appellate court should step lightly or not at all.’ ” Seidman v. Am. Airlines,
Inc., 

, 1140 (5th Cir. 1991) (citations omitted).



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                                  No. 15-30483
                                III. Discussion
      Defendants argue that the district court abused its discretion in
upholding the jury’s award of medical damages, and in not reducing the jury’s
general damages award more than it already has. We disagree on both counts.
A.    Medical Damages
      Under Louisiana law, a tort victim may recover both past and future
medical expenses. Menard v. Lafayette Ins. Co., 

, 1006 (La. 2010).
The plaintiff “shows the probability of future medical expenses with supporting
medical testimony and estimations of their probable cost.”         

expenses must be established with some degree of certainty”; that is,
the plaintiff must prove “by a preponderance of the evidence the future medical
expense will be medically necessary.” 

award for future
medical expenses is in great measure highly speculative and not susceptible to
calculation with mathematical certainty,” so fixing such awards generally
“turn[s] on questions of credibility and inferences, i.e., whose experts and other
witnesses does the jury believe?”      

   Thus, a jury’s
determination of the appropriate amount of future medical damages is
“entitled to great deference on review,” and may only be disturbed if it lacks a
reasonable basis and is clearly wrong. 

And where the jury’s
findings depend on crediting the testimony of competing witnesses, its decision
will almost never be clearly wrong. 

      Defendants argue that Berry failed to prove that he would need
rhizotomies for the rest of his life, and that the only future medical expenses
that could reasonably be awarded are the costs of an annual ablation for the
five additional years supported by medical literature described at trial. But it
was undisputed at trial that Berry was injured by the accident, and his
treating physician testified (1) that Berry would need some form of pain
management for the rest of his life and (2) that he had personally given
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                                  No. 15-30483
patients annual rhizotomies for longer than seven years with good results.
Defendants cross-examined Dr. Turnipseed and offered their own medical
expert in an attempt to persuade the jury that Berry’s claimed future medical
expenses were unsupported—but the jury evidently credited Berry’s evidence.
See 

(“Where there is conflict in the testimony,
reasonable evaluations of credibility and reasonable inferences of fact should
not be disturbed upon review.” (citation omitted)). On this record, we cannot
say that the jury’s medical expenses award is unreasonable and clearly wrong,
or that the district court abused its discretion in declining to disturb it.
B.    General Damages
      “General damages are those which may not be fixed with pecuniary
exactitude; instead, they ‘involve mental or physical pain or suffering,
inconvenience, the loss of intellectual gratification or physical enjoyment, or
other losses of life or life-style which cannot be definitely measured in
monetary terms.’ ” Duncan v. Kansas City S. Ry. Co., 

, 682 (La.
2000) (citation omitted). Because general damages by their nature “may not
be fixed with pecuniary exactitude,” an appellate court’s role “is not to decide
what it considers to be an appropriate award, but rather to review the exercise
of discretion by the trier of fact.” Guillory v. Lee, 

, 1117 (La.
2009). Accordingly, we will only disturb a general damages award if the record
clearly reveals an abuse of discretion. 

v. Fontenot, 

, 74 (La. 2000)). If we conclude that the award below represents an
abuse of discretion, “then and only then may the prior awards [in factually
analogous cases] be used for determining the highest or lowest amount that
was reasonably within that discretion.” Cone v. Nat’l Emergency Servs., Inc.,

, 1086 (La. 1999); see also Castro v. Estevez, 

, 433
(La. Ct. App. 2014).


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                                  No. 15-30483
      Defendants argue that even after the district court’s remittitur, $400,000
in damages for pain and suffering and loss of enjoyment of life exceeds the
permissible range of discretion. They point out that Berry has not been given
a disability or impairment rating by a doctor, and can still work to support his
family.   The jury and trial court, though, heard and apparently credited
testimony by Berry, his companion, and his treating physician indicating that
the accident has caused him chronic pain severe enough that he can no longer
engage in his primary sources of social interaction and exercise, perform once-
routine tasks around the house or to help his parents, or play actively with his
young children. Trial testimony also supported findings that Berry had gained
over forty pounds and is “not the same person” in terms of personality as before
the accident. Cognizant of the district court’s better view of the evidence in the
context of trial, we do not find that it abused its discretion by failing to reduce
below $400,000 the damages for Berry’s uncontestedly significant pain and loss
of enjoyment of life. And even if we were to look to the comparison cases
Defendants insist are the proper barometer of that discretion, we would find
no case sufficiently analogous to compel further remittitur or a new trial.
                                IV. Conclusion
      This is not the rare case where it is appropriate for an appellate court to
conclude from cold record that the trial court’s entry of a damages award was
an abuse of discretion.    Accordingly, the judgment of the district court is
AFFIRMED.




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