author: GENOVESE, Judge. CONERY, J.,

text:
    Lucie C. FORD v. BITUMINOUS INSURANCE COMPANY, Vital Oil Well Services, LLC, and Audrey E. Tatum.
    No. 12-1453.
    Court of Appeal of Louisiana, Third Circuit.
    June 19, 2013.

      Joseph F. Gaar, Jr., Jason M. Welborn, Willard P. Schieffler, Lucas S. Colligan, Lafayette, LA, Plaintiff/Appellant, Lucie C. Ford.
    Peter F. Caviness, Falgoust, Caviness & Bienvenu, L.L.P., Opelousas, LA, for Defendants/Appellees, Audrey E. Tatum, Vital Oil Well Services, LLC, and Bituminous Casualty Corporation.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, J. DAVID PAINTER, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
   GENOVESE, Judge.

Lin this personal injury case stemming from an automobile accident, Plaintiff, Lu-cie C. Ford, appeals the trial court’s award of general damages. For the following reasons, we affirm as amended.

FACTS AND PROCEDURAL HISTORY

On January 7, 2010, a collision occurred in Alexandria, Louisiana, when Ms. Ford, while stopped at a red light, was hit from behind by Audrey E. Tatum. Ms. Ford filed suit against Mr. Tatum, his employer, Vital Oil Well Services, LLC, and its automobile insurer, Bituminous Casualty Corporation, (collectively Mr. Tatum) for the injuries she claimed resulted from the accident. Prior to trial, the parties stipulated that Mr. Tatum, while acting in the course and scope of his employment, was solely at fault in causing the accident. Accordingly, the matter proceeded to trial by jury on the issue of damages only.

The jury returned a verdict awarding Ms. Ford $45,000.00 for past and future medical expenses, $10,000.00 for past and future physical pain and suffering, $2,000.00 for past and future mental pain and suffering, $8,400.00 for past lost wages, $0.00 for future lost wages, and $5,000.00 for loss of enjoyment of life. A judgment was signed in accordance with the jury verdict on September 10, 2012. Ms. Ford appeals.

ASSIGNMENTS OF ERROR

On appeal, Ms. Ford presents the following assignments of error for our review:

J*
The jury in this matter abused its discretion in awarding [Ms. Ford] only $10,000.00 for past and future pain and suffering.
II.
The jury in this matter abused its discretion in awarding [Ms. Ford] only $2,000.00 for past and future mental pain and suffering.
III.
The jury in this, matter abused its discretion in awarding [Ms. Ford] only $5,000.00 for loss of enjoyment of life.

LAW AND DISCUSSION

This court, in Stelly v. Zurich American Insurance Co., 11-1144, pp. 3-4 (La.App. 3 Cir. 2/1/12), 83 So.3d 1225, 1228, summarized the standard of review applicable to this case as follows:

The Louisiana Supreme Court articulated the standard of review for general damage awards in Duncan v. Kansas City Southern Railway Co., 00-66 (La.10/30/00), 773 So.2d 670, cert. denied, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001), as follows:
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.” Keeth v. Dept. of Pub. Safety & Transp., 618 So.2d 1154, 1160 (La.App. 2 Cir.1993). Vast discretion is accorded the trier of fact in fixing general damage awards. La. Civ.Code art. 2324.1; Hollenbeck v. Oceaneering Int., Inc., 96-0377, p. 13 (La.App. 1 Cir. 11/8/96); 685 So.2d 163, 172. This vast discretion is such that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Thus, the role of the appellate court in reviewing general damage awards 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. Youn, 623 So.2d at 1260. As we explained in Youn:
Reasonable persons frequently disagree about the measure of general | ^damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or decrease the award.
Id. at 1261.
The initial inquiry, in reviewing an award of general damages, is whether the trier of fact abused its discretion in assessing the amount of damages. Cone v. National Emergency Serv. Inc., 99-0934 (La.10/29/99), 747 So.2d 1085, 1089; Reck v. Stevens, 373 So.2d 498 (La.1979). Only after a determination that the trier of fact has abused its “much discretion” is a resort to prior awards appropriate and then only for the purpose of determining the highest or lowest point which is reasonably within that discretion. Coco v. Winston Indus., Inc., 341 So.2d 332 (La.1976).

Duncan, 773 So.2d at 682-83.

Ms. Ford began treating with Dr. Robert Rush on January 12, 2010 (five days after her accident). Dr. Rush diagnosed her injuries as cervical and lumbar strain, sacroiliac strain, left knee trauma, and post-concussion syndrome with headaches. Her treatment with Dr. Rush continued through May 7, 2010. According to Dr. Rush, on her last visit, Ms. Ford’s lower back and hip complaints had resolved, and her neck, sacroiliac strain, and knee were doing well.

On January 20, 2010, Ms. Ford also began treating with Dr. Maurice Gremil-lion. Dr. Gremillion was of the opinion that “she has some sciatica on the left and multiple musculoskeletal contusions and questionable cerebral concussion” as well as low back pain. An MRI, performed on January 22, 2010, revealed bulging discs at L5-S1. Ms. Ford continued to treat with Dr. Gremillion through April 30, 2010, at which time she still exhibited low back pain. Dr. Gremillion released her to return to work on May 10, 2010. His records reflect that he ordered Ms. Ford additional medication on August 6, 2010, due to | continuing complaints of pain. Ms. Ford returned to his office on September 1, 2010, still complaining of lower back pain and related that she was having difficulty walking. In October and November of 2010, Dr. Gremillion again ordered additional pain medication for Ms. Ford. At her last visit on January 28, 2011, Ms. Ford was still complaining of low back pain to Dr. Gremillion.

Ms. Ford underwent physical therapy with Jennifer Watts at Natchez Rehab & Sports Specialists from February 4, 2010, through April 14, 2010. On her last visit, she advised Ms. Watts that she was feeling much better, and she was discharged from therapy.

On December 29, 2010, Ms. Ford went to see Dr. Patrick Juneau. Her primary complaint to Dr. Juneau was “low back pain and some occasional radiating pain down into the left leg.” According to Dr. Juneau, “[s]he also had some tenderness over [her] left knee joint.” Ms. Ford also related the occurrence of daily headaches, which Dr. Juneau diagnosed as post-con-cussional headaches resulting from the accident. At Dr. Juneau’s recommendation, Ms. Ford received three lumbar epidural steroid injections before returning to see him on May 20, 2011. Due to Ms. Ford’s continuing complaints of lumbar pain, Dr. Juneau ordered a diskogram. Based upon the results of the diskogram, Dr. Juneau concluded that Ms. Ford had suffered a myofascial injury to her low back which did not require surgical intervention. On her subsequent visit on October 24, 2011, she had continuing complaints of pain. Because Ms. Ford’s lumbar complaints had not resolved by her final visit on July 11, 2012, Dr. Juneau opined that “she had a chronic myofascial injury in the low back.” He discharged Ms. Ford on that date.

|BPr. Juneau referred Ms. Ford to Dr. Malcolm Stubbs for evaluation of her knee pain. She first saw Dr. Stubbs on February 21, 2011. Dr. Stubbs noted fluid on her knee, crepitus, swelling, pain, and tenderness. An MRI of her left knee performed on March 21, 2011, revealed “a small amount of fluid in the knee and some prepatellar bursitis or swelling or edema[J” Ms. Ford’s second and final visit to Dr. Stubbs was April 21, 2011.

Ms. Ford testified about the nature of her injuries and the effect they had on her. With regards to her back, she explained, “[M]y back is just killing me. It — it doesn’t hurt every day[,] and it may go a week or two without hurting. But then, when it hurts, it hurts.” She testified that when her back is hurting, she is unable to do activities with her children. Additionally, for a period of time, Ms. Ford was traveling nearly two hours to work, then two hours home, which exacerbated her back pain. She testified that she often slept with a TENS unit and that the epidural injections provided limited relief. Ms. Ford also testified that prior to this accident, her mother, who had suffered a stroke and had resultant paralysis, lived with her. Ms. Ford was her caregiver. However, after the accident, because Ms. Ford was unable to take care of her mother, she had to be placed in a retirement home.

Ms. Ford contends that the jury’s award of $17,000.00 in general damages was abusively low. We agree. Notably, the jury awarded Ms. Ford the entirety of the medical expenses she incurred, totaling $45,000.00, which included expenses incurred for medical treatment continuing through July 11, 2012. Thus, the jury felt that Ms. Ford was entitled to recover for medical expenses for her treatment totaling approximately thirty months; however, this award for medical expenses is wholly inconsistent with the general damage award.

| (¡Mr. Tatum strenuously argues that the medical records reflect that Ms. Ford’s injuries had fully resolved after four months. He states, in brief, “the jury was faced with three (3) separate medical specialists, all of whom testified that the injuries Ms. Ford sustained in the accident were completely resolved, that she was pain free[,] and/or that she was fully capable of returning to work without restriction within four (4) months after the accident.” Mr. Tatum also argues that Ms. Ford’s credibility, vel non, was a significant factor in the result reached. Thus, it is his contention that the amount of the general damages awarded for four months is not an abuse of discretion. However, neither the medical records nor the testimony of Ms. Ford evidence a complete resolution of all of her complaints of pain without recurrence within that time frame. The testimony of Dr. Juneau explains the waxing and waning of pain that can be expected as well as the chronic nature of Ms. Ford’s condition, which can only be determined after the passage of time.

Dr. Juneau was questioned as to Mr. Tatum’s assertions that Ms. Ford’s symptoms had resolved after four months as reflected by Dr. Rush’s records and the physical therapy records. In response, Dr. Juneau contrasted the implication that those records indicate that Ms. Ford’s symptoms had totally resolved with what Ms. Juneau conveyed to him. Dr. Juneau explained that “she doesn’t necessarily have pain all the time.” In fact, “it’s common to have these fluctuating times of good periods and bad periods.” In Dr. Juneau’s opinion, “that’s what accounts for her — -her chronic — the chronic nature of her symptoms.”

On the issue of Ms. Ford’s credibility, we acknowledge that she was not completely forthcoming about her prior complaints. However, the injuries alleged by Ms. Ford to have resulted from the subject accident are fully corroborated by |7the medical testimony, and the jury accepted this evidence as establishing the causal connection between the accident and her alleged injuries.

Additionally, this court remains mindful of the standard of review to be employed in this case. Mr. Tatum argues that this case presented two permissible views of the evidence. “On the one hand, the jury could have reasonably concluded that Ms. Ford sustained straining type injuries to her neck, low back[,] and left knee which resolved completely within four (4) months after the accident.” Yet, “[o]n the other hand[,] the jury could have concluded (as Ms. Ford argues) that she sustained a ‘chronic myofascial back injury’ lasting for a duration of thirty (30) months.” Mr. Tatum concludes that “obviously, the jury reached the former conclusion” which mandates an affirmation by this court. We disagree.

Had the jury accepted Mr. Tatum’s argument that the necessary medical treatment for Ms. Ford’s injuries ended May 7, 2010, i.e., after four months, and, consequently, awarded her medical expenses limited to that time frame, then such a factual determination would have been consistent with the jury’s general damage award — but that is not what the jury did. The jury awarded Ms. Ford past and future medical expenses in the amount of $45,000.00, which is considerably more than simply four months of medical treatment and more in line with an approximate thirty-month injury. The jury award of $45,000.00 for past and future medical expenses is wholly inconsistent with, and significantly outweighs, the aggregate $17,000.00 general damage award being appealed. Therefore, we find the general damage award constitutes an abuse of discretion. Thus, we must look to prior awards for the purpose of determining the lowest reasonable award. See Coco, 341 So.2d 332.

Based upon the foregoing, and considering the nature and extent of Ms. Ford’s injuries, as well as the length of her medical treatment and her 18compIaints continuing to the date of trial, we find that the jury’s award of $17,000.00 is abusively low. Considering the facts in this case, and noting the jury’s award of $45,000.00 in past and future medical expenses, we find that the lowest amount that could have reasonably been awarded for general damages is $50,000.00. See Stelly, 83 So.3d 1225. Accordingly, we hereby amend the aggregate general damage award and increase it from $17,000.00 to $50,000.00.

DECREE

For the reasons assigned, we affirm the jury’s award of general damages to Lucie C. Ford, but we amend same to increase this award from $17,000.00 to $50,000.00. The costs of this appeal are assessed to Audrey E. Tatum, Vital Oil Well Services, LLC, and Bituminous Casualty Corporation.

AFFIRMED AS AMENDED.

CONERY, J., concurs in part, dissents in part, and assigns reasons.

CONERY, J.,

concurring in part and dissenting in part.

IH agree with the majority that the verdict should be affirmed, but I disagree with increasing the general damages award. The role of an appellate court in reviewing an award of general damages 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. Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70.

[A] jury, in the exercise of its discretion as factfinder, can reasonably reach the conclusion that a plaintiff has proven his entitlement to recovery of certain medical costs, yet failed to prove that he endured compensable pain and suffering as a result of defendant’s fault. It may often be the case that such a verdict may not withstand review under the abuse of discretion standard. However, it would be inconsistent with the great deference afforded the factfinder by this court and our jurisprudence to state that, as a matter of law, such a verdict must always be erroneous. Rather, a reviewing court faced with a verdict such as the one before us must ask whether the jury’s determination that plaintiff is entitled to certain medical expenses but not to general damages is so inconsistent as to constitute an abuse of discretion. Only after the reviewing court determines that the factfinder has abused its much discretion can that court conduct a de novo review of the record.

Id. at 76. The specific facts of each case are ultimately determinative of whether there has been an abuse of discretion. Id.

The particular facts of this case are that Plaintiff had an extensive medical history prior to this accident. The record further reflects that she was less than honest with her doctors about several issues, and her credibility was at issue. I believe that there were two reasonable views of the evidence. One view, presented 12by Defendants, is that Plaintiff sustained straining type injuries to her neck, low back, and left knee which resolved in 4 months. Another view, presented by Plaintiff, is that she suffered a chronic myofascial back injury lasting for 30 months.

The jury chose to award past and future medical expenses of $45,000 and past lost wages of $8,400.00 (representing four months of lost wages). The general damages award totaled $17,000.00. I do not believe the award of medical expenses is wholly inconsistent with the award for general damages. I disagree with the majority’s finding that, “[T]he jury felt that Ms. Ford was entitled to recover for medical expenses for her treatment totaling approximately thirty months[.]” The majority cannot and should not speculate on what the jury felt.

There are any number of reasons why a jury might award all of the medical expenses claimed but award a conservative amount for general damages. Wainwright, 774 So.2d 70. The fact that the jury awarded $45,000.00 in medical expenses does not equate to a finding that the jury believed Plaintiffs injuries necessitated “continuous” medical treatment for thirty months or continued to suffer from injuries sustained in this accident as opposed to suffering from pre-existing conditions or some other cause. Counsel for Defendant suggested to the jury that they award all of the medical expenses of $45,000.00 so as not to “penalize” Plaintiff for seeking out different medical opinions and exploring all options. The jury award of all of the medical expenses, therefore, was conceded by defense counsel as part of his trial strategy in order to obtain a more reasonable result on the general damage award, which he succeeded in doing.

The issue of Plaintiff’s credibility, or lack thereof, was a serious consideration for the jury. Counsel for Defendant correctly points out in his Supplemental Brief filed on May 13, 2013:

I,.¡Furthermore, despite Ms. Ford’s arguments to the contrary, she did not have “thirty (30) months of active medical treatment”. Her medical treatment from the date of the accident until the trial was irregular, at best, as follows:
a) Ms. Ford treated with Doctors Rush and Gremillion (neither of whom knew of the treatment by the other) from the date of the accident until May 7, 2010. This was a period of four (4) months. She also treated with a physical therapist during this time. The therapist discharged her as pain free on April 14, 2010, and Dr. Rush discharged her as pain free on May 7, 2010;
b) Ms. Ford next saw a psychologist, Dr. John Jolly, on June 29, 2010, for an evaluation for gastric by-pass surgery. According to Ms. Ford, life was good at that time. There was no mention of the accident;
c) Ms. Ford next saw Dr. Andrew Hargroder for the gastric by-pass surgery on August 25, 2010. There was no mention of the accident to Dr. Har-groder then, or at any time before then;
d) Ms. Ford next saw Dr. Gremillion on September 1, 2010. She told him she had been having low back pain for the past three (3) weeks, but did not attribute it to the accident. Instead, she told him it occurred because she had been driving long distances to work during the past three (3) weeks;
e) Ms. Ford did not see a doctor again until four (4) months later, when she saw Dr. Patrick Juneau, III. She saw this doctor on December 29, 2010 at the referral of her attorney. His examination of her was normal, with no objective findings;
f) Dr. Juneau prescribed a course of three (3) epidural steroid injections, because a prior MRI showed a very minimal disc bulge at the LS-S 1 level. Dr. Juneau testified that this bulge was not related to the accident;
g) Dr. Juneau next saw Ms. Ford on May 20, 2011, after the injection. He recommended a discogram to check out the disc bulge. The discogram was, normal. So, Dr. Juneau discharged her in July, 2010. His period of treatment through discharge was about six and one-half (6½) months;
|4h) Ms. Ford saw Dr. Stubbs for knee complaints on two (2) occasions during the time she was seeing Dr. Juneau, specifically on February 21, 2011 and April 21, 2011. He ordered a diagnostic test of the knee (an MRI) which showed mild chondromalacia, a pre-existing condition. Ms. Ford never followed up with him;
i) Ms. Ford returned to Dr. Juneau three (3) months later, on October 24, 2011. Dr. Juneau had no notes on that visit;
j) Ms. Ford returned to Dr. Juneau on July 12, 2012, almost nine (9) months after her last visit. Coincidentally, this visit was only twelve (12) days before trial and five (5) days before his trial deposition was taken. No treatment was rendered on that date.
So, as the Court can see, Ms. Ford did not have thirty (30) months of steady, active medical treatment.

The jury, thus, had more than sufficient evidence upon which to properly assess general damages at a conservative amount of $17,000.00. The jury’s verdict was not manifestly erroneous and should be affirmed.

For all of these reasons, I dissent from the majority’s increase in the general damages award.

      . Ms. Ford formally named Bituminous Insurance Company as a Defendant; however, its answer reflects the proper name of the insurer to be Bituminous Casualty Corporation.

      . Dr. Juneau explained in his deposition that Dr. Rush's diagnosis of a lumbar strain reached in 2010 is different terminology for the same injury. However, "you really have to play that out over time to confirm that diagnosis.” It becomes “chronic” in nature if the symptoms persist "[bjeyond a year.”

      . Dr. Stubbs testified that ”[c]repitus is a palpable sensation of grinding[.]” He explained that when he places his hand on such a knee he can "feel some crunching or grinding sensation!.]”


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    Felicia CLEMENT v. Scott A. CITRON, et al.
    No. 13-63.
    Court of Appeal of Louisiana, Third Circuit.
    June 19, 2013.

      Leon Anthony Crist, Law Offices of Robert D. Ford, Metairie, LA, for Defendants/Appellees, The Hanover Insurance Company, Scott A. Citron, and Hub City Ford, Inc.
    James Paul Lambert, Thomas M. Dai-gle, Lafayette, LA, for Plaintiff/Appellant, Felicia Clement.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SHANNON J. GREMILLION and PHYLLIS M. KEATY, Judges.
   THIBODEAUX, Chief Judge.

[TThe plaintiff, Felicia Clement, appeals a jury verdict and a judgment pursuant to that verdict awarding her inconsistent damages arising from a rear-end collision with the defendant, Scott Citron. For the following reasons, we amend and affirm the judgment of the trial court.

I.

ISSUE

We must decide whether the jury awarded damages so inconsistent as to constitute an abuse of discretion necessitating a de novo review.

II.

FACTS AND PROCEDURAL HISTORY

On June 30, 2009, Ms. Clement, a thirty-one-year-old bank teller, who worked as a night janitor to support herself and her teenaged son, was stopped in traffic when her 1997 Mitsubishi was hit from behind by Mr. Citron. Ms. Clement’s vehicle was knocked into the vehicle stopped in front of her and thus was impacted twice, first from the back and then from the front. Ms. Clement’s vehicle was totaled.

Ms. Clement hit her face on the steering wheel and sustained abrasions and bruises to her left eye, contusions of the head and left shoulder, contusions and swelling of the left knee, cervical injury, and a herniated lumbar disk at L4-5.

Six months after the accident, radiating pain in her back and legs, medically termed radiculopathy, caused Ms. Clement to leave her night job as a | .¿part-time janitor, where she had earned $4,000.00 a year in extra income. Because months of physical therapy and pain medication brought only intermittent relief, Ms. Clement’s orthopedist began discussing epidural steroid injections and surgery in February 2010. Ms. Clement was still undergoing twice-weekly physical therapy sessions in March 2010.

While riding as a back-seat passenger on March 14, 2010, Ms. Clement was in a second automobile accident, wherein she sustained another cervical injury, but alleged no worsening of the lumbar injury. This was confirmed by both of her physicians and the physical therapy reports.

Ms. Clement sued Mr. Citron, his employer, Hub City Ford, Inc., and their liability insurer, The Hanover Insurance Company (collectively referred to as “the defendant”). She settled a separate claim with the driver from the March 2010 accident, and very little is known about that incident, except for the emergency room visit showing a “low” impact to the front of the car.

When steroid injections did not provide any meaningful relief, Ms. Clement left her job at the bank in May of 2011 and underwent an instrumented decompression and fusion for the lumbar disc herniation at L4-5. While the surgery was successful for the most part, at the time of trial a year later in May 2012, Ms. Clement was still under her physician’s care, undergoing physical therapy for a flare-up of lumbar pain. Though she was instructed not to return to the manual labor of janitorial work, her release to return to work in the banking field was anticipated within a few weeks, when the current round of physical therapy was completed. Ms. Clement’s former bank supervisor testified that she would rehire Ms. Clement when something came available. Ms. Clement, who had |sbeen promoted to teller supervisor with a salary of $32,000.00, would have to start over, however, as a teller, which paid $20,000.00 per year.

Following trial, the jury awarded Ms. Clement all past lost wages from both jobs, $41,000.00. It awarded $100,000.00 in past medical expenses, $100,000.00 in future medical expenses, $20,000.00 for future lost earnings, $150,000.00 for pain and suffering, and zero for loss of enjoyment of life.

Ms. Clement’s appeal asserts errors against the jury for inconsistent damage awards, failure to award all past medical expenses, inadequate awards for future medical costs and future earning capacity, and failure to award any amount for loss of enjoyment of life. She also asserts errors against the trial judge for failures to direct the verdict, give additional jury charges, and provide a more specific jury verdict form.

III.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). Errors of law are reviewed de novo. Land v. Vidrine, 10-1342 (La.3/15/11), 62 So.3d 36.

IV.

LAW AND DISCUSSION

Inconsistent Awards

The jury attributed all of Ms. Clement’s past lost wages to the rear-end collision by Mr. Citron on June 30, 2009, by awarding the $41,000.00 she requested. This amount included $32,000.00 for the one year of work lost by Ms. | ¿Clement as a bank teller supervisor from the time of surgery (May 2011) to the time of trial (May 2012); and it included $9,000.00 for the two and one quarter years of lost wages as a part-time janitor, from her resignation in January 2010 to trial in May 2012 ($4,000.00/yr. x 2⅞). Accordingly, the jury found Mr. Citron liable for one hundred percent (100%) of Ms. Clement’s lost wages.

The jury, however, declined to make an award that would pay for the medical treatment and expenses Ms. Clement incurred during that same time frame. Where Ms. Clement proved and documented $174,000.00 in undisputed medical expenses at the time of trial, the jury awarded only $100,000.00. Likewise, the jury awarded only $100,000.00 in future medical expenses, though the calculated cost of her surgeon’s medical plan was almost four times that amount. Finally, the jury made no award for loss of enjoyment of life, though the evidence indicated otherwise.

The manifest error standard of review provides that a jury’s verdict .cannot be reversed unless the court, after reviewing the record in its entirety, finds there to be no reasonable factual basis for the jury’s findings and determines them to be manifestly erroneous or clearly wrong. Stobart, 617 So.2d 880. Where, however, legal error interdicts the fact-finding process, the manifest error standard no longer applies. Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742. In such instances, if the record is complete, the appellate court is charged to ■ make its own independent de novo review of the record. Id.

The supreme court has recognized that inconsistent jury verdicts may, in certain circumstances, constitute such legal error, requiring the appellate court to conduct a de novo review. See Green v. K-Mart Corp., 03-2495 (La.5/25/04), 874 So.2d 838. For example, when the jury-has awarded special damages, but has | ¡¡declined to award general damages, the reviewing court must determine whether the jury’s finding is “so inconsistent as to constitute an abuse of discretion.” Id. (citing Wainwright v. Fontenot, 00-492 (La.10/17/00), 774 So.2d 70). If so, a de novo review is warranted.

Here, we find it difficult to discern the factual conclusions of the jury from the face of the jury verdict form. It is clear that the jury found that Ms. Clement suffered injuries causally related to the accident with Mr. Citron which required medical treatment and would continue to require medical treatment in the future. These conclusions are well-supported by the record. We find, however, that some of the damage awards recorded on the jury verdict form are inconsistent and constitute an abuse of discretion and legal error. Accordingly, we ■will conduct a de novo review of the record.

Mr. Citron admitted fault for the rear-end accident on June BO, 2009, and accepted liability for all causally related damages. Both of Ms. Clement’s physicians testified that Ms. Clement’s back injury and the herniated disc and resulting surgery were causally related to the June 30, 2009 accident with Mr. Citron.

More specifically, following the accident, Ms. Clement went to the emergency room on her own a few times and then treated with Dr. Robert Franklin, a physiatrist and rehabilitation specialist, two weeks after the accident. He treated her conservatively with medication. When that proved unsuccessful, he ordered MRI’s of her neck and back in late August 2009. She had two bulging disks in her cervical spine and a herniated lumbar disk at L4-5. When Dr. Franklin’s conservative treatment did not relieve the pain, Ms. Clement went to Dr. George Williams, an orthopedic surgeon specializing in spines.

|fiDr. Williams began treating Ms. Clement in October 2009 and was still treating her at the time of trial. He testified that Ms. Clement came to him with a relatively pristine spine except for the protruding disk, slipped vertebra, and instability at L4-5. This was causing narrowing of the spinal canal and inflammation of the exiting nerve roots. Dr. Williams testified that the disk herniation or protrusion at L4-5 displayed a “high signal zone” on the MRI which is indicative of a recent and acute traumatic event. The herniation faced the right L5 nerve root that goes down through the buttock, the thigh, and the anterior aspect of the tibial region to the dorsum of the foot.

Dr. Williams stated that Ms. Clement’s history of having no problems before the accident, her complaints of radiating pain from her back to her thigh and calf, and his physical examination of her, were all consistent "with the MRI, and the MRI was consistent with the accident on June 30, 2009.

Dr. Williams treated Ms. Clement with oral medication and with physical therapy to strengthen the core musculature. When epidural steroid injections failed to reheve the inflammation, they began to discuss surgery in the form of a spinal decompression fusion. This consisted of cleaning out the area around the slippage, giving the nerve roots room to exit, and then stabilizing the spine via the insertion of four three-inch screws and bone graft material to prevent the motion that caused the inflammation and pain. Ms. Clement finally left her job at the bank to have the surgery in May 2011. Both Dr. Williams and Dr. Franklin, the only physicians testifying at trial, related Ms. Clements low back injuries, treatments, and surgery to the June 2009 accident with Mr. Citron.

Mr. Citron was not present at trial. His counsel did not call any defense witnesses or present deposition testimony of any kind; he did not order an ^independent medical examination or call any witness to refute the testimony and medical records of Dr. Williams and Dr. Franklin. He argued heavily, however, that the other accident in 2010 intervened between the accident with Mr. Citron in 2009 and Ms. Clement’s surgery in 2011 and caused a significant amount of Ms. Clement’s damages. He did not present any evidence on the mechanics of the second accident or ask Ms. Clement about the kind of vehicles, the speed, position, or point of impact of the vehicles involved; yet the defendant asked the jury to reduce Ms. Clement’s recovery by fifty percent (50%), thereby attributing one half of her damages to the second accident.

The record in this case contained two bound volumes of exhibits, over 500 pages, 485 of which were medical records and documents submitted by Ms. Clement in support of her claims regarding the rear-end collision by Mr. Citron. The single exhibit submitted by the defendant was the emergency room record after the second accident wherein the medical personnel circled “back” as the injured body part. Ms. Clement explained on the stand that she told the personnel that she was already being treated for chronic back and neck pain and had taken medication for it earlier that day. They noted “exacerbation of back and neck pain.” This comprises the entire evidence put on by the defense regarding the second accident. It is well-settled that one who asserts a fact must carry the burden of proving the same by a preponderance of the evidence. Ortega v. Durand, 419 So.2d 541 (La.App. 3 Cir.1982).

In cases where a defendant has attempted to cast doubt on the causal link between the subject accident and the plaintiffs injuries by suggesting that another accident is responsible, this court has repeatedly held that merely raising the fact of another accident is insufficient to deflect causation.

| sIn Turner v. Nationwide Ins. Co., 503 So.2d 734 (La.App. 3 Cir.1987), the defendant argued that the plaintiffs participation in a summer volleyball league caused the recurrence of the plaintiffs muscle spasms, rather than the subject rear-end collision. The court explained:

The burden of proving a superseding intervening cause rests with defendants. The record is void of any evidence of Turner sustaining a particular injury while playing volleyball, and the medical testimony reveals only a possibility that volleyball was involved as a causative factor; conjecture and possibility is insufficient to prove an intervening cause; such intervening cause must be proven by a preponderance of the evidence.

Id. at 737 (emphasis added). See also Menard v. Federated Mut. Ins. Co., 05-85 (La.App. 3 Cir. 6/22/05), 906 So.2d 746, writ denied, 05-1925 (La.3/10/06), 925 So.2d 506.

An intervening cause is one which comes into play after the defendant’s negligent conduct has ceased, but before the plaintiff suffers injury. In situations in which there is an intervening force that comes into play to produce the plaintiffs injury (or more than one cause of an accident), it has generally been held that the initial tortfeasor will not be relieved of the consequences of his or her negligence unless the intervening cause superceded [sic] the original negligence and alone produced the injury.

Adams v. Rhodia, Inc., 07-2110, p. 13-14 (La.5/21/08), 983 So.2d 798, 808 (citations omitted).

It is clear in this case that the March 2010 accident did not supersede Mr. Citron’s negligence and alone produce Ms. Clement’s low back injury. Particularly revealing is that Ms. Clement’s MRI showed a fresh herniation of the disc at the L4-5 two months after the June 2009 accident.

|9In Arcadian Corporation v. Olin Corporation, 01-1060, p. 11 (La.App. 3 Cir. 5/8/02), 824 So.2d 396, 405, writ denied, 02-1930 (La.10/25/02), 827 So.2d 1174, we also examined the cause-in-fact inquiry in the duty-risk analysis. “When there are multiple causes, clearly cause-in-fact exists when the plaintiffs harm would not have occurred absent the specific defendant’s conduct.” Id. at 403 (citing Graves v. Page, 96-2201, p. 9 (La.11/7/97), 703 So.2d 566, 570). When applying this test to the facts, again it is clear that the June 2009 accident with Mr. Citron was the cause-in-fact of Ms. Clement’s ruptured disc. Once the disc was ruptured, the second accident in March 2010 could not be a cause-in-fact of the injury because it cannot be said that Ms. Clement’s injury would not have occurred without the second accident.

The substantial factor test asks whether each of the possible causes “played so important a role in producing the result that responsibility should be imposed upon each item of conduct.” Id. In determining substantial factor, “one must consider whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm.” Id. at 404 (quoting LeJeune v. Allstate Ins. Co., 365 So.2d 471, 475 (La.1978)).

Here, the record shows that Ms. Clement was being actively and continuously treated for the lumbar disc injury from the time of the accident with Mr. Citron in June 2009 until trial in May 2012. Ms. Clement went to the emergency room on June 30, July 5, and July 6, and began treating conservatively with Dr. Franklin in mid July 2009, just two weeks after the accident. She had the MRI in August 2009 and began treating with Dr. Williams in October 2009 and continued through trial. Dr. Williams first prescribed physical therapy twice a |10week. The record reveals that Ms. Clement had thirty-one (31) scheduled physical therapy sessions in all. The twenty-eighth (28th) session was on March 11, 2010.

The second accident occurred three days later on March 14, 2010. Ms. Clement complained only of mid-thoracic pain at her physical therapy session on March 15, the day after the second accident. She continued with two more physical therapy sessions in March, with no more than the usual complaints about the ongoing lumbar pain and radiculopathy. Her thirty-first and last physical therapy session was March 25, 2010.

Dr. Williams’ office notes of February 18, 2010, had already indicated that the physical therapy was not providing the desired relief. His medical “PLAN" on that date was to proceed with lumbar epidural steroid injections and if they provided no relief, to consider surgical options. This plan predated the second accident by a few weeks. Yet, in the defense counsel’s opening statement to the jurors, he told them that steroid injections and surgery were not even considered until after the second accident, and he continued to miss-state these facts and summarize the physician’s testimony throughout trial to fit his unsupported theory regarding the second accident.

Dr. Williams treated Ms. Clement with steroid injections and medication, which provided intermittent relief throughout the remainder of 2010, but the pain always returned. In January 2011, he noted that conservative treatment had failed; he recommended the fusion at L4-5 and he began the process of obtaining authority for the surgery.

In addition to this unbroken chain of treatment by Dr. Williams for the cervical and lumbar injuries from the first accident, Dr. Franklin testified that Ms. Clement returned to him after the second accident for her additional cervical Ininjuries, that she did not complain of any back injuries from the second accident, and that he started a separate chart for the new neck injuries related to the second accident. Thus, Ms. Clement has proved that all of the medical treatment claimed, the medication, physical therapy, steroid injections, and surgery, were due to the negligence of Mr. Citron, not an intervening cause, as Citron’s negligence was the cause-in-fact and the substantial factor in causing her injuries, losses, damages, and expenses.

The jury’s damage awards should have been consistent with each other, and consistent with the evidence, but they were not. We now turn to those awards.

Quantum of Damage Awards

Past Medical Expenses

While attributing all past lost wages to the accident with Mr. Citron, the jury failed to award the medical expenses documented for the same accident and the same period of time. The jury awarded only $100,000.00 in past medical expenses out of the $174,389.00 documented. We believe the jury was influenced by the defendant’s closing statement on causation that was not supported by the evidence. In closing, he specifically asked the jury to reduce the medical expenses incurred after the second accident by fifty percent (50%). Doing the math for them, he asked the jurors to award roughly $94,000.00, comprised of $13,000.00 for all medical expenses incurred prior to the second accident, plus $81,000.00 for \none half of the medical expenses (roughly $162,000.00) incurred after the second accident. This included the cost of the lumbar fusion. Interestingly, the jury awarded $100,000.00 for past medical expenses, just $6,000.00 more than the amount suggested by the defendant in his closing statement.

Because the defendant did not enter evidence regarding the mechanics of the second accident, the jury did not know the speed or weight of the vehicles involved, or the damage to the vehicles or their inhabitants. The only evidence the jury had on the second accident was the above discussed emergency room record. It did contain a diagram of a vehicle showing “low ” impact and showing Ms. Clement as a back-seat passenger. Yet, the jury clearly attributed one half of the cost of the surgery, on the lumbar disc herniated by the double impact collision caused by Mr. Citron in the first accident, to the second accident.

The defendants did not enter Ms. Clement’s medical records from Dr. Franklin on the second accident which would have been easy to obtain. “The failure of a litigant to produce evidence within his reach raises the presumption that the evidence would have been detrimental to his case.” Babineaux v. Black, 396 So.2d 584 (La.App. 3 Cir.1981).

Lancon v. State Farm Mut. Ins. Co., 94-256, pp. 7-8 (La.App. 3 Cir. 10/5/94), 645 So.2d 692, 697, writ denied, 95-153 (La.3/17/95), 651 So.2d 272, involved a similar case involving two accidents, except that the plaintiff was older and had a preexisting arthritic condition before either accident. We explained:

Throughout the trial, the defendants took the position that the June 22 accident did not necessitate Mrs. Lancon’s surgery. On July 29, 1991, just five weeks after the first accident, Mrs. Lan-con’s car was bumped from behind at a traffic light. The defendants contend that none of Mrs. Lancon’s doctors could testify to a |13medical certainty that it was the June 22 accident, as opposed to the July 29 accident, which aggravated the preexisting arthritic condition to such an extent as to require surgery.
The defendants bear the burden of proving that the July 29 accident aggravated Mrs. Lancon’s preexisting condition. Turner v. Nationwide Ins. Co., 503 So.2d 734 (La.App. 3d Cir.1987). The defendants have failed to meet this burden. There is no basis in the record for suggesting that the July 29 accident was anything but minor; the investigating officer classified the accident as “a mild tap.” .... The doctors who testified ultimately attributed the aggravation of Mrs. Lancon’s preexisting injury to the June 22 accident. As this court stated in Turner: “[Cjonjecture and possibility is insufficient to prove an intervening cause; such intervening cause must be proven by a preponderance of the evidence.” 503 So.2d at 737 (citations omitted).

For all of the above stated reasons, we raise Ms. Clement’s award for past medical expenses to the documented and undisputed amount of $174,339.00.

Future Medical Expenses

Dr. Williams presented a medical plan for Ms. Clement which included four annual orthopedic visits and two annual x-rays for ten years; one annual MRI/CT for five years; two annual six-week rounds of physical therapy for four years; Mobic, Flexeril, and Lortab indefinitely, with two annual liver profiles because of the medication, indefinitely. Dr. Williams admitted that these suggestions represented the worst case scenario. The cost of Dr. Williams’ medical plan was not included but was calculated by counsel for Ms. Clement, using a life expectancy of seventy-seven years for the “indefinite” element; his calculations came to $391,000.00. In the alternative, her counsel suggested a reduction in the medication and requested $213,177.00.

The jury did neither and awarded $100,000.00 in future medical expenses. While we observe a tenuous quality in the suggestions made by Ms. |uClement’s attorney, we do not understand the jury’s arrival at its figure either. The record indicates that in the twelve months following surgery, Ms. Clement’s medical expenses approximated $3,400.00. Assuming a life expectancy of forty-three (43) more years, we believe the lowest reasonable amount would be $146,200.00. Accordingly, we raise the award to that amount.

Loss of Enjoyment of Life

The jury awarded $150,000.00 for past, present, and future pain and suffering. However, it awarded nothing for loss of enjoyment of life.

Loss of enjoyment of life “refers to the detrimental alterations of a person’s life or lifestyle or a person’s inability to participate in the activities or pleasures of life that were formerly enjoyed.” Sloan v. Mouton, 11-804, p. 10 (La.App. 3 Cir. 12/07/11), 82 So.3d 364, 372, writ denied, 12-48 (La.3/9/12), 84 So.3d 556 (quoting McGee v. A C And S, Inc., 05-1036, p. 4 (La.7/10/06), 933 So.2d 770, 773). “[A] separate award for loss of enjoyment of life is warranted and is not duplicative of the award for pain and suffering, if the damages resulting from loss of enjoyment of life are sufficiently proven.” Id. In Sloan, we affirmed the trial judge’s additure of $15,000.00 for loss of enjoyment of life where the jury had awarded zero to a plaintiff who had undergone surgery to both hands, had a twenty-five percent disability rating, and could no longer do landscape gardening and home improvement activities.

In Cormier v. Republic Ins. Co., 11-632 (La.App. 3 Cir. 1/18/12), 118 So.3d 16, 2012 WL 147903, we awarded $50,000.00 for disability and loss of enjoyment of life to a plaintiff with a preexisting hearing problem whose independence and social activities were stunted after a cervical fusion causing her a fifteen percent total hsbody impairment. Here, Ms. Clement’s mother testified that she had lived with her daughter and was cared for by her daughter before the accident, but had to move out afterward because Ms. Clement could no longer assist her. Ms. Clement also needed her son’s help in doing household chores. She testified that she had enjoyed dancing and running, but could no longer do those activities. She did however continue to make small trips if her friends did the driving. We award Ms. Clement $80,000.00 for loss of enjoyment of life.

Future Lost Income

The jury awarded $20,000.00 for loss of earning capacity to Ms. Clement, who was thirty-four years old at the time of trial, with a work-life expectancy of thirty-three more years. She requested twenty years of compensation for the loss of the part-time janitorial work at $4,000.00 per year, which came to $80,000.00; and she requested one year for the $12,000.00 differential between the bank teller position which paid $20,000.00 and the teller supervisor position which paid $32,000.00. Her request came to a total of $92,000.00. The Louisiana Supreme Court has stated the law on loss of future earnings as follows:

What plaintiff earned before and after the injury does not constitute the measure. Even if he had been unemployed at the time of the injury he is entitled to an award for impairment or diminution of earning power. And while his earning capacity at the time of the injury is relevant, it is not necessarily determinative of his future ability to earn. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). Damages should be estimated on the injured person’s ability to earn money, rather than what he actually earned before the injury.

Ryan v. Zurich American Ins. Co., 07-2312, p. 8 (La.7/1/08), 988 So.2d 214, 219 (quoting Folse v. Fakouri, 371 So.2d 1120, 1123 (La.1979)).

| ^Here, Ms. Clement’s doctors testified that Ms. Clement should be able to return to work at the bank within a few weeks following trial. Her supervisor testified that she would rehire Ms. Clement when she was able to return to the bank because of her work ethic and her friendly and gregarious personality that the customers liked. Ms. Clement was a teller making $20,000.00 a year at the time of the accident. Since she was apparently going back to that position right away, it was reasonable for the jury to find that the accident had caused her no diminution of earning power with regard to the bank work. The fact that she might have to wait for another supervisor’s position to open up at that same bank was a matter of availability, not impairment.

With regard to the janitorial work, Ms. Clement’s post-accident limitations did rule out that kind of manual labor in the future. However, where just the increase in her income due to her post-accident promotion at the bank was three times the amount she had made as a night janitor ($12,000.00 versus $4,000.00), it was reasonable for the jury to conclude that her overall earning ability was only minimally affected. While the $20,000.00 award was low, we cannot say that it was an abuse of discretion. Thus, we will not disturb the jury’s award for this element of damages.

V.

CONCLUSION

For the foregoing reasons, we increase Ms. Clement’s award for past medical expenses from $100,000.00 to $174,339.00; we increase the award for future medical treatment from $100,000.00 to $146,200.00; and we award 117$30,000.00 for loss of enjoyment of life. Costs of this appeal are assessed to the defendants.

AFFIRMED AS AMENDED.

      . Ms. Clement had sustained bulging discs in two locations in her cervical spine in the accident with Mr. Citron, pursuant to the cervical MRI done in August 2009, but a new MRI done after the 2010 accident showed a cervical herniation.

      . Having found that the jury’s awards are so inconsistent as to constitute an abuse of discretion, we will adjust each award accordingly and pretermit the errors asserted against the trial judge.


author: GREMILLION, Judge.

text:
    Kyi LORMAND v. LOUISIANA STATE RACING COMMISSION.
    No. 13-143.
    Court of Appeal of Louisiana, Third Circuit.
    June 19, 2013.
    See also 116 So.3d 1029, 2013 WL 3013885.

      Holden Hoggatt, Hoggatt Law Group, APLC, Lafayette, LA, for Plaintiff/Appellant, Kyi Lormand.
    Rhea P. Loney, Assistant Attorney General, New Orleans, LA, for Defendant/Ap-pellee, Louisiana State Racing Commission.
    Court composed of J. DAVID PAINTER, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GREMILLION, Judge.

liKyi Lormand appeals the trial court’s decision affirming the Louisiana State Racing Commission’s decision to suspend him from horse training for three years and fine him $2,500 because a horse he trained tested positive for dermorphin, an opiod naturally found in the skins of South American frogs. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

On May 16, 2012, He’s A Slewvescent, a horse owned and trained by Lormand, finished second in a race at Evangeline Downs in St. Landry Parish. Routine blood and urine samples were obtained from He’s A Slewvescent. It is undisputed that the horse’s blood and urine tested positive for dermorphin. Lormand contends that he contacted the horse’s veterinarian, Dr. Kyle Hebert, about some respiratory difficulties the horse had, and that Dr. Hebert administered an injection of Lasix and “an herbal enhancement.” While he did not accuse Dr. Hebert explicitly, Lormand offered no other explanation for how the horse was administered der-morphin.

Lormand was advised of his right to have the results subjected to split sample testing by a referee laboratory. Only one referee laboratory was offering such split sample testing. Lormand exercised his right, and the referee laboratory reported the samples tested positive for dermor-phin.

Lormand was suspended by the stewards and fined $1,000. The stewards also referred Lormand to the Louisiana Racing Commission for further disciplinary action. The Commission met and heard Lor-mand’s adjudication on September 28, 2012. Lormand appeared before the Commission in proper person. He stipulated to the chain of custody of the samples taken from the horse, that the laboratory l2found dermorphin in the samples, and “that [he had] no problem with those findings and that [he stipulated to] the introduction of [the] positive report and the science behind that particular report.” The written stipulation merely provided that Mr. Lormand stipulated to the chain of custody of the samples.

The commission heard two days of testimony and argument in several cases, all of which involved actions against trainers over the alleged use of dermorphin. Decisions in the cases were rendered by the commission after all cases had been heard. The commission handed down the suspension and fíne to Lormand, who sought judicial review before the Twenty-seventh Judicial District Court. Lormand’s case was consolidated for review with that of Anthony C. Agilar, whose matter has also been consolidated with Lormand’s on appeal. The trial court affirmed the commission’s decision. This appeal followed.

ASSIGNMENTS OF ERROR

Lormand assigns the following as errors of the trial court:

1. That the Trial Court found that the altered record filed by the Commission with the Trial Court was “the complete record of the proceeding” as required and contemplated by La R.S. 49:964;
2. That the Trial Court found that the Commission may introduce and rely upon evidence admitted at the Commission proceeding but may omit and withhold the same evidence regarding Dermorphin from the “entire record” required for judicial review, including the basis for stipulations, relevant scientific evidence, relevant testimony, and exculpatory documentary evidence when such evidence affects substantial rights of the Appellants;
3. That the Trial Court found that the stipulations made by Appellants for purposes of the agency hearing may function to render incompetent evidence competent for purposes of Judicial Review;
4. The Trial Court did not disregard the purported stipulations as incompetent evidence despite the fact that the stipulations were not properly identified, marked and filed into the record;
[s5. That the Trial Court denied Appellants’ Motion to Strike the record as in violation of La.R.S. 49:964;
6. That the Trial Court allowed the Commission to modify, alter, re-create, withhold and manipulate the Record submitted to the Trial Court such that it was unfairly and prejudicially different from the true record of the proceeding;
7. That the Commission complied with the mandate that the Commission allow the parties to choose from a list of referee laboratories and that substantial rights of the Appellants were not thereby prejudiced;
8. That the Trial Court found that substantial rights of the Appellants were not unfairly prejudiced by the Commission’s failure, prior to the hearing, to make available and provide actual notice of the evidence to be used against Appellants, particularly when incorporated by reference to other evidence not provided nor made available to Appellants;
9. That the Trial Court was not required to disregard incompetent evidence in its review of the agency record, including purported scientific evidence which does not satisfy the constitutional requirements governing the admissibility of scientific evidence;
10. That the agency may allow introduction of evidence obtained in violation of the Rules of Racing, which imposes only a minimal standard of Due Process;
11. That the Trial Court found that the Commission did not consider and weigh the withheld Dermorphin evidence and testimony prior to issuing its ruling despite having received the evidence out of order, in a consolidated manner where all the Dermophin-relat-ed matters were heard together and upon irregular procedure, and all of the rulings were issued after having heard the entirety of the evidence regarding Dermorphin;
12. That the Trial Court found that the purported stipulations extended to waive the right to select an authorized referee laboratory;
13. The Trial Court allowed the Commission to require evidence offered by licensees at an agency hearing to meet a higher standard of admissibility than is required of evidence offered by the Commission, specifically that the licensees’ evidence be certified or notarized as a condition of admissibility whereas the evidence introduced by the Commission was neither properly certified, introduced, nor notarized; and,
|414. That the Trial Court affirmed the agency decision without evidence in the record showing that the Commission took Notice of Judicially Cognizable facts or otherwise verified the reliability or methodology of the new Dermorphin test.

ANALYSIS

Horse racing is heavily regulated. The Louisiana Legislature has created a system of regulations found in Title 4, Chapter 4, of the Louisiana Revised Statutes. The scheme requires the licensure of horse trainers, jockeys, and owners. The Louisiana State Racing Commission was created to fulfill the objectives of the regulatory scheme. The commission is responsible for promulgating regulations governing racing and investigating and resolving alleged violations.

The regulations that apply to pharmaceuticals administered to horses are found in La.Admin.Code tit. 35, § 1.1501 et seq. Section 1501(A) provides:

Except as a licensed veterinarian may otherwise be permitted by law or in his or her general veterinary practice, the administration, use, application and/or possession of any narcotic, stimulant, depressant, or local anesthetic are prohibited within the confines of a race track or within its stables, buildings, sheds or grounds, or within an auxiliary stable area (as defined in § 5705) where horses are lodged or kept which are eligible to race over a race track of any association holding a race meeting.

Section 1505 governs the administration of anti-inflammatory medication, which may not be administered within twenty-four hours of a race in which the horse is entered. “Bleeder” medication is regulated by Section 1507 and may not be administered within four hours of a race the horse is to run. Allowed bleeder medication is listed in Section 1509.

|fiChapter 17 of Title 35, part I, of the Louisiana Administrative Code is entitled, “Corrupt and Prohibited Practices.” This chapter, too, provides for the administration of drugs to horses. Section 1711 provides,

No medication shall be administered to a horse to be entered or entered to race as may be provided in Chapter 15. If it is necessary to do so, it must be reported to the stewards by the trainer and the horse shall be scratched, if entered, as ineligible to run.

Only substances approved by the United States Food and Drug Administration for human or animal use, ingestion or injection, or for testing purposes are permitted. La.Admin.Code tit. 35, § 1.1707. Controlled medication is permitted under the conditions established in Chapter 15. La.Admin.Code tit. 35, § 1.1725. Owners, trainers, and grooms must guard horses to prevent substances not permitted in Chapter 15 from being administered to the horses they have in their care. La.Admin.Code tit. 35, § 1.1727.

Prohibited drugs and substances are assigned to five classes, as defined in Uniform Classification Guidelines for Foreign Substances, a publication of the Association of Racing Commissioners International (RCI). La.Admin.Code tit. 35, § 1.1795. Unknown or unidentified substances not listed in the RCI guidelines are to be appropriately classified by the state chemist. Id. The RCI guidelines are used to determine the appropriate sanction for a violation. See La.Admin.Code tit. 35, § I. 1797. A Class I violation is the most severe, punishable by a license suspension of not less than one year and not more than five years, a fine of $5,000, and redistribution of the purse the horse won. Id. Dermorphin was classified by RCI as a Class I substance prior to the date of He’s A Slewvescent’s race.

Horses are tested in a detention barn. La.Admin.Code tit. 35, § 1.1753. The samples to be tested are split into roughly equal portions. La.Admin.Code tit. 35, § IJ.1775. One portion is sent to the state chemist for analysis; the other is held for “referee” testing should the state chemist’s analysis conclude that prohibited substances were detected. Id. A positive finding by the state chemist is prima facie evidence that prohibited substances have been administered to a horse and that the owner, trainer, and/or groom has been negligent in the handling of the horse. La.Admin.Code tit. 35, § 1.1729.

Lormand’s first six assignments of error address alleged irregularities in the record. The proceedings held by the commission on September 27-28, 2012, all concerned alleged Class I violations involving dermorphin. The commission heard evidence in every case before addressing its findings in the individual cases. When the matter came before the trial court on judicial review, only the portion of the record the commission found relevant to Lor-mand’s case was included.

Louisiana Revised Statute 49:964, part of the Administrative Procedure Act, governs judicial review of administrative adjudications. Section 964 requires that the review be “confined to the record.” “In cases of alleged irregularities in procedure before the agency, not shown in the record, proof thereon may be taken in the court.” Id. The reviewing trial court may reverse the agency’s decision if the appellant’s substantive rights have been prejudiced because the agency’s findings are in violation of statutory or constitutional provisions; in excess of the agency’s statutory authority; made upon unlawful procedure; affected by other error of law; arbitrary or capricious or characterized by an abuse of, or clearly unwarranted exercise of, discretion; or not supported and sustained by a preponderance of the evidence. In determining whether the adjudication was supported and sustained by a preponderance of the evidence, the trial court is 17directed to make its own findings of fact, giving due regard to the agency’s determination of credibility issues. Id.

Lormand stipulated to the chain of custody of the samples taken from He’s A Slewvescent, the positive tests for dermor-phin, and “the science behind those tests.” The trial court found on its review that the stipulation essentially obviated the need for further inquiry of the commission’s findings. We agree.

Stipulations have the effect of a judicial admission and are binding upon parties and the trial court when they are not in derogation of law. R.J. D’Hemec- ourt Petroleum, Inc. v. McNamara, 444 So.2d 600 (La.1983), cert. denied, 469 U.S. 820, 105 S.Ct. 92, 83 L.Ed.2d 39 (1984). Thus, the facts and record the trial court had before it were those portions specifically relevant to Lormand’s case, including the stipulation that dermorphin was detected in his horse’s samples. Lormand stipulated to the science behind the sampling and testing.

The trainer is the “absolute insurer” of the horse’s condition. La.R.S. 4:150. Substances that are not permitted are, by exclusion, prohibited under the regulations governing horse racing. Dermor-phin is not a permitted substance. Once Lormand stipulated to the presence of dermorphin in the horse’s samples, the commission had no need of any technical testimony on the issue of dermorphin. Lormand stipulated to the presence of a Class I drug in his horse’s system.

The stipulation also obviates consideration of assignments of error 8, 9, 10, 11, and 14, all of which challenge the competency of the evidence presented to the commission. The only relevant evidence presented to the commission was Lor-mand’s stipulation to a positive finding of dermorphin in He’s A Slewvescent’s system.

| ^Assignment 7 argues that the trial court erred in finding that the commission fulfilled its mandate to allow Lormand to choose from a list of referee laboratories to conduct a split sample test. The requirement is found in La.Admin.Code tit. 35, § 1.1775. It provides in pertinent part, “The commission shall provide a list of referee laboratories which must be able to demonstrate competency for that drug or substance at the estimated concentration reported by the primary laboratory, from which a trainer must select one.” The commission has been authorized to choose referee laboratories. In determining which laboratories to include, the commission must have discretion. If only one laboratory is deemed competent to referee samples, or if only one laboratory agrees to act as a referee laboratory, that certainly cannot invalidate the procedure. The testing must take place. Accordingly, we reject Lormand’s assignment of error 7.

Any discussion of Lormand’s assignment of error 12 is also obviated.

By assignment of error 13, Lormand challenges a commission rule requiring that the evidence he wished to introduce be certified or notarized before it is admitted. Lormand failed to brief this issue in violation of Uniform Rules — Courts of Appeal, Rule 1-3. Furthermore, Lormand failed to identify any evidence that he wanted to introduce and was not allowed to, or that he. attempted to introduce at the adjudication hearing and was not allowed to. No such attempt was made on the record.

CONCLUSION

Under the racing regulations and statutes, substances not permitted are prohibited. Dermorphin is not permitted. The trainer, as the “absolute insurer” of the condition of his horse, bears responsibility for any prohibited substances detected.

|9The decision of the trial court is affirmed. All costs of this appeal are taxed to appellant, Kyi Lormand.

AFFIRMED.

      . "Bleeders" are horses that have suffered exercise — induced pulmonary hemorrhaging. La.Admin.Code tit. 35, § 1.1507.


text:
    Dione W. DAVID v. Richard G. DAVID.
    No. 13-171.
    Court of Appeal of Louisiana, Third Circuit.
    June 19, 2013.
    Ed W. Bankston, Attorney at Law, Lafayette, LA, for Defendant/Appellant, Richard G. David.
    L.E. “Tony” Morrow, Jr., Attorney at Law, Lafayette, LA, for Plaintiff/Appellee, Dione W. David.
    Court composed of J. DAVID PAINTER, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GREMILLION, Judge.

hThe defendant/appellant, Richard G. David, appeals the trial court’s February 14, 2013 judgment awarding the plaintiff/appellee, Dione W. David, $67,278.90 for contempt, damages, attorney’s fees, and court costs. For the following reasons, we reverse and vacate the judgment and remand with instructions.

FACTUAL AND PROCEDURAL BACKGROUND

Richard and Dione were married in 1973 and divorced in November 2009. The former spouses’ substantial property was partitioned in a judgment rendered on December 12, 2011. Richard appealed the partition, and we recently rendered a judgment affirming the partition as amended. David v. David, 12-1051 (La.App. 3 Cir. 4/10/13), 117 So.3d 148, 2013 WL 1438021.

On November 5, 2012, the trial court issued a judgment against Richard for contempt, money damages of $24,663.50 and $32,750.00, attorney’s fees of $1,500.00, and court costs and ordered Richard to pay within fifteen days or face incarceration for ninety days. On November 14, 2012, Richard suspensively appealed the November 5, 2012 judgment. The trial court granted the appeal on November 21, 2012, and set bond in the amount of $54,413.50. Bond was provided on January 9, 2013, thereby perfecting the appeal. Although Richard has several appeals pending before this court, it does not appear that this appeal was ever lodged with this court. On January 7, 2013, Dione filed a Motion and Order for Expedited Hearing on Previously Filed Motions. The hearing was scheduled for February 8, 2013.

The minutes of the February 8, 2013 hearing state:

|2The Court, after hearing testimony presented stated that he finds the appeal to be devolutive and not suspensive and any order to pay money in accordance with the Judgment is not suspended. The court stated the granting of the suspensive appeal was in error and the Court intends to rescind it.
The Court grants the Judgment in the full amount of $67,278.90 executory on February 14, 2013 by noon or serve ninety (90) days in the parish jail.

On February 25, 2013, Richard appealed the February 14, 2013 judgment. On February 27, 2013, Richard filed for a supervisory writ with this court. We granted this writ, finding that it was erroneous for the trial court to order jail time for failure to pay a money judgment. We vacated the portion of the trial court’s ruling issuing a warrant for Richard’s arrest and imprisonment. See David v. David, an unpublished writ bearing docket number 13-202 (La.App. 3 Cir. 3/13/13). Richard assigns as error the trial court’s rehearing of the matter on February 8, 2013, because a suspensive appeal had already been perfected from the November 5, 2012 judgment. We agree.

DISCUSSION

Louisiana Code of Civil Procedure Article 2088 states in pertinent part:

A. The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal[.]

Louisiana Code of Civil Procedure Article 2127 instructs that the clerk of the trial court is tasked with preparing the appellate record and “shall cause it to be lodged with the appellate court on or before the return day or any extension thereof.”

|;iIn its February 14, 2013 judgment, the trial court provided in part (footnotes omitted):

There is an existing Judgment ordering Defendant, Richard David, to pay certain amounts in reimbursements and repayment for rental fees collected by him due to Plaintiff, Dione David. Defendant, Richard David has taken a de-volutive appeal in this matter, which does not suspend the payment of these amounts. Dione David has each month, in compliance with the Judgment, sent a money order by certified mail return-receipt to Mr. David fulfilling her obligation in repaying certain balancing amounts as ordered by the Court. Each of these certified letters with money orders have been refused by Mr. David and returned, as refused on receipt.
All of the foregoing testimony and evidence was offered and considered in the Judgment signed by this Court on November 5, 2012.

Once the order of appeal was granted and the bond furnished (in a suspensive appeal), the trial court was divested of jurisdiction and could not rescind the perfected appeal filed on November 14, 2012. See Goodwin v. Tilley, 01-1280 (La.App. 3 Cir. 10/31/01), 799 So.2d 768; Safeco Ins. Co. of America v. Chrysler Corp., 01-1641 (La.App. 3 Cir. 7/31/02), 834 So.2d 1026. The trial court’s February 14, 2013 judgment is, therefore, null for lack of jurisdiction and is hereby, vacated.

CONCLUSION

The trial court’s February 14, 2013 judgment is null and is vacated. The clerk of the Sixteenth Judicial District Court is ordered to lodge the record of Richard’s appeal of the November 5, 2012 judgment.

REVERSED; JUDGMENT VACATED, CLERK OF COURT INSTRUCTED TO LODGE RECORD.