author: SAUNDERS, Judge.

text:
    George Raymond WILLIAMS, M.D. v. SIF CONSULTANTS OF LOUISIANA, INC.
    16-343
    Court of Appeal of Louisiana, Third Circuit.
    12/29/2016
    Rehearing Denied February 1, 2017

      John S. Bradford, William B. Monk, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., P.O. Box 2900, One Lakeside Plaza, Fourth Floor, Lake Charles, LA 70601, (337) 436-9491, COUNSEL FOR PLAINTIFF/APPEL-LEE: Orthopaedic Surgery, A Profession-alMedical, LLC, George Raymond Williams, M.D.
    Charles Thach Curtis Jr., Gerard George Metzger, Attorneys at Law, 829 Baronne Street, New Orleans, LA 70113, (504) 581-9322, COUNSEL FOR DEFENDANT/APPELLEE: Med-Comp USA, Inc.
    Patrick A. Juneau Jr., The Juneau Firm, Post Office Drawer 51268, Lafayette, LA 70505-1268, (337) 269-0052, COUNSEL FOR OTHER APPELLEE: Patrick Juneau, Special Master
    Patrick C. Morrow, James P. Ryan, Morrow, Morrow, Ryan & Bassett, P.O. Box 1787, Opelousas, LA 70570, (337) 948-4483, COUNSEL FOR PLAINTIFF/AP-PELLEE: George Raymond Williams, M.D., Orthopaedic Surgery, A Profession-alMedical, LLC
    Stephen B. Murray, Stephen B. Murray, Jr., Arthur M. Murray, Nicole A. Murray-Ieyoub, Murray Law Firm, 650 Poydras Street, Ste 2150, New Orleans, LA 70130, (504) 525-8100, COUNSEL FOR PLAINTIFF/APPELLEE: George Raymond Williams, M.D„ Orthopaedic Surgery, A ProfessionalMedical, LLC
    Larry Lane Roy, Brown Sims, 600 Jefferson St., Suite 800, Lafayette, LA 70501, (337) 484-1240, COUNSEL FOR DEFENDANT/APPELLEE: Bestcomp, Inc.
    Randall Kurt Theunissen, Allen & Gooch, P.O. Box 81129, Lafayette, LA 70598-1129, (337) 291-1000, COUNSEL FOR DEFENDANT/APPELLANT: Homeland Ins. Co. of New York
    Janice Bertucci Unland, Rabalais, Un-land, 1404 Greengate Dr., #110, Coving-ton, LA 70433-5272, (985) 893-9900, COUNSEL FOR DEFENDANT/APPEL-LEE: Risk Management Services
    Steven William Usdin, Barrasso, Usdin, Kupperman, 909 Poydras St., #2400, New Orleans, LA 70112, (504) 589-9700, COUNSEL FOR DEFENDANT/APPEL-LEE: Executive Risk Specialty Ins. Co.
    Martin A. Stem, E. Paige Sensenbren-ner, Raymond P. Ward, Adams & Reese LLP, 701 Poydras St., Suite 4500, New Orleans, LA 70139, (504) 581-3234, COUNSEL FOR DEFENDANT/APPELLANT: Homeland Ins. Co. of New York
    Thomas A. Filo, Somer G. Brown, Michael K. Cox, Cox, Cox, Filo, Camel & Wilson, L.L.C., 723 Broad Street, Lake Charles, LA 70601, (337) 436-6611, COUNSEL FOR PLAINTIFF/APPEL-LEE: George Raymond Williams, M.D., Orthopaedic Surgery, A ProfessionalMedical, LLC
    Michael E. Parker, Allen & Gooch, P.O. Box 81129, Lafayette, LA 70598-1129, (337) 291-1000, COUNSEL FOR DEFENDANT/APPELLANT: Homeland Ins. Co. of New York
    Cynthia J. Thomas, Galloway, Johnson, et ah, 3 Sanctuary Blvd., Suite 301, Man-derville, LA 70471, (985) 674-6710, COUNSEL FOR DEFENDANT/APPELLEE: SIF Consultants of Louisiana, Inc.
    John Mark Fezio, Stone, Pigman, et al., 546 Carondelet St., New Orleans, LA 70130, (504) 581-3200, COUNSEL FOR DEFENDANT/APPELLEE: Cor Vel Corp.
    Michael J. Rosen, Peter F. Lovato, Skarzynksi Black, LLP, 205 N. Michigan Ave., Ste 2600, Chicago, IL 60601, (312) 946-4200, COUNSEL FOR DEFENDANT/APPELLANT: Homeland Ins. Co. of New York
    Daniel J. Layden, Ronald P. Schiller., Hangley, Aronchick, Segal, One Logan Square, 27th Floor, Philadelphia, PA 19103, COUNSEL FOR DEFENDANT/APPELLEE: Risk Management Services
    Court composed of Sylvia R. Cooks, John D. Saunders, and John E. Conery, Judges.
   SAUNDERS, Judge.

| ¶ This is a class action wherein the plaintiff class filed suit against two different insurance companies under La. R.S. 22:1269. The plaintiff class asserted claims for damages under statute prohibiting certain conduct by preferred provider organization.

The plaintiff class previously moved for and was granted summary judgment against one of the insurance companies. The case settled while that first insurance company’s application for writs to our Louisiana Supreme Court was pending. In the settlement, the plaintiff class reserved all rights to pursue any claims against the second insurance company.

The plaintiff class then moved for and was granted a motion for summary judgment against the second insurance company. The trial court granted the motion. The second insurance company appeals this decision.

FACTS AND PROCEDURAL HISTORY:

The plaintiff class of medical providers filed suit against Executive Risk Specialty Insurance Company (Executive Risk) and Homeland Insurance Company of New York (Homeland) under the direct action statute. Executive Risk and Homeland had each issued a claims-made errors and omissions policy to CorVel, Corp. (CorVel) during consecutive time periods. Executive Risk issued policies to CorVel for annual periods from October 31, 1999, to October 31, 2005. Homeland issued policies for annual periods from October 31, 2005. CorV-el settled with the plaintiff class for failure to comply with the mandatory notice provisions of billing discounts in the Louisiana PPO Act, La.R.S. 40:2203.1.

After the trial court certified the plaintiff class and this court upheld that certification, a motion for partial summary judgment was filed by the plaintiff class against Executive Risk. The trial court granted the motion for partial summary | ¿judgment on the issue of coverage. This court, in Williams v. SIF Consultants of Louisiana, Inc., 13-972 (La.App. 3 Cir. 2/26/14), 133 So.3d 707, affirmed the trial court. While an application for writs to our Louisiana Supreme Court was pending, the plaintiff class settled with Executive Risk, but reserved it rights against Homeland.

Thereafter, the plaintiff class filed a motion for summary judgment against Homeland. The trial court granted the motion. Homeland appeals the granting of the plaintiff class’ motions for summary judgment, raising the three assignments of error that follow:

ASSIGNMENTS OF ERROR:

1.The trial court’s judgment is contrary to the principle of issue preclusion embodied in Louisiana’s res ju-dicata statute, La. R.S. 13:4231(1).
2. The trial court abused its discretion in failing to apply judicial estoppel, thus allowing plaintiffs to take contrary positions in obtaining two contradictory summary judgments.
3. The trial court committed legal error in granting plaintiffs’ motion for summary judgment against Homeland despite a number of genuinely disputed issues of material fact.

ASSIGNMENT OF ERROR NUMBER ONE:

Homeland asserts, in its first assignment of error, that the trial court’s judgment was erroneous due to the principle of issue preclusion under La. R.S. 13:4231(1). We find no merit to this assertion.

DE NOVO REVIEW

Louisiana Revised Statutes 13:4231 states:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or Roccurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Our Louisiana Supreme Court, in Burguieres v. Pollingue, 02-1385, p. 8 (La. 2/25/03), 843 So.2d 1049, 1053, stated:

A reading of La. R.S. 13:4231 reveals that a second action is precluded when all of the following are satisfied: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation.

In the ease before us, Homeland argues that a previous opinion of this court affirming the grant of a motion for summary judgment against another defendant, Executive Risk, finding that Executive Risk’s policy provides coverage to the plaintiffs’ claims, renders plaintiffs’ assertion that Homeland’s policy provides coverage to the plaintiffs’ claims barred under res judi-cata. We find this argument to be without merit.

Homeland is not the same party as Executive Risk. However, courts have found that if there exists an “identity of parties,” res judicata can apply. “Identity of parties exists whenever the same parties, their successors, or others appear so long as they share the same ‘quality as parties.” Mandalay Oil & Gas, L.L.C. v. Energy Development Corp., 01-993, pp. 16-17 (La.App. 1 Cir.), 880 So.2d 129, 140.

| .Homeland argues that being a party to the litigation that produces the preclusive judgment satisfies the “identity of parties” requirement citing Williams v. Orleans Levee Dist., 09-2637 (La. 4/5/10), 31 So.3d 1048. We find no such absolute in our reading of Williams. In Williams, our supreme court dealt with a discharged employee who was attempting to relitigate whether he was improperly discharged. The Williams plaintiff brought a complaint before the Civil Service Commission. The commission found that the employee’s behavior justified discipline and eventually suspended him for thirty days. The Orleans Levee District and the employee both appealed to the First Circuit. The First Circuit found that the employee “intentionally and purposefully disregarded the established procedures for an employee to pursue his grievance by using legal counsel and television media to interrogate and expose the appointing authority to embarrassment and ridicule.” Williams v. Orleans Levee Dist., Bd. of Comm’rs, 00-297, p. 6 (La.App. 1 Cir. 3/28/01), 784 So.2d 657, 660, writ denied, 01-1730 (La. 9/14/01), 796 So.2d 686. As such, the First Circuit found that the employee was reasonably terminated based on insubordination, and writs were denied in that first case.

While the first case was pending before the commission, prior to First Circuit’s ruling, the employee filed several suits for various claims in district court that were eventually consolidated against the Orleans Levee District, its board of commissioners, and the State. Once the First Circuit’s opinion finding that the employee was reasonably terminated was final, the Orleans Levee District and the State filed a motion in the subsequent consolidated suits against them contending that those suits were barred by res judicata.

Our supreme court found that res judi-cata applied to both the claims against the Orleans Levee District and the State even though the State was not a party to |sthe first proceeding starting in the commission and ending in the First Circuit. Homeland cites the following language from, .the Williams case for its proposition that being a party to the litigation that produces the preclusive judgment satisfies the “identity of parties” requirement:

[T]he preclusive effect of the previous judgment is not being used against a nonparty to the litigation. The respondent is not being precluded from contesting a matter that he has not had full and fair opportunity to litigate. To the contrary, the respondent was a party to the litigation in which it was determined that he was fired for cause.

Williams, 31 So.3d at 1049.

Homeland reads this language in Williams to stand for its proposition. We do not share in this strained interpretation.

It is quite clear that the language cited above references the fact that the first matter decided by the First Circuit was fully litigated by the employee, i.e., whether he was wrongfully discharged. The reason why our supreme court found that the employee’s suits against the Orleans Levee District and the State were barred by res judicata is because the plaintiff already litigated the issue of whether he was wrongly terminated, not because he was a party to the matter.

Accordingly, we find that Homeland does not “share the same ‘quality’ ,as parties” with Executive Risk so as to have “identity of parties” as required to apply res judicata. Mandalay Oil & Gas, L.L.C., 880 So.2d at 140. Homeland is clearly not Executive Risk and puts forth no reasoning why it can, meet the identity of parties requirement under La. R.S. 13:4231.

Moreover, the trial court’s judgment affirmed by this court in Williams, 133 So.3d 707, states that “the Plaintiff. Class’s Motion for Partial Summary Judgment Against Defendant Executive Risk Specialty Insurance Company on the Issue of Coverage is hereby GRANTED. The Court finds that the Executive Risk Specialty Insurance Company errors and omissions policy at issue provides coverage for the | BPlaintiff Class’s claims.” That judgment of the trial court, affirmed by this court, applies to Executive Risk and its policy, not Homeland and its policy.

Homeland is an entirely different entity with an entirely different policy. In this appeal, we are asked to decide the merits of an entirely new argument as to how that entirely different policy between the plaintiff class and an entirely different entity provides coverage. Accordingly, this matter does not arise “out of the transaction or occurrence that was the subject matter.” Burguieres, 843 So.2d at 1053.

Given the above, we find no merit to Homeland’s first assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO:

In its second assignment of error, Homeland contends that the trial court abused its discretion in failing to apply judicial estoppel, thus allowing plaintiffs to take contrary positions in obtaining two contradictory summary judgments. We do not agree.

In Miller v. Conagra, Inc., 08-21 (La. 9/8/08), 991 So.2d 445, our Louisiana.Supreme Court stated:

[T]he Supreme Court of the United States has generally described judicial estoppel as an equitable doctrine designed to protect the integrity of the judicial process by .prohibiting parties from deliberately changing positions according to the exigencies of the moment. New Hampshire v. Maine, 532 U.S. 742, 749-50, 121 S.Ct. 1808, 1814-15, 149 L.Ed.2d 968 (2001). Because it is an equitable doctrine, it is invoked at the court’s discretion. Id. at 750, 121 S.Ct. at 1815.

Miller, 991 So.2d at 452.

In New Hampshire v. Maine, the United States Supreme Court articulated three non-exclusive but typically existing factors for determining whether judicial estoppel should apply:

First, a party’s later position must be “clearly inconsistent” with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, |7so that judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or the second court was misled,” Edwards [v. Aetna Life Ins. Co.], 690 F.2d [595], 599 (6th Cir.Mich., 1982). Absent success in a prior proceeding, a party’s later inconsistent position introduces no “risk of inconsistent court determinations,” United States v. C.I.T. Constr. Inc., 944 F.2d 253, 259 (C.A.5 1991), and thus poses little threat to judicial integrity. A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.
In enumerating these factors, we do not establish inflexible prerequisites or an exhaustive formula for determining the applicability of judicial es-toppel. Additional considerations may inform the doctrine’s application in specific factual contexts.
New Hampshire v. Maine, 532 U.S. at 750-51, 121 S.Ct. at 1815 (some citations omitted).

State ex rel. A.L., 09-1565, pp. 6-7 (La. App. 3 Cir. 4/7/10), 34 So.3d 416, 420.

In this case, while it is true that the plaintiffs’ position in this summary judgment is different than previously, this inconsistency is based on an argument the merits of which have not been adjudicated. Their previous position was that a “claim,” as defined in Executive Risk’s policy, was first filed during the time when Executive Risk’s policy was in effect. Now, they are arguing that a “claim,” as defined in Homeland’s policy, was first filed during the time that Homeland’s policy was in effect because under Homeland’s policy a “claim” must be a covered claim.

Moreover, as stated above, Homeland and Executive Risk are two entities with two separate contracts. We cannot say that Homeland is placed at a disadvantage nor can we say that the plaintiffs gained an advantage by the alleged inconsistency in the plaintiffs’ positions. It is certainly not a violation of traditional notions of fairness for a defendant insurance company to defend against |sa contention that its insurance policy provides coverage in a case simply because the plaintiffs said its code-fendant’s policy provided coverage.

Accordingly, after reviewing the record, we find no abuse of discretion by the trial court in not applying judicial estoppel to estop the plaintiffs from arguing that Homeland’s policy provides coverage in this case. As such, we find that Homeland’s second assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE:

In its final assignment of error, Homeland avers that the trial court committed legal error in granting plaintiffs’ motion for summary judgment against it despite a number of genuinely disputed issues of material fact. We find no such genuine issues of material fact exist.

“Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate.” Elliott v. Continental Cas. Co., 06-1505, p. 10 (La. 2/22/07), 949 So.2d 1247, 1253 (quoting Reynolds v. Select Props., Ltd., 93-1480 (La. 4/11/94), 634 So.2d 1180, 1183). A summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B)(2).5
5 We note that La.Code Civ.P. art. 966 was amended by 2015 La. Acts No. 422, § 1, and its provisions became effective on January 1, 2016. This matter is considered applying the provisions of the Louisiana Code of Civil Procedure as they existed at the time of the trial court’s consideration. See 2015 La. Acts. No. 422, § 2 which states: “The provisions of this Act shall not apply to any motion for summary judgment pending adjudication or appeal on the effective date of this Act.”

Savoie v. Calcasieu Parish Ward Four Fire District No. 2, 16-172, p. 5 (La.App. 3 Cir. 9/28/16), 200 So.3d 407, (footnote in original).

“Interpretation of an insurance policy ordinarily involves a legal question that can be properly resolved by a motion for summary judgment.” Bernard v. Ellis, 11-2377, p. 9 (La. 7/2/12), 111 So.3d 995, 1002.

19An insurance policy is a contract between the parties and should be construed using the general rules of interpretation of contracts set forth in the Civil Code. If the words of the policy are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent and the agreement must be enforced as written. An insurance policy should not be interpreted in an unreasonable or strained manner so as to enlarge or restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. The policy should be construed as a whole and one portion thereof should not be construed separately at the expense of disregarding another. If after applying the other general rules of construction an ambiguity remains, the ambiguous contractual provision is to be construed against the insurer who issued the policy and in favor of the insured.

Crabtree v. State Farm Ins. Co., 93-509 (La. 2/28/94), 632 So.2d 736, 741 (citations and footnotes omitted).

Homeland’s policy issued to CorVel defines “Claim” as:

any written notice received by any Insured that a person or entity intends to hold an Insured responsible for a Wrongful Act which was committed or allegedly committed on or after the Retroactive Date listed in ITEM 7 of the Declarations. In clarification and not in limitation of the foregoing, such notice may be in the form of an arbitration, mediation, judicial, declaratory or in-junctive proceeding. A Claim will be deemed to be made when such written notice is first received by any Insured.

Homeland’s policy defines “Related Claims” as:

all Claims for Wrongful Acts based on, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving the same or related facts, circumstances, situations, transactions or events or the same or related series of facts, circumstances, situations, transactions or events, whether related logically, causally or in any other way.

One of the conditions of Homeland’s policy is that all “Related Claims” are deemed a single claim and are considered to have occurred on a single date. The policy states:

All Related Claims, whenever made, shall be deemed to be a single Claim and shall be deemed to have been first made on the earliest of the following dates:
(1) the date on which the earliest Claim within such Related Claims were received by an Insured; or
| in(2) the date on which written notice was first given to the Underwriter of a Wrongful Act which subsequently gave rise to any of the Related Claims, regardless of the number and identity of claimants, the number and identity of Insureds involved, or the number and timing of the Related Claims, even if the Related Claims comprising such single Claim were made in more than one Policy Period.

There is no dispute that the 2006 class arbitration claim was made and reported during the period of Homeland’s policy. Homeland’s insured, CorVel, admits that it did not comply with the notice requirements mandated by the Louisiana PPO Act. As such, the plaintiff class has carried its burden of proof that its Title 40 Claims are covered claims under Homeland’s policy. Therefore, unless Homeland can point out any circumstances that lead to a finding that its policy does not provide coverage to the claims of the plaintiff class, the motion for summary judgment was appropriately granted by the trial court.

Homeland’s assignment of error alleges genuine issues of material fact as to whether the first “Related Claim” against CorVel was made during Executive Risk’s policy period rather than Homeland’s. Homeland contends that the 2005 demand for contractual indemnity or the 2005 workers’ compensation claims filed against CorVel constituted the first “Related Claims” against CorVel. As such, according to the language of its policy, all the claims are considered to have been made during Executive Risk’s policy, and, thus, are not covered by its policy.

The plaintiff class responds to this argument asserting that the trial court correctly concluded that neither the 2005 demand for contractual indemnity nor the 2005 workers’ compensation claims would have been covered by Homeland’s policy.' According to the plaintiff class, were we to interpret Homeland’s policy as Homeland puts forth, it would read, “[Homeland] agrees to pay on behalf of |n[CorVel] any loss which [CorVel] is legally obligated to pay as a result of claims not covered by this policy....”

The trial court found, and we agree, that in order for the 2005 demand for contractual indemnity or the 2005 workers’ compensation claims to be a basis for Homeland to deny coverage, those instances must be a “Related Claim” to the plaintiff class’ claims and also be “Claims” that are covered under Homeland’s policy. The trial court cited Benefits Systems & Services, Inc. v. Traveler’s Casualty and Surety Company of America, 07-3922 (N.D.Ill. 4/22/09), 2009 WL 1106948 to support its finding. In Benefits Systems, the court considered language similar to the language in Homeland’s policy. It found that because a claim is not covered under a policy, subsequent claims cannot relate back to that non-covered claim for purposes of having all subsequent claims treated as if they occurred at the time of that single, non-covered claim. The Benefits Systems court stated on Page 6 of its opinion, the following:

The remaining question is whether the Plunkett Counterclaim is covered under the Policy. It is undisputed that Plunkett filed its initial counterclaim against BSSI on January 19, 2007. This was outside policy period. Therefore, the Plunkett Counterclaim is not covered unless it was related to a claim that was made during the policy period. BSSI argues that the Plunkett Counterclaim was related to the University Complaint, which was made during the policy period. As noted above, the Policy defines “Related Claims” to mean “all Claims based on, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving the same or related facts, circumstances, situations, transactions or events.” However, the Policy also provides: “All Related Claims are a single Claim for purposes of all applicable Liability Coverage Parts, and all Related Claims shall be deemed to have been made at the time the first such Related Claim was made, regardless of whether such date is before or during the Policy Period.” BSSI’s argument fails, however, because the University Complaint was not a covered claim under the Policy. Thus, the Plunkett Counterclaim cannot be a related claim because there was no earlier claim to which it could relate back.

The trial.court found that Homeland’s policy excluded any workers’ compensation claims and also excluded any tort claims. Therefore, the trial court 11Pfound that the 2005 demand for contractual indemnity and the 2005 workers’ compensation claims could not be “Related Claims” so as to absolve Homeland of providing coverage of the plaintiff class’ claims.

We agree with the trial court’s reasoning. Our reading of Homeland’s policy is such that that the 2005 demand for contractual indemnity and the 2005 workers’ compensation claims are not “Related Claims” under Homeland’s policy. The plaintiff class’ claims are not related to workers’ compensation claims or contractual indemnity claims. The plaintiff class did not bring the 2005 demand for contractual indemnity or the 2005 workers’ compensation claims. Finally, per the reasoning in Benefit Systems, Homeland’s policy provides coverage to the plaintiff class’ claims. Accordingly, we find that this assignment of error lacks merit.

DISPOSITION:

Homeland Insurance Company of New York raises three assignments of error. We find no merit to any of these assignments. As such, we affirm the trial court’s findings and judgment and assess all costs of these proceedings to Homeland Insurance Company of New York.

AFFIRMED.

Conery, J., dissents.


source: Caselaw Access Project

author: COOKS, Judge.

license: Public Domain

text:
    Jasmine JONES v. PROGRESSIVE SECURITY INSURANCE CO., et al.
    16-463
    Court of Appeal of Louisiana, Third Circuit.
    OPINIONS RENDERED 12/29/2016

      Philip G. Hunter, Hunter & Beck, 1916 Gus Kaplan Drive, Alexandria, LA 71301, (318) 487-1997, ATTORNEY FOR PLAINTIFF/APPELLANT: Jasmine Jones
    Ryan M. Malone, Duplass, Zwain, Bourgeois, Pfíster & Weinstock, Three Lake-way Center, Suite 2900, 3838 North Causeway Boulevard, Metairie, LA 70002, (504) 832-3700, ATTORNEY FOR DEFENDANTS/APPELLEES: Volvo Construction Equipment Rents, Inc., Liberty Mutual Fire Insurance Company and Keith Morgan.
    Court composed of Sylvia R. Cooks, John D. Saunders, and Shannon J. Gremillion Judges.
   COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

Ijn this automobile accident case Defendants admit liability. Jasmine Jones (Jones) and Keith Morgan (Morgan) were stopped at a traffic light waiting for the light to switch to green. Morgan was driving a Ford F-150 pickup truck, sitting in the right lane of travel, and Jones was driving a Honda automobile, sitting in the left lane of travel. When the light changed from red to green both vehicles proceeded. Jones headed straight through the intersection in the left lane of travel but Morgan tried to make a left turn from his lane and struck Jones’ vehicle on the right front tire. Jones’ vehicle suffered minor damage. She sought medical attention at Rapides Regional Hospital emergency room the same day with a complaint of back pain. Jones saw Dr. Gerald LeGlue (Dr. LeGlue) as her initial treating physician who later referred her to Dr. George Williams (Dr. Williams). Dr. Williams is a board certified orthopedic surgeon who has qualified as an expert witness in his field of medicine many times in various courts.

Jones experienced severe pain, a nine on a scale of one to ten, for many months. She was still experiencing pain at the time of trial two years post-accident. During the first four months post-accident Jones visited Dr. LeGlue thirteen times. She was treated for pain with medication, physical therapy and acupuncture. Jones missed four days of work due to her injury, but waives her loss wage claim. As a young single mother of two small children Jones works and attends nursing school. Dr, Le-Glue eventually felt it necessary to order an MRI and refer Jones to Dr. Williams because Jones was not improving and was not getting relief from treatment. After studying the MRI and Jones’ record from Dr. LeGlue, Dr. Williams recommended an epidural steroid spinal injection for which |2he referred Jones to Dr. Melanie Firmin (Dr. Firmin). According to Jones the steroid injection did not provide any relief but only resulted in aggravating her back pain. Jones began experiencing radicular pain down her right leg and later in both legs. Dr, Williams diagnosed ■ radiculopathy which he opined was the result of her injuries in this accident. He based this opinion on his clinical observations from a mechanical standpoint and on his theory that the cause of her radicular pain was chemical, despite there being no tear in the bulging disc visible on the MRI. He explained that there must be a tear in the disc for leakage to be the cause of radicu-lar pain and that even though the .tear is, not visible on an MRI it may still be present. He knew of four diagnostic tests which could confirm his theory but. explained the reason he thought these tests ill-advised for so young a patient as Jones. He eventually recommended surgery as the only medical remedy for Jones’ persistent pain. After considering all factors concerning such a surgery Jones opted not to have surgery.

Defendants filed a pre-trial motion for a Daubert hearing attempting to limit Dr. Williams’ testimony so as to prohibit him from testifying as an expert on the subject of differential diagnosis of radiculopathy. Following what the trial judge styled a Daubert hearing the trial court ruled all of Dr. Williams’ testimony inadmissible. Jones objected to the court’s ruling, but the objection was overruled. Jones proffered the deposition of Dr. Williams and it is contained in the record. The trial court rendered judgment in favor of Jones and awarded her special damages in the amount of $5,822.16 and general damages of $5,000.00. The trial judge based its award of special damages on its finding that Jones’ attorney ^negotiated reduction of medical costs inures to Defendant’s benefit as the collateral source rule is not applicable to such reductions. The trial court made no mention of assessing costs to either party and did not issue any oral or written reasons for its judgment.

Jones appeals the judgment asserting five assignments of error attacking the court’s refusal to apply the collateral source rule to Jones’ medical costs, exclusion of all of Dr. Williams’ testimony, exclusion of Dr. LeGlue’s testimony regarding chemical radiculopathy, the trial court’s failure to assess costs against Defendants, and seeking an increase in dam-agés. Jones sets forth her assignments of error as follows:

[Assignment of Error No.] 1: The trial court erred in granting defendant’s Dau-bert motion and excluding, entirely, the testimony of Dr. George Ray Williams, a board certified and fellowship trained treating orthopedic spine surgeon practicing in Opelousas;
[Assignment of Error No]. 2: The trial court erred in excluding a portion of the testimony of plaintiffs principal treating physician, Dr. Gerald LeGlue of Alexandria;
[Assignment of Error No.] 3: The trial court erred in awarding the plaintiff only $5,000 in general damages in this case where the plaintiff suffered injuries for which she actively treated for thirty-one months and incurred medical bills of approximately $15,000;
[Assignment of Error No.] 4: The trial court erred in failing to east costs against the defendant, including clerk’s ledger costs, expert witness fees, and costs of medical records, and other taxable costs; and
[Assignment of Error No.] 5: The trial court erred in in this bench trial by applying an inappropriately stringent standard to medical testimony and opinion where she, rather than a jury, should have considered all testimony of the two treating physicians. In other words, the trial court overzealously performed a ga-tekeeping function in a bench trial, thus denying itself factual, diagnostic and causation testimony to support a reasonable award of damages.

|4Legai Analysis

Following argument of counsel the trial court made its ruling in open court granting Defendants’ motion to exclude testimony of Dr. Williams ordering that all of Dr. Williams’ testimony be excluded. The court explained its ruling as follows:

With the Daubert motion, we know that it’s all the, the basis of this motion is all about methodology. And an expert can have an opinion, and we see experts have different opinions all the time. But, in order for an expert’s opinion to be reliable, the basis of his opinion has to be reliable, and the foundation of his opinion has to be reliable.
Without — the Court is of the opinion that this evidence will be excluded, because there is no medical evidence that he relies on to form this opinion. And so therefore, the Court is of the opinion that the basis of his opinion is not reliable; so, therefore, his opinion would not be reliable.
By Mr. Hunter: Now just for the record, Your Honor, are you excluding his entire deposition testimony.
By The Court: Yes.
There is a crucial difference between questioning the methodology employed by an expert witness and questioning the application of that methodology or the ultimate conclusions derived from that application. Only a question of the validity of the methodology employed brings Daubert into play. MSOF Corp. v. Exxon Corp., 04-0988 (La.App. 1st Cir.12/22/05), 934 So.2d 708, 718, writ denied, 06-1669 (La.10/6/06), 938 So.2d 78. However, if a district court conducts no Daubert analysis of any kind, the exclusion of the expert’s evidence without an evaluation of the relevant reliability factors is legal error. Corkern [v. T.K. Valve], 934 So.2d [102] at 1072 [ (La.App. 1st Cir.3/29/06) ].

Carrier v. City of Amite, 08-1092, pp. 4-5 (La.App. 1 Cir. 2/13/09), 6 So.3d 893, 897, writ denied 09-0919 (La. 6/5/09), 9 So.3d 874 (emphasis added).

We find the trial court failed to conduct a proper Daubert analysis. In fact, the methodology at issue here was not even called into question by the Defendants. Defendants agreed with Dr. Williams’ position that there are four reliable diagnostic tests which he could have administered to Jones to verify his opinion as |Bto the cause of her radicular pain. Defendants did not assert, and no evidence was put forth, that any of these diagnostic tests were unreliable or not generally accepted. They argued instead, that because Dr. Williams admitted he did not conduct these tests he should not be allowed to give an expert opinion on chemical radicu-lopathy. This allegation merely raised a question as to Dr. Williams’ application, or rather his refusal to apply, accepted methodologies. This goes only to the weight of his testimony regarding whether Jones suffered from radicular pain in her leg as a result of injury to her back sustained in this accident. The “hearing,” which consisted of no more than argument by counsel for each side, did nothing to inquire into the validity of any methodology used or any methodology the defense argues should have been used. This was legal error.

Additionally, because Dr. Williams was Jones’ treating orthopedic surgeon his testimony was relevant and useful in determining her past, present and future medical costs as well as her general damages for pain and suffering. The Louisiana Code of Evidence, Article 401 defines relevant evidence as “... evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” “All relevant evidence is admissible, except as otherwise provided by the Constitution, of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation...” La. Code Evid. Art. 402. It was legal error to exclude the entirety of Dr. Williams’ testimony. As Jones’ treating physician his testimony is entitled to greater weight than any of Defendants’ expert witnesses who either never examined her but only reviewed certain of her medical records or examined her for a limited purpose. Murchison v. Lyndon Property Ins. Co., 04-933 p. 9 (La.App. 3 Cir. 12/30/04) 896 So. 2d 214, 221, writ denied 05-274 (La. 5/13/05), 902 So.2d 1016.

As a general rule, the treating physician’s testimony should be given more weight than that of a doctor who examines a claimant for diagnostic purposes only, and the testimony of a specialist is entitled to greater weight than that of the general practitioner when the subject at issue involves the particular field of the specialist. Martin v. Emerson Elec. Co., 437 So.2d 910 (La.App. 2 Cir. 1983); Ellis v. Rapides Parish School Board, 419 So.2d 990 (La.App. 3 Cir. 1982).

Clark v. State Farm Ins. Co., 520 So.2d 860, 864 (La.App. 3 Cir. 1987). Because Dr. Williams’ testimony by way of his deposition taken for trial purposes was proffered we have the benefit of this information to assist us in our de novo review of the case. It is therefore unnecessary to remand the ease. When an error of law interdicts the fact finding process the court of appeal conducts a de novo review and when the record is complete, as here, renders judgment in the matter without the need for a remand to the trial court. Cleco Evangeline, LLC v. Louisiana Tax Commission, 01-2162 (La.4/3/02), 813 So.2d 351. In this case, because the trial court failed to assess court costs against the Defendants, the case must be remanded solely for the purpose of determining the costs to be assessed against Defendants. As a general rule, a party cast in judgment is taxed with costs of the proceedings. Adams v. Canal Indem. Co., 99-1190 p. 12 (La.App. 3 Cir. 5/10/00), 760 So.2d 1197, 1205 writ denied, 00-1636 (La. 9/22/00), 769 So.2d 1212. 00-1637 (La. 9/22/00), 769 So.2d 1213. In all other respects, this court will render judgment awarding damages to Jones appropriate in the cause.

Dr. Williams was tendered as an expert in orthopedic medicine. Our review of his curriculum vitae and his testimony regarding his qualifications as an expert in orthopedics and spine surgery leads us to conclude that he is clearly qualified in his field of expertise. He has been qualified numerous times in other courts as an 17expert in his field and, given his credentials, we have no hesitation to accept him as an expert witness in orthopedic spine surgery and general orthopedics.

Causation

Jones bears the burden to prove there is a causal relationship between the injuries she sustained and the accident that she claims caused those injuries. “The test for determining the causal relationship is whether the plaintiff proved, through medical testimony, that it is more probable than not that the subsequent injuries were caused by the accident. Bennett v. Louisiana Farm Bureau Cas. Ins. Co., 43,216 (La.App. 2 Cir. 4/30/08), 983 So.2d 966, 972.” Lohenis v. Rousse, 14-1078 p.5 (La. App. 1 Cir. 3/9/15), 166 So.3d 1020, 1025. In conducting our review of this case we must determine whether the injuries for which Jones seeks compensation were more probably than not caused by the collision for which Defendant’s liability is admitted. Jones sought medical treatment shortly after the March 19, 2013 accident on the same day at Rapides Hospital Emergency Room. She was twenty-three years old at the time of the accident and had no history of prior back pain or pain radiating down her leg. She had no prior need of physical therapy treatments, pain medication, acupuncture or epidural steroid injections. She first treated with Dr. LeGlue on June 3, 2013. She continued treatment with her pain unresolved as of the date of trial.

Dr. LeGlue was accepted by the trial court without objection as an expert witness in physical medicine and rehabilitation. He is board certified in this field. When Dr. LeGlue first saw Jones she was having low back pain but no peripheral symptoms. She reported her pain increased with prolonged standing, lifting objects or certain types of movement. She explained to him that she was in a motor vehicle accident on March 19, 2013, but did not tell him about being in an | ^accident in 2011. He did not believe knowing about that accident would have changed his opinions about the injuries incurred in the 2013 accident. She had not been experiencing any pain or symptoms from the earlier accident. He physically examined her and observed tenderness to touch from T12 through LI areas of the spine as well as the last three thoracic to first lumbar area. He also observed tenderness in the posterior superior iliac spine where the pelvis and backbone are attached. Her lateral flexion side-to-side was three fourths normal, with pain upon movement, and her right rotation was about half of normal. Left rotation was three fourths normal. She experienced pain during right rotation but not on the left. She complained of pain when he stretched the piriformis muscle which attaches the hip to the sacrum. Dr. LeGlue explained when a person is in an auto accident they typically have their right foot forward and upon impact the pelvis rotates in a manner humans are not designed for resulting in injury such as the sprain in her back. Dr. LeGlue concluded Jones suffered injuries to her spine in the accident that did not heal appropriately. These physical observations and hands-on examination lead him to a diagnosis of a “thoracic and lumbar facet sprain, right piriformis strain, i.e. piriformis syndrome implying chronicity in the iliolumbar sprain, i.e., dysfunction, again, implying a certain chronicity” as a result of the accident. He prescribed physical therapy three times a week for two weeks. He also prescribed an anti-inflammatory medication, Meloxicam and two narcotic alagesics, Hy-drocodone and Lortab. The evidence shows Jones filled these prescriptions on June 3, 2013 and continued to refill these and other medications through January 2015. (At a certain point Lortab was taken off the market and replaced with the drug Norco.)

|aDr. LeGlue saw Jones again on July 24, 2013. He observed that she had been unable to attend all of the physical therapy sessions due largely to her time constraints with her job, nursing school and two small children. The physical therapist had given her instructions on exercises to do at home and she maintains she complied with those instructions. Dr. LeGlue examined her again and found she had made improvement and was feeling better. “[H]er buttock was stable. The piriformis looked like it had stretched out okay. Her low back pain was intermittent at this point. It wasn’t constant.” Because Jones still had what he termed “long-running pain,” Dr. LeGlue recommended acupuncture as a possible remedy. He is formally trained and board certified in acupuncture. Jones did not feel any relief and did not want to try acupuncture again. He continued her on Meloxicam and Lortab for pain.

He next saw her on August 20, 2013. She reported increased pain following the acupuncture treatment on the previous visit which caused her to refuse trying it again. Jones was still experiencing low back pain, which had increased in intensity. Dr. LeGlue felt it necessary at that point to order an MRI because he observed she was experiencing symptoms “way beyond soft tissue ending times.” He was convinced something else was causing this continued pain. The MRI confirmed his suspicions and indicated a “broad disc protrusion” which shows why this accident aggravated her pre-existing condition of hypertrophy in her facet joint (most likely due to her having been pregnant twice before the accident.) He opined that the trauma of this accident “opened up a can of worms.” Jones was asymptomatic before the accident but post-accident was experiencing serious low back pain and later radicular pain in her leg. Dr. LeGlue found this finding to be consistent with this type of accident and consistent with his clinical observations |inand hands-on examinations of Jones. He saw Jones again on August 29, 2013, and discussed the MRI results. He opined the protruding disc was caused by the accident and was the reason for Jones’ continued back pain and radicular pain. He testified that he did not perform any diagnostic tests to further confirm the source of Jones’ radicular pain but did explain that a patient can indeed be experiencing such pain even when the MRI does not show a visible tear. This, he explained, is because the MRI is performed with the patient in a static state, but when the patient moves the problem occurs due to rotation of the facet joints but the MRI is not scanning the person in motion. Dr. LeGlue testified physical therapy cannot do anything for Jones’ protruding disc, thus it was of no moment that she was unable to attend all of the earlier prescribed therapy sessions. At this point he felt it necessary to refer Jones to an orthopedic surgeon, Dr. Williams. He saw Jones again of October 29, 2013, and noted Dr. Williams had put her on a twenty pound lift restriction which indicated to him that Dr. Williams also believed the disc was at issue. He also noted Dr. Williams added the medication Flexeril, a muscle relaxer, and Norco for pain. He agreed with Dr. Williams’ recommendation that Jones try an epidural steroid injection. Dr. LeGLue entered the following notation in Jones’ chart:

Patient, since last seen, is continuing under the care of Dr. Williams. Continues with low back pain, paro-intermit-tent bilateral lower extremity pain and paresthesis. No recurrent trauma. Has had questioned SMO this past summer in Lafayette. Reports surgeon felt patient too young to undergo surgery but suggests repeat MRI. Continues to work at Longleaf as Mental Health Tech and attending LSU-A. She’s on Norco 10 milligrams TIB, three times a day, as needed.
And I also note, in asterisk, she’s had no blood work for the past couple of years. And I would suggest she get some blood work to check her liver functions on the medicine she’s on.

InDr. LeGlue last saw Jones the day before trial and observed in his notes she was still experiencing low back pain. He concluded his testimony by saying:

Q. So we’ve got more than two years of pain and suffering. Given what you’ve seen, do you think that was caused by the accident?
A. Yes, sir.
Q. Do you think that it may persist? A. You have to assume, statistically, that is, up to this point in time, statistics suggest you’re going to have a poor outcome, given two-and-a-half years of chronic pain, sir.
Q. She may have it forever?
A. That’s possible.

Dr. Williams Testimony

Dr. Williams first saw Jones on September 17, 2013, as a referral from Dr. LeGlue. Jones told him about the motor vehicle accident and informed him that she had no prior history of back pain. She was experiencing back pain at that visit but was not having any radicular pain at that time. Dr. Williams’ physical exam of Jones revealed she had “limited range of motion of the lower back, and she had pain to palpation over the lumbar area, spinous process region.” Based on his review of her x-ray and physical examination he diagnosed “lumbar spondylosis and lumbar sprain.” He opined these injuries were the result of the auto accident at issue. He prescribed physical therapy and imposed a twenty-pound lift restriction. He next saw her on November 12, 2013. Jones was still experiencing pain in the upper and lower lumbar region as indicated by his physical examination. She continued to experience “limitations in flexion and rotation. And now she was having a little bit of numbness in the lower nerve root distributions on her back.” Dr. Williams reviewed Jones’ MRI and the radiologist’s report on the MRI, which 112showed “she had a disc protrusion at the L4-5 region. So we had low back pain, a herniated disc, and radiculo-pathy.” Defendants objected to Dr. Williams’ reference . to the radiologist’s findings. “An expert may provide, testimony based on information obtained from others and the character of the evidence upon which the expert bases an opinion affects only the weight to be afforded the expert’s conclusion. State v. Pooler, 96-1794 (La.App. 1st Cir.5/9/97), 696 So.2d 22, 55, writ denied, 97-1470 (La.11/14/97), 703 So.2d 1288.” MSOF Corp. v. Exxon Corp., 04-988 p, 16 (La.App. 1 Cir. 12/22/05), 934 So.2d 708, 720, writ denied, 06-1669 (La. 10/6/06), 938 So.2d 78. Dr. Williams described the disc protrusion as “notable” and opined that this explained Jones’ pain and her other symptoms. When asked his thoughts on Dr. Curtis Partington’s (Dr. Partington) opinion that the MRI looked “normal” Dr. Williams replied: “We felt [it was] somewhat surprising because you can clearly see she has an abnormality at 4-5. So I asked our radiologist to take a look at it to make sure (sic) I wasn’t missing something, and they clearly agreed that there’s an abnormality at L4-5.”

Jones next saw Dr. Williams on February 11, 2014. She reported that the physical therapy had not helped and she was still in pain. Dr. Williams recommended she try an epidural steroid injection for which he referred her to Dr. Melanie Fir-min. This treatment was not helpful and now Jones was experiencing more back pain and pain down her right leg. His physical examination of Jones on this visit confirmed what Jones was describing and he observed she still was having “limitation in flexion and rotation.” His opinion remained unchanged — “herniated nucleus pulposus and lumbar radiculopathy” which he again opined was caused by the accident at issue. He did not see her again until November 11, 2014, at which time she was still having back pain and right leg pain. When he next saw [ 1sJones on February 10, 2015, she was, again experiencing back pain but now was having pain down both legs. Dr. Williams explained that Jones’ radicular pain in both legs was likely both mechanical and chemical radiculo-pathy. He opined it was partly mechanical due to the disc protrusion at L4-5 which he described as a classic cause of the kind of pain Jones was having.

Dr. Williams explained that he thought it ill advised to subject Jones to a disco-gram just for the sake of making a more definite diagnosis of the cause of her radi-cular pain. He described a discogram as “a provocative test” which is known to “cause either accelerated or a premature degeneration of the disc.” He opined that administering this test to Jones would “more probably than not” cause accelerated degeneration of several discs. In short, he believed, based on his expertise, that “the risks associated with [administering a dis-cogram] would be outweighed by academically proving what [he believed was] happening [was] actually happening[.]”

Dr. Williams last saw Jones on May 26, 2015, before trial. Jones told him at that time she was still having pain. She explained that she tried to engage in her normal activities but pays for the effort afterwards. He opined this was consistent with the type of injury she had as evidenced by the protruding disc. Lastly, Dr. Williams concluded his opinion of Jones’ condition stating:

We were hopeful that, you know, the non-surgery stuff did. That’s why we stressed, you know, the therapy, the medicine, the shots, but she’s been persistently actually getting worse since over a two and a half year period. So that’s the only last thing we have to offer is surgical intervention.
The type of disc she has has a good chance for recurrent disc herniation, so that’s why we’re opting for the fusion as opposed to a simple decompression.

Dr. Williams estimated the cost of this surgical procedure to be $20,000.00 for his fee and $5,000.00 for the PA fee. The recommended surgery is described by Dr. Williams as a transforaminal inner body fusion or TLIF.

Defense Experts

Dr. Neil C. Romero

Dr. Romero was accepted as an expert in the field of orthopedic surgery without objection. He is board certified in orthopedic surgery. Interestingly, both he and Dr. Williams attended the same fellowship training for spine orthopedics at Stanford University and St. Mary’s Hospital in San Francisco. He opined, based on his single examination of Jones, that her leg pain was due to bursitis. He STATED that this could have been caused by Jones walking with- an uneven gait as a result of back pain. As the expert witness for Defendants, it is noteworthy that he dispelled any notion that Jones suffered from injuries related to previous minor accidents. When asked about previous auto accidents Jones was involved in he responded that she did not tell him about those accident because, he felt, she did not think they were “terribly significant.” Apparently neither did he, as he explains in his response to questions about Jones’ prior accidents:

Q. Do you find this in any way, based on the records, to be significant, any of those prior accidents?
A. No. Because, to be honest with you, it was mostly neck pain symptoms. She did undergo some chiropractic treatment for her neck pain in 2011. The chiropractic notes did not note that she had improved. She was involved in another accident in 2011. She really didn’t undergo much treatment for it at that point, she just says it resolved, and she was diagnosed with a lumbar strain, and then she was involved in another accident in later 2011, and her only complaints at that visit were humerus and wrist pain, so there were no back pain symptoms there. So, I’ll be honest with you, after reviewing the records, I didn’t think she had a significant previous lumbar spine history.

115Pr. Romero was unable to offer any opinion as to why Jones experienced right leg pain following the epidural steroid injection. He agreed that it was certainly possible for Jones to experience such pain after this procedure and opined “it was consistent with Dr. Williams’ notes and what she told me during the exam.” He did not agree that surgery was indicated at this point in Jones’ treatment and opined that he would want to have another MRI done before “jumping” to surgery. He testified that he could not determine the cause of Jones’ back and leg pain but said “I think her problem is mainly consistent with some back pain symptoms that are consistent with a lumbar strain as well as a trochanteric bursitis.” He did, however, associate her pain and his diagnosis of her injuries as being caused by the accident at issue. He would recommend “physical therapy, home exercises, core strengthening, anti-inflammatories, some activity modification, but generally, you know, six to eight weeks is usually a good course of treatment for this and then start to increase their activities from there.” We note that much of Dr. Romero’s recommendations, based on his one visit with Jones, is in agreement with her treating physicians opinions and treatments. Jones’ history with her treating physicians shows that she did not improve in six to eight weeks which fact caused her treating physicians to conclude that her injuries were more serious than a sprain, and to conclude that they were correct in their readings of her MRI showing a protruding disc at L4-5 as the cause of her continued problems. Also telling is Dr. Romero’s opinion that two years is a long time to be on narcotic pain medications like those Jones has been taking. He agreed with prescribing the medications prescribed by Jones’ treating physicians but opined that he would, at that point, send his patient to pain management. On cross examination Dr. Romero described the course of treatment he would prescribe for Jones’ lumbar 11 (¡strain and opined that if she followed his recommendations to have epidural steroid injections, physical therapy, and core strengthening exercises, he would “hope” her symptoms would get progressively better after about three months. When asked if he thought Jones would be at least occasionally bothered by back pain, after completing his recommended course of treatment he responded “I don’t think that would be unusual.” He opined that she might continue to be bothered for up to six months after the three months of his recommended treatments including injections. He also opined that he did not believe Jones was malingering.

Dr. Curtis Partington

Dr. Partington was accepted as an expert in the field of neuroradiology over the objection of Jones. He is board certified in general diagnostic radiology and in neuro-radiology. Jones initially objected to accepting Dr. Partington as an expert witness in this case because he never actually saw Jones but merely reviewed only the MRI and x-ray taken after this accident supplied to him by defense counsel. Jones does not challenge the court’s acceptance of Dr. Partington as an expert witness on appeal.

Dr. Partington reviews MRIs and other medical records under his business known as Independent Medical Reviews, LLC. He and an office manager are the only-members of the LLC. He testified that approximately 80% of his referrals to review-records are from defendant insurance companies. He also. testified that he reviews as many as 50 MRIs and x-rays a day but he “generally quit[s] when [he] get[s] just , over 40 or 45.” In his words by that point “you start getting a little faded ... tired and fatigued and I shouldn’t be doing this anymore ...” He could not say how many reviews he had performed during the day before looking at Jones’ MRI and x-ray. He also testified he did not look at any other of Jones’ |17medical records nor was he interested in reading the reports, and findings of Jones’ radiologists or treating orthopedic surgeon. He opined that the MRI and x-ray showed a normal lumbar spine, meaning to him that if her disc appeared to be bulging “less than one millimeter or two” he would consider it a normal spine for a woman Jones’ age. He states in his report dated June 22, 2015, that L5 is “mostly sacralized” but opines that this different shape, which is abnormal, is found in 5% of the population, and would not be the cause of any back pain. He says he sees no evidence of any injury to the spine or soft tissues. He does admit that there are causes of back pain that cannot be seen on an MRI, such as muscle strains or ligament strains. He is of course unable to comment on whether Jones might be suffering from these causes because his knowledge of her condition is limited to only her MRI and x-ray. When pressed on cross-examination about his testimony regarding leakage of disc material as a cause of radiculopathy, Dr. Part-ington pulled back on his insistence that there must be a tear and it can always be seen on the MRI if it’s there. Instead, he admits under cross-examination that he cannot rule out the possibility that Jones could have leakage of material from a disc that would not be detectable on the MRI or x-ray he viewed but could be significant enough to cause chemical radiculopathy. He also acknowledged he cannot see pain on an MRI.

We find Dr. Partington’s opinion does little to contradict the findings of three medical experts, two of which are Jones’ treating physicians who have examined her and reviewed her MRI and x-rays with the benefit of hands-on physical examinations to reach their conclusions. Even Dr. Romero, as Defendants’ expert, is at odds with Dr. Partington’s notions. Perhaps Dr. Partington was, as he described, “getting a little faded” when he reviewed Jones’ 11SMRI and x-ray. Dr. Partington’s testimony, based on limited knowledge of Jones, is entitled to far less weight than her treating physicians, the importance of such rule is underscored by his testimony.

Based upon our review of the record we find Jones has proved causation by a preponderance of the evidence, and she is, therefore, entitled to compensation for her injuries and the pain and suffering she has endured and continues to experience. Special Damages

The Collateral Source Rule

Plaintiff asserts she was entitled to all of her medical costs totaling $15, 163.43. Defendants contend this sum includes amounts which were not actually paid as a result of attorney-negotiated discounts. The Louisiana State Supreme Court, in Hoffman v. 21st Century North American Ins. Co., 14-2279 p. 5 (La. 12/7/15), 209 So.3d 702, 2015 WL 5776131, “[adopted] a bright-line rule that such attorney-negotiated discounts do not fall within the ambit of the collateral source rule...” Thus, any sums which were not actually paid by Jones due to an attorney-negotiated reduction are not recoverable. We hasten to add, however, that such sums have a bearing in the determination of general damages. Additionally, under the collateral source rule, Defendants do not enjoy the benefits of reductions in Jones’ medical costs which were the result of Jones’ medical insurance cost adjustments (such as the $1,925.33 covered by Jones’ medical insurance for pain medications at Walgreens) or her discount due to self-pay at Central Louisiana Surgical Hospital, as these reductions adversely affect Jones’ patrimony.

| ^Medical Expenses

In Watson v Hicks, 15-46, 15-47-15-48 p. 26 (La.App. 4 Cir. 5/27/15), 172 So.3d 655, 675 our sister circuit succinctly set forth the governing principles regarding awards for special damages as follows:

• When a plaintiff alleges that he or she has incurred medical expenses as a result of injuries suffered in an accident and that medical treatment is evidenced by a bill, the bill is sufficient to support an award for past medical expenses “unless there is sufficient contradictory evidence or reasonable suspicion that the bill is unrelated to the accident.” Earls v. McDowell, 07-17, pp. 7-8 (La.App. 5 Cir. 5/15/07), 960 So.2d 242, 248 (citing Stiltner v. National Union Fire Ins. Co., 00-2230 (La.App. 4 Cir. 10/3/01), 798 So.2d 1132).
• A tortfeasor is required to pay the expenses of over treatment or unnecessary medical treatment, “unless such treatment was incurred by the victim in bad faith.” Montgomery v. Kedgy, 44,-601, p. 9 (La.App. 2 Cir. 8/26/09), 21 So.3d 980, 986-87 (citing Green v. Nunley, 42, 343-44 (La.App.2d Cir.8/15/07), 963 So.2d 486; and Sumrall v. Sumrall, 612 So.2d 1010 (La.App. 2d Cir.1993)).
• Absent bad faith, “it is error for the trier of fact to fail to award the full amount of medical expenses that are proven by a preponderance of the evidence that were incurred as a result of an accident.” Earls, 07-17, p. 8, 960 So.2d at 248 (citing Simon v. Lacoste, 05-550 (La.App. 3 Cir. 12/30/05), 918 So.2d 1102); Boxie v. Smith-Ruffin, 07-264, p. 13 (La.App. 5 Cir. 2/6/08), 979 So.2d 539, 548.

The evidence submitted supports the following medical expenses were incurred by Jones as a result of injuries she sustained in this motor vehicle accident. There is no convincing contradictory evidence and no reason presented to suspect that these bills are not related to Jones’ injuries sustained in this accident. For clarity we set forth Jones medical bills as follows:

Central Louisiana Surgical Hospital: $6,764,15
Dr. George Williams: $1,535.00
Dr. Gerald LeGlue: $2,133.00
Dr. Melanie Firmin: $1,560.00
12nEmergency Group Rapides: $528.00
MR Imaging: $825.00
Rapides Regional Medical Center: $684.00
Walgreens: $2178.49
Total: $16,207.64

We thus award Jones the sum of $16,207.64 as special damages for her medical costs incurred as a result of injuries sustained in this accident.

General Damages

In Bellard v. American Central Ins. Co., 07-1335, p. 29 (La. 4/18/08), 980 So.2d 654, 674, (citation omitted) the state supreme court reiterated the standards set forth in Duncan v. Kansas City Southern Railway Co., 00-66 (La. 10/30/00), 773 So.2d 670 regarding a determination of 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 lifestyle which cannot be definitely measured in monetary terms.’ ”

In Watson the fourth circuit elaborated on the considerations for an award of general damages:

General damages may be established in three ways: (i) the circumstances of the case, (ii) expert medical testimony, and (iii) the tort victim’s testimony. Frank L. Maraist & Thomas C. Galligan, Jr., LOUISIANA TORT LAW § 7.02[3] (2004 ed.). “General damages do not have a common denominator and are determined on a case by case basis.” Glasper v. Henry, 589 So.2d 1173, 1180 (La.App. 4th Cir.1991) (citing Bernard v. Royal Insurance Co., 586 So.2d 607 (La. App. 4th Cir.1991)). The jurisprudence holds that the duration of a plaintiffs symptoms and treatment are relevant factors that courts must consider in assessing general damages. See Gillmer v. Parish Sterling Stuckey, 09-0901 (La. App. 1 Cir. 12/23/09), 30 So.3d 782, 788; Glasper, supra (noting the factors to be considered in assessing quantum for pain and suffering are severity and duration).

Watson, 172 So.3d at 677-78.

121 Additionally, it is well-settled in our jurisprudence that:

[A] defendant in a personal injury case takes the victim as he finds him and is responsible for all natural and probable consequences of his tortious conduct. When the tortfeasor’s conduct aggravates a preexisting condition, the tort-feasor must compensate the victim to the full extent of the aggravation. Robinson v. Tolbert, 40,488 (La.App. 2 Cir. 1/20/06), 920 So.2d 346, 348.

Lohenis v. Rousse, 14-1078 p. 4 (La.App. 1 Cir. 3/9/15), 166 So.3d 1020, 1024-25.

Jones’ reference to cases decided in this circuit regarding the quantum of damages for injuries such as those suffered by Jones in this case are persuasive. Jones has endured pain and suffering for two years prior to trial and her pain as well as treatment for her pain is expected to continue after her case has been decided. Our de novo review of the evidence leads us to conclude that Jones, at the very least, has suffered for twenty-four months with low back pain and pain radiating down both legs. There is evidence that Jones will continue to suffer, at least intermittently, and that the only full remedy for her pain will be a surgical procedure. Jones has stated she does not intend to have such surgery and she does not seek recovery for the projected $25,000 cost of such surgery. We find the evidence on this issue is insufficient upon which to base an award for these speculative future medical costs. No other evidence of future medical costs appear in the record and we will not speculate as to such costs. However, what is in the record is that Jones’ medical costs as a result of injuries sustained in this accident total $16,933.76, with a small portion of that amount not being recoverable as special damages due to the reduced amount resulting from her attorney’s efforts. ImWith the above principles in mind applied to the evidence of record we find Jones entitled to an award of $30,000.00 as general damages. We base this award considering other awards for similar circumstances such as those reflected in the cases cited above and in Watson:

Sanchez v. Dubuc, 12-526, p. 10 (La. App. 5 Cir. 2/21/13), 110 So.3d 1140, 1146 (noting that “[e]ven without disc involvement, there is support in the jurisprudence for an award of $2,000 to $2,500 per month for soft tissue injuries” and collecting cases illustrating such awards); Edwards v. GEICO Indem. Co., 14-606 (La.App. 3 Cir. 3/18/15), 167 So.3d 957, (holding that “awards in the $30,000 range are reserved for treatment of longer duration and injuries that significantly affect quality of life”). As to Mr. Watson, we find the highest reasonable award for the injuries at issue is $15,000.00. See Lohenis v. Rousse, 14-1078 (La.App. 1 Cir. 3/9/15), 166 So.3d 1020, (awarding $15,000.00 in general damages for the aggravation of preexisting injuries despite that “it was not clear to the district court [and] ... not clear from the record and exhibits before [the appellate] court when the plaintiffs chronic neck and back pain returned to its ‘preaccident state.’ ”)

Watson, 172 So.3d at 679.

For the reasons set forth we render judgment in favor of Jones and award her the sum of $16,207.64 as special damages and the sum of $30,000.00 as general damages. We remand the case to the district court for the sole purpose of determining the amount of costs in the trial court all of which costs are to be assessed against Defendants. All costs of this appeal are assessed Defendants.

Reversed. Judgment Rendered. Remanded in part with instructions.

      . Daubert v. Merrell Dow Pharm., Inc. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). State v. Foret, 628 So.2d 1116 (La. 1993).

        . Stelly v. Zurich American Ins. Co., 11-1144 (La.App. 3 Cir. 2/1/12), 83 So.3d 1225; Williams v. Finley, Inc., 04-1617 (La.App. 3 Cir. 4/6/05), 900 So.2d 1040; Robinson v. Fontenot, 02-704 (La. 2/7/03), 837 So.2d 1280; and Alex v. Rayne Concrete Service, 04-1555 (La.App. 3 Cir. 9/14/05), 915 So.2d 931.