Bertrand v. Kudla

Citations: 139 So. 3d 1233; 14 La.App. 3 Cir. 61; 2014 La. App. LEXIS 1471; 2014 WL 2515208Docket: Nos. 14-61, 14-62

Court: Louisiana Court of Appeal; June 4, 2014; Louisiana; State Appellate Court

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Plaintiffs Talesha and James Bertrand appeal a judgment notwithstanding the verdict (JNOV) that denied their request for additional special damages for Talesha’s lost income and an increase in the general damage award. The case centers on a medical malpractice claim stemming from Talesha's incomplete tubal ligation performed by Dr. Michael Kudla after the birth of her third child on December 13, 2004. A pathology report from Dr. Robert Rumsey indicated the procedure was incomplete, but Dr. Kudla failed to inform Talesha during her postpartum checkup on December 27, 2004. Consequently, she became unexpectedly pregnant with her fourth child, born on March 7, 2006, and underwent a complete tubal ligation afterward.

The Bertrands filed a medical malpractice claim against Dr. Kudla and his insurer, which settled for $100,000. They later sued Dr. Rumsey, claiming his negligence contributed to the unplanned pregnancy. The cases were consolidated for trial, where the jury found in favor of Dr. Rumsey but ruled against Dr. Kudla, awarding the Bertrands $56,252.15 in total damages after assigning 5% fault to Talesha. The trial court subsequently upheld the jury's decision, resulting in a reduced judgment against Dr. Kudla. The Bertrands then filed a JNOV addressing four aspects of the verdict, which was partially granted and partially denied by the trial court.

The trial court determined that the jury's allocation of 5% fault to Talesha was inconsistent with the law and evidence, leading to a judgment notwithstanding the verdict (JNOV) that found Dr. Kudla 100% at fault. The court also increased the jury's award for past medical expenses from $6,252.15 to the stipulated amount of $19,588.56, while denying the JNOV motion with respect to the Bertrands’ requests for additional special damages for lost income and an increase in general damages to at least $150,000. The Bertrands are appealing, arguing that the jury abused its discretion by not awarding special damages for Talesha's nine-and-a-half-month income loss due to Dr. Kudla's malpractice and by only granting $50,000 in general damages for the resulting physical and emotional effects.

In addressing the Bertrands’ Motion to Strike parts of the PCF's appellee brief, the Bertrands contend the PCF failed to respond to the appeal and did not file a separate appeal regarding the JNOV judgment. According to Louisiana Code of Civil Procedure Article 2138, an appellee is not required to answer unless seeking a modification or reversal of the judgment. The Bertrands assert that the PCF’s brief improperly discusses the jury's fault determination, which was resolved by the trial court, and contends that the PCF’s arguments about the jury's award of past medical expenses were also addressed by the JNOV. Consequently, the Bertrands argue that the PCF waived its right to contest the JNOV ruling. The court agreed with the Bertrands and granted their Motion to Strike, deciding to consider only the issues related to the jury's failure to award past lost wages and the general damage award.

The Bertrands argue that the jury erred by not awarding Talesha lost wages for nine and a half months, asserting that special damages are justified due to the established liability of Dr. Kudla. They claim that uncontested evidence supports their request for lost wages. In contrast, the Patient Compensation Fund (PCF), representing Dr. Kudla, argues that Talesha is not entitled to lost income, pointing to unclear testimony from family business bookkeeper Patricia Smith regarding Talesha's return to work and the income allocation from her husband, James. The PCF highlights that Talesha testified she voluntarily stopped working to care for her children, implying this supports the jury's decision against awarding lost wages.

In Louisiana, special damages must be proven with reasonable certainty, including past and future lost earnings, as established in Cottle v. Conagra Poultry Co. Plaintiffs bear the burden of demonstrating actual wage loss and the duration of work missed due to the incident. The court notes that an award of special damages is reviewed under the manifest error standard, contrasting with the abuse of discretion standard for general damages. The trial court partially granted and denied the Bertrands' motion for judgment notwithstanding the verdict (JNOV) regarding four aspects, including special damages for lost income, which were denied. According to Louisiana law, a JNOV is appropriate only when the evidence overwhelmingly favors the moving party, and the trial court's refusal to grant it can only be overturned if manifestly erroneous. The record includes Smith's testimony supporting the Bertrands' position.

Smith began working for the Bertrands’ automobile company in 2002 and transitioned from secretarial tasks to bookkeeping. Talesha, who worked at the company until October 2004, left for maternity leave for her third child, born in December 2004. She earned approximately $4,900 per month in 2004 and planned to return to work in 2005 but did not do so, instead remaining out of the workforce until 2011 due to her fourth pregnancy. Talesha frequently visited the office in 2005, despite being pregnant, and described feeling overwhelmed. She has four children, with her fourth child born in January 2006. 

In her testimony, Talesha acknowledged that she never officially returned to work after her third child and only requested compensation for the period during her fourth pregnancy when she was unable to work. She was not advised by any physician against returning to work but cited the challenges of managing three small children while pregnant as a reason for not resuming her job. During cross-examination, Talesha admitted feeling she could not handle her existing children while pregnant with her fourth. Her husband James testified that the plan was for her to recover from her pregnancy and establish her routine, although the timing was uncertain.

Talesha took several months off after her third pregnancy to recover and intended to return to work in 2005 but did not due to a subsequent pregnancy. Testimonies indicated that she had planned her return to work and had been earning approximately $4,900 per month in 2004. She sought lost wages specifically for the nine-and-a-half months she was pregnant with her fourth child, which amounted to $46,550. The trial court, while ruling on the Bertrands' motion for judgment notwithstanding the verdict (JNOV), acknowledged the jury's discretion in evaluating credibility and evidence concerning lost wages, ultimately denying the JNOV. However, the appellate court found the jury's failure to award lost wages to be manifestly erroneous and reversed the trial court’s decision, awarding Talesha the claimed lost wages.

Regarding general damages, the Bertrands argued the jury's $50,000 award was inadequate and contended it should have been at least $150,000. The PCF countered that the case cited by the Bertrands was distinguishable from the current situation.

The PCF argues that the jury's verdict is grounded in the evidentiary facts presented. In Louisiana, general damages, which encompass mental and physical suffering, loss of enjoyment, and other non-monetary losses, are not easily quantifiable. The Louisiana Supreme Court in Youn v. Maritime Overseas Corp. established a standard for reviewing such damage awards, indicating that an initial assessment should determine if the award constitutes an abuse of discretion by the trier of fact. Only upon finding such abuse can previous awards be referenced to establish reasonable compensation limits. Additionally, a judgment notwithstanding the verdict (JNOV) can be overturned only if it is manifestly erroneous.

The Leyva case illustrates this process, where the plaintiff accused her physician of negligence during a tubal ligation, leading to pain and anxiety about her fertility. Initially, the jury favored the physician, but upon appeal, the court found negligence and awarded the plaintiff $50,000 in general damages after considering her significant physical and emotional distress. The Bertrands argue that Talesha should receive more than $50,000 for her general damages, citing the precedent set in Leyva and asserting that the jury's award was unreasonably limited following the birth of her fourth child.

The Bertrands argue that the jury's failure to award damages for loss of income and only a partial recovery of medical expenses indicates a significant error that needs correction by the court. They reference the case of Smith, 797 So.2d 151, where the plaintiffs received a general damages award of approximately $145,000.00 for pain and suffering related to a medical malpractice incident involving an undesired pregnancy due to a physician's negligence. The Bertrands assert that this amount, given the ten-year gap, should be considered a baseline for general damages in their current case.

In Smith, the plaintiffs faced emotional and financial distress due to an unexpected pregnancy after taking steps to avoid further children, which resulted in complications and additional stress throughout the pregnancy. The court found no abuse of discretion in the damages awarded. 

Talesha, the plaintiff in the current case, experienced emotional turmoil and physical discomfort during her fourth pregnancy, characterized as mostly normal but complicated by concerns about gestational diabetes and the impact on her existing children. Dr. Schorr, Talesha's obstetrician, testified that she was not classified as high-risk and did not experience significant complications during or after her pregnancy. Talesha's testimony reflected a deep emotional impact from the unexpected pregnancy, expressing feelings of devastation and neglect towards her other children.

James testified that he informed Talesha she could not be pregnant with their fourth child due to her tubal ligation after their third child. Throughout the fourth pregnancy, he noted Talesha's emotional instability and the challenges they faced, describing their life as a "roller coaster." The case shares similarities with prior cases, particularly Smith, where the Bertrands also took precautions to avoid further pregnancies, with Talesha's incomplete tubal ligation resulting in an unexpected pregnancy. Both Talesha and the plaintiff in Leyva experienced failed tubal ligations, although Leyva did not result in a subsequent child. The trial court's denial of an increase in the jury's general damage award of $50,000 to Talesha was found to be an abuse of discretion. The court had to assess if the evidence favored the Bertrands sufficiently to warrant a contrary verdict regarding the need for increased general damages. The trial court expressed discomfort in altering the jury's decision, citing the possibility that the jury deemed the $50,000 sufficient due to the birth of a healthy baby. However, the reviewing court disagreed, asserting there was insufficient basis for the jury’s conclusion. Consequently, the denial of the Bertrands’ motion for judgment notwithstanding the verdict (JNOV) was reversed, granting an increase in general damages to $150,000. Additionally, the court reversed the denial of special damages for lost wages, awarding Talesha $46,550 for lost wages from May 31, 2005, to March 15, 2006. Costs of the appeal were assigned to the Louisiana Patient’s Compensation Fund, with clarification that references to the Fund include both the Fund and its Oversight Board. The Bertrands identified May 31, 2005, as the start date for the wage loss claim.