Lombas v. Southern Foods5/30/2000
AMENDED AND AFFIRMED
This suit arises out of an automobile accident. Plaintiff, William Lombas III, was backing his car when a milk truck in front of him, also backing up, struck the front of his car. Also named as plaintiffs were his wife, Tammy Lombas, and his three children, who raised claims of loss of consortium. Named as defendants were Southern Foods, Inc., d/b/a Barbe's Dairy (hereinafter "Barbe's"), its insurer Royal Insurance Company, and its employee, Keefe Danos, the driver of the truck.
Shortly before trial, Mr. Lombas died of causes unrelated to the accident, and Tammy Lombas, in her capacity as succession representative for the estate of William Lombas III, was substituted as party plaintiff. At the start of trial, Keefe Danos was dismissed from the suit.
Trial by jury was held on August 2 - 4, 1999. At its conclusion, the jury returned a verdict in favor of plaintiffs finding that Keefe Danos was 97% at fault in the cause of the accident. The jury awarded damages as follows: pain and suffering, past - $15,000.00; medical expenses, past - $15,000.00; lost wages and earning capacity - $12,000.00. The jury further found that Tammy Lombas and her three sons suffered loss of consortium and awarded a lump sum of $11,000.00 for those losses.
In accordance with the jury verdict, the trial court rendered judgment in favor of plaintiff, Tammy Lombas, individually and as succession representative for William Lombas, III for $40,740.00. The trial court also rendered judgment in favor of Tammy Lombas, individually and on behalf of her minor children for $10,670.00.
After the denial of their Motion for Judgment Notwithstanding the Verdict on the issue of damages, plaintiffs filed this appeal.
FACTS
Mr. Lombas was an independent contractor for the Times Picayune. On April 12, 1997, he was delivering papers with his wife and brother-in-law, Tillman Carolese. Lombas drove down a narrow lane, and pulled his car behind a Barbe's milk truck in order to "throw" or deliver a paper. He then began to back up in the lane. The milk truck also began backing up, and it ran into the front of Mr. Lombas's car.
Mr. Lombas finished his route. Shortly after he returned home, he began to experience back and neck pain, and he sought treatment at the West Jefferson Emergency Room. X-rays taken were within normal limits.
On April 14, 1997, Mr. Lombas went to Dr. John Schiro, a general surgeon, who diagnosed cervical spasm and strain.
On April 25, 1997, Mr. Lombas saw Dr. Narinda Gupta, who practiced anesthesiology and pain management. At that time, Mr. Lombas had complaints of severe pain in his neck, back and shoulders, and he was also suffering from headaches. Upon observation, Mr. Lombas's gait indicated that he was in pain. On examination, Dr. Gupta found that his upper and mid back muscles were in spasm. Dr. Gupta considered that Mr. Lombas was totally disabled at that time, and he prescribed pain and anti-inflammatory medications, and muscle relaxants. Dr. Gupta also treated Mr. Lombas with trigger point injections to relieve pain. On Mr. Lombas's next visit of May 23, 1997, Dr. Gupta observed a significant decrease in range of motion and severe muscle spasms of the back. Mr. Lombas saw Dr. Gupta twice in June, with continued complaints of pain.
Mr. Lombas then began treatment with Dr. Robert Fleming, an orthopaedic surgeon. On his first visit of June 23, 1997, Mr. Lombas complained of severe neck pain, and also pain in his lower back which was aggravating but not debilitating. A physical examination revealed muscle spasms in the left neck and discomfort to touch of the lower bac
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