We granted certiorari to determine whether the district court had the right to
FACTS AND PROCEDURAL HISTORY
On October 2, 1995, Lisa VaSalle was shopping in a Wal-Mart store located in Moss Bluff, Louisiana. As she stooped down in front of a magazine rack, Ms. VaSalle was struck by a shopping cart being pushed by a Wal-Mart employee. Initially, Ms. VaSalle did not report any injuries and did not seek immediate medical treatment. Later, however, Ms. Va-Salle consulted with a doctor who had treated her for a previous back injury. After a period of conservative treatment, Ms. VaSalle's doctor ultimately recommended that she undergo back surgery.
Ms. VaSalle and her husband filed the instant suit against Wal-Mart Stores, Inc., its employee, Glenn Goodeaux, and its insurer, National Union Fire Insurance Company of Pittsburgh, Pennsylvania (collectively referred to as "Wal-Mart" or "defendants"). The matter was tried before a jury in September 1998. At the close of the evidence, the district court entered a directed verdict in favor of plaintiffs on the issue of liability, finding that Wal-Mart was 100% at fault in causing Ms. VaSalle's accident and resultant injuries. Subsequently, the jury awarded plaintiffs a total of $70,000 in damages, including $15,000 in past medical expenses, $20,000 in future medical expenses, $25,000 in pain and suffering, and $10,000 in future loss of earning capacity. The jury made no awards for permanent disability or for Mr. VaSalle's loss of consortium.
After the district court signed a judgment in conformity with the jury's verdict, plaintiffs filed a timely motion for JNOV, or alternatively for additur or new trial. After a contradictory hearing on the motion, the district court, on January 29, 1999, signed a ruling entitled "Opinion" wherein it found that the jury's award was inadequate and that additur was warranted. The court determined plaintiffs were entitled to a total of $426,628.69 in damages, including $15,128.69 in past medical expenses, $32,000 in future medical expenses, $250,000 in pain and suffering and disability, $114,500 in future loss of earning capacity, and $15,000 in loss of consortium. The district court gave Wal-Mart fifteen days to request a new trial or agree to the additur. The court's "Opinion" concluded with the sentence, "A judgment to this effect will be signed when presented."
On February 5, 1999, Wal-Mart filed a motion objecting to the additur and requesting a new trial. Attached to Wal-Mart's motion was a proposed order granting plaintiffs' motion for a new trial and re-fixing the case for trial. The district court never acted on this order. On February 18, 1999, plaintiffs filed a motion seeking reconsideration of their original motion for JNOV, which had not been mentioned in the trial court's January 29, 1999 "Opinion." Following another contradictory hearing, the district court signed a judgment granting a JNOV and awarding plaintiffs damages in the total amount of $426,628.69, the same amount set forth in the January 29, 1999 "Opinion." In a separate "Opinion" signed on March 30, 2000, the district court stated that the jury's award was abusively low
Wal-Mart appealed the district court's judgment. In an opinion not designated for publication, the court of appeal affirmed. VaSalle v. Wal-Mart Stores, Inc., 00-0950 (La.App. 3 Cir. 12/6/00), 778 So.2d 108. The court of appeal found that because the district court's January 29, 1999 "Opinion" was never reduced to judgment, Wal-Mart's right to a new trial under La. C.C.P. art. 1814
We granted certiorari upon Wal-Mart's application to consider the correctness of the court of appeal's judgment. VaSalle v. Wal-Mart Stores, Inc., 01-0462 (La.4/20/01), 790 So.2d 8.
LAW AND DISCUSSION
In its first assignment of error, Wal-Mart contends that the trial court's January 29, 1999 ruling granting the additur was a final, appealable judgment. Thus, Wal-Mart argues, the court's judgment granting the JNOV made a substantive change to that earlier judgment in violation of La. C.C.P. art. 1951, which allows amendment of a final judgment only to alter the phraseology of the judgment, but not the substance, or to correct errors of calculation.
It is well-settled that prior to final judgment a district court may, at its discretion and on its own motion, change the result of interlocutory rulings it finds to be erroneous. Babineaux v. Pernie-Bailey Drilling Co., 261 La. 1080, 262 So.2d 328, 332 (1972) ("[I]nterlocutory orders overruling... peremptory exceptions cannot be binding upon the trial court when it
La. C.C.P. art. 1841 provides that a final judgment is one that determines the merits in whole or in part. Concomitantly, a judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. La. C.C.P. art. 1841. Article 1814, which provides for remittitur and additur, does not address the status to be afforded the ruling by the trial court giving a party a time limit within which he may consent to the additur or remittitur. Furthermore, this court has never addressed this issue. Consequently, we may look to other jurisdictions with similar rules for guidance in making this determination.
An issue similar to that raised in the instant case has recently been addressed by the Sixth Circuit Court of Appeals. In Anderson v. Roberson, 249 F.3d 539 (6th Cir.2001), the court of appeals explained that a district court's order giving plaintiff a choice between remittitur or a new trial is not a final, appealable order.
Id. at 542-43 (citations omitted). The Sixth Circuit's view is in accord with that of other courts of appeals which have held that the district court's ruling offering a party the choice between remittitur and new trial is incomplete, interlocutory, and not appealable. See, e.g., Higgins v. Smith Int'l, Inc., 716 F.2d 278 (5th Cir. 1983) (disavowed on other grounds by Overman v. Fluor Constructors, Inc., 797 F.2d 217 (5th Cir.1986)); Eaton v. National Steel Prods. Co., 624 F.2d 863 (9th Cir.1980); Evans v. Calmar S.S. Co., 534 F.2d 519 (2d Cir.1976).
The reasoning of the Anderson court is sound and we agree with it. The district court's January 29, 1999 ruling giving defendants a choice between additur and new trial was not a final judgment. The ruling did not determine the merits of the action. Rather, as provided for by La. C.C.P. art. 1814, it gave defendants a time limit within which they could consent to an additur as an alternative to a new trial and, as such, was an interlocutory ruling. As explained above, defendants' motion rejecting the additur and requesting a new trial did not end the matter. The district court never entered a final order based upon defendants' election. Instead, it declined to sign defendants' proposed order granting a new trial and, choosing to set aside its January 29, 1999 interlocutory ruling, granted plaintiffs' previously-urged motion for JNOV. In making this decision, the trial court acted within its authority because its ruling giving defendants the option to agree to an additur or submit to a new trial was an interlocutory ruling. It had the right, upon finding it had erred in issuing its decision, to set aside that interlocutory ruling.
In sum, then, the district court's January 29, 1999 ruling was an interlocutory order denying plaintiffs' motion for JNOV and giving defendants the option of submitting to an additur or a new trial. It was not a final, appealable judgment and defendants' timely motion rejecting the additur and accepting the new trial did not change the status of the court's ruling. The district court, upon finding it had erred in issuing the interlocutory order, had the right to set it aside prior to the issuance of a final judgment. Thus, the district court was acting within its authority when it signed the April 13, 2000 judgment granting JNOV in favor of plaintiffs.
Wal-Mart argues that plaintiffs' motion seeking reconsideration of their original motion for JNOV, filed February 18, 1999, was untimely and unauthorized by the Code of Civil Procedure and, as it was the vehicle and the authority for the trial court to reverse its January 29, 1999 ruling, could not have been considered by the court. We need not, however, determine whether the motion for reconsideration has a place in our trial practice or whether the motion, if it is a valid motion, was timely filed because this motion was not the source of the district court's authority for granting plaintiffs' motion for JNOV. As explained above, a trial court may correct an interlocutory ruling it later determines was erroneously issued on its own motion. Because the judge had that right, he had the right to accomplish the same end indirectly by acting on plaintiffs' request that he reconsider his ruling. See Labourdette at 548.
Having determined that the trial court was acting within its authority when it set aside its ruling giving defendants the option to choose between additur and a new trial and granted a JNOV in favor of plaintiffs, we must now consider whether the JNOV was proper on the merits of the case.
La. C.C.P. art. 1811 provides for and controls the use of JNOV. A JNOV may be granted on the issue of liability or on the issue of damages or on both issues. La. C.C.P. art. 1811(F). Although this article does not specify the grounds upon which the trial court may grant a JNOV, this court has set forth the criteria to be used in determining when a JNOV is proper:
Joseph v. Broussard Rice Mill, Inc., 00-0628, pp. 4-5 (La.10/30/00), 772 So.2d 94, 99 (citations omitted). On appellate review of a JNOV, the court must first determine whether the trial judge erred in granting the JNOV by using the aforementioned criteria in the same way as the trial judge in deciding whether to grant the motion. Id. at p. 5, 772 So.2d at 99. That is, the court must determine whether the "facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable persons could not arrive at a contrary verdict." Id. If reasonable persons might reach a different conclusion, then the trial judge erred in granting the motion and the jury verdict should be reinstated. Id.
The trial court granted a JNOV because it found the jury's award was abusively low and reasonable men could not differ as to the verdict. On appeal, the court of appeal affirmed this determination, finding the jury's determination of damages was unreasonable. In brief to this court, Wal-Mart argues that JNOV was improper because reasonable, fair-minded jurors could have arrived at differing damage awards and, furthermore, the evidence overwhelmingly supports the jury's evaluation of the evidence. After reviewing the record in this case, we find that reasonable minds could differ on the entitlement to and calculation of damages. We therefore conclude the trial court erred in granting the JNOV.
Because the trial court directed a verdict as to liability in this case, a decision which was not appealed, the only issue for the jury was the amount of damages, if any, to be awarded to plaintiffs. The JNOV granted by the trial court was therefore directed only to the issue of damages. On this issue, the record reveals that plaintiff was squatting in front of a magazine rack when she was struck in her lower back by a Wal-Mart shopping cart carrying trash bags filled with light trash such as empty candy boxes and register tapes and pushed by Glenn Goodeaux, a Wal-Mart employee. Glenn Goodeaux testified he was pushing the cart slowly when he struck Ms. VaSalle. He also testified that plaintiff appeared to be shaken after the accident, but when he asked her if she was okay, she said she was fine. Delores Bruns, a Wal-Mart employee who was working near the site of the accident when it occurred, testified that she did not witness the accident, but that she saw Ms. VaSalle immediately following the accident and she looked "kind of stunned."
Ms. VaSalle testified that the impact of the cart was "very severe" and the pain was of a kind she had never experienced before. She also testified she had a knot on her head following the accident. Plaintiff further testified that she thought she was okay after the accident, was embarrassed about it happening, and just wanted to get out of the store. When plaintiff returned to her truck where her husband was waiting for her, she felt light-headed, but refused her husband's offer to take her to the emergency room. The next day, however, she called the store to make an accident report and made an appointment to see a doctor. Plaintiff first saw Dr. Bernauer three weeks after the accident. She testified that at that time she had a slight concussion, a burning sensation coming from the knot on her head, and dizzy spells for four to six weeks. She returned to the doctor four weeks later and, by that time, had lower back pain. The doctor prescribed physical therapy which she attended for eight weeks. Plaintiff eventually
Plaintiff also testified that she had been involved in two automobile accidents prior to the accident at Wal-Mart. Plaintiff was treated by Dr. Bernauer for about two years following one of the accidents, which occurred in 1987. Plaintiff testified that she did not injure her low back in either of the two accidents prior to the one at issue. On cross-examination, however, plaintiff was presented with a deposition she gave relating to a 1983 accident in which she stated she "had some trouble with my lower back." Additionally, Dr. Bernauer's report relating to plaintiff's treatment following the 1987 accident states that her diagnosis is "cervical, thoracic and lumbar strain." Plaintiff admitted that the lumbar strain referred to her low back and, when asked if she injured her low back a second time after the 1987 automobile accident, replied, "I guess so...." Plaintiff testified she could not explain why another report from Dr. Bernauer made about a year later stated that her diagnosis was "cervical and lumbar strain."
On further cross-examination, plaintiff, who was employed as a house cleaner prior to the accident, admitted that, up until four weeks prior to trial, she cleaned more houses after the accident than before the accident. Consequently, she earned more money after the accident than before the accident. Plaintiff also admitted that she did not tell the truth at her deposition regarding one job she had as a house cleaner at the time of the accident. Finally, plaintiff conceded she did yard work up until six weeks prior to trial, took care of her plants, washed her car, and went on vacation to Disney World.
Plaintiff's husband testified that, after the accident, plaintiff had a red spot on her back which eventually darkened into a bruise and a knot on her head. Mr. VaSalle testified that plaintiffs injuries seemed minor at first, but then got worse as time went on. In describing how plaintiffs injuries affected their relationship, Mr. VaSalle testified they were grouchier with each other, their sex life was not as active as it once was, Ms. VaSalle was hard to live with, and he and his daughter had to perform chores Ms. VaSalle used to do.
Plaintiffs also presented the testimony of Dr. Dale Bernauer, an orthopaedic surgeon, who treated plaintiff. Dr. Bernauer testified that the reference to "lumbar strain" in his reports of the earlier accidents was a typographical error. Dr. Bernauer stated that plaintiff's CT scan showed a right disk protrusion at L5-S1 abutting the S-1 nerve root and some mild diffused disk bulging from L2-3 to L4-5. Additionally, the film showed that the disk was protruding enough to press on the nerve and cause pressure on the nerve. Dr. Bernauer further testified that plaintiff's CAT scan also confirmed a problem at L5-S1. He also stated that tests revealed a worse disk protrusion at L4-5 than at L5-S1. Dr. Bernauer explained these findings would be consistent with plaintiff's complaints of pain in the legs and hips. Dr. Bernauer testified that plaintiff needs surgery to remove the disk at L4-5 and possibly the disk at L5-S1. The doctor testified it is more probable than not that plaintiff will need a fusion at both levels. He testified that the total cost of the surgery would be between $28,000
Plaintiffs also called Dr. Kevin Gorin, a physician accepted as an expert in the field of physical medicine, rehabilitation and pain medicine. Dr. Gorin testified that he first saw plaintiff about two years after the Wal-Mart accident and her major complaint was lower back pain radiating intermittently down her right leg. He prescribed anti-inflammatory medication and a membrane stabilizing medication for treatment of plaintiff's leg pain. He also recommended a supervised wellness and fitness program and injections into her back to facilitate a better level of activity and enhanced pain control. Over time, Dr. Gorin had to use stronger controlled substances and muscle relaxants to ease plaintiffs pain. Dr. Gorin testified that tests he performed showed some type of nerve root or peripheral nerve injury. Dr. Gorin further testified that he had done everything he could for her from a conservative and even a semi-aggressive standpoint, but plaintiff had not experienced any level of sustained relief. On cross-examination, Dr. Gorin admitted that there was minimal evidence of disk pathology as a generator of pain based on objective tests performed a year and nine months after the accident.
Dr. Thomas Ford, an orthopaedic surgeon who examined Ms. VaSalle at defendants' request in March 1997, testified that plaintiff had no objective evidence of nerve root injury or irritation when he examined her. Dr. Ford opined there was no motor deficit and no sensory deficit in the L4 or L5 nerve root distribution on his examination of Ms. VaSalle. Dr. Ford testified he saw no evidence of a right S-I joint dysfunction or right sciatica radiculopathy. Dr. Ford further testified that he reviewed the films of plaintiffs tests and saw no evidence of any significant pressure on her nerve roots from the lumbar spine. Dr. Ford concluded that plaintiff has no need for surgery.
Finally, plaintiffs called Dr. Charles Bettinger, a forensic economist and statistician who was recognized as an expert in the field of forensic economics. Dr. Bettinger testified that if plaintiff is totally disabled, her loss of earning capacity would be valued at $229,070. He further testified that if plaintiff is 50% disabled, then her loss of earning capacity would be approximately $114,500.
Subsequent to the presentation of this evidence, the parties stipulated that Ms. VaSalle had incurred medical expenses in the amount of $15,128.69. Defendants pointed out that they agreed that this amount of medical expenses was incurred by plaintiff, but disputed the causation and necessity for these medical expenses.
At the close of trial, the jury awarded plaintiffs a total of $70,000 in damages. This award included $15,00 in past medical expenses, $20,000 in future medical expenses, $25,000 in past, present, and future mental and physical pain and suffering, and $10,000 in future loss of earning capacity. The jury made no award for permanent disability or loss of consortium for Mr. VaSalle. After considering the record in its entirety, we find these awards were reasonable based on the evidence presented. It is apparent the jury believed Ms. VaSalle sustained some damages
La. C.C.P. art. 1811 makes it clear that a motion for JNOV may be joined with a motion for new trial or a new trial may be moved for in the alternative. The article provides that if the motion for JNOV is granted, the court shall rule on the motion for new trial if one was made by determining whether it should be granted if the JNOV is thereafter reversed. La. C.C.P. art. 1811(C). A new trial shall be granted, upon contradictory motion, where: (1) the verdict or judgment appears clearly contrary to the law and evidence; (2) important evidence is discovered after trial; or (3) the jury was bribed or behaved improperly so that impartial justice was not done. La. C.C.P. art. 1972. Additionally, La. C.C.P. art. 1973 provides that a new trial may be granted "in any case if there is good ground therefor, except as otherwise provided by law."
In the instant case, plaintiffs moved for a new trial as an alternative to their motion for JNOV. The trial court's judgment granting a JNOV, however, did not address plaintiffs' alternative request for a new trial as required by art. 1811. Nevertheless, sending this particular matter back to the trial court for it to rule on the motion for new trial would be contrary to the concept of judicial economy and the interest of the parties in having this long-standing lawsuit concluded. Because we have previously concluded that the jury's verdict is reasonable in light of the evidence presented, we find that plaintiffs are not entitled to a new trial.
Although the trial court acted within its authority when it reconsidered its interlocutory ruling giving defendants the option to choose additur or new trial, it erred when it granted JNOV on the merits of this case. Consequently, the court of appeal erred in affirming the trial court's JNOV. After reviewing the record in the instant matter, we conclude the jury's verdict was reasonably supported by the evidence. Plaintiffs are therefore not entitled to a JNOV or a new trial. In light of these findings, we hereby reinstate the jury's verdict.
Labourdette at 548.