Kimberly and Todd Thibodeaux, Individually and on Behalf of Their Minor Child, Gabrielle Thibodeaux v. James F. Donnell, M.D.

Supreme Court of Louisiana
FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #004

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 20th day of January, 2017, are as follows:

BY CRICHTON, J.:

2016-C -0570 KIMBERLY AND TODD THIBODEAUX, INDIVIDUALLY AND ON BEHALF OF
THEIR MINOR CHILD, GABRIELLE THIBODEAUX v. JAMES F. DONNELL,
M.D. (Parish of Terrebonne)

Knoll, J, retired, participated in this decision which was argued
prior to her retirement.

For the reasons set forth below, we reverse the judgment of the
court of appeal and remand for the court of appeal to reconsider
its awards under the principles set forth in Mart. REVERSED AND
REMANDED.

WEIMER, J., dissents in part and concurs in part and assigns
reasons.
JOHNSON, C.J., concurs in part and dissents in part and
assigns reasons.
GUIDRY, J., concurs and assigns reasons.
01/20/17

SUPREME COURT OF LOUISIANA

NO. 2016-C-0570

KIMBERLY AND TODD THIBODEAUX, INDIVIDUALLY AND ON
BEHALF OF THEIR MINOR CHILD, GABRIELLE THIBODEAUX

VERSUS

JAMES F. DONNELL, M.D.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIRST CIRCUIT, PARISH OF TERREBONNE

CRICHTON, J. 1

We granted the writ in this medical malpractice case to determine whether

the court of appeal properly assessed damages under the principles set forth in

Coco v. Winston Industries Inc., 341 So. 2d 332 (La. 1976). We find that, because

the court of appeal found manifest error in the jury’s factual findings, the court

should have instead performed a de novo review of damages under the principles

outlined in Mart v. Hill, 505 So. 2d 1120 (La. 1987). For the reasons set forth

below, we reverse the judgment of the court of appeal and remand to the court of

appeal for it to reconsider its decision under the principles set forth in Mart.

BACKGROUND

In 2003, plaintiff Kimberly Thibodeaux (then 37 years old), married to Todd

Thibodeaux, became pregnant with her fourth child. Dr. James Donnell was her

obstetrician-gynecologist throughout her pregnancy. During the course of the

pregnancy, Mrs. Thibodeaux was diagnosed with complete placenta previa and, in

1
Knoll, J., retired, participated in this decision which was argued prior to her retirement.
1
mid-November, at approximately 29 weeks pregnant, she was hospitalized for four

days at Terrebonne General Medical Center (“TGMC”) in Houma, for vaginal

bleeding secondary to placenta previa. On November 18, upon Dr. Donnell’s

referral, she consulted a maternal/fetal medicine specialist who handled high risk

pregnancies; the specialist recommended rest, limited activity, and delivery of Mrs.

Thibodeaux’s child at 36-37 weeks gestation. The next day, November 19, Mrs.

Thibodeaux returned to TGMC with renewed vaginal bleeding and contractions.

Dr. Donnell delivered Gabrielle Thibodeaux via cesarean section on November 20.

After the baby’s delivery, Dr. Donnell was unable to remove the placenta

from Mrs. Thibodeaux’s lower uterine segment and encountered vigorous

bleeding. As a result, Dr. Donnell performed an emergency cesarean hysterectomy,

which entailed removal of plaintiff’s uterus and cervix. After completing the

hysterectomy, and while preparing to close the Mrs. Thibodeaux’s abdomen, Dr.

Donnell discovered a large laceration to her bladder.2 At that point, Dr. Donnell

considered a urologic consultation due to the size of the laceration, but he

ultimately repaired it himself. Dr. Donnell testified that he made this decision

because Mrs. Thibodeaux had “lost a lot of blood” and he wanted to close her

abdominal wall to avoid additional blood loss.

After completing the surgery, Dr. Donnell ordered a post-operative test to

determine if the bladder repair was successful. The test revealed that the bladder

sutures were obstructing Mrs. Thibodeaux’s ureters, the tubes that drain urine from

the kidney into the bladder. This obstruction was then confirmed by a cystoscopy

performed by a urologist, Dr. Robert Alexander, consulted by Dr. Donnell. The

same day as the birth and cesarean hysterectomy, Dr. Alexander reopened Mrs.

Thibodeaux’s abdomen, removed the bladder sutures to free the ureters, and re-

2
As also noted by the court of appeal, the record does not clearly establish what caused the
bladder laceration. For purposes of clarity, the allegation of breach is not that Dr. Donnell
created the laceration, but instead that he failed to properly repair it.

2
repaired the bladder laceration. Dr. Alexander also inserted a catheter in plaintiff’s

bladder and stents into her ureters to facilitate urine drainage from the kidneys to

the bladder. Mrs. Thibodeaux remained hospitalized for five days.

Mrs. Thibodeaux followed up with Dr. Alexander several weeks later, and

underwent separate procedures to remove the catheter and stents. Dr. Alexander

testified that, at that point, her urologic system was flowing properly; the bladder

was not leaking, and the ureters were functioning correctly. Mrs. Thibodeaux

followed up again with Dr. Alexander in late April 2004, at which time he

unsuccessfully attempted to distend her bladder. He determined her bladder had a

capacity of 300-350 cubic centimeters (ccs), less than the average bladder capacity

of 400-500 ccs for a person of her size.

Although her bladder healed, Mrs. Thibodeaux continued to see Dr.

Alexander for three years with irritative bladder symptoms, including urinary

frequency every 30-60 minutes, urgency, urine leakage, painful urination, painful

sexual intercourse, urination during sexual intercourse, excessive nighttime

urination, and abdominal pain. Dr. Alexander diagnosed her with interstitial

cystitis, also known as painful bladder syndrome, and prescribed medications, none

of which relieved plaintiff’s symptoms. Mrs. Thibodeaux last saw Dr. Alexander in

September 2007, when he again unsuccessfully attempted to distend her bladder.

At that point, he determined her bladder had a capacity of only 250 ccs. According

to Dr. Alexander, Mrs. Thibodeaux’s diminished bladder capacity is permanent.

Mr. and Mrs. Thibodeaux filed a request for medical review in November

2004, but the medical review panel expired before an opinion was issued. In

October 2006, the Thibodeauxs filed this medical malpractice suit against Dr.

Donnell, individually, and on behalf of their child, Gabrielle. The trial court

dismissed the suit as prescribed, but the court of appeal reversed, finding that the

suit was timely filed. Thibodeaux v. Donnell, 07-1845 (La. App. 1 Cir. 9/12/08),

3
994 So. 2d 612. This Court affirmed, holding that the case was not prescribed and

could go forward. 08-2436 (La. 5/5/09), 9 So. 3d 120.

The matter proceeded to a four-day jury trial in May 2014, which concluded

with a verdict in favor of the Thibodeauxs. As the court of appeal noted, the expert

witnesses disagreed as to whether Mrs. Thibodeaux’s symptoms were caused by

the failed bladder repair or by interstitial cystitis unrelated to the failed bladder

repair. Dr. Alexander testified that he had not treated Mrs. Thibodeaux before

November 2003, but that there was no evidence she had a history of these

symptoms before that time. He also testified, however, that interstitial cystitis has

no known cause and that it can occur in the absence of surgery or trauma to the

bladder. On the other hand, the Thibodeauxs’ expert, Dr. Fred Duboe, testified that

Dr. Donnell’s failed bladder repair contributed to Mrs. Thibodeaux’s reduced

bladder capacity and, consequently, her urinary frequency and urgency. Dr. Duboe

admitted, however, that the interstitial cystitis symptoms were “not as clear.”

After considering the evidence and testimony, the jury found that Dr.

Donnell breached the applicable standard of care in the treatment of Mrs.

Thibodeaux and that she was injured as a result of Dr. Donnell’s breach of the

standard of care. With respect to damages, the jury award was as follows:

Kimberly Thibodeaux

Physical pain and suffering (past, present, future): $0
Mental pain and suffering (past, present, future): $0
Permanent Disability: $0
Loss of enjoyment of life: $0
Medical expenses: $60,000

Todd Thibodeaux

Loss of consortium: $0

Gabrielle Thibodeaux

Loss of consortium: $0

Total Damages: $60,000

4
The trial court signed a judgment conforming to the jury verdict. Both parties filed

motions for judgments notwithstanding the verdict, which were denied.

Plaintiffs appealed, contending that the jury abused its discretion by

awarding special damages but failing to award general damages. Dr. Donnell did

not appeal the verdict. The court of appeal reversed in part, first holding that there

was a “reasonable factual basis in the record” to support the jury’s finding of

causation, specifically that (i) Dr. Donnell’s failed bladder repair caused injury to

Mrs. Thibodeaux, but (ii) all of Mrs. Thibodeaux’s mental or physical pain and

suffering, discomfort, inconvenience, and/or emotional trauma were not causally

related to Dr. Donnell’s malpractice. 15-0503, p.6-7 (La. App. 1 Cir. 2/24/16), 189

So. 3d 469, 475. The court of appeal then held that, because the jury found plaintiff

suffered “some injuries” causally related to the failed bladder repair, the jury

abused its discretion in failing to award plaintiff “some amount of general

damages.” Id., 15-0503 p.7, 189 So. 3d at 475. The court then posed the inquiry:

“The issue becomes, then, to what extent were Mrs. Thibodeaux’s injuries causally

related to Dr. Donnell’s failed bladder repair. . .” Id.

Following this Court’s decision in Coco v. Winston Industries, Inc., 341 So.

2d 332 (La. 1977), the court of appeal noted it must determine the “lowest amount

of general damages associated with those injuries reasonably within the jury’s

discretion.” Id. After a review of the evidence and after analyzing the range of

general damages awards for similar injuries, the court of appeal found that $50,000

was the lowest amount reasonably within the jury’s discretion and consistent with

the special damages award. Id., 15-0503 p.11-12, 189 So. 3d at 478-79. The court

of appeal also held that the jury manifestly erred in finding that Dr. Donnell’s

malpractice did not cause loss of consortium damages to Mr. Thibodeaux and

Gabrielle. The court concluded that the evidence established that both Mr.

Thibodeaux and Gabrielle suffered from Mrs. Thibodeaux’s inability to

5
accompany them in recreational activities they previously enjoyed and the

Thibodeaux’s sex life had been impacted “both quantitatively and qualitatively.”

Id., 15-0503 p.13, 189 So. 3d at 479-80. Based on the evidence—but “mindful that

Dr. Donnell’s failed bladder repair only caused some of their damages”—the court

of appeal found the appropriate loss of consortium awards to be $15,000 for Mr.

Thibodeaux and $5,000 for Gabrielle, the “lowest amount reasonably within the

jury’s discretion.” Id., 15-0503 p.14, 189 So. 3d at 480.

Plaintiffs filed a writ of certiorari in this Court, which was granted. 16-0570

(La. 6/3/16), 192 So. 3d 756.

DISCUSSION

As noted above, we granted the writ in this matter to determine whether the

court of appeal properly adjusted damages under the principles set forth in Coco v.

Winston Industries Inc., 341 So. 2d 332 (La. 1976). In Coco, the plaintiff filed suit

against his employer, seeking damages arising from the loss of several fingers that

occurred while operating a saw. The jury returned a verdict in favor of the plaintiff

for $350,000, and the court of appeal, on rehearing, reduced the damage award to

$140,000. Id. at 333-34. This Court reinstated the jury’s damage award, and

articulated the applicable standard of review for an appellate court seeking to

disturb a damage award:

[B]efore a Court of Appeal can disturb an award made by a trial court
that the record must clearly reveal that the trier of fact abused its
discretion in making its award. Only after making the finding that the
record supports that the lower court abused its much discretion can the
appellate court disturb the award, and then only to the extent of
lowering it (or raising it) to the highest (or lowest) point which is
reasonably within the discretion afforded that court. It is never
appropriate for a Court of Appeal, having found that the trial court has
abused its discretion, simply to decide what it considers an
appropriate award on the basis of the evidence.

Id. at 335 (emphasis added). The Coco Court held that the jury in that case “did not

abuse its much discretion” in assessing $350,000 in damages.

6
 There are several rationales for what has become known as the Coco Rule.3

The first rationale is that the “trier of fact has more direct contact with the parties,

the witnesses, and the evidence and thus can better evaluate the true extent of

plaintiff’s injury, whereas the court of appeal bases its decision solely on the

written record, briefs, and oral argument.” Clement v. Frey, 95-C-1119, 95-C-

1163, p.5-6 (La. 1/16/96), 666 So. 2d 607, 610. This fundamental principle has

roots in our Civil Code. See La. C.C. art. 2324.1 (“In the assessment of damages in

cases of offenses, quasi offenses, and quasi contracts, much discretion must be left

to the judge or jury.”). As this Court has stated, “[s]ince an award of damages for

personal injuries is of necessity somewhat arbitrary and also must vary greatly with

the facts and circumstances of each case, the trial court is entrusted with large

discretion making such awards, which discretion should not be disturbed on

appellate review.” Id. (quoting Gaspard v. LeMaire, 158 So. 2d 149, 160 (La.

1963)). Two other, related, considerations influence the Coco Rule. First, “the trial

court is in the best position to weigh the claimant’s testimony.” Id. And second,

“repeated substitution by an appellate court of its own opinion as to quantum for

that of the trial court, when combined with other appellate practices inherent in the

Louisiana system of appellate review of law and fact, may have a demoralizing

effect upon a trial judge in his assessment of his role in the judicial process.” Id.

(citing Frank L. Maraist, Procedure, 38 La. L. Rev. 503, 511 (1978)).

As we made clear several years after Coco, in Mart v. Hill, 505 So. 2d 1120

(La. 1987), the Coco Rule does not apply to every appellate review of a damages

award. Mart, which involved an automobile accident, was tried before a

commissioner, who found the plaintiff was 50% at fault. The commissioner

awarded no damages for the consequences of the accident beyond a certain date,

3
In their brief to the Court, plaintiffs requested that the Court overrule Coco. We expressly
decline to do so here and reiterate its ongoing vitality in the law.

7
finding that the plaintiff did not prove that his surgeries and disabilities beyond that

date were causally related to the accident. The commissioner recommended a total

damage award of $18,760.00, which was subject to the 50% reduction. Id. at 1121-

22. The court of appeal affirmed, but this Court reversed, finding that the lower

courts were “clearly wrong” and that the plaintiff’s disability was “causally

related” to the accident. Id. at 1127-28. We expressly found the Coco analysis

inapplicable and instead applied what was termed a “res nova”4—or de novo—

determination of damages:

The Coco principle of appellate review applies when an appellant
questions the adequacy of a monetary award in a case which is
otherwise uncomplicated by factual errors relating to the cause or
duration of the plaintiff’s disability. . . . Simply stated, Coco applies
when an appellate court is asked to correct a fact finder’s abuse of
discretion in assessing the appropriate monetary award for a given
injury. The principles are not applicable when a [de novo] review of
quantum must be made to compensate a plaintiff for damages which
the trial court did not believe were causally related to the accident.

Id. at 1128 (emphasis added). In other words, Coco’s highest/lowest principle does

not apply when a reviewing court disturbs a jury’s factual finding related to

causation. See Frank L. Maraist, 1 La. Civ. L. Treatise, Civ. Pro. § 14:14 (2d ed.)

(Nov. 2015) (“The ‘much discretion’ rule does not apply if there was error in the

trial court which interdicted the damage-determining process.”) (emphasis

added) (citing Mart).

Instead, as articulated in Mart, the proper standard where an appellate court

disturbs the trier of fact’s causation finding is the manifest error/clearly wrong

standard, under which the appellate court: (i) must find from the record that there is

no reasonable factual basis for the trial court’s finding, and (ii) must further

determine that the record establishes that the finding is clearly wrong (manifestly

erroneous). 505 So. 2d at 1127. After the reviewing court finds manifest error in a
4
In Mart, Justice Calogero used the term “res nova” rather than “de novo.” Here, however, we
will use the term “de novo,” because it is more commonly used in Louisiana. See Black’s Law
Dictionary (10th ed. 2014), de novo (“Anew”); Id., res nova (“1. An undecided question of law.
2. A case of first impression.”).

8
trier of fact’s finding, the court performs a de novo damages review unbound by

the limitations of Coco. 5

Considering these rationales, in Wainwright v. Fontenot, 00-0492 (La.

10/17/00), 774 So. 2d 70, the Court expounded on the principles of Coco. In

Wainwright—as in the case before us—the jury returned a verdict awarding

medical expenses, but declining to award general damages. The court of appeal

increased the medical expense award and awarded general damages to the plaintiff.

This Court reversed, reinstating the jury’s medical expense award and finding that

the jury did not abuse its discretion in declining to award general damages. The

Court held that there is “no bright line rule at work” to define when a trier of fact’s

damages award is an abuse of discretion. Id., 00-0492 p.9, 774 So. 2d at 75-76.

That is the case even where the jury awards special damages and no general

damages. Id. (“[I]t would be inconsistent with the great deference afforded the

factfinder by this court and our jurisprudence to state that, as a matter of law, such

a verdict must always be erroneous.”). The Wainwright Court cautioned, however,

that where a jury has awarded special damages but declined to award general

damages, “as a general proposition,” the verdict may “often” be so inconsistent as

to constitute an abuse of discretion. Id. 6

We now turn to the court of appeal’s opinion in this case to determine the

proper standard of review for an assessment of damages under these

circumstances: abuse of discretion or manifest error.

5
This distinction between Coco and Mart was reiterated in Ryan v. Zurich American Insurance
Co., 07-2312 (La. 7/1/08), 988 So. 2d 214. In Ryan, liability was stipulated by the defendants
before trial—i.e., causation was not at issue. Because Ryan was not complicated by causation
issues, the principles annunciated in Coco applied to the damages review. 07-2312, p.7-8, 988
So. 2d at 219. The Court distinguished Mart, noting that Ryan, unlike Mart, was not a case
“where a determination of the amount of damages to be awarded for that item was foreclosed by
a prior determination of lack of fault or causation.” Id., 07-2312, p.6, 988 So. 2d at 218.
6
In 2004, this Court considered the case Green v. K-Mart Corp., 03-2495 (La. 5/25/04), 874 So.
2d 838. In Green the court of appeal found no error in the jury’s finding that the accident caused
the plaintiff’s injuries—i.e., causation was not at issue—and this Court affirmed that finding and
proceeded to use the abuse of discretion standard to alter the damages award. For the reasons set
forth herein, Green is therefore inapplicable to the present case.

9
Causation and General Damages Findings Related to Mrs. Thibodeaux

In setting forth the jury’s finding of fact regarding Mrs. Thibodeaux’s

injuries, the jury verdict form read as follows:

INTERROGATORY NO. 1: Do you find by a preponderance of the
evidence that Dr. James Donnell breached the applicable standard of
care in the treatment of Kimberly Thibodeaux?

Yes X No ____

INTERROGATORY NO. 2: Do you find by a preponderance of the
evidence that Kimberly Thibodeaux was injured as a result of a breach
of the applicable standard of care by the defendant?

Yes X No ____

The only remaining finding from the jury related to Mrs. Thibodeaux was the

damages allocation; there was no additional finding related to causation. The court

of appeal initially stated that it found a “reasonable factual basis in the record” to

support the jury’s causation findings and applied the abuse of discretion standard

and Coco to its review of damages. However, after a review of the court of

appeal’s reasoning, we now hold that the court of appeal disturbed those findings

in several significant ways.

First, the court of appeal states that the jury’s award of “only $60,000 in

medical expenses suggests that the jury did not believe that all of Mrs.

Thibodeaux’s mental or physical pain and suffering, [etc.] were causally related to

Dr. Donnell’s medical malpractice.” 15-0503, p.6-7, 189 So. 3d at 475 (emphasis

added). But the words “suggests” and “all” indicate that the court of appeal is

reading information into the verdict form that simply is not present. Second, the

court of appeal held that, because the jury found Mrs. Thibodeaux suffered “some

injuries” causally related to the failed bladder repair, the jury abused its discretion

in failing to award plaintiff “some amount of general damages.” Id. (emphasis in

original). But again, the verdict form does not make this clear. Instead, after

finding the breach of the standard of care in the answer to the first question, the

10
jury seems to have assessed causation—without making any express allocation of

the extent of causation—to Dr. Donnell. Third, and relatedly, the court of appeal

endeavored to determine the “extent” to which Mrs. Thibodeaux’s damages were

“causally related” to the failed bladder repair, even though “extent” was not a

finding made by the jury at all. Id. (“The issue becomes, then, to what extent were

Mrs. Thibodeaux’s injuries causally related to Dr. Donnell’s failed bladder

repair.”).

Our review of the court of appeal’s analysis leads to the conclusion that, by

reading information regarding the scope or extent of causation into the verdict

form, the court of appeal altered the jury’s causation finding where the jury was

silent.7 Accordingly, despite stating it found a reasonable factual basis for the

jury’s determination, the court of appeal actually found the jury’s factual

determination to lack a reasonable factual basis and to be clearly wrong. Mart, 505

So. 2d at 1127. Though the court of appeal couched its review as abuse of

discretion, the court of appeal’s actions in disturbing and adjusting the jury’s

findings make clear that the court of appeal actually found manifest error—or, in

Professor Maraist’s articulation, an error “which interdicted the damage-

determining process.” 1 La. Civ. L. Treatise, Civ. Pro. § 14:14. 8 As explained

above, after a reviewing court finds manifest error in a trier of fact’s finding, that

court should perform a de novo damages review as articulated in Mart, unbound by

the highest/lowest limitations of the Coco Rule. Mart, 505 So. 2d at 1128-29.

7
This error by the court of appeal is unsurprising, because the court of appeal was forced to
interpret a verdict form that does not adequately address the complex factual issues presented in
the case. We observe here that a verdict form with more information could have assisted the
appellate court (and this Court) in interpreting the issues presented by this case. In any event, we
recognize that this issue is not before us, as Dr. Donnell did not appeal the verdict, nor did he file
a writ application here.
8
The dissent argues that the jury did in fact address the extent of the injury, because the jury
awarded no general damages to Mrs. Thibodeaux. But this interpretation of the verdict form falls
into the trap of extrapolating causation from the jury’s damages finding—exactly the mistake
made by the court of appeal here.

11
 The court of appeal therefore erred by limiting its award for Mrs.

Thibodeaux to “the lowest amount reasonably within the jury’s discretion and

consistent with the special damages award” pursuant to Coco. 15-0503, p.11, 189

So. 3d at 478.9 Because the court of appeal adjusted the jury’s causation finding,

thereby interdicting the damage-determining process, the court of appeal should

have reviewed damages de novo, as set forth in Mart, in order to compensate Mrs.

Thibodeaux for “damages which the [jury] did not believe were causally related to

the accident.” Mart, 505 So. 2d at 1128-29.

Loss of Consortium Claim Findings

With respect to the loss of consortium, service, and society damages claimed

by Mr. Thibodeaux and the minor child, the court of appeal examined the jury

verdict form, noting that, in its answers on the verdict form, the jury found that Dr.

Donnell’s breach of the applicable standard of care did cause injury to Mrs.

Thibodeaux, but that his breach did not cause a loss of consortium to Mr.

Thibodeaux or the child. 15-0503, p.12-13, 189 So. 3d at 479. But after performing

its own review of the medical and lay evidence in the case, the court of appeal

reversed that finding, holding that the “jury manifestly erred in finding that Dr.

Donnell’s failed bladder repair caused no damages” to the husband and child. Id.

(emphasis added). The court of appeal then determined the “appropriate award” for

damages under these circumstances was $15,000 for Mr. Thibodeaux and $5,000

for the minor child, by comparing the result to other cases and finding this amount

to be “the lowest amount reasonably within the jury’s discretion.” Id., 15-0503,

p.14, 189 So. 3d at 480.

9
The court of appeal also erred in stating that “[a] trier of fact abuses its discretion in failing to
award general damages when it finds that a plaintiff has suffered injuries causally related to the
accident that required medical attention.” 15-0503, p.6-7, 189 So. 3d at 475. As noted above—
and as the court of appeal acknowledges yet then ignores—Wainwright expressly declined to
draw such a bright line rule. Wainwright, 00-0492 p.9, 774 So. 2d at 75-76.

12
 The court of appeal correctly recognized that manifest error review applied

to the loss of consortium claims, because it adjusted the jury’s factual findings.

Mart, 505 So. 2d at 1128. However, the court of appeal failed to recognize the

implication of that holding. As explained above, after finding manifest error, the

court of appeal should have performed a de novo review in accordance with Mart,

unbound by the highest/lowest limitations of the Coco Rule. Id. at 1128-29.

CONCLUSION

The Coco Rule applies when the reviewing court determines that the trier of

fact abused its discretion when assessing damages. The Mart Rule, on the other

hand, applies when the reviewing court determines that there was error in the

jury’s factual findings and such error interdicted the damage-determining process.

Here, despite saying that there was a reasonable factual basis for the findings, the

court of appeal found error in the jury’s findings with respect to Mrs. Thibodeaux’s

general damages. With respect to the loss of consortium claims, the court of appeal

properly found manifest error, but then erroneously assessed damages using the

Coco principle. In both of these scenarios, an entirely de novo review under Mart

was required, rather than a limited damages review under Coco.

DECREE

Because the court of appeal adjusted the jury’s factual findings, such that it

plainly found “error” in the jury verdict, the court should have performed a de novo

review of damages under the principles outlined in Mart v. Hill, 505 So. 2d 1120

(La. 1987), unrestricted by the limitations set forth in Coco. For the reasons set

forth below, we reverse the judgment of the court of appeal and remand for the

court of appeal to reconsider its awards under the principles set forth in Mart.

REVERSED AND REMANDED.

13
01/20/17

SUPREME COURT OF LOUISIANA

NO. 2016-C-0570

KIMBERLY AND TODD THIBODEAUX, INDIVIDUALLY AND ON
BEHALF OF THEIR MINOR CHILD, GABRIELLE THIBODEAUX

VERSUS

JAMES F. DONNELL, M.D.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT,
PARISH OF TERREBONNE

WEIMER, J., dissenting in part and concurring in part.

In answering the interrogatories, the jury in this medical malpractice case

determined that defendant breached the applicable standard of care in his treatment

of Mrs. Thibodeaux and that the breach caused Mrs. Thibodeaux to sustain injury,

but not her husband or minor child. When asked to determine the amount of money

that would Afully and fairly compensate@ Mrs. Thibodeaux for the damage sustained

as a result of defendant=s breach of the applicable standard of care, the jury awarded

special damages for Mrs. Thibodeaux=s medical expenses, but declined to award

general damages. On appeal, the court of appeal determined that the jury=s finding

that Mrs. Thibodeaux was entitled to an award of special damages, but no general

damages was, under the facts, so inconsistent as to constitute an abuse of its much

discretion. Thibodeaux v. Donnell, 15-0503, p. 7 (La.App. 1 Cir. 2/24/16), 189

So.3d 469, 475. Given its determination that the jury=s failure to award general

damages was an abuse of discretion, the court of appeal then proceeded to fix an

award of general damages calculated as Athe lowest amount within the jury=s

discretion and consistent with the special damages award,@ in accordance with this

court=s directive in Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La. 1976)
(AOnly after making the finding that the record supports that the lower court abused

its much discretion can the appellate court disturb the [damage] award, and then only

to the extent of lowering it (or raising it) to the highest (or lowest) point which is

reasonably within the discretion afforded that court.@). Thibodeaux, 15-0503 at 11,

189 So.3d at 478. Because this approach seemed to conflict with the result in

Green v. K-Mart Corp., 03-2495 (La. 5/25/04), 874 So.2d 838 (a case in which

this court found an abuse of discretion in the jury=s failure to award general damages

despite awarding a substantial amount for past and future medical expenses, and then

affirmed the court of appeal=s de novo assessment of damages unconstrained by

Coco=s high/low limitations), we granted 1 this writ Ato determine whether the court

of appeal properly assessed damages under the principles set forth in Coco v.

Winston Industries, Inc..@ Thibodeaux v. Donnell, 16-0570 (La. __/__/2016),

slip op. at 1.

The issue we granted the writ to resolve is relatively straightforward.

Unfortunately, the majority=s resolution of that issue is not as straightforward.

After describing the competing approaches to appellate review of damages set

forth in Coco and Mart v. Hill, 505 So.2d 1120 (La. 1987), the majority re-frames

the issue this court granted the writ to address as whether Athe proper standard of

review for an assessment of damages under [the] circumstances [of this case] is

abuse of discretion or manifest error.@ Thibodeaux, slip op. at 9. However, this

court previously answered that question, and it did so in cases discussed but

ultimately dismissed by the majority as being inapplicable here.

1
Thibodeaux v. Donnell, 16-0570 (La. 6/3/16), 192 So.3d 756.

2
 In Wainwright v. Fontenot, 00-0492 (La. 10/17/00), 774 So.2d 70, this court

was Afaced with the somewhat anomalous situation in which a jury has determined

that the defendant is both legally at fault for the plaintiff=s injuries and liable to him

for his medical expenses incurred, yet has declined to make any award at all for

general damages, i.e., pain and suffering,@Bthe precise situation presented in this

case. Id., 00-0492 at 6, 774 So.2d at 74. Therein, the court reasoned:

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

Wainwright, 00-0492 at 8-9, 774 So.2d at 76 (emphasis added). The Wainwright

decision is not an outlier. Rather, it was followed by Green v. K-Mart Corp.,

supra, which affirmed that the standard of review in a case such as this one is abuse

of discretion. Id., 03-2495 at 7, 874 So.2d at 843-44 (AWhen, as here, the jury has

awarded special damages but has declined to award general damages, the reviewing

court must determine whether the jury=s finding >is so inconsistent as to constitute an

abuse of discretion.= Wainwright, 00-0492 at 8-9, 774 So.2d at 76. If so, only

then can the reviewing court perform a de novo review of the record. Id.@).

Rather than adhere to the abuse of discretion standard of review dictated by

Wainwright and Green, the majority recasts the issue as one involving the jury=s

Acausation@ or liability determination, thereby avoiding the deference due the jury=s

3
assessment of damages entirely. By tying the jury=s award of damages to the

liability determination, the majority errs both legally and factually.

In a negligence action, the plaintiff bears the burden of proving fault,

causation, and damages. Wainwright, 00-0492 at 5, 774 So.2d at 74. In

reviewing an award of damages, the court of appeal does not necessarily disturb the

determinations of fault and causation, as the majority here implies. Rather, as we

have explained, the jury=s determinations of fault and causation establish liability,

and liability implies some damage, but not specifically which damage or how much.

See Hall v. Brookshire Bros., Ltd., 02-2404, 02-2421, p. 11-12 (La. 6/27/03), 848

So.2d 559, 567. Having proven the defendant=s fault caused damage, a plaintiff

must further prove what damage, by kind and seriousness, was caused by defendant=s

fault. Id.

In this case, the majority looks to the interrogatories submitted to the jury and

essentially concludes that the jury made no finding as to this latter determinationBthe

extent to which Mrs. Thibodeaux=s damages were causally related to the bladder

repairBand that in order to reach that determination, the court must re-visit the

liability determination (the fault and causation interrogatories). See Thibodeaux,

slip op. at 10-11. In short, the majority reasons that, because there was no separate

interrogatory expressly addressing the Ascope or extent of causation,@ any alteration

of the jury award of damages necessarily entails alteration of the liability or

Acausation@ determination. Id. at 11. Otherwise, the majority seems to imply that

the verdict form, as written, allocates to defendant liability for all of the damages

claimed by Mrs. Thibodeaux, an allocation that is belied by the failure of the jury to

award any amounts for, by way of example, permanent disability (which Mrs.

4
Thibodeaux asked for, but which the jury did not award). See Thibodeaux, slip op.

at 4.

The problem with the majority=s analysis is that it overlooks the fact that there

was a line (in fact there were several lines) on the verdict form in which the jury was

asked to resolve the precise question regarding the Ascope or extent@ of the injuries

sustained by Mrs. Thibodeaux that the majority suggests was overlooked.2 Those

lines appear in Interrogatory No. 5, which asked: AWhat amounts of money would

fully and fairly compensate Kimberly Thibodeaux, Todd Thibodeaux and Gabrielle

Thibodeaux for the damages they sustained as a result of the breach of the applicable

standard of care?@ This interrogatory, and the answers thereto, represent the jury=s

determination as to the scope and extent of the damages sustained by Mrs.

Thibodeaux as a consequence of defendant=s breach of the applicable standard of

care. It is this Amixed factual-legal determination by the jury (that the tort victim is

entitled to reasonable medical expenses for immediate medical consultation and

treatment, but not for the further treatment or for general damages) [that] is entitled

to great deference,@ under the abuse of discretion standard of review announced in

Wainwright. See, Wainwright, 00-0492 at 1, 774 So.2d at 78 (Lemmon, J.,

subscribing to the opinion and assigning additional reasons).

Thus, I respectfully disagree with the majority=s determination that the

standard of review in this case (insofar as the award of damages to Mrs. Thibodeaux

is concerned) is manifest error. I believe, consistent with Wainwright and Green,

that in this case in which the jury has awarded special damages but declined to award

2
While I agree with the majority=s assessment that a more detailed verdict form would have made
the analysis in this case easier, I do not find that the absence of a more detailed version inhibits
our review to the extent the majority suggests.

5
general damages, it is the task of the reviewing court to determine whether the jury=s

finding Ais so inconsistent as to constitute an abuse of discretion.@ See Wainwright,

00-0492 at 8, 774 So.2d at 76.

In this regard, and as Wainwright notes, it is plaintiff=s burden to

affirmatively establish, by a preponderance of the evidence, that plaintiff (in this

case, Mrs. Thibodeaux) is entitled to general damages for pain and suffering. See

Id., 00-0492 at 10, 774 So.2d at 77. On review, the proper inquiry is whether there

was evidence in the record from which the jury could reasonably conclude that

defendant=s bladder repair, which required treatment in the form of a second surgery

to remove the errant sutures, resulted in no compensable pain and suffering. As the

court of appeal notes, the evidence on this point does not support such a finding.

That evidence establishes that after completing the surgery, successfully delivering

Mrs. Thibodeaux=s daughter, and stanching her profuse bleeding by means of the

emergency (and life-saving) hysterectomy, defendant ordered a post-operative

intravenous pyelogram (IVP) to determine if the bladder repair was successful.

During the three to four-hour period in which the test results were pending, Mrs.

Thibodeaux, who was producing little urine, experienced severe abdominal pain.

When the test results revealed that the bladder sutures were obstructing Mrs.

Thibodeaux=s ureters, defendant consulted urologist Dr. Robert Alexander, who,

after confirming the obstruction, re-opened Mrs. Thibodeaux=s bladder, removed

defendant=s sutures, and repaired the bladder laceration, removing some dead tissue

from the bladder in the process. Dr. Alexander inserted stents into Mrs.

Thibodeaux=s ureters and a suprapubic catheter into her bladder to facilitate urine

drainage. Mrs. Thibodeaux remained hospitalized for five days. The catheter was

6
removed by Dr. Alexander in a follow-up visit on December 9, 2003.3 The removal

of the stents followed shortly thereafter, on December 17, 2003.

Mindful of Wainwright=s reluctance to adopt a bright line rule regarding

when a jury=s award of medical expenses but no general damages will be so

inconsistent as to constitute an abuse of discretion, 4 I nevertheless agree with the

court of appeal=s assessment that, under the particular facts of this case, where the

jury determined through its award of medical expenses totaling $60,000 that Mrs.

Thibodeaux suffered injuries causally related to the bladder repair that necessitated

medical treatment, and where the evidence establishes that medical treatment caused

Mrs. Thibodeaux to endure some degree of pain and suffering, the failure to award

general damages was an abuse of discretion.

Given this conclusion, the question that presents itself is the one this court

granted writs to resolve: whether, after finding an abuse of discretion in the jury=s

failure to award general damages, the appellate court, in reviewing the evidence and

rendering an appropriate award, is nevertheless constrained by the principles of

deference announced in Coco to the lowest amount of general damages associated

with those injuries reasonably within the jury=s discretion. I find that Coco is

directly applicable here. This court=s decisions in Wainwright and Green firmly

establish that, in a case such as this one, where the jury has determined that the

defendant is both legally at fault for the plaintiff=s injuries and liable for medical

expenses incurred, yet has declined to make any award at all for general damages,

the standard of review is abuse of discretion. Since correction of the damage award

3
The surgery itself was performed on November 20, 2003.
4
See Wainwright, 00-0492 at 8-9, 774 So.2d at 76-77.

7
is based on finding an abuse of discretion, under Coco, the reviewing court is

necessarily limited to raising the inadequate general damage award to the lowest

amount reasonably within the jury=s discretion, because, as this court cautioned in

Coco: AIt is never appropriate for a Court of Appeal, having found that the trial court

has abused its discretion, simply to decide what it considers an appropriate award on

the basis of the evidence.@ Coco, 341 So.2d at 335. 5

As a result, and based on the foregoing, I respectfully disagree with the

majority=s determination that the court of appeal erred in its review and award of

general damages to Mrs. Thibodeaux. For the reasons expressed above, I believe

the court of appeal properly assessed the award of general damages under the

principles set forth in Coco.

However, while disagreeing with the majority as to the general damage award,

I agree with the majority=s conclusion regarding the court of appeal=s review of the

claims for loss of consortium. 6 As the majority notes, in its answers to the

5
Admittedly, there is loose language in both Wainwright and Green that might suggest the
opposite conclusion. However, Wainwright=s reference to a de novo review (A[o]nly after the
reviewing court determines that the factfinder has abused its much discretion can that court conduct
a de novo review of the record@) was clear dicta, as the court did not find an abuse of discretion on
the jury=s part and, thus, did not find it necessary to assess damages. Wainwright, 00-0492 at 8-
9, 774 So.2d at 76. To the extent that the court=s decision in Green to affirm the court of appeal=s
de novo assessment of general damages unconstrained by Coco rather than remand for a new
damage determination consistent with Coco=s limitations might suggest that Coco does not apply
once an abuse of discretion is found, I believe that such a suggestion is unwarranted. See id., 03-
2495 at 8, 874 So.2d at 844. There is no indication that the court of appeal=s failure to apply Coco
in its de novo review and award of general damages in Green was assigned as error or raised as
an issue before this court; therefore, the precedential value of this court=s decision simply affirming
the court of appeal=s damage award is questionable. The court certainly did not address the issue
directly.
6
I agree with the majority=s conclusion only insofar as it finds that once the court of appeal found
legal error in the jury=s conclusion that defendant=s actions did not cause Mr. Thibodeaux or
daughter Gabrielle to suffer a loss of consortium, the assessment of damages was not constrained
by Coco. I do not necessarily agree with the majority that the jury erred in finding that no loss of
consortium was proved in the first instance. However, the court of appeal so found, and defendant
did not apply to this court for a writ. As a result, this court cannot alter the court of appeal=s
liability determination to favor defendant.

8
interrogatories on the verdict form, the jury specifically found that defendant=s

breach of the applicable standard of care did cause injury to Mrs. Thibodeaux, but

that it did not cause a loss of consortium to either Mr. Thibodeaux or daughter

Gabrielle. In other words, the jury determined that the loss of consortium claims

were not causally related to the bladder repair. Under these circumstances, and as

explained in Mart v. Hill, the court of appeal, upon finding manifest error in the

jury=s failure to award damages for the loss of consortium claims, was not

constrained by Coco in its res nova award of damages. See Mart, 505 So.2d at

1128 (ACoco applies when an appellate court is asked to correct a fact finder=s abuse

of discretion in assessing the appropriate monetary award for a given injury. The

principles are not applicable when a res nova review of quantum must be made to

compensate a plaintiff for damages which the trial court did not believe were

causally related to the accident.@).

While I agree with the majority=s determination that the court of appeal erred

in assessing damages for the loss of consortium claims of Mrs. Thibodeaux=s

husband and daughter according to the principles of Coco, I respectfully disagree

with its decision to remand this case to the court of appeal for the purpose of having

that court reconsider its awards. It is a long-standing precept of this court that

A[w]here a finding of fact is interdicted because of some legal error implicit in the

fact finding process or when a mistake of law forecloses any finding of fact, and

where the record is otherwise complete, the appellate court should, if it can, render

judgment on the record.@ See Ragas v. Argonaut Southwest Ins. Co., 388 So.2d

707, 708 (La. 1980); See also, Gonzales v. Xerox Corporation, 320 So.2d 163,

165-66 (La. 1975). The majority offers no explanation for why it is appropriate to

deviate from this practice in the present case.

9
 This court has before it a complete record. That record fully supports the

jury=s determination, evidenced by its decision to award medical expenses but no

general and no permanent disability damages to Mrs. Thibodeaux, that defendant is

not responsible for all of the problems from which Mrs. Thibodeaux suffers.

Dr. Alexander, Mrs. Thibodeaux=s treating urologist, testified that when he

freed her ureters from the sutures, they were intact. He placed stents in the ureters

to shore them up, as a kind of safety net in case there was some minimal undetected

damage, and inserted a suprapubic catheter as an additional precaution. The

surgery was performed on November 20, 2003. Mrs. Thibodeaux returned to Dr.

Alexander in December 2003, and, over two visits, he successfully removed the

catheter and stents. A cystoscopy performed at the time revealed that Mrs.

Thibodeaux had a reduced bladder capacity, but the bladder and ureters were

functioning properly.

Unfortunately, Mrs. Thibodeaux developed irritative bladder symptoms

(including having to urinate every 30 to 60 minutes). In April 2004, Dr. Alexander

performed another cystoscopy in which he noted the presence of scar tissue, but

observed that the ureters were normal and unobstructed. At this time, Dr.

Alexander attempted to distend the bladder in hopes of providing relief from the

symptoms of urinary frequency and pressure. It was on this examination that Dr.

Alexander diagnosed Mrs. Thibodeaux with interstitial cystitis, a condition of the

bladder lining characterized by symptoms such as excessive urinary frequency, pain

related to bladder fullness, and painful intercourse. While he prescribed

medications to alleviate the symptoms, none proved to be effective. It was the

treating physician, Dr. Alexander=s, opinion that the interstitial cystitis is unrelated

to the bladder repair.

10
 Plaintiffs= expert witness was ob/gyn Dr. Fred Duboe. Dr. Duboe opined that

defendant=s error in blocking the ureters with sutures necessitated a second surgery,

produced some devascularized tissue which had to be extracted and resulted in scar

tissue and a reduced bladder size. While Dr. Duboe opined that Mrs. Thibodeaux=s

reduced bladder size and symptoms of urinary frequency were related to the bladder

repair, as to her interstitial cystitis, the connection Awas not as clear.@

Given the foregoing, there is ample record evidence to support the

determination that the more significant and long term problems from which Mrs.

Thibodeaux suffers are not related to the bladder repair, but to her subsequent

diagnosis of interstitial cystitis. Accordingly, any loss of consortium, service and

society experienced by Mr. Thibodeaux and daughter Gabrielle is logically and

necessarily limited to losses sustained prior to the diagnosis of that interstitial

cystitis. After reviewing the record de novo, and being constrained by the fact that

defendant did not apply for relief in this court and, thus, cannot obtain a more

favorable verdict, 7 I would simply affirm the amounts awarded by the court of

appeal for loss of consortium, as I believe those amounts more than fully compensate

Mr. Thibodeaux and Gabrielle for the limited losses they sustained.

Thus, I respectfully dissent from the majority=s ruling in this case.

Finally, in doing so, I note as an aside that, if we were not constrained in our

review by the fact that defendant did not apply for relief in this court, I would be

hard pressed to find that defendant deviated from the appropriate standard of care in

his treatment of Mrs. Thibodeaux. Certainly, the jury was not convinced of such,

7
See Granger v. Christus Health Central Louisiana, 12-1892, p. 47 (La. 6/28/13), 144 So.3d
736, 770 (AWhen a writ of certiorari or review is granted at the instance of one of the parties to a
suit, to consider a complaint of a judgment of the court of appeal, an opposing party to the suit,
who has not applied for writ of review, cannot have the judgment amended for his benefit.@)

11
as the verdict in this case well could be a classic compromise verdictBone in which

sympathy for Mrs. Thibodeaux=s plight compelled the jury to award her medical

expenses, but no general damages, precisely because the jury was not convinced that

defendant was responsible for her injuries.8 Indeed, it is unlikely the jury, having

found liability, simply overlooked the obvious lines on the verdict form relative to

general damages. Furthermore, the evidence in this case strongly supports the

conclusion that defendant was not negligent, but responded appropriately given the

difficult circumstances presented. When a party does not appeal a jury verdict or

apply for writs in this court, we are constrained from altering the jury verdict in a

manner favorable to him. 9 However, a party may argue in defense of a claimBthat

the amounts awarded by the court of appeal should not be increasedBany record facts

that support such a conclusion. Roger v. Estate of Moulton, 513 So.2d 1126, 1136

(on reh=g) (AA party who is satisfied with a judgment, and who does not file a notice

of appeal or a petition for review, is, nevertheless, a party to the appeal or review

whose arguments must be heard, and in support of the judgment in his favor he may

present any argument supported by the record, whether it was ignored, or flatly

rejected, by the court below.@).

8
Interestingly, at a hearing on the cross-motions for JNOV filed by the parties, the trial judge
acknowledged having had a discussion with one juror who had indicated the jury wanted to
exonerate defendant, but still award plaintiff=s medical expenses. However, as the trial judge
explained, there was no formal record made on this point and there is no indication how many
jurors felt that way.
9
See Granger, 12-1892 at 47, 144 So.3d at 770.

12
01/20/17

SUPREME COURT OF LOUISIANA

NO. 2016-C-0570

KIMBERLY AND TODD THIBODEAUX, INDIVIDUALLY AND ON
BEHALF OF THEIR MINOR CHILD, GABRIELLE THIBODEAUX

VERSUS

JAMES F. DONNELL, M.D.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIRST CIRCUIT, PARISH OF TERREBONE

JOHNSON, C.J., concurs in part, dissents in part, and assigns reasons.

I respectfully dissent from the majority=s finding that the court of appeal erred

in its review and award of general damages to Mrs. Thibodeaux. I find the majority

opinion creates confusion by failing to apply the clear principles set forth by this

court in Wainwright v. Fontenot, 00-0492 (La. 10/17/00), 774 So. 2d 70 and Green

v. K-Mart Corp., 03-2495 (La. 5/25/04), 874 So. 2d 838, wherein this court has

directly addressed the proper standard of review for assessment of damages in cases

such as this one.

In Wainwright, this court explained that when faced with a verdict in which a

jury determined that the defendant is both legally at fault for the plaintiff=s injuries

and liable for his medical expenses, yet has declined to award general damages, the

reviewing court Amust ask whether the jury=s determination that plaintiff is entitled

to certain medical expenses but not to general damages is so inconsistent as to

constitute an abuse of discretion. Only after the reviewing court determines that the

factfinder has abused its much discretion can that court conduct a de novo review

of the record.@ 774 So. 2d at 76. (Emphasis added). This court again applied the same

principle in Green (AWhen, as here, the jury has awarded special damages but has
declined to award general damages, the reviewing court must determine whether the

jury=s finding is so inconsistent as to constitute an abuse of discretion. If so, only

then can the reviewing court perform a de novo review of the record.@) 874 So. 2d

at 843-844. Thus, this court must determine whether the jury=s finding in this

particular case Ais so inconsistent as to constitute an abuse of discretion.@

After review of the record, I find the court of appeal correctly determined that

the jury abused its discretion in failing to award general damages while awarding a

substantial amount for past and future medical expenses. In this case, the jury

determined through its award of all of Mrs. Thibodeaux=s medical expenses that

plaintiff suffered injuries causally related to the accident which required medical

attention, and is still suffering an injury that will require medical attention in the

future. Further, the evidence establishes that the medical treatment caused Mrs.

Thibodeaux pain and suffering. I find failing to make a general damage award in

such circumstances was an abuse of discretion.

Additionally, to the extent the failure to award general damages is an abuse

of discretion, as opposed to an error of fact or law, review and correction of the

damage award is limited by the principles stated by this court in Coco v. Winston

Industries, Inc., 341 So. 2d 332, 335 (La. 1976) (i.e., the reviewing court is limited

to raising the inadequate general damage award to the lowest amount reasonably

within the jury=s discretion), rather than a de novo determination of damages as

contemplated in Mart v. Hill, 505 So. 2d 1120 (La. 1987). In this case, the court of

appeal determined the jury=s finding that Mrs. Thibodeaux was entitled to an award

of special damages, but no general damages was, under the facts, so inconsistent as

to constitute an abuse of its much discretion. Thibodeaux v. Donnell, 15-0503 (La.

App. 1 Cir. 2/24/16), 189 So. 3d 469, 475. Given that determination, the court of

2
appeal then correctly proceeded to fix an award of general damages calculated as

Athe lowest amount within the jury=s discretion and consistent with the special

damages award,@ in accordance with this court=s holding in Coco. Thibodeaux, 189

So. 3d at 478.

Therefore, consistent with Wainwright and Green, I find that in this case

where the jury awarded special damages but declined to award general damages, it

is the task of the reviewing court to determine whether the jury=s finding Ais so

inconsistent as to constitute an abuse of discretion.@ Because such a finding was

made in this case, I find the court of appeal properly assessed the award of general

damages under the principles set forth in Coco. Thus, I would affirm the court of

appeal=s decision on this issue.

Finally, relative to loss of consortium damages, I agree with the majority that

because the court of appeal found the jury manifestly erred in failing to award loss

of consortium damages, the court of appeal was not constrained by the award

parameters set forth in Coco. However, I dissent from the majority=s holding to the

extent the case is remanded to the court of appeal to reconsider its award on this

issue. Considering the record before us, I find it is sufficient for this court to render

judgment. Based on de novo review of the record relative to this issue, I would affirm

the amounts awarded by the court of appeal for loss of consortium rather than

remand this case to the court of appeal to reconsider that award.

3
 01/20/17

SUPREME COURT OF LOUISIANA

NO. 2016-C-0570

KIMBERLY AND TODD THIBODEAUX, INDIVIDUALLY AND ON
BEHALF OF THEIR MINOR CHILD, GABRIELLE THIBODEAUX

VERSUS

JAMES F. DONNELL, M.D.

ON WRIT OF CERTIORARI TO THE COURT OF APPEAL,
FIRST CIRCUIT, PARISH OF TERREBONE

GUIDRY, J., concurs in the result and assigns reasons.

I concur in the result of the majority decision. However, I write separately to

express my concern that the majority opinion creates a standard that could lend

itself to inconsistent interpretations. Although the majority demurred from

overturning Coco v. Winston Industries Inc., 341 So. 2d 332 (La. 1976), I question

the vitality of the principles set forth therein, which appear to be judicially created

and not firmly based upon statutory law or established precedent.