Magee v. Unidentified Party ( 2004 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-30152
Summary Calendar
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CATHERINE MAGEE,
Plaintiff-Appellant,
VERSUS
UNIDENTIFIED PARTY AND GREYHOUND LINES, INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
(97-CV-3334-N)
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October 6, 1999
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Catherine Magee appeals the amount of general damages awarded
to her by the district court. She asserts that the district court
abused its discretion by awarding only $5,000.00 for pain and
suffering for injuries to her neck and back, and she asks this
court to increase the award to the lowest amount within the range
of the district court’s discretion. We affirm.
I.
Magee was a passenger on a Greyhound bus in October 1996.
When the bus driver applied his brakes to avoid missing a turn,
another passenger lost his balance and fell against the plaintiff,
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
causing injuries to her head, neck, back, and right arm. Magee
initially told the driver that she was not injured, but when the
bus made its next scheduled stop, she complained of pain and the
bus driver called an ambulance. At the emergency room, Magee
underwent several tests and received pain medication before being
released.
Upon returning home to New Orleans, she received therapy and
heat treatments for neck and back pain for 2 ½ months. When her
pain returned, she received pain medication from a clinic. Her
last visit to the clinic was in October 1997. In December 1997,
Magee saw Dr. Landry, who treated her with pain medication and
ordered an MRI of her spine. Dr. Landry diagnosed her as having
cervical spondylosis and recommended future treatment. Magee has
not returned for treatment.
At trial, Magee presented no evidence to support a special
damages award. She introduced no evidence of past medical bills or
estimates of future medical bills, nor evidence of any lost wages.
II.
Under Louisiana law, plaintiff has the burden of proving the
amount of damages. Borden, Inc. v. Howard Trucking Co., Inc., 454
So.2d 1081, 1092 (La. 1983). In calculating general damages, the
trial court must evaluate each case according to its own unique
facts and circumstances. Mouton v. Southern Pacific Transp. Co.,
509 So.2d 479, 485 (La. App. 3d Cir. 1987); Rhodes v. State Dept.
of Transp. and Development, 684 So.2d 1134, 1144-45 (La. App. 1st
Cir. 1996); Wood v. Toys “R” Us, Inc., 681 So.2d 49, 51 (La. App.
2d Cir. 1996). Awards in similar cases constitute only persuasive
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authority. Mouton, 509 So.2d 479, 485.
In awarding general damages, the district court considered the
type of injury, length of treatment, and awards in similar cases.
It found that Magee suffered only soft tissue damages and was
treated with therapy and heat treatments for 2 ½ months. The
district court also questioned Magee’s credibility regarding the
extent of her pain and suffering because she was unable to remember
a series of x-rays taken at Charity Hospital after a car accident
several months before the bus accident at issue in this case.
According to Charity Hospital records admitted into evidence, the
spinal x-ray taken after that car accident found a narrowing of
disk space and degenerative changes in the same area later examined
by Dr. Landry.
III.
On appeal, we review a general damages award for clear error.
Nichols v. Petroleum Helicopters, Inc., 17 F.3d 119, 121 (5th Cir.
1994); Wheat v. United States, 860 F.2d 1256, 1259 (5th Cir. 1988).
To disturb the award, we must be convinced that an error has been
committed; mere disagreement with the district court’s analysis of
the record is insufficient. Nichols, 17 F.3d 119, 121. Rather, a
review of the entire record must leave us “with the definite and
firm conviction that a mistake has been committed.” Id. (citing
Graham v. Milky Way Barge, Inc., 824 F.2d 376, 388 (5th Cir. 1987);
United States v. Gypsum, 333 U.S. 364, 395, 68 S.Ct. 525, 542
(1948)). “[D]amage awards in analogous cases provide an objective
frame of reference, but they do not control our assessment of
individual circumstances.” Wheat, 860 F.2d 1256, 1260.
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Based on the findings of the district court and our own
careful review of the record, we find no error in the amount of
general damages awarded by the district court. The judgment of the
district court is affirmed.
AFFIRMED.
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