Opinion
Civil Action No. 04-1230, Section "C" (5).
October 12, 2004
ORDER AND REASONS
This matter comes before the Court on Plaintiff John Fradella's Motion to Remand his tort action against Defendant Wal-Mart Stores, Inc. ("Wal-Mart") to the 34th Judicial District of the Parish of St. Bernard, Louisiana. Having considered the record, the memoranda of counsel, and the law, the Court finds the Defendant establishes by a preponderance of the evidence that the Plaintiff's damages will likely exceed $75,000 such that the Court has subject matter jurisdiction under 28 U.S.C. § 1332. The Court therefore DENIES Plaintiff's Motion to Remand
I. Background
This case involves a slip and fall resulting in injury to the Plaintiff's neck and back. It previously bore the case number 03-cv-1987 before the Court remanded to state court and closed the case on August 22, 2003. (03-cv-1987 Rec. Doc. 10). At that time, a review of the Plaintiff's medical records indicated that he suffered a soft tissue injury, most likely muscular damage in the cervical, thoracic and lumbar regions. The Court ordered the remand because Defendant failed to establish by a preponderance of the evidence that the minimum jurisdictional amount had been met. Id. In particular, the Court discussed three grounds for its ruling: 1) the Defendant lacked evidence to support the likelihood of surgical treatment of the lumbar region; 2) the purported settlement offer of $150,000 provided little probative value; and 3) the Defendant cited no legal authority for a particular quantum associated with similar soft tissue or muscular injuries. Id.
On April 24, 2004, Wal-Mart filed a Notice of Removal. During discovery in the state court action, Defendant asserts that several facts came to light indicating that the injuries Mr. Fradella sustained would likely result in damages that exceed the jurisdictional amount of $75,000. Because the Defendant re-filed the case, formerly numbered 03-cv-1987, as a Notice for Removal, now numbered 04-cv-1230, the case was transferred to this Court on September 13, 2004. (Rec. Doc. 15.)
Plaintiff rests on the Order to Remand and denies that Defendant has new evidence that Mr. Fradella's injuries could amount to a damage award in excess of the jurisdictional amount.
II. Law and Analysis
When the parties are diverse, "[t]he district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000." 28 U.S.C. § 1332(a)(1). Courts have established a clear analytical framework for resolving disputes concerning the amount in controversy for actions removed from Louisiana state courts pursuant to § 1332(a)(1). Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999). Because plaintiffs in Louisiana state courts may not, by law, specify the numerical value of claimed damages, 3 LA. CODE CIV. P. art. 893 n1 (West Supp. 2004), the removing defendant must prove by a preponderance of the evidence that the amount in controversy exceeds $75,000. Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 882 (5th Cir. 2000) (internal citations omitted). The defendant meets this burden by demonstrating that the claims are likely above $75,000 in sum or value, or by setting forth the facts in controversy that support a finding of the requisite amount. Id. The jurisdictional facts that support removal must be judged at the time of the removal. Allen v. RH Oil Gas Co., 63 F.3d 1326, 1335 (5th Cir.), reh'g denied, 70 F.3d 26 (5th Cir. 1995)); Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th Cir. 1999).
The Court finds that Wal-Mart has demonstrated by a preponderance of the evidence that a likely damage award for the plaintiff will exceed $75,000. Although Plaintiff argues that the circumstances have not changed since the prior Order to Remand was issued, Defendant has produced convincing evidence to the contrary.
Wal-Mart points to several facts that came to light during discovery: First, Plaintiff's answers to Defendant's interrogatories indicate that the accident aggravated pre-existing conditions and that Mr. Fradella's pain has been worsening to the point of being "unbearable." (Def. Opp. Ex. A, Inter. No. 6 and 9). Second, while the Plaintiff has not calculated damages, Mr. Fradella has been treated, and continues to be treated, by at least five physicians. ( Id. No. 8). Third, in a Chart Note from one of Plaintiff's treating physicians, Dr. John D. Olson, dated December 1, 2004, Dr. Olson states that the plaintiff is considering surgery, suggesting that Plaintiff had not done so only because his insurance policy would require surgery at a hospital that Plaintiff did not prefer (Charity Hospital). (Def. Opp. Ex. B.). In a January 12 Chart Note, Dr. Olson makes a similar surmise and goes on to state: "I think definitive treatment here will be surgical." ( Id.)
In response to these supported assertions, Mr. Fradella claims that Defendant was aware that lumbar surgery might be necessary. The plaintiff also cites two cases supporting a damage award for his type of injury that is lower than the jurisdictional amount. (Pl. Mtn. at 1-2.)
Contrary to the plaintiff's position, the defendant has produced evidence that circumstances have changed since the August 22, 2003 Order to Remand Most significantly, there is a subjective indication in the plaintiff's documented assertions to his treating physician that he intends to opt for surgery when it can be performed at a facility of his liking. There is further objective indication of likely surgery in the prognosis of Dr. Olson's January 12 Chart Note. Finally, it seems reasonable that the Plaintiff would seek surgical treatment because, by his own admissions, the pain is becoming "unbearable." It may be true that Mr. Fradella has not definitively decided whether to have surgery. (Pl. Rep. at 3.) However, the Court must look at all the evidence and decide only whether the Defendant has adduced sufficient evidence to show that surgery is more likely than not. Accordingly, the Court finds that the Defendant establishes by a preponderance of the evidence that surgical treatment will be necessary.
In support of its argument, Wal-Mart cites case authority indicating that spinal surgery roughly similar to that anticipated in Mr. Fradella's case would result in a damage award in excess of $75,000. The Plaintiff relies on cases that indicate the award will be less than $75,000. Plaintiff's cases are distinguishable from the Defendant's cases in one telling respect: In Calcagno and Lapeyrouse, the plaintiffs did not undergo surgical treatment whereas in Harvey and Jones, the damage awards presumably were calculated, to some extent, to reflect the surgical operations. While it is impossible for the Court to predict the ultimate award in this action based on the cases cited by either party, the Court finds that the case authority cited by the Defendant suggests a likelihood that, with surgical treatment, Mr. Fradella's damage award is likely to exceed $75,000.
Defendant relies on Harvey v. Cole, 808 So.2d 771 (La.App. 4 Cir. 2002) (awarding $300,000 in general damages and $72,756 in special damages for past and future medical expenses where plaintiff underwent anterior cervical fusion surgery to correct a double herniated disc at spinal level C6-C7), and Jones v. Hyatt Corp. Delaware, 681 So.2d 381 (La.App. 4 Cir. 1995) (awarding $200,000 in general damages and $28,734 in special damages for past and future medical expenses where plaintiff underwent anterior cervical fusion surgery to correct neck injury).
Plaintiff relies on Calcagno v. Gonzales, 802 So.2d 643 (La.App. 5 Cir. 1999) (awarding two plaintiffs, neither of whom underwent surgery, total damage awards of approximately $66,000 and $43,000 respectively for, inter alia, injuries to the neck and back sustained in a car accident), and Lapeyrouse v. Wal-Mart Stores, Inc., 725 So. 2d 61 (La.App. 5 Cir. 1998) (affirming award of approximately $47,000 to plaintiff who suffered aggravation of a prior cervical disk injury, without surgical treatment, as a result of a being struck in the face by falling cans of Gatorade).
The Court therefore finds that Wal-Mart establishes by a preponderance of the evidence that Mr. Fradella's injury will require surgery. Due to surgical treatment, in addition to the previous medical costs and pain and suffering, Plaintiff's claim for damages will likely exceed $75,000. Thus the Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332. Remand is improper.
Accordingly, IT IS ORDERED that the Plaintiff's Motion to Remand is DENIED.