Opinion
CIVIL ACTION NO. 02-1450 SECTION "R" (3)
March 18, 2003
ORDER AND REASONS
Before the Court are plaintiffs' and defendants' motions in limine. The Court reserves ruling on the parties' objections to trial exhibits until such time as they are offered at trial. The parties are directed to state any objection to the exhibits at that time.
I. Defs.' Motion in Limine to Exclude Lay Opinion Testimony Regarding Loss of Future Earning Capacity
An award for future loss of wages is predicated on the difference between the plaintiff's earning capacity before and after a disabling injury. Kessler v. Southmark Corporation, 643 So.2d 345, 350 (La.Ct.App. 1994). The award is based on earning capacity, not on what the plaintiff actually earned before and after the accident. Hobgood v. Aucoin, 574 So.2d 344, 346 (La. 1990) (affirming award of $50,000 for loss of earning capacity, despite lack of any vocational expert testimony or credible economic expert testimony, where plaintiff suffered a back injury that impaired his ability to vigorously pursue his career in oil field sales and service). Thus, damages "should be estimated on the injured person's ability to earn money." Id. Further, such damages "may be assessed for the deprivation of what the injured plaintiff could have earned despite the fact that [slhe may never have seen fit to take advantage of that capacity." Id. In deciding whether to grant an award for loss of future earning capacity, one factor is whether and how much plaintiff's current condition disadvantages her in the work force. Gorton v. Ouachita Parish Police Jury, 814 So.2d 95, 112 (La.Ct.App. 2002). Additional factors include (1) the plaintiff's physical condition before and after the injury; (2) her past work record and the consistency thereof; (3) the amount the plaintiff probably would have earned absent the injury complained of; and (4) the probability that she would have continued to earn wages over the balance of her working life. Kessler, 643 So.2d at 350; see also Roberts v. State, 776 So.2d 519, 525 (La.Ct.App. 2000). The calculation of loss of future earning capacity is "inherently speculative and insusceptible of calculation with mathematical certainty." Kessler, 643 So.2d at 350. To obtain an award for future loss of wages or loss of earning capacity, a plaintiff must present medical evidence that indicates with reasonable certainty that there exists a residual disability causally related to the accident. Aisole v. Dean, 574 So.2d 1248 (La. 1991).
Defendants move to exclude lay testimony as to Delores Barocco's loss of future earning capacity based on plaintiffs' failure (1) to identify a vocational expert to testify as to Delores Barocco' s post-accident earning capacity; and (2) to identify an economic expert to assist the jury in calculating the present value of any future wage loss. Defendants rely on Jones v. Trailor, 636 So.2d 1112, 1122 (La.Ct.App. 1994), wherein the Louisiana Fourth Circuit Court of Appeal intimated that the testimony of a vocational expert is necessary to establish the employment options that remain open to an injured plaintiff, and that the testimony of an economic expert is required to assist the jury in estimating the proper recovery. In response to defendants' motion, plaintiffs do not set forth with any precision the evidence that will be used to support Delores Barocco's claim for loss of future earning capacity. Rather, plaintiffs contend that vocational and economic experts are not required. See Hobgood, 574 So.2d at 346; Gorton, 814 So.2d at 113 (the Louisiana Second Circuit Court of Appeal finding that expert testimony is not required to establish loss of future earning capacity); Maddox v. City of Oakdale, 746 So.2d 764, 770 (La.Ct.App. 1999) (the Third Circuit finding that a vocational expert is not required to establish a damage award for loss of earning capacity). The Court does not reach the issue of whether state law controls the type of evidence that is admissible to prove loss of earning capacity in a diversity case. For the purposes of this motion, the Court will assume that state case law has some relevance here.
From the pre-trial order, the Court learns that plaintiffs intend to call doctors who will testify as to the treatment diagnosis and/or prognosis of Delores Barocco. Plaintiffs also seek to introduce (1) Delores Barocco's testimony as to her injury and her employment history; (2) U.S. Department of Labor statistics reports on the consumer price index; (3) U.S. Department of Commerce statistics on life expectancy; and (4) tax records detailing the compensation that Delores Barocco earned while employed by Saks Fifth Avenue. Although the Court recognizes that an inquiry into loss of future earning capacity involves a determination as to the nature of employment options that remain available to plaintiff, the Court does not find that a vocational expert is an absolute prerequisite to prove a loss of future earning capacity. Depending on the quality of the evidence given by the plaintiff and her physician concerning plaintiff's injury and degree of impairment, prior work history, current work restrictions and post-injury employment efforts, plaintiff could create a jury issue on loss of earning capacity without a vocational rehab expert. Notably, in Trailor, the plaintiff's physician found only a 25% disability and no impediment to the plaintiff's ability to sit. The court determined that the doctors' testimony was "insufficient to show the limitations on the plaintiff's ability to earn a salary in some type of occupation." Trailor, 636 So.2d at 1122. As to the requirement of an economic expert, the Court notes that fact-finders are often called upon to discount loss-of-future-earnings awards, see Rhodes v. Guiberson Oil Tools, 82 F.3d 615, 622 (5th Cir. 1996), and that jury instructions are available to assist in making such a determination. Accordingly, the Court denies defendants' motion in limine. Defendants are, of course, free to raise the issue of whether plaintiffs have established a sufficient quantum of proof by appropriate motion at the appropriate time.
Last, the Court finds defendants' reliance on Gilmore v. WWL-TV, Inc., 2002 WL 31819135 (E.D.La. 2002) unavailing. The Gilmore court granted the defendant's motion in limine to exclude lay testimony of loss of future earning capacity. In that case, however, the plaintiff sought to recover future wages based on unfounded speculation that she could have performed as a professional dancer in New York until age 70. Before the accident, the plaintiff had never danced professionally in New York; it was only a "dream." Id. at *3. Given that evidence will establish that Delores Barocco worked at Saks Fifth Avenue for 10 years before her accident, as well as Barocco' s wages at Saks, Delores Barocco's loss of future earning capacity is far less speculative.
II. Pls.' Motion in Limine
First, plaintiffs move to prohibit defendants from alluding to any relationship between the amount of property damage and the force of the collision. Plaintiffs further assert that the Court should not permit defendants to contend that the amount of the property damage is related to the extent of plaintiffs' injuries. The Court does not find, as plaintiffs assert, that a Daubert hearing is necessary to substantiate these relationships. The Court finds these inquiries to be relevant. FED. R. EVID. 401; see Simon v. U.S., 51 F. Supp.2d 739, 747 (W.D.La. 1999). This line of argument is not more prejudicial than it is probative. FED. R. EVID. 403. Accordingly, the Court DENIES plaintiffs' motion as to this issue.
Second, plaintiffs seek to exclude mention of collateral source benefits. This is a non-issue, as defendants assert that they do not intend to discuss the collateral source benefits of Delores Barocco. The Court DISMISSES plaintiffs' motion as to this issue as moot.
Third, plaintiffs seek to prohibit defendants from alluding to or presenting any defense based on East Jefferson Hospital records. Plaintiffs contend that these voluminous records are both irrelevant and more prejudicial than probative. Defendants concede that "some of the records pertain to matters not germane to this litigation," but assert that plaintiffs' medical history, as a whole, needs to be evaluated by the jury. (Defs.' Opp. to Pls.' Mot. in Limine, at 3.) The Court finds that plaintiff's medical condition is relevant, and that the records are not more prejudicial than probative. Accordingly, the Court DENIES plaintiffs' motion as to this issue.
Fourth, plaintiffs assert that New Orleans Orthopedic records are not the best evidence since the defendants have indicated that Dr. Rauchwerk will testify concerning his treatment of plaintiff. Plaintiffs concede that Dr. Rauchwerk can use these records to refresh his memory. Defendants contend that the records are germane to the instant litigation because they identify (1) plaintiff's previous lumbar injury, (2) the recommendation for surgery, and (3) plaintiff's failure to act upon the instructions of her treating physician.
Federal Rule of Evidence 1002 provides:
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.
FED. R. EVID. 1002. The Court finds that the best evidence rule does not operate to bar introduction of New Orleans Orthopedic records because plaintiffs do not challenge their originality. Nothing in the rule requires live testimony instead of an original writing. See Enrique Martinez v. Aetna Insurance Company, et al., 1999 U.S. Dist. LEXIS 3862, *8 (E.D.La. 1999). The Court further finds that the records are relevant to the issue of causation. FED. R. EVID. 401. The Court DENIES plaintiffs' motion as to these documents.
Fifth, and finally, plaintiffs assert that the Court should prohibit defendants from arguing that plaintiffs' general damage awards, including pain and suffering, loss of enjoyment of life, permanent disability, past medical expenses and past lost income, should be subject to a discount. Defendants concede that these awards are not subject to discounts. Defendants point out, correctly, that an award for loss of future earning capacity is subject to a discount. There being no dispute that a discount does not apply to awards for pain and suffering, loss of enjoyment of life, permanent disability, past medical expenses and past lost income, the Court DISMISSES plaintiffs' motion in this respect as moot.
III. Conclusion
For the foregoing reasons, the Court denies defendants' motion in limine. The Court rules on plaintiffs' motion in limine as set forth in this Order.