Opinion
CIVIL ACTION NO. 02-1450, SECTION "R" (3).
June 16, 2003
ORDER AND REASONS
Before the Court is plaintiffs' motion for judgment notwithstanding the verdict or, in the alternative, motion to alter and amend judgment. Also before the Court is defendants' motion for partial new trial and/or motion for judgment notwithstanding the verdict. For the following reasons, the Court denies both motions.
I. Background
On April 3, 2002, Tanya Calhoun, an employee of Ennis, Inc. of Colorado, rear-ended a vehicle driven by Delores Barocco. Barocco, a sales associate at Saks Fifth Avenue, returned to work briefly on the day after the accident, but has not worked since. She produced evidence at trial indicating that the accident caused cervical injuries, including collapsed discs at the C4-5 and C5-6 levels, and minimal problems at other levels, including the C6-7 level. She also produced evidence that the accident worsened a pre-existing lumbar injury, a herniated disc at the L5 level. Several doctors indicated that she requires surgery, but she cannot undergo surgery due to a blood disorder. She is on prescription medication to alleviate the pain.
Before the accident, Barocco enjoyed hiking. At Saks, her work required her to stand for long periods of time and to lift clothing weighing as much as 45 to 50 pounds. She had worked at Saks for 10 years before the accident. In 2001, the year before the accident, her total compensation was $37,108.
Barocco's children, Brandi and Hunter, were passengers in her car at the time of the accident. Brandi Barocco sustained physical injuries in the accident. She incurred medical expenses in the amount of $755. Hunter Barocco did not sustain physical injuries in the accident.
Delores, Brandi and Hunter Barocco, plaintiffs, filed suit against defendants, Ennis, Inc. of Colorado and the St. Paul Fire and Marine Insurance Company. Delores Barocco sought to recover medical expenses, loss of past wages, loss of future earnings and general damages including pain and suffering. Brandi Barocco sought to recover medical expenses, pain and suffering, and loss of consortium with her mother. Hunter Barocco sought to recover only for loss of consortium. Before trial, the parties stipulated to the amount of medical expenses incurred by Delores and Brandi Barocco.
After a two day trial, the jury found that an employee of Ennis, Inc. of Colorado was negligent. The jury further found that defendant's negligence caused injuries to Delores Barocco. The jury awarded Delores Barocco $37,108 in past loss of earnings; $350,000 in future loss of earnings; and $125,000 in general damages. The jury's finding as to causation also entitled Delores Barocco to medical expenses in the amount of the parties' stipulation. The jury found that defendant's negligence caused an injury to Brandi Barocco, entitling her to $755 in medical expenses. The jury awarded no damages to Brandi Barocco for loss of consortium or pain and suffering. Finally, the jury determined that defendant's negligence caused no injury to Hunter Barocco.
In their motion for judgment notwithstanding the verdict or, in the alternative, motion to alter and amend judgment under Federal Rule of Civil Procedure 59, plaintiffs assert (1) that Brandi Barocco is entitled to an award for pain and suffering; (2) that Brandi and Hunter Barocco are entitled to awards for loss of consortium; (3) that Delores Barocco is entitled to an award of not less than $900,000 for loss of future earnings; and (4) that Delores Barocco is entitled to an award of not less than $600,000 in general damages. In their motion for partial new trial or, in the alternative, motion for judgment notwithstanding the verdict, defendants assert that the evidence is insufficient to support the jury's award of $350,000 for future loss of earnings.
II. Legal Standards
On a motion for judgment notwithstanding the verdict, the Court must consider all of the evidence in the light most favorable to the non-moving party. Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir. 1969); see also Roberts v. United New Mexico Bank at Roswell, 14 F.3d 1076, 1078 (5th Cir. 1994). The motion should be granted only when the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict. Boeing, 411 F.2d at 374-75. It is the province of the jury, and not the Court, to weigh conflicting evidence and determine the credibility of witnesses. Id.
Rule 59 "confirms the trial court's historic power to grant a new trial based on its appraisal of the fairness of the trial and the reliability of the jury's verdict." Smith v. Transworld Drilling Company, 773 F.2d 610, 612-13 (5th Cir. 1985). The Court will grant a motion for a new trial when "`it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done.'" Sibley v. Lemaire, 184 F.3d 481, 487 (5th Cir. 1999) (quoting Del Rio Distributing, Inc. v. Adolph Coors Co., 589 F.2d 176, 179 n. 3 (5th Cir. 1979)). If a trial judge finds that the damages assessed are excessive, the defendant is entitled to a new trial. Smith, 773 F.2d at 613. If the damage award is inadequate, the plaintiff is entitled to a new trial. Jones v. Wal-Mart Stores, Inc., 870 F.2d 982, 985 (5th Cir. 1989). Further, a jury verdict that is against the great — not merely the greater — weight of the evidence warrants a new trial, even if that verdict is supported by substantial evidence. Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982). In making this determination, the Court weighs all of the evidence, and it need not view it in the light most favorable to the nonmoving party. Smith, 773 F.2d at 613. When a trial judge reviews a jury award, its decision will be upheld on appeal unless (1) there is a complete absence of evidence to support the verdict; (2) the award is so excessive that no reasonable juror, unswayed by passion or prejudice, could have awarded that amount; (3) the award is contrary to all reason; or (4) the award shocks the judicial conscience. Stokes v. Georgia-Pacific Corp., 894 F.2d 764, 769 (5th Cir. 1990).
In a diversity case, the Court applies the federal standard of review described above to assess the sufficiency of the evidence in relation to the verdict, but state law supplies the kind of evidence that must be produced to support a verdict. Tutor v. Ranger Ins. Co., 804 F.2d 1395, 1398 (5th Cir. 1986).
III. Discussion
A. Future Loss of Earnings
An award for future loss of earnings represents 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). Damages are not awarded based on what the injured party actually earned before and after the accident, but are rather based on the injured party's ability to earn money. Hobgood v. Aucoin, 574 So.2d 344, 346 (La. 1990); Folse v. Fakouri, 371 So.2d 1120 (La. 1979). One factor relevant to the calculation of future loss of earnings is whether and how much plaintiff's current condition disadvantages her in the work force. Gorton v. Quachita 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). In order to recover for loss of future earnings, the plaintiff must present "medical evidence which indicates with reasonable certainty that there exists a residual disability causally related to the accident." Aisole v. Dean, 574 So.2d 1248, 1252 (La. 1991)
Defendants assert that Barocco is not entitled to an award for loss of future earnings because (1) the evidence presented is insufficient to show that the plaintiff is unable to engage in any employment, or to show the limitation on plaintiff's ability to earn a salary in some type of occupation; and (2) no economic expert provided testimony that could assist the jury in reducing the award to present value. In the absence of this evidence, defendants assert, any award for loss of future earnings is speculative. Louisiana courts, however, have noted that the calculation of loss of future earning capacity is "inherently speculative and insusceptible of calculation with mathematical certainty." Kessler, 643 So.2d at 350. Further, defendants' argument as to the speculative nature of the jury award is foreclosed by the Louisiana Supreme Court's decision in Hobgood.
In Hobgood, the defendant's negligence caused plaintiff cervical and lumbar injuries. The plaintiff, who was 36 years old at the time of the accident, was given a 10% disability rating, increasing to 25% if he decided to undergo surgery. Hobgood, 574 So.2d at 345. He faced "minor restrictions" on his ability to work. No expert or other witness said that these restrictions prevented plaintiff from pursuing his occupation. Id. at 348. An economic expert testified, but the court of appeal determined that the expert testimony was entitled to no weight. Id. Given this record, the Louisiana Supreme Court held that "the loss of earning capacity, although proved in a general sense, is highly speculative as to value or amount." Id. The Hobgood court noted nonetheless that "certainly plaintiff's inability to pursue his business as vigorously and energetically as he did prior to injury shows that his ability to earn has been impaired." Id. It held that the court of appeal did not abuse its discretion in fixing the amount of damages for loss of earning capacity at $50,000.
The clear implication of Hobgood is that an award for loss of future earnings can stand when the record, though sparse, permits the factfinder to conclude that at least "minor restrictions" exist on the plaintiff's ability to work, and that the plaintiff "could earn more money if he did not have his present physical limitations." Id. at 348. A vocational rehabilitation expert is not an absolute prerequisite to recovery. Here, the record is replete with evidence permitting the jury to conclude that Barocco could earn more money but for the physical limitations caused by defendant's negligence. First, when she worked as a sales associate at Saks Fifth Avenue, Barocco was required to lift clothing weighing 45 to 50 pounds. (Test. of Delores Barocco.) Even defendants' own expert, Dr. Gordon Nutik, testified that carrying 45-50 pound loads "would not be good for a person who has a herniated disc." (Test. of Gordon Nutik, at 30-31.)
Second, defendants' own expert testified that Barocco is a surgical candidate. ( Id. at 43-44; see also Defs.' Tr. Ex. 3). Barocco cannot undergo surgery due to a blood disorder. Barocco must therefore rely on prescription medication to alleviate her pain. Dr. Nutik himself testified that he prescribes such pain medication only "for limited times . . . because of the potential for side effects and addiction." (Test. of Nutik, at 51.) Barocco must choose between, on the one hand, pain, and on the other hand, side effects and addiction. Either will impact her future earning capacity.
Third, Barocco testified to the severity of her condition. She does not sleep well. She experiences spasms in her lumbar spine from time to time, some of which are so serious that she requires assistance. She experiences some memory loss. She also experiences numbness in her arms that, at times, causes her to drop things. She further suffers from pain in her jaw that is being treated with a splint. Before the accident, Barocco worked at Saks for ten years. She testified that due to her physical condition, she is no longer able to perform work as a sales associate for Saks. (Test. of Barocco.)
Fourth, multiple doctors indicated that Barocco's physical condition since the accident has had an impact on her ability to work. On April 19, 2002, Dr. Stewart Altman gave Ms. Barocco a note to remain off work for one week; on May 21, a note to remain off work for three weeks; and, on June 10, another note to remain off work for three weeks. (Defs.' Tr. Ex. 3.) On July 30, 2002, Dr. Bruce Razza indicated that Ms. Barocco is temporarily disabled from gainful employment. (Defs.' Tr. Ex. 4.) On August 20, 2002, Dr. Stefan Pribil indicated that she "remains temporarily disabled." ( Id.) On October 7, 2002, Dr. Kenneth Vogel indicated that she "is disabled for her normal duties." (Defs.' Tr. Ex. 3.)
Defendants countered with evidence that Barocco remains able to drive a car from time to time, and that she climbs stairs to her second-story apartment. ( Id.) Defendants further note that no doctor assigned Barocco a percentage disability. In light of Hobgood, however, the Court finds that plaintiff presented the jury with sufficient evidence to support the jury's award for loss of future earnings. It is the province of the jury, and not the judge, to weigh this testimony.
The Court further finds, also in light of Hobgood, that the jury was presented with sufficient evidence to reduce an award for loss of future earnings to present value. Plaintiff presented the jury with evidence that the plaintiff's age at trial was 39 years old, (Test. of Barocco); that her income in 2001 was $37,108, (Pls. Tr. Ex. 10); and that Saks has retained sales associates until the age of 70, (Test. of Barocco). The jury was also provided with reliable data on life expectancy, the Consumer Price Index, and treasury bill rates. (Pls. Tr. Ex. 8.) The Court instructed the jury that it was necessary to reduce an award for future damages to present value. This Court has already rejected defendants' argument that an economic expert is an absolute prerequisite for a recovery for loss of future damages. See Barocco v. Ennis, Inc. of Colorado, 2003 WL 1342973 (E.D.La. 2003); see also Bonura v. Sea Land Service, Inc., 505 F.2d 665, 669 (5th Cir. 1974) (aligning the Fifth Circuit with the majority of circuits that have "presumed that jurors are capable enough and aware enough of modern economics to be able to reduce gross loss to present value intelligently once they have been instructed to perform this function"). Here, the jury was presented with sufficient evidence to reach its conclusion. The Court therefore denies defendants' motion for a new trial or for judgment notwithstanding the verdict.
Barocco asserts that because she was earning $37,000 before the accident and could have worked for 31 more years as a sales associate for Saks, she would have received $1,147,000 over the course of her professional life. Further, even though courts routinely apply a below-market discount rate of 2%, ( see, e.g., In the Matter of Gulf Pride Marine Service, Inc., 1997 WL 118394 (E.D.La. 1997)), plaintiff asserts that the discount factor is completely offset by annual raises and inflation. Plaintiff asserts that the evidence warrants an award for loss of future earnings of not less than $900,000.
The Court rejects plaintiff's argument because it is based on the erroneous assumption that the evidence permits no finding other than that plaintiff will not be able to work for the rest of her life. Barocco can still climb stairs and drive a car from time to time. No doctor assigned her a percentage disability. Based on the evidence presented, the jury could have reasonably concluded that plaintiff will be able to work in some capacity in future years. The Court finds that the jury award of $350,000 for loss of future earnings is neither excessive nor inadequate. It is not against the great weight of the evidence. The Court will therefore not second-guess the jury's decision to grant $350,000 in loss of future earning capacity.
B. Brandi Barocco's Award For Pain and Suffering
The jury found that defendants' negligence caused injuries to Brandi Barocco. This entitled her to $755 in medical expenses, which is the amount that the parties stipulated to before trial. The jury awarded no damages to Brandi Barocco for pain and suffering. Plaintiff asserts that in light of the jury's finding that Brandi Barocco sustained an injury, an award of zero dollars for pain and suffering "shocks the judicial conscience."
In Wainwright v. Fontenot, 774 So.2d 70 (La. 2000), the Louisiana Supreme Court held that a factfinder does not necessarily err as a matter of law when it declines to award to the plaintiff general damages after finding the defendant at fault for the plaintiff's injuries and awarding special damages for the plaintiff's medical expenses. In that case, the jury awarded the plaintiff $1,500 in medical expenses but did not award general damages. The Wainwright court noted that the plaintiff bears the burden of proving the damages suffered. Wainwright, 774 So.2d at 77. The Wainwright court stated that "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." Id. at 76.
Here, the jury determined that defendant caused an injury to Brandi Barocco. At trial, plaintiffs presented virtually no evidence as to the extent of the injury. Brandi Barocco did not testify to the extent of her pain and suffering. Her mother, Delores, did not elaborate on her daughter's injuries. In their post-trial motion, plaintiffs do not point to any evidence indicating the extent of plaintiff's physical and mental damages, other than the stipulation to $755 in medical expenses. Based on the paucity of the evidence presented, the jury's determination that Brandi Barocco failed to meet her burden of proving general damages was well within its discretion. In light of Wainwright and the nature of the evidence produced by plaintiffs in this case, the jury's damage award does not shock the judicial conscience and is not contrary to all reason.
C. Loss of Consortium
The jury awarded no damages to either Brandi or Hunter Barocco for loss of consortium with their mother. Plaintiffs suggest that in light of the severity of Delores Barocco's injuries, Brandi Barocco is entitled to an award for loss of consortium in the amount of $15,000, and Hunter Barocco is entitled to an award of $30,000. Plaintiffs cite the uncontradicted testimony of Delores Barocco that Hunter, age 9, breaks down crying when he sees his mother in pain and that he must now perform extra duties around the house.
A child's claim for loss of consortium with a parent encompasses loss of love and affection, loss of society and companionship, loss of performance of material services, loss of financial support, and loss of aid and assistance. Gunn v. Robertson, 801 So.2d 555, 565 (La.Ct.App. 2001); Darbone v. State of Louisiana, 815 So.2d 943, 954 (La.Ct.App. 2002). To prevail on a claim for loss of consortium, the plaintiff must prove (1) the liability of the defendant; (2) his or her parent's damages; and (3) his or her consequent loss of consortium damages. Gunn, 801 So.2d at 565. In Gunn, the jury awarded damages to an injured plaintiff but did not award damages for loss of consortium to the injured plaintiff's wife and children. Like Delores Barocco, the plaintiff in Gunn sustained back injuries in a car accident. Id. at 560-61. At the time of the trial, the plaintiff in Gunn "was in pain and he could not play with his children." Id. When called upon to review the jury's failure to award loss of consortium damages, the Gunn court stressed that whether a party is entitled to damages for loss of consortium is a question of fact for the jury. Id. at 566.
At trial, plaintiffs beared the burden of establishing the existence of damages for loss of consortium. See Wainwright, 774 So.2d at 77. Although plaintiffs presented evidence that may have permitted the jury to conclude that the injuries sustained by Delores Barocco have led to consequent loss of consortium damages for her children, plaintiff's showing was far from overwhelming. Indeed, it was practically non-existent. Virtually the only evidence that plaintiffs presented to the jury in this regard was Delores's testimony regarding Hunter. Awarding no loss of consortium damages for this testimony does not shock the judicial conscience, and it is not contrary to all reason. The Court finds that the jury could have reasonably decided that the plaintiff failed to prove by a preponderance of the evidence that an award for loss of consortium is justified, and the Court will not substitute its judgment for that of the jury.
D. Delores Barocco's General Damages Award
The jury awarded Delores Barocco $125,000 in general damages, which includes pain and suffering, mental anguish, disability, and loss of enjoyment of life. Plaintiffs assert that because of defendants' negligence, Barocco is resigned to a life of either extreme pain or harmful pain medication. Plaintiffs assert that the evidence supports a general damages award of not less than $600,000.
The jury's award in this case is in line with that awarded in other cases involving similar injuries. In Boutte v. Winn-Dixie Louisiana, Inc., 674 So.2d 299 (La.Ct.App. 1996), the jury awarded $105,000 in past and future pain and suffering to a plaintiff who was assigned a 10% disability rating and who would be subject to chronic pain for the rest of her life. In Keller v. City of Placquemine, 700 So.2d 1285 (La.Ct.App. 1997), the plaintiff suffered from a herniated disc. Like Barocco, the plaintiff in Keller was a surgical candidate but could not undergo surgery because of other medical conditions. The evidence indicated that Keller "would continue to suffer persistent pain and intermittent problems with his back." Keller, 700 So.2d at 1293. The trial court awarded Keller $125,000 in general damages. See also Roberts, 776 So.2d at 525 (awarding general damages of $65,000 for small focal herniation at C4-5 and broad-based herniated lumbar disc at L4-5 that required surgery); Simoneaux v. Humedicenters, 642 So.2d 318, 322 (La.Ct.App. 1994) (affirming general damages award of $150,000 for C5-6 and L4-5 injuries requiring surgery); Hernandez v. Continental Cas. Ins. Co., 615 So.2d 484, 490 (La.Ct.App. 1993) (awarding $200,000 in general damages for an L5-S1 herniated disc).
In support of her contention that she is entitled to general damages of not less than $600,000, Barocco cites Babin v. Burnside Terminal, 577 So.2d 90 (La.Ct.App. 1990). Virtually the only similarity between Babin and this case is that both involved a car accident. In Babin, however, the plaintiff's car flipped over and the plaintiff suffered a broken neck. She was thereafter in traction for five days, and she then wore a halo brace for more than a month. She could barely move around in the halo brace, and "she had been advised by her doctor that a fall would likely kill her." Babin, 577 So.2d at 101. Over the course of the next few years, the plaintiff in Babin underwent two cervical fusions. In light of the severity of the injuries, the Babin court found that the jury award of $150,000 in general damages "shocks our conscience," and the court increased the award to $350,000.
Here, the Court does not hesitate to find that Barocco's injuries, though serious, do not demand a general damages award as high as that in Babin. The jury's award of $125,000 in general damages does not shock the Court's conscience. The award is not so inadequate so as to warrant a new trial. To the contrary, the award appears to be on par with that awarded in other cases involving similar injuries. The Court therefore rejects plaintiffs' assertion that the evidence supports a general damages of no less than $600,000.
IV. Conclusion
For the foregoing reasons, the Court denies plaintiffs' motion for judgment notwithstanding the verdict or, alternatively, to alter and amend judgment. The Court also denies defendants' motion for partial new trial or, alternatively, for judgment notwithstanding the verdict.