Court: Louisiana Court of Appeal; October 23, 2013; Louisiana; State Appellate Court
A personal injury case arises from an automobile collision between plaintiff Kimberly Collins and defendant Trooper Jarrett Dobson, employed by the Louisiana State Police. The jury found in favor of Collins, leading to her motion for a Judgment Notwithstanding the Verdict (JNOV), which the trial court granted, increasing certain damages. The defendants appealed, but the decision was affirmed.
The facts reveal that on May 4, 2004, Collins was struck by Trooper Dobson, who failed to stop at a stop sign while Collins was on the favored road. Initially, no injuries were reported at the scene, but Collins sought medical attention later that day for back, neck, and shoulder pain. Dr. Percival Kane treated her conservatively, referring her to physical therapy for cervical and lumbar strain. Despite a negative cervical MRI, her condition worsened, leading to a referral to orthopedist Dr. Lynn Foret, who diagnosed an annular tear in her lumbar disc.
After a brief period of therapy where she reported being pain-free, Collins experienced a relapse of pain, particularly after physical activities. Dr. Foret noted that her condition resulted in an ongoing cycle of improvement and worsening pain, particularly aggravated by lifting and carrying her baby, born on March 18, 2005. Throughout this period, she continued conservative treatment and physical therapy.
Dr. Foret referred Ms. Collins to pain management specialist Dr. Frank Lopez on October 10, 2007, after she showed no lasting improvement. Dr. Lopez noted decreased sensation in her right hand and leg, weakness in her back, and assessed her pain level at seven out of ten, alongside her depression. His treatment focused on pain management through medication. As Ms. Collins' condition deteriorated, Dr. Foret, who last treated her on March 5, 2008, referred her to neurosurgeon Dr. Gregory Rubino. Initially, Dr. Foret believed surgery was unnecessary, but later acknowledged her ongoing back issues due to an annular tear at L4-5. Dr. James Domingue, a neurologist, conducted an independent examination in 2008 and recommended a conservative approach, not advising surgery at that time.
Dr. Rubino evaluated Ms. Collins in September 2010, confirming a lumbar disc issue at L4-5 via discogram, leading to a lumbar disc decompression and fusion on November 23, 2010. Despite the surgery, Ms. Collins reported persistent pain and continued treatment with Dr. Lopez, who remains her pain management physician. She also experiences neck and shoulder pain, with future cervical surgery being a potential consideration.
From July 2005 until her surgery in 2010, Ms. Collins did not seek employment. While unable to perform heavy labor, her physicians suggested she could handle some sedentary or light-duty work. Her pre-accident work history includes various sedentary roles in shoe stores, as a telephone operator, bank teller, and in administrative positions. At trial, several healthcare providers testified about her injuries from the accident, with Dr. Kane confirming no prior back issues were reported before the incident. The State's expert, Dr. Domingue, found no neurological injuries but deferred to the opinions of Ms. Collins' treating orthopedist and surgeon regarding her orthopedic and neurosurgical conditions.
Vocational rehabilitation experts and economists were presented by both parties. The State's economist, Dr. Michael Kurth, estimated future lost wages for Ms. Collins at $709,597.00, based on an annual earning capacity of $20,500.00, derived from her highest earnings in 2003. Conversely, Ms. Collins’ economist, Dr. Charles Bettinger, calculated her loss of future earning capacity at $1,200,000.00, using an assumed annual salary of $40,000.00 from her last job as a store manager.
The jury awarded damages totaling $3,463,873.71, which included amounts for past and future physical and mental pain, medical expenses, and lost wages. Following a Motion for Judgment Notwithstanding the Verdict (JNOV) filed by Ms. Collins' attorney, the trial court increased several awards, including future physical pain and suffering to $100,000.00 and future loss of wages to $750,000.00, while maintaining other awards as determined by the jury. The final judgment reflecting these changes was rendered on December 18, 2012, prompting a timely appeal by the Defendants.
The Defendants raised two assignments of error: challenging the trial court's decision to grant the JNOV and the exclusion of evidence related to the force of impact, vehicle photographs, and social media posts. In addressing the first assignment, the court referenced Louisiana Supreme Court precedent regarding the standard for granting a JNOV, emphasizing that it is appropriate only when the evidence overwhelmingly supports one party, leaving no room for reasonable disagreement among jurors. The appellate court's review of the JNOV follows the same criteria applied by the trial court.
The appellate court's task is to assess whether the facts and inferences strongly favor the moving party, to the extent that no reasonable person could reach a different verdict. If reasonable persons could disagree, the district judge's grant of a motion for judgment notwithstanding the verdict (JNOV) is deemed erroneous, and the jury's verdict should be reinstated. The court has established that a JNOV should be denied if evidence exists that could lead reasonable individuals to different conclusions. In reviewing these motions, all reasonable factual questions must favor the non-moving party, reflecting the principle that the jury serves as the trier of fact.
In the present case, the trial court granted Ms. Collins’ JNOV, increasing her awards for general damages and future lost wages, citing the jury's previous low awards as inconsistent with the substantial medical expenses and lost wages already recognized. The jury had acknowledged Ms. Collins' future suffering, which the trial court deemed legally erroneous based on the inconsistency of the jury's findings. The defendants argued that the situation was akin to Wainwright v. Fontenot, where a jury's failure to award general damages was upheld. However, the court distinguished this case, emphasizing that the jury clearly recognized Ms. Collins' compensable pain and suffering and acknowledged future suffering through its awarded damages. While other cases had upheld seemingly inconsistent verdicts, they were found to differ significantly from the current case, which involved clear evidence of Ms. Collins' ongoing suffering related to the accident.
The jury awarded limited damages, reflecting only those caused by the relevant injury. This case contrasts with VaSalle, where consistent jury awards justified the trial court's denial of a JNOV. Here, the jury's inconsistent awards to Ms. Collins lack reasonable support from the evidence. The trial court's finding that no reasonable person could reach such inconsistent judgments is upheld, affirming the grant of Ms. Collins' JNOV motion.
In their second assignment of error, defendants claimed the trial court erred in excluding evidence concerning the force of impact, vehicle photographs, and MySpace posts. This claim is rejected, as the court previously denied a supervisory writ on the same issues, applying the law of the case doctrine. The defendants failed to demonstrate palpable error or manifest injustice. Testimony indicated the low impact nature of the accident, rendering the excluded evidence cumulative and its exclusion harmless. The MySpace evidence, which was already addressed during cross-examination, was similarly deemed cumulative. The writing judge expressed skepticism about the probative value of social media evidence, suggesting it often does not reflect reality.
Trooper Dobson and the Louisiana State Police contest two errors by the trial court: the granting of Ms. Kimberly Collins' motion for Judgment Notwithstanding the Verdict (JNOV) and the exclusion of certain photographs related to the accident and Ms. Collins' MySpace comments. The appellate court affirms the trial court's decision on the JNOV, concluding that it found no error. Costs are assigned to Trooper Dobson and the Louisiana State Police.
In dissent, Judge Conery argues for the reversal of the JNOV, advocating for the reinstatement of the jury's original verdict, citing the standard from Joseph v. Broussard Rice Mill, which emphasizes that JNOV should be denied if reasonable and fair-minded individuals could reach different conclusions based on the evidence. The dissent highlights the jury's low awards for Ms. Collins' future damages, suggesting they reflect credibility issues regarding her testimony. Expert testimony indicated inconsistencies in Ms. Collins’ employment history, portraying her as unreliable and suggesting her sporadic employment contributed to the jury’s decision on damages. The dissent notes her average work history of only 6.2 months per year and lack of employment in the six months leading up to the accident, reinforcing the argument that the jury's findings were reasonable given the evidence presented.
The jury had the discretion to disregard the testimonies of Ms. Collins' expert witnesses, Mr. Lipinski and Dr. Bettinger, and instead accept Mr. Peterson’s testimony, which contributed to the rejection of Ms. Collins' $1.2 million claim for future lost wages. The award of $35,000 for future lost wages was supported by the jury's assessment of Ms. Collins' credibility, her inconsistent work history, and the credibility of expert testimonies. Despite Ms. Collins being only thirty-five and permanently disabled according to her doctors, the jury’s decision was within its discretion and not deemed manifestly wrong. The jury did not award damages for future mental and physical pain, loss of enjoyment of life, or disability. The trial court later awarded $275,000 for these damages, which it deemed reasonable if it were the fact finder. However, the jury's lack of awards for these elements reflected its judgment on the evidence and Ms. Collins’ credibility. The review standard established by the supreme court in Joseph prohibits the trial court or appellate court from substituting their judgment for that of the jury, emphasizing that reasonable differences in damage assessment exist. Additionally, while Ms. Collins represented her minor daughter in the lawsuit, the record shows her daughter's claims were not presented to the jury. Louisiana law mandates that future medical expenses incurred post-judgment be paid from the Future Medical Care Fund directly to medical providers. The jury was instructed not to discount future medical expenses, and Dr. Kurth confirmed that these would be billed directly to the State as incurred. The trial court also provided the jury with instructions regarding the handling of future medical expenses.
