Court: Louisiana Court of Appeal; January 15, 2019; Louisiana; State Appellate Court
Defendants Eldorado Casino Shreveport Joint Venture, L.L.C., Eldorado Shreveport. 1, L.L.C., and Eldorado Shreveport. 2, L.L.C. (collectively "Eldorado") appeal the denial of their motion in limine and the judgment from the First Judicial District Court, Parish of Caddo, Louisiana, which awarded damages to plaintiff Yasheka Jack. Jack sustained injuries on November 9, 2013, when a beverage server, Denise Ramone, spilled hot coffee on her, causing Jack to twist and injure her back. Jack filed a suit on October 3, 2014, accusing Eldorado of negligence, to which Eldorado responded with various affirmative defenses, including that Jack's injuries were caused by others.
Eldorado sought to exclude from evidence the portions of Jack's medical expenses that were written off, arguing that because Jack did not incur these costs, the collateral source rule should not apply. The trial court denied this motion, affirming that the rule applied to write-offs negotiated by Jack's private insurer, and thus the evidence reflected the total medical expenses charged to Jack without the write-offs. Eldorado failed to present evidence on the specific amounts of those write-offs during the trial.
The trial commenced on September 11, 2017, with 11 witnesses testifying. A jury found Ramone negligent and attributed 100% of the fault to her, determining that the unknown patron involved was not negligent. The jury awarded Jack a total of $1,429,928.70 for various damages, including past and future medical expenses, lost wages, and pain and suffering.
Eldorado's post-trial motion for judgment notwithstanding the verdict was denied, with the trial court noting that the jury's decisions regarding fault and future lost wages were credibility determinations. The court also declined to reduce the award for past medical expenses due to the lack of evidence regarding the specific write-off amounts. Eldorado appeals on three grounds: the fault assessment against Ramone, the future lost wages award, and the application of the collateral source rule concerning the insurer-negotiated write-offs.
Eldorado's initial assignments of error focus on the jury's credibility assessments. Under the manifest error standard, appellate courts afford significant deference to trial court findings regarding witness credibility. Reversal is warranted only if, after reviewing the entire record, there is no reasonable basis for the finding or if the factfinder is clearly wrong. The appellate court may identify manifest error if objective evidence contradicts a witness's account or if the account is internally inconsistent. However, if the finding stems from the factfinder's choice to credit one witness over others without such contradictions, it is rarely deemed manifestly erroneous.
Eldorado contends the jury incorrectly assigned 100% fault to Ramone, rejecting her uncontradicted testimony about the accident's cause. The court disagrees, noting that a jury's fault assessment is factual and can only be overturned if clearly wrong.
Jack's testimony indicated that on the night of her injury at the Eldorado Casino, she was seated with her aunts when hot coffee was spilled on her. She identified Ramone as the waitress responsible and noted Ramone did not explain the spill but repeatedly apologized. On cross-examination, Jack admitted she did not see the cause of the spill, as she was looking away at the time. Ramone testified that, as part of her duties, she organizes drinks on her tray to prevent spills, placing hot coffee in the center and heavier drinks around it for balance.
Ramone testified that it was her responsibility and training to monitor rowdy patrons, who often made sudden movements, such as jumping out of their chairs. On the day of Jack's injury, she noted that the coffee was still steaming when she delivered it and that, although she initially positioned it in the center of her tray, she could not guarantee its location at the time of the accident due to multiple drink deliveries and pickups. When she entered the aisle, Jack was seated on her left, and an unidentified patron was on her right. The unknown patron stood up, causing her chair to slide back and bump into Ramone's right hip, leading to her loss of balance and the subsequent spilling of hot coffee onto Jack. Ramone stated that the unknown patron's movement was typical and unexpected. After the incident, the unknown patron assisted in cleaning up the spills.
Surveillance footage of the event was reviewed, but Ramone indicated that it did not capture the actual accident, only the moments before and after. She did not obtain the unknown patron's contact information, deeming it unnecessary. Mary Williams, who was with Jack, recognized a still shot from the surveillance video but could not recall the seating arrangement clearly. She did not witness anyone, other than Eldorado employees, approach the scene post-accident to claim responsibility. Tolonia Bryant, also present, observed Ramone spill the drinks but did not see anyone bump into her or any individual take responsibility after the incident. The jury ultimately found Eldorado 100% at fault for Jack’s injuries.
Eldorado contends that Ramone's uncontradicted testimony does not justify a 100% fault finding against them. However, witness testimonies from Bryant and Williams contradict Ramone's claims regarding an unknown patron causing her to lose balance and assisting her post-accident. Both witnesses, along with Jack, confirmed they observed Ramone stumble without interference from another patron. The surveillance video, which Eldorado produced, detracts from their credibility due to its poor quality and failure to capture the incident. Eldorado has not challenged the jury's finding that the unknown patron was not negligent. The jury's determination that Eldorado was fully at fault is supported by the evidence presented.
Regarding the award for future lost wages, Eldorado argues the jury erred since Jack could return to work with accommodations. The court disagrees, noting that loss of earning capacity awards are inherently speculative and rely on the discretion of the trier of fact, provided there is factual support in the record. Jack, previously an office manager earning $33,000 annually and a single mother of three, had a diverse work history prior to her injury. Despite her efforts in community college, she struggled academically due to persistent pain following her injury and subsequent lumbar fusion surgery in November 2015. Jack continues to experience pain, impacting her ability to perform her work duties as she did before the injury.
Jack reported that her pain increases with activity and continues to receive sacroiliac joint injections. As of the trial date, she had not been cleared to return to work by her doctor, Dr. Kerr, despite her desire to do so due to her enjoyment of the job and financial need. She experiences constant discomfort and difficulty with sitting, standing, and lying down, which hinders her ability to perform her previous duties at Velocity Care, necessitating assistance with tasks she likely would not receive. Jack last worked in October 2015 and had not sought accommodations or new employment since then, although she applied for Social Security disability and was denied.
Dr. Kerr, an orthopedic specialist, testified via video deposition about his treatment of Jack since July 2014, diagnosing her with a disk bulge and annular tear. He performed a successful 2-level lumbar fusion surgery in November 2015 but indicated that such surgery typically results in only 70-75% pain relief. He recommended ongoing sacroiliac injections and pain management, noting Jack still experiences pain and may require further surgery.
Dr. Larry Stokes, an expert in vocational rehabilitation, also provided video testimony, detailing his assessment of Jack's condition and employability. He conducted interviews and tests, reviewed her medical records, and concluded that she relied on her children for daily activities due to her pain and reduced mobility. Stokes determined that Jack’s position at Velocity Care represented her highest employment level and that no medical professional had cleared her to work, leading him to believe she was unlikely to return to her previous role as an office manager.
Jack currently has no earning capacity due to a lack of medical clearance for work, resulting in a projected 100% loss of income for the rest of her work life expectancy. Dr. Stokes optimistically suggested that Jack might be able to engage in part-time, light office management roles, such as office clerk or receptionist, with an earning capacity of $8,507 to $11,242, leading to an annual loss between $21,757 and $24,492. Dr. Stokes emphasized uncertainty regarding Jack's future work capacity, as she is still undergoing treatment and education. He noted that independent evaluations by Dr. Goodman and physical therapist Steve Allison did not confirm Jack's ability to work, with Allison's functional capacity evaluation indicating Jack lacks the ability to safely perform even light or sedentary work without significant adjustments. Dr. Stokes, who is not a medical doctor and did not examine Jack physically, based his opinions on reports from other medical professionals.
John W. Theriot, an expert in forensic economics, provided testimony regarding Jack's economic losses, having reviewed her earning records and related reports. He calculated her future lost income using a standardized work life expectancy table, determining that Jack's work life expectancy was approximately 19.24 years. Theriot multiplied this figure by a projected salary of $39,766, leading to an estimated total future lost earnings of $692,802, while accounting for investment earnings and inflation.
Theriot calculated Jack's potential future loss of earnings, estimating $496,945 if she returned to part-time work, and $301,069 if she returned full-time at $22,485 per year. With a base wage of $33,000, he projected future lost wages of $574,925 if Jack did not return to work, $379,067 for part-time work at $11,242, and $183,192 for full-time work at $22,485. Theriot used a current work life table, contrasting his methodology with Eldorado's economist, who incorporated outdated tables. Theriot relied on vocational experts to assess Jack's ability to return to work.
Dr. Carl Goodman, an orthopedic expert for Eldorado, conducted an independent medical examination of Jack, suggesting she might have a small annular tear in her back but believed she did not require further treatment beyond pain medication. He acknowledged Jack's back injuries would likely hinder her job performance as an office manager, leading to potential future absenteeism, and confirmed she sustained a permanent injury from the incident.
Dr. Steve Allison, an expert in functional capacity evaluations, conducted a comprehensive assessment of Jack, noting her moderate limp and limitations in lumbar spine motion. He concluded Jack could return to work full-time in a sedentary to light capacity with restrictions, tolerating a maximum of 5.25 hours of sitting per day. However, he highlighted that her duties at Velocity Care involved medium work, complicating her return due to the physical demands of her job.
Jack requires accommodations to perform her former job at Velocity Care, specifically for tasks involving sitting, standing, walking, carrying, lifting, and various physical activities. Dr. Allison noted discrepancies between Jack's account of her office manager duties and both his own experience and the dictionary of occupational titles, concluding that Jack lacked the functional ability to perform 60% of her prior responsibilities. He indicated that Jack had likely reached maximum functional improvement and suggested her work restrictions should be permanent. Kristan Gilliam, Jack's direct supervisor at Velocity Care, affirmed Jack's reliability and strong relationships with colleagues, stating she had never faced reprimand or negative evaluations.
Kenneth Brister, a vocational rehabilitation expert, assessed Jack's capabilities by reviewing her medical and social security records, interviewing her, and analyzing her educational and work background. He conducted a transferable skills analysis and determined that Jack could return to work in sedentary to light-duty positions with limitations. Brister emphasized the flexibility of the office manager role in delegating tasks and noted that employers are increasingly accommodating. Aside from office manager, he identified other suitable positions for Jack, including receptionist, unit clerk, and medical coder, which she had previously held.
Brister testified that Jack could potentially work in various clerical positions but did not prepare a life care plan or assess her future medical needs. He reviewed Dr. Goodman's deposition but was not present during the live testimony and did not consider Goodman's report in his findings because it did not address Jack's ability to work. Brister acknowledged that Dr. Kerr suggested Jack might need future surgery, but this information was not included in his report; he admitted its omission was an oversight. He concluded that Jack had not been cleared for unrestricted sedentary work and noted her pain level prevented her from performing her job, asserting she had not suffered a loss of earning capacity—though he acknowledged this opinion could change if her treating physician or an independent medical examiner found she could not work. Tim Shaughnessy, an economist for Eldorado, echoed Brister's view that Jack had no loss of earning capacity and therefore no future earnings loss. The jury's award for future lost wages was upheld, with the record showing substantial evidence of Jack's ongoing treatment and pain, which hindered her ability to return to her previous job without accommodations, thus supporting the jury's decision.
Jack is unable to perform her previous duties as office manager or even sedentary work without restrictions, and her injury is likely permanent. The jury considered two possible outcomes: either Jack could earn her pre-injury income or she could not. They reasonably determined she would experience future lost wages as a result of her injuries from the Eldorado Casino. The jury awarded less than half of Dr. Stokes' highest estimate of Jack's future lost earnings, demonstrating their discretion in assessing inherently speculative damages. Eldorado's claim regarding the collateral source rule related to written-off medical expenses was dismissed because they did not proffer evidence of the amounts excluded by the trial court, waiving their right to appeal this issue. The trial court's judgment in favor of Jack was affirmed, with all appeal costs assigned to Eldorado. Notably, the total damages awarded to Jack amounted to $1,429,928.79, which did not correspond with the jury's individual award figures.
