Court: Louisiana Court of Appeal; March 6, 2019; Louisiana; State Appellate Court
J.M. Drilling appeals the trial court's summary judgment in favor of John Thibodeaux regarding liability, the exclusion of certain expert testimony, and the denial of its motions for judgment notwithstanding the verdict (JNOV) and for a new trial. J.M. also contests the jury awards to Thibodeaux and his spouse as excessive. The court affirms the trial court's decision, with amendments.
The case stems from an incident on June 9, 2015, when Thibodeaux, while splicing fiber optic cable for AT&T, injured his right leg after a hand hole cover was lifted and the ground beneath him collapsed. The hand holes were near a pre-cast slab that supported an AT&T cabinet. Prior to the accident, both J.M. Drilling and Gulfgate Construction performed work in the area, with Gulfgate preparing the slab and installing the cabinet, and J.M. later installing fiber optic lines. It is alleged that J.M. damaged an underground sewer force main line owned by Water Wastewater Utilities, leading to a washout under the slab and the hole that caused Thibodeaux's fall. The sewer line had not been marked before the work commenced.
Thibodeaux and his wife filed suit against J.M. Drilling and other parties, but the others were dismissed, leaving J.M. as the sole defendant. Thibodeaux successfully moved for summary judgment on liability, and the case proceeded to a jury trial for damages. The jury awarded Thibodeaux $500,000 for future medical expenses, $2,275,000 for loss of future earning capacity, $90,000 for loss of household services, and $150,000 for loss of consortium to his wife. J.M. appeals these jury awards.
J.M. presents six assignments of error on appeal, asserting that the trial court improperly granted Mr. Thibodeaux's motion for summary judgment regarding liability, claiming genuine issues of material fact exist concerning the cause of a hole. Additionally, J.M. contends that jury awards for future medical expenses, loss of future earning capacity, and loss of consortium were excessive. J.M. argues that the trial court erred in excluding Dr. Greg Gidman's testimony as duplicative and in denying its motion for a new trial or judgment notwithstanding the verdict (JNOV).
In evaluating the summary judgment, the court employs a de novo standard of review, emphasizing that the burden of proof lies with the mover unless they are not responsible for the burden at trial. In such cases, the mover need only demonstrate the absence of factual support for the adverse party’s claims. The determination of material facts hinges on their potential impact on recovery and the ability of reasonable persons to disagree on the issue.
J.M. claims the trial court erred by granting summary judgment, positing that testimony from its employee, Mark Moore, indicating that the J.M. crew did not damage the pipe, suffices to counter the motion. However, the court finds that depositions and exhibits clearly establish the events leading to the sinkhole that injured Mr. Thibodeaux. Testimony confirms that the pipe was intact as of December 9, 2014, and subsequent work by Gulfgate contractors in January 2015 revealed the pipe in an undamaged state. Further inspection in February by Harold Broussard indicated disturbances at the site, supporting the conclusion that no genuine issue of material fact exists.
Disturbed earth was found between a pre-cast slab and the street, where a previously discovered pipe was located. A ten to twelve-foot section of pipe, bent as if pulled by an excavator, was also identified on the site. After an accident involving Mr. Thibodeaux, Mr. Smith and Mr. Romero returned to investigate, discovering a sinkhole that extended under the concrete slab and contained a broken section of the same pipe. They noted that a ten to twelve-foot section of the pipe was missing, which corresponded to the section found earlier by Mr. Broussard. Testimony from Kelly Vice confirmed that the pipe appeared to have been excavated and damaged, while Mr. Romero indicated that leaks from broken pipes could cause washouts and sinkholes.
Mark Moore, representing J.M., denied that his crew damaged the sewer line but acknowledged that they excavated in the vicinity without confirming the presence of the sewer line, despite the close proximity of a sewer station. He admitted that J.M. dug deeper than the sewer pipe’s depth, with water filling the holes, obscuring visibility. J.M.'s own exhibit indicated that bore holes were dug directly over the damaged pipe. Photographic evidence showed disturbed earth in the area and a fiber optic line placed just inches from the sewer line. Moore confirmed that bore holes were four feet square and at least four feet deep, making it improbable that they could have dug without impacting the pipe.
The evidence strongly indicates that J.M. was responsible for damaging the sewer line, leading to the leak and subsequent sinkhole. The trial court found no genuine issue of material fact regarding the cause of the damage, and J.M.’s claims of potential improper tamping around the hand hole lack sufficient support, relying on the depositions of Vice and Thibodeaux. The overwhelming evidence supports the conclusion that J.M. damaged the pipe.
Neither of the individuals referenced in the deposition related to the summary judgment motion stated that improper tamping of dirt would lead to a sinkhole; they only mentioned 'sinkage.' The court clarified that the incident resulting in Mr. Thibodeaux's injury was a three-foot sinkhole collapse, not mere ground sinking. Thus, hypothetical claims do not create genuine material facts to counter the summary judgment. The trial court's approval of Mr. Thibodeaux's summary judgment motion was upheld without error.
Regarding damages, J.M. raised three issues concerning jury awards for future medical expenses, future loss of earning capacity, and loss of consortium. The court disagreed with J.M. on the future medical damages and loss of consortium but agreed regarding future loss of earning capacity. The court emphasized the jury's significant discretion in determining general damages, which should only be altered on appeal if there is clear abuse of that discretion. The appellate review focuses on whether the damage awards fall within a reasonable range based on the specific injuries and circumstances of the case.
In challenging the future medical expenses award of $500,000, J.M. argued it exceeded projected costs from life care plans, which estimated between $400,000 and $430,000. However, the jury's award may have included future contested medical procedures not listed in the life care plans. Medical testimony sufficiently supported the awarded future medical expenses, which are justified if indicated by medical evidence outlining their probable costs.
Future medical expenses do not need to be quantified with absolute certainty; a minimum estimate based on past medical expenses and other evidence suffices. Courts can award costs for necessary future medical treatments, even if exact values are unavailable, as demonstrated in Hymel v. HMO of Louisiana, Inc. Future expenses are inherently speculative but must be established with a degree of certainty. In this case, Dr. Stubbs testified that Mr. Thibodeaux's knee damage is chronic and will likely require a knee replacement, necessitating Supartz injections to prolong the natural knee's life. These injections, required at a rate of five every six months for life, were supported by Mr. Thibodeaux's testimony and the jury's award, which was consistent with the evidence. Additionally, Dr. Sledge confirmed that Mr. Thibodeaux's fall led to meralgia paresthetica, necessitating potential hip nerve release surgery, supported by diagnostic tests. Although Mr. Thibodeaux did not provide specific costs for these surgeries, future medical expenses are valid claims even without precise estimates. The trial court can determine these costs based on the record and past expenses, and the jury's awards were reasonable when compared to similar cases, such as a $42,274.80 award for knee replacement in Trueman v. City of Alexandria.
The court awarded $500,000.00 for future medical expenses based on life care plans that indicated costs for necessary surgeries, including $60,000.00 for knee replacement surgeries and $80,000.00 for lumbar nerve decompression. The jury considered both the life care plans and medical expert testimony when determining the award.
Regarding loss of future earning capacity, competing expert opinions were presented. Dr. Stuart Wood estimated the loss at $471,360.16 but faced criticism for his methodology, which did not account for Mr. Thibodeaux's promotion, planned retirement, and other benefits. In contrast, Dr. George Rice calculated the loss at $2,152,134.00, incorporating Mr. Thibodeaux's promotion and benefits. The jury favored Dr. Rice's assessment but ultimately awarded $2,275,000.00, exceeding the evidence. The court reduced this figure to $2,152,134.00, stating that the jury exceeded its discretion.
Lastly, in terms of loss of consortium, the jury's award of $150,000.00 was challenged by J.M. as excessive. Loss of consortium encompasses both pecuniary and nonpecuniary elements, including emotional and relational impacts, as testified by Amy Thibodeaux. The jury's decision was influenced by her emotional testimony regarding the changes in her husband since the accident.
Mr. Thibodeaux's daily life has been significantly impacted by pain resulting from an accident, limiting his ability to engage in previously enjoyed outdoor activities and causing the family to forgo their annual camping trips. His wife, Mrs. Thibodeaux, highlighted the strain on the family dynamics and finances, as she now bears the financial burden due to his inability to work, leading to longer hours on her part. The court assesses general damages, including loss of consortium, based on the discretion of the fact finder, which was not found to be abused in this case.
A separate $90,000 award for loss of household services was deemed justified and not duplicative of the loss of consortium, supported by expert testimony regarding the costs of maintaining the family business now that Mr. Thibodeaux can no longer contribute. The trial court also exercised its discretion in excluding Dr. Gidman's testimony as cumulative, as it was determined to be redundant to Dr. Foster's allowed testimony regarding Mr. Thibodeaux's injury.
The motion for Judgment Notwithstanding the Verdict (JNOV) was denied, as the jury's findings on liability and damages were backed by competent evidence and were not unreasonable. The jury's awards were largely affirmed, except for a reduction in the loss of future earning capacity from $2,275,000 to $2,152,134. The appeals costs were assigned to J.M. Drilling. The prior ruling regarding liability was reiterated, emphasizing that the accident stemmed from a break in the main line that led to Mr. Thibodeaux’s injuries. The jury's decision on past lost wages favored Dr. Wood’s assessment over Dr. Rice’s, suggesting a potential attempt to balance the awards between past and future earnings while maintaining the finality of the past wages award.
