NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-657
GREGORY MOUTON
VERSUS
ENCOMPASS INSURANCE CO., ET AL.
**********
APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF IBERIA, NO. 113391 HONORABLE JAMES RAY MCCLELLAND, DISTRICT JUDGE
ELIZABETH A. PICKETT JUDGE
Court composed of Oswald A. Decuir, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
AFFIRMED.
James L. Donovan, Jr. Donovan & Lawler, APLC 4640 Rye St. Metairie, LA 70006-0000 (504) 454-6808 Counsel for Defendant/Appellant: Encompass Insurance Company Patsy Dauterive Robert Lynn Manard III Attorney at Law 1100 Poydras St., Suite 2610 New Orleans, LA 70163 (504) 585-7777 Counsel for Plaintiff/Appellee: Gregory Mouton PICKETT, Judge.
The plaintiff and the defendants in this personal injury action appeal certain
damage awards the jury made in favor of the plaintiff. Each assigns error with
specific damage awards and with actions taken or rulings made by the trial court
during the trial or in conjunction with post-trial motions. We affirm.
FACTS
Gregory Mouton was seriously injured while driving his motorcycle on July
17, 2008, when he was struck by a vehicle driven by Patsy Dauterive in New
Iberia. The accident occurred when Ms. Dauterive turned left in front of his
motorcycle, causing him to be thrown into the air. He landed on his back on the
roadway, which caused him to sustain a severe fracture to his right pelvis and hip
cup. Mr. Mouton was thirty-two years of age.
Four days later, surgery to repair the fractures with hardware and screws was
performed by Dr. Kevin Riche at Our Lady of the Lake Regional Medical Center
in Baton Rouge. The surgery required that a nerve which gives sensation to the
outside of the leg be severed, resulting in permanent loss of feeling from that nerve
in Mr. Mouton’s right leg. Mr. Mouton was hospitalized for a week after the
surgery, then released to no weight bearing for three months during which time he
progressed to full weight bearing. Dr. Riche prescribed physical therapy and
treatment during that time. Dr. Riche does not assign permanent disability ratings,
and he did not order a functional capacity examination be performed on
Mr. Mouton. He released Mr. Mouton, instructing him he could do whatever he
felt capable of doing.
In April 2010, Mr. Mouton returned to Dr. Riche. Dr. Riche had not
prescribed him any medications for a year. On examination, Dr. Riche found no
appreciable difference between Mr. Mouton’s right hip and his uninjured left hip; there was almost equal strength in both hips. Mr. Mouton did complain, however,
of popping and tenderness in his right leg from his right hip to his knee. Even so,
Dr. Riche remained of the opinion that Mr. Mouton could return to any activity
that he felt capable of performing without restriction.
Approximately one year and five months before the accident, Mr. Mouton
left his employment as a second mate on a ship to return to his hometown of New
Iberia to complete renovations on a building his mother had purchased. He did so
at his mother’s request and was not compensated for his services.
Mr. Mouton had joined the Naval Reserve in 1998, then attended and
graduated with a degree from the State University of New York Maritime College
in May 2000. He began sailing in 2001 with Maersk Line Limited as a third mate
on ―roll on, roll off‖ railroad ships. Following a year at sea, he was promoted to
second mate. Mr. Mouton sailed until February 2007, when he returned home to
assist his mother. Due to lack of sailing for over a year, he lost his medical
benefits.
In 2010, after being released by Dr. Riche, Mr. Mouton began working as a
plumber’s helper, which he continued to do at the time of trial. He earned $10 an
hour and worked between thirty to forty hours a week. He continued his
commission in the Naval Reserve after the accident.
Mr. Mouton sued Ms. Dauterive and her insurer, Encompass Insurance
Company, to recover damages. On January 25, 2010, the parties stipulated that
Ms. Dauterive was 100% at fault for the accident. As a result of the stipulation and
Mr. Mouton’s work history, the primary dispute at trial was the economic losses
Mr. Mouton sustained as a result of the injuries he suffered in the accident. The
parties contested the degree of any permanent injury Mr. Mouton sustained and the
effect any such permanent injury had on his earning capacity. Mr. Mouton 2 testified that before his accident, he had intended to return to sea for the rest of his
life and he had had been working on promotion to chief mate by completing
seventy-five percent of the courses required to take the chief mate exam.
Mr. Mouton explained that he needed only two more classes to take the exam and
that eighteen months was a reasonable time period to complete those courses.
Mr. Mouton described the duties of a second mate as including heavy work
such as climbing, standing, walking, and drills. He related that he did not believe
he could return to sea. He fears it would not be safe for others, and he would be
putting lives at risk. Mr. Mouton testified that he continues to have leg pain and
that activity increases his pain, explaining that working for a prolonged time or
walking a mile or more causes throbbing pain in his hip. He further testified he
cannot lift very heavy things, but he can lift and squat but not for long periods of
time. He explained that he tries to do as Dr. Riche instructed—whatever he is
capable of doing—but when he does, he suffers. According to Mr. Mouton, when
he sits, he has stabbing pain in his leg, and that he has come to realize that the pain,
weakness, and numbness in his leg will be permanent. This and his inability to
return to sailing, hunting, and fishing, activities he enjoyed before the accident,
depress him. Lastly, he testified that his leg pain had worsened in the weeks before
trial.
Mr. Mouton and the defendants presented opposing expert testimony
regarding the likelihood of him returning to work at sea, his employment outlook,
his likely earning capacity in such employment, and the resulting economic impact
the accident had on him. After deliberating, the jury returned a verdict awarding
Mr. Mouton damages for past and future medical bills, past lost wages, future loss
of earnings/earning capacity, loss of fringe benefits, past, present and future mental
and physical pain and suffering, permanent physical impairment and disability, and 3 loss of enjoyment of life. The jury did not award him damages for loss of
household services as requested. The manner in which two of the damage awards,
past lost wages and loss of fringe benefits, were written on the Verdict Form
presented an issue when the parties attempted to reduce the jury’s verdict to a
written judgment. The trial court resolved the issue in Mr. Mouton’s favor,
determining the jury intended the awards to be $105,000.00 for past lost wages and
$450,000.00 for loss of fringe benefits.
The defendants filed a motion for new trial, remittitur, and/or judgment
notwithstanding the verdict. The trial court held that a new trial was not warranted,
the evidence did not support the jury’s award for future medical bills, and the
remaining damages awards in the judgment were supported by the evidence. The
defendants appealed, assigning four errors. Mr. Mouton answered the appeal,
assigning six errors and seeking sanctions for frivolous appeal.
ASSIGNMENTS OF ERROR
The defendants assign four errors with the trial court proceeding:
1. The trial court abused its discretion in failing to grant their post- trial motion for new trial, judgment notwithstanding the verdict or remittitur and set the awards for past loss wages and loss of fringe benefits in accordance with the jury’s written verdict.
2. The trial court abused its discretion in failing to grant their post- trial motion for new trial, judgment notwithstanding the verdict or remittitur, as the plaintiff’s attorney persistently made calculated inflammatory remarks designed to appeal to the passions and prejudices of the jury.
3. The trial court abused its discretion when it failed to grant their post-trial motion for new trial, judgment notwithstanding the verdict or remittitur, as it failed to allow introduction of the surveillance video of plaintiff and plaintiff was allowed to present evidence of future employment that had not been turned over to defendant during discovery before trial.
4. The jury erred and the trial court abused its discretion when it failed to grant their post-trial motion for new trial, judgment
4 notwithstanding the verdict or remittitur, as to the jury’s award for future lost earnings/earning capacity.
Mr. Mouton assigns six errors with the trial court proceeding:
1. The trial court abused its discretion by granting the defendants’ motion for judgment notwithstanding the verdict and eliminating the future medicals award of $15,000.00.
2. The jury abused its discretion when it failed to award the full amount of past medical bills stipulated to by both parties.
3. The jury abused its discretion in failing to award an adequate amount of physical and mental pain and suffering and loss of enjoyment of life.
4. The jury abused its discretion in failing to make an adequate award for past and future earning capacity and fringe benefits.
5. The trial court erred in failing to give him his requested earning capacity charges.
6. The trial court erred in failing to allow him to introduce an email on rebuttal.
TRIAL COURT ERRORS
Past Lost Wages & Loss of Fringe Benefits
The defendants argue the trial court erred in not granting their motion for
new trial, judgment notwithstanding the verdict, or remittitur and in not setting the
awards for past loss wages and loss of fringe benefits in accordance with the jury’s
written verdict. The jury completed pertinent parts of the verdict form in the
following manner:
Past Medical Bills: $ 72,000.00 Future Medical Bills: $ 15,000.00
....
Past Lost Wages $ 105,00.00 Future Loss of Earnings/ $ 1,680,000.00 Earnings Capacity: Loss of Fringe Benefits: $ 450,00.00
5 After the hearing on the defendants’ motion, the trial court acknowledged
these awards presented a problem but observed that ―comma’s line up with the
other commas. It just happens on those two instances there is, there is a lack of a
third zero in front of the decimal. But the commas line up perfectly and the
columns line up perfectly.‖ The trial court also observed that the verdict was
returned late at night after the conclusion of a four-day trial and that ten of the
twelve jurors answered, ―Yes.‖ when asked, ―[I]s this your verdict?‖ by the
minute clerk after she read the verdict form aloud.
There are no cases precisely on point; however, we find no error with the
trial court’s determination concerning either of these awards. First and foremost,
the jury awarded less for past lost wages than the defendants’ own expert
calculated. Dan Cliffe testified as an expert in the field of economic analysis in
determination of potential for economic loss. He calculated Mr. Mouton’s past lost
wages to be $105,615.00, as opposed to Mr. Mouton’s expert, who calculated his
past lost wages to be $345,601.00.
The determination with regard to loss of fringe benefits is not as easy. The
forty-five of $450,00.00 almost lines up exactly with the sixty-eight of the
$1,680,000.00 award for future loss of earnings/earnings capacity. Mr. Cliffe
opined that Mr. Mouton would not suffer any loss of fringe benefits, explaining he
believed any shore-side maritime employment Mr. Mouton obtained would
provide significant fringe benefits; otherwise, the employment would not be
competitive with other employers. Dr. G. Randolph Rice, on the other hand,
calculated Mr. Mouton’s loss of fringe benefits to be $910,954.00.
The defendants argue the trial court improperly conducted its polling of the
jury; therefore, it does not support the trial court’s conclusion that the jury intended
the $450,00.00 to be $450,000.00. There is no codal or statutory authority for civil 6 litigants to poll jurors as La.Code Crim.P. art. 812 provides for criminal litigants.
Owens v. Concordia Elec. Co-op, Inc., 95-1255 (La.App. 3 Cir. 6/25/97), 699
So.2d 434, writs denied, 97-2698, 97-2728, 97-2736 (La. 1/9/98), 705 So.2d 1113,
1120, respectively. Courts, however, have afforded civil litigants the right. Id.
The trial court polled the jury as described in Owens, having the minute
clerk ask each juror, ―[I]s this your verdict?‖ after she read the verdict aloud.
Moreover, this court determined in Owens the trial court erred in making further
inquiry into the jury’s verdict after polling showed that ten of the twelve jurors
agreed with the verdict. Accordingly, the trial court’s polling of the jury was
proper and an appropriate basis for its refusal to award $10,500.00 for past lost
wages and $45,000.00 for loss of fringe benefits.
Contrary to the defendants’ claim, Acosta v. Pendleton Mem’l Methodist
Hosp., 545 So.2d 1053 (La.App. 4 Cir.), writs denied, 551 So.2d 637; 638
(La.1989), does not require that each juror be asked, ―Is this your verdict?‖ for
each interrogatory on the verdict form. In Acosta, the jury was polled as to one
specific interrogatory on the verdict form only because the plaintiff requested
polling as to that specific issue.
Remarks/arguments by Plaintiff’s Counsel
The defendants urge that comments made by Mr. Mouton’s attorney during
the course of the trial, such as ―this case is bigger than plaintiff, the next injured
person will be treated based on your award to plaintiff‖ and ―Encompass is doing
to plaintiff what BP is going to do to you, just watch!,‖ prejudiced the jury in
Mr. Mouton’s favor.
Although Mr. Mouton’s attorney did make the noted comments, review of
the jury’s awards shows the comments did not prejudice the jury in favor of
Mr. Mouton. Six of the nine damage awards were amounts acknowledged as due 7 by the defendants or suggested by their experts or less. Mr. Mouton presented
evidence that he had past medical expenses of $72,663.15, but the jury only
awarded him $72,000.00 in past medical expenses. Also, as noted above, the jury
awarded Mr. Mouton less for past lost wages than the defendants’ expert
calculated. Importantly, the jury awarded the exact amounts suggested by counsel
for the defendants for physical pain and suffering, past, present, and future; mental
pain and suffering, past, present, and future; permanent physical impairment and
disability; and loss of enjoyment of life.
The jury’s awards for future loss of earnings/earning capacity and loss of
fringe benefits were greater than the amounts calculated by the defendants’ experts
but less than one-half the amounts calculated by Mr. Mouton’s experts.
Mr. Mouton argued the evidence established that his injuries resulted in him
suffering a future loss of earnings/earning capacity in the amount of $5,033,410
and loss of fringe benefits in the amount of $910,054.00. The defendants argued
his future loss of earnings/earning capacity was $231,150.00, but he had no fringe
benefits loss. The jury awarded $1,680,000.00 and $450,000.00, respectively.
Improper remarks by counsel constitute reversible error only when the court
is ―thoroughly convinced the remark[s] influenced the jury and contributed to its
verdict.‖ State v. Eaton, 524 So.2d 1194, 1208 (La.1988), cert. denied, 488 U.S.
1019, 109 S.Ct. 818 (1989). The jury’s verdict was supported by expert opinion,
and when considered in light of those opinions, the damage awards show the
complained-of remarks had little, if any, influence on the jury’s verdict.
Accordingly, the trial court did not err in refusing the defendants’ request for a new
trial, judgment notwithstanding the verdict, or remittitur on the basis of these
damages awards.
8 Evidentiary Rulings
The defendants and Mr. Mouton each complain the trial court erred in
refusing to admit evidence they sought to introduce at trial.
Two weeks before trial, an investigator for the defendants filmed
Mr. Mouton assisting his employer in installing a ramp to provide handicap access
to mobile home/trailer. The defendants sought to play the video for the jury during
trial. After a hearing the morning trial began, the trial court rejected the request
because the video was not listed on the defendants’ pre-trial exhibit list. The
defendants argue the trial court erred in rejecting their request to play the video for
the jury. They contend Mr. Mouton’s damage awards would have been much
lower if they had been allowed to show the video to the jury because it shows
Mr. Mouton is capable of doing heavy labor which he claimed he could no longer
perform due to his injury. To compensate for not being able to show the video,
defense counsel reviewed with Mr. Mouton his deposition where he testified he
was merely a gopher for his employer and simply handed him tools, then engaged
Mr. Mouton in an in-depth cross-examination regarding each action the video
showed him making.
The defendants objected the morning trial started when the trial court ruled
the video was inadmissible, but they did not proffer the video during trial. Failure
to proffer excluded evidence precludes the offering party from complaining of the
excluded testimony because the appellate court cannot analyze the evidence and its
admissibility. Wilzcewski v. Brookshire Grocery Co., 10-1148 (La.App. 3 Cir.
3/16/11), 59 So.3d 530; Whitehead v. Kan. City S. Ry. Co., 99-896 (La.App. 3 Cir.
12/22/99), 758 So.2d 211, writ denied, 00-209 (La. 4/7/00), 759 So.2d 767.
Therefore, we need not address this issue.
9 Mr. Mouton complains the trial court erred in refusing to allow him to admit
an email from his former employer offering him employment one month after the
accident. Although Mr. Mouton offered the email in rebuttal to the defendants’
arguments that he did not prove he was entitled to an award for past lost wages, the
trial court ruled it was inadmissible. The trial court reasoned that Mr. Mouton’s
failure to include the email on his pretrial exhibit list when it was available to him
and he knew ―whether he could go back to work as a seaman‖ would be an issue at
trial warranted exclusion of the email.
A trial court has vast discretion in ruling on the admissibility of evidence,
and its decision to admit or exclude evidence will not be reversed on appeal unless
it is clearly shown that it has abused that discretion. Gutierrez v. Baldridge, 10-
1528 (La.App. 3 Cir. 5/11/11), 65 So.3d 251. For the reasons explained by the trial
court, we find it did not abuse its discretion in denying Mr. Mouton’s request to
admit the email into evidence.
The defendants urge the trial court should have prohibited Mr. Mouton’s
testimony that he received the job offer and the email. We do not agree. First, the
defendants do not argue they had no knowledge of the job offer prior to hearing
him testify at trial. Second, it was the jury’s duty to assess Mr. Mouton’s
credibility. Third, the jury’s damage awards show the jury did not accept all of
Mr. Mouton’s or his expert witnesses’ testimony as completely credible.
Jury Charges
Mr. Mouton urges the trial court’s charge on earning capacity did not
adequately summarize the law and the trial court erred in refusing to include two
jury charges on earning capacity he submitted. The charges the trial court refused
to include read: ―Impairment of earning capacity may be measured by plaintiff’s
highest earnings and not restricted by average wage earned by plaintiff‖ and ―Loss 10 of earning capacity is not the same as lost wages.‖ A third charge on earning
capacity which the trial court did include in its charges read:
Earning capacity in itself is not necessarily determined by actual loss; damages may be assessed for the deprivation of what the injured plaintiff could have earned despite the fact that he may never have seen fit to take advantage of that capacity. The theory of that is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily.
If the trial court’s charges ―adequately provide the correct principles of law
as applied to the issues framed in the pleadings and the evidence‖ and ―adequately
guided the jury in its deliberation,‖ they were sufficient. Adams v. Rhodia, Inc.,
07-2110, p. 7 (La. 5/21/08), 983 So.2d 798, 804. The issue is whether the
instructions were misleading to the extent that they prevented the jurors from
dispensing justice. Id.; Wooley v. Lucksinger, 09-571, 09-584, 09-585, 09-586 (La.
4/1/11), 61 So.3d 507.
We have reviewed the trial court’s jury charges and find that while they did
not state specifically what Mr. Mouton requested, they adequately stated the law
on earning capacity and set forth the factors the jury could consider in determining
an award for loss of earning capacity, as the supreme court initially outlined in
Folse v. Fakouri, 371 So.2d 1120 (La.1979). Accordingly, we find no error with
the trial court’s refusal to include the requested instructions in its jury charges.
DAMAGES
Medical Expenses
Mr. Mouton complains the jury erred in not awarding the full amount of past
medical expenses he incurred, asserting the defendants’ stipulated his past medical
expenses totaled $73,267.60 when they stated in their pre-trial memorandum that
he ―incurred medical bills‖ in that amount. Mr. Mouton presented evidence that
his past medical expenses actually totaled $72,663.15. 11 ―A stipulation is a judicial confession and amounts to full proof‖ against the
person making it. Aycock v. City of Shreveport, 535 So.2d 1006,1013 (La.App. 2
Cir. 1988), writ denied, 536 So.2d 1223 (La.1989); La.Civ. Code art. 1853. A
statement is a judicial confession and incontrovertible evidence of a particular
issue if it is ―an express acknowledgement of an adverse fact.‖ Mitchell v.
Artcrete, Inc., 09-492, p. 8, (La.App. 3 Cir. 12/9/09), 24 So.3d 1000, 1005 (quoting
Leday v. Safeway Ins. Co. of La., 04-610, p. 6 (La.App. 3 Cir. 11/17/04), 888 So.2d
1084, 1088) (citations omitted). To constitute ―an express acknowledgement of an
adverse fact,‖ a statement must have caused the adverse party to believe ―the fact
was no longer at issue.‖ Id.
Mr. Mouton did not believe the amount of his past medical expenses was
―no longer at issue,‖ as he presented evidence of his past medical expenses at trial
and he did not ask the trial court to inform the jury that the defendants stipulated to
the amount of his past medical expenses. Additionally, as noted by the defendants,
if they had stipulated to his past medical expenses, that item of damages would not
have been included on the Verdict Form. Despite there being no stipulation for the
amount of past medical expenses, we find Mr. Mouton proved he is entitled to
have the jury’s award of $72,000.00 increased to $72,663.15.
Medical expenses are special damages which must be proved by a
preponderance of the evidence. Cormier v. Colston, 05–507 (La.App. 3 Cir.
12/30/05), 918 So.2d 541. To satisfy his burden with regard to his claims for
medical expenses, Mr. Mouton had to prove, more probably than not, that the
expenses were incurred or will be incurred for medical treatment necessitated by
injuries caused by the accident. Ardoin v. Bourgeois, 04-1663 (La.App. 3 Cir.
12 11/2/05), 916 So.2d 329. This required him to present medical testimony
regarding the need of the treatment and its actual or probable cost. Id.
The trial court also did not err in setting aside the jury’s award of future
medical expenses because the only evidence Mr. Mouton presented on this item of
damages was that he would have arthritis as a result of his injury. His doctors did
not testify that he would more probably than not require medical treatment for
arthritis in the future or what the treatment would cost. Mr. Mouton’s counsel
simply argued to the jury that it should ―assume‖ $15,000.00 would be sufficient to
cover future medical expenses required to treat his arthritis.
General Damages
The defendants argue the trial court erred in denying its motion for new trial,
judgment notwithstanding the verdict, or for remitter to reduce the jury’s award for
future lost earnings and earning capacity, and Mr. Mouton argues the jury erred in
failing to award him damages for physical and mental pain and suffering and loss
of enjoyment of life, past and future earning capacity, and fringe benefits.
The jury heard testimony of Mr. Mouton and his mother, as well as the
testimony of expert witnesses, including his treating physician, on all the elements
of damages itemized on the Verdict Form, except future medical expenses. The
jury also heard Mr. Mouton acknowledge he had not set a return date to sail prior
to the accident; he had not taken a course towards his chief mate’s prerequisite
courses during his hiatus from work; he had lost his health insurance for failing to
return to sea in over a year from February 2007; and he had never been at sea for
ten months or 300 days any given year since he began sailing. The jury also heard
expert testimony regarding different potential employment Mr. Mouton might be
suited for in light of his injury, education, and work experience, the potential
income and fringe benefits such employment could provide him, and the impact his 13 injury had on his earning capacity. The experts’ credentials and opinions were
thoroughly presented and examined by counsel for Mr. Mouton and the defendants
which allowed the jury to weigh the credibility of the witnesses. It also allowed
the jury to evaluate Mr. Mouton’s testimony that before the accident he intended to
return to sea and the opposing experts’ opinions as to the likelihood of him doing
so or obtaining other sea-related employment in light of each other.
The jury has much discretion in assessing damages; its assessment of
damages is a finding of fact subject to the manifest error standard of review. Ryan
v. Zurich Am. Ins. Co., 07-2312 (La. 7/1/08), 988 So.2d 214. Damage awards
cannot be set aside unless they are shown to be clearly wrong. Id. The jury’s
damage awards are not clearly wrong as they are well supported by the record.
FRIVOLOUS APPEAL
In his answer, Mr. Mouton asserts the defendants’ appeal is frivolous and
warrants the imposition of sanctions, as provided in La.Code Civ.P. art. 2164.
Damages, including attorney fees, may be awarded when an appeal does not
present any serious legal question, is taken only for the purpose of delay, or when
it is clear appellant’s counsel does not believe his position has merit. Hannie v.
Guidry, 10-216 (La.App. 3 Cir. 10/6/10), 48 So.3d 396.
Although we have found no merit in any of the defendants’ assignments of
error, we have no doubt defense counsel seriously believes in the positions he
advocates, and this appeal is not frivolous.
DISPOSITION
The judgment of the trial court granting Encompass Insurance Company and
Patsy Dauterive’s motion for new trial, judgment notwithstanding the verdict,
and/or remitter with respect to the jury’s award of future medical expenses but
denying it in all other respects and awarding Gregory Mouton $2,617,000.00 plus 14 costs and interest from the date of judicial demand is affirmed. Costs of this
appeal are assessed to Encompass Insurance Company and Patsy Dauterive.