James v. Webb

643 So. 2d 424, 1994 WL 541541
CourtLouisiana Court of Appeal
DecidedOctober 5, 1994
Docket94-162
StatusPublished
Cited by6 cases

This text of 643 So. 2d 424 (James v. Webb) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
James v. Webb, 643 So. 2d 424, 1994 WL 541541 (La. Ct. App. 1994).

Opinion

643 So.2d 424 (1994)

Roy N. JAMES, et al., Plaintiffs-Appellants,
v.
Donald W. WEBB, et al., Defendants-Appellees.

No. 94-162.

Court of Appeal of Louisiana, Third Circuit.

October 5, 1994.

*426 Robert G. Nida, Alexandria, for Roy N. James et al.

William H. deLaunay Jr., Kenneth Mascagni, Shreveport, for Donald W. Webb et al.

Ethel June Wells, Baton Rouge, for United Services Auto Asso.

Before DOUCET, SAUNDERS and WOODARD, JJ.

WOODARD, Judge.

This lawsuit arises out of an automobile accident which occurred on November 27, 1990, in Shreveport, Louisiana. Plaintiffs, Roy James, individually and on behalf of his children Jason and Joshua James, and Vera James, are appealing the trial court's damages awards.

FACTS

Defendant, Donald Webb, who was driving an eighteen wheeler, rear-ended the plaintiffs' mini van at an intersection in Shreveport. Mrs. James was driving the mini van at the time of the accident. Her five year old son, Jason, was seated in the front passenger seat, and Mr. James was in the back seat with their nine month old son, Joshua, who was in a car seat.

The eighteen wheeler was travelling an estimated speed of 5-10 miles per hour when it neared the intersection and ran into the rear of the mini van. The rear window of the van shattered, spraying glass fragments into the van. The plaintiffs sustained injuries in the accident and subsequently filed this lawsuit against defendants, Donald W. Webb, his employer, Miller Transporters, Inc., its insurer, National Continental Insurance Company, and plaintiffs' uninsured motorist carrier, USAA Insurance Company. Defendants admitted liability for the accident, so the sole issue at trial was the extent of plaintiffs' damages.

A jury trial was held July 13-16, 1993 and the jury returned a verdict awarding damages *427 totalling $87,000 for Mrs. James, $34,600 for Mr. James, $1,240 for Jason James, and $730 for Joshua James. The jury also awarded $600 for rental car expense and $570 for baby sitting expense. Judgment in accordance with the jury's verdict was rendered August 25, 1993.

It is from this judgment that plaintiffs appeal, asserting the following assignments of error: (1) the trial court erred in allowing defendants to introduce evidence which indirectly informed the jury that Mrs. James was receiving workers' compensation disability payments for a prior lower back injury; (2) the trial court erred in allowing into evidence testimony concerning examinations by physicians who had conducted independent medical examinations of Mrs. James for a prior workers' compensation proceeding; (3) the jury abused its discretion in failing to make any award for certain elements of damage, and in making abusively low awards for other elements of damage; and (4) the trial court erred in denying plaintiffs' motion for judgment notwithstanding the verdict on the issue of quantum. Defendants answered the appeal, assigning as error the trial court's decision to allow Dr. Richard Galloway to testify as an expert witness in the field of vocational rehabilitation.

EVIDENCE OF WORKERS' COMPENSATION BENEFITS

In the first assignment of error, plaintiffs claim the trial court erred in allowing defendants to introduce evidence which indirectly informed the jury that Mrs. James was receiving workers' compensation benefits for a prior unrelated back injury.

Before the trial, plaintiffs filed a motion in limine to exclude "any testimony or other evidence of the nature and extent of a workers' compensation claim or a payment of past or future workers' compensation benefits for Vera E. James." At the hearing on the motion, the court ruled that evidence of Mrs. James' preexisting disability was relevant to the jury's determination of disability caused by the accident; however, the court prohibited any reference to the fact of a continuing workers' compensation claim or any amounts actually being received.

At the trial, Dr. Richard Levy and Dr. Daniel Sinclair were questioned by counsel for defendants about Mrs. James' prior back injury. Plaintiffs argue this line of questioning constituted an indirect reference to the fact that Mrs. James received workers' compensation benefits. We disagree. First, we question the relevancy to this issue of La.Code Evid. art. 414, which plaintiffs cite in support of their argument. This article prohibits evidence of a workers' compensation claim in a civil proceeding where there is a claim for damages relative to the same injury for which compensation benefits were claimed or paid. Mrs. James' compensation claim concerned an injury to her lower back, which is not an injury she claims damages for in the case sub judice. Furthermore, we have reviewed the testimony and find no reference, direct or otherwise, to a claim for, or the receipt of, workers' compensation benefits. This assignment of error has no merit.

TESTIMONY OF DR. DANIEL SINCLAIR

In the second assignment of error, plaintiffs claim the trial court erred in allowing Dr. Sinclair's video deposition into evidence. Dr. Sinclair performed an independent medical examination of Mrs. James over three and one-half years prior to this automobile accident and his testimony concerned her complaints of lower back and right leg pain at that time. Plaintiffs objected to the admission of the deposition into evidence by way of a pretrial motion in limine, arguing Dr. Sinclair's testimony was not relevant to the present proceedings. At the hearing on the motion, defendants argued the testimony was relevant to establish the extent of Mrs. James' preexisting disability.

The video deposition was admitted into evidence and shown to the jury. We find no error in the trial court's denial of plaintiffs' motion to exclude the deposition testimony as irrelevant. The information regarding Mrs. James' back and leg complaints was relevant to establish her pre-accident level of disability.

*428 Plaintiffs, however, now argue for the first time that Dr. Sinclair's testimony was used as an improper attack on Mrs. James' credibility. Dr. Sinclair made certain statements indicating Mrs. James may have been exaggerating her complaints, and plaintiffs claim these statements were prejudicial. The proper time to object to these statements, however, was at the trial. The parties' counsel stipulated prior to taking Dr. Sinclair's deposition that objections would be reserved until the deposition was offered into evidence at trial. Plaintiffs claim the motion in limine was sufficient to preserve the issue for appeal; however, the motion in limine concerned only the general relevancy of Dr. Sinclair's testimony, and was not sufficient to alert the trial court to unrelated complaints regarding specific statements made by Dr. Sinclair. See LaHaye v. Allstate Ins. Co., 570 So.2d 460 (La.App. 3 Cir.1990), writ denied, 575 So.2d 391 (La.1991).

Because plaintiffs' counsel failed to make a contemporaneous objection to the allegedly prejudicial testimony when this evidence was introduced, this issue was not properly preserved for appellate review. See LaHaye, supra. This assignment of error has no merit.

DAMAGES

The jury awarded the following damages:

I. VERA JAMES:
   A.  Any fear, fright or mental
       anguish experienced during
       the course of the accident
       itself;                               $ 15,000
                                             --------
   B.  Physical pain and suffering,
       past and future;                      $ 25,000
                                             --------
   C. 

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Cite This Page — Counsel Stack

Bluebook (online)
643 So. 2d 424, 1994 WL 541541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-v-webb-lactapp-1994.