Parker v. Frels

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 31, 2002
• Docket: 01-31200
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-31200 Summary Calender

FRANK PARKER,

Plaintiff-Appellee,

versus

JAMES S. FRELS; ET. AL.,

Defendants,

NATIONAL CASUALTY COMPANY; GADDY’S AMBULANCE SERVICE, INC.,

Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana (00-CV-599) _________________________________________________________________ May 30, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

In this appeal from a $189,000 jury verdict for Plaintiff,

Defendants seek a new trial, contending: the district court erred

in allowing both sides’ economic experts to testify as to

Plaintiff’s future loss of earnings; and the jury abused its

discretion in awarding damages.

Frank Parker was injured when his automobile was struck from

behind by an employee of Gaddy’s Ambulance Service, Inc., insured

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. by National Casualty Company. In district court, Defendants:

failed to move for judgment as a matter of law pursuant to Rule 50;

made no motion for new trial pursuant to Rule 59; and presented no

other post-judgment motions, other than to stay the judgment

pending appeal.

Defendants contend the district court erred in allowing

Plaintiff’s expert to testify as to future loss of income, based on

the assumptions that Parker will never return to any kind of

gainful employment and that he will work part-time at minimum wage.

Defendants assert the testimony did not “assist the trier of fact”

because the uncontroverted testimony from Defendants’ vocational

expert established Parker would be able to find gainful employment.

Needless to say, it was not manifest error for the district court

to allow the experts to testify as to what Parker’s lost wages

would be based on assumptions concerning his ability to work. See

Love v. Nat’l Med. Enters., 230 F.3d 765, 775 (5th Cir. 2000)

(evidentiary rulings reviewed for manifest error); Munoz v. Orr,

200 F.3d 291, 300 (5th Cir.) (trial court given broad discretion on

evidentiary rulings concerning expert testimony), cert. denied, 531

U.S. 812 (2000).

The jury returned a verdict of $189,000 for Parker, after it

assessed his degree of fault as 20%. For the first time on appeal,

Defendants challenge the verdict, contending the jury abused its

discretion. Even assuming Defendants did not waive this issue by

failing to raise it in district court in a motion for new trial, we

afford a jury a great deal of discretion when computing damages and

2 only reverse when the verdict is contrary to right reason or shocks

the judicial conscience. See Franks v. Assoc. Air Center, Inc.,

663 F.2d 583, 590 n.3 (5th Cir. 1981); see also Boyle v. Poole

Offshore Co., a Div. of Enserch Corp., 893 F.2d 713, 718 (5th Cir.

1990) (“reviewable only for abuse of discretion, and only where the

verdict as to the damages is unsupported by the record”).

At the time of the accident in 1998, Parker was approximately

50 years old. Prior to the accident, he was in good health,

working as a laborer all his life. His doctors testified that he

had a large tear of the rotator cuff of his shoulder (surgery was

recommended) and a large herniation at the L3-4 level, preventing

him from bending, stooping, or lifting heavy objects for the rest

of his life. Parker testified he could not raise his arms or mow

his yard without pain.

Parker’s economic expert testified Parker’s past lost income

was approximately $40,000 and his future lost income would be

between approximately $66,000 (if he found part-time work) and

approximately $118,000 (if he could not find gainful employment).

Parker’s medical expenses were over $9,000, and his future medical

expenses (shoulder surgery) could be between $15,000 and $40,000,

depending on the complexity of the surgery.

In short, Defendants do not satisfy the high standard for

obtaining a new trial because of the size of the verdict. See,

e.g., Perez v. State ex rel. Crescent City Connection, Div. of

Dept. of Transp. and Dev., 753 So.2d 913, 915-16 (La. Ct. App.

2000) (affirming $150,000 general damages award for bulging disks

3 when no surgery recommended); Goodwyne v. People’s Moss Gin, Inc.,

694 So.2d 1101 (La. Ct. App. 1997) (increasing jury award of

$115,000 in lost earnings to over $650,000 for a herniated disk

preventing a fifty-one-year old man from doing manual labor);

Carter v. Harrison, 684 So.2d 546, 549-50 (La. Ct. App. 1996)

(affirming jury’s general damages award of $150,000 for cervical

and lumbar injuries).

AFFIRMED