STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
08-116
PHILIP BROUSSARD AND NICOLE BROUSSARD, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN, WILLIAM BROUSSARD AND HAYDEN BROUSSARD
VERSUS
LAFAYETTE INSURANCE COMPANY, COLBY MENARD, DONNIE DEROUEN ELECTRICAL SERVICE, INC., AND ALLSTATE INSURANCE COMPANY
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE, NO. 20060333, DIV. K HONORABLE PATRICK L. MICHOT, DISTRICT JUDGE
J. DAVID PAINTER JUDGE
Court composed of Jimmie C. Peters, Michael G. Sullivan, and J. David Painter.
AFFIRMED.
Joseph F. Garr, Jr. Jason M. Welborn J.P. D’Albor Attorneys at Law P.O. Drawer 2069 Lafayette, Louisiana 70502 Counsel for Plaintiff-Appellee: Philip Broussard
Richard J. Petre, Jr. Onebane Law Firm P.O. Box 3507 Lafayette, LA 70502-3507 Counsel for Defendants-Appellants: Lafayette Insurance Company, Colby Menard, and Donnie Derouen Electrical Service, Inc. PAINTER, Judge.
Defendants, Lafayette Insurance Company, Colby Menard, and Donnie
Derouen Electrical Service, Inc., appeal the trial court’s ruling admitting the
testimony of Plaintiffs’ vocational expert, Glenn Hebert, and Plaintiffs’ expert
economist, Dr. Douglas Womack, over their objection that there was no evidentiary
basis for the opinions of Hebert and Dr. Womack. Defendants also appeal the jury’s
award of $165,000.00 to Plaintiff, Philip Broussard, for loss of future earning
capacity. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, Philip Broussard, was involved in a motor vehicle accident on April
4, 2005, when the truck he was driving was hit by a Donnie Derouen Electrical
Service, Inc. company truck driven by Colby Menard. Plaintiffs initially filed suit
against Menard; his employer, Derouen; Lafayette Insurance Company, Derouen’s
liability insurer; and Allstate Insurance Company, Broussard’s own UM insurer. Loss
of consortium claims were filed on behalf of Broussard’s wife and two minor
children. Prior to trial, the consortium claims and the UM claim were dismissed. The
facts of the accident are not at issue because, at trial, Defendants stipulated that the
accident was entirely Menard’s fault.
Shortly after the accident, Plaintiff went to the emergency room with
complaints of neck and shoulder pain. He was treated conservatively by a
neurologist, Dr. Leo DeAlvare, from April through July 2005. He also attended
physical therapy during this time. On October 3, 2005, Plaintiff underwent a cervical
MRI which showed a disc herniation at the C5-6 level. He was referred to a
neurosurgeon, Dr. Stephen Goldware, who ultimately performed an anterior cervical
diskectomy and fusion at the C5-6 level on September 22, 2006.
1 Plaintiff, a self-employed residential real estate appraiser, retained Glenn
Hebert as an expert in vocational rehabilitation. Hebert saw Plaintiff on November
7, 2006, seven weeks after Plaintiff underwent surgery. Hebert issued a report on
December 5, 2006. In that report, Hebert opined that Plaintiff’s earning capacity,
given his disability, would be $39,790.00 per year. Based on that figure, Dr. Womack
issued a report that projected Plaintiff’s future earning capacity loss would range from
$462,595.00 to $576,949.00.
When Dr. Goldware was deposed for trial purposes, he testified that Plaintiff
had a twenty-five percent whole body anatomical impairment. However, Dr.
Goldware was of the opinion that there was no reason that Plaintiff could not
continue to work as a real estate appraiser.
Defendants filed a motion seeking to preclude the introduction of expert
evidence that Plaintiff had sustained any future earning capacity loss based on Dr.
Goldware’s trial deposition testimony. In sum, Defendants’ arguments were that
Hebert’s opinions were based on incorrect assumptions about Plaintiff’s ability to
return to work and, therefore, unreliable and that Dr. Womack’s opinions were based
on Hebert’s unreliable opinions. When this motion came for hearing, Plaintiffs
produced new reports from both Hebert and Dr. Womack. The trial judge found that
these new opinions were not timely given and were, therefore, inadmissible.
However, the trial judge ruled that Hebert and Dr. Womack could testify based on
their initial reports. At trial, Defendants renewed their objections of the testimonies
of Hebert and Dr. Womack. The trial court again denied the motion, and the matter
proceeded to trial. The jury ultimately awarded $165,000.00 in future loss of earning
capacity to Plaintiff. On appeal, Defendants argue that the trial court erred in
2 admitting the testimonies of Hebert and Dr. Womack and that the jury erred in its
award of damages for loss of future earning capacity.
DISCUSSION
We are mindful that “[t]he trial court is allowed much discretion in determining
whether to allow a witness to testify as an expert under La.Code Evid. art. 702” and
that “[i]ts judgment will remain undisturbed unless clearly erroneous.” Hall v.
Brookshire Bros., Ltd., 01-1506, p. 19 (La.App. 3 Cir. 8/21/02), 831 So.2d 1010,
1024, writs granted, 02-2404, 02-2421 (La.11/27/02), 831 So.2d 285, and decision
affirmed, 02-2404 (La.6/27/03), 848 So.2d 559. Furthermore, in Rowe v. State Farm
Mutual Automobile Insurance Co., 95-669, p. 17 (La.App. 3 Cir. 3/6/96), 670 So.2d
718, 728-29, writ denied, 96-0824 (La.5/17/96), 673 So.2d 611, this court stated:
As a general rule, the factual basis of an expert’s opinion goes to the credibility of the testimony, not its admissibility, and it is up to the opposing party to examine the factual basis of the opinion in cross-examination. Loudermill v. Dow Chemical Co., 863 F.2d 566 (8th Cir.1988). However, if an expert opinion is so fundamentally unsupported that it can offer no assistance to the jury, then the testimony should not be admitted at all. Id., citing Viterbo v. Dow Chemical Co., 826 F.2d 420 (5th Cir.1987).
La.Code Evid. art. 702, like its Federal counterpart, states that expert testimony must be based on “scientific, technical, or other specialized knowledge.” Even then, such “testimony must rise to a threshold level of reliability in order to be admissible.” State v. Foret, 93-0246 (La. 11/30/93), 628 So.2d 1116, 1123 (adopting Daubert ). To be reliable, such testimony requires more than “subjective belief or unsupported speculation,” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, ----, 113 S.Ct. 2786, 2795, 125 L.Ed.2d 469 (1993)[.]
In the present case, Defendants have not challenged the scientific basis or
expertise of either Hebert or Dr. Womack. Based on the foregoing principles of law,
we find that the trial court properly admitted the testimony of both Hebert and Dr.
Womack.
3 Moreover, we find that the jury acted within its discretion in awarding
$165,000.00 for Plaintiff's loss of future earning capacity. “Awards for loss of future
income are inherently speculative, and are intrinsically insusceptible of being
calculated with mathematical certainty. Thus, the courts must exercise sound judicial
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
08-116
PHILIP BROUSSARD AND NICOLE BROUSSARD, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN, WILLIAM BROUSSARD AND HAYDEN BROUSSARD
VERSUS
LAFAYETTE INSURANCE COMPANY, COLBY MENARD, DONNIE DEROUEN ELECTRICAL SERVICE, INC., AND ALLSTATE INSURANCE COMPANY
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT, PARISH OF LAFAYETTE, NO. 20060333, DIV. K HONORABLE PATRICK L. MICHOT, DISTRICT JUDGE
J. DAVID PAINTER JUDGE
Court composed of Jimmie C. Peters, Michael G. Sullivan, and J. David Painter.
AFFIRMED.
Joseph F. Garr, Jr. Jason M. Welborn J.P. D’Albor Attorneys at Law P.O. Drawer 2069 Lafayette, Louisiana 70502 Counsel for Plaintiff-Appellee: Philip Broussard
Richard J. Petre, Jr. Onebane Law Firm P.O. Box 3507 Lafayette, LA 70502-3507 Counsel for Defendants-Appellants: Lafayette Insurance Company, Colby Menard, and Donnie Derouen Electrical Service, Inc. PAINTER, Judge.
Defendants, Lafayette Insurance Company, Colby Menard, and Donnie
Derouen Electrical Service, Inc., appeal the trial court’s ruling admitting the
testimony of Plaintiffs’ vocational expert, Glenn Hebert, and Plaintiffs’ expert
economist, Dr. Douglas Womack, over their objection that there was no evidentiary
basis for the opinions of Hebert and Dr. Womack. Defendants also appeal the jury’s
award of $165,000.00 to Plaintiff, Philip Broussard, for loss of future earning
capacity. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, Philip Broussard, was involved in a motor vehicle accident on April
4, 2005, when the truck he was driving was hit by a Donnie Derouen Electrical
Service, Inc. company truck driven by Colby Menard. Plaintiffs initially filed suit
against Menard; his employer, Derouen; Lafayette Insurance Company, Derouen’s
liability insurer; and Allstate Insurance Company, Broussard’s own UM insurer. Loss
of consortium claims were filed on behalf of Broussard’s wife and two minor
children. Prior to trial, the consortium claims and the UM claim were dismissed. The
facts of the accident are not at issue because, at trial, Defendants stipulated that the
accident was entirely Menard’s fault.
Shortly after the accident, Plaintiff went to the emergency room with
complaints of neck and shoulder pain. He was treated conservatively by a
neurologist, Dr. Leo DeAlvare, from April through July 2005. He also attended
physical therapy during this time. On October 3, 2005, Plaintiff underwent a cervical
MRI which showed a disc herniation at the C5-6 level. He was referred to a
neurosurgeon, Dr. Stephen Goldware, who ultimately performed an anterior cervical
diskectomy and fusion at the C5-6 level on September 22, 2006.
1 Plaintiff, a self-employed residential real estate appraiser, retained Glenn
Hebert as an expert in vocational rehabilitation. Hebert saw Plaintiff on November
7, 2006, seven weeks after Plaintiff underwent surgery. Hebert issued a report on
December 5, 2006. In that report, Hebert opined that Plaintiff’s earning capacity,
given his disability, would be $39,790.00 per year. Based on that figure, Dr. Womack
issued a report that projected Plaintiff’s future earning capacity loss would range from
$462,595.00 to $576,949.00.
When Dr. Goldware was deposed for trial purposes, he testified that Plaintiff
had a twenty-five percent whole body anatomical impairment. However, Dr.
Goldware was of the opinion that there was no reason that Plaintiff could not
continue to work as a real estate appraiser.
Defendants filed a motion seeking to preclude the introduction of expert
evidence that Plaintiff had sustained any future earning capacity loss based on Dr.
Goldware’s trial deposition testimony. In sum, Defendants’ arguments were that
Hebert’s opinions were based on incorrect assumptions about Plaintiff’s ability to
return to work and, therefore, unreliable and that Dr. Womack’s opinions were based
on Hebert’s unreliable opinions. When this motion came for hearing, Plaintiffs
produced new reports from both Hebert and Dr. Womack. The trial judge found that
these new opinions were not timely given and were, therefore, inadmissible.
However, the trial judge ruled that Hebert and Dr. Womack could testify based on
their initial reports. At trial, Defendants renewed their objections of the testimonies
of Hebert and Dr. Womack. The trial court again denied the motion, and the matter
proceeded to trial. The jury ultimately awarded $165,000.00 in future loss of earning
capacity to Plaintiff. On appeal, Defendants argue that the trial court erred in
2 admitting the testimonies of Hebert and Dr. Womack and that the jury erred in its
award of damages for loss of future earning capacity.
DISCUSSION
We are mindful that “[t]he trial court is allowed much discretion in determining
whether to allow a witness to testify as an expert under La.Code Evid. art. 702” and
that “[i]ts judgment will remain undisturbed unless clearly erroneous.” Hall v.
Brookshire Bros., Ltd., 01-1506, p. 19 (La.App. 3 Cir. 8/21/02), 831 So.2d 1010,
1024, writs granted, 02-2404, 02-2421 (La.11/27/02), 831 So.2d 285, and decision
affirmed, 02-2404 (La.6/27/03), 848 So.2d 559. Furthermore, in Rowe v. State Farm
Mutual Automobile Insurance Co., 95-669, p. 17 (La.App. 3 Cir. 3/6/96), 670 So.2d
718, 728-29, writ denied, 96-0824 (La.5/17/96), 673 So.2d 611, this court stated:
As a general rule, the factual basis of an expert’s opinion goes to the credibility of the testimony, not its admissibility, and it is up to the opposing party to examine the factual basis of the opinion in cross-examination. Loudermill v. Dow Chemical Co., 863 F.2d 566 (8th Cir.1988). However, if an expert opinion is so fundamentally unsupported that it can offer no assistance to the jury, then the testimony should not be admitted at all. Id., citing Viterbo v. Dow Chemical Co., 826 F.2d 420 (5th Cir.1987).
La.Code Evid. art. 702, like its Federal counterpart, states that expert testimony must be based on “scientific, technical, or other specialized knowledge.” Even then, such “testimony must rise to a threshold level of reliability in order to be admissible.” State v. Foret, 93-0246 (La. 11/30/93), 628 So.2d 1116, 1123 (adopting Daubert ). To be reliable, such testimony requires more than “subjective belief or unsupported speculation,” Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, ----, 113 S.Ct. 2786, 2795, 125 L.Ed.2d 469 (1993)[.]
In the present case, Defendants have not challenged the scientific basis or
expertise of either Hebert or Dr. Womack. Based on the foregoing principles of law,
we find that the trial court properly admitted the testimony of both Hebert and Dr.
Womack.
3 Moreover, we find that the jury acted within its discretion in awarding
$165,000.00 for Plaintiff's loss of future earning capacity. “Awards for loss of future
income are inherently speculative, and are intrinsically insusceptible of being
calculated with mathematical certainty. Thus, the courts must exercise sound judicial
discretion in determining these awards, and render awards which are consistent with
the record and which work an injustice on neither party.” Morgan v. Willis-Knighton
Med. Ctr., 456 So.2d 650, 658 (La.App. 2 Cir. 1984). The record indicates that
Plaintiff’s injury left him unable to return to work at full capacity. Although he was
released by his physician to return to work as a real estate appraiser, he was left with
certain physical limitations. For example, he was to avoid heavy lifting. Dr.
Goldware recommended that Plaintiff should start lifting twenty-five pounds and
work his way up to fifty pounds, but said that he would be limited to fifty pounds for
the rest of his life. He was also restricted from doing any overhead work for six
months after the surgery. Dr. Goldware also recommended no prolonged or repetitive
stooping and bending. In light of these facts, it is not unreasonably inconsistent for
the jury to conclude that Plaintiff would suffer some loss in future earning capacity.
Accordingly, we affirm the jury’s award of $165,000.00 to Plaintiff for loss of future
earning capacity.
DECREE
For these reasons, we affirm the trial court’s ruling admitting the testimonies
of Glenn Hebert and Dr. Douglas Womack. Furthermore, we affirm the jury’s award
of $165,000.00 for loss of future earning capacity to Plaintiff, Philip Broussard.
Costs of this appeal are assessed to Defendants-Appellants, Lafayette Insurance
Company, Colby Menard, and Donnie Derouen Electrical Service, Inc.