Wackenhut Corp. v. Fortune

87 So. 3d 1083, 2012 WL 1174518, 2012 Miss. App. LEXIS 204
CourtCourt of Appeals of Mississippi
DecidedApril 10, 2012
DocketNo. 2010-CA-00480-COA
StatusPublished
Cited by9 cases

This text of 87 So. 3d 1083 (Wackenhut Corp. v. Fortune) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wackenhut Corp. v. Fortune, 87 So. 3d 1083, 2012 WL 1174518, 2012 Miss. App. LEXIS 204 (Mich. Ct. App. 2012).

Opinion

ROBERTS, J.,

for the Court:

¶ 1. A jury sitting before the Hinds County Circuit Court found Wackenhut Corporation and Rozivito Hoskins 75% at fault for injuries Ernie Fortune sustained at a McDonald’s restaurant. The jury awarded Fortune $1,000,000 in damages. Aggrieved, Wackenhut appeals and raises ten issues. Wackenhut claims the circuit court erred when it: (1) allowed Fortune’s expert witness economist to use the “earnings-capacity approach” to calculate Fortune’s future lost wages; (2) prohibited Wackenhut from presenting evidence regarding Fortune’s alcohol abuse; (3) allowed Fortune to claim he was entitled to damages for a future surgery; (4) allowed Fortune to substitute an expert witness at trial; (5) redacted medical bills after they had been entered into evidence; (6) refused Wackenhut’s proffered jury instruction on contributory negligence; (7) refused Wackenhut’s proffered jury instruction on reasonable force; (8) prohibited Wackenhut from introducing evidence of Fortune’s prior convictions; (9) prohibited Wackenhut from introducing evidence that Fortune was “homeless”; and (10) prohibited Wackenhut from introducing evidence of Fortune’s collateral sources of medical care.

¶ 2. Fortune concedes it was improper for his expert economist to calculate his future lost wages according to the “earnings-capacity approach.” Fortune also concedes the circuit court erred when it refused Wackenhut’s proffered instruction on contributory negligence. Consequently, Fortune agrees we must reverse the circuit court’s judgment and remand this matter for a new trial. However, Fortune claims there is no merit to Wackenhut’s other claims. For the sake of judicial economy, we choose to address Wacken-hut’s remaining issues that are reasonably likely to arise again upon retrial.

¶ 3. After careful consideration, we find the circuit court also erred when it prohibited Wackenhut from introducing evidence of Fortune’s alcohol use to demonstrate the likelihood of Fortune’s decreased life expectancy. We further find that the circuit court erred when it allowed Fortune’s expert witness to testify that Fortune should receive damages for a future surgery when there was no evidence that Fortune met the necessary qualifications for the surgery. Furthermore, we find the circuit court erred when it refused Wack-enhut’s proffered jury instruction on contributory negligence. Accordingly, we reverse the judgment of the circuit court and remand this matter for a new trial consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 4. At approximately 8:30 p.m. on July 27, 2008, fifty-one-year-old Ernie Fortune went into a McDonald’s restaurant in Jackson, Mississippi. Fortune did not want to buy anything. Instead, he intended to use the self-serve drink machine to get a free refill of ice in a McDonald’s cup he had obtained hours earlier that day.

¶ 5. Tracey Luckett, McDonald’s manager on duty at that time, told Fortune McDonald’s policy prohibited him from refilling a cup after he had left the restaurant. Fortune believed he should be allowed to refill a cup he had acquired hours earlier that day. Although there are different versions of the tone and character of the discussion between Fortune and Luckett, it is undisputed that Fortune became frus[1087]*1087trated and left the restaurant without refilling his cup or purchasing anything.

¶ 6. A short time later, Fortune went back inside the restaurant and tossed one dollar to Luckett. Fortune explained he did not want to buy anything for himself. Fortune told Luckett the dollar was for the next customer who wanted a cup of ice. According to Luckett, Fortune was cursing, disruptive, agitated, and confrontational. Subsequent blood testing hours later revealed that Fortune’s blood-alcohol level was .276.

¶ 7. My Joy, Inc., the owner of the McDonald’s franchise at issue, had entered into a contract for security services with Wackenhut Corporation. At that time, Hoskins was the Wackenhut security officer on duty at McDonald’s. The record contains contrasting versions of events regarding what happened next. However, it is undisputed that Hoskins shoved Fortune outside, where Fortune fell to the ground. Hoskins claimed he had acted in self-defense when he pushed Fortune outside because Fortune had a knife. Fortune denied having a knife, but Detective Reginald Cooper of the Jackson Police Department later testified that according to a police report, a knife was recovered from the scene.1

¶ 8. Fortune claimed Hoskins stomped and kicked him multiple times. But according to Hoskins, he merely stepped over Fortune, who was lying on the ground. It is undisputed that Fortune broke the humerus bone in his right arm at some point during the altercation. Fortune was hospitalized. He required surgery that involved stabilizing his broken arm with an “intramedullary nail.”

¶ 9. Fortune sued Wackenhut, Hoskins, My Joy, Inc., McDonald’s, and Luckett. On November 30, 2009, the parties went to trial. The jury found Wackenhut and Hos-kins 75% liable for Fortune’s injuries and awarded Fortune $600,000 for pain and suffering, $194,000 for lost past and future earnings, $106,000 for past and future medical expenses, and $100,000 for Fortune’s “physical impairment and/or functional limitations” for a total award of $1,000,000. After unsuccessful post-trial motions for a judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial or remittitur, Wackenhut and Hoskins appeal.2

ANALYSIS

I. EARNINGS-CAPACITY APPROACH

¶ 10. Wackenhut3 argues that this case should be reversed and remanded for a new trial because Fortune’s expert witness, Dr. Glenda Glover, used the earnings-capacity approach to calculate Fortune’s loss of future earnings. Fortune concedes we should reverse the circuit court’s judgment and remand this case for a new trial pursuant to the Mississippi Supreme Court’s decision in Rebelwood Apartments RP, LP v. English, 48 So.3d 483 (Miss.2010). In Rebelwood, the su[1088]*1088preme court held that the same expert, Dr. Glover, should not have been permitted to utilize the earnings-capacity approach when calculating a plaintiffs loss of future earnings because Dr. Glover’s testimony was not based on sufficient facts or data. Id. at 496 (¶ 58).

¶ 11. Dr. Glover used the same methodology in this case as she used in Rebel-wood. As Fortune concedes, this case must be reversed and remanded for a new trial. Accordingly, the judgment of the circuit court is reversed and this matter is remanded for a new trial, in which neither Dr. Glover nor any other expert witness may calculate Fortune’s loss of future earnings based on the earnings-capacity approach, which is not founded on sufficient facts or data. For the sake of judicial economy, we address those issues that may become relevant on remand.

II. FORTUNE’S ALCOHOL ABUSE

¶ 12. Fortune filed a motion in limine to exclude “irrelevant information in medical records.” To be precise, Fortune wanted to exclude “medical records that reference ... Fortune’s past alcohol use or having alcohol in his system at the time of the incident.” Wackenhut argued that evidence of Fortune’s past alcohol abuse was relevant because Fortune sought lost wages and implicitly claimed he had a preexisting wage earning capacity that was interrupted when he was injured at McDonald’s.

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87 So. 3d 1083, 2012 WL 1174518, 2012 Miss. App. LEXIS 204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wackenhut-corp-v-fortune-missctapp-2012.