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An Issue Laden Opinion

On Friday, a five judge First Circuit panel issued an opinion discussing evidence, Daubert, new trials, JNOV motions and general damages. See, Spann v. Gerry Lane Enterprises, Inc., 2016-0793 (La.App. 1 Cir. 08/24/18). Judge Whipple wrote the majority opinion and Judge McDonald dissented on evidentiary grounds. The majority included Judges Higginbotham, Theriot and Chutz.

Facts

Patricia Spann lost control of her Chevrolet Cobalt on S. Acadian Thruway in Baton Rouge and collided with "several vehicles driving in the opposite lanes." She fractured multiple facial bones, two thoracic vertebrae, one lumbar vertebra, a wrist and elbow. Ms. Spann sued Gerry Lane Enterprises for alleged defective performance of power steering system recall repairs.

Judge Robert Downing, sitting on the 19th JDC bench pro tempore, dismissed Gerry Lane on summary judgment. Judge Donald Johnson granted a new trial motion supported with subsequently obtained expert evidence.

Later, Judge Johnson denied a re-urged defense summary judgment motion and a jury assigned 70% fault to Ms. Spann and 30% fault to Gerry Lane at trial. Total damages awarded by the jury prior to comparative fault reduction included $122,338.80 past medical expenses, $25,000 past loss of earnings and $25,000 "for loss of physical abilities, disfigurement, and impairment." The jury declined to award damages for pain and suffering, mental anguish, permanent disability and loss of enjoyment of life.

Judge Johnson granted a plaintiff JNOV motion and increased general damages by $700,000, for a total of $725,000.

The First Circuit affirmed Judge Johnson's pre-trial and evidentiary rulings, but reduced general damages to $125,000, "the highest reasonable amount that can be awarded." Judge McDonald, dissenting, would have reversed Judge Johnson's grant of a new trial and reinstated the summary judgment entered by Judge Downing in favor of Gerry Lane.

Evidence and Daubert

An initial joint vehicle inspection was completed by defense and plaintiff experts. After Gerry Lane was dismissed on summary judgment, plaintiff's mechanical engineering expert, Edward Carrick, conducted two additional inspections and testing of Ms. Spann's vehicle without defense participation. These inspections occurred, in the words of Judge McDonald, "in clear violation of [a] February 4, 2015 consent judgment, which prohibited Ms. Spann, and anyone on her behalf, from altering her car, performing tests without prior court approval, removing parts from the car, and conducting destructive tests."

The majority found no merit in a defense Daubert argument which it described as attacking the expert's credibility, but not methodology. Further, regarding civil contempt as grounds for reversal, although the plaintiff's second and third expert inspections in contravention of the consent order "troubl[ed] the [trial] court," admitting the evidence was not an abuse of discretion.

New Trial

Plaintiff presented the trial court with results of the additional expert analysis in support of the motion for new trial. She argued the evidence could not have been obtained prior to the hearing. The First Circuit "pretermitted" discussing prior availability of the evidence, a peremptory ground for new trial under La. C.C.P. 1972(2). Instead, the majority concluded that Judge Downing's original judgment summarily dismissing the defendant was "contrary to the law and evidence," and appropriate for new trial under La. C.C.P. art. 1972(1).

JNOV, Inconsistent Verdict and Quantum

The First Circuit agreed with Judge Johnson and the plaintiff that the jury's verdict awarding $122,338.80 past medical expenses, but nothing for pain, suffering and mental anguish was inconsistent and an abuse of discretion. In an effort to salvage the result, the defendant argued that the evaluation should consider general damages as a whole. See, Mason v. Hilton, 2012 CA 2073 (La.App. 1 Cir. 11/07/13). For that reason, argued the defense, the jury's $25,000 award, ostensibly for impairment and disfigurement, was within the discretionary range. On the contrary, the First Circuit review led to the conclusion "that reasonable and impartial jurors in this case could not differ as to the fact that an award of $25,000.00 for general damages is abusively low, especially in light of the type of physical injuries sustained by Ms. Spann, the duration of her hospital stay, and the continued assistance that she needed at home after being discharged from the hospital." Judge Johnson's decision to grant plaintiff's JNOV was affirmed.

On quantum, the defense appeal found substantial relief. Here, the majority focused primarily on plaintiff's successful, albeit protracted, recovery from her injuries. In conclusion, the opinion states:

In light of the absence of medical testimony regarding any future medical care or procedures that Ms. Spann may need and Ms. Spann's own testimony regarding the time frame in which she became generally able to resume her normal activities, we find that $125,000.00 is the highest reasonable amount that can be awarded to Ms. Spann for general damages. Accordingly, as the jury previously awarded Ms. Spann $25,000.00 for general damages and the trial court maintained this award, we find that the trial court should have awarded Ms. Spann an additional $100,000.00 for general damages, not an additional $700,000.00. Accordingly, while we find that the trial court properly granted the motion for JNOV, we amend the amount of general damages awarded by the trial court in the JNOV.

Posted: Aug. 26, 2018