219 So. 3d 1150
La. Ct. App.2017Background
- On May 16, 2011 Darleen (Darlene) Levy was rear‑ended in New Orleans by a truck driven by Jessica Lewis, employed by Steakhouse New Orleans, LLC; plaintiffs sued Lewis, Steakhouse, and insurers Maryland and Progressive.
- Plaintiffs sought substantial lost‑income damages (supported by tax returns showing both earned and passive/unearned income) and past and future medical expenses; liability was resolved for plaintiffs pretrial in their favor.
- Pretrial motions: plaintiffs moved in limine to exclude evidence of Levy’s passive/unearned income; the trial court denied that motion. Progressive’s bad‑faith dismissal was later modified on writ.
- At a January 2016 jury trial, the jury awarded $61,500 (including $14,000 for past medicals) and no future medicals or lost wages; the trial court had granted a directed verdict precluding future medical expense claims.
- The Fourth Circuit majority reversed and remanded for a new trial, concluding cumulative trial errors (admission of passive income evidence, the directed verdict on future medicals, and failure to instruct the jury on recovery of past medicals incurred in good faith) were not harmless. Two judges dissented (one would amend and affirm as amended).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Levy’s passive/unearned income (motion in limine) | Passive income is irrelevant to Levy’s claim of lost wages from practicing law and is prejudicial; Rodriguez prohibits using a party’s wealth to affect damages. | Evidence relevant to loss of earning capacity; tax returns reasonably bear on whether accident affected Levy’s overall ability to earn (not just legal practice); plaintiffs opened the door by submitting returns. | Court: Trial court erred by allowing evidence of passive income when plaintiffs sought only lost income as an attorney; admission was prejudicial because Plaintiffs did not claim loss of passive income. |
| Directed verdict excluding future medical expenses | Sufficient medical testimony (treating physicians) and billing history allowed a reasonable jury to extrapolate future care and costs; directed verdict improperly removed the issue from jury. | Plaintiffs offered no reliable estimate of frequency or cost of future treatment; medical testimony lacked the required degree of certainty to prove future medical costs. | Court: Granting directed verdict on future medicals was erroneous because record contained evidence (treating physician prognosis and billing statements) from which jury could infer future costs; error contributed to need for new trial. |
| Jury instruction re: past medicals incurred in good faith | Jury should have been instructed that past medical expenses incurred in good faith are recoverable even if treatment might be debatable; failure to instruct undermined award. | No obligation to give a specific jury instruction on the jurisprudential principle; plaintiffs did not object at trial on that ground. | Court: Trial court’s failure to advise jury about recovery of past medicals incurred in good faith contributed to an unsupported verdict and compounded other errors. |
| Quantum of past medical expenses (award inconsistency) | Plaintiffs proved past medical bills (stipulated amount ~$44,829); jury’s $14,000 award manifests error. | Defendants contested causation and necessity; expert testimony supported a much smaller award. | Court: Jury manifestly erred or district court erred in jury charge; cumulative errors require retrial. (Dissent would instead amend judgment to award full past medicals and credit insurer’s $5,000 med‑pay.) |
Key Cases Cited
- Rodriguez v. Traylor, 468 So.2d 1186 (La. 1985) (wealth or poverty of a party generally not proper for determining compensatory damages)
- Finnie v. Vallee, 620 So.2d 897 (La. App. 4th Cir. 1993) (distinguishing lost wages from loss of earning capacity)
- Youn v. Mar. Overseas Corp., 623 So.2d 1257 (La. 1993) (future medicals need not be proven with mathematical certainty; court may determine a minimum reasonable future cost)
- Stiles v. K‑Mart Corp., 597 So.2d 1012 (La. 1992) (court may fix a minimum future medical award from record evidence when necessary)
- Duncan v. Kansas City S. Ry. Co., 773 So.2d 670 (La. 2000) (medical testimony required to show future medical expenses are indicated and to set probable cost)