Lead Opinion
|4Pеfendants appeal a judgment rendered in favor of the plaintiffs after an eight-day jury trial in which the jury found a general contractor liable to its statutory employee for an “intentional act.” The jury also found the engineering companies responsible for guy wiring and bridge design liable under a negligence theory. For the reasons assigned, we reverse the jury“verdict in part, amend in part, affirm in part as amended, and render judgment.
FACTS AND PROCEDURAL HISTORY
This is a wrongful death case arising out of the collapse of a steel reinforcing bar (rebar) cage built during a 2009 bridge-widening project on the Huey P. Long Bridge near the Westbank of the Mississippi River in Bridge City, Louisiana. Two men who were working on the rebar cage, Ulvaldo Soto Martinez and Martin Reyes, died as a result of the collapse.
The Louisiana Department of Transportation and Development (DOTD) contracted with the design engineering firm of Modjeski & Masters, Inc. (M & M) to design the bridge-widening project. DOTD contracted with a joint venture of Kiewit Louisiana Co., Massman Construction Co., and Traylor Bros., Inc., (KMTC-JV), a new cоmpany that was jointly formed for purposes of the project, |Bto serve as the general contractor on the project. Kiewit Engineering Co. (KECO) was hired by KMTC-JV to design guy-wiring plans to be used by KMTC-JV in connection with the placement of the steel rebar cages. The purpose of the guy wiring plan was to protect the rebar cage
On June 12, 2009, KMTC-JV employees used two cranes to raise the pre-construct-ed 62,888-pound rebar cage that had been built by J.L. Steel employees in a horizontal position on the ground. One crane lifted the top portion of the 55 to 60-foot tall cage while the other was used, temporarily, to hold the bottom of the cage steady. KMTC-JV’s crane operator, Jeff Mayon, operated the lift and placed the rebar cage on top of the column footing. J.L. Steel’s workers, Martinez and Reyes, then tied the rebar extending from the column footing on which they were standing to the rebar cage that had just been set in place. KMTC-JV employees tied guy wires from various levels of the rebar cage to 9,600-pound concrete deadman blocks on the ground. After the tie-in was complete, Martinez and Reyes were instructed to unhook the crane from the top of the rebar cage, Within thirty minutes of the removal of the crane, the rebar cage collapsed and the two workers fell approximately 60 feet to their deaths.
On September 2, 2009, suit was filed by Martinez’s wife, Maria Cruz Maldonado, individually, as representative of the decedent’s estate, and on behalf of their two minor children, Justin and Usvaldo Maldonado, and by the decedent’s brother, Gilberto Soto Martinez (hereafter referred to as plaintiffs). Made defendants were KMTC-JV, KECO, their insurer Zurich American [ insurance Company (Zurich), M & M and others.
After trial, the jury rendered a verdict against KMTC-JV for intentional acts. It also concluded that KECO and M & M were negligent in causing the accident. The jury allocated fault as follows: 80% to KMTC-JV, 10% to KECO, and 10% to M & M. The jury awarded a total of $13 million .to plaintiffs. The trial court entered a judgment in accordance with the jury verdict on June 1, 2012. KMTC-JV, KECO, Zurich
ASSIGNMENTS OF ERROR
Defendants KMTC-JV and KECO aver that the trial court legally erred in admit
Defendant M & M avers that the trial court committed legal error in allowing plaintiffs’ expert to give opinion testimony on the interpretation of M & M’s contract with DOTD; prohibiting M & M from meaningful cross-examination of plaintiffs’ expert on voir dire regarding the local standard of care applicable to M & M’s performance; and refusing to allow M & M’s expert to testify as a professional engineer because, in retired status, he did not maintain his license. M & M further avers that the jury erred in finding M & M at fault and in awarding Martinez’s brother mental anguish damages without evidence to support the claim and in awarding him excessive damages. M & M also contends that the jury erred in awarding excessive damages to Martinez’s surviving wife and two minor sons and in awarding excessive general damages for suffering by Martinez before his death.
STANDARD OF REVIEW
The resolution of legal issues may involve questions of fact and questions of law. Wingfield v. State, ex rel. Dept. of Transp. and Development, 2001-2668, 2001-2669 (La.App. 1st Cir.11/8/02),
When the jury makes a factual finding based on admissible evidence, even though a different finding would have been reached by this court, that finding will not be reversed unless it is clearly wrong. Wingfield
A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Evans v. Lungrin, 97-0541, 97-0577 (La.2/6/98),
LAW AND ANALYSIS
One of the central questions presented in this case is whether the conduct of the general contractor/statutory employer, KMTC-JV, rises to the level of an intentional act, thus providing an exception to the rule that the Louisiana Workers’ Compensation Act (Act) is the employee’s exclusive remedy for a [ flwork-related injury or death caused by his employer or a coworker. Louisiana Revised Statute 23:1032(B) provides for the intentional act exception, as follows;
Nothing in this Chapter shall affect the liability of the employer ..., civil or criminal, resulting from an intentional act.
Our courts frequently cite the legislative history of this Act, amended in 1976, to illuminate the fact that the legislature intended to keep the exception narrow. As stated by various commentators, “[t]he only reasonable conclusion to be drawn from the legislative process is that both houses of the legislature rejected attempts to make the exception any broader than ‘intentional’ acts of the employer, thereby giving the exception a narrow scope, limited to conduct which is truly intentional.” Malone & Johnson, Louisiana Civil Law Treatise, Volume H, Workers’ Compensation Law & Practice, § 365, p. 206 (3rd edition 1994). Another commentator notes that where the conduct goes beyond aggravated negligence and includes an employer who knowingly permits a hazardous work condition to exist or knowingly orders a claimant to perform an extremely dangerous job or willfully fails to furnish a safe place to work, this still falls short of the kind of intention to injure that rises to the level of intentional act. Larson, 2A Workmens’ Compensation Law, § 68.13 (1989). See Reeves v. Structural Preservation Systems, 98-1795 (La.3/12/99),
In Bazley v. Tortorich,
ImSince the intentional act exception to the Act was passed in 1976, many cases, have interpreted the language. The jurisprudence reveals a solid respect for the legislature’s policy decision and has narrowly interpreted the exception. Williams v. Gervais F. Favrot Co., Inc.,
In Reeves,
In human experience, we know that specific consequences are substantially certain to follow some acts. If the actor throws a bomb into an office occupied by two persons, but swears that he only “intended” to hurt one of them, we must conclude that he is nonetheless guilty of an intentional tort as to the other, since he knows to a virtual certainty that harmful consequences will follow his conduct, regardless of his subjective desire.
Reeves,
The Reeves court further noted that other workers had manually moved the pot on several occasions, and no one had been injured before. Id. at 213. The supervisor testified that he believed that the employee could move the pot without incident. Id. The court determined that the jury’s conclusion that the employer’s conduct constituted an intentional act was nor reasonable in light of the record reviewed in its entirety. Id.
The Reeves decision noted that substantially certain to follow requires more than a reasonable probability that an injury will occur and certain is defined as inevitable or incapable of failing. Id. See also Danos v. Boh Bros. Const. Co., LLC, 2013-2605 (La.2/7/14),
In Reeves,
KMTC-JV’S LIABILITY
Before we analyze the statutory employer’s conduct in this case, we must first examine some evidentiary rulings of the trial court and the pertinent law.
A.) Subsequent Remedial Measures—
Louisiana Code of Evidence article 407 provides:
In a civil case, when, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This | ^Article does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, authority, knowledge, control, or feasibility of precautionary measures, or for attacking credibility.
In Givens v. De Soto Bldg. Co.,
[T]he great weight of authority is that evidence of changes or repairs made subsequent to the injury, or as to рrecautions taken subsequently to prevent recurrence of injury, is not admissible as showing negligence or as. amounting to an admission of negligence. The reason for the rule is that the effect of declaring such evidence competent would be to inform a defendant that, if he makes changes or repairs, he does it under a penalty; for, if the evidence is competent, it operates as a confession that he was guilty of prior wrong. True policy and sound reason require that men should be encouraged to improve, or repair, and not be deterred from it by the fear that if they do so their acts will be construed into an admission that they had been wrongdoers. A rule, which so operates as to deter men from profiting by experience and availing themselves of new information, has nothing to commend it, for it is neither expedient nor just.
In Toups v. Sears, Roebuck and Co., Inc.,
In general, remedial measures taken after an incident of negligent conduct are not admissible in evidence because such evidence would discourage people from taking steps to prevent future harm.
In Northern Assur. Co. v. Louisiana Power & Light Co.,
Initially, plaintiffs aver that KMTC-JV and KECO waived their right to appeal prejudicial legal error by failing to object at trial when the evidence was offered. Defendants KMTC-JV and KECO filed motions in limine on several evidentiary issues prior to trial. Thus, we must address whether filing motions in limine in this case preserved these defendants’ claims of error for appeal.
(1) Objections and Motions in Limine—
The trial court has great discretion in its consideration of evidentiary matters such as motions in limine. Heller v. Nobel Ins., Group, 2000-0261 (La.2/2/00),
Formal exceptions to rulings or orders of the court are unnecessary. For all purposes it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.
Louisiana Code of Evidence article 103 provides, in pertinent part:
A. Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Ruling admitting evidence. When the ruling is one admitting evidence, a timely objection or motion to admonish the jury to limit or disregard appears of record, stating the specific ground of objection[.]
In Whitehead v. Kansas City Southern Ry. Co., 99-896 (La.App. 3d Cir.12/22/99),
Opposing counsel may object to the introduction of evidence prior to trial by filing a motion in limine. A party need not make a formal objection at the time a trial court rules on the admissibility of the evidеnce, but need only make known the action he desires of the court and his grounds therefor. La.Code Civ. P. art. 1635. After ruling evidence inadmissible, the trial court shall permit the party seeking its introduction to proffer the evidence or make a statement as |1Bto the nature of the evidence. La Code Civ, P. art. 1636. The trial court’s rulings on the admissibility of evidence are reviewable on appeal without the necessity of further formality.
In Joseph v. Williams, 2012-0675 (La.App. 4th Cir 11/14/12),
Insofar as the lack of a contemporaneous objection, the Louisiana Code of Evidence (La.C.E. art. 103), unlike the Federal Rules of Evidence, is silent on whether a party is required to renew an evidentiary objection on which a definite ruling is obtained pre-trial by motion in limine in order to preserve that claim for. appeal The federal rules of evidence expressly provide that “[o]nce the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.” Federal Rules of Evidence Rule 103(b), ... [T]his provision, which was added to the federal rule in 2000, eliminates the procedurаl trap asserted here because it “apparently eliminates the need for a party to make continuous objections, or to make an objection ‘general’ to a line of questioning. Frank L. Maraist, 19 Louisiana Civil Law Treatise, Evidence and Proof § 2.7 (2012 ed.).... [Bjefore the 2000 amendment federal courts adhered to the rule that a motion in limine is insufficient to preserve error in the admission of evidence where the contemporaneous objection requirement of Rule 103 is not met.
Id. at 216 n. 10.
In Lafleur v. John Deere Co.,
The court of appeal was of the opinion that the defendants’ failure to object constituted a waiver of the right to object and that they could l1finot urge the objection on appeal. Richard v. Southwest Louisiana Hospital Association,383 So.2d 83 (La.App. 3d Cir.1980), writ denied,385 So.2d 274 (La.1980). A review of the record indicates that the defendants did not fail to object to the introduction of the videotape. The court of appeal was mistaken in its contrary conclusion. In fact[,] defendants filed a Motion in Limine objecting to the introduction of the videotape, inter alia, and that motion was overruled by the trial judge.
Id. at 632.
In the instant case, defendants KMTC-JV and KECO filed motions in limine in which they objected to and fully briefed the issues of the admissibility of subsequent remedial measures, prior accidents, and evidence protected by the attorney-client and work product privileges.
(2) Review of the Trial Court’s Eviden-tiary Rulings—
During trial, the court declined to rule on the motion in limine on subsequent remedial measures. Instead, the court allowed the jury to determine whether an Inaction was a subsequent remedial measured.
In Reichert v. State, Dept. of Transp. and Development, 96-1419, 96-1460 (La.5/20/97),
While it is true that a trial court has broad discretion on evidentiary rulings, it is likewise true that where the trial court abuses its discretion, its decision should not be allowed to stand. In McLean v. Hunter,
In the instant case, we find legal error in the admission of evidence of subsequent
B.) Other Accidents—
During questioning of Mike Sul-ser, a civil engineer employed by Traylor Brothers, Inc., one of the joint venture partners in KMTC-JV, plaintiffs’ counsel asked: “this deal about cages collapsing is nothing new to Kiewit, is it?” Sulser replied that he did not know about Kiewit’s previous experience. KMTC-JV’s counsel objected on the grounds that the witness was not a Kiewit employee. Plaintiffs’ counsel showed plaintiffs’ exhibit 130 to Sulser as he read it to the jury. Plaintiffs’ exhibit 130 is a report prepared by KECO in connection with an industry-wide study on rebar cage installation, which it conducted after the instant accident. It contained information about three accidents that had occurred more than ten years before the instant accident. Prior to Sul-ser’s testimony, defendants strongly objected to evidence of other unrelated accidents and reminded the trial court that the motion in limine had been filed. In response, the trial court entertained argument on the motion. Plaintiffs’ counsel argued that the evidence was admissible to impeach the witness regarding testimony that KMTC-JV was a |19safe company.
Louisiana Code of Evidence articles 402 and 403 require that the evidence sought to be introduced be relevant, but relevant evidence may be excluded if its probative value is . substantially outweighed by the danger of unfair prejudice. In Lee v. K-Mart Corp.,
In the instant case, after the court allowed introduction of plaintiffs’ exhibit 130, defendants’ witness, John Proskovec, testified to the lack of similarity between the other accidents and the instant acci
C.) Attorney-Client/Work-Product Privilege—
Louisiana Code of Civil Procedure article 1424 is entitled “Scope of discovery; trial preparation; materials.” Article 1424(A) provides that the trial court shall not order the production or inspection of any writing obtained or prepared by the adverse party, his attorney, surety, indem-nitor, or agent in anticipation of litigation or in preparation for trial unless satisfied that denial of production or inspection will unfairly prejudice the party seeking the production or inspection in preparing his claim or defense or will cause him undue hardship or injustice. Article 1424(A) further provides that the court shall not order the production or inspection of any part of the writing that reflects the mental impressions, conclusions, opinions, or theories of an attorney. Thus, the “attorney work-product rule” generally prohibits the release of information prepared in anticipation of litigation unless prejudice or hardship is shown to occur if access to the privileged information is denied. See Cooper v. Public Belt R.R., 2002-2051 (La.App. 4th Cir.1/22/03),
The purposes of the work-product rule are to provide an attorney a “zone of privacy” within which he is free to evaluate and prepare his case without scrutiny by his adversary and to assist clients in obtaining complete legal advice. Id.; Hodges v. Southern Farm Bureau Cas. Ins. Co.,
|⅞1⅛ Cacamo v. Liberty Mut Fire Ins. Co., 99-1421 (La.App. 4th Cir.10/10/01),
Louisiana’s work[-]product rule states that a court shall not order the production of a document prepared by an adverse party in anticipation of litigation or trial unless the denial of production will unfairly prejudice the party seeking production. [La.Code Civ. P.] art. 1424. Under no circumstances should a court order the production of documents reflecting the “mental impressions, conclusions, opinions, or theories of an attorney or an expert.” Id. Only documents and evidence obtained in anticipation of litigation or trial are covered by the work-product doctrine. See Board of Com’rs of New Orleans Exhibition Hall Authority v. Missouri Pacific R. Co.,613 So.2d 174 (La.App. 4[th] Cir.1992).
Article 1424 requires a two-fold inquiry for determining if documents are protected by the privilege: (1) Were the articles obtained or prepared in anticipation of litigation or trial? and (2) Will the party seeking production be unfairly prejudiced, subject to undue hardship, or subject to injustice by denial of the discovery? See Smith v. Travelers Ins. Co.,418 So.2d 689 (La.App. 4[th] Cir.1982), rev’d on other grounds,430 So.2d 55 (La.1983). To determine if the work-product privilege applies, a court should consider the content, nature, and purpose of a document, not the date or time that the document was prepared. See Federal Deposit Ins. Corp. v. Butler,488 So.2d 741 , 743 (La.App. 4[th] Cir.1986).
In the instant case, defendants claim that the trial court initially ruled correctly that material generated by a Kiewit corporate attorney was privileged, but then later erred in admitting the attorney’s information through the video deposition of Jeffrey Travis, KMTC-JV’s non-testifying expert. Travis was hired on behalf of KMTC-JV and worked with attorney Glen Summers. He investigated the accident and preserved some artifacts and evidence.
Prior to trial, KMTC-JV filed a motion in limine as to the privileged information. KMTC-JV sought to exclude all references to privileged communications and to documents identified in its privilege logs. The information was submitted to the trial court for an in camera inspection. On the first day of trial, the trial court ruled on KMTC-JV’s motion in limine and held that attorney Summers’ notes were privileged.
|2SA review of the record leaves no doubt that much of Travis’ testimony was based on information provided to him by corporate attorney Summers. The information was gathered by Summers in anticipation of litigation and in preparation for trial. It was provided to Travis, who assisted Summers and was a non-testifying expert. Louisiana Code of Civil Procedure article 1425(D)(2) restricts discovery of facts known to, and opinions held by, experts employed in anticipation of litigation and preparation for trial who are not expected to be called as witnesses at trial. Under Louisiana Code of Evidence article 506(B)(2), communications from Summers to Travis were communications between a lawyer and a representative of the lawyer
We must now determine whether the aforеmentioned legal errors tainted the jury’s verdict as to KMTC-JV. As stated above, proof that KMTC-JV knew that its conduct would cause harm is the key to proving KMTC-JVs liability. Travis’ testimony forms the basis of plaintiffs’ claims that KMTC-JV experienced problems at W-3 and W-4, the two columns that were built before the accident occurred at W-2. Specifically, plaintiffs established, through Travis’ testimony, that the rebar cages at those two prior columns leaned. Consequently, plaintiffs repeatedly argued that KMTC-JV knew that its method was substantially certain to cause harm. The jury also heard evidence of other accidents related to rebar cages, suggesting knowledge of KMTC-JV. despite proof that KMTC-JV did not actually exist when the prior accidents occurred, The jury also heard many witnesses testify to procedural changes made after the accident, such as cutting the rebar cages in half and keeping the crane attached | ^longer. We find that the trial court’s cumulative legal errors in admitting the inadmissible evidence was of such a serious prejudicial nature that it justifies this court giving little or no weight to the jury’s verdict. See Gonzales,
A review of the admissible evidence in the record shows that no other witness besides Travis testified about leaning re-bar cages constructed at any of the other columns for the project. KMTC-JV crane operator, Mayon, specifically testified that he was the crane operator on the W-3 and W-4 columns on the Huey P. Long Bridge project, and he saw no leaning of any rebar cages. Angel Corona, J.L. Steel’s foreman on the job, testified that he had not noticed any significant bending or buckling of a rebar cage prior to this accident.
Michael Phelps, Kiewit field engineer, testified that he was near the crane on the date of accident. He testified that he did not see the rebar cage at column W-2 lean before the crane was unhooked, and he never heard anyone say that they saw the cage leaning before the crane was unhooked. He testified that similar rebar cages stood overnight with no crane attached, only guy wires. Phelps also testified that he did not think the W-2 rebar cage was too large before the lift was made and that it was only two-to-three-feet taller than those used on earlier lifts. He testified that the W-2 rebar cage was spot checked before the lift, and no problems were identified. Phelps further testified that the DOTD contract administrator, Louisiana Timed Managers, a Joint Venture Partnership (LTM), did not create any non-conformance reports on any of the rebar cages for the project.
John Proskovec, vice president of Kiewit Louisiana and manager of the Louisiana area for the company, testified that KMTC-JV made a mistake in the field when attaching guy wires. He testified that Ceasar Velador pulled a tape to 12Smeasure the location for the blocks and thought he was putting them in the right places, but after the accident, they saw that KMTC-JV had not followed the guy wiring plan, which was prepared by KECO. Proskovec testified that, if the guy wiring plan had been followed, the accident would not have happened. He further testified that if this cage was doomed to fail,
Mike Sulser, a Traylor Brothers engineer, testified that he is a licensed Louisiana engineer and worked as the rebar and concrete coordinator on the project. He testified that he worked with J.L. Steel on this project every day since the work began in 2008. He also worked closely with CMC Rebar. Sulser testified at length regarding the safety measures and procedures followed at the job site, including a hazard analysis, a work plan quality analysis, and several layers of regular safety meetings with all parties involved.
Bruce Peterson, M & M project manager, testified that no one at M & M believed that KMTC-JV intentionally caused the accident nor has M & M ever believed that KMTC-JV knew or was substantially certain that the accident was going to occur, but then did the operation anyway. Frank Denton, M & M’s Inexpert, also concluded that KMTC-JV did not know in advance that this accident was substantially certain to happen and then proceeded with the project anyway. Plaintiffs expert, Dr. James Harold Deatherage, testified that he reviewed 30,-000 documents, as well as testimony, and did not find any evidence that anyone from KMTC-JV intended to harm anyone. We understand how the jury could have concluded that KMTC-JV was at fault. Then-conduct was certainly negligent and perhaps even grossly negligent, but our thorough review of the admissible evidence in the record convinces us that KMTC-JVs conduct does not rise to the level of an intentional act. Even if we considered the admission of testimony about prior leaning of rebar cages as harmless error that testimony does not suffice to prove that KMTC-JV knew that the accident was substantially certain to follow. As in Reeves,
Having concluded that KMTC-JVs conduct did not constitute an intentional act, we pretermit a full discussion and legal analysis of KMTC-JV’s assignments of error regarding incomplete and confusing jury instructions on intentional acts and prejudicial photographs.
KECO’S LIABILITY
KMTC-JV and KECO contend that the jury manifestly erred in concluding that KECO was 10% at fault and that KECO’s fault contributed to the death of
Applying the standard of review set out above, we cannot say that the jury’s finding of fault on the part of KECO was manifestly erroneous, Dr. Deatherage testified that the KECO guy wiring plan failed to give tension directives for the wires. He testified that KECO was in the best position to raise the question of the rebar cage stability and that KECO should have performed a stability analysis. The testimony of Dr. Deatherage that KECO should have mandated specific tension on the wires and should have performed a cage stability analysis is a reasonable basis on which the jury could have concluded that KECO was negligent and that KECO’s fault contributed to the collapse of the rebar cage. This is true despite the fact that KECO’s plan was not followed. Even if legal error in connection with evi-dentiary rulings interdicted the factíjfind-ing2S process as to KECO, and even after we exclude the erroneously admitted evidence, we conclude, based on our de novo review of the evidence in the record, there is still adequate evidence to support the jury’s conclusion that KECO was at fault and that its fault caused or contributed to Martinez’s death. Accordingly, this assignment of error has no merit.
M & M’S LIABILITY
M & M argues that the trial court committed reversible error when it allowed plaintiffs’ expert to give opinion testimony interpreting the contract between M & M and DOTD. M & M also contends that Louisiana law requires that plaintiffs claiming professional negligence must establish that the professional failed to perform his services in accordance with the skill normally exercised by others in his profession in the same locality and plaintiffs in this case failed to establish what that standard was. M & M further argues that the trial court erred in prohibiting M & M from conducting a meaningful cross-examination of plaintiffs’ expert on voir dire as to the locality standard of care, and additionally, the trial court erred in refusing to allow M & M’s engineering expert to testify regarding the locality standard of care because his license expired after he retired from practice. M & M avers that these legal errors resulted in the jury erroneously finding that M & M caused or contributed to Martinez’s death.
Under Louisiana law, where the words of a contract are clear and unambiguous, interpretation of the con
M & M filed two motions in limine seeking to prohibit plaintiffs’ expert, Dr. Deatherage, from testifying as to the meaning of the contract, between M & M and DOTD, and the scope of M & M’s duty thereunder. M & M sought a ruling from the trial court prior to plaintiffs’ expert being offered to testify.
IsnAdmissibility of expert testimony in Louisiana is governed by Louisiana Code of Evidence article 702, which provides: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” A trial court is accorded broad discretion in determining whether expert testimony is admissible and who should or should not be permitted to testify as an expert. Merlin v. Fuselier Const. Inc., 2000-1862 (La.App. 5th Cir.5/30/01),
However, Dr. Deatherage’s opinion was not relevant to assist the jury on a technical issue or in determining the contracting parties’ intent. Admission of the testimony on this point was prejudicial legal error. The jury could have easily concluded that M & M had a duty to involve itself in the contractor’s decisions on how to build the columns for the bridge. In addition, the expert’s testimony in this regard does not meet the standards of technical or special knowledge. See Cheairs v. State ex rel.
To determine the scope of the duty owed by M & M, this court must consider the express provisions of the contract between the parties. See Day v. National U.S. Radiator Corp.,
J^SCOPE OF SERVICES
The services to be performed by the Consultant as set forth in the original Contract, Supplemental Agreements No. 1 through 27 and Extra Work Letters No. 1 through 5 are hereby augmented to perform design services during construction for the Main Bridge/Westbank and Eastbank Approaches Contract, more specifically described as follows:
November 1, 2008 through the duration of the construction period.
• Meetings and Coordination-Attend partnering meetings, LTM meetings, and other meetings as required.
• Shop Drawing Checking and Construction Procedure Reviews-Review and check contractor prepared shop drawings and review contractor’s construction procedures.
• Design RFI’s-Review contractor requests for information and requested changes in design details to accommodate contractor’s particular plant (sic) and methods.
• Construction RFI’s-Review contractor request for information and requested changes in details to deal with unforeseen circumstances and events.
• Plan Changes-Execute and process plan changes when needed.
Review of the specifications for the bridge project contained in Section 806.03 of the Red Book (the standard specifications required by the State of Louisiana for roads and bridges) shows that M & M is required to review the reinforcing steel list the contractor intends to use on the job and the placement drawings for that steel. However, M & M argues that the contract does not require M & M to review erection procedures. Since we find that the words of the contract are ambiguous in that they are subject to different interpretations, we must review the testimony of the parties to determine their intent. Record testimony of the relevant parties is as follows.
Steven Spohrer, LTM deputy director of construction, testified that the Red Book did not require M & M to review erection drawings for any column used on this project. M & M was required to review shop drawings in order to determine that what the contractor planned to build was in conformity with M & M’s design. 132However, Spohrer testified that no rebar cage erection drawings were submitted by LTM (the State’s contract administrator for DOTD) to M & M for review.
Tom Thorn, KMTC-JV project manager, testified that he had overall responsibility for the project. He testified that it was KMTC-JVs duty to place the guy wires and to decide how to lift the rebar cage and that M & M had no duty to observe work at the site. Thorn testified that the placement drawings for the W-2 column did not address how the column would be built. He further testified that M & M had no involvement with design of the
Bruce Peterson, senior associate project manager for M & M, testified that M & M had no duty to go to the site unless called on to do so and that M & M was not called to go to the site in connection with any column work. He also testified that M & M was not asked to review any construction procedures for steel reinforced columns. Peterson stated that the Red Book spells out which shop drawings are required to be submitted to M & M by the general contractor. According to Peterson, there is no requirement that M & M review the general contractor’s construction procedures for reinforced steel concrete columns. M & M reviewed placement drawings to ensure that the bridge was being built in accordance with the plans and specifications. Peterson testified that M & M does not review shop drawings for erection procedures, and the specific methods for building the bridge are chosen exclusively by the general contractor. He further testified that M & M never received a guy wiring plan for any rebar cage. Additionally, Peterson stated that LTM did not ask M & M to review the May 2009 guy wiring plan for the W-2 column. Peterson testified that only two items were sent to M & M to review under Supplement 28 of the contract with DOTD Issthat pertained to EBBW-2: 1) shop drawings for steel, and 2) the September 2008 guy wiring plan for concrete* forms.
Our review of the record convinces us that, under its contract with DOTD, M & M did not have a duty to review erection procedures in connection with the construction of the W-2 column. As the design engineer, M & M reviewed only the items it was specifically asked to. review and that were sent to it by LTM. LTM was under contract with DOTD to provide construction management, and it had on-site presence throughout the project. When M & M reviewed CMC Rebar’s placement plans for the reinforcing steel required to be included inside of the W-2 column, M & M fulfilled its contractual obligation to DOTD by verifying that KMTC-JV intended to build the column as designed.
Based on the admissible evidence and the applicable law, we conclude that M & M had no duty to review the contractor’s means and methods for erection of the rebar cages and did not review the erection plan for the rebar cage involved in the accident or for any other cage.
The trial court also committed legal error in denying M & M’s counsel the right to fully cross-examine plaintiffs’ expert regarding the standard of care applicable to M & M’s conduct, Also fatal to plaintiffs’ claim against M & M was their failure to introduce evidence of the standard of care in the locality. Dr. Deatherage testified that the standard of care is what a reasonably prudent contractor or engineer would do under similar circumstances, regardless of where he is. He testified that he never practiced engineering in Louisiana. He also admitted that he made no investigation regarding the standard of care applicable to Louisiana engineers or to the location of the project.
In Carter v. Deitz, 556 So.2d 842, 843 (La.App. 4th Cir.), writs denied,
In the instant case, Dr. Deatherage did not give testimony establishing the standard of care by which M & M’s conduct was to be judged. Instead, he testified to his personal opinion based on his own inclination or belief that the design engineer on this bridge project should have sought out the general contractor’s means and methods of building what M & M designed.
Our review of the record reveals that plaintiffs failed to establish the standard of care by which M & M’s conduct was to be judged. Further, there is no evidence that suggests M & M’s design of the bridge expansion was faulty. | ^Accordingly, the judgment finding M & M at fault in causing or contributing to Martinez’s death is reversed.
DAMAGES
All defendants challenge the total jury award of $13 million to the plaintiffs. The jury awarded damages as follows;
Survival—
Award for Ulvaldo Soto Martinez’s suffering prior to his death:
$250,000 Terror during the fall
$250,000 Bodily pain and suffering before death
$500,000 Emotional and mental anguish after the fall, prior to death
$1,000,000 TOTAL
Wrongful Death—
Maria Cruz Maldonado’s award for the wrongful death of her husband:
$500,000 Past emotional pain and suffering
$1,500,000 Future emotional pain and suffering
$100,000 Past lost economic benefits.
$1,400,000 Future lost economic benefits
$1,500,000 Loss of love, affection and society
TOTAL $5,000,000
Wrongful Death—
Justin Maldonado’s award for the wrongful death of his father:
$700,000 Past emotional pain and suffering
$750,000 Future emotional pain and suffering
$1,500,000 Loss of love, affection and society
$50,000 Future lost economic benefits
TOTAL $3,000,000
Wrongful Death—
Usvaldo Maldonado’s award for the wrongful death of his father:
$700,000 Past emotional pain and suffering
$750,000 Future emotional pain and suffering
$1,500,000 Loss of love, affection and society
$50,000 Future lost economic benefits
TOTAL $3,000,000
| ?ñBgstunder—
Gilberto Soto Martinez’s award for witnessing the death of his brother:
$500,000 Past emotional pain and suffering
$250,000 Future emotional pain and suffering
$250,000 Loss of love, affection and society
$1,000,000 TOTAL
The factfinder is given much discretion in the assessment of damages. La. Civ.Code art. 2324.1. The vast discretion vested in the factfinder should rarely be disturbed on appeal. Youn v. Maritime Overseas Corp.,
A plaintiff is entitled to recover for all damages necessary to compensate for the physical injuries suffered. Hymel v. HMO of Louisiana, Inc., 2006-0042 (La.App. 1st Cir.11/15/06), 951 So.2d
A.) Survival Damages—
The jury awarded a total of $1 million for pain and suffering and mental anguish suffered by Martinez, before his death. Survival damages may be awarded for the pre-death mental and physical pain and suffering of the deceased. Leary v. State Farm Mut. Auto. Ins. Co., 2007-1184 (La.App. 3d Cir.3/5/08),
A survival action permits recovery only for damages actually suffered by the deceased from the time of injury to the moment of death. Etcher v. Neumann, 2000-2282 (La.App. 1st Cir.12/28/01),
The testimony revealed that Martinez fell from a height of over 60 feet when the rebar cage collapsed. He was found lying face down and was breathing when the first person arrived to assist him. He died at the scene shortly thereafter. There is no evidence in the record that Martinez was conscious at the scene. Therefore, we find that the jury award of $250,000 for Martinez’s physical pain and suffering before his death is abusively high.
The evidence supports a finding that Martinez would have been frightfully aware that he was likely to die or suffer serious injury when the rebar cage started its descent. While pre-impact fear is com-pensable, we deem the jury’s award of $250,000 for terror during the fail and $500,000 for mental anguish after the fall, but prior to his death, to be so excessive as
In Raymond v. Government Employees Ins. Co., 2009-1327 (La.App. 3d Cir.6/2/10),
In Long v. State, Through the Dept. of Trans. and Dev., 37,442 (La.App. 2d Cir.11/24/03),
Based on our review of jurisprudence and considering the facts of the instant case, we find that the highest amount to be reasonably within the jury’s discretion for survival damages in this case is $300,000.
|,inB.) Wrongful Death Damages—
Wrongful death claims do not arise until the victim dies, and they are meant to compensate the designated survivors for their loss of the decedent. See La. Civ.Code art. 2315.2. The elements of the award for wrongful death include loss of love, affection, companionship, support, and funeral expenses. Wingfield,
The jury awarded Maldonado the sum of $5 million in wrongful death damages. Of that sum, $1.5 million is for loss of love, affection, and society, and $2 million is for past and future emotional pain and suffering. The remaining $1.5 million awarded to Maldonado is for economic loss, which we will address separately. The jury also awarded $3 million in wrongful death damages to each of decedent’s minor sons, which included $50,000 each for lost economic benefits. All defendants argue these awards are abusively high.
Maldonado testified that she and Martinez met when she was fourteen years old. They dated for seven years and married in 2000, when she was twenty-three years old. It is clear from the testimony that they had a loving relationship and that Maldonado misses her husband very much. They had two sons, Usvaldo Jr., born on December 25, 2001, and Justin, born on August 22, 2005. Martinez was proud of their two sons, and he supported the family doing |41 construction work. On the date of his death, Martinez was thirty-three years old and his sons were seven and three,
We find that the jury abused its discretion in awarding $3.5 million for pain and suffering and loss of love, affection and society to Maldonado. In Roberts v. Owens-Corning Fiberglas Corp., 2003-0248 (La.App. 1st Cir.4/2/04),
We find that the highest amount the jury could have reasonably awarded for wrongful death damages to the surviving spouse of this nine-year marriage |42under these facts Is $750,000.
The children were seven and three on the date of their father’s death. They face a future without their father’s affection, care, assistance and advice. Nevertheless, we find that the jury abused its discretion in awarding each child $3 million for wrongful death damages. A jury award of $125,000 in damages to each of the decedent’s two minor children and $100,000 to each of three adult children was upheld by this court in Ratliff v. State ex rel. Dept. of Transp. and Development, 2002-0733 (La.App. 1st Cir.3/28/03),
|4SC.) Bystander Damages—
Louisiana Civil Code article 2315.6 allows recovery for mental anguish or emotional distress sustained by a claimant. The damages must result from witnessing an event that caused physical injury to another. The brother of the decedent is among the individuals who have a cause of action. See La. Civ.Code art. 2315.6(A)(3). In order to recover, a claimant must prove that the extent of harm sustained by the tort victim was so severe that it could reasonably be expected that the claimant would experience severe and debilitating emotional distress. La. Civ.Code art. 2315.6(B).
All defendants claim that the jury abused its discretion in awarding $1 million to decedent’s brother, Gilberto Martinez. Defendants KMTC-JV and KECO also claim that the jury committed manifest error in awarding damages in two categories: (1) future emotional pain and
We agree that the damage award is excessive. A review of the testimony shows that Gilberto Martinez was working on the project on the accident date and saw the rebar cage collapse. When he ran to help, he saw his brother on the ground with the others present. Gilberto Martinez testified that his brother did not speak, his eyes were closed, and he was bleeding from the mouth. Gilberto Martinez was there when his brother took his last breath. He estimated that his brother lived for about twenty to twenty five minutes after the ambulance arrived. Gilberto Martinez testified that he has not consulted with a doctor, nor has he seen a counselor or a priest as a result of witnessing his brother’s death. There was no testimony indicating that he missed any work subsequent to the accident. He testified that he has had nightmares about his brother since the accident.
Under the circumstances of this case, we find that the jury committed manifest error in awarding $500,000 to Gilberto Martinez for past emotional pain |44and suffering combined with $250,000 for future emotional pain and suffering resulting from witnessing the accident. Further, the $250,000 award for loss of love, affection and society is not a recoverable element of damages for a bystander. See La. Civ.Code art, 2315.6(A).
In Craighead v. Preferred Risk Mut. Ins. Co., 33,731 (La.App. 2d Cir.8/25/00),
D.) Economic Loss—
Awards for loss of support include loss of support from the date of death to the date of trial and loss of future support from the date of trial through the length of the decedent’s work-life expectancy. Brossett v. Howard, 2008-535 (La.App. 3d Cir.12/10/08),
Defendants initially argue that no lost wages can be awarded in this case because Martinez was an undocumented alien, and the federal Immigration Reform and Control Act (“IRCA”), 8 U.S.C. § 1324, prohibits the employment of undocumented aliens.
Lost earnings awards in wrongful death and survival actions are state tort remedies and are equivalent to those authorized under the Longshore and Harbor | ^Workers’ Compensation Act (LHWCA)
In the instant case, since Martinez was not legally authorized to be in this country, he was subject to deportation at any time. Based on these facts, we conclude that defendants were entitled to establish that use оf past wages to calculate future damages was improper, and they were entitled to show what a proper measure of damages should be. It was error for the trial court to exclude that evidence. Since the record contains all necessary evidence on which to base a determination of an award, including the proffer of economic testimony, we will conduct a de novo review on the issue of economic loss.
Plaintiffs’ economic expert, Dr. Gerald Cassanave, calculated Martinez’s loss of earnings based on a five-year history of earnings using the years 2003, 2004, 2005, 2008 and 2009. He calculated an average
Defendants’ expert economist, Dr. Kenneth Boudreaux, calculated Martinez’s earnings based on a five-year history using his five consecutive years of earnings prior to the accident. This period gave an annual average wage of $20,550. He testified that the documents normally relied on to calculate economic loss, such as tax returns and social security earnings records were not available for review. Dr. Bou-dreaux criticized Dr. Cassanave for skipping the years 2006 and 2007, claiming they were recession years in the construction industry, since those were boom years in construction in south Louisiana, Dr. Boudreaux reduced the total amount of projected future earnings by 26%, which represents the projected personal consumption by Martinez. Dr. Boudreaux calculated a total economic loss of $330,000. He did not add any amount for fringe benefits and was critical of Dr. Cas-sanave for doing so since there was no evidence that Martinez ever received fringe benefits on any job. He also criticized Dr. Cassanave’s analysis for including loss of household services since there was no evidence that costs for such services were incurred after Martinez’s death. Review of the proffered testimony of Dr. Boudreaux shows that in his home country, Martinez would have earned approximately $3,699.05 annually. He testified that; using Mexican wage rates, the total loss of earnings for a twenty-four-and-one-third-year work-life expectancy is $66,505.88.
After a thorough review of the record, we conclude that the jury’s award of $1.6 million for loss of economic benefits is manifestly erroneous. We therefore reduce the award for economic loss to $330,000 based on U.S. wages as testified to by Dr. Boudreaux using five consecutive years of earnings before Martinez’s death.
| ^CONCLUSION
This tragic accident was caused by the negligence of KMTC-JV in selection of the means and methods for erection of column W-2 on the Huey P. Long Bridge. Our exhaustive review of the record convinces us that KMTC-JV neither intended to harm anyone on this job she nor did it have knowledge that harm was substantially certain to result from the means and methods it selected to build this column. Plaintiffs’ recovery against KMTC-JV is limited to workers’ compensation. Thus, we reverse the jury verdict in part as to the fault of KMTC-JV.
Although the evidence shows that the KECO guy wiring plan was not followed, there is testimony in the record that KECO should have tested the rebar cage stability and should have supervised the implementation of its guy wiring plan. Therefore, we cannot say that the jury’s finding that KECO was at fault is manifestly erroneous. Accordingly, we affirm the jury verdict in part, to the extent it cast KECO 10% at fault.
We also hold that M & M, as design engineer, had no duty to inspect the methods employed by the general contractor who was responsible for building the bridge expansion. Accordingly, we re
As for the damages awarded by the jury, we hereby amend the damage awards as follows: survival damages, $800,000; wrongful death damages to spouse, $750,000; wrongful death damages to each child, $450,000; loss of support, $830,000; and bystander damages to brother, $100,000; for a total damage award of $2,380,000, which is subject to the 10% allocation of fault as to KECO.
For all the reasons assigned, we hereby reverse the judgment rendered in accordance with the jury verdict in part, amend in part, affirm in part as amended, |49and render judgment in favor of plaintiffs. All costs of this appeal are assessed to KECO.
REVERSED IN PART; AMENDED IN PART; AFFIRMED IN PART AS AMENDED; AND RENDERED.
McDonald, J., agrees in part and dissents in part and assigns reasons.
GUIDRY, J., concurs in part, dissents in part, and assigns reasons.
Notes
. The Reyes family filed a separate wrongful death action in Texas. Vargas v. Kiewit La Co., (S.D. Tex. 6/17/09)(unpublished).
. DOTD and Arch Insurance Company settled with plaintiffs and were dismissed with prejudice. J.L. Steel was also dismissed with prejudice. The ease proceeded to trial against the remaining defendants, KMTC-JV, KECO, Zurich, and M & M, Twin City Fire Insurance Co., J.L. Steel’s insurer, filed suit for declaratory judgment regarding insurance coverage and that suit was consolidated with the Maldonado case for trial.
. As the insurer for KMTC-JV and KECO, Zurich's arguments on appeal are the same as its insureds; therefore, in the interest of economy, we will refer only to its insureds.
. The pot weighed 350-400 pounds empty and could hold up to 1,000 pounds of sand.
. The trial court granted the motion in limine as to attorney-client privilege on the first dаy of trial.
. The trial court stated: "Wherever it says, subsequent remedial measures, take it out (of what is read to the jury). If it doesn’t say subsequent remedial measures, then the jury is going to decide if it is a subsequent remedial measure.” The court gave the jury an instruction on subsequent remedial measures.
. Defendants list the challenged witnesses and exhibits as follows: Cesar Rodriguez, Angel Rodriguez, Dr. James Harold Deatherage, John Proskovec, Michael Phelps and Mike Sulser; plaintiffs’ exhibits: 20, 24, 36, 39, 44, 51, 92, 95, 109, 130-132, 134-135, 137, 143, 160, 162, 183-484.
. We acknowledge plaintiffs’ assertion that the subsequent remedial measures showed knowledge, control and feasibility and further were not voluntary. We find the assertion to be without merit.
. Plaintiffs did not establish that KMTC-JV was involved in the other incidents; thus, this evidence could not be used as impeachment of KMTC-JVs safety record. In fact, the evidence shows that KMTC-JV did not exist when the other incidents occurred. The "study” merely states that a Kiewit entity or a subcontractor was involved in three accidents in 1994 or 1995 and provides scant detail.
.In the instant case, plaintiffs' counsel ar'gued that the evidence was admissible for impeachment purposes. That' argument fails for the same reason noted in Lee, supra.
. KMTC-JV provided Travis for a deposition because he went to the scene of the accident and preserved evidence.
. The trial court stated that an attorney enjoys a privilege with his client and unless he opens the door, "then that ruling is going to stand.”
. For the same reason previously discussed, we find that the motions in limine, as well as the parties seeking a ruling on the motions just prior to this witness being presented to testify, preserved the issue for appeal.
. Because of our holding reversing liability as to M & M, we pretermit M & M’s specification error on whether the trial court erred in refusing to allow its retired expert, Frank Denton, to testify.
. See Hutto v. McNeil-PPC, Inc., 2011-609 (La.App. 3d Cir.12/7/11),
. See Rick v. State, Dept. of Transp. & Development, 93-1776, 93-1784 (La.1/14/94),
. Monk v. State, ex rel. DOTD, 2005-97 (La.App. 3d Cir.6/29/05),
. Evidence in the record indicates that Martinez was a citizen of Mexico and was an undocumented alien who procured employment through the use of false documents. The trial court excluded all evidence of deсedent's citizenship status, ruling that status was not relevant and was highly prejudicial.
. See Bollinger Shipyards, Inc. v. Director, Office of Worker’s Compensation Programs,
. He based this on a rate of $12 per hour for twelve to twenty-six hours per week, which he took from a dollar value for the day chart available from the U.S. Department of Labor.
Dissenting Opinion
agreeing in part and dissenting in part.
1 i While I agree with the majority opinion reversing the jury finding that an intentional act was committed by Mr. Martinez’s employer and I agree with the conclusion that the jury award for damages was excessive, I respectfully dissent in the amount of the reduction. I believe the highest amount the jury could have reasonably awarded in most categories is less than that found by the majority. The only awards with which I agree is the $100,000 award to Gilberto Soto Martinez 12for witnessing the death of his brother and the $330,000 award to Ms. Maldonado for economic loss.
As to the survival claim, I believe the majority’s reduction of the award to $300,000 is still too high and not supported by the evidence. The testimony indicated that Mr. Martinez fell from a height of over 60 feet when the rebar cage collapsed. He was found lying face down and was breathing, but died at the scene shortly thereafter. There is no evidence in the record that Mr. Martinez was conscious at the scene. The cases cited and relied on
I also find the majority’s reduction of the award to Ms. Maldonado and to each child for the wrongful death of Mr. Martinez to still be excessive.
Thus, I respectfully dissent from those portions of the majority opinion that only reduces the award for the survival action claim to $300,000, the widow’s wrongful death claim to $750,000 and the two children’s wrongful death claim to $450,000. I agree with the reduction of the widow’s economic loss claim to $830,000 and the reduction of the brother’s bystander claim to $100,000.
Concurrence in Part
concurring in part and dissenting in part.
|,I agree with the majority’s reversal of the jury’s determination that an intentional act was committed in this matter, and I further agree with the majority’s determination that the jury’s award of damages was excessive in this case. And while I concur with the majority’s reduction of the awards for the wrongful death claims for Ms. Maldonado and her sons, I disagree with the majority’s far-reaching reduction of the survival action claim, the wife’s economic loss claim, and the brother’s bystander claim. I would award $250,000 for the fear and terror the victim experienced during the fall and $500,000 for his pain and suffering, for a total survival action award of $750,000. For the wife’s economic loss, I believe $924,484 is a proper award based on Dr. Cassanave’s opinion, minus amounts attributable to fringe benefits and value of household services, for which I found no basis in the record to support those additional elements of her economic loss claim. Finally, with respect to the bystander award to the brother, I believe that a proper award for that claim would be no less than $150,000. Thus, I respectfully dissent from those portions of the majority opinion that reduce the awards for the survival action claim, the wife’s economic loss claim, and the brother’s bystander claim below the amounts of $750,000, $924,484, and $150,000, respectively.