758 So. 2d 171 | La. Ct. App. | 1999
Lead Opinion
This case involves a tragic one vehicle accident in which a fifteen-year-old driver of a pickup was injured and his father, a passenger, was killed'. The plaintiffs instituted this action against the vehicle’s manufacturer and a local dealer claiming that a leak in the exhaust system caused carbon monoxide (“CO”) to infiltrate the truck’s cab, incapacitating both occupants. Finding the jury’s verdict in favor of the defense tainted by an evidentiary ruling, we have reviewed the evidence de novo and affirm the trial court’s ruling upon our determination that CO poisoning was insufficiently established as the cause of the accident.
Facts
In July 1989, Cecil Masters (“Cecil”) purchased a new 1989 Ford F-250 pickup truck from Courtesy Ford, Inc. (“Courtesy”). The truck was primarily used by Cecil and his fifteen-year-old son, Eric (“Eric”), in Cecil’s contracting business. Eric, who obtained his driver’s license on October 9, 1989, had only driven the truck without an adult present on two occasions prior to the accident.
On November 21, 1989, Cecil took the truck back to Courtesy and advised the dealer of certain problems with the truck which, with 11,623 miles, was still under warranty. Cecil complained that he heard a “clicking” noise and that there was a “groaning” in the engine. Cecil also told the service manager at Courtesy that the truck occasionally blew black smoke from the tailpipe. One Courtesy service order for that date reflected the work of mechanic, Larry Fuller, who reviewed the “groaning” noise in the engine. Fuller registered a notation, “NPF,” no problem found. However, a second service order also dated November 21, 1989 contained the language “check for exhaust leak, engine clicking” “front grill loose,” and “blows black smoke sometimes” (hereinafter, the “Service Order”). The complaints of “front grill loose” and “blows black smoke sometimes” both 12had the notation “NPF.” Beside the complaint of “check for exhaust leak, engine clicking” was a notation “SOP,” specially ordered part. The back of the Service Order indicated that Courtesy had ordered an EGR tube to the exhaust manifold.
The EGR tube is the passageway allowing exhaust gases from the exhaust manifold to re-circulate back up to the EGR valve located at the top of the engine. The EGR valve regulates the flow of a small portion of the engine’s exhaust back into the engine’s combustion chamber for cooling. When the temperature of the combustion chamber gets too high, nitrous oxide is emitted which is one of the exhaust gas components controlled by the federal government. A cooling is accomplished by allowing a very limited amount of exhaust gas to flow out of the manifold, up through the EGR tube to the bottom of the EGR valve and into the combustion chamber.
The mechanic who had examined the exhaust system and ordered the EGR tube was Randy Rainwater (“Rainwater”). At the time of trial, and previously in pretrial discovery, Rainwater’s whereabouts were unknown so that plaintiffs’ ability to present evidence regarding Rainwater’s inspection of the truck was limited. Because the EGR tube had to be ordered, the truck was not repaired on November 21 and the vehicle was returned to Cecil.
There was little dispute concerning the facts of the accident which occurred on December 4, 1989. On that morning, Cecil and Eric left their house in West Monroe at approximately 7:00 a.m. in the truck. The morning was cold and they traveled with the windows up and the heater on. They made several stops in the Monroe area and Eric remained in the truck with the engine running for extended periods during the morning. En route to a job site in Farmerville, Cecil and Eric stopped for gas in West Monroe about 10:00 a.m., and they left the gas station eating candy bars and drinking Cokes. At this point, Cecil asked Eric to drive so |sthat he could
The drive from West Monroe to Farm-erville is approximately 30 miles, and the accident occurred near Rocky Branch, approximately halfway to Farmerville. After leaving the gas station, Eric remembers Cecil completing his figuring and picking up the paper to work on the crossword puzzle. Eric has no recollection of anything after that until he woke up in the hospital.
Lin Kesee, a truck driver, traveled behind the Masters’ truck for the final seven to eight miles until he witnessed the accident’s occurrence just outside Rocky Branch. He first approached the vehicle at the D’Arbonne Bayou bridge not too far from West Monroe. Throughout the eight-mile stretch while Kesee followed the Masters’ truck, he only noticed one person in the truck, the driver.
Passing through Rocky Branch, the Masters’ truck encountered other traffic and all proceeded through the small rural community at 45 m.p.h. Leaving Rocky Branch, the other traffic sped back up while Eric maintained a slower speed. The accident then occurred while the trucks ascended a steep hill. Although there were no other cars in front of the truck, Eric crossed the double yellow line drifting over into the left-hand lane on the two-lane highway. The truck traveled approximately 50 yards in the left-hand lane maintaining a 45 m.p.h. speed. Turning suddenly to the left, it then went off the pavement, down an embankment striking a large tree. Kesee never saw the driver apply the brakes or make any evasive actions to avoid the accident.
Both Eric and Cecil were unconscious when witnesses first reached them but both started to come to within four or five minutes. Cecil, who only exhibited slight movement and groans, died before medical help could arrive. The force of the impact had pushed the steering wheel and column into the driver’s seat. Eric, |4who was lodged between the driver’s side door and the crushed steering wheel, suffered numerous orthopedic injuries in the accident.
Terry Sue Anding, a registered nurse, passed by the scene shortly after the accident occurred. She went down to the vehicle and aided Eric while he remained pinned in the truck. Anding checked on Cecil but he did not have a pulse and was not breathing. She noticed that Cecil’s blood appeared to be unusual, describing it as “bright red.” Anding compared Cecil’s blood to extra-oxygenated blood that she had observed in caring for infants while on oxygen.
Louisiana State Police Trooper Jim Stephens was notified of the accident at 10:56 a.m. When he arrived at the scene, the ambulance personnel were already there. The road where the accident happened is a straight uphill stretch of highway. Trooper Stephens measured the distance at 99 feet, 9 inches from where the truck left the highway until it collided with the pine tree. The tree itself was only 24 feet, 5 inches from the roadway. With very little shoulder, upon leaving the road, the truck immediately went down a rather steep embankment. Trooper Stephens found no evidence of anything that would have caused the truck to leave the highway, no skid marks or any indication that the brakes of the truck were applied prior to the impact and no evidence that the driver attempted to get back onto the highway.
Over a month after the accident, Judy Masters (“Judy”) received a call from Courtesy advising her that the part which had been ordered for her husband’s truck was at the dealership. Judy went to Courtesy and picked up the part, an EGR tube.
Upon this discovery of the ordered part, the wrecked truck was inspected by a mechanic, Donnie Tuminello, in March 1990. Tuminello found that there was a break or separation between the base of the EGR valve and the EGR tube. A fitting on the EGR tube allowed the tube to be screwed into the EGR valve, and 1 ¡¡the defective
There was evidence that Cecil and Eric had experienced a few headaches and lethargy during the fall of 1989, including testimony that Cecil had complained of a headache on the morning of the accident. However, there was also information that they had been working fairly hard that autumn and that Cecil had prior sinus problems. Eric could not recall having any headache, nausea, lightheadedness or dizziness on the day of the accident and stated that Cecil had not complained to him of any physical ailments.
Judy, Eric and Ashley, Cecil’s daughter, filed a wrongful death action and a personal injury claim for Eric’s injuries in April 1990, naming Courtesy as a defendant. Ford Motor Company (“Ford”) was later added as a defendant. The matter went to trial before a jury in December 1994. The plaintiffs’ primary claim was that CO had overcome both Cecil and Eric, causing the accident. The defendants disputed this contention arguing that sleepiness or inadvertence caused the accident.
Numerous expert witnésses testified for both sides. Both the plaintiffs’ and defendants’ accident reconstructionists agreed that it was approximately 1.8 seconds from the time Cecil’s truck left the highway until it hit the tree and that the truck was traveling at approximately 86 m.p.h. at the point of impact. The experts disagreed over whether the angle at which the truck collided with the tree indicated that Eric had sufficient time and awareness to perform a steering input prior to the | ^accident. Plaintiffs and defendants both had expert engineers who monitored the level of CO in exemplar vehicles under various conditions. Both experts concurred that while completely disconnecting the EGR tube from the EGR valve led to slightly increased levels of CO in the cab of the truck, the levels were insignificant. Only when such exhaust leak was coupled with a rich running engine was there any appreciable level of CO recorded in the cab.
No medical evidence demonstrated the presence of CO in Eric or Cecil. Although a carboxyhemoglobin test was performed on Eric to detect the level of CO, all the experts agreed that the negative results were not significant because the test was performed at least 24 hours after the accident and Eric had been administered oxygen and blood during the interim time. The level of CO in Cecil’s blood was fixed at the time of his death. However, it was not until 1993 that Cecil’s body was exhumed and an autopsy was performed by an expert for the plaintiffs, Dr. George McCormick. By that time, the body was too decomposed to determine anything definitive about the presence of CO. Dr. McCormick did opine that the injuries he observed on Cecil should not have been fatal by themselves. Nevertheless, the defendants’ expert disagreed citing potential incompleteness in Dr. McCormick’s autopsy in not finding the basilar skull fracture cited in the original coroner’s report and noting other evidence indicating that Cecil’s chest injuries could have resulted in death.
Following the lengthy trial, the jury rendered a verdict for the defendants. In response to the initial interrogatory, the jury found that plaintiffs failed to prove more probably than not that CO was the proximate cause of Cecil’s death and Eric’s injuries. The trial court entered judgment in accordance with this verdict on February 17,1995.
[7Plaintiffs filed several post-trial motions including a motion for a new trial. The motion for a new trial asserted juror
Through three assignments of error, plaintiffs urge reversal of the jury’s verdict because of alleged prejudicial error in the trial court’s rulings regarding evidence in the case. Plaintiffs also assert the trial court erred in its ruling on the motion for new trial. Finally, even despite the alleged errors regarding the evidence, plaintiffs assert that the jury manifestly erred in its ruling on causation of the accident.
Discussion
I.
While plaintiffs assign as prejudicial error various rulings by the trial court on evidence, the most significant ruling concerns the evidentiary exclusion of the recorded written statement of Randy Rainwater. Courtesy’s November 21,1989 Service Order reflects that Rainwater had checked the exhaust on Cecil’s truck for lathe reported clicking noise and had specially ordered a part, the EGR tube. While the Service Order was introduced into evidence by the plaintiffs, Rainwater’s explanation of what he had found during his inspection and why he had ordered the EGR tube was not obtained by plaintiffs in discovery nor available as evidence at trial due to lack of knowledge of Rainwater’s whereabouts.
On May 3, 1990, approximately two weeks after Courtesy had been served with plaintiffs’ suit, Rainwater was first made aware of the accident and was questioned by an insurance adjuster investigating the plaintiffs’ claims. Rainwater’s May 3, 1990 recorded statement to the adjuster (hereinafter, the “Rainwater Statement”), which was eventually filed under seal in the record, has been claimed by Courtesy throughout the proceedings as its privileged work product.
The history of plaintiffs’ discovery efforts leading up to the trial court ruling on the Rainwater Statement is important for a resolution of this dispute. In June 1993, Courtesy provided plaintiffs with its answers to a set of interrogatories regarding Courtesy’s maintenance work on Cecil’s truck. Through interrogatories numbers 9 and 10, Courtesy was asked to identify the details for each occurrence of maintenance work on the vehicle. The November 21 maintenance work was vaguely described through Courtesy’s answers as follows:
“Date unknown;” “Work order says right side of bed higher than left and groaning noise in engine at steady speed;” and for the identity of the mechanic, “Unknown.”
This answer reports details of a second November 21 work order by which the work of another mechanic was recorded. The additional information on the critical November 21 Service Order revealing Rainwater’s work on the vehicle was not addressed in Courtesy’s answer.
“The parts [sic] were ordered because the build up of carbon deposits results in poor engine performance.”
The final significant inquiry in plaintiffs’ interrogatories numbers 28 and 29 requested information from all statements taken by Courtesy from persons with knowledge of the alleged problems with Cecil’s truck. Courtesy responded that “statements were taken from Courtesy Ford employees which are privileged,” citing the work product privilege. Although the identification of each employee who gave a statement was not revealed in this answer, Courtesy ultimately argued to the trial court that this answer had revealed to the plaintiffs in 1993 the existence of the 1990 Rainwater Statement, which it claims as privileged.
The issue of the work product privilege over the Rainwater Statement was not disputed by the plaintiffs until December 16, 1994, three days after the trial had commenced. At that time, plaintiffs attempted to subpoena from Courtesy the Rainwater Statement, the existence of which had only been divulged to the plaintiffs after the beginning of the trial. Plaintiffs argued to the court that in the course of discovery Courtesy had represented that it did not know what Rainwater would say concerning his inspection of the vehicle. Both parties acknowledged to the court that they had unsuccessfully attempted through investigators to locate Rainwater who was unavailable. In its defense against the production of the statement, Courtesy asserted that the statement had been taken by the adjuster in preparation for trial and was therefore work product. Courtesy’s counsel also read |into the court Courtesy’s 1993 answer to interrogatory number 29 quoted above and insisted that the existence of the Rainwater Statement had been divulged to plaintiffs well in advance of trial. Without reviewing in camera the Rainwater Statement, the trial court ruled that the statement was not subject to the subpoena duces tecum or discovery because it was Courtesy’s work product.
La. C.C.P. art. 1424 governs the discov-erability of information commonly referred to as work product, providing in pertinent part:
The court shall not order the production or inspection of any writing obtained or prepared by the adverse party, his attorney, surety, indemnitor, expert, 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.
Our supreme court has referred to the work product privilege in reviewing Article 1424 as a qualified privilege. Wolford v. JoEllen Smith Psychiatric Hospital, 96-2460 (La.5/20/97), 693 So.2d 1164, 1166.
The test for overcoming the privilege requires a showing of prejudice and undue hardship in preparing a party’s claim and has been compared to the federal discovery rule, Fed.R.Civ.P. 26(b)(3), which requires “a showing that the party seeking discovery has substantial need of the materials in the preparation of the party’s case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” Ogea v. Jacobs, 344 So.2d 953, 957 (La.1977) (interpreting the terms “unfair prejudice” and “undue hardship” as used in La. C.C.P. art. 1424 in relation to the federal discovery rules from which the Louisiana discovery provisions were derived).
The Rainwater Statement, which only after trial found its way into this record under unusual procedural circumstances, has been considered by this court in comparison to Courtesy’s June 1993 answers to discovery reviewed above. The undisputed fact revealed in the Rainwater Statement is that Rainwater would not have ordered the EGR tube unless he observed an exhaust leak. If, after attempting to tighten the tube, a leak was observed by Rainwater at the fitting on either end of the tube, he would order the EGR tube as a matter of his general practice. In reviewing the November 21 Service Order with the adjuster, Rainwater recalled the clicking noise as reported by Cecil and that he had | ^attempted to stop the leak at one of the fittings for the EGR tube before deciding to order the tube.
La. C.C.P. art. 1428(2) discusses the ongoing duty of a party to supplement responses to discovery, as follows:
(2) A party is under a duty seasonably to amend a prior response if he obtains information upon the basis of which he knows that the response was incorrect when made, or he knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
Courtesy’s answers to plaintiffs’ interrogatories were clearly made without acknowledging that Rainwater had worked on Cecil’s truck on November 21 and had investigated the report of the clicking sound in relation to the exhaust system. Nevertheless, that information was later discovered by plaintiffs when the November 21 Service Order was produced by Courtesy, see footnote 1, supra. More significantly, as to the critical question regarding why the EGR tube was ordered (interrogatory number 11), Courtesy elected to answer that Rainwater ordered the part “because the buildup of carbon deposits results in poor engine performance.”
Most troubling to us is the failure of Courtesy to have supplemented its answers to interrogatory number 11 after the preparer of the answers later learned the substance of the November 21 Service Order and the Rainwater Statement. Those two documents could not have been reviewed prior to a good faith preparation of Courtesy’s answers to interrogatory numbers 9, 10 and 11. Since the Rainwater Statement says that he ordered the EGR tube because he observed a leak in the exhaust system, Courtesy breached its duty under La. C.C.P. art. 1428(2) to amend its response to interrogatory number 11. Courtesy may not argue to the trial court that plaintiffs’ motion for the Rainwater Statement was untimely and in violation of the work product privilege when its failure to amend the substance of its answers to interrogatory number 11 misled the plaintiffs and the trial court. The trial court’s failure to have properly considered both the Rainwater Statement and Courtesy’s interrogatory responses in making its ruling under La. C.C.P. art. 1424 was therefore error.
We next consider whether the discovery of the Rainwater Statement denied to plaintiffs by the trial court’s ruling amounted to prejudicial error. First, we note that the Rainwater Statement, had it been revealed in discovery to plaintiffs, was admissible evidence. As to Courtesy, the Rainwater Statement was an authorized admission made by Courtesy’s employee who had the training and authority to perform service on the vehicle and make the decision regarding repairs. La.Code | uEvid. art. 801(D)(2)(c). Pacholik v. Gray, 187 So.2d 480 (La.App. 3d Cir.1966) and Dykes v. Peabody Shoreline Geophysical, 482 So.2d 662 (La.App. 1st Cir.1985). Although Rainwater was not Ford’s agent, his statement was admissible as to Ford as a statement against interest by an unavailable witness which is a hearsay exception under La.Code Evid. art. 804(B)(3). Campbell v. American Home Assurance Company, 260 La. 1047, 258 So.2d 81 (1972).
As to the test for prejudicial error, our supreme court has given the following guidance:
Error has been defined as harmless when it is “trivial, formal, merely academic, and not prejudicial to the substantial rights of the party assigning it, and where it in no way affects the final outcome of the case.” 5 Am.Jur.2d, Appeal and Error § 776 (1962) (citing State v. Britton, 27 Wash.2d 336, 341, 178 P.2d 341, 344 (1947)); Eastburn v. Ford Motor Co., 471 F.2d 21, 22-23 (5th Cir.1972) (applying Florida law). By contrast, prejudicial error “affects the final result of the case and works adversely to a substantial right of the party assigning it.” 5 Am.Jur.2d, Appeal and Error § 776 (1962); see also 5A C.J.S. § 1676 (1958). Moreover, error is prejudicial when it consists of the exclusion of evidence related to a “material point in issue” and adversely affects the substantial rights of the party opposed to the exclusion. 5Am.Jur.2d, Appeal and Error § 776 (1962).
Buckbee v. United Gas Pipe Line Co., Inc., 561 So.2d 76, 85 (La.1990).
Given the above dispute and conflicting evidence, the jury’s answer to its initial interrogatory that CO was not a causal factor in the accident could have rested upon a finding that no leak in the exhaust system was proven by plaintiffs. Presented with two contradictory views of that issue, in the absence of the Rainwater Statement, the jury could reasonably have accepted the defendants’ body of evidence that no exhaust leak existed. Therefore, despite the other important areas of factual dispute concerning the potential level of CO build-up in the cab, the circumstances of the accident and the possible symptoms of CO poisoning, the jury need not have reached those disputes upon a finding of no exhaust leak.
The defendants, nevertheless, argue that the Rainwater Statement would have been merely cumulative evidence which would not have affected the determination regarding the existence of an exhaust leak. We disagree.
Randy Rainwater was the only eyewitness who examined the truck’s EGR exhaust system before the accident on December 4, 1989. In his lengthy recorded statement with the adjuster, Rainwater was repeatedly asked at least five times regarding his recollection of finding an exhaust leak in Cecil’s truck. The November 21 Service Order was used by the adjuster to refresh Rainwater’s recollection of his inspection of the vehicle. Rainwater also recalled specific details which exhibited his independent recollection of Cecil’s truck even though he stated that he had worked on other trucks with the same exhaust leak problem. Throughout his statement, Rainwater never wavered in his testimony that he discovered an exhaust leak at one of the fittings for the EGR tube. He confirmed 11fithat he could identify such leak-by feeling the leak, seeing evidence of soot on the EGR sleeve, and/or hearing the clicking sound. In response to each of the five questions presented in various forms and at different times in the questioning, Rainwater confirmed the existence of the leak stating that he would not have ordered the EGR tube unless he had attempted to tighten the tube and had failed to stop the leak. With that eyewitness testimony, the issue of an exhaust leak, which was otherwise placed in substantial doubt at trial for the jury to decide, is removed from the case. The direct evidence of the leak which Rainwater’s observation provides can hardly be labeled cumulative in relation to the circumstantial evidence over which both sides battled before the jury.
In summary, the Rainwater Statement was improperly withheld from plaintiffs after a request for its production was made pursuant to La. C.C.P. art. 1424. The relevant portions of the statement were admissible evidence under La.Code Evid. arts. 801 and 804. The evidentiary error in excluding the Rainwater Statement was prejudicial since it could adversely affect the jury’s conclusion on a-material point in issue.
When the jury is tainted by incorrect and prejudicial instructions or rulings on admissibility of evidence in a tort case, the jury’s liability decision is not entitled to any deference, and the appellate court decides the case on the record without according any weight to the jury’s liability decision. Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975); Buckbee, supra. An exception to this de novo consideration was stated by the supreme court in Ragas v. Argonaut Southwest Insurance Co., 388 So.2d 707, 708 (La.1980) as follows:
Where a finding of fact is interdicted because of some legal error implicit in the fact finding process or when a mistake of law forecloses any finding of fact, and where the record is otherwise ' 117complete, the appellate court should, if it can, render judgment on the record.
This is not to say, and Gonzales should not be read to require, that the appellate court must find its own facts in every such case. There are cases where the weight of the evidence is so nearly 'equal that a firsthand view of the witnesses is essential to a fair resolution of the issues. The appellate court must itself decide whether the record is such that the court can fairly find a preponderance of the evidence from the cold record. Where a view of the witnesses is essential to a fair resolution of conflicting evidence, the case should be remanded for a new trial.
Considering the Gonzales/Ragas test for de novo review, we find that the record produced by this 22-day trial is complete.' Conflicting testimony requiring credibility calls between witnesses does not predominate. The testimony of Kesee, Anding and Trooper Stevens reports the evidence of the accident and the accident scene which is- not disputed by other witnesses. The availability of Randy Rainwater remained unclear even after trial during the parties’ dispute regarding plaintiffs’ motion- for new trial. There is no assurance that he would not remain an absentee witness elusive to service upon a remand for a new trial so that a new jury would only consider his 1990 statement which we have now reviewed. Most significantly, in view of the extremely slow pace of this litigation concerning an accident which occurred ten years ago, new testimony by the witnesses would be presented under a cloud of doubt due to the lengthy passage of time. Accordingly, with a complete record that does not warrant remand, we are required under Gonzales to exercise our constitutional authority to review the facts of this record de novo in the interest of judicial economy.
III.
With our finding of an exhaust leak at the connection between the EGR tube and the EGR valve, we now consider the remaining evidence. Plaintiffs presented evidence of tests for CO using another Ford F-250 truck of the same model year. The tests measured the amounts of CO in the truck cab and in the |isengine compartment under various simulated conditions. Significantly, with the engine combustion performing at normal levels, the tests showed that upon disconnecting the EGR tube entirely from the EGR valve the exhaust flowing directly into the engine compartment did not increase CO inside the cab to a dangerous level. It was only after the air/fuel combustion ratio was altered to increase the fuel level and cause a rich running engine that dangerous levels of CO accumulated in the cab.
The plaintiffs attempted to show that the Masters’ truck was experiencing a rich running engine by pointing to certain clues. On the November 21 Service Order, Cecil had reported that the engine “blows black smoke sometimes.” After the accident, the plaintiffs’ mechanic found three parts of the engine which he considered as evidence of a rich running engine. First, some of the eight spark plugs showed signs of excessive fouling with a residue which indicated to plaintiffs’ expert the burning of excessive fuel. Next, he
The defendants disputed this evidence by pointing out that the plaintiffs’ mechanic did not find the broken thermostat or clogged oxygen sensor until more than four years after the accident and the truck’s location during some of the interim time was unaccounted for. The defense expert witnesses also stated that the spark plugs from Cecil’s truck did not look like they came from an engine burning excessive fuel because they were not all uniformly discolored; they | ^attributed the discoloration to possible oil seepage by the valve seals. As to the black smoke, defendants’ witnesses testified that a few puffs of black smoke on the initial crank of a fuel-injected engine is normal because the computer richens the fuel mixture to start the vehicle but a rich running engine will emit black smoke constantly, not just intermittently. Finally, although he did not specifically remember Cecil or his truck, Larry Fuller, a mechanic for Courtesy, testified that upon such a complaint, he may have used his computer diagnostic equipment to cheek out the engine. The notation of “no problem found” on the November 21 Service Order concerning the black smoke problem indicated to Fuller that the computer testing was probably run even though no notation specifically reporting such testing was listed on the order.
From our review of this controversy, while we may accept the circumstantial evidence of the possibility of a mechanical flaw causing a rich running engine, there is considerable doubt that the fuel/air ratio of the Masters’ truck was abnormal and no proof regarding the level of the richness of the fuel mixture. Only about half of the eight spark plugs appear to be fouled for whatever reason, and the plaintiffs’ explanation for their fouling — the thermostat and/or oxygen sensor problem — would appear to us to impact uniformly the optimum combustion in every cylinder.
Moreover, the plaintiffs’ tests for a rich running engine were generated by a totally different problem which all agree was not a problem in the Masters’ truck. The plaintiffs simulated a rich running engine by disconnecting the MAP sensor of the exemplar vehicle. This resulted in an excessively rich fuel mixture with unpleasant side effects of engine roughness and stalling, all of which conditions were not shown to have existed in the Masters’ truck. While we understand that this was only a simulation, the excessively high fuel/air ratio exhibited and the | ^corresponding high levels of CO produced were probably not present in the Masters’ truck. No tests were performed simulating the effects of a broken thermostat or clogged oxygen sensor, and there was no testing of CO levels produced by a vehicle with only a moderately rich fuel/air ratio. We are left with proof of only the extreme — an excessively rich running engine producing excessive CO and obnoxious engine side effects. If the Masters’ truck suffered from a moderately rich running condition, the evidence for the cause of that condition and the potential level of CO produced by that condition is lacking.
Another problem which the plaintiffs’ simulations did not overcome concerned the marked decrease in CO levels inside the cab which occurred after the truck left an idle state and accelerated to highway speeds. Even the plaintiffs’ expert agreed that while the CO reached dangerously high levels when the truck idled with the EGR tube and EGR valve separated and the MAP sensor disconnected, by the time the truck traveled three miles at 55 m.p.h., the CO level inside the cab was insignifi
A final body of evidence which relates to the operating condition of the truck is the truck’s mileage record and the record of the weather conditions preceding the accident. From November 21 to the accident, the truck was driven 1301 miles. From Rainwater’s testimony, the exhaust leak existed before November 21 and may well have existed throughout its entire 12,924-mile history. There were other cold days in November and December of that year. From this circumstantial evidence, noticeable symptoms of CO poisoning by occupants of the truck would most probably have been reported if the truck presented the dangerous potential for high levels of CO which the plaintiffs assert.
The weight of the evidence regarding the mechanical functioning of the vehicle therefore falls short of demonstrating a rich running engine and corresponding dangerous levels of CO inside the truck cab throughout the morning of the accident. Nevertheless, plaintiffs insist that the unusual circumstances of the accident itself demonstrate that CO could have been the only cause for the accident. Since, as stated above, there is circumstantial evidence for the possibility for rich combustion and Eric’s exposure to CO while the truck was left idling on l^the morning of the accident, we have additionally reviewed the unusual circumstances of the accident.
The accident reconstruction experts for both sides agreed that the description of the accident as witnessed by Kesee and the tracks of the vehicle as it left the pavement indicate an unconscious driver, whether due to falling asleep or CO intoxication. From all the circumstances of this case, we cannot conclude when comparing these two unusual scenarios- — sleep or CO poisoning — that the possibility of either tends to exclude the other.
One large piece of the puzzle is Eric’s condition leading up to the accident. Eric testified that on the morning of the accident he did not feel dizzy or nauseated or suffer from a headache. He likewise did not report being tired or sleepy upon finishing his mid-morning snack immediately prior to the accident. He reported a lack of memory of his driving of the vehicle from a time shortly after leaving the gas station as he began the trip along the rural highway to Farmerville. The last thing he
From this evidence, there is no sign of either a sleepy or intoxicated driver. We cannot attribute Eric’s lack of memory to a diminished state of consciousness. While symptoms of CO poisoning present differently from individual to individual, the expert toxicologists indicated that CO poisoning can produce a type of semi-consciousness and momentary lapse of consciousness, like one fighting sleep. Nevertheless, Eric negotiated the hills and turns of the rural road and ^responded to other traffic up until the immediate few seconds before the accident. The change from normal driving to the abnormal sudden occurrence in this case is difficult to understand from either the scenario of sleep or CO intoxication.
The plaintiffs’ insistence that CO was the cause of this accident rests heavily on the following circumstantial evidence. First, Kesee reported no sign of Cecil as he followed the pickup for many miles. Kesee at one point maneuvered to begin passing the Masters’ vehicle only to fall back as Eric increased his speed, but he never saw Cecil inside the cab. The circumstance of Erie being a new fifteen-year-old driver likewise raises the inference that both father and son might be more attentive and cautious on the highway. Next, the testimony of Anding, the nurse, reported Cecil’s bright red blood. This according to the toxicologists is indicative of excessive carboxyhemoglobin in the blood. The plaintiffs also produced testimony from persons noting Cecil’s and Eric’s reports of headaches. Finally, despite the competing testimony of the forensic pathologists, the plaintiffs urge that Cecil’s autopsy indicates that some cause other than the physical injuries to Cecil’s chest contributed to his death. Recording to plaintiffs, that cause as proven by this body of circumstantial evidence is CO poisoning.
In considering circumstantial evidence, our supreme court has stated:
It is an elementary proposition that causation may be proved by circumstantial evidence. In many instances, it can be proved only by such evidence. Taken as a whole, circumstantial evidence must exclude other reasonable hypotheses with a fair amount of certainty. This does not mean, however, that it must negate all other possible causes.
Lombard v. Sewerage and Water Bd. of New Orleans, 284 So.2d 905, 918 (La.1973). See also, Aetna Life and Casualty Company v. Solloway, 25,462 (La.App.2d Cir.1/19/94), 630 So.2d 1353.
From our consideration of the circumstantial evidence offered by plaintiffs, we are not persuaded by either the evidence of Cecil’s and Eric’s prior symptoms | ¡^nor the opinion of Dr. McCormick. The reports of headaches and lethargy did not significantly indicate that those symptoms were out of the ordinary from normal health discomforts. The autopsy report was performed on a badly decomposed body and therefore could not fully explore the possibilities of other injuries which may have contributed to Cecil’s death. In sum, the inferences which can be drawn from all of plaintiffs’ evidence do not sufficiently suggest CO poisoning as the cause of the accident. When considered with the automotive evidence concerning the narrow possibility for excessive CO in the truck cab, plaintiffs’ case remains in doubt.
Finally, the most significant and undisputed evidence concerns the critical timing for the accident. In the last 250 feet as the truck drifted over into the oncoming lane of traffic, left the pavement, and hit the tree, the elapsed time was between four and five seconds. Upon leaving the
Conclusion
Despite the critical withholding of evidence of the exhaust leak which tainted the jury’s verdict, our de novo review of the evidence for this puzzling accident requires us to conclude that the possibility of CO poisoning does not preponderate above other reasonable hypotheses for the cause of the accident. The plaintiffs’ case resting largely upon circumstantial evidence, we are not convinced that CO poisoning caused this accident, and we affirm the trial court’s judgment. Costs are assessed to appellants.
AFFIRMED.
BROWN, J., concurs and dissents with reasons.
. Plaintiffs claim that despite these interrogatories and a request for production of documents, the November 21 Service Order was never revealed until Courtesy’s service manager, Bill Dabbs, mentioned Rainwater’s work and the missing Service Order in his deposition in late 1993. The deposition was
. Whether Courtesy was required to answer interrogatory number 11(b) concerning Rainwater’s reason for ordering the EGR tube was not made an issue in Courtesy's response to the interrogatory. Once Courtesy elected to disclose a reason, it could not state a misleading reason contrary to Rainwater's actual purpose.
Concurrence in Part
Concurring and Dissenting.
I concur with the majority that Rainwater’s statement was improperly withheld from plaintiffs after a request for its production. Under the circumstances of this case, it was admissible as evidence and could have affected the jury’s conclusion.
Rainwater’s affidavit was presented by plaintiffs in support of their motion for a new trial. In it, Rainwater states that he is available and willing to give testimony. His credibility would be important and that would be best assessed after direct and cross examinations. Further, Rainwater’s observations may impact conflicts between the experts who only tested the truck after the accident. For example, was it a rich running engine and what did Cecil Masters specifically say about the exhaust problem?
I further disagree with the majority’s conclusion after a de novo review that the accident was caused by Eric’s inattention. After considering the physical evidence and the manner Eric drove before the accident, all the experts believed that Eric lost consciousness. The finding by the majority that Eric was inattentive is speculation.
The defense claimed at trial that there was no exhaust leak. The misconduct by the defense in withholding the critical statement by Rainwater and the statement contradicts this claim. According to Rainwater there was an exhaust leak. The majority opinion agreed but found that the leak did not invade the cab. Even defendants experts, however, testified that upon disconnecting the EGR tube CO levels inside the cab would increase to some degree, but, unless it was a rich running engine, not to a dangerous proportion. Plaintiffs presented several witnesses who stated that Cecil Masters complained of symptoms which are consistent with CO exposure. Plaintiffs’ expert, Dr. Stafford, explained that because of CO exposure the body works harder to get oxygen and a person may [ gdrift off to sleep. The pertinent question is what part the CO exposure played in causing Eric to fall asleep or lose consciousness.
Rehearing
ON REHEARING
On Rehearing.
Initially, the jury reached the factual question of causation and, finding none, needed to go no further. A reviewing court must accord great deference to the trier’s factual decision unless it is clearly wrong or, as in this case, untrustworthy because of the exclusion of material evidence. On rehearing, we reaffirm our original conclusions that the jury’s verdict is to be afforded no deference and, with the inclusion in the record of the previously sealed statement of Randy Rainwater, that causation can and should, in the interest of judicial economy, be decided de novo by this reviewing court. It is here, however, where we depart from our original opinion, find a causal connection and address its legal consequences.
CAUSATION
Less than five months after Cecil Masters purchased a new 1989 Ford F-250 pick-up truck, it was returned to the dealer because of problems. The truck had been driven 11,623 miles and was under warranty. Randy Rainwater, a mechanic for Courtesy Ford, examined the truck. Rainwater found an exhaust leak at the fitting for the Exhaust Gas Recirculator (“EGR”) tube and the EGR valve. He ordered a new EGR tube only after his attempt to tighten the connection between the tube and the valve failed to stop the leak. This occurred on November 21, 1989. On the morning of December 4, 1989, this fatal accident occurred. It was a cold morning, the truck’s windows were up and the heater was on. At times the truck was stopped and idling. Over a month after the accident, Courtesy Ford advised Cecil Masters’ widow by telephone that the EGR tube had arrived.
On May 3, 1990, Rainwater gave a recorded statement to an adjuster investigating the accident for U.S. Fidelity and Guaranty Insurance Company, the insurer of the dealer, Courtesy Ford. In answering discovery, Courtesy Ford responded that “statements were taken from Courtesy Ford employees which are [2privilege[d]” and included Rainwater’s name in a general list of employees. Only after trial started did plaintiffs discover the full extent of Rainwater’s involvement and that he had been interviewed by the adjuster. The trial court denied plaintiffs’ request for a copy of the transcript of Rainwater’s statement, finding that it was the work product of defense counsel. Even so, plaintiffs attempted to offer the statement, which they did not have, into evidence because Rainwater could not be found to testify. Plaintiffs’ offer was denied; however, a transcript of the statement was sealed and filed for the benefit of this reviewing court.
On appeal, this court found that the trial court abused its discretion in not allowing plaintiffs to have a copy of the transcript. Further,- this court found that Rainwater’s statement should have been admitted into evidence as a declaration against interest by a Courtesy Ford employee who was unavailable to testify. Both plaintiffs and defendants had tried unsuccessfully to locate Rainwater. With the inclusion of the statement, this court considered the record complete and in the interest of judicial economy, reviewed the facts de novo.
Defendants, Courtesy Ford and Ford Motor Company, claimed at trial that there was no leak but, even if there was, that no significant amount of exhaust gas spread into the cab of Masters’ truck. Rainwater’s statement, however, constituted direct evidence that there was an exhaust leak at the fitting between the tube and valve. In his statement, Rainwater emphasized that, because of the leak, the customer, Cecil Masters, should have been warned of the danger of carbon monoxide exposure. Specifically, he believed that Masters should have been told that “if you
1,.¡Considering Rainwater’s statement, corroborated by the fact that Courtesy Ford ordered an EGR tube and that the experts found an overload fracture at the connection on the EGR valve, the evidence is compelling that there was an exhaust leak. Plaintiffs’ expert, Dr. Stafford, explained that carbon monoxide causes the body to work harder to get oxygen and that a person exposed to it may drift off to sleep. What part carbon monoxide played in causing the 15-year-old driver, Eric Masters, to fall asleep or lose consciousness is an essential hurdle that must be cleared. Because it was error for the trial court to have excluded Rainwater’s recorded interview, the jury’s answer to this question, which was decided without this critical evidence, was untrustworthy.
The circumstances of this accident strongly support the conclusion that carbon monoxide played a significant role in causing this incident. The state police investigator believed that the driver had fallen asleep. He was at the scene immediately following the accident and found no skid marks or other evidence of evasive action.
Lynn Kesee, a truck driver, followed the Masters vehicle for about eight miles and noted that after passing through Rocky Branch, the Masters truck did not resume speed, and, about a half a mile down the road, on an uphill stretch, in a no-passing zone and without any apparent reason, the Masters vehicle drifted across the yellow center line into the left lane, where it traveled between 50 and 60 yards before taking a shallow departure angle off of the highway, then traveled another 100 feet along the ditch before colliding with a tree. Kesee testified that at no time did the driver of the Masters vehicle attempt to stop or change its course. In fact, Kesee said the driver never moved in the cab of the vehicle.
Kesee’s observations were corroborated by Robert LaCage who was following Kes-ee and saw the Masters vehicle just after it left the road. Both Kesee and LaCage caught up and passed the Masters vehicle before it struck the tree.
|4The passenger, Cecil Masters, was slumped down out of Kesee’s sight the entire time that Kesee. was behind the truck. Eric Masters, who was upright while driving before the accident, was found slumped to the left, trapped against the driver’s side door. The steering wheel had been pushed into the driver’s seat. The obvious conclusion is that both passenger and driver were unconscious when the truck drifted across the road.
Terry Sue Anding, a registered nurse, was the first to render medical assistance at the accident site. She noticed that Cecil Masters’ blood was bright red, which is consistent with carbon monoxide asphyxia. Dr. Glennon, plaintiffs’ expert in accident reconstruction, opined that, based on the testimony, police report, and evidence of the driver’s failure to brake and the trajectory of the truck, the accident was caused by an unconscious driver. S.C. Walker, defendants’ accident expert, also stated that the path of the vehicle after it left the road was consistent with a driver who had gone to sleep.
Numerous witnesses gave testimony concerning the physical condition of Cecil Masters both before and at the time of the accident. Co-workers and his wife testified that a few weeks before the accident Masters had headaches and felt lethargic, which was unusual for him. One worker noticed that he was rubbing his temples and complaining of a headache on the morning of the accident. Both Roger Hearn and Jimmy Masters testified that several weeks preceding the accident, Cecil Masters was having headaches and tak
Approximately three years after the accident, plaintiffs had Cecil Masters’ body exhumed, and Dr. George McCormick, a forensic pathologist, performed an autopsy. Dr. McCormick believed that the traumatic injuries alone could not have caused Masters’ death. Specifically, he stated that the flail chest injury was not ¡.¡sufficient to have caused death. Dr. McCormick did not find a basilar skull fracture, which had been listed on the death certificate. Dr. McCormick believed that even if there had been such a fracture, without hemorrhaging (of which his-autopsy found no evidence), it would not have caused Masters’ death. Dr. McCormick concluded that the combined effect of carbon monoxide and the flail chest injury was the only reasonable explanation for Masters’ death.
Plaintiffs showed that passengers of an F-250 can be exposed to dangerous levels of carbon monoxide from a broken EGR valve when the engine is running rich. Defendants’ experts conceded that upon disconnecting the EGR tube, carbon monoxide levels inside the cab would increase to some degree, but, unless it was a rich running engine, not significantly. Obviously, they disagree on whether there was evidence of a rich running engine in the instant case.
According to Dr. McCormick, carbon monoxide can cause sleepiness at levels as low as 15 — 20%. Dr. Stafford, plaintiffs’ toxicologist, explained that a person breathing carbon monoxide “may just sort of drift off and go to sleep, become unconscious.”
Contrary to the safety instructions Rainwater believed should have been given to Cecil Masters, there was no ventilation in Masters’ truck on this cold morning as the windows were up and the heater was on. Considering all of these circumstances, we find that the only reasonable explanation for what occurred is that carbon monoxide from the exhaust leak induced Eric Masters to “drift off and go to sleep”and was a substantial cause of the accident. Having disposed of this threshold question, we will proceed to examine the liabilities of the parties.
Ford Motor Company
The Louisiana Products Liability Act (“LPLA”) establishes the exclusive theories of liability for manufacturers for damage caused by their products. La. R.S. 9:2800.52. The Act’s exclusivity eliminates a general negligence cause of | (¡action and limits redhibition rights to economic losses. La. R.S. 9:2800.53(5). See Draten v. Winn Dixie of Louisiana, Inc., 94-0767 (La.App. 1st Cir. 03/03/95), 652 So.2d 675.
As applicable in this case, the Act imposes strict liability on a manufacturer for damages proximately caused by an unreasonably dangerous characteristic of its product that existed when the product left the manufacturer’s control and arising from a reasonably anticipated use of the product. La. R.S. 9:2800.54.
The question presented in this case is whether the truck was made unreasonably dangerous by some error in its construction or assembly. The Act provides that a product is unreasonably dangerous in construction or composition if, at the time it left the manufacturer’s control, it deviated in a material way from ■ the manufacturer’s specifications or performance standards. La. R.S. 9:2800.55.
In Halphen v. Johns-Manville Sales Corporation, 484 So.2d 110 (La.1986), the supreme court held that a product was unreasonably dangerous when an unintended defect made the product more dangerous than it was designed to be. Thereafter, the LPLA was enacted and defined “unreasonably dangerous” as a material deviation from the manufacturer’s specifications or standards. The purpose of the mismanufaeture category is to protect consumers from unintended errors in
|7In our original opinion, we found that there was an exhaust leak at the connection between the EGR tube and the EGR valve. The break was not in the tube but on the valve threads. This was due to a fracture caused either by over tightening or because the flanges on the valve and tube were mismatched. The evidence convincingly ruled out the collision as a cause of the fracture. Plaintiffs’ expert metallurgist found that the fracture was from pulling apart or tearing rather than shearing. Further, there was no other damage to the tube or valve, as would have been expected if the collision had played any part in the fracture. Plaintiffs’ expert concluded that the threads were stripped by over tightening which caused enough damage or stress to eventually crack after some use.
The truck was purchased new; after a short time, the purchaser, Cecil Masters, returned the truck to the dealer and described problems which caused the dealer’s mechanic to look for an exhaust leak. Masters suffered symptoms of carbon monoxide exposure before bringing the truck back to the dealer. There was no evidence that any work, other than ordinary maintenance, had been done on the truck before it was brought to the dealer with the complaints. Finally, the dealer’s mechanic, Randy Rainwater, found the leak before he attempted to tighten the connection. The only reasonable explanation for the overload fracture is that it occurred during the manufacturer’s assembly process. See Hunt v. Ford Motor Company, 341 So.2d 614 (La.App. 2d Cir.1977).
As described by Rainwater, this defect made the truck more dangerous than intended and thus, was material. Before any serious problems or injuries occurred, however, the truck was checked by the dealer, Courtesy Ford, and the leak was found. Because a manufacturer is not liable for damages brought about by a later intervention of a separate, independent, superseding cause, we must discuss Courtesy Ford’s negligence and whether it was such a superseding cause.
| RCourtesy Ford
In pre-trial discovery, Courtesy Ford was vague in disclosing Rainwater’s involvement and claimed a work product exception in refusing to produce his statement. Because of the telephone call to Judy Masters after the accident, plaintiffs knew that an EGR tube had been ordered for the vehicle. In discovery answers, Courtesy Ford claimed that the EGR tube was ordered “because the buildup of carbon deposits results in poor engine performance.” At best, this answer was deceptive.
Ironically, finding the exhaust leak demonstrated Courtesy Ford’s competence, not negligence. Them fault, however, relates to whether warnings and safety instructions were necessary and, if so, whether they were given. A seller or dealer, as distinguished from a manufacturer, is not presumed to know the latent vices in the product. A retail truck dealer ordinarily owes a duty of reasonable inspection, but is not required to disassemble the vehicle or make a minute inspection for latent defects. We have found in this case that during the assembly process over tightening weakened the threaded area of the valve which eventually fractured after a short period of use. The
Courtesy Ford was informed by Cecil Masters of his problems with the truck. In this instance, the dealer discovered the defect and accepted the responsibility to correct the problem. It was in Rainwater’s statement that the seeds of an effective defense were sowed. Rainwater asserted that he always gave proper warnings, but he had no specific recollection of doing so with Cecil Masters. We have no record of what actually occurred when Masters picked up his truck. Courtesy Ford objected to the use of Rainwater’s statement and ^presented no evidence that Masters was warned of an exhaust leak and instructed to ventilate the cab of the truck until the ordered part was installed. Thus, we must find Courtesy Ford negligent.
Intervening Cause
A manufacturer of a product with an unreasonably dangerous characteristic will not be relieved of liability unless an intervening cause superseded the original negligence and alone produced the injury. Foreseeable, intervening forces are within the scope of the original risk. Rather than being framed in terms of proximate causation, this is a question of duty/no duty. That is, whether, as a matter of policy, we want to extend the manufacturer’s responsibility this far to cover these circumstances. Hunt, supra; Mendoza v. Mashburn, 99-499, 99-500 (La. App. 5th Cir. 11/10/99), 747 So.2d 1159.
In this case, the flaw or defect occurred during the assembly process and was a cause-in-fact of Eric Masters drifting off to sleep and the resulting fatal accident. After finding the leak, Courtesy Ford failed to notify the customer and give safety instructions. Had Courtesy Ford done so, the accident probably would not have occurred, or, at least, the customer would have had to bear all or a large part of the blame. Courtesy Ford’s negligence, however, was not deliberate, wanton or willful, nor was it extraordinary in character. Ford Motor Company set the chain of events in motion, while Courtesy Ford had the opportunity to influence the eventual consequences. As such, both parties must share responsibility. Accordingly, we apportion 60% to the dealer and 40% to the manufacturer.
DAMAGES
Once it has been determined that the trier of fact is clearly wrong, the appellate court is empowered by La C.C.P. art. 2164 to render any judgment which is just, legal and proper. Gordon v. Willis Knighton Medical Center, 27,044 (La.App.2d Cir.06/21/95), 661 So.2d 991, writ denied, 95-2776 (La.01/26/96), 666 So.2d 679. A court of appeal may award damages when the trial court initially rejects plaintiffs demands and where the record contains sufficient proof of damages. Id. In making an initial award of damages at the appellate level, we are not limited to an award of either the lowest or highest amount we would affirm; rather, we set the award in an amount which is just compensation for the damages revealed by record. Id.; Beckham v. St. Paul Fire & Marine Ins., 614 So.2d 760 (La.App. 2d Cir.1993) (citations omitted).
Wrongful Death
Cecil Master’s wife and two minor children seek damages for his wrongful death.
Love and Affection
The record reveals that Cecil and Judy Masters were married on March 2, 1973, and never separated or divorced. With their two children, Eric and Ashley, they shared a very close and loving family relationship. The family enjoyed many activities together, such as vacations, picnics, ball games and church. Every year the family had a portrait made, the last of which was made in July 1989, approximately six months prior to Cecil’s death.
Since he was a child, Eric Masters and his father fished and hunted together. Eric spent a lot of time with his father and frequently helped him with his work.
Ashley Masters, who as only 10 years old when this accident occurred, had |na very close relationship with her father. Judy Masters described Ashley as a “daddy’s girl.” The two went for donuts together every Saturday morning. Cecil often helped Ashley with her homework and school projects; he built things for her and often brought her gifts. He always gave her a special valentine and candy on Valentine’s Day.
Judy Masters testified that Cecil was a skilled craftsman who had built their first house and did maintenance. Judy further testified about how lonely it was without Cecil and that she missed his love, affection and companionship.
Considering that Cecil and Judy Masters shared a close relationship, we award her $200,000 in damages for loss of love and affection. See Baughman v. State, Dept. Of Transportation and Development, 28,369 (La.App.2d Cir.05/08/96), 674 So.2d 1063, writ denied, 96-1882 (La.11/01/96), 663 So.2d 690; Reid v. State, Dept. Of Transportation and Development, 25,778 (La.App.2d Cir.05/04/94), 637 So.2d 618, writ denied, 94-1415 (La.09/16/94), 642 So.2d 198.
Further, considering the closeness of Cecil and his children, Eric and Ashley, we award $100,000 in damages to each for their loss of love and affection. See Baughman, supra.
Loss of Support
Cecil Masters was 38 years old and in good health when he was killed in this accident. In 1984, he and his brother had started their own construction and remodeling company. Factors that should be considered when determining a proper amount to award for loss of support include the decedent’s earnings at the time of his death, his age and life expectancy, the decedent’s job security, the nature of decedent’s work, the decedent’s health pri- or to his death, the decedent’s relationship with his family, the decedent’s personal expenses and his past work record. Mackie v. Lalonde, 598 So.2d 521 (La.App. 1st Cir.1992), writ denied, 600 So.2d 682 (La.1992). Other factors to consider are the surviving spouse’s age j12and health, the minor children’s age, and the effects of inflation and the need to discount future earnings to a present day amount. Id.
Both sides presented evidence from economists representing the amount that should be awarded for loss of support. Plaintiffs’ expert, Dr. Charles O. Betting-er, testified that the total loss of earnings and earning capacity at the time of Cecil Masters’ death was $871,347 less $87,135 (10%) for personal consumption, for a total of $784,212. Dr. Bettinger used gross income, a retirement age of 65 and factored in future growth for Cecil’s business.
Defendants’ economist, Dr. Ernest Mos-er, testified that Cecil’s total loss of earnings and earning capacity was $295,656.24 less $44,000 (25%) for personal consumption, for a total of $251,656.24. Dr. Moser used net income, figured Cecil’s retirement age at 60 and did not factor in future growth.
In Harris v. Tenneco Oil Co., 563 So.2d 317, 326 (La.App. 4 Cir.1990), writ denied, 568 So.2d 1062 (La.1990), the Fourth Circuit wrote:
The basis for the use of net wages in formulating a base figure for wage losses is 26 U.S.C. Sec. 104 which exempts damages for personal injuries or sickness from federal income tax liability. The reasoning behind this rule is that earnings “before taxes are never truly available” to a plaintiff. Edwards v. Sims, supra[, 294 So.2d 611 (La.App. 4th Cir.l974)7. Nonetheless, we are aware there are countervailing considerations including 1) that future tax rates are uncertain and the manner in which a particular plaintiff may be affected by them is speculative and 2) that a tortfea-sor should not benefit from an advantage accruing from a collateral source. Reeves v. La. and Ark. Rwy. Co., 304 So.2d 370 (La.App. 3rd Cir.1974), writ denied 305 So.2d 123 (La.1974).
We are satisfied that the more equitable rule is to use gross wages. Thus, Edwards, Morgan[ v. Liberty Mut. Ins. Co., 323 So.2d 855 (La.App. 4th Cir. 1975)7 and Roundtree[ v. Technical Welding and Fabrication Co., Inc., 364 So.2d 1325 (La.App. 4th Cir.1978)7 are overruled insofar as each case requires using net wages.
| iSWe agree with the Fourth Circuit’s analysis and adopt the usage of gross wages in the calculation of a base figure for wage losses. We further agree that future growth should be factored into the assessment. We, however, are not in complete agreement with Dr. Bettinger’s figures. Based on the above, we award $488,556 in lost earnings and earning capacity.
Loss of Services
The loss of services element in a wrongful death damage action is an item of special damage that requires some measurable proof (i.e., more than a showing of potential loss) of. the value or replacement cost of the services. Dixon v. Mid-South Rail Corp., 580 So.2d 438 (La. App. 2d Cir.1991), writ denied, 584 So.2d 1160 (La.1991). Therefore, when the loss of a loved one’s services is claimed as a material, compensable loss, there must be an evidentiary basis to allow the trier of fact and the appellate court to reasonably evaluate or measure monetarily the claimed material loss. Id.,
In the case at bar, plaintiffs’ economist valued Cecil Masters’ loss of services to be $123,170 and defendants’ economist valued it at $44,000. The record clearly establishes that Masters possessed carpentry and general construction skills that should certainly establish in plaintiffs the right to recover for his loss of services. The evidence also showed that he built the first house he and Judy lived in after they got married. Cecil kept the yard in order and took care of any home improvement project that arose (i.e., just before his death he had started to repair the driveway).
We find that the loss of these services represents a material and compensable loss to plaintiffs, because, in the future, these services will have to be provided by a paid professional. As we find plaintiffs’ expert more reliable, we award plaintiffs $123,170 in damages for loss of services.
We also award plaintiffs $7,433.14 in funeral expenses.
| uSurvival Action
A court may award damages for the pain and suffering of the decedent when there is any evidence, however brief, of such affliction. Cannon v. Cavalier Corp., 572 So.2d 299 (La.App. 2d Cir.1990).
Personal Injury
The record establishes that Eric Masters sustained multiple orthopaedic injuries. He suffered displaced fractures of both femurs, a reverse Colies fracture of the right distal wrist, a fracture of the left hand, multiple bone fragments in the right patella, a fracture of the right fibula, a fracture of the right heel bone and various lacerations and contusions. Eric’s doctor, Dr. C.R. Hand, determined that he had a 29% disability to the body as a result of his orthopaedic injuries. Eric underwent multiple surgeries and will suffer from pain and arthritic problems for the rest of his life.
As a result of the injuries Eric Masters sustained in this accident, we award him $300,000 in general damages and $61,-018.73 in medical expenses. See Roberts v. State, Through DOTD, 576 So.2d 85 (La.App. 2d Gir.1991); Tucker v. Finder, 93-563 (La.App. 3d Cir.02/02/94), 631 So.2d 735, writs denied, 94-0515, 94-0547 (La.04/07/94), 635 So.2d 1138; Bordelon v. South Central Bell Telephone Co., 617 So.2d 1337 (La.App. 3d Cir.1993).
SANCTIONS
In this court, plaintiffs filed a motion against defendants seeking sanctions and alleging a deliberate pattern of lying and presentation of false evidence.
115In Peterson v. Gibraltar Savings and Loan Association, Inc., 98-1601, 98-1609 (La.09/03/99), 751 So.2d 820, the Louisiana Supreme Court granted rehearing solely on the issue of whether sanctions should be imposed on the defendants and their attorneys for failure to disclose the existence of an excess insurance policy. The information was not provided until after the appellate judgment. The supreme court cited jurisprudence that courts are vested with the inherent powers to manage their own affairs and to achieve the orderly and prompt disposition of cases and that sanctions, including contempt proceedings and/or the assessment of attorney fees and costs, could be imposed on attorneys who wilfully failed to disclose discoverable materials. In Peterson, the court found it necessary to remand the case to the district court for a contradictory hearing to determine what, if any, sanctions were appropriate. The court stated that the scope of the hearing should encompass all issues relevant to the nondisclosure of the excess policy.
Peterson is similar to the instant case in that we are faced with a claim for sanctions that could not have been raised until after the case was on appeal. Furthermore, another parallel appears to be that additional evidence is necessary in order to determine whether or not sanctions are appropriate.
We therefore remand this matter to the district court with instructions to conduct a hearing in which defendants and their attorneys are ordered to show cause why they should not be held in contempt of court and/or sanctioned for discovery violations.
DECREE
IT IS ORDERED, ADJUDGED and DECREED that there be judgment in favor of Judy Masters in the full sum of $819,159.14; in favor of Ashley Masters in the full sum of $100,000; and in favor of Eric Masters in the full sum of $461,018.73 ($100,000 plus $361,018.73) and against defendants in the following | ^proportions: Courtesy Ford and its insurer, U.S. Fidelity & Guaranty Insurance Company, 60% and Ford Motor Company, 40%. All
IT IS FURTHER ORDERED that this matter be remanded to the trial court for a determination of whether sanctions are appropriate.
All costs both below and in this court are assessed against defendants.
CARAWAY and KOSTELKA, JJ„ dissent for the reasons set forth in the original opinion.
. We note that both children are now majors. Ashley Masters was still a minor at the time of trial.
