ROLAND L. BELSOME, Judge.
On May 21, 1999, August and Juli Guillot and their three-year-old daughter, Madison, entered Juli's 1999 Jeep Grand Cherokee in preparation to drive from their home in Violet, Louisiana to the North Shore Regional Medical Center in Slidell. Juli was nine months pregnant with a boy, who August and Juli had named Collin. After the three of them were seated in the vehicle, August shifted the vehicle into reverse, and Madison, who was in the back seat, asked for a songbook. To accommodate Madison's request, Juli exited the vehicle, closed the front passenger door, and opened the rear passenger door to reach for Madison's book. Remembering that some phone calls might need to be made, Juli asked August to retrieve their cell phone. August exited the vehicle
As Juli was bending over to retrieve the songbook, she looked up through the passenger window and noticed that August had passed the driver's side rear door. Juli then felt the door of the Jeep pressing against her arm and midsection. Juli screamed for August as she became pinned between the door of the Jeep and a brick column supporting the carport. Realizing that Juli was in severe distress, and noticing that the Jeep was moving backwards, August re-entered the vehicle, stepped on the brake, and pulled forward. Juli collapsed and began to experience severe pain, nausea, and weakness, and could feel Collin kicking inside of her. Juli was suffering from massive internal bleeding.
As a result of Juli's midsection being crushed between the door of the Jeep and the column, Collin had perforated the top of Juli's uterus and was pushed into her abdominal cavity. Juli required surgery to remove Collin from her abdomen, and also to cut her pericardial sac to determine whether her heart had been damaged by Collin's displacement, as a contusion in that area was detected. Juli was hospitalized for five days following the accident, and Collin had to be placed on life support. Collin was permanently brain damaged due to lack of oxygen. After seventeen days, August and Juli made the difficult decision, along with their physician, Dr. Jane Reynolds, to remove Collin from life support on June 7, 1999.
On June 9, 1999, local counsel for Chrysler LLC faxed a copy of the Guillots' accident report to Chrysler headquarters.
On July 13, 2001, Juli received a telephone call from a Los Angeles Times reporter who had investigated complaints on Jeep Grand Cherokees and noticed an article regarding her May 21, 1999 accident from the Associated Press. The reporter described his Times article detailing the
On April 10, 2008, the trial court rendered judgment on the jury's April 8, 2008 verdict, awarding total damages to Appellees in the amount of $5,080,000.00, allocating 99% of the fault to Chrysler, LLC and 1% to August Guillot. Juli Guillot was awarded, before the 1% reduction, $2,775,000.00; August Guillot was awarded $2,100,000.00; and to August and Juli Guillot as tutors of their minor child, Madison Guillot, $125,000.00. The court also awarded special damages and a survival action for Collin in the amount of $80,000.00.
In the first assignment of error, Chrysler asserts that the trial court erred in failing to find that the Guillots' claim had prescribed. It is undisputed that the petition is prescribed on its face,
This Court has recognized that "[prescription will not begin to run at the earliest possible indication that a plaintiff may have suffered some wrong." Hoerner v. Wesley-Jensen, Inc., 95-0553, pp. 3-4 (La.App. 4 Cir. 11/20/96), 684 So.2d 508, 510 (quoting Jordan v. Employee Transfer Corp., 509 So.2d 420, 423 (La.1987)). Rather, prescription begins to run against a claimant when he obtains actual or constructive knowledge of facts indicating a cause of action. Campo v. Correa, 2001-2707, pp. 11-12 (La.6/21/02), 828 So.2d 502, 510. Constructive knowledge of facts "is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry." Campo, 2001-2007, p. 12, 828 So.2d at 510-11. Constructive knowledge is also "tantamount to knowledge or notice of everything to which a reasonable inquiry may lead," and is sufficient to commence the running of prescription. Id., p. 12, 828 So.2d at 511. Mere apprehension that something could be wrong, however, is not considered constructive knowledge sufficient to begin the running of prescription. In re Medical Review Panel of Howard, 573 So.2d 472, 474 (La.1991); Cordova v. Hartford Accident & Indemnity Co., 387 So.2d 574, 577 (La. 1980).
The doctrine of contra non valentem agere nulla currit praescriptio, an exception to the rule that prescription runs against all persons unless provided by legislation,
Chrysler argues that the doctrine of contra non valentem is inapplicable to suspend prescription in this case because the Guillots were aware on the date of the accident the facts upon which their cause of action was based. Specifically, Chrysler argues that the Guillots' delay in filing suit was not reasonable, because although the Guillots may not have immediately known the cause of the delayed movement, the Guillots knew on the date of the accident that their Jeep moved in reverse after a delay.
We find that the Guillots' claim is similar to the claims alleged by the plaintiff in Hoerner v. Wesley-Jensen, Inc., 95-0553, 684 So.2d 508. In Hoerner, the plaintiff developed ulcerative keratitis, a severe eye infection, necessitating a corneal transplant, as a result of allegedly defective extended-wear contact lenses. Ms. Hoerner purchased the extended-wear lenses in November 1986, developed the infection in May 1987, and received the corneal transplant in July 1987. In November 1989, Ms. Hoerner reviewed a magazine article regarding the connection between the use of extended-wear lenses and the significantly increased risk of eye infections. This Court found that at the time Ms. Hoerner read the article, she first became aware that her 1987 infection resulted from the use of the extended-wear contacts.
Neither of Ms. Hoerner's physicians suggested a connection between her extended-wear lenses and her infection, and Ms. Hoerner simply assumed "she was the unfortunate recipient of a ubiquitous germ like one who contracts measles or a cold." The Defendants argued that the causal relationship between contact lenses and ulcerative keratitis was widely evident prior
Although Ms. Hoerner knew she had suffered an injury in July 1987, "her reasonable inquiry as to the cause of her infection and injury resulted in her being told only that the harm had been caused by a particular bacteria present throughout the environment." Id. at 514. Accordingly, because "a prescriptive period does not begin to run until a claimant has knowledge of the damage,
Like the plaintiff in the Hoerner case, the Guillots had no reason to suspect anything other than an unfortunate mistake on the part of Mr. Guillot. When questioned why he assumed he left the vehicle in reverse rather than immediately suspecting a defect, Mr. Guillot testified, "It's the only thing I could think that happened."
Additionally, we find Appellant's reliance upon Eastin v. Entergy Corporation, 2003-1030 (La.2/6/04), 865 So.2d 49 is misplaced. Eastin involved an age discrimination claim by hundreds of employees against their former employer. Eastin, pp. 1-2 (La.2/6/04), 865 So.2d 49, 51-52. The plaintiffs sought class certification, and filed several supplemental and amending petitions. Eastin, p. 2, 865 So.2d at 52. The Defendants filed exceptions of prescription as to eleven plaintiffs ("Eleven Plaintiffs"), arguing that the eighth supplemental and amending petition contained no allegation as to when the Eleven Plaintiffs knew or should have known of their claim, and the trial court granted the exception. Id. at p. 3, 865 So.2d at 53. The Eleven Plaintiffs appealed and the appeals court reversed, finding that the doctrine of contra non valentem was applicable. Id. The Louisiana Supreme Court reversed, finding that "it is well settled that the damage is sustained in any employment discrimination case at the earlier of the date the employee is informed of his termination or his actual separation from employment." Id. at p. 3, 865 So.2d at 53.
The Court rejected the Eleven Plaintiffs' argument that they could not know of the discrimination until they knew of the alleged pattern of discrimination whereby others were also terminated for age-related reasons, and learning of others' lawsuits. Eastin, p. 7, 865 So.2d at 55. The Court noted that the appropriate standard "does not revolve around the knowledge of others who have filed suit, but relates to the plaintiff's reasonableness." Id. at p. 8, 865 So.2d at 56. The Court distinguished the Eleven Plaintiffs' employment discrimination claims from medical malpractice actions, in which plaintiffs may be prevented from knowing of their damages because the damages are manifested at a later date. Id. The Court concluded that the Eleven Plaintiffs' delay in filing suit was not reasonable, as actual knowledge of the termination gave rise to their cause of action and began the running of prescription. Id.
The facts of the instant case are plainly distinguishable from Eastin.
We are likewise unpersuaded by Chrysler's argument that Allstate Ins. Co. v. Fred's Inc., 2009-2275 (La.1/29/10), 25 So.3d 821, renders contra non valentem inapplicable to the facts of the instant case. In Allstate, the Louisiana Supreme Court noted that "Allstate's two-year delay between its discovery request and its motion to compel, plus an additional year before adding Colony [Insurance Company, the insurer of L & L Import, the manufacturer of an allegedly defective lamp] to the suit, evidences a lack of due diligence on the part of Allstate, precluding application of the contra non valentem doctrine." Id. Thus, the Court simply concluded that Allstate displayed a lack of due diligence in failing to determine L & L Import and Colony's identity until two years after propounding discovery, and another year after that before adding Colony to the lawsuit. The facts of Allstate are plainly inapposite to the facts of this case. This assignment of error lacks merit.
In the second and third assignments of error, Chrysler argues that the trial court improperly declined to exclude Gerald Rosenbluth's expert opinion and did not consider Daubert/Foret evidence in connection with Mr. Rosenbluth's testimony. Chrysler further objects to the trial court's admission of Mr. Rosenbluth's demonstrations regarding the gear shift; the trial court's admission of reports of other accidents involving Jeep Cherokees; and the trial court's admission of James Williams' opinions regarding the corporate conduct of Chrysler and its counsel subsequent to the Guillots' accident.
In Lam v. State Farm, this Court held that a trial court's failure to hold a Daubert
Additionally, this Court has held that "[a] trial judge has wide discretion in determining whether to allow a witness to testify as an expert, and his judgment will not be disturbed by an appellate court unless it is clearly erroneous." Laura's Products, Inc. v. 600 Conti Street, LLC, 2007-0819, p. 10 (La.App. 4 Cir. 4/9/08), 982 So.2d 934, 940 (citing Radlein v. Holiday Inns, Inc., 07-0322, p. 7 (La.App. 4 Cir. 11/14/07), 971 So.2d 1200, 1205); see also Lam, 2003-0180, p. 5, 901 So.2d at 565 (recognizing that "absent clear error, the trial court's decision regarding the testimony of an expert will not be reversed on appeal"). Mr. Rosenbluth testified that he has been qualified as an expert regarding his methodology hundreds of times in state and federal court in the past thirty years, and that he had been an expert with regard to the particular transmission systems at issue in the instant case on over 120 occasions. Although not an engineer himself, Mr. Rosenbluth also testified that his methodology was analogous to that used by engineers at the NHTSA, the federal government's Vehicle Research Testing Center, and also General Motors, Ford, and Chrysler. Moreover, Chrysler was afforded the opportunity to cross-examine Mr. Rosenbluth. Accordingly, we find no manifest error in the trial court's admission of Mr. Rosenbluth's expert opinion after conducting the requested Daubert hearing.
Next, Chrysler argues that Mr. Rosenbluth's methodology was improper because he intentionally manipulated the gearshift from park to reverse in order to achieve the desired result.
It is well-settled that a trial court is allowed great discretion in assessing the probative value of evidence pursuant to La.Code Evid. Art. 403. Gurley v. Encompass Ins. Co. of America, 2007-1477, p. 3 (La.App. 4 Cir. 5/14/08), 985 So.2d 299, 302. "Upon review, the trial court's rulings on issues such as the relevance of evidence and whether the probative value of relevant evidence is substantially outweighed by its prejudicial effect should not be disturbed absent a clear abuse of discretion." Id. at pp. 3-4, 985 So.2d at 302 (citing Jones v. Peyton Place, Inc., 95-0574, pp. 11-12 (La.App. 4 Cir.
With regard to evidence regarding other similar incidents ("OSIs"), Chrysler argues that the trial court erred in allowing Mr. Williams to present evidence of numerous customer complaints to Chrysler regarding incidents involving Jeep Cherokees. Chrysler argues that the trial court erred in allowing Mr. Williams' testimony regarding these OSIs without questioning him as to the substantial similarity
It is well-settled that "a trial judge is accorded discretion under [La.Code Evid. arts. 401-403] concerning the admission of evidence on the grounds of relevance, and the trial court's decision will not be reversed absent a finding of abuse of discretion." Brodtmann v. Duke, 96-0257, p. 12 (La.App. 4 Cir. 2/11/98), 708 So.2d 447, 455 (citing Dixon v. Winn-Dixie Louisiana, Inc., 93-1627 (La.App. 4 Cir. 5/17/94), 638 So.2d 306, 312); see also Gurley, 2007-1477, pp. 3-4, 985 So.2d at 302. While we agree with Chrysler's contention that properly submitted "other accident" evidence must be substantially similar to the accident at issue,
In this case, the record evidences, and the trial court found, that Mr. Rosenbluth laid a foundation which established a substantial similarity between the OSIs and the Guillots' accident, because in each instance, the transmission was identical to the transmission that was in the Guillots' Jeep Grand Cherokee. Mr. Rosenbluth testified regarding his inspection of the Guillots' vehicle as well as several park-to-reverse accidents where he inspected the vehicle and the accident scene.
The trial court also admitted a February 2003 report from the National Highway Traffic Safety Administration's ("NHTSA") Vehicle Research Testing Center ("VRTC") in East Liberty, Ohio, in which Jeep Grand Cherokees ranging from 1993 to 1999 were tested regarding the unintended powered reverse problem.
Furthermore, although Chrysler argues that the new shift selector in 1999 Jeep Grand Cherokees distinguishes it from other vehicles such that the OSIs were improperly admitted, the record demonstrates that the NHTSA found that the 1999 shift selector did not eliminate the potential to have an unintended powered reverse on a Jeep Grand Cherokee. Chrysler's expert, Mr. Keefer, testified that he did not dispute the NHTSA's findings in this respect:
Considering the foregoing, we do not find that the trial court abused its discretion in admitting OSI demonstrations and testimony on the basis of substantial similarity. Likewise, we find that the probative value of such evidence outweighed any prejudicial effect. See Gurley, 2007-1477, pp. 3-4, 985 So.2d at 302.
Next, Chrysler argues that the trial court erred in admitting irrelevant and prejudicial evidence of alleged negligence and wrongdoing by Chrysler and its attorneys. Appellees' expert, James Williams, testified regarding other accidents that had been investigated by Chrysler, as well as Chrysler's corporate conduct with respect to Jeep Grand Cherokee customer complaints received by Chrysler. Mr. Williams testified that, up until the date of the Guillots' accident on May 21, 1999, Chrysler had received over 200 park-to-reverse customer complaints regarding the Jeep Grand Cherokee with the transmission that went into production in 1993. Of the 200 customer complaints that he reviewed, twenty-two were admitted into evidence. These twenty-two customer complaints were instances where Chrysler's investigators were able to successfully achieve the delayed engagement from placing the vehicle between park and reverse that had been alleged in the customer complaint. Additionally, each of the twenty-two vehicles involved in the customer complaints had the same transmission as the one in the Guillots' vehicle. As previously noted herein, we find no error on the part of the trial court in the admission of Mr. Williams' testimony with regard to the customer complaints or in admitting into evidence the twenty-two complaints in which the delayed engagement of reverse was achieved by Chrysler's investigators.
Likewise, we disagree with Chrysler's contention that the trial court erred in
In its fourth assignment of error, Chrysler argues that the trial court erred in admitting evidence establishing that Chrysler's New Orleans counsel faxed a copy of the Guillots' police report to Chrysler's Office of General Counsel on June 9, 1999. Chrysler submits that the document was introduced merely to inflame the jury, as counsel for Appellees noted that it was faxed on the same date that Collin was buried, and suggested that Chrysler's tracking of the Guillots' accident while the prescriptive period ran was evidence of Chrysler's awareness of a defect. Chrysler further argues that the incident report was inadmissible hearsay under La.Code Evid. Art. 803(8)(b)(i).
As recognized previously herein, a trial court is afforded vast discretion with regard to evidentiary rulings, and the court's decision to admit or deny evidence will not be disturbed on appeal absent a clear abuse of that discretion. Jones v. Peyton Place, Inc., 95-0574, pp. 11-12 (La.App. 4 Cir. 5/22/96), 675 So.2d 754, 763. Where improperly admitted evidence is merely corroborative and cumulative of other properly introduced evidence, it is considered harmless error. State v. Taylor, 2001-1638, p. 22 (La.1/14/03), 838 So.2d 729, 748. We find that even if the police report were improperly admitted, the error, if any, was harmless. The trial court noted that the fax was relevant not only to the issue of prescription, but also as evidence of Chrysler's possession of information regarding the Guillots' accident at the time it occurred. Therefore, we do not find that the trial court's decision to admit the police report constituted a clear abuse of the trial court's vast discretion. See Jones, supra; see also Brodtmann v. Duke, 96-0257, p. 12, 708 So.2d at 456 (emphasizing the trial court's vast discretion with regard to the admission of evidence on the grounds of relevance).
In its fifth assignment of error, Chrysler argues that the jury's verdict was
With regard to allocation of fault, great deference is afforded to trier of fact. Clement v. Frey, 95-1119, 95-1163, p. 7 (La.1/16/96), 666 So.2d 607, 610. "[A]llocation of fault is not an exact science, or the search for one precise ratio, but rather an acceptable range, and that any allocation by the fact finder within that range cannot be `clearly wrong.'" Foley v. Entergy La., Inc., 06-0983, p. 32 (La.11/29/06), 946 So.2d 144, 166. Only after making a determination that the trier of fact's apportionment of fault is clearly wrong can an appellate court disturb the award. Clement, 95-1119 at p. 7, 666 So.2d at 611. In determining allocation of fault, a jury is obligated to consider the nature of each party's wrongful conduct and the extent of the causal relationship between that conduct and the damages suffered. See Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 971 (La. 1985).
Upon a careful review of the record, we find that the jury's findings as to the allocation of fault are reasonable and were not an abuse of discretion. We disagree with Chrysler's alarmist assertion that the allocation of only a nominal degree of fault to August Guillot will serve as a disincentive to other drivers to act prudently before exiting their vehicles.
In the sixth assignment of error, Chrysler argues that the trial court erred in allowing the jury to award duplicative elements of general damages.
First, Chrysler argues that the trial court used a verdict form that over-itemized related items and thus allowed several elements of damages that were duplicative and not recoverable under Louisiana law. Chrysler submits that in addition to general damages, the jury also awarded August Guillot separate awards for his mental anguish and emotional distress, wrongful death, loss of consortium for Juli Guillot's injury, and his own lost enjoyment of life. Chrysler argues that each compensating emotional or mental injury to a plaintiff who was not physically injured is improper as a matter of law, and that at a minimum, the jury's $200,000.00 award for Mr. Guillot's lost enjoyment of life should be vacated.
With regard to Mr. Guillot's damages for loss of enjoyment of life, both Mr. Guillot and Lt. Lee
Accordingly, the jury could reasonably award damages for Mr. Guillot's loss of enjoyment of life as a result of his injuries,
Furthermore, loss of enjoyment of life may be listed as a separate item of damages pursuant to La. Civ.Code art. 2315.6 and the Louisiana Supreme Court's decision in McGee v. AC & S, 2005-1036, p. 6 (La.7/10/06), 933 So.2d 770, 774-75. Noting that "[c]ourts commonly list different elements of general damages, including mental anguish and physical pain and suffering, both past and future, separately," the McGee Court held that "allowing a separate award for loss of enjoyment of life would not offend the existing concept of general damages and would reflect the accepted method of listing elements of general damages separately." Id. (emphasis added). The Court further described the distinction between the loss of enjoyment of life and other types of general damages:
The Court also described the distinction between loss of enjoyment of life and loss of consortium, noting that "[l]oss of consortium is a harm to a relational interest which occurs when the other party to the relationship suffers physical harm (invasion of an interest or personality)."
Clarkston v. Louisiana Farm Bureau Cas. Ins. Co., 2007-0158, p. 38 (La.App. 4 Cir. 7/2/08), 989 So.2d 164, n. 15 (quoting McGee, supra).
While we are mindful of the McGee Court's language regarding awards to family members of the primary tort victim for loss of enjoyment of life, it is important to note that those principles are inapplicable to the particular facts of this case. The McGee Court commented that allowing a family member of a primary tort victim to recover for both loss of enjoyment of life and loss of consortium would be duplicative. McGee, p. 13, 933 So.2d at 779. To illustrate how the awards could be considered duplicative, the Court used the hypothetical of an injured husband and his (ostensibly non-injured) wife, noting that "a wife's claim that she is unable to engage in activities that she formerly enjoyed prior to her husband's injury, such as taking vacations, attending sporting events, or dancing, is compensated under loss of consortium and need not be compensated again under loss of enjoyment of life."
This case does not present such a scenario. Here, Mr. Guillot was compensated by the jury for loss of enjoyment of life "as a consequence of
Finally, and perhaps most significantly, McGee ultimately held that "whether or not loss of enjoyment of life is recoverable depends on the particular facts of the case, and should be left to the district court's discretion on a case-by-case analysis." Id. at p. 12, 933 So.2d 770 (emphasis added). Considering the horrific nature of
Chrysler further argues that Lejeune damages
Considering Chrysler's argument with regard to the Lejeune damages, it is important to note, as Chrysler acknowledges, that La. Civ.Code art. 26
In its final assignment of error, Chrysler argues that the jury awarded excessive general damages.
The well-settled standard of review for general damages is whether the trial court abused its discretion. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993). The trial court's discretion "is `great' and even vast, so that an appellate court should rarely disturb an award of general damages." Id. Although reasonable persons may disagree regarding an award of general damages in a particular case, "[i]t is only when an award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award." Id. Only if an abuse of discretion is found will the reviewing court refer to prior awards, and then only for the purpose of determining the highest or lowest point within the court's discretion. Logan v. Brink's, Inc., 2009-0001, p. 13 (La.App. 4 Cir. 7/1/09), 16 So.3d 530, 540 (citing Riley v. Maison Orleans II, Inc., 2001-0498, p. 11 (La.App. 4 Cir. 9/25/02), 829 So.2d 479, 487). For a trial court to have abused its vast discretion, the award "must be so high or so low in proportion to the injury or fault that it `shocks the conscience.'" Id.
We do not find that the trial court abused its vast discretion with respect to the general damage award, nor do we find that the award shocks the conscience. It is indisputable that the unique facts of this case are extraordinarily tragic. Additionally, the Louisiana Supreme Court has held that "[t]he determination of the severity of mental anguish of distress resulting from the death of another is a fact question which depends upon several components, including, but not limited to, the closeness of the ties between the parties, the degree of love in the relationship, and the length of the relationship." Herbert v. Webre, 2008-0060, p. 8 (La.5/21/08), 982 So.2d 770, n. 7 (citing Hill v. Shelter Mut. Ins. Co., 05-1783 (La.7/10/06), 935 So.2d 691, 695). The record evidences that the Guillots testified as to the extreme anguish and emotional suffering associated with making the determination to end Collin's
The Guillots' treating physician, Dr. Reynolds, also testified regarding his distinct recollection of the loving bond between the Guillots and their son Collin. Dr. Reynolds stated that he observed this bond and noted that in his general experience, the bond between parent and child is strengthened by technological innovations which allow parents to learn the sex of a child and thus choose names before birth, and to view ultrasound pictures that evidence the baby's appearance and features. As previously noted herein, an appellate court may not disturb a jury's finding of fact unless the record establishes that a factual, reasonable basis does not exist and the finding is clearly wrong or manifestly erroneous. Syrie v. Schilhab, 96-1027, p. 4 (La.5/20/97), 693 So.2d 1173, 1176.
Notably, the Louisiana Supreme Court recently reiterated the well-established principle that vast discretion is afforded to the factfinder in assessing the appropriate amount of both general and special damages, and is therefore entitled to great deference on review. Menard v. Lafayette Ins. Co., 2009-1869, pp. 7-9 (La.3/16/10), 31 So.3d 996, 1007 (citing Guillory v. Lee, 09-0075 at p. 14, 16 So.3d 1104, 1116; Wainwright v. Fontenot, 00-0492 at p. 6, 774 So.2d 70, 74). Accordingly, although a reviewing court may feel that its determinations are more reasonable, the Court emphasized that the trier of fact's conclusions should rarely be disturbed on review:
Id. (quoting Guillory, 09-0075 at p. 14, 16 So.3d at 1116-17; Perkins v. Entergy Corp., 00-1372 (La.3/23/01), 782 So.2d 606).
The Court then articulated a two-step process for an appellate court reviewing a jury's determination regarding special damages:
Id. at pp. 14-15, 31 So.3d 996 (emphasis in original).
Likewise, "[a]n appellate court on review must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently." Id. at p. 15, 31 So.3d 996 (citing Rosell, 549 So.2d at 844). Based upon the record as a whole, we cannot say that the jury's determinations were unreasonable.
For the foregoing reasons, the trial court's judgment is affirmed.
TOBIAS, J., concurs in part, dissents in part, and assigns reasons.
TOBIAS, J., Concurs in Part, Dissents in Part, and Assigns Reasons.
I agree with the majority that the doctrine of contra non valentem agere nulla currit praescriptio applies in this case. In my view, the facts support the application of the doctrine. A person such as Mr. Guillot would in almost all circumstances assume that he did not shift his automatic transmission into the "park" mode as he hurriedly left the vehicle to retrieve the cell phone that had been left inside the house. An ordinary person recognizes the excitement surrounding a woman entering labor and human nature directing speedy actions to get the woman to the health care provider for delivery of the child. Only when as a result of the newspaper reporter's inquiries were the plaintiffs' interests aroused that a defect in the automatic transmission and its gearshift lever may have been involved in causing the accident and injury did the prescriptive period commence to run.
I do, however, disagree with the majority's heavy reliance on cases dealing with medical malpractice to support the application of contra non valentem in this case. Medical malpractice cases are quite different from a products liability case such as the case at bar. A whole different line of jurisprudence has arisen to support contra non valentem in medical malpractice because of our statutory scheme addressing malpractice. Rather, I would reason from the specific facts of this case that adequately support the application of the doctrine for it is well-established in our jurisprudence that "[p]rescription does not run against one who is ignorant of the existence of facts that would entitle him to bring a malpractice action as long as such ignorance is not willful and does not result from his neglect." Young v. Clement, 367 So.2d 828, 830 (La.1979). The trial court was neither manifestly in error nor clearly wrong in finding that the plaintiff's case against the corporate defendants was not prescribed.
Although the preferred methodology in a jury case for handling a Daubert/Foret challenge to an expert's qualifications or opinion is a separate hearing rather than exposing the jury to the expert's possibly inadmissible opinion, I agree with the majority that the trial court's methodology is not reversible error. If an error exists in this case, it is harmless.
Likewise, I agree with the majority that the trial judge was well within his discretion in this case to admit evidence about other similar incidents involving Chrysler vehicles, recognizing the potential danger of prejudice and forcing and/or enticing Chrysler to explain how the other incidents were dissimilar and thereby needlessly expanding the length of the trial.
The assessment of one percent of the fault for the accident to Mr. Guillot by the jury is, however, an abuse of discretion, manifestly erroneous, and clearly wrong as a matter of law.
La. R.S. 32:145 states:
This statute is generally applied to public highways and roadways and has no direct application to vehicles located on private property such as where the Guillots' vehicle was located when Mr. Guillot exited the vehicle leaving the engine running, the keys in the ignition, and the parking brake unset. However, the statute does express the legislature's view
In Storey v. Parker, 13 So.2d 88 (La. App. 1st Cir.1943), the defendant, Mr. Parker, drove his automobile with an automatic transmission (a new technological innovation at the time) for servicing at a service station. He exited the vehicle, leaving the engine running, the vehicle in gear, and the parking brake unset in order to help his wife get out from the passenger seat. The car remained stationary for a few moments, but began to move forward after about a minute per the court's estimate. The moving vehicle struck and severely injured the plaintiff, Mr. Storey. The court concluded that the direct cause-in-fact (proximate cause at the time) of the accident "was the leaving of the control lever in high [in gear] by Mr. Parker while the motor was kept running and without the hand brake having been set." Id. at 94.
Storey, although somewhat dated by its age, expresses the duty of a person leaving a vehicle running and unattended on private property. La. R.S. 32:145 expresses the duty of a person on public property. The duty of the driver is the same. One does not leave a car running without in the very least setting the parking brake.
In this regard, it clear that Mr. Guillot was negligent; but no reasonable person could fix his comparative fault at a mere one percent. I find that the lowest percentage of fault that a factfinder could set Mr. Guillot's fault is at twenty-five percent and that is the percentage I would set in
I cannot agree that each plaintiff is entitled to $1,000,000 for the wrongful death of their infant son, Collin, who lived but 17 days. As a matter of law, our jurisprudence does not support that quantum; it is excessive, an abuse of discretion, manifestly erroneous, and clearly wrong.
The specific interrogatory answered by the jury read as follows:
This interrogatory in the context of the entire jury interrogatory form asks the quantum of damages, if any, for Collin's wrongful death. A thorough quantum search of our jurisprudence reveals that the highest reported award for a "lost chance of survival," equivalent to a wrongful death in this case, for an infant (eight months old) is $550,000, but was reduced to $500,000 by virtue of the $500,000 damage cap in medical malpractice. Raines v. Columbia Lakeland Medical Center, 05-0243, pp. 5-7 (La.App. 4 Cir. 1/4/06), 923 So.2d 170, 173-74.
An award for wrongful death is low for a person of young age and gradually increases as one ages, where abilities and relationships can be determined and assessed. See, e.g., Anderson v. New Orleans Public Service, Inc., 572 So.2d 775, 777-78 (La. App. 4th Cir.1990), rev'd in part and affd in part, 583 So.2d 829, 833-34 (La.1991).
Under our current jurisprudence, I find based upon the Guillots' testimony that the highest award that a reasonable factfinder could award for the death of a 17-day old infant is $500,000, and I would set that amount in this case. I would reduce each of the $1,000,000 awards to $500,000, to be reduced further by the comparative fault attributable to Mr. Guillot addressed above.
Additionally, I cannot agree that Mr. Guillot is entitled to recover for both loss of consortium and loss of enjoyment of life as set forth in the jury interrogatories. The recovery is duplicative. McGee v. AC & S, Inc., 05-1036, pp. 12-13 (La.7/10/06), 933 So.2d 770, 779. The Supreme Court said, "allowing family members to recover for both their loss of consortium and their enjoyment of life would be duplicative and would not be authorized by La. C.C. art. 2315(B)." Id. And recovery for "the loss of enjoyment of life suffered by the primary victim's family members . . . is duplicative of their wrongful death claim." Id., p. 14, 933 So.2d at 780. We are required to reverse to zero Mr. Guillot's $200,000 award for loss of enjoyment of life.
La. C.C. art. 2315.6 states:
This article is statutory authority for bystander or "Lejeune" damages. Per Lejeune v. Rayne Branch Hosp., 556 So.2d 559 (La. 1990), to recover bystander damages, (a) one must "either view the accident or injury-causing event or come upon the accident scene soon thereafter and before substantial change has occurred in the victim's condition . . .; (b) [t]he direct victim of the traumatic injury must suffer such harm that it can reasonably be expected that one in the plaintiff's position would suffer serious mental anguish from the experience . . .; (c) [t]he emotional distress sustained must be both serious and reasonably foreseeable to allow recovery,. . . going well beyond simple mental pain and anguish . . . [,]for the emotional injury . . . must be both severe and debilitating;" [and] (d) all claimants must have a close relationship with the victim. Id. at 570
Only an unborn child born alive is a person from the moment of conception "for whatever relates to its interests." La. C.C. art. 26; see also Wartelle v. Women's & Children's Hosp., Inc., 97-0744, pp. 12-13 (La.12/2/97), 704 So.2d 778, 784-85. It follows, therefore, that Mrs. Guillot's Lejeune damages cannot stand (being contained within other awards for damages by the jury). Further, a part of the damages to Mr. Guillot must be reduced to $200,000 as he did not witness actual injury to Collin, but rather only witnessed injury occurring to his wife. While I would not award Collin's sister, Madison, Lejeune damages for injury to Collin, I find the $50,000 set by the jury is an appropriate award under the circumstances for the emotional damages she sustained due to her witnessing injury to her pregnant mother. Thus in summary, I would reduce the awards of Lejeune damages to Mrs. Guillot to zero and to Mr. Guillot to $200,000, but maintain the Lejeune damages for Madison at $50,000, being the highest awards that our law will support on the facts of this case.
In all other respects, I agree with the majority's conclusions as the quantum of recovery to be reduced by the comparative percentage of fault of Mr. Guillot as I have found applicable above.
For the foregoing reasons, I respectfully concur in part and dissent in part from the decision of the majority.
1.) The trial court did not err in finding this products liability action was not prescribed.
2.) The trial court did not err in the manner in which it conducted the lengthy Daubert hearing.
3.) The trial court did not err in admitting expert testimony and other evidence which assisted the jury in finding Chrysler manufactured a defective product which caused the accident, and showed the hidden nature of the defect to a consumer as contrasted with Chrysler's extensive knowledge of the cause and severity of the defect for a comparative fault assessment.
4.) The trial court did not err in admitting into evidence the faxed accident report which demonstrated Chrysler had knowledge of the accident shortly after it occurred and showed Chrysler was carefully tracking the Guillots' accident prior to it being reported to Chrysler.
5.) The jury did not abuse its discretion in allocating 99% of the fault to Chrysler and 1% to August Guillot.
6.) The trial court did not err in permitting the jury to consider damages to August Guillot for his loss of enjoyment of life, to all Plaintiffs for Lejeune damages for witnessing Collin's injuries, and to Juli Guillot for her lost ability to bear additional children, and Chrysler waived any error by failing to object to the verdict form prior to its submission to the jury.
7.) The jury did not abuse its discretion in its award of damages to the Appellees, and Chrysler has waived any objection to allegedly excessive general damages other than wrongful death damages by failing to brief the issue.
Hoerner, 684 So.2d at 513.
Additionally, Lt. Lee testified at trial that he arrived at the hospital on the date of the accident to conduct an investigation and interview of Mr. Guillot, while Collin and Juli were being treated by physicians in the next room, witnessing Mr. Guillot's obvious emotional distress: