Ronald E. Corkern, III v. R. Allen Smith

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-1569

RONALD E. CORKERN, III

VERSUS

R. ALLEN SMITH AND STATE OF LOUISIANA, DEPARTMENT OF
PUBLIC SAFETY

*************
APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, DOCKET NO. 76997 A
HONORABLE ERIC R. HARRINGTON, DISTRICT JUDGE

**************
SYLVIA R. COOKS
JUDGE
***************

Court composed of Sylvia R. Cooks, John D. Saunders, Michael G. Sullivan, Judges.

Saunders, J., concurs in the result and assigns written reasons.

AFFIRMED.

Edward M. Campbell
1721 Washington Street
Natchitoches, Louisiana 71457
(318) 560-3027
COUNSEL FOR DEFENDANTS/APPELLANTS:
R. Allen Smith
Louisiana State Police

Edwin Dunahoe
Dunahoe Law Firm
402 Second Street
P.O. Box 607
Natchitoches, Louisiana 71458-0607
(318) 352-1999
COUNSEL FOR PLAINTIFF/APPELLEE:
Ronald E. Corkern, III

COOKS, Judge.

STATEMENT OF THE CASE

Trooper R. Allen Smith and the Louisiana State Police appeal a jury verdict in

favor of Ronald E. Corkern, III. For the reasons assigned below, we affirm the

judgment of the trial court.

STATEMENT OF THE FACTS

In May 2003, Ronald M. Corkern, III, age twenty-six, began experiencing

health problems which prompted him to seek medical treatment. It was discovered

he had only one kidney and that kidney was functioning at a severely reduced level.

Surgery was performed to create an “AV fistula” in his left arm as a port for kidney

dialysis. On May 27, 2003, Ron was discharged from the hospital with instructions

to exercise care to protect to the newly-created port.

Three days after his discharge, Ron received a frantic call from his girlfriend,

Melinda Thomas advising him her dogs were fighting and she was injured when she

attempted to intervene. Ron was nearby and he immediately got into his car to assist

her. When he pulled into her driveway and exited the car, he realized State Trooper

Allen Smith had been following him. The trooper approached Ron with his pistol

drawn. Ron tried to explain to the trooper his girlfriend was injured and he needed

to help her. Trooper Smith told him to put his hands where he could see them, which

Ron did. The trooper made no attempt to question Ron, ask for his driver’s license,

or obtain any other information. He simply walked up to the young man, grabbed his

left arm at the site of the fistula, threw him to the ground, and handcuffed him. This

entire incident was captured by the video camera which was installed in Trooper

Smith’s police vehicle. Ron was transported to the Natchitoches Parish Sheriff’s

Office where he was booked and released. By the next morning, Ron’s entire upper

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left arm was bruised and the fistula site was irreparably damaged. Three weeks later,

he was hospitalized and a second fistula site was created on his right arm.

Ron sued Trooper Smith and the State of Louisiana, Department of Public

Safety, alleging two theories of recovery: (1) the trooper used excessive force in

making the arrest; and, (2) the State was negligent in training, monitoring and

retaining Trooper Smith. Prior to trial, the Defendants filed motions in limine seeking

to exclude Trooper Smith’s personnel file and other evidence relating to his conduct

as a State trooper. The trial court denied the motion and this court denied the writ,

finding no error in the ruling of the trial court. Corkern v. Smith, 06-404 (La.App. 3

Cir. 3/23/06). Following trial, the jury awarded Ron $100,000 for physical pain,

$250,000 for mental pain and anguish and medical expenses of $8,500. Trooper

Smith and the State of Louisiana appeal asserting the following assignments of error:

1. The trial court erred in failing to bifurcate the trial and in admitting
evidence of other incidents of misconduct by Trooper Smith while in his
official capacity.

2. The trial court erred in failing to apportion any fault to Ron Corkern.

3. The trial court erred in allowing recovery of expert witness fees and
the cost of enlarging trial exhibits.

4. The trial court erred in failing to reduce the excessive damage award.

LAW AND DISCUSSION

Motion in Limine

Prior to trial the State filed a motion in limine seeking to exclude Trooper

Smith’s personnel record. The trial court denied the motion and this court denied

writs. The State now re-urges its argument on appeal. The State does not assert the

personnel file of Trooper Smith is inaccurate, presents a false representation of his

conduct as an officer or that the evidence is irrelevant to the issue of negligent hiring.

Instead, the State contends his record, which contains numerous reprimands and

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suspensions for misconduct, is highly prejudicial and inflamed the jury. The State

argues the prejudicial effect of the evidence substantially outweighs its probative

value. See La.Code Evid. art.403.

In response, Ron asserts this issue has already been resolved and is barred from

further review by the law of the case doctrine. Generally, the law of the case doctrine

applies to prior rulings of the appellate court and an appeals court will not reconsider

its own ruling in the same case. Gentry v. Biddle, 05-61 (La.App. 3 Cir. 11/2/05), 916

So.2d 347. However, the application of this doctrine is discretionary and an appellate

court may reconsider an issue if the prior decision was “palpably erroneous or its

application would result in manifest injustice.” Id. at 352 (quoting Griggs v.

Riverland Med. Ctr., 98-256, p. 6 (La.App. 3 Cir. 10/14/98), 722 So.2d 15, 19, writ

denied, 99-385 (La. 5/28/99), 735 So.2d 622). Alternatively, Ron argues this

evidence, although damaging to the State, is necessary for proof of negligence. We

agree.

Ron seeks recovery against the State under the tort of negligent hiring, which

is a theory of recovery recognized under La.Civ.Code art. 2315. Roberts v. Beniot,

605 So.2d 1032 (La.1991). A duty is imposed upon the State to exercise reasonable

care in the hiring, training, and retaining of its officers, who in the performance of

their duties, are likely to subject third parties to serious risk of harm. Id. Trooper

Smith’s personnel record is relevant and material to a determination of whether his

superiors were privy to and had knowledge of his job performance and whether the

State was negligent in hiring training, and retaining him on the force in light of his

employment history. In denying the motion in limine, the trial court recognized the

evidence was essential for a determination of this issue. The court stated:

In his petition, plaintiff has alleged that the Trooper was negligently
retained as a patrol officer, which falls under the theory of negligent

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hiring. To attempt to prove this theory, plaintiff must be able to review
the Trooper’s employment record with the State Police. Because of that,
the Court finds that the admission of its employment record for that
limited purpose outweighs any risk of prejudice to the jury, and the
Motion in Limine is denied. It will be the responsibility of the Court to
exercise its supervisory and authority on the admission of this evidence
as part of plaintiff’s case to see that the probative value outweighs any
prejudicial effect.

The jury instruction given by the trial court clarified that Trooper Smith’s

employment record was to be considered only with regard to the issue of negligent

hiring, not whether he used excessive force in making the arrest. The trial court gave

the following instruction:

The Court permitted the matters in Mr. Smith’s personnel history
as a Trooper to be admitted into evidence for the sole purpose of
allowing plaintiff to attempt to establish his allegation that the State of
Louisiana was negligent in allowing Mr. Smith to remain as a patrol
officer. You are not permitted to use Mr. Smith’s personnel history to
decide whether he used excessive force in this case. You may only use
the matters in his personnel history to help you determine whether the
State of Louisiana was negligent in allowing Mr. Smith to remain as a
patrol officer.

We have thoroughly reviewed the record and find no error in the decision of

the trial court allowing the evidence for the purpose of establishing negligent hiring

on the part of the State. Accordingly, we find no error in the ruling of the trial court

denying the motion in limine.

The State further contends the trial court should have bifurcated the trial on the

two theories of recovery so that the jury could have watched the video of the alleged

tort and determined whether the officer used excessive force before the jury was

presented with evidence of his personnel record. We have viewed the video of the

pursuit and arrest. Ironically, the video tape alone, without Trooper Smith’s

personnel record, was sufficient evidence for the jury to conclude Trooper Smith was

negligent, even willful, in his handling of the situation, used excessive force in

making the arrest and was completely responsible for the resulting damages.

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Bifurcating the trial on the two theories of recovery would not necessarily have

benefitted the State’s case. We find no merit this argument.

Comparative Fault

The State asserts the jury erred in failing to assess fault on the part of the

Plaintiff. Comparative fault is an affirmative defense and the party asserting it bears

the burden of proving, by a preponderance of the evidence, that the negligence of the

plaintiff was a cause-in-fact of the injury. Trahan v. Savage Indus, Inc., 96-1239

(La.App. 3 Cir. 3/5/97), 692 So.2d 490. In determining fault, the jury must consider

the conduct of each of the parties and the causal relationship between the conduct and

the damages. Several factors are to be considered: (1) whether the conduct resulted

from inadvertence or involved an awareness of the danger; (2) how great a risk was

created by the conduct; (3) the significance of what was sought by the conduct; (4)

the capacities of each of the parties, whether superior or inferior; and (5) any

extenuating circumstances which might require the party to proceed in haste, without

proper thought. Watson v. State Farm Fire and Casualty Ins. Co., 469 So.2d 967 (La.

1985); Campbell v. Louisiana Dep’t of Transp. & Dev., 94-1052 (La. 1/17/95), 648

So.2d 898. The State contends Ron was at fault in failing to stop his vehicle when

he discovered Trooper Smith was following him and in failing to mitigate his

damages by not seeking immediate medical attention for the damaged port site.

The jury assessed the fault of the parties based, in part, on the video tape of the

incident. The video tape does not support the State’s arguments in brief. Contrary

to the State’s assertion, Trooper Smith did not have his siren on when he was

following Ron. When they arrived at Melinda’s home and Ron exited his vehicle, his

hands were in complete view of the trooper. Again, contrary to the State’s assertion,

it does not appear Ron was reaching for a gun or that he was making any other

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threatening move. Ron is a young, slightly built man. When he got out of his car, he

appeared to be pointing to his girlfriend’s house presumably trying to explain the

situation involving the dogs. Trooper Smith approached with his gun drawn. He

holstered his pistol ,and without hesitation or explanation, he grabbed Ron’s left arm,

threw him to the ground, pulled his arms behind his back and handcuffed him.

Trooper Smith did not speak to Ron, ask for his name, license or vehicle registration

documents. Melinda came out of the house and she also attempted to explain that her

dogs were fighting and she was bitten. Trooper Smith told her if she was in trouble,

she should have called 911. Ron related to the trooper he had just had surgery on his

arm. Trooper Smith appeared completely unaffected by the emergency presented by

the dogs or the explanation of events given by Ron or Melinda. Ron was placed in

the police car and transported to the station.

In addition to the video tape, the jury heard the testimony of Mr. Harold

Warren, a retired assistant chief of police of the City of Dallas, Texas. Mr. Warren

was accepted by the court as an expert in the use of force and in the administration,

supervision and discipline of law enforcement personnel. Mr. Warren worked his

way up from patrol officer to assistant chief of police in charge of 140 police officers

and was responsible for analysis and review of pursuits and use of force. In addition,

Mr. Warren was an instructor at the Dallas Police Academy, the North Central Texas

Regional Police Academy and the FBI Academy. Mr. Warren reviewed the evidence,

including the videotape of the pursuit and “take down” and testified there was no

indication that any force was necessary to effect the arrest of Ron Corkern.

According to his review of the tape, he concluded Ron was completely compliant and

offered no resistence. He also confirmed, contrary to Trooper Smith’s report, that

there was no attempt to reach for a gun or any aggressive action or any action which

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could be interpreted as aggressive on the part of Ron. Mr. Warren testified Ron’s

actions were consistent with his testimony and consistent with the actions of a normal

individual who was at the point of a gun. He complied with all orders given by

Trooper Smith while, at the same time, attempting to explain the circumstances of the

situation. Mr. Warren concluded it was unnecessary to throw Ron to the ground in

order to handcuff him. He stated based on the video and the totality of the

circumstances, Trooper Smith failed to properly assess the situation and used

excessive force in making the arrest.

The jury was presented with evidence of Trooper Smith’s record as an officer.

According to his record, Trooper Smith was reprimanded multiple times for various

infractions, including failure to respond to an automobile accident as directed by his

superiors, failing to pay for gasoline at a service station, and failing to keep his gun

in working order. He was also suspended for hiding personal belongings from the

family of a deceased accident victim and filing a false report regarding the items. In

2000, during the course of an arrest, Trooper Smith kicked an individual in the head

and broke his jaw.

In assessing fault, the jury heard the testimony of the Plaintiff and his father,

Ron Corkern, Jr. Ron stated he did not notice he was being followed by a police

officer. He was totally focused on reaching his girlfriend’s home as quickly as

possible to assist her. Ron attempted, without success, to explain to Trooper Smith

he was there to help his girlfriend. The jury concluded it was not unreasonable to

believe the exigency of the circumstances justified Ron’s failure to observe Trooper

Smith behind him.

The State contends Ron was at fault in failing to secure medical treatment and

instead went on a planned trip to Florida. The testimony indicates Ron did seek

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immediate medical attention following the incident. Ron’s father contacted his son’s

two treating physicians to notify them of the damaged fistula site. He was told there

was nothing that could be done to salvage the fistula site and surgery would have to

be scheduled to insert a new port. The physician advised Mr. Corkern surgery could

be performed when Ron returned from a long-standing planned family vacation to

Florida. Ron was evaluated by his physician immediately upon his return and on July

21, 2003 he was hospitalized for the creation of another AV fistula port.

In determining the issue of comparative fault, the jury weighed the fault of both

parties and concluded Ron’s failure to stop or observe Trooper Smith’s vehicle

resulted from extenuating circumstances which required him to proceed in haste. The

record supports a finding by the jury that the injury to Ron which followed was solely

a direct result of Trooper Smith’s negligence. We, therefore, find no error in the

decision of the jury concluding Ron was free of fault in causing his damages.

Damages

The State argues the damage award is excessive. The jury awarded Ron

$100,000 for physical pain and $250,000 for mental pain and anguish. The jury heard

medical testimony regarding the consequences of damaging a kidney dialysis port site

on a young man of twenty-six who is in chronic renal failure.

Dr. Stephen W. Wheat, an internal medicine specialist, testified he first

examined Ron on May 19, 2003, with complaints of joint pain and muscle cramps.

Dr. Wheat initially thought, because Ron was only twenty-six years old, that the

symptoms were consistent with rigorous exercise. Blood tests were performed and

Dr. Wheat found “low and behold, his creatinine, which is a judge of kidney function,

was through the roof. And immediately, I said, ‘Oh, my God.’ We have a twenty-six

year old man that needs dialysis, basically.” It was discovered Ron had only one

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kidney and that kidney was congenitally smaller and was not functioning properly.

A stent was immediately placed in the urethra and Ron was administered medication

to prevent clotting in the stent and to prevent infection. He was referred to a general

surgeon.

Dr. Gazi Zibari, a general surgeon and organ transplant specialist, stated he

vividly remembers Ron because it was an unusual situation for a young, and

otherwise healthy, individual to be in need of an organ transplant. Dr. Zibari

explained the procedure for the creation of a port for dialysis. In Ron’s case, surgery

was performed on his left arm to divert blood from the brachial artery into a vein.

The goal is to create a vein or conduit where at least 150 to 400 cc’s of blood per

minute can flow through. Normally, a vein will not have that much blood flow. But

once the blood flow is diverted from the artery, the vein increases in size and

becomes stronger. The contaminated blood is taken from the site through a needle,

cleaned in the dialysis machine and then placed back into the vein, through another

needle, higher up toward the heart.

Dr. Zibari explained after surgery is performed to divert the blood flow, it takes

anywhere from four weeks to three months for the vein to develop to a point where

it can be used for dialysis. However, even the successful creation of a port site can

result in complications. Dr. Zibari testified the port site “[m]ay develop aneurysm in

the patient, infection, thrombosis, you know, erosion through the skin. Because

you’re sticking this vein three times a week. You’re subjecting this vein, or this

prosthesis. And every time you put the needle in it, you subject it to risk of

thrombosis, risk of aneurysmal development, risk of skin erosion.”

Dr. Zibari testified a port site has a life expectancy of two and half to three

years for individuals who undergo dialysis. He underscored it is important to guard

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the port site because it is inevitable a port site will fail and an individual will

eventually “run out” of port sites. He testified Ron’s optimum solution is to find a

kidney donor. However, there is a danger that he may be unable to find a suitable

donor match before he exhausts the supply of available port sites for dialysis. If this

happens, dialysis is no longer a treatment option. Dr. Zibari testified he “was

advocating finding him a living donor. If he would have a living donor, maybe we

would not have to subject him to these other operations.” The loss of one of these

sites can essentially reduce someone’s life expectancy by several years. He testified

a young man of twenty-six would have a greater risk of significant consequences

because of the loss of a port site than would an older person.

Dr. Zibari testified since the first site was irreparably damaged he performed

an additional surgery on July 21, 2003 to create a right AV fistula site for dialysis.

However, because this site had not matured at the time dialysis was scheduled to

begin in September, an additional surgery was required to place a central line into

Ron’s chest with a “pigtail” device to have dialysis administered through that site.

The right port site eventually matured and dialysis was initiated in October 2003.

Dr. Wheat saw Ron again in February 2006 when he came in with multiple

complaints. At that time, Ron had been undergoing dialysis for approximately three

years. Dr. Wheat evaluated his condition:

[D]ialysis can be very hard on people, and he was having some problems
with it, and it was – sometimes the initial stages of dialysis are really
kind, and then it just ain’t worth a flip, and that’s – we’re having some
problems, and it’s not worth a flip with him, and we’re looking at
transplanting right now, and that’s kind of what we’re trying to find, is
the best place to transplant, you know, or – and who is going to be –
and, you know, you’re got everything from matches to, you know,
location.
....
If he’s going to assume a normality of life, he’s going to need a kidney
transplant, I think, because he’s really now at a point with his – where
the dialysis is not — it’s not what it used to be. He doesn’t feel good .

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. . and he’s looking at the rest of his life feeling like this and that’s just
not an – it shouldn’t be an option for him.

The findings of a jury are entitled to great weight and will not be overturned

on appeal unless manifestly erroneous or clearly wrong. Wainwright v. Fontenot, 00-

492 (La. 10/17/00), 774 So.2d 70. The supreme court has recognized the “role of an

appellate court in reviewing general damages is not to decide what it considers to be

an appropriate award, but rather to review the exercise of discretion by the trier of

fact. Each case is different, and the adequacy or inadequacy of the award should be

determined by the facts or circumstances particular to the case under consideration.”

Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260 (La.1993), cert. denied, 510

U.S. 1114, 114 S.Ct. 1059 (1994).

In this case, the Plaintiff was a twenty-six year old who was rushing to the aid

of his girlfriend. Just three days prior to the incident, he had undergone surgery to

establish a port site for kidney dialysis. He was still assimilating the news of his

medical condition and his need for dialysis for the rest of his life. The jury heard the

medical testimony regarding the consequences of a damaged port site. The jury also

heard the testimony of the Plaintiff, who fully understands the consequences of losing

the site on his left arm and, as a result, lives in constant apprehension. The jury

assessed the actions of Trooper Smith who made no attempt to question Ron or listen

to his plea regarding the danger to his girlfriend. He drew his pistol, grabbed Ron’s

left arm and threw him to the ground irreparably damaging a port site. We do not find

the jury was clearly wrong in awarding Ron $350,000 for physical and mental pain

and suffering given the “effects of the particular injury to the particular plaintiff under

the particular circumstances.” Id. at 1261.

Expert Witness and Exhibit Fees

The State disputes two items of costs assessed against it. The first is the expert

12

witness fee of Harold Warren in the amount of $4,218.00 and the second is $1,916.00

paid to SCI Communications, Inc. for a trial exhibit. The trial court held a hearing

on the Motion to Tax Costs. The record reflects Mr. Warren was accepted by the

court as an expert in administrative police procedures and use of force. His time was

documented and his fees were reviewed by the trial court at the hearing. We find no

error in the decision of the trial court.

The State contends the cost paid to SCI Communications, Inc. for a trial exhibit

is unreasonable. We disagree. A trial court has great discretion in fixing fees for

expert witnesses and determining the reasonableness of costs incurred by the

prevailing party. Otwell v. Diversified Timber Services, Inc., 04-924 (La.App. 3 Cir.

1/26/05) 896 So.2d 222. In this case, we do not find an abuse of discretion by the

trial court.

DECREE

Based on the foregoing review of the evidence, we affirm the judgment of the

trial court. All costs of this appeal are assessed against R. Allen Smith and the State

of Louisiana, Department of Public Safety, Louisiana State Police.

AFFIRMED.

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NUMBER CA 06-1569

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

RONALD E. CORKERN, III

VERSUS

R. ALLEN SMITH AND STATE OF LOUISIANA, DEPARTMENT OF PUBLIC
SAFETY

SAUNDERS, J., concurs.

This is a case in which Plaintiff, Ronald M. Corkern, Jr., was injured when

he was approached and arrested by Louisiana State Trooper R. Allen Smith

following a high-speed car chase on May 30, 2003. Plaintiff testified that he was

responding to a frantic phone call he had received from his girlfriend, advising

him that she had been bitten by one of her dogs when she attempted to intervene in

a dog fight, and that he did not notice that Trooper Smith was following him until

he arrived at her home. Plaintiff attempted to explain the situation. Trooper Smith

proceeded to arrest Plaintiff. During the arrest, Trooper Smith allegedly grabbed

Plaintiff’s left arm, at the site of a fistula, where a port had been inserted for

kidney dialysis only three days prior to the incident. As a result, Plaintiff’s fistula

site was irreparably damaged, and a second fistula site had to be created.

Plaintiff subsequently brought a claim against Trooper R. Allen Smith and

the State of Louisiana, Department of Public Safety, alleging the use of excessive

force in making an arrest, as well as negligence in training, monitoring, and

retaining Trooper Smith.

I write further to discuss the issue of bifurcation of trial, which is argued

strenuously by the State. It is my view that bifurcation of trial is not appropriate

due to the fact that the State is alleging comparative fault as an affirmative

defense. In this case, Plaintiff filed suit asserting two causes of action: 1) the use

of excessive force by Trooper Smith during arrest and 2) Negligence in hiring,

training, and retaining patrol officer. Defendants argue that the trial should be

bifurcated because once excessive force is proven, the claim of negligent hiring is

irrelevant and only serves to inflame the jury. In defending against Plaintiff’s

claim, Defendants have alleged comparative fault as an affirmative defense. In

this case, Defendants’ fault is comprised not only of the alleged excessive force

exercised during the arrest by Trooper Smith, but also the alleged negligence of

the Department of Public Safety in retaining Trooper Smith despite his past

behavior on the force. It is necessary to weigh all of the fault of the Defendants,

both the negligence in hiring and the excessive force claims, against the fault of

the Plaintiff in order to make a determination of the allocation of fault between all

parties involved. La.Civ.Code art. 2323. The court in Landry v. Bellanger, 02-

1443 (La. 5/20/03), 580 So.2d 923, explains that art. 2323 “clearly requires that

the fault of the every person responsible for a plaintiff’s injuries be compared

regardless of the legal theory of liability asserted against each person. Dumas v.

State, 02-0563 (La.10/15/02), 828 So.2d 530).” Id. at 952. Therefore,

Department’s alleged negligence in hiring, training, and retaining Trooper Smith

is, indeed, relevant, and bifurcation of trial is not appropriate.