Roger Vestal v. Cynthia D. Kirkland

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-419 C/W
11-420 & 11-421

ROGER VESTAL, EMANUEL HAMMONDS, AND
JOHNNIE O’HARA

VERSUS

CYNTHIA D. KIRKLAND, SCHNEIDER NATIONAL CARRIERS, INC.
AND INS INSURANCE COMPNAY

**********
APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, DOCKET NO. C-2007-455, C/W
C-2007-566 & C-2007-567
HONORABLE H. WARD FONTENOT, DISTRICT JUDGE
**********

SYLVIA R. COOKS
JUDGE

**********

Court composed of Sylvia R. Cooks, James T. Genovese, and Phyllis M. Keaty,
Judges.

AFFIRMED.

W. Jay Luneau
1239 Jackson Street
Alexandria, LA 71301
(318) 767-1161
COUNSEL FOR PLAINTIFF/APPELLEE:
Cynthia D. Kirkland

D. Randolph Street
Street & Street
508 North 31st Street
Monroe, LA 71201
(318) 325-4418
COUNSEL FOR PLAINTIFF/APPELLEE:
Johnnie O’Hara.

C. David Vasser, Jr.
Vasser & Vasser
516 Myrtle Hill Drive
Baton Rouge, LA 70810
(225) 767-0352
COUNSEL FOR PLAINTIFFS/APPELLEES:
Liberty Mutual Fire Ins. Co. and Schneider National Carriers, Inc.

James D. “Buddy” Caldwell, Attorney General
Elizabeth B. Hollins, Assistant Attorney General
Louisiana Department of Justice, Litigation Division
One Lakeshore Drive, Suite 1200
Lake Charles, LA 70629
(337) 491-2880
COUNSEL FOR DEFENDANT/APPELLANT:
State of Louisiana, DOTD

COOKS, Judge.

On November 27, 2006, Cynthia Kirkland was driving a 2006 Freightliner

eighteen-wheeler owned by her employer, Schneider National Carriers. She was

returning from the Proctor & Gamble plant in Pineville, Louisiana, where she had

picked up a trailer loaded with soap products. She was driving south on Louisiana

Highway 165 in Allen Parish when she observed an accident ahead of her. At this

point on Hwy. 165, the road was undergoing construction to change from two to

four lanes. The north-bound construction was completed, but the south-bound

construction was about to begin.

The accident in front of her involved another eighteen wheeler that had lost a

load of lumber. Kirkland began slowing her vehicle. While doing so, her eighteen

wheeler drifted onto the two-foot wide shoulder. There was a difference in

elevation between the shoulder and roadway. When Kirkland’s truck left the

roadway, she attempted to reenter the roadway by decelerating the vehicle and

attempting to steer back onto the paved portion of road. According to Kirkland,

due to the elevation difference between the shoulder and roadway, she encountered

difficulty. When her steering axle tires finally got back up on the roadway, the

vehicle yawed, jack knifed, and overturned onto the passenger side. Kirkland’s

vehicle came to rest on top of a vehicle occupied by Johnnie O’Hara. Kirkland

and O’Hara suffered injuries as a result of the accident.

Kirkland filed proceedings against the State of Louisiana, Department of

Transportation and Development (hereafter DOTD), alleging failure to maintain a

reasonably safe roadway, failure to properly maintain the shoulder, and failure to

warn of an unreasonably dangerous condition. Specifically, Kirkland maintained

the accident occurred because of a drop-off where the roadway meets the shoulder,

which was composed of aggregate.

Suit was also filed against DOTD by Kirkland’s employer, Schneider

National Carriers, and its insurer, Liberty Mutual Fire Insurance Company, seeking

reimbursement for workers’ compensation benefits, both indemnity and medical,

paid to Kirkland.

O’Hara also sued Kirkland, her employer and insurer, and DOTD. O’Hara’s

claims against all parties other than DOTD were settled prior to trial. O’Hara’s

claims against DOTD included the failure to maintain a reasonably safe roadway,

failure to properly design, construct or maintain the shoulder, constructing or

maintaining the shoulder with an excessive drop-off, and the failure to warn of an

unreasonably dangerous condition.

The three separate lawsuits were consolidated for trial. After a trial, the jury

returned judgment finding DOTD 80% at fault in causing the accident and

Kirkland was cast with the remaining 20% of fault. Kirkland was awarded

$235,440.00 in general damages and $1,600.00 in future medicals (which reflected

the reduction of 20% for her fault). O’Hara was awarded $480,000.00 in general

and special damages (which reflected the reduction of 20% for Kirkland’s fault).

O’Hara’s award included $18,418.00 in loss of future wages and loss of future

earning capacity.

Both Kirkland and O’Hara filed for Judgments Notwithstanding the Verdict

(JNOV) to increase the amounts awarded. O’Hara contended the jury erred in only

awarding him $18,418.00 in loss of future wages and earning capacity. Kirkland

argued the jury erred in refusing to award amounts proven for past wage loss and

future wage loss and earning capacity. The trial court granted O’Hara’s JNOV and

awarded an additional $300,000.00 for future wage loss and loss of earning

capacity. Kirkland’s award was not changed.

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The judgment also provided the intervention filed by Kirkland’s employer,

Schneider National Carriers, and its insurer, Liberty Mutual, was granted with the

amount to be established pursuant to a Rule to be filed at a later date.

On appeal, DOTD asserts the following assignments of error:

1. The trial court erred in finding DOTD eighty percent liable in
this accident, when the alleged defect was not the cause-in-fact of the
motorists’ injuries.

2. The trial court erred in allowing the introduction of prejudicial
evidence, maintenance records for the highway following the
accident, which was not relevant or necessary to prove the plaintiffs’
case.

3. The trial court erred in disallowing the testimony and evidence of
the State’s accident reconstruction expert without a valid or
reasonable basis.

4. The trial court erred in granting O’Hara’s JNOV and increasing
the future wage loss and loss of earning capacity award as the jury’s
award was not manifest error considering the testimony.

5. The trial court properly awarded Kirkland damages for past lost
wages when the testimony as a whole is considered.

Kirkland answered DOTD’s appeal, and alleged as error the jury’s failure to award

the amounts proven for past and future wage loss, as well as loss of earning

capacity.

I. Liability of DOTD.

The jury returned a verdict in which it found DOTD 80% at fault and

Kirkland 20% at fault. DOTD argues it was Kirkland’s driving, and not the defect

presented by the shoulder, that was the cause-in-fact of the motorists’ injuries.

Conversely, the plaintiffs aver that the jury’s verdict is well-supported by the

evidence.

DOTD has a legal duty to maintain the public highways in a reasonably safe

condition. Sinitiere v. Lavergne, 391 So.2d 821 (La.1980). This duty extends to

the shoulders of the highways as well. Graves v. Page, 96-2201 (La. 11/7/97), 703

So.2d 566; Myers v. State Farm Mut. Auto. Ins. Co., 493 So.2d 1170 (La.1986);

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Rue v. State, Dep’t. of Highways, 372 So.2d 1197 (La.1979). DOTD’s duty to

maintain safe shoulders encompasses the foreseeable risk that for any number of

reasons, “whether as a result of inattentiveness or negligence,” a motorist might

find himself traveling on, or partially on, the shoulder. Petre v. State ex rel. Dep’t.

of Transp. and Dev., 01-876, p. 8 (La. 4/3/02), 817 So.2d 1107, 1112. DOTD’s

duty to maintain the road and shoulder encompasses the risk that a motorist may

travel onto or partially onto the shoulder. See Graves v. Page, 96-2201 (La.

11/7/97), 703 So.2d 566. However, in recognizing the existence of this duty, this

court has held that DOTD is not a guarantor of the safety of those who travel

highways of this state. See Ryland v. Liberty Lloyds Ins. Co., 93-1712 (La.

1/14/94), 630 So.2d 1289. DOTD’s duty to the traveling public is breached only

when the highway at the scene of the accident is found to create an unreasonably

dangerous condition. Petre, 775 So.2d 1107. DOTD’s duty to maintain

reasonably safe roadways encompasses persons who are foreseeably placed in

danger by unreasonably dangerous conditions. Under our comparative negligence

system, even motorists who are slightly exceeding the speed limit, momentarily

inattentive, or otherwise negligent may recover from DOTD. Petre, 775 So.2d at

1259-60, citing Lamaire v. Motor Convoy, Inc., 625 So.2d 638 (La.App. 3

Cir.1993), writ denied, 93-2778 (La.1/7/94), 632 So.2d 754.

Whether a defect presents an unreasonable risk of harm must be decided on

the particular facts and circumstances of each case. See Hunter v. Dep’t. of

Transp. and Dev., 620 So.2d 1149 (La.1993). The jury’s determination in this

regard is factual in nature. We evaluate findings of the trier of fact under the

manifest error or clearly wrong standard. Rosell v. ESCO, 549 So.2d 840

(La.1989). Under the manifest error standard, a factual finding cannot be set aside

unless the appellate court finds that the trier of fact’s determination is manifestly

erroneous or clearly wrong. Stobart v. State, Department of Transportation and

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Development, 617 So.2d 880 (La.1993). In order to reverse a fact finder’s

determination of fact, an appellate court must review the record in its entirety and

find that a reasonable factual basis does not exist for the finding and that the record

establishes that the fact finder is clearly wrong or manifestly erroneous. Id.

The appellate court is not to re-weigh the evidence or substitute its own

factual findings because it would have decided the case differently. See

Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La. 4/3/02),

816 So.2d 270. Where two permissible views of the evidence exist, the fact

finder's choice between them cannot be manifestly erroneous or clearly wrong,

even if the reviewing court would have decided the case differently. Stobart, 618

So.2d 880. Louisiana courts have consistently held that causation is a factual

finding, which should not be reversed on appeal absent manifest error. Id. The

issue to be resolved is not whether the trier of fact was right or wrong, but whether

the fact finder’s conclusion was a reasonable one. Cosse v. Allen-Bradley Co., 601

So.2d 1349 (La.1992). Thus, even though an appellate court may feel its own

evaluations and inferences are more reasonable than the fact finder’s, reasonable

evaluations of credibility and reasonable inferences of fact should not be disturbed

upon review where testimony conflicts. Id.

Initially, we note DOTD acknowledged it had custody of the highway where

the accident occurred. Further, the record confirmed the highway was accepted by

DOTD from the construction company prior to the accident, as evidenced by a

formal acceptance document signed five days before the accident.

After a thorough review of the record, we find ample evidence was

presented to the jury for it to conclude the drop-off between the roadway and

shoulder was a cause-in-fact of the accident. The jury chose to place more

credibility in the Plaintiffs’ expert rather than DOTD’s expert, which is well within

its province as the trier of fact.

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Duane Evans, who was a qualified expert in highway design and

reconstruction, testified for Plaintiffs. He found the shoulder and the aggregate

next to it were not level, and exhibited a drop-off in the area of the accident

anywhere from four to ten inches. Mr. Evans specifically testified “[i]f there’s a

significant drop-off of four inches, for instance, it can affect your steering and

cause you to either go toward the ditch or jump back onto the road and not be

headed in the right direction.” He also stated a four inch or greater drop-off

required immediate attention and should be handled on an emergency basis. Mr.

Evans also told the jury that, as per DOTD plans, in the area where the accident

occurred, there should have been a slope of four to one (meaning for every one

foot of slope there should be four feet of road). However, he stated the slope was

approximately two to one, which created a “serious slope,” one which he believed

was “non-recoverable.” He further explained that “a vehicle that gets on [such a

slope] generally will be out of control.” He opined that once Kirkland “lost control

on the slope, the drop-off prevented her [from] recovering that control,” and that

led to her vehicle yawing when it reentered the roadway, and eventually spinning

out of control and overturning.

DOTD attempts to lessen the impact of Mr. Evans testimony by noting he

made no measurements at the scene and relied simply on photographs to determine

the amount of drop-off and slope. However, Mr. Evans testified he relied on the

photographs because, when he went to the accident scene, DOTD had already

begun further construction on the south-bound lanes, and the construction had

significantly changed the shoulder area. He also informed the jury that experts in

similar cases often rely on scene photographs, because they rarely get to the scene

until months or even years after the accident. The jury undoubtedly did not place

much weight on this fact in judging the credibility of Mr. Evans’ testimony,

particularly considering DOTD’s expert, Joseph Blashke, relied on the same

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photographs in making his conclusions, acknowledging when he visited the

accident site, it looked “nothing” like it did on the date of the accident.

Mr. Blashke, who was also qualified as an expert in highway design and

reconstruction, testified that Kirkland’s actions were the sole cause of the accident.

He believed Kirkland overreacted to leaving the roadway and responded before she

fully left the roadway, causing the tractor-trailer to lose control. Mr. Blashke did

not believe Kirkland’s version of how she left the roadway and her actions

thereafter. Unfortunately for DOTD, the jury chose to believe Kirkland and her

expert, Mr. Evans. Mr. Blashke acknowledged on cross-examination that he gave

his opinion as to what caused the accident before ever reading the testimony of the

eye-witness accounts of the accident. Mr. Blashke also testified he was not sure

what the actual slope of the road was, and even testified in his deposition that the

slope “did not appear to be as flat as four to one” as is appropriate. Further, when

asked “[w]ould you venture a guess that the slope might be closer to two to one

than it is to four to one or would you disagree with that statement?,” Mr. Blashke

responded “I can’t disagree.” He also acknowledged that a two to one slope is

“considered to be non-recoverable.”

DOTD relies heavily on the measurement made by State Trooper Farris that

Kirkland’s tractor-trailer was off the road for approximately 61 feet, to support Mr.

Blashke’s opinion that the accident was primarily caused due to Kirkland’s

“obvious over-correction” and “significant over-steering.” However, as Trooper

Farris testified, he was not trained in accident reconstruction and acknowledged he

did the best he could with the information available, but his measurement was not

exact. The jury also heard the testimony of Mr. Evans that he believed Kirkland’s

vehicle may have been more than 61 feet off the road. Mr. Evans also testified that

even if Kirkland had gone off the road only 61 feet, she could have had enough

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time to input steering. Thus, the jury was provided with conflicting evidence from

which to choose.

The testimony and photographs in the record confirmed the drop-off in the

area of the accident was between four and six inches. The court in Everhardt v.

Louisiana Department of Transportation & Development, 07-981, p. 19 (La.App. 4

Cir. 2/20/08), 978 So.2d 1036, 1050, noted the multitude of cases finding such a

significant drop-off from the roadway to the shoulder constitutes a defect in the

roadway and, as such, presents an unreasonable risk of harm:

Louisiana jurisprudence is replete with cases holding that a
drop-off from the roadway to the shoulder in excess of four inches
constitutes a defect in the roadway and presents an unreasonable risk
of harm to the traveling public. See LeBlanc v. State of Louisiana,
419 So.2d 853 (La.1982)(four to six-inch drop off of the shoulder
created a dangerous hazard); Perez v. State of Louisiana, Through the
Dept. of Transp. and Dev., 578 So.2d 1199 (La.App. 4
Cir.1991)(roadway was defective because it had an eight-inch drop
from the road to the shoulder and state held to be 40% negligent);
Roberts v. State, Through the Dept. of Transp. and Dev., 576 So.2d 85
(La.App. 2 Cir.1991)(three to five-inch drop off constituted an
unreasonably dangerous condition); Brown v. State, Through the
Dept. of Transp. and Dev., 04-912 (La.App. 5 Cir. 2/15/05), 896
So.2d 1136 (DOTD found liable for accident involving seven to ten-
inch drop off); Aday v. State, Through the Dept. of Transp. and Dev.,
06-1181 (La.App. 3 Cir. 2/7/07), 950 So.2d 928 (summary judgment
granted on the issue of liability in favor of motorists on grounds that a
shoulder with a four-and-one-half inch drop off constituted a defect in
the shoulder); Bozeman v. State, Through the Dept. of Transp. and
Dev., 34,430 (La.App. 2 Cir. 4/4/01), 787 So.2d 357 (a three-inch
drop off presents an unreasonable risk of harm); Guzman v. State,
Through the Dept. of Transp. and Dev., 95-0957 (La.App. 1 Cir.
12/15/95), 664 So.2d 1343 (a three-inch drop off found to constitute a
defect with the state being held 50% liable); Hood v. State, Through
the Dept. of Transp. and Dev., 587 So.2d 755 (La.App. 2 Cir.1991)(a
four-inch shoulder drop off deemed unreasonably dangerous to
normal use); Caruthers v. State, Through the Dept. of Transp. and
Dev., 97-1450 (La.App. 3 Cir. 4/15/98), 711 So.2d 420 (generally, a
roadway is considered defective and unreasonably dangerous when
the depth of its drop off exceeds two inches).

After a thorough review of the testimony and evidence presented to the jury, we

find no error in its conclusion that the roadway was defective and presented an

8

unreasonable risk of harm. Thus, we affirm the jury’s finding that DOTD was

eighty percent at fault in causing this accident.

II. Admission of Maintenance Records.

In its second assignment of error, DOTD contends the trial court erred when

it admitted certain maintenance records for the highway following the accident.

Specifically, DOTD argues the introduction of this “prejudicial evidence” inflamed

the jury and was not even necessary to prove plaintiffs’ case. However, the record

established DOTD failed to make a contemporaneous objection when the

documents were introduced. “To preserve an evidentiary issue for appellate

review, it is essential that the complaining party enter a contemporaneous objection

to the evidence or testimony, and state the reasons for the objection.” LaHaye v.

Allstate Ins. Co., 570 So.2d 460, 466 (La.1990); see also Ewing v. State ex rel.

Dep’t. of Transp. and Dev., 99-1556 (La.App. 3 Cir. 3/15/00), 757 So.2d 843;

Himel v. State ex rel. Dep’t. of Transp. and Dev., 04-274 (La.App. 5 Cir.

10/12/04), 887 So.2d 131, writ denied, 04-2802 (La. 3/18/05), 896 So.2d 999.

Failure to object to the introduction of evidence constitutes a waiver of right to

object on appeal. LaHaye, 570 So.2d 460. Thus, we find no merit in this

assignment.

III. Exclusion of Expert’s Testimony.

In its next assignment of error, DOTD contends the trial court erred in

“disallowing the testimony and evidence of the State’s accident reconstruction

expert without a valid or reasonable basis.” Presumably, DOTD refers to the

testimony of Marshall Lyles, although no name is ever listed in DOTD’s brief.

Plaintiffs filed a motion in limine seeking to have the trial court exclude the

testimony of Lyles. Following a hearing, the trial court granted the motion finding

that Lyles’ testimony would be speculative because he used several “default

values” which may or may not have been accurate, and he failed to identify the

9

studies, surveys, treatises or other documents used to support his opinions.

Combining this with the fact that the trial court believed Lyles’ testimony would be

cumulative, as the State presented other accident reconstruction experts, the trial

court granted the motion in limine and excluded Lyles’ testimony.

The law is clear when a trial court excludes or limits the testimony of a

witness, a proffer can be made. La.Code Civ.P. art. 1636. It is incumbent upon the

party who contends its evidence was improperly excluded to make a proffer, and if

it fails to do so, it waives its right to complain of the exclusion on appeal.

Fontenot v. Fontenot, 621 So.2d 843 (La.App. 3 Cir.1993), rev’d on other

grounds, 93-2479 (La. 4/11/94), 635 So.2d 219; Goodwin v. Goodwin, 618 So.2d

579 (La.App. 2 Cir.), writ denied, 623 So.2d 1340 (La.1993). Our review of the

record confirms that the trial court specifically asked all parties if they required any

proffers to be made. The purpose of a proffer is to preserve evidence excluded by

the trial court so that the evidence is available for appellate review. McLean v.

Hunter, 495 So.2d 1298 (La.1986). DOTD did not proffer Lyles’ testimony,

therefore, we have no way of knowing what his testimony would have been.

Accordingly, it is precluded from complaining that his testimony was excluded.

IV. Grant of JNOV in Favor of O’Hara.

DOTD argues the trial court erred in granting O’Hara’s JNOV and

increasing his future wage loss and loss of earning capacity award from $18,418.00

to $300,000.00.

The record established O’Hara was a passenger in the right passenger seat of

the vehicle which was struck by Kirkland’s eighteen-wheeler. He suffered serious

injuries as a result of the accident, including lower back injuries which required

two-level lumbar fusion surgery. The record established O’Hara incurred

$147,000.00 in medical expenses, all of which were stipulated to be related to the

accident. He was unable to work for a lengthy period of time, and has been unable

10

to return to his duties as a pipefitter due to the physical limitations brought about

by the injuries suffered in the accident.

The testimonies of Dr. Bernie McHugh, the neurosurgeon who performed

O’Hara’s fusion surgery, and Dr. John Ledbetter, O’Hara’s pain management

physician, were steadfast that O’Hara would be unable to return to pipefitting or

similarly physically demanding work. Dr. McHugh opined that O’Hara would be

unable to engage in “heavy lifting, climbing, carrying heavy things . . . excessive

bending and stooping and squatting.” Any employment he engaged in would have

to allow for frequent position changes. O’Hara testified his employment history

included jobs as a pipefitter, welder, and truck driver. The medical testimony

clearly established he would be unable to work in any of these positions in the

future because of his injuries.

Dr. Charles Bettinger, an expert in the field of economics and statistics,

conducted an economic analysis of O’Hara’s past and future earnings losses. In

calculating the future economic loss, Dr. Bettinger based his figures on the

assumption that O’Hara would be able to return to full-time work earning entry

level wages. Subtracting those prospective wages from what O’Hara would have

earned working as a pipefitter, Dr. Bettinger calculated the future loss of earning

capacity to be slightly in excess of $600,000.00.

DOTD notes that while the case was pending, O’Hara pled guilty to Illegal

Possession of a Firearm, a felony. Counsel for O’Hara filed a motion in limine

in an attempt to keep evidence of this conviction from the jury. The trial court

denied the motion in limine. In lieu of O’Hara’s plea, Dr. Bettinger was requested

to revise his calculations to delete five years of future earnings to reflect the

maximum term of imprisonment to which O’Hara was potentially subject. O’Hara

argues there was no evidence presented at trial that indicated a felony conviction

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would have prevented him from earning wages in the future, other than during any

possible period of incarceration.

In its verdict, the jury determined O’Hara was entitled to an award for loss

of future earning capacity, but rendered only $18,418.00, which was significantly

below any amount testified as appropriate by Dr. Bettinger. O’Hara then filed for

JNOV, contending the jury failed to make a reasonable award for his loss of future

earnings and loss of earning capacity. The trial court agreed and granted the

JNOV, finding the evidence pointed so overwhelmingly in favor of O’Hara that

reasonable and fair-minded jurors in the exercise of impartial judgment should

have concluded O’Hara suffered a greater loss of future earnings and loss of

earning capacity than $18,418.00. The trial court raised the award to $300,000.00.

Louisiana Code of Civil Procedure Article 1811 provides for the trial court’s

use of a JNOV as being “warranted when the facts and inferences point so strongly

and overwhelmingly in favor of one party that the trial court believes that

reasonable persons could not arrive at a contrary verdict.” Forbes v. Cockerham,

08-762, p. 30 (La. 1/21/09), 5 So.3d 839, 857. A trial court should enter a JNOV

“only when the evidence points so strongly in favor of the moving party that

reasonable persons could not reach different conclusions.” Id. It is not sufficient

that there is a preponderance of evidence for the mover. Davis v. Wal-Mart Stores,

Inc., 00-445 (La. 11/28/00), 774 So.2d 84. Rather, “[i]f there is evidence opposed

to the motion which is of such quality and weight that reasonable and fair-minded

men in the exercise of impartial judgment might reach different conclusions, the

motion should be denied.” Id. at 89. In considering this point, the trial court

should not evaluate the credibility of the witnesses. Id. Finally, the trial court

must resolve all reasonable inferences or factual questions in favor of the non-

moving party. Id.

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On review of a JNOV, an appellate court’s inquiry is two-fold. Davis, 774

So.2d 84. First, we must determine whether the trial court erred in granting the

JNOV. Id. Therefore, the appellate court considers “whether the facts and

inferences point so strongly and overwhelmingly in favor of the moving party that

reasonable persons could not arrive at a contrary verdict.” Forbes, 5 So.3d at 858.

If the appellate court concludes that reasonable persons might reach a different

conclusion, the trial court’s granting of the motion was erroneous, and the jury

verdict should be reinstated. Id. However, if the trial court applied the correct

standard, the appellate court reviews the JNOV using the manifest error standard of

review. Davis, 774 So.2d 84.

In reviewing the trial judge’s decision to grant plaintiff’s motion for JNOV

on the issue of damages for loss of future earnings and loss of earning capacity

damages, we conclude that the motion was properly granted. We have already

detailed the medical testimony that established O’Hara’s significant physical

injuries, including a two-level lumbar fusion surgery. The medical testimony also

established, although O’Hara could do some type of entry-level employment, his

physical limitations would prevent him from returning to the type of employment

he previously performed, thus impacting the amount of money he could earn. The

trial court did find an award for loss of future earnings and loss of earning capacity

was warranted, but the amount awarded was woefully inadequate considering the

medical and expert testimony found in the record. The trial court, in his oral

reasons to grant the JNOV in favor of O’Hara, specifically found to reach the

amount it did, the “jury would have had to come to an assumption that he simply

was not going to work again. . .” The trial court did not err in granting the JNOV

in this regard.

Having determined that the trial judge properly granted the JNOV as to the

jury’s award of loss of future earning capacity and loss of earning capacity to

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O’Hara, we now turn to a review of the award of the JNOV ($300,000.00) by the

trial judge. The appellate court reviews the trial court’s award of damages

pursuant to the JNOV using the manifest error standard regarding the factual

matters pertaining to the damages. Davis, 774 So.2d 84. Dr. Bettinger’s

calculations, including the one that factored in the felony arrest, were in excess of

the trial court’s award of $300,000.00. Thus, we find no manifest error in the trial

court’s award.

IV. Damages Awarded Kirkland.

Kirkland answered DOTD’s appeal and assigns as error the amount of

damages the jury awarded for her past and future wage loss, as well as loss of

earning capacity. Kirkland was awarded $74,000.00 in past lost wages and

$25,000.00 in future wage loss and loss of earning capacity.

Dr. Todd Drury testified that Kirkland will be unable to return to her job as a

truck driver. Dr. Pat Culbertson, an economist, testified Kirkland was entitled to

$91,882.00 in past wages. He based this on her past twenty-six weeks of wages

earned as a truck driver. However, the record indicated Kirkland exhibited a wide

disparity of earning ability during her brief career as a truck driver. She was not a

salaried employee, but was at the mercy of the work that was available at the time.

Thus, the jury’s award of $74,000.00 in lost wages may well have reflected that

testimony.

As to the loss of future earning capacity, Dr. Culbertson testified if Kirkland

worked to age 62.3 earning the wages she had in the 26 weeks prior to the injury,

she would have a loss of future earning capacity of approximately $64,000.00. If

she worked to 66, the amount would be approximately $118,000.00. The jury was

presented with evidence that Kirkland currently had a new job for which she

earned wages. Although the wages she earned in her new employment were not as

much as she earned as a truck driver, there was testimony that her wages could

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increase with time. The jury was also informed of several extended periods of

unemployment prior to Kirkland becoming a truck driver. This evidence may have

influenced the jury’s decision to award less than that forecast by Dr. Culbertson.

In its oral reasons for denying the JNOV as to Kirkland, the trial court stated

the following:

On the Kirkland motion [for JNOV], the economist made
certain predictions, but those predictions were made – were based on
assumptions which were explained to the jury. And a jury is not
required to accept all of the assumptions and they’re not required to
accept an economist’s speculations, which is pejorative term, but it is
a speculative type figure. They’re not required to accept them in total.
The range which the jury decided to accept, the Court feels was in a –
in the area of reasonableness. So the Court will deny the Motion for
JNOV in that claim.

We find no error in the trial court’s denial of the JNOV as to Kirkland. The

evidence did not point so strongly in favor of her that reasonable persons could not

reach different conclusions.

DECREE

For the foregoing reasons, the lower court’s judgment is affirmed. All costs

of this appeal are assessed to defendant-appellant, the State of Louisiana, through

the Department of Transportation and Development.

AFFIRMED.

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