Hicks v. USAA Gen. Indem. Co.

• Decision Date: 25 March 2021
• Docket Number: 2019 CA 0552
• Citation: 323 So.3d 1
• Parties: Ronald HICKS v. USAA GENERAL INDEMNITY COMPANY, Robert L. Harger, Jr., R.L. Harger and Associates, Inc., and Harger and Company, Inc.
• Court: Court of Appeal of Louisiana — District of US

323 So.3d 1

Ronald HICKS

v.USAA GENERAL INDEMNITY COMPANY, Robert L. Harger, Jr., R.L. Harger and Associates, Inc., and Harger and Company, Inc.

2019 CA 0552

Court of Appeal of Louisiana, First Circuit.

Judgment Rendered: MARCH 25, 2021

Rehearing Denied May 17, 2021

Brent E. Kinchen, William C. Helm, Stephen F. Butterfield, Baton Rouge, Louisiana, Attorneys for Appellants Defendants—USAA General Indemnity Company and Robert L. Harger, Jr.

Patrick W. Pendley, Stanley P. Baudin, Nicholas R. Rockforte, Evan P. Fontenot, Plaquemine, Louisiana and Rick Ward, III, Port Allen, Louisiana, Attorneys for Appellee Plaintiff—Ronald Hicks

Before: McClendon, Welch, Theriot, Holdridge, and Wolfe, JJ.

WELCH, J.

In this action for damages arising out of a motor vehicle accident, the defendants appeal a judgment rendered in accordance with a jury verdict, awarding damages to the plaintiff for injuries that he sustained as the result of the accident. For reasons that follow, we affirm the judgment.

I. FACTUAL AND PROCEDURAL HISTORY

On October 1, 2015, Ronald Hicks, an equipment operator and farm laborer, was a passenger in a four-door heavy-duty flatbed truck traveling westbound on Highway 190 in Pointe Coupee Parish when it was rear-ended by an automobile driven by Robert L. Harger, Jr. Mr. Harger was traveling at approximately sixty to sixty-five miles per hour with the traffic and never "hit the brakes" before crashing into the truck. As a result of the collision, the passenger side of the truck was pushed up and along the railing of the bridge on which the occupants were traveling for approximately fifty to sixty feet before falling back down onto the roadway. At the time of the accident, Mr. Hicks was in the course and scope of his employment with Nickie Rockforte Farms, LLC (Rockforte Farms), as were the driver of the truck and a rear-seat passenger.

On September 27, 2016, Mr. Hicks filed a Petition for Damages against Mr. Harger and USAA General Indemnity Company, the liability insurer of Mr. Harger's vehicle, alleging that he sustained personal injuries as a result of the accident, including injuries to his neck, back, and arm.

R.L. Harger and Associates, Inc. and Harger and Company, Inc. were also named as defendants, but they were subsequently dismissed in consideration of the parties’ stipulation that Mr. Harger was liable for the accident at issue.¹

After a four day trial, from May 14 through May 17, 2018, the jury rendered a unanimous verdict, finding that Mr. Hicks was injured as a result of the October 1, 2015 accident and awarding Mr. Hicks the following damages:

Past Medical Expenses	$110,410.00
Future Medical Expenses	$285,000.00
Past and Future Physical Pain & Suffering	$300,000.00
Past and Future Mental Anguish	$300,000.00
Past and Future Loss of Enjoyment of Life	$55,500.00
Disability	$55,500.00
Past Lost Wages	$36,000.00
Loss of Earning Capacity	$156,000.00
TOTAL	$1,298,410.00

On May 25, 2018, the trial court signed a judgment in conformity with the jury's verdict.² Thereafter, the defendants filed a Motion for New Trial, or in the Alternative, Motion for Remittitur. On August 9, 2018, following a hearing, the trial court denied the motion and signed a judgment. The defendants now suspensively appeal both the May 25, 2018 and August 9, 2018 judgments of the trial court.³

II. ASSIGNMENTS OF ERROR

On appeal, the defendants raise several assignments of error that can be summarized as follows: (1) the trial court legally erred in: (a) excluding evidence of a drug test taken by Mr. Hicks, which was positive for cocaine, during his treatment with Dr. Joseph Turnipseed, Mr. Hick's pain management doctor, and (b) denying the defendants’ request for an additional medical examination (AME) of Mr. Hicks pursuant to La. C.C.P. art. 1464, and that these two evidentiary legal errors were prejudicial, interdicted the fact-finding process of the jury, and warrant the de novo review of the record by this Court; (2) the trial court erred in denying the defendants’ motion for new trial based on Mr. Hicks's failure to provide his 2017 W-2 before trial; and (3) with regard to damages, (a) the jury erred in awarding damages for future medical treatment because Mr. Hicks's failed to prove that future treatment would more probable than not be required; (b) the jury erred in awarding Mr. Hicks damages for loss of earning capacity since Mr. Hicks continued to work full time after the accident and through trial; and (c) the jury abused its discretion in awarding excessive general damages.

III. LAW AND DISCUSSION

A. Pre-Trial Evidentiary Rulings

First on appeal, the defendants contend that certain evidentiary errors were prejudicial and interdicted the jury's fact-finding process.⁴ Specifically, the defendants maintain that the trial court's rulings (1) granting the plaintiff s motion in limine to exclude evidence that Mr. Hicks had been terminated by Dr. Turnipseed for cocaine use during his medical treatment, and (2) denying their motion to compel an AME, constituted legal and reversible error. Moreover, the defendants argue that based on these errors, we should conduct a de novo review of the record for damages.

The standard of review for evidentiary rulings of a trial court is abuse of discretion. Bristol v. Gonzales Police Department, 2017-0675 (La. App. 1st Cir. 12/21/17), 240 So.3d 232, 243-44, writ denied, 2018-0146 (La. 3/23/18), 239 So.3d 296. If the trial court has abused its discretion in its evidentiary rulings, such that the jury verdict is tainted by prejudicial errors, the appellate court should conduct a de novo review. See McLean v. Hunter, 495 So.2d 1298, 1304 (La. 1986). Errors are prejudicial when they materially affect the outcome of the trial and deprive a party of substantial rights. Evans v. Lungrin, 97-0541 (La. 2/6/98), 708 So.2d 731, 735. Thus, a de novo review should not be undertaken for every evidentiary error, but should be limited to errors that interdict the fact-finding process. Wingfield v. State ex rel. Dept. of Transp. and Development, 2001-2668 (La. App. 1st Cir. 11/8/02), 835 So.2d 785, 799, writs denied. 2003-0313, 2003-0339, 2003-0349 (La. 5/30/03), 845 So.2d 1060, cert. denied, 540 U.S. 950, 124 S.Ct. 419, 157 L.Ed.2d 282 (2003).

Consequently, in reaching a decision on an alleged evidentiary error, the court must consider whether the challenged ruling was an abuse of the trial court's discretion and whether the error prejudiced the adverse party's cause; for unless it did, reversal is not warranted. Wallace v. Upjohn Co., 535 So.2d 1110, 1118 (La. App. 1st Cir. 1988), writ denied, 539 So.2d 630 (La. 1989) ; La. C.E. art. 103. Moreover, the party alleging error has the burden of showing the error was prejudicial to the case. Brumfield v. Guilmino, 93-0366 (La. App. 1st Cir. 3/11/94), 633 So.2d 903, 911, writ denied, 94-0806 (La. 5/6/94), 637 So.2d 1056. Ultimately, the determination is whether the error, when compared to the record in its totality, has a substantial effect on the outcome of the case. Wallace, 535 So.2d at 1118.

1. Evidence of Cocaine Use

Before trial, Mr. Hicks filed a motion in limine seeking to exclude the introduction of any evidence or discussion regarding the results of a drug test he contended was inaccurate. The defendants argued, however, that Mr. Hicks had signed a contract with Dr. Turnipseed agreeing to refrain from illegal drug use during his treatment with Dr. Turnipseed, and that Mr. Hicks's violation of the agreement was highly relevant as to Mr. Hicks's credibility and his need for future medical treatment. After a hearing, the trial court granted the motion, stating in its judgment that "no such evidence or argument can be presented to the jury concerning the drug screen or [Mr. Hicks's] alleged illicit drug use." The trial court found that, despite the alleged irregularities with the test, the prejudicial effect of the evidence outweighed its benefit. Therefore, the trial court precluded the defendants from putting on any evidence showing that Dr. Turnipseed had fired Mr. Hicks as a patient because a drug test came back positive for cocaine, and Mr. Hicks's medical records were redacted to remove any reference to his use of cocaine.

On appeal, the defendants argue that the trial court's exclusion of evidence that Dr. Joseph Turnipseed fired Mr. Hicks as a patient based on his cocaine use was erroneous and that such ruling was prejudicial error because the cocaine issue featured prominently at trial.

Louisiana Code of Evidence article 401 provides:

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Additionally, La. C.E. art. 403 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.

At trial, the trial court allowed the defendants to bring up the fact that Mr. Hicks was fired by Dr. Turnipseed for failing to follow the doctor's recommended treatment. Thereafter, on cross examination, Mr. Hicks was questioned about being terminated by Dr. Turnipseed.⁵ On redirect examination, Mr. Hicks was then asked: "There was also a question about terminating a relationship with Dr. Turnipseed at some point and the reason that was done, can you tell us if it had to do with you not taking your Neurontin medication?" Defense counsel immediately objected. The defendants assert that this question misled the jury and planted a seed in the mind of the jurors that Mr. Hicks was fired simply because of failing to take a prescribed medication, rather than for taking an illegal drug. Following a sidebar discussion, during which the defendants argued that counsel for Mr. Hicks opened the door to a discussion of Mr. Hicks's cocaine use, the trial court sustained...