Lam ex rel. Lam v. State Farm Auto. Ins., 2003-CA-0180.

• Decision Date: 01 April 2005
• Docket Number: No. 2003-CA-0182.,No. 2003-CA-0181.,No. 2003-CA-0180.,No. 2003-CA-0824.,2003-CA-0180.,2003-CA-0181.,2003-CA-0182.,2003-CA-0824.
• Parties: John LAM, A Minor, Through Thom LAM In His Capacity as the Administrator of the Estate of His Minor Child, John Lam v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Thomas Perino, Mildred Perino Individually and as the Administrator of the Estate of Thomas Perino, Salvador Perino Individually and as the Administrator of the Estate of Thomas Perino, et al. Thom Lam and Hue Nguyen v. State Farm Mutual Automobile Insurance Company, Thomas Perino, Mildred Perino, Individually and as the Administrator of the Estate of Thomas Perino, Salvador Perino, Individually and as the Administrator of the Estate of Thomas Perino, et al. Billy Kim Nguyen and Thanh T. Vu, Individually and as Natural Tutrix of Anna K. Vu, A Minor v. State Farm Mutual Automobile Insurance Company, Thomas Perino, Mildred Perino, Salvador Perino, Individually and as the Administrator of the Estate of Thomas Perino, et al. John Lam, Through Tom Lam In His Capacity as the Administrator of the Estate of His Minor Child, John Lam v. State Farm Mutual Automobile Insurance Company, Thomas Perino, Mildred Perino, Individually and as the Administrator of the Estate of Thomas Perino, Salvador Perino, Individually and as the Administrator of the Estate of Thomas Perino, et al.
• Court: Louisiana Supreme Court

Page 559

901 So.2d 559

John LAM, A Minor, Through Thom LAM In His Capacity as the Administrator of the Estate of His Minor Child, John Lam v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Thomas Perino, Mildred Perino Individually and as the Administrator of the Estate of Thomas Perino, Salvador Perino Individually and as the Administrator of the Estate of Thomas Perino, et al.

Thom Lam and Hue Nguyen v. State Farm Mutual Automobile Insurance Company, Thomas Perino, Mildred Perino, Individually and as the Administrator of the Estate of Thomas Perino, Salvador Perino, Individually and as the Administrator of the Estate of Thomas Perino, et al.

Billy Kim Nguyen and Thanh T. Vu, Individually and as Natural Tutrix of Anna K. Vu, A Minor v. State Farm Mutual Automobile Insurance Company, Thomas Perino, Mildred Perino, Salvador Perino, Individually and as the Administrator of the Estate of Thomas Perino, et al.

John Lam, Through Tom Lam In His Capacity as the Administrator of the Estate of His Minor Child, John Lam v. State Farm Mutual Automobile Insurance Company, Thomas Perino, Mildred Perino, Individually and as the Administrator of the Estate of Thomas Perino, Salvador Perino, Individually and as the Administrator of the Estate of Thomas Perino, et al.

No. 2003-CA-0180.

No. 2003-CA-0181.

No. 2003-CA-0182.

No. 2003-CA-0824.

Court of Appeal of Louisiana, Fourth Circuit.

April 1, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Edward F. Downing III, John W. Houghtaling II, Gauthier, Downing, LaBarre, Dean & Sulzer, Metairie, LA, and George H. Troxell, New Orleans, LA, for John Lam, A Minor, Through Thom Lam, In His Capacity as the Administrator of the Estate of His Minor Child.

Gerald E. Meunier, Gainsburgh, Benjamin, David, Meunier & Warshauer, New Orleans, LA, for Thom Lam and Hue Nguyen Lam.

Antonio M. Clayton, Clayton Law Firm, Port Allen, LA, and Anthony D'Alto II, John B. Peuler, Gregory L. Ernst, Peuler & Ernst, New Orleans, LA, for Lakeside Imports, Inc. d/b/a Lakeside Toyota and Mid-Continent Insurance Company.

E. Wade Shows, Sheri M. Morris, Shows, Cali & Berthelot, L.L.P., Baton Rouge, LA, for Lakeside Imports, Incl., d/b/a Lakeside Toyota.

Anthony J. Clesi, Jr., Sheryl M. Howard, Derek M. Mercadal, H. James Parker, Evans & Clesi, PLC, New Orleans, LA, for Billy Nguyen.

(Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO JR., Judge ROLAND L. BELSOME).

ROLAND L. BELSOME, Judge.

FACTS

On January 31, 1995, Billy Nguyen was operating a 1989 Toyota Supra owned by his brother Dinh Nguyen, traveling east on the elevated Westbank Expressway in Jefferson Parish. Hue and Thom Lam ("Lams") were following Nguyen in their vehicle. Hue Lam was driving the following vehicle with her husband Thom as a passenger. Thom was holding their two-year old son, John, on his lap. Nguyen's vehicle experienced a sudden loss of power and began to slow down causing Hue Lam to slow down. Shortly thereafter, the Lams' vehicle was rear-ended by a pick up truck driven by Tommy Perino, causing the Lams' vehicle to rear-end Nguyen's vehicle. As a result of these impacts, the Lams' son, John, sustained severe injuries, which rendered him a paraplegic.

PROCEDURAL HISTORY

The Lams filed suit individually and on behalf of their minor son John Lam against Salvador Perino, individually and on behalf of his minor son Tommy Perino,¹ Billy Nguyen, Dinh Nguyen and State Farm Mutual Automobile Insurance. The Petition for Damages filed on March 21, 1995, alleged solidary liability among the defendants for their negligence and fault. After an inspection of the Nguyen vehicle and maintenance records, Plaintiffs filed a Supplemental and Amended Petition in December 1996, alleging Lakeside Imports, Inc. d/b/a Lakeside Toyota ("Lakeside") was negligent in its repair of the Nguyen vehicle, which caused or contributed to the loss of engine power experienced just before the collision.

A jury trial was scheduled for November 28, 2001, and jury selection began on December 3, 2001. Eight jurors were selected on that day and the court postponed the selection of the remaining jurors until December 10, 2001. Prior to jury selection resuming on December 10, 2001, Lakeside's counsel contacted the trial judge, ex parte, regarding a message left on his cell phone by one of plaintiffs' counsel. The ex parte discussion led to the trial court judge recusing herself and dismissing the eight jurors that had been seated. Thereafter, the trial judge conducted a meeting with all counsel and rescinded the recusal order resetting trial for January 2, 2002.

At the conclusion of the 25 day trial, the jury returned a verdict assigning fault as follows: (1) Lakeside 0%; (2) Tommy Perino 25%; (3) Hue Nguyen Lam 17.5%; (4) Billy Nguyen 40%; and (5) Thom Lam 17.5%. Monetary damages were awarded in the amount of $7,103,235.00. The court adopted the jury's verdict as the final judgment. It is that judgment that gives rise to this appeal.

APPELLANTS' ASSIGNMENTS OF ERROR

These consolidated appeals address several assignments of error asserted by appellants, Hue and Thom Lam, individually and on behalf of their minor son, John, (collectively "Plaintiffs") and by Billy Nguyen ("Nguyen"). The following assignments of error have been asserted: (1) the trial court erred in denying a Daubert hearing; (2) the trial court erred in allowing Lakeside's expert Glenn Cupit, to testify about, and perform experiments before the jury using a model which did not fairly represent the operation of the 1989 Toyota Supra involved in the accident; (3) the trial court erred and created confusion by instructing the jury that fault could be placed on Thom Lam, the guest passenger, for failing to use reasonable care to supervise and protect his child; (4) the jury erred in assigning 17.5% fault to Thom Lam; (5) the trial court erred in entering a judgment on the jury finding of fault on the part of Thom Lam, the passenger-father; (6) the trial court erred in entering a judgment on the jury's finding and dismissing Lakeside with prejudice, at plaintiffs' cost; (7) the trial court erred in denying John Lam's Motion for JNOV; (8) it was manifest error for the jury to find 0% negligence on the part of Lakeside; (9) the jury erred in assigning 17.5% of fault to Hue Lam; (10) the jury erred in finding Nguyen 40% negligent; (11) the jury erred in finding Perino 25% negligent; (12) the trial court erred in taxing costs of Dr. Matthews to plaintiffs; (13) the trial court erred in taxing Glenn Cupit's fees to the plaintiffs; and, (14) the trial court erred in denying plaintiff's Motion to Assess Costs of Mistrial against Lakeside.

The Plaintiffs assert assignments of error 1 through 7 and 12 through 14. Nguyen's appeal also raises assignments of error 1 through 7, and individually asserts assignments of error 8 through 11.

STANDARD OF REVIEW

Generally, a court of appeal may not set aside a trial court's or a jury's findings of fact, unless they are manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). However, the Louisiana Supreme Court has consistently held that where one or more trial court legal error impedes the fact-finding process, the manifest error standard is no longer applicable, and, whenever possible, the appellate court should make its own independent de novo review of the record and render a judgment on the merits. Ferrell v. Fireman's Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 747, revd in part, on other grounds, 96-3028 (La.7/1/97), 696 So.2d 569, reh'g denied, 96-3028 (La.9/19/97), 698 So.2d 1388; Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975); See also, McLean v. Hunter, 495 So.2d 1298 (La.1986).

A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. See Lasha v. Olin Corp., 625 So.2d 1002, 1006 (La.1993). Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Id.

For reasons thoroughly discussed in the evaluation of the assignments of error, this court finds that legal errors occurred at the trial of this matter that materially affected the jury's verdict and were therefore, prejudicial. As such, for assignments relating to those legal errors this Court will conduct a de novo review of the record and render an independent judgment on the merits consistent with the law, facts and evidence of this case. All other assignments of error will be decided applying the manifestly erroneous or clearly wrong standard.

ASSIGNMENTS OF ERROR 1 AND 2 AND 8

The trial court was notified near the end of the plaintiffs' case that Lakeside's expert, Glenn Cupit, a mechanical engineer, had recently constructed a model engine intended to replicate the engine of the 1989 Toyota Supra operated by Nguyen on the day of the accident.² The model was to be presented to the jury to conduct demonstrations and experiments.

Counsel for plaintiffs made an oral motion in limine seeking to exclude the model on the grounds that it did not accurately replicate the circumstances under which spark plugs will fire or "misfire" in a Toyota Supra engine similar to the one made subject of this action. The plaintiffs presented an affidavit prepared by their mechanical expert Charlie Miller. Miller listed 20 differences between the subject engine and Cupit's model. The trial court denied plaintiffs' motion to exclude the model and testimony and further declined to conduct a Daubert hearing. Miller's affidavit was proffered and is part of the record.

Cupit was allowed to use his model to demonstrate to the jury his theories on how the Supra engine performed on the evening of the accident. Cupit's experiments and testimony were used to contradict the plaintiffs' experts' theories regarding the Supra's engine's performance.

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