Malbrough v. Wallace

• Court: Court of Appeal of Louisiana
• Writing for the Court: SHORTESS; LANIER; LANIER
• Citation: Malbrough v. Wallace, 594 So.2d 428 (La. App. 1991)
• Decision Date: 27 December 1991
• Docket Number: No. 90,90
• Parties: Tommy MALBROUGH, Individually and on Behalf of His Minor Children, Tamala Malbrough and Tiffany Malbrough, and Tammy Malbrough v. Jane S. WALLACE, et al. CA 1109. 594 So.2d 428

Page 428

594 So.2d 428

Tommy MALBROUGH, Individually and on Behalf of His Minor Children, Tamala Malbrough and Tiffany Malbrough and Tammy Malbrough v. Jane S. WALLACE, et al.

No. 90 CA 1109.

594 So.2d 428

Court of Appeal of Louisiana First Circuit.

Dec. 27, 1991.

Writ Denied Feb. 28, 1992.

Michael J. Samanie, Houma, for plaintiffs and appellees Tommy Malbrough et al.

Frederick A. Miller, Metairie, Vincent P. Fornais, Baton Rouge, for defendant and appellant Hartford Cas. Ins. Co.

Before SHORTESS, LANIER, and CRAIN, JJ.

SHORTESS, Judge.

Tammy Malbrough (plaintiff) was injured in an automobile accident which occurred on July 26, 1985, in Houma, Louisiana. She sued the owner and driver of the other vehicle and their insurers, as well as her own uninsured motorist carrier, Hartford Casualty Insurance Company (Hartford). ¹ Her husband, Tommy Malbrough (Malbrough), joined in the suit claiming property damage and loss of consortium. ² (The Malbroughs are referred to herein collectively as plaintiffs.)

Liability of the adverse driver was stipulated. Plaintiffs settled with the tort-feasor's insurer before trial and received its policy limits of $10,000.00. Plaintiffs accepted a tender from Hartford of $2,500.00, plus payment of medical bills totaling $1,457.00.

The case was originally tried August 25-27, 1987. The jury was unable to agree on whether plaintiff's injuries resulted from the accident. A mistrial was declared.

The case was retried beginning October 30, 1989. The jury returned a special verdict in favor of plaintiffs, awarding plaintiff a total of $568,256.54 and Malbrough $25,000.00. The jury also found Hartford arbitrary and capricious in tendering plaintiffs only $2,500.00 before trial and awarded attorney's fees of " 1/3." ³

The parties stipulated before trial that Hartford's policy limits were $100,000.00. The trial court entered judgment in favor of plaintiff in the sum of $93,210.00, together with legal interest on the sum of $556,306.54 ⁴ from date of judicial demand, a statutory penalty of $55,630.65, attorney fees of $189,051.08, and legal interest on the penalty and attorney fees from date of judicial demand. The trial court entered judgment in favor of Malbrough in the sum of $4,290.00, together with legal interest on the sum of $24,450.00 ⁵ from date of judicial demand, a statutory penalty of $2,445.00, attorney fees of $8,701.10, and legal interest on the penalty and attorney fees from date of judicial demand. From this judgment Hartford appeals.

Hartford's assignments of error on appeal include several evidentiary issues, as well as the amount of damages awarded, the finding that it was arbitrary and capricious, and the date from which the trial court held interest began to run on the excess judgment, penalties, and attorney fees. We will first address the evidentiary issues.

I. EVIDENTIARY ISSUES

A. Admission of Videotape

Hartford contends the trial court erred in permitting the jury to view a 55-minute videotape of the plaintiff's microlaminectomy. After viewing the entire videotape, we agree.

The admissibility of a videotape is largely within the discretion of the trial judge. LaFleur v. John Deere Co., 491 So.2d 624, 632 (La.1986); United States Fidelity & Guaranty Co. v. Hi-Tower Concrete Pumping Service, 574 So.2d 424, 438 (La.App.2d Cir.), writs denied, 578 So.2d 136, 137 (La.1991); Ashley v. Nissan Motor Corp., 321 So.2d 868, 872-873 (La.App. 1st Cir.), writ denied, 323 So.2d 478 (La.1975). Determination of the admissibility into evidence of videotapes must be done on a case-by-case basis depending on the individual facts and circumstances of each case. Douglas v. G.H.R. Energy Corp., 463 So.2d 5, 7 (La.App. 5th Cir.1984). The trial court must consider whether the videotape accurately depicts what it purports to represent, whether it tends to establish a fact of the proponent's case, and whether it will aid the jury's understanding. Against those factors, the trial court must consider whether the videotape will unfairly prejudice or mislead the jury, confuse the issues, or cause undue delay. The trial court may exclude the evidence if the factors favoring admission are substantially outweighed by the factors against admission. Louisiana Code of Evidence articles 401-403; Hi-Tower, 574 So.2d at 438; Burk v. Illinois Central Gulf Railroad Co., 529 So.2d 515 (La.App. 1st Cir.), writ denied, 532 So.2d 179 (La.1988).

Plaintiff's neurosurgeon, Dr. Donald Judice, used an operating microscope in performing the surgery on plaintiff's back. A camera attached to the microscope filmed the surgery as seen through the microscope. The resulting videotape is an extreme close-up of this bloody surgery. Plaintiffs contend this videotape proved plaintiff had "gigantic ruptured disks." However, a viewer without a medical education cannot ascertain that plaintiff's disks were abnormal by seeing this videotape; no normal disks are shown with which to compare the disks shown on videotape. ⁶ 6]

Much of the material shown on this videotape, such as the cutting of plaintiff's fat, the smoke rising from her muscles as they were cauterized, and the removal of gory packing material from the wound, served no purpose other than to inflame and prejudice the jury. Had the videotape been restricted to only the portion showing the abnormal disks, our opinion might be different. However, this lengthy videotape was repetitive of Judice's testimony and had very little probative value to a viewer not trained in medicine. For these reasons we find the trial court committed legal error in admitting the videotape of plaintiff's surgery.

B. Exclusion of Trial Transcript and Testimony of Nancy Burgess Regarding First Trial

Hartford contends the trial court erred in excluding the testimony of Nancy Burgess, its claims supervisor who handled plaintiffs' claim, regarding the first trial and the impact of the mistrial on her decision not to make an additional tender to plaintiffs. Hartford contends the trial court also erred in excluding the transcript of the first trial.

Burgess' proffered testimony shows she attended the first trial and heard the foreman announce the jury could not reach a decision on the first interrogatory, whether plaintiff's injuries were caused by the accident. She had also reviewed the portion of the trial transcript regarding the jury foreman's statements. She testified this knowledge confirmed her original opinion that reasonable minds could differ as to the amount Hartford owed.

The jury was asked to determine at the second trial whether Hartford, through Burgess, was arbitrary and capricious in tendering only $2,500.00 to plaintiffs. The facts on which Burgess based her decision not to make a further tender were relevant and should have been placed before the jury. We find the trial court committed legal error in excluding this testimony.

It is unclear from the record whether Hartford wanted to introduce the entire transcript of the first trial or only the portion of the transcript regarding the jury's inability to reach a decision on the issue of causation. In either case, we find the trial court did not err in excluding this evidence. The transcript of the jury foreman's unsworn colloquy with the trial court adds little to Burgess's testimony and would have been confusing to the jury. The transcript of the entire first trial, including the testimony of many of the same witnesses who testified at the second trial, would have been even more confusing to the jury. Hartford contends it could have been introduced with limiting instructions to make it clear to the jury that it was being introduced only insofar as it was relevant to the issue of Hartford's good faith evaluation of plaintiffs' claims. We find, however, that the confusion to the jury would have outweighed the probative value of the transcript. C.E. art. 403.

II. DAMAGES

Hartford complains the general damages awarded by the jury to plaintiff and the damages for loss of consortium awarded to Malbrough were excessive. Hartford also contends the trial court erred in adopting the jury's verdict awarding damages to plaintiff for past lost earnings and loss of future earning capacity. The evidentiary errors made by the trial court were decidedly prejudicial to Hartford's case and so tainted the jury's findings that they are entitled to be given no weight by this court on appeal. We thus must conduct a de novo review of the record, disregarding the prejudicial videotape and considering the improperly excluded testimony of Burgess, and render judgment on the merits. Buckbee v. United Gas Pipe Line Co., 561 So.2d 76, 85-87 (La.1990). We now summarize the facts relevant to the damages issues.

A. Facts

Plaintiff Malbrough graduated from high school in 1977. Plaintiff married Malbrough in 1978. Their daughters Tamala and Tiffany were born in 1980 and 1981, respectively.

Plaintiff began working as a skin therapist at her mother's business, Derma Culture Clinic, when she graduated from high school. The work involved constant leaning over tables and put a great deal of pressure on her back, causing occasional backaches.

Plaintiff's pre-accident medical history included the following:

(1) Treatment by a family doctor for two weeks for a "run-of-the mill backache" after she hurt her back picking up a heavy water jug in 1977.

(2) Treatment by a family doctor for back pain which began suddenly while bending over her baby's bed in May 1983.

(3) Four visits to Dr. Richard Whitney, a chiropractor, for the May 1983 backache, which was diagnosed, based on a positive straight leg raising test, as an acute lumbar intervertebral disk lesion.

(4) A finding in May 1983 by Whitney, based on x-rays, that plaintiff had spina bifida occulta, a malformation of the neural tube in the first sacral segment.

(5) One visit to a chiropractor in May 1984 for a backache, diagnosed as muscle strain, which she thought may have been caused by...