Morrison v. Kappa Psi Fraternity

• Decision Date: 07 May 1999
• Docket Number: No. 31805-CA.,31805-CA.
• Citation: 738 So.2d 1105
• Parties: Kendrick MORRISON, et al., Plaintiffs-Appellants, v. KAPPA ALPHA PSI FRATERNITY, et al., Defendants-Appellants.
• Court: Court of Appeal of Louisiana — District of US

738 So.2d 1105

Kendrick MORRISON, et al., Plaintiffs-Appellants, v. KAPPA ALPHA PSI FRATERNITY, et al., Defendants-Appellants.

No. 31805-CA.

Court of Appeal of Louisiana, Second Circuit.

May 7, 1999.

Writs Denied September 24, 1999.

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Due', Caballero, Price & Guidry By Randolph A. Piedrahita, Baton Rouge, Christopher L. Whittington, Counsel for Plaintiffs Kendrick, Linda & Clayton Morrison.

Cook, Yancy, King & Galloway By Sidney E. Cook, Jr., J. Todd Benson, Shreveport, Counsel for Defendants Kappa Alpha Psi Fraternity, Aetna Casualty.

Jessie Magee, Defendant, Pro Se.

Richard P. Ieyoub, Attorney General, Jerald L. Perlman, Assistant Attorney General, La. Department of Justice, Counsel for Defendant State of Louisiana.

Before BROWN, STEWART and DREW, JJ.

BROWN, J.,

This case arises out of a fraternity hazing incident at Louisiana Tech. On April 10, 1994, Kendrick Morrison, a freshman interested in membership in Kappa Alpha Psi, was physically beaten by Jessie Magee, president of the Tech Kappa chapter, during a gathering which took place in Magee's dorm room.¹ That same night, Kendrick received treatment at the Lincoln General Hospital for injuries to his head and neck and reported the incident to campus police. Following an investigation, both the university and national fraternity suspended Magee and Tech's Kappa chapter.

Kendrick and his parents, Clayton and Linda Morrison, filed suit against Kappa Alpha Psi, Inc. ("Kappa National"); its insurer, Aetna Casualty and Surety Company ("Aetna"); Jessie Magee; and the State of Louisiana Through the Board of Trustees for State Colleges and Universities ("the State").² The State filed crossclaims against Kappa National, Aetna and Magee.

Finding all defendants liable for Kendrick's injuries, a jury allocated fault in the following percentages: 33% to Kappa National, 33% to the State, and 34% to Magee. The jury further found that Kappa National was vicariously liable for the actions of Magee. Kendrick was awarded $6,000 in past medical expenses, $6,000 in future medical expenses, and $300,000 in general damages. The jury, however, declined to make an award to Kendrick for future lost earning capacity. As for Kendrick's parents, although finding that they had suffered a loss of consortium, the jury declined to award them any damages.

The trial court rendered judgment in accordance with the jury's verdict on September 23, 1997. Defendants filed motions for JNOV and/or new trial which were denied by the trial court. Appeals were perfected by all of the parties, urging a host of errors.

DISCUSSION

EVIDENTIARY MATTERS

Expert Testimony

Plaintiffs contend that the trial court erred in allowing the State's vocational rehabilitation expert, Dr. Richard Galloway, to testify on the issue of Kendrick's loss of earning capacity. According to plaintiffs, Dr. Galloway should not have been allowed to change his opinion on the eve of trial to the prejudice of plaintiffs based upon his review of Kendrick's grade transcript from Louisiana Tech.

Kendrick and his parents testified that it was Kendrick's lifelong dream to become a physical therapist. Dr. Paul Ware, Kendrick's treating psychiatrist, testified that it was more probable than not that as a result of the hazing, Kendrick would be unable to become a physical therapist as his grades dropped below the point required for admission to a physical therapy program. Dr. Ware did not examine Kendrick's college transcript; instead, he based his opinion upon information provided by Kendrick during his treatment. In addition to Dr. Ware's testimony, plaintiffs presented expert testimony on the amount of future income that Kendrick could have earned as a physical therapist.³

To counter the evidence presented by plaintiffs, the State retained Dr. Richard Galloway as its vocational rehabilitation expert. In addition to conducting an extensive interview with Kendrick, Dr. Galloway reviewed Kendrick's medical records and the depositions of Dr. Ware, Dr. Harju and Stephanie Chalfin, plaintiffs' vocational rehabilitation expert. Plaintiffs strenuously resisted the State's efforts to provide Dr. Galloway with Kendrick's grade transcript. The trial court, however, on the Friday before trial, ordered production of Kendrick's college transcript.

After reviewing the transcripts, it was Dr. Galloway's opinion that more probable than not, Kendrick would not have been able to get into physical therapy school because his grades before and after the hazing incident were inadequate. Dr. Galloway noted that Kendrick's science and math grades were consistently poor throughout his college career. Furthermore, Kendrick's transcript showed that his high school G.P.A. and grades at Tech were lower than he represented to Dr. Galloway. In fact, Dr. Galloway noted that Kendrick's grades appeared to improve after the hazing incident. Dr. Galloway noted that Dr. Ware, who had a different opinion, did not take into account Kendrick's actual scholastic performance. Dr. Galloway believed that at most, the hazing incident delayed Kendrick from obtaining his undergraduate degree. Dr. Galloway pointed out that after Kendrick transferred from Louisiana Tech to the University of Minnesota, he began pursuing a degree in Management Information Systems.

Plaintiffs objected to the testimony of Dr. Galloway, arguing that the last minute change in his testimony was untimely, unfair and prejudicial. The trial court, however, noted that plaintiffs' vocational rehabilitation expert, Stephanie Chalfin, testified that she reviewed Kendrick's transcript well in advance of trial. The court allowed plaintiffs to depose Dr. Galloway just prior to his testimony to determine the effect, if any, his review of the transcript had on his opinion. The court further afforded plaintiffs an opportunity to have their experts testify on rebuttal.

La. C.E. art. 103(A) provides that error may not be predicated upon a ruling admitting or excluding evidence unless a substantial right of the party is affected. In reviewing evidentiary decisions of the trial court, the appellate court must consider whether the particular ruling complained of was erroneous and if so, whether the error prejudiced the complainant's cause, for unless it does, reversal is not warranted. Cash v. K.C.I. Construction, Inc., 95-1083 (La.App. 5th Cir. 05/15/96), 675 So.2d 297, writ denied 96-1811 (La.10/25/96), 681 So.2d 369; Brumfield v. Guilmino, 93-0366 (La.App. 1st Cir. 03/11/94), 633 So.2d 903, writ denied, 94-0806 (La.05/06/94), 637 So.2d 1056.

The trial court properly allowed Dr. Galloway's testimony. Plaintiffs resisted the State's efforts to provide Dr. Galloway with Kendrick's transcript, even though their vocational rehabilitation expert had a copy of the transcript. Any delay in the transcript's production or change in Dr. Galloway's opinion after his review was caused by plaintiffs. Furthermore, plaintiffs were able to cross examine Dr. Galloway and call their own experts back on rebuttal.

As for plaintiffs' request that we assess defendants with the costs of their economic experts, we note that the jury was presented with conflicting expert testimony on the issue of whether Kendrick suffered a loss of earning capacity as a result of the hazing incident. The jury's determination that Kendrick did not sustain such a loss is fully supported by the record. We therefore find no error in the trial court's refusal to assess defendants with the costs associated with Kendrick's loss of earning capacity claim.

Evidence of Hazing at Other Universities

Plaintiffs also take issue with the trial court's refusal to allow them to introduce specific instances of hazing at other universities reported to Kappa National.

Following the trial court's ruling disallowing the presentation of evidence of prior instances of hazing reported to the national fraternity, plaintiffs filed an application for a supervisory writ with this court. In granting the writ, this court ordered:

The jury may be informed that Executive Order No. 2 was issued by the national fraternity in response to reports of hazing incidents at other local chapters and that following the issuance of Executive Order No. 2 the national organization received further reports of hazing at other local chapters. This may be done by stipulation or by evidence limited to the general proposition stated above. (Emphasis added).

So instructed, the trial court properly limited plaintiffs to the presentation of non-specific testimony that hazing occurred both before and after Kappa National promulgated Executive Order No. 2. Furthermore, inasmuch as the jury imposed liability upon the national fraternity even without evidence of other incidents of hazing, plaintiffs were not prejudiced by the exclusion of this evidence.

On this same issue, Kappa National urges that they are entitled to de novo review by this court because plaintiffs inflamed the jury by repeated reference to hazing incidents at other universities, evidence which was specifically excluded by the trial court. Particularly, Kappa National finds egregious Kendrick's mother's unsolicited and unresponsive reference to a killing arising out of hazing at another university.

We have reviewed the record and have found only one such reference. The trial court, after excusing the jury, chastised Mrs. Morrison and instructed plaintiffs and their counsel that the court would not allow any further reference to specific hazing incidents at other universities. Realizing that "you can't unring a bell that has been rung," the trial court, without any objection from Kappa National's attorney, did not give a limiting instruction to the jury. Under these circumstances, we find no legal error warranting a de novo review.

COURT'S CHARGE TO JURY ON FAULT APPORTIONMENT

Plaintiffs argue that the trial court erred...