Randolph v. Laeisz
| Citation | 896 F.2d 964 |
| Decision Date | 23 March 1990 |
| Docket Number | 89-2391,Nos. 88-6147,s. 88-6147 |
| Parties | , 30 Fed. R. Evid. Serv. 58 John RANDOLPH and Jennie Randolph, Plaintiffs-Appellees, and Reliance Insurance Company, Intervenor, v. F. LAEISZ, Defendant-Appellant. John RANDOLPH and Jennie Randolph, Plaintiffs, v. F. LAEISZ, Defendant-Third Party, Plaintiff-Appellant, v. I.T.O. CORPORATION, and Gulf and Southern Terminal Corporation, Third Party Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Kenneth D. Kuykendall, Royston, Rayzor, Vickery & Williams, Houston, Tex., for F. Laeisz.
Mithoff & Jacks, Robert Mithoff, Scott Rothenberg, Houston, Tex., for John & Jennie Randolph.
Tom Fitzhugh, III, Fitzhugh & Associates, P.C., Houston, Tex., for I.T.O. & Gulf & Southern Terminal Corp.
Britt K. Davis, Houston, Tex., for Reliance.
Appeals from the United States District Court for the Southern District of Texas.
Before HIGGINBOTHAM, SMITH, and DUHE, Circuit Judges.
F. Laeisz, owner of the M/V INCOTRANS PROGRESS, contracted with Gulf and Southern Terminal Corporation to procure a stevedore to unload the vessel. Gulf and Southern, in turn, contracted with ITO Corporation to conduct the stevedoring operations and with Southern Dock Company to serve as the checker. John Randolph was employed by Southern Dock as a checker. Because the arguments of Gulf and Southern and ITO Corporation are identical at this point in the proceedings, they will be referred to collectively as ITO.
While unloading was underway John Randolph slipped and fell on the gangway of the M/V INCOTRANS PROGRESS. Randolph contended that earlier that day the vessel had placed the gangway over a fixed crane track and failed to honor ITO's request to remove it. Thereafter, the ITO employee operating the crane ran into and damaged the gangway. Tony Rigdon, ITO's stevedore superintendent, and Klaus Ramming, the vessel's third mate, inspected the damaged gangway; neither thought it necessary to halt the cargo operations to repair the gangway. Thirty minutes later Randolph's accident occurred.
Randolph and his wife sued Laeisz under 33 U.S.C. Sec. 905(b), alleging vessel negligence. Shortly before trial Laeisz filed a third party complaint seeking indemnity from Gulf and Southern Terminal Corporation and ITO Corporation. The trial court severed the principal and third party demands and proceeded to trial on the principal suit. The jury returned a verdict in favor of Randolph, finding Laeisz 100% negligent and awarding John Randolph $839,497.35 in damages and Jennie Randolph $50,000 for loss of consortium. Thereafter, in the severed action, the trial court granted ITO's motion for summary judgment and dismissed Laeisz' complaint. 707 F.Supp. 275.
Laeisz appeals the jury's award, objecting to several aspects of the Randolphs' economist's testimony, and protests the trial court's award of prejudgment interest calculated on the basis of Texas law. Laeisz also contests the trial court's grant of summary judgment in the severed action. His appeals are consolidated before this Court. We reverse the jury verdict as to damages and remand for a new trial on damages and reverse the district court's grant of summary judgment.
Laeisz objects to the jury's award of $670,000 for lost wages ($95,000 past and $575,000 future), contending that the Randolphs' economic expert's calculations were improper. Absent a definite finding of error, this court is not at liberty to reverse the jury's award. Gautreaux v. Insurance Co. of North America, 811 F.2d 908, 913 (5th Cir.1987).
The Randolphs' economist testified that he first calculated the gross wage Randolph would have earned in 1984, the year of his injury, but for the accident by averaging the number of hours Randolph actually worked in the six years prior to his injury. He multiplied this average by the 1988 wage rate to derive Randolph's gross yearly income and used this figure as Randolph's wage to calculate Randolph's lost stream of income. Laeisz complains that the economist failed to consider the limitation on Randolph's earnings resulting from a union merger and should not have converted pre-1984 earnings to 1988 dollars.
Prior to April 1983 Randolph worked in both the clerk/checker union and in the longshore union. These unions merged in April 1983, resulting in a loss of hours available for Randolph to work. From April 1983 until July 1984, when Randolph's injury occurred, Randolph only worked in the clerk/checker union. The economist did not use the average of hours worked after the merger. There is no dispute that the union merger resulted in a loss of hours available for Randolph to work prior to his injury. Laeisz presented evidence that work hours available to members of the clerk/checker union decreased by 40% in the years 1984-1987.
The economist testified that he increased Randolph's actual earnings prior to injury (1979-84) to reflect "1988 dollars." Thus although Randolph's 1979 tax return showed that he earned $29,397, the economist increased this figure to $45,895 in 1988 dollars. The effect of this increase was to raise Randolph's average net wages from $24,442 to $30,289, the figure used in computing past and future wage loss. On cross-examination the economist explained that what he did was to convert Randolph's actual earnings to what he would have earned working at the same number of hours (average of 1979-1984) had he worked those hours in 1988 at the 1988 wage rate. This calculation assumed that the hourly wage rate in 1984 would continue to increase and that Randolph would work the same number of hours after his injury as he had during the period 1979-1984.
Finally, the economist reduced the past wage loss figures by 25% to account for taxes and work related expenses and by a further 20% to account for bad business conditions in the Houston area. The 20% reduction was also intended to take into account the effect of the union merger on Randolph's earning capacity. The economist imposed a similar 10% reduction, an "economy surcharge", for Randolph's future wage loss in 1988, 1989, and 1990. Beginning in 1991 the economist removed the 10% "economy surcharge" from the wage loss calculation because he assumed that the local economy would begin to improve and Randolph would gain increased union seniority.
Calculation of the lost income stream begins with the gross earnings of the injured party at the time of the injury. Culver v. Slater Boat Co., 722 F.2d 114, 117 (5th Cir.1983) (en banc), cert. denied, 467 U.S. 1252, 104 S.Ct. 3537, 82 L.Ed.2d 842 (1984) (Culver II ). Culver II requires the court to use Randolph's gross earnings at the time of injury. We need not rule on the validity of the economist's averaging the number of hours Randolph worked in the six years prior to his injury or of his conversion of 1984 dollars to 1988 dollars under Culver II because the record does not support the validity of the economist's actual mechanical calculations. His testimony on direct and cross examination was confusing at best and nothing else in the record clarifies how the economist reached his end result figures.
Furthermore, we find that other portions of the economist's testimony were clearly improper. Though an expert may give his opinion on a particular matter within the scope of his expertise, that opinion must be based on facts. Hernandez v. M/V Rajaan, 841 F.2d 582, 588 (5th Cir.1988). The economist's determination that a 20% (for the years 1984-87) and 10% (for the years 1988-90) reduction in lost wages was appropriate for market conditions and union merger was not based on any fact in the record. In this instance the expert's testimony served as substantive evidence rather than opinion interpreting facts in evidence. The economist's unsubstantiated belief that "presumably market conditions are improving all the time" does not suffice to justify the substitution of percentage reductions for actual hours worked and wages earned. See Gautreaux, 811 F.2d at 914-15; In re Air Crash Disaster at New Orleans, Louisiana, 795 F.2d 1230, 1233-34 (5th Cir.1986). Nor does he explain how the loss of available work was factored into the percentages.
Laeisz further objects to the figure used by the economist for calculation of post injury earnings. Randolph returned to work August 1, 1987 and earned $12,377 that year. The economist used this figure rather than a figure that would properly represent Randolph's earnings over an entire year. The economist admitted on cross-examination that Randolph's future earnings based on his actual earnings prior to trial would exceed $20,000 per year and that $12,377 represented Randolph's "partial earning capacity".
In Gautreaux, 811 F.2d at 914-15, this Court held that it was error for the economist to use the minimum wage in calculating the plaintiff's future earning capacity where the record clearly showed that his wage-earning capacity exceeded minimum wage. We find that Randolph's economist similarly erred.
The economist presented three work life expectancy figures: age 60, age 62.3 and age 65. He testified that the 62.3 age was based upon the United States Bureau of Labor Statistics computations. The official statistics themselves were not admitted into evidence. Laeisz asserts that the most recent report demonstrates that Randolph's work life expectancy at the time of his injury was 60.4. Laeisz cross-examined the economist on this point but failed to introduce evidence regarding the appropriate work life expectancy. On remand, the parties should be mindful that absent evidence that a particular person is likely to live and work a longer, or shorter, period than the average, computations should be based on the statistical average. Madore v. Ingram Tank Ships, Inc., 732 F.2d 475, 478 (5th Cir.1984).
In summary, we here echo the message given to our able...
To continue reading
Request your trial
-
Gonzalez v. U.S., Civil Action No. B-06-196.
...the ship repair or shipbuilding task. See Pimental v. LTD Canadian Pacific Bul, 965 F.2d 13, 15 (5th Cir.1992) (citing Randolph v. Laeisz, 896 F.2d 964, 970 (5th Cir.1990)); see Futo v. Lykes Bros. S.S. Co., Inc., 742 F.2d 209, 213 (5th Cir.1984). In this case, Gonzalez was employed by Isid......
-
Christophersen v. Allied-Signal Corp.
...("Our message to our able trial colleagues: it is time to take hold of expert testimony in federal trials."); Randolph v. Laeisz, 896 F.2d 964, 968 (5th Cir.1990) ("we here echo the message given to our able trial colleagues in In re Air Crash Disaster ..."); Brock v. Merrell Dow Pharmaceut......
-
Tauzier v. East
...Greenwood v. Societe Francaise De , 111 F.3d 1239, 1249 (5th Cir.1997) ).30 Id. at 10–11 (citing 33 U.S.C. § 941 ; Randolph v. Laei s z , 896 F.2d 964, 970 (5th Cir.1990) ).31 Id. at 11 (citing Scindia , 451 U.S. at 170, 101 S.Ct. 1614 ).32 Id. (quoting 709 F.2d 1031, 1036 (5th Cir.1983) ).......
-
Hosp. Corp. of America & Subsidiaries v. Comm'r of Internal Revenue
...an adequate foundation of relevant facts, data, or opinions, however, is inadmissible conjecture or speculation. See Randolph v. Laeisz, 896 F.2d 964, 967–968 (5th Cir.1990); Twin City Plaza, Inc. v. Central Sur. & Ins. Corp., 409 F.2d 1195, 1200 (8th Cir.1969); Graham, Federal Practice and......