Schwamb v. Delta Air Lines, Inc.

• Decision Date: 10 November 1987
• Docket Number: No. 86,86
• Citation: 516 So.2d 452
• Parties: Howard K. SCHWAMB, Jr. and Mary P. Schwamb v. DELTA AIR LINES, INC., Jane Doe, Mary Doe, Richard Smith, and Dudley Anderson. CA 0508.
• Court: Court of Appeal of Louisiana — District of US

Page 452

516 So.2d 452

Howard K. SCHWAMB, Jr. and Mary P. Schwamb v. DELTA AIR LINES, INC., Jane Doe, Mary Doe, Richard Smith and Dudley Anderson.

No. 86 CA 0508.

Court of Appeal of Louisiana First Circuit.

Nov. 10, 1987.

Rehearing Denied Jan. 5, 1988.

Writs Denied March 11, 1988.

Paul H. Due, L.D. Sledge and Charles Wm. Roberts, Baton Rouge, Joseph H. Simpson, Amite, for plaintiffs-appellants.

Francis G. Weller and James Hahn, New Orleans, for defendant-appellant Delta Air Lines, Inc.

Paul G. Preston, New Orleans, for defendant-appellant Harley E. Sexton, III.

Esmond Phelps, II, New Orleans, for defendant-appellant McDonnell Douglas Corp.

Donald O. Collins and Vivian Madison, New Orleans, for defendant-appellant Heath Tecna Aerospace.

Nadine Ramsey, New Orleans, for defendant-appellant Nat. Fire Ins. Co.

Before EDWARDS, WATKINS and LeBLANC, JJ.

WATKINS, Judge.

Howard K. Schwamb, Jr. was injured on a Delta Air Lines flight when a briefcase fell from an overhead luggage bin onto his head. After trial, the jury found that Delta was solely liable for Schwamb's injuries and awarded damages for lost earnings, general damages, and damages for Mrs. Schwamb's loss of consortium. It awarded nothing for Schwamb's loss of anticipated profits from a proposed business project.

We find that a trial court error tainted the jury verdict as to liability; however, our independent review of the record convinces us that Delta was solely liable. We find no manifest error in the jury awards concerning lost earnings, loss of anticipated profits, and loss of consortium. However, we find the award for general damages clearly excessive and reduce it. We find no reversible error in the trial court's rulings concerning plaintiffs' counsel's closing argument, the exclusion of two letters of compromise, jury instructions, interest or damages for future losses, and expert witness fees.

INTRODUCTION

On the evening of September 29, 1983, Dudley Anderson, Howard K. Schwamb, Jr., and Michael Crow were involved in a discussion on a Delta Air Lines flight. The three were returning to New Orleans from a business trip to Chicago and were seated on the right or starboard side of the DC9 aircraft, in the first row of coach class seats. Anderson, the corporate treasurer of G.H.R. Energy Corp. ("Good Hope") was in the aisle seat; Schwamb, a vice president in charge of construction and engineering at Good Hope, was in the center seat; and Crow, Good Hope's outside counsel, was in the window seat.

As the plane began its descent into New Orleans, another passenger, Harley E. Sexton, III, rose to get his coat from the luggage bin above Anderson, Schwamb and Crow. After Sexton depressed the latch, a briefcase fell from the bin, struck Schwamb on the head, and knocked Schwamb's head to the tray table in front of him. The plane landed in New Orleans within a half hour and Schwamb then drove home to Ponchatoula, Louisiana.

Schwamb awoke the next morning with a headache, a lump on his head, and soreness in his neck, shoulders and left arm. He saw his family physician that day and, when his arm and left leg started to become numb, Schwamb was taken to a hospital where he remained for about a week. After his discharge, Schwamb continued physical therapy, but complained of persistent pain and dizziness. He was examined and treated thereafter by a number of physicians, but was unable to return to work.

Howard Schwamb and his wife, Mary, brought the present lawsuit against: Harley Sexton (the passenger who opened the bin) and his insurers; Delta Air Lines, Inc. and its insurer; and Diane Manget (one of the flight attendants). ¹ Plaintiffs sought damages for Howard Schwamb's physical pain and suffering, loss of earnings, and loss of anticipated business profits from a proposed real estate project, as well as for Mrs. Schwamb's loss of consortium. Delta and the flight attendant filed a third party demand against Sexton. ²

After a two-week jury trial in Tangipahoa Parish, the jury returned a verdict against Delta Air Lines alone, finding that Harley Sexton and the flight attendant, Diane Manget, were not negligent. The jury then awarded damages for: past and future physical pain and suffering; past and future mental anguish; disability; past and future medical expenses; past and future loss of earnings; and past and future loss of consortium, services and society. The jury awarded nothing for Schwamb's claimed loss of profits from the proposed project.

Delta and its insurer appealed suspensively. Plaintiffs answered the appeal with respect to the dismissal of Schwamb's claim for loss of profits, and appealed devolutively the dismissal of their claims against Sexton and his insurer.

The following issues are before us: (A.) Did the trial court improperly permit plaintiffs' witness to give his opinion as an expert? (B.) Is Harley E. Sexton, Jr. liable for plaintiffs' injuries? (C.) Is Delta Air Lines liable for plaintiffs' injuries? (D.) Did the trial court improperly permit plaintiffs' counsel to use a "cartoon" and make an allegedly prejudicial remark in closing argument? (E.) Did the trial court improperly exclude two letters written by Schwamb to Delta, as letters of compromise? (F.) Did the trial court give erroneous jury instructions? (G.) Did the jury award excessive general damages, lost earnings and damages for loss of consortium, and did it err in awarding plaintiffs nothing for loss of anticipated business profits? (H.) Did the trial court award excessive witness fees?

A. TESTIMONY OF PLAINTIFFS' EXPERT

Delta contends that the trial court made two errors with respect to the testimony of plaintiffs' expert witness, Charles O. Miller. It first contends that plaintiffs failed to supplement their interrogatory answer concerning the substance of Miller's testimony and that the trial court should therefore have stricken his testimony. For reasons discussed below, we disagree. Delta's second contention, which we do agree with, is that the trial court erred in permitting Miller to state his opinion as to the cause of the accident and the credibility of another witness.

Failure to Supplement Interrogatory Answers

In response to Delta's interrogatory request for the identity of each expert to be called and the general nature of his testimony, plaintiffs identified C.O. Miller as their only expert witness three weeks before trial. They indicated that the general nature of Miller's testimony would be "design defects of luggage compartment." However, at his deposition six days before the start of trial, Miller testified primarily about Delta's operational negligence (e.g. its inadequate safety procedures) rather than about design defects. Delta then filed a motion to strike Miller's testimony about operational negligence, and engaged its own safety expert. The trial court denied Delta's motion at the start of trial; Miller then testified exclusively about operational negligence.

We agree that plaintiffs breached the obligation under LSA-C.C.P. art. 1428(1) to supplement their interrogatory answers, which continued up to the date of trial. ³ Buxton v. Evans, 478 So.2d 736, 739 (La.App. 3d Cir.), writ denied, 479 So.2d 921 (La.1985). However, a trial judge is given "great discretion in deciding whether to receive or refuse the offered testimony of witnesses and any bias must be in favor of receiving the testimony." Coignet v. Deubert, 413 So.2d 253, 256 (La.App. 4th Cir.1982).

Here, Delta deposed Miller six days before trial began, at which time it learned the substance of his trial testimony. Delta obtained its own expert witness before trial, but chose not to call him. The substance of Miller's testimony, that Delta's negligence had caused the accident, had been alleged in plaintiffs' petition and was not an issue new to the case. Finally, Delta chose not to seek the less drastic alternative of a continuance. See, e.g. Belk v. Montgomery Ward & Co., 501 So.2d 1008, 1014 (La.App. 2d Cir.1987). Compare Lodrigue v. Houma-Terrebonne Airport Comm'n, 450 So.2d 1004, 1006 (La.App. 1st Cir.1984). We find that, under the circumstances, Delta was not unfairly prejudiced and the trial court did not abuse its discretion in refusing to strike Miller's testimony.

Expert Opinions

The trial court accepted Miller as an expert in aeronautical engineering, aviation accident investigation and reconstruction, human factors, crash survivability, safety engineering, and safety management. Miller testified at length and gave his expert opinion about Delta's "operational negligence," that is, the failure to recognize and correct the risk presented to passengers by improperly loaded overhead luggage bins. Delta contends that this testimony was improper. For the reasons below, we disagree.

Delta's theory was that Sexton had dislodged the briefcase when he reached into the luggage compartment to retrieve his coat. Sexton, and plaintiffs, on the other hand, contended that the compartment had been improperly loaded or overstuffed, and that the briefcase fell out at the instant Sexton opened the luggage bin.

However, Mr. Miller was also permitted, over objection, to testify and give his expert opinion about the central factual issue in the case, the cause of the accident. Miller was also permitted to state his opinion about the credibility of another witness in the trial, Harley Sexton.

Miller was permitted to make the following remarks on the cause of the accident: "The question arises whether the bin was overstuffed and that was the force, if you will, that brought the suitcase out, or whether Mr. Sexton in reaching in or whatever, had a role in having that briefcase come out. I believe the former is what happened." This opinion was based on Sexton's statement that the bin door sprang open when he depressed the latch and that he was surprised when the briefcase fell out. Miller also remarked: "Because, given validity to the surprise ... I don't know and I don't...