Strauss v. Continental Airlines, Inc.

• Decision Date: 10 January 2002
• Docket Number: No. 14-00-00694-CV.,14-00-00694-CV.
• Citation: 67 S.W.3d 428
• Parties: Berney L. STRAUSS, Appellant/Cross-Appellee, v. CONTINENTAL AIRLINES, INC., Appellee/Cross-Appellant.
• Court: Texas Court of Appeals

67 S.W.3d 428

Berney L. STRAUSS, Appellant/Cross-Appellee, v. CONTINENTAL AIRLINES, INC., Appellee/Cross-Appellant.

No. 14-00-00694-CV.

Court of Appeals of Texas, Houston (14th Dist.).

January 10, 2002.

Rehearing Overruled February 28, 2002.

Don Weitinger, David M. Gunn, Houston, for appellant.

Robert L. Pittsford, Robert Lee Galloway, Houston, for appellee.

Panel consists of Chief Justice BRISTER and Justices FOWLER and SEYMORE.

OPINION

WANDA McKEE FOWLER, Justice.

Appellant Berney L. Strauss sued appellee Continental Airlines, Inc. for personal injuries suffered as Strauss was boarding a Continental Airlines flight. The case was tried to a jury that found Continental Airlines 75% negligent and Strauss 25% negligent, and awarded damages, including $1,024,000 for loss of earning capacity. The trial court granted Continental Airlines a judgment notwithstanding the verdict on the loss of earning capacity damages, from which Strauss appeals. Continental cross-appeals, arguing that the trial court erred in (1) denying Continental's motions for mistrial and new trial based on Strauss's improper communications with the jurors; (2) excluding records of Strauss's psychiatric treatment; and (3) excluding the testimony of Continental's expert psychiatric witness. For the reasons stated below, we affirm.

FACTS

Strauss is a personal injury trial lawyer in private practice in New Orleans, Louisiana. In April of 1995, as he was boarding a Continental Airlines flight at the airport in Newark, New Jersey, a Continental employee abruptly shut the airplane door in front of him and Strauss suffered spinal injuries while moving out of the way. He eventually underwent two surgical procedures, a lumbar laminectomy and a threelevel fusion of the spine. As a result of his injuries, Strauss suffered from pain and was unable to work full-time.

Strauss sued Continental for breaching the common carrier's duty of care. The trial began on July 27, 1999 and ended August 13, 1999. By the time of trial, Strauss had resumed working full-time. The jurors heard from numerous witnesses, including Strauss, his wife, Continental employees, physicians and other medical personnel, lawyers and non-lawyers from Strauss's law firm, and others, live or by deposition. At the conclusion of the trial, the jury returned a 10-2 verdict that apportioned fault 75% to Continental and 25% to Strauss. The jury awarded Strauss the following: (1) $383,712 for physical pain, mental anguish, physical impairment, disfigurement and medical care in the past; (2) $99,750 for future physical pain, mental anguish, physical impairment, disfigurement and medical care; and (3) $1,024,000 for loss of earning capacity in the past.

After the verdict, Continental filed a prejudgment motion for mistrial, motion for new trial, and motion for judgment notwithstanding the verdict (JNOV). The trial court denied Continental's motions for mistrial and new trial, but granted Continental's motion for JNOV on the grounds that no evidence supported the jury's finding that Strauss had suffered a loss of earning capacity in the past. On May 2, 2000, judgment was entered for $362,596.50 plus prejudgment interest. Continental filed a post-judgment motion for new trial on July 12, 2000, which the trial court denied. Both Strauss and Continental appeal.

STRAUSS'S APPEAL

We begin with Strauss's sole issue on appeal, his challenge to the trial court's grant of Continental's JNOV on Strauss's claim for lost earning capacity in the past.

As part of his damage claim, Strauss alleged losses in past and future earning capacity. The damage claim focused on legal business Strauss predicted he would have attracted had he been able to drive on a frequent basis to Kosciusko, Mississippi. Strauss testified that Kosciusko was a country town with a sizeable community of maritime workers, so the potential for personal injury maritime claims was good. Because there was no airport in Kosciusko, however, it was necessary to drive several hours by car to engage in marketing activities on a regular basis. Strauss alleged that his ability to obtain referrals in this manner was hampered as a result of his injuries. He did not allege that he was unable to work on cases after they were obtained. As Strauss explained it in his appellate brief, he could "do the grinding but not the finding."

Strauss presented the jury with three alternative damage calculations in support of his lost earning capacity claim. Under the first method, he averaged his annual client fees for the years preceding the accident and then deducted what he would have paid in referral fees to other attorneys in the event that he had relied on them for the referrals. He calculated an average annual drop in fees of $297,000, and, applying that to a period of 4½ years after the injury, he calculated a total damage amount of $1,262,000.

Under Strauss's second method, he totaled his pre-accident fees, after subtracting $1 million for a case he described as an "irregular circumstance," and averaged the annual fee amount for the pre-accident period. He then calculated the average annual fee amount for the period after the accident, and determined that the average annual difference amounted to a drop of $256,000. Over a 4½ year period, this difference would again total over $1 million.

Under the third method, Strauss took his gross fees earned after the accident, averaged them to reach an annual figure and then adjusted that average by 40%, the percentage of disability he claimed. The 40% figure was based on the testimony of an orthopedic surgeon who testified that Strauss's injuries corresponded to a physical disability of about a 40% loss of function of the spine. Using this method, Strauss arrived at a total loss of $1,343,000.

The jury subsequently awarded Strauss $1,024,000 for loss of earning capacity in the past, and zero for loss of earning capacity in the future.

Strauss contends that the court erred in granting Continental's JNOV on the damages for loss of earning capacity in the past because it mistakenly equated loss of earning capacity with lost profits, and further erred in incorrectly applying the lost profits analysis to require that Strauss show the loss of specific opportunities. Strauss asserts that the concept of lost profits belongs in commercial cases, where it is merely a type of consequential damages, and not in personal injury cases. Further, Strauss contends that the evidence he presented is more than sufficient to support the jury's finding.

In response, Continental asserts that the issue is in fact one of lost profits, but that under any theory, Strauss has presented no evidence of loss of earning capacity in the past. Continental argues that Strauss's claim for damages is unique because Strauss does not contend that his injury affected his ability to work, only his ability to find work. Consequently, any finding of damages was premised upon multiple layers of unsupported speculation. Continental distinguishes Strauss' claim from the more typical claim of a wage earner, whose salary is readily ascertainable, and contends that Strauss failed to prove with any degree of reasonable certainty that he would have earned the amount of money he was awarded. Continental complains that Strauss provided no evidence to establish that (1) he lost any cases because of his injuries; (2) any lost cases would have been resolved by the time the case went to trial; (3) Strauss would have been successful in the cases he claims to have lost; (4) Strauss could collect on any judgments for cases he claims to have lost; and (5) Strauss could make a profit on any of the cases he claims to have lost. In connection with the last point, Continental contends that Strauss's damage models do not account for the fees, costs, and expenses associated with litigation. Finally, Continental argues that Strauss's own testimony reflected that his income actually increased after the incident rather than decreased.

1. Standard of Review

A trial court may disregard a jury's findings and grant a motion for JNOV only when there is no evidence upon which the jury could have made its findings. Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990). To determine whether the trial court erred in granting a motion for JNOV, the appellate court must consider only the evidence and the reasonable inferences that support the jury's answers. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex.1990). The record is reviewed in the light most favorable to the jury's finding, considering only the evidence and inferences that support the finding and rejecting the evidence and inferences contrary to the finding. See Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex.1986). To uphold a JNOV, we must decide that no evidence supports the jury's findings. Mancorp, 802 S.W.2d at 227; Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d 162, 164 (Tex.App.-Texarkana 1998, no pet.). The JNOV should be reversed when there is more than a scintilla of competent evidence to support the jury's finding. Mancorp, 802 S.W.2d at 228.

2. Analysis

At the outset, we must distinguish between "past lost earnings" and "loss of earning capacity." Past lost earnings are the actual loss of income due to an inability to perform a specific job a party held from the time of injury to the date of trial.¹ Border Apparel-East, Inc. v. Guadian, 868 S.W.2d 894, 897 (Tex.App.-El Paso 1993, no writ). This differs from loss of earning capacity. See id.; Metropolitan Life Ins. v. Haney, 987 S.W.2d 236, 244 (Tex.App.-Houston [14th Dist.] 1999, pet. denied).²

Loss or impairment of past, as well as future, earning capacity is recoverable as an element of damages in a personal injury case. Harris v. Belue, 974 S.W.2d 386, 395 (Tex.App.-Tyler 1998, pet. denied). The measure of this type of damages is the plaintiff's diminished earning power or earning capacity in the past or in the future...