Kaufman v. Wal-Mart Stores, Inc. et al, No. 2:2016cv10446 - Document 89 (E.D. La. 2017)

Court Description: ORDER AND REASONS granting 78 Motion for New Trial or alternatively, Motion for Judgment Notwithstanding the Verdict. The Court will hold a scheduling conference to select a new trial date. Signed by Judge Susie Morgan. (bwn)
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Kaufman v. Wal-Mart Stores, Inc. et al Doc. 89 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A MICH ELLE KAU FMAN , Plain tiff CIVIL ACTION VERSU S N O. 16 -10 4 4 6 W AL-MART STORES, IN C., ET AL., D e fe n d an ts SECTION : “E” ( 3 ) ORD ER AN D REAS ON S Before the Court is a m otion for judgm ent notwithstanding the verdict, or alternatively, a new trial filed by Plaintiff Michelle Kaufm an. 1 The m otion is opposed. 2 Plaintiff filed a reply to the Defendants’ opposition. 3 The Court finds that Plaintiff is entitled to a new trial as set forth below. BACKGROU N D This is a personal injury case involving falling m erchandise. The accident occurred on J uly 18 , 20 15 at the Wal-Mart located at 190 1 Tchoupitoulas Street in New Orleans, Louisiana. The case was tried on J uly 31 and August 1, 20 17 before an eight-person jury. 4 The jury found that Wal-Mart was negligent and that Wal-Mart was the legal cause of the injuries suffered by Plaintiff. 5 The jury awarded Plaintiff the following dam ages 6 : Past m edical expenses Future m edical expenses $ 9696.99 $ 90 0 .0 0 (1 Filler Dr. Pelias) and $ 0 Past physical and m ental pain suffering and loss of enjoym ent of life: Future physical and m ental pain and $ 0 suffering and loss of enjoym ent of life 1 R. Doc. 78 . R. Doc. 80 . 3 R. Doc. 85. 4 R. Docs. 62, 66. 5 R. Doc. 69. 6 Id. 2 1 Dockets.Justia.com Physical disfigurem ent $0 The jury awarded Plaintiff past m edical expenses in the am ount of $ 9696.99, but only $ 90 0 for future medical expenses. 7 At trial, Plaintiff offered the m edical opinions of Dr. Christopher Beck, Dr. Alireza Sadeghi, Dr. Marilyn E. Pelias, and Dr. Michael M. Worley regarding the extent of her injuries and her future m edical expenses. Dr. Beck described the traum a Plaintiff’s facial bones sustained when the m erchandise fell on her. He explained that “a fracture . . . showed up on all three scans of a bone called the frontal process of her m axilla.”8 He testified that the fracture was caused by the falling m erchandise. 9 Both Dr. Pelias and Dr. Sadeghi testified that Plaintiff sustained a perm anent injury in the form of fat atrophy or flattening resulting in physical disfigurem ent in connection with the facial fractures she incurred. 10 Although in their testim ony the doctors recom m en ded different treatm ents to rem edy Plaintiff’s disfigurem ent, both doctors agreed that Plaintiff will require future m edical treatm ent. Dr. Pelias testified that, “[a]n estim ate of the filler expense that Ms. Kaufm an will incur in the future is as follows: Approxim ately $ 2,20 0 .0 0 in filler cost every 9– 12 m onths will likely be needed for m aintenance after the initial restoration of her contour.”11 Dr. Sadeghi 7 The parties stipulated that prior to trial, Plaintiff incurred $ 9,696.19 in past m edical bills. R. Doc. 58 at ¶ 1. The jury determ ined, however, that Plaintiff was en titled to recover these m edical expenses. 8 R. Doc. 78 -9 at 3– 4. 9 R. Doc. 78 -11 at 3– 4. 10 Dr. Pelias testified: Q: All right. So, Doctor, the fat loss, the volum e loss that Ms. Kaufm an has experienced is perm anent; is that fair to say? A: Yes. Because you have a given num ber of fat cells an d they're in a given location. And if—if som e of those are in jured or killed, those fat cells will never com e back. So other fat cells can grow and shrin k with gain and loss of weight, but once a fat cell is dead, it—it doesn't reform . Dr. Sadeghi testified: Q: Now, she had a loss of volum e on the right side which I believe is where the fracture was, where she told you she was struck? A: Right. R. Docs. 78 -15 at 3; 78-20 at 3– 4. 11 R. Doc. 78 -22 at 1. Dr. Pelias also explain ed: 2 recom m en ded Plaintiff undergo a fat grafting procedure. Dr. Sadeghi estim ated this procedure would cost approxim ately $ 40 ,40 0 , including Dr. Sadeghi’s $ 7,50 0 .0 0 fee and the hospital’s fee of $ 32,90 0 . 12 Before trial, the parties stipulated that if a third doctor, Dr. Worley, were called to testify, he would testify that the im plant procedure he recom m en ded would cost $ 6,675.0 0 . 13 Defendants did not seek an in depen dent m edical evaluation of Plaintiff and stipulated that, if econ om ic loss expert G. Randolph Rice, Ph.D. were called to testify, he would testify that the present value of the future m edical treatm ent recom m ended and projected by Dr. Pelias is $ 10 1,20 0 .0 0 if the filler is done every 9 m on ths and $ 75,262.0 0 if done every 12 m onths. 14 At no point during the trial did any witness testify the cost of Plaintiff’s future m edical treatm ent would be $ 90 0 .0 0 . Plaintiff now m oves for a judgm ent notwithstanding the verdict, or, in the alternative, a new trial, arguing the jury’s $ 90 0 award for future m edical treatm ent is grievously insufficient to defray her future m edical treatm ent. AN ALYSIS In her m otion, Plaintiff contends, inter alia, that the jury’s award for her future m edical expenses was “woefully inadequate.”15 She argues that because the jury’s award Despite the wide variation in type and duration of fillers, the long term costs are very sim ilar. Currently Bellafill has the longest indication, when used intraderm ally it can test up to 5 years. It is unknown how lon g it will last in a subcutaneous position. Bellafill costs $ 1,20 0 per syringe and 4-5 syringes would be n eeded to adequately fill her defect layered in over a period of a few m onths. Id. R. Docs. 78 -24 at 3; 78-26 at 3. 13 R. Docs. 78 -28 at 1; 78 -29 at 1. 14 R. Doc. 58 at ¶ 3. 15 R. Doc. 78 -1 at 26. 12 3 is so deficient, the “Court [should] increase the jury’s award for future m edical treatm ent.”16 “The Seventh Am endm ent to the [U.S] Constitution not only preserves the right to trial by jury but assures that ‘no fact tried by a jury[] shall be otherwise re-exam ined in any Court of the United States, than according to the rules of the com m on law.’”17 However, “[w]here the verdict returned by a jury is palpably and grossly inadequate or excessive, it should not be perm itted to stand.”18 In either case, “both parties rem ain entitled, as they were entitled in the first instance, to have a jury properly determ ine the question of liability and the extent of the injury by an assessm ent of dam ages.”19 [W]here the verdict is too sm all, an in crease by the court is a bald addition of som ething which in no sense can be said to be included in the verdict.”20 Thus, this Court cannot grant Plaintiff the additur she seeks without violating the Seventh Am endm ent. 21 In the alternative, Plaintiff asks this Court to order a n ew trial. “[I]n an action based on state law but tried in federal court by reason of diversity of citizenship,” as here, “a district court m ust apply a new trial or [additur] standard according to the state law’s controlling jury awards for excessiveness or inadequacy.”22 Under Louisiana law, a party is entitled to a new trial “[w]hen the verdict or judgm ent appears clearly contrary to the law and the evidence.”23 The law perm its a state court to grant a new trial “in any case if 16 R. Doc. 78 at 27, 33. Tay lor, 868 F.2d at 164. 18 Dim ick v. Schiedt, 293 U.S. 474, 486 (1935); accord Tay lor v. Green, 868 F.2d 162, 164 (5th Cir. 1989). 19 Dim ick, 293 U.S. at 486. 20 Id. 21 The Seventh Am endm ent prohibits additurs in federal court, at least where the am ount of dam ages is in dispute, as it is here. See H aw kes v. Ay ers, 537 F.2d 8 36, 837 (5th Cir. 1976). 22 Fair v. Allen, 669 F.3d 60 1, 60 4 (5th Cir. 20 12) (quoting Foradori v. Harris, 523 F.3d 477, 498 (5th Cir. 20 0 8)). 23 La. Code Civ. P. art. 1972. 17 4 there is good ground therefor, except as otherwise provided by law.”24 When granting a new trial, the court m ay evaluate the evidence and draw its own inferences an d conclusions. 25 Under Louisiana law, additur is the only alternative to a new trial when the jury’s dam ages award is legally deficient. Louisiana Code of Civil Procedure article 1814 provides for rem ittitur or additur as an alternative to a new trial as follows: If the trial court is of the opinion that the verdict is so excessive or inadequate that a new trial should be granted for that reason only, it m ay indicate to the party or his attorney within what tim e he m ay enter a rem ittitur or additur. This rem ittitur or additur is to be entered only with the consent of the plaintiff or the defendant as the case m ay be, as an alternative to a new trial, and is to be entered only if the issue of quantum is clearly and fairly separable from other issues in the case. If a rem ittitur or additur is entered, then the court shall reform the jury verdict or judgm ent in accordance therewith. Thus, “[w]hen a jury awards an am ount that is lower than the lowest reasonable am ount, additur becom es proper.”26 Although the Seventh Am endm ent bars a federal court from entering an additur to supplem ent a legally deficient jury verdict, Louisiana courts are not sim ilarly constrained. 27 Because a federal court m ay not enter an additur, when an additur would otherwise be proper under Louisiana law, the only option available to a federal court sitting in diversity is to grant a n ew trial. At trial, Plaintiff offered the uncontroverted testim ony of three physicians, each of whom testified Plaintiff would require future m edical treatm ent. The “lowest reason able am ount” offered into evidence at trial for Plaintiff’s future medical expense was 24 Id. art. 1973. Joseph v. Broussard Rice Mill, Inc., 20 0 0 -0 628 (La. 10 / 30 / 0 0 ); 772 So. 2d 94, 10 4. 26 Accardo v. Cenac, 97-2320 (La. App. 1 Cir. 11/ 6/ 98), 722 So.2d 30 2, 30 7– 0 8. 27 The Seventh Am endm ent of the U.S. Constitution is one of the few rights contained within the Bill of Rights that has not been m ade applicable to the states. See Rudolph v. Massachusetts Bay Ins. Co., 472 So. 2d 90 1, 90 3 (La. 1985). 25 5 $ 6,675.0 0 . Although the testim ony at trial established that the lowest reasonable am ount for Plaintiff’s future m edical needs is $ 6,675.oo, the jury awarded her only $ 90 0 in future m edical expenses. Given the uncontroverted testim ony at trial and the fact that the jury’s dam age award for Plaintiff’s future m edical expenses was drastically lower than the lowest reasonable estim ate subm itted into evidence, this award is clearly inadequate. 28 Under these circum stances, a new trial is required. Accordingly; CON CLU SION IT IS ORD ERED that Plaintiff Michelle Kaufm an’s m otion for new trial is GRAN TED . The Court will hold a scheduling conference to select a new trial date. N e w Orle a n s , Lo u is ian a, th is 8 th d ay o f D e ce m be r, 2 0 17. ______________________ _________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 28 See Accardo, 722 So. 2d at 311 (findin g that the jury’s award for dam ages was “so deficiently low as to constitute an abuse of discretion” and, therefore, finding “the trial court's grant of additur was proper”). 6