Phill Stirling Junkins and Elissa Magee Junkins, Individually and On Behalf of The Minors Jacob Stirling Junkins and Katelin Alexandra Junkins VS Modern Muzzleloading, Inc. d/b/a Knight Rifles, Inc., EBSCO Industries, Inc., Pro Stop Hunting Supplies, Inc., J. R. Stafford, L.L.C., Ballistic Products, Inc., Hodgdon Powder Company, Inc., Paul Fay d/b/a Fay's Firearms and Brent Hoggatt d/b/a H & H Guns

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NOT DES FOR PUBLICATION GNATFD I TE ST OF LOUISIANA JRT CO F APPEAL FIRST CiRCUIT 2411 CA 0451 HILL 1 STIRLING JUNKINS ND ELISSA MAGEE JUNKINS VIDLJALLY IND AND ON BE OF THE MINORS F AI JACOB STIRLING JUNKINS AND KATELIN ALEXANDRA JUNKINS VERSUS MODERN MUZZLELOADI INC T AL NG Judgment Rend IDEC 1 2011 red 4 EALED API FROM THE TWENTY JUDICIAL DISTRICT COURT SECOND IN AND FOR THE PARISF OF WASHINGTON STATE OF LOUISIANA DOCKET NUMBER 92 B 131 THE HONORABLE AUGUST J AND JUUGE S y Bradl Rhorer Julie J Baxter Qaton Rouge Louisiana Attorneys tor Plaintifi Appellees s Phill Stirling Junkins arid Elissa Magee Junkins and Addison K Goff iV Ruston i aouisiana Louis C LaCour Jr New prleans Louisiana Attorney for Defendants Appellants Modern Muzzleloading Inc and EBSCO lndustries Inc BEFORE GAIDRY McDONALD AND HUGHES JJ McUONALD J This is an app of a judgment that awarded damages following an al accidenta shooting with a muzzle shotgun loading Phill Junkins the baseball coach at aintiff p Bowling Green old year 35 assistant principal was a and head High School in Franklinton Louisiana at the time oFhis injury On the evening of March 31 2004 Mr Junkins was loadin his shotgun a Knight Rifles TK2000 12 muzzleloader in preparation for a hunt gauge the next day The basic facts of the accident are not disputed Before the gun was loaded Mr Junkins fired a primer charge with no gunpowder loaded into a cotton patch inser into the barrel on a attached to the end of th gun jag s rainrod The int purpose of firing a primer is ta be sure tl the channel nded at between the primer az the breech or bottom of the barrel where the gunpowder is d placed is clear After f ring the primer Mr Junkins removed th ramrod and the attached patch from the barrel He then removed the spent primer measured the gunpowder poured the gunpowder into the barrel and used the ramrod to ascertain that the unpowder was properly seated at the bas of th barrel While he was doing this the gunpowder ignited propelling the ramrod from the gun bart into his hand causir him serious injury Mr Junkins and his wife Elissa Magee Junkins individually and on b half of their two minor children Jacob and Katelin Junkins filed suit against Modern Muzzleloading Inc a b d Knight Rifles Inc and EBSCO Industries Inc collectively referred to hereafter as Knight Rifles and other parties asserting that the shotgun was defective At the time of trial the plaintiffs had reached a settlement with all of the defendants except for Knight Rifl s The matter was tried before a jury The jury returned a verdict against Knight Rifles and in favor of Mr Junkins for 1in general damages and 000 500 I 2 I I 275 400 for P ast and future medical exP enses 275 to Mrs Junkins for 1oss 000 of consortium and also 35 to Jacob Junkins and 35 to Katelin Junkins 000 000 for loss of consortium The district court entered judgment in accordance with the s jury rdict v Knight Rifles filed notwithstanding the verdict JNOV and a motion remittitur for which new was trial jud ment denied Knight Rifles then f lthis appeal d Knight Rifles makes the following assi of error nments 1 The jury conclusion that the TK2000 shotgun was defective was s manifestly erroneous 2 The distarict court refusal to exclude evidence of Knight Rifles s warning language in a revised owner manual constitutes reversible error 3 The jury award of 1 in general dama was grossly s 000 500 es excessive and the award of 140 for uture medical expenses 000 had no evidentiary basis hence both awards were manifestly erroneous ASSIGNMENT OF ERROR NO 1 In this assignment of ez Knight Rifles asserts that forensic evidence proved that the shotgun could not have discharged in the manner the plaintiffs claimed Knight Rifles asserts that the essence of Mr Junkins case was that after Mr Junkins dischar a prim to clear the breech of the shotgun a small portion ed r of the cleaning patch still burn thus when he later poured gunpowder into the d barrel and sou to seat it in place with the jag the latent ember caused the ht gunpowder to ignite However Knight Rifles argues the credible forensic evidence at trial demonstrated that this simply could r have happened because ot 1 the gunpowder cannot ignite absent a heat source of nearly 00 degrees 2 too much time elapsed between firing tk primer and adding the gunpowder for any e residual latent spark to remain and 3 the gun could not have fired had Mr Junkins not put a new primer on the gun 3 An expert witness for Knight Ri James W Carlson had 60 years 7es experience with muz He had been on the national board of the National leloaders Rifle Association and he co the Muzzleloading Shotgun Handbook Mr authored Carlson testified that when a primer is fired the only thing that enters the barrel is hot gas and nothing remains of the primer afterward He had fired muzzleloaders I thousands of times and had never experienced or ard h of latent sparks Mr Carlson testified that even if some remnant of the patch remained it would only smolder at a temperature o 37S to 4S0 degrees because it is mad of cotton and thus it could not ignit the gunpowder used by Mr Junkins which had an ignition temperature of 800 degrees Mr Carlson determined that there must have been a sh fr primer in place something even Mr Junkins conc was contrary to saf ded practice and not a lingering ember in order to ignite the gunpowder Branch Meanley also testified as an ness expert wi for Knight Rifles Mr Meanley is an expert in muzzleloading firearms a representative for Knight Rifles and a competitive shooter Mr M worked to test the latent spark theory anley and testifi that it was not physically possible for th accident to happen the way d Mr Junkins claimed it happened Steve Howard testified as an expert for the plaintiFfs in muzzleloadin use function analysis and capabilities with regard to ntal accid discharges He testitied that muzzleloaders possess a dangerous characteristic namely that embers irrespective of their source of fuel can remain in the barrels of the uns lon enou for the user to place his or her hand over the barrel and can ignite tk h e powder in the gun Another witness for the plaintiffs Dr Steve Wilcox testified as an expert in human factors warnings and instructional analysis Dr Wilcox testified that Knight Rifles was unreasonable in failing to provide an ad warning of the quat s gun dangerous characteristic of hidden embers and that the manufacturer s 4 manual must contain a warning to cal the user attention to that danger and to s describe that danger which it did not do in its manual It is w settled that a court ofappeal may not set aside a finding of fact by a ll trial court or a jury in the absence of manifest error or unless it is clearly wrvng and where there is conflict in the testimony reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review even though the appellate court may feel that its own evaluations and inferences are as reasonable Rosell v ESCO 549 So 840 844 La 19 Arceneaux v 2d 9 Domingue 365 So 1330 1333 La Canter v Koehring Co 2 So 2d 1978 3 2d 716 724 La 1973 When tindings are based on determinations regarding the credibility of witnesses the manifest error wrong standard demands great deference to arly cl the trier ofi fact findings for only the fact ftnd s rcan be aware of the variations in demeanor and tone of voice that bear so heavily on the listener understanding and s belief in what is said Rosell 549 So at 44 2d The rule that questions of credibility are for the trier of fact applies to the evaluation of expert t stimony unless the stated reasons of the expert are patently unsound Lirette v State Farm Ins Co 563 So 850 53 La 1990 2d The jury reviewed all of the evidence presented at trial and found the plaintiffs witnesses credible ruling for the plainti Fs on the issue of liability After a thorou review of the record we cannot say that these findin are manifestly h s erroneous or clearly wron ASSIGNMENT OF ERROR NO 2 In this assignment of error Knight Rifles asserts that the evidence that its s owner manual was revised after Mr Junkins purchased his shotgun should have been excluded as a remedial measure 5 Knight Rif7es filed a motion ir limine to obtain an advartce ruling on the admission of the manual The trial court ruled that the manual was admissible for two reasons one since it was a manual related to other Knight muzzleloaders it was not a subsequent remedial measure and two it relat to Knight Rifles d ense de that any hidden e warning was unnecessary because hidden embers nber ignitions could not happen Generally all relevant evidence is admissible La C art 402 E Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to a determination of the action more or I probable than it would ss be without the evidence La C art 401 Wheth evidenc is relevant is within E r the discr ofth tarial j udge and his ruling will not be disturbed on appeal in the tion absence of a clear abuse of his discretion Hunter v State ex rel LSU Medical School 45 I 031 La App 1 st Cir 3 934 So 760 763 writ denied 06 p6 29 2d 0937 La 1 l 940 So 653 Boudreaux v Mid Cas Co pS 06 3 2d Continent 2453 p La App lst Cir 11 9S0 So 839 845 writ denied 0 06 3 2d 2775 La 1 2b 948 So 171 07 2d After a thorou review ofthe record we find no clear abuse of discretion in h the denial of the motion in limin in this case ASSIGNMENT OF ERROR N3 In this assignment of error Knight Rifl asserts that the jury award of s OQ0 500 1 to 1VIr Junkins for general damages was grossly excessive and that the award for future medical expenses had no evidentiary basis Thus it asserts that both awards ar manifestly erroneous THE GENERAL DAMAGES AWARD TO MR JUNKINS The discretion vested in the trier of fact is reat and ven vast such that an appellate court should rarely disturb award of an eneral damages Reasonable s persot frequently disagree about the measure of general damages in a particular 6 It is only when the award is in either direction beyond that which a case reasonable trier of fact could assess for the effects of the parCicular injury to the particular plaintiff that the appellate court should increase or reduce the award Youn v Maritime Overseas Corp 623 So 1257 1261 La 1993 cert 2d denied 508 U 910 113 S 2342 124 L252 1993 S Ct 2d Ed Dr Harold M Stokes an orthop surgeon who specializes in hand dic surgery d perform five separate surgeries upon Mr Junkins following the accident Dr Stokes described the injury as a gunshot wound to the right hand and wrist with disruption of the median nerve and flexor tendons loss of carpel bones and dorsal tendons and gunshot wound also of the upper right arm The first surgery performed at the hospital under general anesthesia consisted of debriding the arm wound by removing fragmental nonviable tissue and closing the lacerations of the upper arm Dr Stokes then explored and d the wound to brided the hand and wrist excised necrotic tissue and inserted a drain He loos closed ly the wound and stabilized the wrist with an external fixation device consisting of four pins placed into the bones above and below the area of injury and a rod fixing the pins and acting as a stabilizer Dr Stokes testified that the first surgery was done to simply clean and control the wounds and stabilize the hand before proceeding with the later procedures to fully repair the damage While the wounds healed Mr Junkins saw a physical therapist for wound care and passive movement I of his rs fing On June 10 2004 Dr Stokes performed a second surgery to remove the external fixation device and fuse the wrist using a local bone graft and plate and screw This surgery was also done in the hospital under general anesthesia On August 19 2004 Ur Stokes performed a third surgery at the hospital under neral anesthesia removing a tendon and a nerve from Mr Junkins right calf which was then grafted to the median nerve of his wrist The plantaris tendon 7 om fthe leg was used to restore flexion to his thumb and also some muscles from his t were removed rom the base of the har and inserted over to the thumb so and d that he could oppose his thumb ter Af the cast was removed Mr Junkins start d physical therapy On June 11 2009 Mr Junkins underwent a fourth surgery also done under general an at the hospital to repair a ruptured fl tendon and also to sthesia xor excise a cyst The cyst was not related to the injury E3y November 4 20p9 Mr Junkins had d pain and motion at the veloped thumb fusion site The fusion ofthe thumb appeared to have failed after Ther a fifth sur took place on November 12 2009 wherein Dr ery s Stok put two pins on either side of the fusion sit of the thumb with a wire to stabilize it Following the fifth surgery Mr Junkins experienced pain in the index and long ingers due to nerve crossover Dr Stokes testitied that th hypersensitivity of Mr Junkins right hand with ing ting and pain that felt like the hand was going to sleep and then waking up was nt perman due to all of the nerve work that had been done Dr Stokes further testified that Mr Junkins remained in some form of constant pain and would for the rest of his life He also testified that Mr Junkins had a sixty percent nine impairment for his upper right extremity and a forty percent total body two impairment tthe time of the accident Mr Junkins was 3S years old with a wife and two youn children and was working as a baseball coach and assistant principal Following the accident he was unable to continue his profession as a baseball coach underwent five surgeries and was left with permanent constant pain a nine sixty percent upper right extremity impairm and a forty percent total nt two body impairm Keeping in mind the great and even vast discretion vested in the nt trier of fact such that an appellate court should rar disturb an award of genearal ly 8 es dama after a thorough review o the record we tind that the award of 000 500 l in g damag while high is not higher than that which a neral s reasonable trier of fact could assess for the effects of this particu injury to this ar I P articular P laintiff such that the a PP ellate court should reduce the award THE MEll1CAL EXPENSES AWARD The proper standard for deteranining whether a plaintiff is entitled to future medical expenses is proof by a preponderance of the evidence the future medical xpense will be medically n Menard v Lafayette Ins Co 09 La cessary 1869 3 16 10 31 So 996 1006 3d The medical expenses award medical exper of ses medical expenses cream for the 000 13Q was 000 275 The evidence proved past Thus 145 was for awarded for future 000 uture medical expenses proved at trial were only for hand plaintiff which costs approximately 30 per month Mr Junkins was 41 years old at trial and at 30 per month the hand cream would cost 360 a year Calculated at 3f0 per year for the next 50 years this would equal 18 000 in future medical expenses without discountin th total to present value there being inadequate evidence upon which to base such a discount Thus the medical expenses award of 275 is reduced to the amount proven by a preponderance 000 of evidence at the trial 145 for past medical expenses plus 18 foi 000 000 futur medical expenses for a total of 163 Q00 Thus the judgment of the district court is amended reducing the medical expenses award to 163 and in all other respects the district court judgment xs 000 affarmed Costs are assessed against the appellants AMENDED AND AS AMENDED AFFIRMED 9

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