Duncan v. Kansas City Southern Railway

JOHNSON, J.

This case arises out of a collision between a locomotive and a church van at a railroad crossing in Beauregard Parish. There were three passengers, all sisters, riding in the church van. As a result of the collision, one sister was killed, a second was rendered a quadriplegic, and the third suffered less serious injuries. Plaintiffs, parents of the three passengers, filed suit to recover damages. A jury found the driver of the van and the railroad liable for the accident, apportioning fault between the two. The decision was affirmed by the court of appeal. We granted certiorari to review the correctness of this decision.

The plaintiffs were awarded damages totaling $ 27,876,813.31. Included in the award were future medical expenses in the amount of $ 17,000,000.00 and general damages for physical pain and suffering, mental anguish, and loss of enjoyment of life in the amount of 8,000,000.00 to Rachel Duncan.

An appellate court may not disturb the conclusions reached by a jury regarding factual matters in the absence of "manifest error" or unless a particular finding of fact was "clearly wrong." Thus, the inquiry is whether the factual findings are reasonable, not whether the trier of fact was right or wrong. If, in light of the record in its entirety, the trial court's findings are reasonable, then the appellate court may not reverse, even if convinced it would have weighed the evidence differently sitting as the trier of fact.

In order to determine whether liability exists under the facts of a particular case, our Court has adopted a duty-risk analysis. Under this analysis, plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of protection afforded by the duty breached.

EXCESSIVE DAMAGES

Finally, we turn our attention to the last assignment of error raised by KCS, whether the jury's award of damages was so excessive as to be set aside. According to KCS, the jury was prejudiced in its award by the plaintiffs' bringing Rachel Duncan in and out of the courtroom during the trial. Sympathy for this quadriplegic child resulted in the general damage award of $ 8 million dollars and the $ 17 million dollar award for future medical care. KCS contends these awards are unprecedented, grossly excessive, and not supported by the evidence. Further, KCS contends the awards to the parents for the wrongful death of Amanda are excessive, and the awards to Myranda for mental anguish and negligent infliction of emotional distress are also excessive.

General Damages

General damages are those which may not be fixed with pecuniary exactitude; instead, they "involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms." Vast discretion is accorded the trier of fact in fixing general damage awards. This vast discretion is such that an appellate court should rarely disturb an award of general damages. Thus, the role of the appellate court in reviewing general damage awards is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact.

The initial inquiry, in reviewing an award of general damages, is whether the trier of fact abused its discretion in assessing the amount of damages. Only after a determination that the trier of fact has abused its "much discretion" is a resort to prior awards appropriate and then only for the purpose of determining the highest or lowest point which is reasonably within that discretion.

Rachel Duncan

In the present case, the trial court awarded $ 8 million in general damages to Rachel Duncan for her physical pain and suffering, mental anguish, and loss of enjoyment of life. According to KCS, this award far exceeds the highest reasonable awards in cases involving similar injuries. However, our initial determination is not guided by awards for similar injuries; rather, our initial inquiry is whether the instant award is beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances. KCS contends the jury's award was based on sympathy for Rachel, who was brought in and out of the courtroom during the trial in a special, self-propelled wheelchair. While the sight of Rachel in her self-propelled wheelchair may have elicited some sympathetic feelings from the jury, the evidence presented more than amply demonstrates the effects of this accident on Rachel Duncan.

Prior to the accident, Rachel was an active eleven-year-old girl, she enjoyed outdoor activities, she was excelling academically in her sixth-grade class, she had many friends, and she was planning to attend college someday. As a result of the accident, Rachel's whole life has changed. The injuries she sustained when she was thrown from the church van have left her a quadriplegic who is totally dependent on others for all her care needs. Rachel's medical diagnosis and impairments include C5 ASIA A tetraplegia, traumatic brain injury, scoliosis, a tracheostomy, neurogenic bladder, neurogenic bowel, muscle spasms, contractures of upper and lower extremities, pulmonary insufficiency, a non-functioning left lung, left-sided hearing loss, severe headaches, anorexia, severe malnutrition, and depression. She also suffers from recurrent pulmonary infections, recurrent bladder infections, and is in constant danger of developing decubitus ulcers and autonomic dysreflexia.

In addition to having to cope with the injuries she sustained in the accident, Rachel is also coping with the fact that her older sister was killed in the accident and her younger sister was injured in the accident. She is no longer able to attend school with her friends, she spends the majority of her day in either her bed or her wheelchair, she can no longer go on the family fishing and camping trips she enjoyed before the accident, and she is aware of the effect her injuries have had on her family. While Rachel still plans on attending college, she will not be able to go off to college like other college freshmen. Even if she decides to move out of her parents home when she becomes an adult, she will require a specially designed home and 24-hour care. Even when all these factors are considered, we find that the general damage award of $ 8,000,000 is excessive and the trial court abused its discretion in fixing the general damage award to Rachel Duncan. A review of cases involving similar injuries reveals that the highest amount that could reasonably be awarded under the facts of this case is $ 6,000,000. Therefore, we reduce the general damage award from $ 8,000,000 to $ 6,000,000.

Lastly, KCS contends that the $ 17 million award for Rachel's future medical care is clearly excessive. According to KCS, if this award is invested conservatively so as to obtain only a five percent return, it would still produce an annual interest income of $ 850,000. Future medical expenses must be established with some degree of certainty. Awards will not be made in the absence of medical testimony that they are indicated and setting out their probable cost.

In the matter at hand, the jury was presented with medical testimony by plaintiffs', as well as, defendant's experts. Robert Voogt, Ph.D., plaintiffs' expert in the care of individuals with catastrophic injuries, testified regarding the life care plan prepared by Robert Voogt & Associates. The Voogt Plan provides for medical evaluations and treatment by specialist in the following fields: psychiatry, neurology, neurosurgery, pulmonology, pediatrics (until age 18), internal medicine, orthopedic surgery, and urology. The plan also recommends therapeutic evaluations by an occupational therapist, a physical therapist, and a speech therapist. Further, the plan provides for a treatment program with individual counseling, family counseling, occupational therapy, physical therapy, speech therapy, weekly review by a registered nurse, and 24-hour attendant care by either a licensed practical nurse or a RN. The LPN or RN would be provided by a home health agency, and their activities would be supervised by a case manager. Dr. Voogt based his plan on Rachel having the same life expectancy as persons her age without spinal cord injuries, that is 81 years.

The jury also heard testimony from Terry Arnold, defendant's expert in rehabilitation nursing and life care planning, regarding the life care plan prepared by her agency, Life Care Consultants, Inc. Ms. Arnold's plan recommends evaluations by physicians specializing in physical medicine and rehabilitation, pulmonology, urology, internal medicine, orthopedics, and psychiatry. The Life Plan further recommends educational counseling, physical therapy, and occupational therapy, as well as, 16 to 24 hour attendant care by a home health aide. Both the Voogt Plan and the Life Plan provide for medical supplies and other necessary equipment, a specialized wheelchair, van transportation, home modifications and maintenance.

Based on the Voogt Plan, the plaintiffs' expert economist, Bernard Pettingill, Ph.D., calculated the present values for future medical expenses with LPN care at $ 22.00 per hour, using a 6% discount rate, offset by 6% inflation, and based on a life expectancy of 57 years to be $ 10,528,722. According to Dr. Pettingill, because of increases in medical costs and inflation, these amounts would be completely exhausted at the end of Rachel's life expectancy.

Michael Kurth, Ph.D., defendant's economist, calculated the present value for future medical expenses based on the Life Plan using a 2.5% discount rate, and based on a 57-year life expectancy to be $ 2,165,855.00. Dr. Kurth allocated $ 140,160.00 for attendant care in 1998 and $ 36,000.00 annually for 1999 and beyond. In addition, both economists performed their calculations based on an 81-year life expectancy for Rachel. Dr. Pettingill explained that calculating costs for an 81-year life expectancy simply involved multiplying the cost for a 57-year life expectancy by the additional percentage of years. In other words, if the life expectancy increases from 57 years to 81 years, that equates to a 58% increase. Thus, the cost for future medical expenses with 24-hour LPN care at $ 22.00 per hour would increase from $ 10,528,722.00 to $ 16,635,380.00. According to Dr. Kurth, the present value for future medical expenses to age 81 would be $ 2,606,166.00.

Rachel Duncan has been diagnosed as a C5 tetraplegic and her age at the time of trial was 14.6 years. Looking at the table, a 15-year old in the C5 neurologic category has a life expectancy of 42.6 years. The record does include accurate evidence with reference to Rachel's life expectancy. Dr. Zidek's predicted 57-year life expectancy for Rachel is more realistic than the 81-year life expectancy predicted by Dr. Voogt. Furthermore, the 57-year life expectancy is also the more scientifically accurate prediction. Considering that the preponderance of the evidence indicates that Rachel's life expectancy is more accurately predicted at 57 years, we are of the opinion that the award of $ 17 million for future medical expenses was manifestly erroneous. While there is expert testimony supporting this award, the lower courts were clearly wrong in accepting testimony based on the inaccurate life expectancy of 81-years.

Having determined the 57-year life expectancy to be more realistic, we turn to the expert testimony on future medical expenses. The jury heard testimony from two experts who prepared life care plans for Rachel. As previously mentioned, the plans recommend the same care for Rachel, with the only exception being the type of attendant care recommended. Where the testimony of expert witnesses differ, it is the responsibility of the trier of fact to determine which evidence is the most credible. Thus, it seems the trier of fact found the evidence presented in the Voogt Plan was the most credible. Based on the Voogt Plan, Dr. Pettingill calculated the present values for future medical expenses with LPN care at $ 22.00 per hour and based on a life expectancy of 57 years to be $ 10,528,722. Accordingly, we reduce the award of future medical expenses to $ 10,528,722.

CONCLUSION

For the aforementioned reasons, the decision of the court of appeal insofar as it finds KCS at fault and in the awarding of general damages is affirmed. We reverse the percentages of fault of KCS and Mitchell, to 33.3% and 66.67%, respectively, and the award of future medical expenses for Rachel Duncan is reduced to $ 10,528,722. We also reduce the award of general damages to Rachel Duncan to $ 6,000,000. The case is remanded to the trial court to confect appropriate monetary judgments based upon the fault percentages.