Wackenhut Corp., et al. v. Fortune
| Docket Number: | 2010-CA-00480-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 04-10-2012 Opinion Author: Roberts, J. Holding: Reversed and remanded |
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| Additional Case Information: |
Topic: Personal injury - Earnings capacity - Loss of future earnings - Expert testimony - Alcohol abuse - M.R.E. 401 - Future surgery - M.R.E. 702 - Substitution of expert witness - Redaction of documents - Contributory negligence instruction - Reasonable force instruction - M.R.A.P. 28(a)(6) - Prior convictions - M.R.E. 404(b) - Evidence of homeless status - Collateral sources Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Carlton, Maxwell and Fair, JJ. Concur in Part, Concur in Result 1: Russell, J. Procedural History: Jury Trial Nature of the Case: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE |
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| Trial Court: |
Date of Trial Judgment: 12-10-2009 Appealed from: Hinds County Circuit Court Judge: Winston Kidd Disposition: JURY VERDICT FOR PLAINTIFF Case Number: 251-08-0933CIV |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Wackenhut Corporation ( Incorrectly Identified as Wackenhut Security) and Rozivito Hoskins |
MATTHEW ANDERSON TAYLOR
DAVID LEE GLADDEN JR.
JAMIE LEIGH HEARD |
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| Appellee: | Ernie Fortune | JAMES ASHLEY OGDEN ROBERT FARLEY WILKINS | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Earnings capacity - Loss of future earnings - Expert testimony - Alcohol abuse - M.R.E. 401 - Future surgery - M.R.E. 702 - Substitution of expert witness - Redaction of documents - Contributory negligence instruction - Reasonable force instruction - M.R.A.P. 28(a)(6) - Prior convictions - M.R.E. 404(b) - Evidence of homeless status - Collateral sources |
| Summary of the Facts: | Ernie Fortune went into a McDonald’s restaurant in Jackson intending to use the self-serve drink machine to get a free refill of ice in a McDonald’s cup he had obtained hours earlier that day. Tracey Luckett, McDonald’s manager on duty at that time, told Fortune McDonald’s policy prohibited him from refilling a cup after he had left the restaurant. It is undisputed that Fortune became frustrated and left the restaurant without refilling his cup or purchasing anything. A short time later, Fortune went back inside the restaurant and tossed one dollar to Luckett. Fortune explained he did not want to buy anything for himself. Fortune told Luckett the dollar was for the next customer who wanted a cup of ice. My Joy, Inc., the owner of the McDonald’s franchise at issue, had entered into a contract for security services with Wackenhut Corporation. At that time, Rozivito Hoskins was the Wackenhut security officer on duty at McDonald’s. The record contains contrasting versions of events regarding what happened next. However, it is undisputed that Hoskins shoved Fortune outside, where Fortune fell to the ground. It is undisputed that Fortune broke the humerus bone in his right arm at some point during the altercation. Fortune was hospitalized. He required surgery that involved stabilizing his broken arm with an “intramedullary nail.” Fortune sued Wackenhut, Hoskins, My Joy, Inc., McDonald’s, and Luckett. The jury found Wackenhut and Hoskins 75% liable for Fortune’s injuries and awarded Fortune $600,000 for pain and suffering, $194,000 for lost past and future earnings, $106,000 for past and future medical expenses, and $100,000 for Fortune’s “physical impairment and/or functional limitations” for a total award of $1,000,000. Wackenhut and Hoskins appeal. |
| Summary of Opinion Analysis: | Issue 1: Earnings capacity Wackenhut argues that this case should be reversed and remanded for a new trial because Fortune’s expert witness, Dr. Glenda Glover, used the earnings-capacity approach to calculate Fortune’s loss of future earnings. Fortune concedes that the case should be remanded for a new trial pursuant to the Mississippi Supreme Court’s decision in Rebelwood Apartments RP, LP v. English, 48 So. 3d 483 (Miss. 2010), in which the Court held that the same expert, Dr. Glover, should not have been permitted to utilize the earnings-capacity approach when calculating a plaintiff’s loss of future earnings because Dr. Glover’s testimony was not based on sufficient facts or data. Accordingly, the case is reversed and remanded. Issue 2: Alcohol abuse Fortune filed a motion in limine to exclude “medical records that reference . . . Fortune’s past alcohol use or having alcohol in his system at the time of the incident.” Wackenhut argued that evidence of Fortune’s past alcohol abuse was relevant because Fortune sought lost wages and implicitly claimed he had a pre-existing wage earning capacity that was interrupted when he was injured at McDonald’s. The circuit court held evidence of Fortune’s past alcohol abuse was inadmissible because it was irrelevant. However, Wackenhut was allowed to submit evidence that Fortune’s blood alcohol level was .276 immediately before his surgery the night of the incident. Wackenhut now argues that the circuit court erred because Fortune’s history of alcohol abuse was relevant to his claim for past and future medical treatment and lost wages. The question is whether Fortune’s history of alcohol abuse tends to make a consequential fact more or less probable under M.R.E. 401. Wackenhut proffered Fortune’s medical records outside of the jury’s presence during Dr. Katz’s testimony. Dr. Katz conducted an independent medical evaluation of Fortune. Dr. Katz noted Fortune had sought medical treatment from multiple hospitals in Jackson for intoxication or symptoms associated with alcohol abuse at least forty times between July 1999 and January 2009. On March 16, 2002, Fortune underwent a CT scan, which reported Fortune had “cerebral and cerebellar atrophy greater than expected for [his] stated age.” There are numerous references to Fortune suffering from “chronic cirrhosis of the liver.” Evidence of Fortune’s history of alcohol abuse tends to make it more probable that he has a diminished life expectancy when compared to someone who does not have a similar history of alcohol abuse. Therefore, evidence of Fortune’s alcohol abuse is particularly relevant when calculating Fortune’s earnings for the remainder of his work life. Undoubtedly, evidence of Fortune’s extensive history of chronic alcohol abuse is prejudicial to him. However, given the precise circumstances of this case, Wackenhut had a substantial right to rebut Fortune’s claim for lost future earnings for the remainder of Fortune’s life expectancy. Therefore, the circuit court abused its discretion when it prohibited evidence regarding Fortune’s alcohol abuse. Issue 3: Future surgery Wackenhut argues the circuit court erred when it allowed Fortune to introduce evidence he should recover damages for future surgery he may not actually have. According to Wackenhut, Dr. Katz’s testimony was based on speculation that Fortune would be a candidate for future surgery. To be recoverable, damages must be shown with reasonable certainty and not left to speculation and conjecture. M.R.E. 702 states that if expert testimony will assist the trier of fact to understand the evidence and the witness is qualified, the expert testimony will be admitted. But if an expert's opinion is not based on a reasonable degree of medical certainty, or the opinion is articulated in a way that does not make the opinion probable, the jury cannot use that information to make a decision. The issue in this case is not whether Fortune would benefit from the surgery, but whether he would be a candidate for the surgery. During the proffer, Dr. Katz testified that Fortune would have to meet certain conditions before he could be considered a candidate for surgery. Dr. Katz’s opinion was clear: If Fortune remained sober for a long enough period and had an acceptable liver-function test, he would be a candidate for further surgery. Fortune’s attorney later represented that Fortune had been sober for approximately one year. However, defense counsel noted that there was no evidence to support Fortune’s attorney’s claim. The circuit court erred when it allowed Dr. Katz to testify that Fortune should receive $25,000 for a future surgery when there is no evidence Fortune would meet the conditions Dr. Katz mentioned. Statements by attorneys are not evidence. Issue 4: Substitution of expert witness At trial, Fortune’s expert economist, Dr. Glover, was unavailable due to an illness. Over Wackenhut’s objection, the circuit court allowed Fortune to substitute James Henley for Dr. Glover. Henley adopted Dr. Glover’s testimony and her expert opinion regarding Fortune’s future lost wages. Because this issue is unlikely to arise upon remand, it will not be addressed. Issue 5: Redaction of documents Wackenhut argues the circuit court erred when it removed references to Fortune’s treatment for alcoholism from medical records that had been entered into evidence. This issue is also unlikely to arise again on remand. Issue 6: Contributory negligence instruction Wackenhut argues that the circuit court erred when it refused its proffered jury instruction on contributory negligence. A trial judge may refuse a proposed jury instruction that is an incorrect statement of the law, repeats a theory covered in other instructions, or has no proper foundation in the evidence before the court. Fortune concedes that the circuit court erred. There was evidence that Fortune went into McDonald’s to refill a cup with ice. Fortune testified that he had purchased the cup hours earlier. Luckett testified that Fortune did not attempt to make a new purchase. Luckett testified that she informed Fortune of McDonald’s policy, and Fortune became combative. Fortune left the restaurant and returned shortly thereafter. Although there was some dispute regarding the nature of Fortune’s behavior, Luckett testified that Fortune acted in a confrontational manner when he attempted to give her one dollar. Hoskins testified that he had asked Fortune to leave. Hoskins further testified he had approached Fortune while asking him to leave, and Fortune had brandished a weapon Hoskins described as a knife. A detective of the Jackson Police Department testified that according to a police report, a knife was recovered from McDonald’s. Thus, there was evidence to support the proffered instruction on contributory negligence. Issue 7: Reasonable force instruction Wackenhut argues the circuit court erred when it refused its proffered jury instruction which, in part, purports to define “reasonable force.” Although Wackenhut’s argument may have merit, it failed to support its argument with any authority so it is barred under M.R.A.P. 28(a)(6). Issue 8: Prior convictions The circuit court granted Fortune’s motion in limine and prohibited the introduction of any evidence of Fortune’s prior convictions. Wackenhut argues the circuit court erred, because Fortune’s criminal record is relevant to his employability since Fortune sought damages for future lost wages and loss of wage-earning capacity. This is not an M.R.E. 404(b) question. Wackenhut did not seek to introduce evidence of Fortune’s criminal history for the purpose of proving Fortune’s character. Likewise, Wackenhut did not seek to prove that Fortune acted in conformity with his character. Wackenhut sought to prove that Fortune had limited employment opportunities because of his criminal history. Wackenhut made no proffer indicating that Fortune’s criminal record had or had not adversely impacted his ability to find work. Due to the lack of a proffer on the subject, there simply is not sufficient information in the record for a ruling on this issue. Issue 9: Evidence of homeless status Wackenhut argues the circuit court erred when it granted Fortune’s motion in limine to exclude any evidence of his being “homeless.” However, Wackenhut failed to cite authority to support its position. Thus, it is barred. Issue 10: Collateral sources The circuit court granted Fortune’s motion in limine to exclude any evidence of collateral sources of medical treatment. According to Wackenhut, Fortune opened the door to cross-examination on his ability to pay for medical treatment when he testified that he did “not have the money to go get the right side of [his] body x-rayed.” Wackenhut failed to cite authority in support of its argument on appeal. Thus, it is barred. |
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