Tort-reform advocates are expressing dismay at the Louisiana Supreme Court’s decision last month to reinstate most of an eight-figure jury award in a personal-injury case, reversing an earlier opinion that slashed the damages amount by more than half.
After rehearing the case of Barber Brothers Contracting Co. LLC v. Capitol City Produce Co., the high court on Dec. 19 reversed an opinion issued in June. The earlier ruling found a jury had abused its discretion by awarding commercial driver Frank Cushenberry $10.75 million in general damages as a result of injuries sustained in a vehicle accident.
In the June decision, the Supreme Court found that the highest amount that Cushenberry could receive under the circumstances was $5 million. The court altered its opinion in last month’s decision, however, citing not just jury awards in similar cases but also reviewing the “unique facts of this case.”
Physicians testified at trial that the plaintiff sustained injuries including a fractured eye socket and left cheek bone, a mandible fracture, soft tissue damage, and spine and shoulder injuries. Cushenberry also developed a respiratory infection and was in critical condition for days, according to the testimony.
As in its first decision, the high court concluded Cushenberry was 20% at fault and Barber Brothers 80% responsible for the accident. The jury erred in assigning all the fault to Barber Brothers, the Supreme Court said, and this finding didn’t change after the rehearing.
Tort-reform advocates, however, view damages awards of more than $10 million against businesses as “nuclear verdicts” which harm the state economy and place more monetary burdens on consumers.
“Neither the facts nor evidence in the case changed between the initial hearing in June and the December rehearing, and no real explanation was given for why the case warranted rehearing,” Lana Venable, executive director of Louisiana Lawsuit Abuse Watch, said in an email to the Louisiana Record. “These types of damage awards are subjective and often far surpass reasonable compensation for injuries, causing irreparable damage to our economy and passing down costs to consumers.”
Venable stressed that the civil justice system has a duty to fairly compensate victims, but it should not “provide winning tickets for the ‘lawsuit lottery.’”
In his dissent, Chief Justice John L. Weimer said the high court had assessed the damages issues correctly during its first consideration of the case.
“I acknowledge the detrimental effect these injuries have had on Mr. Cushenberry, a highly active and involved family man,” Weimer said in his dissent. “Nonetheless, I believe that the majority of this court in Barber I correctly found that the jury abused its discretion in setting the general damages at $10,750,000, an amount that is so high in proportion to the injuries that it shocks the conscience.”
In the December decision, the court also increased consortium damages to Robin Cushenberry, Frank Cushenberry’s wife, to $1 million and allotted $500,000 to each of their children, Noah and Khloe, though all the awards are subject to the 20% apportionment of fault to Frank Cushenberry.
The Adams and Reese LLP law firm in New Orleans criticized the court’s reversal, calling the decision a “gut-punch” to a state in dire need of legal reforms and lower vehicle insurance premiums.
“Removing objective fairness, the clarity of prior precedence and reasonable controls on excessive judgments erodes the confidence of the business community – which is the unfortunate result of the Barber Brothers decision,” Adams and Reese said in a blog post.