In its 2023 decision, Pete v. Boland Marine and Manufacturing Company, LLC, 2023-0170 (La. 10/20/23), 379 So. 2d 636, the Louisiana Supreme Court abrogated decades of decisions, including the 1976 decision in Coco v. Winston, 341 So. 2d 332, 335-336 (La. 12/13/1976), that had precluded appellate courts from using past awards for similar injuries unless the court determined first that the jury had abused its vast discretion in awarding general damages. Under those prior holdings, an appellate court could consider past awards only after determining that the award was an abuse of discretion, and “then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court.” Coco, 341 So. 2d at 335.
The Pete decision, written by Justice McCallum, reasoned that, in the absence of a study of prior awards, the “abuse of discretion” standard in current use resulted in an analysis and review that was “overly subjective and, consequently, meaningless.” Pete, 2023-0170, p. 8, 379 So. 3d at 643. In an effort to inject a more “objective, neutral, or equitable” measure of a factfinder’s abuse of discretion, and to provide a “reasonable criterion by which courts can evaluate” general damage awards, Pete held that “appellate courts must look at past general damage awards for similar injuries” to determine if the trier of fact has abused its much discretion. consider relevant prior general damage awards as guidance in determining whether a trier of fact’s award is an abuse of discretion.” 2023-0170, ps. 8-9, 379 So. 3d at 643 (emphasis added).
Less than a year later, on June 28, 2024, in a 5 to 2 decision, also written by Justice McCallum, the Court issued its original decision in Barber Brothers Contracting Company LLC v. Capitol City, 2023-00788 (La. 06/28/24), 388 So. 3d 331(Barber I).
Applying the new standard of appellate review announced in Pete, and based “on a review of the record, coupled with a study of prior awards in truly similar cases,” Justice McCallum concluded that the jury had abused its discretion (1) in awarding Plaintiff Frank Cushenberry $10,750,000 for injuries he sustained in a rear-end collision, and (2) in awarding his wife $2.5 million for loss of consortium and awarding his two children $1 million in similar loss of consortium damages. Barber I, 2023-00788, p. 26, 388 So. 3d at 353 (emphasis added).
Justice McCallum reduced Mr. Cushenberry’s general damages to $5 million and also reduced his wife’s and children’s loss of consortium awards, respectively to $400,000 and $100,000 each. Chief Justice Weimer and Associate Justices Crichton, Genovese, and Crain all joined in the majority decision. Justice Hughes, with Justice Griffin joining, dissented on the grounds that, in his view, “none of the six cases cited by the majority . . . are truly similar to the instant tort victim’s particular facts and circumstances, nor does the majority mention the word ‘inflation.’” 2023-00788, p. 3, 388 So. 3d at 362 (Hughes, dissenting).
On August 2, 2024, the Court granted Plaintiffs’ application for rehearing. Three days later, on August 5, 2024, Justice Genovese resigned from the Supreme Court to assume the duties of President of Northwestern State University, on appointment by Gov. Landry. Retired Justice Jeanette Knoll was appointed as Justice Pro Tempore for the remainder of Justice Genovese’s term.
On December 19, 2024, on a 4 to 3 vote, the Court issued its rehearing decision, written by Justice Crichton, who had joined in the Court’s original majority opinion. Over the dissenting opinions of Chief Justice Weimer and Associate Justices Crain and McCallum, the new majority reversed its original decision, and reinstated the jury’s original award, finding that the jury did not abuse its discretion in awarding Mr. Cushenberry $10,750,000 for his injuries. Barber II, 2023-00788 (La. 12/19/24), -- So. 3d --. Curiously, the new majority affirmed the jury’s abuse of discretion in its loss of consortium awards but amended the awards upwards to $1 million to Mrs. Cushenberry and to $500,000 to each child.
The question of interest is why the change? What did the original decision get wrong?
Justice Crichton asserted that the Court’s original decision in Barber I had “overlooked the particularities of Mr. Cushenberry and how he and his family have been impacted by his injuries.” Barber II, 2023-00788, p. 3 (La. 12/19/24). As justification for reinstating the jury’s original award to Mr. Cushenberry and amending the consortium awards to $1 million to his wife and $500,000 each to his children, Justice Crichton offered a “revised abuse of discretion analysis under Pete.”
His analysis began with the general recognition that a factfinder abuses its discretion when the amount of the award is “so high or so low in proportion to the injury” that it “shocks the conscience.” Barber II, 2023-00788, p. 5. He agreed that Pete’s requirement that past awards be included in evaluating an award for abuse of discretion provides a “reasonable criterion” in determining what “shocks the conscience.”
But the recapitulation of Pete’s two-part analysis for reviewing a damage award appears to soften or de-emphasize the use of past awards as originally articulated by Justice McCallum. Where Pete expressed the study of past cases in obligatory terms that “must” be considered when reviewing the award for abuse of discretion, Justice Crichton’s phrasing merely “includes” their consideration, and then only after examining the “particular facts and circumstances” of the case:
1) A court determines “whether abuse of discretion occurred by examining the particular facts and circumstances of the case under review while including a ‘consideration of prior awards in similar cases’”; and
2) if abuse of discretion is found, the court is to then also consider those prior awards to determine the high and low points which are reasonably within that discretion.
Justice McCallum’s rationale for mandating, not merely including, the study of past awards, was because “this principle provides a reasonable criterion by which courts can evaluate awards for general damages, whether for excessiveness or insufficiency.” Otherwise, “appellate courts have no objective, neutral, or equitable way to measure whether a general damage award is, in fact, an abuse of discretion.” Pete, 2023-00170, p. 8, 379 So. 3d at 643. Justice McCallum further admonished that the study of past awards is a starting point, but not the only factor to be considered in evaluating whether a general damage award is an abuse of discretion.
Instead of starting with a review of past awards for similar injuries, Justice Crichton’s re-analysis began by “reexamining the thorough record in this case.” On the basis of that re-analysis, he concluded, largely agreeing with Justice Hughes’ original dissent, that the jury’s award to Mr. Cushenberry was not an abuse of discretion after all: “On rehearing, we find in Barber I, this Court did not assign appropriate weight to the effects of “the particular injury to the particular plaintiff under the particular circumstances.” 2023-00788, p. 17.
It is important to note that Chief Justice Weimer’s dissent wholly rejected the Court’s rehearing decision. He concluded that the jury’s award was “the result of passion or prejudice” and did not bear a “reasonable relationship to the elements of the proved damages.” 2023-00788, p. 1, (Weimer, CJ, dissenting). In his opinion, the jury’s award was “so high in proportion to Mr. Cushenberry’s injuries that it shocks the conscience.” Id. Needless to say, he also disagreed with amending the loss of consortium claims.
Importantly, with reference to well-known “quantum studies” used by both bench and bar “as an aid in the evaluation of a case’s worth,” Justice Weimer sought to clarify what he perceived to be a misunderstanding of Pete’s use of prior awards “in truly similar cases.” He noted accurately that attorneys in private practice have for decades made use of past awards “in estimating the value of a case” and that courts too have profitably used past awards in determining what awards truly “shock the conscience.” Id., p. 5 (Weimer, CJ, dissenting).
Ironically, Justice Weimer agreed with Justice Hughes that the six cases discussed in the Justice McCallum’s original decision in Barber I did not involve injuries that were “truly similar” to those of Mr. Cushenberry, but he reached the exact opposite conclusion, as had Justice McCallum in his original decision: In no case could Justice Weimer find similar injuries that remotely supported the jury’s damage award “in this case.” For those reasons, Justice Wiemer concluded that “the opinion in Pete is not remarkable nor is the original majority opinion in this case in its application of Pete.” Id., p. 6.
Justice Crain was of the view that Barber I and Pete were both correctly decided and found it unnecessary for the Court’s rehearing opinion to clarify either decision.
To the undersigned, the Supreme Court’s rehearing decision is troubling, and not because it is difficult to avoid the conclusion that the change in the Court’s composition was a determinative factor in the Court’s final disposition of the case. That is a risk with every election cycle and every retirement. What is troubling is the profound disagreement among the justices on how to apply past awards in “truly similar” cases in the appellate review of a factfinder’s abuse of discretion, as Pete apparently demands, but which the majority of the Justices on rehearing found were not similar enough.
As no two cases are identical, the danger remains that the particularity of the injuries in a particular case can swallow whole the reasonable criterion which Pete mandated in the appellate review of general damages for the express purpose of avoiding an overly subjective and, consequently meaningless, review. The trouble is that the Court’s rehearing decision can be viewed, and perhaps misused or misunderstood, to resurrect that danger.
Original source can be found here.