Echeverry v. Jazz Casino

Case: 20-30038 Document: 00515746328 Page: 1 Date Filed: 02/17/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 17, 2021
No. 20-30038
Lyle W. Cayce
Clerk
Carla Echeverry,
Plaintiff—Appellee,
versus
Jazz Casino Company, L.L.C., doing business as Harrah’s New
Orleans Casino,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:17-CV-6494
ON PETITION FOR REHEARING and REHEARING EN BANC
Before Jolly, Southwick, and Wilson, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
The prior opinion is withdrawn.
Carla Echeverry was injured when a manlift struck her outside
Harrah’s Casino in New Orleans. A jury found Jazz Casino Company
negligent, assigning it 49% of the fault. Among the jury awards to Echeverry
was $1,000,000 for future pain and suffering. The Casino appeals, seeking
review of the district court’s denials of the Casino’s motion for judgment as
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No. 20-30038
a matter of law, motion for a new trial, and motion for remittitur or a new trial
on damages. We hold that the evidence was sufficient to support the finding
of negligence on each of the three theories presented to jurors. We also hold
that none of the objected-to evidence was erroneously admitted at trial.
Conversely, we hold that the jury’s $1,000,000 award for future pain,
suffering, mental anguish, disability, scarring, and disfigurement was
excessive. We therefore AFFIRM the district court’s denial of the Casino’s
motion for judgment as a matter of law and motion for a new trial, VACATE
the $1,000,000 award for future pain and suffering, and REMAND for
further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Jazz Casino Company, doing business as Harrah’s New Orleans
Casino, hired Alabama Wildlife Removal (“AWR”) as an independent
contractor in January 2017 to remove birds from palm trees near the Casino.
On February 16, 2017, during the second week of the project, Echeverry
stood near the worksite in front of the Casino as she waited to cross an
adjacent street. AWR was using a manlift to reach the treetops. As the
manlift was being moved from one group of trees to another, it struck
Echeverry, running her over and causing a comminuted fracture in her lower
right leg and ankle. The AWR employee serving as the flagman had not
alerted Echeverry to the movement of the manlift as he passed her.
Echeverry filed a negligence lawsuit in state court against AWR, its
owner Phillip Padgett, manlift operator Richard Tyler, and the Casino. The
Casino removed to federal court. There, a jury trial was held from August 5–
8, 2019. Echeverry presented three theories of negligence to the jury:
negligence in hiring, in operational control, and in authorization of unsafe
work practices.
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The jury found the Casino negligent and assigned it 49% of the fault.
Remaining fault was assigned to AWR (50%) and Echeverry herself (1%). The
jury awarded damages for (1) past pain, suffering, and mental anguish;
(2) past, present, and future loss of enjoyment of life; (3) past medical
expenses; (4) past lost wages; (5) loss of college tuition; and, relevant to this
appeal, (5) $1,000,000 for future pain, suffering, mental anguish, disability,
scarring, and disfigurement.
Only the Casino appeals. It seeks review of the district court’s denials
of motions for judgment as a matter of law, for a new trial, and for remittitur
or a new trial on damages.
DISCUSSION
On appeal, the Casino raises three issues. First, it argues that the
evidence is insufficient to support one or more of Echeverry’s theories of
negligence and it is therefore entitled to a new trial or judgment as a matter
of law. Second, it argues that four items of evidence — the Better Business
Bureau (“BBB”) rating, the certificate of insurance, the Casino’s internal
policies, and the construction-site photographs — were erroneously and
harmfully admitted into evidence. Finally, it argues that the $1,000,000
award for future pain and suffering violates this court’s maximum-recovery
rule and entitles the Casino to remittitur or a new trial on damages.
We first discuss the sufficiency of the evidence.
I. Sufficiency of the evidence
We review the denial of a motion for judgment as a matter of law de
novo, considering the facts in the light that most favors the jury verdict.
Retractable Techs., Inc. v. Becton Dickinson & Co., 842 F.3d 883, 891 (5th Cir.
2016). We cannot reverse a denial of a motion for judgment as a matter of
law unless the “jury’s factual findings are not supported by substantial
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evidence or [] the legal conclusions implied from the jury’s verdict cannot in
law be supported by those findings.” American Home Assurance Co. v. United
Space All., LLC, 378 F.3d 482, 486–87 (5th Cir. 2004). “Substantial
evidence is that relevant evidence — more than a scintilla but less than a
preponderance — that would cause a reasonable person to accept the fact
finding.” Coastal Prod. Servs. Inc. v. Hudson, 555 F.3d 426, 430 (5th Cir.
2009) (quoting Dir., OWCP v. Ingalls Shipbuilding, Inc., 125 F.3d 303, 305
(5th Cir. 1997)).
Echeverry presented three theories of negligence to the jury. When,
as here, it is unclear from the verdict which theory of negligence persuaded
the jury, a new trial is necessary if the evidence is insufficient on at least one
theory but not on all. Muth v. Ford Motor Co., 461 F.3d 557, 564 (5th Cir.
2006). This court employs a harmless-error “gloss,” meaning that if we are
“totally satisfied” or “reasonably certain” based on the focus of the evidence
at trial that the jury’s verdict was not based on the theory with insufficient
evidence, a new trial is unnecessary. Id. at 564–65. If the evidence is
insufficient as to each theory, then the defendant is entitled to judgment
notwithstanding the verdict. King v. Ford Motor Co., 597 F.2d 436, 439 (5th
Cir. 1979).
Under Louisiana law, a principal is generally not liable for the acts of
its independent contractor. Graham v. Amoco Oil Co., 21 F.3d 643, 645 (5th
Cir. 1994). A principal may, however, be liable if it was independently
negligent in its own actions, id., or if it negligently hired the independent
contractor, Hemphill v. State Farm Insurance Co., 472 So. 2d 320, 324 (La. Ct.
App. 1985). Moreover, exceptions to a principal’s shield from liability exist
if “the principal retains operational control over the contractor’s acts or
expressly or impliedly authorizes those acts.” Coulter v. Texaco, Inc., 117 F.3d
909, 912 (5th Cir. 1997).
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Echeverry presented evidence of the Casino’s negligence under
theories of negligent hiring, operational control, and authorization of unsafe
work practices. We analyze each theory.
A. Negligent hiring
Echeverry presented evidence at trial that the Casino was negligent
for hiring an irresponsible independent contractor. As to negligent hiring,
the jury was instructed:
The hiring party breaches its duty if it knew or should have
known that the independent contractor was incompetent at the
time of the hiring; meaning that the hiring party knew or should
have known that the contractor could not perform the job safely
or competently.
The district court instructed the jury on a “knew or should have
known” standard. The Casino had objected to that standard in its motion for
directed verdict, arguing that Louisiana law requires actual knowledge to
support a negligent-hiring claim. A panel of this court once stated that
Louisiana law on this point was ambiguous. See Dragna v. KLLM Transp.
Servs., L.L.C., 638 F. App’x 314, 319 (5th Cir. 2016). We did not resolve the
ambiguity because the plaintiffs had not raised a genuine dispute of material
fact under either standard. Id. The issue is properly presented today.
When we must “make an Erie guess, it is not our role to create or
modify state law, rather only to predict it.” Lawrence v. Va. Ins. Reciprocal,
979 F.2d 1053, 1055 (5th Cir. 1992). There is no Louisiana Supreme Court
decision on whether actual or constructive knowledge is required to support
a claim for negligently hiring an independent contractor. Thus, we review
the relevant courts of appeal decisions to determine whether they provide a
reliable basis on which to predict state law.
Two decisions by intermediate appellate courts are inconclusive but
provide some support that constructive knowledge is sufficient. The
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appellate court in each identified the plaintiffs’ argument as being that the
principal “knew or should have known” at the time of hiring of the
subcontractor’s inadequacies, but there is no suggestion that the defendant
argued for an actual-knowledge standard. See Hemphill, 472 So. 2d at 324;
Certified Cleaning & Restoration, Inc. v. Lafayette Ins. Co., 67 So. 3d 1277, 1282
(La. Ct. App. 2011).
The Casino finds support for an actual-knowledge requirement in
Guillory v. Conoco, Inc., Continental Oil Co., 521 So. 2d 1220, 1224–25 (La.
Ct. App. 1988). There, the court affirmed the district court’s decision not to
instruct the jury on negligent hiring. Id. at 1225. Conoco had hired Daniel
Construction Company as an independent contractor to build a refinery unit,
and Daniel Construction hired a subcontractor. Id. at 1222. One of the
subcontractor’s employees was injured on-site, and the employee brought
suit, arguing in part that Conoco was negligent in hiring Daniel Construction.
Id. The court’s full analysis on the negligent-hiring issue was:
There is no evidence that Conoco knew, at the time it hired
Daniel Construction Company, that Daniel was irresponsible.
Any negligent conduct of Daniel in allowing the Morgan
employees to work without fall protection in violation of the
safety regulations occurred after Daniel was hired by Conoco.
The Louisiana cases cited by plaintiff to support his contention
look to the employer’s knowledge at the time of hiring.
Id. at 1224–25.
The Casino argues that the “knowledge at the time of hiring”
language in this and other cases demonstrates an actual-knowledge
requirement. The Casino sees more than we do. The Guillory analysis is
focused on the timing of the necessary knowledge but not its type — actual
or constructive. In Guillory, as in the other cases relied upon by the Casino,
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the court was not responding to an argument that Louisiana law required
actual knowledge or that constructive knowledge was sufficient. 1
Finding some support for constructive knowledge from these opinions
and none for actual knowledge, we now look for general Louisiana principles
of negligence and negligent hiring outside of the context of independent
contractors. The source for the right to recover for injury caused by
negligence is statutory: “Every act whatever of man that causes damage to
another obliges him by whose fault it happened to repair it.” La. Civ.
Code art. 2315(A). The Louisiana Supreme Court has stated that “the
foundation of any tort lies within” that statute. Reynolds v. Bordelon, 172 So.
3d 589, 595 (La. 2015). In its seminal negligent-hiring case, that court
recognized a municipal employer’s duty “to exercise reasonable care in
hiring.” Roberts v. Benoit, 605 So. 2d 1032, 1038 (La. 1991). In that opinion,
the court “expressly recognize[d] the tort of negligent hiring as cognizable
under Louisiana fault principles embodied in [article] 2315.” Id. at 1044.
Also helpful in our analysis is that the state’s high court has defined
negligence in terms of the reasonableness of a party’s conduct:
All theories of recovery, or categories of tort liability, are
“fault” in Louisiana, although they represent different levels
of blameworthiness or culpability . . . . [Moving along a
spectrum of fault,] one arrives at negligence, i.e., the actor
knew or should have known that his conduct presented an
unreasonable risk of harm to someone, and he or she failed to
act reasonably to avoid that risk.
1
The Casino cites to other cases for the proposition that actual knowledge is
required. See Evans v. Allstate Ins. Co., 194 So. 2d 762 (La. Ct. App. 1967); Perkins v.
Gregory Mfg. Co., 671 So. 2d 1036 (La. Ct. App. 1996); Schram v. Colony Specialty Ins. Co.,
No. 16-598, 2016 WL 7475827 (La. Ct. App. Dec. 29, 2016). None of these courts had the
issue of whether the knowledge requirement for negligent hiring imposed an actual or
constructive standard, and we do not read any of them as answering that question.
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Reynolds, 172 So. 3d at 595–96 (quoting Frank L. Maraist & Thomas
C. Galligan, Jr., Louisiana Tort Law § 1.03 (2004)).
The same treatise that was quoted by the state court has another,
helpful explanation: “An actor is negligent if he knows or should know of a
risk and fails to exercise reasonable care to avoid or reduce that risk. It is ‘the
failure to exercise reasonable care under the circumstances.’” Frank L.
Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law §
1.05 (perm. ed., rev. vol. 2013). We conclude that under these principles, a
factfinder is entitled to decide that a potential employer’s duty to use
reasonable care to reduce a risk may include making further inquiries if the
notice it does have of potential problems is suggestive but inconclusive.
Our best guess, then, in the Erie sense of course, is that Louisiana law
assesses the reasonableness of the principal’s actions based not only on what
the principal actually knew when it hired an independent contractor, but also
relevant is what was reasonable, i.e., what it should have known. 2
Consequently, the district court’s instruction was not erroneous.
The parties stipulated that the Casino hired AWR in January 2017, so
the relevant question is whether the Casino knew or should have known in
January 2017 that AWR was incompetent. The relevant evidence includes
that a bird-control company named Bird-X recommended AWR to David
Stuart, Director of Business and Process Improvement for the Casino. Stuart
2
We decline to certify the question to the Louisiana Supreme Court because
certification is not to be used indiscriminately. “As a general proposition we are chary
about certifying questions of law absent a compelling reason to do so; the availability of
certification is such an important resource to this court that we will not risk its continued
availability by going to that well too often.” Jefferson v. Lead Indus. Ass’n, Inc., 106 F.3d
1245, 1247 (5th Cir. 1997). In the absence of a decision from the state supreme court, we
may use our “best judgment” to make an “Erie guess” as to how the state supreme court
would resolve the question. Temple v. McCall, 720 F.3d 301, 307 (5th Cir. 2013). We find
ample authority to resolve the issue ourselves.
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contacted some of AWR’s references and received no negative information
about AWR. The BBB, though, had given AWR an “F” rating. The
Casino’s internal policies required that before beginning work, an
independent contractor had to provide a certificate of insurance with a
minimum amount of coverage that identified the Casino as an additional
insured. AWR provided a certificate of insurance to the Casino at about the
time it began work on the project, February 6–7, 2017, but the identified
policy had expired in October 2016.
The Casino argues that none of this evidence is relevant. The “F”
rating from the BBB, the Casino points out, was not necessarily a result of
safety concerns and could not have put the Casino on notice of safety risks in
hiring AWR. At trial, the jury heard that a business’s failure to respond to
consumer complaints against that business was the most common reason for
an “F” rating. There is no evidence that the Casino knew what earned a
business an “F” rating when it hired AWR, and the Casino denied
knowledge of the rating anyway. The jury, however, could have found that
the Casino at least should have known about the rating when hiring AWR.
We find that the rating itself is not strong evidence of AWR’s ability to
complete the project safely or competently, but it is some evidence to support
that the Casino should have investigated further before contracting with the
company. The BBB rating may reflect more on the Casino’s failure to
investigate adequately before hiring AWR than it reflects on the competency
of AWR. The jury, however, is permitted to make inferences from the
evidence. Regardless, the BBB rating is not the only evidence Echeverry
presented for the negligent-hiring theory.
Other evidence was that AWR’s certificate of insurance showed an
expired insurance policy. The Casino’s internal policies required that it hire
only contractors who were insured. There was evidence at trial that the
Casino hired AWR through a purchase request rather than a more formal
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contract in order to accelerate the process. Under usual circumstances, the
Casino would delay issuing a purchase order until it had received a valid
certificate of insurance from the vendor, but that did not occur here. The
Casino argues that this evidence does not support negligent hiring because it
did not know that AWR was uninsured until after it hired AWR and,
regardless, insurance is not probative of safety. Even if the Casino did not
learn of AWR’s lack of insurance until after it hired AWR, we conclude that
jurors could have found that the Casino should have sought to learn earlier.
In making such a finding, jurors could have relied in part on testimony from
a director in strategic sourcing at Caesars Entertainment, which owns the
Casino, who stated in his deposition played at trial that he agreed “that
responsible contractors are insured contractors.” AWR’s failure to conform
to the Casino’s requirements is itself a kind of incompetency.
Next, there was evidence that AWR did not have its own equipment
to use in the bird removal. We do not see this alone as sufficient evidence of
incompetence, but it could suggest to factfinders that AWR was not a well-
established, substantial, and experienced company. Patrick Maher, Director
of Facilities at the Casino, testified at trial that he generally expected
contractors to provide their own equipment when he hired them. Jurors
could have considered the evidence of AWR’s lack of the necessary
equipment to support that the Casino should have been concerned about
whether AWR was sufficiently experienced to be competent for the work.
There also was evidence that AWR’s permit had expired by the time
of the accident on February 16, 2017, and that AWR was short-staffed. AWR
acquired a valid work permit when it arrived in New Orleans to begin the
project, but the project continued after the permit expired. AWR acquired
the permit on February 6, 2017; the start date of the permit was that same
day, and it had an end date of February 8, 2017. It is difficult to see the
relevance of the expired permit to the negligent-hiring claim because the
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Casino neither knew nor could have known about its expiration when it hired
AWR in January 2017. The same is true regarding the fact that AWR was
short-staffed. The evidence at trial showed that two AWR employees quit at
the beginning of the project, but there was no evidence presented at trial that
the Casino knew or should have known in January that AWR would be short-
staffed when removing the birds. Because the Casino neither knew nor could
have known about either the expiration of the permit or that AWR was short-
staffed at the time it hired AWR in January 2017, these facts are inapplicable
to the negligent-hiring analysis.
The BBB rating, the certificate of insurance showing an expired
policy, and AWR’s lack of equipment together are more than a scintilla of
evidence to support a finding that the Casino was negligent in hiring AWR.
The evidence is sufficient as to the negligent-hiring claim.
We proceed to the next theory.
B. Operational control
A principal may be liable for the actions of its independent contractor
if the principal retains operational control. Coulter, 117 F.3d at 911–12.
Determining whether a principal has retained operational control requires
“an examination of whether and to what extent the right to control work has
been contractually reserved by the principal.” Id. at 912. The supervision
and control that is actually exercised by the principal is less important than
the right to control that is contractually reserved. Ainsworth v. Shell Offshore,
Inc., 829 F.2d 548, 550–51 (5th Cir. 1987). Still, a contractual clause requiring
an independent contractor to comply with the principal’s safety rules does
not alone signify the principal’s retaining operational control. Davenport v.
Amax Nickel, Inc., 569 So. 2d 23, 28 (La. Ct. App. 1990). The fact that a
principal “reserves the right to monitor its contractor’s performance[,] . . .
observes the contractor’s activities, . . . make[s] safety recommendations to
the contractor, and is obligated to report continuing unsafe work practices or
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conditions . . . does not mean that the principal controls the . . . contractor’s
work.” Coulter, 117 F.3d at 912. When the independent contractor has
“responsibility for its own activities, the principal does not retain operational
control.” Fruge ex rel. Fruge v. Parker Drilling Co., 337 F.3d 558, 564 (5th Cir.
2003). A principal retains operational control if it has “direct supervision
over the step-by-step process of accomplishing the work such that the
contractor is not entirely free to do the work in his own way.” Id. Whether
a principal retains operational control turns on the principal’s control over
the independent contractor and its employees, not on the principal’s control
over its own premises. Collins v. Home Depot, U.S.A., Inc., 182 So. 3d 324,
331 (La. Ct. App. 2015).
Echeverry relies on a case from the Fourth Circuit Court of Appeal of
Louisiana. There the “company man” performed actual safety checks on the
worksite. Denson v. Diamond Offshore Co., 955 So. 2d 730, 733–34 (La. Ct.
App. 2007). That court distinguished its facts from those of cases where the
company representatives occasionally visited worksites but did not perform
safety checks themselves. Id. at 734. As the Casino states, the contract at
issue in Denson explicitly vested several aspects of operational control in the
principal. Id. at 733. The independent contractor had to “comply with all
instructions,” including safety instructions, of the principal and was “under
the direction and supervision” of the principal. Id. Because of the contract
language and the fact that the company representative performed safety
checks at the jobsite, there was a genuine issue of material fact as to who had
operational control. Id. at 734. The court reversed the trial court’s grant of
summary judgment. Id. at 733, 735.
Conversely, this court affirmed a district court’s grant of summary
judgment on the claim of operational-control negligence when the principal
did not have direct supervision over the step-by-step processes of the
independent contractor’s work. Fruge, 337 F.3d at 564, 566. In Fruge, the
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contract between Anadarko and its independent contractor, Parker Drilling,
made Parker responsible for the “operation and control of the Drilling Unit.”
Id. at 564. “Anadarko provided on-site supervision 24-hours per day, via
various independent contractors whose employees reported to Anadarko.”
Id. The court held that physical presence of the principal was not enough to
raise a genuine dispute of material fact as to who had operational control, and
summary judgment for the defendant was appropriate. Id. at 564–65.
Here, there was no written agreement between the parties, so the level
of control was not formalized. The jury had some evidence that the Casino
maintained operational control over AWR. The Casino provided all the
equipment to AWR for the bird-removal project: a manlift, barricades, and a
dumpster. It also provided groundskeepers to clean up the sidewalks. Its
employee David Stuart attended safety meetings with AWR regarding the
safety precautions for the project. He had signs made to direct pedestrians.
He would check on the project and lend a hand when he was available to do
so, directing pedestrians and trying to keep people safe.
This evidence was sufficient for the jury to find the Casino liable for
Echeverry’s injury under an operational-control theory.
C. Authorization of unsafe work practices
A principal may be held liable for the unsafe practices of an
independent contractor if the principal “expressly or impliedly authorized
the particular manner which will render the work unsafe.” Davis v. Dynamic
Offshore Res., L.L.C., 865 F.3d 235, 236 (5th Cir. 2017) (quoting Ewell v. Petro
Processors of La., Inc., 364 So. 2d 604, 606–07 (La. Ct. App. 1978)). A
company man’s observing and failing to object to the independent
contractor’s unsafe work practices is insufficient evidence of authorization
to defeat a motion for summary judgment. Graham, 21 F.3d at 646–47. The
fact that only an independent contractor participated in the decision to use
the negligent procedure weighs heavily against finding that the principal
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authorized the unsafe work practice. Id. (interpreting Williams v. Gervais F.
Favrot Co., 499 So. 2d 623 (La. Ct. App. 1986)).
The threshold question of this theory of negligence is whether the
particular manner in which the work practice was conducted was unsafe.
This analysis requires determining at what level of generality to view the
work practice. We have provided some clarity on this issue under Louisiana
law. See Davis, 865 F.3d at 236–37. In Davis, we held that, based on those
facts, the exception to a principal’s shield from liability did not apply. Id. at
237. Davis was a crane mechanic employed by Gulf Crane Services, which
was hired as an independent contractor by Dynamic Offshore Resources. Id.
at 235. On the relevant day, Davis was obtaining a winch from Dynamic
Platform 86A to transfer to Platform 86B so that he could replace a winch
there. Id. at 235–36. While at Platform 86B, Davis grew concerned about the
safety of the work because of the wind, so he used his “stop work authority”
to delay the work. Id. at 236. Rather than radio those at Platform 86A to
inform them to stop, he asked the crane operator to transport him to Platform
86A in a personnel basket. Id. The operator swung the basket into the wind
when he should have swung it with the wind. Id. Davis dropped six to eight
feet in the basket and was injured. Id.
The court reviewed the district court’s summary judgment for
Dynamic, analyzing whether there was a genuine dispute of material fact as
to the question of implied authorization of unsafe work practices. Id. The
court framed the particular manner of the practice as making a personnel-
basket transfer in high winds. Id. at 237. In doing so, the court could have
but did not frame the unsafe work practice as making personnel-basket
transfers generally or making personnel-basket transfers by swinging into
instead of with the wind. See id. Rather than a highly specific or general
frame, that court chose the one in the middle. In Davis, the court held that
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Dynamic as a matter of law had not authorized the personal-basket transfer
in high winds and affirmed summary judgment. Id.
Here, the Casino offers a broad framing of the work practice as being
the use of a flagman to move a manlift. It argues that because using a flagman
to move a manlift is the industry standard, Echeverry’s claim fails the
threshold requirement that the work practice be unsafe before even
addressing whether the Casino authorized it. Alternatively, the Casino
frames the practice narrowly as the failure of the flagman to make an effective
warning to pedestrians in the path of the manlift; the Casino is correct that it
did not authorize that particular manner of using a flagman. Our evaluation
of Davis makes us conclude that the relevant practice needs to start with the
underlying action of using a manlift, then add some specifics of the occasion
of its use — here, moving a manlift against vehicular traffic at a busy
intersection when there was substantial pedestrian traffic. There was
evidence that the flagman did not alert Echeverry, and indeed just walked
past her despite the imminent passage of the manlift. Jurors had sufficient
evidence to support the conclusion that the particular manner in which the
manlift was moved was unsafe.
There was an unsafe work practice, but there must also be evidence
that the Casino expressly or impliedly authorized that unsafe practice. Again,
according to Louisiana law, a company man’s presence and knowledge of an
unsafe condition is insufficient to make the company liable under the implied-
authorization exception. Graham, 21 F.3d at 646–47. In Graham, we
interpreted a Louisiana case as holding that the principal was not liable under
this exception because “only the [independent contractors] participated in
the decision to use [the negligent] procedure.” Id. at 646 (bracketed
insertions in original) (quoting Williams, 499 So. 2d at 626).
Unlike in Graham, the Casino here did participate in the decision to
use a flagman. Casino employee Stuart attended safety meetings with AWR
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to discuss the practices that would be used, including using a flagman. The
Casino provided AWR with the manlift. The Casino was also trying to
expedite the project so that it could be completed before Mardi Gras and the
NBA All-Star game, designating the purchase order as “urgency:
emergency.” The evidence was sufficient for a reasonable jury to conclude
that the Casino had authorized unsafe work practices.
There is sufficient evidence under each theory of negligence. Next,
we analyze whether the Casino is entitled to a new trial due to errors in the
admission of evidence.
II. Admission of evidence at trial
Prior to the trial, the Casino sought to exclude certain categories of
evidence, including (1) a certificate of insurance given by AWR to the Casino
showing an expired insurance policy; (2) the Casino’s internal policies
regarding hiring independent contractors; (3) AWR’s “F” rating from the
BBB; and (4) photographic evidence of construction sites in New Orleans.
The district court denied the motion in limine as to the first two categories of
evidence. It granted in part and denied in part the motion to exclude evidence
from the BBB, but the jury was allowed to hear testimony regarding AWR’s
“F” rating from the BBB. The district court initially granted the Casino’s
motion to exclude photographic evidence of construction sites but then
allowed the photographs at trial.
For a new trial to be warranted based on admission of evidence, the
admission must have been an abuse of the district court’s discretion and have
affected the substantial rights of the complaining party. Price v. Rosiek Constr.
Co., 509 F.3d 704, 707 (5th Cir. 2007). When a party fails to show that
excluding the evidence would have altered the outcome of the case, the party
has not met its burden for a new trial. Id. at 707–08. For example, a party’s
substantial rights are affected if the erroneously admitted evidence was the
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only evidence admitted to prove an element. See Anderson v. Siemens Corp.,
335 F.3d 466, 473–75 (5th Cir. 2003).
The Casino claims that four types of evidence were erroneously and
harmfully admitted at trial. We examine them one at a time.
A. AWR’s “F” rating by the BBB
The Casino argues the district court abused its discretion by admitting
evidence of AWR’s “F” rating by the BBB. At trial, the evidence showed
that the BBB relies entirely on complaints about a business and any
supporting evidence provided in those complaints for its ratings. Depending
on the business size, a company can be automatically rated “F” after two
complaints are made against it without a response from the business. The
BBB does not investigate the safety of work practices of a business beyond
publicly available information. All this means the BBB evidence is not very
probative of the safety and competency of AWR. Still, as we earlier
discussed, it might have been properly used by jurors as evidence of the
Casino’s failure to investigate AWR adequately. Regardless, the district
court has “great discretion” in admitting evidence that has any tendency to
make any material fact more or less probable. See Woods ex rel. Woods v. Int’l
Harvester Co., Inc., 697 F.2d 635, 639 (5th Cir. 1983); Fed. R. Evid. 401.
The evidence of the BBB rating at least added to the jurors’ understanding
that the Casino missed another of the markers that could have led to further
inquiry, even if the inquiry would not have led to much of significance. We
find no abuse of the district court’s discretion by admitting this evidence.
B. AWR’s certificate of insurance
The Casino argues that the district court’s admission of evidence of
AWR’s expired certificate of insurance entitles it to a new trial. The Casino
relies on Federal Rule of Evidence 411, which makes inadmissible the
existence or nonexistence of insurance for purposes of proving or disproving
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a party’s negligence. Fed. R. Evid. 411. Evidence of insurance is
admissible for certain relevant purposes. Id. Here, AWR’s lack of insurance
was not admitted on the issue of AWR’s negligence but to prove the Casino’s
negligence in hiring AWR. Rule 411 was not violated.
The Casino also argues that the insurance evidence is irrelevant to its
negligence because whether AWR had a certificate of insurance identifying
its current policy at the time of hiring had no bearing on AWR’s safety or
competence. The bar for relevant evidence is low; the evidence needs to have
only “any tendency” to make a fact in question more or less likely. Fed. R.
Evid. 401(a). A district court is given great deference in this determination.
The district court did not abuse its discretion, and we do not need to reach
the question of harmlessness.
C. The Casino’s internal policies
The Casino argues that the district court abused its discretion by
admitting the Casino’s internal policies into evidence. The Casino relies on
Dragna, 638 F. App’x at 320, for this proposition. While Dragna, which is
not precedent, held that internal policies did not establish the applicable
standard of care, that panel did not go so far as to say that evidence that a
principal violated its internal policies is irrelevant to the question of
negligence. Id. We conclude that failure to follow internal policies can be
relevant. The district court did not abuse its discretion by admitting the
evidence.
D. Construction-site photographs
The district court granted the Casino’s motion in limine to exclude
photographic evidence of construction sites because Echeverry was injured
at a bird-removal site, not a construction site. At trial, though, the Casino’s
expert witness was impeached with his deposition testimony that the bird-
removal site where Echeverry was injured closely resembled a construction
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site. Because of that statement, the district court allowed the photographs of
New Orleans construction sites to be introduced at trial.
The district court did not abuse its discretion by admitting the
evidence of construction sites. Echeverry sought to use the evidence of
construction sites that had barricades to show that there should have been
barricades in place to prevent her injury. The fact that the bird-removal site
did not have barricades when similar construction sites did is some evidence
of a breach of the applicable standard of care, especially when the Casino’s
expert made the comparison to construction sites. The Casino was allowed
to present evidence that tended to justify why there were no barricades, and
the jury weighed the evidence.
A new trial was not required based on erroneous admission of
evidence.
III. Excessive damages for future pain and suffering
We review the denial of a motion for a new trial or remittitur in the
alternative for abuse of discretion. Puga v. RCX Sols., Inc., 922 F.3d 285, 296
& n.9 (5th Cir. 2019). We have generally used the maximum-recovery rule,
which “permits a verdict at 150% of the highest inflation-adjusted recovery in
an analogous, published decision”; we have recently identified this court’s
inconsistencies concerning the stage of the inquiry at which we apply it and
to what extent it applies in diversity-jurisdiction cases. Longoria v. Hunter
Express, Ltd., 932 F.3d 360, 365 (5th Cir. 2019). We have sometimes applied
the maximum-recovery rule “at the outset to determine whether the
damages are excessive,” and other times “only to determine how much of a
reduction is warranted after deciding the award is excessive.” Id. In
Longoria, we suggested that the correct process in a diversity-jurisdiction
case may be to use state law to determine whether the damages are excessive
and the maximum-recovery rule in setting remittitur. Id. at 366. In that case,
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though, we did not definitively resolve the question because the outcome was
the same under the state or federal standard. Id. The same is true here.
Under Louisiana law, a court should reduce a jury’s award when it 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.” Youn v. Mar. Overseas Corp., 623 So. 2d 1257, 1261 (La.
1993). Louisiana law would not look to “prior awards in cases with
generically similar medical injuries to determine whether the particular trier
of fact abused its discretion” in its award to the particular plaintiff under the
particular facts of a case. Id. at 1260. After a Louisiana appellate court has
determined that the award was an abuse of discretion, it may then look to
prior awards to determine the highest reasonable award. Id. Under the
maximum-recovery rule, we will uphold a damages award where the damages
amount is proportionate to at least one factually similar, published Louisiana
case. See Longoria, 932 F.3d at 365. We refuse to overturn jury awards that
are within 150% of the highest award in a factually similar case. Puga, 922
F.3d at 297. This rule preserves as much of the jury’s award as possible.
Longoria, 932 F.3d at 365.
Here, the award was excessive under either standard. Echeverry had
three surgeries to repair her ankle injuries. She had a trimalleolar fracture,
involving breaks to her lateral malleolus, medial malleolus, and posterior
malleolus. The fracture was comminuted, meaning that her ankle was in
pieces. Echeverry’s ankle already shows signs of post-traumatic arthritis.
She will have chronic, “toothache”-like pain for the rest of her life, as well as
scarring. Further, part of her cartilage is permanently damaged. Echeverry
returned to work in January 2018 as a pharmacy technician, standing for
about eight hours a day, and had her third surgery in August 2018. She takes
over-the-counter pain medication throughout the workday to help with her
pain. At the time of trial, she was 33 years old and had no physical restrictions
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from doctors. An expert at trial testified that Echeverry’s life expectancy was
52.2 years. The million-dollar award for future pain and suffering under
these particular circumstances is “beyond that which a reasonable trier of
fact could assess” based on Echeverry’s injuries. See Youn, 623 So. 2d at
1261.
We also assess the future-pain-and-suffering award under the
maximum-recovery rule to determine whether it is excessive under that rule.
This analysis will also serve as the second step under Louisiana law —
determining the highest reasonable award. The district court, in applying the
maximum-recovery rule, relied on the damages award in an unpublished
decision that was later vacated and remanded for a new trial on damages for
allowing irrelevant and prejudicial evidence. See Naquin v. Elevating Boats,
LLC, No. 10-4320, 2012 WL 5618503 (E.D. La. Nov. 15, 2012), aff’d in part,
vacated in part, remanded Naquin v. Elevating Boats, L.L.C., 744 F.3d 927 (5th
Cir. 2014). This court has declined to rely on unpublished opinions for the
maximum-recovery rule. Lebron v. United States, 279 F.3d 321, 326 (5th Cir.
2002). Naquin is thus not a good comparison for the maximum-recovery
rule, even before considering the factual differences between that case and
Echeverry’s.
Several published Louisiana cases provide insight. We acknowledge
that inflation will affect comparison of the monetary amounts. In one case,
the plaintiff’s injuries included a “comminuted fracture with medial
dislocation of the right talus (ankle joint), a comminuted fracture of the
medial malleolus of the right ankle, and a chip fracture of the medial aspect
of the lateral malleolus of the right ankle.” Black v. Ebasco Servs., Inc., 411
So. 2d 1159, 1161–62 (La. Ct. App. 1982). He had surgery on his ankle to
insert two metal screws and two pins. Id. He was still under medical
treatment at the time of trial and neither the screws nor pins had been
removed. Id. at 1161. The trial judge there did not itemize the damages but
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awarded $167,000 for pain and suffering, future medical expenses, and loss
of past and future wages, plus $3,922.53 for medical expenses. Id. at 1161,
1164. Finding that the district court abused its discretion by awarding an
insufficient sum, the Louisiana court of appeal concluded that a reasonable
award for past and future pain and suffering would be $40,000. Id. at 1164.
Considering that and reasonable damages for other damage categories, the
court raised the total award to $249,922.53. Id. at 1165.
In another case, the plaintiff suffered a trimalleolar fracture of her
right ankle. Hebert v. Veterans Veterinary Hosp., Inc., 694 So. 2d 993, 996 (La.
Ct. App. 1997). Her bones were fused in surgery with screws and plates, and
a second surgery was performed to remove the screws and plates. Id. She
had scarring and arthritis in her ankle, the possibility of future surgery, and
nonsurgical medical treatment for the rest of her life. Id. The jury awarded
her $165,000 for past and future pain and suffering, disability, and scarring.
Id. Her life expectancy at the time of trial was 17.9 years. Id. The Louisiana
appellate court held that “the award is on the high side” but did not hold that
it was an abuse of discretion. Id. at 997. Even accounting for inflation, the
difference in life expectancies between Echeverry and the plaintiff in Hebert,
and the 50% enhancement, the award on the “high side” there shows how
excessive Echeverry’s million-dollar award is.
Finally, in another Louisiana case the plaintiff sustained what the
opinion called “a fractured dislocation of her ankle,” requiring two surgeries.
Kennedy v. Columbus Am. Props., L.L.C., 751 So. 2d 369, 370 (La. Ct. App.
2000). The evidence at trial suggested that she might require more surgery
in the future. Id. at 374. She had scarring from the surgeries, and she had led
an active lifestyle prior to the accident. Id. She also had degenerative
arthritis. Id. The jury awarded her $220,000 in general damages. Id. at 370.
The Louisiana court of appeal noted that “$220,000 seems to be at the high
end of the range,” but ultimately held the judgment reasonable. Id. at 374.
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These cases demonstrate the excessiveness of Echeverry’s
$1,000,000 award for future pain and suffering and provide guidance for
what the highest reasonable award is. Even adjusted for inflation and with
the 50% enhancement, Echeverry’s award is far greater than factually similar
cases. The district court abused its discretion by denying the Casino’s
motion for a new trial on damages or remittitur.
***
The evidence was sufficient to support the jury’s negligence verdict
on each of three theories presented to it. The district court did not abuse its
discretion by admitting any of the objected-to evidence. The award for future
pain and suffering, though, was excessive.
We VACATE the jury’s $1,000,000 award for future pain, suffering,
mental anguish, disability, scarring, and disfigurement as excessive and
REMAND for a new trial on damages or a remittitur determination in light
of the factually similar cases we have cited and others that might be brought
to the district court’s attention. The petition for rehearing is DENIED. 3
3
Because no member of this panel nor judge in regular active service on the court
requested that the court be polled on Rehearing En Banc, (Fed. R. App. P. and 5th Cir.
R. 35) the Petition for Rehearing En Banc is also DENIED.
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