United States District Court, M.D. Louisiana
RULING AND ORDER
W. DeCRAVELLES JUDGE
the Court is the motion of defendants KLLM Transport
Services. LLC and Great West Casualty Co. ("Defendants)
to exclude the testimony of two experts listed by plaintiff
Nicole Lynn Baxter ("Plaintiff'): vocational
rehabilitation expert Stephanie Chalfin and economist G.
Randolph Rice. (Doc. 68.) Defendants also ask that Plaintiffs
claims for lost wages, loss of future earning capacity and
future medical expenses be dismissed and that Defendants be
awarded attorney's fees and costs. (Id.) The
motion is opposed in part. (Doc. 69.) For the reasons which
follow, the motion is denied in part as moot and the
remainder of the motion is simply denied.
respect to the challenge to Chalfin and Rice. Defendants
argue that because Plaintiff failed to timely file expert
reports for either expert, neither expert should be allowed
to testify. (Doc. 68-1 at 4-7.) While Defendants' motion
also asks that the wages, earnings capacity and medical
expenses claims be dismissed (Doc. 68 at 1), their memorandum
does not support this request.
represents that she "does not plan to call [either
expert]...as the facts of this case do not necessitate either
a vocational rehabilitation expert or economist." (Doc.
69 at I.) Therefore, the Court denies this portion of the
motion as moot.
Plaintiffs wages and medical expenses claims. Plaintiff
argues she underwent a two level cervical disc replacement as
a result of the accident, has incurred medical expenses as a
result of this injury and will likely incur additional
expenses before fully recovering. (Doc. 69 at 2.)
Furthermore, Plaintiff urges that because of the accident,
she has been unable to work at her job, has lost earnings,
and at least for some period of time in the future, will lose
additional earnings. (Id.) Without citation of
authority, she argues that none of the damages sought to be
excluded require expert testimony. (Id., at 3-4.)
no expert is required for Plaintiff to establish her past
lost wages and past medical expenses. This can be done with a
knowledgeable fact witness and supporting documentation.
Court notes, however, that with respect to proving a future
loss of earnings capacity claim, neither vocational
rehabilitation expert testimony nor economic expert testimony
is required. Barocco v. Ennis. Inc.. 100
F.App'x. 965, 968 (5th Cir. 2004); Rea v. Wisconsin
Coach Lines, Inc., No. 12-1252. 2014 WL 5039591 at *4
(E.D. La. Oct. 8. 2014); Mcleod v. New Orleans Belt
Railroad Commission, No. 10-1907, 2013 WL 322109 at *5
(E.D. La. Jan. 28, 20\3); Barclay v. Cameron Charter
Boats. Inc., No. 09-462, 2011 WL 3468380. at *4 n.l
(W.D. La. Aug, 8, 2011). "In short, all that Louisiana
law requires a plaintiff to show in order to receive an award
for loss of future earning capacity is 'medical evidence
which at least indicates there could be a residua! disability
causally related to the accident." Bairocco,
100 F.App'x. at 968 (quoting Bize v. Boyer. 408
So.2d 1309. 1311-12 (La. 1982)). Furthermore, lay testimony
as well as other items, such as actuarial tables, may be
introduced to support the loss of earning capacity claim.
loss of earning capacity claim, what Baxter previously earned
is not the issue and the claim does not necessarily involve
What plaintiff earned before and after the injury does not
constitute the measure. Even if he had been unemployed at the
time of the injury he is entitled to an award for impairment
or diminishment of earning power. And while his earning
capacity at the time of injury is relevant, it is not
necessarily determinative of his future ability to earn,
[(citation omitted)] Damages should be estimated on the
injured person's ability to earn money, rather than what
he actually earned before the injury. . . .
Earning capacity in itself is not necessarily determined by
actual loss; damages may be assessed for the deprivation of
what the injured plaintiff could have earned despite the fact
that he may never have seen fit to take advantage of that
capacity. The theory is that the injury do in- him has
deprived him of a capacity he would have been entitled to
enjoy even (hough be never profited from it monetarily
Fecke v. Bd. of Supervisors of Louisiana State Univ,
2015-1806 (La. 9/23/16). ___ So.3d ___. 2016 WL 5390302 at
*21-22, modified on reh'g sub nam. Fecke v. Bd of
Supervisors of Louisiana Stale Univ. & Agric. & Mech.
Coll., 2015-1806 (La. 10/19/16) (quoting Folse v.
Fakouri, 371 So.2d 1120 J 123-24 (La. 1979) (emphasis
added by Fecke court)).
on the showing made by Defendants, there is no justification
at this pretrial stage to strike Plaintiffs wage loss, loss
of earning capacity and past and future medical expenses
claims. Therefore, the remainder of Defendants' motion,
including their request for reasonable attorney fees and
expenses, is denied.