Lewis Barbe Expert Witness - Guidrey Case

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Lewis Barbe was knowledgeable before entering his field as an expert and has invested energy at three distinct colleges; Pennsylvania State, Illinois Institute of Technology, and the University of Iowa.

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896 So.2d 164. 2004-325 La.App. 3 Cir. 1 2 / 2 9/04 Cite as: 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 H Court of Appeal of Louisiana. Third Circuit. Julie GUIDRY. et al. v. COREGIS INSURANCE COMPANY et al. No. 04-325. Dec. 29 2004.

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Background: Widow for herself and on behalf of her children brought legal malpractice action against attorneys for allowing cause of action for wrongful death of her husband who was electrocuted while repairing a sign. to prescribe. Following a jury verdict the Fourteenth .1u-dicial District Court Parish of Calcasieu. No. 98-4848 Michael Canada \ . J.. granted plaintiffs a judgment not- withstanding the verdict JNOV reallocating fault among the potential defendants in underlying case. All parties appealed. Holdings: The Court of Appeal Woodard J.. held that: 1 whether aerial ladder husband was using was unreasonably dangerous in design because bucket was not insulated and whether lack of insulation was a proximate cause of husbands death were issues for the jury: 0 whether owner of truck stop that requested signs be repaired breached its duty to not expose widows husband to unreasonable risks of harm and whether husband would not have died but for such breach were issues for the jury: .3.4 whether sign company who had employed widows husband breached its duty under the Workers Compensation Law and whether husband would not have died but for such breach were issues for the jury: 4. evidence was sufficient to support jurys allocation of fault to parties who would have been the defendants in the underlying action: .5 child who was not a biological child of widows husband could not recover wrongful death and survivor benefits: o evidence was sufficient to support award of 350.000 for husbands past wages and loss of earning capacity: and t7f award of 10000 for husbands pre- death pain and suffering was so low in proportion to the injury that it shocked the conscience and award of 75000 was the lowest reasonable amount. Affirmed in part as amended reversed in part. and rendered.

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Woodard. J.. concurred in part and assigned reasons. West I leadnotes J l Attorney and Client 45 C-----1294 45 Attorney and Client 45111 Duties and Liabilities of Attorney to Client 45k19 Actions for Negligence or Wrongful Acts 45k1294 k. Damages and Costs. \ 10 4 Ciit:4 Aside from distress resulting from the legal malpractice plaintiffs damages in a legal malpractice suit are determined by the damages if any. they would have re- ceived had they prevailed in the underlying lawsuit. 1__j Attorney and Client 45 € . 105.5 45 Attorney and Client Lill Duties and Liabilities of Attorney to Client 151:105.5 k. Elements of Malpractice or Negligence Action in General. \lost Cited A legal malpractice plaintiff must establish a prima facie case by showing that she and the attorney had an attorney-client relationship and that her attorney was negligent. 1 . 31 Attorney and Client 45 C--- 1292 45 Attorney and Client 45111 Duties and Liabilities of Attorney to Client Actions for Negligence or Wrongful Acts 45k1292 k. Pleading and Evidence. Moss. Cited Cases In a legal malpractice action. after the plaintiff establishes a prima facie case by showing that she and the attorney had an underlying attorney-client

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relationship and that the attorney was negligent the burden of production 896 So.2d 1642004-325 La.App. 3 Cir. 12/29/04 Cite as: 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 shifts to the defendant attorney charging him to provide evidence sufficient to prove the plaintiff would not have prevailed on the underlying claim. t_41 Attorney and Client 45 €---1293 45 Attorney and Client 45111 Duties and Liabilities of Attorney to Client 15k129 Actions for Negligence or Wrongful Acts 45k..20 .3 k. Trial and Judgment. Most Cited Cases Products Liability 313A 1 :256 313A Products Liability "3 .. 13A111 Particular Products 313Ak256 k. Ladders and Scaffolds. Most Cited caws Formerly 313Ak94 Products Liability 313A 0 7 400 .3133 Products Liability 313 AI V Actions 313AIV D Questions of Law or Fact 313AHOO k. In General. Most Cited Cases Formerly 3 I 3Ak94 Whether aerial ladder was unreasonably dangerous whether ladder was

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employed in a reasonably anticipated use and whether lack of fiberglass insulation was a proximate cause of death were issues for the jury. in widows legal malpractice action in which jury was required to allocate fault among potential defendants brought against attorneys for allowing cause of action for wrongful death of her husband who was electrocuted while repairing a sign. to prescribe: witness testified that if bucket husband was in had been insulated with fiberglass husband would have only suffered a slight shock. witnesses testified that aerial ladder was commonly used in sign industry and there was no evidence that widows husband was operating the ladder in an inappropriate manner. 1..SA-R.S. 0:2800562. A duty-risk analysis is used to determine whether a party is liable for its negligence given the particular facts of the case. thi Negligence 272 €202 171 Negligence 772 . 1 In General k. Elements in General. Mo q Cited cases Duty-risk analysis used to determine whether a party is liable for its negligence given the particular facts of the case consists of four elements: I whether the defendant owed the plaintiff a duty of care: 2 and if so. whether that duty encompassed the particular risk of harm the plaintiff suffered: 3 whether the defendant breached that duty: 4 and if so whether the breach was a cause-in-fact of the plaintiffs injuries. 0 Negligence 272 C1010 272 Negligence 2:12xyll Premises Liability 272X Vt1 . 13 . Necessity and Existence of Duty 27 7 11010 k. In General. Most CitQd Caws

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Negligence 272 € 1032 27 Negligence 272X VII Premises Liability 272X VlIC. Standard of Care 77 . 210 . 032 k. Reasonable or Ordinary Care in General. Most Cited Cases Negligence 272 C---1033 277 Negligence 272X VII Premises Liability 272XV11 . C Standard of Care 272k k. Reasonably Safe or Unreasonably Dangerous Conditions. Most Cited Cases Generally. the owner or operator of a facility has the duty of exercising reasonable care for the safety of persons on his premises and the duty of not exposing such persons to unreasonable risks of injury or harm.896 So.2d 164. 2004-325 La.App. 3 Cir. 1229/04 Cite as: 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 0.3 Electricity 145 C141 145 Electricity 145k12 Injuries Incident to Production or Use 145k14 Care Required in General 145k14W k. In General. Most Cited aces Owner of truck stop that requested its signs he repaired had a duty to not expose sign company employee to unreasonable risks of harm.

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L1 Attorney and Client 45 €----1293 45 Attorney and Client 45 . 414 Duties and Liabilities of Attorney to Client 45k129 Actions for Negligence or Wrongful Acts 4511290 k. Trial and Judgment. 1\1oi Cited Cases Electricity 145 re:199 145 Electricity 145k12 Injuries Incident to Production or Use 145k 19 Actions 145k190 Questions for Jury 45k1919 k. Prevention of Contact Be- tween Different Wires or Conductors. Most cited Caws Whether owner of truck stop that requested its signs be repaired breached its duty to not expose widows husband who worked for sign company to unreasonable risks of harm and whether signs proximity to power lines was cause of husbands death were issues for the . jury. in widows legal malpractice action against attorneys who allowed cause of action for wrongful death of her husband. who was electrocuted while repairing signs. to prescribe. wherein jury was required to allocate fault among potential defendants in underlying suit: there was evidence that placement of one of the signs on pole containing three signs violated Occupational Safety and Health Administration OSHA rule requiring a ten-foot clearance from overhead power lines and that it was impossible for widows husband to work on such sign without violating ten foot rule. 110 Negligence 272 0211 371 Negligence

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27211 Necessity and Existence of Duty 7k211 k. Public Policy Concerns. \lost ited The scope of the duty inquiry on a negligence claim is ultimately a question of policy as to whether the particular risk falls within the scope of the duty. 1111 Workers Compensation 413 €----2095 413 Workers Compensation 413XX Effect of Act on Other Statutory or Common-Law Rights of Action and Defenses :413 NNIA Between Employer and Employee 413X Xt /11 Exclusiveness of Remedies Afforded by Acts 131.2095 k. Failure to Install or Maintain Safety Devices. Most Cited Caws Workers Compensation Law requires employers to do everything reasonably necessary to protect the life. health safety. and welfare of its employees including providing proper safety devices and safeguards to render the employment safe considering the normal hazards of such employment. 1SA-IU 23: H. J12 Workers Compensation 413 €—2095 4 I Workers Compensation 413X X Effect of Act on Other Statutory or Common- Law Rights of Action and Defenses .113 X XA Between Employer and Employee 413 XXA Exclusiveness of Remedies At forded by Acts 4131.2095 k. Failure to Install or Maintain Safety Devices. Most Cited Cases

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Duty under the Workers Compensation Law of sign repair company to protect the life and safety of its employee encompassed the particular risk of injury by a power line: company knew that power lines posed a normal hazard to its employees and it was a frequent topic of conversation among its employees. 1..SA-R.S. 1131 Attorney and Client 45 c—1293 45 Attorney and Client 4511 . 1 Duties and Liabilities of Attorney to Client 45k129 Actions for Negligence or Wrongful Acts 45k1293 k. Trial and Judgment. Xlo:4 Citc1 Cases 96 So.2d 164. 2004-325 La.App. 3 Cir. 12/29/04 Cite as: 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 Electricity 145 C196.1 145 Electricity 145k12. Injuries Incident to Production or Use 145k 19 Actions 145k190_ Questions for Jury 145J:190.1 k. In General. 11 i 1ost Cited Cases Whether sign company that employed widows husband breached its duty under the Workers Compensation Law to do everything reasonably necessary to protect life and safety of husband. and whether but for companys breach of such duty husband would not have been clec-trocuted. were issues for the jury in widows legal malpractice action against attorneys who allowed cause of action for wrongful death of her husband. who

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was electrocuted while repairing signs. to prescribe. wherein jury was required to allocate fault among potential defendants in underlying suit: witness testified that if bucket on aerial ladder supplied by company that husband was in had been insulated husband would have only suffered a slight shock. and there was evidence that company failed to place proper significance on adherence to Occupational Safety and Health Administrations OSHA rule requiring persons to maintain a ten-foot clearance from overhead power lines. 1.SA-R..S. 23:13. J14 Negligence 272 C371 212 Negligence 272011 Proximate Cause 272k371 k. Necessity of Causation. I\ ited Caws Negligence 272 €379 2.72. Negligence 272N111 Proximate Cause 272k374 Requisites. Definitions and Distinctions 27210 7 9 k. "But-For" Causation: Act Without Which Event Would Not Have Occurred. Niot i. ited Cases Cause-in-fact is one of the essential elements of a plaintiffs personal injury claim and it is usually determined by using a "but for" test: if the plaintiff would not have been injured "but for" the defendants conduct the cause-in-fact component is met.115 Negligence 272 C- 1 421 272 Negligence 272X111 Proximate Cause

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271420 Concurrent Causes 2721.421 k. In General. Most Cited Cases When there is more than one action that allegedly. precipitated an accident. the "substantial factor test." rather than the "but for" test. is used to establish cause-in- fact. 111 Electricity 145 e---195 145 Electricity 1-15k12 Injuries Incident to Production or Use -15k 9 Actions 1 . 4509 . 5 k. Weight and Sufficiency of Evi- dence. Mosicit..sit Cases Evidence was sufficient to establish in widows legal malpractice action against attorneys for allowing cause of action for wrongful death of husband to prescribe that actions by owner of truck stop breach by sign company that employed husband of its duty under the Workers Compensation Law husbands actions and actions by aerial ladders manufacturer were all substantial factors in husbands electrocution: witness testified that if bucket on aerial ladder had been insulated husband would have only suffered a slight shock there was evidence that company failed to place proper significance on adherence to Occupational Safety and Health Administrations OSHA rule requiring persons to maintain a ten-foot clearance from overhead power lines manager of truck stop asked owner to work on pole having sign that violated OSI- IA rule and husband failed to use a safety harness or seat belt. or request that electric company shield lines near pole to make them safe. I 11 - Appeal and Error 30 09993 30 Appeal and Error 30\V1 Review

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30XVI1 Questions of Fact. Verdicts and Find- ings 30XV11112 Verdicts 30k999 Conclusiveness in General 30k990 k. Questions of Fraud or Neg- ligence. Most Cited . Cases 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 Cite as: 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04As with other factual determinations the trier of fact is vested with much discretion in its allocation of fault. and therefore an appellate court should only disturb the trier of facts allocation of fault when it is clearly wrong or manifestly erroneous. 118 Appeal and Error 30 €---9993 30 Appeal and Error 3p:\ y I Review 30XVI1 Questions of Fact. Verdicts and Find- ings 30XVII2 Verdicts 30k999 Conclusiveness in General 30k9993 k. Questions of Fraud or Neg- ligence. Most Cited Cases In testing for manifest error a jurys allocation of fault when more that one action allegedly precipitated an accident Court of Appeal looks to the following factors : 1 whether the conduct resulted from inadvertence or involved an awareness of the danger: 2 how great a risk was created by the conduct 3 the significance of what was sought by the conduct 4 the capacities of the actor. whether superior or inferior and 5 any extenuating circumstances which might require the actor to proceed in haste without proper thought.

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1191 Appeal and Error 30 €.9993 30 Appeal and Error 1NV1 Review 0X V11 Questions of Fact. Verdicts and Find- ings 30XVI12 Verdicts 30099 Conclusiveness in General 30k99 0 3 k. Questions of Fraud or Neg- ligence. Most Cited Cases As evidenced by concepts such as last clear chance. the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties when Court of Appeal tests for manifest error a jurys allocation of fault when more that one action allegedly precipitated an accident. J20 Electricity 145 €17 1 2 15 Electricity 145k 17 k. Companies and Persons Liable. Most Cited Caies Evidence was sufficient to support. in widows legal malpractice action against attorneys for allowing cause of action for wrongful death of husband to prescribe allocation of 20 of fault for electrocution of husband to owner of truck stop whose sign widows husband was repairing. 45 to sign company that employed husband 30 to husbands actions and five percent to aerial ladders manufacturer: there was evidence that husband was an experienced sign worker and was aware of danger posed by overhead power lines that Occupational Safety and Health Administration OSHA held company responsible for violation of ten- foot clearance from overhead line rule that company rather than manufacturer was

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in best position to determine whether it should have used an aerial ladder that had an insulated bucket and that owner of truck stop placed sign close to power line in violation of OSHA rule. I SA-R.S. J21 Judgment 228 €1993.5 228 Judgment 228\il On Trial of Issues 228 VIA Rendition. Form. and Requisites in General 228k109 Notwithstanding Verdict 2281.1993.5 . k. Propriety of Judgment in General. Most Cited Cases Judgment notwithstanding the verdict JNOV is warranted only when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. 1221 Judgment 2281993.6 228 Judgment ___8VI On Trial of Issues 228V1A Rendition Form and Requisites in General 2281.199 Notwithstanding Verdict 22410 0 3.6 k. Where Evidence Is Con- flicting or Where Different Inferences May Be Reasona- bly Drawn Therefrom. Mo 1A .g tca s es A trial court may not grant a judgment notwithstanding the verdict JNOV if

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there is contradictory evidence 896 So.2d 164. 2004-325 La.App. 3 Cir. 1229/04 Cite as: 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. 1231 Judgment 228 €1993.2 228 Judgment 228V1 On Trial of Issues 2 . 2.8 V11 Rendition. Form and Requisites in General 2281:I99 Notwithstanding Verdict 1 28k1993.2 k. Evidence and Inferences That May Be Considered or Drawn. Most Cited Cacs Judgment 228 €---1993.3 228. Judgment 228V1 On Trial of Issues 228V1A Rendition. Form and Requisites in General 2 1 8k199 Notwithstanding Verdict 2281.1990.3 k. Credibility of Witnesses and Weight of Evidence. Most Cited Ca cs The trial court should not evaluate witnesses credibility in deciding whether to grant a judgment notwithstanding the verdict JNOV and it must resolve all inferences or factual questions in favor of the non-moving party.

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1241 Appeal and Error 30 €1463 30 Appeal and Error 30 \ VI Review 30 X VILA Scope Standards and Extent in Gen- eral 30k862 Extent of Review Dependent on Nature of Decision Appealed from 0kS63 k. In General. Most. Cited Case . Court of Appeal reviews a trial courts grant of judgment notwithstanding the verdict JNOV by using the same criterion that governs its decision. 1251 Appeal and Error 30 C863 30 Appeal and Error 30XV1 Review l 30k802 Extent of Review Dependent on Nature of Decision Appealed from 301:803 k. In General. Most Cited Cases In an appeal of a judgment notwithstanding the verdict JNOV if reasonable persons might have reached the same verdict as the jury. Court of Appeal should reinstate its verdict. 1261 Evidence 157 C---- 555.7 15 . 7 Evidence 157 \ 11 Opinion Evidence 57X11I Examination of Experts I 57k555 Basis of Opinion

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1570557 k. Due Care and Proper Conduct. Most Cited Cases Trial court did not abuse its discretion and violate the /./ribcrir /. - .rw tests in widows legal malpractice action against attorneys for allowing cause of action for wrongful death of husband who was electrocuted while repairing signs. to prescribe by allowing widows mechanical engineering and accident reconstruction expert to testify regarding his alternative design to include an electric brake on aerial ladder brakes had been incorporated in similar devices namely cranes manufacturers expert admitted that adding a brake was a feasible design and factual determination of whether the primary purpose of ladder to carry humans rather than cargo. caused adverse effect of a brake in a ladder to outweigh its utility was properly submitted to the jury. 1.S A-C.I . 11211 Evidence 157 €.....2519 157 Evidence 157.\1I Opinion Evidence 1.57 i Subjects of Expert Testimony 157k519 k. Nature Condition and Relation of Objects. Most . Cited Cries Evidence 157 1 €555.7 .117 Evidence 157 \II Opinion Evidence 157X I li . D Examination of Experts 1 .. 5 . 2 . 1s5 . 55 . Basis of Opinion 157055.7 k. Due Care and Proper Conduct. Most Cited Cases 896 So.2d 1642004-325 La.App. 3 Cir. 12/29/04

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Cite as: 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 Evidence 157 e556 . 157 Evidence 157X11 Opinion Evidence 157X1111 Examination of Experts 157k556 k. References to Authorities on Sub- ject. Most Cited Cases Trial court did not abuse its discretion and violate the Dotibert/ / 7. rei tests in widows legal malpractice action against attorneys for allowing cause of action for wrongful death of husband who was electrocuted while repairing signs to prescribe by permitting widows expert a physicist and professional engineer with a specialty in human vision to testify that a person viewing horizontal power lines against a clear sky could not accurately perceive his distance from them because of a principle called stereopsis expert offered an article that had been published on the subject showing that the theory had been tested and discussed the known potential rates of error and testimony was relevant even if it assumed widows husband was looking toward the power lines just before he struck them in the absence of testimony establishing same as testimony shed light on a factual issue. I SA-.I. art. 702. 1281 Appeal and Error 30 €---9841 ‘..t Appeal and Error 30XV1 Review 30N . Y1 . 11 Discretion of Lower Court 30k984 Costs and Allowances 30k084 . I k. In General. Most . Cited Cases

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Costs 102 €12 102 Costs 1021 Nature Grounds and Extent of Right in General 102k1 I Discretion of Court 102k 12 k. In General. Most Cited Cases The trial court has broad discretion to award and assess costs and Court of Appeal will not disturb its ruling absent an abuse of discretion. 1291 . Costs 102 €3187 102 Costs 102V11 Amount Rate and Items 1 Qzjiit3 183 Witnesses Fees 102k187 k. Experts. Most Cited Cases The degree to which the experts opinion aided the court in its decision is one of the factors to consider when assessing costs of an expert witnesss fee. 1301 Attorney and Client 45 C1294 45 Attorney and Client 15111 Duties and Liabilities of Attorney to Client 451.1:.0 Actions for Negligence or Wrongful Acts 45k1290 k. Damages and Costs. Mosi Cases Trial court did not abuse its discretion in widows legal malpractice action against attorneys for allowing cause of action for wrongful death of husband. who was electrocuted while repairing signs. to prescribe. by awarding widow fees she incurred for testimony by mechanical / engineering and accident

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reconstruction expert and by i‘ engineer with a specialty in human vision since experts testimony was admissible. J311 Damages 115 C--- 60 . 111 Damages I 15111 Grounds and Subjects of Compensatory Dam- ages I I 5111 . 13 Aggravation Mitigation and Reduction of Loss k. Benefits Incident to Injury. Most Cited . ases If a plaintiff receives benefits from a source independent of the tortfeasor the benefits inure to the plaintiff not to the tortfeasor and if the independent source does not intervene to recoup the benefits it already paid. the plaintiff may recover the same amount of the benefits from the tortfeasor. 1321 Workers Compensation 413 €---2243 413 Workers Compensation .413 XX Effect of Act on Other Statutory or Common-Law Rights of Action and Defenses 413X \K. Action Against Third Persons in General for Employees Injury or Death 413 X . 0 t6 Amount and Items of Recovery 11312243 k. Action by Employee Dependents or Personal Representative. Most Cited Cases 96 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 Cite as: 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 Under collateral source rule widow in her legal malpractice action against attorneys

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for allowing cause of action for wrongful death of husband to prescribe could recover medical and funeral expenses which husbands workers compensation carrier had already paid though attorneys were not the tortfeasors in the underlying suit because the two liable tortfeasors in the underlying action could not under the collateral source rule benefit from carriers payment neither could attorneys. 1.33 Attorney and Client 45 4 112 45 Attorney and Client 45111 Duties and Liabilities of Attorney to Client 45k112 k. Conduct of Litigation. Most itcd Cases Death 117 €---- 318 117 Death 17111 Actions for Causing Death I I 7 111A Right of Action and Defenses 117131 Persons Entitled to Sue 1171018 k. Child or Grandchild. Most Cited Caws Child who was not a biological child of widows electrocuted husband could not recover wrongful death and survivor benefits in widows legal malpractice action brought on behalf of herself and her children against attorneys for allowing cause of action for wrongful death of husband to prescribe despite husbands signature on childs birth certificate and his execution of an Act of Acknowledgment of Paternity Acknowledgment was a nullity when both the child and the widow admitted husband had no biological relationship to the child. 1.S.A-C .0arts. 71 5.1.2 3 1s 2 J34 Attorney and Client 45 €--- 2 1294

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45 Attorney and Client 4511 Duties and Liabilities of Attorney to Client 5k129 Actions for Negligence or Wrongful Acts 45k 1 . 291 k. Damages and Costs. Mos Cases Death 117 €9.51 . 117 Death 117111 Actions for Causing Death 11711111 Damages or Compensation 1 . 171.94 Measure and Amount Awarded 117k95 In General 1171.9SW k. In General. N10 4 Cited Cases Death 117 C-- 1 952 117 Death 1 171 . 11 Actions for Causing Death 11711111 Damages or Compensation 117104 Measure and Amount Awarded 117k95 In General 117052 k. Prospective Earnings and Accumulations of Deceased. Most 1ted Cases Evidence was sufficient to establish award of 350.000 for past wages and loss of earning capacity of husband who was electrocuted while repairing signs upon widows wrongful death cause of action although figure did not match that calculated by experts since jury was permitted to substitute common sense and judgment for that of an expert witness when such substitution appeared warranted on the record as

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a whole thus award of such amount was proper in widows legal malpractice action against attorneys for allowing her wrongful death claim to prescribe. Lit Evidence 157 € . 570 151 Evidence 15.711 Opinion Evidence 57X110 . Effect of Opinion Evidence 157k50 . 9 Testimony of Experts 1511.570 k. In General. Moq Cited Case Trial 388 €—1401 38X Trial 388VIFakini. Case or Question from Jury : 88V1LA Questions of Law or of Fact in General 388kI40 Credibility of Witnesses 388k140t . 1 . t k. In General. Most lied Case5 Credibility determinations are for the trier of fact even as to the evaluation of expert witness testimony. 1361 Evidence 157 €.---570 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 Cite as: 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 157 Evidence 157X11 Opinion Evidence 157X11I" Effect of Opinion Evidence 157k56 Testimony of Experts

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j.57070 k. In General. Most Cited Caves A fact-finder may accept or reject the opinion expressed by an expert in whole or in part. 1371 Appeal and Error 30 €— 10045 30 Appeal and Error 30XV1 Review 30X V11 Questions of Fact Verdicts and Find- ings 30NVI1 Verdicts 30k1004 Amount of Recovery 301.100-15 k. Mistake. Passion or Preju- dice Shocking Conscience or Sense of Justice. Most Cited Cases Damages 115 1 I 5 Damages 115V1 Measure of Damages I 15 VIA Injuries to the Person 115k96 k. Discretion as to Amount of Damages. Most Cited Cases Damages 115 €:104 1 . I 5 Damages H 5V I Measure of Damages 115V1t13 Injuries to Property 115k 104 k. Discretion as to Amount of Dam- ages. Most Cited Cases

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Damages 115 € 7 119 115 Damages I I 5V1 Measure of Damages 11.5 VIR Breach of Contract 1 1 . 5k11 9 k. Discretion as to Amount of Dam- ages. Most Cited Cases A jury has vast discretion in assessing damages. and Court of Appeal may find that it abused this discretion. only if its award is so low in proportion to the injury that it shocks Courts conscience. J38i . Attorney and Client 45 Ce•—1294 4 . 5 . Attorney and Client -15111 Duties and Liabilities of Attorney to Client 45k . 1_2 Actions for Negligence or Wrongful Acts 45k1 294 k. Damages and Costs. Most c:Jted clit. es Death 117 e---98 117 Death .44 . 741.1 Actions for Causing Death I 1 . 7101 Damages or Compensation 117.k94 Measure and Amount Awarded k. Inadequate Damages. Mos Award of 10.000 for husbands pre-death pain and suffering was so low in proportion to the injury that it shocked the conscience and award of 75000 was the lowest reasonable amount that could be awarded for wrongful death of husband who was electrocuted while repairing signs. in view of evidence that husband was conscious for some amount of time after contacting overhead power lines while

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working on aerial ladder and being thrown to the ground with smoke coming off his shirt: thus award of 75000 was proper in widows legal malpractice action against attorneys for allowing her wrongful death claim to prescribe. 1391 Damages 115 €—140.7 I_I5 Damages 1 ISVII Amount Awarded l5V1 Mental Suffering and Emotional Dis- tress 115k140.7 k. Particular Cases. Mos Cited Cases Formerly 115k140.5 Award of 30000.00 for mental anguish arising from attorneys malpractice was not abusively low in widows legal malpractice action against attorneys for allowing cause of action for wrongful death of husband who was electrocuted while repairing signs to prescribe. 170 Lam Lane Roy Preis Kraft Roy Lafayette. Louisiana for Defendant/Appellant. James Daniels. Ringuet. Daniels Collier. 96 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 Cite as: 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 Gus A. Fritchie Irwin Fritchie Urquhart Moore. New Orleans Louisiana for Defendant/Appellant. Lawrence D. Wiedemann. Wiedemann Wiedemann. Gregory Paul Allen Marceam Marceaux Law Firm. Bilk F. Loftin Jr. Lake Charles Louisiana. for Plain-tiff/Appellant. Julie Guidry:. James Huey Gibson Allen Gooch Lafayette Louisiana for

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Defendant/Appellant Coregis Ins. Co. Court composed of Chief Judge 1 - 111BODFAUX. 1111.1.11: COLONMARO WOODARD. and OSWALD A. IMCl.i1R Judges. l WOODARD Judge. Both the Plaintiffs and Defendants appeal the trial courts judgment in this legal malpractice suit. We reverse the damages awarded to Randi Guidry because she is not a proper party to recover wrongful death or survival damages. We vacate the trial courts JNOV. reinstate the jurys verdict amend its judgment to increase the quantum of damages for pain and suffering and render. This appeal arises from Ms. Julie Guidrys legal malpractice claim against two attorneys Mr. James L. Daniels and Mr. Lawrence D. Wiedemann for allowing her potential cause of action for the wrongful death of her husband Melvin Guidry to prescribe. The underlying action arose when her husband died after being electro- cuted in the course and scope of his employment as a billboard and sign repairman for Signko Inc. Signko. On June 23 1997 Signko sent him to the Lucky Longhorn Truckstop Lucky to repair a "Chevron" sign. After he arrived Luckys manager. Mr. James William Hayes. asked him to work on some of the other signs. as well. To access them Melvin utilized a Sponco SL-55 aerial lad- der. a ladder attached to a truck that has a bucket at the end to hold the operator. While working on the signs he contacted with some overhead power lines electrocuting him and throwing him to the ground. He died from the injuries a few hours after the accident. Julie retained Mr. Daniels to pursue her claims for his death. Daniels referred her case to Mr. Wiedemann. retaining an interest in any potential recovery. However neither attorney filed her suit within one year of Melvins death allowing her claim to prescribe. Consequently she

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tiled a legal malpractice action against the two attorneys. on her own behalf and on behalf of her two daughters both minors at the time she filed suit. She alleged that the attorneys negligence prevented her from recovering against several defendants who shared responsibility for her husbands death. She also prayed for damages associated with the legal malpractice. 171 Lu Aside from distress resulting from the legal malpractice. itself the plaintiffs damages in a legal malpractice suit are determined by the damages if any they 2 would have received had they prevailed in the under- lying lawsuit.Accordingly in order to determine whether the attorneys malpractice caused her and her daughters any damages the jury had to determine whether and how much they would have recovered in the underlying suit" - Essentially. the jury in the legal malpractice suit had to "engage in a pretend exercise of measuring damages based on events that never in reality occurred or can occur" I- - because the malpractice foreclosed their opportunity to pursue their underlying claims against the actual persons allegedly responsible for Melvins death. I NI. Jeukins r. Sr. hre• lirc • 422 So.2d 1109 I.a.1982. FN2. Id. SHIllit r. Shift .010 4il 1101//11 95-38 CI .a.6l25/96. 676 So.2d 543. 551 n. 9 FN4„Sinidt 676 So.2d 541 The attorneys asserted that they would not have recovered any damages in the underlying suit because Melvin and his employer were solely at fault for the accident: any damage awards would have been reduced by his

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own comparative negligence.Additionally because the Louisiana Workers Compensation Act is the exclusive remedy for any potential claims against Melvins employer Signko the Plaintiffs could not have recovered the damages associated with Signkos fault in the underlying wrongful death action. Rather the Office of Workers Compensation has jurisdiction over the Plaintiffs potential claim against Signko. Furthermore in the instant case the Plaintiffs reached a settlement with Signko under the workers compensation laws while their suit against the two attorneys was pending in the trial court. FIN15. See La.Civ.Code art. 2R3A. 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 Cite as: 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 lNo. See La.R.S. 23:1W2. Notwithstanding the Plaintiffs inability to recover from Signko in their underlying wrongful death action Louisianas comparative fault law would have required a jury in such an action to consider Signkos fault. if a jury had allocated 100 of the fault to Melvin and/or to his employer the Plaintiffs ultimate recovery would have been zero. Therefbre. the jury had to assess the fault 3 of Melvin and his employer as well as the fault of any potential defendants in the underlying case. Sponco Manufacturing Kojis Sons. Inc. Enter:4y Signko Inc. Melvin Guidry..1r. Lucky Longhorn Truck Stop

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The trial court granted Plaintiffs a Judgment Notwithstanding the Verdict JNOV reallocating Signkos fault percentage to Sponco resulting in a 50 fault allocation to it and no fault to Signko. The jury assessed Julies damages in the underlying lawsuit at 750000.00 her daughter Randis damages at 70000.00 and her daughter. Marys damages at 250000.00. Additionally it found that the Plaintiffs were entitled to 10000.00 172 far Melvins pre-death pain and suffering and 30000.00 for their own mental distress associated with the Defendants legal malpractice. Finally the jury found that the two attorneys. Mr. Daniels and Mr. Wiedemann were equally responsible and assessed each with 50 of the fault. Both the Plaintiffs and the Defendants appeal from the trial courts judgment. The Defendants allege multiple assignments of error. Concerning the fault allocation they argue that the jury erred in allocating any fault to Lucky Longhorn or to Sponco and that it should have allocated all or substantially more fault to Melvin. They also assert that the trial court erred in granting the JNOV. 114. Additionally the Defendants urge that the trial court committed evidentiary errors in admitting certain testimony that Plaintiffs expert witnesses Stephen 4 Kill- 1-N7. See La.Civ.Code art. 2323. The Plaintiffs maintain that the potential defendants in the underlying case were Sponco Manufactur-ing/Phoenix Sales Sponco the ladders manufacturer: Kojis Sons the company that sold the ladder to Signko: Lucky Longhorn Truck Stop. the accident site: and En-tergy the custodian of the power lines. The jury allocated fault as follows:

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540 0 0 4.5"/0 30 20 ingsworth and James Sobek rendered thus they should not have to pay these two experts witness fees. They also claim the trial court erred in allowing Plaintiffs to recover medical and funeral expenses and in permitting Randi Guidry to recover any damages. The Plaintiffs appeal the judgment. urging us to increase the amount of damages awarded for loss of support. pre-death pain and suffering and mental distress resulting from the malpractice. ELEMENTS OF LEGAL MALPRACTICE CLAIM Lin A legal malpractice plaintiff must establish a prima facie case by showing that she and the attorney had an attorney-client relationship and that her attorney was negligent.In the instant case the two attorneys admit these two elements establishing the Plaintiffs primajiicic case. Accordingly the burden of production shifts to the Defendant attorneys charging them to provide evidence sufficient to prove the Plaintiffs would not have prevailed on the underlying claim. The admittedly unnatural re- sult is that the Defendant attorneys must advocate a position in extreme contrast to the position they previously agreed to advocate on their clients behalf. However the rule is

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justified because we must infer that their negligence caused the Plaintiffs some loss given the unlikelihood that they would have agreed to handle the claim unless it had some merit. ` "Otherwise there is an un- 896 So.2d 164. 2004-325 La.App. 3 Cir. 12/29/04 Cite as: 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 due burden on an aggrieved client. who can prove negligence and causation of some damages when he has been relegated to seeking relief by the only remedy available after his attorneys negligence precluded relief by means of the original claim." s FN8../enkiffs. 422 So.2d 1109. FN9. EN10. Id. FN I 1 Id. at I I 10. STANDARD OF REVIEW The Defendants first two assignments of error involve liability determinations one based on the duty-risk analysis and the other based on 5 Louisiana Products Liability law. These determinations involve questions of both law and fact. The remaining alleged errors which concern fault allocation admissibility of certain testimony that expert witnesses gave and awards of damages and costs are all subject to the manifest error standard. FN 12. . lenientrrey_. 95- I I 1911.a. I 16 Q6 666 Se 2d . _ 607: Your v. Ilariiimc Over\eas - tolp„ . 623 So.2d 1257 1.t. I993 Shire 03-680 IAL 12 303. Md so2d 536.

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SPONCOS FAULT The Defendants assert that the jury erred in finding Sponco liable for Melvins 173 death. Again they had the burden of proving that the Plaintiffs could not have prevailed against Sponco. Sponco is the manufacturer of the aerial ladder Melvin utilized when working on Luckys signs. The Louisiana Products Liability Act LPLA establishes the exclusive theories for holding a manufacturer liable for damages their products cause.It requires that: 1 a characteristic of the manufacturers product renders it unreasonably dangerous 2 the unreasonably dangerous characteristic proximately caused the Plaintiffs damages and 3 the damages arose when employing the product in a reasonably anticipated use. \ The LPLA enumerates limited means of demonstrating an unreasonably dangerous characteristic. Namely a plaintiff must prove the product had inadequate warnings failed to conform to the manufacturers express warranties or that the dangerous characteristic is inherent in the products design construction or composition.Thus we turn first to a review of evidence concerning any unreasonably dangerous characteristics. I. N13. L A.It.S. 9:2800.52. FN 14. I a.R.S. 9:2800.5-1A. I N15. 9:2800.54B. Inadequate Warnings The Defendants presented evidence of adequate warnings. Specifically Mr. Harold Sader Sponcos President testified that the manuals delivered to every customer as well as the warning decals on the equipment. itself admonish 6 operators that the equipment is not to be used within ten feet of energized power

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lines. Mr. Brooks and Mr. Brady Kojis a co-owner of Signko. verified his testimony. Failure to Cantor to Express Warranties Neither party presented evidence of any express warranties. Consequently. there was no evidence of failure to conform to any. Dangerous in Design The LPLA requires several elements to show that a product is unreasonably dangerous in design. First it requires that an alternative design existed when the manufacturer relinquished control of the product and that the alternative had the capacity to prevent the plaintiffs damages. " 1 " Additionally. it requires that "Ole likelihood that the products design would cause the claimants damage and the gravity of that damage outweighed the burden on the manufacturer of adopting such alternative design and the adverse effect if any of such alternative design on the utility of the product." 1 ": 1:T\116. La.R.S. 9:2801.561. IN I 7. La.R.S. 0:2800.562. Furthermore once these requirements are met the manufacturer can still absolve itself of liability by showing that "it did not know and in light of then- existing reasonably available scientific and technological knowledge could not have known" either of the dangerous characteristic or of the alternative design.Alterna- tively it can show that "in light of then-existin4 reasonably available scientific and technological knowledge." the 896 So.2d 164 2004-325 La.App. 3 Cir. 1229/04

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Cite as: 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 alternative design was not feasible or economically prac-tical. 1 7 N118. La.R.S. 9:2800.59A A2. lN19. La.R.S. 92800._`•9A3. The Defendants presented evidence that the ladders design was not unreasonably dangerous. Specifically Sponcos President testified that three manufacturers essentially dominated the manufacture of 174 these ladders and that all had substantially the same design which had not changed in the last 20 years. The 7 Plaintiffs countered with three alternative designs allegedly capable of preventing Melvins accident. Mr. Stephen Killingsworth. Plaintiffs expert witness in mechanical engineering and accident reconstruction first proposed a design which included an electric brake. While he admitted that he developed this alternative design only a couple of weeks before trial he asserted that similar devices such as cranes employed an electric brake at the time of the SL-55 ladders manufacture. Consequently he urges that his design simply applies mechanical engineering principles that did exist at that time. LA The Defendants refute his contention that his alternative design existed at the time of manufacture urging that the LPLA requires that the design exist for the particular product in question: its existence for similar products is insufficient. Furthermore they point out that even accepting the trial courts characterization that his design is not new but rather "an adaptation of an existing mode of addressing good mechanical forces that was in existence at the time of 1991" cranes are sufficiently distinguishable from aerial ladders because cranes lift or transport cargo rather than people. Mr. Killingsworth testified that some cranes have a basket that can be put on them for people to use. However he did not deny that cranes primarily carry cargo while aerial ladders primarily carry people.

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This is a crucial factor absent in the design of cranes that manufacturers must consider when designing aerial ladders. Not only does it demonstrate the flaws in Mr. Killingsworths argument that his design for this particular ladder existed at the time of manufacture it is also of dire importance in the risk/utility analysis as we detail below. Risk-Utilitl• 4nult•sis Mr. Killingsworth testified that the coast and drift on the SL-55 made it unreasonably dangerous and that the proposed brake would allow the operator to stop the ladder immediately. eliminating any coast or drift. He described "coast" as "when you turn the power off it takes time for this electric motor to wind down which means when I flip the switch on it and I swing horizontally this ladder over I cant stop that ladder immediately. It is going to coast coast to a stop." and "drift" as "the play that weve got in it the gearing so that when this unit is finally 8 stopped in other words it is coasting and it stops when I have a mass on the end of it. that ladder can still drift over and move because the mass on the end of it is still moving." The Defendants experts gave similar descriptions of coast and drift although they explained that both occur simultaneously rather than consecutively as Mr. Killingsworth intimated. Mr. Killingsworth alleges that an electric brake would prevent coast and drill and. instead would produce an instantaneous stop. The Defendants had a burden of proving that his design did not pass the risk- utility test: namely that its adverse effects outweighed the likelihood that the products actual design which allowed coasting and drifting would have caused Melvins electrocution:in other words. that the risk which an electric brake would create for aerial ladder operators. far outweighed the risk that coasting or drifting of the ladder creates. FN20. La.R.S. 92800.562.

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Both Mr. Faddis a mechanical engineering expert. and Mr. Sader testified that by 175 design the ladder nts/ have coast and drift. Mr. Sader said that "the stop- ping of a unit has to be cushioned in some fashion." Otherwise. "the operator out there would probably be whipped around pretty severely." Mr. Faddis stated Illy design anything that you start and stop you have to build in some kind of coasting by design .... it just simply makes sure that there are not any violent motions put on an operator that is out at the end of the thing." Furthermore. Mr. Killingsworth admitted that an immediate stop could make the bucket swing over. Thus by Mr. Killingsworths own admission the likelihood that "coasting and drifting" would create an inability to avoid dangers such as power lines does not outweigh the adverse effect of his design which would place the operator in danger in every instance he operated the ladder as opposed to the current design placing the operator in danger only when its operation is coupled with being close to some external dangerous condition. C. 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 Cite as: 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 Accordingly the Defendants presented sufficient evidence to prove that the Plaintiffs would not have prevailed against Sponco on this particular issue. Mr. Killingsworth proposed a second alternative design using proximity warning devices. Electrical fields trigger alarms on such devices and they existed at the time of the ladders manufacture. In fact Sponco informed purchasers of their existence and availability and left the decision up to them. However both 9 Mr. Sader and Dr. John Darrell Morgan. an expert in electrical engineering and accident reconstruction within the electrical engineering field testified that

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these devices were unreliable. Moreover Dr. Morgan testified that because the devices operate by using magnetic fields any interference within the magnetic field may distort the devices ability to detect the danger at the appropriate proximity. Additionally he testified that there are many factors which can interfere with the magnetic field. Thus such devices actually provided an added danger by creating a false sense of security for the operator. Accordingly the Defendants proved that the absence of proximity warning devices did not constitute a design defect. Finally the Plaintiffs presented an alternative design which insulated the ladders bucket with fiberglass. This design existed at the time of the ladders manufacture. In fact Sponco manufactured another ladder at that lime which incorporated the design. Sponcos 111 insulated hydraulic series of ladders had insulated buckets. This proves that such a design was feasible and that Sponco knew of it. Furthermore testimony revealed that this design had the capacity to prevent Melvins accident. Specifically. Mr. Brooks testified that if the bucket were insulated Melvin would have suffered only a light shock even if his body made contact with the power lines. Furthermore the Defendants presented no evidence of adverse effects of insulation on the ladders utility nor did they provide evidence of any burden other than higher costs that Sponco would have incurred by incorporating the design. Accordingly the jury could have found that the Defendants failed to carry their burden of proving that the Plaintiffs would not have recovered against Sponco on this design defect claim. Dangerous in Construction or Composition "illf at the time the product left its manufacturers control the product deviated in a material way from the manufacturers

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specifications or performance standards for the product or from otherwise identical products manufactured by the 176 same manufacturer." it is unreasonably dangerous in construction or composition. ItN2 I. ALIO. 9:2800.55. 10 Plaintiffs offered the testimony of Mr. Hayes who stated when watching Melvin work on the signs prior to the accident he observed the ladder coast to be three to four feet. Further Mr. Kent Langley. a Signko employee who retrieved the ladder from the accident site testified that he tested it and found it to be working properly. However he also said that while the normal coast and drift of the ladder was one to two feet. it could he up to four feet. depending on how far the ladder was extended. The Plaintiffs elicited testimony from Mr. Sader. agreeing that four feet of coast would be excessive. even though Sponco has no standards delineating the amount of coast considered acceptable. Nonetheless the detect in construction or composition must have existed at the time the ladder left Sponcos control. Mr. Kent Johnson stated that he had done all the maintenance on this particular ladder when Kojis 81. Sons owned it. He serviced and inspected it on a weekly basis. When Signko bought it. he instructed Kent Langley regarding general maintenance. Thus there is no evidence of a defect in construction or composition at the time Sponco relinquished custody of the ladder. However. Mr. Killingsworth testified the ladder had the capacity to coast and drift this far when it left the manufacturer because of its design and that the arrangement of the gear box allowed it to loosen progressively with each use which in turn created more and more drift. He presented a couple of ways to decrease the drift but not the coast. In order to eliminate both coast and drift he offered the alternative design of an electric brake. which we have already

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determined to be an unacceptable alternative design. Accordingly we have found one theory which provides a reasonable basis for the jurys determination that the ladder had an unreasonably danuerous characteristic: namely that the ladder was unreasonably dangerous in design because it was not insulated. CD 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 896 So.2d 1642004-325 La.App. 3 Cir. 12/29/04 Cite as: 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 We turn to the second prong of the analysis proximate cause. Proximate Cause Mr. Brooks testified that if the bucket were insulated. Melvin would have suffered only a light shock. even if his body made contact with the power lines. 11 Accordingly but for the failure to insulate the bucket Melvin would not have been electrocuted. Intended Use The last prong of the analysis is that the damages must arise while employing the product in a reasonably anticipated use. Mr. Johnson testified that these types of aerial ladders dominate the sign industry. While Mr. Sader maintained that their use was broader he acknowledged that they were commonly used in the sign industry. Additionally there was no evidence that Melvin was operating the ladder in an inappropriate manner. Thus we have identified a theory which provided the jury with a reasonable basis for finding liability on Sponcos part. MELVIN GUIDRYS FAULT

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Mr. Calvin Peco. who had stopped at Luckys because his car was overheating was the only person to see Melvin make contact with the power lines. Mr. Peco pulled his car into the parking lot to allow it to cool down and watched Melvin as he worked on the sign. Melvin brought the ladder down and both went into the store to purchase a drink and made small talk 177 on their way out. Mr. Peco returned to his vehicle. Melvin returned to working on the signs. Mr. Peco testified that he looked up just in time to see Melvin contact the power lines electrocuting him and throwing him to the ground just behind Mr. Pecos car. Mr. Peco stated that the power lines struck Melvin around his right shoulder and neck area. The expert physicians testified that it was impossible to conclusively determine Melvins entry and exit wounds. In other words they could not determine which part of his body first made contact with the lines. Thus. we do not have any evidence as to which way Melvin was looking when he struck the power lines. However Mr. Peco testified that Melvin was not wearing any kind of body harness or safety belt. Further- more. the Occupational Safety and Hazards Administration OSHA mandates that persons unless specially licensed to work on power lines maintain a ten foot distance from power lines. Both Plaintiffs and Defendants experts confirmed that if Melvin had observed OSIIAs safety rule. 12 the accident would not have occurred. Melvin also had the responsibility of surveying the site before beginning the work to determine any potential hazards and to call Entergy to shield the lines. LUCKY LONGHORNS LIABILITY The Defendants assert that the jury erred in finding Lucky liable for Melvins death. As we explained above. they had the burden of proving that the Plaintiffs

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could not have prevailed against Lucky. 1110 In Louisiana. we employ a duty-risk analysis to determine whether a party is liable for its negligence given the particular facts of the case.The analysis consists of four elements: namely whether the defendant owed the plaintiff a duty of care and if so whether that duty encompassed the particular risk of harm the plaintiff suffered whether the defendant breached that duty: and if so whether the breach was a cause-in-fact of the plaintiffs injuries. FN22. :Vanning r 070 StoresQ9-117 .a. 12 10 091 753 So.2d 163. I- Cormier v. .•I//yar. 94-12.06 0.1. App. . Cir. 2-2:001 758 So.21250. Dilly 1711 . .sj "Generally. the owner or operator of a facility. has the duty of exercising reasonable care for the safety of persons on his premises and the duty of not exposing such persons to unreasonable risks of injury or harm. In the instant case Lucky owned the property including the signs and its operator Mr. Hayes. requested that Melvin do additional work once he arrived on Luckys premises. Lucky and Mr. Hayes had a duty of not exposing Melvin to unreasonable risks of harm. FN24. itanniqu 753 So.2d at 165. Breach 9J The jury could have reasonably found that the placement of the signs in such close proximity to the power lines constituted a breach of that duty.

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However the Defendant attorneys introduced evidence that Lucky 896 So.2d 164. 2004-325 La.App. 3 Cir. 12/29/04 Cite as: 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 complied with OSHAs regulations. placing the billboards a sufficient distance away from the power lines. 13 Mr. Frederick Brooks Defendants expert in electrical engi- neering as well as in the National Electric Safety Code and OSHA regulations testified that OSHA regulations at the time of the accident required a horizontal distance of 7 1/2 feet 178 from power lines and Luckys closest sign provided an 8 1/2 feet clearance. Further OSHA required a diagonal clearance of 8 foot and the diagonal distance of Luckys closest sign was 9.24 feet. While Lucky placed the signs themselves a sufficient distance from the power lines under OSHA the jury could have found the proximity of the signs to the power lines created an unreasonable risk of harm. Specifically OSHA also requires persons to maintain a ten-foot clearance from overhead power lines. Even though Lucky posi- tioned the signs within acceptable horizontal and diagonal distances under OSHAs rules. their proximity to the power lines made it impossible to work on one of the signs without violating OSHAs ten-foot rule. Thus once Lucky asked Melvin to work on the signs it created an unreasonable danger for him because he could not work on all of them without violating OSHAs rule. Scope . Duo L10 We must now address whether the risk of Melvins injuries were within the contemplation of Luckys duty. "ITThe scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty. - We must examine how easily we can associate his injuries with Luckys conduct. ‘ FN25. Roberts v. Benoit 605 So.2d 1032. 1044 0.a.199L.

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l N26 Id. Mr. Brooks admitted that the signs placement made it impossible for an individual to work on the west side of one of the signs without violating OSHAs ten- foot rule. Moreover Lucky knew or should have known of the close proximity because the power lines were already in position when Lucky installed the signs. Furthermore because Lucky was aware that these signs would require periodic maintenance it should have foreseen the risk created by placing the signs in such close proximity to the power lines. Accordingly. Luckys duty encompassed the 14 particular risk that someone performing maintenance work on the signs could come into contact with the power line. Causation And finally the jury could have found that but for the signs proximity to the power lines Melvin would have avoided electrocution. Additionally but for Mr. Hayes request that he perform this additional work after he arrived on the premises to work on another sign he would not have been working on this particular pole. And while testimony did not prove that Melvin was working on the particular sign that necessitated an OSHA violation three signs. including that one were located on the same pole and Mr. Hayes had asked Melvin to work on any or all of the three that needed attention. Thus the jury could have reasonably found that the Defendants failed to meet their burden of producing evidence sufficient to prove that the Plaintiffs could not have prevailed against Lucky. S1CNKOS FAULT Because the trial court reallocated all of the fault that the _jury assigned Signko we review whether the jury could have reasonably determined that it was at fault. Determining its fault also requires a review of the duty-risk analysis.

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Duit . Louisiana Workers Compensation Law requires employers to do everything reasonably necessary to protect the life : _ health safety and welfare of its employ- ees.179This includes providing proper safety de- vices and safeguards to render the employment safe considering the normal hazards of such employment. " La.RS. 21:13. FN28„ hl. Scope 2 . 1 "15 Mr. Kojis own testimony revealed that Signko knew power lines posed a normal hazard to its employees. He testified that it was a frequent topic of conversation among them. Thus Signkos duty to Melvin certainly encompassed the particular risk of injury by a power line. Breach LIA While Mr. Kojis testified that Signko employed a ten-foot rule for installations of new signs. he never 96 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 Cite as: 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04

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explicitly addressed maintenance of existing signs. Furthermore he did not describe the ten-foot requirement as a safety rule rather he said Entergy would require them to relocate the signs if they did not abide by the rule. He did not even know that OSHA had a ten-foot rule but thought OSHA required only a seven foot clearance. And despite Signkos duty to provide proper safeguards to ensure that Melvins work environment would be safe it provided him with an uninsulated ladder even though insulated ones were available. Thus the jury could have reasonably found that Signko breached its duty to Melvin by failing to provide him with an insulated ladder as well as by its failure to know and therefore stress the importance of safety rules. Causation Certainly Melvins accident would not have Ilap-pened but for Signkos failure to provide him with an insulated ladder as well as Melvins failure to place proper significance on adherence to OSHAs safety rules. CAUSATION-SUBSTANTIAL FACTOR TEST 1I4 Cause-in-fact is one of the essential elements of the Plaintiffs claim." It is usually determined by using a "but for" test. In other words. if the plaintiff would not have been injured "but for" the defendants conduct. the cause-in-fact component is met. \ EN29. Perkins v. buer v 00-372 La.3/23/0 782 So.2d 606. FN30. BnyAin r. Louisiana Transit Co.. 96-1932 a.3/4 981707 So. 1 d 1 1 5. 15 In the above analyses we have reviewed the "but-for" causation of the cause-in-fact inquiries. However when there is more than one action that. 16 allegedly precipitated an accident our courts have fashioned a method that is more effective than the "but for" test in establishing cause-in-fact. l " This method is often referred to as the "substantial factor test."

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EN31. Perkins. 782 So.2d 606. Id. 1_16j We find a reasonable basis for the jurys determinations that Luckys actions Melvins actions Signkos actions and Sponcos failure to incorporate an insulated bucket into the ladders design were all substantial factors in Melvins accident. Specifically Lucky placed the signs in a dangerously close proximity to the power lines: Luckys operator asked Melvin to work on those particular signs after he arrived on site: Melvin violated OSHAs ten-foot rule and failed to use a safety harness or seat belt. or request that Entergy shield the lines to make them safe: OSHA held Signko responsible for Melvins180 OSHA violation and Signko provided Melvin with an uninsu-lated ladder to perform his job despite the availability of insulated ones: and finally Sponco manufactured an un-insulated ladder even though. as its president admitted. aerial ladders dominate the sign industry and are. therefore likely to be operated at heights equivalent to power lines. FAULT ALLOCATION 1 718_09j Allocating fault requires factual determinations. "As with other factual determinations. the trier of fact is vested with much discretion in its allocation of fault. Therefore an appellate court should only disturb the trier of faces allocation of fault when it is clearly wrong or manifestly erroneous."In testing the jurys alloca- tion for manifest error we look to the same factors that guided its determination. Our supreme court enumerated these factors in Watson v. State Farm Fire and Casualty Insurance Company: I I N Duncan v. Kansas City S. RI.. Co. 00-66 pp. 10-11 1.a.10 . 30:00 773 Soy 1/d WO. 680 citations omitted. N34.469 So.2d 967974 L...._ 1985J.

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I whether the conduct resulted from inadvertence or involved an awareness of the danger 17 2 how great a risk was created by the conduct 3 the significance of what was sought by the conduct. 4 the capacities of the actor whether superior or inferior. and 5 any extenuating circumstances which might require the actor to proceed in haste. without proper thought. And of course as evidenced by concepts such as last clear chance the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties. 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 Cite as: 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 1_20j The jury assessed the majority of the fault to Melvin and his employer. Signko. It allocated twenty percent to Lucky and a mere five percent to Sponco. Melvin was a very experienced sign worker. In fact Mr. Kojis testified that he was one of the most experienced at Signko. Melvin had ample experience with this particular ladder. In his deposition Mr. Hayes admitted that Melvin mentioned to him that he was going to have to be careful of those power lines. Thus Melvin demonstrated an awareness of the danger. The risk created by violating the 10-foot rule was grave and in fact proved to be fatal. Mr. Langley testified that Melvin knew of the ten-foot rule and that he also knew that he had the option of calling Entergy to come shield the lines. In fact. Mr. 13rooks said that OSHA required him to contact Entergy. Additionally Melvin was in a superior position to the other parties in his ability to avoid the accident and certainly only he. had the last clear chance to avoid electrocution. Further. OSHA held Signko responsible for Melvins violation. Moreover. Mr. Brooks confirmed that "the responsibility for OSHA Regulations or workplace safety regulations lie

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with the employer the person that is sending people out on the job and also the employees both. - Again Signko was aware of the danger power lines presented to the employees yet it was uncertain of the clearance distance that OSHA required. It also ascribed its internal ten-foot installation rule to efficiency. more so than safety Mr. Kojis stated that Entergy would require them to relocate the signs if they did not abide by the rule. And Signko provided Melvin 181 with an uninsulated ladder even though insulated ones were available. The jury assessed Sponco with only five percent of the fault for Melvins accident. Sponco manufactured both insulated and uninsulated ladders since around 1980. Mr. Sader testified that while the SL-55 ladders were used in the 18 sign industry their potential uses were much broader. The jury could have found that Sponcos customer is in the best position to know its own needs because only the customer knows the environment and circumstances under which it intends to operate the equipment. Accordingly the customer is in the best position to know how often external dangers. such as power lines will pose a threat. And again in the instant case Mr. Kojis testimony that it was a frequent topic of conversation demonstrates Signkos awareness that power lines presented a significant risk to its employees given the type of work Signko does. Thus the jury could have found that Signko was in a superior position to know the type of equipment Melvin needed to do his job safely and therefore should bear the majority of the responsibility for the fact that Melvins ladder was uninsulated. Ultimately Signko had the responsibility to provide Melvin with the proper equipment. Further Sponco provided manuals and decals on the ladder which warned that it was not to be used within ten feet of energized power lines. And finally the jury assessed twenty percent of the fault to Lucky. We find no manifest error in this determination. Lucky placed the signs in a proximity to the power lines that required Melvin to violate OSHAs ten-foot rule in order to work on them. Mr. Hayes asked Melvin to work on these particular signs after he arrived at the site to work on a different area. Furthermore. Mr. Haves deposition testimony revealed that Melvin had brought Mr. Hayes attention to the fact that the power lines were close to the signs. Accordingly we find no manifest error in the jurys fault allocation.

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JUDGMENT NOTWITHSTANDING THE VERDICT 21 . 112712:1 .. 1 When the jury is the factfinder the standard for overturning its verdict is a rigorous one. A Judgment Notwithstanding the Verdict JNOV is warranted only when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable persons could not arrive at a contrary verdict. The trial court may not grant a JNOV if there is contradictory evidence which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. The trial court should not evaluate witnesses credibility in deciding whether to 19 grant a JNOV. and it must resolve all inferences or factual questions in lavor of the non-moving party. FN35 I aSalleWirt-I/art Stows /ih • • 0 I -46 / IA.11.2801 x 801 So.2d 33 2_d_112.5j We review the trial courts grant ofJNOV by using the same criterion that governs its decision. If reasonable persons might have reached the same verdict as the jury we should reinstate its verdict. FN36 Id. 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 Cite as: 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 Because we have already determined that the record reasonably supports the jurys determination we vacate the trial courts JNOV and reinstate the jurys verdict. 182 ADMISSIBILITY OF EXPERT TESTIMONY Louisiana Code or kk idencc Art 70: provides: If scientific technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue a witness qualified as an expert by knowledge. skill experience training. or education. may testify thereto in the form of an opinion or otherwise.

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In Dauhert v. Merrell Dow Pharmaceuticals Inc the United States Supreme Court held that trial courts must act as gatekeepers by determining that expert testimony is not only relevant but also reliable before admitting it. Louisiana adopted this holding in State v. Forel. Dauhert suggested several factors to aid the court in determining whether expert testimony is reliable including whether the experts theory is testable has been peer reviewed or a subject of publication its known or potential rate of error and its degree of acceptance within the scientific community. \ FN37 509 U.S. 579. 113 S.Ct. 2786. 125 L.Ed.2d 469 1l 993. FN38 628 So.2d 1116 .1..a.1993. 1:1‘139. Daubert 509 U.S. 579 113 S.Ct. 2786 Stephen Killingsworth 1 . 2 . 6 20 The Defendants objected to the admission of Mr. Killingsworths testimony regarding his alternative design to include an electric brake on the ladder. They argued that this testimony did not meet the Datthert/Foret tests. However both Foret as well as the United States Supreme Courts opinion in Kumho Tire Co. v. Carmi- chael reinforced that a court may use the suggested factors if it will aid in the reliability determination but the reliability test is a flexible one. We find no abuse of discretion in the trial courts decision to admit this testimony. 11‘140. 526 U.S. 137 119 S.C.1. 1167 143 2_38 1999J. Mr. Killingsworth provided instructive and informative testimony to help the jury understand the aerial lad ders components and mechanical functions. His proposed design had already been incorporated into similar devices: namely cranes. He explained that because of the similarity in the components and mechanics of the two devices. the brakes incorporation into cranes demonstrated the feasibility of its

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incorporation into aerial ladders. Even the Defendants expert admitted that adding a brake was a feasible design. Ultimately the Defendants proved that the primary purpose of each device one to carry humans and the other to carry cargo. was a critical factor that caused the adverse effects of such a design in the aerial ladder to outweigh its utility. However this factual inquiry was properly submitted to the jury. The trial court did not abuse its discretion by admitting Mr. Kill-ingsworths testimony. James Sohek L771 The trial court qualified Plaintiffs witness Mr. James Sobek as an expert physicist and professional engineer with a specialty in human vision. Mr. Sobek explained that a person viewing horizontal power lines against a clear sky cannot accurately perceive his distance from them because of a principle called stereopsis. lie offered an article that had been published on the subject. "Problems and Perception of Overhead Power Lines. - showing that the theory had been tested and discussed the known potential rate of errors. Thus the trial court did not abuse its discretion in finding Mr. Sobeks testimony reliable. 183 Defendants further argue that Mr. Sobeks testimony is irrelevant because it assumes that Melvin was looking toward the power lines just before he struck them. and they point out that no witness testified that he was actually looking in 21 this direction. Nonetheless the expert testimony shed light on a factual issue and was properly presented to the jury. Accordingly we find no merit to Defendants arguments. The trial court did not abuse its discretion in admitting Mr. Sobeks testimony. EXPERT WITNESS FEES P812911 : 301 The trial court has broad discretion to award and assess costs and we will not disturb its ruling absent an abuse of discretion. H The degree to which the experts opinion aided the court in its decision is one of the factors to consider when assessing costs of an expert witness fee." The Defendants urge that they . should not have to pay Killingsworths and Sobeks fees because their testimony

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should have been inadmissible. 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 Cite as: 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 As we have already determined that the trial court properly admitted their testimony. we find no error in its assessing their respective fees to the Defendants. U1N41 Id. FN42 Trans Louisiana Gas Co. v. Heard 629 So.2d 50011a. App. 3 Cir. - 199D. MEDICAL AND FUNERAL EXPENSES The Defendants argue that the trial court erroneously awarded the Plaintiffs 25250.00 which Signkos workers compensation carrier had already paid. Specifically. it paid 16250.00 in medical expenses and 9000.00 in funeral expenses. 3 I However the collateral source rule does not allow the two Defendants to benefit from the workers compensation carriers payments. If a plaintiff receives benefits from a source independent of the tortfeasor the bene- fits inure to the plaintiff not to the tortfeasor.In other words if the independent source here the workers compensation carrier does not intervene to recoup the benefits it already paid the plaintiff may recover the amount of the benefits from the tortfeasor. FN43 To1: Premier Ins. Co. o j Alassaelni- setts 98-1934 La.App. 3 Cir. 6.30:991 742 5Pac1. 32 The Defendants argue that the collateral source rule does not apply in the instant case because they are not the tortfeasors in the underlying suit. Nonetheless. Lucky and Sponco the two liable parties in the underlying suit could 22 not have benefitted from the workers compensation carriers payments. Accordingly the De- fendants cannot claim the benefit either. The Defendants argue that Gagnard v. Baldridge` t stands for the proposition that the plaintiffs may not get a double recovery in cases such as the instant one. However.

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Gagnard is inapplicable. In that case the plaintiff brought actions against the employer both in workers compensation and in tort. The court stated that "a wrongdoer should not be required to pay twice for the same elements of damages." In the instant case neither the Defendant attorney wrongdoers nor Lucky or Sponco the wrongdoers in the underlying action is being required to pay twice for the same element of damages. Rather the collateral source rule is applicable. 184 Thus we find no error in the trial courts ruling. FN 44. 612 Sod 732 1..a.1993. ist .. gt .... 7 . 3b emphasis added. RANDI GUIDRY The Defendants appeal the trial courts finding that Randi Guidry is a proper party to recover wrongful death and survival damages. Louisiana Lode Article 2- delineates the classes of persons who may recover for these damages. The first is "title surviving spouse and child or children of the deceased or either the spouse or the child or children." Before trial the parties stipulated that Randi was Melvins daughter. The Defendants apparently made this stipulation based on Julies deposition testimony. However at trial testimony revealed that she was not Melvins biological daughter notwithstanding his signature on her birth certificate as well as his execution of an Act of Acknowledgment of Paternity. The Defendants argue that because no formal adoption took place Randi cannot recover as Melvins daughter. I N40. La.:iv.Code art. 2315.1 I .a.t.iv.2 ode art 3 I S.Z. The trial court found that Randi could recover: The Rousseve court explained that the acknowledgment---when the acknowledged fact is ultimately untrue the acknowledgment---and the Court is impressed with the word "may be null" absent some overriding concern of public policy indicating to this Court that 23 it is not necessarily an absolute nullity but must he reviewed under the circumstances surrounding the specific case that is before it.

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In tehrr. R A.Tiwn 467 t S. 24 . N. .103 t. 77 ..1-1.2d 614 the U.S. Supreme Court observed that intangible fibers that connect parent and child have infinite variety and are woven throughout the fabric of our society providing it with strength beauty. and flexibility. The rights of parents have long been recognized as a counterpart of the responsibilities they have assumed. Justice Stewart noted in his ascending sic opinion in Cohan v. Vohuniniej. 441 U.S. 380. 00 S.21 1760 60 1.1.-:1.2d 207 that parental rights do not spring full blown from biological connection between parent FN48. M. at 419. QUANTUM OF DAMAGES 24 Loss of Support 34j The jury awarded the Plaintiffs 350.000.00 for Melvins past wages and loss of earning capacity. Both Plaintiffs and Defendants presented expert testimony regarding this element of damages. Plaintiffs expert included fringe benefits as well as a significant salary increase which he based on Mr. Kojis testimony that had Melvin stayed with Signko. he would have received these benefits. Defendants expert used Melvins past income tax returns and did not include the added benefits because Melvin was not receiving them at the time of his death. He found it to be unlikely that Melvin would have worked at Signko until retirement given that Melvin had worked for other sign companies in the past and the high turnover rate in the business generally. .3511361 The jury did not award the exact figure that either expert calculated. Nevertheless it is permitted to "substitute common sense and judgment for that of an expert witness when such a substitution appears war- ranted on the record as a whole.""Credibility deter- minations are for the trier of fact even as to the evaluation of expert witness testimony. A fact-finder may accept or reject the opinion expressed by an expert in whole or

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in part."Thus we find no error in the jurys determi- nation. 1/N49. Green 03-2-195 p. J.a.5 25 04. 874 So.2d 838 84.3. 1N50. ht at 843. Pre-Death Pain and .Su//ring 3713 . 8_1 The jury found the Plaintiffs were entitled to 10000.00 for Melvins pre-death pain and suffering. It has vast discretion in assessing damages. We may find that it abused this discretion only if its award is so low in proportion to the injury that it shocks our conscience. Indeed we so find in the instant case. Mr. Hayes who came out of the store immediately after the accident. testified: 1. N51. Young../- ilzmuriek 03-1038 fl .a.App. Cir. 2 4:041 . ..865 So.2d 960. A. When I come out I seen him laying on the ground. There was a couple of people around him. I seen smoke coming off his shirt and I run over to see if I could help in any way. There was another fellow there trying to do a little CPR on him. He was making a lot of moaning sounds and they asked me to help hold him down and not let him move. At that time they werent sure you know 1 25 wasnt sure what had happened. The basket was still up in the air. So I assumed he had had a pretty good fall and that is the reason they wanted me to hold him down you know. So. two of us held him there waiting for the ambulance to get there. Q. You had to actually physically hold him down A. Yes sir. 896 So.2d 164. 2004-325 La.App. 3 Cir. 12/29/04 Cite as: 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04

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Q. Did you take off his shirt A. No not just myself. A few people that were there just-it was smoldering so we wanted it off of him. Q. And when you took off his shirt you actually burned your hands A. Yes sir. Accordingly. we vacate the trial courts JNOV reinstate the jurys verdict amend its judgment to increase the quantum of damages for pain and suffering and render. We also reverse the trial courts 70000.00 award to Randi Guidry. We cast all costs of this appeal on the Defendants. AFFIRMED IN PART AS AMENDED REVERSED IN PART AND RENDERED. 186 Q. And you said he was making noises. It appeared that he was in pain A. Yes sir. Dr. Ledet testified that by the time Melvin reached the emergency room he had lost consciousness. While we do not know the duration of Melvins consciousness the above testimony reveals that he did have awareness im- mediately following the accident. The Plaintiffs cite Strawder v. Zapata Haynie Corp. in which the decedents drowned twenty to thirty minutes after an explosion which caused severe burning and blistering. This court upheld an award of 500.000.00 for pre-death pain and suffering. Additionally. in Cox r. Moore this court upheld a 150000.00 award for pre-death pain and suffering where the decedent died only a few minutes or almost instantaneously after a car accident. While we found the award to be on the high end of the spectrum it was not an abuse of discretion. 1N52 94-453 1a.App . . 3 Cir. 1E294. 649 So.2d 554.

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Accordingly we find 75000.00 to be the lowest reasonable amount for Melvins pre-death pain and suffering. Therefore we increase the jurys assessment to that amount. Mental Anguiskfrom Malpractice L39 26 The jury awarded 30000.00 for mental anguish arising from the Defendants malpractice. Again the jury has vast discretion in assessing damages. We do not find that 30000.00 is abusively low. Thus. we affirm this quantum. CONCLUSION WOODARD J.. concurring in part. Given the uncertainty of how our supreme court would view the unusual circumstances in the instant case under the light of its Turner v. Bushy ` I opinion I am constrained to vote with the majority regarding Randi Guidrys legal status in her family. Namely Turner addressed the rights of acknowledged illegitimate children who are not biological children but did not specifically address how legitimated children in the same circumstances are to be treated. In fact it intimated that perhaps its conclusion that acknowledged illegitimate children could not recover wrongful death and survival damages under La.R.S. 2315.1 and 2315.2 would be different for legitimated children as in Randis situation. EN I 03-34-W 1 a.9./9:2004 883 So.2d -412. Louisiana law classifies children as either legitimate. illegitimate or legitimated. - Louisiana Civil Code provides methods for both formally acknowledging illegitimate children and for legitimating illegitimate children. Formal acknowledgment and legitimation are separate and distinct acts with different effects and benefits flowing from each. Most importantly legitimated children enjoy an added layer of protection from those who wish to attack the parent/child relationship. Specifically the Civil Code explicitly permits. only. the father or if 187 he is deceased his heirs or legatees to seek to disavow a le-

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gitimate childs paternity.Conversely La.Civ.Code art. 207 provides that lelvery claim set up by illegitimate children. may be contested by those who have amv interest therein." Emphasis added. 1:N2. Id. EN3. La.Civ.Code art. 187 La.Civ.t.ode art 190. In Turner La.Civ.Code art. 207 permitted the defendants to attack McWrights claim because he was a for- 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 Cite as: 896 So.2d 164. 2004-325 La.App. 3 Cir. 12/29/04 mally acknowledged. illegitimate child. When he sought to prove that he was a proper party to recover wrongful death damages because the deceased had executed multiple acknowledgments of paternity for child support purposes the defendants contested the existence of a biological relationship and argued that the acknowledgments were insufficient to elevate his status to a "child" for wrongful death purposes. Ultimately DNA tests proved that no biological relationship in fact existed and the supreme court deemed the formal acknowledgment to be a nullity because of this. Before Turner our jurisprudence governing formal acknowledgments held that "when the acknowledged fact is ultimately untrue the acknowledgment may be null absent some overriding concern of public polk:v. -F\4 This permitted courts some discretion. However essentially the supreme courts decision in Turner deletes the italicized language of prior jurisprudence finding that "an Article 203 formal acknowledgment absent a biologi- cal relationship is a nullity." Emphasis added. FN4 /. TyAcyc v. ./rnicv. 97- I I 49. p La.122:97 . 704 So.2d 229. 233. ENS. Turner. 883 So.2d 412. Notwithstanding the court highlighted the distinction between a formally

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acknowledged illegitimate child and a legitimated child. It concluded that the acknowledgment of paternity at issue lacked a declaration of intent to legitimate McWright and In Wilma this declaration. the execution of the ... stipulation did not legitimize McWright. Because McWright was not a legitimate child at the time this wrongful death and survival action commenced but rather a formally acknowledged illegaimated child under Article 203 his claim as an illegitimate child may be subject to scrutiny provided the defendants have probed all other requirements of Article 207." Emphasis added. FN6. Id. at 418. This statement contemplates the possibility that. despite the absence of a biological relationship between him and the child the deceased could have legitimated McWright thereby permitting his recovery of wrongful death benefits if the deceased had declared his intention to do so. Indeed. if the supreme court intended this distinction. it appears to contradict other portions of its Turner opinion which emphasize that a biological relationship is necessary for recovery. In support of its decision the supreme court stressed that it is the biological relationship rather than the legal status which is determinative of whether a person is entitled to recover these damages. It specifically stated "it is imperative that we uphold the critical requirement that the tort victim and the child have a biological relationship." Consequently the opinion gives us conflicting guidance in resolving Randis right to recover particularly when meshed with legislative dictates. For example. the Turner opinions prohibition on a childs recovery based on no biological relationship is inconsistent with our Civil Code which does not create classifications188 of biological versus non-biological children but rather only legitimate versus illegitimate children. The Code clearly contemplates the possibility . that a child could prove legitimate filiation and receive the attendant benefits of this classification without having a biological relationship.

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1.oti- iatla Civil Code art. 193 through . 107 provide that a party can prove legitimation through inter cilia "a transcript from the register of birth or baptism" or by reputation. Article 195 states. in pertinent part: The being considered in this capacity is proved by a sufficient collection of facts demonstrating the connection of filiation and paternity which exists between an individual and the family to which he belongs. The most material of these facts are: That such individual has always been called by the surname of the father from whom he pretends to be born• Emphasis added. This language implicitly recognizes that legitimated children are not necessarily biological children. Moreover none of the methods of legitimat- ing a child require proof of a biological relationship. The method Melvin chose to legitimate Randi is that provided in I .a.Civ.Code art. 19S: Illegitimate children are legitimated by the subsequent marriage of their father and mother whenever theC_D 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 Cite as: 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/04 latter have formally or informally acknowledged them as their children either before or after the marriage. Melvin had elevated Randis status to that of a "legitimated child" under all of the relevant codal provisions. By the time of the wrongful death suit not only had he formally acknowledged her as his daughter through an Act of Acknowledgment of Paternity but also he had signed her birth certificate as her father and subsequently. married her mother. Furthermore she was his daughter by reputation. All of these affirmative acts.

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evidencing his intent should provide her with an added layer of protection against attacks from third-party defendants regarding her familial status. Nevertheless the dilemma for Randi is two-fold: She is not Melvins biological child and the method Melvin chose to legitimate her is premised in part on an acknowledgment which alone the supreme court considers null absent a biological relationship. The unanswered question is whether this nullity can be cured and. if so. whether Melvin cured it by taking the next step of legitimating Randi. Furthermore there is an issue of whether the third-party Defendants even have standing to contest Randis claim given l.a.Civ.Cotle art . 187 and 190. Essentially these articles imbue only the "father" or his heirs with standing to strip a "child" of his or her legitimate status which in essence is the foundation of these third-party defendants claims in the instant case. Given the apparent legislative intent as well as Melvins it certainly does not seem appropriate or prudent for TUIllerti umbrella to be held over Randis head deny- ing her benefits for the loss of the man she knew to be and treated as her father. La.App. 3 Cir.2004. Guidry v. Coregis Ins. Co. 896 So.2d 164 2004-325 La.App. 3 Cir. 12/29/041 END OF DOCUMENT

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further other than to say that he will be able to testify as an accident reconstruction expert with regard to safety analysis. He will be able to testify as to electrical injuries as it applies to safety analysis. He will be able to testify as to aerial ladders as to safety analysis for which The Court is satisfied as to his training and expertise in those matters. But rather than qualify him in each of the categories as tendered from the plaintiff it feels that the area that may be included as part of that testimony will be within the areas that The Court has delineated. I want to make certain that I have indicated that he will be able to testify at this point so that we do not have objections throughout his testimony by the defendants and if the defendants objections to anything above and beyond the safety engineer for which The Court has previously accepted objections are noted. MR. MARCEAUX: Thank you Your Honor. Break in proceedings Jury returns to courtroom THE COURT: All right Ladies and Gentlemen at this time we are ready to proceed. Al this time The Court would accept and recognize Mr. Lewis Barbe as an expert in the field of safety engineering and also as an expert in would be accepted as an expert in the field of accident reconstruction until such time as that information was to be submitted. Now hes before The court and offered in various positions as an expert for which the defendants have indicated their objections. The Court has previously reviewed and for the reasons stated and if I am incorrect on the date it was the--- Im not sure. I think it was October the 10th but it was the hearing that was had at that time The Court gave the rationale the basis for Daubert the application of State v. Foret of Daubert to the State of Louisiana and the basis for expert evaluation. The Court also relied upon the case of Mistich vs. Volkswagon of Germany Inc. 86 So. 2d 1073 indicating that experience alone can be sufficient to qualify as an expert. At this time based on the information received and what we may be doing in part and parcel is arguing semantics of which The Court feels that the use of the word "design" may be inappropriate since Mr. Barbe insists on the word "analysis." The Court is going to continue to accept him in the field as an expert in safety engineering. The Court is also satisfied that he is an expert in safety analysis based on his past history education training as well as experience. As a result of being an expert in safety analysis The Court is not going to go any

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previous cases in safety engineering of cranes. That is what hes here to testify for. He has been accepted before. He also stated and I think Mr. Roy is mischaracterizing his testimony. He stated that he is not aware of a course in college that you can take on accident reconstruction. However as a safety engineer he has taken numerous courses in accident reconstruction and he has been accepted in court before as a safety engineer and given opinions on accident reconstruction. So that is what were talking about and that is what were tendering him as. THE COURT: All right. 1 am not familiar with the specifics of the depositions that were taken but The Court does recall approximately October the 10th there was a specific hearing in which Mr. Barbe was brought in and Daubert challenges were made at that time. The Court upon hearing the qualifications and the traversal did accept Mr. Barbe as an expert in the field of safety engineering. Following Mr. Barbes release from the witness stand it became apparent that he was going to be tendered or at least pursuant to argument by the plaintiffs as an expert in the field of accident reconstruction. The Court indicated at that time it felt that it had insufficient information in fact did defer making any decision as to whether he

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