author: Judge Regina Bartholomew-Woods BELSOME, J., LANDRIEU, J., LEDET, J.,

text:
    Darleen LEVY and Darleen M. Jacobs, a Professional Law Corporation v. Jessica A. LEWIS, Steakhouse New Orleans L.L.C., Maryland Casualty Company and Progressive Security Insurance Company
    NO. 2016-CA-0551
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 17, 2017
    Rehearing Denied May 30, 2017

      Darleen M. Jacobs, Hunter Harris, A1 Sarrat, Rene Lovelace, JACOB SARRAT, LOVELACE & HARRIS, 823 St. Louis Street, New Orleans, LA 70112-3415, COUNSEL FOR PLAINTIFFS-APPELLANTS/PLAINTIFFS-APPELLEES
    Jack E. Truitt, Pamela Seeber Chehar-dy, Amber L. Mitchell, Peter M. Gahagan, THE TRUITT LAW FIRM, 149 North New Hampshire Street, Covington, LA 70433, David A. Strauss, Adam P. Massey, KING KREBS & JURGENS, PLLC, 201 St. Charles Avenue, 45™ Floor, New Orleans, LA 70170, Joseph Maselli, Jr., Scott H. Mason, PLAUCHE MASELLI & PAR-KERSON L.L.P, One Shell Square, Suite 3800, 701 Poydras Street, New Orleans, LA 70139, COUNSEL FOR DEFENDANTS-APPELLEES
    Nat G. Kiefer, Jr., Megan C. Kiefer, KIEFER & KIEFER, 2310 Metairie Road, Metairie, LA 70001-5531, COUNSEL FOR DEFENDANTS-APPEL-LEES/DEFENDANTS-APPELLANTS'
    (Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Madeleine M. Landrieu, Judge Rosemary Ledet, Judge Regina Bartholomew-Woods)
   Judge Regina Bartholomew-Woods

| garleen Levy and Darleen M. Jacobs, A Professional Law Corporation (collectively, “Plaintiffs”), appeal the judgment of the Orleans Parish Civil District Court dated January 29, 2016, rendering judgment in her favor against Jessica A. Lewis, Steakhouse New Orleans, L.L.C. (“Steakhouse”), Maryland Casualty Company (“Maryland”), and Progressive Security Insurance Company (“Progressive”) (collectively, sometimes referred to as, “Defendants”).

For the reasons that follow, we reverse the judgment of the trial court and remand this matter for a new trial,

FACTS AND PROCEDURAL HISTORY

On May 16, 2011, at approximately 10:30 a.m., Darleen Levy was operating her 2011 Lexus GS350 Sedan. While traveling in an easterly direction on St. Charles Avenue, in the City of New Orleans, Louisiana, her vehicle was struck from behind by a 2005 Chevrolet 1500 pick-up truck. The truck was owned by Steakhouse New Orleans, LLC and being operated by its employee, Jessica Lewis.

Plaintiffs’ initial petition for damages was filed in Orleans Parish Civil District Court on March 13, 2012. Plaintiffs subsequently filed a first supplemental Land amending petition, naming Ms. Lewis, Steakhouse, Steakhouse’s insurance carrier, Maryland, and Ms. Levy’s Uninsured/Underinsured (UM/UIM) insurance carrier, Progressive, as Defendants. Maryland and Progressive are both foreign corporations.

On May 16, 2013, Plaintiffs filed a second supplemental and amending petition asserting a bad faith claim against Progressive as Ms. Levy’s UM/UIM carrier. On August 22, 2014, Progressive filed a motion for partial summary judgment seeking dismissal of Plaintiffs’ bad faith claim, without prejudice. On October 8, 2015, Progressive filed a supplement to its request for relief seeking dismissal of Plaintiffs’ bad faith claim, with prejudice.

Plaintiffs claimed multi-million dollar economic losses as supported by Ms. Levy’s federal income tax returns. Also included within Ms. Levy’s tax returns were references to her income from other sources, referred to as “passive” or “unearned” income. Plaintiffs filed a motion in limine and supporting memorandum seeking to prohibit Defendants from directly or indirectly presenting any testimony, making any statements or argument, or introducing any evidence concerning her passive income, specifically, her real estate holdings, stock holdings or wealth. Defendants opposed.

On October 16, 2015, the trial court held a hearing on the various pre-trial motions filed by both Plaintiffs and Defendants. In a Judgment dated November 9, 2015, the trial court denied, in relevant part, Plaintiffs’ motion in limine to preclude references to her passive income. The trial court also granted Progressive’s motion for partial summary judgment on Plaintiffs’ bad faith claim, with prejudice. Finally, the trial court denied the Defendants’ Daubert motion to strike Plaintiffs’ economic expert. It further ordered Plaintiffs to provide to ^Defendants a calendar showing Ms. Levy’s trials for the two-year period prior to and all years after the accident, as well as all settlements Plaintiffs reached during the same time period.

On application for supervisory writ, this Court reversed that portion of the ruling dismissing the bad faith claim asserted against Progressive, with prejudice. Levy, et al v. Lewis, et al, 15-1303 (La.App. 4. Cir. 1/15/16).

A jury trial on the merits proceeded on January 19, 2016. On January 29, 2016, the jury rendered its verdict, finding the negligence of defendant, Jessica Lewis,' to be the proximate cause of Plaintiffs’ injuries and damages. The jury awarded Ms. Levy $30,000 for physical pain and suffering, past, present, and future; $10,000 for mental anguish and' suffering, past, present, and future; $7,500 for loss of life’s enjoyment, past, present, and future; and $14,000 for past medical expenses, for a total of $61,500. The jury awarded no damages for permanent injuries and disability or loss of income. The final judgment was signed February 25,2016.

Plaintiffs now appeal, alleging five assignments of error. In light of our ultimate ruling, we address only a portion of assignment of error number one, assignment of error number four, and a portion of assignment of error number five. Progressive also appeals, seeking 'amendment of the judgment insofar as it failed to include judgment in its favor for $5,000 made to Ms. Levy in medical payments under her policy, despite her failure to prove that her damages exceeded the limits of the liability policy. Again, in light of our ruling, the latter matter will need to be addressed on remand.

| ASSIGNMENTS OF ERROR

ASSIGNMENT OF ERROR NO. 1

In their first assignment of error, Plaintiffs argue that the trial, court erred in refusing to exclude certain evidence. In part, Plaintiffs argue Ms. Levy did not allege nor was she claiming a loss of passive, or “unearned,” income as a result of the accident, and therefore, evidence of her personal wealth and passive income was irrelevant to her claim of loss of income from her work as an attorney.

In challenging evidentiary rulings, Plaintiffs bear the burden of showing that a “substantial right” was affected. La. C.E. art. 103(A). Plaintiffs rely on Rodriguez v. Traylor, 468 So.2d 1186, 1188 (La.1985), which held “that the wealth or poverty of a party to a lawsuit is not a proper consideration in the determination of compensatory damages. Each litigant should stand equal in the eyes of the law regardless of his financial standing.” Ms. Levy contends that all claims are for wages lost through her inability to earn wages through her labor as an attorney, and her passive income was irrelevant in light of Rodriguez. Ms. Levy further argues that passive income from investments is not considered “wages” or “earned income” as a matter of law, noting that this Court, in Iles v. Ogden, 09-0820, p, 3 (La.App. 4 Cir. 2/26/10), 37 So.3d 427, 432 n. 4, found passive income to be “unearned” income.

Defendants respond that this issue is settled by the “law of the case” doctrine as a result of this Court’s previous denial of Plaintiffs’ supervisory writ raising the same error. Levy, et al v. Lewis, et al, 15-1303 (La.App. 4. Cir. 1/15/16). However, this Court is not persuaded by such an argument. “A denial of supervisory review is merely a decision not to exercise the extraordinary powers of supervisory | ¿jurisdiction, and it does not bar consideration on the merits of the issue denied supervisory review, when appeal is taken from final judgment.” State v. Fontenot, 550 So.2d 179, 179 (La.1989). “Thus, the ruling denying supervisory writs does not bar reconsideration of the issue on appeal and there reaching a different conclusion as to it.” Id.

Defendants additionally argue the evidence was admitted for permissible purposes. Specifically, Defendants assert such evidence was submitted to show that Ms. Levy continued to work as vigorously after the accident as before, to include even work unrelated to her law practice. Furthermore, Defendants submit that there was never any mention of her specific wealth from these sources, and that Plaintiffs failed to- cite to any portion of the transcript in which Defendants discussed her passive income. Finally, Defendants assert that Ms. Levy opened the door to the introduction of her passive income.

We agree that evidence of an individual’s passive income which is not relevant to a claim of lost wages should not be introduced to a jury. We find that the trial court’s reasoning in denying the motion in limine regarding passive income unpersuasive; the trial court reasoned that “Ms. Levy’s ability to earn income from other businesses may be probative of the extent to which the accident sued upon affected her loss of earning capacity;” In reaching this conclusion, the trial court ignored the fact that Plaintiffs were not alleging any loss other than as it pertains to her ability or inability to practice law. Thus, any other passive income was irrelevant and injected prejudicial error against the Plaintiffs.

Despite Defendants’ assertions, the inclusion and/or the introduction of passive income was first determined when the trial court erroneously denied Plaintiffs’ motion in limine wherein they sought to exclude any and all 16references/evidence of Plaintiffs’ passive income. Plaintiffs never made a loss of wage claim due to Ms. Levy’s passive income. Plaintiffs’ loss of wage claim arose exclusively from Ms. Levy’s ability to earn wages as an attorney. While Plaintiffs did indeed introduce Ms. Levy’s tax returns evincing her passive income, the trial court’s pre-trial ruling necessarily prevented Plaintiffs from redacting the prejudicial information contained therein. Thus, the trial court committed error in allowing references and evidence of Plaintiffs’ passive income to be introduced to the jury. ,

Furthermore, Defendants made references to the introduction of Plaintiffs’ tax returns and W-2s during opening statements. Such references required Plaintiffs’ counsel to address the issue on direct examination of Ms. Levy. The jury would surely observe her passive- income in her returns and W-2s. Thus, it cannot be said that Plaintiffs opened the door to this issue, when Defendants indicated their intent to address Ms. Levy’s passive income through pre-trial motion practice and during opening statements.

Moreover, on cross-examination, Defendants indeed inquired into the passive income issue in the context of a post-accident magazine article profiling Ms. Levy as a “Super Lawyer.” Counsel for Steakhouse asked whether she had stated in the article that she had little spare time because of her busy work schedule, due in part to her work as a real estate broker and property manager and operator. Counsel asked whether she still had a substantial interest in those management companies, which she acknowledged. Counsel also asked her whether she was involved in the development of a “multimillion | ydollar” gas station project, which she acknowledged, though disputing that it was indeed a “multimillion dollar” project. Counsel for Ms. Levy did not object at the time of the questioning, though Ms. Levy did raise an objection on her own later in the proceedings.

Counsel for Progressive also inquired as to Ms. Levy’s non-legal enterprises. She was asked whether she kept busy running three business, to which she responded “I have people that run [two of] them[,]” meaning her non-legal endeavors.' Counsel pointed her to her deposition, in which she stated “Isn’t it enough businesses to run? Do you want me to run another one?” Counsel then referred to the tax returns Plaintiffs submitted into evidence, which indicated her ownership of numerous rental properties. Counsel also questioned Ms. Levy about losses on the properties prior to the accident compared to gains after the accident reflected in the tax returns, while, in counsel’s words, Ms. Levy was “overseeing or running” those properties. Ms. Levy explained that many of the properties had to be repaired after - Hurricane Katrina, which is why the gains were reflected in later years.

Loss of earning capacity and lost wages are distinguishable claim's. In Finnie v. Vallee, 620 So.2d 897, 900-01 (La. App. 4 Cir. 1993) (footnote omitted) this court stated:

Loss of earning capacity is not the same as lost wages. Rather, earning capacity refers to a person’s , potential. Earning capacity is not necessarily determined by actual loss. While the plaintiffs earnings at the time of the accident may be relevant, such figures are not necessarily indicative of his past or future lost earning capacity. The plaintiff need not be working or even in a certain profession to recover this type of award. What is being compensated is the plaintiffs lost ability to earn a certain amount, and he may recover such, damages even though he may never have seen fit to take advantage of that capacity. Hobgood v. Aucoin, 574 So.2d 344, 346 (La.1990). The trial court should consider whether and how much the plaintiffs current condition disadvantages him in the work force. The trial court, should thus ask itself what the plaintiff might be able to have earned but for his injuries and what he. may now. earn given his resulting condition.

I «The trial court considered Ms. Levy’s ability, or capacity, to earn-income generally as a basis to challenge her specific claim of lost income as an attorney. Because Plaintiffs sought only lost future income for Ms. Levy as an attorney, the trial court erred in allowing Defendants to inquire as to her passive income.

ASSIGNMENT OF ÉRRÓR NO. 4

Plaintiffs’ fourth assignment of error argues that the -trial court' erred in granting Defendants’ motion for a directed verdict regarding future medical expenses. In support of this argument, Plaintiffs cite Youn v. Mar. Overseas Corp., 623 So.2d 1257, 1262 (La. 1993), which held:

In Stiles v. K-Mart Corp., 597 So.2d 1012 (La.1992), plaintiff proved that he would require future medical treatment, but did not present expert testimony as to the cost of the treatment. The court of appeal deleted the trial court’s award for this item of damages, but this court reinstated the award, noting:
When the record establishes that future medical expenses will be necessary and inevitable, the court should not reject an award of future medical expenses on the basis that the record does not provide the exact value of the necessary expenses, if the court can examine the record and determine from evidence of past medical expenses and other evidence a minimum amount that reasonable minds could not disagree will be required. La.Code of Civ.Proc. art. 2164.

597 So.2d at 1013.

Ms. Levy testified that at the time of trial, she was seventy-one years old. She explained that she was born with Von Wil-lebrand disease, a bleeding disorder that could render surgery fatal. She acknowledged that she was rear-ended in a prior motor vehicle accident in 1988, injuring her neck and back. She unsuccessfully treated her injuries for months, ultimately opting for surgery in 1990. .She testified that as a result ■ of her Von ■ Willebrand disease, she hemorrhaged, blacked out, and was “out of it” for three days. Ms. Levy claimed |Bthat after her surgery in 1990, she was in good health and that her work was unaffected. Between 1990 and the 2011 accident, she claimed her only health issues were kidney stones for a period, having her gall bladder removed, and a 2001 knee surgery due to an exercising injury.

On the date of the accident, May 16, 2011, Ms. Levy stated she was sitting in traffic when she was struck from behind. She said her head hit the visor and her chest hit the steering wheel. She also testified that her seat back collapsed and twisted to such an extent that it had to be replaced. She said she blacked out and thought she was having a heart attack. She ultimately went to the emergency room for treatment.

She testified that she began subsequent treatment a few days after the accident with Dr. George Murphy, an experienced physician board certified in orthopedic surgery, with whom she treated up to trial. She complained of a “severe headache,” and claimed her head was still red from hitting her visor. She also claimed to be experiencing neck, chest, and back pain. Dr. Murphy gave her medication and referred her to other professionals for more specific treatments and to explore other options, since he no longer performed surgical procedures.

At the time of trial, Ms. Levy stated she experienced pain like a “hot poker” going down her spine, and also felt pain in both her legs and arms. She also testified to her difficulty in making fists with her hands. She explained that she takes a Medrol Dosepak every two months as well as Ce-lebrex to treat her pain. Her neurosurgeon, Dr. Rand Voorhies, referred her to a Dr. Martinez, who gave her one steroid injection. She also saw Dr. Daniel Lund-gren, who raised the option of a morphine pump to manage her pain. However, Ms. Levy stated that she is allergic to morphine.

1inMs. Levy did indeed testify that she wanted to get better and wanted surgery for that purpose. However, she acknowledged that Dr. Voorhies did not recommend any surgery due to her Von Willeb-rand disease, as it would be too dangerous because if she were to hemorrhage it could be fatal. She described the surgery and even added that Dr. Voorhies “doesn’t think it would do me any good.”

She also described treatment with Doctors Barczyk and Kruse, her chiropractors. She testified that she has received several treatments of “dry needle surgery” from Dr. Kruse.

Plaintiffs called several medical experts to testify regarding Ms. Levy’s prognosis. The first was Dr. George Murphy, who explained that her susceptibility to bleeding limited her treatment options. At least initially, he did not recommend physical therapy for Ms. Levy, only medication arid rest. Accordingly, throughout his treatment of Ms. Levy, he has prescribed anti-inflammatory medications, provided cortisone injections, and removed fluid from her knee. He also testified that her magnetic resonance imaging (“MRI”) revealed degenerative disc disease and herniation. He also referred her to Dr. Tarun Jolly, who gave her epidural steroid injections, but an allergic reaction required termination of that particular treatment option. As her treating physician up through trial, Dr. Murphy was also able to testify that the only medications that were successful with Ms. Levy were Celebrex and cortisone pills. He also testified that she would probably be seeing a doctor to treat her pain indefinitely.

Next, Plaintiffs called Dr. Eduardo Rodriguez, an expert in internal medicine. He had been treating Ms. Levy since 2000. He noted her 1990 and 2001 surgeries. He also described a 2004 bone scan which revealed some degenerative |T1changes. Ms. Levy also had a history of kidney stories and even reported some chest pain in the week prior to the accident. However, Dr. Rodriguez testified that Ms. Levy did not report any neck or back pain prior to the 2011 accident.

Plaintiffs called David Barczyk, a doctor of chiropractic. He described himself as.a physician, but he does not treat with medication or surgery. He also described himself as an injury biomechanist, which involves the study of how the body reacts to forces such as an automobile collision. Ultimately, Dr. Barczyk recommended Ms. Levy see a chiropractor or a physical therapist, and acknowledged her inability to get surgery. He therefore suggested she “undergo some type of manual therapy to strengthen her body some.”

Plaintiffs also called Dr. Rand Voorhies, an experienced, board certified neurosurgeon, admitted as an expert. He began treating Ms.' Levy in May of 2013. He reviewed Ms. Levy’s MRIs from the accident, as well as those from her previous automobile collision in 1992. He testified that the appearance of the cervical and lumbar MRIs was “dramatically different” from 1992 to 2011. He stated that Ms. Levy’s Von Willebrand disease “can impact” whether or not she would be a candidate for surgery. He explained his “hope” that Ms. Levy could resort to non-surgical treatment. He also suggested a treatment whereby Ms. Levy’s nerve endings could be burned as a means to dull her pain on a short-term basis. He did not suggest the morphine pump, as that treatment option was more for those who “have a relatively short life expectancy.” He described fusion surgery as a “whopper” and that there were concerns regarding that option.because of her Von Willebrand disease, though he did say it could be a “viable option” depending on what a hematologist would suggest.

| ^Defendants also offered their own medical expert testimony to contradict that of Plaintiffs. Defendants called Dr. Deepak Awasthi, a board certified neurosurgeon, admitted as an expert. He conducted an independent medical exam of Ms. Levy. He.also reviewed her emergency room records and MRIs from after the accident, and he was aware of her 1990 surgery. In his opinion, the MRIs from just weeks after the accident did not reveal any acute injury from the- accident, but rather reflected chronic deterioration and' degeneration.

Plaintiffs note that Ms. Levy testified at trial about ongoing neck and back pain and issues with her ability to fully close her hands as a result of the accident. She testified that she wants to get better, and Plaintiffs suggest in their brief that her doctors recommended a morphine pump and surgery. In a related assignment of error, Plaintiffs submit Ms. Levy will need lumbar fusion and cervical fusion surgeries.

An award of future medical expenses was discussed by this court in Joseph v. Archdiocese of New Orleans, 10-0659, p. 6 (La.App. 4 Cir. 11/10/10), 52 So.3d 203, 207:

We review the jury’s award for Mr. Joseph’s future medical expenses, which is an item of special damage, under the manifest error standard of review. “Future medicals need not be established with mathematical certainty although a plaintiff must prove that it is more probable than not that expenses will be incurred[” ... ] and “some evidence to support the award must be contained in the record.” Molony v. USAA Property and Casualty Ins. Co., 97-1836, pp. 2-3 (La.App. 4 Cir. 3/4/98), 708 So.2d 1220, 1221 (citations omitted). The Louisiana Supreme Court in Duncan v. Kansas City Southern Railway Co., 00-0066, p. 17 (La. 10/30/00), 773 So.2d 670, 685, stated: “Awards will not be made in the absence of medical testimony that they are indicated and setting out their probable cost.” The plaintiff must show that future medical expenses more probably than not will be incurred, he must show that they are needed, and he must supply estimates of their probable cost. Abuan v. Smedvig Tankships, Ltd., 96-1013, p. 21 (La.App. 4 Cir. 6/24/98), 717 So.2d 1194, 1205.

11sThe posture of this case is different from that of Joseph, however. The trial court granted Defendants’ motion for a directed verdict, based on Plaintiffs’ failure to- give “some idea of what [future care] costs.” Later in the proceedings, the trial court appeared to admit an error in that regard, stating “I should not have granted the directed verdict without giving [Plaintiffs] a chance to respond to it.” Nevertheless, the court ruled that its prior ruling granting the motion for a directed verdict would stand.

The standard of review in such context was set forth by this Court in Everhardt v. Louisiana Dep’t of Transp. & Dev., 07-0981, pp. 13-14 (La.App. 4 Cir. 2/20/08), 978 So.2d 1036, 1047:

The standard of review on appeal of a directed verdict is whether reasonable persons could not reach a contrary verdict under the evidence. Davis v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, 03-2219, pp. 7-8 (La.App. 4 Cir. 11/17/04), 887 So.2d 722, 727. The question to be asked by the appellate court" is not whether a plaintiff proved his case by a preponderance of the evidence, but rather, whether upon reviewing the evidence submitted, the, court could conclude that reasonable. persons could not have reached a verdict in favor of the plaintiff. Id. The appellate court must also determine -if the -record supports the granting of a directed verdict, based not on a credibility .determination (a factual issue), but on a sufficienoy-of-evidence determination (a question of law). Id.; Lott v. Lebon, 96-1328, p. 4 (La.App. 4 Cir. 1/15/97), 687 So.2d 612, 616. A directed verdict must be sustained on appeal where the reviewing court would find a jury verdict in favor of the party opposing the motion-to be manifestly erroneous had the- trial judge allowed the case to go to the jury. Wichser v. Trosclair, 99-1929, p. 5 (La.App. 4 Cir. 2/28/01), 789 So.2d 24, 27. The court of appeal considers the evidence under the substantive law applicable to the nonmoving party’s claim. Tanner v. Cooksey, 42,010, p. 6 (La.App. 2 Cir. 4/4/07), 954 So.2d 335, 339.

First, we note Plaintiffs’ suggestion in their brief that Ms. Levy’s doctors recommended a morphine pump and surgery directly contradicts representations made at trial. Indeed, in arguing against the motion for directed verdict, Ms. Levy’s counsel stated:

_|_yThere definitely was testimony from Dr. Murphy- on future prognosis. His recommendation is that Ms. Levy continue to treat with him like she has over the past five years or so. I think that the jury can easily put a number on that because it’s essentially the same thing with him that has been happening for the past five years,
I would agree on the future surgery which she’s not going to have -and we’re not arguing to the jury she is going to. We’re not arguing to the jury she’s getting a morphine pump. I think it’s been made clear to - the jury that she’s not a candidate for either of those things.
■ But as far as her continuing prognosis and her continuing need to treat with Dr. Murphy, there’s plenty of evidence in front of the jury about what that is, what that has cost in the past, and I think we- can ask the jury to make a determination about what that will cost in the future.;,

By Plaintiffs’ own admission, they did not intend to seek future medicals regarding a surgery that was not recommended by any of her medical experts given her Von Wil-lebrand disease. Only Dr. Voorhies suggested it could be “viable” based on a hematologist’s recommendation, but no evidence was provided by Plaintiffs in that regard. Ms. Levy, herself acknowledged that Dr. Voorhies “hasn’t recommended anything” for her. Based on her conversations with Dr. Voorhies, Ms. Levy understood that “[i]t would be a very dangerous surgery. [Dr. Voorhies] doesn’t think it would do me any good, and he’d be afraid that I would hemorrhage, because if I started to hemorrhage it.could be fatal.” Ms. Levy is allergic , to morphine—a drug most often used, according to Dr. Voor-hies, for patients near death to manage pain—clearly eliminating a morphine pump from the realm of legitimate treatment options.

Notwithstanding the aforementioned testimony and representations, this Court does recognize that Dr. Murphy, Ms. Levy’s treating physician, who provided medical treatment to Ms. Levy up through the trial, testified that as a- result of the pain Ms. Levy is experiencing from the accident, Ms. Levy will be | ^treating with him indefinitely. He has prescribed pain and anti-inflammatory medications, removed fluid from Ms. Levy’s knee, and provided cortisone injections. He also referred her to other medical, experts for more tailored treatment.

Contrary to thé tria} court’s statement that Plaintiffs did not provide evidence of what future care might cost, Plaintiffs did introduce Ms. Levy’s medical records from Dr, Murphy, which included three pages of billing statements from May 19, 2011, through December 16, 2016, totaling forty visits at a cost of $4,165. Dr. Murphy also testified that Ms. Levy was originally seeing him on a monthly basis, but in the year prior to the trial, her records reflect she visited him five times. Thus, the jury was provided information that could have been used to determine an award of future medical expenses had the trial court not improperly granted the directed verdict.

ASSIGNMENT OF ERROR NO. 5

Plaintiffs’ fifth assignment of error argues Ms. Levy was denied all of her actual damages, to wit, her past medical expenses and lost future wages. Plaintiffs further assert the general damages award was “abusively low” in light of her proven injuries and medical treatment.

Special Damages

This court, in Watson v. Hicks, 15-0046, p. 21 (La.App. 4 Cir. 5/27/15), 172 So.3d 655, 672, addressed the standard to be applied in evaluating an award of special damages:

Special damages are defined as “those which either must be specially pled or have a ‘ready market value,’ i.e. the amount of damages supposedly can be determined with relative certainty.” Wainwright v. Fontenot, 00-0492, p. 5 (La. 10/17/00), 774 So.2d 70, 74. Certain types of special damages, including medical expenses, are |16easily measured. Smith v. Escalon, 48,129, p. 10 (La.App. 2 Cir. 6/26/13), 117 So.3d 576, 583. A plaintiff is required to prove special damages by a preponderance of the evidence. Mack v. Wiley, 07-2344, p. 14 (La.App. 1 Cir. 5/2/08), 991 So.2d 479, 489. The standard of review applicable to an award of special damages is the manifest error standard. Kaiser v. Hardin, 06-2092, pp. 11-12 (La. 4/11/07), 953 So.2d 802, 810.

Furthermore, this Court discussed the “manifest error” standard in State Farm Mut. Auto. Ins. Co. v. LeRouge, 07-0918, pp. 15-16 (La.App. 4 Cir. 11/12/08), 995 So.2d 1262, 1274-75:

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo. When findings are based on determinations regarding the credibility of witnesses, the manifest error—clearly wrong standard demands great deference to the trier of fact’s findings, for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Rosell v. ESCO, supra, 549 So.2d 840, 844-845 (La. 1989).

Special Damages—Past Medical Expenses

In order to collect past medical expenses, Plaintiffs bore the burden of proving it more probable than not that Ms. Levy’s injuries, and treatments therefor, were caused by the accident in question. See Williams v. Mathieu, 13-1373, p. 2 (La.App. 4 Cir. 10/29/14), 155 So.3d 54, 57. However, this Court has previously | ^acknowledged the governing principle that past medicals, evidenced by a bill and incurred in good faith, are recoverable even under circumstances when such treatment could be viewed as unnecessary. Watson v. Hicks, 15-0046, pp. 25-26 (La. App. 4 Cir. 5/27/15), 172 So.3d 655, 675.

Plaintiffs’ own witness, Dr. George Murphy, acknowledged that Ms. Levy’s MRIs taken soon after the accident revealed “considerable degenerative disease.” Degenerative disc disease, he explained, is “especially” caused by aging, though injury can also be a cause. He further noted that trauma can aggravate the condition. There was also testimony regarding Ms. Levy’s prior motor vehicle accident in 1988, which gave rise to injuries similar to those alleged from the 2011 accident, and which ultimately required surgery in 1990. On cross-examination of Ms. Levy, it was revealed that Ms. Levy had filed a lawsuit against the other driver in the 1988 accident, and filed a pleading in 1994 requesting a continuance of the trial date because she would be receiving “additional surgery as a result of the accident.” Dr. Rodriguez further noted Ms. Levy’s prior knee pain requiring surgery in 2001, as well as a 2004 bone scan revealing “mild arthritis.” He also stated that Ms. Levy experienced “chest fluttering” as late as a week prior to the accident. Ultimately, however, in diagnosing Ms. Levy with cervical and lumbar disc disease with radiculopathy, Dr. Murphy in his expert opinion attributed the condition to the accident, which “had aggravated her pre-existing conditions and worsened them.” Dr. Rodriguez also testified that Ms. Levy’s complaints of neck and back pain became regular after the accident, whereas there were , none prior. Dr. Barcyzk further attributed the disc pathology in her neck and back to the accident. However, he did state his understanding that Ms. Levy had fully recovered from , her injuries caused by the 1988 accident. Similarly, Dr. , Voorhies 11Rattributed her . present condition to the accident, but he relied on Ms. Levy’s statement that she was “nonsymptomatic” up until the date of the accident.

' Defendants did stipulate to the authenticity of the medical records and the $44,828.99 billed, but reserved their right to challenge whether the bills were necessitated by the accident. Defendants did indeed make such a challenge through their own expert testimony. Dr. Charles Bain, admitted as an expert in injury causation analysis, accident reconstruction and occupant kinematics, and biomechan-ics, agreed with defense counsel that this was a minimal accident. He also disputed Ms. Levy’s account of how her body moved within the vehicle at the time of the collision, and suggested that the force was so minor as to cause no injury at all, let alone significant injury aggravating Ms. Levy’s pre-existing degenerative condition. Dr. Awasthi also testified that Ms. Levy’s MRIs taken soon after the accident revealed no acute injury. Rather, the MRIs, in his opinion, revealed “wear and tear” that occurred over time, and that everything in the MRIs appeared to be degenerative in nature. Most importantly for the defense, he testified that her issues could have been aggravated by the trauma of the accident, but that such aggravations “tend to wean off ... within about six weeks to two months.” Based on such testimony, defense counsel suggested in closing that Ms. Levy was entitled to $7,443.95, the total medical expenses for the two-month period after the accident.

There is a lack of evidence that Ms. Levy incurred any of the expenses in bad faith. Moreover, the jury’s award of $14,000 in past' medical expenses is | ^inconsistent with defense counsel’s suggestion that two months’ worth of medical expenses only amounted to $7,443:95. Therefore, this Court is unable to determine the specific expenses for which the jury intended to compensate Plaintiffs. Since Plaintiffs provided adequate proof of all expenses incurred in good faith by Ms. Levy, we find that the jury committed manifest error iri not awarding the full amount in question, and/or the district court committed legal error in not charging the jury on the law relative to iilcur-ring medical expenses in good faith.

HARMLESS ERROR ANALYSIS

This Court has explained harmless error as follows:

An error is harmless when the verdict is “surely unattributable to the error.” State v. Williams, 05-318, p. 4 (La.App. 5 Cir. 1/17/06), 921 So.2d 1033, 1036. “The test to be applied is whether the error was likely to have affected the final outcome of. the trial so that it is reversible error instead of mere harmless error.” Smith v. Travelers, Ins. Co., 418 So.2d 689, 695 (La.App. 4th Cir. 1982) (Garrison, J., dissenting), rev’d on other grounds, 430 So.2d 55 (La.1983).

Johnson v. Mike Anderson’s Seafood, Inc., 13-0379 (La.App. 4 Cir. 6/11/14), 144 So.3d 125, 132. In conducting a harmless error review, we look at the totality of the record. See Richardson v. Richardson, 07-0430 (La.App. 4 Cir. 12/28/07), 974 So.2d 761, 772. In that regard, this court has previously reasoned:

[Tjhe cumulation of trial judge errors in evidentiary rulings, coupled with other improper circumstances occurring at trial, may be so prejudicial as to deprive the parties of a fair trial, and thus may constitute reversible error, even if none of the errors considered alone would be sufficient to rise to the level of reversible error.

Fromenthal v. Delta Wells Surveyors, Inc., 98-1525, p. 3 (La.App. 4 Cir. 10/4/00), 776 So.2d 1, 4 (citing Dixon v. Winn-Dixie Louisiana, Inc., 93-1627 (La.App. 4 Cir. 5/17/94), 638 So.2d 306, 312).

In sum, we conclude that the trial court erred in denying Plaintiffs’ motion in li-mine as to evidence of passive income and granting Defendants’ motion for a Undirected verdict regarding future medical expenses. Individually, these errors might rise to nothing more than harmless error. However, when taken together, and in addition to the failure to advise the jury that Ms. Levy could be compensated for the full extent of her past medical expenses incurred in good faith, we find that these errors were not harmless and warrant reversal and remand for a new trial.

In reaching this conclusion, we find the trial erred when it denied Plaintiffs’ motion in limine as to passive income. As a result, Defendants were allowed to reference this information throughout the trial. We further find that the trial court’s manifestly erroneous decision in granting and maintaining a directed verdict regarding future medicals—despite admitting its doubts as to whether it was properly granted—also affected the outcome of the trial; Specifically, after hearing from multiple witnesses and reviewing evidence of Ms. Levy’s future prognosis, the jury wás deprived of the ability to consider such damages, despite evidence of the potential future costs reflected in Dr. Murphy’s billing-statements. Finally, the trial court’s failure to instruct the jury on the law regarding past medical amounts resulted in a verdict unsupported by the record.

For the foregoing reasons, we believe that the cumulative effect of these errors impacted the verdict to such an extent that they cannot be described as harmless. Therefore, we reverse the jury’s verdict and remand this matter for a new trial.

REVERSED AND REMANDED

BELSOME, J„ CONCURS WITH REASONS

LANDRIEU, J., DISSENTS WITH. REASONS ■

LEDET, J., DISSENTS WITH REASONS

BELSOME, J.,

CONCURS WITH REASONS

hi concur with the majority opinion, but write separately to further discuss the trial court’s granting of the directed verdict on the issue of future medical expenses. I find that the error so tainted the litigation process, that the only remedy available to this Court is to remand the case for a new trial. I recognize that in cases where the future medical expenses have been excluded by a trier of fact, the Louisiana Supreme Court has directed appellant courts to examine the record and use the evidence presented to arrive at a minimum amount of future medical expenses that reasonable minds could not disagree with. See Stiles v. K Mart Corp., 597 So.2d 1012 (La. 1992). However, I do not find that method equitable in this case.

Here, we do not have a situation where the trier of fact rejected the award of future medical expenses. Instead, we have the trial court erroneously eliminating the element of damages from the jury’s deliberations. Under this scenario, we cannot find that the impact of the error is corrected by awarding some minimum amount of future medical expenses. It is inconceivable to suggest that acknowledging the need for future medical treatment, and awarding expenses for such treatment would not also have a direct impact on the general damages award.

For these reasons, I find the only just result is to remand for a new trial.

LANDRIEU, J.,

DISSENTS WITH REASONS

hi dissent for the reasons assigned by Judge Ledet.

LEDET, J.,

DISSENTS WITH REASONS '

[because I would amend and affirm as amended the trial court’s judgment, I dissent from the majority’s decisión to reverse and to remand for a new trial. In support of its decision to remand, the majority finds the trial court committed the following three legal errors: (i) denying Plaintiffs’, pre-trial motion in limine tp exclude evidence of passive income; (ii) granting Defendants’ motion for a partial directed verdict on future medical expenses; and (iii) failing “to advise the jury that Ms. Levy could be compensated for the full extent of her past medical expenses incurred in good faith.” The majority acknowledges that none of these three errors alone would be sufficient to warrant a remand for a new trial. Taken together, however, the majority finds that these three errors are not harmless'and thus warrant reversing and remanding for a new trial. I disagree.

My dissent has two parts. Part one explains my disagreement with the majority’s finding of three legal errors warranting a reversal and a remand, for a new-trial. Part two explains why I would amend and affirm as' amended the trial court’s judgment. ’

I.

As noted, the majority finds the trial court legally erred in three respe'cts. I separately address each alleged error.

Motion in limine as to passive income

Pre-trial, Plaintiffs filed a motion in li-mine seeking to exclude, ampng other things, reference at trial to “Darlene Levy’s real estate holdings, stock holdings, including any income or revenue of any kind relating to plaintiffs other business interests or wealth.” Following a hearing, the trial court denied the motion in limine as to these matters, which the Plaintiffs later labeled as “passive income.” At the hearing, the trial court concluded that Defendants were entitled to “use [Ms. Levy’s] other sources of income,” but admonished Defendants that it did. not want them “to reference her wealth.” In its December 1, 2015 written reasons for judgment, the trial court reasoned as follows:

' Ms. Levy is seeking to recover significant damages for lost wages/income, both past and future. Trial is scheduled to take place on January 19, 2016, and thus far, the only evidence plaintiffs have provided in support of their claims for economic loss are income tax returns and the report of plaintiffs’ expert, Shael N. Wolfson, Ph.D. Defendants have repeatedly sought additional documentation in support of the plaintiffs’ claims for lost income but have been unsuccessful in their efforts.
Relevant evidence is “any evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Louisiana Code of Evidence art. 401. Generally, all relevant evidence is admissible at trial. Louisiana Code of Evidence art. 402.
The basis of a claim for loss of income in a delictual action is not limited to a comparison of what the plaintiff earned before the incident and what the plaintiff earned after the incident. Rather, loss of earning capacity is the basis for assessing loss of wages. Folse v. Fakouri, 371 So.2d 1120 (La. 1979). The Louisiana Fourth Circuit has expounded on this theme [in ... Finnie v. Vallee, 620 So.2d 897, 900-01 (La. App. 4 Cir. 1993)].
|sThis Court believes that Ms. Levy’s ability to earn income from other businesses may be probative of the extent to which the accident sued upon affected her loss of earning capacity. Therefore, plaintiffs’ motion in limine is denied.

From this interlocutory ruling, Plaintiffs filed an application for supervisory writ. On January 15, 2016, a divided panel of this court denied the writ insofar as it sought review of the trial court’s denial of Plaintiffs’ “motion in limine to exclude evidence of her [Ms. Levy’s] passive or unearned income.” Levy v. Lewis, 15-1303 (La. App. 4 Cir. 1/15/16) (unpub.). The Louisiana Supreme Court likewise denied Plaintiffs’ writ application. Levy v. Lewis, 16-0121 (La. 1/20/16), 182 So.3d 965.

On appeal, Plaintiffs once again contend that the trial court erred in denying the motion in limine to exclude reference to passive income. Defendants counter that the prior writ denial is law of the case. Although I agree with the majority’s holding that the prior writ denial is not law of the case, I disagree with its holding that the trial court erred in denying the motion in limine.

A trial court’s ruling on a motion in limine is reviewed under an abuse of discretion standard. See Joseph v. Williams, 12-0675, p. 10 (La.App. 4 Cir. 11/14/12), 105 So.3d 207, 214 (noting that “[tjhis court reviews evidentiary issues, such as rulings on a motion in limine and exclusion of evidence, under an abuse of discretion standard.”). A motion in limine is a judicial construct—“a motion which |4is not provided for by our Codes, but has come into being by trial practice.” Lenard v. Dilley, 01-1522, p. 8 (La. 1/15/02), 805 So.2d 175, 181 (Kimball, J., concurring). Moreover, a motion in limine is an interlocutory ruling that “can be changed by the trial court during the course of trial, and often reach[es] this court without a developed record upon which to review the trial court’s decision.” Id.

In finding the trial court erred in denying the motion in limine, the majority distinguishes between a lost wages claim and a loss of earning capacity claim. Legally, this is a valid distinction; “[l]oss of earning capacity is not the same as lost wages.” Finnie, 620 So.2d at 900. Factually, Plaintiffs contend that they are asserting solely a lost wages claim. To illustrate, in their proposed jury instruction, which the trial court declined to give, Plaintiffs state:

Plaintiffs personal wealth and passive or unearned income are not relevant to her claim for wage losses. She does not contend that her passive or unearned income from her investments has been impacted by the injuries she suffered in the accident. Her claim is, solely, a claim for wage loss; specifically the wages she has been unable to earn through her labor.

Accepting Plaintiffs’ categorization of their claim as solely a lost wages claim, the majority states that “Plaintiffs’ loss of wage claim arose exclusively from Ms. Levy’s ability to earn wages as an attorney.” Given this categorization, the majority rejects as unpersuasive the trial court’s reasoning that “Ms. Levy’s ability to earn income from other businesses may be probative of the extent to which the accident sued upon affected her loss of earning capacity.” The majority’s premise—that Plaintiffs’ claim is limited to a lost wages claims—is not supported by the record. Indeed, Plaintiffs expressly plead in their petition that both Ms. Levy and her law firm are seeking to recover for her loss of earning capacity. This case thus involves not only a claim for lost wages, but also a claim for loss of earning capacity.

| ^Moreover, Ms. Levy’s lost income claim, as Defendants point out, is based upon her allegations that she is not as active as before the accident, that she is slow to set cases for trial, and that she chooses to settle cases rather than to try them. Given Ms. Levy is not only a lawyer, but also a real estate agent with many real estate holdings and a property manager, Defendants contend that they are entitled to explore whether the accident and the alleged resulting injuries had an impact upon Ms. Levy’s abilities and dealings .with her other business pursuits. If Ms. Levy lost income in her legal practice due to her claims that her injuries from the accident have affected her ability to.practice law effectively, then Defendants contend they have a right to examine how those alleged injuries affected her other business pursuits. According to Defendants, such an inquiry is relevant in examining the basis of Plaintiffs’ economic claim. I find these contentions persuasive.

Indeed, a distinction has been drawn between “active income”—which “encompasses value, compensation, or return grounded in the performance of activity, work, business operation, etc.”—and “passive income”—which “encompasses the return or investment of capital, which involves no action or performance on the part of the investor after the act of investment.” In re Ballard, 238 B.R. 610, 627 (Bankr. M.D. La. 1999). Making the distinction here, -the income Ms. Levy makes from her non-legal business pursuits as a real estate broker and a property manager is not necessarily passive income. Stated differently, her other sources of income are not akin to interest on certificates of deposit or dividends on corporate stock, which require no degree of “no action or performance on the part of the investor.” id. Rather, her other sources of income may include a decree of return grounded in her performance of “activity, work, business operation, etc.” Id. At a minimum, a factual dispute was presented pretrial regarding the passive versus active nature of her other sources of income. The | ^existence of this factual dispute supports the trial court’s denial of the motion in limine to exclude reference to income from Ms. Levy’s other business interests.

Finally, contrary to the majority’s suggestion, the trial court’s pretrial ruling denying Plaintiffs’ motion in limine neither dictated that Plaintiffs introduce Ms. Levy’s tax returns evincing her passive income, nor precluded them from redacting the prejudicial information from those tax returns.' To the contrary, the Plaintiffs opted to introduce Ms. Levy’s tax returns to support their multi-million dollar claim for loss income in Ms. Levy’s legal business. Moreover, as Defendants suggest, by making such a substantial economic loss claim, ■ Plaintiffs put at issue Ms. Levy’s ability to earn income in her other, nón-legal business pursuits. For all these reasons, I cannot conclude that the trial court abused its discretion in denying Plaintiffs’ motion in limine to exclude reference to income from Ms. Levy’s other business interests.

Partial directed verdict as to future medical expenses

The next legal error the majority cites is the trial court’s ruling granting Defendants’ motion for a partial directed verdict on Ms. Levy’s claim for future medical expenses. As this court has noted, “the standard of review for directed verdicts is whether, viewing the evidence submitted, the appellate court concludes that reasonable people could not reach a contrary verdict.” Lott v. Lebon, 96-1328, 96-1329, p. 4 (La.App. 4 Cir. 1/15/97), 687 So.2d 612, 616. A directed verdict should be sustained on appeal when the reviewing court “would find a 'jury verdict in favor of-the party opposing the motion to be manifestly erroneous had the trial judge allowed the case to go to the jury.”’ Wichser v. Trosclair, 1999-1929, 99-1930, p. 6 (La.App. 4 Cir. 2/28/01), 789 So.2d 24, 27. A directed verdict must be reviewed in the light of the applicable substantive law governing the nonmoving party’s claim. See Everhardt v. Louisiana Dep’t of Transp. & Dev., 07-0981, p. 14 (La.App. 4 Cir. 2/20/08), 978 So.2d 1036, 1047.

17The applicable substantive law in this case is the law governing an award of future medical expenses to a tort victim. An award of future medical expenses requires “medical testimony that they are indicated and setting out their probable cost.” Duncan v. Kansas City Southern Railway Co., 00-0066, p. 17 (La. 10/30/00), 773 So.2d 670, 685. “Importantly, future medical expenses must be established with some degree of certainty.” Menard v. Lafayette Ins. Co., 09-1869, p. 13 (La. 3/16/10), 31 So.3d 996, 1006. The record must contain some evidence to support such an award. Molony v. USAA Property and Casualty Ins. Co., 97-1836, pp. 2-3 (La.App. 4 Cir. 3/4/98), 708 So.2d 1220, 1221.

Granting Defendants’ motion for a partial directed verdict, the trial court reasoned that Plaintiffs failed to give “some idea of what [future care] costs.” Finding the trial court legally erred, the majority cites Dr. Murphy’s testimony that Ms. Levy will be “treating with him indefinitely.” The majority notes that Ms. Levy began seeing Dr. Murphy shortly after the accident, that Ms. Levy originally saw him on a monthly basis, and that in the year before trial she only saw him five times. The majority emphasizes that Plaintiffs introduced into the record Dr. Murphy’s medical records, which include three pages of billing statements from May 19, 2011, through December 16, 2015, Those billing statements reflect a total bill of $4,165 and encompass forty office visits. The majority finds this sufficient evidence from which the jury could extrapolate a future medical expenses award.

The majority essentially adopts Plaintiffs’ counsel’s argument before the trial court in opposing the motion for directed verdict, which was as follows:

There definitely was testimony from Dr. Murphy on future prognosis. His recommendation is that Mr. Levy continue to treat with him like she has over the past five years or so. I think that the jury can easily put a number on that because it’s essentially the same thing with him that has been happening for the past five years.

The narrow issue presented is whether the trial court erred in finding that reasonable persons could not have reached a verdict in Ms. Levy’s favor for future I «medical expenses related to her continuing treatment with Dr. Murphy. The record is devoid of an estimate or suggestion of how often such future treatment would be needed and what the cost of such future treatment would be. I disagree with the majority’s finding that Dr. Murphy’s testimony coupled with his three-page billing summary can serve that purpose. Dr. Murphy provided ho estimate as to how often in the future he, or someone else, would see Ms. Levy; instead, Dr. Murphy’s testimony was simply that Ms. Levy will “be seeing somebody indefinitely probably.” Nor could Dr. Murphy testify what his total medical bills to date were for Ms. Levy. The only evidence of the amount of Dr. Murphy’s past medical bills was provided in the form of the three pages of billing statements, which covered a five-year period, forty office visits, and totaled $4,165. Given the evidence presented at trial by Plaintiffs on this issue, I cannot conclude that the trial court legally erred in granting a partial directed verdict on this issue.

Regardless, even assuming the trial court, as the majority holds, erred in granting á directéd verdict oh future medical expenses, this is not a ground for a remand for a new trial. Indeed, the Louisiana Supreme Court has held that an appellate court, in this context, should fix such an award based on the complete record before it. See Stiles v. K Mart Corp., 597 So.2d 1012, 1013 (La. 1992) (remanding to the court of appeal “to fix an award for future medical expenses which the medical evidence established that plaintiff, more probably than not, will be required to incur.”). The proper remedy would be to amend the judgment to award a reasonable sum of future medical expenses. Thus, the trial court’s ruling granting a partial directed verdict on future medical expenses, even if procedurally1 sor substantively erroneous, is not a valid basis for remanding this matter for a new trial.

Jury instruction as to past medical expenses award

The third and final legal error the majority cites is the tidal court’s failure to instruct the jury on the law regarding past medical expenses incurred in good faith. The majority, however, fails to cite any authority, nor could I find any, requiring a jury be instructed on the law regarding recovery of past medical expenses incurred in good faith. This law is simply a jurisprudential principle. See Watson v. Hicks, 15-0046-48, p. 26 (La.App. 4 Cir. 5/27/15), 172 So.3d 655, 675 (holding that “[a] tortfeasor is required to pay the expenses of over treatment or unnecessary medical treatment, ‘unless such treatment was incurred by the victim in bad faith.’ ”). Regardless, Plaintiffs did not raise this issue either in the trial court or in their appellate brief to this court. It is thus inappropriate for us to consider this alleged error as a basis for reversing the trial court’s judgment and remanding for a new trial.

II.

By way of background, I briefly summarize the procedural history of this case. Pre-trial, a motion for partial summary judgment was granted in favor of Plaintiffs—Ms. Levy and her law firm, Darlene M. Jacobs, A Profession Law Corporation—and against Defendants—Ms. Lewis and her employer, Steakhouse New Orleans, L.L.C. Ms. Levy was found free from fault; Ms. Lewis was found solely at fault. Although summary judgment was granted on liability, Defendants’ right to challenge medical causation at trial was reserved. Also pre-trial, several motions in limine were denied, including, as discussed earlier, Plaintiffs’ motion to exclude evidence regarding income from endeavors other than Ms. Levy’s law practice. Progressive, Ms. Levy’s uninsured or underin-sured insurer, also filed a motion for partial summary judgment on Plaintiffs’ bad faith claim. The trial court Imgranted that motion, dismissing the bad faith claim with prejudice. This court granted Plaintiffs’ writ application, in part, “only to amend' the judgment to be a dismissal without prejudice.” Levy v. Lewis, 15-1303 (La. App. 4 Cir. 1/15/16) (unpub.).

A nine-day jury trial was held on the issues of medical causation and the quantum of Plaintiffs’ damage claims. Plaintiffs alleged a significant injury that severely impacted Ms. Levy’s ability to earn a living as a lawyer; Defendants countered that this was a low impact collision that resulted in Ms. Levy sustaining an aggravation of her preexisting conditions and no lost wages or loss of earning capacity. The jury determined that the accident caused Plaintiffs to suffer a total of $61,500 in damages, and the trial court rendered judgment in accord with the jury’s verdict. Unlike the majority, I would affirm that judgment in all but two respects; I would amend the judgment to award all of Ms. Levy’s past medical expenses and to award Progressive the medical payment it made to Ms. Levy. I separately address each of those two issues.

Past medical expenses

At trial, Defendants stipulated that Ms. Levy incurred a total of $44,829 in past medical expenses; however, the jury only awarded $14,000 of those expenses. Although Defendants challenged the extent of Ms. Levy’s injuries, they failed to provide any evidence that the past treatment she received was for injuries not causally related to the accident. Stated otherwise, Defendants failed to introduce any evidence to establish that any of Ms. Levy’s past medical expenses were for treatment of an unrelated condition or were incurred in bad faith. As noted earlier, “[a] tortfea-sor is required to pay the expenses of over treatment or unnecessary medical treatment, ‘unless such treatment was incurred by the victim in bad faith.’ ” 11Hicks, 15-0046 at p. 26, 172 So.3d at 675. Thus, I would amend the trial court’s judgment to award all of Ms. Levy’s past medical expenses.

Medical payments

In its answer to Plaintiffs’ appeal, Progressive requested that this court amend the judgment to reflect a credit or setoff for the $5,000 it paid to Ms. Levy in medical payments. I would grant Progressive’s request.

Summarizing, rather than reverse and remand, I would amend the trial court’s judgment in the following two respects: (i) increase the'past medical expenses award from $14,000 to $44,829; and (ii) award a credit or setoff of $5,000 in favor of Progressive for its medical payments. As amended, I would affirm the trial court’s judgment. For these reasons, I respectfully dissent.

      . We note that during the course of the trial, the parties stipulated to an amount of past medical expenses totaling $41,828.99. However, in their briefs, the parties instead used an amount of past medical expenses totaling $44,828.99.

      . Quoting the Finnie case, the trial court stated:
      • Loss of earning capacity is not the same as lost wages. Rather, earning capacity refers to a person’s potential. Earning capacity is not necessarily determined by actual loss. While the plaintiff’s earnings at the time of the accident may be relevant, such figures are not necessarily indicative of his past or future lost earning capacity. The plaintiff need not be working or even in a certain profession to recover this type of award. What is being compensated is the plaintiff’s lost ability to earn a certain amount, and he may recover such damages even though he may never have seen fit to take advantage of that capacity. Hobgood v. Aucoin, 574 So.2d 344, 346 (La. 1990). The trial court should consider whether and how much the plaintiff’s current condition disadvantages him in the work force. The trial court should thus ask itself what the plaintiff might be able to have earned but for his injuries and what he may now earn given his resulting condition.
      620 So.2d at 900-01.

      . Dissenting from the writ denial, Judge Dy-sart reasoned that ‘'[i]ncome from relators’ real estate holdings and stock holdings or other passive income should not be included in a calculation of the amount of wages relator was allegedly unable to earn.” Levy v.

        Lewis, 15-1303 (La. App. 4 Cir. 1/15/16) (unpub.,) (Dysart, J., dissenting).

      . Dissenting from the writ denial, Justice Hughes stated that he “would grant the writ for the reasons given in dissent by Judge Dysart.” Levy v. Lewis, 16-0121 (La. 1/20/16), 182 So.3d 965 (Hughes, J., dissenting).

      . The petition states that Ms. Levy seeks not only "[p]ast, present, and future lost wages,” but also “[l]oss of earning capacity.” Likewise, Darleen M. Jacobs, A Professional Law Corporation seeks "[l]oss of earning capacity."

      . As a commentator has noted, "[i]t is not clear whether the judge can grant a partial directed verdict, dismissing one of the plaintiffs theories of recovery or elements of damage,” 1 Frank L. Maraist, LA. CIV. L. TREATISE, CIVIL PROCEDURE § 11:8 (2d ed. 2016) (citing Hawthorne v. Southeastern Fidelity Ins. Co., 387 So.2d 26, 33 (La. App. 3d Cir. 1980)). As in Hawthorne, however, the parties do not raise this issue. We thus need not decide it.

      . As to general damages, the jury’s award was broken down into the following categories: $30,000 for physical pain and suffering, past, present, and future; $10,000 for mental anguish and suffering, past, present, and future; and $7,500 for loss of life's enjoyment, past, present, and future. I would find that a review of the record supports those awards. See La. C.C. art. 2324.1 (providing that "[i]n the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury.”). Nor would I disturb the jury's finding that Plaintiffs were not entitled to an award for lost wages or loss of earning capacity.


source: Caselaw Access Project

author: CONERY, Judge.

license: Public Domain

text:
    HIDDEN GROVE, LLC v. Richard BRAUNS and Leslie Brauns
    CA 17-250
    Court of Appeal of Louisiana, Third Circuit.
    05/17/2017

      Patrick J. Briney, Michael Patrick Cor-ry, Briney & Foret, Post Office Box 51367, Lafayette, LA 70505-1367, (337) 237-4070, COUNSEL FOR DEFENDANTS/APPELLANTS: .Richard Brauns, Leslie Brauns
    Gerald Charles deLaunay, Perrin, Landry, deLaunay, 251 La Rue France, Lafayette, LA 70508, (337) 237-8500, COUNSEL FOR PLAINTIFF/DEFENDANT IN RECONVENTION/APPELLEE, Hidden Grove, LLC, COUNSEL FOR THIRD PARTY DEFENDANTS/AP-PELLEES: Jeffrey Mark Gossen, Gerald Millard . Gossen, Jr., Jonathan Webster Burke
    James Lawrence Bullen, Strain, Dennis, Mayhall & Bate, Post Office Box 53319, Lafayette, LA 70505-3319, (337) 237-5900, COUNSEL FOR DEFENDANTS/APPELLANTS: Richard Brauns, Leslie Brauns

      Court composed of John E. Conery, D. Kent Savoie, and Van H. Kyzar, Judges.
   CONERY, Judge.

|,The Plaintiff/Defendant in Reconvention/Appellee, Hidden Grove, LLC, moves to dismiss .the appeal- by the Defendants/Plaintiffs in Reconvention/ Appellants, Richard and Leslie Brauns. F.or the reasons assigned below, we deny-the motion to dismiss.

The instant litigation arises out of the purchase of lots in the Hidden Grove Subdivision. The Braunses purchased Lot 14 of this' subdivision from a third party-unrelated to this litigation. They purchased Lot 15 from Hidden Grove. In association with the purchase of Lot 15, the Braunses were also given a right of first refusal for Lots 16 and 17 of the subdivision by Hidden Grove.

A disagreement arose- regarding the excavation of Lots 16 and 17 by the Brauns-es. They claim that Hidden Grove had agreed to permit them to lower the elevation of Lots 16 and 17 without having to build a -retaining wall at the back of these lots. Hidden Grove contends that the excavation of Lots 16 and 17 were only approved because the Braunses had agreed to build a retaining wall at the back .of these lots.

Hidden Grove filed suit seeking specific performance and damages associated with the removal of the soil from Lots 16 and 17 and the construction of a retaining wall at the back of these lots. Initially, the Braunses answered the suit and filed a reeonventional demand against Hidden Grove raising a claim for damages based on detrimental reliance. The Braunses later amended that reeonventional demand and also filed a third party demand seeking damages against three individuals: Jeffery Gossen, Gerald Gossen, and Jonathan Burke, based on their alleged .actions and agreements with respect to the excavation.

| Jlidden Grove filed a motion for summary judgment seeking dismissal of the claims made by the Braunses in their re- . conventional demand against Hidden Grove based on detrimental reliance. The trial court granted the motion for summary judgment, and a written judgment was signed by the trial court on August 8, 2016. The pertinent part of the judgment reads, “[T]he Reeonventional Demand filed by Defendants, Richard Brauns and Leslie Brauns, -against Plaintiff, Hidden Grove, LLC, be and is hereby dismissed with prejudice.” Notice of the signing of this judgment was mailed to the parties by the district court’s clerk’s office on August 17, 2017. ■■

On October 4, 2016, thé Braunses filed their Motion to Certify Judgment as Final. By a written judgment signed on October 18, 2016, the trial court granted this motion, certifying the judgment of August 8 as final for the reasons set forth by the Braunses in their motion. The district court’s clerk’s office certified that notice of the rendition of this judgment was sent to the parties’ counsel on October 24, 2016.

On, December 28, 2016, the Braunses filed their Motion for Devolutive Appeal. The trial court granted the order of appeal on January 3, 2017. This court lodged the record in this appeal on March 13, 2017. On May 3, 2017, Hidden Grove filed the Motion to Dismiss Appeal sub judice.

- Hidden Grove’s first argument in support of dismissing the Braunses’ appeal is that the appeal is untimely because the appealed judgment falls under the provision. of La.Code .Civ.P. art. 1915(A) such that the delay for applying for a new trial and for seeking an appeal began running when notice was mailed of the August 8 judgment. Alternatively, Hidden Grove contends that even if the judgment had to be designated as final pursuant to La.Code Civ.P. art. 1915(B), the | ^appeal should still be dismissed. First, Hidden Grove asserts that the request for designation of the judgment as final was untimely presented to the trial court. Alternatively to this argument, Hidden Grove argues that the' motion for appeal was not filed within sixty days of the order designating the August 8 judgment as final.

Louisiana Code of Civil Procedure Article 1915 provides:

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or in-tervenors.
(2) Grants a motion for judgment on the pleadings, as provided by Articles 965, 968, and 969.
(3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).
(4) Signs a judgment on either the principal or incidental demand, when the two have been tried separately, as provided by Article 1038.
(5) Signs a judgment on the issue of liability when that issue has been tried separately by the court, or when, in a jury trial, the issue of liability has been tried before a jury and the issue of damages is to be tried before a different jury.
(6) Imposes sanctions or disciplinary action pursuant to Article 191, 863, or 864 or Code of Evidence Article 510(G).
B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the ■claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
14.(2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.
C.If an appeal is taken from any judgment rendered under the provisions of this Article, the trial court shall retain jurisdiction to adjudicate the remaining issues in the case.

In First Bank and Trust v. Proctor’s Cove II, 10-1 (La.App. 5 Cir. 3/16/10), 37 So.3d 1019, writ denied, 10-860 (La. 6/18/10), 38 So.3d 328, the plaintiff brought suit against the defendant based on a promissory note. In response the defendant filed a reconventional demand. The trial court dismissed the reconventional demand on exceptions filed by the plaintiff. When the defendant pursued an appeal from that judgment, the plaintiff moved to dismiss the appeal based on the lack of a designation of the judgment as final pursuant to La.Code Civ.P. art. 1915(B). The appellate court agreed with the plaintiff and dismissed the appeal without prejudice. See also Brown v. Loraso, 11-196 (La.App. 5 Cir. 10/27/11), 77 So.3d 455, and Slack v. Alcor Group, L.L.C., 04-928 (La. App. 5 Cir. 12/3/04), 893 So.2d 101. We agree with the holdings in these cases; therefore, we find that the judgment at issue in the instant case was not subject to an immediate appeal without being designated as final by the trial court’s October 18, 2016 ruling. This holding is made even more reasonable in the instant case where the judgment only dismisses the Braunses’ claims against Hidden Door and leaves undisturbed the Braunses’ claims based on the same allegations against the three third party defendants.

Until the judgment of August 8 was designated final, we also find that a motion for new trial would have been premature. Without a designation of finality pursuant to La.Code Civ.P. art. 1915(B), the ruling was interlocutory. Article | f¡1915(B)(2) specifically states that, lacking a designation, the judgment is not final for purposes of an immediate appeal and the judgment is subject to revision by the trial court. See Hayward v. Hayward, 12-720 (La.App. 1 Cir. 3/18/13), 182 So.3d 966. A motion for new trial can only be filed as to a final judgment and does not lie from an interlocutory ruling. See Carter v. Rhea, 01-234 (La.App. 4 Cir. 4/25/01), 785 So.2d 1022. Furthermore, a motion for new trial filed prior to entry of a final judgment is premature and without legal effect. Bordelon v. Dauzat, 389 So.2d 820 (La.App. 3 Cir. 1980). Accordingly, we find that the delay for seeking a new trial did not begin to run until notice was mailed of the signing of the October 18 judgment designating the August 8 judgment final. When the delays for filing a motion for new trial are added to the sixty days within which a devolutive appeal may be taken, it is clear that the Braunses’ appeal was .timely perfected. La.Code Civ.P. arts. 1974 and 2087.

Finally, we note that Hidden Grove contends that the motion seeking the designation of the judgment as final should itself be held to have been filed untimely. We find no support for such a proposition in the words of La.Code Civ.P. art. 1915, and, to the contrary, find that as this statute is currently worded, Hidden Grove’s suggestion is clearly without merit. Article 1915 not only provides that the judgment rendered pursuant to Article 1915(B) is not final without its being designated as such, Article 1915(B)(2) inferentially provides that review may be sought of any partial judgment not previously designated as final as of the time that a complete adjudication of the action is rendered. See for instance Setliff v. Slayter, 09-817 (La.App. 3 Cir. 8/26/09), 19 So.3d 43. Thus, had the trial court not designated the August 8 judgment final in its October 18 ruling, this judgment could have been appealed whenever a complete adjudication of this faction was rendered, which would have been even later than December 28 when the current appeal was taken.

For the foregoing reasons, we deny the motion to dismiss the appeal.

MOTION TO DISMISS APPEAL DENIED.