Crowder v. Ingram Barge Co.

681 S.W.3d 641

Daniel CROWDER, Respondent,

v.INGRAM BARGE COMPANY, LLC, Appellant.

No. ED 111416

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: October 31, 2023

Motion for Rehearing and/or Transfer to Supreme Court Denied

December 18, 2023

Application for Transfer Denied

January 30, 2024

Appeal from the Circuit Court of St. Louis County, 20SL-CC01975, Honorable Kristine A. Kerr, Judge

FOR APPELLANT: Robert T. Adams, Jennifer J. Artman, Taylor B. Markway, 2555 Grand Blvd, Kansas City, Missouri 64108.

FOR RESPONDENT: Patrick K. Bader, Jacob C. Murov, 230 S. Bemiston, Suite 1401, Clayton, Missouri 63105.

Before Lisa P. Page, P.J., Gary M. Gaertner, Jr., J., and Angela T. Quigless, J.

Lisa P. Page, Presiding Judge

Ingram Barge Company, LLC (Ingram) appeals from the trial court’s judgment entered upon a jury verdict in favor of Daniel Crowder (Crowder) on his claims against Ingram for negligence under the Jones Act,¹ unseaworthiness, maintenance, and cure under general maritime law. We affirm.

Background

While working on a vessel, Crowder fell and injured his right knee in the course of his employment with Ingram. He filed a three-count petition against Ingram for his injuries. Following trial, a jury returned a verdict in the amount of $3,325,000.00, but assessed twenty-five percent fault to Crowder. The tried court accordingly reduced the jury’s award and entered judgment in his favor of $2,493,750.00. Ingram appeals.

Discussion

Ingram asserts five points on appeal. Points one through four allege the trial court erred in admitting the testimony of Dr. Rebecca Summary (Dr. Summary), a forensic economist who testified on behalf of Crowder regarding his economic loss as a result of the knee injury. In point one, the basis for this claim is that she impermissibly substituted an "invented" variable of "offset earnings," which rendered her opinion unreliable and inadmissible. In its second point, Ingram argues Dr. Summary’s pre-injury earnings were improperly calculated based on speculation. Points three and four assert Dr. Summary’s testimony was inadmissible because she relied on unsupported assumptions of impairment. In the fifth and final point on appeal, Ingram argues the trial court erred in denying its motion for remittitur because the jury’s award exceeded fair and reasonable compensation for Crowder’s knee injury.

Points I-IV

Each of Ingram’s first four points on appeal claim that Dr. Summary’s testimony at trial was improperly admitted. Prior to trial, Ingram filed a motion in limine seeking to exclude her testimony regarding Crowder’s alleged losses arising from impaired earning capacity. In its motion, Ingram claimed Dr. Summary’s methodology was "flawed" and her opinions lacked evidentiary support. The trial court denied Ingram's motion in limine.

Standard of Review

[1–3] The. decision to admit or exclude an economic expert’s testimony is a matter within the discretion of the trial court and we will not interfere absent an abuse of that discretion. Robinson v. Empiregas Inc. of Hartville, 906 S.W.2d 829, 842 (Mo. App. S.D. 1995). Crowder argues Ingram’s claims on appeal have not been properly preserved for our review because Ingram only requested a "continuing objection" at the start of Dr. Summary’s testimony and raised no further objection. We agree the grant of a motion in limine is interlocutory and subject to change at trial. Id. at 840. However, in order to minimize interruption during Dr. Summary’s testimony, the trial court allowed Ingram a continuing objection to her testimony on the grounds asserted in the motion in limine. It is upon those grounds Ingram now claims Dr. Summary’s testimony was inadmissible. Thus, Ingram sufficiently preserved the issues for appeal.

Analysis

[4] Each of Ingram’s arguments in points one through four concern the admissibility of Dr. Summary’s trial testimony which is governed by Section 490.065 RSMo (Supp. 2017).² Pursuant to the statute, the trial court is required to determine whether (1) the expert is qualified; (2) the testimony will assist the finder of fact; (3) the testimony is based upon facts or data reasonably relied on by experts in the field; and (4) the facts or data upon which the expert relies are otherwise reasonably reliable. Kivland v. Columbia Orthopaedic Group, LLP, 331 S.W.3d 299, 310-11 (Mo. banc 2011); Section 490.065. We do not find any abuse of discretion in the admission of Dr. Summary’s testimony. Ingram does not dispute Dr. Summary was qualified to testify. Her testimony would assist the trier of fact. The facts and data she relied upon in making her calculations, which included tax returns, documentation from Ingram regarding its rates of pay, published growth rates, and other federal data, were both reasonably relied upon by experts in her field and otherwise reliable. See Doe v. McFarlane, 207 S.W.3d 52, 62 (Mo. App. E.D. 2006).

[5–7] If the trial court determines the expert’s testimony meets the statutory requirements discussed above, the trial court must admit the testimony in a "straightforward" application of the statute. Kivland, 331 S.W.3d at 311. While the trial court is required to ensure the statutory factors are met, the court does not have to assess the degree to which they are met. Id, If the expert is sufficiently qualified, as in this case, the decision to accept his or her analysis of the facts and data is for the jury to decide. Id.

[8–10] A plaintiff may prove resulting loss of time and consequently earnings and may recover for the loss of future earnings due to impairment to the plaintiff’s earning capacity. Messina v. Prather, 42 S.W.3d 753, 764 (Mo. App. W.D. 2001). In order to recover for such losses, a plaintiff must present evidence of value that is reasonably certain and not speculative. Id. However, we recognize that inevitably there is a degree of speculation required to determine the present value of wages the plaintiff may have earned but for the injury. Robinson, 906 S.W.2d at 842 (citing Sampson v. Missouri Pacific RR. Co., 560 S.W.2d 573, 589 (Mo. banc 1978)). Any alleged weakness in the expert’s conclusions goes to the weight of the evidence, and not the admissibility. Kivland, 331 S.W.3d at 311 (internal citations omitted).

"Offset Earnings"

[11] In point one on appeal, Ingram claims Dr. Summary included an "invented" variable of "offset earnings" in her calculation of Crowder’s post-injury earning capacity. During her testimony, Dr. Summary explained she was asked to calculate Crowder’s economic loss as a result of his knee injury. She testified her assessment of his lost earning capacity included three different estimations of what he would have earned over his lifetime. She evaluated multiple factors, including his reported income from his employment with Ingram, his potential for promotions throughout his career, different retirement ages, as well as income earned from self-employment during times he was not on a vessel. Dr. Summary used Crowder’s self-employment income, which she referred to as "offset income," to calculate the income he would have continued to earn in the future to offset the loss of employment with Ingram. She worked from the assumption that Crowder would have continued employment at some form of "side job." Dr. Summary explained that in making the calculation, she took his current earnings, minus the amounts earned from other employment, or "side jobs," and used the difference as "offset income," which Crowder could continue to earn in the future. For example, in 2019, Crowder’s self-employment income was $36,766. She used this higher number of income, minus the lowest number earned in 2018, which was $15,175, to arrive at an estimated amount of income of $21,591 that Crowder could be expected to earn from self-employment in the future.

This calculation was supported by substantial evidence, including Crowder’s tax returns and his own testimony regarding his employment history. The tax returns reflected income earned from employment other than with Ingram, and Crowder’s testimony corroborated this. During his time off the vessel, he would work in farming and earn additional income. Since leaving Ingram, he has also done work with his bulldozer, started a small meat packaging business, and sold insurance, making income from each of those jobs. There was a reasonable basis in the evidence to support the amount Dr. Summary used to "offset" his loss of earning capacity. See Messina, 42 S.W.3d at 765. Dr. Summary’s inclusion, regardless of the term she used, of additional or "offset" income to calculate Crowder’s potential post-injury earning capacity was not based on pure speculation, and the trial court did not err admitting Dr. Summary’s testimony at trial.

Pre-Injury Earning Capacity

[12] In its second point, Ingram argues Dr. Summary’s assumption that Crowder would have advanced to a higher position within Ingram was based on "nothing but speculation." However, there was substantial evidence regarding Crowder’s career prospects at Ingram. Crowder himself testified he considered his work for Ingram a career and a "calling." He had been promoted from his entry level position and progressed to a senior position on the deck as a mate. His goal was to move into the wheelhouse and ultimately become a captain. The progression from a deck position into the wheelhouse required an employee to become a steersman first, then advance to pilot, and then to captain. In order to become a steersman, an employee Was required to obtain a license from the Coast Guard and complete the steersman program. Crowder had begun the process to obtain his license and gain acceptance to the steersman program when he was injured, and testified it took approximately two years to advance from steersman to pilot. He believed it was Ingram’s philosophy as a company to promote from within and he had no doubt he would have worked his way into the wheelhouse.

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