Kirk v. Newton

380 So.3d 252

David L. KIRK and I. B. Logistics, Inc., Appellants

v.Ashley Nicole NEWTON, Appellee

NO. 2021-CA-00684-COA

Court of Appeals of Mississippi.

04/04/2023

Rehearing Denied August 15, 2023

HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, HON. WINSTON L. KIDD, JUDGE

ATTORNEYS FOR APPELLANTS: KEITH D. OBERT, WILLIAM F. BROWN, Ridgeland, GEORGE MARTIN STREET JR., Jackson, ROBERT S. MINK

ATTORNEYS FOR APPELLEE: JAMES W. NOBLES JR., Jackson, EDWARD BLACKMON, BRADFORD JEROME BLACKMON, Canton

EN BANC.

LAWRENCE, J., FOR THE COURT:

¶1. Ashley Newton filed a complaint against David Kirk and I.B. Logistics Inc. for injuries she sustained in a collision between her vehicle and a trailer being pulled by Kirk and owned by I.B. Logistics. After both sides presented evidence concerning competing contentions as to the other being at fault for the collision, a Hinds County Circuit Court jury returned a verdict for Newton in the amount of $1,759,094.30 for compensatory economic damages and $1,000,000.00 for non-economic damages, for total damages in the amount of $2,759,094.32. Kirk and I.B. Logistics appeal, arguing they are entitled to judgment as a matter of law or a new trial. They contend the jury’s verdict is not supported by substantial evidence, was against the overwhelming weight of the evidence, or was the product of bias, passion, or prejudice. Additionally, they claim that they are entitled to a new trial because Newton’s damages experts allegedly used improper data and methodology to calculate her wage-earning capacity and the amount of future lost wages that she would incur and because Newton mentioned her lack of insurance in front of the jury. After review, we find no error that necessitates reversal of the jury’s verdict and affirm.

FACTS

¶2. On August 22, 2017, at a point on U.S. Highway 49 approximately 0.6 of a mile north of its intersection with Castle Chapel Road, Newton was seriously and permanently injured as a result of an automobile accident. The accident occurred between the 2006 Nissan Altima automobile Newton was driving and a Big Tex automobile-hauler trailer being towed behind a 2015 Dodge 3500 Ram Truck owned by I.B. Logistics and driven by Kirk. The Mississippi Highway Patrol and the Yazoo County Sheriff's Office investigated the accident and assisted at the accident scene. Newton was airlifted from the scene to the University of Mississippi Medical Center in Jackson, where she underwent numerous surgeries.

¶3. In October 2017, Newton filed a complaint against Kirk and I.B. Logistics (hereafter, at times, collectively referred to as Kirk) alleging that "Kirk, suddenly, without any signal or warning" caused the "truck and trailer" he was driving to drift over and "into her lane in front of her causing the front of her automobile to strike the rear of the Big Tex car hauler trailer." She alleged that as a result of Kirk’s negligence, she suffered a fractured cervical vertebra in two places, a fractured right hip and right knee at the patella, compound fractures of the tibia and fibula, a fractured right foot and ankle, and fractures of her sternum. Newton alleged in her complaint that those injuries caused her to incur medical expenses that totaled at least $240,000.00 and added that medical expenses were still ongoing. Newton also alleged in her complaint that at the time of the collision, she was pregnant with an unborn child and that as a result of the "trauma sustained," the unborn child died. She included a wrongful-death claim on behalf of the child and claimed damages for the child and the $2,500.00 dollars in medical bills to remove the deceased child from her body.¹

¶4. Kirk and I.B. Logistics filed separate answers in response to the complaint but were represented by the same attorney. They both denied liability for causing the accident and alleged that Newton "was negligent in failing to exercise reasonable care" and that her negligence "was the sole proximate cause of all injuries and damages sustained as a result of the collision."

¶5. A trial was held in September 2020. Newton called a total of eight witnesses to testify about the accident and her damages. The first witness was Deputy Edward Ferrell. Deputy Ferrell testified that he was employed with the Yazoo County Sheriff’s Office and responded to the accident scene. Deputy Ferrell noticed the compound fracture of Newton's lower leg and said that she appeared to be in severe pain. He also ensured the scene was cleared of other vehicles to allow a lifeflight helicopter enough area to land. Deputy Ferrell testified he saw "skid marks" in both the right-hand lane and the left-hand lane. He stated, "[The marks] started in the right lane and came to rest where the car was across both lanes." He emphasized again that the skid marks "started in the right lane." He added the truck and trailer were about "a quarter of a mile" down the road from where Newton’s vehicle came to rest. Finally, Deputy Ferrell admitted on cross-examination that he did observe a garbage can on the "right-hand shoulder of the road."

¶6. Kirk, the driver of the truck and trailer testified twice in the trial. First, he was called as an "adverse" witness by Newton. During that testimony Kirk testified at the time of the accident he was working for I.B. Logistics as a driver who transported automobiles. On the day of the accident, he had dropped off an automobile in Cleveland, Mississippi, and he first indicated he was on his way to his home but then admitted he was on his way to Jackson. He was on Highway 49 when the accident occurred. Kirk indicated he and Newton were both in the left-hand lane when the accident happened and he had seen her seconds before the accident when he looked in his rearview mirror.² Kirk testified that he noticed a garbage can in the road, slowed down to about "30, 35" miles per hour and Newton "swerved to the right" and struck the rear right side of his trailer. Kirk and Newton provided very different versions of exactly what happened to the jury. Also, they each called other witnesses to bolster their version.

¶7. Newton testified that she was in the right-hand lane from the red light she stopped at before the accident. Newton testified that she proceeded down the road after the red light and stayed in right-hand lane the entire time until Kirk pulled over into her lane causing her to strike the rear of his vehicle. She testified she never saw the brake lights or a turn signal activate on the trailer Kirk was towing prior to the accident to indicate he was going to come from the left-hand lane into the right-hand lane. She described the wreck as follows:

On the way work going down 49 he passed me. When he passed me — I’m sure he didn’t see me, but when he passed me he jumped over in my lane. It happened so quick. I was trying to go to the left. But when I went to the left I hit the back of his trailer. We stopped. I guess when he felt the hit, he stopped.

And when he stopped he jumped out of his truck went to the back of the truck, and I thought he was fixing to leave because when he went to the back of his truck he was connecting something or fixing something, hooking something back up. So he jumped back in the truck and pulled the truck all the way down the highway.³

Newton explained that Kirk was "halfway" in her lane and that she only left her lane of travel "when I turned to try to miss" him.

¶8. Newton described her injuries at trial. She testified she fractured numerous places in her body including, her right femur bone, her right hip, her right knee, the bones in her lower right leg and her right ankle, and her sternum.

¶9. Newton then called Corey Freeman, a Yazoo County deputy sheriff at the time of the wreck, to the stand to testify. While waiting for the ambulance to arrive, Deputy Freeman attempted to calm Newton by preventing her from seeing her injuries. Once the ambulance arrived, it was determined that she needed to be airlifted to the University of Mississippi Medical Center in Jackson, Mississippi.

¶10. Newton played Dr. Matthew Graves’s deposition for the jury. Dr. Graves testified that he reviewed Newton’s "records from University of Mississippi Medical Center beginning on August 22, 2017 and continuing until January 10, 2018." He stated Newton had sustained severe injuries resulting from the accident and he had conducted "an orthopaedic and neurologic exam of her lower extremities." Based on his review of Newton’s medical history and examination of her accident-related injuries, he concluded that "[s]he’s los[t] 71 percent of the use of her right leg" which was a loss of 28% to the body as a whole in permanent impairment. He also testified that Newton

will most likely need a repeat total knee arthroplasty and each time she has surgery she will need approximately 36 sessions of physical therapy after each surgery. She will also need Opioids postoperatively … two blood tests, a CBC and a comprehensive metabolic panel annually at least once a year for the rest of her life. She needs equipment to include but not limited to custom shoes, a cane, support stockings, a transfer tub bench and safety bars in her bathroom, and she will need eight to sixteen hours of assist for the rest of her life.

He also testified that based on his "knowledge, training and experience in the field of physical medicine and rehabilitation," Newton would not be able to go back to performing the work she did prior to the injuries, home healthcare nursing, and Newton "can do sedentary work. That’s the only thing she can do. She’s limited to sedentary activities."

¶11. Newton then called Dr. Howard Tuck Katz, an expert in physical medicine and rehabilitation, to the stand. Dr. Katz performed an independent medical exami- nation on Newton. Based on the physical examination of Newton and the medical records, Dr. Katz determined that the car wreck caused an ankle fracture, multiple femur fractures, a meniscus tear, and a sternal fracture....