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Owens v. Boh Bros. Construction Co.12/10/2003
UNPUBLISHED
AFFIRMED.
The Third-Party Plaintiff, Boh Bros. Construction Co., Inc. (Boh Bros.) appeals a judgment dismissing its claim for contribution against Lake Charles Memorial Hospital (LCMH) and James Landreneau, pursuant to a jury verdict finding no breach of the applicable standard of care in its treatment of Robert Owens.
This case was previously before this court on appeal of a grant of an exception of no cause of action, which was overturned on appeal. At that time, this court outlined the underlying facts of the case as follows:
On November 6, 1989, Robert Owens, an employee of Boh Bros. Construction Co., Inc. ("Boh Bros.") was injured while working as a member of the crew on a Boh Bros. barge. Mr. Owens' injuries were the result of a fall from a boat ramp. Following the accident, Mr. Owens sought medical treatment for pain in his left shoulder. On January 18, 1990, Mr. Owens underwent surgery at Lake Charles Memorial Hospital ("LCMH") to repair a torn rotator cuff in his shoulder caused by his accident. The shoulder was successfully repaired; however, Mr. Owens allegedly suffered severe injuries during his hospitalization, including a ruptured disk and partial paralysis.
Mr. Owens originally filed suit in Civil District Court for the Parish of Orleans against Boh Bros. and the owner and operator of the boat ramp. On October 30, 1991, Boh Bros. initiated a medical malpractice action in the form of a third- party demand against LCMH, Anesthesia Associates, Dr. Patrick Walken and James Landreneau. In its third-party demand, Boh Bros. sought complete indemnification, or, alternatively, contribution for the claims asserted by Mr. Owens against Boh Bros. Boh Bros. has since voluntarily dismissed Dr. Walken from the litigation.
On June 4, 1996, Robert and Ethel Owens and Boh Bros. executed a settlement agreement settling their claims for a total payment of $671,732.84. As part of this settlement, the original Plaintiffs were assigned Boh Bros.' third party rights against the LCMH, Anaesthesia Associates, Inc., and Landreneau. Pursuant to the settlement agreement, the third- party claim was to be prosecuted by plaintiffs counsel in the name ofBoh Bros. Boh Bros. is to receive the first $225,000.00 of any recovery, and the parties are to share in any recovery over $225,000.00. In accordance with the settlement agreement, Mr. Owens' attorney continued to prosecute Boh Bros. third- party demands in the name of Boh Bros.
Owens v. Boh Bros. Const. Co., Inc., 01-0952, pp. 1-2 (La.App. 3 Cir. 2/6/02), 816 So.2d 311,312, writ denied, 02-0675 (La. 5/31/02), 817 So.2d 93.
This court found that the third party claim by Boh Bros. against LCMH stated a cause of action. As a result, this court reversed the judgment of the trial court and remanded. Upon remand, the matter was tried in November 2002, more than ten years after the shoulder surgery, by a jury which returned a verdict in favor of the LCMH and against Boh Bros., finding no breach of the applicable standard of care. Boh Bros. appeals assigning the following errors:
A. The Trial Court erred in failing to instruct the jury on res ipsa loquitur and in improperly instructing the jury as to the applicable burden of proof.
B. The Trial Court erred in giving multiple duplicative instructions on the plaintiff s burden of proof so that the instructions, as a whole, were unbalanced and prejudicial.
C. The Trial Court erred in excluding the testimony by an economist on Mr. Owens' past and future lost of income.
D. The Trial Court erred in denying plaintiffs motion to amend the pleadings to seek pre-judgment in
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