BARBER BROTHERS CONTRACTING COMPANY LLC v. CAPITOL CITY PRODUCE COMPANY LLC FRANK CUSHENBERRY AND XYZ (2025)

The objective of appellate review of general damages is to determine whether the factfinder abused its much discretion in making an award. Abuse can occur if an award is insufficient or excessive. In Pete we observed that “[t]he inherently subjective nature of the abuse of discretion standard in the context of reviewing general damage awards compels that some measure of objectivity be incorporated into the determination of an award's reasonableness, so that there is some standard for comparison.” Pete v. Boland Marine and Manufacturing Company, LLC, 2023-0170 (La. 10/20/23), 379 So. 3d 636, 639. Prior to Pete, the abuse of discretion inquiry started by answering whether the award “shocks the conscience.” If not, the inquiry ended. That proved to be no standard at all.

Pete adopted a two-step process to determine abuse of discretion. First, considering “the particular injury to the particular plaintiff under the particular circumstances,” the appellate court accumulates prior “truly similar” cases. If the award under review is “greatly disproportionate” to those past awards, an abuse of discretion is identified. See Reck v. Stevens, 373 So. 2d 498, 501 (La. 6/25/79). Then, the second step requires considering those prior awards to determine “the highest or lowest point which is reasonably within that discretion.” Jones v. Market Basket Stores, Inc., 2022-0841 (La. 3/17/23), 359 So. 3d 452, 464.

Prior awards do not alone determine the award in a case under review. But, they do provide an objective reference for determining the highest or lowest award that is not “greatly disproportionate” to past awards. That is, the award that is reasonable given the particular injury to the particular plaintiff under the particular circumstances.

Consistent with my votes in Pete, Barber I, and Barber II, I vote to grant rehearing. Barber Brothers Contracting Company LLC v. Capitol City Produce Company, LLC, 2023-0788 (La. 6/28/24), 388 So. 3d 331 (“Barber I”); Barber Brothers Contracting Company, LLC v. Capitol City Produce Company, LLC, 2023-0788 (La. 12/19/24), 397 So. 3d 404 (on rehearing) (“Barber II”). I do not believe Barber II needed to, nor does it in fact, clarify Pete or Barber I. The dissenters in Pete and Barber I did not disagree with the analytical framework for reviewing a general damage award. They disagreed with reducing the particular awards in those cases (In Pete the general damages were reduced from $9,800,000.00 to $5,000,000.00. In Barber I the general damages were reduced from $10,750,000.00 to $5,000,000.00.). The new majority in Barber II used the same analytical framework created and applied in Pete and Barber I. That majority simply concluded that the award reduced in Barber I should not be reduced. I disagree with that, thus, would grant rehearing. But, the statement in Barber II that rehearing is granted to clarify Pete is wrong, nothing is clarified. And the suggestions in the additional concurrence to the rehearing denial to Barber II, that in Barber II we suddenly recognized both the extent of the injuries and that it is a jury award, is misleading. We knew the extensive and debilitating injuries in Barber I, recited them in the opinion and, after exhaustive analysis, reset the award to $5,000,000.00. Likewise, we were aware a jury award was being reviewed. That does not change the analysis. It is the “factfinder” award being reviewed. I would grant rehearing.

CRAIN, J., would grant and assigns reasons.