Opinion
Civ. No: 98-2757, SECTION: "J" (5).
February 24, 2000.
Before the Court is plaintiff's Motion in Limine to Exclude Economic Testimony Based on Net Wages (Rec. Doc. 56). Defendant opposes the motion. The motion is now before the Court on briefs.
In the motion, plaintiff moves the Court to preclude the introduction of the part of defense expert Kenneth Boudreaux's report which calculates plaintiff's claim for loss of earnings using net wages because under Louisiana law only gross wages are used in calculating damages for lost wages. Defendant counters that, because the Louisiana Supreme Court has not definitively ruled whether damages should be calculated using gross or net wages, the jury should be allowed to consider damage calculations using both gross and net wages.
"In order to determine state law, federal courts look to final decisions of the highest court of the state. When there is no ruling by the state's highest court, it is the duty of the federal court to determine as best it can, what the highest court of the state would decide." Transcontinental Gas Pipe Line Corp. v. Transportation Ins. Co., 953 F.2d 985, 928 (5th Cir. 1992). Without guidance from the state supreme court, the federal district court's review of state law becomes analogous to an intermediate state appellate court, where it is not bound by other state appellate court decisions, but "will not disregard them `unless convinced by other persuasive data that the highest court of the state would decide otherwise.'" Id. (quoting West v. American Telephone Telegraph Co., 311 U.S. 223, 237 (1940));see also Comm'r of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465 (1967).
In this case, Louisiana's intermediate appellate courts have spoken with near unison that only gross wages, not net wages, should be considered by the jury in reaching any determination for damages. See Marcel v. Tenneco Oil Co., 11 F.3d 563, 571 (5th Cir. 1994) ("The majority rule in Louisiana is that the remedy for past and future wage loss in personal injury actions is gross, pre-tax wages."); Harris v. Tenneco Oil Co., 563 So.2d 317, 325 (La.App. 4th Cir. 1990) ("We are satisfied that the more equitable rule is to use gross wages [in calculating lost wages]."); Schwamb v. Delta Air Lines, Inc., 516 So.2d 452 (La.App. 1st Cir. 1988) (same); LeBleu v. Dynamic Industry Constructors, Inc., 526 So.2d 1184 (La.App. 3d Cir. 1988) (same); Riley v. Winn-Dixie Louisiana, Inc., 489 So.2d 931 (La.App. 5th Cir. 1986) (same). Indeed, the only state circuit which does not exclusively use gross wages for damages calculation nonetheless finds it acceptable. See Green v. Farmers Ins. Co., 412 So.2d 1136, 1142 (La.App. 2d Cir. 1982) ("[T]here is no `right' formula for establishing past and future lost earning capacity, while net wages are sometimes used, the use of gross income is also appropriate."). Therefore, defendant's position that the jury should be presented with dual calculations for damages is against the overwhelming weight of Louisiana law. Accordingly,
IT IS ORDERED that plaintiff's motion is GRANTED. Defendant is precluded from submitting testimony or portions of Boudreaux's report using the net wages calculation for lost wages damages.
MINUTE ENTRY McNAMARA, CHIEF JUDGE FEBRUARY 23, 2000