Kristyn LANDRY

v.

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, Ceva Logistics U.S., Inc. and Jeremiah Ethan Rodney

NO. 22-CA-593

|

December 13, 2023

ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT, PARISH OF ST. CHARLES, STATE OF LOUISIANA, NO. 81,003, DIVISION “C”, HONORABLE CONNIE M. AUCOIN, JUDGE PRESIDING

Attorneys and Law Firms

COUNSEL FOR DEFENDANT/APPELLEE-2ND APPELLANT, JEREMIAH ETHAN, RODNEY Rachel G. Webre

COUNSEL FOR DEFENDANT/APPELLANT, CEVA LOGISTICS US, INC., Raymond C. Lewis, Joseph L. McReynolds

COUNSEL FOR PLAINTIFF/APPELLEE, KRISTYN LANDRY Matthew D. Hemmer, Terry B. Loup, Przemek M. Lubecki

Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst, and Scott U. Schlegel

Opinion

WINDHORST, J. *1

**1 In this personal injury action, defendants/appellants, CEVA Logistics U.S., Inc. and Jeremiah Ethan Rodney, appeal a March 24, 2022 judgment in favor of plaintiff/appellee, Kristyn Landry, for $10 million dollars in exemplary damages.¹ For the following reasons, we affirm the award of exemplary damages against Mr. Rodney in favor of Ms. Landry, vacate the award of $10 million dollars, and render judgment awarding exemplary damages to Ms. Landry in the amount of $ 1.5 million dollars. We reverse the March 24, 2022 judgment to the extent it imposes vicarious liability for the exemplary damage award against CEVA.

PROCEDURAL HISTORY

This lawsuit involves a multiple-vehicle accident in which an 18-wheeler tractor-trailer driven by Mr. Rodney struck Ms. Landry’s vehicle on March 17, 2015. At the time of the accident, Mr. Rodney, a CEVA employee, was driving an 18-wheeler eastbound on Highway 90 in St. Charles Parish. As he approached a traffic signal on Highway 90, he collided with two vehicles, one of which was Ms. Landry’s vehicle. After striking the two vehicles, Mr. Rodney veered into the oncoming westbound lane of Highway 90 and collided with a third vehicle.

On February 4, 2016, Ms. Landry filed a petition for damages against Mr. Rodney, CEVA and National Union Fire Insurance Company of Pittsburgh, seeking compensatory damages for her injuries and exemplary damages. Ms. Landry sought exemplary damages under La. C.C. art. 2315.4, asserting that Mr. Rodney was driving while under the influence of Xanax, cocaine, and/or other drugs, and that this was the cause in fact of the accident.

On February 13, 2019, CEVA filed a motion for partial summary judgment, asserting that it cannot be held vicariously liable for any exemplary damages which **2 may be awarded against Mr. Rodney. The trial court granted this motion for partial summary judgment, ruling that CEVA, as Mr. Rodney’s employer, cannot be held vicariously liable for exemplary damages awarded against him. On appeal, this court reversed the trial court’s judgment granting partial summary judgment, ruling that an employer may be liable for exemplary damages awarded against an employee under La. C.C. art. 2315.4, where the evidence shows that the employer contributed to or might have prevented the employee from driving while intoxicated. Landry v. National Union Fire Ins. Co. of Pittsburg, 19-337 (La. App. 5 Cir. 12/30/19), 289 So.3d 177, writs denied, 20-160 (La. 3/16/20), 370 So.3d 736 and 20-188 (La. 5/1/20), 295 So.3d 945. (“Landry-1”).

Ms. Landry’s claims proceeded to trial before a jury on March 21-24, 2022. After a four-day trial, the jury found that (1) Mr. Rodney was at fault in causing the accident and that his fault was the legal cause of Ms. Landry’s injuries; (2) Mr. Rodney was intoxicated / impaired while operating a motor vehicle, which was a cause in fact of Ms. Landry’s injuries; (3) Mr. Rodney acted with wanton or reckless disregard for the rights and safety of others; and (4) that CEVA Logistics US, Inc., contributed to or might have prevented Mr. Rodney from driving while impaired. The jury awarded Ms. Landry $2,468,784.65 in compensatory damages, which included $18,784.65 in past medical expenses and $450,000.00 in future medical expenses. The jury further awarded $10 million in exemplary damages against Mr. Rodney and CEVA. Appellants moved for judgment notwithstanding the verdict in three separate motions regarding the compensatory damage award, the exemplary damages award, and CEVA’s liability for the exemplary damages award. The trial court denied appellants’ motions, and specifically stated relative to the exemplary damages award as follows:

*2 **3 The court does not find that a $10 million award in this case for exemplary damages shocks its conscience, nor should it have shocked a jury’s conscience in this matter. The potential harm in this case was exponential. There is not a dollar amount this court could place on the potential harm that could have happened if it had been a school bus instead of Ms. Landry and the other two drivers who were involved, who finally stopped this catapult of an impaired driver behind an 18-wheeler.

This appeal followed.

THE EVIDENCE

CEVA’s Pre-Hire Evaluation of Mr. Rodney

CEVA had multiple employees testify regarding the evaluation process for hiring drivers. The testimony established that CEVA follows the regulations set forth in the Federal Motor Carrier Safety Act (“FMCSA”) to evaluate whether an applicant is a qualified driver. Ms. Rhonda Bateman² testified that after a driver candidate completes an application for employment, CEVA (1) runs reports to investigate the candidate’s driving record; (2) investigates the driver’s previous employment history, criminal history³, and whether the driver has any previous drug and/or alcohol history; and (3) conducts pre-employment drug testing.

On May 13, 2013, Mr. Rodney completed an application for employment with CEVA. He identified Swift Transportation, Blue Flash Express, VIP International, and Dependable Source Temporary Services as his previous employers. When he applied to work at CEVA, Mr. Rodney was employed by Dependable, which provided temporary drivers to companies, and was already driving as a leased driver for CEVA via Dependable. Mr. Rodney drove the same route as a leased driver for CEVA that he did when he was directly employed by CEVA.

**4 In its pre-hire evaluation of Mr. Rodney, CEVA investigated his background through the following: (1) searched the national motor vehicle records, the commercial driver’s license (“CDL”) records, social security network records, state and national criminal and court records, nationwide Drive-a-Check (“DAC”) database, and the period of service drug and alcohol database; (2) contacted three of Mr. Rodney’s previous transportation employers; (3) performed a search of available records and databases regarding Mr. Rodney’s drug and alcohol testing and accident history for three years prior to his applying CEVA; and (4) obtained the negative results of a drug test administered on September 28, 2012 by Mr. Rodney’s prior employer, and administered a drug test on October 28, 2013, which returned negative.

Mr. Rodney’s motor vehicle records indicated he had a valid CDL, with no moving violations, no accidents, and no drug-related incidents. CEVA confirmed that Mr. Rodney did not have a CDL in another state within the previous three years.

In reviewing information to determine whether Mr. Rodney had any criminal background history, CEVA discovered that he had a pending charge from November 2010 for possession of a controlled substance. After further inquiries, CEVA learned that Mr. Rodney had been charged with possession of Diazepam and Xanax, but had completed a pre-trial diversion program, was never charged, and the case was dismissed.⁴ Ms. Bateman explained that this prior arrest did not disqualify Mr. Rodney as a driver under the FMCSA or with CEVA because there was no conviction, it occurred before he held a CDL, did not involve a motor vehicle of any kind, and did not render him medically unfit under the FMCSA.

*3 CEVA also ordered Mr. Rodney’s DAC employment history file and checked the DAC database, which typically contains information from companies regarding dates of employment and other miscellaneous information, such as driving school **5 records and drug and alcohol testing about particular drivers. Mr. Rodney’s DAC report confirmed that he previously worked for Swift Transportation in 2011 and Blue Flash Express in 2012.

Swift terminated Mr. Rodney due to an unsatisfactory safety record, which was based on Mr. Rodney having two minor traffic incidents in two months. The accidents were not U.S. Department of Transportation (“DOT”) recordable accidents because they were not severe accidents. A non-DOT recordable accident means the driver was not cited or towed, no one was transported from the scene of the accident with injuries, and it did not involve a hazardous material load. Blue Flash terminated Mr. Rodney for failing to report an accident, which was also a non-DOT recordable accident. Ms. Bateman testified that these circumstances did not render Mr. Rodney unfit for driving for CEVA or under the FMCSA.

As required by the FMCSA, CEVA requested employment verification from three of Mr. Rodney’s previous transportation employers, Dependable, Swift, and Blue Express. CEVA obtained verbal verification of Mr. Rodney’s employment with Dependable by phone, and learned that Mr. Rodney had no drug or alcohol related issues and no accidents. CEVA also attempted to verify Mr. Rodney’s employment with Blue Flash and Swift by phone, fax, and mail, but neither responded.

In evaluating Mr. Rodney for employment, CEVA confirmed that Mr. Rodney had not tested positive for controlled substances in the last three years. After he submitted his application, on October 28, 2013, Mr. Rodney submitted to a DOT five-panel drug test via a urine specimen without prior notice. He tested negative for Amphetamines, Cocaine, Marijuana, Opioids, and Phencyclidine.

Ms. Bateman testified that CEVA’s drug testing protocols adhere to the FMCSA, but that the DOT five-panel drug test does not provide for testing of Xanax. Specifically, FMSCA 49 CFR § 40.82 mandates testing for (a) Marijuana **6 metabolites; (b) Cocaine metabolites; (c) Amphetamines; (d) Opioids; and (e) Phencyclidine (PCP), and prohibits testing for substances not in the DOT five-panel.⁵

Ms. Bateman explained that under the FMCSA, a driver is medically unfit to drive only for using a Schedule I drug/substance identified in 21 CFR § 1308.11, which does not include Xanax or Paxil.⁶ The FMCSA states that a driver can operate a commercial motor vehicle while using drugs in other Schedules listed in 21 CFR 1308 (which includes Xanax) when the “use is pursuant to the instructions of a licensed medical practitioner…who is familiar with the driver’s medical history and has advised the driver that the substance will not adversely affect the driver’s ability to safely operate a commercial motor vehicle.”⁷ Because Xanax (alprazolam) is a Schedule IV drug under 21 CFR 1308.14(c), a driver who is under a doctor’s care and prescribed Xanax can obtain doctor certification to be qualified to operate a commercial motor vehicle. The record indicated Mr. Rodney had utilized this procedure before driving for previous employers, but did not with CEVA because he did not inform CEVA of his prescription medications.

*4 As required by the FMCSA, on October 28, 2013, CEVA sent Mr. Rodney for a medical exam by a medical professional to determine if he met the fitness qualifications for a CDL. At this examination, Mr. Rodney did not disclose his long-standing treatment for depression, anxiety, or the prescribed medications for those disorders, which would have included Xanax and Paxil. CEVA would typically obtain a medical examination report from this exam, and it would include relevant protected medical information of their potential hires or drivers, alerting CEVA to any “red flags.” Because the medical examination report for Mr. Rodney did not indicate his history of depression, anxiety, or prescription medication, when CEVA **7 hired Mr. Rodney, it believed that Mr. Rodney had no medical issues and was not taking any medications.

Mr. Rodney’s Employment with CEVA

At trial, there was testimony from CEVA employees regarding training for new employees. Ms. Bateman testified that although CEVA intends for their new drivers to be refreshed and retrained, Mr. Rodney was not an entry-level driver, implying that the training may not have been imperative. Mr. Rodney testified that when he began driving for CEVA, “David” rode with him for about three days and trained him on how to drive the route. Mr. Rodney admitted that he did not complete the initial computer training, which was not drug-related, because he did not have a computer.

There was also testimony and other evidence related to Mr. Rodney’s failure to turn in his daily driving logs, which are required to show how much time is spent driving within a 24-hour period. Ms. Landry introduced into evidence documentation indicating that CEVA’s scanning service for driving logs had not received 140 daily driving logs from Mr. Rodney. At trial, Mr. Rodney testified that he was not aware that 140 of his daily driving logs were missing. He admitted, however, that at one point his supervisor informed him that he needed to turn in his driving logs or he would not be able to drive. Mr. Rodney testified that he used the fax machine at his church to fax his driving logs to CEVA so that he could continue driving. He stated that he kept his driving logs in his truck, and that he often forgot to turn them in because he had to fax them. Ms. Bateman explained that the driving logs may have been missing because, at the time, CEVA was transitioning into a new process for the submission of driving logs, and was experiencing administrative problems with data being input into the electronic system. Elizabeth Prasek, who was responsible for overseeing driver’s logs, testified that Mr. Rodney’s manager had difficulties in getting driving logs from the drivers in other states. Ms. Prasek **8 and Ms. Bateman testified that missing driving logs did not equate to an indication that the driver’s performance was deteriorating or a sign of drug or alcohol activity by the driver.

According to the evidence and testimony, during the sixteen (16) months of Mr. Rodney’s employment, Mr. Rodney did not inform CEVA of his prescription medication use, CEVA did not learn of Mr. Rodney’s prescription medication, and Mr. Rodney did not have any drug or alcohol-related incidents. Mr. Rodney also did not have any accidents while driving for CEVA prior to the accident in this case involving Ms. Landry. Ms. Bateman explained that CEVA randomly drug tests its drivers, but that Mr. Rodney was not tested during his employment.

Mr. Rodney’s History of Drug Use

At trial, Mr. Rodney testified that he suffered from anxiety and depression since childhood. He testified that he started taking Xanax for his anxiety and depression without a prescription because he was embarrassed to tell his doctor about his issues. In November 2010, he was arrested for possession of Xanax because he did not have a prescription. He was not convicted, and the charges were dismissed because he completed a pre-trial diversion program. After the arrest, he went to Dr. Donald Doucet for medical treatment.

*5 Dr. Doucet first prescribed Mr. Rodney Xanax and Paxil in March of 2011. Mr. Rodney testified that the Xanax and Paxil alleviated his anxiety and depression-related symptoms, as well as his high blood pressure. Because he intended to seek employment as a commercial driver, he consulted with Dr. Doucet as to whether he would be able to take his medications and drive an 18-wheeler. Dr. Doucet informed him that he could drive an 18-wheeler while taking his medication.

In 2011, Mr. Rodney began employment with Swift Transportation, and completed training to obtain a CDL. When he started driving for Swift, he informed Swift that he was taking Xanax and Paxil. As a result, he had to obtain certification **9 from Dr. Doucet that he met the medical standards of the FMCSA to operate a commercial motor vehicle. Mr. Rodney testified that he worked for three employers before CEVA, and that Dr. Doucet approved him to drive a commercial motor vehicle for all three.

Mr. Rodney testified that during the application process with CEVA, he did not believe it was necessary to inform CEVA of his use of Xanax and/or Paxil because Dr. Doucet had approved him to operate commercial motor vehicles on three previous occasions. In addition, at the time, he was already driving for CEVA as a leased driver via Dependable. Mr. Rodney had submitted to a drug test for Dependable, and the results were negative.

Mr. Rodney further testified that in the weeks leading up to the accident he was dealing with significant personal and marital problems. At some point before the accident, his wife had left him, taken their son with her, and was staying in California. Mr. Rodney stated that he was severely depressed and anxious about the situation and the safety of his son.

The Day of the Accident

Rochelle Touchard testified that on the morning of March 17, 2015, while driving to work on Highway 90 near Hahnville High School, she saw an 18-wheeler that was weaving in and out of lanes. She observed the driver of the 18-wheeler from her vehicle and noticed that he was swaying back and forth as if he may fall asleep and/or was impaired. Because she feared the driver of the 18-wheeler would cause an accident, she called 911 at 7:28 A.M. to report the driver. During the 911 call, Ms. Touchard informed the operator that the driver of an 18-wheeler, who appeared “half-drugged,” was swerving in and out of lanes, that she was concerned he was going to cause an accident, and that he was driving a CEVA truck.⁸ At trial, Ms. Touchard identified Mr. Rodney as the driver of the 18-wheeler.

**10 According to Mr. Rodney’s testimony, on Tuesday, March 17, 2015, he began his driving route for the day at 1:00 A.M. Mr. Rodney testified that right before the accident occurred, he leaned over to his right because he heard a noise, but that it was difficult to see anything on the side of the truck because it did not have front mirrors. He stated that the sun was in his eyes, and when he turned back, there were two cars stopped in front of him at a traffic light. He explained that he thought, if he slammed on the brakes, the truck may jackknife, and cause the trailer to “run over those people” and “kill them.” Instead, he decided the best thing for him to do was to try to veer off the road into the ditch. However, as he approached the traffic signal on Highway 90 where Ms. Landry’s vehicle was stopped, he collided with her vehicle and another vehicle, and then veered into the oncoming westbound lane of Highway 90 and collided with a third vehicle.

*6 Louisiana State Trooper Ronald Reggio testified that he responded to the collision, investigated it, and conducted a field sobriety test on Mr. Rodney. When he spoke to Mr. Rodney at the scene of the accident, Mr. Rodney’s words were mumbled and low, and his demeanor was calm and relaxed. Trooper Reggio placed Mr. Rodney in the back of his unit while he investigated the collision.

Before conducting the field sobriety test, Trooper Reggio asked Mr. Rodney whether he had taken any drugs. Mr. Rodney responded that he was on physician-prescribed Xanax, and he had last taken it the night before on March 16, 2015. According to Trooper Reggio’s testimony, Mr. Rodney had trouble following directions and balancing during the field sobriety test. Trooper Reggio testified that Mr. Rodney did not perform well on the horizontal gaze nystagmus test, the walk-and-turn, or the one-leg stand.⁹ Because Mr. Rodney performed poorly on these **11 tests, Trooper Reggio arrested him for suspicion of driving while intoxicated, reckless operation and vehicular negligent injury. After he failed the field sobriety test and was under arrest, Mr. Rodney informed Trooper Reggio that he took a Xanax shortly after the accident because the situation was overwhelming.

After his arrest, Mr. Rodney refused to sign the advice of rights for a breathalyzer and a blood test. As a result, Trooper Reggio sought and obtained a court-ordered warrant for a blood test. Trooper Reggio transported Mr. Rodney to have his blood drawn, and the blood test was completed at 1:24 P.M. on the same day as the accident. A video from a camera in Trooper Reggio’s patrol unit was introduced into evidence, showing that, on the car ride to have his blood drawn, Mr. Rodney was swaying side to side for no apparent reason. Trooper Reggio testified that he found Mr. Rodney at fault for causing the collision.¹⁰

During his trial testimony, Mr. Rodney acknowledged that he failed the field sobriety test. Because of the accident, Mr. Rodney pled guilty to first degree vehicular negligent injury and was sentenced to three years with the Department of Corrections. Mr. Rodney’s sentence was deferred, he was placed on two years active probation, and he was ordered to attend substance abuse treatment. He received a $500.00 fine and was assessed the costs of the criminal prosecution. Mr. Rodney’s driver’s license and CDL were suspended for one year, and a breathalyzer was ordered to be placed in his vehicle once the suspension ended. He completed his probation and satisfied the conditions of his sentence.

*7 **12 Dr. William George, accepted by the trial court as an expert toxicologist and pharmacologist, testified that three drugs were found in Mr. Rodney’s blood, including (1) alprazolam, which is the generic name for Xanax; (2) paroxetine, an antidepressant drug known as Paxil; and (3) benzoylecgonine, a cocaine metabolite. Dr. George testified that Mr. Rodney had 79 nanograms per milliliter of Xanax in his blood, and that this was much greater than the therapeutic range, which is generally between 5 to 50 nanograms per milliliter. Dr. George identified the effects of Xanax at a therapeutic range as sedation, drowsiness, confusion, fatigue, slowed reaction and prolonged reaction time. He stated that the effects on Mr. Rodney would be even greater because of the elevated level of Xanax in his system.

With regard to the Paxil, Dr. George’s testimony indicated that Mr. Rodney had a normal level in his blood at 43.4 nanograms per milliliter, in that Paxil’s therapeutic range is broad, ranging from 2 to 100 nanograms per milliliter. As to the cocaine metabolite found in Mr. Rodney’s blood, Dr. George’s opined that the results indicated Mr. Rodney had used cocaine twelve hours or more before the accident, but that he would not have felt the effects of the cocaine by the time of the accident. Mr. Rodney admitted that he used cocaine on the Sunday before this Tuesday morning accident.

Dr. George opined that the high level of Xanax with the Paxil would increase the effects of sedation, drowsiness, confusion, fatigue, slowed reaction and prolonged reaction on Mr. Rodney’s central nervous system, particularly the sedation and drowsiness. While Dr. George stated that the use of cocaine during an earlier period could have contributed to the fatigue factor, he opined that the level of Xanax and the Paxil produced the most significant effects. As a result, he believed that Mr. Rodney was impaired at the time of the accident by the combination of these two drugs in his system.

During his testimony, Dr. George also addressed whether an individual can drive a vehicle while taking Xanax. He stated that an individual taking Xanax could drive, but that he should be very careful about the effects of Xanax and the potential for an increased likelihood of an accident with Xanax.

**13 Ms. Landry’s Damage and Injuries Caused by the Accident

In the course of the accident, Mr. Rodney struck two vehicles, one operated by Ms. Landry, stopped at a traffic signal in the eastbound lanes of Highway 90, and then his truck veered into the westbound lanes and collided with a third vehicle. Mr. Rodney’s truck side-swiped Ms. Landry’s vehicle, causing damage to the front and rear doors, which cost approximately $10,800.00 to repair.

At the scene of the accident, Ms. Landry told first responders that she was not injured and refused medical treatment. A couple hours later, Ms. Landry went to the emergency room, where she reported mild neck and back pain. A musculoskeletal exam showed that Ms. Landry had no significant abnormalities and had a full range of motion in her extremities. Before she was discharged, Ms. Landry told the attending doctor that her pain had “largely resolved” and was only a 2 out of 10 in intensity.

A few months after the accident, Ms. Landry began treating with Dr. Keith Melancon for reported neck and low back pain. Dr. Melancon ordered cervical and lumbar MRIs, which revealed a mild bulge at C5-C6 and herniated discs at L4-L5 and L5-S1. Dr. Melancon recommended conservative treatment consisting of physical therapy because she was able to live an active and healthy lifestyle in her current condition. Dr. Melancon noted that injections or surgery at the L5-S1 level might be needed in the future. In August of 2015, Ms. Landry returned to Dr. Melancon and reported that the physical therapy helped, and that she had resumed working out and attending Zumba dance classes. In February 2016, Ms. Landry had a routine follow-up with Dr. Melancon and requested another round of physical therapy, which Dr. Melancon agreed would be helpful.

*8 In January of 2021, almost six years after the accident, Ms. Landry’s attorneys sent her to see Dr. Samer Shamieh. During her initial visit, Ms. Landry filled out a form rating her neck and back pain at 5/10 in intensity. Dr. Shamieh performed **14 physical exams of her cervical and lumbar spine and noted that she displayed 5/5 muscle strength and completely normal reflexes. Dr. Shamieh conducted several well-known objective diagnostic tests to investigate Ms. Landry’s pain reports, all of which produced a negative result. Nevertheless, based on the lumbar MRI imaging from 2015, Dr. Shamieh informed Ms. Landry that she would likely need to undergo a L5-S1 laminectomy and fusion in the future.

LAW and ANALYSIS

In this appeal, CEVA and Mr. Rodney challenge the jury’s exemplary damage award. Mr. Rodney asserts that (1) Ms. Landry failed to establish he acted with “wanton or reckless disregard for the rights and safety of others,” as required by La. C.C. art. 2315.4; and (2) the $10 million exemplary damage award is grossly excessive and violates Mr. Rodney’s constitutional rights.

CEVA asserts that an employer cannot be vicariously liable for exemplary damages awarded against its employee under La. C.C. art. 2315.4, and asks this court to reverse its decision in Landry-1. CEVA also challenges the jury’s finding that CEVA contributed or might have prevented Mr. Rodney from driving while intoxicated or impaired, and argues that the jury instructions and jury verdict form misled the jury regarding the law on exemplary damages and constitute legal error.

Both Mr. Rodney and CEVA assert that Ms. Landry’s counsel made numerous improper “conscious of the community” and “golden rule” arguments and comments to the jury, and that these arguments and comments prejudiced them and tainted the trial and the verdict.

Standard of Review

A court of appeal may not set aside a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Under the manifest error standard, a determination of fact is entitled to great deference on review. **15 Wilson v. Canal Ins. Co., 21-676 (La. App. 5 Cir. 11/23/22), 353 So.3d 969, 975. An appellate court, in reviewing a jury’s factual conclusions, must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court’s conclusion, and the finding must be clearly wrong. Kaiser v. Hardin, 06-2092 (La. 4/11/07), 953 So.2d 802, 810. The issue to be resolved on review is not whether the jury was right or wrong, but whether the jury’s fact finding conclusion was a reasonable one. Rosell, 549 So.2d at 844.

Notably, reasonable persons frequently disagree. Peironnet v. Matador Res. Co., 12-2292 (La. 6/28/13), 144 So.3d 791, 817; Guillory v. Lee, 09-75 (La. 6/26/09), 16 So.3d 1104, 1117. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Peironnet, 144 So.3d at 817; Rosell, 549 So.2d at 844. When conflicting testimony is presented at trial, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell, 549 So.2d at 844; Wainwright v. Fontenot, 00-492 (La. 10/17/00), 774 So.2d 70, 74.

Exemplary Damages Against Mr. Rodney

Mr. Rodney contends that the evidence was insufficient to support a finding that he acted with wanton or reckless disregard for the safety of others. Under La. C.C. art. 2315.4, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries. Louisiana courts have held that exemplary damages are authorized when the following elements are established: (1) The defendant was intoxicated or had a sufficient quantity of intoxicants to make him lose normal control of his mental and physical facilities; (2) The impairment was a cause-in-fact of the accident; and (3) The injuries were caused by a wanton **16 and reckless disregard for the rights and safety of others. Selvage v. Robert Levis Chevrolet, Inc., 98-197 (La. App. 5 Cir. 9/16/98), 719 So.2d 1088, 1093, writ not considered, 98-2626 (La. 12/11/98), 729 So.2d 587. A decision to award exemplary damages under Article 2315.4 rests within the sound discretion of the trier of fact. Thistlethwaite v. Gonzalez, 12-130 (La. App. 5 Cir. 12/18/12), 106 So.3d 238, 252.

*9 Evidence of intoxication and evidence of “wanton and reckless disregard for the rights and safety of others” are two distinctly different elements, and should be treated accordingly; i.e., the plaintiff must prove both elements in order to prove entitlement to exemplary damages under La. C.C. art. 2315.4. Bourgeois v. State Farm Mut. Auto. Ins. Co., 562 So.2d 1177, 1184 (La. App. 4 Cir.), writ denied, 567 So.2d 611 (La. 1990). Simple proof that a person was driving under the influence of alcohol and/or drugs, and that he might have been impaired, by itself, will not always be sufficient to establish the “wanton and reckless” element. Id. Courts consider the facts and circumstances of each case, including, but not limited to, the defendant’s level of impairment, evidence of the effect of the drugs or alcohol on the specific defendant, and the consequences of driving while impaired in determining the necessary “wanton and reckless” element. Id.

For conduct to be considered wanton and reckless, the necessary level of conduct is typically somewhere between an intent to do wrong and mere negligence. Blackshear v. Allstate Ins. Co., 94-765 (La. App. 3 Cir. 12/7/94), 647 So.2d 589, 594-95. Actions knowingly taken which would likely cause injury to another fall within this category. Id. Although no specific conduct by the defendant is necessary, a conscious indifference to consequences must be shown. Id. If the defendant knows or should know that his actions will cause harm and he proceeds anyway, there is a conscious indifference to consequences to support finding a wanton or reckless disregard for the rights and safety of others. Id. Based on the following, we find Ms. Landry presented sufficient evidence to show that Mr. Rodney acted with **17 wanton and reckless disregard for the rights and safety of others.

First, the record shows that on the morning of the accident, another driver on the road saw Mr. Rodney driving his 18-wheeler in an erratic manner. Ms. Touchard testified at trial that on March 17, 2015, she was driving on Highway 90 near Hahnville High School, and noticed an 18-wheeler swerving from one lane to another. She testified that because the driver looked like he was about to fall asleep or under the influence, she called 911 to report him. In the 911 call, Ms. Touchard stated that the driver appeared “half-drugged” and was likely to cause an accident. At trial, Ms. Touchard confirmed that Mr. Rodney was the driver of the 18-wheeler she saw that morning.

Second, the investigation of the accident showed that Mr. Rodney was driving in a significantly impaired condition at the time of the accident. Trooper Reggio testified that when he arrived at the scene of the accident, he found Mr. Rodney to be calm and relaxed but his speech was low and mumbled. In addition, Trooper Reggio explained that Mr. Rodney failed the field sobriety test he gave him after the accident because he performed poorly on all three parts of it. Trooper Reggio’s testimony indicated that Mr. Rodney had trouble balancing and following directions during his field sobriety test. As a result, Trooper Reggio arrested him for suspicion of driving while intoxicated, reckless operation and vehicular negligent injury. Trooper Reggio further testified that Mr. Rodney told him before the field sobriety test that he had last taken Xanax the night before, but as he was placing Mr. Rodney under arrest, Mr. Rodney stated that he had taken a Xanax shortly after the accident.

After his arrest, Mr. Rodney refused to submit to a breathalyzer and a blood test. Trooper Reggio obtained a blood draw warrant, pursuant to which he transported Mr. Rodney to have his blood drawn. A video of Mr. Rodney taken in Trooper Reggio’s patrol vehicle during this drive showed that Mr. Rodney was swaying side to side for no apparent reason, displaying the extent of Mr. Rodney’s **18 impaired state the day of the accident. After completing his investigation, Trooper Reggio found Mr. Rodney at fault in causing the accident.

*10 Third, the results of the blood test established the excessiveness to which Mr. Rodney was misusing Xanax while driving an 18-wheeler. Dr. George, the expert toxicologist and pharmacologist, testified that Xanax, Paxil, and a cocaine metabolite were found in Mr. Rodney’s blood. Dr. George also testified that the concentration of Xanax in Mr. Rodney’s blood was much greater than the therapeutic range. Dr. George identified the effects of Xanax taken at a therapeutic range as likely to cause sedation, drowsiness, confusion, fatigue, slowed reaction and prolonged reaction time. He opined that the effects of sedation and drowsiness on Mr. Rodney would be exacerbated because of the elevated level of Xanax in his blood. Dr. George found that the levels of Xanax and Paxil in Mr. Rodney’s blood produced significant effects in terms of sedation, reaction time, drowsiness, and fatigue, and, as a result, that Mr. Rodney was impaired at the time of the accident.

As to the cocaine metabolite found in Mr. Rodney’s blood stream, Dr. George stated that this indicated Mr. Rodney had used cocaine twelve hours or more before the accident. Dr. George explained that although Mr. Rodney would no longer feel the effects of the cocaine under these circumstances, the recent cocaine use could have contributed to Mr. Rodney’s fatigue. Mr. Rodney admitted to taking cocaine on the Sunday before the Tuesday morning accident.

Considering this evidence, we find Ms. Landry established that Mr. Rodney was impaired to the extent that he lost normal control of his mental and physical facilities, and that the impairment was a cause in fact of the accident. We also find ample support for the jury’s conclusion that Mr. Rodney acted in wanton and reckless disregard for the rights and safety of others. The testimony and evidence showed that Mr. Rodney was driving an 18-wheeler, a vehicle that can cause severe harm, in a highly narcotic state of mind, and that his reaction time was significantly **19 impaired. Given the combined levels of drugs in his system at the time of the accident, the extent of his impairment, and his apparent difficulty in staying awake while driving, he placed a substantial number of people at risk by operating an 18-wheeler in his condition.

In addition, Mr. Rodney failed to inform his employer of his prescription medications, despite knowing that specific regulations existed relative thereto. Further, the record shows that Mr. Rodney consumed illegal narcotics while employed by CEVA in violation of CEVA’s policies and the law, comprising his mental condition to an even greater degree. We therefore find no manifest error in the jury’s conclusion that Mr. Rodney’s actions warranted the award of exemplary damages.

Counsel’s Inflammatory Arguments as to Mr. Rodney

Mr. Rodney asserts that the trial court erred in allowing Ms. Landry’s counsel to make inflammatory “conscience of the community” comments as it effectively denied him a fair trial. Mr. Rodney argues that these comments inflamed the passions and prejudices of the jury and instructed them to render a verdict on extraneous factors irrelevant to the merits of the case.

Inflammatory remarks made by counsel in argument which are calculated to appeal to the passions and prejudices of a jury are improper. Reese v. Winn-Dixie of Louisiana, Inc., 542 So.2d 68, 73 (La. App. 3 Cir.), writ denied, 546 So.2d 1218 (La. 1989), and writ denied, 546 So.2d 1222 (La. 1989). Proper exercise of the trial judge’s discretion to allow or disallow argument of counsel is presumed absent a contrary showing. Kelly v. Riles, 99-601 (La. App. 5 Cir. 12/15/99), 751 So.2d 302, 308. The appropriateness of an argument at trial “must be determined in light of the facts of the particular matter, the conduct and atmosphere of that particular trial, and the arguments of opposing counsel.” Abadie v. Metro. Life Ins. Co., 00-352 (La. App. 5 Cir. 4/11/01), 804 So.2d 11, 22-23.

*11 **20 Reversal based on a procedural error is not warranted unless the error harmed or prejudiced the complaining party’s cause. Neumeyer v. Terral, 478 So.2d 1281 (La. App. 5 Cir. 1985), writ denied, 481 So.2d 631 (La.1986). The party alleging error has the burden of showing that the error was prejudicial to his case. Boutte v. Winn-Dixie Louisiana, Inc., 95-1123 (La. App. 3 Cir. 4/17/96), 674 So.2d 299, 305.

In his brief, Mr. Rodney asserts that a number of statements made by Ms. Landry’s counsel were inflammatory, including that (1) “numerous out-of-state trucking companies like CEVA travel the roadways that cross through St. Charles Parish on a daily basis”; (2) “the trucks operated by those companies’ present ‘ever present’ dangers to the members of their community”; “companies like CEVA have different values than their community”; (3) “any of them or their family members could have just as easily been stopped at the red light where the accident occurred and may be involved in a similar accident in the future, unless something is done about it”; (4) “an important purpose of the trial process is to allow the jurors to decide what rules and standards apply to the trucking companies that travel through their community”; (5) “their job as jurors is to act ‘as a sole conscience of this community’ and render a verdict ‘to make sure that this doesn’t happen ever again to anybody ever again’ ”; and (6) “they should use their verdict to send a message to CEVA and any other trucking company that drives through their community.”

We recognize the potentially inflammatory nature of these statements but point out that these statements are primarily directed at CEVA and trucking companies, not Mr. Rodney. Mr. Rodney chose to drive an 18-wheeler in a significantly impaired state, and as a result, caused a multi-vehicle collision, which could have resulted in even more severe damages and injuries. We therefore find the allegedly inflammatory comments and arguments made by Ms. Landry’s counsel did not result in prejudicial error as to Mr. Rodney or deny Mr. Rodney a fair trial.

**21 Jury Instructions and Counsel’s Inflammatory Comments re. CEVA

Similar to Mr. Rodney’s argument, CEVA contends that it was impossible for CEVA to obtain a fair trial given the comments and arguments by Ms. Landry’s counsel to the jury’s passion and local prejudice against trucking companies. CEVA also contends that the trial court failed to properly charge the jury and provided incorrect and misleading jury interrogatories. In particular, CEVA challenges the jury instruction that stated: “CEVA is responsible for exemplary damages with Mr. Rodney only if the evidence shows more probable than not that CEVA contributed to or might have prevented Mr. Rodney from driving while intoxicated.” CEVA argues that the instruction that CEVA “is responsible with” Mr. Rodney for exemplary damages misled the jury to impose additional exemplary damages for CEVA’s separate fault, instead of holding CEVA only vicariously liable for the exemplary damages awarded against its employee.

CEVA further contends that the erroneous “Employer Liability” instruction resulted in legally incorrect jury interrogatories. CEVA specifically refers to Nos. 5 and 7, which over CEVA’s objection, asked the following:

*12 No. 5: Do you find that CEVA Logistics US Inc. contributed to or might have prevented Jeremiah Ethan Rodney from driving while intoxicated / impaired?

If the jury answered yes to interrogatory No. 5, it was directed to bypass interrogatory No. 6 and answer only interrogatory No. 7, which asked:

No. 7: What sum of money do you award as exemplary or punitive damages against Jeremiah Ethan Rodney and CEVA Logistics US Inc.?

CEVA asserts that because “and” is read conjunctively, this question misled the jury into thinking a separate award was permitted against CEVA and should be included with or added to the exemplary damage for Mr. Rodney’s punitive conduct. Thus, CEVA argues that these interrogatories created confusion and misled the jury into returning a verdict that was contrary to the law and evidence.

**22 La. C.C.P. art. 1792 requires the trial court to instruct the jurors on the law applicable to the cause submitted to them. The trial court is responsible for reducing the possibility of confusing the jury and may exercise the right to decide what law is applicable and what law the trial court deems inappropriate. Adams v. Rhodia, Inc., 07-2110 (La. 5/21/08), 983 So.2d 798, 804. Adequate jury instructions are those which fairly and reasonably point out the issues and which provide correct principles of law for the jury to apply to those issues. Id. Ultimately, the determinative question is whether the jury instructions misled the jury to the extent that it was prevented from dispensing justice. Id.; Nicholas v. Allstate Insurance Company, 99-2522 (La. 8/31/00), 765 So.2d 1017, 1023; see also Jones v. Liberty Mutual Insurance Company, 568 So.2d 1091, 1094 (La. App. 5 Cir. 1990), writ denied, 572 So.2d 72 (1991) (reversible error occurs when the jury is misled to such an extent as to prevent it from doing justice).

Because the adequacy of the jury instruction must be determined in the context of the jury instructions as a whole, when small portions of the instructions are erroneous, the error is not necessarily prejudicial. Adams, 983 So.2d at 805. The manifest error standard for appellate review may not be ignored unless the jury charges were so incorrect or so inadequate as to preclude the jury from reaching a verdict based on the law and facts. Id. Thus, on appellate review, the mere discovery of an error in the judge’s instructions does not of itself justify the appellate court conducting the equivalent of a trial de novo, without first measuring the gravity or degree of error and considering the instructions as a whole and the circumstances of the case. Id. When jury instructions are prejudicially misleading, the presumption of regularity afforded a jury verdict is tainted, and the appellate court must undertake a de novo review of the record and implement its own judgment based on the evidence. Baxter v. Sonat Offshore Drilling, Inc., 98-1054 (La. App. 1 Cir. 5/14/99), 734 So.2d 901, 906-07.

**23 As to jury interrogatories, La. C.C.P. art 1812 A provides in relevant part:

[T]he court may submit to the jury written questions susceptible of categorical or other brief answer, or may submit written forms of the several special findings which might properly be made under the pleadings and evidence, or may use any other appropriate method of submitting the issues and requiring the written findings thereon. The court shall give to the jury such explanation and instruction concerning the matter submitted as may be necessary to enable the jury to make its findings upon each issue.

*13 La. C.C.P. art. 1812 B further provides that “[t]he court shall inform the parties within a reasonable time prior to their argument to the jury of the special verdict form and instructions it intends to submit to the jury and the parties shall be given a reasonable opportunity to make objections.”

Jury interrogatories must fairly and reasonably point out the issues to guide the jury in reaching an appropriate verdict. McCarra v. Illinois Central Railroad Co., 01-298 (La. App. 5 Cir. 9/25/01), 798 So.2d 252, 257, writ denied, 01-2845 (La. 1/4/02), 805 So.2d 207. If the verdict form does not adequately set forth the issues to be decided by the jury (i.e. omits an essential legal principle or is misleading and confusing), the interrogatories may constitute reversible error. Murphy v. Jefferson Health Care Center, LLC, 09-304 (La. App. 5 Cir. 10/27/09), 27 So.3d 899, 903. Nevertheless, the law is clear that a verdict may not be set aside unless the verdict form is so inadequate that the jury is precluded from reaching a verdict based on correct law and facts. Thomas v. Department of Wildlife & Fisheries, 18-869 (La. App. 1 Cir. 10/2/19), 289 So.3d 579, 593, writ denied, 19-1767 (La. 1/14/20), 291 So.3d 687. It is only when an appellate court finds that legal error in the instructions or verdict form prejudiced one of the parties that the appellate court should set aside the jury findings and perform a de novo review of the record. Marchetta ex. rel. Marchetta v. CPC of Louisiana, Inc., 99-485 (La. App. 4 Cir. 3/22/00), 759 So.2d 151, 154.

**24 In this case, we find that the jury instructions and jury interrogatories at issue were legally erroneous and confusing to the jury on the issue of CEVA’s vicarious liability for exemplary damages. Furthermore, we find that the erroneous jury instructions and interrogatories coupled with the inflammatory comments and arguments made by Ms. Landry’s counsel prejudiced CEVA and misled the jury to the extent that it prevented the jury from dispensing justice relative to CEVA.

The jury was only instructed that the burden or standard of conduct sufficient to award exemplary damages directly against CEVA was the “contributed to or might have prevented” language set forth in Landry-1 and other law discussed therein. The Employer Liability jury instruction did not explain that CEVA would be held vicariously liable for exemplary damages imposed against Mr. Rodney if it found that CEVA contributed to or might have prevented Mr. Rodney from driving while intoxicated/impaired. In addition, the jury interrogatories confused the jury and led them to believe that exemplary damages could be awarded separately against CEVA for its independent fault, instead of focusing on the punitive conduct of Mr. Rodney.

The jury instructions also did not provide any explanation regarding the level of conduct or knowledge required in order to impose vicarious liability for exemplary damages on CEVA. Because Landry-1 addressed summary judgment rulings and only the issue of whether an employer could be held vicariously liable for an exemplary damage award, this court was not presented with an issue regarding the application of that language. Nonetheless, exemplary damages have historically only been awarded for wanton and reckless behavior. Accordingly, this standard should be considered when determining whether an employer contributed to or might have prevented an employee from driving while intoxicated or impaired.

*14 The record further reflects that Ms. Landry’s counsel made numerous comments and arguments appealing to the jury’s prejudice against trucking companies. The comments by Ms. Landry’s counsel began during voir dire and **25 continued through closing arguments. For example during voir dire, Ms. Landry’s counsel asked “Who here believes that it is not up to people to punish the company, that it is only the government’s job to punish a company?… That it’s not for the court system and for the people in the community to do that, but that it is only the sole job of the government to have an agency or to make a fine or something of that nature.” Counsel further stated “But you’re going to be the boss and you’re going to have to decide whether or not these rules that we talked about are for your community or not.”

During closing, Ms. Landry’s counsel continued to inflame the jury’s prejudice against CEVA by stating, “When you render your verdict, it becomes a verdict on behalf of this community that will reverberate in this community and beyond”; and “You will reach a verdict, and it will be a verdict for this community, for your loved ones, for all time.” ¹¹ Counsel’s strategy to create a prejudice against CEVA as the big trucking company defendant peaked in closing argument where he implored the jury to render a verdict as the “conscious of the community” and accused CEVA of having “different values than this community.”

Considering the above and the record in its entirety, we find the degree of error in the jury instructions and jury interrogatories, coupled with Ms. Landry’s counsel’s appeals to prejudice against CEVA and trucking companies, justifies a de novo review of the record relative to CEVA’s vicarious liability for the exemplary damage award against Mr. Rodney, i.e. the determination of whether CEVA contributed to or might have prevented Mr. Rodney from driving while intoxicated or impaired. Because the jury instruction was to the effect—and misled the jury into **26 believing—that CEVA was independently liable for exemplary damages, this legal error caused the jury to award an amount of exemplary damages directed at both Mr. Rodney and CEVA instead of only Mr. Rodney. Thus, we must also review the exemplary damage award de novo.

CEVA’S Vicarious Liability for Exemplary Damages

Exemplary damages are sums awarded separate and apart from any compensatory or nominal damages, as punishment or deterrence levied because of particularly aggravated misconduct on the part of the defendant. Chauvin v. Exxon Mobil Corp., 14-808 (La. 12/9/14), 158 So.3d 761, 768; Mosing v. Domas, 02-12 (La. 10/15/02), 830 So.2d 967, 978. The basis for the award is the defendant’s motives and conduct, and not the tort or injury itself. Chauvin, 158 So.3d at 768. Thus, the purpose of exemplary damages, given to the plaintiff over and above the full compensation for his injuries, is to punish the defendant, to teach the defendant not to do it again, and to deter others from following the defendant’s example. Id. The plaintiff must show that the danger created by the defendant’s wanton or reckless conduct threatened or endangered the public safety. Rivera v. United Gas Pipeline Co., 96-502 (La. App. 5 Cir. 6/30/97), 697 So.2d 327, 334, writ denied, 97-2030 (La. 12/12/97), 704 So.2d 1196, and writ denied, 97-2031 (La. 12/12/97), 704 So.2d 1197, and writ denied, 97-2032 (La. 12/12/97), 704 So.2d 1197, and writ denied, 97-2034 (La. 12/12/97), 704 So.2d 1197.

*15 Taking into consideration the case law on exemplary damages, we evaluate whether CEVA’s actions or inactions in this case rises to a level sufficient to find that CEVA contributed to or might have prevented Mr. Rodney from driving while intoxicated or impaired sufficient to impose vicarious liability for the exemplary damages awarded against Mr. Rodney on CEVA.

We find CEVA clearly did not contribute to Mr. Rodney’s impairment as there is no evidence it facilitated or provided Mr. Rodney with any of the medications or **27 drugs found in his blood stream. The question therefore is whether CEVA might have prevented Mr. Rodney from driving while impaired. This effectively requires a determination as to whether CEVA knew or should have known that Mr. Rodney was driving while impaired at some point before the accident occurred. Logic dictates that without knowledge of an impairment, there would be no basis upon which to support the conclusion that CEVA might have prevented Mr. Rodney from driving a CEVA truck.

Initially, we recognize the evidence does not reflect that during the 16 months of Mr. Rodney’s employment, CEVA had any knowledge of Mr. Rodney’s use of Xanax or Paxil because Mr. Rodney did not disclose his history of depression and anxiety or his prescription medications at his pre-hire medical exam. In addition, Dr. George’s expert testimony indicated that Mr. Rodney’s use of his Xanax was well beyond the therapeutic range, and that this excessive misuse of Xanax coupled with his use of Paxil caused his elevated impairment. Thus, even if CEVA had known Mr. Rodney was taking prescription medication for depression and anxiety, there is no evidence CEVA could have known Mr. Rodney would misuse it to the extent shown.

The record does not show that CEVA failed to comply with any regulations under the FMCSA regarding the drug testing of Mr. Rodney. When CEVA hired Mr. Rodney, it had two negative drug tests that complied with the FMCSA’s mandatory drug testing procedures, and a certification from one of Mr. Rodney’s prior employers that he had no drug or alcohol related incidents during his employment. DOT’s five-panel drug screen does not permit testing of Mr. Rodney’s prescription medications, Xanax and Paxil. FMCSA 49 CFR § 40.82 expressly prohibits testing for substances, such as Xanax and Paxil, which are not listed therein. Therefore, CEVA could not have obtained knowledge of Mr. Rodney’s prescription medications use within the mandates and prohibitions of federal regulations.

**28 Ms. Landry asserts that CEVA should have known of Mr. Rodney’s drug use because he was arrested and charged with possession of Xanax in 2010. The evidence showed, however, that during the hiring process, CEVA investigated Mr. Rodney’s arrest and found that this charge had been dismissed. We cannot say this arrest was sufficient to alert CEVA of Mr. Rodney’s prescription medications in 2013 or his misuse thereof.

Ms. Landry argues that Mr. Rodney should have been rendered ineligible to drive for CEVA because he was involved in three traffic accidents in the two years prior to working for CEVA. The evidence, however, showed that these accidents were minor, non-DOT recordable, and not reported on his motor vehicle records. There also was no evidence that the accidents were drug-related, or that Mr. Rodney was impaired at the time these accidents occurred. Further, pursuant to CEVA’s FMCSA-compliant policies, these non-DOT recordable accidents did not disqualify Mr. Rodney from operating commercial vehicles under the FMCSA or with CEVA.

*16 Ms. Landry additionally argues that CEVA should not have permitted Mr. Rodney to drive an 18-wheeler because he failed to complete certain training. However, none of the training involved drug-related issues. Moreover, Mr. Rodney testified that he completed the driving training but did not complete the computer training because of limited access to a computer.

Ms. Landry further contends that CEVA should not have permitted Mr. Rodney to continue driving due to his failure to turn in his daily driving logs. While a CDL driver’s responsibility to maintain driving logs is an important safety protocol, the evidence at trial did not indicate that Mr. Rodney’s missing driving logs and his use of his prescription medications were related or should have alerted CEVA to his use or misuse of these medications. Mr. Rodney testified that he often delayed submitting his driving logs because he had to fax them and did not have a fax machine. Ms. Elizabeth Prasek, who was responsible for overseeing driver’s **29 logs, explained that Mr. Rodney’s supervisor had difficulties in obtaining daily logs due to the fact that some drivers, including Mr. Rodney, were not local.

The general public policy in Louisiana is against punitive damages. Chauvin v. Exxon Mobil Corp., 14-0808 (La. 12/9/14), 158 So.3d 761, 768; Ross v. Conoco, Inc., 02-0299 (La. 10/15/02), 828 So.2d 546, 555. Thus, punitive or other penalty damages are not allowed unless expressly authorized by statute. And even when a statute does authorize the imposition of punitive damages, it is strictly construed. Id.

Upon a de novo review of the record in its entirety, and based on the information available to CEVA, we find insufficient evidence to conclude that CEVA contributed to, or knew or should have known and thus might have prevented Mr. Rodney from driving while intoxicated. We therefore decline to hold CEVA liable for the exemplary damage award rendered against Mr. Rodney.

CEVA challenges this court’s decision in Landry-1 and asserts that an employer can never be held vicariously liable for exemplary damages awarded against its employee, and asks that the holding in Landry-1 be set aside. Because we conclude that the evidence did not prove that CEVA contributed to, or should have known and thus might have prevented the accident, and that therefore CEVA is not vicariously liable for the exemplary damages awarded against Mr. Rodney, we pretermit any discussion of CEVA’s arguments relative to whether an employer can under different facts be vicariously liable for exemplary damages.

The Amount of the Exemplary Damage Award Against Rodney

Mr. Rodney claims that the $10 million exemplary damage award violates his due process rights under the U.S. Constitution. As discussed above, having found legal error in the jury instructions and jury interrogatories, we must conduct a de novo review of the exemplary damage award.

Aside from the legal error, we would nonetheless be required to conduct a de novo review of the exemplary damage award under **30 Cooper Industries., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 433-434, 121 S.Ct. 1678, 1685-1686, 149 L.Ed.2d 674 (2001). In Cooper, the United States Supreme Court held that state and federal appellate courts must conduct a de novo review of claims that exemplary damage awards are grossly excessive in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Id. Based on the Cooper decision, the Louisiana Supreme Court has held that when an appellant has properly raised a federal due process claim, the reviewing court must conduct a de novo review of the exemplary damage award, utilizing the three “guideposts” set out in BMW of North America v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). Mosing v. Domas, 02-12 (La. 10/15/02), 830 So.2d 967, 975.

*17 The three BMW “guideposts” for reviewing exemplary damage awards are: (1) the degree of reprehensibility of the defendant’s conduct; (2) the disparity between the harm and/or potential harm suffered by the plaintiff and the exemplary damages award; and (3) the difference between the exemplary damage award and the civil or criminal penalties authorized or imposed in comparable cases. Mosing, 830 So.2d at 973, 978. In evaluating an exemplary damage award, the Louisiana Supreme Court has stated that courts should also consider the wealth of the defendant. Id. at 975, 978. Taking these factors into consideration, we conduct a de novo review of the exemplary damage award.

The reprehensibility of the conduct in question

The first factor to consider in determining whether the amount of exemplary damages awarded is appropriate is the reprehensibility of the conduct in question. The BMW court described the degree of reprehensibility of the defendant’s conduct as “perhaps the most important” of the guideposts to the constitutionality of an exemplary damages award. In re New Orleans Train Car Leakage Fire Litig., 00-479 (La. App. 4 Cir. 6/27/01), 795 So.2d 364, 383, writ denied sub nom. In re New Orleans Car Leakage Fire Litig., 01-2492 (La. 10/14/02), 827 So.2d 411, and **31 writ denied sub nom. In re New Orleans Car Leakage Fire Litig., 01-2493 (La. 10/14/02), 827 So.2d 411.

The purpose of exemplary damages is to punish and deter, and thus the damages should be assessed based on the defendant’s conduct instead of the plaintiff’s injuries, with the “degree of reprehensibility” being the “most important indicium of the reasonableness of a punitive damages award.” BMW, 517 U.S. at 575-76, 116 S.Ct. 1589; Mosing, 830 So.2d at 974. Relevant considerations include the type of injury caused or that could have been caused by the conduct; the defendant’s “indifference to or reckless disregard for the health and safety of others”; and the “probability of recidivism.” Mosing, 830 So.2d at 979-81.

Mr. Rodney’s conduct clearly involves a high degree of reprehensibility. Mr. Rodney consciously chose to drive and operate in a significantly impaired state, an 18-wheeler, a vehicle that presents substantial safety risks, even when properly operated. Mr. Rodney’s operation of this type of vehicle in his extremely impaired condition exposed all the individuals on the road to severe and potentially fatal disaster. Although this accident did not involve any fatalities, it involved four vehicles and multiple individuals, and could have been far more catastrophic.

Also significant is that this accident occurred during the early morning hours when people were bringing their children to school and traveling to work. In addition, Dr. George testified that the level of Xanax in Mr. Rodney’s blood was well beyond the therapeutic range. The evidence showed that Mr. Rodney was so impaired he had difficulty staying awake while driving. Consequently, numerous individuals, particularly children, were placed at risk due to Mr. Rodney driving an 18-wheeler while impaired.

Based on the foregoing, particularly the catastrophic risk associated with Mr. Rodney’s conduct and the extent of his impairment, we find that Mr. Rodney clearly exhibited a reckless disregard for the safety of all those on the roads and highways **32 that he traveled. We therefore find Mr. Rodney’s actions were reprehensible and weigh in favor of a considerable award of exemplary damages to Ms. Landry.

The Ratio of the Exemplary Damages to the Actual or Potential Damage

The second factor to consider in determining whether the amount of exemplary damages awarded is appropriate is the ratio between the exemplary damages and the harm that resulted and/or could have resulted.

*18 Appellate courts have affirmed exemplary damage awards that range from roughly one half of the amount awarded in general damages to several times the amount awarded in general damages. Selvage, 719 So.2d at 1093. Courts have recognized that the intent is not to draw a mathematical bright line between the constitutionally acceptable and the constitutionally unacceptable that would fit every case. In re. New Orleans Train Car Leakage Fire Litig., 795 So.2d at 385. The general concern is the reasonableness of the award in determining whether the award and ratio falls within a constitutionally acceptable range. Mosing, 830 So.2d at 978; Thistlethwaite, 106 So.3d at 266. The Louisiana Supreme Court has held that an award of exemplary damages “must be viewed in its unique context, in light of the facts of the case and with reference to the actual damages awarded and the potential harm that could have resulted from the defendant’s conduct.” Wooley v. Lucksinger, 09-571 (La. 4/1/11), 61 So.3d 507, 635.

Ms. Landry received substantial compensatory damages, particularly general damages. Specifically, the jury awarded Ms. Landry compensatory damages totaling $2,468,784.65, which included $2 million in mental pain and suffering and loss of enjoyment of life; $18,784.65 in past medical expenses; and $450,000.00 in future medical expenses. The high amount of compensatory damages awarded to Ms. Landry goes against the illustrations in Mosing of instances when a higher ratio **33 might be permitted.¹² Nonetheless, the jury’s exemplary damage award was approximately four times the amount of compensatory damages awarded in this case, a large majority of which was general damages.

The record also indicates that four vehicles were involved in this accident, Mr. Rodney’s 18-wheeler and three other cars. The damages and injuries therefore extended beyond Ms. Landry’s damage and injuries. Furthermore, as we have previously noted herein, the damages and injuries could have been much greater, even catastrophic. That notwithstanding, there is no precise formula or ratio that is necessarily proper, and considering that every case has its own unique set of facts and circumstances, the application of a particular formula seems counterproductive.

Accordingly, the second factor, the ratio between exemplary damages and compensatory damages does not necessitate an exaggerated exemplary damage award here.

The Potential Penalties for Comparable Misconduct

The third factor to consider in determining whether the amount of exemplary damages awarded is appropriate is the size of any civil or criminal penalties that could be imposed on Mr. Rodney for comparable misconduct, commonly referred to as “sanctions for comparable misconduct.”

In analyzing this factor, courts have pointed out that while the possible criminal monetary penalty may be significantly less than the exemplary damage award, the fact that the offense carries a term of imprisonment makes the difference in monetary penalties less relevant. Mosing, 830 So.2d at 982; Leary v. State Farm Mut. Auto. Ins. Co., 07-1184 (La. App. 3 Cir. 3/5/08), 978 So.2d 1094, 1102, writ denied, 2008-0727 (La. 5/30/08), 983 So.2d 900. The penalty section of **34 La. R.S. 14:39.2 provides that “Whoever commits the crime of first degree vehicular negligent injuring shall be fined not more than two thousand dollars or imprisoned with or without hard labor for not more than five years, or both.” Thus, the penalty for first degree vehicular negligent injury potentially includes imprisonment, reflecting the seriousness of the offense. Mr. Rodney received a deferred sentence and probation, and thus, avoided imprisonment.

*19 In Thistlethwaite, this court concluded that where the defendant did not receive any significant criminal or civil penalties resulting from his very reprehensible conduct, this factor weighed heavily in favor of a significant award of exemplary damages to the plaintiffs. 106 So.3d at 265.

Mr. Rodney was criminally charged and pled guilty to one count of first degree vehicular negligent injury. He was sentenced to three years imprisonment, but his sentence was deferred and he was placed on two years of active probation, had his license suspended for one year, and was ordered to pay a fine and costs. He has since completed all aspects of his plea agreement. Although Mr. Rodney was criminally penalized, his license was suspended, and he was technically in the custody of the department of corrections, he was not imprisoned. Accordingly, this factor also weighs in favor of a significant award of exemplary damages to Ms. Landry.

The wealth of the defendant

The fourth factor to consider, when possible, in determining whether the amount of an exemplary damage is appropriate is the defendant’s wealth. Mosing, 830 So.2d at 978. The importance of the defendant’s financial situation to the goals of punishment and deterrence is obvious, i.e., what may be an extreme punishment for an impecunious individual defendant may be wholly insufficient to influence the behavior of a prosperous corporation. Id. at 978-79. The defendant has the burden to present evidence regarding the defendant’s wealth for purposes of exemplary **35 damages. Id. at 979.

Here, Mr. Rodney’s financial situation is greatly disproportionate to the jury’s exemplary damage award. Mr. Rodney is a single parent without a college degree and has a low-paying job. Mr. Rodney testified that he earns $14.00 an hour in his part-time position, which equates to about $500.00 per week. Consequently, this factor does not weigh in favor of a significant exemplary damage award.

Upon de novo review evaluating the above factors, we find that Mr. Rodney’s conduct in this case was indeed reprehensible, but given Mr. Rodney’s financial situation, the amount of compensatory damages awarded to Ms. Landry, and other exemplary damage awards under La. C.C. art. 2325.4, we find the $10 million exemplary damage award excessive. We find that an amount less than the jury’s $10 million award would satisfy the objectives of an exemplary damage award: punishment and deterrence.

In determining an appropriate exemplary damage award in this case, we have considered exemplary damage awards in other cases involving intoxicated drivers. Although courts have stated that the amount of exemplary damages should focus on the facts and circumstances of the particular case, we believe a review of other exemplary damage awards is helpful to determine a reasonable award based on the facts and circumstances in this case.

The Mosing Court upheld a $500,000 exemplary damages award against “a shockingly unrepentant recidivist drunk driver who has on more than one occasion displayed a conscious disregard for human life and safety while behind the wheel.” 830 So.2d at 981. After the accident in that case, the defendant “fled the scene on foot” before being caught, and the Court found particularly important that he was “more concerned with escaping the consequences of his outrageous conduct than with attending to the victims” he left in his wake. Id. at 980-81.

*20 **36 In Byuos v. Ebanks, the Louisiana Fourth Circuit Court of Appeals held that a $225,000.00 exemplary damages award against an intoxicated driver was excessive because it would have put enormous financial strain on the defendant and his family. 07-1534, pp 8-9 (La. App. 4 Cir. 5/28/08), 2008 WL 8927872. In Byuos, the plaintiff was awarded $450,000.00 in general damages and $45,211.63 in past medical expenses. The appellate court reduced the exemplary damage award to $50,000.00. Id.

In Thistlethwaite, supra, an intoxicated driver crashed his pickup truck on the interstate and left his truck obstructing a travel lane of the interstate. 106 So.3d at 243-44. An accident involving an 18-wheeler with two passengers in the 18-wheeler’s cab ensued, and resulted in the cab of the 18-wheeler immediately igniting in flames. One of the passengers was in flames as he exited the 18-wheeler, suffered extensive excruciating injuries, and died eight days after the accident from his injuries. Id. The plaintiffs, the deceased passenger’s daughter and the driver of the 18-wheeler, received a total of $3,600,000.00 in compensatory damages. 106 So.3d at 250. This court found the jury’s $25 million cumulative award of exemplary damage excessive and in violation of defendant’s due process rights. 106 So.3d at 266. Upon de novo review, this court awarded the plaintiff’s daughter $3,600,000.00 and the driver of the 18-wheeler $1,500,000.00 in exemplary damages for a cumulative exemplary damage award of $5,100,000.00. 106 So.3d at 268.

In Leary v. State Farm Mut. Auto. Ins. Co., 07-1184 (La. App. 3 Cir. 3/5/08), 978 So.2d 1094, writ denied, 08-727 (La. 5/30/08), 983 So.2d 900, the appellate court upheld a jury award of $1,700,000.00 in exemplary damages against an intoxicated driver. In Leary, the trial court awarded the plaintiffs, the parents whose daughter died in the automobile accident on Christmas Eve, $650,000.00 in survival damages, $900,000.00 in wrongful death damages, and $75,181.90 in hospital, medical, and funeral expenses. Id. at 1097.

**37 Upon de novo review, all factors considered under the particular facts and circumstances of the instant matter, we find that an award of exemplary damages in the amount of $1.5 million dollars to Ms. Landry is appropriate. Although this case did not involve a fatality, the risk of harm created by Mr. Rodney operating an 18-wheeler in his impaired state was substantial, thereby reflecting that a considerable award is appropriate. Mr. Rodney exhibited a disregard for the safety of others by not disclosing his prescription medications to CEVA and misusing those medications to the extent shown while operating an 18-wheeler on a regular basis. Nonetheless, while Ms. Landry underwent medical treatment, the treatment has involved a very conservative program of primarily physical therapy with no surgery. In addition, the evidence did not show that Mr. Rodney had any previous accidents in which he had been found to be driving while impaired. He also accepted responsibility for his actions in this matter and plead guilty to one count of first degree vehicular negligent injury. Accordingly, we find that an award of $1.5 million dollars sufficient to satisfy the objectives of an exemplary damage award, punishment and deterrence, in this matter.

DECREE

For the reasons stated herein, we affirm the jury’s finding that an award of exemplary damages should be rendered in favor of Ms. Landry and against Mr. Rodney. Upon de novo review, we render judgment awarding exemplary damages in the amount of $1.5 million dollars to Ms. Landry and against Mr. Rodney. We reverse the trial court’s judgment to the extent it imposes liability on CEVA for the exemplary damage award.

*21 AFFIRMED IN PART; REVERSED IN PART; RENDERED IN PART

SCHLEGEL, J., CONCURS WITH REASONS

While I concur with the majority’s decision to reverse the award of exemplary or punitive damages against Mr. Rodney’s employer, CEVA, I respectfully disagree with the majority’s reasons.

An employer cannot be held vicariously liable for punitive damages imposed against its employee pursuant to the plain language of La. C.C. art. 2315.4.¹ It is a fundamental tenet of our law that punitive or other penalty damages are not allowable unless expressly authorized by statute. Ross v. Conoco, Inc., 02-299, (La. 10/15/02), 828 So.2d 546, 555. And when a statute authorizes the imposition of punitive damages, it is subject to strict construction. Id.

The language of Article 2315.4 is clear and unambiguous. It does not provide for an award of punitive damages against a vicariously liable employer of an intoxicated driver. See Romero v. Clarendon America Ins. Co., 10-338 (La. App. 3 Cir. 12/29/10), 54 So.3d 789, writ denied, 11-551 (La. 4/25/11), 62 So.3d 96; Jones v. Travelers Indemnity Co., 2021 WL 54128 (W.D. La. 1/6/21) (“After reviewing the statute, legislative history and jurisprudence applicable to [La. C.C. art. 2315.4], it is this Court’s opinion that the highest court of the State of Louisiana would find that [La. C.C. art. 2315.4] would not allow exemplary damages to be awarded against a vicariously liable employer of an intoxicated driver.”); Spiker v. Salter, 2022 WL 214344 (W.D. La. 1/24/22); Phelps v. Daimler Trucks North America, LLC, 2015 WL 12564180 (E.D. La. 6/26/15); Rick J. Norman, La. Prac. Series, La. Employment Law § 14.3 (“An employer should not be liable vicariously for exemplary damages imposed on its employee for the employee’s egregious conduct.”). La. C.C. art. 2315.4 only provides for punitive damages against “a defendant” who recklessly or wantonly disregards the safety of others by driving while intoxicated. “The article is clearly aimed at the offending person’s behavior and none other.” Romero, 54 So.3d at 792. In this case, the “defendant” who drove while intoxicated and recklessly disregarded the safety of others was Mr. Rodney, not CEVA.

I further disagree with the majority’s application on de novo review of the standard established in Landry-1² that an employer may be held liable for exemplary damages awarded against an employee under La. C.C. art. 2315.4, if the employer contributed to or might have prevented the employee from driving while intoxicated. In reaching this decision, the Landry-1 court reasoned that “the language of La. C.C. arts. 2315.4 and 2320³ indicate that the resolution of this issue should include consideration of whether the employer might have prevented the employee from driving while intoxicated.” Id. at 182. These findings, however, are contrary to the guidance provided by the Louisiana Supreme Court in Wallmuth v. Rapides Par. Sch. Bd., 01-1779, 01-1780 (La. 4/3/02), 813 So.2d 341, 349, fn. 8, which explained that the “might have prevented” language in La. C.C. art. 2320 does not apply to the employer-employee relationship:

*22 Although the language of La. C.C. art. 2320 technically applies as well to the employer-employee relationship, Louisiana courts have not given effect to the ‘might have prevented’ language since 1906. See Weaver v. W.L. Goulden Logging Co., 116 La. 468, 40 So. 798 (1906). The judicial interpretation of La. C.C. art. 2320 as it applies to employers and employees has been codified by La. R.S. 9:3921 (1991), which provides in part: “ … every master or employer is answerable for the damage occasioned by his servant or employee in the exercise of the functions in which they are employed.”

See also Morgan v. ABC Mfr., 97-956 (La. 5/1/98), 710 So.2d 1077, 1080. Additionally, the Louisiana Supreme Court more recently recognized in Martin v. Thomas, 21-149 (La. 6/29/22), 346 So.3d 238, 243, fn. 3, that vicarious liability is not a cause of action, but merely a method of holding one party liable for the conduct of another. Accordingly, I believe that this Court’s holding in Landry-1 should be assigned for en banc consideration by this Court.

For all of these reasons, while I concur in the result, I do not agree with the majority’s reasons provided for reversing the award of punitive damages against CEVA.

All Citations

Footnotes

1. No issues relative to the compensatory damage award are pending before this court.  
2. Ms. Bateman testified that she was the Director of Independent Contractor Relations. She managed independent contractor agreements between drivers and CEVA, set up programs for the drivers and independent contractors, and assisted with establishing and maintaining CEVA’s policies under the FMCSA for driver qualifications.  
3. Ms. Bateman testified that the FMCSA does not require a criminal background report, but CEVA takes this additional step in its pre-hire evaluation to ensure that the driver is a good driving candidate.
4. Mr. Rodney provided CEVA with a letter from the District Attorney’s Office for the Eighteenth Judicial District stating that Mr. Rodney had completed the pre-trial diversion program and that the District Attorney’s Office would not prosecute Mr. Rodney for the possession of Diazepam and Xanax charges.  
5. 49 CFR § 40.82 does in fact prohibit testing DOT specimens for any other drugs.
6. See 49 CFR § 382.213(a), 21 CFR § 1308.11.  
7. See 49 CFR § 382.213(c).  
8. Ms. Landry’s counsel introduced a recording of the 911 call into evidence.  
9. Trooper Reggio explained that the horizontal gaze nystagmus test tracts the involuntary movement of the eye, and if the individual’s eyes bounce around instead of rolling back and forth smoothly, that could be an indicator of an impairment. For the walk-and-turn, he stated that the individual is directed to take nine steps forward, touching heel to toe, counting his steps out loud, looking down at his feet, and keeping his arms by his side. When the individual takes the ninth step, he is directed to make a small turn, line back up again on the line and return in the same manner. For the one-leg stand, he stated that the individual must …… balance on one leg with the other leg raised forward approximately six inches off the ground and count until directed to stop.  
10. On the collision report, Trooper Reggio wrote that Mr. Rodney’s level of impairment was “slight.”  
11. Ms. Landry’s counsel also made the following closing statements: “being on a jury is extremely, extremely powerful … each of you had [sic] the ability to affect real change with your verdict”; “what happens in this house here today… It matters to this community”; “The rules that we discussed throughout this case and on [sic] opening are very important, especially in a community like this one, that is crisscrossed by three major trucking companies.”; “It just happened to be Ms. Landry that ended up taking a bullet for the community.”; “When I see the CEVA witnesses testify … I know that they have different values than this community does.”; “But this is a number that you, and only you, as a sole conscious of this community will enter when it comes to deterring the conduct of CEVA, that you’ve heard about throughout this entire case.”  
12. In cautioning against a mathematical bright line rule to fit every case, the Supreme Court stated that “low awards of compensatory damages may properly support a higher ratio than high compensatory awards, if, for example, a particularly egregious act has resulted in only a small amount of economic damages.” BMW, 517 U.S. at 582-583, 116 S.Ct. at 1602.  

1. La. C.C. art. 2315.4 provides: In addition to general and special damages, exemplary damages may be awarded upon proof that the injuries on which the action is based were caused by a wanton or reckless disregard for the rights and safety of others by a defendant whose intoxication while operating a motor vehicle was a cause in fact of the resulting injuries.  
2. Landry v. National Union Fire Ins. Co. of Pittsburg, 19-337 (La. App. 5 Cir. 12/30/19), 289 So.3d 177, writs denied, 20-160 (La. 3/16/20), 370 So.3d 736 and 20-188 (La. 5/1/20), 295 So.3d 945.  
3. La. C.C. art. 2320 provides in pertinent part: Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed. * * * In the above cases, the responsibility only attaches, when the masters or employers, … might have prevented the act which caused the damage, and have not done it. The master is answerable for the offenses and quasi-offenses committed by his servants, according to the rules which are explained under the title: Of quasi-contracts, and of offenses and quasi-offenses.  

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