Opinion
SA-02-CA-0043-RF
January 26, 2004
ORDER DENYING DEFENDANT'S COMBINED MOTION FOR NEW TRIAL, FOR PARTIAL JUDGMENT AS A MATTER OF LAW, AND FOR REMITTITUR
BEFORE THE COURT are six documents filed by Defendant, each relating to post-trial requests. On November 6, 2003, Defendant filed its (1) Motion for New Trial and Alternative Motion for Remittitur as to Past and Future Disfigurement, Docket No. 94; (2) Motion for New Trial as to All Damages, Docket No. 95; (3) Motion for New Trial and Alternative Motion for Remittitur as to Loss of Future Earning Capacity, Docket No. 96; (4) Renewed Motion for Partial Judgment as a Matter of Law as to Loss of Future Earning Capacity, Docket No. 97; (5) Motion for New Trial and Alternative Motion for Remittitur as to Past and Future Physical Impairment, Docket No. 100; and (6) Combined Renewed Motion for Partial Judgment as a Matter of Law, Motion for New Trial, and Alternative Motion for Remittitur, Docket No. 102.
On November 19, 2003, Plaintiffs responded to the Renewed Motion for Partial Judgment as a Matter of Law, Motion for New Trial, and Alternative Motion for Remittitur, Docket No. 103, and Defendant replied on December 1, 2003. The Court construes Defendant's Combined Motion as comprehensively raising the issues that were separately submitted in the other briefs, and therefore will dispose of the Combined motion and dismiss without prejudice the others as redundant.
Having carefully considered all the parties' submissions and the applicable law, the Court is of the opinion that Defendant's Motions should be denied and that the jury's verdict should stand. While reaching this conclusion, the Court also wishes to pause and compliment the lawyers representing both sides for their excellent performance in this case. This was a well tried lawsuit by all concerned.
Factual and Procedural Background
Plaintiffs instituted this action against Defendant Wal-Mart Stores, Inc. ("Wal-Mart") for alleged negligence. Plaintiff Bob McKissack was a customer in the tire department of Wal-Mart and was standing in the working area of the garage when a tire was thrown from an above storage area by a Wal-Mart employee. The tire fell onto Mr. McKissack's head, and he suffered back and neck injuries. A jury trial on the merits of the McKissacks' claims occurred from September 25, 2003 to September 29, 2003. At the conclusion of the trial, the jury found that the negligence of both Wal-Mart and Mr. McKissack proximately caused the Plaintiffs' injuries and damages. The jury found 78% of the negligence attributable to Defendant, and 22% of the negligence attributable to Plaintiff Bob McKissack.
The jury awarded damages to Plaintiffs on each element of damages without deduction related to apportionment of causation: $80,000.00 for physical pain and mental anguish suffered by Plaintiff in the past; $100,000.00 for future physical pain and mental anguish; $21,500.00 for past disfigurement; $21,500.00 for future disfigurement; $325,000.00 for past physical impairment; $586,000.00 for future physical impairment; $1,022,000.00 for loss of future earning capacity; $69,000.00 for past medical expenses; $3,000.00 for future medical expenses; $3,900.00 for loss of past household services; $2,700.00 for loss of future household services; $3,700.00 for past loss of consortium; $5,500.00 for loss of future consortium. The Court entered awards to Plaintiffs for $4,811.08 in costs and $392,418.00 in prejudgment interest. Based upon the stipulation of the parties, all future damage awards were discounted at a rate of 2.9%.
McKissack v. Wal-Mart, SA-02-CA-43, Final Judgement, (Docket No. 88), entered Oct. 23, 2003 (W.D. Tex).
After trial, Defendant disputes the jury's determination of damages in this case. Defendant does not dispute liability, and therefore the motion for new trial, if granted, would raise only the issue of the amount of damages.
Discussion
A. Renewed Judgment as a Matter of Law as to Loss of Future Earning Capacity
In determining whether to grant a renewed motion for judgment as a matter of law, the Court must consider all of the evidence in the record "in the light most favorable to the party opposed to the motion." The Court may not make credibility determinations or weigh the evidence. Judgment as a matter of law should be granted, reversing the jury's verdict, "when the facts and inferences point so strongly and overwhelmingly in favor of one party" that the Court finds that reasonable people could not arrive at a contrary verdict. In reviewing the record, the Court must "give credence to . . . that `evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.'"
Barnett v. Internal Revenue Service, 988 F.2d 1449, 1453 (5th Cir. 1993).
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000).
Wallace v. Methodist Hospital Systems, 271 F.3d 212, 219 (5th Cir. 2001) (quoting Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc), overruled on other grounds by Gautreaux v. Scurlock Marine Inc., 107 F.3d 331 (5th Cir. 1997) (en banc)).
See Reeves, 530 U.S. at 151 (quoting 9 A CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AMD PROCEDURE § 2559, p. 300 (2d ed. 1995)).
Here, the moving party, Wal-Mart, claims that it should enjoy judgment as a matter of law on the issue of future earning capacity losses because no evidence supports the jury's award on this point. The jury awarded $1,022,000.00 for loss of future earning capacity. Defendant makes three arguments in support of its claim.
First, Defendant argues that because Plaintiffs failed to adduce any evidence for the amount of his future earnings, the jury's determinations of his true future earning capacity and the amount by which it was diminished were not supported by any evidence. On the contrary, the record reveals substantial evidence that Mr. McKissack has worked his adult life in the oil fields. His work was "physically demanding," extremely strenuous and involved long, intense work days. Based upon this evidence and evidence of Mr. McKissack's injuries, the jury's verdict was informed by proof that Mr. McKissack is now able to perform only between twenty and thirty percent of his previous work, and this amount only with a great deal of pain. The jury was therefore able to conclude, as could any reasonable jury, that the evidence supports a finding of complete loss of future earning capacity. The evidence is not limited to supporting a finding of partial loss in this regard because of testimony that Mr. McKissack is prevented by his injuries and continuing pain from obtaining and maintaining a job similar to his previous work. Specifically, the evidence reveals that were Mr. McKissack to work for some short period, a day or two, he would then be debilitated for many more days, preventing the maintenance of a job.
Tr. Vol. 1, pp. 5-7, 28, 36-37; Vol. 2, pp. 203-04.
Tr. Vol. 1, p. 36; Vol. 2, p. 207.
See Brazoria County v. Davenport, 780 S.W.2d 827, 832 (Tex.App.-Houston [1st Dist.] 1989, no writ) (recovery for future earnings losses is based upon the loss of the capacity to earn money, rather than the actual amount lost).
Defendant argues, under Strauss v. Continental Airlines, Inc., that Plaintiffs were required and failed to proffer evidence of the difference between his pre-injury and post-injury earning capacity. Of course, a plaintiff bears the burden of establishing his past earning capacity, and no party argues that Plaintiff here failed to do so. Rather, Defendant suggests that Strauss requires Plaintiff to prove the differential between his past earning capacity and his future one. Defendant misconstrues the authority it cites. Strauss, in fact, states that the evidence sufficient to support a future loss claim will vary with each case, dependent upon the facts. The Strauss court discussed various cases in light of this broad rule, but the tenor of the discussion reveals that a plaintiff's proof of past earning capacity is the major factor that will support, if at all, an award for a loss of capacity to earn. Defendant also points the Court to N. Houston Pole Line Corp. v. McAllister. There, the court upheld a loss of future earning capacity award where evidence existed about the plaintiffs ability to earn some income. Plaintiffs correctly note, however, that the N. Houston Pole Line Corp. opinion does not discuss whether the jury's award reflected any deduction in the amount plaintiff could reasonably earn, nor that the award, if it did not include such a reduction, would have been unsupported. Thus, the case does not inform the instant dispute. Here, the evidence demonstrates that Mr. McKissack was not trained to do any other work and could not do his prior work on any continuous schedule. Therefore, the award for a complete loss of earning capacity is supported by the record.
67 S.W.3d 428, 436 (Tex. App-Houston [14th Dist.] 2002, no pet.).
Strauss, 67 S.W 3d at 435.
"Because Plaintiff was not rendered totally disabled, to recover for loss of future earning capacity, the law in the Fifth Circuit and in Texas is clear that Plaintiff therefore was required to put on evidence from which the jury could have determined the difference between Plaintiffs pre-injury and post-injury earning capacity." D's Combined Renewed Mot. for Partial Jud., at 3 (Docket No. 102).
Strauss, 67 S.W.3d at 436-37.
667 S.W.2d 829 (Tex.App.-Houston [14th Dist.] 1983, no writ).
Second, and in the alternative, Defendant claims that Plaintiffs' evidence was too speculative to support the amount of the jury award with respect to future earnings losses. In fact, although this argument seeps throughout Defendant's brief on the issue of judgment as a matter of law, the Court finds that the record supports the jury's award and that the evidence was neither speculative nor pure conjecture because the award for complete loss of future earning capacity is supported by the evidence. Such a finding must be made considering the evidence in the light most favorable to the non-moving party.
Boeing Co., 411 F.2d at 374-75.
Indeed, the jury might have awarded much more in lost future earning capacity based upon the evidence before it. Mr. McKissack testified to his earnings from 1997 through 2000. He might have earned substantially more than the amounts provided, but instead he chose to accept less pay and work for his father's business in the hope he would someday take it over upon his father's retirement, planned for December 2003. After his father's retirement, Mr. McKissack expected to earn an additional $24,000 per year from his management of that company. The jury might have averaged his past earnings and considered all or some portion of the expected $24,000 per annum or the possibility and arrived reasonably at a verdict higher than the one presented. Defendant suggests a lack of evidence to support the possible additional income from the father's business. This was not testimony of a plaintiff's possible wish to purchase a distant and highly lucrative corporation or dream to earn millions on a wing and prayer. Instead, this testimony evidenced a preexisting connection between the Plaintiff and the business, and hence, the planned additional income. Not only was there a close family relationship, but Plaintiff had already demonstrated a commitment to his father's company and testified to his past and continued choice to support that business in lieu of accepting more lucrative opportunities. Given this testimony, a reasonable jury could have included all or some portion of the projected additional income in its consideration of lost future earning capacity.
Tr. Vol. 1, pp. 51-52.
Tr. Vol. 1, pp, 36-37.
Tr. Vol. 2, p. 215.
In a related argument, Defendant also objects to the number of years, in essence the retirement age projected, used in the jury's calculation. Defendant argues that 65 years is the absolute cap to any award of loss of future earning capacity. This is incorrect. Of course, the jury did not provide arithmetic in support of its verdict, but the evidence supports any number of reasons that the jury might have extended the number of years of Mr. McKissack's projected working life beyond the age of 65. The jury may appropriately have based its determination upon the evidence, and that evidence demonstrated that Plaintiffs father had worked well beyond the average retirement age of 65 and that Plaintiff so intended to do himself. Thus, the jury may have reasonably used additional years in its calculation. Finding that the evidence would have supported logically and reasonably an award in excess of the one stated by the jury for loss of future earning capacity, the Court finds that the jury's award was not speculative, nor based upon conjecture, but rather grounded in evidence properly before it. Therefore, the Court declines to disturb the jury's award on this ground.
Borden, Inc. v. Guerra, 860 S.W.2d 515, 524-25 (Tex.App.-Corpus Christi 1993, writ dism'd by agr.).
Tr. Vol. 1, p. 41; Vol. 2, pp. 215-16.
Defendant's third argument states that Plaintiffs' inability to continue to earn the amount earned prior to his injury was caused by an external factor, unrelated to the lawsuit, and that this factor was intervening to the extent necessary to cut short Wal-Mart's liability for loss of future earning capacity. The Defendant points to testimony in which Plaintiffs father discussed the sale of the business and whether a replacement for Mr. McKissack might have been found. The father states: "I don't — I know there might be someone out there, but I've never had them." Defendant here again errs in asking the Court to view one piece of evidence, instead of the record in its entirety, in the light most favorable to the party moving for judgment as a matter of law, rather than in the light most favorable to the jury's verdict. This one statement can hardly be said to so overwhelming support a finding that the sale of the business intervenes and cuts short Wal-Mart's liability to the extent that reasonable jurors could not reach any other conclusion. The whole record shows, instead, that Plaintiffs father continued to pay Plaintiff after the injury and that he sold the business because he could not continue to operate it without the help of his son. Here again, the evidence supports the jury's findings, and the Court will not disturb them.
Tr. Vol 2, p. 217.
See e.g., Tr. Vol. 2, pp. 211, 214-15.
As a final note, the Court emphasizes that the very nature of this analysis, weighing and measuring the degree to which an individual is injured and is thereby prevented from continued employment and wage earning, is best left to the quite reasonable discrimination of the jury. After listening to all of the evidence during trial and reviewing the entire record on the instant motion, the Court harbors no doubt in affirming the jury's award and reiterating its confidence in the jury's ability to render exactly these types of decisions with thoughtfulness and precision.
B. Motion for New Trial
The decision to grant a new trial under Rule 59 rests soundly within the discretion of the district court. A new trial maybe granted pursuant to Rule 59 "on all or part of the issues . . . for any reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." "Although Rule 59(a) does not enumerate grounds for a new trial, a district court may grant a new trial if the court finds that the verdict is against the weight of the evidence, the damages awarded are excessive or inadequate, the trial was unfair, or prejudicial error was committed in its course. Additionally, a new trial must be granted when the Court is unable logically to reconcile an inconsistent jury verdict. And, when a motion for a new trial is based on evidentiary grounds, the court should not grant a new trial, unless `the verdict is against the great weight of the evidence.'"
Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980); Pryor v. Trane Co., 138 F.3d 1024, 1026 (5th Cir. 1998).
Oyefodun v. City of New Orleans, 2001 U.S. Dist. LEXIS 10008, *5-6 (E.D. La. 2001) (internal citations omitted) (quoting Pry or, 138 F.3d at 1026.).
The Fifth Circuit favors the jury verdict and requires that the verdict stand on a motion for new trial, unless when viewing all evidence in the light most favorable to the jury's verdict, the evidence weighs so overwhelmingly in favor of one party that reasonable people could not disagree. "[A] judgment should not be set aside except for substantial reasons." However, a new trial is properly granted when the district court is "reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done."
Id. (citing Jones v. Wal-Mart Stores, Inc., 870 F.2d 982, 986-87 (5th Cir. 1989)).
11 CHARLES ALAN WRIGHT ARTIIUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2804 (2d ed. 1995).
Laxton v. Gap, Inc., 333 F.3d 572, 586 (5th Cir. 2003) (quoting Del Rio Distributing, Inc. v. Adolph Coors Co., 589 F.2d 176, 179, n. 3 (5th Cir. 1979)).
Defendant argues that a new trial should be granted as to damages. Although Defendant only complains of three of the damage awards specifically, it argues that all damages should be retried under Rule 59 because all are interrelated and a retrial of only a portion would work an injustice. When a damage award is excessive or so large as to appear contrary to reason, the award may be subject to remittitur, rather than new trial. A court may grant a new trial instead of remittitur, though, "when an award results from passion or prejudice" or when the excessive degree of the damages shocks the conscience. Defendant urges for a new trial as to damages because it argues that the record fails to provide a basis for accurately determining a remittitur. The Court finds that sufficient evidence was presented at trial to support the jury's award as to each element of damages. The verdict was not against the great weight of the evidence. Therefore, the Court finds that Defendant's motion for new trial should be denied.
See Anderson v. Siemens Corp., 335 F.3J 466, 475-76 (5th Cir. 2003).
See Marcel v. Placid Oil Co., 11 F.3d 563, 568 (5th Cir. 1994). See also Laxton, 333 F.3d at586.
Polanco. v. City of Austin, 78 F.3d 958, 981 (5th Cir. 1996). See also Laxton, 333 F.3d at 586.
Taylor v. City of Green, 868 F.2d 162. 164 (5th Cir. 1989).
The Defendant also urges that a new trial is required given the opinion of the Texas Supreme Court in Golden Eagle Archery v. Jackson. In Golden Eagle Archery, the Texas Supreme Court addressed the "simple and straightforward" question of whether the court of appeals followed the correct standard of review with regards to the jury's award of zero damages for physical impairment other than loss of vision. Defendant argues that Golden Eagle Archery's treatment of the State Bar of Texas Pattern Jury Charge concerning damages requires a new trial in this case. Defendant states that, because the various damage awards are so intertwined, the new trial need only be granted if the Court finds that any one of those damage awards is excessive. The treatment of the jury instruction issue in Golden Eagle Archery is limited to the context at issue in that case, that is the appropriate standard of review for the Texas Courts of Appeals. The Texas opinion does not guide this Court with respect to new trial, in that the Court finds that a new trial is unwarranted on all points. Furthermore, the Golden Eagle Archery opinion's disapproval of the jury instruction is unhelpful, given that in this case the damages instruction offered to the jury was the instruction submitted by Defendant.
116 S.W.3d 757 (Tex. Sept. 11, 2003), publication status pending.
Id. at 776 (O'Neill, J., concurring).
C. Motion for Remittitur
The Court begins with the presumption that a jury award of damages should be affirmed and only disturbed upon a clear showing of excessiveness or upon a showing that the jury, in making the award, was influenced by passion or prejudice. The Court's discretion governs the grant or denial of a motion for remittitur.
Westbrook v. General Tire and Rubber Co., 754 F.2d 1233, 1241 (5th Cir. 1985).
Id. See also Suja A. Thomas, Re-Examining the Constitutionality of Remittitur Under the Seventh Amendment, 64 OHIO ST. L. J, 731 (2003). Discussing the increasing practice of remittitur in federal courts and the problematic basis for the practice's constitutionality, the author notes that the "already subjective practice of remittitur effectively eliminates the plaintiffs right to a jury trial on damages." Id. at 739. While it is not necessary for this Court to consider the view of Professor Thomas in light of the holdings here, her caution merits evaluation by the federal courts.
The maximum recovery rule, upon which Defendant relies, states generally that an award will not be disturbed by reduction where the award amount is not disproportionate to at least one factually similar case from the same jurisdiction. Plaintiffs urge that in order to reach the maximum recovery rule, the Court must first find the jury's award excessive, and Plaintiffs urge that the non-economic damage awards pertaining to physical impairment and disfigurement are not excessive.
Lebron v. United States, 279 F.3d 321. 326 (5th Cir. 2002) (citing Douglass v. Delta Air Lines, Inc., 897 F.2d 1336, 1334 (5th Cir. 1990)).
Plaintiff cites to both Caldarera v. Eastern Airlines, Inc., 705 F.2d 778, 784 (5th Cir 1983) and Wakefield v. United States, 765 F.2d 55, 59-00 (5th Cir. 1985) in support of its position that excessiveness must first be determined and only then is the maximum recovery rule implicated.
The Court agrees with Plaintiffs that the awards are not excessive, upon consideration of all the evidence submitted to the jury, but disagrees with Plaintiffs' rigid two-step approach to the issue. Excessiveness is inherently related to the comparison with other similar cases and awards contemplated by the maximum recovery rule. However, the fact that the evidence as a whole supports the jury's award in any given case is more probative of the propriety of the award than is a comparison to other cases, in which, despite factual and jurisdictional similarities, the Court will not have the benefit of the entire record before it to inform the inquiry. Therefore, this Court first explored in depth the propriety of the jury's award based upon the record, and finding none of the awards excessive on these grounds, declines to reach the comparative analysis suggested by Defendant. Defendant's comparative analysis is probative of whether the jury's award was normative among a sample of jury awards and not whether it was excessive in relation to the evidence before the jury. Finding no remittitur necessary or warranted, the Court need not engage in the maximum recovery rule comparative analysis.
See generally Lebron, 279 F.2d at 326.
See Caldarera, 705 F.2d at 784 (defining excessiveness as an award "contrary to right reason" or "entirely disproportionate to the injury sustained." that is, the injury sustained by that plaintiff, not in comparison to other similar injuries).
Yet, Defendant argues that the jury's awards are so excessive as to shock the conscience in light of evidence such as Plaintiffs prior injuries, the success of Plaintiff's surgery, and Plaintiffs abilities after injury to continue to perform tasks and activities as he did before injury. Here again, Defendant's analysis falters because it views the entire record in the light most favorable to its argument without accounting for the great weight of evidence that supports the jury's verdict and the jury's award as to each portion of damages.
The element of loss of future earning capacity which the Defendant challenges was discussed in depth above, and the Court need not point again with specificity to all of the evidence that supported the jury's verdict and award. The Court need only note here, as above, that the record as a whole supports the jury's reasonable award, and that the evidence could have reasonably supported a larger jury award on this point. Therefore, the Court declines to disturb the jury's award as to loss of future earning capacity either by new trial or by remittitur.
Defendant also challenges the jury's award as to physical impairment and disfigurement. The jury's award for physical impairment was supported by testimony throughout the trial. The theme of Mr. McKissack's active lifestyle appeared repeatedly and convincingly to the Court and the jury, and the jury found credible the testimony that his injuries have prevented to a large degree his continued involvement in his past, regular activities: hunting, fishing, daily rigorous horseback riding, and breeding and training horses. With respect to disfigurement, Defendant's characterization completely ignores the disfigurement endured by Mr. McKissack after the removal of three disks from his neck and fusion of four of his vertebrae. The evidence revealed that his motion and range of vision are severely limited and a source of frustration and embarrassment because these limitations are visibly apparent to anyone in Mr. McKissack's presence. The jury's award of $21,500.00 for past and $21,500.00 for future disfigurement may reasonably be based upon the jury's perception of the evidence before it and cannot as a matter of law be viewed as excessive to the disfigurement sustained by Mr. McKissack. Therefore, the Court finds that the jury's awards for physical impairment, past and future, and disfigurement, past and future, are not excessive and not subject to reduction analysis.
See e.g. Tr. Vol 1, pp. 21, 38-40. 42: Tr. Vol. 2, pp. 208-09, 225.
Conclusion
For the foregoing reasons, it is hereby ORDERED that Defendant's Combined Renewed Motion for Partial Judgment as a Matter of Law, Motion for New Trial, and in the alternative for Remittitur (Docket No. 102) be DENIED.
Finding that Defendant's other related motions are repetitive and that the Combined Motion (Docket No. 102) decided herein synthesizes the previous ones, the Court will dismiss the others without prejudice.
It is therefore ORDERED that Docket Nos. 94, 95, 96, 97 and 100 are DISMISSED WITHOUT PREJUDICE as supplemental, but redundant, to the Combined Motion disposed of herein.