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Argued and Submitted April 19, 1990.
On Appeal From the United States District Court for the District of Nevada; Howard D. McKibben, District Judge, Presiding.
On Appeal From the United States District Court for the District of Nevada; Roger D. Foley, District Judge, Presiding.
D.Nev.
AFFIRMED.
Before BEEZER and KOZINSKI, Circuit Judges, and STEPHENS, District Judge.
The Honorable Albert Lee Stephens, Jr., Chief Judge Emeritus, Central District of California, sitting by designation.
Defendant Scenic Airlines, Inc. ("Scenic") appeals the jury's verdict awarding $600,000 each in damages to the parents of two young women killed in an air crash. Scenic argues that the trial court erred in refusing to set aside or reduce the amount of the verdicts for excessiveness. Scenic also contends that the trial court erred in denying its motion for a mistrial based on the improper closing argument by plaintiffs' attorney.
In a consolidated case, defendant Cessna Aircraft Company ("Cessna") appeals the jury's verdict denying Cessna indemnification from Teledyne Industries, Inc. ("Teledyne"). Cessna argues that the trial court abused its discretion in admitting the evidence of Teledyne's tests regarding Cessna's theory of causation or in refusing to sever the trial at that point.
We affirm the verdicts in both cases.
I
Plaintiffs' decedents, Sawako Minato and Hiroko Miyazawa, were killed in an air crash in Tucson, Arizona, on July 21, 1980. Plaintiffs, the personal representatives of the estates of these two young women, brought suit against Scenic, the operator of the aircraft and Cessna, the manufacturer of the aircraft, under the Arizona Wrongful Death Act before the United States District Court for the District of Nevada. The plaintiffs asserted various theories of negligence and product liability. Cessna filed a third-party complaint naming Teledyne, the manufacturer of the aircraft's engines, as a third-party defendant.
On March 19, 1985, these cases proceeded to jury trial. Cessna acknowledged that the aircraft was defective, as the plaintiffs alleged, because the Teledyne-built left engine proved to have a defective exhaust value guide in cylinder number five. Cessna contended that the metal guide fractured, and loose pieces entered the engine's turbocharger, damaging the turbine blades. The turbocharger eventually failed because Scenic did not detect and remedy the problem for several days as it continued to use the aircraft. The resulting power loss in the left engine, combined with improper pilot response, caused the crash.
In sum, Cessna argued that the defective value guide was the only casual factor that could be attributed to Cessna. It maintained that the turbocharger problem could have been remedied by Scenic, and even that the resulting power loss could have been handled safely by a competent pilot. However, if the engine defect was held to be a proximate cause of the crash, Cessna argued, it was entitled to indemnity from the manufacturer responsible for the defect, Teledyne.
At trial it was disclosed that, after the discovery cut-off, Teledyne's trial counsel had had an in-house Teledyne engineer test Cessna's theory by feeding pieces of a valve guide into a turbocharger. Teledyne failed to supplement its answers to Cessna's interrogatories or to inform Cessna in any other way of the fact that such tests had been performed. Consequently, the trial court refused to permit Teledyne to use the evidence to defend against Cessna's indemnity claim. However, the court determined that it would be unfair to prohibit Scenic from using the evidence of the test to defend against the plaintiffs' negligence claims. The court rejected Cessna's motion to sever the two trials, but instructed the jury that the evidence was only to be considered with respect to the plaintiffs' claims against Scenic and not with respect to Cessna's indemnity claim against Teledyne.
After a ten day trial, the jury returned verdicts in favor of the plaintiffs, awarding $600,000 for each of the two estates. The jury returned its verdict in the third-party action in favor of Teledyne and against Cessna. The district court entered judgments on these verdicts on April 9, 1985. Scenic's motion for a partial new trial was denied by an order entered September 20, 1985, and Scenic filed a timely notice of appeal on October 18, 1985.
Cessna, on the other hand, settled with the plaintiffs after trial and does not appeal the judgment on the verdicts in favor of the plaintiffs. However, Cessna did move for a new trial with respect to the indemnity verdict. That motion was also denied on September 20, 1985, and Cessna filed its timely notice of appeal on October 18, 1985.
II
Scenic argues that the trial court abused its discretion in denying its motion for a new trial. It is Scenic's contention that "[a]nalysis of the evidence demonstrates that the jury's verdicts were either the result of passion and prejudice, or a complete disregard of the evidence and instructions of the court, or both." This argument fails.
As we have held, "[a] litigant who appeals on the ground that denial of a motion for new trial was improper has a substantial burden to overcome to demonstrate the trial judge's abuse of discretion." Berns v. Pan American World Airlines, Inc., 667 F.2d 826, 831 (9th Cir.1982). Where the defendant argues that the verdict is excessive, "[i]t is not enough that [we] might as the triers of fact, have awarded less." Barzelis v. Kulikowski, 418 F.2d 869, 870 (9th Cir.1969). In fact, as we have stated:
[a]bsent a total want of evidence on all or certain portions of the case, or the erroneous exclusion from consideration by the trial court of appropriate matters or a showing of bias or prejudice on the part of the jury, this court may not reverse the trial court unless the verdict can be said to be grossly excessive or monstrous....
Id. (quoting Siebrand v. Gossnell, 234 F.2d 81, 94 (9th Cir.1956) ).
Arizona law is consistent with our decisions. As an Arizona court of appeals held in Braun v. Moreno, 11 Ariz.App. 509, 466 P.2d 60, 63 (1970):
[t]he initial responsibility for reducing an excessive verdict is with the trial court.... Where, as here, the trial court has refused to interfere with the jury's determination of damages, this court cannot interpose its own judgment on the issue unless convinced that the verdict is so outrageously excessive as to suggest, at first blush, passion or prejudice.... In other words, the conscience of this court must be 'shocked' by the amount of the award before we tamper with the jury's determination.
Thus, Scenic bears the burden of proving that the jury's verdict of $600,000 in damages for the wrongful death of each of the two deceased young women is so exorbitant as to "shock the conscience." Scenic has failed to meet this burden.
The trial court instructed the jury that
[i]n determining the amount of your verdict in favor of the plaintiffs, you may consider any of the following factors which have been established by the evidence:
(1) You may consider the financial support and benefit, if any, which the parents would have received had Sawako Minato and Hiroko Miyazawa lived out their normal life spans. In this regard you may take into consideration the loss of financial support and maintenance, if any, which the parents have suffered because of the deaths of Sawako Minato and Hiroko Miyazawa.
(2) You may consider the loss of love, affection, care, comfort, protection, attention, companionship, guidance, discipline, training, counsel, advice, society services and broad range of mutual benefits each parent received from the others' continued existence.
(3) You may consider the age of Sawako Minato and Hiroko Miyazawa and of their parents; the state of health of Sawako Minato and Hiroko Miyazawa and their parents as of the time of death and immediately prior thereto; their station in life, their respective expectancies of life, whether Sawako Minato and Hiroko Miyazawa were kindly, affectionate, or otherwise toward their parents; the disposition of Sawako Minato and Hiroko Miyazawa to contribute financially to the support and other advantage of the beneficiaries, and their actual habits and practices in making or not making such contributions; the ability of Sawako Minato and Hiroko Miyazawa and their inclination to and habit of performing or not performing services having a monetary value to the parents.
(4) You may consider the personal anguish, pain, mental suffering, sorrow, stress, shock and grief suffered by the parents of Sawako Minato and Hiroko Miyazawa and those which are reasonably certain to result in the future.
Scenic does not argue that the court erred in giving these instructions. However, it does argue that
In fact, because Scenic failed to object to the instructions at trial it has waived any objection to them. Fed.R.Civ.P. 51; Shad v. Dean Witter Reynolds, Inc., 799 F.2d 525, 531 (9th Cir.1986); Philippine Nat'l Oil Co. v. Garrett Corp., 724 F.2d 803, 807 (9th Cir.1984).
the evidence fails to disclose any loss of financial support--past, present or future--suffered by the parents because of the deaths of their daughters.... Indeed, the only reference to financial support was the objected to testimony of plaintiffs' expert in Japanese culture that, 'parents are expected to and do depend on their children, their grown-up children for comfort, support, support including both financial and emotional and all kinds of assistance.'
Scenic does not dispute the admissibility of this testimony in its argument, although it does attempt to discredit it. In fact, Scenic seems to acknowledge that the testimony was harmless, as it states that "[i]t is clear, therefore, that the jury's verdict of $600,000 for each death was solely and exclusively for noneconomic or non-pecuniary damages." On the other hand, Scenic does refer to the testimony as "prejudicial" in its statement of the case and argues in its reply that "[i]t simply defies reason to assume that this expert testimony, unsupported by any facts with respect to this case, but repeated in summation by counsel, had no effect on the jury...."
However, to the extent that Scenic raises the testimony as an issue on appeal, it has failed to meet its burden of proving that the trial court abused its discretion in admitting it. At trial, Scenic did object to the expert's testimony. After the expert had described the differences between the typical children's stories of America and Japan, Scenic's attorney objected, stating that "[t]his line of questioning, I gather is to qualify the witness as some type of expert, but I still don't know what type of expert he is supposed to be." However, the trial court permitted the questioning to proceed, recognizing that the plaintiff was "qualifying him as an expert in Japanese culture." Scenic did not object to the testimony of the witness after he had been so characterized. Scenic also failed to object when in the course of his testimony the expert testified that Japanese parents depend on their children for financial support. Consequently, it is questionable whether Scenic preserved the issue for appeal. See E. Cleary, McCormick on Evidence § 52 at 128-131 (3d ed. 1984) ("objections must be accompanied by a reasonably definite statement of the grounds").
However, even if Scenic does intend to appeal the admission of the testimony and did adequately preserve the issue for appeal, it has completely failed to argue why the testimony is improper, much less offer support for its position.
Similarly, Scenic argues that "[t]he testimony at trial failed to establish any unusual 'anguish, sorrow, mental suffering, pain and shock' for which recovery is permissible under Arizona law in accordance with City of Tucson v. Wondergem, 105 Ariz. 429, 466 P.2d 383 (1970)." Specifically, Scenic argues that Arizona law only permits recovery for such damages where they are manifested as a physical injury.
Again, Scenic does not dispute the jury instruction and, in any event, has waived any objection by failing to object at trial. Fed.R.Civ.P. 51; Shad, 799 F.2d at 531. Scenic simply argues that the mental suffering of the parents cannot be considered in support of the jury's verdict as there is no evidence of physical injury necessary to support the award of damages for mental suffering. To support its position, Scenic cites cases involving claims based on the tort of negligent infliction of emotional distress. In these cases, the plaintiffs claim that they have suffered emotional disturbance upon seeing injury inflicted upon a third person. Under such circumstances Arizona courts have held that "[i]n order for there to be recovery for the tort of negligent infliction of emotional distress, the shock or mental anguish of the plaintiff must be manifested as a physical injury. Damages for emotional disturbance alone are too speculative." Keck v. Jackson, 122 Ariz. 114, 593 P.2d 668, 669-70 (1979) (en banc).
However, it is not clear that Arizona courts would require physical manifestation of mental suffering in a wrongful death case such as this one. The Arizona courts have upheld the award of damages for mental suffering in wrongful death suits. See Wondergem, 466 P.2d at 387. In Wondergem, there was no indication of physical injury, although the plaintiff had been hospitalized for psychiatric treatment. Id. However, the court did not even discuss the requirement of physical injury.
Here, the plaintiffs alleged, and the jury was instructed regarding loss of consortium--namely, "the loss of love, affection, care, comfort, protection, attention, companionship, guidance, discipline, training, counsel, advice, society services and broad range of mutual benefits each parent received from [the child's] continued existence." Where such loss is established, mental suffering is hardly "speculative." In fact, in Wondergem the Arizona Supreme Court held that "[t]he loss of companionship and comfort certainly results in sorrow, and the failure to permit such recovery falls short of 'fair and just' standards set forth in § 12-613, A.R.S." Id.
With respect to the plaintiffs' loss of consortium, Scenic argues that
the decedents were not infants or minors, nor were they even the only children of their parents. Tragic as this accident and the deaths of these twenty-two year old daughters were, there is nothing in the evidence to justify exorbitant awards of $600,000 for loss of consortium suffered by each set of parents.
The verdict does not, without more, shock one's conscience. However, Scenic offers absolutely nothing to support its assertion that $600,000 is an exorbitant amount for the loss of consortium resulting from the death of one's child. It cites no cases, commentary, or other sources. It does not even offer an alternative figure or a range of reasonable awards. Consequently, Scenic has failed to meet its burden of demonstrating that the amount of the verdict shocks the conscience.
III
Scenic also argues that the court erred in refusing to grant a mistrial following the closing argument by plaintiffs' attorney. During his argument, the attorney stated:
[b]ut here you are, this is your lot in life; you are on this particular jury, and you must make some very difficult determinations. My responsibility is almost over. I have shouldered it, I have gladly shouldered it; I have enjoyed representing these people; but my burden, my job, is done, almost. And the burden will now shift to you....
Scenic contends that this statement violates the prohibition against making a "Golden Rule" argument.
The "Golden Rule" argument has been defined as:
essentially a suggestion to the jury by an attorney that the jurors should do unto others, normally the attorney's client, as they would have others do unto them. The typical situation in which such an argument has been employed is the personal injury case in which the plaintiff's counsel suggests to the jurors that they grant the plaintiff the same amount of damages they would want or expect if they were in the plaintiff's shoes. The courts have generally found the 'Golden Rule' argument improper because a jury which has put itself in the shoes of one of the parties is no longer an impartial jury.
Annotation, 68 ALR Fed. 333. Scenic concedes that the plaintiffs' attorney did not ask the jury to do unto the plaintiffs as they would be done by, but argues that he resorted to the "Golden Rule" argument by indirection in suggesting to the jurors that they step into his shoes as counsel for the plaintiffs and shoulder his burden of "representing these people." This argument also fails.
As we have held:
[t]he trial court has broad discretion in the control of closing arguments, and this court will not reverse a judgment because of statements made in the arguments of counsel unless they were so prejudicial that a failure to declare a mistrial was an abuse of discretion.
People of the Territory of Guam v. Ignacio, 852 F.2d 459, 462 (9th Cir.1988). In this case, Scenic's attorney moved for a mistrial immediately after the plaintiffs' attorney concluded his closing argument. However, the trial court denied the motion, finding that the statement had not prejudiced the jury.
As we have recognized, "this is an acceptable mechanism by which to preserve challenges to prosecutorial conduct in a closing argument in lieu of repeated interruptions to the closing arguments." United States v. Prantil, 764 F.2d 548, 555 n. 4 (9th Cir.1985).
The Court heard and evaluated the comment of counsel at the time it was made and concluded that in the context in which it was made it was innocuous. This comment did not invoke personal interest and bias and did not seek to have the jurors step into the shoes of the plaintiffs. Accordingly, the Court finds no error in this comment.
The statement in question did not ask the jurors to step into the shoes of the plaintiffs. Moreover, contrary to Scenic's argument, it is not clear that the statement even suggests that the jurors step into the shoes of the plaintiffs' attorney. Instead, it seems to inartfully explain that the attorney's job was almost over, while the jury's was about to begin. In fact, this reading of the statement is reinforced by the first sentence of the paragraph in question. That sentence--"But here you are, this is your lot in life; you are on this particular jury, and you must make some very difficult determinations"--distinguishes the role of the jury from that of counsel.
The trial court is in the best position to determine the effect that arguments of counsel have upon the jury. See Ramsey v. Culpepper, 738 F.2d 1092, 1100 (10th Cir.1984). Scenic has failed to prove that the trial court in this case abused its discretion in determining that the statement in question was "innocuous."
IV
With respect to the indemnity verdict, Cessna argues that the district court abused its discretion by permitting Scenic to use the evidence of Teledyne's "secret" tests without severing the trials so as to prevent Cessna from being prejudiced by its use. As described above, Teledyne failed to disclose the fact that it had conducted tests based on Cessna's theory of the cause of the crash. When evidence of the tests was disclosed during Teledyne's examination of its expert, Mr. Eberly, Cessna immediately objected and pointed out Teledyne's lack of pretrial disclosure. As a result, the court stated that:
[t]here is no question that if this came out just as between Cessna and Teledyne as a third-party complainant here, I would sustain the objection, and I wouldn't allow the testimony to come in.
However, the evidence was also of great importance to Scenic as it tended to disprove Cessna's theory that Scenic's negligence was a proximate cause of the air crash. As the court recognized:
that is what makes this case difficult, when you have multiple parties like this. It seems to me, in fairness, Scenic should be entitled to inquire into this area. Certainly it may hurt Cessna, that is what makes it a hard case
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* * *
Cessna did suggest an alternative means of resolving the evidentiary dilemma. It proposed that the court sever the two cases at that point, permitting the jury to first decide the indemnity issue without having heard the testing evidence; afterwards, the evidence could then be admitted and the jury permitted to decide the issue of liability on the part of Scenic and Cessna. The court's response indicates that it may not have completely understood Cessna's suggestion: "What is the difference between that and me instructing them? You can hear it either way?" In any event, the court rejected Cessna's suggestion, opting to admit the evidence with the following limiting instruction:
I want to instruct you and admonish you that the testimony which we will now go into, and which [Scenic's attorney] will be permitted to examine on, is admissible on the negligence issue as it relates to plaintiff and Scenic Airlines here only. It is not admissible and may not be considered by you for any purposes with respect to the third-party complaint between Cessna and Teledyne, or with respect to any defenses that Teledyne may have as to Cessna Airlines [sic].
The court later denied Cessna's motion for a new trial, holding that in light of the fact that it had limited the admission of the evidence and further admonished the jury on several occasions regarding the limited purpose for which the evidence could be considered, it perceived no prejudice to Cessna.
A district court's decision concerning a motion for a new trial is reviewed for an abuse of discretion. See Hard v. Burlington Northern R.R., 812 F.2d 482, 483 (9th Cir.1987). Cessna has failed to prove that the district court abused its discretion in this case.
Rule 105 of the Federal Rules of Evidence provides:
[w]hen evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
However, as the Notes of the Advisory Committee on the Proposed Rules caution:
[t]he availability and effectiveness of this practice must be taken into consideration in reaching a decision whether to exclude for unfair prejudice under Rule 403.... The wording of the present rule [rejects] any implication that limiting or curative instructions are sufficient in all situations.
For example, in Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court ruled that a limiting instruction did not effectively protect the accused against the prejudicial effect of admitting in evidence the confession of a codefendant which implicated him. Specifically, the Court held that
because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner's guilt, admission of Evans' confession in this joint trial [where Evans refused to take the stand] violated petitioner's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.
Id. at 126.
Nevertheless, in cases such as this one, "the practice is to admit the evidence, with an instruction, if requested...." E. Cleary, McCormick on Evidence, § 59 at p. 152 (3d ed.1984). The issue on review of such cases is whether or not "the jury's verdict is more probably than not untainted by the [evidence in question]." Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1500 (9th Cir.1986); see also Haddad v. Lockheed California Corp., 720 F.2d 1454, 1459 (9th Cir.1983).
In this case, Cessna has failed to show that it was more probably than not prejudiced by the evidence. The court gave a limiting instruction and admonished the jury several times regarding its consideration of the evidence. This court has held that "[t]he jury is presumed to have followed its instructions." First Beverages, Inc. v. Royal Crown Cola Co., 612 F.2d 1164, 1176 (9th Cir.), cert. denied, 447 U.S. 924 (1980). Additionally, although Cessna objected to the evidence, it did not ask for a continuance to familiarize itself with the tests or to otherwise prepare for its cross-examination of Eberly. In fact, Cessna proceeded, without such a continuance, to conduct an extensive cross-examination, pointing out the flaws in the testing procedures as well as the fact that the tests had not been disclosed to Cessna prior to trial. Further, the evidence was cumulative of other expert testimony regarding Cessna's valve guide theory. See Haddad, 720 F.2d at 1460.
Finally, the fact that Teledyne's attorney did not use more hypothetical terms in referring to Eberly's testimony in his closing argument does not require a different result. Eberly gave a significant amount of opinion testimony unrelated to the actual tests. In light of this testimony, the statements in question were not improper.
Under the facts of this case, the district court did not abuse its discretion in denying the motion for a new trial.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3.
Because the limited admission of the evidence was more probably than not harmless with respect to Cessna, it is not necessary to address Teledyne's procedural claims.
The jurys' verdicts in both cases are AFFIRMED.