Rounds v. Rush Trucking Corp.

• Decision Date: 10 January 2000
• Docket Number: Docket No. 99-7861
• Citation: 211 F.3d 185
• Parties: (2nd Cir. 2000) ADRIANNE M. ROUNDS, Plaintiff-Appellee, v. RUSH TRUCKING CORPORATION, Defendant-Appellant. August Term 1999 Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 185

211 F.3d 185 (2nd Cir. 2000)

ADRIANNE M. ROUNDS, Plaintiff-Appellee, v. RUSH TRUCKING CORPORATION, Defendant-Appellant.

Docket No. 99-7861

August Term 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: January 10, 2000

Decided: April 27, 2000

Appeal from a judgment following a jury trial in the United States District Court for the Western District of New York (Foschio, Magistrate Judge), awarding $931,218, plus interest, for injuries sustained in a car accident. On appeal, appellant argues that the jury verdict deviated materially from reasonable compensation and that the trial court erred by instructing the jury that it could return separate awards for plaintiff's pain and suffering and for her emotional distress.

VACATED and REMANDED.

F. DAVID RUSIN, Esq., (Lisa Solomon, Esq., on the brief), Ballow, Braisted, O'Brien & Rusin, P.C., Williamsville, N.Y., for Plaintiff-Appellee.

KEVIN KEARNEY, Hodgson, Russ, Andrews, Woods & Goodyear, LLP, Buffalo, N.Y., for Defendant-Appellant.

Before: NEWMAN, WALKER and SOTOMAYOR, Circuit Judges.

JOHN M. WALKER, Jr., Circuit Judge:

In this diversity action, filed pursuant to 28 U.S.C. 1332(a)(1), defendant-appellant Rush Trucking Corp. ("Rush Trucking") appeals from a judgment entered upon a jury verdict in the district court for the Western District of New York (Leslie G. Foschio, Magistrate Judge). The judgment awarded $931,218 to plaintiff-appellee Adrianne Rounds for damages suffered as the result of a car accident. On appeal, Rush Trucking argues that the district court erred when it instructed the jury to consider separate awards for pain and suffering and for emotional distress, and that the jury award was excessive under New York law. Because we agree that New York law prohibits separate awards for pain and suffering and emotional distress, we vacate the final judgment of the district court and remand for a new trial, unless Rounds, upon remittitur, accepts a reduction of her award in the amount of $350,000, representing the full amount of the jury's separate award for emotional distress damages.

BACKGROUND

Rounds, a New York resident, worked as a registered nurse at the Warren General Hospital in Warren, Pennsylvania. On January 21, 1994, after Rounds stopped her pickup truck before the intersection of Route 62 and Jackson Run Road in Conewago, Pennsylvania, a tractor-trailer truck, owned by Rush Trucking, struck Rounds's pickup from behind, pushing it through the intersection for approximately 180 feet. The accident caused considerably less physical damage to Rounds's vehicle than one might expect, and Rounds herself appeared relatively uninjured. After the accident, she continued on to the hospital and reported for work. Subsequently, Rounds developed myriad physiological and psychological problems, allegedly as a result of the accident. Rush Trucking conceded liability but at trial contested whether Rounds's injuries were proximately caused by the accident and also questioned the extent of her injuries.

Evidence that the jury was free to accept demonstrated that Rounds slept for nearly four days following the accident. When she attempted to return to work she experienced numbness and tingling in her extremities; moving about induced nausea and vomiting and she experienced pain in her lower back, her arm, her leg, and her head. She began a regimen of physical therapy which included treatment with heat, ultrasound and myofascial release. Her physical therapist referred her to a specialist who provided an oral brace to stabilize her jaw. This brace reduced her nausea and vomiting but increased her facial pain.

Beginning in 1995, Rounds began suffering what she referred to as "drop attacks" in which she would fall down, without losing consciousness, but without any sensation of falling. Rounds's vision also deteriorated. She began receiving treatment from a chiropractor, Dr. Lynn Pownall, who diagnosed Rounds as suffering from cervical hyper flexion causing cervical, lumbar and temporal mandibular segmental dysfunction, myofascitis and disc herniation. She later diagnosed Rounds with lumbar sprain/strain syndrome and lumbar disc herniation, minor disc bulging and disc problems, and a complete reversal of her cervical curvature. Doctors testified at trial that many of Rounds's symptoms were permanent. Rounds herself testified that she remains sensitive to light, suffers from frequent headaches, and that even household chores are often painful. Rounds has been unable to return to work. She returned to school to pursue a degree in arts and illustration but was forced to drop out twice because of her physical condition.

Central to the issue presented by this appeal, one of Rounds's experts, Dr. Franks, testified that Rounds continues to experience pain on a daily basis and that this pain is a depressant and impacts directly on her self-esteem and her ability to cope with stress. He explained to the jury that debilitating injuries often cause highly motivated people, like Rounds, to suffer from an emotional dysfunction that magnifies their symptoms in a subconscious process that "worsens the whole situation."

The district court instructed the jury that it could separately award damages for pain and suffering and for the emotional distress described by Dr. Franks and Rounds herself. The magistrate judge explained to the jury that it could award damages to compensate her "for any conscious pain and suffering, and mental suffering, emotional and psychological injury, and any physical consequences resulting from the emotional distress caused by the defendant." The magistrate judge submitted a questionnaire to the jury which contained separate spaces for the jury's finding of different categories of damages, including separate spaces for pain and suffering and for emotional distress. The jury returned the following awards:

Past medical expenses: $18,500

Past lost earnings: $160,000

Past pain and suffering: $250,000

Past emotional distress: $250,000

Future medical expenses: $20,000

Future lost earnings: $160,000

Future pain and suffering: $100,000

Future emotional distress: $100,000

Following a recalculation of damages pursuant to N.Y. C.P.L.R. ("CPLR") 7511 (McKinney 1999), the district court entered a judgment in the amount of $931,218 plus interest on January 28, 1999. After the trial, Rush Trucking moved pursuant to Fed. R. Civ. P. 59 for a new trial or, alternatively, to strike the jury award for past and future emotional distress and to otherwise reduce the award. The magistrate judge denied the motion and ruled that New York law permits juries to award separate damages for pain and suffering and for emotional distress.

On appeal, Rush Trucking argues that (1) the jury's award was excessive within the meaning of CPLR 5501(c), and (2) New York law prohibits jury instructions that permit the jury to make separate awards for pain and suffering and emotional distress. We will not reverse the magistrate judge's finding that the verdict was not excessive under New York law. But because we agree with Rush Trucking that the jury instruction misapplied New York law, we vacate and remand for a new trial unless Rounds accepts on remittitur a reduction in her award of $350,000, amounting to a total award of $581,218, plus interest.

DISCUSSION

We turn first to the magistrate judge's determination that the jury's verdict was not excessive. The magistrate judge, sitting in diversity, correctly determined that New York law governs such an inquiry and applied the standard set forth in CPLR 5501(c): "an award is excessive or inadequate if it deviates materially from what would be reasonable compensation." Our review of the magistrate judge's determination is limited to abuse of discretion. See Gasperini v. Center of Humanities, Inc., 518 U.S. 415, 438 (1996).

The magistrate judge correctly applied the 5501 standard by reviewing the evidence at trial and comparing the jury award to other cases in which evidence of similar injuries was presented. See id. at 425 (citing New York cases). The magistrate judge's recitation of the evidence and examination of comparable New York cases is thoroughgoing and persuasive. The magistrate judge did not abuse his discretion and our review of this aspect of the jury award is therefore at an end.

The second and more pressing issue we face is whether the magistrate judge's jury instructions permitting the jury to return separate awards for pain and suffering and for emotional distress were proper. We review the jury charge de novo, and "will reverse only if all of the instructions, taken as a whole, caused a defendant prejudice." United States v. Bok, 156 F.3d 157, 160 (2d Cir. 1998). Of course, in a diversity case we are "bound to follow state law on any matter of substantive law." DeWeerth v. Baldinger, 38 F.3d 1266, 1272 (2d Cir. 1994). And, "[i]n deciding a disputed issue of state law in a diversity case, a federal [trial] court should attempt to discern what the highest court of that state would decide." L-Tec Elec. Corp. v. Cougar Elec. Org., Inc., 198 F.3d 85, 86 (2d Cir. 1999).

Our analysis therefore begins with the leading case of McDougald v. Garber, 73 N.Y.2d 246 (1989), in which the New York Court of Appeals struck down separate awards for pain and suffering and for loss of enjoyment of life, stating:

Recently . . . there has been an attempt to segregate the suffering associated with physical pain from the mental anguish that stems from the inability to engage in certain activities, and to have juries provide a separate award for each . . . .

. . . .

We do not dispute that distinctions can be found or created between the concepts of pain and suffering and loss of enjoyment of life. If the term "suffering" is limited to the emotional response to the sensation of pain, then the emotional response caused by the limitation of life's activities may be considered qualitatively different....