Vogler v. Blackmore

• Citation: 352 F.3d 150
• Decision Date: 25 November 2003
• Docket Number: No. 02-41527.,02-41527.
• Parties: Frank J. Vogler, etc., et al., Plaintiffs, Frank J. Vogler, Individually and as Representative of the Estates of Becky Franklin Vogler and Kallie Nichole Vogler, deceased, Plaintiff-Appellee, v. Lloyd S. BLACKMORE, New Star Freight, New Star Freight Serve, Inc., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

352 F.3d 150

Frank J. Vogler, etc., et al., Plaintiffs, Frank J. Vogler, Individually and as Representative of the Estates of Becky Franklin Vogler and Kallie Nichole Vogler, deceased, Plaintiff-Appellee, v. Lloyd S. BLACKMORE, New Star Freight, New Star Freight Serve, Inc., Defendants-Appellants.

No. 02-41527.

United States Court of Appeals, Fifth Circuit.

Filed November 25, 2003.

Revised December 19, 2003.

COPYRIGHT MATERIAL OMITTED

Darrin M. Walker (argued), Law Office of Darrin Walker, Kingwood, TX, for Plaintiff-Appellee.

Reagan W. Simpson (argued), King & Spalding, Houston, TX, Curtis William Fenley, III, Fenley & Bate, Lufkin, TX, for Defendants-Appellants.

Appeals from the United States District Court for the Eastern District of Texas.

Before REAVLEY, JONES and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

In this case Appellants Lloyd S. Blackmore ("Blackmore") and New Star Freight Service ("New Star") contend the district court erred in admitting the testimony of a "grief expert" and in upholding the jury's damage award to Appellee Frank Vogler ("Mr. Vogler") for the future mental anguish and loss of society due to the deaths of his wife and young child. In addition, Blackmore and New Star maintain the district court erred in upholding the jury's award for conscious pain and suffering on the part of the decedents. We affirm in part, order a remittitur in part, and reverse in part.

I. FACTS AND PROCEEDINGS

Blackmore, employed by New Star as a truck driver, was driving a tractor-trailer rig south on Highway 69 near Huntington, Texas. Becky Vogler ("Mrs. Vogler") and her three-year-old daughter Kallie Vogler ("Kallie") were approaching Blackmore's rig on Highway 69, driving north. Kallie was in a child-restraint seat in the backseat of Mrs. Vogler's Honda Accord. Blackmore's tractor-trailer veered onto the right shoulder, rode the shoulder for some distance, and then came back onto the highway. Blackmore over-corrected, however, and the truck crossed the center line and jackknifed into Mrs. Vogler's lane. At some point during these events, Mrs. Vogler's car left her lane of traffic and edged both passenger-side wheels off the pavement. In addition, the Honda's speed slowed to 39 miles per hour.¹ The rig first struck the front of Mrs. Vogler's car. The Honda then rotated around so that the passenger side was hit by the truck. Finally, the tractor-trailer ran over the roof of the car from front to back. Both Mrs. Vogler and Kallie were dead by the time they were removed from their vehicle.

Mrs. Vogler's husband, Mr. Vogler; Mrs. Vogler's surviving minor children by her first marriage, Shelby Conway and Clayton Conway ("Shelby and Clayton"); and Mrs. Vogler's parents, Henry and Debra Franklin ("the Franklins") filed a wrongful death suit against Blackmore and New Star. Shelby and Clayton settled with Blackmore and New Star prior to trial, and the Franklins settled after the verdict but before the appeal. Only Mr. Vogler's claims, and more specifically, his damages, are currently at issue. Blackmore and New Star do not contest the jury's finding of liability on appeal.

At trial, in addition to testimony by Mr. Vogler himself, the collective Plaintiffs put forth an expert in thanatology,² referred to by Blackmore and New Star as a "grief expert." This expert, Dr. Phyllis Silverman ("Dr. Silverman"), has a bachelor's degree in psychology and sociology, a master's in social work, and a Ph.D. in public health. She is also licensed as a social worker. She has published twenty-six papers and approximately fifty-two "other" writings in peer-reviewed journals, chapters in books, and complete books. She was a visiting scholar and resident in women's studies at Brandeis, an adjunct professor at Smith College School for Social Work, and a professor and professor emeritus at the Massachusetts General Hospital Institute of Health Professions. Because she had not interviewed or evaluated the collective Plaintiffs, the district court confined her testimony to general theories of grief and recovery.

After finding Blackmore and New Star liable for the deaths of Mrs. Vogler and Kallie, the jury awarded Mr. Vogler damages both individually and as the representative of the estates of his wife and child. The jury awarded $200,000 to Mrs. Vogler's estate for her pain and mental anguish prior to her death, and $200,000 to Kallie's estate for her pain and mental anguish prior to her death. Mr. Vogler received $400,000 for his "pecuniary loss, loss of companionship and society, and mental anguish [because of the loss of Mrs. Vogler] that was sustained in the past," and $1,500,000 for his future suffering in the same capacity, as well as his loss of Mrs. Vogler's future earnings. He was similarly compensated $200,000 for his loss of companionship and society and mental anguish sustained in the past because of Kallie's death, and $1,300,000 for his future suffering because of the loss of his daughter. No punitive damages were awarded by the jury. The district court upheld the jury awards against Blackmore and New Star, denying their Motions for New Trial or for Remittitur, and for Partial Judgment as a Matter of Law. Blackmore and New Star timely appeal.

II. STANDARD OF REVIEW

"[T]he question of admissibility of expert testimony ... is reviewable under the abuse-of-discretion standard." Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). Although this Court has not ruled specifically on the admissibility of the testimony of grief experts, the admissibility of expert evidence generally is governed by the standard enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), which permits admission of testimony only if it is both relevant and reliable. Id. at 589. Even if the expert testimony was improperly admitted, "we next review the error under the harmless error doctrine, affirming the judgment, unless the ruling affected substantial rights of the complaining party." Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir.2003).

Blackmore and New Star characterize the future damages awarded to Mr. Vogler as excessive, entitling Blackmore and New Star to either a new trial or remittitur. When a jury's findings are not being attacked directly, but instead are challenged through a district court's decision not to grant a new trial or remittitur, the standard of review is one of abuse of discretion. Esposito v. Davis, 47 F.3d 164, 167 (5th Cir.1995). "[T]here is no abuse of discretion denying a motion for new trial unless there is a complete absence of evidence to support the verdict." Id.

We give special solicitude to findings of damages for grief and emotional distress, in large part

[b]ecause the assessment of damages for grief and emotional distress is so dependent on the facts and is so largely a matter judgment, we are chary of substituting our views for those of the trial judge. He has seen the parties and heard the evidence; we have only read papers. The jury's assessment of damages is even more weighted against appellate reconsideration, especially when... the trial judge has approved it.

In re Air Crash Disaster Near New Orleans, La. on July 9, 1982, 767 F.2d 1151, 1155 (5th Cir.1985). It is under this narrow review that the jury's awards to Mr. Vogler must be evaluated.

On the issue of whether damages should be awarded at all, this Court treads lightly upon jury verdicts, as the standard of review is very deferential.³ "Absent an error of law, the reviewing court will sustain the amount of damages awarded by the fact finder, unless the amount is clearly erroneous or so gross or inadequate as to be contrary to right reason." Sockwell v. Phelps, 20 F.3d 187, 192 (5th Cir.1994). "Thus, reversal is proper `only if no reasonable jury could have arrived at the verdict.'" Stevenson v. E.I. DuPont De Nemours and Co., 327 F.3d 400, 405 (5th Cir.2003) (internal citations omitted). The evidence is reviewed in the light most favorable to the prevailing party, and "[o]n each issue, `we will not disturb the jury's verdict unless, considering the evidence in the light most favorable to [the prevailing party], the facts and inferences point so overwhelmingly to [the non-prevailing party] that reasonable jurors could not have arrived at a verdict except in [their] favor.'" Streber v. Hunter, 221 F.3d 701 721 (5th Cir.2000) (internal citations omitted).

III. DISCUSSION

A. The Grief Expert

Daubert and its progeny suggest that several factors weigh in favor of finding expert testimony to be sufficiently reliable. Id. at 593-94, 113 S.Ct. 2786. The Supreme Court in Kumho Tire Co. v. Carmichael further suggested that the Daubert standard is a flexible one, and that the district court should "make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999).

While Blackmore and New Star use the word "reliable" in their argument against the admission of Dr. Silverman's testimony, they substantively allege that the testimony was not relevant because it was unconnected to the case. Because the focus of Blackmore and New Star's arguments is whether Dr. Silverman's testimony was connected to the case such that it would assist the jury in determining a fact at issue, the focus is properly the relevance of her testimony, which, according to Daubert, is a question of "whether the reasoning or methodology properly can be applied to the facts in issue." 509 U.S. at 592-93, 113 S.Ct. 2786.⁴

This Court, while not specifically addressing the relevance of a grief expert, has opined on the intersection of relevance and expert testimony. In Bocanegra v. Vicmar Services, Inc., for instance, this Court...