Learmonth v. Sears
| Decision Date | 24 January 2011 |
| Docket Number | No. 09–60651.,09–60651. |
| Citation | 631 F.3d 724 |
| Parties | Lisa LEARMONTH, Plaintiff–Appellee Cross–Appellant,v.SEARS, ROEBUCK AND CO., Defendant–Appellant Cross–Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
OPINION TEXT STARTS HERE
Robert Kevin Hamilton (argued), Hamilton Law Firm, P.L.L.C., Jackson, MS, Joe Clay Hamilton, Hamilton Law Firm, P.L.L.C., Meridian, MS, for Learmonth.Francis A. Citera (argued), Gregory E. Ostfeld, Greenberg Traurig, L.L.P., Chicago, IL, Henry Gray Laird, III, Page, Kruger & Holland, P.A., Jackson, MS, for Sears Roebuck & Co.Mark Alan Behrens, Cary Silverman, Shook, Hardy & Bacon, L.L.P., Washington, DC, Carl Robert Montgomery, Montgomery McGraw Collins O'Cain & Coleman, P.L.L.C., Canton, MS, Cynthia I. Mitchell, Merkel & Cocke, P.A., Clarksdale, MS, David Neil McCarty, David Neil McCarty Law Firm, P.L.L.C., Jackson, MS, for Amici Curiae.Harold Edward Pizzetta, III, Office of Atty. Gen., Civil Lit., Jackson, MS, for Intervenor.Appeal from the United States District Court for the Southern District of Mississippi.Before KING, STEWART and OWEN, Circuit Judges.KING, Circuit Judge:
A jury found Sears, Roebuck and Company liable for causing Lisa Learmonth's injuries in an automobile accident and awarded her $4 million in compensatory damages. The district court denied Sears' motion for a new trial, but remitted the non-economic damages portion of the award to $1 million pursuant to Mississippi's statutory cap on non-economic damages. Sears appeals the district court's denial of its motion for new trial; Learmonth cross-appeals the constitutionality of the Mississippi statutory cap. We affirm the district court's judgment insofar as it denied a new trial and certify the state constitutional question to the Supreme Court of Mississippi.
Plaintiff Lisa Learmonth was seriously injured in a car accident at the intersection of Mississippi State Highways 15 and 485. The collision involved Learmonth's car, which she was driving, and a Sears, Roebuck and Company (“Sears”) van driven by James McClelland, a Sears employee. Sears contested both liability and damages at trial.
The primary factual dispute as to liability was which driver was traveling on Highway 15, which runs north and south, and which driver was traveling on Highway 485, which runs east and west at that juncture. The question was a critical one, as there is a stop sign on Highway 485—but no stop sign on Highway 15—at the intersection where the accident took place. Therefore, whoever was driving on Highway 15 had the right-of-way. Both drivers claimed that the other had been traveling east on Highway 485 and had run the stop sign at the intersection, causing the collision.
Eight fact witnesses testified in connection with the liability issue, including Learmonth and McClelland. Learmonth, who suffered head trauma from the collision, testified that she did not remember the accident itself, but that she had been heading north on Highway 15 to pick up her mother that day and had called her mother from a town south of the intersection on Highway 15. Phone records verified that Learmonth called her mother about fifteen minutes before the accident occurred. McClelland testified that he completed a service call at the home of Bud Dees, a quarter-mile north of the intersection on Highway 15, and was driving south on Highway 15 when Learmonth's car entered his path. At trial, he testified that he could not remember what time he left Dees' home, but in earlier depositions he testified that he left around 11:30 a.m. The accident occurred around 1:30 p.m. Sears submitted an affidavit stating that it was unable to locate any information or records, electronic or otherwise, regarding the service calls, deliveries, or repairs made by McClelland on the day of the accident, and it was thus unable to confirm McClelland's whereabouts on the day of the accident.
One eyewitness testified that he saw the Sears van run the stop sign. Two other witnesses placed Learmonth traveling north on Highway 15 near the time of the accident; one of those witnesses stopped to render aid at the scene until emergency personnel arrived. Three witnesses, including McClelland, testified that the vehicles came to rest in the northeast quadrant of the intersection. One witness, however, placed the Sears van in the northeast quadrant and Learmonth's car in the northwest quadrant.
Several witnesses testified about McClelland's actions immediately following the accident. Two witnesses stated that he ran towards or into the woods near the intersection, with one of those witnesses testifying that he “walked over there like he was throwing something.” That same witness stated that the “dude acted like he was going to take off from the scene.” Another witness did not see McClelland run toward the woods, but testified that he was pacing near the woods and never approached Learmonth's car or tried to help Learmonth. McClelland testified that he ran away from the van because he thought it was on fire. He further testified that he returned to retrieve his cell phone when he saw that the van was not on fire; that he called his supervisor and not 911 because another person was already calling 911; and that he did not approach Learmonth's car because emergency personnel were on the way.
Two accident reconstruction experts also testified at length concerning liability. Learmonth's expert opined that, based on the measurements taken of the damage to the vehicles and assuming that their final resting place was in the northeast quadrant, Learmonth's car was struck while traveling north on Highway 15 by the larger Sears van traveling east on Highway 485. In his view, it was not plausible that both vehicles would come to rest in the northeast quadrant of the intersection if the larger van, traveling south, struck the car at a high rate of speed when the car ran a stop sign traveling east. Instead, the van would have pushed the car to the south side of the intersection. Sears' expert testified that there was not enough physical evidence to determine the sequence of events or the cause of the collision.
Learmonth was seriously injured in the accident, suffering, among other things, traumatic brain injury with loss of consciousness; multiple fractured bones in her pelvic area which required a permanent screw; a broken collarbone; acute post-hemorrhagic anemia; and puncture wounds and lacerations to her face and shoulder. She was hospitalized for five days after the accident, confined to a wheelchair for two months, and on crutches for several weeks after that. Her fractures have healed, but Learmonth testified at trial that she continues to experience chronic pain in her lower back and pain from nerve damage in her left leg. She receives epidural steroid injections one to three times a year for pain alleviation, and will continue to do so for the next ten to fifteen years. She testified that the injections provide some relief for her leg pain, but very little relief for her back pain.
Learmonth also presented evidence that she suffered from short- and long-term memory loss, headaches, blackouts, and depression, although not all of these ailments were documented in her medical records. Her ex-husband testified that the accident—and Learmonth's ensuing physical and emotional problems—were the cause of their divorce. Evidence was also offered of Learmonth's decreased capacities for housecleaning, playing with her son, and taking care of herself.
Learmonth has held three jobs since the accident—waitressing at a restaurant, selling clothes at a retail store, and working as a bank teller. She left the restaurant because she could not perform the tasks required due to physical and emotional problems; her injured collarbone prevented her from lifting the server trays over her head, as required, while the emotional problems manifested themselves in frequent crying. She left her retail job because it entailed too much standing, and left the teller job on her doctor's recommendation due to the pain she experienced from sitting and standing for long periods of time.
At the conclusion of the trial, the jury found Sears liable for Learmonth's injuries and awarded her $4 million in compensatory damages. The verdict on its face did not divide the award into separate categories, but the parties agree that the total award can be divided as follows: approximately $1.2 million for lost earnings; $573,000 in past and future medical expenses; and approximately $2.2 million in non-economic damages.
Sears moved for a new trial, arguing that Learmonth's counsel made improper comments during opening and closing statements, that the district court admitted improper evidence at trial, and that the jury's verdict was so exaggerated that it reflected bias, passion, and prejudice. Sears moved in the alternative for remittitur on the grounds that the award exceeded both the bounds of reasonable recovery for injuries of the type Learmonth sustained, as well as Mississippi's statutory cap of $1 million on non-economic damages, Miss.Code Ann. § 11–1–60(2)(b) (Supp.2010). Learmonth argued, for her part, that Section 11–1–60(2)(b) violates the Mississippi constitution.
The district court denied Sears' motion for a new trial, but rejected Learmonth's challenge to the constitutionality of Section 11–1–60(2)(b) and remitted the non-economic damages award to $1 million. This appeal and cross-appeal followed.
Sears argues that the district court erred in denying a new trial based on improper comments made by plaintiff's counsel during the opening and closing statements, and the admission of irrelevant and prejudicial evidence at trial. ...
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Summation
...to show this dismissive effort rose to the level of affecting the defendant’s substantial rights. Learmonth v. Sears, Roebuck, & Co. , 631 F.3d 724, 732 (5th Cir. 2011). When an opening or closing argument is challenged for impropriety or error, the entire argument is reviewed within the co......