Ouachita Nat. Bank v. Tosco Corp., 81-1490

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Citation686 F.2d 1291
Docket NumberNo. 81-1490,81-1490
Parties11 Fed. R. Evid. Serv. 714 OUACHITA NATIONAL BANK, Curator of the Estate of Ted Rodgers; Barbara Rodgers; and Ted Rodgers, Appellants, v. TOSCO CORPORATION, Appellee.
Decision Date23 August 1982

Whetstone & Whetstone by Bernard Whetstone, Little Rock, Ark., for appellants.

Robert G. Compton, Brown, Compton & Prewett, Ltd., El Dorado, Ark., for appellee.

Before BRIGHT, HENLEY * and JOHN R. GIBSON, Circuit Judges.

HENLEY, Senior Circuit Judge.

This appeal is from the district court's 1 August 22, 1980 order granting a new trial on all issues in this personal injury action unless plaintiffs-appellants 2 consented to a remittitur, and from an adverse judgment entered at the close of the second trial. Appellants contend that the district court abused its discretion in ordering remittitur in the amount of remittitur ordered, and in its alternative order for a new trial on all issues. Appellants also contend that the district judge erred in denying their petition for reconsideration of the August 22, 1980 order and in failing to disqualify himself after having ordered a new trial. Finally, appellants allege that other errors occurred during retrial which necessitate reversal. For reasons to be stated, we remand for further proceedings.

The underlying action arose from a motor vehicle collision that occurred on October 23, 1978. The collision involved an automobile owned by the Tosco Corporation (Tosco) and driven by Tosco employee Raleigh Waller (Waller), and a loaded log truck driven by Ted Rodgers (Rodgers).

Both vehicles were travelling east on United States Highway No. 82, a paved two-lane highway. The truck driven by Rodgers was an undetermined distance behind the Tosco automobile as they approached a point where the Tosco vehicle attempted to turn left onto a county road. Waller contended that his left-hand blinker light was on; however, Rodgers contended that the Tosco vehicle's right-hand blinker light was on, and the automobile began turning into a parking lot on the right and then suddenly and without warning turned left into the path of Rodgers' vehicle, at which time the collision occurred.

After the collision, the log truck left the highway in a northeasterly direction, struck an above-the-ground gas meter and one or more pine trees, and came to rest several hundred feet from the intersection. Immediately after it stopped, Rodgers exited the truck from the passenger side and landed on his head on the ground. Rodgers sustained serious injuries resulting in quadriplegia.

After the first trial, the jury returned a verdict in the amount of $3.3 million for Rodgers and of $500,000.00 for Mrs. Rodgers. 3 Within ten days after entry of judgment, Tosco filed a Motion for Relief from Judgment under Rule 60(b), a Motion for New Trial under Rule 59, and a Motion for Judgment Notwithstanding the Verdict pursuant to Rule 50(b) of the Federal Rules of Civil Procedure. The parties filed affidavits and briefs in support of their positions on these motions, and on August 22, 1980 the district court ordered a remittitur to $1,312,762.17 for Rodgers and $250,000.00 for Mrs. Rodgers, or in the alternative a new trial. Appellants' petition to the district court for review of that order was denied, and a petition for Writ of Mandamus to this court was also denied.

Appellants elected to take a new trial rather than consent to a total award of $1,562,762.17. At the conclusion of the second trial, however, the jury returned a verdict in favor of Tosco, and the complaint was dismissed with prejudice. This appeal is both from the remittitur order and from the judgment following new trial.

A. THE APPLICABLE STANDARDS

It is settled law in this circuit that the district court, in considering a motion for new trial, must set aside a jury verdict where it has determined that the verdict is against the clear weight of the evidence, Fireman's Fund Ins. Co. v. Aalco Wrecking Co., 466 F.2d 179, 186 (8th Cir. 1972), cert. denied, 410 U.S. 930, 93 S.Ct. 1371, 35 L.Ed.2d 592 (1973), that it is the result of passion or prejudice, id.; Mueller v. Hubbard Milling Co., 573 F.2d 1029, 1039-40 (8th Cir.), cert. denied, 439 U.S. 865, 99 S.Ct. 189, 58 L.Ed.2d 174 (1978), or that the verdict is clearly excessive. Slatton v. Martin K. Eby Constr. Co., Inc., 506 F.2d 505, 508 (8th Cir. 1974), cert. denied, 421 U.S. 931, 95 S.Ct. 1657, 44 L.Ed.2d 88 (1975). Furthermore, the district court, in passing on such motions, is not required to view the evidence in the light most favorable to the non-movant; rather, "(i)t may weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain the verdict." Slatton v. Martin K. Eby Constr. Co., Inc., 506 F.2d at 508 n.4.

The standard ordinarily to be applied by the trial court in passing on a request for remittitur is somewhat different. Ordinarily, remittitur is to be granted only where the verdict is "so grossly excessive as to shock the conscience of (the) court." Drotzmanns, Inc. v. McGraw-Hill, Inc., 500 F.2d 830, 835 (8th Cir. 1974). See Stineman v. Fontbonne College, 664 F.2d 1082, 1088-89 (8th Cir. 1981).

The standard to be applied by this court in reviewing the trial court's order is clear. In Slatton v. Martin K. Eby Constr. Co., Inc., supra, this court was called upon to determine the standard to be applied in reviewing a district court's order of remittitur as a condition of denying a new trial motion. We concluded that such orders would not be disturbed in the absence of a clear abuse of discretion, and that the trial court's determination would be given considerable deference. 506 F.2d at 509. We also held that "the standard we will apply in determining whether there was an abuse of discretion in ordering the remittitur is whether the remittitur was ordered for an amount less than the jury could reasonably find." Id. at 508-09.

B. THE DISTRICT COURT'S ORDER

The district court, in considering the motion for new trial, found that Rodgers had not been asked a question prior to trial which would have elicited a prior felony conviction, that Rodgers had been granted a pardon on the basis of rehabilitation, and that evidence of that conviction probably could not be introduced at a new trial. Accordingly, it found that a new trial on the basis of that conviction was not warranted. The trial court also found that any alleged misconduct on Rodgers' part had no appreciable impact on the jury, and that the jury's finding as to liability was not against the great weight of the evidence. Our review of the record convinces us that these findings are not in error.

The district court, however, also said:

In his summation to the jury, counsel for plaintiff made a request for recovery of future nursing services in the sum of $2,215,320.68. Counsel repeatedly inquired of the medical witnesses whether the quality of care received by Mr. Rodgers could make a difference in his life expectancy. Counsel then drove home his request for future nursing services exceeding the degree deemed adequate by the doctors, stating:

So in a way you, in a very real way, very direct way, you can determine the life expectancy of Ted Rodgers, if you make an award here that will be adequate... You can determine very largely the life expectancy to Ted Rodgers yourself by the-what provision you make for him to be taken care of.

Improper or intemperate argument by counsel in summation may be grounds in itself for a new trial, where it tends to arouse undue passion and prejudice on the part of the jury, thereby depriving the opposing party of a fair trial. See Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. v. Moquin, 283 U.S. 520 (51 S.Ct. 501, 75 L.Ed. 1243) (1931); Houfakis (Koufakis) v. Carvel, 425 F.2d 892 (2 Cir. 1970); Klotz v. Sears, Roebuck & Co., 267 F.2d 53 (7 Cir. 1959). While the quoted argument, standing alone, might not be so improper as to warrant a new trial, the Court considers it so intemperate as to have contributed to the jury awarding to Ted Rodgers a sum grossly exceeding that reasonably supported by the evidence for future attendant care.

Rodgers v. Tosco Corp., No. 79-1038 (W.D.Ark., Memorandum Opinion filed Aug. 22, 1980).

The district court then applied the standards governing consideration of motions for new trial in its extensive review of the medical evidence as to Rodgers' requirements for attendant care. The court found that plaintiffs' contention that Rodgers would require round-the-clock professional care was against the great weight of the evidence, and concluded that a lay person with minimal training, working eight hours per day, seven days per week, could provide the reasonably necessary attendant care required. The court also found it evident that the jury gave substantial consideration to the exaggerated claim for nursing care in its award, and then said:

Where the verdict of a jury is clearly or solely due to passion or prejudice, the Court has no choice but to order a new trial. See 6A Moore's Federal Practice, 2d Ed., P 59.05(3) at p. 59-59. However, it is noted at 11 Federal Practice and Procedure, Wright and Miller, 1973, at page 103, in a quote from McCormick, Damages, 1935, § 19, that in cases where, as here, the sympathies or prejudices of the jury are appealed to naturally by the factual situation, to expect a verdict entirely free from sympathy, passion or prejudice would be to ask an impossibility, and that remittitur is appropriate.

Id. We have carefully reviewed the record and the briefs and arguments of counsel, as well as the district court's memorandum opinion, and we are not prepared to hold that the district court's order was inappropriate insofar as its grant of a new trial conditioned upon the rejection of a remittitur was concerned. However, the amount of remittitur ordered is...

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