Kazan v. Wolinski

• Decision Date: 18 November 1983
• Docket Number: No. 82-5733,82-5733
• Citation: 721 F.2d 911
• Parties: Charles W. KAZAN and Helen F. Kazan, his wife v. Melvin WOLINSKI and Anchor Motor Freight, Inc., jointly, severally or in the alternative. Appeal of Charles W. KAZAN.
• Court: U.S. Court of Appeals — Third Circuit

Page 911

721 F.2d 911

Charles W. KAZAN and Helen F. Kazan, his wife v. Melvin WOLINSKI and Anchor Motor Freight, Inc., jointly,

severally or in the alternative.

Appeal of Charles W. KAZAN.

No. 82-5733.

United States Court of Appeals,

Third Circuit.

Argued Sept. 13, 1983.

Decided Nov. 18, 1983.

William A. DeStefano (argued), Oliver, DeStefano, Pentima & Partridge, Philadelphia, Pa., for appellant; Joseph C. Visalli, Wildwood, N.J., of counsel.

Robert F. Novins (argued), James P. Brady, Novins, Farley, Grossman & York, Toms River, N.J., for appellees.

Before ADAMS, HUNTER and GARTH, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

I. INTRODUCTION

This appeal is taken by plaintiff Charles W. Kazan ("Kazan") from a judgment of the United States District Court for the District of New Jersey. Kazan prevailed in a jury trial in which the jury returned a $150,000 verdict against defendants Melvin Wolinski and Anchor Motor Freight, Inc. ("defendants"). The district court ordered a new trial when Kazan refused to remit $90,000. During the second trial, the court excluded certain evidence based on statements contained in a mid-deliberation jury communication in the first trial. The second jury returned a verdict of $50,000. Kazan appeals from the final judgment entered on the $50,000 verdict, contending that the district court erred by ordering a remittitur or new trial after the first jury verdict and by giving binding effect to the first jury's mid-deliberation note for purposes of the second trial. Because we reluctantly conclude that the district court erred in its treatment of the jury's mid-deliberation note, we will vacate the judgment of the district court entered on the second jury verdict and remand for a new trial.

II. DISCUSSION

A. Facts and Proceedings Below

This case arose out of an automobile collision. Kazan sued in federal court, claiming permanent and total disability as a result of injury to his back, neck and left arm. ¹ Federal jurisdiction was based on diversity of citizenship. See 28 U.S.C. Sec. 1332(a) (1976). Defendants did not contest liability and the case was tried to a jury on the issue of damages only. The jury received conflicting testimony regarding the extent of Kazan's injuries, the degree of his disability, if any, and the cause of his apparent back injury. [App. at 6a]. At the conclusion of the trial the jury retired with instructions to deliver a general verdict.

After one hour the jury sent a note to the trial judge. The note, which was hand-written by the jury foreman, stated in its entirety:

We have determined that the back injury is not the result of the accident. We, however, feel that compensation should be granted but we are undecided as to how to work out a formula for settlement. [App. at 14a-15a].

The trial judge conferred with counsel for all parties regarding the appropriate response to the jury's note. Counsel did not request that a record be made of that conference. The court thereafter made the following response to the jury:

I have discussed your communication to counsel and exhibited to them your note and in response thereto I just want to say this without repeating my entire charge on damages to you.

You have indicated that you feel compensation should be awarded--should be granted, but we are undecided as how to work out a formula for settlement.

Members of the jury, there is no exact formula. There isn't any mathematical procedure by which you can reach a determination as to how much damages you are to award to Mr. Kazan and Mrs. Kazan.

You are to take into consideration my charge or instructions on the damage phase of this case. And, you are to use your good common sense and your judgment in determining what is fair and just and reasonable compensation for those injuries which you have determined are a proximate cause [sic] of the automobile accident. [Transcript II at 103-04].

All counsel specifically approved the court's response. [Transcript II at 104].

The jury deliberated further and returned a general verdict in the amount of $150,000. Defendants moved for a new trial or, in the alternative, for a remittitur. The district court denied defendants' motion for the outright grant of a new trial, but determined that a verdict of $150,000 "shock[ed] the conscience" of the court and "would be a miscarriage of justice." [App. at 6a]. Accordingly, the district court ordered a new trial, again as to damages only, unless Kazan would agree to remit $90,000. Kazan declined the remittitur.

Prior to the second trial defendants moved in limine for an order declaring that the jury in the second trial would be bound by the first jury's determination that defendants had not caused Kazan's back injury. That motion was based on the mid-deliberation note of the first jury. The district court observed that its ruling on the earlier remittitur motion had relied in large part on the jury's mid-deliberation note. Although the court's earlier order granting a new trial had not expressly limited the issues to be presented to the second jury, the court granted defendants' in limine motion and excluded all evidence of Kazan's back injury on retrial. [App. at 20a, 22a]. Thus limited in the evidence that it received, the jury in the second trial returned a verdict of $50,000. This appeal followed.

B. The District Court's Remittitur Order

Kazan first contends that it was error for the district court to order a remittitur of $90,000 at the end of the first trial. Federal law governs the question whether a remittitur should be granted in diversity actions. See Donovan v. Penn Shipping Co., 429 U.S. 648, 649, 97 S.Ct. 835, 836, 51 L.Ed.2d 112 (1976). Where, as in this case, the proper legal standard has been applied, the district court's grant of a remittitur will be reversed only for an abuse of discretion. Cf. Draper v. Erie Railroad, 285 F.2d 255, 256 (3d Cir.1960) (motion for new trial predicated on excessive verdict). No such abuse occurred in this case.

In the first trial Kazan offered proof that he had been permanently and totally disabled as a result of injury to his neck, arm and back. An actuarial-economist testified that Kazan's future lost earnings would amount to $21,000 per year over seventeen years due to his inability to work as a truck driver. [App. at 9a]. That damage projection was premised on the assumption that Kazan's inability to work was caused by injuries, primarily the back injury, sustained in the automobile accident.

The district court noted that the evidence adduced at trial clearly demonstrated that the automobile accident had caused a cervical sprain to Kazan's neck and a surgically-correctable injury to his arm. There was testimony that the neck injury would be permanent. [App. at 9a].

The cause of Kazan's back injury, however, was hotly contested. Kazan testified that he first complained to a neurosurgeon about his back problems after the accident. [Transcript I at 69]. Kazan's treating physician testified that he believed that the back injury was caused by the accident. [Transcript I at 175]. On cross-examination, however, the treating physician testified that Kazan even prior to the accident suffered from a degenerative joint disease in the lower back. [Transcript I at 163-64]. He further testified that the consulting neurosurgeon found evidence of a vascular condition in the back and did not believe that the accident injured Kazan's back. [Transcript I at 175]. The early reports from the treating physician to Kazan's attorney did not mention back problems. [Transcript I at 169-70]. In addition, defendants offered expert testimony that the accident had not caused Kazan's back injury. [Transcript II at 41-44].

The trial judge, who was present to hear all the evidence and to observe the demeanor of all the witnesses, including the injured party himself, found that the jury's award of $150,000 was "grossly excessive" in light of the evidence produced. We cannot say that he abused his discretion when he made that finding. Although the evidence created a jury issue regarding the back injury, that evidence weighed decidedly in favor of defendants. Kazan's damage projection depended upon proof that his back injury was caused by the accident and resulted in his loss of employment. The neck and arm injury alone would not have been sufficient in this case to sustain an award of $150,000.

The district court noted that it could only speculate as to the reason for the jury's excessive verdict. The court then followed a proper procedure in cases such as this, where no clear judicial error or "pernicious influence" can be identified but where the verdict is so large as to shock the conscience of the court: the court ordered plaintiff to remit the portion of the verdict in excess of the maximum amount supportable by the evidence or, if the remittitur were refused, to submit to a new trial. See Scott v. Plante, 641 F.2d 117, 136 (3d Cir.1981), vacated on other grounds, --- U.S. ----, 102 S.Ct. 3474, 73 L.Ed.2d 1362 (1982); Perzeproski v. American President Lines, Ltd., 319 F.Supp. 1329, 1330 (E.D.Pa.1970).

Kazan argues that the district court impermissibly considered the jury's mid-deliberation note in determining whether the evidence could support a verdict of $150,000. ² We do not agree. Non-binding jury comments may be considered by the court in order to resolve ambiguities or ascertain the true sense of a jury verdict. See Griffin v. Matherne, 471 F.2d 911, 916-17 (5th Cir.1973) (unsolicited jury note and colloquy between judge and jury used to explain and reconcile arguably inconsistent responses to special interrogatories). In this case, the jury's note added support to the court's conclusion that a $150,000 verdict was grossly excessive in light of Kazan's weak case on the causation of the back injury.

There is a more important reason why we must dismiss Kazan's challenge to the district court's consideration of...