McDonald v. Federal Laboratories, Inc., 83-1230

Decision Date03 January 1984
Docket NumberNo. 83-1230,83-1230
Citation724 F.2d 243
Parties14 Fed. R. Evid. Serv. 1732 William D. McDONALD, Plaintiff, Appellee, v. FEDERAL LABORATORIES, INC., Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

Stephen R. Kravetz, Foxboro, Mass., with whom Fine & Kravetz, and Howard Davis, Foxboro, Mass., were on brief, for defendant, appellant.

Richard J. Bennett, Boston, Mass., with whom Joseph P. Collins, Boston, Mass., was on brief, for plaintiff, appellee.

Before COFFIN, Circuit Judge, GIBSON, * Senior Circuit Judge, and BREYER, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Federal Laboratories Inc., the defendant in this breach of warranty and negligent design case, appeals a $789,650 jury verdict in favor of William McDonald claiming, inter alia, the amount of the verdict was excessive and thus the district court should have granted Federal's motion for a remittitur or a new trial. We affirm.

I.

The plaintiff McDonald, a 42 year old police officer, brought a breach of warranty and negligent design action for damages he sustained when a mace 1 cannister ("The Streamer"), manufactured by Federal, accidentally discharged while he was carrying it in a holster on his gun belt. The accident occurred at about 1:00 a.m. on July 9, 1979, while McDonald was answering a peace disturbance call. As McDonald exited the police car, the mace cannister banged against the car door, causing the mace contents to discharge. The mace penetrated through McDonald's police uniform, saturating his stomach, legs and groin area. McDonald's eyes and cheekbones were also burning. He immediately returned to the station to wash the exposed parts of his body. Though having a "funny feeling" in his pants or loin area, McDonald did not change his clothing because he believed that the mace could not have penetrated a heavy pair of police pants. He finished his duty tour at 8:00 a.m. on July 9, 1979, and went home.

Later in the day of July 9, 1979, McDonald began experiencing severe discomfort and blistering on his stomach, legs and groin area. He went to a local health center and received prescription medication from a dermatologist. Because of the severity of the blistering, McDonald was unable to return to work until July 29, 1979. Upon his return, McDonald continued to apply medication and bandages to the inflamed areas, but, after a month, the pain and itching became unbearable and McDonald discontinued work on September 29, 1979. During the next few months, McDonald's family physician, Dr. Baskies, prescribed various skin medications which proved ineffective in controlling McDonald's skin problem. On December 13, 1979, Dr. Baskies referred McDonald to Dr. Richard Brown, a dermatologist who treated McDonald through March 22, 1980, when he returned to duty. By the time of his return to duty, McDonald's skin problem was somewhat under control, though he still experienced redness and itching on his stomach and legs.

While on duty on August 2, 1980, McDonald was again exposed to mace, triggering a recurrence of the severe blistering. As a result, McDonald became unable to return to police work and was involuntarily retired in December 1981.

At trial, during November 1982, Dr. Brown testified that he continued treating McDonald after his re-exposure to mace, prescribing cortisone tablets, myacin drugs, and various skin creams. Dr. Brown diagnosed McDonald's skin disorder as contact dermatitis, traceable to the initial exposure to mace, and subsequent eczematous eruptions with sensitization to many substances, including mace, gasoline, and various solvents (e.g., paint thinner and turpentine). McDonald's dermatitis was characterized by constant itching, open sores, infection, exacerbations, inflammation and blistering. Dr. Brown concluded that McDonald's skin condition rendered him incapable of performing police work or any other work involving possible exposure to substances to which he had become sensitized.

Dr. Brown's testimony essentially echoed the findings of Dr. Edmund Finnerty, a dermatologist who examined McDonald on behalf of the defendant on June 15, 1982. Dr. Finnerty, noting multiple areas of eczema and dermatitis over many parts of McDonald's body, concluded that McDonald had sensitization dermatitis, rendering him disabled.

The jury and trial judge also had the benefit of observing some of the affected areas of McDonald's body, including his abdomen and thighs. McDonald testified that his scrotum and penis were similarly affected by recurring episodes of dermatitis. The blistering was in a state of remission when he testified at trial, which was some twenty-seven months after his re-exposure to mace.

McDonald's wife also testified, rather forcefully yet without undue passion, that her husband's dermatitis had never cleared-up and was adversely affecting his mental and physical condition as well as his enjoyment of conjugal relations.

The evidence concerning Federal's product liability included the testimony of plaintiff's expert, Mr. Schofield, that Federal's Streamer was poorly designed because it: (1) did not contain a locking device; and (2) had insufficient clearance around the plunger causing it to bind when pressure was exerted on it. Presumably, a locking device or greater clearance around the plunger would have prevented the plunger from activating when the mace cannister struck the police car door. Schofield testified that when Federal manufactured the Streamer, the technology of putting a locking device on aerosol cannisters was available and inexpensive.

Schofield also testified about the leather holster in which the Streamer was carried. The holster, containing a Smith and Wesson label, was clearly identified as not being manufactured by Federal, though Federal manufactured a similar holster. Schofield testified that the soft base of the holster increased the likelihood that the Streamer, having no locking device, would discharge upon impact.

In rebutting Schofield's claim of engineering defects, Federal presented the expert testimony of Kenneth Blakely, a Federal engineer, and Edwin Kalat, a chemist with experience in the aerosol industry. The court did not permit Kalat to testify as to the engineering aspects of the Streamer because he did not have the required skill, training and experience to qualify as an expert in that area.

The jury returned a total verdict of $929,000 in favor of McDonald, which was reduced to $789,650 to give effect to a jury finding of 15% comparative negligence on McDonald's part. Federal filed a motion for a new trial and/or a remittitur, claiming the verdict was grossly excessive. The trial judge expressed some surprise at the size of the award, it being about twice what he would have awarded, but nevertheless concluded that the verdict was not grossly excessive in view of McDonald's pain, suffering, humiliation, embarrassment, and loss of vocational ambition and meaningful home life.

II.

Federal's first and foremost argument is that the verdict size bears no reasonable relation to the injury sustained and should be remitted by this court. Federal points out that the only evidence on damages dealt with pain and suffering, McDonald's earnings at the time of retirement ($22,000 per year), and the nature and extent of his injury. There was no evidence of permanent disability sufficient to support a finding of diminished future earnings. Nor was there evidence as to McDonald's life expectancy or normal retirement. Also, the trial court purportedly invited the jury to speculate on McDonald's future lost earnings by failing to specify an appropriate present value discount rate. Federal alludes to various dermatitus cases in which smaller awards have been reduced as excessive. And, as an indication of excessiveness, Federal points to the trial judge's observation that the verdict was about twice as large as he would have awarded.

Our inquiry here is limited to determining whether the trial court abused its discretion in refusing to set aside the verdict as excessive. See 6 J. Moore, Moore's Federal Practice, p 59.08(7) p. 59-193 (2nd ed. 1976); see also Stafford v. Perini Corp., 475 F.2d 507, 512 (1st Cir.1973). Our guide for making this determination is whether the verdict was "grossly excessive", "inordinate", "shocking to the conscience of the court" or "so high that it would be a denial of justice to permit it to stand." Grunenthal v. Long Island R.R. Co., 393 U.S. 156, 159, 159 n. 4, 89 S.Ct. 331, 333, 333 n. 4, 21 L.Ed.2d 309 (1968), quoting, Dagnello v. Long R.R. Co., 289 F.2d 797, 802, 806 (2nd Cir.1961). 2 See also Betancourt v. J.C. Penney Co., Inc., 554 F.2d 1206, 1207 (1st Cir.1977). In applying this standard we "make a detailed appraisal of the evidence bearing on damages." Grunenthal, 393 U.S. at 159, 89 S.Ct. at 333. However, in doing so "we are constrained to view the evidence in the light most favorable to the plaintiff." Betancourt, 554 F.2d at 1207.

Viewing the evidence on damages in the light most favorable to McDonald, we do not regard the jury verdict as grossly excessive. Although there was no finding that McDonald was permanently disabled, it is clear that he was unable to do police work--his main vocational ambition--or any other work involving possible exposure to fumes or solvents. Indeed, McDonald's opportunities for work were severely restricted.

Beyond McDonald's prospective loss of future earnings, however, the jury had before it rather compelling evidence as to the grievous nature of the pain and suffering brought on by the dermatitus. Drs. Brown and Finnerty diagnoses, made nearly two years after McDonald's last exposure to mace, established that the dermatitus was characterized by constant itching, open sores, infection, inflammation and blistering on his abdomen, inner thighs, scrotal area, arms, and ankles. The jury also observed some of the affected areas of McDonald's body,...

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