Phav v. Trueblood, Inc.

Decision Date02 August 1990
Docket NumberNo. 90-1177,90-1177
PartiesChat PHAV, Plaintiff, Appellee, v. TRUEBLOOD, INC., Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

D. Alice Olsen, with whom Lee Stephen MacPhee, Thomas M. Elcock and Morrison, Mahoney and Miller were on brief, for appellant.

Robert J. Doyle, with whom Kehoe, Doyle, Playter and Novick, Edward J. Santella, Kathleen M. Curley and the Office of Edward J. Santella were on brief, for appellee.

Before TORRUELLA, Circuit Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

BOWNES, Senior Circuit Judge.

Plaintiff Chat Phav lost the ends of two fingers in an accident at his place of work while operating a machine manufactured by defendant Trueblood, Inc. Phav, a Massachusetts resident, sued Trueblood, an Ohio corporation, in federal district court on the basis of diversity, claiming negligence and breach of implied warranty of merchantability under Massachusetts law. 1

At trial, the judge submitted the case to the jury on special questions. Five categories of questions were submitted to the jury: 1. Negligence (Design and Manufacture); 2. Negligence (Warning and Instructions); 3. Contributory Negligence; 4. Breach of Warranty; and 5. Damages. The jury found that the defendant was negligent in its design or manufacture of the machine and in its failure to provide adequate warnings or instructions about its use. It also found that the conduct of the plaintiff's employer, either standing alone or in combination with any negligence of the plaintiff, was the "sole proximate cause" of plaintiff's injuries. In answer to the breach of warranty questions, the jury found that the defendant breached its warranty to Phav and that the breach "proximately caused" his injuries. It awarded plaintiff $5,000 in damages, which was the exact amount of plaintiff's medical expenses as stipulated by the parties.

Plaintiff sought a new trial on the issue of damages, which defendant opposed. The district court allowed plaintiff's motion, ruling as follows:

The jury's parsimonious award of damages was outside the universe of possible awards once the jury had found the evidence sufficient to support liability; there being no indication of a compromise verdict, see generally Mekdeci v. Merrell Nat. Labs., 711 F.2d 1510, 1513-1515 (11th Cir.1983), the new trial will be limited to the question of damages.

After retrial on damages, a second jury awarded plaintiff $370,000.

Defendant appeals on the ground that the district court abused its discretion in granting a new trial on damages alone. It contends that the $5,000 award was not "outside the universe of possible awards" and therefore did not constitute grounds for a new trial. Alternatively, it argues that even if the district court could have found the $5,000 award inadequate, it should have ordered a new trial on liability as well as damages because there were sufficient indicia that the award resulted from a compromise verdict on liability. One of these indicia, defendant contends, was confusion of the jury as to the issue of causation generated by the district court's formulation of the special questions.

I.

A verdict may be set aside and new trial ordered "when the verdict is against the clear weight of the evidence, or is based upon evidence which is false, or will result in a clear miscarriage of justice." Torres-Troche v. Municipality of Yauco, 873 F.2d 499 (1st Cir.1989) (quoting Coffran v. Hitchcock Clinic, Inc., 683 F.2d 5, 6 (1st Cir.), cert. denied, 459 U.S. 1087, 103 S.Ct. 571, 74 L.Ed.2d 933 (1982)). Although the district court's discretion in disposing of a motion for new trial is not unlimited, its decision will not be disturbed on appeal absent clear abuse of that discretion. Velez VDA. De Perez v. Hospital del Maestro, 910 F.2d 1004, 1008 (1st Cir.1990); Freeman v. Package Mach. Co., 865 F.2d 1331, 1334 (1st Cir.1988). An inadequate damages award may constitute sufficient reason for a new trial. Mekdeci v. Merrell Nat'l Labs., 711 F.2d 1510, 1513 (11th Cir.1983).

Plaintiff's Damages Evidence

Plaintiff introduced evidence on three types of damages: medical expenses, pain and suffering, and lost earning capacity.

As to the first, the parties stipulated that plaintiff's medical expenses were $5,000.

As to the second, plaintiff sought to show pain and suffering through his own testimony, the testimony of his physician, and that of a friend. Through a translator, Phav testified that he immigrated to the United States from Cambodia in 1981, and, at the time of his accident was working at Cable Systems, Inc. in Everett, Massachusetts. His job was to operate a machine that molded plastic plugs onto computer cables. On the day of the accident, January 7, 1986, one of the dieheads into which he was inserting a cable became stuck. As he attempted to free the cable, the diehead opened upward very quickly, crushing the tips of his left long and index fingers. Phav yelled for help and with his supervisor's assistance extricated his hand from the machine. He felt pain in his arm and saw blood coming out of it. He went to a hospital and lost consciousness at some point. He was hospitalized for three days.

Dr. Richard Peinert, a plastic surgeon into whose care Phav came a month after the accident, testified that some two years later the stubs of Phav's fingers were still acutely sensitive to touch and cold temperatures, and bent backward in what is called a "swan's neck deformity."

Phav also testified that before the accident, he engaged in recreational basketball and volleyball and played the guitar and a traditional Cambodian musical instrument, but that since injuring his fingers he could no longer play these sports or instruments. A friend corroborated this testimony. Phav testified further that he considered the injury to be a social stigma because the deformity and his inability to work made him undesirable to women.

As to the third type of damages, lost earning capacity, plaintiff testified that he was out of work for almost two years following his accident. When he did obtain a job he was paid more per hour than he had been at Cable Systems ($6.25 compared to $5.25), but was at times unable to work because of pain in his fingers. A vocational expert testified on Phav's behalf that "if [Phav] is able to return to work of any kind it will be a direct entry [level position], [at] unskilled, minimum wage or slightly above, and he'll be locked in at that level."

Defendant's Damages Evidence

Trueblood introduced evidence that tended to undermine plaintiff's credibility in general and his claim of pain and suffering and lost earning capacity in particular. Phav testified that he understood only "a little bit of English" despite having lived in the United States for eight years and having taken a course in English as a second language. On cross-examination, Phav admitted that at the time of his accident he understood English sufficiently to order a meal in a restaurant, cash a check at a bank, understand television, comprehend street signs and read the newspaper. Phav testified that he was never warned not to place his hand in the molding machine; his supervisor and another Cable Systems employee testified that they had warned him not to do so. According to defendant, these inconsistencies undermined plaintiff's general credibility, giving the jury a basis for disbelieving his evidence concerning damages.

As to plaintiff's pain and suffering, Trueblood could not dispute that plaintiff suffered a crushing amputation of the tips of two fingers. However, as plaintiff admits in his brief, his evidence on pain and suffering was not overwhelming. For example, although Phav's doctor described Phav as subject to continuing painful sensitivity in his finger stubs, Phav's own description of his pain was minimal. He stated, through the court translator, that what he felt was a "quick pulse" in his arm.

As to lost earning capacity, Trueblood produced employment records showing Phav had worked for a contracting company in the summer of 1987; plaintiff testified he did not recall that job. Trueblood also introduced evidence showing that in two jobs Phav had held after his accident he made more per hour than he had at Cable Systems.

The district court found that the jury's damage award of $5,000 was a "parsimonious award outside the universe of possible awards once the jury had found sufficient evidence to support liability." Although a trial judge "should not act merely as a '13th juror,' " Borras v. Sea-Land Service, Inc., 586 F.2d 881, 887 (1st Cir.1978), we must keep in mind that he or she "has had the benefit of hearing the evidence and observing the demeanor of the witnesses." Clark v. Taylor, 710 F.2d 4, 13 (1st Cir.1983). Based on our review of the record, we hold that the court did not abuse its discretion in finding that the award was inadequate. We turn now to defendant's claim that if a new trial was in order, it should have been on all of the issues because the damages award, compensating plaintiff only for his medical expenses, was the result of a compromise on liability.

II.

Rule 59(a) of the Federal Rules of Civil Procedure provides that a new trial may be granted "on all or part of the issues." Where a verdict is set aside because of an inadequate damages award, retrial of all the issues is required "if the verdict 'could only have been a sympathy or compromise verdict.' " Spell v. McDaniel, 824 F.2d 1380, 1400 (4th Cir.1987), cert. denied, 484 U.S. 1027, 108 S.Ct. 752, 98 L.Ed.2d 765 (1988) (quoting Great Coastal Express, Inc. v. International Brotherhood of Teamsters, 511 F.2d 839, 846 (4th Cir.1975), cert. denied, 425 U.S. 975, 96 S.Ct. 2176, 48 L.Ed.2d 799 (1976)). " '[B]ut where there is no substantial indication that the liability and damages issues are inextricably interwoven ... a second trial limited to damages is entirely proper.' " Id. See also ...

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