Blevins v. Cessna Aircraft Co., 82-1533

• Decision Date: 01 March 1984
• Docket Number: No. 82-1533,82-1533
• Citation: 728 F.2d 1576
• Parties: 15 Fed. R. Evid. Serv. 462 Robert B. BLEVINS, Plaintiff-Appellee, v. CESSNA AIRCRAFT COMPANY, a Kansas Corporation, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1576

728 F.2d 1576

15 Fed. R. Evid. Serv. 462

Robert B. BLEVINS, Plaintiff-Appellee, v. CESSNA AIRCRAFT COMPANY, a Kansas Corporation, Defendant-Appellant.

No. 82-1533.

United States Court of Appeals Tenth Circuit.

March 1, 1984.

L.B. Ullstrom, Denver, Colo. (Robert P. Smith, Denver, Colo., was also on brief), for defendant-appellant.

John R. Hursh, Central Wyoming Law Associates, P.C., Riverton (William L. Miller, Thomas A. Fasse and Holly B. Brown, Riverton, Wyo., were also on brief), for plaintiff-appellee.

Before HOLLOWAY, BARRETT and LOGAN, Circuit Judges.

HOLLOWAY, Circuit Judge.

This is an appeal from a judgment of $2 million entered against defendant in a diversity case. A jury in the United States District Court for the District of Wyoming awarded the damages to plaintiff, a passenger aboard a Cessna Model 340 aircraft manufactured by defendant which was forced to make an emergency off-field landing in Riverton, Wyoming on July 30, 1978 after developing engine trouble.

Defendant requests that we reverse the judgment below and either order a new trial or a remittitur. Defendant contends that (1) certain evidentiary matters concerning plaintiff's cross-examination of defendant's experts and the admission of evidence of the aircraft's "crashworthiness" were prejudicial; (2) the $2 million verdict is excessive; (3) the district court failed to individually question the jurors concerning an allegedly prejudicial television newscast on aircraft safety; and (4) the district court gave erroneous jury instructions on the divisibility and enhanced nature of plaintiff's injuries.

We disagree with these contentions and affirm the judgment in all respects except that we modify the judgment, as the parties agree should be done, ¹ by reducing the judgment by $200,000, the amount plaintiff received pursuant to a pretrial settlement of his claim against the operator of the aircraft, as a setoff under Wyo.Stat. Sec. 1-1-113(a)(i) (1977).

I. Evidentiary Objections

1. Cross Examination of Defendant's Experts

Defendant argues that plaintiff's counsel used inadmissible hearsay in cross-examining defendant's experts Johnson and Thompson. Defendant contends that the testimony of these experts established that there was a gouge or depression in the soil at the crash site that was caused by the high impact force of the aircraft hitting the hillside. This evidence was crucial in supporting defendant's argument at trial that plaintiff's injuries were caused by the high impact forces which greatly exceeded the design strength of the aircraft required by FAA regulations. There was evidence at trial tending to show that plaintiff's injuries resulted from the failure of the aircraft's seat tracks on impact, ² which caused the seats to disengage, with plaintiff being thrown about the cabin, still strapped to his seat by the seat belt. Plaintiff's expert testified that the impact forces were well below the FAA required design strength levels. The impact force thus was critical in determining whether the seats failed in a situation which was within the FAA required strength levels.

We conclude that no reversible error is shown in connection with the cross-examination of defendant's experts. Plaintiff used Exhibit 359 in cross-examining expert Robinson. III R. 160-62. Exhibit 359 is a copy of an accident report prepared by Claude Underwood, an employee of defendant, a few days after the accident. Exhibit 359 was admitted into evidence at trial by stipulation of the parties. I R. 165. Plaintiff's counsel's use of Exhibit 359 in cross-examining defendant's expert Johnson therefore was proper.

Defendant also vigorously contends that plaintiff's counsel used inadmissible hearsay in cross-examining defendant's expert Thompson. Defendant relies on Bobb v. Modern Products, Inc., 648 F.2d 1051 (5th Cir.1981), in arguing that plaintiff's counsel improperly referred to Exhibit 358A, a diagram prepared by Underwood at his deposition prior to trial. This deposition was not admitted in evidence and when Exhibit 358A was offered, it was objected to and excluded. III R. 189. Defendant argues that the questioning concerning this exhibit constitutes reversible error because plaintiff questioned Thompson concerning the lack of a gouge being indicated on the diagram, which was not in evidence.

It is true that in cross-examining Thompson on the presence of a trench or gouge, which defendant sought to establish, plaintiff's counsel asked if Underwood had not drawn a diagram; counsel then started to show Exhibit 358A to Thompson even though the deposition and this deposition exhibit were not in evidence. When defendant objected to such use of the exhibit, the trial judge said the objection "is relevant," which we take to mean that the judge agreed with the substance of the objection. Id. at 187. Plaintiff's counsel then began to question Thompson again about the unadmitted Underwood deposition and diagram, despite the court's ruling. In light of the court's statement, counsel should not have done this unless and until the deposition and diagram exhibit were admitted.

However, we do not feel that reversible error occurred. An accident report prepared by Mr. Underwood, Exhibit 359, was in evidence; testimony properly developed that it contained no reference to a trench. Id. at 187. Moreover, when deposition Exhibit 358A was offered, defendant's objection was promptly sustained. Id. at 189. The instant case is thus somewhat different from Bobb, where the trial judge permitted reading from the hearsay report and the use of statements in the unadmitted report to impeach. 648 F.2d at 1055-56. In the circumstances before us, we find no reversible error.

We need not consider the alleged impropriety of references to Underwood by plaintiff's counsel during closing argument and to the absence of a gouge at the impact site in view of defendant's failure to timely object to these comments.

2. Evidence of the Aircraft's "Crashworthiness"

Defendant contends that the district court committed reversible error in permitting, over objection, testimony concerning the "crashworthiness" of the aircraft, in violation of the motion in limine. We conclude that any error committed in this regard was harmless in light of defendant's failure to show how he was prejudiced by this testimony.

II. The Claim of Excessiveness of the Verdict

Defendant makes several arguments to support his claim that the $2 million award is excessive. In examining these arguments, we are mindful that the district court stated in its order denying defendant's motion for a new trial that:

Defendant argues that the damages awarded in this case were so great that they reflect bias, prejudice, and passion on the part of the jury. A $2 million verdict is generous indeed. Yet in light of the evidence introduced at trial and the instructions read to the jury regarding damages, it cannot be said that the verdict was so excessive as to mandate the grant of a new trial.

III R. 598.

We must afford this conclusion by the trial judge considerable deference on appeal. See, e.g., Holmes v. Wack, 464 F.2d 86, 89 (10th Cir.1972) (trial court's ruling granting or denying motion for new trial reversed only for "gross abuse of discretion"); 6 J. Moore, Moore's Federal Practice p 59.05, at 59-59 (1982) ("The trial court's determination as to whether the verdict is the result of passion or prejudice will not be disturbed on appeal, unless the determination is clearly erroneous."). Moreover, "absent an award so excessive as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial, the jury's determination of the damages is considered inviolate." Malandris v. Merrill Lynch, Pierce, Fenner & Smith, Inc. 703 F.2d 1152, 1168 (10th Cir.1981) (en banc) (plurality opinion), cert. denied, --- U.S. ----, 104 S.Ct. 92, 78 L.Ed.2d 99 (1983); see also id. at 1181-82 (same) (Logan, J., dissenting); Metcalfe v. Atchison, Topeka and Santa Fe Railway Co., 491 F.2d 892, 898 (10th Cir.1974); Barnes v. Smith, 305 F.2d 226, 228 (10th Cir.1962).

Defendant argues that there is insufficient evidence to support the $1.3 million portion of the $2 million verdict attributable to plaintiff's pain, suffering and disability and that the pain and suffering award is particularly excessive in light of awards in other jurisdictions. ³ Appellant's Opening Brief at 11-15. We must disagree in light of the severe injuries suffered by plaintiff in the emergency off-field landing. The physician who treated plaintiff at the Riverton, Wyoming hospital testified regarding the extent of plaintiff's injuries. The physician testified that when plaintiff arrived at the hospital he was critically ill and in "tremendous pain," "fighting for his breath, really literally to stay alive." II R. 6, 37. The physician also stated that plaintiff had probably at least 25 to 30 fractures of his ribs and cartilages, that rib fractures are "very painful," and that "his chest was literally mush. You could take your hand and you could just take his chest and it was like putty. And you could feel all the bones crunching when you touched them." Id. at 16, 22. In order to keep plaintiff's lungs functioning, sterile salt water was pumped into his lungs. Suction catheters were inserted in his lungs every hour for several days. Id. at 28-31. The physician also testified that plaintiff was in "an awful lot of pain from his clavicle fracture." Id. at 17. Numerous bronchoscopes also were performed to suck mucous from plaintiff's lungs, a procedure the physician described as "very painful." Id. at 28.

Plaintiff spent a month in the hospital's intensive care unit. Id. at 33. The physician also testified that since leaving the hospital, plaintiff has suffered pain from, among other things, complications of his multiple rib fractures which resulted in further surgery, permanent...