Konkel v. Bob Evans Farms Inc.

• Decision Date: 04 January 1999
• Docket Number: No. 97-1824,97-1867.,97-1824
• Citation: 165 F.3d 275
• Parties: Carol M. KONKEL, Plaintiff-Appellee, v. BOB EVANS FARMS INCORPORATED, Defendant-Appellant, and Ecolab, Incorporated, Defendant. Carol M. Konkel, Plaintiff-Appellant, v. Bob Evans Farms Incorporated, Defendant-Appellee, and Ecolab, Incorporated, Defendant.
• Court: U.S. Court of Appeals — Fourth Circuit

165 F.3d 275

Carol M. KONKEL, Plaintiff-Appellee, v. BOB EVANS FARMS INCORPORATED, Defendant-Appellant, and Ecolab, Incorporated, Defendant.

Carol M. Konkel, Plaintiff-Appellant, v. Bob Evans Farms Incorporated, Defendant-Appellee, and Ecolab, Incorporated, Defendant.

Nos. 97-1824, 97-1867.

United States Court of Appeals, Fourth Circuit.

Argued September 24, 1998.

Decided January 4, 1999.

ARGUED: Steven Walter Bancroft, Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C., Fairfax, VA, for Appellant. Robert Theodore Mitchell, Jr., James Anthony Klenkar, Hall, Monahan, Engle, Mahan & Mitchell, Winchester, VA, for Appellee. ON BRIEF: Melissa S. Hogue, Michael J. Carita, Trichilo, Bancroft, McGavin, Horvath & Judkins, P.C., Fairfax, VA, for Appellant.

Before MURNAGHAN and HAMILTON, Circuit Judges, and MAGILL, Senior Circuit Judge of the United States Court of Appeals for the Eighth Circuit, sitting by designation.

OPINION

HAMILTON, Circuit Judge:

Bob Evans Farms, Inc. (Bob Evans), owner of a restaurant in Carlisle, Pennsylvania, appeals from a $1,000,000 judgment in favor of one of its customers, Carol Konkel (Konkel), as compensation for her physical and emotional damages flowing from her ingestion of hot tea, contaminated with Ecoline Finish cleaning detergent, served to her at Bob Evans.¹ The principal issue presented in this appeal is whether the magistrate judge abused his discretion in denying Bob Evans' motion pursuant to Federal Rule of Civil Procedure 59(a) for a new trial based upon the alleged excessiveness of the jury's compensatory damage award. Concluding that $25,000 in compensatory damages is the outermost award that could be sustained, we reduce the award to $25,000 or grant a new trial nisi remittitur at Konkel's option. With regard to the additional issues presented on appeal, we affirm the magistrate judge's denial of Bob Evans' alternative motions under Federal Rule of Civil Procedure 50(b) for judgment as a matter of law or for a new trial, his denial of Bob Evans' motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6), his denial of Konkel's motion to amend the ad damnum clause of her complaint to add a request for punitive damages, and his grant of Bob Evans' motion in limine to exclude evidence to support a claim for punitive damages.

I

On March 22, 1994, Konkel had dinner at Bob Evans and ordered hot tea with her meal. The waitress brought Konkel a carafe full of hot water, a tea bag, and a mug.² After allowing the tea to steep in the carafe, Konkel poured herself a full mug of hot tea and drank it. Shortly thereafter, the waitress inquired as to whether Konkel wanted a refill of hot water so that she could have a second mug of hot tea. Upon Konkel's affirmative response, the waitress poured hot water from a coffee pot into Konkel's carafe.

Konkel waited for the tea to steep in the carafe, poured herself a second mug of hot tea, and then swallowed one mouthful of it. Upon swallowing, Konkel noticed that the hot tea tasted soapy, and she felt a burning sensation in her throat. Konkel notified Bob Evans' staff that her hot tea tasted soapy, and the waitress and the manager smelled the hot tea and stated that the hot tea smelled like the Eco-line Finish cleaning detergent that Bob Evans used to clean its coffee pots. The manager concluded that the waitress had accidentally served Konkel from a coffee pot that contained a packet of Ecoline Finish cleaning detergent.

After leaving Bob Evans, Konkel continued to suffer pain in her chest and therefore visited the emergency room. At the emergency room, Dr. Lawrence Boyler, an emergency room physician, examined Konkel, diagnosed her slightly red throat as esophageal chemical burn, and estimated that she would recover rapidly. Almost a year after the incident at Bob Evans, Konkel suffered chest discomfort and visited her family physician, Dr. Edward Cullen, who performed tests producing normal results. Thereafter, Konkel visited two gastroenterology specialists who performed tests also producing normal results.

Despite the fact that all the tests on Konkel produced normal results, one of the specialists, Dr. Nicholas Snow, diagnosed Konkel as suffering from heightened visceral nociception (HVN)³ of the esophagus and prescribed her anti-depressants to numb the nerves in her esophagus. Dr. Snow concluded that Konkel's condition was the result of her ingestion of the "mouthful" of hot tea containing Eco-line Finish cleaning detergent at Bob Evans a year and a half earlier.

Thereafter, Konkel filed a complaint against Bob Evans in the Circuit Court of Clarke County, Virginia, alleging that Bob Evans acted negligently and in breach of its express and implied warranties "that the food and beverages served at Bob Evans were safe and fit for human consumption" when it served Konkel hot tea containing Eco-line Finish cleaning detergent. (J.A. 20). In her complaint, Konkel requested $1,000,000 in compensatory damages on each of her claims, but did not request punitive damages. Bob Evans subsequently removed the case to the United States District Court for the Western District of Virginia based upon diversity jurisdiction. See 28 U.S.C. § 1332. The case proceeded into the discovery phase, with the parties agreeing that the law of Pennsylvania applied to all substantive issues in the case.

Three days before the end of discovery, in supplemental answers to Bob Evans' interrogatories, Konkel requested punitive damages. In response, Bob Evans moved in limine to exclude evidence to support a claim for punitive damages because Konkel did not aver them in her complaint. Following the close of discovery, Konkel moved for summary judgment on all counts.

During a hearing on the motions, Konkel orally moved for leave to amend her ad damnum clause to request punitive damages, but the magistrate judge denied her motion. At the conclusion of the hearing, the magistrate judge denied Konkel's motion for summary judgment as to her negligence claim, but granted the motion as to her breach of warranties claim with respect to liability only. The magistrate judge granted Bob Evans' motion in limine to exclude evidence of punitive damages because Konkel did not allege sufficient facts in her complaint to give Bob Evans notice of her claim for punitive damages, and leave to amend at such a late date would prejudice Bob Evans.

The case proceeded to trial before a jury on the issue of damages for Bob Evans' breach of warranties and on the issue of whether Bob Evans' conduct constituted negligence. By consent of the parties, a magistrate judge presided over the trial. See 28 U.S.C. § 636(c). At trial, Konkel's theory of the case was that, as evidenced by Dr. Snow's expert testimony, Bob Evans' conduct caused her serious, substantial, and permanent physical injury that had a devastating impact on her life. Konkel testified that her HVN caused her to severely restrict her diet, thereby affecting her relationships with her husband, her family, and her friends. In response to Konkel's evidence, Bob Evans introduced the testimony of Dr. Anthony Kalloo. Dr. Kalloo acknowledged that HVN was a medical condition, but opined that the data was insufficient to diagnose Konkel with HVN and that Konkel's esophagus was normal.

At the close of Konkel's evidence, Bob Evans moved for judgment as a matter of law under Federal Rule of Civil Procedure 50(a) because Konkel had not submitted medical bills or records and the only evidence of causation was Dr. Snow's testimony. The magistrate judge granted Bob Evans' motion in part, excluding testimony of any medical expenses Konkel incurred in the past or expected to incur in the future and also excluding any instruction to the jury regarding medical expenses.

At the close of evidence, Konkel moved for judgment as a matter of law pursuant to Rule 50(a) on her negligence claim. The magistrate judge granted the motion in part, concluding that as a matter of law Bob Evans had breached its duty of care, but the magistrate judge sent to the jury the issue of what compensatory damages were proximately caused by Bob Evans' conduct. Specifically, on the issue of damages, the magistrate judge instructed the jury to determine whether Konkel had suffered or would suffer damages—past or future physical pain, mental anguish, humiliation, embarrassment, inconvenience, or loss of enjoyment of life—and if so, the amount of those damages. Following its deliberations, the jury found that Konkel suffered damages in the amount of $1,000,000 as a proximate result of Bob Evans' conduct.

Subsequently, Bob Evans moved for a new trial pursuant to Federal Rule of Civil Procedure 59(a) based upon the alleged excessiveness of the jury's compensatory damage award. Specifically, Bob Evans contended that the jury's compensatory damage award was excessive because Konkel had not submitted objective medical evidence of injury, medical expenses, lost wages, lost earning capacity, or loss of employment opportunities. Bob Evans also moved for judgment as a matter of law or in the alternative for a new trial pursuant to Federal Rule of Civil Procedure 50(b). The magistrate judge issued a joint order denying the Rule 59(a) and the Rule 50(b) alternative motions because Dr. Snow's testimony provided "a legally sufficient evidentiary basis for the jury's verdict." (J.A. 552). Additionally, the magistrate judge concluded that the jury's verdict was "not against the clear weight of the evidence," and "the outcome was not a miscarriage of justice." Id. Accordingly, the magistrate judge entered judgment in favor of Konkel in the amount of $1,000,000.

Thereafter, Bob Evans moved for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(6) based on jury misconduct. In support of its motion, Bob Evans attached an affidavit from Bob Evans' counsel's secretary. In the affidavit, the secretary stated that she had spoken to the foreman...