Mekdeci By and Through Mekdeci v. Merrell Nat. Laboratories, a Div. of Richardson-Merrell, Inc.

• Decision Date: 15 August 1983
• Docket Number: No. 81-5625,INC,RICHARDSON-MERREL,81-5625
• Citation: 711 F.2d 1510
• Parties: MEKDECI, David, an infant, By and Through Michael and Elizabeth MEKDECI, his natural guardians, and Michael and Elizabeth Mekdeci, Individually, Plaintiffs- Appellants, Cross-Appellees, v. MERRELL NATIONAL LABORATORIES, A DIVISION OF, a Delaware Corporation, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1510

711 F.2d 1510

MEKDECI, David, an infant, By and Through Michael and

Elizabeth MEKDECI, his natural guardians, and Michael and Elizabeth Mekdeci, Individually, Plaintiffs- Appellants, Cross-Appellees, v. MERRELL NATIONAL LABORATORIES, A DIVISION OF

RICHARDSON-MERRELL, INC., a Delaware Corporation,

Defendant-Appellee, Cross-Appellant.

No. 81-5625.

United States Court of Appeals, Eleventh Circuit.

Aug. 15, 1983.

J. Douglas Peters, John N. Markwick, Adrienne G. Southgate, Detroit, Mich., for plaintiffs-appellants, cross-appellees.

Lawrence E. Walsh, Oklahoma City, Okl., Davis, Polk & Wardwell by Guy Miller Struve, Ogden N. Lewis, Miriam G. Cedarbaum, Lynn E. Burath, Diane Krejsa, New York City, Gurney, Gurney & Hadley by Leon H. Handley, Orlando, Fla., for defendant-appellee, cross-appellant.

Appeals from the United States District Court for the Middle District of Florida.

Before FAY, HENDERSON and HATCHETT, Circuit Judges.

ALBERT J. HENDERSON, Circuit Judge:

The plaintiffs-appellants, Michael and Elizabeth Mekdeci and their infant son David, appeal the judgment of the United States District Court for the Middle District of Florida entered on a jury verdict for the defendant, Merrell-National Laboratories (Merrell), in this diversity products liability action. They allege several errors, primarily procedural, growing out of the lengthy proceedings in this case. Additionally, Merrell filed a cross-appeal, urging that the trial court erroneously denied its motions for directed verdict and for judgment notwithstanding the verdict. After careful consideration of the parties' various contentions, we affirm the judgment on direct appeal and dismiss the cross-appeal as moot.

I.

In 1975, Elizabeth Mekdeci gave birth to a son, David. The child suffered from a combination of birth defects, which included malformed and missing fingers and a missing pectoral muscle. Thereafter, she extensively investigated the possible origin of her son's injury and became convinced that a drug she had ingested for nausea during the pregnancy was the cause. That drug, Bendectin, is manufactured by the defendant.

Based on that conclusion, the Mekdecis, both individually and on behalf of their son, instituted the present suit against Merrell. In their complaint, they alleged Florida causes of action for strict liability, negligence, breach of warranty and fraud. At the end of a two month trial, the jury appeared to be deadlocked in its deliberations. The district court gave the jury further instruction, and soon afterward, the jury returned a verdict awarding the "plaintiff" $20,000.00, the amount stipulated by the parties as compensation for the parents' medical expenses. The verdict, however, denied any recovery on the child's individual cause of action. For that reason, the plaintiffs sought a new trial limited to a determination of damages. Declaring the jury's award to be a compromise verdict the district court ordered a new trial on all issues.

Prior to the second trial, the plaintiffs' attorneys made several unsuccessful attempts to withdraw as counsel for the Mekdecis and to obtain a continuance. The second trial proceeded as scheduled and resulted in a verdict absolving the defendant of all liability. The district court entered a judgment in conformance with the verdict and taxed the costs incurred by Merrell in both trials against the plaintiffs. This appeal, and the accompanying cross-appeal, followed.

II.

In their initial assignment of error, the Mekdecis assert that following the first trial, the district court abused its discretion by ordering a new trial on all issues, instead of an adjudication solely for the purpose of assessing the amount of the infant's damages. More specifically, they argue that the original verdict definitively established liability and that forcing them to litigate that issue again placed an unfair burden on them. The defendant, on the other hand, suggests that the district court correctly characterized the verdict as an improper compromise, thereby necessitating a complete new trial.

Of course, a district court's disposition of a motion for a new trial is discretionary, and absent an abuse of that discretion, its decision will not be disturbed on appeal. ¹ See, e.g., Williams v. City of Valdosta, 689 F.2d 964, 974 (11th Cir.1982); Lucas v. American Manufacturing Co., 630 F.2d 291, 293 (5th Cir.1980). ² Fed.R.Civ.P. 59(a) authorizes a trial court to grant a new trial "to all or any of the parties and on all or part of the issues ... for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." Traditionally, an inadequate award of damages may constitute a sufficient reason to set aside a jury verdict. See, e.g., Lucas, 630 F.2d at 293; see also C.A. May Marine Supply Co. v. Brunswick Corp., 649 F.2d 1049, 1053 (5th Cir.), cert. denied, 454 U.S. 1125, 102 S.Ct. 974, 71 L.Ed.2d 112 (1981).

While Rule 59 permits a limited retrial on damages in that instance, a partial new trial is appropriate only in certain circumstances. As the Supreme Court has instructed,

[w]here the practice permits a partial new trial, it may not properly be resorted to unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice.

Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515, 75 L.Ed. 1188, 1191 (1931); see also Lucas, 630 F.2d at 294. In accordance with that mandate, this court has required a complete new trial "when the issues of liability and damages were tried together and there are indications that the jury may have rendered a compromise verdict." Lucas, 630 F.2d at 294; see also Hatfield v. Seaboard Air Line Railroad Co., 396 F.2d 721, 724 (5th Cir.1968); see generally J. Moore, 6A Moore's Federal Practice p 59.06 (2d ed. 1979).

A compromise verdict results when jurors resolve their inability to make a determination with any certainty or unanimity on the issue of liability by finding inadequate damages. See Freight Terminals, Inc. v. Ryder System, Inc., 461 F.2d 1046, 1053 (5th Cir.1972). However, an insufficient damages verdict, standing alone, does not necessarily indicate a compromise. See, e.g., Hadra v. Herman Blum Consulting Engineers, 632 F.2d 1242, 1246 (5th Cir.1980) cert. denied, 451 U.S. 912, 101 S.Ct. 1983, 68 L.Ed.2d 301 (1981). Parker v. Wideman, 380 F.2d 433, 437 (5th Cir.1967). Ordinarily there must be other evidence demonstrating that the deficient monetary award resulted from an impermissible compromise. Compare Lucas, 630 F.2d at 293-94, and Hatfield, 396 F.2d at 723-24, with Hadra, 632 F.2d at 1246. If sufficiently persuasive indicia of a compromise are present, then the issues of liability and damages are inseparable and a complete new trial is necessary. See Lucas, 630 F.2d at 293-94; Hatfield, 396 F.2d at 723-24.

For example, in Lucas, the court reviewed a jury verdict finding the defendant liable, but awarding the plaintiff damages less than the minimum amount stipulated by the defendant. 630 F.2d at 292. Because of an approaching hurricane, the district court admonished the jury either to finish their deliberations within a brief period of time or to return on a later date. Id. at 293. In the view of the appellate court, the risk that this coercion produced the inadequate relief necessitated a new trial. Id. at 293-94. Additionally, believing that those same considerations may have led to a jury compromise, the court ordered a new trial on all issues. Id. at 294.

The court in Hatfield employed similar reasoning to reach an identical result. There, the jury returned a verdict against the defendant on liability, but assessed the plaintiff's damages at one dollar. 396 F.2d at 722. On appeal, the court required a new trial on both liability and damages. Id. at 723-24. Like the panel in Lucas, the court concluded that the same factors that necessitated a new trial also suggested that the verdict was a compromise, thereby dictating that the retrial encompass all issues. Id. at 724. The particular circumstances compelling that conclusion were

that the issues of liability were strongly contested, that there was some confusion on the part of the jury with regard to the contributory negligence issue, that the jury took two days to reach a verdict, and that neither party urged acceptance in the trial court of the verdict finally rendered.

Id. at 723.

Mindful of these principles, we turn to an examination of the record in this case. First, the verdict itself tends to support the plaintiffs' original contention that the jury's damage award was inadequate. In the blank space for designating the prevailing party, the jury merely marked "Plaintiff," without differentiating between the respective claims of the parents and the child. The jury then left unchanged the next paragraph of the verdict form, which reflected the parties' stipulation of the amount of the expenses, $20,000.00, incurred by the parents as a result of the injury. Nevertheless, the jury wrote "Nothing" in the third paragraph as the amount of compensatory damages due the child individually. The final portion of the verdict calling for punitive damages was left blank. Thus, although the defendant never disputed the child's damages, only the allegation that its product caused the injury, the jury denied the infant any compensatory relief, limiting the damages to items recoverable by the parents on their derivative claim. ³ Based on the uncontroverted evidence of David Mekdeci's damages, the district court correctly held that the award was inadequate.

Still, as previously noted, the insufficiency of the compensatory verdict by itself does not automatically establish an improper compromise, which would eliminate the possibility of a partial retrial limited to an assessment of damages. However, the sequence of events leading...