Oakes v. Pittsburgh Corning Corp.

• Decision Date: 04 April 1989
• Docket Number: No. 88-341,88-341
• Citation: 14 Fla. L. Weekly 843,546 So.2d 427
• Parties: 14 Fla. L. Weekly 843 John OAKES and Winnie Oakes, Appellants, v. PITTSBURGH CORNING CORPORATION, the Celotex Corporation, Eagle-Picher Industries, Inc., Owens Corning Fiberglas Corporation, Owens-Illinois, Inc. and Keene Corporation, Appellees.
• Court: Florida District Court of Appeals

Page 427

546 So.2d 427

14 Fla. L. Weekly 843

John OAKES and Winnie Oakes, Appellants, v. PITTSBURGH CORNING CORPORATION, the Celotex Corporation, Eagle-Picher Industries, Inc., Owens Corning Fiberglas Corporation, Owens-Illinois, Inc. and Keene Corporation, Appellees.

No. 88-341.

District Court of Appeal of Florida,

Third District.

April 4, 1989.

Baron & Budd and Brent M. Rosenthal, Dallas, Tex., Louis S. Robles, Miami, for appellants.

Shakleford, Farrior, Stallings & Evans and Raymond T. Elligett, Jr., Tampa, for appellees.

Before SCHWARTZ, C.J., HUBBART, J., and E. EARLE ZEHMER, Associate Judge.

SCHWARTZ, Chief Judge.

After a severely contested four day trial in a case arising out of John Oakes's prolonged exposure to asbestos products manufactured by the defendants-appellees, the jury returned verdicts of $2,500,000 for Mr. Oakes and $175,000 in his wife's derivative action. It also assessed his comparative negligence, presumably based on his cigarette smoking, at twenty per cent. Upon post-trial motions, the trial judge ordered a remittitur of $1,140,000 from Mr. Oakes's gross verdict. The plaintiffs declined to accept the remittitur and instead have taken this appeal from the alternative order requiring a new trial on damages alone. We find that the remittitur-new trial order constitutes an abuse of the trial court's discretion and reverse it for entry of judgment on the verdicts.

We have carefully reviewed the grounds asserted by the trial judge ¹ for the relief granted the defendants and conclude that none are supportable by applicable principles of law as considered in the light of the record:

1. The ultimate factor in the trial court's decision was its conclusion that the amount returned by the jury was excessive, that is, simply stated, too high for the injuries sustained by Mr. Oakes. The essential problem with this conclusion is that, under our system, it is ordinarily, indeed almost invariably, the jury which is entrusted with the function of determining how much is enough and how much is too little or too much for the damages that have been demonstrated and described in the courtroom. Testing, however, by the applicable abuse of discretion standard, see Rety v. Greene, 546 So.2d 410 (Fla. 3d DCA 1989), the trial judge's conclusion that a deviation from this rule was in order and that a new trial was required, we cannot agree with that ruling. As a factual matter, it is perfectly plain that the injuries and damages to the plaintiff's well-being, to his right to freedom from physical and mental pain, and to the enjoyment of the remainder of his life were utterly devastating. ² In these circumstances, the jury's assessment of the money equivalent of these losses, together with the economic ones, while large on an absolute basis, was well within the proper exercise of its role in the resolution of these disputes. Accordingly, we consider that the case falls within that class of decisions in which the trial judge is deemed to have improperly substituted his judgment for that of the triers of fact and insupportably assumed the role of a seventh juror in the assessment of damages. This, a trial judge will not be permitted to do. Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978); Laskey v. Smith, 239 So.2d 13 (Fla.1970); Hodge v. Jacksonville Terminal Co., 234 So.2d 645 (Fla.1970), cert. denied, 400 U.S. 904, 91 S.Ct. 142, 27 L.Ed.2d 141 (1970); Deveaux v. McCrory Corp., 535 So.2d 349 (Fla. 3d DCA 1988); Case v. Bentley, 527 So.2d 939 (Fla. 2d DCA 1988); Evering v. Smithwick, 526 So.2d 185 (Fla. 3d DCA 1988). See generally Rety, 546 So.2d at 418. ³

2. The trial court purported to base its order also on the jury finding that twenty per cent comparative negligence was too low. It is clear, however, that a remittitur order may not properly be utilized to adjust the percentage of contributory negligence to reach a result consistent with the trial judge's view of the case. Cooper Transp., Inc. v. Mincey, 459 So.2d 339 (Fla. 3d DCA 1984), pet. for review denied, 472 So.2d 1181 (Fla.1985); St. Pierre v. Public Gas Co., 423 So.2d 949 (Fla. 3d DCA 1982). In addition and in any event, the twenty per cent jury figure was entirely consistent with the evidence so that there was no reasonable basis for the trial court's interference with the determination on this issue as well. See Wackenhut Corp. v. Canty, 359 So.2d at 430; Laskey v. Smith, 239 So.2d at 13; Hodge v. Jacksonville Terminal Co., 234 So.2d at 645.

3. Any disagreement as to the effect of Oakes's various diseases upon his ultimate condition and the causation of those constituent illnesses were, at most, the subject of differing medical opinion. Since it was solely for the jury to resolve these conflicts and consider the weight of the disputed testimony, the trial judge had no right to interfere. Fitzgerald v. Molle-Teeters, 520 So.2d 645, 648-49 (Fla. 2d DCA 1988) (trial court may not properly grant new trial in light of "substantial conflicting expert medical opinion concerning the cause of medical problems"), review denied, 529 So.2d 694 (Fla.1988); Eley v. Moris, 478 So.2d 1100, 1103-04 (Fla. 3d DCA 1985) (improper for trial court to grant new trial where conflicting medical testimony as to permanency for jury to resolve); North Dade Golf, Inc. v. Clarke, 439 So.2d 296, 298 (Fla. 3d DCA 1983) (trial judge unauthorized to substitute his judgment for that of jury on disputed question of whether defendant's negligence was the cause of plaintiff's heart attack), pet. for review denied, 449 So.2d 264 (Fla.1984); Perenic v. Castelli, 353 So.2d 1190, 1192 (Fla. 4th DCA 1977) (new trial order abuse of discretion where doctors' testimony conflicted as to permanent injury and damages), cert. denied, 359 So.2d 1211 (Fla.1978).

4. Nor did, as the trial court indicated, Oakes's pathetic physical condition constitute a permissible basis for setting the verdict aside. It is true that a finding that the jury was improperly influenced by considerations outside the record permits and may mandate a new trial. See Cloud v. Fallis, 110 So.2d 669 (Fla.1959), Miles v. Ware, 204 So.2d 524 (Fla. 3d DCA 1967), cert. denied, 210 So.2d 869 (Fla.1968). But Oakes's appearance was pre-eminently within the record itself as a circumstance which the jury was not only entitled to, but probably required to consider. Florida Greyhound Lines, Inc. v. Jones, 60 So.2d 396 (Fla.1952); Jeep Corp. v. Walker, 528 So.2d 1203 (Fla. 4th DCA 1988); Purvis v. Inter-County Tel. & Tel. Co., 203 So.2d 508 (Fla. 2d DCA 1967), cert. denied, 210 So.2d 223 (Fla.1968).

5. Finally, the lower court attributed $140,000 of the alleged excessiveness to the proposition that there was no evidence to support an award for future medical expenses which was requested in this amount by the plaintiffs' counsel and presumably awarded by the jury. This ruling was simply an error of law. See Rety, 546 So.2d at 420-421. The record contains ample medical testimony to support this particular element of damages.

For these reasons, we conclude that the order requiring a new trial is unjustified in all respects. Accordingly, it is reversed and the cause remanded with directions to enter judgment for the plaintiffs in accordance with the jury verdicts rendered below.

Reversed and remanded.

1 The order ultimately entered states as follows:

1. Defendants' Motion for Remittitur is granted. It is hereby ordered that the gross verdict for John Oakes returned in this cause January 22, 1988, is reduced by the total sum of ONE MILLION ONE HUNDRED FORTY THOUSAND ($1,140,000.00) DOLLARS. Following that reduction, the verdict for John Oakes will be further reduced by 20% (comparative negligence in accordance with the verdict) for a net verdict to John Oakes of $1,088,000.00. The grounds for the granting of this remittitur are contained in the Motion for Remittitur filed by the Defendants, the provisions of which are incorporated herein, the grounds stated by the court at the hearing on 2/4/88, and the following grounds:

a. The undersigned Circuit Court Judge, by designation and appointment of the Florida Supreme Court, presides over all asbestos personal injury lawsuits pending in Dade and Broward Counties and has presided over at least five complete asbestos injury jury trials in the past few years. Based on the experience of the undersigned in such cases, and based upon the reasons stated at the hearing on February 4, 1988, the verdict for John Oakes is excessive, is against the manifest weight of the evidence in this case and shocks the judicial conscience of this court.

b. The verdict is excessive, showing that the jury was influenced by sympathy, prejudice or matters outside of the...