Rustenhaven v. American Airlines, Inc., 01-2861.

• Decision Date: 21 February 2003
• Docket Number: No. 01-2861.,01-2861.
• Citation: 320 F.3d 802
• Parties: Joe RUSTENHAVEN, husband; Mary Rustenhaven, wife, Appellees, v. AMERICAN AIRLINES, INC., Appellant,
• Court: U.S. Court of Appeals — Eighth Circuit

320 F.3d 802

Joe RUSTENHAVEN, husband; Mary Rustenhaven, wife, Appellees, v. AMERICAN AIRLINES, INC., Appellant,

No. 01-2861.

United States Court of Appeals, Eighth Circuit.

Submitted: April 16, 2002.

Filed: February 21, 2003.

Alan D. Reitzfeld, argued, New York, NY (Randal R. Craft, Jr., Michael E. Hale and D. Keith Fortner, on the brief), for appellant.

Robert R. Bodoin, argued, Fort Worth, TX (Mark Edwin Burge and John C. Burnside, on the brief), for appellee.

Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.

WOLLMAN, Circuit Judge.

Appellant American Airlines (American) appeals from the judgment entered on verdicts for appellees Joe and Mary Rustenhaven (Mr. and Mrs. Rustenhaven). We affirm, conditioned on the acceptance by the Rustenhavens of the remittiturs ordered on their respective verdicts.

The Rustenhavens brought suit for damages resulting from the crash of American's Flight 1420 in Little Rock, Arkansas, on June 1, 1999, for which American admitted liability.¹ They sought damages for Mr. Rustenhaven's lost past wages, his lost earning capacity, his past and future medical costs, and his pain and suffering and for Mrs. Rustenhaven's loss of consortium. After a four-day trial, the jury returned verdicts of $4,242,000 for Mr. Rustenhaven and $2,000,000 for Mrs. Rustenhaven. American renewed its motion for judgment as a matter of law and filed a motion for new trial, or, in the alternative, for remittitur, challenging the verdicts as excessive as a matter of law. It is from the district court's denial of those motions that American now appeals.

I.

Mr. Rustenhaven was traveling from California to Little Rock, Arkansas, aboard Flight 1420 in order to deliver a presentation as part of the relocation to Maumelle, Arkansas, of the military division of his employer, BEI. Sixty years old at the time, he had been selected to head the purchasing department and was scheduled to move to Arkansas at the end of June 1999. As recounted in Manus v. Am. Airlines, Inc., 314 F.3d 968 (8th Cir.2003), Flight 1420 was delayed at least twice and did not approach Little Rock until almost midnight on June 1, 1999. As the plane touched down during a raging thunderstorm, it ran off the runway and finally came to rest after striking an electrical stanchion and breaking into three pieces.

As the plane came to a stop, Mr. Rustenhaven, who was seated in an emergency exit row, was hit on the head and briefly lost consciousness. When he regained consciousness, he saw burning wires directly in front of him. He attempted to unbuckle his seatbelt, but could not do so. He was then struck on the head again and once again briefly lost consciousness. Upon regaining consciousness, he again attempted to escape his seatbelt and unsuccessfully tried to open the emergency exit door. As he arose from his seat after finally managing to release his seat belt, he could see that some of the passengers were afire. As he stepped out into the aisle, he was knocked down and trampled as other passengers pushed to escape the burning aircraft. Regaining his feet, he made his way to an over-wing exit, where he either slipped or was pushed onto the wing, once again striking his head and losing consciousness. After regaining consciousness, he dropped from the wing to the ground and was pulled away from the plane by another passenger. As he walked unsteadily in the rain and pelting hail to distance himself farther from the plane, he fell into a tributary of the Arkansas River and was swept a short way down stream. After he pulled himself from the river, he could see that the rear of the plane was on fire, and he saw a woman passenger, clothes smoking, approaching him. The two attempted to make their way back toward the airplane, but became separated in the tall grasses that surround the river. Eventually he reached an area where other survivors were gathered. He lay down on the ground and waited until fire fighters arrived. He was ultimately transported to a local hospital, where he remained until June 4. While hospitalized, he underwent a number of tests, including a CAT scan and MRI, which revealed no abnormalities.

Following his discharge from the hospital and up until the time of trial, Mr. Rustenhaven was examined and evaluated by three medical doctors, five psychiatrists, one clinical social worker, one neurologist, one neuropsychologist, and one psychotherapist. He was diagnosed as suffering from cognitive deficits, anxiety disorder, post-concussive syndrome, post-traumatic stress headaches, post-traumatic stress disorder (PTSD), major depression, and petit mal absence seizures. His symptoms included insomnia, flashbacks, nightmares, hallucinations, lack of concentration, forgetfulness, and increased startle response. At the time of trial, he was taking numerous prescribed medications to treat his sleeplessness, headaches, hallucinations, and seizure activity.

Two weeks after the crash, the Rustenhavens followed through on their plans to move to Arkansas, whereupon Mr. Rustenhaven started his new position as head of the purchasing department. Although he performed acceptably at his job, even earning an above average performance rating, both he and Mrs. Rustenhaven noticed changes in his behavior and outlook. He found it difficult to concentrate at work, called Mrs. Rustenhaven approximately twelve times a day, and rarely, if ever, worked a full day. He reduced his time in the office to half days and was ultimately placed on permanent disability.

Since the crash, the Rustenhavens have experienced a deterioration in their marital relationship. Because of Mr. Rustenhaven's lack of interest in such activities, they no longer take long walks, go fishing regularly, eat out at restaurants, or attend movies. They found it necessary to purchase a king-size bed because of Mr. Rustenhaven's frequent jerking and spasms from nightmares. They have not been sexually intimate since the crash.

Mr. Rustenhaven's relationship with his children and grandchildren has also changed. He no longer talks to his daughter or grandchildren on the telephone, instead using Mrs. Rustenhaven as a conduit through which to express himself. Although his son tries to visit often, their relationship is not the same as it was before the crash. On the one occasion that Mr. Rustenhaven attempted to attend a family gathering at his son's home, he hid in the bedroom because he could not endure the number of people or the related activity.

II.

American asserts that the awards to the Rustenhavens are excessive as a matter of law and that the district court abused its discretion by not granting American a new trial or, in the alternative, a remittitur.

A.

A district court's denial of a motion for new trial is reviewed for abuse of discretion. Lloyd v. Am. Airlines, Inc., 291 F.3d 503, 509 (8th Cir.2002) (citing Van Steenburgh v. Rival Co., 171 F.3d 1155, 1160 (8th Cir.1999)). The question of the excessiveness of a verdict in a diversity case such as this is judged in accordance with state substantive law. See Schaefer v. Spider Staging Corp., 275 F.3d 735, 738 (8th Cir.2002) (citing Gasperini v. Ctr. for Humanities, 518 U.S. 415, 426-38, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996)); Manus, 314 F.3d at 973. Under Arkansas's standard of review, a verdict is excessive where "the award is so great that it shocks the conscience of the court or demonstrates that the trier of fact was motivated by passion or prejudice." Peoples Bank & Trust Co. v. Globe Int'l Publ'g, Inc., 978 F.2d 1065, 1071 (8th Cir.1992). The manner in which we review the evidence is a procedural matter governed by federal law. Schaefer, 275 F.3d at 738.

"A motion for new trial is appropriately granted if the verdict is against the weight of the evidence and if allowing it to stand would result in a miscarriage of justice." Lloyd, 291 F.3d at 508-09. "On a motion for new trial, the district court is entitled to interpret the evidence and judge the credibility of witnesses, but it may not usurp the role of the jury by granting a new trial simply because it believes other inferences and conclusions are more reasonable." Van Steenburgh, 171 F.3d at 1160 (citing White v. Pence, 961 F.2d 776, 780-81 (8th Cir.1992)). "In reviewing the district court's decision, we give great deference to its judgment, because the district court has the benefit of hearing testimony and observing the demeanor of witnesses throughout the trial." Bonner v. ISP Techs., Inc., 259 F.3d 924, 932 (8th Cir.2001) (citing Sanford v. Crittenden Mem'l Hosp., 141 F.3d 882, 884 (8th Cir.1998)).

B.

We turn first to the question of the excessiveness of the loss of consortium award. Notwithstanding the deference we must afford the district court's determination, we conclude that the award is excessive under the Arkansas shock-the-conscience standard of review. In so holding, we note that in denying the new trial motion, the district court observed that the award was "quite high." Although there is evidence that supports some award for loss of consortium, Arkansas case law does not support an award of this size.

We must view each award on its own merits. Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452, 455-56 (1981). Past awards, however, can be useful in determining what is fair and reasonable according to the evidence presented at trial, and Arkansas courts look to previous cases for guidance. Scott v. Jansson, 257 Ark. 410, 516 S.W.2d 589, 592 (1974) (viewing evidence and amount of verdict "[i]n the light of our earlier cases").

Consortium includes "comfort, society, affection, services, and other indefinable elements reasonably expected from the injured [spouse]." Johnson Timber Corp. v. Sturdivant, 295 Ark. 622, 752 S.W.2d 241, 253 (1988), set aside on other grounds, 295 Ark. 663B, 758 S.W.2d 415 (1988). It may not include damages personal to the injured spouse. See Scott, 516 S.W.2d at 592; Bailey v. Stewart, 236 Ark. 80, 364 S.W.2d 662, 663-64 (1963...