Vanskike v. Union Pacific R. Co.

• Decision Date: 16 January 1984
• Docket Number: Nos. 82-2526,82-2542,s. 82-2526
• Citation: 725 F.2d 1146
• Parties: 14 Fed. R. Evid. Serv. 1728 Warren VANSKIKE, Appellee, v. UNION PACIFIC RAILROAD COMPANY, a corporation, and Burlington Northern Railroad Company, a corporation, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1146

725 F.2d 1146

14 Fed. R. Evid. Serv. 1728

Warren VANSKIKE, Appellee, v. UNION PACIFIC RAILROAD COMPANY, a corporation, and Burlington Northern Railroad Company, a

corporation, Appellants.

Nos. 82-2526, 82-2542.

United States Court of Appeals,

Eighth Circuit.

Submitted Nov. 15, 1983.

Decided Jan. 16, 1984.

James F. Duncan, Daniel Bukovac, Kansas City, Mo., for appellant Union Pacific R. Co.; Watson, Ess, Marshall & Enggas, Kansas City, Mo., of counsel.

Thomas Strong, Mathew W. Placzek, John Wooddell, Strong, Placzek & Wooddell, P.C., Springfield, Mo., for appellee.

Before LAY, Chief Judge, FAGG, Circuit Judge, and NICHOL, ^* Senior District Judge.

NICHOL, Senior District Judge.

This is the second time that the case of Warren Vanskike has been before this court. ¹ In this second appeal, defendants Union Pacific Railroad Company (Union Pacific) and Burlington Northern Railroad Company (Burlington Northern) appeal from a judgment for plaintiff Warren Vanskike entered by the district court ² following a jury verdict. Union Pacific and Burlington Northern appeal from the district court's denial of their post-trial motions for a new trial or, in the alternative, for a remittitur. Burlington Northern is the successor-in-interest to one of the original defendants, St. Louis-San Francisco Railroad Company (Frisco). We affirm the district court.

Warren Vanskike suffered injuries while he was hitching a semitrailer to a piggyback railroad flatcar owned by Union Pacific and in the possession of Frisco. One of two hitches manufactured by ACF Industries, Inc. (ACF) collapsed, crushing Warren's left arm between two vertical struts of the hitch. As a result, Warren's left arm was amputated between the shoulder and the elbow.

Plaintiff Warren Vanskike brought suit against ACF, Union Pacific and Frisco for damages. His wife Lucille brought an action on her own behalf for loss of consortium she sustained as a result of Warren's injuries. The two cases were consolidated for trial.

At trial, plaintiff proceeded on a theory of products liability against defendants ACF and Union Pacific. The action against Frisco was brought pursuant to the Federal Employers' Liability Act (FELA), 45 U.S.C. section 51 et seq. Cross-claims against each of the railroads and by each of the railroads against ACF were also tried. The jury returned a verdict of $903,000 for Warren Vanskike against all defendants and further allocated the verdict: 30% to ACF, 30% to Union Pacific, and 40% to Frisco. Lucille Vanskike was awarded the sum of $1,000 against defendants ACF and Union Pacific.

All defendants appealed from the verdict. Plaintiffs cross-appealed, arguing that their claim for punitive damages had been improperly rejected by the trial court. This court affirmed the denial of the punitive damages claim and affirmed on all other issues with respect to Lucille Vanskike. With respect to Warren Vanskike, however, we affirmed on the issue of liability and reversed and remanded to the district court for a new trial on only the damages issue. Prior to retrial, defendant ACF settled with plaintiffs and was dismissed from the lawsuit.

On retrial, the jury returned a verdict of $1,811,177.00 for Warren Vanskike. Using the apportionment from the first verdict, the district court entered judgment against Burlington Northern in the amount of $724,470.80 (40%) and against Union Pacific in the amount of $543,353.10 (30%). ³ Both defendants now appeal the verdict on the grounds that the plaintiff's counsel used improper closing argument which created bias and prejudice and resulted in a grossly excessive verdict. Union Pacific appeals the trial court's ruling limiting the cross-examination of plaintiff's expert witness. Burlington Northern appeals the trial court's ruling that evidence of plaintiff's contributory negligence was inadmissible at the second trial.

I. Propriety of Closing Argument and Excessiveness of Verdict.

Union Pacific and Burlington Northern urge that the district court erred in denying their motion for a new trial or, in the alternative, for a remittitur. Defendants argue that plaintiff's counsel used inflammatory statements in his closing argument. These remarks, they contend, caused bias and prejudice in the minds of the jury and resulted in a grossly excessive verdict for the plaintiff.

Closing arguments are made under the direct control of the trial court. Argument of counsel is a procedural question to be determined by federal law. Illinois Central Railroad v. Staples, 272 F.2d 829 (8th Cir.1959). Under federal law, considerable discretion is given to the trial court to control arguments. Yeargain v. National Dairy Products Corp., 317 F.2d 779 (8th Cir.1963). The standard of review on appeal is clear. "The district court is in a better position to determine whether prejudice has resulted from a closing argument and the appellate court will not disturb the district court's ruling unless there has been an abuse of discretion." Vanskike v. ACF Industries, Inc., 665 F.2d 188 (8th Cir.1981), quoting McDonald v. United Airlines, Inc., 365 F.2d 593 (10th Cir.1966).

To constitute reversible error, statements made in oral arguments must be plainly unwarranted and clearly injurious. Homan v. United States, 279 F.2d 767 (8th Cir.1960). After reviewing the record, this court finds no statements so prejudicial as to require reversal in this case. While the court does find oratorical exaggeration and provocative remarks in the closing arguments of counsel for both plaintiff and defendants, there is nothing in the record which strikes this court as plainly unwarranted or completely beyond the province of counsel in attempting to impress certain views on the minds of the jury. This court holds the fundamental belief that jurors are intelligent, discerning people and that they can usually sort out emotional and passionate arguments and follow what the court tells them to do.

Under the standards set out above, defendants must show that the statements are unwarranted and make a concrete showing of prejudice resulting from the argument. Defendants urge that an excessive jury verdict constitutes a showing of prejudice in this case. The test on appeal is whether the verdict "is so grossly excessive as to shock the conscience of this court." Drotzmanns, Inc. v. McGraw-Hill, Inc., 500 F.2d 830, 835 (8th Cir.1974).

The trial court has an opportunity to set aside a verdict or to order a remittitur if, in the opinion of the court, the jury has exceeded the limits of fair and reasonable compensation. Therefore, in reviewing a jury verdict on the grounds of excessiveness, this court has consistently applied the following standard:

(E)xcessiveness of a verdict is basically, and should be, a matter for the trial court which has had the benefit of hearing the testimony and of observing the demeanor of the witnesses and which knows the community and its standards, ... we shall continue to consider review ... not routinely and in every case, but only in those rare situations where we are pressed to conclude that there is "plain injustice" or a "monstrous" or "shocking" result. Solomon Dehydrating Co. v. Guyton, 294 F.2d 439, 447-448 (8th Cir.), cert. denied, 368 U.S. 929 [82 S.Ct. 366, 7 L.Ed.2d 192] (1961).

Appellants have cited numerous cases in which jury verdicts for similar injuries were less than $1.8 million and yet were deemed "excessive." Conversely, cases cited by appellee illustrate damage awards which are higher but are held to be "not excessive." Such comparisons are not greatly helpful because each case must be evaluated as an individual one, within the framework of its distinctive facts. Morrow v. Greyhound Lines, Inc., 541 F.2d 713 (8th Cir.1976).

Assessment of damages is within the sound discretion of the jury. Each case is evaluated by a different, randomly selected group of individual jurors.

(W)e must expect substantial disparities among juries as to what constitutes adequate compensation for certain types of pain and suffering. This is a litigious fact of life of which counsel, clients and insurance carriers are fully aware. Once they place their fate in the hands of a jury, then they should be prepared for the result.... They cannot expect the Court to extricate them in all cases where the award is higher or lower than hoped for or anticipated. Taken Alive v. Litzau, 551 F.2d 196 (8th Cir.1977), quoting Mainelli v. Haberstroh, 237 F.Supp. 190, 194 (M.D.Pa.1964), aff'd 344 F.2d 965 (3rd Cir.1965).

The retrial on the issue of damages lasted for two weeks. The jury and the trial court heard exhaustive testimony on the nature and extent of Warren Vanskike's injuries. The record shows that Warren was fully conscious during the forty-five minute period it took to free his arm from the collapsed hitch. He underwent several subsequent surgeries for amputation and stump repair. He suffered extensive psychological and emotional problems. Warren continues to experience severe pain from resulting neuromas and phantom sensations. An appellate court should be extremely hesitant to overturn a verdict which includes damages for pain and suffering. Taken Alive v. Litzau, supra.

This court notes that the verdict for the plaintiff on retrial was approximately twice the recovery in the first trial. Yet, under the facts presented at the second trial, the verdict is not grossly excessive. The trial court stated in its order ⁴

(T)he plaintiff's evidence of damages was much more significant and extensive at this second trial because of many events which had occurred between the two trials. For example, at the time of the first trial, the plaintiff had been fitted with a prosthesis which he was attempting to learn to use and wear and which he testified was so painful that he could not wear it for any extended period of time. Defendants' counsel intimated strongly in that trial that he was malingering and that many other people who had lost an...