Westbrook v. General Tire and Rubber Co.

• Decision Date: 11 March 1985
• Docket Number: No. 83-2733,83-2733
• Citation: 754 F.2d 1233
• Parties: Charles Franklin WESTBROOK, Jr., et al., Plaintiffs-Appellees, Pilot Point Ready-Mix, Inc., Intervenor-Appellee, v. GENERAL TIRE AND RUBBER COMPANY, etc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1233

754 F.2d 1233

53 USLW 2470

Charles Franklin WESTBROOK, Jr., et al., Plaintiffs-Appellees, Pilot Point Ready-Mix, Inc., Intervenor-Appellee, v. GENERAL TIRE AND RUBBER COMPANY, etc., Defendant-Appellant.

No. 83-2733.

United States Court of Appeals, Fifth Circuit.

March 11, 1985.

David W. Townend, Dallas, Tex., for defendant-appellant.

David M. Stagner, Sherman, Tex., for appellees.

Appeals from the United States District Court for the Eastern District of Texas.

Before CLARK, Chief Judge, GOLDBERG, and RUBIN, Circuit Judges.

PER CURIAM:

This products liability action arose out of an accident caused by a tire blow out. Defendant, General Tire and Rubber Company (General Tire), appeals from a jury verdict finding it liable and awarding damages for injuries and losses suffered by plaintiffs, Charles and Kathy Westbrook. The jury's verdict on liability is supported by the evidence and uninfluenced by prejudicial error. However, the award of damages, which is at or above the highest permissible range, results from the prejudicial influence of improper argument. The trial court abused its discretion in denying a new trial on the issue of damages. We remand for a new trial on the issue of damages only. ¹

General Tire requests reversal, a new trial, or in the alternative, remittitur. It asserts the district court erred in admitting the opinion testimony of Westbrook's tire expert without a proper predicate and in submitting the issue of liability to the jury without sufficient evidence. General Tire's request for a new trial asserts abuse of discretion in disqualifying General Tire's original counsel, in denying a one week continuance, and in improper comments by the trial judge. These contentions implicate matters within the discretion of the trial court and the jury's weighing of conflicting opinions and underlying fact. We find no merit to any of these contentions, nor any precedential reason to analyze them further. Therefore, we limit this opinion to a discussion of General Tire's complaints that the damages awarded to Charles and Kathy Westbrook were excessive.

I. Proof of Damages

The facts of the accident itself are undisputed. In mid-July 1979, Charles Westbrook was driving a cement mixer truck on a highway near McKinney, Texas when the right front tire, which was manufactured by General Tire, failed. The truck veered into a ditch and overturned.

The physical injuries suffered by Westbrook also are not substantially in dispute. Testimony by Dr. Robert Allred, the orthopedic physician who treated Westbrook on the day of the accident and thereafter, indicated that Westbrook suffered contusions, lacerations and burns on his shoulder, a broken nose, fractured ribs, abrasions and cartilage damage to his left knee, and pulled muscles in his back, thighs and legs. His most serious and debilitating injury was to his back. The odontoid process, which is a part of the second vertebra in the neck, at the base of the skull was fractured. Westbrook also suffered a compression fracture of a lumbar vertebra. An examination by a second orthopedic surgeon in November 1981 revealed evidence that a third vertebra was possibly fractured. Injuries to Westbrook's right hand required immediate surgery to repair a severed artery, nerve and tendon. Additional surgery was required in March 1980 to remove a band of scar tissue from his left knee.

As the fractured vertebrae in his neck and back healed, Westbrook wore a halo immobilization jacket for two months to prevent paraplegia. This device consisted of a metal ring which encircled Westbrook's head and was attached through the skull with four metal screws. The halo was connected by metal rods to a hard plastic vest which covered the front and back of Westbrook's torso in a harness-like brace.

A second orthopedic surgeon, Dr. David Webb, examined Westbrook in November 1981. Dr. Webb testified his examination revealed that motion was restricted in Westbrook's neck and lower back, his right hand evidenced multiple lacerations and a decreased sensation of feeling in the web space between the thumb and index finger and he had lost a slight degree of bending ability in his thumb. He believed Westbrook would be likely to have some problems with his knee in the future, causing "some disability." Dr. Webb noticed evidence of three fractured vertebrae, all of which appeared healed. He testified that because of these injuries Westbrook faced a greater probability of reinjury to his back and that continued bending and lifting would further aggravate his back problems. Dr. Webb also pointed out that Westbrook's neck injuries made him prone to more serious difficulties should he reinjure his neck. In Dr. Webb's opinion, Westbrook would be unable to work an eight hour day at jobs involving physical labor of the type he held prior to the accident; he probably would not pass a typical pre-employment physical, and truck driving would no longer be a suitable occupation because the ride was too rough.

Although the injuries were undisputed, their effect on Westbrook's post-accident earning capacity was contested. Westbrook, a 27 year old high school graduate at the time of the accident, was making $220 per week as a truck driver for Pilot Point Ready-Mix. he had been employed by Pilot Point for less than one month. Since graduating from high school in 1971, Westbrook had held a variety of jobs, including carpenter, cement finisher, roofer, dogcatcher and a member of the National Guard. In January 1980, six months after the accident, Westbrook returned to Pilot Point full time doing light work for the first two weeks until he could resume his regular truck driving duties. As a truck driver for Pilot Point, Westbrook did little or no lifting and stooping. Nevertheless, Westbrook testified the rough ride aggravated his back and caused him constant pain. He had to stop and rest his back for 15 to 20 minutes at each end of his route which reduced the number of loads he could run. A few times he had to stop at a roadside park to lie down on a picnic table. He had trouble sleeping at night and missed two or three days of work a month from back pain and sleeplessness. Westbrook wore a back brace while he was driving to alleviate the pain. He also took prescription pain medicine.

Westbrook testified that he left Pilot Point in 1981 because he could not make enough money on the reduced hours he was able to work. Westbrook went to work for another company as a truck driver. This job involved quite a bit of lifting. Westbrook strained his back on the second day, necessitating a trip to the emergency room for severe back spasms. Westbrook did not return to that job, but went to work for still another company a week later. This third truck driving job lasted one day because the schedule did not permit him to rest his back between loads. After yet another short lived attempt at truck driving, Westbrook sought a job that would require little lifting, stooping, or long periods of sitting. Between November, 1981 and March, 1982, he worked on a horse ranch as a welder earning $12.00 an hour. Westbrook was laid off when the ranch exhausted its finances, and he remained unemployed from March, 1982 until November, 1982 when he returned to the ranch, but was laid off again in January 1983. During the spring of 1983, he did occasional odd jobs, earned an average of $5.00-$6.00 per hour as a self-employed welder, and worked for two weeks as a cement truck driver in June of 1983. This driving job involved short delivery runs and little time in the truck, but some lifting which bothered his back. He resigned voluntarily because he expected the welding job at the ranch to become available again, but it did not. In the summer of 1983, he worked as a brick layer's helper at $5.00 an hour for a friend who allowed him to work at his own pace and did not require him to do heavy lifting. Still, after a few hours his back would stiffen, making him less productive for the rest of the day. From this evidence, the jury could have deduced that although Westbrook was eager to work, he would be unable to work as a truck driver or at jobs requiring physical labor.

Regarding his decreased ability to enjoy life, Westbrook testified he could no longer ride and break horses or water ski. He cannot sit for long periods in the car, as his back stiffens. He cannot help his wife much around the house and they no longer participate together in many leisure activities. He is uncomfortable walking great distances and must be careful of his left knee which frequently "pops out." Although he has been coon hunting more than 100 times since the accident, he no longer follows the dogs through the woods. Rather, he just sits on the back of the truck with his friends and listens to the dogs as they run.

Kathy Westbrook testified that since 1979 she has become the primary wage earner. She has held full time employment since 1974, except for time she took off to have a baby. Since the accident, she and her husband have been unable to ride horses together. He is less able to help around the house. He has trouble mowing the lawn because of his knee. She has to do most of the lifting and pulling around the house. She has to assist him getting out of the car. He is irritable when he comes home from work and often just lies down on the couch or the floor. Because he cannot hold down a job, he gets angry and frustrated more often; this has affected his relationship with the children. There have been financial problems, including repossession of Mrs. Westbrook's car and a foreclosure on their house. They had been married twelve years and have two children. Their sexual relations have dropped off from two or three times a week before the accident to less than once a week since the accident.

The jury, by special verdicts, awarded Charles Westbrook damages of $925,000, plus $7,011.89 for undisputed medical bills. It awarded $59,000 to Kathy...