Xiong v. Knight Transporation, Inc.

• Decision Date: 29 December 2014
• Docket Number: Civil Action No. 12–cv–01546–RBJ
• Parties: Pahoua Xiong, Plaintiff, v. Knight Transporation, Inc.,Defendant.
• Court: U.S. District Court — District of Colorado

77 F.Supp.3d 1016

Pahoua Xiong, Plaintiff

v.Knight Transporation, Inc.¹ Defendant.

Civil Action No. 12–cv–01546–RBJ

United States District Court, D. Colorado.

Signed December 29, 2014

Michael Patrick Kane, Murphy & Decker, P.C., Michael Lee Nimmo, Hillyard, Wahlberg, Kudla, Sloane & Woodruff, L.L.P., Denver, CO, for Plaintiff.

Daniel Sean Smith, Wood, Smith, Henning & Berman, LLP, Highlands Ranch, CO, Paul E. Collins, Treece Alfrey Musat, P.C., Denver, CO, for Defendant.

ORDER

R. Brooke Jackson, United States District Judge

This matter comes before the Court on Plaintiff's Motion for Entry of Final Judgment Pursuant to F.R.C.P. 58 [ECF No. 76] and Defendant Knight Transportation, Inc.'s Motion for New Trial Pursuant to F.R.C.P. 59 or in the Alternative Remittitur [ECF No. 79]. The Court addresses each motion in turn.

BACKGROUND

This case arises out of a car accident that took place on May 16, 2009. On May 1, 2012 the plaintiff, Ms. Xiong, filed this suit in state court alleging that the accident was caused in whole or in part by the defendant's negligence, and that she suffered injuries as a result. The case was removed to this Court on the basis of diversity of citizenship, and it eventually went to trial the week of August 18, 2014. At the end of a four-day trial the jury returned a verdict in favor of the plaintiff in the amount of $832,000. The breakdown of damages is as follows:

1. $282,000 for non-economic damages

2. $268,000 for economic damages

3. $282,000 for permanent impairment and disfigurement

Special Verdict Form B [ECF No. 69–7] at 2. The jury further found that the defendant was 60% at fault while the plaintiff was 40% at fault for her injuries. The award was thereby reduced by 40% to a total of $499,200.

The plaintiff has moved for entry of final judgment in the amount of $812,891.11. The plaintiff contends that in addition to the $499,200 verdict she is entitled to prejudgment interest in the amount of $273,475.04 and actual costs (not including taxable costs submitted pursuant to Fed. R. Civ. P. 54(d)(1) ) in the amount of $40,216.07. The defendant opposes this motion and also files a motion for new trial or, in the alternative, remittitur. The defendant contends that the jury's determination that Ms. Xiong suffered $832,000 in damages was excessive, and that the verdict is not supported by the evidence presented at trial. The defendant also contends that Ms. Xiong committed perjury and thereby perpetrated a fraud on the Court, mandating a new trial. The Court will address the defendant's motion first.

ANALYSIS

A. Defendant Knight Transportation, Inc.'s Motion for New Trial Pursuant to F.R.C.P. 59 or in the Alternative Remittitur [ECF No. 79].

“A district court has broad discretion in deciding whether to grant a motion for a new trial.” Harvey By & Through Harvey v. Gen. Motors Corp., 873 F.2d 1343, 1346 (10th Cir.1989). A federal court may set aside a jury verdict if the ends of justice require it. Holmes v. Wack, 464 F.2d 86, 88–89 (10th Cir.1972). However, “under the Seventh Amendment, the court may not substitute its judgment of the facts for that of the jury; it may only grant a new trial if it concludes that the jury's verdict was so against the weight of the evidence as to be unsupportable.”Skinner v. Total Petroleum, Inc., 859 F.2d 1439, 1443 (10th Cir.1988). “Where a new trial motion asserts that the jury verdict is not supported by the evidence, the verdict must stand unless it is clearly, decidedly, or overwhelmingly against the weight of the evidence.” Anaeme v. Diagnostek, Inc., 164 F.3d 1275, 1284 (10th Cir.1999) (internal quotation marks and citations omitted). The burden of proof is on the moving party, see Domann v. Vigil, 261 F.3d 980, 983 (10th Cir.2001), and the Court considers the record evidence in the light most favorable to the nonmoving party, see Anaeme, 164 F.3d at 1284.

In the alternative, “where the court believes that the judgment for damages is excessive, that is, it is against the weight of the evidence, the court may order a remittitur and alternatively direct that there be a new trial if the plaintiff refuses to accept it.” Holmes, 464 F.2d at 89. However, the jury's verdict is considered inviolate “ ‘absent an award so excessive or inadequate as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial....’ ” Campbell v. Bartlett, 975 F.2d 1569, 1577 (10th Cir.1992) (quoting Barnes v. Smith, 305 F.2d 226, 228 (10th Cir.1962) ). The moving party carries the “heavy burden of demonstrating that the verdict was clearly, decidedly, or overwhelmingly against the weight of the evidence.” Blanke v. Alexander, 152 F.3d 1224, 1236 (10th Cir.1998) (quoting Campbell, 975 F.2d at 1577 ) (internal quotation marks omitted). Indeed, the award of damages can be supported by any competent evidence tending to sustain it. Guides, Ltd. v. Yarmouth Grp. Prop. Mgmt., Inc. , 295 F.3d 1065, 1076 (10th Cir.2002) (citations omitted).

The Court also has the power to set aside a judgment procured by fraud under Fed. R. Civ.P. 60(b)(3).² Fraud on the court “requires a showing that one has acted with an intent to deceive or defraud the court.” Robinson v. Audi Aktiengesellschaft, 56 F.3d 1259, 1267 (10th Cir.1995). “A proper balance between the interests underlying finality on the one hand and allowing relief due to inequitable conduct on the other makes it essential that there be a showing of conscious wrongdoing—what can properly be characterized as a deliberate scheme to defraud—before relief from a final judgment is appropriate....” Id. “Generally speaking, only the most egregious misconduct, such as bribery of a judge or members of a jury, or the fabrication of evidence by a party in which an attorney is implicated will constitute a fraud on the court.” Weese v. Schukman, 98 F.3d 542, 552–53 (10th Cir.1996) (quoting Rozier v. Ford Motor Co., 573 F.2d 1332, 1338 (5th Cir.1978) ). “Fraud on the court ... is fraud which is directed to the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury.” United States v. Buck, 281 F.3d 1336, 1342 (10th Cir.2002) (quoting Bulloch v. United States, 763 F.2d 1115, 1121 (10th Cir.1985) ).

The defendant moves for a new trial on two basic premises: (a) the evidence at trial demonstrated that Ms. Xiong was suffering little if any pain or permanent impairment, and (b) Ms. Xiong committed fraud on the court by testifying otherwise. In the alternative, the defendant asks that the Court remit the damages award on the grounds that it was excessive.

While the jury certainly could have assigned lower dollar values to the plaintiff's pain and impairment, the defendant's argument that the verdict was wholly unsupported by the evidence is unpersuasive. The defendant bases its argument on (1) an affidavit of defense counsel, Paul Collins, declaring that a number of witnesses testified to Ms. Xiong's lack of pain or impairment; (2) one medical record; and (3) a series of photographs found by a paralegal in Mr. Collins' office on social media, after the trial, showing Ms. Xiong socializing with friends and family over the course of the last few years. [ECF Nos. 79–1 through 79–5]. None of these pieces of “evidence,” individually or in combination, give this Court grounds for granting a new trial under Fed. R. Civ. P. 59.

Mr. Collins' affidavit delivers a summary of the testimony he remembers as having been presented at trial, contending that it cannot support a finding that Ms. Xiong suffered any pain or impairment. [ECF No. 79–1]. The appropriate way to call the Court's attention to trial testimony would be citations to the trial transcript. Defense counsel's recollection of the evidence is obviously incomplete, as it does not credit testimony, including that of Ms. Xiong herself, supportive of her claims. Nor is the affidavit of defense counsel, an advocate, unbiased. Overall, counsel's opinions regarding the evidence has little persuasive value.

As to the medical record, while it indicates that Ms. Xiong did not appear to be in severe pain or to show evidence of chronic pain behavior when examined on April 3, 2014, the doctor's assessment was chronic pain primarily due to injuries to her thoracolumbar junction from T10 to T12. He told Ms. Xiong and her mother that surgery was an elective option if all reasonable conservative treatment has failed, and Ms. Xiong believes her residual pain and dysfunction are high enough to consider that option. [ECF No. 79–2 at 2]. And insofar as the defendant alleges that Ms. Xiong is not in pain because she has not had the surgery, Ms. Xiong was questioned about this alleged discrepancy at trial. The plaintiff explained that she did not elect to have the surgery because she was unable to afford it. Tr. Aug. 19, 2014 at 397 [ECF No. 97 at 127]. Her damages request included the estimated cost of surgery. Tr. Aug. 21, 2014 at 699 [ECF No. 99 at 22].

Finally, the defendant alleges that the social media photographs of Ms. Xiong make it “clear that Ms. Xiong has been engaging in many different social activities that she claims she could not do.” [ECF No. 79 ¶ 15]. The photos depict Ms. Xiong posing with friends and family at social functions over the last several years. See [ECF Nos. 79–4 & 79–5]. As indicated above, these photos (which frankly do little to support defendant in any event) were not presented at trial. A party moving for new trial on the basis of newly discovered evidence must show: “(1) the evidence was newly discovered since trial; (2) the moving party was diligent in discovering the new evidence; (3) the newly discovered evidence is not merely cumulative or impeaching; (4) the newly discovered evidence is material; and (5) that a new trial—with the newly discovered evidence—would probably produce a different result.” Sala v. United States, 251 F.R.D. 614, 617 (D.Colo.2008) (citing...