Pahoua Xiong v. Knight Transportation, Inc., 658 F. App'x 884

Background

In May 2009 Pahoua Xiong’s car collided with a Knight truck on I-76; jury apportioned fault 40% to Xiong and 60% to Knight.
Xiong sustained a T-11 compression fracture, was hospitalized five days, sought pain meds, declined physical therapy, and later alleged continuing pain and recommended spinal surgery she had not had for financial reasons.
Xiong claimed $95,108.67 in past medical expenses; a billing estimate placed the recommended surgery at $173,673.10.
Jury awarded $832,000 (pain & suffering $282,000; economic loss $268,000; physical impairment $282,000), reduced by 40% to $499,200.
After trial Knight found social-media photos and later obtained surveillance; it moved for a new trial (insufficient evidence and newly discovered evidence/fraud). District court denied the motion.
Knight sought to introduce details of Xiong’s separate 2010 accident lawsuit; the court limited evidence to notice that another accident and suit existed. Xiong sought statutory costs under Colo. Rev. Stat. § 13-17-202 based on an email stating counsel had authority to demand $675,000; the court denied costs as the email was too ambiguous to be a statutory settlement offer.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence for large pain, suffering, and impairment awards	Xiong: jury heard her testimony and medical testimony supporting pain, impairment, and future care	Knight: evidence showed minimal objective signs, inconsistencies, and potential exaggeration; award was excessive	Affirmed — verdict not so excessive as to shock the conscience; credibility and conflicting evidence for jury/district court to resolve.
Future medical expenses (necessity of recommended surgery)	Xiong: surgery was recommended and she cannot afford it; jury may award future medical costs	Knight: surgery not undergone, conservative care appropriate, so future surgery costs not recoverable	Affirmed — question for jury; failure to have surgery explained by financial inability and conflicting expert opinions.
Newly discovered post-trial photos/surveillance (new-trial motion)	Xiong: photos/surveillance do not undermine verdict; evidence ambiguous and could have been found earlier	Knight: photos and surveillance show inconsistency with claimed limitations and merit new trial	Affirmed — district court did not abuse discretion; evidence was discoverable earlier, largely impeaching/ambiguous.
Whether counsel’s email constituted an "offer of settlement" under Colo. Rev. Stat. § 13-17-202	Xiong: email stating counsel had authority to demand $675,000 should qualify as an offer for costs	Knight: email ambiguous and did not constitute a firm offer	Affirmed denial of costs — email too ambiguous (passive voice, no request for acceptance) to qualify as statutory offer.

Key Cases Cited

Blanke v. Alexander, 152 F.3d 1224 (10th Cir.) (standard for reviewing excessive damages and deference to jury on pain-and-suffering awards)
M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753 (10th Cir.) (verdict shocks-conscience standard)
Prager v. Campbell Cty. Mem’l Hosp., 731 F.3d 1046 (10th Cir.) (deference to district court on remittitur when verdict turns on witness credibility)
Dronsejko v. Thornton, 632 F.3d 658 (10th Cir.) (elements for new trial based on newly discovered evidence)
Richison v. Ernest Grp., 634 F.3d 1123 (10th Cir.) (forfeiture of appellate arguments not raised below)
Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965 (10th Cir.) (abuse-of-discretion standard for evidentiary rulings)
United States v. McComb, 519 F.3d 1049 (10th Cir.) (bounds of permissible choice in discretion review)
Garcia v. Wal-Mart Stores, Inc., 209 F.3d 1170 (10th Cir.) (applicability of state cost-shifting statute in federal diversity cases)
Scholz v. Metro. Pathologists, P.C., 851 P.2d 901 (Colo.) (mandatory nature of costs under Colo. Rev. Stat. § 13-17-202)
Centric-Jones Co. v. Hufnagel, 848 P.2d 942 (Colo.) (statutory interpretation of offer under Colorado law)