This is аn appeal from a judgment entered on a jury verdict awarding damages and from an order of remittitur of damages in a diversity actiоn arising out of a car-truck collision in Tennessee.
Plaintiff-appellant Bobbie Jean Smith brought this negligence action to recоver for damages and losses arising from a motor vehicle collision which occurred on July 25, 1974. Plaintiff-appellant Jessie Mae Smith, his wife, sought to recover for loss of her husband’s services and consortium. *553 Defendant-appellee Swafford Furniture Company admitted liability for the accident and voluntarily paid Mr. Smith $8,506.17 prior to the institution of this lawsuit. The issue of damages was submitted to a jury, which returned an award of $44,797.83 fоr Mr. Smith and $9,000.00 for Mrs. Smith. When the amount paid by the defendant to Mr. Smith is considered together with the jury’s verdict, the total award amounted to $51,000.00. Believing thesе awards to be in excess of any sum which the jury might reasonably have found to have been the loss sustained by either plaintiff, the trial judge ordеred Mr. Smith to remit $17,297.83 and Mrs. Smith to remit $4,000.00, thus reducing the awards to $27,500.00 and $5,000.00 respectively.
Plaintiffs objected to the order of remittitur and chose a new triаl rather than accepting the remittitur. 1 At the second trial substantially the same evidence was introduced, but the jury returned a verdict of $16,000.00 fоr Mr. Smith and $0 for Mrs. Smith. After denying a motion for another new trial, the trial judge ordered an additur of $2,500.00 for Mrs. Smith.
In this appeal the plaintiffs contend that the verdict in the first trial was “clearly within the maximum limit of a reasonable range” and therefore remittitur was improper. Plaintiffs also assert that if the remittitur process was proper in the first trial, they were entitled to have the verdict set aside in the second trial and anothеr new trial ordered.
It has long been the rule that a federal district court has the power to condition the denial of a motion fоr a new trial upon consent to a remittitur.
Dimick v. Schiedt,
After scrutinizing the evidence on damages introduced at the first trial, we conclude that the trial judge’s order of remittitur was not an abuse of discretion. The inconclusive testimony of the medicаl experts who had examined or treated Mr. Smith indicated that the automobile accident had caused a temporary and non-permanent injury to Mr. Smith’s back or neck. Conspicuously absent was direct evidence from any physician establishing a causal relаtionship between the automobile accident and the long-term or permanent disability alleged by Mr. Smith. In fact, the evidence tended to show that Mr. Smith’s injury was a short-term, soft tissue ligamentos sprain.
The testimony of Dr. Vieth, the neurosurgeon who treated Mr. Smith beginning in September, 1974, indicated that Mr. Smith’s pain and related symptoms could not be explained by any objective medical diagnosis. It is true that almost two years aftеr the accident a medical examination revealed a minimal lumbar defect not present at the initial examination. Yet Dr. Viеth was unable to determine whether this development was related to the automobile accident. Significantly, Dr. Vieth concluded thаt changes in Mr. Smith’s back conditions could occur without an accident and that it was unreasonable for a patient to have sо many symptoms from an accident over so long a period of time without a medical examination finding some objective manifestation of injury.
*554 The testimony of the other medical experts was consistent with the diagnosis offered by Dr. Vieth. Dr. Frye, the orthopedic surgeon who treated Mr. Smith, found that, from an objective standpoint, there was very little evidence of any permanent partial disability. And Dr. Havron, the physician who initially examined Mr. Smith, was unable to express an opinion regarding the long-term consequences of the acсident.
Even though this medical testimony was inconclusive as to the nature and extent of any injuries experienced by Mr. Smith, the trial judge nevertheless viewed the evidence in a light most favorable to the plaintiffs before ordering a remittitur. The trial judge concluded that “[ajlthough thеre is a substantial question under the medical testimony whether all of these special damages were properly attributable tо the accident or whether they were attributable in substantial part to degenerative disc disease unrelated to the acсident, the Court is of the opinion that the jury, on the basis of the testimony of Mr. and Mrs. Smith, could conclude that they were attributable to the accident.” Even from this posture the trial judge concluded that the verdicts were “clearly excessive.”
This Court has granted a greater dеgree of deference to the decision of the trial judge where the remitted portion is not the subject of direct evidencе but rather results from inference drawn from the facts in evidence.
Manning v. Altec, Inc.,
As to plaintiff’s argument regarding the admissibility of certain medical records in the second trial, this court agrees with the district court that the medical records of plaintiff’s deceased physician were properly excluded under Federal Rule of Evidence 403.
Finally, we find no abuse of discretion in the district court’s denial of plaintiff’s motion for a new trial made after the close of the second trial. Nothing in the record indicates a deficiency in the second trial that would require yet another triаl.
Accordingly, the judgment of the district court is affirmed.
Notes
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Donovan v. Penn Shipping Co., Inc.,