Tammy Lou FONTENOT, as Administratrix of the Estate of Darryl Wayne Turner, Plaintiff-Appellee, and Devoid Turner, Plaintiff, v. TASER INTERNATIONAL, INC., Defendant-Appellant.
No. 12-1617.
United States Court of Appeals, Fourth Circuit.
Argued: Sept. 19, 2013. Decided: Nov. 22, 2013.
736 F.3d 318
The EAJA specifically grants district courts the discretion to reduce or deny an award “to the extent that the prevailing party unduly and unreasonably protracted the final resolution of the matter in controversy.”
III.
For the reasons stated above, we vacate the district court‘s opinion and remand for a reexamination of substantial justification. The issue of special circumstances under the EAJA was not before us because the trial court made no finding on that issue. If necessary on remand, the district court should also consider whether special circumstances would make an award of attorney‘s fees unjust.
VACATED AND REMANDED WITH INSTRUCTIONS.
ARGUED: Pamela B. Petersen, Taser International, Inc., Scottsdale, Arizona, for Appellant. John Christopher Burton, Law Offices of John Burton, Pasadena, California, for Appellee. ON BRIEF: John R. Maley, Barnes & Thornburg LLP, Indianapolis, Indiana; Scott D. MacLatchie, Womble Carlyle Sandridge & Rice, Charlotte, North Carolina, for Appellant. Charles A. Everage, Everage Law Firm, PLLC, Charlotte, North Carolina; Peter
Before TRAXLER, Chief Judge, and MOTZ and KEENAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion. Judge KEENAN wrote the majority opinion, in which Judge MOTZ joined. Chief Judge TRAXLER wrote a dissenting opinion.
BARBARA MILANO KEENAN, Circuit Judge:
Darryl Wayne Turner, age seventeen, died from cardiac arrest after a confrontation with police in which he was struck in the chest by electrical current emitted from a device commonly known as a “taser,” manufactured by TASER International, Inc. (TI). The police officer who discharged the taser aimed the device at Turner‘s chest based on training provided by the Charlotte Mecklenburg Police Department (CMPD or the department), which used instructional materials supplied by TI.
The particular taser employed in the incident, the Model X26 device (X26 taser), had been the subject of several academic studies. TI knew about these studies, in which researchers had concluded that the device posed a risk of ventricular fibrillation, a cause of cardiac arrest, especially when the electrical current from the taser was applied near the subject‘s heart. Nevertheless, TI failed to warn taser users to avoid deploying the taser‘s electrical current in proximity to the heart.
Tammy Lou Fontenot, Turner‘s mother and the administrator of his estate, initiated a product liability action against TI in
In this appeal, TI raises several arguments, including that the district court erred in barring from the jury‘s consideration TI‘s defense that Turner was contributorily negligent by engaging in the dispute and in refusing to comply with the police officer‘s directives. TI also contends that the damаges award, even as remitted, is not supported by the evidence. Upon our review, we hold that the district court did not err in entering judgment in favor of Fontenot on the liability aspect of the negligence claim in accordance with the jury‘s verdict. However, we also hold that the damages award is not supported by the evidence, and we remand the matter to the district court for a new trial limited to that issue. Accordingly, we affirm the district court‘s judgment in part, vacate it in part, and remand the matter for further proceedings with respect to damages.
I.
A.
Turner was an employee of a Food Lion supermarket located in Charlotte, North Carolina, where he had worked for about a year. On March 20, 2008, Turner was confronted by a Food Lion loss prevention investigator after Mary Blackert, one of Turner‘s supervisors, “reported” Turner for eating a convenience food item and drinking a bottle of water that he had obtained from the store. Turner admitted that he had consumed those items without paying for them, and he was allowed to return to work while his supervisors discussed the matter.
After eating lunch at his home, Turner returned to the supermarket dressed in a manner that did not comply with the store‘s employee dress code. Blackert told Turner to “clock out and to get himself together.” Turner refused, using profanity addressed to Blackert.
Blackert contacted the store manager, who instructed Blackert to terminate Turner‘s employment for insubordination. When Blackert informed Turner thаt he was fired, Turner refused to leave the store and continued arguing with her. Thereafter, Blackert placed a telephone call to a 911 operator and requested police assistance in removing Turner from the supermarket. During the entire incident, Turner acted in an aggressive manner and argued loudly with Blackert and the store manager. Turner also threw an umbrella and pushed a store display off a counter, but he did not make physical contact with anyone during the dispute.
CMPD Officer Jerry Dawson arrived at the Food Lion in response to Blackert‘s request for assistance. Upon entering the store, Officer Dawson heard yelling and cursing. He removed his X26 taser from its holster while approaching Turner, who continued to argue with his supervisors. Officer Dawson instructed Turner to “calm down,” but Turner continued behaving in an aggressive manner. Officer Dawson aimed the taser‘s red “laser dot” at Turner‘s chest, the location where Officer Dawson had been trained to aim. When
The X26 taser, which is shaped like a pistol, discharges two darts, one above the other, from a cartridge attached to the front of the device when its trigger is pulled.1 One dart struck Turner in the center of his chest, very close to his heart, and the other dart struck him near his ribcage. Because the taser is designed to incapacitate an individual by causing that person‘s muscles to “lock up,” Officer Dawson expected Turner to collapse, but Turner stayed on his feet and walked toward the store‘s exit while the taser‘s darts continued delivering an electrical current. Officer Dawson followed Turner as he walked with the taser‘s darts still attached to his body, instructing Turner to “get down.” During this period, Officer Dawson held down the taser‘s trigger, causing the device to continue emitting an electrical current, until Turner eventually collapsed 37 seconds after the device initially was activated. Officer Dawson discharged his taser on Turner for an additional five seconds because Turner did not comply with commands to put his hands behind his back after he had fallen to the ground.
When firefighters and paramedics arrived at the supermarket, they observed that Turner was experiencing ventricular fibrillation and was unresponsive.2 The rescue team performed CPR and defibrillation on Turner but, despite these efforts, Turner was pronounced dead after being taken to a hospital.3
B.
TI primarily markets and sells its conducted electrical weapons products, including the X26 taser, to law enforcement agencies. One such law-enforcement purchaser of the X26 taser was the CMPD, which purchased X26 tasers for use by all the officers in the department.
From the introduction of the X26 taser in 2003, through the events at issue in this case, TI instructed taser users that the electrical current emitted by the X26 taser had no effect on heart rhythm when tested on animals. Captain Michael Campagna, who administered the CMPD‘s taser training program, received training from TI that use of thе taser could not cause fibrillation of the human heart or cardiac arrest. TI also provided Captain Campagna and other users an “instructor‘s note” stating that even when “[t]he X26 was applied across the chest with the two probes in a ‘worst case’ scenario (the points most likely to stimulate the heart) ... the heart beat continues normally.... It is important to note that the heart rate does not change at all.”
Captain Campagna used this information and other material provided by TI to train CMPD officers, including Officer
TI also provided Captain Campagna other training materials, which instructed users of the X26 taser to aim for the “center of mass,” and used visual depictions of the taser‘s darts being fired at the middle of a person‘s chest. Based on this information, Officer Dawson and other CMPD officers were trained to aim the taser at a suspect‘s chest. Officer Dawson testified that, therefore, he had no reason to think that the act of firing the X26 taser at Turner‘s chest was more dangerous than aiming the device elsewhere, or that using the device in that manner could cause significant cardiac injury or death.4
As relevant to this case, the primary warning that TI provided to users of the X26 taser was included as part of the “TASER International Training Bulletin 12.0-04,” which TI issued in June 2005. In that document, TI cautioned that “[r]epeated, prolonged, and/or continuous exposure(s) to the TASER electrical discharge may cause strong muscle contractions that may impair breathing and respiration, particularly when the probes are placed across the chest or diaphragm. Users should avoid prolonged, extended, uninterrupted discharges or extensive multiple discharges whenever practicable....” (Emphasis added.) Notably, this TI Training Bulletin, which the CMPD provided to its officers, discussed only the potential for respiratory harm, rather than the risk of severe cardiac problems, resulting from the use of the X26 taser.
Shortly after TI issued the June 2005 Training Bulletin, TI received the results of a TI-funded study conducted by Dr. Dhanunjaya Lakkireddy concerning additional testing of the X26 taser. This study, which was published in the Journal of the American College of Cardiology, showed that the taser‘s electrical pulses can “capture” cardiac rhythms, potentially leading to ventricular fibrillation. The study further noted that if users avoided striking the subject‘s chest area with the taser‘s darts, the risk of ventricular fibrillation would be reduced significantly.
TI received the results of another study in 2006, which was conducted by Dr. Kumaraswamy Nanthakumar and was published in the same medical journal. Dr. Nanthakumar‘s study likewise showed a risk of ventricular fibrillation in test animals when darts fired from the X26 taser lodged near the subject animal‘s chest. Notably, the study showed that when the darts struck the animal in areas away from the chest, such as in the abdomen, the taser did not capture heart rhythms and, thus, using the taser in this manner avoided the risk of causing ventricular fibrillation.
These conclusions reached by Dr. Lakkireddy and Dr. Nanthakumar conflicted with TI‘s representations in its training materials that the X26 taser could not capture heart rhythms and was safe even when applied directly to a person‘s chest. Nevertheless, as confirmed by TI‘s chief executive officer and the company‘s vice president of training, TI did not alter its training materials to warn users of the X26 taser that shots to a person‘s chest could result in ventricular fibrillation, or that use
C.
Fontenot, as administrator of Turner‘s estate, filed a complaint against TI in a North Carolina Superior Court alleging negligence under North Carolina‘s product liability act,
TI removed the action to federal district court asserting diversity jurisdiction under
The district court granted Fontenot‘s motion and barred TI from submitting its contributory negligence defense to the jury. The court later explained that the statutory language at issue bars any recovery when the “[t]he claimant failed to exercise reasonable care under the circumstances in the use of the product.” See
Finding contributory negligence in this circumstance would immunize [TI] from ever being liable for a product defect. Police officers do not deploy a taser unless a suspect has acted at least unreasonably. Therefore, a person who has been tased would always be barred by contributory negligence from suing [TI].
The case proceeded to a jury trial. After Fontenot presented her case, TI made a motion seeking judgment as a matter of law on several bases, including that the evidence established as a matter of law that Officer Dawson misused the taser. The district court denied the motion and the case was submitted to the jury, which returned a verdict in Fontenot‘s favor and awarded her $10 million in compensatory damages.
The jury specified on the verdict form that TI unreasonably failed to provide an adequate warning or instruction, thereby creating an unreasonably dangerous condition about which TI knew or should have known, and that such failure to provide an adequate warning or instruction proximately caused Turner‘s death. The jury further stated on the verdict form that, with respect to TI‘s product misuse defense, Officer Dawson did not use the taser in a manner contrary to TI‘s instructions,
After the trial, TI renewed its earlier motion for judgment as a matter of law and, in the alternative, sought a new trial under
Addressing the $10 million damages award, the district court characterized the evidence of damages as “relatively thin,” and the court ultimately concluded that the award was excessive. The court initially remitted the award to $7.5 million, further remitted the award to about $6,156,503.65 after adjusting it for present value, and reduced that amount to $5,491,503.65 after deducting $40,000 Fontenot received from a Food Lion workers’ comрensation award and $625,000 that she received from a settlement with the City of Charlotte.6 After Fontenot accepted the reduced amount of $5,491,503.65, the district court entered final judgment in that amount. TI timely filed a notice of appeal.
II.
On appeal, TI raises four primary arguments, contending that the district court erred: (1) in barring TI‘s contributory negligence defense; (2) in refusing to award judgment in TI‘s favor when the evidence purportedly did not show that Officer Dawson would have used the taser differently had TI provided warnings about the risk of ventricular fibrillation; (3) in refusing to award judgment in TI‘s favor because Officer Dawson‘s use of the taser constituted product misuse; and (4) in entering judgment in an amount that was excessive and not supported by the evidence. We discuss these arguments in turn.
A.
We first address TI‘s contention that the district court erred in barring TI‘s contributory negligence defense. TI asserts that under the plain language of the product liability statute, and under general principles of North Carolina law, a claimant in a product liability action need not have “used” the product in order for the doctrine of contributory negligence to apply. We disagree with TI‘s argument.
Initially, we observe that the question before us raises an issue of first impression under North Carolina law. Our Court has on occasion certified state law questions to the highest court of a state in similar circumstances, but we are unable to do so here because North Carolina currently has no mechanism by which we may certify such questions. See Town of Nags Head v. Toloczko, 728 F.3d 391, 398 (4th Cir.2013). Accordingly, we must аttempt to determine how the Supreme Court of North Carolina would decide the issue. See McNair v. Lend Lease Trucks, Inc., 95 F.3d 325, 328 (4th Cir.1996). We consider whether contributory negligence may be raised as a defense under North Carolina
In
No manufacturer or seller shall be held liable in any product liability action if: ... [t]he claimant failed to exercise reasonable care under the circumstances in the use of the product, and such failure was a proximate cause of the occurrence that caused the injury or damage complained of.
We consider the plain words of
Applying these principles, we agree with Fontenot that
TI urges us to interpret the statute as mеrely requiring that a claimant failed to exercise reasonable care during an incident involving anyone‘s use of the product causing injury to the claimant, without regard to whether the claimant actually used the product at issue. That interpretation, however, would render superfluous or redundant the phrase “in the use of the product.” Under TI‘s suggested construction, we would consider only whether “[t]he claimant failed to exercise reasonable care under the circumstances,” thereby ignoring the additional words “in the use of the product” that the legislature included in
We acknowledge that
TI correctly observes that an amendment to a statute indicates that the legislature “intended to add to or to change the existing enactment.” State v. Mabry, 720 S.E.2d 697, 701 (N.C.Ct.App. 2011). However, TI cites no legislative history showing that this change in statutory language from “his” to “the” was anything other than the legislature‘s decision to make the language of that provision gender-neutral. Moreover, under North Carolina law, a court interpreting a statute may rely on the statute‘s legislative history only in instances in which the statutory language is ambiguous. See In re Vogler Realty, Inc., 365 N.C. 389, 722 S.E.2d 459, 462 (2012). Because we conclude that the language of
As the district court and the North Carolina Court of Appeals both have observed, every North Carolina product liability case addressing contributory negligence, whether under the current or former version of
In the two primary product liability cases on which TI relies, our decision in Jones v. Owens-Corning Fiberglas Corp., 69 F.3d 712 (4th Cir.1995), and the Supreme Court of North Carolina‘s decision in Nicholson v. American Safety Utility Corp., 346 N.C. 767, 488 S.E.2d 240 (1997), the respective claimants used the products at issue. In Jones, the claimants, workers in a factory in which products containing asbestos insulation were manufactured, sued the insulation‘s manufacturer after
This Court held that contributory negligence could be applicable under the defendant‘s theory, but observed that the defendant‘s “only possibility of prevailing ... require[d] proof that [the claimants] were given such a warning” about “the synergistic effect of cigarette smoking and asbestos exposure.” Id. at 721. Thus, we stated in Jones that the “statutory focus” of
In the present case, the record is devoid of any evidence that Turner knew or should have known that police deployment of the taser could cause him to suffer severe cardiac injury. Indeed, the record is undisputed that neither Officer Dawson nor any other members of the CMPD knew that such injury could be caused by use of the taser near a subject‘s heart. Thus, this crucial factual distinction between the present case and the circumstances discussed in Jones renders inapposite the ultimate result we reached there.
In Nicholson, an electrical lineman was injured when an energized power line came in contact with his head after his helmet was “blown off.” 488 S.E.2d at 241-42. That contact resulted in electricity surging through his body and exiting through his hand, on which he was wearing a rubber safety glove manufactured and sold by the defendants. Id. at 242. In the product liability action filed by Nicholson, the defendants asserted a contributory negligence defense, arguing that Nicholson failed to keep his helmet properly secured and continued working after it fell off. 476 S.E.2d at 679. After the trial court granted summary judgment to the defendants, the North Carolina Court of Appeals reversed, concluding that any negligence on Nicholson‘s part must relate to his use of the gloves, and that the evidence did not establish that Nicholson was negligent in such use. Id. at 679-80.
On appeal, the Supreme Court of North Carolina agreed that summary judgment in favor of the claimant on the contributory negligence defense was not appropriate, holding that issues of fact needed to be resolved. 488 S.E.2d at 245. Departing from the rationale adopted by the court of appeals, the court explained that a claimant‘s negligent behavior need not be confined to the claimant‘s use of the product itself for contributory negligence to lie, but that “all of the circumstances during the plaintiff‘s use of the product must be considered, not just plaintiff‘s conduct with respect to the product itself.” Id. at 244 (emphasis added). Thus, the decision in Nicholson, like the decision in Jones, did not hold that contributory negligence may apply even in cases in which the defendant did not make any use of the product at issue.
TI nevertheless asserts that its position is supported by various North Carolina court decisions outside the product liability context that cite principles applicable to negligence claims generally. However, the three North Carolina Court of Appeals cases on which TI relies are inapposite.
TI first cites Hinton v. City of Raleigh, in which a robbery suspect was shot and killed by police officers following the robbery. 46 N.C.App. 305, 264 S.E.2d 777, 778 (1980). The suspect‘s mother brought an action against the City of Raleigh and other defendants alleging a variety of claims, including negligent supervision and training. Id. The court of appeals affirmed the award of summary judgment in favor of the defеndants, noting that the evidence established that the decedent participated in an armed robbery in which a gun was used, and that he “went into a crouching position and pointed toward the officers” when he was ordered to halt. Id. at 779. In explaining its decision, the court observed, among other things, that the decedent‘s own actions contributed to the killing. Id.
Here, in contrast, the evidence showed that Turner‘s actions did not proximately contribute to his killing, which was caused by the application of electrical force to his chest rather than to other parts of his body. Nothing that Turner did caused Officer Dawson to aim the taser at Turner‘s chest, rather than at another area of his body. Thus, the decision in Hinton fails to support TI‘s position.
TI next relies on Braswell v. N.C. A & T State University, which involved a claimant who was injured when a security officer fired his pistol into the ground to disperse a crowd seeking to break into a college gymnasium. 5 N.C.App. 1, 168 S.E.2d 24, 29 (1969). The court of appeals held that the plaintiff was contributorily negligent because he joined the crowd despite knowing that the members of the crowd were “acting in an unruly and unlawful manner and that the officer had warned them to stop trying to break in the doors.” Id. at 31. Notably, the court stated that by joining the unruly crowd, “plaintiff assumed the risk of whatever injury he might receive as a result.”11 Id. (emphasis added). Accordingly, Braswell is inapposite because the “assumption of risk” doctrine on which the Braswell court
Finally, TI relies on Benton v. Hillcrest Foods, Inc., a case in which the claimants were shot in a restaurant by other patrons during a confrontation, but were barred from recovering damages from the restaurant‘s owner on the ground of contributory negligence. 136 N.C.App. 42, 524 S.E.2d 53, 58 (1999). The facts in Benton included the claimants’ acts of intentional provocation toward the shooters, and the claimants’ refusal to leave the restaurant through an available back door despite their knowledge that the shooters had left temporarily to obtain loaded guns from their car. Id. Thus, the facts in Benton are starkly different from those before us, rendering its holding inapposite to the present case.
We again note the absence of any North Carolina cases finding contributory negligence in a product liability action in which the claimant did not use the product at issue. This absence of analogous North Carolina case law is significant because, in construing the common law of a state, we have declined to expand state common law principles to encompass novel circumstances when the courts of that state have not done so first. See Time Warner Entm‘t-Advance/Newhouse P‘ship v. Carteret-Craven Elec. Membership Corp., 506 F.3d 304, 314-15 (4th Cir.2007) (“Time Warner has proffered no cases interpreting North Carolina law to extend the common law prohibition ... and we have found none.... We conclude accordingly that as a court sitting in diversity, we should not create or extend the North Carolina common law.“); Burris Chem., Inc. v. USX Corp., 10 F.3d 243, 247 (4th Cir.1993) (federal courts adjudicating issues of state law “rule upon state law as it exists and do not surmise or suggest its expansion“). In our view, it would be an expansion of North Carolina law if we permitted a contributory negligence defense here, when such a defense is not supported by the plain language of
Finally, we observe that application of the contributory negligence doctrine under the present circumstances would absolve TI of its responsibility to provide adequate warnings to persons using TI‘s tasers, and effectively would grant TI immunity from suit in North Carolina negligence actions that are based on police use of a taser on a suspect resisting arrest. At its core, TI‘s position is that contributory negligence should be applied as a blanket proposition to bar recovery for all incidents in which a person is involved in a dispute, does not surrender to authorities, and is subdued or killed by a police officer‘s use of a taser. Such a situation, however, will be present in nearly every instance in which a taser is deployed by a law enforcement officer. Moreover, such circumstances are the very reason why law enforcement agencies use products like the X26 taser.
Accepting TI‘s argument would have additional significant consequences, as TI essentially would have no duty in North Carolina to safely design its products or to provide adequate warnings to law enforcement customers such as the CMPD. We do not think that the Supreme Court of North Carolina would create such an extreme result based on the facts presented here. For these reasons, we hold that the district court did not err in precluding TI from asserting contributory negligence as an affirmative defense.
We next consider TI‘s argument that the district court erred in failing to direct a verdict in TI‘s favor because the evidence purportedly failed to establish that an appropriate warning about the dangers of the X26 taser would have caused Officer Dawson to use the taser in a different manner. We disagree with TI‘s argument.
We review de novo the district court‘s denial of a
Under North Carolina law, a claimant bringing a product liability action under a failure to warn theory must establish that the defendant‘s failure to provide an adequate warning or instruction was “a proximate cause of the harm.”
Additionally, Captain Campagna, who administered the CMPD‘s taser program, testified that until Turner‘s death, officers were instructed that TI‘s testing showed that the X26 taser did not affect heart rhythms, even when applied to a suspect‘s chest. Captain Campagna further testified that he “absolutely” would have wanted to know if testing showed a risk that application of the X26 taser to the chest of a suspect could affect the suspect‘s heart rhythms.
Given that Captain Campagna had issued a memorandum to CMPD officers relaying the additional safety information provided by TI in its June 2005 Training Bulletin, the jury reasonably may have inferred that Captain Campagna would have informed Officer Dawson and other
For these reasons, we reject TI‘s argument that Fontenot did not establish a causal link between TI‘s failure to issue warnings concerning the risk of cardiac arrest and Officer Dawson‘s use of the taser on Turner‘s chest. Accordingly, we hold that the district court did not err in denying this aspect of TI‘s motion for judgment as a matter of law.
C.
TI also argues that the district court erred in failing to award judgment in TI‘s favor on the basis of product misuse. TI contends that, as a matter of law, Officer Dawson misused the X26 device by employing it on Turner for 37 continuous seconds, and that such misuse was contrary to the instructions and warnings provided by TI. We disagree with TI‘s argument.
We review de novo the district court‘s denial of TI‘s motion for judgment as a matter of law on the issue of product misuse. See Myrick, 395 F.3d at 489. Judgment as a matter of law should not be entered unless the court concludes, after reviewing the entire record and considering it in the nonmoving party‘s favor, that “the evidence presented supports only one reasonable verdict, in favor of the moving party.” Dotson v. Pfizer, 558 F.3d 284, 292 (4th Cir.2009) (citation omitted).
Repeated, prolonged, and/or continuous exposure(s) to the TASER electrical discharge may cause strong muscle contractions that may impair breathing and respiration, particularly when the probes are placed across the chest or diaphragm. Users should avoid prolonged, extended, uninterrupted discharges or extensive multiple discharges whenever practicable in order to minimize the potential for over-exertion of the subject or potential impairment of full ability to breathe over a protracted time period.
(Emphasis added.)
Our review of this warning, in conjunction with the other evidence in the case, leads us to conclude that the jury had ample grounds on which to find that the warning was not “adequate.” As an initial matter, the warning pertains to a temporary breathing problem, rather than to the more serious risk of cardiac arrest.
Additionally, a jury also could conclude that the warning‘s “whenever practicable” clause rendered the warning vague and inadequate. Captain Campagna testified that he interpreted the “whenever practicable” language to mean that the taser could be applied continuously until the suspect fell to the ground or otherwise was secured. Likewise, Officer Dawson testified that he did not think that it was “practicable” to release the taser‘s trigger while Turner remained standing in defiance of a command to “get down.” Thus, based on the present record, TI‘s warnings concerning prolonged application of the X26 taser cannot be deemed “adequate” as a matter of law under
D.
Finally, we consider TI‘s argument that the district court‘s remittitur decision resulted in an excessive award that was not supported by the evidence.14 TI contends that Fontenot failed to prove to a reasonable level of certainty her entitlement to an award of that amount. Fontenot argues in opposition that the damages at issue in this case are not capable of precise measurement, and that the district court acted within its discretion in its decision on the remittitur.
We review for abuse of discretion a district court‘s decision with respect to a motion alleging that a jury‘s compensatory damages award is excessive as a matter of law. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 435-39, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996); Konkel v. Bob Evans Farms Inc., 165 F.3d 275, 280 (4th Cir.1999). In a diversity action, federal courts apply state law standards in considering whether the district court abused its discretion when ruling on a motion relating to a jury‘s damages award. Konkel, 165 F.3d at 280-81. In undertaking this review, we give “the benefit of every doubt to the judgment of the trial judge.” Id. (citation omitted).
In the present case, Fontenot sought compensatory damages under
North Carolina courts recognize that such damages often are not capable of “exact ascertainment.” Bowen v. Constructors Equip. Rental Co., 283 N.C. 395, 196 S.E.2d 789, 806 (1973). Nevertheless, “damages available under the statute are not automatic,” and instead “must be proved to a reasonable level of certainty, and may not be based on pure conjecture.” DiDonato v. Wortman, 320 N.C. 423, 358 S.E.2d 489, 493 (1987) (emphasis added).
As an initial matter, we observe that the only methodology suggested by Fontenot to aid the jury‘s calculation of compensatory damages was counsel‘s suggestion that the jury
take just some arbitrary, small, conservative number, like $1,000 for a week. Or if we were to take a bigger number like $2,000 for a week of this loss. And multiply it out [over a 40 year life expectancy], being conservative, rounding it down, you would get for each plaintiff, a range of let‘s say between [$]2 and [$]4 or $5 million.
(Emphasis added.) In initially reducing the damages award from $10 million to $7.5 million, the district court referenced counsel‘s suggested methodology in determining the “highest amount the jury could have properly awarded,” and stated that the evidence supporting damages was “relatively thin.”
Notably, Fontenot failed to present any evidence showing that Turner‘s services, care, and companionship had a value approaching $1000-$2000 per week, per parent. Additionally, there was no testimony concerning whether, and for what duration, Turner‘s parents reasonably expected Turner to continue providing services such as babysitting his younger siblings and assisting with household chores. Accordingly, Fontenot essentially invited the jury and the district court to engage in the type of “pure conjecture” that North Carolina courts have prohibited. See DiDonato, 358 S.E.2d at 493.
We nonetheless observe that the testimony of Turner‘s parents demonstrated their close relationships with Turner, as well as Turner‘s good character. We have no doubt that Turner had significant value to his parents, and that they are entitled to a substantial award for the loss of his services, care, and companionship. However, we cannot agree that the evidence, viewed in the light most favorable to Fontenot, met the required “reasonable level of certainty” to establish that such services, care, and companionship had a monetary value approaching $6.15 million. See id. In reaching a contrary conclusion, the district court abused its discretion. Accordingly, we hold that TI is entitled to a new trial on damages.16
For these reasons, we affirm the district court‘s judgment upholding the jury verdict imposing liability on TI for its negligence. We vacate the district court‘s judgment with respect to the remitted award of compensatory damages, and we remand the case to the district court for a new trial limited to the issue of damages.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
BARBARA MILANO KEENAN
UNITED STATES CIRCUIT JUDGE
TRAXLER, Chief Judge, dissenting:
Because I believe TI was entitled to judgment as a matter of law on the basis of contributory negligence, I respectfully dissent.1
We review the denial of a judgment as a matter of law de novo. See Konkel v. Bob Evans Farms, Inc., 165 F.3d 275, 279 (4th Cir.1999). We must grant judgment as a matter of law against a party on a claim when she “has been fully heard” on that claim and “a reasonable jury would not have a legally sufficient evidentiary basis to find” in her favor. See
In North Carolina, “[e]very person having the capacity to exercise ordinary care for his own safety against injury is required by law to do so, and if he fails to exercise such care, and such failure, concurring and cooperating with the actionable negligence of defendant, contributes to the injury complained of, he is guilty of contributory negligence.” Clark v. Roberts, 263 N.C. 336, 139 S.E.2d 593, 597 (1965). Thus, under North Carolina common law, no recovery may be had in tort for the plaintiff‘s injuries when his failure to exercise reasonable care is a proximate cause of his injuries. See Holderfield v. Rummage Bros. Trucking Co., 232 N.C. 623, 61 S.E.2d 904, 906 (1950).2
Here, after being fired for insubordination, Turner refused to leave the store, even when Blackert told him she was calling the police. When store manager Antwan Wesley arrived at the store, Turner began yelling and cursing at him and aggressively advancing on him like he wanted to fight. As Wesley retreated, Turner slung a display and threw an umbrella.
Dawson aimed his X26 at Dawson. Turner looked down, saw the laser dot on his chest, but continued to step toward Dawson with his fists clenched. As Turner got within 3-5 feet of Dawson, Dawson deployed his Taser and the probes struck Turner near the sternum. Even then, Turner refused to submit. Rather, he continued walking and picked up a metal bag rack and threw it. Attempting to protect himself and the store customers, Dawson continued to hold the trigger down as Turner continued to refuse Dawson‘s commands to get down. Turner eventually collapsed and died from ventricular fibrillation.
Several cases from the North Carolina Court of Appeals with facts analogous to ours demonstrate as a matter of North Carolina law that Turner was contributorily negligent in continuing his aggressive behavior even after the officer told him to calm down and even after he drew his Taser and pointed it at Turner. Most relevant is Braswell v. N.C. A & T State University, 5 N.C.App. 1, 168 S.E.2d 24, 30-31 (1969), wherein the court applied the doctrine of contributory negligence to reverse a damage award made by the North Carolina Industrial Commission. In that case, the plaintiff had joined a mob that was attempting to force gymnasium doors open at a public dance, and he was accidentally struck by a ricocheted bullet fired by a campus security officer. The North Carolina Court of Appeals concluded as a matter of law that the plaintiff was contributorily negligent and that his negligence was a proximate cause of his injuries:
It seems to us that it was reasonably foreseeable that the security officer would undertake to perform his duty to prevent an illegal breaking and entry of the building, and that someone in the crowd was likely to be injured in the process. It also seems that a reasonably prudent person, in the exercise of due care for his own safety, would not participate in mob action which was clearly intended to be in violation of the law and contrary to reasonable conduct. Every person is charged with the duty of exercising reasonable care for his own safety, and the joining in illegal mob action is not an exercise of reasonable care; in so doing plaintiff assumed the risk of whatever injury he might receive as a result. In addition, the illegal conduct of the mob of which the plaintiff was voluntarily a part was such as would reasonably be calculated to provoke the security officer into taking some action to disperse the mob.
We think the facts, as found by the Commission, give rise to one inference only, and that is that the plaintiff was contributоrily negligent in joining and rejoining the crowd. He knew they were acting in an unruly and unlawful manner and that the officer had warned them to stop trying to break in the doors. With this knowledge, he voluntarily became a member of the crowd on two occasions, and was rejoining the crowd a third time when he was shot.
Fontenot argues that any negligence by Turner was not the proximate cause of his injuries because the particular hazard that befell him—having his heart stopped by the X26—was unforeseeable to someone in his position. However, although foreseeability of injury is an essential element of proximate cause, “[i]t is not required that the injury in the precise form in which it occurred should have been foreseeable but only that, in the exercise of reasonable care, consequences of a generally injurious nature might have been expected.” McNair v. Boyette, 282 N.C. 230, 192 S.E.2d 457, 461 (1972) (emphasis added); see also Braswell, 168 S.E.2d at 31 (“[T]he joining in illegal mob action is not an exercise of reasonable care; in so doing plaintiff assumed the risk of whatever injury he might receive as a result.“). Here, Turner obviously knew Officer Dawson had pulled out his Taser, focused its laser sight on Turner‘s chest, and was prepared to shoot Turner with enough electrical current to cause his collapse if necessary, yet in the face of all this Turner continued to advance on the officer in a hostile manner. Certainly it was foreseeable, if not obvious, that Turner would be injured by the officer‘s response.
No manufacturer or seller shall be held liable in any product liability action if:
(1) the use of the product giving rise to the product liability action was contrary to any express and adequate instructions or warnings delivered with, appearing on, or attached to the product or on its original container or wrapping, if the user knew or with the exercise of reasonable and diligent care should have known of such instructions or warnings; provided, that in the case of prescription drugs or devices the adequacy of the warning by the manufacturer shall be determined by the prescribing information made available by the manufacturer to the health care practitioner; or
(2) the user discovered a defect or unreasonably dangerous condition of the product and was aware of the danger, and nevertheless proceeded unreasonably to make use of the product and was injured by or caused injury with that product; or
(3) The claimant failed to exercise reasonable care under the circumstances in his use of the product, and such failure was a proximate cause of the occurrence that caused injury or damage to the claimant.
See 1979 N.C. Sess. Laws Ch. 654 (emphasis added).4 Effective January 1, 1996, the
(3) The claimant failed to exercise reasonable care under the circumstances in histhe use of the product, and such failure was a proximate cause of the occurrence that caused the injury or damage to the claimantcomplained of.
1995 N.C. Sess. Laws Ch. 522.
Consistent with the General Assembly‘s intention in enacting the Act, the North Carolina Supreme Court has consistently held that the effect of
Drawing on the language of
In Jones, the plaintiffs worked for many years for a plant that manufactured a product insulated with asbestos. Exposed to asbestos on a daily basis, the plaintiffs eventually developed asbestosis and lung cancer and later filed products liability suits against the asbestos manufacturer. The district court consolidated the cases and granted partial summary judgment to the plaintiffs on the issue of whether they could be held contributorily negligent as a result of their long-term smoking. When the plaintiffs later prevailed on their claims at trial, the defendant appealed, arguing, as relevant here, that the district court erred in granting partial summary judgment on the contributory negligence issue.
We reversed the judgment. In so doing, we considered the argument that
Citing Jones with approval, the North Carolina Supreme Court reached a similar conclusion on similar facts in Nicholson II. In that case, the plaintiff, an electrical lineman, was working on a project extending an overhead power line. He was wearing a protective helmet and safety gloves, but his helmet blew off multiple times and he eventually decided to continue to work without retrieving it. When an energized line either touched or came close to touching his unprotected head, he was severely injured. In a products liability action against the manufacturer and distributor of the gloves, the trial court granted summary judgment against the plaintiff, concluding, as is relevant here, that recovery was barred as a matter of law under the doctrine of contributory negligence because of his cоntinuing to work after he lost his helmet. See id. at 243.
On appeal to the North Carolina Court of Appeals, plaintiff maintained that “contributory negligence does not apply unless plaintiff‘s use of the gloves was unreasonable under the circumstances, regardless of any alleged failure otherwise to employ safety devices and act in an appropriate manner.” Nicholson v. American Safety Utility Corp., 124 N.C.App. 59, 476 S.E.2d 672, 679 (1996) (“Nicholson I“). The Court of Appeals agreed based on its construction of
The North Carolina Supreme Court then granted discretionary review and unequivocally rejected the construction given the statute by the intermediate appellate court. See Nicholson II, 488 S.E.2d at 241. The North Carolina Supreme Court noted, as we did in Jones, that it had previously construed
Fontenot identifies certain language from the opinions in Jones and Nicholson II that she contends supports her position that only circumstances during the plaintiff‘s use of the product may constitute contributory negligence in products liability cases. See Jones, 69 F.3d at 722 (“the statute requires the focus to be on whether [plaintiffs] ‘failed to exercise reasonable care under the circumstances in [their] use of the product’ “) (emphasis added and omitted); Nicholson II, 488 S.E.2d at 244 (“[A]ll of the circumstances during the plaintiff‘s use of the product must be considered.” (emphasis added)). Again, however, context is key. In concluding that all of the plaintiff‘s conduct during his use could be considered, the Jones and Nicholson II courts were merely rejecting the proposition that only some of that conduct—namely, “plaintiff‘s conduct with respect to the product itself“—could be considered. Nicholson II, 488 S.E.2d at 244. This language plainly was not intended to describe the outer boundaries of what conduct can be considered contributory negligence.
In sum, our conclusion in Jones—that
No. 12-2302.
United States Court of Appeals, Fourth Circuit.
Argued: Sept. 18, 2013.
Decided: Nov. 22, 2013.