Franklin v. Blackmore

REAVLEY, Before JONES and CLEMENT, Judges. Circuit CLEMENT, Judge: Circuit In Appellants Lloyd this case Black- S. (“Blaekmore”) more Freight and New Star (“New Star”) Service contend the district in admitting testimony court erred aof “grief expert” and in upholding jury’s damage Appellee Vogler award to Frank (“Mr. Vogler”) for the future mental an- guish society and loss of due to the deaths addition, of his young wife and child. In Blaekmore and New maintain the Star dis- trict court in upholding erred award for conscious of the decedents. affirm in We part, part, order a remittitur and re- part. verse in I. FACTS AND PROCEEDINGS Blaekmore, employed by New Star as driver, truck driving a tractor-trailer rig south on Highway Huntington, 69 near (“Mrs. Becky Vogler Vogler”) Texas. three-year-old daughter Vogler Kallie (“Kallie”) were approaching Blackmore’s rig Highway driving north. Kallie was in a child-restraint seat in the back- seat of Mrs. Vogler’s Honda Accord. Blackmore’s tractor-trailer veered onto the shoulder, right rode the shoulder for some distance, and then came back onto the Darrin (argued), M. Law Office Walker highway. over-corrected, Blaekmore how- Walker, TX, Kingwood, of Darrin ever, and the truck crossed the center line Plaintiff-Appellee. jackknifed into Vogler’s Mrs. lane. At point events, some during these Mrs. Vo- Reagan Simpson (argued), King W. & gler’s car Houston, TX, edged left her lane of traffic and Spalding, Curtis William III, TX, Fenley, Fenley Bate, Lufkin, passenger-side both off pave- & wheels addition, for Defendants-Appellants. ment. speed the Honda’s rig first Institute of Health Professions. Because per to 39 miles hour.1 slowed she had not interviewed or Vogler’s of Mrs. car. The evaluated the the front struck Plaintiffs, collective the district court con- then rotated around so Honda general truck. Fi- fined her theories of by was hit passenger side grief recovery. roof tractor-trailer ran over the nally, the car front to back. Both Mrs. from finding After Blackmore and New Star were dead the time Vogler and Kallie liable for the deaths of Mrs. they were removed from their vehicle. Kallie, awarded Mr. dam- ages individually represen- both and as the husband, Vogler; Mrs. tative of the estates of his wife and child. Vogler’s surviving minor children $200,000 The awarded to Vo- Mrs. marriage, Shelby Conway and her first gler’s estate for her and mental an- (“Shelby Clayton”); and Clayton Conway death, $200,000 guish prior to her and Henry and Vogler’s parents, Mrs. De- and Kallie’s estate for her and mental Franklins”) (“the filed a bra Franklin anguish prior to her death. Mr. Blackmore and wrongful against death suit loss, “pecuniary received his Clayton Shelby and settled New Star. society, companionship loss of and and prior Blackmore and New Star with anguish of the loss of Mrs. [because trial, the and the Franklins settled after Vogler] past,” that was sustained in the appeal. Only Mr. verdict but before the $1,500,000 in and for his future claims, specifically, more his Vogler’s and of capacity, the same as well as his loss currently at issue. Black- damages, are earnings. future He was do not contest the more and New Star similarly compensated for his loss liability on jury’s finding appeal. companionship society and trial, testimony by At in addition past sustained in the because of himself, put Plaintiffs the collective death, $1,300,000 and for his future Kallie’s thanatology,2 in expert forth an referred daugh- of the loss of his suffering because “grief Blackmore and New Star as a punitive damages ter. No were awarded expert, Phyllis Dr. Silver- expert.” This jury. upheld The district court (“Dr. Silverman”), man has a bachelor’s Blackmore and New against awards degree psychology sociology, in and a mas- Star, Trial denying their Motions New work, in public ter’s in social and a .Ph.D. Remittitur, Judg- or for and for Partial is also licensed as social health. She ment as a Matter of Law. Blackmore twenty-six published pa- has worker. She timely appeal. New Star fifty-two “other” pers approximately journals, chap- writings peer-reviewed II. STANDARD OF REVIEW books, complete books. She ters admissibility question visiting “[T]he scholar and resident wom- ... un Brandéis, adjunct testimony is reviewable profes- expert at en’s studies der abuse-of-discretion standard.” College School for Social sor Smith 136, 143, Joiner, 522 Work, emer- Gen. Elec. Co. v. U.S. professor professor and a (1997). 512, 139 L.Ed.2d 508 Hospital 118 S.Ct. itus at the Massachusetts General U.S.), (orig. study effects of Highway point of the speed 1. 69 at the Also The limit per was 70 hour. of the collision miles approaching death and of the needs of the terminally Oxford En- ill and their families.” Thanatology is defined as scientific "[t]he (2d ed.1989). glish Dictionary death, phenomena. study its causes specifi has not ruled Although stituting this Court our views for those of the trial cally admissibility testimony of the judge. parties He has seen the grief experts, admissibility expert evidence; only heard the we have read generally governed by evidence papers. jury’s assessment of dam- standard enunciated Daubert v. Merrell ages is even weighted against ap- more Pharmaceuticals, Inc., 579, Dow 509 U.S. reconsideration, pellate especially when 2786, (1993), 113 S.Ct. 125 L.Ed.2d 469 ... judge the trial approved has it. permits testimony only which admission of In re Air Crash Disaster Near New Or- if it is both relevant and reliable. Id. at leans, 9, 1982, July La. on 767 F.2d 589. Even if the (5th Cir.1985). It is under this nar- . admitted, improperly “we next review the row review that the awards to Mr. doctrine, error under the harmless error Vogler must be evaluated. affirming judgment, unless the ruling On the issue of whether damages rights complain affected substantial all, should be this Court treads Servs., ing party.” Bocanegra v. Vicmar verdicts, lightly upon jury as the standard (5th Inc., Cir.2003). very of review is deferential.3 “Absent an Blackmore and New Star charac law, error of reviewing the court will sus terize damages the future awarded to Mr. tain damages the amount of excessive, entitling as Blackmore finder, the fact unless the amount is clear and New Star to either a new trial or ly or gross erroneous so or inadequate as jury’s remittitur. a findings When are not contrary to be to right reason.” Sockwell being directly, attacked but instead are (5th Cir.1994). 187, Phelps, v. 20 F.3d 192 challenged through a district court’s deci “Thus, proper ‘only reversal is if no rea grant remittitur, not to sion new trial or sonable could have arrived the the standard of ” review is one of abuse verdict.’ E.I. Stevenson v. DuPont De Davis, 164, Esposito discretion. v. 47 F.3d Co., (5th 400, Nemours and 327 F.3d 405 (5th Cir.1995). is no “[TJhere abuse Cir.2003) (internal omitted). citations denying discretion a motion for new trial evidence is reviewed in light the most fa a complete unless there is absence of evi prevailing party, vorable to the and “[o]n dence support to the verdict.” Id. issue, each ‘we will not disturb the give special We solicitude to findings of unless, verdict considering the evidence in distress, grief for and emotional light prevailing most favorable to [the large party], the facts point and inferences so [bjecause the assessment of damages overwhelmingly to non-prevailing par [the grief and emotional depen- ty] jurors distress is so that reasonable could not have dent on the facts and largely is so arrived at a verdict except fa [their] ” judgment, Hunter, matter chary 701, we are vor.’ sub- Streber v. 221 F.3d they Blackmore and New Star admit that more favorable standard of review. See 50(a) failed to judg- Thompson make Rule motion for Memphis, and Wallace Inc. v. law, they (5th ment as a matter of Corp., and that instead Falconwood 100 F.3d 50(b) Cir.1996) judg- (noting made Rule renewed although "[gjenerally motion for that party 50(a) ment as a matter of law at pre-verdict the close of all must make both a rule 50(b) evidence. post-verdict As Mr. and the collective motion and a rule motion review,” object Plaintiffs preserve right below did not to the Rule to appellate 50(b) 50(a) failing plaintiffs motion as to follow a Rule when "the did not raise the waiver motion, motion, they precluded 50(b) arguing opposing are from bar in the rule appeal, thereby securing may waiver on appeal”). not raise that bar on Cir.2000) (internal (5th expert testimony. Bocanegra citations omit- Services, ted). Inc., instance, Vicmar Court concluded that the district court im- III. DISCUSSION properly expert excluded irrelevant testimony toxicologist of a the ef- about Expert A. The Grief marijuana cognitive fects of functions suggest that progeny and its Daubert (5th “high.” after the weigh finding in favor of factors several Cir.2003). Bocanegra The district court in testimony sufficiently reliable. expert be testimony had excluded the because the 593-94, 2786. The Su Id. at 113 S.Ct. toxicology expert any could not point in Kumho Tire Co. v. Carmi preme Court causal connection between the defendant’s suggested further that the Daubert chael marijuana use and the accident. Id. On one, is a flexible standard however, appeal, explained this Court “make certain that an district court should expert’s testimony after extensive testimony upon basing whether expert, demonstrating about studies the effect of personal experi professional studies or functions, marijuana cognitive use on ence, employs in the courtroom the same [bjecause expert’s] knowledge of [the that characterizes rigor of intellectual level training toxicology, in the field of in the relevant practice helpful have his would been Kumho, 137, 152, 119 526 U.S. field.” fact-finder, it would (1999). not because 1167, 143L.Ed.2d 238 S.Ct. explained have the connection between use the Blackmore New Star While accident, marijuana and the but argument against “reliable” their word recent explained because it the effect of testimo the admission of Dr. Silverman’s marijuana an ingestion of individual’s substantively allege that the testi ny, they functions, cognitive including perception it un mony was not relevant because was time, and reaction both critical factors the focus connected to the case. Because any accident. arguments and New Star’s is of Blackmore added). testimony was whether Dr. Silverman’s (emphasis It is there- Id. it to the case such that would connected that Dr. unnecessary given fore these facts determining a fact at assist the testimony explain the connec- Silverman’s issue, properly is the relevance of the focus Vogler’s grieving tion between which, testimony, according to Dau- accident. bert, the reason question is a of “whether Dr. insist that Blackmore and New Star methodology properly ap can be ing or have “as- testimony would not Silverman’s facts in plied to the issue.” U.S. jury, see Federal Rule Evi- sisted” 592-93, 113 2786.4 S.Ct. 702, grief universally is a dence because Court, within the specifically experienced emotion is well

This while not jurors understanding of grief expert, of a common sense addressing the relevance testimony.5 support no requires expert the intersection of relevance opined has for determin- reliability properly There is no more certain test was not As issue Star, experts may be than the by and New we do not when used raised Blackmore testimony grief inquiry of a ex- the un- address whether the common sense whether is, pert generally speaking, qualified reliable. layman would be to deter- trained degree the intelligently and to the best mine enlightenment particular Advisory issue without 5. The Note to Rule 702 states: contention, Blackmore gled, of this and New flattened remains of point to several federal courts that Star highly unlikely car. It is that Dr. Silver- exclusion, in upheld varying have cir- testimony man’s aided in the resolu- cumstances, proffered grief expert testi- tion of the case or its awards to Mr. mony.6 testimony, The admission of such Vogler. Star, might

claim Blackmore and un- New duly jurors influence the with its scientific B. The Award to Mr. Vogler might even appearance serve as awards, evaluating jury When surrogate testimony of a plaintiff. Court reviews such awards in the context It dangers all of the undeniable injuries of awards in cases with similar alluded to Blackmore and New Star jurisdiction. the relevant Salinas v. relatively lurk in grief untested area of O’Neill, (5th Cir.2002). 286 F.3d expert testimony. But Blackmore and This Circuit has limited searches for feder argue categorically New Star do not al discrimination law awards to the “rele against testimony, the admission of such jurisdiction” vant of the Fifth Circuit. Id. they nor challenge do the credentials of jurisdiction The relevant wrongful in a Thus, Dr. Silverman. acknowledge death case providing is the state the sub that the decision to admit her testimony stantive law the claim. Therefore Tex lay in balancing the trial court’s of several wrongful as death cases and Fifth Circuit factors —whether the competent was cases applying wrongful Texas death law to assess the evidence intelligently without jurisdiction. comprise the relevant testimony, whether the evidence employs This Circuit the “maxi probative had weight, and whether the risk mum recovery” rule granting when prejudice greater. Even the cases end, remittitur. To this cited Blackmore are permit- and New Star reduced to the maximum grief expert ted the exclusion of amount a rea testimony exercise the trial sonable could have court’s discre- awarded. Giles Co., tion. Dr. Because Silverman’s Elec. Gen. relevant, (5th Cir.2001). necessary if not jury, to the In order to calculate the district court did not abuse its discre- amount, this Court only looks not admitting tion in the evidence. awards, may to actual but apply also multiplier fifty percent past similar Further, even we were to find if awards, long so multiplier as no was that the district court abused its discretion in calculating past used those awards. admitting in Dr. testimony, Silverman’s Salinas, 831, 286 F.3d at 831 n. 6. the admission of that harm was less. The facts of tragic: this case are (1) Jury damage awards for the death dead, mother and child are leaving griev spouse. ing father to care for his wife’s children Few, prior marriage any, from a if attempting by while of the awards cited care for presented by himself. Evidence either side past differentiate between the collective Plaintiffs at trial suffering included future of companionship. loss pictures a happy family man- Because Blackmore and New Star do not Pavia, having specialized from those Hospital understand- 6. Navarro de Cosme v. (1st Cir.1991); subject F.2d 931-32 dispute. El-Meswari involved in the Co., Washington Light Gas Advisory Committee Note.

Fed.R.Evid. 702, (4th 1986). Cir. Kallie, Vogler for Mr. Mrs. and the award for such by the object to the awards companion- justification by jury. and loss of not made Vogler’s in which future only in the cases ship past, accepted therefore could have are designated damages explicitly are Vogler’s expert’s Mr. valuation of his wife’s comparison. proper bases earnings and future future household ser- $900,000. high vices to be as as Added to jurisdic Only one case the relevant the maximum amount for fu- recoverable Lines, Inc., 709 tion, v. Delta Air Douglass suffering, ture even under the (W.D.Tex.1989), aff'd, part, F.Supp. Star, by Blackmore and New cases cited (5th Cir.1990) part, 897 F.2d 1336 rev’d reasonably could have awarded are herein has divided Vogler for the “pecuniary Mr. million8 $1.5 Douglass, woman contested.7 loss, companionship society, loss of $400,000 for her future mental anguish that and mental reasonable companionship future loss of anguish and in the probability will be sustained future.” to the loss of her husband. due ruling We therefore affirm the of the dis- Douglass, the maximum Based on upholding trict court the award to Mr. Vogler, using the 50% recovery for Mr. for the loss of wife. Vogler his $600,000. seem to be multiplier, would distinguished Blackmore and New Star future to Mr. for his The award higher factually awards as dissimilar to the however, pecuniary loss damages, included case at no remittitur is war- bar. Because future, as sustained in the that would be recovery ranted the maximum rule under companionship loss of well as by using alleged cases Blackmore New trial, anguish. Vogler’s At economic similar, sufficiently to be the issue of Star present testified that the value higher need not be addressed. awards earning capacity as a future $455,000 and dental assistant was between (2) Jury damage awards death $700,000, $200,000 up an addition of with a child. Al for the value of household services. cases cited either None Blackmore and New Star charac though Blackmore and New Star or Mr. future loss as the pecuniary terize the wholly in a similar address awards made difference between award result, physical injury. court parties do absent As a 7. Other cases cited which past not differentiate between and future suf appeal eliminated an additional Lines, Inc., fering include: Larsen v. Delta Air past award and future mental (S.D.Tex.1988) ($1 F.Supp. 714 million interpretations of the wife. Under current companionship and mental an for loss of law, wrongful death of re- Texas amount future, guish, past a loss of and for woman's $800,000); covery be Monsanto Co. would Seahorse, Inc., husband); Hope v. F.Supp. 651 Johnson, (Tex.App.1984) 675 S.W.2d 305 ($225,000 (S.D.Tex.1986) 976 for loss of com ($500,000 compan- and for loss of consortium panionship anguish, past and mental and fu future, ionship, past and for a woman's loss of ture, a loss of husband and for woman’s case, husband. At the time of this Texas did $350,000 anguish for future mental and fu permit recovery anguish a not for mental in companionship ture for minor child’s loss wrongful spouse death suit for loss of a absent Zondler, Florida, parent); Inc. v. loss of Air physical injury). ($500,000 (Tex.App.1984) for 683 S.W.2d 769 past companionship, and loss of consortium $600,000 (future anguish) mental + future, a woman's loss of husband. It and $700,000 (future earning capacity) + that, time, important to note at the Texas is $200,000 (future services) value of household recovery permit anguish in did not for mental = $1,500,000. wrongful spouse death suit for loss of a mum recovery implicated. situation —where a man has lost both his rule is not As Further, only and child. one of in in wife his we noted another case which remitti- “[bjecause distinguish the cases seems between tur requested, facts companionship past different, and future loss each case are prior damages In the of Haskett v. anguish. mental case always awards are not controlling; a de Butts, (Tex.App.2002), 83 S.W.3d parture prior from awards is ‘if merited compensated woman for her future unique present facts are that are not re ” pain anguish and mental the loss of her controlling flected within the caselaw.’ $100,000. stillborn child with an award of States, Lebron v. United Although specifically case deals with this (5th Cir.2002). Nothing recommends re- anguish, future we find case, mittitur and we will not sub injury pur- that it is not a “similar” judgment stitute our jury. for that of the poses comparison present with the case. judgment As the the district court Texas law deals with the issue of stillborn upholding contrary the award is not anguish separate fetuses and mental reason, affirm. we child, since, from the death of under law, C. The Award to the Estate of Texas “a fetus is a of the moth- Mrs. Vo- gler body.” er’s 83 S.W.3d at 218. Because of fetus, this definition of the cannot Vogler, Mr. as representative of the es- damage include its award amounts for Vogler, tate of Mrs. was awarded society, companionship, loss of or affection Vogler’s for Mrs. conscious and suf- due to the loss of the fetus. Id. at 220. fering and anguish prior to her Haskett is therefore not an appropriate death. Blackmore argue and New Star comparison for the case at bar.9 evidentiary that this award lacks support, or, alternative, Complicating our review of the that award this award is Vogler for Kallie’s death is that no excessive. cases cited party separate past either Blackmore and New Star first contend and future loss of companionship men- that the presented collective Plaintiffs in- anguish.10 tal All that seems evident from sufficient evidence at trial of the relevant caselaw is awards for the prior and Kallie to their vary widely. loss of child They point deaths. out that Our put review the caselaw reveals that forth the collective Plaintiffs esti- that, most, there factually is no similar case in the mated the accident took jurisdiction; therefore, relevant seconds, the maxi- place period over of mere future, 9. We companionship, past note that even Blackmore and New Star for the loss suggest plus fifty do not therapy, of two sons. Father underwent percent multiplier appropriate compensa- “nonfunctional”); mother described as tion for Mr. loss. Sears, Co., Wellborn v. Roebuck & F.2d (5th Cir.1992) ($1,225,000 for mental 10. Mr. cites v. Brownsville Sanchez companionship, past and loss of Ctr., Sports (Tex.App.2001) 51 S.W.3d 643 future, child). single to a mother for loss of a ($7.5 parent damages, million to each for all extreme, opposite At the Blackmore and New possibly including punitive damages, arising Ramirez, Star cite Russell v. 949 S.W.2d 480 from the loss of a child. No mention of (Tex.App.1997), in which a woman was anguish companionship spe or loss of companionship for loss of Lastra, cifically); Corp. Gen. Chem. v. De La future, anguish, past for the (Tex.1993) ($5 million 852 S.W.2d 916 to loss of her son. parent anguish each for mental and loss of

159 [Ajfter result, considering [plausible each that, any award for conscious sce- as a nario], the court concludes there was purely spec suffering is based pain sufficient circumstantial evidence for the argument, Black- ulation. To buttress jury reasonably to infer occupants that cases decided more and New Star offer pick-up truck became aware of under Texas law which impending crash with the defen- suffering upheld, conscious were truck and dants’ oversized load immedi- upon testimony. available based ately prior to the collision. Under each Stutzman, v. 36 S.W.3d Torrington See Co. scenario, the decedents’ vehicle entered aff'd, part, rev’d in (Tex.App.1999), 511 prior into a skid to the collision with the (Tex.2000) (upholding part, 46 S.W.3d 829 eighteen-wheel rig. type This is the passenger another tes jury verdict when likely event which more than not would helicopter as a anguish tified to his mental despite command attention routine dis- Saenz, crashed); v. 829 Corp. Gen. Motors tractions, compel persons to assess rev’d other (Tex.App.1991), 230 S.W.2d they peril. whether were imminent If (Tex.1993) (up grounds, 873 S.W.2d jury that decedents became found jury verdict for conscious holding peril, jury aware could also infer impending crash where they under the circumstances that steering”). “panic caused they facing sensed were certain cata- strophic injury. by Black- find the cases cited We added). (emphasis Id. Because the district persuasive. more and New Star somewhat permissible jury court found it to case, however, nearly that There is the circum- make two inferences about identical, per more factually and therefore surrounding the in order to stances crash Rodriguez In suasive. Great Western that arrive the conclusion the decedents (E.D.Tex. Inc., Leasing, F.Supp. anguish prior had suffered some mental 1995), action pursued an estate a survival deaths, legally their there was sufficient truck and an pick-up after the collision of pre-death suffering, evidence of emotional eighteen-wheeler resulted in the deaths precluding grant judgment of a not- F.Supp. passengers. the three truck withstanding Id. the verdict. 99. After the awarded substantial Similarly, pre- the collective Plaintiffs decedents’ mental damages for the circum- jury, sented evidence to the albeit death, the defendants moved for a prior evidence, that Mrs. was stantial verdict, notwithstanding the ar judgment pos- crash and its impending aware of the Star, that guing, like Blackmore and New evidence consequences. sible There was support “to there was no evidence driving was on the shoul- consciously finding that decedents were speed road and had slowed her der of the an collision or other impending aware of hour, per which could thirty-nine miles at 100. anguish.” wise suffered mental Id. jury to infer that she was tak- permit the acknowledged district court that there impact. It prior evasive action anguish; no direct evidence of mental argued shifting that the of lanes could be result, issue was whether the truck, oncoming entering like the presented with evidence sufficient to type of event Rodriguez, a skid in is “the permit it to use discretion to award dam likely than not would com- which more evaluating plausibility of al ages. routine distractions despite mand attention whether compel persons ternate scenarios that would have resulted to assess crash, peril.” F.Supp. in imminent were in the the court observed It even relevant for purposes (Tex.App.1982). Applying is not the fif- awards, the of the mere ty percent multiplier of determination to these the presence pre-death anguish mental that maximum amount that could be awarded lasted, most, the awareness at three and a to the Volger estate of Mrs. for her con- Rodriguez, jury half seconds. In pre-death suffering was scious mental is $30,000. permitted to find decedents suffered men- We therefore order a remittitur anguish prior though tal to death even the such that the total award to Mrs. “greater weight suggests $30,000. of the evidence estate is seconds, only that there were one or two less, skidding

or before the crash.” 882 D. The Award to the Estate of Kallie added). F.Supp. (emphasis While Vogler, representative of the es- the suffering may shortness of the affect Kallie, tate awarded award, computation damage the of the see pain her conscious anguish pri- infra, it necessarily does not affect the or to her death. Blackmore and New Star jury discretion of the in finding pres- the argue that this award evidentiary lacks anguish prior ence mental to death. We or, support, alternative, in the that therefore rule that there was sufficient award is excessive. presented evidence to that it Vogler experi- could have found that Mrs. While the movements of Mrs. Vo enced pain suffering prior conscious gler’s car prior impact support could her death. jury finding that she was aware crash, Although presented impending absolutely there is no evidence, otherwise, with sufficient circumstantial evidence to circumstantial or Vogler Kallie, conclude that felt suggest three-year-old conscious that secured death, pain suffering prior none her child restraint directly seat behind factually-similar cases in this Vogler, any Circuit Mrs. had hint of impend supports the extensive disaster. Mr. contends that jury. Rodriguez, “certainly the case that is perceived Kallie her mother’s case, factually most similar to present panic, frightened and was herself.” This the district court pub upon observed inference built supposition “[n]o precedent supports finding lished Vogler’s panic simply of Mrs. too attenuat $100,000 for a jurors few seconds of mental an ed for reasonable to have arrived guish preceding instantaneous death under verdict favor of Kallie’s estate. Fur ther, Texas law.” F.Supp. permitted because we finding (E.D.Tex.1995). Because nothing Rodriguez sug in favor of suffering the conscious gested anguish- extensive mental most of Mrs. in large part based on the —at seconds, eight there were less than circumstantial evidence of her awareness only than likely collision, more one or two impending seconds we find Mr. of pre-impact mental court Vogler’s argument that Kallie suffered ad —the concluded the maximum award was ditional anguish conscious mental because $20,000per decedent. Id. at 101. her portion Similar of the car was crushed millise ly, Junell, in Hurst Aviation v. the court impacted conds after the driver’s seat was concluded was not unavailing. excessive We must therefore conclude pre-death suffered that the district court in upholding erred pilot plane as he lost control of his award for Kallie’s conscious ground. suffering prior crashed into the 642 S.W.2d to her death. ger and with the trailer at compartment, IV. CONCLUSION angle, the mass traveled 90 feet across reasons, foregoing judgment For the muddy ground stop to hit and at a tree. court is AFFIRMED with of the district Becky’s anguish may have existed admission of Dr. respect to the Silverman’s moments, only horrify- but those were award for and ing pain mercifully moments. Her pain suffering future and be- sudden, but felt. daugh- wife and cause of the deaths of his court judgment ter. The of the district is Kallie was not an infant. She sat respect to its affir- also AFFIRMED with confined in the and back seat was most jury’s finding of conscious mance likely point danger. aware some of her of Mrs. pain part and on the It would be reasonable to believe that this of the Vogler. We order REMITTITUR young girl experienced fright terrible and damages amount awarded for Mrs. Vo- pain My colleagues some before death. pain suffering for ei- gler’s conscious and can damages hold there be no $30,000 a total or a new trial ther award Kallie’s estate because there is no proof Finally, for these alone. any pain she suffered or mental an- of the court is RE- judgment district guish. testify While no witness could respect with to the affirmance of VERSED terror, just or or screams how she was to the estate of Kallie for award crushed, her position age and as she faced suffering. her conscious and supports contrary and felt this horror finding. REAVLEY, Judge, dissenting: Circuit My colleagues compute the mother’s agree judgment except I with damages, as do that of the husband rejection of the awards for the suffer- father, by what has come to be the Those ing of the mother child. recovery maximum circuit. exercise my awards do not shock con- Departing from the rule deference to unjust science or seem to me to be or verdicts, the court lists the awards contrary Because that is the to reason. juries judges, different for different review, legal my limit to I would not inter- circumstances, parties under different add- non-peeuniary The decision about fere. percentage for the sake of reason- necessarily subjective. damage awards is ableness, thereby fixes the maximum from the Amendment and Apart Seventh recovery appeal. allowable the ease I respect, personally prefer with would gently has described as practice This been a full and that the decision be made after quagmire.1 By using a Texas court eight jurors rather than fair trial these opin- and a court appeals decision district judicial by my colleagues. fine ion, my colleagues decide that Becky Vogler eighteen-wheeler saw the the maximum allowed for the and then head into pavement veer off the anguish experienced by Becky Vogler. path. She slowed and turned across I dissent. But her Honda paved shoulder. right struck the front wheel jammed truck

Freightliner and was then top

beneath the cab. With the cab on engine passen-

the Honda’s of its (2003). Madigan, Damage Excessive Review in The 34 Tex. Tech L.R. Quagmire Inconsistency. Fifth Circuit: A

Case Details

Case Name: Franklin v. Blackmore

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Dec 22, 2003

Citation: 352 F.3d 150

Docket Number: 02-41527

Court Abbreviation: 5th Cir.