Case Information
*2 Before RILEY, Chief Judge, GRUENDER, Circuit Judge, and GRITZNER, [1] [2] District Judge.
____________
RILEY, Chief Judge.
These appeals are driven, in large part, by the standards of review. About five years ago Michael Bavlsik was driving his 2003 GMC Savana van when he collided with a boat being towed by another vehicle. Bavlsik was wearing his seatbelt, but that did not prevent him from hitting his head on the roof when the van rolled over. As a result, Bavlsik sustained a cervical-spinal cord injury and is now a quadriplegic. Bavlsik and his wife, Kathleen Skelly, sued General Motors, the company that designed and manufactured the van, for: (1) strict liability, asserting the seatbelt system lacked three specific safety features; (2) negligent design, based on GM’s failure to implement these safety features or conduct adequate testing on the van; and (3) failure to warn.
After an eleven-day trial, the jury found GM negligent for failing to test the van and such negligence caused Bavlsik’s injuries. The jury rejected all other claims and theories. Bavlsik was set to recover $1 million (all for past damages), until the trial court granted GM’s renewed motion for judgment as a matter of law (JML) and set *3 aside the verdict. On Bavlsik’s and Skelly’s motion, the trial court also conditionally granted a new trial solely as to damages. Both decisions are before us now. Bavlsik and Skelly contend they presented sufficient evidence to support the verdict, therefore GM was not entitled to JML. GM disagrees, and argues that if a new trial is necessary, then the parties should also retry the liability issue. We reverse the grant of JML, and affirm the grant of a new trial on damages only. See 28 U.S.C. § 1291 (appellate jurisdiction).
I. BACKGROUND
A. The Crash
On July 7, 2012, Bavlsik was driving two of his sons and eight others home to St. Louis after spending a week at Boy Scout camp in northern Minnesota when he hit a boat and trailer being towed by a pickup truck. The initial collision did not cause any significant harm, but then Bavlsik’s vehicle—a twelve-passenger 2003 GMC Savana van he had purchased nine years earlier—swerved and completed a three-quarters roll at a relatively low speed. Bavlsik was wearing his seatbelt, but still slid far enough out of his seat to hit the roof of the van with enough force to dislocate his neck and sever his spinal cord. No one else was seriously hurt.
Today, Bavlsik is a quadriplegic. He has “no motor movement below [his] chest,” however he was able to regain partial function of his arms after a nerve transplant and considerable rehabilitation work. Bavlsik’s limitations have had predictable effects on his life. Professionally, Bavlsik was able to resume his work as a doctor just a few months after the accident. Needless to say Bavlsik’s medical practice has changed—he “see[s] less patients in the office” due to his problems getting around, he has “lost a lot of patients,” and he has to work harder to accomplish routine tasks. Personally, Bavlsik misses the way life was when he could hike, bike, swim, and maintain an active lifestyle with his family. Bavlsik also worries about what the future holds, both for himself and his family. According to Skelly, she shares many of these feelings and concerns. And financially, not only *4 have Bavlsik’s professional prospects been curtailed, but he will also need to pay for some form of care for the rest of his life.
B. The Case
Bavlsik and Skelly filed a products-liability suit against GM in the Eastern District of Missouri less than one year after the accident. See 28 U.S.C. § 1332(a)(1) (diversity jurisdiction). The complaint included claims for strict liability, negligent design, and failure to warn. Bavlsik sought past and future damages for loss of income, pain and suffering, medical expenses, and punitive damages; Skelly sought additional damages for loss of consortium. Both sides consented to a magistrate judge presiding over the action. See id. § 636(c)(1) (magistrate jurisdiction). The case culminated in a multi-week jury trial in September 2015. The foundation of the plaintiffs’ case-in-chief was crafted around four key facts: first, there was no pretensioner, a device that activates in the event of a crash and removes slack from the seatbelt; second, the van did not employ an all-belts-to-seat design, which (as the name implies) consists of attaching the seatbelt to the seat rather than the body of the vehicle; third, the seatbelt did not use a sliding-cinching latch plate, which limits how freely the latch moves on the webbing of the belt; fourth, the van’s seatbelt system had not been tested to see how it would perform during a rollover accident.
There was no dispute about whether these four facts were true. Rather the case hinged on the significance of these facts. Bavlsik’s and Skelly’s expert, Larry Sicher, testified that the lack of the three features he identified rendered the van’s seatbelt system defective, testing would have revealed as much, and implementing any of these design alternatives would have prevented Bavlsik’s injuries. Sicher’s testimony was the primary way the plaintiffs tried to satisfy their burden for the factual questions facing the jury. On the strict liability claim, did the lack of the three proposed safety features mean the van was “in a defective condition unreasonably *5 dangerous when put to a reasonably anticipated use?” On the negligence claim, did the absence of any of these features and the lack of testing mean GM breached a duty by designing the van as it did? And for both claims, there was the issue of causation—would these features or some type of testing have prevented Bavlsik’s injuries?
When the plaintiffs rested their case on day six of trial, GM moved for JML. See Fed. R. Civ. P. 50(a). According to GM, there was insufficient proof “that any alternative design . . . would have made any difference,” and as for testing it was unclear “what the test should have been” or “in what way the information gathered from such a test should have been used.” Bavlsik and Skelly countered, citing their expert’s testimony about the effect the proposed features have on keeping passengers safely in their seats during a rollover. Bavlsik and Skelly also highlighted testimony about the “importance of testing” and posited that had there been adequate testing, “maybe [GM] could have considered some alternative—some of the many alternative designs that were offered into evidence in this case.” The trial court orally denied JML, so GM proceeded with its case-in-chief. At the close of all evidence, GM renewed its motion for JML “for the same reasons previously stated,” plus its supposed “direct evidence that . . . none of the alternatives . . . are actually effective and that there is nothing feasible that could have been done that would have prevented the injury.” Again, the trial court orally denied the motion.
The trial court submitted the plaintiffs’ claims on a general verdict form with special interrogatories that listed all of their theories within each claim (including lack of testing for negligent design). The jury returned a verdict after over four hours of deliberation, finding GM was negligent for not testing the van’s seatbelt system, and that negligence directly caused Bavlsik’s injuries. The jury found GM was not *6 strictly liable or negligent for failing to implement any of the specific safety features Bavlsik and Skelly had proposed. With the verdict, Bavlsik was to recover $1 million—all for past damages, none for future damages—and Skelly was to recover nothing. GM did not object to the jury instructions, the verdict form, or the verdict itself.
Both sides filed post-trial motions. Bavlsik and Skelly moved for a new trial only on the damages issue. See Fed. R. Civ. P. 59(a). GM renewed its motion for JML, see Fed. R. Civ. P. 50(b), and alternatively moved for a new trial only on the failure-to-test portion of the negligent-design claim, see Fed. R. Civ. P. 59(a). This time the trial court granted GM’s request for JML, reasoning “[t]he jury’s finding of no defect rendered the other finding of negligent failure to adequately test a legally insufficient basis for liability.” From this, Bavlsik and Skelly appeal. In addition, the trial court conditionally granted Bavlsik and Skelly a new trial on damages only, because the jury’s award was “shockingly inadequate.” See Fed. R. Civ. P. 50(c)(1). From this, GM conditionally cross-appeals.
II. DISCUSSION
A. Judgment as a Matter of Law
We must first decide whether the district court was right to grant GM’s
renewed motion for JML, which is a question we review de novo. See Stults v. Am.
Pop Corn Co.,
“[T]he [trial] court must (1) consider the evidence in the light most favorable to the prevailing party, (2) assume that all conflicts in the evidence were resolved in favor of the prevailing party, (3) assume as proved all facts that the prevailing party’s evidence tended to prove, and (4) give the prevailing party the benefit of all favorable inferences that may reasonably be drawn from the facts proved. That done, the court must then deny the motion if reasonable persons could differ as to the conclusions to be drawn from the evidence.”
Ryther v. KARE 11,
The jury found GM liable for “not adequately test[ing]” the van. This theory of liability was presented to the jury as a subpart of the broader negligent-design claim, so Bavlsik and Skelly had the burden of establishing the traditional negligence elements: duty, breach, causation, and damages. See Stanley v. Cottrell, Inc., 784 F.3d 454, 463 (8th Cir. 2015) (“To prove a negligent design claim under Missouri law, a plaintiff must show that the defendant breached its duty of care in the design *8 of a product and that this breach caused the injury.”). We assess these elements in turn.
GM makes no meaningful argument it did not have a duty to exercise
reasonable care in designing the van. Both Missouri appellate courts and our court
have recognized companies have a duty to exercise due care when they design and
manufacture a potentially dangerous product, which includes taking reasonable steps
to reduce the likelihood of such injury. See, e.g., Johnson v. Auto Handling Corp.,
No. SC 95777, ___ S.W.3d ___, ___,
Such testing did not happen here. In a deposition played to the jury, GM’s corporate representative admitted the company conducted no rollover testing to assess the seatbelt system’s performance before bringing the van to market in early 2003. Without testing, GM could not know whether the van provided adequate protection to occupants during a rollover, or whether any reasonable alternatives would have afforded additional protection. To be sure, there was evidence GM conducted compliance testing and met certain required safety standards. Yet as the jury was instructed, proof of such compliance “is relevant to, but not determinative of, whether the manufacturer exercised ordinary care in the design of its motor vehicles.” The jury was still free to accept Sicher’s testimony and find GM breached its duty by not conducting any sort of rollover testing before selling the van.
*10
We proceed to the more hotly contested issue at trial and on
appeal—
causation
: whether GM’s negligence “directly caused” the harm, meaning
Bavlsik would not have been injured “‘but for’” the van’s negligent design and GM’s
failure to test. Poage v. Crane Co., No. ED 103953, ___ S.W.3d ___, ___, 2017 WL
1632580, at *3-4 (Mo. Ct. App. May 2, 2017) (quoting Callahan v. Cardinal Glennon
Hosp.,
The heart of the plaintiffs’ causation evidence came from Sicher, who unequivocally opined that testing would have shown the van was not safe during a rollover, and “that there were designs available . . . that would have prevented Dr. Bavlsik’s injuries.” Sicher, a mechanical engineering expert with over twenty years of experience, explained the many tests he relied upon to reach this critical opinion. First came the seminal “Malibu II” report in 1990, which revealed significant neck injuries were likely during a rollover, even if the occupant was wearing a seatbelt. Then there were a number of tests over the next fifteen-plus years that showed, according to Sicher, how various design alternatives can improve seatbelt *11 effectiveness and reduce rollover injuries. Last came research GM conducted on the Savana model in 2007 and 2014, which Sicher said is proof the Savana’s seatbelt system “d[id] not provide a reasonable level of protection in a rollover.” Taken together, Sicher’s testimony and the peer-reviewed literature he relied upon support a reasonable inference that pre-2003 testing would have revealed the Savana seatbelt system was inadequate and could have been improved by adding feasible safety features.
Sicher also demonstrated a sufficient understanding of the relevant case- specific circumstances. At 6’1” and about 260 pounds, Bavlsik was not a small man. Bavlsik had about four inches of clearance between his head and the roof when he was seated in a “normal driving position” like he was when the collision occurred. Upon impact, Bavlsik’s van began a counterclockwise yaw and completed a three- quarters roll at around 11 to 15 miles per hour, beginning on the passenger’s side and stopping on the driver’s side. Evidence suggested the van was flipped exactly 180 degrees when Bavlsik sustained the injury. According to Sicher, he accounted for all these factors in reaching his ultimate conclusion that his proposed design changes would have prevented Bavlsik’s injuries.
For its part, GM sought to downplay its failure to test by casting doubt on whether test results would have shown any of Sicher’s proposed designs to be effective. GM’s counsel cross-examined Sicher at length about supposed flaws in his methodology and whether the available testing actually supported his conclusions. GM then called two of its own engineering experts, who rebutted Sicher’s opinions and opined there were no feasible design changes that would have prevented Bavlsik’s injuries. GM’s argument seemed to be that testing would have done nothing more than show there was a problem with no solution.
The jury heard considerable expert testimony about whether testing would have
revealed design alternatives capable of protecting Bavlsik during the rollover. Sicher
*12
“testified extensively” about his opinion on the matter and was “subjected to lengthy
and detailed cross-examination.” Adams v. Toyota Motor Corp., Nos. 15-2507,
-2516, -2635 to -2638, ___ F.3d ___, ___,
We end our JML analysis with damages, the final element and the one that requires little analysis in this case. For Bavlsik, there was an abundance of evidence about the harm he suffered physically, emotionally, professionally, and financially. For Skelly, there was evidence she plainly sustained loss-of-consortium damages. (We discuss the extent of such damages in more detail below.) In sum, there was legally sufficient evidence for a reasonable jury to find GM liable for negligent design, specifically for failing to conduct adequate testing. JML was improper.
B. New Trial
Given our decision above, we must now decide whether the trial court was wrong conditionally to “grant a new trial only on plaintiff Bavlsik’s future damages and on plaintiff Skelly’s damages, past and future.” See Fed. R. Civ. P. 59 (new trial); see also Fed. R. Civ. P. 50(c)(1) (conditional new-trial rulings). GM contends *13 the trial court abused its discretion by limiting the potential new trial like this “because the entire record demonstrates the compromise character of the verdict.” GM says the parties should retry the failure-to-test theory in its entirety, including the question of liability. Although GM makes a strong case, we are unable to say the trial court abused its considerable discretion and committed reversible error.
A trial court “may, on motion, grant a new trial on all or some of the issues,”
provided there is a good reason to do so. Fed. R. Civ. P. 59(a)(1). It is generally
permissible for a trial court to grant a new trial on damages only. See Haug v.
Grimm,
The trial court did not abuse its discretion. As the trial court put it, the plaintiffs proved Bavlsik sustained “a permanent injury that would require medical care of some sort for the rest of his life.” Such care does not come cheap—Bavlsik’s and Skelly’s expert on the issue predicted Bavlsik would incur $7 million in life-care *14 costs if he lived to age 79. This is in addition to whatever Bavlsik lost in earning potential, which another expert said will likely range between $296,000 (if Bavlsik worked until age 67) and $5.8 million (if Bavlsik quit immediately). As for Skelly, the evidence was clear regarding the impact her husband’s injury had and will continue to have on her. Though GM questioned the size of the plaintiffs’ claims, it did not suggest the jury should award $0 for future damages or loss of consortium. The parties fought about the extent of damages, not the existence of them.
Rather than try to justify the award, GM posits the low damages figure is one
of several signs the verdict represents an improper compromise. While it is true a
retrial on only damages is sometimes proper, it is inappropriate “where there is good
reason to believe that the inadequacy of the damages awarded was induced by
unsatisfactory proof of liability and was a compromise.” Haug,
“A compromise verdict results when the jury, unable to agree on the issue of
liability, compromises that disagreement by awarding a party inadequate damages.”
Boesing v. Spiess,
*15
The trial court explicitly rejected any suggestion of a compromise verdict,
perceiving “no question regarding the jury’s limited finding of liability.” We note
two overlapping forms of deference are at play in our review of this conclusion—we
defer first to the jury, as we start with the assumption jurors fulfilled their obligation
to decide the case correctly; and we defer second to the trial court, which “has a far
better sense of what the jury likely was thinking and also whether there is any
injustice in allowing the verdict to stand.” Nichols v. Cadle Co.,
First, as discussed above, both sides agree the damages award is seriously
inadequate—although they disagree on the degree of the inadequacy. Given that
reduced damages are part of the very definition of a compromise verdict, this factor
exists in nearly every case where a court finds an improper compromise. See, e.g.,
Mekdeci ex rel. Mekdeci v. Merrell Nat’l Labs.,
Next, GM draws our attention to an “odd pattern of jury deliberations.” See
Phav,
GM tries to analogize this to the situation in Skinner v. Total Petroleum, Inc.,
Those are not the facts here. The jury deliberated for only four hours, a
reasonable (if not short) length of time for a complex eleven-day trial. See Boesing,
540 F.3d at 889-90 (rejecting a compromise claim despite multiple days of
deliberations, an Allen charge, and lower-than-expected damages); see also Burger
King Corp. v. Mason,
That leaves GM’s argument about the close liability question and the jury’s
seemingly inconsistent verdict—how could the jury find rollover testing would have
led to a better design capable of preventing Bavlsik’s injuries if the jury seemingly
rejected the only design alternatives the plaintiffs offered? We admit we share GM’s
confusion about how the jury reached the conclusion it did. But the proper way to
resolve this problem would have been for GM to object to the format of the verdict
form or the final verdict itself—it did neither. See Chem-Trend, Inc. v. Newport
Indus., Inc.,
The First Circuit faced a similar situation in Phav v. Trueblood, Inc., where the jury’s causation findings could not be reconciled with one another. See Phav, 915 F.2d at 765. The court affirmed a second trial solely on damages, notwithstanding this apparent inconsistency, because the defendant failed to object to the special interrogatories or the jury’s verdict. See id. at 769. Our sister circuit reasoned: [T]he use of special interrogatories puts the parties on notice that there might be an inconsistent verdict. If a slip has been made, the parties detrimentally affected must act expeditiously to cure it, not lie in wait and ask for another trial when matters turn out not to their liking.
*18 . . . Because of defendant’s waiver, we do not consider the jury’s answers to the special questions as evidence of its confusion on liability. To decide otherwise would countenance agreeable acquiescence to perceivable error as a weapon of appellate advocacy.
Id. (citation and internal quotation marks omitted); see Fox v. City Univ. of N.Y., 187
F.R.D. 83, 92 (S.D.N.Y. 1999) (“In [Phav], the First Circuit held that a party’s failure
to object to the form of the special interrogatories submitted to the jury precluded a
subsequent argument that the answers indicated a compromise verdict.”); see also
Buchwald v. Renco Grp., Inc. (In re Magnesium Corp. of Am.),
We agree with this reasoning and refuse to consider the jury’s unclear answers in deciding whether there was an improper compromise. Our analysis may have been different had GM preserved the issue for our review. But GM did not do so, perhaps because making a timely objection to the verdict might have reduced its odds of prevailing. Now the confusion lingers on appeal in a repackaged argument about a compromise verdict. We decline to make Bavlsik and Skelly pay the price for GM not acting on this perceived error in a timely manner.
Having closely reviewed the record, we are not convinced the record so
clearly
demonstrates a compromise verdict that the trial court
abused its discretion
in not
recognizing as much. See Boesing,
III. CONCLUSION
We reverse the trial court’s decision to grant GM’s renewed motion for JML, and affirm the trial court’s conditional grant of a partial new trial on damages.
______________________________
Notes
[1] The Honorable William Jay Riley stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on March 10, 2017. He has been succeeded by the Honorable Lavenski R. Smith.
[2] The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa, sitting by designation.
[3] Neither side makes any argument about the failure-to-warn claim, and because we agree it has no relevance to this appeal, we will not elaborate on it here.
[4] The trial court did not adhere to this evidence-centric approach in granting GM’s renewed motion for JML, and instead relied largely (if not exclusively) on the jury’s findings. Much of the parties’ briefing focused on whether this approach was compatible with our precedent regarding Rule 50 and what significance, if any, we should place on the jury’s other findings. However, at oral argument GM conceded the point and invited us to focus only on the evidence. We accept this concession, and assume for the sake of this appeal that everything else (including the jury’s other findings) is irrelevant.
[5] We described a car manufacturer’s duty to design its vehicles with care in
Larsen v. General Motors Corp.,
[6] Though it does not affect the analysis given our de novo review, we note the trial court’s only reference to the evidence itself was a comment that the jury’s conclusion GM “negligently failed to adequately test the seat belt restraint system” was “supported by legally sufficient evidence.”
[7] GM moved in limine to exclude Sicher’s testimony, arguing he was not qualified to testify as an expert, the testing he relied on was unreliable and inapplicable to this case, and his conclusions were not adequately supported. The trial court rejected these arguments and certified Sicher as an expert. See generally Fed. R. Evid. 702. GM does not appeal this decision.
[8] We reiterate, although it may seem counterintuitive and odd from a practical perspective, our focus is confined to what the jury found in regards to this issue (GM is liable for failure to test), without any regard to what the jury found on other issues.
[9] An inconsistent verdict is one in which the jury “reach[es] contradictory factual findings.” Lowry ex rel. Crow v. Watson Chapel Sch. Dist.,540 F.3d 752 , 762 (8th Cir. 2008). GM resists classifying this argument as one about inconsistent verdicts, but we see no other way to characterize it. If GM thought the failure-to-test theory was only viable if the jury found for Bavlsik and Skelly on one of their other alleged theories, then GM should not have allowed the jury to be instructed that failure to test was an independent basis for liability (or at least objected when the jury reached that conclusion). The jury merely followed the instructions given to it.
[10] To the extent GM renews its arguments about whether substantial evidence
supports the jury’s liability finding, we refer to our lengthy discussion earlier in
regards to JML and the trial court’s conclusion on the issue. See Children’s Broad.
Corp. v. Walt Disney Co.,