*3
ground that the trial judge
put
erred in
BOWNES,
Circuit Judge.
Senior
ting the
proof
burden of
as to enhance
ment of injuries on them. We certified
appeal
This
arises out of
action
an
that issue to the
Supreme
New Hampshire
brought
the district court arising from a
Am., Inc.,
Court.
Volkswagen
Trull v.
19, 1991,
collision on February
in Conway,
(1st Cir.1999).
Supreme
New
The
Hampshire, between a
Volks-
Hampshire
Court of New
wagen Vanagon
ruled that in a
and a 1979
Con-
AMC
damages
corde.
enhancement
was driven
situation the bur
David
proof
Trull.
den of
Benjamin
His
sons
falls on the
two
Na-
defendant. Trull
Am., Inc.,
thaniel were
v. Volkswagen
seated
the rear passenger
145 N.H.
killed;
(2000).
Benjamin
brother,
seat.
his
A.2d
We remanded to the
Nathaniel,
injuries.
received serious
district court for a new trial. Trull v.
Inc.,
at
Am.,
objections
instructions
The record shows VW questions submitted prior that the two ject verdict forms at time forms jury general verdict jury. The rec- to the to their submission to the 49(b). Rule that there were no under ord further establishes AMERICA, v. TRULL VOLKSWAGEN OF INC.
Cite
as
(IstCir.
2002)
cal
Liability
times was that
the verdicts did
Strict
not
become
until
inconsistent
after the
you
by preponderance
1. Do
find
completed
them. But we cannot ac
Vanagon
the evidence that the 1986
this;
cept
to do so would countenance
defectively designed because it lacked
“agreeable acquiescence
perceivable
er
seating
in the rear
lap/shoulder belts
weapon
ror
appellate advocacy.”
positions?
Fishing Corp.,
McIsaac
Didriksen
NO
Cir.1987)
(quoting Mer
(Yes No)
or
chant,
88-89);
740 F.2d at
see also Bab
Negligence
cock,
By
The instructions made
clear that the
to decide the
of
jury was to be asked
issue
quote extensively
pri-
from our
We
theory
liability on both the
of strict liabili-
Babcock,
opinion in
VW has cited cases from other
gence.”
argues
Br. at 17.
It first
VW
tions that
a matter
have ruled as
of law
that
the
of
is de
standard
review
novo.
finding
that
of
verdicts based
a
no strict
position
applicable
This
the
contrary
is
to
liability
design
a defective
case would
post-trial
law.
filed a
motion for a
nullify
liability
a
finding of
de-
or,
alternative,
Babcock,
remittitur
the
for a
however,
new
sign. As we stated in
trial.
a
for judgment
It also filed motion
We need not determine whether
that
as a matter
law or a
trial.
of
new
is
proposition is
is enough
correct—it
these motions
determine the standard
conclude,
do,
Hampshire
as we
that New
of review.
law is
clear
question
not so
on the
that it
plain
was
error for the
court to
district
reviewing
In
of
the denial
a mo-
enter
judgment
verdict.
tion for
as a matter of law
we
9 occupants ing forward movement of substantial reduction.” VW Br. at restrain not; lap belts do while damages Our standard of review of is a long It was known for time before abuse of discretion: alone did not offer lap belts We review the denial of a motion for a protection occupants and adequate remittitur for abuse of discretion. See lap-shoulder were needed to belts 493; Anthony, F.3d at v. McDonald job; do Laboratories, Inc., Federal 724 F.2d 1980, all In NHTSA sent a letter 243, We will find an manufacturers, including motor vehicle only abuse of discretion if the jury’s stated, in “rear Volkswagen which “any verdict exceeds rational appraisal three-point seat belts should be offered or estimate of the damages could be protection for additional to rear seat jury.” based on the evidence before the occupants. They have been offered Inc., Family, Milone v. Moceri 847 F.2d Volvo, Mercedes and few others for (1st Cir.1988) 35, 36 (quoting Segal v. years many equipment”; as standard Inc., 78, Systems, Gilbert Color 746 F.2d 1986, Vanagon In sold the Volkswagen (1st Cir.1984)). We have noted that foreign in four countries with rear shoul- path “the obstacles which stand in the equipment; der harnesses as standard of’ such claims of excessiveness “are 1986, Volkswagen In sold four out of five formidable ones.” Wagenmann in type of its sedan vehicles the United Adams, (1st Cir.1987). 196, lap with rear States shoulder belts as Translating legal damage money into equipment; standard damages “peculiarly is a matter within a 1970’s, early Vanagons all Since ken,” jury’s especially involving cases points anchor which would have allowed Id.; intangible, non-economic losses. lap-shoulder for installation of belts Hospital also Correa v. see San Fran seats; the rear cisco, (1st Cir.1995) Volkswagen offered the same rear seat (“An appellate court’s normal disinclina optional equipment shoulder harness as jury’s tion to second-guess evaluation Vanagon for the 1986 sold in the United proper damages amount of equipment which was standard States where, here, magnified damages other countries. a monetary intangible entail valuation of record, Based on our examination of the losses, judge, having and the trial seen difficulty we no that there ruling have hand, and heard the witnesses at first from plethora of evidence which the accepts jury’s appraisal.”), cert. de could find that VW was not nied 517 U.S. 116 S.Ct. equipping plaintiff sold (1996). Viewing L.Ed.2d 547 the evi passenger with shoulder rear belts light dence in the favorable to the most proxi- and this was the seats verdict, assessment of dam injuries cause of the enhanced mate suf- ages will not be disturbed unless it is *9 by Benjamin fered Nathaniel and in the excessive, inordinate, “grossly shocking collision. court, or high to the conscience of the so III. THE AWARDED NA- DAMAGES justice that it would be a denial of
THANIEL TRULL Segal, permit (quoting it to stand.” Id. (internal 80-81) quotation at that the 746 F.2d
VW contends award of omitted). $8,917,335.27 excessive, wildly justify- “is marks evidence a medical econo- 29-30 There was Corp., v. Kmart Smith Nathaniel expectancy mist the life that and that economic loss years was 58.1 mental, points a number of VW injury was approximately due $5.3 problems and physical, psychological pointed million. district out As the prior afflicted which Nathaniel was a denying in its VW’s motion for order bedrock foundations accident. One of the remittitur, any econom- VW did not submit the defendant takes the of tort law that figure The million did ic evidence. $5.3 Figueroa- him. plaintiff as finds See pain amount and suf- not include for Toledo-Davila, Torres fering damages. hedonic or other (1st Cir.2000); Sewall, Doty v. properly The instructed Cir.1990); Page W. Keeton past entitled to recover for Nathaniel was al., Keeton on Law et Prosser and future, mental an- (5th pain suffering, and and ed.1984). points § VW out Torts guish disability. and evidence conflicting that there was on how injured. seriously Nathaniel was From We that the district court did not rule vantage point we focus on evidence our in the motion denying abuse its discretion Smith, 177 favorable to the verdict. See for a remittitur. F.3d at 30. THE RE- IV. EXCLUSION OF TEST claims that based on unrefuted VW IN THE LAN- PORTS GERMAN did medical evidence Nathaniel not suffer GUAGE injury put in accident. To it in a brain “In the crash he sustained a VW’s words: long. This need not detain us issue a injury consisting of skull fracture head reports offered as exhibits test the Ger- epidural hematoma without brain and Plaintiff language. objected man and the damage sequelae.” and VW Br. at 49 reports court informed VW the would But (emphasis original). on cross-exam- they not be admitted unless were translat- ination, witness, Dr. expert VW’s medical into English. ed This was not done. Mendelsohn, Trull testified Nathaniel district court did not abuse its discretion did, in fact sustain change his condi- the documents. excluding tion, making him worse. affirmed. below is competent
There was evidence that Na- appeal plaintiff. Costs on awarded to depressed frac- thaniel sustained a skull causing to form inside the brain
ture blood CAMPBELL, LEVIN H. Senior Circuit away by opera- to be an that had drained Judge, concurring. craniotomy. called a
tion judgment. sepa- I in the I concur write rately why I do not by neuropsycholo- There was because understand evidence my colleagues, finding after that VW did gist psychologist clinical both preserve not the issue verdict inconsis- whom treated Nathaniel before issue to opinion tency, gone these have discuss that after accident. The do, a like- suggesting head the extent even experts was that Nathaniel’s trauma ly consistency jury’s his between the two ver- pre-existing exacerbated condition so responses independently dicts. or not the that he is now unable to live Whether design supervised and will have to live under defective inconsistent, preserve the VW’s failure to structured conditions for the rest of his issue, and the absence of inconsistency *10 life. error, plain makes the inconsistency issue results seem contradictory in a particular irrelevant. New Hampshire law is so case. clouded as to make it undesirable for The overriding point here is simply that appeals federal speculate to unneces- preserve VW did not the inconsistency is- sarily ways that might be later seen as sue. That should end the matter. While pronouncements on one or another facet of the jury’s logic respect with to its answers issue. inconsistency on the two counts debatable, is indeed I fully agree my colleagues that by there is injustice no obvious to entering failing object to at the proper time to the verdicts, on the as the court did. court’s relevant instructions jury and The jury’s intentions were entirely clear— forms, by failing object on inconsis it found predicated on negligence, tency grounds after the verdict was read and there was ample to support evidence dismissed, before the VW such a finding. Whatever the inconsisten- waived claim of verdict inconsistency. cy of its negative finding on defective de- See, e.g., Antilla, Howard v. 244, 294 F.3d (if sign, that finding inconsistent) is most (1st Cir.2002); Bonilla v. Yamaha Mo reasonably product seen as the of confu- Corp., 150, tors 155-56 Cir. sion as to the elements of the defective 1992). IAnd agree further there was no count design rather than casting as doubt plain error. The latter is not simply a on the validity of jury’s resolution of question of whether the court acted cor the negligence count. There is nothing under rectly Hampshire New law. Even fundamentally unjust entering about judg-
.clear and obvious error of law state would ment both counts. If VW wanted to not, itself, plain amount to error. The argue issue, the inconsistency it needed to error would “plain”, not be as so to excuse preserve rights. its VW’s failure object, unless the error had also resulted in a miscarriage of jus- See, e.g.,
tice. Olano, United States v. 725, 733, 1770,
U.S. 113 S.Ct. 123 L.Ed.2d (1993); Lowell, Chestnut v. Here I can no see miscarriage justice regardless of wheth COOK, KATHLEEN Plaintiff, Appellee, er or not findings defective design and negligence were inconsistent. entirely therefore unnecessary for LIBERTY LIFE ASSURANCE this court to suggest there was in fact BOSTON, COMPANY OF consistency, in particular neg because the Defendant, Appellant. ligence question submitted the jury ref No. erenced 02-1656. testing well negli as gent design. Reconciling finding of no United Appeals, States Court of design defective with a finding of negligent First Circuit. testing, record, on this is not much easier than reconciling it with a finding of negli Heard Oct. 2002. gent design. sure, be To Hampshire New Decided Feb. apparently permits cases submitted simultaneously on design defective theories, but this does not de
termine what should be if done