*3 * BRIGHT, Bеfore HENLEY and JOHN GIBSON, R. Judges. Circuit HENLEY, Judge. Senior Circuit appeal is from district court’s1 August 22, granting 1980 order a new trial on all personal issues in this injury action unless plaintiffs-appellants2 consented to a remittitur, and from an adverse entered at the close of the second trial. Appellants contend the district court abused its ordering remittitur, discretion in * Henley The Honorable J. Company Smith Raleigh assumed senior Waller as defendants. status June dropped Waller was later from the suit and Corporation Tosco was substituted as a defend- Harris, 1. The Honorable Oren United States merger ant as a result of a bеtween the two Judge, Senior District Eastern and Western trial, companies. After the order for new Districts of Arkansas. Bank, Ouachita National as of Ted Curator Estate, Rodgers’ plaintiff. was substituted as a 2. The original complaint named Ted and Bar- plaintiffs bara and the Lion Oil Relief from ment, a Motion for ordered, and in Tosco filed of remittitur
in the amount on all 60(b), a new trial Rule a Motion alternative order for under Judgment contend that Appellants issues. also and a Motion Rule New Trial under peti- denying erred in their judge the Verdict Notwithstanding Judgment August tion for reconsideration Rules 50(b) of the Federal to Rulе pursuant him- failing disqualify and in 1980 order affi- parties The filed Procedure. of Civil a new trial. Fi- having self after ordered posi- support of their and briefs in davits errors allege that other nally, appellants motions, August and on tions on these which necessitate during occurred retrial ordered a 1980 the district court stated, we re- For reasons to be reversal. $250,000.00 $1,312,762.17 Rodgers and proceedings. mand for further alternative Rodgers, or in the for Mrs. motor from a underlying action arose to the dis- petition Appellants’ new trial. that occurred on October vehicle collision review of that order trict court for *4 23,1978. an automo- The collision involved denied, for Writ of Manda- petition and a (Tosco) by Corporation bile owned the Tosco denied. mus to this court was also Raleigh Wal- by employee and driven Tosco a new trial elected to take Appellants (Waller), log a truck driven ler loaded total award of than consent to a rather by Rodgers (Rodgers). Ted $1,562,762.17. of the At the conclusion travelling east on Both vehicles were a trial, however, jury the returned second 82, Highway paved No. a United States Tosco, complaint and the verdict in favor by highway. two-lanе The truck driven appeal with prejudice. was dismissed be- Rodgers was an undetermined distance order and from is both from the remittitur they ap- the automobile as hind Tosco new trial. judgment following proached point a where the Tosco vehicle attempted county to turn left onto a road. THE A 22 ORDER I. UGUST Waller contended that his left-hand blinker A. THE APPLICABLE STANDARDS on; however, light Rodgers was contended blinker circuit that right-hand the Tosco vehicle’s law in this is settled on, light began the automobile court, a motion considering in the district right a on the turning parking into lot trial, verdict for new must set aside warning then turned suddenly and without that the verdict is where it has determined vehicle, left at path Rodgers’ into evidence, weight the clear against which time the collision occurred. Wrecking Fund Ins. Co. v. Aalco Fireman’s Co., 179, (8th 1972), cert. 466 F.2d 186 Cir. collision, log After the truck left the 930, 1371, denied, 35 410 93 S.Ct. direction, U.S. struck highway northeasterly in a it is the result of (1973), L.Ed.2d 592 meter and one or above-the-ground gas id.; trees, Mueller v. Hub pine passion prejudice, more and came to rest several 1029, Imme- hundred feet from the intersection. 1039-40 Milling bard 573 F.2d diately exited the stopped, Rodgers denied, 865, after Cir.), 439 99 (8th cert. U.S. S.Ct. passenger truck from the side and landed the ver (1978), 174 or that 58 L.Ed.2d ground. on his heаd on the sus- Rodgers v. Martin clearly dict is excessive. Slatton injuries resulting quadri- tained serious in Co., Inc., 506 F.2d EbyK. Constr. plegia. denied, 1974), (8th Cir. cert. Further 44 L.Ed.2d trial, After the first returned court, more, in on such passing verdict in the million for $3.3 motions, view the evi required is not to $500,000.00 Rodgers Rodg- and of for Mrs. to the light in the most favorable days entry judg- ers.3 Within ten after dence $5,000,000.00 complaint In the initial crease the However, initially damages totalling three million dollars. In ad- was denied. by dition, Rodgers requested damages returned $3.3 on the million verdict Mrs. entered $500,000.00 jury. amount of of consortium. complaint A in- later motion to amend the non-movant; rather, weigh the view record convinces us that these “[i]t in, evidence, witnesses, findings grant disbelieve are not error. new even trial where there is substantial court, however, The district also evidence sustain verdict.” Slatton said: Co., Inc., Eby Martin K. Constr. jury, In his summation counsel 508 n.4. recovery made a request ordinarily ap The standard to be nursing of future services sum plied by passing trial court on a $2,215,320.68. in- repeatedly Counsel
request for somewhat differ quired the medical witnesses whether ent. Ordinarily, remittitur be granted is to quality by Rodg- care received Mr. where verdict is “so grossly exces ers could make a life difference his sive shock the conscience of [the] expectancy. drove his Counsel then home Drotzmanns, McGraw-Hill, court.” Inc. v. for future ex- request services Inc., (8th 500 F.2d 1974). Cir. See ceeding degree adequate deemed Stineman v. College, Fontbonne doctors, stating: 1981). 1088-89 you, in a way very way, So in a real very way, you direct can determine applied The standard to be expectancy you life Rodgers, Ted if court in reviewing the trial court’s order make an here will ade- award clear. Eby Slatton v. Martin K. Constr. quate. very .. You can determine Co., Inc., supra, this court upon was called largely the life Ted *5 expectancy to to determine the applied standard to be in Rodgers yourself by the —what provi- reviewing a district court’s order of remitti you sion make for be care him to taken tur as a condition a denying new trial of. We motion. concluded that such orders
would
be
Improper
by
not
a
or intemperate argument
disturbed
the absence of
clear
discretion,
abuse of
grounds
and that the
counsel
summation
be
may
trial
trial,
court’s
itself for a
it
to
given
determination would be
con
new
where
tends
siderable
passion
prejudice
deference. 506
at 509.
arouse undue
F.2d
We
also
that
held
“the
the
jury, thereby depriving
standard we will
the
apply
in determining
opposing party
whether there
the
of a fair
was
abuse
trial. See
ordering
Minneapolis,
discretion in
Paul
Marie
the remittitur
is
St.
&
Ste.
Sault
the
Co. v.
Ry.
Moquin,
whether
remittitur
was ordered for an
[51
amount
jury
(1931);
less than the
L.Ed.
Houfakis
reasonably
could
1243]
Carvel,
find.”
(2
Id. at
v.
would round-the-clock it to take into account cause fails against weight care the great damages requested total ence between the evidence, person lay that a concluded jury award.4 by Rodgers and actual training, eight with working minimal hours ‘ Eby v. Martin K. Constr. Slatton week, per day, days per provide seven could Inc., supra, that the this court made clear reasonably care re- necessary attendant will not deemed district court be quired. The court also found it evident if remittitur does discretion such abused its jury consideration gave substantial to an awarded not reduce nursing the exaggerated claim for care highest less than award award, in its and then said: reasonably find. 506 F.2d jury could jury clearly Where the verdict of a or appears from the record 508-09. It furthеr prejudice, due solely passion or have been the district court Court has no choice but to a new order requested overly troubled amounts Practice, trial. See 6A Moore’s Federal suffering and for pain and by Rodgers Ed., However, 2d at p. 59-59. 159.05[3] earnings.5 we shall Accordingly, it is noted at 11 Federal Practice and discussion, Procedure, Miller, 1973, at assume for the of this Wright purposes McCormick, page assumed, quote in a from may have as the district court where, 1935, 19, Damages, that in cases § in full the amounts jury awarded here, as or sympathies prejudices of Taken categories. in thesе Cf. naturally are appealed Litzau, Alive situation, to expect factual a verdict en- 1977). tirely passion free from sympathy, however, assumption, it follows From this prejudice impossibili- would to ask an reduced the had ty, appropriate. and that when it returned nursing figure only care Id. We have carefully reviewed record verdict, court, in and that counsel, arguments and the briefs and as care subtracting figure allowed well district court’s memorandum figure and requested nursing from the care opinion, and are *6 prepared we not hold resulting from subtracting then the balance that the district order inappro- court’s was award, too the overall has subtracted priate insofar as its a new trial grant of much. upon rejection conditioned the aof remitti- However, tur was concerned. the amount used, assumption basis the we On the of of remittitur ordered is more troublesome. logically more believe the district court following could have followed one of the C. THE AMOUNT OF REMITTITUR computing the amount of two methods in ORDERED First, the remittitur. district court could The district court found that the nursing have the allowed care subtracted present cost reasonably necessary future figure requested nursing fig- from the care $228,082.85, nursing Rodgers services for is ure, resulting then bal- and subtracted we might while have reached differ damages requested the total in ance from ent figure quarrel we have no with arriving at the maximum allowable verdict. methodology. district court’s The district Alternatively, court could have the district court, however, then this figure subtracted figure to nursing added the allowed care requested by from the total for requested pain the amounts for and suffer- services, future and then deducted ing earnings. and for The result the balance obtained from total amount by jury. approaches yields аwarded under either of these two Although first reasonable, $1,808,- blush appears this method upon a maximum allowable verdict of requested $3,795,785.50, requested pain suffering 4. The 5. The amount for $3,300,000.00. $1,000,000.00 while the actual award was for and the amount $495,785.50. $580,465.00. earnings, The difference is thus etc. was loss of 547.67,6 since, indicated, and this result differs from the 508-09. And as on review amount awarded court by by the district we tend no when to find abuse discretion $495,785.50, precisely which is the amount fairly against high- award measures total which the dif- jury reasonably est sum a could have re- fered from the amount awarded turned, any analysis by trial court un- jury. doubtedly will consider the totality evidence and reflect in
It not that consideration nevertheless does follow that court justice will alter the remittitur may require. award and its original jury’s reinstate the on the verdict said, From what has been it that is clear figure First, compu- arrived at. the above difficulty with our the mathematics and tations been upon assumptions based analysis prompts of the case remand. We correct, that are not known be these on re- caution that while the district court being the jury that awarded the maximum higher mand an than that may make award earnings, amount requested for loss of etс. order, made in it is not precluded its pain suffering, and that equal from that an allowed award finding intentionally district court did not reduce to or in is less than allowed its order these by way awards of remittitur.7 appropriate. sum, In precise we are unsure reasons prompted which the district court’s D. THE AWARD TO MRS. RODGERS mathematical unwilling calculations and are Appellants also contest to attempt to substitute calculations of our court’s order insofar remitti as it allowed a own. tur on Rodgers. the award to Mrs. con We will add that purposes award, sidering cor analysis a a general jury breakdown оf ver rectly diversity noted actions such as dict specific into categories types dam this, it look to forum must state’s case age Moreover, be may not inappropriate. guidance law for on the of exces it may appropriate instances be for the siveness, College, Stineman Fontbonne trial court to make analysis along lines damage 664 F.2d at and the award of requests made by counsel in their may not exceed “that which be sus could presentations. any analysis And when such highest tained were the case before court, is upon course, relied the triаl court of the state substantive law whose the extent necessary would express gives Hysell rise Iowa claim.” parties. views to the Public Service remembered, however, is to be 1977). Further, disputed while analysis helpful, and indeed governs Arkansas law as substantive instances, many necessary ultimately it is pects this claim. *7 the verdict as a that whole must be con- standard, In district applying this sidered in determining whether the verdict $500,000.00 shocking court found the award of conscience. Slatton v. Eby Inc., Martin K. conscience, Constr. F.2d at 506 to Mrs. to the Rodgers shocking yields $1,808,- future, expenses The first method past result of travеl and future. The - - [$3,795,785.50 ($2,215,320.68 $228,- $1,000,000.00 547.67 pain, suffering balance was for 082.85)]. $1,808,- yields anguish, The second method physical injury, scarring and mental ($228,082.85 $1,000,000.00 $580,- 547.85 + + $2,215,320.68 disfigurement and for and 465.00). $.18 difference an addi- reflects nursing gave It is that care. evident appellants tion error on of in calculat- grossly exag- to the substantial consideration ing requested. the total amount gerated for care in claim its award of $3,300,000.00 Rodgers, to Mr. even to the 7. The district court stated: by extent full amount coun- request Of the total of counsel for sel in his summation. summation, damages $3,795,785.50, for may may in his language that or not indicate $580,465.00 past by and was claimed for was also trоubled income, personal future loss of suffering. services to pain amount household, expenses past medical 1298 $10,000.00 Jansson, ruling, where supra, damages concluded $250,000.00 for loss of consortium appropriate. approved were Rodg- by Mr. year, one while loss [sic] have cited cases in Appellants several thirty more than ers will extend for $500,- support of their contention extraordinary years, past and includes We ob-
000.00 award was not excessive.
care
services.
however,
serve,
the bulk of the cases
cited
involved
laws of forum states oth-
disclosed, in addi-
research has
Our own
Arkansas,
er than
and are therefore not
court,
tion to the cases cited
point.
v. Font-
directly
See Stineman
of the Arkansas Su-
two 1981 decisions
College,
bonne
1299 to, by, uncertainty, partial available and the factors considered confusion or a new trial that court. inappropriate. it Nevertheless is observed that while the circuit still follows the rationale of were
two 1981 decisions discussed above
Gasoline Products.
See Slater
RFC
rendered after the district court’s order was
932,
(8th
1980);
621
938
Corp.,
entered,
they
virtually
are
contemporane- Richardson v. Communications Workers of
ous with the district
order.
court’s
For
America,
126,
Cir.),
cert.
reason,
because
already
we have
direct-
denied,
77,
50 L.Ed.2d
ed the district court to reconsider the dam-
(1976). Further, we
have held that
age
Rodgers,
award to
deem it appropri-
we
district court’s decision as to whether
ate to allow the district court to reconsider
grant
pаrtial
a
new trial is to
reviewed
be
the award to Mrs.
as
Rodgers well.
court
by this
under
abuse of discretion
standard.
See Richardson v. Communica
II. APPELLANTS’ REMAINING CON-
America,
tions Workers of
partial
trial, may
properly
new
not
be
trial in violation
605 of the Federal
of Rule
appears
resorted to unless it clearly
that the Rules of Evidence.
issue to be retried
separa-
is so distinct and
Appellants
following
have cited the
ble from the others that a trial of it alone
rendering questionable
as circumstances
injustice.”
without
had
Id. at
judge’s
impartial:
to remain
ability
of medical care
must
thereof;
read to
should be
legislation
cost
proposed
litigant’s
of a
the transformation
warrant
(3)
certify
for
The trial court’s refusal
may
question
decide a
judge
remittitur and
that a
by this court the
fear
review
fear”
previously;
new
issues discussed
him into a “reasonable
against
trial
impartial. Liti-
will not be
judge
previous
(4)
pe-
fact that appellants’
The
judge
to face a
ought not have
alleged
gants
had
for writ of mandamus
tition
of
question
is
reasonable
judge
trial
had abused his discre-
there
a
where
tion
are not entitled
respects.
they
in several
but
impartiality,
their
choice.
judges own
addition,
four instances
appellants
cite
during
320-21,
the second trial as evidence
F.Supp. at
Fielding,
v.
454
Blizard
was,
fact,
in
judge
trial
biased.
in
reprinted
quoting H.R.Rep.No.1453,
merit.
test.
tiality
he
basis for
effect,
vides:
“ ‘promote
statute indicates that
601
Rep.No.1453,
1974,
1978),
Fielding,
(a)
ty might reasonably
in
(b)
following circumstances:
or
These contentions are
§
The
[1974]
should
F.2d
ry
sonal
рrejudice concerning
(1)
455.
any proceeding
magistrate
Any
He shall also
Pub.L.No.93-512,
United
See
aff’d
that if
facts
legislative history of
Where
28 U.S.C.
U.S.Code
1217
doubting
knowledge
454
Disqualification
disqualify himself.’
United
justice,
101 S.Ct.
public confidence
test, however,
sub
concerning
93rd
States
judicial process by
there
(1st
(1st Cir.),
F.Supp.
he
nom.
Cong.,
States
judge,
disqualify
has
Cong. & Ad.News
§
in which
shall
is a reasonable factual
455,
Blizard
be
it was
judge’s impartiality
1979), quoting
a
88 Stat.
completely without
disputed
318,
2d
disqualify
questioned.
cert.
or
personal
a
We observe initially that the collat ing care even the extent full eral source rule and Rule 411 the Federal requested by counsel in his summa- Rules of designed Evidence are avoid court, therefore, tion. The prejudice ordered possibility party. to the insured Chleborad, See Charter v. the amount that the claimed denied, Cir.), cert. 434 U.S. 98 future service exceeded the cost of *11 the record and supported by the services OCCHINO, Appellant, L. Richard following conclusions: made ele- and of аll In consideration factors claimed, finds damage the Court
ments America, Appellee. STATES UNITED as to should ordered OCCHINO, Anthony Richard Leo Rodgers in to Ted awarded Appellant, $1,987,237.83. This would the amount of $1,312,762.17, recovery reduce his larg- is the
which amount the Court finds City MINNESOTA, DULUTH, OF CITY reasonably Louis, est sum which could County Min- Municipality; of St. competent upon nesota, Municipality; County have awarded based Daniel J. Officer; Valure, evidence in record Police Thomas substantial Duluth Officer; Cich, E. Police Carl weight there- M. Duluth giving proper and after County Agent, Hammerberg, Correction to. Minnesota; Gregory Louis, J. St. The district court’s conclusion thus Sheriff, County Sertich, County of St. as a rather than based the verdict whole Minnesota, Louis, Appellees. award, specific making up elements 81-1747, 81-1818. Nos. earnings, pain suffering, future services. The Appeals, United Court of States court’s conclusion should be so reviewed Circuit. Eighth in math- by engaging this court rather than May 1982. Submitted ematical calculations on the items of dam- Aug. Decided optimistic often ages overly in argument. counsel district court’s conclusion consist-
ent with the standards set forth in Slatton Company,
v. Martin Eby K. Construction
Inc., 1974). 508-09 I see principles
Under no Slatton
abuse of discretion on dis-
trict court reaching conclusion. gamble
Plaintiff chose to with a substan- “sharp
tial award in a case with a conflict as to the of the evidence causation
collision.” I would not relieve consequences gamble, and would
affirm the the district court.