Ouachita National Bank, Curator of the Estate of Ted Rodgers, Barbara Rodgers, and Ted Rodgers v. Tosco Corporation, 716 F.2d 485

Ouachita National Bank, Curator of the Estate of Ted Rodgers, Barbara Rodgers, and Ted Rodgers v. Tosco Corporation

716 F.2d 485

8th Cir.

1983

Check Treatment

*1 485 guidеlines is now established that cational to determine It that used guidelines may 2, be Haynes Appendix medical-vocational was not disabled. See whether cases to determine appropriate 200.00(e)(1). Vocational testimony § perform the claimant can are jobs which required guidelines since the could not be economy, in the national and con available used to direct a determination of not dis- determine whether the claim sequently to abled. Campbell, аnt is disabled. Heckler v. regulations pertaining Because the 1952, 1957-58, -, 76 103 S.Ct. -U.S. evaluation of nonexertional impairments Schweiker, (1983); McCoy L.Ed.2d 66 v. case, were not followed in this we do not supra, upholding 683 F.2d at 1145^46. reach the issue of whether decision of in the validity of the rules contained Secretary was supported by substantial guidelines, however, the Supreme Court evidence. We reverse the safeguards regula- noted the built into the district court and remand to the district tions “If an individual’s capa- themselvеs: court with directions to remand to Sec- bilities are not described accurately so that retary may granted benefits or rule, regulations make clear that vocational testimony taken to determine particular individual’s limitations must be whether the Secretary can meet her burden 103 at 1955 n. 5. considered.” S.Ct. of showing that work was available for guidelines predicated rules in the are on the someone with the impair- nonexertional physical claimant’s exertion ca- strength mеnts which the administrative law judge pabilities; if the claimant’s consequently, Haynes has concluded suffered before nonexertional, impairment the rules are expiration of her eligibility period. cannot controlling and be used direct a conclusion of disabled or not disabled. Schweiker, 633,

See v. Nicks 696 F.2d 2, If,

(8th Cir.1983); Appendix 200.00(e). § limitations,

as a result of nonexertional

claimant’s characteristics do not identically 2,

match the criteria of a rule in Appendix

the Secretary produce expert must voca-

tional testimony meet her burden of showing jobs are available in the na- BANK, OUACHITA NATIONAL Curator tional economy person for a with the claim- Rodgers, of the Estate of Ted ant’s O’Leary characteristiсs. v. See Rodgers, Appellants, and Ted Schweiker, at 1339. supra, 710 F.2d In this case the administrative law CORPORATION, Appellee. TOSCO judge recognize Haynes’ failed to limi tations —colon discomfort No. 81-1490. epi and recurrent sodes of diarrhea —were nonexertional and Appeals, United Court of States encompassed therefore not in the definition Eighth Circuit. of ability to do sedentary work. See 20 (1982). 404.1567(a) Haynes’ C.F.R. medi § 13, Jan. 1983. Submitted cal nothing phys difficulties had to do with 25, Aug. Decided 1983. ical exertion. Instead her mani diffiсulties Sept. As Amended 1983. fested themselves without to her regard general bodily strength, or her ca physical tasks,

pacity perform exertional or her to fulfill

ability strength the muscular and

requirements jobs. See 20 C.F.R. 1545(b) ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍(1982); 200.00(e). Appendix

§ §

Thus the administrative law commit judge

ted error when he relied on medical-vo- *2 Bernard

Whetstone & Whetstone Whetstone, Rock, Ark., appel- Little lants. Brown, Compton & Compton,

Robert C. Dorado, Ark., Prewett, Ltd., appellee. El HEANEY, LAY, Judge and Before Chief McMILLIAN, ARNOLD, ROSS, BRIGHT, GIBSON, FAGG, Circuit R. JOHN EN BANC. Judges.

BRIGHT, Judge. Circuit and Oua- Rodgers, Ted (curator of the National Bank estate chita appeal addition, from the district Rodgers) they of Ted suit. substituted Tosco pursuant jury Corporation entered to а for the Lion Company Oil fol- plain- The district court dismissed lowing merger verdict. companies. of these two against Corpo- claims defendant Tosco Rodgers sought tiffs’ million in damages $3 (Tosco) arising bodily from severe ration injuries. for his Barbara Rodgers sought injuries sustained in an $500,000 in damages for loss of consortium. *3 with a vehicle owned automobile collision trial, At Tosco contested both liability in In an predecessor Tosco’s interest. damages. and Tosco contended Rodgers trial, еarlier a had awarded Ted and contributorily had been negligent jump- million, the Rodgers Barbara but dis- $3.8 ing from his truck the following accident. $1,512,- trict court ordered a remittitur to Rodgers, found for awarding $3.3 762, or in the alternative a new trial on Rodgers $500,000 million to Ted and to Bar- the grounds of excessiveness of awards. Rodgers. bara and, Rodgers rejected the remittitur Following the trial court’s entry judg- Bank, re- joined by the Ouachita National ment, Tosco filed several posttrial motions. their Tosco. At the against triеd case response, In the court district filed a memo- trial, contrary second the arrived at a opinion randum stating it had deter- ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍appeal, result and dismissed the action. On mined the verdict jury’s liability on not to pertaining raise several issues to appellants the against great weight of the evidence. ordering the of a remittitur. district court, therefore, The district denied Tosco’s record, Upon review of the we conclude for a new motion trial. The how- court committed prejudicial ever, also concluded that the amount of calculating error Ted * * * after the first trial. the as to amount of the we the Accordingly, judgment must reverse clearly verdicts of the were exces- of dismissal on the second trial and remand sive, the against great weight of the evi- case to district court to correct the dence, not supported by substantial evi- initial error made in the remittitur order dence, product of passion, and that to trial. following first permit verdicts оf the stand judgment

the form of would result ain Background. miscarriage justice. I. clear 3,1978, a tractor trailer driv- Consequently, On October the court ordered a remitti- Rodgers en Ted collided with a car driv- tur Rodgers’ damages Ted from $3.3 Waller, $1,312,762.17, en by Raleigh employee an of Lion million to or in the alterna- tive, Company. driving addition, Oil Both men had been a new trial. the court eastward, jury’s seven miles east of award to approximately found Barbara Dorado, Arkansas, 82, a Highway grossly El on U.S. “so excessive as to shock the con- therefore, paved, highway. court[,]” two-lane The two vehicles science of this or- center line. remittitur on her highway’s collided near dered a from $250,000, alternative, the center or in the a Rodgers’ truck crossed line highway continued off the for several hun- new trial. dred feet. after the truck Immediately Following petition an unsuccessful to the stop, Rodgers leaped came to a to review its order and an

truck, doing, and in so struck his head on pеtition unsuccessful to this court for a writ Rodgers sustained a severed ground. mandamus, the Rodgers pro- elected to cord, spinal perma- and has been rendered a with a new trial rather ceed than accede quadriplegic. nent $1,562,962.17. a reduced total award of Pri- trial, wife, the district court Rodgers Rodg- and his or to the second ers, court, against permitted filed suit in district Lion the curator of Ted es- Bank, tate, substi- National Company Raleigh Oil Waller. The Ouachita for Ted party plaintiff later dismissed Waller from the tute as On reasonably a verdict com- less than the find.” retrial, returned at 508-09. liability. Tosco of Id. absolving pletely in the judgment from appeal On the trial carefully reviewing After trial, an of this filed panel second record, briefs, parties’ as well as the we of the dis- vacating opinion that while the district court was conclude the cause for remanding trict court remittitur, justified granting it errone proceedings. further Ouachita National ously calculated the amount of the remitti (8th 686 F.2d 1291 Corp., v. Tosco Bank tur, doing so arrived at an amount Thereafter, petition on Cir.1982). substantially less than the amount to which this court has reconsidered rehearing, was entitled under the circum court en banc. appeal by the presented of the case as to the stances judge. reviewing the briefs and tri After records, adopt only we Part II of the al B. The Amount of Remittitur Ordered *4 Specifical Id. at 1299-1301. panel opinion. Rodgers. for Ted (1) that: the district court did ly, we conclude Following jury’s verdict in the first to denying appellants’ request not err in trial, jury’s court sustained the district issues in the second trial to a limit Tosco. The dis- finding liability against of 1299; (2) at damages, of Id. determination trict court ordered a remittitur because the judge properly district refused dis closing that an improper court determined the second trial and qualify himself before by plaintiffs’ counsel had so in- argument witness, Id. at improperly did become their flamed the that 1299-1301; (3) and the district court did not Rodgers’ nursing for Ted future care award Tosco to inform the permitting err The district grossly exaggerated. that it insurance. Id. at 1301. We carried apparently jury prop- found that the remaining proceed only now to address ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Rodgers awarded Ted the full amounts erly appeal: appropriateness issues on requested earnings that he for loss of and district court’s remittiturs to Ted and Bar pain We find no fault with suffering.1 bara Rodgers. any of these determinations district court. II. Discussion. a total for Rodgers request made A. of Rеview. Standards $3,795,785.50, alleged which included ex- care, nursing for while the actual grant penses A trial court should less, $495,785.50 jury award to him was grossly when the verdict is “so exces $3,300,000. remittitur, the conscience of In calculating sive as to shock [the] McGraw-Hill, present court determined the Drotzmanns, Inc. v. district court.” Inc., (8th Cir.1974). Rodgers’ reasonably necessary value of Ted 500 F.2d $228,082.85. Co., nursing future services to Eby Slatton v. Martin K. Construction with (8th Cir.1974), court enun We find no fault this determination. 506 F.2d 505 this fig- in review The district court then subtracted this applied ciated the standard to be Rodgers request- trial court’s of remittitur as a ure from the total amount ing a order care, $2,215,320.68. a new trial. We stat for future denying condition for ed difference, ed, The court subtracted the apply “the standard we will in determin district $1,987,237.83, jury’s an total award ing whether there was abuse discre $3,300,000, that whether Ted and concluded ordering tion in the remittitur $1,312,762.17represented the resulting the remittitur was ordered for an amount pain, suffering, Rodgers argument and mental an $1 calculated million for 1. Ted finаl $580,465 damages past injury, scarring disfigure guish, physical for and future loss of household, income, personal suffering), to the (pain services all exclusive of nurs ment (loss expenses expenses medical earnings). and travel ing expenses. amounts of He calculated additional have properly amount a The Amount of highest C. Remittitur Ordered Rodgers.2 awarded to Ted This methodolo- for incorrect. gy is The district court considered the court failed to take into con- jury’s award to Barbarа Rodgers fact sideration the did not for separately. loss of consortium the full amount of his award court stated: damages, for ex- request including alleged jury’s $500,000] gross- award is so [The nurses, penses special but an amount ly excessive as to shock the conscience of $495,780.50 result, less. As a the district this While the Court. evidence shows court deducted too much from the jury’s deprived Mrs. has been did, as the Assuming, award. husband, the services or her and to [sic] do, Rodg- and as we degree some of his companionship, and requested ers the full amounts he for loss of has required by been the financial cir- earnings suffering, cumstances to serve as his fulltime at- partially itself must have reduced tendant, it is contemplated that she will recovery for future services from have the benefit of a hired attendant Thus, requested. the amount he care Ted Rodgers’ eight needs hours court erred in further deducting the total per day, and that she will not which exceed- be called request largest upon perfоrm ed the amount a could have services over and above awarded for future services. the usual call of marital duty the fu- will ture. She be relieved of financial *5 having decided on re- worries and extraordinary duties. mittitur to reduce that amount which was attributable to future cost of The court reasoned: care, computed should have the reduced has, Arkansas Supreme Court on in either of the following ways: occasions, some by way acted to reduce of First, the district court could have subtract- remittitur awards for loss of consortium. ed the allowed care from the figure Jansson, 410, v. 257 Ark. 516 Scott S.W.2d requested nursing figure, care and then (1974); Transporta- 589 Missouri Pacific subtracted the from the resulting balance Miller, 351, tion Co. v. 227 Ark. 299 damages requested arriving total at the (1957); S.W.2d 41 Arkansas Louisiana maximum allowable Alternatively, verdict. Strickland, 284, v. 238 Ark. 379 Gas Co. the district court could have added the al- (1964). 280 S.W.2d lowed care to the amounts figure In view of the circumstances of this requested suffering and for case, the virtual of Ted quadriplegia loss of earnings. The result under either of of virtually complete loss approaches these two a maximum yields consortium, normal marital the exceed- $1,808,547.67.3 allowable verdict of This re- ingly heavy burden constant attendant by sult differs from the result awarded through care she has carried the date $495,785.50, by pre- district court which is trial, continuing and the attention the amount cisely by which the total dam- give which she must to her dur- ages requested differed from the amount husband by ing remaining years, his the Court con- jury. $1,808,- yields 2. The trial court’s calculations can be summa- 3. The first method a result of 547.67, ($3,795,785.50-($2,215,320.68-$228,- rized. $1,808,- 082.85)). yields The second method Nursing Requested Services $2,215,320.68 547.85, $1,000,000 ($228,082.85 $580,465). + + Trial Court’s Calculation of an $.18 difference reflects error addition Nursing Reasonable 228,082,85 Services appellants calculating on the (Amount Remittitur) Difference $1,987,237.83 requested. total amount Jury Award $3,300,000.00 Remittitur $1,987,237.83 Trial Court Award $1,312,762.17

490 modify granting of Arkan- order remittitur Supreme Court its or new

eludes figure sas an award to Barbara trial to correct the rеmittitur for Ted would sustain $250,000.00 $1,808,547.67.4 in the amount of Rodgers Rodgers reject We Bar- those com- compensate her for appeal and affirm the district bara the term of loss of consorti- bined under with judgment respect to her. by is suggested um. This Scott Bank en- Appellant Ouachita National $10,000.00 Jansson, where supra, ruling, titled to costs on this appeal. for loss of consortium for approved was Rodgers one while the loss Mr. year, GIBSON, R. with Judge, JOHN Circuit thirty years, will extend for more than McMILLIAN, joins, Circuit Judge, whom care past extraordinary and includes dissenting part, concurring part. services. I respectfully dissent decision of $250,- in the amount of A remittitur majority to remand this case to 000.00 in the award to Mrs. Barbara fig- correct Rodgers for her loss of consortium herein $1,808,547.67. I ure for Ted will be ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍ordered. would affirm the of the district prior We have no case to 1981 in found court entered after the second trial. Supreme which the Arkansas Court sus- majority opinion suffers from two an award of than greater tained infirmities. It treats the issue of See, e.g., loss of consortium. v. Jans- Scott by considering particular elements of son, (1974). 257 Ark. S.W.2d damage separately and not opin- Our examination of the district court’s whole, award as and its entire chain of ion leaves us convinced that reasoning is based on the amounts of the did not abuse its discretion order- separate damage requested by items of Thus, ing Barbara remittitur. argument. counsel in rejection is bound her of remittitur at the first trial and is fore- The district court concluded from review- recovery by closed from the dismissal in the the entire amount of dam- ing record as to second trial. excessive, that the verdict ages clearly evidence, against great weight *6 III. Conclusion. supported by substantial evidence. remittitur, We conclude the court abused its considering district the district court discretion in the reducing Rodgers’ recognized high- dam- that the standard was $1,808,547.67. ages prop- below we the could Accordingly, damages jury est amount of judg- specifically reverse the district have awarded. It found entry erly court’s pursuant jury gave ment to the second trial and re- substantial consideration mand this cause to the district court to to the claim for nurs- grossly exaggerated care, reject Judge nursing 4. We must John R. Gibson’s view have awarded Ted opin- thereby dissenting concurring advanced in his and and erred in its calculation of the over- only proper subject award. ión that the consid- all for our entirety. By damage eration is the award in its reject Judge Fagg’s We view аs well. must necessity, by guided we are in this matter the jury Judge Fagg would entire reinstate the manner in which considered the district court approach award to Ted This over- expressly the award. The district court con- rules court’s reasoned belief that separate sidered each of the elements of dam- attorney jury the so inflamed the as to ages. The court stated that it based the remit- Judge Fagg closing prejudice Tosco. terms the improper closing argu- titur “low-key.” on its belief that argument and “run-of-the-mill” by ment the influenced the Reading transcript closing argument, counsel of the the nursing might agree, to award an amount for excessive but we were not we be inclined to care, thereby resulting position in an excessive overall in in courtroom and we are no the quarrel approach. speculate argu- verdict. We do not with this effect of that about the overall concludes, however, opinion position judge Our the dis- was in the best ment. The trial trict court in the effects of the final erred its mathematical calculation to observe and assess largest argument. possible of the amount could the was so clear on the evidence of the full because to the extent even ing care services that the nursing question his summa- the counsel in requested by amount therefore, ordered a justified making in district tion. The so in the amount a While it did on that item. dis- remittitur. conclusion specific service ex- future the claimed the total considered properly trict court supported services as the cost of the ceeded it to the award and found amount of conclusions record, following the the by excessive, so reasoned from doing and in on the verdict that it was based made clear serv- the excessive as a whole: conclusion, however, Its requested. ices factors and ele- of all In consideration specific item of limited to this was not claimed, the finds Court damage ments was based on dam- but rathеr damages, be ordered as remittitur should that a errs in re- majority ages as a whole. awarded to breaking the award question by viewing $1,987,237.83. This would amount of and presumed components its down into $1,312,762.17, recovery to reduce his For all in its own calculations. engaging larg- is the the Court finds which amount know, reaching its award we reasonably which the could est sum all three that the claims for have felt may upon competent have awarded based only logical way excessive. The items were in thе record evidence and substantial is the manner verdict to be reviewed for the weight there- giving proper after considering court in by the district followed to. it as a whole. its con- analysis The district creat- analysis quicksand our on place We as a based on the verdict clusion are thus when we take as the fervor of counsel by ed specific elements rather than whole in review of a starting point suffering, up making award — requests the amount counsel award future serv- earnings, loss of items in the particular and the argument, should The district court’s conclusion ices. Optimism springs damages. request than by this court rather be so reviewed an award requesting eternal in counsel on in mathematical calculations engaging are instructed jury. Lawyers from counsel requested by the items of juries awards from generous request argument. very few err teaches that experience is consist- court’s conclusion The district the low side. damages on requesting set forth in Slatton ent with the stаndards fol- conclusion reaching its Co., 506 F.2d Eby K. Construction Martin largest sum looking lowed Slatton Cir.1974). prin- (8th 508-09 Under have reasonably which I no abuse of discretion see ciples Slatton and substan- competent based on reaching court in of the district on the case review tial We should evidence. its conclusion. *7 rather than standpoint this from verdict. general returned a jury jury argu- the detail of the of standpoint spe- and no interrogatories There were no plain- counsel for by optimistic made ments con- jury to inform us how the cial verdict to view equally fallacious tiff. It would be specific for each item of request the sidered the standpoint the of award from jury a of the know the amount damages. We for the of counsel arguments abstemious in its and the district court general verdict arguments that of point defendant. the verdict clearly general deals with order defendant, counsel, plaintiff whether of as a whole. damages amount of and the what but rather the measure not be should This found. reasonably have could jury that the only speculate can majority verdict which the from standpoint was the the exact amount determined award jury and it by reviewed was plaintiff earnings requested by of loss of which this from standpoint should be pain for exact amount of and the the verdict. court reviews It is suffering requested by plaintiff. 492

FAGG, Judge, concurring considered, judge Circuit otherwise the was not a dissenting part. position properly determine if the remittitur was for an amount less than the reached I concur in the result jury find. v. reasonably could See Slatton claim for of majority Rodgers’ on Mrs. loss Co., K. Eby Martin Construction 506 F.2d agree but I with the consortium do 505, denied, (8th Cir.1974), cert. 421 508-09 imposed jury on the award to 931, 1657, (1975). 44 L.Ed.2d 88 U.S. S.Ct. Mr. at the first trial. Notwithstanding passing conclusory a run-of-the-mill, low-key argu- In a final to the effect that he statement considered objection ment that no or interference drew damage “all factors and elements of opposing from counsel or the trial claimed,” judge’s it is self-evident from the Rodgers’ gave his attorney request analysis that he did not consider the verdict $2,215,- damage, asking on each item of Instead, judge’s as a whole. calculation care, $1,000,000 320.68 future nursing for highest figure nursing of the reasonable for pain, suffering, anguish, mental directly care determined the amount of the physical injury, and for loss of remittitur. income, household services and personal reality, judge all the did in the course medical expenses. When the returned ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍analysis of his make his own cаlculation million, general a verdict for the judge $3.3 care, shrug future off other nursing that assumed had included its substantial rise to giving general items un verdict the full requested by coun- liquidated damages that are of incapable sel for future care. Consequently, precise capable generat calculation but analysis he made an of the evidence bearing award, ing unjustifiably a substantial upon future then only, care calcu- upon consequence. intrude as a what lated he deemed to be a reasonable instance, it For has been estimated that $228,082.85, award for this damage, item of suffering awards for account for and ordered remittitur consistent with his personal injury litiga 72% perception of the allocation for this jury’s Laughlin tion. & Corp. Jones Steel category within the general verdict. As far Pfeifer,-U.S.-, 2541, 103 S.Ct. determine, however, Ias can there is no (1983). per- n. 76 L.Ed.2d 768 If this in the support record for the trial court’s centage applied Rodgers’ had been ver- arbitrary and unfoundеd assumption dict, the judge’s calculations for a maxi- $2,215,320.68 the jury allocated for future mum allowable award would have nursing care. approximated verdict: closely jury’s It is belief my judge prop failed suffering, anguish, mental Pain, physical erly apply the applicable legal standard. ($3.3 injury .72) million x $2,376,000 First, he failed to consider verdict Loss of income, etc. services, personal argument final Second, per request 580,465 as a whole. because he isolated one Future care as calculated item damage to the exclusion of the 228,082 the trial court others, there is simply way no it can Total $3,184,547 fairly be said that judge made rea judgment concerning soned the maximum Rodgers a Admittedly, limit of a range reasonable within which sum; however, generosity of substantial its have returned verdict justify award does not alone trial jury’s comprising categories general the several jury’s court interference. The verdict must Absolutely submitted to it. no con life light be examined real *8 sideration was given possibility married, Rodgers, working, family facts: have jury may man, more year expectancy, with a 30.5 life suf- for mental pain, suffering, anguish, person devastating injury fered a and has been al injury, categories quadriplegic. one of the other When permanent rendered requested loss than had been counsel. a whole and in the verdict is considered as evidence, Of I can- necessity, totality these items of had to view of the gross- was “so Rodgers’ award say the conscience as to shock ly excessive court.”

[the] above, I reasons stated

Thus Mr. award for

would reinstate JURY PROCEEDINGS.

In re GRAND

Appeal of Robert E. YOUNG.

No. 83-1106. Appeals, Court of

United States

Eighth Circuit. June 1983.

Submitted 26, 1983. Aug.

Decided En Banc Rehearing

Rehearing and 27,1983. Oct.

Denied Webb, Atty., Gary An-

Rodney U.S. S. N.D., near, Atty., Fargo, Asst. First U.S. for appellee. Racek, Knox, Fargo, L.

Frank T. Frank N.D., appellant.