*3 * BRIGHT, Before 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 between 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 Rule 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-lane 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 head 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. 425 F.2d 892 Cir. 508-09. [Koufakis] 1970); Sears, Co., Klotz v. & Roebuck B. THE DISTRICT COURT’S ORDER (7 1959). quoted Cir. While the argument, standing alone, might not be court, The district in considering the mo- trial, improper so to a as warrant new the trial, tion for new Rodgers found that had intemperate it to Court considers so as. not been asked a to prior trial awarding have to to jury contributed the which would have elicited prior felony Rodgers Ted sum grossly exceeding conviction, that Rodgers granted had been reasonably supported by that the evi- pardon rehabilitation, on the basis dence for care. future attendant that evidence of that probably conviction Rodgers Corp., (W.D. 79-1038 Tosco No. could not be introduced at a new trial. Ark., Opinion filed Aug. Memorandum Accordingly, it found a new trial on 1980). the basis of that conviction was not war- ranted. The trial any court also found that applied The district court then the stan- alleged Rodgers’ part misconduct on had no governing dards consideration of motions appreciable impact on the jury, and that the for new trial in its extensive review of the jury’s finding as to not liability against Rodgers’ medical evidence as to require- the great weight of the evidence. Our re- ments attendant care. The found it is be- analysis nevertheless flawed contention that close plaintiffs’ professional the differ- require

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 further 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 these 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 awarded 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 etc. 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 of 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 trial 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 travel 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 troubled 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 664 F.2d at 1089. In addi- ap- preme which have reduced Court tion, although remaining cited by cases loss of reduction of awards for proved the appellants on do the sub- this issue involve Lowe, v. 274 Ark. In Morrison consortium. Arkansas, stantive law of none of these 358, (1981), an order 625 452 S.W.2d cases were Court Supreme decisions of con- damages for loss of remittitur reduced of Arkansas. $30,000.00. $100,000.00 to sortium from year, that court reduced And the same sum, cited, appellants In have not $50,000.00for loss of remittitur an award of found, any and we have not decisions $25,000.00. v. Scheptmann consortium to Supreme Court of Arkansas which would Thorn, 70, (1981). 291 272 Ark. 612 S.W.2d indicate the district court's order granting remittitur was clear abuse its cases, these loss of consortium In each of discretion. of less periods had been limited to time Moreover, than we note year. one court, determining The district was available to neither of these decisions Supreme amount of Court that it entered the district court the time sustain, of Arkansas would said: addition, our research indi- order. has, Supreme The Arkansas Court cates to 1981 had the prior that at no time occasions, by way some acted to reduce Supreme sustained an Arkansas Court loss awards for of consortium. $15,000.00 award loss of greater than Jansson, 410, Scott v. 257 Ark. 516 S.W.2d Adams, v. 259 Ark. consortium. See Jordan (1974); 589 Transporta- Missouri Pacific 407, (1976) (award of 533 S.W.2d 210 Miller, 351, tion v. 227 Co. Ark. 299 Jansson, v. excessive); not $600.00 Scott (1957); S.W.2d 41 Arkansas Louisiana 410, (1974); Ark. 516 S.W.2d 589 Arkansas Strickland, v. Gas Co. 238 Ark. Co. v. 256 Ark. Morgan, Louisiana Gas S.W.2d (1974) not ($5,000.00 506 S.W.2d 560 award In view of the circumstances excessive); Frisby, Blissett Ark. case, the virtual quadriplegia of Ted (1970) ($6,768.00 not 458 S.W.2d 735 award Rodgers, virtually complete excessive); Arkansas Louisiana Gas Co. consortium, normal marital the exceed- Strickland, 238 Ark. S.W.2d ingly heavy burden of constant attendant (1964) ($2,500.00 award reduced care that she carried through has the date Stewart, Bailey v. $1,000.00); 236 Ark. trial, and the continuing attention ($1,000.00 (Ark.1963) 364 S.W.2d 662 award which give she must to her husband dur- excessive); Transporta- Pacific Missouri ing his remaining years, the Court con- Miller, tion Co. v. 227 Ark. 299 S.W.2d cludes that the Supreme Court of Arkan- (Ark.1957) ($25,000.00 award exces- -held sas would sustain award to Barbara *8 $15,000.00).8 sive Accord- $250,000.00 in the and reduced ingly, not that the compensate damages prepared her for those we are hold com- bined under enter- the term of loss of consorti- district court abused its discretion in order, um. This is suggested ing light the of the cases especially Scott 8. Miller is the case found we that the which involved nevertheless observe amount al- complete loss of consortium over an extended lowed in instant over times case is sixteen period (twenty-seven years). Although of time that allowed in Miller. twenty years ago, that case decided some

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 partial 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 530 F.2d at 130. TENTIONS bar, possible In the case it is Although our point actions to this jury’s that reduction of the disposed effectively appeal, of this we ob- belief,that damages solely was due to its serve allegations that the er- remaining damages requested justi the total were not ror concern actions of district is, however, possible fied. It also that the are likely repeated upon to be A remand. requested damages were not awarded be brief appellants’ remaining discussion of portion cause the assessed some of the appropriate contentions therefore in the circumstances, judicial Rodgers. fault to In these it economy. interests of liability is not clear that issues A. NEW TRIAL ON ALL ISSUES are damages so distinct as to warrant a new partial trial.10 we find Consequently, Appellants first assert that order no abuse discretion trial court’s new trial should have been limited to dam- to limit failure the new trial to the issue of ages only, liability issues already as had only. damages however, been decided. This argument, overlooks fact a returned general verdict it wherein awarded $3.3 B. THE OF TRIAL ACTIONS THE Rodgers’ million of $3.8 million JUDGE damages.9 (1) Appellants’ next contentions are Co., In Champ- Gasoline Products Inc. v. disqualified judge district should have lin Refining 51 S.Ct. U.S, ordering (2) after a himself new_trial; (1931), Supreme L.Ed. 1188 Court district judge improperly allowed “[wjhere held permits a practice himself to become a witness at the second

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 51 S.Ct. at 515. The Court further held (1) judge’s taking where the The in his questions liability position so are interwoven that can- as they opinion credibility memorandum witnesses; be submitted independently without figure actually figure $3.8 9. injured million consortium is to that derivative jury by Rodgers. spouse, submitted to so that a to the in- adverse spouse jured spouse’s acts as bar to the other Lopez Estate, 249 action. v. Waldrum Ark. Rodgers’ follows that a new trial on Mrs. (1970), required 460 S.W.2d and cases cited claim for loss of consortium was Arkansas, spouse’s well. therein. action for loss of *9 1300 impartiality lack of for degree Disqualification to (2) taking position a His in Nothing a basis. reasonable required

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 prejudice 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 66 L.Ed.2d 216 as amended in proceeding.. Martorano, Sess., party, justice, judge, his magistrate in himself in 320 ” v. an objective designed denied, impartiali- Frechette, 1609, Blizard saying, evidentia- reprinted amended (D.Mass. himself bias impar 6351, H.R. pro- per- 620 .. or v. judicial rulings made qualify cordingly, 325 Inc., 6355. rano, ^[1974] Maret v. United Blizard Blizard quoting Winston, given case the most would be F.Supp. would decided it. disqualification motions shopping,’ wise, Cir. further action successfully ate adverse States If litigation. (E.D.Mo.1971). a judicial partiality. 620 F.2d at 1976); Honneus v. United judge U.S.Code reason, “there himself v. v. never be Lazofsky F.Supp. v. rulings in themselves do while “a 164, Thus, Schwartz, Fielding, Fielding, opened a who practice would See United States be then solely 166 condemned.” should be self-evident on occasion Cong. & Ad.News able rules a States, 221, labelled v. Sommerset judge’s participation 919; (D.Mass.1977). judge the Court of be almost no 454 454 535 during the course on the basis (E.D.N.Y.1975). to remand which has been against 223 a return to judge who 332 United States F.2d See, F.Supp. F.Supp. should not prejudiced and the form F.Supp. 160, e.g., a States, 425 Cir. a case for party v. Bus the basis Appeals limit to initially at at 165 Marto United Other- ‘judge 1980); 6351, prior way 321; 324, cre- Ac- dis can (2d v. Fielding, bias,” Blizard v. finding of a assessing the reasonableness [I]n F.Supp. judge presumed judge to his challenge impartiality, each party seeking disquali- and the impartial, alert to possibility must be avoid bears the substantial burden fication impartiality those who would his Freeman, proving otherwise. are State seeking in fact to avoid the conse- case, (D.Ida.1979). In this quences F.Supp. expected of his adverse decision. *10 may regard, such a burden be met where the 54 L.Ed.2d 128 In this party can to be complaining point specific thought it generally jury’s is rea judge havior on the which knowledge receiving that a plaintiff in- has, fact, sonably suggests that there benefits, surance or that a defendant been some judge friction between insurance, carrying liability might serve to the complaining party. disagreement Mere increase, respectively, decrease or enough. over the state of the is not law of jury. amount awarded by Conforte, 457 F.Supp. United States However, it is that the existence established 652 (D.Nev.1978), and cases cited there liability of insurance be used some in, aff’d, Cir.), (9th 624 F.2d 869 cert. de purposes, showing possible such as bias nied, 449 U.S. 101 S.Ct. n of a witness. Id. (1980); L.Ed.2d 470 v. Fielding, Blizard 321-22; States, F.Supp. at Maret United event, any we fail see any to F.Supp. 325-26. to a prejudice jurors where the are Appellants have four cited statements defendant, that the company, aware oil during made the trial judge the course we carries insurance. hold Accordingly, which, they assert, the second trial indi- any relating error to this issue was cate that the trial judge biased. We harmless. carefully reviewed these statements in made, the context in which they were III. CONCLUSION we that appellants’ argument conclude noted, As we have is not court these statements bias indicate borders precluded finding from a total allowable the frivolous. greater than, to, equal award in an amount regard appellants’ argu With to previous or less than that allowed in its ment that the trial as a judge acted witness we no express opinion order and as what in violation of Rule 605 the Federal the award should be. Evidence, Rules of it is sufficient to note in they any specific judgment dismissing complaint have not cited stances judge wherein trial acted as a and that or new trial ordering remittitur Rather, witness. appellants contend are vacated and the cause is remanded “pursued the trial judge a course of conduct proceedings further consistent with this during overstepped the trial that the line opinion. permissible liberties.” It is difficult to see assertion, how more, such a bald without GIBSON, Judge, R. Circuit dis- JOHN could ever justify reversal. senting. I from respectfully dissent the decision C. INSURANCE the majority to remand this ease to the Appellants’ final argument is that district court for further consideration trial court erred in allowing Tosco to inform I damages. issue would affirm the the jury that was covered the Hart- judgment of the district court. ford Insurance Company. was originally presented to the trial The district court concluded that the ver- Limine, context of a Motion in excessive, dict clearly against great that court found that Tosco intended call evidence, weight of supported by as a adjuster witness an insurance who specifically substantial evidence. found worked for Hartford. jury gave substantial consideration grossly exaggerated claim for nurs-

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 all 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.