Opinion
CIVIL ACTION NO. 99-487 c/w 99-2567, SECTION EBC
January 9, 2002
ORDER AND REASONS
Before the Court are the defendants, National Railroad Passenger Corp. and CSX ("Train"), who request the Court to grant their Motion for a New Trial and Alternatively for Remittitur. For the following reasons, the Motion for a New Trial is DENIED and the Motion for Remittitur is GRANTED.
BACKGROUND
This suit arose out of an accident involving an Amtrak train and an eighteen-wheeler driven by Derek Crayton ("Crayton") at the Industrial Railway crossing in New Orleans, Louisiana. The conductor of the train, Michael Martin ("Martin"), filed suit alleging FELA and Louisiana state law claims. Crayton filed state law claims against Amtrak and CSX. On September 5, 2001, after a six day jury trial, a verdict was returned awarding Crayton $1,560,156 for past and future lost wages and fringe benefits and $1 million in general damages for pain and suffering. Additionally, Crayton was awarded $40,000 for future medical expenses. Martin was awarded $532,480 in past and future lost wages and fringe benefits and $1 million for pain and suffering.
Amtrak and CSX have now filed a motion for new trial or alternatively for remittitur on several grounds, all of which will be addressed below.
LAW AND ANALYSIS
A district court enjoys considerable discretion in granting or denying a motion for a new trial under Rule 59(e). See Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 355 (5th Cir. 1993). Courts typically consider four factors in exercising that discretion: (1) whether the judgment was based upon a manifest error of fact or law; (2) whether the movant presents newly discovered or previously unavailable evidence; (3) whether amendment is necessary to prevent manifest injustice; and (4) whether an intervening change in controlling law has occurred. See Franco v. Maraldo, 2000 WL 288378, at *2 (E.D.La. March 16, 2000); Campbell v. St. Tammany Parish Sch. Bd., 1999 WL 777720, at *2 (E.D.La. Sept. 29, 1999);Fields v. Pool Offshore. Inc., 1998 WL 43217, at *2 (E.D.La. Feb. 3, 1998). In addition, Courts must attempt to strike the proper balance between two competing imperatives: (1) finality, and (2) the need to render just decisions on the basis of all the facts. See Edward H. Bohlin, 6 F.3d at 355. In general, "reconsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly . . .,"Pacific Ins. Co. v. American Nat. Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998), cert. denied 525 U.S. 1104 (1999) (quoting 11 Charles A. Wright, Arthur R. Miller Mary Kay Kane, Federal Practice and Procedure § 2810.1, at 124 (2d ed. 1995)), since "courts and litigants cannot be repeatedly called upon to backtrack through the paths of litigation which are often laced with close questions." Sussman v. Salem. Saxon Nielsen, 153 F.R.D. 689, 694 (M.D.Fla. 1994).
1. Title 23 U.S.C. § 409
Amtrak and CSX argue that expert testimony provided by Transwood's accident reconstruction and railroad safety expert James Loumiet ("Loumiet") referenced information which is inadmissible under Title 23 U.S.C. § 409. During trial, Transwood asked Loumiet a line of questions involving the number of accidents in the past ten years at the Industrial Parkway railway crossing compared to other crossings throughout the nation. The number of accidents at the Industrial Parkway crossing was provided to Transwood by CSX through its answers to interrogatories. Amtrak and CSX voiced their concerns over the possibility of admitting information prohibited by Section 409. The Court took a brief recess so that the parties could resolve the issue. Transwood then asked Loumiet "based upon CSX's information contained in its answers to interrogatories; how did this railroad crossing compare to crossings throughout the United States?" Counsel for Amtrak and CSX immediately objected saying that there was no predicate for such a comparison. The Court instruct Loumiet to lay a predicate and Loumiet testified that he based his comparison on a "number of sources that are generally published by the FRA. They publish annual accident statistics relating to grade crossing throughout the United States." Amtrak and CSX did not object after the explanation as to the basis of Loumiet's comparison.
Amtrak and CSX's Motion, Exhibit A at 7.
Id. at 8.
Amtrak and CSX now claim that the information on which Loumiet's comparison was based concluding that the accident rate at the Industrial Parkway crossing was 33 times greater than the national average was prohibited by Section 409. Crayton and Transwood argue that Amtrak and CSX waived any objection to the admissibility of the testimony. They assert that the protection of Section 409 is a privilege which can be and was waived by Amtrak and CSX. Powers v. CSX Transportation. Inc., 2001 WL 1006773 (S.D.Ala.). Amtrak and CSX argue that the only reason they did not object to Loumiet's comparison was because of the inaccurate predicate laid by Loumiet at trial. After a review of the record, the Court finds that Amtrak and CSX waived their objection by allowing the testimony to continue. Had Amtrak and CSX been concerned about Loumiet discussing prohibited testimony, the Court would have allowed cross-examination as to the predicate. Even if the objection were not waived, the use of impermissible testimony by Loumiet was harmless error.
Amtrak and CSX argue that a new trial is warranted because the inadmissible evidence came from a key witness. In fact, Loumiet was the only witness who testified at trial as to the frequency of accidents at the crossing compared to the national average. Citing the Eighth Circuit's decision in Lusby v. Union Pacific R. Co., 4 F.3d 639 (8th Cir. 1993), Amtrak and CSX assert that it was reversible error for Loumiet to make such a comparison based on inadmissible data. In Lusby, the Court held that it was reversible error for the district court to admit the testimony of Lusby's expert because it was based on records and data used by the Arkansas State Highway and Transportation Department (AHTD) to comply with federal regulations. 4 F.3d at 641. Lusby's expert "testified he could not evaluate the crossing's dangerousness without the information he received exclusively from the AHTD." Id. The Eighth Circuit concluded, that because the expert was a key witness in establishing that the crossing was unusually dangerous, admission of his testimony was reversible error. The Court further held that it was irrelevant that the information could have been derived from permissible sources. The fact was that he used impermissible data and that was the only factor necessary in concluding that it was inadmissible. Id.
Amtrak and CSX's Memorandum at 11.
Transwood and Crayton argue that Lusby is distinguishable from this case and that the Fifth Circuit's decision in Hester v. CSX Transp., Inc., 61 F.3d 382 (5th Cir. 1995)( cert. denied 516 U.S. 1093, 116 S.Ct. 815 (1996)), is more relevant. In Hester, the Court held that the district court did not abuse its discretion in allowing the testimony of Glen Burdick (the same expert used by Amtrak and CSX) which referred to findings of a state sponsored inventory of railroad crossings. 61 F.3d at 387. The Court distinguished Lusby because Burdick's testimony was not exclusively based on prohibited information. In describing his personal inventory of the traffic volume at an accident cite, Burdick "mentioned in passing that the state inventory had determined a slightly greater volume of traffic." Id. The Fifth Circuit found, in Hester, that such an isolated reference was harmless error. While this is not an isolated reference to inadmissible evidence, it does not appear that there is any evidence that Loumiet relied solely on the FRA database for his testimony. Loumiet's testimony was not exclusively based on the comparison of the accidents at Industrial Parkway to the national average. It included his own observations on the conditions existing at the crossing, the vegetation at the crossing, and the FHA and FRA guidelines. There was also testimony from several lay witnesses as to the dangerous nature of the crossing.
Transwood Memorandum at 6.
The Court finds that Amtrak and CSX waived any objection to the admissibility of Loumiet's testimony. Even if the objection was not waived, based on Loumiet's testimony and the legal authority on this issue, a new trial is not warranted.
2. Crayton's Damages a. Lost Wages
"It is well settled that a jury's damages award should not be disturbed unless it is entirely disproportionate to the injury sustained."' Simeon v. T. Smith Son. Inc., 852 F.2d 1421, 1426 (5th Cir. 1988), citing Caldarera v. Eastern Airlines. Inc., 705 F.2d 778, 784 (5th Cir. 1983). Crayton was awarded $1,560,156 in past and future lost wages and lost fringe benefits. Crayton's economic expert, Ernest Huval ("Huval"), testified that the present value of Crayton's lost wages, both past and future, is $260,734 Amtrak and CSX request, if a new trial is not granted, that Crayton's award for lost wages be reduced to $260,734.
Amtrak and CSX's Motion, Exhibit A at 38.
Crayton does not argue that the $260,734 figure is not that which was calculated by Huval. Crayton does assert that the higher award could have been based on the jury's conclusion that Crayton's earning capacity and/or ability to maintain future employment warranted such a figure. However, as Amtrak and CSX point out there was no such evidence produced at trial. Crayton urges that the jury award, while high, was warranted. A jury award for lost wages in the amount of $1.56 million to Crayton was completely unsubstantiated by the evidence. The evidence adduced at trial showed that the total lost past and future wages for Crayton was $260,734. Accordingly, Crayton's award for lost wages is remitted to $260,734.
b. Future Medical Expenses
Amtrak and CSX also argue that the jury award for future medical expenses to Crayton was unwarranted. At trial, the parties stipulated that Crayton's past medical expenses totaled $19,562.10, a figure not produced to the jury. The jury returned a verdict in favor of Crayton for future medical expenses in the amount of $40,000. Crayton's physician, Edmund Landry, testified that a future cervical surgery would be required. However, there was no testimony during trial as to what the cost of that surgery would be. The only mention of it is found in Mr. Becnel's closing argument in which he asked for $20,000 to cover the cost of future medical expenses. Amtrak and CSX argue that the award of $40,000 in future medical expenses should be vacated or reduced to a nominal sum. Crayton maintains that the award was well within the discretion of the jury after evidence was produced at trial that Crayton would need another surgery and follow-up medical visits. There was no evidence produced at trial as to the cost of Crayton's future medical expenses. The jury award of $40,000 was not supported by the evidence and is therefore vacated.
3. $1 Millon General Damage Awards to Martin and Crayton
Both Martin and Crayton were awarded $1 million for physical pain and suffering, mental anguish and physical disability. Amtrak and CSX assert that these awards are not supported by the evidence. A trial judge cannot displace a jury's verdict merely because she disagrees with it or would have found otherwise in a bench trial. See Milone v. Moceri Family, Inc., 847 F.2d 35 (1st Cir. 1988). A new trial is warranted only if the jury verdict is contrary to the clear weight of the evidence, as determined by the court in its exercise of its sound discretion. See Conway v. Chemical Leaman Tank Lines. Inc., 610 F.2d 360 (5th Cir. 1980). The court must determine whether the jury's verdict was "clearly within the universe of possible awards which are supported by the evidence." Brun-Jacobo v. Pan American World Airways. Inc., 847 F.2d 242, 246 (5th Cir. 1988).
a. Crayton
Crayton suffered a neck injury necessitating a cervical fusion one week after the accident. Crayton maintains that his injury was severe and "he sustained an amount of permanent disability that will never return." While Crayton may never be a truck driver again, the evidence at trial was clear that he is capable of doing other work and in fact returned to work six months after his injury. Crayton testified that he presently has a minimal loss of motion in his neck, and there was no testimony that Crayton has suffered "any major short-term or long-term mental or emotional distress or pain issues related to the accident."
Crayton's Memorandum at 13.
Amtrak and CSX's Memorandum at 21.
Amtrak, CSX, and Crayton have cited cases in support of their respective positions. Amtrak and CSX maintain that several Louisiana cases reflect that the highest award for an injury such as that sustained by Crayton should not exceed $200,000. Crayton cites cases where state courts have upheld verdicts of $631,000-650,000 for injuries similar to Crayton's. However, the cases cited by Crayton involved more significant injuries and more severe pain and suffering than that alleged by Crayton. Mayo v. Nissan Motor Corp., 639 So.2d 773 (La.App. 3d Cir. 1993) (upholding $631,000 award to plaintiff who suffered a spinal fracture, ruptured discs, wore hill body brace for 8 months, contracted an infection, underwent fusion surgery, and a subsequent surgery where a rib and a bone from plaintiff's hip were removed to repair her spine.)Adams v. Lammon, 635 So.2d 373 (La.App. 4th Cir. 1992) (upholding award of $650,000 after laminectomy and fusion where plaintiff's condition deteriorated to the point that she was forced to spend 80-90% of her time in bed and was permanently prohibited from engaging in normal activities.)
As a result of the accident, Crayton underwent an anterior cervical fusion at C5-C6. While Crayton did suffer some pain following the surgery, the testimony adduced at trial demonstrated that Crayton has recovered considerably. Additionally, Crayton was able to return to work six months after the surgery. There was testimony that Crayton may have to undergo an additional fusion, and it is clear that Crayton experienced pain and suffering as a result of his injuries. However, a review of the trial testimony and awards in similar cases demonstrate that an award for $1 million is excessive. Accordingly, Crayton's general damage award is remitted to $400,000.
b. Martin
Amtrak and CSX admit that Martin's injuries were more extensive than those suffered by Crayton but asserts that a jury award of $1 million in general damages is not supported by the evidence. The parties stipulated at trial that Martin's medical expenses up to the date of trial totaled $177,569.55. Amtrak and CSX argue that the testimony at trial demonstrated that "Mr. Martin's pain had been reduced by 50% within a year after the surgery and that [his doctor] expected an 80% total reduction in the future." Acknowledging that Martin did suffer from depression, Martin's psychiatrist testified that his depression will decrease as his pain decreases.
Amtrak and CSX's Memorandum at 22.
While the Fifth Circuit has stated that quantifying pain and suffering is not always possible, "the sky is simply not the limit." Simeon, 852 F.2d at 1427. Martin maintains that comparing prior awards is not helpful to the particular damages suffered under these circumstances; however, the Fifth Circuit has used prior awards to "draw a measure of general guidance" to assess the adequacy of an award. Id. While Martin's injuries were greater than Crayton's, a jury award of $1 million is excessive. The Court remits Martin's $1 million general damage award to $800,000.
Accordingly, IT IS ORDERED that Amtrak and CSX's Motion for a New Trial is DENIED. IT IS FURTHER ORDERED that the Motion for Remittitur is GRANTED in the following manner: (1) Crayton's lost wages are reduced to $260,734: (2) Crayton's $40,000 award for future medical expenses is vacated; (3) Crayton's general damage award is reduced to $400,000, and (4) Martin's general damage award is reduced to $800,000.