Opinion
Civil Action No. 4:18-cv-00268-P
2020-11-17
Alfonso PARRA et al., Plaintiffs, v. INTERSTATE EXPRESS, INC. et al., Defendants.
W. Kelly Puls, Juliana Kristine Morris, Puls Haney Lyster PLLC, Christopher G. Lyster, Lyster & Associates, PLLC, Mark A. Haney, The Haney Firm, Fort Worth, TX, Todd Michael Hurd, Todd Hurd & Associates, Burleson, TX, for Plaintiffs. Darrell G. Adkerson, Jeffrey D. Antonson, Adkerson Hauder & Bezney PC, Dallas, TX, for Defendants.
W. Kelly Puls, Juliana Kristine Morris, Puls Haney Lyster PLLC, Christopher G. Lyster, Lyster & Associates, PLLC, Mark A. Haney, The Haney Firm, Fort Worth, TX, Todd Michael Hurd, Todd Hurd & Associates, Burleson, TX, for Plaintiffs.
Darrell G. Adkerson, Jeffrey D. Antonson, Adkerson Hauder & Bezney PC, Dallas, TX, for Defendants.
ORDER
Mark T. Pittman, UNITED STATES DISTRICT JUDGE
Plaintiffs, Alfonso Parra and Maria Parra, sued Interstate Express, Inc. ("Interstate") for negligence against Interstate and the driver of Interstate's tractor involved in the incident forming the basis of this lawsuit. Plaintiffs prevailed and a jury awarded Plaintiff Alfonso Parra damages for past and future medical expenses, past and future loss of earning capacity, past and future physical impairment, past and future physical pain and mental anguish; and Plaintiff Maria Parra was awarded past and future loss of household services and past and future loss of consortium. Interstate now moves for a new trial and remittitur.
For the reasons detailed below, the Court finds Interstate's Motion for New Trial and Remittitur (ECF No. 221) should be and is hereby DENIED.
BACKGROUND
This case involves a motor vehicle accident that occurred on or about February 2, 2016. Compl. at ¶ 9. Under diversity jurisdiction, Plaintiff Alfonso Parra brought claims against multiple defendants, including Interstate, the owner of the tractor driven by its employee Roy Lester Douglas, for injuries Mr. Parra allegedly sustained as a result of the accident; and Plaintiff Maria Parra brought claims for loss of consortium and loss of household services against the defendants, including Interstate, for the alleged injuries to her husband. Id. at ¶¶ 6, 19–23.
This case was originally set for trial on December 9, 2019, pursuant to Judge McBryde's initial scheduling order. ECF No. 55. After transfer to the undersigned, the Court granted Parties' Agreed Motion for Continuance and set the trial for May 11, 2020. ECF No. 103. On April 14, 2020, the Court denied Interstate's Motion for Continuance (ECF No. 127), but then continued the trial resetting it for June 22, 2020, pursuant to the United States District Court for the Northern District of Texas Special Order No. 13-11. ECF No. 135. The Court then sua sponte continued the trial on two more occasions, resetting the trial for July 27, 2020, and then for its final setting of August 24, 2020. ECF Nos. 164–165.
The parties appeared at an initial pretrial conference on May 19, 2020, at which the Court admonished the parties about the challenges of a jury trial during a pandemic, but also assured the parties that the trial was going forward. ECF No. 156. The Court then issued at least three orders that, among other things, warned that the parties would be responsible for setting up and testing any technology prior to trial. ECF Nos. 164–166. Then, six days before trial, and after the Court's numerous warnings about technology, Interstate filed a motion seeking to have its expert, Dr. Bob L. Gant ("Dr. Gant"), appear over video, which the Court granted. ECF Nos. 168, 170. Finally, on August 24, 2020, the Court conducted a final pretrial conference at which the Court again cautioned the parties about the use of technology and the challenges of a jury trial in the midst of a pandemic. ECF No. 203.
A jury was selected on August 24, 2020, trial commenced the morning of August 25, 2020, and trial concluded on August 26, 2020. ECF Nos. 204, 206, 207. Dr. Gant began testifying on Interstate's direct examination August 25, 2020. ECF No. 206. As Interstate's counsel began their direct examination, the electronic equipment did not work properly, so the Court recessed early, sent the jury home, and allowed Interstate's counsel the rest of the afternoon to cure the technological issues. Id. When trial resumed the next morning, the electronic equipment failed completely, preventing Plaintiffs' counsel from asking more than a few questions in cross examination. ECF No. 207. Since Interstate's counsel had already conducted a full direct examination of Dr. Gant and since Plaintiffs' counsel was only able to ask a few questions before the technology failed, the Court struck Dr. Gant's testimony but allowed his expert report to go back with the jury. Id. The jury returned a verdict on August 26, 2020, in favor of Plaintiffs, and the Court entered final judgment on September 9, 2020. ECF Nos. 209, 220. On October 7, 2020, Interstate filed a Motion for New Trial and Remittitur. ECF No. 221. Plaintiffs filed their Response on October 23, 2020 (ECF No. 224), and Interstate filed its Reply on October 28, 2020 (ECF No. 226). The Motion for New Trial and Remittitur is now ripe for review.
LEGAL STANDARD
Interstate moves for a new trial and remittitur. Motion, ECF No. 221. Federal Rule of Civil Procedure 59 allows a district court to order a new trial "for any reason for which a new trial has heretofore been granted in an action at law in federal court." FED. R. CIV. P. 59(a)(1)(A). The Fifth Circuit has interpreted this rule to mean a new trial is appropriate where (1) the verdict is against the great weight of the evidence, (2) the amount of damages awarded is excessive, or (3) the trial was unfair or marred by prejudicial error. Seidman v. Am. Airlines, Inc. , 923 F.2d 1134, 1140 (5th Cir. 1991). It has cautioned that "new trials should not be granted on evidentiary grounds unless, at a minimum, the verdict is against the great—not merely the greater—weight of the evidence." Conway v. Chem. Leaman Tank Lines, Inc. , 610 F.2d 360, 363 (5th Cir. 1980) (citing Spurlin v. General Motors Corp. , 528 F.2d 612, 620 (5th Cir. 1976) ).
"In an action based on state law but tried in federal court by reason of diversity of citizenship, a district court must apply a new trial or remittitur standard according to the state's law controlling awards for excessiveness or inadequacy ...." Foradori v. Harris , 523 F.3d 477, 497 (5th Cir. 2008) (citing Gasperini v. Ctr. for Humanities, Inc. , 518 U.S. 415, 426, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) ). The district court's ruling is reviewed by the appellate court for abuse of discretion. Id. at 497–98. Under Texas Rule of Civil Procedure 320, "[n]ew trials may be granted and judgment set aside for good cause, on motion or on the court's own motion on such terms as the court shall direct," and "[n]ew trials may be granted when the damages are manifestly too small or too large." TEX. R. CIV. P. 320.
Texas conducts a more holistic assessment at both stages of the inquiry. Longoria v. Hunter Express, Ltd. , 932 F.3d 360, 365 (5th Cir. 2019) (citing Pope v. Moore , 711 S.W.2d 622, 624 (Tex. 1986) (explaining that factual sufficiency of the evidence is the "sole remittitur standard")). The "Texas review for excessiveness uses the same standard as any factual sufficiency claim." Id. "The question boils down to whether the evidence introduced at trial would allow a reasonable, fair-minded jury to come to the verdict the actual jury reached. Id. (citing Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc. , 434 S.W.3d 142, 159–60 (Tex. 2014) ). The jury is afforded strong deference that is overcome only when the jury's damage award is "so factually insufficient or so against the great weight and preponderance of the evidence as to be manifestly unjust." Id. (quoting Pope , 711 S.W.2d at 624 (citation omitted)).
ANALYSIS
A. The Court did not err in striking Dr. Gant's testimony after the Court provided counsel numerous opportunities to set up and test the electronic equipment necessary for a remote witness.
Interstate first complains that the Court erred by striking Dr. Gant's testimony. The Court did not abuse its discretion in striking Dr. Gant's testimony because the parties had been warned and admonished on multiple occasions prior to trial that the onus was on the parties to coordinate and configure the technology they would need during trial. Further, the Court gave Interstate's counsel numerous opportunities to set up their technology and to correct any technological errors at the expense of significant delays in the trial.
The parties were forewarned that they bore the responsibility of conducting and configuring their technology during the trial. Prior to trial, the Court made clear that "[a]ny electronic equipment, including but not limited to equipment necessary for any witness appearing virtually, MUST be provided by the parties and set up and tested prior to 9:00 a.m. on August 24, 2020." ECF No. 166. The Court further admonished the parties at the final pretrial hearing on August 24, 2020, that any technology intended to be used by the parties had to be set up and tested by the parties. ECF No. 203.
Interstate argues that the Court abused its discretion by striking Dr. Gant's testimony and claims that the Court could have provided "a little more leeway to attempt to correct the problem ...." Reply at 2. In accordance with this statement and Interstate's Motion, Interstate does not and cannot deny the Court granted Interstate some leeway and opportunities to correct Interstate's technological errors that arose during trial. Indeed, Interstate was given access to the courtroom prior to the commencement of trial to set up and test their electronic equipment. During trial, the Court gave the parties time to set up the electronic equipment for Dr. Gant's virtual testimony. During Dr. Gant's direct examination, Interstate's counsel encountered technological issues involving Dr. Gant's inability to hear counsel's questions, at which time the Court allowed Interstate's counsel time to correct the issues. When Interstate's counsel failed to remedy the issues, the Court permitted Interstate's counsel to kneel by the laptop so that Dr. Gant could better hear the questions. After Dr. Gant's direct examination, the Court recessed and excused the jury early so that Interstate's counsel could have time to find a better means for Plaintiffs' counsel to conduct cross examination.
The Court provided numerous opportunities to Interstate to cure the technological issues involved with Dr. Gant's testimony. In providing further leeway, the Court provided Interstate the opportunity to have Dr. Gant drive from his office in Dallas to testify in person, at which time Interstate's counsel explained that Dr. Gant was actually in Colorado. ECF Nos. 206–207. Therefore, the Court did not abuse its discretion in striking Dr. Gant's testimony. See Williams v. Manitowoc Cranes, L.L.C. , 898 F.3d 607, 615 (5th Cir. 2018) (citations omitted).
The Court recognizes that Interstate's counsel made great efforts during trial to correct the technological issues but was simply unsuccessful. Therefore, nothing about the Court's decision to strike Dr. Gant's testimony should be construed as indicating any lack of diligence on the part of Interstate's counsel. Despite the best efforts of Interstate's counsel and counsel's support staff, the technology (as it so often does) simply did not work properly.
But even if the Court erred, Interstate cannot show it was harmed. Interstate was permitted to conduct a full direct examination of Dr. Gant and Plaintiffs asked only a few questions before Interstate's counsel's electronic equipment failed. Even after Dr. Gant's testimony was stricken, his expert report was admitted essentially without cross examination. In admitting Dr. Gant's report, the jury was able consider his diagnoses regarding a traumatic brain injury despite Interstate's contention to the contrary. If a party was prejudiced from this situation, it was not Interstate. Therefore, the Court finds that it did not abuse its discretion in striking Dr. Gant's testimony. Accordingly, Interstate's Motion is DENIED as to this claim.
B. Plaintiffs' counsel's closing argument did not irreparably prejudice the jury's verdict.
A motion for new trial premised on counsel's improper arguments should only be granted when "improper closing argument irreparably prejudices a jury verdict." Baisden v. I'm Ready Prods., Inc. , 693 F.3d 491, 509 (5th Cir. 2012) (quoting Nissho–Iwai Co., Ltd. v. Occidental Crude Sales, Inc. , 848 F.2d 613, 619 (5th Cir. 1988) ). "To justify a reversal based on improper comments of counsel, the conduct must be such as to gravely impair the calm and dispassionate consideration of the case by the jury." Dixon v. Int'l Harvester Co. , 754 F.2d 573, 585–86 (5th Cir. 1985) (citation omitted). The grant or denial of a new trial is not reversible unless the district court abused its discretion. Baisden , 693 F.3d at 509. The Fifth Circuit has recognized that the district court "is in a far better position than an appellate court to evaluate the prejudice flowing from counsel's improper comments during trial and to determine the most effective response to ensure a fair trial." Johnson v. Ford Motor Co. , 988 F.2d 573, 582 (5th Cir. 1993) (quoting Mills v. Beech Aircraft Corp., Inc. , 886 F.2d 758, 765 (5th Cir. 1989) ).
Interstate contends that Plaintiffs' counsel improperly commented on (1) the failure of Interstate's corporate representative Alexander Zhelezoglo ("Zhelezoglo") to testify, and (2) the age of tortfeasor driver Roy Lester Douglas ("Douglas"). As to the corporate representative comment, the Court granted Interstate's Emergency Motion for Leave so that Zhelezoglo could appear virtually for his testimony. ECF No. 179. The Court granted this motion though the Court had already warned Interstate of the technological limitations of the courtroom. As noted in Plaintiffs' Response, Interstate failed to timely object to this comment and could have attempted to mitigate the possibility of this situation by submitting the testimony of Zhelezoglo through his deposition. Response at 11–12.
Further, Interstate argues that Plaintiffs' counsel improperly commented on the age of Douglas, the driver of Interstate's vehicle at the time of the accident. Interstate claims that this comment was not only inflammatory and discriminatory, but that it also unfairly surprised Interstate. Motion at 11. The Court finds Interstate's argument of surprise meritless, as Plaintiffs noted in their Response that evidence stating Douglas's age was already pre-admitted by agreement of the parties in the crash report. Response at 13; Trial Exhibit No. 1. Further, Plaintiffs' counsel elicited Douglas's age from Dr. Heitzman during cross-examination. The jury was well aware of Douglas's age before Plaintiffs' counsel's closing arguments. The Court finds that allowing these comments did not irreparably prejudice the jury's verdict.
Therefore, the Court concludes that Interstate's Motion for New Trial based on Plaintiffs' counsel's alleged improper closing arguments should be and is hereby DENIED.
C. The jury's verdict was not against the great weight of the evidence.
Interstate further moves for a new trial or, alternatively, remittitur on the finding of Plaintiffs' damages, specifically as to future damages and non-economic damages, as against the great weight and preponderance of the evidence. Motion at 15.
During trial, the jury heard testimony from both plaintiffs, Plaintiffs' two daughters, both parties' designated neuropsychologist experts, and were presented with Dr. Gant's expert report, which was among the parties' additional voluminous exhibits that went back with the jury during deliberations. Having considered Interstate's Motion, the Court finds that the jury's verdict is not contrary to the great weight of the evidence. Accordingly, Interstate's Motion as to its excessiveness claims is DENIED.
D. Interstate was not precluded from requesting continuances.
Interstate claims the Court preemptively denied any and all continuances, however, this is not so. On April 23, 2020, the Court issued a continuance Order stating that "[b]arring another Special Order due to exigent circumstances, no further continuances to trial will be granted." ECF No. 135. This Order did not preclude Interstate from seeking continuances from the Court. Further, as Plaintiffs acknowledged in their Response, after the Court issued this Order, the Court then sua sponte continued the trial on two separate occasions. Response at 23; ECF Nos. 164–165. First, the Court continued the trial from June 22, 2020, to July 27, 2020. ECF No. 164. Then, the Court continued the trial from July 27, 2020, to August 24, 2020, citing a recent spike in COVID-19 cases in DFW. ECF No. 165. The Court made numerous efforts to ensure the safety of the parties while promoting judicial efficiency for this case and the hundreds of other cases pending on the Court's docket at the time of trial. Accordingly, Interstate's Motion as to its claim of preemptive denial of future continuances is DENIED.
CONCLUSION
For the foregoing reasons, the Court finds that Interstate's Motion for New Trial and Remittitur (ECF No. 221) should be and is hereby DENIED.
SO ORDERED on this 17th day of November, 2020.