Chris LeBlue, et al v. Thomas Gaske

Filing

UNPUBLISHED OPINION FILED. [10-40162 Affirmed ] Judge: WED , Judge: JES , Judge: LHS Mandate pull date is 01/19/2011 [10-40162]

Chris LeBlue, et al v. Thomas Gaske Case: 10-40162

Document: 00511335467 Page: 1 Date Filed: 12/29/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 29, 2010 N o . 10-40162 S u m m a r y Calendar Lyle W. Cayce Clerk

A L E S I A DIETZ, P la in t iff - Appellant v. T H O M A S A. GARSKE, D e fe n d a n t - Appellee

A p p e a l from the United States District Court for the Eastern District of Texas U S D C No. 1:07-CV-900

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* A le s ia Dietz appeals from the denial of her motion for a new trial following a jury award of damages. She contends the district court erred in denying her m o t io n because the jury's award was impermissibly inconsistent and against the g r e a t weight of the evidence. We AFFIRM. I n May 2006, Dietz was injured along an interstate highway in east Texas w h e n her vehicle was struck from the rear by a vehicle driven by Thomas

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

*

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Case: 10-40162 Document: 00511335467 Page: 2 Date Filed: 12/29/2010

No. 10-40162 G a r s k e . Dietz filed a negligence action against Garske in Texas state court. Garske removed the case based on diversity to the United States District Court. After a jury trial, Dietz was awarded damages for past and future medical e x p e n s e s , past physical pain and mental anguish, and past physical impairment. The jury awarded no damages for future physical pain, future mental anguish, fu t u r e physical impairment, and future disfigurement. Dietz's motion for a new t r ia l was denied. After entry of judgment on the verdict, Dietz appealed. A motion for a new trial challenging the weight of the evidence should be d e n ie d "unless the verdict is against the great [weight], not merely the p r e p o n d e r a n c e , of the evidence." Jones v. Wal-Mart Stores, Inc., 870 F.2d 982, 9 8 6 (5th Cir. 1989). We review the district court's decision denying a motion for a new trial for abuse of discretion. Id. "The district court abuses its discretion . . . only when there is an absolute absence of evidence to support the jury's v e r d ic t." Seidman v. American Airlines, Inc., 923 F.2d 1134, 1140 (5th Cir. 1991) (c it a t io n omitted). The reviewing court gives somewhat more deference to the d is t r ic t court's ruling where, as here, "the district court has denied the new trial m o t io n . . . and left the jury's determinations undisturbed." Dawson v. Wal-Mart S to r e s , Inc., 978 F.2d 205, 208 (5th Cir. 1992) (citations omitted). I n diversity cases, state law governs the type of evidence necessary to s u p p o r t the verdict, but the sufficiency of the evidence is governed by a federal s t a n d a r d . Jones, 870 F.2d at 986. The federal standard requires that we view t h e evidence and all reasonable inferences in the light most favorable to the ju r y 's determination, disregarding its verdict only if the evidence is so strong t h a t a reasonable person could not have found as the jury did. Id. at 987. "Under Texas law, once liability is established, a jury must award some a m o u n t for each element of damages that is objectively proved." Jackson v. T a y lo r , 912 F.2d 795, 797 (5th Cir. 1990). Dietz argues that the jury's failure to a w a r d her damages for future pain, future mental anguish, and future 2

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No. 10-40162 im p a ir m e n t requires a new trial, as both plaintiff and defendant's medical e x p e r t s testified that she may continue to have problems with her neck. Dietz d id not brief and thus has waived any argument as to the jury's failure to award h e r damages for future disfigurement. Yohey v. Collins, 985 F.2d 222, 224-25 (5 t h Cir. 1993). Dietz was diagnosed with whiplash the day after her automobile accident. A month later, Dietz visited Dr. Clark Gunderson, an orthopedic surgeon, who d ia g n o s e d her with a cervical and lumbar strain, prescribed medications and p h y s ic a l therapy, and recommended she return in one month. She did not a t t e n d physical therapy and came back two months later complaining of c o n t in u e d neck and back problems. She also complained of numbness and t in g lin g in her hand. Based on these subjective complaints, Dr. Gunderson r e fille d Dietz's prescriptions, advised her to attend physical therapy, and r e c o m m e n d e d she return in a month. S ix t e e n months passed before Dietz sought treatment for neck or back p a in . Dietz visited Dr. Gunderson in December 2007. He refilled her

p r e s c r ip t io n s and ordered physical therapy. Dietz attended six physical therapy s e s s io n s . She returned to Dr. Gunderson in February 2008, and he prescribed a d d it io n a l medications and ordered an MRI of her cervical and lumbar spine. The radiologist's report indicated that Dietz had a small disc herniation at C5C 6 and a bulging disc at C4-C5 and C6-C7. Dr. Gunderson reviewed only the radiology report, not the MRI films. He r e c o m m e n d e d a cervical discogram, a procedure where dye is injected into the s p i n e to locate which disc is causing discomfort. Nineteen months passed and n o discogram was conducted. Dietz saw Dr. Gunderson once in this extended p e r io d . Although Dietz saw other physicians during this time for unrelated m e d ic a l concerns, she did not report having any injuries, neck pain, tingling, or n um bn ess. 3

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No. 10-40162 D r . Gunderson testified at trial that Dietz has a small ruptured disc and t h a t she will live with pain without surgery. He admitted on cross-examination, t h o u g h , that the bulge is not large and that he did not know whether the MRI a c t u a lly showed nerve root impingement. He testified that he had not

r e c o m m e n d e d surgery and could not testify that Dietz needs surgery until a d is c o g r a m is conducted. Dr. Gunderson conceded that he mainly relied on D ie t z 's subjective complaints in formulating his diagnosis. He also admitted t h a t Dietz's failure to attend physical therapy as prescribed may have c o n t r ib u t e d to her problem. G a r s k e requested an independent medical examination. Dr. David

E d e ls t e in , a board-certified orthopedic surgeon, examined Dietz and viewed the M R I films. He disagreed with the radiologist's findings that Dietz had any a b n o r m a lit y at levels C4-C5 and C6-C7. He concluded that her only abnormality is a mild bulge at C5-C6, but the disc is not herniated or encroaching upon the s p in a l canal. Dr. Edelstein stated that Dietz's subjective complaints were He concluded that

in c o n s is t e n t with the objective findings from the MRI.

s u r g e r y was not necessary because any potential future pain could be controlled w it h very minimal follow-up care, including medications, exercise, or physical t h e r a p y . Dr. Edelstein expected Dietz to have a normal life with no restrictions o n her daily activities. D ie t z testified that neck pain and hand numbness and tingling prevented h e r from holding her infant for long periods of time and from doing other a c t iv it ie s , such as cleaning her house. The jury also was presented evidence that c o n t r a d ic t s that Dietz's activities were impaired. Dietz acknowledged her In an

in ju r ie s have not prevented her from working outside the home.

e m p lo y m e n t application dated July 9, 2007, Dietz marked that no doctor had e v e r restricted her activities, she had never been assessed any percentage of d is a b ilit y to any part of her body, she was not presently under medical care or 4

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No. 10-40162 t a k in g any medication, and she was not aware of any condition that might im p a ir her ability to work. In a pre-employment physical conducted that same d a y , the examining doctor reported that her head, neck, and extremities were n o rm a l. D e it z relies on two decisions of this court to support her arguments that t h e district court erred. The later of the two precedents is distinguishable b e c a u s e it was a Jones Act negligence claim. Brown v. Parker Drilling Offshore C o r p ., 410 F.3d 166, 178-79 (5th Cir. 2005). Regardless, the relevant part of B r o w n quoted language from the earlier decision that Deitz also relies upon, so w e consider that language in discussing the first case. Id. at 179 n.11 (quoting Y a r b r o u g h v. Sturm, Ruger & Co., 964 F.2d 376, 379 (5th Cir. 1992)). In Yarbrough, the thirteen-year-old plaintiff accidently shot himself in the le g ; the leg later was amputated. Yarbrough, 964 F.2d at 377-78. He brought a product liability suit under Texas law against the firearm's manufacturer. Although the jury awarded damages for past and future medical expenses and fo r past disfigurement, no damages were awarded for future disfigurement or for p h y s ic a l impairment, mental anguish, or pain and suffering. Id. at 378. T h e district court held that this award was "inconceivable" and "absolutely u n b e lie v a b le " because of the inconsistency between the jury finding of liability a n d the damages award. Id. The district court denied the defendant's motion fo r a mistrial, accepted the verdict as to liability, and empaneled another jury t o determine damages. Id. We agreed it was inconceivable the injured boy w o u ld be entitled to damages for past disfigurement but not for future d is fig u r e m e n t ; his lost leg would not grow back. Id. at 379. A lost limb n e c e s s a r ily entails past and future physical impairment, and thus the jury s h o u ld have awarded those damages. Id. We also found that the defendant h a r d ly contested the claims of damages, and instead focused on showing there w a s no liability. Id. These circumstances made it clear that the verdict was 5

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No. 10-40162 e it h e r simply irrational or based on an improper compromise; the facts of the c a s e support no other explanation for the outcome. Id. at 379-80. B y contrast, here there are other explanations. The jury's decision to a w a r d Dietz future medical expenses does not conflict with its refusal to award d a m a g e s for future pain, mental anguish, and impairment. Dr. Edelstein

t e s t ifie d that any potential pain could be controlled with minimal follow-up care, in c lu d in g medications, exercise, or physical therapy. Thus, there was evidence o n which jurors could rely that Dietz would not have future pain. This record s u p p o r t s that jurors might reasonably have concluded that the need for future m e d ic a l care would not equate to a likelihood of future pain, making consistent t h e award for medical care without an award for pain. The jury's award for past im p a ir m e n t but not future impairment also is not conflicting because there was e v id e n c e Dietz no longer was impaired. W e conclude that the jury verdict was not counter to the great weight of t h e evidence. The district court did not abuse its discretion in denying the m o t io n for a new trial. A F F IR M E D .

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