Howard v. Nucor-Yamato Steel Company et al
OPINION AND ORDER denying Nucor's renewed motion for judgment as a matter of law, or in the alternative, a motion for a new trial, 70 . Signed by Judge J. Leon Holmes on 2/22/2016. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
ROBERT C. HOWARD
No. 3:14CV00202 JLH
NUCOR-YAMATO STEEL COMPANY
OPINION AND ORDER
This is a negligence case. Robert C. Howard was injured at a Nucor-Yamato Steel Company
facility during the process of loading a heavy object onto his flatbed trailer. He alleged that while
he was attempting to position dunnage on the trailer, Nucor’s overhead crane struck the dunnage and
caused him to fall from the trailer. Nucor denied that the crane struck the dunnage and contended
that Howard fell due to his own negligence. A jury found that there was negligence on the part of
Nucor and on the part of Howard, attributing 87 percent of responsibility to Nucor and 13 percent
of responsibility to Howard. Document #48. The jury found that Howard was damaged in the
amount of $331,600. Pursuant to the jury verdict, the Court entered judgment in favor of Howard
against Nucor in the amount of $288,492. Nucor has filed a renewed motion for judgment as a
matter of law and, in the alternative, a motion for a new trial pursuant to Federal Rule of Civil
Procedure 50(b). Document #70. For the following reasons, Nucor’s motion is denied.
Howard was a truck driver. On June 27, 2011, he drove from his home in Paducah,
Kentucky, to the Nucor plant in Blytheville, Arkansas, in order to pick up an arbor, which is a
cylindrical steel object (also called a roll), weighing approximately 38,500 pounds, approximately
16 feet in length and 43 inches in diameter, and which is used in the steel mill to press hot steel.
Howard signed in upon arrival at the plant and learned that he was to back his truck into door eleven
and wait for Nucor employees to bring the arbor to the trailer. Nucor employees Scott Norris and
Joey Summers were responsible for helping Howard load the arbor. Norris operated the crane from
which the arbor was suspended. Howard was responsible for “staging up” before the arbor was
loaded, which means he had to get the dunnage ready. Dunnage–wooden beams or railroad ties–is
used to build cradles for large equipment. Howard testified that his normal procedure involved
Nucor employees moving the load over the trailer, so that he could determine where the load should
be positioned relative to the front and rear ends of the trailer. Then, Nucor employees generally
would move the load over to the side and Howard would arrange his dunnage in two places
perpendicular to the sides of the trailer so that the arbor could rest on the dunnage and be strapped
down securely. After the dunnage was arranged, the load would be moved back to the desired
position, set, and strapped in preparation for transportation.
While positioning his dunnage on the day of the accident, Howard fell from the trailer and
fractured his calcaneus–heel bone. The fracture-line extended from the heel into one of the small
joints in the foot called the subtalar joint, which is loaded with weight each time someone takes a
step. Doctor Frederick Day treated Howard in the emergency room. He testified at trial via video
deposition that the type of injury Howard sustained was a life-changing injury, even with a
successful procedure to restore the joint to its proper alignment. Doctor Day performed such a
procedure–an open reduction internal fixation–on Howard. He used wires, 76 screws, and a plate
to stabilize Howard’s heel bone. Doctor Day provided follow-up treatment to Howard until Howard
decided to transfer his care to Doctor Burton Stodghill, who also testified at trial via video
deposition. Doctor Stodghill reiterated that a calcaneal fracture is a life-changing injury because it
increases the chances of developing subtalar osteoarthritis and testified that he believed to a
reasonable degree of medical certainty that Howard would have problems with subtalar osteoarthritis
and ambulation for the rest of his life. He testified that Doctor Day did a good job of restoring the
heel but that even if you can get a subtalar joint anatomically aligned, the damage is done at the time
of the fracture. Doctor Stodghill eventually performed an operation to remove the plate installed
by Doctor Day because Howard complained of pain around the area of the incision. In January
2014, Doctor Stodghill noted osteoarthritic changes within the subtalar joint. He opined that there
was a high probability that Howard would never experience another pain-free step.
Judgment as a matter of law can be granted only if a reasonable jury would have no legally
sufficient evidentiary basis to find for Howard. Luckert v. Dodge County, 684 F.3d 808, 817 (8th
Cir. 2012) (citing FED. R. CIV. P. 50(a)). “A jury verdict should not be overturned unless there is
a complete absence of facts to allow a jury to reach its conclusion.” Madden v. Lumber One Home
Center, Inc., 745 F.3d 899, 902-03 (8th Cir. 2014) (quoting Wilson v. Brinker Int’l, Inc., 382 F.3d
765, 770 (8th Cir. 2004)). “[J]udgment as a matter of law is proper when the record contains no
proof beyond speculation to support the verdict.” Heating & Air Specialists, Inc. v. Jones, 180 F.3d
923, 932–33 (8th Cir.1999) (internal quotation marks omitted). In considering Nucor’s motion, the
Court must give Howard the benefit of all reasonable inferences, assume as proven all facts that his
evidence tended to show, and assume that all conflicts in the evidence were resolved in his favor.
See Henderson v. Simmons Foods, Inc., 217 F.3d 612, 615 (8th Cir. 2000). The Court must consider
evidence presented in favor of Howard during Nucor’s case in ruling on the renewed motion for
judgment as a matter of law. See, e.g., Auto Transport v. Potter, 197 F.2d 907, 908-09 (8th Cir.
1952) (“The defendants presented a motion for a directed verdict in their favor for insufficiency of
the evidence at the close of all the evidence which was overruled, and on this appeal all evidence
submitted by both the plaintiff and the defendants must be considered in determining whether or not
a submissible case was made.”). See also Potti v. Duramed Pharmaceuticals, Inc., 938 F.2d 641,
645 (6th Cir. 1991); Bill Fitts Auto Sales, Inc. v. Daniels, 325 Ark. 51, 58, 922 S.W.2d 718, 722
(Ark. 1996) (“If, after the denial of a request for a directed verdict or a dismissal, a defendant
introduces evidence which, together with that introduced by the plaintiff, is legally sufficient to
sustain a verdict, he waives his claim of error by the court in refusing to direct a verdict, or dismiss,
at the close of the plaintiff’s case.”); 9B ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE
§ 2534 (3d ed. 2015).
During a three-day trial, both sides presented the jury with extensive testimony along with
several demonstrations to show how Howard fell from his flatbed trailer. Jurors heard three versions
of what happened from Norris, Summers, and Howard.
Norris was an experienced crane operator, but he did not routinely load trailers, did not know
the manner in which Howard planned to proceed, and did not have experience with the type of
loading system Howard planned to use. Nucor policy required Norris to call a meeting to discuss
loading the trailer since it was not a routine load, but he failed to do so.
Norris testified that, using the crane, he first moved the arbor over what he thought was the
center of the trailer. Then, he spoke with Howard to ask where he wanted the arbor to be set.
Howard stood on the ground with Norris and helped him position the arbor relative to the length of
the trailer. Then, Howard climbed up onto the trailer to help Norris position the arbor relative to the
width of the trailer. Norris agreed that it was a violation of Nucor policy to move the arbor while
Howard was on the trailer. According to Norris, the arbor remained suspended some 12 to 18 inches
above the center of the trailer while Howard attempted to move his dunnage in place. Norris testified
that his eyes were on the arbor–which he contends was motionless–and that he did not see Howard
fall. At some point, while Norris was watching the arbor suspended over the trailer, he saw
Howard’s feet moving in his peripheral vision. Norris testified that when he saw Howard’s feet
underneath the arbor, he hit the emergency stop. According to Norris, he hit E-stop even though the
arbor was motionless just to verify that it would not move anymore. One or two seconds later Norris
heard Summers shout but is not sure what he said. Norris realized that Howard fell when Summers
told him so. Then, he went around the trailer to where Howard had fallen. According to Norris,
Howard stated that the crane operator knocked him off. Norris did not object to the statement at the
time, given the circumstances, but testified at trial that he did not knock Howard off the trailer.
Summers testified that when Norris finished positioning the arbor above the trailer, he saw
Howard pick up his dunnage, which was lying at the front of the trailer, and begin to drag it toward
the rear of the trailer. Summers previously thought that Howard would position his dunnage from
the ground by reaching up onto the trailer. Howard needed to position the dunnage perpendicular
to the edge of the trailer, which would require him to place it directly under the suspended arbor.
Summers admitted that it was unsafe to attempt to position the dunnage in such a manner, but he did
not say anything to Howard. When Howard started moving toward the arbor, Summers looked at
Norris for a couple seconds to make sure he hit the E-stop. Summers wanted to verify that the crane
was not moving, in case anything happened. When Summers looked back toward Howard, he saw
Howard’s feet getting closer to the edge as Howard walked sideways down the length of the trailer.
Summers shouted to watch out and then saw Howard’s hands fly up as he stepped off the trailer.
Summers went around to check on Howard, who stated that the crane operator knocked him off.
Summers did not argue because he knew Howard was in pain.
According to Howard, Norris used the crane to position the arbor over the trailer at the
appropriate point relative to the trailer’s length but then moved the arbor over to the side, away from
the trailer, so that Howard could position the dunnage. Then, he grabbed the dunnage, which was
laying at the front of the trailer, held one end at waist-level and dragged it toward the rear of the
trailer. At some point, it began to feel heavy, snapped out of his hands, and he fell backward.
Howard landed on his foot. He pulled himself up, looked over the trailer, saw the arbor suspended
over the dunnage, and then collapsed. Howard testified that he was surprised because the arbor had
been over to the side of the trailer when he began to move the dunnage and he had not seen it move
back to a point above the trailer. According to Howard, Norris came to him and said that he had
fallen from the trailer and Howard replied: “No, I didn’t. The crane operator knocked me off.”
During the trial, Howard pointed to Norris, identifying him as the Nucor employee who suggested
that he fell off the trailer.
Ed Cable–a Nucor supervisor–interviewed Norris and Summers and prepared an incident
report after Howard’s fall in which he recorded that a cause of or a contributing factor to the
accident was that Howard was not wearing a reflective vest. The purpose of a reflective vest is to
be seen clearly. Howard’s not wearing a reflective vest could have contributed to or caused the
accident only if Norris did not see Howard dragging the dunnage down the trailer and therefore
engaged the crane to move the arbor. Cable testified that the consensus among the employees on
the scene at the time of the accident, i.e., Norris and Summers, was that Nucor had knocked Howard
off the trailer.
In short, the most compelling evidence was the immediate reaction of the three persons who
were present at the time of the accident. It is undisputed that Howard’s immediate, unpremeditated,
spontaneous reaction was that the crane operator knocked him off the trailer. Likewise–according
to Cable–Norris and Summers believed immediately after the accident that Nucor had knocked
Howard off the trailer–hence his report that the absence of a reflective vest contributed to or caused
the accident. Based on the immediate perception of every participant in the accident at the time it
occurred, the jury was entitled to believe that movement of the crane knocked Howard off the trailer.
Despite this compelling evidence, Nucor argues that it was impossible for a movement of
the crane to have knocked Howard off the trailer. That argument is based upon estimates by Howard
as to how far he had dragged the dunnage from the front of the trailer toward the back before he fell
off and where the arbor had been located vis-a-vis the front and rear of the trailer. Using those
estimates, Nucor argues that it was impossible for the accident to have occurred in the manner that
Howard said. The jury was not limited to considering Howard’s testimony. Rather, the jury was
entitled to consider all of the evidence, including the admission by Cable that Nucor’s employees
at the scene thought that Nucor had knocked Howard off the trailer. Furthermore, according to
Norris, he saw Howard’s feet under the arbor, hit the emergency stop, and almost immediately
thereafter heard Summers yell in relation to Howard’s fall. Based on that testimony, the jury could
have concluded that Howard had not dragged the dunnage past the arbor when he fell from the
trailer. Rather, based on Norris’ testimony, the jury reasonably could have concluded that Howard
was adjacent to the arbor when he fell. In addition, Howard testified that when he began dragging
the dunnage from the front of the trailer toward the rear, the arbor had been moved to the side and
was no longer above the trailer. According to Norris and Summers, when Howard fell, the arbor was
directly above the center of the trailer. And, according to Howard, after he fell, he pulled himself
up and saw the arbor suspended above the trailer. If all of that testimony is true, as the jury was
entitled to believe, they jury could have inferred that the arbor was moved to the side of the trailer
and then moved back over the trailer while Howard was on the trailer moving his dunnage.
In addition to this evidence, it is undisputed that Nucor’s policy required the crane operator
to call a meeting to discuss how the trailer would be loaded if it was not a routine matter. Norris did
not routinely load trailers and did not know how Howard intended to position his dunnage and load
the arbor. According to Nucor policy, he should have called a meeting. The jury was entitled to
consider that evidence and conclude that Norris’ failure to call a meeting was negligent and that that
negligence was a cause of the accident. Furthermore, Summers testified that he saw that Howard
was in a dangerous position moving the dunnage while the arbor was suspended over the trailer, but
he did not intervene to warn Howard until immediately before the fall. The jury was also entitled
to conclude that Summers’ failure to warn Howard that he was approaching the edge of the trailer
and about to fall was negligence that was a cause of the accident.
In short, substantial evidence supports the jury verdict.
Federal Rule of Civil Procedure 50(b) provides that a party filing a renewed motion for
judgment as a matter of law may include an alternative request for a new trial under Rule 59, which
allows the Court to grant a new trial “for any reason for which a new trial has heretofore been
granted in an action at law in federal court.” A court may grant a new trial pursuant to Rule 59 “if
it is satisfied that a jury verdict will work a substantial injustice if permitted to stand.” Pitts v.
Electro-Static Finishing, Inc., 607 F.2d 799, 804 (8th Cir. 1979). Nucor argues that the Court should
grant a new trial for three reasons: The jury’s verdict was against the weight of the evidence; the
Court erred by failing to give jury instructions proffered by Nucor; and the jury witnessed Howard’s
family members helping him down the stairs during a fire alarm, which was unfairly prejudicial to
Nucor. Document #71 at 2.
Weight of the Evidence
The standard for granting a new trial based on the weight of the evidence is different from
the standard for granting judgment as a matter of law. White v. Pence, 961 F.2d 776, 779-80 (8th
Cir. 1992). The Court has broad discretion to grant a new trial. See id. “In passing on a motion for
a new trial premised on the weight of the evidence, the district court may rely on its own reading of
the evidence and grant a new trial even where substantial evidence exists to support the verdict.”
Dominium Mgmt. Serv., Inc. v. Nationwide Hous. Grp., 195 F.3d 358, 366 (8th Cir. 1999). The
Court may weigh conflicting evidence but need not view that evidence in the light most favorable
to the nonmovant and it may disbelieve witnesses. White, 961 F.2d at 780. However, “the district
court is not ‘free to reweigh the evidence and set aside the jury verdict merely because the jury could
have drawn different inferences or conclusions or because judges feel that other results are more
reasonable.’” White, 961 F.2d at 780 (quoting Fireman’s Fund Ins. Co. v. Aalco Wrecking Co., Inc.,
466 F.2d 179, 186 (8th Cir. 1972)). For the reasons explained above, the verdict was not against the
weight of the evidence so as to constitute a miscarriage of justice.
Federal Rule of Civil Procedure 51(d) provides that a party may assign as error a failure to
give an instruction, if that party properly requested it and–unless the court rejected the request in a
definitive ruling on the record–also properly objected. Reversal is only warranted if the failure to
give its requested instructions misled the jury or had a probable effect on the verdict. Taylor v.
Dormire, 690 F.3d 898, 900 (8th Cir. 2012). See also 11 MARY KAY KANE, FEDERAL PRACTICE AND
PROCEDURE § 2805 (3d ed. 2015) (“[I]t is only those errors that have caused substantial harm to the
losing party that justify a new trial.”). A district court has broad discretion in instructing the jury.
B & B Hardware, Inc. v. Hargis Indus., Inc., 252 F.3d 1010, 1012 (8th Cir. 2001). Nucor argues
that it proffered four appropriate instructions and that the Court erred in failing to give those
instructions. Document #71 at 7. The Court did not err by failing to give the four instructions
proffered by Nucor, but even if it did err, the failure to give the instructions did not harm Nucor.
FED. R. CIV. PRO. 61.
Nucor contends that the Court erred by not giving instructions to the effect that Howard
violated laws and regulations by taking Lortab on the day of the accident. The evidence reflected
that Howard took one Lortab1 around 4:00 a.m. the morning of the incident. The incident occurred
ten hours later around 2:00 p.m. Nucor failed to provide evidence tending to show that Howard was
impaired by Lortab at anytime, let alone ten hours after he consumed it. Howard spoke to at least
three different Nucor employees on that day, none of whom testified that Howard appeared to be
impaired. Likewise, nothing in the hospital records suggests that Howard was in anyway impaired
when he was admitted.
The instructions that Nucor proffered on the impairment issue were based on Arkansas
Model Instruction 601, which provides a framework for the Court to instruct the jury that the
violation of a relevant statute, regulation, or ordinance is evidence of negligence. A party is entitled
to this instruction only when there is some basis in the evidence to support giving the instruction to
the jury. McMickle v. Griffin, 369 Ark. 318, 322, 254 S.W.3d 735, 740 (2007). Nucor asked the
Lortab is a combination of acetaminophen and hydrocodone. See Lortab, PHYSICIANS’
DESK REFERENCE, http://www.pdrhealth.com/drugs/lortab (last visited Feb. 22, 2016).
Court to instruct the jury that violations by Howard of ARK. CODE ANN. § 23-13-258, 49 C.F.R. §
392.4, 49 C.F.R. § 391.41, and 49 C.F.R. § 382.213(b) are evidence of negligence. The statute and
Department of Transportation regulations each involve the use of certain substances while operating
a commercial vehicle or performing safety sensitive functions while on duty. ARK. CODE ANN.
§ 23-13-258 provides that it is unlawful to possess, consume, or be under influence of any controlled
substance while operating or in physical control of a motor vehicle. Because Howard was not
operating or in physical control of a motor vehicle at the time of the accident, no evidence supported
an instruction based on this statute.
Forty-nine C.F.R. § 392.4 provides that no driver shall be on duty and possess, be under the
influence of, or use a narcotic drug or any derivative thereof; or any other substance, to a degree
which renders the driver incapable of safely operating a motor vehicle. Nucor argues that it was
entitled to the instruction because the evidence shows that Howard was in violation of the regulation
on the day of the incident. Nucor argues that the proper interpretation of 392.4 makes it unlawful
for a driver to possess, be under the influence of, or use, a narcotic drug or any derivative thereof;
the clause “to a degree which renders the driver incapable of safely operating a motor vehicle,” only
applies to “[a]ny other substance.” This may be true; the regulation has been interpreted in this
manner. See Toledo v. Nobel-Sysco, Inc., 892 F.2d 1481, 1490 (10th Cir. 1989). But there is no
evidence that Howard possessed, was under the influence, or was using Lortab at the time of the
accident. As mentioned, he admittedly used Lortab ten hours before the accident, but he testified
that he had none with him and no evidence showed that he was under the influence when the
Nucor also argues that Howard was in violation of the regulation because he was not advised
by a licensed medical practitioner that Lortab would not affect his ability to drive his truck. Section
392.4(c) provides that there is no violation when a narcotic is administered to a driver under the
instructions of a licensed medical practitioner, who has advised the driver that the substance will not
affect the driver’s ability to safely operate a motor vehicle. A licensed medical practitioner
administered Lortab to Howard but a chiropractor conducted his D.O.T. physical and found that he
was qualified for a license, though he took Lortab. “Licensed medical practitioner means a person
who is licensed, certified, and/or registered, in accordance with applicable Federal, State, local, or
foreign laws and regulations, to prescribe controlled substances and other drugs.” 49 C.F.R. §
382.107. Chiropractors are not permitted to prescribe controlled substances in the state of Kentucky,
where Howard visited a chiropractor for his D.O.T. physical. KY. REV. STAT. ANN. § 312.017(1)(f)
(West 2015). The purpose of section 392.4 is to ensure that drivers are not driving while impaired
by narcotics. No evidence showed that Howard was impaired at the time of the accident nor that his
use of Lortab caused or contributed to the accident. The facts of this case do not suggest that the
distinction between a chiropractor and a licensed medical practitioner had anything to do with the
accident. Drawing the jury’s attention to the regulation would have served only as an irrelevant
distraction and would have no probable effect on the verdict. The Court did not err in failing to
incorporate 49 C.F.R. § 392.4 into Arkansas Model Instruction 601. But even if the Court did err,
failing to give the instruction did not cause substantial harm to Nucor. The same reasoning applies
to § 391.41 and § 382.213(b), which similarly proscribe the use of narcotics while operating a
commercial motor vehicle.
Nucor also points to a hospital laboratory report indicating that Howard tested positive for
hydromorphone sometime after being admitted to the emergency room. The record reflects that the
test was ordered on July 27, 2011, at 6:25 p.m. Results were received on July 29, 2011, at 12:05
a.m., and reported on August 1, 2011, at 3:08 p.m. The laboratory report says that Howard was
negative for amphetamines, barbituates, benzodiazepines, cocaine metabolite, PCP, and THC but
positive for opiates at 3631 NG/ML for hydrocordone and positive at 427 NG/ML for
hydromorphone. Next to the report of positive for opiates, a handwritten note states that Howard
received Hydrocodone in the emergency room. Nucor did not provide testimony at trial to explain
the significance of the drug screening in relation to whether Howard was impaired when the accident
occurred. Nucor’s argument assumes that the laboratory report, standing alone, is sufficient
evidence to enable a jury to find that Howard was impaired at the time of the accident, but that
assumption is mistaken. The laboratory report, standing alone, does not explain the significance of
finding hydromorphone in Howard’s system after he had been given hydrocodone in the emergency
room. According to a recent article in the Journal of Toxicology, hydromorphone is a metabolite
of hydrocodone. “After administration of hydrocodone, 5-6% of the dose is recovered in urine as
hydromorphone and conjugated hydromorphone . . . . Hydromorphone . . . is itself marketed as
Dilaudid for the management of severe pain.” Neveen H. Barakat et al., Relationship between the
Concentration of Hydrocodone and its Conversion to Hydromorphone in Chronic Pain Patients
Using Urinary Excretion Data, 36 JOURNAL
ANALYTICAL TOXICOLOGY 257, 257 (2012).
Without expert testimony to explain the laboratory report, the relationship between hydrocodone and
hydromorphone, and the significance of the positive result for hydromorphone, there was no basis
for giving an instruction that assumed that evidence existed to show that Howard was under the
influence of hydromorphone at the time of the accident.
Nucor also proffered Arkansas Model Instruction 301, which provides the definition of fault.
Nucor correctly notes that this instruction is to be used when the term “fault” is used in another
instruction. However, the instructions did not use the term “fault.” Rather, they used the terms
“negligence” and “ordinary care,” so those terms were defined pursuant to the Arkansas Model
Instructions. It was not error to fail to provide the jury with the definition of fault.
In addition, Nucor proffered Arkansas Model Instruction 307, which defines assumption of
risk. Nucor argues that “there is no question that Howard voluntarily climbed onto the trailer and
directed the entire loading process which he claims lead to his fall.” The instruction should be used
only when comparative fault based on assumption of risk is an issue. Assumption of risk it not a
separate theory; it has been subsumed under Arkansas law into the definition of fault. ARK. CODE
ANN. § 16-64-122. Here, the Court instructed the jury pursuant to the Arkansas Model Instructions
on the definitions of negligence and ordinary care. The Court also explained that Nucor contended
there was negligence on the part of Howard and the interrogatories allowed for the jury to apportion
responsibility based on Howard’s comparative negligence. Thus, the instructions covered Nucor’s
theory of the case–that Howard fell due to his own negligence. “It is not error for the trial court to
refuse a proffered jury instruction when the stated matter is correctly covered by other instructions.”
Ouachita Wilderness Inst., Inc. v. Mergen, 329 Ark. 405, 417, 947 S.W.2d 780, 786 (1997).
Therefore, the Court was not obligated to give an instruction on assumption of risk. See Mergen,
329 Ark. at 417, 947 S.W.2d at 786.
Finally, Nucor proffered an instruction defining the term “disability” for purposes of social
security benefits, arguing that the instruction was needed because Howard was receiving Social
Security benefits at the time of the accident.2 The jury had no issue before it that required such an
instruction. Including the definition of “disability” would not have assisted the jury in determining
whether or the extent to which Howard’s own negligence contributed to his injury, nor would it have
assisted the jury in determining the amount of Howard’s damage. All of the evidence offered as to
Howard’s medical condition on the day of and prior to the accident was received. Instructing the
jury on the definition of disability for Social Security purposes would not have assisted the jury in
any way. Therefore, this Court did not err by failing to define the term “disability” to the jury.
Finally, Nucor argues that the passions of the jurors were inflamed as they witnessed Howard
being helped out of the building during a fire alarm. Document #71 at 6. And as a result, they were
unfairly prejudiced against Nucor in deciding liability and damages. Id. As pointed out by Howard,
jurors routinely witness injured plaintiffs entering the courthouse and moving about the courtroom.
Document #76 at 10. If Nucor believed the issue to be prejudicial, it was obligated to move for a
mistrial. See, e.g., Sanden v. Mayo Clinic, 495 F.2d 221, 227 (8th Cir. 1974) (holding that a new
trial was not warranted where defense counsel repeatedly spoke too loudly during bench
conferences, stating: “There was no motion for a mistrial at the time of the bench colloquy . . .”).
See also 11 MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2805 (3d ed. 2015) (“A
principal that strikes very deep is that a new trial will not be granted on grounds not called to the
Evidence was introduced that Howard was receiving Social Security benefits and that he
had been earning in excess of the maximum amount allowed to persons receiving those benefits.
court’s attention during the trial unless the error was so fundamental that gross injustice would
result.”). The jury and the parties returned from the fire alarm hiatus and proceeded with the
examination of a witness, without Nucor expressing any sort of concern about the incident. If Nucor
had brought the issue to the Court’s attention, the Court could have questioned the jurors about what
they saw and whether it might influence them, and could have given them an admonition to
disregard the incident or, if warranted, could have granted a mistrial. As the record stands, there is
no evidence that the jurors saw Howard being helped out of the building, nor, if they did see it, that
they were influenced by it.
Nucor argues that the verdict itself demonstrates unfair prejudice because it is excessive.
According to Nucor, the verdict exceeds the damages requested by Howard’s lawyer in closing,
which shows that it was the result of passion and prejudice. Howard’s counsel asked the jury during
closing arguments for past lost wages–$53,520; future lost wages–$65,400; medical
expenses–$52,133.40; and pain and suffering–at least $200,000. The requested damages totaled
$371,053.40. The jury awarded Howard $331,600. Nucor is mistaken in its argument that the jury
awarded damages in an amount greater than requested in the plaintiff’s closing argument. The
verdict was not excessive.
For the foregoing reasons, Nucor’s renewed motion for judgment as a matter of law, or in
the alternative, a motion for a new trial is DENIED. Document #70.
IT IS SO ORDERED this 22nd day of February, 2016.
J. LEON HOLMES
UNITED STATES DISTRICT JUDGE
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