Bohannon v. Johnson Food Equipment Inc et al

Filing 197

ORDER setting aside the verdict, a new trial date to be scheduled by subequent order; and finding as moot 179 Motion for Bill of Costs; denying 188 Motion for Judgment. Signed by Judge James M. Moody on 6/15/09. (bkp)

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION

GWENDOLYN L. BOHANNON VS. CASE NO. 5:07CV00123 JMM

PLAINTIFFS

JOHNSON FOOD EQUIPMENT, INC., D/B/A BAADER-JOHNSON, ET AL. TYSON POULTRY, INC., AND TYNET CORP. ORDE R

DEFENDANT INTERVENORS

Pending before the Court are plaintiff's amended Motion for Judgment (#188) and Motion for Bill of Costs (#179). For the reasons stated below, the Motion for Judgment is denied and Motion for Bill of Costs is dismissed as moot. This case was tried to a jury with the plaintiff being awarded $4,500,000.00 in damages on April 24, 2009. Over plaintiff's objection, the verdict form allowed the jury to allocate fault to a nonparty pursuant to Arkansas Code Annotated § 16-55-202. On April 30, 2009, the Arkansas Supreme Court held that Arkansas Code Annotated § 16-55-202 was unconstitutional. See Johnson v. Rockwell Automation, Inc., 2009 WL 1218362 (Ark. 2009). After reviewing all of the suggestions of the parties, the Court finds the only resolution consistent with the ruling in Johnson is to set aside the jury's verdict and reschedule the case for trial. See Newton v. Clinical Reference Laboratory, Inc., 517 F.3d 554 (8th Cir. 2008) (Arkansas S.W.3d ,

statute struck as unconstitutional "is treated as if it had never been passed.") citing Land O'Frost, Inc. v. Pledger, 308 Ark. 208, 823 S.W. 2d 887, 889 (1992) (principle that an unconstitutional statute must be treated as if it had never been passed applies when issue was presented to trial court). The verdict is set aside and a new trial date will be scheduled by a subsequent order. IT IS SO ORDERED THIS 15 day of June , 2009.

James M. Moody United States District Judge