McCon v. Perez et al

Filing 422

ORDER denying 403 Motion for Judgment as a Matter of Law; denying 403 Motion for New Trial; denying as moot 405 Motion to Stay Proceedings. Signed by District Judge Louis Guirola, Jr on 12/12/18 (PKS)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JAMETRIUS MCCON

PLAINTIFF

v.

CAUSE NO. 1:17CV77-LG-RHW

ADOLFO PEREZ and D&D EXPRESS
TRANSPORT

DEFENDANTS

ORDER DENYING DEFENDANTS’ MOTION FOR JUDGMENT AS A
MATTER OF LAW, FOR REMITTITUR AND NEW TRIAL ON DAMAGES
BEFORE THE COURT is the [403] Motion for Judgment as a Matter of Law
or, in the Alternative, for Remittitur or a New Trial on Damages filed by
Defendants Adolfo Perez and D&D Express Transport. Defendants argue that
Plaintiff Jametrius McCon failed to present sufficient evidence to support the jury’s
verdict and, alternatively, that the jury’s award of $350,000 in damages was
excessive. The Motion is fully briefed. Having considered the submissions of the
parties, the record, and relevant law, the Court finds that Defendants’ Motion for
Judgment as a Matter of Law or, in the Alternative, for Remittitur or a New Trial
on Damages will be denied.
I. BACKGROUND
Trial in this case commenced on September 25, 2018 and lasted four days. At
the conclusion of trial, the jury found for the plaintiff and awarded $350,000 in
damages. However, the jury apportioned fault between defendants and the nonparty driver of the motor vehicle in which Plaintiff was a passenger at 50% each.
The Court accordingly entered judgment against the defendants in the amount of

$175,000 plus costs. On October 26, 2018, Defendants filed the instant Motion,
along with a [405] Motion to Stay Enforcement of Judgment or Set Supersedeas
Bond Pending Post-Trial Motions. The Court’s disposition of the instant Motion
renders moots the request to stay enforcement of the judgment or set a supersedeas
bond.
Defendants’ Motion for Judgment as a Matter of Law or, in the Alternative,
for Remittitur or a New Trial on Damages makes two alternative arguments: (1)
Defendants are entitled to judgment as a matter of law because the evidence put on
at trial was legally insufficient for a reasonable jury to have found that Defendants
were negligent, and (2) Defendants are entitled to a remittitur or a new trial on
damages because the damage award of $350,000 was clearly excessive in light of the
evidence adduced at trial and awards for similar injuries in the Southern District of
Mississippi.
II. DISCUSSION
A. Judgment as a Matter of Law
Defendants’ Motion is a renewed request for judgment as a matter of law
under Federal Rule of Civil Procedure 50(b). “Judgment as a matter of law is
appropriate where ‘a reasonable jury would not have a legally sufficient evidentiary
basis to find for the party on that issue.’” Cristain v. Hunter Buildings & Mfg., L.P.,
908 F.3d 962, 964 (5th Cir. 2018) (quoting Kelso v. Butler, 899 F.3d 420, 424 (5th
Cir. 2018)). Thus, “the facts and inferences [must] point ‘so strongly and
overwhelmingly in the movant’s favor that reasonable jurors could not reach a

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contrary conclusion.’” EEOC v. Boh Bros. Constr. Co., LLC, 731 F.3d 444, 451 (5th
Cir. 2013) (en banc) (quoting Braisden v. I’m Ready Prods., Inc., 693 F.3d 491, 498
(5th Cir. 2012)). “The court ‘must draw all reasonable inferences in favor of the
nonmoving party, and . . . may not make credibility determinations or weigh the
evidence.’” Cristain, 908 F.3d at 964 (citations omitted). The Fifth Circuit is
“‘especially deferential’ to jury verdicts,” which will not be disturbed “so long as
there is ‘substantial evidence, in the light most favorable to the successful party, to
support the verdict.’” Shell Offshore, Inc. v. Tesla Offshore, L.L.C., 905 F.3d 915,
923 (5th Cir. 2018) (citations omitted).
Evidence in the record supports the jury’s conclusion that Defendant Adolfo
Perez negligently operated his tractor-trailer on the interstate. For example, the
jury heard testimony from accident reconstructionists that the vehicle in which
McCon was a passenger had illuminated taillights and perhaps even flashing
hazard lights at the time Perez rear-ended the vehicle. The jury also heard the
eyewitness testimony of McCon and the driver, Daryl Williams, regarding the
significant speed with which Perez’s truck closed on their vehicle.
Defendants maintain, however, that insufficient evidence supports the jury’s
determination that Perez breached his duties of care as a commercial truck driver.
The Court must disagree. The jury found that Perez was not entirely at fault
because it apportioned fault 50/50 between Williams and Perez. But Defendants’
arguments invite the Court to usurp the fact-finding role of the jury and decide that

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Defendants’ theories at trial were better-supported by the evidence. The Court may
not substitute its own judgment for that of the jury.
B. Remittitur or a New Trial on Damages
Under Federal Rule of Civil Procedure 59, the Court may alter or amend a
judgment or grant a new trial on all or some of the issues. Fed. R. Civ. P. 59(a)(1),
(e). Defendants ask for remittitur under Rule 59(e) or a new trial on damages only
under Rule 59(a)(1). “In a diversity case such as this one, a district court applies
the remittitur [or new trial] standard of the forum state.” Berry v. Auto-Owners Ins.
Co., 634 F. App’x 960, 963 (5th Cir. 2015) (citing Foradori v. Harris, 523 F.3d 477,
497 (5th Cir. 2008)). Remittitur is appropriate under Mississippi law when “the
court finds that the damages are excessive . . . for the reason that the jury or trier of
the facts was influenced by bias, prejudice, or passion, or that the damages awarded
were contrary to the overwhelming weight of credible evidence.” Miss. Code Ann. §
11-1-55; see Foradori, 523 F.3d at 498. Whether a jury award is excessive is
determined “on a case-by-case basis.” Entergy Mississippi, Inc. v. Bolden, 854 So. 2d
1051, 1058 (Miss. 2003) (citing Biloxi Elec. Co. v. Thorn, 264 So. 2d 404, 405 (Miss.
1972)). A jury’s award of damages will not be disturbed “unless its size, in
comparison to the actual amount of damage, shocks the conscience.” Id. (citing City
of Jackson v. Locklar, 431 So. 2d 475, 481 (Miss. 1983)). A new trial on damages
only occurs when the Court finds remittitur warranted but the plaintiff declines the
remitted award. Miss. Code Ann. § 11-1-55; Eiland v. Westinghouse Elec. Corp., 58
F.3d 176, 182-83 (5th Cir. 1995).

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The jury’s verdict form contained separate lines for the jury’s award of
“economic damages” and “noneconomic damages,” if any. The jury left the line for
economic damages blank and awarded $350,000 in noneconomic damages.
Defendants have cited a litany of personal injury cases from state and federal courts
in the Southern District of Mississippi in support of their argument that the jury’s
award of $350,000 in noneconomic damages is excessive in light of Plaintiff’s
documented economic damages, which Defendants calculated to be approximately
$27,600. Although Defendants’ position has some facial appeal, there is no
requirement that noneconomic damages be limited in proportion to the awarded
economic damages in a personal injury case. These are not punitive damages.
There was evidence adduced at trial of McCon’s present and future physical
limitations and the effect that these limitations have had – and will continue to
have – on his ability to do his previous, higher-paying work as a cable-puller at
Ingalls Shipyard and on his personal life. Regardless of what the jury awarded
McCon in economic damages, the award of $350,000 in noneconomic damages was
not excessive in comparison to the actual damage McCon suffered. “It is for the
jury, and not the court, ‘to weigh conflicting evidence and inferences, and determine
the credibility of witnesses.’” Shell Offshore, 905 F.3d at 923 (quoting Boh Bros.
Constr. Co., 731 F.3d at 452 (quoting Roman v. W. Mfg., Inc., 691 F.3d 686, 692 (5th
Cir. 2012))).
Defendants also argue that the jury’s award was influenced by passion and
bias because the jury asked the Court during deliberation, “What does the

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percentage of fault decide? Or determine?” Defendants suggest that this inquiry by
the jury demonstrates that the jury doubled their damage calculations because the
jurors had already apportioned fault 50/50 and realized McCon would only recover
for the half attributed to Defendants. This is mere speculation. It is just as likely
that the jury had already determined McCon’s damages to be $350,000 without
having given any consideration to what McCon would be able to recover from
Defendants. Under the circumstances, the Court finds that remittitur is not
warranted.
IT IS THEREFORE ORDERED AND ADJUDGED that the [403] Motion
for Judgment as a Matter of Law or, in the Alternative, for Remittitur or a New
Trial on Damages filed by Defendants Adolfo Perez and D&D Express Transport is
DENIED.
IT IS FURTHER ORDERED AND ADJUDGED that the [405] Motion to
Stay Enforcement of Judgment or Set Supersedeas Bond Pending Post-Trial
Motions is DENIED AS MOOT.
SO ORDERED AND ADJUDGED this the 12th day of December, 2018.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

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