Russell v. Anderson

Filing 159

MEMORANDUM AND ORDER - Plaintiff's request for oral argument (Filing 158 ) is denied. Plaintiff's motion for new trial (Filing 142 ) is denied. Ordered by Senior Judge Richard G. Kopf. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID T. RUSSELL,
Plaintiff,
v.
EDWARD R. ANDERSON,
Defendant.

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4:17CV3085

MEMORANDUM
AND ORDER

On May 17, 2019, the jury returned a verdict in favor of Plaintiff, David Russell, on
his negligence claim against Defendant, Edward Anderson, and awarded Plaintiff damages
in the amount of $7,000.00. See Filing 126. Judgment was entered in accordance with the
jury’s verdict that same date. See Filing 128.
On June 13, 2019. Plaintiff filed a motion for a new trial “on the limited issue of the
nature and extent of his damages.” Filing 142. The motion for new trial is now fully briefed,
and is ripe for determination.1
“The authority to grant a new trial is within the discretion of the district court.” Gray
v. Bicknell, 86 F.3d 1472, 1480 (8th Cir. 1996); Fed. R. Civ. P. 59(a)(1). “A new trial is
appropriate when the first trial, through a verdict against the weight of the evidence, an
excessive [or inadequate] damage award, or legal errors at trial, resulted in a miscarriage of
justice.” Id.

1

On July 10, 2019, Plaintiff filed a request for oral argument. See Filing 158. That
request will be denied. The court has carefully reviewed the parties’ briefs and exhibits, and
does not believe that the decisional process would be aided by oral argument. See NECivR
7.1(d) (“In general the court does not allow oral argument ... on motions. The party
requesting oral argument ... must state (1) why argument ... is necessary and (2) an estimate
of the time required ....”). Plaintiff merely states that “there are many facts, arguments, and
points raised by the parties and oral argument may assist the trial court in resolving the
motion” (Filing 158).

“[A]n allegedly erroneous evidentiary ruling does not warrant a new trial unless the
[admission or exclusion of] evidence was so prejudicial that a new trial would likely produce
a different result.” Burris v. Gulf Underwriters Ins. Co., 787 F.3d 875, 880 (8th Cir. 2015)
(quoting Diesel Mach., Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 833 (8th Cir. 2005)).
Similarly, giving an allegedly erroneous jury instruction will justify a new trial “only where
the error affects the substantial rights of the parties.” Bamford, Inc. v. Regent Ins. Co., 822
F.3d 403, 410 (8th Cir. 2016) (quoting Bauer v. Curators of the Univ. of Mo., 680 F.3d 1043,
1044 (8th Cir. 2012)). A new trial will be ordered only “if the error misled the jury or had
a probable effect on its verdict.” Id. (quoting Acuity v. Johnson, 776 F.3d 588, 596 (8th Cir.
2015)).
“Although the appropriateness of a new trial is a federal procedural question decided
by reference to federal law, in determining whether a state law claim damage award is
excessive [or inadequate], state case law guides [the] inquiry.” Niemiec v. Union Pac. R.R. Co.,
449 F.3d 854, 858-59 (8th Cir. 2006) (quoting Sanford v. Crittenden Mem’l Hosp., 141 F.3d
882, 884 (8th Cir. 1998)). Under Nebraska law, “[a]n award of damages may be set aside as
excessive or inadequate when, and not unless, it is so excessive or inadequate as to be the
result of passion, prejudice, mistake, or some other means not apparent in the record.” Roth
v. Wiese, 716 N.W.2d 419, 436 (Neb. 2006). “Where the amount of damages allowed by a
jury is clearly inadequate under the evidence, it is error for the trial court to refuse to set the
verdict aside.” Christian v. Smith, 759 N.W.2d 447, 463 (Neb. 2008).
With respect to alleged errors occurring at trial, the court stands by its evidentiary
rulings and jury instructions, and, with the exception of the three limiting instructions that
were given to the jury during the direct examination of Plaintiff’s expert, does not believe
any further explanation is necessary because the record speaks for itself. The purpose of the
limiting instructions was to provide jurors with a proper understanding of the legal basis for
the court’s overruling of Defendant’s objections to the expert’s testimony on causation, so
they would not be misled into thinking they were required to accept the expert’s opinions at
face value.2 A judge may properly comment on the presentation of evidence to exercise

2

For example, the first limiting instruction was given after Plaintiff’s expert was
asked how the fact that an MRI was taken five days after the accident “correlat[ed] into [his]

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control over a trial and to conduct the trial efficiently. Mitchell v. Kirk, 20 F.3d 936, 937 (8th
Cir. 1994) (citing Harris v. Steelweld Equip. Co., Inc., 869 F.2d 396, 401-02 (8th Cir.1989));
see Tweedle v. State Farm Fire & Cas. Co., 202 F. App’x 934, 939 (8th Cir. 2006)
(unpublished) (“A trial judge is given ‘considerable’ discretion to comment on the evidence
at trial.”) (quoting Billingsley v. City of Omaha, 277 F.3d 990, 997 (8th Cir. 2002)).
The court’s instructions concerning the weight to be given to expert testimony, even
if deemed overly repetitious, are not likely to have misled the jury or affected its verdict. The
jurors were instructed at the outset of the trial that “[y]ou should not take anything I may say
or do during the trial as indicating what I think of the evidence or what I think your verdict
should be” (Filing 104, p. 3), and again in the final jury instructions that “[n]either in these
instructions nor in any ruling, action or remark that I have made during the course of this trial
have I intended to give any opinion or suggestion as to what your verdict should be” (Filing
119, p. 3). It may also be noted that Plaintiff joined with Defendant in requesting that the jury
be given an instruction regarding expert testimony (Filing 94, p. 2), and that Plaintiff had no
objection to the court giving Instruction No. 5 in the final jury instructions (Filing 119, p. 6).
With respect to the amount of damages awarded, the jury obviously concluded that
Plaintiff’s proof of causation was, for the most part, insufficient. Considering the record as
a whole, this was not an unreasonable conclusion for the jury to have reached. While the
Nebraska Supreme Court has “held verdicts in personal injury cases to be inadequate as a
matter of law where the amount was in irreconcilable conflict with stipulated or uncontested
damages,” Reiser v. Coburn, 587 N.W.2d 336, 342 (Neb. 1998), that is not the situation
presented here.
causation conclusion” (Filing 143-2, p. 25). The witness responded, “It’s a proximate
relationship,” and expounded that “if the chicken coop’s burning and your little brother’s
standing there with the matches, then it’s pretty much that your little brother started the fire”
(Id., pp. 25-26). He placed the odds at “one in a hundred thousand or something” that
anything besides the accident would have caused the disc herniation that was shown on the
MRI (Id., p. 26). Defense counsel objected and moved to strike the answer under Rule 702
because the witness was “engaging in post hoc analysis” that was not helpful to the trier of
fact (Id.). The objection was overruled, but the jurors were instructed that, ultimately, it
would be up to them to decide whether or not the accident was the proximate cause of
Plaintiff’s injuries (Id.).

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“In awarding damages, the fact finder is not required to accept a party’s evidence of
damages at face value, even though that evidence is not contradicted by evidence adduced
by the party against whom the judgment is to be entered. Generally, a jury is entitled to
determine what portion of a claimed injury was proximately caused by the incident and what
portion of the medical bills was reasonably required.” Springer v. Bohling, 643 N.W.2d 386,
395 (Neb. 2002) (citations omitted); see Jones v. Meyer, 594 N.W.2d 610, 614 (Neb. 1999)
(holding that the jury could have reasonably concluded that the evidence did not support a
finding that all of the plaintiff’s medical expenses were a result of the accident); Hausman
v. Cowen, 601 N.W.2d 547 (Neb. 1999) (holding the evidence was sufficient to support the
jury’s damage award of $10,000 for personal injuries sustained in a motor vehicle collision,
rather than $2 million which the plaintiff had requested); Schneider v. Chavez-Munoz, 616
N.W.2d 46, 57 (Neb. App. 2000) (affirming judgment entered on the jury’s $0 damage award
even though the plaintiff was granted summary judgment on the issue of liability and the
parties stipulated that she incurred $7,691.58 in medical expenses); Holden v. Wal-Mart
Stores, Inc., 608 N.W.2d 187 (Neb. 2000) (the jury’s finding that the plaintiff sustained only
$6,000 in damages was not the result of a mistake, but the result of conflicting evidence at
trial; a subsequently incurred medical bill of at least $25,000 could be attributed to a preexisting condition); Austin by Austin v. Timperley, No. A-12-933, 2014 WL 1229550, at *4-5
(Neb. App. Mar. 25, 2014) (unpublished) (affirming judgment entered on the jury’s damage
award of $1,466 in medical expenses, rather than $32,828.78 as claimed by the plaintiff);
Almond v. Reeves, No. A-15-659, 2016 WL 3964899, at *8-10 (Neb. App. July 19, 2016)
(unpublished) (trial court did not abuse its discretion in denying the plaintiff’s motion for
new trial on the issue of damages where the jury awarded $307 for medical expenses, rather
than $2,006 that was claimed).
Because the jury returned a general verdict, which Plaintiff had requested (Filing 96,
p. 9), it cannot be determined what portion, if any, of the $7,000.00 damage award was for
medical bills, as opposed to compensation for physical injuries or pain and suffering.3 The
3

Plaintiff theorizes that the jury’s damage award was based on a statement made by
defense counsel during her closing argument that Plaintiff incurred $6,969 in expenses for
chiropractic and imaging services immediately after the accident (Filing 143-3, p. 87), and
complains that such amount cannot be calculated from the billing summary that was placed
in evidence. Plaintiff has not shown, however, that the statement was inaccurate.

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jury was instructed that it could consider each of these things in determining its damage
award (Filing 119, p. 12). Non-economic damages are “highly subjective” and should be
committed to the sound discretion of the jury. Eckerberg v. Inter-State Studio & Publ’g Co.,
860 F.3d 1079, 1088 (8th Cir. 2017) (quoting Hudson v. United Sys. of Ark., Inc., 709 F.3d
700, 705 (8th Cir. 2013)).
Plaintiff argues that the jury’s damage award “shocks the conscience” when it is
compared to a settlement offer that Defendant made shortly before trial (Filing 152-1), but
the court gives no weight to this evidence. See Fed. R. Evid. 408(a)(1) (evidence of offering
a valuable consideration in attempting to compromise a disputed claim is not admissible to
prove the validity or amount of the claim).
In summary, there was no miscarriage of justice in this case. Plaintiff has not shown
that any evidence was erroneously excluded or admitted, or that the jury was not properly
instructed. The jury’s damage award is not clearly inadequate under the evidence.
IT IS THEREFORE ORDERED:
1.

Plaintiff’s request for oral argument (Filing 158) is denied.

2.

Plaintiff’s motion for new trial (Filing 142) is denied.

DATED this 25th day of July, 2019.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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