Basra, et al v. Ecklund Logistics, Inc.

Filing 216

MEMORANDUM AND ORDER - The Renewed Motion for Judgment as a Matter of Law or, in the Alternative, Motion for New Trial, ECF No. 193 , filed by Defendant Ecklund Logistics, Inc., is denied. The Motion to Extend Time to Post Supersedeas Bond, ECF No. 213 , filed by Defendant Ecklund Logistics, Inc., is denied as moot. The stay of execution of the judgment is lifted, and, pursuant to the Court's Order, ECF No. 208 , no proceedings may be brought to enforce the Judgment, until 30 days after the date of this Memorandum and Order. Ordered by Chief Judge Laurie Smith Camp. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

INDERJEET BASRA, individually and as
Personal Representative for the estate
of Atinderpal Singh; and DILSHAAN S.
REHAL, by and through his next friend
Inderjeet Basra;

8:16CV83
MEMORANDUM
AND ORDER

Plaintiffs,
vs.
ECKLUND LOGISTICS, INC.,
Defendant.

This matter is before the Court on the Renewed Motion for Judgment as a Matter
of Law or, in the alternative, Motion for New Trial, ECF No. 193, filed by Defendant
Ecklund Logistics, Inc. (Ecklund). Also before the Court is Ecklund’s Motion to Extend
Time to Post Supersedeas Bond, ECF No. 214. For the reasons stated below, the
Motions will be denied.
BACKGROUND
Plaintiffs Inderjeet Basra and Dilshaan Rehal brought a negligence action against
Ecklund for the death of their husband and father, Atinderpal Singh. Plaintiffs claimed
Ecklund was vicariously liable for the negligence of its employed truck driver, Freddie
Galloway, as well as for its own negligent failure to train, supervise, monitor, and
manage Galloway.

They also claimed punitive damages.

Ecklund was granted

summary judgment on Plaintiffs’ negligent training, supervision, monitoring, and
management claim and on the issue of punitive damages. Memorandum and Order,
ECF No. 123. Accordingly, Plaintiffs’ remaining negligence and vicarious liability claim

was tried to a jury and Ecklund asserted the affirmative defense of comparative
negligence.
The evidence showed that Singh’s tractor rear-ended the left side of Galloway’s
trailer in the right-hand eastbound lane of Interstate 80 near York, Nebraska, at about
4:30 p.m. on August 8, 2012. Galloway had slowed his tractor-trailer to about five miles
an hour after he received notice over his radio that there was a fire a few miles ahead in
the median between the eastbound and westbound lanes. The police officers at the
scene of the fire testified that traffic was moving at interstate speeds and vehicles were
using both eastbound lanes. Dale Bennett was driving the tractor-trailer immediately in
front of Galloway and he testified that his speed was about forty to forty-five miles an
hour, though Plaintiffs’ and Ecklund’s experts both opined that Bennett was likely
travelling less than forty miles an hour. Neither Galloway nor Bennett recall seeing any
emergency personnel in the median before the collision.
Bennett and Galloway both testified that they illuminated the four-way flashers on
their trailers to warn following traffic of their reduced speeds, but Plaintiffs presented
post-accident video evidence that contradicted Galloway’s testimony. Evidence was
then admitted, over Ecklund’s objection, demonstrating that Galloway was in violation of
federal regulations restricting the number of hours a truck driver may drive in a given
time period; he was in possession of a duplicate logbook; and he was talking on a
hands-free cellular Bluetooth device at the time of the collision. After Singh’s tractor
impacted Galloway’s trailer, it continued down the eastbound lanes and collided with
Bennett’s trailer.

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On August 28, 2017, the jury returned a verdict in favor of Plaintiffs and against
Ecklund and awarded $2,250,000 in damages.

The jury found the amount of

negligence attributable to Ecklund’s truck driver, Galloway, was 55% and the amount of
negligence attributable to Plaintiffs’ decedent, Singh, was 45%.

Thus, Plaintiffs’

damages were reduced by 45% and judgment was entered in favor of Plaintiffs in the
amount of $1,237,500. Judgment, ECF No. 189.
Ecklund asks the Court to grant its renewed motion for judgment as a matter of
law for the reasons asserted at trial. Alternatively, Ecklund asks the Court to grant its
motion for a new trial.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 50(b) provides that “[n]o later than 28 days after
the entry of judgment . . . the movant may file a renewed motion for judgment as a
matter of law and may include an alternative or joint request for a new trial under Rule
59.” Fed. R. Civ. P. 50(b). “In ruling on the renewed motion, the court may:
(1) allow judgment on the verdict, if the jury returned a verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.”
Id. “If the court grants a renewed motion for judgment as a matter of law, it must also
conditionally rule on any motion for a new trial by determining whether a new trial
should be granted if the judgment is later vacated or reversed.” Fed. R. Civ. P. 50(c)(1).
“Rule 50(b) provides for post-trial renewal of a Rule 50(a) trial motion for
judgment as a matter of law,” and “[a] court reviewing a Rule 50(b) motion is limited to
consideration of only those grounds advanced in the original, Rule 50(a) motion.”
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Nassar v. Jackson, 779 F.3d 547, 551 (8th Cir. 2015) (citing Graham Constr. Servs. v.
Hammer & Steel Inc., 755 F.3d 611, 617-18 (8th Cir. 2014)). “Judgment as a matter of
law is warranted only when no reasonable juror, taking all reasonable inferences in the
light most favorable to the opposing party, could find against the movant.” Estate of
Snyder v. Julian, 789 F.3d 883, 887 (8th Cir. 2015) (citing Brawner v. Allstate Indem.
Co., 591 F.3d 984, 986 (8th Cir. 2010); Townsend v. Bayer Corp., 774 F.3d 446, 456
(8th Cir. 2014) (“A grant of [judgment as a matter of law] is proper only if the evidence
viewed [favorably to the prevailing party at trial] would not permit reasonable jurors to
differ as to the conclusions that could be drawn.”).

“In deciding whether to grant

judgment as a matter of law, [courts] may not weigh the credibility of evidence, and
conflicts in the evidence must be resolved in favor of the verdict.” S. Wine and Spirits of
Nev. v. Mountain Valley Spring Co., LLC, 646 F.3d 526, 533 (8th Cir. 2011) (citing
Schooley v. Orkin Extermination Co., 502 F.3d 759, 764 (8th Cir. 2007)).
“A new trial may be granted on all or some issues ‘after a jury trial, for any reason
for which a new trial has heretofore been granted in an action at law in federal court.’”
Stults v. Am. Pop Corn Co., 815 F.3d 409, 414 (8th Cir. 2016) (quoting Fed. R. Civ. P.
59(a)(1)(A)). “A new trial is appropriate when the first trial, through a verdict against the
weight of the evidence, an excessive damage award, or legal errors at trial, resulted in a
miscarriage of justice.” Gray v. Bicknell, 86 F.3d 1472, 1480 (8th Cir. 1996); see also
Trickey v. Kaman Insus. Techs. Corp., 705 F.3d 788, 807 (8th Cir. 2013). “With respect
to legal errors, a ‘miscarriage of justice’ does not result whenever there are inaccuracies
or errors at trial; instead, the party seeking a new trial must demonstrate that there was

4

prejudicial error.” Trickey, 705 F.3d at 807 (citing Buchholz v. Rockwell Int’l Corp., 120
F.3d 146, 148 (8th Cir. 1997)).
DISCUSSION
I. Judgment as a Matter of Law
At trial, Ecklund made its Rule 50(a) motion on the grounds that the evidence
established Plaintiffs’ decedent, Singh, was negligent as a matter of law and there was
no evidence that Ecklund’s truck driver, Galloway, was negligent. ECF No. 202, Page
ID 7142-43. The motion was denied and Ecklund has renewed its motion under Rule
50(b).
First, Ecklund asks the Court to grant judgment as a matter of law in its favor
pursuant to the Nebraska “range of vision” rule. In Nebraska, a “motorist is deemed
negligent as a matter of law if he or she operates a motor vehicle in such a manner as
to be unable to stop or turn aside without colliding with an object or obstruction in the
motorist’s path within his or her range of vision.” Traphagan v. Mid-Am. Traffic Mktg.,
555 N.W.2d 778, 782 (Neb. 1996) (quoting Nickell v. Russell, 525 N.W.2d 203, 208
(Neb. 1995)).

As the Court explained in its previous Memorandum and Order on

summary judgment, the range of vision rule would establish Singh’s negligence, but it
does not establish Galloway’s lack of negligence or the comparative negligence
attributable to Singh and Galloway. Memorandum and Order, ECF No. 123, Page ID
4316. At trial, Plaintiffs conceded Singh was negligent and the jury ultimately found that
Singh was negligent. Trial Transcript, ECF No. 202, Page ID 7161; Verdict Form, ECF
No. 187. Thus, it is unnecessary for the Court to apply the range of vision rule, posttrial, and Ecklund is not entitled to judgment as a matter of law thereunder.
5

See

Traphagan, 555 N.W.2d at 783 (explaining that a plaintiff’s negligence under the range
of vision rule “does not automatically equate with negligence that equals or exceeds the
defendant’s”).
Second, Ecklund asks the Court to grant judgment as a matter of law in its favor
based on the sufficiency of the evidence at trial. The jury returned a verdict in favor of
Plaintiffs because it found that the comparative negligence attributable to Galloway
exceeded that of Singh. Verdict Form, ECF No. 187 (finding Singh 45% negligent and
Galloway 55% negligent). Ecklund argues the evidence was insufficient to establish
Galloway was negligent at all.
“In order to recover in a negligence action, a plaintiff must show a legal duty
owed by the defendant to the plaintiff, a breach of such duty, causation, and damages.”
Phillips v. Liberty Mut. Ins. Co., 876 N.W.2d 361, 368 (Neb. 2016) (citing Peterson v.
Kings Gate Partners, 861 N.W.2d 444 (Neb. 2015)). Ecklund maintains the evidence
was insufficient for a reasonable juror to find that Galloway breached his duty of
reasonable care, or that Galloway proximately caused the rear-end collision.
“A person acts negligently if the person does not exercise reasonable care under
all the circumstances.” Hodson v. Taylor, 860 N.W.2d 162, 175 (Neb. 2015).1 The
“[p]rimary factors to consider in ascertaining whether the person’s conduct lacks
reasonable care [include] the foreseeable likelihood that the person’s conduct will result
in harm, the foreseeable severity of any harm that may ensue, and the burden of
precautions to eliminate or reduce the risk of harm.” Id. (quoting A.W. v. Lancaster Cty.
Sch. Dist. 0001, 784 N.W.2d 907, 918 (Neb. 2010). Furthermore,
1

This is a diversity case in which Nebraska substantive law applies to Plaintiffs’ negligence claim.

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[p]roximate cause is the cause that in a natural and continuous sequence
unbroken by an efficient intervening cause, produces the injury, and
without which the injury would not have occurred. To establish proximate
cause, the plaintiff must meet three basic requirements: (1) Without the
negligent action, the injury would not have occurred, commonly known as
the ‘but for’ rule or ‘cause in fact’; (2) the injury was a natural and probable
result of the negligence; and (3) there was no efficient intervening cause.
Roskop Dairy, L.L.C. v. GEA Farm Techs., Inc., 871 N.W.2d 776, 794 (Neb. 2015)
(citations omitted).
At trial, Plaintiffs presented evidence that Galloway was travelling as slow as five
miles an hour on Interstate 80, where the posted speed limit was seventy-five miles an
hour. There was also evidence that Galloway may have failed to engage the four-way
flashers on his trailer to alert following traffic of his significantly reduced speed.
Compare Trial Tr., ECF No. 198, Page ID 6668 (playing video deposition testimony,
Trial Exh. 94, 112:6-113:9, in which Galloway testified he turned on his four-way
flashers), with Trial Tr., ECF No. 201, Page ID 6985 (Trooper Wroblewski testifying that
a post-accident video, Trial Exh. 113, played at trial showed Galloway’s left-turn signal
was engaged, but not his four-way flashers).2 Although Ecklund contends Galloway
reasonably and appropriately reduced his speed in response to slowing traffic and the
median fire ahead, the evidence that he was moving much more slowly than other
traffic, and that he failed to engage his four-way flashers, was sufficient to support the
reasonable conclusion that Galloway breached his duty of care. See Traphagan, 555

2

In its brief, Ecklund repeatedly relies on Galloway’s testimony that he engaged his four-way
flashers as if that fact were undisputed and conclusively established at trial. However, evidence to the
contrary was presented to the jury. Tr. Exh. 113. At trial, it is the jury’s responsibility to weigh the
evidence and judge its credibility; at the Rule 50(b) stage, the Court must view conflicting evidence in
favor of the jury’s verdict and the nonmoving party. S. Wine and Spirits of Nev. v. Mountain Valley Spring
Co., LLC, 646 F.3d 526, 533 (8th Cir. 2011) (citing Schooley v. Orkin Extermination Co., 502 F.3d 759,
764 (8th Cir. 2007)).

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N.W.2d at 785 (finding that “a reasonably careful person would not have failed to take
the necessary precautions to warn oncoming motorists” that the defendant’s truck was
stopped and blocking a traffic lane on the highway). A reasonable jury could infer that
Galloway traveled at an unsafe speed and failed to engage his flashers due in part to
fatigue caused by his violation of federal service-hour restrictions, or distraction caused
by his use of a cellular Bluetooth device.

Moreover, Officer Winn testified that he

witnessed other vehicles traveling at interstate speeds near the median fire, Trial Exh.
99, 20:11-15; Trial Tr., ECF No. 198, Page ID 6706, and Dale Bennett, the driver of the
tractor-trailer immediately in front of Galloway, testified he was travelling at forty to fortyfive miles an hour, Trial Exh. 95, 46:9-11; Trial Tr., ECF No. 198, Page ID 6668. Thus,
the trial evidence, viewed favorably to Plaintiffs, was sufficient to support the jury’s
conclusion that Galloway breached his duty of reasonable care.
Yet Ecklund asserts that Singh, not Galloway, was the but-for cause of the
collision. Def.’s Br. Rule 50(b) Mot., ECF No. 194, Page ID 6551, 6557. As the Court
explained in its Memorandum and Order on summary judgment, there may be more
than one proximate cause of an injury. Memorandum and Order, ECF No. 123, Page ID
4316 (“an act need not be the sole cause of harm to qualify as a proximate cause”)
(quoting Amanda C. ex rel. Richmond v. Case, 749 N.W.2d 429, 441 (Neb. 2008). The
jury concluded both Singh’s and Galloway’s negligence proximately caused the
collision, and the Court finds that the jury’s conclusion was sufficiently supported by the
evidence. Based on the undisputed evidence that Galloway was travelling at five miles
an hour, and the conflicting evidence regarding whether his four-way flashers were on, it
was reasonable for the jury to conclude that, absent such conduct, the collision would
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not have occurred.3 See Roskop Dairy, 871 N.W.2d at 794 (stating that to establish
causation, the evidence must show that “[w]ithout the negligent action, the injury would
not have occurred”).

Accordingly, the evidence at trial sufficiently supported the

reasonable conclusion that Galloway was negligent.
Finally, Ecklund argues that if Galloway was negligent, the evidence could lead a
reasonable juror to only one conclusion, that Singh’s negligence equaled or exceeded
that of Galloway’s, i.e., the negligence attributable to Galloway was less than or equal to
50%. In Traphagan, the Nebraska Supreme Court stated
where reasonable minds may draw different conclusions and inferences
regarding the negligence of the plaintiff and the negligence of the
defendant such that the plaintiff’s negligence could be found to be less
than 50 percent of the total negligence of all persons against whom
recovery is sought, the apportionment of fault must be submitted to the
jury. Only where the evidence and the reasonable inferences therefrom
are such that a reasonable person could reach only one conclusion, that
the plaintiff’s negligence equaled or exceeded the defendant’s does the
apportionment of negligence become a question of law for the court.
555 N.W.2d at 783; see also Neb. Rev. Stat. § 25-21, 185.09. Here, the evidence was
not such that the only reasonable conclusion was “that [Singh’s] negligence equaled or
exceeded [Galloway’s] negligence.” Id. It is undisputed that Galloway was travelling at
about five miles an hour on Interstate 80 while other vehicles were travelling at or near
interstate speeds. There was conflicting evidence on whether Galloway engaged his
four-way flashers to alert traffic behind him of his slow speed, and Bennett, the driver of

3

The evidence does not support Ecklund’s contention that absent Galloway’s conduct, Singh
would have rear-ended Bennett, the tractor-trailer in front of Galloway, i.e., absent Galloway’s negligence
Singh’s death would have nevertheless resulted. Singh attempted to turn into the left-hand lane just
before he impacted the left side of Galloway’s trailer. Moreover, it is undisputed that Bennett had his fourway flashers on and he testified he was travelling at about forty-five miles an hour. Thus, the Court
cannot conclude that Singh would have similarly rear-ended Bennett’s trailer absent Galloway’s negligent
conduct.

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the tractor-trailer in front of Galloway, testified he was travelling at forty to forty-five
miles an hour.4

Viewing this evidence in a light most favorable to Plaintiffs and

resolving all reasonable inferences in favor of the verdict, the jury had sufficient
evidence to conclude Galloway was negligent and the issue of comparative negligence
was properly submitted to the jury. Thus, Ecklund’s renewed motion for judgment as a
matter of law under Rule 50(b) will be denied.
II. New Trial
Ecklund’s alternative motion for a new trial asks the Court to grant a new trial
based on erroneous evidentiary rulings, an erroneous jury instruction, sufficiency of the
evidence, and excessive and speculative damages.
a. Evidentiary Rulings
Ecklund asserts the Court erroneously admitted evidence that Galloway violated
federal regulations restricting the number of hours a truck-driver may drive;5 evidence
that Galloway falsified his logbook to conceal the fact that he had violated such federal
regulations; and evidence that Galloway was using a hands-free cellular Bluetooth
device at the time of the collision.

Initially, the Court had precluded the foregoing

evidence in limine, because its relevance was not apparent. Memorandum and Order,
ECF No. 118, Page ID 3398; Trial Transcript, ECF No. 201, Page ID 7023. At trial,

4

Although the Parties’ experts estimated Bennett’s speed was less than forty miles an hour, the
Court must not weigh the evidence or judge its credibility and it must view the trial evidence favorably to
the jury’s verdict and Plaintiffs. S. Wine and Spirits of Nev. v. Mountain Valley Spring Co., LLC, 646 F.3d
526, 533 (8th Cir. 2011) (citing Schooley v. Orkin Extermination Co., 502 F.3d 759, 764 (8th Cir. 2007));
see also Final Jury Instructions, ECF No. 180, Page ID 6415 (instructing the jury that it “determine[s] what
weight, if any, to give to an expert’s testimony just as [it does] with the testimony of any other witness”).
5

No driver may “drive a property-carrying commercial motor vehicle . . . for any period after . . .
[h]aving been on duty 70 hours in any period of 8 consecutive days.” 49 C. F.R. § 395.3(b)(2).

10

however, Plaintiffs demonstrated the relevance of the evidence and the Court
reconsidered its earlier ruling and admitted the evidence. Trial Transcript, ECF No. 201,
Page ID 6992, Page ID 7023.
“Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” Fed. R. Evid. 401; see also United States v. Oldrock, 867 F.3d
934, 940 (8th Cir. 2017) (“If there is ‘any tendency’ that evidence will make a
consequential fact more or less probable, the ‘[e]vidence should be admitted.’”) (quoting
United States v. Holmes, 751 F.3d 846, 851 (8th Cir. 2014)). “[A]n allegedly erroneous
evidentiary ruling does not warrant a new trial unless the evidence was so prejudicial
that a new trial would likely produce a different result.” Burris v. Gulf Underwritters 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)).
At trial, Plaintiffs introduced video evidence contradicting Galloway’s testimony
that he turned on his four-way flashers. Trial Exh. 113 (showing Galloway’s left turn
signal illuminated, but not his four-way flashers). As a consequence, the Court admitted
the evidence of Galloway’s service hours, false logbook, and cellular Bluetooth use
because each had a tendency to make the fact of whether he engaged his four-way
flashers less probable, and that fact was of significant consequence in determining
whether Galloway negligently operated his tractor-trailer.6 If Galloway was fatigued or

6

Ecklund claims “[t]he Court provided the jury with a limiting instruction” that this evidence was
admitted for impeachment purposes only; however, no such limiting instruction was given to the jury.
Def.’s Br. Rule 50(b) Mot., ECF No. 194, Page ID 6553. At sidebar, The Court explained it would admit
evidence showing Galloway violated federal service-hours regulations and had a false logbook to “attack[]
the credibility of Galloway.” Trial Transcript, ECF No. 201, Page ID 6992. The Court also admitted the

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distracted, he may have neglected to engage his four-way flashers, or his recollection of
the facts might be inaccurate. Thus, the foregoing evidence was relevant and the Court
finds that the probative value of this evidence was not substantially outweighed by any
danger of unfair prejudice.

See Fed. R. Evid. 403.

Therefore, this evidence was

properly admitted at trial.
Even if the admission of such evidence was improper, the Court finds it was not
prejudicial. If a new trial were granted, and the evidence at issue were not admitted, it
is unlikely the jury would reach a different conclusion. The evidence that Galloway was
travelling at five miles an hour and may have failed to warn following traffic by
illuminating his four-way flashers would still be presented to the jury. They would also
hear testimony that other vehicles did not similarly reduce their speed in response to the
median fire ahead and that Bennett was in front of Galloway travelling at forty to fortyfive miles an hour.
b. Jury Instructions
Ecklund argues Instruction No. 137 of the Final Jury Instructions was erroneous
because there was insufficient evidence upon which to support subparagraphs one

evidence for purposes of arguing that, if Galloway was fatigued, “he may have neglected to put on his
four-way flashers,” or “[h]e may have forgotten whether or not he put on his four-way flashers.” Id. The
Court admitted evidence of Galloway’s use of a cellular Bluetooth device reasoning that “there [was] a
factual dispute as to whether he had on his four-way flashers,” and “it is true that if he [was] distracted or
tired, that [evidence] may help a jury decide whether one factual scenario is more probable than the
other.” Id. at Page ID 7023.
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Instruction No. 13 provides, in relevant part, that
Plaintiffs claim [ ] Freddie Galloway was negligent in one or more of the following ways:
1.
2.

Failing to keep his vehicle at a speed which was appropriate under the
circumstances then existing;
Failing to keep a proper lookout;

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through six and subparagraph eight of Instruction No. 13. Def.’s Br. Rule 50(b) Mot.,
ECF No. 194, Page ID 6555.
The Court must determine “whether the instructions, taken as a whole and
viewed in the light of the evidence and applicable law, fairly and accurately submitted
the issues to the jury.” Lincoln Composites, Inc. v. Firetrace USA, LLC, 825 F.3d 453,
461 (8th Cir. 2016) (quoting Slidell, Inc. v. Millennium Inorganic Chems., Inc., 460 F.3d
1047, 1054 (8th Cir. 2006)). “[A] party is entitled to an instruction on its theory of the
case so long as it is legally correct and there is factual evidence to support it.” Boesing
v. Spiess, 540 F.3d 886, 890 (8th Cir. 2008) (quoting Thornton v. First State Bank of
Joplin, 4 F.3d 650, 652 (8th Cir. 1993)). A district court’s jury instructions are generally
reviewed for an abuse of discretion and “[a] district court abuses its discretion in
denying a new trial based on erroneous jury instructions only if ‘the errors misled the
jury or had a probable effect on the jury’s verdict.’” Firetrace, 825 F.3d at 461 (quoting
Slidell, 460 F.3d at 1047).
Subparagraphs one through six and subparagraph eight were each supported by
factual evidence presented at trial. The evidence demonstrated Galloway was travelling
at about five miles an hour on Interstate 80, he continued to talk on his cellular
3.
4.
5.
6.
7.
8.

Failing to keep his vehicle under proper control;
Becoming distracted while driving;
Driving while fatigued;
Driving at a slow speed without illuminating his hazard lights when a reasonable
driver would have done so;
[subparagraph 7 omitted]
Otherwise acting without the reasonable care required of him under the
circumstances.

Final Jury Instructions, ECF No. 180, Page ID 6420. Instruction No. 13 also explained “Plaintiffs must
prove, by the greater weight of the evidence . . . [t]hat Freddie Galloway was negligent in one or more
ways claimed by Plaintiffs. Id. at 6421.

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Bluetooth device despite observing a potential roadway hazard ahead, and he had
exceeded federally regulated service-hour restrictions. Further, there was evidence that
Galloway’s four-way flashers were not illuminated and that other drivers did not similarly
reduce their speed to five miles an hour.

Thus, the subparagraphs at issue in

Instruction No. 13 were based upon admissible, factual evidence.
c. Sufficiency of the Evidence
Ecklund’s alternative request for a new trial is also based on its argument that the
jury’s verdict was “against the manifest weight of the evidence.” Def.’s Br. Rule 50(b)
Mot., ECF No. 194, Page ID 6546.
“A motion for new trial based on sufficiency of the evidence should be granted
only ‘if the verdict is against the weight of the evidence and allowing it to stand would
result in a miscarriage of justice.’” Bennett v. Riceland Foods, Inc., 721 F.3d 546, 55253 (8th Cir. 2013) (quoting The Shaw Grp., Inc. v. Marcum, 516 F.3d 1061, 1067 (8th
Cir. 2008)). “In making this determination, the district court ‘can rely on its own reading
of the evidence—it can ‘weigh the evidence, disbelieve witnesses, and grant a new trial
even where there is substantial evidence to sustain the verdict.’” Firetrace, 825 F.3d at
459 (quoting White v. Pence, 961 F.2d 776, 780 (8th Cir. 1992)). Accordingly, federal
district courts have broad discretion to grant or deny a new trial based on the sufficiency
of the evidence. Firetrace, 825 F.3d at 459 (citing Children’s Broad. Corp. v. Walt
Disney Co., 357 F.3d 860, 867 (8th Cir. 2003) (“When the basis of the motion for a new
trial is that the jury’s verdict is against the weight of the evidence, the district court’s
denial of the motion is virtually unassailable on appeal.”). However, “a district judge is
not free to reweigh the evidence and set aside the jury verdict merely because the jury
14

could have drawn different inferences or conclusions or because [the] judge[ ] feel[s]
that other results are more reasonable.” Firetrace, 825 F.3d at 465 (quoting King v.
Davis, 980 F.2d 1236, 1237 (8th Cir. 1992)).
After reviewing the trial evidence, the Court finds that the jury’s verdict was not
against the weight of the evidence and there is no miscarriage of justice in allowing it to
stand. The jury was presented with sufficient evidence to conclude Galloway drove his
tractor-trailer at five miles an hour on Interstate 80 when conditions did not warrant such
a reduced speed, and that he failed to illuminate his four-way flashers to warn following
traffic of his reduced speed. There was also sufficient evidence for a jury to conclude
that Galloway’s speed, together with his failure to warn, was a significant contributing
cause of the collision. See Trial Tr., ECF No. 200, Page ID 6829-30 (Plaintiffs’ expert,
Steve Irwin, opining that Singh did not have enough time to perceive Galloway’s tractortrailer and subsequently recognize that it was moving unusually slow).8 Accordingly,
“the jury’s verdict was supported by a legally sufficient evidentiary basis and did not
strongly conflict with the greater weight of the evidence so as to warrant a new trial.”
Mattew v. Unum Life Ins. Co. of Am., 639 F.3d 857, 869 (8th Cir. 2011) (quoting Ryan v.
McDonough Power Equip., Inc., 734 F.2d 385, 387 (8th Cir. 1984) (“The court should

8

Although Ecklund states “[b]oth experts testified [Singh] . . . had sufficient time, distance, and
visual cues to make the observation that he was travelling too fast and was about to strike Galloway,”
Def.’s Br. Rule 50(b) Mot., ECF No. 194, Page ID 6553, this statement does not accurately characterize
Steve Irwin’s testimony. Irwin testified Singh was “approaching a slower moving vehicle ahead of him in
an environment where he doesn’t expect it,” and that “he didn’t have enough time” to realize that
circumstance and safely react. Trial Tr., ECF No. 200, Page ID 6829. Ecklund further claims “both
Plaintiffs’ and Defendant’s accident reconstruction experts agreed that the accident occurred through no
fault of Galloway,” Def.’s Br. Rule 50(b) Mot., ECF No. 194, Page ID 6553, which is also inaccurate
because Irwin testified he had no opinion as to whether Galloway’s speed was appropriate or whether
Galloway caused the collision. Trial Tr., ECF No. 200, Page ID 6829 (“Whether [Galloway] should or not
be going slow . . ., I don’t have an opinion.”); Id. at Page ID 6832-33 (stating “I don’t have an opinion
about [the cause of the collision]”). Thus, the jury’s verdict is not against the weight of this evidence.

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reject a jury’s verdict only where, after a review of all the evidence giving full respect to
the jury’s verdict, the court is left with a definite and firm conviction that the jury has
erred.”).
d. Damages
Ecklund asks the Court to grant a new trial on the issue of damages because the
damages awarded were unsupported by the evidence, excessive, and the result of
passion and prejudice.
“It is generally permissible for a trial court to grant a new trial on damages only.”
Bavlsik v. Gen. Motors, LLC, 870 F.3d 800, 809 (8th Cir. 2017) (citing Haug v. Grimm,
251 F.2d 523, 527-28 (8th Cir. 1958)). “The district court may order a new trial if
convinced the verdict goes against the clear weight of the evidence or where a
miscarriage of justice will result.” Schooley v. Orkin Extermination, Co., Inc., 502 F.3d
759, 768 (8th Cir. 2007) (citing Benjamin v. Aluminum Co. of Am., 921 F.2d 170, 173
(8th Cir. 1990)).
The jury heard testimony from Dr. Rosenbaum, who stated Plaintiffs’ total
economic loss amounted to $1,460,000 and explained the method he used to arrive at
that amount. Trial Tr., ECF No. 200, 6907. The jury also heard testimony from Plaintiff
Inderjeet Basra regarding her marital relationship with Singh and that they were
expecting a child at the time of Singh’s death. See In re Estate of Panec, 864 N.W.2d
219, 225 (Neb. 2015) (explaining wrongful death damages “include the pecuniary value
of the loss of the decedent’s support, society, comfort, and companionship”). Other
than its bare assertion that “the award is unsupported by the evidence,” Ecklund has
advanced no argument as to why the foregoing evidence relevant to economic and non16

economic loss fails to support the jury’s damages award. See Def.’s Br. Rule 50(b)
Mot., ECF No. 194, Page ID 6557.

The Court finds the trial evidence sufficiently

supported the damages awarded to Plaintiffs.
Ecklund also argues a new trial is warranted because the jury’s “award [was]
excessive and reflects the passion and prejudice of the jury instead of the impartial
assessment of the merits of Plaintiffs’ case.” Id. The Court has broad discretion to
grant or deny a new trial based on the size of the jury’s verdict. Dosset v. First State
Bank, 399 F.3d 940, 946 (8th Cir. 2005) (“Under our precedents, review of the district
court’s decision to grant a new trial based on the size of the verdict is ‘extraordinarily
deferential . . . .’”) (quoting Sanford v. Crittenden Mem’l Hosp., 141 F.3d 882, 884 (8th
Cir. 1998)). “A district court abuses its discretion in denying a new trial only where the
jury’s award is so excessive as to be a plain injustice or a monstrous or shocking result.”
Julian, 789 F.3d at 888 (8th Cir. 2015) (citing Latham Seed Co. v. Nickerson Am. Plant
Breeders, Inc., 978 F.2d 1493, 1499 (8th Cir. 1992)). “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, state case law
guides [the] inquiry.”

Sanford, 141 F.3d at 884 (internal citation omitted). Under

Nebraska law, an award is excessive if it is “so clearly against the weight and
reasonableness of the evidence and so disproportionate as to indicate that it was the
result of passion, prejudice, mistake, or some means not apparent in the record, or that
the jury disregarded the evidence or rules of law.” Shipler v. Gen. Motors Corp., 710
N.W.2d 807, 840 (Neb. 2006). “[P]assion or prejudice is shown when the verdict shocks

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the conscience.” Crewdson v. Burlington N. R.R. Co., 452 N.W.2d 270, 280 (Neb.
1990).
The evidence relevant to damages, specifically Dr. Rosenbaum’s and Inderjeet
Basra’s testimony, supports the jury’s verdict and it is not clear that the verdict was the
result of passion, prejudice, mistake, or a disregard for the rules of law.

Nor is it

shocking to the conscience. Thus, the jury’s verdict was not excessive under Nebraska
law. Furthermore, it was not “so excessive as to be a plain injustice or a monstrous or
shocking result” such that a new trial is warranted. Julian, 789 F.3d at 888-89 (finding a
jury’s award of $1 million in non-economic damages for the death of a 23-year-old
husband and father was not a plain injustice or monstrous or shocking result).
Alternatively, Ecklund requests a reduction in the amount of damages awarded,
i.e., remittitur.

“[A] district court should order remittitur only when the verdict is so

grossly excessive as to shock the conscience of the court. A verdict is not considered
excessive unless there is plain injustice or a monstrous or shocking result.” Eich v. Bd.
of Regents for Cent. Mo. State Univ., 350 F.3d 752, 763 (8th Cir. 2006) (internal
quotation and citations omitted); see also Eckerberg v. Inter-State Studio & Publ’g Co.,
860 F.3d 1079, 1087-88 (8th Cir. 2017).

The Court has determined the damages

awarded to Plaintiffs are not excessive under Nebraska law and that the award did not
constitute a plain injustice, nor was it monstrous or shocking. Therefore, Ecklund’s
request for remittitur will be denied. See Davis v. Bamford, Inc., No. 8:11CV69, 2012
WL 3583184, *1 (D. Neb. Aug. 20, 2012) (denying remittitur and upholding jury’s noneconomic damages award of $1,100,000 to the wife of a man severely injured in a
vehicle accident).
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CONCLUSION
Drawing all reasonable inferences in favor of the verdict, the evidence presented
at trial does not support Ecklund’s arguments and the Court will not grant Ecklund’s
Renewed Motion for Judgment as a Matter of Law. Nor has Ecklund demonstrated that
a new trial must be granted to avoid a miscarriage of justice, or that remittitur is
appropriate.
Accordingly,
IT IS ORDERED:
1.

The Renewed Motion for Judgment as a Matter of Law or, in the
Alternative, Motion for New Trial, ECF No. 193, filed by Defendant
Ecklund Logistics, Inc., is denied;

2.

The Motion to Extend Time to Post Supersedeas Bond, ECF No. 213, filed
by Defendant Ecklund Logistics, Inc., is denied as moot; and

3.

The stay of execution of the judgment is lifted, and, pursuant to the Court’s
Order, ECF No. 208, no proceedings may be brought to enforce the
Judgment, until 30 days after the date of this Memorandum and Order.

Dated this 21st day of November, 2017.

BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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