Hill v. J.B. Hunt Transport, Inc.

Filing 157

AMENDED ORDER by Judge Ronald A. White denying defendant J.B. Hunt Transport, Inc.'s motion for new trial (Re: 156 Ruling on Motion for New Trial ) (lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
MICHAEL HILL, as Special Administrator )
of the Estate of Jimmy Hill,
)
)
Plaintiff,
)
)
v.
)
)
J.B. HUNT TRANSPORT, INC., and
)
O.K. FARMS, INC.,
)
)
Defendants.
)

Case No. CIV-13-429-RAW

AMENDED ORDER 1
Before the court is the motion of defendant J.B. Hunt Transport, Inc. (“Hunt”) for new
trial pursuant to Rule 59(a) F.R.Cv.P.2 In this negligence action, the jury returned a verdict
(#132) in favor of plaintiff for $3,400,000. Taking account of the jury’s finding of 98%
negligence on the part of Hunt and 2% negligence on the part of non-party Rodger Gentry,
the court entered a judgment (#136) in favor of plaintiff and against Hunt in the amount of
$3,332,000.3
First, Hunt argues that the court erred in not enforcing a subpoena requiring Troy Ford
(“Mr. Ford”) to appear at trial and in not permitting Ford’s video deposition to be used at

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This order corrects a typographical error as to the amount of the judgment.

2

Such a motion is generally not regarded with favor, and is granted only with great caution. The
party seeking to set aside a jury verdict must either show trial error which constitutes prejudicial error or that
the verdict was not based on substantial evidence. Smith v. Cochran, 182 Fed.Appx. 854, 864 (10th
Cir.2006).
3

Before submission to the jury, the court granted the motion of co-defendant O.K. Farms, Inc. for
judgment as a matter of law pursuant to Rule 50 F.R.Cv.P.

trial. This case litigated an accident involving a forklift (or “Moffett”) which took place in
August, 2012. Mr. Hill, the injured party and plaintiff’s decedent, died in December, 2012.
Ford was the driver of the Moffett at the time of the accident.
At the pretrial conference on October 23, 2014, no issue of Ford’s attendance was
raised.4

Trial commenced on October 28, 2014. As the minute sheet (#124) reflects,

plaintiff’s counsel then raised the issue of Mr. Ford to which defense counsel responded.
The issue seemed of more import to plaintiff than defendant at that time. The court advised
that it had no evidence before it on the issue and declined to enter an order. On October 29,
2014, defendant filed a motion (#123) requiring witness to obey subpoena and to attend trial.
The motion requesting the court to either (1) issue a show cause order to Mr. Ford or (2)
declare him unavailable under Rule 804(a)(5)(A) F.R.Evid.
The issuance of a show cause order does not compel immediate attendance. In the
present motion, Hunt argues that “it was abuse of discretion not to authorize the U.S.
Marshals Service to retrieve Ford from his home and force compliance with the trial
subpoena (#153) at 11. As the court explained at the time, it had been represented that Mr.
Ford was a truck driver. There was no certainty (to say that the least) that he would have
been at the address which had been provided. The court declined to suspend the trial while

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Hunt’s brief relates a conversation between defense counsel Curtis Roberts and Mr. Ford taking
place on October 22, 2014. The brief states: “At the end of the eight-minute conversation, Ford informed
Roberts that despite his anger toward J.B. Hunt, he would probably show up for trial. Roberts and Ford
discussed hotel accommodations and expenses. Ford asked Roberts to call him the next day to confirm.”
(#153) at 2-3. Again, this information was not brought up at the pretrial conference.

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the marshals engaged in a possible wild goose chase. The issue should have been brought
to the court’s attention before commencement of trial, when more practical options (such as
a continuance) are available.
Alternatively, Hunt states that the court could have permitted the use of Mr. Ford’s
deposition pursuant to Rule 32(a)(4)(E) F.R.Cv.P., which permits a party to use the
deposition of a witness, whether or not a party, “if the court finds . . . on motion and notice,
that exceptional circumstances make it desirable – in the interest of justice and with due
regard to the importance of live testimony in open court – to permit the deposition to be
used.”

The Rule’s “exceptional circumstances” language grants the district court

considerable discretion in determining whether to admit deposition testimony. McDowell v.
Blankenship, 759 F.3d 847, 851 (8th Cir.2014). The circumstances of a witness’s absence
are exceptional when akin to the witness being “unavailable or unable to testify because he
is dead; at a great distance; aged, ill, infirm, or imprisoned; or unprocurable through a
subpoena.” Angelo v. Armstrong World Indus., Inc., 11 F.3d 957, 963 (10 th Cir.1993). Here,
it was not established that Ford’s attendance was “unprocurable through a subpoena,” except
that the desire for Ford’s presence was only raised after commencement of trial.
Ultimately, after review, the court determined that the deposition of Mr. Ford would
not be used. This ruling was based on failure to submit deposition designations at any point5
and the court’s belief that the Ford deposition added little. On the latter point, the court
5

Under the second amended scheduling order (#43), deposition designations were due by October 13,
2014, two weeks before trial.

3

agrees with plaintiff (#154 at 4-5) that the deposition contained hearsay as to the conduct of
Mr. Hill, which hearsay would have been excluded, and was cumulative of points otherwise
explored in other testimony and cross-examination.
Evidentiary rulings made at trial are reviewed for an abuse of discretion. Lowber v.
City of New Cordell, 378 Fed. Appx. 836, 839 (10th Cir.2010). If there is error in the
admission or exclusion of evidence, a jury verdict will be set aside only if the error
prejudicially affects a substantial right of a party. Hinds v. General Motors Corp., 988 F.2d
1039, 1049 (10th Cir.1993). The effect on the jury of evidence can only be prejudicial if it
can be reasonably concluded that with or without such evidence, there would have been a
contrary result. Id. The court is not persuaded that Hunt has met this burden for the reasons
stated. A new trial will not be granted on this basis.
In the alternative, Hunt seeks a new trial based on excessive damages or a remittitur
of damages.6 When a new trial motion asserts that the jury verdict is not supported by the
evidence, the verdict must stand unless it is clearly, decidedly, or overwhelmingly against the
weight of the evidence. Ryan Dev. Co. v. Ind. Lumbermens Mut. Ins. Co., 711 F.3d 1165.
1172 (10th Cir.2013). “Trial by jury is the bedrock right of our legal system.” Prager v.
Campbell County Mem. Hosp., 731 F.3d 1046, 1061 (10 th Cir.2013). The jury’s award is
inviolate, and remains inviolate so long as it is not so excessive as to shock the judicial

6

“There is no specific provision for a remittitur under the Federal Rules of Civil Procedure, but the
practice has long been approved as an alternative to a new trial” G.M. Garrett Realty, Inc. v. Century 21 Real
Estate Corp., 17 Fed. Appx. 169, 172-73 (4th Cir.2001). Whether Rule 59(a) or 59(e) is the proper vehicle,
Hunt has cited both.

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conscience and to raise an irresistible inference that passion, prejudice, corruption or other
improper cause invaded the trial. Id. at 1062. The district court abuses its discretion in
ordering a remittitur when the size of the verdict turns upon conflicting evidence and the
credibility of witnesses. Id. at 1061-62.
In a diversity case, state law governs the propriety of an award of damages – that is,
whether it is excessive or inadequate. Id. at 1062. The Supreme Court of Oklahoma has
stated that “[g]iven the nature of damages for wrongful death, if the amount awarded is not
flagrantly outrageous and extravagant, the court cannot undertake to draw a line at a certain
amount since the court cannot ascertain the excess.” Currens v. Hampton, 939 P.2d 1138,
1141 (Okla.1997).

After considering the jury’s verdict in light of the principles recited

above, the court declines to grant a new trial or a remittitur either.
It is the order of the court that the motion for new trial (#153) is hereby denied.
ORDERED THIS 3rd DAY OF MARCH, 2015.

Dated this 3rd day of March, 2015.

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