Miller v. Huron Regional Medical Center, Inc. et al
ORDER denying 290 Defendant's Motion for Remittitur or for New Trial. Signed by U.S. District Judge Karen E. Schreier on 2/7/18. (DJP)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
LINDA A. MILLER, M.D.;
HURON REGIONAL MEDICAL CENTER,
ORDER DENYING DEFENDANT’S
MOTION FOR REMITTITUR OR FOR
Plaintiff, Dr. Linda A. Miller, filed this action against defendant, Huron
Regional Medical Center (HRMC), for breach of contract and defamation. The
case proceeded to a jury trial where the jury found in favor of Dr. Miller on her
breach of contract claim and in favor of HRMC on the defamation claim. Docket
285. The jury awarded Dr. Miller $586,617 in lost wages incurred before trial
and $343,640 for future loss of earning capacity. Id. The jury also awarded
$250,000 for pain and suffering that the parties agreed was improper for a
breach of contract claim, and the court struck the award from the verdict.
Docket 283. HRMC now moves for remittitur or for a new trial. Docket 290. Dr.
Miller opposes the motion. Docket 295.
FACTUAL BACKGROUND 1
At trial, Dr. Miller alleged that HRMC violated its Medical Staff Bylaws
because “HRMC implemented corrective action through [another doctor’s]
request to her to voluntarily reduce her surgical privileges.” Docket 155 at 10.
A Surgical Services Agreement (SSA) and HRMC’s Bylaws governed the terms of
Dr. Miller and HRMC’s contract. Docket 155 at 2. HRMC’s Bylaws was an
enforceable contract that created a procedural right to a hearing where Dr.
Miller could have defended any concerns about her standard of care. Id. at 11.
Thus, HRMC’s actions violated its Bylaws because Dr. Miller was entitled to a
hearing but never received one. Id. at 10-11. The jury found in favor of Dr.
Miller on her claim that HRMC violated its Bylaws. Docket 277. Dr. Miller never
alleged that HRMC violated any part of the SSA. Dr. Miller also claimed
defamation based on HRMC’s report to the National Practitioner Data Bank
(NPDB) that gave notice of Dr. Miller’s voluntary reduction of surgical
privileges. The jury found in favor of HRMC on the defamation claim. Docket
Settling Jury Instructions
Prior to presenting the jury with the court’s Final Jury Instructions, the
court settled the instructions with both parties present at two separate
hearings. Docket 293. At the May 5, 2017 hearing, HRMC did not object to the
court’s Final Jury Instruction Number 10 on “Breach of Contract –
The following factual background is derived from the pleadings, affidavits,
motions, and transcripts. The background is limited in scope to facts relevant
to defendant’s motion for remittitur or for a new trial on the issues of breach of
contract damages and Dr. Huntoon’s testimony.
Compensatory Damages,” Final Jury Instruction Number 14 on “Future
Damages,” or to the court’s Verdict Form. Id. 7:14, 14:22-14:23, 22:22.
Further, Dr. Miller specifically stated at the hearing that she was seeking past
and future lost wages. Id. 19:18-19:21. When discussing the Verdict Form, the
court asked plaintiff’s attorney, “So on the breach of contract claim, are you
seeking anything other than lost wages?” Id. 19:18-19:19. Attorney Wilson,
representing Dr. Miller, responded, “No – I misspoke, your Honor. Past and
future wages on the contract claim.” Id. 19:20-19:21. Plaintiff’s counsel then
expressed some concern over the damages section of the Verdict Form in the
event that the jury found in favor of Dr. Miller on the breach of contract claim
but against her on the defamation claim. In response, the court proposed
editing the Verdict Form to have a general section of damages that included a
space for lost wages, loss of earning capacity, and mental anguish. 2 The court
The hearing proceeded as follows:
The Court: So what if instead of having compensatory damages
right after breach of contract, that says you decide the issue of
breach of contract first, decide defamation second, and then the
third question would be, if you found in favor of Dr. Miller on
either the breach for contract claim or the defamation claim,
determine the total amount of damages, if any, for lost wages, loss
of earning capacity and mental anguish. Docket 293 19:22-20:04.
Mr. Wilson: I think that would be perfect. Id. 20:08.
Ms. Raymond: I’m not sure I followed, but there’s no mental
anguish damages for the breach of contract, correct? Id. 20:0920:10.
The Court: Right. So if they only found in favor of her on breach of
contract, but against her on defamation and they awarded mental
anguish, I would find that that’s not proper and send it back to
them. Id. 20:11-20:14.
explained that if the jury improperly awarded damages for mental anguish, the
court would simply void the award. Both parties agreed to the suggested
The court then made the changes discussed at the May 5th hearing and
emailed the instructions with the changes to the parties over the weekend. Id.
31:23-32:09. At the May 8, 2017 hearing, the parties went over the Final Jury
Instructions and neither party objected to Final Jury Instructions Numbers 10
or 14 or to the Verdict Form. Id. 33:1-33:25.
Dr. Huntoon’s Expert Testimony at Trial
During the trial, Dr. Lawrence Huntoon, one of Dr. Miller’s experts,
testified as to why HRMC’s actions were indicative of a sham peer review. Dr.
Huntoon’s expert disclosure identified 3 that, in his opinion, HRMC conducted a
sham peer review of Dr. Miller because: (1) the Medical Executive Committee
(MEC) conducted a “review” of Dr. Miller under Section I.C. of the Bylaws; (2)
the “review” was not done in anticipation of a corrective action; (3) a request for
a corrective action would have required an investigation under the Bylaws; (4)
no “investigation” as defined in the Bylaws ever occurred; (5) HRMC
Mr. Wilson: And as far as the Plaintiff is concerned, you wouldn’t
have to send it back. I’m not sure what your procedure is. Id.
The Court: I would just make it null and void. Id. 20: 21.
Ms. Raymond: Just strike that allocation of that amount since it’s
not a basis of recovery? Id. 20:22-20:23.
The Court: Right. Id. 20:24.
Ms. Raymond: I’ll defer to your judgment, your Honor. Id. at 20:25.
3 Because Dr. Huntoon’s report is 98 pages, the court summarized what Dr.
Huntoon’s report stated based on his own summary found at Docket 175-2 at
manipulated the language of meeting minutes to convert the term “review” to
“investigation” in an attempt to explain the wrongful report to the NPDB; (6)
and HRMC took an adverse action against Dr. Miller when it coerced her to
reduce her privileges at the hospital. Docket 175-2 at 34-35. Specifically, Dr.
Huntoon’s report contains a section titled “Tactics Characteristic of Sham Peer
Review Identified in This Case” that includes a sub heading titled “Violation of
Medical Staff Rules and Regulations,” which details all of the provisions of the
Bylaws that Dr. Huntoon believed HRMC violated. Id. at 39-45.
HRMC now moves for remittitur or, alternatively, for a new trial because
the jury’s award of damages is not supported by South Dakota law, and one of
Dr. Miller’s experts, Dr. Huntoon, testified at trial outside the scope of the
opinions stated in his expert witness disclosure. Docket 290; Docket 291.
Objections to Final Jury Instructions and Verdict Form
To the extent that HRMC objects to the court’s Final Jury Instructions
and Verdict Form, it has failed to preserve the issues raised in the motion. “In
order to properly preserve a claim of instructional error for appellate review, a
party is not only required to make a sufficiently precise objection before the
district court, but it must also propose an alternate instruction.” Caviness v.
Nucor-Yamato Steel Co., 105 F.3d 1216, 1220 (8th Cir. 1997) (quoting Kehoe v.
Anheuser–Busch, Inc., 96 F.3d 1095, 1104 (8th Cir. 1996)). Federal Rule of Civil
Procedure 51(c)(1) states that “[a] party who objects to an instruction or the
failure to give an instruction must do so on the record, stating distinctly the
matter objected to and the grounds for the objection.” Fed. R. Civ. P. 51(c)(1).
Where a party fails to preserve an issue at trial, the remaining question for the
court is whether the instruction constitutes plain error. Lincoln Composites,
Inc. v. Firetrace USA, LLC, 825 F.3d 453, 462 (8th Cir. 2016).
Failure to Object at Trial
HRMC never objected to the court’s Final Jury Instructions Numbers 10
or 14, to the Verdict Form, or to plaintiff’s stated intention to pursue future
damages related to the breach of contract claim. HRMC states that it agrees
that the court’s jury instructions are correct statements of law (Docket 298 at
4), but that it was unforeseeable that the jury would “confuse” the instructions
and “erroneously” award Dr. Miller damages for lost wages and loss of earning
capacity on her breach of contract claim. Id. Thus, HRMC argues, it could not
object because “there is simply no procedure for objecting to such error.” Id. at
HRMC’s argument that it could not have properly objected because the
jury’s award of lost wages and loss of earning capacity for Dr. Miller’s breach of
contract claim was unforeseeable, is unfounded. During the jury instruction
settlement hearing, plaintiff’s counsel specifically discussed the possibility of
the jury finding in favor of Dr. Miller on her breach of contract claim, but not
her defamation claim, and what effect that would have on any award of
damages. See Docket 293 18:4-19:17. The court then clarified with plaintiff’s
counsel what damages plaintiff was seeking on the breach of contract claim
asking, “So on the breach of contract claim, are you seeking anything other
than lost wages?” Id. 19:18-19:19. Plaintiff’s counsel responded, “No—I
misspoke, your honor. Past and future wages on the contract claim.” Id. 19:2019:21. The court then went on to propose structuring the damages section of
the verdict form to state, “If you found in favor of Dr. Miller on either the
breach of contract claim or the defamation claim, determine the total amount
of damages, if any, for lost wages, loss of earning capacity and mental
anguish.” 4 Id. 19:25-20:4.
Defendant’s counsel did not object or raise any concern at that time with
counsel’s statement or with the court’s suggested alteration. In fact,
defendant’s counsel only clarified that there was no mental anguish damages
for the breach of contract claim, and that if the jury did incorrectly award
mental anguish damages on the breach of contract claim, that the court would
strike that allocation. 5 Id. 20:9-20:25. Defendant’s counsel did not raise any
objection to the jury awarding future damages on the breach of contract claim
or argue that the court should strike such an award in the event that the jury
awarded future damages on the breach of contract claim. Thus, defendant had
ample notice that plaintiff sought damages for lost wages and loss of earning
capacity on her breach of contract claim and failed to object. Because HRMC
This is the language that was eventually adopted in the final verdict form. See
5 It is worth noting that this exact factual scenario is what the jury ended up
awarding. The jury found in favor of Dr. Miller on her breach of contract claim
but found in favor of HRMC on her defamation claim. Docket 276. And the jury
awarded Dr. Miller damages for lost wages, loss of earning capacity, and
mental anguish. Id. The court, based on a stipulation from the parties, entered
an order striking the damages for mental anguish. Docket 282.
failed to preserve the issue at trial, the court’s review is limited to whether the
instructions constitute plain error.
HRMC argues that a plain error occurred in this trial because the jury
erroneously applied the future damages instruction to the breach of contract
claim. Docket 298 at 9. “Plain error is a stringently limited standard of review,”
and must result in a miscarriage of justice in order to compel reversal.
Horstmyer v. Black & Decker, (U.S.), Inc., 151 F.3d 765, 771 (8th Cir. 1998)
(quoting Rush v. Smith, 56 F.3d 918, 925 (8th Cir. 1995)). The court considers
whether “the instructions, taken as a whole and viewed in light of the evidence
and applicable law, fairly and adequately submitted the issues in the case to
the jury.” Amplatz v. Cty. Mut. Ins. Co., 823 F.3d 1167, 1173 (8th Cir. 2016)
(quoting Horstmyer, 151 F.3d at 771.
The court’s instructions were accurate statements of the law and
adequately presented the issues to the jury. Final Jury Instruction Number 10 6
titled “Breach of Contract – Compensatory Damages” is derived directly from
South Dakota Civil Pattern Jury Instruction (SDCPJI) §§ 50-00-10 and 50-7010. See Docket 272 at 11; SDCPJI §§ 50-00-10, 50-70-10. In fact, Final Jury
Instruction Number 10 follows SDCPJI § 50-70-10 almost word-for-word.
Docket 272 at 11. Similarly, Final Jury Instruction Number 14 titled “Future
Damages” is derived from SDCPJI § 50-120-10 and almost quotes the pattern
At the settlement conference the breach of contract – compensatory damages
instruction was numbered as instruction 9 and the future damages instruction
was numbered instruction 12.
instruction. Docket 272 at 17. HRMC does not argue that the instructions
themselves were inaccurate but instead argues that the jury mistakenly
awarded future damages on the breach of contract claim in violation of South
Dakota law. Docket 298.
Damages for Lost Wages
HRMC first argues that the jury’s award of lost wages for each year from
the time of Dr. Miller’s resignation in 2011 to the present is improper because
Dr. Miller cannot recover beyond her period of employment. Docket 291 at 8. In
support of its argument, HRMC heavily relies on Bad Wound v. Lakota
Community Homes, Inc., 603 N.W.2d 723 (S.D. 1999). 7 In Bad Wound, the
plaintiff alleged that he was wrongfully terminated from his employment. Id. at
724. At trial, the court made an evidentiary ruling and only permitted the jury
to award damages for lost wages during the period of the plaintiff’s employment
contract. Id. On appeal, the South Dakota Supreme Court upheld the trial
court and found that the plaintiff was not entitled to recover future loss of
income beyond his three-year contract term because he was not entitled to
more than he would have gained by full performance of the contract. Id. at 725.
Thus, HRMC argues that Dr. Miller is not entitled to lost wages beyond her
HRMC also cites cases from other jurisdictions that also stand for the
proposition that an employee is not entitled to lost wages beyond the term of
employment in the contract. See, e.g., Vosough v. Kierce, 97 A.3d 1150, 1168
(N.J. Super. Ct. App. Div. 2014); Kurnik v. Cooper Health Sys., 2008 WL
2829963, at *18 (N.J. Super. Ct. App. Div. July 24, 2008); Smith v. Mich. State
Univ., No. 202717, 1998 WL 1989867, at *1 (Mich. Ct. App. Sept. 29, 1998).
Here, Dr. Miller did not allege that HRMC wrongfully terminated her
contract. Instead, Dr. Miller alleged that HRMC forced her to reduce her
hospital privileges in violation of the provisions set forth in the Bylaws, and
that the violation of the Bylaws caused Dr. Miller direct and consequential
damages. More specifically, Dr. Miller claimed that the report to the NPDB
stating that she voluntarily reduced her privileges—which was filed as a result
of the breach of the Bylaws—caused her damages because she could not find
other employment as a surgeon. Those are damages separate and distinct from
damages resulting from a wrongful termination. Thus, the analysis in Bad
Wound and the other wrongful termination cases cited by HRMC are irrelevant
to this case.
In South Dakota, the measure of damages resulting from a breach of
contract “is the amount which will compensate the party aggrieved for all the
detriment proximately caused thereby, or which, in the ordinary course of
things, would be likely to result therefrom.” SDCL § 21-2-1. “[T]he ultimate
purpose behind allowance of damages for breach of contract is to place the
injured party in the position he or she would have occupied if the contract had
been performed[.]” Ducheneaux v. Miller, 488 N.W.2d 902, 915 (S.D. 1992).
Thus, Dr. Miller is entitled to compensatory damages resulting from HRMC’s
breach of its Bylaws.
At trial, Dr. Miller presented expert testimony that if she had not
surrendered her hospital privileges and had merely been terminated, with or
without cause, HRMC would not have been required to file a report with NPDB
and Dr. Miller would have been able to find other employment as a surgeon. In
other words, if HRMC had not breached its Bylaws, Dr. Miller would have been
terminated and she could then have found another position as a surgeon,
incurring no damages. Instead, Dr. Miller was unable to find employment as a
surgeon and had to take a lower paying position performing wound care. Thus,
to put Dr. Miller in the position she would have been in had HRMC performed
its obligations under the Bylaws, she was entitled to damages for lost wages
because she had to take lower paying work as a wound care specialist.
Damages for Loss of Earning Capacity
HRMC also argues that Dr. Miller is not entitled to $343,640 in loss of
earning capacity because South Dakota does not permit recovery of future
damages on a breach of contract claim. Docket 298 at 8. Again, HRMC cites to
Bad Wound as support for its argument. Id. As discussed above, Bad Wound
involved an employee who brought a claim against his employer for wrongful
termination and sought lost wages beyond the term of the employment
contract. Bad Wound, 603 N.W.2d at 724. Bad Wound is not applicable to this
case because Dr. Miller did not allege that HRMC violated her employment
contract, did not allege that HRMC wrongfully terminated her, and did not seek
lost wages that she would have received had she kept working at HRMC. Dr.
Miller sought the lost wages that were the result of her being unable to find
employment as a surgeon after leaving HRMC.
The South Dakota Supreme court has not previously ruled on whether a
plaintiff may recover damages on a breach of contract claim. But it has
“ ‘emphasized that the object of compensatory damages is to make the injured
party whole[,]’ and we do not favor the adoption of ‘blanket rule[s]’ that exclude
evidence of damages without first considering the circumstances in which
those damages occurred.” Lamar Advert. of S.D., Inc. v. Heavy Constructors,
Inc., 745 N.W.2d 371, 380 (S.D. 2008) (quoting O’Bryan v. Ashland, 717
N.W.2d 632, 639 (S.D. 2006)).In several scenarios dealing with compensatory
damages, the South Dakota Supreme Court has declined to adopt hardline
rules barring recovery and has instead analyzed whether the claim is “remote,
speculative, or uncertain” and permitted the trier of fact to determine whether
damages have been proven with reasonable certainty. See, e.g., Lamar, 745
N.W.2d at 380 (finding that plaintiff could attempt to show at trial and by
competent proof reasonably certain loss of net income); O’Bryan, 717 N.W.2d
at 639 (finding that the circuit court did not err by permitting the issue of
whether a plaintiff has been damaged by interest charged on unpaid tax
liability to be presented to the jury); City of Winner v. Bechtold Invs., Inc., 488
N.W.2d 416, 419 (S.D. 1992) (finding that the court could consider future
damages in its calculation of compensatory damages in a condemnation action
where there was competent evidence for the court to consider).
Because the South Dakota Supreme Court has previously indicated a
preference for permitting the trier of fact to determine whether the plaintiff has
proved future damages based on the particular circumstances in a case, this
court finds that South Dakota law does not bar Dr. Miller’s recovery of loss of
earning capacity due to HRMC’s breach of its bylaws. Thus, there has been no
plain error and the jury properly awarded Dr. Miller damages for her loss of
Defendant also moves for a new trial under Federal Rule of Civil
Procedure 59 because the jury awarded damages on Dr. Miller’s breach of
contract claim that go beyond the term of her contract and are not permitted
under South Dakota law and because Dr. Huntoon testified outside the scope
of his expert disclosure. Docket 291 at 7-8. Under Rule 59, a new trial is
required where there has been a miscarriage of justice. Greaser v. Mo. Dep’t of
Corrs., 145 F.3d 979, 983 (8th Cir. 1998). Possible reasons justifying a new
trial include a verdict that is against the weight of the evidence, an erroneous
jury instruction, or an excessive damage award. Children’s Broad. Corp. v. Walt
Disney Co., 245 F.3d 1008, 1017 (8th Cir. 2001). A court can grant a new trial
based on an erroneous jury instruction “only ‘if the error misled the jury or had
a probable effect on its verdict.’ ” Bamford, Inc. v. Regent Ins. Co., 822 F.3d 403,
410 (8th Cir. 2016) (quoting Acuity v. Johnson, 776 F.3d 588, 596 (8th Cir.
Future Damages on Breach of Contract
As previously discussed, HRMC’s argument that South Dakota law
prohibits Dr. Miller from recovering future damages on her breach of contract
claim is unfounded. Infra Section I.B.1. Bad Wound is inapplicable to this case
because Dr. Miller did not allege that HRMC breached her employment
contract and the South Dakota Supreme Court has expressed its preference for
permitting the trier of fact to determine whether future damages have been
proved with sufficient evidence. Infra Section I.B. Thus, the jury’s award of
future damages on Dr. Miller’s breach of contract claim is not prohibited by
South Dakota law and is not a miscarriage of justice.
Dr. Huntoon’s Expert Testimony
Finally, HRMC argues that a new trial is warranted because Dr. Huntoon
testified outside the scope of his expert disclosure when he discussed how
HRMC violated its Bylaws. Docket 291 at 15. At trial, HRMC did not object to
any part of Dr. Huntoon’s testimony being outside the scope of his expert
disclosure. See Docket 288 at 16, 47. Thus, the court is precluded from
reviewing the issue absent plain error. See Fed. R. Evid. 103(a); McKeel v. City
of Pine Bluff, 73 F.3d 207, 211 (8th Cir. 1994).
Dr. Huntoon was qualified to testify as an expert in sham peer review,
and HRMC argues that Dr. Huntoon improperly gave opinions as to “whether
HRMC complied with the contractual provisions contained in the Bylaws.”
Docket 291 at 21. But in Dr. Huntoon’s expert disclosure, he identified what
provisions of the Bylaws were implicated, how HRMC violated those provisions,
and how those types of tactics are characteristic of a sham peer review. Docket
62-1 at 39. For example, he identified that no “investigation” as defined in
Section 10.2(e) of the Bylaws took place, that no “Investigating Committee
Report” as required in Section 10.2(f) of the Bylaws was produced, and no
appearance before the Medical Executive Committee as provided under Section
10.2(g) of the Bylaws ever took place. Docket 62-1 at 40. He also stated that
“HRMC violated Section I.C of HRMC Medical Staff Rules and Regulations.” Id.
Approximately six pages of Dr. Huntoon’s expert disclosure detailed what
provisions of the Bylaws were implicated in this case and how HRMC violated
those provisions. Dr. Huntoon testified that, in his opinion, HRMC’s violations
of its Bylaws were indicative of a sham peer review. Id. at 39-45. Because Dr.
Huntoon’s testimony was fully disclosed and relevant to his opinion, there is no
In conclusion, the jury’s award of lost wages and loss of earning capacity
is not prohibited by South Dakota law. And Dr. Huntoon’s testimony was not
outside the scope of his expert disclosure. Thus, there was no miscarriage of
justice and HRMC’s motion for a new trial is denied.
In deciding whether to order remittitur, “the court applie[s] [South
Dakota] substantive law to determine whether the jury’s award was excessive.”
Schaefer v. Spider Staging Corp., 275 F.3d 735, 737 (8th Cir. 2002). “ ‘[T]he role
of the District Court is to determine whether the jury’s verdict is within the
confines set by state law, and to determine, by reference to federal standards
developed under Rule 59, whether a new trial or remittitur should be
ordered.’ ” Id. at 738 (alteration in original) (quoting Browning—Ferris Indus. of
Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 278-79 (1989)). To grant a
remittitur in South Dakota, the jury’s award of compensatory damages “must
be so excessive as to strike mankind, at first blush, as being, beyond all
measure, unreasonable and outrageous, and such as manifestly show the jury
to have been actuated by passion, partiality, prejudice or corruption.” Stormo v.
Strong, 469 N.W.2d 816, 826 (S.D. 1991) (internal quotations and citations
After reviewing all of the evidence, the court finds that the jury’s award of
$586,617 for lost wages and $343,640 for loss of earning capacity is not the
result of passion, partiality, prejudice, or corruption and the award is not
unreasonable or outrageous. Dr. Miller presented expert testimony from a
forensic economist, Don Frankenfeld, and introduced Exhibit 170. See Docket
279. Frankenfeld utilized Dr. Miller’s federal tax returns when calculating her
lost earnings and measured Dr. Miller’s lost earnings from the date of
termination through the date of trial subtracting her actual post-termination
earnings from her actual pre-termination earnings. The jury’s award for Dr.
Miller’s lost wages matched Frankenfeld’s calculations contained in Exhibit
170. Docket 277.
Dr. Miller also presented expert testimony from a recognized professional
in the field of hospital credentialing. The expert testified that Dr. Miller had the
ability to secure privileges as a general surgeon if the reports from HRMC
stating that Dr. Miller surrendered her privileges were not on her record in the
NPDB. Also, two other witnesses testified about how NPDB reports can severely
affect a surgeon’s ability to obtain privileges. And Dr. Miller herself described
the unsuccessful efforts she went through to secure employment after being
terminated from HRMC.
Further, Frankenfeld offered expert opinion testimony about the present
value of Dr. Miller’s probable lost future earnings from the date of trial through
the duration of Dr. Miller’s life expectancy. Dr. Miller also presented evidence
as to Dr. Miller’s mitigation of her damages by offering testimony that wound
care work was the most lucrative alternative form of employment considering
her inability to obtain a position as a surgeon. Frankenfeld’s expert opinion
provided the jury a range of dollar amounts in exhibits 141 and 142 for Dr.
Miller’s future loss based on differing factual findings. The low end of the dollar
amount was $145,423 and the high end of the range was $861,278. So the
jury’s award of $343,640 falls on the lower end of Frankenfeld’s range. Thus,
the court finds that the jury’s award of damages was reasonable and supported
by the evidence.
In conclusion, the court finds that the jury’s award of lost wages and loss
of earning capacity is not prohibited by South Dakota law, Dr. Huntoon’s
testimony was within the scope of his expert disclosure, and the jury’s award of
compensatory damages was supported by the evidence and not excessive.
Thus, HRMC’s Motion for Remittitur or For New Trial (Docket 290) is DENIED.
DATED February 7, 2018.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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