Franklin v. Blackmore

352 F.3d 150
CourtCourt of Appeals for the Fifth Circuit
DecidedDecember 22, 2003
Docket02-41527
StatusPublished
Cited by111 cases

This text of 352 F.3d 150 (Franklin v. Blackmore) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Franklin v. Blackmore, 352 F.3d 150 (5th Cir. 2003).

Opinions

CLEMENT, Circuit Judge:

In this case Appellants Lloyd S. Black-more (“Blaekmore”) and New Star Freight Service (“New Star”) contend the district court erred in admitting the testimony of a “grief expert” and in upholding the jury’s damage award to Appellee Frank Vogler (“Mr. Vogler”) for the future mental anguish and loss of society due to the deaths of his wife and young child. In addition, Blaekmore and New Star maintain the district court erred in upholding the jury’s award for conscious pain and suffering on the part of the decedents. We affirm in part, order a remittitur in part, and reverse in part.

I. FACTS AND PROCEEDINGS

Blaekmore, employed by New Star as a truck driver, was driving a tractor-trailer rig south on Highway 69 near Huntington, Texas. Becky Vogler (“Mrs. Vogler”) and her three-year-old daughter Kallie Vogler (“Kallie”) were approaching Blackmore’s rig on Highway 69, driving north. Kallie was in a child-restraint seat in the backseat of Mrs. Vogler’s Honda Accord. Blackmore’s tractor-trailer veered onto the right shoulder, rode the shoulder for some distance, and then came back onto the highway. Blaekmore over-corrected, however, and the truck crossed the center line and jackknifed into Mrs. Vogler’s lane. At some point during these events, Mrs. Vo-gler’s car left her lane of traffic and edged both passenger-side wheels off the pavement. In addition, the Honda’s speed [153]*153slowed to 39 miles per hour.1 The rig first struck the front of Mrs. Vogler’s car. The Honda then rotated around so that the passenger side was hit by the truck. Finally, the tractor-trailer ran over the roof of the car from front to back. Both Mrs. Vogler and Kallie were dead by the time they were removed from their vehicle.

Mrs. Vogler’s husband, Mr. Vogler; Mrs. Vogler’s surviving minor children by her first marriage, Shelby Conway and Clayton Conway (“Shelby and Clayton”); and Mrs. Vogler’s parents, Henry and Debra Franklin (“the Franklins”) filed a wrongful death suit against Blackmore and New Star. Shelby and Clayton settled with Blackmore and New Star prior to trial, and the Franklins settled after the verdict but before the appeal. Only Mr. Vogler’s claims, and more specifically, his damages, are currently at issue. Black-more and New Star do not contest the jury’s finding of liability on appeal.

At trial, in addition to testimony by Mr. Vogler himself, the collective Plaintiffs put forth an expert in thanatology,2 referred to by Blackmore and New Star as a “grief expert.” This expert, Dr. Phyllis Silver-man (“Dr. Silverman”), has a bachelor’s degree in psychology and sociology, a master’s in social work, and a .Ph.D. in public health. She is also licensed as a social worker. She has published twenty-six papers and approximately fifty-two “other” writings in peer-reviewed journals, chapters in books, and complete books. She was a visiting scholar and resident in women’s studies at Brandéis, an adjunct professor at Smith College School for Social Work, and a professor and professor emeritus at the Massachusetts General Hospital Institute of Health Professions. Because she had not interviewed or evaluated the collective Plaintiffs, the district court confined her testimony to general theories of grief and recovery.

After finding Blackmore and New Star liable for the deaths of Mrs. Vogler and Kallie, the jury awarded Mr. Vogler damages both individually and as the representative of the estates of his wife and child. The jury awarded $200,000 to Mrs. Vo-gler’s estate for her pain and mental anguish prior to her death, and $200,000 to Kallie’s estate for her pain and mental anguish prior to her death. Mr. Vogler received $400,000 for his “pecuniary loss, loss of companionship and society, and mental anguish [because of the loss of Mrs. Vogler] that was sustained in the past,” and $1,500,000 for his future suffering in the same capacity, as well as his loss of Mrs. Vogler’s future earnings. He was similarly compensated $200,000 for his loss of companionship and society and mental anguish sustained in the past because of Kallie’s death, and $1,300,000 for his future suffering because of the loss of his daughter. No punitive damages were awarded by the jury. The district court upheld the jury awards against Blackmore and New Star, denying their Motions for New Trial or for Remittitur, and for Partial Judgment as a Matter of Law. Blackmore and New Star timely appeal.

II. STANDARD OF REVIEW

“[T]he question of admissibility of expert testimony ... is reviewable under the abuse-of-discretion standard.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 143, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). [154]*154Although this Court has not ruled specifically on the admissibility of the testimony of grief experts, the admissibility of expert evidence generally is governed by the standard enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), which permits admission of testimony only if it is both relevant and reliable. Id. at 589. Even if the expert testimony was improperly admitted, “we next review the error under the harmless error doctrine, affirming the judgment, unless the ruling affected substantial rights of the complaining party.” Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir.2003).

Blackmore and New Star characterize the future damages awarded to Mr. Vogler as excessive, entitling Blackmore and New Star to either a new trial or remittitur. When a jury’s findings are not being attacked directly, but instead are challenged through a district court’s decision not to grant a new trial or remittitur, the standard of review is one of abuse of discretion. Esposito v. Davis, 47 F.3d 164, 167 (5th Cir.1995). “[TJhere is no abuse of discretion denying a motion for new trial unless there is a complete absence of evidence to support the verdict.” Id.

We give special solicitude to findings of damages for grief and emotional distress, in large part

[bjecause the assessment of damages for grief and emotional distress is so dependent on the facts and is so largely a matter judgment, we are chary of substituting our views for those of the trial judge. He has seen the parties and heard the evidence; we have only read papers. The jury’s assessment of damages is even more weighted against appellate reconsideration, especially when ... the trial judge has approved it.

In re Air Crash Disaster Near New Orleans, La. on July 9, 1982, 767 F.2d 1151, 1155 (5th Cir.1985). . It is under this narrow review that the jury’s awards to Mr. Vogler must be evaluated.

On the issue of whether damages should be awarded at all, this Court treads lightly upon jury verdicts, as the standard of review is very deferential.3

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352 F.3d 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franklin-v-blackmore-ca5-2003.