NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
GREG GIBBONS, No. 19-15839
Plaintiff-Appellee, D.C. No. 2:15-cv-02231-GMN-CWH v.
UNION PACIFIC RAILROAD MEMORANDUM* COMPANY,
Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding
Submitted April 2, 2020** Pasadena, California
Before: McKEOWN, N.R. SMITH, and NGUYEN, Circuit Judges.
Union Pacific Railroad Company appeals the district court’s judgment,
entered in favor of Greg Gibbons after a jury trial, on Gibbons’s negligence claim
under the Federal Employers’ Liability Act (“FELA”). We have jurisdiction under
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 28 U.S.C. § 1291, and we affirm in part and reverse in part.
Union Pacific did not file a post-verdict motion for judgment as a matter of
law under Federal Rule of Civil Procedure 50(b). It thus “waived [its] right to
directly challenge the sufficiency of the evidence” and, on appeal, we “assess only
the trial court’s denial of [Union Pacific’s] motion for a new trial [and to alter the
judgment] under Rule 59.” Crowley v. Epicept Corp., 883 F.3d 739, 751 (9th Cir.
2018) (explaining that a “post-verdict motion under Rule 50(b) is an absolute
prerequisite to any appeal based on insufficiency of the evidence” (quoting Nitco
Holding Corp. v. Boujikian, 491 F.3d 1086, 1089 (9th Cir. 2007))).
1. The district court did not abuse its discretion by concluding that Gibbons
had proved each element of his FELA claim. See Experience Hendrix L.L.C. v.
Hendrixlicensing.com Ltd., 762 F.3d 829, 842 (9th Cir. 2014) (Rule 59(a));
Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir. 2001) (Rule 59(e)).
As the district court explained, Gibbons had introduced evidence that supported the
verdict, including: (1) testimony from expert Mark Burns, who described the
“limited load-bearing capacity and structural integrity of the flatcar bridge”; (2)
photographs that showed visible sagging in the center of the bridge prior to its
collapse; and (3) testimony from inspector Randy Winn, who detailed the “limited
nature of [Union Pacific’s] bridge inspections.”
From this evidence, which is much more than an “absolute absence of
2 evidence,” Crowley, 883 F.3d at 751 (quoting Kode v. Carlson, 596 F.3d 608, 612
(9th Cir. 2010)), the jury reasonably could have inferred that Union Pacific should
have known that the bridge posed a potential hazard, see Pierce v. S. Pac. Transp.
Co., 823 F.2d 1366, 1370 (9th Cir. 1987) (“[T]he jury’s power to engage in
inferences is significantly broader [in FELA actions] than in common law
negligence actions [and] [a] reviewing court must uphold a verdict even if it finds
only ‘slight’ or ‘minimal’ facts to support a jury’s findings of negligence.” (citation
omitted) (quoting Mendoza v. S. Pac. Transp. Co., 733 F.2d 631, 633 (9th Cir.
1984))).
2. Union Pacific challenges the jury’s award of $500,000 for future medical
and hospital expenses, $1,500,000 for future lost wages and benefits, $1,500,000
for mental and emotional damages, and $1,500,000 for physical pain and suffering.
We affirm in part and reverse in part.
We affirm the $500,000 damages award for Gibbons’s future medical and
hospital expenses. See Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95
F.3d 1422, 1435 (9th Cir. 1996) (“We must uphold the jury’s finding unless the
amount is grossly excessive or monstrous, clearly not supported by the evidence,
or based only on speculation or guesswork.”). The district court properly
instructed the jury regarding present value, see Monessen Sw. Ry. Co. v. Morgan,
486 U.S. 330, 339–40 (1988), and Union Pacific, not Gibbons, bore the burden of
3 offering competent evidence for discounting, Alma v. Mfrs. Hanover Tr. Co., 684
F.2d 622, 626 (9th Cir. 1982).
The district court did not err by allowing Dr. Dunn to testify regarding future
medical damages. Contrary to Union Pacific’s interpretation of the magistrate
judge’s pre-trial order, the order did not bear on Dr. Dunn’s testimony. The order
denied only Gibbons’s motion to designate an additional expert witness and to
reopen discovery. Lastly, the amount of damages was not “grossly excessive or
monstrous,” Del Monte Dunes, 95 F.3d at 1435, given Dr. Dunn’s testimony
regarding the costs of two likely future surgeries and the likelihood of a third
future surgery, and Gibbons’s testimony that he has been instructed to take a nerve
medication indefinitely.
We also affirm the $1,500,000 award for mental and emotional humiliation
or pain and anguish. The jury received evidence that Gibbons endured mental and
emotional issues after the accident. Gibbons testified that post-accident he was
unhappy and “was probably ornery all the time.” His relationship with his wife,
including their “intimate relationship,” suffered. Gibbons also testified that he is
compelled to take prescription medication even though he is “[d]efinitely anti-
prescription” and he experiences panic symptoms near bridges. We cannot
conclude that “there is a complete absence of probative facts to support the
conclusion reached” by the jury. Lavender v. Kurn, 327 U.S. 645, 653 (1946).
4 And although the award is significant, we have upheld similarly high damages
awards. See, e.g., Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d
493, 513 (9th Cir. 2000) (upholding a $1,000,000 emotional distress damages
award where the claimant testified to “substantial anxiety” as a result of alleged
discrimination).
For similar reasons, we also affirm the $1,500,000 award for physical pain
and suffering. Gibbons testified that he gets headaches for days at a time and
endures back pain and neck issues that, according to Dr. Dunn, likely will persist
even after future surgeries. Because the evidence presented at trial supported the
jury’s finding that Gibbons has suffered and likely will continue to suffer
significant physical issues, we cannot conclude that the award is grossly excessive
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
GREG GIBBONS, No. 19-15839
Plaintiff-Appellee, D.C. No. 2:15-cv-02231-GMN-CWH v.
UNION PACIFIC RAILROAD MEMORANDUM* COMPANY,
Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, District Judge, Presiding
Submitted April 2, 2020** Pasadena, California
Before: McKEOWN, N.R. SMITH, and NGUYEN, Circuit Judges.
Union Pacific Railroad Company appeals the district court’s judgment,
entered in favor of Greg Gibbons after a jury trial, on Gibbons’s negligence claim
under the Federal Employers’ Liability Act (“FELA”). We have jurisdiction under
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 28 U.S.C. § 1291, and we affirm in part and reverse in part.
Union Pacific did not file a post-verdict motion for judgment as a matter of
law under Federal Rule of Civil Procedure 50(b). It thus “waived [its] right to
directly challenge the sufficiency of the evidence” and, on appeal, we “assess only
the trial court’s denial of [Union Pacific’s] motion for a new trial [and to alter the
judgment] under Rule 59.” Crowley v. Epicept Corp., 883 F.3d 739, 751 (9th Cir.
2018) (explaining that a “post-verdict motion under Rule 50(b) is an absolute
prerequisite to any appeal based on insufficiency of the evidence” (quoting Nitco
Holding Corp. v. Boujikian, 491 F.3d 1086, 1089 (9th Cir. 2007))).
1. The district court did not abuse its discretion by concluding that Gibbons
had proved each element of his FELA claim. See Experience Hendrix L.L.C. v.
Hendrixlicensing.com Ltd., 762 F.3d 829, 842 (9th Cir. 2014) (Rule 59(a));
Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir. 2001) (Rule 59(e)).
As the district court explained, Gibbons had introduced evidence that supported the
verdict, including: (1) testimony from expert Mark Burns, who described the
“limited load-bearing capacity and structural integrity of the flatcar bridge”; (2)
photographs that showed visible sagging in the center of the bridge prior to its
collapse; and (3) testimony from inspector Randy Winn, who detailed the “limited
nature of [Union Pacific’s] bridge inspections.”
From this evidence, which is much more than an “absolute absence of
2 evidence,” Crowley, 883 F.3d at 751 (quoting Kode v. Carlson, 596 F.3d 608, 612
(9th Cir. 2010)), the jury reasonably could have inferred that Union Pacific should
have known that the bridge posed a potential hazard, see Pierce v. S. Pac. Transp.
Co., 823 F.2d 1366, 1370 (9th Cir. 1987) (“[T]he jury’s power to engage in
inferences is significantly broader [in FELA actions] than in common law
negligence actions [and] [a] reviewing court must uphold a verdict even if it finds
only ‘slight’ or ‘minimal’ facts to support a jury’s findings of negligence.” (citation
omitted) (quoting Mendoza v. S. Pac. Transp. Co., 733 F.2d 631, 633 (9th Cir.
1984))).
2. Union Pacific challenges the jury’s award of $500,000 for future medical
and hospital expenses, $1,500,000 for future lost wages and benefits, $1,500,000
for mental and emotional damages, and $1,500,000 for physical pain and suffering.
We affirm in part and reverse in part.
We affirm the $500,000 damages award for Gibbons’s future medical and
hospital expenses. See Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95
F.3d 1422, 1435 (9th Cir. 1996) (“We must uphold the jury’s finding unless the
amount is grossly excessive or monstrous, clearly not supported by the evidence,
or based only on speculation or guesswork.”). The district court properly
instructed the jury regarding present value, see Monessen Sw. Ry. Co. v. Morgan,
486 U.S. 330, 339–40 (1988), and Union Pacific, not Gibbons, bore the burden of
3 offering competent evidence for discounting, Alma v. Mfrs. Hanover Tr. Co., 684
F.2d 622, 626 (9th Cir. 1982).
The district court did not err by allowing Dr. Dunn to testify regarding future
medical damages. Contrary to Union Pacific’s interpretation of the magistrate
judge’s pre-trial order, the order did not bear on Dr. Dunn’s testimony. The order
denied only Gibbons’s motion to designate an additional expert witness and to
reopen discovery. Lastly, the amount of damages was not “grossly excessive or
monstrous,” Del Monte Dunes, 95 F.3d at 1435, given Dr. Dunn’s testimony
regarding the costs of two likely future surgeries and the likelihood of a third
future surgery, and Gibbons’s testimony that he has been instructed to take a nerve
medication indefinitely.
We also affirm the $1,500,000 award for mental and emotional humiliation
or pain and anguish. The jury received evidence that Gibbons endured mental and
emotional issues after the accident. Gibbons testified that post-accident he was
unhappy and “was probably ornery all the time.” His relationship with his wife,
including their “intimate relationship,” suffered. Gibbons also testified that he is
compelled to take prescription medication even though he is “[d]efinitely anti-
prescription” and he experiences panic symptoms near bridges. We cannot
conclude that “there is a complete absence of probative facts to support the
conclusion reached” by the jury. Lavender v. Kurn, 327 U.S. 645, 653 (1946).
4 And although the award is significant, we have upheld similarly high damages
awards. See, e.g., Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d
493, 513 (9th Cir. 2000) (upholding a $1,000,000 emotional distress damages
award where the claimant testified to “substantial anxiety” as a result of alleged
discrimination).
For similar reasons, we also affirm the $1,500,000 award for physical pain
and suffering. Gibbons testified that he gets headaches for days at a time and
endures back pain and neck issues that, according to Dr. Dunn, likely will persist
even after future surgeries. Because the evidence presented at trial supported the
jury’s finding that Gibbons has suffered and likely will continue to suffer
significant physical issues, we cannot conclude that the award is grossly excessive
or clearly not supported by the record. See Del Monte Dunes, 95 F.3d at 1435.
We reverse the $1,500,000 award for future lost wages and benefits. Union
Pacific’s argument that the district court “erred in allowing Gibbons’ counsel to
argue that Gibbons had a specific number of years in which he would be unable to
work” is without merit. The district court precluded only Dr. Dunn from testifying
as to Gibbons’s work life capacity; it did not block Gibbons’s counsel from making
such an argument.
But the $1,500,000 award, which anticipated Gibbons’s near-immediate
inability to work in any capacity, was “clearly not supported by the evidence, or
5 based only on speculation or guesswork.” Id. Gibbons admits that he continues to
work without restrictions at a salary of $60,000 to $70,000 per year. Even
assuming a calculation based on the high end of that range, a $1,500,000 award
corresponds to around two decades of missed work.1 And Gibbons’s counsel
recommended only an award of $700,000 in future lost wages and benefits—less
than half of what the jury awarded.
Although there is some evidence in the record from which the jury might
have inferred that, at some point, Gibbons will be forced to leave his Union Pacific
job due to his accident-related injuries, there is no evidence that he faces an
imminent risk of losing his job or that he would be unable to find alternative
employment. Gibbons has already had spinal surgery and continues to work
without restrictions, taking pain medication that mitigates his pain. Therefore,
because the award for future lost wages and benefits is unsupported by the
evidence, we remand for the district court to “give[] [Gibbons] the option of either
submitting to a new trial or of accepting a reduced amount of damage which the
court considers justified.” Fenner v. Dependable Trucking Co., Inc., 716 F.2d 598,
603 (9th Cir. 1983). We otherwise affirm.
Each party shall bear its own costs on appeal.
1 This does not even take into account the jury instruction to use Gibbons’s after-tax income, which would increase the number of years of missed work.
6 AFFIRMED IN PART, REVERSED IN PART.