Cromwell v. Wal-Mart Stores Inc ( 2002 )


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  •                  IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    __________________________
    No. 02-30035
    Summary Calendar
    __________________________
    R.H. CROMWELL,
    Plaintiff-Appellee-Cross-Appellant
    versus
    WAL-MART STORES, INC., etc., ET AL,
    Defendants
    WAL-MART STORES, INC., doing business as Sam’s Wholesale Club;
    KLI, INC., formerly known as Keller Ladders, Inc.,
    Defendants-Appellants-Cross-Appellees
    ___________________________________________________
    Appeals from the United States District Court
    For the Western District of Louisiana, Monroe Division
    (No. 99-0480)
    __________________________________________________
    August 9, 2002
    Before HIGGINBOTHAM, SMITH and CLEMENT, Circuit Judges.
    PER CURIAM:*
    A jury awarded plaintiff R.H. Cromwell approximately $200,000
    in damages for injuries he suffered in a fall from a stepladder
    manufactured by defendant KLI, Inc. and sold by defendant Wal-Mart
    Stores, Inc. The District Court granted defendants’ motion for a
    remittitur,    reducing   the   award   by   almost   half,   or   in   the
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
    alternative, new trial. In this appeal, defendants challenge the
    trial court’s decision to admit testimony from plaintiff’s expert
    and the sufficiency of the evidence at trial. Plaintiff challenges
    the remittitur and the sufficiency of the evidence supporting his
    comparative fault. We find no reversible error on either challenge
    and AFFIRM for the foregoing reasons.
    I. Background Facts and Procedural History
    While welding a shed from atop a fiberglass stepladder on
    February 12, 1998, Cromwell fell to the ground, became entangled in
    the stepladder, and injured his shoulder. A rivet attaching a
    spreader bar to the corresponding front rail had torn through the
    rail. He brought this lawsuit against defendants, alleging that the
    ladder was defectively designed. Cromwell’s expert, mechanical
    engineer Dr. Leighton Sisson, submitted a report and testified that
    the ladder twisted in a counter-clockwise direction (viewed from
    above). In other words, the rear rails shifted with respect to the
    front rails, a phenomenon known as “racking.” Sisson testified that
    the racking was caused by a defective joint connecting the spreader
    bar to the front rail; that the portion of the front rail connected
    to the joint was bearing too much weight; and that the defect could
    be remedied by either fitting the joint with a larger washer, to
    spread to load, or by thickening the rail.
    The jury found that plaintiff’s injuries warranted $300,000 in
    general damages and $27,185.47 in medical expenses. But, they also
    determined that Cromwell was 35 per cent at fault and reduced his
    2
    award accordingly. The trial judge ordered a remittitur, lowering
    the general damages amount to $150,000, or in the alternative, a
    new trial. Plaintiff did not respond and the remittitur took
    effect.
    II. Expert Testimony
    Expert opinion testimony is admissible if it is helpful to the
    jury in understanding the evidence or determining a fact in issue.
    FED. R. EVID. 702. Federal Rule of Evidence 702 and Daubert v.
    Merrell Dow Phamaceuticals, Inc., 
    509 U.S. 579
    (1993) establish
    that federal trial judges are to serve as gatekeepers by excluding
    the testimony of experts offering “junk science.” In particular,
    the trial judge must consider whether “(1) the testimony is based
    upon sufficient facts or data, (2) the testimony is the product of
    reliable principles and methods, and (3) the witness has applied
    the principles and methods reliably to the facts of the case.” FED.
    R. EVID. 702.
    We reverse the admission of expert testimony only for abuse of
    discretion. See Rushing v. Kansas City Southern Ry. Co., 
    185 F.3d 496
    , 505   (5th   Cir.   1999).   “A       trial   court’s   ruling   regarding
    admissibility of expert testimony is protected by an ambit of
    discretion and must be sustained unless manifestly erroneous.”
    Satcher v. Honda Motor Co., 
    52 F.3d 1311
    , 1317 (5th Cir. 1995)
    (quoting Christophersen v. Allied-Signal Corp., 
    939 F.2d 1106
    , 1109
    (5th Cir. 1991)).
    3
    Appellants assert that it was an abuse of discretion to
    qualify Sisson as an expert because he had never worked in the
    ladder-making industry and had never published research on ladders
    or    ladder   joints.     The   trial   judge       concluded     that   Sisson,       an
    engineering         consultant   and   former        engineering    professor,      was
    qualified      to    evaluate    the   relatively        simple    structure       of   a
    stepladder.     Sisson     testified     that    he     had   designed      mechanical
    components far more complicated than stepladders. Qualifying Sisson
    as an expert was not an abuse of discretion.
    Appellants argue that it was abuse of discretion to admit
    Sisson’s testimony, over objection, because Sisson did not perform
    any tests on the accident ladder (because it was broken) nor other
    ladders of the same make. Accordingly, he could not have known
    whether the force of Cromwell’s weight could have cause the break,
    or whether it must have been some other, greater force. In other
    words, appellants argue that Sisson improperly “assumed that the
    bar rivet was torn through the rail while Cromwell was standing on
    the    ladder.”       However,   experts       are    permitted     to    assume    the
    underlying facts that form the basis for their opinions. See
    
    Daubert, 509 U.S. at 592
    (“[A]n expert is permitted wide latitude
    to offer opinions, including those that are not based on firsthand
    knowledge      or    observation.”).     Sisson’s       report     states    that   his
    conclusions are based on Cromwell’s own statements, indicating,
    quite properly, that his conclusions assume that Cromwell was atop
    4
    the ladder when it fell—— a fact the jury apparently believed from
    the other testimony.
    Appellants also assert that it was an abuse of discretion to
    admit the testimony of Sisson, over objection, once it became known
    that Cromwell had changed his account of the facts. At trial,
    Cromwell gave a different account of his position on the ladder
    than    he   had   given   at   his   deposition.    Cromwell     admitted   his
    reassessment, and defendants’ counsel exploited that fact on cross-
    examination.       Appellants    assert     that    Cromwell’s    story-change
    triggered a duty, under Federal Rule of Civil Procedure 26(e), to
    amend   Sisson’s     report;    and   since   it    never   was   amended,   his
    testimony should have been excluded, as required by Federal Rule of
    Civil Procedure 37(c). Review of the record reveals that Sisson’s
    assessment that the stepladder was defective did not depend on the
    exact position of the defendant or the stepladder. His report and
    testimony were consistent in concluding simply that excessive
    racking had occurred. It was up to the jury to determine, looking
    to other evidence, whether Cromwell was on the ladder, and whether
    he had put himself in a dangerous position. We find no abuse of
    discretion in the trial court’s overruling defendants’ objections
    to Sisson’s testimony.
    III. Sufficiency of the Evidence
    Appellants argue that there was insufficient evidence to
    support the jury’s award, and that the trial judge should have
    granted a post-trial judgement as a matter of law, or a new trial.
    5
    We review a sufficiency of the evidence challenge for abuse of
    discretion. Dixon v. Int’l Harvester Co., 
    754 F.2d 572
    , 586 (5th
    Cir. 1985).    “We review ‘the evidence in its strongest light in
    favor’ of the plaintiffs, giving them ‘the advantage of every fair
    and   reasonable   inference      which   the   evidence    justifies.’”      See
    Bartley v. Euclid, Inc., 
    180 F.3d 175
    , 179 (5th Cir. 1999) (en
    banc) (citations omitted).
    It was reasonable for the jury to believe Cromwell’s testimony
    that the ladder buckled from under him. And it was also reasonable
    for   the   jury   to   believe    Cromwell’s     expert,    and     disbelieve
    defendants’ expert, that the ladder was defective and could have
    been made more safe by simply adding a larger washer. See LA. REV.
    STAT. § 9:2800.56. The evidence was sufficient to support the jury’s
    determination.
    Cromwell asserts that there was insufficient evidence to
    support the jury’s decision to apportion him 35 per cent of the
    fault. However, he conceded at trial that while on the ladder he
    was “overreaching” and in an “unsafe position.” The evidence was
    sufficient to support his comparative fault.
    IV. Remittitur
    The decision to grant a remittitur is in the sound discretion
    of the trial judge and is reviewed for abuse of discretion. See
    Denton v. Morgan, 
    136 F.3d 1038
    , 1046 (5th Cir. 1998). Under
    Louisiana   law,   “much   discretion      is   left   to   the...    jury”    in
    6
    determining general damages. LA. CIV. CODE       ART.   2324.1. “Only after
    a determination that the trier of fact has abused its ‘much
    discretion’ is a resort to prior awards appropriate and then only
    for the purpose of determining the highest or lowest point which is
    reasonably within that discretion.” See Duncan v. Kansas City
    Southern Ry. Co., 
    773 So. 2d 670
    , 682 (La. 2000) (citation omitted).
    In sum, we must determine whether the trial court abused its
    discretion by determining that the members of the jury abused their
    discretion. We conclude that it did not.
    Cromwell cites Detraz v. Hartford Accident & Indemnity Co.,
    
    647 So. 2d 576
    (La. Ct. App. 1994), in which an $800,000 general
    damages award was upheld, in part because of Detraz’ loss of
    enjoyment   of   life.   The   analogy   to   Detraz    is   not   persuasive,
    however, because the large award was attributable to Detraz’ severe
    injuries: “a fractured and dislocated left hip, a dislocated right
    shoulder, with a torn rotator cuff, a deep laceration to the left
    arm, a fractured sternum, fractured ribs, and abrasions to the
    head.”   
    Id. at 578.
    Detraz endured a “grueling month long hospital
    stay” and permanent impairments. 
    Id. at 580.
    The trial judge discovered that the highest award for a
    shoulder injury comparable to Cromwell’s was $150,000, see J.B.
    Saucier v. Players Lake Charles, 
    751 So. 2d 312
    , 320 (La. Ct. App.
    2000), and reduced Cromwell’s award accordingly. This comports with
    the Louisiana Supreme Court’s instructions to look to prior awards
    7
    for the outer bounds of jury discretion, see 
    Duncan 773 So. 2d at 682
    , and was not an abuse of the trial court’s discretion.
    V. Conclusion
    The judgment of the district court is AFFIRMED.
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