United States District Court, D. Nebraska
DAVID T. RUSSELL, Plaintiff,
EDWARD R. ANDERSON, Defendant.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge.
17, 2019, the jury returned a verdict in favor of Plaintiff,
David Russell, on his negligence claim against Defendant,
Edward Anderson, and awarded Plaintiff damages in the amount
of $7, 000.00. See Filing 126. Judgment was entered
in accordance with the jury's verdict that same date.
See Filing 128.
13, 2019. Plaintiff filed a motion for a new trial “on
the limited issue of the nature and extent of his
damages.” Filing 142. The motion for new trial is now
fully briefed, and is ripe for determination.
authority to grant a new trial is within the discretion of
the district court.” Gray v. Bicknell, 86 F.3d
1472, 1480 (8th Cir. 1996); Fed.R.Civ.P. 59(a)(1). “A
new trial is appropriate when the first trial, through a
verdict against the weight of the evidence, an excessive [or
inadequate] damage award, or legal errors at trial, resulted
in a miscarriage of justice.” Id.
allegedly erroneous evidentiary ruling does not warrant a new
trial unless the [admission or exclusion of] evidence was so
prejudicial that a new trial would likely produce a different
result.” Burris v. Gulf Underwriters Ins. Co.,
787 F.3d 875, 880 (8th Cir. 2015) (quoting Diesel Mach.,
Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 833 (8th
Cir. 2005)). Similarly, giving an allegedly erroneous jury
instruction will justify a new trial “only where the
error affects the substantial rights of the parties.”
Bamford, Inc. v. Regent Ins. Co., 822 F.3d 403, 410
(8th Cir. 2016) (quoting Bauer v. Curators of the Univ.
of Mo., 680 F.3d 1043, 1044 (8th Cir. 2012)). A new
trial will be ordered only “if the error misled the
jury or had a probable effect on its verdict.”
Id. (quoting Acuity v. Johnson, 776 F.3d
588, 596 (8th Cir. 2015)).
the appropriateness of a new trial is a federal procedural
question decided by reference to federal law, in determining
whether a state law claim damage award is excessive [or
inadequate], state case law guides [the] inquiry.”
Niemiec v. Union Pac. R.R. Co., 449 F.3d 854, 858-59
(8th Cir. 2006) (quoting Sanford v. Crittenden Mem'l
Hosp., 141 F.3d 882, 884 (8th Cir. 1998)). Under
Nebraska law, “[a]n award of damages may be set aside
as excessive or inadequate when, and not unless, it is so
excessive or inadequate as to be the result of passion,
prejudice, mistake, or some other means not apparent in the
record.” Roth v. Wiese, 716 N.W.2d 419, 436
(Neb. 2006). “Where the amount of damages allowed by a
jury is clearly inadequate under the evidence, it is error
for the trial court to refuse to set the verdict
aside.” Christian v. Smith, 759 N.W.2d 447,
463 (Neb. 2008).
respect to alleged errors occurring at trial, the court
stands by its evidentiary rulings and jury instructions, and,
with the exception of the three limiting instructions that
were given to the jury during the direct examination of
Plaintiff's expert, does not believe any further
explanation is necessary because the record speaks for
itself. The purpose of the limiting instructions was to
provide jurors with a proper understanding of the legal basis
for the court's overruling of Defendant's objections
to the expert's testimony on causation, so they would not
be misled into thinking they were required to accept the
expert's opinions at face value. A judge may properly comment
on the presentation of evidence to exercise control over a
trial and to conduct the trial efficiently. Mitchell v.
Kirk, 20 F.3d 936, 937 (8th Cir. 1994) (citing
Harris v. Steelweld Equip. Co., Inc., 869 F.2d 396,
401-02 (8th Cir.1989)); see Tweedle v. State Farm Fire
& Cas. Co., 202 Fed.Appx. 934, 939 (8th Cir. 2006)
(unpublished) (“A trial judge is given
‘considerable' discretion to comment on the
evidence at trial.”) (quoting Billingsley v. City
of Omaha, 277 F.3d 990, 997 (8th Cir. 2002)).
court's instructions concerning the weight to be given to
expert testimony, even if deemed overly repetitious, are not
likely to have misled the jury or affected its verdict. The
jurors were instructed at the outset of the trial that
“[y]ou should not take anything I may say or do during
the trial as indicating what I think of the evidence or what
I think your verdict should be” (Filing 104, p. 3), and
again in the final jury instructions that “[n]either in
these instructions nor in any ruling, action or remark that I
have made during the course of this trial have I intended to
give any opinion or suggestion as to what your verdict should
be” (Filing 119, p. 3). It may also be noted that
Plaintiff joined with Defendant in requesting that the jury
be given an instruction regarding expert testimony (Filing
94, p. 2), and that Plaintiff had no objection to the court
giving Instruction No. 5 in the final jury instructions
(Filing 119, p. 6).
respect to the amount of damages awarded, the jury obviously
concluded that Plaintiff's proof of causation was, for
the most part, insufficient. Considering the record as a
whole, this was not an unreasonable conclusion for the jury
to have reached. While the Nebraska Supreme Court has
“held verdicts in personal injury cases to be
inadequate as a matter of law where the amount was in
irreconcilable conflict with stipulated or uncontested
damages, ” Reiser v. Coburn, 587 N.W.2d 336,
342 (Neb. 1998), that is not the situation presented here.
awarding damages, the fact finder is not required to accept a
party's evidence of damages at face value, even though
that evidence is not contradicted by evidence adduced by the
party against whom the judgment is to be entered. Generally,
a jury is entitled to determine what portion of a claimed
injury was proximately caused by the incident and what
portion of the medical bills was reasonably required.”
Springer v. Bohling, 643 N.W.2d 386, 395 (Neb. 2002)
(citations omitted); see Jones v. Meyer, 594 N.W.2d
610, 614 (Neb. 1999) (holding that the jury could have
reasonably concluded that the evidence did not support a
finding that all of the plaintiff's medical expenses were
a result of the accident); Hausman v. Cowen, 601
N.W.2d 547 (Neb. 1999) (holding the evidence was sufficient
to support the jury's damage award of $10, 000 for
personal injuries sustained in a motor vehicle collision,
rather than $2 million which the plaintiff had requested);
Schneider v. Chavez-Munoz, 616 N.W.2d 46, 57
(Neb.App. 2000) (affirming judgment entered on the jury's
$0 damage award even though the plaintiff was granted summary
judgment on the issue of liability and the parties stipulated
that she incurred $7, 691.58 in medical expenses); Holden
v. Wal-Mart Stores, Inc., 608 N.W.2d 187 (Neb. 2000)
(the jury's finding that the plaintiff sustained only $6,
000 in damages was not the result of a mistake, but the
result of conflicting evidence at trial; a subsequently
incurred medical bill of at least $25, 000 could be
attributed to a preexisting condition); Austin by Austin
v. Timperley, No. A-12-933, 2014 WL 1229550, at *4-5
(Neb.App. Mar. 25, 2014) (unpublished) (affirming judgment
entered on the jury's damage award of $1, 466 in medical
expenses, rather than $32, 828.78 as claimed by the
plaintiff); Almond v. Reeves, No. A-15-659, 2016 WL
3964899, at *8-10 (Neb.App. July 19, 2016) (unpublished)
(trial court did not abuse its discretion in denying the
plaintiff's motion for new trial on the issue of damages
where the jury awarded $307 for medical expenses, rather than
$2, 006 that was claimed).
the jury returned a general verdict, which Plaintiff had
requested (Filing 96, p. 9), it cannot be determined what
portion, if any, of the $7, 000.00 damage award was for
medical bills, as opposed to compensation for physical
injuries or pain and suffering. The jury was instructed that it
could consider each of these things in determining its damage
award (Filing 119, p. 12). Non-economic damages are
“highly subjective” and should be committed to
the sound discretion of the jury. Eckerberg v.
Inter-State Studio & Publ'g Co., 860 F.3d 1079,
1088 (8th Cir. 2017) (quoting Hudson v. United Sys. of
Ark., Inc., 709 F.3d 700, 705 (8th Cir. 2013)).
argues that the jury's damage award “shocks the
conscience” when it is compared to a settlement offer
that Defendant made shortly before trial (Filing 152-1), but
the court gives no weight to this evidence. See Fed.
R. Evid. 408(a)(1) (evidence of offering a valuable
consideration in attempting to compromise a disputed claim is
not admissible to prove the validity or amount of the claim).
summary, there was no miscarriage of justice in this case.
Plaintiff has not shown that any evidence was erroneously
excluded or admitted, or that the jury was not properly
instructed. The ...