United States District Court, D. Oregon, Pendleton Division
MATTHEW ALLISON, individual; and TIM NAY, as personal representative for the ESTATE OF SARA E. ALLISON Plaintiffs,
SMOOT ENTERPRISES INC., dba Smoot Brothers Transportation; JAMES DECOU; PETER BARNES; HORIZON TRNSPORT, INC.; and JONATHAN HOGABOOM, Defendants.
OPINION & ORDER
Patricia Sullivan United States Magistrate Judge.
Allison filed his claim for negligence and Tim Nay, as
personal representative of the Estate of Sara Allison
(collectively, “Plaintiffs”) filed a wrongful
death action on behalf of the Estate of Sara Allison against
corporate defendants Smoot Enterprises, Inc. and Horizon
Transport, Inc. and individual defendants employees of the
corporate defendants. The case arose out of a collision that
took place in Eastern Oregon and that caused significant
injuries to Matthew Allison and that resulted in the death of
his wife Sara Allison. A jury trial was held between April 30
and May 10, 2019. Defendants were found to be
jointly liable for Plaintiffs' damages. Defendants
Horizon Transport Inc. and Jonathan Hogaboom have filed a
Motion for a New Trial, or in the Alternative Remittitur
(doc. 185) and challenge the jury's damages award. Oral
argument was held on August 21, 2019. For the following
reasons, the Court DENIES the motion.
jury reached its verdict in this negligence and wrongful
death action on May 10, 2019 and found all named Defendants
jointly liable for Plaintiffs' damages. It awarded
Matthew Allison economic damages of $600, 000 and noneconomic
damages of $7, 000, 000, and awarded the Estate of Sara
Allison economic damages of $2, 383, 463 and noneconomic
damages of $10, 000, 000. It also awarded punitive damages of
$5, 000, 000 against Horizon Transport, Inc. and
Hogaboom(“Horizon”) and $1, 500, 000 against
Smoot Enterprises Inc. and DeCou (“Smoot”). The
Court entered Judgment on June 4, 2019, with offsets for
amounts previously paid by Smoot in settlement. Smoot had
entered into a “Mary Carter” settlement agreement
with Plaintiffs prior to trial, and was dismissed from the
lawsuit post-verdict. Hogaboom and Horizon (hereafter
“Defendants”) now challenge the jury's
damages award as excessive and request this Court to order a
new trial or to reduce the damages amount through remittitur.
Motion for New Trial
argue that they are entitled to a new trial for the following
reasons: (a) Plaintiffs emphasized corporate conduct and
employed “Reptile Theory” and conscience of the
community arguments even though the Court had found these
references to be impermissible; (b) Plaintiffs were allowed
to show an animation to the jury that lacked foundation; (c)
the Court impermissibly allowed Plaintiffs to elicit
testimony from a law enforcement official on Hogaboom's
credibility; and (d) the Court's answer to a jury
question caused the jury to double-count damages.
Rule 59(a) of the Federal Rules of Civil Procedure, a court
“may grant a new trial only if the verdict is contrary
to the clear weight of the evidence, is based upon false or
perjurious evidence, or to prevent a miscarriage of
justice.” Molski v. M.J. Cable, Inc., 481 F.3d
724, 729 (9th Cir. 2007) (quotation marks omitted); see
also Shimko v. Guenther, 505 F.3d 987, 993 (9th Cir.
2007). Unlike a determination under Rule 50, the Court is not
required to view the evidence in the light most favorable to
the non-moving party when considering a motion for new trial
under Rule 59(a). Experience Hendrix, LLC v.
Hendrixlicensing.com Ltd., 762 F.3d 829, 842 (9th Cir.
2014). Instead, the Court “can weigh the evidence and
assess the credibility of the witnesses.” Id.
(citing Kode v. Carlson, 596 F.3d 608, 612 (9th Cir.
2010) (per curiam)).
explained by the Ninth Circuit, after weighing the evidence,
the trial judge faces a difficult task:
On the one hand, the trial judge does not sit to approve
miscarriages of justice. His power to set aside the verdict
is supported by clear precedent at common law and, far from
being a denigration or a usurpation of jury trial, has long
been regarded as an integral part of trial by jury as we know
it. On the other hand, a decent respect for the collective
wisdom of the jury, and for the function entrusted to it in
our system, certainly suggests that in most cases the judge
should accept the findings of the jury, regardless of his own
doubts in the matter. Probably all that the judge can do is
to balance these conflicting principles in light of the facts
of the particular case. If, having given full respect to the
jury's findings, the judge on the entire evidence is left
with the definite and firm conviction that a mistake has been
committed, it is to be expected that he will grant a new
Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d
1365, 1371-72 (9th Cir. 1987). Thus, a trial judge should not
award a new trial unless the court has a definite and firm
conviction that the jury has made a mistake. Id. at
1372. “While the trial court may weigh the evidence and
credibility of the witnesses, the court is not justified in
granting a new trial merely because it might have come to a
different result from that reached by the jury.”
Roy v. Volkswagen of Am., Inc., 896 F.2d 1174, 1176
(9th Cir. 1990) (quotation marks and citation omitted).
Corporate Conduct and Reptile Theory
direct negligence claims against Horizon was dismissed before
trial. In light of this dismissal, both Plaintiffs and
Horizon brought motions in limine to exclude evidence of
corporate conduct. The Court granted these motions, and
Defendants now argue that any evidence or testimony
concerning Horizon's corporate conduct and investigation
of the collision which resulted in the injuries to Plaintiffs
was improper and they are thus entitled to a new trial.
See Defs.' Mot. For New Trial or Remittitur at
2. Defendants also argue that Plaintiff's “Reptile
Theory” arguments were a “cleverly disguised
attempt to introduce impermissible ‘Golden Rule'
arguments.” They contend that this is another basis
for granting their request for a new trial. I disagree.
respect to the corporate conduct references, Defendants'
argument is essentially the following: the Court had agreed
with the parties that references to Horizon's conduct
should be disallowed because Horizon's conduct was not
relevant to the claims before the Court, that Plaintiffs
nevertheless made these references, that these references
inflamed the jury's passions, thus the Court should redo
the trial. See Defs.' Mot. For New Trial or
Remittitur at 24-25. But Defendants fail to explain how such
references constitute impermissible inflaming of passions
sufficient to warrant a new trial. See generally,
Defs.' Mot. For New Trial or Remittitur at 24- 25.
Despite numerous federal trials that take place each year,
Defendants were not able to cite a single case to the Court
where such references led the Court to conclude that the
jury's passions were impermissibly inflamed and to grant
a motion for a new trial. Defendants fail to cite cases where
courts found that less egregious conduct sufficed for a court
to conclude that jury passions were inflamed, which may have
allowed the Court to conclude by inference that the allegedly
impermissible references to Horizon's corporate conduct
warrant the remedy that Defendants request here.
cases cited by Defendants from Ohio and South Carolina state
court stand for the proposition that inflaming the passions
of a jury can be grounds for a new trial. See
Hollingsworth v. Time Warner Cable, 168 Ohio App.3d 658,
685, 861 N.E.2d 580 (2006); see also Branham v. Ford
Motor Co., 390 S.C. 203, 234, 701 S.E.2d 5 (2010).
However, neither case explains why the Court should consider
references to Horizon's conduct to constitute
impermissible inflaming of passions. The same is true about
the Fifth Circuit case cited by Defendants. See Westbrook
v. Gen. Tire & Rubber Co., 754 F.2d 1233 (5th Cir.
1985). None of these cases are Ninth Circuit or Oregon cases
and are not persuasive authority here.
also argue that Plaintiffs improperly tried to elicit local
bias against Horizon, an out-of-state corporation. They cite
Whitehead v. Food Max, 163 F.3d 265, 275 (5th Cir.
1998) for the proposition that emphasizing a defendant's
out-of-state status was sufficient to warrant a new trial.
But a fair reading of Whitehead indicates that the
impermissible references to a corporate defendant's
out-of-state status were far more egregious than the
references Defendants take issue with here. Here are some of
the references by plaintiff's counsel in
Whitehead that the Fifth Circuit reasonably found to
be sufficiently egregious to warrant a new trial:
as a little old lawyer down here in Mississippi, to take
on a national corporation, I knew I had to bring in the
best experienced person in security that I knew"; and
"[n]ow when I, as a lawyer here in Mississippi,
bring a legal action against a national corporation
-having done this a few years-they are tough cases.” .
. . The problem is-way up there in Troy, Michigan-way up
there in Troy, Michigan, where they decide to write a
two or three inch thick loss prevention manual, they
don't think about the customers' safety and security
in the parking lot. Because they are more concerned about
profits and not people.
Whitehead, 163 F.3d at 276-77. The Fifth Circuit
characterized these statements as “blatant appeal to
sectionalism.” Id. at 76. In addition, what
seemed to be particularly concerning for the Fifth Circuit
was plaintiff counsel's “shameless refusal to abide
by the district court's sustaining Kmart's
objections.” Id. Even after the district court
gave repeated curative instructions to remove the taint of
plaintiff counsel's tactics, counsel continued on.
See Id. at 77 (“Immediately after the court
sustained Kmart's objection . . .counsel returned to this
tactic, in total defiance of the district court's ruling
. . . In his rebuttal  notwithstanding the court's
having earlier sustained Kmart's objections,  counsel
returned to this improper tactic”). As the trial judge
for this case, I am not persuaded that Plaintiffs engaged in
conduct that sufficiently resembles the impermissible conduct
at issue in Whitehead.
respect to Defendants' argument that Reptile Theory and
Golden Rule arguments were impermissibly employed, Defendants
argue that the existence of either during Plaintiffs'
closing justifies a new trial. The Reptile Theory originates
from a book by David Ball and Don Keenan. See
Horizon Defs.' Mots. in Limine 23- 24 (doc. 82). It is a
litigation strategy used by plaintiffs' attorneys to
appeal to jurors' “reptilian brains, ” or
that portion of the human brain that triggers survival
instincts. See Taylor Denslow Brewer,
Confronting the Reptile in Virginia, 30 J. Civ.
Litig. 187, 187-88 (2018). Golden Rule arguments, though
somewhat related, are employed when counsel or witnesses
encourage the jury to put themselves in the position of a
party and render a verdict that the jurors would want if they
were in that party's position. See ICTSI Oregon, Inc.
v. Int'l Longshore & Warehouse Union, 2019 WL
1651038, at *21 (D. Or. April 17, 2019).
the Court does not find either of these theories to have been
improperly employed. Plaintiffs agree that Golden Rule
arguments are not permitted. The dispute between the parties
seems to concern whether discussing safety or making
references to the community's conscience is an
impermissible version of the Golden Rule argument. But Ninth
Circuit case law indicates that references to the conscience
of the community are not necessarily problematic. See
People of Guam v. Quichocho, 973 F.2d 723, 727 (9th Cir.
1992) (stating that appeals to the jury to act as a
conscience of the community are not impermissible unless they
are specifically designed to inflame the jury). Even if the
Court were to agree with Defendants that references to being
the conscience of the community were error, Defendants'
argument would also be unconvincing since Defendants'
counsel himself ...