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Allison v. Smoot Enterprises, Inc.

United States District Court, D. Oregon, Pendleton Division

October 11, 2019

MATTHEW ALLISON, individual; and TIM NAY, as personal representative for the ESTATE OF SARA E. ALLISON Plaintiffs,

          OPINION & ORDER

          Patricia Sullivan United States Magistrate Judge.

         Matthew 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.


         The 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.


         I. Motion for New Trial

         Defendants 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.

         Under 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. 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)).

         As 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 trial.

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).

         A. Corporate Conduct and Reptile Theory

         Plaintiffs' 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.”[1] They contend that this is another basis for granting their request for a new trial. I disagree.

         With 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.

         The 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.

         Defendants 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.

         With 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).

         Here, 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 ...

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