John Crane, Inc. v. Jones

Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, and
Agee, JJ., and Lacy, S.J.1

JOHN CRANE, INC.

v. Record No. 062164 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
September 14, 2007
WANDA T. JONES, ADMINISTRATRIX
OF THE ESTATE OF GARLAND F. JONES, JR.

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
C. Peter Tench, Judge

Garland F. Jones, Jr. was employed as an outside machinist

at Newport News Shipbuilding & Dry Dock Company from 1963 to

1967. In January 2005, he was diagnosed with malignant

mesothelioma, a fatal cancer in the lining of the lung which is

caused only by exposure to asbestos dust or fibers. On March

22, 2005, Garland and Wanda T. Jones filed an amended motion

for judgment against John Crane, Inc. (Crane) and other

companies, alleging that Crane manufactured and/or sold

asbestos-containing products to Garland Jones' employers, and

that he was exposed to these products while building and

repairing various marine vessels.2 The Joneses sought $10

1
Justice Lacy participated in the hearing and decision of
this case prior to the effective date of her retirement on
August 16, 2007.
2
In addition to John Crane, the complaint named the
following parties as defendants: Garlock Sealing Technologies,
LLC; Dana Corporation; Metropolitan Life Insurance Company;
General Electric Company; Foster-Wheeling USA Corporation;
Warren Pumps, Inc.; Goulds Pumps, Inc.; Borg-Warner
Corporation; Honeywell International, Inc.; Pneumo Abex
million in compensatory damages and $5 million in punitive

damages. Garland Jones died in July of 2005. Wanda Jones, as

administratrix of the estate of Garland F. Jones, Jr., (the

Estate) filed a second amended motion for judgment adding a

wrongful death count.

Following a seven day trial, the jury returned a verdict

in favor of the Estate awarding $10.4 million in damages. The

jury apportioned 34 percent of the damages to Crane, and the

remaining 66 percent equally between two other defendant

companies. The trial court reduced the damage award to $10

million to conform to the amount sought in the motion for

judgment. Crane's damage liability amounted to $3.4 million.

Crane appeals to this Court asserting that the judgment

should be reversed and the case remanded on four separate

grounds. Crane first assigns error to the trial court's

refusal to set aside the jury verdict as excessive. In two

other assignments of error, Crane challenges the trial court's

evidentiary rulings regarding the testimony of a Crane employee

and two of Crane's expert witnesses. Finally, Crane asserts

that the trial court should have applied Virginia law, rather

than general maritime law. For the following reasons, we

Corporation; General Motors Corporation; and Genuine Parts
Company. None of these defendants are parties to this appeal.

2
conclude that there was no error in the challenged rulings and

we therefore will affirm the judgment of the trial court.

DISCUSSION

I. MARITIME LAW

We first address Crane's assertion that the trial court

erred in applying general maritime law to the Estate's action.3

Whether general maritime law applies to this case presents a

question of law which we review de novo.

The application of general maritime law has evolved from a

simple "location test," under which maritime law "govern[ed]

only those torts occurring on the navigable waters of the

United States," Victory Carriers, Inc. v. Law, 404 U.S. 202,

205 (1971), to a location and connection test, initially

established in Sisson v. Ruby, 497 U.S. 358 (1990), and most

recently discussed in Jerome B. Grubart, Inc. v. Great Lakes

Dredge & Dock Co., 513 U.S. 527 (1995). In Grubart, the United

States Supreme Court explained that a party seeking to apply

maritime law to a case

must satisfy conditions both of location and of
connection with maritime activity. A court applying
the location test must determine whether the tort
occurred on navigable water or whether injury
suffered on land was caused by a vessel on navigable
water. The connection test raises two issues. A

3
Under general maritime law, the Estate was allowed to
recover damages for pain and suffering in addition to the
damages authorized by Code § 8.01-52 in a wrongful death
action. Sea-Land Servs. v. Gaudet, 414 U.S. 573, 583 (1974).

3
 court, first, must assess the general features of the
type of incident involved, to determine whether the
incident has a potentially disruptive impact on
maritime commerce. Second, a court must determine
whether the general character of the activity giving
rise to the incident shows a substantial relationship
to traditional maritime activity.

Id. at 534 (internal quotation marks and citations omitted).

As the parties recognize, the location prong of the test

is met in this case because the incident giving rise to Garland

Jones' injury, inhalation of asbestos, occurred while repairing

and constructing ships at the Newport News Shipyards in the

James River. However, according to Crane neither prong of the

connection test is met because the inhalation of asbestos does

not have a potentially disruptive impact on maritime commerce

and because Crane's activity in the manufacture of asbestos-

containing products did not have a substantial relationship to

traditional maritime activity. We disagree.

In applying the first prong of the connection test the

impact of the incident is evaluated "at an intermediate level

of possible generality" in order to determine whether the

incident is "within a class of incidents that posed more than a

fanciful risk to commercial shipping." Grubart, 513 U.S. at

538-39 (citations omitted). The disruptive impact need only be

potential, not actual. Id.

Applying the test enunciated in Sisson and Grubart, other

courts have concluded that exposure to asbestos came within the

4
general category of the risks of unsafe working conditions that

have a potential impact on commercial shipping. In Lambert v.

Babcock & Wilcox, Co., 70 F.Supp.2d 877, 884 (S.D. Ind. 1999),

the court observed that "[u]nsafe working conditions aboard a

vessel have consistently been held to pose a potentially

disruptive impact upon maritime commerce." The Lambert Court

concluded that "asbestos exposure in the boiler room of a ship

– could potentially disrupt maritime commerce by rendering the

boiler room too hazardous to operate." Id. See also Bartel v.

A-C Product Liability Trust, 461 F.Supp.2d 600, 602 (N.D. Ohio

2006) (claim based on merchant seaman's exposure to asbestos

while aboard a vessel was governed under admiralty law); Weaver

v. Hollywood Casino-Aurora, Inc., 255 F.3d 379, 386 (7th Cir.

2001) ("[W]ithout doubt an injury to . . . crew [of a

"commercial boat"] disrupts its participation in maritime

commerce."); Alderman v. Pacific Northern Victor, Inc., 95 F.3d

1061, 1064 (11th Cir. 1996) ("Unsafe working conditions aboard

a vessel under repairs, maintenance, or conversion, therefore,

pose a potentially disruptive impact upon maritime commerce.");

Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1119 (5th Cir.

1995) ("[W]orker injuries, particularly to those involved in

repair and maintenance, can have a disruptive impact on

maritime commerce by stalling or delaying the primary activity

of the vessel.").

5
 Accordingly, we conclude that Garland Jones' inhalation of

asbestos fibers while engaged in the repair and construction of

vessels on navigable waters had the potential to disrupt

maritime commerce. Injury to Garland Jones that occurred

during these activities could potentially slow or frustrate the

work being done on the vessel. Such a result could, in turn,

have a disruptive impact on maritime commerce.4

The second prong of the connection test – whether the

activity giving rise to the incident bears a substantial

relationship to traditional maritime activity – requires a

definition of the relevant activity "not by the particular

circumstances of the incident, but by the general conduct from

which the incident arose." Sisson, 497 U.S. at 364. This

inquiry demands a "broad perspective." Id. In Grubart, the

Supreme Court explained that this inquiry is guided by

principles of proximate causation, and that "[t]here is . . .

no need . . . for imposing an additional nonremoteness hurdle

in the name of jurisdiction." Id. at 538.

We applied these principles in Garlock Sealing

Technologies, LLC v. Little, 270 Va. 381, 384-86, 620 S.E.2d

773, 775-77 (2005), and determined that the defendant's acts

4
We do not address Crane's argument that Garland Jones
worked only on new ship construction which does not have a
potentially disruptive impact on maritime commerce. The record

6
of omission and commission in manufacturing asbestos-containing

material used by Little to create gaskets used on submarines

"had a significant connection with maritime activity," and held

that maritime law applied.

In the case now before us, Crane urges again that the

manufacture and sale of asbestos-containing products into the

stream of commerce is too far removed from traditional maritime

activities to create the necessary relationship. Again we

disagree. The record in this case reflects that during the

time Garland Jones was exposed to asbestos-containing products

manufactured by Crane, Crane marketed gaskets and packing

material directly for the marine industry and advertised its

products for "marine engine and general ship use." Crane also

advertised its products in publications about maritime

activity. This activity bore a substantial relationship to

traditional maritime activities. The fact that Crane did not

directly undertake any activity aboard a maritime vessel does

not obviate this connection.

In summary, for the reasons set out above, we find that

the circumstances of this case satisfied both the location and

connection tests required under Grubart and therefore, the

trial court did not err in applying general maritime law.

shows that Garland Jones' exposure to asbestos occurred while
working on new vessels and repairing existing vessels.

7
 II. TESTIMONY OF TERRENCE MCNAMARA

Crane next asserts that the trial court erred in allowing

the Estate to call Terrence McNamara as a witness "solely for

the purpose of impeachment, when the substance of his testimony

was unchallenged." McNamara was Crane's custodian of records

and the designated corporate representative responsible for

reviewing and certifying responses to discovery propounded upon

Crane from 2000 until June 2004, including discovery in this

case. A number of Crane's responses to interrogatories,

submitted under McNamara's verification, were untruthful. Over

Crane's objection, the trial court allowed the Estate to call

McNamara as an adverse witness to impeach Crane's credibility.

Generally, we review a trial court's decision to admit or

exclude evidence using an abuse of discretion standard and, on

appeal, will not disturb a trial court's decision to admit

evidence absent a finding of abuse of that discretion.

Riverside Hosp. v. Johnson, 272 Va. 518, 529, 636 S.E.2d 416,

421 (2006). While a "trial court has no discretion to admit

clearly inadmissible evidence, a great deal must necessarily be

left to the discretion of the court of trial, in determining

whether evidence is relevant to the issue or not." Id., 636

S.E.2d at 421-22 (internal citations omitted). "Evidence is

relevant if it has any logical tendency to prove an issue in a

case." Goins v. Commonwealth, 251 Va. 442, 461, 470 S.E.2d

8
114, 127 (1996). "[R]elevant evidence may be excluded only if

the prejudicial effect of the evidence outweighs its probative

value." Id.

Crane's primary complaint is based on the legal

proposition that a party may not impeach his own witness.

While we agree that the Estate could not call McNamara for the

sole purpose of impeaching him, see Virginia Electric & Power

Co. v. Hall, 184 Va. 102, 105-06, 34 S.E.2d 382, 383 (1945),

this is not what occurred at trial. Rather, the Estate argued

to the trial court that it intended to call McNamara in order

to show the "pattern of untruthful behavior exhibited by John

Crane." Such a pattern, if it existed, was relevant, to a

primary issue in the case, whether Crane knew or had reason to

know of the health risks posed by the asbestos-containing

products it manufactured. Because McNamara's testimony

concerned an improper discovery verification procedure, it

tended to undermine the credibility of Crane’s assertion that

he employed proper procedures with respect to researching the

dangers posed by asbestos or to disseminating that information

and that Crane was forthcoming with regard to other statements

it made. Thus, McNamara's testimony did have a "logical

tendency" to prove an issue in the case, and we cannot say that

it was irrelevant.

9
 Crane further argues that, because it conceded that

McNamara's actions regarding discovery were improper,

McNamara's testimony did not concern any factual issues in the

case, but was merely "calculated to inflame the passion and

prejudices of the jury." We reject this argument because

first, as stated above, McNamara's testimony was relevant to

the issue of Crane's credibility, and thus did concern a

factual issue in the case. Furthermore, the jury's allocation

of damages among the defendants belies any argument that

McNamara's testimony unduly prejudiced Crane.

Accordingly, we conclude that the trial court did not

abuse its discretion in allowing McNamara to testify.

III. TESTIMONY OF CRANE'S EXPERTS

In its third assignment of error, Crane argues the trial

court erroneously interpreted the disclosure requirement of

Virginia Supreme Court Rule 4:1(b)(4)(A)(i) resulting in a

dramatic and unfair limitation of the expert testimony of Dr.

Victor Roggli and Henry Buccigross. Rule 4:1(b)(4)(A)(i)

states:

A party may through interrogatories require any other
party to identify each person whom the party expects
to call as an expert witness at trial, to state the
subject matter on which the expert is expected to
testify, and to state the substance of the facts and
opinions to which the expert is expected to testify
and a summary of the grounds for each opinion.

10
In reviewing the trial court's decision to exclude expert

testimony, we apply an abuse of discretion standard. Tarmac

Mid-Atlantic, Inc. v. Smiley Block Co., 250 Va. 161, 166, 458

S.E.2d 462, 465 (1995).

A. Dr. Victor Roggli

The trial court sustained the Estate's objection to Dr.

Roggli's testimony regarding his opinion on the amount of

asbestos in the ambient air and its relationship to the cause

of mesothelioma because this opinion was not disclosed pursuant

to Rule 4:1(b)(4)(A)(i). We have not previously examined the

degree of specificity required by Rule 4:1(b)(4)(A)(i).

Nevertheless, any application of this rule begins with

determining whether the opinion at issue was disclosed in any

form. See, e.g., Griffett v. Ryan, 247 Va. 465, 468, 443

S.E.2d 149, 151 (1994) (reviewing trial court decision to allow

expert testimony by first examining content of the pretrial

disclosure).

Crane made the following pretrial disclosure of Dr.

Roggli's testimony:

Dr. Roggli will testify as to the pathological
diagnosis and the testing performed by him and others
at Duke University to determine if a mesothelioma
exists. Dr. Roggli may testify as to the association
between asbestos (including the various types) and
the alleged disease process involving the plaintiff.
Dr. Roggli may testify as to the contribution, if
any, of exposures to John Crane's products and
products of other companies in the causation of

11
 plaintiff's asbestos-related disease. Finally, Dr.
Roggli will testify as to the burden of asbestos
(including the various types) in plaintiff's lungs
and its contribution, if any, in causing plaintiff's
asbestos-related disease if any. Dr. Roggli's
reports have already been or will be provided.

Crane subsequently provided the Estate with a report containing

the results of Dr. Roggli's examination of tissue samples taken

from Garland Jones' lungs. The report did not contain any

reference to levels of asbestos in the ambient air. Crane

argues that in excluding Dr. Roggli's testimony, the trial

court interpreted Rule 4:1(b)(4)(A)(i) too strictly. According

to Crane, Dr. Roggli's opinions including those regarding

asbestos in the ambient air, were "well known" to the Estate

because it questioned Dr. Roggli about the opinions during his

deposition. Thus, even if the disclosures were insufficient,

according to Crane, the error was cured at Dr. Roggli's

deposition.

Nothing in Crane's disclosure reveals that Dr. Roggli

might testify about asbestos in the ambient air. Furthermore,

a party is not relieved from its disclosure obligation under

the Rule simply because the other party has some familiarity

with the expert witness or the opportunity to depose the

expert. Such a rule would impermissibly alter a party's burden

to disclose and impose an affirmative burden on the non-

12
disclosing party to ascertain the substance of the expert's

testimony. We reject this reading of Rule 4:1(b)(4)(A)(i).

Accordingly, the trial court did not abuse its discretion

in ruling that Dr. Roggli's opinion testimony regarding

asbestos in ambient air was inadmissible because Crane failed

to comply with the disclosure requirement of Rule

4:1(b)(4)(A)(i).

B. Henry Buccigross

Prior to trial, Crane disclosed that Buccigross would

offer testimony on, among other topics, his "research and/or

his testing of various asbestos insulation products," including

"Unibestos" and "Kaylo," as well as his research and testing of

Crane products.5 Although the disclosure referenced a report by

Buccigross on his testing of Unibestos and Kaylo, Crane

admitted the report was not attached to the disclosure. The

trial court refused to allow Buccigross to testify about the

tests he had conducted on Kaylo and Unibestos products because

the Estate had not received Buccigross' report relating to this

subject. Crane assigned error to this ruling.

Crane argues, as it did to the trial court, that

regardless of its failure to provide Buccigross' report, the

Estate knew the substance of Buccigross' testimony because the

5
Unibestos and Kaylo were asbestos-containing products of
other manufacturers.

13
Estate's counsel had cross-examined Buccigross "at trial about

his reports going back to the '90s." Crane also pointed out

that the Estate had failed to depose Buccigross or to ask Crane

for representative samples of Buccigross' testimony, either of

which would have allowed the Estate to ascertain the actual

substance of the testimony.

Rule 4:1(b)(4)(A)(i) requires that the substance of

opinions to be rendered be disclosed. Here, while Crane did

disclose the topic of Buccigross' testimony, Crane did not

disclose the substance of Buccigross' opinions in the

disclosure or through Buccigross' report. Crane thus failed to

comply with the Rule and the trial court did not err by

excluding the testimony. As we stated when considering Crane's

challenge to the trial court's ruling on the admissibility of

Dr. Roggli's testimony, an opponent's ability to depose an

expert or familiarity with such expert through prior litigation

does not relieve a party from complying with the disclosure

requirements of Rule 4:1(b)(4)(A)(i).

Crane also argues that the trial court should have allowed

the testimony of both Dr. Roggli and Buccigross because the

Estate admitted that the disclosures regarding Roggli and

Buccigross were "exemplary, in comparison to Dr. Feingold's,"

another of Crane's intended expert witnesses.

14
 The record shows that the Estate's statement regarding the

quality of Crane's disclosures at issue was made as a

comparison to the fact that Crane had not disclosed any of the

expected testimony of Dr. Feingold. The statement cannot be

fairly taken as a concession that Crane complied with the

requirements of the disclosure rule for all purposes.

In summary, we conclude that the trial court did not abuse

its discretion in refusing to allow the testimony at issue

because Crane did not disclose that Dr. Roggli would render an

opinion on asbestos in the ambient air and did not identify the

substance of Buccigross' opinion as required by Rule

4:1(b)(4)(A)(i).

IV. AMOUNT OF THE VERDICT

Crane asserts that the trial court erred in failing to set

aside the verdict because it was excessive when compared to

verdicts in similar cases and based on the facts of this case,

it was the product of passion and prejudice.

Citing our prior decisions in Chesapeake & Ohio Railway

Co. v. Arrington, 126 Va. 194, 101 S.E. 415 (1919), and P.

Lorillard Co. v. Clay, 127 Va. 734, 104 S.E. 384 (1920), Crane

urges us to compare the verdict in this case to the verdicts

rendered in other cases involving similar facts. Crane

acknowledges that this Court has "recently declined to engage

in verdict comparison," but argues that the practice of

15
comparing verdicts does not appear to be "foreclosed" in

Virginia. In the two cases primarily relied upon by Crane the

plaintiffs sought damages for the loss of a limb. In those

cases, the Court looked to verdicts in other cases involving

the same injury as one part of its determination whether the

verdict in the case before it was excessive. Arrington, 126

Va. at 218, 101 S.E. at 423; P. Lorillard, 127 Va. at 756, 104

S.E. at 391.

Since these two cases, however, this Court has routinely

rejected the use of an "average verdict rule" in determining

whether a verdict is excessive. As early as 1925, in Farris v.

Norfolk and Western Railway Co., 141 Va. 622, 126 S.E. 673

(1925), we stated that the rule "cannot be invoked where the

injuries are internal, and have produced a condition of greatly

impaired earning capacity, continuous pain and suffering, and a

dislocated kidney that may or may not produce serious results."

Id. at 626, 126 S.E. at 674.

Subsequent cases did not use an "average verdict rule"

where issues of pain and suffering were involved. Rather, this

Court reviewed the facts and circumstances of each case to

determine whether the verdict was excessive and the product of

jury passion and prejudice or misapprehension of the case.

See, e.g., National Fruit Product Co. v. Wagner, 185 Va. 38,

40-41, 37 S.E.2d 757, 758-59 (1946); Williams Paving Co. v.

16
Kreidl, 200 Va. 196, 204, 104 S.E.2d 758, 764 (1958); Lilley v.

Simmons, 200 Va. 791, 797, 108 S.E.2d 245, 249-50 (1959);

Edmiston v. Kupsenel, 205 Va. 198, 203, 135 S.E.2d 777, 780-81

(1964); Gazette, Inc. v. Harris, 229 Va. 1, 48, 325 S.E.2d 713,

744-45 (1985) (relying on record to find that verdict bore "no

relationship to the loss actually sustained by the plaintiff"

and was excessive); Reel v. Ramirez, 243 Va. 463, 467, 416

S.E.2d 226, 228 (1992) ("we examine the record . . . to

determine if the trial judge abused his discretion" in granting

a remittitur on grounds that verdict was allegedly excessive);

Norfolk Bev. Co. v. Cho, 259 Va. 348, 354-55, 525 S.E.2d 287,

290-91 (2000) (analyzing record to determine jury verdict was

not excessive); Shepard v. Capitol Foundry of Virginia, Inc.,

262 Va. 715, 720-21, 554 S.E.2d 72, 75 (2001) (analyzing

excessiveness of verdict based on the record); Allstate Ins.

Co. v. Wade, 265 Va. 383, 394-95, 579 S.E.2d 180, 186-87 (2003)

(stating that verdict is excessive when it shocks the

conscience of the court and creates impression that jury was

improperly motivated or confused, and examining record to

determine that verdict was not excessive as a matter of law).

The "average verdict rule" was more recently rejected in

Rose v. Jaques, 268 Va. 137, 597 S.E.2d 64 (2004). In that

case, the defendants argued the verdict was excessive in light

of other verdicts in similar cases. Declining to engage in a

17
comparison, we applied an abuse of discretion standard, based

upon the evidence in the record. Id. at 159-60, 597 S.E.2d 77.

See also Government Micro Resources, Inc. v. Jackson, 271 Va.

29, 48-49, 624 S.E.2d 63, 74 (2006). In sum, the "average

verdict rule" is not probative of whether a verdict is

excessive; rather that determination must be made based on the

facts and circumstances of each case.

In addition to urging us to consider verdicts in similar

cases, Crane contends the jury verdict in this case was not

related to the evidence presented. Crane points out that

Garland Jones suffered a stroke in 2001, was diagnosed with

mesothelioma in January 2005, and died six months later, in

June 2005. According to Crane, these facts and the fact that

jury's original award exceeded the damages requested, show that

the jury was motivated by passion or prejudice.

We find nothing in the record to support Crane's

contention that the verdict was not the product of an impartial

decision. At trial, the Estate produced evidence that medical

expenses for Garland Jones totaled $394,857.01 and that his

funeral expenses were $9,678.06. Also admitted was a statement

written by Garland Jones in which he stated he was "devastated"

to learn he had mesothelioma and described his illness as the

"bottom" falling out from underneath him and a "roller coaster

ride." Ashley Higgenbotham, one of Garland Jones' children,

18
testified that after Jones was diagnosed with mesothelioma, he

was "barely mobile" and "very depressed," which was

uncharacteristic for him. Higgenbotham testified that her

father's death in a nursing home was an "absolute nightmare."

Michael Jones, another of Garland Jones' children, testified

that Garland Jones was in the "best health of his life" and

even volunteered for Meals on Wheels after his 2001 stroke.

Michael Jones also described how Garland Jones' physical and

psychological state deteriorated after his diagnosis and until

his death.

The jury also heard evidence that Garland and Wanda Jones

had been married for 41 years and were "very loyal to one

another" and "loved each other very much." Wanda Jones

testified about the pain and sorrow she felt upon her husband's

death.

In addition, the jury heard evidence from Dr. G. Dastgir

Qureshi, Garland Jones' physician, who testified about

mesothelioma in general and about the progression of Garland

Jones' disease. Dr. Qureshi testified about the chemotherapy

performed on Garland Jones and fact that the chemotherapy

eventually caused sepsis and acute renal failure. Dr. Qureshi

also testified about several medical procedures undergone by

Garland Jones, and described Garland Jones' severely impaired

physical state at the time of his death.

19
 The jury was given the following instruction on damages,

without objection from Crane:

If you find for the plaintiff, your verdict shall be
in such sum as will fully and fairly compensate such
plaintiff for her damages. In determining damages to
which she is entitled you shall include, but are not
limited to, any of the following which you believe by
the greater weight of the evidence: One, any pain
and suffering of Garland Jones. Two, any damages for
sorrow, mental anguish and solace, which may include
loss of society, companionship, comfort, guidance,
kindly offices and advice that is suffered by Wanda
Jones as a result of the injury and death of Garland
Jones. Three, compensation to Wanda Jones for the
reasonably expected loss of the services, protection,
care and assistance provided by Garland Jones. Four,
expenses for care, treatment and hospitalization of
Garland Jones that are incident to the injury
resulting in his death. And five, reasonable funeral
expenses of Garland Jones.

Based on this instruction and the evidence presented at

trial, we cannot say the trial court abused its discretion in

determining that the verdict was not excessive and not so out

of proportion to the injuries suffered as to suggest that it

was not the product of a fair and impartial decision.

V. CONCLUSION

For the reasons stated above, we will affirm the judgment

of the trial court.

Affirmed.

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