IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-60477
Summary Calendar
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FRANCIS RAWLINGS,
Plaintiff-Appellant,
VERSUS
NATIONAL PIZZA COMPANY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Mississippi
(3:97-CV-278-L-N)
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May 4, 1999
Before SMITH, WIENER, and PARKER, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Francis Rawlings appeals on the ground that the jury verdict
returned in his favor is insufficient and that the district court
erred in using a modified Allen charge instructing the jury to
continue deliberations. We affirm.
I.
A driver for National Pizza Company (“NPC”) hit Rawlings in a
*
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should not be published and is not precedent except under the limited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.
side-impact collision. Before the accident, Rawlings appeared to
be in fine health. He worked in a physically demanding job and
maintained a vigorous exercise regimen. After the accident, he
began experiencing pain in his neck and back. He saw a physician
practicing family medicine, Dr. Willie MacArthur, who began
treating him for muscle spasms and pain. When the pain did not go
away, he saw Dr. Katharine A. Thompson, who diagnosed a bulging
disc, causing numbness, pain and decreased motor strength. She
also detected scoliosis. Rawlings incurred medical expenses
exceeding $16,000.
Rawlings brought suit in state court against NPC,1 which
removed to federal court. He sought damages for his medical
expenses, future disability, and pain and suffering. At trial,
Dr. Thompson stated that, in her opinion, the pain and injuries
stemmed from the accident.
NPC did not contest its responsibility for the driver but
argued that it was not liable for Rawlings's medical problems.
Dr. Robert A. McGuire, an orthopedic surgeon at the University
Medical Center in Jackson, Mississippi, saw Rawlings once for an
independent medical exam. He testified that, unlike Thompson, he
believed Rawlings's problems had degenerative roots and the car
accident did not cause them and, at most, aggravated them.
The jury reported that it was deadlocked. The court gave a
modified Allen instruction directing it to continue deliberating,
1
Rawlings also sued the driver of the vehicle, but the parties settled
before trial.
2
whereupon the jury awarded $20,000.
II.
A.
Rawlings contends that the court should have granted his
motion for a new trial because the verdict is against the great
weight of the evidence. He suggests that the verdict indicates the
jury found NPC liable but that, because he incurred over $16,000 in
uncontradicted medical expenses, the jury obviously awarded
insufficient damages for future disability and pain and suffering.
He contends that the jury must have reached an impermissible
compromise verdict, meriting a new trial.
The district court has discretion to grant a new trial for an
inadequate verdict, but only if the verdict is against the great
weight, not merely the preponderance, of the verdict. See Jones v.
Wal-Mart Stores, Inc., 870 F.2d 982, 986 (5th Cir. 1989). This
high standard protects the jury's domain. Indeed, a court should
not invade the jury's province to determine damages unless an award
is shockingly inadequate. See Taylor v. Green, 868 F.2d 162, 164
(5th Cir. 1989).
We will not reverse the denial of a motion for a new trial
absent “a clear showing of abuse of discretion.” Hidden Oaks Ltd.
v. City of Austin, 138 F.3d 1036 (5th Cir. 1998). In fact, our
review is even more deferential to the district court when, as
3
here, it agrees with the jury.2 To succeed, Rawlings must
“demonstrate an absolute absence of evidence to support the jury's
verdict, thus indicating that the trial court had abused its
discretion in refusing to find the jury's verdict contrary to the
great weight of the evidence.” Hidden Oaks, 138 F.3d at 1049
(quotations omitted).
Rawlings has not carried this burden. He relies primarily on
the fact that the total damages barely exceeds his compensatory
damages. He claims this indicates an inconsistency between the
jury's finding of liability on NPC's part and its assessment of
damages, an inconsistency that must have resulted from a compromise
among jurors to reach a verdict.
We disagree. Dr. McGuire testified that he believed the pain
stemmed from a pre-existing degenerative condition. But this
testimony did not demand an all-or-nothing verdict. McGuire
explicitly left open the possibility that the accident had
aggravated this condition. The jury could have found that the
accident accelerated or magnified the condition's painful symptoms
but was by no means its sole cause. Such a finding would result in
awarding partial damages, even without a compromise verdict.3 This
2
See Jones, 870 F.2d at 982; Ham Marine, Inc. v. Dresser Indus., Inc.,
72 F.3d 454, 462 (5th Cir. 1995) (“Moreover, review and approval of the verdict by
the trial judge tips the scale even more heavily against appellate
reconsideration.”).
3
See also Haywood v. Collier, 724 So. 2d 1105, 1109 (Miss. App. 1998)
(affirming denial of additur/new trial where verdict less than compensatory
damages, relying in part on evidence of plaintiff's pre-existing condition). The
cases on which Rawlings relies are not to the contrary. In Pham v. Welter,
542 So. 2d 884 (Miss. 1989), the court granted additur to an inadequate award.
But the injuries undoubtedly stemmed from the car accident; the only question was
who was responsible for that accident. See id. at 887-89. By finding the
4
evidence sufficiently supports the verdict.
B.
Rawlings contends that the court erred in delivering a
modified Allen charge.4 He avers that the charge must have been
coercive, essentially mandating that the jury reach a verdict, and
resulted in the compromise verdict. He again seeks a new trial.
We review for abuse of discretion. See United States v.
Winters, 105 F.3d 200, 203 (5th Cir. 1997). Because Rawlings did
not object to the instruction, we will find an abuse of discretion
only if the court plainly erred, a challenging standard.5
Courts may give a modified version of the Allen charge if the
circumstances are not coercive and the content of the charge is not
prejudicial. See Winters, 105 F.3d at 203; United States v. Heath,
970 F.2d 1397, 1406 (5th Cir. 1992). Contrary to Rawlings'
suggestion, there is nothing coercive about the instruction given
here. In fact, the court asked the jury to deliberate only another
thirty minutes, with the promise of releasing them then if they had
defendant liable, the jury could not ignore the substantial evidence of damages
and award only part of them. Id. at 889. In James v. Jackson, 514 So. 2d 1224,
1227 (Miss. 1987), the court affirmed an additur, but that is a situation much
different from the instant one. Furthermore, the jury's verdict was less than
a quarter of the compensatory damages proven, and the additur only doubled the
verdict; the court rejected the cross-appeal seeking a greater additur, because
the plaintiff had a pre-existing condition. See id.
4
An Allen charge, instructing the jury to continue deliberating, is known
as such after Allen v. United States, 164 U.S. 492, 501-02 (1896).
5
See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1424 (5th Cir.1996)
(en banc) (citations omitted); see also United States v. Calverley, 37 F.3d 160,
162-64 (5th Cir. 1994) (en banc) (holding that court plainly errs when it commits
an error that is plain that affects substantial rights and would seriously affect
the fairness, integrity, or public reputation of judicial proceedings if
uncorrected).
5
not made any progress. The jury did continue to deliberate for a
little over an hour before successfully reaching a verdict.
Rawlings has not pointed to anything prejudicial in the
instruction, and nor do we find anything wrong with it.
Importantly, we find nothing in the instruction that might have
misled the jury into returning a compromise verdict. In fact, the
court reiterated that any decision must be reached unanimously.
The court did not plainly err in giving the instruction; hence, it
did not abuse its discretion in denying a new trial.
AFFIRMED.
6