IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 02-30035
Summary Calendar
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R.H. CROMWELL,
Plaintiff-Appellee-Cross-Appellant
versus
WAL-MART STORES, INC., etc., ET AL,
Defendants
WAL-MART STORES, INC., doing business as Sam’s Wholesale Club;
KLI, INC., formerly known as Keller Ladders, Inc.,
Defendants-Appellants-Cross-Appellees
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Appeals from the United States District Court
For the Western District of Louisiana, Monroe Division
(No. 99-0480)
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August 9, 2002
Before HIGGINBOTHAM, SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
A jury awarded plaintiff R.H. Cromwell approximately $200,000
in damages for injuries he suffered in a fall from a stepladder
manufactured by defendant KLI, Inc. and sold by defendant Wal-Mart
Stores, Inc. The District Court granted defendants’ motion for a
remittitur, reducing the award by almost half, or in the
*
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this opinion should not be published and is not precedent except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.
alternative, new trial. In this appeal, defendants challenge the
trial court’s decision to admit testimony from plaintiff’s expert
and the sufficiency of the evidence at trial. Plaintiff challenges
the remittitur and the sufficiency of the evidence supporting his
comparative fault. We find no reversible error on either challenge
and AFFIRM for the foregoing reasons.
I. Background Facts and Procedural History
While welding a shed from atop a fiberglass stepladder on
February 12, 1998, Cromwell fell to the ground, became entangled in
the stepladder, and injured his shoulder. A rivet attaching a
spreader bar to the corresponding front rail had torn through the
rail. He brought this lawsuit against defendants, alleging that the
ladder was defectively designed. Cromwell’s expert, mechanical
engineer Dr. Leighton Sisson, submitted a report and testified that
the ladder twisted in a counter-clockwise direction (viewed from
above). In other words, the rear rails shifted with respect to the
front rails, a phenomenon known as “racking.” Sisson testified that
the racking was caused by a defective joint connecting the spreader
bar to the front rail; that the portion of the front rail connected
to the joint was bearing too much weight; and that the defect could
be remedied by either fitting the joint with a larger washer, to
spread to load, or by thickening the rail.
The jury found that plaintiff’s injuries warranted $300,000 in
general damages and $27,185.47 in medical expenses. But, they also
determined that Cromwell was 35 per cent at fault and reduced his
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award accordingly. The trial judge ordered a remittitur, lowering
the general damages amount to $150,000, or in the alternative, a
new trial. Plaintiff did not respond and the remittitur took
effect.
II. Expert Testimony
Expert opinion testimony is admissible if it is helpful to the
jury in understanding the evidence or determining a fact in issue.
FED. R. EVID. 702. Federal Rule of Evidence 702 and Daubert v.
Merrell Dow Phamaceuticals, Inc., 509 U.S. 579 (1993) establish
that federal trial judges are to serve as gatekeepers by excluding
the testimony of experts offering “junk science.” In particular,
the trial judge must consider whether “(1) the testimony is based
upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts of the case.” FED.
R. EVID. 702.
We reverse the admission of expert testimony only for abuse of
discretion. See Rushing v. Kansas City Southern Ry. Co., 185 F.3d
496, 505 (5th Cir. 1999). “A trial court’s ruling regarding
admissibility of expert testimony is protected by an ambit of
discretion and must be sustained unless manifestly erroneous.”
Satcher v. Honda Motor Co., 52 F.3d 1311, 1317 (5th Cir. 1995)
(quoting Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1109
(5th Cir. 1991)).
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Appellants assert that it was an abuse of discretion to
qualify Sisson as an expert because he had never worked in the
ladder-making industry and had never published research on ladders
or ladder joints. The trial judge concluded that Sisson, an
engineering consultant and former engineering professor, was
qualified to evaluate the relatively simple structure of a
stepladder. Sisson testified that he had designed mechanical
components far more complicated than stepladders. Qualifying Sisson
as an expert was not an abuse of discretion.
Appellants argue that it was abuse of discretion to admit
Sisson’s testimony, over objection, because Sisson did not perform
any tests on the accident ladder (because it was broken) nor other
ladders of the same make. Accordingly, he could not have known
whether the force of Cromwell’s weight could have cause the break,
or whether it must have been some other, greater force. In other
words, appellants argue that Sisson improperly “assumed that the
bar rivet was torn through the rail while Cromwell was standing on
the ladder.” However, experts are permitted to assume the
underlying facts that form the basis for their opinions. See
Daubert, 509 U.S. at 592 (“[A]n expert is permitted wide latitude
to offer opinions, including those that are not based on firsthand
knowledge or observation.”). Sisson’s report states that his
conclusions are based on Cromwell’s own statements, indicating,
quite properly, that his conclusions assume that Cromwell was atop
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the ladder when it fell—— a fact the jury apparently believed from
the other testimony.
Appellants also assert that it was an abuse of discretion to
admit the testimony of Sisson, over objection, once it became known
that Cromwell had changed his account of the facts. At trial,
Cromwell gave a different account of his position on the ladder
than he had given at his deposition. Cromwell admitted his
reassessment, and defendants’ counsel exploited that fact on cross-
examination. Appellants assert that Cromwell’s story-change
triggered a duty, under Federal Rule of Civil Procedure 26(e), to
amend Sisson’s report; and since it never was amended, his
testimony should have been excluded, as required by Federal Rule of
Civil Procedure 37(c). Review of the record reveals that Sisson’s
assessment that the stepladder was defective did not depend on the
exact position of the defendant or the stepladder. His report and
testimony were consistent in concluding simply that excessive
racking had occurred. It was up to the jury to determine, looking
to other evidence, whether Cromwell was on the ladder, and whether
he had put himself in a dangerous position. We find no abuse of
discretion in the trial court’s overruling defendants’ objections
to Sisson’s testimony.
III. Sufficiency of the Evidence
Appellants argue that there was insufficient evidence to
support the jury’s award, and that the trial judge should have
granted a post-trial judgement as a matter of law, or a new trial.
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We review a sufficiency of the evidence challenge for abuse of
discretion. Dixon v. Int’l Harvester Co., 754 F.2d 572, 586 (5th
Cir. 1985). “We review ‘the evidence in its strongest light in
favor’ of the plaintiffs, giving them ‘the advantage of every fair
and reasonable inference which the evidence justifies.’” See
Bartley v. Euclid, Inc., 180 F.3d 175, 179 (5th Cir. 1999) (en
banc) (citations omitted).
It was reasonable for the jury to believe Cromwell’s testimony
that the ladder buckled from under him. And it was also reasonable
for the jury to believe Cromwell’s expert, and disbelieve
defendants’ expert, that the ladder was defective and could have
been made more safe by simply adding a larger washer. See LA. REV.
STAT. § 9:2800.56. The evidence was sufficient to support the jury’s
determination.
Cromwell asserts that there was insufficient evidence to
support the jury’s decision to apportion him 35 per cent of the
fault. However, he conceded at trial that while on the ladder he
was “overreaching” and in an “unsafe position.” The evidence was
sufficient to support his comparative fault.
IV. Remittitur
The decision to grant a remittitur is in the sound discretion
of the trial judge and is reviewed for abuse of discretion. See
Denton v. Morgan, 136 F.3d 1038, 1046 (5th Cir. 1998). Under
Louisiana law, “much discretion is left to the... jury” in
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determining general damages. LA. CIV. CODE ART. 2324.1. “Only after
a determination that the trier of fact has abused its ‘much
discretion’ is a resort to prior awards appropriate and then only
for the purpose of determining the highest or lowest point which is
reasonably within that discretion.” See Duncan v. Kansas City
Southern Ry. Co., 773 So.2d 670, 682 (La. 2000) (citation omitted).
In sum, we must determine whether the trial court abused its
discretion by determining that the members of the jury abused their
discretion. We conclude that it did not.
Cromwell cites Detraz v. Hartford Accident & Indemnity Co.,
647 So.2d 576 (La. Ct. App. 1994), in which an $800,000 general
damages award was upheld, in part because of Detraz’ loss of
enjoyment of life. The analogy to Detraz is not persuasive,
however, because the large award was attributable to Detraz’ severe
injuries: “a fractured and dislocated left hip, a dislocated right
shoulder, with a torn rotator cuff, a deep laceration to the left
arm, a fractured sternum, fractured ribs, and abrasions to the
head.” Id. at 578. Detraz endured a “grueling month long hospital
stay” and permanent impairments. Id. at 580.
The trial judge discovered that the highest award for a
shoulder injury comparable to Cromwell’s was $150,000, see J.B.
Saucier v. Players Lake Charles, 751 So.2d 312, 320 (La. Ct. App.
2000), and reduced Cromwell’s award accordingly. This comports with
the Louisiana Supreme Court’s instructions to look to prior awards
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for the outer bounds of jury discretion, see Duncan 773 So.2d at
682, and was not an abuse of the trial court’s discretion.
V. Conclusion
The judgment of the district court is AFFIRMED.
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