NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0355n.06
Filed: May 4, 2005
No. 04-5210
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
THOMAS MILLS and NITA MILLS,
Plaintiffs-Appellants,
ON APPEAL FROM THE
v. UNITED STATES DISTRICT
COURT FOR THE EASTERN
HOME DEPOT U.S.A., INC., DISTRICT OF TENNESSEE
Defendant-Appellee.
/
Before: MARTIN, COOK and LAY, Circuit Judges.*
BOYCE F. MARTIN, JR., Circuit Judge. Thomas and Nita Mills assert several claims
pertaining to their personal injury action against Home Depot for damages resulting from a fall
sustained by Thomas Mills. For the following reasons, we AFFIRM the district court on each issue.
I.
On March 4, 2001, Thomas and Nita Mills went shopping at a Home Depot store in
Chattanooga, Tennessee. While there, Thomas apparently sat on a patio chair that was on display.
The chair gave way, causing Thomas to fall over backwards and strike his head and back on the
concrete floor. The Millses filed the instant complaint against Home Depot in Tennessee state court
on October 4, 2001, claiming that Thomas suffered substantial personal injuries from the fall. Home
*
The Honorable Donald P. Lay, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
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Depot removed the case to federal court based on diversity jurisdiction. Prior to the beginning of
trial, Home Depot filed a stipulation of liability and the trial was conducted on the issue of damages
only. The jury returned a verdict for the Millses, awarding damages in the amount of $39,898
($5,000 for physical pain and suffering; $18,576 for medical expenses; and $16,322 for lost earning
capacity), which was significantly less than the three million dollars requested by the Millses. On
November 20, 2003, the Millses moved for a new trial, and their motion was denied by the district
court in a memorandum opinion on February 6, 2004. The Millses timely filed this appeal, claiming
that the district court abused its discretion in allowing allegedly misleading deposition testimony and
in denying their motion for a new trial based on counsel for Home Depot’s alleged improper and
prejudicial remarks during closing argument and an allegedly inconsistent jury verdict.
II.
This Court reviews for an abuse of discretion both the district court’s decision to allow
opinion testimony, JGR, Inc. v. Thomasville Furniture Indus., Inc., 370 F.3d 519, 524 (6th Cir.
2004), and the district court’s denial of a motion for a new trial, Webster v. Edward D. Jones & Co.,
197 F.3d 815, 818 (6th Cir. 1999).
The Millses first claim on appeal that the district court erred in admitting deposition
testimony elicited on Home Depot’s cross examination of Thomas Mills’s back surgeon, Dr. Paul
Broadstone. The Millses claim that counsel for Home Depot asked Broadstone a series of
hypothetical questions, which were not supported by the evidence, resulting in misleading testimony
regarding Thomas’s medical history. On direct examination, Broadstone generally testified to the
effect that it was his opinion that Thomas’s back injuries were causally related to the fall at Home
No. 04-5210
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Page 3
Depot. In an effort to undermine that opinion, counsel for Home Depot, on cross examination, asked
Broadstone several questions about whether he was aware of certain events in Thomas’s medical
history that may have contributed to the injuries he suffered. The challenged testimony reads as
follows:
Q (Home Depot counsel): Were you told that in 1976 [that Thomas] had
problems with muscle spasms in his low back and had
a lifting injury to his low back?
A (Dr. Broadstone): Again, I don’t have that in my history.
Q: And history is what you’re asking the patient about[,] his history, correct?
A: Yes.
Q: All right. Were you aware that he also had a back injury in 1979 from a
lifting incident in which he had to be prescribed pain medication and was
diagnosed with scoliosis?
A: Again, that was not part of the history we obtained on the first day.
Q: What about a low back injury from 1980 while he was at work and he had
problems with straight leg raising and had to get pain medication and had to
wear a back brace? Did he tell you about that?
A: No, sir.
Q: Were you aware in 1993 that [Thomas] was diagnosed with chronic low back
pain which was so bad it was causing recurrent depression? Did he give you
that history?
A: No.
Q: Have you reviewed the full body bone scan that was done in April of 1999
showing the degenerative changes in his low back?
A: [Thomas] [d]id not report he had had a bone scan.
According to the Millses, this line of questioning, particularly the final two questions, was
“misleading,” and “serve[d] no purpose in this case but to confuse the issues presented to the jury.”
We disagree. The challenged line of questioning appears to us to be particularly relevant to
the validity of the opinions rendered by the witness, Dr. Broadstone, because it suggests that
Broadstone was not fully informed of Thomas’s medical history. Furthermore, the Millses have
failed to challenge the factual basis for the questions, as it appears that the incidents cited by counsel
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for Home Depot did occur. The Millses only appear to claim that the 1993 episode was merely an
inguinal infection and could not have contributed to the injuries in this case, and that the bone scan
taken in 1999 was for chest pain rather than a back problem. These issues appear to relate to the
weight of Broadstone’s testimony, rather than its admissibility, and are therefore properly considered
by the jury. See, e.g., United States v. L.E. Cooke Co., 991 F.2d 336, 342 (6th Cir. 1993). Thus,
because we can find no ground upon which to conclude that the district court abused its discretion
in allowing this testimony, we affirm the district court’s admission of the challenged evidence.
The Millses’ second claim is that the district court abused its discretion in denying their
motion for a new trial based on counsel for Home Depot’s closing argument. In support of this
claim, the Millses point to an isolated statement made at the beginning of the argument: “Ladies and
gentlemen, a few things that were mentioned by [counsel for the Millses]: We have all the medical
records. That proof was never placed before you today. We don’t know if we have all the medical
records or not.” According to the Millses, this statement suggests that there might be other medical
records, that were not introduced at trial, that could reveal further back problems in Thomas’s
medical history. This, the Millses claim, was prejudicial, and thus a new trial is required.
“In order to be entitled to a new trial, [the Millses] must show both that the closing argument
was improper and that [the Millses were] prejudiced by the impropriety, that is, that there is a
reasonable probability that the jury’s verdict was influenced by the improper argument.” Fuhr v.
Sch. Dist. of City of Hazel Park, 364 F.3d 753, 760 (6th Cir. 2004). We conclude that the district
court did not abuse its discretion in denying the motion for a new trial on this ground. The Millses
fail to present a convincing case as to why the challenged argument was improper. The
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argument—that the jury could not be sure that it had all of the medical records—is a reasonable
inference from the evidence admitted at trial suggesting that Thomas failed to be candid about his
previous medical conditions. In fact, counsel for Home Depot merely appears to have been
responding to plaintiff counsel’s own claim in his closing argument that he had “given you[, the
jury,] all the records.” We can find no legal authority suggesting that such comments are improper.
Furthermore, it appears unlikely that there is a “reasonable probability” that the allegedly prejudicial
comment influenced the jury’s verdict, given the other evidence in the record indicating the
existence of a back condition prior to the accident at Home Depot. For these reasons, we hold that
the district court did not abuse its discretion in denying the motion for a new trial based on Home
Depot’s allegedly improper and prejudicial statements in closing argument.
The final issue presented by the Millses on appeal is whether the district court erred in
determining that the jury’s verdict was within the confines established by state law. The Millses
claim that the jury’s award on past lost wages/loss of earning capacity was inconsistent with their
expert evidence presented in the district court. The Millses’s claim on this issue is meritless. The
district court properly noted that the argument is misguided because it
ignores the countervailing evidence [that was introduced at trial]. . . . [I]t is obvious the jury
discounted some of [the Millses’] proof and credited the opposing proof. Once we view the
jury’s verdict from the vantage point of its evident conclusion that some of [Thomas’s] loss
of earning capacity was due to his pre-existing back problems[,] then the alleged
inconsistency disappears.
We agree with the district court’s conclusion, and we hold that the court was within its discretion
to deny the motion for a new trial on this ground.
III.
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For the aforementioned reasons, we AFFIRM the district court on all issues.