Michael Bavlsik v. General Motors

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 16-1491
___________________________

Michael Bavlsik; Kathleen Skelly

lllllllllllllllllllll Plaintiffs - Appellants

v.

General Motors, LLC

lllllllllllllllllllll Defendant - Appellee
___________________________

No. 16-1632
___________________________

Michael Bavlsik; Kathleen Skelly

lllllllllllllllllllll Plaintiffs - Appellees

v.

General Motors, LLC

lllllllllllllllllllll Defendant - Appellant
____________

Appeals from United States District Court
for the Eastern District of Missouri - St. Louis
____________
 Submitted: March 8, 2017
Filed: August 31, 2017
____________

Before RILEY,1 Chief Judge, GRUENDER, Circuit Judge, and GRITZNER,2
District Judge.
____________

RILEY, Chief Judge.

These appeals are driven, in large part, by the standards of review.

About five years ago Michael Bavlsik was driving his 2003 GMC Savana van
when he collided with a boat being towed by another vehicle. Bavlsik was wearing
his seatbelt, but that did not prevent him from hitting his head on the roof when the
van rolled over. As a result, Bavlsik sustained a cervical-spinal cord injury and is
now a quadriplegic. Bavlsik and his wife, Kathleen Skelly, sued General Motors, the
company that designed and manufactured the van, for: (1) strict liability, asserting the
seatbelt system lacked three specific safety features; (2) negligent design, based on
GM’s failure to implement these safety features or conduct adequate testing on the
van; and (3) failure to warn.

After an eleven-day trial, the jury found GM negligent for failing to test the van
and such negligence caused Bavlsik’s injuries. The jury rejected all other claims and
theories. Bavlsik was set to recover $1 million (all for past damages), until the trial
court granted GM’s renewed motion for judgment as a matter of law (JML) and set

1
The Honorable William Jay Riley stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 10,
2017. He has been succeeded by the Honorable Lavenski R. Smith.
2
The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa, sitting by designation.

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aside the verdict. On Bavlsik’s and Skelly’s motion, the trial court also conditionally
granted a new trial solely as to damages. Both decisions are before us now. Bavlsik
and Skelly contend they presented sufficient evidence to support the verdict, therefore
GM was not entitled to JML. GM disagrees, and argues that if a new trial is
necessary, then the parties should also retry the liability issue. We reverse the grant
of JML, and affirm the grant of a new trial on damages only. See 28 U.S.C. § 1291
(appellate jurisdiction).

I. BACKGROUND
A. The Crash
On July 7, 2012, Bavlsik was driving two of his sons and eight others home to
St. Louis after spending a week at Boy Scout camp in northern Minnesota when he
hit a boat and trailer being towed by a pickup truck. The initial collision did not
cause any significant harm, but then Bavlsik’s vehicle—a twelve-passenger 2003
GMC Savana van he had purchased nine years earlier—swerved and completed a
three-quarters roll at a relatively low speed. Bavlsik was wearing his seatbelt, but still
slid far enough out of his seat to hit the roof of the van with enough force to dislocate
his neck and sever his spinal cord. No one else was seriously hurt.

Today, Bavlsik is a quadriplegic. He has “no motor movement below [his]
chest,” however he was able to regain partial function of his arms after a nerve
transplant and considerable rehabilitation work. Bavlsik’s limitations have had
predictable effects on his life. Professionally, Bavlsik was able to resume his work
as a doctor just a few months after the accident. Needless to say Bavlsik’s medical
practice has changed—he “see[s] less patients in the office” due to his problems
getting around, he has “lost a lot of patients,” and he has to work harder to
accomplish routine tasks. Personally, Bavlsik misses the way life was when he could
hike, bike, swim, and maintain an active lifestyle with his family. Bavlsik also
worries about what the future holds, both for himself and his family. According to
Skelly, she shares many of these feelings and concerns. And financially, not only

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have Bavlsik’s professional prospects been curtailed, but he will also need to pay for
some form of care for the rest of his life.

B. The Case
Bavlsik and Skelly filed a products-liability suit against GM in the Eastern
District of Missouri less than one year after the accident. See 28 U.S.C. § 1332(a)(1)
(diversity jurisdiction). The complaint included claims for strict liability, negligent
design, and failure to warn. Bavlsik sought past and future damages for loss of
income, pain and suffering, medical expenses, and punitive damages; Skelly sought
additional damages for loss of consortium. Both sides consented to a magistrate
judge presiding over the action. See id. § 636(c)(1) (magistrate jurisdiction).

The case culminated in a multi-week jury trial in September 2015. The
foundation of the plaintiffs’ case-in-chief was crafted around four key facts: first,
there was no pretensioner, a device that activates in the event of a crash and removes
slack from the seatbelt; second, the van did not employ an all-belts-to-seat design,
which (as the name implies) consists of attaching the seatbelt to the seat rather than
the body of the vehicle; third, the seatbelt did not use a sliding-cinching latch plate,
which limits how freely the latch moves on the webbing of the belt; fourth, the van’s
seatbelt system had not been tested to see how it would perform during a rollover
accident.

There was no dispute about whether these four facts were true. Rather the case
hinged on the significance of these facts. Bavlsik’s and Skelly’s expert, Larry Sicher,
testified that the lack of the three features he identified rendered the van’s seatbelt
system defective, testing would have revealed as much, and implementing any of
these design alternatives would have prevented Bavlsik’s injuries. Sicher’s testimony
was the primary way the plaintiffs tried to satisfy their burden for the factual
questions facing the jury. On the strict liability claim, did the lack of the three
proposed safety features mean the van was “in a defective condition unreasonably

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dangerous when put to a reasonably anticipated use?” On the negligence claim, did
the absence of any of these features and the lack of testing mean GM breached a duty
by designing the van as it did?3 And for both claims, there was the issue of
causation—would these features or some type of testing have prevented Bavlsik’s
injuries?

When the plaintiffs rested their case on day six of trial, GM moved for JML.
See Fed. R. Civ. P. 50(a). According to GM, there was insufficient proof “that any
alternative design . . . would have made any difference,” and as for testing it was
unclear “what the test should have been” or “in what way the information gathered
from such a test should have been used.” Bavlsik and Skelly countered, citing their
expert’s testimony about the effect the proposed features have on keeping passengers
safely in their seats during a rollover. Bavlsik and Skelly also highlighted testimony
about the “importance of testing” and posited that had there been adequate testing,
“maybe [GM] could have considered some alternative—some of the many alternative
designs that were offered into evidence in this case.” The trial court orally denied
JML, so GM proceeded with its case-in-chief. At the close of all evidence, GM
renewed its motion for JML “for the same reasons previously stated,” plus its
supposed “direct evidence that . . . none of the alternatives . . . are actually effective
and that there is nothing feasible that could have been done that would have
prevented the injury.” Again, the trial court orally denied the motion.

The trial court submitted the plaintiffs’ claims on a general verdict form with
special interrogatories that listed all of their theories within each claim (including
lack of testing for negligent design). The jury returned a verdict after over four hours
of deliberation, finding GM was negligent for not testing the van’s seatbelt system,
and that negligence directly caused Bavlsik’s injuries. The jury found GM was not

3
Neither side makes any argument about the failure-to-warn claim, and because
we agree it has no relevance to this appeal, we will not elaborate on it here.

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strictly liable or negligent for failing to implement any of the specific safety features
Bavlsik and Skelly had proposed. With the verdict, Bavlsik was to recover
$1 million—all for past damages, none for future damages—and Skelly was to
recover nothing. GM did not object to the jury instructions, the verdict form, or the
verdict itself.

Both sides filed post-trial motions. Bavlsik and Skelly moved for a new trial
only on the damages issue. See Fed. R. Civ. P. 59(a). GM renewed its motion for
JML, see Fed. R. Civ. P. 50(b), and alternatively moved for a new trial only on the
failure-to-test portion of the negligent-design claim, see Fed. R. Civ. P. 59(a). This
time the trial court granted GM’s request for JML, reasoning “[t]he jury’s finding of
no defect rendered the other finding of negligent failure to adequately test a legally
insufficient basis for liability.” From this, Bavlsik and Skelly appeal. In addition, the
trial court conditionally granted Bavlsik and Skelly a new trial on damages only,
because the jury’s award was “shockingly inadequate.” See Fed. R. Civ. P. 50(c)(1).
From this, GM conditionally cross-appeals.

II. DISCUSSION
A. Judgment as a Matter of Law
We must first decide whether the district court was right to grant GM’s
renewed motion for JML, which is a question we review de novo. See Stults v. Am.
Pop Corn Co., 815 F.3d 409, 418 (8th Cir. 2016). Here, GM is entitled to JML only
if “a reasonable jury would not have a legally sufficient evidentiary basis” to return
a verdict for Bavlsik and Skelly on their failure-to-test theory of negligent design.
Fed. R. Civ. P. 50(a)(1). “[T]he law places a high standard on overturning a jury
verdict because of the danger that the jury’s rightful province will be invaded when
judgment as a matter of law is misused.” Hunt v. Neb. Pub. Power Dist., 282 F.3d
1021, 1029 (8th Cir. 2002) (citation omitted). The proper analysis for considering
renewed JML motions reflects our hesitancy to interfere with a jury verdict:

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 “[T]he [trial] court must (1) consider the evidence in the light most
favorable to the prevailing party, (2) assume that all conflicts in the
evidence were resolved in favor of the prevailing party, (3) assume as
proved all facts that the prevailing party’s evidence tended to prove, and
(4) give the prevailing party the benefit of all favorable inferences that
may reasonably be drawn from the facts proved. That done, the court
must then deny the motion if reasonable persons could differ as to the
conclusions to be drawn from the evidence.”

Ryther v. KARE 11, 108 F.3d 832, 844 (8th Cir. 1997) (en banc) (first alteration in
original) (quoting Haynes v. Bee-Line Trucking Co., 80 F.3d 1235, 1238 (8th Cir.
1996)); accord Browning v. President Riverboat Casino-Mo., Inc., 139 F.3d 631, 634
(8th Cir. 1998) (“Judgment as a matter of law is proper only when the evidence is
such that, without weighing the credibility of the witnesses, there is a complete
absence of probative facts to support the verdict.”). With this perspective in mind,
we must determine whether there was legally sufficient evidence to support the jury’s
liability finding.4 We hold there was.

The jury found GM liable for “not adequately test[ing]” the van. This theory
of liability was presented to the jury as a subpart of the broader negligent-design
claim, so Bavlsik and Skelly had the burden of establishing the traditional negligence
elements: duty, breach, causation, and damages. See Stanley v. Cottrell, Inc., 784
F.3d 454, 463 (8th Cir. 2015) (“To prove a negligent design claim under Missouri
law, a plaintiff must show that the defendant breached its duty of care in the design

4
The trial court did not adhere to this evidence-centric approach in granting
GM’s renewed motion for JML, and instead relied largely (if not exclusively) on the
jury’s findings. Much of the parties’ briefing focused on whether this approach was
compatible with our precedent regarding Rule 50 and what significance, if any, we
should place on the jury’s other findings. However, at oral argument GM conceded
the point and invited us to focus only on the evidence. We accept this concession,
and assume for the sake of this appeal that everything else (including the jury’s other
findings) is irrelevant.

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of a product and that this breach caused the injury.”). We assess these elements in
turn.

GM makes no meaningful argument it did not have a duty to exercise
reasonable care in designing the van. Both Missouri appellate courts and our court
have recognized companies have a duty to exercise due care when they design and
manufacture a potentially dangerous product, which includes taking reasonable steps
to reduce the likelihood of such injury. See, e.g., Johnson v. Auto Handling Corp.,
No. SC 95777, ___ S.W.3d ___, ___, 2017 WL 2774620, at *1-2, *7-8 (Mo. June 27,
2017); Mathes v. Sher Express, L.L.C., 200 S.W.3d 97, 109 (Mo. Ct. App. 2006);
McKnight ex rel. Ludwig v. Johnson Controls, Inc., 36 F.3d 1396, 1411 (8th Cir.
1994).5 Thus GM had a duty to exercise reasonable care in designing the van.

Whether GM breached that duty was “a question of fact for the jury.” Lopez
v. Three Rivers Elec. Co-op., Inc., 26 S.W.3d 151, 157 (Mo. 2000). To support their
failure-to-test theory, Bavlsik and Skelly relied on their design expert, Sicher, who
testified about the important role testing plays (or should play) in the design process:
“[T]he basic design principles are set your goals, determine how you’re going to test

5
We described a car manufacturer’s duty to design its vehicles with care in
Larsen v. General Motors Corp., 391 F.2d 495, 502-03 (8th Cir. 1968). There, we
held “[a] manufacturer is under a duty to use reasonable care in the design of its
vehicle to avoid subjecting the user to an unreasonable risk of injury in the event of
a collision.” Id. at 502. We went on to explain “[t]he manufacturers are not insurers
but should be held to a standard of reasonable care in design to provide a reasonably
safe vehicle in which to travel. . . . At least, the unreasonable risk should be
eliminated and reasonable steps in design taken to minimize the injury-producing
effect of impacts.” Id. at 503. Larsen attempted to divine and apply Michigan law,
see id. at 497, but it is a “landmark decision” of sorts on this issue, and we have
looked to the Larsen court’s reasoned analysis in a products-liability case governed
by Missouri law. See Polk v. Ford Motor Co., 529 F.2d 259, 264, 266 (8th Cir. 1976)
(en banc).

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 or evaluate them, and then start testing them.” If the test results are unsatisfactory,
then the company should “go back and either do a redesign or evaluate whether that
was a true indicative method of evaluating [the goal] properly.” That is, in Sicher’s
opinion, rollover testing is vital to producing a careful design because it allows a
company like GM to discover how a vehicle performs during a rollover and what
alternatives, if any, can improve that performance—to him, failure to test means
failure to exercise reasonable care. Cf. McKnight, 36 F.3d at 1411 (recognizing
“[f]ailure to test is a viable theory of recovery under Missouri law” in a
manufacturing defect case); Zesch v. Abrasive Co. of Phila., 183 S.W.2d 140, 145
(Mo. 1944) (“[W]here it is shown that the imperfection could be disclosed by a test,
it would seem reasonable that the manufacturer in the exercise of ordinary care would
be under a duty to make the test.”).

Such testing did not happen here. In a deposition played to the jury, GM’s
corporate representative admitted the company conducted no rollover testing to assess
the seatbelt system’s performance before bringing the van to market in early 2003.
Without testing, GM could not know whether the van provided adequate protection
to occupants during a rollover, or whether any reasonable alternatives would have
afforded additional protection. To be sure, there was evidence GM conducted
compliance testing and met certain required safety standards. Yet as the jury was
instructed, proof of such compliance “is relevant to, but not determinative of, whether
the manufacturer exercised ordinary care in the design of its motor vehicles.” The
jury was still free to accept Sicher’s testimony and find GM breached its duty by not
conducting any sort of rollover testing before selling the van.6

6
Though it does not affect the analysis given our de novo review, we note the
trial court’s only reference to the evidence itself was a comment that the jury’s
conclusion GM “negligently failed to adequately test the seat belt restraint system”
was “supported by legally sufficient evidence.”

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 We proceed to the more hotly contested issue at trial and on
appeal—causation: whether GM’s negligence “directly caused” the harm, meaning
Bavlsik would not have been injured “‘but for’” the van’s negligent design and GM’s
failure to test. Poage v. Crane Co., No. ED 103953, ___ S.W.3d ___, ___, 2017 WL
1632580, at *3-4 (Mo. Ct. App. May 2, 2017) (quoting Callahan v. Cardinal Glennon
Hosp., 863 S.W.2d 852, 863 (Mo. 1993)). In this case, the causation requirement
means Bavlsik and Skelly had to prove both that testing would have shown the van
did not provide adequate protection during a rollover, and that testing would have
prompted GM to explore and implement a safer design capable of preventing
Bavlsik’s injuries. Like breach, causation “is a factual question left for the jury.” Id.
at ___, 2017 WL 1632580, at *3. Here the jury was properly instructed on the
causation question, and found Bavlsik and Skelly satisfied their burden. GM
contends there is legally insufficient evidence to support this finding, suggesting at
oral argument that Bavlsik’s and Skelly’s causation evidence is “vague, and
speculative, and woefully inadequate to support th[e] verdict.” We disagree.

The heart of the plaintiffs’ causation evidence came from Sicher, who
unequivocally opined that testing would have shown the van was not safe during a
rollover, and “that there were designs available . . . that would have prevented Dr.
Bavlsik’s injuries.” Sicher, a mechanical engineering expert with over twenty years
of experience, explained the many tests he relied upon to reach this critical opinion.7
First came the seminal “Malibu II” report in 1990, which revealed significant neck
injuries were likely during a rollover, even if the occupant was wearing a seatbelt.
Then there were a number of tests over the next fifteen-plus years that showed,
according to Sicher, how various design alternatives can improve seatbelt

7
GM moved in limine to exclude Sicher’s testimony, arguing he was not
qualified to testify as an expert, the testing he relied on was unreliable and
inapplicable to this case, and his conclusions were not adequately supported. The
trial court rejected these arguments and certified Sicher as an expert. See generally
Fed. R. Evid. 702. GM does not appeal this decision.

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effectiveness and reduce rollover injuries. Last came research GM conducted on the
Savana model in 2007 and 2014, which Sicher said is proof the Savana’s seatbelt
system “d[id] not provide a reasonable level of protection in a rollover.” Taken
together, Sicher’s testimony and the peer-reviewed literature he relied upon support
a reasonable inference that pre-2003 testing would have revealed the Savana seatbelt
system was inadequate and could have been improved by adding feasible safety
features.

Sicher also demonstrated a sufficient understanding of the relevant case-
specific circumstances. At 6’1” and about 260 pounds, Bavlsik was not a small man.
Bavlsik had about four inches of clearance between his head and the roof when he
was seated in a “normal driving position” like he was when the collision occurred.
Upon impact, Bavlsik’s van began a counterclockwise yaw and completed a three-
quarters roll at around 11 to 15 miles per hour, beginning on the passenger’s side and
stopping on the driver’s side. Evidence suggested the van was flipped exactly 180
degrees when Bavlsik sustained the injury. According to Sicher, he accounted for all
these factors in reaching his ultimate conclusion that his proposed design changes
would have prevented Bavlsik’s injuries.

For its part, GM sought to downplay its failure to test by casting doubt on
whether test results would have shown any of Sicher’s proposed designs to be
effective. GM’s counsel cross-examined Sicher at length about supposed flaws in his
methodology and whether the available testing actually supported his conclusions.
GM then called two of its own engineering experts, who rebutted Sicher’s opinions
and opined there were no feasible design changes that would have prevented
Bavlsik’s injuries. GM’s argument seemed to be that testing would have done
nothing more than show there was a problem with no solution.

The jury heard considerable expert testimony about whether testing would have
revealed design alternatives capable of protecting Bavlsik during the rollover. Sicher

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“testified extensively” about his opinion on the matter and was “subjected to lengthy
and detailed cross-examination.” Adams v. Toyota Motor Corp., Nos. 15-2507,
-2516, -2635 to -2638, ___ F.3d ___, ___, 2017 WL 3445112, at *7 (8th Cir. Aug.
11, 2017). GM’s experts did the same and were similarly challenged. This is a
classic example of conflicting evidence that must be weighed and decided by a jury,
not a court. See id. (“Though Toyota disagrees with Stilson’s opinions and
conclusions . . . ‘questions of conflicting evidence must be left for the jury’s
determination,’ and we will not re-weigh the evidence.” (quoting Bonner v. ISP
Techs., Inc., 259 F.3d 924, 930 (8th Cir. 2001))). It appears the jurors believed
Sicher, at least in regards to testing, which they were entitled to do.8 Thus viewing
the evidence and accepting all inferences in the light most favorable to Bavlsik and
Skelly, we find legally sufficient evidence to support the jury’s causation finding.

We end our JML analysis with damages, the final element and the one that
requires little analysis in this case. For Bavlsik, there was an abundance of evidence
about the harm he suffered physically, emotionally, professionally, and financially.
For Skelly, there was evidence she plainly sustained loss-of-consortium damages.
(We discuss the extent of such damages in more detail below.) In sum, there was
legally sufficient evidence for a reasonable jury to find GM liable for negligent
design, specifically for failing to conduct adequate testing. JML was improper.

B. New Trial
Given our decision above, we must now decide whether the trial court was
wrong conditionally to “grant a new trial only on plaintiff Bavlsik’s future damages
and on plaintiff Skelly’s damages, past and future.” See Fed. R. Civ. P. 59 (new
trial); see also Fed. R. Civ. P. 50(c)(1) (conditional new-trial rulings). GM contends

8
We reiterate, although it may seem counterintuitive and odd from a practical
perspective, our focus is confined to what the jury found in regards to this issue (GM
is liable for failure to test), without any regard to what the jury found on other issues.

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the trial court abused its discretion by limiting the potential new trial like this
“because the entire record demonstrates the compromise character of the verdict.”
GM says the parties should retry the failure-to-test theory in its entirety, including the
question of liability. Although GM makes a strong case, we are unable to say the trial
court abused its considerable discretion and committed reversible error.

A trial court “may, on motion, grant a new trial on all or some of the issues,”
provided there is a good reason to do so. Fed. R. Civ. P. 59(a)(1). It is generally
permissible for a trial court to grant a new trial on damages only. See Haug v.
Grimm, 251 F.2d 523, 527-28 (8th Cir. 1958); see also Gasoline Prods. Co., Inc. v.
Champlin Ref. Co., 283 U.S. 494, 499-500 (1931). That is what happened here. The
trial court first referenced Missouri law and recognized reversal on damages was
warranted if the jury’s award was “shockingly inadequate.” See Riordan v. Corp. of
the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 416 F.3d
825, 833 (8th Cir. 2005); see also Niemiec v. Union Pac. R.R. Co., 449 F.3d 854,
858-59 (8th Cir. 2006) (noting “state law governs the question of adequacy of
damages” even though “‘the appropriateness of a new trial is a federal procedural
question decided by reference to federal law’” (quoting Sanford v. Crittenden Mem’l
Hosp., 141 F.3d 882, 884 (8th Cir. 1998))). The trial court then used this standard to
evaluate the evidence presented at trial and concluded the damages were indeed
“shockingly inadequate.” We review this conclusion only for an abuse of discretion.
See Dominium Mgmt. Servs., Inc. v. Nationwide Hous. Grp., 195 F.3d 358, 366 (8th
Cir. 1999); see also Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980) (per
curiam) (“The authority to grant a new trial . . . is confided almost entirely to the
exercise of discretion on the part of the trial court.”).

The trial court did not abuse its discretion. As the trial court put it, the
plaintiffs proved Bavlsik sustained “a permanent injury that would require medical
care of some sort for the rest of his life.” Such care does not come cheap—Bavlsik’s
and Skelly’s expert on the issue predicted Bavlsik would incur $7 million in life-care

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costs if he lived to age 79. This is in addition to whatever Bavlsik lost in earning
potential, which another expert said will likely range between $296,000 (if Bavlsik
worked until age 67) and $5.8 million (if Bavlsik quit immediately). As for Skelly,
the evidence was clear regarding the impact her husband’s injury had and will
continue to have on her. Though GM questioned the size of the plaintiffs’ claims, it
did not suggest the jury should award $0 for future damages or loss of consortium.
The parties fought about the extent of damages, not the existence of them.

Rather than try to justify the award, GM posits the low damages figure is one
of several signs the verdict represents an improper compromise. While it is true a
retrial on only damages is sometimes proper, it is inappropriate “where there is good
reason to believe that the inadequacy of the damages awarded was induced by
unsatisfactory proof of liability and was a compromise.” Haug, 251 F.2d at 527-28;
see also Phav v. Trueblood, Inc., 915 F.2d 764, 767 (1st Cir. 1990) (“Where a verdict
is set aside because of an inadequate damages award, retrial of all the issues is
required ‘if the verdict could only have been a sympathy or compromise verdict.’”
(quoting Spell v. McDaniel, 824 F.2d 1380, 1400 (4th Cir. 1987))). Generally such
situations necessitate a new trial on all claims and issues. See Carter v. Moore, 165
F.3d 1071, 1083 (7th Cir. 1998) (“When a court recognizes that the jury’s verdict is
a result of impermissible compromise, such a verdict taints the entire proceeding and
the proper remedy is a new trial on all issues.” (emphasis added)).

“A compromise verdict results when the jury, unable to agree on the issue of
liability, compromises that disagreement by awarding a party inadequate damages.”
Boesing v. Spiess, 540 F.3d 886, 889 (8th Cir. 2008). “[S]everal factors” are often
probative of whether the jurors improperly compromised, like “a close question of
liability, a grossly inadequate award of damages, and other circumstances such as the
length of jury deliberations.” Id. Yet “the overarching consideration must be whether
the record, viewed in its entirety, clearly demonstrates the compromise nature of the
verdict.” Id.

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 The trial court explicitly rejected any suggestion of a compromise verdict,
perceiving “no question regarding the jury’s limited finding of liability.” We note
two overlapping forms of deference are at play in our review of this conclusion—we
defer first to the jury, as we start with the assumption jurors fulfilled their obligation
to decide the case correctly; and we defer second to the trial court, which “has a far
better sense of what the jury likely was thinking and also whether there is any
injustice in allowing the verdict to stand.” Nichols v. Cadle Co., 139 F.3d 59, 63 (1st
Cir. 1998); see also id. (“[T]here is . . . a settled hostility toward [finding]
‘compromise’ verdicts.”); Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S.
474, 485 (1933) (“Appellate courts should be slow to impute to juries a disregard of
their duties, and to trial courts a want of diligence or perspicacity in appraising the
jury’s conduct.”). We proceed with this doubly deferential standard in mind.

First, as discussed above, both sides agree the damages award is seriously
inadequate—although they disagree on the degree of the inadequacy. Given that
reduced damages are part of the very definition of a compromise verdict, this factor
exists in nearly every case where a court finds an improper compromise. See, e.g.,
Mekdeci ex rel. Mekdeci v. Merrell Nat’l Labs., 711 F.2d 1510, 1513-14 (11th Cir.
1983). “Insufficient damages alone, however, do not establish a compromise
verdict.” Reider v. Philip Morris USA, Inc., 793 F.3d 1254, 1260 (11th Cir. 2015).
If the rule were any different, a retrial on damages only would never be appropriate,
and that is not the case. To be sure, the low verdict amount is consistent with a
compromise verdict. However, it falls short of convincing us the trial court abused
its discretion in deciding the better route was to order a new trial to remedy the
inadequate damages problem.

Next, GM draws our attention to an “odd pattern of jury deliberations.” See
Phav, 915 F.2d at 768 (“In addition to inadequate damages, the telltale signs of a
compromise verdict are a close question of liability and an odd chronology of jury
deliberations.”). The basis for this argument is a note the jury submitted two hours

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into their deliberations asking whether Bavlsik would recover the stipulated amount
of past medical expenses—about $577,000—“regardless of our decision.” The trial
court informed the jury Bavlsik would recover that sum only if the jury found GM
liable. The jury reached a unanimous verdict for $1 million two hours later.

GM tries to analogize this to the situation in Skinner v. Total Petroleum, Inc.,
859 F.2d 1439 (10th Cir. 1988). In Skinner, the jury asked to see “testimony relating
solely to the issue of liability” during the second day of deliberations. Id. at 1446.
Then the jury explicitly “informed the court that it was unable to reach a unanimous
decision.” Id. The court told the jury to continue its effort, and a short time later
there was a unanimous verdict. See id. The Tenth Circuit found the “sudden arrival
at unanimity, when just a few hours before [the jury] was still struggling with an
apparently close issue of liability,” to be “suspect.” Id.

Those are not the facts here. The jury deliberated for only four hours, a
reasonable (if not short) length of time for a complex eleven-day trial. See Boesing,
540 F.3d at 889-90 (rejecting a compromise claim despite multiple days of
deliberations, an Allen charge, and lower-than-expected damages); see also Burger
King Corp. v. Mason, 710 F.2d 1480, 1488 (11th Cir. 1983) (“After a long, protracted
trial, the jury required only two to three hours to reach its verdict. It obviously was
not deadlocked.”). While the jury’s question could indicate a struggle with liability,
it could also be read as a request for clarification on what the jury needed to account
for in deciding damages or whether the jury could add to or reduce the stipulated
number if they saw fit to do so. After all, this was the only pre-filled answer on the
verdict form and the instructions made clear the plaintiffs’ right to recover was
dependent on the jury first finding GM liable. Much like the inadequate damages,
this factor raises the possibility the jurors compromised but it does not compel such
a conclusion. See Boesing, 540 F.3d at 889-90; see also Phav, 915 F.2d at 768
(stating “[t]here [wa]s nothing in the deliberation process indicating a compromise

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verdict” even though the jury deliberated for four hours, asked if the verdict had to
be unanimous, and had the court repeat the liability instruction).

That leaves GM’s argument about the close liability question and the jury’s
seemingly inconsistent verdict—how could the jury find rollover testing would have
led to a better design capable of preventing Bavlsik’s injuries if the jury seemingly
rejected the only design alternatives the plaintiffs offered?9 We admit we share GM’s
confusion about how the jury reached the conclusion it did. But the proper way to
resolve this problem would have been for GM to object to the format of the verdict
form or the final verdict itself—it did neither. See Chem-Trend, Inc. v. Newport
Indus., Inc., 279 F.3d 625, 629 (8th Cir. 2002).

The First Circuit faced a similar situation in Phav v. Trueblood, Inc., where the
jury’s causation findings could not be reconciled with one another. See Phav, 915
F.2d at 765. The court affirmed a second trial solely on damages, notwithstanding
this apparent inconsistency, because the defendant failed to object to the special
interrogatories or the jury’s verdict. See id. at 769. Our sister circuit reasoned:

[T]he use of special interrogatories puts the parties on notice that there
might be an inconsistent verdict. If a slip has been made, the parties
detrimentally affected must act expeditiously to cure it, not lie in wait
and ask for another trial when matters turn out not to their liking.

9
An inconsistent verdict is one in which the jury “reach[es] contradictory
factual findings.” Lowry ex rel. Crow v. Watson Chapel Sch. Dist., 540 F.3d 752,
762 (8th Cir. 2008). GM resists classifying this argument as one about inconsistent
verdicts, but we see no other way to characterize it. If GM thought the failure-to-test
theory was only viable if the jury found for Bavlsik and Skelly on one of their other
alleged theories, then GM should not have allowed the jury to be instructed that
failure to test was an independent basis for liability (or at least objected when the jury
reached that conclusion). The jury merely followed the instructions given to it.

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 . . . Because of defendant’s waiver, we do not consider the jury’s
answers to the special questions as evidence of its confusion on liability.
To decide otherwise would countenance agreeable acquiescence to
perceivable error as a weapon of appellate advocacy.

Id. (citation and internal quotation marks omitted); see Fox v. City Univ. of N.Y., 187
F.R.D. 83, 92 (S.D.N.Y. 1999) (“In [Phav], the First Circuit held that a party’s failure
to object to the form of the special interrogatories submitted to the jury precluded a
subsequent argument that the answers indicated a compromise verdict.”); see also
Buchwald v. Renco Grp., Inc. (In re Magnesium Corp. of Am.), 682 F. App’x 24, 29-
30 (2d Cir. 2017) (summary order) (rejecting a compromise-verdict claim “because
that would sneak [a waived inconsistency claim] in through the back door, while
undermining the principle that the jury must be given the opportunity to reconcile any
apparent or alleged inconsistency in the first instance” (alteration in original) (citation
and internal quotation marks omitted)) pet. for cert. filed (U.S. Aug. 09, 2017) (No.
17-228); cf. Reider, 793 F.3d at 1261 (“[N]ot all inconsistent verdicts are compromise
verdicts.”).

We agree with this reasoning and refuse to consider the jury’s unclear answers
in deciding whether there was an improper compromise. Our analysis may have been
different had GM preserved the issue for our review. But GM did not do so, perhaps
because making a timely objection to the verdict might have reduced its odds of
prevailing. Now the confusion lingers on appeal in a repackaged argument about a
compromise verdict. We decline to make Bavlsik and Skelly pay the price for GM
not acting on this perceived error in a timely manner.

Having closely reviewed the record, we are not convinced the record so clearly
demonstrates a compromise verdict that the trial court abused its discretion in not

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recognizing as much.10 See Boesing, 540 F.3d at 889. The facts are such there were
a number of options the trial court could choose from in deciding whether a new trial
was warranted, and if so, how much of the case should be retried. Because we are
satisfied the issues regarding damages and liability are “distinct and separable” from
one another, a new trial for Bavlsik’s future damages and Skelly’s past and future
damages was one of those permissible options. Champlin, 283 U.S. at 500.

III. CONCLUSION
We reverse the trial court’s decision to grant GM’s renewed motion for JML,
and affirm the trial court’s conditional grant of a partial new trial on damages.
______________________________

10
To the extent GM renews its arguments about whether substantial evidence
supports the jury’s liability finding, we refer to our lengthy discussion earlier in
regards to JML and the trial court’s conclusion on the issue. See Children’s Broad.
Corp. v. Walt Disney Co., 357 F.3d 860, 867 (8th Cir. 2004).

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