Case: 19-20140 Document: 00515976684 Page: 1 Date Filed: 08/12/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-20140 August 12, 2021
Lyle W. Cayce
Clerk
Erica Fulton,
Plaintiff—Appellee,
versus
United Airlines, Incorporated; Air Serv Corporation,
Defendants—Appellants.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:17-CV-528
ON PETITION FOR REHEARING
Before King, Elrod, and Willett, Circuit Judges.
Per Curiam:*
IT IS ORDERED that the defendants’ petition for rehearing is
GRANTED. We now substitute this opinion for the one previously issued.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 19-20140 Document: 00515976684 Page: 2 Date Filed: 08/12/2021
No. 19-20140
United Airlines and Air Serv appeal the district court’s final judgment
awarding damages to Erica Fulton following a jury trial. Because there was
sufficient evidence to support the jury’s verdict, we AFFIRM.
I.
In 2008, Fulton was diagnosed with a degenerative spinal condition
that medically forced her to retire in 2012 and to begin using a wheelchair in
2014. 1 As a result of her condition, Fulton lost the use of her legs and became
more dependent on her arms for most aspects of her life, including mobility.
Because of her disabilities, Fulton requires special assistance when boarding
planes.
On September 4, 2016, Fulton traveled from her home in Florida to
Austin, Texas to visit her son for his birthday. Fulton flew from Tampa,
Florida to Houston, Texas where she then boarded another plane for a
connecting flight to Austin. Fulton was able to board and deboard her first
flight uneventfully.
Her second flight, however, did not go as smoothly. While boarding
her connecting flight in Houston, two Air Serv employees were assisting
Fulton in transitioning from her wheelchair to her seat. 2 Despite there being
two employees present to help Fulton to her seat, only one was actively
engaged. While one employee stepped away, the other employee picked
Fulton up and attempted to shuffle sideways to move her to her seat.
1
In reviewing a district court’s denial of a motion for a new trial, we must view the facts
“in the light most favorable to the jury’s verdict.” Baisden v. I’m Ready Prods., Inc., 693 F.3d
491, 504 (5th Cir. 2012).
2
United contracted with Air Serv to provide special assistance to disabled passengers
while boarding planes.
2
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Before Fulton made it to the seat, the employee lost control and
dropped her. Fulton slammed into the side wall of the plane, hitting her
shoulder. This resulted in an immediate surge of pain to her shoulder. The
employee grabbed Fulton, put her in her seat and left while stating, “There,
you’re okay.”
Fulton tried to get the attention of the flight attendants for help but
was unable to do so as they were busy helping other passengers board the
plane. After takeoff, Fulton was able to get a flight attendant’s attention.
The flight attendant instructed Fulton to file a complaint once they landed,
but there was nothing the flight attendant could do about Fulton’s injury until
then. At Fulton’s request, the flight attendant retrieved some medication
from Fulton’s bag to alleviate her pain.
Once Fulton arrived in Austin, she reported the incident and was
given a phone number to call to lodge a complaint. Fulton was also informed
by United that, during the trip, her specialized wheelchair had been damaged
and rendered useless. These events caused her significant pain and made her
trip to visit her son very difficult. Fulton decided to wait to see her doctors
in Florida, who were aware of her preexisting conditions, rather than go
through excessive testing with new doctors in Austin, who were unfamiliar
with her.
Upon her return to Florida, Fulton scheduled an appointment with
her primary care physician, Dr. King, to examine her shoulder. Dr. King
referred her to Dr. Tedder and PrimaCare, who performed an MRI that
revealed “[s]evere interstitial tearing . . . with associated partial-thickness
tear of the bursal surface.” After viewing the MRI in October, Dr. Tedder
recommended surgery. However, he was unable to fit Fulton into his
schedule for several months.
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Fulton was able to find another surgeon, Dr. Watson, who thought he
could operate more quickly. Even so, seven months passed before she was
able to have the operation. During that time, Fulton experienced significant
pain. She lost much of her independence, as she had previously relied heavily
on her arms for most aspects of daily life.
Fulton filed this lawsuit in Texas state court against United, Air Serv,
and the unnamed employee who dropped her. The defendants removed the
case to federal court on the basis of diversity jurisdiction. A federal jury
returned a verdict in favor of Fulton. The jury awarded Fulton just over $3.8
million in damages. That award included compensation for past medical
expenses, future medical expenses, past physical impairment, future physical
impairment, past disfiguration, past physical pain and mental anguish, and
future physical pain and mental anguish. Thereafter, United and Air Serv
made a renewed motion for judgment as matter of law or, in the alternative,
either a new trial or remittitur. The district court denied both motions.
United and Air Serv now appeal.
II.
In their appeal, United and Air Serv first challenge the denial of their
renewed motion for judgment as a matter of law under Federal Rule of Civil
Procedure 50(b) based on insufficient evidence of medical causation.
Because the evidence that Fulton provided to the jury was sufficient under
Texas law, we affirm the district court’s dismissal of the defendants’ motion.
A.
“This court reviews the denial of a Rule 50(b) renewed motion for
judgment as a matter of law de novo, ‘but [its] standard of review with respect
to a jury verdict is especially deferential.’” Apache Deepwater, L.L.C. v. W&T
Offshore, Inc., 930 F.3d 647, 652–53 (5th Cir.) (quoting Olibas v. Barclay, 838
F.3d 442, 448 (5th Cir. 2016)), cert denied 140 S. Ct. 649 (2019). “A party is
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only entitled to judgment as a matter of law on an issue where no reasonable
jury would have had a legally sufficient evidentiary basis to find otherwise.”
Id. at 653; accord Fed. R. Civ. P. 50(a)(1). “We credit the non-moving party’s
evidence and disregard all evidence favorable to the moving party that the
jury is not required to believe.” Janvey v. Romero, 817 F.3d 184, 187 (5th Cir.
2016) (quoting Carroll v. Ellington, 800 F.3d 154, 168 (5th Cir. 2015)).
B.
During the trial, Fulton and her caretaker testified that after the
accident Fulton lost substantial strength and mobility in her right arm,
rendering it useless. Fulton’s medical records reveal no prior shoulder
injuries. Further, the record reflects that Fulton’s preexisting condition
affects only her spine and has never affected her shoulder or arms. Fulton
explained that when she was dropped, she experienced immediate and
excruciating pain. After her return home, she sought medical treatment, and
an MRI revealed “severe interstitial tearing.” In addition to Fulton’s own
testimony and that of her caregiver, her treating physician, Dr. Watson,
testified that Fulton had suffered a full-thickness rotator cuff tear and a torn
bicep. Dr. Watson testified that it was obvious that Fulton’s torn rotator cuff
was not a result of degeneration. Dr. Watson also opined that Fulton’s
injuries were a result of being dropped while boarding her flight.
Nevertheless, United and Air Serv contend that the evidence
presented at trial was insufficient to establish causation under Texas law
because Fulton failed to designate an expert witness to provide testimony
regarding medical causation. Under Texas law, “expert testimony is
necessary to establish causation as to medical conditions outside the common
knowledge and experience of jurors.” Guevara v. Ferrer, 247 S.W.3d 662, 665
(Tex. 2007). In the defendants’ view, Fulton’s preexisting spinal condition
makes her shoulder injury a medical condition outside the “common
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knowledge and experience.” Id. Therefore, lay testimony alone would not
enable a jury to find causation for Fulton’s injury. United and Air Serv
further argue that because Dr. Watson, Fulton’s treating physician, was not
designated as an expert witness, his testimony was lay testimony and
therefore insufficient to establish the necessary medical causation.
The defendants’ contention fails. Under Texas law, “[l]ay testimony
is adequate to prove causation in those cases in which general experience and
common sense will enable a layman to determine, with reasonable
probability, the causal relationship between the event and the condition.”
Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984). Although
United and Air Serv contend that Fulton’s preexisting spinal condition
muddies the waters, there is no evidence in the record that Fulton’s spinal
injury has ever affected her shoulder. A fall and a torn rotator cuff are exactly
the sort of “event[] and condition[] of a basic nature” for which lay testimony
suffices under Texas law. Guevara, 247 S.W.3d at 668. Moreover, even
assuming arguendo that lay testimony were not enough, the district court
allowed Dr. Watson, who was Fulton’s treating physician, to testify about
Fulton’s diagnosis and his course of treatment for Fulton. This was well
within the district court’s discretion.
Fulton’s evidence, which included not only the testimony of Fulton
and her caregiver, but also the testimony of her surgeon and her medical
records, was sufficient to establish causation. Therefore, we affirm the
district court’s denial of the defendants’ Rule 50(b) motion.
III.
The defendants next challenge the district court’s denial of their
motion for a new trial or remittitur asserting that the jury’s damage award
was grossly excessive. We review the denial of both a motion for a new trial
and a motion for remittitur using the deferential abuse of discretion standard.
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See Olibas, 838 F.3d at 448 (motion for a new trial); Longoria v. Hunter
Express, Ltd., 932 F.3d 360, 364 (5th Cir. 2019) (motion for remittitur). “The
district court abuses its discretion by denying a new trial only when there is
an ‘absolute absence of evidence to support the jury’s verdict.’” McCaig v.
Wells Fargo Bank (Tex.), N.A., 788 F.3d 463, 472 (5th Cir. 2015) (quoting
Wellogix, Inc. v. Accenture, L.L.P., 716 F.3d 867, 881 (5th Cir. 2013)).
We look to state law on this question. Cf. Gasperini v. Ctr. for
Humanities, Inc., 518 U.S. 415, 418, 430–31 (1996). Under Texas law, we
consider whether “the evidence introduced at trial would allow a reasonable,
fair-minded jury to come to the verdict the actual jury reached.” Longoria,
932 F.3d at 365. While this standard may include an analysis of verdicts in
similar cases, we reverse only when the damages awarded are “so factually
insufficient or so against the great weight and preponderance of the evidence
as to be manifestly unjust.” Pope v. Moore, 711 S.W.2d 622, 624 (Tex. 1986).
A.
The defendants argue that the jury’s award of damages for past and
future physical pain and mental anguish is unsupported by the evidence and
is grossly excessive under Texas law. At trial, Fulton presented evidence that
she had suffered a substantial amount of pain and mental anguish as a result
of her injury. During the several months that passed while Fulton awaited
surgery, her medical records show that she frequently complained of having
trouble sleeping and rated the pain in her shoulder as an eight out of ten
during multiple appointments. Moreover, Fulton’s surgeon testified that,
even with surgery, it would not be possible for her shoulder to become pain
free again. He further stated that she would likely require future painful
surgeries, steroid injections, and physical therapy to control the pain.
The jury’s award for physical pain and mental anguish was not against
the great weight and preponderance of the evidence. Therefore, the district
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court did not abuse its discretion in denying the defendants’ motion for a new
trial based on the jury’s award.
B.
United and Air Serv next challenge the jury’s award for past
disfigurement. Under Texas law, disfigurement is defined as “that which
impairs or injures the beauty, symmetry, or appearance of a person or thing;
that which renders unsightly, misshapen or imperfect, or deforms in some
manner.” Goldman v. Torres, 341 S.W.2d 154, 160 (Tex. 1960).
Fulton presented sufficient evidence to the jury to support the verdict
awarding damages for past disfigurement. There was testimony that after the
incident, Fulton’s shoulder was bruised and “always swelling up.” The
record also established that Fulton’s surgery required her doctor to poke two
holes in her shoulder. Those holes had to be large enough for medical
instruments to be inserted through to conduct the surgery. Given the nature
of the surgery, it would be a reasonable inference for the jury to conclude that
Fulton likely suffered some scarring as a result of the operation.
The assessment of the award “boils down to whether the evidence
introduced at trial would allow a reasonable, fair-minded jury to come to the
verdict the actual jury reached.” Longoria, 932 F.3d at 365. Here, a jury could
“draw reasonable inferences from the evidence, and those inferences may
constitute sufficient proof to support a verdict.” Wackman v. Rubsamen, 602
F.3d 391, 399 (5th Cir. 2010) (quoting McBeth v. Carpenter, 565 F.3d 171, 176
(5th Cir. 2009)); see also Moore Freight Servs., Inc. v. Munoz, 545 S.W.3d 85,
96 (Tex. App.—El Paso 2017, pet. denied). The evidence presented regarding
Fulton’s injury and surgery entitled the jury to make a reasonable inference that
Fulton sustained disfigurement as a result of being dropped. Moreover, an
award for past disfigurement following a surgery is in line with analogous Texas
cases. See Hopkins Cnty. Hosp. Dist. v. Allen, 760 S.W.2d 341, 342, 344 (Tex.
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App.—Texarkana 1988, no writ) (upholding a past disfigurement award of
$25,000 (roughly $50,000 adjusted for inflation) for surgical scars on the
plaintiff’s abdomen); see also Wal-Mart Stores, Inc. v. Tinsley, 998 S.W.2d 664,
673 (Tex. App.—Texarkana 1999, pet. denied) (affirming a disfigurement
recovery for a small surgical scar covered by clothing).
Because Fulton presented sufficient evidence to establish
disfigurement, “whether to award damages and how much [was] uniquely
within the factfinder’s discretion.” Golden Eagle Archery, Inc. v. Jackson, 116
S.W.3d 757, 772 (Tex. 2003). Accordingly, the jury’s award for past
disfigurement was well within its discretion. 3
* * *
In sum, Fulton produced sufficient factual evidence to support the
jury’s verdict. Accordingly, we AFFIRM. 4
3
Because United and Air Serv did not properly raise the challenges for past and
future healthcare expenses or overall damages in their motion for a new trial, they have
forfeited their right to contest them on appeal. Generally, “[a]n argument not raised before
the district court cannot be asserted for the first time on appeal.” NCDR, L.L.C. v. Mauze
& Bagby, P.L.L.C., 745 F.3d 742, 752 (5th Cir. 2014) (quoting XL Specialty Ins. Co. v. Kiewit
Offshore Servs., Ltd., 513 F.3d 146, 153 (5th Cir. 2008)).
4
Due to a disagreement between the parties over which exhibits were sent to the
jury, we issued two limited remands to the district court to resolve the issue of what
documents constituted the district court’s record. The district court made a definitive
ruling that the correct exhibits were sent to the jury and are before us now. While the
exhibits were not handled with the care that we would normally expect, we are satisfied that
the district court correctly determined that the November 2019 exhibits are the correct
exhibits. There was no abuse of discretion by the district court regarding the exhibits.
9