Foradori v. Harris

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
April 1, 2008

No. 06-60030 Charles R. Fulbruge III
Clerk

MIKE FORADORI, ETC; ET AL
Plaintiffs
MICHAEL FORADORI, JR.

Plaintiff-Appellee
v.

GARIOUS L HARRIS, ETC; ET AL
Defendants
CAPTAIN D’S, L.L.C.

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:03-CV-669

Before DAVIS, DENNIS, and PRADO, Circuit Judges.
DENNIS, Circuit Judge:
The principal issue in this case is whether the evidence supports a
reasonable jury’s findings that the defendant fast food restaurant operator’s
negligent failures to regulate, train, supervise, and control its off-duty employees
on its premises were proximate causes of the plaintiff customer’s quadriplegia.
We conclude that it does. The jury reasonably could have found from the
evidence that the restaurant operator negligently failed to train and regulate
 No. 06-60030

its employees so as to prevent the undue risk of harm to customers by off-duty
employees on its premises; that the manager in charge of the restaurant
premises negligently failed to supervise and control a hostile off-duty employee
who subjected the plaintiff customer to an altercation inside the restaurant; that
the manager, rather than defusing the altercation, ordered the participants to
take the angry disturbance outside; that the exeunt of protagonists, fellow
employees and excited spectators led directly to the plaintiff being assaulted and
severely injured by one of the employees in the restaurant parking lot; and that
the negligence of the restaurant company and its manager in these respects were
proximate causes of the plaintiff’s injury and disability.

I. Factual Background
The plaintiff, Michael Foradori, a 150-pound fifteen-year-old customer in
a Captain D’s restaurant in Tupelo, Mississippi was challenged to a fight by Al
Cannon, an older teenage restaurant employee, who was off-duty but dressed in
his restaurant uniform. Cannon was angry because he thought Foradori had
been hitting on his girlfriend. As a group of young spectators gathered, Cannon’s
insistence that Foradori go outside to fight grew louder and sharper. The
testimony is in dispute as to whether Garious Harris, another restaurant
employee, as well as other employees, joined Cannon in confronting Foradori.
After berating Foradori for fifteen to twenty minutes, Cannon emphasized his
taunts by throwing a small object into Foradori’s face or head. Foradori testified
that he felt insulted, humiliated, and bullied during the incident; he said he did
not want to fight but at the same time did not want to be seen as “chicken.”
The evidence is in conflict as to whether Peggy King, the restaurant
manager who was in the dining area near the cash registers, should have known

2
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that the escalating altercation created the risk of a fight and bodily harm to
Foradori. Jeremy Shells, a cook working in the kitchen further from the
disturbance than Ms. King, testified that it was apparent that a fight was in the
offing. He characterized the confrontation between Cannon and Foradori in the
dining area as including “fussing and fighting,” “loud voices . . . in an argument,”
“arguing inside the store,” and “arguing on their way out of the store.” He also
testified that when the dispute moved outside, he followed because “they was
already in the store arguing, so the next thing in my mind was, hey, they fixing
to fight.” On the other hand, Ms. King, the parent of a teenager, testified that
the commotion was loud and distracting but that she thought it was only teenage
horse-play. She did not investigate, intervene, or exercise her authority to
control the off-duty workers and protect Foradori from the risk of harm. Instead,
she called out to the noisy teenagers to take the disturbance outside. Cannon
responded by walking out the front door with a group of teenagers and Foradori
close behind. Foradori followed, he said, because he could no longer endure the
humiliation, even though he did not want to fight. Garious Harris, still in his
work uniform, clocked out and joined the crowd that flowed outside to be near
the fight.
In the Captain D’s parking lot, Cannon continued to verbally challenge the
still reluctant Foradori. Ultimately, Cannon invited Foradori to show his mettle
by joining him for a fight in the parking area of the business next door, which
was situated at a lower level than Captain D’s. At the end of the altercation,
however, Foradori was still standing above on the edge of the Captain D’s
parking lot while Cannon taunted him from below. At this point, Harris, a
football player over six feet tall and weighing nearly 250 pounds, sprinted
toward Foradori from behind and struck him with his fist in the back of his neck.

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Harris was running at full speed when he delivered the blow, described as a
“hard punch” with a “balled-up fist” and “a punch like I never seen before.” It
immediately knocked Foradori unconscious, causing him to fall head first to the
concrete surface below. Foradori’s next memory was waking up in the hospital
“after a couple of days.” Foradori suffered a broken neck and severed spine and
was diagnosed with pure C5 sensory loss, meaning that he has no sensation at
all beneath his shoulders. His quadriplegia is permanent. According to the
American Spinal Association scale of measurement, Foradori suffers from the
most severe form of this disability.

II. Proceedings in The District Court
Foradori brought suit in the Circuit Court of Lee County, Mississippi,
seeking damages for injuries resulting from the tortious conduct of Captain D’s,
LLC and others. Defendant Captain D’s removed the case to the United States
District Court for the Northern District of Mississippi based on diversity of
citizenship of the parties.1
After initially denying Captain D’s motion for summary judgment, the
district court reconsidered its ruling and granted summary judgment in respect
to plaintiff’s premises liability claims.
The case proceeded to a trial by jury on October 3, 2005, and at trial,
plaintiff’s counsel called a number of liability-fact witnesses. Foradori, Shells,
and King testified to their versions of the events. According to the testimony of
Foradori and Shells, the argument between Cannon and Foradori was

1
All defendants other than Captain D’s, including Garious Harris, were subsequently
dismissed by agreement or summary judgment.

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sufficiently loud and apparent to make it clear to any reasonably observant
person in the restaurant, particularly a manager in charge, that a fight was
brewing. Foradori testified that the argument, lasting “15 [to] 20 minutes,” “got
louder and louder as it went on,” drew a crowd of spectators, and “was loud
enough that [the Captain D’s managers] could have heard it.”2 Shells
corroborated this description of the events, stating that even from his position
in the kitchen he could hear the “loud voices . . . in an argument” “fussing and
fighting” and that his immediate thought when the group began exiting the
restaurant was that “they fixin to fight.” King testified that her only concern at
the time was that what she thought was the “horse-play” of a group of disruptive
teenagers was disturbing her cashiers.3 Foradori also called Jerry Rhodes, the
general manager of the Captain D’s restaurant, who admitted that under no
circumstances should restaurant employees intimidate or assault customers;
that managers, such as Ms. King, are obligated to take action to stop
confrontations between customers and employees; and that failure to do so is a
violation of restaurant and company policy. Finally, Foradori called Phil Purcell,
an attorney serving as Captain D’s risk manager and corporate representative,
who admitted that the Captain D’s employees’ conduct, if as alleged, violated

2
[Plaintiff counsel] Q : All right. Did you see Captain D’s management in the store that
night?
[Foradori] A: Yes, sir.
Q: Were they around the people who were harassing you?
A: They were close, I know they could have heard it. It was loud enough they could
have heard it.
3
King recalled that Garious Harris was one of the individuals making noise, although
she did not remember seeing Al Cannon and could not identify any other person in the
gathering. The evidence indicates that Harris may have clocked out later, immediately before
he assaulted Foradori in the parking lot.

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Captain D’s policy against on-premises customer assault; that an employee’s
assault on a customer likely warranted his discharge;4 and that a manager who,
knowing that an employee was acting disrespectfully to a customer, failed to
intervene would violate company policy. In fact, Purcell conceded that if
Foradori’s injury occurred as Foradori and Shells described it, Captain D’s
should be responsible.5
At the close of Foradori’s case, Captain D’s rested without calling any
witnesses. Captain D’s then moved for a judgment as a matter of law dismissing
all of Foradori’s claims. The district court granted the motion in part, dismissing
Foradori’s action to hold Captain D’s vicariously liable for Harris’s assault upon
Foradori because that intentional tort was outside the scope and course of
Harris’s employment. But the court also denied the motion in part, refusing to
dismiss Forardori’s claims based on Captain D’s negligent failure to regulate,
train, supervise and control its managers and employees, and submitted those
negligence claims to the jury.
Following closing arguments, the district court charged the jury on the
elements underlying Foradori’s claims based on Captain D’s alleged negligent
failure to supervise, control, and train its employees in order to protect its

4
Neither Cannon nor Harris was discharged after the incident.
5
Q: Assuming a member of the public is confronted by your employees, drawn outside
by your employees to fight, and to be watched by other employees, assume that the
manager told them to go outside, and assume that one of your employees, who just
seconds earlier was told to go outside, clocks out, severely injures that customer. You’re
responsible, aren’t you?

A: Assuming all those statements, is the company responsible? To the extent
of those assumptions, I would say yes.

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customers from undue risk of harm. The district court noted that this court, in
Williams v. United States Fidelity & Guaranty Co., 854 F.2d 106, 109 (5th Cir.
1988), indicated that Mississippi law places a duty on employers to control a
servant’s conduct outside the scope of employment but on the employer’s
premises comparable to the duty imposed by the Restatement (Second) of Torts
§ 317.6 Accordingly, the district court followed the principles of § 317 in
instructing the jury as follows:
An employer is under a duty to exercise reasonable care to
train and supervise its employees so as to prevent the employee
from harming others or from so conducting himself as to create an
unreasonable risk of bodily harm to others.
The duty to supervise applies if the employee is upon the
premises in possession of the employer and the employer knows or
has reason to know that he has the ability to control his employee

6
Restatement (Second) of Torts § 317 (1965) provides:

Duty of Master To Control Conduct Of Servant

A master is under a duty to exercise reasonable care so to control
his servant while acting outside the scope of his employment as
to prevent him from intentionally harming others or from so
conducting himself as to create an unreasonable risk of bodily
harm to them, if
(a) the servant
(i) is upon the premises in possession of the master or upon which
the servant is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the ability to control his
servant, and
(ii) knows or should know of the necessity and opportunity for exercising
such control.

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and knows or should know of the necessity and opportunity for
exercising such control.7

Neither the plaintiff nor the defendant raised or preserved any objection
for appeal as to this part of the district court’s jury instructions.
The jury returned a verdict in favor of Foradori, awarding him $10 million
for past, present, and future physical pain and suffering, mental anguish, and
the loss of enjoyment in life; $1,581,884.41 for reasonable and necessary medical
expenses already incurred; $8 million for the present value of the reasonable and
necessary medical expenses reasonably likely to be incurred in the future; and
$1,300,000 for the present value of loss of future earnings or earning capacity
resulting from his disability.
The district court entered judgment on the verdict. Captain D’s filed a
combination motion renewing its motion for judgment as a matter of law and
moving, alternatively, for a new trial or remittitur. The district court denied the
motion in its entirety.

7
The district court’s instruction continued:

The premises of the defendant Captain D’s LLC includes all property
owned, possessed, occupied or controlled by Captain D’s LLC regardless of the
holder of formal title to the property. If you find by a preponderance of the
evidence that defendant Captain D’s LLC failed to exercise due care in training
its employees in this case with the proximate result that Michael Foradori was
injured you shall find Captain D’s to have been negligent
Similarly, if you find by a preponderance of the evidence that the
defendant Captain D’s LLC failed to exercise due care in supervising its
employees with the proximate result being Michael Foradori was injured, you
shall find Captain D’s to have been negligent.

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Captian D’s filed a timely notice of appeal, challenging the district court’s
denial of judgment as a matter of law and, alternatively, seeking a new trial or
remittitur.

III. Discussion
A. District Court’s Denial of Motion for Judgment as a Matter of Law
“We review de novo the district court’s denial of a motion for judgment as
a matter of law, applying the same standard as the district court.” Int’l Ins. Co.
v. RSR Corp., 426 F.3d 281, 296 (5th Cir. 2005) (citing Cozzo v. Tangipahoa
Parish Council-President Gov’t, 279 F.3d 273, 280 (5th Cir. 2002)); see also
Lyrick Studios, Inc. v. Big Idea Prod., Inc., 420 F.3d 388, 391 (5th Cir. 2005);
Serna v. City of San Antonio, 244 F.3d 479, 481 (5th Cir. 2001). But when a case
is tried by a jury, a Rule 50(a) motion is a challenge to the legal sufficiency of the
evidence.8 Int’l Ins. Co., 426 F.3d at 296 (citing Brown v. Bryan County, 219 F.3d
450, 456 (5th Cir. 2000)). In resolving such challenges, we draw all reasonable
inferences and resolve all credibility determinations in the light most favorable
to the nonmoving party. Id. (citing Reeves v. Sanderson Plumbing Prods. Inc.,
530 U.S. 133, 150 (2000)). Thus, we will reverse the denial of a Rule 50(a)
motion only if the evidence points so strongly and so overwhelmingly in favor of
the nonmoving party that no reasonable juror could return a contrary verdict.
Id. (citing Cousin v. Trans Union Corp., 246 F.3d 359, 366 (5th Cir. 2001)). A

8
We apply this same 50(a) standard when we review a renewed motion for judgment
as a matter of law under 50(b). See Lubbock Feed Lots, Inc. v. Iowa Beef Processors, Inc., 630
F.2d 250, 269 n.22 (5th Cir. 1980) (citing 9 Wright & Miller, Federal Practice and Procedure:
Civil § 2524 (1971)); see also 9B Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 2524 (2d ed. 2007).

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jury verdict must be upheld unless “there is no legally sufficient evidentiary
basis for a reasonable jury to find” as the jury did. Id. at 296-97 (citing
Fed.R.Civ.P. 50(a)(1); Hiltgen v. Sumrall, 47 F.3d 695, 700 (5th Cir. 1995)).
This court has consistently applied this standard to show appropriate
deference for the jury’s determination. As we have explained:

A jury may draw reasonable inferences from the evidence, and
those inferences may constitute sufficient proof to support a verdict.
On appeal we are bound to view the evidence and all reasonable
inferences in the light most favorable to the jury’s determination.
Even though we might have reached a different conclusion if we had
been the trier of fact, we are not free to re-weigh the evidence or to
re-evaluate credibility of witnesses. We must not substitute for the
jury’s reasonable factual inferences other inferences that we may
regard as more reasonable.

Id. (citing Hiltgen, 47 F.3d at 700); Rideau v. Parkem Indus. Serv., Inc., 917 F.2d
892, 897 (5th Cir. 1990)).
Federal diversity jurisdiction provides an alternative forum for the
adjudication of state-created rights, but it does not carry with it generation of
rules of substantive law. Under the Erie doctrine, federal courts sitting in
diversity apply state substantive law and federal procedural law. Gasperini v.
Ctr. For Humanities, Inc., 518 U.S. 415, 426-427 (1996).
In this diversity case, the district court and this court must apply the
substantive negligence law of Mississippi. See Erie v. Tompkins, 304 U.S. 64,
78-79 (1938); Am. Nat’l Gen. Ins. Co. v. Ryan, 274 F.3d 319, 328 (5th Cir.2001).
In the absence of applicable statutes, the rules of common law negligence apply
in Mississippi. See Chadwick v. Bush, 163 So. 823, 824 (Miss. 1935); Amy D.

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Whitten & Deanne M. Mosley, Caught in the Crossfire: Employers’ Liability for
Workplace Violence, 70 Miss. L. J. 505, 517 (2000). Accordingly, Mississippi has
long imposed on every person who undertakes an action a duty of reasonable
care to protect against causing injury to others, see Dr. Pepper Bottling Co. of
Miss. v. Bruner, 148 So. 2d 199, 201 (Miss. 1962), and while this duty requires
that precautions be taken only against foreseeable risks, “in satisfying the
requirement of foreseeability, a plaintiff is not required to prove that the exact
injury sustained by the plaintiff was foreseeable; rather, it is enough to show
that the plaintiff’s injuries and damages fall within a particular kind or class of
injury or harm which reasonably could be expected to flow from the defendant’s
negligence.” Glover ex rel. Glover v. Jackson State Univ., 968 So. 2d 1267, 1278
(Miss. 2007) (citing City of Jackson v. Estate of Stewart ex rel. Womack, 908 So.
2d 703, 715 (Miss. 2005) and Gulledge v. Shaw, 880 So. 2d 288, 293 (Miss.
2004)).
Mississippi courts, like those of other states, have refined general
negligence principles to require an owner of a business catering to the public to
maintain a reasonably safe environment to protect business invitees from
foreseeable harm by employees and third persons. “Mississippi imposes on
business owners ‘the duty to maintain the premises in a reasonably secure or
safe condition’ for business patrons . . . .” Am. Guar. & Liab. Ins. Co. v. 1906 Co.,
273 F.3d 605, 613 (5th Cir. 2001) (citing Whitehead v. Food Max, Inc., 163 F.3d
265, 271 (5th Cir. 1998) and Lyle v. Mladinich, 584 So. 2d 397, 399 (Miss. 1991)).
To fulfill this duty, businesses must “take reasonably necessary acts to guard
against the predictable risk of assaults,” id. (citing Whitehead, 163 F.3d at 271
(quoting Lyle, 584 So. 2d at 399)), and such a duty “includes the protection of

11
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patrons or invitees from the foreseeable wrongful acts of employees and third
persons on the premises.” See id. at 613-14; see also L.T. ex rel. Hollins v. City
of Jackson, 145 F. Supp. 2d 750, 759 (S.D. Miss. 2000) (citing Little by Little v.
Bell, 719 So. 2d 757, 760 (Miss. 1998); Steele v. Inn of Vicksburg, Inc., 697 So. 2d
373, 377 (Miss. 1997)).
In addition to this broad duty owed to invitees, the Mississippi Supreme
Court, in Tillman ex rel. Migues v. Singletary, 865 So. 2d 350, 353 (Miss. 2003),
expressly quoted and adopted the principles of the Restatement (Second) of
Agency § 213 stating that:

[a] person conducting an activity through servants or other
agents is subject to liability for harm resulting from his conduct if
he is negligent or reckless: (a) in giving improper or ambiguous
orders or in failing to make proper regulations; or (b) in the
employment of improper persons or instrumentalities in work
involving risk or harm to others; (c) in the supervision of the
activity; or (d) in permitting, or failing to prevent, negligent or other
tortious conduct by persons, whether or not his servants or agents,
upon premises or with instrumentalities under his control.

Id. (citing and quoting Restatement (Second) of Agency § 213 (1958)).
In Tillman, the court held that a plaintiff swimmer, who was injured by
a negligent powerboat driver, was entitled to a jury instruction under § 213 on
the theory that the boat owner, who was in the boat at the time of the accident,
had been negligent in his supervision of the driver. The boat owner was also the
driver’s employer, but at that time they were on a weekend outing that was not
work-related.

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The Tillman court approved the use of § 213 only as the basis of a jury
instruction on negligently supervising an activity. However, because the court
embraced all of § 213 with approval and the other negligence principles of § 213
are closely analogous to that of negligent supervision of an activity, we think the
court would apply them as well in an appropriate case. In fact, prior to Tillman
the court had already approved a theory of recovery based on an employer’s
negligent failure to train or regulate its employees. See Gamble ex rel. Gamble
v. Dollar Gen. Corp., 852 So. 2d 5, 14 (Miss. 2003) (holding that “[b]ased on
Dollar General’s failure to show any training provided to [its employee], other
than handing her a manual, it was proper to allow the jury to consider the issue
of negligence for Dollar General’s failure to train its employee”).
The comments under § 213 deal with the applications of the rule to some
of the specific situations which commonly involve a principal or master and
indicate different ways in which a principal or master may be negligent. See
Restatement (Second) of Agency § 213 cmt. a (1958). The comments most
pertinent to the present case are:

g. Inadequate regulations. A master is negligent if he fails to use
care to provide such regulations as are reasonably necessary to
prevent undue risk of harm to third persons or to other servants
from the conduct of those working under him. One who engages in
an enterprise is under a duty to anticipate and to guard against the
human traits of his employees which unless regulated are likely to
harm others. He is likewise required to make such reasonable
regulations as the size or complexity of his business may require.

id. at cmt. g (citing Restatement (Second) of Torts § 317) (internal citation
omitted); and

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i. Acquiescence in tortious conduct. A master is subject to liability as
the possessor of premises for conduct of a servant thereon, or in fact
the conduct of anyone, to the continuance of which he consents after
he knows or should know that such conduct contains an
unreasonable risk of harm to licensees or those upon adjacent roads
or premises. Failure on the part of the possessor of premises to
prevent negligent conduct thereon by others does not necessarily
make him responsible. If, however, being in control of the premises
and of the persons acting by the fact that he is their principal or
master, he does not object to dangerous conduct, his inaction may
cause him to be liable to persons harmed by it. In such case, liability
is based not merely upon the fact that he is the possessor of things
which he is under a duty to prevent from harming another, which
comes within the rule stated in Section 214, but upon the fact that
by permitting another to use them in a dangerous manner he is
aiding the dangerous conduct.

id. at § 213 cmt. i.
As the foregoing comments indicate, the principles of Restatement
(Second) of Agency § 213 and Restatement (Second) of Torts § 317 are similar
and interrelated. Section 317 of the Restatement (Second) of Torts provides:

A master is under a duty to exercise reasonable care so to
control his servant while acting outside the scope of his employment
as to prevent him from intentionally harming others or from so
conducting himself as to create an unreasonable risk of bodily harm
to them, if
(a) the servant
(i) is upon the premises in possession of the master or upon
which the servant is privileged to enter only as his servant, or
(ii) is using a chattel of the master, and
(b) the master
(i) knows or has reason to know that he has the ability to
control his servant, and

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(ii) knows or should know of the necessity and opportunity for
exercising such control.

Restatement (Second) of Torts § 317 (1965). Thus, § 317 provides that a master
is under a duty to use reasonable care to control the actions of his servant while
the servant is acting outside the scope of his employment to prevent him from
intentionally harming others or from so conducting himself as to create an
unreasonable risk of bodily harm to them, if the servant is on the master’s
premises and the master knows or has reason to know that he has the ability to
control his servant, and knows or should know of the necessity and opportunity
for exercising such control.
In view of the Mississippi Supreme Court’s adoption of the Restatement
(Second) of Agency § 213 principles in Tillman, and their similarity and partial
overlap with the Restatement (Second) of Torts § 317 principles, we conclude
that the highest court of Mississippi would apply the similar principles of both
of those Restatement sections in determining the questions of negligence and
proximate cause in the present case. Our conclusion in this respect is bolstered
by our circuit precedent in Williams, 854 F.2d at 109, recognizing that the
Restatement (Second) of Torts § 317 sets the proper limits in Mississippi of an
employer’s duty to control a servant’s conduct outside the scope and place of
employment. Further, this view is consistent with the well established duty that
Mississippi imposes upon a business proprietor to exercise reasonable care to
protect a patron from reasonably foreseeable risks of harm by others on the
business premises. See Lyle, 584 So. 2d at 399; Grisham v. John Q. Long V.F.W.
Post, 519 So. 2d 413, 417 (Miss. 1988); Kelly v. Retzer & Retzer, Inc., 417 So. 2d
556, 560 (Miss. 1982); Joan Teshima, Annotation, Tavernkeeper’s Liability to

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Patron for Third Person’s Assault, 43 A.L.R. 4th 281 (1986). Moreover, in related
tort contexts the Mississippi Supreme Court has generally accepted and applied
Restatement principles when relevant.9 The parties essentially agree that these
are the principles of law that the district court was required to follow in
instructing the jury and deciding the motion for judgment as a matter of law and
that this court must apply the same precepts in reviewing the district court’s
decision.10
1.
In this case, the district court, in denying Captain D’s motion for judgment
as a matter of law in respect to the negligent acts and omissions of its manager,
Ms. King, in failing to control its employees on its premises, explained:
[T]he burden [was] upon plaintiff to demonstrate that at least
one Captain D’s employee [other than Garious Harris], acting in the

9
See, e.g., Glover, 968 So. 2d at 1282 (noting that the Mississippi Supreme Court has
relied on the Restatement of Torts for its discussion of foreseeability of injury); Entrican v.
Ming, 962 So. 2d 28, 35 (Miss. 2007) (applying Restatement (Second) of Torts § 448 to define
“superseding cause”); Rein v. Benchmark Constr. Co., 865 So. 2d 1134, 1144-45 (Miss. 2004)
(adopting Restatement (Second) of Torts § 435 for the proposition that the extent of an injury
does not prevent it from being foreseeable); Farmer v. B&G Food Enter., Inc. 818 So. 2d 1154,
1157 (Miss. 2002) (applying Restatement (Second) of Torts § 345 in determining whether
plaintiff held invitee status); Wal-Mart Stores, Inc. v. Johnson, 807 So. 2d 382, 388 (Miss. 2001)
(citing Restatement (Second) of Torts § 448 to elucidate the scope of intervening cause);
Hudson v. Courtesy Motors, Inc., 794 So. 2d 999, 1003 (Miss. 2001) (noting the Mississippi
Supreme Court’s reliance on Restatement (Second) of Torts § 332 in defining and classifying
invitees).
10
In its briefs, Captain D’s generally embraces the principles of Restatement (Second)
of Agency § 213 and Restatement (Second) of Torts § 317, although it tends to reshape or
selectively employ them in its individual arguments. For example, Defendant relies heavily
on the section of the Williams opinion that we based on Restatement § 317. See Appellants’s
Brief at 9, 16. Similarly, in suggesting jury instructions at trial, Captain D’s offered an
instruction based on Williams, though the district court rejected it and used a more complete
summary of the relevant Restatement provision. Captain D’s offered no objection to the court’s
instruction based on § 317.

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scope of his or her employment, acted negligently in this case and
that this negligence was a proximate cause of plaintiff’s injuries.
The jury found that plaintiff carried this burden of proof, and this
conclusion was, in the court’s view, supported by the evidence at
trial. In particular, there was substantial testimony at trial
suggesting that manager Peggy King acted negligently in this case,
and Captain D’s does not dispute that King’s actions were taken in
the course and scope of her employment as a Captain D’s manager.
In denying directed verdict as to plaintiff’s negligence claims, the
court wrote as follows:

[T]estimony at trial indicated that the assault in this
case did not arise “out of the blue,” but, rather, was
preceded by a period of verbal confrontation between
Foradori and Al Cannon, a Captain D’s employee.
Foradori testified that this confrontation was a loud one
which should have been overheard by Captain D’s
management personnel, and the testimony at trial
indicated that restaurant chef Jeremy Shells, who was
in the kitchen area, overheard the verbal confrontation
in the dining area and went out to witness what he
believed would be a fight. Moreover, Captain D’s
manager Peggy King admitted at trial that she heard
the verbal exchanges between Foradori and Cannon,
and she further testified that she ordered the young
men to take their dispute outside. King maintained that
she only felt that “horseplay” was taking place between
the young men, but she conceded that she did not
investigate the matter further to determine the true
facts in this regard. In the court’s view, the
aforementioned facts create fact issues as to whether,
unlike the sudden assault in Mays, Captain D’s
management either knew or, in the exercise of
reasonable supervision should have known, of the
confrontation which was brewing in their restaurant.

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In light of the foregoing, there were clearly triable fact issues in this
case as to whether King was negligent and whether that negligence
was the proximate cause of plaintiff’s injuries.
The jury apparently chose to believe Shells’ testimony that he
went outside the restaurant with the full expectation of seeing a
fight. Specifically, Shells testified that:

I seen a crowd of people go outside and they was
already in the store arguing so the next thing in my
mind was, hey, they fixing to fight. So I went out behind
them.

Shells also testified that, prior to the young men going outside, he
could hear “loud voices” in the restaurant which clearly indicated to
him that an argument was taking place. With regard to Harris’
assault on Foradori, Shells testified that while Cannon and Foradori
were facing off outside:

I turned around and Garious come out of nowhere
running full speed and hit Michael Foradori in the back
of the neck . . . that was a hard punch. I’m talking about
a punch like I never seen before.

Assuming that the jury found this testimony to be credible, it could
very reasonably have disbelieved King’s self-serving testimony that
she merely felt that innocent “horseplay” was taking place between
Cannon and Foradori. Indeed, given that Shells, who was working
in the food preparation area behind King, apparently managed to
correctly perceive that a fight was brewing in the dining area a
considerable distance away, King’s self-serving testimony that she
was unable to do so even though she was closer to the altercation
can reasonably be viewed with skepticism.
Assuming that the jury made this very reasonable inference
from the evidence, Captain D’s arguments that Harris’ intentional
assault was a superseding cause as a matter of law likewise lacks
merit. In the court’s view, it is clearly foreseeable that a customer
might receive injuries from engaging in a fight with an employee,
and Shells’ testimony could have led a reasonable juror to conclude

18
 No. 06-60030

that King knew or should have known that her actions in ordering
her employees outside (as well as her actions in not stopping the
confrontation from brewing in the first place) would have resulted
in a fight and possible injuries to Foradori. The mere fact that
plaintiff’s injuries were more serious than would generally be
expected, and the fact that it was another employee who actually
inflicted those injuries, make no difference as to the issue of
foreseeability. Captain D’s argued at trial that Shells’ testimony was
unreliable, but this was clearly an issue for the jury. This court
considered Shells’ testimony as to his reasons for going outside to be
credible, in large part because young men typically do not rush
outside to watch “horseplay” take place. Shells clearly left the
restaurant for a reason, and his testimony that he did so to watch
a fight seemed credible to this court. Shells’ testimony was clearly
damaging to Captain D’s case, inasmuch as it cast doubt upon
Captain D’s argument that King had no reason to anticipate that a
fight would occur.
The credibility of Shells’ version of events was also enhanced
by Peggy King’s own testimony regarding her actions after the
tragic incident in this case. The court found it extraordinary that
King admitted that she made no inquiries whatsoever of her
employees even after Foradori was left paralyzed by Harris’ attack.
King testified that she felt that it was the job of the police to
investigate the incident, and this admission arguably speaks
volumes regarding the level of discipline, and the degree of
supervision, which existed between King and her employees. In the
court’s view, the jury could have reasonably concluded that a
manager who admittedly failed to make basic inquiries after a fight
involving grievous injuries to a customer would have been
indifferent to whether that fight occurred in the first place. An
inference of negligence on the part of King was also supported by
the fact that three separate Captain D’s employees under her
supervision (i.e. Cannon, Harris and Shells) behaved in such a
grossly inappropriate manner on the night in question. It is one
thing for Captain D’s to argue that the inappropriate actions of one
employee were somehow an aberration, but the fact that three
employees under King’s supervision behaved in such an
inappropriate manner reasonably supports a finding that a general

19
 No. 06-60030

lack of supervision and discipline prevailed at this particular
restaurant.
In light of the foregoing, the court concludes that the evidence
in this case not only supported the jury’s finding that Captain D’s
was negligent, but that it did so strongly. Captain D’s motion for
JML and/or new trial based upon the sufficiency of the evidence will
therefore be denied.

Considering the record in this case, we agree with the district court and
conclude that the jury’s verdict in respect to Captain D’s liability for the
negligent failure of its manager, Ms. King, to control its off-duty employees and
take other precautions to prevent the foreseeable risk of harm to its customer,
Foradori, is supported by legally sufficient evidence, which included the
undisputed facts that Cannon loudly and angrily challenged Foradori to a fight
in full view and hearing of Ms. King inside the restaurant for 15 to 20 minutes;
that Ms. King heard and saw the angry confrontation, which she misinterpreted
as horse-play, and ordered Cannon and Foradori to go outside without
investigating, intervening or taking any precaution to protect Foradori; that Ms.
King allowed a crowd including both employees and customers to follow the
protagonists into the parking lot without taking any precautions, such as calling
the police; and that as soon as Foradori reached the edge of the restaurant
parking lot Garious Harris, a restaurant employee, assaulted him without
warning from behind, knocking him unconscious and breaking his neck. In
addition, the jury reasonably could have found that Ms. King, as Captain D’s
manager in charge of its employees and its premises, knew or should have
known that Cannon, an off-duty employee, was creating an unreasonable risk
of a fight and harm to Foradori; that she as the manager on duty had the ability
to control the employee Cannon while he was on the premises, even though he

20
 No. 06-60030

was off-duty; that she had the ability to control the other employees and to some
extent the customers on the restaurant premises; that she aggravated the risk
of bodily harm to Foradori, and created similar risks to other customers and
employees, by causing the occupants to exit into the parking lot to witness or
participate in the fight; that she knew or should have known of the necessity and
the opportunity to exercise her ability to control everyone on the premises for the
protection of Foradori as well as other customers and employees; and that had
Ms. King exercised reasonable care and her ability to control Cannon and the
other employees and occupants present, the assault that resulted in Foradori’s
injury and disability would not have occurred.
Captain D’s argues that, as a matter of Mississippi law, it did not have a
duty to supervise or control Cannon and Harris at the time of Foradori’s injury
simply because they were then off-duty and not acting in the scope of their
employment, citing Williams, 854 F.2d 106, as its authority. This argument
misreads Williams and the underlying Restatement (Second) of Torts § 317
principles upon which it is based. Under those principles, Captain D’s had a duty
to control its off-duty employees, such as Cannon, Harris, Shells and perhaps
others, so as to protect patrons like Foradori from any foreseeable unreasonable
risk of harm created by those employees, because those employees’ conduct
occurred on Captain D’s premises, and the jury reasonably could have found that
Captain D’s manager knew or had reason to know that she had the ability to
control them, and knew or should have known of the necessity and opportunity
for exercising such control. On distinguishable facts, Williams held only that the
employer in that case had no duty under the § 317 principles to control the

21
 No. 06-60030

conduct of an employee off its premises who was not acting in the course of his
employment when he injured the plaintiff. See Williams, 854 F.2d at 109.
Captain D’s also argues that it owed no duty to protect Foradori from
Harris’s assault because it had no reason to know that Harris had any
propensity for that type of conduct. The argument is not relevant to this case.
Foradori’s action is based on Captain D’s negligent failure to regulate and train
as well as control and supervise its employees whom it knew or should have
known were creating an unreasonable risk of harm to its patron on its
premises.11 Foradori did not pursue an action against Captain D’s for negligently
hiring or retaining Harris. Under a negligent hiring action Foradori would have
had to show that Captain D’s had reason to believe that an undue risk of harm
would exist because of its employment of Harris due to his dangerous propensity.
But the showing of a dangerous propensity of an employee is not an essential
element of the action based on the employer’s negligent failure to control or
supervise its employee whom it knows or should know to be engaging in conduct
creating an unreasonable risk of harm to customers or others on its premises.12
Captain D’s other arguments on this issue are equally without merit. They
are simply attempts to shoehorn this case into the inapposite mold of a negligent

11
See Restatement (Second) of Agency § 213 (1958); Restatement (Second) of Torts §
317 (1965); see also Restatement (Second) of Agency § 213 cmt. i (1958) (“A master is subject
to liability as the possessor of premises for conduct of a servant thereon, or in fact the conduct
of anyone, to the continuance of which he consents after he knows or should know that such
conduct contains an unreasonable risk of harm to licensees or those upon adjacent roads or
premises.”).
12
See Restatement (Second) of Agency § 213 (1958); Restatement (Second) of Torts §
317 (1965); see also Tillman, 865 So. 2d at 353.

22
 No. 06-60030

hiring case or other cases distinguishable on their facts, along with reprises of
its unsuccessful closing argument to the jury on the facts of this case.

2.
We also conclude that the district court properly denied Captain D’s
motion for judgment as a matter of law in respect to its negligent failure to train
its managers and employees and inculcate in them the discipline of compliance
with work rules. The district court stated:

[T]he evidence in this case appears to establish a widespread
failure among multiple Captain D’s employees to behave in an
appropriate manner in this case. Obviously, it is not proper behavior
for a Captain D’s employee such as Cannon, off-duty or not, to
approach a customer on restaurant premises in a hostile manner
and to encourage him to fight. The fact that Cannon apparently felt
comfortable in behaving in such an improper manner on restaurant
premises raises troubling questions regarding the level of training,
supervision and discipline which existed at the Captain D’s
franchise in question. The fact that yet another employee - Harris-
apparently felt comfortable in violently assaulting a customer on or
near restaurant premises strengthens the court’s conclusions in this
regard. Finally, the fact that a restaurant chef’s instinctive reaction
upon learning of the fight was to go witness the altercation rather
than break it up or notify management strongly supports a
conclusion that there was a general failure on the part of Captain
D’s to properly supervise and train their employees at this
particular franchise.
It seems very likely that Captain D’s management would have
eventually learned of Harris’ violent assault on Foradori, which
occurred during business hours just outside the restaurant. The fact
that Harris nevertheless elected to commit this assault raises
questions in this court’s mind as to whether Captain D’s
management had adequately informed Harris of the adverse
consequences which would result if he behaved in a violent manner

23
 No. 06-60030
towards a customer. The court’s skepticism in this regard is
strengthened by the fact that King testified that, even after
Foradori was injured, she never directly asked Harris whether he
had assaulted Foradori. Indeed, King testified that she never
interviewed any of her employees about the accident.
Considered as a whole, King’s testimony at trial appeared to
reflect a rather passive managerial approach which, in the court’s
view, may well have contributed to the tragic injuries suffered by
Foradori. The court therefore declines to dismiss plaintiff’s negligent
training and supervision claims against Captain D’s, although it
will, as stated previously, grant defendant’s motion to dismiss
plaintiff’s vicarious liability claims based upon Harris’ intentional
assault.

After reviewing the record, we conclude that the district court correctly
analyzed the evidence and applied Rule 50, not simply for the district court’s
stated reasons,13 but also because of additional legally sufficient evidence in the
record from which the jury reasonably could have found that Captain D’s failed
to take reasonable steps to train and discipline its employees to take reasonable
precautions to control and defuse customer-related altercations on its premises.
The evidence was undisputed that, although Captain D’s had work rules and
manuals addressing this subject, it failed to adequately train the managers and
employees to comply with them in this case. Ms. King, the manager on duty in
the restaurant dining room at the time of the incident, testified that although
she “was given some oral things on disruption” she did not know what to do
when an altercation occurred but would have to go ask her supervisor. As a
consequence, she negligently failed to recognize or address the need to take
reasonable precautions to protect Foradori from the unreasonable risk of bodily

13
See Ellis v. Weasler Eng’g Inc., 258 F.3d 326, 338 (5th Cir. 2001).

24
 No. 06-60030
harm created by employees on the premises. Ms. King’s supervisor, Mr.
Ferguson, who was on-duty but absent from the dining room at the time, stated
he believed there were rules regarding the misconduct of employees and
customers but that he did “not specifically” know what they were. Mr. Shells,
the cook on duty, testified that he was never “[provided] a manual of rules and
regulations that [he] should follow,” “[instructions on] any rules or regulations
on how [he] should treat customers,” or “about how to handle a dispute between
an employee and a customer.” Mr. Rhodes, Captain D’s general manager, who
also was not present when Fordori was injured, admitted he was not aware
whether Captain D’s had guidelines for handling arguments or disturbances in
the restaurant: “I don’t think we have anything in writing for handling a
disturbance. It could be. We’ve got books and books and books of policy and they
change all the time.” Rhodes testified that he “never walked . . . Peggy King
through how to handle an incident involving an employee who was threatening
or intimidating a customer” and did not prepare the other store managers for
such a situation. Nonetheless, Rhodes stated that “if management didn’t teach
the rules and regulations [to employees]” that would constitute a “violation of
Captain D’s policy.”
Under the Restatement (Second) of Agency § 213 negligence principles
that we have concluded the Mississippi Supreme Court would apply, an
employer who engages in an enterprise is under a duty to anticipate and to
guard against the reasonably expected human traits and episodes of its
employees within its industry to prevent undue risk of harm to third persons or
to other employees; and is likewise required to make such reasonable
regulations as the size or complexity of its business may require. See Tillman,
865 So. 2d at 353 (quoting with approval and applying § 213). Further, in

25
 No. 06-60030
Gamble, the Mississippi Supreme Court affirmed a jury verdict for a plaintiff
customer of a department store based on evidence that a store employee followed
her into the parking area, accused her of shoplifting, and grabbed her
underwear. See Gamble, 852 So. 2d at 14. The court held that it was proper to
allow the jury to consider the issue of the employer’s negligent failure to train
without the need of expert testimony based on evidence that the store failed to
provide any training other than handing the employee a manual. Id.
In light of the foregoing legal principles and evidence, there was a legally
sufficient evidentiary basis for the jury to find that Captain D’s actually
anticipated or should have expected that angry confrontations would arise
occasionally between a customer and employees or other customers on its
premises; that Captain D’s therefore had a duty to take reasonable precautions
to train its managers and employees to deal with such situations and attempt
to prevent them from escalating into unreasonable risks of bodily harm to
customers or employees; that Captain D’s negligently failed to provide
reasonable training and regulation; and that if Captain D’s had taken reasonable
precautions the injury to its customer, Foradori, in this case would not have
occurred.
Captain D’s simply ignores the testimony of its managers and employees
and argues that the only evidence presented in support of plaintiff’s claim that
it negligently failed to train its managers and employees was the expert
testimony of Stuart Feigenbaum, who defendant contends was not qualified to
testify to industry training practices. We disagree. As the preceding discussion
of the evidence demonstrates, even without the expert’s testimony, the combined
testimony of Captain D’s managers and employees provided a more than

26
 No. 06-60030
sufficient basis for the jury’s finding that the defendant failed to satisfy its duty
to train and regulate its employees.

3.
Finally, the district court, in rejecting Captain D’s argument that Harris’
intentional assault was the superseding and sole proximate cause of Foradori’s
injury, reasoned:
Captain D’s arguments that Harris’ intentional assault was
a superseding cause as a matter of law likewise lacks merit. In the
court’s view, it is clearly foreseeable that a customer might receive
injuries from engaging in a fight with an employee, and Shells’
testimony could have led a reasonable juror to conclude that King
knew or should have known that her actions in ordering her
employees outside (as well as her actions in not stopping the
confrontation from brewing in the first place) would have resulted
in a fight and possible injuries to Foradori. The mere fact that
plaintiff’s injuries were more serious than would generally be
expected, and the fact that it was another employee who actually
inflicted those injuries, make no difference as to the issue of
foreseeability. Captain D’s argued at trial that Shells’ testimony was
unreliable, but this was clearly an issue for the jury. This court
considered Shells’ testimony as to his reasons for going outside to be
credible, in large part because young men typically do not rush
outside to watch “horseplay” take place. Shells clearly left the
restaurant for a reason, and his testimony that he did so to watch
a fight seemed credible to this court. Shells’ testimony was clearly
damaging to Captain D’s case, inasmuch as it cast doubt upon
Captain D’s argument that King had no reason to anticipate that a
fight would occur.

27
 No. 06-60030
Mississippi law has long held that a cause of injury is not superseding if
it is foreseeable.14 See, e.g., Glover, 968 So. 2d at 1279-80 (“where the
intervening cause of injury was foreseeable, it cannot supercede the liability of
the defendant”); O’Cain v. Harvey Freeman & Sons, Inc. of Miss., 603 So. 2d 824,
830 (Miss. 1991) (“[A]n independent intervening cause is one that could not have
been reasonably foreseen by the defendant while exercising due care”); Canton
Broiler Farms, Inc. v. Warren, 214 So. 2d 671, 676-77 (Miss. 1968) (“[I]f
foreseeable, the subsequent negligence is not independent and intervening, but
is concurrent with the prior negligence.”); Meridian Hatcheries Inc. v. Troutman,
93 So. 2d 472, 476 (Miss. 1957) (“where the act of a third party, even if it is
negligent, intervenes between the original negligence of defendant and the
injury, there is proximate cause if, under the circumstances, an ordinarily
prudent man could or should have anticipated that such intervening act, or a

14
This principle of Mississippi law conforms with the Restatement (Second) of Torts §
448 (1965), which states:

The act of a third person in committing an intentional tort or crime is a
superseding cause of harm to another resulting therefrom, although the actor’s
negligent conduct created a situation which afforded an opportunity to the third
person to commit such a tort or crime, unless the actor at the time of his
negligent conduct realized or should have realized the likelihood that such a
situation might be created, and that a third person might avail himself of the
opportunity to commit such a tort or crime.

Restatement (Second) of Torts § 448 (1965).
In fact, the Mississippi Supreme Court has endorsed Restatement § 448. See Wal-Mart
Stores, Inc. v. Johnson, 807 So. 2d 382, 388 (Miss. 2001) (relying on Restatement (Second) of
Torts § 448 for the principle that “intervening cause” typically refers to unforeseeable acts of
third parties); Touche Ross & Co. v. Commercial Union Ins. Co., 514 So. 2d 315, 324 (Miss.
1987) (quoting Restatement (Second) of Torts § 448 in full).

28
 No. 06-60030
similar intervening act, would occur.”); Oliver Bus Lines v. Skaggs, 164 So. 9, 12
(1935) (“an independent intervening cause is one that could not have been
reasonably foreseen by the defendant while exercising due care”). As the
Mississippi Supreme Court has recently confirmed, even a criminal act by a
third party is not a superseding cause if it was foreseeable. See Glover, 968 So.
2d at 1279-80 (finding that a rape was not a superseding cause of injury when
it was a reasonably foreseeable consequence of defendant’s negligence).
“[I]n satisfying the requirement of foreseeability, a plaintiff is not required
to prove that the exact injury sustained by the plaintiff was foreseeable; rather,
it is enough to show that the plaintiff’s injuries and damages fall within a
particular kind or class of injury or harm which reasonably could be expected to
flow from the defendant’s negligence.” See Glover, 968 So. 2d at 1278-79
(concluding that “although the specific harm of forcible rape may not have been
contemplated by [defendant]” it was foreseeable because it fell within the class
of acts that might occur as a result of defendant’s negligence); Canton Broiler
Farms, 214 So. 2d at 677 (holding that a car accident arising out of unique and
improbable facts was foreseeable because: “[i]t seems clear, of course, that no
mortal could foresee that which happened. The real question is, could the
defendant reasonably foresee that some accident and injury would probably
result from his [negligence]”); id. (“There are other intervening causes which
could scarcely have been contemplated by any reasonable man in the place of the
defendant at the time of his conduct, but which are nevertheless to be regarded
as normal incidents of the risks he has created.”) (quoting Prosser, Torts § 51 at
314 (3d ed. 1964));

29
 No. 06-60030
Whether a cause of injury is foreseeable is a question for the jury. See
O’Cain, 603 So. 2d at 830 (“the question of superseding intervening cause is so
inextricably tied to causation, it is difficult to imagine a circumstance where
such issue would not be one for the trier of fact.”).
Applying these principles, we conclude that the district court correctly
denied Captain D’s motion for judgment as a matter of law on the superseding
cause issue. In light of the evidence, the jury reasonably could have found that
an assault and battery upon Foradori by one or more of a numerous class of third
persons became foreseeable when, after the lengthy dining-area altercation
between Cannon and Foradori, the manager in charge, King, relinquished her
ability and duty to control the agitated employees and customers by ordering
them to go outside.15 Thus, the jury similarly could have found that it was not
unforeseeable that Foradori would be harmed by any number of hazards posed
that night by the turbulent crowd of teenagers in the Captain D’s parking lot;
and that the assault on Foradori by Harris fell within the particular kind or
class of injury or harm which reasonably could be expected to flow from the

15
Applying the Restatement (Second) of Torts § 448, as endorsed by the Mississippi
Supreme Court, other jurisdictions have found third party assaults foreseeable in factually
similar situations. For example, in City of Birmingham v. Benson, 631 So. 2d 902, 906 (Ala.
1993), the Alabama Supreme Court found that when a city police officer, on security guard
detail at a bar, was aware of the likelihood of a fight between two groups of teenagers and
escorted the teens outside but returned inside stating “I don’t care what you do,” a criminal
assault by one group on another resulting in a teenager’s death was not a superseding cause
sufficient to relieve the city from liability. Id. at 906. In Benson, the police officer, similar to
Ms. King, had a duty to protect patrons but abdicated that duty by escorting belligerent parties
outside and abandoning them there. Id. Just as the causes of the resulting injuries in Benson,
viz., a teen being dragged from his car, viciously beaten by a group of 15 youths, and then
inadvertently runover, were of the kind that reasonably could be expected to flow from the
officer’s negligence, id., Harris’s assault on Foradori was within the particular class of injury
or harm which was a reasonably foreseeable consequence of Ms. King’s failures to quell the
impending fight and control the restaurant’s employees and business invitees.

30
 No. 06-60030
restaurant manager’s negligent failure to control and supervise its employees
and customers on its premises as well as from Captain D’s negligent failure to
train and regulate its managers and employees in respect to altercations on its
property.

B. Captain D’s Motion for a New Trial
1. Verdict of liability against the weight of the evidence
Defendant protests that the jury’s verdict on liability was contrary to the
great weight of the evidence and thus a new trial is warranted. Our review of the
district court’s denial of a motion for a new trial is more deferential than our
review of a motion for judgment as a matter of law. We will reverse the trial
court’s denial of a motion for a new trial only when there is a clear showing of
an abuse of discretion. See Hiltgen, 47 F.3d at 703; Dawsey v. Olin Corp., 782
F.2d 1254, 1261 (5th Cir. 1986). To show an abuse of discretion in this respect,
the defendant must show an absolute absence of evidence to support the jury’s
verdict. Whitehead, 163 F.3d at 269; Hiltgen, 47 F.3d at 703; Dawsey, 782 F.2d
at 1262. Because we have already concluded that the jury’s verdict was
supported by the evidence in reviewing the district court’s denial of judgment as
a matter of law, we necessarily find that there was no abuse of discretion in its
denying the motion for a new trial on liability.

2. New trial or remittitur of excessive damages
After a full trial on liability and damages, the jury returned a verdict for
Foradori and awarded him $10 million for past, present, and future physical
pain and suffering, mental anguish, and the loss of enjoyment in life;
$1,581,884.41 for reasonable and necessary medical expenses already incurred;

31
 No. 06-60030

$8 million for the present value of the reasonable and necessary medical
expenses likely to be incurred in the future; and $1,300,000 for the present value
of loss of future earnings or earning capacity resulting from his disability.
Alternatively to its motion for a judgment as a matter of law, Defendant
moved for a new trial or remittitur. The district court denied the motion as to
all awards. Defendant attacks as excessive the $10 million award for pain,
suffering and loss of quality of life.16
a.
The Supreme Court in Gasperini, 518 U.S. at 419, 434, held that, in an
action based on state law but tried in federal court by reason of diversity of
citizenship, a district court must apply a new trial or remittitur standard
according to the state’s law controlling jury awards for excessiveness or
inadequacy,17 and appellate control of the district court’s ruling is limited to
review for “abuse of discretion.” “Within the federal system, practical reasons
combine with Seventh Amendment constraints to lodge in the district court, not
the court of appeals, primary responsibility for application of [the state’s new
trial or remittutur standard]. Trial judges have the ‘unique opportunity to
consider the evidence in the living courtroom context,’ while appellate judges
see only the ‘cold paper record.’” Id. at 438 (internal citation omitted). “In light
of Erie’s doctrine, the federal appeals court must be guided by the damage-
control standard state law supplies, but as the Second Circuit itself has said: ‘If
we reverse, it must be because of an abuse of discretion...The very nature of the

16
Defendant challenges the other awards on the basis of alleged prejudicial trial errors.
17
“Federal diversity jurisdiction provides an alternative forum for the adjudication of
state-created rights, but it does not carry with it generation of rules of substantive law.”
Gasperini, 518 U.S. at 426.

32
 No. 06-60030

problem counsels restraint...We must give the benefit of every doubt to the
judgment of the trial judge.’” Id. at 438-439 (citing Dagnello v. Long Island R.
Co., 289 F.2d 797, 806 (2d Cir. 1961)) (footnote omitted).
The Mississippi statutory standard for granting a new trial or remittitur
provides:

The supreme court or any other court of record in a case in which
money damages were awarded may overrule a motion for new trial
or affirm on direct or cross appeal, upon condition of an additur or
remittitur, if the court finds that the damages are excessive or
inadequate for the reason that the jury or trier of the facts was
influenced by bias, prejudice, or passion, or that the damages
awarded were contrary to the overwhelming weight of credible
evidence. If such additur or remittitur be not accepted then the court
may direct a new trial on damages only. If the additur or remittitur
is accepted and the other party perfects a direct appeal, then the
party accepting the additur or remittitur shall have the right to
cross appeal for the purpose of reversing the action of the court in
regard to the additur or remittitur.

Miss. Code Ann. § 11-1-55 (emphasis added)
Therefore, in accordance with Gasperini, we must review the district
court’s decision in applying the foregoing Mississippi new trial/remittitur
standard to the evidence in this case to determine whether the district court
abused its discretion. In doing so, we may not substitute our own application of
Mississippi’s new trial/remittitur rule for the district court’s, and we may not
generate or apply our own appellate review rules in lieu of simply performing a
review for abuse of discretion.18

18
See Consorti v. Armstrong World Indus., Inc., 103 F.3d 2, 4 (2nd Cir. 1996):

33
 No. 06-60030

b.
At trial Foradori and his examining physician, Dr. Howard Katz, an expert
in physical medicine and spinal cord injuries, testified describing the effects of
Foradori’s injury in respect to his pain, suffering, mental anguish, and loss of
quality and enjoyment of life. According to their undisputed testimony, Foradori
is essentially paralyzed from the neck down. He can feel his neck and the top of
his shoulders, and he has some sensation “coming down his lateral upper arms
about halfway down.” Below that, Foradori has no sensation whatsoever. Using
his upper arm, he can bend his elbow but cannot straighten it; he must rely on
gravity to do so. His shoulder is similar; he is able to generate slight movements
up, forward, or backward and must rely on gravity for the rest. Foradori can use
these shoulder movements to operate his electric wheelchair, but he has no
control over his hands or wrists. He is unable to sit up on his own and cannot

Review of Gasperini in the Supreme Court focused primarily on two
questions: First, whether state or federal law governs the issue of the
excessiveness of a jury award in a diversity case; and second, whether remittitur
is beyond the power of a federal appellate court sitting in diversity because the
Seventh Amendment commands that “no fact tried by a jury, shall be otherwise
reexamined in any Court of the United States, than according to the rules of the
common law” (a question which had not been raised below).
As to the first question, the Supreme Court affirmed our ruling that state
law governs. On the second question, the Court ruled that “[N]othing in the
Seventh Amendment ... precludes appellate review of the trial judge’s denial of
a motion to set aside [a jury verdict] as excessive.” 518 U.S. at 436, (quoting
Grunenthal v. Long Island R. Co., 393 U.S. 156, 164 (1968) (Stewart, J.,
dissenting) (alterations in original)). The Court emphasized, however, that even
in a diversity case the proper distribution of functions between the trial court
and the court of appeals is a matter of federal law. In the federal system, “the
district court is to determine whether the jury’s verdict is within the confines set
by state law” and the “court of appeals should then review the district court’s
determination under an abuse-of-discretion standard.” 518 U.S. at 436 (quoting
Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257, 279 (1989)).

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remain upright unless strapped in a chair. Foradori is unable to feed himself,
despite his attempts to use specially designed devices; to eat he relies on others
to “take a fork or a spoon and dip it in food and put it in [his] mouth.” Similarly,
he is unable to wash or dress himself.
Despite the paralysis of Foradori’s arms and legs, he suffers from spasms,
commonly associated with spinal cord injury, in those extremities. To control
these spasms, he required the surgical insertion of a Baclofen pump. This
procedure involved inserting a “tube into a catheter into the spinal column into
the epidural space” as well as placing a pump under the skin. The pump must
be refilled every three months and replaced every five years.
Foradori’s bodily functions are deeply compromised and require extensive
external manipulation. He suffers from a “neurogenic bladder,” meaning he has
no bladder control. This condition leads to bladder spasms which can combine
to create either uncontrolled urination or improper and unhealthy increases in
bladder pressure. To manage this condition, Foradori requires a catheter, but
because Foradori, like most spinal cord injury sufferers, cannot rely on a condom
catheter to stay on his penis, he must use an indwelling catheter. Foradori
describes the device as something “inserted into my private, going all the way
to my bladder, then they have to blow up a balloon to keep it in and urine passes
through the catheter to a bag.” To function, this must remain attached to
Foradori at all times, channeling the urine out of view to a black bag behind the
leg rest of Foradori’s wheelchair.
Dr. Katz describes Foradori’s indwelling catheter, as “the worst possible
choice for management of a spinal cord injury bladder” because “100 percent of
the people who have an indwelling catheter develop bacteria, chronic bacteria
and infection in their bladder.” As a result, Foradori can expect to “have

35
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problems with recurrent urinary tract infections.” Indwelling catheters also
cause “increased risk of bladder stones, kidney stones, . . . vesico-ureal reflux
where [urine] goes back toward the kidney, hydronephritis or water on the
kidney, bladder cancer, kidney cancer, renal [failure] and death.”
Defecation for Foradori is even more uncomfortable. Foradori suffers from
“neurogenic bowel,” which means he has no control over his bowel and must
endure partial bowel obstruction. Before Foradori moved to a nursing home, his
father had to “perform digital stimulation [of the bowels] two times a week.”
This consisted of his father “perform[ing] digital stimulation, leav[ing] him in
bed, wait[ing] until he’s through being incontinent, and then clean[ing] him up,
just chang[ing] the sheets and everything.” Foradori’s experience at the nursing
home shows little improvement; “three nights a week I have to have something
inserted into my bottom in order to make me go to the bathroom . . . I have to
wait three or four hours in order to go to the bathroom and wait for somebody to
come clean me up and turn me over.” From this bowel stimulation, Foradori
runs a high risk of developing both internal and external hemorrhoids and
fissures in his rectum, and he runs increased risk of colon polyps and gall
bladder disease. At the time of trial, Foradori experienced “a lot of incontinence
of stool at school.” Understandably, this sensitive area is of particular concern
to Foradori, who, when first presented to Dr. Katz, “was very unhappy with the
fact that he couldn’t control his bowel or bladder.”
Foradori also suffers from “neurogenic sexual dysfunction,” so he has no
function in his sexual organs. In his own words: “I can’t feel. I can’t control
anything. I can’t get an erection on my own.” Foradori has been unable to
achieve or maintain an erection even with the use of Viagra.

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Before moving into a nursing home, Foradori depended on his family for
his care routine. This required Foradori’s father, who worked two jobs, to
administer Foradori’s bowel routine, shower him, dress him, and feed him daily.
The wear of this responsibility on Foradori’s father led Foradori to move to a
nursing home, where he follows a limited routine every day:

I get a bath on Tuesday and Thursdays; otherwise I wake up in the
morning, take my medicine, they come in there around nine, 9:30,
wash me up, put my clothes on for me. They have a lift, they use a
pad that goes under my shoulders and under my legs to get me to a
lift and they have to crank the lift up until it gets me up high
enough to get me over my chair. And then they have to carry me
over to my chair, put the lift around my tires, and push me back in
my chair to let me down to make sure I’m all the way in, and strap
me in. After I’m in the chair I basically just ride around all day,
come back to my room, eat lunch, watch TV, ride around some more
until it’s suppertime; eat supper.

Since his injury, Foradori has suffered from “continuing pain most of the
time,” and much of this, such as pain in his head and shoulders as well as
perceived pain in his feet, is “lifetime pain.” For the six months following his
injury, Foradori’s neck hurt constantly and severely enough to remain “very bad”
despite steady morphine doses. To date this neck pain continues periodically
and Foradori suffers from muscle spasms that are sometimes “so bad it hurts my
back, my shoulders, [and] my neck.” Further, Foradori continues to have
persistent pain in his shoulders caused by “bilateral subluxation of shoulders
with early arthritis of both shoulders.” This apparently arose because his
accident created a one-inch gap between Foradori’s shoulder bones and
shoulders. Foradori also suffers from “disreflective headaches,” triggered by

37
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medical conditions in parts of his body where he lacks sensation. He describes
these headaches as “like somebody’s driving spikes into my skull to let me know
something’s wrong.” Dr. Katz’s observation of these headaches reflect that they
occur “three to five times per week [and] last about an hour each . . . .” During
these headaches, Foradori feels nausea, light-headedness, and light sensitivity
in his eyes. Additionally, Foradori’s present condition places him at such an
extremely high risk for osteoperosis that “if he lives, he is going to have
osteoperosis.” In many patients, this condition has caused long bone fractures
that could lead Foradori to accidently break his thigh during something as
simple as being transferred from his bed to his chair. Most cruelly, Foradori,
despite not having actual feeling in his feet, senses a burning pain in his feet as
a result of brain activity termed “God’s little joke” by Dr. Katz. Despite
medication, this pain is and will be constant. Finally, Foradori’s fall caused him
to break a tooth, which causes him mouth and jaw pain.
Foradori’s quadriplegia has also led to other medical conditions. For
example he suffers from pressure sores, also known as bed sores, so severe that
he has required numerous surgeries to repair the skin above his tail bone, on his
hip, and on his left leg.
Foradori’s emotional reaction to the accident has been as severe and
lasting as his physical pain. Immediately after the accident, Foradori:

felt like somebody had just flushed my life down the drain. I
didn’t – I didn’t know what was going to happen. I didn’t know
what to expect. I wanted to die, because I didn’t know how I was
going to deal with it . . . . It hurt because . . . I knew that I wasn’t
going to walk again. I knew that I wasn’t ever going to be able to do
the things that I did, and it hurt. I couldn’t deal with it.

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This emotional pain persists:

I try not to think about it, but there’s a lot of things I can’t do
that bothers me. I can’t ride four wheelers, I’ll never play football
or play basketball again. I’ll never have sex again. Just never be
able to go hunting, never be able to go fishing. And, you know, I see
other people walking around . . . watch people do the stuff that I
know I’ll never be able to do, and it bothers me because I’ll never be
able to do it again.

Of course, Foradori’s condition continues to impact his everyday life and affects
his enjoyment of company:

I can’t stand to eat in front of people because it bothers me.
I feel like people are watching me. I feel like people are, you know
– I get the feeling that people are not laughing at me, but people –
I feel like people automatically think I’m handicapped or I’m slow
or I’m different than anybody else just because I can’t walk, because
I can’t do the same thing that they do, and it hurts. . . .
I deal with it, but I can’t adjust myself to it. I always feel like
somebody’s looking at me; somebody’s staring at me; somebody’s
judging me just because I’m like this, and not the same way they
are.

Finally, Dr. Katz’s testimony established that since Foradori’s accident
likely shortened his life span by a decade, Foradori could expect to live to the age
of 68, and this estimate of the likely duration of his pain, suffering, mental and
emotional anguish, and loss of quality and enjoyment of life was undisputed. Dr.
Katz testified that, in light of his injury and if provided proper care, Foradori is
projected to live until 2053. So, since Foradori suffered his accident in 2000, he

39
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will be subject to the conditions discussed above for 53 years out of his 68-year
total life expectancy.
c.
The district court’s order giving its reasons for denying Captain D’s motion
for new trial or remittitur begins by correctly stating the issue under the
Mississippi new trial/remittitur standard: “Was the jury’s verdict against the
overwhelming weight of the evidence?” In connection with its excessiveness
challenge, Captain D’s did not argue that the jury had been influenced by bias,
prejudice or passion; thus, the only question was whether the awards were
excessive because they “were contrary to the overwhelming weight of credible
evidence.” See Miss. Code Ann. § 11-1-55.
The district court explained that it had required the jury to specify the
exact amount awarded for each major element of damages to enable it to closely
scrutinize whether the awards corresponded to the evidence at trial. The court
concluded that the jury’s awards were, in fact, not contrary to but consistent
with the evidence supporting each item, including those challenged for
excessiveness.
The district court found that the jury award of $10 million for past,
present, and future pain, suffering, including loss of enjoyment of life, which was
a fraction of the $45 million requested by plaintiff’s counsel in his closing
argument, was not against the weight of the evidence. The court stated:

It seems clear that Foradori has had to endure an
extraordinary amount of suffering in his young life, even by the
standards of quadriplegics. Once an active and athletic individual,
Foradori now has only minimal and spastic use of his upper

40
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extremities. He is unable to perform basic tasks of self-care, and he
relies upon assistance to get out of bed, urinate, and defecate.
Cruelly, Foradori also suffers physical pain in addition to his
disability, for which he must take Neurontin, a powerful analgesic.
Foradori does not enjoy the level of family support enjoyed by many
quadriplegics. Foradori’s father works two jobs, and while he
initially made efforts to perform those jobs and still care for his son,
the physical and mental demands of such became too great. As a
result, Foradori was forced to move to a nursing home, which is
clearly a great emotional burden for a young man. While the jury’s
award in this case would eventually permit Foradori to buy a
handicapped-accessible home and obtain some measure of
independence and dignity, he does not presently enjoy such
comforts. In light of the foregoing, the court does not view the jury’s
award of $ 10 million for past, present and future pain and
suffering, including loss of enjoyment of life, to be excessive.

d.
With the foregoing legal principles in mind, we have carefully studied and
reviewed the record, the written and oral arguments of counsel, and the reasons
assigned by the district court. We are unable to say that the district court, who
saw and heard the witnesses and who also studied and ruled on numerous
motions and objections dealing with the evidence, abused its discretion in
deciding to deny Captain D’s new trial/remittitur motion because the jury’s
awards were not contrary to the overwhelming weight of credible evidence. In
performing the limited function of a federal appellate court, we perceive no
instance in which the district court failed to perform faithfully its role to
determine whether the jury’s verdict is within the confines set by state law. In
this case the district court properly instructed the jury on Mississippi law and
applied the proper state-law standard in considering whether the verdict
returned was excessive. Giving “the benefit of every doubt to the judgment of the

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trial judge” as we must, see Gasperini, 518 U.S. at 438-39 (quoting Dagnello, 289
F.2d at 806), we cannot find any abuse of discretion in the district court’s
reasoning or decision. For his past, present and future pain, suffering, mental
and emotional anguish, and loss of enjoyment and quality of life, the jury
awarded Foradori, who was 15 years old when he was injured and still has a
quadriplegia-reduced life expectancy of 68 years, $10 million. We cannot say
that the district court abused its discretion in deciding that this award was not
contrary to the overwhelming weight of credible evidence that was introduced.

e.
Captain D’s contends that the jury’s verdict of $10 million for Foradori’s
past, present, and future physical pain and suffering, mental anguish, and loss
of enjoyment of life was excessive and that a remittitur should be ordered. A
remittitur is “an order awarding a new trial, or a damages amount lower than
that awarded by the jury, and requiring the plaintiff to choose between those
alternatives.”19 Thus, before a court may order a remittitur, it must first
determine that a new trial is warranted. Except in those cases in which it is
apparent as a matter of law that certain identifiable sums included in the verdict
should not have been there, the court may not reduce the amount of damages
without giving the plaintiff the choice of a new trial, for to do so would deprive
the parties of their constitutional right to a jury.20 Our cases set forth several

19
Black’s Law Dictionary (8th ed. 2004); see also Hernandez v. M/V Rajaan, 841 F.2d
582, 587 (5th Cir. 1988) (“Having determined that an award is excessive, this court may either
order a new trial on damages or may give the plaintiff the option of avoiding a new trial by
agreeing to a remittitur of the excessive portion of the award”).
20
See 11 C. Wright & A. Miller, Federal Practice and Procedure § 2815 & nn. 2-3 (2008)
(citing Kennon v. Gilmer, 131 U.S. 22 (1889)); DeCenteno v. Gulf Fleet Crews, Inc., 798 F.2d

42
 No. 06-60030

articulations of the standard that must be met before we will grant a new trial
and consider coupling it with the alternative of a remittitur order, and Captain
D’s has failed to satisfy any of them.
Abuse of Discretion Standard. “The decision to grant or deny a motion for
a new trial is generally within the sound discretion of the trial court, and
reversible only for an abuse of that discretion.” Shows v. Jamison Bedding, Inc.,
671 F.2d 927, 930 (5th Cir. 1982). “When the trial judge has refused to disturb
a jury verdict, all the factors that govern our review of his decision favor
affirmance. Deference to the trial judge, who has had an opportunity to observe
the witnesses and to consider the evidence in the context of a living trial rather
than upon a cold record, operates in harmony with deference to the jury's
determination of the weight of the evidence and the constitutional allocation to
the jury of questions of fact.” Id. (citing Massey v. Gulf Oil Corp., 508 F.2d 92,

138, 142 (5th Cir. 1986); Matador Drilling Co. v. Post, 662 F.2d 1190, 1198 (5th Cir. 1981); see
also Hetzel v. Prince William County, 523 U.S. 208, 211 (1998) (finding that a “Court of
Appeals' writ of mandamus, requiring the District Court to enter judgment for a lesser amount
than that determined by the jury without allowing petitioner the option of a new trial, cannot
be squared with the Seventh Amendment.”) (citing Kennon, 131 U.S. at 29-30); Sloane v.
Equifax Info. Servs., 510 F.3d 495, 503 (4th Cir. 2007) (holding that the Seventh Amendment
"precludes an appellate court from replacing an award of compensatory damages with one of
the court's own choosing"); Bisbal-Ramos v. City of Mayaguez, 467 F.3d 16, 26 (1st Cir. 2006)
(reversing a district court’s reduction of compensatory damages without offering the plaintiff
a choice of a new trial as legal error); Sloan v. State Farm Mut. Auto. Ins. Co., 360 F.3d 1220,
1225 (10th Cir. 2004) (“The Seventh Amendment requires that a plaintiff be given the option
of a new trial in lieu of remitting a portion of the jury's award”); Johansen v. Combustion
Eng’g, Inc., 170 F.3d 1320, 1329 (11th Cir. 1999) (“The Seventh Amendment requires,
however, that the plaintiff be given the option of a new trial in lieu of remitting a portion of
the jury's award.”); Denesha v. Farmers Ins. Exchange, 161 F.3d 491, 504 (8th Cir. 1998) (“the
practice of granting remittitur without giving the plaintiff the option of a new trial ‘cannot be
squared with the Seventh Amendment.’”); Lightfoot v. Union Carbide Corp., 110 F.3d 898, 914-
15 (2d Cir. 1997) (“Where a jury has awarded damages in an amount considered excessive by
the trial court, ‘[i]t is not among the powers of the ... court ... simply to reduce the damages
without offering the prevailing party the option of a new trial.’ This rule derives from the
trial-by-jury protections of the Seventh Amendment.”)(internal citation omitted).

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94-95 (5th Cir. 1975)); see also Salinas v. O'Neill, 286 F.3d 827, 830 (5th Cir.
2002); Eiland v. Westinghouse Elec. Corp., 58 F.3d 176, 183 (5th Cir. 1995) (“The
decision to grant or deny a motion for new trial or remittitur rests in the sound
discretion of the trial judge; that exercise of discretion can be set aside only upon
a clear showing of abuse”); Brunnemann v. Terra Int’l, Inc., 975 F.2d 175, 178
(5th Cir. 1992) (concluding that the district court abused its discretion in
denying defendant’s motion for remittitur); Hernandez v. M/V Rajaan, 841 F.2d
582, 587 (5th Cir. 1988) (“This court will not overturn a damage award unless
the trier of fact abused its discretion”) .
Strongest of Showings Standard. This court has firmly established in
previous cases that it will not reverse a jury verdict for excessiveness except on
“the strongest of showings.” Lebron v. United States, 279 F.3d 321, 325 (5th Cir.
2002); Enter. Ref. Co. v. Sector Ref. Co., 781 F.2d 1116, 1118 (5th Cir. 1986);
Dixon v. Int'l Harvester Co., 754 F.2d 573, 590 (5th Cir.1985); Caldarera v.
Eastern Airlines, Inc., 705 F.2d 778, 784 (5th Cir. 1983); Shows, 671 F.2d at 934;
Bridges v. Groendyke Transp., Inc., 553 F.2d 877, 880 (5th Cir. 1977). The size
of the award a plaintiff is entitled to is generally a question of fact, and the
reviewing court should be “exceedingly hesitant” to overturn the decision of the
jury –the primary fact finder– and the trial judge who concurred with its verdict.
Shows, 671 F.2d at 934 (citing Bridges, 553 F.2d at 880). Thus, we have upheld
the denial of a new trial on the question of damages even when we have
disagreed with the award, see id. (citing Bridges, 553 F.2d at 881 & n.2), and we
will reverse an award as excessive only when it “clearly exceeds that amount
that any reasonable man could feel the claimant is entitled to.” Id. (citing
Bridges, 553 F.2d at 880; Bailey v. S. Pac. Transp. Co., 613 F.2d 1385, 1390 (5th

44
 No. 06-60030

Cir. 1980)) (emphasis original); see also Ramirez v. Allright Parking El Paso,
Inc., 970 F.2d 1372, 1378 (5th Cir. 1992); Enter. Ref. Co., 781 F.2d at 1118.
Shock the Judicial Conscience Standard, et al. The jury's award is not to
be disturbed unless it is entirely disproportionate to the injury sustained.
Caldarera, 705 F.2d at 784; see also Industrias Magromer Cueros y Pieles S.A.
v. La. Bayou Furs Inc., 293 F.3d 912, 924 (5th Cir. 2002) (citing Caldarera, 705
F.2d at 784). “We have expressed the extent of distortion that warrants
intervention by requiring such awards to be so large as to ‘shock the judicial
conscience,’ ‘so gross or inordinately large as to be contrary to right reason,’ so
exaggerated as to indicate ‘bias, passion, prejudice, corruption, or other improper
motive,’ or as ‘clearly exceed[ing] that amount that any reasonable man could
feel the claimant is entitled to.’” Caldarera, 705 F.2d at 784 (quoting Complete
Auto Transit, Inc. v. Floyd, 249 F.2d 396, 399 (5th Cir. 1958); Allen v. Seacoast
Prods., Inc., 623 F.2d 355, 364 (5th Cir. 1980); Bridges, 553 F.2d at 880); see also
Williams v. Chevron U.S.A., Inc., 875 F.2d 501, 506 (5th Cir. 1989) (quoting
Caldarera 705 F.2d at 784).
Captain D’s does not even attempt to satisfy any of the foregoing
standards for our ordering a new trial with a remittitur in the alternative.
Instead, Captain D’s argues that it is entitled to an appellate court reduction of
the jury’s verdict under our maximum recovery rule simply because the jury’s
verdict exceeds the recovery allowed in two allegedly similar cases from
jurisdictions other than Mississippi, viz., two decisions based respectively on
Louisiana law and American maritime law: Duncan v. Kansas City S. Ry. Co.,
773 So. 2d 670 (La. 2000) and Sosa v. M/V Lago Izabal, 736 F.2d 1028 (5th Cir.
1984). Captain D’s cannot invoke the maximum recovery rule in this case,

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however, because it concedes that “there are no reported cases from Mississippi
addressing the recovery for pain and suffering for injuries like those sustained
by Foradori[.]” As one of our panels observed in Vogler v. Blackmore, 352 F.3d
150, 158 (5th Cir. 2003), when “[o]ur review of the caselaw reveals that there is
no factually similar case in the relevant jurisdiction[,] the maximum recovery
rule is not implicated.”21 Thus, because Captain D’s has not satisfied any of the
standards for the granting of a new trial or shown that it is in position to invoke
the maximum recovery rule, it would be a gross aberration in law and justice to
set aside Foradori’s jury verdict based on a comparison with two reported
decisions of foreign jurisdictions.22

21
The author, writing for himself and not the other panel members, notes that the
maximum recovery rule applies when an appellate or trial court properly orders a new trial
with a remittitur. In such a case, the rule requires that the alternative reduced award be set
no lower than the maximum recovery possible on the evidence and controlling law of the case.
See, e.g., Hernandez v. M/V Rajaan, 841 F.2d 582, 587 (5th Cir. 1988); Zeno v. Great Atlantic
and Pacific Tea Co., 803 F.2d 178, 181 (5th Cir. 1986); Caldarera 705 F.2d at 784 & n.21. The
purpose of this rule is to maintain the constitutional allocation of fact-finding to the jury by
affording the plaintiff the choice of avoiding a new trial by accepting the lesser amount that
the court deems the maximum that the jury reasonably could have awarded on the evidence
and law applicable to the case. See, e.g., Gorsalitz v. Olin Mathieson Chemical Corp, 429 F.2d
1033, 1046-47 (5th Cir. 1970) (“This theory permits reduction only to the highest amount
which the jury could properly have awarded. It is the only theory which has any reasonable
claim of being consistent with the Seventh Amendment.”); see also Salinas, 286 F.3d at 830;
Caldarera 705 F.2d at 784; Shows, 671 F.2d at 930; 11 C. Wright & A. Miller, Federal Practice
and Procedure § 2815 (2008).
The case upon which Captain D’s principally relies, Lebron v. United States, 279 F.3d
at 321, clearly does not hold otherwise. In that case, though reviewing a bench trial rather
than a jury verdict, this court carefully recognized that the “strongest of showings” standard
had to be satisfied before a new trial or alternative remittitur could be ordered, see id. at 325,
and in arriving at the maximum alternative remittitur award under the maximum recovery
rule, this court stated that it was required to base its calculations on the jurisprudence and law
of the forum state, not upon that of a foreign jurisdiction. See id. at 326.
22
Aside from the legal flaws in Captain D’s argument, its sample of allegedly
comparable awards is too narrowly selective to serve any practical or objective purpose. After
stating that it was unable to find any comparable Mississippi case, Captain D's gives no reason

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For these reasons, we conclude that Captain D’s has not satisfied the strict
standards that must be met before we will reverse the jury verdict on the ground
that it was excessive.23

for failing to include in its sample many other cases of somewhat similar catastrophic injuries
outside that jurisdiction. See, e.g., Pouliot v. Paul Arpin Van Lines, Inc., 235 F.R.D. 537, 550-
51 (D. Conn. 2006) (applying Connecticut law in diversity and finding that a $20 million
verdict for non-economic damages was not excessive when a man was rendered paraplegic);
Hess v. Ford Motor Co., 41 P.3d 46, 51 (Cal. 2002) (noting without reviewing the underlying
$8.4 million award for non-economic damages when plaintiff was rendered paraplegic in a car
accident); Pelletier v. Sordoni/Skanska Constr. Co., 2006 WL 760140 at *1, *3 (Conn. Super.
Ct. 2006) (denying remittitur when jury awarded $22 million in non-economic damages to a
plaintiff rendered paraplegic); see also Velarde v. Illinois Cent. R.R. Co., 820 N.E.2d 37, 54, 61
(Ill. App. Ct. 2004) (affirming a $15.5 million non-economic damages award for a father and
a $28 million non-economic damages award for a daughter, both of whom were struck by a
train and suffered disabling head injuries); Epping v. Commonwealth Edison Co., 734 N.E.2d
916 (Ill. App. Ct. 2000) (finding an award of $9 million in non-economic damages was not
excessive for 49-year-old automobile accident victim who suffered severe, debilitating injuries
to her right leg and left hip, along with deformity of foot and other injuries); Schifelbine v.
Foster Wheeler Corp., 772 N.Y.S.2d 140 (N.Y. App. Div. 2004) (finding that $21 million award
to quadriplegic for total damages was not excessive).
23
The author, writing for himself and not the other members of this panel, notes that
Captain D’s argument here is also unacceptable in light of the Supreme Court’s decision in
Gasperini v. Center for Humanities, 518 U.S. 415, 432 (1996), in which it concluded that "‘the
influence - if not the command - of the Seventh Amendment,'" 518 U.S. at 432 (quoting Byrd
v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 537 (1958)(footnote omitted)), requires
federal courts of appeals to review a federal trial court's denial of a motion to set aside a jury's
verdict as excessive only for an "abuse of discretion." Id. at 439. In other words, in order to
avoid detriment to the Seventh Amendment's reexamination clause, our review of the district
court's denial of a new trial may not be less deferential than for "abuse of discretion." Id. at
419. Appellate review for abuse of discretion is reconcilable with the Seventh Amendment
because it involves "not a question of fact with respect to which reasonable men may differ, but
a question of law." Id. at 435 (quoting Dagnello, 289 F.2d at 806). Accordingly, "[i]f we reverse,
it must be because of an abuse of discretion . . . . The very nature of the problem counsels
restraint . . . . We must give the benefit of every doubt to the judgment of the trial judge." Id.
at 438-439 (citing Dagnello, 289 F.2d at 806).Consequently, we may not, as Captain D's
importunes, undertake a re-examination of the facts of this case in comparison with the facts
of other awards in other jurisdictions’ cases to determine whether the jury verdict's damages
award here is excessive. Under Gasperini, we can only review the district court's denial of a
new trial or remittitur for an abuse of discretion. Having performed that review carefully and
thoroughly in accordance with the Supreme Court's decision, and finding no abuse of discretion

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C. Trial Errors
Captain D’s contends that a new trial is warranted because various trial
errors rendered the proceedings fundamentally unfair to it. Captain D’s points
to the following: (1) allowing plaintiff’s expert witness, Stuart Feigenbaum, to
testify to matters outside his expertise; (2) admitting irrelevant prejudicial
evidence regarding Captain D’s training manuals and post-accident conduct; (3)
excluding evidence of Foradori’s marijuana use; (4) excluding evidence of
Foradori’s family circumstances; (5) allowing Foradori’s counsel to make a per-
diem argument for damages; (6) giving improper jury instructions on respondeat
superior and duty and submitting to the jury a confusing form verdict; (7)
upholding the jury’s compromise verdict for future medical expenses; and (8)
admitting plaintiff’s unauthenticated medical bills as an exhibit.
A new trial will not be granted based on trial error unless, after
considering the record as a whole, the court concludes that manifest injustice
will result from letting the verdict stand. See Johnson v. Ford Motor Co., 988
F.2d 573, 582 (5th Cir. 1993). “We will reverse the trial court’s denial of a
motion for new trial only when there is a clear showing of an abuse of
discretion.” Carr v. Wal-Mart Stores, Inc., 312 F.3d 667, 670 (5th Cir. 2002)
(quoting Hiltgen, 47 F.3d at 703).

1. Testimony of Stuart Feigenbaum
When Foradori tendered Stuart Feigenbaum as an expert in the field of
restaurant management, Captain D’s stated: “No objection.” On direct
examination, Feigenbaum opined that Captain D’s had negligently trained and

by the district court, we cannot set the district court's decision or the jury's verdict aside.

48
 No. 06-60030

supervised its employees. Captain D’s still offered no objection. On cross-
examination, Feigenbaum answered defense counsel’s questions about how
restaurants should guard against workplace violence, particularly as to what
precautions and actions restaurant manager Peggy King should have taken
because of the altercation. Fiegenbaum conceded, however, that he was not an
expert in “specific training” on “how to diffuse workplace violence.”24 Even so, he
answered defendant’s attorney’s questions according to his “common sense.”
During redirect examination, the district court consistently sustained objections
by Captain D’s counsel to ill-founded questions by counsel opposite.25 After the
close of testimony, the district court instructed the jury to consider whether the
expert testimony was based on sufficient education and experience.
Despite offering no relevant, timely objection to Feigenbaum’s qualification
and expertise at trial,26 Captain D’s now asserts that Feigenbaum was

24
Fiegenbaum’s testimony is susceptible to the reasonable interpretation that, while
he was knowledgeable in restaurant management and the basics required of managers in
handling potentially violent situations, he was not an expert in teaching specifics to individual
manager-trainees.
25
When Foradori’s counsel asked Feigenbaum “if we don’t understand all of their
training [i.e. Captain D’s training policies as evidenced in Captain D’s manuals] as was
suggested [by defense counsel], whose fault is that[?],” the district court sustained Captain D’s
objection, stating that such opinion was outside of Feigenbaum’s area of expertise. Also, the
district court sustained objections to plaintiff counsel’s mischaracterization of King’s testimony
and to leading questions.
26
In a motion in limine, Captain D’s raised a Daubert objection to Feigenbaum’s
qualifications; however, Captain D’s waived it by failing to timely object to his qualification
and testimony at trial. See C.P. Interests, Inc. v. Cal. Pools, Inc., 238 F.3d 690, 701 (5th Cir.
2001) (holding that although a defendant filed a motion in limine on an evidentiary issue, a
failure to object to the evidence at trial waives the issue for appeal); Wilson v. Waggener, 837
F.2d 220, 222 (5th Cir. 1988) (“In order to preserve the admission of evidence as error for
appellate review, an objection must be made at trial. A motion in limine is insufficient to meet
this requirement. A party whose motion in limine is overruled must renew his objection when
the evidence is about to be introduced at trial. [By failing to object to an evidentiary issue at

49
 No. 06-60030

“improperly permitted to give testimony unsupported by the expertise required
by Rule 702 of the Federal Rules of Evidence.” Specifically, Captain D’s argues
that, although it did not object to Feigenbaum’s acceptance as an expert on
restaurant management, because he later conceded that he had no expertise in
specific training of employees to defuse workplace violence, his un-objected-to
testimony on the inadequacy of Captain D’s training and regulation of its
managers, particularly Peggy King, should not have been presented to the jury.
Captain D’s asserts that Feigenbaum’s testimony in this area prejudiced the jury
because his testimony was the only support for the jury’s finding of negligent
training, regulation, supervision, and control of employees.
Because Captain D’s did not timely object to the testimony it now
challenges, we review these claims for plain error only, see United States v.
Duffaut, 314 F.3d 203, 208-09 (5th Cir. 2002), and conclude that Captain D’s
cannot meet this standard. Though Captain D’s arguments fail to satisfy many
of the requirements for plain error, we note only the crucial shortcoming that is
simplest to address: Captain D’s failed to demonstrate that any alleged error
affected its substantial rights. Captain D’s contends that it was prejudiced by
Feigenbaum’s testimony because it was the only evidence supporting the jury’s
finding that defendant’s negligent supervision and training of its employees was
a proximate cause of Foradori’s injury. But, as we have already described above,
the jury’s verdict was overwhelmingly supported by other evidence, viz., the

trial, plaintiff] has not preserved this issue for appellate review.”) (internal citation omitted).
Captain D’s contends that its motion to strike Feigenbaum’s testimony should suffice
for a timely objection, but this motion was not raised until the day after Feigenbaum had
finished testifying. As such, it cannot be considered timely. See United States v. Pettigrew, 77
F.3d 1500, 1516 n.14 (5th Cir. 1996) (holding that a motion to strike testimony filed the
following day does not constitute a “timely objection” under Fed. R. Evidence 103(a)).

50
 No. 06-60030

testimony elicited from Captain D’s employees and managers as well as
Foradori. Thus, the jury’s verdict was amply supported even without
Feigenbaum’s testimony. Because Captain D’s does not contend that it was
prejudiced in any other way by Feigenbaum’s testimony, we conclude that it has
made no showing that any error in this respect affected its substantial rights.
Consequently, Captain D’s cannot demonstrate plain error. See id.

2. Argument regarding Captain D’s training manuals and post-
accident conduct
Captain D’s argues that the district court erred by admitting into evidence
Captain D’s training manual, which contains an instruction that employees
should “never admit fault,” and testimony regarding Captain D’s post-accident
conduct. Captain D’s contends that this evidence is sufficiently irrelevant under
Fed. R. Evid. 401 and prejudicial under Fed. R. Evid. 403 that it should have
been excluded. Further, Captain D’s asserts that the district court’s permitting
Foradori’s counsel to rely on this evidence in arguments to the jury sufficiently
prejudiced Captain D’s so as to warrant a new trial. We disagree.
Captain D’s did not object to admission of the training manual’s “never
admit fault” provision at trial.27 Accordingly, we review this issue for plain error
only, see Duffaut, 314 F.3d at 208-09, and we find none because any possible
error here is not clear or obvious. See id. While the manual’s instruction that

27
In a motion in limine, Captain D’s did object to the “never admit fault” materials,
seeking to have that portion of the training manual redacted. The district court denied the
motion just prior to the commencement of trial. However, Captain D’s waived the issue for
appeal because it failed to renew the motion with a timely objection when the evidence was
introduced at trial. See Fed. R. Evid. 103(a); C.P. Interests, Inc., 238 F.3d at 701; Wilson, 837
F.2d at 222.

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employees should “never admit fault” is probably prejudicial and was repeated
as a refrain in Foradori’s attorney’s closing arguments, the district court
admitted the training manual’s statement for the relevant purpose of showing
Captain D’s failure to train and inculcate its employees in their responsibility
for protecting customers from risks attendant to on-premises conflicts. The
district court could, within its discretion, have determined that the danger of
unfair prejudice here was minimal and did not outweigh the probative value of
the evidence. Thus, there is no reversible plain error here because there is no
clear error.
As for evidence of Captain D’s post-accident conduct, this testimony was
not unfairly prejudicial and its admission did not constitute an abuse of
discretion. Captain D’s objected to questions about whether Rhodes, Captain D’s
general manager, asked his employees about the incidents leading up to
Foradori’s injury. Rhodes stated that he did not. He also stated that the two
employees involved in the fight, Harris and Cannon, were not fired immediately
after the incident because he considered the episode to have been an accident.
Finally, he stated that his managers were the ones who conducted the
investigation and that they “told me everything I needed to know.” The district
court found this testimony to “shed[] considerable light upon [the] managerial
style.” The trial judge reasonably could have concluded that the evidence of
Captain D’s lack of concern and precautions for customer safety post-episode had
probative value tending to show managerial attitudes at the time of the
altercation and assault that was not substantially outweighed by its prejudicial
effects. Thus, the district court did not abuse its discretion by admitting this
evidence.

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3. Marijuana usage
Captain D’s argues that the district court erred in excluding the testimony
of its expert witness, Dr. Fredrick Carlton, who would have expressed his
opinion that Foradori’s marijuana use could have made him more susceptible
to spinal injury and memory impairment. Dr. Carlton was not Foradori’s
treating physician, had never examined Foradori, and had no first hand
knowledge of Foradori’s alleged admission to marijuana use. Dr. Carlton
evidently was willing to testify, based exclusively on another doctor’s report of
Foradori’s statement,”[I] smoked some weed,” in the emergency room, that his
ingestion of an unknown quantity of marijuana could have contributed to
Foradori’s broken neck.
The district court found that the danger of unfair prejudice by the evidence
substantially outweighed its probative value under Fed. R. Evid. 403. The court
stated that “Dr. Carlton would have this court believe that only an intoxicated
individual who is struck from behind in an extremely violent manner which
causes him to immediately lose consciousness and fall off a retaining wall could
suffer a cervical spine injury.” The district court concluded that this testimony
was highly unlikely to be reliable, did not satisfy Daubert scrutiny, and would
only risk misleading the jury under the guise of expert testimony.28 The district
court did not abuse its discretion.

28
The district court also noted the possible prejudicial effect of the marijuana evidence,
suspecting that Captain D’s attorneys impermissibly intended to use the evidence primarily
to cast doubts on Foradori’s character. This suspicion arose in conjunction with another “low
point at trial,” in which Captain D’s attorney, without any prior or subsequent justification
asked Foradori, who is obviously a caucasian, whether his girlfriend is an African-American.

53
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4. Evidence of Foradori’s family situation
Captain D’s also alleges that the district court erred in preventing it from
challenging Foradori’s future earning potential, particularly the assumption that
he would graduate from college, by excessively restricting the cross-examination
of Foradori and Foradori’s father. We conclude that the district court did not
abuse its discretion and that Captain D’s was not unduly limited in its ability to
cross-examine.
The only limitation that the district court placed on Captain D’s cross-
examination was that any evidence meant to challenge Foradori’s future earning
potential must be probative of that issue, and this requirement that evidence be
relevant to the issue it purports to establish cannot be an abuse of discretion.
In a pre-trial order, the district court expressly stated that it would allow
evidence relevant to Foradori’s future earning potential but would require that
any evidence offered for this purpose have actual probative value.29 During trial,
the district court twice reminded Captain D’s of this order but specifically
allowed Captain D’s to question Foradori about his father’s educational
background and to question Foradori’s father about Foradori’s desire to attend
college.
Nonetheless, Captain D’s claims that the district court erred by
“exclud[ing] any testimony to directly rebut testimony about Foradori’s future
income.” Specifically, Captain D’s complains that the district court erred in
excluding 1) evidence that Foradori used marijuana, 2) Foradori’s father’s

29
“The court will permit Captain D’s to introduce evidence which might tend to
establish Foradori’s future earning potential (or lack thereof), but the court will take care that
any such evidence has actual probative value in this regard and that it is not merely used to
‘smear’ or denigrate [Foradori and his family] in the eyes of the jury.”

54
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testimony that he believed Foradori had used alcohol and illegal drugs, and 3)
Foradori’s father’s testimony that Foradori was “heading for trouble” and “not
towards the direction of college.” We disagree.
As for Foradori’s father’s testimony that he believed Foradori had used
drugs and alcohol and that Foradori was not heading towards college, the
district court did not exclude this evidence. Rather Captain D’s chose not to
pursue it, voluntarily limiting its questioning of Foradori’s father before the jury
and asking these questions only as an offer of proof. Also, contrary to Captain
D’s assertion, during cross-examination before the jury Captain D’s did question
Foradori’s father about Foradori’s desire to attend college, and the district court
made no limitation on this cross-examination.
Further, we find that the district court did not err in excluding evidence
of Foradori’s marijuana use. As the district court noted, evidence that Foradori
merely used marijuana on unspecified occasions in the past is highly prejudicial,
and it has little bearing on Foradori’s likelihood to attend college or his future
earnings. Thus, the district court did not abuse its discretion in excluding the
highly prejudicial and minimally relevant evidence of Foradori’s marijuana use.

5. Per-diem closing argument
Captain D’s contends that under our precedents we must grant it a new
trial because the district court (after allowing plaintiff’s counsel, over
defendant’s objection, to make an argument suggesting a per diem or unit-of-
time dollar amount which the jury should award for loss of enjoyment of life) did
not, sua sponte, instruct the jury that the argument was simply counsel’s
method of presenting his contention and was not evidence in the case – even
though the defense did not request such an instruction. In effect, Captain D’s

55
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contends that a district court’s allowance of any objected-to unit-of-time
argument is per se reversible error unless the court automatically cures it with
a cautionary instruction.
Our cases do not establish such a hard and fast rule, however. We have
held that a unit-of-time argument is not reversible per se30 but may be allowed,
within the trial court’s discretion, when couched with proper safeguards or
otherwise cured.31 In so holding, we warned of dangers that may accompany a
unit-of-time argument and suggested safeguards that district courts may use to
control them.32 We indicated that when an objected-to unit-of-time argument is
made the district court may not within its discretion deny the defendant at least
the right to the chief safeguard, a cautionary instruction.33 But we have never

30
Westbrook v. Gen. Tire & Rubber Co., 754 F.2d 1233, 1240, n.5 (5th Cir 1985).
31
Id. (citing Country Mut. Ins. Co. v. Eastman, 356 F.2d 880 (5th Cir. 1966); Baron
Tube Co. v. Transp. Ins. Co., 365 F.2d 858 (5th Cir. 1966) (en banc) (modifying Johnson v.
Colglazier, 348 F.2d 420 (5th Cir. 1965)).
32
Baron Tube, 365 F.2d at 865. (“The safeguards which may be utilized may take the
form of requiring that counsel notify the court and opposing counsel in advance of argument
that the unit of time argument will be made. Since charts are generally used, they should be
carefully scrutinized to eliminate any false factual impressions. Also, the court should, as was
done in the instant case, make it clear to the jury that the unit of time argument is merely a
method of presenting contentions, and is not to be considered as evidence. This may be done
at the time the argument is made, or in charge to the jury, or on both occasions. And, as Judge
Brown went on to say in his dissent: ‘* * * to assure effective complete policing, the Court can
construct the charge, either general or on special interrogatories, so that each element is
separately fixed. (Rule 49, F.R.Civ.P.) The Judge can readily tell whether the verdict is
measurably infected on this element by an extravagant runaway jury.’ Lastly, it goes without
saying that the court has ample control over excessive verdicts.”)
33
Id. (“We hasten to reiterate that these matters, except for requiring a cautionary
instruction, are left to the discretion of the trial court.”); accord Fontenot v. Dual Drilling Co.
179 F.3d 969 (5th Cir. 1999) (reversing damage award based on failure to give tendered
cautionary instruction regarding unit-of-time argument coupled with failure to submit
requested jury interrogatory on comparative fault); Colburn v. Bunge Towing, Inc., 883 F.2d

56
 No. 06-60030

held that a district court which allows an objected-to unit-of-time argument must
sua sponte give an unrequested cautionary instruction in order to avoid
reversible error.34
In our decisions involving challenged unit-of-time arguments, we have
overturned a jury verdict on damages only when, after careful examination of
the nature of the argument within the context of the court’s rulings on
objections, the jury charge, and any corrective measures applied by the trial
court,35 there is a clear showing of excessiveness or that the verdict was
influenced by passion or prejudice.36 Other factors we have taken into account
in making this determination are whether the jury appears to have adopted
counsel’s unit-of-time argument,37 whether there was any other contributing
impropriety or error,38 whether the award borders on or surpasses the

372 (5th Cir. 1989) (reversing damage award virtually duplicating unit-of-time argument
because trial court refused to give requested proffered cautionary instruction coupled with
erroneous instruction on lost future earnings).
34
Cf. United States v. Moreno, 84 F.3d 1452 (D.C. Cir 1996) (“As to the failure of the
district court to give a sua sponte cautionary instruction, we observed in United States v. Rhodes that
“there are occasions when, for tactical reasons, defense counsel may wish to forego ... a limiting
instruction because it might focus the jury’s attention on the damaging evidence” and that “we cannot
impose on district courts the obligation to give such an instruction sua sponte.” 62 F.3d 1449, 1453-
54 (D.C. Cir.1995), petition for cert. filed (U.S. Jan. 30, 1996) (No. 95-7711).”)
35
Westbrook, 754 F.2d at 1239.
36
Id. at 1241 (citing Martin v. City of New Orleans, 678 F.2d 1321, 1326-27 (5th Cir.
1982); Shows, 671 F.2d at 934.
37
Id. at 1240.
38
Id. at 1238, 1241.

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excessive,39 and whether it appears that something besides the evidence was at
work.40
In the present case, after examining the record in light of the foregoing
factors, we conclude that there is no reasonable likelihood that the per-diem
argument on loss of enjoyment of life which Captain D’s complains of in this
appeal caused or contributed to an unfair or excessive verdict.
In that argument, plaintiff’s counsel stated:

Michael Foradori Jr. got paralyzed by their employee on their
property when he was 15 years old. If he lives to be 68 instead of 78
he’s going to live 19,345 days. If he lived his normal life expectancy,
he would live to be 78. That’s 3650 days of a lifetime. Of losing
enjoyment of that part of his life. Total days, 22,995 days.
Now, as to the loss of enjoyment of life, let’s drop down to the
bottom right here. Less than $1100 a day for loss of enjoyment of life
for the 22,995 days is $25 million. You know, it’s a big number. But
I put a big value on life and the enjoyment of life and arms and legs
and the stuff that this boy’s been required to go through.

Plaintiff’s counsel did not present any charts or complicated calculations in
support of this brief, simple oral statement. In the argument, the lawyer did
nothing to disguise that he was asking the jury to accept his own suggestion of
how much Foradori should be compensated per day for his loss of enjoyment of
life and to multiply that amount by the number of days of Foradori’s remaining
expected lifetime, which had been estimated by the expert witnesses.

39
Id. at 1240.
40
Id.

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By its nature, this transparent per-diem argument does not present the
dangers that we have detected in more elaborate unit-of-time arguments
supported by charts and formulae in previous cases. For example, in Johnson v.
Colglazier, 348 F.2d at 425, this court described with disapproval the plaintiff’s
counsel’s per-diem argument as follows:
[A]n argument designed, calculated, and effective to mislead the
jury into believing that the determination of a proper award for
legal damages for pain and suffering is a matter of precise and
accurate determination and not, as it really is, a matter to be left to
the jury’s determination, uninfluenced by arguments and charts of
the kind involved here, which could only be regarded as tending to
mislead the jury into believing that there was an accurate ‘legal’
guide or chart to assist and direct them in reaching a large verdict
for pain and suffering on considerations which have no proper legal
place in the determination.

Foradori’s attorney, unlike the counsel in Johnson v. Colglazier, displayed no
design to mislead the jury. He used no chart or legal guide and made no pretense
that the amount of less than $1100 per day he suggested to the jury was based
anything but his own thoughts. Further, he explained his contention with
simple arithmetic rather than difficult to understand tables or formulae. Thus,
in this case, the per-diem argument was plain and simple enough that, even
without a cautionary instruction, it was “clear to the jury that the unit of time
argument is merely a method of presenting contentions, and is not to be
considered as evidence.”41

41
Baron Tube, 365 F.2d 858, 865 (5th Cir. 1966).

59
 No. 06-60030

Further, the district court gave an extensive instruction making clear to
the jury that the attorneys’ arguments did not constitute evidence and that the
sworn testimony of the witnesses and the exhibits were the only evidence that
the jury could consider. The court, in pertinent part, charged the jury as follows:
As stated earlier, it is your duty to determine the facts and in
so doing you must consider only the evidence I have admitted in the
case. The term evidence includes the sworn testimony of the
witnesses and the exhibits admitted in the record.
Remember, any statements, objections or arguments by the
lawyers are not evidence in this case. The function of the lawyers is
to point out those things that are most significant or most helpful to
their side of the case and in so doing, to call your attention to
certain facts or inferences that might otherwise escape your notice.
In the final analysis, however, it is your own recollection and
interpretation of the evidence that controls in the case. What the
lawyers say is not binding on you.
Additionally, the district court made use of other safeguards recommended
by this court in Baron Tube by requiring the jury to answer special
interrogatories fixing separately the amount of each itemized award for pain and
suffering and loss of enjoyment of life; past reasonable and necessary medical
expenses incurred; present value of future such medical expenses; and present
value of loss of future earnings and earning capacity. Thus, the district court’s
use of that safeguard enabled it to readily determine that the awards were based
on the jury’s own sound discretion and not measurably infected by the attorneys’
arguments.
Further, there is no evidence or sign that the jury adopted the unit-of-time
argument or was influenced by it in any way. Foradori’s attorney used a unit-of-
time argument to suggest that the jury award $20 million for pain and suffering

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and $25 million for loss of enjoyment life, or a total of $45 million for both. The
jury awarded Foradori only a total of $10 million for both. On appeal, Captain
D’s does not even complain or argue against plaintiff counsel’s use of a similar
per-diem argument in suggesting an award for Foradori’s pain and suffering.
Finally, as explained earlier in this opinion, the damages that the jury
awarded Foradori for his pain and suffering and loss of enjoyment of life do not
border on or surpass the excessive. The decision to grant or deny a motion or a
new trial rests in the sound discretion of the trial judge; that discretion can be
set aside only upon a clear showing of abuse.42 Where, as here, the trial judge
has denied the motion and left the decision of the jury intact, this circuit has
shown even greater deference to the trial judge’s discretion.43 Finding no abuse
of discretion or trial error in connection with the per-diem argument, we decline
to set aside the district court’s ruling or judgment.

6. Jury instructions and verdict forms
Captain D’s argues that the district court gave two erroneous instructions
and an erroneous verdict form to the jury. However, Captain D’s fails to
designate, and we cannot find, any clear or distinct objection to these
instructions and verdict form in the record.44 Thus, we review these claims for

42
Westbrook, 754 F.2d at 1241 (citing Franks v. Associated Air Ctr., Inc., 663 F.2d 583,
586 (5th Cir. 1981); Evers v. Equifax, Inc., 650 F.2d 793, 796 (5th Cir. 1981)).
43
Id. (citing Franks, 663 F.2d at 586; Reeves v. Gen. Foods Corp., 682 F.2d 515, 519
(5th Cir. 1982)).
44
Federal Rule of Civil Procedure 51(c), in pertinent part, provides: “A party who
objects to an instruction or the failure to give an instruction must do so on the record, stating

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 No. 06-60030

plain error only. See Russell v. Plano Bank & Trust, 130 F.3d 715, 721 (5th Cir.
1997) (“Where the party challenging the district court’s instructions has failed
to raise the objection before the district court and his position has not been made
clear to the court in some other manner, our consideration of the issue is limited
to plain error review.”).
Captain D’s contends that the district court: (1) gave a jury instruction on
“respondeat superior” that “implicitly allowed the jury to impute to Captain D’s
the independent, criminal conduct of Harris”; (2) failed to instruct the jury that
Captain D’s only owed a duty to supervise or train if it knew of Harris’s
propensity for violence or of an atmosphere of violence; and (3) provided the jury
with a confusing verdict form. We conclude that the district court did not
commit clear error in any of these respects.
The district court’s instructions did not implicitly inform the jury that it
could hold Captain D’s vicariously liable for Harris’s intentional criminal
conduct. The district court instructed the jury only on negligence theories and
did not mention Harris’s intentional criminal conduct except in respect to the
defensive theory of superseding cause. The district court instructed that Captain
D’s could be held liable for its officers’ or employees’ negligent failure to train or
supervise its employees if the jury determined that the negligence on the part
of Captain D’s was a proximate cause of injury suffered by Foradori. Then, after
giving instructions on proximate cause, the court charged the jury that:

distinctly the matter objected to and the grounds of the objection.”

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if you find from a preponderance of the evidence in this case that the
defendant Captain D’s LLC was negligent in training and/or
supervising its employees, but that an independent and
unforeseeable act by a third person, namely an assault on Michael
Foradori by Garious Harris, followed defendant’s negligent acts and
was a substantial factor in causing the plaintiff’s injuries, then the
defendant is not liable for the injuries proximately resulting from
the superseding cause and your verdict should be for the defendant.

The district court’s instructions also admonished the jurors to consider the
instructions as a whole and not to single out one instructions as stating the law.
We see no plain error in these instructions.
Captain D’s is simply mistaken in contending that the district court should
have instructed the jury that Captain D’s liability hinged upon its knowledge of
Harris’s propensity for violence or of an atmosphere of violence. As we explained
earlier in this opinion, Foradori did not seek to hold Captain D’s liable on the
theory that it negligently hired or retained Harris because it knew or should
have known of Harris’s propensity for violence; nor did Foradori base his claim
on the theory that there was a preexisting atmosphere of violence in the
neighbor of the restaurant. Consequently, jury instructions on those theories
would have been irrelevant and perhaps misleading and confusing to the jury.
The district court did not plainly err in refusing to give them.
Also, the district court addressed and corrected any possible confusion in
its verdict form. The form at issue was first written: “we, the jury, find that both
the plaintiff and the defendant ___ were ___ were not negligent.” The jury asked
what to do if the verdict was for the plaintiff alone. The court conferred with the

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parties, admitted that there was a problem, and issued a corrective instruction
which both parties agreed to and allowed to be given without objection. There
was no plain error in this respect.

7. Compromise Verdict
Captain D’s argues that the jury award of $8 million to Foradori for the
present value of the reasonable and necessary medical expenses he is likely to
incur in the future was an improper compromise verdict.45 The record does not
support this contention.
At trial, Foradori’s expert testified that Foradori’s future medical expenses
in “present value” dollars would add up to $10,329,567.18. Captain D’s expert
did not testify, but Captain D’s was allowed to introduce his written report in
which he estimated the present value of Foradori’s future medical expenses to
be $6,300,924.00. Both estimates appear to be open to criticism as either based
partially on unproven assumptions or unadjusted calculations.46

45
Captain D’s allegations do not fit the mold of typical “compromise verdict” claims we
have considered in the past. See, e.g., Pagan v. Shoney’s, Inc., 931 F.2d 334, 339 (5th Cir. 1991)
(“A compromise verdict occurs when a jury which is unable to agree on liability compromises
that disagreement and awards inadequate damages.”). Nonetheless, we review the claim as
Captain D’s presents it.
46
On the one hand, the opinion of Nat Fentress, Foradori’s expert in life-care planning
for the catastrophically injured, could be criticized as omitting an adjustment for the present
value of Foradori’s expected future medical expenses because, though it stated an amount in
“present value” dollars, it did not appear to account for actuarial economic principles such as
the potential use of annuities to fund future medical expenses. Also, by Fentress’s own
admission, his calculation took no account of potential inflation in the cost of medical expenses,
which could result in the need for substantial upward revision of the figure.
On the other hand, the report of Captain D’s economic expert, Dr. Gerald Lee, may be

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The district court submitted to the jury a special interrogatory for
damages, asking, in relevant part, for the “present value of the reasonable and
necessary medical expenses to be incurred by plaintiff in the future”; the jury
awarded $8 million. Captain D’s challenged this verdict in its motion requesting
a new trial on damages or remittitur. The district court denied the motion,
assigning extensive reasons for refusing to alter the jury’s verdict. As part of its
reasoning, the district court observed:

This is not an element of damages about which there is some
mathematically “correct” amount; any calculations in this regard
inherently involve a large degree of guesswork regarding plaintiff’s
life expectancy and the amount of medical care which he will
require. Captain D’s asserts that the jury’s verdict was a
“compromise” but there is no evidence in support of that assertion,
such as if the award had been the precise difference between the two
calculations...[T]he court does not view an $8 million award as being
against the overwhelming weight of the evidence for a young
quadriplegic who will require constant care (including assistance
urinating and defecating, pain and antidepressant medication,
among many others) for the rest of his life.

faulted for relying on an incorrect premise. Dr. Lee’s report offers an estimate of the present
value, assuming a 50 year life span, of the $10,329,567.18 figure to which Fentress testified,
but Dr. Lee’s report takes no apparent account of Fentress’s testimony that the figure was
already calculated in “present value” dollars. Thus, the report could represent a present-value
discount of an amount already substantially discounted to present value. Further, in its
reasons for denying Captain D’s motion for judgment as a matter of law, the district court also
expressed concern regarding Dr. Lee’s apparent failure to account for future inflation in
medical costs, a subject about which the district court intended to question Dr. Lee. However,
because Dr. Lee did not testify, the district court never received the opportunity to pose its
questions, and Dr. Lee’s report was not subject to cross examination.

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Unable to find evidence of a compromise verdict, we affirm the district
court. “In determining whether a compromise verdict exists, this court considers
any indicia of compromise apparent from the record . . . .” Pagan, 931 F.2d at
339; see also 11 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane,
Federal Practice & Procedure § 2810 (2d ed. 2007) (stating that an alleged
compromise verdict warrants a new trial only if “it is obvious from the face of the
verdict that it is a compromise.”). When a jury might reasonably reach an
allegedly improper award based on the evidence in the record, no compromise
exists. See Pagan, 931 F.2d at 339 (“No compromise exists, however, when
another basis for an [allegedly] improper award exists.”) (citing Hadra v.
Herman Blum Consulting Eng’r, 632 F.2d 1242, 1246 (5th Cir.1980); Burger
King Corp. v. Mason, 710 F.2d 1480, 1487 (11th Cir.1983)).
Here we find no indication of compromise. The jury’s award of $8 million
does not simply split the difference between the two amounts proposed by the
opposing experts; rather, the award appears to be a reasonable calculation based
on a weighing of the evidence presented by both parties. Furthermore, the jury
was instructed to make a present value finding as to Foradori’s future medical
expenses, and we must presume that, as its verdict indicates, it did so. See
United States v. Gallardo-Trapero, 185 F.3d 307, 321 (5th Cir. 1999) (assuming
juries follow instructions).
In arguing to the contrary, the only evidence that Captain D’s presents is
the fact that the jury did not return the precise amount proposed by either
expert. However, such is not a basis for error. See Garner v. Santoro, 865 F.2d
629, 644 (5th Cir. 1989) (stating that in a “battle of the experts” a jury “must be

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allowed to make credibility determinations and weigh the conflicting evidence
in order to decide the likely truth of a matter”). Thus, we find that the jury’s
award of $8 million for the present value of Foradori’s future medical expenses
was not an improper compromise verdict, and we affirm the district court’s
denial of Captain D’s motion for a new trial or remittitur on the issue.

8. Past medical expenses
Captain D’s challenges the jury’s award of $1,581,884.41 to Foradori for
past reasonable and necessary medical expenses incurred because of his
quadriplegia. Captain D’s argues that the district court committed reversible
error by admitting Foradori’s medical bills into evidence because they were
inadmissible hearsay evidence under Fed. R. Evid. 801 and were not
authenticated as required by Fed. R. Evid. 901. Accordingly, Captain D’s asserts
that it should have been granted a new trial on damages, or, alternatively, a
remittitur of $1,556,840. We disagree.
On the first day of the trial, plaintiff’s counsel asked Foradori if he knew
how much he had incurred in medical expenses because of his quadriplegia from
the date of his injury, December 22 of 2000, to the date he compiled his medical
bills before the commencement of the trial on October 3 of 2005. Captain D’s
counsel asked for a conference outside the jury’s presence. In the conference,
Captain D’s counsel objected to Foradori’s testimony regarding his medical bills
on the grounds that he lacked sufficient knowledge of them and to the
introduction of Foradori’s medical bills on the grounds that they were hearsay

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and had not been authenticated. After further discussion, the district court
overruled the objection on the grounds that under the Miss. Code Ann. § 41-9-
119 Foradori was entitled to testify to the medical expenses he had incurred and
to introduce the bills he had received as evidence of the expenses. However, the
court informed Captain D’s counsel that he would be given ample opportunity
both to cross-examine Foradori regarding the expenses incurred and the bills
introduced and to introduce evidence challenging the bills and Foradori’s
testimony.47
When the trial resumed the next day, Foradori testified, without objection,
that as a result of his quadriplegia he had incurred over $1,556,84048 in medical
expenses for treatment and services at a number of medical institutions: North
Mississippi Medical Center in Tupelo, Mississippi; Regional Medical Center in
Memphis, Tennessee; Shepherd Center in Atlanta, Georgia; Atlanta Psychiatric
and Neurology Clinic in Atlanta, Georgia; Kings Daughters Nursing Home in
Memphis, Tennessee. He further testified that he had bills for these expenses
totaling $1,556,840 and identified a binder marked Plaintiff’s Exhibit P12 as
containing those bills.
Based on Foradori’s testimony, plaintiff’s counsel offered to introduce
Exhibit P12 into evidence. The court asked if there was any objection, and
Captain D’s counsel said: “No additional objection besides what we have

47
In denying Captian D’s motion for a new trial, the district court again based its
ruling on Miss. Code Ann. § 41-9-119 as well as other grounds.
48
Foradori testified that his expenses totaled $1,556,840 at the time he last compiled
his bills but that he had incurred additional bills every day since then and would continue
incurring bills every day.

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discussed yesterday, Your Honor.” The court then allowed Exhibit P12 to be
entered into evidence.
Captain D’s counsel did not cross-examine Foradori regarding his
testimony about his medical expenses or medical bills. Nor did Captain D’s
introduce any contradictory evidence of its own contesting Foradori’s testimony
or the P12 medical bills.
The Mississippi statute referred to by the district court, Miss. Code Ann.
§ 41-9-119, provides: “Proof that medical, hospital, and doctor bills were paid or
incurred because of any illness, disease, or injury shall be prima facie evidence
that such bills so paid or incurred were necessary and reasonable.” Miss. Code
Ann. § 41-9-119. The Mississippi Supreme Court has interpreted the statute as
simplifying the procedure for proving medical expenses as an element of a claim
by (1) permitting a claimant, based on his or her testimony, to identify and
introduce medical bills incurred because of the illness, disease, or injury sued
upon; and (2) establishing the bills so identified and introduced as prima facie
evidence and a rebuttable presumption49 that the expenses were necessary and
reasonable. For example, the court has explained:
Before the enactment of section 41-9-119, the common law
was that medical expenses, where claimed as an element of damage,
required proof connecting the bills for such medical expenses with

49
The term "prima facie evidence" is typically understood to include a "presumption,"
see Black's Law Dictionary 598 (8th ed. 2004) ("prima facie evidence. Evidence that will
establish a fact or sustain a judgment unless contradictory evidence is produced"), and the
Mississippi courts have construed it to have this meaning and effect. Nevertheless, to avoid
any confusion we will continue to use both terms in tandem because medical bills introduced
under the statute establish not only a presumption affecting the burden of producing evidence
but they also constitute evidence admissible for consideration by the jury.

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the injury or disease sued on, together with proof that the charges
for the medical expenses claimed were reasonable. The purpose of
[Miss. Code Ann. § 41-9-119] was to simplify the procedure for
proving medical expenses where claimed as an element of damages.
It permits a party to introduce bills for medical expenses which have
been paid or incurred, upon the testimony of the party that the bills
were incurred or paid because of the illness, disease or injury sued
on and makes the bills prima facie evidence that the treatment was
necessary and the charges therefor were reasonable.

McCay v. Jones, 354 So. 2d 1095, 1101 (Miss. 1978) (internal citation omitted).

When a party takes the witness stand and exhibits bills for
examination by the court and testifies that said bills were incurred
as a result of the injuries complained of, they become prima facie
evidence that the bills so paid or incurred were necessary and
reasonable. However, the opposing party may, if desired, rebut the
necessity and reasonableness of the bills by proper evidence. The
ultimate question is then for the jury to determine.

Jackson v. Brumfield, 458 So. 2d 736, 737 (Miss. 1984). Although Mississippi
codified its common law hearsay and authenticity principles as rules of evidence,
see Miss. R. Evid. 801 & 901, Mississippi courts have continued to interpret §
41-9-119 as superseding the standard hearsay and authenticity bars or
conditions to admissibility, making medical bills vouched for by victims’ in-court
testimony not only admissible but, in combination with that testimony, prima
facie evidence and a presumption of proof of that part of a victim’s damages case.
See Harvey v. Wall, 649 So. 2d 184, 189 (Miss. 1995) (citing Jackson, 458 So. 2d
at 737); Biloxi Reg’l Med. Ctr., Inc. v. Estate of Ross, 546 So. 2d 667, 671 (Miss.

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1989) (citing Jackson, 458 So. 2d at 737) ; Alfa Mut. Ins. Co. v. Cascio, 909 So.
2d 174, 177, 181 (Miss. App. Ct. 2005); see also Tom R. Mason, The Little Rule
that Never Was: Mississippi Rule of Evidence 301 Presumptions in Civil Actions
and Proceedings, 70 Miss. L.J. 743, 800 (2000) (classifying Miss. Code Ann. § 41-
9-119 as an “ordinary presumption” shifting the burden of production to the
defendant).
Thus, under Miss. Code Ann. § 41-9-119, when Foradori took the witness
stand and exhibited his medical bills for examination by the court and testified
that they were incurred as a result of the injuries complained of, they became
prima facie evidence and triggered the presumption that the bills so paid or
incurred were necessary and reasonable. However, Captain D’s could have, if it
so desired, rebutted the necessity and reasonableness of the bills by proper
evidence. Had Captain D’s done so, the ultimate question would then have been
for the jury to determine. In this case, however, Captain D’s elected not to cross
examine Foradori or to introduce any rebuttal evidence.
Because Miss. Code Ann. § 41-9-119, via Federal Rule of Evidence 302,
applies in this case, the district court properly admitted Foradori’s medical bills,
and Captain D’s objection and argument to the contrary, based on Federal Rules
of Evidence 803 and 901, is not well founded. Rule 302 provides that when state
law supplies the rule of decision for a claim, as in this diversity case, that same
state law also determines the effect of any presumption respecting a fact which
is an element of the claim. Fed. R. Evid. 302; C. Mueller & L. Kirkpatrick, 1
Federal Evidence § 3:14 (“Fed. R. Evid. 302 requires federal courts to give state
presumptions the same effect state law would give them . . . .”); see also Clayton

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v. Burston, 493 F.2d 429, 431 (5th Cir. 1974) (“[I]n a diversity tort case the
applicability of any presumption, either of negligence or due care, is governed by
state law.”); Barron v. Ford Motor Co., 965 F.2d 195, 198-99 (7th Cir. 1992)
(noting that under Fed. R. Evid. 302, 501, and 601, the Federal Rules of
Evidence apply state law “with respect to presumptions, privilege, and
competency of witnesses”); 19 Charles Alan Wright, Arthur R. Miller, & Edward
H. Cooper, Federal Practice & Procedure § 4512 (2d ed. 2007) (same). Foradori’s
incurrence of $1,556,840 in past medical expenses as a result of his quadriplegia
is a fact which is an element of his claim, to which the law of Mississippi
supplies the rule of decision. Hence, Fed. R. Evid. 302 provides that Mississippi
law, not federal law, determines the effects of any state-law presumption
respecting that fact. Thus, the effects of the rebuttable presumption and prima
facie evidence authorized by Miss. Code Ann. § 41-9-119 are governed by
Mississippi law in this diversity case rather than by Fed. R. Evid. 803 and 901.
See Fed. R. Evid. 302; 21b Charles A. Wright & Kenneth W. Graham, Jr.,
Federal Practice and Procedure § 5136 (2d ed. 2007).
Therefore, we conclude that the district court’s ruling that Foradori was
entitled to introduce his medical bills through his testimony, thereby
establishing them as prima facie evidence and a presumption of reasonable and
necessary medical expenses, was proper. Captain D’s failed to avail itself of its
right under the statute to cross-examine Foradori and to introduce rebuttal
evidence challenging his past medical expenses evidence introduced in
connection with plaintiff’s exhibit P12. Accordingly, we find no error in the
district court’s admission of the evidence, or abuse of discretion in its denial of

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a new trial or a remittitur, in respect to the jury’s damage award of $1,556,840
in past medical expenses.

IV. Conclusion
For these reasons, we AFFIRM the judgment of the district court.

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