IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-30514
Summary Calendar
ROGER D. CROWE,
Plaintiff-Appellee,
versus
STEWART MACHINE & ENGINEERING CO., INC.;
JAMES G. BUCHART; NEW HAMPSHIRE INSURANCE
COMPANY,
Defendants-Appellants.
Appeal from the United States District Court for the
Eastern District of Louisiana
(CA-90-3933-J)
January 29, 1996
Before GARWOOD, JOLLY and PARKER, Circuit Judges.*
PER CURIAM:
Defendants-appellants appeal the judgment following retrial on
damages as per our previous opinion. Crowe v. Stewart Machine &
Engineering Co. and James G. Buchart, No. 92-3535 (5th Cir. Aug.
30, 1993) (unpublished). This suit is for damages sustained in a
February 3, 1990, accident in which appellant James Buchart
(Buchart), driving a truck owned by his employer, appellant Stewart
*
Pursuant to Local Rule 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
Machine & Engineering Co. (Stewart Machine), rear-ended the vehicle
driven by plaintiff-appellee Roger Crowe (Crowe), as a result of
which Crowe suffered several severe injuries requiring
hospitalization and surgery on his back and neck. On May 29, 1990,
Crowe was involved in another accident when he was rear-ended by a
vehicle driven by Terry King (King), an employee of Saucier
Construction Co. (Saucier), after which Crowe underwent additional
surgery and hospitalization.
Crowe brought this suit against Buchart and Stewart Machine,
and Buchart and Stewart Machine brought a third-party claim against
King and Saucier (and its insurer). King and Saucier were not made
defendants to Crowe’s claims. At the close of the evidence in the
jury trial, the district court, on Crowe’s motion, granted him
judgment as a matter of law as to liability for the February 3
accident against Buchart and Stewart Machine, and, on the motion of
Buchart and Stewart Machine, granted judgment as a matter of law
that King and Saucier were liable for the May 29, 1990, accident,
and the trial proceeded on the issue of damages. The jury found
Crowe suffered no damages from the May 29 accident, and $197,000
damages from the February 3 accident. As to the February 3
accident, the jury found no lost wages or loss of future earning
capacity, $135,000 for past and future physical pain and mental
suffering, $50,000 for past medical, and $12,000 for future
medical. Judgment was entered in favor of Crowe and against
Stewart Machine and Buchart for $197,000; the judgment likewise
dismissed the third-party complaint of Stewart Machine and Buchart
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against King and Saucier (and its insurer). Crowe appealed the
denial of his motion for new trial complaining of the inadequacy of
the damages found as to the February 3 accident; the liability of
King and Saucier for the May 29 collision, and the award of no
damages in respect thereto, was not appealed. On appeal we awarded
a new trial on damages, as there was no legitimate explanation for
the award of only $50,000 past medical since the undisputed
evidence showed at least $92,000.
Retrial was ultimately set for November 21, 1994, only on the
issue of past medical. However, On November 7, 1994, a different
panel of this Court granted Crowe’s petition for mandamus and
ordered retrial on all items of Crowe’s damages. In the interim,
Stewart Machine had taken bankruptcy and thereafter, in July 1994,
Crowe, with leave of court, had added appellee New Hampshire
Insurance Company (New Hampshire), Stewart Machine’s liability
carrier, as a defendant. On retrial, the parties stipulated that
Crowe’s recoverable past medical expenses for the February 3
accident were $137,014.19. The jury returned a general verdict of
$701,000 for damages proximately caused by the February 3 accident
exclusive of past medical expenses (which the jury was expressly
told not to include, as that had been stipulated). The jury was
also instructed to consider only past and future physical pain and
suffering and mental anguish and suffering, permanent residual
disability, past lost wages and loss of future earning capacity,
and reasonable future medical expenses. Judgment was entered in
Crowe’s favor against Stewart Machine, Buchart, and New Hampshire
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for a total of $838,014.19 with interest from date of judgment
(prejudgment interest was disallowed).
Appellants assert that the trial court erred by granting
Crowe’s motion in limine to exclude evidence of the May 29
accident. The record reveals that Crowe filed such a motion; it
also reflects the district court’s two handwritten notations, each
dated November 16, 1994, one on a form of order on the motion in
limine, marked “Denied,” and the other on a form of order on a
motion for expedited hearing on the motion in limine, marked
“Denied——the issues raised by the motion in limine will be decided
at trial as necessary.” Appellants have supplemented the record
with a January 27, 1995, affidavit by former counsel filed in the
district court and a partial transcript of a hearing before the
district court on their motion to supplement the record in this
respect. The affidavit states that on the morning trial began,
November 21, 1994, there was a conference in the judge’s chambers,
not made a part of the record or attended by the court reporter, at
which Crowe’s motion in limine was discussed and “the court made it
clear to both attorneys, that it was his position that there should
be absolutely no mention of the second accident of May 29, 1990,
either by fact witnesses, or expert witnesses, be they doctors or
economists.”1 The transcript of the hearing on the motion to
supplement reflects that the district court did not ultimately
accept or reject the contention that he had so ruled on the motion
1
The docket sheet does not reflect any pretrial hearing
November 21, or any order then on any motion.
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in limine, stating “the record will reveal what happened” and “I
don’t have an independent recollection of it and I am not going to
accept yours unless you can show me in the record.” This hearing
transcript also reflects the district court’s seeming belief that
the May 29 accident was not material. We conclude that the
district court did grant Crowe some relief on his motion in limine
as to the May 29 accident, but precisely what relief, or just how
firm the district court’s ruling was, we are unable to ascertain.
The only mention at the second trial of the May 29, 1990,
accident was on direct examination of one of Crowe’s doctors who
testified before the jury——without any objection——that Crowe had
stated that “[t]wo weeks later [after his May 1990 surgery] he had
a second motor vehicle accident with fracture of the fusion at C3-4
and was reoperated, but since that time, had persistent neck and
left shoulder pain with numbness of the outer aspect of his arm and
hand.”
At no time during the second trial did any of appellants make
or seek leave to make any offer or proof whatever (specific or
general)——out of the presence of the jury or otherwise——respecting
the May 29 accident. Indeed, there is nothing in the record to
show that any appellant opposed the motion in limine or ever
expressed the desire to introduce evidence of the May 29 accident.
No such showing is even made by former counsel’s above-mentioned
January 27, 1995 affidavit.
Under these circumstances, the claim of error has not been
properly preserved. See United States v. Graves, 5 F.3d 1546, 1552
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(5th Cir. 1993), cert. denied, 114 S.Ct. 1829 (1994), where we
observed:
“One commentator advises that ‘where an objection [in the
form of a motion in limine] has been sustained an offer
of proof should be made at trial to make sure that appeal
rights are preserved.’ See 1 John W. Strong et al.,
McCormick on Evidence § 52 at 203 (4th ed. 1992)
(footnote omitted). This advice is well taken in this
Circuit.” Id.
See also Federal Rule of Evidence 103(a)(2).2 We decline the
invitation to reverse on this ground.
Appellant New Hampshire next claims that it should have been
dismissed because the Louisiana Direct Action Statute did not apply
as the accident occurred in Mississippi and its policy was
delivered there. However, not even a hint of any such contention
was ever raised prior to the return of the verdict. We will not
countenance such sandbagging. Cf. Sierra Club v. Yeutter, 926 F.2d
429, 434-436 (5th Cir. 1991); Lirette v. N.L. Sperry Sun, Inc., 820
F.2d 116 (5th Cir. 1987) (en banc). There was proper jurisdiction,
both personal and subject matter (diversity).
It is next claimed that the verdict was excessive. Given the
limited review available to us, we reject this contention. We note
that over $137,000 in past medical was stipulated, thus obviously
reflecting very serious injury. Appellants point to the
differences in the size of the verdicts as between the first and
2
We also note that the district court instructed the jury
that:
“You are not to award damages for any injury or condition from
which the Plaintiff may have suffered or may now be suffering
unless it has been established by a preponderance of the evidence
in this case that such injury or condition was proximately caused
by the accident in question.”
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second trial. However, much of this is accounted for by the fact
that in the first trial no past or future wage loss was awarded. In
the second trial, even appellants’ economist admitted to $256,000
past and discounted future lost wages, while Crowe’s expert
testified to $315,000 as the appropriate figure. Both experts also
estimated future medical at about $40,000 discounted (compared to
only $12,000 awarded in the first trial). Taking the average
between the two experts produces about $325,000 for the total of
lost past and discounted future lost wages and discounted future
medical, leaving some $376,000 for past and future pain and
suffering. We are unable to say that this is so plainly excessive
as to authorize us to award a new trial or a remittitur.
Finally, appellants complain of the overruling of their motion
for continuance occasioned by our November 7, 1994, mandamus. We
cannot say that counsel should have been surprised by that ruling,
or that the two weeks remaining were insufficient to prepare for
the second trial of this case. No abuse of discretion by the
district court has been shown. We reject this contention.
A third trial of this case is neither required nor
appropriate.
The judgment of the district court is
AFFIRMED.
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