Ouachita National Bank, Curator of the Estate of Ted Rodgers Barbara Rodgers and Ted Rodgers v. Tosco Corporation

JOHN R. GIBSON, Circuit Judge,

dissenting.

I respectfully dissent from the decision of the majority to remand this ease to the district court for further consideration of the issue of damages. I would affirm the judgment of the district court.

The district court concluded that the verdict was clearly excessive, against the great weight of evidence, and not supported by substantial evidence. It specifically found that the jury gave substantial consideration to the grossly exaggerated claim for nursing care even to the extent of the full amount requested by counsel in his summation. The district court, therefore, ordered a remittitur in the amount that the claimed future nursing service exceeded the cost of *1302the services as supported by the record and made the following conclusions:

In consideration of all factors and elements of damage claimed, the Court finds that a remittitur should be ordered as to the damages awarded to Ted Rodgers in the amount of $1,987,237.83. This would reduce his recovery to $1,312,762.17, which amount the Court finds is the largest sum which the jury could reasonably have awarded based upon the competent and substantial evidence in the record and after giving the proper weight thereto.

The district court’s conclusion is thus based on the verdict as a whole rather than the specific elements making up the award, pain and suffering, loss of earnings, and future nursing services. The district court’s conclusion should be so reviewed by this court rather than by engaging in mathematical calculations on the items of damages requested by often overly optimistic counsel in argument.

The district court’s conclusion is consistent with the standards set forth in Slatton v. Martin K. Eby Construction Company, Inc., 506 F.2d 505, 508-09 (8th Cir. 1974). Under the principles of Slatton I see no abuse of discretion on the part of the district court in reaching its conclusion.

Plaintiff chose to gamble with a substantial award in a case with a “sharp conflict in the evidence as to the causation of the collision.” I would not relieve plaintiff of the consequences of the gamble, and would affirm the judgment of the district court.