with whom
McMILLIAN, Circuit Judge, joins, dissenting in part, and concurring in part.I respectfully dissent from the decision of the majority to remand this case to the district court to correct the remittitur figure for Ted Rodgers to $1,808,547.67. I would affirm the judgment of the district court entered after the second trial.
The majority opinion suffers from two infirmities. It treats the issue of damages by considering the particular elements of damage separately and not the damage award as a whole, and its entire chain of reasoning is based on the amounts of the separate items of damage requested by counsel in argument.
The district court concluded from reviewing the entire record as to amount of damages that the verdict was clearly excessive, against the great weight of evidence, and not supported by substantial evidence. In considering remittitur, the district court recognized that the standard was the highest amount of damages the jury could properly have awarded. It specifically found that the jury gave substantial consideration to the grossly exaggerated claim for nurs*491ing care even to the extent of the full amount requested by counsel in his summation. The district court, therefore, ordered a remittitur. While it did so in the amount that the claimed future nursing service exceeded the cost of the services as supported by the record, the following conclusions made clear that it was based on the verdict as a whole:
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 analysis and its conclusion are 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 counsel in argument.
The district court’s conclusion is consistent with the standards set forth in Slatton v. Martin K. Eby Construction Co., 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.
The jury returned a general verdict. There were no interrogatories and no special verdict to inform us how the jury considered the request for each specific item of damages. We know only the amount of the general verdict and the district court in its order clearly deals with the general verdict and the amount of damages as a whole.
The majority can only speculate that the jury determined to award the exact amount of loss of earnings requested by plaintiff and the exact amount of damages for pain and suffering requested by plaintiff. It is only because the evidence was so clear on the question of nursing services that the district court was justified in making a specific conclusion on that item. The district court properly considered the total amount of the jury award and found it to be excessive, and in doing so reasoned from the excessive amount of the nursing services requested. Its conclusion, however, was not limited to this specific item of damages, but rather was based on the damages as a whole. The majority errs in reviewing the question by breaking the award down into its presumed components and engaging in its own calculations. For all we know, the jury in reaching its award may have felt that the claims for all three items were excessive. The only logical way for the verdict to be reviewed is the manner followed by the district court in considering it as a whole.
We place our analysis on quicksand created by the fervor of counsel when we take as a starting point in review of a damage award the amount counsel requests in jury argument, and the particular items in the request for damages. Optimism springs eternal in counsel requesting an award from a jury. Lawyers are instructed to request generous awards from juries and experience teaches that very few err by requesting damages on the low side. The district court in reaching its conclusion followed Slatton in looking to the largest sum which the jury could reasonably have awarded based on competent and substantial evidence. We should review the case from this standpoint rather than from the standpoint of the detail of the jury arguments made by optimistic counsel for plaintiff. It would be equally fallacious to view a jury award from the standpoint of the abstemious arguments of counsel for the defendant. The point is that arguments of counsel, whether of plaintiff or defendant, should not be the measure but rather what the jury could reasonably have found. This was the standpoint from which the verdict was reviewed by the district court and it should be the standpoint from which this court reviews the verdict.