Coralluzzo v. Education Management Corp.

United States Court of Appeals,

Eleventh Circuit.

No. 94-4754.

Judith CORALLUZZO, Individually and as Personal Representative of
the Estate of Ernest Coralluzzo, Deceased, Plaintiff-Appellant,

v.

EDUCATION MANAGEMENT CORPORATION, a Pennsylvania corporation,
Ocean World Associates, Ltd., a Florida limited partnership, Ocean
World, Inc., a Florida corporation, AIFL Limited Partnership, a
Florida limited partnership, Defendants-Appellees.

June 20, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 93-6051-CIV), Shelby Highsmith, Judge.

Before TJOFLAT, Chief Judge, and RONEY and PHILLIPS*, Senior
Circuit Judges.

PER CURIAM:

Belying its friendly name, "Dimples," a 9-foot, 600-700 pound

male dolphin, bit and raked with his sharp teeth the left forearm

of Ernest Coralluzzo. Ocean World had invited Coralluzzo and other

members of the audience to poolside to observe and pet the animals

after the dolphin and sea lion show at its marine theme park in

Fort Lauderdale, Florida.

In the lawsuit that followed, the defendants admitted

liability. The jury, by special verdict, awarded past medical and

hospital expenses of $15,000 and punitive damages of $5,000. After

the question on the verdict form as to the amount of damages for

Coralluzzo's pain and suffering, disability, inconvenience and

aggravation, however, the jury wrote: "0". It did the same for

*
Honorable J. Dickson Phillips, Jr., Senior U.S. Circuit
Judge for the Fourth Circuit, sitting by designation.
loss of past consortium of his wife, and awarded nothing for future

damages to either plaintiff.

The plaintiffs appeal the denial of a motion for a new trial,

which was grounded on the failure of the jury to award damages for

indisputable pain and suffering and loss of consortium. We affirm

on the ground that the plaintiffs failed to object to the jury

verdict at the time it was returned and did not request that the

damages issue be resubmitted so that the jury could remedy the

legal defect before it was discharged.

This Court has repeatedly held that all challenges to the

inconsistency of special verdicts must be raised before the jury is

excused. Golub v. J.W. Gant & Assoc's, 863 F.2d 1516, 1521 n. 4

(11th Cir.1989); Itel Capital Corp. v. Cups Coal Co., 707 F.2d

1253, 1261 (11th Cir.1983); Austin-Westshore Constr. Co. v.

Federated Dep't. Stores, 934 F.2d 1217, 1226 (11th Cir.1991).

This waiver rule is governed by federal law. See Geneva

County Bd. of Educ. v. CNA Ins. Co., 874 F.2d 1491, 1497 n. 6 (11th

Cir.1989) (court applies federal waiver rule in diversity case);

Itel Capital Corp. v. Cups Coal Co., 707 F.2d 1253, 1261 (11th

Cir.1983) (same); Stancill v. McKenzie Tank Lines, Inc., 497 F.2d

529, 535 (5th Cir.1974) (same).

Other courts follow the same rule. Williams v. KETV

Television, Inc., 26 F.3d 1439, 1443 (8th Cir.1994) ("It is well

established, at least in this circuit, that a party waives any

objection to an inconsistent verdict if she fails to object to the

inconsistency before the jury is discharged."). "The purpose of

the rule is to allow the original jury to eliminate any
inconsistencies without the need to present the evidence to a new

jury." Lockard v. Missouri Pac. R.R. Co., 894 F.2d 299, 304 (8th

Cir.), (citation omitted), cert. denied, 498 U.S. 847, 111 S.Ct.

134, 112 L.Ed.2d 102 (1990).

To allow a new trial after the objecting party failed to seek
a proper remedy at the only time possible [i.e., before the
jury is discharged] would undermine the incentives for
efficient trial procedure and would allow the possible misuse
of Rule 49 procedures ... by parties anxious to implant a
ground for appeal should the jury's opinion prove distasteful
to them.

Skillin v. Kimball, 643 F.2d 19, 20 (1st Cir.1981); Manes v.

Metro-North Commuter R.R., 801 F.Supp. 954 (D.Conn.1992), aff'd,

990 F.2d 622 (2d Cir.1993) (this waiver was applied in a case with

similar facts). See also Joseph v. Rowlen, 425 F.2d 1010, 1012

(7th Cir.1970) (jury found for the plaintiff but awarded zero

damages; held that "the proper time to object to a verdict which

may appear ambiguous or somehow deficient is at the time it is

returned and before the jury is discharged"); Skourtis v. Ellis,

272 Or. 149, 535 P.2d 1367, 1368-69 (1975) (failure to make

contemporaneous objection to verdict which awarded special damages

and zero damages for pain and suffering constituted a waiver:

objection first made in motion for new trial was untimely);

DeWitty v. Decker, 383 P.2d 734, 737-740 (Wyo.1963) (same);

Cunningham v. Conner, 309 A.2d 500 (D.C.App.1973) (same).

It is perhaps understandable why counsel for plaintiffs would

not want this jury to do any further work on this case. Counsel in

closing argument had requested $49,700 for past and future medical

expenses, $375,000 for Mr. Coralluzzo's pain and suffering, $75,000

for Mrs. Coralluzzo's loss of consortium, and $1,500,000 in
punitive damages. This jury had been quite unresponsive to these

suggestions.

Based on the established law of this Circuit, however, it was

clearly within the district court's discretion to deny the motion

for a new trial based on the ground that the zero verdicts were

improper.

Plaintiffs also argue they are entitled to a new trial

because of comments made by defense counsel during closing argument

focusing on plaintiffs' search for doctors and attempt to obtain an

enormous verdict not justified by the nature of the injuries.

Based upon the briefs, oral argument, and a review of pertinent

parts of the record, we find no abuse of discretion in the denial

of a new trial on this ground.

AFFIRMED.