F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
June 15, 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
EARL JOHNSON,
Plaintiff-Appellee,
v. No. 03-3052
ABLT TRUCKING CO., INC., and
TED TAMMEN, an individual,
Defendants-Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(Case No. 1:01-1187-DWB)
Stephen M. Kerwick, (Jay F. Fowler, with him on the briefs) Foulston Siefkin,
LLP, Wichita, Kansas, for Defendants-Appellants.
Jack Tracy, Purcell, Oklahoma (Kathleen N. Wohlgemuth, Martin & Churchill,
Chtd., Wichita, Kansas, with him on the briefs) for Plaintiff-Appellee.
Before McCONNELL, TYMKOVICH, and HOLLOWAY, Circuit Judges.
McCONNELL, Circuit Judge.
The Seventh Amendment right to a jury trial does not permit entry of a
judgment when a jury’s verdict is internally inconsistent. This can occur when,
instead of rendering a single general verdict (such as “the defendant owes the
plaintiff $100”), the jury renders a “special verdict” (written findings on each
issue of fact) or a general verdict accompanied by answers to interrogatories.
This Court has interpreted Rule 49 of the Federal Rules of Civil Procedure to
require a contemporaneous objection if a party believes a general verdict with
special interrogatories is internally inconsistent, but has not required such an
objection in the case of a special verdict. In this case, defendants seek a new trial
on the basis of an alleged inconsistency in the jury’s verdict to which they did not
object. The case thus raises two difficult questions: whether the jury’s verdict
was a special verdict or a general verdict with answers to interrogatories, and, if
the former, whether the jury’s verdict was irreconcilably inconsistent.
I.
This diversity appeal arises out of an automobile accident in which Plaintiff
Earl Johnson suffered severe injuries. It is governed by Kansas law. Early in the
morning of August 30, 1999, Mr. Tammen, an employee of ABLT, attempted to
make a U-turn in his semi truck on Interstate 135 just north of Wichita, Kansas.
Meanwhile, Mr. Johnson approached the scene from the south in his pickup truck,
pulling a U-Haul trailer. Though Mr. Tammen’s semi was blocking both
northbound lanes, Mr. Johnson did not see the truck until it was too late. He
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slammed into the side of the trailer at a speed of 45 to 50 miles per hour. Mr.
Johnson was cushioned from the impact by an airbag, but the collision trapped
him in his pickup truck with his feet pinned under the dash and the steering wheel
pressing into his chest. After several minutes, Mr. Tammen began to pull away,
dragging Mr. Johnson’s pickup, with Mr. Johnson still inside, under the trailer.
An eyewitness observed that sparks from the wreckage were igniting gasoline in
the front of Mr. Johnson’s pickup. He ran to Mr. Tammen’s truck and asked for
his fire extinguisher, but Mr. Tammen refused. The eyewitness and a volunteer
fireman managed to extract Mr. Johnson from his pickup. By the time the fire
department arrived, the pickup and the U-Haul trailer were engulfed in flames.
Mr. Johnson filed this lawsuit against Mr. Tammen and ABLT alleging
negligence and negligence per se. The case was submitted to a jury, using the
verdict form specified under Kansas law for cases involving comparative
negligence. The verdict form read:
We, the Jury, impaneled and sworn in the above entitled case,
upon our oaths, do make the following answers to the questions
propounded by the court:
1. Do you find any of the parties to be at fault?
Answer: Yes ____ No ____
Proceed to question 2 only if you answered “yes” to question 1.
2. Considering all the fault at 100%, what percentage of
the fault is attributable to each of the following persons:
Earl Johnson _____%
Ted Tammen _____%
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Total 100%
Proceed to the remaining question only if you found the fault
of Plaintiff Earl Johnson to be less than 50% of the total fault.
3. Without considering the percentage of fault set forth in
question 2, what damages do you find were sustained by plaintiff?
a. Noneconomic loss to date $______
b. Future noneconomic loss $______
c. Medical expenses to date $______
d. Economic loss to date $______
e. Future economic loss $______
Total $______
Memorandum and Order, Jan. 28, 2003, Aplt. App. Vol. III 791. The jury
answered “yes” to the first question. On the second question it attributed 10% of
the fault to Mr. Johnson and 90% to Mr. Tammen. On the third question, it found
damages in the following amounts: (1) $39,482.46 in medical expenses to date;
(2) $75,000 in economic loss to date; and (3) $325,000 in future economic loss.
After the jury returned its verdict, the court asked counsel whether there
was any reason that the court should not enter judgment on the verdict. Neither
party objected to the verdict. Judgment for Mr. Johnson in the amount of
$395,482.46 was entered on the next business day.
On September 13, 2002, ABLT filed a motion for new trial, see Fed. R.
Civ. P. 59(a), arguing that the jury returned a special verdict pursuant to Rule
49(a) and that the jury’s answers to the special verdict were irreconcilably
inconsistent. Specifically, ABLT argued that the jury’s “award of substantial
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medical expenses and lost wages is irreconcilably inconsistent with its finding of
no pain, suffering, or disability.” Motion for New Trial, Aplt. App. 769. The
district court denied the motion for new trial, finding that the jury’s answers to
the special verdict were not irreconcilably inconsistent. ABLT appealed.
II.
A.
ABLT failed to object to the alleged inconsistency in the verdict before the
jury was discharged. The first question is whether this constitutes waiver.
Interpreting Rule 49(b) of the Federal Rules of Civil Procedure, this Court has
held that a party waives the right to object to inconsistencies in a general verdict
with special interrogatories if it does not object on that ground before the jury is
discharged “unless the verdict is inconsistent on its face such that the entry of
judgment upon the verdict is plain error.” Resolution Trust Corp. v. Stone, 998
F.2d 1534, 1545 (10th Cir. 1993). When the jury returns a special verdict,
however, a party is not required to object to inconsistencies in the verdict before
the jury is discharged in order to preserve the issue. Id.; see also Heno v.
Sprint/United Mgmt. Co., 208 F.3d 847, 851 (10th Cir. 2000) (“Although a party
waives a claim of inconsistent verdicts based on a general jury verdict under Fed.
R. Civ. P. 49(b), if not timely raised, this rule does not apply to special verdicts
under Fed. R. Civ. P. 49(a).”); Bonin v. Tour West, Inc., 896 F.2d 1260, 1263
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(10th Cir. 1990).
In Bonin v. Tour West, we justified the no-waiver rule by reference to the
text of Rule 49(a) which, unlike Rule 49(b), does not direct the court to resubmit
an inconsistent verdict to the jury for further deliberation. Rule 49(b) provides
specifically for the treatment of inconsistent general verdicts with special
interrogatories:
When the [special interrogatory] answers are consistent with each
other but one or more is inconsistent with the general verdict,
judgment may be entered pursuant to Rule 58 in accordance with the
answers, notwithstanding the general verdict, or the court may return
the jury for further consideration of its answers and verdict or may
order a new trial. When the answers are inconsistent with each other
and one or more is likewise inconsistent with the general verdict,
judgment shall not be entered, but the court shall return the jury for
further consideration of its answers and verdict or shall order a new
trial.
Fed. R. Civ. P. 49(b). Rule 49(a) does not provide for resubmission to the jury.
Based on the lack of specific direction in the rule, we concluded that the court
lacked authority to resubmit a special verdict, and therefore the party was not
required to object to the inconsistency before the court discharged the jury.
Bonin, 896 F.2d at 1263. 1
Whether ABLT’s failure to object constitutes a waiver thus hinges on the
1
The members of this panel believe that Rule 49 should be amended, or in
an appropriate case our interpretation revised, to require parties to object to an
inconsistent special verdict before the jury has been discharged. In this case we
adhere, as we must, to circuit precedent.
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characterization of the verdict as either a special verdict or a general verdict with
answers to special interrogatories. The district court held that the verdict form
submitted to the jury was a special verdict under Rule 49(a), noting that the
verdict form was taken directly from the Kansas pattern jury instructions. See
Memorandum and Order 1 n.1, Aplt. App. Vol. III 790 (citing Pattern Instructions
Kansas 3rd, Civil § 181.04). Since the issue was not raised below, the district
court did not consider whether characterization of the verdict form presented a
question of state or federal law. This appeal does not require us to resolve the
choice of law question either, because the jury’s verdict is a special verdict under
both state and federal law.
There is no question that the jury returned a special verdict under Kansas
law. Kansas requires the use of a special verdict in personal injury cases
involving comparative negligence. See Kan. Stat. Ann. § 60-258a(b). The district
court’s verdict form conforms closely to the pattern prescribed by the Kansas
legislature. See Kan. Stat. Ann. § 60-249a. Because the verdict is tailored to the
state’s requirements for special verdict forms, the verdict qualifies as a special
verdict under Kansas law.
The verdict is a special verdict under federal law as well. As Mr. Johnson
correctly notes, the hallmark of a general verdict is that it requires the jury to
announce the “ultimate legal result of each claim.” See Zhang v. Am. Gem.
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Seafoods, Inc., 339 F.3d 1020, 1031 (9th Cir. 2003). Simply put, a general
verdict “permits the jury to decide who wins.” Aple. Supp. Br. 3. A special
verdict, by contrast, presents the jury with specific questions of fact. After the
jury returns its verdict, the court applies the law to the facts found by the jury and
enters judgment accordingly. See Zhang, 339 F.3d at 1031. The verdict form in
this case required the jury to answer specific questions of fact regarding fault and
damages. The judgment itself required application of the law by the judge to the
facts found by the jury. It is therefore a special verdict.
Mr. Johnson maintains that the verdict form, which asked, “Do you find any
of the parties to be at fault?”, required the jury to determine which party
prevailed. Mr. Johnson maintains that the jury’s affirmative response to this
question was a finding that the defendants were at fault and that the plaintiff won.
This is not an accurate characterization. The first question on the verdict form
indicated an affirmative answer to the question “Do you find any of the parties to
be at fault?” but it did not state which one. It turns out from the second question
that the answer was both. Moreover, before the jury’s allocation of fault between
the parties—10% to Mr. Johnson, 90% to ABLT—could be translated into a
judgment, the judge was required to apply the state’s law limiting liability in
cases of comparative negligence to those in which the defendant was more than
50% responsible, and multiplying the jury’s finding of percentage responsibility
8
by the jury’s finding of damages. The verdict thus did not announce the “ultimate
legal result of each claim,” and therefore was not a general verdict.
The cases cited by Mr. Johnson are easily distinguishable. In Resolution
Trust Corp. v. Stone, a case involving several counts of RICO violations and
securities fraud, the court issued a separate verdict form for each count asking
whether the defendant was liable to the plaintiff or, on some counts, whether the
defendant violated the relevant statute. 998 F.2d at 1546 n.11. The Court noted
that statutory violation was not normally equivalent to liability, but in the context
of the court’s instructions and the verdict form, a finding of statutory violation
established the defendant’s liability and required the jury to determine damages.
Id. at 1546–47. Because the jury’s response to the first question on each verdict
form established who prevailed on the relevant count, the verdict was a general
verdict. Id. at 1547.
Our decision in Thompson v. State Farm Fire & Casualty Co., 34 F.3d 932
(10th Cir. 1994), draws the line even more clearly. The first part of the verdict
form asked the jury whether “the plaintiffs . . . should recover on their contract
claim against the defendant.” Id. at 945. The Court determined that this question
was plainly a general verdict, id. at 944, and subsequent questions regarding
damages, bad faith, and the plaintiffs’ violation of specific policy provisions,
were special interrogatories. Unlike the verdict form at issue here, the verdict in
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Thompson established that the plaintiffs should recover.
Similarly, in Babcock v. General Motors Corp., 299 F.3d 60, 63 (1st Cir.
2002), the verdict form asked: (1) “Has plaintiff proved her negligence claim by a
preponderance of the evidence?”; and (2) “Has plaintiff proved her product
liability claim by a preponderance of the evidence?” Notwithstanding the verdict
form’s title—“SPECIAL VERDICT FORM”—the court held that it was a general
verdict because the jury did not merely make findings of fact. Id. Rather, by
determining whether the plaintiff proved her negligence and product liability
claims, the jury entered conclusions of law and determined who prevailed on each
count.
In this case, the verdict form asked only whether the jury found “any of the
parties to be at fault.” An affirmative answer to the question does not assign fault
to either party. It could mean that the plaintiff, the defendants, or (as it turns out)
both parties were responsible for the accident. The second interrogatory required
the jury to assign a percentage of fault to each party. After the jury entered its
finding of fact on the second question, the judge applied the controlling law of
comparative negligence to determine whether the plaintiff prevailed. The jury’s
answers to the special verdict questions did not decide the winner of the case.
The district court therefore properly characterized the jury’s verdict as a special
verdict.
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B.
Because the verdict was special, ABLT’s failure to object was not a waiver
of its right to seek a new trial on the basis of the supposed inconsistency in the
verdict. We must therefore determine whether the jury’s verdict was inconsistent.
This is not done lightly. In order to protect the jury’s function, the courts must
“reconcile the jury’s findings, by exegesis if necessary, . . . before [they] are free
to disregard the jury’s special verdict and remand the case for a new trial.”
Gallick v. Baltimore & Ohio R.R. Co., 372 U.S. 108, 119 (1963) (internal
citations omitted); see also Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines,
Ltd., 369 U.S. 355, 364 (1962) (“Where there is a view of the case that makes the
jury’s answers to special interrogatories consistent, they must be resolved that
way.”). If there is any plausible theory that supports the verdict, the reviewing
court must affirm the judgment.
The reviewing court does not have the authority, however, to invade the
province of the jury by disregarding factual findings. When the jury provides
answers that are irreconcilably inconsistent, the court cannot enter judgment
without choosing between the conflicting findings of fact and thereby overturning
one of them. See Finnegan v. Fountain, 915 F.2d 817, 820 (2d Cir. 1990) (“The
Seventh Amendment right to a jury trial precludes entry of a judgment based on
an inconsistent jury verdict that thereby disregards any material jury finding.”);
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Mercer v. Long Mfg. N.C., Inc., 671 F.2d 946, 948 n.1 (5th Cir. 1982) (per
curiam) (“The legal error resulting from the entry of a judgment based on
inconsistent special interrogatories is one which undermines the validity and
integrity of the judgment and may, in fact, run afoul of the Seventh Amendment
by allowing the District Court to usurp the jury's function.”), cited in Bonin, 896
F.2d at 1263.
To be irreconcilably inconsistent, the jury’s answers must be “logically
incompatible, thereby indicating that the jury was confused or abused its power.”
Stone v. Chicago, 738 F.2d 896, 899 (7th Cir. 1984). For example, a verdict that
finds (1) no negligence by the defendant and (2) that the defendant’s negligence
caused the plaintiff’s injuries, is facially inconsistent and cannot form the basis of
a judgment. See Shaun P. Martin, Rationalizing the Irrational: The Treatment of
Untenable Federal Civil Jury Verdicts, 28 Creighton L. Rev. 683, 715 (1995).
A verdict is irreconcilably inconsistent only when “the essential controlling
findings are in conflict, the jury has failed utterly to perform its function of
determining the facts, and its verdict is a nullity.” Abner Eddins Lipscomb,
Special Verdicts Under the Federal Rules, 25 Wash. U. L.Q. 185, 212 (1940); see
also McIntyre v. Everest & Jennings, Inc., 575 F.2d 155, 157 (8th Cir. 1978) (“If
[special verdict answers] are irreconcilably inconsistent, they destroy each
other.”). A jury’s verdict may not be overturned merely because the reviewing
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court finds the jury’s resolution of different questions in the case difficult, though
not impossible, to square. See, e.g., Stone v. Chicago, 738 F.2d at 899 (finding
no logical inconsistency in the jury’s finding that officers were not negligent
when they struck the plaintiff’s bicycle and its finding that the officers attempted
to cover up their involvement in the accident); Schaafsma v. Morin Vermont Co.,
802 F.2d 629, 634 (2d Cir. 1986) (holding that the jury’s finding of mutual
mistake regarding the amount of land sold was not irreconcilably inconsistent
with its finding of fraud because other representations, such as its boundaries,
road frontage, and fair value, might have been fraudulent).
ABLT argues that the jury’s failure to award damages for future pain and
suffering is irreconcilably inconsistent with its award of substantial future
economic damages. ABLT maintains that the jury’s award of zero damages for
future pain and suffering amounts to a factual finding that Mr. Johnson will not
suffer accident-related pain in the future. ABLT therefore argues that the jury’s
verdict is inconsistent on its face because a damage award for pain and suffering
was a necessary premise of an award of damages for future economic loss.
ABLT’s argument is not valid as a matter of logic or of substantive law. It
is not metaphysically impossible for a plaintiff to incur future economic losses
without corresponding non-economic losses such as pain and suffering or mental
anguish. Neither is it inconsistent with Kansas law to recover damages for loss of
13
future earning capacity without an award of damages for pain and suffering, even
when the loss of earning capacity is caused by pain.
Kansas has long held that if the plaintiff’s injuries cause pain that prevents
him from working, the appropriate damage award is an award for loss of earning
capacity. In other words, compensation for the plaintiff’s inability to work, when
caused by accident-related pain, is not compensation for pain but for the loss of
earning capacity. McGranahan v. McGough, 820 P.2d 403, 409 (Kan. 1991)
(discussing the rule that pain and suffering is compensable under the workmen’s
compensation act as an economic loss if it “interferes with the ability to perform
labor”) (citing Trowbridge v. Wilson & Co., 170 P. 816, 816 (Kan. 1918)
(“Compensation for loss of wages or for loss of ability to earn wages, although
that loss may be caused by pain, is not the same as damages for the pain.”)).
ABLT argues that a factual finding of future pain must be reflected in an
award of damages for future pain and suffering. In cases like the present one,
however, the jury’s finding of future pain may be reflected in an award of
damages for future economic loss. This is consistent with the purpose of
economic and noneconomic damages under Kansas law:
Economic damages include the cost of medical care, past and future,
and related benefits, i.e., lost wages, loss of earning capacity, and
other such losses. Noneconomic losses include claims for pain and
suffering, mental anguish, injury and disfigurement not affecting
earning capacity, and losses which cannot be easily expressed in
dollars and cents.
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Samsel v. Wheeler Transp. Servs., 789 P.2d 541, 552 (Kan. 1990), overruled on
other grounds, Bair v. Peck, 811 P.2d 1176, 1181 (Kan. 1991). Injuries that
affect earning capacity cause economic losses. Therefore, when accident-related
pain manifests itself solely as an obstacle to the plaintiff’s future employment, the
injury is compensable through damages for loss of future earnings.
Contrary to ABLT’s argument, the jury’s failure to award damages for
future pain and suffering does not imply a finding that Mr. Johnson would not
experience pain in the future. In fact, under Kansas law, it would be more
reasonable to interpret the jury’s award of future economic damages based on lack
of earning capacity as an implicit finding that Mr. Johnson would suffer accident-
related pain in the future. For purposes of inconsistency under Rule 49(a), it is
enough that Kansas law permits a finding of future pain to be reflected in an
award of economic damages. The Seventh Amendment requires us to credit this
theory and uphold the jury’s verdict.
ABLT relies primarily on Germann v. Blatchford, 792 P.2d 1059 (Kan.
1990), a personal injury case based on injuries sustained in a car wreck. The jury
returned a special verdict awarding past medical expenses and damages for loss of
consortium but making no award for pain and suffering. The plaintiff moved for
new trial based on the inadequacy of the jury’s verdict. Id. at 1061. The Kansas
Supreme Court held that the verdict was inadequate and that the plaintiff was
15
entitled to a new trial on damages.
ABLT maintains that Germann turned on the inconsistency of a special
verdict. The court used the term “inconsistent,” but ABLT’s reading of Germann
fails to consider the context of the Kansas Supreme Court’s language, which
included explicit statements contradicting ABLT’s interpretation. Germann did
not hold that the failure to award damages for pain and suffering was inherently
inconsistent with an award of damages for past economic loss. The court held
that the jury’s failure to award damages for pain and suffering was inconsistent
with the evidence, noting that “the evidence of her pain and suffering at the time
of the accident and immediately thereafter . . . is essentially uncontroverted.” Id.
at 1062. It concluded that the jury’s failure to award damages for pain and
suffering “results in an inconsistent verdict which is contrary to the instructions
and the evidence.” Id. at 1064. The court expressly approved the lower court’s
“determination that the verdict was inadequate.” Id. Because Germann addressed
the inconsistency of the verdict with the evidence, as opposed to inherent
inconsistencies in the verdict itself, it is inapposite to this appeal.
III.
We therefore hold that the jury’s special verdict was not irreconcilably
inconsistent under Rule 49(a). The order of the district court is AFFIRMED.
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