The fact the trial judge reviewed and approved the verdict in this case makes us even more hesitant to overturn the awarded amount. Shows v. Jamison Bedding, Inc., 671 F.2d 927, 934 (5th Cir. 1982); Bridges, supra, 553 F.2d at 880; Brown v. Louisiana and Arkansas Railway Co., 429 F.2d 1265, 1267 (5th Cir. 1970). A.
Nevertheless, Rosiello also recognized "the equally well settled principle that circuit courts are duty-bound to reverse the trial judge's refusal of a new trial where the judge has, as a matter of law, abused his discretion", 354 F.2d at 220. In Brown v. Louisiana Arkansas Ry. Co., 429 F.2d 1265 (5 Cir. 1970), we recognized the factors enunciated by the Supreme Court in Grunenthal v. Long Island R. Co., 393 U.S. 156, 89 S.Ct. 331, 21 L.Ed.2d 309 (1968): (1) grossly excessive, (2) inordinate, (3) shocking to the judicial conscience, (4) outrageously excessive, (5) so large as to shock the conscience of the court, (6) monstrous. In light of our foregoing analysis of the damages proven on behalf of the plaintiff, viewing them in the light most favorable to him, we must look upon this verdict as being grossly excessive and it must be set aside for that reason.
See United States v. United States Gypsum, 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).See Hart v. Forchelli, 445 F.2d 1018 (2d Cir.), cert. denied, 404 U.S. 940, 92 S.Ct. 284, 30 L.Ed.2d 254 (1971); Brown v. Louisiana Arkansas R. Co., 429 F.2d 1265, 1267 (5th Cir. 1970); Gatenby v. Altoona Aviation Corp., 259 F. Supp. 573, 576 (W.D.Pa. 1966); Restatement (Second) of Conflict of Laws § 171 Comment: f; id. § 178, Comment: c; 2 S. Speiser, Recovery for Wrongful Death § 13.17 (2d ed. 1975). Since the line of demarcation between substance and procedure is often difficult to discern, and since the FTCA provides that the United States shall be liable "to the same extent as a private individual under like circumstances," the state appellate standard of review may give some indication of what the state law is. But the prime source we look to is the state statute itself.
A federal jury which of course in this instance consisted of residents of Puerto Rico, is not bound in making its determination by the amount that the Commonwealth courts have awarded or approved. Hart v. Forchelli, 445 F.2d 1018, 1019 (2d Cir.), cert. denied, 404 U.S. 940, 92 S.Ct. 284, 30 L.Ed.2d 254 (1971), citing Brown v. Louisiana Arkansas Ry. Co., 429 F.2d 1265 (5th Cir. 1970). And the seventh amendment not only assures plaintiffs in the present case a jury trial but also that the jury's factual determinations will be reexamined only "according to the rules of the common law."
See also Aircraft Engine Maintenance v. I.E. Schilling Co., 5 Cir. 1965, 340 F.2d 286. Brown v. Louisiana Ark. Ry., 5 Cir. 1970, 429 F.2d 1265; Massachusetts Bonding Ins. Co. v. Abbott, 5 Cir. 1961, 287 F.2d 547. 2.
Karlson v. 305 East 43RD Street Corp., 370 F.2d 467, 472 n. 1 (2d Cir.), cert. denied, 387 U.S. 905, 87 S.Ct. 1690, 18 L.Ed.2d 625 (1967). See Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 536-539, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958); Brown v. Louisiana Arkansas Ry. Co., 429 F.2d 1265, 1267 (5th Cir. 1970). This test has been implicitly approved by the Supreme Court in Grunenthal; that case further directs us to make a detailed appraisal of the evidence bearing on damages in applying the Dagnello test.
Moreover, it is not particularly helpful to examine numerous state cases since federal juries are not bound by the amount that New York juries have awarded or New York courts have approved or disapproved. Brown v. Louisiana Arkansas Ry. Co., 429 F.2d 1265 (5 Cir. 1970). If one calculates the annual income which Mrs. Hart would receive from the $252,000 award based on an investment interest of 6 per cent and also assuming that she would draw on principal as well as income so that at the end of her 35 year life expectancy there would be nothing left, she would have a yearly income of approximately $16,500.
It is equally well settled that when damages are alleged to be excessive the decision to grant or deny a new trial lies within the discretion of the trial judge. His decision will be overturned only on a showing of grave abuse of discretion. Rosiello v. Sellman, 354 F.2d 219 (5th Cir. 1965); Brown v. Louisiana Arkansas Railway Co., 429 F.2d 1265 (5th Cir. 1970); Troutman, Jr. v. Southern Railway Co., 441 F.2d 586 (5th Cir. 1971). No such abuse of discretion has been shown here.
Marsh v. Illinois Central Railroad Co., 5 Cir., 1949, 175 F.2d 498, 500. See also Whiteman v. Pitrie, 5 Cir., 1955, 220 F.2d 914; Telfair v. Zim Israel Navigation Co., Ltd., 5 Cir., 1970, 428 F.2d 127; Brown v. Louisiana Arkansas Ry. Co., 5 Cir., 1970, 429 F.2d 1265. Thus the trial Judge might readily determine that a new trial should be had even though a Judgment N.O.V. could not be ordered.
The factors are: (1) grossly excessive, (2) inordinate, (3) shocking to the judicial conscience, (4) outrageously excessive, (5) so large as to shock the conscience of the court, and (6) monstrous. Perricone v. Kansas City Southern Ry. Co., 630 F.2d 317, 820 (5th Cir. 1980); Brown v. Louisiana Arkansas Ry. Co., 429 F.2d 1265, 1267 n. 2 (5th Cir. 1970). Regardless of which verbal formulation is used, the Court finds the damages assessed by the jury in this case to be excessive.