Opinion
Case No. 20-cv-01293-TC
2024-01-22
Brian MILLER, Plaintiff v. CNH INDUSTRIAL AMERICA LLC, Defendant.
Bradley Joseph LaForge, Deisy Pamela Saenz, Don D. Gribble, II, Gaye B. Tibbets, Hite, Fanning & Honeyman, LLP, Wichita, KS, for Plaintiff. Daniel A. Haws, Pro Hac Vice, HKM, St. Paul, MN, Krista Joan Pezewski, Pro Hac Vice, HAWS-KM, St. Paul, MN, Patrick A. Edwards, Stinson, LLP, Wichita, KS, for Defendant.
Bradley Joseph LaForge, Deisy Pamela Saenz, Don D. Gribble, II, Gaye B. Tibbets, Hite, Fanning & Honeyman, LLP, Wichita, KS, for Plaintiff.
Daniel A. Haws, Pro Hac Vice, HKM, St. Paul, MN, Krista Joan Pezewski, Pro Hac Vice, HAWS-KM, St. Paul, MN, Patrick A. Edwards, Stinson, LLP, Wichita, KS, for Defendant.
ORDER
Toby Crouse, United States District Judge
Brian Miller filed this failure to warn suit for injuries he sustained while operating a tractor manufactured by CNH Industrial America LLC. Doc. 4. A unanimous jury awarded Miller $3,886,250.40 after a seven-day trial. Docs. 224 & 229. Following entry of judgment, CNH renewed its motion for judgment as a matter of law, Doc. 238, moved for a new trial, Doc. 239, and moved to reconsider judgment, Doc. 240. For the following reasons, those motions are denied.
I
A
Each motion has a different standard that governs resolution. The following describes each applicable standard.
1. Under Fed. R. Civ. P. 50(a)(1), a court may issue a judgment as a matter of law when "a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." "Judgment as a matter of law is only appropriate 'if the evidence points but one way and is susceptible to no reasonable inferences' which may support the opposing party's position.'" Strickland v. United Parcel Serv., Inc., 555 F.3d 1224, 1228 (10th Cir. 2009) (quoting Riske v. King Soopers, 366 F.3d 1085, 1088-89 (10th Cir. 2004)). If a court does not grant the party's Rule 50(a) motion, that party "may file a renewed motion for judgment as a matter of law" post-trial and include an alternate motion for a new trial under Rule 59. Fed. R. Civ. P. 50(b). When reviewing a renewed motion, a court views the record in the light most favorable to the nonmoving party and does not "weigh the evidence, pass on the credibility of the witnesses, or substitute [its] conclusions for that of the jury." Jensen v. W. Jordan City, 968 F.3d 1187, 1202 (10th Cir. 2020). Judgment as a matter of law post-trial is an extraordinary remedy, granted only when a court is "certain the evidence conclusively favors one party." Bill Barrett Corp. v. YMC Royalty Co., 918 F.3d 760, 766 (10th Cir. 2019).
In moving for renewed judgment as a matter of law under Rule 50(b), a party "can only reassert the same grounds for judgment as a matter of law that [it] first asserted in [its] pre-deliberation Rule 50(a) motion." Mountain Dudes v. Split Rock Holdings, Inc., 946 F.3d 1122, 1131 (10th Cir. 2019). While the "same grounds" standard does not require "technical precision," Perez v. El Tequila, LLC, 847 F.3d 1247, 1256 (10th Cir. 2017), it must be clear that a Rule 50(a) motion gave the opposing party an opportunity to respond to the argument before the case was submitted to a jury, Mountain Dudes, 946 F.3d at 1133. There is one exception to this rule: A district court may consider the new grounds where the opposing party does not object to new grounds included in a Rule 50(b) motion, and those new grounds relate to the sufficiency of the evidence. See Therrien v. Target Corp., 617 F.3d 1242, 1250 (10th Cir. 2010).
2. A court may "grant a new trial on all or some of the issues ... after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed. R. Civ. P. 59(a)(1)(A). Trial courts have broad discretion in deciding whether to grant a new trial. McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984). But that discretion is not unlimited: a new trial is warranted only where "errors [at trial] created prejudice and affected a party's substantial rights." Osterhout v. Bd. of Cnty. Comm'rs of LeFlore Cnty., 10 F.4th 978, 988 (10th Cir. 2021) (citing Fed. R. Civ. P. 61; Henning v. Union Pac. R. Co., 530 F.3d 1206, 1217 (10th Cir. 2008)). The party seeking the new trial bears the burden of showing harmful error. Nosewicz v. Janosko, 857 Fed. App'x 465, 468 (10th Cir. 2021); see also United States v. Quintanilla, 193 F.3d 1139, 1146 (10th Cir. 1999) (motions for a new trial are disfavored). When reviewing a motion for a new trial, a court draws all inferences in the light most favorable to the non-movant. Burke v. Regalado, 935 F.3d 960, 991 (10th Cir. 2019).
3. Fed. R. Civ. P. 59(e) permits a party to request reconsideration of a final judgment. A court may grant a Rule 59(e) motion when it "has misapprehended the facts, a party's position, or the controlling law." Nelson v. City of Albuquerque, 921 F.3d 925, 929 (10th Cir. 2019) (quoting Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000)). Rule 59(e) is not an appropriate vehicle for revisiting issues already considered or arguing matters "that could have been raised in prior briefing." Id. But Rule 59(e) is an appropriate vehicle to request a reduction in the value of judgment. See Est. of Sisk v. Manzanares, 270 F. Supp. 2d 1265, 1275 (D. Kan. 2003).
Typically, a jury determines the value of a judgment. Bennett v. Longacre, 774 F.2d 1024, 1028 (10th Cir. 1985). Its determination stands unless the amount is so egregious and shocking that it suggests "passion, prejudice, corruption, or other improper cause invaded the trial." Osterhout, 10 F.4th at 996. In such a case, a new trial is appropriate if passion and prejudice
are found to have invaded both the finding of liability and the amount of the award. Id. A court's other option, remittitur, is appropriate when the error affected only the damages amount. Id.
B
Familiarity with the factual background of this dispute is presumed. See generally Doc. 115 at 2-4. In summary, Miller and his father operate a dairy farm in Kansas. Doc. 94 at ¶ 2.a.6. In October 2018, Miller was operating the farm's used New Holland T7.270 Autocommand tractor, which CNH manufactured, to pull a seed drill while planting wheat. Id. at ¶ 2.a.7-8, 12. While the tractor was moving, Miller got up from the driver's seat and stepped off the tractor to inspect what he believed to be a piece of metal on the ground. Id. at 4. After Miller stepped onto the ground, the seed drill being pulled by the tractor hit him in the back, knocked him to the ground, and eventually ran him over. Id. at 4-5. He suffered serious, life-threatening injuries.
All references to the parties' briefs are to the page numbers assigned by CM/ECF.
CNH orally moved for judgment as a matter of law at the close of Miller's presentation of the evidence and again before the jury was instructed. CNH's oral motion "adopted much of what was laid out" in its motion for summary judgment. Doc. 251 at 2; see Docs. 95 & 96. CNH argued in that oral motion that Miller could not satisfy the elements of his claim based on the evidence presented. Doc. 251 at 3-6. This argument comprises three points: that CNH had no duty to warn Miller because the danger of exiting a moving tractor was open and obvious, that Miller failed to prove the alleged defective warnings and alarms were the cause of his accident, and that Miller was 50% or more at fault for this accident. Id. at 3-5; see also Docs. 202-203 (addressing the arguments made in open court).
Both motions were denied. Docs. 207 & 251. The jury returned a unanimous verdict, finding that CNH was 60% at fault for Miller's injuries and finding that Miller's damages totaled $6,477,084. Doc. 223; Doc. 224. Following entry of judgment, CNH filed three post-trial motions.
CNH requests oral argument on each of its three motions because "[t]he 15-page limit set by local rule prevents [it] from adequately addressing all necessary issues." Doc. 238 at 1 n.1; Doc. 239 at 1 n.2; Doc. 256 at 1 n. 1. Those requests are denied because the parties' written submissions adequately explain their positions. See D. Kan. Rule 7.2.
In its renewed motion for judgment as a matter of law, CNH presents three main arguments. Doc. 238. CNH argues that Miller failed to prove the elements of his claim, id. at 3-10, that Miller's expert, Wogalter, should have been precluded from testifying, id. at 10-13, and that the jury's damages award was not supported by the evidence. Id. at 13-15.
In the alternative, CNH moves for a new trial. Doc. 239. That relief is justified, CNH contends, because of misconduct by Miller's counsel, including improperly appealing to sympathy, id. at 3-5, and implying that the absence of certain evidence should be held against CNH, id. at 5-8. CNH also asserts that it was error to allow Miller to present evidence and testimony regarding dismissed design and manufacturing defect claims, id. at 9-10, and that the jury instructions compounded this error by referencing Kansas's modified comparative fault rule and failing to instruct on superseding cause. Id. at 10-13.
Finally, CNH seeks to alter or amend the judgment. Doc. 240. First, CNH contends
that the non-economic damages cap set forth in K.S.A. § 60-19a02 should be applied to reduce Miller's damages from $4,500,000 to $325,000. Id. at 3-7. And second, the jury's award of $500,000 for loss of consortium should be reduced both to comply with the amount sought in the Pretrial Order and because the sum demonstrates that it was influenced by sympathy. Id. at 8-10.
II
CNH has failed to justify upsetting the jury verdict in any respect. As a result, all its motions, Docs. 238, 239, and 240, are denied.
A
CNH moves for judgment as a matter of law. Doc. 238. None of the reasons put forward—individually or collectively—warrant relief. Consequently, that motion, Doc. 238, is denied.
1
CNH avers that Miller failed to prove all required elements of his failure to warn claim. Doc. 238 at 3 (citing Am. Fam. Mut. Ins. Co. v. Techtronic Indus. N. Am. Inc., 2014 WL 2040158 at 8 (D. Kan. May 16, 2014)). Specifically, they argue that CNH did not have a duty to warn users not to exit a moving tractor, but that the warning was nevertheless provided, and that Miller's own actions were the cause of his injury because he knowingly exited a moving tractor despite recognizing that such behavior was dangerous. See Doc. 238 at 1-10. These contentions have been rejected on summary judgment and by the jury following the trial. See Doc. 115 at 13-15; Doc. 251. They fail here, too.
a. First, CNH reasserts it had no duty to warn. Miller was a sophisticated tractor operator, it says, to whom the danger of exiting a moving tractor was open and obvious. Doc. 238 at 4. And Miller knew the electronic park brake (EPB), like any parking brake, is not designed to stop a moving tractor. Id. at 4-5.
Under Kansas law, a manufacturer has a duty to warn of all potential dangers which it knew to exist, or in the exercise of reasonable care should have known to exist. Wooderson v. Ortho Pharm. Corp., 235 Kan. 387, 681 P.2d 1038, 1057 (1984); Burton v. R.J. Reynolds Tobacco Co., 397 F.3d 906, 917 (10th Cir. 2005). K.S.A. § 60-3305(a)-(c) provides exceptions to the general duty to warn. Specifically, manufacturers are not liable for failing to warn of risks that are apparent to ordinary users or dangers actually known by the user. Hiner v. Deere & Co., 340 F.3d 1190, 1194 (10th Cir. 2003); Butler v. Daimler Trucks N. Am., LLC, 74 F.4th 1131, 1150 (10th Cir. 2023); Kan. Stat. Ann. § 60-3305(a)-(c). At trial, the jury was instructed to this effect. Doc. 216 at 11.
CNH's argument fails because it mischaracterizes Miller's claim. He has not asserted that CNH failed to warn of an obvious danger. Rather, Miller argued that CNH's instructions and warnings—both written and audible signals—misled him into thinking that the tractor would stop when the seat was empty. Doc. 115 at 14. At trial, Miller testified that he believed as much. Doc. 245 at 12, 16, 17, 128. Several witnesses testified in support of and against the reasonableness of Miller's beliefs. Based on the unanimous verdict, the jury believed Miller's version. Overturning that considered conclusion would be improper. See Hinds v. Gen. Motors Corp., 988 F.2d 1039, 1045 (10th Cir. 1993) (affirming denial of a directed verdict where the jury could reasonably believe that the manufacturer's product was unreasonably dangerous and caused plaintiff's injuries);
see also Richter v. Limax Int'l, Inc., 45 F.3d 1464, 1470 (10th Cir. 1995) (in the context of products liability "[a] judgment as a matter of law rendered after a verdict has been entered is appropriate only when reasonable minds could not possibly differ as to an issue's necessary outcome").
b. CNH also reasserts that Miller failed to establish that its alleged failure to warn caused his injuries. Doc. 238 at 5-6; see also Doc. 115 at 16-18 (denying summary judgment as to this argument). It argues that Miller was required to present expert testimony on the issue of causation, and that Miller's expert, Wogalter, offered testimony that was "completely devoid of any opinion" that CNH's inadequate warnings caused the incident. Id. at 6.
When a plaintiff establishes that a product's warning was inadequate to prevent his or her injury, Kansas law presumes the warning caused the injury and the defendant bears the burden to rebut it. Burton v. R.J. Reynolds Tobacco Co., 397 F.3d 906, 918 (10th Cir. 2005) (citing Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 681 P.2d 1038, 1057-58 (1984)). Thus, a defendant is entitled to a directed verdict only if a jury could not reasonably disregard the defendant's evidence rebutting causation. See id. Kansas law simply does not require expert causation testimony when a warning is inadequate. Contra Doc. 238 at 5-6.
CNH did put on rebuttal evidence as to causation, Doc. 238 at 6, and Miller admitted he understood the manual's warning to engage the EPB before leaving the seat, Doc. 245 at 119-20. Yet Miller also presented evidence undermining CNH's points, testifying that CNH's warnings and audible signals confused him and led him to believe that the tractor would come to a stop when the seat was empty, which is why he got off the tractor. Doc. 244 at 57. Wogalter explained, from a human factors standpoint, why the tractor's warning regime was likely to have confused Miller. Doc. 246 at 57-58. The resulting question was who to believe. Presumably the jury accepted Miller's argument that the tractor's warnings—despite CNH's evidence— gave Miller a false sense of what to expect. That another jury might have reached a different conclusion from the evidence does not warrant judgment as a matter of law for CNH. See Burton, 397 F.3d at 918 (affirming the rejection of a directed verdict when the jury could weigh conflicting evidence in favor of the plaintiff's argument that the warning was inadequate).
2
CNH's next reason for judgment as a matter of law largely duplicates its prior motion to exclude the opinions of Miller's expert, Michael Wogalter. Doc. 238 at 10 (incorporating by reference arguments previously made in Doc. 98). In its original motion, CNH argued that Wogalter was not qualified as an expert, and that his opinions were unreliable, irrelevant, conclusory, and unhelpful. Doc. 98 at 17-27. Those arguments were considered and rejected. Doc. 115 at 5-12. At trial, CNH objected to Wogalter's opinions, reraising concerns by referencing its summary judgment arguments, and expressly stating that Wogalter's opinions did not opine on the cause of the accident. See Doc. 251.
CNH again complains that "Wogalter never drew any connection between the allegedly defective instructions and warnings and the cause of Plaintiff's accident," something it contends is "fatal to Plaintiff's claims." Doc. 238 at 13 & n.8. But that is not a fair characterization of Wogalter's opinion. And, in any event, Kansas law does not require an expert to expressly state that the defective warnings caused Plaintiff's injuries. Supra II.A.1. CNH also criticizes Wogalter for allegedly selective reading, having no prior experience on tractors, disregarding unfavorable facts, and reaching a conclusion of operator confusion even though Miller acknowledged hearing certain warnings and testified that an operator should not exit a moving tractor. Doc. 238 at 10-13. Each of these points or criticisms was explored in direct and/or cross-examination of Wogalter. And during those examinations, Wogalter explained why each of these criticisms was irrelevant to his conclusion. These points, particularly Wogalter's lack of firsthand experience, go to his credibility and do not provide basis for excluding his testimony. The jury, given its verdict, believed Wogalter's explanation was credible despite the factors CNH points out. See Smith v. Ingersoll-Rand Co., 214 F.3d 1235, 1244 (10th Cir. 2000) (affirming that expert testimony was admissible because the individuals were "amply qualified" in their fields, so lack of firsthand knowledge of the machine only affected the weight of the testimony). Another jury may not have been so persuaded. But that possibility does not compel judgment as a matter of law. See Bill Barrett Corp. v. YMC Royalty Co., 918 F.3d 760, 766 (10th Cir. 2019) (noting that judgment as a matter of law is appropriate only when "reasonable men could not arrive at a contrary verdict").
3
CNH's final point is that there was no evidence that Miller will experience future pain and suffering, lamenting that the absence of any evidence to support an award of $1 million for future pain and suffering is attributable to either confusion and/or sympathy. Doc. 238 at 13-15. That argument fails procedurally and substantively.
First, this is an argument that has not been properly preserved. A party cannot present new grounds for why it should prevail on a Rule 50(b) motion. Mountain Dudes v. Split Rock Holdings, Inc., 946 F.3d 1122, 1131 (10th Cir. 2019). Despite that rule, CNH fails to establish that it ever argued there was insufficient evidence to conclude Miller will experience future pain and suffering in its Rule 50(a) motion for judgment as a matter of law. Doc. 253 at 4.
CNH argues that its pretrial arguments were sufficiently broad to encompass this specific argument. Doc. 257 at 4. They were not. Arguments in pre-trial motions can obviate a failure to make those arguments at trial or in a Rule 50(a) motion but only when the matter was adequately presented to the trial court, the motion was of a type that could be finally decided before trial, and there was a definitive ruling. See Pandit v. Am. Honda Motor Co., 82 F.3d 376, 380 (10th Cir. 1996); see also Bond v. Bd. of Cnty. Commissioners of Muskogee Cnty., Oklahoma, No. 20-7067, 2023 WL 3589081, at *6 (10th Cir. May 23, 2023). CNH made several pre-trial motions. Docs. 95, 139-152. Only one related to evidence of Miller's damages: a motion seeking to exclude evidence of future medical expense on the basis that all of Miller's claims for future economic damages had been dismissed. Doc. 142. But that motion is insufficient to preserve this particular challenge issue because it failed to allege Miller's evidence was legally insufficient to justify a future pain and suffering award and, in any event, was denied without prejudice and subject to further factual development at trial. Doc. 172. See Perkins v. Silver Mountain Sports Club & Spa, LLC, 557 F.3d 1141, n.4 (10th Cir. 2009) (a reserved ruling does not preserve the argument); Gardetto v. Mason, 201 F.3d 447, at *4-6 (10th Cir. 1999) (a motion in limine based on relevance and prejudicial effect are of a type best ruled on at trial). Second, even if the argument had been preserved, the objections are substantively without merit. Under Kansas law, the appropriate amount of an award for pain and suffering is left to a jury, which is "expected to act reasonably, intelligently, and in harmony with the evidence." Kerns By & Through Kerns v. G.A.C., Inc., 255 Kan. 264, 875 P.2d 949, 960 (1994). Because such evidence is not mathematical in nature, a reviewing court shall overturn an award an award for pain and suffering "only if' the result is shocking. Id.
CNH has not established the jury was far afield. Miller presented evidence from which the jury could conclude that he will experience future pain and suffering in the future. He testified that he continued to worry about "arthritis," "lung problems," and scar tissue, an increased risk of hernias, including an active one, and that his mental health had changed such that he has "lost some of the ability to feel deeply." See Doc. 245 at 79-81. In short, Miller testified—without any contrary evidence or testimony from CNH—that he will experience pain, suffering, and mental anguish in the future from his injuries. That is sufficient under Kansas law. McKissick v. Frye, 255 Kan. 566, 876 P.2d 1371, 1390 (1994) (holding that award of future pain and suffering was not excessive in light of plaintiff's uncontested testimony of ongoing pain).
CNH also argues that Miller failed to establish the reasonableness of his medical expenses that he incurred. Doc. 238 at 14. The reasonable value of medical treatment is a question of fact for the jury and the jury was so instructed. See Martinez v. Milburn Enterprises, Inc., 290 Kan. 572, 233 P.3d 205, 221 (2010); Doc. 216 at 19 (based on Pattern Inst. Kan. Civil 171.02). Under Martinez, there is no legal requirement that someone testify that the value of medical bills is reasonable. Rather, Kansas law presumes that the amount charged is reasonable until the defendant challenges the amount—and even then, the jury ultimately decides. See Martinez, 233 P.3d at 222; Contra Doc. 238 at 14. Based on the evidence it heard, the jury decided $1,477,084 was the reasonable value of Miller's medical expenses. Doc. 224. CNH's arguments do not create a reason to deviate from the jury's decision.
CNH finally argues that judgment as a matter of law is proper because it was not able to present evidence relating to the portion of Miller's medical bills he did not owe (i.e., write-offs, discounts, adjustments) due to his participation in a "unique 'cost sharing' system." Doc. 238 at 15 (citing Martinez, 233 P.3d at 222). CNH contends that without this information, the jury could not properly determine the reasonable costs of Miller's medical expenses. Id. at 14. But that is not accurate. The jury was instructed that, in determining the reasonable value of medical expenses, it could consider "the amount actually billed by the health care provider" as well as "write-offs or other acknowledgments that something less than the amount charged has satisfied, or will satisfy, the amount billed." Doc. 216 at 19; Pattern Inst. Kan. Civil 171.02. Consistent with Martinez, CNH was precluded from referencing the paying party because such references would constitute inadmissible evidence of a collateral source. Doc. 242 at 37. Yet CNH introduced other evidence to inform the jury's determination of Miller's reasonable costs, including information about discounting that had already occurred on certain bills submitted to Miller and questioning Miller about whether bills were subject to future negotiation to assist the jury in determining the reasonable value of his medical expenses. See generally
Doc. 245. It has failed to identify any evidence that was either admitted in contravention or precluded from offering evidence permitted by Martinez. As a result, this claim, once again, fails.
B
CNH also seeks a new trial based on three primary arguments. Doc. 239. First, it argues that Miller's counsel improperly influenced the jury's verdict with reptile theory and golden rule statements permitted over CNH's objections. Id. at 3-11. Second, CNH asserts that Miller was allowed to confuse the jury with evidence relating to the dismissed design defect claim. Id. Third, it emphasizes that incorrect jury instructions were errors of law that merit a new trial. Id. at 11-13. Those arguments are unconvincing.
1
Before trial, CNH sought to exclude any statement or evidence referring to golden rule or reptile theory arguments. Doc. 150 at 2. It argued that golden rule arguments, which ask the jury to put itself in a party's shoes, violate Fed. R. Evid. 403 because they ask the jury to reach a verdict based on passion. Id. Similarly, CNH argued that reptile theory arguments, which appeal to jurors' primitive instincts to pursue safety and survival, also violate Rule 403. Id. at 2-3. That pre-trial motion was denied without prejudice due to the difficulty of predicting which arguments would be made at trial and how they would arise in context. Doc. 172; Doc. 242 at 106-107; accord Kieffaber v. Ethicon, Inc., No. CV 20-1177-KHV, 2021 WL 10863405, at *1 (D. Kan. Mar. 25, 2021) (denying a motion in limine request to exclude reptile theory arguments on the basis that such requests are best addressed at trial), Kimzey v. Diversified Servs., Inc., No. 15-1369-JTM, 2017 WL 131614, at *3 (D. Kan. Jan. 13, 2017) (declining to "exclude an entire category of [golden rule] statements in advance" in favor of "rul[ing] on such objections as they arise at trial in the context of specific statements"); see also United States v. Fonseca, 744 F.3d 674, 682-83 (10th Cir. 2014) (explaining that a party need not continue to raise objections at trial to preserve its arguments when a motion in limine is unequivocally denied). CNH occasionally objected at trial to golden rule and reptile theory arguments, and it now renews its objections. Doc. 239 at 3-6. CNH also renews its argument that Miller's counsel inappropriately encouraged the jury to draw adverse inferences from evidence not in the record. Id. at 6-8.
CNH points to a variety of objections and conduct that it claims justify a new trial. For instance, CNH objected to Miller's opening statement that "[h]ad the tractor not've hit that hedgerow, it would've gone on until it hit something else, be it a school, a house, a highway, or until it ran out of fuel." Doc. 243 at 13. At trial, CNH's objection that the statement was "argumentative" was overruled. Id. According to CNH, this comment "incite[d] the jury to make CNH pay for purportedly designing a runaway tractor" and "implied that the jury should make a decision out of fear for the community." Doc. 239 at 3. CNH also objected three times to "improper questioning" of Frantz, asserting that Miller's counsel was improperly reading interrogatories into the record that implicated design defect claims, thereby improperly invoking golden rulestyle arguments. Doc. 250 at 7-13. The objections were sustained. Miller's counsel persisted, and Miller's counsel was admonished sua sponte to heed the ruling. Doc. 250 at 13.
CNH also points to Miller's closing arguments as an instance that improperly
invoked the reptile theory and created an adverse inference by telling the jury that they should consider why there's no evidence showing how CNH, "a big company," vetted its manual. Doc. 250 at 42-43, 68, 73. CNH objected and requested a curative instruction for the statements that asked the jury to speculate as to why they did not have certain documents. Doc. 250 at 43-45. That request was denied.
Even if Miller's counsel's infrequent comments over several days of trial were improper, they were addressed and resolved as they occurred. But even if something differently could have been done, that matters not because they were not so pervasive throughout the seven-day trial as to merit a new one. Burke v. Regalado, 935 F.3d 960, 1032 (10th Cir. 2019) (finding that eleven separate improprieties did not collectively create pervasive error); King v. PA Consulting Grp., Inc., 485 F.3d 577, 591 (10th Cir. 2007) (holding that an improper challenge to evidence in a closing argument when the evidence went unchallenged at trial would only warrant a new trial if the improper remark was the focus of the closing argument and prejudiced the opposing party); see also Whittenburg v. Werner Enters., 561 F.3d 1122, 1131 (10th Cir. 2009) ("[A] stray improper remark in closing is no basis for upsetting a trial and requiring the parties and district court to redo their ordeal.").
Moreover, the jury instructions appropriately offset any prejudice. The jury was instructed before opening statements and closing arguments, Doc. 191 at 3, and in the jury instructions, Doc. 216 at 24, 34, that the lawyers' statements, questions, and arguments did not constitute evidence in the case. The jury was also instructed that it was required to "base [its] verdict solely upon the evidence, without sympathy or bias for or against any party," and that they were not permitted "to be governed by sympathy, prejudice, or public opinion." Doc. 216 at 3. The jury was further instructed that it shall "decide th[e] case solely on the evidence presented during the trial." Id. at 36. It is assumed that the jury follows its instructions. Osterhout v. Bd. of Cnty. Comm'rs of LeFlore Cnty., 10 F.4th 978, 992 (10th Cir. 2021) (citing Gardner ex rel. Gardner v. Chrysler Corp., 89 F.3d 729, 737 (10th Cir. 1996)). Because Miller's statements and questioning were not overtly improper, the instructions offset any incidental prejudice and weigh against a new trial. See Bird v. W. Valley City, 831 F. App'x 881, 892 (10th Cir. 2020) (finding that the district court's "general instructions, combined with the brevity of the arguably improper remarks, helped mitigate any prejudicial effect").
2
CNH also makes three arguments that individually and collectively assert evidence of the design defect claim were improperly admitted and it was error not to provide CNH's proposed curative instruction because it "resulted in substantial prejudice to CNH." Doc. 239 at 10. For the reasons discussed at trial and as set forth below, those arguments are rejected.
CNH first contends that Miller "repeatedly raised issues, presented evidence, and elicited testimony related only to" his dismissed design defect claim. Doc. 239 at 9. This, CNH says, misled the jury, causing it to perceive a design defect claim that did not exist. But, as noted at trial, the only claim submitted to the jury was a warning claim. Miller's questioning did not repeatedly present evidence related specifically to his dismissed design defect claim. Contra Doc. 239 at 9. As noted at trial, the line between defects and warnings is critical as a legal matter but challenging to demarcate by way of explanation to a lay juror. Doc. 245 at 110. For example, testimony
about other products was allowed at trial to prove the reasonableness of Miller's belief that the tractor's EPB would automatically engage when he left the seat while the tractor was in motion. See Doc. 115 at 14; Doc. 242 at 90. That testimony supported Miller's warning claim because it contextualized his understanding of the written and auditory signals and were directly responsive to CNH's argument that Miller's conduct was unreasonable. And CNH was able to cross-examine Miller about his beliefs and expectations, the reasonableness of them, and the differences in other products' usage and behavior. Doc. 245 at 181. No substantial prejudice resulted from this exchange. See McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553-56, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984) (distinguishing fair from perfect trials).
Along similar lines, CNH contends that Miller was allowed to question its witness, Brian Hartman, about design-related issues. Doc. 239 at 10. That issue was not preserved because CNH did not object at trial to two of the questions it now takes issue with. Doc. 248 at 48-49, 53-54; Osterhout v. Bd. of Cnty. Commissioners of LeFlore Cnty., 10 F.4th 978, 991 (10th Cir. 2021) (recognizing that failure to object at trial waives relying on question as a basis to obtain a new trial). Even if it had been preserved, the line of questioning was permissible. The questions cast doubt on Hartman's credibility because he did not contribute to the manual and warnings for the tractor at issue in the case. And use of the word "design," see Doc. 239 at 10, does not mean that "the jury was presented with a design defect claim," contra id. It is not surprising that testimony for a warning claim may sometimes sound like a design claim because from a legal perspective they share some similar features. See Delaney v. Deere & Co., 268 Kan. 769, 999 P.2d 930, 942 (2000) (discussing, in another context, how design and warning defect claims intersect). But, as repeatedly noted and as shown in the instructions and verdict form, only a warning claim was submitted to the jury.
Finally, rejecting CNH's proposed curative jury instruction, see Doc. 206 at 6, was not error. The jury was instructed that "Miller br[ought] three claims based exclusively on the adequacy of the warnings and instructions." Doc. 216 at 4 (emphasis added). In addition, CNH repeatedly informed the jury that Miller was only claiming a warning defect. See, e.g., Doc. 243 at 19. CNH further elicited testimony from Miller that his warnings claim "was the only that [he] h[ad] remaining." Doc. 245 at 111. And it clarified with Wogalter that he was not opining on design or manufacturing issues. Doc. 246 at 45. Then, in closing, CNH stated, "And, remember, this case started off with design defect claims that were then dismissed ... as the judge advised, it's a warning and instruction case only." Doc. 250 at 51. On the whole, any improper evidence of design or manufacturing defects was well constrained by the jury instructions and CNH's frequent and repeated statements emphasizing the contours of Miller's claims.
3
Turning to jury instructions, CNH makes two claims of error. First, it contends the jury was not and should have been provided with a superseding cause instruction. Doc. 239 at 11. Second, it contends the jury was improperly instructed as to the legal effect of its verdict. Id. at 12-13. Each argument fails.
The superseding cause instruction was not appropriate under the circumstances. As the "Notes on Use" for the Pattern Instructions in Kansas state, that instruction "should seldom be given" and it
was not in this case because it did "not appear necessary given that the existing instructions as a whole sufficiently describe[d] Kansas substantive law." Doc. 214 at 32. Simply put: "While superseding causes are still recognized in extraordinary cases, in adopting comparative fault, Kansas courts have moved from 'all or nothing concepts' to having juries apportioning fault among the parties." Doc. 115 at 18 (citing Kudlacik v. Johnny's Shawnee, Inc., 309 Kan. 788, 440 P.3d 576, 581 (2019), and Hale v. Brown, 287 Kan. 320, 197 P.3d 438, 440 (2008)).
Second, CNH contends that "the Kansas state jury instruction on comparative fault" advised the jury as to the legal effect of its verdict in violation of federal policy. Doc. 239 at 12. CNH made this same argument prior to trial. Doc. 179 at 14; Doc. 195 at 7-8. But the "substance of a jury instruction in a diversity case is a matter of state law," Elliot v. Turner Const. Co., 381 F.3d 995, 1004 (10th Cir. 2004), and Kansas law requires this instruction, Nail v. Dr.'s Bldg., Inc., 238 Kan. 65, 708 P.2d 186, 189 (1985); see also Hawkins v. Sw. Kan. Co-op Serv., 58 Kan. App.2d 38, 464 P.3d 14, 27 (2020), rev'd in part on other grounds, 313 Kan. 100, 484 P.3d 236 (2021). The jury was also properly instructed that, in the verdict form, it should "[p]roceed to the remaining questions only if [it] found the fault of Mr. Miller to be less than 50% of the total fault." Doc. 216 at 43; See Pattern Inst. Kan. Civil 181.04 Comment (citing Wisker v. Hart, 244 Kan. 36, 766 P.2d 168 (1988)).
Affiliated FM Ins. Co. v. Neosho Const. Co. is not to the contrary. Contra Doc. 239 at 12 (citing 192 F.R.D. 662, 673 (D. Kan. 2000)). In Affiliated, the district court was asked whether a new trial was appropriate after the court failed to instruct the jury on Kansas's comparative fault rules. Id. at 672. It concluded that no such instruction was mandatory; not that state law on comparative fault was wholly incompatible with Rule 49. Id. at 675. And no other court has followed Affiliated's reasoning in declining to instruct the jury as to Kansas law. In fact, the Tenth Circuit has found no error where a district court drafted the verdict form using Colorado's comparative negligence law, which is the same as Kansas's. Weaver v. Blake, 454 F.3d 1087, 1100 (10th Cir. 2006).
Finally, CNH points to the jury's award of $500,000 for loss of services. The award is for $200,000 more than Miller sought—evidence, in CNH's view, that the jury "improperly took fault into consideration when determining damages," Doc. 239 at 12-13, and that the verdict is "plainly excessive." Doc. 239 at 13 (citing Goico v. Boeing Co., 358 F. Supp. 2d 1028, 1030 (D. Kan. 2005)). But where the sum of the award is the sole basis for suggesting it was influenced by improper passion or prejudice, a Kansas court should uphold the award unless, given the facts of the case, the award is shocking. Jackson v. City of Kansas City, 263 Kan. 143, 947 P.2d 31, 39 (1997); see also Spahr v. Ferber Resorts, LLC, 419 F. App'x 796, 805 (10th Cir. 2011) (explaining that a court sitting in diversity reviews a jury award applying state substantive law). Even though $500,000 in consortium damages is higher than the amount requested, it is not conscience-shocking given the testimony from Ms. Miller concerning the support of her husband in his recovery and how the accident affected their dreams of becoming
In a diversity case such as this one, state law governs whether an award of damages is excessive or inadequate. Hill v. J.B. Hunt Transp., Inc., 815 F.3d 651, 667 (10th Cir. 2016) (quoting Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996)).
foster parents. And the overall jury award is not shocking considering the evidence that was presented. The jury awarded $6,477,084 for noneconomic loss, past medical expenses, and consortium damages, an amount less than the pretrial order requested. See Doc. 94 at ¶ 5.
The jury's award is not evidence that passion or prejudice "invaded the trial." Prager v. Campbell Cnty. Mem'l Hosp., 731 F.3d 1046, 1062 (10th Cir. 2013). Miller did not improperly reference CNH's wealth nor did his counsel suggest to the jury that it should punish CNH. Contra id. at 239. Instead, Miller presented evidence that he incurred more than $1.4 million in medical expenses and endured difficult conditions on the day of the accident, including testimony about having a wheat drill being drug over his body, realizing that he was incapacitated, going in and out of consciousness while he lay in a field, bleeding and cold, for six hours before realizing that those driving vehicles in the dark field looking for him may actually run him over because he was unable to move. Doc. 245 at 43. Likewise, Miller explained that "he lost a year of his life" due to his treatment and rehabilitation, Doc. 255 at 13, and that he was still affected, Doc. 245 at 80-81. He and his wife also testified to the toll that his injuries and rehabilitation took on their family, including their efforts to become foster parents. Id. at 72, 79; Doc. 244 at 14. Nonetheless, the jury here found Miller 40% at fault, so his award was reduced to $3,886,250.40. Such an amount does not suggest passion or prejudice invaded the damages award, nor is it a shocking amount. See Bayes v. Biomet, Inc., 55 F.4th 643, 651 (8th Cir. 2022) (affirming $20 million award in a products liability case). CNH has not shown an error warranting new trial.
C
CNH seeks to amend the judgment in two ways. Doc. 240. First, it says, the jury's award of $4.5 million for total non-economic damages must be reduced to $325,000 in accordance with the State's statutory damages cap. Doc. 240 at 3-7 (citing Kan. Stat. Ann. § 60-19a02). Second, the loss of consortium award should be reduced to reflect the amount sought in the pretrial order and to account for improper influence or sympathy. Id. at 8-9. Neither argument warrants relief.
1
CNH contends that the non-economic damages cap set forth in K.S.A. § 60-19a02 applies to reduce the jury's award of noneconomic damages here. Doc. 240 at 3. That is incorrect. A federal court sitting in diversity has an obligation to apply the substantive law of the state in which it sits, as enacted by the state legislature and interpreted by the state's highest court. Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). "It is undisputed that a state's statutory limit on damages is substantive law that federal courts sitting in diversity must apply." Racher v. Westlake Nursing Home Ltd. P'ship, 871 F.3d 1152, 1162 (10th Cir. 2017). But the Kansas Supreme Court held that the damage cap CNH wishes to be applied, as set forth in K.S.A. § 60-19a02, is unconstitutional under the Kansas constitution. Hilburn v. Enerpipe Ltd., 309 Kan. 1127, 442 P.3d 509 (2019). As a result, there is no substantive limit on damage claims under Kansas tort claims.
CNH seeks to avoid this argument by suggesting that the damage cap statute does not violate the Seventh Amendment. See Doc. 240 at 4 (citing Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 463 n.9, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996)). Even assuming that
to be so, that is irrelevant: the Kansas Supreme Court has held that the state's substantive tort law (which applies in this case) may not be limited by K.S.A. § 60-19a02. CNH's position fails because an unrepealed substantive state statute that would not be applied by the state's supreme court cannot be applied by a federal court sitting in diversity. See, e.g., Graves v. Am. Fam. Mut. Ins. Co., 686 F. App'x 536 (10th Cir. 2017) (a federal court sitting in diversity is bound to apply state substantive law as the state supreme court would); Clark v. State Farm Mut. Auto. Ins. Co., 433 F.3d 703, 709 (10th Cir. 2005) (same); Johnston v. I-Flow Corp., No. 09 C 3567, 2010 WL 11713179, at *2 (N.D. Ill. Aug. 26, 2010) (explaining that a federal court sitting in diversity was bound to ignore the part of the state's repose statute that the state supreme court declared violated the state's constitution).
2
CNH also contends that the jury's award for loss of consortium must be reduced to conform to the Pretrial Order and "to correct improper influence by sympathy." Doc. 240 at 8. But the award for loss of consortium already conforms to the Pretrial Order and CNH has not shown that the award was influenced by sympathy.
As with statutory damage caps, a federal court sitting in diversity applies state law to determine "the propriety of an award of damages." Hill v. J.B. Hunt Transp., Inc., 815 F.3d 651, 667 (10th Cir. 2016) (quotation omitted); Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 437, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) ("[W]hen [state] substantive law governs a claim for relief, [state] law and decisions guide the allowable damages."). Kansas law requires a two-step process. A court first reduces for comparative fault, then decides whether the damages awarded exceed those sought in the pretrial order. Cerretti v. Flint Hills Rural Elec. Coop. Ass'n, 251 Kan. 347, 837 P.2d 330, 341 (1992); Foster v. Wal-Mart Stores, Inc., No. 99-1242, 2000 WL 1117326, at *1-2 (D. Kan. July 11, 2000) (reducing the plaintiff's award first by the percentage of fault and then to conform to the pretrial limit).
The jury awarded Miller $500,000 on the loss of consortium claim. Doc. 224 at 2. Consistent with Kansas law, the jury's award was then reduced by the jury-assigned percentage of fault and judgment was entered. Doc. 229 at 1. As reduced, the judgment included $300,000 in consortium damages, which is the amount sought in the Pretrial Order. Doc. 94 at 16; Doc. 216 at 4. CNH would first reduce the jury's award to the pretrial order amount and then reduce the award by the plaintiff's comparative fault. See Doc. 240 at 8. That request is denied because it contravenes Kansas law.
CNH's second argument for adjustment, remittitur, "is appropriate only when the jury award is so excessive" that it is shocking and raises "an irresistible inference that passion, prejudice, corruption or another improper cause invaded the trial." Fresquez v. BNSF Ry., 52 F.4th 1280, 1315 (10th Cir. 2022); see also McKissick v. Frye, 255 Kan. 566, 876 P.2d 1371, 1388-89 (1994). CNH has not satisfied that high bar. See supra Section II. B.3.
III
For the reasons set forth above, CNH's motions for judgment as a matter of law, Doc. 238, new trial, Doc. 239, and to alter or amend the judgment, Doc. 240, are DENIED.
It is so ordered.