APPEAL FROM THE DISTRICT COURT OF THE VIRGIN ISLANDS Division of St. Croix (D.C. Civil No. 76-0539)
Before Rosenn, Maris and Hunter, Circuit Judges.
This appeal raises several issues, including novel and important questions as to whether a comparative negligence statute may be applied and, if so, to what extent, in an action for personal injuries brought under twin theories of strict products liability and common law principles of negligence. The jury returned a verdict in favor of the plaintiff, Norwilton Murray, in the sum of two million dollars against the manufacturer, Beloit Power Systems, Inc. (Beloit). The jury, in response to special interrogatories, found that plaintiff's negligence was a proximate cause of his injuries and that he was at fault to the extent of five percent. The trial judge reduced the verdict accordingly and judgment was thereupon entered for the plaintiff. Beloit's motion for a new trial was denied and it appealed. Murray has also cross-appealed contending that the trial court erred in applying contributory negligence as a defense to a products liability action grounded on section 402A of the Restatement (Second) of Torts and that it should not have reduced his verdict because of his own contributory negligence. We find no error on Beloit's appeal and we reject Murray's cross-appeal. Accordingly, we affirm the judgment of the district court.
At the time of the accident, Norwilton Murray, a thirty-four year old experienced instrument fitter, was employed by Litwin Corporation, an installer of equipment. On July 21, 1974, Murray and a co-worker were installing an electrical control panel at the Hess Oil Refinery in the Virgin Islands. The panel was built by Beloit to Litwin's specifications and Litwin's engineer approved it at Beloit's factory before it was shipped. Litwin intended to install the panel on a platform over an open space approximately ten feet above the concrete floor of the refinery. There was evidence, however, that Beloit had not been so informed. At Litwin's request the unit had been purposely left open at the bottom so that conduits from below could be attached to it. The control panel was removed from its shipping crate and a cherry-picker hoisted it by its metal lifting eyes onto the platform. In order to protect the integrity of the delicate instrumentation inside the panel, Beloit had attached two iron cross-members to the open bottom of the unit to stabilize it during shipping. Murray's task was to align the holes in the base of the control panel with pre-drilled holes in the platform and secure the unit with mounting bolts. Because the holes were not perfectly aligned when the cherry-picker deposited the unit on the foundation, Murray chose to use a crow-bar to rock the approximately one and a half ton unit into alignment.
The accident occurred when Murray put his weight on one of the iron cross-members by leaning over the open space at the bottom of the unit to bolt it to the platform. The cross-member gave way and Murray fell approximately ten feet to the concrete floor incurring severe injuries to his spine. It was determined at trial that the cross-member gave way because it had been only temporarily or "tack-welded" to the unit, instead of being secured by a permanent or "butt-weld." Murray's spinal injuries led to two operations for a herniated disc. The most severe injury, however, was to the group of spinal nerves called the Cauda equina, which affect sexual and urinary functions. As a consequence of this nerve damage, Murray is incontinent and sexually dysfunctional. The prognosis for improvement in his condition is poor, and it is possible that his injuries may ultimately cause him to be confined to a wheelchair and may reduce his life-span. He has not returned to work since the accident.
Murray brought a products liability action against Beloit alleging alternative theories of strict liability under Restatement (Second) of Torts § 402A and common law negligence. He contended that the control panel was defective because the cross-member had been only tack-welded to the unit. Beloit defended with expert evidence to prove that Murray's method of installation was highly dangerous and Beloit argued that Murray assumed the risk of injury posed by his manner of installation. The district court, holding that the Virgin Islands comparative negligence statute, 5 V.I.C. § 1451 (1978)*fn1 was applicable to a strict products liability action, instructed the jury that if they found Beloit liable and Murray negligent, to reduce Murray's award by the percentage attributable to his fault.*fn2
The jury returned a verdict finding Beloit liable under both the strict products liability and the negligence counts. The jury also found Murray's negligence in installing the unit to constitute five percent fault for the injuries. The jury awarded Murray $2,000,000 in damages. This sum, when reduced by the five percent fault attributable to Murray and the reduction to present value of his future earnings, amounted to $1,747,000. Although noting that the verdict was very high, the district court denied defendant's motion for a new trial.
On appeal to this court, Beloit essentially raises three*fn3 questions: First, it was error for plaintiff's counsel to specifically request the jury to return a verdict, which it apparently honored, for $2,000,000. Second, the district court erred in not granting a new trial on the ground that the verdict was excessive and third, in not granting a new trial because the jury fixed Murray's fault at only five percent, even though the jury found that his own negligence was a proximate cause of his injuries.
Beloit first contends that it was improper for the trial court to permit Murray's counsel to plead for a specific sum of damages in his closing remarks to the jury.*fn4 Beloit maintains that counsel's plea for a $2,000,000 verdict was highly improper and incited the jury to award a high verdict not in accordance with the evidence. The jury returned a verdict in the precise sum urged by counsel. Beloit relies primarily on Joyce v. Smith, 269 Pa. 439, 442-43, 112 A. 549 (1921), which held that the amount of damages claimed is not to be determined by an estimate of counsel "but by the jury from the evidence before them, and any suggestion to the jury of an arbitrary amount is highly improper. . . ." Although a few courts do take the view that a reference by counsel to a specific sum of damages in a personal injury action*fn5 is improper, the majority do not. See Philadelphia & R. Ry. Co. v. Skerman, 247 F. 269 (2d Cir. 1917); Caley v. Manicke, 24 Ill.2d 390, 182 N.E.2d 206 (1962); Duguay v. Gelinas, 104 N.H. 182, 182 A.2d 451 (1962). See cases collected at Annot. 14 A.L.R.3d 541, 545 (1967). Some courts apparently do not pass upon the propriety of reference to a specific amount, but require a showing of prejudice before reversal is warranted. See Symons v. Great Northern Ry. Co., 208 Minn. 240, 293 N.W. 303 (1940).
We need not decide the issue, however, because we find no objection in the record by the defendant to opposing counsel's reference to a specific Ad damnum. Counsel's failure to object precludes him from seeking a new trial on the grounds of the impropriety of opposing counsel's closing remarks. Gilmore v. Strescon Industries, Inc., 66 F.R.D. 146, 152 (E.D.Pa.), Aff'd, 521 F.2d 1398 (3d Cir. 1975). We decline to review the matter as plain error.
We turn next to Beloit's contention that the verdict was excessive. The final adjusted figure of $1,747,000 awarded Murray appears to be the highest damage award in a Virgin Islands personal injury action. Judge Young, the trial judge, however, declined to order a remittitur or new trial on the issue of damages. He noted that although he personally would not have awarded as high a verdict, "(i)t is not enough that the Court, as the trier of fact, would have awarded a lesser amount of damages. Rather, the damages assessed by the jury must be so unreasonable as to offend the conscience of the Court. See, also, Tann v. Service Distributors, Inc., 56 F.R.D. 593 (E.D.Pa.1972), Aff'd, 481 F.2d 1399 (3d Cir. 1973)." Judge Young declined to set aside the jury's verdict and concluded that there was substantial evidence in the record upon which it could have based its award.
In exercising our power of review over the damage award in this case, we are mindful that the scope of our review is extremely narrow. In Edynak v. Atlantic Shipping, Inc. CIE. Chambon, 562 F.2d 215, 225-26 (3d Cir. 1977), Cert. denied, 434 U.S. 1034, 98 S. Ct. 767, 54 L. Ed. 2d 781 (1978) we stated:
The question of the excessiveness of a verdict is primarily a matter to be addressed to the sound discretion of the district judge, and we may not disturb his determination unless a "manifest abuse of discretion" be shown. . . . Stated another way, we may reverse the determination of the district judge and grant a new trial only if the verdict is "so grossly excessive as to shock the judicial conscience." (Citations omitted.)
We cannot perceive an abuse of discretion merely because we would have found the damages to be considerably less than those awarded and would have set them aside had we been the district court. Id. at 226; Dagnello v. Long Island Rail Road, 289 F.2d 797, 806 (2d Cir. 1961). The trial judge is in the best position to evaluate the evidence and assess whether the jury's verdict is rationally based. Edynak, supra, 562 F.2d at 226-27 Citing Taylor v. Washington Terminal Co., 133 U.S.App.D.C. 110, 409 F.2d 145, 148, Cert. denied, 396 U.S. 835, 90 S. Ct. 93, 24 L. Ed. 2d 85 (1969). Nevertheless, there is a limit beyond which an appellate court must reverse an award as grossly excessive. The United States Supreme Court has cautioned that we must "make a detailed appraisal of the evidence bearing on damages" in deciding whether a verdict is excessive. Grunenthal v. Long Island Rail Road Co., 393 U.S. 156, 159, 89 S. Ct. 331, 333, 21 L. Ed. 2d 309 (1968). We must therefore turn to the record to see if the district court was correct in concluding that the jury's award was not the product of irrational behavior.
The jury's initial award of $2,000,000 represented $1,700,000 for "lost income (past), mental anguish, past and future, loss of enjoyment of life, past and future," and $300,000 for impaired future earning capacity. The plaintiff did not prove any specific amount of either past or anticipated medical expenses. The lost future earnings award was reduced to a present value of $153,612. The verdict was then adjusted by the five percent attributed to Murray's fault, making the final figure $1,747,000. Thus, the jury's award almost totally represents an award for mental suffering and loss of enjoyment of life.*fn6 However, as we have noted, "evidence of pain and suffering is particularly ill-suited to review upon only a written record." Edynak, supra, 562 F.2d at 227 n.16. According to this record, Murray sustained severe and debilitating injuries. Direct examination of Dr. Hiram Mercado, a neurologist and Murray's chief medical expert revealed that Murray sustained two severe injuries to his spine.*fn7 The fall resulted in a herniated disc and damage to the Cauda equina, which controls urinary, fecal, and sexual functions. Murray was initially hospitalized for seventeen days following the accident during which time he was placed in bedrest with leg traction. During his hospitalization Murray experienced problems with micturition (passing of water). He was released from the hospital but was unable to walk properly because of severe pain. He subsequently underwent two spinal operations to remove a herniated disc. Murray, however, continued to experience back pain.
Murray's most damaging injury was to his Cauda equina. The damage to these nerves resulted in a neurogenic bladder, which causes spontaneous urine elimination. Murray is forced to wear a genital clamp to control his bladder. The bladder condition also poses the threat of recurrent infections, which might eventually endanger the kidneys. Dr. Sidney Weinberg, a urologist treating Murray, testified that the bladder condition has worsened and that there is a reasonable possibility that the kidneys may become fatally damaged. There is also evidence that Murray's spinal injuries have resulted in sexual dysfunction. Murray's prostate gland also might have to be removed to protect his kidneys. This would not cure, and might worsen his incontinence and render him sexually impotent. Murray is taking drugs which help to reduce the frequency of urination but the overall prognosis is poor. Murray testified that pain from sitting forces him to lie down for two or three hours at a time. He claimed severe psychic damages; he is now divorced and he no longer has a healthy relationship with his children and friends.
On cross-examination, Dr. Mercado admitted that some of Murray's treating physicians had noticed improvement in his condition and that he could resume some light work. Murray admitted that he had fathered a child since the accident, but complained that he was almost completely dysfunctional. There also was evidence that Murray was able to drive a car because he was involved in an automobile accident after the fall.
Faced with this record, we cannot unequivocably conclude that the jury's damage award was irrational or so excessive as to shock our conscience. The jury was in the best position to evaluate the credibility of the medical evidence and the record reveals a sufficient basis for its ultimate award. Murray will continue to suffer the debilitating consequences of his injuries which perforce will limit the quality of his life-style and probably the extent of his life-span. Although we believe that the jury's award was very high and that more severely injured plaintiffs ...