Summary Calendar DONNA ISBELL v. Wal-Mart Stores, Inc.

*Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 92-9531
Summary Calendar
_____________________
DONNA ISBELL,
Plaintiff-Appellant,
v.
WAL-MART STORES, INC.,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
91 CV 4577 M5
_________________________________________________________________
June 29, 1993
Before KING, DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
Donna Isbell sued Wal-Mart Stores, Inc. for injuries
sustained in a Wal-Mart store. Wal-Mart stipulated liability,
and the issue of damages was tried to a jury. Isbell was awarded
damages of $26,000. Disappointed, she filed a motion for a new
trial, which was denied. Isbell appeals the denial of that
motion. We affirm.

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1 Mrs. Isbell was initially joined by her husband, who filed
suit for loss of consortium. Mr. Isbell voluntarily dismissed
his entire claim. Furthermore, Mrs. Isbell voluntarily dropped
her additional claim for past and future wage loss.
2
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 9, 1991, while shopping at a Wal-Mart store in
Slidell, Louisiana, appellant Donna Isbell was injured when a
styrofoam sign suspended from the store's ceiling fell and struck
her from behind. The extent of injuries sustained remains
disputed. Isbell consulted an internist and an orthopedic
surgeon after the incident about alleged injuries to her head,
neck, shoulder, arm, and hand. One of those physicians, the
orthopedic surgeon, recommended surgery to fuse herniated
cervical discs at an estimated cost of $20,000. At the request
of Wal-Mart, Isbell was further examined by two additional
doctors, a neurologist and an orthopedic surgeon. Both deemed
surgery unnecessary. Isbell herself indicated at trial that she
did not intend to undergo surgery, for fear of possible adverse
consequences. Between the date of the accident and the time of
trial, Isbell incurred approximately $6,000 in non-surgical
medical expenses.
Because Wal-Mart stipulated its liability for the sign's
falling, the proceeding focused entirely on the extent of
damages.1 On October 22, 1992, the jury, with a magistrate judge
presiding, awarded Isbell $26,000 in a general verdict. Isbell
moved for a partial new trial, limited to the issue of damages.

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She appeals the denial of that motion.
II. DISCUSSION
A. The district court's refusal to submit a special verdict
Isbell claims that the district court erred by rejecting her
proposed jury verdict form which contained a list, for the jury
to fill in, of various types of damages that she alleges she
sustained, such as pain and suffering and mental anguish. The
court instead submitted the following, two-pronged general
interrogatory:
1. Do you find from a preponderance of the evidence
that the plaintiff, Donna Isbell, sustained injuries as
a result of the incident in the Wal-Mart Store on March
9, 1991? . . . .
2. What amount, in dollars, do you find would fairly
and adequately compensate the plaintiff, Donna Isbell,
for her injuries?
Isbell argues that as a general matter, without the ability to
itemize, juries are prone to award only quantifiable medical
expenses and fail to award general damages (e.g., for pain and
suffering). Isbell cites no authority for this novel claim. She
essentially seeks a new trial on the grounds that the district
court's refusal to request a special verdict rendered the jury
award inadequate.
It is well established that the district court has
discretion whether to use either a general or a special verdict.
We review only for gross abuse of discretion. See Miley v.
Oppenheimer & Company, 637 F.2d 318, 334 (5th Cir. 1981) (quoting

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5A Moore's Federal Practice § 49.03(1)). In this case the
magistrate judge explained her belief that special verdicts are
"more likely to cause reversible error" than general verdicts.
Whatever may be the truth of that proposition as a general
matter, we do not believe that the district court abused its
discretion in refusing to submit a special verdict form here.
The magistrate judge's instructions to the jury included an
itemized list of categories of damages. The magistrate judge
also specifically encouraged Isbell's counsel to suggest itemized
elements of damages to the jury in his closing argument, in order
to compensate for any alleged disadvantage created by a general
verdict. Under the circumstances, the jury could not have failed
to understand the items of damages that it should consider.
Isbell's request that we overturn the magistrate judge's refusal
to grant a new trial on this ground is therefore denied.
B. The alleged awarding of only special medical damages
Isbell further argues that the jury awarded only special
medical damages and did not award any amount of money for general
damages, thus entitling her to a new trial. Isbell first
observes as a matter of simple mathematics that "$20,000 [the
amount estimated for possible future surgery] plus $6,000 [the
amount of past medical expenses incurred] equals $26,000."
Isbell then concludes that the jury's refusal to grant general
damages is in direct conflict with its finding that she was
injured.

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We do not believe that the only reasonable construction of
the evidence and verdict compels the conclusion that the jury
failed to award general damages. Only one of the numerous
doctors whose testimony was considered at trial recommended
surgery, which he alone estimated would cost $20,000. His
conclusion was strongly disputed by two specialists, both of whom
concluded that Isbell did not need surgery. Moreover, and
perhaps most convincingly, Isbell herself indicated at trial that
she did not intend to undergo surgery. It is therefore entirely
conceivable that the jury concluded that Isbell would in fact not
have surgery, and so calculated $20,000 as an appropriate figure
for general damages. We agree with the district court's
conclusion when it denied Isbell's motion for a new trial:
The Court is of the opinion that the jury's verdict
represents a thorough, fair, and accurate assessment of
the evidence. Although there was some testimony
regarding the approximate cost of a certain surgical
procedure, the greater weight of the evidence was to
the effect that plaintiff was not in need of and did
not intend to undergo surgery in the future.
We have a duty to search for an interpretation of the jury
verdict that renders it consistent and reasonable. See Gonzales
v. Missouri Pacific Railroad Co., 511 F.2d 629, 633 (5th Cir.
1975) ("The Seventh Amendment mandates this Court to search for a
view of the case that makes the jury's answers consistent."). In
this case, the district court's interpretation is clearly
supported by the record. We accordingly reject Isbell's view
that a new trial is in order because the jury inconsistently
determined that Isbell had been injured but then refused to award

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general damages.
C. The district court's response to a jury inquiry
Finally, Isbell argues that the district court
significantly erred in its response to a jury inquiry. The jury
interrupted its deliberations to ask the court whether Isbell had
received medical treatment after July, 1992. The court responded
that such information must be found in evidence presented at
trial. Isbell argues that the trial record did not include
evidence of a September, 1992 visit to her doctor because the
court's pre-trial order required expert reports to be exchanged
sixty days before the pre-trial conference, which was held on
October 5, 1992. She therefore contends that she should have
been allowed to supplement the record at the time of the jury
inquiry and that the court's refusal to respond gave the jury the
mistaken impression that she had not seen a doctor after July.
We find the magistrate judge's refusal to supplement the
record appropriate. In the month between the September visit to
a doctor and the close of trial, Isbell never raised issue of the
admissibility of evidence regarding the visit. If the jury
assumed that Isbell had not returned to a doctor, it was not
because the court refused to supplement the evidence at the time
of the inquiry but rather because Isbell failed during the trial
to even attempt to submit evidence of her visit. The district
court indicated its possible willingness to have admitted the
evidence:

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It's never been my understanding that the cutoff dates
worked to exclude relevant facts from the date of the
cutoff period or the cutoff date to the date of trial.
And if there was something that was a necessity needed
to be placed before the jury, or counsel wanted it
placed before the jury, that should have been
discussed. It was not discussed.
In sum, when Isbell failed to offer evidence of a later visit at
trial, she effectively waived the right to object to the jury's
ignorance of that visit. We therefore conclude that the
magistrate judge's response to the jury's inquiry does not
provide grounds for a new trial.
III. CONCLUSION
For the foregoing reasons we AFFIRM the district court's
denial of Isbell's motion for a new trial.

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