Smith, et al v. Starr Indem & L

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-60581
Summary Calendar

ROSE MARY SMITH; RODNEY G. SMITH,

Plaintiffs - Appellants

v.

STARR INDEMNITY & LIABILITY COMPANY,

Defendant - Appellee

Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:17-CV-164

Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
Plaintiffs Rose Mary Smith and Rodney Smith appeal a jury’s verdict on
their insurance claim against Defendant Starr Indemnity & Liability Co. After
Mrs. Smith was struck by an uninsured driver, she filed a claim with her
insurer, Starr. Starr did not dispute liability under the policy but instead
disputed the extent of Mrs. Smith’s injuries caused by the accident.

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
March 24, 2020

Lyle W. Cayce
Clerk
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Plaintiffs sued Starr in Mississippi state court, and Starr timely
removed. The case proceeded to a three-day jury trial. Plaintiffs sought
$5,000,000 in damages for Mrs. Smith’s physical injuries and medical bills,
economic losses from her business, and Mr. Smith’s loss of consortium. The
jury awarded $37,000 in damages—$12,000 for Mrs. Smith’s past medical bills
and $25,000 for her noneconomic damages. Plaintiffs appealed to this court,
arguing that the district court (1) committed plain error in instructing the jury,
(2) abused its discretion by failing to exclude the testimony of Starr’s medical
expert, and (3) abused its discretion by failing to grant Plaintiff’s motion for a
new trial because the jury verdict was against the great weight of the evidence.
We address each claim in turn.
We begin with Plaintiffs’ challenge to the district court’s jury
instructions. Because Plaintiffs did not object in the district court to the jury
instructions now challenged on appeal, this Court reviews only for plain error.
Guerra v. N.E. Indep. Sch. Dist., 496 F.3d 415, 417 (5th Cir. 2007). To establish
plain error, the complaining party must show that: (1) the district court erred,
(2) the error was clear or obvious, (3) the error affected the party’s substantial
rights, and (4) the error, if left uncorrected, would seriously affect the fairness
integrity, or public reputation of judicial proceedings. In re Deepwater Horizon,
824 F.3d 571, 583 (5th Cir. 2016). When reviewing a jury instruction, this
court must “consider the jury charge as a whole” and reverse only if the entire
charge leaves this court “with the substantial and ineradicable doubt whether
the jury has been properly guided in its deliberations.” Septimus v. University
of Houston, 399 F.3d 601, 607 (5th Cir. 2005) (internal quotations omitted).
Plaintiffs argue that the district court committed three errors when
instructing the jury. First, Plaintiffs challenge two instances where the
district court, following the Mississippi Model Jury Instructions, charged the
jury to confine its “verdict to reasonable compensation for injuries actually
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sustained, if any.” See Miss. Prac. Model Jury Instr. Civil §§ 10:4 & 10:5 (2d
ed. 2019). Plaintiffs argue that the phrase “if any” misled the jury, allowing
them to find that Mrs. Smith did not suffer any injuries despite the parties’
stipulations that she sustained “personal injuries” from the accident. See
McCary v. Caperton, 601 So.2d 866, 870 (Miss. 1992) (holding that the trial
court erred by using “if any” language in the jury instructions when the jury’s
task was to “determine the extent of the injuries and loss, not whether any
existed.”), overruled on other grounds by Robinson Prop. Grp., L.P. v. Mitchell,
7 So.3d 240 (Miss. 2009). But even if including “if any” in the instruction was
erroneous, Plaintiffs fail to demonstrate that the error substantially affected
their rights. In re Deepwater Horizon, 824 F.3d at 583. After all, the jury
awarded $37,000 in damages, concluding that Plaintiff suffered at least some
injuries from the accident. Therefore, the district court did not plainly err by
using “if any” language in the jury instructions.
Second, despite not asking for such an instruction, Plaintiffs insist the
district court plainly erred by not instructing the jury on aggravation of a pre-
existing medical condition. But neither party presented evidence nor argued
to the jury that Mrs. Smith’s injuries were the result of a purported
aggravation. Thus, failing to include this instruction was not erroneous, much
less plainly erroneous.
Third, Plaintiffs challenge the district court’s jury charge on proximate
cause, which instructed the jury that the “accident must be a substantial factor
in producing plaintiff’s injury,” arguing that Mississippi only uses the
“substantial factor” test for causes of action involving multiple tortfeasors. But
Plaintiffs fail to point to any Mississippi case holding that instructing the jury
to use the “substantial factor” test to determine proximate cause is erroneous
when there is only one tortfeasor. The district court did not err by using this
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test in its instruction. And when considering the jury instructions as a whole,
Plaintiffs fail to show that the district court plainly erred.
Next, Plaintiffs argue that the district court erred by not excluding the
testimony of Starr’s medical expert, Dr. David Gandy, who testified that Mrs.
Smith’s continuing medical issues were caused by unrelated progressive
degeneration, not the accident. Plaintiffs argue Dr. Gandy did not reliably
apply his medical expertise to the facts of the case as required by Federal Rule
of Evidence 702(d). Questions relating to the bases and sources of an expert’s
opinions affecting the weight to be assigned that opinion rather than its
admissibility should be left for the jury’s consideration. See Viterbo v. Dow
Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987). However, this general rule
“yields when ‘the source upon which an expert’s opinion relies is of such little
weight . . . that [the] testimony would not actually assist the jury in arriving
at an intelligent and sound verdict.’” Slaughter v. S. Tale Co., 919 F.2d 304,
306 (5th Cir. 1990) (quoting Viterbo, 826 F.2d at 422).
Here, Dr. Gandy’s testimony was not based on such little weight that it
would fail to assist the jury. Instead, he based his causation testimony
regarding Mrs. Smith’s injuries on medical treatises and medical studies, a
review of Mrs. Smith’s pre- and post-accident medical records, a medical
history obtained from Mrs. Smith, and a physical examination of Mrs. Smith.
After hearing Dr. Gandy’s opinion, the jury was free to consider Dr. Gandy’s
sources and make its own credibility determination. See Viterbo, 826 F.2d at
422. The district court did not abuse its discretion by including Dr. Gandy’s
testimony.
Finally, Plaintiffs argue that they are entitled to a new trial because the
jury’s verdict was against the overwhelming weight of the evidence. “The
decision to grant a new trial is within the sound discretion of the trial judge.”
Cobb v. Rowan Cos., Inc., 919 F.2d 1089, 1090 (5th Cir. 1991). In evaluating
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whether the district court abused that discretion, this court views the evidence
in the light most favorable to the verdict. Id. This court may only overturn
the verdict if it “is against the great weight of the evidence.” Seibert v. Jackson
County, Miss., 851 F.3d 430, 439 (5th Cir. 2017). “In other words, the movant
must show ‘an absolute absence of evidence to support the jury’s verdict.’” Id.
(quoting Whitehead v. Food Max of Miss., Inc., 163 F.3d 265, 269 (5th Cir.
1998)).
Plaintiffs fail to meet this burden. Starr provided causation evidence in
the form of testimony from Dr. Gandy. And, although Plaintiffs provided
witnesses to testify regarding the extent of the damages Mrs. Smith incurred
from the accident, their credibility is ultimately left up to the jury. See Dotson
v. Clark Equip. Co., 783 F.2d 586, 588 (5th Cir. 1986). Plaintiffs failed to show
an absence of evidence supporting the jury’s verdict and thus have failed to
demonstrate that the district court abused its discretion.
We conclude that the district court did not commit reversible error. The
district court’s judgment is affirmed.
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