Parra v. Interstate Express ( 2022 )

Case: 20-11230 Document: 00516199003 Page: 1 Date Filed: 02/11/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
February 11, 2022
No. 20-11230 Lyle W. Cayce
Clerk
Alfonso Parra; Maria Parra,
Plaintiffs—Appellees,
versus
Interstate Express, Incorporated,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CV-268
Before Davis, Willett, and Oldham, Circuit Judges.
Per Curiam:*
Defendant, Interstate Express, Incorporated (“Interstate”), moved
for a new trial and remittitur after a jury rendered a verdict in favor of
Plaintiffs in this personal injury action. Interstate appeals the judgment and
denial of its motion, arguing that the district court abused its discretion and
prejudiced Interstate’s right to a fair trial when it excluded the testimony of
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 5th Circuit Rule 47.5.4.
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one of its experts after technical difficulties arose during the expert’s live
video testimony. Interstate further asserts that the jury’s verdict was against
the great weight and preponderance of the evidence, excessive, and
manifestly unjust because the Plaintiffs’ only expert was not qualified to
testify and his opinions were unreliable, and because Plaintiffs’ counsel made
improper remarks during closing arguments that prejudiced the jury against
it. As discussed below, Interstate’s arguments are without merit. Therefore,
we AFFIRM the district court’s judgment.
I. BACKGROUND
In February 2016, Roy Lester Douglas, an Interstate employee, was
driving a tractor owned by Interstate and hauling a trailer owned by All Ways
Transport, Inc. (“All Ways”). While pulling out of a truck stop onto U.S.
Highway 81, Douglas failed to yield the right of way and struck the pickup
truck being driven by Plaintiff, Alfonso Parra (“Alfonso”). The collision
caused the pickup truck to flip over, and Alfonso sustained severe injuries as
a result.
Alfonso and his wife, Maria Parra (“Maria”), who was not in the
vehicle at the time of the accident, filed suit against Interstate, All Ways, and
Douglas 1 in federal district court based on diversity jurisdiction. Interstate
stipulated to Douglas’s negligence in causing the accident. It also stipulated
that the total amount of incurred and paid medical bills which Alfonso could
recover was $27,475.51. However, Interstate disputed “whether any brain
injury was sustained.” The case proceeded to a jury trial in August 2020, a
few months after the beginning of the COVID-19 pandemic.
1
Douglas is now deceased from causes unrelated to the accident.
2
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At the trial, Alfonso testified regarding the accident and his resulting
injuries. His wife Maria and their two daughters also testified regarding the
changes in Alfonso after the accident. Plaintiffs’ expert, Dr. Fulbright, a
clinical neuropsychologist, testified regarding his opinion that Alfonso
suffered a brain injury as a result of the accident. He explained that another
neuropsychologist, Dr. Jones, had examined Alfonso in January 2019, but
that Dr. Jones had since died. The parties stipulated that Dr. Jones’s and Dr.
Fulbright’s expert reports would be admitted into evidence.
For its case, Interstate called Dr. Bob Gant, a clinical
neuropsychologist, who appeared via videoconference. After initially having
some difficulty with video equipment, Interstate’s counsel was able to
complete the direct examination of Dr. Gant. When Plaintiffs’ counsel
attempted to start her cross-examination of Dr. Gant, however, the video
equipment failed, so the district court adjourned trial early for the day to let
the parties tend to the equipment. The next morning, Plaintiffs’ counsel
began cross-examining Dr. Gant, but the video equipment again failed. The
district court requested that the next witness be called.
Interstate then called Dr. Daragh Heitzman, a neurologist. Dr.
Heitzman testified that based on his examination of Alfonso and his review
of the medical evidence, he did not believe that Alfonso had “a continuing
brain injury.” He testified that his opinion regarding the neuropsychological
testing of Alfonso “rested largely on a conversation [he] had with Dr. Gant.”
Dr. Heitzman further testified that based on his conversation with Dr. Gant,
and the objective evidence that he obtained with his medical testing, he did
“not find any abnormality with reasonable medical probability.”
After Dr. Heitzman finished testifying, Defendants requested to
resume the cross-examination of Dr. Gant. As described in further detail
below, after conferring with counsel, the district court denied the request and
3
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instructed the jury not to consider any of Dr. Gant’s testimony. Over
Plaintiffs’ objection, the district court did allow Dr. Gant’s preadmitted
expert report to remain in evidence.
The jury returned a verdict in favor of Plaintiffs, awarding Alfonso
$77,400 in economic damages and $429,000 in noneconomic damages, and
Maria $20,000 in economic damages and $175,000 in noneconomic
damages. The district court rendered final judgment in favor of Plaintiffs for
a total of $541,375.51 to Alfonso and $195,000 to Maria. Thereafter,
Interstate filed a motion for new trial and remittitur. The district court denied
the motion. Interstate filed a timely notice of appeal.
II. DISCUSSION
On appeal, Interstate reasserts the arguments contained in its motion
for new trial and remittitur. It argues that the district court abused its
discretion and prejudiced Interstate’s right to a fair trial when it excluded the
testimony of Dr. Gant after technical difficulties arose during his live video
testimony. Interstate further asserts that the jury’s verdict was against the
great weight and preponderance of the evidence, excessive, and manifestly
unjust because the Plaintiffs’ only expert, Dr. Fulbright, was not qualified to
testify and his opinions were unreliable. Finally, Interstate argues that
Plaintiffs’ counsel made improper remarks during closing arguments that
prejudiced the jury against it.
Under Rule 59(a), the district court may grant a new trial “after a jury
trial, for any reason for which a new trial has heretofore been granted in an
action at law in federal court.” 2 Although the rule does not specify the
circumstances when a new trial is warranted, this court has noted that they
2
Fed. R. Civ. P. 59(a)(1)(A).
4
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include “if the district court finds the verdict is against the weight of the
evidence, the damages awarded are excessive, the trial was unfair, or
prejudicial error was committed in its course.” 3 “We will reverse the trial
court’s denial of a motion for new trial only when there is a clear showing of
an abuse of discretion.” 4
A.
Interstate argues that a new trial should have been granted because it
was deprived of its right to a fair trial. Specifically, the district court
committed prejudicial error when it excluded Dr. Gant’s expert testimony
without cause. Interstate further argues that the district court’s ruling was
not harmless because it impaired Interstate’s ability to present evidence on
critical questions about causation and damages.
This court reviews the exclusion of expert testimony, and evidentiary
rulings in general, for abuse of discretion. 5 “A district court abuses its
discretion when its ruling is based on an erroneous view of the law or a clearly
erroneous assessment of the evidence.” 6 Furthermore, even if the district
court abused its discretion, the party seeking a new trial has the burden of
showing that the error was harmful and prejudicial to its case. 7
1.
On the second day of trial, Interstate’s expert, Dr. Gant, testified live
by videoconference. After initially having difficulty hearing counsel’s
3
Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir. 1985) (citations
omitted).
4
Foradori v. Harris, 523 F.3d 477, 497 (5th Cir. 2008) (citations omitted).
5
Williams v. Manitowoc Cranes, L.L.C., 898 F.3d 607, 623, 626 (5th Cir. 2018).
6
Id. at 626 (internal quotation marks and citation omitted).
7
Id. at 627.
5
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questions, counsel was able to complete his direct examination by moving
closer to the computer and kneeling down to ask the questions. When
Plaintiffs’ counsel began to cross-examine Dr. Gant, however, the
videoconference equipment again started to fail. At that point, the district
court decided to adjourn the trial for the day and stated that the cross-
examination of Dr. Gant would be completed the next morning. The court
stated that it was “disappointed in [the] electronics and video testimony”
and wanted to make sure that the trial continued “without a hitch” so that
the jurors could get the “best view and the best witness” from the remote
viewings. The trial court also stated: “This is not anybody’s fault, this is just
the world that we live in and we have to try to adapt.”
After the jurors left the courtroom, the district court expressed its
frustration with the technical difficulties encountered during Dr. Gant’s
testimony. The court instructed counsel to “spend tonight . . . before
everyone goes home and before the courthouse is locked” tending to the
equipment to ensure that there would be no “glitches” with the video
testimony the next day.
Unfortunately, the next day, after Plaintiffs’ counsel started her cross-
examination of Dr. Gant, the video conference equipment again began to fail.
At that point, the district court expressed his disapproval of video testimony,
stating that he would “never, ever agree to allow this type of testimony in
trial again.” The parties attempted to get the video testimony back up and
running, and Dr. Gant started to testify again, but then the connection was
lost again. The district court instructed Interstate to call its next witness.
Interstate’s next witness was Dr. Heitzman. When Dr. Heitzman
completed his testimony, Interstate requested that the cross-examination of
Dr. Gant be resumed. At that point, the district court called a conference with
the lawyers out of the presence of the jury. After bringing the jury back in,
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the district court stated to the jurors that although “every effort was made
on behalf of defendant to present Dr. Gant’s testimony, . . . we had too many
issues, and I have to make the finding that you are not to consider any of the
testimony you heard from Dr. Gant, period, either on direct or cross-
examination.” The district court noted, however, that Dr. Gant’s
preadmitted expert report was in the record. The district court lamented that
it was “stuck in an unfortunate situation where I do have to get the case
moving and the technology just did not work.” In response, Plaintiffs’
counsel requested that the court additionally strike Dr. Gant’s expert report,
which request the district court denied. Interstate also objected to not being
able to complete Dr. Gant’s videoconference testimony.
The district court’s reasons for striking the testimony were that the
remote testimony “just [didn’t] work,” “time was of the essence,” and it
needed “to get the members of the public in an out,” while trying to assure
justice is done “in the middle of a pandemic.” The case was “one of the
oldest on his docket, and [it was] not fair for either party to continue the case
any longer.” The district court also asked whether Dr. Gant was in his office
in Dallas and, if so, gave him the opportunity to go to Forth Worth to testify
that afternoon, but Dr. Gant was in Colorado. The district court stated that
it understood the parties’ objections, but that it believed it had no other
choice.
As stated above, “A district court abuses its discretion when its ruling
is based on an erroneous view of the law or a clearly erroneous assessment of
the evidence.” 8 The district court’s decision to strike the testimony of
Dr. Gant could not be based on an erroneous view of the law because there
simply is no law, and no precedent from this court, addressing the situation
8
Id. at 626 (internal quotation marks and citation omitted).
7
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with which the district court was faced. As both parties acknowledge, the
district court did not exclude Dr. Gant’s testimony based on Federal Rule of
Evidence 702, which sets out the factors for the admissibility of expert
testimony, or on Federal Rule of Civil Procedure 37, which authorizes the
district court to impose sanctions on a party under certain circumstances.
Rather, the district court excluded Dr. Gant’s testimony because of recurring
technical problems with the videoconference equipment and his concerns
about getting the jurors “in and out” of the courthouse while “in the middle
of a pandemic.” The district court also felt that continuing the trial under the
circumstances would have been unfair for either party given that it was one
of the court’s “oldest cases.”
As Plaintiffs point out, Federal Rule of Evidence 403 allows the
district court to exclude relevant evidence if its probative value is
substantially outweighed by a danger of, inter alia, unfair prejudice, undue
delay, wasting time, or needlessly presenting cumulative evidence. Federal
Rule of Evidence 611(a) also provides that the district court “should exercise
reasonable control over the mode and order of examining witnesses and
presenting evidence” to “make those procedures effective for determining
the truth” and “avoid wasting time.” Although the district court did not
specifically mention these rules, the district court’s statements on the record
reflect that it considered similar factors in deciding to exclude Dr. Gant’s
testimony.
Moreover, contrary to Interstate contentions, the record reflects that
the district court gave Interstate reasonable allowances to present Dr. Gant’s
testimony. The district court adjourned early on the second day of trial to
allow the parties time to tend to the video equipment to ensure that it would
be back up and running the next day.
8
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Concerns about getting the jurors back home in the middle of
pandemic is not (unsurprisingly) one of the factors listed in any of the Federal
Rules. The record reflects the district court’s efforts in reaching a
compromise that was fair to all parties and the jurors. The district court knew
it might be wasting more time if it allowed Dr. Gant to continue testifying
with the recurrent technical difficulties. At the same time, it tried to minimize
the harm to Interstate’s case by allowing Dr. Gant’s preadmitted expert
report to remain in evidence. As there is no rule or precedent on point, and
the district court’s decision reflected that it considered the interests of the
parties and the jurors in reaching its decision, and made efforts to achieve
fairness for both sides, we cannot say that it abused its discretion.
2.
Even if there was an abuse of discretion, Interstate fails to meet its
burden of showing that the error was harmful and prejudicial to its case. 9
Interstate argues that the district court’s ruling impaired “its ability to
present evidence on critical questions about causation and damages,” but the
record evidence reflects otherwise.
Although the district court struck the live video testimony of
Dr. Gant, the district court ordered that Dr. Gant’s preadmitted expert
report remain in evidence for the jury to consider. Moreover, Interstate’s
other expert, Dr. Heitzman, testified on medical causation, and his expert
report also was preadmitted. He testified that based on his examination of
Alfonso and his review of the medical evidence, he did not believe that
Alfonso had “a continuing brain injury.” He also stated that his opinion
regarding the neuropsychological testing of Alfonso “rested largely on a
conversation [he] had with Dr. Gant.” Dr. Heitzman further testified that
9
Id. at 627.
9
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based on his conversation with Dr. Gant, and the objective evidence that he
obtained with his medical testing, he did “not find any abnormality with
reasonable medical probability.”
Thus, although Dr. Gant’s testimony was excluded, his opinions were
contained not only in his preadmitted expert report (which remained in the
record), but also in the live testimony of Dr. Heitzman. Dr. Heitzman also
testified regarding medical causation and damages to Alfonso’s arm, back,
and neck, as well as his brain. Interstate’s argument that the district court’s
ruling impaired its ability to present evidence on critical questions involving
causation and damages is without merit.
Based on the foregoing, Interstate fails to show that the district court’s
exclusion of Dr. Gant’s live video testimony constituted harmful error.
Therefore, Interstate is not entitled to a new trial on this basis.
B.
Interstate next argues that it is entitled to a new trial because the jury’s
verdict on damages was against the great weight of the evidence, excessive,
and manifestly unjust. Specifically, Interstate argues that there was
insufficient evidence to support the jury’s damages awards because
Plaintiffs’ only expert, Dr. Fulbright, failed to present reliable testimony and
was not a qualified expert. Interstate also argues that counsel’s improper
comments during closing argument were prejudicial to its case.
1.
As Plaintiffs assert, however, Interstate failed to preserve its challenge
to the qualifications and testimony of Dr. Fulbright by not objecting
adequately below.
“[F]or a litigant to preserve an argument for appeal, it must press and
not merely intimate the argument during the proceedings before the district
10
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court.” 10 Interstate acknowledges that its objection to Dr. Fulbright’s
testimony at trial was merely: “Objection, Your Honor. No foundation,
experience, training or education.” Interstate’s objection followed an
interaction between Plaintiffs’ counsel and Dr. Fulbright during his direct
testimony, in which Dr. Fulbright asked counsel, “You want me to talk about
the physical injury – the brain injuries?” Plaintiffs’ counsel responded,
“Let’s talk about – however way you want to take it. Do you want to talk
about his physical injuries first?” Dr. Fulbright responded, “All right,” and
then Interstate asserted its objection, which the district court immediately
overruled.
Dr. Fulbright then proceeded simply to read the physical injuries
“listed in the medical records,” stating that he did not have to have a medical
education to do so. The injuries included a seven-centimeter laceration to
Alfonso’s head, a left shoulder injury, bruising, and high blood pressure as
well as a high pulse rate. Dr. Fulbright’s testimony at that point did not
consist of any opinions, but just a reading of what was contained in the
medical records.
When Dr. Fulbright actually began to discuss his opinions regarding
potential injuries to Alfonso’s brain, Interstate did not object, and it never
objected at any point during the remainder of Dr. Fulbright’s direct
examination. During its cross-examination of Dr. Fulbright regarding his
education and qualifications, Interstate established that Dr. Fulbright was
not a “medical doctor or an osteopathic doctor,” and that as a
neuropsychologist, he was in the subspecialty of “clinical psychology.”
10
Weckesser v. Chicago Bridge and Iron, L.G., 447 F. App’x 526, 530 (5th Cir. 2011)
(per curiam) (unpublished) (internal quotation marks and citation omitted). Unpublished
opinions issued on or after January 1, 1996, are not precedential but may be persuasive.
Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006).
11
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Dr. Fulbright admitted he was not board certified. He also admitted that he
had not reviewed Alfonso’s medical records prior to the accident.
At no time during Dr. Fulbright’s testimony did Interstate lodge an
objection, or move to strike Dr. Fulbright’s testimony, because he was not
qualified to opine on whether Alfonso sustained any brain injury or because
his opinions were unreliable. The first time Interstate argued that
Dr. Fulbright was not qualified and his opinions unreliable was in its motion
for new trial. However, the district court did not address Interstate’s
arguments on these issues.
Although the district court has discretion to consider an issue
presented for the first time in a post-trial brief, when the district court does
not exercise such discretion, the issue is not considered properly raised. 11 In
this case, because Interstate raised its arguments regarding Dr. Fulbright for
the first time in its motion for new trial, but the district court did not consider
those arguments in denying the motion, we conclude that Interstate did not
properly raise its arguments challenging Dr. Fulbright’s testimony below.
“We do not ordinarily consider issues that are forfeited because they
are raised for the first time on appeal.” 12 There are exceptions to this rule,
such as if the issue involves a challenge to the court’s jurisdiction, or “it is a
purely legal matter and failure to consider the issue will result in a miscarriage
of justice.” 13 Interstate’s challenge to Dr. Fulbright’s testimony does not fall
within these exceptions. Therefore, the issue is forfeited, and we do not
consider it.
11
Garriot v. NCsoft Corp., 661 F.3d 243, 248 (5th Cir. 2011).
12
Rollins v. Home Depot USA, Inc., 8 F.4th 393, 398 (5th Cir. 2021).
13
Id. (citations omitted).
12
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2.
Interstate argues that the damages the jury awarded in favor of
Plaintiffs are against the great weight and preponderance of the evidence,
excessive, and manifestly unjust. Interstate asserts that because Dr.
Fulbright’s causation opinion is unreliable, “there simply is no competent
evidence to support the jury’s damages findings.”
“In an action based on state law but tried in federal court by reason of
diversity of citizenship, a district court must apply a new trial or remittitur
standard according to the state’s law controlling jury awards for
excessiveness or inadequacy.” 14 Under Texas law, “review for excessiveness
uses the same standard as any factual sufficiency claim.” 15 “The question
boils down to whether the evidence introduced at trial would allow a
reasonable, fair-minded jury to come to the verdict the actual jury
reached.” 16
As set forth above, Interstate forfeited its challenge to the
admissibility of Dr. Fulbright’s testimony by not properly preserving the
issue for appeal. Because its challenge to the jury’s damages award is based
on its forfeited argument regarding Dr. Fulbright’s testimony, Interstate’s
challenge to the damages award fails.
Furthermore, based on the evidence adduced at trial, the damages
awarded by the jury were not excessive. Alfonso testified when the tractor
trailer collided with his pickup truck, it caused his pickup truck to spin and
roll over. He remembered having to crawl out of a window of the vehicle. He
14
Foradori v. Harris, 523 F.3d 477, 497 (5th Cir. 2008) (citation omitted).
15
Longoria v. Hunter Express, Ltd., 932 F.3d 360, 365 (5th Cir. 2019) (citation
omitted).
16
Id. (citation omitted).
13
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sustained a very painful shoulder separation and head wound. The medical
records indicated that the emergency room doctor diagnosed him with:
“abdominal contusion, chest wall contusion, contusion of left shoulder, head
injury acute without loss of consciousness, left shoulder strain and scalp
laceration.”
After the accident, Alfonso tried physical therapy for a separated
shoulder, but his pain did not subside. Eventually, a specialist operated on his
shoulder. Although the surgery increased his ability to move his shoulder,
Alfonso testified that he still cannot lift his arm all the way above his head.
He also testified that in the days and weeks following the accident, he lacked
concentration and struggled to retain information. Additionally, Alfonso
feels pressure on the top of his head and on his right side; he sometimes feels
like he has an electric shock; and he cannot tolerate noises.
Alfonso’s two daughters 17 testified regarding the changes in Alfonso
after the accident. Laura testified that her father complained of pain in his
shoulder and that he was unable to help around the house like he used to. She
stated that her dad was very patient, but that after the accident, he became
“irritated very easily.” Guadalupe testified that Alfonso used to be very
social and outgoing, but now he prefers to stay home and be alone. She said
her relationship with her father had become distant because of his temper and
lack of patience.
Dr. Fulbright opined that Alfonso suffered a brain injury as a result of
the accident because both he and Dr. Jones observed, through their testing of
Alfonso, that there was a “distinct change in [Alfonso’s] behavior” and
“changes in his cognitive functioning.” Dr. Fulbright believed that the
17
Laura Parra was 21 at the time of trial, and Guadalupe Parra was 26.
14
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nature of the wreck, with the car “spinning and rolling and land[ing] upside
down, was sufficient mechanical force to cause the injury.”
Maria Parra, Alfonso’s wife, testified that since the accident Alfonso’s
demeanor and character “changed a lot.” He used to be “level-headed, very
well centered, easygoing, patient.” Maria testified that Alfonso appeared to
have “entered in some type of depression,” and their relationship was not
the same. She also described instances where Alfonso just did not understand
what they were doing and/or did not remember why they were doing certain
things.
In light of the evidence adduced at trial, we cannot say that the
damages awarded to Alfonso of $77,400 in economic damages and $429,000
in noneconomic damages, and to Maria of $20,000 in economic damages and
$175,000 in noneconomic damages were against the great weight or
preponderance of the evidence, excessive, or manifestly unjust.
3.
Interstate lastly argues that the jury’s award was manifestly unjust
because it was based on “passion or prejudice.” Specifically, Interstate
asserts that Plaintiffs’ counsel improperly commented on the failure of
Interstate’s corporate representative to testify at trial and on the age of the
tortfeasor driver during closing argument. Interstate contends that these
comments prejudiced the jury against it.
As Plaintiffs point out, Interstate failed to object during closing
argument to Plaintiffs’ counsel’s reference to the absence of Interstate’s
corporate representative at trial. “Absent a timely objection, reversal is
generally not warranted based on counsel’s improper statements alone.
Rather, we consider the comments of counsel, the counsel’s trial tactics as a
15
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whole, the evidence presented, and the ultimate verdict.” 18 Furthermore,
“[w]e have found it particularly important whether or not statements made
in closing argument were based on evidence in the record.” 19 We have noted
that “it is a particularly indefensible tactic to use closing arguments to bring
before the jury damaging facts not in evidence and never established.” 20
The age of the tortfeasor driver was in the record, as it was contained
in the Texas Peace Officer’s Crash report which was admitted into evidence
by agreement of both sides. During cross-examination, Interstate’s expert,
Dr. Heitzman, confirmed that the crash report indicated that the driver was
75 years old at the time of the accident. Furthermore, the jury obviously knew
that Interstate’s corporate representative was absent from trial and did not
testify during the trial. Because Plaintiffs’ counsel’s comments during
closing argument involved facts already known by the jury, Interstate’s
argument that the comments prejudiced the jury against it is without merit.
III. CONCLUSION
Based on the foregoing, the district court’s judgment is
AFFIRMED.
18
Alaniz v. Zamora-Quezada, 591 F.3d 761, 778 (5th Cir. 2009) (citation omitted).
19
Id. (citation omitted).
20
Id. (internal quotation marks and citation omitted).
16