Duhon v. Marceaux ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-31409
_______________________
NORMA H. DUHON and TURNEY J. DUHON,
Plaintiffs-Appellants,
versus
LUTHER JAMES MARCEAUX, CALVIN JAMES MARCEAUX, and
COLONIAL COUNTY MUTUAL INSURANCE COMPANY,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana,
Lafayette-Opelousas Division
99-CV-203
_________________________________________________________________
February 25, 2002
Before JONES, WIENER, and PARKER, Circuit Judges.
PER CURIAM:*
Plaintiffs Norma and Turney Duhon appeal from a final
judgment entered for the defendants in this negligence action. The
parties tried the case twice before juries. The first jury
returned a confusing and inconsistent verdict awarding modest
damages to Duhon. Both parties filed motions for a partial new
trial, and the district court vacated the first judgment in its
entirety. In the second trial, the jury found that defendant
*
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opinion should not be published and is not precedent except under the limited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 5TH CIR. R. 47.5.4.
Luther Marceaux was not negligent, and the district court entered
judgment for the defendants. We affirm the judgment and hold that
(1) the district court’s order vacating the judgment after the
first trial was valid; (2) the district court did not abuse its
discretion in vacating the judgment in its entirety, rather than
ordering a new trial on damages alone (as Duhon had requested); and
(3) the district court did not abuse its discretion in granting the
defendants’ motion in limine prior to the second trial.
I. FACTS AND PROCEDURAL HISTORY
This case arises from a traffic accident on Interstate 10
near Lafayette, Louisiana. Luther Marceaux, the driver of a
tractor-trailer, crashed into Norma Duhon’s pickup truck at a speed
of approximately 25 miles per hour. Norma Duhon and her husband,
Turney, filed an action in state court against Luther Marceaux;
Calvin Marceaux, the owner of the tractor-trailer; and Colonial
County Mutual Insurance Company, Marceaux’s insurer. The
defendants removed the case to federal court.
The case was tried before a jury in February 2000. The
jury found in favor of Duhon, but their verdict was troubling in
several respects. First, the jury awarded Duhon approximately
$35,000 for medical expenses and property damage but awarded
nothing for Norma Duhon’s pain and suffering or Turney Duhon’s loss
of consortium. As the Duhons emphasized in their motion for a new
trial on damages, “To award special damages for medical expenses
2
and lost wages, but not for general damages -- personal injury,
pain and suffering, etc. -- is, as a matter of Louisiana law, to
err.” Pagan v. Shoney’s, Inc., 931 F.2d 334, 337 (5th Cir. 1991).
Second, the jury concluded that Norma Duhon was 40% at
fault even though her negligence was not a proximate cause of the
accident. Clearly, if the jury had concluded that Duhon’s
negligence was not a cause of the accident, they should not have
reached the comparative fault question. Although Duhon now
characterizes these inconsistent findings as a “glitch” caused by
a poorly-worded jury interrogatory form, the parties and the court
engaged in a lengthy sidebar discussion in which it was agreed that
the jury seriously misunderstood their instructions. At that time,
the district court decided to disregard the jury’s comparative
fault answer.
After the district court had entered judgment for Duhon,
both parties filed timely motions for a new trial. Duhon requested
a new trial on damages because of the jury’s failure to award
general damages. Marceaux emphasized that the jury’s findings as
to causation and comparative fault were irreconcilable and that the
circumstances suggested that the jury rendered a compromise
verdict. Marceaux thus requested that the court grant a new trial
on the issue of liability if the court granted a new trial as to
damages.
The district court conducted a hearing on these motions
and ordered that the judgment be “vacated and set aside as to all
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parties and all issues.” Although the district court’s reasons
were not included in the written order, the court stated that its
decision was based on “oral reasons assigned” at the hearing held
earlier that day. In this same order, the district court denied as
moot both parties’ motions for a new trial.
The district court scheduled a new trial for October
2000. Prior to the second trial, the district court granted
Marceaux’s motion in limine to exclude opinion testimony of the
highway patrolman who had investigated the accident. Although the
officer testified at the second trial, he was not permitted to
state his conclusions as to which party was responsible for the
accident.
The second jury found that Marceaux was not negligent,
and the court entered judgment for the defendants. This appeal
followed.
II. DISCUSSION
A
First, Duhon contends that the district court lacked
jurisdiction to conduct the second trial because the court’s order
vacating the first judgment did not comply with Federal Rule of
Civil Procedure 59(d). We review this issue de novo.
Duhon makes much of the fact that the district court did
not explicitly order a new trial but merely vacated the judgment
entered on the first jury verdict. While we agree with the Eighth
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Circuit that a district court “cannot implicitly grant a new trial
under Rule 59,” Copper v. City of Fargo, 184 F.3d 994, 997 (8th
Cir. 1999), we are not faced with that situation here. In Copper,
the district court entered a judgment awarding nominal damages to
the plaintiff. Suggesting that the jury may have been misled by
the jury instructions, the district court invited the parties to
file motions for a new trial. The plaintiffs filed a motion for
new trial on damages only, which the district court denied three
months later. The Eighth Circuit noted that “no further action
occurred in the case” until the parties and the district judge met
to schedule a new trial. Id. Although the parties implicitly
consented to a new trial, the district court in Copper left the
first judgment intact, yet proceeded to reconsider the substantive
issues of the case and dispose of them by summary judgment, and
thereafter conducted a second jury trial on damages. Such is
plainly not the case here: after holding a hearing on the pending
new trial motions, the district court vacated the first judgment
before proceeding to schedule and conduct a second trial.
Duhon also argues that the district court’s order
vacating the first judgment was invalid because it was issued more
than 10 days after the judgment. See Fed. R. Civ. P. 59(d)(“No
later than 10 days after entry of judgment the court, on its own,
may order a new trial for any reason that would justify granting
one on a party’s motion.”). However, as this court has explained,
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the 10-day rule applies only when no motion for a new trial is
pending. See Tarlton v. Exxon, 688 F.2d 973, 978 (5th Cir.
1982)(citing the Advisory Committee Note to the 1966 amendment to
Rule 59(d)); see also WRIGHT & MILLER, 11 FED. PRAC. & PROC. CIV. 2D §
2813 (explaining that a district court has the power, “in cases in
which there has been a timely motion for a new trial, to grant a
new trial after the ten-day period has expired on a ground not
relied on in the motion”). In this case, both parties filed timely
motions for a new trial, and the court was permitted to order a new
trial for reasons not articulated in the pending motions, even
though more than 10 days had passed since the entry of judgment.
Duhon also contends that the district court’s order was
fatally defective because the court failed to explain its reasons
for vacating the first judgment. See Fed. R. Civ. P. 59(d)(“After
giving the parties notice and an opportunity to be heard, the court
may grant a timely motion for a new trial for a reason not stated
in the motion. When granting a new trial on its own initiative or
for a reason not stated in the motion, the court shall specify the
grounds in its order.”). As noted above, the order states that the
judgment was vacated for reasons given during the hearing earlier
that day. Although Duhon now asserts that the district court’s
reasons were unclear, Duhon has failed to provide this court with
a transcript of the April 6th hearing on the new trial motions. By
failing to produce a suitable record on appeal, Duhon has
effectively waived her right to challenge the court’s order on this
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ground. See Richardson v. Henry, 902 F.2d 414, 416 (5th Cir.
1990)(dismissing an appeal for failure to provide a transcript);
Deines v. Vermeer Manufacturing Co., 969 F.2d 977, 979-80 (10th
Cir. 1992)(holding that the appellant’s failure to provide a
suitable record rendered the appellant’s contentions unreviewable).
In sum, Duhon has presented no persuasive argument that the
district court’s vacatur of the first judgment was impermissible
under Rule 59(d).
B
Second, Duhon contends that the district court abused its
discretion in granting a new trial on all issues, rather than on
damages only.1 “Our review of a district court’s decision to grant
a new trial is broader than our review of a district court’s denial
of a new trial, but the standard remains one of abuse of
discretion.” Reddin v. Robinson Property Group Ltd. Partnership,
239 F.3d 756, 758 (5th Cir. 2001).
Our review of this issue is hampered by Duhon’s failure
to provide this court with the district court’s account of its
reasons for granting a new trial. Nevertheless, the district court
knew that it would probably have to conduct a new trial on damages
anyway; that the issues of negligence (including comparative
negligence) and causation were vigorously contested; that the jury
misunderstood their instructions with regard to these contested
1
We assume for the sake of argument that a new trial on damages would
have been required under Pagan v. Shoney’s, supra.
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issues; and that the jury’s verdict -- that Duhon was 40% at fault
even though her negligence was not a proximate cause of the
accident -- simply made no sense. Under these circumstances, the
district court’s decision to grant a new trial on all issues,
rather than on damages alone, does not constitute an abuse of
discretion.
C
Third, Duhon contends that the district court erred in
granting (prior to the second trial) Marceaux’s motion in limine to
exclude Officer Chad Gaudet’s opinion testimony as to who caused
the accident.2 We review the district court’s evidentiary rulings
for an abuse of discretion. Reddin, 239 F.3d at 759.
Marceaux’s motion in limine was based on Rule 701:
If the witness is not testifying as an expert, the
witness’ testimony in the form of opinions or inferences
is limited to those opinions or inferences which are (a)
rationally based on the perception of the witness, (b)
helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue, and
(c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.
Fed. R. Evid. 701. It is undisputed that Officer Gaudet was not
qualified to testify as an expert in accident reconstruction and
that he did not witness the accident. As a general rule, police
officers’ lay “opinions as to the cause of an automobile accident
formed by viewing subsequent evidence at the scene” are excluded
2
At the first trial, Officer Gaudet testified that, in his opinion,
the accident was caused by Marceaux’s inattentiveness.
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under Rule 701. See 38 A.L.R. 2d 13 §22; Ernst v. Ace Motor Sales,
Inc., 550 F. Supp. 1220, 1223 (E.D. Pa. 1982), aff’d without op.,
720 F.2d 661 (3d Cir. 1982)(officer’s lay opinion testimony was
admissible only to the extent that it pertained to the point of
impact). As Duhon cites no authority to the contrary,3 we conclude
that the district court did not abuse its discretion in granting
Marceaux’s motion in limine.
Alternatively, Duhon suggests that the district court
abused its discretion in excluding Officer Gaudet’s accident
report. However, the motion in limine did not address the
admissibility of the accident report, and the district court
specifically stated that the report could be used as long as Duhon
redacted those portions of the report that expressed an opinion
about the cause of the accident. Then, at trial, Duhon asked
Officer Gaudet to read from the narrative section of the report,
but Duhon never sought to admit the accident report itself into
evidence. There can be no error here inasmuch as the district
court did not exclude the accident report, either in its ruling on
the motion in limine or during the trial itself.
3
Specifically, Duhon cites no decision in which Rule 803(8)(C) (the
public records exception) has been applied to conclusions reached in police
reports. See Fed. R. Evid. 803(8)(“Records, reports, statements, or data
compilations, in any form, of public offices or agencies, setting forth . . . (C)
in civil actions and proceedings . . . , factual findings resulting from an
investigation made pursuant to authority granted by law, unless the sources of
information or other circumstances indicate lack of trustworthiness.”). In other
contexts, this court still distinguishes between admissible findings of fact and
inadmissible evaluative conclusions or opinions in official reports. See, e.g.,
Smith v. Isuzu Motors Ltd., 137 F.3d 859, 862 (5th Cir. 1998).
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III. CONCLUSION
Because we find no reversible error in the district
court’s decisions to order a new trial and exclude the officer’s
opinion testimony, the judgment of the district court is AFFIRMED.
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