Heckman v. Gonzalez-Caballero ( 2023 )

Case: 22-10415 Document: 00516710785 Page: 1 Date Filed: 04/13/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 13, 2023
No. 22-10415
Lyle W. Cayce
Clerk
Travis Heckman,
Plaintiff—Appellant,
versus
Raynols Gonzalez-Caballero; Cuba Transport, L.L.C.,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CV-161
Before Higginbotham, Smith, and Engelhardt, Circuit Judges.
Patrick E. Higginbotham, Circuit Judge:
A trucker collided with Travis Heckman on I-20. A jury found the
trucker liable for the accident; while Heckman sought damages in the
millions, citing medical bills, impact on earnings, and pain and suffering, the
jury awarded $37,500. Heckman moved for a new trial or remittitur, citing
defense counsel’s remarks at summation and a Batson violation. The trial
court denied the motion. We AFFIRM.
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I.
On March 7, 2019, Heckman’s car collided with an 18-wheeler,
causing Heckman “to spin out into the center median striking the guardrail
cables.” Raynols Gonzalez-Caballero was driving the 18-wheeler for Cuba
Transport, LLC (collectively “Caballero”). 1 Several months after the
collision, Heckman underwent a cervical fusion surgery on his neck and an
ulnar nerve transposition surgery. On February 19, 2021, Heckman sued
Caballero in the Northern District of Texas. By the Parties’ consent, District
Judge Reed O’Connor reassigned the case to Magistrate Judge Hal Ray, and
the case was set for jury trial. Three episodes of the trial give rise to
Heckman’s claims: an in limine motion, voir dire, and defense counsel’s
closing argument.
Prior to trial, the trial court granted Heckman’s in limine motion,
which prohibited:
Any of the following or similar comments or references or
inferences to same because such claims are irrelevant and
prejudicial to Plaintiff: (1) reference that Plaintiff will or might
be made “rich” because of this lawsuit; (2) reference that this
lawsuit is a “lottery” ticket that Plaintiff is holding; (3)
reference that Plaintiff has or might “benefit financially” from
this lawsuit.
Two issues arose in voir dire. First, when defense counsel struck the
only two Black members of venire, Heckman challenged the peremptory
1
The Parties jointly refer to Defendants-Appellees—the driver as well as the
transportation company by which he is employed—as “Caballero.” For clarity, we adopt
this convention as well.
2
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strikes as a Batson violation. 2 Pursuant to Batson’s tripartite framework, the
trial court first found that the strikes created a prima facie case of
discrimination. The trial court then recounted defense counsel’s proffered
reasons for the strikes, concluding that defense counsel had met their burden.
Finally, the trial court undertook “a sensitive inquiry into the circumstantial
and the direct evidence” of discrimination to determine the veracity of those
reasons, which included a review of counsel’s notes and hearing additional
argument. Ultimately, the trial court rejected the Batson challenge.
Second, defense counsel asked the venire panel: “How many people
think there’s way too many personal injury lawsuits filed today?” Several
venirepersons agreed. When asked why, Venireperson No. 13 responded:
“Texas Hammer.” Defense counsel responded: “I was waiting for someone
to bring him up.” Venireperson No. 13 continued: “It just seems like we’re
just too much trying to get free money, easy money,” a statement with which
several jurors agreed. But Venireperson No. 10 mentioned seeing
commercials for Mr. Adler and felt that “he’s going to do everything he can
to make sure that I come out, you know, with lots of money,” and
Venireperson No. 9 agreed with this positive association with “the Texas
Hammer.” Aside from the comment regarding waiting for someone to bring
him up, defense counsel never explicitly referenced Adler or “the Hammer,”
nor did plaintiff’s counsel ever object to any of the questioning.
Finally, during closing argument, defense counsel placed an emphasis
on the word “hammer,” purportedly harkening back to the discussion
undertaken during voir dire. In one example, defense counsel asked the jury
whether it was “odd that [plaintiff’s counsel] kept hammering questions at
2
See generally Batson v. Kentucky, 476 U.S. 79 (1986) (holding that the use of
peremptory challenges to remove a juror from the jury pool based on race violates the Equal
Protection Clause of the Fourteenth Amendment).
3
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[an expert physician testifying] but not letting him provide an answer?” In
the other spoken example, defense counsel argued that “irregardless [sic] of
the issue of negligence, Plaintiff is contending that you should hammer the
Defendant for $2,198,000 for this severe accident[.]” Defense counsel also
created slides to be shown during closing arguments that displayed the word
“hammer” in a similar context—e.g., “HAMMER-up litigation damages”
or “HAMMER UP $$$$.” Notably, defense counsel—distinct from
Caballero’s appellate counsel—attests that technical issues (a severed
connection) and time limitations prevented counsel from showing many of
the slides to the jury and he cannot “determine with certainty which slides
were omitted during closing [arguments].” Ultimately, the jury found
Caballero solely liable for the accident and awarded Heckman $37,500.
Heckman moved for a new trial, arguing that defense counsel’s
improper summation was prejudicial and that the trial court erred in rejecting
the Batson challenge. The district court ruled that it “d[id] not view the
comments as attempts to insert Mr. Adler and his marketing efforts into the
trial of Heckman’s case, and there is no evidence to show that the arguments
of defense counsel were false or baseless.” Regarding the Batson challenge,
the trial court reviewed the steps it undertook to arrive at its decision and
concluded “that defense counsel’s peremptory strikes of venireperson 1 and
2 did not result from intentional discrimination based on race.”
II.
A trial court’s denial of a motion for a new trial “will be affirmed
unless there is a clear showing of an absolute absence of evidence to support
the jury’s verdict, thus indicating that the trial court had abused its discretion
4
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in refusing to find the jury’s verdict contrary to the great weight of the
evidence.” 3 This standard of review is “burdensome for an appellant.” 4
III.
A.
With respect to statements made in closing argument, “a ‘district
court may order a new trial if improper closing argument irreparably
prejudices a jury verdict or if a jury fails to follow instructions.’” 5 “In
determining the effect of statements made during closing argument, we
consider the record as a whole and not merely isolated remarks.” 6
The decision to grant or deny a motion for a new trial rests in
the sound discretion of the trial judge; that discretion can be
set aside only upon a clear showing of abuse, which evinces an
error of law in a ruling below. Where, as here, the trial judge
has denied the motion and left the decision of the jury in tact
[sic], this circuit has shown even greater deference to the trial
judge’s discretion. However, this deference cannot exceed a
due regard for what is right and the interests of justice. 7
3
Vital v. Nat’l Oilwell Varco, L.P., 685 F. App’x 355, 359 (5th Cir. 2017)
(unpublished) (per curiam) (quoting Lane v. R.A. Sims, Jr., Inc., 241 F.3d 439, 444 (5th Cir.
2001)).
4
Id.5
Wallner v. Ziegler, 470 F. App’x 230, 232 (5th Cir. 2012) (unpublished) (per
curiam) (quoting Nissho–Iwai Co., Ltd. v. Occidental Crude Sales, Inc., 848 F.2d 613, 619
(5th Cir. 1988)).
6
In re Isbell Recs., Inc., 774 F.3d 859, 872 (5th Cir. 2014) (quoting Daniel v. Ergon,
Inc., 892 F.2d 403, 411 (5th Cir. 1990)).
7
Westbrook v. Gen. Tire & Rubber Co., 754 F.2d 1233, 1241 (5th Cir. 1985) (per
curiam) (citations omitted).
5
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In sum, “[j]ury verdicts on damages may be overturned only upon a clear
showing of excessiveness or upon a showing that they were influenced by
passion or prejudice,” 8 and “[w]hen a jury verdict results from passion or
prejudice, a new trial is the proper remedy rather than remittitur.” 9
The heart of Heckman’s argument on appeal is that defense counsel
prejudiced the jury by his allusions to a prominent local attorney, Jim Adler,
who advertises on television and refers to himself as “the Hammer” because
he “hammers” insurance companies. Heckman accents this point,
referencing external materials highlighting the perils of attorney advertising
vis-à-vis the “honor and dignity of the legal profession.” Finally, Heckman
argues that the statements violated the trial court’s order to comply with
relevant standards of professionalism and violated the trial court’s in limine
order.
While defense counsel’s references—in statements or slides—may
have been inappropriate, they do not warrant a new trial. We lack the trial
judge’s advantage of courtroom context in determining the extent of the
jury’s perceived connection between the comments and Adler, and the able
trial judge concluded that defense counsel’s statements did not constitute an
“attempt[] to insert Mr. Adler and his marketing efforts into the trial.”
Moreover, though some members of the venire spoke of Adler in a negative
or disparaging way, others spoke positively of him and his commercials,
mitigating the prejudicial impact of such a connection if it did indeed exist.
And as the trial court observed: “the fact that Heckman’s counsel did not
object to the use of ‘hammer’ in [Caballero’s] closing argument is a telling
indication that they did not think at the time the references were so
8
Id. (citations omitted).
9
Id. (collecting cases).
6
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prejudicial that they warranted an objection or request for a limiting
instruction.”
Reversal or remittitur is appropriate only when, in closing arguments,
“counsel’s assertions are ‘either false or without basis in the record.’” 10 For
example, when a new trial was requested because counsel in summation
referred to a party as “a thief,” this Court affirmed the denial of a new trial
because there was evidence that the individual in question stole copyright.11
By contrast, this Court ordered a new trial when counsel made multiple
inappropriate remarks, including referring to the victim “as a woman who
had flouted respect for marriage vows, who had used illegal drugs, and who
was trying to take advantage of the good people of rural northern
Mississippi.” 12 But even amidst such remarks, we made clear that we “would
not reverse the district court . . . on the basis of these remarks alone, absent a
timely objection.” 13 Rather, we instructed that the inappropriate comments
made by counsel must be considered in conjunction with a particularly low
award and an overwhelming amount of evidence: “[g]iven the strength of the
plaintiff’s evidence on causation and the uncontradicted testimony that she
is totally disabled and will incur enormous expenses over her lifetime as a
result of her disability, we think the jury verdict of $55,000 strongly indicates
that the jury’s deliberation in this case was not impartial.” 14
Here, the record falls far short of indisputable evidence of injury and
disability that would compel a conclusion that the jury would have otherwise
10
In re Isbell, 774 F.3d at 872 (quoting Wallner, 470 F. App’x at 233).
11
Id.
12
Hall v. Freese, 735 F.2d 956, 960 (5th Cir. 1984).
13
Id. at 962.
14
Id. at 959–60.
7
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awarded a higher verdict but for the statements at issue. Indeed, the evidence
shows: the original police report was that neither driver was injured;
Heckman had a preexisting spinal condition; Heckman was released from
physical therapy with no restrictions, an ability to perform the work required
at his job, and no loss of earning capacity; medical bills, which informed the
damages calculation, were substantially inflated—even considered “grossly
excessive” by one expert; and contrary medical evidence regarding the
necessity of the surgery or the causation. In other words, the damages award
was likely based on record evidence rather than defense counsel’s lamentable
references. And as the trial court observed, the evidence regarding excessive,
inflated billing suggests that the word “hammer,” as used colloquially
meaning to “drive” or “build,” 15 has a basis in the record. 16
Any prejudice was also undermined by the usual instructions. In
analogous cases, we have found comfort in the trial court’s limiting
instructions as minimizing any prejudicial effect. 17 So do we. Here, the trial
court gave the pattern instructions: (i) “[t]he testimony of the witnesses and
other exhibits introduced by the parties constitute the evidence”; (ii) that
“statements of counsel are not evidence; they are only arguments”; (iii) “to
decide the case in a fair, impartial, and unbiased manner, based entirely on
the law and on the evidence presented to you in the courtroom”; and (iv) that
jurors “may not be influenced by passion, prejudice, or sympathy that [they]
might have for the plaintiff or the defendant in arriving at [their] verdict.” As
15
See Hammer, DICTIONARY.COM, https://www.dictionary.com/browse/hammer
(last visited Mar. 6, 2023).
16
See In re Isbell, 774 F.3d at 872 (declining to order a new trial where potentially
inflammatory closing statements “were not without basis in the record”).
17
See, e.g., id.8
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“[j]uries are presumed to follow the instructions of the court,” 18 we conclude
that the trial court’s instructions “effectively minimized any prejudice
flowing from [the] improper remarks.” 19
Heckman’s argument that counsel’s references violated in limine
orders and instructions is similarly unpersuasive. The in limine order at issue
is Heckman’s motion to bar defense counsel from any “comments or
references or inferences” that he would get “rich,” e.g., winning the
“lottery.” Reasonable minds can differ as to whether referencing
“hammering up” damages is akin to making Heckman rich or to benefitting
the medical professionals who inflated their bills, but Heckman’s
interpretation is far from singularly correct, and “legal error must be clear or
obvious, rather than subject to reasonable dispute.” 20 And once again,
“[t]ellingly, an objection was not made when the statements were made.” 21
In sum, any impropriety of counsel’s statements notwithstanding, the
strong bar to remittitur or a grant of a new trial, the evidence justifying a low
damages calculation, the lack of concern in the moment, and the jury
instructions neuter Heckman’s claim to a new trial on the basis of defense
counsel’s closing arguments.
18
Hollis v. Provident Life & Acc. Ins. Co., 259 F.3d 410, 417 (5th Cir. 2001).
19
Wallner, 470 F. App’x at 233 (citation omitted); see also Learmonth v. Sears,
Roebuck & Co., 631 F.3d 724, 732–33 (5th Cir. 2011) (holding that any prejudice flowing
from improper comments “was effectively cured by the court’s sustainment of Sears’
objections to each of the statements at trial, as well as by the court’s jury charge” (emphasis
added)).
20
Puckett v. United States, 556 U.S. 129, 135 (2009).
21
Vital, 685 F. App’x at 358.
9
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B.
“Batson claims are evaluated under a three-step process: (1) [a party]
makes a prima facie showing that the peremptory challenge was based on
race; (2) the [opposing party] provides a race-neutral basis for the strike; (3)
the trial court determines whether the [striking party] purposefully
discriminated against the juror.” 22 The trial court’s determination must be
supported by the challenging party, which effectively “ha[s] the burden to
show that the reason given was pretextual or otherwise inadequate.” 23 When
a Batson challenge is raised at trial and then again on appeal, “[w]e pay great
deference to the trial judge’s decision.” 24 It follows that “we will affirm the
district court’s ruling on a Batson challenge unless it is clearly erroneous, that
is unless we are left with the definite and firm conviction that a mistake was
committed.” 25
The Parties agree that defense counsel used two peremptory strikes
against the only two Black persons on the venire panel. The trial court
concluded that these strikes made a prima facie case of discrimination. The
trial court found that Caballero articulated a sufficient non-discriminatory
explanation: Venireperson No. 1, Golden, was struck in light of “questions
22
Broadnax v. Lumpkin, 987 F.3d 400, 409 (5th Cir. 2021) (citing Foster v.
Chatman, 578 U.S. 488, 499 (2016)), cert. denied, 142 S. Ct. 859 (2022).
Batson challenges typically arise in criminal or habeas contexts, but Batson’s
framework squarely applies to traditional civil suits. See, e.g., Great Plains Equip., Inc. v.
Koch Gathering Sys., Inc., 45 F.3d 962, 964 (5th Cir. 1995) (“A party to a civil suit can
challenge another party’s use of a peremptory strike that excludes a prospective juror on
the basis of that juror’s race.” (citations omitted)).
23
Great Plains, 45 F.3d at 965.
24
Palmer v. Lares, 42 F.3d 975, 979 (5th Cir. 1995) (quoting United States v.
Hinojosa, 958 F.2d 624, 632 (5th Cir. 1992)).
25
Great Plains, 45 F.3d at 964 (citation omitted).
10
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about his ability to follow the Court’s instructions and . . . holding
[Caballero] to a higher standard than an ordinary person,” while
Venireperson No. 2, Garnett, was struck because she was a social worker and
thus, according to defense counsel, may be more sympathetic to an injured
plaintiff. The trial court then reviewed the annotations and marks regarding
the jurors stricken peremptorily and compared the two peremptorily stricken
jurors to other jurors. After undertaking “a sensitive inquiry into the
circumstantial and the direct evidence” of discrimination, the trial court
found “no direct evidence” of inappropriate bias and concluded that the
“circumstantial evidence that was suggested . . . [wa]s not persuasive enough
to convince [the court] that intentional discrimination has been proven on
these facts.”
On appeal, Heckman argues that Magistrate Judge Ray “was reluctant
to make a finding that [] Caballero’s striking of all the black jurors was race
discrimination,” and that such discrimination was present, evidenced by a
side-by-side comparison of jurors and implicit bias. We disagree.
First, “[t]he Supreme Court has instructed that, when analyzing
Batson challenges, ‘bare statistics’ are not the be-all end-all”; 26 instead, for
“statistical evidence to be relevant, data concerning the entire jury pool is
necessary. The number of strikes used to excuse minority . . . jury pool
members is irrelevant on its own.” 27 Thus, that Caballero used peremptory
26
Chamberlin v. Fisher, 885 F.3d 832, 840 (5th Cir. 2018) (en banc) (quoting Miller-
El v. Dretke, 545 U.S. 231, 241 (2005)).
27
Sheppard v. Davis, 967 F.3d 458, 472 n.14 (5th Cir. 2020) (quoting Medellin v.
Dretke, 371 F.3d 270, 278–79 (5th Cir. 2004)).
11
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strikes to “remove 100% of the nonwhite veniremembers” does not, in itself,
establish discrimination. 28
Second, scrutiny into the two strikes at issue—both in isolation and in
the context of the other strikes—undermines Heckman’s argument.
Consider Ms. Garnett. Defense counsel stated that “our basis for striking her
is the fact that she’s a social worker. In my experience, people that work in
the social work industry are generally more sympathetic, and that’s the
reason that we struck her.” Thereafter, Heckman’s counsel argued that
social workers are less sympathetic as they “have become very skeptical of
individuals because . . . they’re always dealing with people who aren’t telling
the truth.” Subsequently, Heckman’s counsel suggested that a “children’s
programming librarian” and a “patient coordinator” are equally sympathetic
but were not stricken, suggesting racial bias. Differing views counsel have as
to social workers’ sympathy—or lack thereof—offers not only a clearer
explanation, but a plausible non-pretextual reason. Caballero statistically
reframes the argument persuasively: defense counsel struck 100% of social
workers among the entire venire panel who may be especially sympathetic
jurors. Absent any additional indicia of discrimination in counsel’s notes or
statements, this strike does not give rise to strong evidence of discrimination.
Now consider Mr. Golden. Defense counsel’s peremptory strike was
used based on a conversation defense counsel undertook focusing on the
standards of care owed by commercial truck drivers. In this open discussion,
several venirepersons voiced—to varying degrees—some concern that they
may hold truck drivers’ driving “to a higher standard of care . . . just by virtue
of the fact they’re driving a truck.” After defense counsel probed multiple
venirepersons’ beliefs on this issue, defense moved to strike two for cause.
28
Broadnax, 987 F.3d at 412.
12
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The trial court denied the strike as to Venireperson No. 1, Mr. Golden, who
is Black, but granted the strike as to Venireperson No. 4, Mr. Mitchell, who
is not; the trial court distinguished the two challenges based on the different
degrees of reluctance the respective venirepersons evinced with respect to
the standard of care they believed truck drivers owed as well as their
willingness or ability to disregard that instinct and follow the court’s
instructions on this topic. Subsequently, defense counsel used a peremptory
strike on Mr. Golden.
Heckman argues that other venirepersons expressed similar concerns
regarding 18-wheel truck drivers’ duties but were not peremptorily struck,
giving rise to an inference of discrimination. There is more to the story,
though: of the multiple members of the venire who expressed such concerns,
defense counsel only challenged two for cause, meaning defense counsel’s
concerns on this issue about other venirepersons were assuaged by the
entirety of the discussion. Of the two challenged for cause, Mitchell—who is
not Black—was removed, but Golden—who is Black—was not, prompting
defense counsel to use a peremptory strike based on the same concern.
Where a party has successfully challenged another juror on the same grounds
for cause and attempted to do so again, it could be said that the “challenge
for cause might have been justified,” thereby providing a sufficient non-
pretextual reason for the challenge and diminishing the inference of
discrimination—particularly where the striking party’s explanation for a
peremptory strike “need not rise to the level justifying exercise of a challenge
for cause.” 29 Moreover, Caballero’s reframing of relevant statistics of the
29
United States v. Forbes, 816 F.2d 1006, 1010 (5th Cir. 1987) (holding that the
district court’s observation that “‘a challenge for cause might have been justified’ as to this
juror” was “more than sufficient under Batson, which emphasized that ‘the prosecutor’s
explanation need not rise to the level justifying exercise of a challenge for cause’” (quoting
Batson, 476 U.S. at 97)).
13
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challenge process is again persuasive: defense counsel struck 100% “of the
venire members who were challenged but not removed for cause.”
Finally, Heckman finds no refuge in arguments sounding in implicit
bias. “Batson is not designed to root out implicit bias, as Justices Breyer and
Marshall . . . have discussed in some depth.” 30
Given no direct evidence of discrimination for the challenges, nominal
circumstantial evidence (the treatment of minimally comparable jurors), and
the deference this Court gives to a trial court with respect to Batson rulings,
Heckman’s Batson claim does not warrant a new trial.
*****
We AFFIRM.
30
Shirley v. Yates, 807 F.3d 1090, 1110 n.26 (9th Cir. 2015), as amended (Mar. 21,
2016); see Miller–El, 545 U.S. at 267–68 (Breyer, J., concurring) (citing Batson, 476 U.S. at
106 (Marshall, J., concurring)).
14