Paula Kingman v. Dillards, Inc. ( 2013 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-1075
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Paula Kingman; Calvin Kingman
lllllllllllllllllllll Plaintiffs - Appellees
v.
Dillard's, Inc.
lllllllllllllllllllll Defendant - Appellant
___________________________
No. 12-1091
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Paula Kingman; Calvin Kingman
lllllllllllllllllllll Plaintiffs - Appellants
v.
Dillard's, Inc.
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the Western District of Missouri – Kansas City
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Submitted: January 16, 2013
Filed: July 25, 2013
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Before BYE, MELLOY, and SMITH, Circuit Judges.
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MELLOY, Circuit Judge.
This matter is before the Court after we remanded the case for reconsideration
of a damages award. On remand, the district court1 reduced the award amount by
seventy-five percent, and the parties cross-appealed. For the reasons set forth below,
we affirm the district court's reduced damages award.
I.
A.
Paula Kingman was injured in November 2004 when a clothing rack broke free
from a wall at a Dillard's, Inc. ("Dillard's") department store in Kansas City, Missouri,
and struck her right shoulder. The full extent of Paula's injuries are set forth in our
prior opinion pertaining to this case. Kingman v. Dillard's, Inc., 643 F.3d 607, 610–11
(8th Cir. 2011) ("Kingman II"). As is relevant for this appeal, Paula's injuries restrict
the amount of weight that she can lift with her right shoulder to five to ten pounds.
Paula sued Dillard's for her injuries and, after a bench trial, the district court awarded
her $186,388 in damages.
Paula's husband, Calvin Kingman (together with Paula, "the Kingmans"), also
sued Dillard's for loss of consortium. Calvin weighs 250–300 pounds and suffers
from quadriplegia as a result of a car accident in 1982. Calvin relies primarily on
Paula to assist him with bathing, dressing, feeding, and relieving himself. Paula is
1
The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
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also responsible for moving Calvin by hoisting, pushing, or pulling him to help him
avoid developing pressure sores. The district court awarded Calvin $1 million in
consortium damages to cover the cost of professional healthcare services for fifteen
years until Paula reaches age sixty-two. The court reasoned that after that time, Paula
could no longer be expected to move Calvin, even absent her shoulder injuries.
Dillard's appealed the district court's damages awards to the Kingmans. We
affirmed Paula's award, id. at 614, but vacated Calvin's award and remanded the case
for reconsideration, id. at 618. The crux of our decision to vacate and remand was
two-fold. First, we expressed reservations regarding whether the services and care
that Paula provided to Calvin are compensable as consortium under Missouri law. See
id. at 615 ("No Missouri court has ever allowed a spouse to recover on a consortium
claim for life-long professional nursing care."); id. at 616 ("[P]rofessional nursing care
is not included in the ordinary services that Missouri expects a wife to provide to her
husband."). Second, we were concerned that the amount of the consortium award to
Calvin greatly exceeded the amount of the award to Paula, who was the principal
injured party. See id. at 617 ("[W]e do not believe that [Missouri] precedent
foreshadows a disproportionately large consortium claim of the sort awarded to Calvin
by the district court."); id. ("[W]e think it unlikely that, absent legislative action, the
Supreme Court of Missouri would expand the concept of consortium to include a
claim for lifetime professional nursing services that vastly exceeds the underlying
award to the injured spouse.").
On remand, the district court reduced Calvin's award to $250,000. Kingman v.
Dillard's, Inc., 835 F. Supp. 2d 732, 736 (W.D. Mo. 2011) ("Kingman III"). The
district court reasoned that our "repeated reference to professional nursing services as
an inappropriate source of compensation was the limitation that must be followed."
Id. at 735 (emphasis added). The district court further acknowledged that Paula
should not be relieved of performing those tasks of which she remains capable and
that she performed prior to her shoulder injuries (e.g., bathing, feeding, and changing
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bedpans). Rather, the consortium award should cover only the "heavy lifting and
adjustment" of Calvin that Paula can no longer perform due to the weight restriction
on her shoulder. Id. at 736.
Dillard's and the Kingmans now cross-appeal Calvin's $250,000 award. The
parties argue over two main points. First, the parties dispute whether the district court
erred by including Paula's "heavy lifting and adjustment" as services encompassed by
the notion of consortium. Dillard's contends that "medical/nursing healthcare services
ordinarily performed by professionals do not constitute the type of spousal duties and
obligations that are normally expected in the maintenance of a household, and
therefore . . . [are] not compensable as a loss of consortium." (Internal quotation
marks omitted.) The Kingmans, on the other hand, argue that "in the context of a loss
of services claim, the word 'services' implies any and all assistance the wife is
expected to provide [to] her husband under the particular circumstances in which they
are placed." (Internal quotation marks added.)
Second, assuming that Paula's "heavy lifting and adjustment" are properly
within the scope of consortium, the parties argue over the award amount and whether
and to what extent Missouri law requires proportionality between the damages awards
to a principal injured spouse and a consortium spouse. Dillard's contends that "even
if Calvin had established his right to some relief," the award of $250,000 is "grossly
excessive." The Kingmans offer three alternative damages theories. First, the
Kingmans assert that the original award of $1 million, "while substantial," was in no
way a "windfall" and serves only "to make [Calvin] whole," and thus should be
reinstated. Next, the Kingmans urge this Court to treble Paula's damages amount and
award $559,164 to Calvin for his loss of consortium. Finally, the Kingmans argue for
affirmance of the district court's $250,000 award, claiming that the amount "is fully
within the parameters" of our prior opinion.
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B.
"This court reviews the district court's compensatory damage award for clear
error, giving due regard to credibility determinations of the district court."2 Ledbetter
v. Alltel Corporate Servs., Inc., 437 F.3d 717, 725 (8th Cir. 2006); see Hall v. Gus
Constr. Co., 842 F.2d 1010, 1017 (8th Cir. 1988) ("In a bench trial, ascertaining the
plaintiff's damages is a form of factfinding that can be set aside only if clearly
erroneous."). "Under the clearly erroneous standard, we will overturn a factual
finding only if it is not supported by substantial evidence in the record, if it is based
on an erroneous view of the law, or if we are left with the definite and firm conviction
that an error was made." Roemmich v. Eagle Eye Dev., LLC, 526 F.3d 343, 353 (8th
Cir. 2008) (citation and internal quotation marks omitted).
Because this case is before us based on diversity of citizenship, "we apply the
substantive law that would be applied by a Missouri state court." BancorpSouth Bank
v. Hazelwood Logistics Ctr., LLC, 706 F.3d 888, 893 (8th Cir. 2013).
2
Dillard's argues for de novo review. Dillard's asserts that the question before
this Court is not strictly a review of the amount of Calvin's new damages award, but
rather whether the district court complied with this Court's mandate that Calvin's
award not exceed Paula's award. See United States v. Castellanos, 608 F.3d 1010,
1016–17 (8th Cir. 2010) (explaining the law-of-the-case doctrine). Kingman II,
however, left open the question of the proper amount of Calvin's damages award,
including whether and to what extent his award could exceed Paula's award. See 643
F.3d at 618 ("[A]n invalid spouse might be entitled to a greater recovery than a healthy
spouse if his injured wife had previously been undertaking a greater share of
household services that are encompassed by the notion of consortium." (emphases
added)); id. ("[W]e predict that the Supreme Court of Missouri would permit a higher
consortium award [than an injured spouse's award] when, as here, the uninjured
spouse is an invalid."). Thus, any "mandate" handed down previously was
open-ended in view of the particular facts of the case, and the district court's decision
to award Calvin greater damages than Paula on remand is not per se disobedient to
this Court's prior instruction.
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II.
Our analysis proceeds in three phases. We first consider the question of
whether the "heavy lifting and adjustment" that Paula performed before her shoulder
injury are encompassed by the notion of consortium under Missouri law. Answering
this question in the affirmative, we turn next to the question of whether Calvin's
damages award on remand "vastly exceeds" Paula's damages award and is therefore
inconsistent with our prior opinion and prediction of how the Supreme Court of
Missouri would rule. See Kingman II, 643 F.3d at 617. Determining that a $250,000
consortium award to Calvin does not, in our view, violate Missouri law, we then turn
to the issue of whether the award amount is supported by the record and the specific
facts of this case.
A.
As Missouri courts have recognized,
[w]hen a married person is injured, two causes of action
arise: one accrues to the injured person for the injuries
suffered directly by him or her, and the other accrues to the
injured person's spouse for damages suffered as a result of
the loss of the injured person's services, society,
companionship, and sexual relations (loss of consortium).
Thompson v. Brown & Williamson Tobacco Corp., 207 S.W.3d 76, 112–13 (Mo. Ct.
App. 2006) (citation and internal quotation marks omitted). Loss of consortium
encompasses services that the injured spouse once previously performed for the
consortium spouse but is no longer able to perform after the injury, see, e.g., Gooch
v. Avsco, Inc., 340 S.W.2d 665, 669–70 (Mo. 1960) (affirming consortium award to
husband because injured wife no longer able to perform housework and "wifely duties
and obligations"), as well as new services that the consortium spouse must take on for
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the injured spouse that, prior to the injury, the consortium spouse was not required to
perform, see, e.g., Helming v. Dulle, 441 S.W.2d 350, 354–55 (Mo. 1969) (husband's
injuries required wife to take on "varied and sundry duties" not previously performed,
including a second job). We note that this case is akin to the set of circumstances in
Gooch in that prior to her injury Paula was able to move and adjust Calvin, but she is
now no longer able due to the limited weight that she can lift with her right shoulder.
However, because the dispute in this case centers around the nature and character of
the duties enveloped in the notion of consortium, we are not concerned with the
context in which the concept arises.
With this framework in mind, we turn first to the language of our prior opinion
and then to the case law regarding loss of consortium.
1.
In our prior opinion, we stated that "[n]o Missouri court has ever allowed a
spouse to recover on a consortium claim for life-long professional nursing care."
Kingman II, 643 F.3d at 615. Dillard's argues that "professional nursing care" refers
to services that "are customarily performed by career medical personnel who are paid
for their services—and not traditionally by one's spouse," and that "'lifting and
adjusting' . . . are the precise types of professionally-administered healthcare activities
that . . . are not traditional household or domestic services encompassed by
consortium." Assuming, arguendo, that Dillard's is correct in its characterization of
"heavy lifting and adjustment," its argument that such services should be per se
excluded from Calvin's consortium claim still fails for two reasons.
First, while "heavy lifting and adjustment" may be performed by home health
aids, it is also the type of assistance that a spouse or child or layperson can provide.
And in fact, the parties do not dispute that prior to the November 2004 incident at
Dillard's, Paula—not a third-party aid or in-home caretaker—had been responsible for
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lifting and adjusting Calvin. The district court's first order makes this point clear. See
Kingman v. Dillard's, Inc., No. 06-0907-CV-W-HFS, 2010 WL 2710716, at *3 (W.D.
Mo. July 7, 2010) ("Kingman I") (stating that prior to her shoulder injury, "Paula was
doing the work of two [caregivers] (with a hoist)"). These tasks thus had been part
of Paula's "wifely duties and obligations" for more than twenty years following the
1982 accident that rendered Calvin a quadriplegic. See Gooch, 340 S.W.2d at 669.
Second, although we noted previously that "professional nursing care is not included
in the ordinary services that Missouri expects a wife to provide to her husband,"
Kingman II, 643 F.3d at 616 (emphasis added), we recognized that "[t]o be sure, this
is not the usual case," id. at 617, and that "Calvin's invalid status and Paula's former
role as his primary care-giver are not entirely irrelevant to Calvin's loss-of-consortium
claim," id. at 618. Thus, our prior opinion did not categorically exclude "heavy lifting
and adjustment" from the scope of consortium simply because similar tasks might be
performed by paid healthcare professionals.
Whether those services are embodied in the concept of consortium, however,
is determined by Missouri case law, which is where we turn our attention now.
2.
In Helming, an injured husband's wife sued for loss of consortium after her
husband was hospitalized because he "severely injured" his hands on the defendant's
machinery. 441 S.W.2d at 351–52. The Helming court noted that "[a]fter [the
husband's] first discharge from the hospital, his both [sic] hands were bandaged and
his wife was required to assist him when he ate meals, she shaved him and she
buttoned his clothing. [The husband's] handicap still necessitates some services of this
character by [his] wife . . . ." Id. at 354–55. The court affirmed a $10,000 award to
the wife for loss of consortium, stating that "these varied and sundry duties now fall
upon the wife and constitute a disruptive influence in the sphere of family and social
life between the parties." Id. at 355.
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 Later, in Pretre v. United States, 531 F. Supp. 931 (E.D. Mo. 1981), a federal
district court applying Missouri law reached a similar conclusion. In Pretre, a husband
was infected with swine flu and hospitalized for five months. During this time, his
wife "visited the hospital every day, for about 10 hours daily. She helped care for [her
husband], doing such tasks as helping to feed him, emptying bed pans, and helping
with his physical therapy." Id. at 932. As a result of the flu, the husband contracted
a syndrome that caused him to suffer from several permanent negative side effects,
including a condition that affected blood circulation in his legs and "render[ed] him
more susceptible to leg ulcers." Id. at 933. The wife sued for loss of consortium. The
district court did not award consortium damages to the wife for her in-hospital care
of her husband because the many tasks that she performed were merely duplicative of
the services that normal hospital nursing care would cover. See id. at 936 ("To award
[the wife] the wages of a nurse's aid for the period she spent in the hospital would
amount to a finding that the nursing care provided by [the hospital] was inadequate
. . . ."). The court did, however, award consortium damages to the wife for the care
of her husband after he was released from the hospital. In doing so, the court noted
the "physical burdens placed upon [the wife] by [her husband's] weakness following
his discharge from the hospital," id. at 936–37, including that her husband needed
assistance when showering upon his return home, id. at 932–33.
Both Helming and Pretre are cases in which the consortium spouse was forced
to take on additional duties, whereas here the consortium spouse (Calvin) lost a
service (lifting and adjusting) that the injured spouse (Paula) previously provided. As
we noted earlier, however, this distinction does not diminish the nature and character
of the services at issue. Health and hygiene services such as assisting a spouse when
showering or shaving are analogous to the lifting and adjusting that Calvin requires
to avoid developing pressure sores. Accordingly, in our view, Missouri law includes
Paula's "heavy lifting and adjustment" in the notion of consortium. See Riggs v.
Metcalf, 315 S.W.2d 791, 795 (Mo. 1958) ("[T]he word services 'implies whatever of
aid, assistance, comfort, and society the wife would be expected to render to or bestow
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upon her husband, under the circumstances and in the condition in which they may be
placed, whatever those may be.'" (emphasis added) (quoting Womach v. City of St.
Joseph, 100 S.W. 443, 448 (Mo. 1907))); see also Stahlheber v. Am. Cyanamid Co.,
451 S.W.2d 48, 63–64 (Mo. 1970) (suggesting that "future care" of an invalid wife
"who would require constant attention around the clock" be taken into account when
calculating her husband's consortium damages).
Dillard's argues that Wright v. Standard Oil Co., 470 F.2d 1280 (5th Cir. 1972),
compels a different result. In Wright, the Fifth Circuit allowed a wife–mother to
recover damages for the care that she provided to her son after her son was rendered
a paraplegic because of an accident. Id. at 1282, 1293. Notably, this recovery was not
based on loss of consortium, but rather was grounded on a separate legal interest. Id.
The wife's husband and boy's father, however, tried to claim his wife's care services
to their son as his own loss of consortium. Id. at 1286. The Wright court rejected this
claim: "[T]he argument that [the wife's] services [to their child] belong to her husband
falls of its own weight. . . . Her activities cannot be characterized as normal household
and domestic duties which by entering into the marriage she impliedly agreed to
perform without compensation." Id. at 1292–93.
Dillard's contends that Wright's holding regarding the husband's loss-of-
consortium claim is based on the type of services at issue, rather than the recipient of
the services. We disagree. The husband in Wright was not the direct beneficiary of
his wife's services to their child and thus was forced to rely on a conduit theory of
consortium. By contrast, Calvin is the direct beneficiary of Paula's lifting and
adjusting. The Wright court recognized this critical distinction when it stated that "the
general principle that a husband is entitled to his wife's services . . . [is based on] the
reciprocity of the marital relationship . . . . [and] should not be extended to govern
situations involving the husband–wife vis-a-vis third parties." Id. at 1293 n.20.
Regardless of Wright's holding, we note that the Fifth Circuit was applying
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Mississippi law, not Missouri law. See id. at 1285. Dillard's reliance on Wright is
thus misplaced.
For the reasons set forth above, we determine that Paula's "heavy lifting and
adjustment" of Calvin is within the realm of services encompassed by the notion of
consortium under Missouri law.
B.
The parties make much of the so-called "proportionality" requirement as
extracted from our prior opinion. See Kingman II, 643 F.3d at 617 ("[T]he Kingmans
have not cited any Missouri authority for the proposition that a consortium award may
exceed by a factor of five the damages awarded to the injured spouse. . . . [and] we do
not believe that state precedent foreshadows a disproportionately large consortium
claim of the sort awarded to Calvin by the district court."). Dillard's argues that "the
decision on remand was . . . unfaithful to this Court's 'proportionality' requirement,"
and "[e]ven if Calvin had established his right to some relief, the award of $250,000
did not comply with this Court's mandate." The Kingmans, on the other hand, argue
that the "creation of a 'proportionality' requirement flatly contravenes well-established
case law as reflected in Missouri" and, alternatively, if there is such a requirement, an
award of $250,000 was well within—and in fact, below—the proper amount owed.
As it relates to an action to recover for personal injury, "[a] consortium claim
is a separate, distinct, and personal legal claim, and is derivative only in the sense that
it must be occasioned by a spouse's injury." Thompson, 207 S.W.3d at 112 (citation
and internal quotation marks omitted). "Settlement of the underlying personal injury
claim by the injured spouse does not preclude the other spouse from maintaining an
action for loss of consortium against the tortfeasors in a separate suit," id. at 113, and
"the failure of one spouse to sue for injuries within the statute of limitations does not
bar a suit for loss of consortium that was timely filed," id. at 114 (citation and internal
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quotation marks omitted)); see also Bridges v. Van Enters., 992 S.W.2d 322, 325 (Mo.
Ct. App. 1999) ("[T]he loss of consortium claim continues to exist even if the injured
spouse settles his or her claim for personal injuries. The consortium claim survives
independently of the injured spouse's claim." (citing Shepherd v. Consumers Coop.
Assoc., 384 S.W.2d 635, 640 (Mo. 1964))).
Despite this separateness, we stated previously that where the injured spouse
does maintain a claim for damages, "there 'should be some reasonable relationship
between the size of a verdict awarded in a consortium action and that given [to] the
injured spouse,' and it would be a highly unusual case in which the consortium award
exceeded the damages award to the principal plaintiff." Kingman II, 643 F.3d at 618
(quoting Hodges v. Johnson, 417 S.W.2d 685, 693 (Mo. Ct. App. 1967)). As the
Kingmans point out, however, a more complete reading of Hodges tells us that
"[t]here should be some reasonable relationship between the size of a verdict awarded
in a consortium action and that given the injured spouse so that each will be congruent
with the particular facts and circumstances involved." 417 S.W.2d at 693 (emphasis
added). Without expressly saying so, our prior opinion recognized the fact-specific
nature of a consortium award by noting that "an invalid spouse might be entitled to a
greater recovery than a healthy spouse if his injured wife had previously been
undertaking a greater share of household services that are encompassed by the notion
of consortium." Kingman II, 643 F.3d at 618 (emphases added). Indeed, "we
predict[ed] that the Supreme Court of Missouri would permit a higher consortium
award when, as here, the uninjured spouse is an invalid." Id.
In fact, the Supreme Court of Missouri has affirmed a damages award to a
consortium spouse that was larger than the award to the principal injured spouse.
Gooch, 340 S.W.2d at 670. We note that in Gooch, however, the damages awards
were handed down by different juries in different trials. Still, the Supreme Court of
Missouri stated that "[t]he fact that one jury awarded a[n] [injured] wife less for her
injuries than another jury awarded the [consortium] husband in his separate action for
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expenses and for loss of services and society of his wife, does not, standing alone,
tend to substantiate the contention that the husband's verdict and judgment are
excessive." Id. (rejecting the defendants' argument to apply a "rule of reasonable
uniformity").
Other state courts have permitted awards for loss of consortium that were larger
than the awards to the principal injured spouse in certain circumstances as well. In
Clark v. Shoaf, a Tennessee appellate court affirmed a jury verdict awarding a
consortium spouse an amount one-and-a-half times greater than the injured party's
award. 209 S.W.3d 59, 60 (Tenn. Ct. App. 2006). Notably, Clark was decided under
the same legal framework that exists in Missouri regarding the relationship between
a claim for the principal injury and a corresponding claim for loss of consortium. See
id. at 61 ("[An] action for loss of consortium [in Tennessee] is derivative in that it
originates from or owes its existence to [the injured party's] claim for personal
injuries. However, a loss of consortium claim is separate from the original claim for
personal injuries. . . . It is a distinct cause of action." (citations omitted)). The
defendant in Clark argued that "the plaintiff seeking damages for loss of consortium
must demonstrate some especially great reliance on the plaintiff in the underlying
action in order to justify damages in excess of those awarded for the underlying
injury." Id. at 62. That is precisely the situation here, where Calvin, a quadriplegic,
is entirely dependent upon Paula for care. The Clark court found that there was not
material evidence to refute the jury's award to the consortium spouse, and affirmed the
consortium verdict of $30,000 (compared to $20,000 to the injured spouse).
Id. at 61–62.
In sum, our prior opinion did not foreclose awarding a consortium spouse a
higher damages award. We observed only that "state precedent [would not]
foreshadow[] a disproportionately large consortium claim," such as the $1 million
originally awarded to Calvin. Kingman II, 643 F.3d at 617 (emphasis added); see id.
("[W]e think it unlikely that, absent legislative action, the Supreme Court of Missouri
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would expand the concept of consortium to include a claim for lifetime professional
nursing services that vastly exceeds the underlying award to the injured spouse."
(emphasis added)); id. at 615 ("[W]e agree with Dillard's that current Missouri law
does not contemplate an unlimited consortium claim of the sort awarded to Calvin by
the district court." (emphasis added)). The district court properly understood this
limitation on remand. See Kingman III, 835 F. Supp. 2d at 735 ("I will avoid an
amount greatly out of line with the personal injury recovery of Mrs. Kingman."
(emphasis added)); id. at 735–36 (characterizing Kingman II as prohibiting "a
recovery [for loss of consortium] greatly in excess of the recovery by the injured
party" (emphasis added)). Considering the unique circumstances of this case and the
impact that Paula's injury has upon Calvin, we hold that the district court's award of
$250,000 is not inconsistent with our prior opinion or, in our view, in conflict with
Missouri law. See Kingman II, 643 F.3d at 617 (noting that "the extent of the
uninjured spouse's recovery for loss of consortium 'depends, in large measure,' upon
the extent of the injured spouses injuries"—not the injured spouse's award (emphasis
added) (quoting State ex rel. St. Louis Pub. Serv. Co. v. McMullan, 297 S.W.2d 431,
436 (Mo. 1956) (en banc))).
We turn now to whether there is sufficient evidence in the record to support the
specific award amount.
C.
The district court's $250,000 award on remand was premised on the rationale
that "[p]aying for professional nursing for two four-hour segments [per day] . . . would
relieve Mrs. Kingman of some nursing activities that she is quite capable of
performing," and that "[s]upplementary nursing is only needed for heavy lifting and
adjustment, with available lifts." Kingman III, 835 F. Supp. 2d at 736. The district
court recognized that "[t]he compensation for that limited service, if obtainable
separately, would be very much less than the full charges for nursing." Id.
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The Kingmans continue to assert, however, that "all of [Calvin's] personal
care/hygiene tasks require replacement care or the assistance of a replacement
caregiver." This claim is refuted by the Kingmans' own Life Care Plan and Cost
Analysis for Paula Kingman ("Life Care Plan"), on which the Kingmans based their
damages amounts. The Life Care Plan states plainly that "Mrs. Kingman is . . . able
to perform [Calvin's] bowel program" and she "can certainly continue to help [Calvin]
with tasks such as medication administration, food preparation and set-up assistance
for feeding, and other similar assistance that is less strenuous [on her shoulder]." The
only tasks that the record shows that Paula can no longer perform are "assistance with
repositioning, transfers, and pressure relief maneuvers that are required multiple times
throughout each day."
The Life Care Plan nevertheless calls for an average of ten hours per day of care
for Calvin because "[i]t is not feasible or cost effective for certified nurse aides or
other attendants to make multiple visits throughout the day to attend to those aspects
of care that Mrs. Kingman should avoid doing due to lifting restrictions, pain and
shoulder impairment." While we recognize that such a practice may not be ideal, it
would, in our view, be a windfall to the Kingmans were Dillard's forced to pay
multiple aids to sit idle for long periods of time throughout the day, save for the
occasional lifting or adjustment of Calvin. We reiterate that loss of consortium is
meant to compensate a spouse only for services actually lost or required to be taken
up as the result of an injury, and should not in this case relieve Paula of those tasks
that she is still capable of performing for Calvin. See Hodges, 417 S.W.2d at 691–93
(reducing consortium spouse's damages in part based on a lack of evidence that certain
services or affection were actually diminished as a result of the injury).
Although the district court did not employ any mathematical analysis to arrive
at its new consortium award amount, we do not believe that a seventy-five percent
reduction in Calvin's award based on the limited services that Paula can no longer
perform was clearly erroneous.
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III. Conclusion
For the reasons set forth above, we affirm the district court's $250,000 award
to Calvin Kingman for loss of consortium.3
______________________________
3
Prior to oral argument, Dillard's moved to strike Part I of the Kingmans' Reply
Brief on the ground that it violates Federal Rule of Appellate Procedure 28.1(c)(4);
that motion is granted. Subsequent to oral argument, the Kingmans moved for leave
to file a supplemental letter brief; that motion is denied.
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