Richardson v. Boddie-Noell Enterprises, Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ERNEST E. RICHARDSON, 
Plaintiff-Appellee,
v.
BODDIE-NOELL ENTERPRISES,  No. 03-1011
INCORPORATED, d/b/a Hardee’s of 33
& Main Street,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Norman K. Moon, District Judge.
(CA-01-32)
Argued: September 25, 2003
Decided: October 27, 2003
Before WILLIAMS and SHEDD, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Jim Harold Guynn, Jr., GUYNN & MEMMER, P.C.,
Roanoke, Virginia, for Appellant. Thomas Winfield Williamson, Jr.,
WILLIAMSON & LAVECCHIA, L.C., Richmond, Virginia, for
Appellee. ON BRIEF: C. Kailani Memmer, GUYNN & MEMMER,
P.C., Roanoke, Virginia, for Appellant. John E. Davison, DAVISON
& KITZMAN, Charlottesville, Virginia, for Appellee.
2 RICHARDSON v. BODDIE-NOELL ENTERPRISES
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
This appeal arises from a simple slip-and-fall negligence action.
After a trial, a jury awarded Ernest E. Richardson $647,000 in com-
pensatory damages for injuries that he sustained when he fell on a wet
tile floor in a Hardee’s restaurant owned by Boddie-Noell, Incorpo-
rated. Boddie-Noell appeals several of the district court’s rulings. We
affirm.
I.
On July 25, 2000, Richardson slipped on some wet tile in the
entrance of a Hardee’s restaurant in Louisa, Virginia. Richardson fell
and severely injured his back and left shoulder. Richardson filed suit
in Virginia state court, and Boddie-Noell removed the case to the
United States District Court for the Western District of Virginia,
based on the parties’ diverse citizenship. See 28 U.S.C.A. §§ 1332(West 1993), 1441 (West 1994).1
During voir dire, Richardson used all four of his peremptory chal-
lenges to exclude men from the venire. Boddie-Noell objected, claim-
ing that Richardson was unconstitutionally striking men from the
venire solely because of their gender. At the district court’s request,
Richardson offered gender-neutral explanations for the use of his
challenges. Richardson explained that he challenged two of the men
because they were engineers, who, in his experience, tend to recreate
evidence rather than evaluate the evidence produced at trial. He chal-
lenged a third man because the man had once slipped and fallen in the
parking lot of a business without commencing a lawsuit. The final
1
Richardson is a citizen of Virginia. Boddie-Noell is a North Carolina
corporation with its principal place of business in North Carolina. (J.A.
at 15.)
RICHARDSON v. BODDIE-NOELL ENTERPRISES 3
challenge was against a man who did not make eye contact with trial
counsel and who seemed disinterested in the proceedings. Boddie-
Noell alleged that these reasons were pretextual but presented no evi-
dence of pretext except that Richardson had challenged only men.
The district court accepted Richardson’s explanations and allowed the
case to proceed to trial, stating that "nongender reason[s] [had been]
given."
In a pretrial order, the district court granted Boddie-Noell partial
summary judgment, ruling that Richardson could not recover dam-
ages for lost profits from his genetic cattle business or for a diminu-
tion in the sale price of his tractor business, because those damages
were not proximately caused by his fall. During the trial, when
Boddie-Noell was presenting its defense, a Boddie-Noell employee
testified that he had placed an orange cone in the area of the accident
before mopping it. The district court had earlier sustained an objec-
tion and refused to let Richardson testify that he had observed the
Boddie-Noell employee place a warning sign in the area of the acci-
dent after his fall. In rebuttal, Richardson renewed his effort to admit
that testimony. Boddie-Noell again objected, but this time the district
court overruled the objection and allowed the testimony. The district
court gave the jury the following limiting instruction:
I caution you that the evidence at this point is admitted only
insofar as it goes to the credibility of previous — maybe it
would go to whether previous witnesses were telling the
truth. It may not be considered by you as evidence that there
was any danger out there or not. You can only consider
whether or not you use this evidence coming in now as to
whether a previous witness was telling the truth, and it has
to do with when the cones were there.
You can’t decide the cones were not there based on this
evidence.
(J.A. at 185-86.)
During the course of the trial, Boddie-Noell also objected to testi-
mony related to Richardson’s inability to work at his tractor business
and his farm. The district court excluded evidence related to Richard-
4 RICHARDSON v. BODDIE-NOELL ENTERPRISES
son’s loss of income, but allowed Richardson to testify about the vari-
ous physical activities that he no longer could perform.
Richardson’s counsel made several procedural errors during the
trial, made inappropriate comments and gestures in the presence of
the jury, and attempted to elicit inadmissible testimony from multiple
witnesses. The district court repeatedly reprimanded Richardson’s
trial counsel for his inappropriate behavior and instructed the jury to
disregard counsel’s inappropriate questions and comments. At one
point, Boddie-Noell moved for dismissal because of Richardson’s
counsel’s misconduct. The district court apparently took the motion
under advisement, without ruling on it, and the trial continued.
After the jury returned its verdict for Richardson, Boddie-Noell
moved for a new trial, relief from the verdict, and renewed its motion
for dismissal of the action, alleging that Richardson’s misconduct had
inflamed the jury. Boddie-Noell also alleged that the damage award
was excessive. The district court denied the motions, and Boddie-
Noell now appeals to this court. We have jurisdiction to hear Boddie-
Noell’s appeal from the district court’s final judgment. 28 U.S.C.A.
§ 1291 (West 1993). We address each of Boddie-Noell’s arguments
in turn.
II.
A.
Boddie-Noell first requests a new trial on the basis that Richardson
used his peremptory challenges to remove only men from the venire
in violation of Boddie-Noell’s constitutional rights as recognized in
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 130-31 (1994). See
United States v. Tipton, 90 F.3d 861, 881 (4th Cir. 1996) (recognizing
that Fifth Amendment provides comparable protections in federal
court); Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 623-
27 (1991) (holding that private litigants in civil cases may not use
peremptory challenges in a discriminatory manner). Because J.E.B. is
based on the same logic and reasoning as Batson v. Kentucky, 476
U.S. 79 (1986), our cases addressing Batson claims are instructive
here.
RICHARDSON v. BODDIE-NOELL ENTERPRISES 5
We have held that once a litigant offers a legitimate gender-neutral
explanation for the use of his peremptory strikes, the burden lies with
the party challenging the strikes "to show both that these reasons were
merely pretextual and that [gender] was the real reason for the strike."
United States v. McMillon, 14 F.3d 948, 953 (4th Cir. 1994).
"A trial court’s determination regarding the exercise of a peremp-
tory challenge for allegedly . . . discriminatory reasons is accorded
great deference on appeal." Davis v. Baltimore Gas & Elec. Co., 160
F.3d 1023, 1026-27 (4th Cir. 1998). "In the typical peremptory chal-
lenge inquiry, the decisive question will be whether counsel’s
[gender]-neutral explanation for a peremptory challenge should be
believed." Hernanzdez v. New York, 500 U.S. 352, 365 (1991) (plural-
ity opinion). Assessing the credibility of a litigant’s gender-neutral
explanation is "peculiarly within the trial judge’s province." Id.;
accord McMillon, 14 F.3d at 953. Accordingly, we will not disturb a
district court’s Batson ruling unless it is clearly erroneous. Davis, 160
F.3d at 1026.
In this case, Boddie-Noell asserts that the district court clearly
erred when it denied Boddie-Noell’s challenge to Richardson’s use of
his peremptory strikes. Upon a review of the record, we disagree.
After following the requisite procedure, the district court accepted
Richardson’s gender-neutral explanations as non-pretextual. Boddie-
Noell points to nothing in the record, other than the statistical fact that
Richardson challenged only men, to support its assertion that a con-
trary finding was required. Given Boddie-Noell’s inability to produce
evidence demonstrating that gender-based discrimination was the
motivating force for the strike, the district court’s rejection of the dis-
crimination challenge was not clearly erroneous. See McMillon, 14
F.3d at 953.2
2
In the alternative, Boddie-Noell asserts that the district court’s ruling
was incomplete, because "the District Court failed to make appropriate
findings." (Appellants Br. at 11.) Apparently, Boddie-Noell would have
liked the district court to rule "individually" on each gender-neutral
explanation offered by Richardson and make explicit factual findings
with respect to each. Put simply, Boddie-Noell wanted the district court
to use more words when it ruled on its challenge. We find no reversible
error in the district court’s concise ruling. The court’s statement clearly
articulated its rationale — it believed Richardson’s proffered "nongender
reason[s]." (J.A. at 45.)
6 RICHARDSON v. BODDIE-NOELL ENTERPRISES
B.
Boddie-Noell next argues that the district court made two separate
evidentiary errors. We review a district court’s rulings on the admissi-
bility of evidence for abuse of discretion. United States v. Whitting-
ton, 26 F.3d 456, 465 (4th Cir. 1994).
Boddie-Noell first claims that the district court erred by allowing
Richardson to testify that he observed a Boddie-Noell employee plac-
ing a warning sign in the area where he had fallen after the accident.
They argue that this evidence of a subsequent remedial measure was
offered to prove that Boddie-Noell was negligent, and thus should
have been excluded under Federal Rule of Evidence 407. Rule 407
prohibits the admission of evidence of remedial measures taken after
an accident "to prove negligence, culpable conduct, . . . or a need for
a warning or instruction." Fed. R. Evid. 407. Such evidence is admis-
sible, however, if "offered for another purpose, such as . . . impeach-
ment." Id.Boddie-Noell’s argument ignores the limiting instruction given by
the court prior to Richardson’s testimony. The court admonished the
jury that it could consider the evidence only to determine "whether
previous witnesses were telling the truth," and not as evidence of
whether "there was any danger out there or not." Rule 407 explicitly
endorses the admission of evidence of subsequent remedial measures
for impeachment purposes, and Richardson’s testimony clearly
impeached the testimony of a Boddie-Noell employee who claimed
to have installed a warning cone before Richardson fell. As "[w]e
must presume that the jury heeded [the limiting] instruction," United
States v. Silva, 745 F.2d 840, 844 (4th Cir. 1984), we hold that the
district court’s admission of Richardson’s testimony for impeachment
purposes was not an abuse of discretion.
Boddie-Noell also avers that the district court improperly admitted
irrelevant and prejudicial evidence of Richardson’s inability to per-
form certain work-related activities. Richardson testified about his
inability to perform various physical activities, such as breaking cattle
and loading and unloading tractors from the back of a truck, since the
accident. (J.A. at 78-79.) Boddie-Noell argues that this testimony was
irrelevant because it only showed economic losses to Richardson’s
RICHARDSON v. BODDIE-NOELL ENTERPRISES 7
tractor and genetic cattle businesses, losses that the district court
excluded as items of damage in a summary judgment. This argument
has no merit. Richardson’s testimony tended to show the extent of his
physical injuries and his mental suffering, both of which are appropri-
ate items of damage under Virginia law. See, e.g., Chesapeake &
Potomac Tel. Co. of Va. v. Carless, 102 S.E. 569, 572 (Va. 1920).
The testimony was thus clearly relevant, see Fed. R. Evid. 401, and
had little tendency, if any, to result in "unfair prejudice, confusion of
the issues, or misleading the jury." Fed. R. Evid. 403. The district
court therefore did not abuse its discretion by finding as much.
C.
Boddie-Noell also challenges the district court’s denial of its
motion to dismiss Richardson’s claim because of his attorney’s mis-
conduct at trial. Federal Rule of Civil Procedure 41(b) gives district
courts the power to involuntarily dismiss an action "[f]or failure of the
plaintiff . . . to comply with [the Federal R]ules [of Civil Procedure]
or any order of court." Fed R. Civ. P. 41(b). We have noted that invol-
untary dismissal under Rule 41(b) "is such a harsh sanction . . . [that]
it should be resorted to only in extreme cases." McCargo v. Hedrick,
545 F.2d 393, 396 (4th Cir. 1976) (quotation marks omitted). We thus
require a district court to consider four factors when deciding whether
to involuntarily dismiss an action for attorney misconduct. Id. First,
the court must consider the "degree of personal responsibility on the
part of the plaintiff." Id. Second, it must determine the "amount of
prejudice to the defendant." Id. Third, it must look to the record to see
if it indicates "a drawn out history of deliberately proceeding in a dil-
atory fashion." Id. Finally, the court must consider whether "sanctions
less drastic than dismissal" will be effective. Id. Applying these fac-
tors, the district court concluded "that this case is not a situation
which warrants the severe sanction of involuntary dismissal." (J.A. at
203.) We review a district court’s denial of a Rule 41(b) motion to
dismiss for abuse of discretion. See McCargo, 545 F.2d at 396.
Richardson’s trial counsel admitted that he did not "know the Fed-
eral Rules of Civil Procedure, or the Federal Rules of Evidence, as
well as [he] should." (J.A. at 200). We agree with the district court
that counsel’s errors were "frustrating," to say the least. (J.A. at 203).
Despite the bungling, Richardson’s trial counsel’s misconduct was
8 RICHARDSON v. BODDIE-NOELL ENTERPRISES
not so egregious as to warrant the severe sanction of dismissal. See
McCargo, 545 F.3d at 396. The district court reprimanded Richard-
son’s counsel after each misstep, and when necessary, instructed the
jury to disregard his inappropriate questions and comments. The dis-
trict court concluded that, by taking these actions, it had "adequately
dealt with counsel’s behavior," (J.A. at 203), and we agree. District
Judge Moon did an extraordinary job of dealing with a difficult attor-
ney, and, rather than demonstrating an abuse of discretion, his rulings
and admonitions demonstrate an admirable balance of sternness and
patience. We hold that the district court did not abuse his discretion
by using "sanctions less drastic than dismissal" to remedy Richard-
son’s trial counsel’s misconduct. See McCargo, 545 F.3d at 396.
D.
Boddie-Noell also assigns as error the district court’s refusal to
relieve it from the jury’s verdict in light of the misconduct of Richard-
son’s counsel. Federal Rule of Civil Procedure 60(b)(3) gives district
courts the power to relieve a party from an adverse judgment because
of "fraud . . . misrepresentation, or other misconduct of an adverse
party." Fed. R. Civ. P. 60(b)(3). To prevail on a Rule 60(b)(3) motion,
"the moving party must have a meritorious defense; . . . the moving
party must prove misconduct by clear and convincing evidence; and
. . . the misconduct [must have] prevented the moving party from
fully presenting its case." Schultz v. Butcher, 24 F.3d 626, 630 (4th
Cir. 1994). For example, we have granted Rule 60(b)(3) motions in
cases in which one party failed to produce evidence essential to an
adversary’s position. See id.; Green v. Foley, 856 F.2d 660 (4th Cir.
1988); Square Constr. Co. v. Wash. Metro. Area Transit Auth., 657
F.2d 68 (4th Cir. 1981). We review a district court’s denial of a Rule
60(b)(3) motion for abuse of discretion. Schultz, 24 F.3d at 630.
The district court properly refused to relieve Boddie-Noell from the
jury’s verdict. Although Richardson’s counsel behaved inappropri-
ately, his misconduct did not prevent Boddie-Noell from fully pre-
senting its case. See Schultz, 24 F.3d at 630. In short, the district court
properly concluded that Richardson’s misconduct was not the type
that justifies relief under Rule 60(b)(3), because it did not "metaphori-
cally tie one hand behind the back of the defendant." (J.A. at 204-
205.)
RICHARDSON v. BODDIE-NOELL ENTERPRISES 9
E.
Finally, Boddie-Noell contends that the district court erred by
refusing to set aside the jury’s verdict as excessive and order a new
trial. Because Virginia substantive law governed Richardson’s claim
for relief, we also apply Virginia law to determine whether the jury
award was excessive. Gasperini v. Ctr. for Humanities, 518 U.S. 415,
437-438 (1996); Steinke v. Beach Bungee, Inc., 105 F.3d 192, 197
(4th Cir. 1997). "[C]ourts of appeals engage in review of district court
excessiveness determinations applying ‘abuse of discretion’ as their
standard." Gasperini, 518 U.S. at 435.
Under Virginia law, jury verdicts are excessive if they "‘shock the
conscience of the court and . . . create the impression that the jury has
been influenced by passion, corruption or prejudice, or has miscon-
ceived or misunderstood the facts or the law, or if the award is so out
of proportion to the injuries suffered to suggest that it is not the prod-
uct of a fair and impartial decision.’" Norfolk Beverage Co. v. Cho,
259 Va. 348, 354 (2000) (quoting Smithey v. Sinclair Refining Co.,
122 S.E.2d 872, 875-76 (Va. 1961)). "‘If the verdict merely appears
to be large and more than the trial judge would have awarded had he
been a member of the jury, it ought not to be disturbed, for to do so
the judge must then do what he may not legally do, that is, substitute
his judgment for that of the jury.’" Id. (quoting Smithey, 122 S.E.2d
at 875-76). "[T]here is no exact method by which to measure and
value in monetary terms the degree of pain and anguish of a suffering
human being, and, unless the jury’s verdict is so great as to indicate
its judgment was actuated by partiality or prejudice, the court should
not disturb the verdict." Virginia Elec. and Power Co. v. Dungee, 520
S.E.2d 164, 180 (Va. 1999).
In light of Richardson’s injuries, we cannot say that the district
court abused its discretion by finding that the jury’s verdict did not
shock its conscience. At trial, the evidence demonstrated that Rich-
ardson had permanently lost some range of motion in his arm. Rich-
ardson testified that he had been in constant, substantial pain since the
fall and was planning on having corrective surgery because he could
no longer deal with the pain. The surgery would leave him unable to
engage in strenuous physical activity and unable fully to turn his
10 RICHARDSON v. BODDIE-NOELL ENTERPRISES
head. Richardson is no longer able to work in the tractor business or
to raise and break cattle.
Although we recognize that the verdict in this case is substantial,
our job is not to review the record and come to an independent con-
clusion about how much damage Richardson sustained. The district
court was not permitted to "substitute [its] judgment for that of the
jury," Norfolk Beverage, 522 S.E.2d at 290, and neither are we. In
light of the Virginia Supreme Court’s recent decision upholding a jury
verdict of $20,000,000 in favor of a burn victim who had incurred no
medical expenses,3 the jury’s $647,000 verdict in this case "is [not]
so great as to indicate its judgment was actuated by partiality or preju-
dice." Virginia Elec., 520 S.E.2d at 180; see also Salih v. Lane, 423
S.E.2d 192, 197 (1992) (upholding a compensatory damage award of
$1,200,000 to a woman who suffered "irreparable damage to some of
the nerves that c[a]me out of [her] neck and [went] . . . down into
[her] arm" and heart arrhythmia). We conclude that the district court
did not abuse its discretion in finding that the award was not exces-
sive.
III.
For the foregoing reasons, we affirm the judgment of the district
court.
AFFIRMED
3
The Shriner’s hospital treated the victim at no charge. Virginia Elec.
and Power Co. v. Dungee, 520 S.E.2d 164, 180 (Va. 1999).