"Beverly" v. Diamond Trans

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
"BEVERLY",BY HER GUARDIAN, JOHN
DOE,
Plaintiff-Appellee,
v. No. 98-2230
DIAMOND TRANSPORTATION SERVICES,
INC.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CA-97-1597-A)
Argued: April 6, 1999
Decided: June 1, 1999
Before WILKINSON, Chief Judge, and WILKINS and
HAMILTON, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Mark Elliott Solomons, ARTER & HADDEN, L.L.P.,
Washington, D.C., for Appellant. David William Goewey, VEN-
ABLE, BAETJER, HOWARD & CIVILETTI, L.L.P., Washington,
D.C., for Appellee. ON BRIEF: Lawrence C. Renbaum, Gregory S.
Feder, ARTER & HADDEN, L.L.P., Washington, D.C.; Alan S.
Block, GILBERG & KIERNAN, Washington, D.C., for Appellant.
Kenneth C. Bass, III, Martin L. Saad, VENABLE, BAETJER, HOW-
ARD & CIVILETTI, L.L.P., Washington, D.C., for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
A jury found that the negligence of Diamond Transportation Ser-
vices caused the rape of a mentally retarded woman and awarded $3
million in compensatory damages. Diamond appeals the district
court's order denying its motion for a new trial. Finding that the dis-
trict court did not abuse its discretion, we affirm.
I.
This case grows out of the rape of "Beverly," a 55-year-old men-
tally retarded woman with the mental capacity of a six to eight year
old child. Beverly worked as a housekeeper for three and one half
hours a day at Fort Belvoir in Virginia.
To travel to work, Beverly rode a bus operated by appellant Dia-
mond Transportation Services. Diamond provided transportation ser-
vices under the name "Metro Access" under a three year, $2.7 million
contract with the Washington Metropolitan Area Transit Authority
(WMATA). Pursuant to that contract, Diamond transported handi-
capped individuals in Northern Virginia.
In May 1996 Mujahid Nasiruddin applied to Diamond for a posi-
tion as a bus driver. He was hired the day he applied, without a crimi-
nal background check or a former employer reference check. These
checks, however, were requirements of Diamond's hiring policy and
its contract with WMATA.
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Had Diamond completed a background check, it would have found
that Nasiruddin was a convicted felon just out of prison. His back-
ground included convictions in the past decade for conspiracy to com-
mit robbery, felony robbery, possession of marijuana, reckless
driving, and concealment of a firearm.
In the months preceding the rape of Beverly, Nasiruddin was writ-
ten up for almost a dozen disciplinary offenses, including threatening
passengers. Nevertheless, he was retained by Diamond as a bus
driver.
On December 17, 1996, Nasiruddin picked up Beverly in a Dia-
mond bus at her home and drove her to Fort Belvoir. She was the only
passenger on the bus. Several hundred yards from her stop Nasiruddin
pulled the bus over, got up, and approached Beverly. He then raped
her.
Beverly then went to work and returned home. After she told her
father what had happened, he took her to the emergency room. Dr.
Paul Duch examined her. He testified that Beverly's vaginal area was
"reddened and swollen" with "small cuts in the skin." Duch concluded
that Beverly's condition indicated that she was a virgin prior to the
rape. He found no other evidence of physical trauma. Duch also stated
that Beverly was "anxious and uncomfortable" whenever he tried to
discuss what had happened on the bus. Later, Beverly told military
investigators that she was afraid of Nasiruddin and that he had hurt
her.
In September 1997 Nasiruddin was convicted of the aggravated
sexual abuse of Beverly.
Beverly's father filed suit on her behalf against Diamond for the
negligent hiring and retention of Nasiruddin. At trial, Beverly testified
that the rape "seemed nasty" to her and she was afraid. She also stated
that Nasiruddin "hurt" her, and she "can't get over it" and is "sad."
Beverly's own expert, Dr. Lee Richmond, testified that Beverly
suffers from post-traumatic stress disorder and experiences flash-
backs, chronic depression, and shame and confusion. She opined that
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Beverly was devastated and that her pain will only worsen because
her mental impairment prevents her from participating in counseling.
Beverly's coworker of fourteen years testified that Beverly is "not
as confident as she was before the rape" and that she "seems to have
gone downhill." Additionally, she stated that Beverly "needs a lot of
help" to cope with her job after the rape.
Diamond's own expert, Dr. Richard Ratner, acknowledged that
Beverly suffered emotional distress. He stated that the memory of the
rape, along with her mother's death, is the most grievous event in her
life.
Diamond argued that Beverly continues to work a normal schedule
and suffered no pecuniary damages or lost wages. Her own father tes-
tified that her routines around the house have not changed since the
rape -- she continues to help out. The parties stipulated that Beverly's
life expectancy was 27 years.
The jury returned a verdict of $3 million in compensatory damages
for pain and suffering. Diamond then moved for remittitur or a new
trial, arguing the award was excessive and against the weight of the
evidence. The district court denied the motion. Diamond appeals.
II.
Diamond challenges the district court's denial of its motion for a
new trial. Because this case involves a tort on military property, state
law furnishes the applicable substantive law. 16 U.S.C. § 457. And
when state law applies, it also provides the substantive new trial
motion standard. Gasperini v. Center for Humanities, Inc., 518 U.S.
415 (1996). Thus, Virginia law governs the consideration of the new
trial motion in this case.
Virginia law provides that "A new trial may be granted as well
where the damages awarded are too small as where they are exces-
sive." Va. Code Ann. § 8.01-383 (Michie 1992). The Virginia
Supreme Court has explained that the
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Circumstances which compel setting aside a jury verdict
include a damage award that is so excessive that it shocks
the conscience of the court, creating the impression that the
jury was influenced by passion, corruption, or prejudice;
that the jury misconceived or misunderstood the facts or the
law; or, the award is so out of proportion to the injuries suf-
fered as to suggest that it is not the product of a fair and
impartial decision.
Poulston v. Rock, 467 S.E.2d 479, 481 (Va. 1996); accord Transilift
Equip., Ltd. v. Cunningham, 360 S.E.2d 183, 191 (Va. 1987);
Williams Paving Co. v. Kreidl, 104 S.E.2d 758, 764 (Va. 1958).
Diamond contends that the verdict excessively compensated Bev-
erly because her life has not changed in any meaningful way. It notes
that Beverly returned to her job the day after the rape, continues to
perform household tasks, suffered no lasting physical injuries, and
still takes Diamond's bus to work every day. Diamond argues that in
light of this impact, the district court erred by failing to explain why
the verdict was not excessive.
We disagree. A host of evidence presented at trial demonstrated
that Beverly was profoundly affected by the rape. She testified that
she was "hurt" and "sad" and that she"can't get over it." Dr. Rich-
mond testified that Beverly suffers from post-traumatic stress disorder
and that her pain will worsen with time because her mental impair-
ment does not allow her to verbalize her problems or participate in
counseling. Beverly's long-time coworker testified that she has gone
"downhill" since the rape and now needs a lot of assistance at work
that she had not needed prior to her rape.
In the order denying the motion for a new trial, the district court
considered the lack of tangible economic harm to Beverly and the
limited nature of her life activities. Still, the court stated that it "can-
not say that $3 million is too much for the anguish plaintiff has suf-
fered and will continue to suffer due to her attack. Further, the award
should not be diminished on the basis that [Beverly], because of her
mental condition, suffered any less than someone without her mental
impairment." Finally, the court concluded that though it "is unable to
determine with certainty what would be an excessive award for the
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rape of a mentally impaired, 55-year-old woman who had never
before had sexual relations, the court feels quite comfortable finding
that $3 million does not reach that threshold." Given the evidence
presented at trial and the district court's reasoning, we hold that the
court did not abuse its discretion by finding that the verdict fails to
"shock the conscience."
In a final effort to disturb the jury's verdict, Diamond argues the
district court failed to look at verdicts in comparable Virginia cases.
It contends that this court's decision in Steinke v. Beach Bungee, Inc.,
105 F.3d 192, 197-98 (4th Cir. 1997), requires this examination and
an explicit comparison of those cases to the case at hand.
Steinke, of course, was a case governed by South Carolina law.
Virginia law has discouraged looking at comparative cases. See
Williams Paving Co., 104 S.E.2d at 764. Even assuming arguendo,
however, that the trial court erred by not looking at comparable cases,
Diamond invited that error. "It has long been recognized that ``a court
can not be asked by counsel to take a step in a case and later be con-
victed of error, because it has complied with such request.'" United
States v. Herrera, 23 F.3d 74, 75 (4th Cir. 1994) (quoting Shields v.
United States, 273 U.S. 583, 586 (1927)). Invited error doctrine rec-
ognizes that a party may not complain of a judicial error that it
induced or approved. See United States v. Lawrence, 161 F.3d 250,
255 (4th Cir. 1998), cert. denied, 119 S. Ct. 1279 (1999); United
States v. Mahler, 141 F.3d 811, 814-15 (8th Cir.), cert. denied, 119
S. Ct. 197 (1998).
In its brief in support of its motion for a new trial, Diamond never
indicated that the trial court should look to comparable cases in Vir-
ginia state courts. In fact, far from contending that an examination of
state court comparators was required, Diamond erroneously took the
position that federal law provided the standard for granting a new trial
in this case. Only after Beverly's brief in response suggested that the
court look to state comparators did Diamond even mention compara-
ble cases. And then, it did so while casting doubt upon the utility and
necessity of such a comparison. Diamond's reply brief only offered
comparable cases "[a]ssuming arguendo that the Court will look to
other cases in its evaluation of this case." Given Diamond's initial
silence and subsequent skepticism regarding comparators, it cannot be
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heard to complain that the trial court failed to distinguish this case
from comparable cases in Virginia state court.
For the foregoing reasons, the judgment of the district court is
hereby
AFFIRMED.
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