* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 98-60477

Summary Calendar

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FRANCIS RAWLINGS,

Plaintiff-Appellant,

VERSUS

NATIONAL PIZZA COMPANY,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Mississippi

(3:97-CV-278-L-N)

_________________________

May 4, 1999

Before SMITH, WIENER, and PARKER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Francis Rawlings appeals on the ground that the jury verdict

returned in his favor is insufficient and that the district court

erred in using a modified Allen charge instructing the jury to

continue deliberations. We affirm.

I.

A driver for National Pizza Company (“NPC”) hit Rawlings in a
 

1 Rawlings also sued the driver of the vehicle, but the parties settled

before trial.

2

side-impact collision. Before the accident, Rawlings appeared to

be in fine health. He worked in a physically demanding job and

maintained a vigorous exercise regimen. After the accident, he

began experiencing pain in his neck and back. He saw a physician

practicing family medicine, Dr. Willie MacArthur, who began

treating him for muscle spasms and pain. When the pain did not go

away, he saw Dr. Katharine A. Thompson, who diagnosed a bulging

disc, causing numbness, pain and decreased motor strength. She

also detected scoliosis. Rawlings incurred medical expenses

exceeding $16,000.

Rawlings brought suit in state court against NPC,1 which

removed to federal court. He sought damages for his medical

expenses, future disability, and pain and suffering. At trial,

Dr. Thompson stated that, in her opinion, the pain and injuries

stemmed from the accident.

NPC did not contest its responsibility for the driver but

argued that it was not liable for Rawlings's medical problems.

Dr. Robert A. McGuire, an orthopedic surgeon at the University

Medical Center in Jackson, Mississippi, saw Rawlings once for an

independent medical exam. He testified that, unlike Thompson, he

believed Rawlings's problems had degenerative roots and the car

accident did not cause them and, at most, aggravated them.

The jury reported that it was deadlocked. The court gave a

modified Allen instruction directing it to continue deliberating,
3

whereupon the jury awarded $20,000.

II.

A.

Rawlings contends that the court should have granted his

motion for a new trial because the verdict is against the great

weight of the evidence. He suggests that the verdict indicates the

jury found NPC liable but that, because he incurred over $16,000 in

uncontradicted medical expenses, the jury obviously awarded

insufficient damages for future disability and pain and suffering.

He contends that the jury must have reached an impermissible

compromise verdict, meriting a new trial.

The district court has discretion to grant a new trial for an

inadequate verdict, but only if the verdict is against the great

weight, not merely the preponderance, of the verdict. See Jones v.

Wal-Mart Stores, Inc., 870 F.2d 982, 986 (5th Cir. 1989). This

high standard protects the jury's domain. Indeed, a court should

not invade the jury's province to determine damages unless an award

is shockingly inadequate. See Taylor v. Green, 868 F.2d 162, 164

(5th Cir. 1989).

We will not reverse the denial of a motion for a new trial

absent “a clear showing of abuse of discretion.” Hidden Oaks Ltd.

v. City of Austin, 138 F.3d 1036 (5th Cir. 1998). In fact, our

review is even more deferential to the district court when, as
 

2 See Jones, 870 F.2d at 982; Ham Marine, Inc. v. Dresser Indus., Inc.,

72 F.3d 454, 462 (5th Cir. 1995) (“Moreover, review and approval of the verdict by

the trial judge tips the scale even more heavily against appellate

reconsideration.”).

 

3 See also Haywood v. Collier, 724 So. 2d 1105, 1109 (Miss. App. 1998)

(affirming denial of additur/new trial where verdict less than compensatory

damages, relying in part on evidence of plaintiff's pre-existing condition). The

cases on which Rawlings relies are not to the contrary. In Pham v. Welter,

542 So. 2d 884 (Miss. 1989), the court granted additur to an inadequate award.

But the injuries undoubtedly stemmed from the car accident; the only question was

who was responsible for that accident. See id. at 887-89. By finding the

4

here, it agrees with the jury.2 To succeed, Rawlings must

“demonstrate an absolute absence of evidence to support the jury's

verdict, thus indicating that the trial court had abused its

discretion in refusing to find the jury's verdict contrary to the

great weight of the evidence.” Hidden Oaks, 138 F.3d at 1049

(quotations omitted).

Rawlings has not carried this burden. He relies primarily on

the fact that the total damages barely exceeds his compensatory

damages. He claims this indicates an inconsistency between the

jury's finding of liability on NPC's part and its assessment of

damages, an inconsistency that must have resulted from a compromise

among jurors to reach a verdict.

We disagree. Dr. McGuire testified that he believed the pain

stemmed from a pre-existing degenerative condition. But this

testimony did not demand an all-or-nothing verdict. McGuire

explicitly left open the possibility that the accident had

aggravated this condition. The jury could have found that the

accident accelerated or magnified the condition's painful symptoms

but was by no means its sole cause. Such a finding would result in

awarding partial damages, even without a compromise verdict.3 This
defendant liable, the jury could not ignore the substantial evidence of damages

and award only part of them. Id. at 889. In James v. Jackson, 514 So. 2d 1224,

1227 (Miss. 1987), the court affirmed an additur, but that is a situation much

different from the instant one. Furthermore, the jury's verdict was less than

a quarter of the compensatory damages proven, and the additur only doubled the

verdict; the court rejected the cross-appeal seeking a greater additur, because

the plaintiff had a pre-existing condition. See id.

 

4 An Allen charge, instructing the jury to continue deliberating, is known

as such after Allen v. United States, 164 U.S. 492, 501-02 (1896).

 

5 See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1424 (5th Cir.1996)

(en banc) (citations omitted); see also United States v. Calverley, 37 F.3d 160,

162-64 (5th Cir. 1994) (en banc) (holding that court plainly errs when it commits

an error that is plain that affects substantial rights and would seriously affect

the fairness, integrity, or public reputation of judicial proceedings if

uncorrected).

5

evidence sufficiently supports the verdict.

B.

Rawlings contends that the court erred in delivering a

modified Allen charge.4 He avers that the charge must have been

coercive, essentially mandating that the jury reach a verdict, and

resulted in the compromise verdict. He again seeks a new trial.

We review for abuse of discretion. See United States v.

Winters, 105 F.3d 200, 203 (5th Cir. 1997). Because Rawlings did

not object to the instruction, we will find an abuse of discretion

only if the court plainly erred, a challenging standard.5

Courts may give a modified version of the Allen charge if the

circumstances are not coercive and the content of the charge is not

prejudicial. See Winters, 105 F.3d at 203; United States v. Heath,

970 F.2d 1397, 1406 (5th Cir. 1992). Contrary to Rawlings'

suggestion, there is nothing coercive about the instruction given

here. In fact, the court asked the jury to deliberate only another

thirty minutes, with the promise of releasing them then if they had
6

not made any progress. The jury did continue to deliberate for a

little over an hour before successfully reaching a verdict.

Rawlings has not pointed to anything prejudicial in the

instruction, and nor do we find anything wrong with it.

Importantly, we find nothing in the instruction that might have

misled the jury into returning a compromise verdict. In fact, the

court reiterated that any decision must be reached unanimously.

The court did not plainly err in giving the instruction; hence, it

did not abuse its discretion in denying a new trial.

AFFIRMED.