IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 90-6036

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JAMES YARBROUGH, Individually and as Next Friend of

ROBERT YARBROUGH, a Minor,

Plaintiff-Appellee,

VERSUS

STURM, RUGER & CO.,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Texas

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(June 15, 1992)

Before WISDOM, JONES, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

After a minor was injured by a gun he had stolen, he and his

family brought a products liability action against th e gun's

manufacturer, Sturm, Ruger & Co., Inc. ("Sturm, Ruger"), alleging

that the gun was defectively designed. After an initial trial in

which the jury returned an inconsistent verdict and, upon further

consideration, pronounced itself unable to agree on a resolution of

the suit, the district court, over Sturm, Ruger's objections,

accepted the jury's findings as to liability and impaneled a second2

jury to determine damages. Sturm, Ruger appeals, arguing that the

first jury verdict represented an impermissible compromise. Sturm,

Ruger also raises some evidentiary and p rocedural issues. We

vacate and remand for a new trial on all issues.

I.

Robert Yarbrough was thirteen years old when he and fourteenyear-old Rusty Cowart stole a number of guns and other property

from at least two houses in their neighborhood. One of those guns

was a .44 caliber Sturm, Ruger single action revolver ("the

revolver"). Yarbrough and Cowart carried the firearms around in a

paper bag, apparently playing with them and attempting to sell

them. Although the boys had found the revolver unloaded, they

obtained ammu nition and carried it fully loaded, with the hammer

forward over a live cartridge.

A few days after the theft, while Yarbrough and Cowart were,

ironically, walking past the house from which they had stolen the

revolver, after failing to sell the stolen firearms, one boy began

to hand the bag to the other. The bag either dropped or gave way.

The revolver hit the pavement and discharged, wounding Yarbrough in

the leg, which eventually was amputated above the knee.

II.

Yarbrough and his family brought this lawsuit against Sturm,

Ruger on theories of negligence, strict product liability , and

failure to warn; they later reduced their claim to one of product3

lia bility, based upon defective design. Sturm, Ruger based its

defense upon the lack of design defects when the gun was manufactured in 1962, the adequacy of the warnings that accompanied the

gun at that time, and Yarbrough's contributory negligence.

The jury returned an initial verdict stating that the revolver

was defectively designed and that the defect caused Yarbrough's

injuries. It found Sturm, Ruger 60% liable and Yarbrough 40%

liable for those injuries.

In response to the special interrogatories, the jury awarded

$50,000 for past medical expenses, $250,000 f or future medical

expenses, and $100,000 for past disfigurement, for a total of

$400,000. It entered zero as the award for future disfigurement,

past and future physical impairment, past and future mental

anguish, past and future pain and suffering, and past and future

lost earning capacity.

The district court determined that the inconsistency between

the finding of liability and the various damage awards were

"inconceivable" and "absolute ly unbelievable." It denied Sturm,

Ruger's motion for a mistrial and told the jury to reconsider,

instructing the jurors that if they unanimously agreed on liability, they must assess damages for the unquestionable injuries. The

court further reminded the jurors that they were to consider the

issues of liability and damages separately. The jury deliberated

for another four hours before informing the court that it was

"unable to agree on a resolution of this lawsuit."1 Sturm, Ruger has not asserted, in this case, that the public policy of

Texas forbids the awarding of damages to those who are injured by firearms

they steal. Accordingly, we assume, arguendo , that products liability may be

imposed under such circumstances.

4 I n response to the court's efforts, in open court, to

understand the verdict, the jury foreman stated as follows:

On the money that was awarded, everybody has sort of

agreed to that particular figure. But there was argumen ts on how that figured down the line. I mean, that

was our argument on the liability end and on the negligence, injury and pain

. . . . I think we were trying to

come up with a dollar figure that would be reasonable to

get him to an even start in life now with perhaps

something to give him a boost so he c an go on with his

life.

Another ju ror averred that the jury's conflict on the liability

issue had caused it to reach an incomprehensible damage award.

The court then denied Sturm, Ruger's renewed motion for a

mistrial and accepted the verdict on liability but severed the

damage issue and impaneled another jury to determine it. The

second jury awarded damages for each element of Yarbrough's injury,

returning an award of $422,000, only $22,000 greater than the total

the first jury awarded. Sturm, Ruger's motion for a new trial was

denied, and it filed a timely appeal based upon the denial of a

mistrial; the exclusion of evidence about how Yarbrough a cquired

the gun; alteration of an evidentiary stipulation; and the district

court's allegedly biased behavior and questioning of witnesses. 1

III.

Sturm, Ruger argues that the district court erred in denying

its motions for a mistrial because of the apparent compromise2 In Pagan , 931 F.2d at 339, we discussed the factors that courts have

considered in determining whether the jury compromised. In Hatfield v.

Seaboard Air Line R.R. , 396 F.2d 721, 723 (5th Cir. 1968), the factors

included whether the issue of liability was strongly contested, whether the

jury was confused concerning contributory negligence, and whether either party

urged the district court to accept the jury's verdict. The Eleventh Circuit

also has examined whether the jury requested additional instructions or

attempted to qualify its award. See Burger King Corp. v. Mason , 710 F.2d

1480, 1488 (11th Cir. 1983), cert. denied , 465 U.S. 1102 (1984). Perhaps most

relevantly, the Tenth Circuit has held that an award of only nominal damages,

coupled with either a disregard for uncontested and obvious damages or an

award of only out-of-pocket expenses, raises the suspicion of a compromise

verdict. National R.R. Passenger Corp. v. Koch Indus. , 701 F.2d 108, 110

(10th Cir. 1983).

3 The verdict and the record of the trial provide us with sufficient basis

to believe that the verdict was tainted, and thus we need not consider the

statements of the jurors, which evidence is not favored, although here it

gives us even more comfort. See McDonald v. Pless , 238 U.S. 264 (1915).

5 verdict. We reverse a district court's ruling on a motion for new

trial only for abuse of discr etion. L ucas v. American Mfg. Co.

,

630 F.2d 291 (5th Cir. 1980) (citing Silverman v. Traveler Ins.

Co. , 277 F.2d 257 (5th Cir. 1960)).

If the record indicates that a liability verdict stemmed from

a compromise on damages, the complaining party is entitled to a new

trial, for considerations of damages should not taint the initial

question of the defendant's fault. W estbrook v. General Tire &

Rubber Co.

, 754 F.2d 1233 , 1242 (5th Cir. 1985). In determining

whether a jury reached a compromise verdict, we examine the

"totality of circumstances" and consider any indicia of compromise

apparent from the record and other factors that may have caused a

verdict for damages that would be inadequate if the jury actually

found liability. Pagan v. Shoney's, Inc. , 931 F.2d 334, 339 (5th

Cir. 1991). 2 After examining the jury verdict and the record of

the case, we believe that the verdict stemmed from an impermissible

compromise. 34 Cf. Pagan , 931 F.2d at 340 (jury's failure to answer interrogatory,

rather than entering "zero" or "none," strengthens argument that jury considered damages duplicative).

6 The first, and most important, evidence of a compromise is in

the verdict form itself. It is inconceivable that the jury could

find liability and then award damages for past but not future

disfigurement, for past and future medical expenses but not for

past and futu re pain and suffering, mental anguish, and lost

earning capacity. Sturm, Ruger did not dispute that Yarbrough was

seriously injured and that his injury would cause him impairment

and disfigurement for the rest of his life. If he was disfigured

in the past, he will be disfigured in the future; his leg will not

grow back.

Further, in contrast to P agan

, where another basis for the

jury' s improper award existed, this case suggests no alternative

explanation for the jury's verdict. The fact that the jury awarded

distinct sums for past medical expenses, future medical expenses,

and past disfigurement does not indicate that it intended to make

a general award of damages in the sum of $400,000 or that it merely

misunderstood the purpose of the special interrogatories. Even

more significantly, the jury did not leave the space for an award

of damages for future disfigurement blank but entered zero as the

amount it wished to award. 4

Second, although Sturm, Ruger vigorously contested liability,

it hardly challenged Yarbrough's claims of damages during the first

trial. Although not determinative, such a fact indicates that the

jury's ostensible d ifficulty in finding a satisfactory damages7

award was complicated by continuing disputes over liability. See

Hatfield

, 396 F.2d at 723. As the California Supreme Court has

noted, "A refusal to allow for undisputed special dam ages is

usually convincing evidence that a jury failed to make a decision

on the liability issue." Hamasaki v. Flotho , 248 P.2d 910, 912

(Cal. 1952), quoted in Mutuelle Electrique D'Assurances v.

Hammermills, Inc.

, 786 F.2d 840, 843 n.7 (8th Cir. 1986). The fact

that the jury requested the transcript of the deposition testimony

of the revolver's designer, William Ruger, indicates serious

consider ation of the liability issue, as Mr. Ruger offered no

insight into the issue of damages.

Third, neither party was satisfied by the initial v erdict.

See Ha tfield , 396 F.2d at 723. Yarbrough's attorneys requested

that the court add damages to the jury's findings; Sturm, Ruger, of

course, moved for a mistrial.

Fourth, the failure of the first jury to reach an agreement

after four hours of further deliberation, after the district court

instructed it in how to prepare an acceptable verdict form, shows

that the jury must have been having a problem regarding liability.

That it could not prepare such a form s u ggests that it was

deadlocked by the terms of its initial compromise.

Fifth, Yarbrough's contention, that the fact that the damages

awarded by the second jury were not inconsistent with those awarded

by the first shows that the severance of issues did not prejudice

Sturm, Ruger, misses the point. If the finding of liability by the

first jury was based upon a compromise, then the second jury was5 See, e.g

. , Lucas v. American Mfg. Co. , 630 F.2d 291 (5th Cir. 1980)

(jury had been instructed to deliberate for no more than fifteen minutes

because of an approaching hurricane); Hatfield (jury members had exhibited

confusion about contributory negligence, and the jury took two days to reach

its verdict).

8 allowed to rely upon a tainted finding that had served only as the

tradeoff for the first jury's damages award. S ee Westbrook

, 754

F.2d at 1242. Again, the damages were not vigorously contested at

the first trial; liability was a more disputed issue.

This case may lack the strong examples of improper judicial

behavior or juror confusion that were present in some of the cases

in which we have found impermissible compromises. 5 Nevertheless,

the record reveals substantiall y more facial evidence that the

verdict was compromised, i.e., that the jurors had agreed on an

amount of damages they wanted to award Yarbrough and then reached

their liability finding based upon that.

As an empirical matter, it may be that many juries make such

compromises. Nevertheless, although we do not favor questioning

verdicts, whe n we are faced by the obvious facial contradictions

between the verdi ct and the evidence presented, in circumstance

such as those that prevailed here, we cannot agree that the

district cour t should have retained a liability finding that

apparently was deliberately made to reach a certain amount of

d amages, for the parties are entitled to independent findings of

damages and liability. S ee Gaso line Products Co. v. Champlin

Refining Co.

, 283 U.S. 494, 500 (1931); Colonial Leasing v.

Logistics Control Int'l , 770 F.2d 479, 481 (5th Cir. 1985).9 IV.

Having concluded that the district court abused its discretion

in denying the motion for a new trial, we need not consider the

other issues that Sturm, Ruger raises on appeal. Nevertheless,

because the matter is certain to arise when the case goes to trial

again, we address one of Sturm, Ruger's evidentiary concerns.

Sturm, Ruger contends that the district court abused its

discretion by disallowing evidence that Yarbrough stole the

revolver SQ evidence necessary for a proper factual determination

of causation and comparative negligence. The court excluded such

evidence based upon the balancing test required by Fed. R. Evid.

403. We review such a determination for abuse of discretion. S ee

,

e.g.

, Wright v. Hartford Accident & Indem. Co. , 580 F.2d 809, 810

(5th Cir. 1978).

Sturm, Ruger is correct that evidence of the theft would have

been probative of Yarbrou gh's negligence and lack of knowledge

about the gun. The court allowed a stipulation that Yarbrough had

possession of the revolver at the time of the accident without the

permission of its owner. The stipulation did not, however, inform

the jury that Yarbrough, through stealing the gun, rather than

perhaps borrowing it from someone in rightful possession, willfully

put himself out of the w ay of any warnings about the revolver's

dangers or instruction as to its use.

Indeed, through his efforts to hide his wrongful possession,

Yarbrough necessarily avoided instructions o r warnings of any6 See Ramirez v. Volkswagen of Am., Inc. , 788 S.W.2d 700, 705 (Tex. App.

SQCorpus Christi 1990, writ denied) (evidence of product liability plaintiff's earlier barroom brawl properly admitted as tending to establish his

motive and state of mind and was "clearly critical" to establish that he had

been driving at great speed).

10 type. 6 Moreover, because he had stolen the weapon and was engaged

in trying to sell the guns, Yarbrough was transporting a loaded

weapon in a careless, concealed manner that predictably increased

the risk of harm. Such information would be vital for the jury's

consideration of Yarbrough's relative fault, see, e.g.

, Duncan v.

Cessna Aircraft Co.

, 665 S.W.2d 414, 428 (Tex. 1984) (Texas courts

compare plaintiff's conduct with conduct or product of defendant),

and the court's exclusion of it makes it impossible for Sturm,

Ruger to present its defense fully, unfairly prejudic ing the

company.

Instead, the court sanitizes Yarbrough's conduct, and Sturm,

Ruger was deprived of the opportunity to have any fault attributed

to it compared to the fault of the plaintiff. S ee Duncan

, id. In

such a context, we cannot say that permitting the introduction of

the evidence would unduly prejudice Yarbrough, and hence such

evidence should be admitted in the new trial.

We thus VACATE the judgment and REMAND for a new trial on all

issues.