United States Court of Appeals Fifth Circuit 

## FILED June 19, 2007 Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS fo r the FIFTH CIRCUIT

No. 06-40308
RONALD E. DUFF, Pl aint iff- Appellee, VERSUS WERNER ENTERPRISES, INC., d/b/a Nebraska Werner Enterprises, Inc.; GLEN PATRICK PEER, Defendants-Appellants.
Appeal from the United States District Court For the Eastern District of Texas Before GARWOOD, SMITH, and DeMOSS, Circuit Judges. DeMOSS, Circuit Judge: INTRODUCTION Defendants-Appellants Werner Enterpri ses, Inc. and Glen P. Peer challe nge the dist rict court’s denial of their motion for new trial following a jury verdict rendered in favor of Plaintiff-Appellee Ronald E. Duff. The jury awarded Duff $300,000 fo r pas t and future damages after finding that Peer’s negligent driving was the sole proximate cause of a car accident between Peer and Duff. The issue on appeal is whether adequate evidence supports the jury’s negligence finding and award.2 FACTUAL BACKGROUND Duff is a Texas Ranger law enforcement of ficer. As such, he drives an unmarked car, provides support and backup to various Texas law enforcement agencies, and is on call twenty-four hours a day. Peer is a tractor trailer operator. And Werner Enterpri ses, Inc. (“Werner”), Peer’s employer at the time of the accident, is the com mercial transportation com pany th at owned the truck invo lved in the accident. On March 17, 2004, Duff responded to a request th at he assist in a manhunt fo r th ree fugitives last seen in Woodville, Texas. The fugitives robbed a bank earlier that day, exchanged gunfire with
a law enforcement of

ficial, and fled on fo ot. Duff left his home in an unmarked car and proceeded north on U.S. Highway 59 (“US 59"). As Duff approached Goodrich, Texas, Peer was waiting to pull his rig out of a truck stop parking lo t lo cated on the northbound side of US 59. Peer needed to cross mult iple northbound lanes and the center median to turn left and head south on US 59. Alt hough Peer allegedly checked to his left before pulling out, he for some reason did not see Duff’s vehicle approaching. At trial, both parties int roduced th eori es as to why Peer did not see Duff. The pervasive theme on Duff’s side (which was supported by the written report filed by t he accident investigator) was that Peer’s view of Duff’s car was blo cked by a truck in front of Duff’s car turning right to enter the parking lo t Peer
was trying to exit
. Whatever the reason, Peer did not see Duff’s car and pulled his rig out directly in front of it. When Duff fir st applied his brakes, he was traveling 93-100 miles per hour and was on his cell phone discussing the fugitive sit uation. Duff was unable to avoid Peer’s rig and collided wit h the left rear of the rig’s trailer. Unable to feel the impact, Peer continued his attem pt to make the left turn,3

dragging Duff’s car sideways across the northbound lanes of US 59. The collisio n nearly removed th e entire top half o f Duff’s car. Duff suffered fairly serious injuries, but for the m

ost part has recovered. Duff’s remaining injury is a fractured C7 cervical vertebra, which causes him pain and decreased mo bilit y. His doctor recom mends a cervical fusion to fix it
. But, because the surgery will require Duff to miss up to four months of work, he has not yet had it. PROCEDURAL HISTORY Duff filed t his lawsuit alleging th at Peer’s driving was negligent and the proximate cause of his injuries. Duff also claimed th at because Peer was acting wit hin the scope of his employment at the time o f t he accident, Werner was vicariously liable. The case went to tri al, and the jury agreed wit h Duff. The jury fo und th at Peer’s actions were negligent and the sole proximate cause of the accident. Therefore, the jury necessari ly fo und that Duff’s actions eit her were not negligent, not a proximate cause of the accident, or both. Because the verdict form combined negligence and causation int o one question, it is no t n ow clear which of the above scenarios the jury chose. The jury awarded Duff $300,000 for past and future damages. Of the $300,000, the verdict fo rm indicated th at the jury awarded Duff $80,000 fo r future medical care and $35,000 for future loss of earning capacity. In a mo tion fo r new tri al, Appellants contended that the jury’s verdict was against the great weight of the evidence. Specifically, Appellants insist ed th at the evidence required a finding th at Duff
was at fault and additionally th at the evidence supported an award no greater than $40,000 and $17,000 respectively fo r future medical care and future loss of earning capacity. The district court denied the motion, and this appeal followed.4 DISCUSSION Appellants make the same arguments on appeal, i. e., th at the tri al court abused it s discretion by denying their mo tion fo r new tri al because the fo llo wing portions of the jury’s verdict were against t he great weight of the evidence: (1) the jury’s negligence finding; (2) the jury’s award for future medical care; and (3) the jury ’s award f or f uture loss of earning capacity. We will address each in turn, keeping in mind our deferential standard of review: “Absent ‘a clear showing of an abuse of discretion,’ we will not reverse the tri al court’s decision to deny a new tri al.” Hidden Oaks Ltd. v. City of Austin , 138 F.3d 1036, 1049 (5th Cir. 1998) (quoting Daw sey v. Olin Corp. , 782 F.2d 1254, 1261 (5th Cir. 1986)
. To make such a “clear showing,” Appellants must demonstrate “an absolute absence of evidence to support the jury’s verdict.” See id. We start with the jury’s negligence finding. (1) The Jury’s Negligence Finding Appellants take issue wit h the jury’s refusal to place any blame fo r the accident on Duff. The verdict fo rm required the jury to analyze negligence and proximate cause individually as to both Peer and Duff. The jury determ ined th at Peer was negligent and th at his negligence was the sole proximate
cause of Duff’s injuries. Therefore, the jury necessarily determ ined eit her th at Duff was not negligent or that hi s actions did not proximately cause his injuries, or both. Appellants contend th at the evidence required a finding th at Duff was negligent. Therefore, Appellants continue, the jury’s finding to the contrary was against the great weight of the evidence, and the district court’s refusal to grant Appellants a new tri al was an abuse of discretion. Appellants point to the fo llo wing facts: Duff was traveling 93-100 miles per hour in a 65 miles per hour zone. This was far too fast, according to Appellants, because it was night time and the area was fairly busy5

(because there were gas stations, parking lo ts, and restaurants nearby). Additionally, Duff was in an unmarked car wit hout flashing light s or a siren and was on his cell phone at the time of the accident. Finally, Trooper Shel Lee testified at trial that, in her opinion, Duff was going too fast. Duff counters wit h facts th at support the j ury ’s finding th at Peer’s negligence was the sole proximate cause of the accident. Like Appellants, Duff point s to numerous facts to support his theory . To decide this issue, however, we need look no further than the first fact Duff cit es. Trooper Lee’s report, written immediat ely aft er she investigated the accident, reads: Based on physical evidence left at the scene and wit ness statem ents, it is my opinio n th at [Peer] failed to yield the right-of-w ay t o oncom ing t raffic. [Peer] could not possibly have had a sure clear view of approaching traffic hazards, due to Ranger Duff’s vehicle being blo cked from his view by another truck-tractor turning int o the parking lot [that Peer was exiting] . . . . It is my opinion that [Peer] did not wait fo r a visual obstruction to clear pr io r to pulling across the roadway into the path of oncom ing t raffic. We can st op there. While t he evidence does not exclusively support the jury’s negligence finding, it need not. Again, our well-established standard of review in this context requires us to affirm “unless there is a clear show ing of an absolute absence of evidence to support the jury’s verdict.” See id. (emphasis added). The written report of the invest igating of ficer point s the finger at Peer, and it alo ne precludes us from finding “a clear showing of an absolute absence of evidence” supporting the jury’s verdict as it relates to negligence. Thus, we affirm this portion of the district court’s denial of Appellants’ motion for new trial. We turn now to both aspects of the jury’s award for Duff’s future damages. (2) The Jury’s Award for Future Medical Care Appellants argue th at the jury improperly overcom pensated Duff fo r future medical care. As noted above, the jury awarded Duff $80,000 fo r future medical care. Generally, we will disturb a jury6

award only upon a clear showing of excessiveness. See Carlton v. H. C. Price Co. , 640 F.2d 573, 578 (5th Cir. 1981). And it is well settled that an award is excessive if it exceeds the “maximum amount
c alculable from the evidence.” S ee id. at 579. We view this standard, at least in this context, as substantially the same as our deferential review of a district court’s denial of a motion for new tri al brought on the ground th at the verdict is against the great weight of the evidence; th at is, we affirm unless there is a clear showing of an absolute absence of evidence to support the jury’s verdict. See Hidden Oaks Ltd. , 138 F.3d at 1049. Thus, we will determ ine the maximum amo unt calculable from the evidence submitted at trial to ensure the jury did not exceed it. To start, Appellants concede th at the evidence adequately supports an award of $40,000 fo r future medical care. Indeed, Duff’s doctor testified (via video deposition) th at Duff needs surgery on his C7 vertebra, and th at the total cost of the surgery will be about $40,000. However, Appellants argue that no evidence supports an award for future medical care greater than $40,000. Duff, on the other hand, contends th at the evidence clearly supports the $80,000 award. First, Duff reaffirms, $40,000 is not in dispute. So the only question before us is whether the evidence supports an additional $40,000. Duff insist s th at the additional $40,000 is supported by evidence of costs associated wit h: preparation fo r his surgery , his next round of steroid inject io ns, future check-up visit s, and medication he probably will need to take in the future. After our painstaking review of the record, we find that it supports much, but not all, of the $80,000 awarded for future medical care. Here is our review of the record and a corresponding calculation: First, it is now undisputed th at Duff is entitled to $40,000 for the surgery. Second, Duff int roduced evidence establishing th at before he has the surgery he fir st will need preparatory care and testing, including an MRI and myelo graphy. Duff gave the jury past medical bills7

estab lishing t hat an MRI costs $935 and a myelography costs $545. Duff does not expand on any additional care he might need to get ready for surgery. This additional $1480 brings the t otal to $41,480. Third, Duff explained to the jury th at he needs and has scheduled, but not yet received or paid fo r, his next round of steroid inject io ns. He entered int o evidence a medical bill indicating th at a prior round of injections cost $5,673, bringing the calculable amount thus far to $47,153. Fourth, Duff’s doctor testified th at Duff needs quarterl y check-up visit s. Appellants of fered
no evidence contradicting Duff’s doctor’s assertion th at Duff requires check-ups. The record shows, th rough medical bills docum enting Duff’s 2004-2005 chec k-ups, that the average cost per vi sit is $143.71. Thus, at fo ur per year, the check-ups will cost Duff $574.84 each year. To add meaning to this yearly cost, Duff established at tri al th at his life expectancy is 37 years. The total cost of the of fice visit s over Duff’s lifet ime, therefore, is $21,269.08. This brings the calculable amo unt to $68,422.08. But that i s as far as the record will go for Duff. The rest of Duff’s evidence relating to future medical care is too vague for us, or a jury, to consider. For example, the record contains a written statem ent by Duff’s doctor implying t hat Duff will need to take medication in the future. More specifically, bu t n ot s pecifically eno ugh, Duff’s doctor stated that Duff would need “int ermit tent medication therapy.” No further explanation was given. The jury did receive evidence of the cost of different ty pes of medication, both prescription and nonprescription. Unfortunately fo r Duff, he did not explain to the jury or offer evidence indicating how many or which ty

pes of medication Duff will need, how of ten Duff will need to fill prescriptions, and fo r how lo ng Duff will need to take medication. Wit hout this info rmation, the jury could not have used properly the evidence of the cost of various forms of medication.8

In sum, the maximum amo unt calculable fo r future medical care is $68,422.08. Therefore, a remit ti tur of the future medical care portion of Duff’s award to $68,422.08 will be required unless he elects a new trial on these damages. We must now analyze in the same fashio n the jury’s award fo r future lo ss of earning capacity. (3) The Jury’s Award for Future Loss of Earning Capacity Appellant s contend that the j ury also improperly overcompensated Duff for future loss of earning capacity. Appellants insist th at the record contains only on e piece of evidence relating to Duff’s future loss of earing capacity--evidence that when Duff has surgery to repair his fractured C7 cervical vertebra, he will miss up to 17 weeks of work. The record makes clear that Duff currently makes $1,000 per week, and Duff did not argue or of fer evidence th at he will be prom oted or receive rai ses in the f

uture. Thus, Appellants contend that the record supports an award no greater than $17,000. We agree. Quite simply, the jury had no evidence before it to conclude that Duff deserved
mo re th an $17,000 fo r future lo ss of earning capacity. The onl y evidence before the jury was that Duff could miss up to 17 weeks of work and that he makes $1,000 per week. Any amo unt greater th an $17,000, therefore, exceeds the maximum amo unt calculable from the evidence. A remit ti tur of the future lo ss of earning capacity portion of Duff’s award to $17,000 will be required unless he elects a new trial on these damages. In all, $29,577.92 of Duff’s $300,000 award is not sustainable on this record.

CONCLUSION9

For the fo regoing reasons, we AFFIRM the district court’s denial of Appellants’ mo tion fo r
new tri al as it relates to the jury’s negligence find ing. We REMAND, however, for further proceedings consistent wit h this opinio n. Specifically, the district court must remit Duff’s award to $270,422.08 unless he elects a new trial on damages stemming from future medical care and future lo ss of earning capacity. AFFIRMED in part, and REMANDED with instructions.