1 – OPINION AND ORDER 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

JOSH MORRIS, 

Plaintiff, 

v. 

WALGREEN OSHKOSH, INC., a Wisconsin 

business corporation, 

Defendant. 

 

Case No. 3:14-cv-01718-ST 

OPINION AND ORDER 

STEWART, Magistrate Judge: 

INTRODUCTION 

 Based on the jury verdict, a Judgment was entered on February 4, 2016, awarding the 

sum of $4,386,817 to plaintiff, which included an award of $3,385,240 for impaired earning 

capacity. Pursuant to FRCP 50(b), defendant has filed a Renewed Motion for Judgment as 

Matter of Law on the ground that plaintiff did not adduce substantial evidence on which the jury 

could base an award of damages for impaired earning capacity. In addition, pursuant to FRCP 

59(a), defendant has filed an Alternative Motion for New Trial on the grounds that: (1) the 

damages the jury awarded for impaired earning capacity were excessive and against the clear 

weight of the evidence; and (2) the exclusion of evidence regarding Dr. Kellogg’s 2005 

disciplinary history was erroneous and substantially prejudiced defendant. In the alternative to 

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the grant of a new trial, defendant also has filed a Motion for Remittitur asking the court to 

condition the denial of the motion for new trial on a reduction of the jury’s damages award to 

$951,577 because the amount the jury awarded for impaired earning capacity was not supported 

by the evidence. For the reasons stated at the hearing on April 15, 2016, and below, those 

motions are denied. 

STANDARDS 

I. Motion for Judgment as a Matter of Law 

Pursuant to FRCP 50(a), a court should render judgment as a matter of law when “a party 

has been fully heard on an issue during a jury trial, and the court finds that a reasonable jury 

would not have a legally sufficient evidentiary basis to find for the party on that issue.” If the 

court does not grant the motion, the movant can file a renewed motion for judgment as a matter 

of law within 28 days after the jury is discharged. FRCP 50(b). The trial court can set aside the 

jury verdict and grant judgment as a matter of law if “the evidence, construed in the light most 

favorable to the nonmoving party permits only one reasonable conclusion” contrary to the 

verdict. Acosta v. City of Costa Mesa, 718 F3d 800, 828 (9th Cir 2013). 

The Supreme Court has set forth the following standard for the court to apply when a 

losing party moves to set aside a jury verdict: 

[I]n entertaining a motion for judgment as a matter of law, the 

court should review all of the evidence in the record. In doing so, 

however, the court must draw all reasonable inferences in favor of 

the nonmoving party, and it may not make credibility 

determinations or weigh the evidence. “Credibility determinations, 

the weighing of the evidence, and the drawing of legitimate 

inferences from the facts are jury functions, not those of a judge.” 

Thus, although the court should review the record as a whole, it 

must disregard all evidence favorable to the moving party that the 

jury is not required to believe. That is, the court should give 

credence to the evidence favoring the nonmovant as well as that 

“evidence supporting the moving party that is uncontradicted and 

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unimpeached, at least to the extent that evidence comes from 

disinterested witnesses.” 

Reeves v. Sanderson Plumbing Prods., Inc., 530 US 133, 150-51 (2000) (citations omitted). 

 Thus, after reviewing all of the evidence and disregarding all evidence favorable to the 

moving party except that which the jury is required to believe, the court must ask: 

whether a fair-minded jury could return a verdict for the plaintiff 

on the evidence presented. The mere existence of a scintilla of 

evidence in support of the plaintiff’s position will be insufficient; 

there must be evidence on which the jury could reasonably find for 

the plaintiff. The judge’s inquiry, therefore, unavoidably asks 

whether reasonable jurors could find by a preponderance of the 

evidence that the plaintiff is entitled to a verdict . . . . 

Anderson v. Liberty Lobby, Inc., 477 US 242, 252 (1986). 

 Contrary to plaintiff’s argument, the Ninth Circuit has expressly rejected the contention 

“that in a diversity action such as this, state, not federal, law should govern the determination of 

what is sufficient evidence to take a case to the jury.” Browne v. McDonnell Douglas Corp., 698 

F2d 370, 371 (9th Cir 1982). “Federal law decides whether evidence is sufficient to warrant 

giving a case to the jury.” Id (citation omitted). Therefore, it is irrelevant what evidence Oregon 

law allows to defeat a motion for a directed verdict on claims for impaired earning capacity. 

II. Motion for New Trial 

 The party moving for judgment as a matter of law under FRCP 50(b) may join an 

alternative motion for a new trial under FRCP 59. Where both motions are before the court 

following a jury verdict, the court may either “(1) allow judgment on the verdict . . .; (2) order a 

new trial, or (3) direct the entry of judgment as a matter of law.” FRCP 50(b). If the court grants 

the renewed motion for judgment as a matter of law, then it “must also conditionally rule on any 

motion for a new trial [and] state the grounds for conditionally granting or denying the motion 

for the new trial.” FRCP 50(c)(1). 

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4 – OPINION AND ORDER 

 A new trial may be granted after a jury trial “for any reason for which a new trial has 

heretofore been granted in an action at law in federal court.” FRCP 59(a)(1)(A). Although 

substantial evidence supporting the verdict bars a judgment as a matter of law, the court has a 

duty to grant a new trial if the verdict is against the clear weight of the evidence such that the 

court “is left with the definite and firm conviction that a mistake has been committed” by the 

jury. Landes Const. Co., Inc. v. Royal Bank of Canada, 833 F2d 1365, 1372 (9th Cir 1987) 

(citations omitted). The court need not presume that the verdict is correct nor view the evidence 

in the light most favorable to the prevailing party. Id at 1371 (citations omitted). Instead, the 

court must weigh the evidence and assess for itself the credibility of the witnesses with an eye 

toward preventing “a miscarriage of justice.” Murphy v. City of Long Beach, 914 F2d 183, 187 

(9th Cir 1990). 

 When a jury’s award in a case is challenged as excessive, the role of the trial court is to 

“determine whether the jury’s verdict is within the confines set by state law, and to determine by 

reference to federal standards developed under Rule 59, whether a new trial or remittitur should 

be ordered.” Gasperini v. Center for Humanities, Inc., 518 US 415, 435 (1996), quoting 

Browning-Ferris Inds. of Vt., Inc. Kelko Disposal, Inc., 492 US 257, 279 (1989). 

III. Motion for Remittitur

 A motion for remittitur of a jury verdict is subject to the same standard as a motion for 

new trial under FRCP 59. 

ANALYSIS 

I. Impaired Earning Capacity 

 Defendant argues that the jury’s award of $3,385,240 for impaired earning capacity was 

excessive and either unsupported by substantial evidence (motion for judgment as a matter of 

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5 – OPINION AND ORDER 

law), against the clear weight of the evidence (motion for new trial) or unsupported by sufficient 

evidence (motion for remittitur). This argument rests primarily on defendant’s view that the 

testimony of plaintiff’s vocational expert, Scott T. Stipes, was based on assumptions that were 

speculative and/or contradicted by the evidence. 

 In his testimony, Mr. Stipes presented a standard methodology used by vocational 

rehabilitation experts for calculating plaintiff’s impaired earning capacity. He started with a 

choice of several pre-injury models based primarily on when plaintiff would retire, the level of 

his benefits, and whether he would become a supervisor by 2019. Those models produced eight 

possible damages numbers with ranging from a high of about $8.6 million to a low of about $2.7 

million. That number was then reduced by four post-injury models based primarily on when 

plaintiff would retire and whether he obtained vocational rehabilitation training, ranging from a 

high of about $1.72 million to a low of about $592,000. The parties agree that the jury’s award 

cannot be computed by simply subtracting one post-injury model from one pre-injury model. 

 Defendant argues that in his calculations, Mr. Stipes made erroneous assumptions that: 

(1) plaintiff could not return to work as a longshoreman; (2) container shipping would return to 

the Port of Portland, and if not, traveling work would be available; (3) plaintiff would have been 

promoted to foreman; (4) the calculations should be based on plaintiff’s last year preceding his 

injury. Contrary to defendant’s argument, each of these assumptions is supported by some 

evidence as summarized in plaintiff’s response and is not simply a figment of Mr. Stipes’s 

imagination. Based on defendant’s cross-examination of Mr. Stipes and contrary expert 

testimony pointing out various defects in these assumptions, the jury may well have rejected one 

or more of them and adjusted Mr. Stipes’s calculations accordingly. Even if the jury rejected all 

of Mr. Stipes’s assumptions, the jury could have applied his methodology to other evidence in 

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6 – OPINION AND ORDER 

order to calculate an award of impaired earning capacity, namely an exhibit which reveals 

plaintiff’s drop in work hours and income following his injury. Therefore, this court declines to 

grant defendant’s renewed motion for judgment as a matter of law by rejecting the entirety of 

Mr. Stipes’s testimony. 

 When weighing the evidence on defendant’s motion for a new trial or remittitur, this 

court agrees with defendant that the jury award for impaired earning capacity is very high. 

Nevertheless, this court is not left with a “definite and firm conviction” that the jury made a 

mistake. Landes Const. Co., Inc., 833 F2d at 1371. Although the jury award cannot be directly 

tied to any of the particular numbers posited by Mr. Stipes, it is neither above nor below the 

range of possibilities that he presented. In addition, defendant’s own expert, Mr. Berg, conceded 

that plaintiff has suffered a partial impairment of his earning capacity. Unfortunately, plaintiff 

was injured while still in his 30s with a many working years ahead of him in an extremely wellpaying line of work at which he had excelled. Given that he earned $121,000 in 2011 before his 

injury and assuming that he could have worked for 30 more years and retired as a foremen, the 

award of $3,385,240 for impaired earning capacity cannot be deemed inherently unreasonable. 

Therefore, defendant’s alternative motion for a new trial or for remittitur based on an excessive 

award of impaired earning capacity is denied. 

II. Dr. Kellogg’s Disciplinary History

 Defendant also argues that excluding Dr. Kellogg’s 2005 disciplinary history prejudiced 

defendant to a degree sufficient to warrant a new trial. As explained by this court when denying 

defendant’s motion in limine, a decade-old failure to make appropriate chart notes, to arrive on 

time to a surgery, or to engage in the other conduct leading to the 2005 Stipulated Order with the 

Board of Medical Examiners is simply not relevant to either Dr. Kellogg’s competence or his 

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7 – OPINION AND ORDER 

credibility to testify regarding the extent of plaintiff’s injuries and treatment. Even though 

Dr. Kellogg also testified as an expert witness regarding the cause of plaintiff’s injuries, his prior 

disciplinary action was properly excluded because its probative value is outweighed by its 

prejudicial effect. 

ORDER 

Defendant’s Renewed Motion for Judgment as a Matter of Law, Motion for New Trial, 

and Motion for Remittitur (docket #76) are DENIED. 

DATED April 28, 2016. 

s/ Janice M. Stewart 

Janice M. Stewart 

United States Magistrate Judge 

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