United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-1205

___________

Sandra Gail Davis, Debtor-in- *

Possession; Earl Davis, Debtor- *

in-Possession, *

*

Appellees, *

*

v. *

*

Ford Motor Company, *

*

Appellant. *

*

___________

No. 97-1250 Appeal and Cross-Appeal from the 

___________ United States District Court for the

Western District of Arkansas.

Ford Motor Company, *

*

Appellee, *

*

v. *

*

Sandra Gail Davis, Debtor-in- *

Possession; Earl Davis, Debtor-in- *

Possession, *

*

Appellants. *
Davis filed a cross-appeal but chose not to argue her cross-appeal. Therefore, 1

this opinion does not discuss the cross-appeal filed by Davis and it is deemed

dismissed.

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___________

Submitted: September 8, 1997

Filed: October 17, 1997

___________

Before McMILLIAN, BRIGHT and MURPHY, Circuit Judges.

___________

BRIGHT, Circuit Judge.

Sandra Gail Davis ("Davis") sustained severe injuries when her 1991 Ford

Explorer vehicle rolled over her leg, notwithstanding its transmission was in a park

position. In her claim against the Ford Motor Company ("Ford"), the jury awarded her

$1.2 million in a general verdict. Ford admitted the vehicle was defective and the

defect caused the accident, but it asserted Davis' negligence in disregarding warnings

to set her parking brake contributed to the accident and that such issue should have

been submitted by the trial court to the jury on a special verdict form, rather than by

way of the general verdict form. We reject this contention of error and affirm.1

I. BACKGROUND

 

On May 16, 1992, Davis' 1991 Ford Explorer rolled over her left leg while the

transmission was in the park position. Davis' injuries required extensive medical

treatment including four hospitalizations totaling fifty-five days, seven surgeries, thirtynine debridement procedures, twenty-five physician visits, fifty-six home health care

visits, fifty-three physical therapy treatments and treatment with forty-two different

medications. Davis' medical expenses totaled $116,942.10. Two doctors testified for
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Davis that she would be hospitalized one to two times per year for approximately two

weeks for treatment of recurrent infections. 

Davis had approximately 60,000 miles on her Explorer at the time of the accident

and testified that she had never experienced any problem with the parking gear. Davis

introduced evidence showing the accident occurred while the vehicle was parked on a

slope of 3.5%.

Davis put forth substantial evidence on the subjects of product defect, Ford's

negligence, causation, and Davis' damages. One Ford engineer testified by deposition

that the defect in Ford vehicles caused an "unacceptable" and "unreasonable" risk of

danger. The expert also testified that Ford knew vehicle owners commonly rely

exclusively on the park mechanism to hold their vehicles in place. Ford's documents also

revealed that there were 1,547 reported "roll in park" incidents on vehicles with A4LD

transmissions. Ford's engineers acknowledged that Ford, after the investigation began

in 1990, continued to manufacture and sell vehicles with the defective transmissions until

October 1991. 

Ford, although admitting liability, submitted evidence that Davis ignored four

warnings to set the parking brake when parking. Ford further argued that Davis could

have improved the strength and range of motion of her leg had she done aggressive

physical therapy. Ford sent Davis in 1993 to an orthopedic surgeon in Denver, who

advised aggressive physical therapy that Davis did not pursue.

Ford requested a special verdict that would allocate fault between Davis and

Ford and assess Davis' total damages. Ford's Proposed Interrogatory 2 would have

asked the jury "[d]o you find from a preponderance of the evidence that there was

negligence on the part of Plaintiff, Sandra Gail Davis, which was a proximate cause of

her injuries and damages?" Ford's Proposed Interrogatory 3 would have required the

jury to "[u]sing 100% to represent the total responsibility for the occurrence and any
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injuries or damages resulting from it, apportion the responsibility between [Davis and

Ford]." Ford's fourth proposed interrogatory would have then asked the jury to state

the amount which would compensate Davis for damages caused by Ford. App. at 30A32A.

The district court denied Ford's request for a special verdict. The district court

instructed the jury on the principles of comparative fault as applicable in Arkansas.

Arkansas uses modified comparative fault whereby Davis would recover nothing if her

fault is equal to or greater than Ford's fault. The general verdict form submitted to the

jury included two questions regarding Davis' claim for compensatory damages:

1. On the claims of Sandra Gail Davis against Ford Motor 

Company, we find in favor of:

 

 Sandra Gail Davis or Ford Motor Company

. . . .

2. We, the jury, assess damages in favor of Sandra Gail Davis in

the amount of: $ 

Add. at 123.

II. DISCUSSION

Ford argues that the district court abused its discretion by refusing to submit the

requested special verdict. Pursuant to Federal Rule of Civil Procedure 49, the decision

whether to use a special verdict is vested in the district court. This discretion of the

trial court has been seen by appellate courts as "not ordinarily reviewable." See, e.g.,

Jarrett v. Epperly, 896 F.2d 1013, 1020 (6th Cir. 1990); Lummus Indus., Inc. v. D.M.

& E. Corp., 862 F.2d 267, 273 (Fed. Cir. 1988). The Eighth Circuit has cited text-
Of course such ruling is subject to review on appeal. Upon review, the Flanigan 2

court found no error in the ruling. When this court reviews the decision to use a

general verdict, great deference is afforded the district judge under Rule 49.

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book authority that the decision to use a general verdict accompanied by interrogatories

is committed to the unreviewable discretion of the trial judge. Flanigan v. Burlington 2

Northern, Inc., 632 F.2d 880, 884 (8th Cir. 1980), cert. denied, 450 U.S. 921 (1981)

(quoting 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure:

Civil § 2511 (1971)). 

Ford has failed to show any possible prejudice from the decision to use a general

verdict. Specifically, although Ford complains that the general verdict was confusing,

we conclude that the verdict form and the jury instructions were not unclear. In

addition, during closing argument Ford used an overhead projector to further explain

Arkansas' comparative negligence principles. The district court instructed the jury on

Arkansas comparative fault using Arkansas Model Jury Instruction 2115. 

Ford does not complain about the amount of the award. In fact, the amount of

compensatory damages awarded is substantially less than the amount advanced by

Davis. In all likelihood, this reflects the jury allocated some degree of responsibility

to the plaintiff. Ford admitted liability and the evidence presented by Davis showed

damages exceeding $2.5 million. Ford conceded in its brief that the evidence supported

a finding of at least 51% fault against it. (Ford Br. at 20). The record in other respects

indicates that the use of a general verdict did not prejudice Ford.

In order to determine the amount of compensatory damages needed by Davis to

live with her injury, both parties presented life care plans. The life care plans included

costs for future medical care, medications, therapeutic modalities, durable medical

needs, supplies, home support care, transportation, and architectural renovations but the

plans differed dramatically in cost. Dr. Terry Winkler, a physical rehabilitation
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medicine physician certified in the area of life care planning, presented a life care plan

on behalf of Davis, that totaled $2,411,941. Ford presented a life care plan by Des

Rubano, that totaled $1,618,207. Ford also presented a plan based on the assumption

that Davis' condition improved with extensive therapy so that Davis would no longer

need a wheelchair and could return to employment. The cost for the third life care plan

was $529,735.

Davis had an economist testify that Davis' lost earnings capacity would be

$240,857 based on women with tenth grade educations. Davis' economist combined

the present value of the life care plan by Dr. Winkler, the medical bills and the lost

earnings capacity to find Davis' total economic loss was $2,528,579.

With compensatory and punitive damages, Davis requested the jury to award her

$6,002,099. In closing argument, Ford suggested that the $3.5 million requested for

compensatory damages was excessive by comparing that amount to the budget for

Ouachita County for 1997 which was $2,700,000. In closing argument, Ford did not

specify any view of reasonable damages. 

In light of the evidence and arguments presented by both parties, the amount of

damages awarded to Davis indicates the jury may have reduced the plaintiff's total

damages by applying comparative negligence principles.

Ford argues that the district court abused its discretion because there is

overwhelming support for the use of special verdicts interrogatories allocating fault in

comparative fault cases. See Skidmore v. Baltimore & O.R. Co., 167 F.2d 54 (2d Cir.),

cert. denied, 335 U.S. 816 (1948); Russo v. Rifkin, 497 N.Y.S.2d 41 (App. Div. 1985).

Judge Frank in Skidmore called the general verdict "as inscrutable and essentially

mysterious as the judgment which issued from the ancient oracle of Delphi." 167 F.2d

at 60. A New York court in Russo discussing the advantages of a special verdict said:
Several states require interrogatories or special verdicts in all cases, either by 3

statute, court rule, or decision. The Uniform Comparative Fault Act requires

interrogatories or special verdicts unless all parties agree to a general verdict. Three

states only allow general verdicts. See Henry Woods & Beth Deere, Comparative

Fault §18:1 (3d ed. 1996). 

Other courts have recognized the overwhelming support of the use of special

verdicts while finding no abuse of discretion in the use of a general verdict. See

Hammerquist v. Clarke's Sheet Metal, Inc., 658 F.2d 1319, 1323 (9th Cir. 1981)

("Mere custom to the contrary does not signal an abuse of discretion."); Railroad

Dynamics, Inc. v. A. Stucki Co., 727 F.2d 1506, 1514-15 (Fed. Cir. 1984) ("When and

if Rules 49, 50, and 51, Fed.R.Civ.P., are repealed, there may be room for the

restriction of juries to a fact finding role and for prohibition of general verdicts in patent

or other types of jury trials. Until that day, a prohibition of general verdicts . . .

cannot be accomplished by judicial fiat.").

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Whatever the acceptability of such determinations [general verdicts] in

less complicated times, in this era of complex issues and comparative

fault, the necessity that appellate bodies be provided with some

illumination of the jury's rationale has been rendered quite acute. In

providing that illumination, the special verdict has the advantage of

offering a more precise definition of the jury's finding . . . and it is for that

reason that the appellate judiciary and legal commentators have repeatedly

suggested that special verdicts or general verdicts with interrogatories be

utilized in comparative fault cases.

Russo, 497 N.Y.S.2d at 43 (internal citations omitted).

We recognize that many courts advocate the use of special verdicts.3

Nevertheless, there is another side to the argument. Judge Henry Woods, previously

a leading Arkansas trial attorney and now an experienced federal district judge in the

Eastern District of Arkansas, states in his treatise on comparative fault: 
Like federal courts, Arkansas leaves the decision whether to use a general

4

verdict to the discretion of the trial court. Hough v. Continental Leasing Corp., 630

S.W.2d 19, 21-22 (Ark. 1982).

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More than thirty-five years of trial experience under both the pure and

modified systems of comparative negligence, and having cases submitted

on both general verdicts and interrogatories have convinced the writer that

in many cases a general verdict is preferable. Particularly is this true in

two-party case. Juries have less trouble with a general verdict than with

interrogatories. It more nearly effectuates their wishes. 

Henry Woods & Beth Deere, Comparative Fault §18:1 (3d ed. 1996).

In Arkansas, most cases are submitted on general verdicts. This is true even

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when there are multiple parties, cross claims and counterclaims. Judge Woods

describes the use of special verdicts in federal court in the following passage:

Since the use of special verdicts and interrogatories is procedural,

the federal courts may use them, regardless of state statutes or practice.

For instance, interrogatories are sometimes used in comparative

negligence cases in the Mississippi federal courts, but never in state court.

As a general rule the federal courts will follow local practice. In Arkansas

where general verdicts are also widely used in state practice, they are

widely used in federal practice. 

Id. at §18:3. 

Special verdicts are valuable in many cases. However, good reasons may exist

to use a general verdict in some cases. The decision is left to the discretion of the trial

court under Rule 49.
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III. CONCLUSION

The record shows no prejudice to Ford in the use of the general verdict. Under

these circumstances, no abuse of discretion is demonstrated in the use of a general

verdict here. Accordingly, we affirm.

McMILLIAN, Circuit Judge, concurring.

I concur. I write separately only to encourage the district judges in this circuit

to exercise their discretion to submit special verdicts in civil cases, especially those

involving comparative fault issues. As noted in Skidmore v. Baltimore & O. R.R., 167

F.2d 54, 61 (2d Cir. 1948) (Frank, J.), “the general verdict . . . confers on the jury a

vast power to commit error and do mischief by loading it with technical burdens far

beyond its ability to perform, by confusing it in aggregating instead of segregating the

issues, and by shrouding in secrecy and mystery the actual results of its deliberations.”

Moreover, “when a jury returns an ordinary general verdict, it usually has the power

utterly to ignore what the judge instructs it concerning the substantive legal rules, a

power which, because generally it cannot be controlled, is indistinguishable for all

practical purposes, from a ‘right.’” Id. at 57-58 (footnotes omitted). Special verdicts

would lessen the secrecy and mystery as well as the threat of jury nullification. 

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.