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 cro ss-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 deeme d dismissed. -2- ___________ 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 For d Explor er vehicle rolled over her leg, notwithstanding its transmission was in a par k position. In her claim against the Ford Motor Co mpany ("Ford"), the jury awarded her $1.2 million in a general verdict. Ford admitted the vehicle was defective and th e defect ca used the accident, but it asserted Davis' negligence in disregarding warnings to set he r parking brake contributed to the accident and that such issue should hav e bee n submitted by the trial court to the jury on a special verdict form, rather than b y 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 th e transmissionwas in the park position. Davis' injuries required extensive medica l treatment including four hospitalizations totaling fifty-five days, seven surgeries, thirtyninedebridement procedures, twenty-five physician visits, fifty-six home health car e visits , fifty-three physical therapy treatments and treatment with forty-two differen t medications. Davis' medical expenses totaled $116,942.10. Two doctors testified for-3-

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 introducedevidence 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 o f danger. The expert also testified that Ford knew vehicle owners commonly rel y exclusively on the park mechanism to hold their vehicles in place. Ford's documents also revealed that t

here were 1,547 reported "roll in park" incidents on vehicles with A4LD tr ansmissions. 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, a lthough admitting liability, submitted evidence that Davis ignored fou r 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 aggressiv e physi cal therapy. Ford sent Davis in 1993 to an orthopedic surgeon in Denver, wh o advised aggressive physical therapy that Davis did not pursue.
Ford requested a special verdict that would allocate fault between Davis an d Ford a nd assess Davis' total damages. Ford's Proposed Interrogatory 2 would hav e asked the jury "[d]o you find from a preponderance of the evidence that there wa s negligence on the part of Plaint iff, 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-4-

injuries o r 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 dis trict 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 gr

eater 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, t he jury, assess damages in favor of Sandra Gail Davis i n the amount of: $

Add. at 123.
II. DISCUSSION Ford argues that the district co urt abused its discretion by refusing to submit the requested special verdict. Pursuant to FederalRule of Civil Procedure 49, the decision whether to us e a special verdict is vested in the district court. This discretion of th e trial court ha s 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 fou nd 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. -5- 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. Specificall y, although Ford complains that the general verdict was confusing, we conclu de that the verdict form and the jury instructions were not unclear. I n addition, during closing argument Ford used an overhead projector to further explain Arkansas' co mparative negligence principles. The district court instructed the jury on Arkansas comparative fault using Arkansas Model Jury Instruction 2115.
Forddoes not complain about the amount of the award. In fact, the amount of compensatory damages awarded is substantially less than the amount advanced b y Davis. In all likelihood, this reflects the jury allocated some degree of responsibility to the pl aintiff. Ford admitted liability and the evidence presented by Davis showe d 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 pre sented life care plans. The life care plans included costs f or future medical care, medications, therapeutic modalities, durable medica l needs, supplies, home support care, transportation, and architectural renovations but the plans differed dramatically in cost. Dr. Terry Winkler, a physical rehabilitation-6-

medicine physician certifie d 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 De s 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 b e $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 los t 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 fo r compensa tory damages was excessive by comparing that amount to the budget fo r 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 da mages awarded to Davis indicates the jury may have reduced the plaintiff's tota l damages by applying comparative negligence principles.
Ford ar gues that the district court abused its discretion because there i s overwhelming su

pport 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.2 d 41 (App. Div. 1985). Judge Frank in Skidmore called the general verdict "as inscrutable and essentiall y mysterious as the judgment which iss ued from the ancient oracle of Delphi." 167 F.2d at 60. A New York court in Russo di scussing the advantages of a special verdict said:Several states require interrogatories or special verdicts in all cases, either by 3 statu te, court rule, or decision. The Uniform Comparative Fault Act require s interrogatories or special verdicts unless all parties agree to a general verdict. Three states only allow general verdicts. See Henry Woods & Beth Deere, Comparativ e Fault §18:1 (3d ed. 1996). Other cour ts have recognized the overwhelming support of the use of specia l verdicts while finding no abuse of discretion in the use of a general verdict. Se e Ha mmerquist

v. Clarke's Sheet Metal, Inc. , 658 F.2d 1319, 1323 (9th Cir. 1981 ) ("Mer e custom to the contrary does not signal an abuse of discretion."); Railroa d 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 th e restriction of juries to a fact finding role and for prohibition of ge neral verdicts in patent or other types of jury trials. Until that day, a prohibition of general verdicts . .

. cannot be accomplished by judicial fiat."). -7- Wha tever the acceptability of such determinations [general verdicts] i n less com plicated times, in this era of complex issues and comparativ e fault, the necessity that appellate bodies be provided with som e illu minationof the jury's rationale has been rendered quite acute. I n pro viding that illumination, the special verdict has the advantage o f offering a more precise definition of the jury's finding . . . and it is for that reason that the appellate judiciary and legal commentators ha ve repeatedly suggested that specialverdicts or general verdicts with interrogatories be utilized in comparative fault cases.

Russo , 497 N.Y.S.2d at 43 (internal citations omitted).
We rec ognize that many courts advocate the use of special verdicts. 3 Nevertheless, there is another side to the argument. Judge Henry Woods, previously aleading 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 genera l 4 verdict t o the discretion of the trial court. Hough v. Continental Leasing Corp. , 63 0 S.W.2d 19, 21-22 (Ark. 1982). -8- More than thirty-five years of trial experience under both the pure an d modified systems of comparative negligence, and having cases submitted on both general verdicts and interrogatories have convin ced the writer that in many cases a general verdict is preferable. Particularly is this true i n two-part y 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 eve n 4 when the re are multiple parties, cross claims and counterclaims. Judge Wood s describes the use of special verdicts in federal court in the following passage:

Since th e use of special verdicts and interrogatories is procedural, the federal courts may use them, regardless of state statutes or practice

. Forin stance, interrogatories are sometimes used in comparativ e negligence cases in the Mississippi federal courts, but never in state court. As a general rule the federal courts will follow local practi ce. In Arkansas whe re general verdicts are also widely used in state practice, they ar e 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 c ases. The decision is left to the discretion of the trial court under Rule 49.-9-

III. CONCLUSION
The record shows n o prejudice to Ford in the use of the general verdict. Under these cir cumstances, no abuse of discretion is demonstrated in the use of a genera l 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 thos e 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 p ower to commit error and do mischief by loading it with technical burdens fa r beyond its abi lity to perform, by confusing it in aggregating instead of segregating the issues, and by shrouding in secrecy a nd mystery the actual results of its deliberations.” Mor eover, “when a jury returns an ordinary general verdict, it usually has the powe r utterly to ignore what the judge instructs it concerning the substantive legal rules, a power whi ch, because generally it cannot be controlled, is indistinguishable for al l 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.