* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 10 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

BRENDA K. JOHNSON,

Plaintiff-Appellee,

v. WAL-MART STORES, INC.,

Defendant-Appellant. No. 98-2062 (D.C. No. CIV-96-760-JP/JHG)

(D. N.M.)

ORDER AND JUDGMENT *

Before BALDOCK, EBEL, and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.-2-

Plaintiff Brenda Johnson brought this action to rec over damages from defendant Wal-Mart Stores, Inc. for injuries from afall she sustained in WalMart’s Albuquerque, New Mexico store. Alleging that Wal-Mart was negligent, Ms. Johnson claimed she suffered severe injury to h er knee when she slipped and fell because of a spilled Icee, a frozen drink sold at Wal-Mart’s snack bar. A jury found Wal-Mart to be one-hundred percent liable forMs. Johnson’s injuries and awarded her compensatory damages in the amount of $ 407,603.29. Wal-Mart appeals the district court’s denial of its motion f or a new trial, or in the alternative, remittitur. We affirm. On August 26, 1993, Ms. Johnson entered the Wal-Mart store to return car mats she had purchased the day before. She sought help from a store associate who accompanied her to the automotive section of th e store. Returning to the customer service desk by a different route, she sli pped and fell on the spilled Icee. At trial, Ms. Johnson testified that, following the fall she experienced neck and back pain which shortly resolved itself. See Appellant’s App. at 110. Six weeks after the accident, however, she saw a doctorcomplaining of knee pain. She subsequently underwent an extended period of tr eatment including a cast, two surgeries, three knee braces, and physical therapy. Ms. Johnson’s orthopedic surgeon, Dr. Jeffrey Felter, testified at depositio n that he was reasonably certain that the injury to Ms. Johnson’s knee was as a result of the fall. See id. at 183.-3-

Although Dr. Felter concluded that Ms. Johnson’s kn ee would never regain preinjury status, and she would suffer pain with activ ity, he opined that she was not disabled. See id. at 189. At the time of the fall, Ms. Johnson was employed a s an apartment house manager which included paper work as well as cleani ng vacant apartments. Because her husband filled in for her and relieved her of the strenuous work activities, she did not lose any earnings due to he r injury. Ms. Johnson testified that, following the accident, she was unable to eng age in activities such as bowling and swimming with her older daughter, see id. at 124, or properly caring for her infant daughter, see id. at 125. “Federal law governs the granting or denial of a mo tion for a new trial in diversity actions in federal court.” Blanke v. Alexander , 152 F.3d 1224, 1235 (10th Cir. 1998). In reviewing the district court’ s denial of Wal-Mart’s motion for new trial, we do not determine the sufficiency or weight of the evidence, but limit our review to whether the district court’s de cision was a manifest abuse of discretion. See id. Likewise, “‘federal law governs the decision whether a remittitur should be granted in a diversity case.’” Id. at 1236 (quoting K-B Trucking Co. v. Riss Int’l Corp. , 763 F.2d 1148, 1162 (10th Cir. 1985)) (further quotation omitted). We afford the district court’s denial of Wal-Mart’s motion for remittitur considerable deference on appeal, an d “absent an award so1 Wal-Mart argues that Ms. Johnson’s trial testimony as to the restrictions on

her activities conflicted with her testimony in a p rior deposition and was, therefore, incredible. A trial court, however, “sh ould not order a remittitur or a new trial when the size of the verdict turns upon c onflicting evidence and the credibility of witnesses.” See Palmer v. City of Monticello , 31 F.3d 1499, 1508 (10th Cir. 1994). -4- excessive or inadequate as to shock the judicial co nscience and to raise an irresistible inference that passion, prejudice, corruption or other improper cause invaded the trial, the jury’s determination of the fact is considered inviolate.” Id. (further quotation omitted). Wal-Mart argued that the damage award to Ms. Johnso n of $407,603.29 was excessive, contrary to the evidence, and inappr opriately predicated on passion and prejudice. In denying Wal-Mart’s motion for ne w trial, or in the alternative for remittitur, the district court held that, based on Dr. Felter’s testimony as to Ms. Johnson’s prognosis, Ms. Johnson’s testimony as to her limitations and pain, and the fact that the award amounted to less that $ 10,000 per year through Ms. Johnson’s life expectancy, the award was not excess ive. We agree. The record reveals that Ms. Johnson suffered a seri ous knee injury requiring extensive treatment, repeated surgeries, and continued physical therapy. As her doctor testified, her knee would never be no rmal and she would continue to suffer restricting pain which limited her activities. 1 Her medical bills, past and-5-

future totaled approximately $26,600. Therefore, b ased on the evidence, we conclude that the jury’s award of damages was reaso nable in light of the record as a whole, and the district court was correct in deny ing Wal-Mart a new trial. Nothing in the record suggests that the jury was improperly motivated in making the award. “Unlike special damages, such as medical expenses and loss of earnings, which require specific proof, general damages for pain and suffering, such as those present here, are not susceptible to proof by a set dollar amount.” Blanke , 152 F.3d at 1237. Here, the amount of the award did not shock the district court’s judicial conscience, and it does n ot shock ours. Therefore, we conclude that the award of damages was appropriate in light of the evidence, and the district court did not err in denying Wal-Mart’ s request for remittitur. The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED.

Entered for the Court

David M. Ebel Circuit Judge