1 United States Court of Appeals

Fifth Circuit



## FILED

November 25, 2003

Charles R. Fulbruge III

Clerk Revised December 19, 2003

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 02-41527

__________________________

FRANK J. VOGLER, Etc, et al.,

Plaint iffs,

FRANK J. VOGLER, Individually and As Representative of the

Estates of Becky Franklin Vogler and Kallie Nichole Vogler,

deceased

Plaintiff - Appellee,

versus

LLOYD S. BLACKMORE; NEW STAR FREIGHT,

New Star Freight Serve, Inc.,

Defendants - Appellants.

___________________________________________________

Appeals from the United States District Court

for the Eastern District of Texas

___________________________________________________

Before REAVLEY, JONES, and CLEMENT, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

In this case Appellants Lloyd S. Blackmore (“Blackmore”) a nd New Star Frei ght Servi ce

( “New Star”) contend the district court erred in admitting the testimony of a “grief expert” and in

upholding the jury’s damage award to Appellee Frank Vogler (“Mr. Vogler”) for the future mental1 The speed limit on Highway 69 at the point of the collision was 70 miles per hour.

2 anguish and loss of society due to the deaths of his wife and young child. In addition, Blackmore and

New S t ar maint ain the district court erred in upholding the jury’s award for conscious pain and

suffering on the part of the decedents. We affirm in part, order a remittitur in part, and reverse in

part.

I. FACTS AND PROCEEDINGS

Blackmore, employed by New Star as a truck driver, was driving a tractor-trailer rig south

on Hi ghway 69 near Huntington, Texas. Becky Vogler (“Mrs. Vogler”) and her three-year-old

daughter Kallie Vogler (“Kallie”) were approaching Blackmore’s rig on Highway 69, driving north.

Kallie was in a child-restraint seat in the backseat of Mrs. Vogler’s Honda Accord. Blackmore’s

tractor-trailer veered onto the right shoul der, ro de the shoulder for some distance, and then came

back onto the highway. Blackmore over-corrected, however, and the truck crossed the center line

and jack-knifed into Mrs. Vogler’s lane. At some point during these events, Mrs. Vogler’s car left

her lane of traffic and edged both passenger-side wheels off the pavement. In addition, the Honda’s

speed slowed to 39 miles per hour. 1 The rig first struck the front of Mrs. Vogler’s car. The Honda

then rotated around so that the passenger side was hit by the truck. Finally, the tractor-trailer ran

over the roof of the car from front to back. Both Mrs. Vogler and Kallie were dead by the time they

were removed from their vehicle.

Mrs. Vogler’s husband, Mr. Vogler; Mrs. Vogler’s surviving minor children by her first

marriage, Shelby Conway and Clayton Conway (“Shelby and Clayton”); and Mrs. Vogler’s parents,

Henry and Debra Franklin (“the Franklins”) filed a wrongful death suit against Blackmore and New

Star. Shelby and Clayton settled with Blackmore and New Star prior to trial, and the Franklins2 Thanatology is defined as “[t]he scientific study of death, its causes and phenomena.

Also (orig. U.S. ), the study of the effects of approaching death and of the needs of the terminally

ill and their families.” O XFORD E NGLISH D ICTIONARY 862 (2d ed. 1989).

3 settled after the verdict but before the appeal. Only Mr. Vogler’s claims, and more specifically, his

damages, are currently at issue. Blackmore and New Star do not contest the jury’s finding of liability

on appeal.

At trial, in addition to testimony by Mr. Vogler himself, the collective Plaint iffs put forth an

expert in thanatology, 2 referred to by Blackmore and New Star as a “grief expert.” This expert, Dr.

Phyllis Silverman (“Dr. Silverman”), has a bachelor’s degree in psychology and sociology, a master’s

in social w o rk, and a Ph.D. in public health. She is also licensed as a social worker. She has

published twenty-six papers and approximately fifty-two “other” writings in peer-reviewed journals,

chapters in books, and complete books. She was a visiting scholar and resident in women’s studies

at Brandeis, an a djunct professor at Smith College School for Social Work, and a professor and

professor emeritus at the Massachusetts General Hospital Institute of Health Professions. Because

she had not interviewed or evaluated the collective Plaint iffs, the district court confined her testimony

to general theories of grief and recovery.

After finding Blackmore and New Star liable for the deaths of Mrs. Vogler and Kallie, the jury

awarded Mr. Vogler damages both individually and as the representative of the estates of his wife and

child. The jury awarded $200,000 to Mrs. Vogler’s estate for her pain and mental anguish prior to

her death, and $200,000 to Kallie’s estate for her pain and mental anguish prior to her death. Mr.

V ogler received $400,000 for his “pecuniary loss, loss of companionship and society, and mental

anguish [because of the loss of Mrs. Vogler] that was sustained in the past,” and $1,500,000 for his4

future suffering in the same capacity, as well as his loss of Mrs. Vogler’s future earnings. He was

similarly compensated $200,000 for hi s lo ss of companionship and society and mental anguish

sustained in the past because of Kallie’s death, and $1,300,000 for his future suffering because of the

loss of his daughter. No punitive damages were awarded by the jury. The district court upheld the

jury awards against Blackmore and New Star, denying their Motions for New Trial or for Remittitur,

and for Partial Judgment as a Matter of Law. Blackmore and New Star timely appeal.

II. STANDARD OF REVIEW

“ [T]he question of admissibility of expert testimony . . . is reviewable under the abuse-ofdiscretion standard.” G en. Elec. Co. v. Joiner

, 522 U.S. 136, 143 (1997). Although this Court has

not ruled specifically on the admissibilit y of the testimony of grief experts, the admissibilit y of expert

e vidence generally is governed by the standard enunciated in D aubert v. Merrell Dow

Pharmaceuticals, Inc.

, 509 U.S. 579 (1993), which permits admission of testimony only if it is both

relevant and reliable. Id. at 589. Even if the expert testimony was improperly admitted, “we next

review the error under the harmless error doctrine, affirming the judgment, unless the ruling affected

substantial rights of the complaining party.” B ocanegra v. Vicmar Servs., Inc. , 320 F.3d 581, 584

(5th Cir. 2003).

Blackmo re and New Star characterize the future damages awarded to Mr. Vogler as

excessive, entitling Blackmore and New Star to either a new trial or remittitur. When a jury’s

findings are not being attacked directly, but instead are challenged through a district court’s decision

not to grant a new trial or remittitur, the standard of review is one of abuse of discretion. Esposito

v. Davis

, 47 F.3d 164, 167 (5th Cir. 1995). “[T]here is no abuse of discretion denying a motion for

new trial unless there is a complete absence of evidence to support the verdict.” Id.3 Blackmore and New Star admit that they failed to make a Rule 50(a) motion for

judgment as a matter of law, and that instead they made a Rule 50(b) renewed motion for

judgment as a matter of law at the close of all evidence. As Mr. Vogler and the collective

Plaintiffs below did not object to the Rule 50(b) motion as failing to follow a Rule 50(a) motion,

they are precluded from arguing waiver on appeal, and thereby securing a more favorable

standard of review. See Thompson and Wallace of Memphis, Inc. v. Falconw ood Corp. , 100

F.3d 429, 435 (5th Cir. 1996) (noting that although “[g]enerally a party must make both a preverdict rule 50(a) motion and a post-verdict rule 50(b) motion to preserve the right to appellate

review,” when “the plaintiffs did not raise the waiver bar in opposing the rule 50(b) motion, they

may not raise that bar on appeal”).

5 We give special solicitude to findings of damages for grief and emotional distress, in large part

[b]ecause the assessment of damages for grief and emotional distress is so dependent

o n the facts and is so largely a matter judgment, we are chary of substit ut ing o ur

views for those of the trial judge. He has seen the parties and heard the evidence; we

have o nly read papers. The jury’s assessment of damages is even more weighted

against appellate reconsideration, especially when

. . . the trial judge has approved it.

In re Air Crash Disaster Near New Orleans, L a. on July 9, 1982 , 767 F.2d 1151, 1155 (5th Cir.

1985). It is under this narrow review that the jury’s awards to Mr. Vogler must be evaluated.

On the issue of whether damages should be awarded at all, this Court treads light ly upon jury

verdicts, as the standard of review is very deferential. 3 “Absent an error of law, the reviewing court

will sustain the amount of damages awarded by the fact finder, unless the amount is clearly erroneous

or so gross or inadequate as to be contrary to right reason.” Sockw ell v. Phelps , 20 F.3d 187, 192

(5th Cir. 1994). “Thus, reversal is proper ‘only if no reasonable jury could have arrived at the

verdict.’” Stevenson v. E. I. DuPont De Nemours and Co. , 327 F.3d 400, 405 (5th Cir. 2003)

(int ernal citations omitted). The evidence is reviewed in the light most favorable to the prevailing

party, and “[o]n each issue, ‘we will not disturb the jury’s verdict unless, considering the evidence

in the light most favorable to [the prevailing party], the facts and inferences point so overwhelmingly4 As the issue of reliability was not properly raised by Blackmore and New Star, we do not

address whether the testimony of a grief expert is, generally speaking, reliable.

6 to [the non-prevailing party] that reasonable jurors could not have arrived at a verdict except in [their]

favor.’” Streber v. Hunter , 221 F.3d 701, 721 (5th Cir. 2000) (internal citations omitted).

III. DISCUSSION

A. The Grief Expert

Daubert and its progeny suggest that several factors weigh in favor of findi ng expert

testimony to be sufficiently reliable

. I d. at 593-94. The Supreme Court in Kumho T ire Co. v.

Carmichael further suggested that the Daubert standard is a flexible one, and that the district court

should “make certain that an expert, whether basing testimony upon professional studies or personal

experience, employs i n t he courtroom the same level of intellectual rigor that characterizes the

practice of an expert in the relevant field.” Kumho , 526 U.S. 137, 152 (1999).

While Blackmore and New St ar use the word “reliable” in their argument against the

admission of Dr. Silverman’s testimony, they substantively allege that the testimony was not relevant

because it was unconnected to the case. Because the focus of Blackmore and New Star’s arguments

is whether Dr. Silverman’s testimony was connected to the case such that it would assist the jury in

determining a fact at issue, the focus is properly the relevance of her testimony, which, according to

Daubert

, is a question of “whether the reasoning or methodology properly can be applied to the facts

in issue.” 509 U.S. at 592-93. 4

This Court, while not specifically addressing the relevance of a grief expert, has opined on the

intersection of relevance and expert testimony. In B ocanegra v. Vicmar Services, Inc.

, for instance,5 The Advisory Note to Rule 702 states:

There is no more certain test for determining when experts may be used than

the common sense inquiry whether the untrained layman would be qualified

to determine intelligently and to the best degree the particular issue without

enlightenment from t ho se having a specialized understanding of the subject

involved in the dispute.

F ED

. R. E VID . 702, Advisory Committee Note.

6 Navarro de Cosme v. Hospital Pavia , 922 F.2d 926, 931-32 (1st Cir. 1991); El-Mesw ari

v. Washington Gas Light Co. , 785 F.2d 483, 487 (4th Cir. 1986).

7 this Court concluded that the district court improperly excluded as irrelevant the expert testimony of

a toxicologist about the effects of marijuana on cognitive functions after the “high.” 320 F.3d 581,

587 (5th Cir. 2003). The district court in B ocanegra h ad excluded the testimony because the

toxicology expert could not point to any causal connection between the defendant’s marijuana use

and the accident. I

d. On appeal, however, t his Co urt explained that after the expert’s extensive

testimony about studies demonstrating the effect of marijuana use on cognitive functions,

[b]ecause of [the expert’s] knowledge and trainin g in t he field of toxicology, his

test imo ny wo uld have been helpful to the fact-finder, n ot because it would have

explained the connection between the marijuana and the accident , but because it

explained the effect of recent ingestion of marijuana on an in dividual’s cognitive

functions, including perception and reaction time, both critical factors in any accident.

Id. at 587 (emphasis added). It is therefore unnecessary given these facts that Dr. Silverman’s

testimony explain the connection between Mr. Vogler’s grieving and the accident.

Blackmore and New Star insist that Dr. Silverman’s testimony would not have “assisted” the

jury, see Federal Rule of Evidence 702, because grief is a universally experienced emotion that is well

within the common sense understanding of jurors and requires no expert testimony. 5 In support of

t his contention, Blackmore and New Star point to several federal courts that have upheld t he

exclusion, in varying circumstances, of proffered grief expert testimony. 6 The admission of such8

testimony, claim Blackmore and New Star, might unduly influence the jurors with its scientific

appearance and might even serve as a surrogate for the testimony of a plaintiff.

It is undenia ble t hat all of the dangers alluded to by Blackmore and New Star lurk in the

relativel y unt est ed area of grief expert testimony. But Blackmore and New Star do not argue

categorically against the admission of such testim o ny, nor do they challenge the credentials of Dr.

Silverman. Thus, they acknowledge that the decision to admit her testimony lay in the trial court’s

bal ancing of several factors – whether the jury was competent to assess the evidence intelligently

without expert testim

o ny, whether the evidence had probative weight, and whether the risk of

prejudice was greater. Even the cases cited by Blackmore and New Star permitted the exclusion of

grief expert testim

o ny as an exercise of the trial court’s discretion

. Because Dr. Silverman’s

testimony was relevant, if not necessary to the jury, the district court did not abuse its discretion in

admitting the evidence.

Further, even if we were to find that the district court abused its discretion in admitting Dr.

Silverman’s testimony, the admission of that testimony was harmless. The facts of this case are

tragic: a mother and child are dead, leaving a grieving father to care for his wife’s children from a

prior marriage while attempting to care for himself. Evidence presented by the collective Plaintiffs

at trial included pictures of a happy family and the mangled, flattened remains of Mrs. Vogler’s car.

It is highly unlikely that Dr. Silverman’s testimony aided in the jury’s resolution of the case or in its

awards to Mr. Vogler.

B. The Award to Mr. Vogler9

When evaluatin g jury awards, this Court reviews such awards in the context of awards in

cases with similar injuries in the relevant jurisdiction. S alinas v. O’Neill

, 286 F.3d 827, 831 (5th Cir.

2002). This Circuit

has limited searches for federal discrimination law awards to the “relevant

jurisdiction” of the Fifth Circuit. Id. The relevant jurisdiction in a wrongful death case is the state

providing the substantive law for the claim. Therefore Texas wrongful death cases and Fifth Circuit

cases applying Texas wrongful death law comprise the relevant jurisdiction.

This Circuit employs the “maximum recovery” rule when granting a remittitur. To this end,

damages are reduced to the maximum amount a reasonable jury could have awarded. G iles v. Gen.

Elec. Co.

, 245 F.3d 474, 488 (5th Cir. 2001). In order to calculate this amount, this Court looks not

only to actual awards, but may also apply a mult iplier of fift y percent to past similar awards, so long

as no multiplier was used in calculating those past awards. Salinas , 286 F.3d at 831, 831 n. 6.

(1) Jury damage awards for the death of a spouse.

Few, if any, of the awards cited by either side differentiate between past and future suffering

and loss of companionship. Because Blackmore and New Star do not object to the awards by the jury

for Mr. Vogler’s suffering and loss of companionship in the past, only cases in which future damages

are explicitly designated are proper bases of comparison.

Only one case in the relevant jurisdiction, Douglass v. Delta Air Lines, Inc.

, 709 F. Supp. 745

(W.D. Tex. 1989), aff’d in part, rev’d in part , 897 F.2d 1336 (5th Cir. 1990) has divided damages7 Other cases cited by the parties which do not differentiate between past and future

suffering include: Larsen v. Delta Air Lines, Inc. , 692 F. Supp. 714 (S.D. Tex. 1988) ($1 million

for loss of companionship and mental anguish, past and future, for a woman’s loss of husband);

Hope v. Seahorse, Inc. , 651 F. Supp. 976 (S.D. Tex. 1986) ($225,000 for loss of companionship

and mental anguish, past and future, for a woman’s loss of husband and $350,000 for future

mental anguish and future loss of companionship for minor child’s loss of parent); Air Florida,

Inc. v. Zondler , 683 S.W.2d 769 (Tex. App. 1984) ($500,000 for loss of consortium and

companionship, past and future, for a woman’s loss of husband. It is important to note that, at

the time, Texas did not permit recovery for mental anguish in a wrongful death suit for loss of a

spouse absent physical injury. As a result, the court on appeal eliminated an additional $300,000

award for past and future mental anguish to the wife. Under current interpretations of Texas

wrongful death law, the amount of recovery would be $800,000); Monsanto Co. v. Johnson , 675

S.W.2d 305 (Tex. App. 1984) ($500,000 for loss of consortium and companionship, past and

future, for a woman’s loss of husband. At the time of this case, Texas did not permit recovery for

mental anguish in a wrongful death suit for loss of a spouse absent physical injury).

10 as they are herein contested. 7 In Douglass

, a woman was awarded $400,000 for her future mental

anguish and future loss of companionship due to the loss of her husband.

Based on Douglass

, the maximum recovery for Mr. Vogler, using the 50% multiplier, would

seem to be $600,000. The award to Mr. Vogler for his future damages, however, included pecuniary

loss that would be sustained in the future, as well as loss of companionship and mental anguish. At

trial, Mr. Vogler’s economic expert testified that the present value of Mrs. Vogler’s future earning

capacity a s a dent al assistant was between $455,000 and $700,000, with an addition of up to

$200,000 for the value of household services. Although Blackmore and New Star characterize the

future pecuniary loss as the $200,000 difference between the award for Mrs. Vogler and the award

for Kallie, such justification was not made by the jury. The jury therefore could have accepted Mr.

Vogler’s expert’s valuation of his wife’s future earnings and future household services to be as high

as $900,000. Added to the maximum amount recoverable for future pain and suffering, even under

the cases cited by Blackmore and New Star, the jury could have reasonably awarded Mr. Vogler $1.58 $600,000 (future mental anguish) + $700,000 (future earning capacity) + $200,000

(future value of household services) = $1,500,000.

11 millio n 8 for the “pecuniary loss, loss of companionship and society, and ment al anguish that in

reasonable probability will be sustained in the future.” We therefore affirm the ruling of the district

court upholding the award to Mr. Vogler for the loss of his wife.

Blackmore and New Star distinguished higher awards as factually dissimilar to the case at

bar. Because no remittitur is warranted under the maximum recovery rule using cases alleged by

Blackmore and New Star to be sufficiently similar, the issue of higher awards need not be

addressed.

(2) Jury damage awards for the death of a child.

None of the cases cit ed by eit her Blackmore and New Star or Mr. Vogler address awards

made in a wholly similar situation -- where a man has lost both his wife and his child. Further, only

one of th e cases seems to distinguish between past and future loss of companionship and mental

anguish. In the case of H ask ett v. Butts , 83 S.W.3d 213 (Tex. App. 2002), a woman was

compensated for her future pain and mental anguish at the loss of her stillborn child with an award

of $100,000. Although this case deals specifically with future pain and mental anguish, we find that

it is not a “similar” injury for purposes of comparison with the present case. Texas law deals with

the issue of stillborn fetuses and mental anguish as separate from the death of a child, since, under

Texas law, “a fetus is a part of the mother’s body.” 83 S.W.2d at 218. Because of this definition of

the fetus, a jury cannot include in its damage award amounts for loss of society, companionship, or9 We note that even Blackmore and New Star do not suggest that $100,000 plus the fifty

percent multiplier is appropriate compensation for Mr. Vogler’s loss.

10 Mr. Vogler cites Sanchez v. Brow nsville Sports Ctr. , 51 S.W.3d 643 (Tex. App. 2001)

($7.5 million to each parent for all damages, possibly including punitive damages, arising from the

loss of a child. No mention of mental anguish or loss of companionship specifically); Gen. Chem.

Co. v. De La Lastra , 852 S.W.2d 916 (Tex. 1993) ($5 million to each parent for mental anguish

and loss of companionship, past and future, for the loss of two sons. Father underwent therapy,

mother described as “nonfunctional”); and Wellborn v. Sears, Roebuck & Co. , 970 F.2d 1420 (5th

Cir. 1992) ($1,225,000 for mental anguish and loss of companionship, past and future, to a single

mother for loss of a child). At the opposite extreme, Blackmore and New Star cite Russell v.

Ramirez , 949 S.W.2d 480 (Tex. App. 1997), in which a woman was awarded $750,000 for loss

of companionship and mental anguish, past and future, for the loss of her son.

12 affection due to the loss of the fetus. Id. at 220. H askett is therefore not an appropriate comparison

for the case at bar. 9

Complicating our review of the award to Mr. Vogler for Kallie’s death is that no cases cited

by either party separate past and future loss of companionship and mental anguish. 1 0 All that seems

evident from the relevant caselaw is that awards for the loss of a child vary widely.

Our review o f t he caselaw reveals that there is no factually similar case in the relevant

jurisdiction; therefore, the maximum recovery rule is not implicated. As we noted in another case in

which remittitur was requested, “[b]ecause the facts of each case are different, prior damages awards

are not always controlling; a departure from prior awards is merited ‘if unique facts are present that

are not reflected within the controlling caselaw.’” L ebron v. United States

, 279 F.3d 321, 327 (5th

Cir. 2002). Nothing recommends remittitur in this case, and we will not substitute our judgment for

that of the jury. As the judgment o f t he district court in upholding the award is not contrary to

reason, we affirm.

C. The Award to the Estate of Mrs. Vogler13

Mr. Vogler, as representative of the estate of Mrs. Vogler, was awarded $200,000 for Mrs.

Vogler’s conscious pain and suffering and mental anguish prior to her death. Blackmore and New

Star argue that this award lacks evidentiary support, or, in the alternative, that this award is excessive.

B lackmo re and New Star first contend that the collective Plaintiffs presented insufficient

evidence at trial of the suffering of Mrs. Vogler and Kallie prior to their deaths. They point out that

the expert put forth by the collective Plaintiffs estimated that, at most, the accident took place over

a period of mere seconds, and that, as a result, any award for conscious pain and suffering is based

purely on speculation. To buttress this argument, Blackmore and New Star offer cases decided under

Texas law in which damages for conscious pain and suffering were upheld, based in part upon

available testimony. S ee Torrington Co. v. Stutzman

, 36 S.W.3d 511 (Tex. App. 1999), aff’d in part,

rev’d in part

, 46 S.W.3d 829 (Tex. 2000) (upholding a jury verdict when another passenger testified

to his mental anguish as a helicopter crashed); Gen. Motors Corp. v. Saenz , 829 S.W.2d 230 (Tex.

App. 1992), rev’d on other grounds

, 873 S.W.2d 353 (Tex. 19 94) (upholding a jury verdict for

conscious pain and suffering where the impending crash caused “panic steering”).

We find the cases cited by Blackmore and New Star somewhat persuasive. There is a case,

however, t hat is nearly factually identical, and therefore more persuasive. In R odriguez v. Great

Western Leasing, Inc. , 882 F. Supp. 99 (E.D. Tex. 1995), an estate pursued a survival action after

the collision of a pick-up truck and an eighteen -wheeler resulted in the deaths of the three truck

passengers. 882 F. Supp. at 99. Aft er t he jury awarded substantial damages for the decedents’

mental anguish prior to death, the defendants moved for a judgment notwithstandi ng the verdi ct,

arguing, like Blackmore and New Star, that there was no evidence “to sup port a jury findi ng that

decedents were consciously aware of an impending collision or otherwise suffered mental anguish.”14

Id. at 100. The district court acknowledged that there was no direct evidence of mental anguish; as

a result, the issue was whether the jury was presented with evidence suf ficient to permit it to use

discretion to award damages. In evaluating the plausibility of alternate scenarios that would have

resulted in the crash, the court observed that

[a]fter considering each [plausible scenario], the court concludes there was sufficient

circumstantial evidence for the jury to reasonably infer that occupants of the pick-up

truck became aware of the impending crash with the defendants’ truck and oversized

load immediately prior to the collision

. Under each scenario, the decedents’ vehicle

entered into a skid prior to the collision with the eighteen-wheel rig. This is the type

of event which more likely than not would command attenti on despite routine

distractions, and compel persons to assess whether they were in imminent peril. I f the

jury found that decedents became aware of peril, the jury could also infer under the

circumstances that they sensed they w ere facing certain catastrophic injury

.

Id. (emphasis added). Because the district court found it permissible for the jury to make two

inferences about the circumstances surrounding the crash in order to arrive at the conclusion that the

decedents had suffered some mental anguish prior to their deaths, there was legally sufficient evidence

of pre-death emotional suffering, precluding the grant of a judgment notwithstanding the verdict. I d.

Similarly, the collective Plaint iffs prese nt ed evidence to the jury, albeit circumstantial

evidence, that Mrs. Vogler was aware of the impending crash and its possible consequences. There

was evidence that Mrs. Vogler was driving on the shoulder of the road and had slowed her speed to

thirty-nine miles per hour, which could permit the jury to infer that she was taking evasive action prior

to impact. It could be argued that the shifting of lanes by an oncoming truck, like the entering of a

skid in Rodriguez

, is “the type of event which more likely than not would command attenti on despite

routine distractions and compel persons to assess whether they were in imminent peril.” 882 F. Supp.15

at 100. It is not even relevant for purposes of the jury’s determination of the mere presence of predeath mental anguish that the awareness lasted, at most, three and a half seconds. In Rodriguez , a

jury was permitted to find decedents suffered mental anguish prior to death even though the “greater

weight of the evidence suggests that there were only one or two seconds, or less

, of skidding before

the crash.” 882 F. Supp. at 101 (emphasis added). While the shortness of the suffering may affect

the computation of the damage award, see infra , it does not necessarily affect the discretion of the

jury in finding the presence of mental anguish prior to death. We therefore rule that there was

sufficient evidence presented to the jury that i t could have found that Mrs. Vogler experienced

conscious pain and suffering prior to her death.

Although the jury was presented with sufficient circumstantial evidence to conclude that Mrs.

Vogler felt conscious pain and suffering prior to her death, none of the fact ually-similar cases in this

Circuit supports the extensive damages awarde d by t he jury . In R odriguez

, the case that is most

factually similar to the present case, the dis t rict court observed that “[n]o published precedent

supports a finding of $100,000 for a few seconds of mental anguish preceding instantaneous death

under Texas law.” 882 F. Supp. 99, 100 (E.D. Tex. 1995). Because nothing in R odriguez suggested

extensive mental anguish

-- at most there were less than eight seconds, and more than likely only one

or two seconds of pre-impact mental suffering -- the court concluded the maximum award was

$20,000 per decedent. Id. at 101. Similarly, in H urst Aviation v. Junell

, the court concluded that

$20,000 was not

excessive for the pre-death mental anguish suffered by a pilot as he lost control of

his plane and crashed into the ground. 642 S.W.2d 856, 859 (Tex. App. 1982). Applying the fifty

percent mult iplier to these awards, the maximum amount that could be awarded to the estate of Mrs.16

Volger for her conscious pre-death mental suffering is $30,000. We therefore order a remittitur such

that the total award to Mrs. Vogler’s estate is $30,000.

D. The Award to the Estate of Kallie

Mr. Vogler, as representative of the estate of Kallie, was awarded $200,000 for her conscious

pain and mental angu ish prior t o her death. Blackmore and New Star argue that this award lacks

evidentiary support, or, in the alternative, that this award is excessive.

While the movements of Mrs. Vogler’s car prior to impact could support a jury finding that

she was aware of the impending crash, there is absolutely no evidence, circumstantial or otherwise,

to suggest that three-year-old Kallie, secured in her child restraint seat directly behind Mrs. Vogler,

had any hint of the impen ding disast er. Mr. Vogler contends that “certainly Kallie perceived her

mo ther’s panic, and was frightened herself.” This inference built upon the suppositio n o f Mrs.

Vogler’s panic is simply too attenuated for reasonable jurors to have arrived at a verdict in favor of

K allie’s estate. Further, because we permitted a jury finding in favor of the conscious pain and

suffering of Mrs. Vogler based in large part on the circumstantial evidence of her awareness of the

impending collision, we find Mr. Vogler’s argument that Kallie suffered additional conscious mental

anguish because her porti on of the car was crushed milliseconds after the driver’s seat was impacted

unavailing. We must therefore co nclude that the district court erred in upholding an award for

Kallie’s conscious pain and suffering prior to her death.

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED with respect to

the admission of Dr. Silverman’s expert testimony and the jury award for Mr. Vogler’s future pain17

and suffering because of the deaths of his wife and daughter. The judgment of the district court is

also AFFIRMED with respect to its affirmance of the jury’s finding of conscious pain and suffering

on the part of Mrs. Vogler. We order a REMITTITUR of the amount of damages awarded for Mrs.

Vogler’s conscious pa in and suffering for either a total award of $30,000 or a new trial for these

damages alone. Finally, the judgment of the district court is REVERSED with respect to the

affirmance of the jury’s award to the estate of Kallie for her conscious pain and suffering.REAVLEY, Circuit Judge, dissenting:

I agree with the judgment except for the rejection of the jury awards for the suffering of the mother

and child. Those $200,000 awards do not shock my conscience or seem to me to be unjust or

contrary to reason. Because that is the legal limit to my review, I would not interfere. The decision

about non-pecuniary damage awards is necessarily subjective. Apart from the Seventh Amendment

and with respect, I would personally prefer that the decision be made after a full and fair trial by these

eight jurors rather than by my fine judicial colleagues.

Becky Vogler saw the eighteen-wheeler veer off the pavement and then head into her path. She

slowed and t urned across the paved shoulder. But her Honda struck the right front wheel of the

Freightliner truck and was then jammed beneath the cab. With the cab on top of the Honda’s engine

a nd part of its passenger compartment, and with the trailer at an angle, the mass travel ed 90 feet

across muddy ground to hit and stop at a tree. Becky’s mental anguish may have existed only for

moments, but those were horrifying moments. Her pain was mercifully sudden, but felt.

Kallie Vogler was not an infant. She sat confined in the back seat and was most likely aware at some

point of her danger. It would be reasonable to believe that this young girl experienced terrible fright

and some pain before death. My colleagues hold that there can be no damages fo r Kallie’s estate

because there is no proof that she suffered any pain or mental anguish. While no witness could testify

to screams or terror, or to just how she was crushed, her position and age as she faced and felt this

horror supports the contrary finding.11 Madigan, Excessive Damage Review in The Fifth Circuit: A Quagmire of

Inconsistency. 34 Tex. Tech L.R. 429 (2003).

19 My colleagues compute the mother’s damages, as they do that of the husband and father, by what has

come to be the maximum recovery exercise in this circuit. Departing from the rule of deference to

jury verdicts, the court lists the awards by different juries and judges, f o r different parties under

different circumstances, adding a percentage for the sake of reasonableness, and thereby fixes the

maximum recovery allowable in the case on appeal. This practice has been gent ly described as a

quagmire. 11 By using a Texas court of appeals decision and a district court opinion, my colleagues

decide that $30,000 is the maximum allowed for the pain and anguish experienced by Becky Vogler.

I dissent.