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United States Court of Appeals,
Fifth Circuit.
No. 93-7706.
Tony C. EILAND and Darlene Eiland, Plaintiffs-Appellees-Cross-
Appellants,
v.
WESTINGHOUSE ELECTRIC CORPORATION, Defendant-Appellant-Cross-
Appellee.
July 14, 1995.
Appeals from the United States District Court for the Northern
District of Mississippi.
Before REAVLEY, DUHÉ, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
This product liability action is before us on cross appeals
attacking the jury's verdict for Plaintiffs on liability and
compensatory damages, as well as the trial court's directed verdict
for defendants on Plaintiffs' claims for failure to warn and
punitive damages. We affirm the verdict on liability issues, and
vacate the damage award, allowing Plaintiffs to accept either
remittitur or a new trial on damages.
FACTS
On May 19, 1989, Plaintiff-Appellant, Tony Eiland (Eiland) was
injured when an explosion occurred in a high power circuit breaker.
Eiland was employed as a lineman for Starkville Electric Department
(Starkville Electric), a distributor of electricity in Starkville,
Mississippi. Starkville Electric operated a substation which
utilized high power circuit breakers, including the one at issue
(Breaker 334), a 144GC500 oil circuit breaker manufactured and sold
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by Defendant-Appellee Westinghouse Corporation (Westinghouse) in
1960 to Tennessee Valley Authority (TVA). It was installed at the
Starkville substation which was operated by TVA until Starkville
Electric began operating it in 1983.
During a storm in the early morning of May 19, 1989, a power
outage occurred and Eiland was dispatched to the substation. He
noticed that Breaker 334 was open, and he closed it manually. When
requested by another employee to re-open the breaker, he did so.
An explosion followed immediately, severely burning Eiland's hands,
arms, face, and torso.
Oil circuit breakers are designed to protect other electrical
equipment in a distribution system by interrupting the electrical
current if a short circuit or other fault occurs in the system.
There are three pair of contacts in a large tank filled with oil,
each including a stationary contact and a moving contact. The oil
serves as an insulator to help extinguish arcs that occur inside
the breaker when it trips. When the contacts are closed,
electricity is carried through the internal parts. When a breaker
operates to interrupt electric current, the contacts open or
separate. Each pair of contacts operates within a boxlike
structure known as an interrupter grid which is designed to
extinguish the arc which naturally occurs when the contacts
separate.
At trial, Eiland contended that the arc escaped the
interrupter grid, traveled through the oil to the side of the metal
tank (phase-to-ground arcing), puncturing a small whole in the tank
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and causing the explosion. Breaker 334 was not equipped with an
insulating tank liner, which would have prevented phase-to-ground
arcing. Defendants' theory of the case was that due to lack of
proper maintenance corrosion accumulated on the contacts, causing
arcing between the contacts (phase-to-phase arcing) which resulted
in an explosion. Defendants concede that there was simultaneous
phase-to-ground arcing, but contend that it was not the cause of
the explosion.
Eiland required five weeks of in-patient hospital care and
several additional weeks of out-patient care, which included
painful debridement procedures and various surgeries. He returned
to work part time after eight months, and full time after 21
months. He developed extensive keloid scarring, and remains
approximately 30% to 40% disabled and badly disfigured. Because he
was unable to return to his job as a lineman, Starkville Electric
gave him a job as warehouse foreman, with a slight reduction in pay
and a ten year freeze on his salary.
Eiland's lost earnings prior to trial were $30,081.00 and past
medical expenses were $172,744.00.
PROCEEDINGS BELOW
Eiland and his wife Darlene Eiland filed their product
liability action on April 28, 1992 in Mississippi state court,
asserting two theories of liability: strict liability and
post-sale negligent failure to warn. Westinghouse removed the case
to federal court on the basis of diversity. The district court,
applying Mississippi substantive law, granted a directed verdict
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for Westinghouse on Eiland's post-sale negligent failure to warn
claim and the claim for punitive damages. The liability questions
presented to the jury were (1) whether the circuit breaker was
defective and unreasonably dangerous when it left Westinghouse's
hands because its design did not include an insulating tank liner;
(2) whether Eiland was injured while Breaker 334 was being used in
a manner and for the purpose for which the product was intended;
and (3) whether the alleged defective condition of the product was
the sole cause or contributing cause of Eiland's injury. After a
six day trial, the jury found Westinghouse liable on the defective
design claim, and awarded Eiland $5,000,000 and Darlene Eiland $-0.
LIABILITY
a. Eiland's expert
Bill Adams, (Adams) a licensed electrical engineer, was
offered by Eiland as an expert witness to reconstruct the accident.
Eiland did not offer him as an expert in maintenance or design.
Westinghouse objected, and the trial court ruled that Adams was
qualified to state an opinion on how the accident happened.
Westinghouse contends that Adams was not qualified to testify as an
expert. Further, they contend that he gave opinions concerning
design, an area that was outside his area of expertise.
Expert opinion testimony is admissible if it is helpful to
the jury in understanding the evidence or determining a fact in
issue. FED.R.EVID. 702. The admission or exclusion of expert
testimony is a matter left to the discretion of the trial court,
and that decision will not be disturbed on appeal unless it is
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manifestly erroneous. Smogor v. Enke, 874 F.2d 295, 297 (5th
Cir.1989). See also Phillips Oil Co. v. OKC Corp., 812 F.2d 265,
280 n. 32 (5th Cir.1987) (explaining that the "manifest error"
standard is harmonious with the "abuse of discretion" standard as
applied to this issue in other Fifth Circuit cases).
Adams began his testimony by explaining how Breaker 334
worked. Adams then testified that after studying Breaker 334 and
the materials related to it, he formed an opinion that indentations
or craters on the side of the tank wall were caused by arcing over
many years. He also testified that arcing to the tank wall caused
a hole in the tank which resulted in the explosion that injured
Eiland, and the presence of a tank liner would have prevented arcs
from reaching the tank wall.
The opinions stated by Adams were based on observations of the
tank wall and the internal equipment of the breaker, and are within
the expertise of an engineer with Adams's experience.
Westinghouse's objections, in effect, attacked Adams's credibility.
After reviewing the record, we have concluded that Adams was
qualified to give opinions in the areas covered in his testimony,
and that the opinions were helpful to the jury in understanding the
evidence and determining a fact in issue. Further, a reasonable
jury could have credited Adams's testimony. Therefore, there is no
merit in Westinghouse's contention that the trial court abused its
discretion in admitting Adams's testimony.
b. Post-sale evidence
Westinghouse contends that the district court abused its
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discretion in admitting evidence of post-sale incidents involving
similar breakers and post-sale design changes. Their position is
bottomed on the assertion that the evidence was not admissible
because it was not relevant under Federal Rule of Evidence 401, and
if relevant, its probative value was outweighed by the danger of
unfair prejudice, and therefore inadmissible under Federal Rule of
Evidence 403. Because of his or her involvement in the trial, a
district court judge often has superior knowledge and understanding
of the probative value of evidence. Therefore, we show
considerable deference to the district court's evidentiary rulings,
reviewing them only for abuse of discretion. Johnson v. Ford Motor
Co., 988 F.2d 573, 578 (5th Cir.1993).
Evidence showed that at least ten other 144GC breakers failed
or exploded prior to the accident that injured Eiland. In 1966 a
corrective baffle was installed in Breaker 334, as well as most
other 144GC breakers, to prevent "improper arcing." Westinghouse
characterized the addition of the baffle as a post-sale design
change to correct an unrelated problem, and moved to keep it out of
evidence. Eiland contends that Westinghouse made the addition of
the baffle relevant by arguing that the breaker's arcing problem
was caused by poor maintenance. There were two marks on the
breaker that resulted from arcing before the baffle was added in
1966. The trial court admitted Eiland's evidence which tended to
show that there had been an arcing problem while TVA had the
breaker, and that the arcing problem was therefore not caused by
poor maintenance as Westinghouse argued.
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Next, the district court admitted evidence that other 144GC
breakers had failed. Eiland had to show that the incidents of
failure or explosions were substantially similar to the accident
here in order to establish admissibility under FED.R.EVID. 403,
which requires the trial court to balance probative value against
danger of unfair prejudice. Johnson v. Ford Motor Co., 988 F.2d
573, 579 (5th Cir.1993). After hearing the evidence about other
failed breakers, the trial court ruled that the incidents were not
similar enough to the case on trial to establish post sale
negligence.
The district court initially admitted evidence of the "Puget
Sound Study" in which Westinghouse conducted tests to determine
whether tank liners were required in the 144GC breakers after one
such breaker failed. The study concluded that tank liners
prevented arcing to the tank wall. Westinghouse contends that the
study is irrelevant because the breakers were being used in a
dissimilar application: testing fuses instead of protecting
against short circuits. Eiland contends that evidence of the study
was relevant to refute Westinghouse's contention that in developing
the breakers during the 1960's and 1970's all testing was done
without a tank liner and to prove that phase-to-ground arcing
occurred in a well maintained breaker, albeit in a different
application. The study itself was excluded, but the district court
allowed Eiland to question experts about aspects of the study.
Later in the trial, the district court ruled that evidence of the
study was not admissible, and it was excluded.
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Finally, evidence was admitted concerning the addition of tank
liners to 144GC breaker design. Westinghouse changed the design of
these breakers by adding tank liners in May of 1960. However, the
new breakers containing liners were not marketed until early 1961.
The breaker involved in this case was placed in the stream of
commerce in October of 1960, after the design change.
This case involved complex scientific evidence. The evidence
concerning the addition of baffles, the causes for other failed
breakers, and the effect of tank-liners was relevant to the
question of both the results of the phase-to-ground arcing
phenomenon inside 144GC breakers and whether that phenomenon was a
cause, in fact, of the explosion in this case. Equally relevant
was Westinghouse testimony attributing the cause to poor
maintenance and corroded contacts. The district court did not
abuse its discretion in admitting the evidence either under Rule
401 or Rule 403.
c. Defect and Causation
Westinghouse contends that there was not sufficient evidence
that a design defect caused Eiland's injury to warrant submitting
the case to the jury. Eiland introduced competent evidence that,
if believed, would support the liability finding against
Westinghouse: phase-to-ground arcing caused the explosion, and an
insulating tank liner would have prevented such arcing. Under
Mississippi law, the jury had to find that the defect, lack of a
tank liner, was a contributing cause of the injury. Ford Motor Co.
v. Matthews, 291 So.2d 169, 176 (Miss.1974) (citing RESTATEMENT
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(SECOND) OF TORTS § 402A (1965)). There was ample evidence to support
the jury's liability determination.
In the alternative, Westinghouse argues that to the extent
that Eiland's proof of defect had any probative value, it was
substantially outweighed by proof that there was no defect.
Westinghouse relies on the assertion that their experts were better
qualified than Eiland's expert, and their theory of the case more
plausible. However, the jury could have decided that any or all of
Westinghouse's evidence lacked credibility, including the expert
testimony. This argument has no merit.
DAMAGES
a. Future Medical Damages
Westinghouse contends that there was no competent evidence to
support an award of future medical damages. Under Mississippi law,
the general rule is that where it is established that future
consequences from an injury to a person will ensue, recovery
therefor may be had, but such future consequences must be
established in terms of reasonable probabilities. Flight Line,
Inc. v. Tanksley, 608 So.2d 1149 (Miss.1992); Entex, Inc. v.
Rasberry, 355 So.2d 1102, 1104 (Miss.1978). Eiland has developed
extensive keloid scarring over the burned portions of his body. He
had surgery to relieve contractures in his wrist, fingers and
thumbs prior to trial, and will, in all reasonable probability,
require additional surgical relief from contractures as the scars
age. Dr. Love, Eiland's treating physician, testified that a
procedure known as skin culturing was available to correct some of
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the keloid scarring, but there were some drawbacks in Eiland's case
that would have to be considered.
The estimates for future medical expenses relating to skin
culturing ranged from $100,000--$500,000, depending on a number of
factors, including the extent to which Eiland subjects himself to
the procedure, its success and the problems encountered in its
application to Eiland. The evidence also included information
about more traditional surgery that Eiland faces in the future.
Such estimates of future medical expenses, if accompanied by the
range of variables applicable in a given case, permit the jury to
evaluate future medical needs and to make findings based on
reasonable probability in accordance with the jury instructions.
The evidence established the reasonable probability that Eiland
will require future surgical treatment, and created a fact
question, properly circumscribed by specifics, concerning the
dollar amount of future medical expenses appropriate for resolution
by the jury.
b. Future Lost Earnings
Eiland offered evidence of future lost earning capacity, but
neither Eiland or Westinghouse offered evidence of work life
expectancy or of a discount rate. At the charge conference, the
parties and court discussed how to instruct the jury on reducing
future lost earnings to present value. Eiland submitted, but
withdrew, a request for instructions requiring the jury to reduce
any award of future damage to present value. Westinghouse took the
position that it was Eiland's burden to put on proof to support
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reduction to present value, and it is not the defendant's burden to
fill in the holes in a plaintiff's case. However, Westinghouse did
not object to the fact that the charge did not include an
instruction on reducing future lost earnings to present value.
They argue on appeal that because Eiland failed to present evidence
to support an instruction on reduction to present value, it was
error to allow future lost earnings to go to the jury at all.
Eiland responds that Westinghouse's failure to put on evidence or
request a jury instruction on the issue is fatal to their claim
here.
Under Mississippi law, an instruction on present value
reduction of lost earnings is proper on request of the defendant if
there is evidence to support it, but is waived without proper
request. Young v. Robinson, 538 So.2d 781 (Miss.1989).
Westinghouse asks us to hold that failure to request the
instruction in this case did not amount to waiver because
Westinghouse was of the opinion that there was no evidence to guide
the jury in deciding the appropriate amount of reduction. There is
no Mississippi case that supports that position.
There was sufficient evidence for the jury to accurately
calculate future work life expectancy and future lost wages.
Westinghouse waived any error in the damage instructions by failing
to object to the instructions or request a specific instruction on
reduction of future damages to present value.
c. Remittitur
Of the $5 million in compensatory damages awarded to Eiland,
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approximately $3.6 is noneconomic loss, including pain and
suffering, disfigurement, and impairment not accounted for in lost
wages. Westinghouse made a post-trial motion for new trial or for
remittitur, which the district court denied.
Mississippi law provides that a court may grant a remittitur
if it finds that the damages are excessive "for the reason that the
jury or trier of the facts was influenced by bias, prejudice, or
passion, or that the damages awarded were contrary to the
overwhelming weight of credible evidence. If such ... remittitur
be not accepted then the court may direct a new trial on damages
only." MISS.CODE ANN. § 11-1-55 (1972). Likewise, this circuit's
case law provides for remittitur if the award is excessive, and new
trial on damages alone if the plaintiff declines the remitted
award. Westbrook v. General Tire and Rubber Co., 754 F.2d 1233,
1242 (5th Cir.1985); Caldarera v. Eastern Airlines, Inc., 705 F.2d
778, 786 (5th Cir.1983).
There is a strong presumption in favor of affirming a jury
award of damages. The damage award may be overturned only upon a
clear showing of excessiveness or upon a showing that the jury was
influenced by passion or prejudice. Westbrook v. General Tire and
Rubber Co., 754 F.2d 1233, 1241 (5th Cir.1985). The decision to
grant or deny a motion for new trial or remittitur rests in the
sound discretion of the trial judge; that exercise of discretion
can be set aside only upon a clear showing of abuse. Id. However,
when this court is left with the perception that the verdict is
clearly excessive, deference must be abandoned.
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A verdict is excessive if it is "contrary to right reason" or
"entirely disproportionate to the injury sustained." Caldarera v.
Eastern Airlines, Inc., 705 F.2d 778, 784 (5th Cir.1983). While
pain and suffering is not easily susceptible to monetary
quantification, and the jury has broad leeway, "the sky is simply
not the limit for jury verdicts, even those that have been once
reviewed." Simeon v. T. Smith & Son, Inc., 852 F.2d 1421, 1427
(5th Cir.1988). Eiland no doubt experienced intense pain during
his initial treatment, and was left with a lifetime of
disfigurement and some degree of disability. However, he was able
to return to work part time within a few months, and full time by
the end of two years. After a review of the record, we have
concluded that the $5 million verdict was excessive and the
district court abused its discretion in denying Westinghouse's
motion for remittitur.
Our power to grant a remittitur is the same as the district
court's. We determine the size of the remittitur in accordance
with this circuit's "maximum recovery rule" by reducing the verdict
to the maximum amount the jury could properly have awarded. Dixon
v. International Harvester Co., 754 F.2d 573, 590 (5th Cir.1985).
Of course, our reassessment of damages cannot be supported entirely
by rational analysis, but involves an inherently subjective
component. Id. In our view, $3 million is the maximum the jury
could properly have awarded in this case.
CROSS APPEAL
The Eilands cross-appealed, contending that in the event
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Westinghouse should be granted a new trial on any issue, the new
trial should include evidence excluded in the first trial, and
reconsideration of Darlene's Eiland's claim for damages. Because
of our disposition of the remainder of this appeal, it is
unnecessary to address the Eilands' claims. If Eiland chooses not
to accept the remittitur, and elects a new trial, that trial will
be limited to the question of the appropriate amount of Eiland's
compensatory damages. Darlene Eiland has not raised any issue that
would merit disturbing the jury's verdict of awarding $-0- damages
on her claim.
CONCLUSION
The verdict of the jury and the judgment of the district court
on the issue of liability is AFFIRMED. We VACATE the jury's damage
award of $5 million. We offer Eiland a remittitur of the jury
award to $3 million or a new trial on compensatory damages alone.

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