Remittitur Granted in Marshall Product Liability Case

Frazier v. Honeywell Intern., Inc., --- F.Supp.2d ----, 2007 WL 2908476(E.D.Tex. Oct 03, 2007) (NO. 2-05CV548)
Judge: Leonard Davis
Holding: Defendant's Motion for Judgment Notwithstanding the Verdict, or Alternatively Motion for New Trial DENIED; Motion for Remittitur GRANTED
This wrongful death crashworthiness case arose out of the death of eighteen year old Lauren Frazier. On August 18, 2004, Carol Wayne Frazier and his wife Tonya R. Frazier were preparing for Lauren Frazier, the youngest of their three daughters, to start college at Baylor University. The Fraziers were planning to take Lauren to Waco the next day, where her sister, a recent Baylor graduate waited to show her around campus. After Lauren, her mother and father, and a friend, Brady Ross, finished packing the car, Lauren's father, Carol, suggested the family go for ice cream-one of their favorite things to do together-one last time before Lauren left for college.
On the way home from getting ice cream, another car coming from the opposite direction turned left into the Fraziers' lane colliding with the Tahoe. This car was driven by Natalie White.  During the dynamics of the accident, Lauren Frazier was ejected from the Tahoe, while her parents and Brady Ross were not ejected. Lauren Frazier died as a result of her injuries, while her father and Brady Ross suffered only minor injuries, and her mother more serious, but not life threatening injuries.
While acknowledging that Ms. White was 100 percent the cause of the “accident,” the Fraziers alleged that Lauren's injuries from the ejection caused her death and that her ejection was due to the defective design of the Tahoe's JDC seatbelt, which had been designed, manufactured and sold by Honeywell. The Fraziers alleged Lauren had been wearing her seatbelt at the time of the accident, but the seatbelt's defective design permitted it to spontaneously unlatch during the dynamics of the accident, allowing Lauren to be ejected from the Tahoe and killed. Honeywell alleged that its seatbelt design was not defective, but that Lauren Frazier was not wearing her seat belt at the time of the accident. While the design of the seatbelt was certainly an issue, the central contested issue at trial was whether or not Lauren was wearing her seatbelt at the time of the accident.
After a four day jury trial in February 2006, the jury returned its verdict finding that Lauren had been wearing her seatbelt at the time of the accident and that the seatbelt had been defectively designed by Honeywell. The jury found that neither Natalie White nor Brady Ross (the driver of the car Lauren was in) proximately caused Lauren's injuries, but that Honeywell was 95% responsible for her fatal injuries, and GM, the Tahoe's manufacturer, 5% responsible. The jury awarded Lauren's parents, Carol and Tonya Frazier, $4,000,000 each for past loss of companionship and mental anguish and $8,000,000 each for future loss of companionship and mental anguish, for a total damage award of $24,000,000.  Honeywell subsequently filed a motion for judgment not withstanding the verdict (judgment as a matter of law in federal court), or in the alternative for a new trial, and remittitur.
JMOL
On the JMOL motion, Judge Davis noted that Honeyweel asserted several grounds in its Rule 50(b) postjudgment motion that it did not raise in its 50(a) prejudgment motion.  As the law requires all arguments to be raised in the original motion, Honeywell waived its claims regarding (1) the rebuttable presumption of Texas Civil Practice and Remedies Code section 82.008(a), (2) the component supplier defense under Texas law, and (3) the length of the mounting stalk argument.  It preserved arguments regarding three claims, however.
On the first, causation, Judge Davis noted that the testimony of three separate expert witnesses went before the jury regarding producing cause, and they all reached the same conclusion: if the seatbelt had remained latched, Lauren Frazier would not have died. Additionally, the physical evidence of the injuries and accident wreckage were all before the jury. Accordingly, the facts and inferences on this issue pointed in favor of the Fraziers, and a rational jury could have reached the verdict that was reached in this case.
On the second issue, Honeywell argued that the Fraziers failed to establish the magnitude of risk allegedly associated with the JDC buckle or any of their proposed alternative designs, failed to demonstrate that proposed alternative designs were safer than the JDC buckle, and failed to produce evidence regarding the feasibility of the alternative designs.  Judge Davis disagreed.  "The Fraziers must demonstrate that there was a safer alternative design that either would have prevented or significantly reduced the risk of injury. See Tex. Civ. Prac. & Rem.Code § 82.005. Regarding the risk analysis, Honeywell contends this means the Fraziers should have produced specific empirical data demonstrating that the G forces necessary to cause inertial release of the seat belt were present in this case. This is perhaps an advantageous jury argument, but it is simply not what the law requires. The Fraziers were required to establish (1) that there was a safer alternative design (meaning a design that would have prevented or significantly reduced the risk of injury that was economically and technically feasible) and (2) that the defect was the producing cause of the injury. Tex. Civ. Prac. & Rem.Code § 82.005."  Judge Davis detailed the evidence adduced at trial, and concluded that the Fraziers produced sufficient evidence for a jury to find there was a safer alternative design and the defect was a producing cause of the fatal injury to Lauren Frazier.
Finally, Honeywell argued that it could have no liability because it offered a safer buckle to GM for use in its vehicles and GM chose the buckle at issue instead. Honeywell contended that as a sophisticated purchaser, GM-not Honeywell as the supplier-had the duty to exercise reasonable care in choosing the buckle. Judge Davis noted that Honeywell argued this to the jury, and through the apportionment of liability question, the jury considered GM's responsibility for Lauren Frazier's injuries and found GM five percent responsible. The Fraziers put on sufficient evidence for a reasonable jury to find for the Fraziers on the issues raised in this motion, Judge Davis concluded.
Motion for New Trial
Honeywell asserted the following grounds for its motion for new trial: (1) the Fraziers' expert testimony should have been stricken under Daubert, (2) the Court erred in admitting “crash and sled test videos” without proper predicate, (3) the Court's instructions to the jury regarding proportionate responsibility and allocation of fault were erroneous, (4) the Court improperly excluded evidence of Natalie White's intoxication, (5) the jury's verdict that Natalie White was not at fault was contrary to the Fraziers' stipulation that she caused the accident, (5) the Court limited the parties' trial time to nine hours, which violated Honeywell's due process rights, and (6) the Fraziers' counsel made an improper jury argument.
On the first two points, Judge Davis noted that Honeywell never filed a Daubert motion, thus waiving any complaints as to the admissibility of the Plaintiff's expert.  (Ed. note - if the sixty or so products cases I've worked on I have never seen a plaintiff's expert not challenged under Daubert.  Why can't I get cases like this?)  On the charge point, Judge Davis noted that he used the Texas Pattern Jury Charges on the point at issue.  On the intoxication and White at fault issues, Judge Davis noted that the parties stipulated that White was 100% at fault for the accident, but that Honeywell never argued to the jury that it should apportion part of the responsibility for the plaintiff's injuries to her "so it is not surprising that the jury assigned none".  Again, that she caused the accident was stipulated - the apportionment question asked if her negligence caused the injuries, and the the jury found that they did not - for the most part Honeywell's seat belt design did.
Honeywell next argued that the Court's limitation of trial time to nine hours per side for presentation of evidence violated its due process and seventh amendment rights.  "However," Judge Davis noted,  "Honeywell did not object to the Court's proposed trial time limits as to presentation of evidence, nor did it request an extension or more time during trial. In fact, Honeywell did not use its entire nine-hour allotment for presentation of evidence.  The Court has an inherent right to place reasonable limitations on the time allotted for trial. Because Honeywell failed to object and request more time, it has waived this argument. Further, Honeywell has made no showing of how it was prejudiced by the time limits, especially since it did not exhaust the time it was given." (internal cite omitted, emphasis added).  Note: readers, are you seeing a pattern here?
Finally, Honeywell contended that the Fraziers' counsel improperly argued the jury should “go kick Honeywell's butt” in their rebuttal closing argument. But, echoing a familiar refrain, Judge Davis noted that .. (everyone see it coming?) "Honeywell failed to object to this argument during trial."  Judge Davis found that the statement was not so egregious as to rise to the level of plain error requiring reversal (the standard when you don't object at trial).   "If Honeywell felt prejudiced by the Fraziers' closing argument, it should have objected during trial so the Court could have had the opportunity to order the argument stricken and correct any potential error through an additional jury instruction. Honeywell has failed to show that a new trial is necessary to avoid a miscarriage of justice under the plain error standard."
Remittitur
No reported case was wholly similar to the facts of this case, thus the "maximum recovery rule" was not mandated here, Judge Davis concluded. However, due to the size of the verdict in this case he was of the opinion that a remittitur analysis is appropriate anyway. "A review of cases with the most similar injuries in the relevant jurisdiction demonstrates that jury verdicts in Texas vary greatly and are fact intensive. The three most similar cases, Vogler, Souza, and Logan, would yield verdicts of $4.5 million, $18 million, and $7.5 million respectively."  He went on write:

In ordering a remittitur, the Court does not in any manner minimize or lessen the personal loss the Fraziers have suffered as a result of the loss of their daughter. The Court heard the compelling testimony of Carol Frazier: what he and his wife went through at the time of the accident; the kind of daughter Lauren had been; her exceptional academic and athletic record, her work ethic, her unique personality; the unfortunate timing of her death, the night before she was leaving for college at Baylor University; instead of moving Lauren to Waco, having to call Baylor to let them know their youngest daughter would not be attending classes in the fall; instead of helping Lauren unpack her things at college, having to shop for a burial dress for Lauren; instead of receiving an exuberant phone call about Lauren's first day of college, they had to bury her; the continuing effect it has had on their family; and all of the future events in Lauren's life that they had expected to see, but will not be able to see.
Carol Frazier's testimony about his daughter's death and the impact it has had on their family, was as compelling and moving as any this judge has heard in over 30 years as a civil trial attorney and judge. During his testimony many female jurors were in tears and several male jurors seemingly could not bring themselves to look at him. Nevertheless, it is this Court's duty order a remittitur when it finds a verdict to be excessive, and this Court finds this verdict in the amount of $24 million to be excessive.

Accordingly, Judge Davis concluded that a remittitur amount near the middle of the three verdicts in the relevant jurisdiction with the most similar injuries was appropriate in this case, and offered the Fraziers a remittitur in the total amount of $9.75 million dollars ($4,875,000 each for past and future loss of companionship and mental anguish) in lieu of a new trial.  If the Fraziers do not accept the remittitur within 30 days, a new trial on damages is ordered.  (Judge Davis also noted that Honeywell's counsel agreed that under Vogler $4 million poer parent was acceptable in this case).