Case: 12-14667   Date Filed: 03/20/2013   Page: 1 of 22

                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 12-14667
                       ________________________

                D.C. Docket No. 6:08-cv-00009-WTM-GRS



MEGAN SANDS,

                                                            Plaintiff - Appellee
                                                              Cross Appellant,

                                  versus

KAWASAKI MOTORS CORP. U.S.A.,
KAWASAKI HEAVY INDUSTRIES, LTD.,

                                                       Defendants - Appellants
                                                             Cross Appellees.

                       ________________________

               Appeals from the United States District Court
                   for the Southern District of Georgia
                      ________________________

                             (March 20, 2013)

Before CARNES, HULL, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Megan Sands brought this products liability action under maritime law after

she was seriously injured when falling backwards off a Kawasaki jet ski. A jury

returned a verdict in favor of Sands on her design defect claim and awarded her $3

million. The district court ultimately entered judgment in favor of Sands for $1.5

million because the jury found that she was 50% responsible for her injuries.

Kawasaki then appealed, and Sands cross-appealed. After careful review and the

benefit of oral argument, we affirm as to both the appeal and the cross-appeal.

                                          I.

      The accident giving rise to this appeal occurred in 2006, and it involved a

Kawasaki 2003 Ultra 150 Jet Ski that was being operated by Sands’ friend, Lauren

Pinder, in navigable waters off the Bahamas. At the time of the accident, Sands

was a 21-year-old college student. It is undisputed that right before the accident

Pinder asked Sands, “Are you ready?,” and Sands said “yes.” Pinder then took off

“at some unknown high rate of acceleration.” Sands was not holding on when

Pinder took off, nor was she expecting such a quick takeoff. When Sands fell

backwards, the water thrust from the nozzle in the back of the jet ski tore through

her vaginal and anal cavities, causing catastrophic injuries. She had to have 19

separate medical procedures and surgeries, and will likely have to wear a

colostomy bag and self-catheterize for the rest of her life, absent a medical

breakthrough.


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      In 2007 Sands filed a lawsuit against Kawasaki in the Southern District of

Florida, asserting claims for strict liability and negligent design defect and strict

liability and negligent failure to warn. The parties eventually agreed that the case

should be transferred to the Southern District of Georgia, Statesboro Division

because Sands was attending college in Statesboro and several of her medical care

providers were there. The parties filed a joint motion to transfer the case, and it

was granted.

      After the case was transferred to the Southern District of Georgia, Sands

filed the reports of her expert witnesses including Michael Burleson, an engineer

who would testify about the design defect issue. Burleson holds a patent for a

rotatable seat back that can be affixed to the back of a jet ski. According to

Burleson, when rotated to the upright position, his seat back design would prevent

passengers from falling backwards off a jet ski. Burleson was prepared to testify at

trial that his rotatable seat back was a reasonable alternative design, and because of

Kawasaki’s failure to adopt that design, its jet ski was not reasonably safe.

Kawasaki filed a motion in limine to exclude Burleson’s testimony, arguing that

his opinion was unreliable because he had not done enough testing on his proposed

seat back design. The district court denied that motion in part, finding that




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Burleson had conducted enough testing on the seat back to make his opinion

reliable.1

       In June 2010 Sands filed a motion to set a pretrial conference, which

Kawasaki did not object to. By January 2011 that motion was still pending, so

Sands filed a “motion for setting case for trial.” In that motion, Sands stated that

she wished to have her case tried as quickly as possible, and to that end “expressly

agree[d] to have her case tried on all issues in Savannah, Georgia,” and “expressly

waive[d] her right to trial by jury to allow the matter to proceed before this Court

sitting without a jury.” Kawasaki responded that it did “not stipulate to a non-jury

trial,” but in that response it did not object to having the trial in Savannah. At the

pretrial conference that followed, the judge indicated that the case would be tried

in Savannah, and at that time Kawasaki stated that it had not agreed to have the

trial in Savannah. The judge responded that “the case can be best tried in

Savannah,” but added, “If you want me to bring in a jury from Statesboro, I’ll

bring in a jury from Statesboro . . . .” Kawasaki never indicated that it wanted a

jury from Statesboro, so the case was set for trial in Savannah, with a jury to be

drawn from the Savannah Division.




       1
           The court did grant Kawasaki’s motion to exclude Burleson’s testimony about other
“reasonable alternative designs,” such as an engine cut-off switch and fixed handles. That ruling
is not at issue on appeal.
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      Kawasaki filed a pre-trial brief and, even though Lauren Pinder, the operator

of the jet ski, had never been a party to this case, Kawasaki argued that the verdict

form should include Pinder’s name and should allocate to her an appropriate

portion of the fault for the accident. The court denied Kawasaki’s request,

concluding that there was no authority for including on the verdict form the name

of a person that the plaintiff had never sued. The court also noted that Kawasaki

did not raise its argument until after the close of discovery, and it would be unfair

to include Pinder’s name on the verdict form when Sands had not been given the

opportunity to thoroughly investigate Pinder’s fault in the accident.

      The case was tried before a jury in Savannah from August 1 to August 9,

2011. At that trial, Sands’ design expert Michael Burleson was permitted to testify

about his patented rotatable seat back, which he believed was a reasonable

alternative design for the jet ski in this case. Kawasaki presented its own design

expert, Robert Taylor, who testified that the jet ski would not be better off with

Burleson’s seat back because of the additional hazards created by it.

      The jury returned a verdict in favor of Sands on the design defect claim and

in favor of Kawasaki on the failure to warn claim. The jury awarded Sands $3

million for past and future medical expenses, but nothing for pain and suffering.

Because the jury found that Sands was 50% responsible for her damages, the

district court entered judgment in favor of Sands for $1.5 million.


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       After the verdict, Kawasaki filed a renewed motion for judgment as a matter

of law under Federal Rule of Civil Procedure 50, arguing that Sands failed to

establish any reasonable alternative design because Burleson’s testimony should

have been excluded as unreliable under Daubert. The district court denied that

motion, concluding that Burleson conducted enough testing on his seat back to

make his expert opinion reliable.

       Kawasaki also filed a motion for a new trial, citing ten separate grounds. Of

importance to this appeal, Kawasaki contended that a new trial was warranted

because the district court abused its discretion in admitting a photo of a 2010

Kawasaki jet ski with a sculpted seat back; in allowing Sands’ attorney to state in

closing argument that the 2010 sculpted seat “fixed” the problem of passengers

falling off the back; in transferring the case to Savannah for trial; in prohibiting

evidence of Sands’ medical insurance after she opened the door to that issue; and

in refusing to include Lauren Pinder’s name on the verdict form so that the jury

could assess her percentage of fault. Kawasaki also asked the court to alter or

amend the judgment to conform to the evidence of special damages under Federal

Rule of Civil Procedure 59(e). The court denied Kawasaki’s motion for a new trial

in its entirety.

       Sands filed her own motion for a new trial on the issue of damages only,

contending that the verdict was inadequate as a matter of law because the jury had


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found liability and awarded $3 million in past and future medical expenses, but had

awarded nothing for pain and suffering. The district court denied that motion,

concluding that Sands’ argument was foreclosed by this Court’s decision in

Coralluzzo v. Education Management Corp., 

, 186 (11th Cir. 1996).

      Kawasaki appealed, contending that the district court erred or abused its

discretion at various points during and after the trial, and Sands cross-appealed,

contending that the district court abused its discretion in refusing to grant a new

trial on the issue of damages only.

                                          II.

      Kawasaki first contends that the district court failed in its gatekeeping

function under Daubert v. Merrell Dow Pharmaceuticals, Inc., 

, 

(1993), when it allowed Sands’ expert, Michael Burleson, to present his

seat back as a reasonable alternative design. Federal Rule of Evidence 702, which

controls the admission of expert testimony, provides:

      A witness who is qualified as an expert by knowledge, skill,
      experience, training, or education may testify in the form of an
      opinion or otherwise if: (a) the expert’s scientific, technical, or other
      specialized knowledge will help the trier of fact to understand the
      evidence or to determine a fact in issue; (b) the testimony is based on
      sufficient facts or data; (c) the testimony is the product of reliable
      principles and methods; and (d) the expert has reliably applied the
      principles and methods to the facts of the case.

Fed. R. Evid. 702. As the Supreme Court has made clear, that rule “compels the

district courts to perform the critical ‘gatekeeping’ function concerning the
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admissibility” of expert scientific and technical evidence. United States v. Frazier,

, 1260 (11th Cir. 2004) (en banc). The proponent of expert

testimony always bears the burden of proving its admissibility. 

admissibility of expert testimony under Rule 702, district

courts must consider, among other things, whether “the methodology by which the

expert reaches his conclusions is sufficiently reliable as determined by the sort of

inquiry mandated in Daubert . . . .” 

the factors used to evaluate the

reliability of an expert opinion is whether it can be and has been tested. 

courts enjoy “considerable leeway” in making reliability

determinations, and “we must affirm unless we find that the district court has made

a clear error of judgment, or has applied the wrong legal standard.” 

argues that Burleson’s expert testimony should have been

excluded as unreliable because he did not do enough testing on his proposed

alternative design. In denying Kawasaki’s Daubert motion, the district court found

that Burleson’s “opinions were adequately tested to meet the reliability prong of

Rule 702.” In support of that finding, the court referred to Burleson’s report,

which stated that he had tested his seat back design on the Kawasaki jet ski at issue

in this case and on other personal watercraft, and that his testing consisted of

“acceleration and operational testing with a passenger in place.” The court also

referred to Burleson’s deposition, where he testified that he had tested his seat back


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“in a real world situation” for “several hours over a period of time.” Based on his

in-water testing of the seat back and the principles of physics and mathematics,

Burleson concluded in his report that his seat back could provide “both comfort

and safety without sacrificing utility of the product or creating dangerous hazards.”

      Kawasaki argues that Burleson’s testing wasn’t sufficient because he did not

do “any testing to determine whether his seatback would add new safety hazards.”

It is difficult to prove a negative, but based on his testing of the seat back, Burleson

concluded that it would prevent people from falling off the back of the jet ski

without “creating dangerous hazards.” He was not required to test his seat back

under every conceivable condition in order to rule out the possibility of additional

safety hazards. To the extent that Kawasaki believed that Burleson’s proposed

design created new hazards of a greater magnitude than those prevented, it was

free to — and did — cross-examine Burleson about that. Kawasaki was also free

to — and did — present its own expert to testify that Burleson’s design did not

increase the overall safety of the jet ski because it created new safety hazards. We

cannot say that the district court abused its discretion by denying Kawasaki’s

motion to exclude Burleson’s testimony on the grounds that it was unreliable.

      Kawasaki also contends that the district court “exacerbated its error” by

precluding it from introducing Exhibit 72, which was created by its design expert,




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Robert Taylor, using Mathematical Dynamic Modeling (MADYMO). 2 Exhibit 72

would have depicted some of the foreseeable consequences that might be caused

by Burleson’s seat back design, and Kawasaki tried to introduce it during Taylor’s

testimony. In refusing to admit the exhibit, the court reasoned that “because the

witness did not perform any tests on the Burleson seat back, and the exhibit shows

an operator and not a passenger . . . the probative value in assisting the jury to

evaluate the expert’s opinion is substantially outweighed by the exhibit’s potential

for prejudice . . . .”

       Kawasaki argues that Exhibit 72 was “highly relevant” because it showed

how Burleson’s design would have introduced “other dangers of equal or greater

magnitude.” Kawasaki also argues that it does not matter that the modeling

showed an operator and not a passenger because it was not intended to be an

accident recreation. Even if Kawasaki is correct, it still has not shown how it

suffered substantial prejudice from the district court’s refusal to admit Exhibit 72.

See Hall v. United Ins. Co. of Am., 

, 1259 (11th Cir. 2004) (“We

review evidentiary rulings made by the district court for abuse of discretion and

will reverse the district court’s decision only in cases where substantial prejudice

exists.”).


       2
         MADYMO is scientific mathematical model that is used to show the effect of force on
the human body during watercraft motions or ejections. In simpler terms, it is “an analytical
crash test dummy.”
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      Kawasaki’s expert, Taylor, indicated in his testimony that he used

MADYMO “to evaluate some potential effects of Mr. Burleson’s proposed seat

back.” He was also asked whether, based on his testing, he thought Burleson’s seat

back was a “safer alternative design,” and he responded that the jet ski “would not

be better off — that it would not be a better design to have that kind of seat back

on the [jet ski].” Taylor was then asked to “describe for the jury” his “reasons for

coming to that conclusion,” and he answered as follows:

      Some of the reasons are associated with what I would call the
      unintended ill consequences of design change, in that this design
      proposed by Mr. Burleson, one, I don’t believe it will work. Two, the
      aspect of riding a [jet ski] is very aggressive, and it’s a rider-active
      vehicle, and if you hold on you can stay on the craft. But we know
      that from other instances—people doing wave jumping—there are
      times when people are posting up and down to absorb wave jumping,
      and in those instances I’ve evaluated loads on the spine associated
      with contact with seat and structures on the [jet ski]. And to the
      extent that you would have another fixed structure in this region
      where people could strike it while doing other aggressive activities,
      strike it in the neck, the head, the spine, I think those will be injury
      producing.

According to Taylor, Exhibit 72 would have “depicted some of those . . .

foreseeable consequences” that he had described. So according to Taylor’s

testimony, Exhibit 72 was merely an illustration of the types of consequences he

described to the jury. Because Exhibit 72 was just an illustration of consequences

that the jury had already heard about, Kawasaki suffered no substantial prejudice

from the district court’s refusal to admit it.


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      Kawasaki next contends that the district court abused its discretion in

allowing Sands to introduce during its cross-examination of Taylor a photo of a

2010 Kawasaki jet ski with a “sculpted” seat back. Taylor testified on cross-

examination that in 2003 “it was not feasible from an overall engineering design

standpoint” to build a jet ski with a raised seat back such as the one designed by

Burleson. The court then allowed Sands to introduce the photo of the 2010

Kawasaki jet ski with the sculpted seat back for the limited purpose of asking

Taylor “whether or not he still has an opinion that it would not be feasible to build

it . . . .” Taylor’s response was that the sculpted seat in the picture and the

Burleson seat back were “two different things,” because the sculpted seat had a

low height and was not a safety feature, while the Burleson design was a “10- or

12- inch impediment on the back” of the jet ski. Taylor maintained that from an

engineering standpoint Burleson’s “tall seat” would not be feasible to build.

      Kawasaki argues that the photo should not have been admitted because the

sculpted seat on its 2010 jet ski was nothing more than a “comfort feature,” and

that “[n]o one tested it to see if it would have made any difference here.” But even

if Kawasaki is correct, it again has not shown substantial prejudice because Taylor

explained to the jury how the sculpted seat was different from the taller seat back

proposed by Burleson. Taylor also made clear to the jury that the sculpted seat

back was not a remedial measure by stating, “If you’re asking me is this a safety


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benefit to have a sculpted seat, and would it have prevented this particular event,

the answer is no.”

      The photo of the sculpted seat on the 2010 Kawasaki jet ski reappeared later

in the trial during the closing argument of Sands’ attorney. Specifically, Sands’

counsel referred to the sculpted seat by saying that it “fixed” the problem.

According to Kawasaki, that argument was improper because it suggested to the

jury that the new seat design was an admission that the earlier design was

defective.

      “A district court has wide discretion to regulate the scope of argument.”

Goldsmith v. Bagby Elevator Co., 

, 1282 (11th Cir. 2008). “For

reversible error to be found in a closing argument, the challenged argument must

be ‘plainly unwarranted and clearly injurious.’” 

the district court

recognized that the reference to the 2010 seat design was improper, and gave the

following curative instruction to the jury: “In considering the evidence and

making your decision in this case, you should disregard any comments that [Sands’

counsel] made in his closing argument regarding a 2010 Kawasaki personal

watercraft because that argument was improper.”

      “We presume that juries follow the instructions given to them.” United

States v. Lopez, 

, 1237 (11th Cir. 2011). Because the district court

gave a curative instruction, and because we presume the jury followed that


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instruction, the statements made by Sands’ counsel in his closing argument were

not “clearly injurious.” See Lanham v. Whitfield, 

, 972 (11th Cir.

1986) (holding that the district court did not abuse its discretion in denying a

motion for a new trial based on an alleged improper statement in closing argument

because the court had given curative instructions to disregard that statement). 3

       Kawasaki also contends that the district court abused its discretion in

prohibiting it from introducing evidence of Sands’ medical insurance. Kawasaki

asserts that Sands “opened the door” to the issue of insurance through her therapist,

Katie McGrory, who testified that Sands had told her that she felt guilty about

being a financial burden on her parents and that her father had to work more to

cover her medical expenses. She also testified that Sands received counseling at a

discounted rate because she was a student. Kawasaki also points to McGrory’s

testimony on cross-examination, where she was asked whether she thought it

would have been helpful to obtain the records from a professional that Sands had

seen before the accident so that she could decide whether Sands had suffered from

generalized anxiety disorder before the accident. McGrory responded that it might

have been helpful, but she was not in a hurry to give Sands a diagnosis because


       3
          Kawasaki argues that the suggestion that the 2010 sculpted seat back “fixed” the
problem was so damaging that a curative instruction could not fix it. We disagree. Kawasaki
has cited no authority, and we have found none, to suggest that the statement was so damaging
that it could not be corrected with a curative instruction, especially in light of Taylor’s testimony
explaining to the jury that the sculpted seat on the 2010 design was merely a comfort feature and
not a safety feature.
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Sands was paying “out of pocket,” and so she didn’t need to “come up with a code

to give the insurance company.”

      When Kawasaki argued that Sands had opened the door to the issue of

medical insurance, the district court ruled that she had not, reasoning that

McGrory’s response on cross-examination was just an explanation of why she had

not sought to obtain records from another physician and that the reference to

insurance “passed over the heads of this jury and would have no effect on this

case.” As such, the court found that the prejudice of introducing evidence of

insurance coverage would “far outweigh any probative value.” That ruling was not

an abuse of discretion. McGrory did not imply that Sands did not have medical

insurance. Instead, she merely stated — truthfully — that Sands paid out of pocket

for her services, and that Sands had expressed guilt over being a burden to her

family. Jurors are no doubt aware that medical insurance does not cover every

possible expense, and the district court recognized that when it noted that

McGrory’s tangential reference to insurance “would have no effect on this case.”

      Kawasaki further contends that the district court misapplied maritime law by

not including the name of Lauren Pinder, the operator of the jet ski, on the verdict

form so that the jury could assess her percentage of fault for the accident. The

general rule in maritime law is that a plaintiff may sue any defendant “for the full

amount of damages for an indivisible injury that the [defendant’s] negligence was


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a substantial factor in causing, even if the concurrent negligence of others

contributed to the incident.” Edmonds v. Compagnie Generale Transatlantique,

, 260, 

, 2756 (1979). Under that rule, Sands was

permitted to sue Kawasaki for the full amount of her damages, even though

Pinder’s negligence might have contributed to her injuries.

      Kawasaki relies on McDermott, Inc. v. AmClyde, 

, 

(1994) to argue that Pinder’s name nonetheless should have been included on

the verdict form. McDermott “settled decades of debate over the proper method of

apportioning liability between settling and nonsettling tortfeasors in admiralty

cases by holding that the proportionate share approach applies.” Murphy v. Fla.

Keys Elec. Co-op, 

, 1314 (11th Cir. 2003) (quotation marks

omitted). Under that approach, if at least one defendant does not settle with the

plaintiff, the amount of damages and percentage of liability attributable to each

defendant is determined at trial. 

, 114 S.Ct. at

1465–67. However, the Supreme Court made clear in McDermott that the

proportionate share approach applies only when there has been a settlement, and

that McDermott did not abrogate the “well-established principle of joint and

several liability” as stated in Edmonds. 

, 114 S.Ct.

at 1471. Accordingly, the general rule of Edmonds applies in this case, Sands was

permitted to sue Kawasaki for the full amount of her damages, and the court did


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not err in refusing to include Pinder on the verdict form, even though she might

have contributed to Sands’ injuries.

       Kawasaki also contends that the district court abused its discretion in

refusing to further reduce the jury’s $3 million award for past and future medical

expenses. “In general, a remittitur order reducing a jury’s award to the outer limit

of the proof is the appropriate remedy where the jury’s damage award exceeds the

amount established by the evidence.” Goldstein v. Manhattan Indus., Inc., 

, 1448 (11th Cir. 1985); see also Frederick v. Kirby Tankships, Inc., 

, 1284 (11th Cir. 2000) (“The rule in this circuit states that where a jury’s

determination of liability was not the product of undue passion or prejudice, we

can order a remittitur to the maximum award the evidence can support.”). 4

       The parties stipulated that Sands incurred $228,815.09 in past medical

expenses. Sands also presented evidence about her future medical expenses

through the testimony of Rosemary Baltayan, who testified about a “life care plan”

that she had prepared for Sands, which includes “anything that’s necessary from a

medical standpoint” that Sands would need for the rest of her life. The amount of

future medical expenses calculated in the life care plan, reduced to present value,

was $1,211,567.41. Kawasaki argues that the sum of the past medical expenses

       4
          The Seventh Amendment does require that a plaintiff be given the option of a new trial
in lieu of remitting a portion of the jury’s award. Johansen v. Combustion Eng’g, Inc., 

, 1329 (11th Cir. 1999). Because the verdict here does not exceed the amount established
by the evidence, we do not reach that issue.
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and Baltayan’s estimated future medical expenses (about $1.44 million) is the

maximum amount of damages supported by the evidence, and therefore the jury’s

verdict of $3 million is clearly excessive. Kawasaki is wrong.

      First, as the district court noted in denying Kawasaki’s motion to amend the

judgment, “the number presented by the life care planner was simply an estimate,

from which the jury is permitted to draw its own conclusion about [Sands’] future

medical costs. . . . [I]t is unsurprising that the jury might increase the amount for

future medical costs given the quantity and breadth of [Sands’] future needs,

combined with the lifetime nature of her injuries.” In fact, Baltayan testified that

in preparing her estimates for future care, she did not account for potential medical

complications. Specifically, she testified that

      The only thing that’s left out [of the life care plan] is complications,
      which we often write as possibles. I didn’t do that here. Those are
      things that are not factored in by the economists, but you certainly
      need to be aware, she could develop hernias, she may need to have the
      ostomies redone, she may have to go to in-dwelling catheters. She
      may at some point, you know — I doubt she’s going to have the
      artificial sphincter done but, you know, if it becomes more prevalent .
      . . then those are things that would possibly make [the future medical
      expenses] more.

      And there was plenty of other evidence in the record to suggest that Sands

may have complications. Sands’ treating physician, Dr. Timothy Thaller, testified

that in the four years he has treated Sands, she has tested positive 10 times for

potential urinary tract infections. He also testified that she is at a “much higher”


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risk for recurrent urinary tract infections because she has to self-catheterize. He

further testified that because Sands must take daily antibiotics to prevent recurrent

infections, she is at a greater risk for developing strains of bacteria that are drug-

resistant and can only be treated through hospitalization. Dr. Guillermo Davila

also testified that there may be medical advances in the future that could improve

Sands’ otherwise permanent condition. All of that testimony shows that there is a

lot of uncertainty about Sands’ future medical needs, which might require her to

incur more expenses than those included in the life care plan.

       Second, as the district court also noted, “the life care planner’s amount [was]

reduced to present market value. The jury was instructed that they were not bound

by the economist’s opinion as to the present market value of future medical costs,

but may rely upon it as an aid when calculating an award of damages. Therefore,

the jury is permitted to either increase or decrease an award for future damages

based on their informed belief as to the proper present market value.” For all of

those reasons, the district court did not abuse its discretion in refusing to remit the

jury’s damages award because that award was supported by the evidence.5




       5
          Kawasaki also contends that the district court abused its discretion when it decided that
the case should be tried in the Savannah courthouse instead of the one in Statesboro. We
disagree. The local rules for the Southern District of Georgia provide that “[b]y Order of the
Court, any civil action may be transferred for trial to any other place or division within the
district.” S.D. Ga. L.R. 2.3. Moreover, the district judge gave Kawasaki the opportunity to ask
for a jury drawn from the Statesboro division, and it did not do so. There was no reversible error.
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                                               III.

       In her cross-appeal, Sands contends that the district court abused its

discretion by not granting her motion for a new trial on damages only under

Federal Rule of Civil Procedure 59. She asserts that the jury’s award of $0 for pain

and suffering was legally inadequate and against the “manifest weight” of the

evidence. Sands’ argument, however, is foreclosed by our decision in Coralluzzo

v. Education Management Corp., 

(11th Cir. 1996). In Coralluzzo, the

plaintiff sued a marine theme park after he was bitten by one of the park’s animals.

jury, by special verdict, awarded past medical and hospital

expenses of $15,000 and punitive damages of $5,000. 

jury wrote

“0” in the space on the verdict form for the amount of damages for the plaintiff’s

pain and suffering. 

the denial of his motion for a new

trial based on the jury’s failure to award damages for “indisputable” pain and

suffering. 

the ground that the plaintiff failed to object to the

inconsistency of the jury verdict before the jury was discharged. 6 

we reasoned that “[t]his court has repeatedly held that all challenges to
the inconsistency of special verdicts must be raised before the jury is 

.
That statement has been called into question by Mason v. Ford Motor Co., 

, 1274
n.4 (11th Cir. 2002), which recognized that “[s]ome conflict seems to exist on whether the failure
to object to inconsistent special verdicts before the jury is excused constitutes a waiver of the
right to seek a new trial . . . .” Mason noted that some decisions from the former Fifth Circuit
had concluded that it was error to enter judgment on inconsistent answers to special verdict
questions even without a timely motion before the trial court, while other cases such as
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               Case: 12-14667      Date Filed: 03/20/2013       Page: 21 of 22

       Like the plaintiff in Coralluzzo, Sands did not object to the jury verdict as

inconsistent before the jury was excused. Also like the plaintiff in Coralluzzo, she

is arguing that the jury, having found that Kawasaki was liable, could not possibly

have concluded that she was not entitled to damages for pain and suffering. Sands

insists on appeal that she is not challenging the verdict as inconsistent, and that she

instead is arguing that the verdict was against the “manifest weight” of the

evidence. The problem with Sands’ argument is that there was evidence to support

the jury’s decision not to award pain and suffering: Kawasaki presented a great

deal of evidence suggesting that it was not liable for Sands’ injuries at all. If the

jury had credited that evidence over Sands’ evidence, then Sands would not have

been entitled to any damages, including damages for pain and suffering. But the

jury did not credit Kawasaki’s evidence, which is exactly Sands’ point: there was

no way that the jury could have found liability and yet award no damages for pain

and suffering, given the overwhelming evidence of that pain and suffering. All of

which means that Sands is challenging the jury’s verdict as inconsistent, and that

challenge is barred on appeal because she did not object to the verdict before the

jury was excused. See 

.




Coralluzzo seemed to conclude the opposite. 

not matter here because this
case involves a general verdict, and there is no question that the failure to object to
inconsistencies in a general verdict before the jury is excused waives the right to bring that
challenge later. 

    Date Filed: 03/20/2013   Page: 22 of 22

      Sands attempts to distinguish Coralluzzo by arguing that it involved a

special verdict under Federal Rule of Civil Procedure 49(a), while this case

involves a general verdict under Federal Rule of Civil Procedure 49(b). That

distinction does not help Sands because as we have noted, “if the jury rendered

inconsistent general verdicts, failure to object timely waives that inconsistency as a

basis for seeking retrial.” Mason v. Ford Motor Co., 

, 1274 (11th

Cir. 2002). Because Sands did not object to the verdict before the jury was

dismissed, she cannot now challenge that verdict as inconsistent.

      AFFIRMED.




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