Filed: Jun. 15, 1992
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 90-6036 _ JAMES YARBROUGH, Individually and as Next Friend of ROBERT YARBROUGH, a Minor, Plaintiff-Appellee, VERSUS STURM, RUGER & CO., Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Texas _ (June 15, 1992) Before WISDOM, JONES, and SMITH, Circuit Judges. JERRY E. SMITH, Circuit Judge: After a minor was injured by a gun he had stolen, he and his family brought a products liability
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 90-6036 _ JAMES YARBROUGH, Individually and as Next Friend of ROBERT YARBROUGH, a Minor, Plaintiff-Appellee, VERSUS STURM, RUGER & CO., Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Texas _ (June 15, 1992) Before WISDOM, JONES, and SMITH, Circuit Judges. JERRY E. SMITH, Circuit Judge: After a minor was injured by a gun he had stolen, he and his family brought a products liability a..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 90-6036
_______________
JAMES YARBROUGH, Individually and as Next Friend of
ROBERT YARBROUGH, a Minor,
Plaintiff-Appellee,
VERSUS
STURM, RUGER & CO.,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
(June 15, 1992)
Before WISDOM, JONES, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
After a minor was injured by a gun he had stolen, he and his
family brought a products liability action against the gun's
manufacturer, Sturm, Ruger & Co., Inc. ("Sturm, Ruger"), alleging
that the gun was defectively designed. After an initial trial in
which the jury returned an inconsistent verdict and, upon further
consideration, pronounced itself unable to agree on a resolution of
the suit, the district court, over Sturm, Ruger's objections,
accepted the jury's findings as to liability and impaneled a second
jury to determine damages. Sturm, Ruger appeals, arguing that the
first jury verdict represented an impermissible compromise. Sturm,
Ruger also raises some evidentiary and procedural issues. We
vacate and remand for a new trial on all issues.
I.
Robert Yarbrough was thirteen years old when he and fourteen-
year-old Rusty Cowart stole a number of guns and other property
from at least two houses in their neighborhood. One of those guns
was a .44 caliber Sturm, Ruger single action revolver ("the
revolver"). Yarbrough and Cowart carried the firearms around in a
paper bag, apparently playing with them and attempting to sell
them. Although the boys had found the revolver unloaded, they
obtained ammunition and carried it fully loaded, with the hammer
forward over a live cartridge.
A few days after the theft, while Yarbrough and Cowart were,
ironically, walking past the house from which they had stolen the
revolver, after failing to sell the stolen firearms, one boy began
to hand the bag to the other. The bag either dropped or gave way.
The revolver hit the pavement and discharged, wounding Yarbrough in
the leg, which eventually was amputated above the knee.
II.
Yarbrough and his family brought this lawsuit against Sturm,
Ruger on theories of negligence, strict product liability, and
failure to warn; they later reduced their claim to one of product
2
liability, based upon defective design. Sturm, Ruger based its
defense upon the lack of design defects when the gun was manufac-
tured in 1962, the adequacy of the warnings that accompanied the
gun at that time, and Yarbrough's contributory negligence.
The jury returned an initial verdict stating that the revolver
was defectively designed and that the defect caused Yarbrough's
injuries. It found Sturm, Ruger 60% liable and Yarbrough 40%
liable for those injuries.
In response to the special interrogatories, the jury awarded
$50,000 for past medical expenses, $250,000 for future medical
expenses, and $100,000 for past disfigurement, for a total of
$400,000. It entered zero as the award for future disfigurement,
past and future physical impairment, past and future mental
anguish, past and future pain and suffering, and past and future
lost earning capacity.
The district court determined that the inconsistency between
the finding of liability and the various damage awards were
"inconceivable" and "absolutely unbelievable." It denied Sturm,
Ruger's motion for a mistrial and told the jury to reconsider,
instructing the jurors that if they unanimously agreed on liabil-
ity, they must assess damages for the unquestionable injuries. The
court further reminded the jurors that they were to consider the
issues of liability and damages separately. The jury deliberated
for another four hours before informing the court that it was
"unable to agree on a resolution of this lawsuit."
3
In response to the court's efforts, in open court, to
understand the verdict, the jury foreman stated as follows:
On the money that was awarded, everybody has sort of
agreed to that particular figure. But there was argu-
ments on how that figured down the line. I mean, that
was our argument on the liability end and on the negli-
gence, injury and pain . . . . I think we were trying to
come up with a dollar figure that would be reasonable to
get him to an even start in life now with perhaps
something to give him a boost so he can go on with his
life.
Another juror averred that the jury's conflict on the liability
issue had caused it to reach an incomprehensible damage award.
The court then denied Sturm, Ruger's renewed motion for a
mistrial and accepted the verdict on liability but severed the
damage issue and impaneled another jury to determine it. The
second jury awarded damages for each element of Yarbrough's injury,
returning an award of $422,000, only $22,000 greater than the total
the first jury awarded. Sturm, Ruger's motion for a new trial was
denied, and it filed a timely appeal based upon the denial of a
mistrial; the exclusion of evidence about how Yarbrough acquired
the gun; alteration of an evidentiary stipulation; and the district
court's allegedly biased behavior and questioning of witnesses.1
III.
Sturm, Ruger argues that the district court erred in denying
its motions for a mistrial because of the apparent compromise
1
Sturm, Ruger has not asserted, in this case, that the public policy of
Texas forbids the awarding of damages to those who are injured by firearms
they steal. Accordingly, we assume, arguendo, that products liability may be
imposed under such circumstances.
4
verdict. We reverse a district court's ruling on a motion for new
trial only for abuse of discretion. Lucas v. American Mfg. Co.,
630 F.2d 291 (5th Cir. 1980) (citing Silverman v. Traveler Ins.
Co.,
277 F.2d 257 (5th Cir. 1960)).
If the record indicates that a liability verdict stemmed from
a compromise on damages, the complaining party is entitled to a new
trial, for considerations of damages should not taint the initial
question of the defendant's fault. Westbrook v. General Tire &
Rubber Co., 754 F.2d 1233, 1242 (5th Cir. 1985). In determining
whether a jury reached a compromise verdict, we examine the
"totality of circumstances" and consider any indicia of compromise
apparent from the record and other factors that may have caused a
verdict for damages that would be inadequate if the jury actually
found liability. Pagan v. Shoney's, Inc.,
931 F.2d 334, 339 (5th
Cir. 1991).2 After examining the jury verdict and the record of
the case, we believe that the verdict stemmed from an impermissible
compromise.3
2
In Pagan, 931 F.2d at 339, we discussed the factors that courts have
considered in determining whether the jury compromised. In Hatfield v.
Seaboard Air Line R.R.,
396 F.2d 721, 723 (5th Cir. 1968), the factors
included whether the issue of liability was strongly contested, whether the
jury was confused concerning contributory negligence, and whether either party
urged the district court to accept the jury's verdict. The Eleventh Circuit
also has examined whether the jury requested additional instructions or
attempted to qualify its award. See Burger King Corp. v. Mason,
710 F.2d
1480, 1488 (11th Cir. 1983), cert. denied,
465 U.S. 1102 (1984). Perhaps most
relevantly, the Tenth Circuit has held that an award of only nominal damages,
coupled with either a disregard for uncontested and obvious damages or an
award of only out-of-pocket expenses, raises the suspicion of a compromise
verdict. National R.R. Passenger Corp. v. Koch Indus.,
701 F.2d 108, 110
(10th Cir. 1983).
3
The verdict and the record of the trial provide us with sufficient basis
to believe that the verdict was tainted, and thus we need not consider the
statements of the jurors, which evidence is not favored, although here it
gives us even more comfort. See McDonald v. Pless, 238 U.S. 264 (1915).
5
The first, and most important, evidence of a compromise is in
the verdict form itself. It is inconceivable that the jury could
find liability and then award damages for past but not future
disfigurement, for past and future medical expenses but not for
past and future pain and suffering, mental anguish, and lost
earning capacity. Sturm, Ruger did not dispute that Yarbrough was
seriously injured and that his injury would cause him impairment
and disfigurement for the rest of his life. If he was disfigured
in the past, he will be disfigured in the future; his leg will not
grow back.
Further, in contrast to Pagan, where another basis for the
jury's improper award existed, this case suggests no alternative
explanation for the jury's verdict. The fact that the jury awarded
distinct sums for past medical expenses, future medical expenses,
and past disfigurement does not indicate that it intended to make
a general award of damages in the sum of $400,000 or that it merely
misunderstood the purpose of the special interrogatories. Even
more significantly, the jury did not leave the space for an award
of damages for future disfigurement blank but entered zero as the
amount it wished to award.4
Second, although Sturm, Ruger vigorously contested liability,
it hardly challenged Yarbrough's claims of damages during the first
trial. Although not determinative, such a fact indicates that the
jury's ostensible difficulty in finding a satisfactory damages
4
Cf. Pagan, 931 F.2d at 340 (jury's failure to answer interrogatory,
rather than entering "zero" or "none," strengthens argument that jury consid-
ered damages duplicative).
6
award was complicated by continuing disputes over liability. See
Hatfield, 396 F.2d at 723. As the California Supreme Court has
noted, "A refusal to allow for undisputed special damages is
usually convincing evidence that a jury failed to make a decision
on the liability issue." Hamasaki v. Flotho,
248 P.2d 910, 912
(Cal. 1952), quoted in Mutuelle Electrique D'Assurances v.
Hammermills, Inc.,
786 F.2d 840, 843 n.7 (8th Cir. 1986). The fact
that the jury requested the transcript of the deposition testimony
of the revolver's designer, William Ruger, indicates serious
consideration of the liability issue, as Mr. Ruger offered no
insight into the issue of damages.
Third, neither party was satisfied by the initial verdict.
See Hatfield, 396 F.2d at 723. Yarbrough's attorneys requested
that the court add damages to the jury's findings; Sturm, Ruger, of
course, moved for a mistrial.
Fourth, the failure of the first jury to reach an agreement
after four hours of further deliberation, after the district court
instructed it in how to prepare an acceptable verdict form, shows
that the jury must have been having a problem regarding liability.
That it could not prepare such a form suggests that it was
deadlocked by the terms of its initial compromise.
Fifth, Yarbrough's contention, that the fact that the damages
awarded by the second jury were not inconsistent with those awarded
by the first shows that the severance of issues did not prejudice
Sturm, Ruger, misses the point. If the finding of liability by the
first jury was based upon a compromise, then the second jury was
7
allowed to rely upon a tainted finding that had served only as the
tradeoff for the first jury's damages award. See Westbrook, 754
F.2d at 1242. Again, the damages were not vigorously contested at
the first trial; liability was a more disputed issue.
This case may lack the strong examples of improper judicial
behavior or juror confusion that were present in some of the cases
in which we have found impermissible compromises.5 Nevertheless,
the record reveals substantially more facial evidence that the
verdict was compromised, i.e., that the jurors had agreed on an
amount of damages they wanted to award Yarbrough and then reached
their liability finding based upon that.
As an empirical matter, it may be that many juries make such
compromises. Nevertheless, although we do not favor questioning
verdicts, when we are faced by the obvious facial contradictions
between the verdict and the evidence presented, in circumstance
such as those that prevailed here, we cannot agree that the
district court should have retained a liability finding that
apparently was deliberately made to reach a certain amount of
damages, for the parties are entitled to independent findings of
damages and liability. See Gasoline Products Co. v. Champlin
Refining Co., 283 U.S. 494, 500 (1931); Colonial Leasing v.
Logistics Control Int'l,
770 F.2d 479, 481 (5th Cir. 1985).
5
See, e.g., Lucas v. American Mfg. Co., 630 F.2d 291 (5th Cir. 1980)
(jury had been instructed to deliberate for no more than fifteen minutes
because of an approaching hurricane); Hatfield (jury members had exhibited
confusion about contributory negligence, and the jury took two days to reach
its verdict).
8
IV.
Having concluded that the district court abused its discretion
in denying the motion for a new trial, we need not consider the
other issues that Sturm, Ruger raises on appeal. Nevertheless,
because the matter is certain to arise when the case goes to trial
again, we address one of Sturm, Ruger's evidentiary concerns.
Sturm, Ruger contends that the district court abused its
discretion by disallowing evidence that Yarbrough stole the
revolver SQ evidence necessary for a proper factual determination
of causation and comparative negligence. The court excluded such
evidence based upon the balancing test required by Fed. R. Evid.
403. We review such a determination for abuse of discretion. See,
e.g., Wright v. Hartford Accident & Indem. Co., 580 F.2d 809, 810
(5th Cir. 1978).
Sturm, Ruger is correct that evidence of the theft would have
been probative of Yarbrough's negligence and lack of knowledge
about the gun. The court allowed a stipulation that Yarbrough had
possession of the revolver at the time of the accident without the
permission of its owner. The stipulation did not, however, inform
the jury that Yarbrough, through stealing the gun, rather than
perhaps borrowing it from someone in rightful possession, willfully
put himself out of the way of any warnings about the revolver's
dangers or instruction as to its use.
Indeed, through his efforts to hide his wrongful possession,
Yarbrough necessarily avoided instructions or warnings of any
9
type.6 Moreover, because he had stolen the weapon and was engaged
in trying to sell the guns, Yarbrough was transporting a loaded
weapon in a careless, concealed manner that predictably increased
the risk of harm. Such information would be vital for the jury's
consideration of Yarbrough's relative fault, see, e.g., Duncan v.
Cessna Aircraft Co., 665 S.W.2d 414, 428 (Tex. 1984) (Texas courts
compare plaintiff's conduct with conduct or product of defendant),
and the court's exclusion of it makes it impossible for Sturm,
Ruger to present its defense fully, unfairly prejudicing the
company.
Instead, the court sanitizes Yarbrough's conduct, and Sturm,
Ruger was deprived of the opportunity to have any fault attributed
to it compared to the fault of the plaintiff. See Duncan, id. In
such a context, we cannot say that permitting the introduction of
the evidence would unduly prejudice Yarbrough, and hence such
evidence should be admitted in the new trial.
We thus VACATE the judgment and REMAND for a new trial on all
issues.
6
See Ramirez v. Volkswagen of Am., Inc., 788 S.W.2d 700, 705 (Tex. App.
SQ Corpus Christi 1990, writ denied) (evidence of product liability plain-
tiff's earlier barroom brawl properly admitted as tending to establish his
motive and state of mind and was "clearly critical" to establish that he had
been driving at great speed).
10
