United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                 ___________

                                 No. 01-2861
                                 ___________

Joe Rustenhaven, husband;             *
Mary Rustenhaven, wife,               *
                                      *
            Appellees,                * Appeal from the United States
                                      * District Court for the
      v.                              * Eastern District of Arkansas.
                                      *
American Airlines, Inc.,              *
                                      *
            Appellant,                *
                                 ___________

                            Submitted: April 16, 2002

                                Filed: February 21, 2003
                                 ___________

Before WOLLMAN, LOKEN, and MURPHY, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

      Appellant American Airlines (American) appeals from the judgment entered
on verdicts for appellees Joe and Mary Rustenhaven (Mr. and Mrs. Rustenhaven).
We affirm, conditioned on the acceptance by the Rustenhavens of the remittiturs
ordered on their respective verdicts.

     The Rustenhavens brought suit for damages resulting from the crash of
American’s Flight 1420 in Little Rock, Arkansas, on June 1, 1999, for which
American admitted liability.1 They sought damages for Mr. Rustenhaven’s lost past
wages, his lost earning capacity, his past and future medical costs, and his pain and
suffering and for Mrs. Rustenhaven’s loss of consortium. After a four-day trial, the
jury returned verdicts of $4,242,000 for Mr. Rustenhaven and $2,000,000 for Mrs.
Rustenhaven. American renewed its motion for judgment as a matter of law and filed
a motion for new trial, or, in the alternative, for remittitur, challenging the verdicts
as excessive as a matter of law. It is from the district court’s denial of those motions
that American now appeals.

                                           I.

      Mr. Rustenhaven was traveling from California to Little Rock, Arkansas,
aboard Flight 1420 in order to deliver a presentation as part of the relocation to
Maumelle, Arkansas, of the military division of his employer, BEI. Sixty years old
at the time, he had been selected to head the purchasing department and was
scheduled to move to Arkansas at the end of June 1999. As recounted in Manus v.
Am. Airlines, Inc., 

(8th Cir. 2003), Flight 1420 was delayed at least
twice and did not approach Little Rock until almost midnight on June 1, 1999. As the
plane touched down during a raging thunderstorm, it ran off the runway and finally
came to rest after striking an electrical stanchion and breaking into three pieces.

       As the plane came to a stop, Mr. Rustenhaven, who was seated in an emergency
exit row, was hit on the head and briefly lost consciousness. When he regained
consciousness, he saw burning wires directly in front of him. He attempted to
unbuckle his seatbelt, but could not do so. He was then struck on the head again and
once again briefly lost consciousness. Upon regaining consciousness, he again

      1
       For other decisions regarding the litigation resulting from the crash of Flight
1420, see Manus v. Am. Airlines, Inc., 

(8th Cir. 2003); Maddox v. Am.
Airlines, Inc., 

(8th Cir. 2002); Lloyd v. Am. Airlines, Inc., 

(8th Cir. 2002); and Chu v. Am. Airlines, Inc., 

(8th Cir. 2002).

                                          -2-
attempted to escape his seatbelt and unsuccessfully tried to open the emergency exit
door. As he arose from his seat after finally managing to release his seat belt, he
could see that some of the passengers were afire. As he stepped out into the aisle, he
was knocked down and trampled as other passengers pushed to escape the burning
aircraft. Regaining his feet, he made his way to an over-wing exit, where he either
slipped or was pushed onto the wing, once again striking his head and losing
consciousness. After regaining consciousness, he dropped from the wing to the
ground and was pulled away from the plane by another passenger. As he walked
unsteadily in the rain and pelting hail to distance himself farther from the plane, he
fell into a tributary of the Arkansas River and was swept a short way down stream.
After he pulled himself from the river, he could see that the rear of the plane was on
fire, and he saw a woman passenger, clothes smoking, approaching him. The two
attempted to make their way back toward the airplane, but became separated in the
tall grasses that surround the river. Eventually he reached an area where other
survivors were gathered. He lay down on the ground and waited until fire fighters
arrived. He was ultimately transported to a local hospital, where he remained until
June 4. While hospitalized, he underwent a number of tests, including a CAT scan
and MRI, which revealed no abnormalities.

       Following his discharge from the hospital and up until the time of trial, Mr.
Rustenhaven was examined and evaluated by three medical doctors, five
psychiatrists, one clinical social worker, one neurologist, one neuropsychologist, and
one psychotherapist. He was diagnosed as suffering from cognitive deficits, anxiety
disorder, post-concussive syndrome, post-traumatic stress headaches, post-traumatic
stress disorder (PTSD), major depression, and petit mal absence seizures. His
symptoms included insomnia, flashbacks, nightmares, hallucinations, lack of
concentration, forgetfulness, and increased startle response. At the time of trial, he
was taking numerous prescribed medications to treat his sleeplessness, headaches,
hallucinations, and seizure activity.



                                         -3-
       Two weeks after the crash, the Rustenhavens followed through on their plans
to move to Arkansas, whereupon Mr. Rustenhaven started his new position as head
of the purchasing department. Although he performed acceptably at his job, even
earning an above average performance rating, both he and Mrs. Rustenhaven noticed
changes in his behavior and outlook. He found it difficult to concentrate at work,
called Mrs. Rustenhaven approximately twelve times a day, and rarely, if ever,
worked a full day. He reduced his time in the office to half days and was ultimately
placed on permanent disability.

      Since the crash, the Rustenhavens have experienced a deterioration in their
marital relationship. Because of Mr. Rustenhaven’s lack of interest in such activities,
they no longer take long walks, go fishing regularly, eat out at restaurants, or attend
movies. They found it necessary to purchase a king-size bed because of Mr.
Rustenhaven’s frequent jerking and spasms from nightmares. They have not been
sexually intimate since the crash.

       Mr. Rustenhaven’s relationship with his children and grandchildren has also
changed. He no longer talks to his daughter or grandchildren on the telephone,
instead using Mrs. Rustenhaven as a conduit through which to express himself.
Although his son tries to visit often, their relationship is not the same as it was before
the crash. On the one occasion that Mr. Rustenhaven attempted to attend a family
gathering at his son’s home, he hid in the bedroom because he could not endure the
number of people or the related activity.

                                           II.

        American asserts that the awards to the Rustenhavens are excessive as a matter
of law and that the district court abused its discretion by not granting American a new
trial or, in the alternative, a remittitur.



                                           -4-
                                           A.

       A district court’s denial of a motion for new trial is reviewed for abuse of
discretion. Lloyd v. Am. Airlines, Inc., 

, 509 (8th Cir. 2002) (citing Van
Steenburgh v. Rival Co., 

, 1160 (8th Cir. 1999)). The question of the
excessiveness of a verdict in a diversity case such as this is judged in accordance with
state substantive law. See Schaefer v. Spider Staging Corp., 

, 738 (8th
Cir. 2002) (citing Gasperini v. Ctr. for Humanities, 

, 426-38 (1996));

. Under Arkansas’s standard of review, a verdict is excessive
where “the award is so great that it shocks the conscience of the court or demonstrates
that the trier of fact was motivated by passion or prejudice.” Peoples Bank & Trust
Co. v. Globe Int’l Publ’g, Inc., 

, 1071 (8th Cir. 1992). The manner in
which we review the evidence is a procedural matter governed by federal law.

.

       “A motion for new trial is appropriately granted if the verdict is against the
weight of the evidence and if allowing it to stand would result in a miscarriage of
justice.” 

. “On a motion for new trial, the district court is
entitled to interpret the evidence and judge the credibility of witnesses, but it may not
usurp the role of the jury by granting a new trial simply because it believes other
inferences and conclusions are more reasonable.” Van 

(citing White v. Pence, 

, 780-81 (8th Cir. 1992)). “In reviewing the
district court’s decision, we give great deference to its judgment, because the district
court has the benefit of hearing testimony and observing the demeanor of witnesses
throughout the trial.” Bonner v. ISP Techs., Inc., 

, 932 (8th Cir. 2001)
(citing Sanford v. Crittenden Mem’l Hosp., 

, 884 (8th Cir. 1998)).




                                          -5-
                                        B.

       We turn first to the question of the excessiveness of the loss of consortium
award. Notwithstanding the deference we must afford the district court’s
determination, we conclude that the award is excessive under the Arkansas shock-the-
conscience standard of review. In so holding, we note that in denying the new trial
motion, the district court observed that the award was “quite high.” Although there
is evidence that supports some award for loss of consortium, Arkansas case law does
not support an award of this size.

       We must view each award on its own merits. Morrison v. Lowe, 

, 455-56 (Ark. 1981). Past awards, however, can be useful in determining what
is fair and reasonable according to the evidence presented at trial, and Arkansas
courts look to previous cases for guidance. Scott v. Jansson, 

, 592
(Ark. 1974) (viewing evidence and amount of verdict “[i]n the light of our earlier
cases”).

       Consortium includes “comfort, society, affection, services, and other
indefinable elements reasonably expected from the injured [spouse].” Johnson
Timber Corp. v. Sturdivant, 

, 253 (Ark.), set aside on other grounds,

(Ark. 1988). It may not include damages personal to the injured
spouse. See 

; Bailey v. Stewart, 

, 663-64
(Ark. 1963). In order to gauge the extent of the loss, the jury may take into
consideration the quality of the marital relationship before the injury, Mo. Pac.
Transp. Co. v. Miller, 

, 46 (Ark. 1957), and the severity and length of
the injury to the primary plaintiff. 

; 

; 

. The Rustenhavens argue that Mrs. Rustenhaven
must be compensated not only for the loss of the marriage relationship she shared
with Mr. Rustenhaven, but also for having “gained” a dependent spouse. They cite



                                        -6-
to no authority for this proposition, however, and we are not persuaded that any such
authority exists in Arkansas law.

      It is undisputed that the Rustenhavens have experienced a diminishment in the
enjoyment they formerly experienced from participating in the activities described
above. They also have not been sexually intimate since the crash, in contrast to their
pre-crash sexual relations, which Mrs. Rustenhaven described as “probably normal.”
Although Mrs. Rustenhaven testified that this lack of sexual intimacy bothered Mr.
Rustenhaven, she did not testify that it had a similar effect upon her. There was also
evidence, however, that Mr. Rustenhaven had experienced stress and depression back
in 1996-97 and had complained to his then-treating physician of having lost interest
in food and sex.

       In addition to the change in the sexual-intimacy aspect of their relationship, Mr.
Rustenhaven no longer assists Mrs. Rustenhaven in meal preparation by grilling out
or otherwise helping to prepare meals as he did prior to the crash. On the other hand,
he has taken over all of the yard work, which the two previously had shared.
Although he is much more dependent upon Mrs. Rustenhaven than he was before the
crash, Mr. Rustenhaven does make trips to the store and to his therapy appointments
and continues to drive an automobile.

      There was testimony that the marital relationship would continue to change and
that Mrs. Rustenhaven would become a full-time care giver rather than a wife. As
pointed out above, however, this type of evidence relates to damages personal to the
injured spouse and not that properly encompassed within an award for loss of
consortium. See, e.g., 

. We have no way of calculating
the precise amount that the jury may have awarded based upon this erroneously
admitted evidence, but given the prominence it played in Mrs. Rustenhaven’s
description of the post-crash changes in her husband’s relationship with her and her
children, we cannot assume that it did not have a substantial effect upon the verdict.

                                          -7-
       We have not been cited to any Arkansas case that has upheld a verdict for loss
of consortium in the amount awarded in this case. We acknowledge, of course, that
each case must be judged upon its own facts, but in light of the loss of consortium
awards upheld in other cases, and even after taking into account the diminished value
of the dollar, we believe that the award in this case is excessive under the Arkansas
shock-the-conscience standard of review. See, e.g., Ouachita Nat’l Bank v. Tosco
Corp., 

(1983) (en banc); Johnson Timber Corp., 

.

       In sum, then, although Mrs. Rustenhaven is without doubt entitled to an award
for loss of consortium, we conclude that the evidence does not support an award in
the amount of $2 million and that the verdict must therefore be reduced or a new trial
ordered. Accordingly, and consistent with our authority to order a remittitur on
appeal, see 

and cases cited therein, we conditionally affirm
the judgment entered on the verdict, subject to Mrs. Rustenhaven’s acceptance of a
remittitur judgment in the amount of $500,000 on her loss of consortium claim.

                                         C.

      American contends that the award of non-economic damages to Mr.
Rustenhaven is excessive as a matter of law. Although we agree that this award must
be remitted or a new trial ordered, we conclude that American has understated the
emotional trauma that Mr. Rustenhaven was subjected to as a result of the crash.

       In support of its argument that case law does not support an award of this
magnitude, American relies, as it did in Manus, in large part upon cases that did not
involve the life-threatening ordeal experienced by Mr. Rustenhaven and the
passengers on Flight 1420, citing cases of employment discrimination, defamation,
false light invasion of privacy, and conversion.




                                         -8-
       There is no question that Mr. Rustenhaven has suffered mental and emotional
consequences as a result of the crash, the extent and degree of severity of which were
hotly contested at trial. American contends that the verdict is excessive because Mr.
Rustenhaven did not suffer a brain injury, has never suffered hallucinations, and has
exaggerated all of his symptoms. Likewise, American points to the undisputed
evidence that Mr. Rustenhaven suffered from stress and depression well before the
crash. On the other hand, there was expert testimony that neuropsychological testing
revealed cognitive deficits that had their genesis in a right frontal brain injury.
Likewise, there was testimony from lay persons about how those cognitive deficits
manifested themselves in Mr. Rustenhaven’s day-to-day life. The jury was instructed
regarding its prerogative to give whatever weight it deemed proper to the opinions
offered by the several expert witnesses. Accordingly, the jury was not obligated to
accept the opinion of American’s forensic psychiatrist, who testified that Mr.
Rustenhaven exhibited the symptoms of factitious disorder.

       There was evidence from which a reasonable jury could find that Mr.
Rustenhaven suffers and will continue to suffer from numerous impairments,
including depression, PTSD, and cognitive deficits; that he was forced to give up a
job in which he had thrived; that his relationship with his wife has deteriorated; and
that his relationship with his children and grandchildren has been adversely affected.
It was for the jury to determine, based upon its observation of Mr. Rustenhaven’s
demeanor on the witness stand, whether he was exaggerating or fabricating his
physical and emotional injuries.

       American contends that the speculative nature of the testimony regarding Mr.
Rustenhaven’s loss of earning capacity and his future medical expenses contributed
to the excessiveness of the verdict. Without recounting this evidence in detail, and
granting that the portion thereof which dealt with the likelihood of future medical
expenses was less than compelling, we conclude that it was sufficiently probative to
support a substantial award for those elements of damages.

                                         -9-
       Likewise, we conclude that the district court did not abuse its discretion in
overruling American’s objection to the proposed testimony of one of Mr.
Rustenhaven’s expert witnesses to the effect that his seizures resulted from the crash.
See, e.g., United Fire & Cas. Co. v. Historic Pres. Trust, 

, 726 (8th Cir.
2001). In so holding, we note that American first raised its Daubert objection to this
testimony at the pre-trial conference held the day before the trial was to commence.
We have no reason to believe that the district court did not give the objection the
careful attention it deserved in the time available for review.

      In sum, then, we conclude that the evidence was sufficient to support a
substantial award for Mr. Rustenhaven’s loss of earning capacity, his future medical
expenses, and his pain and suffering. Nevertheless, we also conclude that the award
exceeds that which we referred to in Manus as “the outer limit” of an award for
damages for injuries in the nature of those suffered by Mr. 

. As we said with respect to the award in Lloyd, “Clearly [Mr. Rustenhaven]
suffered compensable physical injuries and it is equally clear that some of [his]
emotional trauma can be fairly traced to those 

.
Accordingly, and consistent with what we did in Lloyd, we prefer to grant Mr.
Rustenhaven the opportunity to accept a remittitur in lieu of the necessity of another
adversary proceeding. We therefore hold that although the judgment in Mr.
Rustenhaven’s favor should be affirmed, we condition such affirmance on his
acceptance of a remittitur for judgment in the amount of $3,242,000.

                                     Conclusion

       We conditionally affirm the judgment entered on the verdict in favor of Mrs.
Rustenhaven, subject to her acceptance of a remittitur judgment in the amount of
$500,000. Absent her acceptance of the remittitur, we reverse and remand for new
trial on her claim of damages for loss of consortium.



                                         -10-
      We conditionally affirm the judgment entered on the verdict in favor of Mr.
Rustenhaven, subject to his acceptance of a remittitur judgment in the amount of
$3,242,000. Absent Mr. Rustenhaven’s acceptance of the remittitur, we reverse and
remand for new trial on his claim of damages for his lost earning capacity, his past
and future medical costs, and his pain and suffering.

      A true copy.

            Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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