Last week the New Mexico Supreme Court affirmed the largest jury verdict in the State’s history. In Morga v. FedEx Ground Package Systems, Inc., the jury had awarded four Plaintiffs a total of more than $165 million to compensate them for a tragic trucking accident. The court of appeals affirmed. In this case, the Supreme Court also affirmed, rejecting FedEx’s argument that the verdict was excessive and a new trial should have been granted.
This case arises out of a trucking accident. A semi-truck hauling double trailers rear-ended a small pickup truck that was stopped with its flashers on in the right lane. The truck driver apparently never saw the car and made no attempt to stop or avoid it. A mother and one of her children in the pickup were killed; another child survived but was critically injured. The semi-truck driver was also killed.
The jury returned a verdict of more than $165 million dollars. Somewhat unusually, the large verdict did not contain punitive damages. The jury awarded $61 million for the death of the daughter and $32 million for the death of the mother. It awarded another $32 million for the injured son. The jury also awarded about $40 million to the father, who was not in the accident but who made claims for loss of consortium and the exacerbation of certain physical ailments he had.
After the verdict, the district court judge recused herself based on an ex-parte communication with plaintiff’s counsel. The new district court judge denied Defendant’s motion for a new trial or to lower the verdict. The court of appeals affirmed.
The defense seized on a procedural irregularity in this case to try to overturn the denial of their motion for a new trial. After the verdict but before the motion for a new trial, the original district court judge recused herself due to an ex parte contact she had with plaintiff’s counsel. On appeal, defendants argued that the recusal justified using the more lenient de novo standard of review instead of the traditional abuse of discretion standard.
Defendants’ argument was simple: because a different judge decided the motion for a new trial, his decision was not entitled to the same deference that the original judge would have received. This argument had some superficial appeal. It failed, however, because the applicable standards of review did not depend on deference to the trial judge. Instead, the excessive verdict argument is reviewed de novo, and the motion itself is reviewed in light of that determination and whether there is evidence to support the verdict.
The issue is unlikely to arise again any time soon. It is important, however, inasmuch as it provides a framework for the rest of the opinion: whether the verdict was excessive.
Having resolved the standard of review question, the Court proceeded to whether the verdict was excessive. A jury’s award is excessive if (1) the evidence, viewed in the light most favorable to the plaintiff, does not substantially support the award, or (2) there is an indication of passion, prejudice, partiality, sympathy, undue influence, or a mistaken measure of damages on the part of the fact finder. The reviewing court does not reweigh the evidence, but decides the question as a matter of law.
The court began by noting the difficulty of putting a value on non-economic damages. There is no fixed standard for doing so. Rather, our system is to trust the jury to arrive at a proper amount. This is reflected in the standard for finding an excessive verdict, which affords great deference to the jury verdict, disturbing it only if there are showings that the process itself was tainted.
FedEx attacked both prongs of the excessive verdict standard. First, it argued that the verdict was not supported by substantial evidence because (1) it was larger than other verdicts and (2) it was substantially larger than the proven economic damages. The Court made short work of the first argument, noting that FedEx had not provided the district court or court of appeals with any verdicts and had provided verdicts from cases that were not comparable. Moreover, its own search revealed verdicts that were as large or larger as the awards to individual plaintiffs in this case on more similar facts. Ultimately, however, the Court was skeptical of the value of other verdicts, emphasizing that each case must be decided on its own facts and circumstances.
The court also was not persuaded by the fact that the jury awarded far more for non-economic damages than for economic damages. Noneconomic damages include pain and suffering, future pain and discomfort, disfigurement, loss of enjoyment of life, mental anguish, and loss of consortium. They are, by their nature, difficult to quantify, and that is why we leave this task to the jury. They can occur absent any economic loss (such as cost of medical care), and often have no relationship at all to economic losses. Tying non-economic losses to economic losses was simply not feasible and not consistent with the Court’s precedent, and the Court rejected FedEx’s invitation to do so. Reciting some of the evidence supporting the damages in this case, the Court could not conclude that the verdict was not supported by the evidence.
The second prong that the Court was required to address was whether the verdict was the result of passion or prejudice. To prevail on this argument, FedEx was required to show that the verdict was infected with passion, prejudice, partiality, sympathy, undue influence, or some corrupt cause or motive. FedEx argued that the size of the verdict itself met this criteria. In addition, they contended that an unredacted photo of the accident scene, the emotional testimony of Alfredo Morga, and some allegedly inflammatory statements made by Plaintiff’s counsel explained the prejudice that motivated the jury verdict.
The court first held that the size of the verdict alone was not enough to infer passion or prejudice. While the Court was unwilling to say that size does not matter, it did note that size alone would not render a verdict excessive unless it was “outrageously excessive and beyond all reason.” This verdict did not rise to that level. Nor did it matter that the verdict exceeded the amounts that the Plaintiff had asked for at trial; prior cases had held that such requests did not create a ceiling for damages. Moreover, the differing amounts awarded to the different plaintiffs showed that the jury had carefully considered its award. Ultimately, the size of the award did not show that there were problems in the process, and therefore did not justify setting it aside.
The court also rejected FedEx’s arguments that the photo, Alfredo’s testimony, or the Plaintiff’s attorney’s comments invoked the passion or prejudice of the jury. As to Alfredo’s emotional testimony, a witness’s genuine emotional testimony is insufficient to show passion or prejudice. This is especially true when, as here, the jury is instructed that its award must not be based on sympathy for the injured person. Any other rule would invalidate every jury verdict where a witness was emotional–probably most of them. The Court also noted that had in the past approved the use of photographs that were significantly more graphic than the photo complained of, which predominantly showed wreckage. Finally, the Court declined to set aside the verdict based on the comments from Plaintiff’s counsel because the defense had not objected at the time they were made and the comments were not so egregious that the Court could overlook the failure to preserve the error.
While this case arguably did little to advance the law, it will likely have an outsized impact on litigation in the state anyway. The case shows that a jury can award massive non-economic damages and, in most cases, will be affirmed. And it confirms the saying that the best way to win on appeal is to win at trial.
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