“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Fifth Circuit judge Cory Wilson helped to vacate a jury award of $1 million in favor of a woman who was run over and seriously injured by a corporation manlift, even though the district judge had rejected a motion to vacate or reduce the jury verdict. The January 2021 case is Echeverry v Jazz Casino Co.
Carla Echeverry was standing at a corner near the Harrah’s casino in New Orleans, waiting to cross a street. Suddenly, a manlift hired by Harrah’s to remove birds from nearby trees struck her and ran her over, causing serious injuries. In particular, she suffered a significant fracture of her lower right leg and ankle that broke a bone into more than two pieces, requiring three operations and the insertion of screws and a metal plate in her leg to try to stabilize her ankle, as well as causing continuing pain and post-traumatic arthritis. She sued Harrah’s in state court for negligence, and the company removed the case to federal court. A federal jury found in her favor and awarded her $1 million for future pain and suffering. After the district judge rejected post-trial motions by Harrah’s, including a motion to reduce the damages award if it remained liable, the corporation appealed the case to the Fifth Circuit.
Trump judge Wilson was part of a unanimous panel that agreed that Harrah’s had been negligent and was liable for Echeverry’s injuries, but vacated the damages awarded by the jury and sent the case back so that she would be required to either accept a reduced amount or endure a new trial on damages. The panel agreed that the verdict could be set aside only if it found that the damages were “excessive” and that the district court had committed an “abuse of discretion” in declining to interfere with the jury’s verdict, but claimed that both were true in this case.
Based on its own review of the record, the panel maintained that the verdict was “beyond that which a reasonable trier of fact could assess,” noting that Echeverry had returned to her job as a pharmacy technician that requires her to stand much of the day and that she takes “pain medication throughout the work day to help with her pain.”
The panel also applied the so-called “maximum recovery rule” sometimes used by the Fifth Circuit, a judge-made standard that permits a verdict that is more than “150% of the highest inflation-adjusted recovery” in an “analogous” case to be reversed. The panel pointed to three Louisiana cases involving ankle fractures between 1982 and 2000 in which the maximum award was just under $250,000. “Even accounting for inflation,” the panel stated, this shows that Echeverry’s jury verdict was “excessive,” and provided “guidance” on “what the highest reasonable award” to her would be. Although the district court had found a Louisiana case involving a similar ankle injury where the verdict was $700,000 for pain and suffering, the panel refused to consider it because it was “unpublished” and the verdict had been reversed on evidentiary grounds.
The district judge, a trial judge with more than 25 years of judicial experience, saw things very differently. In a 21-page opinion rejecting Harrah’s post-trial motions, Judge Eldon Fallon noted that the Fifth Circuit had long held that an appellate court should not determine whether a compensatory damages verdict is excessive just by “comparing verdicts in similar cases,” but instead must “review each case on its own facts.” Based on his review of the “unique” facts of the case over which he presided at trial, Fallon determined that the verdict was not “clearly excessive” and was “supported by the evidence.” In addition to what has ben described above, the judge noted that the evidence showed that Echeverry was suffering from “chronic pain” and will have “ankle instability, discomfort while walking, painful arthritis, and painful scarring.” The evidence also showed that Echeverry’s ankle will continue to “wear down” over the years, she will have “progressive posttraumatic arthritis” in her ankle, she will likely need further surgery to deal with the “worsening pain, stiffness and arthritis,” and her pain and stiffness will be “permanent” for the rest of her life, estimated at more than 52 additional years. All this was available to the panel, which mentioned very little of it in its decision.
As to other cases, Fallon noted that the decisions referred to by Harrah’s were not “analogous,” because they did not involve injured people with post-traumatic arthritis or discussed only “lump sum general damages,” which is also true in the cases discussed by the panel. In contrast, Fallon noted, the victim in the case who received a $700,000 pain and suffering award was found at “high risk” of developing such arthritis, and the reversal related to a different award for emotional distress.
The panel decision including Walker will have a devastating impact on Carla Echeverry as a victim of corporate misconduct, reducing the jury verdict in her favor by at least $750,000. It is clearly contrary to the decisions of other federal appellate courts, some of which have actually reversed decisions by trial judges that have reduced jury damages verdicts. As one commentator noted as early as 1989, federal appellate reversal of jury verdicts as excessive represents a “drastic departure” from past practice, under which appeals courts gave deference to jury verdicts under the Seventh Amendment and the views of trial judges.