Konkel v. Bob Evans Farms Inc.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CAROL M. KONKEL,

Plaintiff-Appellee,

v.

BOB EVANS FARMS INCORPORATED,

No. 97-1824

Defendant-Appellant,

and

ECOLAB, INCORPORATED,

Defendant.

CAROL M. KONKEL,

Plaintiff-Appellant,

v.

BOB EVANS FARMS INCORPORATED,

No. 97-1867

Defendant-Appellee,

and

ECOLAB, INCORPORATED,

Defendant.

Appeals from the United States District Court

for the Western District of Virginia, at Harrisonburg.

B. Waugh Crigler, Magistrate Judge.

(CA-96-20-H)

Argued: September 24, 1998

Decided: January 4, 1999

Before MURNAGHAN and HAMILTON, Circuit Judges, and

MAGILL, Senior Circuit Judge of the United States Court of

Appeals for the Eighth Circuit, sitting by designation.

Affirmed in part, vacated in part and remanded by published opinion.

Judge Hamilton wrote the opinion, in which Judge Murnaghan and

Senior Judge Magill joined.

_________________________________________________________________

COUNSEL

ARGUED: Steven Walter Bancroft, TRICHILO, BANCROFT,

MCGAVIN, HORVATH & JUDKINS, P.C., Fairfax, Virginia, for

Appellant. Robert Theodore Mitchell, Jr., James Anthony Klenkar,

HALL, MONAHAN, ENGLE, MAHAN & MITCHELL, Winchester,

Virginia, for Appellee. ON BRIEF: Melissa S. Hogue, Michael J.

Carita, TRICHILO, BANCROFT, MCGAVIN, HORVATH & JUD-

KINS, P.C., Fairfax, Virginia, for Appellant.

_________________________________________________________________

OPINION

HAMILTON, Circuit Judge:

Bob Evans Farms, Inc. (Bob Evans), owner of a restaurant in Car-

lisle, Pennsylvania, appeals from a $1,000,000 judgment in favor of

one of its customers, Carol Konkel (Konkel), as compensation for her

physical and emotional damages flowing from her ingestion of hot

tea, contaminated with Eco-line Finish cleaning detergent, served to

her at Bob Evans.1 The principal issue presented in this appeal is

whether the magistrate judge abused his discretion in denying Bob

Evans' motion pursuant to Federal Rule of Civil Procedure 59(a) for

a new trial based upon the alleged excessiveness of the jury's com-

pensatory damage award. Concluding that $25,000 in compensatory

damages is the outermost award that could be sustained, we reduce

the award to $25,000 or grant a new trial nisi remittitur at Konkel's

option. With regard to the additional issues presented on appeal, we

affirm the magistrate judge's denial of Bob Evans' alternative

_________________________________________________________________

1 Ecolab, Inc., the manufacturer of Eco-line Finish cleaning detergent,

was originally also a defendant in this action. However, Konkel dis-

missed her claims against Ecolab, Inc. prior to trial. Ecolab, Inc. is not

a party in this appeal.

2

motions under Federal Rule of Civil Procedure 50(b) for judgment as

a matter of law or for a new trial, his denial of Bob Evans' motion

for relief from judgment pursuant to Federal Rule of Civil Procedure

60(b)(6), his denial of Konkel's motion to amend the ad damnum

clause of her complaint to add a request for punitive damages, and his

grant of Bob Evans' motion in limine to exclude evidence to support

a claim for punitive damages.

I

On March 22, 1994, Konkel had dinner at Bob Evans and ordered

hot tea with her meal. The waitress brought Konkel a carafe full of

hot water, a tea bag, and a mug.2 After allowing the tea to steep in

the carafe, Konkel poured herself a full mug of hot tea and drank it.

Shortly thereafter, the waitress inquired as to whether Konkel wanted

a refill of hot water so that she could have a second mug of hot tea.

Upon Konkel's affirmative response, the waitress poured hot water

from a coffee pot into Konkel's carafe.

Konkel waited for the tea to steep in the carafe, poured herself a

second mug of hot tea, and then swallowed one mouthful of it. Upon

swallowing, Konkel noticed that the hot tea tasted soapy, and she felt

a burning sensation in her throat. Konkel notified Bob Evans' staff

that her hot tea tasted soapy, and the waitress and the manager

smelled the hot tea and stated that the hot tea smelled like the Eco-

line Finish cleaning detergent that Bob Evans used to clean its coffee

pots. The manager concluded that the waitress had accidentally served

Konkel from a coffee pot that contained a packet of Eco-line Finish

cleaning detergent.

After leaving Bob Evans, Konkel continued to suffer pain in her

chest and therefore visited the emergency room. At the emergency

room, Dr. Lawrence Boyler, an emergency room physician, examined

Konkel, diagnosed her slightly red throat as esophageal chemical

burn, and estimated that she would recover rapidly. Almost a year

after the incident at Bob Evans, Konkel suffered chest discomfort and

visited her family physician, Dr. Edward Cullen, who performed tests

_________________________________________________________________

2 The carafe and the mug each could hold approximately one cup of liq-

uid.

3

producing normal results. Thereafter, Konkel visited two gastroenter-

ology specialists who performed tests also producing normal results.

Despite the fact that all the tests on Konkel produced normal

results, one of the specialists, Dr. Nicholas Snow, diagnosed Konkel

as suffering from heightened visceral nociception (HVN)3 of the

esophagus and prescribed her anti-depressants to numb the nerves in

her esophagus. Dr. Snow concluded that Konkel's condition was the

result of her ingestion of the "mouthful" of hot tea containing Eco-

line Finish cleaning detergent at Bob Evans a year and a half earlier.

Thereafter, Konkel filed a complaint against Bob Evans in the Cir-

cuit Court of Clarke County, Virginia, alleging that Bob Evans acted

negligently and in breach of its express and implied warranties "that

the food and beverages served at [Bob Evans] were safe and fit for

human consumption" when it served Konkel hot tea containing Eco-

line Finish cleaning detergent. (J.A. 20). In her complaint, Konkel

requested $1,000,000 in compensatory damages on each of her

claims, but did not request punitive damages. Bob Evans subse-

quently removed the case to the United States District Court for the

Western District of Virginia based upon diversity jurisdiction. See 28

U.S.C. § 1332. The case proceeded into the discovery phase, with the

parties agreeing that the law of Pennsylvania applied to all substantive

issues in the case.

Three days before the end of discovery, in supplemental answers

to Bob Evans' interrogatories, Konkel requested punitive damages. In

response, Bob Evans moved in limine to exclude evidence to support

a claim for punitive damages because Konkel did not aver them in her

complaint. Following the close of discovery, Konkel moved for sum-

mary judgment on all counts.

During a hearing on the motions, Konkel orally moved for leave

to amend her ad damnum clause to request punitive damages, but the

magistrate judge denied her motion. At the conclusion of the hearing,

_________________________________________________________________

3 Dorland's Illustrated Medical Dictionary, 1141, 1831-32, (28th ed.

1994), defines "nociception" as "pain sense" and "visceral" as pertaining

to "any large interior organ in any one of the three great cavities of the

body, especially in the abdomen."

4

the magistrate judge denied Konkel's motion for summary judgment

as to her negligence claim, but granted the motion as to her breach

of warranties claim with respect to liability only. The magistrate

judge granted Bob Evans' motion in limine to exclude evidence of

punitive damages because Konkel did not allege sufficient facts in her

complaint to give Bob Evans notice of her claim for punitive dam-

ages, and leave to amend at such a late date would prejudice Bob

Evans.

The case proceeded to trial before a jury on the issue of damages

for Bob Evans' breach of warranties and on the issue of whether Bob

Evans' conduct constituted negligence. By consent of the parties, a

magistrate judge presided over the trial. See 28 U.S.C. § 636(c). At

trial, Konkel's theory of the case was that, as evidenced by Dr.

Snow's expert testimony, Bob Evans' conduct caused her serious,

substantial, and permanent physical injury that had a devastating

impact on her life. Konkel testified that her HVN caused her to

severely restrict her diet, thereby affecting her relationships with her

husband, her family, and her friends. In response to Konkel's evi-

dence, Bob Evans introduced the testimony of Dr. Anthony Kalloo.

Dr. Kalloo acknowledged that HVN was a medical condition, but

opined that the data was insufficient to diagnose Konkel with HVN

and that Konkel's esophagus was normal.

At the close of Konkel's evidence, Bob Evans moved for judgment

as a matter of law under Federal Rule of Civil Procedure 50(a)

because Konkel had not submitted medical bills or records and the

only evidence of causation was Dr. Snow's testimony. The magistrate

judge granted Bob Evans' motion in part, excluding testimony of any

medical expenses Konkel incurred in the past or expected to incur in

the future and also excluding any instruction to the jury regarding

medical expenses.

At the close of evidence, Konkel moved for judgment as a matter

of law pursuant to Rule 50(a) on her negligence claim. The magistrate

judge granted the motion in part, concluding that as a matter of law

Bob Evans had breached its duty of care, but the magistrate judge sent

to the jury the issue of what compensatory damages were proximately

caused by Bob Evans' conduct. Specifically, on the issue of damages,

the magistrate judge instructed the jury to determine whether Konkel

5

had suffered or would suffer damages -- past or future physical pain,

mental anguish, humiliation, embarrassment, inconvenience, or loss

of enjoyment of life -- and if so, the amount of those damages. Fol-

lowing its deliberations, the jury found that Konkel suffered damages

in the amount of $1,000,000 as a proximate result of Bob Evans' con-

duct.

Subsequently, Bob Evans moved for a new trial pursuant to Federal

Rule of Civil Procedure 59(a) based upon the alleged excessiveness

of the jury's compensatory damage award. Specifically, Bob Evans

contended that the jury's compensatory damage award was excessive

because Konkel had not submitted objective medical evidence of

injury, medical expenses, lost wages, lost earning capacity, or loss of

employment opportunities. Bob Evans also moved for judgment as a

matter of law or in the alternative for a new trial pursuant to Federal

Rule of Civil Procedure 50(b). The magistrate judge issued a joint

order denying the Rule 59(a) and the Rule 50(b) alternative motions

because Dr. Snow's testimony provided "a legally sufficient evidenti-

ary basis for the jury's verdict." (J.A. 552). Additionally, the magis-

trate judge concluded that the jury's verdict was"not against the clear

weight of the evidence," and "the outcome was not a miscarriage of

justice." Id. Accordingly, the magistrate judge entered judgment in

favor of Konkel in the amount of $1,000,000.

Thereafter, Bob Evans moved for relief from judgment pursuant to

Federal Rule of Civil Procedure 60(b)(6) based on jury misconduct.

In support of its motion, Bob Evans attached an affidavit from Bob

Evans' counsel's secretary. In the affidavit, the secretary stated that

she had spoken to the foreman of the jury, who told her that the jury

had performed an experiment in the jury room "to determine the

amount of liquid that was in the coffee pot at Bob Evans" when the

waitress refilled Konkel's carafe, and in performing the experiment,

had used a cup not admitted into evidence. (J.A. 566). The magistrate

judge denied Bob Evans' Rule 60(b)(6) motion, concluding the jury's

experiment did not constitute jury misconduct, because the experi-

ment was merely an examination of the admitted evidence and an

application of the admitted testimony regarding the concentration of

the detergent in the hot water served to Konkel.

Bob Evans subsequently filed a timely notice of appeal, and Kon-

kel filed a timely notice of cross-appeal. On appeal, Bob Evans con-

6

tends that the magistrate judge erred in denying its Rule 50(b) motion

for judgment as a matter of law, its alternative Rule 50(b) motion for

a new trial, its Rule 59(a) motion for a new trial, and its Rule 60(b)(6)

motion for relief from judgment. On cross-appeal, Konkel alleges that

the magistrate judge erred in denying her oral motion to amend her

ad damnum clause to add a request for punitive damages and in grant-

ing Bob Evans' motion in limine to exclude evidence related to puni-

tive damages.

II

First, we address Bob Evans' argument that the evidence was not

sufficient to support the jury's findings of causation, including its

obvious finding that Konkel suffered from HVN as a result of Bob

Evans' conduct, and that therefore, the magistrate judge erred in

denying its alternative motions under Rule 50(b) for judgment as a

matter of law or for a new trial. We review a district court's denial

of a Rule 50(b) motion for judgment as a matter of law de novo. See

White v. County of Newberry, 985 F.2d 168, 172 (4th Cir. 1993). A

Rule 50(b) motion should be granted if a district court determines,

without weighing the evidence or considering the credibility of the

witnesses, that substantial evidence does not support the jury's find-

ings. See id. In reviewing a district court's decision on a Rule 50(b)

motion, we view all the evidence in the light most favorable to the

prevailing party and draw all reasonable inferences in his or her favor.

See Austin v. Torrington Co., 810 F.2d 416, 420 (4th Cir. 1987). We

review a denial of a motion for a new trial under Rule 50(b) for abuse

of discretion. See Bristol Steel & Iron Works, Inc. v. Bethlehem Steel

Corp., 41 F.3d 182, 186 (4th Cir. 1994).

The question before us is whether Konkel presented sufficient evi-

dence to support the jury's finding that she suffered damages that

were proximately caused by Bob Evans' conduct. In order to establish

proximate cause under Pennsylvania law, the plaintiff must show by

a preponderance of the evidence that the defendant's acts or omis-

sions were a substantial factor in causing the plaintiff's harm. See

First v. Zem Zem Temple, 686 A.2d 18, 21 (Pa. Super. 1996).

Konkel presented the testimony of Dr. Snow that the likely perma-

nent HVN she suffered was caused by Bob Evans' conduct. In

7

response, Bob Evans presented the testimony of Dr. Kalloo, who

opined that the data was insufficient to diagnose Konkel with HVN

and that Konkel's esophagus was normal. Obviously, it was up to the

jury to decide which expert -- Dr. Snow or Dr. Kalloo -- was more

credible. Through its verdict, it is evident that the jury found Dr.

Snow more credible, and we are in no position to take issue with that

finding. In short, Dr. Snow's testimony was sufficient to support a

reasonable jury's finding that Bob Evans' conduct was a substantial

factor in causing Konkel's HVN. Accordingly, we conclude that the

magistrate judge's denial of Bob Evans' motion for judgment as a

matter of law under Rule 50(b) was proper.4

III

Next, we address Bob Evans' contention that the $1,000,000 com-

pensatory damage award is excessive, and therefore, the magistrate

judge erred in denying its Rule 59(a) motion for a new trial based

upon the alleged excessiveness of the jury's compensatory damage

award.

We review a district court's denial of a Rule 59(a) motion for a

new trial based upon the alleged excessiveness of the jury's compen-

satory damage award for abuse of discretion, giving"the benefit of

every doubt to the judgment of the trial judge." Gasperini v. Center

for Humanities, Inc., 518 U.S. 415, 438-39 (1996). Whether a jury

award is excessive is a question of law. See id. at 436-38. If we find

a jury's damage award excessive, we may "grant a new trial nisi

remittitur, which gives the plaintiff the option of accepting the remit-

titur or of submitting to a new trial." Cline v. Wal-Mart Stores, Inc.,

144 F.3d 294, 305 n.2 (4th Cir. 1998).

The Supreme Court in Gasperini addressed the appropriate stan-

dard under which a district court must evaluate a Rule 59(a) motion

for a new trial based upon the alleged excessiveness of the jury's

compensatory damage award. See Gasperini, 518 U.S. at 438-39. The

_________________________________________________________________

4 For the reasons stated above, we conclude that the magistrate judge's

denial of Bob Evans' alternative Rule 50(b) motion for a new trial was

not an abuse of discretion. See James v. Jacobson, 6 F.3d 233, 239 (4th

Cir. 1993).

8

Supreme Court determined that because the doctrine of Erie R.R. Co.

v. Tompkins, 304 U.S. 64 (1938), "precludes a recovery in federal

court significantly larger than the recovery that would have been tol-

erated in state court," Gasperini, 518 U.S. at 430-31, a district court

sitting in diversity must apply state law standards when it considers

a Rule 59(a) motion for a new trial based upon the alleged excessive-

ness of the jury's compensatory damage award. See id. at 438-39.

Gasperini overruled our circuit precedent that called for district

courts sitting in diversity to apply federal law in determining the mer-

its of a motion pursuant to Rule 59(a) for a new trial based upon the

alleged excessiveness of the jury's verdict. See Johnson v. Parrish,

827 F.2d 988, 991 (4th Cir. 1987). Specifically, in our circuit prior to

Gasperini, a district court was required to set aside a jury's verdict as

excessive "even when such a verdict is supported by substantial evi-

dence `if [it] is of the opinion that the verdict is against the clear

weight of the evidence, or is based upon evidence which is false, or

will result in a miscarriage of justice.'" Johnson, 827 F.2d at 991

(quoting Aetna Cas. & Sur. Co. v. Yeatts, 122 F.2d 350, 352 (4th Cir.

1941)).

Under the Supreme Court's mandate in Gasperini , the magistrate

judge was required to apply Pennsylvania law in determining whether

the jury's $1,000,000 compensatory damage award in favor of Konkel

was excessive. Under Pennsylvania law, a jury's damage award is

considered excessive if it does not fall "within the necessarily uncer-

tain limits of fair and reasonable compensation in the particular case"

or if the award "so shocks the sense of justice as to compel the con-

clusion that the jury [was] influenced by partiality, prejudice, mistake,

or corruption." Carminati v. Philadelphia Transp. Co., 176 A.2d 440,

445 (Pa. 1962).

Here, the magistrate judge applied federal law in testing the jury's

compensatory damage award for excessiveness, concluding that it

was not against the clear weight of the evidence and was not a miscar-

riage of justice. Such application was erroneous in light of Gasperini.

Because the magistrate judge applied the wrong standard in testing

the jury's compensatory damage award for excessiveness, a remand

is required unless we conclude that the magistrate judge would have

9

reached the same result applying Pennsylvania law as he did applying

federal law.

Applying federal law, the magistrate judge concluded that the

jury's compensatory damage award was not against the clear weight

of the evidence and was not so excessive as to be a miscarriage of jus-

tice. Because the federal excessiveness standard is analogous to the

Pennsylvania excessiveness standard, to say that the magistrate judge

would not have concluded that the jury's compensatory damage

award was "within the necessarily uncertain limits of fair and reason-

able compensation in the particular case" and was not so extravagant

that it "so shocks the sense of justice as to compel the conclusion that

the jury [was] influenced by partiality, prejudice, mistake, or corrup-

tion," Carminati, 176 A.2d at 445, would strain credulity. Therefore,

because the magistrate judge would have reached the same result

applying Pennsylvania law as he did applying federal law, a remand

is not only unwarranted but would be a waste of judicial resources.

Accordingly, we turn to consider whether the magistrate judge's

denial of Bob Evans' motion for a new trial based upon the alleged

excessiveness of the jury's compensatory damage award was an abuse

of discretion.

The Pennsylvania courts apply the following factors when deter-

mining whether a jury's damage award is excessive:"(1) the severity

of the injury; (2) whether the injury is demonstrated by objective

physical evidence or subjective evidence; (3) whether the injury is

permanent; (4) the plaintiff's ability to continue employment; (5) dis-

parity between the out of pocket expenses and the amount of the ver-

dict; and (6) damages plaintiff requested in his complaint." Stoughton

v. Kinzey, 445 A.2d 1240, 1242 (Pa. Super. 1982). As Pennsylvania

courts have recognized, because the circumstances of each case are

unique, only those factors relevant to the particular case at issue

should be considered. See Mineo v. Tancini, 502 A.2d 1300, 1305

(Pa. Super. 1986).

In this case, we believe the jury's compensatory damage award is

not "within the necessarily uncertain limits of fair and reasonable

compensation." Carminati, 176 A.2d at 445. Although the testimony

of Dr. Snow indicates that Konkel's likely permanent HVN was

caused by Bob Evans' conduct, Konkel produced no objective physi-

10

cal evidence concerning her injury, no evidence of lost wages, no evi-

dence of lost future earning capacity, no evidence of loss of future

employment, and no evidence of out-of-pocket expenses. When the

lack of this evidence is viewed in connection with Konkel's evidence

concerning the severity and permanency of her injury, it becomes evi-

dent that Pennsylvania courts would view this compensatory damage

award as excessive. See also Kemp v. Philadelphia Transp. Co., 361

A.2d 362, 364-66 (Pa. Super. 1976) (finding damage award of

$15,000 excessive where woman complained of knee and back pain

but there was no objective medical evidence, no evidence of perma-

nency, no evidence of lost earning capacity, and whose out-of-pocket

expense were only $535) (citing Meholiff v. River Transit Co., 20

A.2d 762, 764-65 (Pa. 1941) (reducing verdict when prediction of

permanency was based upon plaintiff's subjective claims of pain);

Brown v. Paxton, 2 A.2d 729, 730-31 (Pa. 1938) (reducing verdict

when evidence showed that plaintiff continued at same employment

with no lost earning capacity)). In our view, taking into account the

relevant factors under Pennsylvania law, an award of $25,000 is the

outermost award that could be sustained. We, therefore, reduce the

jury's compensatory damage award to $25,000 or grant a new trial

nisi remittitur at Konkel's option.

IV

Next, we turn to Bob Evans' allegation that the magistrate judge

erred in denying its motion for relief from judgment under Federal

Rule of Civil Procedure 60(b)(6) based upon jury misconduct.

According to Bob Evans, the jury's experiment using a cup not admit-

ted into evidence constituted jury misconduct.

This Court will not disturb a district court's denial of a Rule

60(b)(6) motion absent an abuse of discretion. See National Org. for

Women v. Operation Rescue, 47 F.3d 667, 669 (4th Cir. 1995). We

conclude that the magistrate judge did not abuse his discretion in

denying Bob Evans' Rule 60(b)(6) motion. Accordingly, we affirm on

this issue.

Experiments performed by juries, "which have the effect of putting

them in possession of evidence not offered at trial," constitute jury

misconduct requiring a new trial, unless no prejudice results. See

11

United States v. Beach, 296 F.2d 153, 158 (4th Cir. 1961). However,

jury experiments that are merely more critical examinations of exhib-

its than the examinations made during the trial are not objectionable.

See id. at 158-59.

The affidavit submitted by Bob Evans indicates that the jury per-

formed an experiment "to determine the amount of liquid that was in

the coffee pot" containing the packet of Eco-line Finish cleaning

detergent. (J.A. 566). In performing this experiment, the jury, accord-

ing to the affidavit, used the coffee pot and carafe, which were both

exhibits, and a cup, which had not been admitted into evidence. The

jury then "read the directions off the packet of detergent that was an

exhibit and found that the liquid solution swallowed by [Konkel] was

twelve times stronger than it was supposed to be." Id.

We conclude that the jury's experiment did not constitute jury mis-

conduct. The jury simply examined the coffee pot, carafe, and packet

of detergent that were admitted into evidence and applied the testi-

mony that coffee pots at Bob Evans were cleaned with one packet of

detergent, the testimony that the carafe was practically empty when

the waitress refilled it with water from the coffee pot, and the testi-

mony that the mug from which Konkel drank the soapy solution could

hold approximately one cup of liquid. Because the jury simply

applied the testimony concerning the size of Konkel's mug, the jury's

experiment did not place it in possession of evidence not presented at

trial. Accordingly, we conclude that the jury's experiment using a cup

not admitted into evidence did not constitute jury misconduct. We

therefore affirm the magistrate judge's denial of Bob Evans' Rule

60(b)(6) motion.5

_________________________________________________________________

5 To the extent that Konkel raises on cross-appeal that the magistrate

judge erred in denying her oral motion to add a request for punitive dam-

ages in her ad damnum clause and the magistrate judge erred in granting

Bob Evans' motion in limine to exclude evidence of punitive damages

because Konkel did not aver punitive damages in her complaint, we con-

clude that we need not address her claims because, as is obvious, the

facts in this case could not sustain an award for punitive damages under

Pennsylvania law, and Konkel has proffered no evidence in this regard.

See Feld v. Merriam, 485 A.2d 742, 747-48 (Pa. 1984) (noting that puni-

tive damages may be awarded in Pennsylvania for conduct that is "mali-

cious, wanton, reckless, willful, or oppressive") (internal quotation marks

omitted).

12

V

For the reasons stated above, we reduce the jury's compensatory

damage award to $25,000 or grant a new trial nisi remittitur at Kon-

kel's option. In accord with In re Board of County Supervisors, 143

F.3d 835, 842 (4th Cir. 1998), the new trial may be"`upon the whole

case'" or limited to the issue of damages alone, at the election of Kon-

kel. Id. (quoting Kennon v. Gilmer, 131 U.S. 22, 30 (1889)). In all

other respects, we affirm the judgment.

AFFIRMED IN PART, VACATED

IN PART, AND REMANDED

13