# Petition for Writ of Certiorari — Schwartz v. John Deere Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 490 U.S. 1035

## Text

88-1488 i TILED

+ + MpR 1
| JOSEPH F- SPANIOL, JR.
CLERK
No. att
IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1988

CHARLSA SCHWARTZ, Individually, and as
Administratrix of the Estate of HAROLD JOE
SCHWARTZ, JR., Deceased, and as Next Friend of
AIMEE NICOLE SCHWARTZ and AMANDA PAIGE
SCHWARTZ, Minors, Petitioners-Plaintiffs

vz.

JOHN DEERE COMPANY and DEERE & COMPANY,
Respondents-Defendants

Petition for Writ of Certiorari to the
United States Court of Appeals for the
Fifth Circuit and Appendix

RICHARD N. COUNTISS

LINDA TURLEY

RITA M. SWANSON

Law Offices of Windle Turley, P.C.
6440 North Central Expressway
1000 University Tower

Dallas, Texas 75206

214/691-4025

Attorneys for Petitioners-Plaintiffs

* >

Fort Worth Bret Printing Co., 610 South Jennings Avenue, Fort Worth, Texas 76104. Phone 817-332-4070

i
QUESTIONS PRESENTED

1. Whether the decision of the Court of Appeals for the Fifth
Circuit conflicts with Rule 703 of the Federal Rules of
Evidence?

2. Whether the decision of the Court of Appeals for the Fifth
Circuit conflicts with the Seventh Amendment of the
United States Constitution?

ii

PARTIES TO THE PROCEEDINGS BELOW

. Charlsa Schwartz Stuckey, Individually and as Administra-

trix of the Estate of Harold Joe Schwartz, Jr.

. Aimee Schwartz
. Amanda Schwartz
. Counsel: Law Offices of Windle Turley, P.C.

Dallas, Texas

. John Deere Company —
. Deere & Company

. Counsel: Carrington, Coleman, Sloman & Blumenthal,

Dallas, Texas

ill a

TABLE OF CONTENTS

Page
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Constitutional Provisions and Rules...................0.. cee eee eens 2
Statement of the Case............. UCL cae ktornestwaakeeaseece ai 2
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Fifth Circuit Order Overruling Motion for Rehearing........... D-1
Fifth Circuit Clarification of Opinion ....................... eee ee E-1
a aa da dis sade dw wabawenn F-1
District Court Order Overruling Motion for New Trial .......... G-1
District Court Jury Instructions and Verdict .................... H-1

Testimonial Excerpts—Expert Witness ............... earaacke ts I-1

iv
TABLE OF AUTHORITIES
Cases

Atlantic and Gulf Stevedores, Inc. v. Ellerman Lines,
Eg Se roe A eickdnachhdcdiddtensadsacssnnsncaeae

Burk Royalty Co. v. Walls, 616 S.W.2d 911 (Tex. 1981)......
Chicago, B. & Q. R. Co. v. City of Chicago, 166 U.S. 226

DeLaCruz v. Atchison, Topeka & Santa Fe Ry. Co., 405
F.2d 459 (5th Cir. 1968), cert. denied, 395 U.S. 908 (1969)

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)..........

Garcia v. Murphy Pacific Marine Salvagi ng Co., 476 F.2d
ee EEE sta iscuikasnschecksbendarempenssodukaaseds

Home Insurance Co. of New York v. Tydal Co., 157 F.2d
EID MEN ood sina cankddnsbbakedeacnautnaadeasbemnesan

In Re Agent Orange Product Liability Litigation, 611
F.Supp 1223 (E.D.N.Y 1985), affd, 818 F.2d 187
I EE oo ick coi ie ccsaccebacdeinastnanebewiesabucanns

In Re Air Crash Disaster at New Orleans, La., 795 F.2d
I a ee a ae

In Re Japanese Electronic Products Antitrust Litigation,
723 F.2d 238 (3rd Cir. 1983), rev'd on other grounds sub.
nom., Matsushita Electronic Industries Co. v. Zenith
Ramis Corp., 473 U.S. STA (IBGE) «0.22 ccccsccscccadscessevee

Johnson v. Consolidated Rail Corp., 797 F.2d 1440
Ce NS IEE es adsadsbiaamlascddercuiibaldeasakhasssnesssec

Lewis v. Rego Co., 757 F.2d 66 (3rd Cir. 1985) ...............

Mannino v. International Manufacturing Co., 650 F.2d
SP GI MEN otncaa vans iondsitsemdensteqgeneurienanmde

Marks v. Pan American World Airways, Inc., 785 F.2d 539
SP MEE a lknknasndsdeddatnicsvhabans+Rasienaiadaeaenne

Shamrock Fuel & Oil Sales Co. v. Tunks, 416 S.W.2d 779
I a a a a

Smith v. Ford Motor Co., 626 F.2d 784 (10th Cir. 1980),
eurt. Genbed. 460 US. DRS CHBBAD ns ie caches cvdccccevescsaxas

Soden v. Freightliner Corp., 714 F.2d 498 (Sth Cir. 1983) ...

Page

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TABLE OF AUTHORITIES

Cases Page
Viterbo v. Dow Chemical Co., 826 F.2d 420 (5th Cir. 1987)........ ‘6
Wright v. State of Texas, 533 F.2d 185 (5th Cir. 1976) .............5 12

Constitution:

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Rule of Civil Procedure:

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Rule of Evidence:

I I eae eee 2,4, 5,6, 8,9
Statute:
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Secondary Authority:

3J. Weinstein & M. Berger, Weinstein’s Evidence (1988) ........5, 8

No. ae

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1988

CHARLSA SCHWARTZ, Individually, and as
Administratrix of the Estate of HAROLD JOE
SCHWARTZ, JR., Deceased, and as Next Friend of
AIMEE NICOLE SCHWARTZ and AMANDA PAIGE
SCHWARTZ, Minors, Petitioners-Plaintiffs

V0.

JOHN DEERE COMPANY and DEERE & COMPANY,
Respondents-Defendants

Petition for Writ of Certiorari to the

United States Court of Appeals
for the Fifth Circuit

REFERENCE TO OPINIONS BELOW

The unpublished opinion of the United States Court of
Appeals for the Fifth Circuit is reproduced in Appendix A.

The unpublished opinion of the United States District Court
for the Northern District of Texas is reproduced in Appendix B.

Other pertinent information is reproduced in the Appendix.

JURISDICTION

The judgment of the United States Court of Appeals was
entered on October 11, 1988. The Petition for Rehearing was
denied on December 1, 1988.

sieieiaciiniaaanaiaiaia tiie

2

The Supreme Court of the United States has jurisdiction to
grant this Petition and review the decision of the Court of
Appeals under 28 U.S.C. $1254 (1).

CONSTITUTIONAL PROVISIONS AND RULES

(1) Amendment VII, U.S. Constitution:
In Suits at common law, where the value in contro-
versy shall exceed twenty dollars, the right of trial by
jury shall be preserved, and no fact tried by a jury,
shall be otherwise reexamined in any Court of the
United States, than according to the rules of the com-
mon law.

(2) Rule 381(a), Federal Rules of Civil Procedure:
(a) Right Preserved. The right of trial-by jury as
declared by the Seventh Amendment to the Consti-
tution or as given by a statute of the United States
shall be preserved to the parties inviolate.

(3) Rule 703, Federal Rule of Evidence:
The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to the expert at or
before the hearing. If of a type reasonably relied upon
by experts in the particular field in forming opinions
or inferences upon the subject, the facts or data need
not be admissible in evidence.

STATEMENT OF THE CASE

In October of 1980, Joe Schwartz, a 29 year old Texas
farmer, was killed when he was pulled into the machinery of a
John Deere harvesting combine. (TR. Vol. 3, p. 79.) Mr.
Schwartz was probably attempting to unclog the “snap rolls”
at the front of the cornhead on the combine, while the machine
was running. (TR. Vol. 3, pp. 105, 160.) His body became
entangled in the snap rolls and one leg was amputated and the
second left hanging by tissue. Eventually freed from the
machine by the Jaws of Life, Mr. Schwartz died on the way to

y 4
0

the hospital from massive blood loss. (TR. Vol. 3,
pp. 278-9.)

John Deere had been aware of the hazard to farmers from
the design of the snap rolls for at least 20 years and possibly 47
years. (TR. Vol. 3, pp. 88, 107.) The defect existed in an earlier
machine (TR. Vol. 3, p. 107), a John Deere product safety
group member acknowledged the danger in a published article
(TR. Vol. 3, p. 107), and John Deere admits that the snap rolls
danger is a leading cause of serious injuries during harvest.
(TR. Vol. 3, p. 114.)

Sinee 1941, John Deere has owned the patent to an auto-
matic cutoff switch that would eliminate the snap roll hazard.
(TR. Vol. 3, p. 182.) Deere uses the switch, costing $15.00, on
other equipment such as lawnmowers and garden tractors,
but chose not to provide protection for farmers like Mr.
Schwartz. (TR. Vol. 3, pp. 123, 132, 137.)

Invoking diversity jurisdiction, Mr. Schwartz’ widow and
two daughters sued John Deere and Deere & Company under
theories of products liability as developed in $402A of the
Restatement (2d) of Torts, part of the substantive law of
Texas. Shamrock Fuel Oil & Sales Co. v. Tunks, 416 S.W.2d
779 (Tex. 1967). They presented the evidence outlined above,
and other evidence, in support of liability, which is not in issue
here.

The Schwartz family established its pecuniary loss by
undisputed and uncontroverted evidence primarily from an
expert witness. Relying upon facts and data commonly relied
on by economists (App. pp. I-1—I-4), Dr. Everett Dillman, a
retired economics professor, testified that Mr. Schwartz’
future lost earning capacity was in excess of $1.5 million dol--
lars. (App. p. 1-8.) There was also evidence of other pecuniary
and non-pecuniary damages from other witnesses. (TR. Vol.
3, p. 223; Vol. 4, pp. 253-61, 282-303. )

From the evidence, the jury found that the combine was
defectively designed and that the defect was a producing

4

cause of Mr. Schwartz’ injuries. The jury also found that Mr.
Schwartz was contributorily negligent, and assessed 70% of
the fault to John Deere and 30% to Mr. Schwartz. (App. p. H-
11.)

The jury awarded to the family $150,000 in pecuniary dam-
ages from the date of death until trial and $1.5 million in
future pecuniary damages. It also awarded $1 million in non-
pecuniary damages and $100,000 to Mr. Schwartz’ estate for
his pain and suffering before he died. (App. pp. H-12—H-13.)

The jury then found that Deere acted with conscious indif-
ference to the rights and welfare of users of the combine and
awarded $1.5 million in exemplary damages. (App. p. H-15.)

The trial court took away the exemplary damage award
(App. pp. B-4-—B-5) but rendered judgment in favor of the
Schwartz family for the remaining damages, totaling
$1,925,000 plus interest after the 30% contributory negligence
reduction. (App. p. F-4.)

The Fifth Circuit affirmed the liability portion of the judg-
ment, the denial of punitive damages, and the pain and suffer-
ing award to Mr. Schwartz’ estate. (App. p. A-6.) It severed,
reversed and remanded for new trial the pecuniary damages
because it believed them to be speculative, and the non-
pecuniary damages because it feared the jury might be con-
fused about the differences between pecuniary and non-
pecuniary damages. (App. pp. A-3-A-6.) The Schwartz’
motion for rehearing was overruled. (App. p. D-1.)

REASONS FOR GRANTING THE WRIT

1. The Fifth Circuit’s Decision Violates The Letter and The
Spirit of Federal Rule of Evidence 703.

A. The Issue Is Important.

The issue in this case is the extent to which U.S. courts can,
or must, evaluate the information upon which an expert bases
an opinion. Is Rule 703 to be construed as written, to mean

5

experts can use the data relied on by other experts in the field
as a basis for opinion testimony?

The issue is important nationally because expert opinion
evidence is used in a high percentage of cases tried in U.S.
District Courts, the various courts are not uniform in their
handling of the evidence, and the lower courts need instruc-
tion and guidance on the meaning of Fed. R. Evid. 703. The
issue is important to the litigants in this case because the Fifth
Circuit erroneously rejected as speculative the expert testi-
mony that was the basis for Petitioners’ pecuniary damages
and reversed a judment favorable to Petitioners—although the
evidence given by the expert witness was undisputed, admit-
ted without objection and based upon information relied upon
by experts in the field. (App. pp. I-1-I-5.)

B. The Circuits Are in Conflict.

Two views have developed on the extent to which a court
can or must test the basis of an expert’s opinion. Character-
ized as liberal and conservative views by various sources, 3 J.
Weinstein & M. Berger, Weinstein’s Evidence © 703[{03] pp.
7035-15-33 (1988) [hereinafter Weinstein’s Evidence]; In Re
Agent Orange Product Liability Litigation, 611 F.Supp. 1223,
1245-45 (E.D.N.Y. 1985), aff'd, 818 F.2d 187 (2d. Cir. 1987); it
would be more accurate to classify the approaches as
restrained and activist. Thus, according proper deference to
the literal wording of Rule 703, and eschewing judicial anno-
tation, are the 3rd, 6th, 7th and 10th Circuits. Jn Re J apanese
Electronic Products Antitrust Litigation, 723 F.2d 238 (3rd
Cir. 1983), rev'd on other grounds sub nom., Matsushita Elec-
tronic Industries Co. v. Zenith Radio Corp., 475 U.S. 574,
(1986); Lewis v. Rego Co., 757 F.2d 66, 74 (3rd Cir. 1985); Man-
nino v. International Manufacturing Co., 650 F.2d 846, 851
(6th Cir. 1981); Johnson v. Consolidated Rail Corp., 797 F.2d
1440, 1446-47 (7th Cir. 1986); Smith v. Ford Motor Co., 626
F.2d 784, 793 (10th Cir. 1980), cert. denied 450 U.S. 918 (1981).

6

Most instructive on the restrained approach is the Third
Circuit decision in Jn Re Japanese Electronic Products Anti-
trust Litigation, supra. The trial court had undertaken its
own investigation of the reliability of the information upon
which the experts relied, ignoring evidence from experts that
detailed acceptable information. Rejecting that role for the
judiciary, the Third Circuit pointed out that “the proper
inquiry is not what the court deems reliable but what experts
in the relevant discipline deem it to be?” 723 F.2d at 276-277.
For that reason, “the trial judge misapplied Rule 703 in con-
cluding that he, not the experts in the field, was the source of
information about reasonable reliance.” Jd. at 280.

As the Tenth Circuit pointed out in Smith v. Ford Motor
Co., supra at 793, the burden of exploring the underpinnings
of an expert’s testimony is, under our adversary system,
“squarely on the shoulders of opposing counsel’s cross-
examination.”

In contrast, the Fifth Circuit has completely re-written
Rule 703 by judicial fiat. See, e.g., Viterbo v. Dow Chemical
Co., 826 F.2d 420, 422-23 (5th Cir. 1987); In Re Air Crash
Disaster at New Orleans, La., 795 F.2d 1230, 1233-35 (5th Cir.
1986); and Marks v. Pan American World Airways, Inc., 785
F.2d 539, 542 (5th Cir. 1986). Instead of determining whether
the opinion is based on data used by the experts in the field,
the Fifth Circuit applies its own subjective credibility test.
Thus, in Marks, the Court found fault with an expert econo-
mist’s conclusion because he had not considered certain items
the Court thought important, yet there is no indication that
the Court tried to find out whether the economist’s approach
was considered sound by other expert economists.

Perhaps best illustrative of the Fifth Circuit’s view is Jn Re
Air Crash Disaster at New Orleans, La., supra at 1233-34.
Although purporting to give deference to the trial court’s dis-
cretion in determining admissibility of evidence, the Court
makes it clear that it will impose subjective admissibility stan-
dards on expert testimony — standards that are not in the

(

Rules, not in the case law, and unknown until formulated by
the Fifth Circuit, on a case-by-case basis. Soden v. Freight-
liner Corp., 714 F.2d 498, 503 (5th Cir. 1983). Specifically, in
the New Orleans case, the Court suggested the trial judge
should gauge admissibility by, among other things, the extent
to which a witness had submitted his or her opinions “to a
refereed journal” and by the number of times a witness has
testified. 795 F.2d at 1234. (Contrary to logic, the more a wit-
ness testifies, the less qualified he is to testify, in the Fifth Cir-
cuit’s eyes. )

In this case, the Fifth Circuit took the same approach, sug-
gesting that the expert should have based his opinion of future
earning capacity on actual earnings, instead of earning ability,
and should have gathered more information in Mr. Schwartz’
home town. (App. pp. A-4—A-6.) The Court made no attempt
to determine whether the base it wants is economically sound
or acceptable to and relied on by-economists, who know far
more about earning capacity than the Fifth Circuit.

C. The Fifth Circuit Is Wrong. _

Two facts illustrate the invalidity of the Fifth Circuit’s
approach. First, by imposing a subjective standard that
allows the appellate court to decide, after trial and by its own
impressions, whether an expert witness can testify, it applies
an impossible review standard to trial judges and trial law-
yers. How good is good enough? Specifically, how many
“refereed articles” must the witness have written? How many
times can a witness testify before he or she must stay away
from the courthouse for an as yet unknown length of time?
(And, does it matter which side the witness testifies for?)

Specifically, in this case, must an expert base an opinion of
lost earnings solely on past earnings, instead of earning capac-
ity? That is certainly what the Fifth Circuit suggests. Yet, if
that is the Rule, this family would not be entitled to recover
any lost earnings for Joe Schwartz’ death, because he had
been losing money in his farming operation for several years.

8

This new rule by the Fifth Circuit would require an economist
to assume that, economics aside, a well-educated and ambi-
tious young farmer would not have enough sense to abandon a
losing situation and get into a profitable one at some point in
his future.

Second, by its subjective, case-by-case approach, the Fifth
Circuit is assuming a fact finding role, often without any evi-
dence to support its finding. The only inquiry under Rule 703
is whether the economist relied upon the kind of data econo-
mists use. In this case, the economist said he did and John
Deere did not object either to his expert status or to his opin-
ion and offered nothing to dispute the validity of the bases for
his opinion. Yet, the Fifth Circuit, with no evidentiary sup-
port, finds that the economist used improper data.

Implicit throughout the Fifth Circuit’s opinions is its view
that it knows better than the expert in the field what an
expert must rely on in formulating an opinion. One of the
defects in that view is summarized by Weinstein, as follows:

The authors have found that a more liberal view can
work quite well in practice. . . . And, in jury cases, when
the matter is brought to the jurors’ attention by a proper
instruction, they show a full sensitivity to the problem —
in fact often discounting the expert’s opinion too much
when it is based on hearsay or secondary evidence of doc-
uments or the like. We ought not assume the jurors are
less intelligent or alert than lawyers or judges. And we
ought not inhibit experts-from giving us as much aid as
they can. (Footnotes omitted. )

Weinstein’s Evidence, supra, at §703(03], p. 703-29.

The Rule is clear and precise: an expert witness is permit-
ted to base an expert opinion on facts or data of a type reason-
ably relied on by experts in the field. If the Rule is applied as
written, the trial judge has an exact guideline for resolving
challenges to an expert witness. If the Rule is applied as sug-
gested by the Fifth Circuit, however, there are no fixed guide-
lines. When the case reaches the Fifth Circuit, it reviews the

9

facts and data upon which the witness relied and reviews the
background of the witness, then tells the trial court whether
the witness should have testified. The Fifth Circuit’s subjec-
tive, case-by-case approach is wrong because it violates Rule
703 and it is wrong because it is poor judicial policy. This Court
should resolve the conflicts and emphasize the correct policy,
as it is stated in the Rule.

2. The Fifth Circuit’s Decision Violates the Seventh
Amendment.

The Seventh Amendment to the U. S. Constitution forbids
re-examination of facts found by a jury other than according to
the rules of common law. Under that mandate, the U.S.
Supreme Court has continually refused to allow U.S. courts,
trial and appellate, to redetermine facts found by a jury on
sufficient evidence. Chicago, B. & Q. R. Co. v. City of Chi-
cago, 166 U.S. 226 (1897); Atlantic and Gulf Stevedores, Inc.
v. Ellerman Lines, Ltd., 369 U.S. 355 (1962).

The Fifth Circuit acknowledges the scope and validity of
the prohibition, Garcia v. Murphy Pacific Marine Salvaging
Co., 476 F.2d 303 (5th Cir. 1973); Home Insurance Co. of New
York v. Tydal Co., 157 F.2d 851 (5th Cir. 1946), but did not fol-
low the constitutional mandate in this case. The Court vio-
lated the Constitution at least four times.

A. The Pecuniary Loss Findings.

The discussion under point 1, supra, outlines the Fifth Cir-
cuit’s treatment of the undisputed evidence that supports the
jury’s finding of damages for the pecuniary losses suffered by
the Schwartz family. Certainly the Fifth Circuit’s refusal to
acknowledge the validity of the supporting evidence is a direct
violation of the Seventh Amendment. Under the guise of dis-
counting the basis for the supporting evidence, the Fifth Cir-
cuit has reexamined the evidence and set aside facts found by
the jury on undisputed evidence.

10

B. The Exemplary Damages Findings.

Relying on the evidence outlined in the Statement, supra,
and other evidence, the jury found that John Deere acted
“with conscious indifference to the rights and welfare” of Joe
Schwartz. It assessed exemplary damages of 1.5 million dol-
lars. The District Court took away that award because it erro-
neously believed the Schwartz family “needed to show [and
did not] that Deere actually knew of the increased peril of
operating the combine without a cutoff switch and consciously
chose to ignore the risk” (App. p. B-4.)

A majority of the Fifth Circuit panel followed the trial
court’s lead, holding that the findings could not be honored
because “there are other explanations for Deere’s failure to
install the [cutoff] switch other than indifference.’ (App. p. A-
OQ) oe

Dissenting, Judge Johnson pointed out that the Fifth Cir-
cuit was doing exactly what it cannot do, in setting aside fac-
tual findings that are supported by ample evidence. (App.
p. A-7.) Judge Johnson is correct.

The Texas law of exemplary damages upon which the Fifth
Circuit must rely is set out in Burk Royalty Co. v. Walls, 616
S.W.2d 911 (Tex. 1981). In that case, the Texas Supreme Court
carefully crafted the two elements of gross negligence upon
which exemplary damages in Texas must rest. Those elements
are (1) an entire want of care, which would (2) raise the belief
that the act or omission complained of was the result of con-
scious indifference to the Tights or welfare of the person
affected by it. 616 S.W.2d at 920.

The elements are supported by evidence in this case that
Deere had specific knowledge at least since the 1950s of the
risks of injury and death associated with the defective com-
bine and had acknowledged the danger in a published article,
that Deere knew the user was not aware of the danger, that
Deere knew how to alleviate the danger and had done so on
other equipment and that Deere owned the patent to a cutoff

11

switch that could, at a cost of $15.00, eliminate the danger.
(TR. Vol. 3, pp. 88-137.) Thus, Deere knew of the exact dan-
ger, knew that the user was not aware of it, knew how to elim-
inate the danger, and could have done so for $15.00 per
combine.

It is a direct violation of the Seventh Amendment to hold, as
the lower courts have under those facts, that the summarized
evidence will not allow a jury to conclude that Deere had dem-
onstrated an entire want of care, raising a belief that it was
consciously indifferent to the rights of Joe Schwartz.

The Fifth Circuit’s rationale that there were “other expla-
nations” for. Deere’s failure to install the cutoff switch is puz-
zling. There are always “other explanations” for incriminating
conduct; that is how the adversary system functions. But,
when there are other explanations, the jury, not two appellate
judges, must decide whether Deere failed to act for a good
reason or because of conscious indifference.

No complicated or convaluted arguments are necessary on
this matter. The Fifth Circuit was required to apply Texas
substantive law in this diversity case. Erie Railroad Com-
pany v. Tompkins, 304 U.S. 64 (1938). Texas substantive law
establishes two elements of gross negligence and allows a jury
to assess exemplary damages if it finds those elements. Burk
Royalty Co. v. Walls, supra. The Schwartz family introduced
evidence in support of the elements and John Deere
attempted to explain away its behavior. The jury believed the
Schwartz family’s evidence and did not believe John Deere’s
evidence. To this point, no one who has worked on this case —
Deere, the District Court, or the Fifth Circuit —has cited one
authority, case, statute, or constitutional provision that vali-
dates the refusal of the lower courts to give the jury verdict
the constitutional shield to which it is entitled.

In order to exemplify the importance of the Seventh
Amendment, and to remind the lower courts that they cannot
indiscriminantly ignore the jury, this Court should correct the
error.

12

C. The Non-Pecuniary Damages.

The next two Seventh Amendment violations by the Fifth
Circuit are, perhaps, the best examples of the lack of impor-
tance it attaches to the Amendment and the jury system. In
addition to pecuniary damages, the jury was asked to assess
damages for two kinds of non-pecuniary loss incurred by the
Schwartz family: (1) mental anguish and (2) loss of companion-
ship and society. The trial court carefully instructed the jury
on the elements of pecuniary loss, none of which duplicate
either mental anguish or loss of companionship. (App. p. H-
10.)

The Fifth Circuit does not suggest that the awards for men-
tal anguish and loss of companionship are excessive, or that
they are not supported by the evidence or that they are not
proper awards under Texas law. However, it takes those
awards away from the Schwartz family and orders them re-
tried because “in the minds of the jurors there is likely to be
confusion between the pecuniary loss of care, nurture, guid-
ance and advice and the non-pecuniary loss of companionship,”
(App. p. A-6.)

The holding assumes, with nothing to support the assump-
tion, that the jury will do the very thing the trial judge tells
them they should not do. They were told, and will again be
instructed, that pecuniary loss includes certain listed ele-
ments “and none other.” The Fifth Circuit’s rationalization,
danger of confusion, can rest only on the Fifth Circuit’s belief
that the jury will not follow the instructions it is given —and
that assumption without supporting evidence undermines the
entire jury system and is contrary to the Fifth Circuit’s own
decisions. Wright v. State of Texas, 533 F.2d 185 (5th Cir.,
1976); DeLaUruz v. Atchison, Topeka & Santa Fe Railway
Co., 405 F.2d 459 (5th Cir. 1968), cert. denied, 395 U.S. 908
(1969).

If the Fifth Circuit were truly concerned about duplication,
it could have solved the problem by affirming all of the non-

15

pecuniary awards and telling the judge to instruct the jury
that it should not include in its pecuniary awards any sum for
loss of companionship.

Finally, Petitioners do not know why the $350,000 mental
anguish award was taken away from them, because the Fifth
Circuit gives no reason for doing so. Unlike the vacating of the
loss of companionship award, the Court does not suggest that
there is danger of confusion. Nor does it hold the award exces-
sive, or find fault with the evidence or with any of the parties.
It does not even use the correct damage figure when discuss-
ing the non-pecuniary awards. (App. p. A-6.) It simply
reverses for a new trial and includes the mental anguish
award in its sweeping action. Petitioners, the jurors, the trial
judge and the legal system are, under the United States Con-
stitution, entitled to better treatment.

CONCLUSION

Petitioners have suffered a terrible loss. That fact does not,
of course, entitle them to a review of their case by the U.S.
Supreme Court. When, however, the Rules of Evidence are
rewritten by an appeliate court in a manner that conflicts with
the Rules and decisions of other appellate courts, when jury
findings supported by evidence are set aside in derogation of
the Constitution and when $350,000 is taken from a litigant
with no explanation, then the Supreme Court should exercise
its discretion and grant this petition. It can then set the policy
that will guide the use of the Rules of Evidence, it can remind
the lower courts that the Constitution must be followed, and
in the process, it can correct an injustice.

—_— a

14

For the foregoing reasons, Petitioners respectfully request
the Supreme Court to grant this Petition for Writ of
Certiorari.

Respectfully submitted,

LAW OFFICES OF
_WINDLE TURLEY, P.C.

Richard N. Countiss
State Bar No. 04887000

Linda Turley
State Bar No. 20303800

Rita M. Swanson
State Bar No. 19555525

6440 North Central Expressway ~
1000 University Tower

Dallas, Texas 75206

214/691-4025

Attorneys for Petitioners-
Plaintiffs |

A-1]

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 87-1934

CHARLSA SCHWARTZ, Individually and as
Administratrix of the Estate of
HAROLD JOE SCHWARTZ, JR., Deceased, and as Next
Friend of AIMEE NICOLE SCHWARTZ and
AMANDA PAIGE SCHWARTZ,
Minors, Plaintiffs-Appellees, Cross-Appellants,

V.

JOHN DEERE CO. and DEERE & COMPANY,
Defendants-Appellants, Cross-Appellees.

Appeal from the United States District Court
for the Northern District of Texas
(CA3-86-0893-H)

(October 11, 1988)
sefore REAVLEY, JOHNSON and JONES, Circuit Judges.

REAVLEY, Circuit Judge:*

The judgment of $100,000 because of pain and suffering of
Joe Schwartz is affirmed. The lability of Deere for compen-
satory damages, excluding punitive damages, is approved. A
new trial is ordered to determine the pecuniary and non-
pecuniary damages suffered by Charlsa Schwartz and her two
daughters. Our reasons are as follows:

‘Local Rule 47.5 provides: “The publication of opinions that have no prece-

dential value and merely decide particular cases on the basis of well-settled
principles of law imposes needless expense on the public and burdens on
the legal profession.’ Pursuant to that Rule, the court has determined that
this opinion should not be published.

A-2

1. The district court’s admission of evidence of other acci-
dents involving cornpickers, a machine having some common
functions with a cornhead machine and presenting comparable
dangers, tending to prove Deere’s awareness of a hazard
(through never denied) was within that court’s discretion. See
Jones v. Laughlin Steele Corp. v. Matherne, 348 F.2d 394, 400
(5th Cir. 1965) (the trial court is given discretion in eviden-
tiary matters); McGonigal v. Gearhart Industries, Inc., No.
87-2587, slip op. at 5 (5th Cir. 1988) (the requirements of sim-
ilarity for introducing evidence of other accidents to show
defendant’s awareness of a hazard have been relaxed, citing
Jackson v. Firestone Tire & Rubber Co., 788 F.2d 1070, 1083
(5th Cir. 1986)).

2. The district court also correctly granted Deere’s motion
for judgment n.o.v. on the issue of conscious indifference and
exemplary damages. Under the Texas law Charlsa Schwartz
must show by a preponderance of the evidence that Deere
exhibited conscious indifference toward the rights and welfare
of her husband. Burk Royalty Co. v. Walls, 616 S.W.2d 911,
922 (Tex. 1981). “In other words, the plaintiff must show that
the defendant knew about the peril, but his acts or omissions
demonstrated that he didn’t care”’ /d. The inquiry involves a
review of all the surrounding circumstances in determining
whether the requisite mental state is shown. Mawey v.
Freightliner Corp., 665 F.2d 1367, 1374 (5th Cir, 1982), later
app., 722 F.2d 1238 (5th Cir. 19%4).

The support for the finding must be found in the testimony
of John Sevart. Sevart testified that Deere could have fore-
seen the possibility that an operator could be pulled in while
the machines were turned on, and that there were alternative
safety measures available to Deere. Given the nnavoidable
dangers of the cornhead when powered by the combine,
Sevart testified that warnings alone provided inadequate pro-
tection and that the use of a cut-off switch was necessary.

Deere concedes that it was fully aware of the hazard. For
that reason warnings were placed on the machines and in the

|
|

A-3}

user manuals. The jury found the design of the combine detec-
tive because it lacked a cut-off switch. To fault Deere’s jude-
ment by the effect of that finding does not say that Deere was
consciously indifferent to the rights and welfare of users of the
products. To allow that inference would elevate all findings of
negligence or design defect to that of gross negligence. The
question is whether Deere was indifferent to the injuries that
might result from failure to install the switch.

In Burk Royalty, the Texas Supreme Court found gross
negligence on the part of Swetnam, a district superintendent
of the defendant company, whose responsibilities included
safety. The evidence showed that Swetnam had directed the
use of a particular dangerous method for pulling wet tubing
from an oil well without checking out compliance of company
safety procedures at the site. Safety measures were shown to
be casually followed throughout the district. In WMawey, the
Fifth Circuit reversed the district court's grant of a judgment
n.o.v. on an award of exemplary damages because it found evi-
dence of conscious indifference in Freightliner’s total failures
to conduct crash safety research, or run tests, or attempt
modifications before or after it became aware of the problem
of rupturing gas tanks. In addition, a representative of
Freightliner testified that a disabled truck with leaking,
ignited gas and trapped occupants posed no risk of harm to
justify a change in design.

It is the burden of the plaintiff to prove that a defendant did
not care about endangering people, although circumstances
usually have to be relied upon to make that proof. Deere’s con-
duct under the circumstances does not warrant an inference of
indifference or disregard of the problem of safety. The danger
Was recognized and a warning was posted on the machine. A
patent was obtained for a cut-off switch and Deere installed
the device in some of its products. Sevart testified that his
information was that Deere had field tested a machine with a
cut-off switch. He also conceded that safety devices which
prove to be nuisances to the user will not be effective. elated
to that is the testimony of Joe Schwartz's father, himself a

A-4

farmer, who explained that the only good way to clear a
clogged cornhead is while it is running. An extremely well
trained and experienced farmer and farm machine operator,
Joe Schwartz was either doing just that or, as Garcia specu-
lated, investigating a noise in the cornhead when this accident
occurred. Farmers who insist on that manner of operation will
not engage a second worker to accompany the machine or
refrain from overriding a cut-off switch. The point of this is
that there are other explanations for Deere’s failure to install
the switch other than indifference. It follows that mere evi-
dence of the failure to install could not support a finding of the
state of mind that does not care about the safety of operators.

5. The difficulty we find with the judgment is the $1,600,000
awarded for pecuniary loss. Pecuniary damages consist of the
dollars the deceased would have contributed to the widow and
two daughters if he had lived, plus the dollar value of services
and training, care and advice, that he would have contributed.
Future contributions must, of course, be discounted to pres-
ent value. Future circumstances are predictable to the degree
of probability only, and there is no precise dollar measure for
that which cannot be bought or sold. We know that there has
been a pecuniary loss to this widow and her children, and we
may accept the best evidence reasonably available on dollar
amounts, leaving the fact finder’s decision to reasonable infer-
ence. That decision must, however, be based on the facts of
the particular case and be reasonably related to future expec-
tations. It should be more than mere guess or speculation.

The facts to support this award are very limited: Joe
Schwartz was a good father and husband. He sometimes
helped around the house. He did not like to clean but once in a
while would offer to do so. He mowed the yard and helped put
up corn and peas from the garden. He had lost more money
than he had made during his ten years of farming, but farming
had been his training and he still intended to make it as a
farmer. The jury was certainly entitled to believe that, by
farming or some other means, Joe Schwartz would have sup-
ported his family. The question is the material extent of that

A-5

support. The investment of $1,600,000 at & percent interest
would produce $128,000 in one year, far more than the
Schwartz family could reasonably expect.

We may assume the admissibility of Dr. Dillman’s testi-
mony, and Deere waived no objection to its weight or suffi-
ciency by not objecting to it. Its weight, however, contributed
no proper support for the determination of these damages,
and indeed probably misled the jury. Dr. Dillman used census
data for the average earnings of all American males with five
or more years of college and computed the value of Joe
Schwartz's future earnings through his 70th birthday at
$1,515,407. The relationship of the earnings of American
males with graduate level educations to the likely earnings of
Joe Schwartz is tenuous at best. But the jury apparently used
Dillman’s total for the former to make its finding for Schwartz,
ignoring the difference between the earning potential and con-
tribution to the family.

The Texas courts hold that the pecuniary loss in a wrongful
death case is calculated primarily upon the element of a pro-
jection into the future of the decedent's past earnings. In all
cases the award must bear some ascertainable relation to the
pecuniary benefits which the decedent’s wife and children
might reasonably have expected to receive had the wrongful
death not occurred. Dover Corp. v. Perez, 5837 S.W.2d 761, 770
(Tex. Civ. App. — Corpus Christi 1979, writ ref'd n.r.e.); Hal-
liburton Company v. Olivas, 517 SW.2d 349, 354 (Tex. Civ.
App. — El Paso 1974, no writ); Simpson v. United States, 322
F.2d 68%, 691-92 (Sth Cir. 1963). The proof of earning capacity
must be evidence from which a jury may reasonably measure
in monetary terms that capacity, unless some reason is shown
for the failure to produce that evidence. See Bonney v. San
Antonio Transit Co., 325 S.W.2d 117, 121 (Tex. 1959). There
must be some basis in the evidence. Detar Hosp., Inc. v.
Estrada, 694 S.W.2d 359, 364 (Tex. App.—Corpus Christi 1985,
no writ).

A-6

There is no evidence in this record of the lost contributions
to this family fer their support, not even information of earn-
ings of people in Hale Center or the Panhandle area doing jobs
or in businesses Joe Schwartz might have filled. We know only
that the deceased was a farmer, of fine character but losing
money. All the jury could do was guess. Likewise, we cannot
revise that award, because we would be only guessing too.

4. We will not decide the issue of the excessiveness of the
$600,000 award of non-pecuniary damages, because we do not
believe a new trial should be limited to pecuniary damages
alone. In the minds of the jurors there is likely to be confusion
between the pecuniary loss of care, nurture, guidance and
advice and the non-pecuniary loss of companionship. The same
jury should make these determinations to avoid duplication of
damages. An issue to be retried must be so distinct and sepa-
rable from others that a trial of it alone may be had without
injustice. 11 C. Wright & A. Miller, Federal Practice and Pro-
cedure: Civil § 2814 at 93 (1973).

The case is remanded for new trial of the damages issues
under the wrongful death claims. Liability of Deere, the
denial of punitive damages and the judgment for pain and suf-
fering of Joe Schwartz are all affirmed.

AFFIRMED in part, VACATED in part. REMAN DED.

Johnson, J., Circuit Judge dissenting.

Plaintiff Charsla Schwartz brought the instant products lia-
bility action against defendant John Deere & Company
(Deere) after her husband, farmer Joe Schwartz, was killed
when his body became tangled in the “snap rolls” of a corn-
head and combine munufactured by Deere. Mr. Schwartz had
been pulled into the machinery while trying to unclog the snap
rolls which are able to, and do, pull corn stalks through the
John Deere machine faster than a man can release the stalks.
The jury found Deere liable for the death of Joe Schwartz and
awarded damages to Charsla Schwartz and her two young
daughters. The above damage award included $1,500,000 in

AT

exemplary damages based on a tinding by the jury of gross
negligence on the part of Deere. The district court then
granted Deere’s motion for judgment notwithstanding the
verdict on the finding of gross negligence and also set aside
the award of punitive damages. The majority of the panel
today concludes that the jury's finding of gross negligence and
subsequent award of exemplary damages should be set aside.
Contrary to the majority, | do not perceive the instant case to
be one of those rare instances Wherein the Court is permitted
to set aside the factual findings of a jury. Accordingly, [ dis-
sent from that portion of the majority opinion which affirms
the district court on this issue.

Initially, it must be recognized that the standard by which a
district court determines whether to grant a judgment n.o.\.
is an especially stringent one so as to protect the integrity of
the factfinding process. A district court is prohibited from
granting a motion for judgment n.o.v. unless “the evidence
points so strongly and overwhelmingly in favor of the moving
party that reasonable persons could not arrive at a contrary
verdict?” Anight v. Texaco, Lic., T86 F.2d 1296, 1298 (Sth Cir.
1986). Further, in making the above determination, a district
court is to consider all of the evidence presented to the jury in
the light most favorable to the nonmoving party. Boesng Com-
pany v. Shipman, AL F.2d 365, 574 (th Cir, 1969) (en bane).
If the evidence is such that reasonable and fair-minded per-
sons in the exercise of impartial judgment might reach differ-
ent conclusions, the motion for judgment n.o.v. should be
denied. /d.

To establish gross negligence on the part of a defendant in a
products liability action, Texas law provides that a plaintiff
must show by a preponderance of the evidence that the defen-
dant exhibited a conscious indifference toward the rights and
welfare of the purchaser or consumer. Burk Royalty Co. v.
Walls, 616 S.W.2d 911, 922 (Tex. 1981). As the majority cor-
rectly states, the above showing by the plaintiff includes
establishing that the “defendant knew about the peril, but his
acts or omissions demonstrated that he didn't care!’ /d. In the

A-8

instant case, the jury concluded, after evaluating the evidence
presented at trial, that the combine which was manufactured
by Deere and which Joe Schwartz was operating at the time of
his death was defectively designed. The jury further found
that Deere’s course of conduct in this regard reflected con-
scious indifference to the rights and welfare of purchasers and
users of the combine. As I perceive the evidence to be alto-
gether sufficient to enable reasonable and fair-minded jurors
to reach the above findings, the majority is believed to be in
error in failing to respect the findings of the jury.

Specifically, evidence was presented to the jury that Deere
possessed knowledge of the risk of serious injury and death
associated with operating the defective combine as early as
the 1950s. Deere apparently attempted to alleviate the risk by
placing warnings on the machinery to the effect that the users
should not attempt the unclogging operation while the
machine was still running. John Sevart, a licensed profes-
sional engineer, testified that the written warnings alone were
not adequate protection against the risks associated with
operating the combine. Sevart further stated that alternative
safety devices, such as a strategically located cut-off switch,
could be installed on the combine to protect against serious
injury and death. Significantly, Deere had installed such a cut-
off switch in its lawnmowers and garden tractors to protect
against similar accidents by consumers. Deere in fact actually
owned the patent for the cut-off safety device. Finally, the fol-
lowing statement in a published paper by the Chairman of
John Deere’s Product Safety Group in 1968 established
Deere’s knowledge of the risk of injury in operating the com-
bine and Deere’s knowledge that the risk was not fully appre-
ciated by the average farmer:

-_The man who hasn't lost an arm in a cornpicker hasn't
had the experience that tells him he can’t release the corn
stalk beiore his hand is pulled between the rolls.

Deere concedes that it was fully aware of the hazard that a
farmer might be pulled in the cornhesd while the machinery

ieadeieal

A-9

Was operating — the very hazard which eventually killed Joe
Schwartz. However, Deere offers as justification for its failure
to use cut-off switches on its combine to prevent such a hazard
the fact that farmers are likely to find cut-off switches too
cumbersome and thus, will manually disable such devices
which in turn decreases product safety. Deere’s justification
does no more than reflect a decision on the part of Deere to
elevate convenience over safety. In fact, Deere’s assertion
that a cut-off switch would be too cumbersome in operation
could have been correctly understood by the jury as a decision
by Deere not to install the cut-off switch which was motivated
by a concern relating to reduced sales of its combines because
of a perception by farmers that the Deere combine might be a
nuisance to operate with the cut-off switch. Surely, such an
inference as to Deere’s motivation could have been reached by
the jury on the basis of the evidence presented at trial. That
the switch might be a nuisance and might reduce the effective-
ness of the safety device does not excuse Deere’s failure to
incorporate the switch or some other device to reduce the dan-

ger in light of the long string of serious injuries resulting from

the operation of the combine.

The majority is concerned that to allow a finding of gross

negligence in the iftstant case would “elevate all findings of

negligence or design defect to that of gross negligence.” The
majority’s concern, however well-meant, is misplaced in the
instant case in view of the evidence presented to the jury. In
Mawey v. Freightliner, 722 F.2d 1238 (Sth Cir. 1984), this court
upheld a jury’s award of exemplary damages on facts which
revealed that the defendant failed to conduct safety research
or run tests and attempt modifications of a product design
after it became aware of the safety risk in the product. In the
instant case, Deere knew of the risk inherent in operating the
combine, attempted to alleviate that risk with written warn-
ings, but then failed to further modify the design of the com-
bine despite the fact that a cut-off switch would be likely to
reduce the risk of serious injury and death associated with
operation of the combine.

»

A-10

The majority is correct in stating that there may have been
other explanations for Deere’s failure to install the cut-off
switch on its combine other than indifference to the safety of
its consumers. Nevertheless, the jury chose to credit the
explanation that Deere was consciously indifferent to the wel-
fare of its purchasers. This may not be the only explanation
for Deere’s action, but it is cetainly one supported by the evi-
dence in this case. The majority’s decision today effectively
substitutes the court’s judgment for that of the jury by adopt-
ing a different explanation for Deere’s conduct. By doing so,
the majority disregards the deference which is, and which has
been, traditionally afforded to the findings of a jury in these
matters. Because sufficient evidence was presented to sup-
port the jury’s finding of gross negligence and award of exem-
plary damages, I would reverse the judgment of the district
court granting Deere’s motion for judgment n.o.v. on this
issue.

B-1

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

Nov. 10. 1987

CA-3-86-0893-H
CHARLSA SCHWARTZ, Individually and as
Administratrix of the Estate of
HAROLD JOE SCHWARTZ, JR., Deceased, and as Next
Friend of AIMEE NICOLE SCHWARTZ and
AMANDA PAIGE SCHWARTZ, Minors, Plaintiffs

¥.

JOHN DEERE COMPANY and
DEERE & COMPANY, Defendants

MEMORANDUM OPINION

Before the Court are a motion for new trial or for J.N.OV.,
filed August 31, 1987, on behalf of defendants, the response of
plaintiffs thereto, filed September il, 1987, and plaintiffs’ pro-
posed judgment.

This products liability case arose from the death of Harold
Joe Schwartz (“Schwartz”). The plaintiff, Charlsa Schwartz
Stuckey (“Stuckey”), brought this action as the surviving
spouse and Administratrix of the Estate of Harold Joe
Schwartz, and as Next Friend of Aimee Nicole Schwartz and
Amanda Paige Schwartz, minor children of the deceased. The
plaintiffs alleged that a combine and cornhead manufactured
by the defendants, John Deere and Company and Deere &
Company (“Deere”), were defective, and that the defects
were a producing cause of Schwartz’s injuries and death.
Plaintiffs alleged that the cornhead and combine were defec-

B-2
tive for lack of adequate warning, and that the combine was
defectively designed because it lacked a cut-off switch. Plain-
tiffs further alleged that with regard to the product defects
Deere acted with conscious indifference to the rights and wel-
fare of purchasers and users of the cornhead and combine.

A jury trial was held before Circuit Judge Robert M. Hill,
sitting by designation. The jury returned a verdict on August
17, 1987, finding that the combine was defectively designed
because it lacked a cut-off switch and that such defect was a
producing cause of Schwartz’s injuries, but that a lack of ade-
quate warning, if any, was not a producing cause of Schwartz's |
injuries. The jury found that Schwartz was contributorily |
negligent and that such negligence proximately caused 30@ of |
his injuries. The jury further found that Deere acted with con-
scious indifference to the rights and welfare of purchasers and
users of the combine. The jury awarded as damages for their
past and future pecuniary losses, $600,000 to Charlsa Stuckey,
and $525,000 each to Aimee and Amanda Schwartz. As dam-
ages for the past and future mental anguish suffered by plain-
tiffs, the jury awarded $400,000 to Charlsa Stuckey and
$50,000 each to Aimee and Amanda Schwartz. For their past
and future loss of companionship and society, the jury
awarded $200,000 to Charlsa Stuckey and $150,000 each to
Aimee and Amanda Schwartz. The jury awarded $100,000
damages for the conscious pain and suffering experienced by
Schwartz before his death as a result of his accident. Finally,
the jury assessed $1,500,000 against Deere as exemplary
damages.

Deere has moved for judgment notwithstanding the ver-
dict. Deere seeks to have the finding of conscious indifference
and the award of exemplary damages set aside as being
against the great weight of the evidence. Deere also contends
that there is no evidence of what financial support, if any,
Schwartz would have provided to his family had he lived.
Deere therefore moves that the jury’s verdict for pecuniary
loss be set aside, or alternatively, a new trial granted on the
issue. Deere also requests a remittitur of the amounts

|

B-:

awarded to Charlsa Stuckey for her past and future mental
anguish and loss of companionship so that Stuckey’s total
recovery for these elements of damages would be $250,000.
Alternatively, Deere requests a new trial on these damages.
Finally, Deere asks for a new trial on the issues of product
defect and exemplary damages on the ground that plaintiffs’
evidence of other accidents involving corn harvesting equip-
ment was erroneously admitted.

The Court has reviewed the parties’ motions and briefs as
well as the trial transcript. For the reasons set out below, the
Court denies defendants’ motion for new trial or j.n.o.v. in all
respects except as to exemplary damages. The Court wil!
enter judgment notwithstanding the jury’s verdict finding
conscious indifference on the part of Deere, and plaintiffs will
recover no exemplary damages. Judgment will be entered
pursuant to the jury’s verdict in all other respects. All of the
dollar amounts awarded by the jury will be reduced by 30% in
accordance with Mayo v. Tri-Bell Industries, Lic., TST F.2d
1007 (5th Cir. 1986), to account for the percentage of
Schwartz's injuries found to be proximately caused by
Schwartz's negligence.

The district court is prohibited from granting a motion for
j.n.o.v. unless “the evidence points so strongly and over-
Whelmingly in favor of the moving party that reasonable per-
sons could not arrive at a contrary verdict” Knight v. Texaco,
Inc., 786 F.2d 1296, 1298 (5th Cir. 1986); Boeing Co. +. Ship-
man, All f.2d 565, 374-75 (Sth Cir, 1969) (en banc). In making
such a determination, the court must consider ail of the evi-
dence presented to the jury in the light most favorable to the
nonmoving party. /d. Nevertheless, a mere scintilla of evi-
dence is not sufficient to support a jury verdict; there must be
a conflict in substantial evidence. Boeing, 411 F.2d at 374-75.

B-4

Exemplary Damages

The first issue on which defendants seek judgment n.o.Vv. is
the issue of exemplary damages. Texas law on gross negli-
gence and exemplary damages was most recently set forth in
Burke Royalty Co. v. Walls, 616 S.W.2d 911 (Tex. 1981). The
Texas Supreme Court stated:

What lifts ordinary negligence into gross negligence is
the mental attitude of the defendant; that is what justi-
fies the penal nature of the imposition of exemplary dam-
ages. The plaintiff must show that the defendant was
consciously, i.e., knowingly, indifferent to his rights, wel-
fare and safety. In other words, the plaintiff must show
that the defendant knew about the peril, but his acts or
omissions demonstrated that he didn’t care.

Id. at 922 (emphasis in original). The court went on to discuss

the type of evidence necessary to support a finding of con-

scious indifference:
{M Jany circumstances and elements may be considered in
determining whether an act constitutes gross negli-
gence. A mental state may be inferred from actions. All
actions or circumstances indicating a state of mind
amounting to a conscious indifference must be examined
in deciding if there is some evidence of gross negligence.

Id. Thus, Schwartz needed to show that Deere actually knew
of the increased peril of operating the combine without a cut-
off switch and consciously chose to ignore the risk. Although a
jury may infer a defendant’s actual knowledge of a risk and
conscious indifference to it by evaluating defendant’s acts or
omissions, in this case no evidence was presented from which
the jury could reasonably infer that Deere both knew and did
not care about any increased peril to combine operators that
would be caused by failure to install a cut-off switch. Thex#
simply was no evidence of any acts or omissions by Deere that
could reasonably give rise to an inference that Deere was con-
sciously indifferent to the rights and safety of people in the

field. Accordingly, with respect to exemplary damages, the
Court grants defendants’ motion for judgment n.o.v. The
jury’s finding of conscious indifference and award of exem-
plary damages will be set aside.

Pecuniary Damages

The Court disagrees, however, with defendants’ contention
that the jury’s finding of pecuniary loss is unsupported by the
evidence. The defendants contend that the jury’s award of
pecuniary damages is supported only by the testimony of
plaintiffs’ expert economic witness, Dr. Edward Dillman, and
that such testimony is without foundation and entitled to no
weight because it is not grounded in fact. Defendants cite the
court to two cases in which the Fifth Circuit invalidated or
affirmed the district court’s grant of j.n.o.v. invalidating Jury
awards for loss of inheritance under Louisiana law. See Ey-
mard « Pan American World Airways, Tie., T95 F.2d 1250
(Sth Cir. 1986); Marks ¢. Pan American World Airways, lie.,
785 F.2d 539 Sth Cir. 1986).

In order to establish loss of inheritance as an element of
damages, the plaintiffs in Byward and Marks needed to show
what portion of decedent’s income would have been saved and
eventually constituted plaintiffs’ inheritance from the dece-
dent. In Marks the court held that the testimony of plaintiffs’
expert economist Was too speculative to support the award.
Marks, 785 F.2d at 542. The economist based his analysis of
plaintiffs’ likely loss of inheritance on decedent’s income
stream of the past several vears as reflected in his tax returns.
Because the court recognized the inherent speculativeness of
an award for loss of inheritance, it searched for “evidence
which might reduce the speculative quality necessarily inher-
ent in the hope or expectation of a future inheritance.’ /d. The
court found no persuasive evidence of decedent’s probable
future work and investments plans and no evidence of “his
spending habits, commitments to savings plans, asset growth
plans or other estate building plans for the children, tax moti-
vated planning, or the probable effect of federal and state

B-6

estate or inheritance tax which might ultimately have to be
paid.” Id.

In Eymard the court likewise reversed a jury award of
damages for loss of inheritance because the expert economist’s
testimony was “completely airborn, premised as it was on
assumptions without basis in the real world of [the dece-
dents].” Eymard, 795 F.2d at 1233. The court found “the
assumptions of plaintiffs’ economist so abusive of the known
facts, and so removed from any area of demonstrated exper-
tise, as to provide no reasonable basis for calculating how
much of [decedent’s| income would have found its way into
assets or savings to be inherited by his children” /d. at 1255.
In reaching its decision, the court found the economist’s
assumptions that decedent’s salary would continue to grow at
8% per year over almost forty vears and that he would pay
only 5% of his income in taxes throughout his career to be
completely incredible and unsupported by the record. In addi-
tion, the court found the economist’s assumptions of dece-
dents’ savings plans to be completely unsupported by the
facts. The economist had no objective basis for his assump-
tions and had completely ignored available facts that the dece-
dents’ “disposition of income was idiosyncratic, and evidence
that suggested increasingly significant sums had been spent in
previous years on gambling junkets to Las Vegas” /d.

In the case at bar, plaintiffs’ expert witness, Dr. Dillman,
based his testimony on, among other things, Schwartz's age,
his education and his financial history. Dillman concluded from
those proven facts that the pecuniary loss that the Schwartz
family would suffer as a result of Schwartz’s death was best
measured by Schwartz's earning capacity rather than his his-
tory of farm earnings. Dillman testified that he prepared his
analysis by consulting federal government statistics on work
life earnings based on educational level. In addition to the tes-
timony of Dr. Dillman and in further support of his analysis,
plaintiff Charlsa Stuckey testified that she and Schwartz real-
ized that because farming was not going well economically,
Schwartz might have to switch from farming to another occu-

B-7

pation. The jury’s award approximates the amount of money
Dr. Dillman testified would have been provided by Joe
Schwartz for the support of his family.

Defendants contend that the testimony of Stuckey and Dill-
man is every bit as speculative as the evidence found to be too
speculative in Marks and Eymard. The court disagrees. Evi-
dence of Schwartz's farm income was in the record in the form
of testimony about past tax returns. Dr. Dillman testified that
he took those figures into account. Dr. Dillman’s conclusion
that Schwartz's pecuniary contribution to his family was bet-
ter measured by earning capacity than earnings history is
supported by plaintiff's testimony that she and Schwartz had
discussed the possible need for Schwartz to change to a new
profession and that Schwartz had indicated a willingness to do
so in order to support his family. Dillman’s computation of
Schwartz’s earning capacity was supported by Schwartz's
level of education and by the testimony of Stuckey and
Schwartz's father that Schwartz was a very bright, very capa-
ble young man.

The testimony of Dillman, Stuckey, and Schwartz’s father is
not too speculative to support the jury's verdict. Further-
more, none of their testimony contradicts any known facts as
was the case in Eymard. The jury could reasonably find from
the evidence presented that Schwartz either would have
achieved economic success as a farmer or would have changed
professions. The jury could reasonably find that Schwartz
would have supported his family financially, and that he
would, indeed, have done so to the extent of the award it
made. Defendants’ motion for j.n.o.v. or, alternatively, a new
trial on the issue of pecuniary loss is denied.

Non-pecuniary Damages

Defendant further contends that the jury’s award to
Stuckey for her mental anguish and !oss of companionship is
excessive and should be reduced or set aside. The Court dis-
agrees. A jury’s award of such intangible damages as thase at

B-8

issue in this case “is not to be disturbed unless it is entirely
disproportionate to the injury sustained.’ Marks v. Pan
American World Airways, Inc., 785 F.2d 539, 540 (5th Cir.
1986) (quoting Caldarera v. Eastern Airlines, Inc., 705 F.2d
778, 784 (5th Cir. 1983)). Such jury verdicts are vacated only
“on the strongest of showings.” /d. The award must be “so
large as to ‘shock the judicial conscience} ‘so gross or inordi-
nately large as to be contrary to right reason; so exaggerated
as to indicate ‘bias passion, prejudice, corruption, or other
improper motive} or as ‘clearly exceed[ing| that amount that
any reasonable man could feel the claimant is entitled to?” /d.
(emphasis in original; footnotes omitted).

The cases in which the Fifth Circuit has reviewed a jury
award for excessiveness make it clear that both district courts
and appellate courts have a duty to review jury awards in
light of the facts presented to the jury. See e.g. Caldarera, 705
F.2d at 784. The cases also make it clear that the maximum
that the jury can properly award is to be determined based on
the legal standard delineated above and the facts of each indi-
vidual case. There is not a Fifth Circuit rule that sets out a
fixed maximum recovery figure. See e.g... Osburn v. Anchor
Laboratories, Inc., 825 F.2d 908, 920-21 (5th Cir. 1987)
(affirming award of $500,000 for loss of husband’s love and
affection and loss of his household services); Marks v. Pan
American World Airways, Inc., 785 F.2d 539, 540-41 (Sth Cir.
1986) (affirming $250,000 award per child per parent for loss of
love and affection); Giancontier’ v. Pan American World Atr-
ways, Ine., 767 F.2d 1151, 1157 (Sth Cir. 1985) (under facts of
case $500,000 was maximum award for loss of love and affec-
tion of wife): Guiterrez v. Ervon Corp., 764 F.2d 399, 403 (Sth
Cir. 1985) (affirming $250,000 award for loss of society and
companionship and $750,000 award for mental anguish and
distress to surviving parents of an adult child); Winbowrne v.
Eastern Airlines, Tne... 758 F.2d 1016, 1018 (5th Cir. 1984) cert.
denied, 474 U.S. 1036 (1985) (affirming $500,000 award for loss
of wife’s love and affection); but see Eymard v. Pan American
World Airways, Ine., 795 F.2d 1250, 1236 (Sth Cir. 1986) Cindi-

B-9

cating that Caldarera had established an absolute upper limit
on awards for the loss of love and affection of a parent of
$300,000).

In Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986), the Texas
Supreme Court defined the elements of damages the awards
of which Deere contends are excessive in this case. “Mental
anguish represents an emotional response to the wrongful
death itself? /d. at 687. Loss of society “constitutes a loss of
positive benefits which flowed to the family from the decen-
dent’s having been a part of it?’ 7d. at 687-88. In the case at
bar, the jury awarded Charlsa Stuckey $400,000 for past and
future mental anguish and $200,000 for past and future loss of
companionship and society.

The court has reviewed the evidence presented to the jury
on these two elements of damages. The record is replete with
evidence as to the length and closeness of the relationship
between Schwartz and plaintiff, the activities they shared,
her ongoing /orror as to the manner of his death, her grief,
and her continuing sense of loss. The Court concludes that the
jury’s awards, while large indeed, are not disproportionate to
the injury sustained and are not so large as to shock the judi-
cial conscience. The awards do not exceed that amount to
which a reasonable person could feel plaintiff is entitled.
Accordingly, defendants’ motion for a remittitur or, alterna-
tively, a new trial on damages is denied.

Evidence of Other Accidents

Finally, Deere asks for a new trial on the issues of product
defect and exemplary damages because the plaintiffs’ evi-
dence of other accidents involving corn harvesting equipment
Was erroneously admitted. Deere argues that because the cir-
cumstances of the other accidents were not known, it cannot
be known if the circumstances were similar to the Schwartz
accident. Evidence of the other accidents, therefore, was
irrelevant, unnecessary, cumulative, and unfairly prejadicial.
The Court disagrees. A review of the trial transcript indicates

B-10

that the evidence of other accidents was drawn from agricul-
tural and technical publications and was offered to show that
Deere could have anticipated that a farmer could be injured
using a cornhead. Insofar as the exact circumstances of
Schwartz's accident are unknown because he was alone in the
field, the lack of knowledge of the circumstances of the other
accidents is not important to their relevance. The Court holds
that the evidence of other accidents was not irrelevant and,
therefore, was not erroneously admitted.

Furthermore, the Court holds that the evidence was not
unfairly prejudicial. Testimony about the other accidents was
brief and noninflammatory. In addition, the Court has granted
Judgment n.o.v. on the issue of exemplary damages so that
any possible prejudicial effect has been substantially miti-
gated. Deere’s request for a new trial because this evidence
Was erroneously admitted is denied.

In accordance with this opinion and the jury's verdict, judg-
ment will be entered in favor of plaintiffs and against Deere in
the amount of $2,402,970 plus court costs. This award consists
of $1,155,000 in pecuniary losses, $350,000 for mental anguish,
$350,000 for loss of companionship and society, $70,000 for the
conscious pain and suffering of Schwartz, and $477,970 in pre-
judgment interest calculated pursuant to Cavnar v. Quality
Control Parking, inc., 696 S.W.2d 549 (Tex. 1985).

So ORDERED.

Dated this 9th day of November, 1987.

s/ Barefoot Sanders
BAREFOOT
SANDERS
Acting Chief Judge of
the Northern District
of Texas

C-]

IN THE UNITED STATES COURT OF APPEALS-
FIFTH CIRCUIT
D.C. Docket No. CA-3-86-0893-H
CHARLSA SCHWARTZ, Individually, and as
Administratrix of the Estate of
HAROLD JOE SCHWARTZ, JR., Deceased, and as
Next Friend of AIMEE NICOLE SCHWARTZ and
AMANDA PAIGE SCHWARTZ,
Minors, Plaintiffs-Appellees, Cross-Appellants,
v.
JOHN DEERE COMPANY and
DEERE & COMPANY,
Defendants-Appellants, Cross-Appellees.

Appeals from the United States District Court
for the Northern District of Texas

Before REAVLEY, JOHNSON, and JONES, —
Circuit Judges.

JUDGMENT

This cause came on to be heard on the record on appeal and
was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here
ordered and adjudged by this Court that the judgment of the
District Court in this cause is affirmed in part and vacated in
part, and the cause is remanded to the District Court for fur-
ther proceedings in accordance with the opinion of chis Court.

IT IS FURTHER ORDERED that each party bears its
own costs on appeal.

October (1. 1988
JOHNSON, Circuit Judge, dissenting.

ISSUED AS MANDATE: Dee. 12, 1988
s/H. E. Adams, Jr.
Deputy
New Orleans, Louisiana
Dec. 12, 1988

D-1

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

—_

No. 87-1934

CHARLSA SCHWARTZ, Individually, and as
Administratrix of the Estate of
HAROLD JOE SCHWARTZ, JR., Deceased, and as Next
Friend of AIMEE NICOLE SCHWARTZ and
AMANDA PAIGE SCHWARTZ,
Minors, Plaintiffs-Appellees, Cross-Appellants,

Ws

JOHN DEERE COMPANY and DEERE & COMPANY,
Defendants-Appellants, Cross-Appellees.

Appeals from the United States District Court
for the Northern District of Texas

ON PETITION FOR REHEARING
(DECEMBER 1, 1988)

Before REAVLEY, JOHNSON and JONES, Circuit Judges.
PER CURIAM:

IT IS ORDERED that the petition for rehearing filed in
the above entitled and numbered cause be and the same is
hereby denied.

ENTERED FOR THE COURT:
s/Thomas M. Reavley

United States Circuit Judge

E-1

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 87-1934

CHARLSA SCHWARTZ, Individually, and as
Administratrix of the Estate of
HAROLD JOE SCHWARTZ, JR., Deceased, and as Next
Friend of AIMEE NICOLE SCHWARTZ and
AMANDA PAIGE SCHWARTZ,
Minors, Plaintiffs-Appellees, Cross-Appellants,

V.

JOHN DEERE COMPANY and DEERE & COMPANY,
Defendants-Appellants, Cross-Appellees.

Appeals from the United States District Court
for the Northern District of Texas

sefure REAVLEY, JOHNSON and JONES, Circuit Judges.

BY THE COURT:

IT IS ORDERED that the motion of appellants for clarifi-
cation of the Court’s opinion oi October 11, 1988 is
GRANTED. We confirm that the 30% comparative fault
reduction applies to all damages awarded in this case.

F-1

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

CA-3-86-0893-H

CHARLSA SCHWARTZ, Individually, and as
Administratrix of the Estate of
HAROLD JOE SCHWARTZ, JR., Deceased, and as Next
Friend of AIMEE NICOLE SCHWARTZ and
AMANDA PAIGE SCHWARTZ, Plaintiffs

V.
JOHN DEERE COMPANY and DEERE & COMPANY.
Defendants
JUDGMENT

On the 10th day of August, 1987, came on to be heard the
above cause of action for trial before a jury, and the parties
appearing in person and by their attorneys of record
announced ready for trial.

At the conclusion of the evidence, the Court submitted its
instructions and questions to the jury. The jury returned a
verdict on August 17, 1987, incorporated herein by reference,
finding for Plaintiffs against Defendants John Deere Company
and Deere & Company.

The jury found:

1. That the combine was defectively designed because it
lacked a cutoff switch, and that such defect was the producing
cause of the injuries suffered by Joe Schwatz;

2. That the cornhead and combine were not defective for
lack of warnings;

3. That Joe Schwartz was contributorily negligent and that

his negligenc® was a proximate cause of his injuries;

*

ES

F-2

4. That Joe Schwartz's negligence contributed 30% and
Defendants Deere’s product contributed 70% to causing Joe
Schwartz's injuries;

The jury found the total compensatory damages in the past
and future for the Plaintiffs in the sum of $2,750,000.00;

Out of the total damages awarded, each Plaintiff received
compensation for past and future damages as follows:

PECUNIARY LOSS
PAST FUTURE
Charlsa Stuckey $100,000.00 $500,000.00
Aimee Schwartz $ 25,000.00 $500,000.00
Amanda Schwartz $ 25,000.00 $500,000, 00
MENTAL ANGUISH
PAST FUTURE
Charlsa Stuckey $300,000.00 $100,000.00
Aimee Schwartz $ 10,000.00 $ 40,000.00
Amanda Schwartz $ 10,000.00 $ 40,000.00

LOSS OF COMPANIONSHIP AND SOCIETY

PAST FUTURE
Charlsa Stuckey $ 50,000.00 $150,000.00
Aimee Schwartz $ 50,000.00 $100,000.00
Amanda Schwartz $ 50,000.00 $100,000.06)

CONSCIOUS PAIN AND SUFFERING
OF JOE SCHWARTZ

$100,000.00

The jury found that Defendants acted with conscious indif-
ference to the rights and welfare of purchasers and users of
the cornhead and combine involved, and assessed against

EE ev

. »
I: -)

Defendants exemplary damages in the amount of
$1,500,000.00.

It appears tothe Court that a thirty percent (30%) reduc-
tion in the past and future damages as found by the jury,
should apply to all past and future actual damages.

It further appears to the Court that prejudgment interest
on past damages of Charlsa Stuckey, Aimee Schwartz and
Amanda Schwartz accrued at the legal rate of 10% com-
pounded daily from April 5, 1981, until the date this judgment
Was signed. Prejudgment interest damages as a result of the
Decedent’s conscious pain and suffering prior to his death
accrued at the legal rate of 10% compounded daily from Octo-
ber 5, 1980, until the date this judgment was signed.

[It is therefore ORDERED, ADJUDGED AND
DECREED that the total principal and past interest, as of
November 9, 1987, be apportioned among the Plaintiffs as

follows:

PREJUDGMENT
PRINCIPAL INTEREST TOTAL

Charlsa Stuckey $315,000.00 + $294,404.48 = $609,404.48
Aimee Schwartz $ 59,500.00 + $ 55,609.74 = $115,109.74
Amanda Schwartz $ 59,500.00 + $ 55,609.74 = $115,109.74
Estate of $ TO.000.00 + $ 72,346.04 $142,346.04
Joe Schwartz

[t further appears to the Court that as of November 9, 1987,
the prejudgment interest per day on the past damages of
Charlsa Stuckey was the sum of $166.96.

It further appears to the Court that as of November 9, 1987,
the prejudgment interest per day on the past damages of
Aimee Schwartz was the sum of $31.51.

It further appears to the Court that as of November 9, 1987,
the prejudgment interest per day on the past damages of :
Amanda Schwartz was the sum of $31.51.

a

It further appears to the Court that as of November 9, 198%,
the prejudgment interest per day on damages as a result of
the decedent's conscious pain and suffering was the sum of
$38.99.

It is hereby ORDERED, ADJUDGED AND DECREED
that the future damages be apportioned between the Plaintiffs
as follows:

PECUNIARY LOSS
Charlsa ‘Stuckey $350,000.00
Aimee Schwartz $350,000.00
Amanda Schwartz $350,000.00
MENTAL ANGUISH
Charlsa Stuckey $ 70,000.00
Aimee Schwartz § 28,000.00
Amanda Schwartz $ 2s,000.00

LOSS OF COMPANIONSHIP AND SOCIETY

Charlsa Stuckey $105,000.00
Aimee Schwartz $ 70,000.00
Amanda Schwartz $ 70,000.00

It is therefore, ORDERED, ADJUDGED AND
DECREED that Plaintiffs recover from Defendants John
Deere Company and Deere & Company the sum of
$1,925,000.00 in actual damages, together with prejudgment
interest of $405,623.96 on past damages of Charlsa Stuckey,
Amanda Schwartz and Aimee Schwartz calculated at the rate
of 10% compounded daily from April 5, 1981, until November
4, 1987: together with prejudgment interest of $72,546.04 on
damages as a result of the Decedent’s conscious pain and suf-
fering calculated at the rate of 10% compounded daily from
October 5. 1980. until November 9, 1987. This judement does
not include exemplary damages. —

F-5 -

It is further ORDERED, ADJUDGED AND DECREED
that Plaintiffs recover post-judgment interest at the rate of
6.90% from the date of the entry of this judgment, and costs of
Court.

G-1

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

Civil Action No. 3-86-0893-H

CHARLSA SCHWARTZ, Individually, and as
Administratrix of the Estate of
HAROLD JOE SCHWARTZ, JR., Deceased, and as Next
Friend of AIMEE NICOLE SCHWARTZ and
AMANDA PAIGE SCHWARTZ, Minors, Plaintiffs

V.
JOHN DEERE COMPANY and DEERE & COMPANY,
7 Defendants
ORDER

Pursuant to the Court’s Memorandum Opinion dated
November 9, 1987, Defendants’ August 31, 1987 motion for
Judgment Notwithstanding the Verdict (J.N.O.V.) or, Alter-
natively, for a New Trial is DENIED except as to the jury
award of exemplary damages, which has been set aside and
Was not included in the Judgment dated November 9, 1987.

SO ORDERED.
DATED: November 10, 1987.

s/ Barefoot Sanders
BAREFOOT SANDERS
ACTING CHIEF JUDGE
Northern District of Texas

H-1

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

7 CA-3-86-0893-F

CHARLSA SCHWARTZ, ET AL, Plaintiffs
v.

JOHN DEERE COMPANY ET AL, Defendants

COURT’S INSTRUCTIONS TO THE JURY
Members of the Jury:

Now that you have heard all of the evidence and the argu-
ment of counsel, it becomes my duty to give you the instruc-
tions of the Court concerning the iaw applicable to this case.

It is your duty as jurors to follow the law as I shall state it
to vou, and to apply that law to the facts as vou tind them from
the evidence in the case. You are not to single out one instruc-
tion alone as stating the law, but must consider the instruc-
tions as a Whole. Neither are you to be concerned with the
wisdom of any rule of law stated by me. Regardless of any
opinion you may have as to what the law is or ought to be, it
would be a violation of your sworn duty to base a verdict upon
any view of the law other than that given in the instructions of
the court, just as it would also be a violation of your sworn
duty, as judges of the facts, to base a verdict upon anything
other than the evidence in the case.

In deciding the facts of this case you must not be swayed by
bias or prejudice or favor as to any party. Our system of law
does not permit jurors to be governed by prejudice or sym-
pathy or public opinion. Both the parties and the public expect
that you will carefully and impartially consider all of the evi-

—S ill P<

=. —

dence in the case, follow the law as stated by the Court, and
reach a just verdict regardless of the consequences.

This case should be considered and decided by you as an
action between persons of equal standing in the community,
and holding the same or similar stations in life. A corporation
is entitled to the same fair trial at your hands as is a private
individual. The law is no respector of persons, and all persons,
including corporations, stand equal before the law and are to
be dealt with as equals in a court of justice.

When a corporation is involved, of course, it may act only
through natural persons as its agents or employees; and, in
general, any agent or employee of a corporation may bind the
corporation by his acts and declarations made while acting
within the scope of his authority delegated to him by the cor-
poration, or within the scope of his duties as an emplovee of
the corporation.

As stated earlier, it is your duty to determine the facts, and
in so doing you must consider only the evidence I have admit-
ted in the case. Any evidence to which an objection was sus-
tained by the Court, and any evidence ordered stricken from
the record, must be entirely disregarded. Also, there may
have been some testimony that, at the time it was offered, |
told you was admitted for a particular purpose only. You
should consider such evidence only for the purpose for which |
have allowed it to be admitted, and you should not consider it
for any other purpose whatsoever. The term “evidence”
includes the sworn testimony of the witnesses and the
exhibits admitted in the record.

temember that any statements, objections or arguments
made by the lawyers are not ~ idence in the case. The fune-
tion of the lawyers is to point out those things that are most
significant or most helpful to their side of the case, and in so
doing, to call your attention to certain facts or inferences that
might otherwise escape your notice.

H-3

In the final analysis, however, it is your own recollection
and interpretation of the evidence that controls in the case.
What thelawyers say is not binding upon you.

So, while you should consider only the evidence in the case,
you are permitted to draw such reasonable inferences from
the testimony and exhibits as you feel are justified in the light
of common experience. In other words, you may make deduc-
tions and reach conclusions which reason and common sense
lead you to draw from the facts which have been established
by the testimony and evidence in the case.

Now, I have said that you must consider all of the evidence.
This does not mean, however, that you must accept all of the
evidence as true or accurate.

You are the sole judges of the credibility or “believability” of
each witness and the weight to be given to his testimony. In
weighing the testimony of a witness you should consider his
relationship to the Plaintiff or to the Defendant; his interest,
if any, in the outcome of the case; his manner of testifving; his
opportunity to observe or acquire knowledge concerning the
facts about which he testified; his candor, fairness and intelli-
gence; and the extent to which he has been supported or con-
tradicted by other credible evidence. You may, in short, accept
or reject the testimony of any witness in whole or in part.

Also, the weight of the evidence is not necessarily deter-
mined by the number of witnesses testifying as to the exis-
tence or non-existence of any fact. You may find that the tes-
timony of a smaller number of witnesses as to any fact is more
credible than the testimony of a larger number of witnesses to
the contrary.

A witness may be discredited or “impeached” by contradic-
tory evidence, by a showing that he testified falsely concern-
ing a material matter, or by evidence that at some other time
the witness has said or done something, or has failed to say or
do something, which is inconsistent with the witness’ present
testimony.

hi

H-4

If you believe that any witness has been so impeached, then
it is your exclusive province to give the testimony of that wit-
ness such credibility or weight, if any, as you may think it
deserves.

The rules of evidence provide that if scientific, technical, or
other specialized knowledge might assist the jury in under-
standing the evidence or in determining a fact in issue, a wit-
ness qualified as an expert by knowledge, skill, experience,
training, or education, may testify and state his opinion con-
cerning such matters.

You should consider each expert opinion received in evi-
dence in this case and give it such weight as you may think it
deserves. If you should decide that the opinion of any expert
witness is not based upon sufficient education and experience,

or if you should conclude that the reasons given in support of

the opinion are not sound; or that the opinion is outweighed by
other evidence, then you may disregard the opinion entirely.

The burden is on a party in a civil action such as this to
prove every essential element of his claim by a “preponder-
ance of the evidence.’ A preponderance of the evidence means
such evidence as, when considered and compared with that
opposed to it, has more convincing force and produces in your-
minds a belief that what is sought to be proved is more likely
true than not true. In other words, to establish a claim by a
“preponderance of the evidence” merely means to prove that
the claim is more likely so than not so.

In determining whether any fact in issue has been proved
by a preponderance of the evidence, the jury may consider the
testimony of all the witnesses, regardless of who may have
called them, and all the exhibits received in evidence, regard-
less of Who may have produced them. If the proof should fail to
establish any essential element of a party's claim by a prepon-
derance of the evidence, the7ftry should tind for the other
party as to that claim.

ay

H-5

Contentions of the Parties

[ will now discuss with you the contentions of the parties to
this suit.

A. Plaintiffs’ Contentions

This is a product liability case arising from the wrongful
death of Harold ‘>e Schwartz (Schwartz). The products
involved are a combine and cornhead manufactured by the
defendants, John Deere Company and Deere & Company
(Deere).

The plaintiff, Charlsa Schwartz Stuckey (Stuckey), brings
this action as the surviving spouse and Administratrix of the
Estate of Harold Joe Schwartz, and as Next Friend of Aimee
Nicole Schwartz and Amanda Paige Schwartz, minor children
of the deceased. Plaintiffs contend that the cornhead and the
combine were defective for lack of adequate warning. Plain-
tiffs also contend that the combine was defectively designed
because it lacked a cut-off switch.

As a result of Schwartz's injuries and death, Stuckey seeks
damages, individually and in her capacity of Administratrix
and as Next Friend, to compensate for the loss of Schwartz's
earning capacity from the past and future; to compensate for
past and future mental pain and anguish. Stuckey also seeks
damages to compensate Schwartz's estate for his conscious
physical pain and mental anguish suffered before his death as
a result of the occurrence in question. Finally, because plain-
tiffs contend that Deere knew of the defects presented by
their products, but did nothing to eliminate or reduce such
hazards, plaintiffs seek exemplary damages.

B. Defendants’ Contentions

Deere denies that the combine and cornhead involved in
Schwartz's accident were the producing cause of Schwatz’s
injury or that they were defectively designed or manutfac-

H-6

tured. Deere also contends that the combine and cornhead had
adequate warnings and instructions at the time of their sale.

Deere further alleges that Schwartz voluntarily exposed
himself to a known danger posed by the cornhead with knowl-
edge and appreciation of that danger. Specifically, Deere con-
tends that Schwartz disregarded the warnings placed upon
the cornhead and that he voluntarily exposed himself to an
obvious danger, in that he failed to shut off the equipment.
Deere alleges that such conduct was the sole proximate cause
or a proximate cause of the injuries complained of.

(1) Design Defect

Many products as designed have both utility and danger
involved in their use. A product is “defectively designed”
when the product is unreasonably dangerous as designed for
any of its foreseeable uses, whether they be intended uses or
unintended uses, taking into consideration the utility of the
product and the risk involved in its use. Put another way, such
a product is unreasonably dangerous as designed if its utility
does not outweigh the magnitude of the danger inherent in its
introduction into commerce.

A showing of design alternatives which would have pre-
vented the accident or minimized its consequences does not
necessarily establish that the product is unreasonably danger-
ous. It is one thing to show that a manufacturer might have
designed a safer product, but quite another to show that the
product he did design was unreasonably dangerous. A manu-
facturer is not obligated to design the safest possible product
or one as safe as others make or a safer product than the one
in question. Rather, the manufacturer's obligation is to adopt
a design which is reasonably safe for any of its foreseeable
uses.

You will be called upon to determine whether the combine in

question was defective because it lacked a cut-off switch. See
Question No. 1.

H-7
(2) Warning or Instructions

A manufacturer has the duty to adequately warn of poten-
tial dangers in the use of its product of which it knows or
should know. A product is not defective for lack of adequate
warnings and/or instructions unless the lack of adequate
warnings and/or instructions renders the product unreasona-
bly dangerous. A product is unreasonably dangerous as mar-
keted if the ordinary man, knowing the risks and dangers
actually involved in its use, would not have marketed the
product without supplying more information about the risks
and dangers involved in its use and the way to avoid harm
therefrom.

An “unreasonably dangerous” product is one that is danger-
ous to an extent beyond that which would be contemplated by
the ordinary user of the product with ordinary knowledge
common to the community as to the product's characteristics.

“Adequate warnings and instructions” are defined as warn-
ings and instructions that are given in such form that they
could reasonably be expected to catch the attention of the rea-
sonably prudent person in the circumstances of the product's
use; and the content of the warnings and instructions must be
of such a nature as to be comprehensible to the average user
and to convey a fair indication of the nature and extent of the
danger and how to avoid it to the mind of a reasonably prudent
person.

In considering whether the manufacturer knew or should
have known of the danger, the manufacturer is held to the
knowledge and skill of an expert in the field. The manufactur-
er’s status as an expert means that he has a duty to test and
inspect his product. The extent of research and experiment
must be commensurate with the dangers involved. A product
msut not be made available to the public without disclosure of
those dangers that the application of reasonable foresight
would reveal.

H-&

In a situation where the ultimate user of the product did not
purchase the product directly from the manufacturer, the obli-
gation of the manufacturer is to issue warnings or instructions
which are reasonably calculated to reach the ultimate user.
The presence of an intermediate party does not by itself
relieve the seller of this duty. The adequacy of a warning
should be evaluated in light of the knowledge and expertise of
those who may reasonably be expected to use the product.

You will be asked to determine whether the cornhead and
the combine were defective for lack of adequate warning. See
Question No. 2.

(3) Manufacture

In order for a user in a products liability action to recover
from a inanufacturer, the user must first trace che product
causing injury to the manufacturer. Deere admits it manufac-
tured the combine and cornhead in question, so this is not a
disputed issue in this case.

(4) Producing Cause

In order to recover under the theory of strict liability, a user
must also prove that the defective product was a producing
cause of physical harm to him.

By the term “producing cause” is meant an efficient, excit-
ing, or contributing cause, which, in a natural and continuous
sequence, in connection with any other cause or causes, pro-
duced the event complained of. There may be more than one
producing cause of an event.

—

(5) Contributory Negligence

In addition to denying that any conduct of Deere caused any
injury or damage to Schwartz, Deere alleges, as a further
defense, that some contributory negligence on the part of
Schwartz himself was a proximate cause of any injuries and
consequent damages plaintiffs may have sustained. Contrib-

H-9

utory negligence is fault on the part of a person injured, which
cooperates in some degree with the conduct of another, and so
helps to bring about the injury.

3v the defense of contributory negligence, Deere in effect
alleges that, even though Deere may have been guilty of some
act or omission which was one of the producing causes,
Schwartz himself, by his own failure to use ordinary care
under the circumstances for his own safety, at the time and
place in question, also contributed one of the proximate causes
of any injuries and damages plaintiffs may have suffered.

The burden is on Deere, alleging the defense of contribu-
tory negligence, to establish, by a preponderance of the evi-
dence in the case, the claim that Schwartz himself was also at
fault, and that such fault contributed one of the proximate
causes of any injuries and consequent damages the plaintiffs
may have sustained.

By the term “proximate cause” is meant a cause which in a
natural and continuous sequence produces an event and with-
out which the event would not have occurred. To be a proxi-
mate cause of an event it should have been reasonably antici-
pated and foreseen by a person of ordinary prudence in the
exercise of

Damages

If vou find that the combine and cornheader were in an
unreasonably dangerous condition by virtue of their design or
due to a lack of adequate warning, and that such condition was
a producing cause of the accident, then you must determine
what damages to award Stuckey and her children, Aimee, and
Amanda for the loss suffered on account of Schwartz's death.
You shall award such sum of money, if any, that you find from
a preponderance of the evidence would, if paid now in cash,
fairly and reasonably compensate the plaintiffs for their pecu-
niary loss produced by the occurrence in question, and you
shall apportion the damages found by you between the plain-
tiffs in the form of verdict that will be given to you for this

tat el

H-10

purpose. In this connection, you are instructed that the term
“pecuniary losses” means not only the loss of actual money
that the deceased would have contributed to the plaintiffs had
he lived, but everything that may be valued in money, as here-
inafter instructed.

In determining the pecuniary loss to Stuckey and her chil-
dren, Aimee and Amanda, you are instructed that you will
award that sum of money, if any, that you find from a prepon-
derance of the evidence would, if paid now in cash, fairly and
reasonably compensate them for their pecuniary loss resulting
from the death of Schwartz. In determining such pecuniary
loss. if any, you are instructed that vou shall consider the fol-
lowing elements of damage, and none other: the care, main-
tenance, support, services, advice, counsel, and contributions
of pecuniary value that Stuckey would in reasonable probabil-
ity have

You are further instructed that the medical expenses and
funeral expenses incurred by the plaintiffs as a result of the
accident in question, have been stipulated to by the parties,
and should not be considered by vou in arriving at the amount
of damages.

Your verdict in this case will consist of the answers you
make to the following questions.

Question No. |

Do you find from a preponderance of the evidence that the
combine was defectively designed because it lacked a cut-off
switch and that such defect was a producing cause of the inju-
ries suffered by Schwartz?

Answer “We do” or “We do not.”
ANSWER: We do
Question No. 2

Do vou find from a preponderance of the evidence that the
cornhead and the combine were defective for lack of adequate

H-11
warning and that such defect was a producing cause of the
injuries suffered by Schwartz?
Answer “We do” or “We do not.”
ANSWER: We do not

If vou have answered either Questions Nos. | or 2 “We do.”
then answer Question No. 3.

Question No. 3.

Do you find from a preponderance of the evidence that
Schwartz was contributorily negligent and that such negti-
gence Was a proximate cause of his injuries?

Answer “We do” or “We do not.”

ANSWER: We do

If vou have answered Question No. 3 “We do? then answer
Question No. 4.

Question No. 4

For each party found by you to have caused Schwartz's inju-
ries, find by a preponderance of the evidence the percentage
caused by:

Schwartz: 30) C,
Deere: 70g
Total: 100%

You are instructed that the percentage of causation attrib-
utable to a party or product is not necessarily measured by the
number of acts, omissions, or product defects found. The per-
centages vou find must total 100 percent.

If vou have answered questions No. lor No. 2“We do?’ then
answer Question No. 5.

Question No. 5

What do you find from a preponderance of the evidence is
the sum of money, if paid now in cash, would fairly and reason-

H-12

ably compensate the plaintiffs for the following (answers In
dollars and cents, if any):

(A) The pecuniary loss of Charlsa Stuckey and her chil
dren Aimee and Amanda suffered as a result of the
death of Schwartz from the date of death until today
and in the future?

Date of death until today Future
ANSWER:
Stuckey: $100,000.00 — $500,000.00
Aimee: $25,000.00 $500 000.00
Amanda $ 25,000.00 | $500,000.00

(B) The mental anguish of Charlsa Stuckey and her chil-
dren suffered as a result of the death of Schwartz?

Date of death until today Future
ANSWER:
Stuckey: $300,000.00 _ = $100,000.00
Suaaee — $10,000.00 _ $ 40,000.00
Amanda : $10,000.00 - $ 40,000.00

(CC) The loss of companionship and society Charlsa
Stuckey and her children suffered as a result of the
death of Schwartz?

Date of death until today Future
ANSWER:
Stuckey: $ 50,000.00 $150,000.00
Aimee: § 50,000.00 $100,000.00
Amanda ¥ 50,000.00 $100,000.00

(D) The conscious pain and suffering suffered by)
Schwartz before his death as a result of his accident”

OOOO avo

ANSWER:
Schwartz: $100,000

[f you answered either Questions 1 or 2 “We do’ then
answer Question No. 6.

Question No. 6

Do you find from a preponderance of the evidence that such
conduct on the part of Deere, if any, was with conscious indif-
ference to the rights and welfare of purchasers and users of
the cornhead and combine?

Answer “We do” or “We do not,”
ANSWER: We do

[f vou have answered Question No. 6 “We do? then answer
Question No. 7.

Question No. 7

What sum of mconey, if any, do vou tind from a preponder
ance of the evidence should be assessed against Deere as
exemplary damages’

Answer in dollars and cents, if any.

ANSWER: $1,500,000,00

Your verdict must represent the considered judgment of
each juror. In order to return a verdict, it is necessary that
each juror agree thereto. In other words, your verdict must
be unanimous.

It is your duty as jurors to consult with one another and to
deliberate with a view to reaching an agreement if you can do
so Without violence to individual judgment. Each of you must
decide the case for yourself, but only after an impartial consid-
eration of all the evidence in the case with your fellow jurors.
In the course of your deliberations, do not hesitate to re-
examine your own views, and change your opinion, if con-

Vinced it is erroneous. But do not surrender your honest con-

H-14

viction as to the weight or effect of the evidence, solely
because of the opinion of your fellow jurors, or for the mere
purpose of returning a verdict.

Remember at all times you are not partisans. You are
judges — judges of the facts. Your sole interest is to seek the
truth from the evidence in the case.

Upon retiring to the jury room you should first select one of
your number to act as your foreman or forewoman who will
preside over your deliberations and will be your spokes-
person here in court. The foreman or forewoman or any other
juror who observes a violation of the Court’s instruction shall
immediately warn the one who is violating the same and cau-
tion the juror not to do so again.

These instructions are given vou because your conduct is
subject to review the same as that of the witnesses, parties,
attorneys, and the Judge. If it should be found that vou have
disregarded any of these instructions, it could be jury miscon-
duct and if may require another trial by another jury; then all
of your time will have been wasted.

A form of verdict has been prepared for your convenience.

You will take the verdict form to the jury room and when
you have reached unanimous agreement as to your verdict,
you will have your foreman or forewoman fill it in, date and
sign it, and then return to the courtroom.

If, during your deliberations, you should desire to commun-
icate with the Court, please reduce your message or question
to writing signed by the foreman or forewoman, and pass the
note to the-marshal who will bring it to my attention. I will
then respond as promptly as possible, either in writing or by
having you return to the courtroom-so that I can address you
orally. | caution vou, however, with regard to any message or
question vou might send, that vou should never state or spec

ify vour numerical division at the time.

H-15

We, the jury, have answered the foregoing questions and
return the same as our verdict in this case.

Date: August 17, 1987

s/[signature illegible]
Foreperson

[-]

DIRECT EXAMINATION EXCERPTS:

MS. TURLEY: Plaintiffs call Dr. Edward Dillman, your

Honor.

DR. EDWARD DILLMAN (Witness sworn)
DIRECT EXAMINATION |

BY MS. TURLEY:

Q.

Q.

eee

Q.

Would you state your full name, please sir?
Everett G. Dillman.

What is vour business?
I’m an economist, and I’m President of International
Business Examiners Incorporated.

Could you describe for the Court what sort of aca-
demic training you have had’

[ have a bachelor in business from the University of
New Mexico in Albuquerque. [ have a master’s in
business from the same school. I have an additional
year of graduate work, and finally I have a doctorate
from the University of Texas at Austin.

I understand, Doctor, from time to time you have
written articles and published work relating to
economics.

Yes, ma’am.

Have you also taught economics to others?

Well, I have taught at the university. I have taught
statistics and mostly a course called business policy
which is an integrated course that tries to put
together all the areas of business in economics that
the students have been exposed to prior to gradua-
tion, trying to make practical sense of the theory. |
also teach courses for the American College of Voca-
tional Experts. [ teach a course on the economic
interface with the vocational areas.

And are you still teaching today?

Cree

Q.

I-2
No, I have retired from the University of Texas at E]
Paso as a full professor. I retired in May of 1985. I
taught for many years.
Tell us a little bit more about the business and eco-
nomic consulting you do. You mentioned a bit about it
generally.
Well, again we do studies for businesses. We try to
make projections. In doing almost any type of busi-
ness consulting you are concerned about what’s hap-
pening in the future. So if a business man comes to me
and says I'd like to start an activity over here in a new
state or new city or a different part of town, I'll have
to go over there and look and see not only what’s
there now but what we could anticipate to be there
five years from now or ten vears from now, and I have
to go in and develop what we call a model. It’s actually
just a projection to see if certain things occur, and if
we do things a certain way, what would we expect to
have in terms of our income, and just because we
have income doesn’t mean that it’s going to be worth-
while because we may have other uses for that
income. So the question is what is that income really
worth to us, and we do some type of financial analysis
to see Whether it’s really worthwhile going into that
venture.
You mentioned a portion of your work involves eco-
nomic analysis with respect to individuals. Is that
related to the economic impact on a family because of
a serious injury or the death of a family member?
Yes, ma’am.
Did I ask you to do such an evaluation in this case?
Yes, ma’am.
Could you give us an idea, Dr. Dillman, of how many
economic evaluations of that sort you have done over
the years?
Well, in the last twenty-two years I been doing this, I
been retained on about forty thousand five hundred
different cases.
When vou do an economic analysis, is that a recog-
nized science or discipline that you are applying or
just Dr. Dillman’s method of calculation?

= TT

[-:}

No, the methodology is relatively standard. It’s used
in analyzing businesses as well as analyzing people,
but the methodology has been pretty well developed
and utilized for the development of technical terms,
the value of human capital over quite a number of
vears.

Would you tell us generally what you do in such an
economic analysis?

Well, there are really only four things that need to be
done. The first thing we have to determine is how
long or over What period of time the analysis is to be
made, and for that we go to tables published by the
U.S. Government or make some other assumptions.
One set of calculations is made over life expectancy.
That’s the average number of years an individual at a
viven age would’ be expected to live. Other calcula-
tions for working earnings are made over what we
call worklife, the number of years the person would
have the ability to work. There is one value from a
table. It’s called mean vears from the final separation
of labor force. It takes into consideration the proba-
bility of carly death or retirement or illness or acci-
dents. Another alternative is a calculation to age sev-
enty because early retirement doesn’t reduce one’s
capacity. If you stay healthy at age seventy you ought
to be able to work that long. Seventy is considered a
working age. So that’s one thing we do. The second
thing we do is we have to establish a basis on which to
make our calculations. Well, the best base for a per-
son who's been in the labor force for a long time, the
first thing wetook-at is what the person earned in the
past. We look at it and that gives you a pretty good
idea of what might happen in the future. Sometimes
that doesn’t work. Sometimes a person's earnings in
the past do not reflect their ability, their capacity. So
we have to look at a number of different things—their
age including the type of work they were doing and so
on. This third thing we do is we have to make adjust-
ments over time to allow for the fact that any wages
would be expected to increase. They increase because
of what’s sometimes called inflationary increases. It’s

Q.
Q.

L-4
really the fact that wages in general on the average
increase because of the productivity in the economy.
They may increase because a person as he gets older
gets better jobs and goes up the ladder so to speak.
That’s called individualized increases. But anyway,
we have to take those into consideration. The fourth
thing we have to do is to take into consideration that
if you had any money today ina lump sum that money
can be invested and earn interest, and you have to
make sure the lump sum plus the interest equals the
amount that the person would have, say, earned each
vear, and at the end of the worklife it would be all
gone. Now, as a practical matter in the third and
fourth step we do this one step. We look at the differ-
ence between wage increases and interest rates, and
they offset to a great extent but not completely.
Wages increase about two-thirds percent than the -
Let's talk about the Schwartz family and what you did
in this case. First, did I ask you to look at some facts
related to the economic loss?
Yes, ma‘am.
And have you been able to reach conclusions and
opinions as to the economic impact on the Schwartz
family as a result of Joe Schwartz's death?
Yes, ma’am.
Doctor, first, let’s tell the jury some of the materials
that you have looked at, that vou thought were help-
ful or necessary in arriving at your conclusions.

I had certain basic personal information —- date of
birth, date of death and the education. That kind of

background information about Mr. Schwartz.

Do vou understand that Mr. Schwartz was a farmer?
Yes, ma'am.

And in addition to the specific personal information
vou were provided, did you consult any government
publications?

Oh, ves, I consulted a life table. used the latest U.S.
Life Table to determine life expectancy and the table
called Medium Years to the Final Separation from
Work Force to determine labor life. And I also con-

Q.

Q.

Q.

& > ©

-

1-5

sulted as additional information the income tax rec-
ords. [ reviewed those.

Going back to the Schwartz family and the materials
you reviewed in this case, did you review the income
tax return”

Yes, I did.

Would you tell us what the income tax returns
showed for the last three, four years of Mr.
Schwartz's life?

The income tax showed deficits for the last four
years. Actually in 1980 the year of his death — And
true he had only lived nine months and a couple of
days so it may not be fully reflective of his activities,
but still it showed a two hundred thousand dollar loss.
Showed a net seventeen thousand dollar loss in 1979
and something like almost forty thousand dollars
until 1978. It showed a lot of losses.

What do the losses tell you in terms of Mr. Schwartz's
earning capacity?

Well, it showed me that he obviously was not earning
at his capacity. Capacity means ability. He had these
losses, and if we were just to look at these losses we
would conclude that what he actually had is a nega-
tive capacity, and that’s not true. My understanding
is he had a master’s degree in farming. He had the
ability to go out and earn money in some other way,
although that obviously was not being demonstrated
and hasn't been demonstrated for the vears for which
I had the tax returns. So I utilized another method. |
said he would have the ability or capacity te earn at
the average rate of a male with five years or more of
college.

And you picked the five years or more of college
based upon what?

Based upon the fact that he has a master’s degree he
falls into that statistical group.

As part of your analysis, did you need to determine
Mr. Schwartz's age at the time of his death?

Yes, ma’am, 29.29 vears of age.

1-6

Q). In addition to considering his education, did you con-
sider his marital status?

A. Yes, that he was married.

Q. Did you learn anything else about his family”

A. He was married and had two daughters.

Q. What did you assume to be Mr. Schwartz's life expec-
tancy at the time of his death” _

A. 44.51 years of age of life expectancy.

(Q). In addition to the twenty-nine?

A. Yes, ma’am, the life expectancy is the number of addi-
tional years one would have.

Q. And what did you find to be Mrs. Schwartz’s life
expectancy at the time of her husband's death?

A. 57.4 years.

(). You explained to us earlier what work life expectancy

was and how you derived that figure. In addition to
making an assumption as to Mr. Schwartz's life expec-
tancy, did you make a determination as to his work
life expectancy?

A. Yes, medium life to final separation from the labor
force would be 32.2 one additional years or in the
alternative to age 74.71 vears.

Q. Now, in doing your calculations what did you assume

as Mr. Schwartz's earnings range or level at the time

of his death?

A. Well. I assumed his earnings level was negative. His
earning capacity would be equivalent to that of the
average male with five or more years of college, and
there is data published by the U.S. Census Bureau as
to what that is, and that’s what I used.

Q. Taking the basic facts that you have just outlined for
us. Dr. Dillman, what was the next step in your
analysis?

A. What I did was I took the data that was published by
the Census Bureau as to earnings by education. |
took this — This is by age group, and I estimated
between each age group the amount for each age. |

eee

).

Q.

17

subtracted from that what we cail personal mainte-
nance, the amount he would have had to have spent
for himself, personal food and medical care, and |
then adjusted this over time to allow for the antici-
pated wage increases, and at the same time I dis-
counted it to present value. I did that by holding the
wave Increases to zero and discounting by the net dif-
ference of sixty-six hundredths of one percent. Then
when I calculated, I added fifteen percent fringe ben-
efits as the average fringe benefits that occur in soci-
ety. That wouid be mostly the employer's contribu-
tion to Social Security but has pension plans and
health and welfare, health insurance plans and that
sort of thing.

Can you explain to us what you were trying to do or
the purpose of your analysis? What were you trying
to demonstrate or calculate?

I was trying to show what his earning capacity or
ability would have been over his worklife less what he
would have had to spend on himself for personal
maintenance, that the remainder would be the fund
out of which could be considerations to the family
unit.

Dr. Dillman, could I get you to step down, please, sir.
If vou were to have assumed that Mr. Schwartz
worked only to his worklife expectancy, what was his
earning capacity from the date of his death through
his worklife expectancy?

Well, I am going to break this into past, future and
total.

The past refers to what, Dr. Dillman?

From the time of death up to the current time, about
six and a half years.

And we have earnings capacity and to worklife expec-
tancy, the total amount would be $1,215,543. Do you
want me to break these down?

If you will, please.

The past would be approximately $206,169, and the
future a little over one million dollars, $1,009,379.
And this is if he worked to his worklife which would
have been what age?

[-S

A. That would have been through age sixty or sixty-one,
maybe sixty-two.

Could I get you to label this as worklife?

It is.

Okay. I didn’t see it there. Did you also calculate Mr.
Schwartz's earning capacity had he continued to work
to age seventy?

CHE

MR. SAYLES: Just a moment. I object to any projections
to age seventy as being speculative. Worklife expectancy
based upon published tables, but going beyond the worklife
tables is speculation, and I object to it on those grounds.

THE COURT: Overruled.

BY MS. TURLEY:

(). To age seventy what is Mr. Schwartz's earning
capacity?
A. The past would be exactly the same of course because

the only difference would be going a few more years
in the future. The future would be $1,319,238 making
a total of a little over million and a half, $1,525,407.

(). Now, in addition to calculating earning capacity did
you make any other calculations with respect to the
impact on the family?

A. Yes, ma’am, [| made the calculations as to household
services.

(). What do you mean by household services, Dr.
Dillman?

A. These are the chore-type activities that the person

would perform in and around the house for the house-
hold benefit. They may be working on the yard or car
or doing a little painting or plumbing. Maybe helping
clean now and then, going shopping — those sort of
things. and I completed just based upon a factor of
ten hours a week — 1 don’t know how many hours a
week that Mr. Schwartz would have normally per-
formed it—then I evaluated federal minimum wage. If
the jury should find then it would be that amount or
one-tenth of that, and twenty, twice that amount.

(). Would you write for us on the chart assuming only ten
hours per week of household services?
A. if it were to average ten hours a week over his life

expectancy, in the past would be $11,193, and the
future would be $59,635 making a total of STO,S28.

Q. For each ten hours?
A. Yes, ma’am.
(). And if the evidence were to show that he spent more

than ten hours with the household services the num-
ber would be multiplied. And if it were less?

A. Yes, one hour would be one-tenth of this.

(). Can you explain to us why you assigned a value to
household services?

A. Why I assigned a value?

Q. Why did you calculate household services”

A. Because they have value. The activities have eco
nomic value, even though somebody doesn’t actually
pay the husband for fixing the car or pay the wife for
cleaning. You might say if that person didn’t do it
somebody else would do that, and if somebody else
wasnt a family member, then they would have to be
paid. But every constructive effort has value, and
that value I assigned the lowest amount is federal
minimum wage, and that’s what I assigned here.

MS. TURLEY: Pass the witness, your Honor

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0986%3A1. Public record. Not legal advice.