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Click here for the full text of this decision FACTS: The appellants, Lloyd S. Blackmore and New Star Freight Service, contend the district court erred in admitting the testimony of a “grief expert” and in upholding the jury’s damage award to the appellee, Frank Vogler, for the future mental anguish and loss of society due to the deaths of his wife (Becky Vogler) and young child (Kallie Vogler). HOLDING: The judgment of the district court is affirmed with respect to the admission of Dr. Phyllis Silverman’s expert testimony and the jury award for Vogler’s future pain and suffering because of the deaths of his wife and daughter. The judgment of the district court is also affirmed with respect to its affirmance of the jury’s finding of conscious pain and suffering on the part of Mrs. Vogler. The court orders a remittitur of the amount of damages awarded for Mrs. Vogler’s conscious pain and suffering for either a total award of $30,000 or a new trial for these damages alone. The judgment of the district court is reversed with respect to the affirmance of the jury’s award to the estate of Kallie Vogler for her conscious pain and suffering. Blackmore and New Star do not argue categorically against the admission of grief expert testimony, nor do they challenge the credentials of Dr. Silverman. Thus, they acknowledge that the decision to admit her testimony lay in the trial court’s balancing of several factors � whether the jury was competent to assess the evidence intelligently without expert testimony, whether the evidence had probative weight, and whether the risk of prejudice was greater. Even the cases cited by Blackmore and New Star permitted the exclusion of grief expert testimony as an exercise of the trial court’s discretion. Because Dr. Silverman’s testimony was relevant, if not necessary to the jury, the district court did not abuse its discretion in admitting the evidence. Few, if any, of the awards cited by either side differentiate between past and future suffering and loss of companionship. Because Blackmore and New Star do not object to the awards by the jury for Mr. Vogler’s suffering and loss of companionship in the past, only cases in which future damages are explicitly designated are proper bases of comparison. Blackmore and New Star distinguished higher awards as factually dissimilar to the case at bar. Because no remittitur is warranted under the maximum recovery rule using cases alleged by Blackmore and New Star to be sufficiently similar, the issue of higher awards need not be addressed. None of the cases cited by either Blackmore and New Star or Mr. Vogler address awards made in a wholly similar situation � where a man has lost both his wife and his child. The court’s review of the caselaw reveals that there is no factually similar case in the relevant jurisdiction; therefore, the maximum recovery rule is not implicated. As noted in another case in which remittitur was requested, “[b]ecause the facts of each case are different, prior damages awards are not always controlling; a departure from prior awards is merited”if unique facts are present that are not reflected within the controlling caselaw.’” Lebron v. United States, 279 F.3d 321 (5th Cir. 2002). Nothing recommends remittitur in this case. Although the jury was presented with sufficient circumstantial evidence to conclude that Mrs. Vogler felt conscious pain and suffering prior to her death, none of the factually-similar cases in this circuit supports the extensive damages awarded by the jury. Applying the 50 percent multiplier to these awards, the maximum amount that could be awarded to the estate of Mrs. Volger for her conscious pre-death mental suffering is $30,000. While the movements of Mrs. Vogler’s car prior to impact could support a jury finding that she was aware of the impending crash, there is absolutely no evidence, circumstantial or otherwise, to suggest that three-year-old Kallie, secured in her child restraint seat directly behind Mrs. Vogler, had any hint of the impending disaster. Mr. Vogler contends that “certainly Kallie perceived her mother’s panic, and was frightened herself.” This inference built upon the supposition of Mrs. Vogler’s panic is simply too attenuated for reasonable jurors to have arrived at a verdict in favor of Kallie’s estate. Because the court permitted a jury finding in favor of the conscious pain and suffering of Mrs. Vogler based in large part on the circumstantial evidence of her awareness of the impending collision, the court finds Mr. Vogler’s argument that Kallie suffered additional conscious mental anguish because her portion of the car was crushed milliseconds after the driver’s seat was impacted unavailing. The court concludes that the district court erred in upholding an award for Kallie’s conscious pain and suffering prior to her death. OPINION: Clement, J. DISSENT: Reavley, J.”I agree with the judgment except for the rejection of the jury awards for the suffering of the mother and child. Those $200,000 awards do not shock my conscience or seem to me to be unjust or contrary to reason. Because that is the legal limit to my review, I would not interfere. The decision about non-pecuniary damage awards is necessarily subjective. Apart from the Seventh Amendment and with respect, I would personally prefer that the decision be made after a full and fair trial by these eight jurors rather than by my fine judicial colleagues. . . . “My colleagues compute the mother’s damages, as they do that of the husband and father, by what has come to be the maximum recovery exercise in this circuit. Departing from the rule of deference to jury verdicts, the court lists the awards by different juries and judges, for different parties under different circumstances, adding a percentage for the sake of reasonableness, and thereby fixes the maximum recovery allowable in the case on appeal. This practice has been gently described as a quagmire. By using a Texas court of appeals decision and a district court opinion, my colleagues decide that $30,000 is the maximum allowed for the pain and anguish experienced by Becky Vogler.”

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