                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 07a0237n.06
                              Filed: March 30, 2007

                                           No. 05-6895

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


MURRAY LAWRENCE,                                 )
                                                 )
          Plaintiff-Appellee,                    )
                                                 )
v.                                               )   ON APPEAL FROM THE UNITED
                                                 )   STATES DISTRICT COURT FOR THE
E. I. DU PONT DE NEMOURS & CO.,                  )   MIDDLE DISTRICT OF TENNESSEE
                                                 )
          Defendant-Appellant.                   )




          Before: COLE, SUTTON and COOK, Circuit Judges.


          SUTTON, Circuit Judge. Murray Lawrence was exposed to a toxic cloud of chemicals while

working as a welder at a chemical-processing facility owned by E. I. du Pont de Nemours and

Company. DuPont conceded responsibility for the accident, and a jury awarded Lawrence $3.2

million in damages. On appeal, DuPont argues that Lawrence did not introduce sufficient medical

evidence to prove that his injuries from the accident were permanent, that Lawrence’s vocational

expert’s testimony was unduly speculative and that the verdict form was prejudicially defective. We

affirm.
No. 05-6895
Lawrence v. E. I. Du Pont De Nemours & Co.

                                                I.


       For 24 years, Murray Lawrence worked as a free-lance welder, offering his specialized

services to companies willing to buy his time. Because Lawrence was a skilled welder and because

he was small enough to “weld all the tight spots,” JA 94, he worked regularly and earned an average

of $36,000 to $42,000 per year.


       In early February 2003, Koch Specialty Plant Services Inc. contacted Lawrence and offered

him an emergency welding job at a plant owned by DuPont in Old Hickory, Tennessee. Lawrence

arrived at the job site on February 10 and welded for several days without incident.


       On the morning of February 16, however, a toxic cloud of methyl benzoate, methyl p-toluate,

orthoxylene and water vapor burst from the pipes at the plant and enveloped Lawrence as he walked

to his work site. Exposure to such toxins may cause “cardiac stress, anemia . . . respiratory

difficulties, mucosal hemorrhage, possible liver and kidney damage” and even death. JA 299. After

Lawrence ran from the cloud and radioed his supervisor, a foreman took Lawrence to the plant’s

control room. Despite Lawrence’s repeated requests for a doctor, DuPont employees waited four

hours before taking Lawrence to see the company doctor. The company doctor gave Lawrence

morphine for his headaches, took x-rays and tested Lawrence’s blood, and he eventually told

Lawrence that he could return “to work in the morning.” JA 117.


       The next morning, however, Lawrence saw another doctor, who gave him analgesics for his

headache and placed Lawrence under a nebulizer to cool the burning sensation in his lungs. This

                                               -2-
No. 05-6895
Lawrence v. E. I. Du Pont De Nemours & Co.

doctor referred Lawrence to a pulmonary specialist, who saw him the next day. The pulmonary

specialist told Lawrence that he had “inflamed lungs[,] . . . a sinus infection, and . . . a rash on [his]

neck.” JA 125. The specialist also sent Lawrence to take a pulmonary function test at another

hospital, but Lawrence could not complete the test because his “chest was hurting so bad.” JA 125.

Unable to work, Lawrence returned to his home in Fairhope, Alabama.


        In Alabama, Lawrence’s family doctor referred him to a local pulmonary specialist, Dr.

Michael Houston, who with Dr. Frank Hixon treated Lawrence for the next few years. Dr. Houston

administered breathing tests to Lawrence on February 27, 2003, which showed that Lawrence had

developed asthma. A computed-tomography scan of his sinuses showed “substantial sinusitis,”

which ultimately prompted Dr. Hixon to perform a sinus endoscopy on Lawrence a few months later.

JA 174. In August 2003, Dr. Houston diagnosed Lawrence with “[o]ccupational induced lung

disease,” “left maxillary sinusitis” and “some degree of reactive airway disease.” JA 177. Dr.

Houston thought that Lawrence’s symptoms were caused by the accident at the DuPont facility, and

he pointed out that the chemical exposure had at least aggravated Lawrence’s underlying sinus

condition.


        In a November 14, 2003, letter, Dr. Houston suggested that Lawrence had reached maximum

medical improvement—that, despite Lawrence’s remaining respiratory symptoms, it was “as good

as it’s going to get . . . , which is intermittent symptoms.” JA 206. In a January 5, 2004, letter, Dr.

Houston noted that “it’s quite obvious that [Lawrence] had a toxic gas exposure . . . . I believe it’s

imperative that Mr. Lawrence not be exposed to smoke or hazardous chemicals.” JA 200. Dr.

                                                  -3-
No. 05-6895
Lawrence v. E. I. Du Pont De Nemours & Co.

Houston also explained that “I’m uncertain how he will be able to continue his position as a welder”

unless “appropriate respiratory modifications can be made”—unless, in other words, there was a way

he could work as a welder “without being in a smokey, dusty environment.” JA 200–01.


       In November 2004, Lawrence took a methacholine challenge test, which returned a negative

result. Based on this test, Dr. Houston revised his diagnosis: Lawrence no longer showed signs of

reactive airway dysfunction syndrome but still had “recurrent respiratory symptoms” and “recurrent

sinopulmonary symptoms.” JA 194–95.


       On February 11, 2004, Lawrence filed this lawsuit against DuPont, claiming that DuPont’s

negligence exposed him to toxic fumes and caused a variety of injuries, some of them permanent.

At trial, DuPont admitted negligence, and both parties agreed that the sole issue for the jury was the

determination of damages arising from the accident.


       Lawrence relied on Dr. Houston as his medical expert. Among other things, Dr. Houston

testified that Lawrence still suffered from recurrent respiratory and sinopulmonary problems, had

reached maximum medical improvement in his condition, and should not be exposed to fumes,

smoke, dust or other irritants. Dr. Houston could not say whether Lawrence’s “intermittent recurrent

respiratory symptoms” were “permanent or not,” JA 213, but when asked if he had an “opinion as

to any type of permanent condition with his sinusitis[] and . . . his pulmonary condition,” Dr.

Houston noted that Lawrence would have “long-term issues in employment, . . . I think he’s going

to have major problems with being exposed . . . to common things that a welder is exposed to,” JA


                                                -4-
No. 05-6895
Lawrence v. E. I. Du Pont De Nemours & Co.

185. He also expected that Lawrence’s sinusitis would aggravate his asthma. Dr. Houston linked

all these problems to Lawrence’s exposure to methyl p-toluate at the DuPont facility. See JA 172

(“I don’t think anyone is sure how much [Lawrence] was exposed to, [but it was] enough to . . .

cause[] substantial problems.”). Reviewing his treatment of Lawrence, Dr. Houston noted that he

had previously prescribed Accolate, Allegra D, Astelin, Flonase, Prednisone, Singulair, Tylenol 3

and Zyrtec for Lawrence’s sinus problems; Accolate, Albuterol, Combivent and Qvar for Lawrence’s

asthma; Advair, Flovent, Prednisone and Singulair for Lawrence’s other pulmonary symptoms; and

Augmentin and Quinoline as antibiotics. As of January 4, 2005, Lawrence was still taking Astelin,

Albuterol and Quinoline.


       Dr. Houston stressed that Lawerence “can’t be in a dusty, smoky environment. He needs to

be trained to do something else. That’s what he needs. He needs . . . a new occupation.” JA 187.

Dr. Houston said that he did not believe a welder could avoid “fumes and the smoke and this dust,”

JA 178, and that short of a “wind tunnel” or a “bubble,” he could not see any modifications that

could be made to allow Lawrence to return to his job as a welder, JA 204. All in all, because

Lawrence needed a “dust-free, irritant free, respiratory irritant free environment,” JA 210, Dr.

Houston testified that Lawrence is now “unable to work as a welder,” JA 178.


       Dr. Roy Johnson testified as DuPont’s medical expert. Based on an April 29, 2005,

examination of Lawrence and laboratory results, Dr. Johnson concluded that the chemical exposure

at the DuPont facility had “probabl[y] aggravat[ed] . . . preexisting sinusitis” so that Lawrence now

had “recurrent sinusitis.” JA 342. He explained that the exposure had likely caused Lawrence’s

                                                -5-
No. 05-6895
Lawrence v. E. I. Du Pont De Nemours & Co.

reactive airway dysfunction syndrome, but that this condition had likely resolved itself. “Lawrence

potentially could continue to work as a welder,” Dr. Johnson said, “if some reasonable job

modifications could be made, such as use of a local exhaust system, a power air purifying respirator,

isolation or enclosure.” JA 324.


        Lawrence himself testified that the ventilation systems proposed by Dr. Johnson were

unrealistic and that, with such restrictions, he would never find a job as a welder. Since his sinus

surgery, Lawrence’s sinuses “drain from the back,” clogging his throat, “chok[ing] [him] at night”

and inducing coughing attacks. JA 143. His lungs sometimes “close up” and “get[] real sore” so

that he “can’t stand for someone to touch [him] in [the] chest.” JA 124. He testified that he

sometimes gets a “burning sensation in his throat when [he] cough[s]” and that his chest frequently

tightens up and “burns all night.” Id. He also has “blurred vision in [his] left eye.” JA 153.

Lawrence stated that he had worked odd jobs around his home town since the accident and that he

was taking five or six medications a day to treat his respiratory ailments. The medications make

Lawrence “very forgetful” and “confused,” JA 144, and give him “bad diarrhea” and “headaches,”

JA 145. In short, Lawrence can no longer perform many routine activities—such as cleaning the

bathroom with a chemical solvent like Tilex, jogging or playing with his three-year-old son—without

significant difficulties.


        Lawrence also called David Strauser, a vocational expert, to testify about Lawrence’s lost

future earnings and vocational disability. He said that the “work life expectancy” of someone

Lawrence’s age was 13.4 years, but that most individuals would work a full 16 years to the age of

                                                -6-
No. 05-6895
Lawrence v. E. I. Du Pont De Nemours & Co.

65. JA 242. Noting that Lawrence was unable to work as a welder, Strauser calculated Lawrence’s

post-accident yearly earnings to be $18,200. Concluding that Lawrence could have earned $42,000

a year as a welder had he not been injured, Strauser calculated Lawrence’s loss of earning capacity

to be between $318,920 and $380,800, depending on when Lawrence retired. JA 243. “Clearly,”

he said, “Lawrence has suffered a loss in his earning capacity as a result of the injuries he sustained

at the DuPont facility.” JA 244.


       At the end of the trial, DuPont asked the district court to include several questions on the

verdict form. One of them asked the jury if Lawrence had a “permanent sinus injury”; another asked

if Lawrence had a “permanent [lung] injury.” JA 36–37. The district court rejected both proposed

questions. It instead gave the jury a special verdict form that read:


       We, the jury, unanimously find that the defendant DuPont is liable to the plaintiff for
       the following damages, which have been proven by a preponderance of the evidence:
       Non-Economic Damages:
       (a) Pain and suffering — past                                         $____________
       (b) Pain and suffering — future                                       $____________
       (c) Permanent impairment                                              $____________
       (d) Loss of the ability to enjoy life — past                          $____________
       (e) Loss of the ability to enjoy life — future                        $____________
       Economic Damages:
       (f) Medical care/services — past                                      $____________
       (g) Medical care/services — future                                    $____________
       (h) Loss of earning capacity — past                                   $____________
       (i) Loss of earning capacity — future                                 $____________

                                                 -7-
No. 05-6895
Lawrence v. E. I. Du Pont De Nemours & Co.

                                TOTAL                                           $____________
JA 83–84. The jury returned a verdict of $3,174,627 in damages for Lawrence, which included

$400,000 for permanent impairment, $1,997,725 for future pain and suffering, loss of enjoyment and

medical expenses and $327,030 for loss of future earning capacity. The trial court rejected each of

DuPont’s motions for judgment as a matter of law as well as its motion for a new trial.


                                                   II.


        We give fresh review to the denial of DuPont’s renewed motion for judgment as a matter of

law. Estate of Riddle v. S. Farm Bureau Life Ins. Co., 421 F.3d 400, 408 (6th Cir. 2005). And we

review the denial of DuPont’s motion for a new trial for an abuse of discretion. Anchor v. O’Toole,

94 F.3d 1014, 1021 (6th Cir. 1996).


                                                   A.


        DuPont first challenges the sufficiency of the evidence, questioning whether it supports the

jury’s conclusion that Lawrence’s injuries were permanent. As the company sees it, Lawrence’s

medical evidence was “equivocal,” “self-contradictory” and ultimately insufficient to submit the case

to a jury. Br. at 13. As we see it (or at least as we believe a reasonable jury could see it), the medical

evidence supports a damages award premised on permanent injuries.


        As a federal court sitting in diversity, we follow the state-law rules governing evidentiary

challenges to the jury verdict. See 28 U.S.C. § 1652; Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78–79



                                                  -8-
No. 05-6895
Lawrence v. E. I. Du Pont De Nemours & Co.

(1938); K & T Enters., Inc. v. Zurich Ins. Co., 97 F.3d 171, 176 (6th Cir. 1996). Under Tennessee

law, “[f]indings of fact by a jury in civil actions shall be set aside only if there is no material

evidence to support the verdict.” Tenn. R. App. P. 13(d); Overstreet v. Shoney’s, Inc., 4 S.W.3d 694,

718 (Tenn. Ct. App. 1999). A verdict, however, cannot be based on pure conjecture, Reserve Life

Ins. Co. v. Whittemore, 442 S.W.2d 266, 274 (Tenn. Ct. App. 1969), and to submit the “issue of

permanency of all but the most obvious injuries” to a jury, Tennessee law requires expert medical

testimony on the subject, Owens Ill., Inc. v. Lane, 576 S.W.2d 348, 350 (Tenn. 1978); see also Miller

v. Willbanks, 8 S.W.3d 607, 615 (Tenn. 1999).


       Once we give Lawrence the benefit of “all reasonable inferences to sustain the verdict,” as

we also must do under Tennessee law, Alley v. McLain’s Inc. Lumber & Constr., 182 S.W.3d 312,

316 (Tenn. Ct. App. 2005) (internal quotation marks omitted), we believe that the jury had sufficient

medical evidence from which to conclude that Lawrence’s injuries were permanent and that he

would sustain damages from his injuries in the future. Dr. Houston, Lawrence’s medical expert,

testified that the chemicals at the DuPont facility had caused, or at least substantially aggravated,

Lawrence’s respiratory and sinus problems. And Dr. Houston gave every indication that these

problems were permanent: Lawrence had reached the maximum medical improvement since the

injury and yet still suffered from recurrent respiratory and sinus problems that required him to avoid

smoke, chemical fumes and dust. Dr. Houston also repeatedly testified that Lawrence would have

“long-term issues in employment,” JA 185, because he needed a “dust-free, irritant free, respiratory

irritant free environment,” JA 210, which (as other evidence confirmed) was simply unavailable to


                                                -9-
No. 05-6895
Lawrence v. E. I. Du Pont De Nemours & Co.

a welder. See JA 178, 185, 187, 200, 203–04. Even DuPont’s own medical expert, Dr. Johnson,

acknowledged that Lawrence had “recurrent sinusitis within reasonable medical probability,” JA

325, and that at most Lawrence could “potentially” return to his work as a welder but only with

substantial accommodations, JA 324. See also JA 342 (diagnosing Lawrence with “recurrent

sinusitis”); cf. Barron v. State of Tenn. Dep’t of Human Servs., 184 S.W.3d 219, 222 (Tenn. 2006).


       DuPont responds that Dr. Houston’s testimony cannot support the verdict because he never

declared that Lawrence’s injury was permanent “within a reasonable degree of medical certainty.”

Br. at 18. Tennessee law, however, does not have an unyielding requirement that expert medical

opinions be phrased only in terms of a “reasonable degree of medical certainty.” “[N]othing in

Tennessee law requires that those or any other specific words be recited in order for expert testimony

to be admissible.” State v. Young, No. 01C01-9605-CC-00208, 1998 WL 258466, at *22 (Tenn.

Crim. App. May 22, 1998); see also Mitchell v. Ensor, No. W2001-01683-COA-R3-CV, 2002 WL

31730908, at *11 (Tenn. Ct. App. Nov. 18, 2002); Jackson v. Allen, No. M2000-01673-COA-R3-

CV, 2002 WL 661930, at *2 (Tenn. Ct. App. Apr. 23, 2002). While the absence of any reliable

medical testimony will condemn a verdict, the record “in its entirety” must be bereft of competent

medical evidence in order to prohibit a finding of permanent injury. Barron, 184 S.W.3d at 222.

Compare, e.g., Singleton v. Procon Prods., 788 S.W.2d 809, 811–12 (Tenn. 1990) (overturning

award when doctor merely stated that permanence was “possible”); Owens Ill., 576 S.W.2d at 350

(overturning award when permanent injury was “just a possibility”); Int’l Yarn Corp. v. Casson, 541

S.W.2d 150, 152 (Tenn. 1976) (overturning award when injuries “may be with [plaintiff] for the rest


                                                - 10 -
No. 05-6895
Lawrence v. E. I. Du Pont De Nemours & Co.

of her life, or they may not be, depending on what the future holds”); Md. Cas. Co. v. Young, 362

S.W.2d 241, 243 (Tenn. 1962) (overturning award when the injury “could” be permanent and that

it was “very possibl[e] . . . but I couldn’t tell you more [than] that”); Porter v. Green, 745 S.W.2d

874, 877–78 (Tenn. Ct. App. 1987) (overturning award when doctor stated that “we don’t know

what’s wrong with [one plaintiff], even to today” and “I’m almost sure [the other plaintiff] has some

chronic problem”); with Walker v. Saturn Corp., 986 S.W.2d 204, 207 (Tenn. 1998) (upholding

award when doctor restricted plaintiff’s use of her right thumb based on a “chronic” condition); Hill

v. Royal Ins. Co., 937 S.W.2d 873, 875–76 (Tenn. 1996) (upholding award when doctor required that

plaintiff no longer work near a particular chemical); Jones v. Walters, 1989 WL 54103, at *2 (Tenn.

Ct. App. May 23, 1989) (upholding award even though doctor admitted that plaintiff could

“spontaneously get better with time”).


       Even if Tennessee law does not require medical testimony concerning the permanence of an

injury to be phrased in terms of a “reasonable degree of medical certainty,” DuPont points out that

Dr. Houston expressly disclaimed that the injury was permanent. Dr. Houston, DuPont notes, gave

this equivocal response—“I can’t tell you if it’s permanent or not,” JA 213—when DuPont asked

him on cross-examination, “Are you able to state within a reasonable degree of medical certainty

whether or not [Lawrence’s recurrent respiratory symptoms] [are] permanent?” But in view of the

specific question that DuPont’s counsel asked Dr. Houston as well as the remainder of Dr. Houston’s

testimony, see Int’l Yarn, 541 S.W.2d at 152 (“[T]he testimony of the witness must be considered

in its entirety . . . .”), it is clear that Dr. Houston was addressing Lawrence’s respiratory symptoms


                                                - 11 -
No. 05-6895
Lawrence v. E. I. Du Pont De Nemours & Co.

(i.e., his lung condition), not Lawrence’s recurrent sinusitis (i.e., his sinus condition). At most, this

question thus undermines the weight of the medical evidence regarding the permanence of

Lawrence’s respiratory symptoms, not the permanence of his sinus conditions. See Gardner v.

Steinforth, No. 01A01-9307-CV-00327, 1994 WL 55365, at *4 n.1 (Tenn. Ct. App. Feb. 25, 1994)

(noting that doctor’s equivocal testimony “weaken[s]” but “do[es] not completely destroy”

reasonably certain medical testimony elicited earlier).


        DuPont further contends that Dr. Houston’s testimony was “internally inconsistent” and

therefore cannot be credited at all. Br. at 26. While “[c]ontradictory statements of a witness in

connection with the same fact have a result of cancelling out each other” under Tennessee law,

Tibbals Flooring Co. v. Stanfill, 410 S.W.2d 892, 896 (Tenn. 1967), Dr. Houston’s statements

regarding the permanence of Lawrence’s injury do not suffer from this defect. He consistently

maintained that Lawrence needed a “dust-free, irritant free, respiratory irritant free environment,”

JA 210, that Lawrence could not return to his work in any other environment, that Lawrence had

reached maximum medical improvement and that Lawrence had “recurrent sinopulmonary

symptoms,” JA 195. As a result of the accident, Lawrence now faced long-term pain and

suffering—including sinus drainage, aggravated asthma, coughing attacks, a “burning sensation” in

his throat and chest, JA 124, and “blurred vision” in one eye, JA 153—and needed to take several

medications that made him “very forgetful” and “confused,” JA 144, and gave him “bad diarrhea”

and “headaches,” JA 145.




                                                 - 12 -
No. 05-6895
Lawrence v. E. I. Du Pont De Nemours & Co.

       DuPont persists that Dr. Houston acknowledged that Lawrence was “able to return to gainful

employment” in a November 2003 letter, JA 205, which (DuPont claims) is necessarily inconsistent

with his other testimony given that Lawrence was a welder and given that the most likely “gainful

employment” to which Lawrence would return was work as a welder. This argument, however,

hardly gives Lawrence the benefit of all reasonable inferences and, worse, ignores the context in

which Dr. Houston wrote the letter. Just three months before writing this letter, Dr. Houston had

diagnosed Lawrence with “[o]ccupational induced lung disease” and “reactive airway disease,” JA

177, casting doubt on whether he would be able to work at all—in any profession. In the interim,

Lawrence’s medical condition improved, prompting Dr. Houston to conclude that Lawrence could

now work, but not necessarily that he could work as a welder. In the historical context of Dr.

Houston’s treatment of Lawrence, in the context of a record in which all agreed (including Dr.

Houston) that Lawrence could not return to a work environment that contained dust, chemical fumes

or smoke and in the context of a record in which ample evidence showed that it was impractical for

welders to insist on working in an environment free of dust, chemical fumes or smoke, it becomes

clear that Dr. Houston’s letter conveyed the point that Lawrence could now work in some capacity,

not that he could return to work as a welder. On this record, the jury could consider Dr. Houston’s

testimony and could rely on it in awarding damages premised on permanent injuries to Lawrence.


                                                B.


       DuPont seeks a new trial on the ground that Strauser’s loss-of-earning-capacity calculations

were unduly speculative. See John E. Green Plumbing & Heating Co., Inc. v. Turner Constr. Co.,

                                              - 13 -
No. 05-6895
Lawrence v. E. I. Du Pont De Nemours & Co.

742 F.2d 965, 968 (6th Cir. 1984) (prohibiting damage awards based solely on “mere speculation,

guess, or conjecture”). The record undermines this argument: Lawrence testified that, on average,

he earned between $36,000 and $42,000 per year; Lawrence’s tax return showed that his actual salary

for 2002 ($36,875) fell within that range; DuPont failed to introduce any evidence to the contrary;

and Strauser candidly explained to the jury that he used the top of Lawrence’s salary range in

preparing his calculations. The range that Strauser presented to the jury (from $318,920 to

$380,800) thus represented a reasonable, not a speculative, estimate of Lawrence’s lost earning

capacity, and the jury’s award at the low end of that range ($327,030) shows that it critically

considered Strauser’s expert testimony rather than unthinkingly speculating about an appropriate

award.


         DuPont separately maintains that the jury verdict on loss of future earning capacity must be

vacated because the final figure of $327,030 “is not adjusted to the present value as required by the

jury instructions.” Br. at 42. Besides saying that this is what happened, however, DuPont offers no

reason—record supported or otherwise—to doubt the jury’s good faith in following the court’s

instructions regarding the present value of any award. See JA 484 (“[Y]ou must adjust the award

of [future] damages to allow for the reasonable earning power of money and the impact of

inflation.”). And although DuPont critiques the award on the ground that the jury did not pick the

low or high end of Strauser’s range (but rather a number in between), the fact remains that Strauser

never testified that these were the only alternatives available. In the final analysis, the law requires

only the “degree of certainty that the nature of the case admits,” John E. Green Plumbing & Heating


                                                 - 14 -
No. 05-6895
Lawrence v. E. I. Du Pont De Nemours & Co.

Co., 742 F.2d at 968 (internal quotation marks and brackets omitted), and the jury award falls well

within this modest—and necessarily flexible—requirement.


                                                   C.


        DuPont also seeks a new trial on the ground that the special verdict form did not say that

“permanency of injury [was] a necessary predicate to a finding of future damages,” making the form

prejudicially misleading. Br. at 33. We disagree.


        Although general verdicts are the norm, a district court “may require a jury to return only a

special verdict in the form of a special written finding upon each issue of fact.” Fed. R. Civ. P.

49(a). When a court uses a special verdict form, it must explain the form in a way that “enable[s]

the jury to make its findings upon each such issue.” Id.; cf. Hickson Corp. v. Norfolk S. Ry. Co., 260

F.3d 559 (6th Cir. 2001). We leave the decision to use a special verdict to “the sound discretion of

the trial court,” Workman v. Frito-Lay, Inc., 165 F.3d 460, 465 (6th Cir. 1999), just as we do with

respect to the “discretion” of district courts to “draft[] jury instructions” generally, United States v.

Prince, 214 F.3d 740, 761 (6th Cir. 2000).


        Broad as the trial court’s discretion may be in choosing a verdict form, it is not unlimited.

If the instructions and special verdict form, taken together, are “confusing, misleading and

prejudicial,” we will require the district court to hold a new trial. Hostetler v. Consol. Rail Corp.,

123 F.3d 387, 393 (6th Cir. 1997); see also United States v. Alpine Indus., Inc., 352 F.3d 1017,

1027–28 (6th Cir. 2003).

                                                 - 15 -
No. 05-6895
Lawrence v. E. I. Du Pont De Nemours & Co.

       The special verdict form used by the district court in this instance did not run into any of

these problems. By stipulation of the parties, the verdict form did not ask if DuPont was negligent.

It instead listed nine categories of damages that the jury could award. By distinguishing among these

categories of damages that the jury could award, the form ensured that the jury could award certain

damages (such as “permanent impairment” or “loss of earning capacity — future”) only if Lawrence

had proved his entitlement to each of them “by a preponderance of the evidence.” JA 83.


       At least one Tennessee appellate court has approved a similar form—and language—when

parties disputed the damages arising from an injury. See Overstreet v. Shoney’s, Inc., 4 S.W.3d 694,

713 (Tenn. Ct. App. 1999) (approving a special verdict form that states: “If [the defendant is liable],

set forth the amount of damages, if any, you find have been proven by a preponderance of the

evidence in each of the following categories,” followed by a list of the nine categories of damages

used here). The form used by the district court also closely follows one approved by the Tennessee

Judicial Conference. See 8 Tenn. Prac. Pattern Jury Instr. T.P.I.–Civil Appendix B, Form 3, at

579–80 (2006) (stating in relevant part: “Decide the total amount of damages sustained by

plaintiff. . . . What amount of damages, if any, which have been proven by a preponderance of the

evidence,” and listing the nine categories of damages at issue here).


       The district court, moreover, removed any lingering risk of confusion from the use of this

form through its instructions to the jury. The district court instructed the jury (1) that Lawrence was

only “entitled to recover compensation for any injury that was legally caused by the negligent

conduct of DuPont,” JA 481; (2) that the jury should “not duplicate damages for any element by also

                                                - 16 -
No. 05-6895
Lawrence v. E. I. Du Pont De Nemours & Co.

including that same loss or harm in another element of damage,” id.; (3) that if Lawrence had a

preexisting condition, then he was “entitled to recover damages only for any aggravation of the

preexisting condition,” JA 482; (4) that Lawrence had to “prove the future effect of [his] injury with

reasonable certainty” and that the jury could not rely on “mere conjecture or . . . possibility,” JA 483;

and (5) that the jury should “enter either zero or an amount of money for the various kinds of injury”

described on the verdict form, JA 485. These instructions thus properly made clear what the jury

could, and could not, do in awarding each type of damages, removing any risk of confusion about

the verdict form.


        “To allow the jury to conclude that Lawrence has a permanent injury without specifying what

injury he has,” DuPont persists, “forced the jury to speculate . . . about Lawrence’s current

condition.” Br. at 36. Yet a general verdict form—which, as DuPont acknowledges, is the

norm—would not solve that problem. And DuPont offers no explanation why the special verdict

used here required any more speculation than a general verdict would require. No less importantly,

it did not take speculation to conclude that Lawrence suffered a permanent injury. As we have

shown, Dr. Houston linked Lawrence’s recurrent sinusitis to the accident at the facility and

repeatedly asserted that Lawrence could work only in a “dust-free . . . respiratory irritant free

environment.” JA 210. And because of his long-term injuries, Lawrence testified that he now deals

with sinus drainage; aggravated asthma; coughing attacks; a “burning sensation” in his throat and

chest, JA 124; and “blurred vision” in one eye, JA 153; and needs to take several medications that

make him “very forgetful” and “confused,” JA 144, and give him “bad diarrhea” and “headaches,”


                                                 - 17 -
No. 05-6895
Lawrence v. E. I. Du Pont De Nemours & Co.

JA 145. In the face of the medical evidence, it is speculation only on our part that would allow us

to conclude that the jury based its decision on conjecture.


                                                III.


       For these reasons, we affirm.




                                               - 18 -
