     Case: 10-40162 Document: 00511335467 Page: 1 Date Filed: 12/29/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 29, 2010

                                     No. 10-40162                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



ALESIA DIETZ,

                                                   Plaintiff - Appellant
v.

THOMAS A. GARSKE,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:07-CV-900


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Alesia Dietz appeals from the denial of her motion for a new trial following
a jury award of damages. She contends the district court erred in denying her
motion because the jury’s award was impermissibly inconsistent and against the
great weight of the evidence. We AFFIRM.
       In May 2006, Dietz was injured along an interstate highway in east Texas
when her vehicle was struck from the rear by a vehicle driven by Thomas


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                  No. 10-40162

Garske. Dietz filed a negligence action against Garske in Texas state court.
Garske removed the case based on diversity to the United States District Court.
After a jury trial, Dietz was awarded damages for past and future medical
expenses, past physical pain and mental anguish, and past physical impairment.
The jury awarded no damages for future physical pain, future mental anguish,
future physical impairment, and future disfigurement. Dietz’s motion for a new
trial was denied. After entry of judgment on the verdict, Dietz appealed.
      A motion for a new trial challenging the weight of the evidence should be
denied “unless the verdict is against the great [weight], not merely the
preponderance, of the evidence.” Jones v. Wal-Mart Stores, Inc., 870 F.2d 982,
986 (5th Cir. 1989). We review the district court’s decision denying a motion for
a new trial for abuse of discretion. Id. “The district court abuses its discretion
. . . only when there is an absolute absence of evidence to support the jury’s
verdict.” Seidman v. American Airlines, Inc., 923 F.2d 1134, 1140 (5th Cir. 1991)
(citation omitted). The reviewing court gives somewhat more deference to the
district court’s ruling where, as here, “the district court has denied the new trial
motion . . . and left the jury’s determinations undisturbed.” Dawson v. Wal-Mart
Stores, Inc., 978 F.2d 205, 208 (5th Cir. 1992) (citations omitted).
      In diversity cases, state law governs the type of evidence necessary to
support the verdict, but the sufficiency of the evidence is governed by a federal
standard. Jones, 870 F.2d at 986. The federal standard requires that we view
the evidence and all reasonable inferences in the light most favorable to the
jury’s determination, disregarding its verdict only if the evidence is so strong
that a reasonable person could not have found as the jury did. Id. at 987.
      “Under Texas law, once liability is established, a jury must award some
amount for each element of damages that is objectively proved.” Jackson v.
Taylor, 912 F.2d 795, 797 (5th Cir. 1990). Dietz argues that the jury’s failure to
award her damages for future pain, future mental anguish, and future

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impairment requires a new trial, as both plaintiff and defendant’s medical
experts testified that she may continue to have problems with her neck. Dietz
did not brief and thus has waived any argument as to the jury’s failure to award
her damages for future disfigurement. Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993).
        Dietz was diagnosed with whiplash the day after her automobile accident.
A month later, Dietz visited Dr. Clark Gunderson, an orthopedic surgeon, who
diagnosed her with a cervical and lumbar strain, prescribed medications and
physical therapy, and recommended she return in one month. She did not
attend physical therapy and came back two months later complaining of
continued neck and back problems. She also complained of numbness and
tingling in her hand. Based on these subjective complaints, Dr. Gunderson
refilled Dietz’s prescriptions, advised her to attend physical therapy, and
recommended she return in a month.
        Sixteen months passed before Dietz sought treatment for neck or back
pain.    Dietz visited Dr. Gunderson in December 2007.          He refilled her
prescriptions and ordered physical therapy. Dietz attended six physical therapy
sessions. She returned to Dr. Gunderson in February 2008, and he prescribed
additional medications and ordered an MRI of her cervical and lumbar spine.
The radiologist’s report indicated that Dietz had a small disc herniation at C5-
C6 and a bulging disc at C4-C5 and C6-C7.
        Dr. Gunderson reviewed only the radiology report, not the MRI films. He
recommended a cervical discogram, a procedure where dye is injected into the
spine to locate which disc is causing discomfort. Nineteen months passed and
no discogram was conducted. Dietz saw Dr. Gunderson once in this extended
period. Although Dietz saw other physicians during this time for unrelated
medical concerns, she did not report having any injuries, neck pain, tingling, or
numbness.

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      Dr. Gunderson testified at trial that Dietz has a small ruptured disc and
that she will live with pain without surgery. He admitted on cross-examination,
though, that the bulge is not large and that he did not know whether the MRI
actually showed nerve root impingement.         He testified that he had not
recommended surgery and could not testify that Dietz needs surgery until a
discogram is conducted. Dr. Gunderson conceded that he mainly relied on
Dietz’s subjective complaints in formulating his diagnosis. He also admitted
that Dietz’s failure to attend physical therapy as prescribed may have
contributed to her problem.
      Garske requested an independent medical examination.            Dr. David
Edelstein, a board-certified orthopedic surgeon, examined Dietz and viewed the
MRI films. He disagreed with the radiologist’s findings that Dietz had any
abnormality at levels C4-C5 and C6-C7. He concluded that her only abnormality
is a mild bulge at C5-C6, but the disc is not herniated or encroaching upon the
spinal canal.   Dr. Edelstein stated that Dietz’s subjective complaints were
inconsistent with the objective findings from the MRI.       He concluded that
surgery was not necessary because any potential future pain could be controlled
with very minimal follow-up care, including medications, exercise, or physical
therapy. Dr. Edelstein expected Dietz to have a normal life with no restrictions
on her daily activities.
      Dietz testified that neck pain and hand numbness and tingling prevented
her from holding her infant for long periods of time and from doing other
activities, such as cleaning her house. The jury also was presented evidence that
contradicts that Dietz’s activities were impaired.     Dietz acknowledged her
injuries have not prevented her from working outside the home.            In an
employment application dated July 9, 2007, Dietz marked that no doctor had
ever restricted her activities, she had never been assessed any percentage of
disability to any part of her body, she was not presently under medical care or

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taking any medication, and she was not aware of any condition that might
impair her ability to work. In a pre-employment physical conducted that same
day, the examining doctor reported that her head, neck, and extremities were
normal.
      Deitz relies on two decisions of this court to support her arguments that
the district court erred. The later of the two precedents is distinguishable
because it was a Jones Act negligence claim. Brown v. Parker Drilling Offshore
Corp., 410 F.3d 166, 178-79 (5th Cir. 2005). Regardless, the relevant part of
Brown quoted language from the earlier decision that Deitz also relies upon, so
we consider that language in discussing the first case. Id. at 179 n.11 (quoting
Yarbrough v. Sturm, Ruger & Co., 964 F.2d 376, 379 (5th Cir. 1992)).
      In Yarbrough, the thirteen-year-old plaintiff accidently shot himself in the
leg; the leg later was amputated. Yarbrough, 964 F.2d at 377-78. He brought
a product liability suit under Texas law against the firearm’s manufacturer.
Although the jury awarded damages for past and future medical expenses and
for past disfigurement, no damages were awarded for future disfigurement or for
physical impairment, mental anguish, or pain and suffering. Id. at 378.
      The district court held that this award was “inconceivable” and “absolutely
unbelievable” because of the inconsistency between the jury finding of liability
and the damages award. Id. The district court denied the defendant’s motion
for a mistrial, accepted the verdict as to liability, and empaneled another jury
to determine damages. Id. We agreed it was inconceivable the injured boy
would be entitled to damages for past disfigurement but not for future
disfigurement; his lost leg would not grow back. Id. at 379. A lost limb
necessarily entails past and future physical impairment, and thus the jury
should have awarded those damages. Id. We also found that the defendant
hardly contested the claims of damages, and instead focused on showing there
was no liability. Id.   These circumstances made it clear that the verdict was

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either simply irrational or based on an improper compromise; the facts of the
case support no other explanation for the outcome. Id. at 379-80.
      By contrast, here there are other explanations. The jury’s decision to
award Dietz future medical expenses does not conflict with its refusal to award
damages for future pain, mental anguish, and impairment.           Dr. Edelstein
testified that any potential pain could be controlled with minimal follow-up care,
including medications, exercise, or physical therapy. Thus, there was evidence
on which jurors could rely that Dietz would not have future pain. This record
supports that jurors might reasonably have concluded that the need for future
medical care would not equate to a likelihood of future pain, making consistent
the award for medical care without an award for pain. The jury’s award for past
impairment but not future impairment also is not conflicting because there was
evidence Dietz no longer was impaired.
      We conclude that the jury verdict was not counter to the great weight of
the evidence. The district court did not abuse its discretion in denying the
motion for a new trial.
      AFFIRMED.




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