     Case: 17-10417      Document: 00514552857         Page: 1    Date Filed: 07/12/2018




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


                                      No. 17-10417                             FILED
                                                                           July 12, 2018
                                                                          Lyle W. Cayce
CYNTHIA A. GOFF,                                                               Clerk

              Plaintiff - Appellant

v.

WILLIAM SCOTT PERT; OAKLEY TRUCKING, doing business as Oakley
Trucking, Incorporated, also known as Bruce Oakley Trucking,

              Defendants - Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:15-CV-1934


Before DAVIS, HAYNES, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Cynthia Goff appeals the district court’s entry of a take-nothing
judgment on her personal injury claim and denial of her motion to set aside the
verdict and for new trial on damages. She contends that the jury verdict was
inconsistent and against the great weight of the evidence. For the reasons
explained below, we AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-10417

                                I. Background
      This dispute arises from a car wreck involving an 18-wheeler driven by
William Scott Pert on behalf of Oakley Trucking (collectively, the
“Defendants”). James Goff, Cynthia’s husband, was driving on Interstate 20
in Dallas, Texas, with Cynthia in the passenger seat, when they were rear-
ended by Pert’s 18-wheeler.      The Goffs subsequently ran into a concrete
barrier, causing serious injury to Cynthia.
      The jury heard competing evidence on two different issues of causation:
(1) the cause of the 18-wheeler’s impact with the Goffs’ car, and (2) the cause
of the Goffs’ car hitting the concrete barrier. As to the impact involving the 18-
wheeler, the Defendants presented evidence that the Goffs drifted into the 18-
wheeler’s lane, while the Goffs presented evidence that they maintained their
lane and were hit from behind. As to the subsequent impact involving the
concrete barrier, the Defendants’ reconstruction expert disagreed with the
Goffs’ position that the impact from the 18-wheeler caused their car to hit the
concrete barrier.
      The jury charge consisted of a general charge with instructions on the
applicable law and how it should be applied, followed by four special verdict
questions, three of which were conditioned on responses given to prior
questions. The first question asked if the “negligence, if any, of [James Goff
and/or William Pert] proximately cause[d] the occurrence in question.” The
second question, conditioned on the first, asked for the percentage of
responsibility “for each person you found caused or contributed to cause the
Goffs’ injuries,” again listing James and Pert. The jury answered, “Yes,” to
Question 1 for both James and Pert and apportioned 99% of the responsibility




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                                        No. 17-10417

to James and only 1% of the responsibility to Pert. 1 The third question, about
James’s injuries, was properly skipped by the jury, leading to Question No. 4:
                                       Question No. 4
              What sum of money, if paid in cash, would fairly and
              reasonably compensate Cynthia Goff for her injuries,
              if any, that resulted from the automobile collision?
              Answer separately in dollars and cents, if any, or
              “None.”
Question No. 4 went on to list past and future physical pain, physical
impairment, and mental anguish. No clarification questions were asked about
this interrogatory. The jury answered, “None,” for each category of damages.
       No objection was raised by Cynthia at the time the verdict was read, but
after Defendants moved for entry of judgment based on the jury’s finding,
Cynthia moved to set aside the verdict and for a new trial based on an allegedly
inconsistent verdict and a damages finding she contended was against the
great weight and preponderance of the evidence. The district court entered a
take-nothing judgment against the Goffs, concluding that Cynthia could not
recover for stipulated past medical expenses because such damages were
community property and thus James’s 99% comparative negligence was

       1   Before answering the first two interrogatories, however, the jury asked for
clarification of the exact events to focus on in determining negligence and apportioning fault.
Its questions suggest that the jury did not believe the Goffs’ theory of the case. As relevant
here, the jury first asked, “In our considerations to the amount of negligence, should we base
it on our understanding of what really happened, or what the amount of negligence there is
if events took place exactly as the plaintiff claims?” It then clarified, “If we agree that the
events occurred differently than the plaintiffs claim, does the amount of defendant’s
negligence default to 0%.” The judge responded in writing that their answers “must be based
on the evidence and the law that was previously given to you by the Court.” Two days later,
the jury asked a follow-up question: “There exists a disagreement to the interpretation of
what specifically is the ‘occurrence in question’ in regards to the scope of the plaintiffs [sic]
burden of proof. Can we get the transcript of the plaintiff’s opening statement?” The judge
responded, after conferring with counsel and hearing no objection, “(1) ‘Occurrence in
question’ means the accident. (2) No. The Plaintiffs’ attorney’s opening statement is not
evidence.”
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imputed to Cynthia for purposes of past medical expenses. Cynthia Goff timely
appealed the take nothing-judgment and denial of her motion to set aside the
verdict and for new trial on damages.
                                  II. Standard of Review
       “Granting or denying a motion for a new trial is within ‘the sound
discretion of the trial court, and reversible only for abuse of that discretion.’”
Smith v. Tidewater Marine Towing, Inc., 927 F.2d 838, 843 (5th Cir. 1991)
(quoting Boyle v. Pool Offshore Co., 893 F.2d 713, 717 (5th Cir. 1990)). “When,
as in the instant case, the trial court has denied a motion for a new trial, our
review is particularly limited.”         Id.   “We are required under the Seventh
Amendment to make a concerted effort to reconcile apparent inconsistencies in
answers to special verdicts if at all possible.” 2 Ellis v. Weasler Eng’g Inc., 258
F.3d 326, 343 (5th Cir. 2001) (citing Atl. & Gulf Stevedores, Inc. v. Ellerman
Lines, Ltd., 369 U.S. 355, 364 (1962)). We have reconciled a jury’s verdict even
where the apparent conflict was “obvious to the legally trained mind” because
the questions “were ambiguous and easily misunderstood.” McVey v. Phillips
Petroleum Co., 288 F.2d 53, 59 (5th Cir. 1961).
                                    III. Discussion
       Cynthia argues that she is entitled to a new trial on damages because
the jury’s answers were inconsistent and the damages finding was against the
great weight of the evidence. We conclude that the questions were worded in
such a way that Cynthia cannot demonstrate that they are all pointing to the




       2 Cynthia asserts that the jury form was a general verdict and thus not entitled to the
Seventh Amendment’s reconciliation requirement. We disagree. The verdict form here
included a general charge with special interrogatories, which is permitted under Federal
Rule of Civil Procedure 49(a). See Weymouth v. Colo. Interstate Gas Co., 367 F.2d 84, 95 n.31
(5th Cir. 1966). Moreover, we have previously determined that similar negligence questions
were special interrogatories subject to the Seventh Amendment’s reconciliation requirement.
See Tidewater Marine, 927 F.2d at 842–43.
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same issues. She thus cannot overcome the strong presumption in favor of
reconciling the jury’s verdict.
       Cynthia contends that the jury verdict of no damages is against the great
weight of the evidence. We hold that Cynthia is precluded from complaining
of this potential error, however, because she requested a damages
interrogatory allowing for a no damages (“if any”) finding despite the stipulated
medical expenses for pain treatment and did not object to the inclusion of
“none” as an option in answering Question No. 4.                   See First Nat’l Bank,
Henrietta v. Small Bus. Admin., 429 F.2d 280, 284 (5th Cir. 1970) (holding that
a litigant seeking a new trial due to lack of evidence on a jury finding cannot
complain about the error when it requested the issue’s submission despite no
record evidence to support a negative answer). Cynthia was offered an
opportunity to object before the charge was submitted, and she did not. See
Jimenez v. Wood Cty., 660 F.3d 841, 844 (5th Cir. 2011) (en banc) (“Rule 51
requires a party to object to jury instructions in order to preserve a claim of
error for appeal.”). 3
       AFFIRMED.




       3 Though not expressly overruled, following our decision in Jimenez, the Supreme
Court held that correctional officials do not need reasonable suspicion to conduct reasonable
strip searches of detainees arrested for minor offenses. See Florence v. Bd. of Chosen
Freeholders, 566 U.S. 318 (2012). This ruling did not affect the issue of preserving objections
to jury charges.
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