                          United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

___________

No. 97-1205
___________

Sandra Gail Davis, Debtor-in-           *
Possession; Earl Davis, Debtor-         *
in-Possession,                          *
                                        *
            Appellees,                  *
                                        *
      v.                                *
                                        *
Ford Motor Company,                     *
                                        *
            Appellant.                  *
                                        *

___________

No. 97-1250                                 Appeal and Cross-Appeal from the
___________                                 United States District Court for the
                                            Western District of Arkansas.
Ford Motor Company,                     *
                                        *
            Appellee,                   *
                                        *
      v.                                *
                                        *
Sandra Gail Davis, Debtor-in-           *
Possession; Earl Davis, Debtor-in-      *
Possession,                             *
                                        *
            Appellants.                 *
                                     ___________

                               Submitted: September 8, 1997
                                   Filed: October 17, 1997
                                    ___________

Before McMILLIAN, BRIGHT and MURPHY, Circuit Judges.
                           ___________

BRIGHT, Circuit Judge.

       Sandra Gail Davis ("Davis") sustained severe injuries when her 1991 Ford
Explorer vehicle rolled over her leg, notwithstanding its transmission was in a park
position. In her claim against the Ford Motor Company ("Ford"), the jury awarded her
$1.2 million in a general verdict. Ford admitted the vehicle was defective and the
defect caused the accident, but it asserted Davis' negligence in disregarding warnings
to set her parking brake contributed to the accident and that such issue should have
been submitted by the trial court to the jury on a special verdict form, rather than by
way of the general verdict form. We reject this contention of error and affirm.1

I. BACKGROUND

       On May 16, 1992, Davis' 1991 Ford Explorer rolled over her left leg while the
transmission was in the park position. Davis' injuries required extensive medical
treatment including four hospitalizations totaling fifty-five days, seven surgeries, thirty-
nine debridement procedures, twenty-five physician visits, fifty-six home health care
visits, fifty-three physical therapy treatments and treatment with forty-two different
medications. Davis' medical expenses totaled $116,942.10. Two doctors testified for


      1
       Davis filed a cross-appeal but chose not to argue her cross-appeal. Therefore,
this opinion does not discuss the cross-appeal filed by Davis and it is deemed
dismissed.

                                           -2-
Davis that she would be hospitalized one to two times per year for approximately two
weeks for treatment of recurrent infections.

       Davis had approximately 60,000 miles on her Explorer at the time of the accident
and testified that she had never experienced any problem with the parking gear. Davis
introduced evidence showing the accident occurred while the vehicle was parked on a
slope of 3.5%.

       Davis put forth substantial evidence on the subjects of product defect, Ford's
negligence, causation, and Davis' damages. One Ford engineer testified by deposition
that the defect in Ford vehicles caused an "unacceptable" and "unreasonable" risk of
danger. The expert also testified that Ford knew vehicle owners commonly rely
exclusively on the park mechanism to hold their vehicles in place. Ford's documents also
revealed that there were 1,547 reported "roll in park" incidents on vehicles with A4LD
transmissions. Ford's engineers acknowledged that Ford, after the investigation began
in 1990, continued to manufacture and sell vehicles with the defective transmissions until
October 1991.

      Ford, although admitting liability, submitted evidence that Davis ignored four
warnings to set the parking brake when parking. Ford further argued that Davis could
have improved the strength and range of motion of her leg had she done aggressive
physical therapy. Ford sent Davis in 1993 to an orthopedic surgeon in Denver, who
advised aggressive physical therapy that Davis did not pursue.

      Ford requested a special verdict that would allocate fault between Davis and
Ford and assess Davis' total damages. Ford's Proposed Interrogatory 2 would have
asked the jury "[d]o you find from a preponderance of the evidence that there was
negligence on the part of Plaintiff, Sandra Gail Davis, which was a proximate cause of
her injuries and damages?" Ford's Proposed Interrogatory 3 would have required the
jury to "[u]sing 100% to represent the total responsibility for the occurrence and any


                                          -3-
injuries or damages resulting from it, apportion the responsibility between [Davis and
Ford]." Ford's fourth proposed interrogatory would have then asked the jury to state
the amount which would compensate Davis for damages caused by Ford. App. at 30A-
32A.

        The district court denied Ford's request for a special verdict. The district court
instructed the jury on the principles of comparative fault as applicable in Arkansas.
Arkansas uses modified comparative fault whereby Davis would recover nothing if her
fault is equal to or greater than Ford's fault. The general verdict form submitted to the
jury included two questions regarding Davis' claim for compensatory damages:

           1. On the claims of Sandra Gail Davis against Ford Motor
       Company, we find in favor of:


               Sandra Gail Davis        or            Ford Motor Company
....

             2. We, the jury, assess damages in favor of Sandra Gail Davis in
       the amount of: $


Add. at 123.

II. DISCUSSION

        Ford argues that the district court abused its discretion by refusing to submit the
requested special verdict. Pursuant to Federal Rule of Civil Procedure 49, the decision
whether to use a special verdict is vested in the district court. This discretion of the
trial court has been seen by appellate courts as "not ordinarily reviewable." See, e.g.,
Jarrett v. Epperly, 896 F.2d 1013, 1020 (6th Cir. 1990); Lummus Indus., Inc. v. D.M.
& E. Corp., 862 F.2d 267, 273 (Fed. Cir. 1988). The Eighth Circuit has cited text-


                                             -4-
book authority that the decision to use a general verdict accompanied by interrogatories
is committed to the unreviewable discretion of the trial judge.2 Flanigan v. Burlington
Northern, Inc., 632 F.2d 880, 884 (8th Cir. 1980), cert. denied, 450 U.S. 921 (1981)
(quoting 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure:
Civil § 2511 (1971)).

       Ford has failed to show any possible prejudice from the decision to use a general
verdict. Specifically, although Ford complains that the general verdict was confusing,
we conclude that the verdict form and the jury instructions were not unclear. In
addition, during closing argument Ford used an overhead projector to further explain
Arkansas' comparative negligence principles. The district court instructed the jury on
Arkansas comparative fault using Arkansas Model Jury Instruction 2115.

       Ford does not complain about the amount of the award. In fact, the amount of
compensatory damages awarded is substantially less than the amount advanced by
Davis. In all likelihood, this reflects the jury allocated some degree of responsibility
to the plaintiff. Ford admitted liability and the evidence presented by Davis showed
damages exceeding $2.5 million. Ford conceded in its brief that the evidence supported
a finding of at least 51% fault against it. (Ford Br. at 20). The record in other respects
indicates that the use of a general verdict did not prejudice Ford.

       In order to determine the amount of compensatory damages needed by Davis to
live with her injury, both parties presented life care plans. The life care plans included
costs for future medical care, medications, therapeutic modalities, durable medical
needs, supplies, home support care, transportation, and architectural renovations but the
plans differed dramatically in cost. Dr. Terry Winkler, a physical rehabilitation



      2
       Of course such ruling is subject to review on appeal. Upon review, the Flanigan
court found no error in the ruling. When this court reviews the decision to use a
general verdict, great deference is afforded the district judge under Rule 49.

                                           -5-
medicine physician certified in the area of life care planning, presented a life care plan
on behalf of Davis, that totaled $2,411,941. Ford presented a life care plan by Des
Rubano, that totaled $1,618,207. Ford also presented a plan based on the assumption
that Davis' condition improved with extensive therapy so that Davis would no longer
need a wheelchair and could return to employment. The cost for the third life care plan
was $529,735.

      Davis had an economist testify that Davis' lost earnings capacity would be
$240,857 based on women with tenth grade educations. Davis' economist combined
the present value of the life care plan by Dr. Winkler, the medical bills and the lost
earnings capacity to find Davis' total economic loss was $2,528,579.

      With compensatory and punitive damages, Davis requested the jury to award her
$6,002,099. In closing argument, Ford suggested that the $3.5 million requested for
compensatory damages was excessive by comparing that amount to the budget for
Ouachita County for 1997 which was $2,700,000. In closing argument, Ford did not
specify any view of reasonable damages.

     In light of the evidence and arguments presented by both parties, the amount of
damages awarded to Davis indicates the jury may have reduced the plaintiff's total
damages by applying comparative negligence principles.

       Ford argues that the district court abused its discretion because there is
overwhelming support for the use of special verdicts interrogatories allocating fault in
comparative fault cases. See Skidmore v. Baltimore & O.R. Co., 167 F.2d 54 (2d Cir.),
cert. denied, 335 U.S. 816 (1948); Russo v. Rifkin, 497 N.Y.S.2d 41 (App. Div. 1985).
Judge Frank in Skidmore called the general verdict "as inscrutable and essentially
mysterious as the judgment which issued from the ancient oracle of Delphi." 167 F.2d
at 60. A New York court in Russo discussing the advantages of a special verdict said:



                                           -6-
       Whatever the acceptability of such determinations [general verdicts] in
       less complicated times, in this era of complex issues and comparative
       fault, the necessity that appellate bodies be provided with some
       illumination of the jury's rationale has been rendered quite acute. In
       providing that illumination, the special verdict has the advantage of
       offering a more precise definition of the jury's finding . . . and it is for that
       reason that the appellate judiciary and legal commentators have repeatedly
       suggested that special verdicts or general verdicts with interrogatories be
       utilized in comparative fault cases.


Russo, 497 N.Y.S.2d at 43 (internal citations omitted).

       We recognize that many courts advocate the use of special verdicts.3
Nevertheless, there is another side to the argument. Judge Henry Woods, previously
a leading Arkansas trial attorney and now an experienced federal district judge in the
Eastern District of Arkansas, states in his treatise on comparative fault:




       3
        Several states require interrogatories or special verdicts in all cases, either by
statute, court rule, or decision. The Uniform Comparative Fault Act requires
interrogatories or special verdicts unless all parties agree to a general verdict. Three
states only allow general verdicts. See Henry Woods & Beth Deere, Comparative
Fault §18:1 (3d ed. 1996).

        Other courts have recognized the overwhelming support of the use of special
verdicts while finding no abuse of discretion in the use of a general verdict. See
Hammerquist v. Clarke's Sheet Metal, Inc., 658 F.2d 1319, 1323 (9th Cir. 1981)
("Mere custom to the contrary does not signal an abuse of discretion."); Railroad
Dynamics, Inc. v. A. Stucki Co., 727 F.2d 1506, 1514-15 (Fed. Cir. 1984) ("When and
if Rules 49, 50, and 51, Fed.R.Civ.P., are repealed, there may be room for the
restriction of juries to a fact finding role and for prohibition of general verdicts in patent
or other types of jury trials. Until that day, a prohibition of general verdicts . . .
cannot be accomplished by judicial fiat.").

                                             -7-
      More than thirty-five years of trial experience under both the pure and
      modified systems of comparative negligence, and having cases submitted
      on both general verdicts and interrogatories have convinced the writer that
      in many cases a general verdict is preferable. Particularly is this true in
      two-party case. Juries have less trouble with a general verdict than with
      interrogatories. It more nearly effectuates their wishes.


Henry Woods & Beth Deere, Comparative Fault §18:1 (3d ed. 1996).

      In Arkansas, most cases are submitted on general verdicts.4 This is true even
when there are multiple parties, cross claims and counterclaims. Judge Woods
describes the use of special verdicts in federal court in the following passage:

             Since the use of special verdicts and interrogatories is procedural,
      the federal courts may use them, regardless of state statutes or practice.
      For instance, interrogatories are sometimes used in comparative
      negligence cases in the Mississippi federal courts, but never in state court.
      As a general rule the federal courts will follow local practice. In Arkansas
      where general verdicts are also widely used in state practice, they are
      widely used in federal practice.


Id. at §18:3.

       Special verdicts are valuable in many cases. However, good reasons may exist
to use a general verdict in some cases. The decision is left to the discretion of the trial
court under Rule 49.




      4
       Like federal courts, Arkansas leaves the decision whether to use a general
verdict to the discretion of the trial court. Hough v. Continental Leasing Corp., 630
S.W.2d 19, 21-22 (Ark. 1982).

                                           -8-
III. CONCLUSION

      The record shows no prejudice to Ford in the use of the general verdict. Under
these circumstances, no abuse of discretion is demonstrated in the use of a general
verdict here. Accordingly, we affirm.

McMILLIAN, Circuit Judge, concurring.

       I concur. I write separately only to encourage the district judges in this circuit
to exercise their discretion to submit special verdicts in civil cases, especially those
involving comparative fault issues. As noted in Skidmore v. Baltimore & O. R.R., 167
F.2d 54, 61 (2d Cir. 1948) (Frank, J.), “the general verdict . . . confers on the jury a
vast power to commit error and do mischief by loading it with technical burdens far
beyond its ability to perform, by confusing it in aggregating instead of segregating the
issues, and by shrouding in secrecy and mystery the actual results of its deliberations.”
Moreover, “when a jury returns an ordinary general verdict, it usually has the power
utterly to ignore what the judge instructs it concerning the substantive legal rules, a
power which, because generally it cannot be controlled, is indistinguishable for all
practical purposes, from a ‘right.’” Id. at 57-58 (footnotes omitted). Special verdicts
would lessen the secrecy and mystery as well as the threat of jury nullification.

      A true copy.


             Attest:


                     CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -9-
