Remittitur in Diversity Action is Governed by State Law — Expert with Training but No Practical Experience Still Qualified to Opine

From Mississippi Phosphates Corp. v. Analytic Stress Relieving, Inc., 402 Fed. Appx. 866 (5th Cir. 2010):

A. Remittitur ***

We review a denial of new trial or remittitur for abuse of discretion. Foradori v. Harris, 523 F.3d 477, 497-98 (2008). In Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996), the Supreme Court held that "in an action based on state law but tried in federal court by reason of diversity of citizenship, a district court must apply a new trial or remittitur standard according to the state's law controlling jury awards for excessiveness or inadequacy, and appellate control of the district court's ruling is limited to review for 'abuse of discretion.'" Foradori, 523 F.3d at 497-98 (citations omitted); see also Gasperini, 518 U.S. at 419, 438-39 (citations omitted). In accordance with Gasperini and our precedent in Foradori, "we must review the district court's decision applying the . . . Mississippi new trial/remittitur standard to the evidence in this case to determine whether the district court abused its discretion." Foradori, 523 F.3d at 498. Because "trial judges have the unique opportunity to consider the evidence in the living courtroom context, . . . while appellate judges see only the cold paper record . . . [, w]e must give the benefit of every doubt to the judgment of the trial judge." Gasperini, 518 U.S. at 438-39 (internal quotations and citations omitted); Foradori, 523 F.3d at 498 (internal quotations and citations omitted). "'When the trial judge has refused to disturb a jury verdict, all the factors that govern our review of his decision favor affirmance.'" Foradori, 523 F.3d at 504 (quoting Shows v. Jamison Bedding, Inc., 671 F.2d 927, 930 (5th Cir. 1982)). ***

A remittitur is an "order awarding a new trial, or a damages amount lower than that awarded between those alternatives . . . ." Black's Law Dictionary 1321 (Bryan A. Garner, 8th ed. 1999). Thus, before a court may order a remittitur, "it must first determine that new trial is warranted." Foradori, 523 F.3d at 503. "Except in those cases in which it is apparent as a matter of law that certain identifiable sums included in the verdict should not have been there, the court may not reduce the amount of damages without giving the plaintiff the choice of a new trial, for to do so would deprive the parties of their constitutional right to a jury." Id. (citations omitted). ***

B. Expert Testimony ***

Rule 702 provides that a district court may allow an expert witness to testify if he has the requisite "knowledge, skill, experience, training or education." Fed. R. Evid. 702 (emphasis added). A witness can therefore be qualified as an expert "even though he lacks practical experience, provided that he has received suitable training or education or has otherwise gained the requisite knowledge or skill." Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167, 176-77 (5th Cir. 19__), abrogated on other grounds by Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994).

Though the district court recognized that Dr. Clarke had limited "practical, hands-on experience" with post-weld heat treatment, the district court nonetheless found him qualified on the basis of his education and his experience as a full-time practicing consulting engineer: an undergraduate, graduate, and doctorate degree in various areas of metallurgy and metallurgical engineering; four undergraduate courses that covered topics in heat treatment and two graduate courses that related specifically to heat treatment of metals; a course "which would get deeply into heat treatment" given that "heat treatment is a broad subject, for which post-weld is one portion"; and past consulting projects involving welding and high-temperature, thermal movement. We find no manifest error here in the district court's decision not to exclude Dr. Clarke's testimony on post-weld heat treatment and the industry standard of care, and thus affirm his decision to deny Analytic Stress's Renewed Motion for Judgment as a Matter of Law.

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