Zander v. Morsette

1

2024 ND 80

Lee Zander individually and as Executor of the Estate of Taylor Goven, deceased; and Lee Zander on behalf of the heirs and next of kin of Taylor Goven, deceased; and Jason Renschler, individually and as Executor of the Estate of Abby Renschler, deceased; and Jason Renschler and Sandra Renschler on behalf of the heirs and next of kin of Abby Renschler, deceased; and Shayna Monson, Plaintiffs and Appellees v. Jordan Morsette, Defendant and Appellant

No. 20230103

Supreme Court of North Dakota

May 2, 2024

Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Daniel J. Borgen, Judge.

REVERSED AND REMANDED.

Monte L. Rogneby (argued), Chad C. Nodland (appeared), Jeffrey S Weikum (appeared), and Thomas A. Dickson (on brief) Bismarck, ND, for plaintiffs and appellees.

Kay N Hunt (argued), Minneapolis, MN, and Michael J. Morley (appeared), Grand Forks, ND, for defendant and appellant.

OPINION

Bahr Justice.

[¶1] Jordan Morsette appeals from a judgment entered after a jury awarded a total of $175 million of noneconomic damages to Shayna Monson; Lee Zander, individually and on behalf of Taylor Goven, deceased; and Jason and Sandra Renschler, individually and on behalf of Abby Renschler, deceased ("Plaintiffs"), and from an order denying his motion for new trial. Morsette argues he is entitled to a new trial because Plaintiffs improperly referred to alcohol at the trial on remand, despite this Court's prior ruling that evidence relating to his intoxication is not admissible; because the damages award is excessive; and because the jury improperly speculated as to the damages. We reverse and remand for further proceedings consistent with this opinion.

I

[¶2] In June 2015, while driving on the wrong side of the road, Morsette's vehicle collided head on with Monson's vehicle on the Bismarck Expressway. Monson suffered serious bodily injuries; Goven and Renschler died at the crash scene. Plaintiffs subsequently brought this automobile negligence action against Morsette. Morsette answered and admitted liability for the collision. The district court held a jury trial in 2019 to decide the amount of Plaintiffs' compensatory damages. The jury subsequently awarded Plaintiffs, collectively, $242 million in noneconomic compensatory damages and $895 million in punitive damages.

[¶3] After the jury's verdict in Plaintiffs' favor awarding compensatory damages and punitive damages, Morsette appealed. Zander v. Morsette, 2021 ND 84, 959 N.W.2d 838. In Zander, this Court reversed and remanded, holding the district court erred in admitting evidence of Morsette's intoxication when liability was admitted, erred in failing to instruct the jury it could not award compensatory damages to punish Morsette, and erred in allowing a claim for punitive damages. Id. at ¶¶ 17, 26, 33. We reversed and remanded for a new trial on Plaintiffs' compensatory damages. Id. at ¶ 34.

[¶4] On remand, the district court held another jury trial. The sole issue at trial was Plaintiffs' noneconomic damages. The jury returned a verdict awarding a total of $175 million in noneconomic damages. Specifically, the jury awarded Plaintiff Shayna Monson $10,000,000 in past noneconomic damages and $65,000,000 in future noneconomic damages, and awarded to each of the Goven and Renschler Plaintiffs $10,000,000 in past noneconomic damages and $40,000,000 in future noneconomic damages. The court entered a judgment.

[¶5] Morsette moved for a new trial, which Plaintiffs opposed. The district court denied his motion.

II

[¶6] Morsette moved the district court for a new trial under N.D.R.Civ.P. 59(b)(1), (3), (5), (6), and (7), arguing a new trial was required because there were improper references to alcohol at the trial on remand, the jury was asked to speculate on damages, and the jury awarded excessive damages. Rule 59(b), N.D.R.Civ.P., allows the court to grant a new trial on grounds "materially affecting" the moving party's "substantial rights":

The court may, on motion of an aggrieved party, vacate the former verdict or decision and grant a new trial on any of the following grounds materially affecting the substantial rights of the party:

(1) irregularity in the proceedings of the court, jury, or adverse party, or any court order or abuse of discretion that prevented a party from having a fair trial;

.... (3) accident or surprise that ordinary prudence could not have guarded against; ....

(5) excessive damages appearing to have been awarded under the influence of passion or prejudice, but when a new trial is requested on this ground and it appears that the passion or prejudice affected only the amount of damages awarded and did not influence the jury's findings on other issues in the case, the district court, on hearing the motion, and the supreme court, on appeal, may order a reduction of the verdict instead of a new trial or order that a new trial be had unless the prevailing party remits the excess damages; (6) insufficient evidence to justify the verdict or other decision, or that the verdict is against the law;

(7) errors in law occurring at trial and, when required, objected to by the moving party; ....

[¶7] We review the district court's decision on a new trial motion under the abuse of discretion standard. Zander, 2021 ND 84, ¶ 7; Rentz v. BNSF Ry. Co., 2020 ND 254, ¶ 12, 952 N.W.2d 47. A court abuses its discretion when it acts in an arbitrary, unconscionable, or unreasonable manner, when it misinterprets or misapplies the law, or when its decision is not the product of a rational mental process leading to a reasoned determination. Zander, at ¶ 7.

III

[¶8] Morsette argues he is entitled to a new trial because Plaintiffs improperly referred to alcohol during the trial on remand despite this Court's ruling that alcohol was not relevant.

[¶9] In Zander, 2021 ND 84, ¶ 17, this Court held evidence of Morsette's intoxication was not relevant under N.D.R.Ev. 402. We therefore concluded the district court abused its discretion in admitting evidence of Morsette's intoxication because Plaintiffs are precluded from recovering damages resulting from his intoxication. Zander, at ¶ 17. In reversing and remanding for a new trial on compensatory damages, we held the court's "admission of the irrelevant evidence of Morsette's intoxication and the failure to instruct the jury they could not award punitive damages in the compensatory damages phase of trial were prejudicial errors that affected Morsette's substantial rights." Id. at ¶ 26. Based on our review of the entire record, we could not conclude the court's errors were harmless. Id.

[¶10] Morsette again contends he is entitled to a new trial because, despite this Court's prior holding evidence relating to his intoxication is not admissible, a Highway Patrol officer volunteered in his testimony information about alcohol use and one of Plaintiffs' counsel referred to alcohol during closing argument.

[¶11] During the second day of the trial on remand, a Highway Patrol officer testified:

Q: How are you doing?

A: Well, this is an interesting crash because most everybody that was out at the scene has daughters or children of their own, and we teach our kids to do exactly what they did. The individuals that died in this crash had been drinking and none of them were driving. The individual that was driving-

Q: No. No. Thank you.

MR. MORLEY: Your Honor, I object to the reference. Move to strike.

MR. DICKSON: I understand.

THE COURT: Granted. Yes, that sustained.

MR. DICKSON: I would withdraw the question, too, Your Honor.

Outside of the jury's presence, Morsette's counsel moved for a mistrial arguing the officer's testimony, whether inadvertent or not, was prejudicial. The district court denied the motion for mistrial.

[¶12] Additionally, during Plaintiffs' closing arguments, one of Plaintiffs' counsel provided the following "example" to illustrate probable cause specifically relating to drunk driving:

We have four burdens of proof in North Dakota. The lowest burden is probable cause. If you're driving home Saturday night, you cross the center line, you smell of alcohol, that's enough evidence to get you arrested.

Morsette's counsel immediately objected, stating the following grounds, "Well, prior rulings of the Court and no evidence. The Court has ruled. We object." After a bench conference, not recorded in the transcript, Plaintiffs' counsel resumed his closing argument regarding the probable cause burden of proof but omitted any reference to alcohol.

[¶13] After the district court submitted the case to the jury and the jury retired for deliberation, Morsette's counsel renewed his objection to the closing argument and again moved the court for a mistrial, arguing Plaintiffs' counsel "deliberately violated the remand order of the North Dakota Supreme Court that alcohol is not to be in evidence or a part of this case. And this Court also ruled at pretrial that alcohol was not to be considered in this case for anything." The court again denied Morsette's motion for mistrial, stating:

I understand the argument . . . but there was no evidence at all presented to the jury that your client had any alcohol in his system at all when this accident occurred. We followed that order from the Supreme Court.

That probable cause burden of crossing the line for an officer to stop someone is pretty standard. It's the most common reason for anyone to be stopped in North Dakota. It's the one most people can relate to.

I don't believe that [Plaintiffs' counsel] would intentionally sabotage his own case, because if that were an intentional act and the Court would rule that way, he knows that the sanction on that would be severe, and I don't believe for a second he would do that in

...