OSBURN v. ANCHOR LABORATORIES, INC., 825 F.2d 908 (5th Cir. 1987)

CLOIS OSBURN AND ANITA OSBURN, PLAINTIFFS-APPELLEES, v. ANCHOR LABORATORIES, INC., DEFENDANT, RACHELLE LABORATORIES, INC., DEFENDANT-APPELLANT.

No. 86-1094.United States Court of Appeals, Fifth Circuit.
August 28, 1987.

Page 909

G. Luke Ashley, Thompson Knight, Dallas, Tex., for defendant-appellant.

Dale D. Williams, Rod S. Squires, Williams, Pattillo Squires, Waco, Tex., for plaintiffs-appellees.

Page 910

Appeal from the United States District Court for the Western District of Texas.

Before WISDOM, RUBIN, and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

[1] In this Texas law diversity case, plaintiffs-appellees Clois Osburn and Anita Osburn (Osburns) sued Anchor Laboratories, Inc. (Anchor) and Rachelle Laboratories, Inc. (Rachelle) for personal injuries under negligence and strict products liability theories. The Osburns alleged that due to the defendant drug manufacturers’ failure to warn Mr. Osburn of the dangers to persons administering veterinary chloramphenicol and their failure to give him adequate instructions for its use, Mr. Osburn contracted leukemia. Answering special interrogatories, the jury found the defendants liable under both theories. The district court entered judgment on the verdict in favor of the Osburns. Rachelle appeals, claiming that federal law preempts the Osburns’ tort claims for failure to warn, that the “learned intermediary” doctrine absolved it of any duty to warn Mr. Osburn directly, that the Osburns failed to prove causation, and that newly discovered evidence and an excessive damages award require a new trial, or, alternatively with respect to the excessiveness complaint, a remittitur.

[2] Facts and Proceedings Below
[3] When Clois Osburn was diagnosed as having leukemia, he was forty-two years old. For almost the entirety of his adult life, he had worked as a cowboy in the Texas panhandle, often caring for sick cattle and horses. In September 1982, Osburn obtained from Dr. Swain a prescription for veterinary chloramphenicol oral solution, which he immediately began administering daily to the sick calves he was caring for. Over the following eighteen months, he used ten to thirteen cases of chloramphenicol, each containing six sixteen-ounce bottles of the antibiotic. Of this total, two or three cases consisted of chloramphenicol produced by Anchor and the other eight to ten cases were of Mychel-Vet, the brand name for Rachelle’s version of the drug.

[4] Since the chloramphenicol came in plastic capped bottles into which a needle could not be inserted, each morning Osburn poured several bottles of the drug from their original bottles into other, same sized bottles with injectable rubber lids. These he carried in a medicine bag on his horse’s saddle to pastures where the calves grazed. To administer the drug, Osburn straddled the sick animal, inserted a syringe into the rubber lid of a bottle containing chloramphenicol, filled it, and injected the calf with a 60cc syringe-full dose of the drug. In the process of filling the syringe, chlorampenicol leaked from previously-made syringe holes in the rubber lid. The chloramphenicol often ran down Osburn’s hand and arm, getting into scratches and cuts on his arm. Osburn recalled that on one occasion so much of the drug got into a rope burn on his arm that he could taste its bitterness in his mouth. Osburn wore leather gloves on the job, and testified that by the end of each day the gloves were soaked through with chlorampenicol. [5] In February 1984, Osburn visited his family physician (Dr. Harlow), who detected a large knot near Osburn’s spleen. Dr. Harlow hospitalized Osburn, performed tests, and tentatively diagnosed Osburn’s condition as leukemia. Later that month Osburn underwent further tests, including a bone marrow biopsy, at the direction of oncologist Dr. Karim Nawaz. On February 28, 1984, Dr. Nawaz confirmed Dr. Harlow’s diagnosis of leukemia, giving Osburn the specific diagnosis of chronic myelogenous leukemia. The doctors informed Osburn that from the date of diagnosis he could expect to live two to five years. [6] On August 8, 1984, the Osburns filed this suit against Anchor and Rachelle. Subsequently, Anchor and Rachelle filed cross-claims against each other for contribution. The defendants then impleaded Dr. Jack Swain, the veterinarian from whom Osburn obtained the chloramphenicol, demanding indemnity and contribution. Shortly before

Page 911

trial, the Osburns reached a settlement agreement with Anchor and Dr. Swain.[1]

[7] The Osburns tried their case against Rachelle on December 2-6, 1985. Rachelle’s motion for directed verdict at the close of all the evidence was denied. Answering special interrogatories, the jury found that Rachelle had failed to provide adequate warnings to Mr. Osburn regarding the risk of fatal blood disorders from absorption of chloramphenicol, that this failure was a producing (and proximate) cause of Osburn’s leukemia, and, therefore, that Rachelle was liable under both strict products liability and negligence theories. Pursuant to the district court’s instruction that if it found Rachelle liable, then as a matter of law Anchor was also liable, the jury apportioned causation at eighty-five percent attributable to Rachelle and fifteen percent attributable to Anchor. The jury awarded $2,500,000 damages to Clois Osburn and $500,000 damages to Anita Osburn. The district court entered judgment for the Osburns against Rachelle, awarding all damages minus the fifteen percent attributable to Anchor. Rachelle moved for judgment notwithstanding the verdict, and for new trial or, alternatively, a remittitur. The district court denied these motions and this appeal followed.

[8] Discussion[9] I. Preemption[10] A. Preemption principles
[11] Preemption doctrine finds its roots in the supremacy clause of the Constitution, which mandates that federal law shall be the “supreme Law of the Land.” U.S. Const. art. VI, cl. 2. The Supreme Court has long interpreted this clause to authorize Congress to enact laws under its enumerated powers that preempt state laws governing the same subject. Gibbons v. Ogden,
22 U.S. (9 Wheat.) 1, 210-11, 6 L.Ed. 23 (1824). State common law as well as state statutes and regulations can be preempted by federal law. See, e.g., Chicago N.W. Transp. Co. v. Kalo Brick Title Co., 450 U.S. 311, 101 S.Ct. 1124, 67 L.Ed.2d 258
(1981).

[12] Preemption occurs in two general contexts. When Congress evidences, either expressly or inferentially through the comprehensiveness of the federal regulatory scheme, an intent to totally occupy a given field, state law falling within that field is preempted. Alternatively, even if Congress has not entirely displaced state regulation in an area, any state law that actually conflicts with federal law is preempted. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984); Pacific Gas Elec. Co. v. State Energy Resources Conservation Dev. Comm’n, 461 U.S. 190, 103 S.Ct. 1713, 1722, 75 L.Ed.2d 752 (1983). Such a conflict arises when “compliance with both federal and state regulations is a physical impossibility,” Florida Lime Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), or
where state law “stands as an obstacle to the accomplishment of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 401, 85 L.Ed. 581 (1941) quoted in Silkwood, 104 S.Ct. at 621. [13] B. Rachelle’s argument
[14] In this case, Rachelle argues that the Food, Drug and Cosmetic Act (FDCA),[2] 21 U.S.C. §§ 301–392, and the Food and Drug Administration’s (FDA) implementing regulations governing veterinary prescription drug labeling, see 21 C.F.R. §§ 201.105, 514.1-514.8, preempt the Osburns’

Page 912

state common-law tort claims based upon failure to warn. According to Rachelle, a direct conflict exists between the FDCA and the Osburns’ tort claim under Texas law because it is impossible for Rachelle to comply with both the FDA labeling requirements and the state law duty to warn.[3] Rachelle bases this argument on an FDA regulation, 21 C.F.R. § 201.105, which in the case of veterinary chloramphenicol requires, as part of the manufacturer’s new animal drug application, a label approved by the FDA. Specifically, Rachelle argues that because the FDA regulation required it to use an FDA-approved label in order to escape criminal liability under the FDCA for dispensing a “misbranded” drug, it could not simultaneously comply with Texas tort law obligations that presumably mandated more extensive warnings than those provided in Rachelle’s FDA-approved chloramphenicol label.

[15] We find this argument unpersuasive in the present context. Unlike the FDA regulations for some products, the regulations pertaining to veterinary chloramphenicol did not set forth a particular mandatory label. Instead, the regulations required Rachelle to submit a proposed label of its own choosing, which the FDA would then approve or reject. See 21 C.F.R. Part 514
(New Animal Drug Applications); id. § 514.2(b)(3)(iii). Of special significance is the fact that the FDA regulations specifically permitted Rachelle to add additional warnings to a previously approved label as soon as it became aware of the necessity to do so — without any need to first obtain FDA approval of the supplemental warnings. 21 C.F.R. § 514.8.[4]
The FDA regulations thus did not prevent Rachelle from adding to its label warnings of the dangers of fatal blood diseases associated with exposure to chloramphenicol as soon as it learned of such dangers.[5] We therefore

Page 913

conclude that federal law neither made it practically (nor legally) impossible, nor would it have posed an obstacle to accomplishing the objectives of the FDCA, for Rachelle to give warnings that would have satisfied its duty under Texas law. Since Rachelle has not convinced us that the FDA regulations actually conflict with its duty to warn under Texas law, or that Congress intended to exclusively occupy the field presented by the Osburns’ claims, we reject Rachelle’s preemption challenge.

[16] II. Scope of Rachelle’s Duty to Warn
[17] Rachelle’s second argument is that the district court erroneously instructed the jury that Rachelle had a duty under Texas law to warn “lay users,” such as Osburn, of the dangers associated with chloramphenicol. According to Rachelle, since veterinary chloramphenicol is a “prescription drug” (i.e., a drug available only from veterinarians), under the “learned intermediary” doctrine Rachelle’s duty to warn ran only to the prescribing veterinarian. This doctrine, recognized by Texas courts, provides that “when a [prescription] drug manufacturer properly warns a prescribing physician of the dangerous propensities of its product, the manufacturer is excused from warning each patient who receives the drug.” Alm v. Aluminum Co. of America, 717 S.W.2d 588, 591 (Tex. 1986); see also Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1275-76 (5th Cir.), cert. denied, 419 U.S. 1096, 95 S.Ct. 687, 42 L.Ed.2d 688 (1974) Gravis v. Parke-Davis Co., 502 S.W.2d 863, 870 (Tex.Civ.App. — Corpus Christi 1973, writ ref’d n.r.e.). The manufacturer’s duty is satisfied because the doctor is expected to be a “learned intermediary,” communicating between the manufacturer and the consumer. Koonce v. Quaker Safety Prods. Mfg. Co., 798 F.2d 700, 717 (5th Cir. 1986); Reyes, 498 F.2d at 1276. However, as the Texas Supreme Court has recently emphasized, the “mere presence” of an intermediary does not excuse the manufacturer of its duty to warn ultimate users; “[t]he issue in every case is whether the original manufacturer has a reasonable assurance that its warning will reach those endangered by the use of the product.” Alm, 717 S.W.2d at 591. [18] We do not think Texas courts would apply this doctrine in the case before us. In the prescription drug context, the rationale underlying the learned intermediary doctrine is that by virtue of his medical expertise, a physician has knowledge not only of the dangerous propensities of drugs, but also of the particular “susceptibilities of his patient[s].” Reyes, 498 F.2d at 1276. The doctrine therefore applies to some extent because the doctor, armed with such knowledge, is able to make an informed choice about whether to prescribe a drug to a particular patient and about what risks should be communicated to that patient. [19] Although a veterinarian receives training in pharmacology, his “patients” are animals rather than humans. A veterinarian, therefore, can be expected to have knowledge of the particular susceptibilities of the animals he treats, or of animals
generally, but not of those of persons, by definition not under his care, either in general or who happen to obtain from the veterinarian a prescription drug to be used in treatment of an animal. Hence, it may have been reasonable for Rachelle to expect Dr. Swain to have particular expertise and knowledge concerning the dangers to animals involved in the use of chloramphenicol and thus to communicate those dangers to persons who will directly administer the drug to an animal. But it seems unreasonable to expect a veterinarian such as Dr. Swain to have the medical expertise necessary to make him in all instances a “learned” intermediary with regard to dangers to humans who are exposed to a drug in the process of administering it to animals.[6] At least this is so where, as here,

Page 914

the drug is properly dispensed for subsequent use by animal owners away from the direct supervision of the prescribing veterinarian.[7] We therefore reject Rachelle’s argument that the learned intermediary doctrine should apply and, consequently, its challenge to the district court’s instructions regarding the scope of Rachelle’s duty to warn.

[20] III. Sufficiency of Causation Evidence[21] A. Standard of review
[22] Another of Rachelle’s arguments is that the testimony offered by the Osburns’ medical experts was legally insufficient to support the jury finding that Mr. Osburn’s leukemia was caused by his exposure to chloramphenicol. [23] Even though this is a diversity case, a federal rather than a state law standard governs the determination whether sufficient evidence was presented to defeat a motion for directed verdict See Boeing Co. v. Shipman, 411 F.2d 365, 368-69 (5th Cir. 1969) (en banc). Under the Boeing standard, a federal court is required to look at all the evidence presented, to view it in the light most favorable to the nonmoving party, and to draw all reasonable inferences in that party’s favor. Id. at 374. The motions should be denied if “substantial evidence” opposes them, “that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions.” Id. Therefore, unless the evidence pointed so strongly and overwhelmingly in favor of Rachelle that reasonable persons could not arrive at a contrary verdict, the district court was obligated to deny Rachelle’s motions. On appeal we apply the same standard. See, e.g., Dawsey v. Olin Corp., 782 F.2d 1254, 1261 (5th Cir. 1986). [24] B. Causation evidence
[25] Rachelle acknowledges that chloramphenicol is known to produce toxic effects on blood, including suppression of blood-forming activity in the bone marrow (aplastic anemia) and uncontrollable growth of abnormal blood cells (leukemia). Rachelle contends, however, that available scientific data has shown that chloramphenicol causes leukemia only where it has first caused aplastic anemia. In this case, Osburn was never diagnosed as having aplastic anemia, but approximately eighteen months after he began administering chloramphenicol to cattle, he received a diagnosis of chronic myelogenous leukemia. From this absence of a diagnosis of aplastic anemia, Rachelle draws the conclusion that Osburn did not have the disease and, therefore, that since there is no generally accepted theory in the medical community that chloramphenicol can cause leukemia without first causing aplastic anemia, there was insufficient evidence that exposure to chloramphenicol caused Osburn’s leukemia. [26] After reviewing the record in the light most favorable to the Osburns, as Boeing requires, we conclude that reasonable persons could find that exposure to chloramphenicol caused Osburn’s leukemia. The evidence reflected that Osburn had been in good health until shortly before his initial 1984 leukemia diagnosis and had no known exposure to other agents thought to be possible causes of leukemia. July 1980 blood tests were normal. The Osburns presented two well-qualified medical experts who testified at length about causation.[8] These physicians, Dr. Benowitz and

Page 915

Dr. Comstock, testified that, in their opinion, chloramphenicol-induced leukemia need not be preceded by aplastic anemia. Both doctors also gave the opinion that, to a reasonable degree of medical certainty, Osburn’s leukemia was caused by his exposure to veterinary chloramphenicol.[9]

[27] Rachelle does not challenge the qualifications of these experts nor the admissibility under the Federal Rules of Evidence of their opinions about causation. Rachelle merely argues that because the notion that chloramphenicol can cause leukemia without first causing aplastic anemia has not been widely accepted in the medical field, the opinions of the Osburns’ experts that Mr. Osburn’s leukemia was caused by exposure to chloramphenicol provide insufficient evidence of causation. [28] This argument misses the point. An expert’s opinion need not be generally accepted in the scientific community before it can be sufficiently reliable and probative to support a jury finding See Wells v. Ortho Pharmaceutical Corp., 788 F.2d 741, 744-45
(11th Cir.), cert. denied, ___ U.S. ___, 107 S.Ct. 437, 93 L.Ed.2d 386 (1986); Ferebee v. Chevron Chem. Co., 736 F.2d 1529, 1535 (D.C. Cir.), cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984); Marder v. G.D. Searle Co., 630 F. Supp. 1087, 1093-94 (D. Md. 1986). What is necessary is that the expert arrived at his causation opinion by relying upon methods
that other experts in his field would reasonably rely upon in forming their own, possibly different opinions, about what caused the patient’s disease. See generally Fed.R.Evid. 703; Barrel of Fun, Inc. v. State Farm Fire Cas. Co., 739 F.2d 1028 (5th Cir. 1984). Thus, medical expert opinion testimony that is controversial in its conclusions can support a jury finding of causation as long as the doctor’s conclusory opinion is based upon well-founded methodologies. Ferebee, 736 F.2d at 1535.[10] [29] The medical experts’ opinions in this case meet this requirement. In reaching the opinion that Osburn’s exposure to chloramphenicol caused his leukemia, the Osburns’ medical experts relied upon their particular areas of expertise, the characteristics of Mr. Osburn’s individual case, as presented in his medical records, and scientific studies and case histories reported in the generally accepted medical literature that suggested an association between chloramphenicol and blood disorders, including

Page 916

leukemia.[11] These are methodologies concededly relied upon generally by physicians in diagnosing etiology of a particular patient’s disease. See, e.g., Wells, 788 F.2d at 744-45; Ferebee, 736 F.2d at 1535-36.

[30] Rachelle of course introduced its own experts, who were of the view that Mr. Osburn’s leukemia was not caused by chloramphenicol, but the testimony of those witnesses was not so overwhelming that the jury had to accept it. Rachelle’s experts relied on essentially the same diagnostic methodologies; they simply drew the opposite conclusion from the available information. The case thus presented a bona fide “battle of the experts” — real, not merely testifying, experts who applied their true expertise — in which a jury must be allowed to make credibility determinations and weigh the conflicting evidence in order to decide the likely truth of a matter not itself initially resolvable by common knowledge or lay reasoning. Ferebee, 736 F.2d at 1535; accord Wells, 788 F.2d at 745.[12] We therefore reject Rachelle’s challenge to the sufficiency of the evidence concerning causation.[13]

Page 917

[31] IV. Newly Discovered Evidence
[32] Rachelle next complains that the district court erroneously denied its motion for new trial, which it asked for on the basis of newly discovered evidence. Pursuant to Rules 59 and 61 of the Federal Rules of Civil Procedure, the district court has discretion to grant a new trial on this ground.[14] Johnston v. Lucas, 786 F.2d 1254, 1257 (5th Cir. 1986); La Fever, Inc. v. All-Star Ins. Corp., 571 F.2d 1367, 1368 (5th Cir. 1978). We will not disturb the denial of such a motion unless we find a clear abuse of that discretion. La Fever, 571 F.2d at 1368. We have said that in deciding whether to grant such a motion, the district court should “consider whether the new facts (1) would probably change the outcome; (2) could have been discovered earlier with due diligence; and (3) are merely cumulative or impeaching.” Johnston, 786 F.2d at 1257; see also La Fever, 571 F.2d at 1368; English v. Mattson, 214 F.2d 406, 409 (5th Cir. 1954). [33] The evidence in question here consists of medical records and affidavits from two physical examinations Osburn underwent in the summer of 1981 in order to obtain an ICC truck driver’s permit. The records indicate that, in contradiction to Osburn’s trial testimony that the physicians who examined him for the permit found his blood count to be normal, no blood tests were performed during these 1981 examinations. According to Rachelle, because Dr. Benowitz relied on Osburn’s inaccurate testimony about the results of those physicals in reaching his opinion on causation, the subsequently discovered evidence “would probably have changed the outcome” of the trial. [34] Osburn’s testimony of normal blood counts in 1981 was introduced to show that it was improbable that Osburn had contracted leukemia prior to his exposure to the chloramphenicol in 1982, and thus that nothing in Osburn’s history suggested his leukemia was caused by something other than chloramphenicol. The absence of any evidence suggesting an “other cause” was stated by Dr. Benowitz to be one of the factors he considered in reaching his causation opinion; however, we do not think Dr. Benowitz would have changed his conclusion that no other causes were apparent had he known that no blood tests were performed on Osburn in 1981. The 1981 test results were just pieces of information that, combined with all the other facts that made up Osburn’s medical history, led Dr. Benowitz to this conclusion. The record also contained evidence, for example, indicating that blood tests performed in July 1980 were normal and that Osburn had no known exposure to any other chemicals thought to be associated with leukemia. The medical evidence of record also reflected that Osburn was in good health until shortly before he was diagnosed with leukemia in February 1984. Rachelle has thus not convinced us that the district court abused its discretion in determining that the new evidence was not such as would probably have changed the jury’s verdict. Accordingly, we conclude that Rachelle’s challenge to the district court’s denial of its new trial motion lacks merit. [35] V. Damages[36] A. Period of loss of wage earning capacity
[37] The jury awarded Mr. Osburn a lump-sum verdict of $2,500,000. Rachelle challenges this award on two separate grounds. Rachelle first contends that because the evidence indicated Osburn had a life expectancy of only two to five years

Page 918

from date of diagnosis, the jury could not properly have awarded more than $50,000 at the very most for past and future loss of wage earning capacity. According to Rachelle, future loss of earning capacity must be calculated on the basis of actual life expectancy, given the injuries sued for, not on the basis of preinjury work life expectancy. Although this argument has some surface appeal, we find it ultimately unpersuasive.

[38] In support of its argument, Rachelle cites a single Texas case, which held that plaintiffs suing under the Texas “survival statute” could recover for the decedent’s lost earning capacity (and other damages) only through the date of his death. See Norman v. Valley Gin Co., 99 S.W.2d 1065 (Tex.Civ.App. 1936, writ ref’d). According to Rachelle, the Texas rule for survival actions, which allow heirs to recover damages an injured party would have been entitled to recover had he lived, see id. at 1067, should apply equally to Osburn’s claim for loss of future earning capacity. [39] We disagree. The reason that recovery in a survival action is limited to injuries suffered by the decedent only through the date of his death is that as of that date recovery is governed instead by the wrongful death action, which takes over and allows recovery for injuries suffered by the heirs as a result of the decedent’s death. Id. at 1067 (reaching this conclusion on the basis of statutory ancestors to the current Texas wrongful death and survivorship action statutes); Tex.Civ.Prac. Rem. Code Ch. 71 (Vernon 1986); accord 4 F. Harper, F. James O. Gray, The Law of Torts § 24.6 at 474 n. 12, and § 25.16 at 612-14 (2d ed. 1986). In contrast, the “prevailing American rule” is that when the plaintiff is the injured party himself (i.e., when trial occurs before the injured party dies), he can recover lost earning capacity on the basis of work life expectancy at the time of his injury “undiminished by any shortening of that expectancy as a result of the injury.” 4 F. Harper, F. James O. Gray supra, § 24.6, at 475 (emphasis in original); see also id. § 25.8, at 551-52 n. 9; C. McCormick, Handbook on the Law of Damages 303 (1935). [40] No Texas case has expressly articulated this distinction, but it is consistent with Texas case law.[15] Since we see no reason why Texas would deviate from other jurisdictions in this regard, we assume the Texas Supreme Court would follow the majority rule. Consequently, we conclude that the jury was entitled to calculate Osburn’s loss of future earning capacity on the basis of the life expectancy Osburn would have had if he had not contracted leukemia.[16] [41] B. Excessiveness of damages
[42] Finally, Rachelle attacks the jury’s unitemized damage awards to the Osburns as excessive. The established rule in this Circuit is that we will not disturb a jury verdict for excessiveness except on the strongest of showings. E.g., Johnson v. Michelin Tire Corp., 812 F.2d 200, 207 (5th Cir. 1987); Caldarera v. Eastern Airlines, Inc., 705 F.2d 778, 784 (5th Cir. 1983). We have described the degree of excessiveness necessary for judicial intervention as an award so large “`as to be contrary to right reason,’ so exaggerated as to indicate `bias, passion, prejudice, corruption, or other improper motive,’ or as `clearly exceeding[ing]

Page 919

that amount that any reasonable man could feel the claimant is entitled to.'” Caldarera, 705 F.2d at 784 (emphasis in original; citations omitted).

[43] In this case, the jury’s general damage award of $2,500,000 to Mr. Osburn included the following elements: past and future loss of wage earning capacity, past medical expenses, physical pain and suffering, loss of physical capacity other than wage earning capacity, and mental anguish. We find that based on the evidence in this record, $2,500,000 exceeds the amount the jury could properly have awarded. [44] Having determined that the award is excessive, we can either order a new trial on damages or allow plaintiffs the option of avoiding such a new trial by agreeing to a remittitur of the excessive portion of the award. De Centeno v. Gulf Fleet Crews, Inc., 798 F.2d 138, 142 (5th Cir. 1986); Wells v. Dallas Indep. School District, 793 F.2d 679, 683-84 (5th Cir. 1986). This Court follows the maximum recovery rule, according to which remittitur can reduce a damages award only to “the maximum amount the jury could properly have awarded.” Zeno v. Great Atlantic Pacific Tea Co., 803 F.2d 178, 181 (5th Cir. 1986); Caldarera, 705 F.2d at 784. Where the district court used a general verdict interrogatory and instructed on several elements of damages, it is sometimes impossible to determine the reason the verdict was excessive. In that event, an appellate court may elect to grant a new trial without providing the option of remittitur. See Gautreaux v. Insurance Company of North America, 811 F.2d 908
(5th Cir. 1987); De Centeno, 798 F.2d at 143; In re Aircrash Disaster (Eymard v. Pan Am. World Airways), 795 F.2d 1230, 1235-36 (5th Cir. 1986). [45] In this case, however, we think a mandatory new trial on damages is unnecessary and that a remittitur is preferable. The jury verdict separated Mr. and Mrs. Osburn’s damages. Although Mr. Osburn’s award lumped together a number of elements, the amount the jury could properly have awarded — and very likely did award — for loss of earning capacity and past medical expenses can be easily calculated on the basis of the evidence in the record.[17] Under the facts of this case, the other damages items upon which the jury was instructed — pain and suffering, mental anguish, and loss of physical capacity — are somewhat amalgamated by their very nature. For purposes of applying our maximum recovery rule, we are therefore able to consider them together. Since we can determine the proper amount for a remittitur in this case despite the district court’s failure to submit special interrogatories to the jury on the individual items of damages, we elect not to require a new damages trial. [46] 1. Damages for loss of earning capacity and medical expenses
[47] The uncontroverted evidence indicates that for the roughly two-year period between diagnosis and trial, Mr. Osburn lost one-half of his $20,000 annual earning capacity. He thus incurred a past loss of earning capacity totaling $20,000. On the basis of Osburn’s twenty-year work life expectancy and $20,000 a year earning history, his future earning capacity can be estimated at $400,000.[18] Using a two percent below market discount rate in accordance with Culver v. Slater Boat Co., 722 F.2d 114 (5th Cir. 1983) (en banc), cert. denied, 469 U.S. 819, 105 S.Ct. 90, 83 L.Ed.2d 37 (1984) (Culver II), the present value of Osburn’s future loss of earning capacity totals approximately (though slightly less than) $330,000. Adding to this figure the $20,000 for past lost earnings yields a sum of $350,000. Thus, we find that the maximum award permissible under the evidence

Page 920

for loss of past and future wage earning capacity is $350,000.

[48] As the parties concede, the evidence also indicates that at the time of trial Osburn had paid $6,700 in medical expenses. No evidence was submitted regarding probable medical expenses in the future, and the jury was not instructed to consider that element of damages. The jury could therefore properly have awarded a maximum of $6,700 for medical expenses. [49] 2. Pain and suffering, anguish, loss of physical capacity
[50] Subtracting the above amounts from the jury’s $2,500,000 award leaves $2,143,300. We cannot be certain that the jury awarded exactly the maximum permissible for earnings and medical expenses, although on this record it is very likely that it at least came quite close to doing so. However, we can with some confidence assume that its award on the remaining elements was in the neighborhood, at least, of the $2,143,300 left over after earnings and medical expenses are taken into account. [51] The evidence does not justify this approximately two million dollar award for the noneconomic portion of Osburn’s losses. We have no doubt that Osburn has suffered and will continue to suffer until his death significant severe mental anguish as a result of the knowledge that his illness is terminal. The evidence shows also that he can no longer participate in his calf-roping hobby or enjoy other leisure activities he could previously perform. But, although he fatigues easily and will undoubtedly suffer pain as the disease progresses, there is no evidence that he will have to endure the sort of continuing, excruciating pain that might support an award more nearly approaching this high sum. [52] Our task of determining the maximum amount a jury properly could award for these losses is more difficult. In a very real sense, there is no way to place a monetary value on a person’s pain and suffering, especially where the agony is spread over an indefinite period of time. Most of us would not trade two or three million dollars for Mr. Osburn’s situation. That cannot be the measure, however, because few indeed would take any sum of money in exchange for severe terminal illness or impending death. Yet the very purpose of such damage awards is to affix dollar amounts for losses that cannot be measured in money. We must therefore exercise our best judgment and place some restraint on awards, for as Judge Rubin has said, “[t]he sky is simply not the limit for jury verdicts.” Caldarera, 705 F.2d at 784. [53] Based on the evidence in this record and on the rough guidance provided by awards affirmed by this Court for similar injuries,[19] we believe that an award of $1,500,000 is the most a jury could properly have awarded for Osburn’s noneconomic losses. Applying our maximum recovery rule, we thus conclude that the total permissible award to Mr. Osburn is $1,856,700. Deducting from this sum the fifteen percent liability attributable to Anchor, the total permissible amount of damages owed to Osburn by Rachelle is $1,578,195. Accordingly, we order a new trial on the issue of Mr. Osburn’s damages, unless he will agree to a remittitur to this amount. [54] 3. Mrs. Osburn’s damages
[55] In response to the district court’s instruction that if proven by a preponderance of the evidence, the jury could consider damages to Mrs. Osburn for loss of her husband’s love and affection and for loss of his household services, the jury awarded Mrs. Osburn a lump-sum verdict of $500,000. Rachelle challenges this award as

Page 921

excessive as well. We conclude, however, that although it closely approaches the maximum the jury could have properly awarded, it is not excessive.[20] The evidence indicates that Mr. and Mrs. Osburn enjoyed a close, loving relationship and that they remained happy together after almost twenty years of marriage. With regard to Mrs. Osburn’s loss of her husband’s household services, she testified that Mr. Osburn performed many chores for her and the family. Since the Osburns live in a rural environment, the value of those services may be greater than in an urban setting. We therefore sustain the jury’s $500,000 award to Mrs. Osburn.[21]

[56] Conclusion
[57] The district court shall order a new trial on Mr. Osburn’s claims for damages unless Mr. Osburn agrees, within the time specified by the district court following remand, to a remittitur of the award to $1,578,195. We therefore vacate the damage award to Clois Osburn, and in all other respects affirm the judgment below. We remand the cause for further proceedings consistent with this opinion.

[58] AFFIRMED in part, VACATED in part, and REMANDED.