The case: Kern v K-Mart
The Judge: Frederick JR Heebe
Lawyer for Kern: Former Heebe Law Clerk Kyle Shonekas and Claude Lightfoot
Lawyers for K-Mart: King Krebs Jurgans, Milling Benson Woodward and others
Key ruling: Docket #84, Plaintiff’s objection to impeachment video of Kern sustained. K-Mart claims video clearly shows plaintiff vastly overstated the extent of his injuries for an accident involving his 12 year old vehicle.
Trial result: Finds for defendant K-Mart, Plaintiff makes motions for New Trial
HEEBE, District Court Judge
Thus, in accordance with the facts of this case and the legal standards set by Louisiana and federal law, the Court makes the following findings. In considering the facts in a light favorable to K–Mart, the Court finds that reasonable men could differ as to whether K–Mart was negligent. However, in weighing the evidence, the Court finds that the great weight of the evidence supports a finding that K–Mart was negligent.
Accordingly, IT IS THE ORDER OF THE COURT that the motion of plaintiff, Arthur Kern, for judgment notwithstanding the verdict be, and the same is hereby, DENIED.
IT IS FURTHER ORDERED that the motion of plaintiff, Arthur Kern, for new trial be, and the same is hereby, GRANTED.
This ruling can not be appealed. Next up Judge Heebe recuses himself giving no reasons.
Before the court in the above-captioned matter are (1) Defendant’s Motion to Reconsider Order Granting Motion for New Trial, which is opposed by Plaintiff, and (2) Plaintiff’s Motion to Strike Defendant’s Additional Expert Witness, which is opposed by Defendant. The Motions are before the court on briefs, without oral argument.
This matter was originally tried before a jury in Section “B” of this court during the week of January 10, 1991. Following a jury verdict in favor of Defendant, the presiding judge (Chief Judge Heebe) granted Plaintiff’s Motion for a New Trial, assigning extensive reasons. Judge Heebe then rescued himself from further consideration of the matter, and the case was transferred to this section.
The general rule in such situations in which a case is transferred between judges at the district court level is one of “judicial comity,” holding that “where a judge of a United States District Court or a judge assigned to a United States District Court, while a case is on his calendar, renders a decision and makes a judicial order in such case, and thereafter the case is transferred to the calendar of another judge of such District Court, the latter judge should respect and not overrule such decision and order.” Stevenson v. Four Winds Travel, Inc., 462 F.2d 899, 904–5 (5th Cir.1972).
After a thorough review of the memoranda of counsel, the applicable law, and the transcript of the jury trial in this matter, this court finds no reason not to follow that rule of judicial comity. Accordingly, IT IS ORDERED that Defendant’s Motion to Reconsider Order Granting Motion for New Trial is hereby DENIED.
In light of the fact that this case will be transferred to Section “N” of this court, IT IS FURTHER ORDERED that Plaintiff’s Motion to Strike Defendant’s Additional Expert Witness is CONTINUED WITHOUT DATE, to be re-set by the judge in that section.
So new trial it is, this time before Judge Clement:
After considering and weighing the evidence presented to the jury, the court does not find that the jury’s conclusion that K– Mart was negligent and caused Kern’s accident and injuries was against the great weight of the evidence. Neither does it find that the jury’s award of damages was against the great weight of the evidence.
Accordingly, IT IS ORDERED that Defendant K– Mart Corporation’s motion for judgment as a matter of law or, in the alternative, for a new trial is DENIED; IT IS FURTHER ORDERED that Plaintiff Arthur Kern’s motion to amend the court’s August 21, 1992 judgment to include pre-judgment interest is GRANTED, pursuant to the terms set forth in this order, and that his motion for judgment as a matter of law is DENIED.
Off to the Fifth Circuit we go. Remember those “extensive reasons” Judge Heebe assigned? Unlike the disgraced former Judge Porteous, the Fifth Circuit Court of Appeals did not use the term “whole cloth” but this is what they did say:
Having reviewed the briefs, record, and argument of counsel, we conclude that the jury verdict in the first trial was not against the great weight of the evidence. There is no indication of error in the conduct of that trial, nor did the district court, in granting a new trial, state any special circumstances justifying the overriding of the jury verdict. Accordingly, the court abused its discretion in granting a new trial. Judgment is REVERSED and RENDERED in favor of K-Mart Corporation.
Nothing like a do over for a former clerk huh. Slabbed reports, you decide.