## Facts

- Luke Joseph Perricone brought a diversity action against Kansas City Southern Railway Company for personal injuries and property damage arising from a one-car accident at the Archie Street railroad grade crossing in Beaumont, Texas.
- The accident occurred on January 23, 1976, on a clear, dry day, as Perricone drove his 1970 Plymouth across a crossing containing four railroad tracks.
- Perricone claimed the railroad failed to keep the crossing in a reasonably safe condition for the traveling public and failed to warn motorists of hazardous conditions at the crossing.
- Perricone testified he was traveling about five to ten miles per hour; the first two tracks were smooth, but at the third track “the rail was sticking up,” his car “bottomed out,” and it came to a sudden stop.
- Perricone stated the abrupt stop threw him into the car’s interior, causing head and facial injuries and other physical complaints; the parties disputed the extent and seriousness of his injuries at trial.
- In prior litigation involving the same crossing, a witness, H. J. Fontenot, had testified that the crossing was unsafe.
- Perricone was unable to locate Fontenot for trial and offered Fontenot’s testimony from the earlier case as “former testimony.”
- The district court admitted Fontenot’s prior testimony after accepting Perricone’s showing that Fontenot was unavailable.
- The jury returned a verdict for Perricone in the amount of \$170,000, and the district court entered judgment on the verdict.
- After the verdict, an agent for the railroad searched for Fontenot and located him in approximately two hours, about a mile from the courthouse.
- The railroad moved for a new trial, challenging both the admission of Fontenot’s former testimony and the size of the verdict; the district court denied the motion, and the railroad appealed.

## Issues

1. Did the district court err by admitting Fontenot’s former testimony under Federal Rule of Evidence 804(b)(1) without an adequate showing that Fontenot was “unavailable” under Rule 804(a)?
2. Was the \$170,000 verdict so excessive that the district court’s refusal to grant a new trial (or similar relief) amounted to a grave abuse of discretion?
3. If error occurred, was the proper remedy a new trial on all issues rather than a limited remand?

## Decision

- The Fifth Circuit reversed the judgment and remanded for a new trial.
- The court held that Perricone did not make the required good-faith, reasonably diligent effort to secure Fontenot’s presence at trial, so Fontenot was not shown to be “unavailable” for purposes of Rule 804.
- Because Fontenot’s former testimony went to a key liability question (the alleged dangerous condition of the crossing), the erroneous admission was not treated as harmless.
- The court also concluded that the \$170,000 damages award was excessive on the record presented and that leaving it in place reflected a grave abuse of discretion.
- Given the combined problems affecting both liability proof and the damages award, the court ordered a new trial rather than remittitur or a damages-only proceeding.

## Legal Principles

- Former testimony is admissible under Federal Rule of Evidence 804(b)(1) only when the declarant is unavailable and the opposing party previously had an adequate opportunity and similar motive to cross-examine.
- Unavailability under Rule 804(a) requires more than a conclusory claim that a witness cannot be found; the proponent must show a good-faith, reasonably diligent effort to locate and produce the witness for the current trial.
- Post-trial proof that a witness was readily located near the courthouse can show that the pretrial search was not reasonably diligent and can defeat a finding of unavailability.
- A district court’s ruling on a motion for new trial based on excessive damages is reviewed deferentially, but an appellate court may reverse when the refusal to grant relief constitutes a grave abuse of discretion.
- When an evidentiary error bears on liability and the damages award is also excessive, an appellate court may reverse the entire judgment and remand for a new trial on all issues.

## Conclusion

In Perricone v. Kansas City Southern Railway Co., the Fifth Circuit set aside a \$170,000 jury verdict and remanded for a new trial because the plaintiff did not establish that a key witness was truly unavailable to justify admitting the witness’s prior testimony under Rule 804, and because the damages award was excessive enough that the district court’s refusal to grant a new trial amounted to a grave abuse of discretion.


Perricone v. Kansas City Southern Railway Co., 630 F.2d 317 (1980)