Duk v. Mgm Grand Hotel, Inc.
| Decision Date | 03 March 2003 |
| Docket Number | No. 01-16034.,No. 01-15841.,01-15841.,01-16034. |
| Citation | 320 F.3d 1052 |
| Parties | Fernando DUK, Plaintiff-Appellant/Cross-Appellee, v. MGM GRAND HOTEL, INC., a Nevada Corporation, dba MGM Grand Hotel, Casino and Theme Park, Defendant-Third-Party-Plaintiff-Appellee/Cross-Appellant, v. American Medical Response; Clark County Detention Center; Las Vegas Metropolitan Police Department, Third-Party-Defendants/Cross-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Rob Martin, Noah Allison, Martin & Allison, Ltd., Las Vegas, NV, Shaun P. Martin, University of San Diego School of Law, San Diego, CA, for plaintiff-appellant/cross-appellee, Duk.
Bruno Wolfenzon, The Wolfenzon Law Group, Las Vegas, NV, for defendant-appellee/cross-appellant, MGM Grand.
LeAnn Sanders, Alverson, Taylor, Mortensen, Nelson & Sanders, Las Vegas, NV, for third-party defendant/appellee, American Medical Response.
Michael A. Federico and Peter Angulor, Las Vegas, NV, for third-party defendants/appellees, Las Vegas Metropolitan Police Department and Clark County Detention Center.
Appeal from the United States District Court for the District of Nevada; Howard D. McKibben, District Judge, Presiding. D.C. No. CV-95-00020-HDM.
Before D.W. NELSON, HAWKINS, and WARDLAW, Circuit Judges.
Fernando Duk ("Duk") appeals the judgment arising from a defense verdict in favor of MGM Grand Hotel, Inc. ("MGM") in Duk's personal injury action in which there were two trials and three verdicts. MGM cross-appeals the district court's decision to resubmit the first verdict to the jury for clarification. Because we find that the court was within its discretion in resubmitting the first verdict, but erred in ordering a new trial upon receipt of the second verdict, we reverse and remand with instructions to enter judgment in Duk's favor consistent with the first jury's second verdict.
The dispute in this case arises out of Duk's night of drinking and gambling at the MGM Grand Hotel in Las Vegas. Duk and his wife were staying at the hotel as a stopover on their way home from a promotional trip for their lighting business. Duk is an alcoholic, and he was drinking heavily while gambling at MGM's casino with his wife. After being provided a free meal at one of MGM's restaurants, a quite drunk Duk became disruptive. Duk's wife eventually left the restaurant, but he remained behind and continued his disruptive behavior, banging on the wooden dividers between booths and blowing kisses at the restaurant's female patrons.
In response to diner complaints, MGM Security Shift Manager Mike Reece and Security Officer Tom Dixon went to the restaurant and requested that Duk leave. When Duk refused, Reece made a citizen's arrest and took Duk into custody. Duk was brought to a detention room at MGM to await officers from the Las Vegas Metropolitan Police Department ("Metro") who would transport him to jail. While Duk was in the detention room, his wife called security to check on him, and advised security that Duk was an insulin-dependent diabetic.
Duk arrived at MGM's detention area at approximately 10:20 p.m. After being in the detention room for about twenty minutes, Duk began to complain of lung pain. MGM security called for Mercy Ambulance (now known as American Medical Response ("AMR")) to examine Duk. Duk presented evidence at trial that he also complained of chest pain, and alleges that MGM security officers failed to relate this complaint to arriving AMR paramedics. The paramedics, aware of complaints of lung pain, examined Duk and determined that, while he was intoxicated, Duk had no other medical problems. The paramedics checked Duk's blood sugar and listened to his lungs, but did not evaluate his heart rate or blood pressure.
Police officers arrived at approximately 11:00 p.m., and a transport vehicle arrived around two hours later to take Duk to the Clark County Detention Center ("CCDC"). After being released from jail at around 10:00 a.m. the next morning, Duk went to a local hospital, where it was determined that he had suffered a heart attack. As a result of this heart attack, Duk sustained massive damage to the left ventricle of his heart, and ultimately required a heart transplant in April 1995. Duk filed suit against MGM, claiming damages for medical expenses, pain and suffering, and economic damages suffered because of his inability to work following the transplant. The first jury trial was held in 1998. Because Nevada's comparative negligence scheme awards damages only to those plaintiffs who are found to be 50% negligent or less, the jury was presented with a special verdict form in which it was asked to determine the relative negligence of each party. Nev.Rev.Stat. § 41.141. Question 5 of the verdict form asked the jury to allot a percentage of the total negligence to the plaintiff and to the defendant. Following question 5, the jury was instructed that if it found the plaintiff to be more than 50% negligent, it should "sign and return [the ] verdict" and judgment would be entered for the defendant. However, if in question 5 the jury found the plaintiff's negligence to be 50% or less, it was instructed to answer question 6, which asked for a determination of damages. Despite these instructions, the verdict form returned by the jury ("the first verdict") attributed 65% of the negligence to Duk and 35% to MGM, but still went on to award Duk $3.3 million in damages.
The district court reviewed the first verdict and, before announcing it, resubmitted the verdict form to the jury, informing the jury that the verdict contained an inconsistency and asking it to "continue [its] deliberations." Following 20 minutes of deliberation, the jury returned with a new verdict ("the second verdict"), apportioning 51% of the fault to MGM and 49% to Duk, but leaving the award of damages the same. The court granted MGM's subsequent motion for a new trial based on the inconsistency between the two verdicts.
In the period between the mistrial grant and the new trial, MGM was permitted to add third-party defendants AMR, Metro, and CCDC. Subsequently, Duk reached settlements with AMR ($50,000) and with Metro and CCDC (combined total of $10,000). The trial court found these settlements to be in good faith.
At the second trial, the jury returned a verdict for MGM. Duk appeals the new trial grant and the judgment based upon the MGM verdict in the second trial, claiming that the second verdict was legitimate.1 MGM cross-appeals, claiming that the trial court should not have resubmitted the original inconsistent verdict, but should have discarded the damages award and entered judgment for MGM. In the alternative, MGM argues that a new trial was properly ordered. MGM also claims that the settlement between Duk and the third-party defendants was not made in good faith, and challenges the jury's original award as containing improper "business damages."
The practice of resubmitting an inconsistent verdict to the jury for clarification is well-accepted. Federal Rule of Civil Procedure 49(b) provides that general verdict sheets may be "return[ed] to the jury for further consideration of its answers and verdict" when the answers to interrogatories are inconsistent with each other or with the general verdict. Fed.R.Civ.P. 49(b). Although Rule 49(a), dealing with special verdicts such as this one, does not explicitly provide for resubmission in case of an inconsistency, we have held that, because the rule does not prohibit it, special verdicts are also subject to the practice. Mateyko v. Felix, 924 F.2d 824, 827 (9th Cir.1990).
Mateyko's embrace of the practice is based on the notion that resubmission "promotes both fairness and efficiency." Id. That principle was reaffirmed in Larson v. Neimi, 9 F.3d 1397 (9th Cir.1993), when we held that the resubmission of an inconsistent special verdict to a jury, with a request for clarification, was within the district court's discretion. Id. at 1402. Larson had brought a 42 U.S.C. § 1983 damage action arising out of his allegedly wrongful arrest. The jury returned a special verdict form in which it found that the arresting officer had qualified immunity, but nonetheless proceeded to award damages to Larson. Id. at 1398. The trial judge, with approval from the parties, resubmitted the verdict to the jury, and the jury changed the verdict to say the officer did not have qualified immunity. Id. We approved the district court's actions, and held that "[w]here the district judge does not push the jury in one direction or another, resubmission is a most sensible solution." Id. at 1401. As in Mateyko, we endorsed the policy underlying the practice of resubmission, noting that "when the very body that issued the ambiguous or inconsistent verdict is still available to clarify its meaning, a request that it do so comports with common sense as well as efficiency and fairness." Id. at 1402.
Here, the inconsistency arose when the jury awarded damages to Duk, even though it found him more than 50% responsible for his own injuries. MGM argues that the jury contravened the verdict form's instructions to "sign and return [the] verdict" if Duk were found to be more than 50% negligent and, as a result, resubmission was barred by Floyd v. Laws, 929 F.2d 1390, 1397 (9th Cir.1991) ().
Floyd involved a 42 U.S.C. § 1983 suit and pendent state tort claims brought by a mother and her children against a municipality and its police chief. Id. at 1392. The jury was given a special verdict form addressing each of the claims, and found the police chief liable for assault and false imprisonment. Id. However, after the jury had been discharged, the defendant's counse...
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