Kode v. Carlson

• Decision Date: 25 February 2010
• Docket Number: No. 08-36056.,08-36056.
• Citation: 596 F.3d 608
• Parties: Bhavanidas KODE, a Washington individual, Plaintiff-Appellant, v. Tara N. CARLSON, an Oregon individual, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

596 F.3d 608

Bhavanidas KODE, a Washington individual, Plaintiff-Appellant, v. Tara N. CARLSON, an Oregon individual, Defendant-Appellee.

No. 08-36056.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 9, 2009.

Filed February 25, 2010.

Joseph A. Grube, Ricci Grube Aita & Breneman, Seattle, WA, for the plaintiff-appellant.

Thomas W. Brown and Julie A. Smith, Cosgrave Vergeer Kester, Portland, OR, for the defendant-appellee.

Appeal from the United States District Court for the District of Oregon, Anna J. Brown, District Judge, Presiding. D.C. No. 3:07-cv-00915-BR.

Before: JEROME FARRIS, D.W. NELSON and MARSHA S. BERZON, Circuit Judges.

PER CURIAM:

I. Background

In March 2006, Tara Carlson struck a trailer being towed by a vehicle in which Bhavanidas Kode was a passenger. In June 2007, Kode brought a diversity action against Carlson claiming economic and non-economic damages totaling $1,000,000. Although Carlson admitted she was negligent and that her negligence caused Kode to suffer some injury, the nature and extent of the injury remained in dispute.

Kode and Carlson both testified at trial, as did a witness and both parties' expert witnesses. Kode's expert witness, Dr. Anne Anderson, testified that Kode had sustained back pain radiating down his right calf, that a CT scan showed disk protrusion, an MRI confirmed the CT scan, and that in her expert opinion, the accident had probably caused those problems. She also opined that the treatments that Kode had paid for were necessary as a result of the accident and were reasonably and customarily priced.

Carlson's expert witness, Dr. Robert Cook, testified that neither the CT scan nor the MRI revealed any evidence of permanent, ongoing, or acute injury that could or would likely have been caused by the accident. When asked what injury Kode sustained from the accident, Dr. Cook testified that "a lumbar strain is certainly not inappropriate even though he didn't present early on; maybe for a variety of reasons. But a lumbar sprain, I would accept." Dr. Cook further testified that lumbar sprains are very common, come in varying degrees, and can be brought on by as slight an aggravation as a hard sneeze.

The jury was informed that Kode did not seek medical services for the auto accident until two months after the accident. Dr. Cook testified that it was "unusual for people with significant injuries not to seek treatment for two months." He further testified that "some [lumbar strains] resolve totally within three weeks. Six is probably average. Maybe sometimes they linger to 12 weeks." He also opined that Kode probably did not sustain any permanent injury from the accident and that his reactions were somewhat "exaggerated" under examination by palpitation. He stated that the charges Kode sustained from his first medical visit were fairly conventional and reasonable.

At the close of arguments, the district court instructed the jury as follows:

Defendant admits she was negligent and that her negligence caused the Plaintiff to sustain some injury. The only issues for you to determine are (1) the nature and extent of the injury or injuries Plaintiff sustained as a result of Defendant's negligence, and (2) the amount of compensatory damages Plaintiff should receive as a result of his injury or injuries.

* * *

In determining the amount of economic damages, if any, consider:

1. The amount of any lost income ... as a result of the injury....

2. The reasonable value of any medical costs Plaintiff necessarily incurred as a result of the injury....

The jury instructions also included specific instructions on how to award non-economic damages, "if any."

The jury found that Kode had sustained zero economic and zero non-economic damages. After the district court judge read the verdict in court, the judge asked the parties if they had any inquiries before the court discharged the jury. Both counsel responded that they did not.

Kode subsequently filed a motion for a new trial pursuant to Federal Rule of Civil Procedure 59, arguing that "there was simply no evidence presented at trial which support[ed] an award of zero economic and zero non-economic damages." Relying primarily on Philippine Nat'l Oil Co. v. Garrett Corp., 724 F.2d 803 (9th Cir.1984), the district court denied the motion for a new trial, holding that by failing to object to the zero damages verdict before the jury was discharged, Kode had waived his objection to the verdict. The district court did not weigh the substantiality of the evidence presented to the jury. Kode filed a timely appeal.

II. Standard of Review

A Rule 59 motion for a new trial is confided to the discretion of the district court, whose decision will be overturned on appeal only for abuse of discretion. Philippine, 724 F.2d at 805. In this case, the denial of the motion was based on the legal determination that Kode had waived his objection to the jury verdict. That determination was a conclusion of law, which we review de novo. See Husain v. Olympic Airways, 316 F.3d 829, 835 (9th Cir.2002).

III. Waiver

Carlson correctly points out that we hold that motions for a new trial challenging a zero damages award as inconsistent with liability are waived when either: (1) a jury verdict finds liability but no damages and the moving party does not object before jury discharge; or, more generally, (2) the moving party argues that the jury has rendered a verdict that contains two legal conclusions that are inconsistent with one another, and the moving party does not object before jury discharge. See Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1030-36 (9th Cir.2003); Philippine Nat'l Oil Co. v. Garrett Corp., 724 F.2d 803, 805-06 (9th Cir.1984).

This rule recognizes that district court judges are in a unique position to instruct the jury regarding the meaning of the law, including whether two legal conclusions by the jury are inconsistent. See Zhang, 339 F.3d at 1034-37. Where the jury's verdict is in no way internally inconsistent, there is no more basis for resubmission to the jury than in any other case in which a party believes the verdict to be inconsistent with the record. The usual procedures for overturning jury verdicts as inconsistent with the facts therefore suffice and may be used without objecting to the verdict before the jury is dismissed. See Fed.R.Civ.P. 59; Fed.R.Civ.P. 50.

Philippine does not control this case. Kode does not challenge a purported conflict between two legal conclusions by the jury. Kode cannot make that challenge because the jury rendered only one general verdict; an award of zero damages.

The district court's holding that Philippine waivers extend to any case in which zero damages are awarded was thus incorrect as a matter of law. Kode's motion for a new trial based on sufficiency of the evidence was not waived.

IV. Merits of the Rule 59 Motion

The district court has not yet addressed the merits of Kode's Rule 59 motion but the parties have fully briefed the merits in this court. Whether we may rule on the merits of a Rule 59 motion for a new trial based on the weight of the evidence where the district court has not yet done so because it found the motion waived appears to present an issue of first impression in this court. Assuming, without deciding, that we may rule on the merits in such circumstances, we refrain from doing so in this case for the following reasons.

Review of the merits of a Rule 59 motion for a new trial is confided to the discretion of the district court. Although the trial judge can weigh the evidence and assess the credibility of witnesses, we may not. Landes Const. Co. v. Royal Bank of Canada, 833 F.2d 1365, 1371-72 (9th Cir. 1987); see also Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) ("The authority to grant a new trial ... is confided almost entirely to the exercise of discretion on the part of the trial court.").

We review the trial court's decision on a Rule 59 motion for a new trial on the grounds that the verdict is against the clear weight of the evidence for an abuse of discretion. Landes, 833 F.2d at 1372. In many, but not all, cases where we have reviewed a denial of a Rule 59 motion for a new trial based on the clear weight of the evidence, we have reviewed for a "clear" abuse of discretion, a wording that emphasizes our deference to the jury's findings and our obligation to decide matters of law, not of fact. Compare Merrick v. Paul Revere Life Ins. Co., 500 F.3d 1007, 1013 (9th Cir.2007), and Zhang, 339 F.3d at 1039-40, and Oswald v. Cruz, 289 F.2d 488, 488 (9th Cir.1961) ("[W]e arrive short of finding a clear abuse of discretion .... We shall never know in this case the tone of voice and the grimaces, if any ...."), wi...