Licudine v. Cedars-Sinai Med. Ctr.

• Citation: 208 Cal.Rptr.3d 170,3 Cal.App.5th 881
• Decision Date: 29 September 2016
• Docket Number: B268130
• Court: California Court of Appeals
• Parties: Dionne LICUDINE, Plaintiff and Respondent, v. CEDARS–SINAI MEDICAL CENTER et al., Defendants and Appellants.

3 Cal.App.5th 881

208 Cal.Rptr.3d 170

Dionne LICUDINE, Plaintiff and Respondent,

v.CEDARS–SINAI MEDICAL CENTER et al., Defendants and Appellants.

B268130

Court of Appeal, Second District, Division 2, California.

Filed September 29, 2016

Horvitz & Levy, David M. Axelrad and Emily V. Cuatto, Encino, and Moore McLennan, Raymond R. Moore, Glendale, and Drew N. Evans for Defendants and Appellants.

Howard A. Kapp, Los Angeles, for Plaintiff and Respondent.

HOFFSTADT

, J.

During her senior year of college, plaintiff Dionne Licudine (plaintiff) suffered injury during a gallbladder surgery

that will have lifelong repercussions. She sued for malpractice, and sought damages for the resulting diminution in her earning capacity. Before such damages may be awarded, a jury must (1) find the injury that the plaintiff sustained will result in a loss of earning capacity, and (2) assign a value to that loss by comparing what the plaintiff could have earned without the injury to what she can still earn with the injury. (See Fein v. Permanente Medical Group (1985) 38 Cal.3d 137, 153, 211 Cal.Rptr. 368, 695 P.2d 665 (Fein ); Storrs v. Los Angeles Traction Co. (1901) 134 Cal. 91, 93, 66 P. 72 (Storrs ).) The first, threshold requirement is met only if the plaintiff is “reasonably certain to suffer a loss of future earnings.” (Robison v. Atchison, T. & S.F.R. Co. (1962) 211 Cal.App.2d 280, 287–288, 27 Cal.Rptr. 260 (Robison ).) But how certain must the jury be in fixing what the plaintiff could have earned without the injury? We know that a jury may not award “speculative damages” (Ferguson v. Lieff, Cabraser, He

i

mann & Bernstein (2003) 30 Cal.4th 1037, 1048, 135 Cal.Rptr.2d 46, 69 P.3d 965 (Ferguson )), and the cases reviewing lost earning capacity awards seem to apply a consistent, yet unstated standard. No case has yet articulated what that standard is. Today, we hold that the jury must fix a plaintiff's future earning capacity based on what it is “reasonably probable” she could have earned. Because the plaintiff in this case did not adduce any evidence to establish that it was “reasonably probable” she could have obtained employment as an attorney or any evidence on the earnings of lawyers, the trial court did not abuse its discretion in determining that the jury's $730,000 award for lost earning capacity was not supported by substantial evidence. What is more, given the unusual facts of this case, the court acted within its discretion in granting a new trial on damages rather than entering a judgment notwithstanding the verdict for the defendants. We consequently affirm the grant of a new trial on damages, and provide additional guidance as to a handful of evidentiary issues likely to arise during the retrial.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

In January 2012, plaintiff was a senior at the University of Southern California (USC) with a double major in political science and international relations. She was also the coxswain and captain of USC's women's rowing team, and stood a legitimate chance of being named to the national rowing team. She was planning to apply to law school to fulfill her “passion” to be a human rights lawyer.

On February 6, 2012, plaintiff underwent surgery at defendant Cedars–Sinai Medical Center (Cedars). She had been experiencing sharp abdominal pains over the prior few years, and the doctors at Cedars recommended the removal of her gallbladder

. The surgery was supposed to be minimally invasive: The surgeons were to make a small incision in her abdomen, place a hollow tube into the incision, introduce a small camera and the necessary surgical instruments into her abdomen through the tube, and then conduct the surgery.

When inserting the tube, however, defendant Ankur Gupta (Dr. Gupta) nicked a vein and caused substantial internal bleeding. This necessitated a change in plans. In order to repair the vein, extract the blood, and remove plaintiff's gallbladder, the attending physicians cut a six-inch opening in her abdomen

. Although her gallbladder was successfully removed, the more invasive surgery necessitated an additional four weeks in the hospital, including a week in the intensive care unit. What is more, the saturation of plaintiff's digestive organs in her blood caused fibrous tissue called adhesions to form on and around those organs, which has resulted in pain, bloating and dysfunction in her digestive tract.

II. Procedural History

A. Lawsuit

Plaintiff sued Cedars and Dr. Gupta for malpractice.¹

B. Evidence at trial

The matter proceeded to trial in May 2015.

At trial, plaintiff testified that she was able to return to school and graduate from USC in the spring of 2012, albeit with help from her mother, dispensation from her teachers, and use of an electronic wheelchair. Plaintiff also applied to, and was accepted by, four law schools to start in the fall of 2013. Two of the law schools—Suffolk Law School and New England School of Law—were in Boston, which plaintiff preferred so she could participate in the Boston rowing community. She explained that she did not apply to Harvard Law School because she did not have “straight As.” Plaintiff also applied to, and was accepted into, the Masters of Public Administration program at Pennsylvania State University. Plaintiff accepted the offers from Suffolk Law School and Penn State, and thereafter requested and was granted medical deferments of her start date. In the meantime, plaintiff worked for two years as an assistant rowing coach, earning $1200 a month.

Plaintiff's former rowing coach testified that more than half of the women who have served as coxswains have gone on to graduate school.

Plaintiff also called an expert witness in internal medicine. The expert opined that plaintiff's ongoing gastrointestinal problems

would likely be with her for the rest of her life and that she will “continue to suffer pain, require medical evaluations, require medication, and may at some point require an emergent surgical operation for a[n] acute abdominal event.” The expert further opined that these consequences “would certainly impact [her] lifestyle decisions[,] including career choice [and] education.”

Plaintiff asked the trial court to take judicial notice of a print-out from the website of the United States Bureau of Labor Statistics (Bureau). The print-out indicated that the “median” annual salary for attorneys in 2012 was $113,530, but noted that “competition” for attorney positions was “strong [ ] because more students are graduating from law school each year than there are jobs available.” Although plaintiff filed her request prior to trial, the court entertained argument on the issue intermittently throughout the trial, and did not deny the request until all parties had rested. The court ultimately denied plaintiff's request on the ground that the power to judicially notice official government documents did not reach “the truth of the matter[s]” stated in those documents and that, as a result, the print-out's probative value was substantially outweighed by the danger of confusing the issues and misleading the jury.

C. Jury verdict

The jury returned a special verdict form finding Cedars and Dr. Gupta negligent, and awarded plaintiff a total of $1,045,000 in damages. More specifically, the jury awarded plaintiff $285,000 in past economic loss, $730,000 in future economic loss, $15,000 for past non-economic loss, and $15,000 for future non-economic loss.

D. Posttrial motions

Cedars and Dr. Gupta (collectively, defendants) moved for a new trial and for judgment notwithstanding the verdict on several grounds, including the insufficiency of the evidence to support the jury's award of economic damages. Plaintiff moved for a new trial due to the inadequacy of the jury's award of non-economic damages.

The trial court granted both motions for a new trial on damages and denied defendants' motion for judgment notwithstanding the verdict. With respect to the jury's award of economic damages, the court stated that “there was virtually no evidence” to support the jury's $285,000 award of lost earnings “prior to verdict” and that the jury's award of $730,000 for plaintiff's loss of earning capacity was “speculative and excessive” because “there was no evidence whatsoever of the compensation earned by graduates of any law school, much less the law school plaintiff chose to attend, or compensation of any attorneys, no matter how experienced.” With respect to the jury's award of non-economic damages, the court concluded that the jury's meager award of $30,000 total for past and future pain and suffering was “grossly inadequate” in light of evidence of the “excruciating pain” she would have to endure “on a daily basis for the rest of her life.”

Defendants filed a timely notice of appeal.

DISCUSSION

Defendants appeal the trial court's order denying their motion for judgment notwithstanding the verdict, arguing that (1) there was insufficient evidence to support plaintiff's claim for loss of earning capacity, and (2) the remedy for this lack of evidence is the entry of judgment awarding no such damages, not a new trial on damages. Plaintiff disputes both arguments. A party is entitled to judgment notwithstanding the verdict only if there is “no substantial evidence [to] support” that verdict. (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68, 104 Cal.Rptr.2d 602, 18 P.3d 29

(Sweatman ); Code Civ. Proc., § 629.) In reviewing a trial court's denial of a motion for judgment notwithstanding the verdict, we ask: Does the record, viewed in the light most favorable to the jury's verdict, contain evidence that is reasonable, credible and of solid value sufficient to support the jury's verdict? (King v. State of California (2015) 242 Cal.App.4th 265, 288, 195 Cal.Rptr.3d 286 ; CADC/RAD Venture 2011–1 LLC v. Bradley (2015) 235 Cal.App.4th 775, 787, 185 Cal.Rptr.3d 684.) If we must resolve any legal issues in answering this question, our review of such issues is de novo. (King , at...