Nunley v. Kloehn

• Decision Date: 19 June 1995
• Docket Number: No. 93-C-343.,93-C-343.
• Parties: Cheryl NUNLEY, Plaintiff, v. Ralph A. KLOEHN, M.D., Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

888 F. Supp. 1483

Cheryl NUNLEY, Plaintiff, v. Ralph A. KLOEHN, M.D., Defendant.

No. 93-C-343.

United States District Court, E.D. Wisconsin.

June 19, 1995.

William M. Powell, Cape Coral, FL, for plaintiff.

Michael J. Pfau, Jeffrey R. Munson, Hinshaw & Culbertson, Milwaukee, WI, for defendant.

DECISION AND ORDER

WARREN, District Judge.

Before the Court are the defendant's Motion for Judgment as a Matter of Law or Alternative Motion for a New Trial pursuant to Federal Rules of Civil Procedure 50(b) ("Rule 50(b)")¹ and 59(a) ("Rule 59(a)") in the above-captioned matter. For the following reasons, both motions are denied.

I. BACKGROUND

Plaintiff Cheryl Nunley, a Florida resident, filed the instant Complaint on April 8, 1993, amended on August 11, 1994, charging defendant Ralph A. Kloehn, M.D., a cosmetic and plastic surgeon residing in Wisconsin, with "reckless, careless, and negligent" performance of several lip augmentation and corrective surgeries involving the experimental substance Bioplastique which caused her "permanent scarring and disfigurement"; in his Answer of August 25, 1994, Dr. Kloehn denied any wrongdoing and filed seven affirmative defenses. After the Court addressed several pretrial motions, a jury trial commenced on April 10, 1995; on April 18, 1995, the jury returned with a verdict, finding Dr. Kloehn liable for medical malpractice and awarding Ms. Nunley $200,000 for past and future pain, suffering, and disability and $30,000 for future medical expenses.

II. STANDARD OF REVIEW

A. Renewed Motion for Judgment as a Matter of Law:

In diversity cases, federal courts apply the rules of the forum state in determining the propriety of post-verdict motions for judgment. Jackson v. Bunge Corp., 40 F.3d 239, 242 (7th Cir.1994); Krist v. Eli Lilly & Co., 897 F.2d 293, 297 (7th Cir.1990); Pincus v. Pabst Brewing Co., 893 F.2d 1544, 1548-49 (7th Cir.1990). Section 805.14 of the Wisconsin Statutes, like Federal Rule of Civil Procedure 50(b), allows a party to renew a motion for judgment as a matter of law, which it calls a motion for directed verdict, after a case has been submitted to the jury. Specifically, it provides that:

"A party who has made a motion for directed verdict or dismissal on which the court has not ruled pending return of the verdict may renew the motion after verdict. In the event the motion is granted, the court may enter judgment in accordance with the motion."

Wis.Stat. § 805.14(5)(d). Because Wisconsin law only allows a Motion for Dismissal, and not a Motion for Directed Verdict, to be made by a defendant at the close of the plaintiff's case, see Wis.Stat. § 805.14(3), a Renewed Motion for Directed Verdict, like a Renewed Motion for Judgment as a Matter of Law brought under Rule 50(b), must by definition have been preceded by a similar motion made at the close of all the evidence. See Wis.Stat. § 805.14(4). Presumably, this also means that a Renewed Motion for Directed Verdict can only be granted on the grounds already advanced in the pre-verdict Motion for Directed Verdict, which in turn may only be brought to challenge the sufficiency of the evidence. See Wis.Stat. § 805.14(4).

The legal standard to be applied, then, is precisely the same under either type of directed verdict motion, and is summarized under Wisconsin law as follows:

"no motions challenging the sufficiency of the evidence as a matter of law to support a verdict, or an answer in a verdict, shall be granted unless the court is satisfied that, considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such party."

Wis.Stat. § 805.14(1). "Under Wisconsin law, a directed verdict is permissible only when the evidence is `so clear and convincing as reasonably to permit unbiased and impartial minds to come to but one conclusion.'" Pincus, 893 F.2d at 1549 (quoting Kozlowski v. John E. Smith's Sons Co., 87 Wis.2d 882, 275 N.W.2d 915, 918-19 (1979)). Stated another way:

"In Wisconsin, the standard for a directed verdict is this: taking that view of the evidence which is most favorable to the party against whom the verdict was sought to be directed, if there is any evidence other than mere conjecture or incredible evidence to support a contrary verdict, the case must go to the jury."

Delvaux v. Ford Motor Co., 764 F.2d 469, 473 (7th Cir.1985) (quoting Samson v. Riesing, 62 Wis.2d 698, 215 N.W.2d 662, 666 (1974)). Accord Allison v. Ticor Title Ins. Co., 979 F.2d 1187, 1193 (7th Cir.1992) (noting that "if there is any evidence which supports the nonmoving party's cause of action, then the motion is correctly denied") (citing Wisconsin Natural Gas Co. v. Ford, Bacon & Davis Constr. Co., 96 Wis.2d 314, 291 N.W.2d 825, 836 (1980)); Sievert v. American Family Mut. Ins. Co., 180 Wis.2d 426, 509 N.W.2d 75, 79 (Ct.App.1993), aff'd on other grounds, 190 Wis.2d 623, 528 N.W.2d 413 (1995) (such motions are only to be granted if "no credible evidence supports" the verdict).

Section 805.14 of the Wisconsin Statutes also provides a second vehicle for bringing a post-verdict motion. Specifically, it states that:

"A party against whom a verdict has been rendered may move the court for judgment notwithstanding the verdict in the event that the verdict is proper but, for reasons evident in the record which bear upon matters not included in the verdict, the movant should have judgment."

Wis.Stat. § 805.14(5)(b). Unlike a Renewed Motion for a Directed Verdict brought under § 805.14(5)(d), "it is not necessary to move for a directed verdict or dismissal prior to submission of the case to the jury in order to move subsequently for a judgment notwithstanding the verdict." Wis.Stat. § 805.14(5)(e). And unlike a directed verdict motion, a Motion for Judgment Notwithstanding the Verdict is not designed to challenge the admissibility of evidence nor its sufficiency to support the verdict; rather, "the motion admits for the purposes of the motion that the findings of the verdict are true, but asserts that judgment should be granted on grounds other than those decided by the jury." Allison, 979 F.2d at 1195. Accord Kolpin v. Pioneer Power & Light Co., Inc., 162 Wis.2d 1, 469 N.W.2d 595 (1991); Chevron Chemical Co. v. Deloitte & Touche, 168 Wis.2d 323, 483 N.W.2d 314 (Ct.App. 1992). As in the case of a Renewed Motion for Directed Verdict,

"a motion for JNOV must be denied if after viewing the evidence in the light most favorable to the nonmoving party, reasonable people could fairly reach different conclusions. In applying this standard, a court should not evaluate the credibility of the witnesses or otherwise consider the weight of the evidence."

Allison, 979 F.2d at 1196 (citations omitted).

B. Motion for a New Trial:

Federal Rule of Civil Procedure 59(a) ("Rule 59(a)") authorizes the Court to grant a new trial at the request of a party in both jury and court settings "for any of the reasons for which new trials or rehearings have heretofore been granted in actions at law or in suits in equity in the courts of the United States." Irrespective of whether a federal court is exercising federal question or diversity jurisdiction, its standard of review in deciding a new trial request must be based on federal law. Jackson, 40 F.3d at 244; Allison, 979 F.2d at 1196.

Under federal law, a Motion for a New Trial is addressed to the sound discretion of the trial judge. Fort Howard Paper Co. v. Standard Havens, Inc., 901 F.2d 1373, 1377 (7th Cir.1990). The Seventh Circuit has recognized that a new trial may be granted in three instances: "(1) the verdict is against the clear weight of the evidence; (2) the damages are excessive; or (3) the trial was unfair to the moving party." Allison, 979 F.2d at 1196; Cygnar v. City of Chicago, 865 F.2d 827, 835 (7th Cir.1989). Accord Thomas v. United States, 41 F.3d 1109, 1120 (7th Cir.1994); Brandt v. Vulcan, Inc., 30 F.3d 752, 758 (7th Cir.1994); Sokol Crystal Prods., Inc. v. DSC Comms. Corp., 15 F.3d 1427, 1432 (7th Cir.1994). A Rule 59(a) motion "is not merely intended to secure a forum for the relitigation of old matters or to afford the parties the opportunity to present the case under new theories; instead, the motion is a device properly used to correct manifest errors of law or fact or to present newly discovered evidence." Fort Howard, 901 F.2d at 1380 n. 4. The Seventh Circuit has articulated the legal standard for addressing a new trial motion as follows:

"In reviewing a motion for a new trial, we view the evidence in the light most favorable to the prevailing party. We will not set aside the jury's verdict if there is a reasonable basis in the record which supports that verdict."

Thomas, 41 F.3d at 1120 (quoting Allison, 979 F.2d at 1196). The trial court is not permitted to substitute its judgment for that of the jury on disputed issues of fact. Hibma v. Odegaard, 769 F.2d 1147, 1154 (7th Cir.1985).

Under Rule 59(b), "a motion for a new trial shall be served not later than 10 days after the entry of the judgment." A district court may not extend the time for filing a new trial motion. Varhol v. National R.R. Passenger Corp., 909 F.2d 1557, 1561 (7th Cir.1990). Within that same time frame, "the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party." Federal Rule of Civil Procedure 59(d). Under Rule 50(b), a new trial motion "may be joined with a renewal of the motion for judgment as a matter of law, or a new trial may be requested in the alternative."

III. DISCUSSION

A. Parties' Arguments:

The defendant argues that he is entitled to a judgment notwithstanding the verdict or, alternatively, a new trial, for several reasons. First of all, he claims that Dr. Alkek, the plaintiff's only standard of care expert and a Board Certified dermatologist, was not qualified to...