Sacramento Injury Lawyer Blog

The following blog entry is part of the plaintiff’s response to the defendant’s new trial motion, which was posted earlier this month.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this motorcycle accident/personal injury case and its proceedings.)

LAW AND ARGUMENT
In considering a motion for new trial which is based on the ground of excessive damages, the trial court is restricted to the evidence presented at trial. Stevens v. Owens-Corning Fiberglass Corp. (App. 1 Dist. 1996) 57 Cal.Rptr.2d 525, 49 Cal.App.4th 1645. Trial court must weight and consider all evidence in record, including reasonable inferences to be drawn therefrom, before granting new trial on ground of excessive or inadequate damages and if new trial is granted, it must be based upon totality of evidence, not upon any particular portion of record which can be readily pointed out. Collins v. Lucky Markets, Inc. (App. 4 Dist. 1969) 79 Cal.Rptr. 454, 274 Cal.App.2d 645. A court may not set aside verdict and grant new trial merely because judge does not agree with amount of damages. Phillips v. Lyon (App. 1930) 109 Cal.App. 264, 292 P. 711.

The assessment of damages is primarily the province of jury and secondarily the province of trial court when passing upon a motion for new trial. Gersick v. Shilling (1950) 218 P.2d 583, 97 Cal.App.2d 641; Music v. Southern Pac. Co. (1949) 204 P.2d 422, 91 Cal.App.2d 93. Trial courts may not grant new trial merely because verdict seems large or because it is larger than court sitting as jury would have given, but only when it appears that verdict was given under influence of passion or prejudice. Casaretto v. DeLucchi (1946) 174 P.2d 328, 76 Cal.App.2d 800; Kent v. Los Angeles Ry. Corp. (1939) 84 P.2d 1057, 29 Cal.App.2d 435; Los Angeles County Flood Control Dist. v. Abbot (1938) 76 P.2d 188, 24 Cal.App.2d 728; Bonner v. Los Angeles Examiner (1936) 62 P.2d 427, 17 Cal.App.2d 458; Hellman v. Los Angeles Ry. Corp. (1934) 27 P.2d 946, 135 Cal.App. 627, rehearing denied 28 P.2d 384, 135 Cal.App. 627.

In actions sounding in damages, where the law furnishes no rule of measurement, save the discretion of the jury upon the evidence before them, courts will not disturb a verdict upon the ground of excessive damages, unless it is so flagrantly improper as to evince passion, prejudice, partiality, corruption, or misapprehension. Wheaton v. North Beach & M.R. Co. (1869) 36 Cal. 590; Boyce v. California Stage Co. (1864) 25 Cal. 460; Aldrich v. Palmer (1864) 24 Cal. 513.

Continue reading "Sacramento Motorcyclist Prevails At Trial After Accident, Part 5 of 5" »

The following blog entry is part of the plaintiff’s response to the defendant’s new trial motion, which was posted earlier this month.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this motorcycle accident/personal injury case and its proceedings.)

Dr. Bale testified that Mr. Smith sustained a permanent, painful and extremely personal injury. Mr. Smith's left testicle was damaged and, as of 2007, had lost 50% of its mass. Mr. Smith testified that many of the personal and intimate details of this life now were painful. He was unable to have sexual relations with his wife, Kim Smith, for three months and the sexual relationship with wife and continued to suffer since that the collision. Mr. Smith had painful erections, pain on urination, and pain upon exertion. These are not mere "soft tissue injuries" that will resolve with the passage of a few weeks or months or years. The traumatic damage to Mr. Smith's left testicle is permanent and worsening. The testicle was reduced in size from 30% of normal to 50% of normal in just the past several years. Dr. Bale testified that this damage from the motorcycle collision may continue to worsen, but will not reverse.

Mr. Smith testified regarding the impact of these injuries upon his life. He was unable to return to his employment for several months and continues to suffer flare-ups which cause him to miss additional days of work. He testified that he suffered many embarrassing and humiliating events where he was physically unable to stand, sit or even walk and that, on many occasions, he was entirely dependent upon his family, sometimes his children, for physical and medical support. These events caused Mr. Smith significant anxiety as he was removed from his usual and customary role of the provider and guardian of his family. Mr. Smith's testimony regarding several events where his children were required physically to care for him illustrated the full extent of the damages which were inflicted by the defendant's collision with his motorcycle.

Continue reading "Defendant Auto Driver Seeks New Trial After Motorcyclist Prevails, Part 4 of 5" »

The following blog entry is part of the plaintiff’s response to the defendant’s new trial motion, which was posted earlier this month.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this motorcycle accident/personal injury case and its proceedings.)

Dr. David Jones, a board certified orthopaedist, testified that Mr. Smith was severely injured in the motorcycle collision. As a direct consequence of the collision, Dr. Jones diagnosed Mr. Smith with a left thigh strain, left groin strain, abdominal wall strain, testicular contusion, left thigh contusion, chest wall contusion, closed head injury and pelvic contusion. The injuries were so severe, that a post-collision MRI confirmed that Mr. Smith hand sustained a pelvic bone bruise with micro-fractures. Dr. Jones testified that the force generated in the trauma exerted upon the tissues surrounding Mr. Smith's pelvis was so severe the underlying pelvic bone was bruised and micro-fractured. In short, this was a considerable trauma.

Dr. Jones testified that Mr. Smith had experienced three and one-half years of significant pain, measured as a three to four on a scale of ten, and would more likely than not continue to experience this pain for another three to four years. While the defendant has argued that Dr. Jones testified that the pain would typically resolve in three to five years, in the case of Mr. Smith Dr. Jones opined that the pain would continue for another three to four years. Mr. Smith would experience daily pain with stiffness and flare-ups of extreme pain. Dr. Jones testified that Mr. Smith would lose eight to nine days of employment per year for the next three to four years. Dr. Jones concluded that this was a very serious injury. The testimony of Dr. Jones was uncontradicted.

Dr. Joe Bale, a board certified radiologist, testified regarding extent of injury to Mr. Smith's testicle and that injury was permanent. Dr. Bale reviewed CT scans, performed in July of 2005 and in August of 2007, of Mr. Smith's testicles. The first test revealed that the Mr. Smith's left (injured) testicle was 30% smaller than the right testicle. Dr. Bale testified that this discrepancy in size may have been congenital or the result of trauma. If the discrepancy were congenital, it would remain constant over time; if the discrepancy were the result of trauma, the left testicle would continue to atrophy as the damage progressed. When a CT scan was performed in August 2007, two years later, the discrepancy had increased, from a 30% reduction in mass to 50% reduction in mass.

Continue reading "Injured Sacramento Motorcyclist Wins Damages Award, Part 3 of 5" »

The following blog entry is part of the plaintiff’s response to the defendant’s new trial motion, which was posted earlier this month.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this motorcycle accident/personal injury case and its proceedings.)

Plaintiff opposes the Motion for New Trial or, in the Alternative, Motion for Remittitur as the evidence presented at the trial justified and supported the award of non-economic damages by the jury. This court should not disturb the unanimous verdict of the jury which clearly was the result of careful deliberation and not the result of either sympathy or prejudice. As the verdict of the jury was supported by the evidence presented at trail, the motion of the defendant should be denied.

The Verdict of the Jury Was Supported by the Evidence.

Significant and substantial evidence was presented regarding the nature and extent of the injuries sustained by Mark Smith. Larry Brown testified that she turned her vehicle into the path of Mr. Smith's motorcycle, collided with the motorcycle, and caused Mr. Smith to be propelled from the motorcycle and onto the pavement. Mr. Smith testified that the collision with the defendant's automobile caused him to flip off of the motorcycle, rotate in the air, and land on his shoulders. After plaintiff's shoulders struck the pavement, Mr. Smith testified that his hips and legs slammed into the pavement, inflicting serious and significant injury. This testimony was uncontradicted.

Continue reading "Severely Injured Sacramento Motorcycle Driver Awarded Damages After Trial, Part 2 of 5" »

The following blog entry is part of the plaintiff’s response to the defendant’s new trial motion, which was posted earlier this month.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this motorcycle accident/personal injury case and its proceedings.)

Plaintiff, Mark Smith, submits this Memorandum of Points and Authorities in Opposition to Defendant's Motion for New Trial or, in the Alternative Remittitur:

INTRODUCTION
This action arises from motorcycle versus automobile collision which occurred on June 12, 2005, in Sacramento, California. Plaintiff filed the action and requested a jury trial. In its answer, the defendant likewise requested a trial by jury.

The jury trial was conduced from February 2 to February 5, 2008. On the morning of trial, the defendant admitted liability, but disputed causation and damages. During the trial, plaintiff submitted substantial evidence on the issues of causation and damages which was not significantly opposed by the defendant. The jury returned a verdict awarding Mr. Smith economic damages for the stipulated medical expenses of $15,221.75, future medical expenses of $720, past lost earnings of $28,686 and future lost earnings of $4,250. The jury awarded past non-economic damages in the amount of $190,000 and future non-economic damages of $80,000. The verdict of the jury was unanimous in all respects.

In spite of the facts that the defendant sought the trial by jury, the defendant now seeks a new trial, complaining that the non-economic damages awarded by the jury were excessive. The defendant has not cited any statutory or jurisprudential for her position that the damages are excessive, except for Horsford v. Board of Trustees of Calif. State Univ. (2005) 134 Cal.App.4th 359 wherein the court remitted on award of economic damages in an employment discrimination case. Nor has the defendant cited any evidence that the jury was unduly influenced by passion and sympathy toward the plaintiff.

Continue reading "Sacramento Jury Damages Award For Motorcycle Accident Challenged, Part 1 of 5" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this motorcycle accident/personal injury case and its proceedings.)

Plaintiff testified at trial that he currently has pain in the left hip/pelvis area which he rates as a 3 on a scale of 0-10. He did experience more acute flare ups 1-2 times a year since he has been released back to work and has returned to Dr. Jones, who has sent him to physical therapy and taken him off work for a week or two. Dr. Jones testified that he expected plaintiff would have on-going pain for 3-5 years following the accident however, because it was already 3.5 years after the motorcycle accident, he would expect that plaintiff will have the on-going pain for another 1.5 years. The jury's award for future medical expenses ($720) and future lost earnings ($4,250) were not substantial.

Based on the above evidence, the award of $190,000 for past pain and suffering and $80,000 for future pain and suffering was excessive and not based on the evidence presented at trial. A new trial should be granted.

In the Alternative, The Court Should Remit The Award.

As noted above. Code of Civil Procedure section 662.5(b) sets forth the procedure whereby the court may deny a motion for a new trial conditioned upon acceptance of a reduction of the award. In general, the trial judge has discretion to grant a new trial or the grounds of excessive damages, and it is the court's duty to grant such a new trial or provide for a reduction of a verdict if, under the circumstances, it believes the jury's award is excessive. (Bazzoli v. Nance's Sanitarium, inc. (1952) 109 Cal.App.2d 232.)

Continue reading "Huge Jury Award For Sacramento Motorcycle Accident Victim, Part 5 of 5" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this motorcycle accident/personal injury case and its proceedings.)

LEGAL DISCUSSION

THE COURT HAS A DUTY TO SET ASIDE AN EXCESSIVE VERDICT UNSUPPORTED BY THE EVIDENCE

A New Trial Should Be Granted Because The Award for Past and Future Pain and Suffering by the Jury Was Unsupported by the Evidence.

The Court has authority and the power in this case to reweigh the evidence independently from that of the jury to determine whether the past pain and suffering and future pain and suffering award was excessive.

Defendant maintains that the amounts award by the jury for past and future noneconomic damages is simply unsupported by the evidence. To that end, the evidence at trial demonstrated that plaintiff suffered only soft tissue injuries. Plaintiff testified at trial that plaintiff's CT scans and x-rays taken at the hospital following the accident were all negative.

None of plaintiff's doctors testified at trial that plaintiff required surgery or that he would require surgery in the future. Plaintiff's past medical bills were only $15,221 and there was no evidence presented at trial to suggest that plaintiff suffered enduring, severe injuries or pain as a result of the motorcycle accident.

Continue reading "Car Collides With Sacramento Motorcycle Rider, Part 4 of 5" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this motorcycle accident/personal injury case and its proceedings.)

AUTHORITY
Code of Civil Procedure §657 outlines the basis for granting a new trial. In pertinent part, it provides:
The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:
Excessive or inadequate damages.
Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

Consequently, a new trial may be granted when the verdict is not justified by the evidence, and the court has the discretion to consider the evidence anew, and set aside the verdict as unjust. (Arellano v. City of Burbank (1939) 13 Cal.2d 248) It is also the trial judge's duty to grant a new trial upon the issue of damages if he believes that the damages awarded by the jury are too high. (Los Angeles County v. Bitter (1951) 103 Cal.App. 2d 385.) If the recovery is disproportionate to any compensation reasonably warranted by the facts, it raises a presumption that it was the result of passion and prejudice rather than honest and reasoned judgment. (Gackstetter v. Market Street Rail Company (1935) 10 Cal.App.2d 713, 724.)

Code of Civil Procedure §662.5(b) provides in pertinent part as follows:
In any civil action where after trial by jury an order granting a new trial limited to the issue of damages would be proper, the trial court may in its discretion:
b) If the ground for granting a new trial is excessive damages, make its order granting the new trial subject to the condition that the motion for a new trial is denied if the party in whose favor the verdict has been rendered consents to a reduction of so much thereof as the court in its independent judgment determines from the evidence to be fair and reasonable.

Continue reading "Sacramento Auto vs. Motorcycle Collision Injures Man, Part 3 of 5" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this motorcycle accident/personal injury case and its proceedings.)

Plaintiff testified at trial that he currently has pain in the left hip/pelvis area which he rates as a 3 on a scale of 0-10. He did experience more acute flare ups 1-2 times a year since he has been released back to work and has returned to Dr. Jones, who has sent him to physical therapy and taken him off work for a week or two.

In terms of future treatment and care, Dr. Jones testified that the only treatment he could offer plaintiff for this injury was physical therapy and medication. He released plaintiff to go back to work in November 2005 and since that time, plaintiff has returned to his office 1-2 times a year for flare ups at which time Dr. Jones has taken him off work for 1-2 weeks. Dr. Jones testified that he expected that plaintiff would have on-going pain for 3-5 years following the accident however, because the case was already 3.5 years after the accident, he would expect that plaintiff will have the on-going pain for another 1.5 years.

Since being released back to work in November 2005, plaintiff estimated that he has missed a total of six weeks of work due to this motorcycle accident. Plaintiff testified that his total past lost wages were $28,686 however, there was no documentary evidence was admitted in support of this testimony.

THE VERDICT
he matter was submitted to the jury on February 5, 2008. In or about February 5, 2008 the jury rendered the following Special Verdict:

Continue reading "Motorcycle Driver From Sacramento Severely Injured, Part 2 of 5" »

The following blog entry is written from a defendant’s position after a jury trial verdict for plaintiff. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in a personal injury case present such issues to the court.

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this motorcycle accident/personal injury case and its proceedings.)

Defendant Larry Brown submits the following Memorandum of Points and Authorities is support of his Motion for New Trial or, in the alternative, Remittitur:

INTRODUCTION
A new trial is warranted due to the imposition of excessive damages that were unsupported by the evidence. In the interests of justice, Mr. Brown's motion for new trial or in the alternative, a reduction in damages must be granted.

BACKGROUND
This action arises out of an automobile versus motorcycle accident which occurred at 8:35 p.m. at the intersection of High Street and Eisenhower Boulevard in Sacramento, California on June 12, 2005. Plaintiff was operation the intersection with Eisenhower. As plaintiff entered the intersection, he collided with the 2004 Mercedes E320 driven by defendant, Larry Brown, who was turning left from southbound High Street onto eastbound Eisenhower.

The matter proceeded to trial on February 2, 2008. Plaintiff testified at trial that following the accident with Mr. Brown, plaintiff stood up and walked over to the curb. When he got to the curb, he sat down and felt pain in his back, as well as pain and weakness in his left leg.

Continue reading "Sacramento Man Injured In Motorycle Accident, Part 1 of 5" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this dog bite/personal injury case and its proceedings.)

Jury Misconduct As Grounds For New Trial

Jury misconduct (CCP 657(2): Juror misconduct so seriously infringes on the right to a fair trial that it raises a rebuttable presumption of prejudice. Enyart v. City of Los Angeles (1999) 76 CA4th 499, 507.

Here the entire jury panel took less than one hour (after the court’s response to jury questions #1 & #2) to return a verdict of no liability for the defendant, this after five full days of testimony. The jury deliberated very quickly and it appears they did not review all the evidence or jury instructions, as evidenced by the failure of the jury to read and evaluate the recorded statement of the defendant, or to review all of the testimony offered by both the plaintiff as well as the eyewitness to this accident.

The court should consider such factors as whether the misconduct has diminished a party's burden of proof on a critical issue, impeached witnesses or contradicted a defense, or conveyed information that would bias the other jurors. Young v. Brunicardi (1986) 187 CA3d 1344.

That a juror concealed a bias or prejudice on voire dire. Bardessono v. Michels (1970) 3 C3d 780; Enyart v. City of Los Angeles (1999) 76 CA4th 499, 506, 509-511.

Continue reading "Sacramento Dog Bite Victim Seeks New Trial, Part 8 of 8" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this dog bite/personal injury case and its proceedings.)

B. Verdict Or Other Decision Against The Law (CCP 657(6)

A motion for new trial may be granted on the ground of insufficiency of the evidence to justify the verdict or other decision against the law. (CCP 657(6).)

In jury trials, each party in fact has two hearings, one before the jury and the other before the court as a thirteenth juror. Norden v. Hartman (1952) 111 CA2d 751, 758. As explained by one court: In weighing and evaluating the evidence, the court is a trier of fact and is not bound by factual resolutions made by the jury. The court may grant a new trial even though there is sufficient evidence to sustain the jury's verdict on appeal, so long as the court determines the weight of the evidence is against the verdict. Candido v. Huitt (1984) 151 CA3d 918, 923. It is the trial judge's responsibility on motion for new trial to determine the weight of the evidence: A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision... unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. (CCP 657.)

In this vicious dog bite case, based upon all of the testimony offered by the plaintiff, including, but not limited to, the inconsistent testimony of Topp and Cantor, coupled with the accuracy of the animal control officer's testimony, the jury clearly should have reached a different verdict.

This includes the power to consider the credibility of witnesses and to draw reasonable inferences contrary to those drawn by the jury. Valdez v. J.D. Diffenbaugh Co. (1975) 51 CA3d 494, 512; Fountain Valley Chateu Blanc Homeowner's Ass'n v. Department of Veterans Affairs (1998) 67 CA4th 743, 751. New trial motions allow judges to disbelieve witnesses, reweigh evidence and draw reasonable inferences contrary to that of the jury.

Continue reading "After Vicious Dog Attack Sacramento Woman Sues To Recover For Injuries, Part 7 of 8" »