Follow the Verdict Form

Markow v. Rosner, No. B260715 (D2d1 Oct. 4, 2016).

A jury awarded damages to Plaintiffs—a patient and his wife suing for loss of consortium—in a med-mal case. The jury purported to allocate the award 60/40 between Doctor and Hospital. Hospital’s liability was based on an ostensible agency theory, not any direct fault on its own part. Hospital moved for judgment notwithstanding the verdict, on the ground that the record was clear that Doctor was an independent contractor, not an agent, and that Plaintiff knew that fact from the get-go. The trial court denied that motion, but the Court of Appeal reverses.

Doctor sought JNOV arguing insufficiency of the evidence of negligence. But neither the trial court nor the Court of Appeal is buying it.

Doctor also takes issue with the special verdict form. At trial, Plaintiff presented two quite distinct theories of negligence and causation. Doctor contends that the verdict form should have polled the jury on each theory, to assure unanimity. But a special verdict is only supposed to poll on the “ultimate facts”—the essential elements of the Plaintiff’s claims. I.e., duty, breach, causation, damages. Under Code of Civil Procedure § 624, the facts need to be broad enough so the only task left for the court in interpreting the verdict is to draw the appropriate conclusions of law.

Doctor further claims that the special verdict was inconsistent and ambiguous, in that it found Hospital was not itself negligent, but that it apportioned 40 percent the fault to Hospital. It is clear that the jury made a mistake: It was only supposed to allocate fault if Hospital was itself at fault. It shouldn’t have applied if Hospital was liable due to respondeat superior, which is not a form of comparative fault. The trial court cured this issue by ignoring the fault allocation and finding Hospital to be jointly and severally liable. That was appropriate and a new trial wasn’t necessary. The jury’s straightforward and curable mistake in following the form’s instructions did not make the verdict hopelessly ambiguous.

Finally, Plaintiffs were awarded extra costs under Code of Civil Procedure § 998 because they made a joint offer of judgment for 1 cent less than $1 million, which was rejected, and beat the offer at trial. The offer was conditioned on the accuracy of Doctor’s representation that he had $1 million in insurance coverage.

The court first finds that the fact that the offer was jointly made did not render it invalid. A joint offer can be valid so long as the court can determine whether the verdict counted as a “more favorable judgment” for Plaintiffs. Wife’s loss of consortium damages were capped at $250k under MICRA. So the jury’s $5.2 million award clearly beat the offer for both.

Nor did conditioning the award on the accuracy of Doctor’s discovery about his insurance coverage make the offer to speculative to evaluate. Section 998 offers can contain non-monetary conditions, so long as those conditions can be valued in determining whether a judgment beats the offer. Nothing about the condition contained in Plaintiffs’ offer made it too uncertain to value.

Affirmed in part and reversed in part.