New Trial, Notwithstanding a Lack of Substantial Evidence

Licudine v. Cedars-Sinai Med. Ctr., No. B268130 (D2d2 Sept. 29, 2016)

The court here affirms the grant of a motion for new trial on damages for a law student injured due to a surgical mistake, clarifying the applicable standard for awarding damages based on future earning capacity. So far as procedure goes, the court clarifies some issues with the difference between new trial and jnov motions as well as some evidentiary issues likely to recur on trial after remand. 

The trial court granted defendant’s motion for new trial based on the insufficiency of the evidence to support an element of the awarded damages. But it denied a motion for judgment notwithstanding the verdict on essentially the same grounds. While the grounds are the same, however, the standards are different. A jnov asks whether there was substantial evidence in support of the verdict. If there was not, the moving party is entitled to a judgment, not a do-over.

On the other hand, a new trial motion asks if the weight of the evidence is contrary to the jury’s determination. In this “juror thirteen” capacity, the court can assess credibility, re-weigh evidence, and draw whatever reasonable inferences it deems appropriate. When the trial court finds that the evidence doesn’t justify a damages verdict, the result is a new trial—not an entry of judgment going the other way. Otherwise, the court would effectively be interfering with the right to jury trial.

But there is a twist. As the court explains here, a trial court also has some discretion to grant a new trial motion while refusing to award jnov, even if the evidence might also satisfy the jnov standard. It can do so for many rational reasons, such as to address newly discovered evidence, unfairness in the original trial, or when it appears that the jury might have entered a compromise verdict, awarding damages for which the evidence was insufficient instead of offsetting damages where there was sufficient evidentiary support. The latter issue is implicated here. So the trial court here didn’t err in ordering a new trial instead of entering judgment, even if the evidence might also have been insufficient to sustain the verdict under the jnov standard.

So far as evidentiary issues go, the court notes that the trial court was not required to take judicial notice of a government publication that estimated the salaries of persons similarly situated to plaintiff. While it might be appropriate to take judicial notice of the fact of these publications, it’s not proper to take notice of the truth of the facts stated therein, unless the source is of indisputable accuracy.

And in assessing the reasonableness of future earnings, the court could take into account statistical earnings information tailored to the particular law school that plaintiff attended, so long as the evidence showed some correlation between future income and the identity of the school, such as graduation, bar passage, and employment rates.

Affirmed.