 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Wilson-Fellows v. Smart & Final11/30/2004
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
INTRODUCTION
Plaintiff Suzanne Wilson-Fellows appeals from an order granting a new trial. The new trial was conditioned on plaintiff's refusal to accept a reduction in damages. On appeal, plaintiff contends the trial court abused its discretion in granting a new trial on the ground of excessive damages, in that the evidence supports the award of damages. We disagree and affirm the order, modifying it to specify that the new trial is on the issue of damages only.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was injured on May 3, 2000 at the Smart & Final store in Santa Monica. At the time, the store was being remodeled by J.H. Malven Construction and Malven & Sutton Corporation. Plaintiff stepped into a six-inch-deep floor sink covered by duct tape. She fell to the ground, injuring her ankle, knee, shoulder, back and neck. She received medical treatment, physical therapy and pain medication for her injuries.
Plaintiff's case was tried before a jury. The jury found defendant Smart & Final, Inc. to be 45 percent at fault for the accident, defendants J.H. Malven Construction and Malven & Sutton Corporation to be 45 percent at fault, and plaintiff to be 10 percent at fault. The jury awarded plaintiff $96,886 in damages: $78,636 in economic damages and $18,250 in non-economic damages. Of the $78,636 in economic damages, $45,000 was for future surgery on plaintiff's neck. The award of damages for future surgery was based on the testimony of Dr. Robert Audell.
Following entry of judgment, defendant Smart & Final, Inc. moved for a new trial or, in the alternative, a remittitur, on the grounds of excessive damages and insufficient evidence to support the verdict. It challenged the $45,000 award of damages for future surgery. It claimed Dr. Audell's testimony did not support a finding to a reasonable degree of medical certainty that plaintiff would need surgery on her neck in the future.
The trial court granted the motion conditionally, ruling that the motion would be denied if plaintiff agreed to a $45,000 reduction in damages. It found "that there was insufficient evidence for the jury to find that plaintiff needed future neck surgery to a reasonable medical probability, and that there was insufficient evidence to support the jury's award of damages for future neck surgery. To the contrary, the only evidence at trial was that plaintiff did not require any future neck surgery or treatment to a reasonable medical certainty."
The trial court noted that Dr. Audell was the only witness who testified as to plaintiff's need for neck surgery in the future. "Dr. Audell testified, however, that as far as he knew, there was only a medical possibility, not a probability, that plaintiff would need future surgery. Specifically, Dr. Audell testified that when he examined plaintiff in September 2002, he did not believe she needed the future surgery to a reasonable medical probability, and that at the time it was only a `possibility' and not a `probability' that she would need the surgery. Dr. Audell testified that he decided that plaintiff would need future surgery on her neck in September 2003, when he was deposed in this action two months before trial. Dr. Audell's change in opinion, however, was not based on any medical facts or reasons, but on legal ones. Incredibly,
Page 1 2 3 4 5 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|