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Erikson v. Weiner8/29/1996
BLEASE, Acting P. J.
This is an appeal from a judgment in favor of plaintiff, Gwendolyn Erikson, after a jury trial in a medical malpractice action.
Defendant, Dr. Barry E. Weiner, contends the trial court erred in denying his motion for a new trial predicated on claims of juror misconduct. In the published portion of the opinion we decide that the provision of Code of Civil Procedure section 659a that the trial court may extend the period within which to file an affidavit in support of a new trial "not exceeding 20 days" is mandatory. Accordingly, we will not consider the defendant's affidavits filed after the expiration of that period. Considering only the affidavits timely filed we will affirm the trial court's order denying a new trial.
In the unpublished portion of the opinion we reject the defendant's argument that there is not substantial evidence to support the implied finding that plaintiff, Gwendolyn Erikson, is totally and permanently disabled by reason of defendant's negligence.
We will affirm the judgment and the order denying a new trial.
FACTS AND PROCEDURAL BACKGROUND
In March 1991 Erikson was working in a grocery store stocking milk cartons. As she pulled a four-gallon crate off the top of a six-foot stack she slipped on wet milk. She let go of the crate and twisted to break her fall; the crate landed on her left foot, resulting in a significant injury.
About four months later Erikson was referred by her treating podiatrist, Dr. Smith, to Dr. Weiner for consultation concerning surgery on her injured foot. On July 15, 1991, Dr. Weiner performed surgery to correct a bunion; he removed, inter alia, a bone to her big toe and an inch of nerve.
Erikson now experienced pain underneath her big toe that she had not felt before the surgery. Dr. Smith advised further surgery resecting nerves in the foot to alleviate pain and evacuating the contents of the sinus tarsi. On October 2, 1991, Dr. Weiner removed the nerves, and the contents of the sinus tarsi, placing caps on the ends of two of the nerves.
The second operation did not end Erikson's foot pain; it became worse. A subsequent surgery in October 1993 to correct problems occasioned by Dr. Weiner's surgeries resulted in approximately a 30 percent reduction in the degree of foot pain. At the time of trial, in August 1994, she was able to stand on the foot, painfully, for a maximum of an hour a day.
Erikson adduced testimony of a vocational rehabilitation counselor that she did not have the ability to return to suitable gainful employment at the time of trial and that her job future was "bleak to nonexistent."
On September 9, 1994, the jury returned a special verdict answering, inter alia, that Dr. Weiner had been negligent, thereby causing injury to Erikson and damages for loss of future earnings and benefits in the sum of $708,450. The judgment on the verdict was entered on September 9, 1994.
On September 28, 1994, Dr. Weiner filed a notice of intention to move for a new trial, inter alia, on the ground of misconduct of the jury. On October 11, 1994, he filed a memorandum of points and authorities in support of the motion for a new trial. The memorandum asserts it is likely there was jury misconduct as revealed in an affidavit by defense counsel based upon his Discussions with the jurors.
The affidavit avers as follows. The jurors said various things to him after the verdict which he believed showed misconduct. On September 30, 1994, he petitioned the court for the release of the names, addresses, and telephone numbers of the jurors. He was advised there could be a problem
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