Bhavanidas Kode v. Tara Carlson ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BHAVANIDAS KODE, a Washington 
individual,
No. 08-36056
Plaintiff-Appellant,
v.  D.C. No.
3:07-cv-00915-BR
TARA N. CARLSON, an Oregon
OPINION
individual,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted
December 9, 2009—Portland, Oregon
Filed February 25, 2010
Before: Jerome Farris, Dorothy W. Nelson and
Marsha S. Berzon, Circuit Judges.
Per Curiam Opinion
3073
KODE v. CARLSON 3075
COUNSEL
Joseph A. Grube, Ricci Grube Aita & Breneman, Seattle,
Washington, for the plaintiff-appellant.
Thomas W. Brown and Julie A. Smith, Cosgrave Vergeer
Kester, Portland, Oregon, for the defendant-appellee.
3076 KODE v. CARLSON
OPINION
PER CURIAM:
I. Background
In March 2006, Tara Carlson struck a trailer being towed
by a vehicle in which Bhavanidas Kode was a passenger. In
June 2007, Kode brought a diversity action against Carlson
claiming economic and non-economic damages totaling
$1,000,000. Although Carlson admitted she was negligent and
that her negligence caused Kode to suffer some injury, the
nature and extent of the injury remained in dispute.
Kode and Carlson both testified at trial, as did a witness
and both parties’ expert witnesses. Kode’s expert witness, Dr.
Anne Anderson, testified that Kode had sustained back pain
radiating down his right calf, that a CT scan showed disk pro-
trusion, an MRI confirmed the CT scan, and that in her expert
opinion, the accident had probably caused those problems.
She also opined that the treatments that Kode had paid for
were necessary as a result of the accident and were reasonably
and customarily priced.
Carlson’s expert witness, Dr. Robert Cook, testified that
neither the CT scan nor the MRI revealed any evidence of
permanent, ongoing, or acute injury that could or would likely
have been caused by the accident. When asked what injury
Kode sustained from the accident, Dr. Cook testified that “a
lumbar strain is certainly not inappropriate even though he
didn’t present early on; maybe for a variety of reasons. But a
lumbar sprain, I would accept.” Dr. Cook further testified that
lumbar sprains are very common, come in varying degrees,
and can be brought on by as slight an aggravation as a hard
sneeze.
The jury was informed that Kode did not seek medical ser-
vices for the auto accident until two months after the accident.
KODE v. CARLSON 3077
Dr. Cook testified that it was “unusual for people with signifi-
cant injuries not to seek treatment for two months.” He further
testified that “some [lumbar strains] resolve totally within
three weeks. Six is probably average. Maybe sometimes they
linger to 12 weeks.” He also opined that Kode probably did
not sustain any permanent injury from the accident and that
his reactions were somewhat “exaggerated” under examina-
tion by palpitation. He stated that the charges Kode sustained
from his first medical visit were fairly conventional and rea-
sonable.
At the close of arguments, the district court instructed the
jury as follows:
Defendant admits she was negligent and that her
negligence caused the Plaintiff to sustain some
injury. The only issues for you to determine are (1)
the nature and extent of the injury or injuries Plain-
tiff sustained as a result of Defendant’s negligence,
and (2) the amount of compensatory damages Plain-
tiff should receive as a result of his injury or injuries.
***
In determining the amount of economic damages, if
any, consider:
1. The amount of any lost income . . . as a result of
the injury . . . .
2. The reasonable value of any medical costs Plain-
tiff necessarily incurred as a result of the injury . . . .
The jury instructions also included specific instructions on
how to award non-economic damages, “if any.”
The jury found that Kode had sustained zero economic and
zero non-economic damages. After the district court judge
3078 KODE v. CARLSON
read the verdict in court, the judge asked the parties if they
had any inquiries before the court discharged the jury. Both
counsel responded that they did not.
Kode subsequently filed a motion for a new trial pursuant
to Federal Rule of Civil Procedure 59, arguing that “there was
simply no evidence presented at trial which support[ed] an
award of zero economic and zero non-economic damages.”
Relying primarily on Philippine Nat’l Oil Co. v. Garrett
Corp., 724 F.2d 803 (9th Cir. 1984), the district court denied
the motion for a new trial, holding that by failing to object to
the zero damages verdict before the jury was discharged,
Kode had waived his objection to the verdict. The district
court did not weigh the substantiality of the evidence pre-
sented to the jury. Kode filed a timely appeal.
II. Standard of Review
A Rule 59 motion for a new trial is confided to the discre-
tion of the district court, whose decision will be overturned on
appeal only for abuse of discretion. Phillipine, 724 F.2d at
805. In this case, the denial of the motion was based on the
legal determination that Kode had waived his objection to the
jury verdict. That determination was a conclusion of law,
which we review de novo. See Husain v. Olympic Airways,
316 F.3d 829, 835 (9th Cir. 2002).
III. Waiver
[1] Carlson correctly points out that we hold that motions
for a new trial challenging a zero damages award as inconsis-
tent with liability are waived when either: (1) a jury verdict
finds liability but no damages and the moving party does not
object before jury discharge; or, more generally, (2) the mov-
ing party argues that the jury has rendered a verdict that con-
tains two legal conclusions that are inconsistent with one
another, and the moving party does not object before jury dis-
charge. See Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020,
KODE v. CARLSON 3079
1030-36 (9th Cir. 2003); Philippine Nat’l Oil Co. v. Garrett
Corp., 724 F.2d 803, 805-06 (9th Cir. 1984).
[2] This rule recognizes that district court judges are in a
unique position to instruct the jury regarding the meaning of
the law, including whether two legal conclusions by the jury
are inconsistent. See Zhang, 339 F.3d at 1034-37. Where the
jury’s verdict is in no way internally inconsistent, there is no
more basis for resubmission to the jury than in any other case
in which a party believes the verdict to be inconsistent with
the record. The usual procedures for overturning jury verdicts
as inconsistent with the facts therefore suffice and may be
used without objecting to the verdict before the jury is dis-
missed. See Fed. R. Civ. P. 59; Fed. R. Civ. P. 50.
Philippine does not control this case. Kode does not chal-
lenge a purported conflict between two legal conclusions by
the jury. Kode cannot make that challenge because the jury
rendered only one general verdict; an award of zero damages.
[3] The district court’s holding that Philippine waivers
extend to any case in which zero damages are awarded was
thus incorrect as a matter of law. Kode’s motion for a new
trial based on sufficiency of the evidence was not waived.
IV. Merits of the Rule 59 Motion
[4] The district court has not yet addressed the merits of
Kode’s Rule 59 motion but the parties have fully briefed the
merits in this court. Whether we may rule on the merits of a
Rule 59 motion for a new trial based on the weight of the evi-
dence where the district court has not yet done so because it
found the motion waived appears to present an issue of first
impression in this court. Assuming, without deciding, that we
may rule on the merits in such circumstances, we refrain from
doing so in this case for the following reasons.
Review of the merits of a Rule 59 motion for a new trial
is confided to the discretion of the district court. Although the
3080 KODE v. CARLSON
trial judge can weigh the evidence and assess the credibility
of witnesses, we may not. Landes Const. Co. v. Royal Bank
of Canada, 833 F.2d 1365, 1371-72 (9th Cir. 1987); see also
Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980)
(“The authority to grant a new trial . . . is confided almost
entirely to the exercise of discretion on the part of the trial
court.”).
We review the trial court’s decision on a Rule 59 motion
for a new trial on the grounds that the verdict is against the
clear weight of the evidence for an abuse of discretion.
Landes, 833 F.2d at 1372. In many, but not all, cases where
we have reviewed a denial of a Rule 59 motion for a new trial
based on the clear weight of the evidence, we have reviewed
for a “clear” abuse of discretion, a wording that emphasizes
our deference to the jury’s findings and our obligation to
decide matters of law, not of fact. Compare Merrick v. Paul
Revere Life Ins. Co., 500 F.3d 1007, 1013 (9th Cir. 2007), and
Zhang, 339 F.3d at 1039-40, and Oswald v. Cruz, 289 F.2d
488, 488 (9th Cir. 1961) (“[W]e arrive short of finding a clear
abuse of discretion . . . . We shall never know in this case the
tone of voice and the grimaces, if any . . . .”), with Dorn v.
N. Santa Fe R.R. Co., 397 F.3d 1183, 1189 (9th Cir. 2005)
(reviewing denial of new trial motion for abuse of discretion,
not “clear” abuse of discretion). The addition of the word
“clear” does not change the core review for an abuse of dis-
cretion, but rather emphasizes the limited nature of our appel-
late function. See Piper Aircraft Co. v. Reyno, 454 U.S. 235,
257 (1981) (referring to a “clear abuse of discretion” standard
before referring back to a mere “abuse of discretion” standard
and examining for “reasonable” discretion); cf. La Buy v.
Howes Leather Co., 352 U.S. 249 (1957) (referencing a dis-
trict court’s exceeding or refusing to exercise its functions
while discussing a clear abuse of discretion). Specifically,
where the basis of a Rule 59 ruling is that the verdict is not
against the weight of the evidence, the district court’s denial
of a Rule 59 motion is “virtually unassailable. In such cases,
we reverse for a clear abuse of discretion only where there is
KODE v. CARLSON 3081
an absolute absence of evidence to support the jury’s verdict.”
Desrosiers v. Flight Int’l of Fla., Inc., 156 F.3d 952, 957 (9th
Cir. 1998) (emphasis in original) (quoting Pulla v. Amoco Oil
Co.,72 F.3d 648, 656-57 (8th Cir. 1995) (White, J.)).
Normally, we reverse under the abuse of discretion stan-
dard only when the district court reaches a result that is illogi-
cal, implausible, or without support in the inferences that may
be drawn from the record. U.S. v. Hinkson, 585 F.3d 1247,
1262 (9th Cir. 2009). The abuse of discretion standard
requires us to uphold a district court determination that falls
within a broad range of permissible conclusions, provided the
district court did not apply the law erroneously. Grant v. City
of Long Beach, 315 F.3d 1081, 1091 (9th Cir. 2002). In some
cases reversing a district court’s grant of a new trial based on
the clear weight of the evidence, we have used a phraseology
that may seem to convert the deferential abuse of discretion
standard into a de novo review, e.g., “if the jury’s verdict is
not clearly against the weight of the evidence, the trial court
abuses its discretion in ordering a new trial.” Roy v. Volkswa-
gen of America, Inc., 896 F.2d 1174 (9th Cir. 1990). That
construction of the standard should not suggest that a finding
of abuse of discretion automatically results from this court’s
independent assessment of whether the jury’s verdict was
against the clear weight of the evidence. A finding of abuse
of discretion is warranted when the district court’s conclusion
— although not perhaps the same conclusion that we would
reach — was outside of a broad range of permissible conclu-
sions.
Assuming, without deciding, that we have the power to rule
on the merits of a Rule 59 motion that the district court erro-
neously denied as waived, we hold that in order to rule for
Kode on the as yet unaddressed merits of Kode’s Rule 59
motion, we would have to determine that a district court rul-
ing, on remand, for Carlson would necessarily involve an
abuse of discretion. Conversely, to rule for Carlson, we would
have to determine that a district court ruling, on remand, for
3082 KODE v. CARLSON
Kode, would necessarily involve an abuse of discretion. We
note in passing that additional considerations might apply in
a case in which the jury returned a verdict of at least $1 in
damages, because we also review for abuse of discretion a
district court’s decision to condition grants or denials of new
trial motions on remittiturs. See Silver Sage Partners, Ltd. v.
City of Desert Hot Springs, 251 F.3d 814, 818-19 (9th Cir.
2001).
[5] Kode and Carlson stipulated as to negligence and some
physical injury. There was substantial evidence supporting
Kode’s allegations of economic and non-economic harms as
well as Carlson’s defense to the allegations. Under the abuse
of discretion standard, even if substantial evidence supports
the jury’s verdict, a trial court may grant a new trial if the ver-
dict is contrary to the clear weight of the evidence. See Silver
Sage, 251 F.3d at 819. The record does not demonstrate that
it would necessarily be an abuse of discretion, or beyond the
pale, for the district court to determine that the clear weight
of the evidence required damages of at least one dollar, and
that a new trial is required. The record also does not demon-
strate that the district court would necessarily abuse its discre-
tion by refusing to grant a new trial based on the clear weight
of the evidence. In these circumstances, even if we have the
power to affirm on the merits the district court’s denial of the
Rule 59 motion, we would instead remand for consideration
of the motion’s merits.
We VACATE the order of the district court and REMAND
for consideration of the Rule 59 motion.
VACATED AND REMANDED.