Roger Cleveland Golf Company Inc v. Prince et al
Filing
140
RESPONSE in Opposition re 131 MOTION for New Trial MOTION for Judgment as a Matter of Law Motion for New Trial, Motion for Relief from Judgment, 135 Supplemental MOTION for Judgment as a Matter of LawSupplemental MOTION for New TrialSupplemental MOTION for Relief from Judgment Response filed by Roger Cleveland Golf Company Inc.Reply to Response to Motion due by 5/19/2011 (Attachments: # 1 Exhibit A - Prince Trial Testimony Excerpts, # 2 Exhibit B - Gingrich Trial Testimony Excerpts, # 3 Exhibit C - Jury Charges & Motions Excerpts, # 4 Exhibit D - Campbell v. BP, # 5 Exhibit E - Golson v. Green Tree Financial, # 6 Exhibit F - Laubach v. Khajawai, M.D., # 7 Exhibit G - East Tennessee Natural Gas v. Acres in Wythe County, VA, # 8 Exhibit H - Coach v. Gata)(McElwaine, John)
Exhibit F
Page 1
MICHAEL CHRISTOPHER LAUBACH, Infant, by his parent and next friends,
Susan A. Laubach and Roger P. Laubach; SUSAN A. LAUBACH, Individually;
ROGER P. LAUBACH, Individually, Plaintiffs-Appellants, v. MOHAMMED A.
KHAJAWAI, M.D., Defendant-Appellee, and CRAIG R. HALL, M.D.; VICTORIA
M. MCDONALD, M.D.; FRANKLIN SQUARE HOSPITAL CENTER,
INCORPORATED, A Body Corporate, Defendants.
No. 94-2421
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
1995 U.S. App. LEXIS 24361
July 10, 1995, Argued
August 29, 1995, Decided
NOTICE:
[*1] RULES OF THE FOURTH
CIRCUIT COURT OF APPEALS MAY LIMIT
CITATION TO UNPUBLISHED OPINIONS. PLEASE
REFER TO THE RULES OF THE UNITED STATES
COURT OF APPEALS FOR THIS CIRCUIT.
SUBSEQUENT HISTORY: Reported in Table Case
Format at: 64 F.3d 657, 1995 U.S. App. LEXIS 29889.
PRIOR HISTORY:
Appeal from the United States
District Court for the District of Maryland, at Baltimore.
Alexander Harvey II, Senior District Judge. (CA-93-352).
DISPOSITION: AFFIRMED
COUNSEL: ARGUED: Marvin Ellin, ELLIN &
BAKER, Baltimore, Maryland, for Appellants.
Shelley Lynne Bagoly, JACOBSON, MAYNARD,
TUSCHMAN & KALUR, Columbia, Maryland, for
Appellee.
ON BRIEF: LaVonna L. Vice, ELLIN & BAKER,
Baltimore, Maryland, for Appellants.
Andrew
Buckner,
JACOBSON,
MAYNARD,
TUSCHMAN & KALUR, Columbia, Maryland, for
Appellee.
JUDGES: Before WILKINS and WILLIAMS, Circuit
Judges, and JOSEPH F. ANDERSON, JR., United States
District Judge for the District of South Carolina, sitting
by designation.
OPINION
OPINION
PER CURIAM:
The Appellants, Michael Christopher Laubach,
Susan A. Laubach,and Roger P. Laubach, received a jury
verdict of $ 175,000 after a medical malpractice trial in
the United States District Court for the District of
Maryland. In response to special interrogatories on the
verdict form, the jury apportioned the damages as $ [*2]
80,000 for future medical expenses, $ 95,000 for loss of
future earnings, and $ 0.00 for non-economic damages.
Thereafter, the Appellants moved for a new trial on
damages only, claiming that the jury's verdict was
illogical, inconsistent, and wholly inadequate. The trial
court denied the motion for new trial, and this appeal
followed. For the reasons set forth below, we affirm the
district court's ruling.
Page 2
1995 U.S. App. LEXIS 24361, *2
I.
On May 15, 1989, Susan Laubach was involved in a
head-on collision with another vehicle on a one-lane
bridge. At the time, Mrs. Laubach was twenty years old
and thirty-three weeks pregnant. Although neither Mrs.
Laubach nor the other driver appeared to be seriously
injured, an ambulance was called, and Mrs. Laubach was
taken to the Franklin Square Hospital.
A sonogram performed shortly after her arrival at the
hospital indicated that Mrs. Laubach had suffered a
partial placental abruption, an injury to the organ that
provides nutrition to the fetus in utero. She was admitted
to the hospital for monitoring and observation. After
observing her in the hospital for a few days, her
physicians determined on Friday morning, May 19, 1989,
that she should be discharged on Saturday, May [*3] 20,
1989.
On the evening of May 19, 1989, at approximately
8:30 p.m., Mrs. Laubach experienced severe vaginal
bleeding. Her physicians performed some tests on her and
determined that she should undergo a Caesarean section.
Mrs. Laubach's attending residents were Craig Hall, M.D.
and Victoria McDonald, M.D., and the attending
obstetrician was Appellee, Mohammed Khajawi, M.D.
After Mrs. Laubach was placed in the operating
room, the physicians were informed that another
emergency patient was being rushed to the operating
room. The other patient was suffering from a frank
hemorrhage and needed an immediate Caesarean section
to save her life and her baby's life. Mrs. Laubach was
advised that her operation would have to be postponed
until the emergency patient's operation was completed.
Mrs. Laubach was removed from the operating room and
taken to a recovery room, where she and her baby were
monitored. At approximately 11:00 p.m., she was
returned to the operating room and the physicians
delivered her baby, Michael Christopher Laubach, by
Caesarean section.
Michael was born prematurely and had a brain injury
that caused right hemiplegia, or paralysis of the right side
of his body. His [*4] condition required that he spend the
first two months of his life in the hospital. By the time he
was two years old, Michael exhibited some motor
impairment and mild cognitive disability as a result of his
brain injury.
The Appellants brought this medical malpractice
action against Dr. Khajawi alleging that Michael's
injuries were caused by the negligence of Dr. Khajawi in
failing to promptly perform a Caesarean section on Mrs.
Laubach. * The trial of this matter occurred on August
15, 1994 through August 24, 1994 and culminated in a
jury verdict in favor of the Laubachs.
* The Laubachs also named as defendants Drs.
Hall and McDonald and Franklin Square Hospital.
Prior to trial, the Laubachs reached a settlement
with Defendants Hall and Franklin Square
Hospital. In addition, Defendant McDonald was
dismissed on summary judgment.
In special interrogatories submitted to the jury in the
verdict form, the jury specifically found that Dr. Khajawi
was negligent in treating Susan Laubach and that his
negligence was [*5] a proximate cause of injury to
Michael Laubach. Further, the jury awarded the Laubachs
a total of $ 175,000 in damages: $ 80,000 for "the
medical expenses and related expenses reasonably
probable to be incurred in the future"; $ 95,000 for "the
loss of earnings which will be incurred in the future"; and
$ 0.00 for "the 'non-economic damages' (pain and
suffering, anxiety)." J.A. at 470-71.
The Laubachs timely filed a motion for a new trial
under Fed. R. Civ. P. 59(a). They urged the trial court to
accept the jury's findings of negligence and proximate
cause, but to order a new trial on damages only. The
Laubachs argued that the jury's award of zero for
noneconomic damages is inconsistent with the jury's
finding of negligence and awarding of economic
damages. In addition, the Laubachs argued that the jury
failed to award damages for the injury itself that Michael
sustained, that the evidence of non-economic damages
was essentially uncontradicted, and that the verdict was
so inadequate as to shock the conscience of the court.
The district court denied the motion for new trial
because it determined that the question of the appropriate
amount of damages was properly within the province [*6]
of the jury. The district court concluded that the verdict
was not grossly inadequate, that the verdict was not
against the clear weight of the evidence, and that
allowing the verdict to stand would not result in a
miscarriage of justice.
The Laubachs appeal from the district court's ruling
on their motion for new trial. In arguing on appeal that
Page 3
1995 U.S. App. LEXIS 24361, *6
the district court erred, they raise essentially the same
arguments that they presented in support of their motion.
II.
We first address the appropriate standard of review
for examining a trial court's ruling on a motion for new
trial. The Appellee argues that this issue is one of
substantive law and is therefore governed by the law of
Maryland, the state in which the acts or omissions that
gave rise to this diversity action occurred. According to
the Appellee, under Leizear v. Butler, 226 Md. 171, 172
A.2d 518 (Md. 1961), and related cases, the general rule
in Maryland is that a trial court's ruling on a motion for
new trial because of excessiveness or inadequacy of the
verdict is rarely, if ever, reviewed on appeal.
The court disagrees with the Appellee's argument
that state law establishes the standard of review of a
district court's ruling [*7] on a motion for new trial in a
diversity case. As several circuits have recognized, the
granting or denial of a new trial in a diversity action is a
matter of procedure governed by federal law and not by
state substantive law. See, e.g., Roggow v. Mineral
Processing Corp., 894 F.2d 246, 249 (7th Cir. 1990)
(citing Wiedemann v. Galiano, 722 F.2d 335, 337 (7th
Cir. 1983)); Westbrook v. General Tire & Rubber Co.,
754 F.2d 1233, 1238 (5th Cir. 1985); Brown v. Royalty,
535 F.2d 1024, 1027 (8th Cir. 1976); see also 11 Charles
A. Wright et al., Federal Practice and Procedure § 2802
(2d ed. 1995). Some courts have held that whether
damages awarded on state-law claims are excessive or
inadequate is determined under state law, but that federal
law governs the procedural issue of whether to grant a
new trial on that basis. See, e.g., Quality Foods, Inc. v.
U.S. Fire Ins. Co., 715 F.2d 539, 542 n.2 (11th Cir.
1983). However, a leading treatise on federal practice
suggests that "a more acceptable view articulated by
many courts is that although federal law controls on
questions involving new trials, courts sitting in diversity
may look to state decisions for [*8] general guidance."
11 Wright et al., supra, § 2802, at 45. Accordingly, our
review of the district court's ruling below is governed by
the federal standard, not the Maryland standard, for new
trial motions.
It is well-settled in this circuit that "the granting or
denying of a new trial, either for excessiveness or
inadequateness of the verdict, is discretionary with the
trial court and not reviewable absent an abuse of
discretion." Wadsworth v. Clindon, 846 F.2d 265, 266
(4th Cir. 1988); see also Bristol Steel & Iron Works, Inc.
v. Bethlehem Steel Corp., 41 F.3d 182, 186 (4th Cir.
1994); Wilhelm v. Blue Bell, Inc., 773 F.2d 1429, 1433
(4th Cir. 1985), cert. denied, 475 U.S. 1016 (1986). Our
review of the record and the district court's ruling below
reveals that the district judge did not abuse his discretion
in denying the Appellants' motion for a new trial on
damages only.
III.
Rule 59(a) of the Federal Rules of Civil Procedure
provides, in relevant part:
A new trial may be granted to all or any
of the parties and on all or part of the
issues . . . in an action in which there has
been a trial by jury, for any of the reasons
for which new trials have [*9] heretofore
been granted in actions at law in the courts
of the United States . . . .
As we have held before, and as the district court
below correctly recognized, a trial judge may grant a new
trial #7F 797F#if he is of the opinion that the verdict is
against the clear weight of the evidence, or is based upon
evidence which is false or will result in a miscarriage of
justice."'" Metrix Warehouse, Inc. v. Daimler-Benz
Aktiengesellschaft, 828 F.2d 1033, 1043 (4th Cir. 1987)
(quoting Wyatt v. Interstate & Ocean Transport Co., 623
F.2d 888, 892 (4th Cir. 1980) (quoting Williams v.
Nichols, 266 F.2d 389, 392 (4th Cir. 1959))), cert.
denied, 486 U.S. 1017 (1988).
The Appellants argue that the jury's verdict is
inadequate as a matter of law because, they contend, the
evidence of Michael's disability, as well as evidence that
Michael would suffer from physical limitations and
psychological difficulties in the future, was essentially
uncontroverted. In other words, the Appellants argue that
the evidence of non-economic damages was undisputed
by Dr. Khajawi's witnesses.
In rejecting this argument, the district court made the
following determination:
Whether or [*10] not portions of the
testimony of plaintiffs' experts was
disputed by contrary evidence, the jury
was not compelled to accept in toto the
Page 4
1995 U.S. App. LEXIS 24361, *10
testimony of plaintiffs' expert witnesses.
Even though the testimony of a particular
witness was not disputed, the jury was
entitled to give the testimony of any
witness such credibility, if any, as the jury
determined that it deserved.
J.A. at 503-04.
Moreover, the Appellee has identified several
portions of the record in which the bases for the
Laubach's experts' testimony on non-economic damages
were challenged or the credibility of the Laubach's
witnesses was attacked. For example, during the
testimony of the Plaintiffs' neurology expert, Dr.
Richardson, Michael was brought before the jury box to
help demonstrate the witness's testimony about Michael's
disability. Dr. Richardson testified that "[Michael] is
unable to dress himself, and he is unable to put his shoes
on. He has to be assisted in this act every morning. A
five-year-old should be able to put some of his things on,
not necessarily tie his shoelaces, but he should be able to
do some things." At that point, Michael interrupted by
blurting out, "I can put my shorts on by [*11] myself."
J.A. at 178. In addition, the testimony of the Defendant's
expert, Dr. Antell, indicated that there was no consensus
about Michael's abilities and the outlook for his future.
After carefully considering the briefs and arguments
of counsel on appeal, as well as the record below and the
district court's order, we affirm the district court's denial
of the Laubachs' motion for new trial. As the district
court observed, "[the Laubachs'] post-trial motion is
based essentially on their disagreement with the jury's
ultimate findings on the facts. However, determinations
on the amount of damages to be awarded in this case
were for the jury to make pursuant to the Court's
instructions." J.A. at 501. Because the district court was
in the best position to examine the appropriateness of the
jury's decision in light of the evidence presented in the
case, its discretion is entitled to considerable deference.
We find no abuse of that discretion here.
AFFIRMED
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