The Court of Appeals for the Ninth Circuit held that under the facts in the case a motion for new trial challenging a zero (0) damages award is inconsistent with liability was not waived and the matter was remanded for consideration of the merits of the new trial motion.
In Kode v. Carlson, 596 F. 3d 602 (9th Cir. 2010) plaintiff sued for injuries when he was a passenger in a trailer struck by defendants automobile. Plaintiff sought economic and non-economic damages totaling one million dollars. Plaintiff admitted that she was negligent and that her negligence caused Plaintiff to suffer some injury, the nature and extent of the injury remained in dispute. The plaintiff’s expert testified that plaintiff suffered a ruptured disk and defendant’s expert testified that he did not. He did say that he would accept a diagnosis of a lumbar sprain but there were no permanent injuries from the accident. He also stated that the charges plaintiff sustained from his first medical visit were fairly conventional and reasonable. The jury was instructed that defendant admits that she was negligent and that the negligence caused plaintiff to sustain some injury. The only issue was the nature and extent of the injury and the amount of damages. The jury found that plaintiff sustained zero (0) economic and zero (0) non-economic damages.
After the verdict was read in court the Judge asked the parties if they had any inquiries before the court discharged the jury and both responded they did not. Plaintiff subsequently filed a motion for new trial. The court denied the motion based on the legal determination that plaintiff had waived his objection to the jury verdict because it had not been challenged before the jury was discharged. The Court of Appeals recognized that this is the rule but said there was no waiver because defendant did not challenge a purported conflict between two legal conclusions by the jury. The court said that plaintiff could not make that challenge because the jury rendered only one general verdict, an award of zero (0) damages.
Since the Trial Court’s holding that there was a waiver was incorrect as a matter of law the motion for a new trial was not waived court remanded for a consideration of the motion for new trial.