Judge Lawrence Cho, Case Number: 22STCV06392, Date: 2023-12-01 Tentative Ruling

Judge: Lawrence Cho, Case: 22STCV06392, Date: 2023-12-01 Tentative Ruling

If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling. Please call the court no later than 4:30 p.m. on the court day before the hearing, leave a message with the court clerk at (310) 260-3501, or via e-mail at samdeptk@lasuperiorcourt.org advising that all parties will submit on the tentative ruling and waive hearing, and finally, serve notice of the Court's ruling on all parties entitled to receive service. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing personally or by Court Call.

Case Number: 22STCV06392 Hearing Date: December 1, 2023 Dept: K

CASE NAME: WELCH v. LA CITY

CASE NUMBER: 22STCV06392

HEARING DATE: 12/1/23

TRIAL DATES: 9/27/23 to 10/9/23

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TENTATIVE RULING

MOTIONS:

Plaintiff’s Motion JNOV DENIED
Plaintiff’s Motion for New Trial Conditionally GRANTED

I. BACKGROUND AND PROCEDURAL HISTORY

This is a premises liability case in which Plaintiff (“P”) tripped while rollerblading over a

defect in an LA City insurance roadway and suffered a serious wrist fracture. The injury required 2 separate surgeries and over 2 years of physical therapy.

Relevant Chronology

2/15/21 Accident; 2 hospital visits

2/16/21 Surgery to wrist

April ’21 Diagnosed with CRPS

6/2/21 2^nd surgery to remove plates: hand stiff, P cannot open fingers.

July ’21 Physical Therapy 2x week with ‘horrific pain’ – continues into 2022.

7/26/21 “Pain well controlled” according to Dr. Mleczko.

10/15/21 “Not having pain” according to Dr. Mleczko.

9/27/23 Jury Trial Starts

10/9/23 Verdict

Jury trial was held in Sept. 2023 and resulted in a verdict for P in the amount of $1.6M in past non-economic damages and $400K in future non-economic damages. Defendant (“D”) brings these current motions for JNOV and New Trial/Remittitur.

II. ANALYSIS

A. JNOV

Viewing the evidence in the light most favorable to the prevailing party, this Court finds that there was substantial evidence to support the jury’s verdict for liability against D. D’s arguments require this Court to delve into the reweighing of the evidence including credibility determinations, both of which are in the sole province of the jury and impermissible for this Court to undertake in this motion. Taking the evidence as a whole and giving due deference to the jury’s findings, this Court concludes there was substantial evidence for the jury to find the elements of P’s prima facie case. JNOV is DENIED.

B. Motion for New Trial/Remittitur

D also moves for a new trial on the issue of liability and damages. With respect to liability, specifically whether there was a dangerous condition in the roadway and whether D had sufficient notice thereof, this Court finds that there was substantial evidence to support the jury’s findings and will not disturb them.

With respect to the $1.6M in past non-economic damages verdict, this Court does find that such amount is excessive and not supported by the evidence. The most persuasive fact in leading to this conclusion is that given the 970 days between the accident and $1.6M verdict returned, those figures average out to $1,650/day, which shocks this Court’s conscience and suggests the jury was influenced by improper considerations. Bigler-Engler v. Breg Inc. (2017) 7 Cal.App.5^th 276, 301. In Bigler, the plaintiff there suffered a serious knee injury, which like Plaintiff in this case, required more than one painful surgery, resulting in disfiguring scars, and compromising her daily activities. Id. at 302. Bigler found an award of $1,000/day for the first 90 days following surgery and $500/day for the 42 days of post-surgery recovery reasonable. Id. However, in light of evidence that plaintiff steadily improved in the nine years prior to trial, Bigler also found that an award at an effective rate of about $900/day during that latter period was excessive and unsupportable. Id.

Here, this Court does not quarrel with the $1,650/day average (even though 50% higher than Bigler’s allowable rate at the height of her pain) for the first 8 months, or 240 days, which totals $396,000. For simplicity’s sake we will round upward in P’s favor to $400K. This is in spite of the fact that the undisputed evidence is that her condition and pain steadily improved during this initial 8 month period, beginning 7 days after her fall (Dr. Mleczko noted on 2/21/21 P “feels well and her pain is improving”) and further improving to the point that 6 mos from the fall (in July 2021), her treating doctor Mleczko noted that her “pain is well controlled.” By the termination of the approximate first 8 mos post-accident (on 10/15/21), Dr. Mleczko noted such improvement to the point that P was “not having pain.” Of course, pain is only but one category of noneconomic damages and the record is replete with P having suffered may other types of damages such as embarrassment, mental anguish, fear, anxiety, impingement on lifestyle, etc. However, even taking that into consideration and assuming as true all the other noneconomic damages suffered, the approximately 2 year period from 10/15/21 to verdict on 10/9/23 (approximately 720 days), if spread over the remaining $1.2M (jury verdict of $1.6M minus $.4M for first 8 mos since accident), would average $1,667 per day which is even slightly greater than the $1,650/day rate during the height of P’s suffering for the first 8 mos. In other words, just as in Bigler, the average daily payment remained constant from the worst of the suffering to the period of most improvement, which the Bigler court found illogical, inconsistent with the evidence, and therefore unacceptable as a matter of law. Id. at 302. Here, as in Bigler, there must simply be some reduction in the average daily damages rate to account for P’s improvements over time.

On the record before this Court, and viewing the evidence in the light most favorable to P, this Court finds that P’s noneconomic suffering had improved from the initial 8 mos period at least 30% on average until verdict. Accordingly, applying a 30% discount to the $1,650 daily rate for the worst of her suffering during the first 8 mos, the daily rate would be reduced to $1,155/day. Applying this maximum daily rate of $1,155/day to the 720 day period from Oct. 2021-23, the total would be $831.6K. Rounding upward to the next thousand in favor of P would make that $832K. Adding that amount to the $400K in supportable noneconomic damages for the first 8 months, this Court finds that the maximum award of past noneconomic damages supportable by the evidence to be $1,232K.

With respect to the future noneconomic damages of $400K awarded by the jury, that figure spread over her estimated remaining lifespan of 27 years (9,855 days), results in an average future daily damages rate of $41/day. This Court finds that figure reasonable and supported by the evidence and shall not disturb it. Adding the $400K award for future non-economic damages to the court-calculated maximum recoverable past non-economic damages of $1,232K, results in a total noneconomic damages loss of $1.632M. Applying the jury’s finding of 17% contributory negligence attributable to P, the maximum award for noneconomic damages equals $1.355M (rounded up to the nearest thousand).

As such, this Court GRANTS a remittitur (or new trial on damages) in the net amount of $1.355M. P may either accept the remittitur or a new trial will be granted as to damages only. P will have 30 days from service of this order to accept or reject the remittitur.