Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIC816074, Frederic L. Link, Judge.
McINTYRE, J.
Norman Lepker and his wife sued Kevin Mark Deitel, M.D., Sharp Rees Stealy Medical Group, Inc. (together with Dr. Deitel, the Respondents), and others for medical malpractice in connection with treatment and surgery for a displaced vertebrae fracture that left Norman paraparetic and blind. After a defense verdict, the Lepkers moved for a new trial on grounds the evidence was insufficient to support the jury's finding of no negligence. The trial court denied the motion and the Lepkers appeal, contending that the trial court did not independently evaluate the evidence before ruling on the motion. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On August 12, 2002 Norman fell off a ladder at his residence and was taken to the Sharp Memorial Hospital emergency room by ambulance. An X-ray and computerized tomography (CT) scan at the hospital revealed a significant fracture of his T-8 vertebrae. The tests showed that Norman's spinal cord was not compromised at that point, but did not reveal the stability of the fracture (i.e., capability of the spinal column to protect the spinal cord and nerve roots). After reviewing the test results, Dr. Deitel ordered Norman to be fitted for a back brace and continued a previous order for spinal precautions that restricted how Norman could be moved. Later that night, Norman received a follow-up CT scan that showed his fracture was unstable, but Dr. Deitel was not contacted with these results.
The following morning, a technician from Scope Orthotics & Prosthetics, Inc. began fitting Norman for a back brace. After the technician rotated him onto his stomach, Norman began experiencing immobility and decreased sensation in his right leg as well as decreased mobility of his left leg. Dr. Deitel performed emergency spinal decompression and fusion surgery on Norman that evening after determining that Norman's spinal cord had become compromised. Following the surgery, Norman regained partial neurological function, but developed blindness due to decreased blood flow to the optic nerve during the lengthy surgery.
The Lepkers filed an action against Scope Orthotics & Prosthetics, Inc. for general negligence and against the Respondents and certain other defendants for medical negligence. Prior to trial, the Lepkers settled or otherwise resolved their claims against all of the named defendants other than the Respondents and two others. At trial, the Lepkers did not dispute that Dr. Deitel's order for spinal precautions complied with the standard of care, but introduced expert testimony that Dr. Deitel breached the standard of care by ordering Norman to be fitted with a brace before determining if Norman's fracture was stable. The Respondents introduced evidence that the brace technician committed negligence in rotating Norman to his stomach to fit the brace, as well as expert opinion that, regardless of whether Norman's fracture was stable, Dr. Deitel did not breach the standard of care by ordering him to be fitted with a brace preoperatively.
After considering the evidence, the jury concluded that none of the remaining defendants was negligent in the diagnosis, care, or treatment of Norman. The Lepkers moved for a new trial on grounds that the evidence was insufficient to justify such a verdict. The trial court denied the motion. After dismissing the claims against the other remaining defendants, the Lepkers appealed the judgment in favor of Dr. Deitel and Sharp Rees Stealy Medical Group, Inc.
DISCUSSION
In ruling on a motion for new trial, the trial court must weigh the evidence independently (People v. Davis (1995) 10 Cal.4th 463, 523) and may grant a new trial based on insufficiency of the evidence to justify the verdict only if "after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision." (Code Civ. Proc., § 657, all further statutory references are to this code.) The trial court "should consider [the] proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict." (People v. Robarge (1953) 41 Cal.2d 628, 633.) However, it may not grant a new trial simply because it disagrees with the jury's verdict. (Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 215-216.)
The trial court is accorded broad discretion in making its ruling on a motion for new trial. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871.) On appeal, there is a strong presumption that the trial court properly exercised its discretion. (People v. Davis, supra, 10 Cal.4th at p. 524.) "'The determination of a motion for a new trial rests so completely within the court's discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears.'" (Mokler v. County of Orange (2007) 157 Cal.4th 121, 146, quoting Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387.)
The Lepkers argue that the trial court misperceived its function in deciding the new trial motion because the court stated "as long as we have experts [opining] . . . and I cannot find a way to show -- or the evidence does not show that the defense expert is totally wrong, then it is not my position to set aside a trial or the decision of the trier of fact." The Lepkers rely on Lippold v. Hart (1969) 274 Cal.App.2d 24 (Lippold)as support for this argument. In Lippold,the trial court, after a hearing on a motion for new trial, concluded that the jury's verdict for the defendant was an unjust result. (Id. at p. 25.) However, the judge stated that he was bound by the verdict because the jury heard all the evidence and came to a unanimous decision. (Ibid.) The reviewing court concluded the judge erred because his comments indicated that even though he evaluated the evidence independently, he did not base his ruling upon that evaluation as required by section 657. (Id. at p. 26.)
In Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241 (Fortman), the court distinguished Lippold as "a rare reversal of a trial court's denial of a new trial." (Fortman, supra, 211 Cal.App.3d at p. 258.) In Fortman, the appellant argued that the trial court failed to independently evaluate the evidence relating to damages before denying the new trial motion. (Ibid.) Although the trial court did not explicitly refer to the independent evaluation standard before ruling on the issue of damages, it did expressly state that it had "reviewed the evidence" and made an "independent assessment" regarding the issue of liability. (Ibid.) The reviewing court concluded it was "quite clear" that the trial court understood its duty of independent evaluation and had "determined there was no rational basis in the evidence to warrant a new trial on damages." (Id. at pp. 258-259.)
Like Fortman, the present case is distinguishable from Lippold because no such misperception of judicial function exists here. Although the Lepkers select isolated statements in which the trial court refers to the jury's decision, it is clear from the record as a whole that the court did not regard itself as bound by any of the jury's findings. Rather, as in Fortman, the court expressly stated, "I have to make an independent evaluation of the evidence[]" and applied that standard appropriately. In response to the Lepkers' attacks on the defense expert's credibility, the trial court stated, "I don't find enough evidence in this case to show that these expert witnesses should be discounted so much that I would grant a new trial. . . . [¶] I reviewed his testimony. I've gone over it. I remember what he said." Accordingly, it is apparent that the trial court not only understood the correct standard, but also properly applied that standard, and, in doing so, independently evaluated the evidence and denied the motion based on that evaluation.
DISPOSITION
The judgment is affirmed. Respondents are awarded costs on appeal.
WE CONCUR: HUFFMAN, Acting P. J., HALLER, J.