Unpublished Disposition, 896 F.2d 555 (9th Cir. 1990)

MEMORANDUM^* 

Plaintiffs-appellants Bauder argue that the district court erred reversibly in not giving certain jury instructions, in allowing evidence that Patricia recovered $50,000 for injuries she sustained in an automobile accident after she left defendant-appellee McCarthy's care, and in not granting a new trial.

"We review jury instructions for abuse of discretion, and give the district court substantial latitude in tailoring them. Our inquiry is whether, considering the charge as a whole, the court's instructions fairly and adequately covered the issues presented, correctly stated the law, and were not misleading." Thorsted v. Kelly, 858 F.2d 571 (9th Cir. 1988) (citation omitted). By that standard, we find that the district court did not err in instructing the jury or in not adding the instructions the Bauders proposed. We need not determine what instructions would have been optimal.

The Bauders do not disagree with the court's substantial factor instruction on causation. Nor indeed do they argue that the court incorrectly stated the law in any instructions that it did give. Rather, they contend that the district court erred reversibly in not also giving "loss of chance," "multiple cause," and "predisposition to injury" instructions. Although "a party is entitled to have theories supported by the evidence presented to the jury," Los Angeles Memorial Coliseum Comm'n, 726 F.2d 1381, 1398 (9th Cir. 1984) (citing Reno-West Coast Distrib. Co. v. Mead Corp., 613 F.2d 722, 725-26 (9th Cir.), cert. denied, 444 U.S. 927 (1979)), [a] court is not required to use the exact words proposed by a party, incorporate every proposition of law suggested by counsel [,] or amplify an instruction [,] if the instructions as given allowed the jury to determine intelligently the issues presented." Id. (citing Ragsdell v. Southern Pac. Transp. Co., 688 F.2d 1281, 1282 (9th Cir. 1982)). We might agree with the instructions that the Bauders proposed, but we do not find those instructions inconsistent with the instructions that the court gave, which we find on the whole correctly stated Oregon law.

Moreover, had we found error, it would not have been reversible. "An error in a civil trial need only be more probably than not harmless." Coursen v. A.H. Robins Co., 764 F.2d 1329 (9th Cir. 1985) (citing Haddad v. Lockheed California Corp., 720 F.2d 1454, 1459 (9th Cir. 1983)). The Bauders were permitted to argue the substance of their proposed instructions to the jury. Moreover, the law that was stated to the jury was correct. If the court, in addition to allowing the Bauders to argue to the jury the substance of their proposed instructions, had also itself instructed the jury as proposed, it is more likely than not that the jury would have reached the same result.

We review evidentiary rulings for an abuse of discretion and will not reverse absent prejudice. See Roberts v. College of the Desert, 870 F.2d 1411, 1418 (9th Cir. 1988) (citing Kisor v. Johns-Manville Corp., 783 F.2d 1337, 1340 (9th Cir. 1986)); Jaurequi v. City of Glendale, 852 F.2d 1128, 1132 (9th Cir. 1988). We are not persuaded that evidence of Patricia's $50,000 settlement on an auto accident claim was relevant. But even if the district court erred in admitting that evidence, the error was harmless.

We review for abuse of discretion a district court's denial of a motion for a new trial. See id. (citing Robins v. Harum, 773 F.2d 1004, 1006 (9th Cir. 1985)). The Bauders argue that the district court should have granted a new trial because the verdict was against the weight of the evidence. On a motion to reverse, a jury verdict would stand if the jury instructions were correct and substantial evidence supports the verdict. See Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1013-14 (9th Cir. 1985), cert. denied, 474 U.S. 1059 (1986). We have already found that the jury instructions were correct. We also find that substantial evidence supports the verdict. The Bauders argue that "there is no evidence to support a finding of no causal link between Dr. McCarthy's negligence and Patricia's injuries." The issue the Bauders raise here is properly framed as a question whether a jury might reasonably have found that the Bauders did not establish by a preponderance of the evidence that McCarthy's negligence caused her injuries. We answer that question in the affirmative. We find, therefore, the district court did not abuse its discretion in refusing the Bauders' request for a new trial.

We affirm the district court on all issues of the appeal. Because the cross-appeal is therefore moot, we do not decide it.

AFFIRMED.