Unpublished Disposition, 912 F.2d 468 (9th Cir. 1990)

MEMORANDUM^* 

Jennifer Marie Bennett, a minor, by and through Wayne Bennett and Becky Bennett, her parents and guardians ad litem, (hereinafter Appellant) and Wayne Bennett and Becky Bennett, as individuals, appeal the denial of Appellant's motions for a new trial and the final judgment entered in this malpractice action.¹ 

Appellant raises the following issues on appeal:

1. The district court committed prejudicial error in admitting evidence regarding the purchase price of annuities;

2. The damage award was unconscionably low;

3. The district court committed prejudicial error in excluding evidence relating to Dr. Schaffer's liability;

a. The district court committed prejudicial error in excluding Dr. Parer's testimony relating to the cause of Bennett's injuries;

b. The district court committed prejudicial error in sustaining objections to hypothetical questions asked of Dr. Emerson;

c. The district court committed prejudicial error in refusing to allow Appellant to impeach Dr. Emerson with his prior inconsistent statements;

d. The district court committed prejudicial error in excluding Dr. Westcott's testimony on rebuttal.

We discuss each of these contentions and the facts pertinent thereto under separate headings. We affirm.

* THE ANNUITY EVIDENCE

Appellant argues that the trial court erred in admitting testimony concerning the purchase price of annuities that could be used to compensate Appellant for her injuries. Appellant made a motion in limine to exclude the annuity evidence pursuant to Rules 402 and 403 of the Federal Rules of Evidence on the basis that the evidence was "irrelevant," or that its relevance was "outweighed by its prejudicial effect and, that it was likely to mislead the jury." At trial, Appellant also raised a continuing objection to evidence concerning annuities on the ground that it was "irrelevant to the inquiry here." The district court denied each of Appellant's objections.

In a diversity action for damages for tortious conduct the law of the forum state is applied to ascertain the correct measures of damages. Klicker v. Northwest Airlines, Inc., 563 F.2d 1310, 1316 n. 10 (9th Cir. 1977); V.L. Johnson v. Chicago, Mil., St. P. & Pac. R.R. Co., 400 F.2d 968, 974 (9th Cir. 1968). Although state law determines the measure of damages, we apply the Federal Rules of Evidence to questions concerning the admissibility of evidence. Gibbs v. State Farm Mut. Ins. Co., 544 F.2d 423, 428 n. 2 (9th Cir. 1976). "The admission or exclusion of evidence under Fed.R.Evid. 403 ... is reversible only for a clear abuse of discretion." Coursen v. A.H. Robbins Co., 764 F.2d 1329, 1333 (9th Cir. 1985).

Under Idaho law lump sum damages must be reduced to present value. See W.L. Scott, Inc. v. Madras Aerotec, Inc., 103 Idaho 736, 653 P.2d 791, 797 (1982). Idaho Jury Instruction 931 was read to the jury. Instruction 931 defines present value as "the sum of money which, when invested so as to add to it a reasonable rate of return, will pay the future damages at the time and in the amounts" in which the jury finds they occurred. Given this definition, the jury was entitled to consider a variety of investment options, including annuities. This court has itself explicitly upheld the use of annuity testimony for the determination of the present value of a damage award. Scott v. United States, 884 F.2d 1280, 1288 (9th Cir. 1989). The district court did not abuse its discretion in admitting evidence of the purchase price of annuities.

Although annuity evidence is admissible as evidence of present value, it is still necessary to address some of Appellant's specific complaints about the annuity testimony presented in this case. First, Appellant argues that the annuity calculations improperly took into account Appellant's shortened lifespan. Second, Appellant asserts that, because the $568,609 "sample" annuity was unrelated to any care plan developed by any of the experts, its inclusion was erroneous. Appellant maintains that she was prejudiced by the admission of the "sample" annuity because the jury's award of $570,000 was essentially the same as the $568,609 "sample" annuity.

The evidence of post-injury life expectancy was admissible in determining future medical expenses. It is quite true that in calculating lost earnings, the jury should not consider the victim's post-injury lifespan because this would allow the tortfeasor to benefit from his conduct. See Roy v. Oregon Short Line R.R., 55 Idaho 404, 42 P.2d 476 (1934) (plaintiff should be put in as good a position as she was prior to injury); Sea-Land Serv., Inc. v. Gaudet, 414 U.S. 573, 594 (1974) (prevailing American rule is to allow prospective earnings for plaintiff's pre-injury lifespan). In calculating damages for future medical expenses, however, it is proper to consider post-injury lifespan because these costs will terminate when the victim expires. See Roy, 42 P.2d at 484 (medical expenses should include those costs likely to occur in the future).

The cost of the medical care annuity was based on the insurance company's prediction that Appellant would live to age 32. Because the annuity described by Dr. Kuzina was life-contingent, however, the annuity would have continued paying for her medical expenses regardless of how long she lives.

The cost of the annuity relating to Appellant's lost earnings was not calculated based on her decreased life expectancy, but was based on the number of years an uninjured person of Appellant's age would work. Thus, the annuity testimony was consistent with Idaho law.

For the first time in this appeal, Appellant contends that it was error to admit evidence of post-injury life expectancy regarding the $568,609 "sample" annuity. Although Appellant objected to the admission of any evidence concerning the purchase of annuities both in a motion in limine and at trial, she did not make a specific objection to the testimony concerning life expectancy with respect to the sample annuity. "An objection must state the specific ground relied on if it is not apparent from the context. Moreover, if a general objection is overruled when a specific objection should have been made, the party is precluded from asserting the proper objection on appeal." United States v. O'Brien, 601 F.2d 1067, 1071 (9th Cir. 1979) (citations omitted). Federal Rule of Evidence 103(d) allows us to reverse in such a case only if there has been a "plain error [ ] affecting substantial rights."

Appellant's substantial rights were not affected by the admission of the testimony concerning the sample annuity. The expert testified that the annuity was merely a "sample." The $568,609 cost of the sample annuity was apparently the same as the other calculations presented to the jury.

II

ADEQUACY OF THE DAMAGES

Appellant argues that the district court erred in denying her motion for a new trial on the issue of damages because the jury's award of $570,000 was grossly inadequate. Appellant contends that the award is so low that the jury must have disregarded certain elements of damages and ignored the court's instructions. Because the award is so close to the cost of the "sample" annuity, Appellant maintains that the award bore no relationship to the demonstrated damages and that the jury merely awarded the cost of the annuity. Appellant's primary argument is that the jury failed to award adequate damages for pain and suffering.

The district court denied the motion for new trial, finding that the award of damages for pain and suffering was adequate when viewed in light of evidence presented by the defendants concerning her ability to feel pain or suffering. The district court summarized its view of the evidence supporting the award of damages for pain and suffering as follows:

It cannot be denied that [Jennifer] has been disfigured, and that her capacity to enjoy life has been restricted. It also cannot be denied that such losses would cause extreme emotional trauma to most persons. However, defendants put on testimony from which the jury could reasonably conclude that plaintiff's disabilities are so severe that she is incapable of suffering the emotional trauma which would result for most persons from such injuries. Stated so simply, this may seem heartless. However, the fact remains that damages in cases such as this are compensatory in nature. In light of this principle it could be inappropriate to award compensation for damages which are not suffered. (emphasis added).

We review the denial of a motion for a new trial premised on the inadequacy of a jury's damage award for abuse of discretion. Hard v. Burlington N. R.R., 812 F.2d 482, 483 (9th Cir. 1987); Kotz v. Bache Halsey Stuart, Inc., 685 F.2d 1204, 1208 (9th Cir. 1982) (jury's damage award reviewed for abuse of district court's discretion in denying a motion for new trial). In reviewing a jury's damage award, this court must uphold the verdict unless it is "clearly not supported by the evidence, or only based on speculation or guesswork," Los Angeles Memorial Coliseum Comm'n v. National Football League, 791 F.2d 1356, 1360 (9th Cir. 1986), cert. denied, 484 U.S. 826 (1987), and the court is left with the "definite and firm conviction that a mistake has been committed." Kotz, 685 F.2d at 1208 (quoting Bechtel v. Liberty Nat'l Bank, 534 F.2d 1335, 1342 (9th Cir. 1976) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948))). The dispositive question is not whether the damage award was too low, but whether the district court abused its discretion in denying the motion for a new trial. Hard, 812 F.2d at 483.

We find that the district court did not abuse its discretion in denying the motion for a new trial. The logic of the district court's analysis--that damages for non-economic injury cannot be awarded if the jury is not persuaded that the victim can perceive pain and suffering--is irrefutable. The question of Appellant's ability to suffer pain was hotly contested at trial. A great deal of evidence was presented on both sides. The trial judge fully instructed the jury on the measure of damages. Appellant does not challenge the court's instructions on pain and suffering. The district court instructed the jury that it should consider the following factors in determining whether to award damages:

1. The nature, extent and duration of the injury;

2. The physical and mental pain and suffering experienced, and also the pain and suffering, if any, reasonably certain to be experienced in the future, that is as the result of the injury;

3. The disfigurement, if any, resulting from the injury;

4. The impairment, if any, of faculties and capacity for work; and the ability or inability to perform usual activities on account of the injury;

5. The reasonable value of necessary medical, nursing, institutional, and therapy care, services, supplies and devices received as a result of the injury and the present cash value of similar items reasonably certain and necessary to be required in the future;

6. The reasonable value of necessary help in the home which has been required as a result of the injury, and the present cash value of such help reasonably certain to be required in the future;

7. The present cash value of the earning capacity which is reasonably certain to be lost in the future because of the injury, taking into consideration the earning capacity, age, and life expectancy of the Plaintiff Jennifer Bennett and any other circumstances shown by the evidence.

(emphasis added).

The jury, as trier of fact, sifted through all of the evidence and made a determination that has reasonable support in the evidence. The credibility of witnesses and the weight of the evidence are issues for the jury and are generally not subject to appellate review. Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1024 (9th Cir. 1985), cert. denied, 474 U.S. 1059 (1986).

Appellant did not request a special verdict that distinguished an award for economic loss from any amount that may have been based on proof of pain and suffering. Thus, we cannot tell from the jury's general verdict how it calculated the amount of $570,000. We have reviewed the testimony offered at trial by the defendants. The jury's award is rational if we assume, on appeal, that all doubts were resolved by the jury in favor of the prevailing party. Economic damages consisted of three elements:

1. The parties stipulated that Appellant's post-medical expenses totaled $69,257.

2. Dr. Kuzina calculated the present value of Appellant's future earnings at $182,419.

3. The present value of medical expenses under appellees' foster care plan as calculated in defense's testimony was $219,967.

These economic damages total $471,643. The jury awarded total damages of $570,000. Thus, notwithstanding the evidence that Appellant's ability to suffer pain was impaired, we can assume from the evidence that she was awarded $98,357 for pain and suffering. The jury heard the evidence that Appellant's mental functioning is so impaired that she suffers no emotional trauma as the result of her physical condition. The evidence also showed that cerebral palsy does not cause pain. In light of this evidence, the jury could have concluded that she was not entitled to an award of more than $98,357 for pain and suffering.

Appellant has failed to demonstrate that the district court abused its discretion in concluding that Appellant was entitled to a larger amount for pain and suffering.

Appellant argues that comparison of the jury's award to other similar cases demonstrates the award's inadequacy. While Appellant offered evidence of the amount awarded in a number of cases from other jurisdictions, we are limited in our comparison to cases from Idaho. Donovan v. Penn Shipping Co., 429 U.S. 648, 649 (1977) (percuriam) (adequacy of damages is a question of federal law); 11 C. Wright, A. Miller, Federal Practice & Procedure: Civil Sec. 2802 at 29-31; Trevino v. United States, 804 F.2d 1512, 1515 (9th Cir. 1986) (court should compare award with similar cases from the same jurisdiction), cert. denied, 484 U.S. 816 (1987).

None of the Idaho cases cited by Appellant involve the question of the adequacy of an amount for non-economic damages where the defense presented evidence that the plaintiff could not suffer pain as a result of her injuries. Appellant has referred us to Swanson v. United States, 557 F. Supp. 1041 (D. Idaho 1983); Sanchez v. Galey, 112 Idaho 609, 733 P.2d 1234 (1987) ("Sanchez I") amended, 772 P.2d 702 (1989) ("Sanchez II"); Soria v. Sierra Pacific Airlines, Inc., 111 Idaho 594, 726 P.2d 706 (1986) ("Soria I"), aff'd, 114 Idaho 1, 752 P.2d 603 (1988) ("Soria II"); Runcorn v. Sheerer Lumber Products, Inc., 107 Idaho 389, 690 P.2d 324 (1984). In each of these cases, the plaintiffs were adults who had the capacity to experience pain and suffering at the time of trial as well as to recognize that they would no longer enjoy the lifestyle they experienced prior to their injuries.

The district court did not abuse its discretion in denying Appellant's motion for a new trial on the grounds of inadequacy of the damages.

III

EVIDENTIARY ISSUES

Appellant argues that the district court made several errors that affected the jury's verdict in excluding evidence relating to Dr. Schaffer's liability. These alleged errors involved the testimony of Dr. Parer, Dr. Emerson, and Dr. Westcott.

Appellant argues that the district court erred in refusing to admit Dr. Parer's deposition testimony regarding the causation of her injuries at cross-examination. Appellant contends that because Dr. Parer testified that the fetus was normally oxygenated before birth, it was proper to offer his deposition testimony that Appellant's injuries occurred in the nursery one-half hour after birth. The court excluded the testimony as beyond the scope of the direct examination. We review a district court's decision to limit the scope and extent of the evidence presented during cross-examination for abuse of discretion. United States v. Jackson, 882 F.2d 1444, 1446 (9th Cir. 1989).

The district court did not abuse its discretion in excluding the portions of Dr. Parer's deposition testimony regarding causation. The defendants presented Dr. Parer as an expert on reading fetal heart monitors to testify regarding the standard of care that must be exercised in reading information recorded on that instrument. Given the limited scope of Dr. Parer's direct examination, the district court was within its discretion in denying Appellant's request to introduce Dr. Parer's deposition testimony concerning a subject matter not covered on direct examination.

Appellant argues that the district court erred in sustaining objections to certain hypothetical questions propounded to Dr. Emerson. The hypothetical questions regarding the proper standard of care were limited to the observations of Nurse Frisby. Nurse Frisby was not the treating nurse. She was not caring for Jennifer. The district court upheld an objection to the hypothetical as biased and one-sided. The court directed that other relevant information in the hospital records be included in the question.

When asked a hypothetical question incorporating all of the relevant information, Dr. Emerson testified that Dr. Schaffer met the appropriate standard of care. The court sustained an objection to impeach Dr. Emerson with his deposition testimony that, based solely on Nurse Frisby's observations, Dr. Schaffer did not meet the applicable standard of care.

We review evidentiary questions for abuse of discretion. Roberts v. College of the Desert, 870 F.2d 1411, 1418 (9th Cir. 1988). " [T]he form of the hypothetical question is left to the broad discretion of the trial court." Taylor v. Burlington N. R.R. Co., 787 F.2d 1309, 1317 (9th Cir. 1986). Before allowing impeaching evidence, a court must be convinced that the statements are inconsistent. United States v. McLaughlin, 663 F.2d 949, 952 (9th Cir. 1981). The district court acted within its discretion in requiring counsel to frame a hypothetical question that fairly reflected the relevant facts.

The district court did not err in sustaining an objection to the proposed impeachment testimony. Dr. Emerson testified at trial that, considering the information contained in the hospital record, Dr. Schaffer's actions met the applicable standard of care. At the deposition proceedings, Dr. Emerson was asked to assume that Nurse Frisby's observations accurately described Appellant's condition. This hypothetical question is different from the one posed to Dr. Emerson at trial. Dr. Emerson's response to the question posed to him during his deposition was not inconsistent with his testimony at trial. The district court did not abuse its discretion in denying counsel's request to introduce the deposition testimony.

Appellant argues that the trial court erred in sustaining an objection to the proposed testimony of Dr. Westcott. Appellant maintains that Dr. Westcott's testimony was admissible to rebut the testimony of Sue Smith, the Appellant's respiratory therapist. Sue Smith testified that Appellant did not have a respiratory arrest. Dr. Westcott's testimony was also offered to impeach Sue Smith's testimony at trial with her extrajudicial statement to him that an arrest had not occurred.

"Decisions concerning the use of rebuttal evidence lie within the sound discretion of the trial court." United States v. Pheaster, 544 F.2d 353, 383 (9th Cir. 1976), cert. denied, 429 U.S. 1099 (1977); accord, United States v. McCollum, 732 F.2d 1419, 1426 (9th Cir.), cert. denied, 469 U.S. 920 (1984). The decision whether material evidence that could have been presented in a case-in-chief should be allowed in rebuttal "lies solely within the sound judicial discretion of the trial court." Rodella v. United States, 286 F.2d 306, 309 (9th Cir. 1960), cert. denied, 365 U.S. 889 (1961).

The district court acted within its discretion in sustaining an objection to Dr. Westcott's rebuttal testimony. Appellant's theory at trial was that she suffered an arrest while in the nursery. Dr. Westcott's testimony concerning an arrest may have supported this theory. Thus, his testimony would have been admissible in Appellant's case-in-chief.

Sue Smith's extrajudicial statement to Dr. Westcott is inconsistent with her trial testimony. Thus, it was relevant evidence to prove that her testimony was not credible. The district court abused its discretion in sustaining an objection to use of the extrajudicial statement for impeachment on rebuttal. Our review of the record has persuaded us that the error was harmless. An error in the exclusion of evidence that was "more probably than not harmless" does not compel reversal. Haddad v. Lockheed Cal. Corp., 720 F.2d 1454, 1459 (9th Cir. 1983).

AFFIRMED.