United States District Court, D. Nevada
HUMBERTO AMEZCUA and OCTAVIOS RENE VAZQUEZ CORNEJO, Plaintiffs,
JORDAN TRANSPORT, INC.; LOU ANNE BOON; GERARD BOON; and FEDEX CUSTOM CRITICAL, INC., Defendants.
ORDER DENYING MOTION FOR NEW TRIAL ECF NOS. 159,
P. GORDON, .UNITED STATES DISTRICT JUDGE.
plaintiffs move for a new trial, asserting a host of reasons.
ECF Nos. 159, 172. None of those reasons is well-taken. The
verdict was not contrary to the clear weight of the evidence
and there has been no miscarriage of justice. Thus, I deny
the request for a new trial.
Ninth Circuit has "held that '[t]he trial court may
grant a new trial only if the verdict is contrary to the
clear weight of the evidence, is based upon false or
perjurious evidence, or to prevent a miscarriage of
justice.'" Molski v. M.J. Cable, Inc., 481
F.3d 724, 729 (9th Cir. 2007) (quoting Passantino v.
Johnson & Johnson Consumer Prods., 212 F.3d 493, 510
n. 15 (9th Cir. 2000)). See also, Murphy v. City of Long
Beach, 914 F.2d 183, 187 (9th Cir. 1990) (quoting
Moist Cold Refrigerator Co. v. Lou Johnson Co., 249
F.2d 246, 256 (9th Cir. 1957)) (The district court has
"the duty ... to weigh the evidence as [the court] saw
it, and to set aside the verdict of the jury, even though
supported by substantial evidence, where, in [the
court's] conscientious opinion, the verdict is contrary
to the clear weight of the evidence.").
case, the plaintiffs object to some of the questions asked of
the jury panel during voir dire. ECF No. 172 at 4-7. The
questions asked were neither inflammatory nor prejudicial to
the plaintiffs, and counsel did not object. Moreover, counsel
for the parties were offered the opportunity to call all of
the members of the venire panel to sidebar to question them
about issues raised during voir dire. "It is wholly
within the judge's discretion to reject supplemental
questions proposed by counsel if the voir dire is otherwise
reasonably sufficient to test the jury for bias or
partiality." United States v. Powell, 932 F.2d
1337, 1340 (9th Cir. 1991), cert, denied, 502 U.S.
plaintiffs complain that they had to use peremptory
challenges on two panel members (A.J. and R.C.) that should
have been excused for cause. This complaint is of no merit.
Neither A.J. nor R.C. gave sufficient reason to remove them
from the panel for cause and both confirmed they could be
fair and impartial. And even if they should have been excused
for cause, "[s]o long as the jury that sits is
impartial, the fact that the defendant had to use a
peremptory challenge to achieve that result does not mean the
Sixth Amendment was violated." Ross v.
Oklahoma, 487 U.S. 81, 88 (1988). No plain error
occurred during voir dire or jury selection.
bulk of the plaintiffs' motion argues that defense
counsel committed misconduct during the trial in several
ways. ECF No. 172 at 7-18. The plaintiffs' counsel did
not object during trial to most of the alleged misconduct.
new trial should be granted only where the '"flavor
of misconduct. . . sufficiently permeate[s] an entire
proceeding to provide conviction that the jury was influenced
by passion and prejudice in reaching its verdict.'"
Settlegoode v. Portland Pub. Sch., 371 F.3d 503,
516-17 (9th Cir. 2004) (citations omitted). "There is an
even 'high[er] threshold' for granting a new trial
where, as here, defendants failed to object to the alleged
misconduct during trial." Id. (quoting
Kaiser Steel Corp. v. Frank Coluccio Constr. Co.,
785 F.2d 656, 658 (9th Cir. 1986)). I thus review for plain
or fundamental error. Id. "Plain error is a
rare species in civil litigation encompassing only those
errors that reach the pinnacle of fault. . . ."
Hemmings v. Tidyman's Inc., 285 F.3d 1174, 1193
(9th Cir. 2002) (citation omitted).
defense counsel's statements during opening statements
(about the accident being a "trap" and the
plaintiffs' credibility) were not improper but instead
were based on what was reasonably expected to be presented at
trial. And his statements about his clients' story did
not constitute improper vouching.
plaintiffs incorrectly argue that defense counsel referred to
the plaintiffs' race or skin type. To the contrary, only
the plaintiffs' counsel raised this issue, when she
questioned the testifying doctors whether they would decline
to treat a patient because of the color of his skin. She also
referred to her clients' skin color during her closing
plaintiffs' remaining allegations about the defense
counsel's statements and actions do not rise to the level
of misconduct. Nor did defense counsel's actions permeate
the entire trial to a level that would justify a new trial.
Kehr v. Smith Barney, 736 F.2d 1283, 1286 (9th Cir.
plaintiffs next object that I failed to grant the
cross-motions for mistrial on the second day of the trial.
ECF No. 172 at 18-19. The plaintiffs offer nothing new on
this point, and my refusal to grant a mistrial was not error.
I deny this portion of the motion.
plaintiffs object that I failed to grant their motion for
judgment as a matter of law. Id. at 19-20. Again,
the plaintiffs offer nothing new on this point, and my
refusal to grant the motion was not error. I deny this
portion of the motion.
the plaintiffs object about evidentiary rulings made before
and during the trial. Id. at 20-25. The plaintiffs
offer no new arguments on these issues, and my rulings do not
constitute error. Moreover, to the extent the plaintiffs'
arguments relate to damages evidence, those arguments are
moot because the jury ruled against the plaintiffs on
liability and thus did not get to damages. I deny this
portion of the motion.
the defendants' response to the plaintiffs' motion
for new trial adequately counters each of the plaintiffs'
arguments. I have reviewed each of the plaintiffs'
proffered reasons for a new trial, and none of them