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841 F2d 1129 Leale v. United States District Court for Central District of California a

841 F.2d 1129

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Diane LEALE, Petitioner,
v.
UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OF
CALIFORNIA, Respondent,
John Freeman; Mohamad A. Latif, Real Parties in Interest.

No. 86-7585.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 8, 1988.
Decided March 7, 1988.

Before WALLACE, BEEZER and LEAVY, Circuit Judges.

1

MEMORANDUM*

2

Diane Leale petitions this court for a writ of mandamus due to the district court's grant of a new trial to the defendants. Because the Supreme Court's holding in Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33 (1980) (per curiam), counsels against granting mandamus, and because Leale has failed to demonstrate that she has no other adequate remedy or that her right to the issuance of a writ of mandamus is "clear and undisputed," we deny the petition.

3

* Dr. John Freeman, an orthopaedic surgeon, operated on Leale's mother, Jean Cristallo, to reduce a fractured right elbow. Cristallo was placed under a general anesthetic agent. After surgery Cristallo never regained consciousness. Although her condition was an anesthetic complication, the anesthesiologist, Dr. Richard Macklin, deserted the patient and offered no diagnosis or treatment. As a result, Dr. Freeman called in Dr. Mohamad A. Latif, a critical care specialist, to assist. Dr. Latif considered as part of his differential diagnosis the condition of malignant hyperthermia. Despite the treatment rendered by Dr. Freeman and Dr. Latif (collectively, real parties in interest), Cristallo lapsed into a coma and died two months later in the hospital.

4

Leale, who is the decedent's personal representative and adminstratrix of her estate, brought an action for medical malpractice and wrongful death, alleging failure to diagnose the anesthetic complication of malignant hyperthermia in the decedent after surgery. The original complaint was filed on August 28, 1981, against Dr. Freeman, Dr. Macklin, Hollywood Presbyterian Hospital, and Dr. Thomas Morrow, the assistant surgeon. Leale was unsuccessful in serving Dr. Macklin, who administered the anesthesia and abandoned the patient. After settling with Hollywood Presbyterian Hospital and obtaining a default judgment against Dr. Macklin for $708,991.77, Leale amended her complaint to add Dr. Latif as a defendant.

5

Prior to trial, Leale designated Dr. Ronald Katz, an anesthesiology specialist and expert in malignant hyperthermia, to render an opinion against Dr. Macklin and the nurses at Hollywood Presbyterian Hospital, who had failed to record accurate temperatures at proper intervals. Leale also designated Dr. Max Harry Weil, who is a critical care expert.

6

At trial, Leale relied only on the anesthesiology specialist, Dr. Katz, to express negative malpractice opinions against Dr. Freeman, an orthopaedist, and Dr. Latif, a critical care specialist. In response, Dr. Freeman introduced Dr. Robert Reynolds, a board-certified orthopaedist, board-certified anesthesiologist, and expert in malignant hyperthermia, to express positive medical opinions in favor of himself and Dr. Latif. Dr. Latif's counsel called Dr. Jeremy Cole, a critical care expert, to testify that Dr. Latif did not violate the standard of care. Leale never called her critical care expert to controvert Dr. Cole's opinion.

7

After deliberation, the jury awarded Leale $370,000 in damages. Real parties in interest subsequently moved the respondent district court for a directed verdict and/or motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. Respondent district court granted the motion for a new trial because "the Court finds that there was insufficiency of the evidence to justify the verdict against defendants." Leale moved the respondent district court for reconsideration of its order for a new trial, clarification of that order, or, in the alternative, certification of issues for appeal. Respondent district court denied the reconsideration motion and the alternative motion to certify certain issues for appeal. The court clarified its new trial order "to reflect that the jury reached a seriously erroneous result due to an insufficiency of evidence."

8

Leale now petitions us to issue a writ of mandamus to respondent district court setting aside its new trial order. Alternatively, she requests that we direct respondent district court to show cause why its new trial order should not be set aside.

II

9

Mandamus is a "drastic" remedy that is to be invoked only in "extraordinary situations." Allied Chem., 449 U.S. at 34; see also Public Utils. Comm'n v. FERC, 814 F.2d 560, 562 (9th Cir.1987); Bauman v. United States Dist. Court, 557 F.2d 650, 654 (9th Cir.1977). Traditionally, the writ of mandamus has been used in federal courts only to " 'confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so.' " Allied Chem., 449 U.S. at 35 (quoting Will v. United States, 389 U.S. 90, 95 (1967)). As the Supreme Court has concluded: "Only exceptional circumstances amounting to a judicial usurpation of power, will justify the invocation of this extraordinary remedy." Allied Chem., 449 U.S. at 35. Accordingly, the Supreme Court requires that the petitioning party must have no other adequate means to obtain the relief he desires, and that he satisfy the " 'burden of showing that [his] right to issuance of the writ is "clear and indisputable." ' " Allied Chem., 449 U.S. at 35 (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384 (1953)).

10

In our precedents, we have considered five guidelines in determining whether mandamus review is appropriate: (1) whether the party seeking the writ has no other adequate means to obtain the desired relief; (2) whether the petitioner will be prejudiced or damaged in such a way as to be irremediable on direct appeal; (3) whether the district court's order is clearly erroneous as a matter of law; (4) whether the district court's order is an oft-repeated error or manifests a pattern evincing a consistent disregard for the federal rules of procedure; and (5) whether the district court's order raises new, important, or unique issues, generally of first impression. In re National Mortgage Equity Corp. Mortgage Pool Certificates Litig., 821 F.2d 1422, 1425 (9th Cir.1987); Armster v. United States Dist. Court, 806 F.2d 1347, 1352 (9th Cir.1986); Bauman, 557 F.2d at 654-55. These factors are not susceptible to mechanical application and do not replace reasoned and independent analysis; instead, they are only a useful starting point. In re National Mortgage, 821 F.2d at 1425; Valley Broadcasting Co. v. United States Dist. Court, 798 F.2d 1289, 1292 (9th Cir.1986).1

11

In Allied Chemical the Supreme Court addressed the exact issue which we confront: whether a district court's ordering of a new trial justifies the issuance of a writ of mandamus. The Supreme Court's definitive answer was: "rarely, if ever." 449 U.S. at 36. In that case, the plaintiff was a small importer of refrigerant gas that brought an antitrust suit against all domestic manufacturers of such gas. After a 4-week trial, the jury returned a verdict for the plaintiff and awarded $2.5 million in damages. The trial court subsequently denied the defendants' motion for a judgment notwithstanding the verdict, but granted a motion for a new trial. The district court acknowledged in its order that it had erred during trial in some of its evidentiary rulings and that the evidence did not support the amount of the jury award. Id. at 33.

12

The plaintiff filed a petition for writ of mandamus with the Tenth Circuit, requesting that it instruct the district court to reinstate the jury verdict. The Tenth Circuit issued the writ directing the district court to restore the jury verdict as to liability but permitted the court to proceed with a new trial on damages. Id. at 34.

13

The Supreme Court initially observed that "[a]n order granting a new trial is interlocutory in nature and therefore not immediately appealable." Id. The Court framed the issue before it as "whether a litigant may obtain a review of an order concededly not appealable by way of mandamus. If such review were permissible, then the additional question would be presented as to whether the facts in this particular case warrants the issuance of the writ." Id.

14

After reviewing the "clear and indisputable" burden that the petitioner must satisfy, the Supreme Court reversed the Tenth Circuit's grant of mandamus. Id. at 37. The Court reasoned:

15

A trial court's ordering of a new trial rarely, if ever, will justify the issuance of a writ of mandamus. On the contrary, such an order is not an uncommon feature of any trial which goes to verdict. A litigant is free to seek review of the propriety of such an order on direct appeal after a final judgment has been entered. Consequently, it cannot be said that the litigant "has no other adequate means to seek the relief he desires." The authority to grant a new trial, moreover, is confided almost entirely to the exercise of discretion on the part of the trial court. Where a matter is committed to discretion, it cannot be said that a litigant's right to a particular result is "clear and indisputable."

16

Id. at 36.

17

In the case before us, the respondent district court's new trial order does not justify the issuance of a writ of mandamus. As in Allied Chemical, such an order is not an uncommon feature of any trial that goes to verdict. Leale is free to seek review of the propriety of such order on direct appeal after a final judgment has been entered. As a result, Leale fails to demonstrate that she has no other adequate means to seek the relief she desires. Because the authority to grant a new trial in Leale's malpractice/wrongful death action rests almost entirely in the district court's discretion,2 it cannot be said that her right to a particular result is "clear and indisputable." Id. Accordingly, we must deny Leale's petition.3

III

18

Leale contends that mandamus relief is proper because respondent district court's new trial order was clearly erroneous as a matter of law under Digidyne Corp. v. Data Gen. Corp., 734 F.2d 1336 (9th Cir.1984), cert. denied, 473 U.S. 908 (1985). In Digidyne, we reasoned that motions for a new trial based on insufficiency of evidence may be granted "only if the verdict is against the 'great weight' of the evidence, or 'it is quite clear that the jury has reached a seriously erroneous result.' " Id. at 1347 (citations omitted). In its new trial order, respondent district court stated that "there was insufficiency of the evidence to justify the verdict against defendants." In its clarification, it explained "that the jury reached a seriously erroneous result due to an insufficiency of the evidence." Leale argues that because the district court applied the wrong standard in granting a new trial, mandamus review is proper.

19

Leale is plainly wrong. Even if the district court committed error in its order, which is debatable,4 mandamus does not "run the gauntlet of reversible errors." Will, 389 U.S. at 104 (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 382 (1953)); see also Bauman, 557 F.2d at 654. We have reasoned that a simple showing of error will not satisfy the guideline that the district court's order is clearly erroneous as a matter of law. Levine v. United States Dist. Court, 764 F.2d 590, 594 (9th Cir.1985), cert. denied, 106 S.Ct. 2276 (1986). The Supreme Court has warned against interlocutory review of nonappealable orders on the "mere ground that they may be erroneous": " 'Certainly Congress knew that some interlocutory orders might be erroneous when it chose to make them nonreviewable.' " Will, 389 U.S. at 98 n. 6 (quoting DeBeers Consol. Mines, Ltd. v. United States, 325 U.S. 212, 223, 225 (1945) (Douglas, J., dissenting)).

20

The purpose of mandamus is not to control the decision of the trial court but rather to confine the trial court to the sphere of its discretionary power. Will, 389 U.S. at 104. The circumstances of this case simply fail to demonstrate the necessity for the drastic remedy requested by Leale. We have reasoned that Allied Chemical made it "abundantly clear ... that mandamus is generally not available to correct the erroneous discretionary decisions of the district courts." United States v. Mehrmanesh, 652 F.2d 766, 773 (9th Cir.1980). We explained further that "[t]his is because the error, if made, is rarely 'clear and indisputable' if the decision is discretionary." Id. Whatever error, if any, was committed by respondent district court may properly be corrected on direct appeal.5 Because such an alternative means is available to correct the error or remedy the harm, the writ may not be issued. Arthur Young & Co. v. United States Dist. Court, 549 F.2d 686, 692 (9th Cir.), cert. denied, 434 U.S. 829 (1977); see also Allied Chem., 449 U.S. at 35-36.

21

In addition, Leale's reliance on Digidyne is misplaced.6 Digidyne was the result of a direct appeal from a final judgment in which the defendant's motion for judgment notwithstanding the verdict or for a new trial was granted. Unlike the new trial order, the judgment n.o.v. was directly appealable. Digidyne does not discuss the propriety of mandamus review for a new trial order. The Supreme Court's holding in Allied Chemical is determinative as to that issue before us. The standard that we use to review a final decision on direct appeal is vastly different from that used for issuance of a writ of mandamus. See Allied Chem., 449 U.S. at 34-35. On direct appeal from a final decision, we have broad authority to "modify, vacate, set aside or reverse" an order of a district court, and it may direct such further action on remand "as may be just under the circumstances." 28 U.S.C. Sec. 2106. By contrast, we may issue a writ of mandamus only when "necessary or appropriate in aid of [our] jurisdiction[ ]." 28 U.S.C. Sec. 1651(a); see Allied Chem., 449 U.S. at 34-35. Although a simple showing of error may suffice to obtain a reversal on direct appeal, to issue a writ of mandamus under such circumstances " 'would undermine the settled limitations upon the power of an appellate court to review interlocutory orders.' " Id. at 35 (quoting Will, 389 U.S. at 98 n. 6). Leale fails to show any exceptional circumstances amounting to a judicial usurpation of power that would justify invocation of mandamus. See Allied Chem., 449 U.S. at 35; Will, 389 U.S. at 95.

22

Whether the district court's order is clearly erroneous as a matter of law is only one factor we consider in deciding the propriety of mandamus review. See Bauman, 557 F.2d at 654-55. Because Leale is free to seek review of respondent district court's grant of a new trial after retrial and a final judgment has been entered, she has an adequate means other than mandamus to challenge the new trial order. See Allied Chem., 449 U.S. at 36. The availability of an adequate alternative remedy clearly precludes mandamus review. Nova Stylings, Inc. v. Ladd, 695 F.2d 1179, 1180 (9th Cir.1983).

23

Leale has not demonstrated that she would be damaged or prejudiced by the grant of a new trial in a way not correctable on appeal. Although she may endure some hardship as a result of a second trial, mandamus cannot be used as a substitute for a direct appeal. Not every inconvenience or hardship, particularly when caused by upholding the general rule that only final judgments are reviewable, warrants issuance of the writ. See American Fidelity Fire Ins. Co. v. United States Dist. Court, 538 F.2d 1371, 1376 (9th Cir.1976). Leale also fails to show (1) that the district court's alleged error in granting the new trial is one that is repeated often, or manifests a persistent disregard of the federal rules; or (2) that the district court's new trial order raises new and important problems, or issues of law of first impression. Indeed, the Supreme Court has already considered the propriety of mandamus review of a new trial order and has found them to be rarely, if ever, justifiable. Allied Chem., 449 U.S. at 36.

CONCLUSION

24

Leale has failed to demonstrate that her right to mandamus relief is "clear and indisputable" under controlling Supreme Court and Ninth Circuit precedents. She has an adequate remedy other than mandamus, namely, direct appeal upon final judgment. Moreover, the circumstances of this case are not sufficiently extraordinary or extreme so as to warrant such a drastic remedy as mandamus. Respondent district court's new trial order, even if erroneous, involves no judicial usurpation of power and is correctable upon appeal. Because the district court's authority to grant a new trial is within its discretion, it can hardly be said that Leale's right to a particular result satisfies the standards for mandamus review. See id. Accordingly, we deny Leale's petition for a writ of mandamus.7

25

PETITION DENIED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

1

We have also enumerated related considerations, such as whether the injury alleged by the petitioner, although not correctable on appeal, is the kind that justifies invocation of mandamus authority; whether the petition presents an issue of law that may repeatedly evade appellate review; and whether there are other compelling factors relating to the efficient and orderly administration of the district courts. In re Cement Antitrust Litig., 688 F.2d 1297, 1301 (9th Cir.1982), aff'd sub nom. Arizona v. United States Dist. Court, 459 U.S. 1191 (1983)

2

A new trial may be granted "for any of the reasons for which new trials have heretofore been granted in actions at law," Fed.R.Civ.P. 59(a), which includes insufficiency of evidence

3

If we were to overturn the respondent district court's grant of a new trial by way of mandamus, it would undermine the policy against piecemeal appellate review. Allied Chem., 449 U.S. at 36. Under Leale's rationale, any discretionary order, regardless of its interlocutory nature, may be subject to immediate judicial review. As the Supreme Court reasoned, "[s]uch a rationale obviously encroaches on the conflicting policy against piecemeal review, and would leave that policy at the mercy of any court of appeals which chose to disregard it." Id

4

It is not readily apparent on the face of the order how the district court committed clear error when Digidyne accepts the standard that the "jury reached a seriously erroneous result" as a correct one. 734 F.2d at 1347 (stating that a new trial motion based on insufficiency of the evidence may be granted if it is quite clear that the jury has reached a seriously erroneous result)

Leale also contends in her brief that the district court is required to "justify its decision in light of the evidence and the law in order to provide litigants with the factual and legal basis of its ruling." (Emphasis in original.) However, under Fed.R.Civ.P. 52(a), the district court is not required to enter supporting findings of fact and conclusions of law when granting a motion for a new trial. Allied Chem., 449 U.S. at 36 n. 3.

5

It is well-settled that we may not grant mandamus review over a matter subject to direct appeal. See Survival Sys. Div. v. United States Dist. Court, 825 F.2d 1416, 1418 (9th Cir.1987), cert. denied, --- U.S. ---- (1988); Badham v. United States Dist. Court, 721 F.2d 1170, 1171 (9th Cir.1983); Diamond v. United States Dist. Court, 661 F.2d 1198, 1198 (9th Cir.1981)

6

Leale also contends that respondent district court's new trial order is erroneous as a matter of law under the First Circuit's rationale in Coffran v. Hitchcock Clinic, 683 F.2d 5 (1st Cir.), cert. denied, 459 U.S. 1087 (1982). We quoted Coffran with approval in Digidyne. 734 F.2d at 1347. Just as with Digidyne, however, Leale's reliance on Coffran is misplaced. Because the grant of a new trial was interlocutory and unappealable, Coffran was the result of a direct appeal from a final judgment after a second jury trial. To avail herself of Coffran's ruling, Leale must seek the same form of relief, i.e., direct appeal after a final judgment. Moreover, Coffran accepts the standard that the "jury reached a seriously erroneous result" as a correct one. 683 F.2d at 6

7

At oral argument, petitioner's counsel drew our attention to an order issued by a previous motions panel of this court directing "the petitioner [to] submit to this court a complete copy of the transcript of district court proceedings." It stated further: "Upon receipt of the transcript, this matter will be referred to a merits panel for argument and decision." Contrary to petitioner's assertion at oral argument, this order merely referred the petition, in its entirety, to this panel. Because we decide that mandamus relief is inappropriate in this case, review of the reporter's transcript was unnecessary