Metropolitan News-Enterprise


Friday, April 21, 2023


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C.A. Delineates Differing Standards for Granting Judgments NOV, New Trial


By a MetNews Staff Writer


The Court of Appeal for this district has thrown out a trial court order for a partial judgment notwithstanding the verdict in favor of a Culver City plastic surgeon, sued for the wrongful death of a patient, but declared that the plaintiffs are wrong in assuming that this means that a separate order by Los Angeles Superior Court Judge James A. Kaddo granting a new trial must also be reversed.

Presiding Justice Laurence D. Rubin of Div. Five said in an unpublished opinion filed Wednesday that the judgment notwithstanding the verdict, or judgment “non obstante veredicto” (“JNOV”), on the issue of causation cannot stand because such a motion “may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.”

Testimony by the plaintiffs’ medical experts that negligence on the part of Dr. Kenneth Hughes caused the death of Arleen Vasquez during gluteal fat grafting—popularly denominated a “Brazilian butt lift”—constituted “substantial evidence,” although Kaddo found fault with that testimony, Rubin declared.

“Plaintiffs’ experts offered a reasoned explanation why it was more probable than not one of defendant’s negligent acts was a cause-in-fact of Vasquez’s death,” he said.

Plaintiffs’ Assumption

Rubin went on to say:

“Plaintiffs entirely fail to address whether it was error for the trial court to grant a new trial on the issue of causation. By their silence, plaintiffs apparently have assumed that JNOV and new trial orders are subject to the same standard of review on appeal. Not so.”

The presiding justice pointed out that deference must be accorded an order for a new trial even where the plaintiffs won the jury’s favor and there was substantial evidence in support of their verdict.

Supreme Court Opinion

He cited the California Supreme Court’s 2000 decision in Lane v. Hughes Aircraft Co. Then-Justice Janice Rogers Brown (now retired) said in that opinion:

“[T]he trial court’s factual determinations, reflected in its decision to grant the new trial, are entitled to the same deference that an appellate court would ordinarily accord a jury’s factual determinations.

“The trial court sits much closer to the evidence than an appellate court. Even the most comprehensive study of a trial court record cannot replace the immediacy of being present at the trial, watching and hearing as the evidence unfolds. The trial court, therefore, is in the best position to assess the reliability of a jury’s verdict and, to this end, the Legislature has granted trial courts broad discretion to order new trials. The only relevant limitation on this discretion is that the trial court must state its reasons for granting the new trial, and there must be substantial evidence in the record to support those reasons.”

Rubin’s Opinion

Rubin wrote:

“Given this authority, plaintiffs are not free to argue, essentially, ‘There was substantial evidence to defeat a JNOV; it follows there was substantial evidence to defeat the grant of a new trial.’ Unlike a court considering a JNOV motion, the court ruling on a new trial motion sits in an entirely different chair….

“We need not review the evidence justifying the trial court’s decision, sitting as the ‘13th juror,’ to order a new trial because plaintiffs do not challenge the new trial ruling on appeal.”

Accordingly, a new trial was ordered. The jury in the trial in Kaddo’s courtroom assessed past economic damages at $231,292, reckoned a future economic loss of $784,942, and set damages for future nonecomonic loss at $3 million. Kaddo determined that if any damages stood, the noneconomic loss could not exceed $250,000 under the Medical Injury Compensation Reform Act of 1975 and damages would have to be reduced in light of a settlement with another doctor.

The plaintiffs were a daughter of the decedent and the guardian ad litem for another daughter, a minor.

The case is Leon v. Hughes, B307344.

Representing the plaintiffs/appellants were Ventura attorney Michael E. Reznick and Las Vegas lawyer Lawrence J. Semenza. Arguing for Hughes were Kenneth R. Pedroza and Matthew S. Levinson of the San Marino firm of Cole Pedroza and mid-Wilshire attorney Howard A. Kapp.

Hughes maintains on his website this statement, posted in 2018:

“Dealing with thousands of members of the public each year as a busy plastic surgeon like Dr. Kenneth Hughes, Los Angeles plastic surgeon, will inevitably result in threats of lawsuits for negligence or malpractice or demands for refunds or threats of negative reviews if monies are not paid. Extortionists and fraudsters are common, and Dr. Kenneth Hughes of Hughes Plastic Surgery does not give in to these individuals but fights them and wins in every case.”

There is no update indicating that he has not won in the lawsuit based on the death of Vasquez.

His website represents that he is a “Harvard-trained, board-certified plastic surgeon,” a claim that is also posted elsewhere. However, he was not trained as a plastic surgeon at Harvard; he received an undergraduate degree in biology there and his medical training was at the University of Alabama.

In 2019, Hughes came before the Medical Board of California in connection with several counts, including the alleged wrongful death; no action against him was taken.


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