Gousse v. City of Los Angeles

Filed 4/10/07 Gousse v. City of Los Angeles CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment and order of the Superior Court of Los Angeles County, Elizabeth A. Grimes, Judge. Affirmed.

Rockard J. Delgadillo, City Attorney, Janet G. Bogigian, Assistant City Attorney, for Defendants and Appellants City of Los Angeles and the Los Angeles Police Department.

Haight Brown & Bonesteel, Thomas N. Charchut, Maureen Haight Gee; Carlson, Calladine & Peterson, Donald W. Carlson; Call, Jensen & Ferrell and Scott J. Ferrell for Defendants and Appellants Budget Rent-A-Car Corporation and Cherokee Acquisition Corporation.

Greene, Broillet & Wheeler, Browne Greene, Mark T. Quigley, Robert D. Jarchi; Esner & Chang, Stuart B. Esner and Andrew N. Chang for Plaintiffs and Appellants.

* * * * * *

Angelo Gousse, M.D., was arrested by Los Angeles police officers while driving a car rented from Budget Rent-A-Car (Budget). Unbeknownst to Dr. Gousse, the license plates on the car that Dr. Gousse rented had been issued to a car that had been reported stolen. A jury found that both the City of Los Angeles (City) and Budget had been negligent, and awarded $33,224,378 in damages to Dr. Gousse and his wife. Concluding that the damage award was so staggeringly disproportionate to the injuries suffered that the results shock the conscience, the court granted a motion for new trial on the issue of damages. The court denied Citys and Budgets motions for a new trial on liability, and their motions for a judgment notwithstanding the verdict.

Dr. Gousse appeals from the order granting a new trial on the issue of damages. City and Budget have both appealed, contending that their motions for a new trial on the issue of liability and for a judgment notwithstanding the verdict should have been granted.

We affirm.

FACTS

1. Dr. Gousse Rents a Car from Budget

Dr. Gousse, a highly credentialed and accomplished urological surgeon with a specialty in female reconstructive urology, is an associate professor at the University of Miami medical school. He arrived at the Los Angeles airport (LAX) on February 9, 2001, to attend a conference at the University of California - Los Angeles (UCLA). At LAX, Dr. Gousse rented from Budget a red Ford Taurus with a license plate bearing the number 4KOU368. California DMV records showed this license plate registered to a beige Taurus,^[1]also owned by Budget. Dr. Gousses predicament came about because the beige Taurus had been reported stolen in July 2000. In other words, Budget rented a car to Dr. Gousse that carried the license plates of a stolen car.

The mistake in putting the wrong plate^[2]on the red Taurus eventually rented to Dr. Gousse was, of course, Budgets. This mistake occurred when two Ford Tauruses, one red and the other beige, were processed into Budgets rental fleet sometime in the year 2000. The license plates of these two cars were inadvertently switched by Budget personnel installing the plates. The mistake is at least partly explained by the fact that the two license plates were very similar: license plate number 4KOU368 was installed on the red Taurus and license plate 4KOU370 was placed on the beige Taurus. (DMV records showed the reverse.) Budget states in its brief that there was no real inspection procedure to ensure [that] the correct plate was installed.

The stolen beige Taurus was never recovered. The red Taurus, with the plate of the stolen beige Taurus, was rented over 40 times between the time the beige Taurus was stolen and the red Taurus was rented to Dr. Gousse.

When Dr. Gousse checked out from the Budget rental lot, the rental agreement showed the plate that was correct in terms of DMV records, i.e., 4KOU370. The plate on the car, however, was 4KOU368. At this point, Budgets procedures required that the customer be sent back to the rental counter to clear up the discrepancy. Instead, the Budget attendant crossed off 70 on the rental agreement and inserted by hand 68. Although there appears to have been some unusual delay in clearing Dr. Gousse, he was eventually permitted to exit the lot.

The fact that the red Taurus with the wrong plate was rented over 40 times, and that between 20 and 30 of these rentals took place at LAX, could lead one to conclude that Budget was careless, or indifferent, about its control procedures. Nor was Budget assisted by the testimony of its employee Paul Santos who testified that the red Taurus with the wrong plate continued to be rented out by Budget for almost three years after the incident with Dr. Gousse. It turned out, however, that Santos was wrong. The license plate was confiscated by the police when Dr. Gousse was arrested and the red Taurus was equipped with new license plates before it was rented again.

As far as Budgets actions are concerned, we take note of the following statement made by Budgets counsel in his opening statement: What the evidence will show in this case is that Budget, through its employees, made some errors in the putting on of the license plates of these cars and the checkout. And Budget stands behind and takes and accepts full responsibility for what occurred, and concedes that in this case its conduct, because it has policy and procedures and other things that should be done, that it was negligent in allowing this car to go out with those wrong plates.

2. Dr. Gousses Arrest

The next day, Dr. Gousse attended the symposium at UCLA. About 11:00 p.m., he went for a walk around Westwood. He then drove downtown to visit a Salsa club where he danced for a while. He left the club around 2:00 a.m. to return to his hotel.^[3]

The incident giving rise to this lawsuit began when Dr. Gousse attracted the attention of the police by driving too slowly at about 30-35 miles per hour on the Santa Monica freeway. The police car was being driven by Officer Rojas, who was designated the primary officer. His partner was Officer Mora, who operated the Mobile Digital Transmitter or MDT, which enabled the officers to run license plate checks from the police vehicle. Mora ran the license plate on the car Dr. Gousse was driving. The report came back within a few seconds, about 2:18 a.m., stating that the plate belonged to a 2001 Ford Taurus, color bge, which Mora interpreted to mean burgundy, that had been stolen in San Jose, California.

Because they were now dealing with what they believed to be a stolen vehicle and because the slow speed at which Dr. Gousse was driving made the officers suspect that they were dealing with a drunk driver, Rojas decided to effect a high-risk felony prone-out arrest with helicopter assistance. Moras role in this decision, which proved to be critical, is somewhat uncertain. While at trial he testified that it was both of our decisions, in his deposition he testified that he and Rojas did not discuss this decision. In any event, it is clear that Mora agreed with the decision to effect a high-risk felony prone-out arrest.

It appears that, as far as Rojas and Mora were concerned, the critical fact was that the MDT screen showed the Taurus to be a stolen car. Once this fact was out, neither Rojas nor Mora looked at other MDT screens that would have shown the car to be a rental owned by Budget.

We pause in our chronological account to summarize the testimony on police standards governing high-risk arrests. Preliminarily, we take note of a Los Angeles Police Department (LAPD) training bulletin that states that the high-risk prone search is the most secure method of controlling a suspect, but that it should not be used automatically in every high-risk situation. The bulletin states that officers should use their discretion in deciding whether to use the high-risk prone search, and that it should not be used routinely or to intimidate suspects. While the record does not indicate how long this policy has been in effect, there is no question that the bulletin does reflect LAPD policy.

While the experts agreed that there was probable cause to arrest Dr. Gousse, Citys and Dr. Gousses experts disagreed on the need for a high-risk prone search. Dr. Gousses expert, retired LAPD Deputy Chief Louis Reiter, did not think there was any reason for the prone search. The principal reason for this was that, as our summary will show, Dr. Gousse complied with all of the police directives and was cooperative. LAPDs Sergeant Markel, on the other hand, testified that, since there was reason to think that the driver was drunk and the information was that the vehicle was stolen, there was a significant risk to the officers and that, for this reason, the prone search was justified.

Mora called for a backup patrol unit to be used as a traffic buffer and for a helicopter. The backup unit arrived and was composed of Officers Achziger and Oropeza.

Rojas activated the red light and siren; Dr. Gousse pulled over and stopped. Rojas ordered Dr. Gousse to turn off the ignition, throw the keys out the door, step out of the car, put his hands up, kneel and then lie on the ground with his face away from the car and his hands out at his side.

Dr. Gousse did as he was told. Dr. Gousse testified that he was terrified, a sentiment that was exacerbated when he saw several police vehicles and officers with drawn guns. He managed to say as he was lying on the ground and as he heard officers approach: I am not a criminal. Im innocent. You know, Ive done nothing wrong. You got the wrong guy. No one replied. Instead, first one, and then his other arm was seized, put behind his back and handcuffs were applied to his wrists. Dr. Gousse testified that he immediately felt pain in his left shoulder, and that the handcuffs crushed his wrist. Dr. Gousse remained in the prone position on the ground for two or three minutes.

While Dr. Gousse testified that he complained immediately, and repeatedly, that the handcuffs were too tight, City offered the testimony of Officer Oropeza who handcuffed Dr. Gousse; Oropeza testified that he did not use much force in putting on the handcuffs because Dr. Gousse was very cooperative. Oropeza checked the handcuffs for tightness and he double-locked them by activating a button that keeps them from getting tighter.

Dr. Gousse testified that, after he was handcuffed, he was pulled by his arms into a standing position, which suddenly, and painfully, subjected his arms and shoulders to bearing the entire weight of his body.^[4] This contravened LAPD policy, which calls for suspects to be rolled onto their legs to be allowed to stand up under their own power, in order to prevent the type of strain that Dr. Gousse testified he was subjected to. Dr. Gousses account was contradicted by Officers Achziger and Oropeza who testified that they helped Dr. Gousse to his feet and that they did not lift him up by his arms.

Once on his feet, Dr. Gousse again said that he was not a criminal and that he was innocent. He said that he was a visiting doctor, that if they did not believe him, they could take his wallet and look at his medical license and his drivers license; he told the police that the car was a rental and that the rental agreement was in the glove compartment. The only recorded response to these statements is that of LAPD Sergeant Arellano, who told Dr. Gousse that the car was stolen and that they would have to transport him off the freeway because it was unsafe there. Dr. Gousse also testified that officers did look at his wallet and his licenses, but did or said nothing to acknowledge his identity. Otherwise, the scene continued as before, with the helicopter overhead with its floodlights on, police officers standing around and, according to Dr. Gousse, talking and laughing among themselves.

Sergeant Arellano directed Rojas and Mora to transport Dr. Gousse to the station. Before the officers did so, Arellano spoke with Dr. Gousse while the latter was seated in the police car. Dr. Gousse repeated that he was doctor, that he was visiting Los Angeles for a seminar at UCLA, that the car was a Budget rental, and that the rental documents were in the glove compartment. Arellano conceded at trial that it would have taken about five minutes to check Dr. Gousses identification, walk to the rental car and inspect the rental documents, and to run the vehicle identification number (VIN number) on the MDT. He explained that he did not do these things because it was 2:30 in the morning, a lot of people on the freeway at this time have been drinking, and he was afraid that someone was going to go right over the median the same way I had and plow into the rear of one of these cars. He wanted to get everyone, including Dr. Gousse, off the freeway as soon as possible. As far as Arellano was concerned, he could not, in any event, have released the car to Dr. Gousse since he was not the registered or legal owner.

Dr. Gousse testified that on the way to the station he complained repeatedly about the tightness of the handcuffs but the officers did nothing. However, one of the officers said: Hey, boy, you know where you are now, you are in Los Angeles, California. Dr. Gousse felt ridiculed by this. Rojas and Mora testified that Dr. Gousse never complained about the handcuffs.

In the meantime, Oropeza, still at the scene, ran the license plate against the VIN number and discovered the mismatch. The VIN number yielded the fact that the vehicle was owned by Budget. Oropeza had the car impounded and proceeded to the police station where he reported the fact of the mismatched license plates.

3. Dr. Gousse Is Released

Having arrived at Rampart station, Dr. Gousse was taken, still handcuffed, into the station, where he was asked by an officer if he knew why he was being brought to the station. Dr. Gousse answered that he had been asking for that information. He was told in reply that it was because he was driving a stolen car. Dr. Gousse pointed out that it was a rental, and not a stolen car. The officer said that there would have to be an investigation; when asked how long this would take, the reply was whatever it takes, it takes. Dr. Gousse asked for the handcuffs to be taken off because his hands were turning numb and he was in excruciating pain; this request was denied. Next, in Dr. Gousses words: [O]ne police officer came by and he said, well, look guys, this guy ‑‑ all his I.D.s checked out. Why dont we release his cuffs. But if he agrees for us to release his cuffs, we need to put him in a holding cell. Dr. Gousse chose the cell, and the handcuffs were removed; it was now 2:40 a.m. (The evidence was that he was handcuffed at 2:24 a.m.; the trip to the station took eight to 10 minutes.)

By about 3:00 a.m., it had become clear to the police that there had been a mixup, and that the car driven by Dr. Gousse was a Budget rental car. Sergeant Burch took Dr. Gousse out of the holding cell, and took him to the conference room, where the sergeant attempted to explain why the arrest had happened. Sergeant Burch took Dr. Gousse back to his hotel.^[5]

4. Criticisms of Police Procedures

We have already noted that Dr. Gousses expert Reiter strongly disagreed with the decision to subject Dr. Gousse to a high-risk prone search. Reiter had other criticisms, as well.

Reiter thought that the police could have easily checked the VIN number right after detaining Dr. Gousse, as Oropeza eventually did. They would have learned that the VIN number matched the color of the car Dr. Gousse was driving, and the information on the rental contract. Importantly, the police could have checked the glove box and found the rental agreement, which established that Dr. Gousse had legal possession of the car. In the same vein, the police should have taken note of the fact that the ignition key ring had a Budget logo. And if the police had checked Dr. Gousses identification in his wallet, they would have learned that he was a medical doctor visiting from Florida.

Although Oropeza claimed that he checked the handcuffs for tightness and double-locked them to prevent them from being too tight, no one saw him do this. In light of Dr. Gousses complaints about the handcuffs, there was some question about the credibility of Oropezas testimony about the handcuffs. In any event, Reiter found that LAPDs policy that handcuffs should be double-locked was inadequate since double-locking should be required as a matter of course.

5. Disclaimers and Admissions by the Police

Mora and Rojas each testified that they never heard Dr. Gousse say to anyone that he was a doctor; that he was innocent; that this was a rental car; and that the rental documents were in the glove compartment. Mora claimed that it was only at the police station that he learned that Dr. Gousse claimed that he was a doctor visiting from Florida. Rojas completed the field interview at the police station; he claimed he was unable to understand Dr. Gousse because of his accent. The jurys verdict demonstrates that these disclaimers were not credible.

Mora conceded that, contrary to LAPD policy, he never checked the VIN number. He also conceded that he knew that rental car companies sometimes make mistakes when they report a car as stolen. And, despite eight years experience and more than 100 grand theft auto stops, Mora testified that he did not recognize the abbreviation bge on the MDT screen as standing for beige.

6. Standard of Review: Damages

In evaluating evidence of damages, the roles of the trial and appellate court are different. As far as the trial court is concerned, [a] new trial shall not be granted . . . upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. (Code Civ. Proc.,  657.) Thus, while the trial court is required to weigh the evidence of damages (8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court,  37, p. 542), [t]he appellate court does not weigh the evidence on damages, and will reverse a judgment on appeal only if no substantial evidence supports the award. (Ibid.) In the appeal involving the trial courts determination that the damages awarded by the jury were excessive, [a]ll presumptions favor the trial courts determination [citation], and we review the record in the light most favorable to the judgment. (Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 259, italics added.)

A. Evidence of Physical Injuries

We begin with the circumstance that Dr. Gousse flew back to Miami on an 8:00 a.m. flight after the harrowing events recounted above. He arrived in Miami at 6:30 p.m., was picked up by his wife, and by about 8:30 p.m. he was in the emergency room at Memorial Hospital West.

The emergency room records do not document any complaint about Dr. Gousses left shoulder; as we show post, a substantial part of Dr. Gousses claim for damages was based on injuries sustained by his left shoulder (brachial plexus nerve injury). The emergency room records document the complaint about Dr. Gousses wrists, which the hospital record notes were slightly tender laterally, but without significant contusion, abrasion, or laceration; neurovascular status was noted as sensation impaired.^[6]X rays of his wrists were negative, showing no significant abnormalities, and no evidence of soft tissue swelling, arthritis, fractures or effusions. The diagnosis was wrist contusion.

Dr. Elizabeth Anne Ouellette, chief of hand surgery at the University of Miami Miller School of Medicine, saw Dr. Gousse three days after he returned to Miami. Based on Dr. Gousses account of events and her own examination, she diagnosed injuries to the left radial sensory nerve and the left brachial plexus. The radial sensory nerve passes over the bony prominence on the thumb side of the wrist, and the brachial plexus is the location where the nerves exit the neck and pass through the shoulder area and down into the arm and hand. Dr. Ouellette posited that the injury to the left brachial plexus was caused by wrenching Dr. Gousses shoulders behind him, by forcing his arms behind his back and by lifting him up by his arms.

Three nerve conduction studies were performed on the brachial plexus in February and April 2001, and in January 2003. The purpose of these tests was to determine if Dr. Gousse had sustained any damage to the nerves of the brachial plexus, the brachial plexus itself, or the nerves coming from the brachial plexus. All three tests came up negative, indicating that there was no damage to the nerves. Notwithstanding these test results, Dr. Gousses expert Dr. Ludwig concluded that the there were brachial plexus nerve injuries; Dr. Ludwigs opinion was based on Dr. Gousses complaints that his left arm was weak and numb, and that he had pain in his shoulder. Two defense experts, Drs. Fortanasce and Brody, disagreed with Dr. Ludwig, noting, among other things, that there was no atrophy or significant decrease in range of movement, both of which are physical indications of a brachial plexus nerve injury.

Defense expert, Dr. Brody, testified that a brachial plexus nerve injury is caused by severe trauma, such as might occur in a motorcycle accident or in football injuries, where the shoulder is dislocated, causing excruciating pain.^[7]This point was supported by Dr. Gousses own expert, Dr. Lawrence, who in 36 years had never treated a brachial plexus nerve injury caused by handcuffs or by being lifted up by the arms. Dr. Brody (see fn. 7, ante) agreed, testifying that he had never seen anybody sustain injury to the brachial plexus nerves by being lifted off the ground. There was no documentary evidence that Dr. Gousse sustained an injury to his shoulder of the type and magnitude described by Dr. Brody. (See fn. 7, ante.) There is also no indication of severe pain in the medical records of the emergency room at Memorial Hospital West, where severe pain in Dr. Gousses shoulder should have been noted.

Dr. Ouellette thought that Dr. Gousse could benefit from surgery for the brachial plexus nerve injury, and she recommended this several times. The recommended procedure removes scar or other constricting tissue from around the nerves. However, Dr. Gousse was unwilling to undergo this procedure, a decision that his wife supported.^[8]

Dr. Ludwig, Dr. Gousses expert, testified that there was handcuff neuropathy because Dr. Gousse complained of burning pain in the radial sensory nerve. However, Dr. Ludwig conducted no nerve conduction studies and took no X rays. Defense experts Drs. Fortanasce and Brody conceded that Dr. Gousse might have sustained radial sensory nerve injury but both experts testified that such injuries clear up in a few weeks, or at most in two months. Dr. Brody found no evidence of radial sensory nerve injury when he examined Dr. Gousse.

Dr. Gousse also claims that he suffers from complex regional pain syndrome, referred to as RSD. However, Dr. Gousses own expert, Dr. Ludwig, does not think that he continues to suffer from this malady, although at one time he did. Dr. Ouellette did not see any symptoms of RSD when she examined Dr. Gousse. As it is, Dr. Gousse does not exhibit any of the symptoms of RSD, which are swelling, skin discoloration, mottling, sweating and stiff fingers.

Dr. Gousse was videotaped without his knowledge in April 2003 while he was in public places. Defense expert Dr. Brody noted that the video shows Dr. Gousse getting in and out the car, a sports utility vehicle, using his left hand freely, and loading and unloading the car. His left arm moved in a normal fashion, and he carried items in his left hand.

B. Evidence of Emotional Injuries

Psychiatrist Lester Zackler spent three hours with Dr. Gousse and two hours with Mrs. Gousse.^[9] Dr. Zackler concluded that Dr. Gousse was suffering from severe posttraumatic stress disorder, which includes symptoms of sleeplessness, depression, anxiety disorder, fear, flashbacks and feelings of humiliation. Dr. Zackler thought that, because of his race and background, being held at gunpoint and restrained in handcuffs was an especially terrifying event for Dr. Gousse. As a Black man who grew up in Haiti in a Black culture, he had no experience with racial discrimination; this incident, which Dr. Gousse believed was racially motivated, was therefore an especially traumatic event for Dr. Gousse. Dr. Zackler testified that Dr. Gousse is unable to sleep, has difficulty concentrating, is hyper vigilant, and he is fearful; he suffers from violent, unsettling nightmares in which he relives this traumatic incident. According to Dr. Zackler, Dr. Gousses family life has been profoundly, and catastrophically, affected by this incident, in that he has become dependent on his wife in a way that has been demeaning to him.

Dr. Zackler thought that Dr. Gousses posttraumatic stress disorder was in partial remission. In Dr. Zacklers words, the post-traumatic stress disorder will over time continue to resolve so that he will still have emotional scars but the intensity of his distress will get less.

Dr. Gousse testified that his life with his family, which involved a lot of physical play and games, has completely changed for the worse. He no longer plays with his children and does not engage in any sports; previously, he ran a marathon and played basketball and table tennis. He testified that he is in great and constant pain, particularly under his left armpit extending into his shoulder. Dr. Gousse feels the incident has changed him profoundly. I feel sometimes Im living inside a different person. I dont even recognize myself.

Dr. Gousses priest, Father Pierre Yves Jocelyn, testified that before the incident Dr. Gousse was a happy man, a wonderful father and husband, and very excited about his profession. After the incident, he became sad. He became pessimistic, and hes not the same. He was not the same[,] day and night.

C. Evidence of Loss of Income

The jury awarded Dr. Gousse $8,347,378 for lost earning capacity. This award was predicated on Dr. Gousses claim that the injuries he sustained prevented him from entering private practice.^[10] Dr. Gousse claimed that before the incident he had spoken with Florida urologist Dr. Gheiler about joining him in his private practice. After the incident, he told Dr. Gheiler that he was disabled, that he had not recovered, and that he could not enter private practice.

Dr. Gheiler testified he approached Dr. Gousse about private practice in May 2002, over a year after the incident, but Dr. Gousse evinced no interest; he just smiled and dismissed the suggestion. Every time Dr. Gheiler brought the matter up, Dr. Gousse shrugged it off without giving a reason why. Apparently, Dr. Gheiler pressed the matter because he thought that Dr. Gousse would be extremely successful in private practice. Dr. Gheiler flatly denied that Dr. Gousse had ever committed himself to entering private practice with Dr. Gheiler.

Dr. Gousse presented the testimony of economist Jonathan Cunitz to show how much Dr. Gousse would have earned in private practice. Based upon his interviews with five urologists, Cunitz projected that Dr. Gousses earnings in private practice would have risen to $1 million a year by 2011. Using a work-life expectancy of 63.6 years, according to Cunitz under the best case scenario the present value of Dr. Gousses earnings derived from private practice would have been $9,920,782. Under a less optimistic scenario, Cunitz estimated the present value of lost earnings to be $6,667,975. The jury awarded $8,294,378 for lost earning capacity, which is approximately halfway between Cunitzs high and low figures.

D. Mrs. Gousses Loss of Consortium Claim

The jury awarded Mrs. Gousse $2 million on her loss of consortium claim.

Mrs. Gousse was 12 when she first met Dr. Gousse; they were married 10 years later, when he was in his last year in medical school. They have a young son and daughter. Mrs. Gousse is a pharmacist.

Mrs. Gousse testified that after the incident, Dr. Gousse was unable to engage in physical activities with the children, as he had done before, that he was in pain, sad and moody, and that it was hard to please him. Dr. Gousse was also reluctant to engage in sexual relations. She assumed for a long while that this was because he had been sexually assaulted while in custody in February 2001 in Los Angeles. She also became reluctant to have sexual relations because of this assumption on her part. Although Dr. Gousse denied that he had been sexually assaulted, for a long while she did not believe him.

PROCEDURAL EVENTS

The operative first amended complaint alleged against Budget causes of action for false arrest, false imprisonment and negligence. The complaint alleged the same causes of action against City, in addition to causes of action for civil rights violations and civil assault and battery. The complaint included Mrs. Gousses loss of consortium claim. Budget and City cross-complained against each other.

In June 2003, the trial court granted summary adjudication in favor of Budget, and dismissed the claims for false arrest and imprisonment.

The trial court made the following rulings on in limine motions: (1) denied Budgets motion to exclude evidence of lost earnings for a future unestablished business; (2) granted Budgets motion to exclude evidence or argument of other alleged incidents involving rental cars and arrests; (3) denied Budgets motion to exclude evidence of prior rentals of the red Taurus that had been rented to Dr. Gousse; and (4) granted Citys motion to exclude references to prior specific instances of police misconduct.

We take up issues concerning the selection and performance of the jurors as we discuss the specific contentions that address these issues.

The case went to trial in October 2003. Near the end of trial, the plaintiffs withdrew their assault and battery cause of action against City.

Next, the trial court granted Citys motion for directed verdict on the causes of action for false arrest and false imprisonment. The court denied Budgets motion for a directed verdict as to the recovery of future lost earnings.

After three weeks in trial, the case went to the jury on the negligence causes of action against City and Budget, and the civil rights cause of action against City. The jury deliberated for two days. In its verdict, the jury found for City on the civil rights cause of action, and against City and Budget on the sole remaining negligence cause of action. It awarded the following damages: $127,000 for past economic loss; $8,294,378 for lost earning capacity; $53,000 for future medical expenses; $6.2 million for past noneconomic loss; $16.5 million for future noneconomic loss; and $2 million on Mrs. Gousses loss of consortium claim. The jury apportioned liability at 43 percent to City, and 57 percent to Budget.

City and Budget both made motions for new trial and for a judgment notwithstanding the verdict. The trial court denied the motion for a judgment notwithstanding the verdict, and the motions for new trial on the issues of liability, juror misconduct, insufficiency of the evidence and rejected the contention that the verdict was against the law. The trial court granted the motion for new trial on the ground of excessive damages.

DISCUSSION

DR. AND MRS. GOUSSES APPEAL^[11]

1. The Trial Courts Granting of the Motion for New Trial on the Ground of Excessive Damages

Where an appellate court reviews the action of a trial court in granting a new trial on the ground of excessive damages, every intendment must be indulged in support of the action of the court below and its order will not be disturbed if the question of its propriety is open to debate. (Collins v. Lucky Markets, Inc. (1969) 274 Cal.App.2d 645, 652-653.) As we have observed, the trial courts determination of whether damages were excessive is entitled to great weight because it is bound by the more demanding test of weighing conflicting evidence than our standard of review under the substantial evidence rule . . . . (Hilliard v. A. H. Robins Co. [(1983)] 148 Cal.App.3d [374,] 414, fn. 28.) (Fortman v. Hemco, Inc., supra, 211 Cal.App.3d 241, 259.) As we have already observed (see text, p. 10, ante), the question on appeal is whether there is substantial evidence that supports the trial courts ruling.

We conclude that in this case the answer to this question is in the affirmative.

A. The Award of $22.7 Million for Past and Future Noneconomic Damages

We begin with Witkins observation that [t]he normal method of testing the verdict [for excessive damages] is to compare it with the evidence of injury. (6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts,  1741, p. 1276.) Here, the trial court believed that the evidence of the injuries sustained did not support the award of noneconomic damages. The trial court found that the award for Dr. Gousse and for Mrs. Gousse are so staggeringly disproportionate to the injuries suffered that the results shock the conscience.^[12] There is substantial evidence to support this finding.

While there is evidence that Dr. Gousse sustained injuries to his wrists, i.e., the radial sensory nerves, there is evidence that such injuries are transitory and resolve themselves within weeks or at most within a few months. A physical examination performed by Dr. Brody over a year after the incident found no evidence of radial sensory nerve injury, which corresponds with the fact that these injuries are transitory.

As far as the brachial plexus nerve injury is concerned, there is testimony that this injury was minimal to nonexistent. There is evidence that such injuries are the result of severe trauma accompanied by severe pain. The records of the emergency room at Memorial Hospital West do not reflect a report of trauma or pain to the shoulder. Three nerve conduction tests failed to disclose any injury to the nerves of the brachial plexus and the brachial plexus itself. There is also evidence that Dr. Gousse does not exhibit physical symptoms of a brachial plexus nerve injury, such as atrophy.

As far as RSD is concerned, there is testimony that Dr. Gousse does not now exhibit any of the symptoms of RSD, which are swelling, skin discoloration, mottling, sweating and stiff fingers.

This is not to say that there is no evidence that Dr. Gousse sustained any injuries. The trial court found that there was substantial evidence that Dr. Gousse has suffered pain after the incident. Given that he was handcuffed while lying in a prone position on the pavement, that he was brought to his feet by his arms and was handcuffed for at least 15 minutes, it is certainly reasonable that this rough and ill-advised procedure caused both injury and physical pain.

We note Dr. Zacklers description of Dr. Gousses mental and emotional state, and Dr. Gousses own testimony on this subject, which we have summarized in part 6.B. of our Facts at pages 13-14, ante. In ruling on the motion for a new trial, the trial court was required to weigh this, as well as other, evidence. We cannot say that there was no countervailing evidence to Dr. Zacklers testimony. That evidence is the fact that Dr. Gousses physical injuries were resolving; as far as the posttraumatic stress disorder is concerned, Dr. Zackler testified that this will continue to resolve.

Dr. Gousses ability to perform surgeries after the incident, especially complex surgeries, was an important component both of the extent of the injuries and the effect of the injuries on Dr. Gousse. This was a sharply contested issue, with evidence on both sides of the question. On the one hand, two surgical fellows under Dr. Gousses supervision, Drs. Kester and Leboeuf, testified that Dr. Gousses ability to perform as a surgeon appeared to be impaired. According to Dr. Kester, Dr. Gousse was not able to handle instruments very well with his left hand and at times he would step away from the table, grimace, and clench and unclench his left hand. Dr. Lebouef testified that Dr. Gousse had trouble holding instruments with his left hand, and he would sometimes turn away patients because he could not do the surgery. On the other side of the ledger, there is the testimony of a defense expert who examined Dr. Gousses surgical records both before and after the incident. Defense witness Dr. Tailor, a board certified urologist, testified that the number of surgical procedures performed by Dr. Gousse increased, with two exceptions, after the incident and that Dr. Gousse continued to perform complex procedures after the incident. Dr. Tailor also testified that on the hospitals website Dr. Gousse was held out as a surgeon available to perform unusually difficult reconstructive procedures, in other words, complex procedures. There is also evidence that Dr. Gousses surgical billings in the fiscal year following the incident were more than $370,000 that had been budgeted for him, for a total of approximately $1.3 million, and that he was second in billings among seven physicians.^[13]

In sum, there is available evidence that supports the trial courts conclusion that the jury should have reached different verdicts on the issue of damages. Certain evidence, or the lack thereof, of physical and emotional injuries supports awards substantially less than $16.5 million for future, and $6.2 million for past noneconomic damages. In other words, there is evidence that the nature and extent of the injuries, and the impact of those injuries on Dr. Gousses personal and professional life, support an award that is significantly less than the $22.7 million awarded to Dr. Gousse for noneconomic damages.

Dr. Gousse contends on appeal that the fact is that the jurys award of noneconomic damages is supported by overwhelming evidence that established a stark contrast between Dr. Gousses life before and after the incident; quite simply, his life was forever changed because of the incident. Dr. Gousse refers to evidence showing that he no longer engages in sports, no longer plays with his children, cannot do heavy work around the house, no longer goes dancing with his wife, that he is in constant pain and suffers from posttraumatic stress disorder. He also refers to other aspects of Dr. Zacklers testimony that we have set forth above and do not repeat here.

Dr. Gousses contention does not distinguish between the role of the trial court in ruling on a motion for new trial, and the role of this court in reviewing the order of the trial court.

The trial court may grant a motion for a new trial on the ground of excessive or inadequate damages if the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. (Code Civ. Proc.,  657.)^[14] While there is some question what is meant by the phrase the court or jury clearly should have reached a different verdict or decision, it appears that if the verdict is against the weight of the evidence or, to put it differently, if the weight of the evidence justifies a different verdict, the trial court should grant the motion for new trial. Witkin supports this view,^[15]which appears to be logical. If overwhelming evidence supports the verdict, it would appear also that the weight of the evidence supports the verdict and that, for this reason, the trial court should not grant the motion for a new trial.

In this case, the trial court concluded that the evidence justified a different verdict. In other words, the trial court weighed the evidence and found the evidence that favored the defendants on the issue of noneconomic damages to be more credible and probative than evidence that supported Dr. Gousses claims.

The reviewing court, however, does not review the trial courts decision by deciding whether the trial was correct in ruling that the weight of the evidence supports a different verdict. The reviewing court determines whether there is substantial evidence that supports the trial courts ruling. An order granting a new trial on the ground of excessive damages shall be reversed only if there is no substantial basis in the record for the reasons given for the order. (Wallis v. Farmers Group, Inc. (1990) 220 Cal.App.3d 718, 739; accord, Fortman v. Hemco, Inc., supra, 211 Cal.App.3d at p. 259.) This explains why the standard of review has been referred to as deferential, or what is meant by stating that the trial courts ruling is entitled to great weight. (E.g., Fortman v. Hemco, Inc., supra, at p. 259, citing Hilliard v. A. H. Robins Co., supra, 148 Cal.App.3d 374, 414, fn. 28.) Review is deferential because it is limited to determining whether there is substantial evidence, contradicted or not, that supports the trial courts ruling. Thus, the argument that the evidence is allegedly overwhelming is one to be addressed to the trial, and not the reviewing court.

For this reason, we limit our review to determining, as we have, that the trial courts ruling in noneconomic damages is supported by substantial evidence.^[16]

B. The Award of $8,347,378 for Future Economic Loss

The trial court also found that there was no credible evidence to support the award of $8,347,378 in future economic loss because there is no reason to believe that Dr. Gousse had actual plans to enter private practice that were dashed and forever destroyed by this incident. While there was substantial evidence that Dr. Gousse has suffered pain after the incident, he has remained a respected urologist with a successful and lucrative career in the highly specialized field of reconstruction and female urology [and] he received an offer to enter private practice with a respected colleague after the incident . . . .

There is evidence to support the trial courts conclusion that there is no reason to believe that Dr. Gousse had actual plans to enter private practice. That evidence is Dr. Gheilers testimony that when he had the first conversation with Dr. Gousse about joining Dr. Gheilers private practice in May 2002, Dr. Gousse just kind of smiled and dismissed it. Dr. Gheiler went on to state: [E]very time I brought the issue [private practice] up to him he kind of shrugged it off, but he [Dr. Gousse] really hasnt given me a reason why. The reason may have been that Dr. Gousse was committed to an academic career. There is some evidence that Dr. Gousse told the chairman of his department that he wanted to rise to the rank of full professor.^[17]

Dr. Gousse acknowledges Dr. Gheilers testimony, but testified that he declined to enter private practice because of his injuries. Dr. Gousse relies on evidence that he has decreased use of his left hand, and that two hands are necessary to perform certain important surgical procedures in his specialty. According to Dr. Gousse, it is his physical condition that prevents him from entering private practice.

We note once again that it is not our task to weigh the evidence but to determine if the trial courts ruling is supported by substantial evidence. Dr. Gheilers testimony that Dr. Gousse declined his invitation, as well as evidence that Dr. Gousse was interested in an academic career (see fn. 17 and accompanying text), is such substantial evidence. It is also true that the issue of Dr. Gousses credibility was for the trial court to decide. If the trial court did not believe Dr. Gousses testimony he intended to enter private practice, this would also affect this analysis.

Dr. Gousse advances a number of contentions on appeal challenging the trial courts ruling on the loss of future earnings, none of which is persuasive.

First, Dr. Gousse contends that the jury chose to believe his evidence, and that the testimony of a single witness may be sufficient. Whether the evidence is sufficient is of course not the issue, when it comes to the order granting a new trial on the issue of damages. The question is whether the trial courts order is supported by substantial evidence.

Next, Dr. Gousse contends that contrary to Citys claim, Dr. Gousses testimony in all respects is consistent with what the jury concluded: Dr. Gousse was well on his way to a lucrative career in private practice . . . but the incident forever dashed his plans. As with his previous contentions, this argument exhibits a misunderstanding of the issue before us. The question is not whether the jurys verdict is supported by the evidence. The question is whether the trial courts order granting a new trial is supported by substantial evidence.

C. The Award of $2 Million for Loss of Consortium

The trial court also found that Dr. Gousse has continued to enjoy the comforts, and to fulfill the duties, of a husband and father. Mrs. Gousse has had to shoulder additional familial burdens since the incident, and the couple enjoy conjugal relations less frequently than before the incident, but at all times she and Dr. Gousse have cherished their friendship, love and affection for one another. The jury awards for Dr. Gousse and for Mrs. Gousse are so staggeringly disproportionate to the injuries suffered that the results shock the conscience. The jury awarded Mrs. Gousse $2 million for loss of consortium.

Unfortunately, Mrs. Gousse believed for a long time that Dr. Gousse had been sexually assaulted while in custody ‑‑ a conviction that Dr. Zackler, plaintiffs psychiatrist, described as a fantasy that she refused to disavow, despite Dr. Gousses assurances. It was only when she heard Dr. Gousse deny this in front of his own attorney that she finally believed Dr. Gousse. It was her unfounded belief that Dr. Gousse had been contaminated that led to the decrease in conjugal relations. As far as Mrs. Gousses belief system is concerned, Dr. Zackler described her as an extremely obsessive, compulsive, perfectionistic, anxious human being. And once she gets an idea in her mind, she is very difficult to deal with.^[18]

Given such testimony from plaintiffs expert, we cannot say that the trial courts ruling on the $2 million award for loss of consortium was in error. There is evidence that the decrease in conjugal relations was in substantial part the result of Mrs. Gousses decision, based, as it was, on what Dr. Zackler called a fantasy. As in the instance of noneconomic damages, the evidence supports a substantially smaller award than $2 million.

As before, Dr. Gousse again contends that there was substantial evidence that supports the jurys verdict on loss of consortium. We have explained, and do not repeat, why this is not the issue.^[19]The question is whether there is substantial evidence to support the trial courts ruling. We have answered this in the affirmative when it comes to the ruling on the award for loss of consortium.

D. The Specification of Reasons for the Trial Courts Order

In his brief filed in response to Budgets appeal, Dr. Gousse contends that the specification of reasons for the trial courts order are inadequate. While we think that the specification of reasons for granting a new trial on damages is not in all respects a model, we conclude that it meets the basic requirements of such an order.

We begin with the fact that a leading case on this subject requires only that the trial courts order furnishes a concise but clear statement of the reasons (Mercer v. Perez (1968) 68 Cal.2d 104, 115) for granting a new trial.^[20]The statutory basis for this requirement is Code of Civil Procedure section 657.^[21]The question whether the specification of reasons is adequate is case-sensitive, and hard and fast rules are to be avoided.^[22]

As far as the award of noneconomic damages is concerned, the stated reason that the trial court concluded that the damages were excessive is that the awards for Dr. Gousse and for Mrs. Gousse are so staggeringly disproportionate to the injuries suffered that the results shock the conscience. As we have noted, a normal method of testing the verdict for excessive damages is to compare the award with evidence of the injury. (See text, p. 17, ante.) Thus, the trial courts reason goes right to the heart of the matter. The finding that the award is staggeringly disproportionate to the injuries suffered makes it clear that, in the trial courts opinion, there was no evidence of injuries sufficiently serious to warrant the noneconomic damages awarded by the jury.

Mercer v. Perez explains that there are two policy reasons behind the rule requiring a specification of reasons for granting a new trial. One is to encourage judicial deliberation and to discourage hasty and ill-considered decisions. The second is to make the right to appeal from the order more meaningful. (Mercer v. Perez, supra, 68 Cal.2d 104, 113.) The court explained the latter as follows: The scope of review is thus narrowed to more manageable proportions: the appellant need only address himself to those asserted deficiencies in the proof which are specified as reasons for the order, and the reviewing court need only determine if there is a substantial basis for finding such a deficiency in any of the respects specified. (Id. at p. 115.)

As is apparent from our review of the award of noneconomic damages, the trial courts finding that the award was staggeringly disproportionate to the injuries suffered provided an adequate basis for an appellate review of the order. This is not to say that the trial courts statement of reasons could not have been improved upon. Where, as here, there is a considerable body of evidence presented, it would have been more helpful if the trial court had identified salient aspects of the evidence itself. As an example, Dr. Gousses ability, or lack of ability, to perform complex surgeries was a salient aspect of his claim that his injuries were substantial. That his evidence on this issue was not credible, and/or that there was substantial credible evidence that contradicted this claim, could have been properly included in the courts order. It is not necessary for the court to cite page and line of the record or discuss the testimony of a particular witness, but instead it need only point out the particular deficiency of the prevailing partys case which convinces him the judgment should not stand. This will allow a reviewing court to determine if there is any basis for such a deficiency. (Christian v. Bolls (1970) 7 Cal.App.3d 408, 414.) While there was no need to discuss all of the evidence, it would have been preferable if the court had supported its reason for rejecting the award of noneconomic damages as disproportionate by pinpointing the evidence that showed the award to be disproportionate. We emphasize that the statute requires a statement of grounds and reasons, not a discussion of the evidence, and that our suggestion for improvement is made in light of the particular characteristics of this case.

In light of the foregoing, we do not agree with Dr. Gousses contention that the reason given by the trial court that we have discussed just recaps the standard and does not analyze the evidence. The courts finding that the award was grossly disproportionate to the injuries sustained does not recap the standard, but is rather a finding that reflects the courts views of the state of the evidence. And there is no requirement to analyze the evidence. The requirement is to state a reason, which the trial court did.

As far as future economic losses are concerned, the trial court rejected the award of $8,347,378 on the ground that there was no credible evidence that Dr. Gousse had actual plans to enter private practice that were dashed and forever destroyed by this incident. Since this award was predicated on the assumption that Dr. Gousse would enter private practice, the matter came down to the credibility of Dr. Gousses claim that he would have gone into private practice, but for the injuries that he sustained. On this issue, the trial court spoke very clearly, finding that the evidence that Dr. Gousse intended to enter private practice was not credible.

We do not agree with Dr. Gousse that this finding is defective because it is an improper invitation to scour the record for evidence that Dr. Gousse did intend to go into private practice before the incident but that intention was negated by his injuries. There is no need to scour the record because the trial courts finding was that Dr. Gousses claim that he intended to enter private practice was not credible. Credibility is a matter consigned to the trial court, which is best equipped to make this judgment. The trial courts difficult decision on this score rests on a number of facts and circumstances that constitute substantial evidence, which we need not repeat here.

In sum, while the trial courts order granting a new trial could have been improved upon in certain respects, it conforms to the basic requirements of the law.

We find that the trial court weighed the evidence as it was required to do, and reached conclusions that are supported by substantial evidence. Accordingly, we affirm the order granting a new trial on the issue of damages.

CITYS APPEAL

2. The Trial Courts Denial of Citys Motion for a Judgment Notwithstanding the Verdict

City contends that its motion for a judgment notwithstanding the verdict should have been granted because all four theories upon which the negligence verdict are predicated cannot stand. These theories, according to City are negligent investigation, forceful grabbing, use of the felony prone position and failure to double-lock the handcuffs to prevent them from getting too tight.

In response, Dr. Gousse advances three theories upon which he contends the case properly went to the jury. They are that unreasonable and excessive force was used when: (1) Dr. Gousse was subjected to the felony prone position, and then jerked up by his arms while his arms were handcuffed behind his back; and (2) the handcuffs were overtight and not loosened despite his requests. Dr.