No. 26355 -- Kent A. Gerver and Billie Jo Gerver v. Aurelio Benavides, M.D.
Maynard, Justice, dissenting:
I dissent because I do not believe the trial court abused its discretion in
setting aside the jury's verdict and awarding a new trial based upon fraud.
God forbid that a trial actually be a search for the truth! Even though that
is precisely what a trial should be, that is not how we currently think about trials. If you
want an eye-opening test of public perception about the justice system, go out on the street
and simply ask the first ten people you encounter if they think a trial today is a search for
the truth and see what answers you get. In this case, thanks to the use of a video camera,
however, the trial court below discovered the truth. Unfortunately, a majority of this
Court is not happy with the discovery. Consequently, the majority manipulated some
arcane points of law to reinstate a verdict in excess of two million dollars to a plaintiff who
most likely is guilty of perpetrating a fraud on the trial court.
The verdict below was set aside and a new trial awarded after the trial court
viewed the demeanor of the appellant, Kent Gerver, on surveillance videotape. The trial
court found that the appellant's demeanor on videotape contrasted markedly with the
appellant's demeanor at trial. According to the trial court, during trial, Kent Gerver
moved about the courtroom gingerly, projecting very obvious discomfort and pain. When
he testified he unsuccessfully fought back tears as he described the devastation this pain
had wreaked upon his life, his family, his relationship with his wife. Specifically, the
appellant testified that, as a result of his injury, his life was reduced to feeding his dog,
taking short walks, reading the newspaper and watching television. The appellant's wife
testified that she and the appellant no longer socialize because the appellant wants to be
alone most of the time. The surveillance videotape, in stark contrast to his testimony,
shows the appellant weed-whacking, lawn-mowing, attending sporting events, carrying
objects, climbing bleachers and allowing small children to sit on his lap. Accordingly, the
trial court concluded that [t]he person depicted in the video and the person the Plaintiff
represented himself to be, through his words and actions before the jury, are two different
persons. The Court's rejection of this videotape evidence is especially troubling when
one considers that the appellant's entire case was almost wholly predicated on his
demeanor and subjective complaints of pain.
Further, while this Court could view the surveillance videotape contained in
the record, it did not see the appellant's demeanor at trial. The trial court, on the other
hand, watched the appellant's behavior throughout the trial and compared it with the
contents of the videotape. Obviously, the trial court is in the better position to determine
whether the surveillance videotape amounted to proof of fraud. Accordingly, there is
absolutely no sound legal reason for this Court to second-guess the determination of the
trial court under the facts of this case.
This is a case in which the appellant was awarded $2,168,431.11, not
including prejudgment interest, for subjective evidence of pain later shown to be
fraudulent. So not only will we allow the appellant to present a fraudulent picture to a
jury, we will give him a two million dollar reward for so doing.
Based upon the evidence of fraud and other error, the trial court quite properly vacated the verdict and awarded a new trial. There is no reason to reverse this judgment. Accordingly, I dissent.