FILED SUPERiOR COURT Of GUAM 202~ APR 23 PM 3: 38 CLERX Uf GO~RT IN THE SUPERIOR COURT OF GUAM BY:____~ - - - - WANITA ARCEO, CIVIL CASE NO. CV0397-20
Plaintiff,
vs. DECISION AND ORDER DENYING MOTION FOR NEW TRIAL AND CULGUAM, INC. doing business as COST- MOTION FOR STAY OF EXECUTION U-LESS EXPRESS and JOHN DOE INSURANCE COMPANY,
Defendants.
In this personal injury matter, a jury has found Defendant Culguam, Inc. dba Cost-U-Less
negligent and awarded Plaintiff Juanita Arceo $2,751,710.00 in damages. Cost-U-Less now
moves for a new trial and to stay execution of the Judgment, alleging that the damages award
was excessive, there was insufficient evidence to justify the verdict, and Cost-U-Less did not
receive a fair trial. Upon review of the parties' arguments, the Court finds that the jury's
decision and award were supported by substantial evidence and Cost-U-Less had a fair trial.
Therefore, the Motion for New Trial is DENIED, and as a result, the Motion for Stay of
Execution is moot.
I. FACTUAL AND PROCEDURAL BACKGROUND
Arceo sued Cost-U-Less following an incident occurring on May 4, 2020, in which she
slipped and fell inside the Cost-U-Less store in Chalan Pago. The case proceeded to a jury trial
from August 22 to 30, 2022. During the trial, the Court heard testimony from expert Doris
Shriver along with various other witnesses. The jury returned a verdict finding Cost-U-Less not
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negligent. However, upon review of a Motion for New Trial alleging juror misconduct, the
Court granted a new trial.
The second jury trial occurred from December 11 to 19, 2023. Prior to the start of trial,
the Court addressed using the recording of Shriver's prior trial testimony due to her
unavailability stemming from various medical conditions. The Court ordered that pursuant to
Guam Rule of Evidence 804, the use of her prior testimony was appropriate and allowed her
recorded testimony to be played during the second trial. See Order Granting Mot. Admit Doris
Shriver's Prior Testimony (Dec. 6, 2023).
Also during the second trial, counsel for Arceo engaged in an extensive voir dire of
Kenneth Newson, an expert for Cost-U-Less. Counsel introduced a decision issued by the
California Court of Appeals upholding a trial court decision finding that Newson improperly
attacked another expert's credibility and otherwise provided speculative and conclusory
testimony. See Magyar v. Kaiser Permanente Med. Ctr., No. B315353, 2023 WL 355173 (Cal.
Ct. App. Jan. 23, 2023).
Additionally at the second trial, the Court heard testimony from witnesses regarding
Arceo's injuries, her continued issues since the incident, and expert testimony regarding her
medical conditions. The relevant testimony for the purposes of the present motion includes the
following:
1. Andrew Arceo, Arceo' s brother, testified that she was not herself after the fall and has
been unable to use her exercise equipment, which she used almost every day before
the incident. Further, Andrew Arceo testified that Arceo had to make various life
adjustments to manage her pain. As examples, he provided that she uses multiple
pillows when driving and sleeps in a recliner.
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2. Amelia Indalecio, Arceo's sister, also addressed Arceo's use of exercise equipment,
noting that she would use it for an hour at a time prior to her fall.
3. Arceo herself testified regarding her pain, noting that initially she attempted physical
therapy to improve her condition but discontinued the treatment due to the pain.
Arceo further addressed that she values her health and wishes to seek treatment off-
island in order to return to her regular exercise routine and martial arts practice.
Finally, Arceo stated that she is scared to do things that will injure her back further.
4. Dr. Grant Walker was admitted as a spine specialist expert. He testified that as a
result of the incident, Arceo fractured her spine in three locations, two of which he
was able to independently corroborate through her x-rays. He further testified that
her description of a nerve shock-style pain at the time of the fall was consistent with
the injuries having occurred at that time. Dr. Walker provided that Arceo did not
have a prior back injury despite having osteoporosis, noting that osteoporosis did not
cause the injury but may have aggravated it, and osteoporosis almost never causes
pain. Dr. Walker also surmised that the source of Arceo's hunched appearance was
the result of her back fractures and provided that her hunched condition has increased
since his last meeting with her in the same manner he predicted. Dr. Walker
addressed Arceo's overall decreased function as a result of the incident noting that
she is no longer able to practice her martial arts, walk three miles, and do things that
involve bending forward. Finally, Dr. Walker concurred with Shriver's assessment of
Arceo, providing that it is more probable than not that Arceo will need home care
assistance during the last fifteen years of her life.
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5. Dr. Glenn Cunningham, who was admitted as an expert in orthopedic surgery
specializing in the knee, testified regarding the condition of Arceo's knee. Dr.
Cunningham concluded that Arceo's knee contained a patella fracture, ruptured ACL,
meniscus tear, and stretched-out MCL. The muscles in the back of her knee were
also stretched and torn. Dr. Cunningham noted that these injuries and the continued
downhill trajectory of Arceo's knee were likely the result of her slip and fall in Cost-
U-Less. Dr. Cunningham also addressed the impact of Arceo's osteoarthritis,
providing that it merely resulted in wear and tear, and there was no prior indication of
concerns regarding Arceo's knee. Finally, Dr. Cunningham stated that as a result of
the slip and fall, Arceo requires a total knee replacement.
6. Dr. Edward Younger, who was admitted as an expert in the field of orthopedic
surgery, testified that Arceo sustained a knee fracture and back injury from her fall at
Cost-U-Less; however, the back injury was likely a sprain or strain with a small
possibility that it was a fracture. Dr. Younger testified that Arceo likely sustained the
back fracture prior to her fall at Cost-U-Less as a result of her pre-existing conditions.
Dr. Younger further stated that based on the location of the fracture in her back it was
unlikely the cause of her hunched appearance. However, Dr. Younger also provided
that Arceo will never return to normal, struggles to maintain activities, and requires a
total knee replacement.
7. Finally, Shriver, who was admitted as a life care planner, vocational expert, and
occupational therapist, testified regarding the life care plan she created for Arceo.
Shriver testified that it is more likely than not that Arceo will require homecare for
ten hours a day for the last fifteen years of her life based on her significant injuries,
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their trajectory of declination, and her extensive experience in this area. Shriver also
testified to her discussion with Arceo regarding pain and functionality, providing that
she found Arceo to be credible as she described her inability to squat, bench, stoop, or
lift more than ten pounds. Shriver further testified that pain is the most significant
factor in an individual's life, impacting various aspects of their daily living.
Finally, the parties stipulated that Arceo's remaining life expectancy was 27.4 years (or
10,000 days) from the date of the incident. Jury Instructions at 37 (Dec. 21, 2023).
The second jury found Cost-U-Less negligent and that its negligence was a substantial
factor in causing harm to Arceo. The jury awarded Arceo $751,170 in economic damages for
caregiver assistance; $750,000 in non-economic damages for physical and emotional pain and
suffering; $125,000 in non-economic damages for loss of enjoyment oflife; $1,000,000 in non-
economic damages for physical impairment and disfigurement; and $125,000 in non-economic
damages for inconvenience. In total, the jury awarded damages of $2,751,170.
II. LAW AND DISCUSSION
A. Motion for New Trial
A new trial can be granted "in an action in which there has been a trial by jury for any
reasons for which new trials have heretofore been granted in actions at law in the courts of
Guam." Guam R. Civ. P. 59(a)(l). Additionally, the Guam Code provides specific
circumstances that allow for a new trial to be granted:
( 1) Irregularity in the proceedings of the court, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial; (2) Accident or surprise, which ordinary prudence could not have guarded against; (3) Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence have discovered and produced at trial; (4) Excessive damages appearing to have been given under the influence of passion or prejudice; (5) Insufficiency of the evidence to justify the finding or other
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decision, and that it is against the law; [and] (6) Error in law, occurring at the trial, and excepted to the party making the exception.
7 GCA § 21501.
Cost-U-Less specifically moves for a new trial alleging each category of damages
awarded by the jury was not justified by the evidence and law; the damages award was excessive
and provided under the influence of passion or prejudice; the Court's Order finding Doris Shriver
unavailable was prejudicial; and the evidence presented during the voir dire of Ken Newson was
both a surprise and prejudicial. Mot. New Trial at 4, 10, 12 (Jan. 12, 2024).
B. The damages award was supported by the evidence and law.
In reviewing a jury's award of damages, the Court must look to "whether the award is
supported by substantial evidence." B.M Co. v. Avery, 2002 Guam 19 ,r 13; see also Guam Top
Builders, Inc. v. Tanota Partners, 2011 Guam 30 ,r 8. "Substantial evidence is relevant evidence
that a reasonable person may accept as sufficient to support a conclusion, even if inconsistent
conclusions may be drawn from the evidence." B.M Co., 2002 Guam 19 ,r 13; Guam Top
Builders, Inc., 2011 Guam 30 ,r 8. "A jury has substantial discretion in determining the amount
of damages, but a new trial may be awarded if the damages are manifestly inadequate, if clear
proof of the damages has been ignored, or if the award bears no reasonable relation to the loss
suffered." B.M Co., 2002 Guam 19 ,r 13.
Cost-U-Less attacks every category of damages awarded: (1) Caregiver Assistance for
Ms. Arceo; (2) Physical and Emotional Pain and Suffering; (3) Loss of Enjoyment of Life; (4)
Physical Impairment and Disfigurement; and (5) Inconvenience. In doing so, Cost-U-Less
focuses on a provision in the jury instructions requiring reasonable certainty that Arceo will
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suffer the damages. 1
Cost-U-Less argues that the jury erred in awarding Arceo damages for future caregiver
assistance. Mot. New Trial at 4-6. In doing so, it focuses on Shriver's inability to confirm or
guarantee how much assistance Arceo will need and for how long as well as her failure to
corroborate Arceo's statements. Id. However, both Shriver and Dr. Walker testified that Arceo
will more likely than not need caregiver assistance for the last fifteen years of her life. Shriver
noted that her estimation of fifteen years was based on the Social Security Life Expectancy
Tables which are the industry standard. Moreover, Shriver noted that her estimate regarding the
number of hours of caregiver assistance that Arceo will require is based on her extensive
experience in the area of life care planning along with Arceo's diagnosis and condition and
projected deterioration. Finally, Shriver noted that as it relates to Arceo's function, she did not
find it necessary to corroborate the information shared by Arceo as she found her to be credible.
Based on this information, the Court finds there to have been substantial evidence from which
the jury could determine with reasonable certainty that Arceo will suffer the awarded $751,170
in damages for caregiver assistance.
The Court addresses damages for physical and emotional pain and suffering together with
damages for loss of enjoyment of life as the evidence supporting these awards has significant
overlap. For physical pain and suffering, Cost-U-Less argues that testimony on this topic was
limited to past events such as the issues Arceo had in caring for her parents after the injury and
pain she felt at the time of the incident.· Id. at 6-7. For loss of enjoyment of life, Cost-U-Less
1 The Items of Economic Damage instruction provides "[t]o recover damages for future care, Ms. Arceo must prove the reasonable cost of reasonably necessary home care services that she is reasonably certain to need in the future." Jury Instructions at 32. Meanwhile, the Items of Noneconomic Damages instruction states "[t]o recover for future noneconomic damages, Ms. Arceo must prove she is reasonably certain to suffer that harm." Id. at 33.
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argues that Arceo is still able to spend time with her grandchildren; there was no testimony that
she was sad or depressed; and she is not wheelchair or homebound. Id. at 7. However, Arceo's
brother testified that she was not herself after the fall. Arceo' s brother, sister, and Arceo herself
all testified regarding her struggles to continue with activities she values and enjoyed prior to the
incident, such as using exercise machines and practicing martial arts. Arceo also discussed her
fear of further injuring her back as a limiting factor in her life. Moreover, Dr. Walker and
Shriver testified regarding her limited mobility. Finally, Arceo briefly testified regarding pain,-
and Shriver discussed the impact of pain, such as that in Arceo's case, on one's life and how it
impacts all aspects of living. As a result, substantial evidence was presented to allow the jury to
award $750,000 2 in damages for physical and emotional pain and suffering and $125,000 3 for
loss of enjoyment of life with reasonable certainty based on the difficulties and limitations Arceo
has faced since her fall at Cost-U-Less.
For physical impairment and disfigurement, Cost-U-Less argues that the hunch in
Arceo's back is the result of her preexisting osteoarthritis and provides that Arceo is still
functional and mobile. Id. at 7-8. Although Dr. Younger testified that her hunched back was not
the result of the injuries from her fall, Dr. Walker testified that her preexisting conditions did not
cause her hunched appearance, and the hunch resulted from the fractures to her spine from her
fall at Cost-U-Less. Moreover, Dr. Walker testified regarding the continued progression of her
hunch and, along with Shriver, addressed the limitations in her mobility. As Dr. Walker and
Shriver's testimony provide substantial evidence to support damages for Arceo's physical
2 Arceo asked for $1.5 million in physical and emotional pain and suffering; thus, the jury awarded her half of what she sought. 3 Arceo asked for $1.5 million in loss of enjoyment damages; thus, the jury awarded her about an eighth of her request.
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impairment and disfigurement in the form of her limited mobility and hunched back from the
various injuries she sustained during her fall, the Court finds the jury's $1 million award is
supported by a reasonable certainty. 4
Finally, Cost-U-Less argues that the evidence did not support a damages award for
inconvenience because Arceo did not testify regarding inconvenience, and she is still able to
drive normally. Id. at 8-9. However, Arceo did testify that she requires several pillows in order
to drive now. Moreover, Arceo's brother testified that she has had to make life adjustments to
account for the pain, and Arceo testified that she is scared to do things for fear of further injury.
Finally, both Dr. Walker and Shriver testified regarding her limited mobility, and Shriver
testified that she could not lift more than 10 pounds. Therefore, there was substantial evidence to
support the jury's award of $125,000 5 in damages with reasonable certainty for inconvenience
due to the multitude of ways that Arceo's injuries impact her life.
C. The Jury award was not the result of passion or prejudice.
Cost-U-Less argues that the damages awarded were excessive and given under the
influence of passion and prejudice. Id. at 9-10. "When a party seeks a new trial based on a
claim that damages are excessive and a result of passion, a reviewing court will not determine
the amount it would have awarded as compensation for the injured party; rather, [it] must
determine whether the jury's award is supported by the record when viewed in the light most
favorable to the non-moving party." B.M Co., 2001 Guam 27 ~ 55. Based on the analysis
provided above, the Court finds that each of the damages awarded is supported by the evidence,
4 The jury awarded Arceo double the amount she requested for this item. Based on her life expectancy of l 0,000 days, however, the award equates to roughly $100 per day for her disfigurement. The Court finds this amount to be reasonable. 5 The jury's award for inconvenience was roughly a fifth of what she requested. CV0397-20 DECISION AND ORDER DENYING MOTION FOR NEW TRIAL Page 10 AND MOTION FOR STAY OF EXECUTION
and therefore, the damages award does not appear to have been given as a result of passion or
prejudice.
D. The Court's finding that Doris Shriver was unavailable to testify was supported by reliable evidence and was not prejudicial.
Cost-U-Less argues that the Court's finding of Shriver's unavailability due to her medical
condition was based on insufficient and unreliable evidence. Mot. New Trial at 10-11.
However, Cost-U-Less's arguments on this issue do not differ from the arguments they raised'
during the briefing prior to trial. In evaluating the evidence before trial, the.Court found the
representations regarding Shriver's medical condition credible and the law surrounding her
testimony clear. Therefore, the Court reiterates and main~ains its December 6, 2023 Order
Granting Motion to Admit Doris Shriver's Prior Testimony Under GRE 804(A)(4) Due to
Witness Unavailability.
The Court now turns to Cost-U-Less's argument that tqey were prejudiced by their
inability to further voir dire Shriver. The unavailability exception-which allowed Shriver's
recorded testimony-requires Cost-U-Less to have had an opportunity to develop testimony
through cross-examination. Cost-U-Less did this at the prior trial and those portions were heard
by the second jury. Moreover, Cost-U-Less failed to provide any law that would counter this or
entitle them to further voir dire on an unavailable witness. Furthermore, Cost-U-Less only
generally argues their alleged prejudice by being unable to further voir dire Shriver, providing
that her methods are "general, conclusory[,] and based on minimal interactions with Ms. Arceo."
Id at 12. However, Cost-U-Less highlighted Shriver's lack of interactions with Arceo during
the first trial; its arguments that her methodology is general and conclusory fail to provide a
specific basis resulting in prejudice as this argument is vague and questions on these issues could
have been asked during the first trial.
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E. The introduction of new evidence against Ken Newson did not constitute a surprise or prejudice warranting a new trial.
Cost-U-Less cites an 1870s California case to support that "[t]he introduction of new
evidence, of which the opposite party had no notice or knowledge, at the close of evidence on the
trial, is sufficient surprise to authorize the granting of a new trial." Id. at 12-13. However,
section 21501 addresses surprise, allowing for a new trial where there is "[a]ccident or surprise,
which ordinary prudence could not have guarded against." Moreover, the facts of the case cited
by Cost-U-Less indicate that ordinary prudence could not have guarded against the surprise that
occurred in that case. See Delmas v. Martin, 39 Cal. 555 (1870). Therefore, the Court looks to
the standard provided by the Guam Code, requiring that "ordinary prudence could not have
guarded against" the surprise. While the information presented in Court may have been a
surprise to Cost-U-Less, the Court looks to whether ordinary prudence could have guarded
against the surprise. The information presented here was a California Court of Appeals case
discussing Newson's testimony, something that ordinary prudence certainly would have guarded
against by simply searching their expert in a legal search engine or asking him about prior
adverse determinations regarding his testimony. Therefore, while the information may have
been a surprise to Cost-U-Less, ordinary prudence would easily have guarded against such a
surprise.
F. The Motion for a Stay of Execution is moot.
Cost-U-Less also moves the Court for a stay of execution of the judgment under Guam
Rule of Civil Procedure 62(b). Mot. Stay Execution (Jan. 12, 2024). GRCP 62(b) allows for a
stay of execution "pending the disposition of a motion for a new trial." As this Order disposes of
Cost-U-Less's Motion for New Trial, the motion for a stay is now moot.
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III. CONCLUSION AND ORDER
Based on the substantial evidence along with the lack of prejudice and surprise, the Court
DENIES the Motion for a New Trial; accordingly, the Motion for a Stay of Execution is moot.
SO ORDERED this 23 April 2024.
HON. ELM. IRIARTE Judge, Superior Court of Guam
Appearing Attorneys: Matthew J. Holley, Esq., and Victorino D.L.G. Torres, Esq., Pacific Legal Team, P.C., for Plaintiff Juanita Arceo Geri E. Diaz, Esq., Camacho Calvo Law Group, LLC, for Defendant CULGuam, Inc., ~oing business as Cost-U-Less Express
OR~Gl~JJ\L