## Facts

- Fernando Duk, an alcoholic and insulin-dependent diabetic, drank heavily and behaved disruptively at the MGM Grand Hotel in Las Vegas.
- MGM security asked him to leave; after he refused, a security manager made a citizen’s arrest and detained him while awaiting police.
- Duk’s wife informed MGM security that Duk was diabetic.
- While detained, Duk complained of pain; evidence supported that he complained of chest pain, but MGM personnel allegedly conveyed only lung-related complaints to paramedics.
- Paramedics evaluated Duk, concluded he was intoxicated with no other medical problems, and Duk was transported to jail.
- After release the next day, Duk went to a hospital, was diagnosed with a heart attack, and later required a heart transplant.
- Duk sued MGM for negligence based on security personnel’s alleged failure to respond appropriately to his medical condition.
- Nevada’s modified comparative negligence rule applied: a plaintiff more than 50% at fault is barred from recovery; a plaintiff 50% or less at fault may recover reduced damages.

## Issues

1. Whether the district court had discretion under Federal Rule of Civil Procedure 49(a) to resubmit an internally inconsistent special verdict to the same jury for clarification.
2. Whether the district court abused its discretion by granting a new trial after the jury returned a clarified special verdict that eliminated the inconsistency.

## Decision

- The Ninth Circuit affirmed the district court’s resubmission of the first special verdict to the jury for clarification.
- The Ninth Circuit reversed the order granting a new trial and reversed the judgment entered on the defense verdict from the second trial.
- The case was remanded with instructions to enter judgment for Duk consistent with the first jury’s clarified second verdict: 49% comparative fault to Duk and $3.3 million in damages, reduced by his percentage of fault.

## Legal Principles

- Under Federal Rule of Civil Procedure 49(a), a district court may resubmit an inconsistent special verdict to the jury for further deliberation and clarification when the rule does not expressly forbid the practice.
- Courts must attempt to reconcile jury answers and sustain a verdict if there is a reasonable view of the case that makes the jury’s answers consistent.
- A district court abuses its discretion by ordering a new trial when a clarified verdict returned after permissible resubmission is internally consistent and can be given effect.
- Where state comparative-fault law imposes a recovery bar above a specified fault threshold, a special verdict allocating fault must be consistent with the legal consequences explained in the jury instructions.

## Conclusion

The Ninth Circuit held that the district court properly used Rule 49(a) to send an inconsistent special verdict back to the jury, but it erred by discarding the jury’s clarified verdict and ordering a new trial; judgment was required on the clarified verdict allocating 49% fault to the plaintiff and awarding damages subject to comparative-fault reduction.


Duk v. MGM Grand Hotel, Inc., 320 F.3d 1052 (9th Cir. 2003)