Metros v. Chowdhary CA4/1
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Filed 9/22/14 Metros v. Chowdhary CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
FRED METROS, D065269
Plaintiff and Appellant,
v. (Super. Ct. No. CIVDS-901250)
HARDIP SINGH CHOWDHARY, SR.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Bernardino County, David
A. Williams, Judge. Affirmed.
Alder Law, Scott Spell; Carlson & Johnson, Steven F. Carlson for Plaintiff and
Appellant.
Gilbert, Kelly, Crowley & Jennett, Peter J. Godfrey, Andrew C. Hubert for
Plaintiff and appellant Fred Metros appeals from a judgment entered on a jury's
special verdict following a trial on his complaint for personal injuries arising from a
traffic collision involving Metros and Hardip Singh Chowdhary, Sr. Chowdhary admitted liability, and following a trial on damages, the jury found Chowdhary's
negligence was a substantial factor in causing Metros harm but that Metros had suffered
no damages on his claims for future medical expenses and past and future pain and
suffering. Metros contends: (1) the jury's award of zero damages was inadequate as a
matter of law; (2) the trial court erred by denying his motion for new trial based on juror
misconduct; and (3) the trial court improperly excluded testimony of Metros's neurologist
expert on causation of his orthopedic injuries. Metros maintains the errors resulted in a
miscarriage of justice.
We conclude the facts of this case, which were highly contested, do not lead to an
inescapable conclusion that Metros was entitled to an award of future medical expenses
or noneconomic damages for past and future pain and suffering, and thus the jury's award
was not inadequate as a matter of law. We further conclude the trial court did not err by
denying Metros's new trial motion or excluding portions of his expert's testimony on
causation. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We view the evidence in the light most favorable to the judgment, accepting as
true all evidence tending to support it. (See Bertero v. National General Corp. (1974) 13
Cal.3d 43, 61; Quigley v. McClellan (2013) 214 Cal.App.4th 1276, 1278, fn. 1.)
Metros and Chowdhary were involved in an automobile collision on November 8,
2007, after Chowdhary attempted to make a left turn in front of Metros's vehicle. At the
moment of impact, Metros was travelling 28 to 30 miles per hour, and Chowdhary was
moving between 11 and 14 miles per hour. Chowdhary's airbag deployed but Metros's
2 did not. One witness to the accident ran up to Metros's vehicle to find Metros with his
eyes closed and his head slumped to his shoulder. Another witness parked her car and
returned to Metros's car four or five minutes after the collision; she found Metros in his
car looking pale and asked him if he was okay. Metros responded to the effect of, "I
think I'm okay, but my shoulder and my arm hurt." He indicated his left shoulder. That
witness testified Metros looked confused and disoriented, "kind of looking like the
moment was not good for him." An ambulance arrived five to ten minutes later and
attendants helped Metros out of the car. While in the ambulance, Metros heard a police
officer and an emergency medical worker at the scene debate over whether his driver's
license was expired; he was able to recount their conversation in detail in his later
deposition.
Emergency room records from immediately after the accident indicated Metros
complained of right head pain, right hip pain and left shoulder pain. The notes reflected
he had an artificial right hip and was already taking an anti-inflammatory medication. A
neurologic examination showed Metros was alert and oriented times four, without head
trauma. There were no notes indicating Metros had struck his head or face, or that there
was damage to his jaw or temporomandibular joint. The hospital records indicated
"negative" for any loss of consciousness. Hospital personnel wrote that Metros had
"excellent recollection of all the details of the accident." X-rays of Metros's left shoulder
after the accident were normal, and an examination of Metros's scalp was also within
normal limits, without any sign of external injury.
3 Metros sued Chowdhary for personal injuries. Chowdhary admitted liability and
the matter proceeded to trial solely on the issue of damages.
The trial evidence was undisputed that Metros had significant preexisting medical
conditions and multiple surgeries before the accident. In 1982, Metros was hit while
riding his motorcycle and run over, causing nerve damage to his right leg and a
permanent condition of "drop foot," i.e., he could not elevate his right foot. Metros had
surgery to repair his foot, but still had a limp. He sustained a pelvic and hip fracture in
that accident which resulted in the need for multiple hip replacement surgeries and
revisions. In 1986, Metros refractured his hip when the wheel of his truck came off,
causing him to crash. Metros was involved in lawsuits relating to the 1982 and 1986
accidents. In January 2002, Metros was rear-ended in his vehicle by a large utility truck
and sustained an injury to his neck and shoulders, producing neck pain radiating to both
shoulders and neck spasms. As a consequence, Metros complained of weakness in his
right hand and headaches. X-rays at that time showed degenerative changes in his spine
(at the fourth and fifth, and fifth and sixth vertebrae), and he was diagnosed with cervical
strain and spasm. Metros complained of chronic right shoulder pain in March 2006.
Sometime in 2007, Metros had a saw cut accident where he cut tendons and nerves in his
left hand. In September 2007, Metros complained to his physician about his left knee and
X-rays showed early signs of arthritis. Metros had weakness in his right shoulder and
arm from a prior accident unrelated to the November 2007 accident. He had preexisting
degenerative joint disease in his spine.
4 Metros did not testify at trial. He sought to prove he had suffered a traumatic
brain injury resulting from the forces of the accident, as well as neck and shoulder
injuries requiring surgery. Metros presented testimony from witnesses to the accident
and various experts, including accident reconstruction and biomechanical engineering
expert Jai Singh, orthopedic surgeon John Leslie Beck, clinical psychologist Arnold
Purisch, Metros's treating chiropractor Robert Moulas, and neurologist Hyman Gross.
Metros's wife also testified concerning Metros's physical complaints and the changes in
his condition and personality after the accident.
Accident reconstruction expert Singh testified about mechanisms that would cause
Metros injuries to his head, shoulder and neck based on the forces to his vehicle. He
stated these mechanisms allowed for the left side of Metros's head to hit his car's padded
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Filed 9/22/14 Metros v. Chowdhary CA4/1 NOT TO BE PUBLISHED IN 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
FRED METROS, D065269
Plaintiff and Appellant,
v. (Super. Ct. No. CIVDS-901250)
HARDIP SINGH CHOWDHARY, SR.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Bernardino County, David
A. Williams, Judge. Affirmed.
Alder Law, Scott Spell; Carlson & Johnson, Steven F. Carlson for Plaintiff and
Appellant.
Gilbert, Kelly, Crowley & Jennett, Peter J. Godfrey, Andrew C. Hubert for
Plaintiff and appellant Fred Metros appeals from a judgment entered on a jury's
special verdict following a trial on his complaint for personal injuries arising from a
traffic collision involving Metros and Hardip Singh Chowdhary, Sr. Chowdhary admitted liability, and following a trial on damages, the jury found Chowdhary's
negligence was a substantial factor in causing Metros harm but that Metros had suffered
no damages on his claims for future medical expenses and past and future pain and
suffering. Metros contends: (1) the jury's award of zero damages was inadequate as a
matter of law; (2) the trial court erred by denying his motion for new trial based on juror
misconduct; and (3) the trial court improperly excluded testimony of Metros's neurologist
expert on causation of his orthopedic injuries. Metros maintains the errors resulted in a
miscarriage of justice.
We conclude the facts of this case, which were highly contested, do not lead to an
inescapable conclusion that Metros was entitled to an award of future medical expenses
or noneconomic damages for past and future pain and suffering, and thus the jury's award
was not inadequate as a matter of law. We further conclude the trial court did not err by
denying Metros's new trial motion or excluding portions of his expert's testimony on
causation. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We view the evidence in the light most favorable to the judgment, accepting as
true all evidence tending to support it. (See Bertero v. National General Corp. (1974) 13
Cal.3d 43, 61; Quigley v. McClellan (2013) 214 Cal.App.4th 1276, 1278, fn. 1.)
Metros and Chowdhary were involved in an automobile collision on November 8,
2007, after Chowdhary attempted to make a left turn in front of Metros's vehicle. At the
moment of impact, Metros was travelling 28 to 30 miles per hour, and Chowdhary was
moving between 11 and 14 miles per hour. Chowdhary's airbag deployed but Metros's
2 did not. One witness to the accident ran up to Metros's vehicle to find Metros with his
eyes closed and his head slumped to his shoulder. Another witness parked her car and
returned to Metros's car four or five minutes after the collision; she found Metros in his
car looking pale and asked him if he was okay. Metros responded to the effect of, "I
think I'm okay, but my shoulder and my arm hurt." He indicated his left shoulder. That
witness testified Metros looked confused and disoriented, "kind of looking like the
moment was not good for him." An ambulance arrived five to ten minutes later and
attendants helped Metros out of the car. While in the ambulance, Metros heard a police
officer and an emergency medical worker at the scene debate over whether his driver's
license was expired; he was able to recount their conversation in detail in his later
deposition.
Emergency room records from immediately after the accident indicated Metros
complained of right head pain, right hip pain and left shoulder pain. The notes reflected
he had an artificial right hip and was already taking an anti-inflammatory medication. A
neurologic examination showed Metros was alert and oriented times four, without head
trauma. There were no notes indicating Metros had struck his head or face, or that there
was damage to his jaw or temporomandibular joint. The hospital records indicated
"negative" for any loss of consciousness. Hospital personnel wrote that Metros had
"excellent recollection of all the details of the accident." X-rays of Metros's left shoulder
after the accident were normal, and an examination of Metros's scalp was also within
normal limits, without any sign of external injury.
3 Metros sued Chowdhary for personal injuries. Chowdhary admitted liability and
the matter proceeded to trial solely on the issue of damages.
The trial evidence was undisputed that Metros had significant preexisting medical
conditions and multiple surgeries before the accident. In 1982, Metros was hit while
riding his motorcycle and run over, causing nerve damage to his right leg and a
permanent condition of "drop foot," i.e., he could not elevate his right foot. Metros had
surgery to repair his foot, but still had a limp. He sustained a pelvic and hip fracture in
that accident which resulted in the need for multiple hip replacement surgeries and
revisions. In 1986, Metros refractured his hip when the wheel of his truck came off,
causing him to crash. Metros was involved in lawsuits relating to the 1982 and 1986
accidents. In January 2002, Metros was rear-ended in his vehicle by a large utility truck
and sustained an injury to his neck and shoulders, producing neck pain radiating to both
shoulders and neck spasms. As a consequence, Metros complained of weakness in his
right hand and headaches. X-rays at that time showed degenerative changes in his spine
(at the fourth and fifth, and fifth and sixth vertebrae), and he was diagnosed with cervical
strain and spasm. Metros complained of chronic right shoulder pain in March 2006.
Sometime in 2007, Metros had a saw cut accident where he cut tendons and nerves in his
left hand. In September 2007, Metros complained to his physician about his left knee and
X-rays showed early signs of arthritis. Metros had weakness in his right shoulder and
arm from a prior accident unrelated to the November 2007 accident. He had preexisting
degenerative joint disease in his spine.
4 Metros did not testify at trial. He sought to prove he had suffered a traumatic
brain injury resulting from the forces of the accident, as well as neck and shoulder
injuries requiring surgery. Metros presented testimony from witnesses to the accident
and various experts, including accident reconstruction and biomechanical engineering
expert Jai Singh, orthopedic surgeon John Leslie Beck, clinical psychologist Arnold
Purisch, Metros's treating chiropractor Robert Moulas, and neurologist Hyman Gross.
Metros's wife also testified concerning Metros's physical complaints and the changes in
his condition and personality after the accident.
Accident reconstruction expert Singh testified about mechanisms that would cause
Metros injuries to his head, shoulder and neck based on the forces to his vehicle. He
stated these mechanisms allowed for the left side of Metros's head to hit his car's padded
side header panel with forces in the range of 42 and 59 g's, which was sufficient for head
injury. Singh also opined there was a jamming mechanism in Metros's right shoulder
socket, as if breaking a fall, and significant forward bending and neck compression from
head contact, a mechanism for "axonal sheer injury" to Metros's brain and injury to
Metros's neck at the sixth and seventh vertebrae. Singh testified that a left-sided head
contact in the collision was consistent with Metros's right-sided head complaints at the
hospital. Though Metros's postaccident X-rays and examinations of his shoulder and
scalp were normal, Singh did not see that as inconsistent with the forces he described
because it was a function of the padded surface Metros hit. Singh admitted that Metros's
head and chest did not hit the steering wheel, and he was restrained by his seat belt.
Singh agreed that a closed-head injury required an impact to the head; he admitted that
5 eight days after the accident Metros's treating physician in Georgia saw Metros and found
no external signs of damage to Metros's head.
Orthopedic surgeon Beck opined Metros had incurred severe jaw injuries and hurt
his neck between the sixth and seventh vertebrae, both shoulders, and left hand in the
accident. Though he conceded the medical records did not indicate damage to Metros's
jaw or that Metros had struck his head or face in the accident, Dr. Beck testified Metros
had dislocated his jaw, causing severe headaches, and had temporomandibular joint
syndrome. Dr. Beck also testified Metros suffered from chronic pain. Dr. Beck agreed
the nature of Metros's cervical spine injury was "whiplash," that is, sprain and strain of
the muscles and tendons in the neck area, and some decreased range of motion. He
wanted to refer Metros to a jaw specialist for future treatment, and felt Metros required
future neck and shoulder surgery costing between $180,000 and $265,000.
On cross-examination, Dr. Beck admitted that because he did not have all of
Metros's medical records, he could not say to a reasonable degree of medical certainty
that Metros's neck and shoulder injuries were received as a result of the November 2007
accident or preexisted the accident. Dr. Beck acknowledged Metros had normal range of
motion in both shoulders. Though Dr. Beck related that an MRI of Metros's cervical
spine taken several weeks after the accident showed a herniation or protrusion that was
"small in size," he testified the bulge was insignificant "from a surgical standpoint" and it
was not pressing on a nerve or compromising other structures.
Dr. Beck also conceded that the postaccident medical records did not show that
Metros had lost consciousness or that he was going in and out of consciousness. Though
6 Metros had told him his seatbelt had broken and his head had slammed against the
window of his car during the accident, Dr. Beck conceded his own report said nothing
about Metros's head striking the window.
Chiropractor Moulas testified that a few days after the accident Metros
complained of blurry vision, headaches, and pain in his neck, back, right shoulder, left
chest, left arm and hand, right Achilles heel, right thigh, and middle finger. He testified
Metros was slurring his speech. Dr. Moulas performed electric stimulation to Metros's
neck and upper back on four occasions in November 2007. When Dr. Moulas took
Metros's medical history, Metros did not report his chronic right shoulder problems, nor
did he tell Dr. Moulas he had had surgery on his right Achilles tendon area to correct his
drop foot. Metros did not report hitting his head on anything in the crash. Dr. Moulas
admitted that Metros passed all of his cranial nerve and neurological tests, and that his
head looked normal, without bruising, swelling, bleeding, abrasions or a knot. Dr.
Moulas did not take X-rays or refer Metros for a neck MRI. He admitted Metros had
suffered a cervical whiplash injury, as well as pains and strains of the muscles in his mid
and low back.
Neurology specialist Gross testified that Metros suffered a complicated moderate
traumatic brain injury, chronic cervical spine strain and pain, and soft tissue injury from a
major impact. He believed Metros's complaints, his MRI's, and observations by Metros's
work manager were consistent with a closed head traumatic brain injury called a diffuse
axonal injury, or scarring of the nerve. He also testified Metros suffered an acute tear in
his rotator cuff and two herniated disks after the accident. He testified Metros had
7 posttraumatic chronic bilateral shoulder pain, failed epidural steroid injections, and a
failed right side arthroscopy due to the accident. Dr. Gross addressed Metros's future
care: in his opinion Metros would need multiple medications for his pain, mood, and
cognition issues; Botox injections for his migraine headaches; injections for pain;
complicated cervical surgery; imaging studies; cognitive rehabilitation; marital
counseling and neuropsychiatric visits; physical and occupational therapy; and
appointments with an otologist for his hearing. He conceded, however, that Metros's
treating physician in Georgia had stated he was not a candidate for neck surgery. He also
admitted he had no way of knowing the age of Metros's nerve scarring and whether or not
it preexisted the accident.
Clinical psychologist Purisch testified based on his review of medical information,
and evaluation and testing of Metros, that Metros had suffered a mild to moderate right-
sided brain injury and frontal lobe injury. However, Dr. Purisch admitted that nothing in
the emergency room records indicated Metros had symptoms correlating with a right-
sided brain injury. He conceded none of the postaccident hospital records described
Metros as confused, agitated, repeating questions or disoriented, nor were there such
descriptions within the hospital records from four days after the accident. Metros's CT
scan taken four days after the accident was normal, and Dr. Purisch concluded he did not
suffer any brain stem injury. Dr. Purisch admitted he was not provided with any of the
8 medical records from Metros's three prior motor vehicle accidents, nor did he ask for
them to assess Metros.1
Defense counsel elicited that Dr. Purisch had neglected to list in his expert report a
personality inventory questionnaire for Metros that had produced a significantly elevated
"fake bad" scale. The results of that test indicated that Metros had "reported a much
larger than average number of somatic symptoms rarely described by individuals with
genuine medical conditions"; that his responses were "associated with noncredible
reporting of somatic and/or cognitive symptoms" and they could reflect substantial
medical problems or exaggeration. The doctor explained such results were consistent
with someone with significant medical problems, and that Metros's personality put his
psychological problems, which Metros underreported, into physical complaints. Dr.
Purisch agreed that another test, Metros's personality assessment inventory, was
inconsistent with his diagnosis of "cognitive disorder not otherwise specified."
Metros's experts Singh and Dr. Purisch observed that Metros had reported false
information concerning the accident. Singh stated that Metros had reported to his
primary care physician in Georgia that the collision caused his car to be pushed 100 yards
down the street, which Singh would not expect. Metros also reported he was knocked
1 Dr. Purisch also acknowledged that Metros had many stressors in his past, including the fact he was discharged from the Army shortly after having a psychiatric evaluation stemming from stress concerning his sick parents; his disability resulting from his motorcycle accident; a sister who had personality changes following a motor vehicle accident and head injury; a daughter who attempted suicide when she was a teenager, struggles finding work between 1985 and 2002; the fact he believed one of his former wives had plotted to kill him; and his belief his ex-wife had turned his daughter against him. Dr. Purisch agreed these played a role in Metros's psychological makeup. 9 through his seat restraints, which Singh said did not occur frontally, only somewhat
laterally. Dr. Purisch admitted that Metros had previously reported untrue facts about the
accident: that he had swelling of the brain, he was in a coma, that he had to be extracted
from his car with the jaws of life, and that his car ended up 100 yards down the street. He
posited that Metros was confused at the time, even though Dr. Purisch later admitted the
ambulance attendants gave Metros a perfect Glasgow coma score (a measure of
responsiveness) of 15. Dr. Purisch, however, felt in general that Metros downplayed his
emotional problems and pain.
Defense expert Ted David Evans, a clinical psychologist, examined Metros
regarding his claim of traumatic brain injury. He pointed out that the day-of-accident
records showed Metros suffered no loss of consciousness, no posttraumatic amnesia, no
confusion, no disorientation, and no abnormal neurological signs at the scene or in the
emergency room. Dr. Evans noted that within minutes of the accident, Metros's
Glasglow coma scale was 15 out of 15, and he was alert and oriented on all spheres, all of
which was grossly inconsistent with Metros having lost conscious. He explained that if
there is no posttraumatic amnesia, there is no brain injury, and that even considering
Metros's deposition testimony, there was no evidence Metros suffered any brain injury as
a result of the accident. According to Dr. Evans, Metros did not need cognitive,
psychological, or neuropsychological care related to the accident, and his symptoms were
consistent with malingering or a "litigation agenda." Dr. Evans observed that Metros's
reporting of "fantastic tales" about his accident disadvantaged his medical doctors in
Georgia.
10 Defense neurologist Barry Ludwig similarly testified that Metros did not sustain a
traumatic brain injury as a result of the November 2007 car accident. He pointed out that
according to the police, paramedic, nurse and doctor records, Metros did not lose or have
any alteration in his consciousness and he had excellent recollection of the accident
details in the emergency room, which meant he did not have a concussion, amnesia or
period of confusion and thus no brain injury. There was no evidence that Metros hit his
head or that there was a sudden deceleration and strike. Dr. Ludwig also testified that
none of Metros's three MRI's after the accident showed evidence of brain injury (one was
conducted three weeks after the accident and others over the course of the following
months), nor did the CT scan of his brain conducted a couple of days after the accident.
According to Dr. Ludwig, one of Metros's MRI's showed spots that were normal changes
in persons over the age 60, not diagnostic of a brain injury. Dr. Ludwig did not believe
there were signs of axonal sheering or scarring of the nerve cells. Dr. Ludwig testified
that Metros's neurologist in Georgia had done an EMG test to ascertain nerve damage,
and that test was negative.
Dr. Ludwig also testified Metros did not sustain a disk injury in his cervical spine
as a result of the accident. He observed Metros's November 2007 MRI showed an
extensive amount of severe, long-standing degenerative disk disease that predated the
accident. Dr. Ludwig saw nothing in the MRI taken three weeks after the accident that
was definitely due to trauma. He noted that Metros had diminished hearing and
preexisting tinnitus; Metros explained his hearing issue was an old problem related to
being in the Army. Dr. Ludwig found nothing in Metros's records that would provide a
11 neurological reason for his ongoing headaches. According to Dr. Ludwig, symptoms
such as tinnitus, blurry vision, hearing loss, and slurred speech could be due to many
conditions unrelated to brain injury.
Dr. Ludwig agreed Metros had suffered soft tissue injuries that at least initially
warranted chiropractic treatment. However, he did not allow for future care for any
reason related to Metros's injuries as a result of the accident. According to Dr. Ludwig,
all of the future medical treatment that Dr. Gross was recommending, including neck
surgery; behavioral, physical or occupational therapy; neuropsychological evaluations;
and psychological, psychiatric, or neurological treatment, was not needed as a result of
the accident, though Metros might need future medical care for other reasons.
Board certified orthopedic surgeon Alan Mark Strizak observed that Metros
complained of neck pain without evidence of damage or harm to his neck, which meant
he had whiplash associated disorder. An MRI done in Georgia 21 days after the accident
did not show sprain or strain. Dr. Strizak confirmed that Metros's emergency room X-
rays showed preexisting degenerative changes from the fourth to seventh cervical
vertebrae; there was no evidence of acute fracture. He testified the degenerative changes
in Metros's neck did not predispose him to more pain as a result of the accident.
According to Dr. Strizak, the evidence did not support any current or anticipated future
need for cervical spine surgery causally related to, aggravated by, or accelerated by
injuries reasonably sustained in the accident.
As for Metros's shoulder, Dr. Strizak testified that while Metros's November 29,
2007 MRI showed some fraying in his right rotator cuff, it did not show anything that
12 could reasonably be attributed to something that happened 21 days earlier. Metros's left
shoulder MRI was normal for his age. Dr. Strizak testified it was medically improbable
that anything from the accident either caused or even aggravated or accelerated the need
for right shoulder surgery. Nothing in the operative report of Metros's shoulder surgery
showed anything indicating acute trauma that occurred as a result of the accident; all of it
was of long-standing origin. Thus, according to Dr. Strizak, while Metros's shoulder
surgery was reasonable and necessary, it was not causally related to, aggravated or
accelerated because of anything done in the accident. Dr. Strizak testified it was
consistent with Metros's history of chronic right shoulder complaints.
Dr. Strizak addressed what he believed was Metros's medically necessary
treatment. He testified the necessary treatment included the initial treatment and
transportation by the emergency medical technicians, EMT treatment, and the day-of-
accident evaluation and treatment, including X-rays and imaging studies. He testified
only two of the first four visits to Metros's chiropractor were recommended. Metros
received services at St. Jude Medical Center on November 12, 2007, but only some of
those services were related to the accident. Metros sought care from his primary care
provider, Dr. Hart, and those visits were medically necessary through April 1, 2008, and
related to the accident, including a referral for MRI studies for Metros's cervical spine
and shoulders. Metros had 25 sessions of physical therapy, including electrical
stimulation, for his neck and right shoulder from January 21, 2008, to June 12, 2008.
According to Dr. Strizak, this treatment was appropriate for someone with whiplash to
manage their pain, but only the first 12 physical therapy visits were medically necessary
13 and related to the accident. Dr. Strizak testified that Metros would not require any future
orthopedic care or treatment to treat the effects of the accident, disagreeing with Dr.
Gross's conclusions.
At the close of the defense case, counsel read from Metros's deposition in which
he denied that he injured his lower back or left shoulder in the November 2007 accident.
Counsel also read from Metros's interrogatory responses from July 2009 in which he
denied having complaints or injuries involving the same parts of his body claimed to have
been injured in the accident; answered "not applicable" when asked to list all physical,
mental or emotional disabilities he had immediately before the accident; denied
sustaining injuries of the kind for which he was claiming damages at any time after the
accident; and denied filing any action or making a written claim for compensation for
personal injuries in the past ten years other than for the November 2007 accident.
Metros's counsel read another excerpt from Metros's deposition where Metros testified
that he lost consciousness in the November 2007 accident and denied telling paramedics
that he hurt his left shoulder.
Outside of the jury's presence, the parties stipulated that Metros's recoverable past
medical expenses were $21,386.91. They agreed the special verdict form would not
reflect or address those expenses, and that the jury would be told only that Metros had
14 incurred an agreed-upon amount of past medical expenses and they would not have to
decide that issue.2
By special verdict, the jury found that Chowdhary's negligence was "a substantial
factor in causing harm to . . . Metros." By a 10-2 verdict, it found zero damages in past
pain and suffering. It unanimously found zero damages in future medical expenses and
future pain and suffering.
Metros moved for a new trial in part on grounds the jury awarded inadequate
damages and engaged in misconduct, and error in law had occurred at trial. In part,
Metros argued the record was "replete" with evidence that he suffered significant brain
injury as well as multiple orthopedic complications, and that the accident necessitated his
right shoulder surgery. Chowdhary responded by pointing out he had disputed Metros's
allegation of traumatic brain injury, disputed causation of the shoulder surgery and
cervical epidural injections, and presented evidence of a long medical history of serious
injuries preexisting the accident. According to Chowdhary, Metros had not proved his
damages. He also argued that Metros, who did not testify, was severely impeached
during trial and presented limited medical records, and thus the jury had no way to
evaluate his pain and suffering but could conclude he had exaggerated the accident and
his injuries to his treating providers and experts.
2 The parties do not point to any record citation for what the trial court actually told the jury about Metros's past medical expenses. The jury instructions were not reported and are not contained in the appellant's appendix. 15 The trial court denied Metros's motion.3 Metros appeals the court's order.
DISCUSSION
I. Claim of Inadequate Damages
Metros contends the jury's verdict awarding him no future medical expense or pain
and suffering damages is inadequate as a matter of law. He maintains this conclusion
follows because Chowdhary stipulated to liability and Metros presented evidence that he
incurred some medical expenses as a result of Chowdhary's negligence. Analogizing this
case to Dodson v. J. Pacific, Inc. (2007) 154 Cal.App.4th 931 (Dodson), Clifford v.
Ruocco (1952) 39 Cal.2d 327, and Haskins v. Holmes (1967) 252 Cal.App.2d 580,
Metros argues he is entitled to a new trial on the matter. Metros further argues the
evidence that he suffered traumatic brain injury confirms the damage award's inadequacy;
that the defense expert opinions were based on false or nonexistent facts and ignored the
testimony of the lay witnesses to the accident. According to Metros, "Had Drs. Ludwig
3 In part, the court ruled: "There was expert and percipient evidence both for and against actual injuries sustained by [Metros]; the need for future medical treatment; future pain and suffering; and causation of [Metros's] injuries. However, there was evidence that the Plaintiff did sustain some injury in the accident. . . . [¶] . . . [¶] CACI instruction [No.] 3905A, which was given indicates that the jury must use its judgment to decide a reasonable amount based on their common sense. . . . [¶] . . . [¶] . . . Metros did not testify but was severely impeached through the introduction of his answers to interrogatories where he denied all prior injuries. Also, there was the testimony of defense experts who pointed out significant exaggerations and fabrications in . . . Metro[s's] histories given to various doctors. . . . Metros did in fact have significant prior injuries. [¶] Thus, the jury was not given testimony from [Metros] himself, no amount for actual medical charges, and almost no medical records. Also, [Metros's] experts did not testify to any surgical or other severe treatment that [Metros] had undergone. [¶] . . . [¶] The Court . . . can see from the evidence that a reasonable jury using its[ ] common sense, with this evidence, could award zero . . . ." 16 and Evans been informed of the testimony of [the accident witnesses], they, too, would
have testified that [Metros] suffered a mild [traumatic brain injury]."
A. Standard of Review
Code of Civil Procedure section 657 provides in part: "A new trial shall not be
granted upon the ground of insufficiency of the evidence to justify the verdict or other
decision, nor upon the ground of excessive or inadequate damages, unless after weighing
the evidence the [trial] 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."
"The question as to the amount of damages is a question of fact. In the first
instance, it is for the jury to fix the amount of damages, and secondly, for the trial judge,
on a motion for a new trial, to pass on the question of adequacy. Whether the contention
is that the damages fixed by the jury are too high or too low, the determination of that
question rests largely in the discretion of the trial judge. The appellate court has not seen
or heard the witnesses, and has no power to pass upon their credibility. Normally, the
appellate court has no power to interfere except when the facts before it suggest passion,
prejudice or corruption upon the part of the jury, or where the uncontradicted evidence
demonstrates that the award is insufficient as a matter of law. In determining whether
there has been an abuse of discretion, the facts on the issue of damage most favorable to
the respondent must be considered." (Gersick v. Shilling (1950) 97 Cal.App.2d 641,
645.)
17 Thus, in assessing a challenge to evidence supporting a jury's damage awards, we
are normally "bound by the familiar and highly deferential substantial evidence standard
of review. This standard calls for review of the entire record to determine whether there
is any substantial evidence, contradicted or not contradicted, to support the findings
below. We view the evidence in the light most favorable to the prevailing party, drawing
all reasonable inferences and resolving all conflicts in its favor." (People ex rel. Brown v.
Tri–Union Seafoods, LLC (2009) 171 Cal.App.4th 1549, 1567.)
Here, Metros does not rely on the sufficiency of the evidence standard of review.
His challenge is necessarily based on Chowdhary's concession of liability and the theory
that the relevant facts as to damages are uncontested: that the verdict of zero
noneconomic damages is insufficient as a matter of law because it was uncontradicted at
trial that he incurred medical expenses due to Chowdhary's negligence. We examine the
cases that Metros asserts support that position.
B. Authorities
In Dodson v. J. Pacific, Inc., supra, 154 Cal.App.4th 931, the plaintiff was injured
when he fell running away from a large piece of scrap metal that the defendant's
employees were loading onto his truck. (Id. at p. 932.) He was eventually diagnosed
with some degenerative disease of his neck, a central disk rupture, spinal cord
compression and bruising, and weakness in his extremities as a result of a spinal cord
injury. (Id. at p. 934.) The plaintiff underwent surgery to remove the herniated disk and
arthritic joints and to insert a metal plate. (Ibid.) He sued and at trial his expert opined
his spinal cord injury and surgery resulted from the accident. (Ibid.) The defense experts
18 disputed that conclusion. (Ibid.) The jury found the defendant was negligent and its
negligence caused plaintiff's injuries. (Id. at p. 935.) It awarded the plaintiff $16,679 in
economic damages for his medical expenses, but no compensation for noneconomic
injury or pain and suffering. (Ibid.)
The appellate court made clear that courts on the question had stated "an award
that does not account for pain and suffering is 'not necessarily inadequate as a matter of
law' [citation] and that '[e]very case depends upon the facts involved.' " (Dodson, supra,
154 Cal.App.4th at p. 936, citing Miller v. San Diego Gas and Electric Co. (1963) 212
Cal.App.2d 555, 558 (Miller).) However, it narrowly held under those particular
circumstances, the jury's verdict for zero noneconomic damages was inadequate as a
matter of law: "We hold that where a plaintiff had undergone surgery in which a
herniated disc is removed and a metallic plated inserted, and the jury has expressly found
that defendant's negligence was a cause of plaintiff's injury, the failure to award any
damages for pain and suffering results in a damage award that is inadequate as a matter of
law." (Dodson, 154 Cal.App.4th at p. 933.) Reviewing authorities, the court explained
that by its special verdict the jury had resolved "factual conflicts [that] may justify the
jury's failure to award non-economic damages—whether the plaintiff received any
substantial injury or suffered any substantial pain; whether medical treatment was
actually given or was given as a result of the injuries; and whether the medical treatment
was reasonable or necessary . . . ." (Id. at p. 937.) It stated "we know—because the jury
expressly decided—that [the defendant's] negligence was a cause of [plaintiff's] injury,
and that [plaintiff] suffered economic damages 'caused by the accident . . . .' We know
19 that he underwent surgery in which a herniated disc was removed and replaced with a
metallic plate. We know the jury awarded damages, at least in part, for [plaintiff's]
surgical expenses. A plaintiff who is subjected to a serious surgical procedure must
necessarily have endured at least some pain and suffering in connection with the surgery.
While the extent of the plaintiff's pain and suffering is for the jury to decide, common
experience tells us it cannot be zero." (Dodson, at pp. 937-938.)
In part, Dodson relied on the reasoning of Miller, supra, 212 Cal.App.2d 555.
There, the plaintiff suffered an electric shock resulting from an electric company's
negligence, and claimed "severe and permanent injuries," including blistering and
discoloration of her arm as well as "nervous and mental damage." (Id. at p. 556.) She
presented evidence that she was hospitalized and that her total medical bills were
$1,133.18. (Id. at p. 557.) The defendant stipulated to those expenses, but seriously
disputed the extent of her claimed injuries; it "expressly refrained from stipulating that
the expenses were reasonable or that they were for treatments rendered necessary by
reason of the negligence of the defendant." (Id. at p. 558.) The jury returned a verdict
against the company for the exact amount of the medical bills. (Ibid.)
On appeal, the Miller court upheld the trial court's denial of a new trial, rejecting
the plaintiff's contention that the verdict was inadequate as a matter of law. (Miller,
supra, 212 Cal.App.2d at p. 562.) Though the court stated that a verdict for solely
medical expenses would be inadequate where "the right to recover was established and
that there was also proof that the medical expenses were incurred because of defendant's
negligent act," at the same time it emphasized, "It cannot be said . . . that because a
20 verdict is rendered for the amount of medical expenses or for a less amount the verdict is
inadequate as a matter of law. Every case depends upon the facts involved." (Id. at p.
558.) In Miller, there was highly conflicting evidence of the extent of plaintiff's injuries;
the defendant had presented evidence that she falsified her injuries and physicians
testified there was nothing to indicate an electric burn, charring, or atrophy. Having
examined the records, the appellate court stated, "[W]e are compelled to conclude that
there was a substantial conflict as to whether plaintiff received any substantial injury and
as to whether bills incurred for medical examinations and treatment were rendered
necessary by reason of the shock or whether they were necessary at all. The evidence
would here amply support a finding that plaintiff received no injury whatever. It is not
for this court to weigh the evidence. Our province goes no further than a determination
that there was substantial evidence to support the verdict. Faced by this conflict in
testimony and with evidence that there was negligence on the part of the defendant, it
seems entirely probable that the jury felt that although plaintiff was entitled to no more
than nominal damages, the kindest disposition of the case was to award to her an amount
at least equivalent to her medical bills. Obviously the trial court so appraised the
situation and permitted the judgment to stand." (Id. at p. 260.)
In Haskins v. Holmes, supra, 252 Cal.App.2d 580, the court held that " '[w]hen a
verdict has been returned for the exact amount of special damages in a case where
substantial general damages were obviously incurred, and where a strong case of
negligence has been made, a denial of a new trial by the trial court must be held an
21 abuse of discretion and a judgment on a verdict in an insufficient amount may not be
affirmed.' " (Id. at p. 587.) Haskins involved an assault and battery in which there was
no issue as to liability and it was undisputed that the plaintiff had suffered a fractured
cheek and jaw bones. (Id. at p. 585.) Acknowledging the trial judge's findings, the court
stated, "If [plaintiff's] injuries were sufficiently 'severe' (as found by the trial judge . . . )
as to require the surgical, medical and hospital care in the amount found . . . , it is
patently obvious that necessarily and inevitably accompanying such injuries, surgery, and
medical and hospital care were substantial pain, suffering, shock and inconvenience."
(Id. at p. 585.)
In Clifford v. Ruocco, supra, 39 Cal.2d 327, the evidence established "without
contradiction" that as a result of a car accident caused by the defendant's negligence the
plaintiff suffered a scalp laceration, bruises, and a painful infection in her thigh, requiring
an incision and draining of the wound, and the need for a future surgery. (Id. at p. 329.)
She was confined to a hospital for 24 days and "experienced a considerable amount of
pain and inconvenience for a year before the case came to trial, and . . . [was] likely to
continue to suffer for some time in the future." (Ibid.) Under those circumstances, where
plaintiff incurred expenses of $1,159.42 for medical services, and the cost of a future
operation was estimated at $300, the jury's award of $1,500 was inadequate as a matter of
law and the plaintiff was entitled to a new trial on all issues. (Id. at pp. 329-330.)
In Dodson, Haskins, and Clifford, the verdict awarding only special damages was
held inadequate as a matter of law where the evidence made clear that substantial general
damages "obviously" or "necessarily" resulted from surgical medical treatment, or pain
22 and suffering "inevitably accompanied" the type of injury incurred. Other cases reflect
similar outcomes. (See Wilson v. R.D. Werner Co. (1980) 108 Cal.App.3d 878, 883
[reversing verdict awarding a plaintiff nothing for his pain and suffering and new trial
granted where the evidence of the plaintiff's pain and suffering was "uncontroverted"; he
required surgery, physical therapy, and his arms were immobilized in casts for about
three months].) To the contrary are cases as Miller, supra, 212 Cal.App.2d 555 in which
the evidence is highly contested, and there is some indication the injuries are
insubstantial, preexisting, or falsified. (See Whyatt v. Kukura (1958) 157 Cal.App.2d
803, 805 [verdict of $750 for the plaintiff in a rear-end accident did not warrant a new
trial where plaintiff sustained whiplash type injuries and plaintiff had a history of
preexisting conditions including ulcer, high blood pressure and arthritis, doctors testified
that any condition of spurring or irritation in her spine was not caused by the accident, no
muscle spasm was found and X-rays were normal except for preexisting arthritic
changes; "[c]learly the evidence was such . . . that the jurors might very reasonably have
believed . . . that plaintiff's physical disabilities, as well as the various items of expense
which made up her claim of special damages, were chargeable very largely to preexisting
causes"]; Kraut v. Cornell (1959) 175 Cal.App.2d 528, 530-533 [award of $300 for
plaintiff in rear-end accident was not inadequate as a matter of law where there was
conflicting medical evidence of plaintiff's injuries, the jury was free to reject plaintiff's
uncontradicted testimony as self-interested and subjective, and the jury was entitled to
come to the conclusion that plaintiff's aches and pains were largely due to his previous
physical condition and not injuries received in the accident; "it cannot be said as a matter
23 of law that the award was inadequate, for it is patent that the jury was not convinced
plaintiff had sustained his burden of proof that the ills he described were all caused by
defendant's negligence"]; Avery v. Watje (1967) 253 Cal.App.2d 660, 662 [$2,000 verdict
for injuries sustained in rear-end accident not inadequate where plaintiff suffered prior
accidents with similar injuries, had a congenital low back and had back problems, the
impact was "slight" and the plaintiff did not complain of pain at that time; "the jury's
verdict and judge's determination to allow it to stand were well within the bounds of
reasonableness" and they "might well have . . . felt that the accident in question had no
substantial effect on plaintiff's low back condition by reason of its prior existence, and the
other injuries"].)
C. Analysis
We do not draw from Dodson and Miller a bright line rule that noneconomic
damages must be awarded where a defendant concedes liability, and there is evidence a
plaintiff has incurred medical expenses due to the defendant's negligence. The foregoing
authorities instead require us to examine the evidence in total to ascertain the type and
nature of medical treatment Metros underwent, and whether the evidence suggests Metros
necessarily or inevitably incurred pain and suffering in connection with that treatment as
in Dodson, or whether, as in Miller and Whyatt, the evidence was highly disputed as to
not only the nature and extent of Metros's injuries, but also whether they resulted from
the accident or from preexisting medical conditions.
The circumstances here are akin to Miller and Whyatt in that Chowdhary presented
abundant contrary evidence from which the jury could conclude Metros did not suffer a
24 traumatic brain injury or any other significant injury, much less an injury requiring
painful medical treatment such as surgery, in connection with the accident. In making its
final determination as to damages, the jury had the power to give whatever weight it
chose to the evidence. (San Diego Metropolitan Transit Development Bd. v. Cushman
(1997) 53 Cal.App.4th 918, 931.) The jury was entitled to accept the testimony of Drs.
Evans and Ludwig that Metros did not suffer a brain injury in the accident. It was
entitled to accept Dr. Strizak's opinion as to Metros's reasonable medical treatment
caused by the accident and conclude that his treatment—Metros's initial transportation
and emergency room treatment, various examinations and diagnostic studies, two
chiropractic sessions of electronic stimulation, and several physical therapy sessions to
treat his soft tissue injuries—did not obviously or inevitably result in appreciable or
compensable pain and suffering. It was also entitled to conclude, in view of Metros's
prior accidents and injuries—including his preexisting degenerative disease in his
cervical spine and right shoulder condition, that any claim by Metros of pain and
suffering, or his need for shoulder surgery or any future medical care, was attributable to
those preexisting conditions. Such a conclusion was fully supported by the evidence,
including Dr. Strizak's testimony that Metros's shoulder surgery was not causally related
to or accelerated by the accident.4 (Accord, Miller, supra, 212 Cal.App.2d at p. 560;
Whyatt v. Kukura, supra, 157 Cal.App.2d at p. 805.)
4 Metros points out Dr. Strizak testified that "when someone is involved in a motor vehicle accident and they complain of whiplash, we think it appropriate to try to manage their pain and return them as quickly as possible to their normal life. So, for the 25 Further, the jury reasonably questioned Metros's credibility. The results of Dr.
Purisch's personality testing permitted it to conclude Metros had exaggerated his claims
of injury and their extent, and it plainly accepted the undisputed evidence that Metros had
reported false information to his physicians concerning the accident, negatively affecting
his credibility as a whole. The fact Chowdhary stipulated to liability, and defense experts
agreed that Chowdhary's negligence caused Metros to incur some injury requiring
medical treatment, does not eliminate the jury's obligation to determine the nature and
extent of Metros's injuries and what medical treatment was or was not necessary, and
assess Metros's credibility on those issues. It was the jury's role to assess the extent of
Metros's damages, and we will give great weight to its determination as well as the trial
court's on a new trial motion, upholding those decisions wherever reasonably possible.
(Torres v. City of Los Angeles (1962) 58 Cal.2d 35, 53.)
We are unpersuaded by Metros's argument that the testimony of defense experts
Drs. Ludwig and Evans was "totally incompetent" because they were not presented with
the accident witnesses' testimony and thus "ignored the acute injury characteristics (loss
of consciousness) suffered by [Metros] in the eight minutes immediately preceding the
accident." The flaw with this argument is that the witnesses to the accident—both lay
persons who were not shown to have any medical training—did not testify that Metros
complaints he has after the accident, it's appropriate to provide treatment." Though Dr. Ludwig agreed Metros had suffered soft tissue injuries, Dr. Strizak made clear that Metros's postaccident MRI in Georgia did not show sprain or strain. Dr. Strizak's generalization about individuals with whiplash did not require the jury to conclude Metros necessarily suffered a compensable amount of pain in connection with the soft tissue injuries he suffered in the accident. 26 had lost consciousness. One simply reported that after the accident he saw Metros with
his eyes closed and his head slumped, and the other reported that four or five minutes
after the accident Metros responded to her question if he was okay. That the latter
witness also described Metros as confused and disoriented, "kind of looking like the
moment was not good for him" is not necessarily evidence of loss of consciousness or
head injury, and the jury could reasonably conclude such a condition is typical of anyone
who is involved in a motor vehicle accident of the type in this case. In short, the lay
witnesses' testimony did not prove Dr. Ludwig or Dr. Evans false, or unequivocally
establish that Metros had lost consciousness, and both doctors would have been entitled
to reject any such inference in view of the undisputed medical evidence that Metros had
not lost consciousness in the accident but was alert and oriented afterwards, and that his
emergency room examination and imaging studies were normal. Indeed, both Dr.
Ludwig and Dr. Evans testified that evidence of what the lay witnesses to the accident
saw would not make a difference in their conclusions.
Thus, the jury's verdict of zero past and future general damages, and zero future
medical expenses, is fully justified by the evidence, which was highly disputed as to not
only the nature and extent of Metros's injuries, but whether they resulted from the
accident or from preexisting medical conditions. We cannot conclude as a matter of law
that the evidence presented to the jury required them to award any greater amount.
27 II. Claim of Juror Misconduct
A. Legal Principles and Standard of Review
A trial court is authorized to grant a new trial on grounds of "[i]rregularity in the
proceedings of the . . . jury . . . by which either party is prevented from having a fair trial"
as well as "[m]isconduct of the jury." (Code Civ. Proc., § 657, subds. 1 & 2; see Oakland
Raiders v. National Football League (2007) 41 Cal.4th 624, 633; Montoya v. Barragan
(2013) 220 Cal.App.4th 1215, 1227.)
This court will not reverse a trial court's decision to deny a new trial alleging juror
misconduct unless, on a review of the entire record, the court has abused its discretion.
(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859; see People v. Dykes (2009)
46 Cal.4th 731, 809; Sarti v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187, 1213; Ovando
v. County of Los Angeles (2008) 159 Cal.App.4th 42, 59; ABF Capital Corp. v. Berglass
(2005) 130 Cal.App.4th 825, 832 ["When the court has denied a motion for new trial . . .
we must determine whether the court abused its discretion by examining the entire record
and making an independent assessment of whether there were grounds for granting the
motion."].) Otherwise, we scrutinize the trial court's determinations underlying its new
trial order under the test appropriate for such determination. (Aguilar v. Atlantic
Richfield Co., 25 Cal.4th at p. 859.)
When evaluating a new trial motion based on juror misconduct, the trial court
undertakes a three step process. (Barboni v. Tuomi (2012) 210 Cal.App.4th 340, 345.) It
must first " 'determine whether the affidavits supporting the motion are admissible.
[Citation.]' [Citation.] This, like any issue of admissibility, we review for abuse of
28 discretion. [Citation.] [¶] Second, 'If the evidence is admissible, the trial court must
determine whether the facts establish misconduct. [Citation.]' [Citation.] 'The moving
party bears the burden of establishing juror misconduct.' " (Ibid.) " ' "[W]e accept the
trial court's credibility determinations and findings on questions of historical fact if
supported by substantial evidence. [Citations.]" ' [Citations.] [¶] ' "Lastly, assuming
misconduct, the trial court must determine whether the misconduct was prejudicial."
[Citation.]' [Citation.] On appeal, this court reviews the entire record, including the
evidence, and makes an independent determination as to whether the misconduct was
prejudicial." (Ibid.; see also People v. Hajek (2014) 58 Cal.4th 1144, 1249; Enyart v.
City of Los Angeles (1999) 76 Cal.App.4th 499, 508.)
"Juror misconduct raises a presumption of prejudice, and unless the prevailing
party rebuts the presumption by showing the misconduct was harmless, a new trial should
be granted. [Citations.] This does not mean that every insignificant infraction of the
rules by a juror calls for a new trial. Where the misconduct is of such trifling nature that
it could not in the nature of things have prevented either party from having a fair trial, the
verdict should not be set aside." (Enyart v. City of Los Angeles, supra, 76 Cal.App.4th at
p. 507.) Where it is reasonably probable that in the absence of misconduct the jury would
have arrived at a different verdict, the moving party is entitled to a new trial. (Id. at p.
508.)
B. Evidence Presented and the Trial Court's Ruling
In support of his assertion of juror misconduct, Metros provided affidavits from
jurors Jennie Kendrick and Deborah Lafrenz. Kendrick averred that during deliberations,
29 "there were discussions about the [sic] whether or not [ ] Metros would benefit from an
award of money, even though the majority of us thought it justified, since the expert
witness costs were over $100,000." She stated, "Many of the jurors ultimately expressed
an opinion that there was no reason to award money to Mr. Metros because it would only
go to pay the experts. The majority of the jurors decided to award zero dollars for that
reason." Juror Kendrick also averred that a juror who was a nurse told the jurors that she
was familiar with EEG studies on brain damaged people and Metros's EEG would have
detected brain damage if he had sustained it. According to Juror Kendrick, this juror told
them that Metros's normal EEG meant he could not have brain damage, and a second
juror, also a nurse, stated that the findings on Metros's MRI's were normal and would be
found on all brain MRI's. Juror Kendrick also stated that a male juror "gave outside
evidence to the jury regarding the forces involved in the collision that contradicted the
expert testimony in the case." Specifically, she averred the male juror told the jury that
he was familiar with the forces involved in car crashes from his knowledge of auto
racing, and that Metros's expert was wrong when he testified that Metros experienced 50
g-forces during the collision, because such force would have killed him. Juror Kendrick
stated: "This evidence seemed to have influenced a number of jurors on the issue of
whether the collision involved forces that could have caused brain damage." Juror
Lafrenz's declaration only addresses the male juror's comments about g-forces, and is
identical to Juror Kendrick's.
In opposition, Chowdhary presented sworn statements of juror foreperson Jennifer
Zamorano and juror Gina Miller. Both Zamorano and Miller stated that all of the jurors
30 had an opportunity to express their opinions about the evidence, and did not hear or see
anything to indicate bias expressed by any juror for or against either party. Zamorano
denied hearing any juror say Metros should or should not receive an award based on
expert costs; that while costs were brought up, the jury was not influenced by it. She
stated there were discussions about the g-forces and EEG's, but did not think they swayed
any juror's mind. According to her, she reminded the male juror that his comments were
not evidence, but the entire jury had already rejected Singh's conclusions about g-forces
in any event. This was based on their own analysis of the expert's testimony, "not about
Dale Earnhardt or car crashes or NASCAR or anything like that." Zamorano was asked
whether, based on anything said about the medical evidence and specifically the EEG's or
MRI's, there was any indication the jury decided the result based on someone's personal
experience as opposed to the evidence. She responded: "I don't think it was personal
experience. From what I remember, it was to the point where we all just sort of felt like
one expert canceled out the other, and it just didn't—nothing seemed to make sense."
Based on what Zamorano heard and saw during deliberations, she stated the jury's verdict
was based on the evidence rather than outside information that may have been brought in.
Miller disagreed with the statements made by jurors Kendrick and Lafrenz as to
misconduct; she stated she did not hear any juror say whether or not Metros should
receive an award based on what they thought were the expert costs, she did not hear any
male juror say Metros's expert was wrong based on his knowledge of car racing or hear
any juror say this influenced their verdict, and she did not hear any juror say evidence
should be disregarded based on what a nurse on the jury said about the MRI's. She did
31 not think anything influenced the jurors other than the trial testimony. According to
Miller, the jurors discussed all of the expert testimony and decided Metros did not sustain
brain damage.
The trial court sustained Chowdhary's objections to the substantive paragraphs of
Kendrick's and Lafrenz's declarations on grounds they were speculative, lacked
foundation and hearsay. Based on the Zamorano and Miller statements, it found there
was no evidence to support a presumption of prejudice from juror misconduct.
Metros contends he is entitled to a new trial because he established misconduct
giving rise to a presumption of prejudice and Chowdhary presented no evidence rebutting
the presumption. Specifically, he argues the juror declarations of Kendrick and Lafrenz
were relevant and admissible in evidence, and showed three other jurors interjected their
own specialized knowledge into the deliberations. Metros argues the juror declarations
properly referred to overt acts or statements of other jurors, at least in part,5 and
consequently the trial court erred by sustaining Chowdhary's objections to those portions
of the declarations. According to Metros, Chowdhary did not affirmatively rebut the
5 Metros concedes the court properly sustained Chowdhary's objections to Kendrick's and Lafrenz's assertions that the jurors' remarks seemed to influence the other jurors. (See People v. Steele (2002) 27 Cal.4th 1230, 1265 (Steele); Evid. Code, § 1150, subd. (a) ["Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined."], italics added.) 32 evidence of misconduct by the male juror who discussed g-forces, and the record as a
whole, particularly the fact Singh gave uncontroverted testimony concerning the potential
for the collision to inflict serious injury and the jury's zero noneconomic and future
medical damage verdict, confirms prejudice.
We accept those portions of Kendrick's and Lafrenz's declarations that report
objectively ascertainable overt acts and statements of other jurors occurring within the
jury room, as they are subject to corroboration. (Steele, supra, 27 Cal.4th at p. 1265;
Enyart v. City of Los Angeles, supra, 76 Cal.App.4th at p. 508, fn. 6.) We nevertheless
conclude the trial court did not err by ruling there was insufficient evidence of juror
misconduct, or that if misconduct occurred, it was not prejudicial.
To the extent Metros claims misconduct relating to a discussion of expert costs
somehow justifying a zero damage award, both Zamorano and Miller denied hearing any
juror make the statements Kendrick assertedly heard, and the trial court plainly accepted
Zamorano and Miller's declarations on that point. We will not disturb the court's
credibility assessment on that issue. (Whitlock v. Foster Wheeler, LLC (2008) 160
Cal.App.4th 149, 160; Moore v. Preventative Medicine Medical Group, Inc. (1986) 178
Cal.App.3d 728, 743 [weighing credibility of conflicting declarations on a motion for
new trial is uniquely within the trial court's province]; Weathers v. Kaiser Foundation
Hospitals (1971) 5 Cal.3d 98, 108 [when an issue is tried on affidavits, appellate court
will not disturb a determination of controverted facts based on substantially conflicting
statements].)
33 As for Metros's claims concerning the male juror's and nurses' statements, it is true
that a juror "should not discuss an opinion explicitly based on specialized information
obtained from outside sources. Such injection of external information in the form of a
juror's own claim to expertise or specialized knowledge of a matter at issue is
misconduct." (In re Malone (2011) 12 Cal.4th 935, 963 (Malone.) However, "[i]t is not
improper for a juror, regardless of his or her educational or employment background, to
express an opinion on a technical subject, so long as the opinion is based on the evidence
at trial. Jurors' views of the evidence, moreover, are necessarily informed by their life
experiences, including their education and professional work." (Id. at p. 963; see also In
re Lucas (2004) 33 Cal.4th 682, 696 [jurors' knowledge and beliefs that they bring to
deliberations may stem from education or employment, but sometimes comes from other
personal experiences]; Moore v. Preventive Medicine Medical Group, Inc., supra, 178
Cal.App.3d at pp. 741-742 ["Jurors do not enter deliberations with their personal histories
erased, in essence retaining only the experience of the trial itself. Jurors are expected to
be fully functioning human beings, bringing diverse backgrounds and experiences to the
matter before them."].)
In Steele, supra, 27 Cal.4th 1230, the California Supreme Court stated, "[I]f we
allow jurors with specialized knowledge to sit on a jury, and we do, we must allow those
jurors to use their experience in evaluating and interpreting that evidence. Moreover,
during the give and take of deliberations, it is virtually impossible to divorce completely
one's background from one's analysis of the evidence. We cannot demand that jurors,
especially lay jurors not versed in the subtle distinctions that attorneys draw, never refer
34 to their background during deliberations. 'Jurors are not automatons. They are imbued
with human frailties as well as virtues.' " (Id. at p. 1266.) There is, however, "[a] fine
line . . . between using one's background in analyzing the evidence, which is appropriate,
even inevitable, and injecting 'an opinion explicitly based on specialized information
obtained from outside sources,' which . . . [is] misconduct." (Ibid.) Thus, "a distinction
must be drawn between the introduction of new facts and a juror's reliance on his or her
life experience when evaluating evidence." (People v. Allen (2011) 53 Cal.4th 60, 76.)
Steele involved a claim that jurors had engaged in misconduct by referencing their
work experiences when assessing trial evidence during deliberations. The criminal
defendant in Steele argued he suffered from psychological impairment resulting from his
Vietnam war experience. His expert testified that the defendant's military records
showed he was in the Navy and, while had not engaged in combat, he had received two
weeks of training, including how to kill people with knives, at a SEAL counter-
insurgency school. (Steele, supra, 27 Cal.4th at p. 1240.) The expert stated that the
defendant may have had a trauma-inducing combat assignment not reflected in his
official records. (Ibid.) The defendant also called physicians who had conducted a brain-
mapping test to map the electrical activity of his brain, which showed various
abnormalities in brain function. (Id. at p. 1241.) One doctor admitted such testing "was a
fairly new technique" and that the control group for that system contained 16 people of
defendant's age. (Ibid.) Another testified he believed use of the brain-mapping test was
generally accepted in the scientific community for clinical use. (Id. at p. 1242.)
35 Following his conviction, defendant sought a new trial based in part on juror
misconduct. (Steele, supra, 27 Cal.4th at p. 1260.) He provided juror affidavits
indicating that four jurors had drawn on their military experience in assessing whether he
had been exposed to combat in Vietnam. One juror stated that, based on his military
experience, he did not believe the defendant had served in Vietnam "at a time when he
might have been exposed to combat." (Id. at p. 1259.) Two other jurors stated they had
attended the counterinsurgency SEAL school and had not been taught how to kill people.
(Ibid.) Two other jurors "with medical experience" informed the jury that the criteria
used by the doctors to establish the validity of the brain mapping test was " 'inadequate'
based on 'what they ha[d] learned in their own experience in the medical field.' " (Id. at
p. 1260.) The trial court denied the motion.
The Supreme Court affirmed, concluding there was no merit to defendant's
assertion that the jurors committed misconduct by " 'the offering of expertise . . . , during
deliberations, to help the jury as a whole to resolve key factual issues the case presented."
(Steele, supra, 27 Cal.4th at p. 1260.) The Court explained that "extensive evidence was
produced concerning the nature and extent of defendant's military training and Vietnam
experience and its effect, if any, on his crimes, as well as evidence concerning the
validity of [brain-mapping] testing. This evidence was susceptible of various
interpretations. The views the jurors allegedly asserted here were not contrary to, but
came within the range of, permissible interpretations of that evidence. All the jurors,
including those with relevant personal backgrounds, were entitled to consider this
evidence and express opinions regarding it." (Id. at pp. 1265-1266.)
36 We see little difference in the jurors' statements in this case from those in Steele.
As in Steele, supra, 27 Cal.4th 1230, the male juror's statements concerning the
consequence or effect of up to 50 g-forces did not introduce specific facts outside of the
evidence, but constituted his personal evaluation and rejection of Singh's testimony based
on his own knowledge and life experience. That juror was entitled to evaluate Singh's
opinion in view of medical evidence showing Metros had not suffered any loss of
consciousness, exhibit confusion, or have any overt head injury as a result of the
accident, assess its credibility, and persuade the jury about his credibility determination.
(See, e.g., In re Lucas, supra, 33 Cal.4th at p. 697 ["[A] juror's statement that a
defendant's sole defense is not credible does not, of course, by itself constitute
misconduct."].) And the record does not suggest that the male juror brought highly
technical information before the jury, or held himself out as an expert. (Ibid.) All of the
jurors heard the same medical evidence, and they considered Singh's testimony about the
speed at which both cars were travelling in the collision, and could decide for themselves
based on their own experiences the effect of the vehicle's impact.
In any event, neither declaration of Kendrick or Lafrenz shows that other jurors
expressed any agreement with the male juror's assertions, and Zamorano's statement,
which the trial court accepted, made clear that she reminded the jury during deliberations
several times to reach their verdict based on the evidence presented during the case. The
record falls short of showing that the male juror or any other juror decided the case based
on anything other than the evidence presented. We reach the same conclusion as to the
nurses' remarks concerning Metros's imaging studies, the results of which were examined
37 and testified to by both Metros's and Chowdhary's experts. We do not ascertain
misconduct or resulting prejudice.
III. Exclusion of Dr. Gross's Testimony Concerning Causation of Orthopedic Injury
Metros contends the trial court prejudicially erred when it excluded the testimony
of Dr. Gross as to whether the accident caused the damage in Metros's shoulder that
needed surgery. He maintains that even though Dr. Gross specializes in neurology, he
was qualified to give expert opinions on the treatment and evaluation of orthopedic
injuries and the causation of those injuries, and his specialization should have only gone
to the doctor's credibility. He further asserts that the substance of Dr. Gross's testimony
was disclosed in his expert witness exchange. According to Metros, under Kennemur v.
State of California (1982) 133 Cal.App.3d 907, the fact Dr. Gross did not give these
opinions in his deposition does not preclude him from giving them at trial as long as the
substance of his testimony was disclosed in his expert exchange; it was defense counsel's
obligation to elicit the information from him.
A. Legal Principles as to Expert Disclosure and Standard of Review
Any party may demand the exchange of expert witness information. (Code Civ.
Proc., § 2034.210, subd. (a).) On such a demand, the responding party must disclose "the
general substance of the testimony that the expert is expected to give." (Code Civ. Proc.,
§ 2034.260, subd. (c)(2); see Williams v. Volkswagenwerk Aktiengesellschaft (1986) 180
Cal.App.3d 1244, 1257 (Williams).) "As interpreted by the California courts, this
requires a party to 'disclose the substance of the facts and the opinions to which the
expert will testify, either in his witness exchange list, or in his deposition, or both.' "
38 (Williams, at pp. 1257-1258, italics omitted; Bonds v. Roy (1999) 20 Cal.4th 140, 148;
Kennemur v. State of California, supra, 133 Cal.App.3d at p. 919.) If a party wishes to
expand the scope of an expert's testimony beyond what is stated in the declaration, it
must successfully move for leave to "[a]mend that party's expert witness declaration with
respect to the general substance of the testimony that an expert previously designated is
expected to give." (Code Civ. Proc., § 2034.610, subd. (a)(2); see Bonds v. Roy, at p.
145.)
Thus, in Bonds v. Roy, supra, 20 Cal.4th 140, the defendant designated an expert
with a declaration stating the expert would testify about damages, but at trial, sought to
elicit testimony as to standard of care. (Id. at pp. 142-143.) The trial court would not
permit it, and the California Supreme Court held it properly limited the scope of the
expert's testimony to the general substance of what was previously described in the expert
witness declaration. (Id. at p. 149.) In part, the court explained: "[T]he very purpose of
the expert witness discovery statute is to give fair notice of what an expert will say at
trial. This allows the parties to assess whether to take the expert's deposition, to fully
explore the relevant subject area at any such deposition, and to select an expert who can
respond with a competing opinion on that subject area. 'The opportunity to depose an
expert during trial, particularly if the testimony relates to a central issue, often provides a
wholly inadequate opportunity to understand the expert's opinion and to prepare to meet
it. [Citations.]' [Citation.] '[T]he need for pretrial discovery is greater with respect to
expert witnesses than it is for ordinary fact witnesses [because] . . . . [¶] . . . the other
parties must prepare to cope with witnesses possessed of specialized knowledge in some
39 scientific or technical field. They must gear up to cross-examine them effectively, and
they must marshal the evidence to rebut their opinions.' " (Bonds v. Roy, at pp. 146-147.)
"When an expert is permitted to testify at trial on a wholly undisclosed subject area,
opposing parties . . . lack a fair opportunity to prepare for cross-examination or rebuttal."
(Id. at p. 147.)
The trial court has a great deal of discretion when it comes to admitting expert
testimony, and thus we review the court's admission of expert testimony for clear abuse
of its discretion, looking to whether the court's ruling exceeds the bounds of reason, all of
the circumstances before it being considered. (Piscitelli v. Friedenberg (2001) 87
Cal.App.4th 953, 972; Burton v. Sanner (2012) 207 Cal.App.4th 12, 18; see also Easterby
v. Clark (2009) 171 Cal.App.4th 772, 778.) Even if the ruling is erroneous, however, it is
not reversible absent a miscarriage of justice. (Easterby, at p. 783, citing Cal. Const., art.
VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836.) " '[A] "miscarriage of justice"
should be declared only when the court, "after an examination of the entire cause,
including the evidence," is of the "opinion" that it is reasonably probable that a result
more favorable to the appealing party would have been reached in the absence of the
error.' " (Easterby, at p. 783.)
B. The Trial Court Did Not Err by Excluding Dr. Gross's Opinions as to Causation of
Metros's Shoulder Injuries
Here, the trial court sustained Chowdhary's counsel's objections to Dr. Gross's
opinion that Metros's damaged shoulder was caused by the accident, ruling such an
opinion was beyond the scope of Metros's expert designation. In arguing for admission
40 of Dr. Gross's opinion, Metros's counsel read from Dr. Gross's expert designation, which
stated he was "expected to testify as to the entire medical treatment of [Metros] within his
specialty, and as to the nature and extent of [Metros's] injuries, resulting disabilities,
medical treatment to date and reasonably anticipated to render in the future."6 (Italics
added.) Chowdhary's counsel argued the doctor's opinions were limited to his specialty
in neurology and Metros's neurological deficits; that Metros had another orthopedic
expert, Dr. Beck, whose testimony was not favorable; and Metros's counsel was simply
trying to get a new opinion into evidence with Dr. Gross, his last expert witness. The
trial court stated: "Unless [Dr. Gross's] designation was clear that he was going to testify
to the shoulder issues and all other issues, then you'd say, 'Well, look at the designation,'
but the designation is limited to his area of specialty. And if he didn't express an opinion
[at his deposition], I won't let you go into that."
The trial court's ruling was not an abuse of its broad discretion, in view of the
language of Dr. Gross's expert designation identifying his opinions as relating to Metros's
medical treatment "within his specialty." This limitation, combined with the fact Metros
had designated another expert, Dr. Beck, to testify concerning orthopedic injuries and
care, compel us to conclude the trial court reasonably ruled Dr. Gross's designation did
not give Chowdhary fair notice that he would testify about causation of Metros's shoulder
6 Dr. Gross's designation additionally provided: "Further, Dr. Gross will testify to the reasonableness and necessity of the medical treatment and medical billings rendered/incurred to date and the necessity of future medical care and cost thereof. Dr. Gross will further testify to the diagnosis and prognosis of the plaintiff's injuries. Dr. Gross is also expected to testify regarding the opinions of other experts and parties in this matter." 41 injuries, and Dr. Gross's proffered opinion was an expansion of the scope of his expert
testimony that surprised the defendant.
Metros's arguments to the contrary are misplaced. He maintains the trial court
ignored the fact that as a medical doctor, Dr. Gross was qualified to testify concerning his
shoulder injuries and their cause. Metros relies on Miller v. Silver (1986) 181 Cal.App.3d
652, in which a psychiatrist with clinical surgery experience was held competent to
testify about a plastic surgeon's negligence in failing to administer antibiotics. (Id. at pp.
659-661.) But this argument disregards the trial court's ruling, which was based on its
interpretation of the scope of Metros's expert designation; whether Dr. Gross was
qualified to give an expert opinion on the subject is of no import where the general
substance of his proffered opinion was not fairly disclosed in the expert designation.
Metros further argues that Kennemur v. State of California, supra, 133 Cal.App.3d
907 establishes that the substance of Dr. Gross's testimony was disclosed and included
both matters neurologic and medical issues not limited to neurology. He points out that
at Dr. Gross's deposition, Chowdhary's counsel did not ask if the doctor had expressed all
of the opinions he was going to give in the case, and asserts the trial court "penalized
[him] for Respondent's failings." He relies on the statement in Kennemur that a party
"must disclose either in his witness exchange list or at his expert's deposition, if the
expert is asked, the substance of the facts and the opinions which the expert will testify to
at trial." (Id. at p. 919, italics added.) But Metros misunderstands Kennemur. There, the
trial court held the plaintiff's failure to comply with the expert designation requirements
barred her from questioning an expert witness on a critical issue in that case. (Id. at pp.
42 912-915.) On appeal, the appellate court reasoned that this failure did not automatically
bar the expert from testifying, as long as he had disclosed his opinion on the subject
during deposition. The court reasoned a disclosure during deposition would render "the
statutory noncompliance . . . harmless since [defendant] would have been afforded the
opportunity to prepare for cross-examination and rebuttal of [the expert's] opinion." (Id.
at p. 918, fn. 5.)7
Thus, the Kennemur court examined the expert's deposition to determine whether
it afforded the defendants adequate notice of the expected substance of his trial testimony
only to see whether that deposition testimony rendered harmless the plaintiff's erroneous
failure to disclose the substance of his testimony in her expert designation. (Kennemur v.
State of California, supra, 133 Cal.App.3d at pp. 918-920, & fn. 5.) Nowhere does
Kennemur suggest that it is defense counsel's burden in an expert's deposition to elicit the
breadth of the expert's testimony where a plaintiff does not adequately give notice of the
substance of the experts' expected testimony in his or her expert designation. Contrary to
Metros's suggestion in his arguments, the adequacy of a party's expert designation is the
necessary predicate and basis of Kennemur's holding. Here, the trial court concluded Dr.
Gross's designation did not reasonably disclose the general substance of any opinions on
causation of Metros's orthopedic injuries, thus depriving Chowdhary the opportunity to
7 In Kennemur, supra, 133 Cal.App.3d 907, the expert had testified at his various deposition sessions that he had no opinion to offer on the previously undisclosed issue. (Id. at pp. 912-913.) The defendant therefore "was entitled to rely on [the expert's] disclaimer [that he would not testify on the issue] until such time as appellant disclosed that [the expert] had conducted a further investigation and had reached additional opinions in a new area of inquiry." (Id. at p. 920.) 43 prepare for the expert's cross-examination and possible rebuttal or surrebuttal of his
testimony. The court's ensuing exclusion of Dr. Gross's opinion was not an abuse of
discretion under Kennemur.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
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