Opinion
D074464
03-12-2020
HANNAH MARIA DENBRAVER, Plaintiff and Appellant, v. JEAN STENSTROM, Defendant and Respondent.
Dicks & Workman, Joseph G. Dicks and Linda Workman; Balaban & Spielberger, Daniel K. Balaban, Andrew J. Spielberger and Vanessa L. Loftus-Brewer, for Plaintiff and Appellant. Niddrie Addams Fuller Singh, John S. Addams; Law Offices of Keevil L. Markham and Scott J. Laqua, for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2016-00007767-CU-PA-NC) APPEAL from a judgment of the Superior Court of San Diego County, Earl H. Maas, III, Judge. Affirmed. Dicks & Workman, Joseph G. Dicks and Linda Workman; Balaban & Spielberger, Daniel K. Balaban, Andrew J. Spielberger and Vanessa L. Loftus-Brewer, for Plaintiff and Appellant. Niddrie Addams Fuller Singh, John S. Addams; Law Offices of Keevil L. Markham and Scott J. Laqua, for Defendant and Respondent.
I.
INTRODUCTION
While attempting to change lanes on the freeway on December 10, 2014, Jean Stenstrom (Stenstrom) hit the vehicle driven by Hannah Maria Denbraver (Denbraver). Then on August 5, 2015, Denbraver was rear-ended at a stop sign by a vehicle driven by Kylan Pownell (Pownell). Denbraver sued Stenstrom and Pownell for personal injury as a result of these automobile accidents.
Because Stenstrom's attorney Michael Anderson (Anderson) failed to contribute to the Trial Readiness Conference (TRC) report or to appear at the TRC, the court excluded from trial any exhibits, evidence, instructions, or witnesses not listed on the joint TRC report. However, it permitted Stenstrom to introduce evidence and witnesses that Pownell had included in the joint TRC report even though Denbraver had settled with Pownell sometime after the TRC.
The jury returned a unanimous verdict in favor of Stenstrom, concluding Stenstrom's negligence was not a substantial factor in causing harm to Denbraver.
Denbraver contends the trial court violated discovery sanction requirements by admitting the testimony of defense expert Eugene Vanderpol because Vanderpol had not been deposed. She further contends the court erred by admitting the testimony of defense expert Dr. Stephen Rothman because he did not draw a medical conclusion regarding causation to a reasonable probability. Finally, she contends the court erred by denying her motions for a partial directed verdict and judgment notwithstanding the verdict (JNOV).
We conclude the court did not abuse its discretion by admitting the testimony of either Vanderpol or Dr. Rothman, and there was substantial evidence to support the denial of Denbraver's motions for a partial directed verdict and JNOV. Accordingly, we will affirm.
II.
FACTUAL & PROCEDURAL BACKGROUND
On December 10, 2014, Stenstrom was driving north on Interstate 15 when she hit Denbraver's vehicle while attempting a lane change. After this incident, Denbraver suffered from memory issues, headaches, and seizures. On August 5, 2015, Pownell rear-ended Denbraver at a stop sign. Denbraver testified her conditions worsened after this accident. An MRI completed in December 2015 revealed a white spot in Denbraver's brain.
The vehicle was owned by Michael Stenstrom, who was dismissed from the suit for a waiver of costs.
The vehicle was owned by Nathaniel Pownell, who is not a party to this appeal.
In March 2016, Denbraver sued Stenstrom and Pownell, alleging the lesion on her brain was caused by one or both of the accidents.
A.
Trial Readiness Conference & Related Motion in Limine
To comply with discovery cut-off dates Denbraver's counsel unilaterally noticed depositions for the defense experts. After trial was continued, defense attorneys told plaintiff's counsel the experts were not available for the noticed dates. Denbraver's counsel agreed to reschedule the depositions, and about 10 days later, he reminded the defense attorneys he was waiting on their proposed deposition dates. It appears that Stenstrom's and Pownell's attorneys did not offer new dates for the expert depositions; the deposition dates were never reset, and the defense expert depositions did not occur.
On December 8, 2017, Stenstrom's trial counsel, Michael Anderson (Anderson), began a trial in a downtown department of the San Diego Superior Court. Final jury instructions were given at 4:30 p.m. on December 14, 2017, and the judge ordered trial counsel to be on a 20-minute standby to take the verdict.
The parties in the present case were scheduled for a pretrial conference on December 15, 2017. A timely joint TRC report was filed by Denbraver and Pownell on December 15, 2017. Stenstrom did not contribute to this report.
On December 15, 2017, Pownell's attorney Guy Beasecker (Beasecker) specially appeared for Anderson to inform the court of Anderson's situation. Anderson himself did not appear because he was taking the verdict in the other case. Beasecker reported to Anderson that the court would not accept Stenstrom's portion of the TRC late absent an ex parte appearance.
On December 26, 2017, after obtaining an ex parte hearing date, Anderson electronically filed his portion of the TRC report; it was dated December 15, 2017.
On January 5, 2018, Denbraver filed a motion in limine to exclude Stenstrom's evidence and witnesses for failure to comply with local rules regarding trial readiness conferences.
At the ex parte hearing on January 10, 2018, Anderson asked the trial court to accept his late contribution to the TRC report. The court declined to rule on the ex parte application because the pending motion in limine addressed the same topic.
The court heard arguments on motions in limine January 16, 2018. Anderson argued he should be relieved of any sanctions because they were discretionary, and his failure to comply with the trial readiness rules was a consequence of being in another department for a different trial on the day of the TRC. He further argued that his delay did not prejudice the plaintiff because he provided everything more than two weeks before trial.
The court noted that the documents had been electronically filed more than two weeks past their due date, when the court was dark over the holidays. It also noted that although Anderson's presence at the TRC was mandatory, Anderson did not make the judge in the other court aware of the conflict. Thus, the court's perspective was that Anderson was seeking relief from failure to be present at the TRC and failure to provide his portion of the report; plus, Anderson's ex parte application sought a trial continuance because his expert was not available and had never been deposed. The court described it as an "avalanching snowball of things on this case that weren't done." It explained to Anderson that it needed to hold parties accountable, and while any single item might not have been a big deal, it would be unfair not to require the parties to follow the rules, particularly because there were no extenuating circumstances to justify Anderson's failures. As a consequence of these failures, the court ruled that only items included in the joint TRC report would be admitted.
The expert report had also never been provided, even though it was due months before.
This ruling resulted in the exclusion of testimony by Dr. Jonathan Schleimer, the neurologist designated by both Stenstrom and Pownell who had examined Denbraver, because Pownell had inadvertently omitted Dr. Schleimer from the TRC report, and he had not been deposed.
B.
Plaintiff's Case
At trial, Denbraver testified that on December 10, 2014, she was driving when she was hit on the driver's side, which shifted her car and caused her head to strike the window. She did not lose consciousness or black out. The accident caused tire scuff marks on the driver's side of her car, which her father was able to buff out.
Denbraver did not seek medical care immediately following the accident. She drove home and went to work the following day. Five days after the accident, Denbraver went to a community clinic where she complained of neck and shoulder tightness. The clinic did not refer her next care provider, and she did not return to the clinic after the single visit. At the recommendation of a friend of her boss, Denbraver sought the care of a chiropractor who attended her church. He treated her neck, shoulders, and part of her back. Denbraver had been teaching and sparring Taekwondo before the accident, and she continued to teach at least within a couple weeks following the accident. She also began taking a Polynesian dance class during the spring semester after the accident with Stenstrom, and she joined a dance troupe.
Denbraver also testified she had a dull headache that never went away, her short-term memory seemed impacted, and she began experiencing seizures. However, she did not notice any bumps or anything abnormal while washing her hair during the week following the accident.
Immediately after she was rear-ended in August 2015 while stopped at a stop sign, she went to Palomar Medical Center for treatment. In December 2015, Denbraver underwent an MRI, which revealed a white spot or lesion on the left lobe of her brain.
Denbraver called several experts to testify on her behalf, but we focus our summary on the information relevant to the issues Denbraver has raised.
After filing the lawsuit, Denbraver was examined by neurologist Dr. Andrew Blumenfeld. Dr. Blumenfeld reported that Denbraver's neck had a full range of motion and some tenderness. His physical examination of her found her to be "normal" except for some slow movements due to back spasms. Although Dr. Blumenfeld's notes said she struck her head on the steering wheel during the second incident, Denbraver did not remember telling him that.
Biomechanicist Dr. Peter Francis testified that when a vehicle is struck, the occupant tends to be thrown toward the point of impact. Denbraver's head and shoulders would have pitched to the left toward the window glass. He opined that the injury to her brain corresponded with the impact of her head to the glass. He did not offer an opinion regarding the forces involved in the accident and had no accident reconstruction data. He did not do any calculations to determine actual forces imparted on Denbraver's head if it hit the window because that would have depended on accident reconstruction information, which he did not have. However, he said even minimal forces can cause brain injury.
Biomechanics applies the field of mechanical engineering to problems associated with human anatomy, including how mechanical situations can cause stresses on the body which have potential for causing damage to different parts of the body.
Neuroradiologist Dr. John Hesselink testified that the lesion on the temporal lobe was encephalomalacia and most likely traumatic encephalomalacia, or brain damage. He explained that the lesion was static; it did not change in size from scan to scan, which made it less likely to be a tumor and more likely to be a scar in the brain. He would expect a low-grade glioma that had led to symptoms to grow, but follow-up imaging showed it had not. He testified, "[T]he most likely possibility is a brain scar or encephalomalacia from trauma."
Dr. Hesselink defined encephalomalacia as a scar on the brain.
Dr. Hesselink used a positron emission tomography (PET) scan to determine that there was low metabolism within the temporal lobe in the area near the lesion, which he testified was also consistent with a scar because a tumor would likely have increased metabolism. He further testified that the timing of Denbraver's symptoms was consistent with a scar that formed after the accident of December 10, 2014, and he opined that it could have formed any time from birth to about two months before the MRI in December 2015.
C.
Defense Testimony
Stenstrom called neuroradiologist Dr. Stephen Rothman and accident reconstructionist and biomechanical expert Eugene Vanderpol to testify.
Stenstrom's attorney asked Dr. Rothman about the likelihood that the lesion was due to a shearing injury. Dr. Rothman testified that he did not know what the white spot was, and neither did the radiologist who simply listed possibilities. Dr. Rothman explained it could be a very benign tumor in the temporal lobe, a lesion called a hamartoma, an infection of a brain, though the passage of time probably excludes that, or a contusion of the brain, which is a local injury.
A shearing injury occurs when there is a rapid rotation of the head that creates fissures in the brain.
Dr. Rothman opined that injury was the least likely because there was no shrinkage of the brain, no enlargement of the ventricle, no instantaneous evidence of brain injury at the time, no neurological deficit, and a single lesion (rather than multiple), factors he said collectively supported a diagnosis of something other than injury. He also explained a shearing injury would show bleeding, but here there was none. He noted the spot is not near the outside portion of the skull, which makes it an unusual location for a contusion.
When asked, "So is it correct in summary, Doctor, that your opinion is you're smart enough to know what it isn't or not know what it is, but the least likely thing is a shearing injury because it has these telltale signs that are absent in the films?" Rothman answered, "Correct."
When pressed, he acknowledged he would not say Denbraver did not suffer a brain injury, only that it was unlikely that the imaging studies supported that diagnosis. He said he could not tell from the injury what the probability of the cause of the lesion was; only a pathologist and a neurosurgeon dealing with the lesion could do that.
Stenstrom also called Eugene Vanderpol to testify as her accident reconstructionist and biomechanical expert. He explained that he had completed biomechanics and accident reconstruction for both automobile accidents in this case. Vanderpol said there was no structural damage to Denbraver's vehicle, and the damage to Stenstrom's car was minimal, scuff and rub marks, small nicks on the right front wheel, and a cracked sidelight.
He also testified regarding the threshold of force required to achieve traumatic brain injury or concussion thresholds. He explained that in the accident between Stenstrom and Denbraver, there were three ways to quantify the threshold of force: rotational acceleration, head injury criteria number, and intracranial pressures. In calculating his results, he looked at Denbraver's physiological make-up, or her height and weight and position within the vehicle to determine the rotational acceleration. He then explained how, using this data, he arrived at the concussion threshold for the accident and compared it to the head injury criteria number, taken from vehicle safety standards. Finally, he looked at intracranial pressure generated as a function of acceleration. He compared the force of the event to a cough or sneeze, calling the impact a "rub," and explaining it was "an extremely incidental event."
At the close of trial, Denbraver filed a motion for a partial directed verdict, arguing there was uncontested evidence that she was injured due to the accident with Stenstrom; the court denied the motion.
D.
Verdict & Judgment
In response to the first question on the verdict form, "Was Jean Stenstrom's negligence a substantial factor in causing harm to Hannah Denbraver?" the jury unanimously responded, "no." The court entered judgment on June 7, 2018.
Denbraver subsequently filed a motion for judgment notwithstanding the verdict, arguing the evidence precluded a finding that Stenstrom's conduct caused no damage. Three days later, she filed a motion for new trial. The court denied both motions. Denbraver timely appealed.
III.
DISCUSSION
A.
The Trial Court Did Not Abuse Its Discretion by Permitting Testimony from Experts
Listed on the Joint Trial Readiness Conference Report
The parties dispute whether the court was obligated to exclude all defense expert testimony, other than for impeachment, due to defense counsel's failure to participate in the TRC report. Appellant argues Code of Civil Procedure section 2034.300 required the court to exclude all defense experts. Respondent maintains that the challenged decision was a discretionary evidentiary ruling, requiring us to consider the court's actions under an abuse of discretion standard. We agree with respondent.
Further section references are to the Code of Civil Procedure unless otherwise specified.
We review the trial court's admission or exclusion of expert testimony under the abuse of discretion standard. (Tesoro del Valle Master Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 639 (Tesoro del Valle); Great American Ins. Co. v. Gordon Trucking, Inc. (2008) 165 Cal.App.4th 445, 449 [evidentiary rulings reviewed under the abuse of discretion standard].) " ' "Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered." ' " (St. Paul Mercury Ins. Co. v. Frontier Pacific Ins. Co. (2003) 111 Cal.App.4th 1234, 1251, quoting Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
Appellant would like us to treat the trial court's decision here as an incomplete enforcement of a discovery sanction for unreasonable failure to designate the expert, submit the expert's declaration, produce the expert's writings, or make the expert available for deposition. (See § 2034.300.) Section 2034.310 permits the party to call an expert not previously designated by the party if the expert was designated by another party and subsequently deposed or if the expert is called to impeach expert witness testimony and will not contradict the opinion. (§ 2034.310.)
Denbraver argues that because Stenstrom had not designated Vanderpol and Denbraver had not deposed him, Vanderpol should not have been permitted to provide expert testimony for Stenstrom. She offers three cases applying this rule: Tesoro del Valle, Mizel v. City of Santa Monica (2001) 93 Cal.App.4th 1059, and Collins v. Navistar, Inc. (2013) 214 Cal.App.4th 1486. In each of these cases, the plaintiffs objected to testimony by experts who had not been designated. (Tesoro del Valle, supra, 200 Cal.App.4th at pp. 627, 640; Mizel, at pp. 1066-1067; Collins, at p. 1517.) Such is not the case here; Vanderpol had been designated as an expert in the case. As the court pointed out, the defendants had been "working in tandem" when they designated their experts, and although Pownell had not been involved in the first accident, Vanderpol had been properly designated for the purpose of discussing the first accident and included on the joint TRC report. The court did not issue the sanction because Stenstrom failed to properly designate experts, so the case law on which Denbraver relies is not helpful.
Even were this a matter of the propriety of discovery sanctions, "[d]iscovery sanctions must be tailored in order to remedy the offending party's discovery abuse, should not give the aggrieved party more than what it is entitled to, and should not be used to punish the offending party." (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1217.) The court retains discretion under the discovery statute because the statute contemplates whether the violating party acted unreasonably. (§ 2034.300.) There was no claim that Stenstrom failed to properly designate an accident reconstruction and biomechanical expert; the exclusion of the originally-designated expert's testimony was the product of trial readiness violations, not discovery violations.
Instead, Denbraver's motion in limine sought to exclude exhibits, witnesses, and jury instructions during trial for failure to participate in the trial readiness process based on San Diego Superior Court Local Rule 2.1.15. Local Rule 2.1.15 states that the failure to disclose and identify trial exhibits and witnesses as required in the TRC report may result in their exclusion or restriction, in the court's discretion.
At the hearing on the motion in limine, Stenstrom's attorney argued TRC-related sanctions were discretionary, and his failure to comply with the TRC rules did not prejudice Denbraver's case. The court's ruling similarly discussed Stenstrom's performance related to trial readiness, explaining that the failure to be present at the TRC and to provide his portion of the report contributed to the court's impression that there was an "avalanching snowball of things on this case that weren't done." The court's decision was consistent with its discretion under Local Rule 2.1.15; it excluded the information Stenstrom failed to provide in the joint TRC but allowed any information that had been included in the joint TRC filed with the court.
Denbraver next argues she was prejudiced by Vanderpol testifying because she did not depose him, because his testimony grossly exceeded the bounds of his expertise, and because his testimony was "blatantly false." She does not really explain how she was prejudiced, and we have concluded the court acted within its discretion to exclude only the experts and evidence not included on the joint TRC report. We would nonetheless affirm because there is no showing of prejudice. (Citizens for Open Government v. City of Lodi (2012) 205 Cal.App.4th 296, 308-310; see Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963 [appellate court would not furnish legal argument for how ruling was prejudicial].)
1. No Prejudice from Missing Deposition
There is no requirement to depose an opponent's experts. It is not entirely clear why Vanderpol was not deposed. Denbraver unilaterally noticed deposition dates for all the designated defense experts, but the parties subsequently agreed to seek mutually agreeable dates when the experts and attorneys were available. The produced emails indicate defense attorneys were to offer dates to the plaintiff. Nothing in the record indicates whether that ever happened, but the depositions were never taken. However, Denbraver does not explain how the outcome of the trial could have been different had she deposed Vanderpol before trial. (See F.P. v. Monier (2017) 3 Cal.5th 1099, 1107-1108 [to set aside verdict or grant a new trial, error must result in miscarriage of justice].) Additionally, the trial court considered whether depositions had been taken before making its ruling. We see no reason to question the court's determination here; there is no evidence of prejudice.
2. No Prejudice from Scope of Vanderpol's Testimony
Denbraver next argues Vanderpol's testimony of medical opinion was inappropriate. Vanderpol testified regarding his work as an accident reconstructionist and biomechanical engineer. Although Vanderpol's testimony about the amount of force and its likely impact on Denbraver was specific to Denbraver's accident and based on her physiological make-up, it was biomechanical and not medical testimony because it did not address Denbraver's symptoms, differentials, or diagnoses. This was not qualitatively different than the testimony offered by Denbraver's biomechanical expert, Dr. Francis, except that Vanderpol was also an accident reconstructionist and so had additional data on which to rely. Dr. Francis had opined that the injury to Denbraver's brain corresponded with the impact of her head to the glass. Vanderpol testified that the force of the accident would not have been strong enough to concuss Denbraver. This testimony was all within his area of expertise.
Denbraver's real complaint is that the jury believed Stenstrom's experts over her own, but conflicting expert testimony is an issue for the jury to sort through. (Williams v. Volkswagenwerk Aktiengesellschaft (1986) 180 Cal.App.3d 1244, 1265 (Williams) [credibility of expert witnesses is matter for jury]; CACI No. 221.) We do not see prejudice in allowing the jury making such a determination.
3. No Evidence of Prejudice from "False" Information
Denbraver next argues she was prejudiced by Vanderpol's testimony because it relied on crash test studies using human volunteers, and "this testimony was blatantly false, as evidenced by the January 2004 letter from Jon W. Kindschy of UC Riverside, which Vanderpol admitted was authentic."
Kindschy's letter requested Vanderpol use the title "guest speaker" on his curriculum vitae instead of "adjunct" or guest "lecturer" because Vanderpol had not been required to go through the formal approval process required for the latter titles. The letter also noted the request was not an indication that Vanderpol would be denied approval as an adjunct faculty member or guest lecturer in the future.
Even if the letter could have undercut Vanderpol's credibility, it does not demonstrate that Vanderpol lied about the accident reconstruction or about the information on which he based his testimony. Vanderpol's credibility was a determination for the jury to make (People v. Jones (1990) 51 Cal.3d 294, 314 [jury determines credibility of witness and truth or falsity of facts on which determination depends]), and it was within the jury's discretion to accept or reject it. (Coffey v. Shiomoto (2015) 60 Cal.4th 1198, 1218; cf. CACI No. 219 [instructing jury it is not required to accept expert's opinion].)
It is not clear to us from Denbraver's briefing what information from the crash tests she believes was false or what impact that would have on Vanderpol's testimony. The record citations direct us to testimony regarding Vanderpol's experience teaching, a video animation the court excluded, Vanderpol's methodology for quantifying concussion thresholds, and a reference to Denbraver's medical records, which the court struck.
B.
The Court Properly Admitted Testimony of Dr. Stephen Rothman
Denbraver contends the court should have stricken Dr. Rothman's testimony because it was not based on reasonable medical probability. Stenstrom argues the testimony was proper. She also argues the request to strike the testimony was forfeited by a failure to object and make the request before the close of testimony.
Evidence Code section 353 prevents the reversal of judgment due to erroneous admission of evidence unless there is a record of the objection or a motion to strike the evidence that was timely made, and which made clear the specific ground. (Evid. Code, § 353, subd. (a).) Thus, for Evidence Code section 353 to apply, the admission of evidence must have been erroneous. Here, it was not.
Denbraver argues that Dr. Rothman's testimony did not meet the "reasonable medical probability" standard set forth in Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396 (Jones) and Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304 (Espinosa). In Jones, neither medical expert testified to any medical probability that the birth control product ingested by the plaintiff caused or accelerated the development of the plaintiff's cancer. (Jones, at p. 401.) The trial court granted a nonsuit, and the appellate court explained, "[t]he law is well settled that in a personal injury cause of action[,] causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case." (Id. at p. 402.)
In Espinosa, the plaintiff called a pediatric neurologist to testify regarding causation between the hospital's delay in delivering a baby and that child's subsequent mental and motor abnormalities resulting from structural damages to the child's brain. (Espinosa, supra, 31 Cal.App.4th at p. 1310.) The neurologist testified regarding several factors that contributed to the brain damage, including the mother's ingestion of lithium during pregnancy, but he could not quantify the impact of the medication. (Id. at p. 1311.) The trial court granted a nonsuit because there was insufficient evidence that the hospital and doctor's breach was the cause of the child's injuries. (Id. at p. 1312.) The appellate court explained that "[i]n a medical malpractice action the element of causation is satisfied when the plaintiff produces sufficient evidence 'to allow the jury to infer that in the absence of the defendant's negligence, there was a reasonable medical probability the plaintiff would have obtained a better result. [Citations.]' [Citation.]" (Id. at pp. 1314-1315.) Although the neurologist could not "pin down the exact extent to which defendants' conduct contributed to the outcome," that information was not necessary to establish causation because he testified the events surrounding the labor and delivery were substantial factors and did cause brain damage. (Id. at pp. 1317-1318.)
Denbraver also cites Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108 (Jennings). Jennings explained that personal injury causation must be proven within a reasonable medical probability, and "the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not that the negligent act was a cause-in-fact of the plaintiff's injury." (Id. at p. 1118.)
It is generally the plaintiff's burden to prove causation, and the plaintiff bears the responsibility of doing so to a medical probability. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205-1206.) Jones, Espinosa, and Jennings apply this rule; in these cases, the appellate courts evaluated whether the plaintiffs met their burden of proof with expert testimony of medical probability that the negligent act was the cause of the injury. These cases are unhelpful because they do not hold that a defendant can only challenge a plaintiff's causation by identifying an alternative cause to a medical probability. Nor do they prohibit a defendant from attacking the quality of the plaintiff's expert's reasoning, which is what Dr. Rothman did here. He was not offering an alternative cause; his opinion was that no one could determine the cause of the lesion to a medical probability based on the records.
If a defendant has greater access to relevant information, he or she may be required to prove his or her negligence was not the cause of the injury. (See Harris v. Irish Truck Lines (1974) 11 Cal.3d 373, 377, 378 ["[W]hen a defendant is prima facie a wrongdoer and when evidence of the cause of an accident is more accessible to him than to the plaintiff -- California courts have frequently placed the burden on such defendant to demonstrate the actual cause of the accident"].) However, this case does not present such facts.
Denbraver offers one case dealing with a defendant's causation testimony, Chakalis v. Elevator Solutions, Inc. (2012) 205 Cal.App.4th 1557. In Chakalis, the defendant failed to provide expert testimony regarding the element of causation under a theory of comparative fault for purposes of Civil Code section 1431.2. (Chakalis, at p. 1557.) This case is also unhelpful because Stenstrom's defense did not involve a claim of comparative fault. Stenstrom merely challenged the quality of Denbraver's causation evidence and analysis. It was not improper for Dr. Rothman to dissect the underlying data and explain why it could not lead to the conclusion reached by Denbraver's experts. This testimony simply created a conflict in the evidence, leaving it to the jury to determine what it would believe. (Williams, supra, 180 Cal.App.3d at p. 1265.)
Having concluded there was no error in admitting Dr. Rothman's testimony, we need not evaluate the procedural approach taken by plaintiff's counsel to object at trial.
Were we to do so, we would conclude plaintiff preserved this claim for appeal by timely challenging the testimony at trial. Not only did she request it be stricken immediately upon its conclusion at a sidebar, but the parties briefed the request before the court ruled. Respondent's reliance on Rodriguez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626 would not persuade us otherwise. The objection in Rodriguez was that there was no evidence in the record to support the expert's foundational assumptions. (Id. at p. 659.) The appellate court explained that had the objection been timely made, there would have been an opportunity to correct the record and allow the party to lay sufficient foundation with the witness. (Id. at p. 660.) In contrast here, the objection to Dr. Rothman's testimony was unaffected by the timing of the objection because Denbraver's objection did not regard something Dr. Rothman could correct with additional testimony. He acknowledged that he could not identify the cause of the lesion to a medical probability, and the point of his testimony was that neither could Denbraver's experts.
C.
Substantial Evidence Supports the Trial Court's Denial of the Motions for Directed
Verdict and Judgment Notwithstanding the Verdict
Denbraver argues defense experts did not dispute her treating physician's testimony that neck and back pain were the direct result of the collision. Thus, she argues, the court should have entered a partial directed verdict or a JNOV. We conclude there is substantial evidence to support the jury's verdict, and we will affirm.
1. Additional Facts
During closing arguments, plaintiff's attorney told the jury its job was to contemplate what harm and loss was caused by the accident in December 2014. He told the jury there was no dispute that she was experiencing memory problems, speech problems, problems with her personality and mood, and having seizures. The only dispute was the likely cause of those problems. He argued the most likely cause of her injuries was hitting her head against the window during the accident with Stenstrom. He also reminded the jury that Denbraver went to a clinic five days after the accident complaining of a headache and pain in her neck, and that she continued to suffer from headaches and neck soreness. He asked the jury to consider past and future physical pain, mental suffering, loss of enjoyment of life, inconvenience, anxiety, humiliation, and emotional distress. Then he focused on her brain injury and explained how each of these types of damages was connected to the brain injury.
In his closing argument, defense counsel argued the accident was trivial. He directed the jury to consider the photographs of the vehicles following the accident. He noted that when Stenstrom asked Denbraver if she needed a medical professional, Denbraver said she did not. He challenged whether Denbraver really called anyone and said she hit her head. Defense counsel questioned the neurological symptoms and findings offered by Denbraver and her experts.
Defense counsel noted that the first time she went to a clinic, she had neck pain and a headache, and she went to a chiropractor to treat her neck. He told the jury: "[I]f you decide in some way that Ms. Stenstrom's accident was a substantial factor in some level of harm, not the brain injury that they claim, but perhaps a sore neck for several weeks or perhaps is responsible for taking those two weeks off Taekwondo before resuming Taekwondo, taking a month off from running before resuming running, those seem to be the only changes because she continued school, work, other activities, but if you feel that there is some substantial factor as to some minor injury in this, then I have to ask you what will you award in that amount? What should you award?"
2. Legal Principles
"Like a motion for nonsuit, a motion for a directed verdict is in the nature of a demurrer to the evidence. [Citations.] In determining such a motion, the trial court has no power to weigh the evidence, and may not consider the credibility of witnesses. It may not grant a directed verdict where there is any substantial conflict in the evidence." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 629.) "On appeal we apply the substantial evidence standard of review." (Eucasia Schools Worldwide, Inc. v. DW August Co. (2013) 218 Cal.App.4th 176, 181.) "Only if there was no substantial evidence in support of the verdict could it have been error for the trial court . . . to have denied [appellant's] motion for directed verdict. [Citation.]" (Howard, at p. 630.)
"The trial court's power to grant a motion for judgment notwithstanding the verdict is the same as its power to grant a directed verdict. (Code Civ. Proc., § 629.) 'A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.' " (Wolf v. Walt Disney Pictures & Television (2008) 162 Cal.App.4th 1107, 1138, quoting Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.) "On appeal from the denial of a motion for judgment notwithstanding the verdict, we determine whether there is any substantial evidence, contradicted or uncontradicted, supporting the jury's verdict." (Wolf, at p. 1138.) Uncontradicted testimony in the appellant's favor does not necessarily justify a JNOV because the trier of fact is free to reject a witness's testimony so long as doing so is not arbitrary. (Hicks v. Reis (1943) 21 Cal.2d 654, 659 [trier of facts contemplates credibility and the interest of the witness in outcome of case]; Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1204; Ortzman v. Van Der Waal (1952) 114 Cal.App.2d 167, 170-171 [not bound to accept expert opinion; can consider other pertinent facts].) Additionally, uncontradicted testimony rejected by the trier of fact " 'cannot be credited on appeal unless, in view of the whole record, it is clear, positive, and of such a nature that it cannot be rationally be disbelieved.' " (Adoption of Arthur M. (2007) 149 Cal.App.4th 704, 717; Beck Development, at p. 1204.)
Denbraver asserts the defendant failed to present any evidence to refute the "overwhelming body of evidence" that she suffered harm because defense expert Dr. Rothman did not dispute that she suffered neck and back injuries as a result of the collision. Denbraver's position is that because the defense expert did not testify that Denbraver did not experience neck or back injury, the only reasonable conclusion was that Denbraver suffered an injury for which she is entitled to damages.
However, a jury may refuse to award damages even when the defendant admits liability if the claim depends on subjective evidence and witness credibility. (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 453-454.) In Christ, the plaintiff testified regarding the injury she suffered as a result of an auto accident, but the defense presented impeachment evidence challenging those claims. (Id. at p. 454.) The court explained that the lack of objective evidence, like x-rays or MRIs, as well as evidence of her ability to drive home after the accident and her failure to request medical help at the scene all could have led the jury to conclude she did not suffer an injury. (Ibid.)
Similarly, in Nelson v. Black (1954) 43 Cal.2d 612, the jury declined to award damages because it did not believe the plaintiff suffered any actual injury. (Id. at p. 613.) There was conflicting testimony about the nature and extent of injury, and the Supreme Court explained the plaintiff holds the burden of proving an injury proximately resulted from negligence as well as the extent of damages. (Id. at pp. 613-614.) It explained that the jury could have disregarded the plaintiff's testimony because the plaintiff offered conflicting testimony. (Id. at p. 613.) The court affirmed the jury verdict for the defendant. (Id. at p. 614.)
Here, there was conflicting testimony about whether Denbraver suffered injury as a result of the accident with Stenstrom. Like the defendant in Christ, Denbraver did not seek medical care immediately following the accident. She told Stenstrom she did not need medical care, and she drove home from the accident independently. Although she went to a community clinic several days later, there is no evidence in the record she was referred for ongoing treatment. Denbraver sought out a chiropractor, but she did so on the advice of an acquaintance, not the clinic's medical professional. Moreover, although she took a brief break from Taekwondo after the accident, she resumed the activity following the accident and even participated in a Polynesian dance class and joined a dance troupe. These activities suggest that Denbraver did not suffer any significant physical injury as a result of the accident.
Additionally, the damage to Denbraver's vehicle was limited to tire scuff marks on the driver's side car, which her father was able to buff out. This tends to support Stenstrom's position that the accident was minor and did not cause injury to Denbraver. The minimal objective evidence of injury to Denbraver's neck and back after the first accident, based on Denbraver's testimony, coupled with the evidence that she engaged in activities indicative of her full range of motion could reasonably have led the jury to conclude she did not suffer injury as a result of the accident with Stenstrom.
Dr. Blumenfeld's testimony that Denbraver's neck had some tenderness and she moved slowly due to back spasms does not directly contradict the defense because this physical examination occurred after the second accident.
Additionally, although closing arguments focused heavily on conflicting evidence about Denbraver's neurological condition and whether the sideswipe accident with Stenstrom was the cause of the brain lesion, both attorneys also referenced neck and back pain as a potential injury resulting from the accident. Thus, the jury was alerted to the neck and back pain as a possible injury for which it could award damages. Nonetheless, the jury returned a verdict in Stenstrom's favor. This suggests the jury weighed the evidence and concluded Denbraver's witnesses were not credible.
Such a conclusion is not a leap; in response to the motion for a partial JNOV, the court explained that it did not find the plaintiff or her expert to be credible. Instead, the court found the defense testimony that the accident was minor and there was no injury at the scene to be credible. Accordingly, we will affirm.
DISPOSITION
The judgment is affirmed. Costs are awarded to respondent.
HUFFMAN, J. WE CONCUR: McCONNELL, P. J. AARON, J.