Opinion
F083583
07-31-2023
LAURENCE MITCHELL LITTLE et al., Plaintiffs and Respondents, v. DAVID SINGH et al., Defendants and Appellants.
Lewis Brisbois Bisgaard & Smith, John S. Lowenthal, Dana Alden Fox; Greines, Martin, Stein & Richland, Robert Olson, Joseph V. Bui, for Defendants and Appellants. Trial Lawyers for Justice, Nicholas C. Rowley, John Alan Kawai; Law Offices of Ralph B. Wegis, Ralph B. Wegis; The Ehrlich Law Firm, Jeffrey I. Ehrlich, for Plaintiffs and Respondents.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. BCV-17-101322. Thomas S. Clark, Judge.
Lewis Brisbois Bisgaard & Smith, John S. Lowenthal, Dana Alden Fox; Greines, Martin, Stein & Richland, Robert Olson, Joseph V. Bui, for Defendants and Appellants.
Trial Lawyers for Justice, Nicholas C. Rowley, John Alan Kawai; Law Offices of Ralph B. Wegis, Ralph B. Wegis; The Ehrlich Law Firm, Jeffrey I. Ehrlich, for Plaintiffs and Respondents.
OPINION
SMITH, J.
Plaintiffs Laurence Mitchell Little and Susan Little filed suit against defendants Davinder Singh and U.S. Freight Carrier LLC for damages arising from a traffic accident. Towards the end of trial, defendants sought to introduce previously undisclosed sub rosa surveillance video footage of Little engaged in everyday activities, such as shopping and cleaning his car, on grounds the video footage impeached plaintiffs' evidence. The trial court ultimately excluded the sub rosa video footage pursuant to Evidence Code section 352. The court determined any probative value of the surveillance video footage was substantially outweighed by its potential to mislead the jury, and by the undue consumption of time its admission would entail. Defendants appeal the trial court's exclusion of the sub rosa surveillance video footage under Evidence Code section 352. We affirm.
PROCEDURAL BACKGROUND
On June 13, 2017, by a complaint filed in the Kern County Superior Court, Plaintiffs Laurence Mitchell Little (Little) and Susan Little sued defendants Davinder Singh, Wabash National, and U.S. Freight Carrier LLC for damages arising from a vehicle collision. The first cause of action, negligence, was brought by Little against all defendants. The second cause of action, negligence per se, was brought by Little against Davinder Singh and U.S. Freight Carrier, LLC. The third cause of action, permissive use of motor vehicle, was brought by Little against Wabash National (Wabash National is not a party to the instant appeal). (Veh. Code, 17150 et seq.) The fourth cause of action, loss of consortium, was brought by Susan Little against all defendants.
U.S. Freight Carrier, LLC was initially identified in the complaint as Doe 1 but was subsequently substituted in as a named defendant, via amendment, in August 2017.
By the eve of trial, defendants had admitted liability (negligence was therefore not an issue in the case). Also, by the time of trial, plaintiffs had abandoned any claim for economic damages, such as for lost earnings (past or future) and medical bills (past or future).
A jury trial was conducted in September 2021, to determine noneconomic damages only. Near the end of trial, defendants sought to introduce sub rosa video surveillance footage depicting Little engaging in various everyday activities after the traffic accident. The trial court excluded the footage under Evidence Code section 352.
By special verdict, the jury awarded plaintiffs, collectively, $10 million in damages. Little was awarded $2 million in past noneconomic damages and $5 million in future noneconomic damages. Susan Little was awarded $1 million in past noneconomic damages and $2 million in future noneconomic damages.
Defendants appeal, challenging the trial court's exclusion of the sub rosa video surveillance footage they had sought to introduce.
FACTS
A. Plaintiffs' Case
The Accident
Brittany Davidson testified as a percipient witness to the accident underlying this case. Davidson testified she saw Little driving a pickup truck; the truck was stopped at a red light at an intersection in Bakersfield. Davidson was also stopped at the light, "about three cars back" from Little. Little was in the right turn lane. When the light turned green, Little started the turn. As he started the turn, a semitruck ("tractor and trailer") "blast[ed]" through a red light and crashed into Little's truck. Davidson testified: "[Little] had just started his turn, and the front-end of his vehicle was hit as he had started his turn. It was dragged, flipped around, and hit again by another set of tires, by the semi."
Davidson, a licensed respiratory care practitioner for an urgent care facility, was the first person to come to Little's aid at the scene. Little was bleeding profusely from a laceration to his head. He was becoming cyanotic. Davidson was asked what cyanotic meant. She responded: "It's the physical evidence that you can see of a lack of oxygen in the blood." When a person is cyanotic, his or her skin turns blue.
Davidson also observed that Little was "not ventilating at all," but rather was breathing "agonally." Agonal breathing occurs "when something is funny in the brain and the communication isn't quite right to the body to actually stimulate the diaphragm to take the breath in and only opens the mouth." Agonal breathing does not move air in or out of the lungs. In contrast, "if you think of the lungs as little balloons, ventilation means you have moved air into those little balloons and out of those little balloons." Davidson explained that when oxygen does not get into the lungs, it does not reach the blood and, in that situation, organs "start shutting down," and "other things" occur.
Davidson tried to assess "the cause of the respiratory arrest" that Little was experiencing. She tried to palpate his pulse, looked at his eyes, and attempted to "stimulate him" to "get some sort of response." His pulse was "thready, meaning it was not regular or strong." In a further effort, Davidson performed a "sternal rub" on Little, pressing her knuckles into his sternum. Sternal rubs are painful and, therefore, tend to elicit a response from conscious people. Little did not respond to the sternal rub. He was slumped over, and his arms were "flaccid." Davidson was assessing for cardiac arrest or brain injury because he had suffered a trauma. Davidson testified: "After I established that I couldn't really do anything for him in this situation where he's at physically, other than assess him and try to stimulate him, I turned around and called for help."
Others at the scene helped Davidson extricate Little from his truck and lay him flat on his back. Little then began "breathing." Davidson estimated that, prior to that, Little had not ventilated for at least three to five minutes.
Davidson testified Little became erratic and was confused. He was mumbling and "just was incoherent." He did not understand what was going on and could not "convey anything." He could not state what had happened, what day it was, or who the President was. However, responding paramedics recorded Little's Glasgow Coma score as 15, which score indicates no evidence of confusion or disorientation.
Little was admitted to the hospital that day and discharged early the next morning. Little was 65 years old at the time of the accident.
Dr. Richard Helvie
Dr. Richard Helvie, Little's treating neurologist, testified on behalf of the plaintiff's. Dr. Helvie saw Little as a patient nine times. Dr. Helvie first saw Little on September 5, 2017. Dr. Helvie testified that, based on the information he gathered about Little in conjunction with examining Little, he disagreed with the Glasgow Coma Scale record of 15 assessed for Little by the emergency responders at the scene of the accident. Dr. Helvie explained the ambulance records indicated Little was "confused," had "repetitive [questions]," and "some amnesia," all of which would "take the Glasgow Coma Scale right there to 13." Little was "disoriented, still not in a normal state" when he got to the hospital, given he was not able to tell anyone his name when he got there. Traumatic brain injury is often missed in the ER.
Dr. Helvie noted, with respect to the first visit: "My diagnosis was traumatic brain injury/concussion, hypoxic brain event concurrent with brain injury by history, postconcussion syndrome, post-traumatic stress disorder, AC separation of the left shoulder, and a left rib fracture."
Defense counsel, in his opening statement, noted that the defense's orthopedic expert had examined Little and reviewed his medical records, and the expert agreed that Little's "neck was injured" and "his shoulder was injured," and surgery would be warranted for these injuries. The defense's orthopedic expert did not ultimately testify at trial.
Dr. Helvie characterized Little's traumatic brain injury as "mild." Dr. Helvie explained: "Mild traumatic brain injury is, by definition, when someone has lost consciousness under 30 minutes - that's what we call a Glasgow Coma Scale of 13-15 - has a normal scan and has less than 24-hours period of amnesia." Little's counsel asked Dr. Helvie: "So if a patient has more than 24 hours of amnesia, what does that do the classification of traumatic brain injury?" Dr. Helvie answered: "Well, that technically would shift it from the mild to the moderate." Dr. Helvie noted he took issue with the general classification of brain injuries as "mild," "moderate," and "severe" because, for example, the label of a "mild traumatic brain injury is not an accurate indicator of [long term] prognosis [or outcome]." Little experienced a hypoxic event along with a traumatic brain injury, leading to a "more guarded" prognosis. Little's age also made him more vulnerable as older people's brains are less resilient.
Defense counsel clarified at trial: "This is a case where we have admitted liability. We're not disputing that Mr. Little sustained a mild traumatic brain injury. We're not disputing that it was a result of the accident."
Dr. Helvie performed a "general neurological exam" and a "mental status exam" on Little. Dr. Helvie testified: "The specific test I did and the results that I felt were pertinent on that first visit was - I did what's called a mini mental status exam. It's just a cognitive screening. And I found on that test that [Little] scored 26. He could remember one of three objects after four minutes. He didn't know the exact date and had trouble doing serial of sevens. [¶ ] So, in general, the cutoff in a mental status exam is 24. But if it's 25 to 30, there's evidence of cognitive impairment, that usually means additional testing."
Dr. Helvie did some additional testing. He noted: "Well, another test I did was Digit Span. That's where you give digits forwards - seven digits forwards and they have to repeat them backwards. That's a test of working memory and attention splitting. He could give seven digits forwards but only one backwards, which is not normal." Dr. Helvie added: "That indicates he has cognitive issues." Dr. Helvie continued: "It's very abnormal. Somebody should be able to repeat way more digits backwards than [that,] up to five or six."
Dr. Helvie described another test he did on Little. Dr. Helvie stated: "I have a standard verbal paragraph that I read to the patients with certain bullet points. There are 26 bullet points. Normal would be 15 recalled, and he only recalled 7 out of the 26. That shows problems, to me, of verbal memory."
Little was also slow in performing a test that required him to say the alphabet and numbers in order (e.g., A-1, B-2, C-3). Another test indicated Little had abnormal motor sequencing, which is an indication of brain injury. In addition, Little perseverated during an alternating patterns test, indicating he suffered from impaired cognitive flexibility on account of brain injury. Further, when asked to name animals, Little only came up with 10 animals; a "[n]ormal" person of his age and education would have been able to identify at least 15 or 16 animals. Little was also irritable and was isolating himself socially-"[h]e wasn't acting like the same person." These are symptoms of brain injury.
Dr. Helvie concluded Little had sustained a traumatic brain injury and suffered from residual impairments in the cognitive and emotional areas. Dr. Helvie found it significant that Little displayed numerous symptoms more than three months after he sustained the injury, as the more symptoms one has three months after the injury, the worse the prognosis.
When Dr. Helvie saw Little for the last time, on December 23, 2019, it was two and a half years after the accident. Little "was still having physical problems, cognitive problems, and emotional problems." "Physically, his headaches had become much more intense. He was having more pain involving the neck and shoulder. Because of the nerve damage in his neck, his arm, still the - certain muscles were paralyzed; they hadn't improved. He had sensitivity to noise. His ear was ringing all the time. That was preoccupying him. [¶ ] Those were his main - and he was having trouble sleeping. Those were his main physical complaints. Cognitively, there were problems with attention and memory, and speed of processing, and executive functioning." In addition, there were problems with his business, and Susan Little reported Little was experiencing emotional swings in that he used to be positive but now was negative. He was also irritable, impulsive, and verbally aggressive. Dr. Helvie further stated: "His wife reported episodes occurring a couple times a week where he would suddenly wake up, bolt out of bed, flex his arms up, and she says make a crowing noise as if he couldn't breathe." Dr. Helvie added: "I feel that to - that is related [in] my opinion to an intrusive thought of the accident."
Dr. Helvie opined that Little had suffered a diffuse axonal injury; "[d]iffuse axonal injury is the hallmark of brain injury-the hallmark neuropathological finding of brain injury." Little will live with this injury for the rest of his life. When asked why that was the case, Dr. Helvie responded: "Because he has his - he remains symptomatic two years post event when I saw him. That means he has a permanent injury. He's not going to recover. He would have recovered - two years post-injury, having the type of symptoms that he has, and he's post-concussion syndrome, the physical, the cognitive, the emotional issues are permanent. They're not - there's no significant recovery."
In evaluating Little at the December 23, 2019 visit, Dr. Helvie made 12 diagnoses, all of which were related to Little's motor vehicle accident. Dr. Helvie's diagnoses included: traumatic brain injury as a result of a motor vehicle accident on May 17, 2017 (permanent); hypoxic brain event, concurrent with traumatic brain injury, by history; persistent post-concussion syndrome (permanent); persistent neurocognitive disorder secondary to traumatic brain injury (permanent); persistent post-traumatic headaches ("chronic condition," "not going to get better"); chronic pain disorder as a result of a motor vehicle accident, head, neck, and left shoulder (he has "chronic pain with headaches, chronic neck pain, chronic left shoulder pain"--much of the pain was related to nerve damage to the left posterior shoulder); post-traumatic sleep disorder (permanent); chronic anxiety disorder with depression secondary to traumatic brain injury; personality change secondary to traumatic brain injury (permanent; "[t]he personality will not improve," "[t]he personality is as it is," "[h]e's a new person"); traumatic injury to the neck, cervical spine, associated with musculoskeletal supportive structures with delayed onset of cervical radiculopathy, C5, upper-left extremity, as a result of motor vehicle accident (radiculopathy refers to nerve damage); cold intolerance due to thermal dysregulation of the hypothalamus secondary to traumatic brain injury.
As to chronic pain disorder, Dr. Helvie testified: "Well, [Little] had a significant injury to his neck. I mean, the neck tethers the body to the head. So when the head or skull receives a big force, it's going to twist the neck, and it's going to injure the nerve roots coming out. And he already - this is going to cause exacerbation or worsening of, you know, age-related findings we've seen in the spine. And the trauma, per se, is going to cause more bone proliferation, basically. So it's going to exacerbate his premorbid changes that anybody his age would have."
Dr. Helvie also diagnosed Little with posttraumatic stress disorder (PTSD), noting that one did not need to remember the underlying traumatic event to have PTSD because the "emotional memories" are nevertheless "coded in the amygdala." Dr. Helvie testified: "And Mr. Little, within the first few months, had symptoms of PTSD - in my notes. And the last time I saw him, he still had them. [¶ ] And the symptoms are -would be intrusive or recurrent bad thoughts, avoidance of trauma-related stimuli, a hypervigilant state [whether] impulsive or irritable, and just a negative cognitive state where you isolate and have no energy to do anything." While there is no cure for PTSD, it waxes and wanes.
Dr. Helvie testified that tests conducted during the December 23, 2019 visit showed Little was experiencing "a significant breakdown of thinking" and cognitive decline, which issues would affect him socially and "accelerate his aging process." Since Little "had persistent physical, cognitive and emotional problems that were getting worse," Dr. Helvie ordered an MRI as it could reveal "evidence that would help [him] correlate [his] clinical findings." It turned out "there were several findings on the MRI scan." Dr. Helvie testified: "Reviewing the MRI strengthens my opinions in regards to this case." Dr. Helvie was asked to explain why that was the case. Dr. Helvie stated: "Because Mr. Little's MRI was very abnormal."
In sum, Little's "permanent brain injury was ... getting worse," leading Dr. Helvie to conclude Little had "TBI [traumatic brain injury] as a disease." Dr. Helvie noted that Little "definitely ha[d] declined" after showing some improvement while receiving intensive rehabilitative therapy and social support. Dr. Helvie noted there was no cure for Little's brain injury and opined that his "prognosis [was] not good." Asked about Little's long term prospects, Dr. Helvie said: "He will need more care in him being able to take care of himself. He will be more dependent on other people. He will not be able to manage his affairs. He'll have impaired quality of life. He will be developing progressive deficits."
As for Little's medical history prior to the accident, Dr. Helvie noted: "The medical history was that he was on no medication and [had] never been hospitalized. And the history revealed he had no type of functional impairment." In short, Little had no comorbidities other than the issues caused by the collision.
Dr. Bradley Jabour
Dr. Bradley Jabour, a neuroradiologist, testified on behalf of the plaintiff's. Dr. Jabour was a treating radiologist for Little in that he read the neuroimaging studies ordered for Little by Dr. Helvie. Dr. Jabour was asked to specify the neuroimaging studies he looked at in connection with Little's brain injury. Dr. Jabour stated: "So there were three studies. One was an MR[I] of the brain. We call it a morphologic MRI of the brain. The second one was a series of - we call it an advanced imaging study, an advanced imaging MRI study. And then the third one, which could be part of the second one, was a volumetric analysis of brain structures." Jabour noted: "[Little] got the advanced imaging studies, which are not normally done in a screening, regular outpatient imaging center, more detailed studies."
Dr. Jabour was asked about his findings and opinions. Dr. Jabour testified: "So on the standard morphologic study, Mr. Little had a number of abnormal findings." With respect to this study, Dr. Jabour testified: "The opinions I had were that there was - firstly, there was cerebral atrophy, or volume loss in the brain." Dr. Jabour said that second, there were areas of gliosis or scarring in the right frontal lobe. The right frontal lobe is "a critical, most important part of the brain, because this is the executive area where you think, plan, control your emotions, strategize in your life," and is "called the executive functioning brain." The right frontal lobe is located in the part of the brain above one's right eyebrow. Dr. Jabour added: "Similarly, in the [left] occipital lobe [at the rear of the brain], which [part] is involved with visual - various visual functions, including seeing but also in orchestrating and understanding what the visual image is in the brain, there was an area of gliosis." Dr. Jabour summed up: "[T]he area of gliosis is in the frontal lobe on the right and then on the exact diagonally opposite area on the left in the occipital lobe."
Dr. Jabour testified that '[g]liosis is the neurologic term for scar tissue."
The advanced imaging studies showed injuries in the same locations at the morphologic MRI study. Specifically, Dr. Jabour testified: "And then on the advanced studies, there was an area of diminished metabolism in the right frontal lobe and the left occipital lobe. And on the volumetric study, there were a number of areas that had lost volume, had shrunk almost to two standard deviations below normal in the frontal, temporal, and parietal areas."
Dr. Jabour opined the gliosis at the front and back of Little's brain was caused by a coup-contrecoup injury. He explained: "[T]he coup-contrecoup will go through a transformation from swelling, hemorrhage, to later on - it could have any of the three, swelling, hemorrhage, or external shear injury, or a combination of all three early on. And then later on, you're left with the gliosis and shrinkage." Dr. Jabour opined that gliosis has many potential causes besides traumatic brain injury. However, in this instance, given the "spectrum of other findings" in Little's imaging, the gliosis was most likely "secondary to traumatic brain injury"; indeed, he did not consider any other potential cause "even remotely likely."
Dr. Jabour explained how a coup-contrecoup injury occurs: "So let's presume that some sort of trauma has occurred when [the] head was moving and came [a]cross something solid so that the moving skull suddenly stopped. And inside the skull, the brain continues moving and slams against the solid bone. That's the coup. [¶ ] And then very often there's a second force from Newton's physics from many years ago and is usually a countervailing second movement, which will also stop when the skull is -comes across something immovable, that the brain again will continue moving at the velocity, the speed, with which it was moving initially. And then you'll get a bruise both somewhere in front and somewhere in the back, some type of hematoma or external shear injury, or basically a force smashing the brain in front and back."
With respect to an image of Little's right frontal lobe shown to the jury, Dr. Jabour testified: "So this is the area above the right eye, frontal lobe. This white ribbon of tissue is the gray matter. The black area all the way through here is the white matter. And you can see on the other side there's [an] area of white within this back tissue. That white represents a scar, a damage to a big tract of white matter fibers, bundles of wires that are running through the brain, connecting various parts of the brain. [¶ ] So in this area, you've got torn fibers, and that's what that white area presents, the attempted healing of those torn fibers from some previous insult." Dr. Jabour also decoded for the jury images of Little's left occipital lobe which showed "two separate, discreet areas" of gliosis "in the white matter tracts exactly opposite [to] where the other injury was."
Dr. Jabour testified that other imaging studies showed "marked diminished [blood] flow in the right frontal and in the occipital lobes." He explained this was not coincidental: "So when you tear the fibers - let's say you broke this, and this was an electrical cable conducting information from my head to hand, and you tore this, and therefore there was no way to communicate between these two areas, this area would not require as much blood flow as other areas." With respect to functional deficits potentially experienced by Little as a result of these injuries, Dr. Jabour noted the deficits could be more widespread rather than strictly correlated to the areas of damage in the right frontal and left occipital lobes. Specifically, Dr. Jabour testified: "[The deficits] could be much more than those two areas, because even though you've seen scarring in only one or two areas, the machine could be damaged in other areas, as well, when you have that degree of trauma."
Dr. Jabour next addressed the issue of brain shrinkage from trauma: "When you damage the brain, it shrinks more to look like a raisin than a grape. So you've lost volume." With respect to the frontal lobes, Little "was in a 22nd percentile," which means that "78 percent of people the same age, same gender have a bigger brain in that area where we saw the gliosis." When the brain shrinks, there are big spaces between the folds in the brain, and these spaces were present in images of Little's frontal lobe. One of the studies done on Little's brain measured various areas on the "frontal lobes, superior frontal, middle frontal." Dr. Jabour testified: "This patient is in the 7th percentile in the superior frontal lobe on the left, and the 12th percentile on the right for a total 7th percentile. Now, two standard deviations from the normal is around the 6th or 5th percentile, meaning that 90 - in this patient, 93 percent of people his age have a bigger brain in this very important region of the brain, the frontal lobe." Dr. Jabour noted this was an abnormal finding. He explained: "[I]t's the interplay and the pattern of volume loss, gliosis, and function that is all wrong in the area where we saw that gliosis in the frontal lobe."
Little's brain also exhibited a cavum septum pellucidum. Dr. Jabour explained: "[Cavum septum pellucidum is] a Latin word for a cave between the septi, the little membranes that run right down the middle of your brain, separating one ventricle from another. There is a septum on this side and on the left side, and they're usually stuck together. [¶ ] If you shake the brain, the septi separate and you get a cave, a cave meaning a space between them. And that's a finding seen in almost all mixed martial artists, football players, professional football players, and boxers." A finding of cavum septum pellucidum "is a supportive piece of evidence that there has been significant trauma" and is consistent with traumatic brain injury.
Mitch Carter (Little's Grandson)
Mitch Carter, 29, the Littles' grandson, testified for the plaintiffs. Carter grew up with Little and saw him "[e]very single day." Carter testified: "He taught me how to fish; he taught me how to ride a bike. He taught me how to do all these things, and protected and sheltered me." They would go fishing and camping very often, more than once a month. Little was kind and respectful and had every situation under control.
Growing up, Carter called Little his Superman, because there was a calming effect when he would take control. Things changed after the accident. Carter testified: "Now, after that date, he wasn't in control of the situation anymore. Now, what I mean by that is if we - if there - he was filled with anxiety. He was no longer Superman. He was Clark Kent. He was - it was different because he wasn't the man in charge. He wasn't -he has anxiety. It was - he was - anxiety."
Carter said Little no longer went to the mountains with the family, despite Carter's entreaties. Carter testified: "Because he's scared that if something were to happen, he wouldn't be able to save me; he wouldn't be able to save my nieces. He wouldn't be able to take control and protect us if something were to happen. [¶ ] So he doesn't - he doesn't take us places that aren't his home, our home." Carter described Little as being "timid" and "full of anxiousness." Carter said he had never seen Little cry before the crash; since the accident he had seen Little cry "multiple times" and "each time, it's just as impactful." Carter added: "He full-on breaks down. It's not water - like, teary-eyed. He's crying. And sometimes it's just a little bit, like, a little bit, but tears are falling down his face and - yes. He's crying." When he cries, it does not match up to what is going on in the room.
Little was different before the accident. Carter testified: "So before - on my 21st birthday, as an example, this is something - on my 21st birthday, we had a big party for my 21st birthday. And when we all got together, my grandpa - my Papa - came up and started wrestling with me. And I don't mean, like, play wrestling. I mean he took me down to the ground, and then he looked at me, and he says, it doesn't matter how old you get, I will still take you down." Carter added: "At the time, he - I was 250 pounds. And he took me down faster than - if he got [his] hands on you, you were down." This was just something they did; it was playful.
Carter described a disconcerting incident that showed how much Little's personality had changed since the accident. "So I got married in July, on July 10th, 2021. And my grandpa came and was hanging out with us - when I say us, like, together - and I was driving him, showing him around my town. And when we were doing that, the way that I was driving was irritating him. All right? And I don't mean like - it was biting. [¶ ] So I'm sitting there, and he's like, 'Do this. Do this. Do this.' [¶ ] Like, barking at me in a tone that is not conducive - it's not like anything he's ever done to me.... But the way that he spoke to me was biting, where he - it - there wasn't - you didn't feel that initial - he didn't have the softness that you have in the eyes like when we were playing or when we're dealing with stuff. And we were just out for a drive. It was the day before my wedding. We were - it was a day of happiness." Carter also found a change in Little when, at Carter's wedding, Little "would go to his car and listen to music" by himself. Carter and other family members were also shocked when, after the collision, Little started playing the Nintendo Wii. Little did not isolate himself before the collision.
Carter noted that since the accident, Little had been treating Susan Little uncharacteristically harshly and taking his frustration out on her. Carter described an incident when the family went out to a restaurant for dinner. Carter said: "We went to Kanpai, which is a Japanese restaurant here in Bakersfield, and we're having dinner in front of this Teppanyaki place. So it's loud. [¶ ] ... [¶ ] [T]here was a miscommunication between what [my grandfather] was ordering from the menu to the waiter and the waitress, and he got mad at my Nonni for not correcting the waitress because he couldn't hear, but she should have known what he was going to get." This was not how Little used to be. He had been the type of person who would tell Carter after a baseball game how well he had done, even though Carter had struck out three times. Little still loved his family and tried to do his best.
Allyson Jones (Little's Granddaughter)
Allyson Jones, the Littles' granddaughter, testified for the plaintiffs. Jones was Mitch Carter's sister. Jones grew up in Bakersfield but moved to Texas in 2018, when she was 27. She returned to Bakersfield frequently. Since she was a child, Jones had been extremely close to Little, her Papa. He was a very caring and involved grandparent throughout her childhood. He taught her how to fish and how to ride horses and took her all over the mountains and wilderness. "[H]e was MacGyver. If you - there was any type of problem, you would call Papa. If you needed something to be fixed, if you forgot your house key, if you forgot anything, you would call Papa."
Before the accident, Little was extremely energetic and physically active. Jones testified: "So in 2017 - I don't know if anybody knows this, but Papa was an amazing wrestler when he was younger, and one of his friends had actually contacted him or mentioned something to him about an older league of men getting together and wrestling. And so he had actually started to just get into the works of, maybe I'll do this, and started exercising. He was running up and down the street." His job was also extremely physically demanding. "He climbed up and down ladders all day long, was up in attics, and went - in Bakersfield, it's hot. And it's 100 degrees. Sometimes in the summer, 110. And he did that every day." He was extremely fit and had a six-pack. He was in very good health. He was positive and "in a great emotional state." He was also socially adept and was "pretty much the life of the party." He did not have thinking or communication impairments.
After the accident, Jones saw Little on a gurney in a hospital hallway. Jones testified: "His eyes just looked at me, and he looked terrified. He didn't speak. He just looked terrified and the most helpless I've ever seen him look." Allyson added: "And he was completely dazed, and he just kept looking around." He did not have a shirt and was freezing; he had freshly drying blood on him. His hospital wristband did not have his name on it; it just said, "Papa." His birthday was also incorrectly listed.
Over the next year, Jones noted Little was mentally different (more agitated and more forgetful); he was also very different emotionally. Physically, he was different too; he looked very thin, was frail, said he was in pain, and was not as active as before. His hearing was affected, and he had trouble watching TV and could not be part of the social aspect of the family the same way as before. He had not been out hiking with the family as far as Jones was aware. Nor had he been out on his quads as far as Jones was aware.
Shortly before trial, the Littles visited Jones in Texas, Little seemed worse and did not do well during the trip; he was not particularly active, had trouble sleeping at night, and had bad nightmares. At times, he would wake up in the middle of the night and be sweaty and scared, and then he could not go back to sleep. He had headaches, and his hearing was not good, so he spent time by himself. One could also see at times that he was in pain. As for his personality, Jones testified: "He's very moody. He's not the nicest person to my Nonni anymore." He looked weak and fragile to Jones. He would try to help Jones and would offer to bring in the groceries, but Jones would say," 'No, Papa, I got it.'" Little was taking Gabapentin and occasionally he would have to take a pill for anxiety, to calm him down. He also had problems with temperature regulation and was usually cold, although it was hot in Texas; he could not sleep if the fan was on. One evening, they had a family gathering, but it only made Little grumpy and angry at his wife. He was also forgetful and easily flustered. He did not go to a sporting event, ball game, or movie during the trip.
Jones described an incident that occurred while Little was visiting her in Texas: She testified: "[T]here was a time when he had a really, really bad nightmare. And he ended up in the shower, and he was crying. We heard a loud thump on the ground, and we assumed he had fallen in the shower. And he had locked the door, and we could hear him through the door, crying." Eventually, Susan Little was able to convince him to open the bathroom door and allow her in. She tried to calm him down, but he was sobbing and trying to catch his breath. She kept saying," 'Larry, it's okay.' "
Susan Little
Susan Little, who was known to friends and family as Shelly, testified on behalf of Little and herself. Susan's grandchildren and great-grandchildren called her Nonni. Susan and Little met as highschoolers when she was 13 and he was 15. Susan described Little when he was in high school: "He was an athlete, very, very dedicated wrestler. Just high energy. Everything was go." He maintained those traits throughout his life, up until the accident. Susan testified about Little's trajectory as an adult: "He was - he got more intense, better. He was - he grew into a wonderful husband and father and grandfather. He was good. He was great."
We refer to Susan Little by her first name for purposes of clarity only; no disrespect is intended.
As for Little's health over all those years, she added: "Well, very healthy, very athletic. I mean he had a six-pack up until two years ago. Very, very athletic, very strong. He's not a huge man. He's kind of small in stature, but I'm telling you, the man was dynamite. Always has been." Little's counsel asked Susan: "Did he literally have a six-pack? His abs sixed-packed at the - in his sixties before he was hurt?" Susan responded: "Absolutely." The jury was shown photographs of Little from earlier times. Susan confirmed that Little was training to enter competitive wrestling when he was injured in the collision, specifically the Senior Olympics in wrestling.
Little took his children hiking, hunting, fishing, and camping. Outdoor activities were "super important" to the Littles' family life. The jury was shown photographs of the family fishing, et cetera. Little was good with "[c]hildren, dogs, and old people."
The Littles had a "burglar alarm business" for over 40 years, and Little was running and operating the business right up to the time of the collision. Little inspected homes, planned alarm systems for homes, installed alarms, serviced alarms, and repaired alarms. Susan testified: "We just kind of figured that he'd work until he was, you know, probably about 75 and then we'd do something else." After he was injured, Little struggled with "the physical aspect of it and even some of the mental aspect." The Littles closed the business.
Susan was asked whether Little "[s]till got that six-pack?" She responded: "Not so much. You know. His job was very physical, and he was very physical with - you know, played golf. He was just very physical about everything that he did." In addition to not working, he did not hike anymore; he did not do overnight camping anymore, just day trips; he did not fish or hunt anymore ("[c]an't hold the gun like - you know, it would be very difficult for him"); he got rid of his off-road quad; he did not ride horses anymore; and he did not run or take long walks anymore. In the past, Susan felt safe with Little, but she did not feel safe going overnight into the wilderness with him now. For one thing, his hearing had been negatively affected and he would not hear the sounds that come at night.
Little could and did drive, although he was "probably a much more cautious driver now than he was before the crash." He would get "very irritated" with Susan when she fumbled with using navigation on her phone. Little did not do all the driving; Susan drove half the time. Little, however, liked the freedom he experienced by driving.
Susan testified that Little could also still do day-to-day tasks, albeit in a more limited way. She testified: "Well, he has a shoulder injury that, you know, the use of his left arm is limited. I don't like to say he can't do anything because he can do anything he puts his mind to, but he's limited. He can't do things the same way he did before, timewise, strength-wise. Just things are different." However, he continued to do little things around the house and yard. As far as exercise is concerned, he would stretch. Susan was specifically asked: "In terms of being out and about in the world, shopping, driving, walking, you know, those sorts of things, can your husband Larry Little do all of those things today?" Susan responded unequivocally: "Yes." She was further asked: "And does he do them differently today?" Susan answered: "Every aspect of our life is different since the crash."
Susan was asked about Little's emotional status after the accident. She responded: "Larry has always been the strong, positive - very - just very strong and very positive. He now is - he's very emotional, and he doesn't understand why these things happened to him, very anxiety ridden. Like, in the mornings, I never know what Larry I'm going to get. Sometimes he wakes up and he's very emotional. And sometimes it's very - you know, he's very - anxiety. He paces like a wild animal would pace, like a caged tiger or something. He paces." Little improved when he was in rehabilitative therapy-Susan saw "glimpses of the old Larry"-but the improvement did not last.
Little's counsel asked how Little would soothe himself when in an agitated state. Susan testified: "Well, he usually tries to do it with a hot shower. He takes a minimum of five showers a day, hot showers. And he's in there, you know, 15 minutes. And then when he comes out, if he is still real amped up, sometimes we have to try a Xanax. He doesn't like to take them, but sometimes he gets so - I don't even - he doesn't understand, you know. Sometimes what I'll do is [have] him lay down on the bed and then I can rub his face and neck, his head, and I can, you know, talk to him and try to soothe him. Sometimes that works, not always, but it's something that we probably do on a daily basis." In terms of his thinking, he was "[n]ot as sharp as he was before" and "kind of gets confused really easy." "He's not confident like he always has been."
Little, who had always been "[e]xtremely" affectionate with Susan, came home to her after the crash "a stranger." Susan's counsel asked her: "What do you mean a stranger?" Susan responded: "Well, there's - his personality is different. He's not the same person that he was before the crash. His personality has changed. He's - the care, the compassion, the love, the energy [is not the same]." Now, "he can cut you very deep with words and tone." Susan observed: "He uses a voice with me now that I didn't even know he had. I mean, I was his princess." The Littles had recently endured the loss of a daughter, but Little was not able to care for Susan during that difficult time. For most of their 53 years together, Susan would look to her husband during difficult times; now she holds him up.
Susan testified Little had a "very difficult time" during their trip to Texas. She said: "He was very emotional. He began having horrible nightmares every night. And he just finally said I'm not going to go to sleep anymore, and he'd try to stay up. He was afraid." He slept better once they got home, but his sleep has been troubled since the crash. He always gets up and showers during the night. Susan worries about his state of mind, and would be up too.
Laurence Little
Little testified on behalf of himself and Susan Little. He noted he still drove and would not like to lose his driving privileges. He said: "That's my - that's my independence, I guess. I wouldn't want to lose that. I still - I still can drive." Little was asked whether he could still do the things he did before. He answered: "I can do a lot of things. I have difficulties in a lot of stuff, but I - I still can manage." Little said he could do yard work and had "done minor yard work." He was asked whether he tried to do jobs around the house. He responded: "Yeah. I can - I've been experienced in a lot of stuff that I can do around the house. I can still do things around the house."
Little was asked whether he still did things outside the house as well, lived his life, and used his body. Little responded affirmatively, and repeated, "I can do all that." He was specifically asked whether he did things differently. He answered: "I have difficulties doing most of the things that I did. I was very active outdoors, but I can still manage. I can, you know, I have difficulty doing a lot of things, but I can still do small things like that." Little was asked were he to be surveilled and videotaped, would he be seen doing some of the same things as he did before. Little unequivocally responded, "Yes." Asked about any difference between how he did things formerly and presently, Little said he had to "do things a lot slower now." While Little could wrestle his grandsons to the floor before, he would not want to grab his grandsons now. Little was a wrestling star in high school and wrestled in college as well. He had a good record and won many championships.
Little acknowledged that since the accident, he can be "awful" to his wife, "verbally." When asked why, he said: "I have no idea. I just spurt it out, and I'm guilty when I do it." He said that since the accident, he did not have the same self-control, patience, thinking, and memory. While his rehabilitative therapy helped, once it ended, he "reverted back to a confused state." He noted: "I'm lucky I got people around helping me." As for other problems since the accident, Little noted: "I have a neck and shoulder injury that's constant. I have a headache, constant. My hearing is drowned out by a loud noise I have in my left ear. I don't hear very well." Little said that although he was in the courtroom for his attorney's opening statement, he did not hear any of it. Little also said: "My sleep is not good. I had dreams or I'm - I'll have anxiety that just wakes me up out of a sound sleep. I won't be able to breathe. I'm trying to get air. My sleep is not good." Little said his shoulder blade was "a little bit abnormal." Little's counsel pointed out a bump on Little's left shoulder. Little said the strength in his left shoulder was different than his right. Counsel pointed out Little was holding up his left arm, to which Little replied, "My left arm tries to come up a lot." Little was not sure why that would happen.
Little had good days and bad days, and usually did better in the mornings. When asked if he could "go out and do things in the community by yourself," Little replied, "Yes." Little said he could do the things he did before, just not "very well" because he had physical issues and "problems with completing stuff."
Little testified he had "no recollection of impact at all," however he "vaguely remember[ed] a moment in the ambulance." Little testified: "I remember just for a moment, as the ambulance was pulling away, I remember sitting up or looking out the back door and seeing the wreckage of some - for a moment. That's really all I seen was the wreckage. And then I was - I don't really have any memory of very much until the next morning when I left." He did not remember much about the next morning either as he was in extreme pain and was "moaning and groaning on every breath."
Little's issues from the accident were getting worse over time. Little had not resumed intensive rehabilitative therapy because he could not afford it.
B. Defendants' Case
Dr. Harvey Edmonds
Dr. Harvey Edmonds, a neurologist, testified for the defense. Dr. Edmonds took Little's medical history, examined him (he conducted both a physical examination and mental status examination), and reviewed his medical records.
Dr. Edmonds diagnosed Little with a mild traumatic brain injury. He defined a mild traumatic brain injury as follows: "Well, that would be if someone were walking across a cement patio, tripped and fell, hit their head, was briefly unconscious, and then came to and were somewhat groggy." Dr. Edmonds opined that mild traumatic brain injuries are not progressive (they are "nonprogressive on the basis of the injury"), and that people return to a relatively normal state, for the most part, within a couple months after injury. However, while a mild traumatic brain injury is not progressive, some people do not ever fully recover. Usually, a person who suffers a mild traumatic brain injury does not experience cognitive dysfunction for the rest of their life.
Little has had over 100 medical appointments since the collision. Defendants' counsel asked Dr. Edmonds: "And in Mr. Little's case, to what do you attribute the residual symptoms and complaints that he has?" Dr. Edmonds responded: "Well, he has an anxiety disorder. There is some depression. And he has been told repeatedly by Dr. Helvie and others that he is brain injured." Anxiety and depression lead to disordered sleep with insomnia, which in turn reduces mental sharpness. "So [the mind] isn't as sharp because of the anxiety and depression, not because of a brain injury." Anxiety and depression can be treated with antianxiety and antidepressant medication.
Dr. Edmonds did not believe Little had posttraumatic stress disorder because he did not remember the accident. In addition, Dr. Edmonds did not believe Little had suffered hypoxic brain damage because his Glasgow Coma score recorded by the paramedics was 15, which indicates "no evidence of confusion or disorientation."
Dr. Edmonds made additional diagnostic findings with respect to Little. Dr. Edmonds documented the following diagnostic impression:" 'Status post minor concussive head injury with subjective PCS [post-concussive syndrome] symptoms out of proportion to objective findings, secondary to spectatoring, an iatrogenic process, secondary to illness behavior, related to the medicalization of the patient's injury, exacerbated by his obsessive-compulsive personality traits, and anxiety associated rumination.'" Spectatoring occurs when a patient is "told repeatedly that they're brain injured and [they] begin to examine everything that happens to them within the context of a brain injury." Another diagnostic impression documented by Dr. Edmonds was" '[a]djustment disorder with anxious features, potentiated by the medicalization of his concussion and situational factors superimposed upon the patient's obsessive-compulsive traits.'" Dr. Edmonds concluded: "I believe the patient had symptoms of postconcussion syndrome but not related to brain injury, instead related to anxiety, depression, spectating, being involved in a lawsuit, all of those things."
Dr. Edmonds acknowledged it can be hard to know what is going on in cases of mild traumatic brain injury based solely on one or two visits with a patient. Dr. Edmonds conceded that a person who has suffered a traumatic brain injury can end up with ringing in the ears, short-term memory problems, personality changes, social problems, and executive functioning problems.
Dr. Howard Glidden
Dr. Howard Glidden, Ph.D., a neuropsychologist, testified for the defense. Dr. Glidden administered a battery of tests to Little on August 5, 2019.
Dr. Glidden opined that Little had sustained a "mild traumatic brain injury and/or concussion." A mild traumatic brain injury can be complicated or uncomplicated, with the former involving lesioning and/or bleeding in the brain and focal neurologic signs (e.g., drooping eyelid). Little's injury was uncomplicated. The prognosis and likelihood of improvement with such injuries is "[excellent." However, not everyone with uncomplicated mild traumatic brain injury recovers fully.
Dr. Glidden opined that Little's injury had fully resolved by August 5, 2019. Additionally, Dr. Glidden concluded Little did not have posttraumatic stress disorder as of August 5, 2019. Dr. Glidden's testing on Little supported his opinions. Dr. Glidden concluded: "[What] the testing showed was areas of strength, areas of weakness that don't correlate or collate into what's predicted for somebody recovering from mild TBI or any other neurologic disorder for that matter."
Dr. Glidden diagnosed Little with "[a]djustment disorder with anxiety." Dr. Glidden explained: "An adjustment disorder with anxiety is a diagnosis that's made when there is no evidence of a preexisting anxiety disorder, by virtue of records or treatment, [and] an event occurred and the person is dealing with the aftereffects of that event." Dr. Glidden noted there was no evidence that Little had anxiety or an anxietytype disorder before his accident. Dr. Glidden diagnosed Little with adjustment disorder with anxiety because Little no longer had a brain injury but had developed anxiety on account of being repeatedly "told by experts that he has brain damage and requires continued treatment for brain damage."
Little's adjustment disorder with anxiety was treatable through medication, therapy based on proper prognostication so he learns his brain injury was time-limited, relaxation training, and education to the effect that he was "predicted to improve, not devolve." Dr. Glidden cautioned: "It's been a long time that he's heard something, and as we all know, changing opinions is not an easy thing, or changing, you know, viewpoints of, you know, I'm injured, I'm going to be injured, I'm staying injured. [¶ ] And if I believe that to be the case, it's hard to convince me otherwise." Defendants' counsel asked Dr. Glidden: "If [Little] follows those recommendations, if he does [those] things, if he gets the education, the therapy, the medications - whatever you've recommended, and if he wants to improve and if he buys into that, does he have brighter days ahead?" Dr. Glidden responded: "I would think and hope so, yes."
On cross-examination, Dr. Glidden conceded that traumatic brain injuries can cause chronic headaches, permanent changes in personality, permanent memory problems, permanent ringing in the ears, and permanent sleeping problems. Dr. Glidden further conceded that after a traumatic brain injury, a person can permanently come across as a very different person, to the loved ones in their life. He conceded that Little went for the rehabilitative therapy for headaches, behavioral changes, problems with executive functioning, personality change, and sleeping problems, all of which can arise from a traumatic brain injury. Dr. Glidden acknowledged he had opined in his report that Little's brain injury had resolved or should have resolved before the time Little underwent rehabilitative therapy under Dr. Helvie's direction.
Dr. Glidden further acknowledged, on cross-examination, that his expertise as a neuropsychologist was more limited than Dr. Helvie's as a neurologist. Dr. Helvie was able to order MRIs and prescribe medications, while Dr. Glidden could not. Dr. Glidden had read reports indicating that, after the accident, Little extricated himself from the truck and that his Glasgow Coma Scale was 15. He had taken those facts into consideration in formulating his opinions.
C. Jury Instructions on Damages
The trial court instructed the jury as follow as to damages:
"If you decide that Laurence Mitchell Little and Susan Little were harmed, and that Davinder Singh and U.S. Freight Carrier, LLC's negligence was a substantial factor in causing the harm, you also must decide how much money will reasonably compensate Laurence Mitchell Little and Susan Little for the harm. This compensation is called damages. [¶ ]....[¶ ]
"Laurence Mitchell Little and Susan Little do not have to prove the exact amount of damages that will provide reasonable compensation for the harm. However, you must not speculate or guess in awarding damages.
"The following are the specific items of damages claimed by Laurence Mitchell Little and Susan Little.
"The following are the specific items of damages claimed by Laurence Mitchell Little.
"Past and future. Number one, physical pain; number two, mental suffering; number three, loss of enjoyment of life; number four, physical impairment; number five, inconvenience; number six, grief; number seven, anxiety; number eight, humiliation; number nine, emotional distress.
"No fixed standard exists for deciding the amount of these noneconomic damages. You must use your judgment to decide a reasonable amount based on the evidence and your common sense. [¶ ]....[¶ ]
"Susan Little claims she has been harmed by the injury to her husband, Laurence Mitchell Little. If you decide that Laurence Mitchell Little has proved his claim against Davinder Singh and U.S. Freight Carrier, LLC, you also must decide how much money, if any, will reasonably compensate Susan Little for loss of her husband's companionship and services, including, one, the loss of love, companionship, comfort, care, assistance, protection, affection, [social] and moral support, and two, the loss of the enjoyment of sexual relations."
"Susan Little may recover for harm she proves she has suffered to date and for harm she is reasonably certain to suffer in the future. [¶ ]....[¶ ]
"If you decide Laurence Mitchell Little has suffered damages that will continue for the rest of his life, you must determine how long he'll probably live.
"According to the National Center for Health Statistics, a 69 year-old male is expected to live another 15.2 years. And a 67-year-old female is expected to live another 19.0 years. [¶ ] This is the average life expectancy. Some people live longer and others die sooner."
D. Arguments
Little's Closing Argument
Little's counsel, in his closing argument, focused overwhelmingly on Little's brain injury and its ramifications, and on critiquing the testimony of defense experts, all of whom testified to various aspects of Little's brain injury. Counsel briefly mentioned Little's damaged neck and shoulder (Dr. Helvie testified Little's neck and shoulder had sustained, from the force of the collision, nerve damage that was painful) but did not mention Little's arm. Counsel clarified that Little was, however, able to do regular, dayto-day tasks. Counsel argued, in part:
"I think when you put the evidence all together, when you put all the evidence together, the cyanosis, the lack of oxygen, all the different impacts, and what has gone on here, the profuse bleeding from his head that they had to stop, put all that together, you might decide that that's the tip of the iceberg of the damage. Because we learned about what we can see on a microscope versus a macroscope. An MRI would be macroscopic. A microscope is what we see when we actually look at the cells. [¶ ]....[¶ ]
"Right in the highway of the frontal lobe and the other spot is right in the back. This is not just an uncomplicated mild brain injury. A lot more to it. There's a lot more to it, isn't there? There is.
"You'll have that back there. No, no, no, no. This Glasgow - they base their opinions on the Glasgow Coma Scale was 15. No. No, sir. No, it was not. [¶]....[¶]
"Mr. Little has that sound of a jet plane in his ears ever since he was hit by the big rig. That's direct evidence of what he's experiencing. And it's indirect evidence of the brain injury. Because ringing in the ears . . . is the trail that a brain injury can leave behind. [¶ ]...[¶ ]
"This wasn't mild. It wasn't uncomplicated. He didn't recover from his brain injury before he ever went to CNS [Center for Neuro Skills] [for rehabilitative therapy]. [¶ ]...[¶ ]
"The PTSD. The defense expert said he can't have PTSD because he didn't see it. But what we heard - what we heard is that Mr. Little has that memory of being in great pain for that moment when he came to, in and out of consciousness, that moment when he came to, and he remembers looking out the ambulance door and seeing the wreckage. And at that point he is in the ambulance. He's got a gash in his head. He is in a lot of pain. And he saw the wreckage, knowing he's in the ambulance. That's what would give PTSD. [¶ ]...[¶ ] So, yes, he wakes up with nightmares. And, yes, he has an anxiety disorder caused by a traumatic brain injury that he never had before. [¶ ].[¶]
"Nobody talked about the thermal dysregulation from the defense side. There's a failure to explain or deny evidence. That's a tip of that iceberg. Why is this person - why does he have thermal dysregulation? They didn't explain that evidence, just left that alone. You heard his neurologist talk about it.
"You also didn't hear them talk about the ringing in the ears. They just ignored that. [¶ ]...[¶ ]
"There shouldn't be any doubt about it. The brain was concussed and injured. And then there's this post-concussion syndrome that we hope goes away. But when we got a 66-year-old brain, got all these impacts, got the air bags, you got the lack of oxygen, then it makes it grimmer.
"I heard - I think everyone heard . [the] neurologist that the defense hired, he said - said this was just like slipping on the deck and bonking a head and momentarily lost consciousness. Remember that from the neurologist? It is a slip and a bump. Everything will just heal up. [¶ ]...[¶ ]
"These are all the things that are real. And these are all the things that haven't gone away. But they're not things that put limitations. He can still physically move. He can still drive. He can still go to the grocery store. He can still - that's the thing about chronic pain. You can't look at a person - you can't look at a person and say he's not in pain, she's not in pain. You can't look at a person and say, oh, there's nothing wrong with their thinking process. You can't just look at people. It's one of those -one of those kind of invisible injuries, if all we're doing is just looking at people, you know, walking around. [¶ ]...[¶ ]
"So what happened inside his brain that this was enough - that this was enough to mess up his shoulder that bad and permanently, to break ribs, to collapse a lung, to hurt his neck forever. Wasn't it enough to hurt his brain forever? That's where you all get to put your common sense and say, hold on, we listened to it all. We put it together. [¶ ]...[¶ ]
"And you've heard about who he is now, who he is now, through no fault of his own. And the worst thing for him, you can see it there, that he is not the man that he was for his family.
Susan Little's Closing Argument
Susan Little's counsel argued, in part:
"A brain injury doesn't just happen[] to the patient. It transfers over to the family unit. [¶ ] He used to take care of her and now she is the caretaker. Can he still do things? Sure. Can he still move his body? Can he still - I don't even want to get into the driving anymore. Can he still do things? Sure. But is it the same as that feeling, of knowing you are cared for? That feeling of knowing that you have cared, that she has cared for his children, for his grandchildren, and that he cares for her."
Defendants' Closing Argument
Defendants' argument was focused on Little's brain injury. Defendant's counsel argued, in part:
"Now I don't want to oversimplify the case, but the majority of this case comes down to this. And, yes, I am going to say mild, uncomplicated traumatic brain injury. I will tell you why in a second. But it is mild, uncomplicated traumatic brain injury on May 17, 2017 versus permanent damage to the brain caused by that accident. That's kind of what has been some of the disagreement here and the debate.
"Now, [Little's counsel] said we're not buying the phrase or the term or that it is mild, uncomplicated TBI. Well, all of their experts agreed that it was a mild traumatic brain injury. Everyone did. Dr. Helvie tried to say, well, I'm not sure I agree with the classification. And then [defendants' cocounsel] pulled out his deposition and read from it and he said, yes, I agree it is a mild traumatic brain injury. Everyone agreed with that. [¶ ]...[¶ ]
"The only witness in the entire case who claims there's actual evidence of physical damage to Mr. Little's brain caused by this accident is who? Dr. Jabour. It all comes down on him for their case of this permanent damaged brain. [¶ ]...[¶]
"Dr. Edmonds said there's no evidence of hypoxic brain injury or damage. Remember, he examined - he met and examined Mr. Little. Mild traumatic brain injuries are not progressive. They don't get progressively worse over time. He said mild TBIs do not cause permanent brain damage.
He testified on that witness stand that Mr. Little has an anxiety disorder with some depression, but anxiety and depression are treatable.
"And, folks, here's that issue. Are you looking at a person who's crying in the shower and withdrawn and lacking of confidence and all the other things because of a permanent brain damage, or because, as you heard from Dr. Glidden, he keeps hearing he's brain damaged. He's told he is brain-damaged, which would cause any of us to be anxious and depressed and cry.
"So as Dr. Glidden said, if you change that paradigm, change that dynamic, get him to buy into a new education, a new approach, you are not brain-damaged, we can work on that, and your anxiety and depression can get better, you won't be crying in showers. Dr. Glidden said there can be brighter days ahead. You are not treating a brain injury. That resolved. You are treating the anxiety and depression that comes from people telling you over and over, 'You're brain-damaged.' [¶ ]...[¶ ]
"And by August 5, 2019, the mild complicated TBI had fully resolved. [¶ ] [Dr. Glidden] told you he does not have PTSD ... He has anxiety. He called it a disorder. He said it is treatable. [¶ ]...[¶ ]
"Now, I am going to give you some numbers, and I will give you specific numbers. [¶ ] So he gets in a car accident. He goes to the hospital. He has to deal with all that in the past. He gets a mild uncomplicated brain injury. He gets treatment at CNS. He goes to them. [¶ ] So what is that worth today? Oh, and he's had anxiety and depression. [¶ ] The fair and reasonable number of that for the past - and I'm telling you straight up, $1,500,000.
"For the future, because that TBI has resolved, because it's resolved, but he's still in the healing process, dealing with the anxiety, the personality disorder, there's going to be some more care and treatment over the course of his lifetime, that fair and reasonable damages for the future is another $1 million. So the combined fair and reasonable damages for Mr. Little, $2,500,000 total.
"Now, I want to turn to Mrs. Little. I have tremendous respect for Mrs. Little. She has, as someone said, stood by her man. She's been with him through thick and thin. She has honored proudly and well her wedding vow in sickness and in health. She has been there for him and she is still with him today. [¶ ]...[¶ ]
"So my thought was, bad accident, it affected them. Did that steal their love? Take away their love? Do they love each other any different or any less? I didn't hear that. Do we hear that they're going through some bumps, they've been through some bumps together with this? Sure. And that's why she should be compensated. But they're together, they do things together, and they still love each other and are in love with each other the same way they were before this, to their credit. [¶ ]...[¶ ]
"But what is fair and reasonable for what Ms. Little went through, Ms. Little went through already, the past, $250,000. For what she is going to go through helping him, the anxiety and dealing with it for the future, another $250,000. Total for her, $500,000."
"So the total fair and reasonable compensation for the plaintiffs collectively in this case, $3 million."
DISCUSSION
I. Trial Court Did Not Abuse its Discretion in Excluding Sub Rosa Surveillance Video Footage Proffered by the Defense
Toward the last day or so of trial, after all of plaintiffs' witnesses had testified in the case (the plaintiffs' last witness, Little, had completed his direct examination and one defense witness was left to testify), defendants' sought to introduce approximately eight minutes of sub rosa surveillance footage of Little engaging, in normal fashion, in everyday tasks, such as, inter alia, cleaning his car, walking to his car with shopping bags, carrying a box to his car, lifting a couple of regular chairs (one with each hand) and moving them a short distance, and putting a suitcase into the hatch of his car.
Defense witnesses had previously testified out of order.
The trial court heard extensive argument on the admissibility of the sub rosa surveillance footage, even setting aside an entire day (without the jury present) to consider and rule on the issue. Defendants did not provide the footage at issue to plaintiffs in discovery or at any point before plaintiffs finished presenting their case. Rather, defendants proffered the sub rosa surveillance footage as impeachment evidence, arguing the surveillance footage contradicted plaintiffs' evidence. The trial court ultimately excluded the proffered sub rosa surveillance footage under Evidence Code section 352 (section 352). The trial court ruled any probative value encompassed in the video clips was outweighed by the potential for misleading the jury and the undue consumption of time that their admission would entail. Defendants challenge the trial court's ruling. We affirm.
A. Background
As the trial wound down, and the parties and the court were discussing, outside the presence of the jury, the schedule for the last day or two of trial, Little's counsel asked: "Are we dealing with any video surveillance sub rosa evidence[?]" Defendants' counsel declined to answer that question. The next morning, Tuesday, September 21, 2021, the court noted, outside the presence of the jury: "I did receive this morning plaintiffs' objection to sub rosa. I don't think I need to deal with that unless and until there's an attempt to introduce sub rosa." Defendants' counsel said he would raise an issue with the court, but only after both plaintiffs confirmed they had completed their respective direct examination of Little, their last witness. Defendants' counsel emphasized, "I'd .. like to .. hear those words, 'No further questions.' [¶ ] And then I'd like to take that issue up, Your Honor."
Later that same morning, Tuesday, September 21, 2021, outside the presence of the jury and upon confirming that Little's direct examination was finished, defendants' counsel stated: "Given that [counsel for Little and counsel for Susan Little] are both done with their questioning of Mr. Little, we do have sub rosa video." Defendants' counsel added: "Obviously, I couldn't have disclosed this before, until the questioning of Mr. Little and Mrs. Little concluded. And we are in our case in chief, which I think we are subject to cross-examination by me of Mr. Little. [¶ ] So a thought. We can - I can do my cross of Mr. Little. I told [Little's counsel] I did not expect it to last more than about 15 minutes, other than sub rosa. I don't think it requires [Little] to be on the witness stand while I'm playing it [the sub rosa video] . as long as we can play it at any time during our case in chief, we're fine."
The court asked defendants' counsel: "The sub rosa that you wish to show, how long is that?" Defendants' counsel stated: "About nine and a half minutes. In total, nine and a half minutes." The court asked, "Is that edited?" Defendants' counsel responded: "It is. There's many more hours of it, and that's an edited down version." The court asked: "What's the total amount of hours that was edited from? Ballpark, if you can't give it to me exactly." Defendant's counsel said: "I'm going to say four to six hours. That might be high." The court asked: "On the same day?" Defendants' counsel answered: "No. No. It's over multiple days, over a couple of years." The court asked, "So the nine minutes or so that you propose to show is on multiple days as well?" Defendants' counsel replied: "It is, Your Honor. Multiple days, different years, different types of events being done. I'm advised, Your Honor, that the total video time is 5 hours, 15 minutes."
A little later, when the court and the parties resumed discussion of the sub rosa footage issue, the court commented: "I don't see that there's any other basis to admit it at this point if it's not truly impeachment." The video was then played for the court and parties; it was seven minutes and 50 seconds in length. The court, noted, "The primary thing I'm going to be looking for is whether or not I consider it to be impeachment and whether or not I consider it to be probative. That' really, I think, all I can address right now." The court confirmed that plaintiffs were seeing the footage for the first time.
Defendants' counsel played the following clips (the descriptions of the clips are excerpted from the defense's proffered descriptions): Exhibit 270 (February 28, 2020, 27 seconds; pulls trash bin up driveway and closes garage door); Exhibit 271 (June 27, 2020; 1 minute, 24 seconds; shopping at Walmart, pushes cart, and carries bag in left hand); Exhibit 272 (June 27, 2020; 21 seconds; exits store with bag in left hand); Exhibit 274 (July 3, 2020; 9 seconds; picks up box of packages at UPS store and carries to car); Exhibit 275 (October 3, 2020; 19 seconds; moves dolly in back of empty truck); Exhibit 276 (October 4, 2020; 35 seconds; exits Walmart, pushes cart with left hand, loads car);
Exhibit 277 (October 4, 2020, 17 seconds; unloads car); Exhibit 278 (October 4, 2020; 12 seconds; carries two metal chairs, one in each hand); Exhibit 279 (October 4, 2020; 11 seconds; bends and picks items off ground); Exhibit 280 (February 22, 2021; 1 minute, 5 seconds; vacuums car after wash); Exhibit 282 (May 10, 2021; 44 seconds; washes car window with left hand/arm); Exhibit 283 (May 10, 2021; 33 seconds; continues to wash car window with left hand); Exhibit 284 (May 10, 2021; 19 seconds; wipes car with left hand); Exhibit 285 (June 13, 2021; 20 seconds; closes door with left hand and carries container using left arm); Exhibit 286 (June 13, 2021; 49 seconds; loads suitcase into back of car). Afterwards, the court commented: "All right. I am inclined to exclude some of that as being non-impeachment and nonprobative. But there's a few in there that I think, at least at this point, would get by that test and would be subject to other objections."
Thereafter, the jury was brought back in, and defendants' counsel completed his cross-examination of Little; the defendants' last witness, Dr. Glidden, was called next and wrapped up his testimony. The court then admonished the jury: "Ladies and gentlemen, there's been a development in this case. Some possible new evidence has been brought to my attention and the attorneys and I are going to have to do - spend a fair amount of time doing some investigation tomorrow to determine whether that evidence should or will be presented in this case. [¶ ] I think that task is going to take most of the day, so I don't want to tell you a time to come down here and then find out that we are still wrestling with that task. So I'm going to ask you to come back Thursday morning at 9:30."
The court told defendants' counsel "to provide plaintiffs' counsel with all of the video footage, as well as the snippets that you previously played and identified as exhibit numbers." Defendants' counsel informed the court that an investigator, Derek Wright, filmed the videos and counsel's "tech person," Rob Loera, pulled the clips or snippets out of the footage to create separate exhibits. Defendants' counsel said he would provide plaintiffs' counsel with the videos on four discs, as the discs would reveal "the original metadata" associated with the videos; he also provided counsel with the videos on a thumb drive as the drive had "more information" associated with the videos. Plaintiffs' counsel said: "Your Honor, there's no way I can review this by tomorrow. I need to have somebody do that. Metadata? I need to have a person who does this for a living look at this stuff, go through it, go through the metadata. This is why this is a [section] 352 issue." After a little more discussion, the court adjourned the proceedings for the day.
The next morning, Wednesday, September 22, 2021, the court and parties resumed the discussion regarding admissibility of the sub rosa surveillance videos. The court summarized the parties' positions. The court noted: "The defense's position in general is that the video exhibits that were marked for identification and displayed to the Court yesterday are probative and are admissible as impeachment." As for the plaintiffs, they were challenging admissibility of the evidence "because of alleged violation of discovery rules" and under section 352. Plaintiffs also took the position that if the video snippets were admitted, the entirety of the five hours and 40 minutes of footage "should be admitted to provide context and pursuant to the rule of completeness." Finally, plaintiffs requested "a short recess of approximately one week to allow for investigation to detect tampering or manipulation" and "to prepare for rebuttal."
Little's counsel stated he was not prepared to examine the investigator who shot the video footage as he had "now been handed investigation reports" and had not had a chance to have the camera and the videos examined by a "forensic examiner," and was therefore not in a position to question the investigator for the benefit of the court. Counsel added: "I haven't had a chance to read this stuff or review all of the footage. It's five hours and 40 minutes. I [got] home last night, and I got through an hour and a half of it because you have to pause, okay, rewind. You are trying to figure it all out. The time consumption is already huge, and it's very prejudicial. So I would be put at a disadvantage, and it is unfair to be put in a place where I have to start questioning witnesses."
Defendants' counsel confirmed the investigator was prepared to testify at an Evidence Code section 402 hearing but withdrew Exhibit 270 because the investigator was "not the person who shot 270." Little's counsel said, "[F]ive hours and 40 minutes over this long period of time and all these years and to get served with all these [surveillance] reports, this is a whole other level." He said he was not prepared to ask the right questions to establish any lack of credibility or any manipulation. Susan Little's counsel said he was not ready to examine the investigator either, explaining: "We had a phone call late last night with a consultant, who gave us information about what we need to know in order to evaluate this nearly six hours of footage, and it is complicated and it is technical."
Little's counsel explained he also needed time to prepare a rebuttal case. He said: "I have to talk to witness[es] to put - to reopen our case or do a rebuttal case to put it all into context. [¶ ] For example, we have Mr. Little in one of the videos, he's [carrying] this bin. Is it heavy? Is it not heavy? I don't know . . .. What's in there is his dead daughter's urn. And he didn't - when he was moving this, he goes, I don't want anyone else to touch this. The suitcase - the heavy suitcase, that's his dead daughter's belonging[s,] clothes, and pictures. He didn't want anyone else to touch that, insisted on doing it himself. What the frames don't show is all the other people helping him move that day. So I have to bring those witnesses in to put it all into context." Little's counsel also noted he would have to prepare to depose the defendants' investigator and other witnesses involved in creating and handling the video footage.
The court raised the issue of the plaintiffs' request to show the entire video footage to contextualize any video snippets admitted by the court. The court noted, "I'm at a handicap because I haven't seen what's on the rest of the video." Defendants' counsel argued: "So if you allow them to play five hours and there is a lot of irrelevant nothing going on, the argument is going to be that, yeah, we cherry-picked, and we shouldn't have used this, shouldn't [have] even used the minutes we had."
The court made a ruling to the effect that were it to "admit any of the video," it intended to "take a recess for one week to allow for preparation of plaintiff's rebuttal." The court indicated that plaintiff's would have the opportunity during the recess to depose the defendants' videographer and other witnesses involved in creating and handling the videos, and to utilize those witnesses in their rebuttal case. The court further indicated it would allow plaintiffs to show other parts of the video footage, subject to legitimate evidentiary objections. Finally, the court denied the plaintiffs' request to exclude the sub rosa surveillance videos based on allegations of discovery-related violations.
The trial court then turned to the plaintiffs' arguments that the proffered sub rosa video surveillance evidence should be excluded under section 352. The court noted, "And quite frankly, I think those are the strongest grounds that have been advanced." The court clarified that, in its view, the proffered sub rosa surveillance evidence was not probative to the orthopedic issues and would only potentially be probative to the mild traumatic brain injury. Little's counsel argued the sub rosa surveillance evidence should be excluded under section 352 because it had minimal probative value for impeachment purposes, and its admission would lead to "confusion of the issues" and entail "[u]ndue consumption of time."
Little's counsel argued the sub rosa surveillance evidence was not particularly probative in terms of undermining the credibility of plaintiffs' witnesses. Counsel said: "So the credibility would be, Mr. Little, did you go to the Home Depot by yourself? Is it your testimony that you have never gone to the Home Depot by yourself or the UPS? That's right. I have not. Boom. There is some impeachment on credibility." Counsel suggested that was not the case here. Counsel noted Little testified he could do everything he did before the accident and his wife said he could do everything he put his mind to. He said Little was not asked whether he had difficulty doing the tasks in the video, and to that extent, there was insufficient foundation for the defendants' video snippets.
Counsel further argued the surveillance videos did not undercut plaintiffs' evidence to the effect Little had lost confidence since the accident. Counsel argued: "I lack confidence. That's seeing me walk around out there in the world and do mundane tasks doesn't show whether I lack confidence or not. Think of it as human beings, when we have lacked confidence? Can people tell if we lack confidence by videotaping us at the grocery store? That's misleading." Counsel added: "He lacks confidence to take his family out in the wilderness because he can't protect them the way he used to. That's the confidence he lacks. He lacked confidence with his business because he couldn't remember names and tasks the way he used to. Those videos don't show that, one way [or] the other."
Counsel argued the surveillance videos did not undercut plaintiffs' evidence to the effect Little was socially withdrawn since the accident. Counsel argued: "Socially withdrawn. Do those videos show whether [Little is] socially withdrawn or not? They show him with his wife, which he testified he's always with his wife. She testified that they're together. It shows him moving, loading stuff in the car. What does it show him socially? He's not bowling. Not hanging out with his pals. He's not at the bar. What's he doing socially? You are inviting the jury to speculate and saying, look at what he does, so that means he's not socially withdrawn."
Little's counsel argued the videos did not impeach Little's testimony that after the accident, he did things more slowly. Counsel noted: "There is no comparison. Does he push a cart slower than he did before? . . . Does he carry a box, load the back of a car slower than he did before? We have to compare back in time." Similarly, counsel noted: "He appeared weak in Texas. Okay. Weak compared to what? His granddaughter, who works for a living, she talked about what she saw. Impeachment of her credibility would be there you are with him in the video doing something that you said he could not do, or doing something that you said you didn't see and there you are. You did see it. That would be impeachment of her credibility. So that doesn't exist." "There is nothing ... in [these] videos that impeach[es] the credibility of the family members and proves that Mr. Little, in their view, is the way he was before." Counsel added: "Defense counsel didn't ask for any specific examples of before versus after with anybody. They just left it alone, wait[ed] until the last minute to play this video and . . . say, here we . . . go. So it is not really impeachment evidence is what we heard. It is direct evidence is what they want to use it for."
Regarding the risk of misleading the jury or confusing the issues entailed by admission of the sub rosa video footage, Little's counsel argued:
"The confusion of the issues - I heard Your Honor earlier and you said you don't believe it is probative to any orthopedic issues. It would only be probative to mild traumatic brain injury. [¶ ] ... [¶ ]
"That's a problem because that is so confusing. How can we look at a person with no audio, these little snippets in time, when we know the person can drive and we know the person can go to the store and we know the person can, you know, take out the trash, or load a car? There has been no testimony saying that Mr. Little is unable to do those things. And does the video show that he's able to do what he's doing the same way that he did before. That's pure speculation. That's going to confuse and mislead the jury in thinking, well, it does, that there is no comparison to before. We've had expert witnesses come in to testify and say you can't look at a person and tell if they're brain injured. You can't just look at them and watch them. None of these brain injury experts said we sit there, we just watch how a person moves through life. We watch them move around the grocery store, out in the parking lot, and that tells us - that tells us if they're brain injured."
As for undue consumption of time, Little's counsel noted there were significant parts of the video evidence that were consistent with the testimony; for example, the video footage showed Little "sitting in a car, staring" and "standing in his yard, staring." Counsel further stated: "That's part of what I['ve] seen. And then ... I have to depose that investigator. And I want to find out all the stuff he saw that he didn't - when he wasn't pressing the record button. That all becomes relevant." Counsel argued he needed time to "have everything reviewed" and to "take some depositions," and then to "put that into trial strategy and line that up with witnesses."
Little's counsel concluded: "You can argue [the sub rosa surveillance evidence is] relevant, but there has to be a foundation where the Court can go from this dot, witness on the stand, who testified to this, which is contradicted by this, and it needs to be specific if this is going to have such probative value that it outweighs all of these different prejudicial effects."
Defendants' counsel argued that the video evidence should be admitted because it attacked the credibility of plaintiffs' witnesses by impeachment and undercut Little's claims of traumatic brain injury and orthopedic injuries. Defendants' counsel argued: "Three of the witnesses, Mrs. Little, Mrs. Jones, and Mr. Carter were called to say how is [Little] different before and after. I have no way of attacking their credibility. I wasn't at their home in Texas. I don't live with them. I can't say you're wrong, and I know because we were at that dinner and he wasn't socially withdrawn. I can't do that. [¶ ] So the way we can do it, the law allows, is to obtain some real world evidence to find out if what they say is accurate or not. Then through impeachment evidence, you can question the credibility of those witnesses and the testimony they gave about their view of Mr. Little." Counsel pointed to Allyson Jones's testimony that "all [Little] did recently in Texas was sit on the couch and go outside and gaze at the trees. He didn't do very much. He appeared to be very weak. And they were asked what does body language look like, and she said he looked very weak when he was in Texas most recently."
Defendants' counsel further argued: "[The sub rosa video evidence] shows this man moving smoothly, walking normally, not having any issues with balance or sight that they talked about, with the ability to navigate through the world. He also shows like he's moving with confidence. That he's - that's all I can say. He's confident. And that belies this claim that he is damaged goods and has cognitive limitations now and for the rest of his life."
In addition, defendants' counsel contended: "I'm going to turn to point three, and that is the orthopedic injuries . . .. Those videos show [Little] moving very smoothly. I know you can't tell pain or no pain. You can see how he's moving. You can see how the neck is moving." Defendants' counsel also noted that the video of Little holding packages from the UPS store under his left arm shows his arm is fully functional.
Counsel added: "I don't know if there is pain or not. [This] shouldn't be the end of the discussion."
B. Trial Court's Ruling on Section 352 Issues
The trial court excluded the sub rosa video surveillance evidence pursuant to section 352. The court agreed with defendants that the sub rosa surveillance video evidence constituted impeachment evidence, but concluded its probative value was substantially outweighed by the undue consumption of time its admission would entail. The court observed:
"I do want to make it clear that I don't fault - I don't see anything to fault or to criticize in the defense decision to withhold production of the video until the point at which they wish to utilize it. I don't see anything to criticize about the decision of the defense in resisting the numerous invitations to produce or disclose the video at an earlier point. But as I indicated, at some point this morning, while it continues to be my view that they may not be compelled to disclose impeachment evidence and may rely on work-product privilege up until their decision to utilize the evidence, application of those principles also may lead to decisions that may ultimately jeopardize the admissibility of the evidence. In this case . . . the biggest factor was - my decision - that while I was considering the admissibility of some of those video clips, the - my decision was that it would be appropriate to give the plaintiff a reasonable opportunity to evaluate and present rebuttal evidence, and the consequence of that essentially led to my conclusion that we would be looking at an undue consumption of time. [¶ ] .... [¶ ]
"[A]s I indicated, I do view, not only the time spent in presenting rebuttal testimony but also the time spent investigating and preparing rebuttal testimony as time to be considered when I decide whether or not there's undue consumption of time. And were I to allow the video to be introduced, I don't think that there's any way that I could deprive the plaintiff of a reasonable amount of time to prepare and present a rebuttal. I had already indicated that I thought a week was a reasonable period of time, but when I considered all the other factors, I think that's an undue consumption of time. [¶ ] .... [¶ ]
"And in all instances the undue consumption of time far outweighed any probative value. [¶ ] ... [¶ ]
"I'm anticipating, based on the argument that I heard, that we're going to hear one or more technical experts on the video, plus several lay witnesses to give us context with respect to the various incidents spanning various different days filmed on the video clips."
The trial court further determined the probative value of the sub rosa video clips was substantially outweighed by the risk they would mislead the jury. In this context, the court ruled:
"I was not convinced by any of the arguments [that] the video clips that I saw were probative on the issue of orthopedic injuries or credibility on the orthopedic injuries. [¶ ] ... [¶ ]
"Nobody specifically addressed this in their argument, but some of Mr. Little's testimony and presentation and evidence was nonverbal in nature, including his presentation to the jury of his shoulder. But also his affect and demeanor and presentation is part of the evidence that the jury would consider. And I believe that some of the video that I saw impeached the way he presented himself here. So I do believe that there is probative value to some of that video, but as I listened to the argument today and I listened to the ways in which it was argued that the jury might be tempted to speculate and draw other conclusions from that video other than what I had been considering, I saw more and more danger that there might be more prejudice than I had initially realized in admitting those videos."
The court had earlier observed: "I view some of the video of Mr. Little's - I'll characterize it as affect, attitude, body language as being at odds with the description of the same and the affect that the TBI has had on his ability, his confidence, and related testimony."
The court observed the "potential of misuse by the jury far outweighed the probative value" of the surveillance clips. The court concluded: "So for all those reasons, I will exclude the videos under both prongs of Evidence Code section 352."
C. Standard of Review
We review the exclusion of evidence for an abuse of discretion. (Mardirossian &Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 269; People v. Alvarez (1996) 14 Cal.4th 155, 203 ["appellate court reviews any ruling by a trial court as to the admissibility of evidence for abuse of discretion"].)" 'A trial court's exercise of discretion in admitting or excluding evidence . . . will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.'" (Christ v. Schwartz (2016) 2 Cal.App.5th 440, 446-447.)
These rules apply with equal force to evidence offered for impeachment. (People v. Tuggles (2009) 179 Cal.App.4th 339, 361 ["As with all relevant evidence, however, the trial court retains discretion to admit or exclude evidence offered for impeachment."].) The rules also govern the exclusion of evidence under Evidence Code section 352. (Gouskos v. Aptos Village Garage, Inc. (2001) 94 Cal.App.4th 754, 762 (Gouskos).)" 'A decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.] In the absence of a clear showing that its decision was arbitrary or irrational, a trial court should be presumed to have acted to achieve legitimate objectives and, accordingly, its discretionary determinations ought not be set aside on review.'" (Ibid.) In other words, "[t]he discretion to be exercised is that of the trial court, not that of the reviewing court." (Martin v. Johnson (1979) 88 Cal.App.3d 595, 604; Gouskos, supra, 94 Cal.App.4th at p. 762 ["[I]t is the exclusive province of the trial court to determine whether the probative value of evidence outweighs its possible prejudicial effect."].) "Thus, even if the reviewing court might have ruled otherwise in the first instance, the trial court's order will yet not be reversed unless, as a matter of law, it is not supported by the record." (Martin v. Johnson, supra, at p. 604, italics added.)
"Error in the admission of evidence is reversible only if there is a reasonable probability-meaning a possibility that is more than abstract-that the appellant would have obtained a more favorable result had the evidence been excluded." (Pina v. County of Los Angeles (2019) 38 Cal.App.5th 531, 545.) "A' "reasonable"' probability under this test is one sufficient to undermine the reviewing court's confidence in the outcome." (Ibid.) We make such a determination based on the totality of the relevant circumstances. (In re Richards (2016) 63 Cal.4th 291, 312-313.)
D. Analysis
Preliminarily, we note the trial court ruled defendants did not have a duty to disclose or produce the surveillance evidence any earlier than they did. Thus, the trial court effectively determined the surveillance video evidence was potentially admissible as impeachment evidence, subject to section 352. Significantly, plaintiffs do not contest the ruling that the video surveillance evidence was potentially admissible as impeachment evidence.
Under section 352, the trial court may exercise its discretion to exclude evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) Under this statute, a trial court has broad discretion to" 'exclude even relevant evidence if it determines the probative value of the evidence is substantially outweighed by its possible prejudicial effects.' " (People v. Parker (2022) 13 Cal.5th 1, 53.)
Section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Since this is a highly case-specific determination, defendants' citation to cases such as Diamond Offshore Servs. Ltd. v. Williams (Tex. 2018) 542 S.W.3d 539, for the broad proposition that surveillance footage goes to the "heart" of damages in personal injury cases, is unavailing.
Probative Value of the Sub Rosa Video Evidence for Impeachment Purposes
The trial court found the video surveillance evidence was not particularly probative for impeachment purposes. The trial court noted it initially was of the view "there is probative value to some of that video," but the court revised its initial view once it "listened to the argument," and "listened to the ways in which it was argued that the jury might be tempted to speculate and draw other conclusions from that video other than what I had been considering." In other words, the probative value of the videos was diminished because it was undercut by inherent speculative elements.
When pressed on its assessment of the probative value of the video clips, the trial court stated: "I would exclude 270 [pulls trash bin up driveway; previously withdrawn by defendants' counsel], 278 [lifts two chairs], 279 [bends over and picks items off ground], 280 [vacuums car after wash], 282 [washes car window], and 283 [continues to wash car window] as having little, if any, probative value. [¶ ] I'm not prepared to make a hard-and-fast ruling as to the remaining exhibits as to whether or not I find probative value. I will just say that I had some questions as to Exhibits 272 [exits store with bag in left hand] and 277 [carries bins] and 284 [wipes car with left hand] and 286 [loads suitcase into back of car], but I may have ended up going either way on those. And I most likely I think I would have found probative value on the others. But even in those cases where I found probative value, I find . . . that the prejudicial value and the potential of misuse by the jury far outweighed the probative value which in some instances the probative value would have been slight. And in all instances the undue consumption of time far outweighed any probative value."
Here, the probative value, for impeachment purposes, of the sub rosa video clips of Little doing everyday tasks, was limited in light of the state of the record. Little testified that he drove, and could still do yard work, and jobs around the house. Little was asked whether he still did things outside the house as well, lived his life, and used his body. Little responded affirmatively, and repeated, "I can do all that." Susan Little was specifically asked: "In terms of being out and about in the world, shopping, driving, walking, you know, those sorts of things, can your husband Larry Little do all of those things today?" She responded unequivocally: "Yes." In short, there was no dispute that Little could perform everyday tasks. Indeed, both Little's counsel and Susan Little's counsel made that clear in their respective closing arguments.
Defendants make much of Allyson Jones's testimony that Little was weak and fragile, and she did not have him help her bring in the groceries. However, Jones did not testify Little was incapable of lifting bags; rather, she said he offered to help with the bags but she declined. Furthermore, Jones testified that, before the accident, Little was super strong and fit, had a six pack, and was training for a competitive wrestling championship. Her description of Little as weak and fragile was from the perspective of a granddaughter who had always known her grandfather to be the ultimate protector. Finally, Little's grandson, Mitch Carter did not address whether Little did everyday tasks or not; Carter's testimony focused on the personality change Little had undergone since the accident. In short, video surveillance footage of Little engaged in everyday tasks was not particularly probative for purposes of impeaching the testimony of Little, Susan Little, Allyson Jones, or Mitch Carter.
Defendants proffered the video clips as impeaching of Little's claim that his neck and shoulder were damaged from the accident (although defendants did not dispute that Little had suffered neck and shoulder injuries). It is important to review at this juncture the evidence as to the actual nature of Little's neck and shoulder injury. Dr. Helvie diagnosed Little with chronic pain disorder centered on the head, neck, and left shoulder, with nerve damage to the left posterior shoulder being an issue. Dr. Helvie noted that much of the pain was related to nerve damage to the left posterior shoulder. Dr. Helvie also noted that Little suffered from traumatic injury to the neck, cervical spine, associated with musculoskeletal supportive structures with delayed onset of cervical radiculopathy (radiculopathy refers to nerve damage). Thus, Little's neck and shoulder injuries were significant for the pain from nerve damage; they were less significant in terms of limiting Little's ability to perform everyday tasks. Little's counsel made this point in closing argument.
Since there was no claim that Little could not perform everyday tasks, the probative value of the surveillance video clips was limited. Therefore, the trial court correctly determined that the surveillance video footage was not probative with respect to Little's orthopedic injuries but was potentially probative with respect to Little's traumatic brain injury.
Risk of Misleading the Jury
The trial court thoughtfully considered the issues in making its ruling to exclude the sub rosa video clips under section 352, and carefully evaluated the arguments of counsel in this regard. The trial court observed: "So I do believe that there is probative value to some of that video, but as I listened to the argument today and I listened to the ways in which it was argued that the jury might be tempted to speculate and draw other conclusions from that video other than what I had been considering, I saw more and more danger that there might be more prejudice than I had initially realized in admitting those videos."
The trial court was referencing, it would appear, the points made by Little's counsel that the clips could not properly be viewed as reflective of issues such as whether Little's confidence had declined since the accident, whether Little was more socially isolated after the accident, and whether Little's thinking processes were less sharp since the accident. Little's counsel argued as to the application of section 352 that, to the extent the brief clips from over five hours of footage were interpreted by the jury to reach conclusions about issues such as changes in Little's confidence, social abilities, and thinking processes, the conclusions would be speculative. Counsel followed up in this vein subsequently, during his closing argument, stating: "And these are all the things that haven't gone away. But they're not things that put limitations. He can still physically move. He can still drive. He can still go to the grocery store. He can still - that's the thing about chronic pain. You can't look at a person - you can't look at a person and say he's not in pain, she's not in pain."
We detect no abuse of discretion in the trial court's determination that admission of the sub rosa video clips would mislead the jury, and further concluding that the probative value of the video clips was substantially outweighed by the risk they would mislead the jury. We note that "[a] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it"; that was not the case here. (People v. Carmony (2004) 33 Cal.4th 367, 377, 378 ["Where the record . . . 'demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance.' "].)
Undue Consumption of Time
The court noted defendants' counsel appropriately proffered the video clips as impeachment evidence at the end of trial but emphasized that in so doing, counsel knowingly ran the risk that bringing the clips to light at such a late point in the proceedings could legitimately result in their exclusion under section 352, for necessitating an undue consumption of time. The record reflects the trial court took a lot of time to allow the parties to address how potential admission of the sub rosa surveillance evidence would be handled and considered the issues deliberatively and in an even-handed manner. The trial court considered the plaintiffs' arguments that they needed time to view the entirety of the over five hours of surveillance footage, and have the footage, and metadata associated with it, reviewed by an expert. The court also considered the plaintiffs' request that should the clips be admitted, plaintiffs be given an opportunity to supplement and contextualize the clips by introducing other parts of the over five hours of footage.
Plaintiffs' counsel stressed they needed time to prepare and present a rebuttal to the video-clip evidence. In this context, the court considered the plaintiffs' request to be permitted to depose the investigator who shot the footage and other people involved in creating the clips and to have the opportunity to call them to testify in their rebuttal case. Plaintiffs' counsel also emphasized that they would have to call additional witnesses to contextualize Little's situation in the proffered video clips as, for example, to explicate the fact that Little was carrying his deceased daughter's urn in one of the clips and was supporting others in moving his deceased daughter's belongings in another clip. Plaintiffs' counsel argued defendants were deploying the sub rosa footage as direct evidence rather than strictly as impeachment evidence.
The trial court concluded, in its sound discretion, that a hiatus of one week in the trial was necessary to permit plaintiffs to examine the over five hours of footage, find appropriate experts, conduct depositions, and line up witnesses for their rebuttal case. (See People v. Stewart (1985) 171 Cal.App.3d 59, 65 ["[a]n appellate tribunal is not authorized to substitute is judgment for that of the trial judge"].) The trial court also noted it would have to further consider the time that would be consumed in the presentation of plaintiffs' rebuttal to the sub rosa video clip evidence. We detect no abuse of discretion in the trial court's determination that admission of the sub rosa video clips would necessitate providing plaintiffs with the opportunity to prepare and present a rebuttal case, and further concluding that the probative value of the video clips was substantially outweighed by the undue consumption of time their admission would entail. (Ibid. ["[Discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered."].)
Conclusion
"Although precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all of the circumstances before it being considered." (In re Marriage of Connolly (1979) 23 Cal.3d 590, 598.) This deferential standard is often difficult to satisfy." 'The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage ofjustice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
We conclude the trial court did not abuse its discretion in excluding, pursuant to section 352, the surveillance video clips proffered by defendants. Moreover, even were we to assume the court erred in excluding the surveillance video clips, given the limited probative value of the clips, defendants have not shown the error was prejudicial, in that exclusion of these clips does not undermine our confidence in the outcome. (See Pina v. County of Los Angeles, supra, 38 Cal.App.5th at p. 545.)
DISPOSITION
The judgment is affirmed. The Littles are awarded their costs on appeal.
I CONCUR: DETJEN, J.
POOCHIGIAN, Acting P. J., Dissenting.
Plaintiff Laurence Little was in a car accident for which defendants admitted liability. A trial was held solely on the issue of noneconomic damages, which include pain and suffering, emotional distress, impaired enjoyment of life, and disability.
Little's granddaughter, Allyson Jones, testified that after the accident, Little was so "very - very, very weak" and "very fragile" that she would even decline his offer to help carry in groceries.
Jones stayed with Little and his wife for several months, during which time she did not see Little do any kind of activity or leave the house. Another time, when she was with Little for three and a half weeks, he did not do any kind of activities because he was not mentally or physically "able to do it."
Since the sole issue at trial was noneconomic damages, which often centers on the daily life of the injured plaintiff, it is unsurprising that testimony like this from Little's family members would play a central role in plaintiffs' case-in-chief. But how can such claims be tested so that the jury can accomplish its truth-finding role? The answer is: through the adversarial presentation of contrary evidence. Consequently, we must consider how defendants are to counter these types of claims, which usually concern the day-to-day experience of a person to whom they have no regular access. One of the precious few ways to test and challenge a plaintiff's case in these circumstances is covert surveillance.
Sub rosa surveillance is not uncommon in personal injury cases where the primary issue in dispute is damages. Such surveillance was undertaken here. Surveillance clips offered by the defense showed Little shopping, cleaning his car, running errands, moving chairs, and doing chores with apparent ease. He was often alone and showed no visible indication of limitation, pain or anxiety. Yet, the jury saw none of this video. None. It heard from Little, his family, and some medical experts, and then awarded plaintiffs $10 million. An eight-figure sum in a case where the injured plaintiff himself said he could still do everything he did before the accident, just not as well. This trial was a lopsided presentation of evidence, and the verdict reflects it.
No one disputes Little is entitled to damages. He suffered serious consequences from the tortious conduct of the defendants and deserves to be made whole. But those damages must be calculated by a fully-informed jury - not one from which crucial, probative information has been withheld.
Probative Value
In addition to the obvious probative value the evidence had in impeaching Jones's depiction of Little, it also conflicted with the affect and demeanor Little presented to the jury.
To the contrary, the majority says the probative value of this evidence was "limited" because "there was no dispute that Little could perform everyday tasks" as shown by the testimony of Little and his wife. (Maj. opn., ante, at p. 47.) But the surveillance video was relevant and probative because it impeached Jones's testimony. The fact that it may not have also impeached the testimony of other witnesses (e.g., Little and his wife) does not undermine that probative value.
However, the majority goes on to say the surveillance video was also not particularly probative in impeaching Jones's testimony. (Maj. opn., ante, at pp. 47-48.) It is difficult to see how one could reach that conclusion. The majority said Jones did not testify Little was incapable of lifting bags, but only that she declined his offer to help with the bags. (Id. at p. 47.) There is not as much difference between these two things as the majority suggests. Its observation only begs the question, why did Jones decline Little's offer to help? Well, because he was so "very - very, very weak" and "very fragile." In other words, because Jones thought Little could not or should not lift grocery bags in his physical state. Surveillance video showing Little shopping on his own without any visible struggle is certainly probative to impeach the inference this evidence was offered to support. (See Christ v. Schwartz (2016) 2 Cal.App.5th 440, 454 [lack of "apparent pain" or "noticeable discomfort" in surveillance video can have impeachment effect as to personal injury plaintiff].) It cannot be credibly said that Jones's testimony and the surveillance videos are consistent representations of Little.
At this point, it is important to recall that we are not deciding which of these depictions of Little is closer to the truth. We need only decide whether the jury should have had both sides of the evidence on the matter before making its own decision.
Trial Court's Conclusion on Probative Value
Moreover, the trial court itself concluded portions of the video had probative value.
The majority claims the trial court initially concluded some of the video was probative but later revised its view, concluding the "probative value of the videos was diminished because it was undercut by inherent speculative elements." (Maj. opn., ante, at p. 46.) That is inaccurate.
The trial court said, "I do think that some of those video clips do have probative value. Nobody specifically addressed this in their argument, but some of Mr. Little's testimony and presentation and evidence was nonverbal in nature, including his presentation to the jury of his shoulder. But also his affect and demeanor and presentation is part of the evidence that the jury would consider. And I believe that some of the video that I saw impeached the way he presented himself here. So I do believe that there is probative value to some of that video, but as I listened to the argument today and I listened to the ways in which it was argued that the jury might be tempted to speculate and draw other conclusion from that video other than what I had been considering, I saw more and more danger that there might be more prejudice than I had initially realized in admitting those videos." (Italics added.)
The court stated its view quite clearly. The court said, twice, that it presently believed portions of the video had probative value. What the court revised in light of counsels' argument was its evaluation of prejudice, not probative value.
Because the trial court itself believed portions of the video had probative value, the evidence could not be excluded under Evidence Code section 352 unless that probative value was substantially outweighed by substantial danger of undue prejudice, confusing the issues, misleading the jury, or undue consumption of time. (Evid. Code, § 352.)
Prejudice - Misleading the Jury
There is little reason to believe the surveillance video would mislead the jury. It is rather straightforward evidence: video of Little doing things. Nothing more, nothing less. It speaks to his theoretical ability to perform the tasks depicted. It does not conclusively establish his level of pain while doing them, nor how happy or sad he is, nor how often he undertakes the tasks depicted. The jury would have to decide for itself how much the video would factor into its decision, and there is no reason to believe that would have been a uniquely difficult task.
The majority observes that it "appear[s]" the trial court was persuaded by Little's counsel who argued the surveillance video did not speak to whether Little's confidence had declined since the accident, was more socially isolated after the accident, or whether his thinking process was less sharp. (Maj. opn., ante, at pp. 48-49.) Counsel's argument is a non sequitur. Not all evidence is relevant to every issue in a case. Indeed, it rarely is. The simple reality is that the surveillance video impeached Jones's depiction of Little. The fact that it did not also further the defendants' case in other ways does not mean it was prejudicial. That is just not what prejudice means. And it is certainly not what "substantial danger" of "misleading" the jury means.
Undue Consumption of Time
Plaintiff's counsel requested a one-week recess to allow for "investigation to detect tampering or manipulation" of the surveillance video.
During a later discussion of the issue, defense counsel said there is no support for any claim of manipulation. The trial court said that it would not assume manipulation occurred. The court said it had a fair amount of experience with video evidence and that "for the most part, [manipulation is] not an issue."
Defense counsel stated, "I can make a representation that if that becomes an issue, I can put this gentleman up [the custodian of the evidence] and establish that there was no manipulation. I can have the custodian testify no manipulation, chain of custody. I can establish all that."
Defense counsel argued, "The gentleman in the [Evidence Code section] 402 [hearing], I will make an offer of proof, were he to testify, he doesn't know how to manipulate evidence, much less do it, and he didn't.. . .
"What typically happens when this comes out is they look at the eight or nine minutes, make their arguments, whether it is impeachment or not, and if the Court allows something in, they then pull something out of the stuff we're not using to show, okay, there are times where he does appear to be impaired or not physically active to impeach the impeachment or rebut the impeachment. That's typically what happens. I've never stopped for a week to go get experts to do a forensic deep dive into the video."
The court ruled that if the footage was admitted, it would grant a one-week recess of the trial for plaintiffs to prepare a rebuttal. The court later relied on this ruling to establish the undue consumption of time prong under Evidence Code section 352.
Plaintiff's general and unremarkable observation that evidence can theoretically be manipulated simply cannot be allowed to override defendants' right to present probative evidence. While it is true that video can theoretically be manipulated, the exact "same contention can be made regarding many classes of evidence." (Heiman v. Market St. Ry. Co. (1937) 21 Cal.App.2d 311, 314-315.) Plaintiffs provided no reason or allegation to suspect the video clips in this case were deceptively manipulated. This is why requests for postponement to obtain evidence are disfavored unless it is shown the evidence expected to be obtained is material. (See, e.g., Code Civ. Proc., § 595.4.) In fact, the record strongly indicates the defense would have been able to establish a foundation for the clips had they not been excluded, including by specific testimony that the video was not altered. Defense counsel represented that the video was not edited, except that the offered clips were excerpted from longer surveillance videos. Defense counsel made available the witness who would have testified about taking the footage.
At one point, plaintiffs' counsel referenced a clip that jumps from a parking lot to a garage and described it as "fishy." The particular exhibit was not identified. Moreover, this description appears consistent with defense counsel's representation that the clips were pulled from longer videos. Plaintiffs' counsel's brief description does not suggest deceptive manipulation. Moreover, defense counsel immediately responded, "If we have [an Evidence Code section] 402 hearing, we can eliminate those issues." An Evidence Code section 402 hearing was scheduled, defense counsel had the witness ready, but plaintiffs' counsel declined to proceed.
We must not allow claims about how evidence could theoretically be manipulated - without reason to believe it may have actually happened - to frustrate the admission of legitimate impeachment evidence. Any piece of evidence can theoretically be fraudulent, and any number of experts might be relevant in investigating the countless possibilities for manipulation. For example, anyone can claim a document used for impeachment was forged or manipulated after signing, and that experts on handwriting, document manipulation, etc., are needed. Or that an audio recording of a prior statement was manipulated or made by someone other than who the proponent claims, and that experts in audio editing or voice recognition are needed.
Quite simply, the majority's reasoning would be the end of sub rosa surveillance evidence. All a litigant needs to do now is make the general observations that all evidence can theoretically be manipulated and that it takes a lot of time to conclusively prove it was not.
The proper and longstanding approach to concerns about the legitimacy of evidence is to require the proponent to establish a foundation. In the present case, that would have included exposing the foundational witness to cross-examination. And only if there was some objective indication suggesting manipulation occurred would some provision need to be given for the retention of an expert on manipulation. Otherwise, it cannot be shown that the testimony of such an expert on the matter is likely to be material, and postponement of a trial in progress is not justified. (Cf. Code Civ. Proc., § 595.4.)
Prejudice
Since the evidence was erroneously excluded, defendants are entitled to a reversal if it is reasonably probable that they would have obtained a more favorable result absent the error. (See Coral Farms, L.P. v. Mahony (2021) 63 Cal.App.5th 719, 733.) Prejudice is rather obvious here because a damages award of anything less than $10 million would have been a result more favorable to the defense. It cannot be denied that it is reasonably possible the jury may have awarded less than $10 million if it had viewed the excluded surveillance.
Conclusion
The problem here is simple: this trial was not fair. The resulting verdict should not stand. I respectfully dissent.
POOCHIGIAN, Acting P. J.