Opinion
A112257
5-9-2007
SONJA R. LUCKETT, Plaintiff and Appellant, v. JOHN AGELOPOULOS, Defendant and Respondent.
NOT TO BE PUBLISHED
Introduction
Plaintiff Sonja Luckett appeals from a judgment following a jury verdict in favor of defendant John Agelopoulos in her personal injury action against him. Luckett contends the (1) trial court improperly admitted testimony of a biomechanical expert. She also contends the trial court erroneously denied her motion for new trial because (2) the closing argument by Agelopouloss counsel constituted prejudicial misconduct, (3) her affidavits established prejudicial juror misconduct, and (4) there was insufficient evidence in support of the verdict. Moreover, she argues that (5) the errors below, though independently harmless, are cumulatively prejudicial and warrant reversal. We shall affirm the judgment.
Facts and Procedural History
On March 7, 2003, Luckett and Agelopoulos were driving in separate lanes on a one-way street. She was in the left lane, and he was in the right lane. Both vehicles were traveling at a speed of 25 to 35 miles per hour. Agelopoulos attempted a lane change but failed to see Lucketts vehicle. A side impact collision occurred.
Luckett testified that the impact moved her car a couple of inches to the left. Her vehicle sustained some sheet metal damage. Agelopouloss vehicle did not sustain any property damage. Airbags did not deploy. Both parties testified that Luckett did not complain of any injuries at the scene of the accident.
On February 11, 2004, Luckett filed a personal injury action against Agelopoulos. She alleged various injuries arising out of the accident, including neck pain, back pain, headaches, twitching in her left eye, light-headedness, pain in her triceps, numbness of both hands, electric shocks radiating from her neck to one of her elbows, right hip and buttock pain, numbness and tingling in one thigh, ankle pain, and discomfort in both of her feet. Moreover, Luckett alleged permanent disability and sought over $12 million in economic and noneconomic damages.
Before the jury trial, Luckett moved to bar the testimony of Agelopouloss expert, Jeffrey Lotz, Ph.D., a biomechanical engineer. The trial court tentatively ruled that it would allow Lotz to testify as to the forces generated in the accident, but it would exclude Lotzs testimony regarding the effect of those forces on discs in the human spine.
At trial, Dr. Kenneth Light, an orthopedic and spinal surgeon, testified for Luckett. Light examined Luckett in May and June of 2003, and ordered MRI scans and X-rays. He testified that her MRI scans showed degenerative protrusions in her spine that could be attributed to trauma or aging. He noted that her X-rays showed loss of coverture of the spine that could be a sign of injury. He opined that low speed accidents can produce substantial injury. On cross-examination, Light admitted that in his June 2003 report, he stated the degenerative changes on the MRI more likely than not preexisted the accident. He also admitted that he saw only minimal restriction in Lucketts movement during the May examination, and normal range of movement by the June exam. He stated that Lucketts main clinical problem was pain, and though she had a pattern of referred pain, there were no neurological deficits to explain the pain. On redirect, Light testified that if Luckett was pain free prior to the accident and had credible pain complaints after the accident, it was likely that the car accident caused Lucketts injury.
Dr. Romana Usman, a licensed physician and internist, also testified for Luckett. Usman treated Luckett from March 17, 2003 until June of 2003. She agreed with Light that no objective explanation existed for the persistence of Lucketts symptoms. However, unlike Light, Usman opined that the accident likely caused some of the findings on the MRI scan. Usman based her opinion, in part, on the fact that Luckett related no prior history of injury or pain. On cross-examination, Usman admitted that she was not told of Lucketts bicycle accident, which occurred on March 2, 2003, five days before the car accident with Agelopoulos.
Additionally, Dr. Edward Katz, a licensed physician and orthopedic surgeon, testified for Luckett. Katz reviewed her medical records and conducted a physical exam of Luckett on December 23, 2004. He testified that her physical exam demonstrated her restricted range of motion in the spine, head, and neck area and some muscle spasms. He found that her MRI demonstrated degenerative changes and her X-rays demonstrated loss of cervical curve, which could be attributed to muscle spasm or the positioning of her body during the X-rays. He stated that the muscle spasms, loss of cervical curve, as well as the degenerative protrusions demonstrated in the MRI, could result in pain symptoms. He stated that it was possible the MRI findings resulted from the March 7th accident. However, on cross-examination, Katz admitted that at the time of his deposition he believed the findings on the MRI preexisted the March 7th accident. He testified that though he believed Lucketts symptoms began after the March 7th accident, he was not given nor did he search for records of Lucketts prior pain and injury history. Furthermore, he admitted trauma from either a bike collision or a car accident could cause Lucketts complaints. He also stated that, per his recommendation, Luckett was examined by a neurologist, Dr. Pavi, and she exhibited a full range of motion and no spasms during that examination.
Dr. Robert Ansel, a licensed physician and neurologist, testified for Agelopoulos. After reviewing the medical and accident reports, interviewing Luckett regarding her medical history, and performing a physical exam of Luckett in October 2004, Ansel agreed with Usman and Light that there were no objective findings for Lucketts symptoms. Ansel agreed with Light that the MRI scans more likely than not showed normal aging-related changes. He stated that Lucketts complaints of global pain, in combination with the lack of objective findings to support her complaints, raised credibility issues. Ansel did testify that he believed Luckett was injured in the accident, but that she sustained only a minor whiplash or muscle strain, which has a six- to eight-week recovery period. However, on redirect, he testified that he formed his opinion based on Lucketts history, and the only history of trauma he had was the March 7th accident. He did not know about the March 2nd bike accident.
Luckett testified on her own behalf. She admitted that she had a bicycle accident on March 2, 2003. According to Luckett, she missed a bicycle pedal and banged her knee. She stated that the only injury arising out of that accident was a badly bruised knee, though the injury was painful enough that she did not report to work and asked to remain on disability leave until March 10, 2003. It was during the disability leave that the car accident between Agelopoulos and her occurred.
Nadine Radovich, manager of the Breast Health Center at California Pacific Hospital, testified for Agelopoulos. Radovich supervised Luckett in March of 2003. She testified that Luckett called her on March 3, 2003, to tell her that she had been involved in a bicycle-to-automobile accident. At trial, Radovich testified that she recalled Luckett mentioning only a knee injury arising from the bicycle accident. However, Radovich was impeached by her deposition testimony, where she stated that Luckett described "head and ankle or knee extremity" injuries arising from the bicycle accident. During the deposition, Radovich distinguished injuries attributed to the bicycle-to-automobile accident versus those attributed to the automobile-automobile accident. The jury was presented with a disability claim form signed by Usman that indicated that Lucketts injuries began one week prior to the March 7th accident.
Dr. Lotz, a biomechanical engineer, testified as an expert for Agelopoulos. After extensive voir dire, the trial court concluded that Lotz was qualified to testify concerning the forces involved in the accident and the types of spinal injuries such forces could generate. After reviewing medical and accident reports, deposition testimony, and research studies involving side-impact collisions, Lotz estimated the side impact between Lucketts and Agelopouloss vehicles resulted in a velocity of four miles per hour. He opined that the left front seat occupant in an accident involving a side impact and this force would move a little to the right and forward and would also experience a velocity of four miles per hour. He equated this level of force to the force experienced from sneezing or coughing. He opined the forces generated in the accident were several orders below those expected to cause damage to the disks and ligaments in the spine. Lotz admitted that the circumstances of an accident can vary risk of injury. He also stated that he could only testify in general terms on the impact of vehicles and resulting structural injuries and was not rendering an opinion on what happened to Luckett and whether she had a diagnosable injury.
On August 15, 2005, the jury returned with a verdict finding that Agelopoulos was negligent but that his negligence was a not a substantial factor in causing harm to Luckett.
On August 18, 2005, Luckett moved for a new trial and for judgment notwithstanding the verdict. Agelopoulos filed oppositions to both motions on September 9, 2005. On September 19, 2005, he requested a 20-day extension of time to file counter-affidavits in support of his opposition to the motion for new trial. The trial court heard oral argument on Lucketts motions on September 23, 2005. On October 14, 2005, it issued an order denying both the motion for new trial and the motion for judgment notwithstanding the verdict.
Luckett filed a timely notice of appeal.
Discussion
I. Testimony of Biomechanical Expert Witness
Luckett contends the trial court erred by allowing Dr. Lotz, a biomechanical engineer, to testify that forces generated in the accident were several orders below those expected to cause damage to the disks and ligaments in the spine. According to Luckett, this testimony constituted medical opinion and Lotz was not qualified to render medical opinion. We disagree.
A. Trial Court Background
Before trial, Luckett moved to exclude Lotzs expert testimony. During the hearing on motions in limine, the trial court expressed concern that testimony regarding the effect of forces on human tissue in the spine entered into an area solely for medical expertise. Based on this concern, the trial court tentatively ruled that it would allow Lotz to testify as to the forces generated in the accident, but it would exclude Lotzs testimony regarding the expected effect of those forces on disks and ligaments in the spine.
At trial, the court allowed Agelopoulos to lay the foundation that would demonstrate why Lotz was qualified to testify to the interplay between the forces generated in the accident and injuries to the spine. An extensive voir dire examination of Lotz followed.
Lotz has a bachelors degree in mechanical engineering from University of California at Berkeley and a masters degree in mechanical engineering from Stanford University. He obtained a Ph.D. in medical engineering at Massachusetts Institute of Technology(MIT)/Harvard, which required the completion of the first two years of medical school at Harvard Medical School, a subinternship in adult medicine at Mount Auburn Hospital, and study in mechanical engineering at MIT.
Lotz was a professor in the Department of Orthopedic Surgery at University of California at San Francisco (UCSF) and served as director of the Orthopedic Bioengineering Laboratory at UCSF. He taught orthopedic residents and Ph.D. students enrolled in bioengineering at a joint program between Berkeley and USCF. He spent 15 years researching trauma and injuries to the spine, focusing on the mechanical and biological factors that cause disk degeneration and back pain. His research has appeared in 90 publications. In addition, he worked in accident reconstruction at Failure Analysis Associates from 1988 to 1992. At Failure Analysis Associates, he studied the kinds of accelerations and forces that an individual in the left front seat of a vehicle would experience during accidents. Lotz was also involved in reviewing published literature involving computer simulations and crash tests with volunteers that focused specifically on the question of automobile accidents and the forces they create on occupants. Explaining the difference between a biomechanical engineers approach and a medical doctors approach to injuries in the spine, Lotz stated that biomechanical engineers are trained to understand the nature of forces and the tolerance of certain tissues to force, while medical doctors are trained to diagnose whether an injury exists and to establish appropriate treatment for those injuries.
Following this extensive voir dire, the trial court permitted Lotz to testify as an expert on the issue of forces generated in the accident, resulting forces on the occupants in the accident, and the tolerance levels for injury to components of the spine. Lotz testified that injuries to spinal ligaments and disks occur when an individual exceeds her range of motion. He reviewed Lucketts medical reports, the accident reports, deposition testimony, and studies of side-impact collisions where vehicles exhibited damage comparable to that resulting from the accident at issue in the lawsuit. Based on this information, he determined the severity of the impact and the effect of the impact on a vehicle occupant.
Lotz estimated the impact as four miles per hour. Based on studies involving volunteers and anthropomorphic dummies in staged side-impact collisions involving this magnitude of impact, Lotz opined that the forces generated in the accident were several orders below those expected to cause damage to the disks and ligaments in the spine. He equated the force from the crash to the force experienced from sneezing or coughing. He further stated that there is not a one-to-one relationship between the forces involved in a vehicular accident and what actually happens to an individual. The circumstances of an accident can vary the risk of injury. Lotz also stated that he could only testify in general terms on the impact of vehicles and resulting structural injuries and was not rendering an opinion on what happened to Luckett and whether she had a diagnosable injury.
B. Legal Analysis
Luckett contends the trial court erred by admitting Lotzs testimony that the forces generated in the accident were below those expected to cause damage to the spine, arguing that the testimony constitutes medical opinion, and that Lotz was not qualified to testify to such matters. We review the trial courts decision to admit Lotzs expert testimony under the abuse of discretion standard. (People v. Catlin (2001) 26 Cal.4th 81, 120 (Catlin).)
Luckett argues that Lotz was not qualified to testify to the effect of forces on the spine and relies on People v. Dellinger (1984) 163 Cal.App.3d 284 (Dellinger). Dellinger, however, does not hold that biomechanical engineers are never allowed to testify regarding the amount of force needed to sustain injury. (Id. at p. 96.) In Dellinger, a biomechanical engineer threw an anthropomorphic dummy down the stairs and, based on that experiment, concluded that the fall down the stairs could not have caused the injuries suffered by the victim. (Id. at p. 290.) The appellate court reversed on the grounds that the experiment the biomechanical engineer relied on was unreliable and not on the grounds that a biomechanical engineer could not testify to the effect of forces used on the human tissue. (Id. at pp. 293-296.) In fact, the Dellinger court noted that it was not delivering an opinion on acceptable uses of biomechanic expert testimony: "We have not undertaken the monumental and inappropriate task of evaluating the legitimacy of the entire field of biomechanics. . . . The field of biomechanics was not on trial here; only the reliability of the two procedures employing biomechanical principles used by Dr. Ward." (Id. at p. 296, fn. 2.)
Agelopoulos relies on People v. Roehler (1985) 167 Cal.App.3d 353 (Roehler), in support of his position that biomechanical engineers can testify as to whether the forces in an accident could cause injury. However, like Dellinger, supra, 163 Cal.App.3d 284, Roehlers holding does not directly address the issue of whether biomechanical engineers can provide expert opinions regarding whether the forces in an accident can cause a particular injury. (Roehler, at p. 390.) Nor did it hold that a properly qualified biomechanical engineer could never provide an opinion as to whether an accident could cause an injury. Roehler involved a murder trial, and the prosecution conducted a number of novel scientific experiments with a dummy and a dory to prove that the victims head injuries could not have been caused by the collision of the boy and the dory as the defendant claimed. (Id. at p. 389.) The trial court had ruled that the engineering experts could testify about the potential force applied to the head of the dummy and the dory, but that only appropriately qualified medical experts could testify concerning the "injuries to the human heads involved." (Id. at pp. 388-389.) The Court of Appeal affirmed, concluding that the trial court did not err in admitting experimental evidence relating to the maximum force that would be applied to the head of a child and the acceleration he would experience if the boat capsized and the child were hit by the boat while rising in the water from immersion. (Id. at pp. 389-390.) The appellate court concluded that the trial court properly admitted the test results "bearing in mind the trial courts delineation between the engineering testimony and the medical testimony." (Id. at p. 390.) The court pointed out that it was not delivering any opinion on the emerging field of biomechanics, the application of engineering principles to biology. (Id. at p. 388.) Moreover, the appellate court observed that "the evidence regarding the dummy was not the basis for the conclusion that the boys head injuries were the result of premeditated murder, but this case is an example of using scientific evidence to corroborate the conclusions of . . . the medical examiner pathologist. (Id. at p. 390.)
We are not aware of any published California authority precisely addressing admissibility of this type of causation testimony by biomechanical engineer experts. Nevertheless, we are guided by Catlin, supra, 26 Cal.4th 81, in which the Supreme Court noted that the trend of the law for many years has been to reject any strict requirement that only medical doctors are qualified to testify on the causes of injury: "Qualifications other than a license to practice medicine may serve to qualify a witness to give a medical opinion. (People v. Villarreal (1985) 173 Cal.App.3d 1136, 1142 [`Because of the dramatic growth of diverse interdisciplinary studies in recent times, often individuals of different nonphysician professions are called upon to give medical opinions or at least opinions involving some medical expertise]; see People v. Fierro (1991) 1 Cal.4th 173, 224; Brown v.Colm (1974) 11 Cal.3d 639, 645 [referring to an `unmistakable general trend in recent years . . . toward liberalizing the rules relating to the testimonial qualifications of medical experts].)" (Catlin, at pp. 131-132.) In Catlin, the court specifically rejected the claim that a clinical toxicologist with a Ph.D. in physiology and pharmacology was unqualified to testify as to medical causation issues because he was not a medical doctor and had no training in physiology. (Ibid.)
Moreover, we are guided by courts in other jurisdictions that have directly addressed the permissible scope of biomechanical engineer testimony. In Smesler v. Norfolk Southern Ry. Co. (6th Cir. 1997) 105 F.3d 299, 305, the Sixth Circuit held that biomechanical engineers are qualified to testify to the forces generated in an accident and the types of injuries those forces would cause in a hypothetical persons body, but such experts are not qualified to render opinions that alleged injuries did or did not result. Similarly, courts in other jurisdictions have allowed biomechanical engineers to testify to forces on the human body; but, have refused to allow such experts to opine the cause of a plaintiffs injuries or whether the alleged injury actually did or did not result. (See, e.g., Combs v. Norfolk Southern Ry. Co. (Va. 1998) 507 S.E.2d 355, 358-359, 256 Va. 490, 495-497; Clemente v. Blumenberg (Supp. 1999) 183 Misc.2d 923, 934, 705 N.Y.S. 792, 800.)
We are persuaded that the trial court did not abuse its discretion by allowing Lotz to testify that the forces generated in the accident were below those expected to cause damage to the disks and ligaments in the spine. "It is fundamental that a trial judge has wide discretion to admit or reject opinion evidence, and that a court of appeal has no power to interfere with the ruling unless there is an obvious and pronounced abuse of discretion on [the judges] part . . . ." (People v. Clark (1970) 6 Cal.App.3d 658, 664.) " `Such abuse of discretion will be found only where " `the evidence shows that a witness clearly lacks qualification as an expert. " [Citation.]" (People v. Williams (1989) 48 Cal.3d 1112, 1136.) "A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (Evid. Code, § 720, subd. (a).)
In the case before us, Lotzs testimony established that he was a credentialed expert in the area of biological effects of forces on disks and ligaments in the spine. He had a Ph.D. in medical engineering, which required completion of the first two years of medical school. He taught classes on the biomechanics of impact to both engineers and orthopedic surgeons. His research and work experience had focused on accident reconstruction and the effect of trauma on tissue in the spine. Thus, although Lotz was a not a medical doctor, his particular background qualified him to provide an opinion as to the injuries that could result from the force generated in the accident. Moreover, Lotzs testimony remained in his field of expertise. He testified to the forces generated in the accident and spoke only in general about the types of injuries that those forces could cause. During voir dire, direct examination, and cross-examination, Lotz explained that he could only testify as to how forces cause injuries in the spine and could not opine as to the cause of Lucketts injuries and whether Luckett was in fact injured.
On this record, the trial court properly exercised its discretion to admit Lotzs testimony.
Two sentences in Lucketts opening brief also imply that Agelopoulos failed to show that correct scientific principles supported Lotzs opinion. It is unclear whether Luckett wishes to argue the underlying reliability of Lotzs scientific technique. If she does so wish, we treat the issue as waived because of her passing reference to the issue, without argument or authority. "[T]he appellate court can treat as waived any issue that, although raised in the briefs, is not supported by pertinent or cognizable legal argument or proper citation of authority. [Citations.]" (Eisenberg et. al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006), ¶ 9:21, p. 9-6.)
II. Substantial Evidence in Support of the Jury Verdict
Luckett contends substantial evidence does not support the jury finding that the March 7th accident with Agelopoulos was not a substantial factor in causing her injuries. We disagree.
The jury was instructed to find Agelopoulos liable if they found both that he was negligent and that his negligence was a substantial factor in causing harm to Luckett. The parties agreed that the jury instructions would define "substantial factor" in accordance with CACI No. 430 (2005 version). At the time of trial, CACI No. 430 provided: "A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of harm." The jury found that Agelopoulos was negligent, but his negligence was not a substantial factor in causing harm to Luckett.
Luckett argues that there was insufficient evidence to support the jury verdict. Where the appellant contends there was insufficient evidence to support the verdict, she must establish that the record, viewed as a whole, provides no substantial evidence to support the verdict. (Piedra v. Dugan (2005) 123 Cal.App.4th 1483, 1489.) Substantial evidence is not simply "any evidence," but evidence that is reasonable, credible, and of solid value. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1633.) In applying the substantial evidence test, the appellate court views the evidence and all reasonable inferences from it in the light most favorable to the respondent. (Id. at pp. 1632-1633.)
Luckett contends substantial evidence does not support the verdict because unrefuted medical testimony established that the March 7th accident was a substantial factor in causing her harm. Several doctors opined that Luckett was injured in the March 7th accident, and none of the medical doctors opined that she was not injured in the subject accident. Consequently, according to Luckett, the jury had to accept the medical testimony regarding causation. She argues that in light of CACI No. 430s definition of causation, the only reasonable verdict would be in her favor. She maintains that the trial court expressed the same view. She draws our attention to oral argument on the motion for new trial and the motion for judgment notwithstanding the verdict, during which the trial court stated: "As I said, I would have to conclude that the jury clearly should have reached a different verdict or decision. [¶] After weighing the evidence, the court is convinced from the entire record, including reasonable inferences from it, that the jury or court clearly should have reached a different verdict or decision."
As an initial matter, Luckett misstates the trial courts view on the sufficiency of evidence in support of the jurys verdict. After reviewing the context in which the trial court made the quoted statement, we conclude that the trial court was merely defining the standard for granting a motion for judgment notwithstanding the verdict. The trial court never expressed the view that the medical testimony required the jury to find the March 7th accident caused Lucketts injuries.
We conclude that the jury was not required to accept the medical testimony on causation. Even uncontradicted testimony in appellants favor does not necessarily conclusively establish the pertinent factual matter; the trier of fact was free to reject any witnesss testimony so long as the rejection was not arbitrary. (Ortzman v. Van Der Waal (1952) 114 Cal.App.2d 167, 170-171.) Moreover, CACI Nos. 219 and 220 instructed the jurors that they could reject expert testimony if they found weaknesses in the factual basis supporting the experts opinion. CACI No. 219 provides, in relevant part: "You do not have to accept an experts opinion. . . . In deciding whether to believe an experts testimony, you should consider: [¶] . . . [¶] (2) The facts the expert relied on." CACI No. 220 similarly instructs the jury regarding the weight to give to expert opinions, and provides in relevant part: "In determining the weight to give the experts opinion that is based on the assumed facts, you should consider whether the assumed facts are true."
The jury, following these instructions, reasonably rejected the medical testimony regarding causation because they found weaknesses in the facts on which those opinions were based. It is true that several medical doctors opined that Luckett sustained injuries in the March 7th accident and none of the medical doctors opined that she did not sustain injury. However, the doctors who rendered opinions on causation specifically stated that their opinions were based on the history they had been given, i.e., that she had no complaints of pain before the March 7th accident. The doctors were not told of an earlier bicycle accident that injured Luckett and, thus, did not consider whether her injuries were attributable to the earlier bicycle accident. Consequently, the jury could find that these opinions were based on flawed facts and could reject their medical opinions that Luckett sustained some injury as a result of the March 7th accident.
Moreover, though none of the medical doctors opined that Luckett was not injured in the March 7th accident, several medical doctors opined that Lucketts pain could be attributable to aging-related spinal protrusions rather than to trauma from the March 7th accident. Dr. Light testified that, in his June 2003 report, he found that the degenerative protrusions demonstrated by the MRI more likely than not were aging-related changes that preexisted the March 7th accident. Dr. Katz admitted that, at the time of his deposition, he believed that the MRI findings preexisted the March 7th accident. Dr. Ansel agreed with Light and Katz, that the MRI scans more likely than not showed normal aging-related changes.
We find that the record contains substantial evidence to support the jury verdict. Lay testimony can be sufficient against expert testimony to support a judgment. (Ortzman v. Van Der Waal, supra, 114 Cal.App.2d at pp. 170-171.) Ample evidence, from lay and expert witnesses, supports the jury finding that the March 7th accident was not a substantial factor in causing Lucketts injuries. Nadine Radovich testified that a few days before the March 7th accident, Luckett was involved in a serious bike collision involving a car hitting Luckett while Luckett was riding her bike. The records showed that Lucketts injuries from the bike collision were serious enough that she requested leave for disability, and that she was still on disability leave from those injuries at the time of accident with Agelopoulos. Credible evidence established that the March 7th accident, unlike the bicycle accident, involved a minor collision unlikely to cause injuries. Agelopouloss testimony depicted the March 7th accident as a minor side impact collision. Lotz, a biomechanical engineer, reviewed the records and deposition testimony and opined that the forces generated equaled the force of a sneeze or a cough and, thus, were below those expected to cause injury to spinal tissue. Lucketts claim that the March 7th accident was a substantial factor in causing her injuries depended on her credibility, and the jurors presumably did not find her a credible witness. On this record, it was reasonable for the jury to find that Lucketts injuries were completely attributable to the earlier bike accident and/or to the effects of aging rather than the March 7th accident involving Agelopoulos.
Substantial evidence supports the jury determination that Agelopouloss negligence was not a substantial factor in causing Lucketts injury.
III. Juror Misconduct
Luckett contends that the trial court erred when it denied her motion for a new trial motion on the grounds of juror misconduct. She argues that the facts alleged in her affidavits establish a prior relationship between Agelopouloss counsel and juror No. 22. Consequently, according to Luckett, there existed a strong probability of juror bias and juror misconduct during the voir dire examination. As a threshold matter, she argues that Agelopouloss counter-affidavits were erroneously considered because they were filed after the deadline set forth in Code of Civil Procedure section 659a. Substantively, she argues that, in any event, her affidavits were sufficient against Agelopouloss counter-affidavits to require the trial court to grant the new trial motion. We disagree on both counts.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
A. Alleged Jury Misconduct
Jury selection occurred on August 9, 2005. During voir dire examination, juror No. 22 stated that she did not know the attorneys or the firms involved in the case. It was brought out during voir dire that juror No. 22 was married to R.B., a well-known Bay Area plaintiffs attorney. Juror No. 22 was selected to sit on the jury. On August 15, 2005, the jury returned with a verdict finding that Agelopoulos was negligent but that his negligence was a not a substantial factor in causing harm to Luckett.
Luckett filed a motion for a new trial based in part on allegations of juror misconduct. Her supporting affidavits declared the following: After the verdict was read, Luckett and her counsel observed all the jurors except for juror No. 22 exit the courtroom. As they watched, juror No. 22 quickly approached counsel for Agelopoulos, Daniel Winters, and his partner, John Krug. They observed Krug greet juror No. 22 by enclosing her hand between his hands and shaking it. They heard juror No. 22 congratulate Winters and Krug, and also heard Winters and Krug reply, "Say hi to R[.] for us." According to Luckett, the affidavits established that juror No. 22 and Agelopouloss counsel knew one another before trial. She argued that the prior relationship indicated juror bias and also demonstrated that juror No. 22 gave a false answer during voir dire examination by denying that she knew counsel or the firms involved in the case.
Agelopoulos filed an opposition to the motion for a new trial on September 9, 2005, and attached supporting counter-affidavits from his counsel, Winters, and his counsels partner, Krug. The affidavits declared the following: Winters and Krug had never met juror No. 22 until after the verdict was read. Before trial, they were professionally acquainted with juror No. 22s husband, R.B. R.B. had been opposing counsel in several cases where Winters or Krug represented the defendants, and R.B. had acted as arbitrator or mediator on some of Winterss and Krugs cases. After the jury verdict was read, the trial court informed the jury that they were free to have discussions with the trial attorneys. As the jurors exited the courtroom, Winters and Krug thanked several jurors, including juror No. 22. Winters and Krug told juror No. 22 to tell her husband they said "hi."
B. Timeliness of Opposing Affidavits
On August 18, 2005, Luckett moved for a new trial based in part on the alleged misconduct of juror No. 22. In support of her allegations and motion, Luckett attached declarations from herself, her counsel, and an employee of her counsel. Agelopoulos filed an opposition to the motion for a new trial on September 9, 2005. Attached to the opposition to the motion for a new trial were declarations from Agelopouloss counsel, Winters, and Winterss partner, Krug. Agelopouloss counter-affidavits were filed 22 days after service of Lucketts declarations.
Luckett filed her reply to Agelopouloss opposition to the motion for a new trial on September 13, 2005. In her reply, Luckett argued that Agelopouloss counter-affidavits were untimely because they were filed after the 10-day limit for service and filing set by section 659a. Consequently, according to Luckett, the late counter-affidavits should be disregarded. On September 19, 2005, Agelopoulos requested from the trial court an extension of time to file counter-affidavits in support of his opposition to the motion for new trial. He argued that the court should grant the retroactive extension and consider his counter-affidavits because the untimeliness of the counter-affidavits resulted from clerical error, and a miscarriage of justice and waste of resources would result if the counter-affidavits were disregarded and a new trial resulted. Agelopouloss request for an extension of time to file was filed 32 days after service of Lucketts supporting affidavits.
On October 14, 2005, the trial court issued an order denying the motion for new trial. The order read as follows: "The Court read the papers submitted by counsel for both parties and heard oral argument. The Court took the matter under submission. [¶] GOOD CAUSE APPEARING, IT IS HEREBY ORDERED that the motion for a new trial . . . is denied."
Section 659a governs the deadlines regarding filing and service of affidavits and counter-affidavits in support of a motion for a new trial. Section 659a provides: "Within 10 days of filing the notice, the moving party shall serve upon all other parties and file any affidavits intended to be used upon such motion. Such other parties shall have ten days after such service within which to serve upon the moving party and file counter-affidavits. The time herein specified may, for good cause shown by affidavit or by written stipulation of the parties, be extended by any judge for an additional period of not exceeding 20 days." (§ 659a.) If a court grants a partys request for an extension of time, then that party has 30 days, rather than 10 days, within which to serve and file his or her affidavits or counter-affidavits supporting the respective motion or opposition thereto.
Luckett concedes that Agelopouloss counter-affidavits were filed and served within 30 days of service her supporting affidavits and, thus, timely if an extension of time to file was granted by the trial court. She argues that Agelopouloss counter-affidavits are untimely because his request for an extension of time to file the counter-affidavits occurred after the 30-day aggregate period had passed. According to Luckett, since Agelopouloss counter-affidavits were served and filed after the 10-day limit set forth in section 659a, he needed the trial court to grant him an extension of time to file before the counter-affidavits could be considered. Agelopoulos did request an extension of time to file his counter-affidavits, but he submitted his request on September 19, 2005, 32 days after service of Lucketts affidavits. Luckett contends section 659a, as clarified by Erikson v. Weiner (1996) 48 Cal.App.4th 1663 (Erikson), required that Agelopoulos both serve her with his counter-affidavits and request an extension of time to file within the aggregate 30-day period. Thus, although his counter-affidavits fell well within the aggregate 30-day period, Luckett argues that his untimely request for an extension rendered the counter-affidavits untimely and the trial court erred in considering the documents.
Luckett misinterprets the holding in Erikson, supra, 48 Cal.App.4th 1663. The Erikson court was concerned with whether a trial court had discretion to accept an affidavit filed after the 30-day aggregate period had passed. (Id. at p. 1671.) The appellate court held that the trial court did not have discretion to extend the time period for filing counter-affidavits beyond 30 days from the date of service of the moving partys affidavits. (Id. at pp. 1671-1672.) Erikson does not address whether a court can accept affidavits filed within the 30-day aggregate period where the request for an extension of time was filed after the 30-day period ended. Moreover, the rationale behind Eriksons holding suggests that Erikson should not apply to limit a trial courts discretion in accepting affidavits filed within the mandatory 30-day period where the request for an extension was filed after the 30-day limit. Explaining the reasoning behind its decision, the Erikson court noted that extending the time to file affidavits beyond the 30-day period encroached upon the opposing partys ability to respond or the trial courts ability to deliberate. (Id. at p. 1672.) Where a party has filed an affidavit within the 30-day period but failed to request the extension until after the period has ended, the ability of the opposing party and the trial court to review and respond to the affidavit are not disturbed.
We conclude that the trial court properly considered Agelopouloss counter-affidavits. Section 659a gives the trial court discretion for good cause to extend the filing period to an aggregate of 30 days from the date of service of the moving partys supporting affidavits. (§ 659a; Erikson, supra, 48 Cal.App.4th at pp. 1671-1672.) Moreover, a trial court has discretion to grant retroactive extensions. (See Pollock v. Standard Oil Co. (1967) 256 Cal.App.2d 307, 310 ["Although declarations supporting a motion for new trial must be filed within 10 days after service of the notice of intention, the court may extend that time not to exceed 20 days (Code Civ. Proc., § 659a), and the court can relieve from default to the same extent that it could have granted extension in advance (Boynton v. McKales [(1956)] 139 Cal.App.2d 777, 782)"].) Here, the counter-affidavits were filed 22 days after service of Lucketts affidavits, well within the 30-day aggregate period mandated by section 659a. Agelopoulos requested an extension of time for filing his affidavits and explained by affidavit that the untimely counter-affidavit resulted from clerical error and that the failure to consider the counter-affidavits could result in a retrial and gross waste of resources. The trial courts order denying Lucketts motion for a new trial indicates that the trial court used the discretion given to it under section 659a, found good cause to grant a retroactive extension of time, and considered affidavits from both parties in rendering its decision.
C. No Abuse of Discretion in Finding No Juror Misconduct
The trial court heard oral argument on Lucketts motion for a new trial on September 23, 2005. During the hearing, the trial court stated: "Regarding the juror bias, I am satisfied from the declarations of Mr. Winters and his partner that they didnt know the juror, had no prior relationship with the juror, and that any conversation with her about her husband does not indicate that the juror was bias[ed]. It was a form of acknowledging that they know her husband from professional contact, and they were being social in saying, Say hello to Mr. [B.]" On October 14, 2005, the trial court issued an order denying the motion for new trial.
Luckett contends the trial court erred when it denied her motion for a new trial because her affidavits established that juror No. 22 and Agelopouloss counsel had a prior relationship suggesting juror No. 22 was biased and answered falsely during voir dire examination. We review the trial courts decision under the abuse of discretion standard. (People v. McPeters (1992) 2 Cal.4th 1148, 1175.)
"The trial judge has a sound discretion in granting or denying a motion for new trial even though the motion is based on affidavits. In the absence of clear abuse of such discretion the denial of a motion for new trial, which is based on affidavits, will not be disturbed on appeal." (Balkwill v. City of Stockton (1942) 50 Cal.App.2d 661, 671.) "The trial judge is in a much better position than an appellate court to determine whether the verdict in a case is probably due wholly or in part to such alleged misconduct . . . and his conclusion in the matter should not be disturbed unless, under all the circumstances appearing, it is plainly wrong." (Lafargue v. United Railroads (1920) 183 Cal. 720, 724.)
We conclude that the trial court did not abuse its discretion when it found that juror No. 22 was not biased and did not engage in misconduct during voir dire examination. A juror may be accepted despite a showing of acquaintance with a partys counsel if the juror satisfies the court that she will act fairly and impartially. (See, e.g., Rather v. City & County of San Francisco (1947) 81 Cal.App.2d 625, 637-639 [no juror misconduct where juror, during voir dire examination, denied knowing any of the attorneys in the City Attorneys office; affidavits after trial suggested he knew attorneys who worked in that office, but juror had stated he would act fairly and impartially during voir dire examination].) Here, the trial court found that the affidavits proved only a professional acquaintance between juror No. 22s husband and Agelopouloss counsel and was satisfied that juror No. 22 acted fairly and impartially. On this record, we cannot conclude that the trial courts conclusions were "plainly wrong." The facts in Lucketts affidavits showed, at most, a warm handshake between juror No. 22 and Krug. Juror No. 22, during voir dire examination, admitted that her husband was R.B. Her candor during voir dire examination reasonably satisfied the trial court that she was unbiased and did not respond falsely during voir dire examination.
We are satisfied that the trial court did not abuse its discretion in denying Lucketts motion for a new trial on grounds of juror bias and misconduct.
IV. Misconduct of Counsel During Closing Argument
Luckett contends that Agelopouloss counsel made improper comments during closing argument that amounted to prejudicial misconduct. We conclude that Lucketts failure to request a curative admonition has waived the issue on appeal.
A. Closing argument
During closing argument, Agelopouloss counsel stated the following: "The court personnel have to treat the individuals in the courtroom fairly, and the parties need to make fair demands and fair presentation of evidence. Ive been a lawyer for 32 years, and the claims here are the most outrageous that I have heard in that time." The court immediately admonished counsel by stating, "Mr. Winters, that is not appropriate argument." Luckett did not subsequently request a curative admonition. Agelopouloss counsel finished his closing argument and did not make other improper comments.
B. Legal Analysis
Luckett contends that closing argument from Agelopouloss counsel constituted prejudicial attorney misconduct. Generally, a claim of attorney misconduct is not assertable on appeal unless the record shows that appellant made a timely and proper objection and requested a curative admonition at trial. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 794-795; Horn v. Atchinson, T. & S.F. Ry. Co. (1964) 61 Cal.2d 602, 609-610.) The absence of a request for curative admonition does not forfeit the issue for appeal if the misconduct was so prejudicial that it could not have been cured by a cautionary instruction to the jury or the court immediately overruled the objection to alleged counsel misconduct and, as a consequence, opposing counsel did not have an opportunity to request a curative admonition. (Cassim v. Allstate Ins. Co., at pp. 794-795.)
Luckett concedes that she did not object to or seek a curative admonition for the statement from Agelopouloss counsel. She argues that an objection was impossible because the trial court quickly reprimanded Agelopouloss attorney after the statement and, thus, did not allow her an opportunity to object. She relies on Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 319 (Sabella), to further argue that counsels comment was so prejudicial that reversal is required, even in the absence of an objection and a request for admonition.
Assuming counsels statement was improper, we conclude that Lucketts failure to request a curative admonition waived the issue on appeal. The trial courts quick reprimand to Agelopouloss counsel did obviate the need for an objection. However, there was sufficient time after the trial courts reprimand for Luckett to request a curative admonition from the trial court. Moreover, counsels comment was not so prejudicial that an admonition to the jury could not have cured the problem. As the Supreme Court noted in Horn v. Atchison, T. & S.F. Ry., supra, 61 Cal.2d 602: " `It is only in extreme cases that the court, when acting promptly and speaking clearly and directly on the subject, cannot, by instructing the jury to disregard such matters, correct the impropriety of the act of counsel and remove any effect his conduct or remarks would otherwise have. [Citation.]" (Id. at p. 610.) In the case before us, counsel made a single improper statement, and the trial court could have easily cured any prejudice resulting from the comment by reminding the jury that counsels statement was not evidence.
Lucketts reliance on Sabella, supra, 70 Cal.2d 311, is misplaced. In Sabella, repeated improper argument by the plaintiffs counsel during opening and closing argument presented a strong case for waiving the procedural requirements for appeal. (Id. at p. 320.) Nevertheless, the Supreme Court affirmed the judgment on the grounds that the defendant did not make a proper objection and request for curative admonition preserving the issue for appeal. (Id. at pp. 320-321.) In the case before us, the facts present a much weaker case for waiving the procedural requirements regarding appealing a claim of attorney misconduct. Agelopouloss counsel made a single improper statement, was reprimanded by the trial court, and did not aggravate the problem further. Thus, we cannot conclude that this case represents one of the "extreme cases" where the procedural requirements should be waived.
Alternatively, examining the entire case, including the entirety of counsels closing argument and the instructions delivered to the jury, we conclude that the misconduct of Agelopouloss counsel was harmless. First, counsel made a single improper comment. (See People v. Pensinger (1991) 52 Cal.3d 1210, 1250 [improper comment held harmless error because it was "isolated" and "not repeated"].) Second, the trial court quickly admonished Agelopouloss counsel for the improper statement, thus reducing the prejudicial effect of the comment. Third, the jury instructions further ameliorated the effect of counsels comment. The trial court instructed the jury in accordance with CACI No. 106: "What attorneys say during the trial is not evidence. In their opening statements and closing arguments, the attorneys will talk to you about the law and the evidence. What the lawyers say may help you understand the law and the evidence, but their statements and arguments are not evidence." We presume the jury follows its instructions and that its verdict reflects the legal limitations those instructions imposed. (See Saari v. Jongordon Corp. (1992) 5 Cal.App.4th 797, 808.) Consequently, Luckett has failed to show that it was reasonably probable that but for counsels remark she would have received a more favorable result. (See Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 802 [misconduct by counsel during closing argument constitutes prejudicial error if appellant proves it was reasonably probably appellant would have received a more favorable result in the absence of challenged comment].)
Luckett has not established that a proper objection and request for a curative admonition were unnecessary here. She has also waived the issue on appeal. In any event, she has failed to show any prejudice arising from counsels comment.
V. Cumulative Effect of Alleged Errors
Luckett contends that, even if the trial courts errors independently would be deemed harmless, the errors are cumulatively prejudicial and warrant reversal. As discussed ante, we conclude that the trial court did not commit error on issues that Luckett appeals. Consequently, there could be no cumulative prejudice.
Disposition
The judgment is affirmed. Agelopoulos is awarded his costs on appeal.
We concur:
Haerle, J.
Lambden, J.