Opinion
A164628 A166029
10-27-2023
CARISSA COPELAND, Plaintiff and Respondent, v. MOGOS ZEREGABER BEHRE et al, Defendants and Appellants.
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. CGC16550659
TUCHER, P.J.
Mogos Behre and DeSoto Cab Co. appeal from a judgment after jury trial awarding Carissa Copeland damages for cumulative injuries she suffered as a result of three car accidents that occurred between 2012 and 2014. Appellants challenge the sufficiency of the evidence to support the judgment and contend the trial court made a series of prejudicial errors with respect to the causation element of Copeland's negligence claim. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Car Accidents
In December 2012, Copeland was involved in an accident on the Golden Gate Bridge (the bridge accident). Copeland was driving a 2008 Lexus SUV during morning rush hour when she was hit from behind, causing her car to spin, and was then struck by a truck. She was frightened and traumatized and when highway patrol officers arrived, they drove her car from the scene and gave her a ride home. Copeland's car was towed to a repair shop, but Copeland was dissatisfied with the work and ultimately her insurance company "totaled it out."
At the scene of the bridge accident, Copeland experienced a headache and a tingling sensation running down her arm. Later that day, she went to a chiropractor who recommended a neck strengthening exercise. Copeland also saw her primary care physician, Dr. Savant, who diagnosed her with muscle spasms for which he prescribed medication and rest. During a followup visit a few weeks later, Copeland reported persistent symptoms including headaches and back pain that made it difficult to sleep. Savant referred her to a specialist who diagnosed her with a cervical sprain.
In January 2013, Copeland returned to work after a prearranged holiday vacation. Copeland was employed by Prudential Financial, as an "external annuity wholesaler," which was a stressful, demanding job that Copeland enjoyed and performed well. But after the bridge accident, Copeland continued to experience headaches that made it difficult for her to fulfill work commitments. Between March and July 2013, she took a temporary disability leave and saw several health care providers who treated her for neck pain and headaches. When she returned to work in July, Copeland was "[s]ignificantly better." She no longer suffered daily headaches, and although there was some lingering pain, she was "feeling a lot better" and "was able to do [her] job and do it well." Indeed, she was named a top seller in her field for the 2013 calendar year.
On the afternoon of March 6, 2014, Copeland was involved in an accident while driving north through San Francisco on Highway 101 (the Highway 101 accident). Copeland was driving her 2010 Lexus SUV in stop and go traffic when she was hit from behind by a DeSoto cab driven by appellant Behre. At trial, Copeland testified that she was "hit hard" and that she felt the impact, but the accident "wasn't near as bad" as the bridge accident. She immediately had a headache, and she testified that she reported this fact to the officer who responded at the scene, although it was not included in his report. She was in shock and very worried because she felt that she was almost recovered from the bridge accident when "it happened again." She also experienced other symptoms including body soreness and pain in her "SI joint," which she attributed to being jarred during the accident. After the officer took his report, Copeland drove herself home, cancelling a work appointment because she did not feel up to it. The following week, Copeland saw her primary care doctor about pain from the Highway 101 accident. According to Dr. Savant's records, Copeland complained of neck and back pain. Savant concluded that symptoms Copeland reported after the bridge accident were exacerbated by the Highway 101 accident. Between April and July 2014, Copeland took another temporary disability leave from her job.
In December 2014, Copeland was involved in another accident while driving a friend's car through an intersection on Van Ness Avenue in San Francisco (the Van Ness accident). After waiting for a green light, Copeland was traveling northbound through the intersection when she collided with an eastbound driver traveling at a low speed, who was attempting to clear the intersection after the light turned red. A police officer who had been standing nearby approached Copeland, asked if she was alright and escorted her to the sidewalk. She complained of neck pain and the officer advised her to go to the hospital by ambulance. She complied because she was in shock and experiencing pain. At the hospital, Copeland received medication to help her calm down, and stayed for an hour or two until her heart rate normalized. Two days after the accident, Copeland saw her primary care doctor and reported experiencing the same type of symptoms that she had reported after the two prior accidents. Between February and July 2015, Copeland took another short-term disability leave from her job.
After Copeland returned to her job, she struggled to do her work. In 2016, she was placed on performance-related probation, and in July of that year she took another disability leave. Copeland never returned to work, and in 2017 Prudential eliminated her position. In 2019, the Social Security Administration classified her as permanently disabled.
The trial court denied Copeland's motion to take judicial notice of the Social Security Administration's report finding Copeland is disabled. In addition to the hearsay problem, the court observed that the jury was not being asked to decide whether Copeland meets disability eligibility requirements but rather whether Copeland suffered harm within the meaning of California negligence law. Both counsel agreed, however, that Copeland could testify that she has been deemed disabled by her employer and Social Security in order to explain her current situation and why she was no longer working.
II. The Present Action
Copeland filed separate lawsuits relating to the three accidents. She settled her claims against parties involved in the bridge and Van Ness accidents. In September 2021, Copeland's negligence case against appellants was tried to a jury.
A. The Parties' Contentions
Copeland's theory of liability was that the other driver in all three of her accidents was negligent and the "compound effects" of those accidents was to render her totally disabled. She argued that although the bridge accident was the most serious, the Highway 101 accident was also a substantial factor and played a 10 percent role in bringing about her disability. For their part, appellants conceded that Behre was negligent and liable for causing the Highway 101 accident, but they disputed "caus[ing] any additional injury and damages to the plaintiff." Appellants' trial theory, presented during their opening statement, was that the bridge accident and Van Ness accident caused Copeland's damages, and that the Highway 101 accident was not a substantial factor in causing her alleged injuries and permanent disability.
B. Expert Evidence
To prove her claim that she suffered an indivisible injury caused by the three car accidents, Copeland elicited testimony from multiple expert witnesses, many of whom were also her health care providers.
Dr. Newkirk is a neurologist who first examined Copeland in 2017. At that time, Copeland was suffering from multiple persistent symptoms that had deteriorated after each of the three accidents, and she was not responding to treatment. Newkirk testified that when he examined Copeland a few weeks before trial, she continued to have these conditions, which include a semi-continuous chronic headache, cognitive problems, acute numbness in her arms and hands, chronic lumbar pain, and sacroiliac joint pain in the sacrum. Newkirk testified that Copeland's chronic headache condition, which includes a cognitive component and a toxic condition in the brain, is permanent. He also opined that Copeland suffers from thoracic outlet syndrome, a neurovascular compression syndrome, which is permanent but can be modified or reduced with treatment.
Newkirk testified that Copeland's conditions prevent her from doing any job "that's listed in the dictionary of occupational titles," explaining that she cannot sit or stand long enough to complete a task, she has limited ability to use her arms to reach forward, and doing so might then disable her for days following the event. Therefore, Newkirk opined that Copeland "cannot be relied on ever again to be present and accounted for on any type of job." And he testified that the Social Security Administration's conclusion that Copeland is totally disabled from meaningful employment is "[a]bsolutely correct."
Newkirk offered the opinion that the cause of Copeland's disability is "multifactorial." Although the bridge accident was the "major inciting cause," Copeland was recovering until the Highway 101 accident, which occurred when "her recovery was clearly incomplete," and, because of vascular changes occurring after that second accident, "her recovery was halted at that point." Thus, although the additional physical injuries "were not great," the second accident was "in essence the straw that broke the camel's back," Newkirk explained: "The additional disability that occurred in the second and then again in the third [accident] stopped the recovery process, and at that point- and it was proved through many efforts-she was disabled enough that she was unable to return to any form of useful or gainful employment."
Newkirk testified that the overlapping nature of Copeland's injuries complicates any effort to separate out what accident caused which harm to Copeland's body. He opined that a minor traumatic brain injury and changes that led to Copeland's thoracic outlet syndrome "clearly were set up by the first accident," and then the second accident "converted" her to a "more severe traumatic brain injury syndrome," which was further complicated by posttraumatic stress disorder. Newkirk described Copeland as an "eggshell candidate," meaning she had a preexisting disability that made her significantly more fragile than a normal individual, thus causing her to suffer a far greater disability when she was injured during the second accident. And for the same reason, Newkirk opined, the second accident made Copeland more vulnerable to injuries in the third accident. Ultimately, Newkirk concluded that the Highway 101 accident caused some injury to Copeland and opined that it was a 10 percent contributing cause of her current level of disability.
Other medical providers who treated Copeland concurred with Newkirk's conclusions. Dr. Werden, a physician and radiologist, testified that Copeland has thoracic outlet syndrome. And Dr. Wroolie, a clinical psychologist, testified about Copeland's cognitive deficits. Newkirk's opinion that Copeland has a cumulative injury was echoed by Copeland's primary care physician, Dr. Savant, who testified that the Highway 101 accident "exacerbated" all of Copeland's symptoms from the bridge accident. When asked to assign a percentage responsibility for Copeland's injury to each of the three accidents, Savant declined to do so. Offering the analogy of a bruise that becomes more severe when the spot is hit a second time, Savant opined that the Highway 101 accident "definitely" played a role in causing the overall disability. Copeland's chiropractor, Dr. Colman, opined similarly that "the compound effects of all three accidents have contributed to [Copeland's] current condition and disability."
Dr. Wroolie's testimony also addressed causation, although not in a definitive way. She opined that Copeland's cognitive issues are consistent with her having suffered a series of concussions. Wroolie explained to the jury that a concussion does not require a direct blow to the head but can occur "[w]henever there's a force going forwards or backwards," and in this case, she could not determine which accident caused Copeland's cognitive problems, opining that "there would be some cumulative effects over time with multiple accidents, just like [with] football players. It's accumulation; it's not just once, unless it's a real blow, a real traumatic brain injury. But it's usually an accumulation over multiple events."
At trial, Copeland also presented evidence to show that the Highway 101 accident was itself an injury-causing event. Her testimony about pain and other problems she experienced after that accident is summarized above. In addition, Dr. Kelkar, a mechanical engineer and accident reconstruction expert, formulated opinions about the Highway 101 accident based on his review of available evidence, which included dashcam video from the taxi, accident reports, and deposition testimony. Kelkar testified that Behre was traveling at approximately 22 miles per hour and then slowed down to between 13 to 15 miles per hour when he hit Copeland's car. Kelkar did not attempt to determine whether the accident actually caused injury, but he testified that it was a potentially injury-causing event.
Copeland called Dr. Allman, an expert economist, to testify about her earning capacity and wage-related losses. Based on evidence of Copeland's earnings while she was employed at Prudential, Allman opined that by the time of trial Copeland had suffered $2.8 million in lost wages. Allman also opined that future wage loss totaled more than $9.1 million, based on her 18-year statistical "work life expectancy."
Appellants called two expert witnesses at trial. Michael Mahoney, a former police officer, testified as an accident reconstruction expert for the defense. Mahoney offered his opinion that Behre was traveling between 10 and 12 miles per hour when he hit Copeland's car, a speed that was too low for the Highway 101 accident to be considered an injury-producing accident. Dr. David Bradshaw, a licensed physician, offered his opinion about Copeland's "Medical issues," based on a medical exam he conducted in September 2017. Bradshaw opined that Copeland had been "overtreated" by third rate practitioners, who treated her as though she had acute curable conditions instead of managing her chronic problems. Bradshaw also believed that, although Copeland is not a malingerer, she has psychological issues and a "learned behavior problem."
C. Jury Instructions
Because appellants conceded Behre's negligence, the jury was instructed with a modified version of CACI 424, which stated: "Ms. Copeland claims that she was harmed by defendants' negligence. Defendants agree that they were negligent, but dispute the nature and extent of Ms. Copeland's claimed injuries. [¶] To establish Ms. Copeland's claim against defendants, she must prove both of the following: [¶] 1. That she was harmed; and [¶] 2. That defendants' negligence was a substantial factor in causing Ms. Copeland's harm."
On the disputed issue of causation, the jury was instructed with CACI 430, which states: "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 the harm." The court also gave CACI 431, which states: "A person's negligence may combine with another factor to cause harm. If you find that defendants' negligence was a substantial factor in causing Ms. Copeland's harm, then defendants are responsible for the harm. Defendants cannot avoid responsibility just because some other person, condition, or event was also a substantial factor in causing Ms. Copeland's harm."
The court instructed the jury regarding appellants' defense theory- that other nonparties caused Copeland's alleged harm-by giving a modified version of CACI 406, which stated: "Defendants Behre and DeSoto claim that the other drivers involved in the accidents of December 2012 (Golden Gate Bridge) and of December 2014 (Bay and Van Ness in San Francisco) contributed to Ms. Copeland's harm. The parties agree that those drivers were negligent and caused the accidents. [¶] Defendants Behre and DeSoto have the burden of proving that the negligence of these nonparties was a substantial factor in causing plaintiff's harm. [¶] If you find that the negligence of those nonparties was a substantial factor in causing Ms. Copeland's harm, you must then decide how much responsibility each has by assigning percentages of responsibility to each person listed on the verdict form. The percentages must total 100 percent. [¶] You will make a separate finding of Ms. Copeland's total damages, if any. In determining an amount of damages, you should not consider any person's assigned percentage of responsibility."
D. Jury Verdict
The jury returned a special verdict, which answered five (5) questions. Pursuant to the parties' stipulation, the jury was instructed to answer "yes" when asked (1) whether Behre was negligent; and (2) whether Behre was acting within the scope of his employment when the Highway 101 accident occurred. Question (3) asked the jury whether Behre's negligence was a substantial factor in causing Copeland's harm, and the jury answered "Yes." Question (4) on the special verdict form asked the jury to calculate Copeland's total damages by listing distinct amounts for separate categories of past and future economic and noneconomic damages. Past economic damages, including lost earnings and medical expenses to date, totaled more than $3 million, and Copeland's total future economic damages exceeded $8 million. The jury found that Copeland's past noneconomic damages were $200,000 and calculated her future noneconomic damages as $100,000. Copeland's total damages were $11,452,968.24.
Question (5), which was included on the verdict form at appellants' request, was to be answered in the event Copeland proved "any damages." This question asked the jury to assign a percentage of responsibility for Copeland's harm to each driver who caused one of the accidents at issue in this case. The jury answered question (5) by assigning 80 percent responsibility to the driver who caused the bridge accident, 3 percent responsibility to Behre (the driver who caused the Highway 101 accident), and 17 percent responsibility to the driver who caused the Van Ness accident.
After the jury verdict was returned, the trial court found that appellants are jointly and severally liable for Copeland's economic damages pursuant to Civil Code section 1431.2. The court found, among other things, that Copeland's allegations were sufficient to plead an indivisible injury, the jury was instructed correctly on that theory of liability, and the jury returned a verdict in Copeland's favor by finding that Behre was a substantial factor in causing Copeland's harm.
After deducting amounts Copeland had collected from the settling defendants, the court entered judgment against appellants in the total amount of $10,855,221.24. The court denied appellants' motion for judgment notwithstanding the verdict (JNOV) and motion for a new trial. Appellants' separate appeals from the judgment and an amended judgment awarding costs to Copeland were consolidated by this court.
DISCUSSION
Appellants contend the trial court erred by denying their motion for JNOV because the damages award for Copeland's lost earnings is not supported by substantial evidence that appellants caused Copeland's longterm disability. Alternatively, appellants argue they are entitled to a new trial due to a series of errors pertaining to the causation element of Copeland's negligence claim. Because all of appellants' claims implicate the rules for proving causation in a negligence case, we begin with a brief overview of the pertinent law.
I. Causation Element of Negligence
"Causation, as an element of negligence, includes both cause-in-fact and proximate-legal causation: '. . . the former reflects the necessity of a sufficient factual nexus between the negligent conduct and the injury while the latter represents the legal determination encompassing all the ill-defined considerations of policy which go to limit liability once cause in fact has been established.'" (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1414-1415.)
"Whether a defendant's conduct actually caused an injury is a question of fact [citation] that is ordinarily for the jury [citation]. The two widely recognized tests for establishing cause in fact are the 'but for' rule, which asks whether the injury would not have occurred but for the defendant's conduct, and the rule set forth in the Restatement Second of Torts section 431, subdivision (a), which asks whether the defendant's conduct was a 'substantial factor in bringing about the harm.'" (Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 252.) "However the test is phrased, causation in fact is ultimately a matter of probability and common sense." (Id. at p. 253.)
California uses the substantial factor standard for cause-in-fact determinations in negligence cases. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052-1053 (Mitchell); Greathouse v. Amcord, Inc. (1995) 35 Cal.App.4th 831, 837; see Viner v. Sweet (2003) 30 Cal.4th 1232, 1239 (Viner) [" 'California has definitively adopted the substantial factor test of the Restatement Second of Torts for cause-in-fact determinations' "].) In Mitchell, our Supreme Court articulated two primary reasons for adopting the substantial factor test. It is intelligible to laymen, providing an adequate guide to the jury, especially with respect to" 'troublesome'" situations that can arise in cases involving multiple potential causes of injury. (Id. at pp. 1052-1053.) Moreover, the substantial factor test essentially "subsumes" the but-for rule because" '[i]f the conduct which is claimed to have caused the injury had nothing at all to do with the injuries, it could not be said that the conduct was a factor, let alone a substantial factor, in the production of the injuries.'" (Id. at p. 1052.)
The term "substantial factor" has not been "defined with specificity" by California courts, and there is a common belief that reducing the standard to any" 'lower terms'" is neither possible nor desirable. (Rutherford v. Ownes-Illinois, Inc. (1997) 16 Cal.4th 953, 969.) "The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical." (Id. at p. 978.) "Thus, 'a force which plays only an "infinitesimal" or "theoretical" part in bringing about injury, damage, or loss is not a substantial factor' [citation], but a very minor force that does cause harm is a substantial factor [citation]. This rule honors the principle of comparative fault." (Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 79.)
II. The Jury's Causation Finding
Appellants first claim the trial court erred by failing to grant them partial JNOV with respect to a portion of the damages award that compensates Copeland for lost earnings "caused [by] her long-term disability." According to this argument, appellants are entitled to a defense judgment as to this component of damages because there is no substantial evidence that they caused Copeland's long-term disability. This claim of error fails on multiple grounds.
To begin with, appellants forfeited their claim for a partial JNOV with respect to long-term disability damages by failing to raise this issue in the trial court. (Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th 606, 634 [forfeiture applies to issue not included in trial court motion that is raised for first time on appeal as a ground for JNOV].) In their motion for JNOV, appellants contended they were entitled to a complete defense judgment as a matter of law, claiming there was no evidence their conduct "was a substantial factor in causing [Copeland's] claimed economic harm." Appellants did not move for a partial JNOV with respect to a discrete category of damages that relates specifically to wage losses incurred as a consequence of Copeland's long-term disability.
Relatedly, appellants' new partial JNOV theory fails to allege a cognizable error as it does not address an identifiable component of the damages that was awarded by the jury in this case. (Compare, e.g., Service Employees Internat. Union, Local 250 v. Colcord (2008) 160 Cal.App.4th 362 [finding that specific category of damages awarded during court trial was speculative].) The jury awarded Copeland damages for past and future lost wages, using the date of trial as the dividing line between these two components. The jury did not make any finding as to the amount of lost wages that are attributable specifically to a period of long-term disability as distinguished from other periods when Copeland was unable to work.
Appellants confuse matters by purporting to concede liability for lost wages during the discrete period that Copeland went on temporary disability after the Highway 101 accident. Undaunted by the fact that the jury did not parse out damages for lost wages to correspond to different calendar years, or different periods when Copeland took disability leave, appellants are content to concede liability for $151,099-Dr. Allman's mathematical calculation of the amount of wages Copeland lost during the 2014 calendar year. This selfserving concession-that appellants caused harm, but only harm occurring during a specific period of temporary disability-is a new defense not properly raised for the first time on appeal. (Bardis v. Oates (2004) 119 Cal.App.4th 1, 13-14, fn. 6 ["New theories of defense, just like new theories of liability, may not be asserted for the first time on appeal"]; see Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2022) ¶ 8:231, p. 8-176.)
In any event, appellants' new theory fails on the merits. The relevant finding by the jury is that Behre's negligence was a substantial factor in causing harm to appellant. On appeal, that finding is subject to review for substantial evidence. (Minnegren v. Nozar (2016) 4 Cal.App.5th 500, 506507.) We conclude that the trial evidence, considered as a whole, substantially supports the jury's finding that the Highway 101 accident was a substantial factor in causing Copeland's harm.
First, the jury's determination that Copeland was injured during the Highway 101 accident is supported by Kelkar's testimony that the accident was potentially an injury-producing event, Copeland's testimony that she was injured during that accident, and Savant's testimony and records pertaining to treatment he provided in the wake of that accident. We note, too, that appellants now appear to concede that their negligence harmed Copeland by acknowledging liability for damages she incurred when she was unable to work after the Highway 101 accident.
Second, the jury could have concluded reasonably that harm caused by the Highway 101 accident was a substantial factor in causing Copeland's cumulative, long-term injury in at least two distinct ways. Through Dr. Newkirk's testimony, Copeland presented evidence that the Highway 101 accident prevented her from recovering from the bridge accident and made her more vulnerable to additional injury caused by the Van Ness accident. Newkirk's testimony and testimony from Drs. Savant and Colman also support a finding that harm caused by the Highway 101 accident exacerbated pre-existing conditions, thereby playing a role in causing Copeland's disability.
Appellants contend that expert evidence regarding causation of harm falls short because no expert offered a reasoned opinion to establish that the Highway 101 accident was a cause of Copeland's disability in the specific sense that it rendered her unable to work. Appellants provide neither authority nor analysis supportive of their assumption that such an explicit opinion was required. While Copeland used expert evidence to establish the Highway 101 accident contributed to her cumulative injury, she relied on a variety of evidence to show that this cumulative injury rendered her unable to work, including her own testimony, testimony from former work associates, and testimony from family members.
In any event, Dr. Newkirk did offer his expert opinion that as a result of the three accidents combined, Copeland has a disability that renders her "totally disabled from meaningful employment." Appellants contend Newkirk's opinion has no evidentiary value because it is conclusory. (Citing Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117.) We disagree. At trial, Newkirk described Copeland's physical disabilities, which include a balance disorder, "serious weakness as well as persisting numbness and tingling of both hands, both forearms and arms," and a "serious inability to reach more than a few seconds at a time and almost no capacity to reach out more than a few seconds." Newkirk explained that these conditions limit Copeland's ability to engage in daily activities (e.g., driving, using a computer, cooking, cleaning) to "very short segments" of time because if she engages in an activity for too long, she will experience "excruciating pain" in her arms and hands, "severe" headaches, and "progressive neck and shoulder and upper back pain." Thus, to the extent expert evidence was required to show Copeland's inability to work as a result, in part, of the Highway 101 accident, that evidence was provided by Dr. Newkirk.
Finally, we note a flaw that runs throughout appellants' sufficiency of the evidence challenge. They parse the testimony of a given plaintiff's witness and purport to find it lacking, which is inconsistent with our substantial evidence review. "The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on' "isolated bits of evidence" '" (People v. Cuevas (1995) 12 Cal.4th 252, 261.)" 'In applying the substantial evidence test, we view the facts in the light most favorable to the judgment, resolving all conflicts in [respondent's] favor and accepting all reasonable inferences deduced from the evidence.'" (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1237.) Consistent with these guidelines, we find substantial evidence in the trial record that supports the jury's finding that appellants were a substantial factor causing Copeland's cumulative harm, which includes her inability to work.
III. Jury Instruction Regarding Causation of Harm
Appellants contend their motion for new trial should have been granted because the trial court erroneously denied their request to give a "complete instruction" regarding "substantial factor causation." As we shall explain, (1) the jury did receive a complete instruction regarding the substantial factor standard for proving causation, and (2) appellants fail to show that their cursory request for an additional instruction regarding the but-for test was erroneously denied.
First, the trial court used Judicial Council-approved instructions to instruct the jury regarding: Copeland's burden of proving that appellants' negligence was a substantial factor in causing her harm (CACI 424); general guidelines for applying this standard (CACI 430); and specific guidelines applicable when more than one cause may contribute to a plaintiff's harm (CACI 431). The jury was not instructed with additional optional language in CACI 430, which states: "[Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.]" (1 CACI 430, Nov. 2020.) The omission of this optional sentence addressing the but-for test of causation did not render the instructions incomplete because the substantial factor test "subsumes the traditional 'but for'" test of causation. (Viner, supra, 30 Cal.4th at p. 1240; Mitchell, supra, 54 Cal.3d at p. 1052; see Rest.2d Torts, § 431.)
Second, although appellants did request that the jury be instructed with the optional language in CACI 430, they fail to show the denial of that request was prejudicial error. By way of background, during pretrial proceedings, both parties stipulated that the court use CACI 430's explication of the substantial factor standard, but each also sought supplemental instruction favoring their respective theories. Copeland requested a special instruction highlighting her argument that even a very minor force that causes injury constitutes a substantial factor. And appellants requested the optional language in CACI 430 to highlight their theory that Copeland's alleged harm was "attributable entirely to the other more serious accidents." During a subsequent hearing on jury instructions, the trial court declined to give any supplemental instruction regarding the substantial factor standard. The court expressed concern that an additional instruction might be misconstrued as modifying the substantial factor standard, which is "really the essence of the personal injury cases." Regarding the defense request to use optional "but for" language in the CACI instruction, the court added that it reviewed authority discussing that test and found it did not apply. Appellants did not object to the court's ruling, and on appeal they fail to show error.
Appellants acknowledge Mayes v. Bryan (2006) 139 Cal.App.4th 1075 (Mayes), which holds that a trial court is not required to instruct a jury regarding both the substantial factor standard and the but-for test "unless the state of the evidence suggests otherwise." (Id. at pp. 1095-1096 &fn. 10.) Mayes was a medical malpractice case brought by the family of a woman who died after undergoing surgery to staple her stomach. After settling with most of the defendants involved in the decedent's treatment, plaintiffs obtained a jury verdict and finding that the negligence of a radiologist who misread the decedent's x-ray was a cause of the patient's death. On appeal, the radiologist argued the trial court erred by refusing to instruct the jury on but-for causation. The appellate court disagreed, finding neither error nor prejudice. (Id. at pp. 1096-1098.) Pertinent here, the Mayes court found that a but-for instruction would have been redundant since the jury was instructed on the substantial factor test, which subsumes the but-for rule. (Id. at p. 1096; see Mitchell, supra, 54 Cal.3d at p. 1052; Viner, supra, 30 Cal.4th at pp. 1239-1240.) Beyond that, the court found, there was "no evidentiary support for defendants' contention that Mrs. Mayes would have died even had Dr. Bryan not acted negligently." (Mayes, at p. 1097.)
Applying Mayes here, we conclude that refusing separately to instruct the jury on but-for causation was not error. The jury received complete instruction regarding the substantial factor test, which made the optional language in the CACI instruction redundant and unnecessary. (Mayes, supra, 139 Cal.App.4th at p. 1096; Arato v. Avedon (1993) 5 Cal.4th 1172, 1189, fn. 11 ["It is not error, of course, to refuse to give an instruction requested by a party when the legal point is covered adequately by the instructions that are given"].) Moreover, as in Mayes, appellants' contention that Copeland would have suffered the exact same cumulative injury even if Behre had not acted negligently by causing the Highway 101 accident is inherently speculative and unsupported by substantial evidence. (See Mayes, at p. 1097.)
Pertinent authority also supports the trial court's decision not to give either party's proposed supplemental instruction regarding the substantial factor standard in order to avoid misleading or confusing the jury. "An instruction correct in the abstract, may not be given where it is not supported by the evidence or is likely to mislead the jury." (Joyce v. Simi Valley Unified School Dist. (2003) 110 Cal.App.4th 292, 303.) As we have noted, our Supreme Court has expressed particular concern that instruction regarding the but-for rule can cause confusion in cases when multiple causes of harm are alleged. (Mitchell, supra, 54 Cal.3d at p. 1052.) Similar concern was expressed in Major v. R.J. Reynolds Tobacco Co. (2017) 14 Cal.App.5th 1179, 1182 (Major), which holds that the but-for causation test "does not apply in a case of multiple causes, different combinations of which are sufficient to have caused the harm."
Major was a wrongful death action against multiple cigarette manufacturers and multiple asbestos manufacturers, in which the plaintiff alleged that the decedent's cancer and death were caused by cigarette smoking and asbestos exposure. (Major, supra, 14 Cal.App.5th at p. 1182.) The one non-settling cigarette manufacturer who went to trial was not entitled to a but-for causation instruction, the appellate court confirmed. (Id. at pp. 1198-1200.) The Major court reasoned that in cases alleging more than two causes of harm, "partial combinations of which are sufficient to cause the harm," the but-for test could allow "each of three equally liable tortfeasors" to "escape liability on the basis that they are neither but-for causes nor concurrent independent causes-a wholly unjust result." (Id. at p. 1200.) Under this unjust scenario, the tortfeasor would use the but-for rule to escape liability by showing that the combined effect of the other two tortfeasors' negligence was likely sufficient to cause the harm despite the fact that the defendant's conduct when combined with the negligence of one or the other tortfeasor was likely also sufficient. (Ibid.) Appellants in the present case pursued a similar theory-seeking a defense verdict on the ground that the other two accidents were likely sufficient to cause Copeland's current condition, notwithstanding unrefuted evidence that Behre's negligence did cause harm. Thus Major supports the trial court's refusal to instruct on the but-for test.
Appellants acknowledge that CACI 430's optional language is not always required, but they argue the trial court's refusal to instruct on the but-for rule was error in this case under the reasoning of Soule v. General Motors Corp. (1994) 8 Cal.4th 548 (Soule). Soule was a strict liability action against General Motors (GM) for "enhanced collision injuries caused by an uncrashworthy vehicle." (Id. at p. 556.) During the accident, which occurred when a driver travelling the opposite direction skidded into the path of plaintiff's car, plaintiff suffered a fractured rib, relatively minor scalp and knee injuries, and severe fractures of both ankles. (Id. at pp. 556-557.) The plaintiff argued that her serious ankle injuries were not a natural consequence of her automobile accident, but were caused because a defectively designed wheel collapsed. (Id. at pp. 557-558.) GM presented a two-fold defense: there was no design defect; and the force of the collision rather than any product defect was the sole cause of plaintiff's ankle injuries. (Id. at pp. 558-559.) The jury was instructed that a" 'legal cause of injury is a cause which is a substantial factor in bringing about the injury.'" (Id. at p. 557) However, the trial court denied GM's request for an additional special instruction telling the jury that if they found the plaintiff's car was defectively designed but they also found that plaintiff would have "received enhanced injuries even if the design had been proper," then the jury would be required to find that "the design was not a substantial factor in bringing about [plaintiff's] injuries." (Ibid.)
The Soule jury returned a verdict for plaintiff, making special findings that plaintiff's car contained a defect that was a legal cause of her injury and, although plaintiff was guilty of comparative fault, her conduct was not a legal cause of her enhanced injuries. (Soule, supra, 8 Cal.4th at p. 559.) One issue on appeal was whether refusing to instruct the jury with GM's special causation instruction was a prejudicial error. (Id. at p. 572.) The Soule court found there was error because the special instruction pinpointed GM's theory of the case, was correct in form and substance, and was supported by substantial evidence. (Id. at p. 573) But the error was not prejudicial as there was "no reasonable probability the jury was misled or the verdict affected." (Id. at p. 582.)
Soule does not alter our conclusions here. The Soule plaintiff's product liability claim was based on a different theory of causation than the theory presented to the jury in this case. The plaintiff there alleged that GM was the sole cause of enhanced injuries she suffered during a car accident, injuries which were readily distinguishable from other injuries she sustained during the crash. In the present case, by contrast, Copeland alleged that the Highway 101 accident was not the sole injury-causing occurrence, but one of three substantial factors that caused her cumulative, indivisible injury.
Furthermore, in Soule, GM presented substantial evidence to support its defense that if there was a manufacturing defect it was not a substantial factor causing the plaintiff's ankle injuries because those specific injuries would have happened anyway. In this regard, the Soule court found that "GM produced voluminous expert evidence in support of its hypothesis that even if plaintiff's Camaro was defective, the force of the collision was the sole 'substantial' cause of plaintiff's ankle injuries." (Soule, supra, 8 Cal.4th at p. 582.) In the present case, appellants' core defense was that their negligence was not a substantial factor because two other negligent tortfeasors caused more harm than appellants caused to Copeland, a defense they supported with evidence tending to show that the Highway 101 accident was comparatively less serious than the other two accidents. To the extent appellants speculated at trial that Copeland would have suffered identical injury whether or not the Highway 101 accident occurred, they fail to show this hypothesis is supported by substantial evidence.
In their reply brief, appellants argue the record does contains substantial evidence that Copeland would have suffered" 'the same injuries'" even if the Highway 101 accident had not occurred, directing us to three categories of evidence. First, appellants rely on evidence that the accident itself was minor, which addresses a different issue from whether the accident caused injury. Second, appellants contend their medical expert testified that (1) Copeland exhibited no new symptoms after the Highway101 accident, and (2) the accident did not cause lasting injury. First, Dr. Bradshaw testified that new symptoms were not documented in the medical records that he reviewed, which was a factor upon which he relied to conclude that Copeland was overtreated for a chronic condition. This aspect of Bradshaw's testimony confirms that Copeland was injured without addressing whether the identical injury would have occurred if the Highway 101 accident had not occurred. Second, Bradshaw did not address whether the Highway 101 accident in particular caused lasting injury, but instead offered the opinion that by the time of trial Copeland had no "significant abnormalities" at all, and that "structurally," she was "pretty good." This testimony goes to whether Copeland suffered any injury, not whether the same injury would have occurred without the second car accident.
Finally, appellants direct our attention to testimony by their accident reconstruction expert, Mr. Maloney. By looking at photos of the damaged vehicles and repair estimates, Maloney formed the opinion that Behre was traveling between 10 and 12 miles an hour when he hit Copeland. Maloney also offered the opinion that given this low speed, the accident would fall "below the level of injury producing" for a "normal average human being with no preexisting medical condition." Maloney did not offer any opinion about what injuries Copeland actually suffered as a result of the Highway 101 accident.
As we have discussed, appellants' primary defense in this case was that the Highway 101 accident was simply not as serious as the other two accidents and therefore should not be deemed a substantial factor in causing Copeland's indivisible injury. They did not present the jury with substantial evidence to support the alternative theory developed on appeal, that Copeland would have suffered an identical injury even if the Highway 101 accident never happened.
IV. The Special Verdict Form
Appellants contend the trial court erred by failing to include a question on the special verdict form asking whether the Highway 101 accident was a substantial factor in causing Copeland's disability" 'separate and apart from the discrete damages that may have naturally flowed from" the Highway 101 accident.
The first problem with appellants' argument is that they stipulated to a special verdict form that asked the jury whether appellants' negligence was a substantial factor causing Copeland's harm without requiring any separate finding as to whether Copeland's long-term disability was attributable to the Highway 101 accident. The general rule is that where a party fails to object to a special verdict form at trial, the objection is forfeited on appeal. (Lynch v. Birdwell (1955) 44 Cal.2d 839, 851; Mardirossian &Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 277; Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131.) Appellants' contention that an objection would have been futile is not supported by the record. Moreover, the doctrine of invited error may also apply, since the record shows that appellants actively participated in the preparation and approval of the special verdict form in this case. (See e.g. Mesecher v. County of San Diego (1992) 9 Cal.App.4th 1677, 1685-1687.)
In addition, appellants' claim fails on its merits. They argue that the special verdict form was fatally defective because it did" '" 'not allow the jury to resolve every controverted issue.'" '" (Quoting Trejo v. Johnson &Johnson (2017) 13 Cal.App.5th 110, 136.) As we have discussed, the disputed issue pertaining to the causation element of Copeland's negligence claim was whether appellants' negligence was a substantial factor in causing Copeland's indivisible injury. Appellants' theory that they are liable for causing a short- term disability but not a long-term disability was not a controverted issue that appellants pursued at trial.
V. The Jury's Question
Appellants contend the trial court erred by failing appropriately to address a question asked by the jury during deliberations. The appellate court "applies the abuse of discretion standard of review to any decision by a trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury." (People v. Waidla (2000) 22 Cal.4th 690, 745-746.)
In the present case, while the jurors were deliberating, they submitted the following question about the special verdict form: "We are struggling with Question #3. Can the jury make a determination that the 101 accident caused harm resulting in damages awarded but did not contribute to Ms. Copeland's long-term disability? If yes, then how to address Question #4 and #5?" The trial court discussed this question with counsel before giving the jury an answer. During that hearing, the court stated that it would not use the phrase "long-term disability" in its answer to the jury's question, noting that the court had denied Copeland's motion to take judicial notice of the Social Security Administration's eligibility finding (see ante, fn. 1), and that using this term "confuses the issue." Neither party objected nor disagreed.
Both counsel opined or confirmed that the jury's question could be answered adequately by referring the jury to the CACI jury instructions that corresponded to the questions on the verdict form referenced in the jury's question. Accordingly, the court provided the following typewritten answer: "You must determine Question #3 (See jury instructions #424 and #430). [¶]
If you answer YES to Question #3, you must also answer Question #4 and determine the total damages from the 3 accidents. [¶] If you answer YES to Question #3, you must also answer Question #5 and determine the percentage the 101 accident was responsible for Ms. Copeland's harm/damages (See jury instruction 406)."
Appellants now contend the trial court's answer to the jury's question was inappropriate because the court did not (1) instruct the jury with the optional but-for language in CACI 430, or (2) "consider" revising the verdict form to include an additional question addressing whether appellants caused Copeland's long-term disability. Appellants forfeited this claim by failing to suggest either alternative to the trial court." 'When the trial court responds to a question from a deliberating jury with a generally correct and pertinent statement of the law, a party who believes the court's response should be modified or clarified must make a contemporaneous request to that effect; failure to object to the trial court's wording or to request clarification results in forfeiture of the claim on appeal.'" (Eng v. Brown (2018) 21 Cal.App.5th 675, 706.)
Even if this claim of error were preserved, it lacks merit. Appellants rest their cursory argument on the rule that, "[w]here original instructions are inadequate and the jury asks questions indicating their confusion and need for further explanation, failure to give proper additional instructions is usually reversible error." (Sesler v. Ghumman (1990) 219 Cal.App.3d 218, 227.) As we have explained, the original instructions regarding the causation element of Copeland's negligence claim were correct and complete. Moreover, the jury asked for additional guidance about how to complete the special verdict form, not about relevant legal principles.
In any event, the court's answer referred the jury to the pertinent CACI instructions, which accurately state the law. As explained, the optional but-for language in CACI 430 does not apply to the facts of this case or the theory of liability that was presented to the jury. Similarly, the jury was not required to make a separate determination whether appellants caused Copeland's long-term disability in order to determine whether appellants' negligence was a substantial factor in causing the indivisible injury for which Copeland sought redress. Rather, as appellants maintained throughout the trial, the verdict form was framed so that if the jury believed appellants were not responsible for all of Copeland's harm, that finding would be reflected in the percentage allocation of responsibility among the three drivers whose negligence caused the accidents in question. Appellants fail to show any abuse of discretion in the way the court responded to the jury's question.
DISPOSITION
The judgment is affirmed. Costs to respondent.
WE CONCUR: FUJISAKI, J., RODRIGUEZ, J.