Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Los Angeles County No. SC083310, Cesar J. Sarmiento, Judge.
Brady, Vorwerck, Ryder & Caspino; Reback, McAndrews & Kjar and Michael S. Ayers for Defendant and Appellant.
Gordon, Edelstein, Krepack, Grant, Felton & Goldstein, Roger L. Gordon, Vincent Vallin Bennett and Noah Green for Plaintiffs and Respondents.
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
SUMMARY
Plaintiffs Ramiro and Rosa Serrano prevailed in a jury trial against defendant Amrep, Inc. (Amrep). Serrano sustained permanent, serious injuries when he was struck by a trash bin that slipped off the forks of a front loader manufactured by Amrep. Amrep appeals from the judgment, contending that the trial court erred by (1) ruling that the sophisticated user doctrine was not part of California law, (2) excluding evidence that the person operating the controls of the loader did not have a class B driver’s license, (3) excluding evidence that Serrano’s employer ordered the loader with particular features, (4) excluding evidence of the absence of prior similar accidents, (5) excluding a videotape of the loader involved in Serrano’s accident lifting a dissimilar bin, (6) admitting a videotape of another loader of the same model operating at high throttle, (7) excluding a videotape and other unspecified evidence of other manufacturers’ loaders in operation, and (8) permitting the Serranos’s medical expert to testify. We reject each of these contentions and affirm the judgment.
“Serrano” refers to Ramiro Serrano and “the Serranos” refers to both plaintiffs.
BACKGROUND
Serrano worked as a trash collector for Consolidated Disposal Services (Consolidated). The Consolidated truck Serrano drove on the date of the accident was equipped with a front loader manufactured by Amrep. The loader was designed to lift and dump a trash bin by inserting its forks into “pockets” on the bottom or sides of the bin, lifting the bin to a position over the body of the truck, then tilting the bin to dump its contents into the body of the truck. Serrano had used front loaders in the trash collection industry for about 18 years at the time of the accident. Serrano had been training his helper, Ivan Saldana, for about six months.
On the day of the accident, Serrano and Saldana rolled a trash bin weighing approximately 500 pounds to the front of the truck, where they pushed it onto the loader’s forks. Using controls on the outside of the truck, Saldana began lifting the bin with the loader. When the bin was suspended several feet in the air, it began to slip off of the forks. Saldana attempted to prevent the bin from falling by reversing the action of the forks, i.e., by pushing the handle that controlled the forks in the opposite direction. The loader pitched the bin forward several feet and onto the ground. The bin struck Serrano’s head and partially pinned him. Serrano sustained a broken neck, shoulder, and clavicle, as well as an open head wound. About five weeks after the accident, he underwent surgery to fuse his neck, which prevented him from moving his head in any direction. Serrano was unable to work, and his injuries are permanent.
The Serranos filed a products liability action against Amrep and the manufacturer of the truck, alleging theories of strict liability, negligence, and breach of implied warranties. The Serranos subsequently dismissed their negligence claims and agreed not to pursue a manufacturing defect theory. They proceeded to trial against Amrep solely upon theories of strict liability for a design or warning defect.
The record does not indicate what became of the Serranos’s breach of warranty claim or its claims against the manufacturer of the truck.
Two mechanical engineers testifying as expert witnesses for the Serranos opined that Amrep’s front loader was dangerously defective in design because it failed to incorporate feasible safety devices, such as hooks on the forks or self-leveling forks, to eliminate the known hazard of bins slipping off the forks. The Serranos’s “human factors and safety consultant,” testified to two further design flaws: the location of the side controls, which prevented Saldana from being able to see Serrano, and the design of the controls, which moved the forks in the opposite direction of the operator’s motion, e.g., to lift the forks, the operator pulled down on the control lever.
Amrep’s expert, who was also a mechanical engineer, testified that the loader was safe, and the accident resulted from the unsafe work practices of Serrano and Saldana. Specifically, Amrep’s expert opined that Saldana operated the controls improperly, and Serrano stood in an unsafe location with respect to the bin being lifted by the loader.
Using a special verdict form, the jury rejected the Serranos’s theories of inadequate warning and design defect under the consumer expectations test. The jury found, however, that the benefits of the loader’s design did not outweigh its risks, and the product design was a substantial factor in causing Serrano harm. It found the amount of Serrano’s economic loss was $2,881,405 and his non-economic loss was $1 million. The jury found that Serrano and Consolidated were negligent, and their negligence was also a substantial factor in causing Serrano’s harm. The jury apportioned 50 percent of the fault to Serrano, 20 percent to Consolidated, and 30 percent to Amrep. The jury also awarded Rosa Serrano $50,000 for loss of consortium. The court entered judgment for Serrano in the amount of $1,740,702.50 and for Rosa Serrano in the amount of $15,000. Amrep’s motions for a new trial and for judgment notwithstanding the verdict were denied.
DISCUSSION
1. The sophisticated user doctrine
Amrep’s tenth motion in limine asserted that “the sophisticated user doctrine” prevented the Serranos from recovering on claims that the loader was defective in design under the consumer expectation test or that warnings were inadequate. Amrep therefore sought to preclude the Serranos from arguing or introducing evidence in support of these theories. The trial court concluded that the sophisticated user doctrine was not part of California law, and denied the motion. Amrep contends the trial court’s ruling was erroneous.
Strict liability for a defective product may be based upon design, manufacturing, or warnings defects. (Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1110 (Carlin).) The sophisticated user doctrine is an exception to a manufacturer’s general duty to warn consumers about the hazards of its product: “sophisticated users need not be warned about dangers of which they are already aware or should be aware.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64-65.) After the trial court’s ruling in the present case, the California Supreme Court held that this doctrine applies in California. (Id. at p. 70.) However, we need not determine whether the doctrine applied to Serrano because the jury did not find Amrep liable for failure to warn. Amrep’s contention is therefore irrelevant.
2. Saldana’s lack of a class B driver’s license
The Serranos’s sixth motion in limine sought to exclude evidence that Serrano’s helper, Saldana, did not have a license to operate the front loader. Amrep’s opening and reply brief are misleading in that they imply that Saldana needed a license to operate the external levers that lift the trash bin in an arc, unload the contents into the truck, and return the bin to the ground. The trial court granted the motion on the ground that Saldana’s lack of a driver’s license was irrelevant.
Amrep contends that Saldana’s operation of the loader without a class B license established “that Saldana was negligent per se,” and the trial court therefore erred by excluding the licensure evidence.
A trial court’s ruling on the admissibility of evidence is generally reviewed for abuse of discretion. (Zhou v. Unisource Worldwide, Inc. (2007) 157 Cal.App.4th 1471, 1476.)
The license in question is a class B driver’s license, necessary to drive the trash collection truck. Nothing in the record demonstrates that Saldana’s lack of a class B driver’s license played any role in causing the accident. Serrano was not hit by the truck, but by a trash bin dropped by the loader on the truck. Saldana was not driving the truck at the time of the accident; he was standing outside the truck, operating the loader controls. No license is required to operate the loader controls. Even with respect to injuries caused by driving a vehicle, it is well established that a driver’s negligence must be determined by the facts existing at the time of the accident, and whether the operator was properly licensed is irrelevant unless there is a causal connection between the injuries and the lack of a license. (Armenta v. Churchill (1954) 42 Cal.2d 448, 458-459.) Amrep has not demonstrated any causal connection, and none is obvious from the record. Accordingly, the trial court’s ruling was correct.
3. Design specifications by Serrano’s employer
The Serranos’s second motion in limine sought to exclude evidence of Consolidated’s design specifications for the loader if offered to shift the blame from Amrep to Consolidated. The trial court partially granted the motion, precluding the introduction of evidence regarding “how the plaintiff’s employer ordered the … front loader that was involved in this accident.”
Amrep contends that the trial court erred by excluding evidence that Serrano’s employer ordered adjustable forks as an option.
In California, there are two alternative theories by which a plaintiff may attempt to establish that a product was defectively designed: the consumer expectations test and the risk-benefit test. (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118.) The jury found Amrep liable under the latter theory, i.e., it found that the benefits of the front loader’s design did not outweigh the risk of danger inherent in its design. The jury was properly instructed that one of the factors it could consider in this regard was the feasibility of an alternative design. “The ‘feasibility of alternative design’ factor … allows a consideration of physical or mechanical feasibility, rather than administrative or bureaucratic feasibility, and does not include the necessity to comply with owner specifications.” (McLaughlin v. Sikorsky Aircraft (1983) 148 Cal.App.3d 203, 209(McLaughlin).) Accordingly, a defendant’s compliance with a purchaser’s design specifications or other demands does not immunize the defendant from liability for a defective product, and the trier of fact should not even consider evidence of the purchaser’s specifications or demands. (Id. at pp. 208-209.)
The trial court therefore properly excluded evidence that Serrano’s employer ordered adjustable forks on the loader. This did not preclude Amrep from introducing “state of the art” evidence, as Amrep appears to argue, but merely prevented appellant from seeking to evade liability for its defective product on a legally incorrect theory that it was required to provide the purchaser with what it wanted, even if the product was dangerously defective.
4. Evidence of absence of prior similar accidents
The Serranos’s fifth motion in limine sought to exclude evidence of the absence of similar accidents. The trial court denied the motion without prejudice.
Amrep’s president, Jose Ghibaudo, repeatedly attempted to testify that the company had never had any complaints or reports of similar occurrences. Each time, his testimony was stricken upon the Serranos’s request. Ghibaudo admitted that his company did not have a system to record customer complaints or accidents arising out of the use of Amrep’s equipment.
Citing Benson v. Honda Motor Co. (1994) 26 Cal.App.4th 1337 (Benson), the Serranos asked the court to reconsider its ruling on the ground that Ghibaudo’s testimony established that there was an insufficient foundation to introduce evidence of the absence of similar accidents. Amrep informed the court that it intended to offer the testimony of Eric Mattison, Amrep’s general manager since 1991. Mattison would “testify that in the event of an accident or an injury involving an Amrep product, there are only a handful of people in the company that would be notified, and he would certainly be notified of an accident of that nature.” Amrep further told the court that Mattison would testify that “in the event that an accident involving injury comes in, [Mattison] is notified …. [¶] It is a single plant, manufacturing plant. It has … a small number of employees, 100 to 150 employees. … [¶] When you need to report an injury, an accident, any problem with the front loader that causes such an injury or accident, it’s going directly to the heads of the company. That would include Mr. Ghibaudo. That would include Mr. Mattison.” Amrep further represented that Mattison “was deposed specifically and presented specifically as one of the people most knowledgeable involving litigation involving Amrep products in the past and went through 25 cases that were identified in that regard, testified at length as to what was his review of the documentation of those claims and files.” The trial court found the foundation insufficient and excluded evidence of the absence of prior accidents.
Amrep contends that the trial court erred by excluding evidence of the absence of prior similar accidents.
In strict liability design defect cases, evidence of the occurrence or absence of prior accidents may be relevant to several of the factors to be considered in the risk-benefit analysis, such as the gravity of the danger posed by the challenged design and the likelihood that such danger would occur. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 479 [factors for consideration under risk-benefit test].) However, evidence that the defendant did not know of any prior accidents involving its product may be attributable to either the absence of accidents or the witness’s lack of knowledge of accidents. (Benson, supra, 26 Cal.App.4th at p. 1346.) “Therefore, at minimum, the proponent should proffer evidence through a witness who is familiar with product safety surveys or safety records concerning the product.” (Ibid.) The Benson court cited and relied heavily upon the decision of the Arizona Supreme Court in Jones v. Pak-Mor Mfg. Co. (1985) 145 Ariz. 121 [700 P.2d 819] (Jones), which extensively discussed the rationale and foundational requirements for admission of evidence of the absence of prior similar accidents. Key aspects of the foundation include evidence that (1) “the product experience which the proponent seeks to prove ‘is so extensive as to be sure to include an adequate number of similar situations’” and (2) “if there had been prior accidents, the witness probably would have known about them.” (Jones, supra, 700 P.2d at p. 825.)
In regard to a witness’s probable knowledge of any accidents, the Jones court explained, “The defendant may have established a department or division to check on the safety of its products and may have a system for ascertaining whether accidents have occurred from the use of its products. The defendant or its insurers may have made a survey of its customers and the users of its product to determine whether particular uses of the product have produced particular types of injuries. Information may have been compiled by and obtained from governmental agencies such as the Consumer Product Safety Commission, the FAA, the FDA, or the FTC. Defendant may have established a system with its insurers, distributors, or retailers whereby retail customers are encouraged to report accidents, accidents are investigated, and data is compiled. Any of these methods, or others, may produce facts with which the proponent of the evidence may establish that if there had been accidents or near-accidents when the product was used in a relevant manner, defendant probably would have learned of the information and would have it available. Thus, if the import of the evidence is no more than testimony that no lawsuits have been filed, no claims have been made, or ‘we have never heard of any accidents,’ the trial judge generally should refuse the offered evidence since it has very little probative value and carries much danger of prejudice.” (Jones, supra, 700 P.2d at p. 825.) Although Jones is not binding, it is highly instructive with respect to the foundation necessary to establish the relevance of evidence of the absence of prior accidents.
In Benson, supra, 26 Cal.App.4th 1337, the witness was a product analysis engineer who had been employed by Honda for 22 years. He testified that his job duties included the review of products liability claims. He further testified that Honda’s legal department collected “all customer complaints, claims or lawsuits concerning personal injuries as part of its regular course of business. Honda kept a permanent, computerized system to record such complaints made since at least 1970. Honda’s safety records department also collect[ed] information from police reports and product inspections. [¶] Among the information regularly recorded in its computer system is identification of the vehicles involved, accident descriptions and injuries to the occupants of the vehicles. A narrative section in these records describes accidents in some detail. … Furthermore, the computer system could generate specific information regarding products and accidents involving particular model years.” (Id. at p. 1347.) The appellate court found Honda’s foundational showing sufficient. (Id. at pp. 1347-1348.)
At best, Amrep showed that Mattison and Ghibaudo would know of accidents that had been reported to Amrep. This falls into the “we have never heard of any accidents” category, and stops significantly short of demonstrating “that if there had been prior accidents, the witness probably would have known about them.” (Jones, supra, 700 P.2d at p. 825.) Although Amrep’s business may have been small enough that it did not require the sort of extensive accident tracking system used by Honda, as described in Benson, Amrep failed to demonstrate any basis for inferring that if accidents occurred, they probably would have been reported to Amrep. Amrep did not, for example, demonstrate that it checked on the safety of the loaders it had already sold, surveyed its customers, or checked sources of information compiled by governmental agencies or insurers. Amrep’s president admitted that the company did not have a system to record customer complaints or accidents. Although Amrep was confident that particular people would learn of reported accidents, it failed to establish that it had a company policy or established practice requiring employees and agents who learned of an accident involving one of the company’s products to report it to a higher-ranking employee or officer. Moreover, reports of accidents simply may not have reached any of Amrep’s agents or employees. For example, blame for an accident may have been attributed exclusively to the injured employee or a co-worker or accidents may have resulted in minor or no injuries. “[T]he absence of claims and reports is not the relevant fact, nor even one which justifies an inference of the relevant fact (that there have been no accidents), absent a showing that if there had been accidents the witness would have known of them either from the system utilized to track safety history or from the investigation made at the sources of such information. There may have been no lawsuits filed against defendant, but we have no way of knowing what worker’s compensation claims were filed with appropriate administrative bodies nor any way of knowing what injuries were sustained but not pursued.” (Jones, supra, 700 P.2d at p. 828.)
Moreover, Michael Verner, whom Amrep designated as the person most knowledgeable regarding other accidents involving Amrep’s front loader, testified at his deposition that there had been other accidents involving the front loader system. However, he did not know the details or bring documentation regarding such accidents with him to his deposition, despite the notice to produce such documents at the deposition. This cast additional doubt upon the adequacy of Amrep’s accident tracking system, if any, and further demonstrates Amrep’s failure to lay a sufficient foundation for admission of its “no similar accidents” evidence. The trial court did not abuse its discretion by excluding such evidence.
Although the trial court had discretion to exclude the proffered evidence as a sanction for a discovery violation by Amrep, it did not do so. Accordingly, we do not address the Serranos’s argument that the evidence was inadmissible due to Amrep’s discovery violation.
5. Videotape of the “accident machine” lifting a dissimilar bin
The Serranos objected to a videotape of the loader involved in plaintiff’s accident lifting a trash bin without wheels on the ground. They represented that the bin involved in the accident had four wheels, and argued that the absence of wheels on the bin depicted in the videotape made it more difficult to remove the forks from the bin pockets. Amrep’s attorney explained that the purpose of the tape was to demonstrate how the front loader “stabbed” the bin and lifted it. He further argued that picking up bins without wheels was a task Amrep needed to “account for” “in the design for state of the art.” The court excluded the videotape on the ground that the bin depicted in the video was not “the same configuration” as the bin involved in the accident and the tape was not relevant to the state of the art issue. Amrep’s expert played a different videotape of Quan operating the same model of loader on a different vehicle.
Amrep contends the trial court erred by excluding the videotape, which it argues was “critical to Amrep’s defense as demonstrative of the design utility of its frontloader, [and] necessary to the jury’s understanding of how a front loader works.” Amrep argues the exclusion of the videotape required the jury to evaluate the design utility of the front loader “without ever seeing it operate under normal conditions.”
Experimental or demonstrative evidence, such as the videotape in question, is admissible only where (1) the experiment or demonstration is relevant, (2) the experiment or demonstration was conducted under conditions substantially similar to those existing at the time of the alleged occurrence, and (3) the evidence will not consume undue time or confuse or mislead the jury. (Dirosario v. Havens (1987) 196 Cal.App.3d 1224, 1231.) The party offering the evidence has the burden of showing that the foundational requirements have been satisfied. (Ibid.) The admission or exclusion of such evidence rests in the trial court’s discretion. (Id. at p. 1232.)
The trial court, which reviewed the various videotapes of loaders lifting bins, apparently accepted the Serranos’s argument that the missing wheels on the bin depicted in the tape in question rendered the “experiment” shown on the tape insufficiently similar to the actual occurrence. Although the conditions depicted on the videotape need not have been identical (As You Sow v. Conbraco Industries (2005) 135 Cal.App.4th 431, 452), the Serranos’s explanation regarding the significance of the differences between lifting bins with and without wheels is plausible. “It is within the discretion of the trial judge to determine whether the conditions of the experiment were sufficiently similar that the evidence of the experiment would aid rather than confuse the jury.” (Yecny v. Eclipse Fuel Engineering Co. (1962) 210 Cal.App.2d 192, 204.) On this record, we cannot conclude that the trial court abused its discretion by excluding the videotape.
Amrep, which obviously had access to loaders and trash bins, had ample opportunity to prepare a videotape of the loader involved in the accident lifting a bin of the same type and configuration as that involved in the accident. If Amrep failed to do so, and was left with only the videotape in question, the fault lies with Amrep, not the trial court. Moreover, Amrep was able to use its other videotape of a comparable vehicle with the same model of loader to demonstrate how the loader and its controls worked.
Finally, the videotape in question was not evidence of the state of the art of front loader design. “State of the art” refers to the known, knowable, or feasible by the application of scientific knowledge or existing technology. (Carlin, supra, 13 Cal.4th at p. 1116; McLaughlin, supra, 148 Cal.App.3d at p. 210.) Such evidence is relevant to the feasibility and cost of alternative designs for the product. (McLaughlin, supra, 148 Cal.App.3d at p. 210 .) Images of the loader in operation did not demonstrate what the state or the art was, or that the loader comported with it. The videotape would more accurately be characterized as “custom and practice” evidence, in that it purported to depict the operation of the front loader in a condition that trash haulers sometimes faced. However, evidence of industry custom and practice is irrelevant to, and inadmissible in a strict liability action. (Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 803.)
6. Videotape of loader operating at high throttle
During cross-examination of Amrep’s expert, Dr. Mack Quan, the Serranos wanted to show a one-minute videotape of the operation of the actual truck involved in the accident. Counsel informed the court that the tape showed “the forks going up and down at a speed different than the one that was shown by the defense yesterday.” Amrep objected to showing just a segment of the tape, and wanted the entire tape shown. It argued that the segment the Serranos proposed to show did not accurately depict “what it actually looks like when a bin goes up and down and gets dumped on the forks which is also part of this video. [¶] I think the jury should be entitled to see the entire video, at least show them the part where the bin goes up and down, as opposed to the forks going up and down.” The trial court overruled the objection.
After viewing the tape, Quan testified that it showed the loader operating “under high throttle.” He further testified that the speed of the loader’s movement was determined by “how far [the operator] moves the stick.” Quan admitted that the videotape he had shown during his direct testimony only depicted operation of the loader at a single speed. He further testified that if Saldana had been running the loader at high throttle when lifting the bin, the accident would have occurred within seconds. On redirect examination, Quan reiterated that the Serranos’s videotape depicted the loader operating at high throttle, and noted that Saldana had never testified that he was operating at high throttle at the time of the accident.
On appeal, Amrep contends the trial court erred by permitting the Serranos to show the videotape without an adequate foundation, in that there was no showing that Saldana was operating the loader at high throttle at the time of the accident.
Amrep did not raise its foundational objection in the trial court, and thereby forfeited it. (Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253, 1260-1261.) Indeed, Amrep had no objection to showing the entire tape. Its only contention was that the segment the Serranos proposed to show did not show a bin being lifted and dumped.
Even if we were to find that the trial court erred in admitting the tape, the error was harmless. Quan’s testimony clearly informed the jury that the videotape in question showed the lifting operation at high throttle, making it faster, and that Saldana had not testified he was operating at high throttle at the time of accident. The jury therefore knew that the videotape demonstrated a manner of operation that was possible, but not shown to have occurred. It is not reasonably probable that Amrep would have obtained a more favorable verdict if the jury had not seen the tape. (Tudor Ranches, Inc. v. State Compensation Ins. Fund (1998) 65 Cal.App.4th 1422, 1431-1432.) Amrep argues that the jury could have concluded that “the accident vehicle operated differently than the sample vehicle based on the videotape shown.” However, the Serranos’s case and the jury’s verdict were based upon a design defect theory. A conclusion by the jury that the “accident vehicle” had a loader that operated differently than others of its design would benefit Amrep, in that it would tend to show that the particular loader either had a manufacturing defect, which the Serranos made no attempt to prove and did not argue as a basis for their recovery, or had developed a malfunction. The verdict finding liability for a defective design conclusively established that the jury concluded the loader’s design, rather than a malfunction of the particular loader on the “accident vehicle,” was the cause of Serrano’s injury. Accordingly, Amrep’s claim would have no merit, even if it had been preserved for appeal.
7. Videotape of other manufacturers’ front loaders in operation
Without citing an offer of proof or discussion of a particular proposed exhibit in the record, Amrep contends that the trial court erred by excluding a “videotape depicting the typical operation of frontloaders while out in the field” and other unspecified evidence that “showed how things were done in the business.” Amrep argues that the exclusion of this evidence was error because it was relevant to the state of the art of the front loader design.
Amrep’s reply brief indicates that this contention applies to testimony from defense experts. However, Amrep does not identify the experts or cite an offer of proof.
Prior to trial, the court granted the Serranos’s fourth motion in limine, which sought to exclude all evidence that the design of Amrep’s loader was consistent with industry custom and practice. As previously discussed, evidence of the custom and practice of an industry is inadmissible in a design defect case. The description of the proffered evidence in Amrep’s appellate brief indicates that it would have shown how loaders operate, which is custom and practice evidence, not state of the art evidence. Amrep could not escape liability for a design defect by attempting to show either the similarity of its product to that of other manufacturers or that its product was able to perform the tasks for which it was designed and manufactured. Accordingly, the trial court did not err by excluding the unspecified evidence.
To the extent that Amrep’s contention is addressed to matters arising during the testimony of Fred Smith, who testified as a design expert for the Serranos, the contention also fails. Amrep notes that Smith testified on direct examination about his experience designing refuse industry equipment for other manufacturers. However, Smith’s testimony on direct was quite general in nature. It was introduced to establish his expertise. He did not testify about the designs of other manufacturers’ equipment. Amrep argues that the court prevented it from cross-examining Smith about the designs of front loaders manufactured by other companies. A review of the record reveals that Amrep did not ask Smith any questions regarding such designs. Amrep also highlights Smith’s testimony on direct examination that bins seldom come off of forks because most containers across the United States are side pocket containers. This testimony did not attempt to compare the design of Amrep’s loader to that of other manufacturers, however. It was instead in the nature of “no prior similar accidents” evidence. Amrep also complains that counsel for the Serranos read to the jury excerpts from the deposition of expert Martin Siegel regarding a self-leveling device used as a safety feature on various types of machines with similar lifts and forks. The portions of Siegel’s deposition that were read to the jury addressed means by which the loader could have been made safer. He testified that he thought the best safety mechanism would be a self-leveling device. When asked where he obtained “the information” regarding such a device, he said, “I’ve seen it on all kinds of equipment with similar types of lifts, forks.” He continued, “It’s not new technology. This is something that’s used all over the place.” This testimony constituted state of the art evidence, as it addressed the safety features that feasibly could have been incorporated in the design of Amrep’s loader to improve its safety. The testimony did not describe what other manufacturers had done with their loaders. Moreover, Amrep did not object to the testimony on the ground it raises on appeal. Prior to the reading of Siegel’s deposition testimony, Amrep objected that the testimony would be cumulative. Amrep forfeited its custom and practice objection by failing to assert it in the trial court.
A footnote in Amrep’s opening brief suggests this may be one category of the matters to which the contention is addressed.
To the extent this contention pertains to other unidentified evidence, Amrep forfeited its claim by failing to specifically identify the evidence, failing to cite the location in the appellate record of its offer of proof in the trial court, and possibly failing to make such an offer of proof. (Evid. Code, § 354; Gutierrez v. Cassiar Mining Corp. (1998) 64 Cal.App.4th 148, 161; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)
8. Expert testimony of Dr. Donna Barras
Amrep contends the trial court erred by denying its ninth motion in limine, which sought to preclude Dr. Donna Barras from testifying about the propriety of Serrano’s post-accident medical care and the reasonableness of the charges for that care. The motion argued that Barras lacked certification and training in specialty fields such as neurosurgery, orthopedic surgery, neurology, and psychiatry, and therefore any opinion she rendered upon the necessity of care by specialists in these fields and the reasonableness of the specialists’ charges lacked foundation and was speculative, irrelevant, and misleading. The motion further noted that Barras’s opinions lacked foundation because she admitted at her deposition that she had not reviewed complete copies of all of Serrano’s medical records and had spent just one half-hour reviewing his medical bills. The motion acknowledged that Barras had been designated to testify regarding Serrano’s future care needs, but did not seek to preclude or limit testimony on that subject. After the trial court denied the motion without prejudice, Amrep submitted supplemental briefing that reasserted the same arguments and added that Barras’s opinions were necessarily based upon the hearsay statements and opinions of non-testifying physicians contained in the medical records.
Barras testified that she was a medical doctor specializing in rehabilitative care. She did a residency in orthopedic surgery, and spent over 33 years working in a nationally-renowned rehabilitation hospital in Downey. At one time she ran the hospital’s pediatric spinal injury program and later became the medical director of its Center for Applying Rehabilitation Technology. Throughout her career at the hospital, she served as a primary care physician for seriously injured patients. In this capacity, she acted as the leader of a patient’s team of physicians, nurses, psychologist, and therapists. She examined patients, ordered medications, planned their future care when they were ready to go home, and “followed” them in the outpatient clinic. She belonged to various professional organizations having to do with rehabilitation, had received awards, made presentations, and written published articles in her field. As part of her experience, Barras learned the prevailing rates charged by various medical providers.
Barras spent three and one-half hours interviewing and examining Serrano in June, 2005. She also reviewed medical records from Serrano’s several admissions to UCLA Medical Center and from his treatment by numerous specified treating physicians and a treating dentist. With respect to the records from UCLA, Barras did not review lab reports, just the significant matters, such as reports of physicians, admission histories, and records of examination. She had complete records from the offices of all Serrano’s treating physicians. With the exception of brief testimony about treatment provided to Serrano at UCLA, to which Amrep did not object, the court did not allow Barras to testify about the diagnoses or treatments of any other physician or the dentist. The court permitted Barras to testify about her own diagnosis of Serrano, although her diagnosis was partially based upon her review of Serrano’s medical records. One-half hour prior to her deposition, Barras received from counsel and reviewed a compiled list of Serrano’s bills from various medical providers (Plaintiff’s Exhibit 65). Based upon her review, she opined that all of the charges were appropriate. Barras further testified regarding Serrano’s future medical and rehabilitative needs and the costs of such care.
On appeal, Amrep complains that the trial court improperly admitted Dr. Barras’s testimony regarding the necessity and cost of Serrano’s future care needs, as well as her testimony regarding the necessity and cost of the treatment already provided. Amrep forfeited its claim of error regarding the future care evidence by failing to raise the issue in the trial court. Amrep neither sought exclusion of this testimony in its motion in limine and supplemental briefing nor objected to it during trial. We therefore disregard Amrep’s contentions regarding Barras’s testimony as to the necessity and cost of future care.
Amrep asserted a successful hearsay objection to Barras’s testimony that her estimate of future dental care and its costs was “directly from the dental specialist.” The court struck this testimony.
We also disregard Amrep’s contention in its reply brief that Barras’s testimony was prohibited by former Code of Civil Procedure section 2034, as Amrep did not assert this argument in its opening brief. An issue or argument may not be raised for the first time in a reply brief without an explanation for failing to raise it earlier. (Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4; Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.) Amrep forfeited this argument by failing to assert it in the opening brief or explain its failure to do so.
Amrep noted in its opening brief that the Serranos “had designated properly licensed physicians to testify at trial … in their pre-trial expert designation (pursuant to California Code of Civil Procedure § 2034), but voluntarily withdrew those experts ….” Amrep did not, however, argue that former Code of Civil Procedure section 2034 or any other discovery provision acted as a bar to Barras’s testimony.
“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).) The key determination regarding the competency of a proposed expert witness is whether “the witness has sufficient skill or experience in the field so that his testimony would be likely to assist the jury in the search for the truth, and no hard and fast rule can be laid down which would be applicable in every circumstance.” (Brown v. Colm (1974) 11 Cal.3d 639, 645 (Colm).) “Nor is it critical whether a medical expert is a general practitioner or a specialist so long as he exhibits knowledge of the subject. Where a duly licensed and practicing physician has gained knowledge of the standard of care applicable to a specialty in which he is not directly engaged but as to which he has an opinion based on education, experience, observation or association with that specialty, his opinion is competent.” (Evans v. Ohanesian (1974) 39 Cal.App.3d 121, 128 [medical malpractice action].) Whether a witness qualifies as an expert is a discretionary determination for the trial court. (Colm, supra, 11 Cal.3d at pp. 646-647.) However, a trial court will be deemed to have abused its discretion if the witness has shown sufficient knowledge of the subject to warrant admission of his or her testimony. (Id. at p. 647.)
Barras clearly provided a foundation for introduction of her expert opinions through her testimony about her education and experience working as a licensed physician in rehabilitative medicine, in the course of which she acted as the case manager for patients and led cross-disciplinary teams of medical professionals. Barras’s extensive experience providing and overseeing rehabilitative care to seriously injured patients, along with her own training as a physician, made her aware of the types of treatments employed for various injuries and the fees charged for such treatment. In this regard, it is significant that she was not testifying to the standard of care in any particular specialty, but simply to whether the treatments Serrano received were proper ways to attempt to care for the types of injuries Serrano suffered and whether the charges for such treatments were reasonable. These matters fell squarely within Barras’s education, experience, and observations. At most, the extent of Barras’s knowledge of the particular specialties practiced by physicians who treated Serrano went to weight of her testimony, not its admissibility. (Colm, supra, 11 Cal.3d at p. 643.) Amrep cross-examined Barras about her qualifications in the specialties of neurosurgery, orthopedic surgery, and psychiatry. Although it did not do so, Amrep was free to introduce its own expert testimony regarding Serrano’s injuries and the appropriateness and expense of his medical treatments. Amrep was also free to argue that Barras’s testimony was entitled to little weight because she had not practiced in any of these specialty fields, though it failed to do so.
Amrep further argues that Barras had not seen Serrano’s complete medical records and that she spent just one-half hour reviewing the billing records. However, Barras testified she had reviewed Serrano’s complete medical records, apart from laboratory reports generated during his hospitalizations. Amrep has made no effort to demonstrate that a review of laboratory reports was critical to Barras’s ability to render an opinion on the propriety of the treatment provided to Serrano and/or the reasonableness of the charges for such treatment. With respect to the billing records, Barras testified that she reviewed a list of the amounts billed for various treatments and services, which was necessarily less voluminous than the actual bills. Amrep was free to cross-examine Barras about the adequacy of her review of the medical records and billing information and to argue that her testimony was entitled to little weight, but permitting her to testify was not an abuse of discretion.
An expert generally may base his or her opinion on inadmissible materials “of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.” (Evid. Code, § 801, subd. (b).) Thus, “it is appropriate for a physician to base his or her opinion in part upon the opinion of another physician.” (People v. Catlin (2001) 26 Cal.4th 81, 137.) While “it generally is not appropriate for the testifying expert to recount the details of the other physician’s report or expression of opinion” (ibid.), the trial court did not permit Barras to recount the diagnoses or other details from Serrano’s medical records. The court properly allowed her to state the name of the provider and the nature of the provider’s specialty. Apart from brief testimony regarding Serrano’s treatment at UCLA, to which Amrep did not object, Barras was not permitted to testify to any details contained in the records she reviewed. Amrep’s contention that Barras’s testimony was inadmissible because she relied upon the reports of other physicians has no merit.
Amrep also argues, without explanation, that Barras’s testimony was speculative, irrelevant, and misleading. At most, these appear to be alternative formulations of, or dependent upon Amrep’s other unmeritorious arguments regarding Barras’s testimony. In any event, the conclusory fashion in which Amrep asserts these arguments negates any need to address them. “When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
9. Jury’s question regarding special verdict form
Although it does not treat the matter as a separate issue, Amrep argues throughout its briefs that the jury did not find its product to be defective. This argument is based upon Amrep’s misreading of the record.
During deliberations, the jury sent the court a note stating, “We are unclear as to the part of number 6 as the line defective design relates to number 4. It is unclear.” The court returned the jury to the courtroom, in the presence of counsel, and asked for clarification. The jury foreperson explained that the jury had “a problem” with the phrase “the product’s defective design” in “Question No. 6” on the special verdict form. The foreperson said, “We didn’t feel that it was defective from question 4.” The foreperson agreed with the court’s suggestion that the confusion arose “[b]ecause question 4 doesn’t say ‘defective.’” The court suggested that “defective” be removed from the problematic phrase in Question No. 6, then conferred privately with counsel. Amrep suggested adding “defective” to Question No. 4, but did not object to the court’s proposed solution of removing the word from Question No. 6. In the presence of the jury, the court struck “defective” from Question No. 6. The court noted that, as modified, Question No. 6 “tracks with Question 4.” The foreperson indicated that the modification eliminated the confusion.
As modified, Question No. 6 read, “Was the product’s failure to perform as safely as an ordinary consumer would expect or the product’s design or inadequate warning that you found in either Question Nos. 3, 4, or 5, a substantial factor in causing harm to plaintiff, Ramiro Serrano?”
The special verdict clearly reveals that the jury found a design defect under the risk-benefit theory. Question No. 4 on the special verdict form asked the jury, “Did the benefits of the product’s design outweigh the risks of the design?” The jury responded “no.” The jury’s question clearly stemmed from an inconsistency in phrasing: Question No. 4 simply referred to “the product’s design,” whereas Question No. 6 referred to “the product’s defective design.” Because of this inconsistency, the jury was uncertain whether the phrase in Question No. 6 referred to its finding on Question No. 4. When the foreperson’s statement (“We didn’t feel that it was defective from question 4”) is read and understood in context, Amrep’s argument that the jury found the loader was not defective is clearly misleading and fallacious. Moreover, Amrep forfeited this point by failing to brief it under a separate heading. (Cal. Rules of Court, rule 8.204(a)(1)(B); Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1504, fn. 2.)
10. Issues raised for the first time in Amrep’s reply brief
In its reply brief, Amrep contends that the trial court erred by instructing the jury on the consumer expectations test for a design defect and the theory of inadequate warning. Amrep further contends that the trial court should have granted its motion for judgment notwithstanding the verdict on the ground of insufficiency of evidence. Amrep forfeited these issues by failing to raise them in its opening brief or explain its failure to do so. (Julian v. Hartford Underwriters Ins. Co., supra,35 Cal.4th at p. 761, fn. 4.)
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on appeal.
We concur: MALLANO, P. J. ROTHSCHILD, J.