Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. CV254014. John I. Kelly, Judge.
Wood, Smith, Henning & Berman LLP, Kevin D. Smith and Nicholas M. Gedo for Defendants and Appellants.
Welebir Tierney & Weck and James F. Tierney III for Plaintiffs and Respondents.
OPINION
Wiseman, Acting P.J.
SEE DISSENTING OPINION
This appeal involves a tragic accident in which decedent, Anthony Silva, while driving late at night on minimal sleep, rear-ended a very slow-moving tractor trailer on Highway 58 east of Mojave. The impact of the rear-end collision killed decedent instantly and injured his wife and four children. His wife and children (plaintiffs) sued the driver of the tractor trailer, Martin Mateo, and the driver’s employer, Ortiz Trucking (defendants) for personal injuries and wrongful death. Following a trial in which liability was substantially contested, the jury found defendants 20 percent at fault and decedent 80 percent at fault for the accident. Regarding the issue of damages, however, the jury’s findings in the special verdict were perplexing at best. On the personal injury cause of action, the jury disregarded the parties’ stipulation as to the amount of plaintiffs’ special damages and inserted other sums (round numbers) instead, while awarding zero ($0) in general damages for those same personal injuries. On the wrongful death cause of action, the jury awarded zero ($0) in special damages and zero ($0) in general damages, even though there was uncontroverted evidence at trial that plaintiffs sustained both general and special damages as a result of decedent’s death. Neither party requested that the trial court send the jury back for further deliberation to clarify or correct the deficient verdict, and the jury was dismissed. After judgment was entered on the verdict, plaintiffs moved for a new trial based on inadequate damages in the wrongful death cause of action and insufficient evidence to support the allocation of fault. Defendants in turn moved for judgment notwithstanding the verdict (JNOV), asking the trial court to modify the judgment by reducing the special damages to the amounts stipulated by the parties. The trial court granted defendants’ JNOV motion and plaintiffs’ motion for a new trial of wrongful death damages, but decided against ordering a new trial of liability issues. Defendants appeal, contending among other things that the trial court abused its discretion when it granted a limited new trial as to wrongful death damages only when it was apparent that the jury had reached a compromise verdict. We agree, and accordingly reverse the limited new trial order and direct the trial court to order a new trial of all issues in the wrongful death cause of action.
Decedent was survived by his wife, Erin Silva, and their four minor children, Michael, Courtney, Corrine and Nicole, who together are the plaintiffs herein.
The parties stipulated that plaintiffs’ medical bills for their personal injuries sustained in the accident totaled $98,937. The jury awarded plaintiffs $300,000 in special damages, consisting of $200,000 for Erin Silva and $25,000 for each of the four children.
Neither party seeks a new trial of the plaintiffs’ personal injury cause of action.
In this brief descriptive summary, we occasionally refer to members of the Silva family (i.e., decedent and plaintiffs) by their first names. This is done for ease of description and convenience only, and no disrespect is intended thereby.
On June 6, 2003, at about 10:00 p.m., the Silva family left Fresno on a trip to Lake Powell in their Dodge Durango, with their boat towed behind them. Anthony Silva was the driver, his wife Erin Silva was beside him in the front passenger seat, and their children, Michael, Courtney, Corrine and Nicole were in the back passenger seats. The goal was to reach Hesperia, California by around 2:00 a.m. and to stay with relatives there for the remainder of the night, but they got off to a late start and traffic was heavy and slow.
At midnight, Anthony Silva pulled over at a rest stop in Tulare and said he was too tired to drive any further. Erin took over the driving, and Anthony went to sleep in the front passenger seat. Two hours later, Erin also became too exhausted to continue driving, stopped at a gas station in Bakersfield and woke up her husband. He rejected the suggestion of getting a motel room and assured his wife that he was “fine” and could drive the rest of the way while she got some sleep. Anthony resumed driving and Erin fell asleep in the front passenger seat. The next thing Erin remembered was being awakened by the noise and impact of the collision at approximately 4:00 a.m. The Silvas’ vehicle had crashed into the back end of a tractor trailer rig.
Erin believed her husband attended a 6:00 a.m. conference call at the office that morning, so he had started his day sometime before 6:00 a.m.
Also referred to herein as plaintiffs’ vehicle or the Durango.
Defendant Martin Mateo (Mateo), the driver of the tractor trailer, testified that he was en route from Fresno to Phoenix when the accident occurred. He had pulled into the Boron rest area off of Highway 58 at 4:00 a.m. on Saturday June 7, 2003, but found there were no parking places available. He then decided to get back on Highway 58, intending to proceed to the truck stop in Pilot about nine miles to the east. While accelerating on the return onramp from the rest area, he checked his rearview mirror and noticed that vehicle lights were approaching from a far distance behind him on Highway 58. As he completed his merge into the number two lane of traffic, those lights caught up with Mateo’s truck. They were the headlights of two trucks that passed him traveling in the number one lane as Mateo continued to increase his speed in the number two lane of Highway 58. It was approximately 10 to 20 seconds later, or about one-quarter mile past the merge point, that Mateo felt the impact of the rear-end collision and he immediately slammed on the brakes. He had not seen the Silvas’ vehicle behind him and he did not know what had happened until he got out of his truck after stopping. Mateo’s headlights and taillights were turned on and working properly and, according to Mateo, he still had his left turn signal on at the time of the accident.
Mateo testified that his speed at the time of the accident was approximately 45 or 50 miles per hour. Although he acknowledged his speed might have been as slow as 30 miles per hour, on further questioning he confirmed that 45 or 50 miles per hour was his best estimate. He acknowledged that he was taught in his training as a truck driver to use warning flasher lights when maintaining very slow speeds, such as when climbing a steep hill or coming down a grade, but he was not taught to use them when merging into traffic and steadily gaining speed, as he was doing prior to the accident. He admittedly did not have his warning flashers engaged at the time of the accident.
California Highway Patrol Officers Mulligan and Borne conducted an investigation at the scene of the accident. Officer Mulligan determined that all passengers in the Silva vehicle had been asleep when the accident occurred. Thus, no surviving occupant of the Silva vehicle could describe what happened. Officer Mulligan observed a single gouge mark in the pavement that marked the location of the collision impact. He walked several hundred feet west of that point and determined there were no skid marks on the pavement prior to point of the impact. Beyond the gouge mark (after the point of impact), Officer Mulligan found a tire mark that apparently came from the Durango’s right side tire that locked up once the Durango lodged under the rear of Mateo’s trailer. This postimpact skid mark ran parallel to and approximately one foot away from the fog lane, which is the lane’s right side boundary.
The number two lane (right lane) of eastbound Highway 58 is approximately 12 feet wide.
Officer Borne testified that decedent was found in the vehicle clasping a “[S]tyrofoam” cup in his right hand with some sort of dried brown liquid in the bottom, although on cross-examination he conceded that none of the photographs of the scene (which showed decedent pinned in the vehicle) substantiated his recollection. Officer Borne also testified that if the tractor trailer had been traveling at a speed of only 10 or 20 miles per hour, and assuming that it was not still merging from the rest area but was well beyond that point, it would potentially constitute a violation of Vehicle Code section 22400, subdivision (a), which prohibits impeding traffic by traveling at an unreasonably slow speed.
This statute provides: “No person shall drive upon a highway at such a slow speed as to impede or block the normal and reasonable movement of traffic unless the reduced speed is necessary for safe operation, because of a grade, or in compliance with law.” (Veh. Code, § 22400, subd. (a).)
Because there were no eye witnesses to the collision, a significant part of the evidence at trial was testimony from the parties’ respective expert witnesses, including experts on accident reconstruction and on the question of reasonable perception and reaction time. We now summarize this aspect of the case.
Plaintiffs’ accident reconstruction expert, Kerry Berg, testified that the difference in speeds between the two vehicles (or the “closing speed”) was about 45 miles per hour at the moment of impact. He estimated the actual speed of plaintiffs’ vehicle was about 55 miles per hour and the actual speed of defendants’ tractor trailer was about 10 miles per hour. Mr. Berg indicated that the commonly accepted duration of a driver’s “perception-reaction response” -- or the amount of time it takes an average driver to perceive a danger in the road and take specific action such as applying the brakes or swerving -- ranges from 1.75 to 2.25 seconds in situations of a sudden onset or a sudden emergency at nighttime. He deferred, however, to plaintiffs’ other expert, Dr. Richard Schmidt, regarding the appropriate perception-reaction time to apply to decedent in this particular case since the danger was not a “suddenly appearing event.”
Berg’s calculations of the vehicles’ actual speeds depended in part on his conclusion that the truck’s brakes did not function properly. Defendants pointed out that the brakes had undergone an inspection by the California Highway Patrol two days prior to the accident and passed the inspection.
Plaintiffs’ human factors expert, Dr. Schmidt, testified concerning the perception-reaction time of a driver approaching a stopped or slow-moving truck from behind at nighttime on a flat (level) highway with no background. Dr. Schmidt explained that the approaching driver would perceive a gradually developing situation in which the recognition of danger would take time. According to Dr. Schmidt, perception time in such cases is related to “visual expansion”-- that is, the visual phenomenon by which, as an observer approaches an object, its image increases in size. The truck’s taillights are initially observable to the approaching driver from one-half to one mile away. As the driver closes that distance to the truck, the image of the truck is “getting bigger,” but at first the rate of visual expansion of the image is too gradual to be noticed or appreciated. However, according to Dr. Schmidt, at a certain point or “threshold” in approaching the truck, the rate of expansion of the image becomes so significant that the driver finally realizes the truck ahead of him is stopped or moving at a very slow speed, and only then does the driver begin the process of reacting to the danger.
It is only when this threshold is reached that the stimulus information from the visual expansion is sufficient that, according to Dr. Schmidt, the driver begins to say “ooh, I am approaching this truck.”
Dr. Schmidt opined that, in the circumstances of this case which included nighttime driving on a dark stretch of flat, straight road, and a speed differential of 45 miles per hour, a reasonably alert driver would not have detected that the truck was moving very slowly until he was only 250 feet away from the rear of the truck. He based this opinion on laboratory studies by other psychologists, indicating that subjects approaching a stationary object of six feet in size at a speed of about 50 miles per hour were only able to detect that the object was not moving when they were 340 feet away. Since the 340-foot figure was achieved in an optimal laboratory setting in which the subjects were able to anticipate what to look for, Dr. Schmidt believed the figure was too high to reflect real life driving conditions. A reduction was required, and 250 feet was thought to be more realistic.
Finally, Dr. Schmidt provided an opinion as to reaction time. In his estimation, once the 250-foot threshold was reached in which an approaching driver would have recognized (from the rate of visual expansion) that the truck was stopped or moving very slowly, it would still take the driver another 3.5 to 4 seconds before he would “get [his] foot on the brake.” He said he selected the 3.5 to 4 seconds reaction time based on the fact that highway design engineers use that figure in determining how far in advance signs should be placed “ahead of when you want somebody to do something about the sign.” He admitted he knew of no studies that have found that drivers actually had a perception-reaction time of 3 to 4 seconds.
Defendants objected by motion in limine to the admission of Dr. Schmidt’s opinions, in particular the 250-foot threshold and the 3 to 4 second reaction time, on the grounds such opinions were inadmissible as speculation, lacked any foundation, and were unsupported by recognized scientific studies. Defendants reiterated their objections at the time of trial. The trial court overruled the objections.
Defendants’ accident reconstruction expert, Thomas Fugger, agreed the speed differential between the two vehicles was about 45 miles per hour, but concluded that defendants’ tractor trailer was probably traveling at a speed of 18 to 22 miles per hour and that plaintiffs’ Durango was traveling at a speed of about 69 miles per hour. Mr. Fugger testified that even assuming the driver of the approaching vehicle (i.e., decedent) would not have perceived the danger until the two vehicles were 250 feet apart, as plaintiffs’ expert had opined, there would still have been adequate time for the driver to brake and thereby avoid the collision altogether -- even at the high end of the range of commonly accepted reaction times. This was true regardless of whether the vehicles’ respective speeds were 55 and 10 miles per hour, or 65 and 20 miles per hour. According to Mr. Fugger, decedent had time to react and respond, and there was no evidence that he used his brakes or attempted to steer to avoid the accident.
According to Mr. Fugger, the commonly accepted perception-reaction time is 1.5 to 2.2 seconds. Mr. Fugger used 2.3 seconds in his calculations. He testified the number was conservative (or generous in plaintiffs’ favor) for a further reason: Assuming the driver already perceives the danger at the 250-foot threshold, it would be more accurate to apply only a reaction time of 0.75 seconds, rather than a perception and reaction time. Plaintiffs’ experts disputed that standard reaction times would be applicable to a gradually developing situation as opposed to a sudden onset hazard.
Each side also had an expert in the field of truck driving safety. John Riggins, the defendants’ expert, testified that getting up speed in a tractor trailer rig takes considerable time since “these rigs … can’t jump on it like a jack rabbit,” and consequently it would not be outside of safety standards for a truck to still be going slowly (even as slow as 10 to 25 miles per hour) shortly after merging onto the highway. Paul Herbert, the plaintiffs’ expert, testified that a big rig truck traveling at a speed of 10 miles per hour on a flat, open highway at nighttime, approximately 1,000 feet beyond the merge point, is an “incredible hazard” and a “recipe for disaster” because drivers do not expect or anticipate that a truck will be going that slowly. Since drivers often do not perceive how slowly the truck is moving until it is too late, the truck becomes a “slow-rolling brick wall.” Mr. Herbert also testified that when a big rig driver is traveling at such slow speeds, he should warn other drivers by activating his four-way flashers.
The evidence at trial regarding plaintiffs’ bodily injuries and wrongful death damages was essentially undisputed. The parties stipulated to the amount of plaintiffs’ special damages sustained in the personal injury cause of action, which totaled $98,937 and was itemized according to the medical expenses of each plaintiff. Plaintiffs called Dr. Kendall Wagner, an orthopedic surgeon, who testified to the nature and extent of the plaintiffs’ physical injuries and the reasonableness and necessity of their treatment. Regarding plaintiff Erin Silva’s injury, Dr. Wagner testified that she recovered about 90 percent of normal function in her foot and ankle but had some residual nerve damage. On the wrongful death cause of action, plaintiffs called economist David Weiner, who estimated the present value of decedent’s lifetime earnings at $1,658,940. Finally, Erin Silva testified regarding decedent’s relationship with plaintiffs, including that he and Erin had a strong marriage and he was a devoted father to their four children. Erin Silva also testified regarding the emotional grief and anguish each family member had suffered as a result of decedent’s death.
Defendants did not rebut or refute any of the above testimony regarding damages, and did not offer any evidence on these matters.
Following approximately three hours of deliberation, the jury returned a verdict that allocated 20 percent of the fault to defendants and 80 percent of the fault to decedent. That verdict, however, failed to award any damages (general or special) in the wrongful death cause of action, and failed to award any general damages in the personal injury cause of action. Although special damages were awarded in connection with the personal injury cause of action, the verdict disregarded the stipulated amount of special damages (i.e., $98,937) and instead awarded a total of $300,000 as special damages, consisting of $200,000 to Erin Silva and $25,000 to each of the four children.
Neither party requested that the jury be sent back for further deliberations to correct or clarify its findings and the jury was dismissed. On January 18, 2007, the trial court entered judgment for plaintiffs in the amount of $300,000.
Plaintiffs moved for a new trial on two grounds: inadequate damages (i.e., zero) were awarded by the jury as to the wrongful death claims of plaintiffs, and the evidence was insufficient to support the jury’s apportionment of liability. Defendants filed a motion for JNOV, requesting that the court modify the judgment by reducing special damages to the amounts stipulated by the parties. While defendants opposed the new trial motion, they also took the position that if a new trial of the wrongful death cause of action is granted, it should be a complete new trial on both liability and damages. The trial court granted defendants’ JNOV, thereby reducing the judgment to the stipulated amount of special damages. At the same time, the trial court granted plaintiffs’ motion for new trial on the issue of wrongful death damages. The motion for new trial of liability issues was denied. Defendants filed their timely appeal from the grant of motion for new trial and also from the underlying judgment. Plaintiffs subsequently filed a protective cross-appeal.
DISCUSSION
In defendants’ appeal from the judgment, they contend that the trial court erroneously admitted Dr. Schmidt’s expert testimony and that his testimony was the only evidence of defendants’ potential negligence liability for the accident. Thus, assuming we agree that Dr. Schmidt’s testimony was inadmissible, defendants assert a defense judgment must be entered. In defendants’ appeal from the trial court’s order granting a partial new trial, they contend the trial court erred for two reasons: (1) any right to a new trial was waived as a result of plaintiffs’ failure to request that the jury be sent back to correct or clarify its verdict; and (2) even if a new trial was not waived, a complete new trial of the wrongful death cause of action (i.e., both liability and damages) was required because the jury plainly reached a compromise verdict. We will address these contentions in turn.
I. Even if Some or All of Dr. Schmidt’s Testimony Was Inadmissible, That Would Not Entitle Defendants to Judgment as a Matter of Law
Defendants first claim that they are entitled to a defense judgment as a matter of law because, allegedly, Dr. Schmidt’s expert testimony was the only evidence of defendants’ negligence as a potential cause of the accident and all of his opinions were inadmissible.
We reject defendants’ argument because a jury could reasonably conclude that defendants were partially at fault for the accident even without Dr. Schmidt’s testimony. Other testimony provided substantial evidence that Mateo was driving his tractor trailer rig at a speed of only 10 to 20 miles per hour on a straight, level highway, at nighttime, at a location well past the merge point. These circumstances alone are sufficient to permit a reasonable inference that Mateo was driving at an unreasonably slow or unsafe speed. As the trial court noted without considering Dr. Schmidt’s testimony, “the evidence supported the conclusion that the truck and trailer were traveling unreasonably slower than an attentive driver might anticipate at that time of night.” Officer Borne confirmed that such circumstances would potentially indicate a violation of Vehicle Code section 22400, which section prohibits impeding traffic by driving at unreasonably slow speeds. He agreed that when a vehicle impedes traffic, it creates “a hazard to vehicles coming up behind [it].” Plaintiffs’ expert on truck driving safety, Mr. Herbert, testified that a truck moving at such slow speeds would create a dangerous hazard to approaching motorists who would not expect or anticipate that a truck would be traveling so slowly on the highway. And although Dr. Schmidt’s testimony purported to give a scientific analysis of a typical driver’s perception and reaction time when approaching a stopped or slow moving vehicle from behind at nighttime with little or no visual background -- which analysis would require expert testimony -- at a much more basic level any layman or juror would understand from common experience that an extremely and unexpectedly slow-moving vehicle on the highway at nighttime may represent an unreasonable safety hazard to an approaching driver. (See Spolter v. Four-Wheel Brake Service Co. (1950) 99 Cal.App.2d 690, 694 [jury may draw reasonable inferences from circumstantial evidence based on its common knowledge or experience]; and see Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 548 [circumstantial evidence allowing reasonable inference of negligence constitutes substantial evidence thereof].)
Further, the evidence that the Silvas’ vehicle was traveling straight ahead within the lane of traffic and at the speed limit at the time of the accident provided a reasonable basis for the jury to conclude that decedent, even if he was not completely attentive and alert, was at least not unconscious or asleep since he was apparently keeping the car steady in the lane. That being so, decedent’s apparent failure to apply the brakes prior to the collision was arguably and reasonably due, not to decedent falling asleep at the wheel, but a reduced attentiveness on decedent’s part -- a fact that would not necessarily exonerate the defendants. That is, even if decedent’s alertness briefly faltered to some degree or another, or was less than optimum, the unreasonably slow speed of Mateo’s truck could reasonably have been found by the jury to have been at least a partial or contributing factor in the accident for purposes of comparative fault.
Additionally, assuming that Mateo’s tractor trailer was traveling at an unreasonably slow speed, which conclusion was supported by the evidence, that rate of speed apparently contributed to the extent of injury because there was testimony that the protective under-ride guard on a tractor trailer (such as here) does not function properly when there is a speed differential in excess of approximately 30 miles per hour. Finally, as pointed out by the trial court, the evidence at trial that two big rig trucks passed Mateo a mere 10 to 20 seconds prior to the accident allows the reasonable inference that decedent’s view of Mateo’s vehicle was “‘masked’” by the other trucks until seconds before the accident. All of this is to say that even without Dr. Schmidt’s expert testimony, there was sufficient evidence, circumstantial and otherwise, to permit the jury to conclude that defendants were at least partially at fault.
To conclude, even if defendants are correct that some or all of Dr. Schmidt’s testimony was inadmissible, that conclusion does not mean a defense judgment is required as a matter of law. Accordingly, we proceed to the remaining contentions in defendants’ appeal relating to whether the trial court properly granted a partial new trial on the issue of wrongful death damages. We will briefly return to some of the issues raised by defendants concerning the admissibility Dr. Schmidt’s testimony in a later part of this opinion in connection with our remand of the case for new trial.
II. Plaintiffs Did Not Waive Right to a New Trial
“Although the loss of the right to challenge a ruling on appeal because of the failure to object in the trial court is often referred to as a ‘waiver,’ the correct legal term for the loss of a right based on failure to timely assert it is ‘forfeiture,’ because a person who fails to preserve a claim forfeits that claim. In contrast, a waiver is the ‘“intentional relinquishment or abandonment of a known right.”’ [Citations.]” (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) Hence, the failure of a party to object before the jury was dismissed more accurately raises the issue of forfeiture rather than waiver. Nevertheless, since the parties and the cited cases use the term “waiver” in this context, we use it also.
Defendants contend that the plaintiffs’ right to a new trial based on an alleged defect in the verdict was waived by failure to object before the jury was dismissed. Generally speaking, when an error is claimed based on a deficiency in the verdict, counsel should request its correction or clarification before the jury is discharged, and “failing this, counsel may lose the right to object.” (7 Witkin, Cal. Procedure (4th ed. 1997) Trial, § 385, pp. 438-439 [and cases cited therein]; Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131 [waiver found based on failure to object to allegedly defective special verdict form prior to dismissal of jury].) However, the waiver rule is not rigidly applied and often depends on the circumstances involved and the nature of the defect in the verdict. As our Supreme Court explained: “Frequently, failure to object to the form of a verdict before the jury is discharged has been held to be a waiver of any defect. [Citations.] However, waiver is not automatic, and there are many exceptions. [Citations.] [¶] Waiver is not found where the record indicates that the failure to object was not the result of a desire to reap a ‘technical advantage’ or engage in a ‘litigious strategy.’ [Citations.]” (Woodcock v. Fontana Scaffolding & Equipment Co. (1968) 69 Cal.2d 452, 456, fn. 2.) Additionally, waiver will not be found where the special verdict is “fatally inconsistent” (Morris v. McCauley’s Quality Transmission Service (1976) 60 Cal.App.3d 964, 972) or is “hopelessly ambiguous” (Woodcock, supra, at p. 456).
We conclude the waiver rule does not apply in the present case because the findings in the special verdict were fatally inconsistent. (See Morris v. McCauley’s Quality Transmission Service, supra, 60 Cal.App.3d at p. 972.) This was not a mere lack of formality, completeness or certainty in the verdict, or an ambiguity therein which might have been corrected or clarified upon further deliberation pursuant to Code of Civil Procedure section 619. Rather, the jury concluded that defendants were 20 percent at fault for the accident, and yet found “$0” in general and special wrongful death damages, even though there was uncontroverted evidence presented at trial that plaintiffs sustained such damages. The zero damage recovery could not be logically or consistently reconciled with the jury’s finding of 20 percent liability. (See City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 682 [inconsistent verdict arises from irreconcilable findings therein]; Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336 [judgment reversed and new trial ordered where jury found defendant liable but awarded plaintiff no damages].) Additionally, the record does not indicate that the plaintiffs’ failure to object to the special verdict prior to the jury’s discharge was based on a desire to reap a technical advantage or engage in a litigious strategy. Under all the circumstances, we hold there was no waiver of the right to request a new trial.
This section provides: “When the verdict is announced, if it is informal or insufficient, in not covering the issue submitted, it may be corrected by the jury under the advice of the court, or the jury may be again sent out.” (Code Civ. Proc., § 619.)
The dissent maintains that there is no rule of appellate practice more strongly entrenched than the rule of waiver. What the dissent ignores, however, is the well established exception to the waiver rule where the special verdict is fatally inconsistent. (Morris v. McCauley’s Quality Transmission Service, supra, 60 Cal.App.3d 964; Remy v. Exley Produce Express, Inc. (1957) 148 Cal.App.2d 550; Campbell v. Zokelt (1969) 272 Cal.App.2d 315; Lambert v. General Motors (1998) 67 Cal.App.4th 1179, 1182-1183.) Under such circumstances, Code of Civil Procedure section 619 does not require an objection be made in order to preserve the issue for review. (Morris v. McCauley’s Quality Transmission Service, supra, 60 Cal.App.3d 964, and authorities cited therein.) The dissent concedes that the verdict is inconsistent on its face, but ignores that line of cases entirely, without explanation.
The dissent cites Crowe v. Sacks (1955) 44 Cal.2d 590, 597-598 for the proposition that even with a compromised verdict, Code of Civil Procedure section 619 grants the court authority to send the jury back for further deliberations. Clearly, the trial judge always retains that authority. The question here, however, is whether a party’s failure to request the judge to do so waives the right to make an objection later. Crowe does not address the waiver issue at all and thus does not support the view that defendants waived a right to challenge this verdict.
After emphasizing the importance of requiring parties to challenge errors in the trial court at a time when the court can act to correct the error, i.e., before the jury is discharged, and after pointing out that both parties in this case “ignored the opportunity to clarify the record and to correct any error while the matter was still before the trial court,” the dissent seeks to apply the waiver rule against defendants but not against plaintiffs. If the dissenting view was followed, defendants would be precluded from seeking relief (new trial on liability and damages) from the inconsistent verdict because they failed to object before the jury was discharged, but plaintiffs would obtain relief (new trial on damages) from the inconsistent verdict even though they also failed to object before the jury was discharged.
III. The Trial Court Erred in Granting a Partial New Trial of Wrongful Death Damages
We now come to the crux of this appeal, which is the question of whether the trial court abused its discretion in granting a new trial limited to wrongful death damages when there were indications of an improper compromise verdict by the jury. In this matter we must decide whether the trial court’s order granting a partial new trial, viewed in light of the whole record, constituted a manifest abuse of discretion. (Liodas v. Sahadi (1977) 19 Cal.3d 278, 285.)
The power of a trial court to grant a new trial as to some issues, while denying it as to others, is well established. (Code Civ. Proc., § 657 [“a new or further trial [may be] granted on all or part of the issues”].) “‘The decision on limiting a new trial to the issue of damages rests in the first instance in the sound discretion of the trial judge. A new trial limited to the damage issue may be ordered where it can be reasonably said that the liability issue has been determined by the jury. An abuse of discretion must be shown before a reviewing court will reverse the trial judge’s decision.’” (Liodas v. Sahadi, supra, 19 Cal.3d at p. 285.) “When the trial judge has exercised this discretion to grant a limited new trial his action will be upheld where the issue reserved as final has been fully, fairly and separately determined by the trier of fact and no injustice will result.” (Baxter v. Phillips (1970) 4 Cal.App.3d 610, 616.) “However, even when it appears that the issue of liability was correctly determined, a new trial limited to damages ‘should be granted … only if it is clear that no injustice will result. [Citations.] … [It] has been held that a request for such a trial should be considered with the utmost caution [citations] and that any doubts should be resolved in favor of granting a complete new trial.’ [Citation.] In short, ‘When a limited retrial might be prejudicial to either party, the failure to grant a new trial on all of the issues is an abuse of discretion.’ [Citation.]” (Liodas v. Sahadi, supra, at pp. 285-286.)
As explained by Witkin, a new trial limited to the issue of damages is considered an abuse of discretion if the jury reached a compromise verdict: “Verdicts are sometimes rendered in personal injury or death actions that, in view of the evidence of injuries, suffering, and medical and other expenses, are clearly inadequate. Common experience suggests that these are the result of compromise, some jurors believing that the evidence fails to establish liability, but yielding to the extent of agreement on a small recovery. It would be unfair to the defendant to ignore this unmistakable evidence of compromise and to accept the verdict for the plaintiff at face value as a determination of liability. Accordingly, it is well settled that the error calls for a general new trial, and a limited order is an abuse of discretion.” (8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, § 115, pp. 619-620 [and cases cited therein].) Accordingly, “[w]hen the issue of liability is sharply contested, and the jury awards inadequate damages, the only reasonable conclusion is the jury compromised the issue of liability, and a new trial is required.” (Shaw v. Hughes Aircraft Co., supra, 83 Cal.App.4th at p. 1346.) “‘[W]here … the evidence on liability is in sharp conflict and the award is manifestly so inadequate as to suggest a compromise verdict, the case should be remanded for retrial on all issues.’” (Wilson v. R.D. Werner Co. (1980) 108 Cal.App.3d 878, 883.)
A trio of decisions by our Supreme Court in 1952 clarified the types of situations indicative of a “compromise verdict” in which a trial court’s order granting a partial new trial of damages is an abuse of discretion. In Leipert v. Honold (1952) 39 Cal.2d 462 (Leipert), the court recognized the following rule: “[A]n abuse [of discretion] is shown when the damages are inadequate, the record discloses that the issue of liability is close, and other circumstances indicate that the verdict was probably the result of prejudice, sympathy, or compromise or that for some other reason the liability issue has not actually been determined.” (Id. at p. 467.) In Leipert, the jury had awarded only $500 for personal injuries that were extremely serious in nature, liability was a close call, and the jury demonstrated great difficulty in arriving at a nine-to-three verdict. Under the circumstances, Leipert concluded “the record in this case so strongly indicates that the inadequate verdict for [the plaintiff] was the result of compromise that it would be unjust to [the] defendants to have a new trial limited to the issue of damages.” (Id. at p. 470.)
In Hamasaki v. Flotho (1952) 39 Cal.2d 602 (Hamasaki), a case of sharply conflicting evidence of liability (i.e., some evidence that the defendant driver was speeding through a residential neighborhood; other evidence that the plaintiff darted into the street from behind a car), the jury awarded total damages of only $1,000. (Id. at p. 605.) The parties had stipulated that special damages were $817, meaning that the verdict provided only $182.90 for general damages. (Ibid.) Considering the extensive, nearly fatal injuries sustained by the six-year-old plaintiff, the general damages were grossly inadequate. (Id. at p. 606.) Hamasaki further noted that the trial court, in granting the limited new trial, allowed that the motion would be denied if the defendant consented to a judgment of $7,500 -- a proposal which would increase the general damages by more than 36 times what the jury awarded. (Id. at p. 607.) The great disparity between the jury’s assessment of damages and that of the trial court was an additional circumstance indicating a compromise verdict. Based on all of these factors, the court concluded the verdict was the result of an improper compromise necessitating a reversal of the limited new trial. (Id. at p. 607.)
In reaching this conclusion, Hamasaki rejected the argument that the verdict should be upheld merely because special damages were adequate:
“Plaintiffs contend, however, that whenever the jury allows full compensation for special damages and any amount, no matter how small, for general damages, the trial court’s decision to allow a limited new trial will not be reversed on appeal. Such a view offers the convenience of a mechanical formula, but it ignores the principles that govern the granting of partial new trials. A new trial limited to the damages issue may be ordered by the trial court when it can reasonably be said that the liability issue has been determined by the jury. A refusal to allow for undisputed special damages is usually convincing evidence that the jury failed to make a decision of the liability issue, and that circumstance has therefore been stressed in a number of appellate opinions. [Citations.] In a particular case, however, gross inadequacy of unliquidated general damages may be just as convincing.… As a general rule, it is only when the verdict allows a substantial, even though inadequate, amount for general damages that it can reasonably be concluded that the jury’s error related solely to the damages issue. [Citations.] In view of [the plaintiff’s] serious injuries, $182.90 cannot be regarded as substantial.” (Hamasaki, supra, 39 Cal.2d at pp. 606-607.)
In Rose v. Melody Lane (1952) 39 Cal.2d 481, 488 (Rose), the Supreme Court again articulated the basic rule: “The granting of a new trial limited to the issue of damages appropriately rests in the discretion of the trial court, but an abuse of that discretion is shown when the record discloses that the issue of liability is close, the damages are inadequate, and there are other circumstances that indicate that the verdict was probably the result of a compromise of the liability issue.” In the Rose case, in addition to the first two factors (i.e., liability issue close and damages grossly inadequate), the Supreme Court noted the additional circumstance that the jury requested a rereading of certain testimony bearing on the defendant’s negligence liability. (Id. at pp. 489-490.) A compromise verdict was found and the order granting a limited new trial was reversed. (Id. at p. 490.) The Rose court further explained as follows: “When the jury fails to compensate plaintiff for the special damages indicated by the evidence, and despite the fact that his injuries have been painful, makes no award or allows only a trifling sum for his general damages, the only reasonable conclusion is that the jurors compromised the issue of liability, and a new trial limited to the damages issue is improper. [Citations.] A contrary conclusion is justified only when the evidence of defendant’s negligence is ‘overwhelming.’ [Citations.]” (Id. at p. 489; see also Malcomson v. Pool (1969) 276 Cal.App.2d 378, 381 [limited new trial order reversed; verdict was about $20 more than “medical specials” but included nothing for lost wages shown to exceed $5,000]; Lauren H. v. Kannappan (2002) 96 Cal.App.4th 834, 837-842 [order of a complete new trial affirmed; a compromise verdict was indicated by excessive special damages and zero general damages in case of severe injuries and conflicting evidence of liability].)
Here, there was ample evidence that the jury reached a compromise verdict. First, the issue of liability was in sharp conflict and was a close call. Since this was a rear-end collision case, the jury could reasonably have returned a defense verdict. On the other hand, some fault might be found on defendants’ part for driving at an unreasonably slow speed. Second, damages were clearly inadequate because the special verdict found defendants 20 percent at fault but awarded zero to plaintiffs as to both general and special damages on the wrongful death cause of action despite uncontroverted evidence that substantial general and special damages were sustained by plaintiffs. Third, the fatal inconsistencies in the verdict as already alluded to herein indicate an effort by the jury to reach a compromise. The inconsistencies included (1) disregarding the stipulated amount of medical specials and inserting a different (rounded) number as special damages on the personal injury cause of action, and (2) awarding zero in general and special damages on the wrongful death cause of action despite evidence of such damages and the finding of 20 percent fault. That is, if the jury actually believed defendants were 20 percent at fault, it could not -- consistent with that finding -- conclude that there were zero damages on the wrongful death cause of action. Fourth, the trial court’s order granting a partial new trial on wrongful death damages proposed an additur of $9,658,940 to the wrongful death cause of action (including $8,000,000 in noneconomic damages). The huge discrepancy between the jury’s finding ($0) and that of the trial court is a further circumstance indicating a compromise verdict by the jury.
The dissent’s contention that this special verdict was not a compromised verdict runs afoul of numerous California appellate decisions, including Leipert, supra, 39 Cal.2d 462; Hamasaki, supra, 39 Cal.2d 602; Rose, supra, 39 Cal.2d 481; Shaw v. Hughes Aircraft Co., supra, 83 Cal.App.4th 1336; and Wilson v. R.D. Werner Co., supra, 108 Cal.App.3d 878, none of which the dissent attempts to analyze or distinguish.
We conclude there is a reasonable probability that the jury compromised the issue of liability, and therefore it would be unjust to limit a new trial to the issue of damages alone. (See, e.g., Rose, supra, 39 Cal.2d at p. 489 [if damage award grossly inadequate and liability a close call, “the only reasonable conclusion is that the jurors compromised the issue of liability”]; Shaw v. Hughes Aircraft Co., supra, 83 Cal.App.4th at p. 1346 [same]; Wilson v. R.D. Werner Co., supra, 108 Cal.App.3d at p. 884 [where factors showed verdict “was probably the result of a compromise on the liability issue,” a new trial on all issues required]; Leipert, supra, 39 Cal.2d at p. 470 [where compromise verdict indicated, it would be “unjust” to the defendants to have a new trial limited to damages].) Accordingly, the trial court’s order granting a partial new trial of wrongful death damages constituted an abuse of discretion, and we reverse that order with directions that the trial court order a complete new trial of the wrongful death cause of action. (Malcomson v. Pool, supra, 276 Cal.App.2d at p. 381.)
In so holding, we clarify a prior point. In Part I of this opinion, we rejected defendants’ argument that if Dr. Schmidt’s testimony was found inadmissible a defense verdict would be required as a matter of law. In so ruling, we noted that the jury’s finding of comparative fault was reasonably supportable by other substantial evidence at trial. That conclusion is not inconsistent with our determination here that a compromise verdict occurred in which the jury’s findings on both damages and liability were likely intertwined. (See Hamasaki, supra, 39 Cal.2d at p. 608 [issues of liability and damages interwoven in compromise verdict].) While it is true that in the abstract the jury’s particular allocation of fault was within the range of outcomes that were reasonably supportable under the evidence, nevertheless, in light of the fact that the fault allocation was part of a compromise verdict, defendants are entitled to a new trial on the liability issue (as well as damages) because the comparative fault determination was presumably affected by the jury’s compromise.
IV. Evidentiary Issues on Retrial
We briefly address defendants’ contentions regarding the admissibility of Dr. Schmidt’s testimony to the extent necessary to guide the trial court on retrial of the wrongful death cause of action. (See Code Civ. Proc., § 43; Liodas v. Sahadi, supra, 19 Cal.3d at p. 286.)
Defendants objected, in a pretrial motion in limine and during the trial, to certain expert opinions offered by Dr. Schmidt. Defendants raise those same objections in this appeal. In a nutshell, defendants contend that the critical opinions offered by Dr. Schmidt were lacking in an adequate factual or scientific foundation.
The applicable principles of law are well established. Under Evidence Code section 801: “If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is: [¶] … [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” As provided in Evidence Code section 803, “The court may, and upon objection shall, exclude testimony in the form of an opinion that is based in whole or in significant part on matter that is not a proper basis for such an opinion.”
“The value of opinion evidence rests not in the conclusion reached but in the factors considered and the reasoning employed. [Citations.] Where an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value. [Citations.] In those circumstances the expert’s opinion cannot rise to the dignity of substantial evidence.” (Pacific Gas & Electric. Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135.) “An expert opinion has no value if its basis is unsound. [Citations.] … Evidence Code section 801, subdivision (b), states that a court must determine whether the matter that the expert relies on is of a type that an expert reasonably can rely on ‘in forming an opinion upon the subject to which his testimony relates.’ (Italics added.) We construe this to mean that the matter relied on must provide a reasonable basis for the particular opinion offered, and that an expert opinion based on speculation or conjecture is inadmissible. [Citations.]” (Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564.) An expert opinion may not be based on speculative or conjectural data, and an expert opinion that assumes facts contrary to proof destroys the evidentiary value of the opinion. (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 338.)
Based on the above principles, defendants first contend there was no foundation for Dr. Schmidt’s opinions regarding perception and reaction time because the relevance of such opinions depends on the unproven assumption that decedent was awake and percipient before the accident. This contention fails because there was evidence indicating the vehicle operated by decedent was going in a straight line, reasonably within the lane of traffic, and traveling at about the speed limit. The jury could reasonably infer from these facts that decedent was at least sufficiently alert and attentive to keep the vehicle steady and straight ahead in the lane of traffic.
Defendants next argue Dr. Schmidt’s testimony relating to the phenomenon known as “‘visual expansion’” (and its effect on perception and reaction time) was inadmissible because (1) the scientific study relied on by Dr. Schmidt was conducted under conditions that allegedly differed significantly from the conditions in which the accident occurred, and (2) certain opinions by Dr. Schmidt were entirely lacking in a foundation and appeared to be speculation. (See 1 Witkin, Cal. Evidence (4th ed. 2000) Opinion Evidence, §§ 30-31, pp. 560-562; Lockheed Litigation Cases, supra, 115 Cal.App.4th at pp. 564-565.) In Lockheed Litigation Cases, the Court of Appeal held that an expert’s declaration was properly excluded, as lacking in a reasonable basis, when it relied on a study relating to an increased cancer rate in persons who are exposed to over 130 different chemicals, but did not indicate whether persons exposed to only the five chemicals supplied by the defendant had an increased cancer rate. (See Lockheed Litigation Cases, supra, at pp. 564-565.)
To reiterate, Dr. Schmidt provided testimony on the subject of the visual expansion phenomenon and its relationship to perception and reaction time. Based on this phenomenon, he indicated his opinion of what a typical driver’s perception and reaction time would be when approaching a stopped or slow moving vehicle from behind at nighttime with little or no visual background. Dr. Schmidt indicated that under such conditions there is only a gradual recognition by the driver of the fact that he or she is approaching a stopped or slow moving vehicle, in part because of the gradual rate of visual expansion of the image (as perceived by the driver) of the stopped or slow moving vehicle. He testified that the point at which a typical driver realizes or perceives there is a stopped or slow moving vehicle is called the “visual expansion” threshold.
Dr. Schmidt also referred to a number of published articles that refer to this same phenomenon.
At the hearing under Evidence Code section 402 to consider defendants’ objections raised in the motion in limine, Dr. Schmidt referred to studies involving subjects in a laboratory setting in which there were simulated speeds of 40, 60 and 80 miles per hour, and in which the subjects approached a six-foot stationary object. The study sought to measure the visual expansion “threshold” or the point at which the subjects realized they were approaching a stationary object. When the results of these studies were tabulated and placed on a graph, it could then be estimated that for a closing speed of about 45 to 50 miles per hour, the visual expansion “threshold” was approximately a distance of 340 feet. Although the laboratory study alluded to resulted in a visual threshold of 340 feet, Dr. Schmidt’s opinion was that under actual driving conditions, as opposed to the optimal conditions in a laboratory setting, a more realistic visual threshold would probably be only 250 feet.
As a preliminary matter, we agree with the trial court that these studies provided an adequate foundation for Dr. Schmidt to testify generally regarding the visual expansion phenomenon and to explain based on such studies how a driver may not fully realize there is a stopped or slower moving vehicle in front of him or her until reaching a particular threshold distance. The problem, however, was Dr. Schmidt’s specific conclusion that 250 feet would represent the typical driver’s threshold of visual expansion. This conclusion lacked a proper foundation for at least two reasons. First, other than the bare statement that the 340-foot threshold indicated in the studies was arguably too high since it represented optimal laboratory conditions, no reasonable basis for picking the particular distance of 250 feet was ever given, and it appears to be mere speculation or conjecture. Second, it was never adequately explained, with a factual or scientific basis, why the difference in size of the object observed in the laboratory studies (a six-foot object) as compared to the tractor trailer (an eight-foot object) would have no effect on the driver’s visual expansion threshold. For these reasons, we conclude from the record before us that the portion of Dr. Schmidt’s testimony identifying a 250-foot visual threshold should have been excluded. It is of course possible that on retrial a more adequate basis or foundation for Dr. Schmidt’s opinion on this matter will be provided. We are not precluding the admission of such testimony in the event a proper foundation is provided.
Defendants have also objected to Dr. Schmidt’s testimony that once the visual expansion “threshold” is reached, it would take an average driver as long as 3.5 to 4 seconds to react by applying the brakes. Dr. Schmidt rejected the use of generally accepted reaction times that are measured based on a “suddenly presented stimulus.” He said he selected the 3.5 to 4 seconds reaction time based on the fact that highway design engineers use those figures in determining how far in advance signs should be placed “ahead of when you want somebody to do something about the sign.” He admitted he knew of no studies that have found that drivers actually had a perception-reaction time of 3 to 4 seconds. It is clear from this summary that Dr. Schmidt’s opinion that a driver would have a perception-reaction time of 3.5 to 4 seconds had no foundation or factual basis and was essentially speculation. No specific correlation was shown, and none is apparent, between the assumptions involved for placement of highway signs by highway design engineers and a driver’s ability to perceive and react when confronted with a perilous traffic hazard such as a slow or stopped vehicle. Accordingly, on the record before us, we conclude that portion of Dr. Schmidt’s testimony should have been excluded by the trial court. Again, it is possible that on retrial a more adequate basis or foundation for Dr. Schmidt’s opinion on this question will be shown. We are not precluding the admission of such testimony in the event a proper foundation is provided.
Defendants also contend that Dr. Schmidt’s opinions were barred by the “Kelly/Frye Rule” of People v. Kelly (1976) 17 Cal.3d 24. We decline to reach that issue, however, as the record before us is wholly inadequate to allow us to make even a prima facie evaluation of this contention, since there is nothing to indicate whether the opinions expressed by Dr. Schmidt were based on a novel scientific technique or methodology, which is a preliminary requirement for the Kelly/Frye analysis to apply. (People v. Johnson (2006) 139 Cal.App.4th 1135, 1148.)
V. Cross-Appeal and Dispositional Issues
When an appeal is made from a new trial order, including an order for a partial new trial, then the entire judgment is subject to appellate review at that time. (Spencer v. Nelson (1947) 30 Cal.2d 162, 164; Beavers v. Allstate Ins. Co. (1990) 225 Cal.App.3d 310, 330.) “One effect of an order granting a new trial is, of course, to vacate the judgment; however, when an appeal is taken from such an order the vacating effect is suspended, and the judgment remains effective for the purpose of an appeal from the judgment.” (Spencer v. Nelson, supra, at p. 164.)
Here, the appeal by defendants was from both the order granting partial new trial (see Code Civ. Proc., § 904.1, subd. (a)(4)) and from the underlying judgment (as modified by the trial court’s JNOV) that preceded the new trial order. As discussed previously, we have rejected the grounds for defendants’ appeal from the judgment. The remainder of defendants’ appeal concerned the trial court’s order granting a partial new trial of wrongful death damages. Defendants successfully argued that a new trial is required of the entire wrongful death cause of action, including both damages and liability issues. Plaintiffs, on the other hand, were satisfied with the trial court’s order granting a partial new trial of wrongful death damages, but filed a protective cross-appeal from the judgment to preserve their right to a retrial of wrongful death damages in the event the trial court’s order was reversed for any reason. Notably, both the appeal and cross-appeal have, in the parties’ respective arguments regarding the new trial order, focused exclusively on the question of a new trial of the wrongful death cause of action, and no party to the appeal or cross-appeal seeks to relitigate the personal injury cause of action, nor was that relief ever sought in the trial court.
The primary question before us, then, boils down to whether the wrongful death cause of action is to be retried as to damages only, or as to both damages and liability. Either way, the relief sought in plaintiffs’ cross-appeal becomes moot and we dismiss the cross-appeal for that reason. (See 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 485, p. 531.) On the main question, we have concluded for reasons previously explained that because the jury’s verdict was the product of an improper compromise, the broader new trial relief is required in this case (i.e., a new trial of both damages and liability in the wrongful death cause of action). At the same time, because the parties have not pursued a new trial of the personal injury cause of action and have not challenged the fact that the trial court’s new trial order was limited to the wrongful death cause of action, we do not order a retrial of the personal injury cause of action. That portion of the case need not be relitigated (see, e.g., Schelbauer v. Butler Manufacturing Co. (1984) 35 Cal.3d 442, 457; Sharp v. Automobile Club of So. Ca. (1964) 225 Cal.App.2d 648, 653-654) and we limit our remand for new trial to the wrongful death cause of action.
The cross-appeal is filed under case No. F052873.
In light of these facts, it appears the parties have adopted as their own the jury’s compromise of the personal injury cause of action as modified by the trial court’s JNOV.
DISPOSITION
The order granting a partial new trial of wrongful death damages is reversed, with directions that a new trial of both damages and liability in the wrongful death cause of action be ordered. The cross-appeal is dismissed as moot. Costs are awarded to defendants.
I CONCUR: Kane, J.
I dissent. Levy, J.
I have no quarrel with the majority’s conclusion that the verdict on its face is inconsistent with the evidence and with the instructions given. The jury found the defendant 20 percent liable for the plaintiffs’ injuries, yet awarded the plaintiffs nothing on the wrongful death action. At the same time, in the personal injury action, the jury awarded plaintiffs nearly three times the amount of special damages stipulated to by the parties and, despite evidence to the contrary, nothing for general damages. The majority decides that the only reasonable conclusion to be reached from this verdict is that the jury improperly compromised on the issue of liability and concludes that it was an abuse of discretion to order only a limited retrial, relying on a trio of California Supreme Court cases decided in 1952, Leipert v. Honold (1952) 39 Cal.2d 462; Hamasaki v. Flotho (1952) 39 Cal.2d 602, and Rose v. Melody Lane (1952) 39 Cal.2d 481. If I believed the majority’s legal conclusion to be correct, I would agree these authorities are applicable. Under the circumstances, however, I believe the issue has been waived and, in addition, question whether the only reasonable conclusion to be drawn is that the jury reached a compromised verdict. Given the deferential abuse of discretion standard of review applicable to a ruling by a trial court on a motion for new trial, I would affirm the trial court’s order since defendants have waived the ability to raise the compromised-verdict issue on appeal.
There is no principle or rule of appellate practice more strongly entrenched than the one requiring a party to challenge alleged error in the trial court at a time when the court can act to correct the error. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185 [appellate courts will not reverse for procedural defects that could have been but were not challenged during trial]; see also Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 1997) ¶¶ 8:265; pp. 8-146 to 8-147.) Here, the time to raise any objection to the verdict’s inconsistency was immediately after the verdict was announced.
When a verdict is inconsistent or problematic on its face, like here, the party adversely affected should request a more certain verdict. Further, if the trial court has any doubts about the clarity of the verdict, the trial court should have the jury continue deliberating, with proper instruction, to correct the verdict under the authority granted to it by Code of Civil Procedure section 619. (Brown v. Regan (1938) 10 Cal.2d 519, 523; Mendoza v. Club Car, Inc. (2000) 81 Cal.App.4th 287, 302.) Section 619 provides: “When the verdict is announced, if it is informal or insufficient, in not covering the issue submitted, it may be corrected by the jury under the advice of the Court, or the jury may be again sent out.” Section 619 applies to an inconsistent verdict (Mendoza v. Club Car, Inc., supra, at p. 302; Johnson v. Marquis (1949) 93 Cal.App.2d 341, 355 [court was authorized by section 619 to instruct jury to retire and correct original inconsistency]) or to any verdict that is inadequate for some “‘need, purpose or use.’” (Sherwood v. Rossini (1968) 264 Cal.App.2d 926, 929.) Even where the trial court finds that a challenged verdict was the result of jury compromise, section 619 grants authority to send the jury back for further deliberation. (See Crowe v. Sacks (1955) 44 Cal.2d 590, 597-598 [trial court finds compromised verdict after jury failed to compensate plaintiffs for special damages indicated by evidence and awarded only trifling sum for general damages; trial court had jurisdiction to send jury back for further deliberation and to instruct that its determination of issues should not be based upon compromise].)
All future references are to the Code of Civil Procedure.
Despite the obvious inconsistency of the verdict, neither party objected or sought clarification under section 619. It is well established by numerous authorities that when a verdict is insufficient or inconsistent and the jury is not required to clarify it, any error is waived unless the party relying upon the verdict has asked that the deficiency be corrected. (Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456, fn. 2; Lynch v. Birdwell (1955) 44 Cal.2d 839, 851; Brown v. Regan, supra, 10 Cal.2d at p. 523; Padilla v. Greater El Monte Community Hospital (2005) 129 Cal.App.4th 667, 670 [failing to timely object to purported error in trial court ordinarily waives objection on appeal]; John Y. v. Chaparral Treatment Center, Inc. (2002) 101 Cal.App.4th 565, 579 [failure to request modification of special verdict form results in waiver of claim that it was insufficient]; Wright v. Title Ins. & Trust Co. (1969) 274 Cal.App.2d 252, 262.)
I do not agree that the verdict in this case is fatally inconsistent or hopelessly ambiguous. As the trial court explained in detail, the verdict is supported by the evidence on the issue of liability. In my view, it is entirely possible that the jury, in awarding round number special damages in the amount of $300,000 in the personal injury cause of action and zero as general damages for both the personal injury and wrongful death causes of action, were attempting to award plaintiffs a simply calculated 20 percent of the damages it found. If the trial court had further instructed the jury that, in awarding damages, it must distinguish between the two causes of action and between special and general damages, and reminded the jury that the stipulated amount of special damages was $98,937, the jury could well have clarified the verdict and prevented us from having to engage in an exercise of appellate clairvoyance.
The majority correctly quotes the Woodcock decision as stating that waiver is not found “where the record indicates that the failure to object was not the result of a desire to reap a ‘technical advantage’ or engage in a ‘litigious strategy.’” (Woodcock v. Fontana Scaffolding & Equip. Co., supra, 69 Cal.2d at p. 457, fn. 2.) Earlier cases do not require a finding that the party failing to object is seeking a technical advantage or engaging in litigious strategy. (See Lynch v. Birdwell, supra, 44 Cal.2d at p. 851 [no discussion of litigious strategy or technical advantage]; Brown v. Regan, supra, 10 Cal.2d at p. 523 [court states “If mere inaction alone will constitute a waiver of a defect in a verdict, it is self-evident that the conduct of appellant’s attorney in actively opposing the efforts of the attorney for the respondent to have the defect cured will constitute a waiver”].) Nonetheless, I would find an obvious litigation strategy here. By remaining silent, plaintiffs were left with a verdict awarding them only a fraction of what they had hoped to win, coupled with strong grounds upon which to request a new trial on the issue of damages. A new trial on the issue of damages alone was a win-win situation for the plaintiffs. In contrast, there was a risk that if the jury were asked to clarify the verdict, the plaintiffs would be left with the small award or less. On the other hand, the verdict was much less than expected by the defense who had suggested in closing argument that the jury award $750,000. The defense may not have wanted the issue of damages clarified out of fear the amount awarded would increase. In short, both parties had sound strategic reasons to remain silent and not seek clarification of the verdict.
It is no doubt possible that the majority is correct and the jury reached a compromised verdict. However, I believe it is equally possible that the jury did not. Applying the analysis used by the majority in finding a compromised verdict, I can reasonably argue a contrary conclusion is justified. First, there was evidence that defendants’ truck was driving at a slow speed without any emergency flashers, and the trial court found that the evidence supported the 80/20 liability split. Given the liability assessment, the damages are not insubstantial or inadequate when the verdict is considered as a total damage award of $300,000. After all, special damages were stipulated to be in the amount of $98,937. In addition, there are no other circumstances such as extraordinarily long deliberations, jury notes indicating jury confusion, or juror comments or affidavits to support a finding that the liability verdict was compromised. The fact that two reasonable but different conclusions can be reached, in my opinion, underscores the inappropriateness of appellate resolution. This is an issue that should have been raised before the trial court when there was still time to correct any error. Doing so might have ensured that the jury did not return a compromised verdict or, at a minimum, make a record to the contrary.
The majority reaches its conclusion that the jury compromised its liability finding by drawing conclusions from the verdict itself, not from knowledge about what the jury actually did. As an appellate court, we should not be forced to guess, no matter how well reasoned, about what the jury did, when both parties ignored the opportunity to clarify the record and to correct any error while the matter was still before the trial court. I believe the basic rule of waiver which is embedded in the appellate practice of law has been improperly disregarded in this case. I would affirm, deferring to the trial court’s ruling on the motion for new trial.