Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court for Los Angeles County No. YC055464, Dudley W. Gray, Judge.
Lola P. Thompson, in pro. per., for Plaintiff and Appellant.
Waters, McCluskey & Boehle, Kevin G. McCluskey and Katherine E. Hay for Defendant and Respondent.
WILLHITE, J.
Plaintiff Lola Thompson sued Costco Wholesale Corporation (Costco) for injuries she allegedly suffered after she was hit by one or more shopping carts while sitting on a bench outside the Costco store in Inglewood. Costco conceded that a single shopping cart ran into her, but disputed that it caused any injury. Although the doctor who treated her at the emergency room to which she was taken reported that there was no evidence of an injury, Thompson maintained that she suffered significant injury to her knees. Thompson failed, however, to designate any medical expert witness or subpoena any treating physician to testify at trial about her alleged injury. On the day of the trial, the court granted Costco’s motions in limine to preclude Thompson (the only witness for plaintiff’s case in chief) from testifying about medical causation or medical bills other than the bills for the ambulance and the emergency room visit. The jury found that Costco was negligent, but that the negligence did not cause Thompson any injury. Thompson appeals, raising several issues, most of which flow from the trial court’s ruling that she was precluded from testifying about medical causation and her medical bills. Because we find the trial court’s ruling was correct, we affirm the judgment.
BACKGROUND
On May 20, 2006, Thompson was sitting on a bench outside of the Costco store in Inglewood, while Costco employee Devin Minter was gathering shopping carts. According to Minter, he had collected eight to ten carts, which were held together with a rope, and brought them up to the front of the store. When he stopped to take the rope off to line up the carts with the other carts in front, one of the carts slowly rolled away, down a little slope for about three to four feet, and hit Thompson. According to Thompson, the entire row of carts came rolling toward her so fast that she did not have time to move away. Minter asked Thompson if she was okay, and Thompson said she was not, and she wanted to speak to a manager. Thompson said her knees were burning, and it felt as if someone had cut her legs off. An ambulance was called, and Thompson was taken to Centinela Hospital. The treating physician in the emergency room reported that there was no evidence of any injury, but Thompson said that the doctor did not take her seriously and did not even x-ray her knees. She said that she has not been able to keep her balance ever since the incident, has been falling down repeatedly and is in a lot of pain.
She filed a negligence complaint against Costco on June 26, 2007. She was represented by counsel at the time she filed the complaint, but counsel moved to be relieved before the complaint was served on Costco. That motion was granted on August 22, 2007, and Thompson represented herself for the remainder of the case. Trial was set for May 27, 2008.
There was some confusion regarding Thompson’s address for service. At the time of the motion to be relieved as counsel, her address was listed as an address in Inglewood. At a hearing held on September 4, 2007, the court asked for her address, and she gave an address in Lynwood; she told the court she would file a change of address at the next hearing. A notice of change of address was filed on October 4, 2007. Although the orders after the September 4 and October 4 hearings were served on Thompson at the Lynwood address, the proof of service of summons she filed on October 4 listed the Inglewood address as her address.
On March 18, 2008, Costco sent a demand for simultaneous exchange of expert witness information to Thompson at the Lynwood address. Thompson, who apparently had moved out of the Lynwood address sometime earlier, did not receive the demand and did not designate any expert witnesses. She filed a change of address on March 27, 2008, changing her address from the Lynwood address back to the Inglewood address.
Costco filed two motions in limine before trial. The first sought to preclude Thompson from calling expert witnesses to testify, because she failed to designate any expert witnesses in response to Costco’s demand. The second sought to preclude Thompson from introducing evidence of medical causation or making reference to any alleged expert opinions regarding medical treatments, injuries, or medical causation. Thompson opposed both motions.
At the hearing on the motions on the day of trial, the trial court asked Thompson what expert witness she wanted to call. Thompson said that she wanted to call a treating physician but he told her that he would not testify, and she could not afford to pay an expert witness. She said that she would be her only witness. She discussed her proposed testimony with the court, and said that she had all of her medical and physical therapy reports. The court explained the hearsay rule to her, and told her that she could not testify about what her doctors told her or about her medical bills, except the bills for the ambulance and the emergency room.
The case proceeded to trial before a jury. Thompson testified on her behalf and Minter testified for Costco. Thompson followed the court’s instructions and did not testify about medical causation or her medical bills (she also did not present any evidence regarding the ambulance or emergency room bills, even though the trial court stated that such evidence would be permitted). During her cross examination, Thompson was asked about her answers to interrogatories, in which she stated that she had had no prior accidents. Costco’s attorney then asked a series of questions regarding medical treatment Thompson received after a car accident in 2000, including her doctor’s report that she had “patella femoral pain syndrome with knee pain from the motor vehicle accident in June of 2000.” Costco’s attorney also asked her if she read the emergency room report stating that there was no evidence of injury; Thompson admitted reading that report, but said it was from a doctor who was laughing about the incident. The attorney also asked her about an incident that occurred a week after the Costco incident in which Thompson fell while trying to catch a bus and landed on her knees, and another incident after that in which she fell getting off a bus.
She testified on redirect that she hit her knees on the dashboard in that accident, but that the pain did not last long.
The jury found that Costco was negligent, but that Costco’s negligence did not cause any injury to Thompson. Judgment was entered against Thompson, awarding Costco its costs. Costco filed a memorandum of costs, to which Thompson did not object or move to tax costs. Thompson appeals.
We note that the trial court was not asked to, and did not, instruct the jury on negligence, although the jury was instructed on contributory negligence and causation.
DISCUSSION
Thompson’s primary argument on appeal is that the trial court erred by granting Costco’s motions in limine and preventing her from introducing medical records or bills. She also argues that defense counsel violated the trial court’s orders by referring to medical reports during her cross examination, and that the trial court improperly awarded damages to Costco. She is incorrect.
A. Motions in Limine
Thompson argues that Costco’s first motion in limine -- to preclude her from calling expert witnesses -- should not have been granted because Costco sent its demand for exchange of expert witness information to the wrong address. It appears, however, that Costco sent the demand to the address Thompson had provided to the court in September and October 2007. She did not file a change of address, as required by California Rules of Court, rule 2.200, until after the demand was sent, even though she no longer received mail at her former address. Therefore, she cannot rely on her lack of receipt of the demand to argue that the motion in limine should not have been granted. (See, e.g., Whitehead v. Habig (2008) 163 Cal.App.4th 896, 903.) In any event, she was not harmed by the granting of Costco’s motion because she admitted that she did not have any expert to call because she could not afford to retain one.
Thompson’s failure to retain a medical expert to testify as to her injuries proved fatal to her opposition to Costco’s second motion in limine. Although there may be cases in which a medical expert is not needed to establish a plaintiff’s damages from a physical injury -- such as when the defendant does not contest that an accident caused an injury but only contests the amount of damages (see, e.g., Malinson v. Black (1948) 83 Cal.App.2d 375, 379) -- this case required expert medical testimony to establish both causation and damages because the emergency room report indicated that there was no evidence of any injury, and Thompson had a history of knee injuries both before and after the Costco incident. (See, e.g., Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402 [when there are several possible causes for an injury, “causation must be proven within a reasonable medical probability based upon competent expert testimony”].) Because there was no expert testimony to show that the Costco incident caused any medical injury to Thompson, or that she received any medical treatment for any such injury, the trial court properly precluded Thompson from presenting evidence of any medical bills she received or medical expenses she incurred -- other than the ambulance or emergency bills she received, which she could testify about because she could testify that she was taken by ambulance and treated at the emergency room immediately after the incident.
B. Costco’s Use of Medical Reports
Thompson argues that defense counsel violated the trial court’s order granting the motions in limine by asking her questions about medical reports. She is incorrect. First, the order granting motion in limine was directed at Thompson, not Costco. But in any event, Costco’s references to the medical reports were proper impeachment.
Costco’s theory at trial was that Thompson was not credible, and that she was not injured by the shopping cart hitting her. Costco’s attorney questioned Thompson about the injuries she suffered in 2000 and medical treatment she received for those injuries to show that she had not answered interrogatories truthfully and that she had a pre-existing knee injury. The attorney also questioned Thompson about the emergency room report that there was no evidence of injury to show that Thompson’s testimony that she suffered significant injuries from the incident was false. These questions were proper impeachment. (See, e.g., Mackoff v. Biltmore Garages, Inc. (1963) 222 Cal.App.2d 846, 851 [“a witness may be required to answer any question which tends to test his credibility and... as to such matters, liberal cross-examination is the rule”].)
C. Trial Court’s Award of Costs
Finally, Thompson argues that the trial court improperly awarded damages to Costco. She is mistaken. The trial court award costs to Costco. As the prevailing party in the litigation, Costco was entitled to its costs as a matter of right. (Code Civ. Proc., § 1032, subd. (b).) Although Thompson was entitled to challenge Costco’s memorandum of costs by filing a motion to tax costs under California Rules of Court, rule 3.1700(b), she did not do so. Thus, she forfeited any objections she could have raised to those costs. (Douglas v. Willis (1994) 27 Cal.App.4th 287, 289-290 [“The ‘failure to file a motion to tax costs constitutes a waiver of the right to object’”].)
DISPOSITION
The judgment is affirmed. Costco is entitled to costs on appeal.
We concur: EPSTEIN, P. J., MANELLA, J.