Opinion
D051168
10-30-2008
CAROL S. VIGLIOTTI, Plaintiff and Respondent, v. SARAH HARKLEROAD, Defendant and Appellant.
Not to be Published
Sarah Harkleroad backed into the side of Carol S. Vigliottis car in a parking lot. Harkleroad admitted liability, but disputed the nature and extent of Vigliottis damages. The jury found in favor of Harkleroad, determining her negligence was not a substantial factor in causing harm to Vigliotti. The court granted Vigliottis motion for new trial on the basis that the evidence showed Harkleroads negligence was a substantial factor in causing injury to Vigliotti.
Harkleroad appeals, asserting (1) the courts finding there was insufficient evidence to support the jurys verdict must be reversed because the court failed to specify the evidence that supported its order in violation of Code of Civil Procedure section 657; and (2) the jurys verdict was not "against the law" as there was substantial evidence to support it.
We first conclude that we cannot affirm the courts grant of a new trial based upon insufficiency of the evidence to support the jurys verdict in favor of Harkleroad because the court failed to give a written statement of reasons specifying the evidence in support of its order. We further conclude that the jurys verdict was not against the law as there was substantial evidence for the jurys finding the accident did not cause any injuries to Vigliotti. Accordingly, we reverse the order granting Vigliotti a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
Because we are reviewing an order granting a motion for new trial that failed to include the statement of reasons for the decision as required by section 657, we review the evidence presented at trial de novo to determine if there is any substantial evidence to support the jurys verdict. (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 628 (Raiders ).)
A. Vigliottis Testimony
Vigliotti testified that moments before Harkleroad backed into her vehicle she gripped the steering wheel very hard and slammed on her brakes. She further testified that the fleshy part of her left hand between the thumb and first finger was up against the steering wheel when she forcefully grabbed it. According to Vigliotti, her entire body stiffened up and she rocked forward and backward. She testified that she was not certain if any portion of her body hit the interior part of the car, but she sustained bruising and swelling in her left hand, so "its very possible that it did." Immediately following the impact, Vigliotti tried to reach over and roll down her window using her left hand, but she could not, as the pain in her left hand was so great. She went to work after the accident because her boss was on vacation and she had to take care of the office. However, she kept her hand in her lap and did not use it all day because of the pain.
That evening, Vigliotti went to urgent care complaining about pain in her neck, her shoulder, her left hand and her lower back. She testified that although she could open, close and flex her hand, she could not do so "without a great deal of pain." At urgent care, an X-ray was taken of her neck and back. The urgent care doctor prescribed Vicodin, as well as over-the-counter Motrin, Advil or Tylenol.
Vigliotti testified she had a medical appointment one week later, and her hand was tender between her finger and her thumb, and across the top of her hand. The doctor X-rayed her left hand and put it in a splint which immobilized and separated the fingers of her hand from the thumb. Vigliotti testified that as early as October 22, 2003, two weeks post-accident, her doctors diagnosed an occult fracture in her left hand, and put her in a cast from her elbow up to her fingers. She stated that although her hand had been casted for two months, followed by splinting and physical therapy, she continued to have pain and a lack of strength in the left hand.
Vigliotti was referred to Dr. Delois Bean, an orthopedic hand specialist. At her first visit in May 2004, Dr. Bean suggested a cortisone injection, which Vigliotti had in June 2004. Vigliotti testified she initially had some improvement, but when she returned to Dr. Bean in September 2004 she continued to have the same complaints in her left hand. At that appointment, Dr. Bean recommended surgery, consisting of placing donor bone in the fracture to help in healing. Vigliotti testified that she no longer had any use of her hand and was in constant pain.
Dr. Bean performed surgery on Vigliottis hand in October 2004, after which her arm was again placed in a cast. She remained in the cast for several months. In March 2005, Dr. Bean told Vigliotti the donor bone did not "take" and recommended another surgery. Vigliotti testified when the second surgery was recommended she had so much pain in her hand that she was unable to dress herself, cook, clean, or do her favorite hobbies. Vigliotti stated, "I couldnt do the everyday things of life." Vigliotti was aware that even after the second surgery she would have limitations in her hand.
Vigliotti testified that prior to the accident she had no pain or limitations in her left hand. She further testified that as a result of the injuries sustained in the accident, her medical expenses totaled $56,744.90.
On cross-examination, counsel for Harkleroad questioned Vigliotti concerning the extent of her injuries, confirming she was only seeking damages for injuries to her left hand:
"Q Now just so were clear here, youre not making a claim for injuries to your right shoulder in this accident; is that correct?
"A Thats correct.
"Q Youre not making any claims for injuries to any other part of your body than your neck, left shoulder, back, and left hand; is that correct?
"A Only the left hand." (Italics added.)
B. Testimony of Dr. Delois Bean
Dr. Delois Bean, Vigliottis treating doctor testified at trial. She is an orthopedic surgeon with a specialty in hand surgery who performs approximately 240 surgeries per year on the hand and wrist.
Dr. Bean testified that she first saw Vigliotti in May 2004, on a referral from another orthopedic surgeon. Her physical examination of Vigliotti revealed swelling in the scaphoid trapezoid trapezium (STT) joint in the left hand, and discomfort when she "loaded" the joint vertically Vigliotti told Dr. Bean that the problems in her hand dated back to the motor vehicle accident in October 2003 and told her what treatments she had received since the accident. Dr. Beans opined after reviewing Vigliottis medical records pre- and post-accident, and after treating her and performing the surgeries, that Vigliotti sustained a fracture to her hand superimposed on preexisting arthritis as a result of the automobile accident with Harkleroad. Specifically, Dr. Bean opined that she suffered "post-traumatic arthritis, superimposed [on] pre-existing degenerative arthritis." She also opined that the preexisting arthritis made Vigliotti more susceptible to an injury. According to Dr. Bean, the findings of the doctor at urgent care on the date of the accident of a contusion/bruise to the dorsum of her left hand were consistent with a fracture at the STT joint. Dr. Bean further explained the differences between the "snuff box" region and the "navicular region." She did that because she opined that the urgent care notes were consistent with the injuries Vigliotti sustained in the accident, even though the doctors indicated there was no navicular tenderness.
Dr. Bean further concluded that the two surgeries she performed were related to the automobile accident. The fracture of the STT joint sustained in the accident aggravated the basilar joint causing her to have to undergo two surgeries. Dr. Bean concluded that the injuries sustained were a result of the accident even though this was a low energy accident. She testified that a low energy accident would include a parking lot accident at a low speed.
Dr. Bean testified that she was surprised the urgent care doctor did not splint Vogliottis hand because the diagnostic testing Vigliotti underwent there was because the doctors suspected a fracture. If she only had preexisting arthritis, she would have been discharged from the clinic.
During the first surgery in October 2004, Dr. Bean identified a healed STT fracture. She found a large gap in the bone which she opined was a compression fracture which healed in a depressed position.
Dr. Bean did not opine about any soft tissue injuries to Vigliottis shoulder or neck.
C. Testimony of Defense Expert Dr. David Smith
Defense expert Dr. David Smith performed a medical examination of Vigliotti, including a review of all her medical records. At that time, Vigliottis injuries to her neck, back and left shoulder had resolved. In his opinion her left wrist injury was permanent, and she had decreased motion, limitation in extension and flexion, scarring, and numbness in the tip of the thumb. Dr. Smith opined that Vigliotti did not suffer a fracture to her hand as a result of the accident. Rather, it was his opinion that her preexisting degenerative arthritis caused her to have the two surgeries.
However, he also opined, based upon his the examination and after having reviewed Vigliottis medical records from 1987 through 2005, that she sustained a cervical strain to her neck, a left shoulder strain and a left hand strain as a result of the accident. It was his opinion that the left hand sprain was superimposed upon her existing arthritis. However, this opinion was based solely upon Vigliottis subjective complaints to her treating doctors.
D. Testimony of Peter Burkhard, Ph.D.
Peter Burkhard was a defense expert who opined about the mechanics of the crash. Dr. Burkhard reviewed repair estimates of both vehicles, color photographs of both vehicles, Harkleroads responses to interrogatories, and the depositions of Vigliotti, Harkleroad, Dr. Bean, and Dr. Smith.
He testified that the repair bills associated with Vigliottis Saturn vehicle described damage to the left-hand rear door panel and costs related to paint blending. The total cost of repairs to Vigliottis vehicle was $787.47.
Dr. Burkhard stated that Vigliotti had testified in deposition that the predominant motion she suffered was back and forth. (3RT 336)! However, Vigliotti was hit from the side. (3RT 336)! Dr. Burkhard opined that in a side impact collision, you would expect that anything inside the vehicle is going to move towards the point of impact. Vigliotti did not describe any such movement in her deposition.
Dr. Burkhard testified that a back and forth motion would be attributable to braking only. He opined that the forces of the impact were very comparable or less than that associated with what Vigliotti was doing at the time of the accident, namely braking from a non-moving, parked position. He further opined that Harkleroads speed at the time of the accident was five or six miles per hour. Dr. Burkhard testified that Vigliottis vehicle experienced a change of vehicle speed to its right of about four miles per hour. Dr. Burkhard noted that Vigliotti did not testify in her deposition that her left shoulder made contact with the door.
E. Procedural Background
Trial commenced in February 2007. After all the evidence was received, Vigliotti made a motion for a directed verdict on the issue of causation. Vigliottis counsel argued, "I think that the issue here is not causation because I believe that there is adequate testimony that as a result of this accident injuries were caused. Its the extent of the injuries that [were] caused." The court agreed with Vigliottis counsel, stating, "Look, [heres] the case. Number one, Ms. Harkleroad caused the accident. Number two, as a result of the accident, Ms. Vigliotti did suffer some damage. This case is all about what damage she suffered and how much did it cost to take care of it. Period." The court then asked Harkleroads attorney if she disagreed with that statement. Harkleroads attorney responded, "No, I do not disagree with Your Honors characterization of the issues in this case." However, the court never ruled on Vigliottis directed verdict motion.
Thereafter, the court instructed the jury regarding the elements of Vigliottis negligence, stating, "Carol Vigliotti claims she was harmed by Sarah Harkleroads negligence: Sarah Harkleroad agrees that she was negligent in causing the accident but denies that the negligence caused Vigliotti the full extent of the harm claimed by Vigliotti." (Italics added.) However, the court also instructed the jury that Vigliotti must prove that "Harkleroads negligence in causing the accident was a substantial factor in causing [Vigliottis] harm."
In closing argument, counsel for Vigliotti argued there was no dispute Vigliotti suffered some damage, the only dispute was the extent of the injuries she suffered in the accident: "[W]as Carol Vigliotti harmed following this accident? Again, I think that is easy for you to determine and something that you really dont need to consider, because there has been testimony from both doctors . . . that following this accident, Mrs. Vigliotti did in fact suffer harm. I also think that the medical records are very clear that she did suffer harm. [¶] Now where the issue comes in is, what is the harm? What is the extent of the injury?" Counsel for Vigliotti noted that Dr. Smith "admits to certain injuries and he admits she sustained a spraining injury to her left shoulder, a spraining injury to her neck, [and] a spraining injury to her left hand . . . ." Counsel described her damages, including medical bills, loss of earnings, and loss of household services. Those items totaled approximately $116,000. Counsel also requested an award of pain and suffering in the amount of approximately $240,000.
Defense counsel argued that the jury should find Vigliotti suffered no damages as a result of the accident. Alternatively, Harkleroads attorney argued she should only receive compensation for her first visit to the doctor concerning the alleged sprain to her neck and left shoulder.
A special verdict form was used in this case. The first question read:
"1. Was Sarah Harkelroads negligence a substantial factor in causing harm to Carol Vigliotti? [¶] ___ YES ___ NO
"If your answer to question 1 is yes, then answer question 2. If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form."
The jury answered, "NO," to question No. 1.
Vigliotti filed a motion for new trial. She raised two bases for the motion: "The evidence was insufficient to justify the Special Verdict," and "[t]he verdict is contrary to law." In support of her motion, she relied on the testimony of both her expert, Dr. Bean and defense expert, Dr. Smith.
At oral argument, the court noted that both the plaintiff and defendants medical experts opined that Vigliotti suffered an injury to her neck and back. The court also noted that both experts said there was some injury to the left wrist, but disagreed as to the extent of that injury. The court also stated there was no dispute that Vigliotti complained of pain in her hand at urgent care the night of the accident. The court noted that the jury must have overlooked the strain injuries that were undisputed and was focused only on the request for damages for the broken hand. The court further stated, "The evidence by the experts . . . was that [Harkleroads] negligence[] did[] or was a substantial factor in causing harm to her. [¶] The question was what was the harm and how much were the damages? And in this case I have to grant a new trial based on that reasoning. [¶] . . . [¶] . . . If they thought that it was too much money they should have said yes on number one, and then come back and said $10,000 . . . ."
In an unsigned minute order, the court stated, "Plaintiffs Motion for a New Trial is GRANTED for the following reason: Based upon the evidence, it was shown that the defendants negligence was a substantial factor in causing injury to the plaintiff." No written statement of reasons was given by the court.
DISCUSSION
A. Standard of Review
"When the trial court provides a statement of reasons as required by section 657, the appropriate standard of judicial review is one that defers to the trial courts resolution of conflicts in the evidence and inquires only whether the courts decision was an abuse of discretion. [Citations.] But when there is no statement of reasons, an appellate courts use of an abuse of discretion standard of review would subvert the purposes that this court has identified as underlying section 657s statement-of-reasons requirement." (Raiders, supra, 41 Cal.4th at p. 636.) Thus, the absence of a statement of reasons "calls for independent review of the trial courts order granting a motion for a new trial." (Id. at p. 640.)
B. Analysis
"The authority of a trial court in this state to grant a new trial is established and circumscribed by statute. [Citation.] Section 657 sets out seven grounds for such a motion: (1) `Irregularity in the proceedings; (2) `Misconduct of the jury; (3) `Accident or surprise; (4) `Newly discovered evidence; (5) `Excessive or inadequate damages; (6) `Insufficiency of the evidence; and (7) `Error in law. " (Raiders, supra, 41 Cal.4th at p. 633.)
"Section 657 provides for the situation in which an order granting a new trial is not supported by a specification of reasons. [S]ection 657 states: `On appeal from an order granting a new trial the order shall be affirmed if it should have been granted upon any ground stated in the motion, whether or not specified in the order or specification of reasons . . . . Consequently, when as here an order granting a new trial states the ground [upon which the motion is granted], but the trial court fails to specify the reasons for that conclusion, the order is not void. [Citations.] The order may still be sustained if a new trial should have been granted upon any ground set out in section 657 except the grounds of insufficiency of the evidence or inadequate or excessive damages. [Citation.]" (Raiders, supra, 41 Cal.4th at p. 636.)
The burden is on the party that is seeking to sustain the defective new trial order "to advance any grounds stated in the motion upon which the order should be affirmed, and a record and argument to support it [citation] and to persuade the reviewing court that the trial court should have granted the motion for a new trial. Thus, the effect of the trial courts failure to file a statement of reasons in support of the order granting a new trial is to shift the burden of persuasion to the party seeking to uphold the trial courts order." (Raiders, supra, 41 Cal.4th at p. 641.)
As we have noted, Vigliottis motion for new trial specified two statutory grounds on which the motion for new trial would be based: (1) "The evidence [presented at trial] was insufficient to justify the [verdict]"; and (2) "[t]he verdict is contrary to law." Because the trial court did not provide a statement of reasons specifying the evidence upon which it was relying in granting the motion for new trial, we may not uphold the courts order based upon "insufficiency of the evidence." (Raiders, supra, 41 Cal.4th at p. 634.) Moreover, for reasons explained below, we conclude that the judgment is not "against law" and, thus, the grant of a new trial was error.
In Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 906-907, the California Supreme Court explained that "[a] jurys verdict was `against law only if it was `unsupported by any substantial evidence, i.e., [if] the entire evidence [was] such as would justify a directed verdict against the part[ie]s in whose favor the verdict [was] returned. [Citations.] `[T]he function of the trial court on a motion for a directed verdict is analogous to and practically the same as that of a reviewing court in determining, on appeal, whether there is evidence in the record of sufficient substance to support a verdict. [Citations.]" Thus, we review the record to determine whether the verdict in favor of Harkleroad was unsupported by substantial evidence. (Id. at p. 907; Hoffman-Haag v. Transamerica Ins. Co. (1991) 1 Cal.App.4th 10, 15.) In conducting this review, we consider the evidence in the light most favorable to the prevailing party and indulge all legitimate and reasonable inferences to uphold the jury verdict if possible. (Sanchez-Corea, supra, 38 Cal.3d at p. 907.)
As detailed, ante, Vigliotti testified she was only seeking damages for injuries to her left hand. Her doctor did not opine she suffered any soft tissue injuries as a result of the accident. Although Harkleroads expert testified concerning her subjective complaints of soreness in her neck and shoulder, the jury was free to reject that testimony. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632 [" ` "[p]rovided the trier of fact does not act arbitrarily, he [or she] may reject in toto the testimony of a witness, even though the witness is uncontradicted. [Citations.]" [Citation.] The rule is applied equally to expert witnesses "].) Given the mechanics of the accident, the slow rate of speed, the minimal forces involved, and nominal vehicle damage, the jury could have concluded the injuries to her left hand were caused by a preexisting arthritic condition.
Moreover, the court never ruled on Vigliottis motion for a directed verdict on causation. Thereafter, the jury was instructed, without objection, that Vigliotti must prove her injuries were caused by the accident. Counsel for Harkleroad argued in closing, again without objection, that the jury should find Vigliotti suffered no damages. Question No. 1 on the special verdict form asked the jury to determine if the accident caused no injury to Vigliotti. The jury answered, "NO," to that question. On this record we cannot say the verdict was against the law.
DISPOSITION
The order granting a new trial in favor of Vigliotti is reversed and the superior court is instructed to enter judgment in favor of Harkleroad. Harkleroad shall recover her costs on appeal.
WE CONCUR:
BENKE, Acting P. J.
IRION, J. --------------- Notes: All further statutory references are to the Code of Civil Procedure.