Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. VCVVS040701. Michael A. Sachs, Judge.
Ellis Law Corporation and Andrew L. Ellis for Plaintiff and Appellant.
Higgins Harris Sherman & Rohr, John J. Higgins and Daniel M. Parlow, for Defendant and Respondent.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
Plaintiff Jessica Anderson appeals from judgment in favor of defendant Osborn McCraney following the jury trial of Anderson’s personal injury action; the jury found that McCraney had been negligent but that his negligence had not caused her damages. Anderson contends it was undisputed that she suffered some damages as a result of the accident, and the jury improperly failed to award any damages. She also contends the trial court abused its discretion in admitting the testimony of a defense expert in neuroradiology who had not been properly designated. We find error in the jury’s failure to award Anderson the cost of her ambulance transportation and emergency room treatment immediately following the accident, and we remand for the limited purpose of determining the amount of such damages. In all other respects, we affirm the judgment.
II. FACTS AND PROCEDURAL BACKGROUND
The case arose from a three-vehicle automobile accident in December 2004 in which McCraney’s car rear ended the Ford pickup truck Anderson was driving, and Anderson’s pickup impacted the vehicle in front of her. McCraney testified he had been driving at 20 miles per hour and had seen Anderson’s truck for only a second before the impact. He jammed on the brakes, leaving an eight- to 10-foot skid mark on the road. The impact pushed his grill back into his radiator and caused his airbags to deploy. He was cited for driving too fast for the traffic conditions, and he pleaded no contest.
At trial, McCraney claimed Anderson had hit the vehicle in front of her before he had hit her pickup. Specifically, he testified he had seen the rear end of her car “raise like she had hit something in front of her, ” although he admitted he had never seen Anderson hit the vehicle in front of her, and he had not heard the noise of another impact. He testified in his deposition that Anderson’s pickup was stopped when he first saw it. He admitted he did not know whether his own impact had pushed Anderson’s pickup into the vehicle in front of her. He never spoke to the driver in front of Anderson, and did not even look at the other vehicle. He never told the police he thought Anderson had first hit the vehicle in front of her. The other driver was not called to testify, and McCraney did not offer any accident reconstruction expert.
Anderson called John Muse as an accident reconstruction expert witness, who testified based on his review of photographs of the vehicles, the damage, the accident scene, and medical records. Muse testified that McCraney had caused the accident by “improperly impacting the rear end of the stopped Ford.” Based on the deployment of airbags and the damage to the vehicles, Muse determined that McCraney had been travelling at least 15 miles per hour at the time of impact. Muse further testified the evidence was consistent with “the Ford being stopped behind the Dodge [the front car] with no impact first.” He testified there was no evidence of a double impact, which would have created two distinct damage patterns on the front end of the middle vehicle and rear end of the front vehicle. He testified that because of “weight transfer, ” the rear end of a vehicle goes up “a couple [of] inches” whenever it brakes. Muse testified that if Anderson had impacted the front car first, the police could have cited her for driving at unsafe speed, and that did not happen.
Anderson testified her vehicle was stopped when she was hit from behind and pushed into the vehicle in front of her. Paramedics arrived at the scene of the accident, and Anderson told them her knee and neck were hurting. Anderson was transported by ambulance to the emergency room, where she complained of knee and neck injuries. X-rays were taken of her knee, and she was informed that she had suffered a knee sprain and a strained neck. She received a prescription for Tylenol with Codeine, was given a knee brace, and was told to wear it for about a week. Her neck pain was better the next day, but her knee was swollen for “a few days.”
About two weeks after the accident, she began to experience back pain that was so severe she was confined to bed. Dr. Michael Schiffman testified he had first examined Anderson in 2006. In October 2006, Dr. Schiffman performed lumbar disc surgery to remove herniation on Anderson’s spine.
Anderson concedes on appeal that “[t]he jury may have concluded that, although McCraney was negligent, [her] back injuries were preexisting, so no damages would be available.” The evidence concerning her back injury is therefore not set forth in full in this statement of facts.
During her deposition, Anderson denied having any back problems, injuries, or examinations before the collision. Anderson told her treating physician, Dr. Schiffman, that she had had no “significant preexisting back problems.” She also failed to report her prior back issues to a defense medical expert during her independent medical examination. However, evidence at trial showed that she had in fact previously complained of back problems and injuries and had had prior back examinations, and she acknowledged her deposition testimony had contained incorrect responses.
Dr. Timothy P. Gray testified that he had reviewed Anderson’s radiographic studies. Based on that review and his examination of her other records, he concluded her back issues and surgery were not caused by the accident but by a preexisting degenerative condition.
Dr. Stephen Rothman testified that in his opinion, Anderson’s back issues and surgery were caused by aging and degeneration, not trauma. He based his opinion almost entirely on Anderson’s radiographic studies.
The jury found that McCraney had been negligent, but that his negligence had not been a substantial factor in causing harm to Anderson, and the jury awarded no damages. The trial court entered judgment in favor of McCraney.
Anderson moved for new trial on the ground of inadequate damages. The trial court denied the motion, and this appeal ensued.
Additional facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. Sufficiency of the Evidence
Anderson contends a new trial on the issue of damages is required because, after finding McCraney negligent, the jury failed to award any damages, even though it was undisputed she was diagnosed with and treated for knee sprain and neck strain after the accident.
1. Standard of Review
“Under the substantial evidence standard of review, we review the entire record to determine whether there is substantial evidence supporting the jury’s factual determinations [citation], viewing the evidence and resolving all evidentiary conflicts in favor of the prevailing party and indulging all reasonable inferences to uphold the judgment [citation]. The issue is not whether there is evidence in the record to support a different finding, but whether there is some evidence that, if believed, would support the findings of the trier of fact. [Citation.] Credibility is an issue of fact for the trier of fact to resolve [citation], and the testimony of a single witness, even a party, is sufficient to provide substantial evidence to support a factual finding [citation].” (Fariba v. Dealer Services Corp. (2009) 178 Cal.App.4th 156, 170-171.)
2. Analysis
Anderson had the burden of establishing the elements of her cause of action for negligence: duty, breach, causation, and damages. (Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1188, disapproved on another ground in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854, fn. 22.) The first two elements are not controverted—McCraney clearly had a duty to drive safely, and the jury found he was negligent, i.e., that he breached his duty.
McCraney contends that the elements of causation and damages were not established. With respect to damages, he argues the jury could have determined that Anderson lacked credibility, and based on that determination, could have concluded she suffered no injuries in the accident. It was undisputed at trial, however, that Anderson was transported to the hospital immediately after the accident and received emergency room treatment, for which she incurred costs. Thus, while the jury could have reasonably determined that she was not entitled to recover additional damages for pain and suffering, it was unreasonable to completely deny her recovery for the expenses she incurred as a direct result of the accident.
McCraney next argues, with respect to causation, that the jury could have believed his testimony and found that Anderson triggered the accident and that her own negligence was the sole substantial factor in causing her harm. Nonetheless, Anderson’s own negligence, if proved, would provide a basis for comparative fault apportionment, but would not completely preclude her recovery for the costs of ambulance transportation and emergency room treatment.
We therefore conclude the matter must be remanded for a determination of the amount she is entitled to recover for such costs.
B. Admission of Expert Testimony
Anderson next contends the trial court erred in admitting the testimony of a defense expert in neuroradiology who had not been properly designated.
1. Additional Background
During discovery, both parties designated expert witnesses: Anderson designated various treating physicians, including her orthopedic surgeon, Dr. Schiffman, and her treating radiologist, Dr. Reddy; McCraney initially designated only an independent medical examiner, Dr. Gray. In response to Anderson’s designation, McCraney made a supplemental designation, naming a radiologist, Dr. Rothman, for the stated purpose of rebutting the testimony of Dr. Reddy.
Anderson thereafter withdrew her designation of Dr. Reddy, and the trial court indicated that because Dr. Rothman was designated only as a rebuttal witness, there would be nothing for him to testify about. The trial court further stated that it would be different if another doctor was going to “testify as to films, ” and that if Anderson’s orthopedic surgeon was going to rely on the reports of radiologists, Dr. Rothman could testify.
After Dr. Shiffman testified, relying in part on MRIs and other film reports, the issue of Dr. Rothman’s testimony was raised anew. Anderson’s counsel argued that because Dr. Gray had testified at his deposition about causation and had relied in part on the film evidence, it would be duplicative to allow the testimony of Dr. Rothman as well. The trial court allowed both experts to testify, and both stated their opinions that Anderson did not injure her back in the accident but had preexisting degenerative changes.
2. Standard of Review
We review the trial court’s admission of expert witness testimony under an abuse of discretion standard. (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)
3. Analysis
In Basham v. Babcock (1996) 44 Cal.App.4th 1717 (Basham), as here, the defendant in an automobile accident case claimed that the plaintiff’s injury derived from a preexisting degenerative condition. (Id. at p. 1719.) The defendant initially designated only an orthopedist as an expert witness, but he added a radiologist in a supplemental designation. (Ibid.) The plaintiff argued that the supplemental designation violated Code of Civil Procedure former section 2034 because that statute permitted a supplemental designation only if there had not already been a designation on the same subject. (Basham, supra, at p. 1720.) The plaintiff claimed that both experts would testify about the same subject—the cause of her injuries. (Ibid.) The trial court allowed the radiologist to testify, reasoning that the reading of MRIs was a different subject, as to which the first expert was not qualified to testify. (Id. at p. 1721.) At trial, the defendant did not call the orthopedist, and the radiologist testified that the injury was degenerative, preexisting, and did not result from the accident. (Ibid.) The jury found for the defendant, and on appeal, the court held that once an expert had been designated on a particular subject, another expert on the same subject could not be added, and the trial court had erred in allowing the radiologist to testify. (Id. at p. 1723.) The court further held the error was not harmless because the orthopedist’s deposition indicated he would have concurred that the accident had caused some injury to the plaintiff. (Id. at p. 1724.)
We find Basham distinguishable. In that case, if the radiologist had not testified, no expert evidence would have supported the defendant’s theory of the case. Thus, the effect of allowing the radiologist to testify was merely to “substitute[] [the radiologist] as [the defendant’s] expert to testify on subject matters for which [the orthopedist] had been previously retained.” (Basham, supra, 44 Cal.App.4th at p. 1723.)
Here, in contrast, the two defense experts provided consistent testimony that the collision did not cause Anderson’s back problems, and Anderson does not challenge the admission of Dr. Gray’s testimony. Thus, as McCraney contends, any error in admitting Dr. Rothman’s testimony was harmless because Dr. Rothman’s testimony was merely cumulative to other properly admitted evidence. “[W]here... independent and competent evidence to substantially the same effect from other witnesses is placed before the jury the erroneous admission of such cumulative evidence ordinarily is not prejudicial. [Citations.]” (Kalfus v. Fraze (1955) 136 Cal.App.2d 415, 423; see also Mullanix v. Basich (1945) 67 Cal.App.2d 675, 679-680.) The same rule applies when the challenged evidence is expert testimony. (Atkins v. Strayhorn (1990) 223 Cal.App.3d 1380, 1391.) In contrast to the situation in Basham, in which the improperly admitted testimony provided the sole support for the defendant’s theory of the case, the challenged testimony here was merely cumulative. We conclude the error was harmless.
IV. DISPOSITION
The judgment is reversed as to damages, and the matter is remanded for a determination of the amount Anderson is entitled to recover for her ambulance transportation and emergency room treatment. In all other respects the judgment is affirmed. Costs are awarded to plaintiff.
We concur: MCKINSTER J., RICHLI J.