Opinion
C042348.
11-20-2003
GARY G. ASHBEE, Plaintiff and Respondent, v. BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, Defendant and Appellant.
In this action under the Federal Employers Liability Act (FELA), the jury awarded plaintiff Gary G. Ashbee over $1.8 million in damages for a job-related injury he sustained while working for defendant Burlington Northern Santa Fe Railway Company (Burlington Northern).
45 U.S.C. section 51 et seq.
On appeal, Burlington Northern contends: (1) the trial court committed prejudicial error in instructing the jury Ashbee was not covered by Californias workers compensation law; (2) the trial court abused its discretion in allowing two of Ashbees experts to express at trial opinions they did not express at their depositions, while precluding a witness for Burlington Northern from doing the same; and (3) the trial court erred in denying Burlington Northerns motion for a new trial based on jury misconduct. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Ashbee injured his neck and back in June 2000 while working for Burlington Northern when he tried to throw a switch that had a spike in it.
A spike is put in a switch that has been taken out of service so the switch cannot be used. A spike in a switch is supposed to be painted florescent orange so it can be seen; the spike in the switch Ashbee injured himself on was not painted.
In May 2001, Ashbee brought this action for damages against Burlington Northern under the FELA.
The case was tried to a jury in June 2002. The jury returned a special verdict finding Burlington Northern negligently caused Ashbees injury and awarded Ashbee $921,000 in economic damages and $905,000 in noneconomic damages.
Burlington Northern moved for a new trial, asserting, among other arguments, the same arguments it pursues in this appeal. The trial court denied the motion, and Burlington Northern filed this timely appeal.
As necessary, other relevant facts are included in the discussion that follows.
DISCUSSION
I
Workers Compensation Instruction
Before trial, over Burlington Northerns objection, Ashbee requested that the court "preinstruct" the jury "that he is not covered by the Workers Compensation Act of California but by the [FELA], that he receives no benefits under state law, and that his sole remedy for the work-related injuries he has suffered in this action, is under the FELA." (Fn. omitted.) Although the record does not include any pre-instructions given to the jurors, it does appear the court granted Ashbees motion, albeit by giving a more limited instruction than Ashbee requested. In any event, it is undisputed that at the end of the trial the jurors were instructed on the issue as follows: "Plaintiff has brought suit against BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY for personal injuries. In this case, the rights and duties of the parties are exclusively governed by federal laws known as the Federal Employers Liability Act, not the State of California Workers [sic] Compensation laws."
The reporters transcript does not include the reading of the jury instructions. However, the clerks transcript contains a document entitled "SANITIZED COPY OF INSTRUCTIONS GIVEN TO THE JURY," which includes the foregoing instruction, and Burlington Northern does not deny the foregoing instruction was, in fact, read to the jury.
Burlington Northern contends the trial court committed prejudicial error by giving this instruction. On the showing before us, we disagree.
In Lund v. San Joaquin Valley R.R. (2003) 31 Cal.4th 1, decided a year after the trial in this matter, our Supreme Court held that "in a FELA action brought in state court the jury, as a general rule, should not be told of the injured employees ineligibility for benefits flowing from Californias workers compensation law or any other collateral source." (Id. at p. 11.) The court identified two reasons for this general rule. First, the court concluded that "if jurors are told that the injured employee is ineligible for workers compensation benefits, they may consider it unfair that in a FELA action the injured worker can recover only if the employers negligence caused the injury. That concern might, in turn, lead the jury to award damages regardless of fault." (Ibid.) Second, the court noted that because "many injured railroad employees can receive compensation for their injuries, regardless of fault, under the Railroad Retirement Act of 1974," and because "the collateral source rule prohibits a defendant in a FELA action from telling the jury of the availability to the injured worker of this collateral source of compensation," "it would be unfair to allow a plaintiff in a FELA action to tell the jury of the unavailability of workers compensation benefits." (Ibid.) The court provided for an exception to the general rule, however, when "a case presents unusual circumstances where the probative value of this information outweighs its prejudicial effect." (Id. at p. 5.)
Ashbee argues that Lund does not govern here because the instruction the court gave did not refer to workers compensation benefits. In the alternative, Ashbee contends this case fell within the exception to the general rule identified in Lund because of "possible confusion among the jurors likely to hear this particular case." Finally, Ashbee contends that Burlington Northerns "claim of prejudice is entirely unsubstantiated." Because we agree with Ashbee on his third point, we need not address his first two.
"[T]he existence of instructional error alone is insufficient to overturn a jury verdict. A defendant must also show that the error was prejudicial (Code Civ. Proc., § 475) and resulted in a `miscarriage of justice (Cal. Const., art. VI, § 13)." (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.) "Instructional error in a civil case is prejudicial `where it seems probable that the error `prejudicially affected the verdict." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.) "`"[A] `miscarriage of justice should be declared only when the court, `after an examination of the entire cause, including the evidence, is of the `opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error."" (Pool, at p. 1069.)
"But our duty to examine the entire cause arises when and only when the appellant has fulfilled his duty to tender a proper prejudice argument. Because of the need to consider the particulars of the given case, rather than the type of error, the appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice." (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.)
Like the plaintiff in Paterno, Burlington Northern "tenders no developed prejudice argument." (Paterno v. State of California, supra, 74 Cal.App.4th at p. 106.) In its opening brief, Burlington Northern argues only that it was prejudiced by the instruction because "one of the jurors mistakenly assumed . . . that [Burlington Northern] was insured." This one sentence argument fails for several reasons.
First, it does not appear from the record as a matter of fact that any of the jurors actually made such an assumption, let alone that the assumption was a mistake. Burlington Northern infers this assumption from a statement — "`its not your money, it is the insurance companys money any way" — that one juror claimed another juror made during deliberations. As Ashbee points out, however, the juror who allegedly made that statement denied doing so, and several other jurors did not recall any such statement being made.
Second, even if one of the jurors did assume, mistakenly, that Burlington Northern was insured for any liability it had to Ashbee, we do not understand, nor does Burlington Northern explain, how the juror could have drawn that assumption from the instruction that the rights and duties of the parties were exclusively governed by the FELA rather than Californias workers compensation law.
Third, and finally, and again assuming for the sake of argument the mistaken assumption was made, Burlington Northern fails to show a reasonable probability that one jurors assumption regarding insurance, or the jurors alleged expression of that assumption to the rest of the panel, had any effect on the verdict.
"An appellate court is not required to examine undeveloped claims, nor to make arguments for parties." (Paterno v. State of California, supra, 74 Cal.App.4th at p. 106.) Burlington Northern has not carried its burden of showing how the instruction of which it complains caused a miscarriage of justice. Accordingly, we reject Burlington Northerns contention that the trial court prejudicially erred in giving the instruction.
II
Testimony of Ashbees Economics Expert
Robert Johnson is a forensic economist who testified as an expert on behalf of Ashbee regarding Ashbees impaired earning capacity as a result of his injuries. As part of his testimony, Johnson testified that the present value of Ashbees expected income as a conductor (the position he held at the time of his injury) to age 65 was $1,436,944. He also testified that the present value of Ashbees income as an engineer (a position to which Ashbee aspired) was $1,584,400 — a difference of approximately $ 150,000.
Before Johnson testified, Burlington Northern argued that Johnson should be precluded from testifying about Ashbees expected income as an engineer because Johnson did not do any such calculations or give any such opinion at his deposition. Despite Burlington Northerns objections, the trial court allowed the testimony.
Citing Jones v. Moore (2000) 80 Cal.App.4th 557, Burlington Northern contends the trial court abused its discretion in allowing Johnson to testify about what Ashbee could have expected to make as an engineer. We find no abuse of discretion.
In Jones, a legal malpractice action, the plaintiffs expert on the standard of care testified at his deposition to four ways in which the defendants conduct fell below the standard. (Jones v. Moore, supra, 80 Cal.App.4th at pp. 557, 561-563.) When asked if there were any other areas in which he believed the defendants conduct fell below the standard of care, the expert "specifically disavowed holding any other opinions than those he had expressed, and said if he formed any other opinions he would notify [the] defendant." (Id. at p. 564.)
At trial, after the expert expressed the same opinions he had expressed at his deposition, plaintiffs counsel sought to elicit an additional opinion from the expert that he had not expressed previously. (Jones v. Moore, supra, 80 Cal.App.4th at p. 564.) Defense counsel objected that the question called for an opinion outside the scope of the experts deposition testimony, and the trial court refused to allow the plaintiff to elicit the testimony. (Ibid.)
On appeal, the appellate court found no error in the trial courts ruling. The court explained its conclusion as follows: "[I]n his deposition [the expert] testified as to certain specific opinions, said those were his only opinions, and if he had others he would notify defense counsel. Under these circumstances, exclusion of testimony going beyond the opinions he expressed during his deposition was justified. . . . When an expert deponent testifies as to specific opinions and affirmatively states those are the only opinions he intends to offer at trial, it would be grossly unfair and prejudicial to permit the expert to offer additional opinions at trial." (Jones v. Moore, supra, 80 Cal.App.4th at pp. 564-565.)
The present case is easily distinguishable from Jones. Unlike the expert in Jones, Johnson did not state at his deposition that he did not intend to offer any opinion other than those offered at his deposition. Instead, Johnson testified that he had not done any calculations based on Ashbee becoming an engineer because "we didnt have the specific numbers on that." It appears from this testimony, and from the argument presented to the trial court on this issue, that Johnson did not formulate any opinion regarding Ashbees expected earnings as an engineer until the day he testified at trial because he did not have the income information upon which to perform the necessary calculations until that time. Ashbees counsel told the trial court he did not obtain the engineer income information from Burlington Northern during discovery, but the information had come into evidence at trial through the testimony of witnesses who testified before Johnson, and based on that testimony, he asked Johnson to perform the necessary calculations the day Johnson testified.
"We review the courts admission of expert testimony for clear abuse of discretion, looking to whether the courts ruling `exceeded the bounds of reason." (Piscitelli v. Friedenberg (2001) 87 Cal.App.4th 953, 972.) Here, the trial courts ruling allowed Johnson to offer an opinion based on evidence he did not have until the day he testified. That ruling was well within the bounds of reason. Accordingly, we reject Burlington Northerns claim of error predicated on Johnsons testimony.
III
Testimony of Ashbees Vocational Rehabilitation Expert
Dr. Ricky Sarkisian is a vocational rehabilitation consultant who testified as an expert on behalf of Ashbee regarding Ashbees preinjury and postinjury "potential for employment and earning." At his deposition, Dr. Sarkisian stated that he "plan[ned] to walk into a courtroom with the same opinions then as I am offering today, and as would be contained in my report." When asked whether "there [were] any additional opinions that you have that we have not discussed today," Dr. Sarkisian responded: "Beyond my report I have in my working file and which I have offered in testimony, you would have it all."
At trial, when Ashbees counsel asked Dr. Sarkisian if he had an opinion whether Ashbee was qualified to be an assistant train master, Burlington Northern objected on the ground the requested testimony was beyond the scope of the opinions Dr. Sarkisian offered at his deposition. In response, Ashbees counsel explained that the purpose of the testimony was to counter the anticipated testimony of Burlington Northerns vocational rehabilitation expert, Carla Kelley. According to Burlington Northern, Kelley was going to testify that Burlington Northern had posted jobs that Ashbee ought "to at least inquire about . . . as part of [his] vocational rehabilitation" and that becoming an assistant train master was "an appropriate goal for him." In anticipation of that testimony, Ashbees counsel wanted to show through Dr. Sarkisian that Ashbee was not qualified to be an assistant train master.
The court asked Ashbees counsel when the information regarding the assistant train master posting was provided to Dr. Sarkisian, and counsel explained that the information came from Kelleys deposition, which was taken after Dr. Sarkisians deposition. Ashbees counsel argued that Dr. Sarkisian should be allowed to review subsequent testimony of an opposing expert and comment on that testimony at trial. In response, Burlington Northern argued that because Dr. Sarkisian had "worked on these railroad cases before," he could have considered Ashbees ability to work as an assistant train master "in preparing for his testimony at [his] deposition."
The trial court ultimately overruled Burlington Northerns objection, concluding that Ashbee was "entitled to . . . rebut a subsequent experts opinion." Dr. Sarkisian went on to testify that the assistant train master position "does not fit into the parameters of [Ashbees] semi-sedentary limitations."
Relying once again on Jones v. Moore, supra, Burlington Northern contends the trial court abused its discretion in allowing Dr. Sarkisian to testify about Ashbees ability to perform the assistant train master position. Again, we find no abuse of discretion. It was well within the bounds of reason for the trial court to allow Dr. Sarkisian to express an opinion to rebut the testimony of Burlington Northerns vocational rehabilitation expert, even though he had not expressed that opinion at his deposition, when the subject of the opposing experts testimony was not known to Dr. Sarkisian at the time of his deposition.
IV
Testimony of Ashbees Treating Neurosurgeon
Burlington Northern contends the trial court abused its discretion because, under exactly the same circumstances as those involving Dr. Sarkisians testimony, the court excluded testimony to be offered on behalf of Burlington Northern by one of Ashbees treating physicians. Once again, we find no abuse of discretion.
Dr. Majid Rahimifar is a neurosurgeon who treated Ashbee from July 2000 through December 2000. Dr. Michael McCabe is an orthopedic spine surgeon who treated Ashbee from January 2001 through January 2002.
Dr. McCabe testified for Ashbee in his case-in-chief. Before Dr. Rahimifar was later called to testify on behalf of Burlington Northern, Ashbees counsel read into the record a portion of Dr. Rahimifars deposition testimony in which he admitted he had never reviewed Dr. McCabes reports and went on to state that he had no "opinions, conclusions or otherwise with regard to Mr. Ashbees care, diagnosis and treatment after [he] last saw [Ashbee]." Based on that testimony, Ashbees counsel requested "a court order prescribing [sic] Dr. Rahimifar from testifying in any of those areas, consistent with his deposition."
When asked by the court, Burlington Northern admitted it had not disclosed that Dr. Rahimifar, a nonretained expert witness, would be evaluating Dr. McCabes treatment and care of Ashbee. Burlington Northern also admitted that following Dr. Rahimifars deposition, it had asked Dr. Rahimifar to review the reports of Dr. McCabe, and it now intended to ask Dr. Rahimifar to express an opinion as to Dr. McCabes conclusions and work.
In an attempt to escape the impact of Jones v. Moore, supra, Burlington Northern argued it wanted to ask Dr. Rahimifar about Dr. McCabes "trial testimony." When asked what was different between Dr. McCabes testimony at trial and his testimony at deposition (which was taken the day before Dr. Rahimifars), Burlington Northern replied, "His observations during surgery and the purpose of the surgery."
The trial court concluded that Dr. Rahimifar would not be allowed to testify on direct examination as to any information that was available at the time his deposition was taken. The court further explained that Dr. Rahimifar could "give expert opinion as to the course and care and treatment of his patient up until the time that ended" but he could not "opine as to future treatment by other persons that hes already said in his deposition that he didnt take into consideration at all."
Referring to the exclusion of Dr. Rahimifars testimony and the admission of Dr. Sarkisians testimony, Burlington Northern contends "[i]t exceeds the bounds of reason to apply two different evidentiary rulings in the exact same scenario." We do not disagree. We conclude, however, that it was well within the bounds of reason for the trial court to determine that the situation involving Dr. Rahimifar was not the same as the situation involving Dr. Sarkisian.
As previously noted, Dr. Sarkisian testified about Ashbees ability to perform the job of assistant train master. Because the issue did not arise until the subsequent deposition testimony of Burlington Northerns vocational rehabilitation expert, the trial court reasonably determined that, even though Dr. Sarkisian had not testified on that subject at his deposition, he could testify on the subject at trial because he was entitled to rebut a subsequent experts opinion. With respect to Dr. Rahimifar, on the other hand, the trial court reasonably determined that Burlington Northern could have had Dr. Rahimifar review Dr. McCabes reports before his deposition, so that he was prepared to express an opinion on Dr. McCabes care and treatment of Ashbee at the deposition. Instead, by Burlington Northerns own admission, it did not have Dr. Rahimifar review Dr. McCabes reports until after the deposition.
Burlington Northern does not contend Dr. McCabes records were unavailable for Dr. Rahimifar to review prior to his deposition. Instead, as it did in the trial court, Burlington Northern contends Dr. Rahimifars testimony should have been permitted because he "was to testify as to the subsequent trial testimony of Dr. McCabe." As in the trial court, however, Burlington Northern makes no real effort to explain what it was about Dr. McCabes trial testimony that varied from Dr. McCabes records and deposition testimony such that Dr. Rahimifar could not have offered the desired testimony at his own deposition.
Because the trial court reasonably could have found a difference between the proffered testimony of Dr. Sarkisian and the proffered testimony of Dr. Rahimifar justifying the admission of the former and the exclusion of the latter, we find no abuse of discretion in the trial courts rulings.
V
Jury Misconduct
Burlington Northern moved for a new trial based in part on alleged jury misconduct. (Code Civ. Proc., § 657, cause (2).) In support of that claim, Burlington Northern offered the declaration of Juror Tibon, who claimed, among other things, that: (1) Juror Adkins "kept equating her home life and her children into [sic] the deliberations process, . . . especially during the non-economic damages portion of deliberations"; (2) Juror Diaz "told the jurors that she believed that Mr. Ashbee was telling the truth when he was confused as to whether or not he was on probation because she too had been on probation for an assault but was unaware that she was on probation"; (3) Juror Morales "kept telling other jurors during deliberations that $1,000,000 is not a lot of money because he has a job as a security guard . . . earning $80,000 a year" and "[h]e felt that his $80,000 a year salary, although a good salary, was not a lot of money"; and (4) Juror Diaz "commented about the pain she felt from her prior knee injuries and surgeries and expressed to the other jurors that Mr. Ashbee must have been feeling pain too as a result of his surgeries."
Burlington Northern argued that the named jurors committed misconduct by "inject[ing] matters outside the trial evidence into the jurys deliberations."
In the opposition motion, Ashbee argued that Juror Tibons allegations were either inadmissible statements concerning the mental processes of other jurors or, to the extent they were admissible, were controverted by the declarations of other jurors. Specifically, in the juror declarations offered by Ashbee: (1) Juror Morales denied that Juror Adkins had ever injected her home life and children into the deliberations process; (2) several jurors, including Juror Morales himself, claimed he never talked about how much money he made; and (3) Juror Diaz denied ever saying she had been on probation.
With respect to the claim of juror misconduct, the trial court denied Burlington Northerns new trial motion on the ground Burlington Northern had "failed to provide sufficient admissible evidence of jury misconduct."
In its opening brief, Burlington Northern contends a trial courts denial of a motion for new trial is reviewed for an abuse of discretion. Ashbee responds that this assertion is not "quite true when it comes to an order denying a new trial on the ground of jury misconduct." According to Ashbee, "the issue of jury misconduct is reviewed for substantial evidence" and where there is a conflict in the evidence as to whether any misconduct occurred, the appellate court must defer to the trial courts credibility determinations, implicit or explicit.
In reply, Burlington Northern asserts that "[t]he trial court did not make a `credibility determination, but instead made a legal ruling that the declaration filed in support of [Burlington Northerns] juror misconduct position was not `sufficient admissible evidence of jury misconduct." According to Burlington Northern, "the trial court failed to assess the credibility of the declarations" and this failure "requires, at a minimum, that this Court remand this case back to the trial court with directives to assess the credibility of the declarations."
"The respective role of the trial court in passing upon a claim of jury misconduct and of an appellate court in reviewing an order denying a motion for new trial for jury misconduct may be briefly stated: It is the trial courts function to resolve conflicts in the evidence, to assess the credibility of the declarants, and to evaluate the prejudicial effect of the alleged misconduct. [Citations.] A denial of a motion for new trial grounded on jury misconduct implies a determination by the trial judge that the misconduct did not result in prejudice. [Citation.] Consistent with the principle that a trial judge has wide discretion in ruling on a motion for new trial, an appellate court should accord great deference to a trial judges evaluation of the prejudicial effect of jury misconduct. [Citation.] However, in reviewing an order denying a motion for new trial based on jury misconduct, as distinguished from an order granting a new trial on that ground, a reviewing court has a constitutional obligation (Cal. Const., art. VI, § 13) to review the entire record, including the evidence, and to determine independently whether the act of misconduct, if it occurred, prevented the complaining party from having a fair trial. [Citations.] [¶] . . . [¶] In fulfilling our obligation to make an independent assessment of the prejudicial effect of the jury misconduct, we must first ascertain what misconduct, if any, occurred. In making that determination, [because the trial judge] made no specific reference to the jury misconduct ground[, w]e must . . . assume that where there was conflicting evidence, the trial court impliedly resolved those conflicts in favor of the prevailing party. So viewing the evidence, we are left with incidents of misconduct which were either admitted or established by uncontroverted declarations." (Andrews v. County Of Orange (1982) 130 Cal.App.3d 944, 954-957.)
Contrary to Burlington Northerns assertion, we cannot infer from the trial courts order that it made no credibility determinations between the declaration of Juror Tibon and the declarations of the other jurors. It is true the trial court expressly found Burlington Northern had "failed to provide sufficient admissible evidence of jury misconduct." This does not mean, however, as Burlington Northern would have it, that the trial court necessarily made only "an admissibility ruling." Rather, it may only mean that, shorn of those allegations of misconduct the trial court found were not credible, Juror Tibons declaration "failed to provide sufficient admissible evidence of jury misconduct."
Because the trial court denied the new trial motion without making any express factual findings on the issue of jury misconduct, we must assume the trial court resolved all conflicts in the evidence in favor of Ashbee. (See Andrews v. County Of Orange, supra, 130 Cal.App.3d at p. 957.) Thus, we take as true that: (1) Juror Adkins never injected her home life and children into the deliberations process; (2) Juror Morales never talked about how much money he made; and (3) Juror Diaz never said she had been on probation. All that leaves is Burlington Northerns assertion that "Juror Diaz discussed her own medical injuries."
In support of its claim that this constituted misconduct, Burlington Northern relies primarily on Smith v. Covell (1980) 100 Cal.App.3d 947. Smith was a personal injury action arising out of an automobile collision in which one of the plaintiffs (Allene Smith) claimed she suffered neck and lower back injuries. The evidence showed that Smith did not complain of lower back pain until six weeks after the accident. (Id. at p. 951.) After a trial on damages only, the jury returned a verdict in favor of Smith for $10,000. (Ibid.) Smith moved for a new trial because one of the jurors (Cox), who had back problems himself but claimed during voir dire he could decide the case solely on the evidence, nonetheless discussed his own back condition with the other jurors "both before and during the jurys deliberation." (Id. at p. 952.) "[I]n discussion of the question of whether Mrs. Smith should have complained of the low back pain shortly after the accident, [Cox] informed his fellow jurors when his back `went out it `went out right away and `hurt right away. He also told the other jurors when his back went out he could still go to work." (Ibid.)
The trial court refused to grant a new trial, and the appellate court found an abuse of discretion. According to the appellate court: "Such conduct is clearly impermissible. Jurors cannot, without violation of their oath, receive or communicate to fellow jurors information from sources outside the evidence in the case. . . . [¶] . . . [¶] Cox, in concealing his biases on voir dire and in communicating his `evidence observations, opinions to his fellow jurors was committing acts of juror misconduct." (Smith v. Covell, supra, 100 Cal.App.3d at pp. 752-753.)
Ashbee contends that Juror Diazs discussion of her knee pain is distinguishable from Coxs discussion of his back pain because of the context in which it occurred. Citing Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, Ashbee asserts that "`[a] juror does not commit misconduct merely by describing a personal experience in the course of deliberations." (Id. at p. 819.) According to Ashbee, a jurors discussion of personal experiences, when offered "to persuade other jurors to her view on general damages," is not misconduct but rather an "appropriate contribution[] to the jurys deliberations on pain and suffering."
There is support in the case law for Ashbees view. In Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, when discussing during deliberations the plaintiffs pain and suffering damages, "the foreperson became very emotional" and "discussed a physical deformity which she had previously never told anyone about. Moreover, she told them she knew about pain and suffering, and no amount of money could compensate her." (Id. at p. 741.) In concluding this was not improper, the appellate court wrote: "Jurors do not enter deliberations with their personal histories erased, in essence retaining only the experience of the trial itself. Jurors are expected to be fully functioning human beings, bringing diverse backgrounds and experiences to the matter before them. Indeed, the purpose of voir dire is to provide counsel the opportunity to learn about a prospective jurors background, experiences, and philosophy as it relates to the matter to be heard. In the case at bar, the foreperson was only asked a few questions on voir dire, all of them by Moores counsel. With respect to the issue of pain and suffering, she was merely asked whether she would have any difficulty awarding money damages for pain and suffering if justified by the evidence. She replied she would not. The only question asked by PMMGs counsel which even indirectly touched on this issue was a question asked to all the prospective jurors as a whole. The jurors were asked if they could put aside natural sympathy, listen to the evidence objectively, and not reach a judgment by means of passion or prejudice. All the jurors agreed they could. We believe if PMMG did not desire jurors on the panel who had any personal experience with pain and suffering which they might relate during the jurys deliberations counsel for PMMG should have questioned the prospective jurors in this regard. It is inappropriate after-the-fact to complain about the particular background and experiences which a given juror brought to the deliberation process. Our conclusion would of course be different had the foreperson on voir dire denied any personal feelings relative to this issue." (Id. at pp. 741-742.)
In English v. Lin (1994) 26 Cal.App.4th 1358, the defendant moved for new trial on the ground of jury misconduct based on the declaration of a juror (Larsen) who claimed that during a discussion of the plaintiffs loss of earnings, another juror (Foster) discussed his brother-in-laws salary as a commercial artist — a career to which the plaintiff had aspired before his injury. (Id. at pp. 1361, 1363.) In concluding "there was insufficient evidence of juror misconduct," the appellate court pointed out that the complaining jurors declaration "lack[ed] specificity regarding the actual circumstances under which the statements were made. For example, it is unclear whether Fosters statements were offered to explain why Foster found certain testimony credible or not credible, or a damage award too low or too high." (Id. at pp. 1364, 1365.) The appellate court went on to explain: "Because of the lack of a specific context for Fosters statements, the trial court reasonably could have concluded that the declaration was insufficient to show that Fosters remarks were intended by him, or interpreted by other jurors, as additional evidence to consider in this case, as opposed to an explanation as to Fosters reasoning processes — i.e., why Foster believed or disbelieved certain witnesses or believed an award of damages would be appropriate or inappropriate or too low or too high. We also conclude that Larsens declaration lacks sufficient specificity to show the nature and extent of any open discussion about the subject of the plaintiffs loss of earning capacity, and whether any of the jurors deemed Fosters statements to constitute evidence on this point. Moreover, nothing in his declaration establishes any agreement, express or implied, to consider Fosters statements as evidence. In other words, the trial court reasonably could have concluded that the declaration was insufficient to establish that the jury violated the instruction to `decide all questions of fact in this case from the evidence received in this trial and not from any other source, and that the jurors `must not make any independent investigation of the facts or the law or consider or discuss facts as to which there is no evidence. . . ." (English, at pp. 1365-1366.)
We conclude that Smith, Moore, and English, read together, provide an appropriate test for determining when a jurors discussion of personal experience crosses the line from proper deliberation to misconduct. Provided that a juror has not improperly concealed, in response to voir dire questions, relevant personal experience or an inability to decide the case on the evidence rather than that experience, a juror does not commit misconduct in discussing a personal experience in deliberations where the remarks are intended to explain, and are interpreted by the other jurors as explaining, the jurors reasoning process, rather than as additional "evidence" — that is, something offered to prove the existence or nonexistence of a fact. (Evid. Code, § 140.)
Here, Juror Tibons declaration made it clear that Juror Diaz discussed her own knee pain as part of the jurys deliberations over the amount of general damages Ashbee should be awarded for his pain and suffering. After describing Juror Moraless alleged discussion of his salary, Juror Tibon stated: "Diaz also commented about the pain she felt from her prior knee injuries and surgeries and expressed to the other jurors that Mr. Ashbee must have been feeling pain too as a result of his surgeries. She made these remarks in an effort to have the jurors award Mr. Ashbee significant damages."
There is nothing in Juror Tibons declaration to suggest Juror Diaz intended to inject her own knee pain into the deliberations as proof of any fact or that any of the other jurors interpreted her comments as proof of any fact. Rather, it appears Juror Diaz was simply sharing her personal experience with pain with the other jurors in an effort to convince them of the propriety of awarding Ashbee a larger amount of general damages than they might otherwise have been inclined to award. We find no misconduct in her doing so. Indeed, as the court explained in Moore: "[P]articularly in the context of pain and suffering deliberations, the personal background and experiences of the individual jurors will often exert a role in the deliberations. This is due to the nebulous nature of pain and suffering compensations. Indeed, as the trial court instructed the jury, `No definite standard or method of calculation is prescribed by law by which to fix reasonable compensation for pain and suffering, nor is the opinion of any witness required as to the amount of such reasonable compensation." (Moore v. Preventive Medicine Medical Group, Inc., supra, 178 Cal.App.3d at p. 742, fn. 10.) An identical instruction was given here.
In summary, we conclude Burlington Northern failed to show any misconduct by the jury. Accordingly, the trial court did not err in denying Burlington Northerns new trial motion on that ground.
DISPOSITION
The judgment is affirmed. Ashbee shall recover his costs on appeal. (Cal. Rules of Court, rule 27(a).)
We concur, NICHOLSON, Acting P.J., RAYE, J.