Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County No. KC049618, Peter J. Meeka, Judge.
Stoll, Nussbaum & Polakov, Robert J. Stoll, Jr., and Torsten M. Bassell for Appellant.
Pettit Kohn Ingrassia & Lutz, Damian M. Dolin and Cara K. Patton for Respondent.
RUBIN, Acting P. J.
INTRODUCTION
Anthony Balser sued Wal-Mart Stores, Inc., after he slipped and fell while shopping in one of its stores. A jury awarded Balser past and future medical expenses. It also awarded him $5,000 in damages for past pain and suffering, but zero for future pain and suffering. Balser appeals, contending the damages awarded for pain and suffering are inadequate as a matter of law. He also argues the trial judge abused his discretion by precluding testimony from his expert regarding a specific future medical procedure, and also by limiting his closing argument to 30 minutes, an error he claims was exacerbated by the court’s remarks in front of the jury regarding the allotted time. We conclude these contentions lack merit and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Balser was shopping in a crowded Wal-Mart about a week before Christmas in 2004. A Wal-Mart employee, Brian Webb, watched Balser for about 15 minutes because he suspected Balser might be a shoplifter. Webb noticed there were crayons and a coloring book on the floor of the aisle where Balser was walking. Balser was glancing over his shoulder, looking up and down the aisle and on the floor, and kicking the coloring book. He wandered around the isle, shuffling the book on the floor, for roughly 20 minutes. Balser slipped on the book or crayons shortly after Webb stopped watching him. He fell backward onto his right arm, hip, and elbow.
Two years later, Balser sued Wal-Mart for his injuries. At trial, Wal-Mart’s counsel focused the defense on whether Balser staged the accident and failed to seek meaningful medical treatment for nearly a year afterwards. Balser’s counsel directed his case-in-chief on Baler’s injuries, and past and future medical care.
The evidence showed Balser was in the emergency room for about two hours shortly after his fall and was diagnosed with a biceps tear. He was advised to go to the county hospital, but did not heed this advice. Five weeks later, Balser went to see a chiropractor for back pain. Two months after the fall, in February 2005, Balser sought treatment from an orthopedist for his shoulder and arm injuries. He saw the orthopedist twice and then discontinued treatment. He waited over one year, until April 2006, to see another physician, who performed arthroscopic surgery on Balser’s shoulder in July 2006.
About one year after the surgery, Balser saw Dr. Philip Sobol, an orthopedist, who ran a series of tests but did not operate. Dr. Sobol testified that as a result of his fall, Balser tore his rotator cuff and injured his biceps tendon. Also, Balser sustained a brachial plexus injury as a result of complications from the July 2006 surgery. The brachial plexus is a network of spinal nerves located in the neck and shoulder area that assists in the arm’s function. Dr. Sobol testified the brachial plexus injury could not be remedied.
With regard to Balser’s future medical treatment, Dr. Sobol discussed three recommended procedures. The first was epidural injections into the spinal canal in order to apply cortisone to the inflamed nerves in Balser’s neck. Dr. Sobol testified Balser had a small spinal disk protrusion in his neck that was the combined result of a preexisting condition and injury. The injections would cost between $3,000 and $5,000 per year, with a total projected cost of $84,000 to $140,000 over the course of Balser’s lifetime. The second option was a surgery known as the “jacket procedure.” This is where tissue is grafted to a patient’s rotator cuff in order to increase the shoulder’s functioning and reduce pain. The procedure is extensive and has a failure rate of 30 to 50 percent. This procedure would cost between $50,000 and $80,000. The third option was also surgical, known as the “reverse [shoulder] procedure,” and replaces the shoulder with one that is metal and plastic. Dr. Sobol described this procedure as “very extensive, fraught with failure rates,” and would only be pursued if the jacket procedure failed. It would cost between $100,000 and $125,000.
Dr. Sobol also recommended the surgical implantation of a “spinal cord stimulator” to alleviate some of Balser’s pain in his arm. But in response to defense counsel’s objection, the trial court ultimately instructed the jury to disregard this testimony in its entirety because Dr. Sobol had failed to mention the spinal cord stimulator during his deposition.
Both parties rested their case on a Friday and the jury was dismissed for the weekend. The trial judge then discussed with counsel that each side would be limited to 30 minutes to present their closing arguments. On Monday, the judge again reminded counsel of the 30-minute time limit. When Balser’s counsel failed to finish his argument within the time limit, the trial judge urged him to finish up quickly. Counsel finished within 34 minutes, and then spoke for about another 10 minutes in rebuttal.
In a special verdict, the jury found Wal-Mart and Balser both were negligent, with each bearing 50 percent responsibility for Balser’s injuries. The jury awarded Balser $27,300 in lost past earnings, $7,800 in future lost earnings, and the full amount of his past medical expenses -- $64,000. But of the $345,000 Balser sought in future medical expenses, the jury granted only $50,000. As for noneconomic damages, the jury awarded him $5,000 for past for pain and suffering, but zero for future pain and suffering. Thus, accounting for Balser’s own negligence, his net damages award was $77,050.
Balser moved for a new trial arguing the damages for pain and suffering were inadequate and that the court improperly limited his counsel’s initial argument to 34 minutes. The motion was denied. This timely appeal from the judgment followed.
DISCUSSION
1. The Jury’s Damage Award Is Not Inadequate.
Balser’s first contention is that the jury’s award for pain and suffering is inconsistent with their award of economic damages, and thus was grossly inadequate as a matter of law. We disagree.
A reviewing court must uphold an award of damages whenever possible and all presumptions are in favor of the judgment. (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 61.) “The question as to the amount of damages is a question of fact. In the first instance, it is for the jury to fix the amount of damages, and secondly, for the trial judge, on a motion for a new trial, to pass on the question of adequacy. Whether the contention is that the damages fixed by the jury are too high or too low, the determination of that question rests largely in the discretion of the trial judge. The appellate court has not seen or heard the witnesses, and has no power to pass upon their credibility. Normally, the appellate court has no power to interfere except when the facts before it suggest passion, prejudice or corruption upon the part of the jury, or where the uncontradicted evidence demonstrates that the award is insufficient as a matter of law. In determining whether there has been an abuse of discretion, the facts on the issue of damage most favorable to the respondent must be considered.” (Gersick v. Shilling (1950) 97 Cal.App.2d 641, 645.)
Damages awarded by the jury in a verdict for the plaintiff need not fulfill specific numerical quotas. (Miller v. San Diego Gas & Elec. Co. (1963) 212 Cal.App.2d 555, 561.) Furthermore, cases finding damages inadequate as a matter of law for failing to compensate for pain and suffering all involved egregious injuries with lengthy durations. (See, e.g., Dodson v. J. Pacific, Inc. (2007) 154 Cal.App.4th 931, 937-938 (Dodson) [plaintiff underwent serious surgical procedure that removed a herniated disk and replaced it with a metal plate]; Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 891 [infant, whose life was endangered by salmonella infection, was subjected to numerous hospital visits, required intravenous feeding devices, and suffered recurring attacks of severe diarrhea, projectile vomiting, dehydration, shock, and cramps throughout the first year of her life]; Bencich v. Market St. Ry. Co. (1937) 20 Cal.App.2d 518, 521 [plaintiff remained in the hospital for six months following his initial injury and later endured partial amputation of his foot due to gangrene]; Gallentine v. Richardson (1967) 248 Cal.App.2d 152, 153 [plaintiff was shot while hunting, spent time in the hospital, took several months to heal, and never recovered to the quality of health prior to shooting].)
In contrast to these cases, the trial in this case did not provide conclusive or compelling evidence regarding the nature and extent of Balser’s past or future pain and suffering. A comparison of the dramatic facts and egregious injuries in the above cases with the facts of the present matter convinces us it is not appropriate to disturb the jury’s judgment. Not only was Balser’s injury arguably not as compelling as in the above cases, the jury did in fact award Balser $5,000 for past pain and suffering. Unlike Haskins v. Holmes (1967) 252 Cal.App.2d 580, where the appellate court concluded an award of $88.63 for past pain and suffering from a serious head injury was de minimus and inadequate, we do not believe the jury’s award of $5,000 in this case is grossly inadequate as a matter of law or “shock[s] the conscience.” (See Buniger v. Buniger (1967) 249 Cal.App.2d 50, 54.)
We likewise conclude Balser has failed to demonstrate the jury’s award of zero dollars for future pain and suffering was inadequate as a matter of law. To support his assertion, Balser relies heavily on Dodson, supra, 154 Cal.App.4th 931. In that case, we held a special verdict awarding zero dollars for past pain and suffering was inadequate as a matter of law when the plaintiff underwent a serious surgical procedure. (Id. at p. 937.) Dodson did not address the situation presented here -- where only some of the future medical expenses requested were awarded, but damages for future pain and suffering were not.
Even assuming Dodson should be extended to apply to future noneconomic damages, our holding was based on the fact that the plaintiff had already undergone a “serious surgical procedure,” for which some pain and suffering was obvious. (Dodson, supra, 154 Cal.App.4th at p. 938.) Here, it is unknown what future procedures Balser will undergo and why the jury awarded him $50,000 in future medical expenses. It is very likely that this award was not intended to cover surgical procedures, let alone serious ones. Dr. Sobol testified that Balser could undergo therapy and epidural injections (which were not classified by Dr. Sobol as a type of surgery), costing $3,000 to $5,000 per year. In contrast, the future surgeries recommended by Dr. Sobol cost up to $80,000 or more for the “jacket procedure,” and if that fails, then reverse shoulder replacement for $100,000 to $125,000.
Based upon the price of the recommended surgeries, it is unlikely the jury awarded damages for future medical expenses with the expectation the money would be spent on a serious surgical procedure. It is entirely possible, and likely probable, that the jury awarded $50,000 to cover nonsurgical future treatment, such as the epidural injections. Thus, the jury reasonably could have believed that any pain and suffering would be minimal or nonexistent and did not justify an award of damages.
It was soundly within the jury’s discretion to determine the amount of Balser’s future pain and suffering, and there is no evidence suggesting the jury acted with passion or prejudice. The fact the jury found both Balser and Wal-Mart negligent supports our conclusion. Based upon the facts of this case, we do not believe the jury’s determination should be disturbed. (See Agarwal v. Johnson (1979) 25 Cal.3d 932, 953 [members of the jury are in the best position to assess the degree of the harm and fix a monetary amount as just compensation].)
2. Dr. Sobol’s Undisclosed Opinion Was Properly Excluded.
Balser further claims the trial court improperly excluded Dr. Sobol’s testimony regarding the future implantation of a spinal cord stimulator. We reject this claim.
A trial court may exclude an expert opinion at trial if that expert was given the opportunity to present such an opinion during a pretrial deposition and failed to do so. (Jones v. Moore (2000) 80 Cal.App.4th 557, 564-565; see also DePalma v. Rodriguez (2007) 151 Cal.App.4th 159, 165-166 [expert opinion may be admitted where it is merely an expanded description and interpretation of the conclusion the expert already gave in his deposition]; Peat, Marwick, Mitchell & Co. v. Superior Court (1988) 200 Cal.App.3d 272, 287-288 [courts possess inherent power to “curb abuses and promote fair process,” which extends to the exclusion of evidence at trial].) Questions concerning the admissibility of evidence are reviewed for abuse of discretion. (See Tudor Ranches, Inc. v. State Comp. Ins. Fund (1998) 65 Cal.App.4th 1422, 1431-1432.)
The evidence before the trial court is clear that Dr. Sobol was asked at least four different times during his deposition for his opinion as to whether Balser needed any further treatment or surgery that had not already been discussed. Although given the opportunity, Dr. Sobol declined to provide any further opinions. We agree with the trial court that Dr. Sobol’s trial testimony regarding the spinal cord stimulator “just seems like something he thought of later on[] [a]nd then brought up” during trial. We thus conclude the trial court was well within its discretion in excluding the new testimony.
Balser argues, nonetheless, that this case is controlled by Williams v. Volkswagenwerk Aktiengesellschaft (1986) 180 Cal.App.3d 1244. But in that case the court held an expert opinion given at trial will not be excluded simply because it contradicts an opinion given in the expert’s deposition. (Id. at p. 1258.) We are not concerned here with prior contradictory testimony, but rather with Dr. Sobol’s entirely new and surprise opinion regarding the need for a spinal cord stimulator, an opinion he entirely failed to express during his deposition even though given ample opportunity to do so.
3. The Trial Court Did Not Err in Managing the Trial.
The determination of the length of time for counsel’s argument to the jury is purely a matter for the discretion of the trial court, and in the absence of a showing of an abuse of discretion, the trial court’s designation of time limits for oral argument will not be disturbed on appeal. (Bates v. Newman (1953) 121 Cal.App.2d 800, 809-810, 812; see also Code Civ. Proc., § 128, subd. (a)(3) [Every court has the power “to provide for the orderly conduct of proceedings before it”].)
Citing People v. Green (1893) 99 Cal. 564, Balser contends the trial court erred when it imposed a 30-minute time limit for closing arguments because it prejudiced his ability to present his case to the jury. We cannot agree. In that case, the court held that a one-hour limit on closing arguments was an abuse of discretion where a defendant faced life imprisonment in a complex and lengthy criminal case with 24 witnesses. (Id. at p. 567.) In contrast, this case was not similarly complex--it was tried in three days with six witnesses. Also, the trial court had informed Balser’s counsel almost three days in advance that closing arguments for both parties would be limited to 30 minutes. Under these circumstances, although imposing strict time limits is fraught with concerns, we conclude the trial court did not abuse its discretion. The court’s time limit was a reasonable use of its discretion in regulating the proceedings.
At oral argument, Balser’s counsel surmised that the reason the jury may have not awarded greater damages for pain and suffering was that the trial court’s 30-minute-argument ruling unfairly prevented him from developing his points on general damages. The facts are that after Wal-Mart’s counsel argued to the jury, the trial court permitted Balser’s counsel to make closing argument. This was so even though Balser’s counsel had already exceeded the court’s 30-minute rule. Even with this additional time, Balser’s counsel devoted the great majority of his closing argument to liability and medical expenses. His general damages argument was limited to 10 lines of the reporter’s transcript. We see nothing in the record that the trial court’s limitation on the length of argument unfairly prevented Balser’s counsel from making his general damages points to the jury.
We also reject Balser’s claim that the trial court was discourteous and prevented him from presenting his case by interrupting his counsel while making the closing argument. After counsel had exceeded his time limit, the trial judge reminded counsel, “Mr. Stoll, you’re at thirty-two minutes right now” and “Let’s wrap it up in about two minutes.” In response to counsel’s statement that he had only finished two parts of his final argument, the court also said, “Doesn’t matter. You’re still running out of time.” The only thing such remarks demonstrated to the jury was that Balser’s counsel was near the end of his allotted time for argument. They constitute no more than the court’s desire to avoid unnecessary delay. The court was not discourteous in making these comments, and Balser has failed to demonstrate they were improper or resulted in any prejudice. (See Bates v. Newman, supra, 121 Cal.App.2d at pp. 810-811 [court’s comments, “I am only suggesting that we speed up the trial as much as possible,” “Let’s not prove that four times,” and “This trial in my opinion has been unduly prolonged,” among others, held to not be prejudicial].)
At oral argument, Balser’s counsel stated that the trial court interrupted him three times to remind him about the time limitation. Our review of the reporter’s transcript reveals only a single reference to time by the trial court during counsel’s argument. We have quoted the colloquy previously in the text. Tellingly, at the close of argument, outside the presence of the jury, Balser’s counsel did complain about the time limitations but made no mention of being interrupted three times.
DISPOSITION
The judgment is affirmed. Wal-Mart is to recover its costs.
We concur: FLIER, J., BIGELOW, J.