Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. No. CV053006
Bamattre-Manoukian, Acting P.J.
I. INTRODUCTION
Appellant Robin Belkin was injured in a rear-end automobile accident involving a vehicle driven by respondent Michelle Quinet. Belkin subsequently brought a personal injury action against Quinet that culminated in a jury trial. The jury rendered a special verdict awarding Belkin total damages of $49,080, including past medical expenses of $28,080; future medical expenses of $6,000; past noneconomic loss of $10,000; and future noneconomic loss of $5,000. The trial court denied Belkin’s motion for a new trial on the issue of damages.
On appeal, Belkin challenges the award of $6,000 for future medical expenses on the grounds that the award was inadequate, arbitrary and unsupported by the evidence. For the reasons stated below, we determine that the award is supported by substantial evidence and therefore we will affirm the judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
Since the adequacy of the award of future medical expenses is the only issue on appeal, our background summary will focus on the evidence and procedural history relevant to that issue.
A. The Personal Injury Action
The personal injury complaint was not included in the record on appeal. The record reflects, however, that Belkin alleged in her personal injury action that she was injured in an automobile accident on May 12, 2004, when the vehicle she was driving was rear-ended by a vehicle negligently driven by defendant Quinet, and that she sought compensatory damages. The matter proceeded to a four-day jury trial that was held in October 2007.
B. Trial Testimony
At trial, both parties testified regarding the accident facts. The accident occurred during the morning commute hours of May 12, 2004, when Quinet was driving from her home in Campbell to her job in Los Altos on the San Tomas Expressway. Shortly before the collision occurred, Quinet was traveling with the flow of traffic, about 35 miles an hour. She noticed that Belkin’s vehicle was traveling in front of her in the same lane. She also noticed that a truck was merging onto the San Tomas Expressway. To avoid the truck, Quinet decided to move into the next lane. She looked over her left shoulder and when she looked back, she was surprised to find that Belkin’s Acura had stopped in front of her. Quinet’s vehicle then struck the rear end of the Acura with sufficient force that the airbags in Quinet’s vehicle deployed.
Testimony regarding Belkin’s accident-related injuries and medical treatment was given by Belkin; her medical expert, Mark Jordan Sontag, M.D.; and the defense medical expert, Paul Joseph Mills, M.D. Belkin realized that she had been injured as a result of the May 12, 2004 automobile accident the next morning, when the left side of her neck and shoulder were sore. She first sought medical treatment for the accident five days later, on May 17, 2004, at Kaiser. The nurse practitioner whom Belkin saw on May 17, 2004, recommended that she take Ibuprofen, use ice on the back her neck, and do gentle neck exercises.
Belkin next sought medical treatment for accident injuries approximately two months later, on July 20, 2004, when she returned to Kaiser and told her primary care physician that her neck, upper back and shoulders were stiff and sore as a result of the automobile accident. Two days before the July 20, 2004 appointment, Belkin’s neck had “completely seized up” while she was watching a play. The primary care physician recommended that Belkin continue the gentle neck exercises, minimize driving, and go to physical therapy.
Belkin began several months of physical therapy in October 2004. During one appointment, she could not perform an exercise that required her to raise her right shoulder. She had some improvement but continued to experience “soreness, achiness, all kinds of problems looking up and down . . . .” She saw a physician in the Kaiser Physical Medicine Spine Clinic on March 17, 2005, because physical therapy had not been “that helpful.” On May 17, 2005, Belkin saw another physician in Kaiser’s chronic pain program. She also continued physical therapy in June and July of 2005. At that point, over one year after the accident, Belkin’s neck was still “sore and achy” and she continued to have “shoulder cramping or pinching.”
In addition to physical therapy, the Kaiser physicians prescribed anti-inflammatory and pain medication. She also received acupuncture treatment at Kaiser from August 2005 to October 2005. At that time, her symptoms included pain in the neck, upper back, and right shoulder. The acupuncture treatment provided only short-term relief. Belkin continued to attend physical therapy appointments until March 24, 2006. She then saw a chiropractor, who stopped chiropractic treatment in June 2006 because it was not helpful.
Belkin returned to the Kaiser Spine Clinic on September 6, 2006. She also saw a Kaiser nurse practitioner who referred her for an MRI of the right shoulder. However, Belkin sought a second opinion from a Kaiser orthopedic surgeon because she was not satisfied with her diagnosis and treatment. The orthopedic surgeon recommended that Belkin see the shoulder specialist at Kaiser, which she did on November 6, 2006. The shoulder specialist provided a diagnosis of acromioclavicular joint and rotator cuff impingement and inflammation. On December 7, 2006, Belkin underwent a further assessment in the Kaiser Chronic Pain program.
During her course of treatment at Kaiser, a physician in the Chronic Pain program recommended neck injections. Belkin was unwilling to undergo neck injections at that time because she was concerned about injecting anything into her neck that could cause a recurrence of her thyroid cancer. She had previously undergone two neck surgeries to remove her thyroid and surrounding tissues.
Belkin was referred by her trial attorney to Dr. Sontag, a physician outside the Kaiser system who is board certified in physical medicine, rehabilitation, and electro-diagnostic medicine. She saw Dr. Sontag for the first time in December 2006. His diagnosis included injury to the acromioclavicular joint of the right shoulder and degenerative disc disease in the neck with facet syndrome (pain emanating from a facet joint). Dr. Sontag also determined that the surgery Belkin had undergone for thyroid cancer made her neck more susceptible to trauma from an auto accident.
Dr. Sontag recommended that Belkin obtain further CT and MRI studies of the neck and shoulder, take glucosamine chondroitin, apply an anesthetic lidoderm patch to her neck, and attend physical therapy. Dr. Sontag also determined that the Kaiser physicians “did not reach the proper diagnosis” and merely treated her pain symptoms.
When Belkin next saw Dr. Sontag in January 2007, he recommended that her treatment include cortisone injections to the cervical facet joints of her neck and to the acromioclavicular joint of her right shoulder. Belkin subsequently had the injections at Kaiser in May 2007. She indicated to Dr. Sontag three weeks later that the injections had relieved 90 percent of her pain. Dr. Sontag believed that her pain relief confirmed his clinical impression that her pain was emanating from the cervical facet joints and the acromioclavicular joint. At that point, Dr. Sontag recommended that Belkin exercise by using the treadmill and light weights to strengthen her neck and shoulder. He also mentioned that she might require repeat injections.
The next time Dr. Sontag saw Belkin was in October 2007. Her pain had returned in the same areas and she was 90 percent worse than she had been in May 2007. Dr. Sontag recommended that Belkin undergo a diagnostic medial branch block (injection of a numbing agent, Lidocaine, into the cervical facet joint) followed by radio frequency rhizotomy (using a high-energy source to destroy the nerve).
The cost of the future medical treatment recommended by Dr. Sontag included (1) for the medial branch blocks, a physician’s fee of $1200 ($400 each for three cervical levels) plus a hospital or surgery center facility fee of between $2000 and $5000; and (2) for the radio frequency rhizotomy, a physician’s fee of $1800 to $2100 ($600 or $700 each for three cervical levels) plus a facility fee of $2000 to $5000. Dr. Sontag expected that Belkin would need to undergo radio frequency rhizotomy every three years for the rest of her life.
Additionally, Dr. Sontag recommended that Belkin undergo two more cortisone injections into the right shoulder, at a cost of approximately $225 for the injection and possibly a physician visit charge of $150 and a fluoroscopy charge of $1000 (if the injection was done under an x-ray machine). Belkin would also need a return office visit after the second should injection, for physician visit cost of $120 to $150.
At the time of trial, Belkin intended to undergo the medial blocks and rhizotomies recommended by Dr. Sontag, as well as another cortisone injection to the shoulder, and to continue physical therapy. She was told that the neck and shoulder injections at Kaiser cost $6,500, for which she would incur a copayment. Between May 17, 2004, and May 17, 2007, Belkin incurred a total of $2,734 for accident-related Kaiser copayments for physician and nurse practitioner visits, physical therapy, and radiology.
Dr. Sontag’s opinion that Belkin’s right shoulder pain was caused by the auto accident was based solely on Belkin’s report. He was surprised to learn that the first indication of right shoulder pain in Belkin’s medical records was about one and one-half years after the auto accident. Although Belkin stated that she complained about her right shoulder to her medical care providers immediately after the accident, she acknowledged during cross-examination that she did not complain of right shoulder pain to the acupuncturist she saw on August 16, 2005, or to the chiropractor until her July 9, 2006, appointment. Belkin further acknowledged that she was not taking any pain medication at the time of her June 15, 2006 deposition.
The defense medical expert, Dr. Mills, had several opinions that differed from Dr. Sontag’s opinions. Dr. Mills is a board certified orthopedic surgeon. He testifies more for the defense side than the plaintiff’s side and was retained by Quinet’s insurance company to examine Belkin on August 8, 2006. When Dr. Mills examined Belkin, she had no complaint of pain when he tested her shoulder muscles. His examination of the back and shoulder muscles showed no indication of nerve injury. Also, Dr. Mills found that Belkin’s neck and shoulder range of motion was normal. X-rays taken on December 7, 2004, indicated to Dr. Mills that Belkin had mild to moderate degenerative changes in the cervical spine that were due to aging.
As to the right shoulder, Dr. Mills also noted that the radiographic and MRI studies showed that Belkin had bone spurs in her shoulder. However, he found no signs of acromioclavicular joint pathology. Belkin reported pain when her right arm was brought to 90 degrees and when her right hand was brought around her back. However, she complained of pain in the trapezius area, not the rotator cuff.
Dr. Mill’s opinion was that Belkin sustained an injury in the May 12, 2004 automobile accident, consisting of a “strain the muscles in the back of the neck.” He did not believe that the accident caused Belkin to suffer cervical facet joint irritation or an injury to the right shoulder. Dr. Mill’s medical records review indicated that no right shoulder issue was noted until 2006. Also, the medical records showed that Belkin complained of left side neck and shoulder pain when she was seen at medical appointments five days, two months, and seven months after the May 12, 2004 automobile accident, but she did not complain of right side neck or shoulder pain.
The appropriate treatment for Belkin’s accident related neck strain included, according to Dr. Mills, an initial evaluation, a second physician visit, and four to six sessions of physical therapy. Dr. Mills believed that it was not medically probable that a muscle strain would persist more than six weeks after a rear-end collision. He also disagreed with Dr. Sontag’s opinion that Belkin had sustained a cervical facet injury due to the automobile accident and her neck was more vulnerable due to her prior thyroid surgeries. In Dr. Mills’ opinion, Belkin’s cervical facet syndrome is unrelated to the automobile accident.
Regarding her activities following the May 12, 2004 accident, Belkin testified that she continued to drive one or more of her three sons back and forth to school from Soquel to San Jose every day, which was a one and one-half hour round trip. She also exercised one and one-half hour every day as recommended by her nurse practitioner and physical therapist. Additionally, Belkin also attended a weekly swing dancing class with her husband until December 2006. She was able to perform all of the activities she needed to do with her husband and children and around the house, although she did most of them with pain.
In closing argument, Belkin’s trial attorney asked the jury to award future medical expenses, including $3,440 to $3,500 for shoulder injections; $3,200 to $6,200 for medial blocks, and $38,000 to $71,000 for rhizotomies.
C. Jury Verdict
The jury returned a special verdict on October 29, 2007. The total amount of the verdict was $49,080, which included past medical expenses of $28,080; future medical expenses of $6,000; past noneconomic loss of $10,000; and future noneconomic loss of $5,000. The jury also found that both Quinet and the unidentified truck driver were negligent, and assigned 95 percent of Belkin’s harm to Quinet and five percent to the truck driver. Judgment on the jury verdict was entered on December 10, 2007, in the amount of $48,333 against Quinet.
D. Motion for New Trial
On November 7, 2007, Belkin brought a motion for new trial on the ground that the jury’s award was inadequate and arbitrary as to all damages awarded. Regarding future medical expenses, Belkin asserted that the evidence before the jury supported a minimum award of $10,400 for “two sets [of] shoulder injections, one set of medial blocks, and one set of rhizotomies . . . .” Belkin further asserted that a “more realistic number, from the unrebutted evidence, was a minimum of $44,640, which consisted only the lowest rates and the longest spans between rhizotomies stated by Dr. Sontag. (I.e., $3440 + $3200 + $38,000).”
In opposition, Quinet contended that the damages awarded were adequate and, with respect to future medical expenses, the award of $6,000 was reasonable and not arbitrary “given Dr. Sontag’s testimony that future injections would cost $3200-$6200 . . . . ”
The trial court denied the motion for new trial on December 20, 2007.
III. DISCUSSION
On appeal, Belkin challenges the award of future medical expenses in the amount of $6,000 as inadequate and unsupported by the evidence, and asks for an additur of at least $36,000 or a remand for a new trial on the issue of damages. Our analysis is guided by the applicable standard of review.
A. Standard of Review
An appellate court has limited power to review the jury’s award of damages. (Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361.) “The common law in its wisdom has left these inherently subjective decisions regarding damages with the jury as the trier of fact to apply its collective experience, common sense, and diverse backgrounds. As a further safeguard, the trial judge has considerable discretion to review excessive or inadequate damage awards in connection with a motion for new trial.” (Abbott v. Taz Express (1998) 67 Cal.App.4th 853, 857 (Abbott).)
Code of Civil Procedure section 657 governs a motion for new trial and provides in pertinent part, “The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: [¶] . . . [¶] 5. Excessive or inadequate damages. [¶] . . . [¶] A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced, from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.”
Where the plaintiff moves for a new trial on the ground of inadequate damages, the trial court “must weigh the evidence and acts as an independent trier of fact.” (County of Los Angeles v. Southern Cal. Edison Co. (2003) 112 Cal.App.4th 1108, 1121.) The trial court is in a better position than the appellate court “to evaluate the amount of damages awarded in light of the evidence presented at trial.” (Id. at p. 1121.) Consequently, “[a]lthough the trial court’s determination is not binding upon a reviewing court, it is to be accorded great weight because having been present at the trial the trial judge was necessarily more familiar with the evidence.” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 64.)
Thus, the reviewing court “must uphold an award of damages whenever possible.” (Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078.) “ ‘An appellate court is authorized to disturb a judgment on the ground of inadequacy of damages only where the amount of the award is supported by no substantial evidence in the record and the verdict is a clear abuse of the jury’s discretion.” (Sherwood v. Rossini (1968) 264 Cal.App.2d 926, 931.)
To determine whether a damages award is supported by substantial evidence, we are guided by well established rules. “[T]he reviewing court must start with the presumption that the record contains evidence sufficient to support the judgment; it is appellant’s burden to demonstrate otherwise.” (Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 368.) “Under that standard, we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment. [Citations.]” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630.) “It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment.” (Id. at pp. 630-631.) “ “In short, even if the judgment of the trial court is against the weight of the evidence, we are bound to uphold it so long as the record is free from prejudicial error and the judgment is supported by evidence which is ‘substantial,’ that is, of ‘ “ponderable legal significance,” ’ ‘ “reasonable in nature, credible, and of solid value . . . .” ’ [Citations.]” (Ibid.)
B. Analysis
Belkin contends that the jury’s award of $6,000 for future medical expenses was arbitrary because “there was no possible basis for the jury to find that only $6,000 of future treatment was necessary.” She explains that “the only evidence as to future medical costs was either $3,440 or a minimum of $1,440 in shoulder shots, a minimum $3,200 in medial blocks, and a minimum $38,000 for rhizotomies, totaling $42,640 or $44,640.” She claims that Quinet did not dispute either the costs or the amount of future treatment recommended by Dr. Sontag and therefore the jury was required to award future medical expenses in an amount that corresponds with Dr. Sontag’s testimony.
In response, Quinet argues that Belkin waived any appellate challenge to the order denying the motion for new trial by failing to assert that challenge in her opening brief. Alternatively, Quinet argues that the trial court properly denied the motion because there is nothing in the record to indicate to this court that the trial court abused its discretion.
Quinet further contends that because there was a conflict in the opinions of the expert witnesses, Dr Sontag and Dr. Mills, regarding the extent of Belkin’s accident-related injuries, “it must be presumed that the jury weighed the medical testimony of Dr. Mills and Dr. Sontag, accepted some of the testimony and rejected some of the testimony, and arrived at its reasoned conclusion.” She also argues that it must be inferred that the jury found Belkin’s claim for future medical treatment to be excessive, and rejects Belkin’s contention that the award of future medical expenses must correspond exactly with all or some portion of the cost of future medical treatment recommended by Dr. Sontag.
Additionally, Quinet asserts that the jury was entitled to consider Belkin’s testimony regarding her post-accident activities, such as her daily round trips driving her sons to and from school across the Santa Cruz Mountains, swing dancing, driving her children to their after-school activities, and maintaining her household.
At the outset, we do not believe that Belkin forfeited her appellate challenge to the order denying the motion for new trial by failing to raise the issue in her opening brief. Quinet sufficiently raised the issue by arguing on appeal that the award of future medical expenses was inadequate, an argument that the trial court necessarily rejected in denying her motion for new trial on the same issue.
We agree with Quinet, however, that the jury’s award of $6,000 for future medical expenses is supported by substantial evidence. As another appellate court has observed, we may not “question the discretionary determinations of jury and judge, so long as they fall within a reasonable range permitted by the evidence.” (Abbott, supra, 67 Cal.App.4th at p. 857.) Here, the evidence regarding future medical expenses ranged from zero, based on Dr. Mills’ opinion that no future medical treatment was necessary (an opinion we may infer because Dr. Mills testified that Belkin did not require any medical treatment for accident-related injuries beyond two physician visits and four to six weeks of physical therapy) to Dr. Sontag’s opinion that extensive future medical treatment for injuries to the neck and right shoulder costing over $80,000 was required (as argued by Belkin’s attorney during closing argument). The jury’s award of $6,000 for future medical expenses therefore fell within the reasonable range of the evidence. We also give great weight to the trial court’s determination, in denying Belkin’s motion for new trial, that the award of future medical expenses was adequate.
Moreover, we are not convinced by Belkin’s argument that the jury’s award of future medical expenses must correspond to the specific dollar amounts that Dr. Sontag testified would be charged for the future medical treatment that he recommended. A similar argument was rejected in Abbott, supra, 67 Cal.App.4th 853. The Abbott decision involved aplaintiff in a personal injury case who argued on appeal that a jury award of $17,300 for economic damages was inadequate because her vocational rehabilitation expert had testified that it would cost more than $115,000 to retrain her. (Id. at p. 855.)
The appellate court in Abbott rejected the plaintiff’s argument, reasoning that “[w]hat constitutes fair and reasonable compensation in a particular case is a question of fact, and no precise mathematical formula exists. We refuse to transform the jury’s inherently subjective task of calculating damages into a mechanical exercise of voting to accept or reject the testimony of any witness in toto.” (Abbott, supra, 67 Cal.App.4th. at p. 855.) Thus, “[e]ven where there is undisputed evidence regarding a specific component of damages, a lesser award is not necessarily inadequate as a matter of law where it may be justified on an alternative basis. [Citation.]” (Id. at p. 857.) Accordingly, the Abbott court determined that there was substantial evidence to support the award of economic damages because “the jury may have decided to award no retraining expenses, but some compensation for loss of domestic services or even relocation expenses.” (Ibid.)
In the present case, the jury’s award of future medical expenses was not necessarily inadequate because the award was less than the cost of Dr. Sontag’s recommended future medical treatment. Like the jury in Abbott, supra, 67 Cal.App.4th 853, the jury may have decided to award damages on an alternative basis supported by the evidence. For example, the evidence included Belkin’s testimony that the cortisone injections to the cervical facet joints of her neck and to the acromioclavicular joint of her right shoulder in May 2007 had relieved 90 percent of her pain for several months, until sometime before October 2007 when the pain returned. Dr. Sontag recommended two more shoulder injections but, instead of further cortisone injections to the neck, he recommended a series of three medial branch blocks followed by three rhizotomies. The jury may have decided to award future medical expenses that would cover the cost of several future cortisone injections (which, according to Dr. Sontag, cost approximately $225 to $1,375 each), since that treatment was effective for a significant period of time. Given that possibility, there is reasonable evidentiary support for the jury’s award of $6,000 in future medical expenses.
The decision relied upon by Belkin, Gersick v. Shilling (1950) 97 Cal.App.2d 641 (Gersick), does not compel a contrary result. In Gersick, the jury awarded the personal injury plaintiff damages in the amount of $1,500, which the plaintiff argued on appeal was inadequate as a matter of law in light of her medical expenses of $685.50 and her wage loss of $3,025. (Gersick, supra, 97 Cal.App.2d at p. 645-648.) The Gersick court first noted that “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. [Citation.]” (Id. at p. 645.)
In rejecting the plaintiff’s argument that the damages award was inadequate, the Gersick court further stated that “[t]he jury was not bound by the doctors’ evaluation of and the necessity for their services.” (Id. at p. 648.) Also, the court determined that “[a]s to the extent of the injuries claimed, the jury was not bound by the doctors’ testimony or by that of plaintiff. The jury not only saw the plaintiff and observed her actions, but saw the X rays taken nine days after the accident, and others about a year later. They might well have found that the injuries were not as severe or as permanent as claimed. Under these circumstances, and under the rules above stated, although the award is undoubtedly small, this court cannot say that it is inadequate as a matter of law.” (Id. at p. 649.)
We reach a similar conclusion in the present case. Although the award of future medical expenses in the amount of $6,000 is less than the cost of the future medical treatment recommended by Dr. Sontag, the jury was not bound by his testimony or that of Belkin. The jury had the opportunity to observe Belkin and to review the medical evidence in its totality. As we have discussed, the jury may have decided to award a lesser amount of future medical expenses based on the jury’s determinations regarding Belkin’s accident-related injuries and her need for future medical treatment. Because the jury’s award was within the reasonable range of the evidence, we cannot say as a matter of law that the award of future medical expenses in the amount of $6,000 was inadequate.
For these reasons, we will affirm the judgment.
IV. DISPOSITION
The judgment is affirmed. Costs on appeal are awarded to respondent.
WE CONCUR: MIHARA, J., MCADAMS, J.