Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. VC 044555, Robert J. Higa, Judge.
Liebhaber & Masserman, Jack M. Liebhaber, Elizabeth H. Lopez and Karie Ellen Schroder for Defendant and Appellant.
Law Offices of Marlon M. Alo and Marlon M. Alo for Plaintiff and Respondent.
ZELON, J.
Shaun Evans appeals from a judgment of approximately $329,700 entered against him in litigation arising out of a car accident in which Mario Cordero, Sr. was injured. He claims that the trial court should have granted a new trial based on jury misconduct; that plaintiff’s counsel committed misconduct by referring to excluded evidence; that the court permitted the introduction of medical bills without proper foundation; and that the evidence of Cordero, Sr.’s future care needs did not reasonably support the award for future economic damages. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In October 2003, the car in which Cordero, Sr. and his family were riding suffered a flat tire as it traveled on the freeway. As they were stopped on the freeway and telephoning for assistance, their car was hit from behind by a car driven by Evans. Cordero, Sr., who was not wearing a seatbelt, was extensively injured. Cordero, Sr. spent approximately two weeks in the hospital and was in a coma for some of his stay. He sustained a pubic diastasis, a dislocated hip, and urethral injuries, among other injuries. Surgery was performed to implant a plate to rejoin the parts of his separated pelvis.
Cordero, Sr., and other members of the family sued Evans. Evans admitted that he caused the collision, and the trial focused entirely on damages. Cordero, Sr. and his wife testified as to his injuries and limitations as a result of the accident. Cordero, Sr.’s treating physician and designated expert Khalid Ahmed, M.D., testified concerning Cordero, Sr.’s treatment, future needs, and the medical necessity and reasonableness of bills for Cordero, Sr.’s medical treatment. Registered nurse and life care planner Donna Pope testified as to Cordero’s likely future economic damages, and economist Marianne Inouye testified to the present cash value of those future care costs.
We are considering this matter with another case arising out of this collision, Case No. B197973, in which the plaintiff was Cordero, Sr.’s son, Mario Cordero, Jr.
The jury concluded that Cordero, Sr. had sustained total damages of $412,165.85, of which past economic losses, including medical expenses, were $82,165.85; future economic losses were $250,000; and noneconomic damages were $80,000. The jury also found that Cordero, Sr. was also negligent and assigned 20% responsibility to him for the damages. No punitive damages were assessed in the second phase of the trial.
Evans brought a motion for new trial, which was denied. Evans appeals.
DISCUSSION
I. Alleged Jury Misconduct
Evans alleges that the trial court should have granted a new trial based on juror misconduct. According to Evans, Juror No. 12 introduced outside evidence at deliberations by discussing his wife’s experience with hip surgery. Evans offered declarations by two jurors. Some elements of these declarations are inadmissible, as they purport to show jurors’ subjective reasoning rather than to recount overt acts or statements. (Evid. Code, § 1150; People v. Danks (2004) 32 Cal.4th 269, 301-302.) However, the admissible portions of the declarations state that Juror No. 12 explained and “extensively discussed” his wife’s surgery and its high cost, that he advocated for an increase in the award given to Cordero, Sr. “based on his experience with his wife,” and that after speaking with Juror No. 12 at a break, one juror changed his mind about punitive damages.
In opposition to the motion for new trial, Cordero, Sr. offered declarations from two different jurors. In the admissible portions of the declaration, one juror said, “I do recall juror # 12. He told us about his wife’s injury, and he explained how difficult and stressful it was for him and his family to care for her during rehabilitation from her injury.” She continued, “Juror #12 was no different from the other jurors because we all expressed our opinions relating to witness testimony and the evidence in this case. He was no stronger in expressing his opinions than we (other jurors) were.” The other juror stated, “I barely recall a juror discussing his wife’s hip injury . . . .”
The trial court denied the motion for a new trial. When asked for the basis for its decision, the court did not make a finding as to whether misconduct had occurred but observed that any misconduct was not prejudicial. On appeal from denial of a motion for new trial on grounds of juror misconduct, we have a constitutional obligation to review the entire record and to determine independently whether the act of misconduct, if it occurred, prevented the complaining party from having a fair trial. (English v. Lin (1994) 26 Cal.App.4th 1358, 1364.) We affirm because the declarations submitted by Evans do not establish juror misconduct.
While as a general principle it is misconduct for jurors to inject information into deliberations in the form of a claim to expertise or specialized knowledge of a matter at issue (In re Malone (1996) 12 Cal.4th 935, 963; Smith v. Covell (1980) 100 Cal.App.3d 947, 952-953), this does not preclude jurors from drawing on their personal experiences in evaluating the evidence before them. “A juror does not commit misconduct merely by describing a personal experience in the course of deliberations.” (Iwekaogwu v. City of Los Angeles (1999) 75 Cal.App.4th 803, 819.) “[D]uring the give and take of deliberations, it is virtually impossible to divorce completely one’s background from one’s analysis of the evidence. We cannot demand that jurors, especially lay jurors not versed in the subtle distinctions that attorneys draw, never refer to their background during deliberations.” (People v. Steele (2002) 27 Cal.4th 1230, 1266.) Evans did not establish by admissible evidence that Juror No. 12 went beyond the permissible description of personal experience in the course of analyzing the evidence at trial to the impermissible introduction of outside evidence into deliberations. The trial court properly denied the motion for new trial.
II. Alleged Attorney Misconduct
Evans asserts that he should have been granted a new trial because Cordero, Sr.’s counsel committed misconduct at trial, which individually and cumulatively prejudiced him. We find that few of the instances of which Evans complains could possibly be construed as misconduct, and even if those were considered to be misconduct, that he has forfeited any objection by failing to request that the jury be admonished.
A. Initial Question Concerning Head Injuries
Evans complains that during the testimony of Khalid Ahmed, M.D., counsel made repeated references to head injuries despite the court’s ruling that evidence on this topic would not be admitted. Prior to Ahmed’s testimony, the trial court ruled that as Ahmed was not a neurologist, he could not opine on Cordero Sr.’s head injury. During Ahmed’s testimony, however, when Ahmed described Cordero, Sr.’s injuries, he volunteered, “[O]ver and above that, he had a very significant head injury.” Evans objected. The trial court ordered the head injury reference stricken and instructed counsel, “It’s stricken about any head injury.” Ahmed said, “He had other multiple injuries. [¶] Can I say that, Your Honor? He had other injuries also, other than orthopedic.” The court said, “Not pertaining to any head injuries.” Then, Cordero, Sr.’s counsel asked, “Okay. Aside from the head injuries, Doctor, what other injuries did you observe at the time of examin[]—” Evans’s counsel objected, and the court again instructed, “You’re not to testify regarding any head injuries.”
The first mention of head injuries is not attributable to Cordero, Sr. Ahmed volunteered that Cordero, Sr. had sustained a significant head injury in response to a general question. The question that began, “Aside from the head injuries,” obviously can be interpreted in one of two ways: as a good-faith attempt to revise counsel’s prior question about injuries to exclude any mention of head injuries, or as an effort to drive home to the jury that Cordero, Sr. had suffered a head injury despite the exclusion of such evidence. Obviously the latter purpose would be improper. (Smith v. Covell, supra, 100 Cal.App.3d at p. 960 [“California courts have repeatedly held attempts to suggest matters of an evidentiary nature to a jury other than by the legitimate introduction into evidence is misconduct whether by questions on cross-examination, argument or other means”].) It does not appear that the trial court considered this to be misconduct, for when Evans’s counsel asked the court to admonish Cordero, Sr.’s counsel in front of the jury, the court simply instructed the witness again not to testify as to head injuries, and when Cordero, Sr.’s counsel tried to explain himself, the court simply directed him to “[g]o ahead” with the questioning, reformulating the question for him as “What other injuries?” Even assuming, however, that this was misconduct, we will address it further below.
B. Coma Question
Cordero, Sr.’s counsel later asked Ahmed the duration of Cordero, Sr.’s coma, which Evans now alleges was misconduct. Evans’s counsel objected. The court concluded that the question sought hearsay because Ahmed did not personally observe Cordero, Sr. when he was in a coma and observed that evidence relating to the coma had already been received from Cordero, Sr.’s wife. We perceive no misconduct here. Counsel asked one question, opposing counsel objected, and the objection was sustained because the question would have led to a hearsay response. There was no indication that counsel failed to abide by this ruling or committed any misconduct in this regard.
C. Post-Traumatic Stress Disorder
Evans complains that Cordero, Sr.’s counsel also asked Ahmed about post-traumatic stress syndrome on direct examination. The record indicates that counsel did attempt to question Ahmed in this area but that the court, at sidebar, concluded that such opinion testimony was inadmissible because it had not been elicited at deposition. Evans does not assert that Cordero, Sr.’s counsel attempted to evade or disregard the court’s evidentiary ruling. Here again, there is no indication of misconduct, but merely a ruling that excluded the evidence that Cordero, Sr. was attempting to elicit.
D. Question Concerning Hospital Neurology Records
The cross examination of Ahmed had focused on chiropractic records and the fact that Ahmed had relied extensively on the records of the chiropractor in rendering an opinion that those services (for two other plaintiffs) were reasonable and necessary. On redirect examination, Cordero, Sr.’s counsel asked whether Ahmed had relied on the findings of the chiropractor, to which Ahmed answered affirmatively. Cordero, Sr.’s counsel next elicited testimony from Ahmed that it was normal procedure for him to rely on hospital records to form an opinion and that he had in fact relied on hospital records for his opinion testimony that day. Cordero, Sr.’s counsel then asked, “And with regard to the findings of—regarding a neurological nature, do you reply on the reports in St. Francis Hospital regarding if there were neurological injuries?”
Opposing counsel objected to the question, and the trial court said, “Why are you getting into all this, that we’ve been arguing all day about, trying to back door this? If you are, that objection is sustained. We’ve been talking about that all day long, counsel. That’s why the jury had those breaks all morning. [¶] If that’s what you’re doing, then objection sustained.” Cordero, Sr.’s counsel responded, “He was trying—” and the court interjected, “Okay. The objection is sustained.”
The court’s comments suggest that the court believed that the question did not comply with its earlier evidentiary ruling, but the reporter’s transcript does not clearly show that counsel could have no good-faith basis for believing that this question was consistent with the court’s rulings and the evidence and questioning it had permitted. Before Ahmed testified, the court ruled that he would not be permitted to give opinions as to whether Cordero, Sr. had suffered a head injury. Cordero, Sr.’s counsel had wanted to elicit testimony that “the doctors in this hospital made these findings.” The court said, “If he’s not going to give any expert opinion on the head injury, then we’re right back to the very basic evidence rule of hearsay. It’s hearsay.” Cordero, Sr.’s counsel argued that the evidence was admissible because an expert may rely on hearsay to form an opinion, and the court responded that “Dr. Ahmed is not forming an opinion as to the head. He can’t give an opinion as to the head injury, therefore it’s still hearsay. That’s what I’m trying to tell you from the beginning.”
After this ruling, the court concluded, “We’re finished with this. We’ve got to go on. . . . [¶] All right. Get your witness in, Dr. Ahmed in here. I’m going to allow him to testify as to the bills.” The court then asked, “Are there any bills involving neurosurgery here?” Counsel answered that the bills were for the emergency treatment at the hospital. “Emergency treatment?” the court asked. “Right,” confirmed counsel. “All of them,” the court persisted. “Yes,” answered Cordero, Sr.’s counsel. “I’m going to let those all in,” said the court.
Evans’s counsel interjected that the hospital bills did cover Cordero’s “brain issue,” and asserted, “So he can’t testify as to that portion of the bill that had nothing to do with the pelvic fracture and the surgery.” The court responded, “All right.” At this point, it appears that everyone began to speak. Evans’s counsel argued, “They’re going to have to segregate it out.” The court began, “I’m going to let you—” but nothing more was recorded. Cordero, Sr.’s counsel said, “Lay a foundation, Your Honor?” Although it is unclear to which party the court was referring in the following statement, the court then said, “I keep telling you. You guys want to keep talking when you’re already winning. When I’m going to rule in your favor, you want to keep talking. What’s the matter with you? If you’re losing, fine, I can understand why you want to argue. But why do you want to argue when you’re winning?” At this point the court reporter reported a pause in the proceedings, followed by the jurors entering the courtroom. The court had not made an explicit ruling on the record as to whether the portion of the bills for emergency treatment pertaining to a head injury had to be excluded, which of course would bear on the proper subjects for examination of the expert witness.
Over Evans’s objection, the court permitted Ahmed to testify that the main hospital bill for Cordero that had been disputed earlier—which the parties certainly understood to encompass billing for neurological issues (although we cannot verify this because the exhibit was not submitted to us)—was for reasonable and necessary services. Ahmed also testified, inter alia, that bills for a wide range of medical services to multiple plaintiffs were reasonable and necessary, including pathology, pharmacy, a pulmonary specialist, surgical trauma consultation, emergency room evaluation, radiology, physical therapy, and chiropractic treatment. In light of the trial court’s ruling that Ahmed could testify that the hospital bill was for reasonable and necessary services, and the wide range of opinion permitted on bills for various services such as physical therapy and chiropractics, it appears that counsel may have been “attempt[ing] to find other theories of relevancy or admissibility” (Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 213) for the evidence he wished to introduce. Counsel’s motivation cannot be fully evaluated because counsel was not permitted to make a record of why he believed the question to be appropriate. Even assuming that counsel committed misconduct, we will address this incident further below.
E. Removal of Documents From Exhibits
Finally, Evans asserts that it was misconduct for Cordero, Sr.’s counsel to fail to remove medical bills pertaining to Cordero, Jr. from the trial exhibits once the court granted nonsuit as to Cordero, Jr. To support the assertion that this was misconduct, Evans cites to his own counsel’s assertion in argument after the verdict but before the punitive damages phase that “Your Honor specifically told us while we’re going over jury instructions, to take out medical bills. They didn’t even do that.” Evans has not demonstrated that Cordero, Sr.’s counsel violated a court order to remove Cordero, Jr.’s medical bills from exhibits. His only citation for this assertion is to his own argument before the trial court, not to any instruction by the court to Cordero, Sr.’s counsel to remove anything from the trial exhibits. Moreover, Evans has not established that the presence of these medical bills pertaining to Cordero, Jr. impacted the determination of damages as to Cordero, Sr. or prejudiced Evans in any manner.
F. Review
Examining all of the instances of which Evans complains, it appears that Evans has established inappropriate conduct in at most two questions: the question that mentioned head injuries, and the question that related to neurology records. Counsel for Evans, although he objected to each question, did not request with respect to either question that the jury be admonished. (He did ask with respect to the head injury question that counsel should be admonished before the jury, but he never requested any instruction be given to the jury.) A claim of misconduct cannot be considered on appeal unless the party timely objected and requested that the jury be admonished, unless the misconduct is so persistent that an admonition would be inadequate to cure the resulting prejudice. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 794-795.) Here, Evans has not made any argument or showing that an admonition would have been inadequate to cure any prejudice resulting from the two claimed instances of misconduct, and we believe that if any prejudice could in fact have resulted from these two allegedly improper inquiries, a curative admonition would have been effective and adequate. By failing to request that the jury be admonished, Evans has forfeited any objection to this alleged misconduct.
III. Admission of Cordero, Sr.’s Medical Bills
Evans claims that with the exception of Ahmed’s bill, Cordero, Sr.’s medical bills were inadmissible hearsay because there was no foundation for their admissibility. Evans describes the bills as those from “St. Francis [H]ospital, Dr. Vijay Kambar, ABC Pharmacy, Inc., and Santa Fe Springs Fire Department (Exhs. 9, 16-17, 19-21.)” We have not been able to locate these exhibits in the voluminous record on appeal, however, and Evans does not in his briefing identify any location in the record where the documents can be found, instead citing only to the location in the reporter’s transcript where the exhibits were admitted in evidence.
California Rules of Court, rules 8.124 and 8.224 set forth procedures for presenting trial exhibits to the appellate court through an appendix or through by transmittal.
The party seeking to challenge an order on appeal has the burden to provide an adequate record to assess error. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-1296.) Evans has not provided a sufficient record to enable us to analyze his contention: Without reviewing the documents in question we are unable to evaluate whether and under what theory they may have been admissible. (Pringle v. La Chapelle (1999) 73 Cal.App.4th 1000, 1003 [court unable to review evidentiary rulings or rulings requiring a factual analysis where an insufficient record is provided on appeal]; see also Duffy v. Campbell (1967) 250 Cal.App.2d 662, 665 [when argument on appeal is that court erred in admitting certain evidence, if documents relating to that argument are not included in the record on appeal “there is no proper record on which to base appellants’ contention”].) When a party fails to furnish an adequate record of the challenged proceedings, his claim on appeal must be resolved against him. (Maria P. v. Riles, at pp. 1295-1296.)
IV. Sufficiency of the Evidence to Support the Future Economic Damages Award
Evans next contends that the evidence concerning Cordero, Sr.’s needs for future care was insufficient to support the jury award of $250,000. “In examining this contention, we are mindful ‘[t]he amount of damages is a fact question, first committed to the discretion of the jury and next to the discretion of the trial court on a motion for new trial. . . . [A]ll presumptions are in favor of the decision of the trial court [citation]. The power of the appellate court differs materially from that of the trial court in passing on this question. An appellate court can interfere on the ground the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.’ [Citations.]” (Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 410.)
Here, there was substantial evidence that Cordero, Sr. would have future economic damages resulting from the collision. Not only did Ahmed testify to two procedures he predicted with reasonable certainty to be necessary in the future, but the jury also heard testimony from registered nurse and medical case manager Pope, who formulated a life care plan for Cordero, Sr. based on his diagnosis. Pope testified extensively as to the kind of care she believed would be reasonable and necessary in light of Cordero, Sr.’s diagnosis and injuries. She calculated unit costs, costs for anticipated treatment and potential complications, and annual costs of his care. An economist subsequently testified that the present value of the future medical care costs estimated by Pope was $499,246. The jury’s lesser verdict of $250,000 was supported by this evidence.
Evans complains that the life care plan, which contemplated additional treatments and procedures, contained allowances for procedures not reasonably likely to be required. This argument rests on the fact that Ahmed testified that he was reasonably certain only of two specific procedures that Cordero, Sr. would need; Evans reasons from this that anything else Pope opined to be necessary was not in fact necessary. The jury, however, was entitled to accept Pope’s expert opinion of what care, products, and services would be reasonably necessary based on Cordero’s diagnosis and injuries; it was not limited to matters set forth in Ahmed’s opinion.
Evans’s remaining arguments are a lightly finessed invitation to reduce Cordero, Sr.’s damages based on who he is. First, according to Evans, “common sense” indicates that Cordero, Sr. will not obtain the care described in the care plan because: he has been incarcerated since 2004; he has spent more than 40 percent of his life in correctional facilities; he is not in a position to obtain the recommended care because he has been in prison; and he is not likely to seek future care even if it is available. (This final claimed fact we are supposed to infer based on the fact that Cordero had not seen a doctor until advised to do so by his counsel, that he had resisted attending physical therapy as advised by his wife and his lawyer, and that he had forcibly removed his urinary catheter and left a hospital against medical advice.) Second, Evans asserts that although the use of a statistically average lifespan for calculating future economic damages is “academically sound,” it cannot support the award here because of Cordero, Sr.’s “criminal history, his gang membership, or that he is an habitual drug user.”
We are not even remotely inclined to substitute our judgment in place of the jury’s based on these assertions, many of which are offered with wholly inadequate citations to admissible evidence in the record. We do not sit in judgment of a jury’s common sense, but instead evaluate whether substantial evidence supports the jury’s award. Moreover, with respect to the life expectancy issue, the jury received evidence that the tables of life expectancy used by the experts include all males, regardless of whether they are gang members; overall they reflect average life expectancy, incorporating any shortened life span applicable to the subset of the population to which Evans claims Cordero, Sr. belongs. Because the future economic damages award was supported by substantial evidence, we decline Evans’s invitation to substitute our judgment for that of the jury by vacating or altering the jury’s award.
DISPOSITION
The judgment is affirmed. Respondent shall recover his costs on appeal.
We concur: PERLUSS, P. J., WOODS, J.