Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura No. SCO44496, William Q. Liebmann, Judge
Moriarity & Associates, John L. Moriarity, for Appellants.
Kathryn Albarian and Mark R. Weiner & Associates, for Respondents.
YEGAN, J.
In this personal injury action, Shannon Fields (Shannon) and her daughter, Emily Fields (Emily), appeal from the judgment in their favor and against Matthew Plambek (Matthew) and his mother, Judith Plambek, respondents. The judgment was entered following a jury trial. Appellants contend: (1) the jury's determination of noneconomic damages is inadequate as a matter of law; (2) the trial court erroneously granted respondents' motion to exclude evidence concerning Shannon's consultation with a doctor; (3) the special verdict form was erroneous; and (4) in denying appellants' motion for a new trial based on inadequate noneconomic damages, the trial court failed to properly exercise its discretion because it did not independently weigh the evidence. We affirm.
Factual and Procedural Background
In February 2005 Shannon was driving a 2004 Kia Rio. Emily, who was six years old, was in a car seat in the back seat of the vehicle. Matthew drove his mother's car into the front driver's side of the Kia. Matthew was driving at a speed of between five and ten miles per hour. The cost of repairing the Kia was $7,657.50. Respondents admitted liability. The sole issue to be determined by the jury was the amount of damages for appellants' personal injuries.
As a result of the impact of the collision, Shannon's head hit the door frame and her right knee hit the steering column. She felt pain in her neck and lower back and between her shoulder blades. Emily had no "markings on her, but she was very upset, visibly shaken, and was complaining of soreness."
Two doctors testified on behalf of appellants: Paul Gilmartin and Robert Cohenour. Dr. Gilmartin testified as follows: He is a doctor of chiropractic. When Shannon saw him after the collision, she complained of "head pain, neck pain, neck stiffness, arm pain, numbness in hands and fingers, upper back pain, upper back stiffness, midback pain, rib pain, painful breathing, hip pain, irritability, mental dullness, loss of memory, fatigue, dizziness, pain behind the eyes, loss of balance, nausea, diarrhea; difficulty in riding in a car, bending, standing, sitting, lifting, twisting, and turning; difficulty in rising to walk; and pain during occupation."
Dr. Gilmartin examined Shannon and found that "[s]he had limited range of motion" in her neck. He also found "tenderness on palpation" between the shoulder blades and in the lumbar spine. He diagnosed her as suffering from various spinal ailments.
Dr. Gilmartin also examined Emily. Her main problem was with her neck. He diagnosed Emily as suffering from various spinal ailments.
Dr. Cohenour testified as follows: He is a neurologist. He examined Shannon on March 2, 2005, two weeks after the collision. "She was having a great deal of headaches, dizziness, blurred vision, . . . neurological-type symptoms." He prescribed a muscle relaxant and physical therapy. Dr. Cohenour next saw Shannon on July 25, 2005. Her headaches were still "very persistent and very intense at that point." He prescribed "a preventive medicine for vascular headache." He also ordered an MRI of the brain and an MR angiogram. Both tests were normal. Dr. Cohenour diagnosed Shannon as suffering from "posttraumatic vascular headaches," which "tend to be long-term problems."
Two doctors testified on behalf of respondents: Jeffrey Korchek and Stephen Foreman. Dr. Korchek testified as follows: He is an orthopedic surgeon. He reviewed appellants' medical records and examined Shannon. He diagnosed Shannon as having sustained "a mild head and right knee contusion" and "a mild cervical-thoracic spine strain." Dr. Korchek said that the spine injury was a "muscular strain," not a "ligamentous injury." He found no evidence that Shannon had suffered head trauma.
Dr. Foreman testified as follows: He is a doctor of chiropractic. He reviewed appellants' medical records. The emergency room physician who examined Shannon immediately after the collision had not found "any spinal injuries at all." Shannon later was examined by Dr. Lin, a chiropractor. Dr. Lin found "only the slightest loss of motion in the neck as opposed to normal." If Shannon had suffered an injury to the neck, it "would have had to have been very mild . . . ."
The emergency room physician who examined Emily had written in his report that he "saw no evidence of injury related to the motor vehicle accident." Emily was also examined by Dr. Lin, and "the examination findings were totally normal. The range of motion was full. There [were] no restrictions whatsoever." Emily was later examined by Dr. Gilmartin. His records indicate that Emily's range of motion for her cervical and dorsal lumbar spine was "within normal limits." Thus, Dr. Foreman opined, if Emily had suffered a spinal injury, it must have been "very mild."
The jury returned a special verdict. It found that Shannon had sustained economic damages of $10,381.43 and noneconomic damages of $1,000. It found that Emily had sustained economic damages of $437 and had not sustained any noneconomic damages. The trial court entered judgment in favor of appellants pursuant to the jury verdict. It denied appellants' motion for a new trial.
Alleged Inadequacy of Noneconomic Damages
Appellants contend that the jury's determination of noneconomic damages is inadequate as a matter of law. The jury awarded $1,000 to Shannon and did not award any noneconomic damages to Emily.
" '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.) "An appellate court, in reviewing the amount of damages, must determine every conflict in the evidence in respondent's favor and give him the benefit of every reasonable inference." (Niles v. City of San Rafael (1974) 42 Cal.App.3d 230, 241.)
Substantial evidence supports the jury's determination of noneconomic damages. Dr. Korchek opined that Shannon's injuries were mild. He had not found any evidence of head trauma. Dr. Cohenour testified that both the MRI of Shannon's brain and the MR angiogram were normal. Dr. Lin found "only the slightest loss of motion in [Shannon's] neck as opposed to normal." The emergency room physician who examined Shannon had not found "any spinal injuries at all." The emergency room physician who examined Emily had not found any "evidence of injury related to the motor vehicle accident." Dr. Foreman opined that, if appellants had suffered spinal injuries as a result of the collision, the injuries must have been mild.
We recognize that Shannon complained of numerous painful symptoms allegedly caused by injuries resulting from the collision. But the jury "was not bound to accept her testimony." (Calhoun v. Hildebrandt (1964) 230 Cal.App.2d 70, 74.) The jury could have reasonably concluded that she had fabricated or exaggerated her symptoms.
Exclusion of Evidence
Appellants contend that the trial court erroneously granted respondents' motion to exclude evidence concerning Shannon's consultation with Dr. Cohenour after the initial trial date of October 23, 2006. Respondents' motion was based on the ground "that discovery was cut-off [sic] 30 days before" that date. Respondents' counsel alleged that it was not until February 13, 2007, that he had learned that Shannon had seen Dr. Cohenour after the initial trial date.
A hearing on the motion was conducted on February 23, 2007, the third day of trial. Appellants' counsel admitted that, two weeks earlier, Shannon had seen Dr. Cohenour "for evaluation and consultation in preparation for trial." She had not received medical treatment from him. Dr. Cohenour examined her and recommended that she continue with her "exercise regime." Respondents' counsel protested that he had not been given a copy of Dr. Cohenour's records for the recent consultation.
If the trial court had erroneously excluded evidence, we could not reverse the judgment unless the error had resulted in a miscarriage of justice. "A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice . . . ." (Evid. Code, § 354.) "[A] miscarriage of justice should be declared only when the reviewing 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. [Citations.]" (O'Hearn v. Hillcrest Gym and Fitness Center, Inc. (2004) 115 Cal.App.4th 491, 500.) The burden is on the appellant to demonstrate that error resulted in a miscarriage of justice. (Boeken v. Philip Morris Inc. (2005) 127 Cal.App.4th 1640, 1678.)
We need not decide whether the trial court erroneously excluded evidence concerning the recent consultation. Appellants have failed to carry their burden of demonstrating a reasonable probability that a result more favorable to them would have been reached in the absence of the alleged error. In the trial court, appellants' counsel indicated that Dr. Cohenour's excluded testimony would be merely cumulative of observations he had made during his prior examination of Shannon on July 25, 2005: "[T]here's nothing new in this new examination that wasn't caught in his last examination back in 2005, so it's not like we are coming up with some new thing[;] . . . it's the same old thing. It's just that he saw her." Appellants' counsel also told the court that, during the recent consultation, Dr. Cohenour had made the same recommendations to Shannon that he had made in July 2005. No further offer of proof was presented.
Special Verdict Form
The special verdict form asked the jury to determine appellants' "noneconomic loss, including physical pain." Appellants contend that the form was erroneous because it gave the misleading impression that, in determining noneconomic loss, the jury was to consider only appellants' physical pain.
After initially expressing concern about the verdict form, appellants acquiesced in it. The trial court told appellants' counsel that it would instruct the jury on other factors to be considered in addition to physical pain, and that counsel could cover these other factors in closing argument to the jury. Counsel responded, "Thank you, your Honor. That handles the problem." Appellants' acquiescence constitutes a waiver of the issue. (See Sperber v. Robinson (1994) 26 Cal.App.4th 736, 742-743.)
In any event, appellants have failed to show that the special verdict form prejudiced them. The jury was instructed that, in addition to "past and future physical pain," the jury could consider "mental suffering, loss of enjoyment of life, inconvenience, grief, anxiety, humiliation, emotional distress." "Absent some contrary indication in the record, we presume the jury follows its instructions [citations] . . . ." (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803.)
Alleged Failure to Properly Exercise Discretion
One of the grounds of appellants' motion for a new trial was that the jury's award of noneconomic damages was inadequate. Appellants contend that, in denying the motion, the trial court failed to properly exercise its discretion because it did not independently weigh the evidence. "It is the duty of the trial court in considering [a motion for a new trial based on inadequate damages] to weigh the evidence, to exercise its independent judgment and to grant a new trial if it clearly appears from the evidence believed by it that the damages were inadequate . . . ." (Patterson v. Rowe (1952) 113 Cal.App.2d 119, 122; accord, County of Los Angeles v. Southern California Edison Co. (2003) 112 Cal.App.4th 1108, 1121 ["A trial court ruling on a new trial motion on the ground of excessive or inadequate damages must weigh the evidence and acts as an independent trier of fact."]; see also People v. Robarge (1953) 41 Cal.2d 628, 634-635 [judgment and order denying motion for a new trial were vacated because "the trial court failed to give defendant the benefit of its independent conclusion as to the sufficiency of credible evidence to support the verdict"].)
In denying the motion for a new trial, the court stated: "I express no opinion as to whether the verdict was fair or not. I will simply indicate that I believe it was a legally justified verdict and one which I have no basis upon which I can make a finding that the damages were inadequate as a matter of law." (Italics added.)
Based on this statement, appellants argue that the trial court erroneously believed that it was required to deny the motion for a new trial unless "the damages were inadequate as a matter of law." "[W]here the comments of the trial judge indicate that he misconceived his duty at the hearing on the motion for new trial, an appellate court will not blindly affirm the judgment below because there is some evidence to support it [citations]." (Lippold v. Hart (1969) 274 Cal.App.2d 24, 26.)
The trial court's comments do not indicate that it misconceived its duty. The trial court properly considered the jury's verdict: "In ruling on [a motion for a new trial made upon the ground of insufficiency of the evidence], the trial judge does not disregard the verdict, or decide what result it would have reached if the case had been tried without a jury, but instead 'it should consider the proper weight to be accorded to the evidence and then decide whether or not, in its opinion, there is sufficient credible evidence to support the verdict.' [Citations.]" (Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397, 413; accord, People v. Robarge, supra, 41 Cal.2d at p. 633; Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 215.) Here the trial court "impliedly found that there was sufficient credible evidence to support the verdict, and that the jury was reasonable in believing the witnesses it apparently had believed in reaching its verdict." (Id., at p. 216.)
As to Shannon, the trial court observed: "The $1000 in [noneconomic] damages seems quite low, and I remember at the time [when the jury returned its verdict] thinking it was quite low, but I also remember at the time thinking that [respondent's counsel] had made some arguments to the jury which called [Shannon's] credibility into question. I also remember that there was a good deal of evidence at the time of the trial that could cause the jury to believe that there had been significant over-treatment."
As to Emily, the trial court noted: ". . . I do recall, number one that Emily didn't testify at all. And it would appear to me that, while the jury gave her the costs of, in effect, going to the hospital and being checked out to be sure there was nothing wrong with her, they could easily have determined that there was no pain, suffering, emotional distress or discomfort at all from that experience. [¶] They could easily have determined that, number one, there was a failure of proof that Emily suffered, in fact, any emotional distress. They could have easily concluded that . . . for a child of that age, that the entire experience may have been something of an adventure. [¶] . . . I can't say that they were wrong in saying that she did not have any pain, suffering or discomfort."
Moreover, the trial court stated that it believed that the verdict was "legally justified." Accordingly, we cannot conclude "that the trial court failed to give [appellants] the benefit of its independent conclusion as to the sufficiency of credible evidence to support the verdict. [Citations.]" (People v. Robarge, supra, 41 Cal.2d at p. 634.) "The fact that [the trial court] did not make explicit reference to the independent assessment standard in passing upon damages is not determinative. On appeal, where the record is silent we presume that an official duty has been correctly performed. [Citations.]" (Fortman v. Hemco, Inc. (1989)211 Cal.App.3d 241, 258.)
Disposition
The judgment is affirmed. Respondents shall recover their costs on appeal.
We concur: GILBERT, P.J., COFFEE, J.