Opinion
H024283.
7-11-2003
ANDRE GOMPEL, Plaintiff and Appellant, v. WALSCHON FIRE PROTECTION, INC. et al., Defendants and Respondents.
Plaintiff Andre Gompel brought a personal injury action against defendants Walschon Fire Protection, Inc. and Thomas Evan Pearson. Following a jury trial, plaintiff was awarded $ 7,197.82 in damages. On appeal, plaintiff contends that the trial court erred: (1) in interrupting his opening statement; (2) in displaying bias against him; (3) in interfering with the conduct of the trial; (4) in sustaining a defense objection as to his lack of surgery; (5) in commenting on his credibility; (6) in interrupting during closing argument; and (7) in sustaining a defense objection during closing argument. For the reasons stated below, we affirm.
I. Statement of Facts
On June 8, 1999, plaintiff was stopped in a line of traffic. Defendant Thomas Pearson was driving a truck owned by his employer, defendant Walschon Fire Protection, Inc. Pearson failed to notice in time that the traffic in front of him was stopped. Pearson hit the rear of a vehicle driven by Diem Phan. Phans vehicle was then pushed into the rear of plaintiffs vehicle.
Both parties presented evidence by accident reconstruction/biomedical experts regarding the subject accident.
Plaintiff suffered injury to his neck and back. However, he did not seek medical care until six weeks after the accident. He consulted a neurosurgeon almost five months after the accident. Plaintiff continued working as a consulting engineer. When his employment was terminated in early 2000, he began receiving physical therapy.
Plaintiffs medical history included a diagnosis of a lumbar disc herniation in the early 1990s. At that time, he was advised to have back surgery. He did not have the surgery.
The jury awarded plaintiff $ 5,097.82 in economic damages and $ 2,100 in non-economic damages. The judgment was to be reduced by defendants post-arbitration costs, because plaintiff rejected a more favorable arbitration award. (Code Civ. Proc., § 1141.21 .)
II. Discussion
A. Interruption during Opening Statement
Plaintiff first contends that the trial court erred in interrupting him during opening statement and that this error was prejudicial.
"BY MR. BOROFF [plaintiffs counsel]: "He removes his foot from the gas, pushes it over to the brake, presses down on the brake, and Mr. Pearson would have you believe that he slows to 15 or 20 miles per hour as hes traversing. [P] THE COURT: Have you believe means you think thats what his testimony will be? [P] MR. BOROFF: Yes, sir. [P] THE COURT: Thank you." Even assuming the trial court erred, the effect was insignificant.
B. Judicial Bias Against Plaintiff
Plaintiff contends that the trial court displayed bias against him by emphasizing that he was not a resident of the United States. He further contends that error was prejudicial, because the trial occurred two months after the events of September 11.
After plaintiff stated his name and spelled it, the trial court made the following comments: "Good afternoon, sir. Were going to take it slow and easy. We understand lots of us have different accents and the like, and I think it would be very helpful to Ms. Larios and to our court reporter tomorrow if you try to speak slowly and distinctly. Theyll let you know if there is a problem." First, we note that the trial court did not make any comments or inferences as to whether plaintiff was a resident of the United States. Second, the trial courts comments indicate that it was attempting to put plaintiff at ease prior to giving his testimony. No error occurred.
C. Judicial Interference with the Conduct of Trial
Plaintiff next asserts that the trial court spoke more than 159 times during the 5-day trial, or every 12 minutes, thereby interrupting the progress of the trial. He contends that the trial court abused its right to question witnesses.
Evidence Code section 775 authorizes the trial court to call and interrogate witnesses. The trial court has "the power, discretion, and affirmative duty . . . [to] participate in the examination of witnesses whenever he believes that he may fairly aid in eliciting the truth, in preventing misunderstanding, in clarifying the testimony or covering omissions, in allowing a witness his right of explanation, and in eliciting facts material to a just determination of the cause." (People v. Carlucci (1979) 23 Cal.3d 249, 256, 152 Cal. Rptr. 439, 590 P.2d 15, citation and quotation marks omitted.) "Trial judges ... would better leave any interrogation of witnesses upon their part until the conclusion of the examination by counsel — direct, cross, redirect and recross, and then, if anything, in the judgment of the trial court, remains obscure, which may be material for the jury to know, and it seems desirable that an examination of the witness should be further pressed, then the trial court may, and indeed should, intervene, so that the ends of justice may be subserved." (Karwoski v. Grant (1938) 30 Cal. App. 2d 171, 178, 85 P.2d 944.)
We have thoroughly reviewed the record in the instant case and find no error. The trial court was fully engaged in the proceedings by clarifying points that it did not understand, asking witnesses to spell difficult words or to speak slowly for the court reporters benefit, correcting inappropriate comments or questions, providing direction to counsel and the witnesses, and controlling the presentation of evidence. While it would have been preferable for the trial court to pose questions of witnesses after counsel had finished their examination, the manner in which the trial court proceeded was not prejudicial to plaintiff.
D. Defense Objection to Question as to Lack of Surgery
Plaintiff contends that the trial court erred in sustaining an objection regarding why he had not had back surgery.
When counsel asked plaintiff why he did not have back surgery, he responded that the cost was quite high, approximately $ 20,000. The trial court sustained defendants objection and stated, "I think it isnt the case that wealth or property issues are explored. [P] We are not going to explore issues of whether the defendant is rich or important. That is not relevant. Please disregard it by agreement. Thank you."
Defendants assert that the evidentiary objection arose from plaintiffs motion in limine number two in which plaintiff sought to exclude evidence of plaintiffs prior workers compensation claim. Defendants claim that they were precluded from arguing at trial that plaintiff declined the prior surgery even though it would have been paid for by workers compensation insurance. They further claim that the trial court ruled, off the record, that the issue of the workers compensation claim would unduly complicate the trial and thus no reference to the claim could be made unless plaintiff should open the door to this line of inquiry.
Counsels arguments and the trial courts initial ruling on this issue are not in the record. However, following plaintiffs testimony on this issue, counsels arguments and the trial courts comments support defendants claims. Since the trial court had ruled that defendants could not raise the issue of the prior claim and argue that plaintiff did not have the surgery when it could have been paid by workers compensation insurance, the trial court properly sustained the objection.
Plaintiff also contends that defendants should not have been allowed to argue that the surgery was not necessary. During closing argument, defense counsel stated, "Is Plaintiff ever going to have surgery? You can only award him damages if you conclude that surgery is necessary from some injury suffered in the accident. And if you determine that and if you determine that he is going to have surgery at some point in time." Plaintiff did not object. Accordingly, the issue is waived. (Wills v. Newberry (J.J.) Co. (1941) 43 Cal. App. 2d 595, 606, 111 P.2d 346.)
E. Improper Comment on Plaintiffs Testimony
Plaintiff contends that the trial court commented on his credibility as a witness. We disagree.
Plaintiff testified that he had numbness on the front and back of his leg. The following exchange then occurred: "Q. Were there times of the day it would be worse or better? [P] A. It usually got worse after I was sitting. At the end of the day, it was the worse, and sometimes in the morning, it was bad, but morning was mostly the back problem. [P] Q. So morning mostly the back? [P] A. Low back. They seem to go together. They seem to be related. I cannot give you an accurate answer because it moves around. [P] THE COURT: Let me ask you a clarifying question. In the morning, you referred to the back of the leg. I thought I heard you use the words low back in response to the question. Did you have numbness in the morning time, and, if so, where was it? [P] THE WITNESS: I have numbness all the time, your Honor, but on top of that, low back pain, which was a little bit sharper. [P] THE COURT: Thank you." Plaintiffs testimony was confusing. He had previously testified that he experienced low back pain and he seemed to be testifying that he experienced numbness in his back. The trial courts question clarified that plaintiff experienced numbness in his leg and pain in his back. There was no error.
F. Interruption during Closing Argument
Plaintiff contends that the trial court erred by interrupting closing argument and emphasizing that he was born in Tunisia.
During closing argument, plaintiffs counsel stated: "If you say to yourself, gee, I think an industrial accident in 1992 was a substantial factor, you certainly have plenty of evidence for that, I believe the automobile accident of June 2000, of which we know very little other than what Mr. Gompel tells us, was a substantial factor, we can live with that. If you believe the fact he was born in Tunisia is a substantial factor, I can live with that, too, as long as you believe this accident was a substantial factor." The trial court then stated: "I couldnt live with that if you found it was because he was born in Tunisia. I understand that is rhetorical." In our view, the trial courts comment ensured that the jury did not misunderstand counsels comment and use an inappropriate basis for reaching its decision. There is no merit to plaintiffs contention.
G. Defense Objection during Closing Argument
Plaintiff also contends that the trial court erred in sustaining a defense objection made during closing argument.
During closing argument, plaintiffs counsel stated that "Dr. Strassberg never examined the November 99 MRI." The trial court sustained defense counsels objection. During plaintiffs cross-examination of Dr. Strassberg, he never testified that he did not examine the November 1999 MRI. Dr. Strassberg testified that he believed that he did review the MRI. Thus, plaintiffs counsel misstated the evidence during closing argument, and the trial court properly sustained the objection.
III. Disposition
The judgment is affirmed.
We concur: Manoukian, Acting P.J., and Wunderlich, J.