Opinion
E061939
12-22-2016
RUTH GOUGEON et al., Plaintiffs and Appellants, v. GUY OLIVER PARKS, Defendant and Appellant.
Yuhl Carr, James P. Carr, Tyler J. Barnett; Esner, Chang & Boyer, Stuart B. Esner and Andrew N. Chang for Plaintiffs and Appellants. Horvitz & Levy, Mitchell C. Tilner, Daniel J. Gonzalez; Tseng & Associates, Jennifer T. Tseng and Keith W. Moreton for Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIC1101877) OPINION APPEAL from the Superior Court of Riverside County. Daniel A. Ottolia, Judge. Affirmed. Yuhl Carr, James P. Carr, Tyler J. Barnett; Esner, Chang & Boyer, Stuart B. Esner and Andrew N. Chang for Plaintiffs and Appellants. Horvitz & Levy, Mitchell C. Tilner, Daniel J. Gonzalez; Tseng & Associates, Jennifer T. Tseng and Keith W. Moreton for Defendant and Appellant.
I
INTRODUCTION
While riding a motorcycle, Rene Paul Gougeon was killed in a collision with another driver, defendant Guy Oliver Parks. A jury found Park's negligence did not cause Gougeon's death. Plaintiffs appeal from an order denying their motion for judgment notwithstanding the verdict (JNOV). Defendant has filed a cross-appeal, challenging the trial court's grant of plaintiffs' alternative motion for new trial.
At issue is whether Gougeon died from a heart attack, which was caused by the traffic accident, or whether he would have died from the heart attack even if he had not been in the accident. Plaintiffs' expert, Dr. Daniel Wohlgelernter, testified that the accident caused a blood clot that triggered the heart attack. Defendant's expert, Dr. Robert Chesne, contends Gougeon's heart attack started before the accident and Gougeon would have died from his heart attack regardless of the accident. At trial, Dr. Chesne referred to a CT scan showing that Gougeon's sternum was broken after the accident during CPR administered at the hospital. Additionally, the autopsy report showed Gougeon had serious preexisting cardiac problems.
We conclude the trial court correctly denied plaintiffs' motion for JNOV because substantial evidence supported the jury's finding that plaintiffs failed to prove causation. However, we also affirm the trial court's order granting a new trial and reject defendant's appeal.
II
FACTUAL AND PROCEDURAL BACKGROUND
Appellants have not complied with their obligation to summarize all the evidence supporting the jury's finding. Therefore, we rely primarily on defendant's recitation of the factual record.
Under the substantial evidence rule, appellants must set out all the evidence that supports the verdict. Appellants are required to set forth in their brief all the material evidence and not merely their own evidence. Unless this is done the error is deemed to be waived. (Myers v. Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 749.) In the interest of justice, we will decide the appeal. --------
A. The Accident
On May 15, 2010, when Gougeon was traveling by motorcycle eastbound on Ontario Avenue, Parks turned left from a shopping mall parking lot. The collision was unavoidable. The accident occurred at 10:56 a.m. Gougeon arrived at Riverside Community Hospital 12 miles away within 36 minutes.
While en route to the hospital, a paramedic administered an EKG and diagnosed an acute "continuing" heart attack. Gougeon died several hours later. Gougeon was 60 years old. The medical experts, including Dr. Wohlgelernter, agreed that the heart attack was the cause of death. The issue, however, is what caused the heart attack.
B. Gougeon's Pre-Accident Medical Condition
An autopsy revealed Gougeon had serious heart problems that had already reduced his future life expectancy. Gougeon had a long history of hypertension that had damaged his kidneys and could cause narrowing of arteries. In addition, Gougeon had atherosclerotic cardiovascular disease, blocking more than 50 percent of two of the three major coronary arteries.
By the time Gougeon arrived at the hospital, the third left anterior descending (LAD) artery—colloquially called the "widowmaker"—was 100 percent blocked. The severe blockages of Gougeon's coronary arteries matched the extensive atherosclerosis in his aorta, which had become brittle and almost calcified with plaque formation, making Gougeon prone to aneurysms or dissection. The hardened aortic tissue was already perforated.
Gougeon also had an enlarged heart, almost twice normal size, and the left ventricle wall was 50 percent thicker than normal. Gougeon was predisposed to arrhythmias or irregular heartbeats.
C. The Expert Opinions
1. Dr. Wohlgelernter
Plaintiffs' expert, Dr. Wohlgelernter, believed the collision caused direct physical injury to Gougeon's heart. Specifically, Dr. Wohlgelernter said the "most probable scenario" was that the impact caused severe, major, enormous chest trauma that completely cracked through or transected Gougeon's sternum, damaging the heart muscle. According to Dr. Wohlgelernter, this caused bleeding into the heart tissue and blood clots, which lodged in Gougeon's LAD coronary artery, and triggered an MI--myocardial infarction. Dr. Wohlgelernter said that "everything is consistent with the blood clot having occurred after the accident." Dr. Wohlgelernter also said emotional, psychological, or physiological stress of the accident could have triggered the heart attack. He denied that Gougeon was particularly susceptible to an accident-induced heart attack.
Dr. Wohlgelernter believed Gougeon received the "very best" care at Riverside Community Hospital, which was the trauma and cardiac center nearest to the scene of the accident. Nevertheless, after receiving a "balloon" or angioplasty procedure that opened the blocked artery and restored normal pumping volume to his heart muscle, Gougeon died in the intensive care unit.
2. Dr. Chesne
Defense expert Dr. Chesne testified that Gougeon could have suffered a heart attack at any time based on preexisting conditions,. He testified that Dr. Wohlgelernter exaggerated the physical injury that Gougeon suffered in the accident; nothing about the accident should have precipitated Gougeon's heart attack. Instead, Dr. Chesne believed the heart attack was the result of ruptured plaque in a clogged coronary artery, unrelated to Gougeon's collision with Parks. Dr. Chesne testified the heart attack started before the accident by as much as an hour.
Consistent with Dr. Chesne's opinion, Gougeon reported to a paramedic very soon after the accident that he had chest pain that he rated as four on a scale of 10. An EKG recorded signs of a continuing MI but did not reveal when the heart attack started or how severe it was.
Gougeon also reported a loss of memory to the paramedic and at the hospital. Any unconsciousness before the collision would have been consistent with an episode of arrhythmia. Another episode of ventricular fibrillation occurred in the hospital. In Dr. Chesne's opinion, Gougeon would have died regardless of the accident. However, Dr. Chesne testified Gougeon might possibly have survived the massive heart attack except for the accident.
3. Conflicts in the Expert Evidence
Dr. Wohlgelernter acknowledged he could not rule out that the heart attack started before the accident. Instead, he emphasized the absence of prior cardiac complaints and minimized Gougeon's heart-related conditions and hardening of the arteries. According to Dr. Wohlgelernter, Gougeon "never" had chest pains or irregular heart rhythms and no "major blockages." Dr. Wohlgelernter relied on Gougeon's medical and autopsy records from the day of the accident. He had no records predating the accident.
Dr. Wohlgelernter agreed there are different types of heart attacks but he said the one Gougeon had was "massive" and incapacitating from the outset. According to Dr. Wohlgelernter, such a heart attack does not start off mild and progress in intensity.
Dr. Wohlgelernter also offered the opinion that, if the heart attack had already begun, Gougeon could not have avoided the collision by braking. He claimed Gougeon could not have stood up on the motorcycle's "pegs" as he approached the point of impact, which Parks said he observed.
In contrast, defendant contends the evidence showed the accident did not cause trauma to Gougeon's chest sufficient to break his sternum. Gougeon had no trouble breathing after the accident. Had his sternum been severed, breathing would have been painful. The initial report of chest pain was only four on a scale of 10, and it is uncertain when the pain began.
The CT scan in the emergency room showed the sternum was intact. Dr. Chesne explained that, during the aggressive CPR Gougeon received, the medical personnel pressed down hard enough on his chest to crack the sternum. According to Dr. Chesne, some "stuttering" heart attacks may start, stop, and then resume. Dr. Chesne explained that, even if a person in the throes of a massive heart attack, he can still perform so long as arrhythmias or other effects have not caused hemodynamic changes that essentially stop the heart's pumping action. Even an "unconscious" person may respond automatically while having a heart attack.
4. Verdict and Posttrial Motions
The jury found that Parks was negligent as a driver but that defendant's negligence did not cause Gougeon's death. The trial court entered judgment for Parks. Plaintiffs filed motions for JNOV and for a new trial. The court denied plaintiffs' motion for JNOV. Speaking from the bench, the court said the jury was entitled to accept Dr. Chesne's opinion that the accident did not cause the heart attack, although the court disagreed. The court also granted the motion for new trial on causation and damages because Dr. Chesne improperly offered an expert opinion based on new information, citing Easterby v. Clark (2009) 171 Cal.App.4th 772, 778-779, and Kennemur v. State of California (1982) 133 Cal.App.3d 907.
III
MOTION FOR JNOV
On an appeal challenging a jury's verdict for lack of evidence, the reviewing court applies the substantial evidence rule, viewing the record in a light most favorable to the verdict, resolving all conflicts in the evidence and drawing all reasonable inferences in favor of the verdict. (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1245-1246.) The court "can interfere with the jury's determination only if, when the record is so viewed, we can say that there is no substantial evidence to support the verdict." (Kephart v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 291.)
An essential element of plaintiffs' case was that the accident caused Gougeon's heart attack and death. (Butigan v. Yellow Cab Co. (1958) 49 Cal.2d 652, 658-659.) The jury returned a verdict for the defense. Plaintiffs argue they were entitled to JNOV on the issue of causation based on the opinions of their expert, Dr. Wohlgelernter, and the coroner's pathologist. However, the "credibility of expert witnesses is a matter for the jury after proper instructions from the court." (Williams v. Volkswagenwerk Aktiengesellschaft (1986) 180 Cal.App.3d 1244, 1265; Easterby, supra, 171 Cal.App.4th at p. 778.) The trial court correctly instructed the jury it need not accept any expert's opinion. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 633; Wells Fargo Bank, N.A. v. 6354 Figarden General Partnership (2015) 238 Cal.App.4th 370, 392.) The court also instructed: "In deciding whether to believe an expert's testimony, you should consider . . . the facts the expert relied on." (People v. Prince (1988) 203 Cal.App.3d 848, 858.)
Thus, the jury had to decide whether to credit an expert's opinion at all, including whether the assumed facts were true and the significance of the assumed facts: "It is the jury's role and function to determine whether the hypothetical fact pattern is supported by the evidence, and whether to credit the expert's opinion." (Cooper v. Takeda Pharmaceuticals America, Inc. (2015) 239 Cal.App.4th 555, 584, citing People v. Vang (2011) 52 Cal.4th 1038, 1050.) The jury is the sole judge of the weight and effect of expert testimony and may disbelieve testimony if there is any rational reason for doing so and unless to do so would be "arbitrary." (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890; Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 633.) Even uncontroverted expert evidence is not binding on the jury. (Howard, at p. 633; Wells Fargo Bank v. 6354 Figarden General Partnership, supra, 238 Cal.App.4th at p. 392.)
Although plaintiffs contend the jury could not reasonably have rejected their expert evidence, their brief does not address the defense evidence contradicting the opinions of Dr. Wohlgelernter and the coroner's pathologist. Specifically, plaintiffs omit that Dr. Wohlgelernter admitted he could not rule out that Gougeon's heart attack had started before the accident. Plaintiffs also omit the evidence that the accident did not crack Gougeon's sternum. Plaintiffs exclude the paramedic's evidence that Gougeon could take a deep breath without discomfort. Furthermore, according to Dr. Chesne, the CT scan performed after Gougeon arrived at the hospital confirmed that the sternum was intact at that point. Simply stated, the paramedic's evidence and the CT scan contradicted Dr. Wohlgelernter's assumption that Gougeon suffered major chest trauma from the accident, triggering the heart attack.
Plaintiffs are correct "that medical causation must be proven based upon competent expert testimony." (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) But the defense did not have to prove the absence of causation. To succeed in overturning the jury's verdict and the order denying their motion for JNOV, plaintiffs must demonstrate that the evidence, viewed most favorably to the defense, compelled the jury to find that plaintiffs met their burden of proving causation, i.e., that a verdict for plaintiffs on causation was the only possible verdict given the state of the evidence. The record does not support that conclusion.
Dr. Wohlgelernter thought the explanation for Gougeon's death was straightforward. Gougeon was in an accident causing severe trauma to Gougeon's chest, cracking Gougeon's sternum and injuring his heart muscle and blood vessels. The physical injury to Gougeon's heart triggered his heart attack and Gougeon died from the heart attack. However, this explanation is founded on the disputed premise that Gougeon suffered a broken sternum in the accident. The paramedic's evidence and the CT scan indicated that Gougeon's sternum was intact when he arrived at the hospital. Therefore, the jury's rejection of Dr. Wohlgelernter's testimony was plausible and understandable.
Dr. Chesne described Gougeon at being risk for a heart attack at any time. Nothing in the actual injury to Gougeon's chest should have precipitated a heart attack. Instead, Dr. Chesne believed Gougeon's heart attack began as much as an hour before the accident. Dr. Wohlgelernter acknowledged he could not rule out that possibility.
Plaintiffs depend on a mischaracterization of part of Dr. Chesne's testimony. Plaintiffs' lawyer asked Dr. Chesne whether Gougeon could have survived if he had only suffered a heart attack and not been in the accident. Dr. Chesne said it was more probable than not, or better than 50 percent. On the other hand, it was also possible Gougeon would not have survived even without the accident. It was the jury's task to decide whether Dr. Chesne's testimony was convincing. (Showalter v. Western Pacific R. R. Co. (1940) 16 Cal.2d 460, 479.) However, it could not be presumed Gougeon would have survived his heart attack except for the collision because it was impossible to say how, when, and where else he might have initially received medical attention.
Plaintiffs failed to convince the jury that the accident caused the heart attack. Charged with evaluating the medical evidence, the jury reasonably decided that plaintiffs did not establish causation by a preponderance of the evidence. It cannot be said that plaintiffs' evidence required the jury to find a causal link between the accident and Gougeon's death. For the foregoing reasons, we affirm the order denying plaintiffs' motion for JNOV.
IV
MOTION FOR NEW TRIAL
Plaintiffs concede that the trial court did not provide a written statement of statutory grounds or a specification of reasons for granting a motion for new trial, as required by statute. (Code Civ. Proc., § 657.) Nevertheless, the appellate court still independently conducts a review of the order granting a new trial and the moving party has the burden of persuasion: "When a party . . . asks a reviewing court to sustain a defective trial court order, relying upon a ground stated in the new trial motion but not supported by a statement of reasons . . . 'the burden is on the movant to advance any grounds stated in the motion upon which the order should be affirmed, and a record and argument to support it' [citation] and to persuade the reviewing court that the trial court should have granted the motion for a new trial. Thus, the effect of the trial court's failure to file a statement of reasons in support of the order granting a new trial is to shift the burden of persuasion to the party seeking to uphold the trial court's order." (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 641, citing Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 905-906.) The appellate court must reverse the trial court's order granting a new trial motion unless the trial court was legally required to grant the motion. (Sanchez-Corea, at pp. 905-906.)
Based on our independent review, we conclude at least one ground existed legally requiring the trial court to grant the motion for new trial. The trial court granted a new trial based on "[i]rregularity in the proceedings of the court...by which either party was prevented from having a fair trial." (Code Civ. Proc., § 657, subd. (1).) "An 'irregularity in the proceedings' is a catchall phrase referring to any act that (1) violates the right of a party to a fair trial and (2) which a party 'cannot fully present by exceptions taken during the progress of the trial, . . . [Citations.]"' (Montoya v. Barragan (2013) 220 Cal.App.4th 1215, 1229-1230.)
At trial, defendant's expert, Dr. Chesne, testified somewhat differently than in his deposition that a CT scan showed an undamaged sternum when Gougeon first arrived at the hospital. While Gougeon was being treated, medical staff perforated one of his arteries, which led to a 45-minute effort to resuscitate him by CPR, crushing his sternum. Plaintiffs' counsel did not object to testimony about the CT scan but did object to testimony about an additional cause for Gougeon's death. After a chambers conference, the court instructed the jury to disregard Chesne's testimony that was critical of the hospital's "perforation of the artery."
Later, in ruling on plaintiffs' new trial motion, the court commented:
"With respect to irregularity in the trial proceedings . . . [w]hen Dr. Chesne took the stand, he testified that he felt that part of Mr. Gougeon's cause of death was the leak of the stent in the artery. And in response to that, the Court read the instruction to the jury [to disregard the testimony]. However, the Court feels that this presents problems under the Kennemur case and under the [Easterby vs. Clark (2009) 171 Cal.App.4th 772] case. You've got a situation here where Dr. Chesne for the first time offers an opinion based on new information, and Mr. Carr [plaintiffs' lawyer] doesn't know about this. It's the first time he hears it at trial. My recollection was we had a little discussion in chambers about this, and one of the first things I asked you was, has Mr. Carr's office been advised that Dr. Chesne, number one, has reviewed the angiogram, and number two, that he's got some new opinions regarding cause of death in this case. You were not able to produce any writing, to my recollection, indicating that Mr. Carr had in fact been informed of the new opinion and the new conclusions for Dr. Chesne. [¶] The Court feels that under CCP 2037, defense counsel has a good faith obligation to inform Mr. Carr if Dr. Chesne is going to change any opinions or offer new opinions at trial. So the Court agrees with Mr. Carr that that does constitute irregularity to the extent that this — that a new trial is warranted in this case."
The trial court's grant of a new trial is supported by the law and the facts. The Code of Civil Procedure requires parties to disclose the substance of expert testimony. (Code Civ. Proc., §§ 2034.210, subd. (a); 2034.260, subd. (c)(2); Williams v. Volkswagenwerk Aktiengesellschaft, supra, 180 Cal.App.3d at pp. 1257-1258.) Section 2034.300, subdivision (d), allows the trial court to exclude from evidence the expert opinion of any witness offered by a party who has unreasonably failed to make that expert available for a deposition. (Williams, at pp. 1257-1258; Bonds v. Roy (1999) 20 Cal.4th 140, 148; Kennemur v. State of California, supra, 133 Cal.App.3d at p. 919.) When counsel is not notified when the opposing party's expert witness formulates postdeposition opinions to be offered at trial, the witness is "in effect not made available for deposition as to the further opinions . . . ." (Jones v. Moore (2000) 80 Cal.App.4th 557, 565.)
Similarly, in Kennemur and Jones, the courts held that, because the parties were entitled to rely on an expert's disclosure of all opinions to be offered at trial, an expert should be prohibited from giving a different opinion at trial. (Kennemur v. State of California, supra, 133 Cal.App.3d at pp. 919-920; Jones v. Moore, supra, 80 Cal.App.4th at pp. 564-566.) In Easterby, the court distilled the "overarching principle" from Kennemur, Jones, and Bonds as follows: "[A] party's expert may not offer testimony at trial that exceeds the scope of his deposition testimony if the opposing party has no notice or expectation that the expert will offer the new testimony, or if notice of the new testimony comes at a time when deposing the expert is unreasonably difficult." (Easterby v. Clark, supra, 171 Cal.App.4 at p. 780.) Otherwise, the opposing party lacks a "'fair opportunity to prepare for cross-examination or rebuttal.'" (Ibid., quoting Bonds v. Roy, supra, 20 Cal.4th at p. 147.)
We reject defendant's effort to rely on Code of Civil Procedure section 2034.310 to make Dr. Chesne's new testimony admissible as impeachment testimony against plaintiffs' expert. That statute would allow defendant to call for impeachment purposes a witness not designated by defendant but designated by another party. But defendant cannot use section 2034.210 to elicit new testimony from defendant's own already-designated witness.
Originally, Dr. Chesne had testified the fatal heart attack had begun before the accident. At trial, he added information about the hospital's treatment which explained how the sternum was fractured after the accident. Dr. Chesne's reliance on his knowledge of the CT scan was not objectionable. However, Dr. Chesne modified his previous testimony to include new information that the hospital had perforated one of Gougeon's arteries, causing significant bleeding, and fractured his sternum while trying to resuscitate him. The new information created an irregularity which confused the jurors who asked for clarification. Given defendant's primary reliance on Dr. Chesne's testimony to explain the cause of death was from a heart attack starting before the accident, it is reasonably probable that a result more favorable to plaintiffs might have been reached in the absence of Dr. Chesne's new testimony. (See Basham v. Babcock (1996) 44 Cal.App.4th 1717, 1723-1724 [finding prejudicial error in low-speed vehicular injury case where trial court improperly admitted supplemental causation opinion].) Because we independently conclude there is at least one ground legally compelling the trial court to grant a motion for new trial, we do not need to consider plaintiffs' other grounds for granting a new trial, which are variations on a similar theme.
V
DISPOSITON
We affirm the orders of the trial court denying plaintiffs' motion for JNOV and granting plaintiffs' motion for new trial. We order the parties to bear their own costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. MILLER
J.