Opinion
A114663
4-19-2007
ROBIN GUILD, Plaintiff and Appellant, v. ALLIANCE IMAGING, Defendant and Respondent.
NOT TO BE PUBLISHED
I.
Appellant Robin Guild appeals from a civil judgment entered in favor of respondent Alliance Imaging following a jury trial. Appellant contends that the trial court erred in instructing the jury on the issue of causation. We conclude that, because the jury determined that respondent was not negligent and, therefore, it did not reach the issue of causation, any claimed error was not prejudicial and is harmless.
II.
Appellant filed a civil complaint against respondent and others. The complaint alleged that respondent negligently delayed in performing an MRI exam on appellant, which later revealed "a massive hematoma impinging upon the spinal cord of [appellant]." The hematoma was surgically removed, but the operation occurred "too late," resulting in "permanent and irreversible paralysis in [appellant] from the mid chest down." As a result, personal injury damages were sought.
After the conclusion of the evidence, the trial court instructed the jury, including the following with regard to the issue of causation as to respondent:
"A persons negligence may combine with another factor to cause harm. If you find that [respondent]s negligence was a substantial factor in causing [appellant]s harm, then [respondent] is responsible for the harm. [Respondent] cannot avoid responsibility just because some other person, condition, or event was also a substantial factor in causing [appellant]s harm.
"In order to establish that [respondent]s negligence was a substantial factor in causing the harm, [appellant] must prove to a reasonable medical probability that the negligence was, by itself, sufficient to bring about the harm."
A special verdict was returned by the jury in which it found that respondent was not negligent. Specifically, the question on the special verdict form relating to the negligence of respondent and another defendant, a Dr. Rodriguez, was posed and answered, as follows:
"Question No. 5:
"A. Was Dr. Rodriquez negligent in the treatment of [appellant]? [¶] . . . No[.]"
"B. Was [respondent] negligent in the treatment of [appellant]? [¶] . . . No[.]"
The special verdict form went on to explain how the jury should proceed depending on how this question was answered: "If you answered `Yes to any part of Question No. 5, then answer Question No. 6. If you answered `No to all parts of Question No. 5, and your answered `Yes to Question No. 2 or to Question No. 3, or you answered `No to Question No. 4, STOP here. Answer no further questions and have the presiding juror sign and date this form."
Questions 2, 3, and 4 dealt with whether appellant gave his informed consent to a procedure performed by a third defendant, Dr. Economou, and if not, whether he was harmed as a result.
Consistent with the instructions on the verdict form, the jury did not fill in any further portion of the form, including the following question left blank by the jury: "Was [respondent]s negligence a substantial factor in causing harm to [appellant]?"
Thereafter, a judgment by special verdict was filed by the trial court in favor of respondent and against appellant on April 27, 2006. Appellant filed a motion for new trial on May 29, challenging the causation instruction given by the trial judge as it related to the claim against respondent. The motion was opposed on its merits along with procedural defenses which contended that the motion was untimely and that it failed to comply with the notice requirement of Code of Civil Procedure section 659 (section 659), governing motions for new trial. The trial court denied the motion on the procedural grounds asserted by respondent.
All further unspecified date references are to the year 2006.
III.
The instructions given the jury on the issue of causation quoted above, combined CACI No. 406 with a special instruction requested by respondent. On appeal, appellant concedes that the giving of CACI No. 406 was proper. However, he claims that giving that instruction along with respondents special instruction may have misled or confused the jury into believing that it had to find that respondents negligence was greater than 50 percent of the total fault before it would be a "substantial factor" in causing appellants harm.
As quoted above, the last sentence of the causation instruction comprised respondents special instruction.
As it did in the trial court, respondent contends on appeal that appellant can claim no error resulting from the trial courts denial of his motion for new trial because the motion was untimely, and its notice was defective under section 659. Since the trial court denied appellants motion for new trial on these same procedural grounds, we are more than surprised that appellant failed to address them in either his opening or reply brief on appeal.
Because notice of entry of judgment was filed and served by the court on April 27, respondent contends the latest date for filing a motion for new trial was May 12. (§ 659.) Therefore, respondent asserts, appellants motion was two weeks late.
Nevertheless, we need not reject appellants claim and affirm the judgment below for procedural reasons. As respondent notes in addressing the merits of appellants appeal, any asserted error in instructing the jury on the issue of causation necessarily was harmless because of the simple fact that the jury never reached the issue of whether respondents conduct caused appellants harm. As we have noted above, the jury found that respondent was not negligent. Therefore, in accordance with the instructions on the special verdict form, the jury did not decide the causation issue. For this reason, even if the causation instructions were confusing, misleading, or simply legally erroneous it did not matter, because appellant could not have been prejudiced by any such error.
Our disposition of this appeal does not require that we decide, and we do not decide, whether the instructions were legally correct, or if they were confusing in light of other instructions given.
"A judgment may not be reversed for instructional error in a civil case `unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13.)" (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 580.)
Instructional error rises to that level " `[w]here it seems probable "that the error prejudicially affected the verdict. (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 875.) A mere possibility of prejudice is not enough. (People v. Watson (1956) 46 Cal.2d 818, 836-837.)
Because prejudice must, but cannot, be shown on this record, we affirm the judgment for respondent.
IV.
Judgment for respondent is affirmed. Respondent is awarded its costs on appeal.
We concur:
Reardon, J.
Sepulveda, J.