Opinion
H024027.
7-22-2003
ANTHONY HESKETT et al., Plaintiffs and Appellants, v. LAURA S. HALLINAN, Defendant and Respondent.
A jury unanimously found that the admitted negligence of defendant Laura S. Hallinan in rear-ending the automobile driven by plaintiff Anthony Heskett (Heskett) on March 23, 2000, was not a cause of injury to him and his wife plaintiff Meredith Heskett. The Hesketts had sued for personal injury and property damage. The trial court denied plaintiffs motions for judgment notwithstanding the verdict and for a new trial. Judgment was entered for defendant. On appeal, plaintiffs claim the verdict is not supported by substantial evidence and that admission of evidence that defendant and her husband were both unemployed and that they had two young children was prejudicial error.
FACTS
The March 23 accident was the second in five months in which Anthony Hesketts 1989 Mercury Sable station wagon was rear-ended on the left side. The first accident, which both Hesketts thought was more severe, occurred in October 1999. It caused injuries to Hesketts neck and back that required medical treatment and physical therapy but which did not interfere with his continuing his 40-year career as an automobile mechanic. After the second accident, however, pain and diminished mobility rendered Heskett unable to work, and he claimed the accident significantly aggravated a preexisting condition. Hallinan admitted negligence but disputed the claimed injuries and damages. Plaintiffs calculated that if Heskett worked to age 70, loss of income earnings, fringe benefits, and loss of household services added up to $ 943,373. Heskett took great pride and enjoyment from his work and at age 57 at the time of trial, he planned to continue working "forever, . . . [P] . . . [P] . . . [or] as long as I could."
The second accident occurred at 7:30 a.m. when Hallinan was going to work in her four-door Honda Civic. She saw Hesketts station wagon stopped at the traffic light at the intersection of San Tomas Aquino and Saratoga Avenue. She came to a stop about half a car length behind him. It appeared to her that Heskett was planning to turn right on the red light which was allowed after a complete stop and she looked for oncoming traffic. She noticed that there was none, and she also noticed that Heskett moved forward a bit and was also looking toward oncoming traffic. She took her foot off the brake and her car started to accelerate from the stopped position and hit the left rear of Hesketts station wagon. Her car had an automatic transmission and tended to creep forward when it was in gear if she took her foot off the brake. She estimated it reached five miles per hour. The air bags in the Honda did not go off.
The impact pushed Hesketts vehicle forward approximately a car length causing a whiplash injury while his head was turned to the left. Both drivers pulled their cars over to the side of the road and exchanged information. Hallinan asked Heskett if he was "okay." She could not remember if he said yes, "but he did say, `I have been in a previous accident, and I have been going to physical therapy. " Heskett looked at the front of Hallinans Honda but did not say he saw any damage to it. Both Heskett and Hallinan looked at the back of the station wagon. Hallinan remembered "crawling down on the ground" looking underneath the bumper underneath the license plate for damage. She did not see any damage and Heskett said at the time, "I dont see anything here. I dont think anything is going to come of this." However, Heskett testified that minor scratches on his left rear bumper were visible at the scene.
When Heskett got to work, he put his station wagon up on the hoist and observed that the left bumper shock absorber had been pushed in and that the left bumper was pushed away from the car. Heskett testified that the bumper shock absorber had not been replaced after the October 1999 accident but he thought it would have been replaced if it had been necessary. Heskett could not say whether the damage that he described was caused by the October accident or the March accident. After the March accident, Heskett had a new bumper shock absorber installed and had some work done on the bumper. Photographs of Hallinans Honda showed that its damage was a scratch in the paint above the "o" and the "r" in "California" on the license plate. She did not have it repaired.
As the day of the accident wore on, Heskett had increasing pain in his neck and shoulders and he called his wife to take him for medical treatment. He returned to work the following day and attempted to work the week after the accident, but he was in too much pain to continue. After Heskett stopped working, his activities were very limited. He helped his wife in her antique shop, used his sisters heated swimming pool to do the exercises the physical therapist recommended, watched TV, and occasionally played cards with a friend.
Lagia Yrastorza, a physical therapist for Santa Clara Kaiser Permanente with a masters degree in physical therapy from Boston University, first saw Heskett on December 16, 1999, when he was referred for treatment of injuries received in the October 26, 1999, accident. He suffered from pain and limitation of movement. Yrastorza felt that Heskett was making a good recovery following the first accident. She saw him two days before the second accident and she felt he was "much improved" from his condition after the first accident although he complained to her of right neck pain of three on a scale of 10 and a week earlier he had complained he was "dying" from the neck pain. Hesketts condition "waxed and waned." Even nine days before the second accident, he had periods of impaired mobility and "severe" pain, but that overall he was improving.
At Hesketts first visit to Yrastorza five days after the March 23 accident, his pain had doubled and he had a significant range of motion loss in all directions. He started developing headaches at the base of the skull and was complaining of burning pain in and around the neck and shoulders. By July of 2000, Hesketts condition had plateaued and Yrastorza referred him to the Kaiser pain clinic. After she saw Heskett on September 28, 2000, she reported to his internist Dr. David Yoon that his pain and stiffness could be managed " `in weekly interventions occur; however, with lapses in time, patients symptoms occur and even worsen. Because of this, patient only benefits from therapy for short period of time. Long-term improvement has not been over past several months as patients symptoms continue to wax and wane. . . . [P] And I spoke regarding long-term/disability and agreed that patient would be unable to work at current job without exacerbating or re-injuring his neck."
Heskett had 12 sessions of acupuncture and was provided with a portable electrical stimulation unit to control pain at home. His shoulder pain was relieved but not his neck and back pain. One week before trial in October 2001, he had still not regained the improvement that he had achieved after the first accident up to the time of the second. Yrastorza stated from her experience, with each subsequent motor vehicle accident, the prognosis for injuries to the neck gets poorer. "Mr. Heskett is one of two or three people I have seen who have been in multiple car accidents, and they dont get better."
Dr. Yoon did not testify. Plaintiffs presented the testimony of medical expert Dr. Barry Ludwig, who was a board-certified neurologist licensed in California since 1979, on the faculty at the University of California, Los Angeles, responsible for training medical residents, and who also saw private patients. Dr. Ludwig performed a physical examination of Heskett and reviewed his records. He found that Heskett had normal head rotation, extension and flex, that is, movement from side to side, backwards, and forwards, chin to the chest, but those movements and any tilting and tipping of the head were accompanied with pain. Heskett had half the normal range of lateral bend to the right, that is, bringing the ear down to one side, and 75 percent to the left, all accomplished with "extreme" pain. Ludwig stated that Heskett "was trying his best. . . . he gave me full effort with his strength." Ludwig opined that Heskett "started off with a severe . . . cervical strain which was healing and had not completely healed, because he was still having good and bad periods but was doing very well. And then as a result of the second accident with the head being turned, he [had] had additional soft tissue injury with damage to tendons and ligaments and may well have even caused some . . . disk protrusions at that time." Ludwig found Heskett very depressed because he could not return to work. Ludwig believed the second accident caused "more or fewer of his problems." "He was no longer able to work. He deteriorated with respect to his range of motion. There are at least two entries from doctors noticing weakness in the hands or arms, and the therapist noted that he was worse. Hes had ongoing symptoms."
Evidence of Hesketts 1995 heart attack and any subsequent issues regarding his heart condition were excluded although Yrastorza was allowed to testify that she knew that Heskett had had a heart attack in 1995 and that in May after the second accident he had complained of chest pains so she "held off" resistive exercises which stress the heart such as weight lifting and pulling up on bands. She also testified that she and Dr. Yoon had agreed that Heskett should not work and that they were considering permanent disability for Hesketts "neck problems totally unrelated to his heart problems."
Dr. Ludwig opined that Heskett stopped working at the gas station because of his neck problems rather than because of his heart problems. He also stated that some of the disc protrusions and abnormalities shown on the MRI of Hesketts neck were degenerative and longstanding and had nothing to do with the accident. Others may have been caused by trauma, but what the trauma was or when it occurred before the MRI was unknown. However, when he examined Heskett, the only positive finding was decreased range of motion in his neck. Dr. Ludwig did not find any weakness, atrophy, sensory loss, or reflex change. He testified, "his exam is benign." In response to a hypothetical question, he stated that in light of statements Heskett made to Yrastorza, that there had not been steady improvement in Hesketts condition after the first accident.
Mrs. Heskett testified that she never noticed her husband to have neck problems before the first accident on October 26, 1999, and that after the first accident he was still able to work. After the second accident, however, she asked him not to drive because of the pain in his neck and the antidepressants he was on. Heskett was off work for six weeks after the heart attack in 1995, but once he returned to work, he did not take any time off until the October 1999 accident. After that accident, he worked again until the second accident, and he had no problems with his heart during that time period. He was on daily heart medication.
After the second accident, he indicated he was having chest pains, and in April 2000 he had a chest x-ray and in May 2000, he was checked out for heart problems. Mrs. Heskett was concerned about Hesketts heart problems but was reassured after the tests.
However, Ludwig testified that Hesketts medical records showed that he failed the May 2000 Echo Stress Test and a Thallium test suggesting there could be a compromise of the coronary artery, and that Heskett was placed on antidepressants by his cardiologist. However, the Thallium test showed there was less ischemia in 2000 than there was in 1997. Ludwig stated, "people can get chest pains for reasons other than cardiac disease, and if one has a flexion/extension injury such as he had here, one can get myofacial pain in the neck, the shoulders, and going into the pectoral muscles. [P] So just because he had chest pain doesnt mean that its all cardiac disease. Especially in view of a thallium test which shows improvement of blood flow over three years earlier." Ludwig also raised the possibility that Hesketts chest pain was "myofacial pain, that this is pain from the accident. [P] The cardiologist decided not to do anything after these studies. But the definitive study showed improvement, and they decided not to pursue anything further. [P] So this pain could be related to the accident."
Ludwig noted that Heskett had undergone an angioplasty in 1997 that failed, so the blockage in his coronary artery remained. He had a repeat catheterization in March 1997 that revealed a complete blockage of the right coronary artery and lesser occlusions of the left and left anterior descending arteries. Ludwig stated, some of Hesketts pain "undoubtedly is of cardiac origin, . . . What is heart disease and what is muscular disease? Not everything in the chest is heart." The April 2000 chest x-ray was done because "it could be lung disease. It could be musculoskeletal. It could be tendinous. If you knew there was heart disease, you wouldnt do a chest x-ray. You would do an EKG. You would have a Stress Echo. He did this trying to see is theres [sic] any other reason for his chest pain. If he was so certain it was all cardiac, why bother to get a chest x-ray? . . . [P] . . . [P] You dont diagnose a heart attack on a chest x-ray. [P] . . . [P] It was to do a complete evaluation to see what else could be contributing."
Mrs. Heskett testified that she owned an antique shop which was open six days a week. Heskett helped out there on the weekends, wiping down furniture, helping people, talking to people, and refinishing furniture. He would also move the furniture. After the first accident, Heskett complained of neck pain every day, but it was getting better. Heskett continued to come to the shop after the second accident but instead of refinishing, he did more polishing and restoring the finishes, which is a different process. At home, he could no longer do things he did in the past such as installing a dishwasher and garbage disposal, cleaning out gutters, and vacuuming with the big vacuum cleaner. Mrs. Heskett sold the antique shop and she and her husband sold their house because they could not afford to live in the area if Heskett could not work. In July 2001, Mrs. Heskett started seeing a psychiatrist because of the effects on her of the injuries to her husband.
The Hesketts neighbor and friend of 24 years Becky Johnson testified that she knew of Hesketts heart attack and that he had blocked arteries. The heart problem "was not a big issue" for Heskett, and Heskett and his wife "never talked to [her] about him being depressed because of the problems he was having with his heart." "He just pretty much complained about his neck and back. I didnt really hear about his chest." Johnson testified that after the second accident, Heskett was in a lot of pain and was tired in the evening so that they no longer had barbecues and bimonthly Mah-jongg games. After the accident, "we would help with anything. We would help take the garbage out. It was rainy season, and [Heskett] would get up on the ladder, but he asked my husband to come and help clean out the gutters."
Mrs. Hesketts sister testified that the Hesketts had come to live with her in her three-bedroom townhouse. She observed that since the second accident, Heskett was very depressed and irritable. He was unable to do the things around the house he had done before, and he was unable to participate in softball games or other things they did at family functions on the weekends. He had to be a "bystander" who "sits in the chair for a while, and then he will stand up for a while, and then he will walk around the house for a while. He is not in any one position for . . . too long." Mrs. Hesketts role changed. She became "responsible for everything that happened, decisions that have to be made. She drives most of the time, whereas before he always drove everywhere . . . . She has to take care of him more than she used to. And their conversation . . . hes kind of forgetful, so she has to repeat things more than usual, before." In addition, Heskett gained quite a bit of weight. Heskett complained of neck and shoulder pain after the first accident, and neck and shoulder pain, headaches, and "not much strength in his hands" after the second accident.
Hesketts friend Veryle Hunt testified that there was an "hundred percent change" after the second accident. He hurt a lot and spent a lot of time sleeping and could no longer help lift or move things at his wifes shop. Hesketts boss for 10 years and business acquaintance for 37 years J. Hampton Hoge, III, testified that Heskett was the most reliable employee he ever had, that he was "almost never off," that he received a little therapy after the first accident and "it seemed to be fine . . . until the second accident," and that after the second accident he tried to work for a day or two but could not because he was in so much pain he could not move his head. Once Heskett started treatment, the time off work was extended month by month, and after April 1, he never came back to the workplace.
Plaintiffs alleged that they suffered wage loss, loss of earning capacity, medical and hospital expenses, property damage, loss of use of property, general damage, and loss of consortium. After a five day jury trial, verdict and judgment were entered for defendant. This appeal ensued.
ISSUES ON APPEAL
Plaintiffs claim the verdict was not supported by substantial evidence and the court abused its discretion in permitting evidence of defendants financial status to be presented.
SUFFICIENCY OF THE EVIDENCE
Plaintiffs claim that there were no "explicit conflicts in the evidence and, therefore, none to be resolved in favor of [defendant]." Hallinan "presented no evidence at trial other than her own description of the accident, which was essentially the same as that of [plaintiffs]."
"In determining whether the evidence is sufficient to support such a determination, we must not only accept as true all factual findings which are not inherently improbable [citation], but must also draw all reasonable inferences in support of the judgment which the facts are capable of sustaining. [Citation.]" (Dobrick v. Hathaway (1984) 160 Cal. App. 3d 913, 921, 207 Cal. Rptr. 50.) "First, one must resolve all explicit conflicts in the evidence in favor of the respondent and presume in favor of the judgment all reasonable inferences. [Citation.] Second, one must determine whether the evidence thus marshaled is substantial." (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632-1633, fn. omitted.)
The participants descriptions of the accident were not the only relevant evidence presented at the trial. Plaintiffs did not present substantial evidence that the second accident was the cause of the personal injuries, the property damage, and loss of consortium. Evidence of damage to the station wagon established that the first accident caused more damage to it than the second. The replaced part, the bumper shock absorber which had been bent and pulled away from the vehicle, which was supposed to be evidence of the force with which Hallinan struck plaintiffs station wagon, had sustained impacts from both accidents. There was no evidence in the record from which the trier of fact could conclude that the second, less serious accident, which left a couple of scratches on Hallinans Honda and did not inflate its air bag, was the major cause of the damage to the Hesketts station wagon.
Similarly, evidence of Hesketts injuries from the first accident and of his therapy afterwards, established that there was little difference in his complaints between the first accident and the second and after the second accident. A little more than a month before the second accident he told Yrastorza that his neck was "killing" him; nine days before the second accident he told Yrastorza that he was "dying" from neck pain; and even two days before the second accident, Yrastorza rated the neck pain he described to be "severe." She admitted that his pain and mobility between the two accidents "waxed and waned." Plaintiffs expert Dr. Ludwig testified that his physical examination found that Hesketts neurological tests were all within normal limits and that he could find no objective indications of injury such as atrophy, loss of strength, or loss of sensation. He also stated that some of the physical injury to the neck and spine shown in the MRI taken after the second accident was degenerative and longstanding but that in the absence of an MRI between the first and second accidents, it was impossible to tell which injuries were attributable to the second accident. Therefore, it was impossible to tell if the second accident caused additional injuries that resulted in the pain and loss of motion that Heskett experienced. Ludwig did not doubt the pain that Heskett described, but in light of Hesketts weekly descriptions of his condition to Yrastorza, he could not say there had been "steady improvement" in Hesketts condition that was exacerbated by the second accident.
We are ever cognizant that "`it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. " (People v. Thornton (1974) 11 Cal.3d 738, 754, 114 Cal. Rptr. 467, 523 P.2d 267, disapproved on other grounds, People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12, 160 Cal. Rptr. 84, 603 P.2d 1.) There was a conflict in the interpretation of the evidence which the trier of fact determined adversely to plaintiffs. Substantial evidence supports the determination. There was no error.
Plaintiffs also complain that because Hallinans financial condition was not an issue at trial, the court erred in refusing to exclude evidence of the bare facts that Hallinan and her husband were unemployed and had two young children. Because we have found that plaintiffs failed to meet their burden of proof as to each fact the existence or nonexistence of which is essential to the claims for relief that they were asserting (Evid. Code, § 500), we need not reach their claim that prejudicial evidence was admitted.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Rushing, P.J., Elia, J. --------------- Notes: The question she was answering framed the time period from the year of her birth, 1946, to the first accident.