Opinion
As Modified on Dcnial of Rehearing July 16, 1970.
Opinion on pages 770-782 omitted.
HEARING GRANTED
For Opinion on Hearing, see 94 Cal.Rptr. 623, 484 P.2d 599.
Milan Moacanin, Hollywood, for plaintiff and appellant.
Hagenbaugh, Murphy & Davies and John Davies, Los Angeles, for Graymar, Inc.
Spray, Gould & Bowers, John J. Costanzo and Henry F. Walker, Los Angeles, for General Motors Corp.
[88 Cal.Rptr. 136] IRWIN, Associate Justice Pro Tem.
Retired judge of the superior court sitting under assignment by the Acting Chairman of the Judicial Council.
The plaintiff appeals from a judgment in his favor for $6,100, entered upon a jury verdict. The action arose out of a freeway rear end collision occurring on April 12, 1965. Defendants admitted liability and the only issues tried were what injuries plaintiff sustained as a proximate result of the accident and the amount of his damage. The plaintiff on this appeal takes issue with several evidentiary rulings made by the trial judge and with the court's instructions to the jury.
I
Defendants, over plaintiff's objection, were allowed to introduce evidence of payments made to the plaintiff by two insurance companies to cover his medical expenses alleged to have resulted from the accident. This evidence showed that, while he was in the hospital, the plaintiff received $600 per month from one insurance carrier and a flat $2,000 for medical bills from another. The fact that insurance existed was later referred to at trial by plaintiff's counsel including the fact that plaintiff received a total of $6,303 from one company (in addition to the $2,000 received from the other).
In Garfield v. Russell (1967) 251 Cal.App.2d 275, 59 Cal.Rptr. 379, the court held that, upon a proper foundational showing, evidence of medical payments from an insurance company was admissible. The court reasoned that 'Evidence that a plaintiff is being wholly or partially compensated for her medical expenses--or perhaps even making money every time she sees her doctor--may obviously be relevant on her motives in seeking medical help and her credibility as a witness, even if only remotely.' (251 Cal.App.2d at p. 278, 59 Cal.Rptr. at p. 381.) As there is no section specifically excluding this evidence, the trial judge is governed by Evidence Code, section 352 which directs the court to balance the probative value of the evidence against the possibility of undue prejudice. In the absence of an abuse of discretion, the trial court's ruling on this issue cannot be overturned. (Acosta v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 19, 26, 84 Cal.Rptr. 184, 465 P.2d 72; Helfand v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 16, 84 Cal.Rptr. 173, 465 P.2d 61.)
In Helfand v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 1, 17, 84 Cal.Rptr. 173, 465 P.2d 61 n. 23, the Supreme Court states that it is 'persuaded by the reasoning' of the United States Supreme Court in Eichel v. New York Central R. Co. (1963) 375 U.S. 253, 84 S.Ct. 316, 11 L.Ed.2d 307. In Eichel the trial court excluded evidence of disability pension payments made to the plaintiff in an F.E.L.A. action. The Court of Appeal reversed holding it prejudicial error to exclude this evidence. The Supreme Court reversed the Court of Appeal stating 'In our view the likelihood of misuse by the jury clearly outweighs the value of this evidence. Insofar as the evidence bears on the issue of malingering, there will generally be other evidence having more probative value and involving less likelihood of prejudice than the receipt of a disability pension.' 375 U.S. at p. 255, 84 S.Ct. at p. 317. Justice Harlan, concurring and dissenting, characterized this case as establishing a rule of law for F.E.L.A. cases and stated that he felt the trial court should be allowed to exercise its discretion and strike 'a balance between its probative bearing on the issue * * * and the possibility of prejudice.' 375 U.S. at p. 256, 84 S.Ct. at p. 318.
In the present case, the trial court conducted a lengthy hearing in chambers in order to (in the words of Helfand, supra, [88 Cal.Rptr. 137] 2 Cal.3d at page 16, 84 Cal.Rptr. at page 183, 465 P.2d at page 71): '* * * assess the prejudicial effect of telling the jury about insurance coverage * * * against the probability that the party who seeks to present evidence of insurance coverage can show a proper relationship between the coverage and an issue in the case.' Counsel for defendants, by offers of proof and representations made to the trial judge during argument of the matter, made an adequate showing upon which to allow the evidence to come in. Evidence subsequently admitted bore out the offers and representations.
When this evidence was presented to the jury the court gave a preliminary cautionary instruction limiting the purpose of this testimony. In addition, the court on its own motion formally instructed the jury to consider insurance payments for the limited purpose of determining plaintiff's motive in seeking medical help and his credibility as a witness. We also point out that defense counsel properly explained the relevance of this evidence in their closing argument to the jury.
'THE COURT: Ladies and gentlemen, the defendant is going to be allowed to inquire of this witness into certain insurance payments which he received during the years, 1965 to 1967. I want to instruct you at this time so you won't be under any misapprehension as to the nature of this evidence, that this evidence is relevant only to show the motive of a party in seeking medical help and his credibility as a witness. The defendants are not entitled to have any reimbursement received by the Plaintiff deducted from the total amount of damages if any, which the jury might, otherwise, award. You will be further instructed on that at the time of the conclusion of the trial but in receiving this evidence at this time I want you to keep in mind the purpose for which this is being introduced at this time. It is a limited purpose, as you can tell.'
'Plaintiff is entitled to recover from the defendants for all items of claimed detriment you find to have been suffered by him as a proximate result of the negligence of the defendants.
II
Plaintiff next contends that the court erroneously precluded his attending physician from testifying as to the contents of a report prepared by another doctor who had died prior to the trial. A physician [88 Cal.Rptr. 138] in testifying may express an opinion based upon reports and opinions of other physicians. (Evid.Code, § 801(b).) In California Evidence (2d ed) Witkin states on page 368 in regard to this section:
'Q. Now, what are the major complaints at this time that you find in Mr. Hrnjak?
'The statutory requisite is a general one: The information must be 'of a type that reasonably may be relied upon' by the expert in forming his opinion upon the subject. (Ev.C. 801(b).)
'The matters need not be admissible. This provision in Ev.C. 801(b) expresses, somewhat more broadly, a view previously recognized by our courts: Many types of information which could not be directly produced as competent evidence are nevertheless commonly used by experts in forming their opinions. The following are examples:
'(1) Doctor's reliance on information given by other doctors. (See Christiansen v. Hollings (1941) 44 Cal.App.2d 332, 347, 112 P.2d 723; Hope v. Arrowhead etc. Waters (1959) 174 Cal.App.2d 222, 230, 344 P.2d 428; Kelley v. Bailey (1961) 189 Cal.App.2d 728, 737, 11 Cal.Rptr. 448; 35 So.Cal.L.Rev. 194; cf. 98 A.L.R. 1109; McCormick, p. 32.)'
In the present case there is nothing to disclose that the testifying doctor formed an opinion on the basis of Dr. Gundrum's report--he merely stated that he sent the plaintiff to Dr. Gundrum because he was concerned with 'some trauma to the ear.' No attempt was made to elicit the witness's opinion as to the cause of his patient's dizziness, nor was any offer of proof made to that effect. There is no showing that plaintiff tied Dr. Gundrum's report into an opinion that the expert witness himself had formed. Thus the court properly excluded Dr. Gundrum's report as there is no showing that he formed an opinion based upon it.
The most recent case on the subject, Springer v. Reimers (1970) 4 Cal.App.3d 325, 84 Cal.Rptr. 486, followed Kelley v. Bailey in limiting the purpose for which a nonappearing doctor's report could be used. The court stated '* * * we first observe that it is well settled that properly authenticated hospital records may be received in evidence as 'business records' insofar as they record personal observations of the attending physician or pertinent statements of the patient's history which the physician has made use of in reaching his professional opinions. [Citations.] Under this rule the report of a doctor to whom a patient is referred by a medical witness and which is used by such witness as a part of the history of the case and used by such witness in arriving at his diagnosis is admissible even though the doctor who made the report is not called to the stand.' (4 Cal.App.3d at p. 338, 84 Cal.Rptr. at p. 493.) [Emphasis added.]
III
The plaintiff was not allowed to cross-examine a defense expert as to the contents of Dr. Gundrum's report. The [88 Cal.Rptr. 139] plaintiff here contends that since the expert 'considered' Dr. Gundrum's report, he may then confront him with its contents. However, the expert here stated that he did not 'rely' on the report, and there is no evidence that he based an opinion upon it.
'Q And in your report you mentioned Dr. Gundrum, did you not?
Evidence Code section 721(a) permits cross-examination of an expert as to 'the matter upon which his opinion is based and the reasons for his opinion.'
Where a physician testifies that he considers another physician's report in forming his opinion or diagnosis, the said report or opinion may be used in the cross-examination of the testifying expert. (Hope v. Arrowhead & Puritas Waters, Inc. (1959) 174 Cal.App.2d 222, 344 P.2d 428; Rosener v. Larson (1967) 255 Cal.App.2d 871, 63 Cal.Rptr. 782.)
On the record before us, we have the statement of the witness that he did not rely upon Dr. Gundrum's report after 'considering' it. The two cases cited above indicate that more than mere 'consideration' must be involved; there must be a showing that the testifying witness gave some credence to the report and that it thereby qualifies as 'matter upon which his opinion is based' (Evid.Code, § 721(a)). Thus, there was no foundation established here for use of the report to impeach the testifying witness.
IV
Plaintiff contends that he was improperly denied the right to cross-examine a defense witness. However, there is no indication that he requested further cross-examination after his first question was stricken. This failure precludes him from raising the point on appeal.
'Q Doctor, would you consider this good medical practice for an internist to refer the patient with those types of symptoms to an eye specialist?
V
Plaintiff contends that it was error for defense counsel to read certain interrogatories propounded to plaintiff, and his answers to them. In Mayhood v. La Rosa (1962) 58 Cal.2d 498, 500, 24 Cal.Rptr. 837, 374 P.2d 805, the court stated: 'Code of Civil Procedure section 2030, subdivision [88 Cal.Rptr. 140] (b), provides that answers to interrogatories 'may be used to the same extent as provided in subdivision (d) of Section 2016 of this code for the use of the deposition of a party.' Section 2016, subdivision (d), paragraph (2), provides that, 'so far as admissible under the rules of evidence,' any part or all of the deposition of a party 'may be used by an adverse party for any purpose.' Thus, insofar as plaintiff's deposition and answers to interrogatories contained admissions, they should have been admitted in evidence.'
The answers to the interrogatories read contained primarily plaintiff's statements of his symptoms. Clearly most of the material was admissible as an admission. Plaintiff, however, contends that certain statements were actually medical diagnoses to which he was not competent to testify. There is no indication in the record that he asked for these particular statements to be stricken.
In People v. Lang Transportation Corp. (1941) 43 Cal.App.2d 134, 110 P.2d 464, reports of complaints were admitted to prove notice to the state of defects in a bridge. There was a general objection to the documents. In answering the contention that certain portions were inadmissible the court stated: 'No specific objection was made to these particular objectionable passages nor motions to strike, the only objection made being general and going to the report as a whole. The principle is well established that if a portion of a document is inadmissible in evidence, and the remainder admissible, the objectionable portion cannot be reached by a general objection to the entire document, but the inadmissible portion must be specified.' (43 Cal.App.2d at p. 141, 110 P.2d at 468.) This reasoning controls the present case.
VI
The plaintiff claims that two instructions were improperly read to the jury:
'If weaker and less satisfactory evidence is offered by a party when it was within his power to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.' [BAJI (4th ed.) No. 30.]
'If you find that a party did not present evidence which was available to him which he naturally would be expected to present and which is not available to the other party, you may consider such failure in determining what inferences to draw from the evidence or facts is the case against him.' [BAJI (4th ed.) No. 30-A.]
Plaintiff does not contend that the instructions incorrectly state the law but rather that there was no evidence to which they apply and hence they prejudicially confused the jury. This is contrary to a reading of the record. The prime issue in this case as argued by the defense counsel was the lack of positive evidence of injury to plaintiff attributable to this accident and the weak nature of the evidence actually produced. The following are a few examples argued by defense counsel to the jury:
It has often been held that the giving of BAJI 30, although there is no evidentiary basis, is not prejudicial error. (See, e. g., Patterson v. Delta Lines, Inc. (1956) 147 Cal.App.2d 160, 163, 304 P.2d 842; Hawke v. Burns (1956) 140 Cal.App.2d 158, 165, 294 P.2d 1008.) The rationale given for the non-prejudicial effect of the wrongful giving of this instruction is that by its terms the jury is instructed to apply it only when they have decided the offering party could have offered better evidence but did not.
1. The extent of plaintiff's loss of income was an important issue in the case. Defense counsel during cross-examination brought out the fact that plaintiff's wife, who earlier had testified to earnings from family records, had actually testified from a recapitulation of the records and that the original pages had been thrown away. During the cross-examination of the plaintiff, he testified that many of his records had been lost and he could only produce an income tax return for 1965, although the [88 Cal.Rptr. 141] lawsuit had been pending for over three years and his attorney stated it would take thiry days to obtain a copy of returns for other years from the Internal Revenue Service.
2. Plaintiff had been involved in another auto accident approximately one month prior to the one involved this suit. His physician testified that he was discharged 'completely without symptoms' on April 7, 1965 or five days before the accident involved in this suit. The doctor was served with a subpoena asking him to produce records relating to the prior accident. He explained their absence as follows:
'Q Now, I served you with a subpoena, also, didn't I, for the production of your records relating to the accident of March 19, 1965?
'A That is correct.
'Q Did you bring those records with you?
'A I did not.
'Q Did you keep any record of Mr. Hrnjak's condition resulting from the accident of March 19, 1965?
'A As far as I know, I did not.
'Q You didn't keep any?
'A As far as I know, I did not.
'Q Did you prepare any?
'A As far as I know, I did not.
'Q Did you sign anything?
'A In regard to the accident of March 19?
'Q March 19, 1965.
'A My memory has been refreshed and I did sign something.
'Q Didn't you keep a copy of the material that you signed?
'A I would like to have had, yes.
'Q Didn't you make office notes of his visit?
'A I am sure I did.
'Q Well, did you or didn't you keep any records?
'A I can't answer that really.
'Q Why?
'A Because I couldn't find them or, at least, my personnel couldn't find them.
'Q Did you personally look for the records?
'A I personally looked myself.
'Q When was the last time you saw them?
'A I can't remember.'
3. Plaintiff called as a witness the employer for whom he had worked until February of 1964. However, neither his former employer for whom he worked shortly before the accident of April 12, 1965, nor his partner with whom he worked after the accident was called to testify. Each could have been called by plaintiff to produce stronger and more positive evidence in the form of records and disinterested testimony as to plaintiff's earnings and work record as well as his expressions of pain. Plaintiff testified that on one occasion while at work with his partner after the accident he had pain and stated: 'I laid down on a piece of plywood and he [his partner] said, 'don't do the work, don's kill yourself'.' It was proper to comment upon plaintiff's failure to produce these witnesses.
On this record it was correct to give the two instructions to which objection has been made.
The judgment is affirmed.
KINGSLEY, Acting P. J., and DUNN, J., concur.
The California Supreme Court in Sabella v. Southern Pac. Co. (1969) 70 Cal.2d 311, 315, 74 Cal.Rptr. 534, 449 P.2d 750, an F.E.L.A. case, characterized Eichel differently than Justice Harlan. It stated that the admissibility of this evidence was governed by Evidence Code, section 352 rather than a strict exclusionary rule such as Justice Harlan believed Eichel created. Thus the California Supreme Court's interpretation of Eichel is consistent with the direct holding in Garfield v. Russell, supra.
'The amount of such damages shall not be reduced by the receipt of payment by him for any part of his loss from a source wholly independent of the defendants. There has been evidence in this case that Plaintiff has received payment from the Automobile Club of Southern California, his own insurance company, toward his medical expense and some disability payments from Pennsylvania Life Insurance Company, also his own insurance company. These payments are not to be deducted by you in arriving at the amount of damages suffered by the Plaintiff as a result of the accident.
'Said payments are to be considered by you for the limited purpose of determining Plaintiff's motive in seeking medical help and his credibility as a witness.'
'A The major thing that he complained of, of course, was abdominal pain, pain radiating down the leg, inner side of the thigh, intermittent dizziness.
'Q Did you come to an opinion as to what caused the dizziness?
'A My opinion as to what this was--I was concerned with the fact he may have had some trauma to the ear.
'Q How do you call that?
'A Labyrinthitis.
'Q What is traumatic labyrinthitis?
'MR. COSTANZO: Counsel has traumatic labyrinthitis. May we approach the bench?
'(Whereupon discussion was had between Court and counsel at the bench, out of the hearing of the jury, which was not reported.)
'Q BY MR. MOACANIN: Do your records indicate any trauma; is that reflected in your records?
'A Trauma to the ear is reflected.
'Q Can you tell the jury a little more what you mean by that?
'A Because of Mr. Hrnjak's intermittent nausea, vomiting, loss of hearing, he was referred to a Dr. Gundrum for consultation and this was taken on October 12 and 18, at which time Dr. Gundrum, who is an E & T specialist, examined Mr. Hrnjak and his examination revealed
'MR. DAVIES: Objection as not responsive.
'THE COURT: Objection sustained. Confine your testimony to what you, yourself, know or examined or what the record reveals.
'THE WITNESS: This is what I am reading from, my records.
'THE COURT: If you are reading from the records, go ahead and read.
'THE WITNESS: He was seen by Dr. Gundrum October 12 and 18, 1965. Dr. Gundrum's examination revealed he had suffered a bilateral hearing loss and bilateral traumatic labyrinthitis.
'MR. DAVIES: May we approach the bench?
'THE COURT: All right.
'(Whereupon discussion was had between Court and counsel at the bench, out of the hearing of the jury, which was not reported.)
'THE COURT: Let's go back on the Record to the question regarding Dr. Gundrum, G-U-N-D-R-U-M.
'Would you go back and read the first question?
'(Whereupon reporter reads question referred to.)
'THE COURT: Stop there.
'Strike everything after that, when he was referred to Dr. Gundrum, and resume your examination after the recess into anything you wish to go into.'
'A Yes.
'Q And you considered his report, did you not?
'A Yes.
'Q Now, Doctor, did Dr. Gundrum
'MR. DAVIES: I object to any reference to Dr. Gundrum unless it is established that he relied upon the report.
'THE COURT: I think the objection is well-taken.
'MR. MOACANIN: All right.
'Q And did Dr. Gundrum agree or disagree with you?
'MR. DAVIES: Objection, Your Honor. This is an oblique way to get into evidence material that is, otherwise, probably excludable.
'THE COURT: I don't believe you can inquire as to Dr. Gundrum's report except to the extent that Dr. Watson used it or relied upon it.
'MR. MOACANIN: He said he relied upon it.
'MR. DAVIES: He did not. My memory of Dr. Watson's
'THE COURT: You proceed and ask some questions and we will find out the extent.
'Q BY MR. MOACANIN: Dr. Watson, you read Dr. Gundrum's report, did you not?
'A Yes.
'Q You considered it at the time you wrote your report?
'A I considered everything I read.
'Q And you relied to a certain extent on what he said?
'A No.
'MR. MOACANIN: Well, now, I want to approach the Bench, Your Honor.
'THE COURT: All right.
'(Whereupon discussion was had between Court and counsel at the bench, out of the hearing of the jury, which was not reported.)'
'THE COURT: I will strike the question without waiting for the objection.
'MR. DAVIES: For the Record, I will object.
'THE COURT: I don't think this has any materality to the case whatsoever, Mr. Moacanin, none whatever. Whether it is good practice for an attorney or anyone else to send him I will rule it objectionable and out of order at this time.
'No question is pending.
'MR. DAVIES: Nothing further.
'MR. COSTANZO: Nothing further.
'THE COURT: You may be excused.'