Opinion
G053280
08-24-2017
MALCOLM JOHNSON, Plaintiff and Appellant, v. SHAYAN SAFAI, Defendant and Respondent.
Niddrie Addams Fuller, John S. Addams; and Case C. Barnett for Plaintiff and Appellant. Law Offices of Cleidin Z. Atanous and Cleidin Z. Atanous for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 30-2013-00637005) OPINION Appeal from a judgment of the Superior Court of Orange County, Gregory H. Lewis, Judge. Affirmed. Niddrie Addams Fuller, John S. Addams; and Case C. Barnett for Plaintiff and Appellant. Law Offices of Cleidin Z. Atanous and Cleidin Z. Atanous for Defendant and Respondent.
* * *
Defendant and respondent Shayan Safai rear-ended plaintiff and appellant Malcolm Johnson on the freeway and pushed his vehicle into the vehicle in front of him. Johnson filed this lawsuit, claiming he suffered injuries in the collision, including a herniated disc in his lower back that required fusion surgery. Safai conceded her negligence caused the collision, but disputed Johnson's claim he suffered a herniated disc and other injuries.
At trial, Safai called a biomechanical engineering expert who testified the relevant scientific data and crash tests established that the accident did not generate sufficient compressive forces to herniate a person's lower back disc. The expert explained that the seatbelt and airbags in Johnson's vehicle prevented the significant amount of forward flexion or bending required to herniate a disc. Johnson did not call a biomechanical expert. The jury returned a verdict in Safai's favor, finding her negligence was not a substantial factor in causing Johnson's alleged harm. Based on that verdict, the trial court entered judgment for Safai.
Johnson appeals, contending the trial court erred in allowing the biomechanical engineer to testify because (1) Johnson was not an average person subject to the expert's biomechanical analysis because he suffered from a congenital narrowing of the spinal canal that made him more susceptible to disc injuries, and (2) the expert's opinion that the accident could not cause a disc herniation was a medical opinion a biomechanical engineer was not qualified to give. We conclude the court did not abuse its discretion in allowing the expert testimony.
Johnson forfeited his first argument because he failed to raise the objection in the trial court. On the merits, Johnson's argument ignores the conflicting evidence on whether he had a congenital condition that made him more susceptible to disc injuries. Whether Johnson was an average person subject to the expert's biomechanical analysis therefore was a disputed fact for the jury to decide, and Johnson's one-sided view of the evidence does not establish the trial court abused its discretion by admitting the expert's testimony.
Johnson's second argument also fails because our review of the biomechanical expert's testimony shows that he did not provide a medical opinion. The expert based his analysis and opinion on the scientific data and research about the forces necessary to herniate a disc in a person's lower back. The expert acknowledged he was not a medical expert, he was not qualified to give a medical opinion, and he deferred to medical experts on such matters.
Finally, Johnson contends we must reverse the judgment because the jury's verdict awarding him no damages for the separate neck and shoulder strains he suffered is not supported by substantial evidence. As more fully explained below, this argument misconstrues the substantial evidence standard of review. Unless it acts arbitrarily, a jury may reject any evidence it determines lacks credibility, even if the evidence is uncontradicted. By awarding Johnson no damages, the jury necessarily rejected his evidence on damages. Johnson points to nothing in the record to show the jury acted arbitrarily in doing so or that there was any evidence that required a verdict in his favor.
For the foregoing reasons, we affirm the judgment.
I
FACTS AND PROCEDURAL HISTORY
A. The Accident and Johnson's Medical Treatment
In June 2012, Johnson was driving on the 405 freeway in Costa Mesa when he was involved in a multiple-vehicle accident. As Johnson slowed down to avoid traffic in front of him, Safai rear-ended Johnson, pushing his vehicle into the vehicle in front of him. Johnson saw Safai's vehicle approach in his rearview mirror as he faced forward with his hands on the steering wheel and braced himself for the impact. Johnson's airbags deployed during the collision, but Safai's airbags did not. The insurers deemed both Johnson's and Safai's vehicles total losses.
At the accident scene, Safai asked Johnson if he was "okay," and he responded he was. Johnson's only visible injury was an abrasion on his lip from the airbag, and he declined treatment from the paramedics. Later that night, Johnson experienced some pain in his neck and shoulders, but he did not have any pain in his lower back and he did not seek medical attention.
The next day, Johnson consulted with an attorney, explaining he did so because he had a bad experience when he was unrepresented after an earlier motorcycle accident. Johnson told the attorney he had pain in his neck and shoulders, but he did not mention any lower back pain. The attorney referred Johnson to Dr. Phillips, a back specialist, who recommended physical therapy. Johnson had no history of back pain before the accident.
During physical therapy, Johnson began to experience pain in his lower back, but he did not complain to either Dr. Phillips or his physical therapist about pain in his legs, radiating pain, tingling, or any other symptoms suggesting he suffered from a pinched or compressed nerve. At Dr. Phillip's recommendation, Johnson underwent an MRI in August 2012. According to Dr. Phillips, the MRI revealed a herniated disc at L5-S1 that made Johnson a candidate for back surgery. Johnson declined to have surgery, and instead received an epidural injection that relieved his pain for approximately one month.
Over the next several months, Johnson suffered sporadic back pain. Seeking nonsurgical options to relieve his pain, in June 2013, Johnson consulted with Dr. Fardad Mobin, a neurosurgeon, at the recommendation of a family friend and his attorney. Dr. Mobin performed two different procedures. First, he tried facet blocks, which involve burning nerve endings that grow back. Next, Dr. Mobin performed a neuroblation, which involves burning nerves that do not grow back. Each procedure temporarily relieved Johnson's pain for a few months, but the pain eventually returned.
In April 2014, Dr. Mobin ordered a second MRI, which showed Johnson's condition was progressing. Dr. Mobin recommended a discogram, a diagnostic procedure where a doctor injects a contrast dye into the disc. In a healthy disc, the dye remains in the disc's nucleus, but in an injured disc, the dye seeps out along the path of the injury and causes the patient pain. According to Dr. Brian King, the neuroradiologist who performed the discogram on Johnson in May 2014, the procedure confirmed a disc injury to Johnson's back at L5-S1. In June 2014, Dr. Mobin performed fusion surgery on Johnson to correct the herniated disc. B. The Trial Court Proceedings
In March 2013, Johnson filed this lawsuit alleging the accident caused his herniated disc and generalized pain in his neck, shoulders, and lower back. Safai did not dispute her negligence caused the accident and she compensated Johnson for his vehicle damage, but Safai disputed that the accident caused Johnson's herniated disc and that he suffered any compensable injury in the accident.
Safai retained Judson Welcher, Ph.D., a biomechanical engineer and accident reconstructionist, to testify that the forces involved in the accident were not strong enough to cause a herniated disc in the lower back at L5-S1. Johnson did not designate a biomechanical expert. Rather, he moved in limine to exclude "all areas of [Welcher's] testimony, including [testimony about] the velocity of the accident and the medical causation of injuries sustained by [Johnson]." Johnson argued only a licensed medical expert could testify about causation, not a biomechanical engineer. At the hearing, Johnson argued Welcher's testimony should be excluded because his professional experience studying automobile accidents and the effects on the human body did not include a chain reaction rear-end and front-end accident like the one at issue here. According to Johnson, Welcher lacked the basis for an opinion in this case because his experience was limited to either rear-end accidents or front-end accidents. The trial court denied the motion, concluding Johnson's arguments about Welcher's experience could be explored on cross-examination, but did not require the court to exclude his testimony.
Johnson's written motion argued a variety of other grounds that he does not assert on appeal.
At trial, Johnson testified about the accident, his injuries, and the treatment he received. He also called Dr. Mobin and Dr. King to testify about Johnson's injuries and the treatment they provided, including the spinal fusion surgery. Dr. Mobin and Dr. King both opined the accident caused Johnson's herniated disc rather than any age-related degenerative condition relating to the 42-year-old Johnson. To further support this testimony, Johnson called Dr. Orlando Micheli, a board certified diagnostic radiologist, who echoed Dr. Mobin's and Dr. King's testimony about the cause of the herniated disc and also testified that Johnson was born with a narrow spinal canal that made him more susceptible to disc injury.
Safai called Dr. Nitin Bhatia, a board certified orthopedic surgeon specializing in spinal surgery, who examined Johnson's medical records and also physically examined Johnson in February 2014 before his fusion surgery. Dr. Bhatia testified Johnson's August 2012 MRI did not show a disc herniation, but rather only mild degenerative disc disease that was typical of someone Johnson's age, and Johnson's April 2014 MRI showed no significant change. Dr. Bhatia explained his examination of Johnson revealed no signs of neurological impairment or nerve irritation, damage, or impingement, and Johnson's complaints of pain were consistent with degeneration rather than a traumatic event. Finally, Dr. Bhatia opined the accident did not cause a herniated disc in Johnson and the fusion surgery was unnecessary because neither the MRI's nor the physical examination revealed a herniated disc or pinched nerve.
Safai also called Dr. Richard Rhee, a board certified diagnostic radiologist, who reviewed Johnson's two MRI's and other medical records. Dr. Rhee testified the August 2012 MRI showed degenerative changes and bone spurs consistent with deterioration caused by wear and tear over time, not the accident or any other trauma, and the April 2014 MRI showed no changes. Dr. Rhee explained that a discogram is not a useful diagnostic procedure for confirming injury because it is outdated and provides a high degree of false positives. Moreover, Dr. King failed to perform the procedure properly because he admittedly did not follow standard practices and failed to make the injection in the disc's center. Finally, Dr. Rhee opined Johnson did not have congenital narrowing of his spinal canal, but rather a spacious spinal canal.
Without further objection from Johnson, Safai called Welcher to testify as an expert witness. Welcher testified he had 25 years of experience as a biomechanical engineer and accident reconstructionist after receiving a bachelor of science degree in mechanical engineering and a masters and Ph.D. in biomedical engineering. He wrote his master thesis on the effects of rear-end and frontal impacts on the human body, and his doctoral dissertation on the biomechanics of the lumbar spine. He has conducted over 1,000 crash tests to study the impacts of auto accidents on the human body and he has written 25 peer reviewed scientific publications on the topic.
Welcher testified he reviewed the accident report, the depositions of the parties and the medical experts, Johnson's medical records, numerous photographs of the vehicles involved in the accident, and the repair estimates describing the damage to the vehicles. He researched the vehicles involved in the accident to identify their weight, the details of their construction, and the available crash test data. He also located undamaged exemplars of each vehicle to further identify their characteristics and determine how they would respond to the accident. Finally, he reviewed over 50 scientific publications on the impacts rear-end and frontal collisions have on the human body, and the lumbar spine in particular.
From this data, Welcher determined the speed Safai was traveling when she collided with Johnson's vehicle, the speed Johnson's vehicle was traveling both when Safai collided with him and he collided with the vehicle in front of him, and the speed of the vehicle in front of Johnson when he collided with it. Based on these speeds and the relative weight and other characteristics of the vehicles, Welcher determined the "delta-v" for each collision. He explained delta-v is the change in velocity, which reveals how a collision affects a vehicle and measures the amount of force the collision caused. From these numbers, he concluded the delta-v Johnson experienced during the collision with Safai fell between 8.2 and 10 miles per hour, and the delta-v he experienced from the collision with the vehicle in front of him was between 9 and 12 miles per hour. According to Welcher, these delta-v numbers subjected Johnson's lower back to a maximum of 213 pounds of compressive force when he collided with the vehicle in front of him and much less force when Safai initially collided with Johnson.
Welcher testified that for a traumatic event to cause a herniated disc in a person's lower back, the person must experience extreme forward bending and some form of axial compression on the spine, such as when a person bends over and contracts his or her muscles to pick up a heavy object. According to Welcher, those forces are not present in a rear-end collision because a person is pushed back into the seat rather than bent forward when his or her vehicle is struck from behind. In a front-end collision, a person may bend forward as his or her body continues moving while the vehicle stops, but the amount of forward bend that occurs is not sufficient to herniate a disc. Moreover, properly functioning seatbelts and airbags generally prevent any significant forward bending and Johnson testified he was wearing his seatbelt and his airbag deployed during the accident.
Based on this information, Welcher concluded the accident did not generate enough force to cause a herniated disc. He explained other activities in which Johnson testified he regularly engaged generated more force on his lower back than this accident. For example, when Johnson lifted two cases of water, as he testified he regularly did for his wife, it generated 5 to 10 times as much compressive force on his lower back as generated by Johnson's collision with the vehicle in front of him. Johnson did not object to any of this testimony.
Based on Safai's concession her negligence caused the accident, the special verdict the parties prepared asked the jury to answer two questions: (1) "Was [Safai's] negligence a substantial factor in causing harm to [Johnson]?" and (2) "What, if any, are the total amount of damages you find for [Johnson]?" The second question identified several categories of damages, including past and future medical expenses, future loss of earnings, and past and future noneconomic damages. The jury answered the first question in the negative and awarded Johnson no damages.
The trial court entered judgment for Safai based on the jury's verdict and Johnson moved for judgment notwithstanding the verdict and a new trial. The court denied both motions and this appeal followed.
II
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Allowing Testimony From Safai's Biomechanical Engineering Expert
Johnson contends the trial court erred in allowing Welcher to testify because, as a biomechanical engineer, Welcher was not qualified to offer a medical opinion about the specific cause of Johnson's injury. According to Johnson, only a "licensed medical expert" may offer an opinion about the specific cause of a party's injury. Johnson misconstrues the governing law and Welcher's testimony.
"'Evidence Code section 801 qualifies a matter as the proper subject for expert testimony if it is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." That is not to say, however, that the jury need be wholly ignorant of the subject matter of the expert opinion in order for it to be admissible. [Citation.] Rather, expert opinion testimony "'will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when "the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness."'"'" (People v. Edwards (2013) 57 Cal.4th 658, 709.)
"A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates." (Evid. Code, § 720, subd. (a).) "There are no hard and fast rules for expert qualification. The determinative issue is whether the witness has sufficient knowledge, skill or experience in the field so that his or her testimony would be likely to assist the jury in its search for the truth." (Wegner et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter Group 2016), ¶ 8:733, p. 8C-129 (hereinafter, Wegner) citing Mann v. Cracchiolo (1985) 38 Cal.3d 18, 37-38, overruled on other grounds in Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 543.) "Whether a particular person has sufficient expertise to testify as an expert witness depends upon the facts of the particular case, the questions propounded to the witness, and the witness' specific qualifications." (Wegner, at ¶ 8:734, p. 8C-129 citing People v. Davis (1965) 62 Cal.2d 791, 801, & People v. King (1968) 266 Cal.App.2d 437, 445.)
Finally, an expert's opinion must be based on the type of information on which an expert may reasonably rely and that information must support the reasons for the expert's opinion and cannot be based on speculation. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771-772. (Sargon).) The trial court performs a gatekeeping function to ensure these requirements are met. As the gatekeeper, the court may not choose between competing expert opinions or decide which opinion is more persuasive. Rather, the court's role "is simply to exclude 'clearly invalid and unreliable' expert opinion." (Id. at p. 772.)
We review the trial court's decision to admit or exclude expert testimony for abuse of discretion. (Sargon, supra, 55 Cal.4th at p. 773.) "'An abuse of discretion may be found only if "'no judge could have reasonably reached the challenged result. [Citation.] "[A]s long as there exists 'a reasonable or even fairly debatable justification, under the law, for the action taken, such action will not be . . . set aside . . . .'"'"' [Citation.] We may not substitute our judgment for that of the trial court, and provided the trial court properly applied the law, we may reverse the trial court's exercise of its discretion only when the facts required the trial court to reach a different result." (McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1124.)
We see no abuse of discretion in the trial court's decision to admit Welcher's testimony. First, although automobile accidents fall within the common experience of many people, the forces generated by a particular accident and the forces required to herniate a disc in a person's lower back are sufficiently beyond common experience and therefore the court reasonably could conclude expert testimony on the subject would assist the trier of fact. No reported California case has ruled upon the admissibility of biomechanical testimony, but many cases have allowed it without discussion. (See, e.g., People v. Duenas (2012) 55 Cal.4th 1, 17-18; Romine v. Johnson Controls, Inc. (2014) 224 Cal.App.4th 990, 998; DePalma v. Rodriguez (2007) 151 Cal.App.4th 159, 164-165; Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1153; Doupnik v. General Motors Corp. (1990) 225 Cal.App.3d 849, 864-865; Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53, 61-62.)
In his appellate briefs, Johnson concedes that he "does not dispute that biomechanical engineers can testify about the forces an accident puts on a body." Indeed, Johnson cites several out-of-state decisions that have allowed expert testimony from biomechanical engineers limited to the forces a particular accident generated and the types of injuries those forces can cause. (See, e.g., Berner v. Carnival Corp. (S.D.Fla. 2009) 632 F.Supp.2d 1208, 1213; Bowers v. Norfolk Southern Corp. (M.D.Ga. 2007) 537 F.Supp.2d 1343, 1377; Smelser v. Norfolk Southern Railway Co. (6th Cir. 1997) 105 F.3d 299, 305, abrogated on other grounds in Morales v. American Honda Motor Co. (6th Cir. 1998) 151 F.3d 500, 514.)
Nonetheless, Johnson contends Welcher's testimony did not help the jury in this case and the trial court should not have admitted it because the jury had to decide the impact this particular accident had on Johnson, not the impact the accident might have had on an average person. According to Johnson, Welcher's testimony misled the jury because "there was evidence Johnson had a narrow spinal canal, which made him more susceptible to a disc injury."
Johnson forfeited this argument because he did not raise it on his motion in limine nor did he object on this ground during the trial. (People v. Morris (1991) 53 Cal.3d 152, 190, disapproved on other grounds in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1 [to preserve evidentiary objection, party must raise specific legal ground for excluding the evidence during trial or on motion in limine]; Boston v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 950 [same].) The argument also fails on the merits because Safai offered expert testimony that Johnson did not have a congenital narrowing of his spinal canal, but rather a spacious spinal canal. Whether Johnson was an average person subject to Welcher's biomechanical analysis therefore was a disputed fact for the jury to decide, and Johnson's one-sided view of the evidence fails to establish an abuse of discretion in admitting Welcher's testimony.
Moreover, given the conflicting evidence on whether Johnson was a typical person to whom Welcher's testimony would apply, it was incumbent upon Johnson to cross-examine Welcher and show his analysis did not apply to a person who was more susceptible to disc injury based on a congenital or preexisting condition. Johnson posed no such questions to Welcher, and therefore failed to provide a basis for the jury to conclude Welcher's analysis did not apply to Johnson.
Next, Johnson does not dispute that Welcher was qualified to testify about the forces generated in this particular accident and the forces necessary to herniate a disc in a person's lower back. Instead, Johnson contends Welcher's testimony crossed the line between permissible general causation testimony about the accident and improper specific causation testimony about Johnson and his particular injury. According to Johnson, only a licensed medical expert can provide a medical opinion about the cause of his injury. Johnson misconstrues Welcher's testimony.
Although Johnson's mischaracterization of Welcher's testimony is sufficient to affirm the judgment, we also note Johnson misstates the law regarding the qualifications necessary to provide a medical opinion. The Supreme Court recognizes that "[q]ualifications other than a license to practice medicine may serve to qualify a witness to give a medical opinion. (People v. Villarreal (1985) 173 Cal.App.3d 1136, 1142 ['Because of the dramatic growth of diverse interdisciplinary studies in recent times, often individuals of different nonphysician professions are called upon to give medical opinions or at least opinions involving some medical expertise']; see People v. Fierro (1991) 1 Cal.4th 173, 224[, overruled on other grounds in People v. Thomas (2012) 54 Cal.4th 908, 941]; Brown v. Colm (1974) 11 Cal.3d 639, 645 [referring to an "unmistakable general trend in recent years ... toward liberalizing the rules relating to the testimonial qualifications of medical experts'].)" (People v. Catlin (2001) 26 Cal.4th 81, 131.)
Welcher did not provide a medical opinion or conduct a medical analysis. Instead, he based his analysis entirely on the forces generated by the accident and the forces required to herniate a disc in a person's lower back. He offers no opinion about whether Johnson actually has a herniated disc or the cause of any medical condition Johnson has. Johnson points to Welcher's testimony that there was no chance the forces created by this accident were sufficient to herniate a disc. According to Johnson, by testifying the accident could not cause a herniated disc, Welcher necessarily offered a medical opinion. We disagree.
Based on our conclusion Welcher did not improperly offer a medical opinion, we need not address Safai's contention that Johnson's motion in limine failed to preserve this issue for appeal without an additional objection during Welcher's testimony.
Johnson ignores Welcher's clarifying testimony that there are no absolutes in science and that anything is theoretically possible. Welcher simply testified that the scientific research in this area showed that a herniated disc in the lower back does not occur in this type of collision because the required forces are not present. Welcher also testified that he is not a medical doctor, he is not qualified as a medical expert, he would not offer any medical opinions, and he defers to medical professionals when it comes to medical opinions. When viewed in its entirety, Welcher's testimony makes clear he did not provide expert medical testimony.
Finally, Johnson does not challenge the scientific studies and other information Welcher relied on to determine the forces generated by the accident and the forces required to herniate a disc in a person's lower back. We see nothing to suggest Welcher's opinions were clearly invalid or unreliable because of the material on which he relied. (See Sargon, supra, 55 Cal.4th at p. 772.) B. The Jury Was Not Required to Award Johnson Damages for Any Other Injuries
Johnson contends we must reverse the judgment because the jury failed to award him damages for the strains to his neck and shoulders that he suffered apart from his herniated disc. According to Johnson, the verdict awarding him no damages for these other injuries "was not supported by substantial evidence" even if there was no error relating to the disc injury. Johnson misconstrues the governing standard of review.
The substantial evidence standard governs our review of the jury's factual findings. (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1245 (Pope).) Under that standard, "'we "view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor."'" (Ibid.) The question is not whether substantial evidence supports the position the appellant presented to the jury, but strictly whether substantial evidence supports the findings the jury made. (Ibid.) Indeed, we must affirm if substantial evidence supports the jury's findings even if substantial evidence also supports the findings the appellant urged the jury to adopt at trial and we would have made those alternative findings if we had served as the trier of fact. (Clark v. Superior Court (2011) 196 Cal.App.4th 37, 47; Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 957-958.)
Significantly, the substantial evidence standard precludes us from reweighing the evidence or reassessing witness credibility. (Pope, supra, 229 Cal.App.4th at p. 1246.) "Uncontradicted testimony in appellant's favor does not necessarily conclusively establish the pertinent factual matter: The trier of fact is free to reject any witness' uncontradicted testimony; and the court of appeal will affirm so long as the rejection was not arbitrary." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2016) ¶ 8:54, p. 8-26 citing Ortzman v. Van Der Waal (1952) 114 Cal.App.2d 167, 170-171; see In re Marriage of Boswell (2014) 225 Cal.App.4th 1172, 1175 ["The trial court was not required to believe [appellant] and, sitting as trier of fact, had the power and the right to not do so, just as it had the power and right to believe [respondent]. [Citation.] We do not judge credibility on appeal"].)
Here, the jury found Safai was not a substantial factor in causing the harm Johnson claimed. That finding necessarily includes the finding Johnson failed to meet his burden that Safai caused his claimed damages, including any damages relating to his neck and shoulders. The question therefore is not whether substantial evidence supports the finding that Johnson failed to meet his burden. Indeed, the substantial evidence standard cannot show a lack of evidence. The question we must decide is whether Johnson points to any evidence in the record that required the jury to find Safai caused Johnson's neck and shoulder strains and award him a specific amount for those injuries. He did not. As stated above, the jury was free to find Johnson's evidence lacked credibility, and he fails to show the jury acted arbitrarily in doing so.
Johnson does not cite any evidence showing the medical bills or expenses he incurred to treat his strained neck and shoulders. Rather, he merely cites testimony by Safai's medical experts. First, Johnson cites testimony by Dr. Bhatia that Johnson "'may have had'" some muscle strains in his spine and shoulders, and the reasonable medical expenses for those types of injuries would be approximately $4,000 to $5,000. Testimony that Johnson may have suffered these injuries did not require the jury to award damages for them in the face of the jury's finding that Safai did not cause Johnson's disc injury. Moreover, and more significantly, Johnson does not cite any evidence to show he incurred these expenses to treat his neck and shoulder strains. This testimony is merely a hypothetical estimate of the expenses for these alleged strains; it does not establish he actually incurred any expenses for these injuries.
Johnson also cites Dr. Rhee's testimony in response to a hypothetical question that Johnson's counsel posed. Specifically, Dr. Rhee testified that assuming Johnson did not have a preexisting back injury and the onset of his back pain was in close temporal proximity to the accident, a likely connection exists between the accident and the onset of the symptoms. Johnson fails to explain how this testimony required the jury to find Safai caused his alleged neck and shoulder strains and to award him damages for those injuries.
Finally, in his reply, Johnson cites evidence that the force of the accident caused his airbag to deploy, he experienced neck and shoulder pain following the accident, and he received physical therapy for that pain. Johnson also cites to closing arguments, where Safai's counsel stated the amount of damages the jurors should award if they find Safai caused any soft tissue injuries to Johnson. Johnson waived his argument because he failed to raise it in his opening brief; raising it in his reply forfeits the issue. (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1410 ["'[a]rguments presented for the first time in an appellant's reply brief are considered waived'"].) Nonetheless, none of this evidence required the jury to award Johnson anything.
Johnson also claims "[o]ne of the defense medical experts testified 'to a reasonable degree of medical certainty, the crash' caused Johnson's injuries requiring all his treatment, including the physical therapy for the neck and shoulder pain." The testimony Johnson cites, however, is from his own expert, Dr. Mobin, and the cited pages say nothing about physical therapy for the neck and shoulder pain. --------
III
DISPOSITION
The judgment is affirmed. Safai shall recover her costs on appeal.
ARONSON, ACTING P. J. WE CONCUR: FYBEL, J. IKOLA, J.