Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. RG04-179972
RIVERA, J.
In this personal injury action, Adrian J. Kruse appeals from a judgment following a jury verdict in favor of defendant George Nikolaou Charos. She contends that the trial court erred in denying her motion to exclude or limit the testimony of a defense expert, and in permitting defense counsel to introduce evidence of her prior accident at a Long’s Drug Store. She also argues that the court abused its discretion in failing to consider the disparity in financial resources between the parties in awarding Code of Civil Procedure section 998 (section 998) costs to defendant. We affirm.
I. FACTUAL BACKGROUND
The parties were involved in an auto accident on the afternoon of January 6, 2003. The accident occurred on Potter Street as the traffic merges with Ashby Avenue and Interstate 80 eastbound in Berkeley. The traffic was slow that day; “[i]t was stop-and-go.” As Kruse was attempting to merge onto Ashby Avenue, she came to a stop and Charos, driving the car directly behind her, hit Kruse’s Volvo. Charos had been about a half a car length behind Kruse. Charos described the collision as a small tap, while Kruse described it as “a pretty good knock” and a “pretty hard whack.” Kruse got out of her car and approached Charos. Kruse testified that she was limping and that Charos told her that he was only traveling at three miles per hour and that he had not caused any damage to her car or to her foot.
Officer Black responded to the scene and found no damage to the Honda driven by Charos. He also found no damage to the Volvo, though Kruse indicated that there was some damage to the bumper. Black opined that the damage could not have been caused by the accident as it was located above the foremost part of the Honda where the two vehicles would have come into contact. Kruse complained of neck pain. She was quite upset and told Black that she had persistent pain in her neck for years. She made no complaints of back, foot or toe pain. Kruse drove away from the accident scene in her car.
Kruse was involved in a prior accident in 1998 that required her to have several surgeries including neck and hand surgery. At the time of trial, she was still disabled. After the car accident with Charos, she testified that she had neck, back, and foot pain. She did not see her doctor, however, until six weeks after the accident.
Dr. Ravani, an expert in injury biomechanics, testified that it was not reasonably probable that Kruse would have sustained the injuries to her neck, low back and foot from the forces generated by the car accident.
The jury returned a verdict finding that Charos was negligent but that his negligence was not a substantial factor in causing harm to Kruse. Following the trial, Charos filed a memorandum of costs. Kruse moved to tax costs, contending that the court should exercise its discretion to deny Charos enhanced costs under section 998 because imposition of those costs would force her into bankruptcy. The court granted the motion in part disallowing certain costs that were not substantiated or recoverable, but denied the motion insofar as it asked the court to consider her financial condition. The court thus awarded Charos $73,503.66 in costs.
II. DISCUSSION
A. Motion to Exclude Ravani’s Testimony
Kruse moved in limine to exclude the testimony of Ravani, arguing that his opinions did not satisfy the Kelly/Frye requirements. She argues that the court should have excluded Ravani’s testimony because his testimony does not meet the three-pronged test for admissibility of expert opinions set forth in Kelly.
People v. Kelly (1976) 17 Cal.3d 24 (Kelly); Frye v. United States (D.C.Cir. 1923) 293 F. 1013, superseded by the Federal Rules of Evidence (28 U.S.C.) as noted in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 585-589. Since Daubert, the California Supreme Court has reaffirmed Kelly’s adoption of the former standard in Frye, which is now known simply as the Kelly rule. (People v. Leahy (1994) 8 Cal.4th 587, 591-592 (Leahy).)
Under Kelly, the proponent of the evidence must establish in a trial court evidentiary hearing that: (1) the technique has gained general acceptance in the field; (2) the witness testifying about the technique and its application is properly qualified as an expert; and (3) correct scientific procedures were followed in the particular case. (Kelly, supra, 17 Cal.3d at p. 30; People v. Venegas (1998) 18 Cal.4th 47, 78.) Kelly applies only to new scientific techniques. (Leahy, supra, 8 Cal.4th at pp. 604-605.)
Here, Charos argued at the hearing on the in limine motion that Ravani would not be testifying about a new scientific technique and, hence, no purpose would be served by an Evidence Code section 402 hearing. Counsel for Kruse agreed that a hearing was unnecessary, indicating that Charos could establish that the evidence was admissible under Kelly without a hearing. The court ruled that Ravani’s testimony was admissible and that he could opine on the probability the forces in the collision caused the claimed injuries.
Kruse’s argument on appeal that the court abused its discretion in allowing Ravani to testify without first determining whether Ravani’s opinions as a biomechanical engineer had gained general acceptance is unavailing. As the trial court found, Charos’s opposition to the motion demonstrated that Ravani’s expertise was in an area of biomechanics having scientific acceptance, and that it was within his realm of expertise to testify about the probability of injury from the type of collision that occurred. His curriculum vitae and testimony established that he had a Ph.D. in mechanical engineering from Stanford University, with extensive course work and training in the areas of kinematics and dynamics as well as force and stress analysis. Since 1987, he had been a professor in the Department of Mechanical Engineering at the University of California, Davis. He also taught in the graduate program in biomedical engineering, and in the more recently developed program of forensic sciences engineering. In addition, he was a consultant in the area of accident reconstruction and had numerous publications relating to that topic. He had testified as an expert in biomechanical analysis over 120 times. On this record, and inasmuch as his testimony did not involve a new scientific method, a Kelly hearing was not required. (Leahy, supra, 8 Cal.4th at pp. 604-605.)
Kruse’s reliance on People v. Dellinger (1984) 163 Cal.App.3d 284 is misplaced. There, the court determined that the proffered scientific techniques were new and, hence, the Kelly test was not met. (Dellinger, at pp. 292-296.) The court concluded that an experiment conducted by a biomechanical engineer utilizing an anthropomorphic dummy to demonstrate a fall down a flight of stairs and a finite element analysis based on that experiment were unreliable because there was an insufficient showing that she used acceptable procedures for her techniques. (Id. at pp. 293-296.) “[W]ithout corroboration on the reliability of the techniques or the acceptability of the procedures, her application of general principles of biomechanics to this specific situation involving a child’s fall is insufficient for admissibility.” (Id. at p. 295.) The court, however, noted that its holding did not foreclose admission of a biomechanical engineer’s expert opinion on the amount of force needed to sustain an injury if Kelly requirements were met. (Dellinger, at p. 296.) The court explained that it was not evaluating the legitimacy of the field of biomechanics. (Id. at p. 296, fn. 2.) “The field of biomechanics was not on trial here; only the reliability of the two procedures employing biomechanical principles used by Dr. Ward.” (Ibid.)
Moreover, contrary to Kruse’s argument, the issue of injury causation is not the “exclusive province of medical doctors.” Our Supreme Court has noted the trend of the law to reject any strict requirement that only medical doctors are qualified to testify on the causes of injury: “Qualifications 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’]; [citations].)” (People v. Catlin (2001) 26 Cal.4th 81, 131-132 [rejecting claim that a clinical toxicologist with a Ph.D. in physiology and pharmacology was unqualified to testify as to medical causation issues because he was not a medical doctor].)
Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, on which Kruse relies, is also inapposite. That case does not stand for the proposition that only a medical doctor can testify about causation. Jones simply held that “in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony.” (Id. at p. 402.) Thus, in order to prove that the defendant’s drug caused the plaintiff’s cancer, the plaintiff was required to proffer evidence, by expert testimony, that there was a reasonably probable causal connection between the defendant’s product and her cancer. (Id. at pp. 402-403.)
Here, unlike Dellinger, the court was not faced with evaluating a new scientific technique. Ravani’s testimony established that he was an expert on accident reconstruction and his testimony about whether the forces in an accident had the probability of causing Kruse’s injuries was within the realm of his expertise. The trial court did not abuse its discretion in permitting his testimony.
B. Evidence of Prior Accident at Long’s Drug Store
Kruse also contends that the court erred in permitting defense counsel to mention her prior accident at Long’s Drug Store. We conclude that Kruse waived any objection to defense counsel’s reference to the Long’s fall or prior accident.
In an in limine motion, Kruse requested that defense counsel be precluded from mentioning her prior lawsuit against Long’s Drug Store “whether in documentary form, testimony or argument.” She conceded that her prior spinal injury was relevant but sought to exclude the fact that she sued or that she settled the lawsuit. The court granted the motion.
Kruse complains that defense counsel mentioned the Long’s accident in argument and in cross-examining Kruse, her sister, and her primary physician. The trial court overruled Kruse’s relevance objection to defense counsel’s question to Kruse about the Long’s fall. Following the cross-examination of Kruse, her trial counsel took “exception” to the court’s allowing defense counsel to refer to the prior accident as the Long’s accident or the Long’s fall. Kruse, however, did not make any motion to exclude any further references to the Long’s accident and did not seek an admonition. In any event, at no point did Charos violate the court’s order by mentioning the prior lawsuit.
The court correctly ruled that evidence of the prior accident was relevant. The issue before the jury was whether Kruse’s injuries were caused by the vehicle collision with Charos. That she had suffered a significant prior injury to her neck was relevant to whether her current complaints were caused by Charos.
Kruse claims that defense counsel “insinuat[ed]” (emphasis omitted) that Kruse sued Long’s by his repeated references to the accident. She notes that a juror posed a question, “ ‘Did she sue Longs?’ ” for the court to ask Kruse, thus suggesting that defense counsel had, by innuendo, succeeded in getting the jury to think that she had sued Long’s. We cannot conclude that defense counsel committed any misconduct by referring to the injury as the “Long’s fall,” or by eliciting testimony that Kruse had fallen on a substance at Long’s Drug Store. The inquiry was relevant to an examination of Kruse’s prior injuries and how they may have been affected by the collision with Charos; it is not reasonably probable the references to Long’s would have affected the jury’s determination of liability and damages in this case.
The court permitted the jury to suggest questions for the court to ask following a witness’s testimony. The court did not ask the juror’s question about Long’s. The juror’s note is not part of the record on appeal, though counsel for Kruse mentioned it in his argument to the court on this issue. For purposes of this discussion we will presume that the juror posed the question to the court.
C. Section 998 Costs
Kruse contends that Charos’s section 998 offer to compromise was not made in good faith and that the trial court abused its discretion in not considering her financial condition in awarding section 998 costs.
Under section 998, subdivision (b), “any party [until 10 days before trial] may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time.” Whether a section 998 offer was reasonable and in good faith is a matter within the sound discretion of the trial court. (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 700.) “[T]he reasonableness of a defendant’s offer is measured, first, by determining whether the offer represents a reasonable prediction of the amount of money, if any, defendant would have to pay plaintiff following a trial, discounted by an appropriate factor for receipt of money by plaintiff before trial, all premised upon information that was known or reasonably should have been known to the defendant. It goes without saying that a defendant is not expected to predict the exact amount of his exposure. If an experienced attorney or judge, standing in defendant’s shoes, would place the prediction with the range of reasonable possible results, the prediction is reasonable.” (Id. at p. 699, fn. omitted.) A plaintiff who rejects a section 998 offer and who does not obtain a more favorable result at trial cannot recover postoffer costs, must pay the defendant’s costs from the time of the offer, and may be held liable for a reasonable sum to cover the defendant’s expert witness fees. (§ 998, subd. (c)(1).)
Here, Charos made a section 998 offer of $40,000. Kruse argues that the offer was not made in good faith because at the time of the offer her past medical expenses and litigation costs exceeded the amount of the offer. The trial court, however, found that the offer was reasonable given that the jury found against her on the issue of Charos’s liability and, hence, his assumption that Kruse would be unlikely to prove that she was injured as a result of the automobile collision was accurate. The trial court’s finding was correct. “ ‘When a defendant perceives himself to be fault free and has concluded that he has a very significant likelihood of prevailing at trial, it is consistent with the legislative purpose of section 998 for the defendant to make a modest settlement offer.’ ” (People ex rel. Lockyer v. Fremont General Corp. (2001) 89 Cal.App.4th 1260, 1273, italics omitted.)
Relying on Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550 (Seever), Kruse asserts that the trial court failed to consider the disparity in financial resources between the parties in determining a reasonable amount of section 998 costs.
In Seever, an action under the California Fair Employment and Housing Act (FEHA) for disability discrimination, family and medical leave discrimination, and age discrimination (Seever, supra, 141 Cal.App.4th at p. 1555), the court held that “when two competing parties possess vastly disparate economic resources, this may require the trial courts to ‘scale’ the financial incentives (in this instance the section 998 costs awards) to the parties’ respective resources” (id. at p. 1562). The court reasoned that trial courts, in exercising their discretion in making section 998 awards, must ensure that the incentives to settle are balanced between the parties, so that less affluent parties are not pressured into accepting unreasonable offers simply to avoid the risk of a financial penalty they cannot afford. (Seever, at pp. 1561-1562.) The court relied on FEHA and similar cases where California and federal courts have already “demonstrated sensitivity to the imbalance inherent in allowing equal cost-shifting between unequal parties.” (Seever, at p. 1562.) The court remanded the matter to the trial court to make an inquiry into the plaintiff’s financial situation and determine “whether the cost award allowed here represents an unduly powerful settlement incentive to a litigant of Seever’s means.” (Ibid.)
We need not decide whether Seever was correctly decided as we read the Seever opinion as limited to FEHA litigation. It has no application here. Although Kruse raised the issue of her economic situation in her motion to tax costs, the trial court properly declined to consider it in determining the amount of the cost award, noting that it had no discretion to disallow costs based on Kruse’s ability to pay. We agree with the trial court’s reasoning that “[h]ad the Legislature wanted to provide for a means test in the application of Code of Civil Procedure sections 998 or 1033.5, it could have done so. The Legislature having taken no such action, this court declines to impose such a test by judicial fiat.” The trial court’s award of section 998 costs was proper. We discern no abuse of discretion.
III. DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.
We concur: RUVOLO, P.J., REARDON, J.