Opinion
A151059
10-23-2018
SHANNON MOORE et al., Plaintiffs and Respondents, v. STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. DR120609)
Defendant State of California Department of Transportation (Caltrans) appeals from an adverse judgment in this personal injury action brought by plaintiffs Shannon Moore and Kyle Anderson. Plaintiffs were injured when a passenger vehicle driven by Selena Ranney left the roadway and entered their Caltrans-supervised worksite. On appeal, Caltrans argues that (a) the trial court abused its discretion by excluding its expert's hypothetical simulations of the accident, (b) the trial court erred by refusing to instruct the jury, pursuant to section 830.5 of the Government Code, that the accident itself was not evidence of a dangerous condition at the worksite, (c) the special verdict was fatally defective because it omitted Caltrans's affirmative defense under section 835.4, subdivision (a) of the Government Code, (d) the court abused its discretion by excluding evidence of Ranney's methamphetamine use and its effects, and (e) the court erred by entering a directed verdict in favor of plaintiffs as to their comparative negligence.
We reverse in part. The trial court's erroneous exclusion of expert testimony on the effects of Ranney's methamphetamine use was prejudicial error. We remand for a limited retrial only on the issues of Ranney's comparative negligence and the apportionment of damages.
FACTUAL BACKGROUND
Additional factual and procedural background is presented with the discussion of each appellate issue.
On the evening of August 29, 2011, a five-person crew from All Phase Excavating and Construction, Inc. (All Phase) arrived at their worksite on southbound U.S. 101 in Eureka, which is located in Humboldt County. The crew was comprised of Tom Norden, as night supervisor on the project, Aaron Ross, Robert Moskal, and plaintiffs Moore and Anderson. The project, which was scheduled to conclude that night, required installing an underground signal interconnect cable along U.S. 101 between Henderson Street and Wabash Avenue. Intended to connect traffic signals to improve traffic flow, the project required the crew to dig a trench along southbound U.S. 101, lay cable, and install pull boxes every 200 feet in the sidewalk for the purpose of connecting and accessing the cable.
All Phase had begun work on the project two weeks earlier, under the administration of Caltrans resident engineer Heidi Quintrell. She also served as the inspector on the project. Quintrell was simultaneously responsible for other Caltrans projects, including a repaving project on nearby northbound U.S. 101 (the Mercer-Fraser project). During its first week of work on the All Phase project, Caltrans agreed to close a portion of the southbound number two, or curbside, lane as All Phase dug the trench and laid the cable.
On the night of August 18, All Phase informed Quintrell that it had mistakenly severed a utility line while working. Quintrell later acknowledged that she forgot to contact Caltrans's electrical department to identify and mark, prior to the start of the All Phase project, the location of its electrical cables at the worksite. Quintrell approved an order for All Phase to repair the damage. Due to its inability to obtain a permit, All Phase did not begin the additional repair work until the night of August 29. In preparation for that additional work, All Phase again requested and received permission to close the southbound number two lane. When All Phase arrived to work on the 29th, however, Quintrell withdrew approval for the lane closure, citing its incompatibility with a lane closure on the Mercer-Fraser project. Quintrell informed All Phase it could only close the shoulder in the work areas, including at the worksite in front of Mr. Fish, a Eureka seafood market. Placement of a temporary sign and traffic cones are required for a shoulder closure.
As to the work itself, Aaron Ross operated All Phase's backhoe that night. Working with Robert Moskal, Ross used the backhoe's jackhammer attachment to excavate the necessary holes at several locations in the concrete sidewalk. Lights on the backhoe illuminated their work as they progressed down the sidewalk. Following behind, plaintiffs were working as a team to install the pull boxes into the newly excavated holes.
At the pull box location in front of Mr. Fish, at which Ross and Moskal arrived around 11:30 p.m., work was required in both the shoulder and the adjacent parking lot. Accordingly, Ross parked the backhoe so that it straddled the curb in front of Mr. Fish, where he could throw debris into the backhoe's bucket from both sides and use the backhoe for illumination and "for protection." The backhoe weighed over 17,000 pounds. Ross "put [the backhoe] in neutral, left it running, set the parking brake, [and] got out," and Moskal and he proceeded with the excavation at the Mr. Fish location. The bucket of the backhoe was approximately 18 inches from the "fogline," a term for the line dividing the number two lane from the shoulder.
What happened with the backhoe thereafter was disputed. According to Ross, approximately 30 minutes after he and Moskal began working at the Mr. Fish location, Caltrans employee Matt Socha arrived and said "he didn't like what he . . . saw." Socha told Ross to move the backhoe immediately because he did not want the crew working under its lights. Ross called Norden, who told Ross to comply with Socha's request but that he would come to the worksite shortly to talk with Socha. Ross then moved the backhoe and "parked it just in front of the excavated area on the west-hand side of the sidewalk." When Norden arrived at the site, he told Ross and Moskal to take their lunch and then continue working at a different site.
According to Norden, he then located Socha, who introduced himself to Norden as a "safety person for Caltrans." Socha told Norden "he didn't want the backhoe on the highway where [Moskal] and [Ross] were working" and that he wanted a separate light tower moved to light the location in front of Mr. Fish. Norden asked Socha if he "could put the backhoe on the shoulder and use the light tower," but Socha said no, citing the needs of the Mercer-Fraser paving project nearby. Socha then left. Norden moved the light tower as directed and reviewed the Mr. Fish worksite with plaintiffs Moore and Anderson. Norden determined that they needed more conduit to complete the work, and he asked plaintiffs to wait while he drove the backhoe to a nearby storage yard to retrieve more.
Disputing Norden's and Ross's accounts, Socha testified that he was assigned to the Mercer-Fraser repaving project at the time of the accident. At approximately 6:00 p.m. on August 29, as he drove to the Mercer-Fraser worksite, Socha stopped by the All Phase worksite near Mr. Fish to let them know about the Mercer-Fraser project and that he anticipated it would approach their worksite. He denied introducing himself to the All Phase crew as a Caltrans safety inspector. He recalled seeing the backhoe parked "behind the curb" in the "Mr. Fish parking lot." He recalled no other conversation with the All Phase workers before leaving their worksite to supervise a lane closure for the Mercer-Fraser project. Socha also denied ever directing Norden or Ross to move the backhoe or the light tower, though Quintrell recalled Socha telling her he had done just that.
While Moskal and Ross worked with the backhoe and air compressor to jackhammer the holes, plaintiffs followed behind with the pickup truck and light tower, setting the pull boxes. Their work near Mr. Fish would be their last of the night. At the Mr. Fish location, Norden arrived and instructed Moore where to set the light tower, which was attached to the pickup truck. As instructed by Norden, Moore placed the light tower just north of the hole at the worksite, then shut off the truck and got out. According to Moore, around the same time, a "Caltrans guy" (apparently referring to Socha) arrived and talked with Norden, who then instructed Moore to move the pickup and light tower 10 to 15 feet south and reorient the tower. The "Caltrans guy" then left, and plaintiffs took their 30-minute lunch. Near the end of their lunch, Norden left with the backhoe to get additional conduit.
While Norden was away, plaintiffs went to the holes at the worksite in front of Mr. Fish, where one hole had been dug on each side of the curb. Moore went to the hole on the shoulder side, while Anderson went to the hole on the parking lot side to take a measurement. When Moore moved to get a measuring tape from the pickup truck, the men switched holes, with Anderson getting into "the hole by the road" and Moore getting into the hole on the parking lot side. Anderson was "sitting down[,] facing south with his feet in the ditch."
Moore then saw, for the first time, a car "just traveling in the slow lane just going straight." When Moore glanced back at the car seconds later, it was approximately 40 to 50 feet away and heading right for them. Moore yelled for Anderson and tried to grab him, but was unsuccessful. The car hit Anderson and he disappeared. Moore then saw Anderson farther down the road. He ran over to check on Anderson. Moore could not detect Anderson's pulse and called 911.
Seeing Norden returning to the worksite in the backhoe, Moore attracted his attention to the accident. After contacting a 911 operator, Moore then helped Norden perform CPR on Anderson until an ambulance arrived. Shortly after the accident, Moore spoke with a Eureka police officer, to whom he described the vehicle approaching the worksite as "like a moth to a flame." Moore told the same officer that the car had been traveling "faster than the other traffic that he had seen going through there."
Shortly after Norden returned in the backhoe, Socha arrived back at the Mr. Fish worksite, having driven up from the Mercer-Fraser site to ensure that traffic control measures for that project were still in place. Ultimately, Socha drove Norden to the hospital where the ambulance had taken Anderson. Norden recalled that, during the ride, Socha had no comment when Norden asked him, "Do you think we should've left the backhoe on the highway?" Socha denied such a conversation ever occurred.
The driver of the car involved in the accident, a 1997 Acura, was Selena Ranney. Interviewed by police after the accident, Ranney could recall few details about the accident, aside from seeing bright lights and hitting the curb. She did not realize she had hit a person with her car until she pulled over and was told so by a bystander. Ranney told the officer she was very tired after the accident, but did not say she had fallen asleep while driving. In her subsequent deposition, Ranney estimated she was traveling 30 miles per hour (mph) at the time of the accident.
The accident caused Anderson to sustain severe brain injuries. At the time of trial, he remained in a minimally conscious state, with features of locked-in syndrome, meaning that he is quadriplegic and cannot speak, though he retains the capacity for thought and some communication. Anderson was not expected to walk or speak again. The accident caused Moore to suffer from posttraumatic stress disorder, including panic attacks, nightmares, and flashbacks, and he has found it difficult to return to work or earn a living.
PROCEDURAL BACKGROUND
In 2012, plaintiffs sued Caltrans, the Humboldt County Department of Public Works, the City of Eureka, and Ranney for negligence and creating a dangerous condition at the Mr. Fish worksite. After a successful demurrer, plaintiffs filed their first amended complaint in 2013, maintaining their cause of action for dangerous condition against Caltrans, the county and city, further alleging negligence by employees of a public entity against Caltrans, and alleging negligence against Ranney. Caltrans answered in 2013, denying the allegations in the first amended complaint and asserting several affirmative defenses. Ranney answered separately, but plaintiffs subsequently dismissed her from the case prior to trial. Ultimately, Caltrans was the only remaining defendant in the case.
Discovery and in limine proceedings occurred over the next few years. Trial began in late 2016, lasting approximately eight weeks. The jury returned a special verdict in plaintiffs' favor in February 2017, concluding Caltrans had been negligent and was 100 percent liable for creating a dangerous condition at the worksite. The jury found Ranney was also negligent, but found her negligence was not a substantial factor in causing plaintiffs' injuries. Consequently, the jury also found that Ranney's percentage of responsibility for plaintiffs' harm was zero percent.
The jury awarded Anderson $56,526,259.17 in medical expenses, lost earnings, and noneconomic damages. The jury awarded Moore $2,727,587.11 in the same categories. The trial court entered judgment pursuant to that verdict the next day. Thereafter, the court denied Caltrans's motion for a new trial, and Caltrans filed a timely appeal from the judgment.
DISCUSSION
I. The trial court committed reversible error by excluding the opinions of Caltrans's experts that Ranney's methamphetamine use was a probable cause of the accident.
A. Additional procedural and factual background
A blood sample obtained from Ranney on the night of the accident revealed the presence of methamphetamine (430 nanograms per milliliter) and its metabolite, amphetamine (72 nanograms per milliliter). Officers who interviewed Ranney the same night saw no obvious signs she was impaired, but noticed Ranney was tired. Ranney complained of being tired during that interview, recalling that she had fallen asleep after the accident, while both on her way to the hospital and waiting for fast food. At her 2014 deposition, Ranney described herself as a regular user of methamphetamine in August 2011, but testified she had not taken the drug for more than 48 hours before the accident.
Before her dismissal from the case, Ranney moved to exclude all evidence of her methamphetamine use and alleged impairment. Ranney sought to exclude the toxicology report and opinion testimony from Caltrans's experts, Dr. David Smith and Dr. Steven McIntire, who would testify that the neurodepressive effects of methamphetamine on Ranney's ability to drive were a probable cause of the accident. Ranney argued their opinions were entirely speculative because they were not based on any medical evidence about her condition. Ranney also noted both doctors conceded that other factors could reasonably explain the accident. Caltrans opposed the motion, arguing the methamphetamine evidence was relevant to the jury's consideration of whether a dangerous condition existed and whether Ranney was negligent in causing the accident. Caltrans confirmed Smith and McIntire would testify that "Ranney's use of methamphetamine caused her to fall asleep while driving," leading her to veer into the construction zone. The trial court tentatively denied Ranney's motion.
Then plaintiffs took up the issue, requesting an Evidence Code section 402 hearing on the admissibility of Smith and McIntire's opinion testimony. Plaintiffs argued Smith and McIntire's expert opinions should be excluded as contradictory and based on "unreasonable and unsupported factual assumptions." Plaintiffs supported their request with the declaration of expert Dr. Steven Batki. Batki stated there was "insufficient evidence for any expert to opine that at the time of the subject collision, Ms. Ranney's ability to operate a motor vehicle was impaired by any past consumption of methamphetamine."
The court granted plaintiffs' request and held a lengthy hearing. The court heard testimony from McIntire, Smith, and Batki before granting the motion. Because we conclude the court erred by granting the motion and reverse on that basis, a thorough review of the experts' proposed testimony and the court's ruling is necessary.
1. McIntire
McIntire is a physician and neuroscientist with expertise in the neurological effects of methamphetamine. He testified about how Ranney's methamphetamine use could have affected her on the night of this accident. He explained that he had reviewed her deposition testimony, the toxicology report, statements by police officers, video of the interview with Ranney after the accident, and Smith's calculation that Ranney had actually last used methamphetamine within eight hours of the accident.
McIntire ultimately opined that the "neurodepressive sleepiness phase" of the drug's effect on Ranney was, "to a degree of medical probability," the most likely cause of the accident. McIntire based his opinion on scientific knowledge of "what's known to happen in meth abusers": "That used within eight hours, you're going to have a high from the drug, a stimulatory effect on the brain that's then gonna be followed by a neurodepressive effect of the drug, meaning one is going to be groggy or sleepy, have slow reaction time, poor ability to focus, potentially fall asleep completely." "All of those," McIntire continued, "are part of the aftermath or . . . the coming down from amphetamine that occurs after the high and reasonably could disrupt driving and other such functions." McIntire explained these effects may not be observable. McIntire conceded there were other, less probable, causes for the accident.
Under cross-examination, McIntire quantified his certainty that Ranney's methamphetamine use caused the accident as "51 percent or more," either because it caused Ranney to fall asleep or just to be somnolent, though he could not "be a hundred percent sure which of those took place." McIntire agreed that variations in factors such as a person's tolerance, height, weight, and age can affect when one person would "come down" from the effects of methamphetamine as compared to another. Despite such variation, he maintained "there's a very clear pattern" to the drug's effects.
2. Smith
Smith is a physician with a specialty in addiction medicine and attended "graduate school in pharmacology studying the effects of drugs on the brain." At the time of trial, he had been practicing medicine for approximately 50 years and had testified to his opinions on the effects of methamphetamine use approximately 30 times.
Smith presented testimony similar to McIntire's. He opined that Ranney had most likely "nodded out" while driving and coming down from a methamphetamine high. Smith based his opinion on Ranney's history of methamphetamine abuse, the toxicology report, the video of Ranney appearing "to be very somnolent and basically nodding out," and his clinical experience. Smith explained he even had "several patients that fit this profile that have nodded off. Smith believed "it's a high medical probability" that Ranney's methamphetamine impairment caused the accident and that the "alternate medical explanations are low medical probability," though he could not "say for certain."
Smith acknowledged "sample bias" underlying his opinion, since he treats methamphetamine users ("if you don't use meth and just get tired, you're not gonna see me"), but opined that in his "world" there was a high probability that his opinion was accurate. He acknowledged the "possibility . . . that an alternative explanation is accurate." He clarified, though, that "the fact that it's possible that there are other explanations doesn't alter the probabilities that if you have a history of methamphetamine use, positive meth, there's an auto accident and you observe somnolence in a videotape, that that's the most likely explanation."
Under cross-examination, Smith acknowledged he had no evidence that Ranney had actually nodded off. He also conceded not all people who are coming down from methamphetamine nod off, and, even if a person did nod off, he could not predict when they would do so. He also acknowledged there could be other reasons why a driver would veer off the road. He could not tell if Ranney's fatigue during the interview after the accident was caused by coming off the methamphetamine or the fact that she had not slept for 20 hours. Ranney's toxicology report, Smith confirmed, was not enough on its own to show that she was impaired at the time of the accident. Smith confirmed that no scientific studies existed showing "that more than 50 percent of the people that take methamphetamine and withdraw are going to nod off."
3. Batki
Batki—a psychiatrist certified in addiction medicine—testified in support of plaintiffs' motion to exclude the methamphetamine evidence. He opined there was "absolutely no basis" for Smith and McIntire's opinion "that Ms. Ranney nodded off at or around the time of this accident because of her methamphetamine consumption." There was no evidence, he added, that Ranney "was sleepy or sleepy because of methamphetamine use." He believed the evidence, in fact, spoke against that conclusion, because Ranney had not behaved abnormally in response to the accident. Batki based his opinion on depositions and/or interviews of Smith, McIntire, toxicologist Jeffrey Zehnder, Ranney, and police officers who responded to the accident.
Zehnder is a forensic toxicologist. Included in Ranney's witness list, he testified at his deposition that Ranney could not "be found to have been impaired on the morning of the accident because all parties present during the investigation concluded [she] did not exhibit any impaired behavior." The court denied Caltrans's motion to exclude Zehnder's testimony, concluding it could not "say as a matter of law that the opinions offered by Mr. Zehnder are outside the expert's disclosure or field of expertise." Zehnder ultimately did not testify at trial.
Batki noted evidence that Ranney was awake and alert during and after the accident and that she attempted to respond to it in a logical way. Batki also noted the reported observations of Ranney by officers with her immediately after the accident, which indicated her behavior was "normal" and did not exhibit impairment. Ranney's expressions of tiredness did not change Batki's opinion of her behavior, since he believed "she was showing a normal amount of tiredness given the time of day," and that it was "the same level of tiredness the [interviewing officer] was experiencing." Batki also noted the lack of any "epidemiologic studies that address the issues of withdrawal or intoxication for a broad range of individuals with methamphetamine use that could be used in any way to draw conclusions about" Ranney at the time of this incident. Finally, Batki explained that Ranney's toxicology report, and the level of methamphetamine it reflected in her blood, could not lead him to conclude Ranney was impaired absent further examination. Ultimately, Batki opined that it was "impossible to say that it is probable that methamphetamine contributed to this accident."
4. Court's Ruling
The court found Smith and McIntire "qualified to render general opinions about the effect of methamphetamine and the cycle of methamphetamine, the withdrawal from [it] . . . in a general sense." The court also found that there were "foundational facts from which they could offer opinions . . . that [Ranney] used methamphetamine and the circumstances of the accident." The court listed those foundational facts as the toxicology results, the video interview of Ranney, and Ranney's admitted history of methamphetamine use. The court explained it did not find the experts' testimony on the general effects of methamphetamine to be speculative.
But the court, relying on section 802 of the Evidence Code and Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747 (Sargon), found Smith and McIntire's "ultimate conclusion" to be "speculative and not supported by the facts." The court had confirmed multiple times the scope of Smith and McIntire's proposed opinions: "that the methamphetamine impaired Ms. Ranney's ability to drive safely, and it was a cause of the accident, that her somnolent or sleepy state caused her to drive out of the lane of travel and that there's a 51 percent probability that she was asleep or somnolent at the wheel at the time of the accident, causing her to drive outside . . . of the lane of travel, essentially." Comparing the circumstances to those in Hernandez v. County of Los Angeles (2014) 226 Cal.App.4th 1599 (Hernandez), the court explained that, as in Hernandez, there was an insufficient link here "between the drug use and the cause of the accident in this particular situation with this particular defendant." The court explained, "I think as narrowed down and related to this particular person and the activity that was engaged in that evening, that to say that the methamphetamine caused or was a cause . . . goes to the area of speculation or conjecture."
The court noted the jury could still receive evidence that Ranney "did, in fact, fall asleep and did, in fact, do whatever else that is being alleged," the facts of Ranney's appearance in the videotaped conversation with police after the accident, that she fell asleep on the way to the hospital, and that "she was asleep when they went to Taco Bell."
In addition to finding the opinions speculative, the court found the evidence created "a likelihood of prejudice" to Ranney. The court concluded its ruling by stating "the prejudice is outweighed by the possibility that it would be helpful to the jury." The court later denied Caltrans's request for reconsideration of the ruling and rejected the evidentiary error as a basis for Caltrans's motion for new trial. In response to juror questions about the role of drugs or alcohol in the accident, the court instructed the jury "[t]hat drugs and/or alcohol are not an issue in this case, and you are instructed . . . not to consider them in any manner whatsoever."
Neither party objected to this phrasing and, in light of the court's ruling to the contrary, we conclude the court confused the applicable balancing test under Evidence Code section 352 and misspoke.
B. Applicable Law and Analysis
Caltrans argues the trial court abused its discretion under sections 801/802 and 352 of the Evidence Code by excluding the opinions of Smith and McIntire. It contends their opinions were based on sufficient foundation establishing a reasonably probable causal connection between Ranney's methamphetamine use and her sleepiness at the time of the accident. Caltrans relies on evidence of "Ranney's admitted meth use, the toxicology result immediately after the accident, and her appearance on the police interview video." Caltrans contends these foundational facts, combined with the training and experience of McIntire and Smith, sufficiently supported their opinions.
We find Caltrans's arguments persuasive and conclude the trial court abused its discretion by excluding the expert opinions of Smith and McIntire under Evidence Code sections 801/802 and Sargon. We also conclude the error was prejudicial.
The trial court also abused its discretion by excluding the experts' opinions under Evidence Code section 352. Evidence of the effects of methamphetamine on Ranney had substantial probative value in determining the cause of the accident and plaintiffs' injuries, as well as Caltrans's trial defense. Any substantial danger of undue prejudice to Ranney herself was eliminated when she was dismissed from the case. Plaintiffs fail to articulate any such prejudice to them, and we can discern none. Certainly, we can discern no prejudice to plaintiffs in the form of "evidence which uniquely tends to evoke an emotional bias against [a party] as an individual and which has very little effect on the issues," which is the sort of prejudice with which we are concerned. (People v. Karis (1988) 46 Cal.3d 612, 638.)
1. Admissibility of expert opinions under Sargon
As a preliminary matter observation to our discussion, we observe that expert medical testimony concerning the effect of intoxicants like methamphetamine on the operator of a vehicle enjoys general acceptance in the cases. In People v. Bui (2001) 86 Cal.App.4th 1187, the prosecution toxicology expert was permitted to testify regarding the effect of methamphetamine use on the driver in a vehicular manslaughter prosecution. (Id. at p. 1191.) While the defense medical expert challenged the sufficiency of evidence establishing a relationship between methamphetamine use and impaired driving (id. at p. 1193), the Court of Appeal upheld the admission of expert testimony as clearly relevant. "[T]he use of methamphetamine in greater than therapeutic dosages results in impaired driving did not involve a novel process or a new scientific technique or device." (Id. at p. 1195.) In Bui, the professional studies of the prosecution toxicologist were enough to permit the witness to correctly assess the use of methamphetamine and its effects on driving. (See People v. Jimenez (2015) 242 Cal.App.4th 1337, 1347-1348 (prosecution toxicologist correctly testified on the evidence of methamphetamine use and the defendant's operation of a vehicle in a homicide case).)
We review a trial court's ruling excluding or admitting expert testimony for abuse of discretion. (Sargon, supra, 55 Cal.4th at p. 773.) A court's discretion " 'is subject to the limitations of legal principles governing the subject of an action, and to reversal where no reasonable basis for the action is shown.' " (Ibid.) " 'Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an "abuse" of discretion.' " (Ibid., quoting City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297-1298.) "To determine if a court abused its discretion, we must thus consider 'the legal principles and policies that should have guided the court's actions.' " (Ibid., quoting People v. Carmony (2004) 33 Cal.4th 367, 377.)
Under sections 801, subdivision (b) and 802 of the Evidence Code, "the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative." (Sargon, supra, 55 Cal.4th at pp. 771-772.) Evidence Code section 802 "indicates the court may inquire into the expert's reasons for an opinion. It expressly permits the court to examine experts concerning the matter on which they base their opinion before admitting their testimony. The reasons for the experts' opinions are part of the matter on which they are based just as is the type of matter." (Sargon, supra, 55 Cal.4th at p. 771.) "Evidence Code section 802 also permits the trial court to find the expert is precluded 'by law' from using the reasons or matter as a basis for the opinion[,]" meaning "that a court may inquire into, not only the type of material on which an expert relies, but also whether that material actually supports the expert's reasoning. 'A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.' " (Sargon, at p. 771, quoting General Electric Co. v. Joiner (1997) 522 U.S. 136, 146.)
In relevant part, Evidence Code section 801 provides: "If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is [¶] . . . [¶] (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion."
In its entirety, Evidence Code section 802 provides: "A witness testifying in the form of an opinion may state on direct examination the reasons for his opinion and the matter (including, in the case of an expert, his special knowledge, skill, experience, training, and education) upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion. The court in its discretion may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which his opinion is based."
The "trial court's gatekeeping role does not involve choosing between competing expert opinions." (Sargon, supra, 55 Cal.4th at p. 772.) "[T]he gatekeeper's focus 'must be solely on principles and methodology, not on the conclusions that they generate." (Ibid., quoting Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) 509 U.S. 579, 595.) "The trial court's preliminary determination whether the expert opinion is founded on sound logic is not a decision on its persuasiveness. The court must not weigh an opinion's probative value or substitute its own opinion for the expert's opinion. Rather, the court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture. The court does not resolve scientific controversies." (Ibid.) The court "conducts a 'circumscribed inquiry' to 'determine whether, as a matter of logic, the studies and other information cited by experts adequately support the conclusion that the expert's general theory or technique is valid.' [Citation.] The goal of trial court gatekeeping is simply to exclude 'clearly invalid and unreliable' expert opinion." (Ibid.)
The court properly found that Smith and McIntire were "qualified to render general opinions about the effect of methamphetamine and the cycle of methamphetamine . . . that might . . . result from the withdrawal in a general sense." These qualifications are not in dispute on appeal. The trial court also rightly found that there were foundational facts from which Smith and McIntire could offer opinions that Ranney "used methamphetamine and the circumstances of the accident." These included the toxicology results, the police interview of Ranney, the "self-report by [her] that she used methamphetamine."
But the trial court abused its discretion by concluding there was an insufficient basis for Smith and McIntire's shared opinion that Ranney's methamphetamine use was the probable cause of the accident. Specifically, the court found the opinion "not supported by the facts" and "speculative and conjecture." This ruling transgressed the applicable legal principles by holding Caltrans's experts to a more rigid standard than is required for expert opinions.
Cooper v. Takeda Pharmaceuticals America, Inc. (2015) 239 Cal.App.4th 555 (Cooper) is instructive on the admissibility of expert testimony concerning causation. In Cooper, the plaintiff's expert oncologist, based on his performance of a differential diagnosis analysis, testified "to a reasonable degree of medical certainty" that the defendant manufacturer's prescription drug was a substantial factor in causing the plaintiff's bladder cancer. (Cooper, pp. 561, 564.) The expert performed a "differential diagnosis," considering Cooper's "physical symptoms and determining from those symptoms the disease most likely to be the cause of those symptoms." (Id. at p. 565.) The expert explained that differential diagnosis involves considering all the possible causes of a given symptom, and "eliminating them one by one to the best of your ability to say, well, this is my best guess as to what the problem is. And then you proceed with testing and/or diagnostics to figure out exactly the cause." (Ibid.)
The expert did not speak to or examine Cooper, but based his differential diagnosis on his "own paper regarding potential exposure-related causes of bladder cancer; on a particular table from an epidemiology study relating to [the drug]; and a combination of all the published literature, the [defendant's] studies, [the expert's] experience taking care of bladder cancer patients, and his experience in having written on exposures and risks for bladder cancer," "about 1,000 pages" of Cooper's medical records, Cooper's deposition, and "15 epidemiological and clinical studies examining the relationship between bladder cancer and ingestion of [the drug]." (Cooper, supra, 239 Cal.App.4th at p. 566.) The expert noted that Cooper had taken "about 50,000 milligrams" of the drug "over the course of slightly more than five years." (Ibid.) The expert considered Cooper's history of smoking, environmental exposures, and occupational exposures. (Id. at p. 569.) After ruling out occupational exposure, the expert was left to evaluate smoking versus the drug as the most substantial risk factors. (Ibid.) Ultimately, the expert opined that the "most substantial causative factor" of Cooper's bladder cancer was his ingestion of the drug. (Id. at p. 570.)
Throughout the proceedings, the trial court expressed concern that the expert's specific causation opinion was speculative and unreliable. (Cooper, supra, 239 Cal.App.4th at p. 571.) After the jury returned verdicts for Cooper against the defendant pharmaceutical company, the court struck the testimony of Cooper's expert on causation because the testimony did not sufficiently eliminate other possible causes of the cancer. (Id. at pp. 570-571.) As a result of its evidentiary ruling, the court ultimately granted the defendant's motions for judgment notwithstanding the verdict and for new trial. (Ibid.)
On appeal, the Court of Appeal concluded the trial court erred by striking the expert's testimony. (Cooper, supra, 239 Cal.App.4th at p. 576.) The appellate court explained, "Under the applicable substantial factor test, it is not necessary for a plaintiff to establish the negligence of the defendant as the proximate cause of injury with absolute certainty so as to exclude every other possible cause of a plaintiff's illness." (Id. at p. 578.) " 'Instead, the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause-in-fact of the plaintiff's injury.' " (Ibid., quoting Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118.) "[C]learly an expert, in reaching a specific causation opinion, need not exclude all other possibilities before he or she can express an opinion that the defendant's conduct or product caused the plaintiff's harm." (Id. at p. 580.)
Here, the trial court's ruling excluding Smith and McIntire's opinions suggests it, too, required too much of the defendant's experts. The court acknowledged that plaintiffs could still present evidence of Ranney's somnolence "as circumstantial evidence . . . that she did, in fact, fall asleep and did, in fact, do whatever else that is being alleged." The court's only "difficulty," it explained, was "the use of methamphetamine . . . cause[d] [Ranney] to be asleep at the wheel at the time of the accident." This improperly left Caltrans unable to establish that Ranney's sleepiness was caused by her methamphetamine use.
But, after finding that Smith and McIntire were qualified to render general opinions about the effect of methamphetamine and that foundational facts had been established from which Smith and McIntire could offer opinions Ranney used methamphetamines at the time of the accident, the trial court should have allowed them to testify as to their expert opinion it was more probable than not that Ranney's methamphetamine use caused her to be sleepy and not have the proper control of her automobile at that time. Smith and McIntire testified to their opinions that Ranney's methamphetamine use was—to a 51 percent probability—the cause for her somnolence. The undisputed toxicology report showed Ranney had methamphetamine and its metabolite in her blood at the time of the accident. Smith, without any dispute, used the amounts reflected in the toxicology report to calculate Ranney had last used methamphetamine two to eight hours before the accident, belying her statement to officers that she had not used the drug in the previous 48 hours. Smith and McIntire relied on the "known effects" of methamphetamine use, that users experience a high followed by a neurodepressive "crash" characterized by sleepiness and grogginess.
Smith and McIntire established their familiarity with the effects of methamphetamine by drawing on their extensive experience treating methamphetamine addiction and the relevant medical literature. An expert may base his or her testimony upon professional studies or personal experience, so long as he or she "employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." (Sargon, supra, 55 Cal.4th at p. 772.) Further, there was substantial evidence that Ranney was, in fact, sleepy immediately following the accident, including her video interview, in which she admitted falling asleep on the way to the hospital, and awaiting fast food takeout, after the accident.
Smith's and McIntire's opinions were based upon their extensive clinical experience treating methamphetamine addicts and a "reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury" (Cooper, supra, 239 Cal.App.4th at p. 578), that it was more probable than not that Ranney's methamphetamine use was a substantial factor in causing the accident. The court erred by requiring more.
While there were other possible causes for Ranney's tiredness, Caltrans's experts were not required to eliminate them before presenting their opinions. Such concerns went to the weight of the experts' opinions, not their admissibility. (Cooper, supra, 239 Cal.App.4th at p. 593 [assuming adequate threshold of reliability can be made, any questions concerning soundness of the material underlying an opinion are matters of weight for the jury, not admissibility].) As reflected by proceedings at the evidentiary hearing, plaintiffs could have cross-examined Smith and McIntire on the possible other causes and rebutted their opinions with experts of their own, such as Batki. The court's ruling excluding Smith's and McIntire's opinions indicates it confused its own concerns about the weight of the opinions with their admissibility. The court impermissibly focused on the conclusions of Smith's and McIntire's opinions—rather than the principles and methodology upon which they were based—and chose between competing expert opinions, effectively rejecting their opinions in favor of Batki's.
That the court applied an incorrect legal standard to the admissibility of the experts' opinions is also supported by its invocation of Hernandez in concluding that their opinions were speculative. Hernandez is inapposite to that analysis, however, because it concerned the trial court's exercise of its discretion under Evidence Code section 352, not sections 801 and 802 or Sargon. (Hernandez, supra, 226 Cal.App.4th at p. 1613.)
2. Prejudicial Error
" 'A judgment may not be reversed on appeal, . . .unless "after an examination of the entire cause, including the evidence," it appears the error caused a "miscarriage of justice." (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1114 (Gordon), quoting Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) " 'When the error is one of state law only, it generally does not warrant reversal unless there is a reasonable probability that in the absence of the error, a result more favorable to the appealing party would have been reached.' " (Gordon, at p. 1114.) "However, when a trial court erroneously denies all evidence relating to a claim, or essential expert testimony without which a claim cannot be proven," the error "deprives the party offering the evidence of a fair hearing and of the opportunity to show actual prejudice." (Ibid.)
We believe the trial court's error here was prejudicial. The court's exclusionary ruling barred essential expert witness testimony regarding Caltrans's key defense that Ranney's methamphetamine use was the primary cause of plaintiffs' injuries. Without expert testimony, Caltrans had no way to prove this defense. Where the complexity of the causation issue is beyond common experience, expert testimony is required to establish causation. (Garbell v. Conejo Hardwoods, Inc. (2011) 193 Cal.App.4th 1563, 1569.) "The probable effect of intoxicants other than alcohol is a topic 'sufficiently beyond [the] common experience' of most jurors that expert testimony is required." (Pedeferri v. Seidner Enterprises (2013) 216 Cal.App.4th 359, 374.)
The record reflects that Ranney's negligence was Caltrans's primary defense at trial. Caltrans's human factors expert testified at trial that the "most likely factor causing this accident" was Ranney, who was fatigued and lost control over her vehicle while driving. Similarly, Caltrans's accident reconstruction expert also testified that the cause of the accident was "Ranney drifting off, off the shoulder and impacting the curb, and then shortly after that impacting Kyle Anderson in the hole, and dragging him past the hole." Additionally, Officer Gary Whitmer of the Eureka Police Department was the lead investigator in this accident. He was asked at trial if he formed an opinion as to the cause of the accident based on his investigation. He was asked:
"[Question]: Did you form an opinion as to the cause of the accident?
"[Answer]: That Mrs. Ranney turned her car when it was unsafe to do so.
"[Question]: And you found her to be the cause of the accident?
"[Answer]: Yes.
In Gordon, the trial court precluded plaintiff from presenting expert testimony on the defective roof evidenced in the defendant's manufactured cars as a cause of his injury. "Without expert testimony, [the plaintiff] had no realistic way of proving his roof defect claim" of defective design. (Id. at p. 1116.) Gordon relied in part on Brown v. Colm (1974) 11 Cal.3d 639 (Brown). In Brown, the Supreme Court reversed a trial court decision in a medical malpractice case where the plaintiff was not allowed to present expert testimony on the standard of care because the expert was not practicing medicine at the time of the injury. (Brown, at p. 641.) As Brown observed: "[T]he exclusion of the sole expert relied upon by a party because of an erroneous view of his qualifications is, in a case where expert testimony is essential, an abuse of discretion as a matter of law requiring reversal." (Id at p. 647.) Brown's application has not been limited to medical malpractice and products liability cases; it has also been relied on in employment class actions (ABM Industries Overtime Cases (2017) 19 Cal.App.5th 277, 293-294, 297-298) and attorney malpractice matters (Jeffer Mangels & Butler v. Glickman (1991) 234 Cal.App.3d 1432, 1441-1443; see Borrayo v. Avery (2016) 2 Cal.App.5th 304, 312-313.)
Here, without the expert testimony of Smith and McIntire on the effects of Ranney's methamphetamine use, the jury was left searching for some basis to find Ranney negligent and hold her accountable for the accident. The record reflects this search prompted jurors to question whether drugs or alcohol were involved in the case, in response to which the court instructed them they were not (pursuant to the exclusionary order at issue here). Instead, the trial court instructed the jury to consider whether Ranney was negligent per se because she violated section 22107 of the Vehicle Code (unsafe turn). If the jury found she did not violate that statute, it was left to consider whether she was negligent "in light of the other instructions" for basic and comparative negligence, but without putting her broader course of conduct at issue.
Had the court properly admitted the expert testimony, the jury would have heard their opinion that she had consumed methamphetamine two to eight hours before driving, that she arguably drove under the influence of the drug, and that the most probable cause of her tiredness at the time of the accident and thereafter was the neurodepressive effects associated with methamphetamine consumption. Rather than limit the jury focus to the Vehicle Code infraction 22107, the trier of fact should have been permitted to focus on the totality of Ranney's behavior from the time she chose to operate a vehicle to the unfortunate accident and afterwards—a period Caltrans contends was evidence of serious negligence (at least) on her part. Without that evidence, Caltrans was denied the opportunity to present its full defense. Although Caltrans was successful in convincing the jury Ranney was somehow negligent, it was precluded from presenting proper and necessary evidence to convince the jury that this negligence was due to the sleepiness caused by Ranney's methamphetamine use.
We also believe there is a reasonable probability that in the absence of the error, the jury would have reached a verdict more favorable to Caltrans. Though the jury was instructed that Ranney was no longer a party to the case, the verdict form still required it to assess her comparative negligence and percentage of liability. The special verdict reflects that the jury found Ranney negligent, but concluded that her negligence was not a substantial factor in causing plaintiffs' injuries. The basis for the jury's negligence finding is unknown, because the jury was not required to specify a basis in rendering its verdict. Thus, it is also unclear whether the jury's determination of the substantial factor prong might have been affected if the jury had known that Ranney's negligence was due to recent methamphetamine use. Had the jury heard evidence of Ranney's methamphetamine use and the probable effects it had on her driving, we believe it is reasonably probable the jury would have found Ranney's negligence to be a substantial factor in causing plaintiffs' injuries and apportioned at least some percentage of liability to her. II. The trial court did not abuse its discretion by granting plaintiffs' motion to exclude the hypothetical simulations of Caltrans's accident reconstruction expert.
Although we reverse on the ground of erroneous exclusion of Caltrans's methamphetamine expert opinions, we briefly address this issue and the remaining issues to explain why they need not be retried on remand. (Code Civ. Proc., § 43; Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 70.)
A. Additional procedural and factual background
Under sections 351 and 352 of the Evidence Code, plaintiffs sought to exclude a series of digital simulations, prepared by Caltrans accident reconstruction expert Stephen Fenton, depicting four hypothetical collisions between Ranney's Acura and the backhoe. Fenton's hypotheses relied upon variations in the Acura's speed and angle of impact with the backhoe, as well as whether the backhoe's parking brake was on or off. Caltrans labeled the scenarios "bucket-30" (the Acura, traveling at 30 mph, striking the corner of the backhoe's bucket), "brakes on-40" (the Acura, traveling at 40 mph, strikes the rear of the backhoe, which has its parking brake on), "brakes on-30" (as with "brakes on-40," but with the vehicle traveling at only 30 mph), and "brakes off-30" (the Acura, traveling at 30 mph, strikes the rear of the backhoe, which has its parking brake off).
Caltrans specified that it offered Fenton's simulations only to rebut the deposition testimony of Dr. Ziejewski, plaintiffs' accident reconstruction expert, "that if a backhoe had been positioned in the shoulder, that there is 'no physically possible scenario' that plaintiff Anderson would have been injured." Plaintiffs replied Ziejewski would not reiterate his broad statement at trial. Instead, they intended to present only Ziejewski's version of the "brakes-on 30" hypothetical because it was the only scenario based on facts in evidence.
Noting that plaintiffs did not intend to offer the expert opinion Fenton's simulations were intended to rebut, the court granted the motion and excluded all four of Fenton's simulations "unless they are offered as rebuttal testimony to plaintiffs' expert Ziejewski's statement on direct examination that 'there is no physically possible scenario' that would result in defendant Ranney's vehicle striking plaintiff Anderson or a substantially similar comment on direct examination."
At trial, Ziejewski presented only a version of the "brakes-on 30" hypothesis, laying out its foundation in evidence about the circumstances of the collision (e.g., the position of the backhoe, Ranney's speed, the status of the parking brake, and Anderson's position in the hole). Ziejewski confirmed that the only evidence Ranney's vehicle was traveling at 30 mph at the time of the collision was her deposition testimony. Under these conditions, Ziejewski opined "there would be no contact" between the backhoe and Anderson.
The trial court's in limine ruling did not preclude Fenton from testifying and rebutting Ziejewski's testimony. Fenton challenged several of the assumptions and calculations underlying Ziejewski's hypothetical opinion. Ultimately, Fenton opined that, even if the backhoe had been on the shoulder at the time of the accident, Anderson still would have been struck. Fenton did not present any of his hypothetical simulations to the jury.
B. Applicable law and analysis
Caltrans argues the trial court abused its discretion by excluding Fenton's hypothetical simulations. We review a trial court's evidentiary rulings for an abuse of discretion. (Winfred D. v. Michelin North America, Inc. (2008) 165 Cal.App.4th 1011, 1026.) Pursuant to section 351 of the Evidence Code, all relevant evidence is admissible, except as otherwise provided by statute. (Evid. Code, § 351.) Even so, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) "Use of hypothetical questions is subject to an important requirement. 'Such a hypothetical question must be rooted in the facts shown by the evidence.' " (People v. Vang (2011) 52 Cal.4th 1038, 1045, quoting People v. Gardelay (1996) 14 Cal.4th 605, 618, disapproved on other grounds by People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13.)
As an initial matter, we note that Caltrans primarily challenges the exclusion of Fenton's "brakes-on 40" simulation, which assumed that the backhoe's parking brake was engaged and that Ranney was traveling at 40 mph. Caltrans's challenge is without merit. Caltrans's proffered evidentiary basis—Moore's postaccident statement to an officer that he observed Ranney's Acura moving more quickly than other traffic—does not suggest a speed of 40 mph. The only evidence of Ranney's speed, as the trial court noted, was her deposition testimony. As such, any hypothetical simulation was required to assume Ranney's speed was 30 mph, and any that did not, as did Fenton's "brakes-on 40" simulation, was without foundation, lacked probative value, and was properly excluded.
Caltrans challenges the court's exclusion of the "brakes-off 30" simulation as erroneous given the state of the evidence at the time of the in limine ruling, when there was no evidence as to whether the backhoe's brakes were engaged. But any arguable error at the time of that ruling was rendered harmless after Aaron Ross testified at trial that, when he positioned the backhoe for protection at the Mr. Fish worksite, he engaged the parking brake. As such, there was no basis for presenting to the jury a simulation assuming the brake was off. Next, Caltrans articulates no basis for concluding the trial court abused its discretion by excluding the "bucket-30" simulation, failing to satisfy their burden to as to that claim of error. (People v. Sullivan (2007) 151 Cal.App.4th 524, 549, quoting People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573 [" 'Perhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error.' "].)
That brings us to the exclusion of Fenton's simulation of the "brakes-on 30" hypothetical. This is the hypothetical about which Ziejewski testified at trial, and it was the only one with sufficient foundation in the evidence, as explained above. To that extent, Fenton's testimony on that scenario was erroneously included within the scope of the trial court's in limine ruling. Most likely, its inadvertent inclusion resulted from the court treating Fenton's hypotheticals collectively rather than considering their admissibility individually (an infirmity from which Caltrans's appellate argument suffers, as well).
We can discern no prejudice to Caltrans from this error, however. (Code Civ. Proc., § 475 [We must disregard any error in the proceedings which does not affect the substantial rights of the parties, such "that a different result would have been probable if such error . . . had not occurred or existed"].) Caltrans was still able to elicit Fenton's expert testimony on that scenario, challenging Ziejewski's conclusions and opining that the backhoe would not have prevented Anderson from being hit. Thus, as plaintiffs contend, both experts were able to testify about how much the backhoe would have moved if Ranney had collided with the rear of the backhoe while traveling at 30 mph, with the backhoe's brakes engaged. Caltrans was also able to present to the jury a contradictory conclusion based upon the same scenario. These facts belie Caltrans's claims of both prejudice and of disparate treatment of its expert by the trial court.
Finally, Caltrans also argues the court erred by precluding its impeachment of Ziejewski with his prior inconsistent statements that, aside from Ranney's deposition testimony that she was traveling at 30 mph, there was no way to verify her actual speed and that he had also hypothesized the outcome had Ranney been traveling at 40 mph, the posted speed limit for that portion of U.S. 101. We are not persuaded. The trial court correctly sustained the objection because Ziejewski's prior statements were not inconsistent with any testimony he gave at trial. (Evid. Code, § 1235; People v. Homick (2012) 55 Cal.4th 816, 859 [fundamental requirement of Evid. Code, § 1235 is that the statement in fact be inconsistent with the witness's trial testimony].)
III. The trial court properly rejected Caltrans's request for a special jury instruction based on section 830.5 of the Government Code.
In its proposed jury instructions, Caltrans requested a special jury instruction pursuant to section 830.5 of the Government Code. The requested instruction read, "The happening of the accident which resulted in injury to the plaintiffs is not in and of itself evidence that the public property at the site of the accident was in a dangerous condition." The court denied Caltrans's request. We agree with plaintiffs that the court did not err by rejecting the instruction "because the instructions as a whole effectively informed the jury that the happening of the incident was not alone evidence that Caltrans' property was in a dangerous condition."
Government Code section 830.5, subdivision (a), reads: "Except where the doctrine of res ipsa loquitor is applicable, the happening of the accident which results in the injury is not in and of itself evidence that public property was in a dangerous condition."
As an initial matter, we are required to uphold a ruling if it is correct on any basis, regardless of whether such basis was actually invoked. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) Therefore, even though the trial court's reason for rejecting Caltrans's proposed Government Code section 830.5 instruction—that it did not "conform" to CACI Nos. 1101 or 1102—was incorrect, we must affirm the ruling if it is correct on any legal basis.
Here, the trial court properly rejected the proposed special instruction because other jury instructions adequately informed the jury that the happening of the accident was not, in and of itself, evidence that the property was in a dangerous condition. (Fibreboard Paper Products Corp. v. East Bay Union of Machinists (1964) 227 Cal.App.2d 675, 719 [error cannot be predicated on the refusal to give a requested instruction if the subject matter is substantially covered by the instructions given].) The court instructed the jury with versions of CACI Nos. 1100, 1101, and 1102. CACI No. 1100 enumerated the elements plaintiffs were required to prove to establish they were each harmed by a dangerous condition of Caltrans's property. Specifically, CACI No. 1100 required the jury to find that plaintiffs had established that: (1) Caltrans owned or controlled the property; (2) the property was in a dangerous condition at the time of the incident; (3) the dangerous condition created a reasonably foreseeable risk of the kind of incident that occurred; (4) Heidi Quintrell and/or Matt Socha negligently exercised Caltrans's retained control over the work of All Phase so as to create a dangerous condition; (5) Anderson and/or Moore was harmed; and (6) the dangerous condition was a substantial factor in causing Anderson's and/or Moore's harm. In deciding whether Caltrans controlled the property, CACI No. 1101 instructed the jury to consider "whether [Caltrans] had the power to prevent, fix, or guard against the dangerous condition."
CACI No. 1102 defined a "dangerous condition" as "a condition of public property that creates a substantial risk of injury to persons when the property is used with reasonable care and in a reasonably foreseeable manner. A condition that creates only a minor risk of injury is not a dangerous condition." (Ibid.) Importantly, CACI No. 1102 required the jury to determine whether the property was in a dangerous condition "without regard to whether Selena Ranney, All Phase or any employee of All Phase exercised or failed to exercise reasonable care in the use of the property." The "Directions for Use" to CACI No. 1102 indicate that a court should instruct the jury with this bracketed language ("if comparative fault is at issue"), as was the case here. ("Directions for Use" to CACI No. 1102, Feb. 2018 update.) These directions further explain that the language "clarifies that comparative fault does not negate the possible existence of a dangerous condition." (Ibid.)
The language requires jurors to focus on the condition of the property, and whether it created a substantial risk of injury, rather than what others did or did not do in causing the accident (i.e., the "happening" of the accident). As such, this sentence, and the generic "dangerous condition" language in it and the other instructions, accomplished what Caltrans sought with its proposed Government Code section 830.5 instruction. By instructing the jury to disregard whether Ranney or All Phase "exercised or failed to exercise reasonable care in the use of the property," the court instructed the jury to disregard the circumstances (including any negligence by Ranney or All Phase) of the specific accident in deciding whether Caltrans had created a dangerous condition.
As instructed in CACI No. 1100, this required the jury to focus on whether the property's "dangerous condition created a reasonably foreseeable risk of the kind of incident" (italics added) that eventually occurred, not the circumstances of this particular accident (e.g., whether the absence of safety barriers at a roadside worksite created a reasonably foreseeable risk that motorists could injure workers exposed there). Similarly, as instructed in CACI No. 1102, the jury was required to consider whether that dangerous condition created a substantial risk of injury to "persons" generally, not Anderson and Moore specifically.
The instructions as given thus adequately addressed the proposition embodied in Government Code section 830.5. We presume the jury understood and followed those instructions. (Craddock v. Kmart Corp. (2001) 89 Cal.App.4th 1300, 1308.) Therefore, there was no error and no need for further instruction on that proposition. Because the jury was already instructed on the correct substantive law, we presume the jury would have reached the same conclusions even had they received Caltrans's special instruction. (Henderson v. Harnischfeger Corp. (1974) 12 Cal.3d 664, 674.)
IV. Caltrans forfeited its claim that the special verdict form is defective.
A. Additional factual and procedural background
Caltrans asserted several affirmative defenses in this action, including that the actions of its employees were reasonable under Government Code section 835.4, subdivision (a). If the jury agreed with Caltrans's defense, Caltrans would not be liable to plaintiffs, even if the jury found that it had created a dangerous condition. Caltrans failed to ensure the jury would consider this defense, however.
Government Code section 835.4, subdivision (a) reads: "A public entity is not liable under subdivision (a) of Section 835 for injury caused by a condition of its property if the public entity establishes that the act or omission that created the condition was reasonable. The reasonableness of the act or omission that created the condition shall be determined by weighing the probability and gravity of potential injury to persons and property foreseeably exposed to the risk of injury against the practicability and cost of taking alternative action that would not create the risk of injury or of protecting against the risk of injury." Government Code section 835, subdivision (a) reads: "Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that . . .: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition."
Caltrans filed its first proposed special verdict forms on January 13, 2017. It submitted one form for plaintiff Moore and one for plaintiff Anderson. Pursuant to Government Code section 835.4, subdivision (a), each proposed form asked the jury, in the event it found Caltrans had created a dangerous condition, whether the acts or omissions of Caltrans employees which created the dangerous condition were reasonable. Caltrans submitted revised verdict forms for each plaintiff on January 25, including the same question.
The next day, plaintiffs announced they had prepared a single verdict form to cover both Moore and Anderson. The record does not contain a copy of this proposed form. Caltrans responded they would "need to look at the forms to make sure everything is consistent." Caltrans later objected to plaintiffs' proposed form, contending that one verdict form for each plaintiff would be more appropriate, especially for purposes of appeal. Caltrans also explained that some of plaintiffs' proposed questions were fine, but objected that the placement of questions about damages was "confusing to the jury." Caltrans also disputed the language of other questions on the verdict form. After detailing their objections, Caltrans reminded the court that it had submitted its own special verdict forms and suggested the court "also might consider" them. Caltrans did not object to plaintiffs' proposed special verdict form as omitting its affirmative defense under Government Code section 835.4. The court noted that plaintiffs' special verdict form appeared to "follow the format of CACI [No. VF-]402," which it believed was "appropriate."
The court apparently referred to CACI's sample special verdict form No. VF-402, for "Negligence—Fault of Plaintiff and Others at Issue." This sample verdict form does not include a question for the jury about a Government Code section 835.4 affirmative defense. (CACI No. VF-402.)
The next day, just before instructing the jury, the court indicated it would "give the verdict form as previously agreed upon," without specifying to whose proposed form it referred. Caltrans did not object. The court did not expressly reject one special verdict form over another, but the subsequent proceedings indicate the sole verdict form before the parties, court, and jury was plaintiffs'. Plaintiffs' counsel referred to their version of the form during closing argument, leading the jury through it question by question. Counsel for Caltrans did the same, focusing on the first question, which asked whether the area was in a dangerous condition at the time of the accident. The verdict form ultimately completed by the jury did not include a question on Caltrans's reasonableness defense.
Upon receiving the jury's verdict, the clerk read the completed verdict form aloud, proceeding question by question and polling the jury (collectively and individually) on its answer to each. Yet, the record reflects no mention of the omission of the Government Code section 835.4, subdivision (a) reasonableness question from the special verdict form, any concomitant objection., or any further proceedings on Caltrans's Government Code section 835.4 defense. Caltrans did not ask for clarification of the verdict or further jury deliberations, and it did not raise the omission of the defense from the special verdict form in their motion for new trial.
On appeal, Caltrans claims for the first time that the omission of a question on their Government Code section 835.4, subdivision (a) defense from the special verdict form rendered the verdict fatally defective. Caltrans argues it included the question in its proposed verdict forms, that it presented evidence at trial in support of the defense, and that the court instructed the jury to consider the defense with CACI No. 1111. Plaintiffs maintain Caltrans forfeited this claim by failing to object or otherwise bring the omission to the trial court's attention.
Yet, in proposing jury instructions, Caltrans had requested that the court instruct the jury with CACI No. 1111, which details the affirmative defense under Government Code section 835.4. Plaintiffs proposed the same instruction. The record reflects no dispute over the instruction, and the court instructed the jury with CACI No. 1111.
Caltrans does not dispute that it failed to object to the final verdict form or otherwise bring the omission to the trial court's attention. Instead, it argues that defects in a verdict form are not waived by a failure to object unless such failure results from a deliberate strategic decision by counsel, noting that plaintiffs make no such claim here. Caltrans also asserts that it preserved its defective-verdict claim by submitting its proposed special verdict forms for the court's consideration, citing Vollaro v. Lispi (2014) 224 Cal.App.4th 93 (Vollaro) and Heppler v. J.M. Peters Co. (1999) 73 Cal.App.4th 1265 (Heppler), and its reliance on the reasonableness defense in closing arguments. We find Caltrans's arguments unavailing.
B. Applicable Law and Analysis
"Failure to object to a verdict before the discharge of a jury and to request clarification or further deliberation precludes a party from later questioning the validity of that verdict if the alleged defect was apparent at the time the verdict was rendered and could have been corrected." (Keener v. Jeld-Wen (2009) 46 Cal.4th 247, 263 (Keener), italics omitted, quoting Henrioulle v. Marin Ventures, Inc. (1978) 20 Cal.3d 512, 521.) "Further polling of the jury and sending the jury out for further deliberations are means by which some defects can be corrected." (Bell v. Bayersiche Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108, 1130.)
But forfeiture is not automatic, and there are exceptions. (Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456, fn. 2.) For example, "[w]aiver is not found where the record indicates that the failure to object was not the result of a desire to reap a 'technical advantage' or engage in a 'litigious strategy.' " (Ibid.) The waiver rule also will not apply when the verdict itself is inconsistent. (Henrioulle v. Marin Ventures, Inc., supra, 20 Cal.3d at p. 521, fn. 11.)
Exceptions to the general waiver rule apply, however, only if the verdict is ambiguous and if the verdict defect is not apparent. In Keener, our Supreme Court noted that the Woodcock exception is for "ambiguous verdicts, as to which a party failed to object and seek a more formal verdict under Code of Civil Procedure section 619." (Keener, supra, at p. 270, original italics.) The Court reiterates this position in a related footnote, explaining that "cases that have applied the Woodcock dictum to find an absence of forfeiture have involved, similarly to Woodcock, ambiguous verdicts or informal, inconsistent, or mistaken verdicts that could be corrected under Code of Civil Procedure section 619 . . . ." (Id. at p. 270, fn. 30.) In yet another footnote, the court added that, even if the Woodcock exception applied outside the context of ambiguous verdicts, it would apply only to latent defects, not apparent ones. (Id. at p. 270, fn. 31.)
During polling of the jurors on a special verdict in Keener, no one noticed that polling revealed only eight votes on the question of apportionment of fault, rather than the required nine. (Keener, supra, 46 Cal.4th at p. 252.) The issue was not addressed before the court discharged the jury. (Id. at pp. 252-253.) On appeal, the court considered whether the failure to object to the incomplete polling before discharge of the jury forfeited the issue for appellate review. (Id. at p. 262.) After reviewing its treatment of the issue in prior civil and criminal appeals, the court concluded the issue was forfeited. (Id. at pp. 262-268.) In addition to noting the policy concerns already enumerated above, the Keener court reiterated that a timely objection to the incomplete polling would have allowed the issue to be resolved by the trial court, before discharge of the jury and with minimal expenditure of time. (Id. at p. 266.) In so ruling, the court explained that the defect in the verdict was apparent at the time it was rendered and polled and that it would not have been impractical for counsel to make a contemporaneous objection to correct the defect. (Id. at pp. 266-267.)
Elaborating on the apparentness of the verdict defect, the court adopted the plaintiff's argument that " '[i]f a "defect" like the one here were deemed not "apparent," counsel for losing parties—in both civil and criminal cases—would have an incentive to keep mum about a possible yet curable defect and voice objections only after the jury is discharged, when a cure is too late, thus mandating reversal and retrial. Although most counsel would resist that temptation, neither parties nor counsel should be given that incentive in the first instance. Rather, the incentive should be in favor of mandating an objection to increase the chances that such defects are detected and cured before the jury is discharged.' " (Keener, supra, 46 Cal.4th at p. 267.) Though the verdict defect here is different from that in Keener, we believe the forfeiture concerns are analogous.
On the record before us, Caltrans forfeited its claim that the verdict was defective by not disposing of their reasonableness defense under Government Code section 835.4. The defect was apparent when the verdict was received. The omission of the reasonableness question was apparent on the face of the verdict form, which Caltrans had an ample opportunity to review before the form went to the jury. Furthermore, the record reflects counsel for Caltrans were in the courtroom as the completed verdict form was read in open court and the jury polled. That the omission of its statutory reasonableness defense "escaped notice" by defense counsel does not indicate that the omission was " 'not apparent.' " (Keener, supra, 46 Cal.4th at p. 267.)
As such, Caltrans was obliged to object to the omission and request correction or further deliberation before the jury was discharged. Had it done so, the court could have sent the jury back to consider the reasonableness defense. Yet, Caltrans failed to bring the issue to the trial court's attention, and Caltrans does not argue that it would have been impractical to do so. Instead, it argues only that its failure to object was excused because it was not attempting to gain a technical advantage or engage in a "litigious strategy," relying on the principle enunciated in Woodcock. However, Woodcock predates the court's fuller exposition of the forfeiture rule in the court's unanimous decision in Keener, which noted that the Woodcock exception is a "rule for ambiguous verdicts" and does not apply when the defect in question is apparent. (Keener, supra, 46 Cal.4th at p. 270.)
Caltrans argues the defect renders the verdict ambiguous, and thus fatally defective, but does not attempt to argue the defect was not apparent. Indeed, to do so would be difficult as, assuming Caltrans's claims about its reliance on the defense are true, it is difficult to imagine a more glaring omission. Because the defect was apparent, and it could have been corrected had Caltrans timely brought it to the trial court's attention, we conclude that Caltrans forfeited appellate review of the defect.
We are not persuaded by Caltrans's argument that its initial submission of verdict forms that included a question on its reasonableness defense preserved the issue for our review. For that proposition, it relies on the aforementioned decisions in Vollaro and Heppler. While those Court of Appeal decisions lend some support for Caltrans's argument, neither decision accounts for Keener's refinement of the forfeiture rule in this context or the principles underlying it.
For these reasons, we conclude Caltrans forfeited this issue for our appellate review and need not consider its merits.
V. Caltrans has not shown the trial court erred by granting plaintiffs' motion for a directed verdict on their comparative negligence.
The court granted plaintiffs' motion for a directed verdict on their comparative negligence upon concluding there was not sufficient evidence before it to support Caltrans's claim of comparative negligence by either Anderson or Moore. Pursuant to this ruling, the court later instructed the jury that it had determined plaintiffs were not at fault and directed them not to consider plaintiffs "responsible in any way, either individually or as employees of All Phase, for the incident they claim caused their harm."
Caltrans argues the court erred because it had presented evidence of plaintiffs' comparative negligence sufficient to withstand a directed verdict. Specifically, it argues it showed plaintiffs were negligent by choosing to work in the existing conditions. Plaintiffs respond there was no evidence either Anderson or Moore knew, or should have known, that the worksite was unsafe. Plaintiffs also maintain that none of the facts about their work at the site—such as inadequate traffic cones or working without facing traffic—was a substantial factor in causing their injuries.
"[W]e decide de novo 'whether sufficient evidence was presented to withstand a directed verdict.' " (North Counties Engineering, Inc. v. State Farm General Ins. Co. (2014) 224 Cal.App.4th 902, 920, quoting Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 46-47.)
" 'A directed verdict may be granted only when, disregarding conflicting evidence, giving the evidence of the party against whom the motion is directed all the value to which it is legally entitled, and indulging every legitimate inference from such evidence in favor of that party, the court nonetheless determines there is no evidence of sufficient substantiality to support the claim or defense of the party opposing the motion, or a verdict in favor of that party.' " (Magic Kitchen LLC v. Good Things Internat., Ltd. (2007) 153 Cal.App.4th 1144, 1154.) To avoid a directed verdict, the opposing party's evidence must be more than a mere "scintilla." (Newing v. Cheatham (1975) 15 Cal.3d 351, 358-359.) In addition, any inference supporting the opposing party's case must be reasonable. (Id. at p. 365.)
To have succeeded on a claim of comparative negligence against plaintiffs, Caltrans would have been required to prove both that (1) plaintiffs were negligent and (2) plaintiffs' negligence was a substantial factor in causing their harm. (CACI No. 405; see 2 Schwing, Cal. Affirmative Defenses (2010) § 48.2, p. 1379.) ["[A] defendant who seeks to establish a comparative fault defense must prove not only the plaintiff's negligence but also the causal and proximate relation of that negligence to the injury."].) "A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. [¶] Conduct is not a substantial factor in causing harm if the same harm would have occurred without the conduct." (CACI No. 430.)
The court did not instruct the jury with CACI No. 405, "Comparative Fault of Plaintiff," but we presume the court would have done so, using the CACI form instruction, had the issue of plaintiffs' comparative fault survived the directed verdict and gone to the jury. The court did instruct the jury with CACI No. 430, which defines "substantial factor" in the negligence context. --------
Caltrans's argument fails because it points to no evidence suggesting that any negligence by either plaintiff was a substantial factor in causing their injuries. Caltrans's failure to cite such evidence precludes it from demonstrating that the trial court erred by concluding no substantial evidence supported plaintiffs' comparative negligence. (Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 971.) The record reflects Caltrans also failed to point to such evidence during oral argument on the directed verdict motions. Indeed, the record as a whole reflects that the heart of Caltrans's comparative negligence defense was Ranney's negligence, not plaintiffs', and that it geared its presentation of evidence to that end. Given the absence of evidence that any negligence by plaintiffs was a substantial factor in causing their injuries, we cannot conclude that the trial court improperly granted a directed verdict on that issue.
DISPOSITION
The judgment is reversed in part. We remand the matter with directions to the superior court to permit expert testimony on Ranney's methamphetamine use as described herein and to conduct a limited retrial on the question of Ranney's comparative negligence, including whether her negligence was a substantial factor in causing plaintiffs' injuries. (Torres v. Automobile Club of So. California (1997) 15 Cal.4th 771, 776 [it is firmly established that appellate courts have power to order a retrial on a limited issue, if that issue can be separately tried without such confusion or uncertainty as would amount to a denial of a fair trial].) If the jury finds Ranney was negligent and that her negligence was a substantial factor in causing plaintiffs' injuries, it must also reconsider the apportionment of comparative fault and damages.
Because we have found no reversible error relating to the proceedings on Caltrans's negligence or the existence of a dangerous condition, those issues need not be retried. The superior court should, however, consider whether evidence on those issues should be admitted at the limited retrial to assist the jury in considering the issue of comparative fault between Caltrans and Ranney. Finally, the total amount of damages is also uncontested and need not be retried.
Each party will bear their costs on this appeal.
/s/_________
Dondero, J. We concur: /s/_________
Humes, P. J. /s/_________
Margulies, J.
The record as a whole reflects that the heart of Caltrans's defense was Ranney's negligence, and that it geared its presentation of evidence to that end.