Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. RIC474996 Dallas Holmes, Judge.
Ford, Walker, Haggerty & Behar, Robert L. Reisinger and Maxine J. Lebowitz for Defendant and Appellant.
Law Offices of Mark J. Meyers, Mark J. Meyers and Mark W. Burnett for Plaintiff and Respondent.
OPINION
RICHLI J.
Appellant Rosa Hernandez Tinoco appeals the judgment entered after trial. On March 20, 2007, Tinoco hit a car at an intersection in Corona. Respondent Derrick Rose was a passenger in the vehicle. Rose filed suit against Tinoco claiming he injured his knee in the accident. Tinoco admitted liability for the accident, but denied causation of the injury to Rose’s knee. A jury found Tinoco caused Rose’s injuries and granted him $208,000 in compensatory damages. The damage award was later reduced by the trial court to $163,526.
Defendant now contends on appeal:
1. The trial court erred in permitting Rose’s treating orthopedic surgeon to opine that the accident in question was the cause of Rose’s knee injury.
2. The trial court erred in permitting Rose’s expert to testify at trial regarding medical bills he had not seen prior to or discussed at his deposition.
We affirm the judgment in its entirety.
I
PROCEDURAL BACKGROUND
On July 5, 2007, Rose and Reyna Gallegos (the driver of the vehicle in which Rose was riding) filed a complaint for property damage and personal injury against Tinoco based on an automobile accident that occurred in Corona on March 20, 2007. Rose and Gallegos sought compensatory damages for wage loss, loss of use of property, hospital and medical expenses, general damage, and loss of earning capacity. The loss of earning claim was withdrawn prior to trial.
Tinoco answered the complaint, denying causation, and alleged that Rose and Gallegos were negligent. Gallegos was dismissed prior to trial.
Tinoco filed several motions in limine (MIL) prior to trial. Relevant here is MIL 3 in which she sought to exclude portions of testimony by Dr. Daniel Kharrazi, an expert to be called by Rose, as will be discussed in more detail, post.
The parties stipulated prior to trial that the accident occurred on March 20, 2007; Tinoco was driving a 2002 Toyota Camry and was the registered owner; and Rose was a passenger in Gallegos’s vehicle. Further, the jury was advised that Tinoco was admitting liability for the accident but not causation of the injury.
The jury reached its verdict on June 26, 2009. The jurors concluded that Tinoco’s “negligence [was] a substantial factor in causing harm to” Rose. The jury affixed Rose’s past economic damages (medical expenses) at $48,000. Future medical expenses were awarded in the amount of $100,000; past pain and suffering in the amount of $10,000; and future noneconomic loss, including pain and suffering, in the amount of $50,000. The total award was $208,000.
According to the amended judgment on the verdict, the jury failed to take into account when entering its verdict a 4 percent reduction in the present cash value of the future medical care despite being instructed to do so. The trial court ordered the parties to provide briefing to the court on the matter. Those records are not included in the clerk’s transcript. After taking the matter under submission, the trial court reduced the award for future medical expenses to $55,526. Hence, the total award to Rose was $163,526, plus costs and 10 percent interest calculated from March 11, 2008.
The amended judgment was filed on August 19, 2009. Tinoco filed a timely notice of appeal.
II
FACTUAL BACKGROUND
A. Plaintiff’s Case
1. The accident
Rose was 33 years old and had lived with his grandmother, Alicia Pendleton, for 16 years in Corona. He was six feet one inch tall. Throughout high school, Rose had played football and basketball. When he was 16 years old, he broke his ankle. He played football in college. He played in a semiprofessional football league for five years. He never suffered a knee injury.
On March 20, 2007, Rose was riding in Gallegos’s Ford Expedition. Two other passengers were in the back seat. Rose was wearing his seat belt. While Rose was leaning forward to adjust the radio, he observed Tinoco drive fast toward the intersection, roll through the stop sign, and then crash into the passenger side of Gallegos’s car. Rose’s knee “jammed” into the dashboard.
Rose got out of the car to see if he could help Tinoco; based on the damage to her car, he assumed she was hurt. When he got out of the car, he discovered that he could not walk, and his right leg began to throb. He had to hop on one leg. Two police officers arrived. Rose told them he hit his knee on the dashboard but that he did not want an ambulance because he had no medical insurance and could not afford one. Rose’s knee was not bleeding or bruised.
The police report stated there were no injuries.
Rose went home, but he was having pain and swelling in his knee. He was taken to Corona Regional Medical Center. They gave him a shot and a prescription for Vicodin. He was given a knee brace and crutches. X-rays revealed nothing was broken.
Rose was unable to walk without crutches. It got worse as the days proceeded and was very painful. He was then referred by his attorney to Dr. Kevin Shamlou. An MRI was taken of his knee. Based on that MRI, Rose was advised that he might need surgery.
Rose started physical therapy until the surgery. He was still on crutches and could not drive. In September 2007, Rose was referred to Dr. Daniel Kharrazi, who specialized in knee surgery. Dr. Kharrazi performed knee surgery on Rose on October 5, 2007.
After the surgery, Rose had a catheter in his leg that dispensed pain medication. He also took oral pain medication. He was essentially bedridden for about one month.
Rose had physical therapy starting November 12, 2007, and continuing for over two months. He received pool treatments, leg strengthening, and hot/cold treatments. He was in incredible pain during this time. He was given several pieces of equipment to help with the physical therapy. He also had a second MRI. In January 2008, Rose was released from Dr. Kharrazi’s care.
Rose admitted he missed some of the appointments.
In March 2008, Rose had a flare-up, and it was discovered he had bone spurs. By July 2008, he could do some jogging. He still experienced some pain after long walks or if he kept his leg bent for periods of time. If he tried to do any sports activities, he had pain in his leg. He took pain relievers.
Rose received medical bills for the treatment of his injuries from Corona Regional Medical Center, Fullerton Radiology Medical Group, Dr. Shamlou; he also received bills the MRI’s, the surgery performed on him, the physical therapy, and the equipment used for physical therapy.
Rose was in another accident on September 18, 2007 (about six months after the subject accident) while driving Gallegos’s Ford Expedition. He rear-ended another car, but no one was injured. Rose’s knee did not strike the dashboard during this accident. This second accident occurred prior to his seeing Dr. Kharrazi and his knee surgery.
2. Witness testimony
Alicia Pendleton, Rose’s grandmother, testified that she saw him on a daily basis prior to the accident and that prior to March 20, 2007, she was unaware of any type of knee injury suffered by Rose. He came home after the accident “hopping.” His knee was swollen. He returned from the hospital with crutches. She further testified that Rose was not injured in the rear-end accident occurring in September 2007.
Gallegos testified that after the accident, Rose complained to her that he had pain in his knee. He was limping. She took him to the emergency room later that day, where he received a morphine injection and pain medicine. Since the time Rose and Gallegos met in 2005 to the time of the accident, Rose had never exhibited any knee problems. There was no damage to Gallegos’s Ford Expedition from the second accident.
3. Expert testimony
Dr. Kharrazi specialized in shoulder and knee arthroscopic surgery. He had worked with members of both the Los Angeles Lakers and the Los Angeles Sparks basketball teams. Dr. Kharrazi first saw Rose on September 20, 2007. Rose’s knee was swollen as big as a grapefruit and was tender.
After reviewing an MRI of Rose’s knee, Dr. Kharrazi concluded that Rose had a cartilage injury. Damage to the soft cartilage in his knee was also prevalent. Such damage was commonly caused by a sudden impact injury to the knee. Dr. Kharrazi performed the arthroscopic surgery on Rose’s knee.
Dr. Kharrazi surmised that Rose’s injury to his knee was a classic “‘dashboard injury.’” Dr. Kharrazi had no other records to show that Rose had a previous knee injury. That the injury occurred during the accident was “extremely consistent” with the MRI findings. Further, based on the emergency room report, the injury occurred on the day of the first accident.
Dr. Kharrazi indicated that Rose also had a meniscus tear (which is a common sport’s injury), but his main problem was the damaged cartilage and kneecap injury. If Rose had a preexisting meniscus tear, he could not have played sports. Based on the MRI and the knee surgery, there did not appear to be any preexisting injury to the knee area.
Dr. Kharrazi explained that cartilage injuries can deteriorate over time and get worse. In March 2008, Rose had a flare-up and was prescribed anti-inflammatory drugs. In November 2008, Rose was still continuing to have pain. An MRI taken at that time showed degeneration of the joint.
Dr. Kharrazi reviewed all of the medical bills Rose received and found them reasonable, as will be discussed in more detail, post.
Dr. Kharrazi was certain Rose was going to need future medical care. This medical care included injections to help with the degeneration under his kneecap and for his knee. Rose would likely develop arthritis, and would need X-rays and MRI studies periodically. He would eventually need a knee replacement. A knee replacement cost between $50,000 to $100,000. Rose would incur at least $10,000 to $15,000 per year in medical expenses.
B. Defense Case
Judson Welcher is an accident reconstructionist (which he explained was reconstructing how an accident occurred) and a biomechanical engineer (which he explained was a determination of how a person’s body reacts inside a car during an accident). Welcher was hired by Tinoco to reconstruct the March 20 accident and to assess the biomechanics of Rose in the car. Welcher reviewed all of the deposition testimony, medical records, traffic collision report, photographs from the scene, and a repair estimate on the Ford Expedition, and took into account the weight and size of the vehicles involved and the interior compartment of the vehicle. He inspected the accident site. Welcher did not inspect the two vehicles involved.
Welcher indicated that the knee of a person who was six feet one inch tall sitting in the front seat with his seatbelt on would be about eight inches from the dashboard in a Ford Expedition. Based on the speed of the vehicles at the time of the collision, Rose’s knee would have moved forward at most four and one-half inches and would not have hit the dashboard. Even leaning forward to change the radio would not change the location of his knee. Welcher’s opinion was that if Rose was seated back in his seat properly and had on his seatbelt, he was not going to sustain a knee injury in the accident and certainly not a meniscus tear.
No records given to Welcher showed Rose had knee problems prior to the accident. It would take a lot of pressure to cause the fracture of the cartilage.
Dr. James Moore was an orthopedic surgeon who had performed approximately 1, 500 knee surgeries during his career. Dr. Moore reviewed the medical records and the deposition testimony of Rose and Dr. Kharrazi. He also personally examined Rose’s knee on July 2, 2008.
Rose told Dr. Moore he had injured his knee in the March 20 accident. Dr. Moore looked at the X-ray taken at the emergency room and saw bone spurs that had built up over time. There was degeneration in the knee due to the bone spurs. The MRI taken after the accident also showed the bone spurs. These would have developed prior to the accident. There was also minor wearing down of the cartilage. There was degenerative changes in the meniscus, but this was not necessarily a tear.
Dr. Kharrazi disagreed that the MRI and X-rays showed bone spurs. Further, he did not observe any such spurs during the surgery.
Dr. Moore also testified about the reasonableness of the medical bills, as will be discussed in more detail, post.
Dr. Moore indicated that since there were no records that Rose had a previous knee injury, the cartilage damage in the knee had to be the result of a blow to the knee. Dr. Moore first surmised the blow was either caused by falling down or by hitting his knee on the dashboard during the accident. After Tinoco’s attorney informed him of Welcher’s testimony that he did not believe Rose could have hit the dashbaord, Dr. Moore surmised the injury could have been caused by Rose falling down on the hardwood floor of a basketball court or hitting another player’s knee.
Dr. Moore admitted that prior to March 20 there were no reported injuries to Rose’s knee. Dr. Moore had also concluded in a prior report that Rose might need future surgery and additional physical therapy.
Tinoco testified she never saw Rose hopping on one leg at the accident scene, but she admitted she was “shook up” and did not notice much of anything at the accident site.
III
DR. KHARRAZI’S TESTIMONY
Tinoco contends on appeal that the trial court improperly overruled her foundation objection to Dr. Kharrazi’s testimony that the cause of Rose’s knee injury was a classic dashboard injury because he was an orthopedic surgeon not qualified as a biomechanical expert. As such, Dr. Kharrazi could not form an opinion as to the cause of the accident.
A. Additional Factual Background
At trial, Rose’s counsel asked Dr. Kharrazi if he had formulated an opinion on the cause of Rose’s injury. Tinoco objected for lack of foundation, speculation, and outside expertise. The objection was sustained on foundation grounds. Dr. Kharrazi clarified that he based his opinion on previous medical records and the history taken from Rose. Dr. Kharrazi indicated he could not just look at an MRI and tell the cause of the injury. He relied on a patient’s history and the mechanism of injury and then determined the “most likely” cause of the accident. When Dr. Kharrazi was asked again if he had determined the cause of the accident, Tinoco’s foundation objection was overruled.
Dr. Kharrazi then testified: “Well, I mean, [Rose] obviously was an athlete before. And I think in our deposition the issues came up, but his injury is a classic one for what we call a ‘dashboard injury.’ Basically if you’re ever in a car where your knee hits a dashboard or has a twisting injury or some sort of torque on it, it causes this pattern of a tear and cracking the cartilage like [Rose] had. So I would say on a scale of one to ten, it’s a ten-plus classic injury of this kind.” Counsel then asked: “Okay. So based upon what you just told us, doctor, it was your opinion that this injury was caused as a result of him striking his knee on the dashboard?” Dr. Kharrazi responded: “Correct. As I have told you-I think both of you guys-when you did the deposition. If you have other records that show he had an injury to his knee previously or something to his knee, please give it to me. I would like to put that idea to rest. All I have is all the information that Dr. Shamlou had that I reviewed, as well as his MRI, his physical examination, his surgery. The injury that occurred during that accident is extremely consistent with the MRI findings, what we saw in surgery. The whole picture fits into this accident causing this cartilage injury.”
B. Standard of Review
On appeal, a trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion. (Ghadrdan v. Gorabi (2010) 182 Cal.App.4th 416, 420-421.) Error occurs only where the trial court’s decision exceeds the bounds of reason, “‘“all of the circumstances being considered.”’ [Citation.]” (Poniktera v. Seiler (2010) 181 Cal.App.4th 121, 142.)
C. Analysis
Medical causation in a personal injury action “must be proven within a reasonable medical probability based [on] competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.]... A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury. [Citation.]” (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403.)
Evidence Code section 720, subdivision (a) states that “[a] person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” The California Supreme Court has recognized that there has been an “unmistakable general trend in recent years... toward liberalizing the rules relating to the testimonial qualifications of medical experts.” (Brown v. Colm (1974) 11 Cal.3d 639, 645.)
“A treating physician is a percipient expert, but that does not mean that his testimony is limited only to personal observations. Rather, like any other expert, he may provide both fact and opinion testimony.... A treating physician is not consulted for litigation purposes, but rather learns of the plaintiff’s injuries and medical history because of the underlying physician-patient relationship.” (Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31, 35-36.) A treating physician “may testify as to any opinions formed on the basis of facts independently acquired and informed by his training, skill, and experience. This may well include opinions regarding causation and standard of care because such issues are inherent in a physician’s work.” (Id. at p. 39.)
There is no doubt that Dr. Kharrazi was an expert in treating knee injuries. He has been a board certified orthopedic surgeon since 1999 and specializes in arthroscopic knee and shoulder surgeries. He has performed over 10, 000 knee and shoulder surgeries. Dr. Kharrazi has treated members of the Los Angeles Lakers and Los Angeles Sparks basketball teams for shoulder and knee injuries. He sees traumatic injuries on a daily basis. He formulates causation opinions on a daily basis.
Based on his experience, he opined that Rose had suffered a classic “dashboard injury.” He based this opinion on his experience, Rose’s history, and the type of injury, the most serious being the cracking of cartilage under the kneecap. He also based his opinion on his examination of the knee during the arthroscopic surgical procedure, which showed no prior long-standing knee injury. Based on the MRI and the findings during surgery, Dr. Kharrazi determined that it was consistent with the injury being caused by Rose’s knee hitting the dashboard during the accident. We see no reason for the trial court to exclude this evidence.
Tinoco complains that Dr. Kharrazi’s opinion was based on the inadmissible hearsay of Rose that he was injured in the accident. However, any statements by Rose to Dr. Kharrazi regarding the cause of the accident were not admitted to prove the truth that he hit his knee on the dashboard. Rather, they were admitted to show how Dr. Kharrazi came to the conclusion that Rose’s knee injury was caused by his hitting his knee against the dashboard. (Tierney v. Charles Nelson Co. (1937) 19 Cal.App.2d 34, 37-38 [plaintiff’s doctor may be allowed to testify to history of accident given him by the patient; although self-serving, the statements are proper for limited purpose of showing basis for doctor’s opinion on injuries].)
Also, Tinoco complains that Dr. Kharrazi was trained as an orthopedic surgeon, not a biomechanical engineer. However, Tinoco has provided no case, nor have we found one, that prohibits the testimony provided by Dr. Kharrazi based on his experience only as an orthopedic surgeon and because he was not a biomechanical engineer.
Tinoco has cited to Young v. Bates Valve Bag Corp. (1942) 52 Cal.App.2d 86, 96 for the proposition that: “It is no doubt the law, ... that where an expert witness bases his opinion entirely upon incompetent matter, or where it is shown that such incompetent matter is the chief element upon which the opinion is predicated, such opinion should be rejected altogether.” Tinoco claims that Dr. Kharrazi based his opinion on incompetent matter, i.e., Rose’s statements. However, as outlined extensively, ante, Dr. Kharrazi relied on numerous sources in reaching his conclusion that Rose’s knee showed a classic “dashboard injury.” Moreover, even though Dr. Kharrazi indicated he did not know that Rose had played sports prior to the accident, he stated the injury to Rose’s knee could not have been caused by playing sports. Tinoco has provided no support for her contention that only a biomechanical engineer can testify as to causation of an injury and that Dr. Kharrazi was not qualified to testify as to causation.
We do not find persuasive Tinoco’s argument that, since Dr. Kharrazi did not see Rose until six months after the accident occurred, he could not render an opinion as to the cause of the accident. Here, Dr. Kharrazi attempted to find another cause for the injury, but there was no apparent cause based on the medical records.
Tinoco complains it was not “explicit” that Dr. Kharrazi was only expressing an opinion as to the cause of the accident and that the jury necessarily would have accepted his statements as true. Dr. Kharrazi clarified that he formulated his opinion on the fact it was more likely than not that the cause of the injury was the accident based on the information before him. The jury certainly could have believed, as argued by Tinoco, that the injury was actually caused by Rose playing sports and hitting his knee on the floor, or by the second accident. We do not interpret Dr. Kharrazi’s testimony as concluding for the jury the cause of the accident; it was clear that it was his opinion.
Further, the jury was instructed that: “During the trial, you heard testimony from expert witnesses yesterday and today. The law allows an expert to state opinions about matters in his field of expertise even if he hasn’t witnessed any of the event[s] involved in this trial. You don’t have to accept an expert’s opinion. As with any other witness, it’s up to you to decide whether you believe the expert’s testimony and choose to use it as a basis for your decision.... [¶]... If the experts disagreed with one another, and they did, you should weigh each opinion against the other’s, you should examine the reasons given for each opinion and the facts or other matters that each witness relied on.” We presume that the jurors followed the instructions and accepted Dr. Kharrazi’s testimony as only his opinion as to the causation of Rose’s injury. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 803-804.)
Further, even if Dr. Kharrazi was not qualified to testify as to the cause of Rose’s injury, any admission of the evidence did not result in a miscarriage of justice. “In civil cases, a miscarriage of justice should be declared only when the reviewing court, after an examination of the entire cause, including the evidence, is of the opinion that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. [Citation.]” (Huffman v. Interstate Brands Corp. (2004) 121 Cal.App.4th 679, 692, citing Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069.)
We agree with Rose that the testimony of Dr. Moore was beneficial to him. Dr. Moore-an orthopedic surgeon-indicated that since there were no records that Rose had a previous knee injury, the cartilage damage in the knee had to be the result of a blow to the knee. Dr. Moore first surmised the blow was caused by falling down or hitting his knee on the dashboard during the accident. After Tinoco’s attorney informed him of Welcher’s testimony that he did not believe Rose could have hit the dashboard, Dr. Moore testified at trial that the injury could be caused by falling down on the hardwood floor of a basketball court or hitting another player’s knee. Dr. Moore admitted that prior to March 20 there were no reported injuries to Rose’s knee.
Based on the foregoing, the jury could have reasonably concluded, even without Dr. Kharrazi’s testimony, that Dr. Moore had changed his mind at trial in order to support Tinoco, who had hired him to testify. The pretrial testimony of Dr. Moore matched that of Dr. Kharrazi. Further, several other witnesses-Rose, Pendleton, and Gallegos-supported the theory that the knee injury was caused by the accident and not another accident or sports injury. If the jury rejected Welcher’s testimony, it could reasonably rely on Dr. Moore’s opinion prior to trial that the knee injury was caused by Rose hitting the dashboard. Although Dr. Moore testified as to degeneration of the knee prior to the accident, this evidence did not address the traumatic injury to the knee.
For the first time in the reply brief, Tinoco contends the evidence should have been excluded as more prejudicial than probative under Evidence Code section 352. We do not address issues raised for the first time in the reply brief. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-766.)
Based on the foregoing, we find that the trial court did not abuse its discretion by admitting Dr. Kharrazi’s opinion regarding the cause of Rose’s knee injury. Moreover, any error did not result in a miscarriage of justice.
IV
MEDICAL BILLS
Tinoco also claims the trial court erred by allowing Dr. Kharrazi to testify regarding the reasonableness of all the medical bills incurred by Rose, as he was not shown the bills prior to his deposition and professed no knowledge of the bills at the time of the deposition. Tinoco argues that the admission of the evidence was prejudicial because she was not on notice that she had to call her own expert to refute the reasonableness of the charges and services provided. Further, her cross-examination of Dr. Kharrazi was not sufficient.
A. Additional Factual Background
Prior to trial, Tinoco filed MIL 3 “to limit plantiff’s expert Daniel Kharrazi, M.D.’s opinions and bases for opinions to those expressed at deposition.” (Capitalization and boldface omitted.) Tinoco claimed-relying on Kennemur v. State of California (1982) 133 Cal.App.3d 907 (Kennemur) and Code of Civil Procedure section 2034-that Dr. Kharrazi had stated at his deposition that he had never seen any of the actual medical bills and was not prepared to offer opinions on the medical bills at that time. As such, he could not testify at trial regarding the reasonableness of the medical bills.
Tinoco attached excerpts from Dr. Kharrazi’s deposition to MIL 3. Dr. Kharrazi testified that he had seen a summary of the bills that Rose received but had not seen the actual bills. Dr. Kharrazi stated: “I saw Corona Regional Medical Center’s billing, which is right here, so it’s emergency room billing. I’ve seen that. I didn’t really focus on the bills. If it’s in this packet, I’ll be happy to go through it. But I didn’t really focus on any of the billing from the individual providers.” Dr. Kharrazi had not evaluated the bills individually. Dr. Kharrazi was then asked: “So you have no opinion on those medical bills as you sit here right now?” Dr. Kharrazi responded: “No. I think the opinion is these were the bills.” Dr. Kharrazi did opine that cartilage surgery could be between $600 and $15,000.
In opposition to MIL 3, Rose argued that by taking such a broad view of the law, it would keep experts from testifying about anything not discussed in depositions and encourage poor depositions by the defense.
At the hearing, the trial court characterized MIL 3 as seeking to limit the opinions of Dr. Kharrazi to those expressed in his deposition. The trial court stated: “And Defendant characterizes this as a Kennemur motion. The opposition said, ‘No, it’s not something that is being purposefully withheld here.’ If Defendant wanted to, they could have taken another deposition. And I’m inclined to agree with the plaintiff and deny this under Kelly [v.] New West [Federal Savings (1996) 49 Cal.App.4th 659]. I intend to conduct our trial on the evidence as it exists today. I don’t think this is a Kennemur situation.”
Tinoco contended Dr. Kharrazi was not prepared at the time of the deposition, although Rose’s counsel declared that the doctor would be fully prepared to offer his opinions at the time of the deposition. Despite this assurance, Dr. Kharrazi was not prepared as he had not looked at the medical bills. It was unfair to allow him to testify about things he was not prepared to answer at the deposition. Tinoco also “suspect[ed]” that Dr. Kharrazi was going to try to lay a foundation for the reasonableness and necessity of the medical bills at trial. Tinoco also stated that a second deposition was never offered.
The trial court responded that a second deposition did not have to be offered; Tinoco could have noticed the deposition.
The trial court concluded: “I’m comfortable with my ruling. I’m going to deny, based on the authorities and, particularly, based on Kelly [v.] New West.”
At trial, Dr. Kharrazi was first asked about the bills from Dr. Shamlou. Tinoco raised another Kennemur objection that the bill was not seen at the time of the deposition. The trial court overruled the objection, finding that the issue was dealt with before trial.
Dr. Kharrazi testified at trial that he had reviewed the medical bills, including those from Corona Regional Hospital in the amount of $1,400 for the emergency room visit, Fullerton Radiology Medical Group bill of $73, Dr. Shamlou’s bills amounting to $450, physiotherapy bills from RMS Medical Group of $1,100, his own office bills of $2,300, bills from Rancho Physical Therapy for therapy after surgery of $3,000, a $22,000 surgical bill, a $1,500 bill for the anesthesiologist, and a bill from Aspen Medical Resources for rehabilitation equipment of about $8,000. He concluded they were reasonable expenses based on Rose’s injury and were related to the injury. Dr. Kharrazi admitted the two MRI costs of $1,600 and $2,000 were a little more than the traditional $1,000.
At the time the medical bills were to be moved into evidence, Tinoco objected that, except for Dr. Kharrazi’s bills, they constituted hearsay and no one testified about the bills. The trial court admitted the exhibits, e.g., medical bills, as business records.
The jury was instructed that they must determine damages, including reasonable medical bills. The jury was informed that in order to find these economic damages, i.e., medical expenses, Rose had to prove “the reasonable cost of a reasonably necessary medical care that he has received.”
B. Analysis
“Under Code of Civil Procedure section 2034.210, subdivision (a), any party may demand the exchange of expert witness information. In this exchange, a party may provide either ‘[a] list setting forth the name and address of any person whose expert opinion that party expects to offer in evidence at the trial’ or ‘[a] statement that the party does not presently intend to offer the testimony of any expert witness.’ [Citation.] ‘[Code of Civil Procedure section 2034] and the case law... require that “the general substance of the testimony which the witness is expected to give” must be disclosed upon proper request. As interpreted by the California courts, this requires a party to “disclose the substance of the facts and the opinions to which the expert will testify, either in his witness exchange list, or in his deposition, or both.” [Citation.]’ [Citation.]” (Easterby v. Clark (2009) 171 Cal.App.4th 772, 778, fn. omitted.)
Rose refers to a declaration provided in discovery to Tinoco that stated Dr. Kharrazi would testify about the reasonableness of the medical bills, and therefore, Tinoco was on notice well before the deposition of this testimony. However, the declaration is not in the record before us, and we cannot consider it.
In Kennemur, supra, 133 Cal.App.3d 907, the court held that an expert who sought to testify whether the automobile accident leading to the injury of plaintiff was caused by a defective vehicle in which plaintiff was in or by a dangerous condition of public property was limited to the testimony of whether the automobile was defective. The expert’s testimony was limited due to the fact that during discovery the fact of the accident being caused by a defect in public property was not disclosed in violation of former Code of Civil Procedure section 2037.3, and at the deposition, the expert stated he had no opinion as to the condition of the public property. (Kennemur, at pp. 917-918.)
The relevant statute has since been changed to Code of Civil Procedure section 2034 et seq.
“[A] party’s expert may not offer testimony at trial that exceeds the scope of his deposition testimony if the opposing party has no notice or expectation that the expert will offer the new testimony, or if notice of the new testimony comes at a time when deposing the expert is unreasonably difficult.” (Easterby v. Clark, supra, 171 Cal.App.4th at p. 780.)
We find that Kennemur is distinguishable. Here, Dr. Kharrazi testified at his deposition that he had received a summary of the medical bills. He had not looked at the specific bills but offered to do so if Tinoco so desired. Despite this offer, Tinoco did not pursue the issue any further. At no time did Dr. Kharrazi state, as the expert in Kennemur did, that he would not discuss the medical bills at trial. Rather, merely indicated he had not reviewed them individually; he was never asked if he would testify regarding the reasonableness of the medical bills at trial.
In Kelly v. New West Federal Savings, supra, 49 Cal.App.4th 659, a case involving the use of motions in limineto exclude a different theory of an accident that occurred, the court noted: “It is a misuse of a motion in limine to attempt to compel a witness or a party to conform his or her trial testimony to a preconceived factual scenario given during pretrial discovery. One purpose of pretrial discovery is to pin down the testimony of parties and witnesses which can be used for impeachment at the time of trial.... Other than issue preclusion based on responses to requests for admissions, sanctions for abuse of the discovery process, or a clear case of waiver or estoppel, a court abuses its discretion when it precludes a party from trying a case on a theory consistent with existing evidence, even though the pretrial testimony of the party relating to how the accident occurred is contrary to the theory.” (Id. at pp. 672-673.)
Here, Tinoco was well aware of the existence of the medical bills and that Dr. Kharrazi had received at least a summary of the bills. Dr. Kharrazi never declared that he would provide no opinion on the bills at trial; rather, he had no opinion at the time of the deposition, but was willing to give one if asked to do so. Tinoco, at the deposition, despite having access to the medical bills, chose not to have Dr. Kharrazi review the bills. It is disingenuous then to use the motion in limine process to exclude the testimony.
Regardless of whether the trial court erred by admitting Dr. Kharrazi’s testimony, Tinoco has completely failed to show that she suffered any prejudice due to the admission of Dr. Kharrazi’s testimony regarding the reasonableness of the medical bills. (Foster v. Gillette Co. (1979) 100 Cal.App.3d 569, 578-579; see also Easterby v. Clark, supra, 171 Cal.App.4th at p. 783.) “Even assuming arguendo the testimony complained of was error, it was not so prejudicial as to have resulted in a miscarriage of justice....” (DePalma v. Rodriguez (2007) 151 Cal.App.4th 159, 166.)
Dr. Moore, Tinoco’s expert, opined that the medical bills for Dr. Kharrazi’s initial consultation of $800 was high for just an examination. He estimated that $300 to $350 was reasonable. Dr. Moore opined that the $8,000 charge from Aspen Medical Resources for hot/cold pack equipment was unreasonable. The physical therapy cost of $275 per day was high; he estimated it should be half that amount. Further, he determined a knee surgery was approximately $3,000, rather than $13,000. The facility fee from the surgery would be $8,000 to $10,000. Dr. Moore admitted that prior to trial he had stated the bills were reasonable, but he had changed his mind after further review.
Tinoco’s expert was well prepared and able to address the reasonableness of the medical bills. Tinoco claims he would not have had to present the evidence if Dr. Kharrazi’s testimony had been excluded. However, Rose testified to his medical bills, and they were introduced into evidence. Rose could have argued, based on this evidence alone, that these were the reasonable medical bills. Tinoco would have had to rebut the bills regardless of Dr. Kharazzi’s testimony.
Moreover, during closing argument, Rose’s counsel pointed out to the jury that the medical bills totaled $57,827.19. He noted there was a difference of $15,000 in the two estimates of the reasonableness of the bills between the experts. He stated that $50,000 was a reasonable award. Tinoco’s counsel did not address the reasonableness of the medical bills. The jury awarded $48,000 in medical bills.
We do not see how the jury award was prejudiced by Dr. Kharrazi’s testimony. Since Tinoco cannot show how she was prejudiced, her claim fails.
V
DISPOSITION
The judgment is affirmed. Plaintiff shall recover his costs on appeal.
We concur: McKINSTER Acting P.J.MILLER J.