Opinion
G044848 Super. Ct. No. 30-2009-00121669
01-18-2012
ISAAC SAAR et al., Plaintiffs and Appellants, v. AMY NIVEN, Defendant and Respondent.
Remer, DiVincenzo & Griffith and Joseph P. DiVincenzo for Plaintiffs and Appellants. O'Connor, Schmeltzer & O'Connor, Lee P. O'Connor and Timothy J. O'Connor for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Geoffrey T. Glass, Judge. Affirmed.
Remer, DiVincenzo & Griffith and Joseph P. DiVincenzo for Plaintiffs and Appellants.
O'Connor, Schmeltzer & O'Connor, Lee P. O'Connor and Timothy J. O'Connor for Defendant and Respondent.
Plaintiffs Isaac Saar (Saar) and his wife, Ruth Saar, appeal from the judgment upon a special verdict in favor of defendant Amy Niven. They contend the evidence is insufficient to support the jury's finding defendant's negligence in an automobile accident was not a substantial factor in causing harm to Saar and that defense counsel's numerous acts of misconduct deprived them of a fair trial. Finding no error, we affirm.
FACTS
Defendant was driving a Honda Civic in heavy stop and go traffic when she bumped the back of a Jeep Grand Cherokee driven by Saar. She had just taken her foot off the brake pedal and was travelling less than 10 miles per hour at the time; her airbags did not deploy.
Damage to Saar's vehicle consisted of an indentation on the bumper cover and a 1/2 inch bend in the trailer hitch, with the itemized damage amounting to $828.23. No emergency personnel responded and both vehicles were drivable from the scene. Although Saar saw a chiropractor the next day, he did not see a medical doctor until two weeks later.
Plaintiffs sued defendant for damages. Saar alleged the accident caused cervical spine injuries, including cervical myelopathy and herniated discs, necessitating neck surgery. He further asserted he suffered "dizziness, headaches, blurred vision and episodes of syncope," a decrease in "memory and overall cognition," and posterior cortical atrophy also known as Benson's Syndrome, a rare type of dementia "that has a degenerative origin, but can be aggravated or accelerated by trauma." Ruth Saar, who was not in the vehicle at the time of the accident, claimed loss of consortium.
At trial, defendant presented testimony from several experts. According to accident reconstructionist Richard Hodson, defendant was traveling between six and eight miles per hour. The weight disparity between the two vehicles would cause the jeep a change in velocity of three to four miles per hour.
Douglas Kiester, M.D., a board certified orthopedic surgeon and biomechanic, opined that upon reviewing Saar's medical records and personally examining him there was no indication Saar suffered a spinal cord or other injury as a result of the accident. Nor was trauma a cause of Saar's cervical myelopathy, which is a degenerative condition with "slow progressive symptomatology."
Radiologist Stephen Rothman testified his review of Saar's MRI scans and x-rays of his neck taken six or seven months after the accident revealed a "longstanding" degenerative condition in his neck that predated the accident and was not caused by it. The "process t[ook] years to decades to occur and could not have occurred by itself from the [accident] just a few months before." The films showed trauma did not cause Saar's disc herniations in his neck or that he had suffered any injury to his spinal cord. Rothman also did not observe any "signs of chronic myelopathy."
Martin Levine, M.D., a board certified neurologist who was also board eligible in psychiatry, examined Saar and reviewed his medical records. Levine opined Saar suffered not from dementia but from pseudodementia caused by anxiety, frustration, pain, or medication. He also diagnosed Saar with depression brought on by anxiety, pain, and disappointment about the results of his cervical spine surgery. Saar's medical records showed he did not lose consciousness at the time of the accident and the MRI of the brain was normal, both of which suggested he did not have a brain injury. Nor did other records disclose any symptoms consistent with a brain injury. Levine evaluated Saar for signs of Benson's Syndrome but found none. In any event, trauma is neither a presentation nor progression factor for any form of dementia, including Benson's Syndrome.
Both plaintiffs testified Saar never had neck pain before the accident but they were confronted with hospital records revealing an accident occurring seven years earlier that resulted in neck pain. Plaintiffs were impeached on other aspects of their testimony as well.
The jury returned a special verdict answering "No" to the question of whether defendant's "admitted negligence . . . [was] a substantial factor in causing harm to . . . Saar." The trial court entered judgment in defendant's favor and awarded her costs. It subsequently denied plaintiffs' motions for new trial and judgment notwithstanding the verdict.
DISCUSSION
1. Substantial Evidence
Plaintiffs contend substantial evidence does not support the verdict because there was "uncontradicted proof . . . Saar suffered some injury as a result of the . . . motor vehicle collision." But plaintiffs forfeited this claim by "present[ing] only facts and inference favorable to [their] position" (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738) and failing to set forth and discuss how and why the unfavorable evidence is insufficient (ibid.). As defendant argues, the opening brief omits any evidence favorable to her and fails to fairly summarize the testimony of her defense experts.
Even if not forfeited, the contention lacks merit. Evidence showed minimal impact to Saar's vehicle and defense experts testified Saar did not sustain any injuries in the accident. According to Dr. Kiester, there was no evidence Saar suffered a spinal cord or other injury due to the accident. Dr. Rothman opined the accident did not cause Saar's degenerative condition or disc herniations in his neck. And Dr. Levine testified there was no indication Saar had a brain injury or Benson's Syndrome. This evidence suffices to sustain the verdict.
Plaintiffs challenge Dr. Kiester's testimony, calling him "a notorious defense medical examiner, who admits to over 2000 assignments from defendants and insurance companies . . . ." They argue Dr. Kiester's testimony does not constitute substantial evidence given his acknowledgement "at least a cervical strain injury was caused by the accident" and the testimony of Saar's treating physician and other witnesses who confirmed Saar had no prior neck pain or injury and that all of his symptoms arose after the accident.
But plaintiffs have forfeited their claim Dr. Kiester testified the accident caused a cervical strain by failing to provide any supporting record reference. (Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743.) Moreover, our review of the record shows Dr. Kiester testified Saar "may have had a cervical strain[, but b]ased upon the records, he didn't have anything." (Italics added.) This left the door open for the jury to conclude defendant's negligence was not a substantial factor in causing Saar harm.
Plaintiffs assert Dr. Kiester's testimony did not constitute substantial evidence because he "did not have a complete set of records" when he arrived at his conclusion and changed his analysis upon receiving additional records. But in actuality Dr. Kiester testified the chiropractic records that he subsequently saw were "not compatible with a rear-end accident[, s]o in the end, it doesn't really change [his analysis] that much." Nor did the absence of the initial report from Saar's treating family doctor, Dr. Josette Taglieri affect Dr. Kiester's opinion. When asked if Dr. Taglieri's earlier notation of complaints of pain indicated an underlying degenerative condition was accelerated or aggravated by the accident, Dr. Kiester answered, "No," "[m]ost of [Saar's] complaints were not relatable to this accident[, s]o I don't know what was causing it at that point."
Although the opening brief made no mention of Dr. Rothman, during oral argument plaintiffs contended he testified a chronic condition could be worsened by trauma. But their failure to provide supporting record references again forfeits their claim. (Miller v. Superior Court, supra, 101 Cal.App.4th at p. 743.) Even considering the issue, we note Dr. Rothman made it clear the scans showed Saar "could have had a lot of serious things" and if the accident caused radicular pain or a spinal cord injury, he would have felt it right away. In other words, "[i]f you hear the music right away, then it was caused by the strumming. If you hear it three months later, forget about it." Here, Saar admitted he did not see a medical doctor until two weeks after the accident, although he saw a chiropractor the next day.
Plaintiffs maintain "all of the evidence . . . showed . . . Saar was symptom . . . and injury free for seven years prior to this accident, . . . [following which he] had a continuous history of pain and medical treatment, culminating with cervical spine surgery . . . ." But the record contains evidence Saar had been in a car accident in 2000 resulting in neck pain severe enough for him to go to the hospital and obtain an x-ray. Additionally, he did not complain of pain at the scene of the accident in this case.
Plaintiffs also note their biomechanics expert, John R. Brault, testified "a mechanism in this rear-end collision [was] consistent with creating" cervical injuries. At the same time, Brault acknowledged he had no opinion regarding whether Saar actually sustained a disk or neck injury, "[j]ust that there is a mechanism."
Plaintiffs' arguments amount to nothing more than a request that this court reweigh the evidence, which we will not do. Resolving all conflicts and reasonable inferences in favor of defendant as the prevailing party as we must (Scott v. Pacific Gas & Electric Co. (1995) 11 Cal.4th 454, 465, disagreed with on another ground in Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 352, fn. 17), we conclude substantial evidence supports the judgment.
2. Misconduct by Defense Counsel
Plaintiffs argue defendant's counsel committed misconduct by asking questions informing the jury Saar had a disability insurance policy in violation of the collateral source rule even after objections had been sustained, blurting out in court he had seen Ruth Saar signal answers to Saar while he was on the stand, and making 37 improper statements during closing argument.
As to the latter, plaintiffs claim counsel erroneously argued to the jury "the existence of degenerative disease or the aging process entitled them to . . . find . . . Saar was not caused harm by the accident," contrary to the court's instruction defendant was liable if the accident aggravated a preexisting condition or a preexisting condition made Saar more vulnerable to injury. They also assert it was error to inform the jury either that "harm" was limited to "a spinal cord injury, myelopathy; . . . a disk injury; . . . a nerve root injury[;] and . . . [h]ead-related symptoms" or that plaintiffs were required to present expert testimony from a surgeon, radiologist, and someone specializing in Benson's Syndrome. Other alleged misconduct during closing argument included "[g]iving personal opinions, making reference to out of court matters, referring to testimony of a witness who never testified and was unavailable, reading inadmissible hearsay from medical and engineering records, providing personal medical and engineering opinions, and inviting the jury to speculate and reach conclusions based on matters that were not part of the evidence in the courtroom."
But plaintiffs failed to raise any objections, much less request admonitions, during closing argument, forfeiting their claim. "Misconduct of counsel in argument may not be raised on appeal absent a timely objection and request for admonition during trial unless the misconduct was too serious to be cured. [Citations.]" (Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 130.)
Acknowledging this rule, plaintiffs maintain their contention is not waived because there were "flagrant and repeated instances of misconduct." In both of the cases they cite, however, the defense counsel unsuccessfully objected to many instances of the purported misconduct and requested admonitions, which were often refused or, if given, were inadequate. (Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal.App.3d 341, 355; Love v. Wolf (1964) 226 Cal.App.2d 378, 391-392.) That did not happen during closing argument here.
Plaintiffs assert "many . . . instances of misconduct that occurred during defense counsel's closing argument[] were matters that had originated during witness examination, for which timely objections were made . . . ." They also note each party was "only allowed approximately 30 minutes for closing argument." But they offer no authority for their apparent proposition that either reason justifies the failure to object or request admonitions during the opposing party's closing argument. The claim is forfeited. (Evans v. CenterStone Development Co. (2005) 134 Cal.App.4th 151, 165.)
Plaintiffs' admission the court sustained at least some of their objections during witness examination belies any claim the court was unwilling to sustain objections or admonish the jury. They also have not demonstrated the claimed misconduct was so aggravated, "repeated and resounding" that objections and requests for admonition would have been ineffective, alienated the jury, or rerung the bell. (Jensen v. BMW of North America, Inc., supra, 35 Cal.App.4th at p. 130; Menasco v. Snyder (1984) 157 Cal.App.3d 729, 733; Love v. Wolf, supra, 226 Cal.App.2d at p. 392.) To the contrary, their failure to request admonitions, move for a mistrial, or raise any objection during closing argument underscores that plaintiffs did not consider defense counsel's acts to be egregious misconduct, as they now characterize it on appeal. (Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 212.) We are not persuaded the alleged misconduct was so egregious as to relieve plaintiffs of their obligation to request an admonition and deem the issue forfeited. (Whitfield v. Roth (1974) 10 Cal.3d 874, 892.) Plaintiffs may not decide as a tactical matter not to object or request admonitions, await the outcome of trial, and then claim misconduct if the verdict goes against them.
Regarding plaintiffs' claim defense counsel improperly informed the jury through his questioning that Saar had disability insurance, the court sustained all but the last objection. Plaintiffs never requested an admonition. They contend they were foreclosed from doing so because the court overruled their final objection and thus they did not forfeit their claim. We disagree. They offer no explanation how the overruling of their objection to the last question precluded them from asking the court to admonish the jury on the disability claim questions prior to that. Nor have they demonstrated the court erred in overruling their objection to the last question of whether "Dr. Park [told] [Ruth Saar] that he was sending [Saar] to Dr. Mendez because he was concerned of issues of secondary gain[]" or how that implicates the collateral source rule.
Plaintiffs also argue they did not forfeit the issue of defense counsel's exclamation about the signaling between plaintiffs while Saar was on the stand because the court overruled their objections and denied their motion to strike. While not forfeited, the claim lacks merit. Plaintiffs assert defense counsel's conduct violated Rule 5-200(E) of the Rules of Professional Conduct that a member of the Bar "[s]hall not assert personal knowledge of the facts at issue, except when testifying as a witness" and Business and Professions Code section 6068, subdivision (f), prohibiting an attorney from advancing any "fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he or she is charged." But here defense counsel was not asserting facts regarding the subject matter of the case and had an obligation to raise the issue of spectator misconduct or risk waiving the issue. (People v. Hill (1992) 3 Cal.4th 959, 1000, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
Plaintiffs maintain it was improper to "blurt out in open court, in the presence of the jury," "without previous consultation with other counsel[] or the court" "any fact . . . where such spontaneous accusation might create prejudice to the case, or to a particular party. Normally such issue is raised outside of the jury's earshot, and a court could then, with due deliberation, decide how to investigate, admonish or deal with the allegation." The contention is forfeited by plaintiffs' failure to cite any supporting authority or explain how they were prejudiced. (Evans v. CenterStone Development Co., supra, 134 Cal.App.4th at p. 165.) As the trial court reasoned in overruling plaintiffs' objection, the jury could verify for itself and reasonably consider whether someone was signaling a witness testifying under oath on the stand. Plaintiffs have not shown the court erred in so ruling or that defense counsel committed misconduct.
DISPOSITION
The judgment is affirmed. Defendant shall recover her costs on appeal.
RYLAARSDAM, ACTING P. J. WE CONCUR: BEDSWORTH, J. O'LEARY, J.