Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura, Super. Ct. No. CIV 230970 Vincent J. O'Neill, Judge
Law Offices of John H. Howard, John H. Howard, Gregory Phillips; Lascher & Lascher and Wendy C. Lascher for Plaintiff and Appellant.
Knapp, Petersen & Clarke, Stephen C. Pasarow, Robert D. Brugge and Maria A. Grover for Defendant and Respondent
COFFEE, J.
Michael Toll appeals from the judgment entered after jury trial. The jury, by special verdict, found that respondent Irwin Ginsburgh was not negligent in a collision between appellant's motorcycle and respondent's car. He contends it was error to allow the testimony of respondent's expert and to limit evidence of medical expenses, and that there was prejudicial juror misconduct. We affirm.
FACTS
Appellant drove his motorcycle westbound on Highway 118. Respondent, with his wife, drove his Pontiac southbound on La Cumbre Road, toward the "T" intersection with Highway 118. Respondent stopped at the intersection, and turned left onto eastbound Highway 118. Appellant swerved his motorcycle into the eastbound lane and hit the right front of respondent's Pontiac with the right front of his motorcycle. Appellant was thrown to the shoulder of the eastbound lane. Respondent's car sustained damage to the right front passenger side.
Respondent and his wife testified that before they entered the intersection they stopped and looked both ways and did not see appellant approaching. As they crossed the center of the highway to turn left into the eastbound lane, a single bright light approached in the westbound lane and then switched into the eastbound lane, coming toward them. Respondent's wife first saw the light coming toward them after they had turned into the eastbound lane. Respondent stopped the car, and then they felt the motorcycle hit the right front of their car.
Appellant testified that he was traveling 45 miles per hour westbound on Highway 118 when the Pontiac pulled into the intersection in front of him and stopped. He moved to the left. When he was within two to three football fields of the Pontiac, it moved again and he crossed the center divider, into the eastbound lane, to avoid it. He did not have time to stop.
Appellant's expert, Marc Firestone, testified that appellant was traveling in the westbound lane and cut across the center island and that the impact occurred in the eastbound lane close to the center double yellow line.
Respondent's expert, Donald Miller, testified that appellant was traveling between 45 to 75 miles an hour before the collision and he could have avoided it if he had slowed, stayed in the westbound lane or steered his motorcycle slightly to the right around the Pontiac. Miller testified that if the collision had occurred as appellant described it, the damage pattern would have been different. In rebuttal, Firestone criticized Miller's methodology, which Miller defended in sur-rebuttal.
The jurors returned a 10-2 verdict finding that respondent was not negligent. The court entered judgment for respondent and denied appellant's motion for new trial.
DISCUSSION
Expert Testimony
Appellant contends that the court erred when it denied his motion to exclude Miller's testimony, because Miller's opinion was based on speculation and upon a method that is not generally accepted in the scientific community. We disagree.
Appellant argued that Miller could not reliably estimate speed using photographs to determine the extent of "crush" damage. Firestone offered a declaration challenging Miller's "crush analysis." The declaration did not establish that Miller used a new scientific technique that would require a preliminary showing of general acceptance in the scientific community. (People v. Kelly (1976) 17 Cal.3d 24.)
It is within the sound discretion of the trial court to determine whether the foundational requirements for an expert opinion have been met. (People v. Ramos (1997) 15 Cal.4th 1133, 1175.) That discretion is broad and will not be disturbed on appeal absent a manifest abuse. (Ibid.) The court did not abuse its discretion when it determined that Firestone's criticisms went to the weight of Miller's opinion, and not its admissibility.
At trial, Miller testified that appellant was traveling between 45 and 70 miles an hour when he first saw the respondent's car, and 33 miles an hour upon impact. He testified that the Pontiac was traveling 16 miles per hour upon impact. Miller based his speed estimates on photographs of the damage to the Pontiac, the strength of the Pontiac's bumper, the mass of the vehicles, data from the National Highway Traffic Safety Administration, the repair estimate and measurements taken at the scene by investigating officers. He did not personally inspect the vehicle or the scene.
Firestone testified that there was no way to calculate whether the Pontiac was stationary or moving at the time of impact. He testified that impact speed cannot be calculated without a reliable crush analysis, which in turn requires physical measurements of the damage or photogenic analysis which Miller did not do. Firestone said Miller should have included the motorcycle's speed in his calculations and should have taken into account the distance that appellant flew in the air. Firestone testified that the evidence underlying Miller's assumptions about point of departure, point of impact and rate of acceleration was uncertain.
In sur-rebuttal, Miller testified that Firestone's crush analysis is appropriate only where there is significant structural damage, and there was not significant structural damage in this case. Miller testified that he treated the motorcycle as stationary because that was a worst-case scenario for respondent. He explained that if the motorcycle's speed were included appellant would have had more time to perceive and react to avoid the collision. Miller testified that appellant's flight through the air was not material to his calculations because appellant was pinned between the motorcycle and car before he was thrown, as evidenced by his injuries.
We agree with the trial court that appellant's criticisms of Miller's methodology went to the weight of Miller's testimony rather than its admissibility. The court was well within its discretion to admit the testimony, and afforded appellant a full and fair opportunity to attack it through cross-examination and rebuttal.
Exclusion of Medical Bills
Appellant's medical bills totaled $130,000, but he was responsible for paying only $39,000. Appellant contends that the court abused its discretion and undermined his credibility when it limited evidence of his medical expenses to $39,000. We disagree because medical bills greater than $39,000 were not relevant to any issue in dispute.
Only relevant evidence is admissible, and the court may exclude evidence that is more prejudicial than probative. (Evid. Code, §§ 350 & 352.) Only medical expenses actually paid by appellant or on his behalf were recoverable. (Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 643.) Appellant stipulated that only $39,000 was recoverable. He argued to the trial court that the total bills should nevertheless be admitted as a "barometer" for the jury to calculate his non-economic damages. He argues to this court that the total bills were necessary to support his credibility. The bills exceeding $39,000 were not relevant to any issue in dispute, and the trial court was within its discretion to exclude them.
Juror Misconduct
Appellant contends he is entitled to reversal based on juror misconduct. We reject the claim.
We accept the trial courts' credibility determinations and findings of fact if supported by substantial evidence on the question whether juror misconduct occurred. We determine whether any prejudice resulted by independent review. (People v Majors (1998) 18 Cal.4th 385, 417.)
In support of his motion for new trial, appellant offered a juror affidavit stating that three jurors "indicated their decision in the case" before the court instructed the jury. The juror does not assert that this occurred before the close of evidence. Moreover, the affidavit is not admissible to establish the jurors' thought processes. (Evid. Code, § 1150.) Substantial evidence supports a finding that no misconduct occurred.
According to a second affidavit, a juror said in deliberations that a driver has the right of way after turning into an intersection. She said she learned this while helping her son prepare for his driving test. Jurors' views are necessarily informed by their life experiences, and it does not appear that the juror injected specialized knowledge with a claim of expertise. (In re Malone (1996) 12 Cal.4th 935, 963.) The statement is not of such a character as to have influenced the jurors improperly. (Evid. Code, § 1150.) Even if the comment were misconduct, the presumption of prejudice would be rebutted because we presume the jury followed the instructions to decide the case only on the evidence and law presented. (Romo v. Ford Motor Co. (2002) 99 Cal.App.4th 1115, 1132, overruled on other grounds People v. Ault (2004) 33 Cal.4th 1250, 1272, fn.15.)
The judgment is affirmed. Costs on appeal are awarded to respondent.
We concur: GILBERT, P.J., PERREN, J.