Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. CV248431 John I. Kelly, Judge.
Blakely Law Group, and Brent H. Blakely, and Law Offices of Timothy J. Lemucchi, and Timothy J. Lemucchi, for Plaintiffs and Appellant.
Wood, Smith, Henning & Berman, Patrick S. Schoenburg, Andrew A. Magwood, Victoria L. Ersoff and Steve Hun Kim, for Defendant and Respondent.
OPINION
Ardaiz, P.J.
Appellants Thomas Brown and Jacob Wilson worked at a power plant construction site in McKittrick, California. They contracted the infectious disease Coccidioidomycosis, commonly called “valley fever.” They sued respondent Alstom Power, Inc. (Alstom), the general contractor on the project. Appellants’ second amended complaint included causes of action for negligence and deceit. It alleged that Alstom negligently failed to warn appellants of the danger of contracting valley fever, negligently failed to take precautions to minimize appellants’ exposure to the fungus that causes the disease, and intentionally and purposefully concealed from appellants the risk of contracting valley fever at the worksite.
About the only thing the parties agreed on at the five-week trial was that Brown and Wilson did contract valley fever. Appellants and Alstom disagreed on whether appellants contracted the illness at the worksite, whether Alstom took reasonable steps to warn of and protect against contracting the illness, and the extent of appellants’ injuries as a result of their valley fever. The jury’s special verdict concluded that appellants had failed to demonstrate they contracted the illness at the worksite. Judgment was entered for the defendant.
Appellants contend that the trial judge erroneously excluded several items of evidence. We will list and then address these contentions in more detail below, after a brief restatement of the facts presented at trial. As we shall explain, appellants have failed to demonstrate any prejudicial error. We will affirm the judgment.
FACTS
This matter arises from the construction of the La Paloma power plant in McKittrick, California, between 2000 and 2002. Defendant Alstom was the general contractor for the project. Appellants Wilson and Brown were employees of Maxon Enterprises, a subcontractor retained by Alstom. Wilson and Brown contracted valley fever during a period of time when they were employed at the La Paloma site between 2001 and 2002.
Valley fever is a windborne infection of the lung and is caused by inhalation of the fungus coccidioides immitis. The fungus is found in soil throughout the southwestern part of the United States, in the form of spores that are often disbursed into the air. Valley fever is endemic to the entire Kern County area. Because valley fever is a windborne disease, an individual can become infected anywhere in Kern County. The disease affects approximately two-to-four percent of the general population of Kern County every year. No evidence was presented that anyone ever tested the soil at the La Paloma site for the presence of the cocci fungus. Appellants relied upon circumstantial evidence and expert testimony to try to establish that they were infected at that location. Appellants testified that prior to their diagnosis, they typically worked 10 to 13 hours a day, six days a week at the site. During that time period, appellants claimed that the working conditions on the construction site were extremely dusty. Appellants also claimed that the location of the La Paloma site was in a “hyper-endemic” area for valley fever.
Based upon these assertions, appellants’ infections disease expert, Dr. Royce Johnson, estimated that there was a 75 percent chance that Wilson and Brown contracted valley fever at the La Paloma site.
Appellants also offered the testimony of Emma Chaput. Chaput was an epidemiologist for the Kern County Department of Public Health. Chaput testified that her statistical analysis of incident rates of valley fever revealed that Wilson and Brown likely acquired valley fever at the La Paloma site rather than elsewhere in Kern County. Her opinion was based upon information that: (1) the La Paloma site was located in the western part of Kern County where incident rates of valley fever are higher; (2) appellants were originally from outside the endemic area, increasing their risk of infection; (3) conditions at the La Paloma site were dusty; (4) appellants worked in construction, an occupation with a higher risk for valley fever; and (5) while in Kern County, the majority of appellants’ time was spent working at the La Paloma site.
Despite their conclusions, Johnson and Chaput admitted the possibility that exposure to the cocci fungus elsewhere in Kern County could have caused appellants’ valley fever. They also conceded that there is little evidence supporting a correlation between specific occupations, such as construction work, and the incidence rate of valley fever. Past studies have not shown a correlation between dusty occupations and valley fever.
Appellants’ own treating physicians, Dr. Syed Alam and Der. Byron Mui, testified that it is nearly impossible to determine where a given person became infected with valley fever.
Alstom’s expert, Dr. Babtunde Jinadu, was the director of Public Health Services with the Kern County Department of Health. He had held that position for the past 17 years. Jinadu testified that one cannot determine where a given individual contracted valley fever. Contrary to Johnson’s testimony, Jinadu testified that there are simply no areas of Kern County which are hyper-endemic for valley fever. Rather, valley fever is a windborne phenomenon, with the disease causing fungus to spread to all parts of Kern County. It is possible to contract valley fever simply driving down the highway in Kern County. Further, there is no known correlation between construction and the reporting of valley fever cases. To conclude that an individual contracted valley fever from a particular location based upon where that person worked would be presumptuous in Dr. Jinadu’s opinion.
Defendant’s industrial hygienist, Jeffrey Hicks, similarly testified that it was impossible to determine where the appellants contracted valley fever. Unlike other diseases which have been defined as occupational in nature, valley fever cannot be correlated with any particular occupation due to its widespread occurrence, particularly in Kern County.
Wilson and Brown sought to introduce at trial a 2003 stipulation between Alstom and four individuals who were not parties to this trial – Matthew Laughlin, Raymond Marks, Randy Quinn and P. Richard Ramsahai. The stipulation stated:
“For purposes of this Stipulation, Defendant, Alstom Power, Inc., agrees that it is more likely than not each of the four referenced Plaintiffs inhaled Valley Fever spores while working on site at the La Paloma Power Plant Project. [¶] In exchange, the above-referenced plaintiffs agree they will not seek to recover punitive damages from Defendant, Alstom Power, Inc., only.”
The trial court granted Alstom’s motion in limine to exclude evidence of the stipulation.
APPELLANTS’ CONTENTIONS
Appellants contend that the trial court erred in excluding from evidence: (1) the above-quoted stipulation between Alstom and four other individuals who had sued Alstom; (2) testimony from one of Wilson’s treating physicians, Dr. Syed Alam, about other workers who contracted valley fever while working at the La Paloma project; (3) testimony from one of appellants’ experts, Dr. Richard Perrillo, “regarding causation;” (4) testimony by appellants’ expert, Dr. Royce Johnson, “regarding the neuropsychological testing conducted by Dr. Perrillo and Dr. Bilder;” (5) the testimony and report of a Dr. Matthew J. Reinhard; and (6) testimony from appellants’ expert epidemiologist, Dr. Emma Chaput, “regarding an analysis obtained from the Kern County Health Department identifying 17 other individuals who contracted valley fever while working on the La Paloma worksite in 2001 and 2002.” We will restate some general principles of appellate review and then address each of these alleged errors.
STANDARD OF REVIEW
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: [¶] (a) [t]he substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means; [¶] (b) [t]he rulings of the court made compliance with subdivision (a) futile; or [¶] (c) the evidence was sought by questions asked during cross-examination or recross-examination.” (Evid. Code, § 354; see also Cal. Const., art. VI, § 13.)
A “‘miscarriage of justice’ should be declared only when the 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.” (People v. Watson (1956) 46 Cal.2d 818, 836; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800; in accord, see also Elsner v. Uveges (2004) 34 Cal.4th 915, 939.) “We have made clear that a ‘probability’ in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility. [Citations.]” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 715; in accord, see also Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 682.) This “so-called Watson standard applies generally to all manner of trial errors occurring under California law, precluding reversal unless the error resulted in a miscarriage of justice.” (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 801; see also Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.) Thus, “[a]lthough the Watson standard is most frequently applied in criminal cases, it applies in civil cases as well.” (Cassim v. Allstate Ins. Co., supra, 33 Cal.4th at p. 801.)
“There shall be no presumption that error is prejudicial, or that injury was done if error is shown.” (Code Civ. Proc., § 475.) “[W]e cannot presume prejudice and will not reverse the judgment in the absence of an affirmative showing there was a miscarriage of justice. [Citations.] Nor will this court act as counsel for appellant by furnishing a legal argument as to how the trial court’s ruling was prejudicial. [Citations.]” (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.) This last principle is particularly applicable here. Appellants’ opening brief contains no argument whatsoever as to how the alleged errors were prejudicial. We note in this regard that evidence presented at trial showed two percent to four percent of the general population of Kern County was affected by valley fever each year, but of the 2,160 persons who worked at the La Paloma project, there was no evidence that more than two-to-four percent of these workers (i.e., approximately 40 to 80 persons) became ill with valley fever. The evidence was that eight La Paloma workers contracted the disease. Even if we were to accept the argument appellant now makes that the court erroneously excluded evidence of 17 more such cases, this would still be far less than two percent of the La Paloma workers, and thus it still seems doubtful that the jury would have concluded working at the La Paloma site was the cause of appellants’ illness.
As for the correctness of any particular evidentiary ruling itself, “[b]roadly speaking, an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence.” (People v. Waidla (2000) 22 Cal.4th 690, 717; in accord, see also City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900.) “‘Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566.)
I.
THE STIPULATION
Four individuals (Matthew Laughlin, Raymond Marks, Randy Quinn and Richard Ramsahai) sued Alstom in another action (hereinafter the Laughlin action). In December of 2003 the Laughlin action was consolidated with this action (the Wilson and Brown action). The record on appeal does not appear to indicate what became of the Laughlin action, but the Wilson and Brown action was tried by itself, and the judgment in the Wilson and Brown action was a judgment in the Wilson and Brown action only. In April of 2003, several months before the Wilson and Brown action was consolidated with the Laughlin action, the four Laughlin plaintiffs entered into a stipulation with Alstom in the Laughlin action. Under the terms of the stipulation, “Alstom … agrees that it is more likely than not each of the four referenced Plaintiffs inhaled Valley Fever spores while working on site at the La Paloma Power Plant Project” and “[i]n exchange, the above-referenced Plaintiffs agree they will not seek to recover punitive damages from … Alstom ….” The stipulation also states that the parties to the stipulation “hereby enter into this Stipulation in an effort to reduce the costs presented by discovery in this action, as well as trial preparation and trial time.”
At the outset of the trial in the present action (the Wilson and Brown action), Alstom moved in limine to exclude this stipulation from evidence and to bar any mention of it in the Wilson and Brown trial. Alstom argued that the stipulation was irrelevant to any issue in the Wilson and Brown trial, that it was inadmissible under Evidence Code section 1152, subdivision (a) as a negotiation or settlement of claims made by the Laughlin plaintiffs, and that if the stipulation did have any relevance, its probative value was substantially outweighed by the probability that its admission would create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. (Evid. Code, § 352.) The court heard argument on the motion, took it under submission, and later granted it.
The court did not err in excluding the stipulation from evidence in this trial. The stipulation was, on its face, a settlement of the Laughlin plaintiffs’ claims for punitive damages against Alstom. It was therefore inadmissible as evidence of Alstom’s alleged negligence. “It appears to be the prevalent rule in California and in the other states of the Union that in actions for personal injuries arising out of negligence evidence of a settlement with another claimant for injuries caused by the same tort alleged by plaintiff, not connected up with any act admitted by the defendant and which shows his liability for the accident, is clearly irrelevant and therefore inadmissible. [Citations.] It is contrary to public policy to subject a person who has compromised a claim to the hazard of having his settlement proved in a subsequent lawsuit by another person asserting a cause of action arising out of the same transaction. To receive such evidence would inevitably tend to discourage settlements out of court if one’s purchase of his peace with one person were to be thereafter taken as an admission of his liability for an occurrence which brought injury to another. Reasonable and compelling circumstances might very well influence the defendant to make settlement with the third person while denying all liability to plaintiff. No party to a justiciable controversy should be discouraged from amicably adjusting his claim by the fear that he might subsequently be confronted with the contention that his concession there was an admission of liability.” (Brown v. Pacific Electric Ry. Co. (1947) 79 Cal.App.2d 613, 616-617. See also Zelayeta v. Pacific Greyhound Lines (1951) 104 Cal.App.2d 716, 729 [evidence of Greyhound’s settlement of the claims of bus passengers “was not admissible as an admission that Greyhound was liable for” death of plaintiff’s decedent killed in same bus crash]; Price v. Atchison, T. & S.F. Ry. Co. (1958) 164 Cal.App.2d 400 [evidence of defendant railway company’s settlement with passenger injured in train derailment not admissible in personal injury action brought by another passenger, even when the settlement included a stipulation for entry of a judgment in favor of the settling passenger and against the railway company]; and Burke v. Hibernia Bank (1960) 186 Cal.App.2d 739 [evidence of bank’s settlement with one claimant inadmissible as evidence of bank’s liability to another claimant]. See also 1 Witkin, Cal. Evidence (4th ed. 2000) Circumstantial Evidence, §150, p. 499: “Ev. C. 1152 … applies to an offer ‘to another who has sustained or claims to have sustained loss or damage.’ This language sufficiently covers the third-party settlement in the Brown case, supra.”
Appellants rely on Gonzales v. Pacific Greyhound Lines (1950) 34 Cal.2d 749 (Gonzales), McCoy v. Board of Retirement (1986) 183 Cal.App.3d 1044 (McCoy), and Nungaray v. Pleasant Valley Etc. Assn. (1956) 142 Cal.App.2d 653.) These cases appear to us to be distinguishable from the present case.
Gonzales was a wrongful death case arising from an automobile accident. The decedent’s taxicab crashed into a Greyhound bus. Three alleged heirs sought wrongful death damages from defendant Pacific Greyhound. The defendant “stipulated as to liability for the accident, leaving for determination only the issues of heirship and the amount of damages.” (Gonzales, supra, 34 Cal.2d at p. 751.) In a court trial, two of the alleged heirs recovered. The court found that the third alleged heir, Kenneth David Gonzales, was not the child of the decedent. The court then granted Kenneth’s motion for a new trial. “The second trial, which was confined solely to the rights of plaintiff Kenneth David Gonzales, was had before a jury.” (Ibid.) At the second trial, the defendant refused to stipulate to its liability for the accident. The plaintiff argued that the stipulation was binding. The defendant “objected to the competency of the stipulation as evidence, upon the theory that it had no biding force beyond the first trial,” and “[w]ith this proposition the trial court agreed ….” (Id. at p. 755.) The jury then returned a verdict in favor of the defendant. The California Supreme Court ruled that the trial court erred. “‘In California a valid stipulation is binding upon the parties. [Citations.] It is available at a second trial unless in terms otherwise limited [citations], and will be controlling at the second trial unless the trial court relieves a party from the stipulation. [Citation.] Relief from a stipulation may be granted in the sound discretion of the trial court in cases where the facts stipulated have changed, there is fraud, mistake of fact, or other special circumstance rendering it unjust to enforce the stipulation. [Citations.]’” (Gonzales, supra, 34 Cal.2d at p. 755.) In the case presently before us, there is no stipulation whatsoever between Alstom and appellants Wilson and Brown. Alstom entered into a stipulation with the four Laughlin plaintiffs in the Laughlin action. The present case is not a “second trial” of the Laughlin plaintiffs’ action against Alstom. (Gonzales, supra, 34 Cal.2d at p. 755.) It is the action brought by Wilson and Brown against Alstom. Gonzales is simply inapplicable here. Nothing in Gonzales even addresses the issue of the admissibility, at the trial of A versus B, of a stipulation made by B in some other case and with someone other than A.
In McCoy, supra, a Los Angeles County employee who suffered from hypertension sought a service-connected disability retirement allowance from the Board of Retirement of the Los Angeles County Employees Retirement Association (the Retirement Board). In order to qualify for a service-connected disability retirement allowance, the employee had to demonstrate that his disability arose out of and in the course of his employment. The Retirement Board denied the disability was service-connected, and granted him a less favorable nonservice-connected disability retirement. He brought an administrative mandamus petition in superior court seeking an order directing the Retirement Board to grant him a service-connected disability retirement allowance. He had previously filed an application for adjudication of claim with the Workers Compensation Appeals Board (WCAB). On the WCAB claim, the employee and his employer (the County) entered into “two stipulations … to the effect that 75 percent of the aggravation to McCoy’s hypertension was caused by industrial stress.” (McCoy, supra, 183 Cal.App.3d at p. 1048.) One of these two stipulations expressly stated that the employee had “‘sustained injury arising out of and in the course of employment to his … vascular system in the form of hypertension aggravation,’ … 75% due to industrial factors ….” (Id. at p. 1050, fn. 3.) The Retirement Board refused to consider the stipulations made in the WCAB proceedings. The Retirement Board’s position was that “because it has no control over or right to consult in the County’s decisions on workers’ compensation matters and investigations, it is irrelevant that the County stipulated that the aggravation to McCoy’s hypertension was 75 percent job related.” (Id. at p. 1053.) We note in this regard that a county and a county retirement board are separate entities, and a county retirement board is not an agent for the county. (Traub v. Board of Retirement (1983) 34 Cal.3d 793, 798.)
“At the hearing on McCoy’s petition for writ of mandate, the trial court properly undertook to base its findings on its independent judgment of the weight of the evidence in the administrative record. [Citations.] The trial court found that the [Retirement Board] referee had erroneously excluded the stipulations and admitted them in evidence, over the board’s objection, on the ground of relevance. [Citation.]” (McCoy v. Board of Retirement, supra, 183 Cal.App.3d at p. 1052, fn. omitted.) The superior court “found that the weight of the evidence supported the conclusion that the hypertension was service connected” and ordered issuance of the writ. (Ibid.) The appellate court affirmed the judgment of the superior court, and Mr. McCoy thus obtained his service-connected disability retirement allowance.
The rationale of the McCoy decision appears to be as follows. Even though the County and the Retirement Board were separate entities and the County’s stipulations with Mr. McCoy were not binding on the Retirement Board (McCoy, supra, 183 Cal.App.3d at p. 1048, fn. 2), and even though the stipulations were in essence a hearsay statement by a non-party (the County) that the employee’s hypertension was industrially caused, the superior court acted within its discretion in determining that the stipulations possessed a tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (McCoy, supra, 183 Cal.App.3d at p. 1055.) And because the Retirement Board’s procedural rules provided that “[a]ny relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection and [sic] civil actions’” (McCoy, supra, 183 Cal.App.3d at p. 1053), the superior court did not err in admitting the stipulations even though the Retirement Board refused to do so at the administrative hearing. Even if we assume that the rationale of McCoy is sound, the case is not helpful to appellants because it in no way repeals, disputes or even addresses the rule that a party’s settlement of a claim may not be used in later litigation as evidence of the party’s liability on another claim.
In Nungaray v. Pleasant Valley Etc. Assn., supra, 142 Cal.App.2d 653, the plaintiff was injured when a truck loaded with lima beans was being unloaded at a warehouse. The truck was backed onto a platform and the front was then elevated by a hydraulic lift so that the beans in the truck would slide backward into a bin. The plaintiff was injured when the rear wheels of the truck “jumped over” some blocks that were supposed to hold the rear wheels in place during the unloading. The defendants were the warehouse owner (Pleasant Valley) and its warehouse manager (Croker). The plaintiff’s theory was that he had simply followed the directions of Croker, and that the proper placing of the truck and the blocks were therefore the defendants’ responsibility. The plaintiff obtained a jury verdict and judgment in his favor. One of the issues at trial appears to have been who was responsible for the proper placement of the truck onto the platform. Croker testified “‘I deny I showed him how to back up.’” (Id. at p. 668.) Croker also “testified he did not direct plaintiff to the particular platform, that plaintiff selected it himself.” (Id. at p. 665.) Plaintiff’s counsel offered in evidence, and the court received, a stipulation made by Croker and Pleasant Valley in an insurance coverage action they were litigating against two insurance companies. “That cause was submitted to the court for decision on a written stipulation of facts.… The stipulation stated that if plaintiff in this action were called as a witness in that action he would testify he was directed to back his truck onto the particular platform by Croker. There was nothing in the stipulation to the contrary, nor was it stated that Croker denied he directed plaintiff onto the particular platform.” (Id. at p. 665.) In short, the defendants took the position in the coverage dispute that they were responsible for the placement of the truck on the platform, and took the opposite position at the personal injury trial. The appellate court agreed that the trial court did not err in admitting the stipulation into evidence. The case stands for the unremarkable proposition that the admission of a party is admissible in evidence against that party. (Id. at p. 666.) Alstom has never admitted, however, that Wilson or Brown more likely than not inhaled valley fever spores while working at the La Paloma site. The stipulation offered by Alstom is not such an admission. Nor does anything in Nungaray address the rule that evidence of a defendant’s settlement with one claimant is inadmissible as evidence of the defendant’s liability to another claimant.
At oral argument appellant contended that the case of Dolinar v. Pedone (1944) 63 Cal.App.2d 169, required the court to admit the stipulation into evidence. We are not persuaded. In Dolinar a man named Bowman stopped his car to assist two young women whose car had gone over an embankment. Bowman parked his car in such a way that “approximately one-half of its width extended on to the paved portion of the highway.” (Id. at p. 172.) A second car driven by Coleman and carrying three passengers (Frank, Mildred and Norman Dolinar) collided with Bowman’s parked car. A third car operated by Pedone then collided with Coleman’s car. This last collision caused injuries to Mildred and Norman Dolinar and fatally injured Coleman. The injured Dolinars sued Bowman, Bowman’s employer (Universal Film Exchange, Inc., hereinafter Universal) and Pedone. One of the issues in the case was whether Bowman was acting within the scope of his employment at the time of the accident. The jury concluded that he was, and the plaintiffs obtained a jury verdict and judgment in their favor. On appeal, Universal argued that the trial court had erred in admitting into evidence an answer filed by Universal “in another case arising out of the same accident.” (Dolinar v. Pedone, supra, 63 Cal.App.2d at p. 176.) “The answer of the defendant corporation in the pleadings so introduced did not deny the allegations of the complaint therein, which alleged that Bowman at the time of the accident was acting within the scope of his employment.” (Ibid.) The appellate court found no error. “It may be stated as a general rule that a pleading containing an admission is admissible against the pleader in a proceeding subsequent to the one in which the pleading is filed. [Citations.] This is true even on behalf of a stranger to the former action. [Citation.]” (Ibid.) In Dolinar the employer had admitted in pleadings filed in “another case arising out of the same accident” (ibid.) that Bowman was acting within the scope of his employment at the time of the accident. In the case before us, however, Alstom has never admitted that it was more likely than not that appellants Wilson and Brown contracted valley fever at the La Paloma worksite. The stipulation that appellants sought to introduce into evidence was not such an admission. Nor does Dolinar even address the rule that evidence of a defendant’s settlement with one claimant is inadmissible as evidence of the defendant’s liability to another claimant.
II.
DR. ALAM’S TESTIMONY
Dr. Syed Alam was a treating physician of appellant Jacob Wilson. He was called by the plaintiffs to testify about his diagnosis of Wilson for valley fever (Coccidioidomycosis) and his treatment of Wilson for that illness. He did not offer any opinion on where Wilson contracted valley fever. On cross-examination he testified, among other things, that he had seen several hundred valley fever patients since beginning his Bakersfield medical practice in 1997, that he saw at least two or three patients for valley fever every month, that valley fever is endemic to Kern County and to areas of Arizona and New Mexico where the San Joaquin River flows or used to flow (the “San Joaquin belt,” and that roughly three percent of the population of Kern County gets valley fever every year. He further testified as follows:
“Q. Now, we have talked about a number of medical diagnostic tests. Can any of those tell you where a person has become infected with Valley Fever?
“A. It’s next to impossible to say that.
“Q. All right. Do you know of any type of testing that can be done to determine where a person has become infected with Valley Fever?
“A. Theoretically you can say that. You can locate the soil and test it.
“Q. So soils testing.
“A. (Nods head.)
“That’s true.
“Q. Um
“A. But it’s not a regular practice.
“Q. Okay. Well, is it a – in your experience the job of a treating physician to conduct an investigation to determine where an infection has occurred?
“A. No. We report it to public health.
“Q. All right. Do you know of any agency that does conduct investigations to determine where an infection has occurred?
“A. Not that I know of.
“Q. Would the Kern County Health Department be an agency that conducts such investigations?
“A. Probably, yes. That’s why we are required to report it to them.
“Q. Based on your practice in this area, do you know in what areas a person can become infected with Valley Fever?
“A. It’s called that – the San Joaquin belt; so wherever the San Joaquin River flows in California, and then Arizona, New Mexico, Mexico, those are the places that are known for Valley Fever.
“Q. Okay. So – you mentioned a couple of states.
“Did you say the San Joaquin Valley?
“A. The river, San Joaquin River.
“Q. Where the river is at?
“A. Well, in – and – in the past, there used to be a river flowing; so they named that belt the San Joaquin River.
“Q. Okay. Would that include the entirety of Kern County?
“A. That’s true.
“Q. All right. Is there anyplace you can go in Kern County and breathe the air and be a hundred percent sure that you’re not going to inhale a Cocci spore?
“A. No.”
On redirect examination the following then occurred:
“BY MR. LEMUCCHI:
“Q. Dr. Alam, you were asked questions about do you know whether – where Mr. Wilson became infected. You didn’t do any independent research and find out where he inhaled these spores?
“A. No, we didn’t.
“Q. Okay. Was it your understanding that he was working at a plant somewhere near Taft?
“A. That’s true.
“Q. And during the period of time you were treating Mr. Wilson did you have other patients who came to see you because they became infected with Valley Fever working in the same location?
“A. Yes.
“MR. AMUNDSON: Well, objection, your Honor; 352. Sidebar?
“THE COURT: Okay. We’ll have a sidebar conference.
“(A conference was held in chambers from 11:14 a.m. until 11:21 a.m., which was not reported.)”
When redirect examination resumed, it turned to other topics.
Appellants now contend that the trial court “refused to allow Appellants to question a witness at trial, Dr. Syed M. Alam, regarding his knowledge of other La Paloma Project employees, besides Appellants, who contracted Valley Fever.” The argument is without merit. Counsel asked Dr. Alam a question. Dr. Alam answered it (“Yes”). The court never ruled on Alstom’s belated objection. Alstom never moved to strike Dr. Alam’s answer. Appellants ask us to infer that at the unreported sidebar conference the court made a ruling. Appellants assert in their brief that “[t]he Trial Court sustained the objection and instructed Appellants’ counsel that there would be no further inquiry into Dr. Alam’s treatment of other La Paloma Project employees who became infected with Valley Fever.” We will not infer the existence of such a ruling. “All presumptions indulged in are in favor of the regularity of the judgment and proceedings upon which it is based, hence it devolves upon an appellant to affirmatively show the existence of the error upon which he asks for a reversal.” (Scott v. Hollywood Park Co. (1917) 176 Cal. 680, 681; Dahlberg v. Dahlberg (1927) 202 Cal. 295, 297.) “‘“[E]rror must be affirmatively shown.”’” (Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443.) Indeed, “[f]ailure of counsel to secure such a ruling waives the objection.” (Haskell v. Carli (1987) 195 Cal.App.3d 124, 192. See also 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, section 389: “[W]here the court, through inadvertence or neglect, neither rules nor reserves its ruling.… the party who objected must make some effort to have the court actually rule. If the point is not pressed and is forgotten, the party may be deemed to have waived or abandoned it, just as if he or she had failed to make the objection in the first place.” We also note in this regard that the trial court was gracious in allowing counsel, at the beginning of each court day, to place on the record comments on any matter any party wished to have on record. Appellants easily could have recited for the record an account of what happened during this sidebar if they had considered it to be of any significance.
Furthermore, “[t]he burden rests upon the party complaining not only to show error but also to show that the error is sufficiently prejudicial to justify a reversal.” (Coleman v. Farwell (1929) 206 Cal.740, 741.) Even if we were to accept appellants’ version of events as true, such a ruling would have been insignificant. The jury was told the names of all eight known individuals who worked at the La Paloma site and who contracted valley fever. Appellants made no offer of proof in the trial court, and make no assertion in this court, that Dr. Alam was aware of any others.
Finally, we note that although appellants’ trial counsel asserted in his questioning of Dr. Alam on redirect examination that “you were asked questions about do you know whether – where Mr. Wilson became infected,” Dr. Alam was never asked, either on direct examination or on cross-examination, whether he had an opinion on where Wilson became infected or, if so, what that opinion was. Nor did Dr. Alam ever volunteer any such opinion during his testimony. “A witness once examined … may be reexamined as to any new matter upon which he has been examined by another party to the action. Leave may be granted or withheld in the court’s discretion.” (Evid. Code, § 774.) “The scope of redirect … examination is limited by Section 774.” (See Cal. Law Rev. Com. com., 29B, Pt. 2 West’s Ann. Evid. Code (1995 ed.) foll. § 762, p. 387.) Any questioning of Dr. Alam on redirect examination about where Wilson or any other La Paloma worker contracted valley fever would have been beyond the scope of cross-examination and thus improper without leave of court. (Evid. Code, § 774.)
III.
DR. PERRILLO’S TESTIMONY
One of appellants’ experts was Dr. Richard Perrillo, a clinical and forensic neuropsychologist and clinical psychologist. Dr. Perrillo was not a medical doctor but held a Ph.D. in clinical and counseling psychology. He administered a battery of at least 35 psychological and neuropsychological tests to each of the two appellants. Alstom made a motion in limine to exclude Perrillo’s testimony. The motion argued that there was no scientific basis for concluding that valley fever caused brain damage. The court granted the motion only insofar as the court barred Perrillo from testifying that valley fever can or did cause brain damage, but otherwise allowed him to testify about his testing of Wilson and Brown. He did so at length at trial.
Appellants now argue that “the trial court erred when it refused to allow appellants’ expert neuropsychologist to give an opinion regarding causation.” They assert: “Appellants sought to introduce the opinion of their expert neuropsychologist, Dr. Richard Perrillo, that supported the claim that Appellants contracted Valley Fever at the La Paloma Project, as opposed to any other location in Kern County. Dr. Perrillo arrived at this opinion by conducting extensive neuropsychological testing of five individuals who had become infected with the Valley Fever disease: Wilson, Brown and three of the Laughlin plaintiffs.”
We find this argument to be meritless. One of Alstom’s motions in limine was a routine motion to preclude expert opinion by the plaintiffs’ experts at trial that were not revealed at their depositions. (See Code of Civ. Proc., §§ 2034.260 & 2034.300.) The court granted the motion as to any opinion formed after the deposition of the expert. At Dr. Perrillo’s deposition he was asked: “What opinions do you plan to express at the time of trial with respect to Mr. Brown? He testified at length about his opinions on Brown’s impairments as revealed by the testing. He was also asked: “Same thing for Mr. Wilson. Please tell me each expert opinion you plan to offer at trial on behalf of Mr. Wilson.” He testified about Wilson’s condition as well. We see absolutely nothing in that deposition expressing an opinion that either Mr. Wilson or Mr. Brown became infected with valley fever at the La Paloma site. Appellants relied on other experts for that opinion, and the jury rejected it. Appellants’ argument that the court excluded Perrillo’s “opinion … that supported the claim that Appellants contracted Valley Fever at the La Paloma Project” is unsupported by any citation to Dr. Perrillo’s deposition testimony. There was no error.
IV
DR. JOHNSON’S TESTIMONY
One of appellants’ experts was Dr. Royce Johnson, a medical doctor who was the chair of medicine and the chief of infectious disease at the Kern Medical Center. Dr. Johnson was also a Professor of Medicine at the University of California at Los Angeles and had a private medical practice. He testified that in his private practice “I predominantly do consultative infectious diseases, and the majority of that has to do with Valley Fever or Coccidioidomycosis.” He testified that in his expert opinion “I think it’s substantially more likely than not that [the plaintiffs] contracted this – the illness of Coccidioidomycosis as part of their work activities at the La Paloma site.” He further testified “it’s considerably more likely than not that they became infected at the La Paloma site based on the nature of the site, the amount of time they spent there, and what they were doing while they were there.” He was not a treating physician and never examined either of the two plaintiffs.
After he gave his expert opinion, he was asked on direct examination: “Okay. Now, both men have been evaluated by neuropsychologists. Right?” The defense objected. The court held a hearing on the objection while the jury took its morning break. Alstom’s counsel expressed the defense view that the plaintiffs were attempting to use Dr. Johnson to create the impression that appellants’ valley fever was the cause of cognitive deficiencies, even though Dr. Perrillo had been barred from so testifying. The court stated: “Well, I thought I put an end to the inquiry when we had the pretrial reviews and the Court made the ruling, and I’m going to stick with that ruling. [¶] … [¶] That was the ruling that was made. And to try to come in the side door or bring it up again to – for further kind of reference through Dr. Johnson is not appropriate, obviously. [¶] … [¶] So the Court – that was the ruling. That will be the ruling.” Appellants’ counsel asked if he could “please make a record.” The court told appellants’ counsel that the court did not want to keep the jury waiting any longer but that “You can put that on the record at some later time.” Later in the morning, when the court excused the jury for its lunch break, the court twice asked appellants’ counsel if he wanted to put something on the record. Appellants’ counsel stated: “I plan to stick to that ruling. I have it right here.”
Appellants now argue in their brief to this court: “This was going to be the first of many questions regarding the results contained in Dr. Perrillo’s reports as well as the reports from Alstom’s expert, Dr. Bilder. Dr. Johnson was going to then offer the opinion that … these results were another piece of evidence supporting his conclusion that Appellants contracted Valley Fever while working at the La Paloma worksite as opposed to somewhere else.” This argument is not supported by anything in the record on appeal. Dr. Perrillo testified about appellants’ psychological conditions and, to a certain extent, whether rightly or wrongly, about physical limitations he claimed were measured by his testing. Dr. Johnson’s testimony pertained to where, in his opinion, appellants were likely to have inhaled cocci spores. He offered no expert opinions on the extent of appellants’ debilitations. There is nothing in the record on appeal which suggests that anything Dr. Perrillo did had any bearing or effect whatsoever on Dr. Johnson’s expert opinion about where appellants contracted their coccidioidomycosis. Appellants were twice invited to make a record explaining why the court’s ruling was erroneous. They declined to do so. There was no error.
V.
ALSTOM’S MOTION IN LIMINE NO. 4
Alstom made a motion in limine to exclude testimony by or reference to reports by Dr. Matthew J. Reinhard. The court granted the motion. Dr. Reinhard was a Doctor of Psychology (Psy.D.) who conducted testing on Matthew Laughlin. He never examined or tested either Mr. Brown or Mr. Wilson. It is not entirely clear whether appellants actually ever intended to call Dr. Reinhard as a witness. They never designated him as an expert. It appears that appellants possibly may have intended to have Dr. Perrillo testify about Dr.Reinhard’s report in order to bolster an argument that valley fever can cause brain injury. Appellants’ opposition to the motion argued that “Dr. Reinhard’s conclusions … support Plaintiffs’ theories regarding the relationship between Valley Fever and brain injury ….” There is nothing in the record on this appeal which even remotely suggests that any opinion of Dr. Reinhard had any bearing whatsoever on the issue of whether Wilson and Brown contracted valley fever at the La Paloma site or elsewhere, or that appellants ever intended to use Reinhard’s report or testimony on this issue. The jury found that appellants had failed to prove they contracted valley fever at the La Paloma site. The issue of whether appellants did or did not suffer brain injury as a result of their valley fever therefore had no effect on the jury’s verdict or on the judgment in favor of Alstom.
VI
THE TESTIMONY OF EMMA CHAPUT
Ms. Emma Chaput was an expert epidemiologist for appellants. She testified, like Dr. Johnson, that “it’s more likely that [appellants] acquired Valley Fever on - at the site of the plant, the construction site, rather than at any other time ….” Appellants contend that the court “prohibited … Chaput from testifying regarding an analysis obtained from the Kern County Health Department identifying 17 other individuals who contracted valley fever while working on the La Paloma worksite in 2001 and 2002.” Appellants call our attention to no ruling barring such testimony, however, and we find none in the record on appeal.
Ms. Chaput obtained from appellants’ counsel a list of individuals who worked at the La Paloma site. A colleague at the Kern County Department of Health, Mr. Kirt Emery, compared the list of names of La Paloma workers with a list of names of coccidioidomycosis cases known to the Kern County Department of Public Health in 2001 and 2002. Emery found 17 matching names, and reported his results in a May 2, 2006 letter to appellants’ counsel. In this document, marked at trial as exhibit 199, Emery stated in part: “It is important to interpret these possible matches with caution because five of these names are quite common. For example a name like John Smith may be identified on both lists, however, they may not be the same individual. In order to strengthen the matching program, another field, such as date of birth, needed to be included in the list submitted by Emma Chaput.”
Alstom’s motion in limine No. 9 sought to exclude any evidence of lists of purported La Paloma workers who contracted valley fever other than the eight known and confirmed cases previously mentioned. La Paloma argued that it had not seen the list of names of purported La Paloma workers given to Chaput and Emery, and that Alstom had no way of knowing whether any such list of La Paloma workers or of purported additional cases of valley fever among La Paloma workers was accurate. In the alternative, Alstom requested an Evidence Code section 402 hearing prior to the admission of any such evidence. At the hearing on the motion, the court stated that it was inclined to hold a 402 hearing on the matter and asked counsel for comments. Appellants’ counsel stated “I mean, if you want to do a 402 hearing on it we can do a 402 hearing on it ….” Alstom’s counsel stated “We’re in favor of it.” The court then stated: “I think both sides indicated that that would be an appropriate or acceptable means of trying to determine the relevant aspects of this matter, so that’s what we’re going to do. [¶] … [¶] The court’s going to submit it for that purpose, and we’ll schedule a 402 proceeding ….”
The court later held the 402 hearing following the completion of Dr. Johnson’s trial testimony and before Ms. Chaput’s testimony. Appellants called Ms. Chaput as a witness at the 402 hearing. She testified at the hearing that she relied on Emery’s letter in reaching her expert opinion “but it’s not the sole basis of my opinion.” The court heard argument, and Alstom reiterated its position that it did not want Chaput to testify to a hearsay statement by Emery that there were 17 additional cases of valley fever among La Paloma workers in 2001 and 2002. The court then said “[we]’ve already had some discussions about Mr. Emery and his availability, and I believe there was some agreement that he could come - he could testify …. [¶] Do you have some comments in that regard?” Appellants’ counsel stated that appellants still wished to have Chaput testify as to matters other than the La Paloma calculations. Alstom’s counsel then responded: “Your Honor, if they’re willing to have Ms. Chaput testify to everything but the calculations done by Mr. Emery and as reflected in this letter, then we would say proceed. Once Mr. Emery is here to lay a foundation or once Mr. Emery is here to demonstrate that there is no foundation, then they can do what they like. But that’s not a problem. We would agree to that.”
Appellants’ counsel said: “And then if Kirt Emery does, in fact, testify next week – I’ve got him under subpoena – and your Honor makes a ruling that the incidence rate for La Paloma can be admitted in, then I’d like to bring Ms. Chaput back to talk about just that, just that narrow issue.” The court then asked: “That’s workable?” Alstom’s counsel stated: “That’s acceptable to us, yes, your Honor.” Appellants’ counsel stated: “So we’ll just continue the 402 hearing until Mr. Emery is available.” The court said: “Okay. Let’s go ahead and proceed with what’s been agreed to here.” Chaput then gave her trial testimony, including her opinion that appellants were more likely than not infected at the La Paloma site.
Several days later, as the court was addressing scheduling matters at the start of the day, and just before the defense began to present its case, the following occurred:
“THE COURT: Anything further?
“MR. BLAKELY: And then, finally, just with regard to Kirt Emery, reserve the right to bring him on to talk about the Emma Chaput information when Ms. Chaput gets back into town. Remember in the 402 hearing we also trailed that?
“THE COURT: Yes.
“MR. BLAKELY: Okay.
“THE COURT: We’ll continue to trail that, but you can reopen for that purpose.”
When the defense called its first witness, the courtroom clerk reminded the court “[p]laintiffs have not officially rested.” The court replied: “No. They’re holding.” The following day, the plaintiffs rested without ever calling Emery as a witness or recalling Emma Chaput. In sum, the court made no ruling barring the introduction of evidence of 17 purported additional cases of valley fever among La Paloma workers. Appellants simply changed their minds about attempting to introduce that evidence.
DISPOSITION
The judgment is affirmed. Costs to respondent.
WE CONCUR: Cornell, J., Hill, J.