Opinion
B163881.
11-12-2003
YVONNE WILSON, Plaintiff and Respondent, v. LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY et al., Defendant and Appellant.
Cummins & White, and James R. Wakefield and Laya Dogmetchi; and Greines, Martin, Stein & Richland, and Martin Stein, Feris M. Greenberger, and Laura B. Reider for Defendant and Appellant. Mehta & Mann and Steven G. Mehta; and Law Offices of Eleanor Southers and Eleanor Southers for Plaintiff and Respondent.
Defendant Los Angeles County Metropolitan Transportation Authority (MTA) appeals from the judgment entered after a bench trial which found that plaintiff Yvonne Wilsons slip and fall while boarding an MTA train caused her to suffer a serious nerve ailment. Because there was insufficient evidence to support that finding, we reverse and remand for further findings on the issue of her damages.
FACTS AND PROCEDURAL HISTORY
On August 9, 2000, 95-year-old Yvonne Wilson slipped while boarding an MTA Red Line train when the doors closed without warning. Wilson fell backward onto the boarding platform, striking her head against a wall. The fall left her with a painful bump on her head, a bloody elbow, a sore neck and badly bruised buttocks. She was so stiff that for several days she did not go anywhere and did not do much walking. After several days, her soreness lessened but she remained stiff and walked with difficulty. Eventually, Wilsons pain progressed to the point where she could barely get out of bed. She first saw a doctor for her pain and stiffness in October 2000. Several doctors were unable to diagnose or relieve Wilsons suffering until Dr. Alex Chai diagnosed her condition as polymyalgia rheumatica in November 2000. The illness causes pain throughout a persons joints and ligaments. As a result of her condition, Wilson was required to take the steroid prednisone for the rest of her life.
Wilson sued MTA, which stipulated to liability and the fact that Wilson sustained some injuries as the result of her fall, leaving for trial the nature and extent of her damages. Both parties demanded a jury trial, which was eventually scheduled for July 15, 2002. MTA served its proposed jury instructions on July 10, 2002. The trial was continued again until 10 a.m. on July 24, 2002. At 10:03 a.m. on July 24, the court excused an assembled panel of prospective jurors because MTA had not posted jury fees. When MTA lawyer James Wakefield walked into the courtroom just minutes later, he was shocked to see the jurors leave and said he believed the fees had been posted. After checking with his office and learning they had not been paid, Wakefield said his client did "not waive jury" and was ready to post the fees immediately. Wilsons lawyer said she had waived a jury and argued that MTA had done the same by failing to post fees. The trial court agreed and proceeded to try the case itself.
The trial lasted little more than a day, with only two witnesses called — Wilson and Chai. Because Wilson decided not to call any of her treating physicians, MTA subpoenaed Chai to testify about the cause of Wilsons polymyalgia, believing he would testify that there was no medical literature suggesting the condition could be caused by physical trauma. Although Chai did give such testimony, he also said that he believed Wilsons accident triggered her polymyalgia. After taking the case under submission the court entered judgment for Wilson in the sum of $1,364,027.55, as follows: $780,000 for past pain and suffering; $558,000 for future pain and suffering; and $ 26,027.55 for past medical expenses.
On appeal, MTA contends that the judgment must be reversed because the trial court abused its discretion by refusing to relieve MTA from its jury trial waiver. MTA also contends that there was insufficient evidence to support a finding that Wilsons accident led to the onset of her polymyalgia, that in any event, the damage award was excessive, and the court erred by awarding Wilson prejudgment interest.
Post-trial motions for new trial and to vacate the judgment were made on these grounds but denied by the trial court.
DISCUSSION
1. Jury Trial Waiver
Although MTA had a constitutional right to jury trial (Cal. Const., art. I, § 16), it concededly waived that right by failing to post jury fees 25 days before the initial trial date. (Code Civ. Proc., § 631, subds. (b), (d)(5).) The trial court had discretion to relieve MTA from its waiver, however. Because the right to a jury trial is so important, a trial court abuses that discretion when there is no showing of prejudice to the court or the opposing party. Any doubts about whether to grant relief should be resolved in favor of allowing a jury trial. (Wharton v. Superior Court (1991) 231 Cal.App.3d 100, 103-104.)
Assuming for discussions sake only that the trial court abused its discretion by denying MTAs request to post fees and proceed with a jury trial, we still cannot reverse on this ground. While the outright denial of an existing right to jury trial is deemed prejudicial per se, when the trial court denies a request for relief from a waiver of that right and the aggrieved party does not seek a writ from this court before proceeding to trial, that party must show actual prejudice when it challenges the decision on appeal. (Beasley v. Wells Fargo Bank (1991) 235 Cal.App.3d 1383, 1396; Gann v. Williams Brothers Realty, Inc. (1991) 231 Cal.App.3d 1698, 1704; McIntosh v. Bowman (1984) 151 Cal.App.3d 357, 363-364.) MTA does not contend it was actually prejudiced by having a court trial and asks instead that we depart from these decisions. We decline to do so. The rationale behind requiring a request for writ relief in these cases is to prevent a party from gambling on the outcome, then seeking to reverse on the jury waiver ground only if it loses. (Gann v. Williams Brothers Realty, supra, at p. 1704.) We believe this to be a good rule of judicial economy and choose to follow it.
We believe the trial court abused its discretion. When Wilsons lawyer was asked to comment on MTAs late request to post jury fees, she did not contend her client would be prejudiced and the record contains no hint of such prejudice. Both parties had demanded a jury trial, MTA had served its proposed jury instructions two weeks earlier, and, by all accounts, the parties expected a jury trial until the court discovered that MTA had not posted its fees. A jury panel had been assembled in the courtroom but was dismissed by the court before MTAs lawyer could address the issue, even though the record shows MTAs counsel was just three minutes late. Although the trial court was concerned that the panel might be needed elsewhere, calling back that panel just minutes after it was excused should have caused little or no disruption.
2. Medical Damages Evidence
MTA contends that Wilson failed to carry her burden of proof to show that the accident proximately caused the onset of her polymyalgia, pointing to certain supposed deficiencies in Dr. Chais testimony. Wilson first challenges this contention on the basis that MTAs pre-trial stipulation removed the issue from trial. She also contends that no expert testimony was necessary to prove the point and that her own testimony sufficed. Finally, she contends that Chais testimony established causation.
We begin with the stipulation, which Wilsons lawyer characterized for the record as an admission "to negligence, causation, and that an injury occurred, that the accident occurred, and then the only issue for the jury to try will be the amount of damages, meaning the amount of noneconomic damages and the amount of economic damages that were sustained . . . ." MTAs lawyer clarified that MTA was still contesting "the nature and extent of injuries." Wilson interprets this to mean that MTA conceded that the accident caused her polymyalgia. This interpretation is belied not just by the terms of the stipulation — which excluded the nature and extent of her injuries — but by the parties conduct at trial as well. During her opening statement, Wilsons lawyer said the evidence would show that all of Wilsons symptoms were the result of her accident, with the question to decide being "how much of an injury" she suffered. MTAs opening statement addressed the polymyalgia causation issue, as did Chais testimony and the parties arguments to the court. Wilson never objected that the evidence and arguments were precluded by the stipulation. Finally, the court expressly reached the issue, finding that Wilsons polymyalgia was caused by her fall. Based on all this, we conclude it would be unreasonable to construe the stipulation as a concession by MTA that it caused Wilsons polymyalgia. (Searle v. Allstate Life Ins. Co. (1985) 38 Cal.3d 425, 438 [stipulations must be given a reasonable construction to carry out parties intent, not to give effect to an unintended admission]; Sy First Family Ltd. Partnership v. Cheung (1999) 70 Cal.App.4th 1334, 1341 [stipulations are subject to ordinary rules of contract interpretation]; Southern Cal. Edison Co. v. Superior Court (1995) 37 Cal.App.4th 839, 851 [parties post-execution conduct given great weight when interpreting contracts].) Accordingly, we hold that the stipulation did not apply to the issue of whether MTAs conduct proximately caused Wilson to incur polymyalgia.
Wilson wrongly contends that the trial courts judgment stated that the stipulation resolved the causation issue, leaving only damages as an issue. The judgment mirrored the terms of the stipulation, stating that the "matter was stipulated as to liability and the only issue to be determined by the court is the amount, nature and extent of damages incurred by" Wilson. The judgment then went on to make findings regarding the cause of Wilsons polymyalgia.
We also disagree with Wilson that no expert testimony was required on this point. Wilson relies on decisions which hold that an injured plaintiff may testify to the existence of an injury or disease to establish pain and suffering (Capelouto v. Kaiser Foundation Hospitals (1972) 7 Cal.3d 889, 895; Mendoza v. Rudolf (1956) 140 Cal.App.2d 633, 637), or to show that he suffers from a certain condition. (Frederick v. Federal Life Ins. Co. (1936) 13 Cal.App.2d 585, 590.) We have no quarrel with that proposition, but reject its applicability here where the issue is what caused Wilsons pain and suffering. The general rule requires a personal injury plaintiff to prove causation "within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. [Citations.]" (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403 (Jones).) That rule was applied in Jones, where the plaintiff sued a drug manufacturer, claiming the oral contraceptive she took caused her to develop cervical cancer. Where the cause of a disease such as cancer is unknown, and where there are no factual circumstances of probability understandable to laymen, scientific testimony is required. (Id. at p. 403.) We believe the issue whether or not trauma from a fall can cause the onset of a nerve disease such as polymyalgia fits into that category. Testimony by a medical expert, not by Wilson, was therefore required. (See Black v. Food Lion, Inc. (5th Cir. 1999) 171 F.3d 308, 310 [applying similar Texas state law reasonable medical certainty test, held that expert medical testimony on causation of fibromyalgia syndrome was required by slip and fall plaintiff].)
Even if Wilson could testify to the cause of her disease, she did not. Instead, she testified to its existence and the pain and suffering it caused.
Dr. Chais testimony on this issue was confusing. In order to make sense of it, we will first set forth the portions most favorable to Wilson. Asked by MTAs lawyer whether he had reason to believe that Wilsons accident caused the onset of her polymyalgia, Chai testified: "Given the person whos totally healthy at the age of 96, I would say, totally healthy, given, perhaps, no history of hypertension, diabetes, heart or lung problems, and has survived an excellent procedure for the hip replacement, as well as from what she told me, she also had breast cancer surgery a few years ago, and at that time, I was not the treating physician, she definitely has major change that precipitated all these discomforts she described. [¶] And normally, when a person comes down with an injury, we have seen very commonly, within about two to four weeks to six weeks, other findings come up, including like, bursitis, inflammation of the joints and inflammation of the nerve fibers. [¶] So given the symptoms that she described in this scenario, the timing of the injury, I still think the polymyalgia rheumatica was related to the injury or not caused by the injury, but however, though, most likely is triggered on internally in something in the body causes the disease to come up." Asked to clarify other comments he made suggesting that trauma might not cause the condition, Chai testified that he meant to distinguish between a disease such as polymyalgia and situations such as bone fractures, where the cause of an injury can be clearly determined. With polymyalgia, where there has been no physical trauma before onset, "I would say no, this is not related. [¶] But however, though, in her situation, you know, with the symptoms that she described right after, like you said, I didnt know it was within a month, okay. Now that you told me within a month, that would make me more thinking about this is related to the injury."
Wilson also relies on a portion of Chais testimony where he states that upon first examining Wilson in November for her post-accident complaints, he concluded that her symptoms were caused by the accident. When that testimony is viewed in context, it appears that Chai was talking about a general observation made before he ever made his diagnosis of polymyalgia. As part of that testimony, he also said that he was at that time unable to "put all the information towards the accident [as] the principal cause of the symptoms, because she does have some arthritis changes and also she has osteoporosis . . . ." We therefore exclude this testimony from our analysis.
In short, Chai seemed to testify that he had seen other patients who developed similar conditions after sustaining some type of physical injury and that, based on Wilsons previous health condition and the timing of her polymyalgia symptoms in relation to her accident, he believed the accident caused her polymyalgia. When it came to the degree of medical certainty underlying this opinion, however, Chais testimony broke down. Chai testified that even though it sometimes occurs after an injury, "[t]heres no etiology [cause] of the illness." On redirect examination by MTAs lawyer, Chai was asked whether he knew of any medical research or publications that suggested trauma as a cause of polymyalgia. Chai replied, "Not to my knowledge, not to the reading that I have. I dont think theres any research, nor any documentation specifically say that any stress or injury or accident will lead on medical condition, unless its truly a fracture or body injury." Chai then admitted that his earlier testimony about the relationship between Wilsons accident and her polymyalgia was based on his own personal feelings and beliefs. Chai also testified he had no opinion whether Wilson would have acquired her polymyalgia without the accident. Finally, on recross examination by Wilsons lawyer, Chai confirmed that there had been no research regarding whether or not trauma was a cause of polymyalgia.
Distilled, Chai testified that no medical research had been done on the causes of polymyalgia, that the disease had no known cause, and that his causation testimony was based solely on his personal beliefs. This does not even remotely approach the threshold of a reasonable medical probability. (Black v. Food Lion, supra, 171 F.3d at pp. 313-314 [plaintiffs treating physician testified that slip and fall caused plaintiffs fibromyalgia; federal appellate court held this testimony insufficient because it was contrary to medical literature showing no known cause of the disease and was based on an unverified and untested personal theory]; Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1487 [plaintiff sued for injuries from methane leak; expert testimony that doctor felt the gas leak was probably the cause of the injuries was insufficient to raise a triable issue of fact for summary judgment]; Jones, supra, 163 Cal.App.3d at pp. 403-404 [medical testimony that chances were less than 50-50 that oral contraceptive caused plaintiffs cancer held insufficient].) Because there is insufficient evidence to establish that Wilsons fall led to the onset of her polymyalgia, the judgment must be reversed to the extent it awarded damages based on that condition.
3. Other Damages Issues
MTA also contends that the damage award was excessive as a matter of law and that because MTA is a public entity, the trial court erred by imposing prejudgment interest from the date MTA rejected Wilsons Code of Civil Procedure section 998 offer. (Civ. Code, § 3291.) We understand MTAs excessive damages argument. We need not reach the issue, however. As discussed earlier, we are reversing as to any damages attributable to Wilsons claim that she now suffers from polymyalgia as a result of her accident. It is impossible to tell from the judgment whether or to what extent the courts finding on that issue affected the various parts of its pain and suffering and economic damage award. Because there is sufficient evidence on the issue of Wilsons non-polymyalgia pain and suffering, we believe a new trial is not necessary. Instead, the matter is remanded to the trial court to make new findings regarding Wilsons damages that do not factor in or make allowance for her polymyalgia.
For instance, the trial court awarded Wilson $100,000 for her very first day of pain and suffering and another $15,000 a week for each of the next four weeks.
As for the award of prejudgment interest, Wilson concedes it was erroneous but contends MTA waived the issue by failing to raise it below. Our reversal and remand of the damage award makes it unnecessary to reach this issue as well.
Although MTAs motion to tax costs did not raise its governmental immunity from prejudgment interest under Civil Code section 3291, it did object that the interest award was improper as costs under Code of Civil Procedure section 1033.5. Even if the issue were waived below, however, we could and would exercise our discretion to reach this pure question of law. (San Francisco Unified School Dist. v. San Francisco Classroom Teachers Assn. (1990) 222 Cal.App.3d 146, 151, fn. 1 [award of post judgment interest].)
DISPOSITION
For the reasons set forth above, the judgment is reversed to the extent it awarded Wilson any damages based on her claim that she incurred polymyalgia rheumatica as a result of her accident. The matter is remanded to the trial court to make new findings regarding her damages that are consistent with this decision. Upon remand, the trial court is not precluded from considering Wilsons testimony as to the full extent of her long term pain and suffering. Its task is to exclude damages for any injuries solely attributable to Wilsons polymyalgia. Each side to bear their own costs on appeal.
We concur: COOPER, P.J. and BOLAND, J.