On 09/09/2016 LORRAINE WILLIAMS filed a Personal Injury - Motor Vehicle lawsuit against BURLINGTON CONVALESCENT HOSPITAL INC ET. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are GEORGINA T. RIZK, FREDERICK C. SHALLER and KRISTIN S. ESCALANTE. The case status is Disposed - Judgment Entered.
Disposed - Judgment Entered
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
GEORGINA T. RIZK
FREDERICK C. SHALLER
KRISTIN S. ESCALANTE
G & H NON-EMERGENCY MEDICAL
BURLINGTON CONVASLESCENT HOSPITAL INC
BURLINGTON CONVALESCENT HOSPITAL INC
BURLINGTON CONVASLESCENT HOSPITAL INC
BURLINGTON CONVALESCENT HOSPITAL INC
MOVAGHAR & YAMIN
MOVAGAR NICK THOMAS ESQ.
FEHER THOMAS STEVEN
SIMON ROBERT ESQ.
LEACH BRIAN E ESQ.
KATZ MARC ESQ.
MCGREEVY RICHARD EARL
LEACH BRIAN E. ESQ.
8/14/2019: Objection - OBJECTION TO [PROPOSED] JUDGMENT ON SPECIAL VERDICT
6/27/2019: Motion re: - MOTION RE: PLAINTIFFS NOTICE OF MOTION AND MOTION TO REOPEN DISCOVERY AND TO COMPEL THE DEPOSITION OF GRIGOR DERMENDJIAN
6/27/2019: Declaration - DECLARATION DECLARATION OF ATTORNEY RICHARD E. MCGREEVY IN SUPPORT OF OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION FOR AN ORDER TO REOPEN DISCOVERY, TO COMPEL VERY LIMITED DISCOVERY, A
7/3/2019: Opposition - OPPOSITION OPPOSITION TO PLAINTIFFS MOTION TO REOPEN DISCOVERY, TO COMPEL VERY LIMITED DISCOVERY, AND TO PAY SANCTIONS IN THE AMOUNT OF $3,200; G & HS REQUEST FOR MONETARY SANCTIONS
7/3/2019: Statement of the Case
7/17/2019: Motion in Limine - MOTION IN LIMINE MOTION IN LIMINE NO. 5 TO PRECLUDE TRIAL TESTIMONY FROM PLAINTIFF LORRAINE WILLIAMS; DECLARATION OF ATTORNEY RICHARD E. MCGREEVY; [PROPOSED] ORDER
7/31/2019: Special Verdict
1/25/2019: Answer - Answer DEFENDANT G&H NON-EMERGENCY MEDICALTRANSPORTATION, LLC'S ANSWER TO PLAINTIFF'S UNVERIFIED COMPLAINT
2/6/2019: Notice - Notice NOTICE OF RULING
8/21/2019: Minute Order - MINUTE ORDER (COURT ORDER - NOTICE OF ORDER TO SHOW CAUSE REGARDING ENTRY O...)
8/26/2019: Objection - OBJECTION TO AMENDED [PROPOSED] JUDGMENT ON SPECIAL VERDICT
10/16/2019: Proof of Service by Mail
6/27/2019: Opposition - OPPOSITION OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION FOR AN ORDER TO REOPEN DISCOVERY, TO COMPEL VERY LIMITED DISCOVERY, AND TO PAY SANCTIONS IN THE AMOUNT OF $3,200, OR IN THE ALTER
7/3/2019: Motion in Limine - MOTION IN LIMINE MOTION IN LIMINE NO. 2
7/26/2019: Opposition - OPPOSITION TO PLAINTIFFS BENCH BRIEF RE: TREATERS NOT DESIGNATED AS EXPERTS
7/29/2019: Minute Order - MINUTE ORDER (JURY TRIAL)
1/29/2019: Notice of Deposit - Jury
3/13/2019: Notice of Settlement
Docketat 08:30 AM in Department 46, Frederick C. Shaller, Presiding; Court Order - HeldRead MoreRead Less
DocketMinute Order ( (Court Order)); Filed by ClerkRead MoreRead Less
DocketCertificate of Mailing for ((Court Order) of 11/08/2019); Filed by ClerkRead MoreRead Less
Docketat 08:30 AM in Department 46, Frederick C. Shaller, Presiding; Hearing on Motion - Other (to Tax Plaintiff Lorraine Williams Memorandum of Costs) - HeldRead MoreRead Less
Docketat 08:30 AM in Department 46, Frederick C. Shaller, Presiding; Hearing on Motion for New Trial (and Motion for Judgment Notwithstanding the Verdict and Motion to Tax Costs) - HeldRead MoreRead Less
DocketMinute Order ( (Hearing on Motion for New Trial and Motion for Judgment Notwi...)); Filed by ClerkRead MoreRead Less
DocketStipulation and Order to use Certified Shorthand Reporter; Filed by ClerkRead MoreRead Less
DocketReply (TO PLAINTIFF LORRAINE WILLIAMS?S OPPOSITION TO MOTION TO TAX MEMORANDUM OF COSTS; DECLARATION OF RICHARD E. McGREEVY); Filed by G & H Non-Emergency Medical (Defendant)Read MoreRead Less
DocketOpposition ( To Defendant G & H Non-Emergency Transportation, LLC's Motion To Tax Plaintiff's Memorandum Of Costs); Filed by Lorraine Williams (Plaintiff)Read MoreRead Less
DocketReply (G & H NON-EMERGENCY MEDICAL TRANSPORTATION, LLC?S REPLY IN SUPPORT OF MOTION FOR NEW TRIAL); Filed by G & H Non-Emergency Medical (Defendant)Read MoreRead Less
DocketAnswer; Filed by Burlington Convalescent Hospital, Inc (Defendant)Read MoreRead Less
DocketMiscellaneous-Other; Filed by Defendant/RespondentRead MoreRead Less
DocketANSWER TO COMPLAINT BY DEFENDANT BURLINGTON CONVALESCENT HOSPITAL, INC.; DEMAND FOR JURY TRIALRead MoreRead Less
DocketProof-Service/Summons; Filed by Plaintiff/PetitionerRead MoreRead Less
DocketProof-Service/Summons; Filed by Lorraine Williams (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketComplaint; Filed by Lorraine Williams (Plaintiff)Read MoreRead Less
DocketSUMMONSRead MoreRead Less
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
Case Number: BC633325 Hearing Date: November 07, 2019 Dept: 46
Case Number: BC633325 Williams v. G & H etc. et al
11/7/2019 Order on Motion to Tax Costs and Award of Prejudgment Interest
(Following is Tentative Ruling on Other Motions)
Plaintiff served a 998 Offer to Compromise on G & H on 6/5/2019 for $250,000. The verdict in this action was for $625,000 past and $875,000 future damages. Plaintiff is therefore entitled to consideration of enhanced costs and prejudgment interest. CCP §998(d). Plaintiff served a Memorandum of Costs on Defendant G & H on 9/30/2019 which included total costs of $131,368.30.
The court finds that in the exercise of discretion, expert fees for expert services of Everlove, Brault, and Wagner incurred after the service of the Offer to Compromise should be granted but those of Dr. Steinberg in the amount of $5,580 should be denied for the reasons stated in the discussion below.
Costs for the services of expert Steinberg ($5,580); costs associated with mediation and arbitration with co-defendant Burlington pursuant to an arbitration contract with Plaintiff ($11,818.35); and interest charges on the costs ($47,970) are taxed and the motion to tax costs is otherwise denied as set forth in the following discussion. Costs are therefore reduced to $65,999.95.
Plaintiff’s request for prejudgment interest, requested in the original proposed judgment on the damages award for personal injuries from the date of the offer, 8/26/2019, is granted pursuant to CCP §3291 and Licudine v. Cedars-Sinai Med. Ctr. (2019) 30 Cal.5th 918, 920-921 at 10% on the judgment sum of $1,500,000 from the date of the Offer to Compromise until judgment is satisfied. Hess v. Ford Motor Co. (2002) 27 Cal. 4th 516. Prejudgment interest is awarded to the date of hearing in the sum of $63,698.63, without prejudice to supplemental interest until the judgment is satisfied. The court does not interpret CC §3291 as permitting an award of prejudgment interest on the costs of suit. Plaintiff shall prepare an amended judgment including costs awarded and separate order regarding the award of prejudgment interest.
$965.40 for Deposition of William Garcia
G & H seeks to tax the $965.40 in costs for the video-taped deposition of William Garcia on the ground that Mr. Garcia did not have any knowledge of the incident that gave rise to the action, was not employed by G & H and did not drive the medical transport vehicle at the time of the incident, that plaintiff’s counsel was informed of this prior to the deposition, and the deposition was taken in spite of G & H’s objection and improper notice of the deposition. Citing Lomita Land & Water Co. v. Robinson (1908) 154 Cal. 36, at page 52, G & H argues that such cost was “under the circumstances not necessary to the protection of the rights of a party” and that it is up to the trial court to determine, from all the circumstances, whether taking of the deposition was reasonably necessary. Hughes v. Hughes (1920) 49 Cal. App. 217, 218.
Taking, video recording, and transcribing of necessary depositions including an original and one copy of those taken by the party claiming costs, and one copy of those taken by the party against whom costs are claimed plus travel expenses to attend these depositions are recoverable costs. CCP §1033.5(a)(3); Gorman v Tassaajana Dev. Corp. (2009) 178 Cal.App.4th 44, 72; Foothill-DeAnza Community College Dist. v. Emerich (2007) 158 Cal.App.4th 11, 30.
A judge may award costs for video-recorded depositions that were necessary for trial preparation even though they were not used at trial. Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1560.
As discussed in the opposition, Plaintiff justifies this cost because in responses to interrogatories G & H indicated that William Garcia, a former employee, was the driver of the G & H van at the time of Plaintiff’s injury. Plaintiffs indicated that they tried to informally and formally obtain William Garcia’s contact information so that they could take his deposition, but G & H failed to provide that information. Defendant admits it did not provide Mr. Garcia’s contact information, but argues in the reply that they served code compliant discovery responses and that plaintiff’s investigator went to Mr. Garcia’s mother’s house before serving the wrong Mr. Garcia. In spite of failing to provide this information, G & H indicated that they would call Mr. Garcia at trial. Thereafter Plaintiff was forced to retain investigators to try to locate Mr. Garcia. Ultimately a person believed to be the correct William Garcia was located, subpoenaed, and deposed. However, it proved to be the wrong William Garcia. The mix-up is reasonable given the importance of this witness. The other criticism raised by the defendant in the reply is that Mr. Garcia’s testimony was not even needed since defendant conceded liability in the case. This argument is without merit since the admission of liability was after trial commenced and after the expense was reasonably necessary to secure the testimony of a person believed to be a key witness. No facts are shown to suggest that Plaintiff should have abandoned the deposition because Defendant purportedly told Plaintiff’s counsel they had subpoenaed the wrong Mr. Garcia was served and this contention is not reasonably credible in light of Defendant’s claimed ignorance of Mr. Garcia’s contact information. Under these circumstances incurring the expense to find, serve, and depose Mr. Garcia was reasonable and necessary. The van driver was a key witness to the case if Defendant did not later admit liability since he would have had to have potentially been called as a witness as his testimony would potentially affect the outcome of the case.
Motion to tax these costs is denied.
$1,594.85 in Deposition Costs Involved in Arbitration with Co-Defendant
(Omar Chacon - $734.40; Lenora Ileto ($464.45) and Margaret McKenzie ($396)
G & H’s theory for taxing these costs is that these deposition were taken in a portion of the case to be determined in arbitration, and G & H was not involved in the arbitration. However, all three of these witnesses testified in the trial of the action on behalf of G & H and their testimony was important to the issues in the trial action.
Omar Chacon was a witness to the 8/29/2016 incident. He had worked at Burlington for about one year before this incident happened and was familiar with the process of taking Ms. Williams to dialysis. He went with Ms. Williams to dialysis on the accident date because Burlington had to have someone go with her to take care that she would not take out the needles in her arm that she had in as part of her dialysis treatment. He witnessed and described the negligence of the G & H driver and was a key witness to observations about how Ms. Williams was thrown out of her restraints and the subsequent failure to call an ambulance on that date, her condition on the date of the injury and the fact that G & H nonetheless delivered Ms. Williams to dialysis with a broken leg and had her undergo dialysis in spite of her condition.
Leonora Ileto is a registered nurse at Burlington and had been employed there for over 30 years. She was in charge of Ms. Williams care and was knowledgeable about her level of functioning before the broken femur, which served to corroborate much of what Ms. Craig stated regarding her mother’s condition. She was aware of the reasons why Mr. Chacon had to go with the transport to and supervise the dialysis.
Margaret McKenzie was the Burlington activity director and had been in contact with Ms. Williams nearly on a daily basis since her admission. She was the person that interacted with Ms. Williams for the purpose of keeping her active on a daily basis. She prepared and implemented programming for Ms. Williams group activities and at bedside. She was knowledgeable about Ms. Williams level of functioning before the broken femur, which served to corroborate much of what Ms. Craig stated regarding her mother’s condition.
These witnesses were necessary to both the arbitration matter and the trial of the G & H matter. All three of these witnesses were called at trial. Defendant actually called both Ms. Ileto and Ms. McKenzie as witnesses during the trial to support G & H’s position at trial. The depositions were necessary to develop facts directly material and relevant to the damages suffered by Plaintiff in this case and to serve as a basis for anticipating their trial testimony.
The court infers from the memorandum of points and authorities in opposition to the motion to tax that the arbitration matter and the action against G & H proceeded in a parallel manner, with G & H receiving notice of these three depositions and attending the depositions in spite of the stay imposed with the order granting the motion to compel arbitration in this case and in spite of the fact that the liability of the two defendants (Burlington and G & H) were decided in different forums. The evidence obtained from these depositions was used in the G & H trial. It is reasonable for these costs to be paid by Defendants for this reason.
Motion to tax these costs is denied. These are allowable costs pursuant to CCP §1033.5(a)(3).
$682.90 - Service of Subpoena costs for William Garcia
G & H seeks to have these costs taxed for the same reason as G & H seeks to have the deposition costs taxed.
The trial court's award of costs for service of process is proper in the amount actually incurred in effecting service of process by a registered process server pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(4)(B). Citizens For Responsible Development v. City of West Hollywood (1995) 39 Cal.App.4th 590, 506-507.
Furthermore, these recoverable costs include the amount actually incurred in effecting service of process by a registered process server, including costs related to a stakeout or other means employed in locating the person to be served. Here, because the defense did not provide the contact information for a key witness in the case investigation costs in locating the witness believed to be the driver of the medical transport van and service of the witness were reasonable and necessary in an effort to discover the facts in the case before the witness was called at trial even though the wrong person was found, subpoenaed, and deposed.
$29,923 in Expert Costs claimed on Memorandum of Costs
The court is authorized, in its discretion, to award expert witness fees to a party who has served a CCP §998 Offer to Compromise where the opposing party rejects the offer, and the offering party obtains a better result. CCP §1033.5; CCP §998. Here G & H rejected an offer to settle the case for $250,000 and the Plaintiff obtained a judgment of $1,500,000, so Plaintiff obtained a better result and is therefore entitled to enhanced costs and prejudgment interest pursuant to CCP §998(d).
Further, the court may require the defendant to pay a reasonable amount to cover the costs of the services of the plaintiff’s expert witnesses who are not regular employees of any party, actually incurred and reasonably necessary in the prepare or trial of the plaintiff’s case. CCP §998(d); Gonzalez v. Lew (2018) 20 Cal.App.5th 155, 160.
G & H’s apparent basis for the objection to these costs is procedural. G & H contends that a motion to permit costs under CCP §998 must first be made before the Plaintiff may request them in the Memorandum of Costs. This is incorrect. The proper procedure is for Plaintiff to do as Plaintiff did in this case: place the expert costs on the Memorandum of Costs, and then the defense has the burden of raising entitlement to the costs on a motion to tax costs. Therefore, the court now has jurisdiction to consider making the costs award. Claiming fees in a memorandum of costs is sufficient to collect costs for expert fees and a noticed motion is not required. Jonkey v. Carignan Constr. Co. (2006) 139 Cal.App.4th 20, 27; Jones v. John Crane, Inc (2005) 132 Cal.App.4th 990, 1012. The memorandum of costs was timely as it was served within 15 days of the entry of judgment as required by CRC 3.1700(a)(1). [Judgment was entered on 9/16/2019 and Memorandum of Costs was filed and served 14 days later on 9/30/2019]
Everlove. Relative to this expert, Plaintiff seeks an award of $13,915 for the expert work he performed in preparation for the trial of the case and for testifying as an expert for the plaintiff. His work was billed at $350 per hour and he performed the following work: reviewed depositions, patient care records, internal documents from G & H and from Burlington, he met with counsel to prepare for his deposition and for trial, he visited Ms. Williams at the convalescent center where she now resides. Mr. Everlove is an actively practicing paramedic and is an expert both as a paramedic and emergency medical services expert and patient transportation expert. He is licensed in California as a paramedic, is qualified as a medical training technician, and certificates in ACS, BCS, Pediatric Life Support, transportation and airway management. His hourly rate is reasonable in light of his training and experience and his testimony was very important to plaintiff’s case. The total amount of $13,915 was based upon services incurred after the CCP §998 Offer to Compromise was served. The sum is a very reasonable amount for the entirety of the work he has performed in the case. The court exercises its discretion and awards these costs to Plaintiff.
John Brault. The memorandum of costs for John Brault indicates a claim for $6,928 in expert fees. The fees were incurred after the CCP §998 Offer to Compromise was served on Defendant G & H. Defendant contends that Brault’s expertise is accident reconstruction to testify about G & H’s liability and that his services were not reasonable or necessary because he did not testify at trial, defendant conceded liability at the time of trial, when he gave an opinion it was that he could not state an opinion regarding how the accident happened. However, liability was not admitted until after the commencement of the jury selection in the trial, and Mr. Brault had to be prepared to testify to the issue of liability as Plaintiff had no reason to believe that liability would be admitted until after all the work was done. As such, the expenses were necessary. Nothing in the reply changes this opinion. The court exercises its discretion and awards these costs to Plaintiff.
Kendall Wagner. The memorandum of costs for Kendall Wagner indicates a claim for $3,500 in expert fees. Defendant contends that Wagner was not called as an expert at the time of trial, so his fees should not be awarded. Plaintiff argues that “[b]ecause Plaintiff waived all medical expenses at the time of trial, Dr. Wagner’s testimony was ultimately not required at trial.” The court infers that Dr. Wagner’s testimony was therefore required to testify regarding the reasonableness and necessity of the medical bills incurred by Plaintiff. The parties made a tactical decision to waive past medical bills, which clearly turned out to be a wise decision. The fact that the strategy of the Plaintiff changed at trial did not make testimony regarding such medical bill unnecessary or unreasonable. Nothing in the reply changes this opinion. Therefore, the motion to tax these costs is denied.
Karl Steinberg. The memorandum of costs for Karl Steinberg indicates a claim for $5,580 in expert fees. Defendant contends that Steinberg was not called as an expert at the time of trial, so his fees should not be awarded. Plaintiff does not offer any information in response to defendant’s motion except to say that all the bills charged by Steinberg were paid. From the bill, it appears that Dr. Steinberg is an expert in family practice, but there is no showing why he was retained, what his opinion was, how he fit into the case against G & H, or why he was not called. There are no facts upon which the court can exercise its discretion to award these costs under CCP §998(d). As such, the motion is granted as to Dr. Steinberg and the expert fee of Dr. Steinberg is taxed.
$11,818.35 Mediation and Arbitration Costs
The court may allow costs incurred in mediation under CCP §1033.5(c)(4). Gibson v. Bobroff (1996) 49 Cal.App.4th 1202, 1207-8. Since the mediation and the arbitration costs were incurred in proceedings not involving G & H, they could not have allowed for the pretrial settlement or disposition of this case. They were with the co-defendant Burlington. As such, the court exercises its discretion and grants Defendant’s motion to tax costs as to the $11,818.35 in mediation and arbitration costs involving the arbitration with co-defendant. Costs in the amount of $11,818.35 are therefore taxed.
Prejudgment Interest On Verdict and Costs Per CC 3291
There is no specific mechanism in California law that dictates how a party is to request prejudgment interest. The request for prejudgment interest in this case was made in the original proposed judgment, which was within the time period allowed for making of a motion for a new trial, but the court deferring on making an order regarding fees until the court could analyze the 998 Offer to Compromise upon which the request was based. Now Plaintiff makes the request more formally supported by points and authorities as part of the opposition to the motion to tax costs. The court deems this sufficient request for prejudgment interest. See Watson Bowman Acme Corp v. RGW Construction, Inc. (2016) 2 Cal.App.5th 279, 296.
The judgment was entered for $1,500,000 on 9/16/2019.
The CCP §998 Offer to Compromise was served on 6/5/2019.
Prejudgment interest on a tort case is usually 7% pursuant to California Constitution art XV, §1; Michaelson v. Hamada (1994) 29 Cal.App.4th 1566, 1585. However, pursuant to CCP 998, if a plaintiff obtains a more favorable judgment at trial, the plaintiff is entitled to interest on the judgment at the rate of 10% per year calculated from the date of the plaintiff’s first offer that is exceeded by the judgment. CC §3291; Licudine v. Cedars-Sinai Med. Ctr. (2019) 30 Cal.5th 918, 920-921. Interest accrues until the judgment is satisfied.
The court calculates prejudgment interest until the date of the hearing on the request for prejudgment interest to be $63,698.63. Interest runs until the date of the satisfaction of the judgment. This award shall be by separate order and shall not be part of the final judgment.
IT IS SO ORDERED:
Frederick C. Shaller, Judge
Case Number: BC633325 Lorraine Williams v. G & H Non-Emergency Medical Transportation, Inc.
Defendant G & H’s Motion for New Trial and Motion for Judgment Notwithstanding the Verdict
Motion for New Trial is DENIED.
Motion for Judgment Notwithstanding the Verdict is DENIED.
Both the motion for new trial and the motion for judgment notwithstanding the verdict are based upon the same three arguments: (1) the award for future pain and suffering was unsupported by any testimony from Plaintiff as to how Williams’s symptoms described at the time of trial were caused by the injury; (2) such proof of causation would have required expert testimony in any event and Plaintiff utterly failed to provide any expert to explain the complicated questions of causation involved here; and (3) the jury’s outsized award, as to both damages for past pain and future pain and suffering, was influenced by Plaintiff’s deliberate strategy at trial to have the jury compensate Williams for all her pain and suffering, including symptoms from her pre-existing medical conditions.
The damages awarded for past and future noneconomic damages are completely reasonable in amount and were not the result of passion or prejudice.
The damages awarded for future pain and suffering are supported by the lay testimony at trial and no expert witness testimony was required.
The motion for judgment notwithstanding the verdict is based upon CCP §629. A party is entitled to a judgment notwithstanding the verdict where “there is no evidence of sufficient substantiality to support the jury’s verdict.” A judge’s discretion in granting a JNOV is much more limited than a judge’s discretion in granting a motion for new trial. In ruling on the motion, the court may not weigh the evidence or determine the credibility of the witnesses, but the court must accept the evidence tending to support the verdict as true unless it is inherently incredible on its face. Tun v. Wells Fargo Dealer Servs., Inc (2016) 5 Cal.App.5th 309, 333. The court must deny the motion for JNOV if any substantial evidence supports the jury’s verdict, viewing the evidence in a light most favorable to the prevailing party. Id. The term “substantial evidence” is not synonymous with “any evidence” – the evidence must be reasonable, credible, and of solid value and must actually be substantial proof of the essential elements of the cause of action or defense. Osbourn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.5th 234, 284. A judge must resolve all evidentiary conflicts against the person making the motion and in the opposing party’s favor and must draw all reasonable inferences from the evidence against the moving party and in the opposing party’s favor. McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 84; Kephardt v. Genuity, Inc. (2006) 136 Cal.App.4th 280, 289.
Future pain, suffering, and non-economic damages
The motion is based upon the same argument as made in support of the motion for new trial, that there was no substantial evidence produced by Plaintiff at the time of trial in support of the jury’s award of future non-economic damages in the amount of $875,000.
The court disagrees.
As held in the case of Frustuck v. Fairfax (1963) 212 Cal. App. 2d 345: “[w]here damages are recoverable for prospective detriment, occurrence of such detriment must be shown with such degree of probability as amounts to reasonable certainty that such detriment will result from original injury.” Thus, the test is “reasonable certainty” and not certainty. Further, as is stated in the case of Bellman v. San Francisco H. S. Dist. (1938) 11 Cal.2d 576, 588, cited with approval in the case of Behr v. Redmond (2011) 193 Cal. App. 4th 517, 533, the “requirement of certainty … cannot be strictly applied where prospective damages are sought, because probabilities are really the basis for the award.” (6 Witkin, Summary of Cal. Law, supra, Torts, § 1552, p. 1027.) Still, “ ‘ “there must be evidence to show such a degree of probability of their occurring as amounts to a reasonable certainty that they will result from the original injury.”
Plaintiff’s Condition Before G & H Fractured her Femur
Plaintiff suffered from a preexisting series of physical disabilities. Plaintiff had diabetes and related kidney disease. She also had suffered prior heart problems, a stroke, and had a history of amputation of one of her legs. Further, she suffered from dementia. However, Plaintiff did not have a chronic pain problem in her fractured leg or back before defendant’s negligence.
Before the accident, Dr. Friedman testified that Plaintiff was always up in her wheelchair when he provided care to Plaintiff and Tamika Craig testified that she would move her mother to the wheelchair without substantial effort with her mother adding significate help with her good leg – the one that was fractured in the later incident. Before the injury Plaintiff was able to put weight on the leg and help with the transfers to the wheelchair. Being taken out of her shared room to have experiences outside of the facility was a very significant part of Plaintiff’s life according to Ms. Craig as it afforded an opportunity to experience life closer to the way it was before she was hospitalized.
Plaintiff’s daughter Tamika Craig testified that she would visit her mother 3 to 4 times a week. She and her mother had a loving relationship and Tamika made a huge effort to support her mother and make her feel special, all of which appear to have made plaintiff feel loved, supported, and happy in spite of her medical issues. The wheelchair excursions were a large part of this effort. Ms. Craig would fix her hair, “do” her nails, dress up with new clothes that Tamika would bring for her mother, and take would her out in her wheelchair for walks and social interaction, bring her outside food that she liked, reminisce about family and past events, and listen and talk about radio shows they would listen to together. Tamika brought grandchildren in to visit plaintiff. All of the activities by family and the care she received at Burlington Convalescent made plaintiff “very happy” and it brought happy memories about when plaintiff was able to live at home. Tamika testified that her mother would never complain of pain before the incident in the left leg and while the right leg had been amputated, the left leg was strong and it could be used to assist her in getting into the wheelchair. Tamika described her mother, in terms of her functioning as doing “pretty good” and that she was “kind of strong.”
Plaintiff’s Condition After the Fracture and Surgery
On 8/29/2016, plaintiff suffered an injury described as an oblique fracture of her left femur which, due to its location, was referred to as a subtrochanteric fracture of the femur. The injury was due plaintiff being thrown from a restrained seat onto a floor due to the admitted negligence of G & H. The fracture was repaired by a surgery that required a large incision on the outside of the left leg and placement of a permanent intramedullary rod and fixation hardware. Although defendant’s expert Dr. Foreman testified that plaintiff had returned to her preinjury condition prior to trial, he agreed (in reference to the deposition of plaintiff’s designated expert, Dr. Wagner) that patients with a subtrochanteric fracture of the femur usually do not return to preinjury condition.
Forman also testified that Plaintiff returned to baseline condition after the accident and surgery. The court finds this testimony conflicts with the family testimony and is given no weight. Dr. Forman’s testimony was biased and not credible because he was clearly acting as an advocate for G & H and because he never examined Plaintiff.
The testimony of Ms. Peyton, Ms. Craig, and Dr. Friedman indicate that after the injury caused by G & H’s negligence Plaintiff had to be medicated for pain. Thereafter the testimony of Ms. Peyton and Ms. Craig indicates that Plaintiff continued to complain of pain in her back and in the area of the fractured left leg, and that while she did not communicate well due to her dementia, she complained of this pain continuously to the present. The existence of Plaintiff’s pain was observable in Plaintiff’s expressions of grimacing. The grimacing and complaints of pain continued, raising a clear inference that the pain from the fractured femur and surgery will continue into the future. There was no other condition among those that preexisted the injury in this case that caused pain, especially pain in the fractured leg or the back. There is no confusion as to the cause of this pain or need to differentiate this pain complaint and problem from other causes since there is no evidence that it was or could have been caused by any other medical condition of the Plaintiff.
Plaintiff was mostly bedbound after the incident and infrequently in her wheelchair due to inability to use her fractured left leg to assist in moving to a wheelchair together with her weight, unless Ms. Craig and the nursing home staff used extreme effort with multiple nurses and family to pick Plaintiff up out of bed to put her in the chair. The result in this change of circumstances is that Plaintiff stayed in bed more of the time and is was not taken outside as frequently, thereby confining her to a shared room and changing her level of activity including wheelchair excursions with her daughter.
Ms. Craig also testified that she continued to visit her mother frequently after the fracture and surgery and that her mother had changed and that she has been “declining drastically ever since.” Things that she used to do at Burlington she does not want to do. Plaintiff is now at a skilled nursing facility called Country Villa North and Tamika Craig still sees her mother 4 times per week. Since the injury and surgery, plaintiff can no longer can get herself into the wheelchair as before the injury, and she appears afraid during transfers and walks. Plaintiff refuses the personal care that she happily received from her daughter and grandchildren as before. She declines social interaction, complains of pain in the leg. She is described as a person who does not smile or look happy as she did before. Mr. Evermore, plaintiff’s expert, testified that he went to Country Villa North to meet plaintiff and found that she was in an abnormal position with her hips rotated and the left leg curled under her, and her face had a grimaced appearance. The evidence supports the inference that all these conditions are due to the injury and pain that she suffers in her leg and back and her relative immobility and that these permanent conditions will continue into the future.
Rene Preyer, plaintiff’s sister also testified. She testified that she visits plaintiff about 5 to 6 times per year, continuing to the present. In spite of the dementia, she stated that plaintiff recognizes her and sometimes other members of the family. She listed what she termed to be the “definite” differences she sees between plaintiff’s condition before and after the broken femur: she does not want to be moved, bothered as much, get up out of bed. She does not want to be bothered or touched. Also, she cannot sit up and is in a permanent reclining position in a type of gurney where she can be sat up. She does not move herself and needs help in movement on the bed whereas before the accident she could sit up on her own. She is less responsive, has had a big change “in spirit” and is less active and less animated. The evidence supports the inference that all these conditions are due to the pain that she suffers in her leg and back and her relative immobility and that these permanent conditions will continue into the future.
Expert Testimony In Support of Past and Future Noneconomic damages was Not Required
Plaintiff offered no expert testimony in support of past or future noneconomic damages. Plaintiff argues that none is necessary because the Plaintiff’s family suppled credible testimony that she suffered damages due to the fracture and surgery and because the jury is permitted to make a reasonable inference in this case that future damages would occur with reasonable certainty from the fact that plaintiff suffered from a subtrochanteric femur fracture with open reduction and fixation. G & H’s position is that the burden of proof was upon the plaintiff to prove damages, and she may not recover damages for allegedly speculative future noneconomic damages in the circumstance where there are multiple possible causes for plaintiff’s deteriorated condition unless expert testimony is produced that proves that it was reasonably certain that such noneconomic damages would be suffered in the future.
Because the multiple medical conditions of the Plaintiff that pre-existed the fracture and continued thereafter are distinguishable by a layperson from the new conditions that occurred due to the injury and surgery the court finds it appropriate for the jury to infer, without speculation, that the injury, fracture, and surgery will cause plaintiff to suffer future damages. Under these circumstances the award of future damages is proper.
This conclusion is supported by the cases cited by Plaintiff in the opposition briefs. In the case of Oliveira v. Warren (1938) 24 Cal. App. 2nd 712 an award of future noneconomic damages was upheld based upon lay evidence produced at trial of the present physical condition of the plaintiff. Herman v. Glasscock (1945) 68 Cal.App.2d 98 also stands for this proposition. In these cases, the requirement of reasonable certainty of future pain and suffering (or noneconomic damages) was met based upon the nature of the injury and the ability of a layperson to conclude, without speculating, that pain and suffering would be reasonably certain to continue into the future. The court agrees that these cases apply to this case as well.
Oliveira explained when expert testimony is required and held that where the injury is subjective and of such a nature that a layman cannot, with reasonable certainty, know whether or not there will be future pain and suffering, then expert witnesses who can testify that the plaintiff will experience future damages with reasonable certainty must provide opinion testimony. The court concludes, using the Oliveira test, that expert testimony was not required. Plaintiff suffered from peripheral artery disease, diabetes, history of strokes and heart attacks, and dementia among other conditions. These conditions did not cause pain in the fractured leg, surgery with the surgical scare, or pain the back. These conditions did not substantially prevent Plaintiff from transferring herself with minimal assistance to her wheelchair. Plaintiff’s daughter and sister testified credibly about objective evidence of decreased function, new onset of pain, and new onset of decreased ability to use her fractured leg after the injury.
Defendant’s position on this is not persuasive since the question is not whether a jury can conclude without speculation whether the observed decreases in function actually were a natural progression of the pre-existing conditions or due to the accident, injuries, and related treatment. The question is whether they observed new conditions that were not present before and which a reasonable inference would lead to the conclusion that such new conditions would continue into the future.
The motion for new trial is based upon CCP §657, paragraph 5 (excessive damages) and paragraph 6 (insufficiency of the evidence to justify the verdict.) A new trial on the basis of excessive damages may be granted where the court is convinced from the entire record that a different verdict should have been reached. In determining the motion for new trial the court must “independently weigh the evidence and assess whether it sufficiently supports the jury’s verdict.” People v. Capps (1984) 159 Cal.App.3d 546.
The court finds that the jury made the right decision based upon reasonable and permissible inferences from the evidence regarding causation and future economic losses based upon the evidence before it. Ms. Craig and Ms. Preyer were very credible witnesses regarding plaintiff’s condition. Their observations about plaintiff’s condition were supported by observations made 4 or more times per week and a close and dedicated familiarity with plaintiff’s condition. They were corroborated by the testimony of the treating nurses at plaintiff’s facility. On the other hand, Dr. Forman’s testimony was not credible and should be given no weight. He was clearly an advocate for the defense that cannot be believed on the subject of plaintiff’s condition after the injury and surgery compared to before the surgery. Forman admittedly never examined the plaintiff and has no percipient knowledge of her condition.
The court additionally finds that the amount of the past and future award of damages is not excessive based upon the evidence before the court. It is true that plaintiff had serious medical problems before the negligence of defendant G & H and had limited capabilities and diminished mentation. A reasonable jury could well conclude that this residual function was much more valuable to preserve and that the taking of some of this residual function, capability, and mental status should be compensated in the amounts awarded. The jury was well justified in concluding that the damage inflicted on plaintiff by the negligence of G & H substantially permanently took away that residual function, leaving plaintiff in a miserable and vastly diminished physical and mental condition.
As stated above, the court finds that no expert testimony was required to support he award of past or future noneconomic damages.
The arguments by counsel in the final argument were not improper. The arguments properly took language directly from the jury instructions and artfully argued the law to the jury. There was no improper attempt to appeal to sympathy or impassion the jury. The monetary award in the case by the jury was within reasonable limits given the nature of Plaintiff’s injury and damages from the admitted negligence of Defendant.
Motion for New Trial is therefore denied.
IT IS SO ORDERED:
Frederick C. Shaller, Judge
Get Deeper Insights on Court Cases