Powell v. Lemus

XAVIER A. POWELL, Plaintiff and Appellant, v. DOLLY G. LEMUS, Defendant and Respondent.

B296583

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

January 19, 2021

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. BC613309)

APPEAL from a judgment of the Superior Court of Los Angeles County. Frank Johnson, Judge. Affirmed.

The Appellate Law Firm, Corey Evan Parker, and Berangere Allen-Blaine, for Plaintiff and Appellant.

Farmer Case & Fedor, John T. Farmer, and Joyce R. Dondanville; Horvitz & Levy, Steven S. Fleischman, and Yen-Shyang Tseng, for Defendant and Respondent.

INTRODUCTION

Xavier Powell sued Dolly Lemus after Lemus hit Powell's car with her car. A jury awarded Powell $7,663 in damages. Powell appeals from the judgment, arguing that the trial court abused its discretion in permitting two of Lemus's expert witnesses to testify at trial and that the damages award was inadequate. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Powell Sues Lemus

In April 2015 Lemus rear-ended Powell's car with her car while Powell was stopped at a traffic light. Powell sued Lemus for negligence. Lemus conceded she was negligent, but disputed the extent of Powell's injuries from the accident and the reasonable costs of Powell's medical treatment for those injuries.

B. The Trial Court Denies Powell's Motion To Exclude the Testimony of One of Lemus's Expert Witnesses

In July 2017—over a year before trial commenced—Lemus designated Dr. Peter Burkhard as an expert witness to testify about accident reconstruction and the expected injuries from the accident. In June 2018 counsel for Powell agreed with counsel for Lemus on a date for Dr. Burkhard's deposition, but counsel for Powell canceled the scheduled deposition.¹ In August 2018counsel for Powell served a new notice to take Dr. Burkhard's deposition in Los Angeles, despite several requests by counsel for Lemus that the deposition occur in Orange County, where Dr. Burkhard had his office.

On September 12, 2018, the day before Dr. Burkhard's scheduled deposition, counsel for Lemus again asked counsel for Powell to agree to depose Dr. Burkhard in Orange County. Counsel for Powell told counsel for Lemus that he intended to take Dr. Burkhard's deposition in Los Angeles, as stated in the deposition notice. Counsel for Lemus responded that she "did not agree to have the deposition taken" in Los Angeles and that she would only make Dr. Burkhard available for deposition in Orange County. Counsel for the parties exchanged multiple emails reiterating their positions. On the morning of the deposition, counsel for Lemus said Dr. Burkhard was available for a deposition in Orange County on certain days the following week. When Dr. Burkhard did not appear for his deposition in Los Angeles, a court reporter certified his nonappearance. Counsel for Powell never responded to counsel for Lemus's offer to make Dr. Burkhard available for deposition in Orange County the following week, nor did counsel for Powell otherwise seek to depose Dr. Burkhard before trial.

On October 25, 2018 Powell filed a motion in limine to preclude Dr. Burkhard from testifying at trial on the ground Dr. Burkhard did not appear for his deposition. On November 5, 2018, the first day of trial, the trial court denied Powell's motion, stating that it was "pretty obvious that [Powell's] counsel must have known" Dr. Burkhard would not appear for his deposition inLos Angeles and that "there were opportunities" for Powell's counsel to depose Dr. Burkhard after he did not appear for the deposition. The trial court also ruled Powell could still depose Dr. Burkhard before he testified, and the court ordered counsel for Lemus to use their best efforts to make Dr. Burkhard available for a deposition. The court also offered to continue the trial for a day to allow counsel for Powell to depose Dr. Burkhard, an invitation counsel for Powell declined. Powell did not depose Dr. Burkhard before he testified.

C. The Jury Awards Powell $7,663 in Damages

At trial Powell described the medical treatment she received after the accident. She testified that, immediately after the accident, she felt pain in her left elbow, neck, and back, felt pressure in her right leg, and had a headache. She went to the emergency room, where a doctor examined her and prescribed medication. Over the next several months Powell continued to experience pain and received treatment from several medical providers. Her treatment included physical therapy, X-ray tests, two magnetic resonance imaging scans (MRIs), one epidural injection in her neck and one in her back, and a corticosteroid shot in her knee. Powell claimed that she had incurred over $75,000 in medical expenses as a result of the accident.

Powell called Thomas Fugger, an accident reconstruction and biomechanics consultant, to testify at trial. Fugger opined that Lemus's car was traveling approximately 13 to 15 miles per hour when it hit Powell's car, which caused Powell's car to "undergo a velocity change of between eight to 10 miles [per] hour." Considering Powell's claimed injuries, Fugger testified that "certainly the neck" would be "a potential area of exposure"from the accident, but that the lumbar spine would be "a bit less so from a biomechanical point of view." Dr. Michael Schiffman, an orthopedist who treated Powell, reviewed Powell's medical expenses and testified the costs of her treatment were generally reasonable, although some of the costs, including the MRIs and one of the epidural injections, were high.

Lemus called Dr. Burkhard, who disagreed with Fugger's opinions. He testified that the difference in speed between Lemus's car and Powell's car when the accident occurred was less than 10 miles per hour and that Powell's car would have increased no more than seven miles per hour as a result of the accident. He testified he would normally expect no injuries from that change in speed.

Dr. Stephen Rothman, a radiologist, reviewed Powell's X-ray scans and MRIs. Dr. Rothman compared an X-ray of Powell's lower back before the accident to an X-ray after the accident and concluded they looked the same. He noted that an MRI of Powell's neck revealed some abnormalities, but stated that they "represent abnormalities that are present for a very long period of time."

Dr. Robert Wilson, an orthopedist who examined Powell, described the accident as "very minor." He stated that "it's not impossible" the accident would have caused Powell some irritation and aggravation, but that after two to three months the treatment she received was "not going to be due to this accident." Dr. Wilson stated that a reasonable course of treatment for Powell after the accident would have included her visit to the emergency room, up to three months of physical therapy, a consultation and two or three follow up visits with a doctor, and a set of X-rays and MRIs. In his opinion, the reasonable cost ofsuch treatment was $5,362. He concluded the epidural injections Powell received were not medically necessary.

Lemus also called Dr. Henry Lubow, a physician specializing in medical forensics. Dr. Lubow testified about the reasonable value of the treatment provided by the doctor who recommended Powell receive epidural injections and the reasonable value of the injections. Powell's doctors charged $36,324 for these services, but Dr. Lubow said the reasonable value of the services was only $2,393 to $3,111. He did not give an opinion on whether the epidural injections were medically necessary.

A nine-member jury² unanimously awarded Powell $7,663 in damages—$4,663 for past economic expenses, $3,000 for past noneconomic damages, and nothing for future economic or noneconomic damages.³ Powell filed a motion for a new trial on several grounds, including that the trial court erroneously permitted Dr. Burkhard to testify and that the jury's damagesaward was inadequate. The trial court denied the motion, and Powell timely appealed from the judgment.

DISCUSSION

A. The Trial Court's Evidentiary Rulings Were Not an Abuse of Discretion

Powell argues the trial court erred by permitting Dr. Burkhard to testify and by allowing Dr. Lubow to testify about the reasonable value of Powell's medical treatment, which Dr. Lubow based in part on Medicare reimbursement rates. Neither argument has merit.

1. Standard of Review

"Except to the extent the trial court bases its ruling on a conclusion of law (which we review de novo), we review its ruling excluding or admitting expert testimony for abuse of discretion." (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773 (Sargon); accord, Pina v. County of Los Angeles (2019) 38 Cal.App.5th 531, 545.) Because "'[a]ction that transgresses the confines of the applicable principles of law is outside the scope of discretion,'" to "determine if a court abused its discretion, we must thus consider 'the legal principles and policies that should have guided the court's actions.'" (Sargon, at p. 773; accord, Pina, at p. 545.) "The standard is a deferential one, and an appellate court may not substitute its discretion for that of the trial court, even if it disagrees." (San Francisco Print Media Co. v. The Hearst Corp. (2020) 44 Cal.App.5th 952, 962.)

2. The Trial Court Did Not Err in Allowing Dr. Burkhard To Testify

"On receipt of an expert witness list from a party, any other party may take the deposition of any person on the list." (Code Civ. Proc., § 2034.410.)⁴ Section 2034.300, subdivision (d), provides "the trial court shall exclude from evidence the expert opinion of any witness that is offered by any party who has unreasonably...