Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County, Alan S. Kalkin, Judge, Super. Ct. No. EC039898
Blumberg Law Corporation, Ave Buchwald; Law Offices of John P. Rosenberg, John P. Rosenberg for Plaintiff and Appellant.
Wood, Smith, Henning & Berman, Kevin D. Smith, Anne K. McIntyre, Nicholas M. Gedo for Defendants and Respondents.
BOREN, P.J.
Appellant Patris Alikhani challenges a jury verdict in his favor and against respondents Warner Bros. Studio Facilities, Inc. (Warner Bros.), and Ronald Liberotti (Liberotti) on the grounds that the special verdict is inadequate and inconsistent as a matter of law.
We disagree. Given the evidence presented at trial, the jury’s award of essentially de minimus damages for past medical expenses ($1,372.43) and its award for future medical expenses ($5,000) are not inconsistent with the jury’s refusal to award damages for pain and suffering. The defense strongly challenged the veracity of appellant’s evidence about the extent of his injuries, and the jury quite evidently found appellant’s evidence about the extent of his injuries lacking in credibility.
Appellant’s remaining challenges to the judgment, including his objections to (1) respondents’ Code of Civil Procedure section 998 offer, and (2) the trial court’s order in connection with his motion to tax respondents’ costs, are also unavailing. Accordingly, we affirm the trial court’s judgment.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
The majority does not address this argument in its analysis.
FACTUAL AND PROCEDURAL BACKGROUND
The Pleadings
On November 16, 2004, appellant initiated this action against respondents for injuries he suffered in a two-vehicle collision; the other car was being driven by Liberotti, during the course and scope of his employment with Warner Bros. Respondents answered, and the matter was set for trial. Prior to trial, respondents served on appellant by mail a written offer to compromise pursuant to section 998. Appellant did not accept the offer.
Trial
At the commencement of the trial, respondents stipulated to liability for the collision.
During trial, the parties offered competing evidence regarding appellant’s injuries. Appellant offered his testimony, expert testimony, and documentary evidence regarding his injuries and the medical procedures he endured, including an MRI on July 16, 2003, that cost $1,372.43. Two physicians testified for respondents; while they agreed that appellant had suffered injuries, they disputed the extent of his injuries and whether he required the numerous medical procedures prescribed by his treating physicians.
Evidence showed that the rear-end collision involved a change of velocity of perhaps no more than 10 to 13 miles per hour. Appellant had no bruises, cuts, or lacerations immediately after the collision, and his knee, arm, and back pain were treated initially with heat and ice.
A prominent orthopedic surgeon testified as a defense expert witness after conducting a physical examination of appellant. His evaluation was that appellant “was essentially normal” both as to his back and his knee. He examined the MRI scan which appellant’s M.D. determined showed a need for knee surgery and opined that the MRI scan did not show a meniscus tear as appellant’s physician had claimed and that appellant should not have had the knee surgery. Evidence was also presented that appellant had been involved in several prior accidents and been treated during the years leading up to the present accident for back and other pain. Lastly, a surveillance video of appellant cleaning his car impaired appellant’s credibility as to his claims that his daily lifestyle was ruined by the injuries from the accident.
Special Verdict
On February 17, 2006, the jury returned its special verdict. It found that respondents’ negligence was “a substantial factor in causing harm to” appellant. The jury determined that appellant suffered $10,872.43 in damages, broken down as follows: (1) $1,372.43 in “[p]ast economic damages for medical bills”; (2) $4,500 in “[p]ast economic damages for lost earnings”; and (3) $5,000 in “[f]uture economic damages for medical bills.” The jury awarded no past or future noneconomic damages, including physical pain and mental suffering.
Judgment
Judgment was entered on March 9, 2006, in favor of appellant in the amount of $10,872.43. In the judgment, the trial court further ordered that because appellant’s recovery was less than the section 998 offer served by respondents, respondents were entitled to recover all expert fees and costs, in the total amount of $101,361.82.
Appellant’s Motion For A New Trial
On March 10, 2006, appellant moved for a new trial. He argued that because the jury failed to award him general damages for pain and suffering, the damage award was inadequate as a matter of law. He claimed: “The lack of a general damage award to [appellant], in light of the jury award of economic damages for medical bills and lost earnings, creates an irreconcilable conflict and discrepancy in the verdict.” Additionally, he asserted that the sum awarded for past economic damages for medical bills, $1,372.43, which corresponded with one bill for an MRI that appellant received three and a half months after the accident, was insufficient and not justified by the evidence.
Respondents opposed appellant’s motion. Preliminarily, they argued that appellant’s motion was procedurally defective. Substantively, respondents asserted that while appellant had significant prior injuries, he sustained virtually no injuries as a result of the subject accident. Moreover, respondents reminded the trial court of its evidence that the treatments appellant received were neither necessary nor appropriate and that appellant’s testimony seemed to be lacking in credibility.
On April 5, 2006, the trial court denied appellant’s motion. In so ruling, the trial court commented that “I can see where the jurors had serious problems with the credibility of [appellant].” While the trial court understood why the jury would award appellant damages for one MRI, it noted that “the jury could infer that [appellant’s] injuries were really de minimus” and that the treatments were not medically necessary. Ultimately, it found that appellant “was not a very credible witness” and that “the jurors did their job.”
Appeal
On May 22, 2006, appellant timely filed a notice of appeal from the judgment and the trial court’s order denying his motion for new trial.
DISCUSSION
I. The Jury’s Failure To Award Damages For Pain And Suffering
A. Standard Of Review On A Motion For New Trial
Section 657, which specifies the grounds for a new trial, provides in relevant part: “The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party: [¶] . . . [¶] 5. Excessive or inadequate damages. [¶] . . . [¶] [A] new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the [trial] court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision.” “[A]s a general matter, orders granting a new trial are examined for abuse of discretion.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859.)
B. Where, As Here, The Evidence As To Injuries Was Conflicting, The Award Of Damages Was Within The Jury’s Discretion
Appellant claims that the damage award is inconsistent and inadequate as a matter of law. According to appellant, the jury’s award of past and future medical expenses and past loss of earnings is inconsistent with its award of zero for pain and suffering. We find there is no inconsistency nor inadequacy of damages.
Appellant did not raise this issue in the trial court; however, he was not required to object below in order to preserve the issue for appeal. (Lambert v. General Motors (1998) 67 Cal.App.4th 1179, 1182.)
For physical injury suffered in a low-speed, rear-end collision, the jury awarded appellant a total of $10,872.43 as follows: (1) $1,372.43 in “[p]ast economic damages for medical bills”; (2) $4,500 in “[p]ast economic damages for lost earnings”; and (3) $5,000 in “[f]uture economic damages for medical bills.” In our view, the jury’s award of past and future medical expenses and past loss of earnings is not inconsistent with its award of $0 for pain and suffering, nor are the damages inadequate. At trial, the defense strongly challenged the veracity of appellant’s evidence about the extent of his injuries. Given the totality of the evidence presented at trial, it is not difficult to comprehend the jury’s verdict in this case and the logic of its award of damages.
“‘The question as to the amount of damages is a question of fact. In the first instance, it is for the jury to fix the amount of damages, and secondly, for the trial judge, on a motion for a new trial, to pass on the question of adequacy. Whether the contention is that the damages fixed by the jury are too high or too low, the determination of that question rests largely in the discretion of the trial judge. The appellate court has not seen or heard the witnesses, and has no power to pass upon their credibility. Normally, the appellate court has no power to interfere except when the facts before it suggest passion, prejudice or corruption upon the part of the jury, or where the uncontradicted evidence demonstrates the award is insufficient as a matter of law. In determining whether there has been an abuse of discretion, the facts on the issue of damage most favorable to the respondent must be considered.’ [Citation.]” (Miller v. San Diego Gas & Elec. Co. (1963) 212 Cal.App.2d 555, 558-559.)
The leading case on the failure of a jury to award damages for pain and suffering where a plaintiff has incurred physical injury is Haskins v. Holmes (1967) 252 Cal.App.2d 580. The court in Haskins noted that the determination of damages is “within the province of the jury and will not be disturbed unless an abuse of discretion clearly appears.” (Id. at p. 584.) The court found, however, that where there is no conflict in the evidence as to the factual issues, that is, there are “uncontradicted facts” regarding the “nature and extent of the injuries” (id. at p. 585-586), an award for the special damages only with no allowance for pain and suffering may be set aside as an abuse of jury discretion. Looking at the issue another way, the Haskins court stated that the jury’s determination may be reversed “‘where the uncontradicted evidence demonstrates that the award is insufficient as a matter of law.’ [Citations.]” (Id. at p. 586, emphasis added.) The court also observed that in making such a “reappraisal” of the evidence, “the appellate court may use common sense.” (Id. at p. 585.)
A jury damages award that does not account for pain and suffering is not necessarily inadequate as a matter of law. (Haskins v. Holmes, supra, 252 Cal.App.2d at p. 586.) Every such case depends on its particular facts. (Miller v. San Diego Gas & Elec. Co., supra, 212 Cal.App.2d at p. 558.)
Thus, a jury may properly conclude that a plaintiff suffered little or no new injury and find that the medical expenses paid were not caused by the fault of the defendants. Under such circumstances, a verdict may properly be rendered for an amount less than, or for no more than, the medical expenses. Where there is a conflict in the evidence as to the extent of the injuries and as to whether the medical expenses were the proximate result of the automobile collision complained of, the jury resolves the conflict. Thus, a jury may well believe that a plaintiff’s injuries are at most minimal, to the point of being incapable of evaluation, and that the plaintiff will be fairly compensated if he only receives his special damages. An appellate court should not override the jury’s inherent right to pass upon the credibility of the evidence and the witnesses. (Miller v. San Diego Gas & Elec. Co., supra, 212 Cal.App.2d at p. 559.)
In the instant case, the evidence as to appellant’s injuries was certainly not “uncontradicted.” Indeed, the defense challenged appellant’s injury claims most strenuously. Thus, the facts presented to the jury were in conflict and ripe for jury resolution.
Under respondents’ evidence, the jury could well conclude that in the collision of the Ford Windstar minivan with the back of appellant’s 1987 Toyota pickup in November 2004, the change in velocity was no more than 10 to 13 miles per hour and that appellant had not suffered any significant new injury. Appellant had no bruises, cuts, or lacerations immediately after the collision. Moreover, appellant’s testimony was sometimes evasive and peculiar, and the defense severely impeached him on cross-examination.
Respondents’ evidence was that the Windstar van was traveling approximately 16 miles per hour and appellant’s pickup was traveling at approximately five miles per hour.
The jury heard evidence that appellant had been involved in at least three prior accidents: (1) a “rear-ender” traffic collision in December 1999, in which appellant suffered back injury and bruised knees; (2) a freeway accident in February 2001 that aggravated appellant’s back and caused a thumb injury and a sore neck; (3) a slip-and-fall accident in November 2001 that resulted in further back pain. The jury also heard evidence that appellant, who had a degree from the University of Southern California and had also attended graduate school at Columbia University, was 36 years old and at the time of this accident was employed in the menial job of a courier. Appellant explained that he had not been employed for a substantial period because “I really didn’t want to.”
Appellant testified that, as a result of the collision with respondent’s vehicle, he suffered knee, arm, and back pain which was subsequently treated with ice and heat. Later, appellant received physical therapy and then had an MRI. Still later, he underwent endospinal surgeries. Appellant also admitted that at the time of the accident he was still experiencing back pain from his earlier accidents. Appellant’s medical records relating to his treatments for the injuries from his prior accidents contained statements from appellant that, despite the treatments, his condition had improved “very little” and that he remained in pain.
Although appellant presented evidence that his medical expenses totaled approximately $150,000, the jury awarded only $1,372.43, which was the cost of his diagnostic MRI. Respondents’ expert witnesses testified based on the medical records and a physical examination of appellant that appellant had suffered no more than a neck strain; that appellant did not have a herniated disc; that reasonable treatment for appellant would have been physical therapy for no more than three months; and that appellant should not have had surgery.
Dr. Ronald Kvitne, an orthopedic surgeon affiliated with the renowned Kerland-Jobe Clinic, testified as a defense expert witness after conducting a physical examination of appellant. His evaluation was that the “patient was essentially normal” both as to his back and his knee. He examined the MRI scan, which appellant’s M.D. determined showed a need for knee surgery. In Dr. Kvitne’s opinion, the MRI scan did not show a meniscus tear as appellant’s physician had claimed and appellant should not have had the knee surgery.
The defense also presented the jury a surveillance video depicting appellant in his daily activities. The video showed appellant cleaning and vacuuming his automobile with no apparent limitation in his range of movements. This evidence contradicted appellant’s testimony about how the injuries from this accident had severely crimped his lifestyle.
It is reasonably probable that the jury either did not find the bulk of appellant’s evidence credible and concluded that he was a malingerer or that the jurors simply concluded that his postaccident pain and suffering was attributable to his previous accidents. Awarding appellant the cost of his MRI is neither inconsistent with nor unreasonable as to those findings and conclusions. The jury could properly conclude that because of the 2003 accident appellant was entitled to an MRI to determine if he had suffered additional injury to his back.
As to the $5,000 award for future medical bills, the jury may have acted in a sympathetic, cautionary, or protective fashion, given the imprecision of back injury evaluations. The jurors may have also concluded that a provision for future medical expenses was appropriate because, although appellant had not convincingly demonstrated that he had suffered new injury to his back, subsequent diagnoses or deterioration in appellant’s condition might warrant additional treatment.
We therefore hold that the trial court properly denied appellant’s motion for new trial and that the jury did not abuse its discretion regarding the award of damages.
II. The Award Of Costs To Respondents
A. Waiver Of Section 998 Issue
Appellant contends that the trial court erred in awarding costs to respondents under the provisions of section 998. Appellant claims that respondents’ offer to settle did not remain open for the required number of days. Appellant’s failure to raise an objection in the trial court, however, waives appellant’s right to raise the issue on appeal.
Section 998 provides: “Not less than 10 days prior to commencement of trial or arbitration . . . any party may serve an offer in writing upon any other party to the action to allow judgment to be taken or an award to be entered in accordance with the terms and conditions stated at that time.” (§ 998, subd. (b).) That section further provides: “If the offer is not accepted prior to trial or arbitration or within 30 days after it is made, whichever occurs first, it shall be deemed withdrawn . . . .” (§ 998, subd. (b)(2).)
Finally, section 998 also provides: “If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant’s costs from the time of the offer. In addition, in any action or proceeding other than an eminent domain action, the court or arbitrator, in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant.” (§ 998, subd. (c)(1).)
In the case at bench, respondents mailed their offer to settle on December 19, 2005. At no time did appellant accept the offer. Appellant does not dispute that he failed “to obtain a more favorable judgment.” Appellant also agrees that the offer remained open for 30 days from the date it was mailed. Nonetheless, appellant argues that the offer must be deemed withdrawn after the 30th day following the mailing and became therefore invalid because it did not remain open for 35 days. Appellant does not contend that respondents actually withdrew the offer before the 35-day period expired.
Moreover, appellant concedes that he did not challenge the application of section 998 in the proceedings below. Respondents contend that appellant has waived the issue by failing to object to the trial court’s award of costs pursuant to section 998. We agree.
Appellant concedes further that such a failure to object normally constitutes a waiver of an appellate issue. (See Telles Transport, Inc. v. Workers’ Comp. Appeals Bd. (2001) 92 Cal.App.4th 1159, 1167.) But, he urges that this court should exercise its discretion to review the issue nonetheless and cites Poster v. Southern Cal. Rapid Transit Dist. (1990) 52 Cal.3d 266, 271.
An appellate court does have discretion to consider for the first time on appeal an issue of law based on undisputed facts. (Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 24.) We decline to so exercise our discretion here, as we generally reserve our prerogative for those instances where a new issue of law is involved or there are other compelling circumstances--none of which appear here. The issue appellant tries to raise here was essentially decided in Poster v. Southern Cal. Rapid Transit Dist., supra, 52 Cal.3d 266, 272-275 (holding that the five-day extension for responses to notices where service is by mail (§ 1013) applies to the service of offers to compromise made pursuant to section 998). That case also states that “when a section 998 offer is served by mail . . . the statutory period for response runs from service by mail.” (Poster, at p. 274, fn 4.))
Were we to review this issue on its merits, we would not find in appellant’s favor. Even after 35 days elapsed from the date of service by mail, appellant did not make any effort to accept the offer, nor did respondents do anything to mislead or impede appellant. We also reject the notion that the passing of 30 days from the date of service by mail somehow operates to work--as a matter of law--a withdrawal of the offer. Such a holding would be contrary to the Supreme Court’s decision in Poster v. Southern Cal. Rapid Transit Dist., supra, 52 Cal.3d 266, 272-275.
B. Motion To Tax Costs
Appellant contends that the trial court erred in not taxing the costs requested by respondents. Specifically, appellant claims that the trial court should not have awarded respondents the costs incurred in engaging a private investigator to make the surveillance video shown to the jurors. The costs awarded for that expense were $9,094. We observe that the trial court did not abuse its discretion.
Appellant bases his contention on section 1033.5, which disallows as costs certain items, including “Investigation expenses in preparing the case for trial.” (Subd. (b)(2).)
In Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, the Court of Appeal interpreted section 1033.5 and held that costs not “expressly prohibited under subdivision (b) . . . may nevertheless be recovered if, in the court’s discretion, it is ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Id. at p. 1103.) Among the expenses which the court in Science Applications Internat. Corp. held were allowable was a “CHP video.” (Id. at p. 1104.)
Here, the trial court expressly observed that the videotape of appellant engaged in cleaning his car was very probative and showed the jurors that appellant “really wasn’t injured.” Subdivision (c)(4) of section 1033.5 provides: “Items not mentioned in this section and items assessed upon application may be allowed or denied in the trial court’s discretion.” Because the use of the investigator here may be viewed as something other than “[i]nvestigation expenses in preparing the case for trial” (§1033.5, subd. (b)(2)) and more akin to expenses for “[m]odels and blowups of exhibits . . . [that] were reasonably helpful to aid the trier of fact” (§ 1033.5, subd. (a)(12)), we believe the trial court had such discretion and did not abuse it. Under the circumstances of this case, these expenses were “‘reasonably necessary to the conduct of the litigation.’” (Science Applications Internat. Corp. v. Superior Court, supra, 39 Cal.App.4th 1095, 1103.) The trial court did not err.
DISPOSITION
The judgment of the trial court is affirmed. Respondents are entitled to costs on appeal.
I concur: CHAVEZ, J.
ASHMANN-GERST, J.—Dissenting
I respectfully dissent. I would reverse the trial court judgment on the grounds that the special verdict is inadequate and inconsistent as a matter of law. Specifically, the jury’s award of essentially de minimis damages for past medical expenses ($1,372.43) is inconsistent with its award for future medical expenses ($5,000) and with its failure to award appellant Patris Alikhani any damages for pain and suffering. I would reverse the trial court’s judgment and remand the matter for a new trial, limited to the issue of appellant’s damages.
Standard of review
The majority correctly, yet incompletely, sets forth the applicable standard of review: “[A]s a general matter, orders granting a new trial are examined for abuse of discretion.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859.) “But it is also true that any determination underlying any order is scrutinized under the test appropriate to such determination.” (Ibid.) At issue here is the trial court’s order denying appellant’s motion for a new trial on the grounds that the jury’s special verdict findings were inconsistent. “‘[A] special verdict’s correctness must be analyzed as a matter of law.’ [Citations.] . . . When a special verdict is involved as here, a reviewing court does not imply findings in favor of the prevailing party.” (City of San Diego v. D.R. Horton San Diego Holding Co., Inc. (2005) 126 Cal.App.4th 668, 678.)
“‘Inconsistent verdicts are “‘against the law’”’ and are grounds for a new trial. [Citations.] ‘The inconsistent verdict rule is based upon the fundamental proposition that a factfinder may not make inconsistent determinations of fact based on the same evidence. . . .’ An inconsistent verdict may arise from an inconsistency between or among answers within a special verdict . . . or irreconcilable findings. [Citation.] Where there is an inconsistency between or among answers within a special verdict, both or all the questions are equally against the law. [Citation.] The appellate court is not permitted to choose between answers.” (City of San Diego v. D.R. Horton San Diego Holding Co., Inc., supra, 126 Cal.App.4th at p. 682.)
The damage award is inconsistent and warrants a new trial
Appellant claims that the damage award is inconsistent and inadequate as a matter of law. According to appellant, the jury’s award of past and future medical expenses and past loss of earnings is inconsistent with its zero award for pain and suffering. I agree. It is simply illogical for the jury to have determined that appellant suffered only nominal injuries, thereby entitling him to recover $1,372.43 for a single MRI and nothing for past pain and suffering, yet also award him $5,000 for future medical bills. By finding that respondents’ negligence would cause appellant to incur $5,000 in future medical expenses, the jury must have found that appellant was injured and that his injuries would require future medical care. Yet that finding cannot be reconciled with the jury’s failure to award appellant any damages for pain and suffering and it cannot be squared with the jury’s finding that appellant was only entitled to recover the cost of one MRI.
Respondents defend the judgment, arguing that the jury must not have believed appellant; it must have determined that appellant “sustained no real injury in the subject accident, but that it was nonetheless appropriate that he undergo an MRI study as a precautionary measure.” The majority adopts this argument, concluding “that the jury either did not find the bulk of appellant’s evidence credible and concluded that he was a malingerer or that the jurors simply concluded that his postaccident pain and suffering was attributable to his previous accidents.” (Maj. Opn., p. 9.) While I agree that the jury was free to find that appellant suffered no injury and that his testimony was not credible, the jury’s special verdict does not indicate such a finding. After all, if the jury did not find appellant credible, why did it award him $5,000 for future medical expenses? He would not be entitled to monies for future medical bills if he did not sustain any injuries.
The special verdict is also inconsistent because it fails to award appellant damages for pain and suffering. In some cases, courts have found jury awards that fail to compensate for pain and suffering inadequate as a matter of law. (See, e.g., Haskins v. Holmes (1967) 252 Cal.App.2d 580, 585–586 (Haskins) [award insufficient where plaintiff sustained severe head injuries necessarily requiring surgery, but the trial judge awarded only $88.63 in excess of the plaintiff’s actual medical expenses, in effect “‘allowing nothing for pain and suffering’”; it was “‘patently obvious’” that “‘substantial pain, suffering, shock and inconvenience’” necessarily and inevitably accompanied the injuries]; Dodson v. J. Pacific, Inc. (2007) 154 Cal.App.4th 931, 936 (Dodson).) The courts have also held, however, that an award that does not account for pain and suffering is “not necessarily inadequate as a matter of law” (Haskins, supra, at p. 586), and that “[e]very case depends upon the facts involved.” (Miller v. San Diego Gas & Elec. Co. (1963) 212 Cal.App.2d 555, 558 (Miller); see also Dodson, supra, at p. 936.)
As summarized in Dodson, supra, 154 Cal.App.4th at page 937, footnote omitted: “Cases finding an award inadequate for failure to account for pain and suffering ‘involved situations where the right to recover was established and . . . there was also proof that the medical expenses were incurred because of defendant’s negligent act.’ [Citation.] In such situations, Miller concluded, ‘[i]t is of course clear that . . . a judgment for no more than the actual medical expenses occasioned by the tort would be inadequate.’ [Citation.] On the other hand, a verdict may properly be rendered for an amount less than or equal to medical expenses in cases where, ‘even though liability be established, a jury may conclude that medical expenses paid were not occasioned by the fault of the defendants.’ [Citations.]”
Applying these legal principles to the instant situation, I conclude that the jury’s special verdict is inconsistent as a matter of law. I agree with the majority that, with respect to past medical expenses and pain and suffering, the jury may have believed that appellant underwent the MRI as a precautionary measure, and that he experienced no pain and suffering that would have entitled him to noneconomic damages. But, if that were the case, it makes no sense for the jury to award appellant $5,000 for future medical expenses, and award nothing for pain and suffering. In awarding appellant $5,000 for future medical expenses, the jury presumably found that appellant would be forced to submit to future medical procedures. Yet, the jury also determined that appellant was not entitled to recoup any monies for future pain and suffering. I cannot imagine what sort of medical procedures amounting to $5,000 the jury envisioned that appellant would be required to undergo that would not be preceded or accompanied by some pain and suffering, even if nominal.
In fact, the majority neglects to cite to any evidence that appellant would require some sort of cautionary medical treatment that would not be precipitated by any pain. There is no evidence cited, for example, that as a precautionary measure appellant should submit to multiple MRIs over the next few years. Rather, the majority’s conclusion that the award for future medical expenses might compensate appellant for “subsequent diagnoses or deterioration” is speculative at best. (Maj. Opn., p. 9.) And, in reaching this unsubstantiated conclusion, the majority ignores the primary basis for my objection to the special verdict—wouldn’t that deterioration have to be associated with some sort of pain? Otherwise, why else would appellant be prompted to pursue any medical treatment, even just several MRIs?
Notably, respondents’ brief is silent regarding (1) the obvious inconsistency between the failure to award compensation for pain and suffering and the award for future medical expenses, and (2) the discrepancy between the awards for past and future medical expenses. Instead, they urge the Court of Appeal to affirm on the grounds that the cases cited in appellant’s opening brief are “distinguishable . . . because they all involve situations in which a plaintiff sustained serious, objectively-verifiable injuries.”1 (See, e.g., Gallentine v. Richardson (1967) 248 Cal.App.2d 152; Haskins, supra, 252 Cal.App.2d at pp. 584–585; Buniger v. Buniger (1967) 249 Cal.App.2d 50; Chinnis v. Pomona Pump Co. (1940) 36 Cal.App.2d 633; Califano v. Automotive Rentals, Inc. (2002) 740 N.Y.S.2d 117; Kumorek v. Moyers (Ill.Ct.App. 1990) 561 N.E.2d 212.) I find respondents’ efforts are unavailing. What respondents ignore is the fact that the jury here found, at least in part, that appellant did suffer some sort of injury that requires future medical care. That finding cannot be reconciled with the jury’s simultaneous determination that appellant (1) only incurred past medical expenses that can be attributed to respondents’ negligence in the form of one MRI, and (2) is not entitled to any damages for pain and suffering. It follows that the jury verdict is inconsistent.
In reaching its conclusion, the majority overlooks Dodson, supra, 154 Cal.App.4th 931, a closely analogous case. In that case, the plaintiff sued a company for general negligence and premises liability arising out of the following incident: “[The defendant’s] employees were loading large cylindrical pieces of scrap metal onto [the plaintiff’s] truck. During the loading process, a metal cylinder . . . slipped from the prongs of the forklifts, and fell onto and rolled off [the plaintiff’s] truck. [The plaintiff], who was standing behind the truck when the cylinder slipped and began to roll, ran to avoid the rolling cylinder, tripped on pea gravel on the ground, and fell. He slid into several steel posts and struck the left side of his back and neck on the posts.” (Id. at p. 933.)
Following visits with several physicians, the plaintiff experienced pain and underwent surgery. (Dodson, supra, 154 Cal.App.4th at pp. 933–934.) Thereafter, he filed his lawsuit, seeking over $150,000 in damages. (Id. at pp. 934–935.) The jury found that the plaintiff suffered economic damages of $16,679, but suffered no noneconomic damages. (Id. at p. 935.) The jury also found that 50 percent of the negligence was attributable to the plaintiff. (Ibid.) Thus, judgment was entered in the plaintiff’s favor in the amount of $8,339.50. (Ibid.)
The plaintiff then filed a motion for a new trial on the issue of noneconomic damages or, in the alternative, an additur to the judgment in the amount of $150,000. (Dodson, supra, 154 Cal.App.4th at p. 935.) In part, the plaintiff argued that because the jury found that the plaintiff had been injured, “‘there obviously ha[d] to be some pain and suffering associated with those injuries.’” (Id. at p. 935, fn. 1.) The trial court was not persuaded, commenting that it thought the plaintiff was malingering and that the jury either thought the plaintiff was malingering or overstating his injuries. (Ibid.)
The plaintiff appealed the judgment, arguing that the jury failed to compensate him for pain and suffering. (Dodson, supra, 154 Cal.App.4th at p. 935.) The Court of Appeal agreed, finding “that the failure to award any damages for pain and suffering resulted in a verdict that was inadequate as a matter of law.” (Id. at p. 936.) After reviewing the applicable legal precedents, the court concluded that “the factual conflicts that Miller and Haskins tell us may justify the jury’s failure to award noneconomic damages—whether the plaintiff received any substantial injury or suffered any substantial pain; whether medical treatment was actually given or was given as a result of the injuries; and whether the medical treatment was reasonable or necessary—were resolved by the jury in its special verdict.” (Id. at p. 937.)
The same is true here. As in Dodson, we know that respondents’ negligence was a substantial factor in causing harm to appellant; the jury expressly decided that issue in its special verdict. We also know that the jury awarded appellant $5,000 for future medical bills. (Dodson, supra, 154 Cal.App.4th at pp. 937–938.) A plaintiff who will be forced to undergo some sort of medical procedure in the future will incur some pain and suffering that will prompt his need to submit to such a procedure, even if the procedure itself is not painful. Under these circumstances, the jury’s award of damages for future medical expenses is inconsistent with its failure to award any damages for pain and suffering.
Because the jury verdict is inconsistent and inadequate as a matter of law, I conclude that the trial court’s order denying appellant’s motion for a new trial was an abuse of discretion. Accordingly, I would reverse the judgment and remand the matter for a new trial limited to the issue of the amount of appellant’s damages. (See, e.g., Dodson, supra, 154 Cal.App.4th at p. 938.)