Opinion
C076900
03-02-2018
ROBERT DUNLAP et al., Plaintiffs and Respondents, v. FOLSOM LAKE FORD, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 34-2008-00019350CUPAGDS)
Plaintiff Robert Dunlap was severely injured when he lost control of a borrowed Ford F-250 pickup truck towing a van, after the van's right front tire blew out and the truck's steering locked. Plaintiff and his wife, Jessica Dunlap, sued the seller of the used truck -- defendant Folsom Lake Ford (FLF) -- alleging FLF was liable for failing to replace the truck's worn ball joints, which caused the truck's steering to lock.
Vehicle insurers destroyed the truck and the van for salvage before experts could inspect them, through no fault of the parties.
A jury found defendant liable and awarded damages to the Dunlaps.
FLF appeals, contending plaintiffs' expert evidence was speculative, and the destruction of the vehicles left plaintiffs unable to prove causation. FLF argues the trial court made evidentiary and instructional errors in allowing the case to go to the jury, and the court erred in denying FLF's motions for judgment notwithstanding the verdict (JNOV) or new trial.
We conclude FLF fails to show grounds for reversal, and we affirm the judgment.
FACTS AND PROCEEDINGS
A. The Accident
On November 2, 2007, plaintiff Robert Dunlap borrowed the 2004 Ford F-250 Super Duty diesel pickup truck from his close friend William Chapman, who bought it used from FLF in May 2007. Plaintiff and his brother-in-law Kenneth Waltman hitched a 1974 Ford Econoline van to the truck and set out for Kingman, Arizona. They drove over 600 miles without incident.
The next day, November 3, 2007, Dunlap was driving the truck 65 to 70 miles per hour in the fast lane on an Arizona highway when he heard a loud bang. The truck veered toward the center median. He tried to adjust the steering to the right, but the steering wheel felt locked and would not move, though it otherwise felt normal and was not vibrating. Waltman saw Dunlap trying to move the steering wheel but there was no give; it was like the steering wheel was locked.
The truck entered the center median, rolled two and a quarter times and came to a stop resting on the passenger side of the truck with the van upside down.
After the accident, Dunlap learned that the loud bang he heard was a "blowout" (sudden deflation) of the van's right front tire.
Before the parties could have their experts inspect the truck or van, the insurers destroyed the vehicles, through no fault of the parties. Photographs of the vehicles at the accident scene were admitted into evidence.
B. The Truck's Mechanical History
FLF first acquired the used truck in February 2007. It was already outfitted with oversized wheels and tires and a lift kit that raised the truck one inch. Although FLF's practice is to put used vehicles through a 101-point inspection before selling them, FLF was unable to produce any record of such inspection for this truck.
In March 2007, FLF sold the truck to nonparty Ronald Sample, who brought it back for service two days later because the steering was stiff; the truck tended to follow grooves in the pavement; and if it hit a bump or pothole the front end would "violently shake and shimmy." FLF's technician said this was "normal" for trucks with oversize tires and a lift kit and wrote on the service paperwork, "balance tires, also check alignment ok, not abnormal for bumpsteer with lifts or oversize tires/rims." "Bumpsteer," as described by the experts, is a rapid oscillation of the front wheels, an uncontrollable wobble where the wheels bump up and down and the tires lose contact with the road, causing the steering wheel to shake or shimmy and can cause the steering to lock.
Mr. Sample continued to experience the same steering problems, brought the truck back again for service, and was told nothing could be done; the steering issue was "normal" and big trucks "do that." After three more weeks of intermittently experiencing the same steering problem, Mr. Sample persuaded FLF to take back the truck. FLF's reconditioning technician Richard Hatch inspected the truck in April 2007 but any findings are unclear.
On May 26, 2007, the Chapmans purchased the truck from FLF, with 56,525 miles on it. Mrs. Chapman testified at trial; Mr. Chapman's deposition testimony was read to the jury.
On July 19, 2007, the Chapmans brought the truck back to FLF for service regarding a steering problem. Both had experienced problems with the steering "locking up," which they first noticed a few days after buying the truck. Mr. Chapman said the steering would just lock in a straight position as he drove on the freeway.
FLF's service technician David Uhren determined that all four of the truck's ball joints were worn out and needed to be replaced. Ball joints are part of a vehicle's steering and suspension systems and hold the wheel to the axle and carry the weight-bearing load of the vehicle.
Uhren wrote on the invoice for the service visit: "ball joints worn." He did not document degree of wear, which plaintiffs' expert testified is required by Bureau of Automotive Repair (BAR) standards. Although Uhren believed the ball joints needed to be replaced, and that the camber and caster in the steering should be aligned, he did not write those recommendations or the degree of wear of the ball joints on the invoice. But he did write on the invoice the price for parts and labor (eight hours total) to replace the ball joints and align the camber/caster.
As service technician, Uhren did not speak directly to the vehicle owners but gave the paperwork to service advisor Donald Brown. Although the paperwork was given to the Chapmans, there is no evidence FLF verbally communicated the issue of the worn ball joints to the Chapmans. Such communication is required by BAR regulations, as plaintiffs' expert testified. The Chapmans testified they were only told that the issues they had were "normal" for a truck with a lift kit and oversized wheels, and the steering was fine, and the truck was safe to drive.
Between the July 2007 service and the November 2007 accident, the Chapmans put more than 15,000 miles on the truck while continuing to experience intermittent steering issues. Mrs. Chapman noticed the steering column shake when she rode as a passenger.
C. Evidence of Causation
1. Plaintiffs' Experts
FLF filed a motion in limine (No. 19) to exclude plaintiffs' experts from testifying about causation on the ground that their testimony would be speculative, given the destruction of the vehicles. The trial court denied the motion in limine. The court also allowed into evidence demonstrative videos used by the experts -- a "wobble video" and a "towing video."
a. Plaintiffs' Automotive Expert John Martin
Plaintiffs' expert John Martin testified as an expert in forensic automotive investigation and repair. His training is in causation of component failure, not causation of accidents.
Martin summarized: The Ford F-250 was towing the van. The van's front right tire blew, which jolted the rear of the F-250 to the right and, given the worn-out ball joints, caused the truck's front tires to move independently of each other, in opposition to each other (stubbing), which prevented the driver from being able to steer.
Martin explained the bases for his opinion. He based the "jolt" on the work of the accident reconstruction experts for both sides. Martin opined based on his own expertise that the oversized tires and lift kit raised the truck by one inch, which was not excessive, but which changed the steering geometry and placed strain on the front end components, including steering, which would cause them to wear out quicker.
Mr. Sample's complaints about the truck involved bumpsteer. The jury was shown a demonstrative video of bumpsteer -- the "wobble video" -- that Martin got from the internet. The video shows a pickup truck traveling on a highway while being videotaped from another vehicle. The truck operates normally, then hits a bump, and the front wheels oscillate up and down rapidly.
That the ball joints were worn out and needed replacement in July 2007 was established by FLF's technician. The notation on the invoice did not meet the BAR standard of care to communicate to the customer that the parts needed to be replaced. Ball joints cannot repair themselves. There was no evidence the ball joints were replaced (or that any other service was done on the truck), and so they were necessarily worn out at the time of the accident thousands of miles later. That the drivers experienced steering problems only intermittently was to be expected.
When ball joints wear out, they no longer distribute the weight of the vehicle properly, which strains the other components of the steering and suspension system, causing them to wear out prematurely. This leads to additional bumpsteer, which accelerates the wear in other front end components. Worn-out ball joints can result in misalignment where the tires move in opposition to each other -- either "toe-in" (front tires facing toward each other or "toe-out" (facing away from each other). Either misalignment would make it almost impossible to steer, particularly given the altered steering geometry caused by the lift kit and oversized tires. The weight of the van being towed behind the truck actually stabilized the truck's front end, by helping lift weight off the front end of the truck and the worn-out ball joints. When the van's tire blew out, it jolted the rear of the truck to the right and, given the worn-out ball joints, this caused the front tires to move independently and in opposition to each other, causing the inability to steer.
Martin opined there was a mechanical failure with the steering and suspension of the Ford F-250 truck at the time of the incident due to the worn-out ball joints. The steering complaints reported by the customers indicated the excessively worn ball joints allowed the tires to move in opposition of each other (stubbing), making the steering unresponsive. "And so what can happen is is [sic] when the vehicle jolted to the right in the rear and pushed the front of the vehicle to the left in the front, we call it stubbing of your toe, the tires start to stub, and when that happens all bets are off, it's like what you saw in the video of hitting the bump. [¶] And that sets off the front end, and in this case, when you couldn't get the steering wheel to respond, the tires are in opposition of each other, and when the tires go into opposition of each other, you don't have the strength to overcome it, especially on a lifted vehicle with the geometry changed, which that in itself puts stress on the front end . . . ."
Martin did not have physical evidence that these tires were in opposition at the time of the accident but relied on evidence that the ball joints were worn and his training, experience, and expertise. He did not have evidence of what direction the tires moved, "but I have common sense of working on these vehicles that when the rear end of the pickup was pushed to the right, jolted, the front of the pickup went to the left a little bit, so the tires would have been dragging towards the left."
The van was attached to the truck by an A-frame tow-bar hooked to the van's bumper and truck's trailer hitch. The truck (at about 7100 pounds) was more than twice as heavy as the van (about 3200 pounds). The van was well within the truck's towing capacity.
In Martin's opinion, it was "more likely true than not" that the worn-out ball joints caused the accident, and it was "not at all" a close call. In his opinion, if the ball joints had been replaced, "we would not be here today."
b. Plaintiffs' Accident Reconstruction Expert Stephen Watson
Stephen Watson, plaintiffs' accident reconstruction expert, opined: "The problem with the steering on this truck caused this incident and everything else here is just a variation on that same thing."
The weight of the van had a stabilizing effect on the truck. The sudden deflation of the van's tire would manifest itself as a jolt to the rear and right of the truck. The truck, which weighed twice as much as the van, could have been pulled over to the side of the road safely had the truck's steering been functioning properly.
That the steering locked was apparent even from the defense's diagram that showed the truck proceeding on a relatively gradual path to the left median and then off the road.
It was documented that the ball joints were bad. The extent of wear on the ball joints was unknown. The different owners and drivers all reported a steering problem, though some described a shimmy and others described a locking. "[D]ifferent people describe the same things different ways. The important point is there was a problem with the steering." Machines cannot heal themselves, but intermittent problems can come and go because as parts wear, it can move into different phases of deterioration.
It would have been nice to have the vehicles themselves available, though that may not have helped, because the photos showed the truck's steering damper was damaged in the accident, making it difficult to determine how it was performing before the accident.
Watson disagreed with the defense theory that the blown tire caused the van's front wheels to lock in a right turn position that exerted force on the truck through the tow-bar, pushing the truck into a counterclockwise spin, similar to a police-intervention technique (PIT) to stop fleeing suspects. Watson said the van could not lock in right-turn position without someone turning the van's steering wheel and, even if it could, that would make the two vehicles jack-knife, which would have bent the van's bumper and the tow-bar and created "yaw" or curved skid marks on the pavement. But the photographs did not show such evidence.
In plaintiffs' case-in-chief, Watson showed a video of his own Toyota truck towing a Volkswagen Rabbit with a similar tow-bar, to show how the towed vehicle follows the towing vehicle. In plaintiffs' rebuttal case, the court over defense objection allowed Watson to show a "towing video" he created in which the VW Rabbit already had a flat right front tire, just to show the stability of the tow bar, that he had no trouble steering when towing a car about half his truck's weight, even with a flat tire.
Watson agreed we do not know for sure what went wrong, but he was "extremely confident" that his conclusions were more probable than not.
2. Defense Experts
a. FLF's Accident Reconstruction Expert Steven Fenton
Fenton created his diagram using photogrammetry comparing accident scene photos with photos his team took four years later (after Arizona made changes to the road). He opined the van pushed the truck, causing the vehicles to jackknife. The jury was shown a demonstrative video showing police using a PIT maneuver to make a car spin. Fenton said the driver of the car being subjected to the maneuver cannot regain control by counter-steering because the tires have lost traction with the road.
b. Defense Metallurgist Dr. Ramesh Kar
Metallurgist Dr. Kar testified that, from a scientific standpoint, it is impossible to know if a particular part failed or contributed to a failure without examining the part and performing a scientific determination.
c. Defense Automotive Repair Expert Wayne Smith
FLF's own shop foreman, Wayne Smith, testified to his general experience as an expert on automotive repair, that he has not seen worn ball joints cause a severe toe-in or toe-out problem, nor lead to locked steering, without some other mechanical failure of, or damage to, the steering system. On cross-examination, Smith admitted that worn ball joints could put stress on other parts of the steering and suspension system and cause premature failure in other parts of the system.
D. The Verdict
The jury returned a special verdict finding FLF was negligent (by a vote of 10 to two); its negligence was a substantial factor in causing harm to Robert Dunlap (by a vote of nine to three); Robert Dunlap was not negligent (unanimous); and FLF was 100 percent responsible for the harm (vote 10 to two). The jury awarded a total of $6,976,934 in damages to Robert Dunlap and $500,000 to Jessica Dunlap for loss of consortium.
E. Postjudgment Motions
FLF moved for judgment notwithstanding the verdict or new trial on various grounds including the issues raised on appeal.
The trial court denied both motions.
F. The Appeal
FLF appeals from the judgment and orders denying the post-judgment motions.
DISCUSSION
I
Substantial Evidence of Causation
FLF first argues it was entitled to JNOV because there was no substantial evidence of causation.
FLF argues "in the alternative" that it was entitled to a new trial due to insufficiency of the evidence, but FLF fails to acknowledge the standard of review for motions for new trial or offer any analysis or authority for a new trial based on lack of substantial evidence, and we therefore do not address this alternative contention. (Ewald v. Nationstar Mortgage, LLC (2017) 13 Cal.App.5th 947; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) We address post FLF's arguments that it is entitled to a new trial because of evidentiary errors made by the trial court.
A. Legal Standards for JNOV
A motion for JNOV (Code Civ. Proc., § 629) may be granted in favor of a defendant only when the evidence, viewed in the light most favorable to the verdict secured by the plaintiff, establishes that there is no substantial evidence to support the verdict, and on appeal we consider whether any substantial evidence -- contradicted or uncontradicted -- supports the jury's conclusion. (Cooper v. Takeda Pharmaceuticals America, Inc. (2015) 239 Cal.App.4th 555, 572-573 (Cooper).) The function of a motion for JNOV is to prevent the moving defendant from the necessity of undergoing any further exposure to legal liability when there is insufficient evidence for an adverse verdict. (Ibid.) Conflicts in the evidence are resolved against the moving defendant and in favor of the plaintiff; all reasonable inferences to be drawn from the evidence are drawn against the moving defendant and in favor of the plaintiff. (Ibid.) We review the trial court's order de novo, i.e., we determine whether substantial evidence supports the verdict, considering the evidence in the light most favorable to the party obtaining the verdict. (Ibid.)
B. Legal Standards for Causation
To meet their burden to show causation, plaintiffs had to show that a breach of duty by FLF was a "substantial factor" in the injuries. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) Proof of causation may be based on circumstantial evidence and reasonable inferences to be drawn from such evidence, but mere speculation and conjecture are insufficient. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 488 (Leslie G.).) The inferences favorable to the plaintiffs must be more reasonable or probable than those against them. (Id. at p. 483.)
Expert testimony on causation can enable a plaintiff's case to go to the jury only if it establishes a reasonably probable causal connection between the act and the injury. (Cooper, supra, 239 Cal.App.4th at p. 577.) " ' . . . A possible cause only becomes "probable" when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury. [Citation.]' [Citation.]" (Ibid. [medical malpractice case].)
" '[P]roffering an expert opinion that there is some theoretical possibility the negligent act could have been a cause-in-fact of a particular injury is insufficient to establish causation. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 775-776 [(Saelzler)] [expert testimony positing a " 'mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant' "]; accord, Leslie G.[, supra,] 43 Cal.App.4th [at p.] 487.) Instead, the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause-in-fact of the plaintiff's injury.' [Citation.]" (Cooper, supra, 239 Cal.App.4th at p. 578; orig. italics.)
" ' " 'It is not necessary in the trial of civil cases that the circumstances shall establish the negligence of the defendant as the proximate cause of injury with such absolute certainty as to exclude every other conclusion. It is sufficient if there is substantial evidence upon which to reasonably support the judgment. [Citation.]' " [Citation.]' . . . ." (Cooper, supra, 239 Cal.App.4th at p. 580; orig. italics; Garbell v. Conejo Hardwoods, Inc. (2011) 193 Cal.App.4th 1563 (Garbell).) "California has rejected the notion that an expert must 'exclude all "possibilities" ' in reaching a specific causation opinion. [Citation.] Bare conceivability of another possible cause does not defeat a claim; the relevant question is whether there is 'substantial evidence' of an alternative explanation . . . ." (Cooper, supra, 239 Cal.App.4th at pp. 585-586.)
C. Application to this Case
The record supports the finding of causation based on nonspeculative expert evidence. Martin knew the truck had worn-out ball joints and steering-related problems. Worn ball joints can cause the tires to go into opposition. Watson testified the accident was precipitated by the jolt to the truck from the flat tire on the towed van. Martin, who had reviewed all depositions and records, including Mr. Watson's conclusions, opined the jolt put the truck's front tires into opposition because of the worn ball joints, and that was more likely than not the cause of the crash. Martin's opinion was not based on speculation.
Although FLF's employee testified as an expert that he has never seen tires go into opposition unless some other part also failed, the jury may have viewed his testimony as biased. And FLF, which had access to the vehicle during several service complaints, offered no evidence of any problem with any other parts of the truck.
FLF argues plaintiffs' theory of the accident is missing five "logical links" in the chain of causation because it (1) assumes without any physical evidence that there was "stubbing" and a "jolt"; (2) assumes without proof that no other components of the vehicle could have caused the accident; (3) speculates that the ball joints were worn to the degree of preventing steering at the time of the accident and that Mr. Dunlap would have been able to steer out of the situation had the ball joints been repaired four months and 16,000 miles before the accident; (4) lacks evidence as to what happened to the ball joints or any other part of the truck in the intervening four months and 16,000 miles; and (5) speculates the steering problems reported by other drivers were the same as what Mr. Dunlap experienced. We address each point in turn; none renders the evidence insufficient to support the judgment.
1. Evidence That Tires Went Into Opposition
FLF argues that post-accident photos do not show the tires in opposition, and Martin at times used equivocal language as to what "can happen" or what he "would imagine" happened. However, Martin specifically testified it was his opinion that it was "more likely true than not" that the tires went into opposition. To the extent FLF wants us to credit its expert and reject plaintiffs' experts, we do not reweigh the evidence on substantial evidence review. (Maroney v. Iacobsohn (2015) 237 Cal.App.4th 473.) And the jury could reasonably conclude the photos are not dispositive because the truck rolled over in the crash, damaging the steering mechanism.
2. Other Components May Have Caused the Accident
FLF lists other components of the truck's steering and suspension systems, speculates they could have caused the accident, and notes plaintiffs' experts could not testify about the condition of those other components. FLF cites excerpts of testimony. When cross-examined about not having been able to physically examine a multitude of other parts due to destruction of the truck, Watson agreed there was a "great list of all potential things that could go wrong." FLF cites Watson's testimony that he "felt there were more things wrong than just the ball joints." However, he also said, "Knowing that there is worn ball joints in my mind strongly creates the inference that there will be other worn parts too. They just weren't observed or measured." FLF cites a snippet of Martin's testimony on cross-examination that the accident was caused "by an accumulation of problems with the front end components." However, FLF cites no testimony about other problems. Martin could have been referring to his testimony that the lift kit and oversized tires changed the steering geometry and placed strain on the front end components, including steering, which would cause them to wear out quicker. FLF maintains its expert, Dr. Kar, highlighted this "shortcoming of proof" by saying that, without a post-accident inspection of the truck, no conclusions could be drawn.
However, none of this testimony undermines the sufficiency of the conclusions of plaintiffs' experts that the ball joints caused the accident. A plaintiff need not prove causation with certainty or rule out every other potential cause. "[B]ecause California has rejected the notion that a plaintiff must definitively 'exclude all "possibilities" ' [citation] other than the defendant's conduct or product as the cause of plaintiff's harm, clearly an expert, in reaching a specific causation opinion, need not exclude all other possibilities before he or she can express an opinion that the defendant's conduct or product caused the plaintiff's harm." (Cooper, supra, 239 Cal.App.4th at p. 580; Sarti v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187, 1205 [plaintiff need not rule out every other potential cause].)
3. No Evidence of Degree of Wear
As to FLF's critique that the evidence did not show the degree of wear of the ball joints at the time FLF's employee noted it on the service invoice, the employee testified the ball joints had worn to the point that they needed replacement, which is why he recommended that they be replaced.
4. No Evidence What Happened to Ball Joints in Intervening Four Months
Plaintiffs did not need to adduce evidence of the condition of the ball joints or other truck components in the intervening four months and 16,000 miles. Plaintiffs adduced evidence that ball joints do not heal themselves. That the ball joints finally failed is a reasonable inference.
5. Different Types of Steering Problems
That drivers reported different steering problems -- shaking and locking -- does not help FLF. The drivers all reported steering problems. And plaintiffs did not try to attribute the accident to a bumpsteer but rather made the case that the bumpsteer complaints put FLF on notice about a steering problem it should have addressed, and the progressive wear in the front end caused by the bumpsteer and the worn ball joints is what allowed the wheels to go into opposition, causing the accident.
We accordingly reject FLF's missing "links" argument.
FLF argues case law supports a conclusion that plaintiffs here showed only a "possibility" of causation, which is not enough. Those cases are materially distinguishable. We disagree with FLF's assessment that this case is similar to Stephen v. Ford Motor Co. (2005) 134 Cal.App.4th 1363. There the plaintiff was injured in a single-vehicle roll-over accident when the tread separated from her right rear tire, which had almost 59,000 miles of wear. (Id. at pp. 1365-1366.) The vehicle was sold for salvage before the tire was inspected. The plaintiff's theory was that this tire, like all Firestone Radial ATX tires of this size made in a six-year time period, was defective. (Id. at p. 1367.) The appellate court found a number of problems with her expert's opinion to that effect -- lack of qualifications, reliance on an unsupported scientific theory, and insufficiency of post-accident photographs which did not show the interior of the tire or the inside sidewall or the tread belt piece that detached. (Id. at pp. 1368-1369.) The expert admitted that, based on the photos, he could not rule out other causes of failure, such as whether the tread separation was impact-related or the result of under-inflation, overloading, mounting damage, or wear. (Id. at p. 1369.) He also admitted that not all Firestone ATX tires of that vintage and size were defective, and if he had been shown similar photos of a different manufacturer's tire, he would not have been able to opine whether there was a manufacturing or design defect. (Ibid.)
FLF also cites two premises liability cases arising from crimes committed by third parties. In Saelzler, supra, 25 Cal.4th 763, a delivery driver was assaulted while delivering a package in an apartment complex and sued the owner for inadequate security. The evidence showed prior incidents had been caused not only by trespassers but also by tenants. The plaintiff could not prove whether her assailants were trespassers or tenants and therefore could not prove that additional security would have prevented the attack. (Id. at p. 776.) The Supreme Court rejected the expert's speculative opinion that the plaintiff's injuries could have been avoided had the property owner hired roving security guards to patrol the 300-unit, 28-building apartment complex, night and day. (Id. at pp. 776-777.) Crimes can occur despite maintenance of the highest level of security, and the plaintiff could not show that roving guards would have encountered her assailants or prevented the attack. (Id. at p. 777.) Proof of causation cannot be based on an expert's opinion based on inferences, speculation, and conjecture. (Ibid.)
Saelzler, supra, 25 Cal.4th at page 776, distinguished a case, Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, which is actually more similar to our case. In Rosh, the plaintiff was shot by a disgruntled former employee who had recently been fired. The plaintiff sued the security firm hired specifically to protect against such incidents. The defendant had repeatedly ignored the plaintiff's directions to bar the ex-employee from entering the premises. Rosh properly found the defendant's negligence was a substantial factor in facilitating the attack on the plaintiff. Saelzler said its defendants, in contrast, had no advance notice that a particular assailant was on the premises. (Saelzler, supra, 25 Cal.4th at p. 776.)
Here, as in Rosh and unlike Saelzler, there was evidence that a particular defect (worn ball joints) was present in the truck, and that FLF was aware the ball joints could cause steering lock and needed to be replaced but failed to replace them or verbally advise the owner to do so.
Defendant also cites Leslie G., supra, 43 Cal.App.4th 472, where a tenant was raped in the parking garage of the apartment building. She blamed the landlord's negligent maintenance of the garage's security gate. However, the tenant's expert based his opinion on speculation that the rapist was attracted to and entered the garage because of the broken gate. (Id. at pp. 481-482.) It was not known how the rapist, who was never caught, got into the garage, which had three doors in addition to the security gate. He may have followed another tenant in through a door or found or stolen a key or ducked under the gate when an authorized vehicle entered or exited. (Id. at pp. 483-488.) A possible cause becomes probable only when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. " 'This is the outer limit of inference upon which an issue may be submitted to the jury.' " (Id. at p. 487; italics omitted.)
This case is materially distinguishable from Saelzer and Leslie G. An automotive expert's ability to determine why a pickup truck's steering failed is different from the inherently speculative exercise of trying to decide what enhanced security measures might have prevented a crime committed by an unknown third party. And this is particularly true where, as here, the automotive expert starts with knowledge that the defendant already determined before the accident that certain parts of the truck's steering system were worn out and needed replacement.
FLF takes issue with plaintiffs' reliance on Garbell, supra, 193 Cal.App.4th 1563, which held substantial evidence supported a jury's finding that a residential fire was caused by a smoldering cigarette discarded by a worker installing flooring for the homeowner. (Id. at pp. 1569-1571.) The point of origin of the fire was a garbage can in the garage, where the workers discarded trash and their cigarette butts. (Id. at p. 1567.) One said they discarded their cigarette butts in a sealed Snapple bottle with some liquid remaining, but others told the fire investigation expert that they sometimes dumped the contents of the bottle into the trash can. (Ibid.)
The homeowner's causation expert ruled out all causes of the fire except two -- a smoldering cigarette or spontaneous combustion. The court directed the jury to reject the latter theory. (Garbell, supra, 193 Cal.App.4th at p. 1570.) The jury found the flooring contractor liable. (Id. at pp. 1568-1570.)
On appeal, the flooring contractor argued (1) there was insufficient evidence that a carelessly discarded cigarette caused the fire and, (2) even if it did, there was no evidence it was one of the workers' cigarettes, as opposed to some unknown third party. (Garbell, supra, 193 Cal.App.4th at pp. 1569-1570.) The appellate court found sufficient evidence on the first point in that workers sometimes dumped cigarette materials directly into the trash can, and there was an absence of other causes. (Id. at p. 1570.) As to the second point, the appellate court said that particular link in causation did not require expert testimony. (Ibid.) The jury disbelieved the defense theory, and the appellate court would not second-guess the inferences drawn by the jurors, whose verdict was supported by evidence. (Id. at pp. 1570-1571.)
FLF notes Garbell is distinguishable on various points, for example the fire expert excluded other possible causes while plaintiffs' experts did not. FLF views plaintiffs as invoking Garbell for the proposition that an expert's causation opinion is admissible if it is merely a possible inference -- a proposition contrary to Saelzler, supra, 25 Cal.4th at pages 775-776, which said a "mere possibility" is not enough, and there has to be some evidence supporting the causation theory as being more probable than not. But plaintiffs do not rely on mere possibility, and here there was evidence supporting plaintiffs' experts' opinions as being more probable than not.
We conclude substantial evidence supports the jury's finding of causation.
II
Claims of Evidentiary Error
FLF next argues the trial court made evidentiary errors by (a) allowing plaintiffs' causation experts to testify, (b) allowing plaintiffs' expert Mr. Watson to testify to a new opinion not expressed in deposition, and (c) allowing the jury to view plaintiffs' towing video and wobble video.
FLF claims such errors entitle it to a new trial. We disagree.
A. Allowing Plaintiffs' Experts to Testify Regarding Causation
FLF argues the trial court erred in allowing plaintiffs' experts to testify about causation because (1) their testimony was speculative, and (2) Martin was unqualified to testify and Watson's testimony was based on Martin's inadmissible testimony.
"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. [Citations.]" (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773 (Sargon).)
We see no grounds for reversal.
1. Testimony was not Speculative
We have already seen that the experts' testimony was not speculative. FLF fails to show any reason to exclude the evidence.
Trial judges have a substantial gatekeeping responsibility when it comes to expert testimony. (Sargon, supra, 55 Cal.4th at p. 769; Cooper, supra, 239 Cal.App.4th at p. 577.) "[U]nder Evidence Code sections 801, subdivision (b) [expert opinion must be based on matter of a type that reasonably may be relied upon], and 802 [witness may state reasons for opinion and matter upon which it is based unless precluded by law from using such reasons or matter], the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative. Other provisions of law, including decisional law, may also provide reasons for excluding expert opinion. [Fn. omitted.]" (Sargon, supra, 55 Cal.4th at pp. 771-772.) "[A] court may inquire into, not only the type of material on which an expert relies, but also whether that material actually supports the expert's reasoning. 'A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered.' [Citation.]" (Id. at p. 771.)
Sargon held in a breach of contract case that the trial court properly excluded as speculative the proffered expert opinion calculating future lost profits on anticipated market share gains, relying on data from larger companies that were not comparable. (Id. 55 Cal.4th at pp. 775-781.)
"But courts must also be cautious in excluding expert testimony. The trial court's gatekeeping role does not involve choosing between competing expert opinions. . . . [¶] . . . [T]he court must simply determine whether the matter relied on can provide a reasonable basis for the opinion or whether that opinion is based on a leap of logic or conjecture. . . . The goal of trial court gatekeeping is simply to exclude 'clearly invalid and unreliable' expert opinion. [Citation.]" (Sargon, supra, 55 Cal.4th at pp. 771-772.) In particular, courts are to ensure that opinions are not speculative, based on unconventional matters or grounded in unsupported reasoning. (Cooper, supra, 239 Cal.App.4th at pp. 577, 586.)
FLF cites a legal malpractice case, Wise v. DLA Piper LLP (US) (2013) 220 Cal.App.4th 1180, which held inadmissible as speculative an expert's opinion that a money judgment would have been collectible (had the judgment creditor's lawyer renewed the judgment) because requiring third-party investors in the judgment debtor's corporate entities to appear at third-party debtor examinations (to reach those corporate funds through "reverse piercing") would have induced the third parties to loan money to the judgment debtor to pay the judgment. (Id. at p. 1193.) Wise does not help FLF.
We reject FLF's argument that the trial court should have excluded the expert's evidence as speculative.
2. Martin's was Qualified
FLF argues Mr. Martin was unqualified. We disagree.
Evidence Code section 720, subdivision (a), says, "A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. . . ."
A trial court's determination of qualification of an expert will not be disturbed on appeal absent an abuse of discretion by the trial court. (Brown v. Colm (1974) 11 Cal.3d 639, 646-647 [in medical malpractice case, trial court abused discretion in excluding an expert based on his lack of personal experience with standard of care prevailing 23 years before trial].)
FLF argues Martin "was not qualified to render an opinion on the cause of the accident in the absence of a vehicle inspection" and "has no training in accident reconstruction." However, Martin did not testify as or claim to be an accident reconstruction expert. In this case, he was asked to give his opinion on the causation of any mechanical failure of the pickup truck -- a matter for which he was highly qualified after 25 years in the industry and having testified as an expert in court in three other cases. The trial court recognized Mr. Martin as an expert in the field of forensic automotive investigation and repair, including BAR compliance.
Martin was asked to explain the likely cause of Mr. Dunlap's inability to steer the truck immediately after the van tire blew out. His opinion that the truck's ball joints finally failed, causing the steering to lock, fell within the area of his expertise as an automotive repair expert and a mechanic highly skilled in diagnosis.
To the extent FLF views Mr. Martin's qualifications as insufficient to support his statement that the sudden deflation of the van's tire caused a jolt to the right rear of the truck, Martin testified that for this point he relied on plaintiffs' accident reconstruction expert Mr. Watson, who opined the tire failure caused a jolt to the right rear of the truck. Martin acknowledged that neither truck occupant described a physical jolt and neither was immediately aware the van's tire had blown. The passenger, Mr. Waltman, did describe a "push" after the truck started veering off the road. Watson did not visit the Arizona accident site but relied on information and diagrams prepared by defendant accident reconstruction expert Mr. Fenton for the physical layout. Like Watson, Martin relied on defense expert Fenton's drawings/diagrams but did not agree with Fenton's conclusions that the van went into a full lock position.
An expert may base his opinion on matter "made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion." (Evid. Code, § 801, subd. (b).)
FLF fails to show it was improper for Martin to rely on the accident reconstructionist's opinion about a jolt. Moreover, during redirect examination of Martin on a different matter, the trial court told the jurors that Martin had made certain assumptions in support of his opinion, and it was up to the jurors to determine on the facts of the case whether or not the assumptions were supported by the evidence.
FLF claims Watson relied on Martin's unqualified opinion, and therefore the court should have excluded the testimony of both. However, the cited evidence shows only that Watson said he "agree[d]" with Martin's view that the steering locked as a result of the front wheels fighting each other, not that Watson based his opinion about a jolt on Martin.
FLF claims Martin has never previously determined cause of mechanical failure without an inspection of the vehicle itself, yet FLF acknowledges Martin "did work with the [BAR] where I only examined documentation statements, invoices, and things like that to help them determine what was going on with it." Moreover, Martin said it is not always necessary to examine a vehicle itself.
FLF cites Neudeck v. Bransten (1965) 233 Cal.App.2d 17, which held a trial court did not abuse its discretion in (1) limiting testimony of a defense expert about the course of travel of vehicles after impact in response to a hypothetical question, and (2) excluding his opinion that the plaintiff was traveling 26 miles per hour at the time of the collision. (Id. at p. 19.) The expert was a professor of mechanical engineering who had written a book on "Impact" based on application of the laws of physics to colliding billiard balls and other objects and on writings and interviews relating to automobile collisions. (Ibid.) He had kept current with recent literature on the subject. But there was no showing that he had any actual experience in the investigation of traffic accidents or with the numerous intangible factors involved therein. (Ibid.) Others, including an investigating police officer, put the plaintiff's speed at 15-20 miles per hour, only six miles less than defendant's proffer. The appellate court assumed, without holding, that the trial court could have properly permitted the defense opinion about speed, but did not regard its exclusion as an abuse of discretion, and the defense was not materially prejudiced by its exclusion. (Ibid.)
That a different court in a different case was found not to have abused its discretion in excluding evidence does not mean that this trial court abused its discretion in allowing the evidence.
FLF fails to show abuse of discretion.
B. Claim that Watson Gave New Opinion
FLF contends the trial court erroneously allowed plaintiffs' expert Mr. Watson to testify to a new opinion, not expressed in deposition, that the truck's tires "stubb[ed]" (went in opposition to each other) due to worn ball joints. We reject plaintiffs' position that this contention is barred because the "new opinion" came out during FLF's cross-examination of the witness. Nevertheless, FLF's contention lacks merit.
On cross-examination of Watson at trial, the following occurred:
"Q. [By defense counsel]. As you sit here today you don't know what potential steering failure occurred at the time of the accident, do you?
"A. I believe we've got testimony from Mr. Martin that the steering wheel locked up as a result of the front wheels fighting each other.
"Q. But you don't have an opinion as to -- you yourself in your investigation have not come to any opinion as to the specific steering failure that occurred at the time of the accident, do you?
"A. Well, I agree with Mr. Martin."
Watson acknowledged he said in two prior depositions that he could not identify the specific mechanism of failure but thought the unspecified steering problem contributed to the accident. Those excerpts were read to the jury. At trial he said, "but as I have gotten into conversations with Mr. Martin and we went over it, and we started out by just trying to eliminate some things, but we came to that conclusion that the steering locked up as he presented it. [¶] . . . [¶] . . . And like I say I haven't stopped working on this case between the last deposition and now." Watson agreed they did not have information about the condition of other parts and did not know what went wrong.
However, when asked on cross-examination at trial specifically to agree that in the second deposition he still could not identify the mechanism for the steering failure, Watson said, "That's not a correct statement. If you want to go a few pages earlier in my deposition . . . " -- at which point defense counsel interrupted with a new question.
On redirect examination, plaintiffs' counsel read from the deposition that Watson answered "the ball joints" when asked what components were worn such that he felt they in some manner caused the accident. Watson testified at trial that when asked the deposition questions about specificity, he thought defense counsel "wanted me to give a level of specificity beyond the ball joints because I believe we had spoken earlier a number of times about how I felt there were more things wrong than just the ball joints." "Knowing that there is worn ball joints in my mind strongly creates the inference that there will be other worn parts too. They just weren't observed or measured."
The day after Watson's testimony, FLF raised a belated objection and asked that the "new opinion" be stricken. The trial overruled the objection, stating Watson did not make a substantial change from his deposition testimony, and any inconsistencies could be adequately exposed on cross-examination and by the testimony of opposing experts, and the jury could weigh all that in determining what credibility and weight they want to give to the opinions.
In denying FLF's motion for new trial on this ground, the trial court said it overruled the objection at trial because Watson testified in deposition as to his opinion that the ball joints were a cause of the accident, and testimony regarding "stubbing" did not substantially change that opinion. Watson's trial testimony was consistent that the ball joints were a cause of the accident, with stubbing being part of the chain of events supporting and consistent with that same opinion. Any inconsistency could be argued to the jury. Assuming error, the court was not persuaded that it was reasonably probable that FLF would have obtained a more favorable verdict absent the evidence.
On appeal, FLF fails to show grounds for reversal. FLF argues plaintiffs had to prove that stubbing occurred; Watson was previously unable to link the worn ball joints to the mechanism of the accident in any concrete way, but at trial suddenly could. FLF contends it may have been prejudiced, because the jury vote was only nine to three in favor of plaintiffs. However, Watson explained any inconsistency. And plaintiffs had other evidence of stubbing through the expert opinion of Mr. Martin that the "excessively worn ball joints allowed the tire to move in directions that it is not meant to do, which allowed the tires to get in opposition of each other" and stubbing prevents steering, especially on a lifted vehicle with the geometry changed. FLF says only the accident reconstructionist (Watson) could offer stubbing as a cause. However, Martin's testimony was within the scope of his expertise as a diagnostic technician, and Watson's reliance on Martin's conclusion was not such a departure from Watson's deposition testimony as to render the trial court's rulings an abuse of discretion.
FLF's cited cases are not on point. Bonds v. Roy (1999) 20 Cal.4th 140, 143, precluded an expert, who was designated to testify about damages, from opining on standard of care. FLF cites McCoy v. Gustafson (2009) 180 Cal.App.4th 56, 78, as barring experts from testifying to opinions not offered during deposition, but FLF omits the salient fact that there were no depositions in McCoy because the party never designated that person as an expert. The salient feature of Jones v. Moore (2000) 80 Cal.App.4th 557, 564-566 was that the expert expressly represented that the deposition said it all. In Kennemur v. State of California (1982) 133 Cal.App.3d 907, 918-920, the expert after deposition conducted his own analysis of police reports he had before the deposition, and the new analysis was not disclosed to the other side.
We conclude FLF fails to show evidentiary error regarding Watson's testimony.
C. Videos
FLF claims it is entitled to a new trial because the trial court improperly allowed the jury to view plaintiffs' towing video and wobble video. We disagree.
1. The Wobble Video
Over defense objection, the trial court allowed plaintiffs to show the jury the demonstrative video that Mr. Martin took from the internet to demonstrate the concept of bumpsteer or uncontrollable wobble consistent with customer complaints to FLF. In denying the motion for new trial, the court said the video was intended to and did illustrate what Martin meant by "uncontrollable wobble," which was relevant given various driver complaints of wobble and steering difficulties prior to the incident, and Martin's opinion that the problems experienced by the drivers were consistent with worn ball joints.
Demonstrative evidence is physical evidence that illustrates or demonstrates a party's testimony or theory of the case. (People v. Kynette (1940) 15 Cal.2d 731, 755-756, disapproved on other grounds in People v. Sharer (1964) 61 Cal.2d 869, 876.) Demonstrative evidence is admissible for the purpose of illustrating and clarifying a witness's testimony, as long as a proper foundation is shown. (People v. Roldan (2005) 35 Cal.4th 646, 708, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 422.) The foundation may be established by evidence showing it is a fair representation of the underlying witness testimony. (People v. Ham (1970) 7 Cal.App.3d 768, 780, disapproved on other grounds in People v. Compton (1971) 6 Cal.3d 55, 60, fn. 3.)
FLF argues there was insufficient foundation because Martin did not identify who made the video, or that the vehicles or road conditions were similar. FLF also argues no foundation was laid that the wobble in the video was substantially identical to what any driver of this vehicle experienced, and the video was not probative because nothing tied it to this accident.
FLF fails to show that any of these points were required for a foundation or that the trial court abused its discretion in admitting the video into evidence.
2. The Towing Video
The towing video challenged by FLF on appeal showed Watson driving his own Toyota truck while towing a Volkswagen Rabbit that already had a flat right front tire. The trial court initially excluded the video as not substantially identical to the circumstances of this accident. The court later allowed the video on rebuttal, noting only that the "[s]tate of the evidence is different now. . . ." Watson offered the video just to show the stability of the tow bar system; he had no trouble steering when towing a car about half his truck's weight, even with a flat tire. Watson acknowledged his video was not meant to be an experiment representing what happened in this accident.
In denying a new trial, the court said the video was merely used to demonstrate Watson's opinion that in general, towing systems are not necessarily unstable whenever vehicles with a flat tire are being towed.
FLF cites Ehrhardt v. Brunswick (1986) 186 Cal.App.3d 734, which concluded a trial court properly excluded an expert's video showing a potential alternate cause of the accident, because there was insufficient evidence supporting the potential alternate cause. (Id. at pp. 740-741.) No such foundation was required in this case, considering the limited purpose of the video.
FLF cites Culpepper v. Volkswagen of America, Inc. (1973) 33 Cal.App.3d 510, which discussed the need for foundational evidence of similarities with respect to videos depicting experimental evidence. (Id. at p. 522.) Here, however, the video was not presented as experimental evidence recreating how the accident might have occurred. Rather, it was presented only for a limited demonstrative purpose.
FLF fails to show the trial court abused its discretion in admitting the videos.
III
Claim of Instructional Error
We reject FLF's contention that the trial court erred in instructing the jury (over defense objection) with CACI No. 204, that "You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party."
FLF urges both de novo review and substantial evidence review, but FLF is claiming the evidence was insufficient to support the instruction, which we review under a substantial evidence standard. (Bihun v. AT&T Information Systems, Inc. (1993) 13 Cal.App.4th 976, 992, overruled on other grounds in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664.) In any event, FLF fails to show any legal error in the instruction warranting reversal under a de novo standard.
FLF on appeal argues three items are at issue: (1) The lack of documentation of any 101-point inspection by FLF before selling the truck to Mr. Sample, (2) the lack of any handwritten notes of the degree of wear on the ball joints from FLF technician David Uhren who inspected the car when the Chapmans brought it in, and (3) the lack of a second page of notes for FLF documentation of the Sample and Chapman visits, based on testimony by service advisor Donald Brown that there may have been such notes.
In FLF's view, plaintiffs failed to present substantial evidence that any of these documents ever existed, much less that they were intentionally destroyed, rendering the instruction inappropriate. (Hicks v. KNTV Television, Inc. (2008) 160 Cal.App.4th 994, 1010 [inference should not apply if document never existed].)
However, there was evidence that the documents existed because there was evidence that they should have existed.
As to the first item, there was evidence of FLF's habit and custom of performing a 101-point inspection before selling a used car. FLF shop foreman Wayne Smith testified they looked for the document but could not find it. This does not mean it never existed.
Second, there was evidence that BAR standards required FLF to measure and document the degree of wear of the ball joints.
Third, a second page of notes would have documented FLF's service advisor communicating to the customer the service technician's finding that the ball joints needed to be replaced -- and such communication to the customer was required by BAR standards. In the deposition of FLF service advisor Donald Brown, which was read to the jury, he said there was space available on FLF's record-keeping system to put notes saying the advisor explained the technician's findings to the customer, but "apparently" no notes were made in this case. But then he said such notes would be on a second section of the computer screen that he would have to enter two digits to access, and he "never thought to look" for such notes for the Dunlaps in preparing for this deposition. Brown had no recollection of this service visit and did not recall whether he talked to the Dunlaps when they picked up the vehicle.
Martin testified to BAR standards on record-keeping and opined FLF's record-keeping was substandard. Moreover, there was other documentary evidence that FLF's service technician found the ball joints were worn.
Additionally, after producing electronic records in 2009, FLF shredded original paper documents in 2011. Although FLF asserted it shredded the documents as part of its routine record retention policy, believing the documents were duplicative of the electronic file, there was more than sufficient evidence to instruct the jury with CACI No. 204.
We conclude FLF fails to show grounds to reverse the judgment or the trial court's postjudgment orders denying JNOV or new trial.
DISPOSITION
The judgment and postjudgment orders denying JNOV or new trial are affirmed. Plaintiffs shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
HULL, Acting P. J. We concur: MURRAY, J. RENNER, J.