Opinion
A149745
08-28-2017
BETTY HALLMEYER, Plaintiff and Appellant, v. VALENCIA-PENALES CARE SERVICES, INC., ET AL., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Napa County Super. Ct. No. 2667709)
Betty Hallmeyer appeals from a judgment and order denying her motion for a new trial, contending that the non-economic damages she was awarded by a jury in a personal injury action are inadequate. We will affirm.
I. FACTS AND PROCEDURAL HISTORY
Betty Hallmeyer brought a lawsuit against Valencia-Penales Care Services, Inc. (Valencia-Penales), Mildred Valencia, and Salve Penales, in connection with injuries she incurred from a fall. The matter proceeded to a jury trial.
A. Evidence at Trial
In January 2015, Hallmeyer was living alone in an apartment at Redwood Retirement, an adult living facility. She was 91 years old, suffered from macular degeneration, and at times used a cane or walker. One of the issues at trial was Hallmeyer's mental and physical condition before and after her fall.
1. Hallmeyer's Pre-Fall Condition
On May 20, 2015—about a week before the fall—Hallmeyer went to the emergency room at Queen of the Valley Medical Center for chest pain. The pain resolved by the time she was seen by the emergency room physician, Christina Sitenga-Kako, M.D., and Hallmeyer was cleared to go home.
Dr. Sitenga-Kako noted in her report that Hallmeyer was "generally very healthy," "[c]laims to get on quite well by herself," was "[a]ble to perform ADLs [activities of daily living]," seemed "very astute during [their] conversation," and had "mild cognitive impairment." At trial, Dr. Sitenga-Kako explained that mild cognitive impairment "usually refers to forgetfulness" and is different than dementia. She admitted, however, that her statements about Hallmeyer's ability to perform ADLs and mild cognitive impairment were merely reiterations of a previous chart note or what she had been told by Hallmeyer, and she had not actually tested Hallmeyer for dementia.
Hallmeyer had a follow-up visit with a family practitioner, Dr. Marie Hughes, on May 22, 2015. Hallmeyer's son, William Rahe (William), prepared a document entitled "FAMILY OBSERVATIONS" to advise Dr. Hughes of Hallmeyer's condition. William's note advised that his mother has macular degeneration, "refuses to use a walker to avoid falls," has "very bad" short-term memory, has "psychotic episodes," is "in need of constant attention," refuses to take her medications, refuses to eat unless food is put in front of her, daily consumes "@ 1 bottle of Chardonnay," had "fallen multiple times," previously suffered a broken hip and head injury, and "needs/wants assistance for showering, home chores, memory, [and] companionship."
We refer to Hallmeyer's sons by their first names for clarity, without disrespect.
Dr. Hughes administered a "Mini Mental State Examination," which indicated a possibility that Hallmeyer had moderate dementia. In her Physicians Report for Aid & Assistance, Dr. Hughes represented that Hallmeyer had "moderate to severe dementia," as well as macular degeneration and Alzheimer's disease. She also noted that Hallmeyer needed someone to dispense her medications, was unable to shower on her own, had difficulty getting food into her mouth, and was unable to leave her home on her own. In another report, Dr. Hughes observed that Hallmeyer did not remember being in the hospital two days earlier.
At trial, Dr. Hughes testified that she did not actually diagnose Hallmeyer with dementia or Alzheimer's, because she lacked the expertise and experience to make the diagnosis. In addition, she claimed that she had noted Hallmeyer had "moderate to severe dementia" in her report because she was trying to help Hallmeyer "without really knowing the exact diagnosis." But in her deposition testimony—read during cross-examination—Dr. Hughes described moderate dementia as, in fact, her "diagnosis." And she acknowledged at trial that Hallmeyer most likely had Alzheimer's disease.
Dr. Hughes also testified on direct examination that Redwood Retirement was an appropriate facility for Hallmeyer as of May 22, 2015, and Hallmeyer did not require 24-hour care or an assisted living or skilled nursing facility. But in her deposition testimony, read during cross-examination, Dr. Hughes stated that Hallmeyer should not have been living independently as of May 22, 2015, and should have had, "[i]deally, 24-hour care." In addition, she wrote to Blize Healthcare, a company William was going to hire to assist his mother, asserting that she examined Hallmeyer on May 22, 2015, and Hallmeyer had dementia and macular degeneration, suffered frequent falls, and was unable to care for herself. And she advised Hallmeyer's former landlord in a Resident's Reasonable Accommodation Request Form on May 22, 2015, that Hallmeyer "needs to be in a facility and is incapable of living alone." (Italics added.)
2. Valencia-Penales
Hallmeyer was not placed into 24-hour care. Instead, on May 28, 2015, William contracted with Valencia-Penales to provide Hallmeyer with two hours of caregiving services a day—assisting her to the dining room for meals, performing light housekeeping, and helping her with bathing. The contract did not provide for Valencia-Penales to take Hallmeyer off of Redwood Retirement's premises. To the contrary, William instructed Salve Penales not to take his mother offsite and, if she needed to go somewhere, to call him 24-48 hours in advance so he could arrange to take her himself or have another agency take her.
3. Hallmeyer's Fall and Injuries
On May 29, 2015, Penales told caregiver Maria Gonzalves to drive Penales and Hallmeyer to a store. Although it was Valencia-Penales' policy to notify a family member when a resident was taken offsite, neither of Hallmeyer's sons was notified.
Gonzalves drove Penales and Hallmeyer (without her cane) to the store. After being in the store for 15 minutes, Gonzalves went to get the car and bring it to the curb so it would be easier for Hallmeyer to get in. Without anyone assisting her, however, Hallmeyer fell when she stepped off the curb. Someone called 911, and the Napa Fire Department responded.
Captain Josh Pero of the Napa Fire Department testified that Hallmeyer reported she struck her hip on the cement and was experiencing pain at a "10" on a 10-point scale, with a "10" being the worst pain a person ever felt.
X-rays taken at Queen of the Valley Medical Center showed Hallmeyer had sustained a right hip fracture and required surgery. The amount paid for Hallmeyer's medical care and treatment at Queen of the Valley Medical Center was $14,118.29, which the parties stipulated was reasonable and necessary.
Dr. Rachel Lee assessed Hallmeyer on May 29, 2015. Dr. Lee noted in her report that Hallmeyer was "relatively healthy except for a [prior] left hip fracture requiring repair." She advised that Hallmeyer had "moderate cognitive impairment" but still lived alone and was "relatively independent and active." Based on information provided to Dr. Lee, Hallmeyer was able to perform ADLs, could live independently, and did not require 24-hour care. Dr. Lee admitted, however, that she did not have personal knowledge of these facts or Hallmeyer's condition before her fall. Dr. Lee also acknowledged that she did not attempt to assess Hallmeyer's mental condition or her ability to live independently.
Hallmeyer was discharged from Queen of the Valley Medical Center into the Golden Living Center for rehabilitative care, where she stayed from June 2, 2015, through July 13, 2015. The amount paid for Hallmeyer's admission at Golden Living Center was $30,388.36, which the parties stipulated to be reasonable and necessary.
Because she required 24-hour care, Hallmeyer was unable to return to Redwood Retirement. Instead, she was transferred to Ramirez Care Home, a residential care facility for the elderly. According to an administrator at Ramirez Care Home, Hallmeyer requires assistance with "[b]asically pretty much all her ADLs." She needs help with dressing, toileting, showering, and transferring out of her wheelchair. She is able to walk only about 15 feet with her walker, and is in her wheelchair 90 percent of the day. Although she lived in her own apartment with her cat at Redwood Retirement before the fall, at Ramirez Care Home she lives in a small room, shares the house with other people, and cannot have her cat.
According to her son Thomas, before the fall Hallmeyer was "[i]ndependent, loving life, having fun, being able to go out shopping, go out to restaurants" and "enjoying life," and she liked "[h]aving her own apartment that she loves to decorate, a cat that she loved and wants to take care of." Hallmeyer testified that she does not like Ramirez Care Home, finds it "dismal," and does not do anything with her days except "watch a lot of television." William testified that he saw Hallmeyer "being a witty, vibrant, soul that would love to window shop and go out for lunches and discuss world politics" and "overnight she's in her chair, and that is it." But he also admitted that eight days before his mother's fall, he had written the note to Dr. Hughes detailing his mother's physical and mental problems.
Although not mentioned in Hallmeyer's opening brief, Dr. Elliott Stein, a specialist in geriatric psychiatry, was the only expert witness to testify at trial. Based on Hallmeyer's medical records and an examination and testing he performed, Dr. Stein opined that Hallmeyer suffered from moderate dementia before her fall, and suffers from slightly greater level of dementia today due only to the natural progression of the disease; Hallmeyer should not have been living alone on May 29, 2015; and Hallmeyer should have had 24-hour assistance before her fall. Hallmeyer notes in her appellate reply brief that Dr. Stein was relying (in part) on Dr. Hughes' records.
B. Verdict and Judgment
The jury found no negligence on the part of the individual defendants, but rendered a verdict for Hallmeyer on her negligence claim against Valencia-Penales. The jury apportioned 45 percent of the responsibility for Hallmeyer's harm to Valencia-Penales and 55 percent to William. It awarded Hallmeyer her requested past economic damages totaling $44,506.65, future economic damages in the amount of $126,000 for care-giving services, and $5,000 for non-economic damages.
The court entered judgment in accord with the verdict.
C. New Trial Motion
Hallmeyer filed a motion for a new trial on the ground that, inter alia, the jury's $5,000 award of non-economic damages was inadequate.
After a hearing, the court denied the motion. Among other things, the court observed there was "strong evidence" of contributory negligence on the part of William and commented: "The most damaging evidence presented is from William Rahe and Dr. Hughes, which indicates that at the time of her fall plaintiff was blind and suffered from dementia. Dr. Hughes instructed that plaintiff needed to be in a facility as she was no longer capable of living alone. This negates plaintiff's attorneys' claim that plaintiff was doing well physically and mentally before her fall and goes directly to the jury's finding regarding non-economic damages." (Italics added.)
The court concluded: "Clearly, faced by the conflict in the testimony and the evidence presented, and with the evidence and finding that there was negligence on the part of William Rahe, the jury could reasonably have believed, as evidently it did believe, that awarding plaintiff $5,000 in non-economic damages was appropriate. The jury was not required to believe plaintiff's evidence to the exclusion of contrary evidence. Plaintiff has cited no authority that a new trial is warranted whenever a plaintiff is awarded $5,000 in non-economic damages when evidence is vigorously disputed, nor does the record in this case compel such a conclusion. [Citation.] Consequently, after weighing the evidence and the case law, the Court is not convinced from the entire record, including reasonable inferences from the conflicting evidence presented at trial, that the jury should have reached a different decision regarding its non-economic damages award. (Code Civ. Proc., § 657.) For these reasons, the Court cannot find that the verdict is inadequate as a matter of law."
This appeal followed.
II. DISCUSSION
A new trial will not be granted on the ground of inadequate damages "unless after weighing the evidence the 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." (Code Civ. Proc., § 657.) The court determines whether the damages are inadequate largely in its discretion, and we will not reverse its decision unless the record suggests the jury's award was a product of the jury's passion, prejudice or corruption, or the uncontradicted evidence shows the award is insufficient as a matter of law. (See Miller v. San Diego Gas & Electric Co. (1963) 212 Cal.App.2d 555, 558-559 (Miller); Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1416 (Rayii).)
Hallmeyer maintains that the jury's award of $5,000 for non-economic damages was inadequate because (1) she suffered significant injury when she fell and (2) she lost her independence and quality of life.
A. Significant Injury
Hallmeyer contends $5,000 was not enough for her non-economic damages based on Dodson v. J. Pacific, Inc. (2007) 154 Cal.App.4th 931 (Dodson). In Dodson, a plaintiff underwent an operation in which surgeons removed a herniated disc and inserted a metallic plate, and the jury found that the defendant's negligence was a cause of the plaintiff's injury. Under those circumstances, the court held, "the failure to award any damages for pain and suffering results in a damage award that is inadequate as a matter of law," and a new trial motion should have been granted. (Id. at pp. 933, 938. Italics added.) The court explained: "A plaintiff who is subjected to a serious surgical procedure must necessarily have endured at least some pain and suffering in connection with the surgery. While the extent of the plaintiff's pain and suffering is for the jury to decide, common experience tells us it cannot be zero." (Id. at p. 938. Italics added.)
Hallmeyer argues that, as in Dodson, she sustained a significant physical injury that required surgery, the jury found that Valencia-Penales caused the injury necessitating her surgery and medical expenses, and there was evidence she experienced great pain. Her argument is unpersuasive. Reversal was required in Dodson because the jury awarded the plaintiff nothing for non-economic damages. Here, the jury awarded Hallmeyer $5,000. While Hallmeyer may believe that $5,000 is not enough, she fails to establish that it is inadequate under Dodson as a matter of law. (See Miller, supra, 212 Cal.App.2d at p. 558 [ "It cannot be said . . . that because a verdict is rendered for the amount of medical expenses or for a less amount the verdict is inadequate as a matter of law. Every case depends upon the facts involved."].)
B. Quality of Life
Hallmeyer next argues that the $5,000 award was insufficient because she sustained permanent physical impairment, a loss of enjoyment of life, inconvenience, grief, and emotional distress. She cites to evidence that the hip fracture caused permanent physical impairment, since thereafter she was able to walk only about 15 feet and spends 90 percent of her day in a wheelchair. She claims she leads a lower quality of life, noting that she is no longer ambulatory, requires 24-hour care, and is unable to live in her Redwood Retirement apartment with her cat. She maintains that the jury's award of $126,000 for future caregiving equated to 18 months of 24-hour care (from the time of the verdict) for a total of two and one-half years of 24-hour care (from the time of her fall), so the jury must have concluded that she would have remained living independently at Redwood Retirement for two and one-half years had it not been for the fall.
However, as respondents point out—and the trial court noted—there was a substantial conflict in the evidence as to Hallmeyer's mental condition and quality of life before the fall, and the extent to which her condition thereafter was really due to the fall. While Hallmeyer urges that this evidence is irrelevant because the jury's award acknowledged that the fall accelerated Hallmeyer's need for 24-hour care, she misses the point. The jury could have found that Hallmeyer should recover the extra cost of 24-hour care necessitated by her physical incapacity due to the fall, but still found that she failed to prove the fall resulted in a substantial decrease in the quality of her life, given the extent and cause of her dementia before and after the fall, as well as her Alzheimer's disease. It was Hallmeyer who bore the burden of proof with respect to damages, and the jurors (and trial court) were in the best position to observe the witnesses and evaluate their testimony.
Hallmeyer's reliance on Buniger v. Buniger (1967) 249 Cal.App.2d 50 (Buniger) is misplaced. There, Buniger sued her son and daughter-in-law for the negligent construction and maintenance of some stairs, which had caused her to fall and break her thigh bone. (Id. at pp. 50-51.) Buniger had surgery and remained hospitalized for 31 days. (Id. at p. 53.) The jury returned a verdict for Buniger in the amount of $2,500; since the economic damages were $1,976.21, only $523.79 was awarded for her pain and suffering and permanent damages. (Ibid.) On appeal, the court found that "the general damages are so small as compared with the actual injury and the permanent results that we must grant a new trial in the case." (Id. at p. 54.) The court explained, "While it is generally true that the finders of fact are the final judges of the extent of damages suffered in a tort case, it is also true that this rule is not universal and that in cases such as this the appellate court may use common sense and the long line of authorities which hold that inadequate damages may be such as to shock the conscience and to require a reappraisal." (Ibid. Italics added.)
Here, the facts relevant to Hallmeyer's circumstances before and after her fall were different than those in Buniger. Moreover, Hallmeyer was awarded nearly 10 times the amount of non-economic damages that Buniger was awarded, even though Buniger had endured a 31-day post-operative hospital stay. While we are not unsympathetic to Hallmeyer's condition, she has not established that an award of $5,000 for non-economic damages is so meager as to shock the conscience. (See Rayii, supra, 218 Cal.App.4th at p. 1416 [trial court acted within its discretion in denying new trial motion based on inadequacy of non-economic damages, where evidence of plaintiff's preexisting conditions and other medical conditions tended to show that most of her past and future pain and suffering was unrelated to the collision].) She fails to establish error.
III. DISPOSITION
The judgment and order denying the motion for a new trial are affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, ACTING P.J. /s/_________
BRUINIERS, J.