Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05CC05935, Jamoa A. Moberly, Judge.
Law Offices of Martin D. Gross and April R. Blackman for Plaintiff and Appellant.
Daniels, Fine, Israel, Schonbuch & Lebovits, Mark R. Israel and Maureen M. Michail for Defendant and Respondent.
OPINION
FYBEL, J.
INTRODUCTION
Plaintiff Maria Del Rosario Ramos was hit by a car driven by defendant Linda Anne Shearer in a grocery store parking lot. Although Ramos had seen Shearer driving her car slowly in Ramos’s direction, Ramos assumed Shearer would stop for her, and stepped into the path of the approaching car. Shearer did not see Ramos before they collided.
Ramos sued Shearer for negligence. Following a trial, the jury found that Shearer had been negligent, but also found that Ramos had been comparatively negligent and 25 percent responsible for the harm she suffered as a result of the accident. The jury awarded Ramos $18,752.17 in compensatory damages.
Ramos contends the judgment must be reversed because (1) substantial evidence does not support the jury’s finding she was comparatively negligent or its award of only $18,752.17 in compensatory damages; (2) the trial court abused its discretion by excluding from evidence one of Ramos’s physician’s reports; (3) Shearer’s counsel engaged in prejudicial misconduct by arguing that Ramos’s arthroscopic knee surgery was unnecessary and suggesting it was performed because Ramos’s counsel, not her physicians, was directing her treatment; and (4) certain jurors engaged in prejudicial misconduct by opining during deliberations that Ramos’s arthroscopic knee surgery was unnecessary and done “to get money,” seeking information from outside sources, considering jurors’ special training or unique personal experiences, improperly considering evidence not before them, and failing to discuss any of the jury instructions.
We affirm. Substantial evidence shows Ramos did not act reasonably when she stepped in front of Shearer’s approaching car after Ramos saw the car coming but failed to seek any assurance Shearer had seen her and would stop. The jury’s allocation of 25 percent responsibility to Ramos is therefore supported by sufficient evidence.
The special verdict form showed the jury found Ramos suffered $18,002.90 in past economic loss damages and $7,000 in past noneconomic loss damages. The jury did not award Ramos future economic or noneconomic damages. The jury’s failure to award Ramos future damages is supported by Shearer’s expert’s testimony that Ramos’s injuries should have resolved within four months of the accident. The jury’s failure to award Ramos further compensatory damages, and, in particular, additional economic damages related to Ramos’s arthroscopic knee surgery, is supported by Shearer’s expert’s testimony that Ramos received certain unnecessary and unreasonable medical services, which, the expert opined, included the arthroscopy after the accident.
Even if the trial court had abused its discretion by excluding Ramos’s surgeon’s postoperative report stating that Ramos had a meniscus tear, any such error was not prejudicial. Ramos’s surgeon testified she had a meniscus tear and Shearer’s expert testified the postoperative report stated Ramos had a meniscus tear. Furthermore, the record does not show Shearer’s counsel or any juror engaged in prejudicial misconduct.
FACTS
Around 9:00 a.m. on December 23, 2004, Ramos purchased a coffee and sweet bread at a grocery store in Newport Coast on her way to work as a nanny and housekeeper. After she exited the store, she looked to her left and saw a vehicle driven by Shearer coming toward her at five to eight miles an hour from about 20 to 25 feet away. Ramos did not make eye contact with Shearer or receive any other assurance that Shearer had seen her and would stop the car before Ramos looked straight ahead and crossed the roadway in front of Shearer’s car. Ramos testified she was sure Shearer would stop.
Unfortunately, Shearer did not see Ramos, and Shearer’s car struck her. Shearer was also on her way to work as a nanny after having made a stop at the grocery store. She testified the sun made it more difficult to see but she could see and would not have continued to drive the car if she had been unable to see. Shearer testified she was looking straight ahead and “all of a sudden there was someone on my hood.” She stopped the car, ran out to see what happened, and saw Ramos in front of her. Because she was looking straight ahead and did not see Ramos, Shearer testified she believed Ramos walked into the passenger side of her car.
Ramos testified the car’s front bumper struck the left side of her left knee. (Officer Richard Henry who responded to the accident testified that he did not see any damage to the front bumper of the car but observed “fresh damage . . . on the passenger-side half of the hood at the front of the vehicle.”) Ramos fell on top of the vehicle and then fell backward to the ground on her backside. She felt a “terrible pain” in her left knee. The paramedics were called and transported Ramos to Hoag Hospital. The CT scan of her head and X-rays of her left knee were normal; her knee was not fractured. She was referred to orthopedic surgeon Dr. Tapadiya for follow-up, but said the doctor “couldn’t do anything for [her].”
An MRI was taken of her left knee in January 2005. The report of the reading of the MRI showed Ramos sustained a bone bruise and a grade-one strain of the medial collateral ligament of the knee. Shearer’s expert orthopedic surgeon, Dr. Steven Graboff, testified neither injury required surgical intervention. Bone bruises “heal up without any treatment at all” within four months. The proper treatment for medial collateral ligament strain at grade one “is aggressive physical therapy and rehabilitation starting right away, and typically going for about three months or less” by which time the injury should have resolved.
Ramos then went to a chiropractic clinic in Downey where she received body adjustments and treatment for her neck and back for four months, ending in April 2005. Ramos saw a general practitioner who gave her unspecified medication and no recommendation.
Ramos returned to work as a nanny and housekeeper in June 2005 and also took on a second job as a cashier at a 99 Cent Store. In August 2005, Dr. Matos, an orthopedic surgeon with Southland Spine and Rehabilitation Medical Center (Southland Spine), thought a second read of the January 2005 MRI was necessary in light of Ramos’s ongoing complaints of pain and problems with her knee. The second reading of the MRI was conducted by Hallmark Stand-Up MRI which reported that Ramos’s medial meniscus was torn. In March 2006, Ramos was cleared for surgery by Southland Spine.
Three days before Ramos’s April 3, 2006 arthroscopic knee surgery, Dr. Graboff examined Ramos. He conducted an extensive physical examination and concluded there were no abnormalities with Ramos’s knee. He reviewed the MRI and the reports of the two readings of it, as well as Ramos’s medical history and records. Dr. Graboff concluded Ramos suffered a minor impact to the outside of her left knee. (He noted, “[i]f it was a major impact, it would have blown her knee apart.”) Echoing the findings of the first reading of the MRI, Dr. Graboff testified the impact of the accident caused Ramos to suffer a sprain of the medial collateral ligament consistent with a grade-one sprain, and a bone bruise. Dr. Graboff testified that arthroscopic surgery was not reasonable and necessary. There was no written report prepared by Dr. Graboff offered in evidence.
On April 3, 2006, Dr. Brent Pratley of Southland Spine performed arthroscopic surgery on Ramos’s knee. Ramos did not have health insurance and was unable to pay any of her medical bills. She received loans from her employer. Dr. Pratley paid $3,500 of Sterling Surgical Center’s $8,500 facility fee. Ramos entered into a lien agreement with Southland Spine for the services provided. The county paid $305 for Ramos’s radiology bill, and Ramos received two $300 disability benefit checks for the two months she was on disability.
Ramos testified she had received the following: (1) a $600-$700 bill from the fire department; (2) a $2,000 hospital bill; (3) a $276 emergency room bill; (4) an $800 bill from Dr. Tapadiya; (5) a $4,625 bill for chiropractic services; (6) a $2,222 bill for the MRI; (7) a $750 bill from a Dr. Ganji; and (8) a $403.25 bill for medication.
Ramos further testified that she lost $11,760 in wages because she was unable to work for six months after the accident and that she lost another $3,600 in wages for the time she recuperated after the arthroscopic surgery. The record shows a bill for the arthroscopic surgery and facility fee in the amount of $17,000.
Ramos testified that although the arthroscopic surgery “helped [her] a lot,” she is not 100 percent and will never be 100 percent again.
BACKGROUND
Ramos sued Shearer for negligence and sought compensatory damages for wage loss, hospital and medical expenses, general damages, loss of earning capacity, and interest. Ramos did not seek punitive damages.
Following a jury trial, the jury found (as recorded on the special verdict form): (1) Shearer was negligent; (2) Shearer’s negligence was a substantial factor in causing harm to Ramos; (3) the total amount of damages is $25,002.90 ($18,002.90 in past economic loss, including lost earnings and medical expenses, plus $7,000 in past noneconomic loss, including physical pain and mental suffering); (4) Ramos was negligent; (5) Ramos’s negligence was a substantial factor in causing her harm; and (6) Shearer was 75 percent responsible for Ramos’s harm and Ramos was 25 percent responsible for her harm.
Ramos filed a motion for a new trial based on several grounds including attorney and juror misconduct; she filed the declarations of, inter alia, jurors Jennifer Reyna and Libbie Rector Knobbe in support of the motion. In the opposition to the motion, Shearer argued the declarations “are comprised almost entirely of inadmissible hearsay and speculation. Further, they are improperly riddled with inadmissible statements regarding their own and other jurors’ mental processes and reasoning.”
Judgment was entered on November 13, 2006, awarding Ramos $18,752.17 (75 percent of Ramos’s total damages of $25,002.90). The trial court denied Ramos’s motion for a new trial, sustaining Shearer’s objections to the declaration of Ramos’s attorney and the declarations of Reyna and Knobbe “on the grounds stated.”
Ramos appealed as to the judgment.
“There is no need for an appeal from an order denying the motion [for a new trial], and such an order is nonappealable. The moving party is also the losing party in the trial, and his remedy is an appeal from the judgment, in which appeal the ruling denying a new trial may be reviewed.” (8 Witkin, Cal. Procedure (4th ed. 1997) Attack on Judgment in Trial Court, § 145, p. 647.)
DISCUSSION
The arguments Ramos raises in this appeal were raised in her motion for a new trial which was denied by the trial court. “[A]lthough the trial court ‘is accorded a wide discretion in ruling on a motion for new trial and . . . the exercise of this discretion is given great deference on appeal . . . we are also mindful of the rule that on an appeal from the judgment it is our duty to review all rulings and proceedings involving the merits or affecting the judgment as substantially affecting the rights of a party . . . including an order denying a new trial. In our review of such order denying a new trial, as distinguished from an order granting a new trial, we must fulfill our obligation of reviewing the entire record, including the evidence, so as to make an independent determination as to whether the error was prejudicial.’” (Enyart v. City of Los Angeles (1999) 76 Cal.App.4th 499, 508.)
I.
SUBSTANTIAL EVIDENCE SUPPORTS THE SPECIAL VERDICT.
Ramos contends substantial evidence did not support the jury’s findings that (1) she was comparatively negligent and 25 percent responsible for her harm; and (2) she suffered total damages in the total amount of $25,002.90. For the reasons discussed post, we disagree.
A. Standard of Review
“‘When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. If such substantial evidence be found, it is of no consequence that the trial court believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.’” (Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138, 143.)
Section 657 of the Code of Civil Procedure provides in relevant part: “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 court is convinced from the entire record, including reasonable inferences there from, that the court or jury clearly should have reached a different verdict or decision.” Section 657 by its terms requires the trial court to weigh the evidence and consider the entire record. (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 413.) The trial court is “vested with the authority . . . to disbelieve witnesses, reweigh the evidence, and draw reasonable inferences there from contrary to those of the trier of fact.” (Mercer v. Perez (1968) 68 Cal.2d 104, 112.)
B. Substantial Evidence Supports the Jury’s Findings Ramos Was Comparatively Negligent and 25 Percent Responsible for Her Harm.
The jury was instructed with Judicial Council of California, Civil Jury Instructions (2008) CACI No. 401, which states in part, “[n]egligence is the failure to use reasonable care to prevent harm to oneself or to others. [¶] A person can be negligent by acting or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation.”
Ramos’s testimony alone constitutes substantial evidence supporting the jury’s findings she was negligent and her negligence was a substantial factor in causing her harm. She testified that after she left the grocery store, she looked to her left and saw Shearer’s vehicle slowly approaching her from about 20 to 25 feet away. Ramos did not make eye contact with Shearer, or otherwise obtain any assurance Shearer saw her and would stop. Instead, Ramos proceeded to look and walk straight ahead, assuming the approaching car would stop. The evidence also showed Ramos was likely in a hurry. Her employer expected her at 9:00 a.m. and it was about that time when Ramos exited the grocery store.
The jury’s finding that Ramos was comparatively negligent in crossing the path of Shearer’s moving car is therefore supported by substantial evidence; the jury was justified in assigning Ramos 25 percent of the responsibility for the harm.
C. Substantial Evidence Supports the Jury’s Finding on Total Damages.
The jury found Ramos suffered damages in the amount of $18,002.90 for her past economic loss which included her lost earnings and medical expenses, plus $7,000 for past noneconomic loss which included compensation for her physical pain and mental suffering. The jury did not award Ramos any damages for future economic or noneconomic loss.
Ramos contends the jury’s findings “completely disregard[] the law and facts and [are] irrational.” Ramos, however, fails to explain how the jury’s verdict fails under the substantial evidence standard of review. Instead, in the opening brief, Ramos summarizes trial testimony favorable to her view of the case and suggests Dr. Pratley was more credible than Dr. Graboff. (Ramos did not file a reply brief.)
The special verdict form did not ask the jury to break down its damages findings beyond the stated categories of past and future economic loss and past and future noneconomic loss. The jury’s denial of future economic and noneconomic damages is supported by substantial evidence in that Dr. Graboff testified the accident caused Ramos to suffer a minor impact to the knee resulting in a bone bruise and a grade-one sprain of the medial collateral ligament—injuries which resolve within three to four months of the accident. Dr. Graboff addressed Dr. Pratley’s finding Ramos had a complex tear of the medial meniscus by stating, “[c]omplex tears are degenerative tears in nature” and not traumatically induced; Dr. Graboff testified that tear was not caused by the accident.
In the opening brief, Ramos asserts that Dr. Graboff “testified that while it is his opinion that [Dr.] Pratley’s treatment of Ramos was unreasonable he admits that he could not say that it was unreasonable for Dr. Matos and Dr. Pratley to conclude that surgery was necessary.” This is an inaccurate summary of Dr. Graboff’s testimony. Dr. Graboff was asked: “So . . . Dr. Matos and Dr. Pratley, using their best medical judgment, could not find it reasonable—could not find a reasonable way to treat her; is that it?” Dr. Graboff responded, “I can’t speak for them.” Dr. Graboff did not equivocate as to his opinion that Ramos’s surgery was unreasonable and unnecessary; it was that expert testimony which supports the denial of damages claimed in relation to that surgery. It was within the province of the jury to accept Dr. Graboff’s testimony that the arthroscopic surgery was unnecessary and unreasonable, and reject the second reading report of the January 2005 MRI by Hallmark Stand-Up MRI.
We find no error.
II.
EXCLUSION OF DR. PRATLEY’S POSTOPERATIVE REPORT WAS NOT PREJUDICIAL; EXCLUSION OF REYNA’S DECLARATION WAS NOT ERROR.
Ramos contends the trial court prejudicially erred by failing to admit Dr. Pratley’s postoperative report into evidence. Ramos argues the court refused to admit the report based on the court’s erroneous belief the report was never identified on the record.
“‘[A]n appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence.’” (City of Ripon v. Sweetin (2002) 100 Cal.App.4th 887, 900.) We do not need to determine whether the trial court abused its discretion by excluding Dr. Pratley’s postoperative report, however, because the record does not show any such error would have been prejudicial. Ramos contends she was prejudiced by the exclusion of that report because it stated Ramos had suffered a meniscus tear. But the jury had already been provided this information through Dr. Pratley’s trial testimony that the second reading of the MRI showed “a tear of the medial meniscus.” In addition, Dr. Graboff testified that he reviewed Dr. Pratley’s postoperative report which stated Dr. Pratley “found a complex tear of the medial-meniscus cartilage.”
Ramos contends that according to juror Reyna (whose declaration was filed in support of Ramos’s motion for a new trial), the jury wanted to determine whether Ramos had suffered a meniscus tear and wanted to see the postoperative report. Reyna stated the report “was not available, so it was determined that [Ramos] did not have that injury.” Shearer objected to Reyna’s declaration on grounds, inter alia, that it violated Evidence Code 1150, subdivision (a) which provides: “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.” (Italics added.) The trial court properly sustained Shearer’s objection to Reyna’s statement that the jury concluded there was no meniscus tear because the jurors did not have the postoperative report before it, as violative of section 1150, subdivision (a).
In any event, neither the record nor Ramos’s argument explains why Dr. Pratley’s postoperative report would have persuaded the jury a tear existed, but Dr. Pratley’s testimony a tear existed, coupled with Dr. Graboff’s testimony confirming the report stated a tear existed, would not.
Ramos has failed to show, therefore, that the exclusion of Dr. Pratley’s postoperative report constituted prejudicial error.
III.
THE RECORD DOES NOT SHOW SHEARER’S ATTORNEY ENGAGED IN PREJUDICIAL MISCONDUCT.
Ramos contends Shearer’s attorney engaged in prejudicial misconduct by suggesting that Ramos’s attorney had directed her postaccident medical care instead of her physicians. Ramos raised this issue in her motion for a new trial, which was denied by the trial court.
“Counsel is granted wide latitude to discuss the merits of the case, both as to the law and facts, and is entitled to argue his or her case vigorously and to argue all reasonable inferences from the evidence.” (Nishihima v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 305.) The “‘ultimate determination’” of whether counsel’s comments warrant reversal “‘rests upon this court’s “view of the overall record, taking into account such factors, inter alia, as the nature and seriousness of the remarks and misconduct, the general atmosphere, including the judge’s control, of the trial, the likelihood of prejudicing the jury, and the efficacy of objection or admonition under all the circumstances.”’ [Citation.] And, because of the trial court’s unique ability to determine whether a verdict resulted in whole or in part from the alleged misconduct, its decision to deny a motion for new trial should not be disturbed unless plainly wrong.” (Ibid.)
Ramos contends Shearer’s attorney engaged in misconduct by: (1) stating in the opening statement, “‘and the question that I believe the evidence will answer for you is who is directing Ms. Ramos’ medical care’”; (2) arguing in closing argument that there was testimony the doctor needed to get authorization from the law firm to go ahead with the surgery; (3) further arguing Ramos’s attorney told Sterling Surgical Center’s billing clerk to make changes in the bill; and (4) asking in closing argument, “‘[w]ho is directing the medical care for the Plaintiff? Who is manipulating what is a proper and fair result in this case? I submit to you, ladies and gentlemen, that there’s something going on here.’”
Ramos did not object to Shearer’s attorney’s statements and has therefore waived the right to challenge them on appeal. In Whitfield v. Roth (1974) 10 Cal.3d 874, 891-892, the California Supreme Court stated, “‘[g]enerally a claim of [attorney] misconduct is entitled to no consideration on appeal unless the record shows a timely and proper objection and a request that the jury be admonished. . . . In the absence of a timely objection the offended party is deemed to have waived the claim of error through his participation in the atmosphere which produced the claim of prejudice.’” Ramos does not address how a request to admonish the jury would have been futile in this case.
Even if Ramos had not waived this argument, and even if Shearer’s counsel’s comments were improper, those statements, whether considered individually or cumulatively, do not rise to the level of prejudicial misconduct. The jury had to choose between Ramos’s treating physician and Shearer’s expert witness in determining whether Ramos’s arthroscopic surgery was reasonable and necessary. That testimony was the core of this case, not comments by or about counsel.
The record shows the jury was persuaded by Dr. Graboff’s testimony that Ramos’s surgery was not necessary and reasonable. Dr. Graboff testified in detail how his expert opinion was based on his training as a board-certified orthopedic surgeon, his review of Ramos’s medical records, and his physical examination of Ramos. He stated he personally reviewed Ramos’s MRI in concluding her surgery was unnecessary and unreasonable. Dr. Graboff testified, “the orthopedic surgeon is the only one qualified to look at an M.R.I. scan and decide if a person needs to have surgery. You have to be a surgeon to decide if somebody should have surgery. . . . [¶] Part of the decision-making process is examining the patient and looking at X-rays and M.R.I. scans. We’re trained in reviewing and reading M.R.I. scans. That’s part of our board certification.” He further testified, “an orthopedic surgeon would never rely on anybody else, including a radiologist who is excellent, but we still would not rely on a radiologist to make a decision that there’s a condition that needs to have surgery. That has to come from my exam, my hands, and my brain processing what I know about the patient and looking at the films to determine if there’s actually a problem here.”
On the other hand, it is evident the jury was not persuaded by Dr. Pratley’s testimony that the surgery was necessary. Dr. Pratley is not a board-certified orthopedic surgeon. Although generally articulate in his testimony, when asked for his response to the defense’s position that Ramos only sustained a bone bruise and a grade-one strain as a result of the accident, Dr. Pratley testified, “[w]ell, that’s total hogwash.” When challenged on cross-examination about Ramos having entered a lien agreement for the services provided by Dr. Pratley and whether he was “hoping for a big fat outcome here,” Dr. Pratley responded, “[n]o. That’s B.S. That’s your comment. And that was irreverent and very out of place. [¶] . . . Sorry, Judge.” He also testified he has never personally reviewed Ramos’s MRI because he relies on radiologists “to give [him] a good reading” and “there’s no need to give ‘em my two cents’ worth.”
In light of Dr. Graboff’s and Dr. Pratley’s extensive testimony on the issue of whether Ramos’s knee arthroscopic surgery was necessary and reasonable—and the jury’s discretion to choose which to rely on—the record does not show that the comments by Shearer’s counsel, even if improper, were prejudicial with regard to the jury’s implied finding Ramos’s arthroscopic knee surgery was unnecessary and unreasonable.
IV.
THE RECORD DOES NOT SHOW JURORS ENGAGED IN PREJUDICIAL MISCONDUCT.
In her motion for a new trial, Ramos argued the jurors engaged in various forms of prejudicial misconduct. “Juror misconduct raises a presumption of prejudice, and unless the prevailing party rebuts the presumption by showing the misconduct was harmless, a new trial should be granted. [Citations.] This does not mean that every insignificant infraction of the rules by a juror calls for a new trial. Where the misconduct is of such trifling nature that it could not in the nature of things have prevented either party from having a fair trial, the verdict should not be set aside.” (Enyart v. City of Los Angeles, supra, 76 Cal.App.4th at p. 507.) The court stated, “where it is reasonably probable that in the absence of misconduct the jury would have arrived at a different verdict, the moving party is entitled to a new trial.” (Id. at p. 508.)
Ramos argues the following instances of juror misconduct: (1) certain jurors were biased, perhaps “against a Mexican [plaintiff],” because they “stated that [Ramos] had surgery to get money, that Ramos’ counsel made sure that she had this surgery, and that RAMOS’ surgeon performed an unnecessary surgery, also for financial gain”; (2) a juror went on the Internet to research Ramos’s attorney’s background and discussed her findings with the rest of the jurors; (3) the foreman asked a “nurse juror’s” professional opinion as to the necessity of the surgery, whether medication prescribed to Ramos was in appropriate amounts, and whether it was reasonably priced; (4) a juror, whose husband was a chiropractor, advised the jury of how long her husband treats patients; and (5) many jurors considered evidence that was not presented in the case that Ramos retained an attorney one and half years after the accident and did not seek care until then.
Ramos’s claims of juror misconduct are based on the declarations of jurors Reyna and Knobbe. As discussed ante, in opposition to the motion for a new trial, Shearer objected to the declarations of Reyna and Knobbe on grounds they “are comprised almost entirely of inadmissible hearsay and speculation. Further, they are improperly riddled with inadmissible statements regarding their own and other jurors’ mental processes and reasoning in an attempt to demonstrate that these statements influenced the[] jury as a whole to reach the verdict it did.” The trial court sustained Shearer’s objections. On appeal, Ramos does not analyze the merit of Shearer’s objections, other than to generally argue some portions of the declarations were admissible under Evidence Code section 1150, subdivision (a). She has thus has waived the right to rely on those declarations here.
Even if Ramos has not waived the right to challenge the trial court’s ruling sustaining Shearer’s objections to Reyna’s and Knobbe’s declarations, and might rely on the content of those declarations on appeal, Ramos has failed to show prejudicial misconduct by the jury.
First, Ramos contends some jurors displayed bias because “[s]hortly after deliberations began,” they stated that Ramos had surgery to get money, that Ramos’s counsel made sure that she had this surgery, and that Ramos’s surgeon performed an unnecessary surgery for financial gain. Ramos contends, “[t]hese statements demonstrate either an utter disregard for the evidence, i.e, they were influenced by improper comments by defense attorney which appealed to passion and prejudice, or a disturbing bias against a Mexican [plaintiff], trial attorneys, doctors, or all of the above. Either way, it is serious misconduct.” There is nothing in the record that supports Ramos’s statement those jurors had a bias against Ramos because she is Mexican, or against trial attorneys or doctors. The jurors’ statements reflect their reaction to the evidence to the jury. Whether Ramos should receive compensation for the arthroscopic surgery was an issue the jury had to decide. Juror comments during deliberations on whether the surgery was necessary, and possible motives for conducting an unnecessary surgery, simply do not amount to misconduct.
Second, Ramos contends a juror committed prejudicial misconduct by doing outside research related to the case. Reyna’s declaration stated: “During deliberations on damages, one of the jurors informed us all that, even though she knew she was not supposed to, she had looked up how long [Ramos]’s attorney had been a member of the bar, and advised us all that it had not been that long. Jurors said that perhaps if [Ramos]’s attorney was more experienced and did not have random outbursts, the plaintiff would have probably ended up with a different verdict.” Ramos does not explain how this instance of juror misconduct caused her prejudice.
Third, Ramos contends two jurors improperly shared their special training or unique personal experience with the jury. Ramos cites Reyna’s declaration, which stated: “During deliberations on damages, our foreman . . . asked one of the jurors, who was a nurse, whether as a nurse, she thought [Ramos]’s surgery was as a result of the accident, whether the medications prescribed by Dr. Pratley were in appropriate amounts and whether the medication was reasonably priced. The nurse advised him of her opinions, however, I do not remember what they were, just that she had a professional opinion on each of these questions. I do recall, at the very least, that the jury ended up awarding the cost of the medication based on the nurse[’]s professional opinion. The nurse also shared with us that the emergency room discharge paperwork did not mean anything because doctors never write anything on them, and that it should not have been allowed into evidence.” Knobbe’s declaration stated that her husband is a chiropractor and she “advised the jurors of the average amount he treats his patients, and the jurors allowed the recommended amount of therapy per my recommendations for Mrs. Ramos.” Again, Ramos has failed to establish what comments were actually made, much less show how those comments caused her any prejudice.
Fourth, Ramos contends several jurors improperly considered evidence that was not before them. Reyna’s declaration stated, “during deliberations on damages, while we were discussing if [Ramos]’s surgery was necessary, many jurors were saying that it was not necessary, because [Ramos] got an attorney one and half years after the accident, and did not seek care until then.” Those jurors’ comments reflect their analysis of the evidence of delay in Ramos’s pursuit of arthroscopic knee surgery and inferences they drew from such delay. Reyna’s declaration did not state that any juror provided evidence not before the jury on this point.
Finally, Ramos also argues the jurors generally failed to discuss the jury instructions. The jury was instructed by the trial court before they began deliberations. The jury was required to follow the instructions and refer to them when necessary. Other than the instances discussed ante, which we conclude did not constitute prejudicial error, there is no evidence the jury failed to follow the trial court’s instructions. We find no prejudicial misconduct.
DISPOSITION
The judgment is affirmed. Respondent shall recover costs on appeal.
WE CONCUR: MOORE ACTING, P. J., ARONSON, J.