Memorandum_in_support_of_motion_for_new_trial

Motion

Cal. Super. - 2nd Dist.September 8, 2016

Electronically FILED by Supetbr Court of California, County of Los Angeles on 02/06/2019 09:50 AM Sherri R. Carter, Executive Officer/Clerk of Court, by) . Lara,Deputy Clerk oe 0 N N U t A W N NN N N N N N N N N N N N e m p m je m p m em pm md pe e d R N R W D N S N N N R W DN = O MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW ONE WILSHIRE BOULEVARD, SUITE 2000 LOS ANGELES, CALIFORNIA 90017-3383 TELEPHONE 213-629-7600 FACSIMILE 213-624-1376 Stuart W. Rudnick (State Bar No. 073908) s.rudnick@musickpeeler.com Cheryl A. Orr (State Bar No. 132379) c.orr@mpglaw.com CARLSON & MESSER LLP Charles R. Messer (State Bar No. 101094) Jeanne L. Zimmer (State Bar No. 123321) J. Grace Felipe (State Bar No. 190893) 5901 W. Century Boulevard, Suite 1200 Los Angeles, CA 90045 Phone: (310) 242-2202 Fax: (310) 242-2222 Attorneys for Defendant LOS ANGELES COMMUNITY COLLEGE DISTRICT SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT ANAHIT SHIRVANYAN, Plaintiff, VS. LOS ANGELES COMMUNITY COLLEGE DISTRICT, Defendant. 1139438.1 Case No.: BC633224 (Assigned to Hon. Stephanie M. Bowick, Dept. 19) DEFENDANT LOS ANGELES COMMUNITY COLLEGE DISTRICT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR NEW TRIAL OR, IN THE ALTERNATIVE, FOR A CONDITIONAL NEW TRIAL ORDER DATE: March 18, 2019 TIME: 8:30 AM DEPT.: 19 RES ID: 807803413734 Action Filed: September 8, 2016 DEFENDANT LOS ANGELES COMMUNITY COLLEGE DISTRICT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR NEW TRIAL oe 0 N N U t A W N R O R RN RR RN NN NR NB H o m o m o m pm pm pm pm pm U S N R W R N R S Ce ® N S N R W O N m o e 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW TABLE OF AUTHORITIES .......cooiiiiiiiiii ccc see I. INTRODUCTION iossuas owvuswunses sus ossesmansssvs ns sss ssn es sve a555 5s rues sae 556 5055085 Hs waRas53 IL. LEGAL ARGUMENTS .....coiiiiiiiiii cece sae A. The Legal Standards Relating to New Trial Motions..........cccecveeveenneenieeneenne. B. The Award of $2,775,000 in Emotional Distress Damages is Excessive and Is An Improper Product of Sympathy and Irregularities at Trial ...................... C. LACCD Was Deprived of a Fair Trial Because Plaintiff Was Allowed to Introduce Incompetent Evidence That Plaintiff’s Injuries Were Caused By Her Job and LACCD Was Precluded From Mentioning Her Workers’ Compensation Proceeding for Recovery For Such Injuries..........ccccoevieenneenee. D. LACCD Was Deprived of a Fair Trial Because Plaintiffs Counsel Tried This Disability Discrimination Case As a Personal Injury Case and Confused the Jury to Improperly Award Plaintiff Economic and Non- Economic Damages Caused By Her Workplace Injury on December 18, 2015 and Not Caused by Any Disability Discrimination in Violation of FEHA cteeects sre secretes sae sere eee II. CONCLUSION ....coiiiiiiiiici cc sess sae sree sees 1139438.1 TABLE OF CONTENTS 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR NEW TRIAL DEFENDANT LOS ANGELES COMMUNITY COLLEGE DISTRICT'S oe 0 N N U t A W N R O R RN RR RN NN NR NB H o m o m o m pm pm pm pm pm U S N R W R N R S Ce ® N S N R W O N m o e 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW TABLE OF AUTHORITIES Page(s) Cases American Marine Paint Co. v. Nyno Line (19719) 45 Cal APD. Lene eee eee ete ste eabe estes tee ebbe este anse ee nsee sabe enbeenneas 7 Angelotti v. The Walt Disney Co. (2011) 192 Cal. APP-Ath 1304... cc. ieee e e este se s teeta sate seas e eases sae eene 16 Barrese v. Murray (2011) 198 Cal. APP-Ath 404 .......oieeiieee eee eee eee estes sabe e eesti sabe sabe enneas 7 City of Los Angeles v. Decker CLOT) 1B CHL. BOO) cin sssnnimmsnsinsinsss so mwmiss mss n.35555s 455505550555 5550 5505 5008 5 53505 AS45055. 7 Clemente v. State of California (1985) 40 Cal.3d 202.....eeeieiie eee eee ete eee e teeta sabe e atest ee sbbe sabe an sees tee eabe sete enneas 7 Cunningham v. Simpson (1969) 1 Cal.3d 301... niece eee eee eae atest testes sabe e teeta a sbbe este ense ee seeesbesnbeanneas 6 Dell’Oca v. Bank of New York Trust Co. CZOUB) 1.59 Call ADDAT: 331 susiowsssumnenossmsssnsimnnsmssss ss sos 5s s sm 6s n stm s ms 6 Hamasaki v. Flotho (1952) 39 Cal.2d 602... eee eee este eee este st te eae eee b ee ebte sabe a eee t ee eabe sete ennees 6 Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.APP-3A 390 ....c eee tte sates eee ete sate sabe e eee n ee esae eens 12 Kennemur v. State of California (1982) 133 Cal.APP-3A 07 eects eters sees tee sate sabe e seen ee sae eene 12 Malkasian v. Irwin (1964) 61 Cal.2d 738... eee eee st ee ete eabe esse eens ae ebbe sabe a see eeeens 6,7 McCoy v. Pacific Maritime Assn. (21:3) 2116 Cl IER: ZB scescusonmnsesossownoonnssessssnsssorsaess sss ss 0800s S855 A SS 0% 6 Mercer v. Perez (1968) 68 Cal.2d TOA... eect eee atest teste sabe e atest ee ebbeesbe ease eebee este sabe anneas 7 Miklosy v. Regents of University of California (2008) 44 Cal. Ath 8T76....cceeeeeieeeie ters sates e teeta bbe sabe a eee tee este sabe ane esses ssee eens 17 Mokler v. Orange (2007) 157 Cal APPA 121 ..eeii cei eee esate eee ete esas sabe e east ee ebbe sete anneas 6 1139438.1 3 DEFENDANT LOS ANGELES COMMUNITY COLLEGE DISTRICT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR NEW TRIAL oe 0 N N U t A W N R O R RN RR RN NN NR NB H o m o m o m pm pm pm pm pm U S N R W R N R S Ce ® N S N R W O N m o e 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal. APP.Ath O52... eee eee eet este setae ete sate esas e eee eee sae eene 14 Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910... eee et teeta testes sb ae sateen sees beeebae sabe enneas 7,8 Nealy v. City of Santa Monica (2015) 234. Call APA. 35D 50mm cnsmsn.18 ssn swans 0555558 0555557558 5455555 S555 55 05555558 SA555 45.59 45550 AFR HIRAS TH 14 Scotch v. Art Institute of California (2009) 173 Cal. APP-Ath O86....cneeeeiie eee eee t ee sae sabe ese essen 14 Shaw v. Pacific Greyhound Lines (1958) 50 Cal.2d 153. eee etter t ee ete sabe e sates b ee esbe esse antes bee esbeenbeanneas 6 Strosk v. Howard Terminal Co. C1954) 1.25 Call ITZ]. PDT ss osasnotusoressoeosiassonsavessorsoesnsosns es sss sso sess s 0 A A 7 Tramell v. McDonnell Douglas Corp. (1984) 163 Cal APP-3A 157 cee eee eae este sabe esate sees b ee eabe sabe enneas 7 Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal. APP-Ath 133. cece eee sbae sabe e teeta a sbae este ene essen 17 Statutes Call. Lal. Cole § SOCK. co.mmmss munis asso msm mms ss mms 555s 65s 55055 is iss 55s ss mssss 55s 5.5 16 COE CAV. PIOC. § 057 eee eet ae se se seat ae sess sese ss sssesese nese sesnsssensnensnenennns 6,7 Code Civ. Proc.§ 662.5, SUDA. (D) ...ccoeoiiiiiiii ieee eects etree ease eee re area ee ee eee aranre es 7 1139438.1 4 DEFENDANT LOS ANGELES COMMUNITY COLLEGE DISTRICT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR NEW TRIAL oe 0 N N U t A W N R O R RN RR RN NN NR NB H o m o m o m pm pm pm pm pm U S N R W R N R S Ce ® N S N R W O N m o e 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW I. INTRODUCTION Los Angeles Community College District (“LACCD”) moves for a new trial on the grounds that the award of non-economic damages in the total amount of $2,775,000 is excessive, a product of irregularities in the deliberations of the jury, and in contravention to the jury instruction that the jury should not be swayed by sympathy. LACCD also moves for a new trial on the grounds that the excessive award of non- economic damages and the awards of past and future economic loss are products of irregularities in the conduct of the trial, including the introduction of evidence by Plaintiff that her injuries were work-related and caused by her employer’s negligence in violation of the Court’s instruction that the Plaintiff and her expert witness should avoid mention of Plaintiff's Workers” Compensation claim, and even though Plaintiff’s medical expert could not opine to a medical degree of certainty that any of her physical injuries were actually caused by her employment. The excessive awards of emotional distress damages and economic damages are also against the law because they violate the workers’ compensation exclusivity rule that prohibits employees from suing their employers for personal injuries arising in the workplace and recovering emotional distress and consequential financial damages for their workplace injuries. The testimony at trial attributed Plaintiff’s economic and non-economic damages, in particular her clinical depression, to the loss of her job when she went out on a work-related shoulder injury on December 18, 2015. Although Plaintiff styled this action as a disability discrimination action, Plaintiff’s lawyers tried the case as if it were a personal injury case arising out of the negligence of her employer in assigning her job duties that caused her injuries and the negligence of LACCD in failing to train Plaintiff’s supervisors in the interactive process and the law of reasonable accommodations as it related to disabilities. Defendant LACCD was thus deprived of a fair trial. The award of $2.775 million in emotional distress damage in a case where the jury did not determine that LACCD engaged in any actual disability discrimination animated by an improper motive reflects that, as the Court was properly concerned would happen, the jury was confused and believed that it could compensate Plaintiff for the emotional distress caused by injuries she 1139438.1 5 DEFENDANT LOS ANGELES COMMUNITY COLLEGE DISTRICT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR NEW TRIAL oe 0 N N U t A W N R O R RN RR RN NN NR NB H o m o m o m pm pm pm pm pm U S N R W R N R S Ce ® N S N R W O N m o e 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW sustained on the job, as opposed to the harm Plaintiff suffered exclusively from violation of LACCD’s statutory duties under the Fair Employment & Housing Act (“FEHA”). IL. LEGAL ARGUMENTS A. The Legal Standards Relating to New Trial Motions The trial court has an incredible amount of discretion to grant a new trial motion. As stated by the California Supreme Court: The determination of a motion for new trial rests so completely within the court’s discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears, and the order will be affirmed if it may be sustained on any ground, although the reviewing court might have ruled differently in the first instance. [Citation omitted.] It has also been said that the power of the judge to do justice by ordering a new trial is not impaired even though the moving party is technically estopped to claim error or has waived his right to complain. [Citation omitted. ] (Shaw v. Pacific Greyhound Lines (1958) 50 Cal.2d 153, 159; see also, Malkasian v. Irwin (1964) 61 Cal.2d 738, 746-748 [affirming order granting new trial on grounds of misconduct of counsel arguing facts outside the record, even if there was no objection by counsel].) This Court may grant LACCD’s motion for new trial on the ground that the emotional distress damages awarded are excessive. (Code Civ. Proc. § 657(5); see also Hamasaki v. Flotho (1952) 39 Cal.2d 602, 608-11 [if improper damages are awarded, the Court may grant a new trial on all issues, not just damages].) “When the award as a matter of law appears excessive, or where the recovery is so grossly disproportionate as to raise a presumption that it is the result of passion or prejudice, the duty is then imposed upon the reviewing court to act.” (Cunningham v. Simpson (1969) 1 Cal.3d 301, 308-09.) A trial court has considerable discretion under section 657 to order a new trial for excessive damages. (See, e.g., Mokler v. Orange (2007) 157 Cal.App.4th 121, 146, 68 C.R.3d 568 [trial judge properly granted new trial on sole ground that noneconomic damages award was excessive]; see also, McCoy v. Pacific Maritime Assn. (2013) 216 Cal. App.4th 283, 306 [trial court properly granted new trial for excessiveness of damages in employment action under FEHA]; Dell’ Oca v. Bank of New York Trust Co. (2008) 159 Cal. App.4th 531, 549 [new trial order based on excessive damages was proper, even if trial judge’s true reason for granting order 1139438.1 6 DEFENDANT LOS ANGELES COMMUNITY COLLEGE DISTRICT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR NEW TRIAL oe 0 N N U t A W N R O R RN RR RN NN NR NB H o m o m o m pm pm pm pm pm U S N R W R N R S Ce ® N S N R W O N m o e 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW was insufficiency of evidence to prove causation].) On a new trial motion, the trial court is sometimes referred to as the 13th juror and is allowed to weigh the evidence and reach credibility determinations directly contrary to the jury, particularly where the verdict is excessive. (See, Barrese v. Murray (2011) 198 Cal. App.4th 494, 502-503; Mercer v. Perez (1968) 68 Cal.2d 104, 112 [the court has the power “to disbelieve witnesses, reweigh the evidence, and draw reasonable inferences therefrom contrary to those of the trier of fact]; Strosk v. Howard Terminal Co. (1954) 129 Cal.App.2d 797, 801-802.) Although misconduct by a jury is itself a ground for granting a new trial, a trial judge may choose to include misconduct by the jury as a reason for his or her conclusion that damages were excessive. “This is a permissible procedure.... There is no legal or logical impediment to the trial judge’s decision that juror misconduct was an objective fact which improperly influenced the verdict.” (Tramell v. McDonnell Douglas Corp. (1984) 163 Cal.App.3d 157, 171.) The court may also grant a new trial when there is an “[i]rregularity in the proceedings of the court, jury or adverse party ... by which either party was prevented from having a fair trial.” (Code Civ. Proc. § 657, subd. 1.) Improper argument to the jury is also an irregularity which may justify a new trial. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 870; Clemente v. State of California (1985) 40 Cal.3d 202, 217.) A new trial may be granted if the trial judge believes that misconduct of counsel or other irregularity at trial led to the jury being confused and not having a clear idea of the law applicable to the facts or because the verdict is against law. (American Marine Paint Co. v. Nyno Line (1919) 45 Cal.App.1, 3.) The trial court has the power to grant new trial for an irregularity or misconduct, whether or not there was an objection at the time of trial, if the trial court believes the defendant was deprived of a fair trial. (Malkasian, 61 Cal.2d at 746-748.) The trial court may also grant a conditional new trial order; such as an order granting a new trial unless the Plaintiff accepts a reduced damages award. (Code Civ. Proc.§ 662.5, subd. (b).) Section 662.5 provides that the trial court considering a conditional new trial motion acts as an independent trier of fact and exercises “its independent judgment” that a reduction of the verdict is “fair and reasonable” based on the evidence presented at trial. (Ibid.; see also, Neal v. 1139438.1 7 DEFENDANT LOS ANGELES COMMUNITY COLLEGE DISTRICT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR NEW TRIAL oe 0 N N U t A W N R O R RN RR RN NN NR NB H o m o m o m pm pm pm pm pm U S N R W R N R S Ce ® N S N R W O N m o e 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW Farmers Ins. Exchange (1978) 21 Cal.3d 910, 932-933.) On appeal, such a conditional new trial order will not be reversed absent a finding of abuse of discretion. (Ibid.) B. The Award of $2,775,000 in Emotional Distress Damages is Excessive and Is An Improper Product of Sympathy and Irregularities at Trial The jury was admonished not to be biased or swayed by sympathy for the Plaintiff: Do not let bias, sympathy, prejudice or public opinion influence your verdict. (Preliminary Instruction No. 200.) The amount of the award of non-economic damages reflects the jury was motivated by excessive sympathy for Plaintiff. Plaintiff repeatedly broke down in tears at trial. (Messer Decl., { 17.) Most prejudicially, during LACCD’s Closing Argument, Plaintiff was crying loud enough in the courtroom for the Court to interrupt the Closing Argument, require a sidebar because the jurors were taking notice, and to require Plaintiff to leave the courtroom. (/bid., Exh. 12.) Plaintiff’s counsel set the bar far higher than reasonable, by urging the jury to award more than $6 million in emotional distress damages for Plaintiff’s permanent severe clinical depression. (Messer Decl., 24, Exh. 19.) While the jury may have believed that its award of $2.775 million, less than half of what Plaintiff requested, was reasonable, the amount was nonetheless excessive. In considering whether the damages are excessive, the trial court should also take into account that the evidence at trial regarding Plaintiff’s emotional distress and clinical depression was newly developed for Plaintiff’s trial presentation. For more than two years while the case was pending, Plaintiff did not claim during discovery that she suffered from any severe emotional distress, let alone that she suffered from severe clinical depression that would be permanent. Plaintiff filed her Complaint on September 8, 2016. (Messer Decl., 2.) Plaintiff's made a section 998 offer to compromise in the amount of $100,000.00 on October 17, 2017. (Ibid.) At that time, Plaintiff’s workers’ compensation case was proceeding and there were no assertions in that proceeding that Plaintiff suffered from any depression. (Ibid.) LACCD'’s form interrogatory no. 6.1 asked Plaintiff if she attributed any physical, mental, or emotional injuries to the incident. (Messer Decl., Exh. 1.) Plaintiff’s responses did not mention emotional distress or clinical depression: 1139438.1 8 DEFENDANT LOS ANGELES COMMUNITY COLLEGE DISTRICT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR NEW TRIAL oe 0 N N U t A W N R O R RN RR RN NN NR NB H o m o m o m pm pm pm pm pm U S N R W R N R S Ce ® N S N R W O N m o e 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW Response to Form Interrogatory 6.1: Objection. This interrogatory is unintelligible and vague when applied to the facts and circumstances of this action. Subject to and without waiving the said objection: Plaintiff has brought three causes of action under Fair Employment Housing Act against the Defendant for disability discrimination, failure to engage in interactive process, and for failure to provide reasonable accommodation. Plaintiff has alleged that during the course of her employment with Defendant, she hags [sic] developed several medication conditions [sic], known as cervical sprain, right shoulder tendonitis, lateral epicondylitis of right elbow, right wrist tendonitis, and carpal tunnel syndrome of her right wrist. Plaintiff has further alleged that she has requested the Defendant to engage in interactive process and to provide her with reasonable accommodation but Defendant has failed to act. (Id., Exh. 1, p. 5:19- 6:6) Plaintiff’s response to Form interrogatory no. 6.2 seeking the specifics of each injury that Plaintiff attributed to the incident was the same as the response to interrogatory no. 6.1. (/d., Exh. 1, p. 6:8- 24). Plaintiff’s responses to the employment interrogatories served by LACCD were likewise devoid of any mention of emotional distress damages or depression. (Messer Decl., {6, Exh. 2.) LACCD also subpoenaed all of Plaintiff’s records of her treating doctors’ records. (Messer Decl., 3.) None of those records mentioned any treatment or diagnosis for depression or other mental health problems. (/bid.) At her deposition on November 28, 2017, Plaintiff did not offer any testimony about emotional distress or depression when asked about her injuries: Q. Did you suffer any injuries other than carpel tunnel? Mr. Rostomyan: Objection. Asks for expert opinion. She knows - There is a --- The Witness: [had a cut here (indicating). Ms. Zimmer? A what? The Interpreter: Cut. C-u-t. “Cut here” and she is indicating in her right shoulder. Q. What else? A. Yes. Q. Anything else? A. A problem with my neck disc.... (Messer Decl., (7, Exh. 3, p. 105:14-106:23.) Plaintiff’s Supplemental responses to LACCD’s Form Interrogatories, Employment Law, Set One, served on August 14, 2018, for the first time referred to generic mental and emotional injuries, but did not assert Plaintiff suffered from clinical depression. (Messer Decl., { 8, Exh. 4.) Plaintiff only designated Dr. Anthony Reading as a psychologist expert on October 15, 1139438.1 9 DEFENDANT LOS ANGELES COMMUNITY COLLEGE DISTRICT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR NEW TRIAL oe 0 N N U t A W N R O R RN RR RN NN NR NB H o m o m o m pm pm pm pm pm U S N R W R N R S Ce ® N S N R W O N m o e 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW 2018. (Messer Decl., 9.) Dr. Reading was deposed on November 20, 2018, less than a month before trial. (/d., Exh.5.) LACCD received Dr. Reading’s file only five days before his deposition. (Messer Decl., 9) When confronted with the complete absence of any mention of depression in Plaintiff’s medical records, Dr. Reading conceded that omission was conspicuous. (Ibid., Exh. 5.) As the Court may recall, at the Final Status Conference, LACCD raised this issue of being sand-bagged by late notice of a claim of severe emotional distress damages until disclosure of an expert diagnosis of severe clinical depression on the eve of trial and requested leave of court to conduct a mental examination of Plaintiff, but the motion was denied. (Messer Decl., 10.) At trial, Dr. Reading testified that Plaintiff suffers from severe clinical depression and gave a prognosis that the depression will be permanent based on a single interview with Plaintiff, review of her medical records, and review of Plaintiff’s deposition testimony and the deposition of Ms. Teplin, but no treatment of Plaintiff. (Messer Decl., q 18, Exh. 18 [12/11/18 RT 60-62.) Again, nothing in her medical records mentions that Plaintiff complained about, was diagnosed with, or treated for depression or any other mental health issue. (Messer Decl., {11 and 12, Exhs. 6 and 7.) Notably, Dr. Reading is an expert witness who is regularly retained by Plaintiff’s counsel. (Exh. 13 [12/11/18 RT 77:21-27](retained over 20, 25 or more times).) The trial court should grant a new trial on the grounds that an award of $2,775,000 for non- monetary damages is excessive for a psychological condition that was never previously asserted by Plaintiff in discovery, which never appeared in any of her treating physicians’ medical records, and was first asserted by a non-treating expert witness who regularly works with Plaintiff’s counsel, less than a month before trial, based on a single interview with the Plaintiff. The non- economic damages are excess and were the product of irregularities at trial, including Plaintiff’s crying at trial, including during LACCD’s Closing Argument, the exorbitant award requested " At his initial exam of Plaintiff on January 14, 2016, Dr. Berg asked Plaintiff if she suffered from any chronic depression or anxiety and she said “no” and he never treated her for any emotional distress or mental health issue. (Messer Decl., 14, Exh. 8 [12/5/18 RT 99:7-9; 112:11-25.].) 1139438.1 10 DEFENDANT LOS ANGELES COMMUNITY COLLEGE DISTRICT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR NEW TRIAL oe 0 N N U t A W N R O R RN RR RN NN NR NB H o m o m o m pm pm pm pm pm U S N R W R N R S Ce ® N S N R W O N m o e 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW during Plaintiff’s Closing Argument, and the jury’s failure to abide by the instruction that the award should not be the product of sympathy. C. LACCD Was Deprived of a Fair Trial Because Plaintiff Was Allowed to Introduce Incompetent Evidence That Plaintiff’s Injuries Were Caused By Her Job and LACCD Was Precluded From Mentioning Her Workers’ Compensation Proceeding for Recovery For Such Injuries Plaintiff’s counsel made a motion in limine to exclude evidence of the Plaintiff’s workers’ compensation claim, which the court granted over LACCD’s objections. (Messer Decl., 10.) At the time of trial, however, Plaintiff’s counsel proceeded to offer the testimony of Dr. Berg, Plaintiff’s treating physician in the workers’ compensation proceeding. (Messer Decl., q 14, Exh. 8.) Beforehand, the parties and the Court engaged in extensive discussions relating to the limitations for direct and cross-examination of Dr. Berg. (Exh. 8[12/5/18 RT 61-84.) The Court instructed Plaintiff’s counsel to tell Dr. Berg not to mention workers’ comp, workers’ compensation or anything like it. (12/15/18 RT 79:16-23.) The Court instructed the parties that, in calling Dr. Berg to the stand, there could be “no mention of workers’ compensation at all. And [Dr. Berg] is not going to be able to mention that.” (12/5/18 RT, p. 80:2-25). Dr. Berg’s testimony was to be limited to “diagnosis, treatment plan, what he communicated to her, that’s it.” (12/5/18 RT 82:22-24.) In violation of the Court’s express limitation on the scope of Dr. Berg’s testimony, Plaintiff’s counsel asked questions designed to elicit opinion testimony from Dr. Berg that Plaintiff suffered an “occupational injury” and that her physical injuries were the result of cumulative trauma from her job. (Exh. 8 [12/5/18 RT 105-108].) Although the trial court warned Plaintiff’s counsel during the examination to further refrain from using the word “occupational,” the damage was already done. (12/5/18 RT 114:6-16.) LACCD objected that all of Plaintiff’s physical injuries were thus presented to the jury as having been caused by her employment with LACCD, despite the fact that Plaintiff was seeking compensation for those physical injuries in her workers’ compensation proceeding against LACCD and the standard of causation in a workers’ compensation case is only 1%. (Messer Decl., Exh. 8 [12/5/18 RT 120-121].) Although defense counsel was hamstrung and unable to 1139438.1 11 DEFENDANT LOS ANGELES COMMUNITY COLLEGE DISTRICT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR NEW TRIAL oe 0 N N U t A W N R O R RN RR RN NN NR NB H o m o m o m pm pm pm pm pm U S N R W R N R S Ce ® N S N R W O N m o e 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW mention that Plaintiff was already seeking compensation for those workplace injuries in the workers’ compensation proceeding by the judge’s in limine ruling, Plaintiff’s counsel was able to use Dr. Berg’s testimony to convince the jury that all of Plaintiff’s injuries were caused by her job and to lay blame on LACCD for causing those injuries. On cross-examination, Dr. Berg confirmed that he could not even testify to a medical degree of certainty that any one of Plaintiff’s physical conditions, including her carpal tunnel syndrome, her purported disability, was actually caused by her job. (Exh. 8 [12/5/18 RT 116:4- 28] (“I never formulated that opinion that it was 51% or greater”); 117:1-5.) Dr. Berg had only attributed her job as at least a 1% cause of Plaintiff’s injuries. (12/5/18 RT 115:27-116:6.) As Dr. Berg admitted on cross-examination, there are numerous other non-occupational causes of carpal tunnel syndrome. (Id. atp. 117:6-11.) And, he admitted that there is a huge dispute in the medical community as to whether cumulative trauma causes carpal tunnel syndrome. (/d. at p. 117:12-19.) Dr. Berg’s testimony that Plaintiff’s injuries were “occupational” or from her job that was not based on a reasonable medical degree of certainty was incompetent. (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403 [expert testimony as to causation of a physical injury must be proven “within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima face case.”].) Defense counsel thereafter sought unsuccessfully to preclude the psychologist, Dr. Reading, from offering any testimony attributing Plaintiff’s depression to Plaintiff’s carpel tunnel and other injuries based on Dr. Berg’s medical records because Dr. Reading was himself relying on the incompetent opinion testimony from Dr. Berg attributing Plaintiff’s physical injuries to her job. (Messer Decl., (15, Exh. 9 [12/6/18 RT 175-185].) Expert testimony that is based on incompetent hearsay testimony of another expert is itself incompetent. (See, e.g., Kennemur v. State of California (1982) 133 Cal.App.3d 907, 923 [“Like a house built on sand, the expert’s opinion is no better than the facts on which it is based.”].) LACCD also made a motion for nonsuit based on Dr. Berg’s incompetent evidence of causation. If Plaintiff did not demonstrate the her purported disability, carpel tunnel syndrome, 1139438.1 12 DEFENDANT LOS ANGELES COMMUNITY COLLEGE DISTRICT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR NEW TRIAL oe 0 N N U t A W N R O R RN RR RN NN NR NB H o m o m o m pm pm pm pm pm U S N R W R N R S Ce ® N S N R W O N m o e 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW was work-related (as opposed to a non-reversible case of arthritis or a thyroid condition, for example), then Plaintiff could not demonstrate any interactive process or reasonable accommodation would have been effective to allow Plaintiff’s disability to heal. (Messer Decl., Exh. 14 [12/13/18 RT 10-19].) However, the trial court denied the motion. (/bid.) All of these irregularities at trial deprived LACCD of a fair trial and contributed to the excessive awards of economic and non-economic damages that were not based on an opinion of causation to the requisite degree of medical certainty. D. LACCD Was Deprived of a Fair Trial Because Plaintiff’s Counsel Tried This Disability Discrimination Case As a Personal Injury Case and Confused the Jury to Improperly Award Plaintiff Economic and Non-Economic Damages Caused By Her Workplace Injury on December 18, 2015 and Not Caused by Any Disability Discrimination in Violation of FEHA With respect to her workplace injury on December 18, 2015, Plaintiff testified she experienced a “different pain, really different, not the same pain” and gestured to her shoulder--- i.e., not the pain in her wrist associated with carpal tunnel syndrome, Plaintiff’s purported disability. (Messer Decl., 17, Exh. 11 [12/10/18 RT 114:4-115:7].) Plaintiff left that day and never returned to work. (12/10/18 RT 126:2-18.) The rotator cuff tear in her shoulder was the primary medical condition for which Dr. Berg treated Plaintiff in the workers’ compensation case. (Messer Decl., Exh. 8 [12/5/18 RT 123:13-21; 124:15-19].) LACCD left open Plaintiff’s job for her until Spring 2016. (Messer Decl., 20, Exh. 15 [12/10/18 RT 43:19-24]; 421, Exh. 16 [12/11/18 RT 101-103; 121:9-21.) The new Director of the Child Development Center, Ms. Jennifer Guevara, testified she called to inquire if Plaintiff would be returning to work for the next school year and was subsequently told by Plaintiff’s daughter that Plaintiff would not be returning. (Exh. 16 [12/11/18 RT 104-107].) After the December 18, 2015 on-the-job injury, Plaintiff herself received doctors’ notes repeatedly stating that Plaintiff could not return to work. (Messer Decl., Exh. 8 [12/5/18 RT 117:20-119:15]; Exh. 7.) Plaintiff thus pursued a workers’ compensation claim. Beginning on December 18, 2015, there was no interactive process or reasonable accommodation that was available to LACCD, because it was not possible for Plaintiff to return to work. The “reasonable accommodation” requirement only applies when an employee can perform 1139438.1 13 DEFENDANT LOS ANGELES COMMUNITY COLLEGE DISTRICT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR NEW TRIAL oe 0 N N U t A W N R O R RN RR RN NN NR NB H o m o m o m pm pm pm pm pm U S N R W R N R S Ce ® N S N R W O N m o e 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW the essential job functions and the “interactive process” requirement only applies where reasonable accommodation is possible; i.e., when the employee can perform the essential job functions. (See, Scotch v. Art Institute of California (2009) 173 Cal. App.4th 986, 1018; Nadaf-Rahrov v. Neiman Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 963; see also, Nealy v. City of Santa Monica (2015) 234 Cal. App.4th 359, 375-376.) As the Courts have made clear, a reasonable accommodation is not excusing the employee from performing his or her essential job functions indefinitely. (Id. at pp. 376-377.) Under the circumstances, as a matter of law, LACCD could not be liable for any failure to engage in the interactive process or make a reasonable accommodation to Plaintiff after December 18, 2015 because Plaintiff was indisputably unable to perform her essential job functions beginning December 18, 2015 and continuing thereafter. The new occupational injury was to a different part of Plaintiff’s body. Plaintiff was limited to recovering for that injury, her medical treatment for that injury, her loss of earnings from that injury and her emotional distress for that injury in the workers’ compensation proceeding. This was a disability discrimination case, not a personal injury case. Furthermore, the jury did not buy into the argument that Plaintiff was “terminated” from her employment because of her disability, but apparently accepted the testimony that Plaintiff essentially resigned and did not come back to work after her December 18, 2015 workplace injury. (Exh. 16 [12/11/18 RT 143:25-144:145; Exh. 15 [12/10/18 RT 37:14-16].) The jury therefore did not find LACCD liable for disability discrimination. LACCD was only found liable for failure to engage in the interactive process and failure to provide Plaintiff with reasonable accommodations under FEHA. Plaintiff was therefore only entitled to her damages caused by those statutory violations. To establish “causation,” the Plaintiff was required to demonstrate that the failure to engage in the interactive process or the failure to make a reasonable accommodation was a “substantial factor” in causing the harm or injury suffered.” (CACI 430.) Unfortunately, irregularities during the trial, including the manner in which Plaintiff’s counsel tried this case, confused the jury into awarding damages to Plaintiff that were not caused by any violations of FEHA by LACCD in failing to engage in the interactive process or failing to 1139438.1 14 DEFENDANT LOS ANGELES COMMUNITY COLLEGE DISTRICT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR NEW TRIAL oe 0 N N U t A W N R O R RN RR RN NN NR NB H o m o m o m pm pm pm pm pm U S N R W R N R S Ce ® N S N R W O N m o e 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW accommodate Plaintiff. The evidence of a failure to engage in the interactive process related to the failure of Plaintiff’s supervisors, Ms. Terry Teplin and Ms. Rubinancy Yates, to engage in the process when Plaintiff was wearing a wrist brace for her carpal tunnel syndrome and, according to Plaintiff, told Ms. Teplin that she suffered from carpal tunnel syndrome and asked both Ms. Teplin and Ms. Yates for help with her job duties in the kitchen and provide her with an accommodation. Plaintiff did not suffer any economic damages whatsoever from those failures to abide by the FEHA statute before December 18, 2015, because Plaintiff continued to work for LACCD and continued to receive her wages for her employment at LACCD. Therefore, Plaintiff failed to prove that she incurred any economic damages that were attributable to LACCD’s failure to engage in the interactive process or to make reasonable accommodations for Plaintiff at any time before December 18, 2015. Neither the past nor the future economic damages awarded by the jury were caused by the FEHA violations that the jury found LACCD had committed. With respect to her new-found claim of severe clinical depression, Dr. Reading attributed the cause of Plaintiff’s depression to the loss of her job and testified the onset was in 2016. (Messer Decl., (18, Exh. 13 [12/11/18 RT 49].) According to Dr. Reading, Plaintiff’s depression was not caused by the pain she suffered before December 18, 2015: A. ... Ms. Shervanyan very clearly said her depression started following the loss of her job. But while she was working, she was in pain, but not with this depression.... she didn’t have the depression that came on over time following the job loss .... (Exh. 13 [12/11/18 RT 73:1-25], emphasis added.) He reiterated that Plaintiff told him the depression set in in 2016 after her job loss: ... She maintained that once she lost her job, her depression set in and her pain became worse.... So she developed the depression, according to her, in 2016 .... (Exh. 13 [12/11/18 RT 76:9-14], emphasis added.) According to Dr. Reading, before the loss of her job due to the torn rotator cuff, Plaintiff was coping with her pain from her alleged disability, the carpal tunnel syndrome in her wrist for which she wore a wrist brace, and was not depressed until after she left her job and could not return to work. The earlier violations of FEHA relating to not engaging in the interactive process 1139438.1 15 DEFENDANT LOS ANGELES COMMUNITY COLLEGE DISTRICT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR NEW TRIAL oe 0 N N U t A W N R O R RN RR RN NN NR NB H o m o m o m pm pm pm pm pm U S N R W R N R S Ce ® N S N R W O N m o e 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW and accommodating Plaintiff’s carpel tunnel syndrome did not cause Plaintiff’s depression according to her own expert’s testimony. “But for” the job loss due to the rotator cuff injury, she would not have suffered depression. Therefore, as a legal matter, the jury could not properly award emotional distress damages to Plaintiff for her depression that first onset sometime after she left her job on December 18, 2015 or for future economic damages that were caused by an on-the-job shoulder injury that prevented Plaintiff from ever returning to work and led to her making a workers’ compensation claim. The cause of Plaintiff’s depression may have been the loss of her job, according to Dr. Reading, but the loss of her job was not caused by any failure on the part of LACCD to engage in the interactive process or to afford Plaintiff a reasonable accommodation, but as a result of her on-the-job shoulder injury that prevented her from ever returning to work. As discussed above, Plaintiff could not perform the essential functions of the job so there were no reasonable accommodations and no interactive process to be had. Plaintiff’s loss of her job and any depression caused by her job loss were directly caused by her workplace shoulder injury on December 18, 2018, the compensation for which was governed exclusively by the workers’ compensation laws. Plaintiff’s ability to seek recovery for her employer’s negligence for any on the job injury was foreclosed as a legal matter under the workers’ compensation exclusivity doctrine under which Plaintiff is statutorily limited to her rights for recompense under the Workers’ Compensation Act. (Cal. Lab. Code § 3600; Angelotti v. The Walt Disney Co. (2011) 192 Cal.App.4th 1394, 1403 [“Workers’ compensation provides the exclusive remedy against an employer for an injury sustained by an employee in the course of employment and compensable under the workers’ compensation law. [citation]. This precludes a tort remedy against the employer if the conditions of compensation are present.”].) * Had Plaintiff's counsel convinced the jury, as they sought to do, that LAACD terminated or fired Plaintiff after December 18,2015, then Dr. Reading’s testimony may have been sufficient to establish a causal, “but for” connection between LACCD’s disability discrimination-disparate treatment claim and Plaintiff’s depression. However, the jury did not find LACCD liable for disability discrimination. 1139438.1 16 DEFENDANT LOS ANGELES COMMUNITY COLLEGE DISTRICT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR NEW TRIAL oe 0 N N U t A W N R O R RN RR RN NN NR NB H o m o m o m pm pm pm pm pm U S N R W R N R S Ce ® N S N R W O N m o e 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW The workers’ compensation exclusivity rule applies to bar not only claims for physical injury against an employer, but also emotional injuries, including severe emotional distress, that are caused by conduct that occurred at the workplace. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 902-903.) “Physical and emotional injuries sustained in the course of employment are preempted by the workers’ compensation scheme and generally will not support an independent cause of action. [citation].” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 133, 161.) The questioning of Ms. Grice foreshadowed that, instead of intending to prove a disability discrimination claim, Plaintiffs’ counsel were trying a much easier, but statutorily impermissible, personal injury case against Plaintiff’s employer, LACCD for her work-related injuries: Q. And would you in any way be concerned if a supervisor that an employee was dealing with regarding the accommodation process, if they, themselves, were not trained in the accommodation process? A. As long as the process gets addressed and the accommodation gets made, that's the main thing. so it would depend on the circumstance -- how impactful was that if the supervisor didn't know the exact process. if the accommodation was effective, then I don't know if I would be terribly concerned about that particular aspect... Q. And what if the impact was that the employee became physically more injured as time went on because of this lack of training by a supervisor?! A. If that was directly as a result of not being trained, sure, that would be problematic. Q. And that would concern you, as you sit here today? A. Yes, that would be concerning. Mr. Nguyen: I have no further questions. (Messer Decl., Exh. 10 [12/06/18 RT 41- 42], emphasis added.) Plaintiff’s counsel used the workers’ compensation in limine ruling as a shield protecting Plaintiff from having the jury hear that Plaintiff’s workplace injuries were subject to workers’ compensation, but took great advantage of that ruling by attributing all of Plaintiff’s injuries to her job and the negligence of her supervisors that were untrained in the interactive process and making reasonable accommodations for disabilities. ( Exh. 18 [12/06/18 RT 132-133]; Exh. 19 [12/10/18 RT 20.) After Plaintiffs counsel introduced Dr. Berg’s causation testimony attributing Plaintiff’s 1139438.1 17 DEFENDANT LOS ANGELES COMMUNITY COLLEGE DISTRICT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR NEW TRIAL oe 0 N N U t A W N R O R RN RR RN NN NR NB H o m o m o m pm pm pm pm pm U S N R W R N R S Ce ® N S N R W O N m o e 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW injuries to her job in violation of the Court’s instructions, the Court belatedly recognized the danger of confusing the jury by injecting the issue of the workplace nature of Plaintiff’s injuries into the trial: I don’t want to get too into the workers’ compensation. I feel like if we start having now rebuttal evidence on it, it really is not pertinent to anything because we are going to be telling the jury the cause of the injury and the reason for the injury ... but the cause or how it happened is not necessarily relevant to their decision. (Exh. 17 [12/13/18 RT 8:13-22].) Plaintiff’s counsel compounded the problem thereafter by specifically eliciting testimony from Plaintiff’s daughter about reporting Plaintiff’s December 18, 2015 injury to the Sheriff to trigger the workers” compensation process. (Exh. 20[12/10/18 RT 83-85.) Worse, LACCD sought to introduce a defense witness on that issue to demonstrate Plaintiff’s daughter was not credible, the Court refused to allow the witness on the grounds that it would introduce the subject of workers’ compensation and was prejudicial. (Exh. 17 [12/13/18 RT 2-10].) Yet, LACCD had already been severely prejudiced by the introduction of the workplace injury/workers’ compensation evidence that favored Plaintiff. The Court even recognized that the testimony relating to Plaintiff's workplace injuries would likely confuse the jury: I’m wondering if the jury is going to be confused about the importance or lack of the importance of Ms. Shirvanyan being injured at work or the cause of the injury. And I feel like it might be a little confusing, especially after Dr. Reading testified today. I'm not quite sure it is clear to the jury that they are not to really consider what caused her injury.... ... I'm just a little concerned that in some of the way the testimony came out today that the cause of the injury was somehow emphasized. And then I’m not quite sure if the jury ... you know, Dr. Reading talked about the pain of her injury, ... You know, we are not talking about if the Defendant was negligent and caused her injury, but yet Dr. Reading talked about the pain of her injury and the emotional distress from that. So how do we deal with that without ... so that they understand that the cause of the injury is not for them to consider? Because I'm not sure it is clear to them. (Exh. 17 [12/11/18 RT 186-188], emphasis added.) LACCD’s defense counsel similarly expressed his concern that Plaintiff’s counsel was trying to confuse the jury by trying to attribute Plaintiff’s permanent disability and Plaintiff’s 1139438.1 18 DEFENDANT LOS ANGELES COMMUNITY COLLEGE DISTRICT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR NEW TRIAL oe 0 N N U t A W N R O R RN RR RN NN NR NB H o m o m o m pm pm pm pm pm U S N R W R N R S Ce ® N S N R W O N m o e 28 MUSICK, PEELER & GARRETT LLP ATTORNEYS AT LAW resulting depression on the workplace injury she suffered even though Dr. Berg's testimony would be insufficient to establish causation in a personal injury action. (Exh. 17 [12/11/18 RT 188:26- 189:16].) LACCD’s counsel was rightfully worried that the jury would find LACCD liable simply for causing Plaintiff’s workplace injury. The concerns about jury confusion turned out to be prescient. The jury reached an excessive verdict that awarded Plaintiff economic damages and non-economic damages that were causally related to her workplace shoulder injury. Those damages were not causally related to the statutory FEHA violations for which LACCD was found liable. Plaintiff’s counsel effectively convinced the jury to hold LACCD liable for economic and non-economic damages caused by her workplace injury on December 18, 2015, which should have been barred by the workers’ compensation exclusivity rule. III. CONCLUSION For all these reasons, the Court should grant LACCD a new trial on both liability and damages. In the alternative, the Court should issue a new trial unless the Plaintiff agrees to a reduction of the award of non-economic damages to the amount that the Court determines in its independent judgment is fair and reasonable based on the evidence. DATED: February 6, 2019 MUSICK, PEELER & GARRETT LLP By: Cheryl A. Orr a Attorneys fqr Dgfendant LOS ANGELES COMMUNITY COLLEGE DISTRICT 1139438.1 19 DEFENDANT LOS ANGELES COMMUNITY COLLEGE DISTRICT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR NEW TRIAL