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Nguyen v. Vo

May 31, 2018
G055256 (Cal. Ct. App. May. 31, 2018)




KIM NGUYEN, Plaintiff and Appellant, v. ANNIE N. VO, Defendant and Respondent.

DesJardins & Panitz and Michael DesJardins for Plaintiff and Appellant. Brown, Bonn & Friedman, Elizabeth C. Bonn and Kristina A. Hoban for Defendant and Respondent.


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2015-00796665) OPINION Appeal from a judgment of the Superior Court of Orange County, Linda S. Marks, Judge. Reversed. DesJardins & Panitz and Michael DesJardins for Plaintiff and Appellant. Brown, Bonn & Friedman, Elizabeth C. Bonn and Kristina A. Hoban for Defendant and Respondent.

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This negligence case arises out of an automobile accident in which defendant Annie N. Vo rear-ended plaintiff Kim Nguyen at a speed of 25 to 30 miles per hour. Defendant admitted to being negligent, but disputed the scope of injuries sustained by plaintiff as a result of the accident and the amount of damages to which she should be entitled. Plaintiff appeals from a judgment in defendant's favor after a jury found none of plaintiff's injuries resulted from the accident. In rendering its verdict, the jury not only rejected the testimony of plaintiff's experts, but also implicitly rejected the opinion of defendant's medical expert that plaintiff "had an injury" from the accident which necessitated some treatment and would have left her out of work for a maximum of three months. Given the uncontradicted testimony concerning causation in the record, this is that rare case in which we must conclude the evidence demonstrated, as a matter of law, the accident was a substantial factor in causing at least some of plaintiff's injuries. There was, in fact, no contrary evidence on this narrow issue. Accordingly, it was error for the jury to conclude otherwise, and we reverse the judgment.


After being in a car accident in which defendant rear-ended plaintiff as plaintiff slowed to turn into a driveway, plaintiff sued defendant for damages due to alleged personal injuries. Prior to trial, defendant admitted she was negligent and therefore responsible for the accident. She, however, disputed whether her negligence proximately caused all of plaintiff's purported injuries and the associated damages, and whether the damages claimed were reasonable and necessary. These disputed issues were presented to a jury. A. Plaintiff's Case

Plaintiff testified concerning the accident and both the short and long term effects it had on her. Prior to the loud noise and "boom" of the accident, plaintiff did not hear any squealing tires or other similar sound. On impact, her body was pushed forward and her face hit the steering wheel. She explained that after the initial impact, her car was pushed up onto a center divider where it collided with a palm tree and came to a stop. Plaintiff's body was jostled around, with different body parts bouncing off various points inside the car. She testified the amount of pain she experienced, on a scale of one to ten, was between six and nine, depending on the body part.

Once plaintiff's car came to a stop, she got out and spoke with defendant. She then called her friend, Dan Milton. Plaintiff testified that she called Mr. Milton because she was in "so much in pain" and "needed help." She spoke to the police when they arrived on scene and arranged for her car to be towed to her house.

Upon arriving at her house, plaintiff claimed she "felt a lot of pain" in her neck, chest, back and hip. Mr. Milton suggested she go to the emergency room. The two went, along with plaintiff's daughter. Plaintiff testified she continued to feel "pulling" and "pulsing" pain while in transit.

At the emergency room, plaintiff underwent a CT scan. After being evaluated, she was given morphine due to her pain. She spent approximately four to five hours in the emergency room and was later billed $6,550 for her visit.

Plaintiff awoke the next day to "lots of pain [in her] chest area, [her] back, and [her] neck." She was bruised, had a chipped tooth, and parts of her body were swollen. Medicine given to her by the emergency room doctors eased her pain, but the pain returned when each dose wore off.

Plaintiff testified the pain persisted in the days and months to follow. She went to the dentist to fix her tooth, sought treatment from two chiropractors, had an MRI, saw a pain management doctor, along with various other medical doctors, all in hopes of discovering why she was still in significant pain and seemingly not getting any better.

At the time of trial, more than two years after the accident, plaintiff testified her pain had not subsided, and it was actually worse than the day after the accident. She described the changes in her daily life since the accident, including her inability to drive, and explained why she was no longer able to work.

Various non-expert witnesses testified concerning their observations of plaintiff pre- and post-accident. Plaintiff's daughter and sister testified about the changes they observed in plaintiff's daily routine and physical activities after the accident. Mr. Milton detailed his knowledge of her condition prior to the accident when she worked with him at a physical therapy clinic, as well as his interactions with her when he arrived at the scene of the accident. Regarding the latter, he said plaintiff complained of "aching and . . . acute soreness in her shoulder [and] her hip . . . [,] and her back and neck were in spasm."

Dr. Ricky Sarkisian, a vocational rehabilitation expert, explained his evaluation of plaintiff and rendered opinions concerning her employability and earning potential. Acknowledging plaintiff was unemployed at the time of the accident because the physical therapy business she worked for had closed, he opined that "it would have taken her no more than six months to find a job" if the accident had not occurred. In contrast, he believed she was "not employable" post-accident because "she [had] constant pain, and . . . [a] lack of stamina for any sustained activity."

Dr. Thieu Dang, one of the chiropractors who saw plaintiff after the accident, testified about his treatment and plaintiff's physical condition. From his perspective, when she originally came to him about one month after the accident, "she was in a lot of pain, and mentally she was pretty much in distress." He performed an initial evaluation, from which he concluded her pain was nerve pain, not muscular pain. Dr. Dang treated plaintiff over the course of the next couple of weeks. Her condition did not improve, so he recommended she have an MRI done of her neck and lower back. The MRI revealed permanent injuries—cervical disk bulges, a torn disk and a slippage of one vertebrae. Based on those results, the doctor testified concerning plaintiff's treatment options, from the most conservative (chiropractic treatment) to the most invasive (surgery), and indicated he referred her to two specialists for evaluation—an orthopedic surgeon and a pain management specialist.

Plaintiff's medical expert, Dr. David Payne, rendered opinions based on his expertise as an orthopedic and spinal surgeon. After meeting with plaintiff and reviewing her records, he diagnosed her with the following physical issues, among others: (1) a spinal fracture, resulting from specific trauma; (2) a slipped vertebrae; (3) three disk herniations in her neck; and (4) weakness in her arms and hands. While Dr. Payne acknowledged that plaintiff's historical records showed she had a preexisting disk herniation, he believed it got larger after the accident. He also indicated that, even assuming the existence of pre-existing injuries, it was his opinion they were exacerbated by the accident, leading him to consider them "new injur[ies]." Because conservative treatment measures failed to relieve plaintiff's symptoms, Dr. Payne said he would recommend neck and back surgery because "she most likely will not get better without [it]."

Using Dr. Payne's treatment recommendations, other experts testified on plaintiff's behalf concerning the costs of anticipated future medical treatment and care. The jury also heard plaintiff's experts testify about economic damages (e.g., lost earnings and fringe benefits). B. Defendant's Case

Defendant testified she was going 25 to 30 miles per hour when she hit the rear of plaintiff's car. Both women got out of their cars to survey the damage, and it appeared to defendant that plaintiff was walking normally. According to defendant, plaintiff did not mention any pain or complain of any injuries while at the scene of the accident.

Dr. Thomas Grogan, an orthopedic surgeon and defendant's medical expert, testified to matters similar to those discussed by Dr. Payne and rendered his own opinions. He concluded many of plaintiff's claimed injuries were not caused by the accident and stated they were unrelated pre-existing injuries. He opined that any worsening of those injuries was due to a longstanding chronic degenerative condition she had prior to the accident. Nonetheless, Dr. Grogan agreed that plaintiff "had an injury" from the accident. He stated it was a soft-tissue injury involving a contusion to the upper right quadrant of her chest, as well as strained or sprained neck and back ligaments. In his opinion, it would have taken her approximately six to eight weeks to return to her pre-accident status. Therefore, Dr. Grogan believed most, but again not all, of her post-accident treatment was unrelated to the accident.

Due to the difference in opinion between plaintiff's medical expert (Dr. Payne) and defendant's medical expert (Dr. Grogan), the remainder of defendant's experts who testified concerning various issues (e.g., loss in earnings, costs of future medical treatment and care) provided alternative evaluations. One relied on Dr. Grogan's opinion—that plaintiff would have recovered from her accident-related injuries within six to eight weeks—and the other relied on Dr. Payne's opinion—that the accident caused plaintiff to suffer acute injuries necessitating spinal surgery and long-term care. C. Closing Arguments and the Jury Verdict

In closing, plaintiff's counsel argued to the jury it should find that all of her claimed injuries resulted from the accident, and that a reasonable economic damage award would be approximately $1 million. He also urged the jury to award non-economic damages for pain and suffering, inconvenience, and the loss of enjoyment of life.

Defense counsel took a contrary, but not completely opposite position. She reminded the jury that responsibility for the accident was not disputed—defendant was responsible. In addition, she acknowledged Dr. Grogan's testimony which confirmed plaintiff incurred a soft tissue injury from the accident, and she agreed the jury should decide the amount of damages that would fairly compensate plaintiff for those injuries (including pain and suffering). Where the defense departed from plaintiff's position was as to all of the other claimed injuries and the associated amounts of damages. It was defendant's viewpoint that they were a result of plaintiff's pre-existing degenerative conditions and not a result of the accident.

The jury returned a verdict in defendant's favor. It found defendant was negligent, but it concluded her negligence was not a substantial factor in causing any harm whatsoever to plaintiff. Thus, the jury never reached the question of what amount of economic and noneconomic damages would fairly compensate plaintiff for her injuries. The court entered judgment accordingly. Plaintiff timely appealed.


Plaintiff contends it was error for the jury to find the accident did not cause her any harm given the uncontested and uncontradicted evidence that she at least suffered some soft tissue injuries. Defendant claims the evidence was disputed—her expert only stated plaintiff "could" have sustained soft tissue injuries from the accident—and, therefore, we must defer to the jury's balancing of the evidence. Based on the testimony in the record before us, we agree with plaintiff.

When a party challenges a verdict based on sufficiency of the evidence, including a jury's finding on the issue of causation, our reviewing power normally "'begins and ends with the determination as to whether, on the whole record, there is substantial evidence, contradicted or uncontradicted, that will support the [verdict]."' (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 732 (Eriksson); Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 695 [causation].) Under that test, we must always view the evidence in the light most favorable to the judgment and presume in support of it the existence of every fact the trier could reasonably deduce from the evidence, resolving all conflicts in favor of the judgment. (Jonkey v. Carignan Construction Co. (2006) 139 Cal.App.4th 20, 24.) If the circumstances reasonably support the trier of fact's findings, reversal of the judgment is not warranted even if another conclusion could have been reached through alternative inferences. (Ibid.; Piedra v. Dugan (2004) 123 Cal.App.4th 1483, 1489.)

Such a standard may be misleading, however, when a judgment is the result of a party's failure to satisfy its burden of proof on an issue. (In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) "Thus, '[w]hen the trier of fact has expressly or implicitly concluded that the party with the burden of proof failed to carry that burden and that party appeals . . . the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.]'" (Eriksson, supra, 233 Cal.App.4th at p. 733.) "Specifically, the question becomes whether the appellant's evidence was (1) 'uncontradicted and unimpeached' and (2) 'of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding."' (In re I.W., supra, 180 Cal.App.4th at p. 1528; see Eriksson, supra, 233 Cal.App.4th at p. 733; Dreyer's Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838; Valero v. Board of Retirement of Tulare County Employees' Assn. (2012) 205 Cal.App.4th 960, 966.)

Consider, for example, a case where the plaintiff bears the burden of proving all elements of her claim by a preponderance of the evidence. The plaintiff presents evidence, the defendant presents no evidence, and the jury returns a verdict for the defendant. If plaintiff appealed and the reviewing court employed a sufficiency of the evidence standard, there might not be substantial evidence to support a judgment in the defendant's favor given the lack of any evidence presented by the defendant. Yet if the court, after applying the appropriate standard of review, became convinced that plaintiff had failed to meet its burden of proof, the judgment should nonetheless be affirmed. --------

Here, the trial court instructed the jury concerning causation and the showing required to establish it. Plaintiff bore the burden of proving defendant's negligence was a "substantial factor" in causing her harm. A substantial factor is one "that a reasonable person would consider to have contributed to the harm." It needs to be more than a remote or trivial factor, but not necessarily the only cause of the harm.

The jury, as evidenced by its verdict, apparently had credibility concerns about the plaintiff's testimony and that of her experts and, therefore, found plaintiff failed to establish by a preponderance of the evidence that the accident was a substantial factor in causing her claimed neck and back injuries. The jury had every right to make its credibility determinations. What it could not do under the circumstances present here was that which it apparently did: ignore the uncontradicted and uncontested evidence which showed the accident caused plaintiff to suffer some soft tissue injuries which required medical evaluation and treatment. On the record before us, though the issue requires a subtle analysis, rejection of that agreed-upon causation evidence was arbitrary. (See Krause v. Apodaca (1960) 186 Cal.App.2d 413, 417 [jury may not arbitrarily disregard uncontradicted expert opinion testimony].)

On the day of the accident, plaintiff went to the emergency complaining of pain and soreness. The doctors ran tests, including a CT scan, gave her some medication, and sent her home. Thereafter, she repaired a tooth chipped in the accident, obtained treatment from two chiropractors, had an MRI, saw a pain management doctor, and saw various other medical doctors. One of the chiropractors testified concerning his evaluation and treatment of plaintiff, which began one month after the accident. In addition, Dr. Payne (medical expert) and Dr. Sarkisian (vocational expert) provided their opinions regarding plaintiff's short-term and long-term prognosis, which were based on a review of plaintiff's records and their in-person meetings with her. Dr. Payne also opined on the causation issue, stating that the accident caused plaintiff to sustain new injuries.

Had plaintiff's evidence been the sole evidence presented in this case, affirmance of the judgment would likely now be required. (See Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 632 [jury free to reject and disregard testimony, expert or otherwise, so long as it does not do so arbitrarily]; Lubetzky v. Friedman (1991) 228 Cal.App.3d 35, 40.) But it was not. Defendant's own medical expert confirmed that plaintiff had in fact suffered certain injuries as a result of the accident and that certain treatment she underwent was reasonable. On this narrow issue, there was no contrary evidence or dispute.

Specifically, when defendant's counsel asked Dr. Grogan for his opinion concerning "what injuries [plaintiff] sustained as a result of the accident[,]" he responded as follows: "My opinion is she had an injury. It's a soft-tissue injury. She certainly had a contusion to her chest, her right upper quadrant, which is right below where her -- the ribs are. She had a strained or strained ligaments involving her neck and probably her lumbar spine as well, and those were her primary injuries." When asked how long it would have taken plaintiff to recover from those injuries, Dr. Grogan opined: "somewhere between six and eight weeks, maybe as long as three months, I believe to return to her preinjury status." These opinions, like Dr. Payne's, were based on a review of plaintiff's medical records and an in-person meeting with her.

When questioned about the reasonableness of plaintiff's past medical treatment, although Dr. Grogan disputed the reasonableness of the cost of some of the treatment plaintiff underwent during the first three months after the accident, he did not contest the reasonableness of the treatment itself. This included, at minimum, the emergency room visit, the CT scans and evaluation of the scans, "25 or 30 visits" to the chiropractor, the MRI of her cervical spine, and the evaluation by a pain management specialist.

Given that the medical experts on both sides agreed plaintiff sustained some injuries as a result of the accident, and that there was no contrary evidence presented, we must find the jury acted arbitrarily in reaching its verdict. While it would have been the jury's prerogative to determine which, if any, of the disputed injuries resulted from the accident (e.g., preexisting degenerative conditions versus aggravated preexisting conditions), the evidence left no room for a conclusion that the soft tissue injuries confirmed by Dr. Grogan were not caused by the accident. (See Krause, supra, 186 Cal.App.2d at p. 417; Eriksson, supra, 233 Cal.App.4th at pp. 732-733; In re I.W., supra, 180 Cal.App.4th at p. 1528.)


The judgment is reversed. Plaintiff is entitled to her cost on appeal.


Summaries of

Nguyen v. Vo

May 31, 2018
G055256 (Cal. Ct. App. May. 31, 2018)
Case details for

Nguyen v. Vo

Case Details

Full title:KIM NGUYEN, Plaintiff and Appellant, v. ANNIE N. VO, Defendant and…


Date published: May 31, 2018


G055256 (Cal. Ct. App. May. 31, 2018)