Devilbiss v. DeMarchi

Filed 7/27/07 Devilbiss v. DeMarchi CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

John DeMarchi and Leonard Devilbiss were involved in a motorcycle accident, which resulted in a severe cut to Devilbisss left thumb. Although Devilbiss had been able to resume work after the accident, at trial he testified that the thumb injury would limit his future earnings. Among other arguments, DeMarchi contends that the jurys award of future lost earnings was not supported by the evidence, in light of Devilbisss return to work. We affirm.

I. BACKGROUND

Devilbiss and DeMarchi were involved in a motorcycle collision in August 2000. Devilbisss left thumb was badly cut.

At trial, Devilbiss testified about his injuries and treatment, including emergency treatment at the scene and later minor surgery to repair a large gash that exposed the bone in his left thumb. The total cost for his medical treatment was $2,621. Devilbiss introduced the medical bills reflecting this treatment, but he did not present expert testimony regarding the reasonableness or necessity of the treatment and charges. In addition, Devilbiss presented no evidence, and his attorney made no claim, that the thumb injury would require him to incur additional medical costs in the future.

Devilbiss is a sheet metal worker who specializes in architectural metal, including copper and gutters, flashings on roofs. For most of the three years prior to the accident, he had been unemployed as a result of an earlier work injury to his back. Several months before the accident, in early 2000, Devilbiss had rejoined the workforce. Three weeks into the new job, however, he was disabled again by an injury to his right thumb. At the time of the motorcycle accident, Devilbiss was still off work as a result of the right thumb injury. At a deposition taken seven months after the motorcycle accident, given in a workers compensation proceeding brought in connection with the right thumb injury, Devilbiss was asked, Do you still have any physical problems as a result of the motorcycle accident? He responded, No.

Ten months after the motorcycle accident, Devilbiss got a new job with a heating, ventilation, and air conditioning company, working as a journeyman sheet metal worker on residential jobs. During the year he worked at this job, his employer was aware that Devilbiss had a problem with one of his thumbswhich one was unclearbut Devilbiss never complained about the injury and was able to perform his job functions. Devilbiss was fired from this job after he was discovered drinking at a bar during working hours.

Despite Devilbisss apparently successful return to work, he testified at trial that, as a result of the left thumb injury from the accident, his ability to perform as a sheet metal worker was hampered. After describing the various types of tools a sheet metal worker uses and the work done with those tools, Devilbiss testified that he could perform those functions for only a limited period of time because he could no longer bend his left thumb at the joint. This limitation caused his hand to tire quickly and become painful when he worked with sheet metal. Devilbiss demonstrated for the jury the manner in which his grip was affected by the injury. A physical therapist confirmed that Devilbiss lost strength in his left hand after the accident.

As a result of this impairment, Devilbiss believed that he could no longer work as a sheet metal worker. He testified that his earning power had been reduced from $60 per hour, the wages of a journeyman sheet metal worker, to perhaps $30 per hour. During closing argument, Devilbisss counsel argued at length that his clients earning power had been, in effect, cut in half, while DeMarchis counsel argued that Devilbisss work after the injury demonstrated that he was still capable of holding a job as a sheet metal worker.[1] The courts jury instructions addressed both past and future lost earnings to Devilbiss.

Notwithstanding these arguments and instructions, the special verdict form submitted to the jury contained no question about future economic damages, asking the jury only to assign damages for [p]ast economic loss consisting of medical expenses and wage loss, [p]ast noneconomic loss, including physical pain [and] mental suffering, and [f]uture noneconomic loss, including physical pain [and] mental suffering. The omission was brought to the attention of the parties and the court by the jury members, who sent a note asking, There is no question that relates to awarding future wage loss for Leonard Devilbiss. Should we be considering this issue? Over DeMarchis objection, the court responded to the jury, You may consider all evidence. Future wage loss, if any, may be separately labeled under economic damages, and Any future economic loss should be labeled as item d. Future economic loss [] $_____ [] Below items a, b, and c.

The jury concluded that DeMarchi was negligent, a finding not challenged on appeal, and awarded Devilbiss $2,618 in past economic loss, $1,500 in past noneconomic loss, and an additional $60,000 under a line handwritten onto the special verdict form as d. Future economic damages consisting of medical expenses and wage loss.

II. DISCUSSION

DeMarchi contends that there was insufficient evidence to support the award of past medical damages and future economic damages and that the trial court erred in permitting the jury to amend the special verdict form.

A. Past Medical Damages

DeMarchi contends that the evidence was insufficient to support the award of Devilbisss past medical damages because no testimony was provided that his medical expenses were reasonable and necessary. We apply the substantial evidence standard of review to a claim of insufficiency of the evidence to support a jurys award of economic damages. (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.)

DeMarchi is correct in contending that a plaintiff must show that any medical expenses for which he or she seeks compensation were necessary, reasonable in amount, and caused by the incident. (E.g., Dimmick v. Alvarez (1961) 196 Cal.App.2d 211, 216.) In order to provide prima facie evidence that medical charges were reasonable and necessary, however, a plaintiff need only present evidence that a bill was rendered for medical services and that this bill was paid. A bill or request for payment is evidence of the amount of the expense, and evidence that the bill was paid is evidence that the charge was reasonable. . . . [Citation.] [Citation.] (Smalley v. Baty (2005) 128 Cal.App.4th 977, 984, italics added by Smalley.) DeMarchi cites no law for his contention that a plaintiff must provide additional, presumably expert, testimony of the reasonableness and necessity of medical treatment to carry this burden.

Devilbiss introduced at trial the medical bills that he was sent for the treatment of his thumb, but his counsel neglected to ask whether those bills were actually paid, thereby failing to take advantage of the evidentiary safe harbor mentioned above. Nonetheless, Devilbiss presented vivid testimony of the severity of the gash to his thumb, which exposed the bone, and described the treatment he received, which included shaving the roughened end of the bone, sewing up the wound, and installing a temporary drainage tube to cope with infection. In light of the uncomplicated nature of the injury and treatment and the relatively modest amount of the medical charges, we conclude that Devilbisss testimony alone provided substantial evidence to support the jurys conclusion that the expenses were reasonable in amount and necessarily incurred.

We note that DeMarchis objection is not based on any genuine concern that some of Devilbisss medical treatment was excessive. Unlike the defendants in the cases on which he relies, Gimbel v. Laramie (1960) 181 Cal.App.2d 77, 81, and Dimmick v. Alvarez, supra, 196 Cal.App.2d at page 216, DeMarchi presented no evidence to suggest that any of Devilbisss treatment actually was unreasonable or unnecessary, nor does he suggest that there was any reason to doubt their necessity and reasonableness. He merely objects that Devilbiss did not provide testimony explicitly addressing these issues. Given the particular circumstances here, we conclude that no such evidence was necessary, for the reasons stated above.

B. Amendment of the Special Verdict Form

Although DeMarchi argues that permitting the jury to amend the special verdict form was beyond the scope of [the jurys] determination, highly improper and against the evidence and CACI 3903, and 3903A, he never explains why amendment of the special verdict form was either unfair or legally improper.

It is clear that the absence of an entry for future lost wages on the special verdict form was simply a mistake on the part of Devilbisss counsel. Both parties tried the case on the assumption that Devilbiss was seeking such damages, and a significant portion of the evidence presented at trial was addressed to this issue. Devilbiss testified at length about the nature and physical demands of his work prior to the accident, demonstrated the manner in which the injury impaired his ability to meet those demands, and described the work he had been able to secure since the accident. DeMarchi presented evidence suggesting that Devilbisss ability to work had not been affected by the injury or that any limitations were the result of a prior work-related injury to his other thumb. In argument, both counsel addressed the issue of future lost wages, and the court instructed on future lost wages. Under these circumstances, the absence of future lost wages from the special verdict form can only have resulted from an oversight by counsel. DeMarchi does not suggest otherwise. Accordingly, there was nothing unfair about permitting the amendment, since it merely conformed the special verdict to the expectations of both parties. DeMarchi claims no prejudice from the courts decision, nor could he, given the fact that the parties both tried and argued the case on the assumption that Devilbiss was seeking future lost wages.

Nor does DeMarchi cite any law prohibiting the courts action. His only citation to authority in contending that the trial court erred is California Rules of Court, rule 3.1580, which states only that a party seeking to have the jury make special findings must submit that request to the court prior to argument. Permitting the amendment was not a clear violation of this rule, since the basic form of the special verdict was presented to the court in a timely manner. Further, rule 3.1580 must be read in concert with Code of Civil Procedure section 625, which allows broad discretion to the trial court in the use of special findings. (Gherman v. Colburn (1977) 72 Cal.App.3d 544, 590.)

In light of this broad discretion to determine the nature of the special findings requested from the jury, we conclude that the trial courts decision to ask the jury to amend the special verdict form was not error. On the contrary, it might well have been an abuse of discretion not to permit the jury to award future lost wages, since the case was tried on exactly that theory.

C. Sufficiency of the Evidence of Future Medical Costs

DeMarchi contends that there was no evidence to support an award of future medical costs. While this is true, it is without legal significance because there is no reason to believe that the jury awarded future medical expenses.

DeMarchis only basis for contending that the jury awarded future medical costs is the fact that the line item added to the special verdict form stated, Future economic damages consisting of medical expenses and wage loss. Although we recognize that this allowed for the possibility of an award of future medical expenses, there is no reason to believe that future medical costs were actually included in the award made. Devilbiss presented no evidence of future medical costs and did not argue that such an award should be made. In its questions to the court, the jury mentioned only future wage loss, not future medical costs.[2] Given the wholesale absence of this issue from the case, there is no reason to believe that the jury awarded such costs.

The text of the jurys entry is easily explained. The printed line item for past economic damages stated, Past economic loss consisting of medical expenses and wage loss. By writing in, Future economic damages consisting of medical expenses and wage loss, the jury appears simply to have made the language of this entry identical to the parallel entry for past economic damages, just as the language in the line items for past and future noneconomic damages in the printed form was identical.

In the two cases cited by DeMarchi in which the court reversed an award of future medical costs, a specific amount had either been proved at trial or awarded separately by the jury. (Mendoza v. Rudolf (1956) 140 Cal.App.2d 633, 637; Holahan v. McGrew (1931) 111 Cal.App. 430, 443.) As described above, that did not occur here. Just as we must affirm a general verdict if there is any sufficient finding to support it (Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 258259), the jurys combined award of future economic damages must stand so long as there is substantial evidence to support a total award of $60,000 in future lost wages.[3]

D. Sufficiency of the Evidence of Future Lost Wages

DeMarchi also contends that there was insufficient evidence to support the award of future lost wages, relying primarily on Devilbisss testimony in the workers compensation deposition that he was not limited by the motorcycle injury and his former employers testimony that he adequately performed work as a sheet metal worker after the accident.

As noted above, we review a jury finding on economic damages under the substantial evidence test. (Lenk v. Total-Western, Inc., supra, 89 Cal.App.4th at p. 968.) A challenge in an appellate court to the sufficiency of the evidence is reviewed under the substantial evidence rule. [Citations.] Where findings of fact are challenged on a civil appeal, we are bound by the elementary, but often overlooked principle of law, that . . . the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court. [Citation.] [Citations.] (Ibid.) Prospective detriment must be so proven that from the proof the jury can reasonably conclude that the claimed detriment is reasonably certain to occur. [Citation.] But . . . it is generally a question for the jury to determine from the evidence whether or not the claimed prospective detriment is reasonably certain to occur. (Khan v. Southern Pac. Co. (1955) 132 Cal.App.2d 410, 416.)

The evidence in support of Devilbisss claim that his work as a journeyman sheet metal worker had been impaired by the left thumb injury consisted largely of his own testimony. Devilbiss showed the jury the tools he was required to use in cutting and working sheet metal and demonstrated the way in which the limited movement of his thumb made use of those tools difficult and painful. He claimed that as a result the work caused his hand to tire easily, preventing him from a full days labor. A physical therapist who had tested his grip before and after the motorcycle accident confirmed that Devilbiss had lost strength in his left hand after the accident.

DeMarchi presented evidence that Devilbiss was not impaired by the accidentDevilbisss own apparent admission that the accident had no lasting effect, the two preexisting injuries that, Devilbiss had claimed in workers compensation cases, already limited his work, and his year of apparently successful labor as a sheet metal worker after the accident. Examined closely, however, this evidence was by no means conclusive. Although Devilbiss responded negatively when asked a few months after his motorcycle accident whether he had any physical problems as a result of the motorcycle accident, Devilbiss could have construed the question as asking merely whether his injury was healed, rather than whether he had a permanent limitation in his strength of grip. There was no follow-up question to clarify his understanding. The testimony of Devilbisss post-accident employer about his job performance was conclusory at best. Because the employer was not asked for a detailed account of Devilbisss work, his testimony did not directly counter Devilbisss claim of weakness, pain, and loss of endurance. Finally, the fact that Devilbiss worked successfully for a year after the accident undercut DeMarchis claim that the prior employment injuries had a lingering impact on Devilbisss ability to work.

In short, the evidence regarding the impact of the motorcycle accident on Devilbisss ability to continue working as a sheet metal worker was in conflict. In arguing that the evidence did not support the jurys verdict, DeMarchi is urging us to substitute our judgment in weighing this evidence for that of the jury. The standard of review necessarily precludes us from such an approach, but this is a particularly inappropriate case for appellate second-guessing. Because much of Devilbisss testimony consisted of live demonstration, the jury was in a position to judge directly, in a manner we cannot on the basis of the cold record, the existence and extent of his claimed impairment.[4] Viewing the evidence in the light most favorable to Devilbiss, giving him the benefit of every reasonable inference, and resolving all conflicts in his favor, as we must, we conclude that his testimony, bolstered by that of the physical therapist, provided substantial evidence to support the jurys limited award of future lost wages.

III. DISPOSITION

The judgment is affirmed.

_________________________

Margulies, J.

We concur:

_________________________

Marchiano, P.J.

_________________________

Swager, J.

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[1] At oral argument on this matter, DeMarchis counsel contended that Devilbisss counsels plea for future lost wages was not made until rebuttal argument, when defense counsel could no longer respond. The contention is not supported by the record. Devilbisss counsel concluded his initial argument by telling the jury, Assuming just for sake of parameters that he was going to work until 65, if he is going to be losing $40,000 a year as a sheet metal worker, . . . you multiply that by the thirteen years that he has left, . . . that would give you a reasonable figure to put the balance back in his life . . . . The defense registered no objection, also contrary to counsels representation at oral argument. In defense counsels closing argument, he responded to the argument, saying, [The fact that Devilbiss was fired for drinking] cuts against his testimony regarding his ongoing limitations, and now they want to put x amount of dollars on this. . . . [] We are asking in this case that you say no.

Defense counsel further claimed at oral argument that a motion in limine had been granted that should have precluded evidence of future damages. Because no motions in limine were included in the record on appeal, we cannot confirm this representation.

[2] Although DeMarchi complains that the trial judge should have answered the jurors question(s) by stating that there was no evidence presented by Devilbiss relating to the need for future medical treatment or costs, there was no need for such a comment because the jurys inquiries never mentioned future medical costs.

[3] For the same reason, we reject DeMarchis claim that the trial court erred in denying his motion for a directed verdict or new trial on these grounds.

[4] It is notable that the award was very limited. Devilbiss testified that his earning capacity was cut in half, from $60 to $30 per hour. If the jury had accepted this testimony, its award compensated Devilbiss for only lost earnings over 2,000 hours, or 50 weeks, of work. This suggests that the jury weighed the testimony and concluded that Devilbiss was significantly less impaired than he claimed.