Eide v. McCully

Filed 7/18/06 Eide v. McCully CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Haim Eide and respondent Donna McCully were involved in a rear-end auto collision. Appellant filed a personal injury action against respondent. At trial, appellant's experts testified that the accident injured his brain, neck and spine. Defense experts did not refute the evidence of brain injury.

The jury returned a special verdict in favor of respondent and found that her negligence was not a substantial factor in causing appellant's injury. We conclude the jury was free to draw its own inferences from the facts and to reject the unrefuted testimony of appellant's experts. We affirm.

FACTS

Appellant is a 44-year-old electrical contractor and the owner of Eide Electric Company, Inc. On July 12, 2002, he was involved in a rear-end collision on Highway 101 in Santa Barbara. Appellant was driving a utility van and respondent Donna McCully was behind him in a Honda Accord.

The traffic was bumper-to-bumper and respondent was driving less than five miles per hour. The van stopped suddenly and respondent struck it, but did not see it move. Highway patrol officers directed both cars off the freeway, where the parties exchanged information. Respondent saw that her license plate was bent and there was a "smudge dent" mark on her front bumper. She did not see any damage on appellant's van.

Appellant filed a personal injury action against respondent, alleging that he had been harmed in the collision, but did not specify the type of injury he sustained. Prior to trial, the parties stipulated that respondent was negligent in causing the accident, leaving only the issues of causation and damage to be tried. During trial, appellant did not take the stand, but his counsel "introduced" him to the jury immediately before the close of appellant's case.

Symptoms of Brain Injury

Appellant's wife, Karen Eide, testified that prior to the accident she was only peripherally involved in the business. Since then appellant has lost his motivation and ability to concentrate and she has taken over the business. He cannot remember to go to his appointments, return calls to customers or schedule employees to go to jobs. Karen now orders all the materials for the business and performs the estimates. When they bill their customers, it can take up to 30 minutes to write a single invoice because appellant is so easily distracted.

Appellant calls Karen numerous times during the day but then cannot remember why he called. He loses track of time and is often angry with Karen for reminding him what to do. Before the accident he had an outgoing personality and was very independent, but now has become withdrawn. He no longer likes to read and does not want to manage the business's finances because they are too difficult to understand.

On cross-examination, Karen was unable to answer questions concerning the business's gross profits, their salaries, operating expenses and net profit. She believed that worker's compensation costs have decreased and their labor costs have increased.

A general contractor who is also appellant's personal friend testified that appellant always worked quickly and was unusually thorough. Now he works very slowly. He watches his employees, but does not participate in the work. He takes long lunches, often misses obvious problems and easily loses his temper. Prior to the accident, appellant was very charismatic and people were drawn to him. Now he is more distant and has difficulty maintaining conversation because he is easily distracted. Another friend testified to appellant's lack of concentration and inability to focus since the accident.

Appellant's Experts

1) Dr. Chadwick Smith

Dr. Chadwick Smith is an orthopedic surgeon and biomechanical specialist who is appellant's treating physician. Dr. Smith performed a physical examination and ordered laboratory tests and an MRI (magnetic resonance imaging) of the spinal axis, but did not order an MRI of the brain.

Dr. Smith concluded that appellant has a preexisting condition of degenerative disk disease. His spine was markedly degenerated and appeared to be the spine of an 80-year old man. Prior to the accident he appeared to be "asymptomatic," meaning he had no symptoms of the disease.

It was Dr. Smith's opinion that the collision caused an injury to the spinal axis and occipital area of the head and accelerated appellant's degenerative disk disease and arthritis in his spine. Dr. Smith believed that appellant's disk degeneration is too extensive to be corrected with surgery. His prognosis is poor and the only treatments available are injections, physical therapy and painkillers.

Dr. Smith testified that the biomechanical description of appellant's injury is known as whiplash, or "coup/contrecoup," in which the brain strikes the skull after the body moves forward, and strikes the skull a second time as the body is forced backward. Although appellant did not lose consciousness or suffer a skull fracture, Dr. Smith believed he had sustained a brain injury at the time of the accident because he suffered headaches, neck spasms and became forgetful. He advised appellant to see a neurologist or neuropsychologist and a doctor specializing in the management of chronic pain.

On cross-examination, Dr. Smith admitted he did not know the speed of respondent's car at the time of the collision, whether appellant was wearing a seatbelt, the force applied to appellant's vehicle at the time of collision, or whether his head was facing forward. Dr. Smith did not know if the car had a headrest and testified that appellant did not strike any part of his body inside the car nor did he strike his head against the seat. He acknowledged that, if neither appellant's body nor the car moved, and there was no impact, then there would be no injury.

2) Dr. William A. Spindell

Dr. William Spindell is a neuropsychologist. He holds a Ph.D. in psychology and studies the relationship between the brain and behavior. He interviewed appellant and his wife and performed various psychological, cognitive and behavioral tests, which measured appellant's memory, intelligence and brain function.

Based on the test results, Dr. Spindell diagnosed appellant as suffering from a traumatic brain injury. He concluded that the injury was to the frontal lobe of the brain, as demonstrated by appellant's short temper, poor memory, inability to maintain attention and his slowed response to his workload. Appellant also exhibited damage to his sense of taste and smell.

Dr. Spindell testified that it is not necessary for a person to strike his head or lose consciousness to suffer a brain injury. Such an injury can be caused by a whiplash. He believed appellant's injuries resulted from a coup/contrecoup impact in the collision and has reduced appellant's cognitive functioning by 30 percent.

On cross-examination, Dr. Spindell testified that appellant had been in a second rear-end collision before seeking the neuropsychological evaluation. The first accident occurred in July 2002 and the second occurred in February 2004. Dr. Spindell did not elicit much information about the second accident because appellant indicated that his complaints arose from the first collision.

Respondent's Experts

1) Dr. Steven Nagelberg

Dr. Steven Nagelberg is an orthopedic surgeon who regularly performs spinal surgery. He examined appellant and reviewed the record of two chiropractors, Dr. Steinberg and Dr. Hiler, and the report of Dr. Chadwick Smith, appellant's orthopedic surgeon. Dr. Nagelberg also reviewed x-ray records and an MRI report.

Dr. Nagelberg noted that appellant suffered from a pre-existing condition of degenerative disk disease. He concluded that appellant had sustained a mild to moderate cervical and lumbar strain in the collision, but no other injury. According to the records of Chiropractor Hiler, appellant's low back complaints had been resolved and his neck pain was improving.

2) Dr. Stephen L. Gabriel Rothman

Dr. Gabriel Rothman is a neuroradiologist who specializes in the evaluation of the imaging of the spine and brain. He reviewed the MRI scans of appellant's neck and low back as well as regular x-rays. The films revealed that appellant suffers from degenerative disk disease. It was Dr. Rothman's opinion that the condition was long-standing rather than the result of a recent trauma.

Surveillance Video and Special Verdict

A private investigator testified that his company had videotaped appellant on the job for six weeks in 2004. During trial, respondent's counsel played for the jury two surveillance DVD's depicting appellant standing, stooping, bending, directing employees, and talking on his cell phone. We granted respondent's request to transmit the DVD's to this court.

At the close of trial the jury was given a special verdict form. It included the stipulation that respondent was negligent and posed the following question: "1. Was Donna McCully's negligence a substantial factor in causing harm to Haime Eide?" The jury answered, "No." The trial court polled the jury, and its verdict was unanimous.

New Trial Motion

Appellant filed a motion for a new trial, JNOV (judgment notwithstanding the verdict) and moved to vacate the judgment. He argued that he provided experts and lay witnesses to establish that he had suffered a brain injury yet respondent presented no evidence at all to refute this evidence. He also claimed that the surveillance videos were limited to his neck and spinal injury claims, but did not reflect evidence of his brain injury. Therefore, the jury's verdict was not supported by substantial evidence.

The court addressed appellant's counsel, indicating that since appellant did not testify there was no direct evidence of causation, thus nothing in the record to support the experts' conclusion. Counsel argued that the testimony of the lay witnesses as to appellant's changed behavior was sufficient to establish causation. The court denied the motion, stating, " . . . to the extent that the Court is sitting as a 13th juror in these types of matters, it is the Court's view that the verdict of the jury is supported by adequate evidence in the record."

Appellant appeals from the judgment on the special verdict and the post-trial order denying his motion for a new trial and JNOV.

DISCUSSION

When determining whether there exists substantial evidence to support the jury's finding, we view all evidence in the light most favorable to the judgment, drawing every reasonable inference and resolving every conflict to support the judgment. (Jonkey v. Carignan Const. Co. (2006) 139 Cal.App.4th 20, 25.) Even where the evidence is uncontradicted, if two or more different inferences can reasonably be drawn from the evidence we may not substitute our own inferences or deductions for those of the trier of fact. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630.)

Appellant raises the same arguments on appeal that he made in his new trial motion. We briefly summarize the expert testimony. Appellant's experts (Dr. Smith and Dr. Spindell) testified that the collision caused injuries to appellant's neck, spine and brain. One of respondent's experts, Dr. Rothman, testified that appellant suffers from degenerative disk disease, but offered no other opinion. Respondent's second expert, Dr. Nagelberg, testified that the collision caused a strain to appellant's neck and back, which was largely resolved. He made no mention of a brain injury.

Based on this testimony, appellant argues that his and respondent's experts "agree" that the accident caused him injury. Moreover, he claims that he has established the existence of a brain injury because neither of respondent's experts refuted this claim.

Appellant's argument is meritless because a jury is free to reject uncontradicted expert opinion and draw its own inferences from the facts. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890; Kennemur v. State of California (1982) 133 Cal.App.3d 907, 923; Lubetzky v. Friedman (1991) 228 Cal.App.3d 35, 40.) A jury is not required to accept the opinions expressed by medical experts even where no opposing opinion is offered. (Ortzman v. Van Der Waal (1952) 114 Cal.App.2d 167, 170-172.) The sole exception to this rule is that a trier of fact must accept uncontradicted expert testimony as conclusive in professional negligence cases where the duty of care must be established by expert testimony. (Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 632.) That is not the case here.

Appellant claims that the appellate court authorities are inconsistent with California Supreme Court decisions and give the jury far too much discretion to disregard uncontradicted expert testimony. He suggests we formulate a rule to limit "the free form power that the Court of Appeals cases seem to direct." Appellant is in error. The appellate cases on this subject are entirely consistent with California Supreme Court precedent. We decline appellant's invitation to formulate a new rule that departs from established law.

Appellant contends that the jury acted arbitrarily and their verdict is a result of the "personal or prejudicial predilection of the jury members." Appellant correctly argues that uncontroverted expert testimony may be rejected by the trier of fact, so long as the rejection is not arbitrary. (Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 632; Conservatorship of McKeown (1994) 25 Cal.App.4th 502, 509.) There are several possible explanations for the jury's findings. It could easily have found that appellant had not suffered harm or that there was no causation. Perhaps it was influenced by the surveillance video or the fact that appellant did not testify. The jury had ample evidence from which to conclude that appellant's back and neck injuries were not caused by the impact of respondent's vehicle.

Appellant did not offer expert testimony from a neurologist to establish the presence of a brain injury. Nor was the testimony of appellant's wife and friends regarding memory loss, cognitive deficits and personality change sufficient to establish the existence of such an injury. The jury's findings were supported by substantial evidence. The trial court properly denied appellant's motion for a new trial.

The judgment is affirmed. Costs on appeal are awarded to respondent.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

William O. Liebmann, Judge

Superior Court County of Ventura

______________________________

Law Offices of Steven R. Young and Steven R. Young for Plaintiff and Appellant.

Michael Maguire & Associates and Kathryn Albarian for Defendant and Respondent.

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