Jones v. Winter





Filed 3/9/11 Jones v. Winter CA2/2







NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

MARY JONES, Plaintiff and Appellant, v. SUSAN WINTER et al., Defendants and Respondents.

B218717 (Los Angeles County Super. Ct. No. SC098548)

APPEAL from a judgment of the Superior Court of Los Angeles County.
Craig D. Karlan, Judge. Affirmed.

Mary Jones, in pro. per., for Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith, Ernest Slome, Jeffry A. Miller, Craig L. Dunkin and Matthew B. Stucky for Defendants and Respondents.

_________________________



Mary Jones (Jones) sued respondents Susan Winter (Winter) and Howard Industries, Inc. (Howard) and sought millions of dollars in damages for personal injury arising out of a motor vehicle accident. Though Jones prevailed at trial, the jury awarded her only $7,595.36. She appeals and requests that we reverse the judgment and remand the case for a new trial in a new venue due to myriad errors. She also challenges an order that she pay $495 in sanctions for failing to attend an independent medical examination. We find no error and affirm.
FACTS
Jones tripped and fell at work on January 21, 2005. As a result, she lost substantial use of her left arm and hand and suffered a variety of problems, including pain, memory loss and disorientation. From that point on, Jones never went back to work. Dr. Philip Sobol was the primary treating physician for her work related injuries.[1] An MRI of her neck on March 7, 2005, revealed disk bulges, bone spurs, areas of narrowing on the spinal canal, and a small degree of compression of the spinal cord. On September 4, 2005, Winter rear-ended a car being driven by Jones. Dr. Sujal Mandavia examined Jones and concluded that she suffered a cervical strain, which is a soft tissue injury. Soon after the accident, Jones began treating with Dr. Jon Greenfield. She had an MRI on October 14, 2005. It showed the same abnormalities as the March 7, 2005, MRI. Dr. Sobol saw Jones and reviewed her records. He issued a report in 2007 and opined that the motor vehicle accident had not caused any increase in her disability for purposes of her workers' compensation claim.
Jones sued Winter and her employer, Howard, for negligence and claimed that the motor vehicle accident exacerbated injuries from her trip and fall and caused new injuries. In her statement of damages, Jones sought over $40 million. When she refused to appear for an independent medical examination, Winter and Howard filed a motion to compel. The trial court granted the motion and sanctioned Jones $495.
Prior to trial, Jones requested the use of a jury questionnaire. Her request was denied.
The defense conceded negligence, so the trial focused on issues of causation and damages. Dr. Tony Feuerman was called as the defense expert. He compared the MRIs from March 7, 2005, and October 14, 2005, and concluded that both indicated the same degenerative abnormalities.[2] In his opinion, all Jones suffered in the motor vehicle accident was a soft tissue injury. Such an injury normally gets better with time, physical therapy and medication. Her overall condition and disability would not be any different absent the rear-end collision. When Jones called her expert, Dr. Greenfield, and referred to the two MRIs, counsel for Winter and Howard objected. The trial court precluded Dr. Greenfield from comparing the two MRIs on the grounds that he specifically testified in his deposition that he had not done a comparison and therefore could not determine whether Jones's trauma was caused by the slip and fall or the motor vehicle accident. On cross-examination, Dr. Greenfield admitted that if the two MRIs revealed the same injuries, then he could only conclude that those injuries were caused by a trauma preceding the motor vehicle accident.
During a break in Dr. Greenfield's testimony, juror No. 12 sent a note to the trial court and stated her belief that Dr. Greenfield had been involved in a medical malpractice action filed by her husband. She said she could remember very little but thought she should alert the trial court. Jones moved to strike juror No. 12 for cause on the grounds that she could not remain unbiased. The trial court questioned juror No. 12 and concluded that there was no reason to believe that juror No. 12 was biased and should not continue to serve on the case.
Dr. Mandavia testified that he diagnosed Jones with a soft tissue injury after the motor vehicle accident. Dr. Sobol testified that the motor vehicle accident caused Jones to suffer a soft tissue injury, which made her neck stiff. He believed that she fully recovered from that stiffness. The March 7, 2005, MRI report was entered into evidence during Dr. Sobol's testimony. No attempt was made to enter the actual film into evidence.
The parties stipulated to admit into evidence all medical records about which doctors had testified.
Jones proposed a jury instruction reciting the Civil Code section 3333[3] standard for damages. She also proposed a modified version of CACI No. 3905A that contained a laundry list of 12 different types of damages Jones claimed to have suffered. The trial court refused the proposed instructions. It opted instead to instruct the jury pursuant to CACI No. 3901.
During closing argument, Jones read from reports of the two MRIs and urged the jury to compare them and conclude that they proved that the motor vehicle accident caused injuries that were more severe and different from her trip and fall injuries. Pursuant to a special verdict, the jury awarded Jones $6,000 in medical expenses, $595.36 for other past economic loss, and $1,000 for physical pain and mental suffering.
This timely appeal followed.
DISCUSSION
Jones seeks reversal because juror No. 12 was guilty of misconduct; the misconduct would have been prevented if the trial court had allowed the jury questionnaire; the trial court should have admitted the two MRIs into evidence; the case proceeded as a workers' compensation trial; the court clerk failed to give the jury both MRIs; the verdict was not supported by the evidence; the trial court unfairly precluded certain evidence of damages; the trial court denied a proposed jury instruction based on Civil Code section 3333; the trial court denied the jury instruction Jones proposed pursuant to CACI No. 3905A; the trial court rushed the jurors; Jones was denied the right to examine Dr. Feuerman regarding his past; the trial court should have allowed Dr. Greenfield to offer an opinion about the two MRIs and the cause of Jones's injuries; the trial court ordered sanctions which do not exist; and irregularities in the case made a just verdict impossible.
We turn to these issues below.
I. Juror misconduct; the jury questionnaire.
Jones argues that her motion to strike juror No. 12 should have been granted based on People v. Rodriguez (1999) 20 Cal.4th 1 (Rodriguez). But Rodriguez is silent on the issue of juror misconduct and provides no guidance. Thus, Jones did not cite relevant case law in her opening brief. We note that â€