Kim v. Bell Cab

Filed 4/26/07 Kim v. Bell Cab CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, Susan Bryant-Deason, Judge. Affirmed.

McKay, Byrne & Graham, Paul A. DeLorimier and Nancy A. Ramsey for Defendants and Appellants Bell Cab Company, Inc. and Deuk Young Lee.

Law Offices of Richard D. Hoffman & Richard D. Hoffman; Donna Bader for Plaintiff and Respondent Nam Juk Kim.

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Bell Cab Company, Inc. and Deuk Young Lee appeal from the judgment entered in favor of Nam Juk Kim following a jury trial in Kims action for personal injuries suffered when her hand was caught in the door of Lees taxi cab. Bell Cab and Lee argue the trial court erroneously excluded impeachment evidence they sought to introduce through their expert witness. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Accident

On March 5, 2003 Lee, a taxi cab driver for Bell Cab, accidentally closed the cabs passenger door on four fingers of then 83-year-old Kims right hand as Lee was assisting her into the cab. Kim unsuccessfully tried to pull her fingers out of the door. After Kim screamed, Lee opened the door and saw Kims ring finger had been injured.

Lee drove Kim to the hospital, where her finger was sutured. Lee then drove Kim home.

The following day Kims daughter, Jung Suk Kim Merten, took Kim back to the hospital because she was complaining about pain in her right arm, left and right shoulders and chest. Kim was admitted to the hospital and stayed overnight because of the doctors concern about her chest pain; Kims medical history includes coronary heart disease, hypertension and high cholesterol.

2. Kims Examination by Dr. Greenfield; the Complaint

Dr. Jon Greenfield, an orthopedic surgeon, examined Kim on July 16, 2003 because she was complaining of pain in her right shoulder and hand.[1] Greenfields initial assessment was that Kim had scar tissue and a nerve contusion in her right hand and degenerative joint disease in her right shoulder. After reviewing a subsequent MRI of Kims right shoulder, Greenfield determined she had a complete tear in her right rotator cuff. Greenfield examined Kim again on November 12, 2003; she was complaining of, among other things, pain and numbness in both shoulders.

On July 9, 2004 Kim filed a complaint for negligence against Bell Cab and Lee. 3. The Trial

Trial commenced on April 10, 2005 limited to determining the extent of Kims injuries and damages. Bell Cab and Lee had stipulated Lee was negligent when he closed the door on Kims hand and his negligence caused the injury to her finger. Bell Cab and Lee disputed the accident caused Kims torn right rotator cuff, claiming it was a preexisting condition.

a. Kims evidence the accident caused the tear in her right rotator cuff

Kim testified that, prior to the accident, she had not had substantial problems with her right shoulder and denied complaining of right shoulder pain to her former primary care physician, Dr. Joon Ho Chung, who had retired by the time of trial.

Merten testified she had never noticed Kim had any problems with her right shoulder nor had Kim complained of right shoulder pain prior to the accident.

Dr. Greenfield, called as an expert witness by Kim, opined her right rotator cuff was torn when she attempted to pull her fingers out of the cabs door. Although Greenfield acknowledged Kims right rotator cuff was probably not perfect prior to the accident due to her age, he did not believe the tear was a preexisting condition because the motion Kim made when she tried to pull her fingers out of the door is a known mechanism of injury causing rotator cuff tears and Kim did not have symptoms of shoulder pain prior to the accident or a history of ongoing shoulder problems. Kim had told Greenfield, who did not review any of Kims medical records prior to the date she was injured, she had no complaints of right shoulder pain before the accident.

b. Bell Cab and Lees evidence Kims torn right rotator cuff was a preexisting condition

Orthopedic surgeon Dr. Robert Wilson, called as an expert witness by Bell Cab and Lee, opined Kims torn right rotator cuff was a preexisting condition. Wilson, who had examined Kim, testified it was very unlikely the pulling motion Kim made would have torn her rotator cuff, explaining a person has to pull away from the body to tear a rotator cuff, not toward the body. Wilson also testified studies show approximately 30 percent to 50 percent of people more than 60 years old have rotator cuff tears due to wear, often without complaints of shoulder pain. He stated he would not be surprised if Kims left rotator cuff were torn as well.

c. The trial courts ruling excluding evidence suggesting Kim had previously complained of right shoulder problems

Bell Cab and Lee attempted to impeach Kims and Mertens testimony that Kim had not previously experienced right shoulder problems by asking Dr. Wilson about four entries in Kims medical records, which had been obtained from the physician who had taken over Dr. Chungs practice.[2] These four entries appeared to suggest Kim had complained about pain in her right shoulder in 1997.

Dr. Wilson had not reviewed these records at the time of his deposition. In fact, according to counsel for Bell Cab and Lee, they were not aware of the references at the time of the deposition because the barely legible entries had been overlooked when the 500 pages of medical records were first reviewed. The trial court ruled the evidence could not be used for impeachment because it would not be fair for [Wilson] to be able to reference records which were not subject to deposition and because Kims counsel had not been told about them.[3]

4. The Jurys Verdict

The jury awarded Kim damages of $49,817.73: $24,817.73 for economic loss, including past and future medical expenses, and $25,000 for noneconomic loss, including pain and suffering.

DICUSSION

1. The Trial Court Improperly Excluded Evidence of Right Shoulder Complaints Noted in Kims Prior Medical Records

It is elementary that a witness may be impeached by contradictory evidence. (Henniger v. Southern Pacific Co. (1967) 250 Cal.App.2d 872, 876; Evid. Code, 780, subd. (i) [in determining credibility of a witness, fact finder may consider the existence or nonexistence of any fact testified to by [the witness]].) The trial courts exclusion of Dr. Wilsons testimony regarding the four apparent references to prior right shoulder complaints in Kims medical records may have been sound if he were attempting to offer opinion testimony beyond the scope of his expert witness declaration or to contradict Dr. Greenfields opinion. (Code Civ. Proc., 2034.300 [exclusion of expert opinion when party fails to comply with disclosure requirement] 2034.260, subd. (c) [requirements for expert witness declaration], 2034.610 [requiring motion to amend witness declaration], 2034.620 [criteria for granting motion to amend expert witness declaration]; see Bonds v. Roy (1999) 20 Cal.4th 140, 148-149 [court may exclude expert witness testimony when the narrative statement fails to disclose the general substance of the testimony the party later wishes to elicit from the expert at trial].) However, the evidence was being offered solely to impeach Kims and Mertens truthfulness and to undermine the credibility of a foundational fact relied upon by Dr. Greenfield. The trial court abused its discretion in excluding this impeachment evidence. (See Kennemur v. State of California (1982) 133 Cal.App.3d 907, 922-923 [A party may impeach an expert witness by contradiction, i.e., by showing the falsity of any matter upon which the expert based his opinion. This can be done either by cross-examination of the expert or by calling other witnesses to offer evidence showing the nonexistence or error in the data upon which the first expert based his opinion.]; cf. Code Civ. Proc., 2034.310, subd. (b) [party may call expert witness not previously designated by that party to impeach testimony of other parties expert witness; impeachment may include testimony to the falsity or nonexistence of any fact used as the foundation for any opinion by any other partys expert witness, but may not include testimony that contradicts the opinion].)

2. The Trial Courts Erroneous Exclusion of Evidence of Kims Prior Right Shoulder Complaints Was Not Prejudicial

The erroneous exclusion of evidence by the trial court is not reversible error unless the error or errors complained of resulted in a miscarriage of justice. (Evid. Code,  354.) A miscarriage of justice should be declared only when the reviewing court is convinced after an examination of the entire case, including the evidence, that it is reasonably probable a result more favorable to the appellant would have been reached absent the error. [Citations.] Prejudice from error is never presumed but must be affirmatively demonstrated by the appellant. (Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 853, 854; Code Civ. Proc., 475.) To do so, the appellant must establish before the trial court the substance, purpose, and relevance of the excluded evidence by the questions asked, an offer of proof, or by any other means. (People v. Anderson (2001) 25 Cal.4th 543, 580.) This rule is necessary because, among other things, the reviewing court must know the substance of the excluded evidence in order to assess prejudice. (Ibid.; People v. Schmies (1996) 44 Cal.App.4th 38, 53 [an offer of proof must be specific and set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued].)

Considering the entire record, it is not reasonably probable that, absent the trial courts erroneous exclusion of the references to right shoulder pain in Kims prior medical records, Bell Cab and Lee would have prevailed. As an initial matter, we do not believe Bell Cab and Lee made a sufficient offer of proof as to the substance of the excluded evidence. (Evid. Code, 354, subd. (a).) The record contains only one page of Kims prior medical records with notations from March 28 and 29, 1997. The notations at issue, as counsel for Bell Cab and Lee commented, are barely legible; it appears the word shoulder occurs three times in the entry for March 28, 1997. But beyond that, it is impossible to decipher the writing from the copy in the record on appeal; at trial counsel failed to make an adequate record as to what the entries in fact say or whether other entries appear on other days. In addition, even assuming that four references to right shoulder complaints appear on this single page of Kims medical records from Dr. Chung, it is unlikely this evidence, if admitted, would have undermined Kims credibility. Perhaps Kim, 77 years old in March 1997, did experience one or two days of shoulder pain at that time. In light of her extensive history of numerous ailments, it is not unreasonable she may have forgotten about that isolated incident six years later nor is it unreasonable that Merten may not have known about these particular complaints.

Bell Cab and Lees argument these prior right shoulder complaints contradict a foundational fact upon which Dr. Greenfield relied is also without merit. Greenfield testified you have to presume a patient does not have a rotator cuff tear at the time that you have seen them in your office unless you have a history of ongoing shoulder problems for years or for months where you can try to get some kind of indication as to when this cuff tear occurred. It is not reasonably probable that four references to right shoulder pain on two days six years earlier would constitute the kind of history of . . . significant shoulder pain or ongoing shoulder problems that would change Greenfields opinion Kims rotator cuff was torn in the accident or cause the jury to question the credibility of Greenfields opinion.

Moreover, even Dr. Greenfield ‑‑ Kims own expert ‑‑ testified to the weakened condition of Kims right rotator cuff due to wear and tear,[4]and admitted he would not be surprised if Kims left rotator cuff were also torn because she had been intermittently having left shoulder problems since the date of his last examination on June 6, 2005.On this record of less than perfect rotator cuffs, Bell Cab and Lee have failed to demonstrate they would have achieved a more favorable result had the meager evidence of Kims prior right shoulder complaints in 1997 been admitted.

DISPOSITION

The judgment is affirmed. Nam Juk Kim is to recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

PERLUSS, P. J.

We concur:

JOHNSON, J.

ZELON, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

[1] According to the reporters transcript of his direct examination, Dr. Greenfield said he first saw Kim January 16, 2003. On cross-examination, however, both defense counsel and Dr. Greenfield referred to the initial examination on July 16, 2003. In her brief on appeal Kim states the January 2003 date, which preceded the accident, is incorrect and confirms the correct date is July 16, 2003.

[2] The parties stipulated to the foundation for all medical records included on the joint trial exhibit list. We assume, and the parties do not contend otherwise, the reference to medical records from Dr. Joseph Chun on that list is an erroneous identification of the records obtained from Dr. Chung at issue on appeal.

[3] The medical records apparently had not yet been received by counsel for Bell Cab and Lee when they produced documents in response to Kims discovery demand.

[4] Dr. Greenfield and Dr. Wilson agreed Kims right rotator cuff was weaker and more susceptible to injury due to her advanced age; they disagreed whether the accident tore her rotator cuff. The jury, however, did not have to conclude Kims rotator cuff was actually torn in the accident to award her the damages it did. Even fully crediting Wilsons opinion that Kims rotator cuff was already torn, the jury may have simply found the accident aggravated the tear and caused Kim, who had previously been asymptomatic (consistent with studies Wilson cited), to experience symptoms. (See Rideau v. Los Angeles Transit Lines (1954) 124 Cal.App.2d 466, 471 [The tort feasor takes the person he injures as he finds him. If, by reason of some preexisting condition, his victim is more susceptible to injury, the tort feasor is not thereby exonerated from liability.].) The court properly instructed the jury that an unusually susceptible plaintiffs recovery is not diminished because of his or her greater susceptibility to injury. (Judicial Council of Cal. Civ. Jury Instns. (2006) CACI No. 3928.)