Smith v. Berezay

Filed 4/7/06 Smith v. Berezay CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

I.

Introduction

Plaintiff and appellant Douglas P. Smith (Smith) sued defendant and respondent Greg Ray Berezay (Berezay) for personal injuries allegedly arising out of an automobile collision. Defendant conceded liability, but contended the collision caused no injury. After a trial on the issues of causation and damages, the jury returned a defense verdict. Plaintiff appeals from the judgment, claiming misconduct by defense counsel and that the jury deprived him of a fair trial. Finding no reversible error, we affirm the judgment.

II.

Factual and Procedural Backgrounds

A. Evidence at Trial

On May 2, 2002, Smith was waiting to pick up his son from school when the rear end of his car was hit by a car driven by Berezay. At the time of the collision, Smith was wearing his seatbelt and was at a complete stop in a line of cars outside of his son's school. Berezay, who was behind Smith, reached down to pick up a compact disc case, which caused his foot to momentarily release the pressure on the brake pedal. Berezay testified that his foot never left the brake pedal. He estimated that he was traveling at less than one mile per hour.[1] Neither car sustained any visible damage.

Smith testified that he experienced immediate and extreme muscle spasms in his upper and lower back. Smith was removed from his car by emergency personnel and was transported by ambulance to Kaiser, where he was given a Demerol injection. At the time, Smith was undergoing treatment for a previous back injury. Due to this preexisting condition, Kaiser only provided pain medication and advised Smith to see his treating physician immediately.

Smith was unable to get an appointment with his treating physician, Dr. Michael Moskowitz, until a few days after the accident. Dr. Moskowitz, a pain management specialist, had been Smith's treating physician since 1997. In the five years prior to the May 2002 collision, Smith saw Dr. Moskowitz an estimated 120-150 times. Before and after the collision, Smith had also been treated by Dr. James Reynolds, an orthopedic surgeon, and a Dr. Derby.[2]

Smith continued to treat with Dr. Moskowitz throughout the recovery period from the May 2002 collision and continues to treat with him to this day. Smith described Dr. Moskowitz as being primarily involved in pain management and â€