IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
December 9, 2010
LORRAINE SOVINSKY, PLAINTIFF AND APPELLANT,
SAMUEL MARK PARISE, DEFENDANT AND RESPONDENT.
(Santa Cruz County Super. Ct. No. CV151980)
The opinion of the court was delivered by: McAdams, J.
Sovinsky v. Parise
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Plaintiff and appellant Lorraine Sovinsky sued her neighbor, defendant and respondent Samuel Mark Parise, for personal injuries. Sovinsky alleged that she was struck in the head by a piece of wood that Parise threw over the fence between their properties. She claimed that as a result of the incident, she suffered a mild traumatic brain injury resulting in cognitive deficits. The case went to trial and the jury awarded Sovinsky $12,710, which was less than her medical expenses.
On appeal, Sovinsky challenges two of the trial court's evidentiary rulings. She argues that the trial court abused its discretion when it (1) limited the testimony of her retained neuropsychological expert on the issue of causation and (2) when it admitted evidence regarding "stressors" in her life that were separate and apart from the incident involving Parise, including other injuries and other lawsuits. Sovinsky also contends that the damages awarded were inadequate as a matter of law. We find no error and affirm the judgment.
FACTS Events Predating Subject Incident; Other Injuries & Lawsuits
Sovinsky was 61 years old when this case went to trial in 2008. She
was a high school graduate with some junior college education. She
worked as an electrical mechanical designer from 1971 until 1998.
In 1990, Sovinsky married John Sovinsky (Husband)*fn1 and they formed a company called CAD Design Services, Inc. (CADD). Sovinsky was a "principal of the company." Over the years, her duties included design, marketing, managing the company's finances, accounting, training, demonstrating software, and attending trade shows. Sovinsky loaned CADD $200,000 of her separate property "to keep the corporation afloat."
In 2001, Sovinsky discovered that Husband was having an affair and her marriage fell apart. They separated in June 2001 and it appears both parties filed for dissolution of the marriage.
In December 2001, Sovinsky slipped on a twig in her driveway and hit the left side of her head on a brick wall. She saw a doctor the next day, who diagnosed a concussion. Diagnostic testing revealed a meningioma behind her left ear. The meningioma was a benign, non-malignant tumor in the dura (the cover overlying the brain) at the cerebellum, which is in the back of the brain. The meningioma was not due to the fall.
Sovinsky saw Dr. McDermott, a neurosurgeon at U.C. San Francisco Medical Center (UCSF), for the meningioma and he recommended that she have it surgically removed. However, there was no urgency to having the surgery done.
After her domestic problems arose, Sovinsky was demoted to a clerical position. In May 2002, she sued CADD, Husband, and one other corporate officer for (1) breach of fiduciary duty based on the misuse of corporate funds; (2) breach of contract based on the alleged failure to pay commissions and repay the money she had loaned the corporation; (3) removal of the corporate directors; and (4) an accounting (hereafter "lawsuit against CADD"). In July 2002, Sovinsky was disciplined for threatening to shoot a co-worker and suspended from work for four days. At the trial in this case, Sovinsky testified that she did not authorize her attorney to file the lawsuit against CADD. That lawsuit was dismissed in August 2002.
In declarations filed in her divorce action in September 2002, Sovinsky told the family court that her therapist and her brain surgeon had advised her to quit work due to "the stress caused by [her] work environment." Sovinsky was seeing a therapist to help her cope with the things she was going through. Her marriage was dissolved in October 2002, but the parties continued to litigate the property and spousal support issues.
On October 22, 2002, Sovinsky tripped over a doorstop at work and hit her groin on a desk. The next day, she experienced severe low back pain and sought chiropractic care. She filed a workers' compensation claim and was ultimately diagnosed with chronic low back pain with an annular tear at L5-S1, multilevel degenerative disc disease, multilevel facet arthropathy, and multilevel spinal stenosis. She worked until November 5, 2002.
From October 2002 until July 2003, Sovinsky treated with a chiropractor for her low back injury. On November 22, 2002, Sovinsky's primary care physician, Dr. Semerksy, wrote a letter stating that Sovinsky needed to be off work because of her sciatica and because she was under a lot of stress, which limited her ability to be productive at work.
In April or May 2003, Sovinsky had brain surgery at UCSF to remove the meningioma. Dr. McDermott released her to return to work in late June or early July 2003. Sovinsky planned to return to work in August 2003.
Incident That Is the Subject of This Lawsuit
Sovinsky and Parise lived next door to each other in Scotts Valley. Prior to the subject incident, they enjoyed less than a "neighborly" relationship. Parise called Sovinsky a "deceiver" and testified that she had misrepresented the reasons their street had washed out, leaving a big hole in front of his house. Sovinsky claimed that Parise spit at her car two or three times, once hitting her on the arm, and that he spit at one of her friends. At trial, Parise admitted spitting at Sovinsky and her friend and lying about it in his deposition.
On July 24, 2003, Sovinsky's grandson (who lived with her) and his friends were building a tree house in her backyard, near the fence between Sovinsky's property and Parise's property. Parise testified that the boys threw branches, twigs, and sticks at his dog and into his yard. Later that day, Parise picked up the branches, twigs, and sticks and dropped them over the fence into Sovinsky's yard. He did not hear Sovinsky say she was there and did not see the wood hit her.
Sovinsky testified that the boys used some 2x4's they obtained from a nearby construction site for the tree house. After the boys left, she was standing near the tree house when she saw a board come over her fence and hit a retaining wall. She saw Parise through the fence and said, "Sam, I'm working right here, don't be throwing wood." A second board fell in front of her and a third board hit her in the head, right behind her left ear, near the location of her prior surgery. Sovinsky did not keep the board; it resembled a 2x4 her counsel brought to court, except that she did not know how long it was.
At trial, Sovinsky testified that after being hit, she crawled up some stairs to her bedroom and laid down; that she awoke two hours later and called the police. In deposition, Sovinsky testified that she told Parise that she was going to call the police and that she met with the police before she went to sleep.
Scotts Valley Police Officer Jamie Gauthier testified that Sovinsky told him the incident occurred seven minutes before he arrived. Otherwise, Sovinsky's report to the officer was consistent with her testimony in court. Officer Gauthier testified that Sovinsky described what happened, showed him where the accident occurred, understood his questions, and responded appropriately. The officer did not see the wood or any 2x4's and did not know what was thrown over the fence. Officer Gauthier spoke to Parise two days later by phone. Parise's statement to the officer was consistent with Parise's testimony in court.
Medical Care for Subject Incident
The day after the accident, Sovinsky sought medical care from Dr. Dean Zweng at the Santa Cruz Medical Clinic. She told Dr. Zweng that she had been hit on the left side of the head by a 2x4 the day before and that she had a brain tumor removed in May 2003. Sovinsky complained of vomiting, slight dizziness, headache, and a nasal discharge. She reported that she did not have any loss of consciousness. Dr. Zweng concluded that her nasal discharge was a typical nasal discharge and not cerebrospinal fluid. Her blood pressure, which could be a sign of pressure on the brain, was normal. She appeared well on the physical exam, with no bruising or swelling in the area of impact. Dr. Zweng did not observe any cognitive difficulty. The rest of Sovinsky's physical exam was normal, except for some tenderness in the left trapezius and in the back of the head in the area of impact. Dr. Zweng's chief concern was bleeding in the brain, especially at the surgery site. But "looking as good as she did," he felt she was "out of a danger zone" and did not need any diagnostic testing. Dr. Zweng diagnosed a mild concussion. He prescribed Vicodin and told Sovinsky to ice the area and to go to the emergency room if her symptoms increased.
Three or four days later, Sovinsky went to the emergency room at Dominican Hospital. The physicians did an MRI and ordered her transferred to UCSF, where she was hospitalized for observation for three days.
The parties stipulated that the amount of Sovinsky's medical bills was $13,710.08, which included: Santa Cruz Medical Clinic - $204; Dominican Hospital - $2,211; Santa Cruz Emergency Physicians (for the MRI) - $252; Radiology Department - $138; ambulance from Dominican Hospital to UCSF - $1,607; and UCSF - $9,298.08. Defense counsel argued that all of this was for evaluation and diagnosis and did not involve any treatment.
Events After Incident With Parise Employment
In August 2003, CADD terminated Sovinsky's position and laid her off. She has not worked since November 2002.
Continued Treatment for Back Injury & Workers' Compensation Claim
After the incident with Parise, Sovinsky continued to treat for her low back injury. In August 2003, she saw Dr. Vickie Winkler and then transferred her care to Dr. Brian Karvelas, a physiatrist (a specialist in physical medicine and rehabilitation).
In January 2004, Sovinsky was evaluated by Ronald Fujimoto, D.O., an agreed medical examiner in the workers' compensation action. At that time, Sovinsky had just started physical therapy under Dr. Karvelas's direction. Dr. Fujimoto opined that Sovinsky's back condition was not permanent and stationary, that she was still temporarily disabled, and that she would benefit from further medical treatment, including medication, physical therapy, facet or corticosteroid injections, and possibly surgery.
Sovinsky continued to treat with Dr. Karvelas until May 2004. He wanted her to have back surgery, but she told him she was not ready for surgery. She transferred her care to Dr. Bascom, then to Dr. Ware, who referred her to Spine One, a pain clinic.
Sovinsky started treating at Spine One in June 2006. The physicians at Spine One told her she would not need surgery if she went through their pain management program, which included physical therapy, drugs, nutrition, and mental health services. Sovinsky testified that she is going to have chronic pain for the rest of her life and that she needs to learn to live with her pain and not get "too stressed."
Dr. Michael Post, Sovinsky's treating physician at Spine One, testified at trial. He stated that chronic pain can interfere with the rest of a patient's functioning. When he first saw Sovinsky in June 2006, she did not mention any head injuries or complain of any cognitive difficulty. Sovinsky completed 12 weeks of physical therapy at Spine One. The staff noticed that she had trouble completing her assignments, concentrating, focusing, and remembering. In August 2006, Sovinsky told Dr. Post that she was hit in the head by a 2x4 in 2003, with some loss of consciousness. He was concerned that her cognitive problems were due to the medication she was taking for her back pain (Elavil, an anti-depressant, and Vicodin). He decreased her Elavil and asked Dr. Devine, a staff psychologist, to administer the Cognistat, a screening test. After Dr. Post decreased the Elavil, Sovinsky's affect improved noticeably.
Dr. Devine reported that although Sovinsky's Cognistat results were normal in many areas, she had a mild impairment for mathematic calculations, a moderate to severe impairment for recent memory, and a severe impairment of attention, concentration and language repetition. Dr. Post decreased her medication further and adjusted the way they presented information to her so she could benefit from the Spine One program. He told Sovinsky that her cognitive problems were not related to her work injury and that if she wished to pursue the matter, she should consult with her attorney about a neuropsychological evaluation.
CADD paid Sovinsky $5,000 per month while she was on disability for her work injury. In addition, she received $632 per month in temporary disability from the workers' compensation carrier.
Civil Action for Negligence and Premises Liability Related to Fall at Work
In October 2003, Sovinsky filed a civil action for general negligence and premises liability arising out of her trip and fall at work against the owner of the building where CADD was located and the company that did the tenant improvements. The parties conducted discovery and Sovinsky dismissed the civil action in July 2005. The record does not reveal the terms of any settlement in that case.
Sovinsky continued to litigate her dissolution action. The parties signed a marital settlement agreement (MSA) resolving property and spousal support issues in May 2004. The MSA provided that Husband would pay Sovinsky $1,500 per month in spousal support for five years, starting 30 days after her final disability payment ($5,000 per month) from CADD.
Testimony Regarding Sovinsky's Mental Impairment
Sovinsky testified that after the accident with Parise, she realized she could not function. She could not fill out forms for her grandson's school or help him with his homework. She was "having difficulty coping with not being able to function and go to work." She had trouble putting together a resume, reading, and working at her computer. This continued for two and one half years after the accident.
On cross-examination, Sovinsky admitted that in her deposition in 2006 she testified that the only problems she had as a result of the incident with Parise were headaches every 10 days or so and nervousness. She did not testify regarding her cognitive problems in deposition because she was in denial and was very depressed because she could not go back to work. She also failed to disclose any problems concentrating in her answers to interrogatories.
Expert Witness Testimony*fn2 Ronald Morrell, M.A., Plaintiff's Vocational Expert
Morrell has worked in vocational rehabilitation for 36 years. Sovinsky's counsel retained him to interview Sovinsky and render an opinion regarding her work potential. The physicians at Spine One limited Sovinsky to sedentary or light work, based on her physical disability. Her previous employment involved professional and semi-professional work that fell into this category. However, her cognitive impairment precludes her from doing work that involves problem solving or analytical skills. Morrell opined that she could work as a cashier in a gift shop or gas station earning $8 to $10 per hour.
Morrell testified that Sovinsky had earned $72,448 per year. However, Sovinsky's September 2002 income and expense declaration in the dissolution action stated that she earned $60,000 per year.
William Lewis, M.D., Defendant's Medical Expert
Dr. William Lewis, a board-certified neurosurgeon, has practiced medicine for 45 years. He is trained in both neurology and neurosurgery. He does brain surgery and has removed hundreds of tumors. He has treated thousands of patients with brain and spinal cord injuries, including people with speech disturbances and thought problems. He has testified in court 12 to 18 times as an expert in neurology and neurosurgery.
Dr. Lewis explained that the cerebellum, where Sovinsky's tumor was located, is at the base of the skull and that one would have to be bent over, looking between his or her legs to be struck in the cerebellum. The cerebellum controls coordination, not thought processes. A tumor the size of Sovinsky's generally causes no symptoms at all. The tumor was removed easily; the surgery was appropriate and successful.
Dr. Lewis testified that neuropsychologists are not medical doctors. They cannot prescribe medication or order diagnostic testing. In his opinion, they do not possess the requisite expertise to testify regarding brain damage. Dr. Lewis stated that there is a concern in the medical community regarding the legitimacy of neuropsychological testing. Most doctors refer to it as "junk science" because it is highly variable, not intellectually honest, and may be biased depending on one's goals. The test may be biased because the patient is not trying to answer appropriately in the first place. Dr. Lewis often sees patients with mental disturbances quite often to determine whether the patient has an organic brain dysfunction as opposed to a psychological disturbance. If he finds no organic brain damage but determines that a patient had cognitive deficits, he would not refer the patient for neuropsychological testing. Such testing is done primarily for legal purposes. Dr. Lewis talked to eight psychiatrists and not one of them has ever referred a patient for neuropsychological testing as was done in this case.
Dr. Zweng did not find a hematoma, injury to the scalp, or other sign of injury. This indicates that Sovinsky did not suffer a significant blow to the head. Dr. Lewis opined that Dr. Zweng's report of tenderness in the trapezius was due to Sovinsky's pre-existing cervical disc disease. At UCSF, Sovinsky had diagnostic testing, including a CT scan and an MRI of the brain. The tests showed evidence of the surgery for the tumor removal and a small pocket of fluid that was a normal consequence of her surgery and not caused by a blow to the head. The absence of acute blood on these studies indicates that the likelihood of significant injury was "virtually nil." Sovinsky's surgeon, Dr. McDermott, was out of town when she arrived at UCSF. Dr. McDermott testified in deposition that if he had been available, she might not have been hospitalized. After Dr. McDermott evaluated her, he told her there was nothing to worry about and discharged her without further care. Dr. Lewis opined, nonetheless, that it was not unreasonable to admit Sovinsky to UCSF for observation, since she complained of a head injury.
Sovinsky did not raise any concern about cognitive difficulty before August 2006. Sovinsky told Dr. Post that she lost consciousness for five minutes and reported a loss of consciousness to Dr. Perrillo, her retained neuropsychology expert. Dr. Lewis testified that several things indicate that Sovinsky did not lose consciousness after being hit by the wood, as she now claims. First, she called out to Parise and told him she was going to call the police. Second, she spoke to the police officer in a normal fashion, took him to the scene of the incident, demonstrated how the event occurred, and voiced no cognitive concerns. Third, she told Dr. Zweng she suffered no loss of consciousness and his examination was normal. Fourth, no medical observer from the date of the injury (July 2003) until August 2006 reported that she lost consciousness as a result of this incident. Dr. Lewis opined that Dr. Post ordered the initial cognitive testing based on Sovinsky's false report of a loss of consciousness and that the neuropsychological testing was also based on false information.
Dr. Lewis testified that stress can impact concentration, cause distraction, and challenge one's ability to focus. Sovinsky had several external stressors, including multiple lawsuits, her husband's affair, her demotion, her divorce, the debt to finance CADD, and her workers' compensation claim. All of these matters very likely affected her ability to concentrate and pay attention. Dr. Lewis noted that Sovinsky complained that she was "slow in thinking" and had other vague complaints after her fall in 2001. In his opinion, Sovinsky suffers from depression and stress and her cognitive difficulties are due to her emotional state and depression. He also saw evidence in the testing of a failure to fully try. On the Cognistat test, she did not cooperate and told the evaluator that she was tired of being tested and did not like sitting at the computer. Dr. Lewis told the jury that when a patient does not cooperate, you cannot rely on the validity of the test results.
Dr. Lewis examined Sovinsky in March 2007. She had no problem communicating or understanding. His findings were the same as the other doctors with regard to her mental status, but certain things were abnormal on her physical exam. On the motor examination, she had a "collapsing phenomenon," which indicated that she was not trying very hard and caused Dr Lewis to conclude that she was faking weakness in her right leg. She was also awkward when he asked her to do a rapid rhythmic alternating movement with her right foot, which indicated that "she just wasn't trying." On the sensory exam, she had a "stocking type decrease to pinprick" in her right foot and ankle that was not anatomical. She refused to even try to bend over and touch the floor, but was able to stand and sit without difficulty. Sovinsky told Dr. Lewis that she had received $8,000 worth of psychiatric care and that it helped her with her anger problems. Dr. Lewis concluded that Sovinsky has no cognitive deficits or brain injury and that her problems are due to anxiety, depression, and stress factors. He testified that she had no valid physical problems and was malingering.
Dr. Lewis was critical of Dr. Perrillo's evaluation in several respects. First, Dr. Perrillo gave Sovinsky approximately 50 tests. Dr. Lewis had never seen this amount of testing before. Second, Dr. Perrillo said her IQ was 57, which is that of a moron and not a functioning adult. In contrast, Sovinsky appeared to be normal to Dr. Lewis in every sense. Third, Dr. Perrillo recommended neuropsychological monitoring in the future at a cost of $30,000 to $50,000 per year. Dr. Lewis opined that this cost was not at all reasonable and that Sovinsky did not require any future treatment for this accident. Fourth, Dr. Perrillo charged more than $20,000 to test and evaluate Sovinsky. Dr. Lewis opined that this was a waste of time and resources, especially four years after the accident. He stated that it was unreasonable and that the maximum reasonable medical expense for her injury was $1,000. Finally, Dr. Lewis criticized Dr. Perrillo for failing to share his test data, which raises concerns regarding the legitimacy of the testing. Dr. Lewis has never seen a case in which a light blow to the head ends up in brain damage.
Richard Perrillo, Ph.D., Plaintiff's Neuropsychological Expert
Dr. Perrillo obtained a Ph.D. in clinical and counseling psychology from the University of Utah in 1978. He has worked with disabled veterans and a district attorney's office on criminal cases. He has been consulted by school districts, corporations, the military, and the aerospace industry. He teaches seminars regarding neuropsychological testing. He started doing forensic work in the late 1980s and has tested thousands of normal and abnormal brains. He developed the California standards for the MicroCog test, which is used by malpractice insurers to test aging physicians and by the medical board to test physicians who have two or more infractions.
Dr. Perrillo stated that different parts of the brain mediate different behaviors and that neuropsychology is the objective measurement of those functions. "It's not subjective, and it's not voodoo." The military uses neuropsychological testing. He has never heard anyone refer to neuropsychology as "junk science" and every university hospital employs neuropsychologists. A neurosurgeon fixes major events in the brain, like tumors, and when the surgery results in a cognitive loss, the neuropsychologist evaluates how the brain's functions were affected.
Neuropsychology has developed testing norms for different kinds of brain injuries and diseases. A neuropsychologist can diagnose a patient's condition by matching the patterns in a patient's test results against established testing norms. For example, the patterns are different for Alzheimer's disease, as opposed to other types of dementia, a traumatic brain injury, or multiple sclerosis.
Dr. Perrillo spent 10 hours over two days in April 2007 testing Sovinsky. He also interviewed her and reviewed her medical records. He explained that her initial symptoms were typical of a concussion, which neuropsychologists call a "mild traumatic brain injury." He opined that all of the tests he gave Sovinsky are very valid, very reliable, highly predictive and sensitive, and specific to certain brain events.
Dr. Perrillo defined malingering as an outright conscious effort to defraud. A lack of effort can be malingering because the patient is not giving his or her best effort. Neuropsychological testing has an "effort test." Fatigue and distraction can also affect test results. But as long as the patient gives optimal effort, life stressors, anxiety, and depression have little or no effect on neurocognitive testing.
Dr. Perrillo administered three tests to determine Sovinsky's IQ before the subject accident. They indicated that her IQ was in the average range, but there was a 17 point difference between her verbal IQ and her performance IQ, which is abnormal and indicates that she has a mild lateralized brain dysfunction, with the right hemisphere performing much less than the left hemisphere. Dr. Perrillo tested Sovinsky's cognitive functions in the prefrontal and frontal lobe areas, which control attention, concentration, focus, problem-solving, and judgment. Microscopic lesions to the brain do not show up on medical scans like MRI's and CT scans, so neuropsychological tests are the best thing available to determine whether there are injuries to these areas.
Before Dr. Perrillo took the stand, defense counsel objected to allowing him to testify on the issue of causation and the court instructed Sovinsky's counsel that he needed to lay a foundation regarding Dr. Perrillo's qualifications to testify regarding causation. After Dr. Perrillo testified for an hour and a half, the court stated that Sovinsky's counsel still had not laid that foundation and observed that when the court asked Sovinsky's counsel at a sidebar conference whether Dr. Perrillo was going to testify regarding causation, counsel said, "no." The court said that consequently, Dr. Perrillo's areas of expertise were still not clear. The court excused the jury and conducted a hearing on Dr. Perrillo's qualifications to testify on the issue of causation (Evid. Code, § 402; hereafter 402 hearing). During the 402 hearing, which we shall review in greater detail in the discussion portion of this opinion, defense counsel argued that causation has to be based on the testimony of a medical doctor, not a non-physician. The court disagreed and held that Sovinsky had laid a sufficient foundation for Dr. Perrillo to testify regarding a diagnosis and to testify that Sovinsky's cognitive deficits were probably caused by a traumatic head injury consistent with being hit in the head by a 2x4. However, the court did not allow Dr. Perrillo to testify that Sovinsky's brain injury was due to the incident involving Parise.
After the jury returned, Dr. Perrillo testified regarding four tests of Sovinsky's prefrontal lobe that measured attention, problem solving, cognitive flexibility, inhibition, processing ability, and other cognitive functions. The differences in the test results in Sovinsky's prefrontal and temporal areas indicate that she has prefrontal and frontal lobe dysfunction because they are not consistent with her IQ. Her vocabulary index indicated that she knows certain words but is not able to generate them when she needs them. There was no damage to her temporal area, which controls auditory, sensory, verbal, and language functions. She had a mild decrease in function in the occipital area, which controls visual memory and recognition. Testing of the cerebellum showed a profound decrease in both fine and gross motor ability. Her motor scores were profoundly different from what her IQ testing predicted and worse than those of a sample of demented individuals. Testing of her "white matter tracks" revealed a very mild impairment of her processing speed. Dr. Perrillo concluded that Sovinsky has a "statistically clinically abnormal brain" with abnormalities in the frontal/prefrontal areas, cerebellum, and white matter tracks.
Dr. Perrillo told the jury that each clinical condition has a certain brain pattern, showed them a chart, and said Sovinsky's pattern is most closely allied to the pattern for traumatic brain injury. Sovinsky's counsel asked about "the probable causes of this type of injury" and Dr. Perrillo said she matched the pattern for mild traumatic brain injury that could be caused by a blunt injury to the head. However, Sovinsky's results were a little more complicated, so he looked at other possible causes. He considered that she exhibited suboptimal effort on some of the tests. He ruled out predisposition and genetic changes because she did not fit the pattern for "dementing" people. He considered depression and litigation, but all the studies say depression has no effect. Anxiety and life stressor are not factors, because they are accounted for in the sample against which her test results were measured. Her medication history could affect her processing speed. Dr. Perrillo ruled out the tumor and the surgery because the reports indicated they caused no damage. The only thing left is mild traumatic brain injury caused by a closed head injury or a contrecoup effect (a blow to the back of the head causes bruising in the front of the brain). Dr. Perrillo testified that it is probable that Sovinsky's injury is consistent with being hit on the head by a 2x4 and explained that brain injured people do not always realize they have deficits.
Dr. Perrillo opined that Sovinsky needs future medical treatment, including a neuroexercise program for her computer with weekly monitoring by a neuropsychologist, psychological intervention for her anxiety and depression, and a vocational rehabilitation program. He estimated the cost at $30,000 to $50,000 per year but did not specify the duration of the treatment.
On cross-examination, Dr. Perrillo testified that Sovinsky did not tell him that she had chronic pain low back pain, that she had sued CADD, or that she planned to quit her job before the fall at work. She said she was on medication for her back injury but did not tell him that she had been taking Vicodin since 2003 or that she had been taking Elavil for years. She told him she lost consciousness after the accident and since she could not remember details years after the incident, he determined that she suffered post-traumatic amnesia for five days.
Dr. Perrillo charged $20,000 to test and evaluate Sovinsky. He did not provide her with any treatment. He has worked with Sovinsky's counsel on other litigation matters.
Verdict and Motion for New Trial
The jury found that Parise was negligent and that his negligence was a substantial factor in causing harm to Sovinsky. The jury found that Sovinsky's past economic loss, including lost earnings and medical expenses, was $12,710. The jury did not award any damages for future economic loss or for past or future non-economic loss, "including physical pain/mental suffering."
Sovinsky made a motion for new trial, raising the same issues she presents on appeal, plus a claim of instructional error. The court denied the motion.
DISCUSSION Admissibility of Dr. Perrillo's Testimony on Causation
Sovinsky contends that the trial court abused its discretion when it refused to allow Dr. Perrillo to testify regarding causation.
Nature of Inquiry at 402 Hearing
As noted previously, the court conducted a 402 hearing on Dr. Perrillo's qualifications to testify regarding causation. At the outset, the court stated that Dr. Perrillo could testify regarding which records he reviewed, his evaluation of Sovinsky, and his diagnosis.
Defense counsel argued that Dr. Perrillo could not testify regarding causation because he was not a medical doctor, citing Salasguevara v. Wyeth Laboratories (1990) 222 Cal.App.3d 379. Sovinsky's counsel argued that neuropsychologists are just as qualified as medical doctors to differentiate between organic brain conditions and testify about them, citing California Assn. of Psychology Providers v. Rank (1990) 51 Cal.3d 1 (CAPP). Defense counsel argued that was different from testifying about causation.
After additional testimony, the judge stated that he still had not heard any evidence regarding Dr. Perrillo's expertise and background in determining causation and observed that Sovinsky's counsel had not asked to declare Dr. Perrillo an expert in any area. Sovinsky's counsel stated that Dr. Perrillo had examined thousands of people and is in the business of determining whether someone has suffered a brain injury. The judge responded that that was injury, not causation.
After a break, the judge stated that he had read the cases cited and that neither one was on point. The judge observed that there are cases in other jurisdictions that go both ways, allowing and disallowing neuropsychologists to testify regarding causation. Sovinsky's counsel stated that CAPP held that neuropsychologists are on an equal footing with medical doctors to diagnose, treat, and take care of patients in a hospital and argued that to diagnose, you have to determine causation. The court disagreed, stating that causation was different from diagnosis.
The court then conducted further hearing outside the presence of the jury on Dr. Perrillo's qualifications to give an opinion regarding causation. The court observed that it was a question of the "witness's qualifications" and asked the attorneys to "be very specific. What are the qualifications that allow a particular witness to give us an opinion regarding causation in this case."
Standard of Review
"[T]he question whether a witness qualifies as an expert is a matter addressed in the first instance to the sound discretion of the trial court. [Citation.] It is also elementary, however, that the court will be deemed to have abused its discretion if the witness has disclosed sufficient knowledge of the subject to entitle his opinion to go before the jury. [Citation.] Indeed, the exclusion of the sole expert relied upon by a party because of an erroneous view of his qualifications is, in a case where expert testimony is essential, an abuse of discretion as a matter of law requiring reversal." (Brown v. Colm (1971) 11 Cal.3d 639, 646-647.)
Nature of Issue on Appeal and Additional Contentions
Sovinsky argues that the majority of jurisdictions in the United States permit neuropsychologists to testify regarding causation, citing Huntoon v. TCI Cablevision of Colorado (1998) 969 P.2d 681 (Huntoon), an opinion of the Colorado Supreme Court. In Huntoon, the court explored the question whether "neuropsychologists lack the qualifications to opine on the physical cause of organic brain injury as a matter of law." (Id. at p. 689.) The court observed that "the idea that neuropsychologists, as a group, lack the competence necessary to testify on the causation of organic brain injury is the minority view. . . . [T]he rationale for such a prohibition is the idea that psychologists are not medical doctors trained in the physiological aspects of the human body." (Id. at p. 690.) The court cited cases from Arizona, Florida, and Georgia that supported a "blanket exclusion of testimony on causal relationships by psychology professionals" on that basis and noted that the rulings in two of those cases had been superseded by statute. (Id. at p. 689, 690, citing Bilbrey v. Industrial Comm'n (1976) 27 Ariz.App. 473 [superseded by statute]; Executive Car & Truck Leasing, Inc. v. DeSerio (Fla.App.1985) 468 So.2d 1027, 1029-30; and Chandler Exterminators, Inc. v. Morris (1992) 262 Ga. 257 [superseded by statute].) The court observed that "some courts have restricted such testimony on the basis that to do otherwise would allow psychologists to invade the realm reserved for the practice of medicine," citing a case from North Carolina. (Huntoon, at p. 690, citing Martin v. Benson (1997) 125 N.C.App. 330.) The court concluded that "[t]he majority of jurisdictions, however, have found that neuropsychologists may, with the proper foundation, opine on the physical cause of organic brain injury," citing cases from Illinois, Missouri, New Jersey, and Nebraska. (Huntoon, at p. 690, citing Valiulis v. Scheffels (1989) 191 Ill.App.3d 775 [multiple sclerosis]; Landers v. Chrysler Corp. (Mo.Ct.App.1998) 963 S.W.2d 275, 280 [workers' compensation case], overruled on other grounds as stated in Hampton v. Big Boy Steel Erection (2003) 121 S.W.3d 220, 223; Adamson v. Chiovaro (N.J.Super.App.Div.1998) 308 N.J.Super. 70; and Sanchez v. Derby (1989) 230 Neb. 782.) The Colorado Supreme court adopted the majority view, stating, "We can find no compelling reason for the law to single out a particular class of professionals and categorically bar them from expressing opinions on matters that may well be within their expertise." (Huntoon, at p. 690; see also Annot. Psychologist Expert Testimony (1999) 72 A.L.R.5th 529, 598-601, §§ 20(h),(i), and later cases (2008 supp.) p. 30 [noting split of authority in cases involving organic brain injury and citing some different cases].)
Sovinsky argues that the "lesson to be drawn from these cases is that the proper rule should be that if a sufficient evidentiary foundation is laid and the neuropsychologist demonstrates appropriate qualifications, testimony regarding causation of a brain injury should be allowed." She contends further that a proper evidentiary foundation was laid and Dr. Perrillo was qualified to testify about causation in this case.
Parise does not advocate a different rule. However, he contends that the court did not err in limiting Dr. Perrillo's testimony because Sovinsky did not lay a proper foundation demonstrating Dr. Perrillo's qualifications to testify regarding causation.
Although Parise argued that Dr. Perrillo was not qualified to render an opinion regarding causation because he was not a medical doctor, the trial court did not rely on that distinction as the basis of its ruling and concluded, instead, that Dr. Perrillo was not qualified to render an opinion on causation. Since the trial court's ruling was not a blanket exclusion of testimony on causal relationships by neuropsychologists, we need not address the question whether such testimony should be excluded as a matter of law in California and proceed to the question whether Sovinsky laid a sufficient foundation to permit Dr. Perrillo to testify regarding causation.
Evidence at 402 Hearing Regarding Dr. Perrillo's Qualifications to Testify Regarding Causation
Sovinsky's counsel elicited the following evidence at the 402 hearing. Dr. Perrillo has testified in state court 30 to 40 times in various jurisdictions and twice in federal court. Dr. Perrillo said he is qualified to testify regarding the cause of a head injury because he has done "thousands of exams and without being able to determine the cause, the diagnosis does not make any sense. . . . And so, for example, mild traumatic brain injury has a pattern that's different than the Alzheimer's pattern, which is different from the MS pattern, which is different from the toxic exposure pattern." After doing a comprehensive exam, he looks for patterns in the test results. Dr. Perrillo has diagnosed a patient with cerebellar ataxia and determined that it was due to an anthrax vaccination that went wrong. He stated, "You have to have a differential diagnosis, and differential means you know what the cause is."*fn3
Dr. Perrillo stated that Sovinsky's pattern is similar to those of patients that have been diagnosed with mild traumatic brain injury and that "it would take 363 studies to undo the relationship." He routinely examines all of the causes that he thinks are important in a case and analyzes them on a "causality chart" like the one he prepared in this case, in which he evaluated each of the "potential causes" of Sovinsky's cognitive deficits.*fn4 On his causation chart, Dr. Perrillo attributed 25 percent of Sovinsky's test results to suboptimal effort during testing. He testified that there was no evidence of predisposition or genetic change (i.e., progressive dementia) or depression or litigation affecting the results. There was some evidence that her medication history may have affected the results, but by the time he tested her, many of her medications had been significantly reduced. He ruled out the cerebellar tumor and the surgery, because her surgeons said it would not affect her cognitive abilities. Dr. Perrillo concluded that the explanation was a closed head injury. He testified that "[m]y job is to see the changes in herself that she reports and what is the probability that it can be reduced to that incident. But the case is complicated because there are other incidents involved, she banged her head, you know, previously. [¶] So research shows that the cumulative effects could be the cause, too."
Defense counsel elicited the following evidence. Dr. Perrillo is not a neurologist, medical doctor, or neurosurgeon. He cannot prescribe medication and does not have surgical privileges anywhere. Defense counsel impeached Dr. Perrillo with testimony from his deposition in which he testified that Sovinsky "matched the clinical example of people having a dementing condition" that could be due to Alzheimer's, a blow to the head, a "blow out, a slight stroke" and that the reasons for it could be "multiple." At the 402 hearing, Dr. Perrillo told the court that all of these reasons could be correct.
The court then questioned Dr. Perrillo and asked, "What training or education do you have specifically in being able to render an opinion regarding causation?" Dr. Perrillo responded that as a predoctoral student, he was on the staff at the VA hospital in Salt Lake City where his job was to diagnose the patients' conditions based on their "brain patterns" and determine what the likely cause was. He has recently diagnosed veterans with depleted uranium in their urine and Gulf War Syndrome. He has completed over 300 seminars in unspecified topics. He teaches "updates on testing" every year "and the updates always include causes because the students need to know the pattern of the brain . . . to be able to identify what causes that pattern."
The court stated, "I don't think you answered my question." Dr. Perrillo stated, "I don't understand what you are saying" and the court asked, "Who taught you how to render an opinion regarding causation? . . . Not where did you teach it, not where did you see people with injuries at hospitals, but how did you learn to be able to do that?" Dr. Perrillo responded, "through training and supervised training and experience. . . . part of the training in an [American Psychological Association]-approved program is to look at different brain patterns and what causes it." Dr. Perrillo testified again about how he distinguishes between different conditions based on the patterns in a patient's test results. The court asked whether it was something he learned at the University of Utah and Dr. Perrillo responded affirmatively. When the court asked him, "What sort of classes?" Dr. Perrillo responded with a general list of classes he took, including "testing, physiological psychology, perception, neurology, and psychiatry . . . [e]ven hypnosis." He added that "causality is in all the textbooks" and talked about understanding conditions so the neuropsychologist can diagnose properly.
The judge stated that the attorneys had not cited a single California case that held that a neuropsychologist can testify regarding causation of a brain injury and reiterated his view that diagnosis and causation are not the same thing. Dr. Perrillo stated that he has been testing brains since he was a student, that he has performed thousands of tests, that he generally writes a report after his examination, and that in 99 percent of cases he opines regarding causation.
The judge asked Dr. Perrillo what his opinion was regarding the cause of Sovinsky's brain injury and how he was going to phrase it. Dr. Perrillo responded that the pattern of her test results "most closely ally themselves with a mild traumatic brain injury." When the judge asked whether it was due to the accident involving Parise, Dr. Perrillo stated that this case was a little more complicated because Sovinsky was vulnerable prior to the subject injury. She had a previous head injury or two, a brain tumor with brain surgery, she has fallen several times and research shows that the cumulative effects of brain insults are dangerous. In addition, she did not give her optimal effort on some of the tests. However, based on what Sovinsky told him and her symptoms at the time of the event, Dr. Perrillo was prepared to testify that it was more probable than not that she had a mild traumatic brain insult during the incident involving Parise and that the slip and fall in 2001 made her more vulnerable.
The court concluded that Sovinsky had laid a sufficient foundation for Dr. Perrillo to testify regarding a diagnosis and to testify that Sovinsky's cognitive deficits were caused by a traumatic head injury consistent with being hit in the head by a 2x4.
Based on the trial judge's questions and remarks, it is evident that his primary concern was Dr. Perrillo's qualifications to testify regarding legal cause, meaning the causal relationship between Sovinsky's claimed cognitive deficits and the incident involving Parise. Contrary to Sovinsky's assertion that the trial judge confused the concepts of symptoms, diagnosis and cause, the record reflects that the court had no trouble distinguishing these issues, but that Dr. Perrillo often confused diagnosis (the determination of the disease or condition that causes the patient's symptoms) with legal causation. Mild traumatic brain injury, Alzheimer's disease, multiple sclerosis are medical diagnoses. Mild traumatic brain injury due to being struck in the head by a 2x4 is a determination of legal cause.
Dr. Perrillo diagnosed a mild traumatic brain injury as one of the causes of Sovinsky's cognitive deficits. However, he said several things that undercut his ability to opine that the mild traumatic brain injury was caused by being struck in the head by a 2x4 thrown by Parise. Dr. Perrillo testified that it was his job as a retained expert to determine the probability that Sovinsky's injuries could be reduced to the incident involving Parise, thus suggesting a bias toward helping Sovinsky make her case. He acknowledged that there were other causes of her cognitive deficits, including the prior head injury in 2001, suboptimal effort on testing, and the cumulative effect of multiple head injuries. On cross-examination, he repeated his deposition testimony that Sovinsky's cognitive deficits could be due to Alzheimer's disease, a blow to the head, or a "blow out," which leads to the conclusion the Dr. Perrillo could not testify regarding a definitive legal cause of injury. As between the multiple causes that Dr. Perrillo testified about, he never stated that the head injury she sustained in the incident with Parise was a substantial factor in causing the cognitive deficits that surfaced years later. (Espinosa v. Little Co. of Mary Hospital (1995) 31 Cal.App.4th 1304, 1317 [medical expert testified that three causal factors, two of which were due to the defendant's conduct, were "substantial, contributory and essential to produce the ultimate outcome"; expert's "inability to pin down the exact extent to which defendants' conduct contributed to the outcome is immaterial for purposes of causation"].)
When the court asked Dr. Perrillo to describe his training in rendering an opinion regarding legal causation, he responded with information regarding his training in rendering a diagnosis based on brain patterns. When the court asked him to specify the classes in which he learned to determine legal causation, he responded with general course titles and nothing specific to determining legal cause.
On this record, we cannot say the court abused its discretion when it limited Dr. Perrillo's testimony regarding legal causation.
Sovinsky argues that Dr. Perrillo "was prepared to opine about the cause of [her] cognitive deficits by discussing all of the potential causes and how the results of the testing supported his opinions" but he was not permitted to do so. Although not entirely clear from her brief, Sovinsky seems to contend that the court erred by refusing to allow Dr. Perrillo to use his causality chart in his presentation. Sovinsky argues that if Dr. Perrillo had been allowed to opine regarding causation, the jury would have had guidance about how to evaluate the various factors that were introduced at trial, which would have assisted in apportioning between the Parise incident and other causes. The only thing Dr. Perrillo said at the 402 hearing regarding apportionment was that Sovinsky's test results were due 25 percent to suboptimal effort. Sovinsky's counsel told the court that Dr. Perrillo was prepared to testify that he looked at all the causes and attributed 80 percent of her traumatic brain injury to the head injury caused by Parise. However, Dr. Perrillo did not testify to that figure before the jury. When Dr. Perrillo testified about his ultimate conclusion regarding causation, the court sustained the defense's objection to the use of the causality chart. We do not know whether there were other apportionment figures on Dr. Perrillo's causality chart, since the chart is not in the record.
Even if we were to conclude that the court erred in precluding Dr. Perrillo from using his causality chart, any such error was harmless, since Dr. Perrillo told the jury he considered and ruled out a variety of possible causes, including predisposition and genetic changes, depression and litigation, anxiety and life stressors, as well as her brain tumor and the surgery. He also told the jury he considered her suboptimal effort and her medication history in arriving at his ultimate conclusion that it is probable that Sovinsky's injury is consistent with being hit on the head by a 2x4. Nothing in the record suggests that there was any information on the chart that was not before the jury.
In support of her contention that Dr. Perrillo was qualified to testify regarding causation, Sovinsky argues that he "has been allowed to testify regarding causation in California and other jurisdictions" and cites an unpublished appellate court opinion from Washington. This argument is problematic for two reasons. First, there was no such evidence before the trial court. Although Dr. Perrillo stated that he had testified in state court 30 to 40 times and twice in federal court, he did not say whether he testified regarding causation in those cases. Moreover, evidence regarding the unpublished case cited in Sovinsky's appellate brief was not presented to the trial court. Second, unpublished opinions cannot be cited or relied on by a court or a party in any other action or proceeding, except under the limited circumstances set forth in California Rules of Court, rule 8.1115(b), none of which apply here. (Cal. Rules of Court, rule 8.1115(a) & (b); Schmier v. Supreme Court of California (2000) 78 Cal.App.4th 703, 706.) We shall therefore disregard Sovinsky's argument based on the unpublished case.
Sovinsky's reliance on People v. Cegers (1992) 7 Cal.App.4th 988 and Roberti v. Andy's Termite & Pest Control (2003) 113 Cal.App.4th 893 is misplaced. In Cegers, the appellate court held that the trial court erred in precluding a defense psychologist from testifying that the defendant suffered from "confusional arousal syndrome" on Evidence Code section 352 and Kelly-Frye grounds; in Cegers, there was no question regarding the expert's qualifications to testify on the issue. (Cegers, at pp. 994, 995-1002.) In Roberti, the appellate court held that the trial court erred in applying the Kelly-Frye test to medical and psychological theories regarding the cause of autism. Roberti does not address the issue presented here: the exclusion of expert testimony for lack of qualifications. (Roberti, at pp. 901-904.)
During the 402 hearing, the court asked Dr. Perrillo what his opinion was regarding the cause of Sovinsky's brain injury and how he was going to phrase it. Dr. Perrillo responded that the pattern of her test results "most closely ally themselves with a mild traumatic brain injury." When the judge asked whether it was due to the accident involving Parise, Dr. Perrillo acknowledged that there were multiple causes and said that it was more probable than not that she had a mild traumatic brain insult during the incident involving Parise and that the slip and fall in 2001 made her more vulnerable. The limitation that the court placed on Dr. Perrillo's testimony regarding causation was consistent with his testimony on the issue at the 402 hearing.
For all these reasons, we conclude that the court did not abuse its discretion in limiting Dr. Perrillo's testimony regarding legal causation and even if there was error, it was harmless.
Admissibility of Evidence of Other Stressors in Sovinsky's Life
Sovinsky contends that the court erred when it admitted evidence of her life stressors, including her other injuries and lawsuits, on the ground that the prejudicial effect of this evidence outweighed its probative value (Evid. Code, § 352).
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
We review the trial court's ruling on the admissibility of evidence, including claims based on Evidence Code section 352, for an abuse of discretion. (Gordon v. Nissan Motor Co., Ltd. (2009) 170 Cal.App.4th 1103, 1111; Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1685.)
Rather than focus on particular exhibits, testimony, or evidentiary rulings, Sovinsky complains about the admission of a broad category of evidence relating to her "life stressors" other than the incident involving Parise. The statement of facts in Sovinsky's opening brief lists evidence relating to some of her "life stressors" as 17 distinct facts, but Sovinsky does not discuss any particular fact, stressor, or piece of evidence in the argument portion of her brief, electing instead to treat this as one broad category of evidence. She asserts broadly that all of this evidence was admitted over the objection of counsel, but as set forth below, that was not always the case.
Without identifying the specific evidence or ruling at issue, it is difficult for this court to assess this claim on appeal, which raises the question whether Sovinsky has met her burden of demonstrating error. One of the fundamental rules of appellate review is that an appealed judgment is presumed to be correct. "All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown." (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) The appellant has the burden of overcoming the presumption of correctness. "To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error." (In re S.C. (2006) 138 Cal.App.4th 396, 408.) The appellant's burden on appeal requires "more than simply stating a bare assertion that the judgment, or part of it, is erroneous and leaving it to the appellate court to figure out why; it is not the appellate court's role to construct theories or arguments that would undermine the judgment and defeat the presumption of correctness." (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2009) ¶ 8:17.1, p. 8-5 to 8-6, citing Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.) When the appellant asserts a point but fails to support it with reasoned argument and citations to authority, the appellate court may treat it as waived and pass it without consideration. (People v. Stanley (1995) 10 Cal.4th 764, 793; see, e.g., Taylor v. Roseville Toyota, Inc. (2006) 138 Cal.App.4th 994, 1001, fn. 2 [contention forfeited, where it is "merely asserted without argument or authority"].) With these concerns in mind, we shall nonetheless address Sovinsky's contention regarding the evidence of prior lawsuits and injuries.
At trial, Sovinsky agreed that evidence regarding two of her lawsuits (her workers' compensation claim and her last divorce) was admissible. With regard to the workers' compensation claim, Sovinsky filed a written motion in limine objecting to Dr. Lewis's testimony on multiple grounds, including that Dr. Lewis should be precluded from testifying about her industrial back injury because the evidence was more prejudicial than probative and would "waste the court's time" (Evid. Code, § 352). Sovinsky also argued: (1) that Dr. Lewis should not be allowed to testify regarding her industrial injury on the grounds of relevance, (2) that Dr. Lewis should not be allowed to testify regarding legal issues or to offer legal opinions, and (3) that Dr. Lewis was not qualified to testify regarding neuropsychology because he is a neurosurgeon and not a neuropsychologist. The court agreed on the second point, but denied the remainder of the motion in limine without prejudice to Sovinsky raising these objections during Dr. Lewis's testimony. Moreover, while arguing her motions in limine to the court, Sovinsky agreed that evidence regarding her workers' compensation claim and treatment for her industrial injury had to come in to explain how she eventually came to be evaluated by Dr. Perrillo. She testified regarding her treatment for her back injury in detail on direct examination.
With regard to evidence regarding her divorces, although Sovinsky's counsel was successful at excluding evidence of Sovinsky's first four divorces, counsel stated he had no objection to the admission of evidence regarding her fifth divorce from John Sovinsky. When a party agrees to an action taken by the trial court, he or she cannot challenge that action on appeal. (Nevada County Office of Education v. Riles (1983) 149 Cal.App.3d 767, 779.)
On direct examination, Sovinsky told the jury that she resolved her employment dispute with CADD in 2001 and that her divorce attorney made a mistake and filed suit against CADD without her authorization. Defense counsel impeached that testimony with evidence that Sovinsky filed the lawsuit against CADD in May 2002 and dismissed it three months later. When defense counsel introduced a copy of the complaint in the lawsuit against CADD, Sovinsky's counsel objected on the grounds of relevance because Sovinsky had not signed the complaint, but not on the basis of Evidence Code section 352. When defense counsel introduced evidence regarding her lawsuit against the owner of the property where her industrial accident occurred, Sovinsky's counsel objected again on the ground of relevance. The court overruled both objections. "Generally, reviewing courts will not consider a challenge to the admissibility of evidence absent ' "a specific and timely objection in the trial court on the ground sought to be urged on appeal." ' " (People v. Champion (1995) 9 Cal.4th 879, 918, overruled on other grounds in People v. Combs (2004) 34 Cal.4th 821, 860.) Since Sovinsky did not object to the evidence regarding the lawsuit against CADD or the third party suit arising out of her fall at work on Evidence Code section 352 grounds in the trial court, we conclude that this argument has not been preserved for appeal and has been forfeited. (Evid. Code, § 353, subd. (a).) After Sovinsky testified about both lawsuits and while discussing her objections to other evidence outside the presence of the jury, she objected that "it's extremely prejudicial to start talking about every other lawsuit that she had." We conclude that this objection was untimely.
Sovinsky testified on direct examination regarding her fall at home in December 2001, the discovery of her meningioma, and her brain surgery. Presumably this was done to explain why she went to UCSF after the subject accident and because Dr. Perrillo considered these matters as part of his opinion regarding causation.
On direct examination, Sovinsky testified that although she was demoted in 2001, things were otherwise going well and she was "happy" at work prior to her industrial injury. Sovinsky's counsel objected to the admission of a letter from her employer from July of 2002, in which she was disciplined for threatening to shoot a co-worker and suspended from work for four days, on Evidence Code section 352 grounds. Defense counsel argued that the letter was admissible to impeach Sovinsky's testimony that things were going well at work. The trial court overruled the objection and allowed defense counsel to impeach her with the letter. Sovinsky does not address this ruling on appeal and we perceive no error in the ruling.
Thus far, we have addressed all of Sovinsky's other lawsuits and other injuries and concluded, for a variety of reasons, that her claim of error with regard to those matters has either been forfeited or is without merit. Since Sovinsky has not provided us with any reasoned argument with regard to the other life stressors listed in her brief, we conclude that any claim of error she may have regarding the admission of that evidence is forfeited.
Adequacy of Jury Award
Sovinsky contends that the damages were inadequate as a matter of law because the jury awarded less than the amount of her medical expenses for her economic damages and did not award any non-economic damages for her pain and suffering.
An appellate court has limited power to review the jury's award of damages. (Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361.) "The common law in its wisdom has left these inherently subjective decisions regarding damages with the jury as the trier of fact to apply its collective experience, common sense, and diverse backgrounds. As a further safeguard, the trial judge has considerable discretion to review excessive or inadequate damage awards in connection with a motion for new trial." (Abbott v. Taz Express (1998) 67 Cal.App.4th 853, 857 (Abbott).)
Where the plaintiff moves for a new trial on the ground of inadequate damages, the trial court "must weigh the evidence and acts as an independent trier of fact." (County of Los Angeles v. Southern Cal. Edison Co. (2003) 112 Cal.App.4th 1108, 1121.) The trial court is in a better position than the appellate court "to evaluate the amount of damages awarded in light of the evidence presented at trial." (Ibid.) Consequently, "[a]lthough the trial court's determination is not binding upon a reviewing court, it is to be accorded great weight because having been present at the trial the trial judge was necessarily more familiar with the evidence." (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 64.)
Thus, the reviewing court "must uphold an award of damages whenever possible." (Westphal v. Wal-Mart Stores, Inc. (1998) 68 Cal.App.4th 1071, 1078.) " 'An appellate court is authorized to disturb a judgment on the ground of inadequacy of damages only where the amount of the award is supported by no substantial evidence in the record and the verdict is a clear abuse of the jury's discretion." (Sherwood v. Rossini (1968) 264 Cal.App.2d 926, 931.)
To determine whether a damages award is supported by substantial evidence, we are guided by well established rules. "[T]he reviewing court must start with the presumption that the record contains evidence sufficient to support the judgment; it is appellant's burden to demonstrate otherwise." (Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 368.) "Under that standard, we must consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the judgment." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 630.) "It is not our task to weigh conflicts and disputes in the evidence; that is the province of the trier of fact. Our authority begins and ends with a determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, in support of the judgment." (Id. at pp. 630-631.) "In short, even if the judgment of the trial court is against the weight of the evidence, we are bound to uphold it so long as the record is free from prejudicial error and the judgment is supported by evidence which is substantial, that is, of ponderable legal significance, reasonable in nature, credible, and of solid value . . . ." (Id. at p. 631, internal quotations marks omitted.)
We conclude that the jury's award of $12,710 for past economic damages is supported by substantial evidence. As the Abbott court explained, we may not "question the discretionary determinations of jury and judge, so long as they fall within a reasonable range permitted by the evidence." (Abbott, supra, 67 Cal.App.4th at p. 857.) The evidence regarding past medical expenses ranged from $1,000 to $13,710. Sovinsky claimed $13,710 for past medical expenses. Dr. Lewis opined that the maximum reasonable medical expense for Sovinsky's injury was $1,000. Although Dr. Lewis stated that it was not unreasonable to admit Sovinsky to UCSF for observation, since she complained of a head injury, he also told the jury that Dr. McDermott testified that if he had been available when Sovinsky was admitted, she might not have been hospitalized at all. Sovinsky did not claim any past wage loss and at the time of the incident, she was on disability for her low back injury. The jury's award for past economic damages therefore falls within the reasonable range of the evidence. We also give great weight to the trial court's determination, in denying Sovinsky's motion for new trial, that the award of past economic damages was adequate.
Sovinsky contends that damages were inadequate as a matter of law because the jury failed to award her any past non-economic damages. She relies on the argument of Sovinsky's counsel, who suggested to the jury that Sovinsky's pain and suffering during the two-week period following the incident was worth $5,000. However, the argument of counsel is not evidence.
There is substantial evidence that supports the jury's decision not to award Sovinsky any non-economic damages following this incident. When she saw Dr. Zweng, she complained of vomiting, slight dizziness, and a headache. Dr. Zweng testified that her physical exam was entirely normal, except for some slight tenderness in her trapezius. He did not order any diagnostic testing and did not prescribe any treatment except for pain medication and ice. Dr. Lewis testified, based on Dr. Zweng's examination, that Sovinsky did not suffer a significant blow to the head and that the tenderness in her trapezius was due to pre-existing degenerative disc disease in her neck. He also testified that the doctors at UCSF could not find anything significantly wrong and ordered the diagnostic testing because she complained of headaches and dizziness and had a previous history of brain tumor. Moreover, the absence of acute blood on the scans indicated that the likelihood of any significant injury was "virtually nil." After Dr. McDermott examined her, he told her there was nothing to worry about and discharged her immediately without further care. Dr. Lewis testified that Sovinsky had no valid physical problem, was faking aspects of her physical exam, and was malingering. This evidence supports the jury's conclusion that Sovinsky was not entitled to non-economic damages.
Sovinsky's reliance on Wilson v. R.D. Werner Co., Inc. (1980) 108 Cal.App.3d 878, is misplaced. The plaintiff in Wilson fractured his right elbow and both wrists after a fall from a ladder and sued the ladder manufacturer for negligence. His medical expenses and lost wages totaled $10,930, but the jury awarded only $10,000. The appellate court concluded that the damages were inadequate as a matter of law because they "failed to compensate him at all for his pain and suffering." (Id. at p. 883.) The court observed that the evidence of the plaintiff's pain and suffering was uncontroverted. The plaintiff required surgery on the wrists and elbow. He was immobilized in a casts for three months and had physical therapy. He "suffered continued pain and numbness in his arms, he suffered interrupted sleep, and he was forced to curtail his recreational activities." (Ibid.) In contrast, in this case, the evidence regarding the extent of Sovinsky's injury was in dispute, with substantial evidence supporting the conclusion that she suffered no significant injury in the incident involving Parise.
The judgment, based upon the jury's determination of the evidence and witness credibility, will not be disturbed on appeal.
The judgment is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J. Mihara, J.