(Santa Cruz County Super. Ct. No. CV151980)
The opinion of the court was delivered by: McAdams, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ...