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David v. Hernandez

California Court of Appeals, Second District, Sixth Division

July 25, 2017

JOSHUA DAVID, Plaintiff and Respondent,
v.
DAVID HERNANDEZ et al., Defendants and Appellants.

         Superior Court County, No. 56-2011-00391849-CU- PA-VTA of Ventura Vincent J. O'Neill, Judge

          Horvitz & Levy, Lisa Perrochet and Curt Cutting; Law Offices of Mark G. Cunningham, Mark G. Cunningham, for Defendants and Appellants.

          Lowthorp Richards McMillan Miller & Templeman, John H. Howard; Ferguson Case Orr Paterson, Wendy C. Lascher and John A. Hribar, for Plaintiff and Respondent.

          YEGAN, J.

         David Hernandez and D & H Trucking appeal from a $3.3 million personal injury judgment entered against them.[1] Appellant's truck was involved in a collision with a minivan driven by respondent Joshua David, who sustained serious physical injuries.

         This is the second appeal in this matter. In the first appeal, we reversed a judgment entered in appellant's favor after a jury trial. (David v. Hernandez (2014) 226 Cal.App.4th 578, 592.)

         On retrial, the jury found that it is reasonably certain respondent will need four future shoulder surgeries. Appellant concedes that one future shoulder surgery is reasonably certain. He contends that the evidence is insufficient to support the need for three subsequent shoulder surgeries. He also contends that the trial court erroneously excluded expert testimony that respondent's ability to drive was impaired by marijuana use. We affirm.

         Facts

         Appellant is a truck driver. At the time of the collision in June 2010, he was driving a tractor that was hauling a flatbed trailer. The trailer was 45 feet long. It was carrying a load of cement that weighed approximately 45, 000 pounds.

         While traveling northbound on Pacific Coast Highway, appellant drove across the southbound lane and pulled into a parking area next to that lane. The tractor-trailer was facing north against oncoming southbound traffic. Appellant parked and took a nap. When he awoke, it was getting dark. He decided to continue northbound on Pacific Coast Highway. Appellant turned on his lights, drove across the southbound lane, and turned left into the northbound lane.

         Respondent was driving a minivan southbound on Pacific Coast Highway. The left front of the minivan crashed into the middle of the left side of the flatbed trailer. “The point of impact was squarely in the southbound lane.” At the time of impact, appellant's truck was traveling at about 10 to 15 miles per hour. The minivan was traveling at about 45 miles per hour.

         Respondent remembered nothing about the collision. Natalie Pierson was in the front passenger seat of the minivan. She saw the tractor's headlights in the northbound lane. She then “saw [respondent's] eyes go big.” She looked forward and saw “a dark object that was right in front of [her]” in the southbound lane. The dark object was the left side of the flatbed trailer. In her “peripheral vision, ” Pierson saw respondent “turn the wheel to the right.” The next thing that happened was “the crash.”

         Respondent “was trapped in the driver's seat.” It took about 45 minutes to extricate him from the vehicle. His injuries included “an open fracture in his [left] shoulder.... [T]he bone was protruding through the skin.”

         Jury Verdict

         On retrial the jury found that appellant was negligent and that his negligence was a substantial factor in causing respondent's injuries. It also found that respondent was negligent but that his negligence was not a substantial factor in causing his injuries. It awarded respondent damages of $3, 317, 580. The damages include future medical expenses for four shoulder surgeries at a cost of $161, 750 per surgery.

         Respondent's Motion in Limine to Exclude Expert Testimony

         At the first trial the court excluded evidence of respondent's marijuana use. At the retrial appellant again sought to present expert testimony to show that, at the time of the collision, respondent's ability to drive was impaired by his consumption of marijuana. Appellant's expert witness was Dr. Marvin Pietruszka.

         Respondent filed a pretrial motion in limine to exclude Dr. Pietruszka's testimony. No live testimony was presented at the hearing on the motion. The parties presented written materials. A “physician progress note” shows that, immediately after the collision, respondent told an emergency-room physician that he had “occasional[ly]” used marijuana but had not consumed it within the past 36 hours.

         A urine sample was collected from respondent in the emergency room. A urine drug screen was positive for THC (tetrahydrocannabinol). THC is “the psychoactive ingredient” in marijuana. (People v. Bergen (2008) 166 Cal.App.4th 161, 164.) There are two types of THC - active (also known as hydroxy THC) and inactive (also known as carboxy THC). During oral argument at the hearing on the motion in limine, respondent's counsel explained to the trial court: “An active metabolite means that the ingredients are there that can potentially make a person impaired. If it's an inactive metabolite, that means it's still there in the fatty tissue, but it's not doing anything to anybody.” Appellant did not dispute counsel's explanation.[2]

         Respondent's test result does not show the concentration of THC in his urine or the extent to which the THC is active or inactive. To test positive, the THC concentration had to be at least “50 NG/ML” - 50 nanograms per milliliter. The Laboratory Report states: “This urine drug screen provides only a preliminary test result. These results are to be used for medical purposes only. [¶] A more specific alternate chemical method must be used in order to obtain a confirmed analytical result.”[3]

         Dr. Pietruszka's Proposed Trial Testimony

         Dr. Pietruszka's proposed trial testimony, as set forth in his deposition, was as follows: In the emergency room after the collision, respondent had “very high blood pressure, ” a “rapid pulse, ” and a “rapid respiratory rate.” These symptoms, as well as his “loss of memory, ” are consistent with being under the influence of marijuana. But stress and traumatic injuries can ...


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