California Court of Appeals, Second District, Sixth Division
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.
Hernandez and D & H Trucking appeal from a $3.3 million
personal injury judgment entered against them.
Appellant's truck was involved in a collision with a
minivan driven by respondent Joshua David, who sustained
serious physical injuries.
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.)
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.
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.
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.
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
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.”
“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
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
Motion in Limine to Exclude Expert Testimony
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.
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.
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
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.”
Pietruszka's Proposed Trial Testimony
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 ...