California Court of Appeals, Second District, Sixth Division
Superior Court of Ventura County, No.
56-2011-00391849-CU-PA-VTA, Vincent J. O'Neill, Jr.,
[Copyrighted Material Omitted]
& Levy, Lisa Perrochet, Curt Cutting; Law Offices of Mark G.
Cunningham and Mark G. Cunningham for Defendants and
Richards McMillan Miller & Templeman, John H. Howard;
Ferguson Case Orr Paterson, Wendy C. Lascher and John A.
Hribar for Plaintiff and Respondent.
by Yegan, J., with Gilbert, P. J., and Perren, J.,
Cal.Rptr.3d 717] YEGAN, J.
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 [172 Cal.Rptr.3d 204].)
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. ... [220 Cal.Rptr.3d 718] [T]he bone was protruding
through the skin."
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 [82 Cal.Rptr.3d 577].) 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.
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 ...