Hedren v. Allen CA4/1 ( 2013 )

Filed 12/16/13 Hedren v. Allen CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
TIPPI HEDREN, D061186
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2009-00095599-
CU-NP-CTL)
JOSEPH D. ALLEN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, William S.
Dato, Judge. Affirmed.
Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup, Bartley L. Becker and
Allison A. Arabian for the Defendant and Appellant.
Greene, Broillet & Wheeler and Bruce A. Broillet, Geoffrey S. Wells and Alan
Van Gelder; Esner, Chang & Boyer and Stuart B. Esner, Andrew N. Chang and Holly N.
Boyer for the Plaintiff and Respondent.
In this legal malpractice action, defendant Joseph D. Allen, who represented
plaintiff Tippi Hedren in the underlying personal injury action, appeals from a judgment
on a jury verdict in favor of Hedren. The judgment awards Hedren damages that the jury
found she would have recovered in the underlying action but for Allen's negligence in
dismissing the action without obtaining a stipulation from the defendants to toll the
statute of limitations. In the underlying action, Hedren alleged that as a result of the
negligence of the owners of a sound stage where she was rehearsing and filming a scene
for a motion picture, a gallon of water fell on her head and caused the return of a chronic
headache condition that had been successfully treated.
Allen contends that (1) the court erred in refusing to give jury instructions on
superseding causation and contributory negligence; (2) Hedren's medical expert provided
no reasoned basis for his opinion that the subject accident caused Hedren's headaches to
return; (3) the court erred in admitting speculative expert testimony concerning lost future
earnings and earning capacity; (4) because there was no competent evidence of lost future
earnings or earning capacity, the court erred in instructing the jury that it could award
such damages; and (5) the jury's total award of damages is excessive as a matter of law.
Allen contends that each of the court's errors standing alone requires reversal of the
judgment and remand for a new trial. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Hedren's Career
Hedren was born in Minnesota in 1930. She moved to the Los Angeles area with
her parents when she was 17 and finished high school there. After studying arts at
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Pasadena City College for one year, she moved to New York and pursued a successful
modeling career. When television became prevalent, she appeared in numerous
television commercials. In 1961, Alfred Hitchcock discovered her in a television
commercial and cast her in a starring role in his movie The Birds. Because she had no
previous acting training, Hitchcock became her drama coach as well as her director. She
received a Golden Globe award for the most promising actress of 1961 for her role in The
Birds. After The Birds, Hitchcock cast Hedren in the leading role in the movie Marnie.
Hedren continued to have a successful acting career and has appeared in numerous
feature films and television shows over the years.
After working on two films in Africa and 1969 and 1970, Hedren became
interested in wildlife preservation and founded Shambala, a preserve in Southern
California for big cats born in captivity. In 1983 she founded a nonprofit organization
named the Roar Foundation to accept donations for Shambala. Hedren served as
Shambala's president and worked to raise money for Shambala through the Roar
Foundation while continuing to pursue her acting career.
Hedren's History of Headaches
Hedren began experiencing severe and persistent severe headaches in the mid-
1990's. In 2000, she sought treatment for them from Dr. Thomas Hopkins, an orthopedic
surgeon, who referred her to Dr. Lancelot Alexander, a neurologist. Dr. Alexander
prescribed medication for tension headache disorder, but Hedren's headaches continued
to progress.
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Hedren's medical expert at trial was Dr. Nicholas Fuller, an anesthesiologist who
specializes in spinal pain management. Dr. Fuller testified that after Hedren saw Dr.
Alexander, she "continued to follow up with Dr. Hopkins." According to Dr. Fuller, at
some unspecified time Hedren went back to Dr. Alexander, who then concluded she
suffered from cervicogenic headaches. After Dr. Alexander prescribed "multiple
medication trials" that failed, he sent Hedren back to Dr. Hopkins, who at that point
considered treating her headaches with surgery.
In 2005, Dr. Hopkins referred Hedren to Dr. Fuller, who noted in a written report
to Dr. Hopkins that Hedren's headache condition had been successfully treated with
"bilateral C4-C5 and C5-C6 foraminal [nerve root block] injections approximately three
years ago." Dr. Fuller presumably was referring to injections that his colleague Dr.
Randy Rosen performed in 2002 with Dr. Fuller serving as anesthesiologist. In his report
dated May 13, 2005, Dr. Fuller diagnosed Hedren's headaches as cervicogenic and
indicated that repeat nerve root block injections had been performed that day.
After Hedren went through multiple spinal interventions and medication trials that
were unsuccessful in treating her headaches, Dr. Hopkins decided the potential benefits
of spinal surgery outweighed the risks. On April 10, 2006, he performed spinal fusion
surgery on Hedren. The surgery involved immobilizing her C4 through C7 neck
vertebrae by attaching a titanium plate to them with screws, causing the vertebrae to fuse
over time. Hedren testified that the surgery resulted in immediate relief from her
headache pain and was a miracle to her. She was free of headaches at a follow-up visit in
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May 2006, and a CT scan was scheduled for August to ensure that her spine was fusing
properly. Dr. Hopkins advised her not to work for two or three months after the surgery.
The Accident and Ensuing Injury
Shortly after her surgery, Hedren accepted a role in the television show Fashion
House. Dr. Hopkins approved her taking the role because it was not an action picture and
she would be playing a woman who was dying of cancer and used a walker. On June 22,
2006, Hedren was rehearsing and filming a scene for Fashion House at Stu Segal Studios
in San Diego. She was wearing a nightgown and slippers and was using a walker for the
scene. She noticed that water was dripping from the ceiling onto a carpeted area and that
the carpet was soaked. As she was rehearsing the scene approximately ten feet away
from the wet carpet, about a gallon of water fell from the ceiling onto her head. The
water was traveling at a speed of about 25 miles per hour when it struck Hedren, who
testified that it "felt like part of the ceiling had dropped on my head." She had to hold
onto her walker to maintain her balance and avoid falling. She described the experience
as a "terrible shock." The water that fell on her had accumulated on a plastic tarp under
the sound stage's plywood roof, possibly because a bird's nest was blocking a
condensation tube in the air conditioning system.
Immediately after the accident, Hedren wanted to continue working. However, at
the insistence of her coworkers and the advice of a doctor on the set, she went to a nearby
hospital for an x-ray. After being x-rayed at the hospital, Hedren returned to work. That
night her headache returned. She worked over thirteen hours the following day, which
was a Friday, and continued to suffer a headache that day and throughout the weekend.
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On June 26, 2006, she underwent a CT scan that Dr. Hopkins prescribed to determine
whether there was a problem with the spinal fusion he had performed. The scan showed
the fusion was good and the fusion site was not the source of Hedren's headache pain.
Dr. Hopkins told Hedren that he could not perform additional surgery on her to address
her headaches.
Hedren tried various treatments for her chronic headache pain after the accident,
including chiropractic, acupuncture, physical therapy, medications, botox injections, and
nerve block injections. She testified at trial, however, that she had continuously suffered
headaches since the accident in June 2006.
The Underlying Lawsuit
In October of 2006, Hedren retained Allen to file a personal injury lawsuit against
the owner and lessee of the sound stage where the accident occurred based on their
alleged negligence in failing to properly maintain the roof.1 Allen filed the complaint on
behalf of Hedren in March of 2007. Shortly before the trial readiness conference in the
case, Allen dismissed the lawsuit without prejudice without first obtaining an agreement
from the defendants to toll the statute of limitations. When Allen refiled the action about
1 Hedren and Allen stipulated that Corrigan Limited Partnership owned the sound
stage property and Stu Segall Productions leased the property. Kirkwood Productions
(Kirkwood) was the company that employed Hedren and rented the soundstage from Stu
Segall Productions to film scenes for Fashion House. Allen's opening brief on appeal
and Hedren's opening statement at trial reflect that Kirkwood Productions was named as a
defendant in the underlying action. Although it is not clear from the record, Allen's
opening brief and Hedren's opening statement at trial indicate that Allen dismissed
Kirkwood from the underlying action before he voluntarily dismissed the entire
complaint without prejudice with the intent of refiling it.
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a month later, the defendants filed a demurrer to the new complaint on the ground it was
barred by the statute of limitations. The trial court sustained the demurrer without leave
to amend and dismissed the action in October 2009.
The Present Malpractice Lawsuit
Hedren filed the present malpractice action against Allen in August 2009, seeking
to recover against Allen "the damages that she reasonably could have expected to have
recovered in the underlying lawsuit . . . , including but not limited to general damages for
pain, suffering, emotional distress, medical expenses past and future, lost earnings, lost
earnings capacity, past and future." At trial Allen conceded he was negligent in
dismissing the underlying action without a tolling agreement. Consequently, the trial
essentially involved trying the underlying case to determine what Hedren reasonably
could have expected to recover but for Allen's negligence.2 The jury returned a verdict
awarding Hedren total damages in the amount of $1,483,708, consisting of $213,400 for
past lost earnings; $170,000 for future medical expenses; $440,308 for future lost
earnings and lost earning capacity; $300,000 for past noneconomic loss, including
physical pain and mental suffering; and $360,000 for future noneconomic loss, including
2 " '[A] client claiming that his [her] attorney was negligent in connection with
litigation has the burden of proving that damages resulted, this burden involving, usually,
the difficult task of demonstrating that, but for the negligence complained of, the client
would have been successful in the prosecution or defense of the action in question.'
[Citation.] 'Thus the issue of liability includes not only a showing the attorney was
negligent but also a showing his [or her] negligence caused damage.' " (Sukoff v. Lemkin
(1988) 202 Cal.App.3d 740, 744.) Essentially, the plaintiff must try or retry the
underlying action in the malpractice trial. (Ibid.)
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physical pain and mental suffering. The court entered judgment on the verdict and
denied Allen's subsequent motion for new trial.
DISCUSSION
I. Refusal to Instruct on Superseding Causation
Allen contends the court committed reversible error by rejecting his proposed
special instruction on superseding causation. The proposed special instruction, entitled
"Independent Intervening Act," stated: "Where after a defendant's alleged wrongful act
or omission there occurs an independent intervening act or event which is not
foreseeable, or is otherwise extraordinary or not reasonably likely to occur, the alleged
act or omission of the defendant is not the legal cause of plaintiff's alleged damage." The
court rejected the proposed instruction on the ground there was no evidentiary basis for
an "intervening cause" instruction.
"A party is entitled upon request to correct, nonargumentative instructions on
every theory of the case advanced by him which is supported by substantial evidence.
The trial court may not force the litigant to rely on abstract generalities, but must instruct
in specific terms that relate the party's theory to the particular case." (Soule v. General
Motors Corp. (1994) 8 Cal.4th 548, 572.) In considering whether the trial court erred in
refusing a instruction, we view the evidence in the light most favorable to the
applicability of the instruction because a party is entitled to a requested instruction if the
evidence could establish the elements of the theory it presents. (Chanda v. Federal Home
Loans Corporation (2013) 215 Cal.App.4th 746, 755.) However, instructional error in a
civil case is not ground for reversal unless it seems reasonably probable that the error
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prejudicially affected the verdict. (Soule, at p. 580; Chanda, at p. 755.) In determining
whether instructional error was prejudicial, a reviewing court evaluates "(1) the state of
the evidence, (2) the effect of other instructions, (3) the effect of counsel's arguments, and
(4) any indications by the jury itself that it was misled." (Soule, at pp. 580-581, fn.
omitted.)
"[T]he defense of 'superseding cause[]' . . . absolves a tortfeasor, even though his
conduct was a substantial contributing factor [to the plaintiff's injury], when an
independent event intervenes in the chain of causation, producing harm of a kind and
degree so far beyond the risk the original tortfeasor should have foreseen that the law
deems it unfair to hold him responsible." (Soule, supra, 8 Cal.4th at p. 573, fn. 9.)
"[T]he fact that an intervening act of a third person is done in a negligent manner does
not make it a superseding cause if a reasonable [person] . . . would not regard it as highly
extraordinary that the third person so acted or the act is a normal response to a situation
created by the defendant's conduct and the manner in which the intervening act is done is
not extraordinarily negligent." (Stewart v. Cox (1961) 55 Cal.2d 857, 864.) In other
words, for third party negligence to constitute a superseding cause of an injury, the third
party's negligence must be "so highly extraordinary as to be unforeseeable." (Torres v.
Xomox Corp. (1996) 49 Cal.App.4th 1, 18-19.)3
3 CACI No. 432 entitled, "Affirmative Defense—Causation: Third-Party Conduct as
Superseding Cause" articulates the legal requirements of that defense as follows:
"[Defendant] claims that [he] is not responsible for [plaintiff]'s harm because of the later
misconduct of [a third party]. To avoid legal responsibility for the harm, [defendant]
must prove all of the following: [¶] 1. That [the third party]'s conduct occurred after the
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Allen contends the superseding cause of Hedren's injury that absolved the
underlying defendants of liability was the negligence of Hedren's employer Kirkwood in
failing to do anything about the water dripping onto the sound stage on a day with no rain
and directing Hedren and other employees to work as usual. Allen argues that a
reasonable person could find Kirkwood's conduct was highly unusual or extraordinary.
We disagree. Water dripping onto a floor from a ceiling or roof would not ordinarily
cause a reasonable person who does not own or control the premises to expect that a large
deluge of water falling from the ceiling is imminent or even likely to occur. A person
might reasonably surmise from such dripping that the roof or an air conditioning unit is
leaking, but there is no evidence in the record of any circumstance that should have put
the employees of Kirkwood on notice that a large amount of water had accumulated
above the plastic tarp covering the roof and was likely to suddenly burst through the tarp
above and fall onto the stage below. Accordingly, Kirkwood's continuing to rehearse and
film scenes on the sound stage despite the dripping water did not constitute conduct that
was so highly extraordinary as to be unforeseeable. Using the language of CACI No.
432, we conclude a reasonable person would not consider Kirkwood's continuing to use
the sound stage despite the dripping water as a highly unusual or an extraordinary
response to the situation. The trial court reasonably refused to instruct the jury on
conduct of [defendant]; [¶] 2. That a reasonable person would consider [the third party]'s
conduct as a highly unusual or an extraordinary response to the situation; [¶] 3. That
[defendant] did not know and had no reason to expect that [the third party] would act in a
[negligent/wrongful] manner; and [¶] 4. That the kind of harm resulting from [the third
party]'s conduct was different from the kind of harm that could have been reasonably
expected from [the defendant]'s conduct."
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superseding causation on the ground there was no evidentiary basis for such an
instruction.
II. Refusal to Instruct on Comparative Fault
Allen contends the court prejudicially erred by refusing to instruct the jury with
the following modified version of CACI No. 405 regarding comparative fault: "Joseph
Allen claims that Tippi Hedren's own negligence contributed to her harm. To succeed on
this claim, Joseph Allen must prove both of the following: [¶] 1. That Tippi Hedren was
negligent; and [¶] 2. That Tippi Hedren's negligence was a substantial factor in causing
her harm. [¶] If Joseph Allen proves the above, Tippi Hedren's damages are reduced by
your determination of the percentage of Tippi Hedren's responsibility. I will calculate the
actual reduction." The court refused this instruction on the ground there was insufficient
evidence to warrant it.
Allen contends the comparative fault instruction was warranted because there was
evidence that Hedren was standing on the rug where the ceiling was leaking just before
the accidentand that she performed two "stage falls" on the day of the accident even
though Dr. Hopkins had instructed her not to fall. Allen further argues the comparative
fault instruction was warranted because there was evidence that Hedren did not see Dr.
Hopkins until 55 days after the accident; she fell on her elbows and shoulders in 2010;
and she continued campaigning for Shambala at "a hectic pace" even though Dr. Hopkins
told her to slow down after her spinal fusion surgery.
We conclude the court correctly decided there was insufficient evidence to warrant
an instruction on comparative fault. The portions of the reporter's transcript that Allen
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cites as evidence that Hedren was standing on the rug where the ceiling was leaking
before the accident does not establish that she was standing on that spot at the time of the
accident. In any event, the evidence does not establish that the water that fell onto
Hedren broke through the plastic tarp covering the ceiling at the same place from which
the water was dripping before the accident. Hedren's accident reconstruction expert
testified that the location where the water was dripping onto the stage may not have been
the same location where Hedren was struck by the falling water. Even if there were
sufficient evidence to support a finding that Hedren was standing beneath the dripping
water at the time of the accident, it would not warrant a comparative fault instruction
because a reasonable person exercising due care would not reasonably foresee that
standing under a ceiling leak is likely to result in being struck by a sudden release of a
gallon of water from the ceiling.
The fact that Hedren executed two "stage falls" on the day of the accident is not
evidence of contributory negligence because the stage falls were not actual falls and there
was no evidence that they caused any injury to Hedren.4 (Williams v. Wraxall (1995) 33
Cal.App.4th 120, 132 [causation requires proof that the conduct in question was a
substantial factor in bringing about the plaintiff's harm].) Nor is there any evidence that
4 Hedren testified that a stage fall or "actor's fall" is performed in way that "you do
not hurt yourself." She explained: "It's how an actor prepares to do an action, that even
though it could be harmful, the way that you fall, you do not hurt yourself. And they had
a pad down there for me that was about that thick that I would eventually land on. But
how you do it is you fall and I braced my hand on the table, I braced my hand on the
bottom of the chair and they rolled over. I am not interested in getting hurt in any way.
I'm not a stunt woman, but they showed me how to do it and it was very successful."
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Hedren's waiting 55 days to see Dr. Hopkins contributed to her injury. Dr. Hopkins
ordered a CT scan of her cervical region a few days after the accident, and he reviewed
the scan and reported the results to Hedren. There was no evidence that Hedren's actually
seeing Dr. Hopkins sooner than she did after the accident would have lessened her injury.
Likewise, there was no evidence that Hedren's fall on her elbows and shoulders in 2010,
approximately four years after the accident, contributed to the chronic headache
condition that had been ongoing since the accident.
Finally, the evidence of Hedren's travel and activities following the accident did
not warrant a comparative fault instruction. Allen's assertion that Hedren campaigned for
Shambala at a "hectic pace" after the accident despite Dr. Hopkins's advising her to "slow
down" is more argumentative than evidentiary. The evidence does not show that Dr.
Hopkins told Hedren to "slow down" in a follow up visit from her April 2006 spinal
fusion surgery, as Allen suggests in his opening brief. The medical record that Allen
cites as supporting that suggestion contains the following statement by Dr. Hopkins in a
report dated September 14, 2006: "We have stressed that she needs to stay off planes and
in town for a minimum of three months post-injection in hopes of decrease in her
symptom complex and precluding surgical intervention." (Italics added.) Thus, Dr.
Hopkins advised Hedren, in so many words, to "slow down" after future injections she
would undergo in the hope of avoiding additional surgery.5 The evidence that Allen cites
5 Dr. Fuller testified that Dr. Hopkins referred Hedren to him in August 2006 and he
(Dr. Fuller) performed cervical facet injections on her in September or October 2006.
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as showing Hedren ignored that advice includes her testimony about a trip she took to
Africa in the summer of 2006, before Dr. Hopkins advised her to stay off airplanes, and
her testimony that she traveled to Chicago in October 2006 for an autograph convention
and attended autograph sessions in England, New Jersey, Florida, Chicago, and Oregon
in 2010 – three to four years after Dr. Hopkins advised her to stay off planes and in town
for a minimum of three months post injection. To the extent Hedren's October 2006
flight was contrary to Dr. Hopkins's advice, it did not warrant a comparative fault
instruction because there was no evidence that it contributed to her injury.
Thus, the court did not err in deciding there was insufficient evidence to warrant
an instruction on comparative fault. Even if we were to conclude there was sufficient
evidence to warrant the comparative fault instruction, we would find the court's refusal of
the instruction was harmless error because it is not reasonably probable that the jury
would have found that Hedren was negligent on the day of the accident, or that any of her
post-accident conduct that Allen cites as supporting the instruction was a substantial
factor in causing the harm she suffered.
III. Expert Testimony On Causation
At trial, Hedren's medical expert, Dr. Fuller, testified that the subject accident
caused the return of Hedren's chronic headache condition.6 Allen contends that Dr.
6 Hedren's counsel asked Dr. Fuller if he was "able to form an opinion as to whether
the incident of June 22, 2006 with the water on the set was, to a reasonable medical
certainty, the cause of [Hedren's] headaches coming back?" He answered: "I do believe
there's a direct causation regarding the water that fell on [Hedren] recreating her
cervicogenic headache."
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Fuller offered no foundation for that opinion and, therefore, Hedren failed to prove to a
reasonable medical probability that the subject accident caused the damages she
claimed.7
In reviewing a challenge to the sufficiency of the evidence to support a jury
verdict, we construe the evidence as favorably as possible in support of the verdict.
(Ogulin v. Jeffries (1953) 121 Cal.App.2d 211, Kasperian v. County of Los Angeles
(1995) 38 Cal.App.4th 242, 259.) "The law is well settled that in a personal injury action
causation must be proven within a reasonable medical probability based upon competent
expert testimony. Mere possibility alone is insufficient to establish a prima facie case."
(Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) "There can be
many possible 'causes,' indeed, an infinite number of circumstances which can produce
an injury or disease. A possible cause only becomes 'probable' when, in the absence of
other reasonable causal explanations, it becomes more likely than not that the injury was
a result of its action." (Id. at p. 403, italics added.)
Allen cites the rule that " '[w]here an expert bases his conclusion upon
assumptions which are not supported by the record, upon matters which are not
reasonably relied upon by other experts, or upon factors which are speculative, remote or
conjectural, then his conclusion has no evidentiary value. [Citations.] In those
7 Allen does not contend on appeal that the insufficiency of Dr. Fuller's testimony to
prove causation in the underlying action requires judgment in his favor, and he did not
move for judgment notwithstanding the verdict. Rather, he contends that because Dr.
Fuller's causation opinion lacks foundation, there is no substantial evidence to support the
jury's large award of noneconomic damages.
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circumstances the expert's opinion cannot rise to the dignity of substantial evidence.' "
(Borger v. Department of Motor Vehicles (2011) 192 Cal.App.4th 1118, 1122 (Borger),
quoting Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135
(Zuckerman.)
Borger and Zuckerman support the proposition that to have evidentiary value, an
expert's opinion must be based on matters that are reasonably relied upon by an expert in
forming an opinion on the subject in question, are not precluded by law from
consideration, and do not otherwise constitute an improper basis for an opinion. (Evid.
Code, §§ 801-803.) They do support the proposition that an expert must in every case
provide a detailed explanation for an opinion. To the contrary, "[w]here an expert
witness, such as a medical witness, bases his scientific opinion on his observation, such
as an attending or treating physician observing his patient, he need not state the reasons
for his opinion—the facts upon which they are based—to render his opinion competent
and probative evidence." (Lumbermen's v. Mut. Cas. Co. v. Ind. Acc. Com. (1946) 29
Cal.2d 492, 500 (Lumbermen's); People v. Mendibles (1988) 199 Cal.App.3d 1277, 1293
[an expert medical witness is qualified to give an opinion of the cause of a particular
injury on the basis of the expert's deduction from the appearance of the injury itself];
Hart v. Olson (1945) 68 Cal.App.2d 657, 664 [when a medical expert's opinion is based
on what the expert has observed it is not necessary that the expert state the facts on which
he or she based the opinion].) When a treating physician renders an expert opinion, "it
may be assumed [he or she] made observations and acquired sufficient facts as a basis for
[the opinion]." (Lumbermen's, supra, 29 Cal.2d at p. 501.)
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Here, Hedren's medical expert Dr. Fuller was one of her treating physicians before
and after the accident. As such, he observed her condition in 2005 before her fusion
surgery. In August 2006, Dr. Hopkins referred Hedren to Dr. Fuller for cervical facet
injections "in an attempt to diagnose and treat [her] persistent headache[,]" and Dr. Fuller
performed the injections in September or October of 2006, after the subject accident but
before Hedren filed the underlying action. In 2008, Dr. Fuller participated as the
anesthesiologist for a diagnostic surgery performed on Hedren known as a discogram.8
Because Dr. Fuller rendered an expert opinion about a medical problem he had been
involved in treating, it may be assumed that he made observations and acquired sufficient
facts as a basis for his opinion. (Lumbermen's, supra, 29 Cal.2d at p. 501.)
Dr. Fuller explained to the jury that a "pain generator" for a headache is "the
structure that is eliciting the patient's pain" and that problems in the neck can generate a
headache because the "fifth cranial nerve provides facial sensation, [and] it also has some
of its motor neurons in the upper cervical spine." Based in part on his treatment and
observation of Hedren in August 2006, he testified that the pain generator or source of
her headache pain was her upper cervical region, and that cause of the pain was "related
to the water falling upon her." Given Dr. Fuller's testimony as an expert witness and
8 Dr. Fuller explained that a discogram is a diagnostic surgery "where you insert a
needle as close as possible interpreting the pain signals. Once you pressurize those discs,
a normal, healthy disc will be painless. Very similar to a jelly donut, all the jelly will
stay inside the donut. A cracked disc you'll see the contrast agent go through one of the
cracks where the jelly would leak out. And more likely and more often than not that's
associated with severe pain which, unfortunately, Tippi had to endure. She recorded
predominant pain."
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treating physician who had observed Hedren's condition before and after the accident,
and the evidence that a gallon of water traveling at a speed of 25 miles per hour fell onto
Hedren and felt to her "like part of the ceiling had dropped on [her] head," the jury could
reasonably find that the trauma of the water striking Hedren caused pain to be generated
from the neck vertebrae above her surgically fused vertebrae and resulted in the
recurrence of her chronic headaches.
When a treating physician renders an expert opinion about a medical condition
based on his or her observation of the patient and does not expressly articulate the facts
upon which the opinion is based, it is appropriate to look to cross-examination to inform
the jury of any weakness in the foundation for the expert's opinion. (Lumbermen's,
supra, 29 Cal.2d at pp. 500-501.) Although Allen's counsel extensively cross-examined
Dr. Fuller, he never asked Dr. Fuller to explain the basis for his opinion that the water-
falling accident caused Hedren's current chronic headache condition. As the
Lumbermen's court stated regarding an expert opinion's report on the cause of an injury in
the context of proceedings before the Industrial Accident Commission (predecessor to the
Workers Compensation Appeals Board),9 "[t]he failure of the report to state the reason
for the expert opinion does not strip it of probative value to the point where it is not
substantial evidence supporting the decision of the commission. It goes to the weight of
such evidence, a matter within the exclusive province of the commission as the arbiter of
9 See Sampson v. Parking Service 2000 Com, Inc. (2004) 117 Cal.App.4th 212, 225.
18
fact. Petitioners had the right to cross-examine the witnesses if they saw fit."
(Lumbermen's, at p. 500.)
Similarly, Dr. Fuller's failure to explain (because he was never asked to explain)
the physical mechanism by which the water-falling accident caused the return of Hedren's
headaches does not completely strip his causation opinion of probative value to the point
that it is not substantial evidence supporting the jury's causation finding. Bearing in mind
that we must we construe the evidence as favorably as possible in support of the verdict,
we conclude that Dr. Fuller's causation opinion, viewed in context of the entire record,
sufficiently supports the jury's determination that the subject accident caused the return of
Hedren's chronic headache condition.
IV. Expert Testimony on Future Lost Earnings and Earning Capacity
Allen contends the court erred in admitting speculative expert testimony
concerning lost future earnings and earning capacity. He further contends that because
there was no competent evidence of lost future earnings or earning capacity, the court
erred in instructing the jury that it could award such damages.
At trial, Hedren's talent agent Carlyne Grager testified as an expert witness about
Hedren's damages for future lost earnings. Grager testified that her talent agency
specializes in obtaining work for "legends"—i.e., senior citizen actors "who are names,
who have been stars"—and that the market for such actors in Hollywood had grown
substantially in the last few years and would continue for the next ten years. She has
clients who work into their 90's, including Carol Channing. Grager testified that there is
demand for Hedren in Hollywood and that "it's daily we're getting inquiries for her
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services." Hedren's publicist referred Hedren to Grager because Grager was "strong on
marketing," and it was "crucial to [Hedren's] career to be able to work within the next 10
to 15 years, that immediately she get an agent who understands and recognizes the need
to build up her fan base, regenerate her audiences, [and] make people aware that she was
a viable dynamic entity with all of the functions and skill set to be able to play upcoming
roles."
In 2011, the year the trial was held, Hedren played a role in a feature film starring
Jessie Eisenberg and Jason Ritter and completed a film entitled Jane Mansfield's Car
produced by Billy Bob Thornton and starring Dennis Quade, Kevin Bacon, and John Hurt
who played the husband of Hedren's character. At the time of trial, there were three or
four films in preproduction in which Hedren had been offered starring roles. She had
also been offered a part in a television series produced by and starring Betty White.
Grager testified that Hedren's headache condition would cause Hedren to lose a minimum
of 30 days of television acting work per year that would pay a minimum of $2,500 and up
to $10,000 to $20,000 per day.
Based on Grager's testimony, Hedren's economist expert Peter Formuzis, testified
regarding the amount of Hedren's past and future economic losses. In calculating
Hedren's annual lost income, Formuzis used the reduced figure of $2,000 per day as the
amount Hedren would be paid for television work and assumed Hedren would continue
to work eight and a half more years until she reached the age of 90. Multiplying daily
pay of $2,000 times 30 days of lost television work per year and subtracting a ten percent
agent fee from the resulting figure of $60,000, Formuzis testified that Hedren's past lost
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earnings were $275,850 and her future lost earnings, reduced to present value, were
$440,308.
Allen contends the court should have excluded Formuzis's testimony as
speculative because it was based entirely on Grager's opinions that plaintiff would have
been working 30 more days per year in television but for her injury10 and will work until
she reaches the age of 90. Allen complains that Grager has no expertise in medicine or
disability, and that there was no basis for using television work as a basis for determining
damages because Hedren is primarily a film actress. Thus, Allen's essential complaint
concerning Hedren's lost earnings damages goes to Grager's testimony rather than
Formuzis's. Allen objected to Formuzis's testimony by way of a motion in limine,and
objected to Grager's opinion about Hedren's lost earnings during her direct examination at
trial on the grounds it was speculative and lacked foundation. The court overruled those
objections.
We review any ruling by the trial court on the admissibility of evidence for abuse
of discretion. (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 332.) A trial court abuses
its discretion only when its ruling exceeds the bounds of reason, all circumstances being
considered. (Ibid.)
We find no abuse of discretion in the court's admission of Grager's opinion
testimony upon which Formuzis based his calculations of Hedren's lost earnings.
Grager's overall testimony established that she was qualified as an expert. She testified
10 Allen also attributes this opinion to Hedren's counsel.
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that she was a theatrical talent agent and agency owner who specialized in representing
very young and senior actors, and was "the only agency in the Hollywood market that
[has] that particular clientele." In addition to Hedren, she represented Rip Taylor, Carol
Channing, and other senior citizen actors. She testified: "[I]t is my forte to know the
roles that are available for the senior market and generally over the years, those
roles . . . are pretty substantial, but more so in the last two to three years in Hollywood.
. . . I have really tailored my agency in that direction to be able to focus and concentrate
on all the extra work that is coming in these days, more so based on the . . . senior age
category and name recognition of star talents." Her ensuing testimony revealed her
extensive knowledge of the Hollywood film and television industry and market for senior
actors, and showed that she was qualified to render an opinion as to Hedren's earning
potential as an actress over the eight and one-half-year-period following the trial.
Regarding Allen's objection to Grager's opinions as being speculative and lacking
foundation, we note that "[o]nce it is established that a witness has adequate credentials
to qualify as an expert, questions as to the degree of his or her expertise go to weight not
admissibility." (Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102,
1120-1121.) "Any flaws in an expert's opinion may be exposed through the adversary's
own evidence or in cross-examination. Those imperfections do not make the expert's
sources so unreliable or speculative as to lead to rejection. So long as foundational
reliability is met, the strength of an expert's assumptions affects the weight rather than the
admissibility of the opinion." (Id. at p. 1121.) Based on her experience expertise in
obtaining work for Hollywood "legends" like Hedren, Grager was qualified to render an
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opinion as to the amount of work she could likely obtain for Hedren in the coming
decade, and how much work Hedren would likely be forced to forego as a result of her
headache condition. Any flaw in Grager's opinion, such as the inherent uncertainty of
obtaining future work that most people in the entertainment industry face, goes to the
weight of her testimony rather than its admissibility.
Because we find no abuse of discretion in admission of Grager's opinion
testimony, we conclude it was well within the court's discretion to admit Formuzis's
expert testimony regarding the dollar amount of Hedren's lost future earnings and earning
capacity, based on Grager's testimony. Accordingly, the court did not err in instructing
the jury that it could award such damages.11
V. Total Award of Damages
Allen contends the jury's total award of damages in the amount of $1,483,708.00 is
excessive as a matter of law. He reiterates that the evidence supporting the award of
damages for lost earnings and lost earning capacity was speculative, and contends the
award of $170,000 for future medical expenses was also speculative because it represents
the cost of bilateral rhizotomy treatments, which Dr. Fuller testified would have to be
repeated every year even though Hedren had not yet undergone that treatment.12 Finally,
11 The special verdict form did not distinguish between future lost earnings and
earning capacity; it directed the jury to determine the amount of future "[l]ost
earnings/earning capacity" as a single item of damages.
12 A rhizotomy is a heat treatment for pain involving use of a radio frequency needle
to clip small branch nerves to prevent them from transmitting pain signals. Dr. Fuller
answered affirmatively when Hedren's counsel's asked, "And basically in very layman's
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he contends the jury's award of $660,000 for pain and suffering exceeds the bounds of
reason.13
"Civil Code section 3283 states in part that '[d]amages may be awarded . . . for
detriment . . . certain to result in the future.' Courts have interpreted this to mean that a
plaintiff may recover if the detriment is 'reasonably certain' to occur. [Citations.] It is for
the jury to determine the probabilities as to whether future detriment is reasonably certain
to occur in any particular case." (Garcia v. Duro Dyne Corp. (2007) 156 Cal.App.4th 92,
97.) "There is no requirement that a plaintiff prove with certainty the extent of the harm
he [or she] has suffered as a result of the defendant's conduct. [Citation.] Although ' "[i]t
is desirable . . . that there be definiteness of proof of the amount of damage as far as is
reasonably possible [,] [i]t is even more desirable . . . that an injured person not be
deprived of substantial compensation merely because he [or she] cannot prove with
complete certainty the extent of harm he [or she] has suffered." ' " (Id. at pp. 98-99.)
"The power of an appellate court to review the trier of fact's determination of
damages is severely circumscribed. An appellate court may interfere with that
determination only where the sum awarded is so disproportionate to the evidence as to
terms you're sort of burning away the nerves so that . . . the message doesn't jump
anymore?"
13 In his opening brief, Allen inadvertently reversed the jury's awards of economic
and noneconomic damages, erroneously referring to the award of economic damages as
being $660,000 and the award of noneconomic damages as being $800,000. As noted,
the jury awarded noneconomic damages in the total amount of $660,000, consisting of
$300,000 for past noneconomic loss, including physical pain and mental suffering, and
$360,000 for future noneconomic loss, including physical pain and mental suffering. The
jury's total award of past and future economic losses was $823,708.
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suggest that the verdict was the result of passion, prejudice or corruption [citations] or
where the award is so out of proportion to the evidence that it shocks the conscience of
the appellate court." (Uva v. Evans (1978) 83 Cal.App.3d 356, 363-364.)
Allen relies on Scognamillo v. Herrick (2003) 106 Cal.App.4th 1139, in arguing
that the evidence Hedren will have to undergo two rhizotomy treatments annually to treat
her chronic headaches is too speculative to support the jury's award of future medical
expenses. In Scognamillo, the trial court in a default judgment awarded the plaintiff
damages for a second back surgery that possibly would be unnecessary, depending on the
result of a first surgery. The Scognamillo court concluded the testimony regarding the
necessity of the second surgery "could hardly have been couched in more speculative
terms" because that testimony indicated "one surgery might sufficiently alleviate
plaintiff's problems, or that a second surgery might be deemed to not be worth the risk."
(Id. at p. 1151.) The Scognamillo court concluded "the trial court did not have before it
sufficient evidence, based on a reasonable medical probability, to [award medical
expenses related to a second surgery]." (Ibid.)
Scognamillo is inapposite. Here, there was substantial evidence that Hedren
would continue to suffer from chronic cervicogenic headaches and that rhizotomies
would provide relief from the pain she was suffering. The jury was entitled to believe
Hedren's testimony that her headaches had continued from the time of the accident in
June 2006 to the present. Dr. Fuller testified that Hedren underwent nerve-block
injections that established that she was a candidate for rhizotomies, and that a rhizotomy
can provide long lasting relief from upper cervical pain. He recommended Hedren
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undergo that treatment, stating: "[W]e anticipate getting [Hedren] excellent relief with
the rhizotomy . . . ." He explained, however, that a rhizotomy would have to be repeated
at 12-month intervals at a cost of about $20,000 each year because the clipped branch
nerves regenerate over time. Based on Hedren's and Dr. Fuller's testimony, the jury could
reasonably find that Hedren's severe chronic headache condition was reasonably certain
to continue and that Hedren would have to undergo rhizotomy treatments to obtain relief.
In considering whether the noneconomic damages awarded to Hedren are
excessive, we are mindful that " 'a reviewing court must give considerable deference in
matters relating to damages to the jury in the first instance and to the trial court
secondarily.' " (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1067. The trial court's
denial of a motion for new trial on the ground of excessive damages is entitled to
deference on appeal because the trial judge was present at the trial and was necessarily
more familiar with the evidence. (Ibid.)
In denying Allen's motion for new trial on the ground of excessive damages, the
trial court correctly stated that "with regard to non-economic damages including pain and
suffering, what is reasonable and proper compensation 'is a matter on which there
legitimately may be a wide difference of opinion.' " (Citing Roedder v. Rowley (1946) 28
Cal.2d 820, 823.) The court concluded the jury's award did not fall "outside this
necessarily broad range[,]" noting there was "testimony that . . . Hedren suffers frequent
and debilitating headaches which may continue indefinitely." According due deference
to jury's award and the trial court's assessment of the award in ruling on the motion for
new trial, and considering the substantial evidence in the record that as a result of the
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subject accident Hedren has suffered daily from severe headaches that limit her ability to
take acting work and will require her to undergo invasive rhizotomy treatments to obtain
relief from the pain, we cannot say the award of noneconomic damages is so
disproportionate to the evidence that it shocks the conscience and suggests passion or
prejudice on the part of the jury.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
NARES, J.
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