Courtney v. Daimler Trucks North Am. CA2/1 ( 2022 )

Filed 8/18/22 Courtney v. Daimler Trucks North Am. CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not
been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
SHANISHA COURTNEY et al., B304945
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC615223)
v.
DAIMLER TRUCKS NORTH
AMERICA LLC,
Defendant and Appellant.
APPEAL from orders and judgment of the Superior Court of
Los Angeles County, Michael P. Vicencia, Judge. Reversed in part
and affirmed in part.
The Homampour Law Firm, Arash Homampour, Corey
Arzoumanian, Nareen Touloumdjian; Law Offices of David H.
Greenberg, David H. Greenberg, Emily A. Ruby; Esner, Chang &
Boyer, Stuart B. Esner and Kevin K. Nguyen for Plaintiffs and
Appellants Shanisha Courtney, Raymond Courtney and Martel
Courtney.
Polsinelli, David K. Schultz; Nelson Mullins Riley &
Scarborough, Philip R. Cosgrove and Ryan E. Cosgrove for
Defendant and Appellant Daimler Trucks North America LLC.
__________________________
Shanisha, Raymond and Martel Courtney (collectively,
plaintiffs) brought a wrongful death action against Daimler Trucks
North America LLC (Daimler), which designed the heavy-duty
tractor-trailer truck that plaintiffs’ mother, Cornelia Wilson, was
driving when she was killed during a single-vehicle accident and
ensuing fire. Plaintiffs’ lawsuit alleged strict product liability and
negligent design defect claims on the theory that Wilson had no
chance of surviving the accident because the truck’s fuel tanks
were positioned where they were prone to breach in a collision,
increasing the risk of a fire. The jury found for plaintiffs and
concluded that driver Wilson had not been negligent.
Daimler moved for a new trial and judgment notwithstanding
the verdict (JNOV) based on insufficiency of the evidence,
evidentiary and jury selection errors, and attorney misconduct.
The trial court granted a partial new trial on the issue of Wilson’s
comparative negligence, but otherwise denied Daimler’s motions.
With respect to comparative negligence, Daimler bore the
burden of establishing what may have caused Wilson’s truck to
leave the road. Evidence was required, not hypotheses. Given
the absence of evidence, no reasonable finder of fact could have
concluded that Wilson was comparatively negligent. Accordingly,
the trial court’s order granting a partial new trial on that basis was
erroneous.
With respect to JNOV, one of plaintiffs’ experts, whose
credentials were unimpeached, testified that Daimler’s fuel tanks
on the 2009 Columbia (“Columbia”) were placed in an unsafe
2
location, in contradistinction to Daimler’s evidence that its fuel
tanks complied with industry standards and were designed with
due care. Because substantial evidence supports the jury’s verdict,
we affirm the trial court’s denial of JNOV.
As to the cause of the fire and explosion, Daimler claims the
court improperly admitted portions of an expert’s testimony that
went beyond the scope of what plaintiffs had previously disclosed.
However, Daimler failed to abide by the trial court’s pretrial
instructions regarding this evidentiary challenge, and has provided
us with an insufficient record for meaningful appellate review. In
any event, the trial court carefully considered Daimler’s objection
before allowing this testimony, which Daimler fully impeached and
rebutted during trial.
As to the cause of Wilson’s death, Daimler designated no
expert witness to testify and presented no evidence on this point.
During plaintiffs’ case, the coroner testified that based upon lethal
levels of carboxyhemoglobin and airway stains, Wilson died of
smoke inhalation from the fire. Notwithstanding, Daimler contends
the trial court erred in excluding expert testimony that would have
raised doubts about the procedures used by the deputy coroner to
rule out brain injury, heart failure or other possible causes of death.
In excluding this testimony, the trial court concluded that
theoretical possibilities as to Wilson’s cause of death, unsupported
by affirmative evidence, had minimal probative value that was
substantially outweighed by the danger of jury confusion and
speculation.
In reviewing these and other evidentiary rulings, we are
cautioned to take a circumspect approach that affords considerable
latitude to trial court rulings made on the scene and in the heat
of the trial. Here, the challenged trial court rulings were neither
arbitrary, capricious, nor patently absurd, and resulted in no
3
manifest miscarriage of justice. Accordingly, a new trial on these
bases is unwarranted.
While plaintiffs’ attorney did commit misconduct during
closing argument, our independent review of the record
demonstrates that the objectionable statements were not
prejudicial. The trial court was in full control of the closing
arguments, quickly responded to objections, and very likely would
have admonished plaintiffs’ counsel on the spot had a timely
objection been raised. But no contemporaneous objection was made.
Instead, Daimler’s experienced counsel elected to respond on his
own behalf, which he did eloquently and with vigor. The trial court
did not abuse its discretion in declining to admonish the jury at
the conclusion of the arguments once Daimler’s counsel had already
and ably responded.
We disagree with Daimler’s contention that this trial was
“error-marred.” To the contrary, the record demonstrates it was
conducted by two skilled and experienced trial lawyers in front of a
very knowledgeable judge, who ably managed the proceedings and
carefully considered the arguments of each side before making his
decisions. It is also unlikely that Daimler would have received a
better outcome had it had the benefit of the disputed evidentiary
rulings.
Accordingly, while we reverse the trial court’s partial new
trial ruling, in all other respects we affirm the orders and judgment.
FACTS AND PROCEEDINGS BELOW
A. Summary of the Evidence
It was undisputed at trial that Wilson became incapacitated
before the accident, as she neither attempted to brake as her truck
went off the road and drove through a small grove of trees nor
steered to avoid hitting anything. No party attempted to establish
the cause of Wilson’s incapacitation.
4
Cesar Avalos offered the only eyewitness account of
circumstances leading to the fire and explosion. While driving
on the freeway on the night of the accident, Avalos noticed a
significant amount of dust on the road, scanned the area for the
source of the dust, and saw the silhouette of a tractor-trailer truck
off the side of the freeway. He stopped on the shoulder and further
observed that the truck was stopped in the middle of a brush area
and had no lights on. The scene was dark, but Avalos noticed a
small flicker of light under the tractor. Three to four seconds after
Avalos noticed the flicker of light, the truck exploded. He described
the explosion as resembling a big mushroom tall enough to easily
clear the trees in the area, with the cab “engulfed” in a “really hot
red, orange” fire.
The remaining details of the accident were the subject
of much debate. The parties presented extensive conflicting
evidence, primarily in the form of expert opinion, regarding what
happened after the truck drove off the road and, more specifically,
how the fire ensued.
Robert Banta, Daimler’s fire causation expert, an automotive
engineer who had worked for Chrysler for 40 years and testified
around 150 times as a fire causation expert for truck
manufacturers, testified that the damage to a fluid reservoir on
Wilson’s Columbia caused flammable power-steering fluid to spill
onto hot engine components, causing “a hot-surface ignition of the
fluids” that “went to the ground, under the truck and was observed
later by [Avalos] as a small fire under the truck.” Eventually,
the small ground fire heated the spilled diesel fuel, which ignited,
“creat[ing] a very big cab fire.”
Banta testified that “there [was] no element of atomization”
in the fire. According to Banta, had the diesel fuel been atomized,
the larger fire would have ignited almost immediately upon impact.
5
Banta also testified that the evidence was inconsistent with the
testimony of Joseph Romig, plaintiffs’ thermodynamics expert, that
compression of the left fuel tank caused fuel to atomize and explode.
Robert Caldwell, plaintiffs’ accident reconstruction expert,
testified that after the tractor’s left front corner collided with a tree,
a series of chain reactions caused the left fuel tank to compress and
the right fuel tank to be breached.
Romig testified that the fire resulted from fuel emitted from
the left fuel tank when it was compressed.1 Romig explained that,
as the tank was compressed, a pressurized stream of diesel fuel was
emitted through a process he described as “atomization.” Romig
testified that other leaked fluids had landed on hot metal, causing
friction or electricity that ignited the immediately flammable
atomized diesel-air mixture. According to Romig, only this
mechanism could explain the mushroom cloud or “fireball” that
Avalos witnessed.
Romig also discussed, over Daimler’s objection, “an incident
in New Orleans that ha[d] a similar event of diesel fuel ejection
and atomization that . . . illustrate[d] what [he] [was] describing.”
Romig was familiar with the incident because he had investigated
it, and in this capacity had also obtained security camera footage
of the incident, portions of which he played for the jury.
The video depicted a “tractor-trailer truck . . . carrying
gasoline [and] diesel”2 that “had saddle-mounted diesel tanks”
colliding with a “big” “electric light sign.” Romig paused the video
at several points and narrated for the jury what they were seeing.
He described how, after “you see the sign knock down,” “you see
1 The left fuel tank was not found or inspected.
2 Although the truck transported gasoline, it was powered by
diesel.
6
kind of a gray mist developing in the area . . . between the tractor
and the trailer” which was “diesel fuel coming from the side tanks.”
Romig offered his opinion that “when [the tractor-trailer in
the video] knocked the electrical sign down, there were lots of high
voltage wires that would be associated with the sign. And as the
mist came down, an electrical ignition occurred of the flammable
mist.” Romig testified that “this video show[ed] the jury” that
atomization occurred in Wilson’s accident too. He disagreed with
Banta’s opinion, ante, that spilled diesel fuel was ignited by a “pilot
flame” on the ground.
Finally, Romig rebutted Banta’s opinion that spilled diesel
fuel was ignited by a ground fire by demonstrating through a fuel
lighting test (a video of which was played for the jury) that a small
heat source such as a ground fire (or in Romig’s experiment a
barbeque lighter) will not ignite diesel fuel that has spilled on the
ground, because liquid diesel fuel does not burn.
Romig admitted on lengthy cross-examination that the
New Orleans incident differed from Wilson’s accident in several
respects, and that the pilot flame involved a mixture of fuels,
including diesel fuel and hydraulic fluids. His direct trial testimony
took 17 pages of the reporter’s transcript, and cross-examination
spanned 31 pages.
Greg Stephens, Daimler’s accident reconstruction expert,
opined that the tree struck by Wilson ripped down the left side of
the tractor, pushing back the bumper structure, leaf-spring, and
axle, which moved several parts of the tractor rearward into the left
fuel tank and damaged the power-steering fluid reservoir.
Plaintiffs’ evidence regarding the design of the truck Wilson
drove, the 2009 Columbia, focused primarily on the placement
of the fuel tanks toward the front of the vehicle, and possible
alternative designs that, according to plaintiffs’ experts, would have
7
been safer and would have made it possible for Wilson to survive
the accident. Daimler’s competing evidence regarding the design of
the Columbia was based upon extensive precautions that had been
taken to assure the safety of the design, and the fact that the design
met all applicable safety guidelines and had passed all required
inspections.
Anthony Moore, Daimler’s corporate representative who
had worked at Daimler and its predecessors for almost 40 years,
testified about the design and development of the Columbia.
He stated that Daimler performed safety research before design
and development commenced, and participated with other large
manufacturers in a published study “under contract with the
government.” For the fuel-tank system, Moore said Daimler
incorporated many design features recommended by that research.
The resulting design of the Columbia includes two side-
mounted 100-gallon fuel tanks. Moore testified no other Class-8
heavy-duty truck sold in the United States is designed with diesel
fuel tanks in any of the positions that plaintiffs’ experts posited
would be safer (namely, between the frame rails or behind the cab).
Moore admitted, however, that in tank tests performed in 1998 and
1999, the tanks repeatedly ruptured and failed, and that there were
no subsequent tests showing that the tanks would not fail.
The Columbia’s front structure was redesigned in 2007,
two years before Wilson’s truck was manufactured. Daimler’s tests
showed it passed federal requirements, including fuel tank crash
tests. After reviewing Daimler’s 35 miles per hour frontal crash
test, plaintiffs’ design expert, Mark Pozzi, conceded there was no
leak, tear or rupture of the fuel tanks during these tests.
James Jones, another expert for plaintiffs, offered opinions
on whether “there was a way [the axle on the Columbia] could’ve
been restrained” after becoming “dislodged” so it would not move
8
rearward and impact the side-mounted fuel tanks in a collision
like the one at issue. He offered a “very crude conceptual design”
in which a tether would be attached to the axle and would act “like
a catcher’s mitt slow[ing] down a baseball.” Jones also developed
and testified regarding a second axle tether design that attempted
to address some possible difficulties with the first proposed tether
design that Moore had identified at Moore’s deposition.
Michael Pozzi, plaintiffs’ safety expert, testified it has been
“known for over 50 years, [that] you want to not have your fuel tank
at the perimeter of the vehicle,” and that “having exposed fuel tanks
in this type of truck [has] been known to be unsafe or dangerous
for . . . [¶] . . . [¶] [d]ecades.” According to Pozzi, it was “obvious”
that such an alternative design—namely, locating the fuel tank
behind the cab—“was accepted elsewhere in the industry.”
Timothy Dutra, the coroner who performed Wilson’s autopsy,
testified that Wilson died from carbon monoxide intoxication based
upon her carboxyhemoglobin level, which was within the lethal
range, and stains in her airway consistent with smoke inhalation.
Dutra conducted only a gross autopsy on Wilson, including
an “external inspection” of the skull that revealed no fractures and
a visual inspection of the brain after removing the top of the skull.
He found no “traumatic injuries that would have accounted for
[Wilson’s] death” and no evidence of brain hemorrhage, fracture
or dislocation. On this basis, Dutra “exclude[d]” “any brain injury”
“as a cause of death.” Dutra’s autopsy neither revealed why Wilson
drove off the freeway nor identified any evidence that she suffered a
heart attack.
Daimler designated no expert witness to testify about the
cause of Wilson’s death.
9
B. Plaintiffs’ Closing Argument
Weeks before trial started, the court had granted Daimler’s
motion in limine to preclude plaintiffs from attempting to appeal
to the jury’s passion and prejudice by referring to Daimler’s size,
resources or wealth. Nevertheless, during closing argument
plaintiffs’ counsel commented indirectly on Daimler’s wealth and
size. He also repeatedly disparaged the character and motives of
Daimler and its witnesses.
After closing arguments, the court chastised plaintiffs’
counsel for the overall disrespectful tone of his argument, and
concluded, sua sponte, that counsel had violated the motion in
limine ruling regarding Daimler’s wealth and size. After a liability
verdict was reached, the court admonished the jury not to consider
Daimler’s wealth and size as it deliberated on damages.
C. Verdict
After deliberating for approximately two and a half hours,
the jury found Daimler liable to plaintiffs on both the strict
liability and design defect causes of action. After deliberating for
another 40 minutes, the jury awarded plaintiffs damages totaling
$12 million. The jury voted 10 to 2 on questions regarding whether
“the risks of [the] . . . Columbia truck’s design outweigh the
benefits” and whether Daimler was “negligent in designing” the
truck. The jury voted 9 to 3 on questions regarding whether the
Columbia’s design was a substantial factor in causing Wilson’s
death.
The verdict form also required the jury to specifically find
whether Wilson had been negligent in connection with the accident.
The jury voted 10 to 2 that she had not been negligent.
D. Post-Trial Motions
Daimler filed motions for JNOV and a new trial based on
purported errors in jury selection, several evidentiary rulings,
10
plaintiffs’ counsel’s misconduct, and the jury’s finding that Wilson
had not been negligent.
The court denied JNOV but partially granted a new trial,
concluding that the jury’s finding that Wilson had not been
negligent was “contradicted by the only evidence that she failed to
control the movement of her vehicle.” Specifically, the court noted
that “[n]o evidence was presented as to why [Wilson] failed to
control her vehicle except plaintiff[s’] reconstruction expert’s
opinion that decedent must have been ‘incapacitated’ when she
drove off the road. The coroner testified that he saw no evidence of
physical maladies beyond the trauma of the ensuing accident.” The
court therefore granted a new trial limited to the issues of Wilson’s
negligence, whether any such negligence was a contributing cause
of plaintiffs’ harm, and if so, apportionment.
Daimler appealed the judgment and the order denying JNOV
and only partially granting a new trial. Plaintiffs cross-appealed
the order granting a partial new trial.3
DISCUSSION
I. JNOV Was Properly Denied Because Substantial
Evidence Supports the Design Defect Verdict
Daimler contends the design defect verdict must fail because
no evidence shows that Daimler “failed to use the amount of care in
designing [the Columbia] that a reasonably careful designer or
manufacturer would have used in similar circumstances.” (Howard
v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 430
(Howard); Miller v. Los Angeles County Flood Control Dist. (1973) 8
Cal.3d 689, 703 (Miller) [identifying “standard of care applicable” in
3 Plaintiffs also filed a protective cross-appeal as to any
portions of the judgment adverse to them. Daimler then likewise
filed a protective cross-appeal from the judgment.
11
the industry as an “essential element of [plaintiffs’] [design defect]
case”].) We disagree.
A trial court must grant a JNOV motion if there “is no
substantial evidence in support” of the verdict. (Sweatman v.
Department of Veterans Affair (2001) 25 Cal.4th 62, 68.) We must
determine whether there is evidence that is “ ‘ “reasonable in
nature, credible, and of solid value; [constituting] ‘substantial’ proof
of the essentials which the law requires in a particular case.” ’ ”
(DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329, 336.)
To do so, we first resolve all explicit conflicts in the evidence and
presume all reasonable inferences in favor of the verdict. (Kuhn v.
Department of General Services (1994) 22 Cal.App.4th 1627, 1632.)
We then determine whether evidence supporting the verdict is
substantial. “ ‘[I]f the word “substantial” [is to mean] anything at
all, it clearly implies that such evidence must be of ponderable legal
significance. Obviously the word cannot be deemed synonymous
with “any” evidence. It must be reasonable . . . , credible, and of
solid value . . . .’ ” (Id. at p. 1633.)
Because techniques for designing and manufacturing vehicles
are not matters within common knowledge, a plaintiff must, in a
vehicle design defect case such as this one, offer the opinion of a
qualified expert in order to establish what “a reasonably careful
designer or manufacturer would have [done] in similar
circumstances.”4 (Howard, supra, 203 Cal.App.4th at p. 430;
accord, Miller, supra, 8 Cal.3d at pp. 702−703 [expert testimony
4More precisely, the jury in this case was instructed that
Daimler must have failed to exercise “the amount of care in
designing the product that a reasonably careful manufacturer
would use in similar circumstances to avoid exposing others to a
foreseeable risk of harm.” This instruction accurately paraphrased
the applicable case law.
12
required in design defect case if “[t]he average layman has neither
training nor experience” to know whether a design met prevailing
industry standards].)
Daimler argues that JNOV is proper because plaintiffs’
experts only offered possible safer alternative designs, and they did
not state that Daimler breached the standard of care prevailing in
the industry by failing to employ these alternative designs.
Relatedly, Daimler claims that plaintiffs’ experts failed to dispute
that Daimler’s fuel tanks complied with all industry standards and
federal crashworthiness requirements.
While it is true that the jury may consider compliance with
laws and applicable industry standards in deciding whether a
manufacturer has exercised due care, such compliance is not
dispositive. The dispositive consideration is what a reasonably
careful designer or manufacturer would have done in similar
circumstances.
Plaintiffs’ safety expert, Michael Pozzi, whose qualifications
went unchallenged, opined on “what a reasonable manufacturer
should do when looking at the hazards of its products,” testifying it
“has been known for over 50 years [that] you want to not have your
fuel tank at the perimeter of the vehicle,” and that “[h]aving
exposed fuel tanks in this type of truck [has] been known to be
unsafe or dangerous for . . . [¶] . . . [¶] [d]ecades.”
Although Daimler identifies evidence and inferences
supporting its defenses, “when ‘a finding of fact is attacked on the
ground that there is not any substantial evidence to sustain it, the
power of an appellate court begins and ends with the determination
as to whether there is any substantial evidence contradicted or
uncontradicted which will support the finding of fact.’ ” (Gray v.
Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 503, italics
omitted.) Because Pozzi’s opinion constitutes substantial evidence,
13
the existence of other evidence undercutting or even inconsistent
with his finding of fact is irrelevant. (Ibid.)
Accordingly, the trial court properly denied JNOV as to
plaintiffs’ negligent design defect claim.
II. New Trial Issues
A. Comparative Negligence
Although the jury voted 10 to 2 that Wilson had not been
negligent, the trial court granted Daimler a partial new trial on
the ground that Wilson’s failure to control her vehicle raised a
presumption of negligence, which plaintiffs failed to rebut.
Plaintiffs argue that the trial court erred in re-weighing the
evidence after the jury’s finding in Wilson’s favor. Daimler argues
it would be unduly prejudicial to limit a new trial to the issue of
Wilson’s comparative negligence because the trial court committed
multiple errors that led to the jury’s finding of Daimler’s overall
liability.
A new trial may be granted only on grounds specified in Code
of Civil Procedure section 657, one of which is “[i]nsufficiency of the
evidence to justify the verdict.”5
We review an order granting a new trial for abuse of
discretion. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
860.) “[A]n order granting a new trial . . . upon the ground of the
insufficiency of the evidence to justify the verdict . . . shall be
reversed as to such ground only if there is no substantial basis in
the record” supporting it. (§ 657.) In other words, such an order
“ ‘must be sustained on appeal unless the opposing party
demonstrates that no reasonable finder of fact could have found for
5 Unless otherwise indicated, all further statutory references
and citations are to the Code of Civil Procedure.
14
the movant on [the trial court’s] theory.’ ” (Lane v. Hughes Aircraft
Co. (2000) 22 Cal.4th 405, 409 (Lane).)
Under the trial court’s theory, the fact of Wilson’s accident
created an inference that she was negligent, which plaintiffs failed
to rebut. But that is not the law. “[E]vidence that an accident
rarely occurs when due care is used does not without more indicate
that a particular occurrence is more likely than not the result of
someone’s negligence.” (Clark v. Gibbons (1967) 66 Cal.2d 399, 412;
see Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 944 [“[t]he fact
that a particular injury rarely occurs does not in itself justify
an inference of negligence unless some other evidence indicates
negligence”].)
Although it is true that a properly functioning truck does not
typically go off the road absent driver negligence, the same cannot
be said for a truck with an incapacitated driver. The record
contains no evidence indicating that Wilson negligently operated
her vehicle—for example, that she drove at an unsafe speed or was
intoxicated or incapacitated due to negligence. Thus, the fact of the
accident alone gave rise to no inference that she was negligent.6
Lacking such an inference, Daimler bore the burden of
establishing Wilson’s negligence with affirmative evidence. It
failed to do so. Therefore, “ ‘no reasonable finder of fact could have
found for [Daimler] on [the trial court’s] theory [regarding Wilson’s
6 Although the doctrine of res ipsa loquitur provides that
an accident may be presumed to have resulted from negligence
if certain conditions are met, no findings below indicate these
required conditions had been met.
15
negligence]’ ” (Lane, supra, 22 Cal.4th at p. 409), and we must
reverse the court’s order granting a partial new trial on this issue.7
B. Romig’s Testimony
Daimler contends a new trial is required because the court
improperly admitted portions of Romig’s testimony that went
beyond the scope of what had been disclosed before trial. Plaintiffs
respond that Daimler failed to comply with the court’s instructions
regarding challenges to disputed expert testimony during trial, that
Romig’s trial opinions were offered in response to those of Robert
Banta, Daimler’s counter-designated expert, and that Romig’s
disputed opinions were mentioned at his deposition but not explored
in depth by Daimler’s counsel.
1. Proceedings
Because Romig was a designated expert, the trial court’s
analysis was guided by Kennemur v. State of California (1982) 133
Cal.App.3d 907, 917 (Kennemur). During the motions in limine
hearing immediately preceding trial, the court explained what each
party would need to do when making a Kennemur objection:
“If you make an objection during questioning on those
grounds, whoever is doing the questioning just stops and moves
on to another area. And when we take a break, the person who
makes the objection—so if its Kennemur, then show, ‘here is why
I asked this expert on these—all their opinions that you intend on
providing,’ etc., and then the burden shifts to the other side to show
that this person, the expert, did talk about it during the deposition.”
Immediately before Romig testified, Daimler filed motion in
limine No. 21 to exclude any reference to the New Orleans incident,
7 Daimler argues that any new trial should be unlimited
rather than partial. Because we reverse the court’s order granting
a partial new trial, we need not reach this issue.
16
ante, ground fire experiments, and related videos. Daimler argued
that plaintiffs failed to disclose that Romig would offer these
opinions and show videos to illustrate them until one business
day before Romig began his trial testimony. It further argued that
the New Orleans incident was not sufficiently similar to Wilson’s
accident to be admissible. Although Daimler’s motion included
a one-page excerpt of Romig’s deposition, it did not point out
anywhere Romig had been “locked in” to any of his opinions. Nor
did counsel do so orally on the record at the time of the hearing.8
After viewing the videotapes and hearing argument, the
court concluded that most of the exhibits were in rebuttal to Banta’s
ground fire opinions, although it limited what evidence could be
shown to the jury.
During cross-examination, Romig was asked whether video
and photos of the New Orleans incident had been produced at
his deposition. He responded, “No. In the deposition, I told
you that a similar incident had occurred in New Orleans that I
had investigated and that involved the physical mechanisms of
atomization that—that I believe happened here.” Counsel inquired,
“You told me that, but you didn’t show me anything, correct?”, to
which Romig responded, “Right. You didn’t ask.”
2. Legal Principles
A new trial may be granted due to “any order of the court
or abuse of discretion by which either party was prevented from
having a fair trial.” (§ 657.)
“[A] party’s expert may not offer testimony at trial that
exceeds the scope of his deposition testimony if the opposing party
has no notice or expectation that the expert will offer the new
8 Daimler has also failed to include such excerpts of Romig’s
deposition in the appellate transcript.
17
testimony.” (Easterby v. Clark (2009) 171 Cal.App.4th 772, 780.)
However, an expert may expand on and interpret conclusions stated
during his or her deposition. (DePalma v. Rodriguez (2007) 151
Cal.App.4th 159, 165.)
Pursuant to Kennemur, when an objection is made that the
proposed testimony of a designated expert will stray beyond the
scope of required pretrial disclosures, the court “may, upon such
terms as may be just . . . , permit [the] . . . witness . . . to testify to
an opinion or data on direct examination . . . so long as the court
finds that [the party offering the evidence] has made a good faith
effort to [disclose the substance of the expert’s opinion], and that
[the party] [¶] . . . would not in the exercise of reasonable diligence
have determined to call such witness” on the allegedly undisclosed
matter. (Kennemur, supra, 133 Cal.App.3d at pp. 917-918.)
“A trial court’s exercise of discretion in admitting or excluding
evidence is reviewable for abuse [citation] and will not be disturbed
except on a showing the trial court exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in
a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20
Cal.4th 1, 9-10.) A circumspect approach to appellate review of
evidentiary orders ensures an appropriate degree of trial court
latitude in the exercise of that discretion. (See Williams v. Superior
Court (2017) 3 Cal.5th 531, 540.)9
“Claims of evidentiary error under California law are
reviewed for prejudice applying the ‘miscarriage of justice’ or
9 Although we agree that timely, reciprocal disclosure of
expert witness information is important so as to prevent unfair
surprise at trial (dis. opn. post, at pp. 5-8), trial courts are far better
positioned than we to assess timelines or surprise, and appellate
courts should not undertake de novo review of such fact-dependent
decisions.
18
‘reasonably probable’ harmless error standard of People v. Watson
(1956) 46 Cal.2d 818, 836 . . . , that is embodied in article VI,
section 13 of the California Constitution. Under the Watson
harmless error standard, it is the burden of appellants to show
that it is reasonably probable that they would have received a more
favorable result at trial had the error not occurred.” (Christ v.
Schwartz (2016) 2 Cal.App.5th 440, 447.)
3. Analysis
Although the specific evidentiary issue presented is whether
Daimler was unfairly and prejudicially surprised at trial by Romig’s
use of the New Orleans incident and related videos, Daimler
provides us no transcript from which to discern the scope of Romig’s
deposition testimony. The only record on the issue is Romig’s own
trial testimony, in which he stated, without contradiction, that he
testified to these matters at deposition, and did not expound on
them, only because defense counsel never inquired further. On this
record we cannot meaningfully review the trial court’s exercise of
discretion in admitting Romig’s trial testimony. On this basis alone
we must affirm the court’s denial of a new trial. (People v. Hoyt
(2020) 8 Cal.5th 892, 939 [claim of error forfeited by failure to
supply adequate record]; WFG National Title Ins. Co. v. Wells Fargo
Bank, N.A. (2020) 51 Cal.App.5th 881, 894 [prejudice arguments
forfeited for failure to cite record evidence].)10
10 The trial court’s Kennemur directive did not “oversimplif[y]
the law” (dis. opn. post, at p. 10) but, on the contrary, was a
reasonable procedure for expediting the resolution of evidence
issues raised during trial. (See, e.g., Briggs v. Brown (2017) 3
Cal.5th 808, 852-853 [recognizing trial court’s inherent authority
to actively manage cases]; Nazir v. United Airlines (2009) 178
Cal.App.4th 243, 289-290 [trial court’s flexible management powers
extend to all aspects of the litigation process].) More importantly,
19
But even considering the merits, Romig’s unimpeached
statement during cross-examination—that he informed Daimler’s
counsel about the New Orleans incident during his deposition—
indicates Daimler’s counsel was on notice that Romig would talk
about atomization of diesel fuel as an important basis for his expert
testimony, and counsel was also aware of the existence of the New
Orleans explosion video.
Daimler’s lack of surprise is further evidenced by counsel’s
thorough cross-examination of Romig, during which he exhibited
substantial familiarity with the New Orleans incident by effectively
highlighting distinguishing characteristics. Daimler’s counsel also
cross-examined Romig extensively on his “dirt demonstration,”
the trial court overruled Daimler’s objection not for violating its
Kennemur directive but because it found that Romig’s supplemental
opinions were reasonable rebuttal to those of Banta, who had been
deposed on October 22, 2019, a mere six days before the trial began.
Because section 2034.310, subdivision (b) applies only to
undesignated experts, whereas Romig was designated, we join the
dissent in rejecting plaintiffs’ alternative argument that Romig’s
testimony regarding the New Orleans video merely impeached
Banta’s opinion. But fine distinctions between impeachment of
a foundational fact and rebuttal of an opinion do not control the
permissible testimony of competing designated experts. Moreover,
Jones, supra, 80 Cal.App.4th 557 does not support the conclusion
that Romig was “in effect” made unavailable for deposition. (Dis.
opn. post, at p. 7.) Rather, the Jones court concluded the expert
was in effect unavailable for deposition only on those opinions he
expressly disavowed in deposition. (Jones, at pp. 562, 564 [expert
“affirmatively stated that those were the only opinions he intended
to express at trial”; expert “specifically disavowed holding any other
opinions than those he had expressed”].) Here, Romig disavowed
nothing. It would therefore stretch Jones too far to consider Romig
“unavailable” for deposition regarding his New Orleans opinion.
20
challenging the similarity of the conditions under which it was
conducted to those existing at the time of the accident. The lengthy
testimony of Robert Banta, Daimler’s expert, who denied the
occurrence of atomization and detailed the differences between
the Wilson accident and the New Orleans incident, further belies
surprise.11
Although one can debate whether the videotape should have
been disclosed several days before the Friday before Romig’s
Monday testimony, both sides took expert depositions well beyond
the timelines set forth in the Code of Civil Procedure. Further, late
disclosures were also part of Daimler counsel’s repertoire.
All these circumstances were before the trial court when it
concluded that the New Orleans incident would be allowed into
evidence. Nothing about them or the court’s order suggests the
court exercised its discretion in an arbitrary, capricious, or patently
absurd manner. On the contrary, the court balanced Romig’s
deposition testimony against his proposed trial testimony according
to both the principles set forth in Kennemur and the court’s
evaluation—formed during its immersion in these proceedings—of
Courtney’s diligence and good faith and Daimler’s level of surprise.
As our division discussed in Easterby, supra, 171 Cal.App.4th
at page 783, “the traditional response to a witness whose testimony
is considered flawed would be cross-examination, impeachment,
argument, and perhaps rebuttal. Defense counsel showed
themselves to be well skilled in those arts.” This is exactly what
happened here.
11 Given these record facts, we disagree with the conclusions
that Romig’s testimony “could not be meaningfully vetted or
contextualized” (dis. opn. post, at p. 17) and that Romig was
permitted “to present effectively unchecked testimony on a key
issue.” (Dis. opn. post, at p. 19.)
21
Nor did the ruling, even if erroneous, result in a manifest
miscarriage of justice. Trial error is prejudicial and warrants
reversal only when, after an examination of the entire record the
appellate court “ ‘is of the “opinion” that it is reasonably probable
that a result more favorable to the appealing party would have been
reached in the absence of the error.’ ” (Clifton v. Ulis (1976) 17
Cal.3d 99, 105-106.) We cannot reach such a conclusion.
Romig’s testimony did not go unchecked but was ably
impeached, and the jury had plentiful evidence upon which to
evaluate his credibility. Moreover, although the jury verdict
was not unanimous, it completed its liability and most damages
deliberations within approximately two and a half hours. The
probability of a different result remains only “an abstract
possibility.” (College Hospital Inc. v. Superior Court (1994) 8
Cal.4th 704, 715.)
C. Jones Testimony
Plaintiff called James Jones to opine about a potential energy
absorbing device, but before he could do so Daimler filed motion in
limine No. 20, objecting on the ground that the design about which
Jones would testify differed from what he had described in his
deposition. Daimler supported the argument with Jones’s report
and illustrations of the two purportedly different designs, one
showing the device attached to a frame rail and the other showing
it attached to a leaf-spring. The trial court compared the
illustrations, noted that Daimler had not complied with its
Kennemur obligations, and overruled the objection.
Daimler argues the court should have granted a new trial
because Jones’s trial testimony exceeded the scope of his deposition
testimony. As with witness Romig, Daimler’s written motion in
limine did not include any excerpt of Jones’s deposition. Nor did
counsel point out on the record where in Jones’s deposition he had
22
been “locked in” so as to preclude any testimony regarding potential
additional designs.12
Moreover, Daimler makes no effort on appeal to describe how
Jones’s testimony about an undisclosed design made any difference
at trial, for example, by preventing effective cross-examination or
otherwise causing prejudice. Instead, Daimler summarily points
out that plaintiffs intended to gain an undue advantage. Of course,
plaintiffs’ intentions alone create no prejudice. A new trial on this
ground is unwarranted.
D. Arden’s Testimony
Daimler argues that the trial court abused its discretion in
preventing expert forensic pathologist Jonathan Arden from
offering testimony to rebut Dutra’s opinions. Plaintiffs respond
that the court properly exercised its discretion to exclude Arden’s
testimony to prevent jury confusion and speculation.
1. Proceedings
Daimler sought to call pathology expert Arden to rebut
Dutra’s testimony wherein he ruled out several other possible
causes of Wilson’s death, including heart failure and brain
hemorrhage. Arden proposed to testify that other possible causes,
such as a brain hemorrhage, cardiac failure, chemical event or
behavioral event, could not be ruled out because the gross autopsy
Dutra performed did not involve the level of detail necessary to
detect other possible causes.
After considerable argument before trial began, the trial
court granted plaintiffs’ written motion in limine No. 20 to exclude
Arden’s testimony as speculative, although it held open the
possibility of a different result during trial. Later, the court denied
12 Daimler has also failed to include such excerpts of Jones’s
deposition in the appellate transcript.
23
Daimler’s requests at trial that Dutra be permitted to testify
regarding the sufficiency of a gross autopsy to determine whether
Wilson suffered a heart attack or brain hemorrhage.
After three separate hearings, the trial court was persuaded
that Daimler’s push to admit Arden’s testimony would only create
speculation as to whether it was smoke asphyxiation from the fire
that in fact killed Wilson. More particularly, Daimler admitted
Arden’s testimony would be limited to whether there were
“additional steps that needed to be taken in order to rule out certain
causes of death.” In other words, there were “additional procedures
[that could have answered] . . . the questions as to what is going on
with this body and this person.”
The trial court rejected such testimony as speculative and
confusing: “I understand Arden could say, ‘You could have done
more. And if you had done more, then you might have found brain
hemorrhage,’ or ‘you might have found anything else,’ but since
there is no evidence of anything else, why would we tell the jury
that ‘if you had done more, you may have found something else?’
And ‘there is no evidence—and Arden is not going to present any
evidence—that anything else caused her death.’ ”13
To preclude improper jury speculation, the court limited
Arden’s testimony to a description of Wilson’s “mildly enlarged
heart,” which could only be considered for “life expectancy,” and it
gave the jury a limiting instruction to that effect.
2. Legal Principles
All relevant evidence is admissible, absent a statutory
exception. Evidence is relevant if it has any tendency in reason
to prove or disprove any disputed fact of consequence to the
13The trial court’s reasoning at the motions in limine hearing
was similar.
24
determination of an action. (Evid. Code, § 210.) Nevertheless,
relevant evidence should be excluded if the trial court, in its
discretion, determines that its probative value is substantially
outweighed by the probability that its admission will create a
substantial danger of jury confusion. (Evid. Code, § 352.) The trial
court “need not expressly weigh prejudice against probative value
or even expressly state that it has done so, if the record as a whole
shows the court was aware of and performed its balancing functions
under Evidence Code section 352.” (Simons on Cal. Evidence,
§ 1.25, p. 34, citing People v. Taylor (2001) 26 Cal.4th 1155, and
others.)
As noted above, we review a trial court’s admission or
exclusion of evidence for abuse of discretion, determining whether
the decision was arbitrary, capricious, or patently absurd, resulting
in a manifest miscarriage of justice. (People v. Rodriguez, supra, 20
Cal.4th at pp. 9-10.)
3. Analysis
Although Arden’s opinion was minimally probative to rebut
or impeach Dutra’s conclusions that certain other causes of death
could be ruled out, such an opinion would have had negligible value:
admitting the possibility of other causes of Wilson’s death would
have done nothing to affirmatively establish her actual cause of
death.
In other words, standing by itself, Arden’s testimony
regarding the limitations of Dutra’s gross autopsy would have
invited the jury to speculate that a head injury, a heart ailment,
or some other malady was possibly a cause of death, even though
Daimler had designated no expert to testify about possible causes of
Wilson’s death, and despite the absence of trial evidence suggesting
other possible causes. (See Jennings v. Palomar Pomerado Health
Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117 [“an expert’s
25
opinion that something could be true if certain assumed facts are
true, without any foundation for concluding those assumed facts
exist in the case before the jury, does not provide assistance to the
jury because the jury is charged with determining what occurred in
the case before it, not hypothetical possibilities”].)14
Given its careful monitoring of the evidence and theories of
liability, we cannot say the trial court abused its wide discretion
under Evidence Code section 352 in excluding Arden’s proposed
testimony after balancing its minimal probative value against the
significant danger of jury speculation. While it may be true that
the cause of Wilson’s death was a crucial part of plaintiffs’ theory
of liability, it was incumbent upon Daimler to tackle this causation
issue head-on through direct expert testimony rather than through
the oblique impeachment of the coroner’s procedures.
E. Attorney Misconduct
Daimler argues that comments in plaintiffs’ closing argument
about Daimler and its witnesses lying and misleading the jury, as
14 The recent opinion by our Division Eight colleagues
discussing alternative causation evidence, Kline v. Zimmer, Inc.
(2022) 79 Cal.App.5th 123, does not alter the result. There, the
appellate court ruled that as a matter of law the trial judge erred
by “categorically” excluding competing medical opinions regarding
causation of pain that were not stated to a reasonable degree of
medical certainty. However, the court made clear “that a trial
court [need not] accept every opinion offered by a defense expert,
no matter how speculative. To the contrary, an ‘ “expert’s opinion
may not be based ‘on assumptions of fact without evidentiary
support [citation], or on speculative or conjectural factors . . . .’ ” ’ ”
(Id. at p. 134.) Here, the trial court made no “categorical” exclusion
but instead appropriately exercised its substantial discretion under
Evidence Code sections 352 and 801, subdivision (b), to exclude
speculative testimony.
26
well as comments that the court later found violated the court’s
motion in limine ruling prohibiting references to Daimler’s size
and financial resources, constitute misconduct that tainted the jury
verdict, requiring a new trial. We disagree.
1. Proceedings
Before trial, the court ordered plaintiffs not to make
references to Daimler’s size or wealth. Nevertheless, during closing
argument plaintiffs’ counsel argued that the civil justice system
permitted the jury to “hold the biggest corporation accountable,”
“even if they have billions of dollar[s].”
Plaintiffs’ counsel also argued that Daimler “hired experts
to confuse you and to misdirect you,” and “hired this Banta
guy” and Stephens “to trick and confuse you.” Counsel accused
Daimler of using Banta and Stephens “to cheat their way into
winning. . . . [¶] . . . That’s what they are trying to do: cheat their
way.”
Plaintiffs’ counsel directly stated that Daimler “put [an
expert] on the stand to lie to you.” “Because they are not interested
in the truth. . . . They have this hired gun to come in and try to
confuse you.” “We have been wasting time . . . with these yahoos on
the stand making up nonsense.”
Many of the inappropriate comments were uttered before
the first break at 11:00 a.m., and no issue of misconduct was raised
by Daimler’s counsel during that 15-minute interlude. Nor was
misconduct raised immediately after plaintiffs’ counsel completed
his initial argument.
Instead of asking for the trial court’s assistance, Daimler’s
counsel responded by impugning the motivations of plaintiffs’
counsel and plaintiffs’ witnesses, quoting Carl Sandberg in the
27
process.15 Daimler’s counsel first raised the issue of misconduct at
the lunch break, after he had completed most of his own argument,
stating he chose to “preserve that for the record and request an
admonition.”
Following the lunch break, Daimler’s counsel once more went
after plaintiffs’ counsel’s motivations and accused him of making
snide comments and gratuitously disparaging witnesses. For
example, Daimler’s counsel jibed that plaintiffs’ counsel was
practicing “deception.” (The court overruled plaintiffs’ counsel’s
objection that the statement was improper.) Daimler’s counsel
responded to the “Yahoo” comment by going after the credibility
of one of plaintiffs’ witnesses, and in concluding his closing, again
pointed out the inappropriate bombast, argumentative style and the
name-calling of plaintiffs’ counsel.
Daimler again did not raise the issue of misconduct or
an admonition during the break between Daimler’s closing and
plaintiffs’ rebuttal. And Daimler again made no objection when
plaintiffs’ counsel began his rebuttal argument with continued
comments with respect to “lying and misleading.” Although
Daimler’s counsel objected twice during the rebuttal (requesting an
admonition regarding a jury instruction, which was overruled, and
an argument beyond the scope, which was sustained) he remained
silent with respect to attorney misconduct.
After the completion of arguments, when the trial judge
indicated he did not appreciate the unprofessional remarks by
plaintiffs’ counsel, Daimler’s counsel requested an admonition
on another topic. Eventually, when Daimler’s counsel belatedly
requested an admonition for misconduct, the trial judge indicated
15“If the facts are against you, argue the law. If the law is
against you, argue the facts. If the law and the facts are against
you, pound the table and yell like [ . . . ].”
28
that, if an objection had been made earlier, he almost definitely
would have stepped in.
Following closing argument, the trial court sua sponte
brought up plaintiff counsel’s violation of the in limine order with
respect to Daimler’s corporate wealth. The trial judge concluded
that plaintiffs’ counsel had violated the ruling, and chose to re-
instruct the jury on that issue after it had rendered a liability
verdict but before a full damages verdict was returned.
2. Legal Principles
Misconduct of counsel constitutes an irregularity that may
support a new trial. (City of Los Angeles v. Decker (1977) 18 Cal.3d
860, 870.)
“Personal attacks on the character or motives of the adverse
party, his counsel or his witnesses are misconduct.” (Stone v. Foster
(1980) 106 Cal.App.3d 334, 355.) That must not be done “even by
insinuation” (Martinez v. Department of Transportation (2015) 238
Cal.App.4th 559, 566 (Martinez)) because it “only serves to inflame
the passion and prejudice of the jury, distracting them from . . .
render[ing] a verdict based solely on the evidence admitted at trial”
(Las Palmas Associates v. Las Palmas Center Associates (1991) 235
Cal.App.3d 1220, 1246).
Strong attacks on the strength (or lack thereof) of an
opponent’s case, however, are permissible. (United States v.
Nunez (7th Cir. 2008) 532 F.3d 645, 654.) An advocate may
fairly comment on and argue any reasonable inferences from
the evidence. (People v. Samayoa (1997) 15 Cal.4th 795, 837.)
Although an advocate “may strike hard blows, he is not at liberty to
strike foul ones.” (Berger v. United States (1935) 295 U.S. 78, 88.)16
16
Appellate courts must be careful to differentiate between
ad hominem attacks of a personal nature (which are prohibited) and
29
A trial court’s rulings on an objection to misconduct and
request for an admonition are entrusted to the court’s discretion.
(Martinez, supra, 238 Cal.App.4th at p. 567; Hawk v. Superior
Court (1974) 42 Cal.App.3d 108, 126.) “In ruling on a motion
for new trial, a trial court has wide discretion, and we give ‘great
deference’ to that ruling on appeal. [Citation.] However, where a
motion for new trial on the ground of attorney misconduct has been
denied, as is the case here, we review the entire record to make
an independent determination of whether attorney misconduct was
prejudicial.” (Pilliod v. Monsanto Company (2021) 67 Cal.App.5th
591, 631.) “To demonstrate prejudice, the appellant must show a
reasonable probability that a more favorable result would have been
achieved in the absence of the attorney misconduct.” (Id. at p. 635.)
3. Analysis
We agree that the manner in which plaintiffs’ counsel
disparaged the character and veracity of Daimler and its witnesses
during closing arguments constituted misconduct. But we must
also consider (1) the nature and seriousness of the misconduct;
forceful attacks on the credibility of witnesses, including party
witnesses (which are permitted). After all, “a court or jury may
consider in determining the credibility of a witness any matter that
has any tendency in reason to prove or disprove the truthfulness
of his testimony at the hearing,” including such matters as the
witness’s demeanor, capacity to perceive the matter about which
he testifies, bias or interest, prior inconsistent statements, and
attitude toward the action in which he testifies. (Evid. Code, § 780.)
Cross-examination has been described as the “greatest legal engine
ever invented for the discovery of truth.” (California v. Green
(1970) 399 U.S. 149, 158.) The ability to comment on a witness’s
perceived lack of candor, or bias, or other motivation to fabricate
is a vital trial component. Nothing we say herein should be
understood to undercut these points.
30
(2) the general atmosphere, including the judge’s control of the
trial; (3) the likelihood of actual prejudice on the jury; and (4) the
efficacy of objections or admonitions under all the circumstances.
(See, e.g., Pilliod v. Monsanto Company, supra, 67 Cal.App.5th at
pp. 635-636.)
Here, the trial court was in full control of the closing
arguments and responded to objections quickly when presented
with them. Had Daimler’s counsel made timely objections, the trial
judge stated that he would “almost definitely” have admonished
plaintiffs’ counsel on the spot. However, the record supports the
more plausible conclusion that Daimler’s experienced counsel made
a tactical decision to forego contemporaneous objections in favor
of responding himself (which he did eloquently and with the
assistance of a prepared written statement) and then moving for
a mistrial, which he did after the arguments were almost finished.
Although Daimler’s counsel claimed to have misunderstood the
ground rules for closing argument (i.e., that he should save
objections for afterwards), he did object on other grounds early in
the initial closing argument by plaintiffs’ counsel.
Daimler’s counsel also never objected to any portion of the
closing argument wherein plaintiffs’ counsel indirectly referenced
Daimler’s size or wealth. Moreover, the lack of prejudice is
manifest because the reference to Daimler’s size was oblique, and
there was considerable evidence of Daimler’s size already in the
record (placed there without objection during examination of
Daimler witnesses). Further, during closing argument Daimler’s
counsel put his client’s company on a par with other very
large manufacturers, including Kenworth, Packer, Mac, and
International. Therefore, the jury was already plainly aware that
Daimler was a very large corporation with substantial assets.
31
The prejudicial effect of the inappropriate comments was
diminished by Daimler’s counsel’s able response without the
assistance of the court, which would have stopped the misconduct
immediately had objections been timely raised. Further, once
Daimler’s counsel responded himself to the misconduct, the trial
court did not abuse its discretion in declining to admonish the jury,
because doing so at that point would have been, to use the trial
court’s words, “putting my thumb on the scale.”
We therefore conclude that a new trial on the ground of
attorney misconduct was properly denied. (Pilliod v. Monsanto
Company, supra, 67 Cal.App.5th at pp. 635-636 [finding lack of
prejudice after full review of the record despite occasional “clearly
improper” conduct by plaintiffs’ counsel].)
F. Jury Selection
Daimler contends it was deprived of a fair trial because the
court failed on its own motion to excuse one juror, Mr. Gonzalez,
who due to his limited command of English expressed concern
about his ability to understand everything that was being said.
As a corollary to this contention, Daimler argues that the court
improperly denied six challenges for cause as to prospective jurors
whom it therefore had to excuse by using its peremptory challenges,
leaving it no peremptory challenge to use as to Mr. Gonzalez.
We conclude Daimler forfeited this contention by failing
to challenge Mr. Gonzalez at trial. “[A] defendant’s objection
to a juror’s competency, first made after trial, is belated and not
cognizable on appeal.” (People v. Hill (1992) 3 Cal.4th 959, 985,
overruled on another point in Price v. Superior Court (2001) 25
Cal.4th 1046, 1069, fn. 13.)
32
DISPOSITION
The judgment and order of the trial court granting a partial
new trial is reversed. In all other respects, we affirm. Plaintiffs are
awarded their costs on appeal.
NOT TO BE PUBLISHED.
CRANDALL, J. *
I concur:
CHANEY, J.
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
33
ROTHSCHILD, P. J., Dissenting.
I agree that the trial court correctly denied defendant
Daimler Trucks North America LLC’s (Daimler) judgment
notwithstanding the verdict on the negligent design defect claim,
and that the court reversibly erred in ordering a new trial on
the issue of comparative negligence. I also agree that counsel for
plaintiffs Shanisha, Raymond, and Martel Courtney (collectively,
plaintiffs) committed misconduct, but that this misconduct is not
sufficiently prejudicial to alone warrant a new trial.
I disagree, however, with the majority’s analysis regarding
the strict liability claim. In particular, unlike the majority, I
believe the court erred in not striking the testimony of plaintiffs’
expert, Joseph Romig, explaining the New Orleans and ground
fire videos and in admitting those videos into evidence. Further,
also unlike the majority, I believe the court erred by excluding
the testimony of Jonathan Arden, Daimler’s pathology expert.
These errors were prejudicial and warrant reversal and a new
trial on plaintiffs’ strict liability claim.1
A. Additional Factual Background Relevant to
Expert Testimony Analysis
Because plaintiffs’ theory of liability was that Daimler
had designed the fuel tanks of the 2009 Columbia in a manner
that rendered Cornelia Wilson’s crash and the resulting fire
unsurvivable, the specific manner in which the fire ensued
during the accident was crucial to plaintiffs’ case. If, as plaintiffs’
experts opined, a massive cab fire engulfed the tractor almost
immediately upon impact with the tree, Wilson would have had
1 I do not reach the issues Daimler raises regarding jury
selection or certain opinions of plaintiffs’ expert James Jones.
no opportunity to escape from the vehicle. If, as defense experts
opined, the larger cab fire did not ignite until 1.5 to 2 minutes
after impact with the tree, Wilson could theoretically have
escaped the vehicle, and plaintiffs’ theory of liability fails.
The crucial role these dueling timelines of the accident
played at trial provides important context for my analysis of
the challenged rulings regarding Romig’s and Arden’s expert
testimony and the effects of their testimony on the outcome of the
trial. Some additional detail regarding the evidence presented on
these points is helpful.
Robert Caldwell, plaintiffs’ accident reconstruction expert,
testified the tractor’s left front corner had “a major impact with
a substantial tree.” That impact caused the left axle and left
front wheel to move back and collide with the 100-gallon fuel
tank located on the left-hand side of the tractor. Based on this
reconstruction, Romig, plaintiffs’ thermodynamics expert, opined
that the fire resulted immediately upon impact from fuel emitted
from the compressed left fuel tank.2
Romig testified that as the tank was compressed, a
pressurized stream of diesel fuel was emitted from the tank, like
liquid streaming out of a crushed can of soda. Romig referred to
this process of breaking down a liquid into a mist-like spray as
“atomization.” Small droplets of fuel evaporated, causing diesel
vapor to mix with air. Although diesel fuel is not immediately
flammable in liquid form below approximately 100 to 145 degrees
Fahrenheit, vaporized diesel, like the diesel-air mixture Romig
opined resulted from the compression of the tank, is immediately
flammable when an ignition source is present.
2 The left fuel tank was not found and not inspected.
2
Romig further opined that other leaked fluids had landed
on hot metal, causing friction or electricity that ignited the
immediately flammable atomized diesel-air mixture. According
to Romig, only this mechanism could explain the mushroom
cloud or “fireball” that Cesar Avalos witnessed. As noted in
the majority opinion, Romig explained why, in his opinion, such
atomization was necessary to create what Avalos saw. In this
context, Romig discussed “an incident in New Orleans that ha[d]
a similar event of diesel fuel ejection and atomization that . . .
illustrate[d] what [he] [was] describing.” The details of Romig’s
testimony regarding the New Orleans incident, video of the
New Orleans incident, and atomization are already summarized
in the majority opinion. Crucially, Romig described the video
scenes while he played them for the jury. He also specifically
opined that “th[e] video show[ed] the jury” atomization had
occurred in this case, and that defendant’s expert, Robert Banta,
was incorrect in concluding otherwise.
As for the defense’s proposed timeline for the accident,
the majority opinion lays out most of the Banta testimony with
which Daimler sought to establish that, rather than atomization
causing an explosion immediately following impact, the impact
initially caused only a small fire when flammable power steering
fluid leaked from the fluid reservoir and spilled onto hot engine
components, causing “a hot-surface ignition of the fluids” that
“went to the ground, under the truck and was observed later by
[Avalos].” According to Banta, this small fire under the vehicle
ignited into a larger fire after several minutes.
Some additional detail about Banta’s testimony is helpful.
Banta testified that diesel fuel leaked from the damaged left fuel
tank onto the ground, but did not immediately ignite, because
3
diesel fuel is not flammable in liquid form unless it is heated to
approximately 120 degrees Fahrenheit. Eventually, the small
ground fire heated the spilled diesel fuel to that temperature,
and the diesel fuel ignited, “creat[ing] a very big cab fire.” Banta
opined this causal chain was consistent with Avalos’s account
of first seeing a small flicker under the cab, then the cab being
engulfed by a mushroom cloud of fire.
In response to Banta’s testimony, Romig testified he
performed tests to demonstrate why Banta’s opinion that
a ground fire occurred in Wilson’s accident was incorrect
(the ground fire experiments). Specifically, in an attempt to
demonstrate “diesel . . . [is not] flammable when it’s on the
ground,” Romig squirted diesel fuel onto dirt in a pan and tried
to ignite it using a barbeque lighter. The temperature of the
dirt and diesel fuel were approximately 60 to 70 degrees
Fahrenheit. Romig also tried to ignite a “pool of diesel in a
pan” at these same temperatures using a barbeque lighter, and
was unable to ignite it. Romig testified that the ground fire
experiments demonstrated that “dirt or no dirt, pooled diesel
is not going to catch on fire and create a fireball . . . [¶] . . . from
a small heat source” in the manner Banta had opined occurred.
Romig played videos of the ground fire experiment during his
testimony.
On appeal, Daimler challenges the admission not only of
Romig’s testimony about the New Orleans incident, New Orleans
video, and ground fire experiments, but admission of the
New Orleans and the ground fire experiment videos themselves
as well.
4
B. Legal Principles Governing Expert Discovery
and Disclosures
For reasons I discuss in detail in the following sections,
I disagree with the majority’s conclusion that the court’s
evidentiary rulings regarding certain testimony of Romig and
Arden and related videos do not constitute reversible error
under Kennemur v. State of California (1982) 133 Cal.App.3d
907, 917 (Kennemur) and the law governing expert discovery and
disclosures, of which Kennemur is only one part. A brief overview
of the “elaborate scheme regulating discovery of the opinions of
experts who will be called at trial” (ibid.) is helpful in assessing
the trial court’s interpretation of what that scheme requires.
The statutory expert disclosure scheme is built on the
premise that more detailed pretrial discovery is necessary when
dealing with experts, as opposed to fact witnesses, because when
expert testimony is offered at trial, opposing counsel “ ‘must . . .
cope with witnesses possessed of specialized knowledge in some
scientific or technical field. They must gear up to cross-examine
them effectively, and they must marshal the evidence to rebut
their opinions.’ ” (Bonds v. Roy (1999) 20 Cal.4th 140, 147
(Bonds).) To facilitate such trial preparation, the Code of Civil
Procedure requires litigants to, within a particular pretrial time
frame, both identify any experts whose testimony the party may
offer at trial (Code Civ. Proc., § 2034.260, subds. (a) & (b)(1)),3
and provide a declaration for each such expert that includes,
inter alia, “[a] brief narrative statement of the general substance
of the testimony that the expert is expected to give” and “[a]
3Unless otherwise indicated, subsequent unspecified
statutory references are to the Code of Civil Procedure.
5
representation that the expert will be . . . [able] to submit to
a meaningful oral deposition concerning the specific testimony,
including an opinion and its basis, that the expert is expected to
give at trial.” (§ 2034.260, subds. (c)(2) & (4).) These disclosures
are intended “to give fair notice of what an expert will say at
trial[,] . . . [which] allows the parties to assess whether to take
the expert’s deposition, to fully explore the relevant subject area
at any such deposition, and to select an expert who can respond
with a competing opinion on that subject area.” (Bonds, supra,
20 Cal.4th at pp. 146–147; see § 2034.410 [any party to an
action may depose a witness identified on an expert witness
list].) Testifying experts must be made available for deposition
and provide all materials made by the expert in the course of
preparing the expert’s opinions. (See §§ 2034.270, 2034.210,
subd. (c); see also § 2034.300, subds. (c) & (d).)
“ ‘[A]llowing new and unexpected testimony for the first
time at trial’ ” is “contrary” to the expert discovery statute’s
goal of “enabl[ing] parties to properly prepare for trial.” (Jones
v. Moore (2000) 80 Cal.App.4th 557, 566 (Jones), quoting
Bonds, supra, 20 Cal.4th at p. 148.) Therefore, the trial court
is required by statute to “exclude from evidence the expert
opinion of any witness that is offered by any party who has
unreasonably failed to” comply with certain expert discovery
and disclosure requirements designed to facilitate such
preparation. (§ 2034.300, subds. (c) & (d).) For example, the
statutes require a testifying expert to provide a declaration
containing “[a] brief narrative statement of the general substance
of the testimony that the expert is expected to give.” (§ 2034.260,
subd. (c)(2).) The expert is also required to provide all “writings”
he has prepared in the course of reaching his opinions. (See
6
§ 2034.210, subd. (c).) Failure to do either of these things results
in automatic exclusion of the expert’s testimony. (See § 2034.300,
subds. (b) & (c) [requiring exclusion of expert testimony for
failure to provide an expert declaration or “[p]roduce reports and
writings of expert witnesses [relied on in reaching the expert’s
opinion]”].)
Applying the spirit of these provisions, courts have also
excluded expert testimony at trial “ ‘that exceeds the scope of
[the expert’s] deposition testimony if the opposing party has no
notice or expectation that the expert will offer the new testimony,
or if notice of the new testimony comes at a time when deposing
the expert is unreasonably difficult.’ [Citation.]” (Dozier v.
Shapiro (2011) 199 Cal.App.4th 1509, 1523–1524 (Dozier),
italics omitted; Easterby v. Clark (2009) 171 Cal.App.4th
772, 780 (Easterby) [describing this as the “clear” “overarching
principle in Kennemur, Jones, and Bonds”]; McCoy v. Gustafson
(2009) 180 Cal.App.4th 56, 101 [experts are “properly restricted
to the opinions” disclosed in deposition]; see also Jones, supra,
80 Cal.App.4th at p. 565 [expert “in effect not made available
for deposition as to the further opinions he offered at trial” that
“during deposition he assured defense counsel he did not have”
where he “promised to notify defendant if he later formulated
such opinions but did not do so”].) In Kennemur, for example,
“[t]he decisive fact” requiring exclusion of the expert’s opinion
regarding tire tracks was “failure to disclose [the expert’s]
expected testimony concerning the tire tracks either at . . .
deposition or [in a pretrial disclosure]. This failure deprived
respondent of the opportunity to prepare for [the expert’s]
cross-examination and for possible rebuttal (surrebuttal) of
his testimony.” (Kennemur, supra, 133 Cal.App.3d at p. 918.)
7
Thus, under Kennemur and the expert disclosure statutory
scheme, the guiding principle is reasonable notice—assuring
counsel could reasonably anticipate expert opinions offered at
trial based on the disclosures/deposition testimony provided,
with the goal of affording opposing counsel sufficient opportunity
to prepare for trial. (See Bonds, supra, 20 Cal.4th at p. 148.)
“[T]he statutory scheme as a whole envisions timely disclosure of
the general substance of an expert’s expected testimony so that
the parties may properly prepare for trial. Allowing new and
unexpected testimony for the first time at trial . . . is inconsistent
with this purpose.” (Ibid.)
C. Romig’s Opinions Regarding the New Orleans
Video
1. Sufficiency of the record on appeal and
preservation of Kennemur objection4
The majority opinion first concludes that we cannot
determine whether Romig’s deposition allowed Daimler
to reasonably anticipate Romig’s opinions regarding the
New Orleans video, because Daimler failed to include the
entire deposition transcript in the record. But Romig admitted
at trial that he neither provided nor discussed the New Orleans
4 These issues potentially affect only the analysis of
the testimony regarding the New Orleans video, not testimony
regarding the ground fire experiments, because the latter is
subject to exclusion on the independent basis of section 2034.300,
as discussed below. Counsel did not need to comply with court
directives on Kennemur objections in order to preserve arguments
regarding exclusion of the ground fire experiment testimony
under that section.
8
video at his deposition.5 Plaintiffs do not contend otherwise.
Therefore, I do not view the lack of a full Romig deposition
transcript in the record as preventing us from considering
whether Romig’s trial testimony about that video improperly
exceeded the scope of what was discussed at the Romig
deposition.
The majority opinion further concludes there can be no
reversible error under Kennemur because Daimler “did not point
out anywhere [in his deposition testimony] Romig had been
‘locked in’ to any of his opinions,” something the trial court
instructed the parties to do in connection with any Kennemur
objection. (Maj. opn. ante, at p. 17 & fn. 8.) I disagree that
5 Specifically,the following colloquy took place at trial,
which initially focused on photographs of the New Orleans
incident that Romig had referenced, but then broadened to
other materials related to the incident:
“Q: But when you were submitting for deposition in this
case to provide your opinions, you didn’t bring those photos
[of the New Orleans incident] with you, did you?
“A: No. In the deposition, I told you that a similar
incident had occurred in New Orleans that I had investigated
and that involved the physical mechanisms of atomization
that . . . I believe happened here.
“Q: You told me that, but you didn’t show me anything,
correct?
“A: Right. You didn’t ask.
“Q: Did you bring this to your deposition as part of your
expert file in this case?
“A: No.”
9
Kennemur requires this, and the majority opinion offers nothing
to support a contrary conclusion.
The court’s directive oversimplifies the law regarding when
previously undisclosed expert opinions offered at trial should be
excluded. The relevant portion of the trial court’s instruction is
as follows: “[I]f its Kennemur, [the person making the objection
must] then show, ‘here is why I asked the expert on these—all
their opinions that you intend on providing,’ et cetera, and then
the burden shifts to the other side to show that this person, the
expert, did talk about it during the deposition.” I do not read
Kennemur, considered in the context of the cases and statutes
summarized above, as requiring an expert to expressly state
during deposition that he has identified all the opinions he
intends to offer in order for the report and deposition to limit his
testimony at trial.6 Rather, as noted in the Kennemur decision
itself, “[t]he decisive fact . . . is appellant’s failure to disclose
[the expert’s] expected testimony concerning the tire tracks
either at . . . deposition or as required by section 2037.3 [i.e., in
a disclosure/declaration]. This failure deprived respondent of the
opportunity to prepare for [the expert’s] cross-examination and
for possible rebuttal (surrebuttal) of his testimony.” (Kennemur,
supra, 133 Cal.App.3d at p. 918, fn. omitted.) This is consistent
6 Indeed, in Kennemur, because “[t]he Legislature has
singled out the pretrial discovery of expert opinions for special
treatment,” the Court of Appeal rejected, at least in the context
of testifying expert witnesses, the “proposition that the only
duty imposed upon the party whose witness is being deposed is
to make the witness and his reports available for examination”
and/or that “the witness is under no obligation to volunteer
information or to disclose relevant and material matters not
requested.” (Kennemur, supra, 133 Cal.App.3d at p. 919.)
10
with the larger guiding principle of the expert disclosure
statutory scheme requiring only reasonable notice—that counsel
must be able to reasonably anticipate the opinions based on the
disclosures/deposition testimony provided, with the larger goal of
affording opposing counsel sufficient opportunity to prepare trial.
(See Bonds, supra, 20 Cal.4th at p. 148.) (See part B, ante.)
Of course, one way a party may have “no notice or
expectation that the expert will offer the new testimony”
(Easterby, supra, 171 Cal.App.4th at p. 780) is if the expert
disavows having any further opinions beyond those noted at
deposition. That did indeed occur in most of the cases applying
Kennemur. But that is not the only way it can occur. Were it
the only way, then the California Supreme Court’s description
of the purpose of an expert report—“giv[ing] fair notice of what
an expert will say at trial[,] . . . [which] allows the parties to
assess whether to take the expert’s deposition, to fully explore
the relevant subject area at any such deposition” (Bonds, supra,
20 Cal.4th at pp. 146–147)—would not make sense. That is to
say, if in order to determine whether an expert’s trial testimony
will go beyond the expert’s report, counsel must elicit expert
deposition testimony that his trial testimony will not, then the
expert’s report would not “allow[ ] the parties to assess whether
to take the expert’s deposition” (ibid.)—rather, an expert
deposition would always be necessary in order to determine the
scope of expert trial testimony.
Moreover, excluding expert testimony based on lack
of reasonable notice without the companion requirement the
majority implies—namely, that the expert has expressly affirmed
he is “locked in” to a specific set of opinions—is consistent with
the expert discovery statutes’ approach to disclosures and
11
exclusionary sanctions generally. For example, the statutes
require a testifying expert to provide a declaration containing
“[a] brief narrative statement of the general substance of the
testimony that the expert is expected to give.” (§ 2034.260,
subd. (c)(2).) The expert is also required to provide all “writings”
he has prepared in the course of reaching his opinions. (See
§ 2034.210, subd. (c).) Exclusion of the expert’s testimony
automatically results from failure to do either of these things; the
code does not require counsel to first ask at deposition whether
the expert has produced every writing or disclosed every opinion
in the expert’s declaration. (See § 2034.300, subds. (b) & (c).)
Similarly, no such requirement should be imposed in the context
of expert deposition testimony.
Applying these concepts here, Daimler’s Kennemur
argument will rise or fall based on whether Daimler had
reasonable notice of Romig’s intent to opine on the similarity
between the New Orleans video and Wilson’s accident, regardless
of whether or not Romig ever expressly disavowed having any
opinions beyond those disclosed at his deposition. I therefore
view it as inconsistent with the law for the court to have
required, in order to preserve a Kennemur objection, that Daimler
identify where Romig was “locked in” to the opinions offered at
his deposition, and I do not consider Daimler’s failure to comply
with this ritual fatal to his Kennemur argument on appeal.
12
2. The trial court abused its discretion in
permitting Romig to testify regarding the
New Orleans video7
It is undisputed that, during his deposition, Romig
mentioned the New Orleans incident and discussed the concept
of atomization. The majority argues this was sufficient to put
Daimler on notice that Romig would offer the opinions he did
at trial. An essential element of this conclusion is the majority’s
characterization of Romig’s challenged testimony as speaking
only to the New Orleans incident and atomization. I disagree.
I view Romig’s trial testimony as instead going significantly
beyond those topics by opining on what a specific video of the
New Orleans incident—which was not provided at or prior
to Romig’s deposition—depicted, and on similarities between
what was depicted in that video and Wilson’s accident. Such
opinions are not merely more specific formulations of Romig’s
general mention of the incident at deposition. Nor does Romig’s
testimony regarding the New Orleans video merely demonstrate
a principle, as plaintiffs contend. (See Culpepper v. Volkswagen
of America, Inc. (1973) 33 Cal.App.3d 510, 522.) Neither Banta
nor any other witness has contested the general principle
that atomization can occur and can lead to a mushroom cloud.
Rather than using the New Orleans video to demonstrate this
7 In addition, as I discuss in part E, post, the admission
of the New Orleans video was error under Evidence Code
section 352. Because the video was presented to the jury only
as part of Romig’s testimony, however, and because the undue
prejudice that results from the admission of the video depends
in large part on Romig’s testimony about it, I address Romig’s
testimony about the video first.
13
undisputed concept, Romig used it to make very case-specific
points: that atomization in Wilson’s accident created a fireball
like the one depicted in the New Orleans video, and that this,
not a ground fire, caused what Avalos observed.
I am also unpersuaded by plaintiffs’ argument that
Romig’s testimony regarding the New Orleans video was
merely impeaching opinions defense expert Banta offered at
his deposition shortly before trial. Plaintiffs rely on the rule
that, when an expert testifies “to impeach the testimony of
[another] expert witness offered by . . . [another] party at the
trial,” the impeaching expert need not have been previously
designated, nor need the subject of the expert’s impeaching
testimony have been previously disclosed. (§ 2034.310, subd. (b);
see Collins v. Navistar, Inc. (2013) 214 Cal.App.4th 1486, 1517
[section 2034.310 applied and limited designated expert’s
testimony on topics as to which he had not been designated
an expert].) Such impeachment testimony may not, however,
“ ‘include testimony that contradicts the opinion’ ” of the expert
it purports to impeach, but “may include testimony to the falsity
or nonexistence of any fact used as the foundation for any opinion
by any other party’s expert witness.” (Collins, supra, at p. 1517.)
Here, Romig’s testimony does not attack the factual basis for
Banta’s view that atomization did not occur during Wilson’s
accident. Rather, in his challenged testimony, Romig offered his
own opinions contrary to Banta’s opinions. Specifically, Romig
opined (1) that atomization occurred during Wilson’s crash in
the manner depicted in the New Orleans video and (2) that the
fireball Avalos saw was created in the same manner depicted
in the New Orleans video. These opinions thus do not constitute
14
expert impeachment testimony that is exempt from expert
disclosure requirements.
Plaintiffs failed to comply with these statutory expert
disclosure requirements as interpreted by case law. Romig
needed to be “made available for deposition as to . . . [his]
opinions” regarding the New Orleans video. (Jones, supra,
80 Cal.App.4th at p. 565.) “In effect,” he was not, because
plaintiffs informed Daimler of these opinions and provided the
New Orleans video after trial had already begun and only on
the Friday before Romig’s Monday testimony. (Ibid.; see, e.g.,
Dozier, supra, 199 Cal.App.4th at p. 1524 [“counsel never
informed defendants about [the expert’s] postdeposition change
of testimony, and therefore never gave them the opportunity
to request a renewed deposition on that subject”].) This was
insufficient to provide Daimler a level of notice sufficient for
Daimler to “properly prepare for trial.” (Bonds, supra, 20 Cal.4th
at p. 148; see ibid. [identifying this as a goal of the “the statutory
scheme as a whole”].)
In determining whether the court abused its discretion
we must look to the applicable legal principles shaping that
discretion. “[A reviewing court] cannot determine whether a
trial court has acted . . . arbitrarily . . . without considering the
legal principles and policies that should have guided the court’s
actions.” (People v. Carmony (2004) 33 Cal.4th 367, 377.) The
expert disclosure requirements plaintiffs violated here are
designed to assure litigants have “ ‘a fair opportunity to prepare
for cross-examination or rebuttal’ ” of expert testimony, taking
into consideration the additional information and preparation
necessary to cross-examine an expert. (Easterby, supra, 171
Cal.App.4th at p. 780; see Bonds, supra, 20 Cal.4th at p. 148.)
15
Daimler was denied such a fair opportunity here.8 The trial
court’s decision to nevertheless permit it is thus inconsistent with
“ ‘the legal principles that govern’ ” and, in the context of those
principles, arbitrary and an abuse of discretion. (In re Robert L.
(1993) 21 Cal.App.4th 1057, 1067.)
3. Permitting Romig’s testimony regarding
the New Orleans video was prejudicial
Admitting Romig’s testimony was prejudicial. Trial error
is prejudicial and warrants reversal when, after an examination
8I am not persuaded by plaintiffs’ attempted justification
that, because they did not learn of Banta’s opinion denying
atomization or suggesting a ground fire occurred until Banta’s
deposition shortly before trial, the expert disclosure scheme
could not have required them to disclose what they characterize
as responsive opinions any earlier than they did. The expert
disclosure statutes contemplate the possibility that a party
may need to expand the scope of previously submitted expert
declarations to identify additional opinions and they provide
procedural mechanisms for doing so. (See § 2034.620,
subd. (c)(2) [addressing motions to augment expert witness
lists or declarations to include “different or additional testimony”
than initially disclosed].) Plaintiffs made no attempt through a
motion to augment or other less formal means to alert Daimler
that Romig might offer new opinions until 10 days after the
Banta deposition. At that point, trial had been underway for
several days, and Daimler had only a weekend to prepare to
cross-examine Romig on these topics or to prepare a rebuttal.
Plaintiffs offer no explanation as to why they waited so long to
disclose this information. The timing of the Banta deposition
thus does not excuse plaintiffs’ failure to give Daimler any
meaningful advance notice of Romig’s testimony regarding the
New Orleans video (or of his testimony about the ground fire
experiments, which I discuss in part E, post.)
16
of the entire record, the appellate court “ ‘is of the “opinion”
that it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the
error.’ ” (Clifton v. Ulis (1976) 17 Cal.3d 99, 105.) A “ ‘reasonable
probability’ ” does not mean more likely than not, but “merely a
reasonable chance, more than an abstract possibility.” (College
Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715 (College
Hospital), italics omitted.)
Permitting Romig to offer testimony about the
New Orleans video at trial, despite plaintiffs having first
disclosed these opinions and the video the Friday before Romig’s
Monday testimony, denied Daimler any meaningful opportunity
to prepare to cross-examine Romig regarding the video or to
gather materials and testimony to rebut his testimony. Romig’s
testimony involved a comparison with an entirely separate
incident, information about which is not readily available without
additional discovery. Plaintiffs’ delayed disclosure of Romig’s
additional opinions denied Daimler the opportunity to discover,
examine, and highlight for the jury any such salient differences
between the two incidents. As a result, the jury heard
expert testimony that could not be meaningfully vetted or
contextualized, either through informed cross-examination or
contrary expert opinion.
This is more than a theoretical problem. Romig was
unable to answer several questions at trial regarding details
of the New Orleans incident that might have meaningfully
distinguished it from Wilson’s accident, such as the respective
amounts of gasoline and diesel involved, whether the truck was
carrying both diesel and gasoline or just gasoline, and the extent
and manner in which the fuel tank was damaged in the incident.
17
Of particular note are the details regarding gasoline, which
experts testified is immediately flammable in liquid form
at a significantly lower temperature than diesel fuel—
at approximately 40 degrees Fahrenheit, compared to
approximately 120 degrees Fahrenheit for diesel fuel—the size
of the gas tank, specific attributes of the vehicle’s design, or the
speed at which the vehicle was traveling before the crash. And
even if Romig had been able to answer questions about these
potentially significant details, Daimler was entitled to seek or
confirm such information using a source other than the testimony
of the very witness Daimler was trying to impeach.
Romig’s testimony about the New Orleans video also played
a key role in establishing the specific mechanism and timing
of the fire, which was crucial to plaintiffs’ theory of liability.
Namely, plaintiffs sought to prove that, as a result of the way
the fuel tanks were designed, the crash caused a fire that Wilson
could not have survived. If, as Romig opined, the fire was caused
by atomization of diesel fuel when the fuel tank was compressed
upon impact with the tree, Wilson would not have had any
chance of escaping—the fire would have occurred too quickly
after impact. If instead the fire was caused by diesel fuel
becoming warm enough to ignite in liquid form (as Banta opined),
however, Wilson would have had several minutes between impact
and the fire—the time it took for the diesel to heat to a certain
temperature—to exit the truck and potentially survive. Plaintiffs
used the portion of Romig’s testimony that was never subject to
informed scrutiny to both support Romig’s ultimate opinion about
how the fire occurred and attack the veracity of Banta’s contrary
opinion. Criticizing the believability of Banta’s testimony in
this way also bolstered the narrative plaintiffs presented in their
18
closing argument: that Daimler’s experts were lying hired guns
who were trying to trick the jury. There is “a reasonable chance,”
and certainly “more than an abstract possibility” (College
Hospital, supra, 8 Cal.4th at p. 715, italics omitted) that, had
Romig not been permitted to present effectively unchecked
testimony on a key issue, the outcome of the trial would have
been different. It also undermines confidence in the verdict that
Romig was permitted to unilaterally claim the incident depicted
in the video was similar to Wilson’s accident—while playing
the video to illustrate this point—without Daimler having had
a meaningful opportunity to discover any evidence regarding the
particulars of that incident. (People v. Bolin (1998) 18 Cal.4th
297, 333 [“ ‘reasonable probability is a probability sufficient to
undermine confidence in the outcome’ ”].)
Nor does it lessen the prejudice to Daimler that, as the
majority notes, Daimler’s counsel extensively cross-examined
Romig regarding the New Orleans video and incident. (Maj. opn.
ante, at p. 21.) Although it may be true that “the traditional
response to a witness whose testimony is considered flawed
would be cross-examination, impeachment, argument, and
perhaps rebuttal” (Easterby, supra, 171 Cal.App.4th at p. 783),
these responses are of significantly less value if, as occurred
here, there is no meaningful opportunity to gather information
and determine how the testimony may be “flawed.” (Ibid.) Cross-
examination cannot play the role the majority envisions without
relevant information to inform that cross-examination. This
is particularly true in the case of testimony seeking to draw
comparisons; one cannot cross-examine about significant
differences between the two incidents if one has no independent
information regarding what those differences are.
19
Therefore, permitting Romig to offer opinions regarding the
New Orleans video for the first time at trial was prejudicial, and
the trial court reversibly erred in denying Daimler’s motion for a
new trial on this basis.
D. Ground Fire Experiment Testimony
Romig’s testimony regarding the ground fire experiments
should have been excluded under the expert disclosure statutes
as well.9 The ground fire experiment videos constitute “writings
of [the] expert” (§ 2034.300, subd. (c); see Evid. Code, § 250
[“ ‘[w]riting’ means . . . every other means of recording upon any
tangible thing, any form of communication or representation,
including . . . pictures, sounds, or symbols, or combinations
thereof, and any record thereby created, regardless of the
manner in which the record has been stored”]), and were not
timely disclosed as required by section 2034.270. This triggers
mandatory exclusion under section 2034.300. (See § 2034.300,
subd. (c) [“the trial court shall exclude from evidence the
expert opinion of any witness that is offered by any party
who has unreasonably failed to do any of the following: [¶] . . .
[¶] . . . Produce reports and writings of expert witnesses under
Section 2034.270”].)
Failure to exclude the testimony was prejudicial. As
discussed above, the specific mechanism through which the
9 In addition, as I discuss in section E, post, admission of
the ground fire experiment videos was error under Evidence Code
section 352. Because the video was presented to the jury only as
part of Romig’s testimony, however, and because the prejudice
that results from the admission of the video depends in large part
on Romig’s testimony about it, I address his testimony about the
video first.
20
explosion occurred was crucial to plaintiffs’ theory of liability.
Like the New Orleans video testimony, the ground fire
experiment testimony both bolstered plaintiffs’ characterization
of that mechanism and undermined Daimler’s characterization.
Plaintiffs’ failure to timely disclose this video denied Daimler
the opportunity to seek discovery regarding the particulars
of the experiment, to have its experts conduct experiments of
their own, or to otherwise prepare to thoroughly cross-examine
Romig regarding the experiment. This is precisely what the
exclusionary sanctions in section 2034.300 are designed to avoid.
E. The New Orleans and Ground Fire Videos
I also agree with Daimler that the court separately erred in
permitting plaintiffs to offer the New Orleans video and ground
fire video into evidence, despite plaintiffs giving Daimler no
indication that they intended to play the videos until trial was
underway. These videos were disclosed as an exhibit only after
trial had started, after the parties had provided their exhibit
lists, and only a weekend before the videos were played for
the jury. Such delayed disclosure rendered the videos unduly
prejudicial, because Daimler had no meaningful opportunity to
seek discovery regarding the videos or what they depicted, nor
did it have the opportunity to have its experts perform their own
experiments or prepare their own videos in response. Without
Daimler presenting informed cross-examination and / or
responsive evidence, the jury could not make an informed
assessment of the weight and significance of the videos when
they were played as part of Romig’s testimony. Moreover,
playing a video for the jury—as compared to offering testimony
alone—has a uniquely powerful effect, amplifying the prejudice
from admitting them without assuring they are given proper
21
context. Thus, permitting the jury to view the New Orleans
and ground fire videos constitutes error and, in my view, error
sufficiently prejudicial to warrant a new trial.
F. Arden’s Impeachment Testimony
Finally, the majority concludes that Arden’s proposed
testimony regarding the limits of what Timothy Dutra’s gross
autopsy could show was properly excluded. According to the
majority, the probative value of this testimony “is substantially
outweighed by the probability that its admission will . . .
create substantial danger of undue prejudice”—specifically,
the danger that it would encourage the jury to speculate. (Evid.
Code, § 352.)
The jury heard Dutra testify that, during his autopsy, he
did not find “traumatic injuries that would have accounted for
the death” of Wilson, and that, on this basis, Dutra “exclude[d]”
“any brain injury” “as a cause of death.” In the Arden testimony
the trial court excluded, Arden was “not going to say . . . that . . .
Dutra was wrong, but that some of the things that [Dutra] said[,]
[Dutra] could not tell . . . from a gross examination.” Specifically,
in response to Dutra’s ruling out brain injury as a cause of
Wilson’s death, Arden’s sought to opine “there are additional
steps that need to be taken in order to rule [brain injury] out”
as a cause of death. For example, Arden sought to opine that
because Dutra failed to dissect the brain to determine if there
was a hemorrhage, his autopsy was insufficient to exclude brain
injury as Wilson’s cause of death.
The majority views this testimony as minimally probative
“to rebut or impeach Dutra’s conclusions that certain other
causes of death could be ruled out,” because “admitting the
possibility of other causes of Wilson’s death would have done
22
nothing to affirmatively establish her actual cause of death.”
(Maj. opn. ante, at p. 25.) I disagree that the probative value
of Arden’s excluded testimony is minimal. Given the nature
of plaintiffs’ theory outlined above, the exact manner of
death is crucial to establishing causation. Dutra conclusively
ruling out brain injury as a cause of death is thus significant—
notwithstanding that, as the majority notes, there was other
evidence supporting Dutra’s further conclusion that the cause
of death was smoke inhalation.
As to the potential prejudice, the court concluded, and
the majority agrees, that Arden’s excluded testimony would
have invited the jury to speculate that head injury was the cause
of Wilson’s death, which would have been unduly prejudicial,
because Arden could not offer an opinion to a reasonable degree
of medical certainty as to the cause of Wilson’s death. But Arden
was not trying to offer any such opinion. Rather, Arden was
criticizing as unreliable and insufficient the methodology on
which Dutra based his opinion ruling out brain injury. In this
context, it is important to bear in mind that plaintiffs bore the
burden of establishing causation. Although “testimony by a
plaintiff ’s expert who cannot opine to a reasonable medical
probability is properly excluded because the opinion could not
sustain a finding in the plaintiff ’s favor [citation] . . . [citation]
[¶] . . .[,] [t]he same does not apply to a defendant’s efforts to
challenge or undermine the plaintiff ’s prima facie case. Even
after the plaintiff has made its prima facie case, the general rule
is that the burden to prove causation remains with the plaintiff.
[Citation.] And, regardless of whether the defendant produces
any evidence at all, it remains for the fact finder to say whether
the plaintiff has in fact met its burden to the requisite degree
23
of certainty.” (Kline v. Zimmer, Inc. (2022) 79 Cal.App.5th 123,
131−132.) Thus, Daimler did not need to prove an alternative
causation narrative; instead, it could choose to defend itself by
impugning the reliability of the causation evidence plaintiffs
offered. That is what Arden’s excluded testimony would have
done. Specifically, Arden would have challenged the reliability
of a gross autopsy as the basis for ruling out head injury as a
cause of death10 and concluding an internal hemorrhage did not
occur. As a former medical examiner and expert in forensic
pathology, Arden was qualified to testify regarding the proper
procedures for ruling out a cause of death. Such an opinion
from an expert qualified to offer it is not speculation, but rather
proper impeachment, because it is not an opinion contrary to
that offered by Dutra (i.e., an opinion as to the cause of Wilson’s
death) (§ 2034.310, subd. (b)), and instead speaks to a “matter
going to the truthfulness of . . . [Dutra’s] testimony.” (Kennemur,
supra, 133 Cal.App.3d at p. 922; see ibid. [“Legislature intended
the word [impeachment in section 2034.310, subdivision (b)]
to have the meaning provided in Evidence Code section 780”] &
Evid. Code, § 780, subd. (c) [“jury may consider in determining
the credibility of a witness any matter that has any tendency
in reason to prove or disprove the truthfulness of his testimony
at the hearing, including . . . [¶] . . . [¶] . . . [t]he extent of his
capacity to perceive . . . any matter about which he testifies”];
see also Kennemur, supra, at pp. 922–923 [“[a] party may
10 Dutra did testify that his opinions were based solely on
a gross autopsy, and that they were thus limited to what a gross
autopsy could reveal. But Arden’s expert testimony regarding
the specific limitations of a gross autopsy would have assisted the
jury in assessing the weight and credibility of Arden’s testimony.
24
impeach an expert witness by [inter alia] . . . calling other
witnesses to offer evidence showing the nonexistence or error
in the data upon which the first expert based his opinion”].)
Thus, prompting the jury to consider whether Dutra’s
autopsy would have yielded the same conclusions, had he
performed it differently, is not unfair prejudice, but a proper
goal of the impeachment. We vet the sufficiency and reliability
of the experts’ methods at trial precisely because, if they are
unreliable or insufficient, correcting those deficiencies could
change the expert’s opinion.
Arden’s excluded testimony would not unduly confuse
the jury. In any case, to the extent the court believed it had
the potential to confuse, appropriate instructions would have
remedied that possibility. Excluding this testimony was an
abuse of discretion and was not harmless under the standard for
evidentiary trial errors. There is a reasonable probability that
the jury’s nine-to-three verdict on the issue of causation would
have been different, had Dutra’s testimony excluding head injury
as a cause of Wilson’s death not gone entirely uncontradicted.
This is particularly true in light of other testimony at trial that
the speed at which Wilson’s truck collided with the tree was
sufficient for the collision to cause fatalities.11 At a minimum,
11 Specifically, Daimler’s accident reconstruction expert
opined that Wilson exited the freeway at a faster speed than
what plaintiffs’ reconstruction expert had estimated, and that
the tractor actually hit the tree with 34 to 38 miles per hour of
force. Factoring in the loaded vehicle’s weight, Daimler’s expert
opined the crash involved 3.5 to 4 million pounds of energy, a
level at which “you start seeing fatalities” in collisions based on
governmental data. Plaintiffs’ expert offered a different estimate,
opining that Wilson impacted the tree at 15 to 25 miles per hour,
25
after hearing Arden’s testimony challenging Dutra’s otherwise
unrebutted conclusion that Wilson did not suffer any head
injury, the jury might well have determined that plaintiffs had
not met their burden as to causation.
Given plaintiffs’ theory at trial that the truck design
prevented Wilson from surviving the accident, exactly how
Wilson died was a crucial part of plaintiffs’ case, and there
is a reasonable probability that Arden’s incorrectly excluded
testimony could have affected the jury’s close decision on this
issue. Plaintiff s’ closing argument also highlighted that Dutra
had ruled out brain injury as a cause of Wilson’s death, further
underscoring the importance of this testimony.
For the foregoing reasons, I would reverse the judgment
in plaintiffs’ favor and remand the matter for a new trial on the
strict liability claim.
ROTHSCHILD, P. J.
but offered no opinion as to whether fatalities could result from a
collision at that speed.
26