Powell v. Lemus CA2/7 ( 2021 )

Filed 1/19/21 Powell v. Lemus CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
XAVIER A. POWELL, B296583
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC613309)
v.
DOLLY G. LEMUS,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Frank Johnson, Judge. Affirmed.
The Appellate Law Firm, Corey Evan Parker, and
Berangere Allen-Blaine, for Plaintiff and Appellant.
Farmer Case & Fedor, John T. Farmer, and Joyce R.
Dondanville; Horvitz & Levy, Steven S. Fleischman, and
Yen-Shyang Tseng, for Defendant and Respondent.
INTRODUCTION
Xavier Powell sued Dolly Lemus after Lemus hit Powell’s
car with her car. A jury awarded Powell $7,663 in damages.
Powell appeals from the judgment, arguing that the trial court
abused its discretion in permitting two of Lemus’s expert
witnesses to testify at trial and that the damages award was
inadequate. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Powell Sues Lemus
In April 2015 Lemus rear-ended Powell’s car with her car
while Powell was stopped at a traffic light. Powell sued Lemus
for negligence. Lemus conceded she was negligent, but disputed
the extent of Powell’s injuries from the accident and the
reasonable costs of Powell’s medical treatment for those injuries.
B. The Trial Court Denies Powell’s Motion To Exclude
the Testimony of One of Lemus’s Expert Witnesses
In July 2017—over a year before trial commenced—Lemus
designated Dr. Peter Burkhard as an expert witness to testify
about accident reconstruction and the expected injuries from the
accident. In June 2018 counsel for Powell agreed with counsel for
Lemus on a date for Dr. Burkhard’s deposition, but counsel for
Powell canceled the scheduled deposition.1 In August 2018
1 It appears Dr. Burkhard’s deposition had already been
scheduled and cancelled at least twice, but it is not clear whether
counsel for Powell or counsel for Anthony Hall, another plaintiff
2
counsel for Powell served a new notice to take Dr. Burkhard’s
deposition in Los Angeles, despite several requests by counsel for
Lemus that the deposition occur in Orange County, where
Dr. Burkhard had his office.
On September 12, 2018, the day before Dr. Burkhard’s
scheduled deposition, counsel for Lemus again asked counsel for
Powell to agree to depose Dr. Burkhard in Orange County.
Counsel for Powell told counsel for Lemus that he intended to
take Dr. Burkhard’s deposition in Los Angeles, as stated in the
deposition notice. Counsel for Lemus responded that she “did not
agree to have the deposition taken” in Los Angeles and that she
would only make Dr. Burkhard available for deposition in Orange
County. Counsel for the parties exchanged multiple emails
reiterating their positions. On the morning of the deposition,
counsel for Lemus said Dr. Burkhard was available for a
deposition in Orange County on certain days the following week.
When Dr. Burkhard did not appear for his deposition in Los
Angeles, a court reporter certified his nonappearance. Counsel
for Powell never responded to counsel for Lemus’s offer to make
Dr. Burkhard available for deposition in Orange County the
following week, nor did counsel for Powell otherwise seek to
depose Dr. Burkhard before trial.
On October 25, 2018 Powell filed a motion in limine to
preclude Dr. Burkhard from testifying at trial on the ground
Dr. Burkhard did not appear for his deposition. On November 5,
2018, the first day of trial, the trial court denied Powell’s motion,
stating that it was “pretty obvious that [Powell’s] counsel must
have known” Dr. Burkhard would not appear for his deposition in
in the action, did the canceling. Hall settled with Lemus before
trial.
3
Los Angeles and that “there were opportunities” for Powell’s
counsel to depose Dr. Burkhard after he did not appear for the
deposition. The trial court also ruled Powell could still depose
Dr. Burkhard before he testified, and the court ordered counsel
for Lemus to use their best efforts to make Dr. Burkhard
available for a deposition. The court also offered to continue the
trial for a day to allow counsel for Powell to depose Dr. Burkhard,
an invitation counsel for Powell declined. Powell did not depose
Dr. Burkhard before he testified.
C. The Jury Awards Powell $7,663 in Damages
At trial Powell described the medical treatment she
received after the accident. She testified that, immediately after
the accident, she felt pain in her left elbow, neck, and back, felt
pressure in her right leg, and had a headache. She went to the
emergency room, where a doctor examined her and prescribed
medication. Over the next several months Powell continued to
experience pain and received treatment from several medical
providers. Her treatment included physical therapy, X-ray tests,
two magnetic resonance imaging scans (MRIs), one epidural
injection in her neck and one in her back, and a corticosteroid
shot in her knee. Powell claimed that she had incurred over
$75,000 in medical expenses as a result of the accident.
Powell called Thomas Fugger, an accident reconstruction
and biomechanics consultant, to testify at trial. Fugger opined
that Lemus’s car was traveling approximately 13 to 15 miles per
hour when it hit Powell’s car, which caused Powell’s car to
“undergo a velocity change of between eight to 10 miles [per]
hour.” Considering Powell’s claimed injuries, Fugger testified
that “certainly the neck” would be “a potential area of exposure”
4
from the accident, but that the lumbar spine would be “a bit less
so from a biomechanical point of view.” Dr. Michael Schiffman,
an orthopedist who treated Powell, reviewed Powell’s medical
expenses and testified the costs of her treatment were generally
reasonable, although some of the costs, including the MRIs and
one of the epidural injections, were high.
Lemus called Dr. Burkhard, who disagreed with Fugger’s
opinions. He testified that the difference in speed between
Lemus’s car and Powell’s car when the accident occurred was less
than 10 miles per hour and that Powell’s car would have
increased no more than seven miles per hour as a result of the
accident. He testified he would normally expect no injuries from
that change in speed.
Dr. Stephen Rothman, a radiologist, reviewed Powell’s
X-ray scans and MRIs. Dr. Rothman compared an X-ray of
Powell’s lower back before the accident to an X-ray after the
accident and concluded they looked the same. He noted that an
MRI of Powell’s neck revealed some abnormalities, but stated
that they “represent abnormalities that are present for a very
long period of time.”
Dr. Robert Wilson, an orthopedist who examined Powell,
described the accident as “very minor.” He stated that “it’s not
impossible” the accident would have caused Powell some
irritation and aggravation, but that after two to three months the
treatment she received was “not going to be due to this accident.”
Dr. Wilson stated that a reasonable course of treatment for
Powell after the accident would have included her visit to the
emergency room, up to three months of physical therapy, a
consultation and two or three follow up visits with a doctor, and a
set of X-rays and MRIs. In his opinion, the reasonable cost of
5
such treatment was $5,362. He concluded the epidural injections
Powell received were not medically necessary.
Lemus also called Dr. Henry Lubow, a physician
specializing in medical forensics. Dr. Lubow testified about the
reasonable value of the treatment provided by the doctor who
recommended Powell receive epidural injections and the
reasonable value of the injections. Powell’s doctors charged
$36,324 for these services, but Dr. Lubow said the reasonable
value of the services was only $2,393 to $3,111. He did not give
an opinion on whether the epidural injections were medically
necessary.
A nine-member jury2 unanimously awarded Powell $7,663
in damages—$4,663 for past economic expenses, $3,000 for past
noneconomic damages, and nothing for future economic or
noneconomic damages.3 Powell filed a motion for a new trial on
several grounds, including that the trial court erroneously
permitted Dr. Burkhard to testify and that the jury’s damages
2 The parties stipulated to a nine-member jury when
wildfires prevented several jurors from attending after trial
commenced.
3 Counsel for Lemus asked the jury to award Powell only
$4,588.27 in past economic damages, even though Dr. Wilson
stated that a reasonable course of treatment following the
accident would have cost $5,362. Counsel for Lemus argued that
the actual cost of Powell’s initial emergency room visit was
$773.73 less than the cost Dr. Wilson said was reasonable.
Counsel for Powell asked the jury to award over $150,000 in
future economic damages for future medical treatment. Powell
does not challenge the jury’s finding she was not entitled to any
future economic or noneconomic damages.
6
award was inadequate. The trial court denied the motion, and
Powell timely appealed from the judgment.
DISCUSSION
A. The Trial Court’s Evidentiary Rulings Were Not an
Abuse of Discretion
Powell argues the trial court erred by permitting
Dr. Burkhard to testify and by allowing Dr. Lubow to testify
about the reasonable value of Powell’s medical treatment, which
Dr. Lubow based in part on Medicare reimbursement rates.
Neither argument has merit.
1. Standard of Review
“Except to the extent the trial court bases its ruling on a
conclusion of law (which we review de novo), we review its ruling
excluding or admitting expert testimony for abuse of discretion.”
(Sargon Enterprises, Inc. v. University of Southern California
(2012) 55 Cal.4th 747, 773 (Sargon); accord, Pina v. County of Los
Angeles (2019) 38 Cal.App.5th 531, 545.) Because “‘[a]ction that
transgresses the confines of the applicable principles of law is
outside the scope of discretion,’” to “determine if a court abused
its discretion, we must thus consider ‘the legal principles and
policies that should have guided the court’s actions.’” (Sargon, at
p. 773; accord, Pina, at p. 545.) “The standard is a deferential
one, and an appellate court may not substitute its discretion for
that of the trial court, even if it disagrees.” (San Francisco Print
Media Co. v. The Hearst Corp. (2020) 44 Cal.App.5th 952, 962.)
7
2. The Trial Court Did Not Err in Allowing
Dr. Burkhard To Testify
“On receipt of an expert witness list from a party, any other
party may take the deposition of any person on the list.” (Code
Civ. Proc., § 2034.410.)4 Section 2034.300, subdivision (d),
provides “the trial court shall exclude from evidence the expert
opinion of any witness that is offered by any party who has
unreasonably failed to . . . [m]ake that expert available for a
deposition . . . .” As stated, Dr. Burkhard did not appear for a
deposition that counsel for Powell noticed to take place in Los
Angeles. Powell argues that, if a party wants to object to the
location of the deposition of an expert witness, the party must file
a motion for a protective order and that, “if [the] procedures are
not [followed], the court must exclude the testimony of the
expert” under section 2034.300, subdivision (d). Powell is correct
on the first point, but not on the second.
“The service of a proper deposition notice accompanied by
the tender of the [required] expert witness fee . . . is effective to
require the party employing or retaining the expert to produce
the expert for the deposition.” (§ 2034.460, subd. (a).)5 Failing to
make an expert witness available for a noticed deposition is a
misuse of the discovery process, for which the court may impose
4 Undesignated statutory references are to the Code of Civil
Procedure.
5 “If the party noticing the deposition fails to tender the
expert’s fee under [s]ection 2034.430, the expert shall not be
deposed at that time unless the parties stipulate otherwise.”
(§ 2034.460, subd. (b).) Powell makes no showing she tendered
Dr. Burkhard’s required expert witness fee, but we assume for
purposes of this appeal that she did.
8
sanctions. (See §§ 2023.010, subd. (d) [“Misuses of the discovery
process include . . . [f]ailing to respond or to submit to an
authorized method of discovery.”], 2023.030 [listing the kinds of
sanctions the court may impose for misuse of the discovery
process].) Any party who objects to the date and time of a
deposition after receiving service “may promptly move for a
protective order . . . .” (§ 2025.420, subd. (a); see § 2025.420,
subd. (b)(2), (4) [court may order that “the deposition be taken at
a different time” or “taken at a place other than that specified in
the deposition notice”].) Rather than filing a motion for a
protective order, counsel for Lemus simply informed counsel for
Powell that she objected to the deposition notice and that she
would not produce Dr. Burkhard for the deposition on that day.
Although counsel for Powell’s conduct did not fully comply with
the Code of Civil Procedure, any reasonable attorney would have
understood that the deposition was not going forward and that
the parties had a (minor) disagreement to work out. Indeed, the
discovery dispute here is the kind of discovery issue counsel are
generally expected to resolve informally without court
intervention.
In any event, to the extent counsel for Powell’s response
amounted to a misuse of the discovery process, the applicable
provisions of the Code did not, as Powell asserts, require the trial
court to exclude Dr. Burkhard’s testimony at trial. Section
2034.300 provides that the court must exclude the witness only if
the party designating the expert “unreasonably fail[s]” to produce
the expert for deposition. Failing to produce an expert witness
for deposition a single time on the date noticed by the
propounding party, based on a disagreement over the time and
place of the deposition, is not an “unreasonable” failure to make
9
an expert witness available for deposition under section
2034.300.
“Although section 2034.300 does not provide explicit
guidance as to how a court should decide if the party’s failure was
reasonable or unreasonable,” courts consider “whether the
conduct being evaluated will compromise [the] purposes of the
discovery statutes: ‘“to assist the parties and the trier of fact in
ascertaining the truth; to encourage settlement by educating the
parties as to the strengths of their claims and defenses; to
expedite and facilitate preparation and trial; to prevent delay;
and to safeguard against surprise.”’” (Staub v. Kiley (2014)
226 Cal.App.4th 1437, 1446-1447.) In addition, “[i]t is well
established ‘the purpose of discovery sanctions “is not ‘to provide
a weapon for punishment, forfeiture and the avoidance of a trial
on the merits,’” . . . but to prevent abuse of the discovery process
and correct the problem presented . . . .’” (Parker v. Wolters
Kluwer United States, Inc. (2007) 149 Cal.App.4th 285, 300; see
McGinty v. Superior Court (1994) 26 Cal.App.4th 204, 210.)
“Consistent with this statement of purpose the appellate courts
have held ‘[t]he penalty should be appropriate to the dereliction,
and should not exceed that which is required to protect the
interests of the party entitled to but denied discovery.’” (Parker,
at p. 301.) Therefore, the Code generally “‘evince[s] an
incremental approach to discovery sanctions, starting with
monetary sanctions . . . .’” (Lopez v. Watchtower Bible & Tract
Society of New York, Inc. (2016) 246 Cal.App.4th 566, 604.)
Powell’s contention that section 2034.300 requires the trial
court to exclude an expert witness from testifying any time the
party designating the expert fails to make the expert available
for a noticed deposition—regardless of the party’s other conduct
10
and efforts to make the witness available—is not consistent with
these purposes. When a party fails to make an expert available
for deposition, the “problem presented” that requires correction is
the unfairness to the other party of having to go to trial without
having had an opportunity to discover the opinions of the other
side’s expert and the bases for those opinions. (See Cottini v.
Enloe Medical Center (2014) 226 Cal.App.4th 401, 416 [“The
purpose of the expert witness discovery statutes is ‘to give fair
notice of what an expert will say at trial.’”].) Excluding an expert
witness from testifying may be appropriate where, for example, a
party engages in “a comprehensive attempt to thwart the
opposition from legitimate and necessary discovery.” (Zellerino v.
Brown (1991) 235 Cal.App.3d 1097, 1117; see, e.g., id. at
pp. 1115-1117 [trial court did not abuse its discretion in
precluding expert witnesses from testifying where the
designating party did not timely disclose the witnesses, did not
supply the required declarations stating the substance of the
witnesses’ expected testimony, failed to provide a discoverable
expert witness report, and “told counsel not to bother asking to
take depositions”].) But excluding an expert witness from
testifying any time the designating party fails (once) to make the
expert available for deposition at a particular (disputed) time and
place would serve primarily to punish the party designating the
expert witness and would not be proportional to the discovery
transgression.
Counsel for Lemus did not try to prevent Powell from
deposing Dr. Burkhard. Her primary offense was insisting
Dr. Burkhard’s deposition take place in Orange County, close to
Dr. Burkhard’s office. While counsel for Lemus’s actions may
have caused some delay, they did not significantly undermine the
11
purposes of the discovery statutes. Counsel for Lemus did not
“compromise [the] purposes of the discovery statutes” by trying to
prevent Powell from obtaining information from Dr. Burkhard
about his opinions, impede Powell’s preparation for trial, or gain
an unfair advantage by surprising Powell. (See Staub v. Kiley,
supra, 226 Cal.App.4th at p. 1447.)
Moreover, as the trial court correctly recognized, Powell’s
failure to depose Dr. Burkhard was caused at least as much (if
not more) by the conduct of counsel for Powell. “The behavior of
the party seeking to exclude the expert testimony is relevant to
the reasonableness inquiry” under section 2034.300. (Boston v.
Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 954; accord,
Staub v. Kiley, supra, 226 Cal.App.4th at pp. 1447-1448.) Powell
had over a year to depose Dr. Burkhard after Lemus designated
him as an expert. Counsel for Powell decided to cancel
Dr. Burkhard’s deposition at least once during the months before
trial. And counsel for Powell made no effort to accommodate
counsel for Lemus’s repeated requests that Dr. Burkhard’s
deposition take place in Orange County or to meet the other side
halfway (e.g., Norwalk, Santa Fe Springs, or Carmenita).
Counsel for Lemus offered to have counsel for Powell depose
Dr. Burkhard in Orange County before March 2018 and again in
June 2018, but counsel for Powell would have none of it. He
ignored counsel for Lemus and served a notice of Dr. Burkhard’s
deposition to take place in Los Angeles. And on the day of
Dr. Burkhard’s scheduled deposition, when counsel for Lemus
proposed three dates the following week that Powell could depose
Dr. Burkhard in Orange County, counsel for Powell again ignored
his opposing counsel. (See Staub, at p. 1447 [a party may act
unreasonably when it acts with “undue rigidity in responding to
12
expert scheduling issues”]; Super. Ct. L.A. County, Civ. Div.
Rules, appen. 3.A(e)(2), Guidelines for Civility in Litigation [“[i]n
scheduling depositions, reasonable consideration should be given
to accommodating schedules [of] opposing counsel and of the
deponent”].)
In addition, after Dr. Burkhard failed to appear for his
deposition, counsel for Powell never noticed a new deposition (in
Los Angeles County or Orange County), never filed a motion to
compel the deposition, and never made any other efforts to
depose Dr. Burkhard. (See Stanchfield v. Hamer Toyota, Inc.
(1995) 37 Cal.App.4th 1495, 1503-1504 [where the defendants’
expert witness stated at his deposition he was not prepared to
give his complete opinions on the plaintiff’s damages, but could
be ready within 16 hours, the trial court did not abuse its
discretion in ruling the plaintiff acted unreasonably by “fail[ing]
to make reasonable arrangements to continue the deposition or
seek appropriate relief before trial”].) Under these circumstances
the trial court did not abuse its discretion in finding Lemus did
not unreasonably fail to make Dr. Burkhard available for
deposition under section 2034.300 and in allowing Dr. Burkhard
to testify at trial.
3. Powell Has Not Shown the Trial Court Erred in
Admitting Dr. Lubow’s Testimony
Dr. Lubow testified about the reasonable value of the
services provided by the doctor who recommended Powell receive
epidural injections and the reasonable value of the injections.
Dr. Lubow’s opinion was based, in part, on published Medicare
reimbursement rates for the medical billing codes associated with
this type of treatment. Powell contends, without citing any
13
relevant authority,6 Dr. Lubow’s opinion was “inappropriate” and
“unfairly lowered the range of reimbursement” because “Powell is
not on Medicare and, indeed, is not even entitled to Medicare as
she is not over the age of 65.”
In light of Powell’s failure to cite relevant authority or
further develop her argument, it is not clear on what legal basis
she is arguing the trial court erred in allowing Dr. Lubow to give
this testimony. She appears to be arguing that Medicare
reimbursement rates are never relevant to the reasonable cost of
medical care received by patients who are not covered by
Medicare and that Dr. Lubow’s testimony was inadmissible
because it was based on irrelevant evidence. (See Sargon, supra,
55 Cal.4th at p. 776 [“[t]o the extent that the expert relied on
data that is not relevant to the measure of lost profit damages,
the trial court acted within its discretion to exclude the testimony
because it was not ‘[b]ased on matter . . . that is of a type that
reasonably may be relied upon by an expert in forming an
opinion’”].)
“[U]nder Evidence Code sections 801, subdivision (b), and
802, the trial court acts as a gatekeeper to exclude expert opinion
testimony that is (1) based on matter of a type on which an expert
may not reasonably rely, (2) based on reasons unsupported by the
material on which the expert relies, or 3) speculative.” (Sargon,
supra, 55 Cal.4th at pp. 771-772.) “But courts must . . . be
cautious in excluding expert testimony.” (Id. at p. 772.) “The
6 The only authority Powell cites is Martin v. PacifiCare of
California (2011) 198 Cal.App.4th 1390, where the court held
Health and Safety Code section 1371.25 “prevents a health care
service plan from being held vicariously liable for a medical
provider’s acts or omissions.” (Id. at p. 1393.) Martin has no
bearing on Powell’s appeal.
14
court must not weigh an opinion’s probative value or substitute
its own opinion for the expert’s opinion. Rather, the court must
simply determine whether the matter relied on can provide a
reasonable basis for the opinion or whether that opinion is based
on a leap of logic or conjecture. . . . The goal of trial court
gatekeeping is simply to exclude ‘clearly invalid and unreliable’
expert opinion.” (Ibid.; see Yumori-Kaku v. City of Santa Clara
(Dec. 30, 2020, H046105, H046696) ___ Cal.App.5th ___, ___
[2020 WL 7764966, p. 21].)
“To be recoverable” as damages, “a medical expense must
be both incurred and reasonable.” (Howell v. Hamilton Meats &
Provisions, Inc. (2011) 52 Cal.4th 541, 555; see Pebley v. Santa
Clara Organics, LLC (2018) 22 Cal.App.5th 1266, 1274 [“‘the
measure of medical damages is the lesser of (1) the amount paid
or incurred, and (2) the reasonable value of the medical services
provided’”].) Dr. Lubow explained why, in his opinion, Medicare
reimbursement rates were relevant to the reasonable value of the
medical treatment Powell received. He testified that, “in the fee-
for-service world,” where medical providers are paid for services
rather than as part of a health maintenance organization, there
are five primary types of payers: cash payers, Medicaid,
Medicare, payers in workers’ compensation proceedings, and
group health insurers. Dr. Lubow stated that the amount each
typically pays is proportional to Medicare’s published
reimbursement rates. According to Dr. Lubow, Medicare
“typically pay[s] 80 percent” of the reimbursement rate, whereas
the “average group health plan pays about 130 percent” of the
rate. He said he uses the Medicare reimbursement rate as the
lower value in determining the reasonable value of services
because “80 to 90 percent of the medical specialists in the Los
15
Angeles and Orange County areas” accept the Medicare
reimbursement rate. Dr. Lubow presented the Medicare
reimbursement rates for the medical billing codes associated with
Powell’s epidural injections and related treatment, as well as the
average amount a group health plan pays for those billing codes.
Based on this evidence, Dr. Lubow concluded the medical
expenses Powell incurred were unreasonably high.
In light of Dr. Lubow’s explanation of the bases of his
opinions, his testimony was not “‘clearly invalid and unreliable.’”
(Sargon, supra, 55 Cal.4th at p. 772.) Assuming the Medicare
reimbursement rates are in fact indicative of what other payers
typically pay for the medical services Powell received—a
proposition Powell does not challenge—those rates provide a (but
not the only) reasonable basis for determining the reasonable
value of her medical treatment in this case. (See Children’s
Hospital Central California v. Blue Cross of California (2014)
226 Cal.App.4th 1260, 1267, 1277-1278 [in an action by a hospital
to recover the reasonable and customary value of its services, the
trial court erred in excluding “the Medi-Cal and Medicare fee-for-
service rates paid by the government” for the services because
“[a]ll rates that are the result of contract or negotiation, including
rates paid by government payors, are relevant to the
determination of reasonable value”]; Sanjiv Goel, M.D., Inc. v.
Regal Medical Group, Inc. (2017) 11 Cal.App.5th 1054, 1064-1065
[expert’s testimony regarding Medicare rates was relevant to the
reasonable value of a hospital’s emergency medical services, even
where the hospital had to accept Medicare patients].)7
7 Powell similarly argues the trial court should not have
allowed Dr. Lubow to testify about the rates typically paid in
16
Powell also argues the trial court should not have allowed
Dr. Lubow to testify “on issues relating to orthopedics and
radiology.” Powell does not describe, however, the purported
objectionable testimony, nor does she cite any evidence in the
record showing Dr. Lubow offered opinions on orthopedics or
radiology related to Powell’s claimed injuries. (See Multani v.
Witkin & Neal (2013) 215 Cal.App.4th 1428, 1457 [“‘To
demonstrate error, appellant must present meaningful legal
analysis supported by . . . citations to facts in the record that
support the claim of error.’”].) Moreover, when giving his opinion
about the reasonable value of Powell’s epidural injections and
related treatment, Dr. Lubow said he was not giving an opinion
on whether the treatment was medically necessary, but was
presuming all of Powell’s treatment was both “made necessary by
the accident” and “medically necessary to do.”
B. Powell Has Not Shown the Jury’s Damages Award
Was Legally Inadequate
Powell argues the jury’s damages award was inadequate for
two reasons. First, Powell contends the jury’s award was
workers’ compensation proceedings. Dr. Lubow explained that,
as with the rates paid by group health plans, the rates typically
paid in workers’ compensation proceedings are proportional to
the Medicare reimbursement rates. Therefore, this argument
fails for the same reasons Powell’s argument about Medicare
rates fails. Moreover, Dr. Lubow did not actually give an opinion
about the rates typically paid in workers’ compensation
proceedings for the specific medical services Powell received. He
simply mentioned in passing that the rates paid in workers’
compensation proceedings typically fall between the Medicare
reimbursement rate and the average rates paid by group health
plans.
17
inadequate because the testimony of Dr. Burkhard and
Dr. Lubow tainted the trial. As discussed, however, the trial
court did not err in admitting this testimony.
Second, Powell argues the jury’s award was inadequate as
a matter of law because Powell incurred over $70,000 in medical
bills. A trial court may vacate a verdict and order a new trial on
the ground of inadequate damages if “after weighing the evidence
the court is convinced from the entire record, including
reasonable inferences therefrom, that the court or jury clearly
should have reached a different verdict or decision.” (§ 657.)
Powell, as the plaintiff, had the burden of proving she was
entitled to the damages she claimed. “‘[W]here the trier of fact
has expressly or implicitly concluded that the party with the
burden of proof did not carry the burden and that party appeals,’”
generally “‘the question for a reviewing court becomes whether
the evidence compels a finding in favor of the appellant as a
matter of law. [Citations.] Specifically, the question becomes
whether the appellant’s evidence was (1) “uncontradicted and
unimpeached” and (2) “of such a character and weight as to leave
no room for a judicial determination that it was insufficient to
support a finding.”’” (Dreyer’s Grand Ice Cream, Inc. v. County of
Kern (2013) 218 Cal.App.4th 828, 838; accord, Glovis America,
Inc. v. County of Ventura (2018) 28 Cal.App.5th 62, 71; Atkins v.
City of Los Angeles (2017) 8 Cal.App.5th 696, 734.) Where the
plaintiff contends “the trial court committed prejudicial error in
refusing to grant a new trial on the ground of inadequate
damages,” the reviewing court will not reverse an order denying
such a new trial motion unless the damages award was “‘totally
unconscionable and without evidentiary justification.’” (Ajaxo,
18
Inc. v. E*Trade Financial Corporation (2020) 48 Cal.App.5th 129,
192-193.)
Powell has not shown that there was uncontradicted and
unimpeached evidence she was entitled to $70,000 in damages,
that the evidence left no room for a contrary finding, or that the
jury’s award was unconscionable and unjustified by the evidence.
Lemus disputed the severity of the accident and whether Powell’s
claimed injuries were caused by the accident. Dr. Burkhard
testified Powell should not have had any injuries from the
accident. Dr. Rothman testified Powell’s X-rays and MRIs
showed only long-term degenerative changes that occurred before
the accident. Even Powell’s accident reconstruction expert,
Fugger, testified Powell should not have injured her lower back
in the accident. Dr. Wilson testified the reasonable value of
Powell’s reasonably necessary medical treatment was $5,362
(which assumed an emergency-room visit cost nearly $800 more
than what Powell actually incurred). Dr. Lubow testified the cost
of Powell’s epidural injections and related treatment (which
Dr. Wilson stated were not medically necessary) were several
thousand dollars more than reasonable. And Powell’s
orthopedist, Dr. Schiffman, testified that some of her medical
bills were unreasonably high. Powell has not shown as a matter
of law she was entitled to more than the $7,663 the jury awarded
her.
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DISPOSITION
The judgment is affirmed. Lemus is to recover her costs on
appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
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