Tamamian v. Delgado CA2/1 ( 2023 )

Filed 6/23/23 Tamamian v. Delgado CA2/1
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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 ONE
JACK HAGOP TAMAMIAN, B317575
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC703639)
v.
MAREK SOTO DELGADO,
Defendant and Respondent.
Appeal from a judgment and an order of the Superior
Court of Los Angeles County, Cary H. Nishimoto, Judge.
Affirmed.
Feher Law, Thomas S. Feher, Andrew V. Alexandroff
and Nahid A. McGlynn for Plaintiff and Appellant.
Ford, Walker, Haggerty & Behar, John K. Paulson,
Emily T. Zinn and David J. Mendoza for Defendant and
Respondent.
______________________________
In October 2016, Marek Delgado (Delgado) rear-ended
Jack Tamamian (Tamamian) on the Interstate 210 freeway in
Pasadena, California. Tamamian reported no pain or injury at
the time of the collision. Two years later, he filed a personal
injury suit against Delgado claiming that the accident triggered
the onset of debilitating lower back and leg pain. Following a
two-week trial, the jury returned a verdict in favor of Delgado,
concluding that the accident was not a substantial factor in
causing Tamamian’s alleged harm. Tamamian then filed motions
for judgment notwithstanding the verdict and for a new trial,
both of which the trial court denied.
Tamamian now asks us to reverse the order denying
his posttrial motions. He contends that no evidence whatsoever
supports the jury’s verdict because all trial witnesses agreed
that he suffered at least some harm in the collision. He urges
further that a host of purported trial errors—namely, improper
cross-examination and closing argument by defense counsel, the
erroneous admission of belatedly disclosed evidence, and error
in reading back certain expert testimony to the jury—requires
that we grant him a new trial. We conclude, however, that
substantial evidence supports the jury’s verdict, and that any
trial errors were harmless. We therefore affirm.
FACTUAL SUMMARY AND PROCEDURAL HISTORY1
A. The Accident
At approximately 8:00 a.m. on Saturday, October 1, 2016,
Delgado, driving a Cadillac sedan, rear-ended Tamamian, who
was driving a Toyota Tacoma. The collision was minor enough
1 We summarize here only the facts and procedural history
relevant to our resolution of this appeal.
2
that the parties did not call the police. Instead, Delgado and
Tamamian each exited their vehicles, exchanged information,
and then returned to their cars and drove away from the accident
site.
Tamamian did not report any pain or injury at the time of
the collision, and he drove to work at Speedy Radiator—an auto
body shop where he services radiators—immediately following
the accident. He worked a half day, consistent with his typical
Saturday schedule. Tamamian’s radiator repair work, which he
has performed for over 35 years, is physically demanding. The
job requires that he slide underneath cars and remove radiators
from vehicles.
B. The Initial and Supplemental Repair Estimates
On November 15, 2016, a month and a half after the
collision, Tamamian obtained a repair estimate for the damage
to his truck. The estimate totaled $1,651.10 and called for, inter
alia, the repair of the truck’s bumper and tailgate. The estimate
did not identify any frame damage to the vehicle.
Tamamian received the funds necessary to complete
the repairs to his truck, but elected not to do so. Instead, he
continued driving the truck in its postaccident condition for
three years.
On September 6, 2019—nearly three years after the initial
estimate and more than a year after filing the complaint in this
action (discussed post)—Tamamian obtained a supplemental
repair estimate for his truck. This second estimate was
significantly higher, identifying $4,176.73 in necessary repairs.
In contrast to the initial repair estimate, the supplemental
estimate indicated that the truck had sustained frame damage.
3
C. Tamamian’s Medical Treatment
Tamamian first sought medical treatment for lower back
pain three days after the October 1, 2016 collision. He went to
urgent care, where medical personnel gave him a shot for the
pain and referred him to a chiropractor. The chiropractor treated
Tamamian for several months in 2016 and 2017.
Because Tamamian indicated that his lower back
pain had not improved, the chiropractor referred him to
Dr. Stepan Kasimian, an orthopedic surgeon. Seventy percent
of Dr. Kasimian’s practice is “lien-based care,” meaning that,
for patients who are personal injury plaintiffs, Dr. Kasimian
agrees the patients may defer paying for his medical services
until their personal injury actions have resolved. Dr. Kasimian
agreed to treat Tamamian on a lien basis.
Dr. Kasimian performed an initial examination of
Tamamian on December 18, 2017, and a second examination on
February 5, 2018. Tamamian indicated he was experiencing pain
in his lower back and the entirety of his right leg, in addition to
numbness in the toes on his left foot. Dr. Kasimian ordered an
MRI for Tamamian, as well as a nerve test and x-rays.
Based on the results of these tests and Tamamian’s
reported symptoms, Dr. Kasimian referred him to Dr. Lawrence
Miller, a pain management physician who practices with
Dr. Kasimian’s medical group. Dr. Miller concluded that
Tamamian’s other medical conditions—which included diabetes,
kidney stones, and prior colon cancer—made him a poor
candidate for an epidural steroid injection, a nonsurgical option
designed to mitigate back pain. At some point between February
and July 2018, Dr. Kasimian therefore recommended that
Tamamian undergo lumbar decompression surgery.
4
Tamamian, however, initially decided against surgery and
for the next two years limited his treatment to home exercises.
Tamamian continued working at Speedy Radiator throughout
this time period. Not until February 2, 2020—more than three
years after the collision and nearly two years after Tamamian
filed his personal injury claims against Delgado—did he decide
to undergo the surgery. Dr. Kasimian charged Tamamian
approximately $41,600 for the procedure.
Following the surgery, Tamamian experienced some
temporary relief of his symptoms, but within a few months his
lower back pain returned, accompanied by new pain radiating
down his left leg. Dr. Kasimian therefore recommended a
“revision surgery,” during which he would insert a cage into
Tamamian’s spine in an effort to relieve pressure on the nerve
located at the L5-S1 vertebrae. As of the time of trial in this
action, Tamamian had not yet scheduled the revision surgery.
D. Trial Proceedings
On April 24, 2018, Tamamian filed a complaint against
Delgado in connection with the October 1, 2016 collision.2
Tamamian and his wife, Aida Starr Tamamian (Aida), then
filed a first amended complaint on June 20, 2018. The amended
complaint asserted causes of action for motor vehicle negligence
and general negligence on behalf of Tamamian, as well as a loss
of consortium claim on Aida’s behalf. On November 26, 2019,
Aida dismissed her loss of consortium claim, leaving Tamamian
as the sole plaintiff in the action.
2 In addition to Delgado, the complaint named the owner
of the vehicle as a defendant. The trial court subsequently
granted a judgment of nonsuit as to the owner, and he is not a
party to this appeal.
5
The case proceeded to jury trial in September 2021.
Delgado conceded negligence, but disputed causation and
damages. Over the course of the two-week trial, Tamamian
presented testimony from Aida and his son, Vartan Tamamian
(Vartan), concerning how his lower back pain had impacted his
quality of life. In addition, Tamamian testified on his own behalf.
Tamamian did not call his chiropractor or his urgent care
doctor as trial witnesses. He did, however, present testimony
from Dr. Kasimian, Dr. Miller, and two other medical experts—
neurosurgeon Dr. Andrew Fox and neuroradiologist Dr. Brian
King—in support of his claims that the collision caused his
lower back and leg pain. Tamamian’s medical experts explained
that, prior to the accident, Tamamian likely had preexisting
degenerative changes in his back, including a herniated disc and
narrowing of his spinal nerve pathway. They opined, however,
that the collision served as a catalyst for Tamamian’s symptoms.
Dr. Fox, for example, likened Tamamian’s condition to an
aneurysm:
“So I equate this as a neurosurgeon it’s like having an
aneurysm. You can have an aneurysm and it’s asymptomatic
but all of a sudden you have change in pressure, that aneurysm
ruptures. . . . So [Tamamian] has an underlying pathology
but [it was] asymptomatic and he didn’t know about becoming
symptomatic until he had an event which caused him to become
symptomatic.”
In addition to medical experts, Tamamian presented
testimony from Brian Smith, a biomechanics expert, concerning
the forces generated by the collision.
During the defense case, Delgado called as a witness
Dr. Missak Klitchian, Tamamian’s family physician, who testified
6
that Tamamian visited him only infrequently and had not
adequately controlled his diabetes for five or 10 years.
Delgado also offered testimony from his own medical
experts—neuroradiologist Dr. Rachel Gordon and neurosurgeon
Dr. Luke Macyszyn—who opined that the accident did not cause
Tamamian’s lower back and leg pain. Dr. Gordon explained,
based on a comparison of a 2012 CT scan of Tamamian’s
abdomen with his postaccident MRI films, that Tamamian
had had “a pretty degenerative back” since “at least . . . 2012,”
and noted that she saw no evidence of trauma-based injuries.
Dr. Macyszyn testified further that the “most reasonable and
straightforward explanation[s] for [Tamamian’s] symptoms
of . . . feeling numbness in his legs” were his diabetes and the
chemotherapy he had received to treat his colon cancer.
In addition, Delgado presented testimony from his own
accident biomechanics expert, Daniel Voss, as well as from
an expert in medical billing, Henry Lubow, who testified that
Dr. Kasimian’s charges for the surgery were unreasonably high.
Tamamian did not present any rebuttal witnesses. In
closing argument, he asked the jury to award him over $350,000
for medical expenses and to award between $2 and $4 million to
compensate him for past and future noneconomic harm resulting
from the accident.
Over the course of their day-long deliberations, the jurors
made several requests. As relevant here, the jury asked “to hear
Dr. King’s testimony regarding flare-up—(II exam) and his cross-
examination.” In response, the trial court permitted a readback
to the jury of Dr. King’s cross-examination. Approximately an
hour after the readback, the jury returned a 9 to 3 verdict for the
defense, indicating on the special verdict form its conclusion that
7
Delgado’s negligence was not “a substantial factor in causing
harm to [Tamamian].”
Tamamian subsequently filed a motion for judgment
notwithstanding the verdict and for a new trial. The trial court
denied both motions at a December 10, 2021 hearing, explaining
in relevant part:
“The thing that I think [Tamamian] missed is that the
optics of this case did not sit well with the jury. We’re talking
about a rear-end accident that ultimately there was evidence that
[the car] wasn’t even damaged. And yet there were two—two
damage estimates, but [Tamamian] continued to drive the car for
three years. How could anyone drive a vehicle at all, much less
for three years, if it’s got frame damage? . . . After the accident
[Tamamian] continued on with his daily activities. . . . And [he]
was not asking the jury for three months of—of medicals. [He
was] asking for medicals based on $120,000 worth of medical
treatment of which the jury could easily have concluded that
the $46,000 that Dr. Kasimian charged for his surgery was
unnecessary. Either that or it was merely a—a surgery to
correct what was a preexisting injury. . . . The jury is entitled
to disregard expert witnesses. . . . And I think this entire case
boils down to the issue of credibility of [Tamamian] and his
wife. . . . So I—I think that the tentative rulings are correct and
those will be the order.”
Tamamian timely appealed.
8
DISCUSSION
A. The Trial Court Properly Denied Tamamian’s
Motion for Judgment Notwithstanding the
Verdict
“On appeal from an order denying a motion for
judgment notwithstanding the verdict, our standard of
review . . . is ‘whether any substantial evidence—contradicted
or uncontradicted—supports the jury’s conclusion.’ [Citation.]
We may not reweigh evidence or consider witnesses’ credibility.
[Citation.] Rather, we view the evidence in the light most
favorable to the jury’s verdict, we disregard conflicting evidence,
and we draw all legitimate inferences in favor of the verdict.”
(Morgan v. J-M Manufacturing Co., Inc. (2021) 60 Cal.App.5th
1078, 1085 (Morgan).)
Tamamian does not dispute that he bore the burden at
trial of demonstrating that the collision was a “substantial factor”
in causing his alleged harm—namely, his lower back and leg
pain, along with the loss of enjoyment of life that he contends
resulted from that pain. (See Crouch v. Trinity Christian Center
of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1014 (Crouch).)
Nor does he contend that the trial court misinstructed the
jury concerning the definition of “substantial factor.”3 Instead,
Tamamian contends that no evidence whatsoever supports the
jury’s determination that the collision was not a substantial
3 The court instructed the jury, using CACI No. 430,
that “[a] substantial factor in causing harm is a factor that a
reasonable person would consider to have contributed to the
harm. It must be more than a remote or trivial factor. It does
not have to be the only cause of the harm. Conduct is not a
substantial factor in causing harm if the same harm would have
occurred without that conduct.”
9
factor in causing his alleged harm because “all witnesses agreed
that [he] had an onset of low back pain following the October 1,
2016 motor vehicle collision—and that [his] pain was caused by
the subject collision.” At a minimum, Tamamian urges, the
defense expert witnesses agreed that he suffered a lower back
muscle strain as a result of the accident.
The record belies Tamamian’s contentions. As an initial
matter, no defense expert offered an opinion that Tamamian “had
an onset of low back pain” following the collision. The testimony
on which Tamamian relies for this argument consists merely of
the defense experts’ confirmation (on cross examination) of the
contents of Tamamian’s deposition transcripts and medical
records—materials the experts had no hand in preparing.4 Such
testimony does not constitute agreement by the defense experts
that Tamamian in fact experienced pain following the collision or
that the accident caused his pain.
Moreover, Tamamian ignores testimony from each
of Delgado’s experts expressly disavowing that the collision
triggered his pain. Dr. Gordon testified that Tamamian’s 2012
CT scan and postaccident MRI films indicated that he had had
“a pretty degenerative back” since “at least . . . 2012,” and that
the films contained no evidence of trauma-based injury to his
4
For example, Tamamian points to the following testimony
from Dr. Gordon:
“[Plaintiff ’s counsel:] All right. And in your review of this
information, you understand that . . . Tamamian’s symptoms
of low back pain and radicular symptoms started after the
October 1st, 2016 collision; correct?
“[Dr. Gordon:] That was what was in his medical records,
yes.”
10
spine. Dr. Macyszyn opined similarly, testifying that, to the
extent Tamamian suffered any injury in the collision, it would
have been “at most” a minor back strain:
“Once again, when I reviewed all these records, and, you
know, obviously there’s a lot of them, you know, I see you know
an older patient who has degenerative disease in [the] lumbar
spine. There was a very minor accident that occurred. Patient
continued to go to work the following day or the following week,
continued to work physically in a laborious job. [He] [d]id not
require treatment for, you know, three to four years. To me this
was a minor injury that at most led to a musculoligamentous
strain, so like a back strain that all of us have experienced
at some point that self-resolved. And the rest of the stuff is
unrelated to this, once again, minor accident.” (Italics added.)
Finally, although Voss, the defense biomechanics expert,
testified that the forces generated by the collision could affect
a human body by causing a “sprain [or] strain[,] particularly in
the neck [or] upper back,” he also testified that a person’s lower
back—the area Tamamian contends he injured in the accident—
would be “well supported” in such a collision. And Voss testified
further that the “force in th[e] collision would be significantly less
than the force involved in” the activities of “daily living,” such as
“simply bending over.”
Accordingly, we conclude that the trial record contains
substantial evidence supporting the jury’s finding that the
accident was not a substantial factor in causing Tamamian’s
alleged harm. The trial court therefore properly denied
Tamamian’s motion for judgment notwithstanding the verdict.
(See Morgan, supra, 60 Cal.App.5th at p. 1085.)
11
B. The Trial Court Acted Within Its Discretion in
Denying Tamamian’s Motion for a New Trial
“ ‘An order denying a motion for new trial will not be set
aside unless there was an abuse of discretion that resulted in
prejudicial error.’ [Citation.] We accord great deference to the
trial court’s exercise of its wide discretion in ruling on a motion
for a new trial. [Citation.] In reviewing an order denying a
motion for a new trial, we review the entire record, including
the evidence, and independently determine whether any error
was prejudicial.” (Crouch, supra, 39 Cal.App.5th at p. 1018.) A
trial court’s decision regarding the admission of evidence is also
reviewed for abuse of discretion. (Meeks v. AutoZone, Inc. (2018)
24 Cal.App.5th 855, 861, 867 (Meeks).)
Here, Tamamian contends that he is entitled to a new trial
because (1) the court erroneously permitted defense counsel to
examine various witnesses on allegedly improper topics, (2) the
court erred in admitting evidence of Tamamian’s 2012 CT scan
and by permitting Dr. Gordon to offer new opinions related to
the scan, (3) defense counsel made improper closing arguments,
and (4) the trial court erred by reading back to the jury only
Dr. King’s testimony on cross-examination, rather than the
entirety of his testimony. As detailed below, each of Tamamian’s
arguments fails.
1. Allegedly Improper Examination Topics
a. Aida’s loss of consortium claim and
her employment as a paralegal
Tamamian first contends that the trial court erred by
permitting defense counsel to cross-examine Aida concerning
her dismissed loss of consortium claim and her employment as
12
a paralegal at HG Law—a law firm that previously represented
Tamamian in this case. We disagree.
Tamamian’s insistence that such testimony “provides zero
probative value” because it “does not tend to prove or disprove
the severity or extent of [his] injuries” ignores that defense
counsel is entitled to probe a witness’s credibility. (See Newman
v. Los Angeles Transit Lines (1953) 120 Cal.App.2d 685, 691 [“[A]
witness may be required to answer any question which tends to
test [her] accuracy, veracity or credibility and especially in the
case of a party to the action where [she] appears as a witness.
[Citation.] Great latitude should be allowed in developing the
existence of bias. [Citation.] Liberal cross-examination is the
rule.”].) Aida’s employment as a paralegal at a law firm that
once represented her husband, as well as her status as a former
party to the action, were relevant to the jury’s assessment of her
credibility because these factors might have affected the nature
and content of her trial testimony.
Moreover, Tamamian offers no legal authority in support
of his contention that cross-examining Aida on these topics
resulted in undue prejudice. The two cases on which he relies
do not address the propriety of examining witnesses concerning
their employment status or regarding dismissed claims. (See
Richard v. Scott (1978) 79 Cal.App.3d 57; Holling v. Chandler
(1966) 241 Cal.App.2d 19.) We therefore are unpersuaded that a
new trial is warranted on this basis.
b. Aida’s and Vartan’s prior personal
injury claims
Next, Tamamian insists that we must grant him a new
trial because defense counsel improperly questioned Aida and
Vartan concerning their involvement in prior, unrelated personal
injury litigation. Again, we disagree.
13
Although Tamamian contends there is “a plethora of
case law” in support of his position, he points to only two cases,
neither of which concerns the permissibility of cross-examining
nonparty witnesses concerning their involvement in prior
litigation: Downing v. Barrett Mobile Home Transport, Inc.
(1974) 38 Cal.App.3d 519 (Downing) and Lowenthal v. Mortimer
(1954) 125 Cal.App.2d 636 (Lowenthal).
In Downing, the Fourth Appellate District held that
a trial court erred in permitting the introduction of a party’s
involvement in another accident because “[g]enerally, evidence
that a litigant was involved in a prior accident is inadmissible
when its only purported relevance is to show a propensity for
negligent acts.” (Downing, supra, 38 Cal.App.3d at p. 524.)
Downing thus does not address the issue relevant here—namely,
the propriety of admitting evidence of a witness’s involvement in
prior litigation.
Lowenthal lends more support to Tamamian’s position,
but still is not dispositive of the issue. In Lowenthal, the
defendant rear-ended the plaintiffs, a husband and wife who
owned a delicatessen. (Lowenthal, supra, 125 Cal.App.2d at
p. 638.) “On cross-examination[,] [the wife] testified that their
business required a cheerful person behind the counter, that
after the accident her husband was irritable, [and] that this
caused them to worry about being able to resume their business.”
(Id. at p. 639.) Purportedly to offer another explanation for the
husband’s “ ‘irritability,’ ” defense counsel proceeded to cross-
examine plaintiffs concerning their involvement in 15 prior
commercial lawsuits “wholly unrelated to personal injuries.”
(Id. at p. 640.) The Lowenthal court held that the trial
court erred in permitting this line of questioning, explaining:
“Introduction of the element of 15 other lawsuits could have had
14
no effect other than to prejudice the jury against the plaintiffs.
For litigiousness, in the eyes of most people, reflects more upon
character than upon impairment of health.” (Id. at p. 642.)
Tamamian concedes that Lowenthal does not address the
propriety of cross-examining a nonparty witness (as opposed to a
party) concerning involvement in prior personal injury litigation,
but he insists that “[i]f a party’s litigation history is irrelevant, it
is the undeniable proposition that a nonparty witness’s litigation
history is similarly irrelevant.”
We need not resolve this issue because—even assuming
the court erred in permitting cross-examination concerning prior
personal injury actions—Tamamian has failed to demonstrate
prejudice. The record does not support Tamamian’s contention
that defense counsel spent “countless hours with several
witnesses on the . . . topic” of prior litigation. Indeed, Tamamian
identifies only two limited instances of questioning on the
topic: approximately two pages of transcripts from the cross-
examination of Vartan and another two pages of transcripts from
the cross-examination of Aida.
In addition, the testimony that defense counsel elicited
from Vartan and Aida was not analogous to the prejudicial
revelation in Lowenthal that plaintiffs had been involved
in 15 prior lawsuits. (Lowenthal, supra, 125 Cal.App.2d at
pp. 639–640.) Vartan testified that he had filed a personal
injury suit only once before, in connection with a hip injury,
and that he had previously filed one workers’ compensation
claim in connection with a lower back injury. Aida testified
that she similarly had filed a personal injury suit only once, after
being hit by a drunk driver. Particularly in light of plaintiff ’s
counsel’s argument emphasizing that Tamamian had “never filed
a lawsuit before or any kind of claim,” Tamamian has failed to
15
demonstrate that defense counsel’s limited cross-examination of
Aida and Vartan on the topic resulted in prejudice. (See Crouch,
supra, 39 Cal.App.5th at p. 1018.)
c. Two repair estimates
Finally, we are not persuaded that defense counsel’s
questioning of witnesses concerning the two repair estimates
for Tamamian’s truck requires a new trial here.
Tamamian first argues that the court erred in permitting
any evidence of two separate estimates because “[t]he process of
two repair estimates is standard, ubiquitous, and not suggestive
of fraud or any ulterior motives,” and “[t]he [c]ourt failed to
appreciate the commonality of two repair estimates being
performed.” At trial, however, Tamamian admitted that it is
“uncommon” for a supplemental repair estimate to take place
three years following the initial estimate.5 We therefore agree
with the trial court’s conclusion that “why [Tamamian] would
ask for the vehicle to be repaired three years” after the collision
arguably “calls into question his credibility.” The court therefore
did not abuse its discretion in permitting evidence of the two
repair estimates. (Meeks, supra, 24 Cal.App.5th at p. 861.)
Tamamian next contends that—even if the court did not
err in admitting evidence of the two estimates—defense counsel
violated a stipulation and trial court rulings concerning the scope
of permissible questioning by examining “multiple witnesses”
on the topic for “[m]ultiple hours” in a manner designed to
5 We note further that, although he did not testify
at trial, Farmers Insurance’s person most knowledgeable
confirmed at deposition that a three-year delay between initial
and supplemental repair estimates is “unusual.”
16
“insinuate fraud” and attorney involvement in the supplemental
repair estimate. (Italics omitted.)
The record does not contain any stipulation between the
parties on the topic.6 Tamamian is correct, however, that the
trial court instructed defense counsel not to reference attorney
involvement in obtaining the supplemental estimate and not to
intimate fraud.
We disagree that defense counsel ran afoul of the court’s
rulings by “spen[ding] hours questioning witnesses about the two
repair estimates.” The record does not support this contention.
Tamamian identifies only 13 lines of transcripts from the two-
week trial that he claims constituted improper questioning on
the topic.
But we agree with Tamamian that this testimony does
reflect that defense counsel arguably violated the court’s
rulings by suggesting attorney involvement in obtaining the
supplemental estimate:
“[Defense counsel:] If your law firm was representing
your husband in 2019, you would have been representing him
at the time of that [sic] second vehicle repair estimate was
performed, correct?
“[Aida:] Yes. I believe so.
“[Defense counsel:] Okay. And so who arranged for this
second inspection in September 2019 to take place?
“[Aida:] I don’t recall.
“[Defense counsel:] Okay. Whose idea was it?
“[Aida:] What do you mean?
6 The portion of the record to which Tamamian cites
reflects only that his own counsel proposed such a stipulation.
We see no indication that defense counsel agreed to the proposal.
17
“[Defense counsel:] Whose idea was it to go get a second
inspection done?
“[Aida:] It was not a second inspection.”
In our view, defense counsel’s questions skirted—rather
than outright flouted—the trial court’s prohibition on referencing
attorney involvement in obtaining the supplemental estimate.
Even assuming, however, that defense counsel violated the trial
court’s rulings, we are not persuaded that the “ ‘misconduct . . .
was sufficiently egregious to cause prejudice.’ ” (Fernandez v.
Jimenez (2019) 40 Cal.App.5th 482, 494 (Fernandez).) Our
determination “ ‘ “ultimately rest[s] upon [our] view of the overall
record, taking into account such factors, inter alia, as the nature
and seriousness of the remarks and misconduct.” ’ ” (Id. at
p. 494.)
Viewed in the context of the entire trial record,
defense counsel’s four questions arguably suggesting attorney
involvement in the supplemental repair estimate were harmless.
The jury did not hear any direct evidence of attorney involvement
in the repair estimate process; to the contrary, Aida testified
that she did not know who arranged for the supplemental
estimate. Moreover, Tamamian elicited testimony from his
own biomechanics expert aimed at demonstrating the ubiquity
of supplemental repair estimates.
Accordingly, we conclude that any error resulting from
defense counsel’s inquiries concerning attorney involvement in
the supplemental repair estimate was harmless.
2. 2012 CT Scan and Dr. Gordon’s New Opinions
Next, Tamamian contends that we must grant a new trial
because the court abused its discretion by (1) admitting into
18
evidence a 2012 CT scan of his abdomen,7 and (2) permitting
Dr. Gordon to testify that (a) all people have back pain, and
(b) Tamamian must have had pain prior to the collision—opinions
that Tamamian contends Dr. Gordon never offered in deposition.
As an initial matter, Tamamian has forfeited these
contentions on appeal by failing to support his arguments
with adequate citations to the record. (See Cal. Rules of Court,
rule 8.204(a)(1)(C) [“[e]ach brief must . . . [¶] . . . [¶] . . . [s]upport
any reference to a matter in the record by a citation to the volume
and page number of the record where the matter appears”];
Liberty National Enterprises, L.P. v. Chicago Title Ins. Co. (2011)
194 Cal.App.4th 839, 846 [“We look askance at this practice of
stating what purport to be facts—and not unimportant facts—
without support in the record. This is a violation of the rules,
specifically rule 8.204(a)(1)(C) of the California Rules of Court,
with the consequence that such assertions will, at a minimum, be
disregarded.”].)
Moreover, even if considered on their merits, Tamamian’s
contentions fail. As to the 2012 CT scan, Tamamian argues
that defense counsel impermissibly subpoenaed the scan
from Hill Medical Corporation after the close of discovery, and
that after he moved to quash the subpoenas, defense counsel
misrepresented that they had withdrawn them. He urges further
that the trial court prohibited him from addressing the scan in
his case in chief. Nothing in the record supports these assertions.
Tamamian appears to have confused subpoenas Delgado issued
to Huntington Memorial Hospital—which Tamamian did move to
7 The record reflects that the trial court did not, in fact,
admit the 2012 CT scan into evidence, but the court did permit
its use as a demonstrative and allowed Dr. Gordon to testify
concerning the scan.
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quash—with subpoenas issued to Hill Medical Corporation, the
entity that produced the 2012 CT scan. And we see no indication
that the trial court ruled that Tamamian could not address the
scan during his case in chief.
With respect to Dr. Gordon’s trial testimony, the record
discloses that defense counsel informed Tamamian on August 3,
2021—more than a month before trial—that Dr. Gordon had
formulated new opinions, offered to make her available for a
second deposition, and offered to cover the cost of that deposition.
Defense counsel also offered to provide an expert report in lieu
of testimony. Tamamian failed to respond to these offers.
Instead, he waited until September 3, 2021 to file a motion in
limine to exclude Dr. Gordon’s testimony, which the trial court
denied during a September 15, 2021 hearing. At that same
hearing—held two days before the start of jury selection—the
trial court denied Tamamian’s subsequent request to redepose
Dr. Gordon, reasoning: “Counsel previously were given the
opportunity to depose said expert, and declined.” On this record,
we cannot conclude that the trial court abused its discretion in
permitting Dr. Gordon to offer new opinions at trial. (See
Easterby v. Clark (2009) 171 Cal.App.4th 772, 780 [trial court
committed reversible error in striking expert trial testimony not
previously offered at deposition, where counsel provided notice of
expert’s changed opinions three months prior to trial].)
3. Purportedly Improper Closing Arguments
Next, Tamamian contends that we must grant a new trial
because defense counsel made improper closing arguments by
(1) asserting, purportedly without evidentiary support, that
Tamamian had preexisting lower back pain, and (2) commenting
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on Tamamian’s failure to call his chiropractor and urgent care
doctor as trial witnesses. We disagree with both arguments.
Contrary to Tamamian’s contention, the record does
contain at least some evidence supporting defense counsel’s
argument in closing that it was “not reasonable” for “[a]
60-year-old gentleman who has been working replacing radiators
for over 30 years . . . [to] ha[ve] no back pain.” Tamamian’s 2012
CT scan reflects that he had significant, degenerative changes
in his spine at least four years prior to the accident, and he
worked for more than 30 years repairing radiators—a physically
demanding job that Tamamian’s own expert witnesses conceded
could impact his spine health.
And we conclude that any error8 by defense counsel in
commenting on Tamamian’s failure to call his chiropractor or
urgent care physician was harmless. The comment of which
8 Tamamian contends that long-standing caselaw holds
that such comments were impermissible. (See Smith v. Covell
(1980) 100 Cal.App.3d 947, 956–957 [“Defense counsel in his
rebuttal argument commented on plaintiffs’ failure to call as
witnesses the doctors . . . who had treated [one plaintiff] for
injuries sustained in the accident; the implication was that
such doctors would have testified adversely to plaintiffs’ case.”
“[That] conduct was prejudicial in an unmeasured amount
but adds support to the conclusion that reversal and retrial of
the issue of damages is mandated.”]; Patton v. Royal Industries,
Inc. (1968) 263 Cal.App.2d 760, 769.) Delgado counters that
Tamamian ignores more recent authority from our Supreme
Court. (See People v. Gonzales (2012) 54 Cal.4th 1234, 1275 [“it
is neither unusual nor improper to comment on the failure to call
logical witnesses”].) We need not resolve this issue, in light of our
conclusion that any such error was harmless.
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Tamamian complains is limited to six lines of transcripts9 in
a closing argument spanning more than 25 pages. Moreover, the
jury heard from Tamamian’s treating physicians Dr. Kasimian
and Dr. Miller, as well as two other medical experts, all of whom
provided testimony in support of Tamamian’s assertions that he
experienced severe back and leg pain as a result of the collision.
Accordingly, we conclude that defense counsel’s arguments were
harmless. (See Fernandez, supra, 40 Cal.App.5th at p. 492.)
4. Readback of Dr. King’s Cross-Examination
Testimony
Finally, Tamamian argues that the trial court reversibly
erred by permitting a readback to the jury of only the cross-
examination of Dr. King, Tamamian’s neuroradiology expert,
rather than the entirety of his testimony. Although Tamamian
argues there was “a good-faith dispute as to what testimony the
jurors wanted to be read back,” he provides no citations to the
record substantiating such a dispute. Nor does Tamamian point
to any legal authority in support of his contention that reading
back only the portion of a witness’s testimony requested by the
jury is unduly prejudicial. (Contra Asplund v. Driskell (1964)
225 Cal.App.2d 705, 714 [“[I]t is not the party to whom the law
gives the right to select testimony to be read. And the law does
not make the party or his attorney the arbiter to determine the
jury’s wishes.”].) We therefore are not persuaded that a new trial
is warranted on this basis.
9 Defense counsel argued: “So let’s get to the specifics. Did
we hear from the chiropractor? No. Did we hear from the urgent
care doctor? No. We called his primary care physician. We
didn’t hear from the owner of the premises. Now, in this case, if
the chiropractor was crucial, why didn’t we hear from him?”
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DISPOSITION
We affirm the October 5, 2021 judgment entered following
the jury trial, as well as the trial court’s December 10, 2021 order
denying Tamamian’s motions for judgment notwithstanding the
verdict and for a new trial. Respondent Delgado is awarded his
costs on appeal.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
WEINGART, J.
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