Vaccarezza v. Baker CA2/7 ( 2023 )

Filed 10/12/23 Vaccarezza v. Baker CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
B322200
PRISCILLA VACCAREZZA et al.,
(Los Angeles County
Plaintiffs, Appellants and Super. Ct. No. BC597908)
Cross-Respondents.
v.
VINCENT A. BAKER et al.,
Defendants and
Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard J. Burdge Jr., Judge. Reversed with
directions.
Law Offices of James R. Morgan and James R. Morgan for
Plaintiffs and Appellants.
Wallace, Brown & Schwartz and George M. Wallace; Law
Offices of Lisa J. Brown and Lisa J. Brown for Defendants,
Respondents, and Cross-Appellants.
INTRODUCTION
Priscilla and Carlo Vaccarezza are racehorse trainers. In
2014 the Vaccarezzas ran their three-year-old filly, Little Alexis,
in a race at Santa Anita Park in Arcadia. After the race, Little
Alexis had a fever that prevented the Vaccarezzas from flying her
to Kentucky for a scheduled auction, where they hoped to sell her
for $1.5 million. Little Alexis’s performance declined after the
race, and the Vaccarezzas ultimately sold her a year later for
$440,000.
The Vaccarezzas sued Dr. Vincent Baker, who had
performed medical treatment on Little Alexis before the race, and
his medical group for veterinary malpractice. The Vaccarezzas
claimed that Baker failed to disclose abnormal results from a
hematology test he conducted shortly before the race and that,
had Baker disclosed the results to the Vaccarezzas, they would
have scratched Little Alexis from the race. And then, according
to the Vaccarezzas, they could have transported Little Alexis to
Kentucky for the auction. The jury accepted the Vaccarezzas’
theory and awarded them $1,060,000—the difference between
$1.5 million, what the Vaccarezzas alleged Little Alexis was
worth before the race, and $440,000, what they sold her for a year
later.
Baker filed a motion for judgment notwithstanding the
verdict, arguing the Vaccarezzas failed to show the applicable
standard of care required him to disclose the hematology results.
Baker also filed a motion for a new trial, arguing in the
alternative that, even if he did commit malpractice, the jury’s
damages award was excessive. The trial court denied the motion
for a new trial on the ground of excessive damages, but granted
the motion for judgment notwithstanding the verdict, ruling the
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Vaccarezzas failed to establish the requisite standard of care.
The court entered judgment for Baker, and the Vaccarezzas
appealed.
The Vaccarezzas contend the trial court erred in granting
the motion for judgment notwithstanding the verdict because
substantial evidence supported the jury’s finding the standard of
care required Baker to disclose the abnormal hematology test
results. We agree with the Vaccarezzas on this point. The
testimony from the Vaccarezzas’ expert was sufficient to establish
the appropriate standard of care, and Baker did not present any
contrary evidence.
Baker contends in his cross-appeal the trial court erred in
denying his motion for a new trial on the ground of excessive
damages. We agree with Baker on this point. The proper
measure of damages was the depreciation in Little Alexis’s value
caused by Baker’s negligent care. The Vaccarezzas’ evidence
showed, at most, Baker’s malpractice caused a fever that
temporarily prevented Little Alexis from flying to Kentucky for
the scheduled auction, but the Vaccarezzas did not present
substantial evidence the malpractice caused any long-term
injuries that depreciated Little Alexis’s value by over $1 million.
Therefore, we reverse the judgment and direct the trial court to
enter a new order denying Baker’s motion for judgment
notwithstanding the verdict and granting Baker’s motion for a
new trial.
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FACTUAL AND PROCEDURAL BACKGROUND
A. The Vaccarezzas Enter Little Alexis in a Breeders’
Cup Race at Santa Anita Park
The Vaccarezzas purchased Little Alexis in 2012. Between
February 2014 and September 2014, when Little Alexis was three
years old, she ran four races. She won her first two. Her third
race was the Test Stakes, a Grade 1 stakes race with a $500,000
purse.1 She finished third, losing to the winner by only one
length. Her fourth race was the Cotillon Stakes, another Grade 1
stakes race, with a purse of $1,000,000. Little Alexis finished
fourth.
After these races, the Vaccarezzas consulted with a
bloodstock agent2 about selling Little Alexis. They decided to
1 The Vaccarezzas’ adult son explained during trial that a
stakes race is a race for horses that have demonstrated their
ability to compete at a high level. Grade 1 is the highest level of
stakes race and offers the highest prizes. (See Dimario v.
Coppola (E.D.N.Y. 1998) 10 F.Supp.2d 213, 218 [“‘Stakes races
are the highest class of race in any jurisdiction, and usually
involve the largest purses.’”]; Halpern v. Lomenzo (N.Y. Sup. Ct.
1975) 81 Misc.2d 467, 471 [“The stakes races are the most
prestigious races run, for the prize money is substantial and an
effort is made to attract the best horses in the country to these
races.”].)
2 The Vaccarezzas’ evaluation expert, Thomas Clark (himself
a bloodstock agent), explained that a bloodstock agent advises
clients on the purchase and sale of horses. “Generally speaking,
a bloodstock agent arranges transactions between buyers and
sellers of horses. Bloodstock agents are valuable for their
knowledge of the industry and its trends and generally work on a
4
enter Little Alexis in the Breeders’ Cup Filly and Mare Sprint at
Santa Anita Park, another Grade 1 stakes race, scheduled for
November 1, 2014. The Vaccarezzas planned to transport Little
Alexis by plane to Kentucky on November 2, 2014 for an auction
scheduled to take place on November 3, 2014.
B. Baker Provides Veterinary Care for Little Alexis Prior
to the Race
Little Alexis traveled from Florida to Santa Anita Park
approximately three weeks before the Breeders’ Cup race. Baker
provided veterinary care for Little Alexis after she arrived. On
October 30, two days before the race, Baker administered a shot
of ketoprofen—an anti-inflammatory drug—and an “electrolyte
jug with vitamins via catheter.” The next morning, Little Alexis
had a lump on her neck (near the injection sites) and a 103.2-
degree temperature.3 When Little Alexis’s groom and Carlo
Vaccarezza touched the lump, Little Alexis reacted as if she was
in pain.
Baker gave Little Alexis a shot of phenylbutazone (Bute),4
another anti-inflammatory drug, to reduce the fever. Baker also
drew some blood from Little Alexis and ordered a complete blood
commission basis.” (Tolin v. C.I.R. (2014) 107 T.C.M. 1339, 10,
fn. 12.)
3 The Vaccarezzas’ medical expert testified the normal
temperature range for a horse is between 99 and 101 degrees.
4 “Phenylbutazone is an anti-inflammatory medication
administered to horses. Federal law restricts this drug to use by
or on the order of a licensed veterinarian.” (Baker v. Illinois
Racing Bd. (Ill. App. Ct. 1981) 101 Ill.App.3d 580, 582.)
5
count and Serum Amyloid A (SAA) test. Baker received the
results later that day: Little Alexis had a “slightly elevated”
white blood cell count, but an SAA level of 2,534 (much higher
than the normal upper limit of 15), which indicated an
“inflammatory reaction” from trauma or an infection.
The following morning (the morning of the race), Little
Alexis’s temperature had dropped to 100 degrees, and the size of
the lump on her neck had decreased. Baker told Carlo that Little
Alexis was “okay” to race. Baker did not disclose the hematology
results to the Vaccarezzas.
C. After the Race, Little Alexis Has a Fever That
Prevents the Vaccarezzas from Flying Her to Kentucky
Little Alexis finished second to last in the race. After the
race, her temperature was 104.7 degrees, and the size of the lump
on her neck had increased.
For Little Alexis to fly on a plane from California to
Kentucky, a veterinarian had to complete a health certificate
attesting that Little Alexis met various health conditions,
including that her temperature was below 102 degrees. Because
of her fever, the Vaccarezzas could not obtain the necessary
health certificate that would allow them to fly Little Alexis to
Kentucky for the scheduled auction. Little Alexis stayed in
California for three days after the race, at which point her
temperature had stabilized, and the Vaccarezzas transported her
by air back to Florida. The Vaccarezzas sold Little Alex for
$440,000 a year later at the same annual auction in Kentucky.
D. The Vaccarezzas Sue Baker
The Vaccarezzas sued Baker for veterinary malpractice,
alleging Baker’s negligent veterinary care caused permanent
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injury to Little Alexis. In particular, the Vaccarezzas alleged
Baker “failed to administer the pre-race medication [i.e., the
ketoprofen and electrolyte jug] in compliance with the applicable
standard of care causing new injury to [Little Alexis’s] jugular
vein . . . including, but not limited to phlebitis, thrombosis,
cellulitis, and . . . an elevated temperature rendering her too sick
to receive a veterinarian approval to timely fly back to Kentucky
for her scheduled auction . . . .” The Vaccarezzas further alleged
Little Alexis’s injury was “ongoing and precluded [her] from ever
performing at [the] level . . . she displayed” prior to the negligent
care.
E. The Parties Present Evidence at Trial
1. The Vaccarezzas’ Evidence of Baker’s
Malpractice and Little Alexis’s Injuries
The Vaccarezzas’ theory of liability changed down the
homestretch. At trial the Vaccarezzas did not attempt to prove
Baker negligently administered the ketoprofen and electrolyte
jug. Instead, the Vaccarezzas sought to prove that Baker
negligently failed to disclose the hematology results and that,
after receiving the results, he failed to advise them to scratch
Little Alexis from the race.
Dr. Michael Chovanes, an equine veterinarian who works
at racetracks, testified as an expert witness for the Vaccarezzas.
His opinion was that the medications Baker administered before
the race caused Little Alexis to develop “cellulitis, thrombosis,
and phlebitis.” Chovanes specifically testified, however, both
ketoprofen and an electrolyte jug were typical treatments
administered to horses 48 hours before races. He did not have
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any opinion whether Baker administered the medications
negligently.
When discussing Little Alexis’s hematology results,
Chovanes testified SAA levels measure inflammation in the body.
He testified that Little Alexis’s SAA level of 2,543 was “extremely
high,” the highest level he had ever seen in a horse, which
indicated “a huge systemic reaction” and “huge complication.”
When asked by counsel for the Vaccarezzas whether “it would be
the standard of care to tell the owner or trainer about these
results as soon as you receive them,” Chovanes said, “Yes.” When
asked whether the standard of care required advising a trainer to
scratch a horse with SAA levels that high, Chovanes said it was,
“unequivocally.”
Chovanes testified the stress of the race caused
Little Alexis’s temperature to increase to 104.7 degrees after the
race. He explained racing would cause inflammation “to go up,”
the Bute “to wear off,” and the temperature therefore to “be up.”
In his opinion, Little Alexis’s temperature likely would not have
spiked had the Vaccarezzas scratched her from the race.
Chovanes also reviewed pictures of Little Alexis taken after
the race that showed swelling outside her jugular vein, which,
according to Chovanes, indicated a vein blockage. In Chovanes’s
opinion, the stress of the race caused the cellulitis, phlebitis, and
thrombosis to come “back in a big way” because prior to the race
the neck “didn’t look too bad,” although he admitted nobody had
done an ultrasound on the vein. When asked by counsel for the
Vaccarezzas whether he believed Little Alexis’s “neck bulge
would have come back and grown but for the race,” Chovanes
answered: “I don’t know.”
Carlo testified he would have scratched Little Alexis from
the race had Baker discussed the hematology results with him.
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The Vaccarezzas did not run Little Alexis in another race for five
months after the Breeders’ Cup race, and Carlo testified she
never ran at the same level or “regained the form” she had before
that race. Carlo testified that, “every time we thought that [her]
vein went back to normal, . . . as soon as we just put a little bit of
speed, a little bit of stress on her, the thing used to blow up.”
2. The Vaccarezza’s Evidence of Little Alexis’s
Depreciation in Value
Thomas Clark, a bloodstock agent and professional
thoroughbred appraiser, testified as an expert witness for the
Vaccarezzas on Little Alexis’s value. In Clark’s opinion, Little
Alexis’s value on October 30, 2014—two days before the Breeders’
Cup race—was $1.5 million.
To arrive at his valuation, Clark reviewed the sales of
comparable fillies sold between 2014 and 2016. Clark explained
comparable fillies included those similar in “type,
accomplishment, . . . and pedigree.”5 Clark explained Little
Alexis was fairly easy to appraise because “she was running
against the best fillies in the country” and performing
comparably. Sweet Reason, the filly that defeated Little Alexis
by one length in the Test Stakes, sold for $2.7 million; Clark
explained that Sweet Reason and Little Alexis had similar racing
ability, but that Sweet Reason’s value was at a “premium”
5 Clark explained a horse’s pedigree depended on the
performance record of its sire,* dam,** and other relatives
(particularly on the female side).
* A “sire” is a male parent of a horse. (Den Besten v. C.I.R.
(2019) 118 T.C.M. 418, 5, fn. 5.)
** “A ‘dam’ is ‘a female parent of a horse.’” (Maupin v.
Sidiropolis (2004) 215 W.Va. 492, 494, fn. 2.)
9
because she won multiple Grade 1 Stakes and had a strong
pedigree. My Miss Sophia (whom Little Alexis defeated by four
lengths in her first race) sold for $2.15 million at the Kentucky
auction where the Vaccarezzas intended to sell Little Alexis.
Clark considered My Miss Sophia a close comparison because she
and Little Alexis had similar performance records and pedigrees,
although My Miss Sophia’s pedigree was “slightly stronger.”
Clark also identified a fourth filly that sold for $1 million at the
same auction, which Clark considered “definitely of a lower
value” than Little Alexis because it had a weaker performance
record.
Carlo testified during the trial he agreed with Clark’s
valuation. He stated he and Priscilla were seeking as their
damages the difference between $1,500,000 and $440,000 (the
amount they sold Little Alexis for).
3. Baker’s Evidence
Baker testified as an expert witness in his case. He stated
that, in his professional judgment, Little Alexis’s elevated
SAA levels did not prevent her from running the race. Baker
explained that he might advise a trainer to scratch a horse with
elevated SAA levels if he did not know why the horse had the
elevated SAA levels, but that he knew Little Alexis’s SAA levels
were caused by the lump on her neck. Because Little Alexis’s
temperature had stabilized and she was “doing very well” by the
morning of the race, Baker believed running in the race would
not harm her. Baker, however, did not dispute Chovanes’s
testimony that the applicable standard of care required a
veterinarian to disclose abnormal SAA levels to the horse’s
trainer. Indeed, similar testimony came straight from Baker’s
mouth: He confirmed it was his practice to discuss abnormal
10
results with his clients. Baker testified that he tried to call Carlo
and “went by the barn” on October 31, 2014 (the day he received
the results), but that he was unable to reach Carlo. Baker did
not explain why he did not discuss the results with Carlo when
he saw him the next morning before the race.
Gayle Van Leer, a bloodstock agent, rendered an opinion on
Little Alexis’s value “up to the point where she ran in the
Breeders’ Cup.” Van Leer testified that she disagreed with
Clark’s valuation of $1.5 million and that, in her opinion, Little
Alexis’s value at that time was between $375,000 and $475,000.
Van Leer explained that, while Little Alexis performed very well
in her first Grade 1 stakes race (the Test Stakes race), she did not
perform as well in the second Grade 1 stakes race (the Cotillon
Stakes). According to Van Leer, there was a question whether
Little Alexis would continue to perform well against high level
competition. Van Leer also stated that medical records from
when Little Alexis was two years old indicated multiple
treatments to her tendons, which could affect her future racing
prospects.
E. The Jury Returns a Verdict in Favor of the
Vaccarezzas, and Baker Files a Motion for Judgment
Notwithstanding the Verdict or in the Alternative for
a New Trial
The jury returned a verdict in favor of the Vaccarezzas and
awarded them $1,060,000 in damages. Baker filed a motion for
judgment notwithstanding the verdict, arguing, as relevant here,
“[t]here was no substantial evidence to support the existence of
[the Vaccarezzas’] claimed standard of care . . . .” In particular,
Baker argued that Chovanes testified his personal practices were
to immediately disclose the results of a hematology test to clients
11
and to advise a client to scratch a horse with high SAA levels, but
that Chovanes did not testify other veterinarians generally do the
same.
Baker also filed, in the alternative, a motion for a new trial.
As relevant here, Baker argued (more or less) the damage award
was excessive because Vaccarezza did not present substantial
evidence Baker’s failure to discuss the blood results with the
Vaccarezzas or advise them to scratch Little Alexis caused the
horse’s value to decrease by over $1 million dollars. Baker
asserted the jury could not “have reached the amount of damages
it did without engaging in impermissible speculation . . . .”
F. The Trial Court Denies the Motion for a New Trial,
but Grants the Motion for Judgment Notwithstanding
the Verdict
The trial court denied the motion for a new trial, ruling
substantial evidence supported the damages award. The court
ruled that Clark “testified convincingly” Little Alexis was worth
$1.5 million before the Breeders’ Cup race and that it was within
the province of the jury to weigh the credibility of the experts’
testimony regarding the value of Little Alexis.
The trial court, however, granted the motion for judgment
notwithstanding the verdict. The court ruled the Vaccarezzas
“did not establish a relevant, recognized standard of care in
California” or show a “veterinarian of ordinary skill would have
treated the facts of this case differently” than Baker. The court
largely agreed with Baker that Chovanes primarily discussed his
personal practice of informing clients about abnormal hematology
results, but that Chovanes did not discuss “how veterinarians in
California reported the [SAA] tests in 2014.” The court entered
12
judgment for Baker, the Vaccarezzas timely appealed, and Baker
cross-appealed.
DISCUSSION
A. The Trial Court Erred in Granting Baker’s Motion for
Judgment Notwithstanding the Verdict
“‘A motion for judgment notwithstanding the verdict may
be granted only if it appears from the evidence, viewed in the
light most favorable to the party securing the verdict, that there
is no substantial evidence in support. . . . As in the trial court,
the standard of review [on appeal] is whether any substantial
evidence—contradicted or uncontradicted—supports the jury’s
conclusion.’” (Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th
167, 192; see Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764,
770; Guzman v. NBA Automotive, Inc. (2021) 68 Cal.App.5th
1109, 1115.) “We, like the trial court, may not reweigh the
evidence or judge the credibility of witnesses. ‘“‘If the evidence is
conflicting or if several reasonable inferences may be drawn, the
motion for judgment notwithstanding the verdict should be
denied . . . .’”’” (Kruthanooch v. Glendale Adventist Medical
Center (2022) 83 Cal.App.5th 1109, 1122; see Johnson & Johnson
Talcum Powder Cases (2019) 37 Cal.App.5th 292, 313.) When
reviewing an order granting a motion notwithstanding the
verdict, we “resolve any conflict in the evidence and draw all
reasonable inferences therefrom in favor of the jury’s verdict.”
(Kruthanooch, at p. 1122, internal quotation marks omitted; see
Johnson & Johnson Talcum Powder Cases, at pp. 313-314.)
“To establish a veterinarian malpractice claim, a plaintiff is
required to present expert testimony establishing the appropriate
standard of care in the relevant community.” (Quigley v.
13
McClellan (2013) 214 Cal.App.4th 1276, 1283; see Williamson v.
Prida (1999) 75 Cal.App.4th 1417, 1425.) The standard of care
requires only that veterinarians “exercise in diagnosis and
treatment that reasonable degree of skill, knowledge, and care
ordinarily possessed and exercised by members of the medical
profession under similar circumstances.” (Burgess v. Superior
Court (1992) 2 Cal.4th 1064, 1081; see Quigley, at p. 1283;
Williamson, at p. 1424.)
The trial court ruled Chovanes’s testimony was not
substantial evidence the standard of care required a veterinarian
to disclose the results of abnormal hematology results, primarily
because, the trial court stated, Chovanes testified about his
personal practice but not the practice of other veterinarians in
California. That was not a fair reading of Chovanes’s testimony.
Viewing the evidence in the light most favorable to the verdict,
the jury could reasonably find based on Chovanes’s testimony
that the standard of care required Baker to disclose Little
Alexis’s abnormal hematology results to the Vaccarezzas. (See
Kruthanooch v. Glendale Adventist Medical Center, supra,
83 Cal.App.5th at p. 1122 [substantial evidence is “relevant
evidence that a reasonable mind might accept as adequate to
support a conclusion,” internal quotation marks omitted].)
Counsel for the Vaccarezzas asked Chovanes: “Are you
familiar with the standard of care for racetrack veterinarians?”
Chovanes said that, based on his 40 years of experience providing
veterinary care at racetracks, he was. After Chovanes testified
he had reviewed the California Veterinary Medicine Practice Act,
counsel for the Vaccarezzas asked Chovanes whether there were
“any differences between the California Practice Act and the
same standard of care that you utilize in your practice.”
Chovanes stated: “No. In all the states that I’ve worked and am
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licensed in, it’s all similar.” Counsel for the Vaccarezzas asked
whether California has “a separate standard of care with respect
to performing a CBC [complete blood count] or an SAA,” to which
Chovanes again responded, “No.”
After Chovanes discussed Little Alexis’s high SAA levels,
counsel for the Vaccarezzas asked Chovanes, “What did you
understand to be the standard of care for a veterinarian once he
receives information that this horse has an extremely high [SAA]
level? Would it be the standard of care to tell the owner or
trainer about these results as soon as you receive them?”
Chovanes said, “Yes.” He explained that a veterinarian should
disclose the SAA levels because they showed a huge systemic
reaction and huge complications and that the SAA test was the
“best we have” for determining in real time the level of
inflammation in the body. Counsel for the Vaccarezzas also
asked Chovanes, “Is it the standard of care to inform the client on
the day of the race if there were abnormal blood results?”
Chovanes answered, “Yes. That’s why we have the [SAA] test.”
The trial court focused on the fact Chovanes did not testify
about “how veterinarians in California reported the tests in
2014.” Putting aside that Chovanes did testify he was familiar
with the standard of care in California and that his practice
conformed with that standard, Chovanes did not have to discuss
the practice of veterinarians in California specifically. “The test
for determining [an expert witness’s] familiarity with the
standard of care is knowledge of similar conditions.” (Avivi v.
Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th
463, 470-471.) “‘[G]eographical location may be a factor
considered in making that determination’”—particularly in
“areas of medicine in which geographic location is especially
relevant”—but “[g]eographical generalizations or localizations do
15
not provide a practical basis for measuring ‘similar
circumstances.’” (Avivi, at pp. 468, 470; see Sinz v. Owens (1949)
33 Cal.2d 749, 756; Borrayo v. Avery (2016) 2 Cal.App.5th 304,
311.) Chovanes testified he was familiar with the standard of
care for racehorse veterinarians providing care at the track based
on his 40 years of experience in the industry, and he explained
why the standard of care required a veterinarian to disclose
abnormal SAA results before a race. That was sufficient. (See
Borrayo, at p. 312 [medical professional may establish familiarity
with standard of care through his training and experience].)
Baker relies heavily on Quigley v. McLellan, supra,
214 Cal.App.4th 1276. In that case the plaintiff, the purchaser of
a show jumping horse, hired the defendant veterinarian to
examine the horse before the plaintiff purchased it. (Id. at
pp. 1280-1281.) The plaintiff bought the horse, which later
developed injuries that prevented it from competing. The
plaintiff sued the veterinarian, claiming the veterinarian’s
examination was negligent. (Id. at pp. 1281-1282.) At trial, the
plaintiff’s expert testified the standard of care during a
prepurchase examination required the veterinarian to “identify[ ]
the problems” with the horse, “document[ ] them,” and “explain[ ]
the relevance.” (Id. at p. 1284.) The expert testified the
veterinarian fell below the standard of care because the
veterinarian advised the plaintiff the horse was suitable for its
intended use, even though the horse had abnormalities in its
neck and spine, and because the veterinarian’s prepurchase
examination report failed to include the abnormalities in the
horse’s medical history. (Id. at pp. 1284-1285.) The court in
Quigley reversed the judgment in favor of the plaintiff, ruling she
had failed to establish a recognized standard of care because her
expert witness “simply disagreed with the conclusions that [the
16
veterinarian] drew from the prepurchase examination” and
thought “the best approach” would be to disclose more
information to the owner. (Id. at p. 1285.) The expert witness
did not, according to the court in Quigley, explain “how an
average veterinarian of ordinary skill would have treated the
facts of this case differently.” (Id. at p. 1286.)
Though Quigley gives the Vaccarezzas a run for their
money (and the trial court relied on the case), it ultimately is
distinguishable. First, the expert witness in Quigley testified
only generally about what the standard of care required during a
prepurchase examination—that is, identifying the problems,
documenting them, and explaining their relevance. In contrast,
Clark specifically testified the standard of care required a
veterinarian to disclose abnormal hematology results the day
before a race and, even more specifically, to disclose extremely
high SAA levels. While Clark may not have stated in exact words
that an “average veterinarian of ordinary skill” would have done
so, it was fairly and directly implied from his testimony. (See
Keen v. Prisinzano (1972) 23 Cal.App.3d 275, 280 [“[e]ven where
expert testimony [on the standard of care] is required, . . . the
jury is entitled to draw reasonable inferences” from the expert’s
testimony “in finding the standard of care”].)
Second, Baker did not present any evidence challenging
Clark’s description of the standard of care—at least with respect
to whether the standard of care required disclosure of the
hematology results. Baker never claimed that, in his professional
judgment, disclosure of the hematology results was not medically
necessary. To the contrary, Baker admitted his normal practice
was to discuss all abnormal results with clients. (See Yazdi v.
Dental Bd. of California (2020) 57 Cal.App.5th 25, 40 [substantial
evidence supported the finding the standard of care required a
17
dentist to obtain informed written consent from patients prior to
treatment where the petitioner’s expert testified that was the
standard of care and the dentist’s expert admitted that was his
regular practice].)
Baker also cites Williamson v. Prida, supra, 75 Cal.App.4th
1417. In Williamson the owners of a racehorse sued a
veterinarian for malpractice, claiming the veterinarian
negligently administered a shot to the horse. (Id. at p. 1420.)
The court in Williamson reversed the judgment in favor of the
owners, holding the owners failed to show the veterinarian
breached the applicable standard of care. (Ibid.) Williamson too
is distinguishable. In that case the owners’ expert witness did
not testify the standard of care required the veterinarian to treat
the horse differently. The expert witness testified only that he
“didn’t agree with” the veterinarian, that he “couldn’t see the
reason” the veterinarian administered a particular drug, and that
the injection was not “proper.” (Id., at pp. 1425-1426; see
Rasmussen v. Shickle (1935) 4 Cal.App.2d 426, 429 [“‘Proper
treatment implies that no error shall be committed . . . , that an
approximate perfect result will be produced, that such result
is guaranteed, whereas the law only demands that the physician
use reasonable care to attain such approximate perfection’”].)
Here, Clark didn’t testify that he simply disagreed with Baker’s
approach; he specifically stated that Baker’s failure to disclose
the hematology results fell below the standard of care in the
industry.
The trial court erred in granting Baker’s motion for
judgment notwithstanding the verdict. Therefore, the judgment
must be reversed.
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B. The Trial Court Erred in Denying Baker’s Motion for
a New Trial
Baker argues in his cross-appeal that, even if the trial court
erred in granting his motion for judgment notwithstanding the
verdict, we should not reinstate the verdict because the court
erred in denying his motion in the alternative for a new trial. He
is right this time.
1. Applicable Law and Standard of Review
Code of Civil Procedure section 657 authorizes the trial
court to vacate a verdict and grant a new trial on certain grounds
“materially affecting the substantial rights” of a party, including
“[e]xcessive or inadequate damages.” (Code Civ. Proc., § 657,
subd. (5).) Code of Civil Procedure section 657 further provides:
“A new trial shall not be granted upon the ground of . . .
excessive or inadequate damages, unless 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.”
“The amount of damages is a fact question, first committed
to the discretion of the jury and next to the discretion of the trial
judge on a motion for new trial.” (Seffert v. Los Angeles Transit
Lines (1961) 56 Cal.2d 498, 506; see Pool v. City of Oakland
(1986) 42 Cal.3d 1051, 1067; Phipps v. Copeland Corp. LLC
(2021) 64 Cal.App.5th 319, 338; Bigler-Engler v. Breg, Inc. (2017)
7 Cal.App.5th 276, 299.) Where a trial court denies a motion for
a new trial based on excessive damages, “‘[w]e review the jury’s
damages award for substantial evidence, giving due deference to
the jury’s verdict and the trial court’s denial of the new trial
motion.’” (Burchell v. Faculty Physicians & Surgeons etc. (2020)
54 Cal.App.5th 515, 527; see Bigler-Engler, at p. 300.)
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“In considering the contention that the damages are excessive,”
we “must determine every conflict in the evidence” in favor of the
prevailing party and give that party “the benefit of every
inference reasonably to be drawn from the record.” (Seffert, at
p. 508; see Burchell, at p. 527; Bigler-Engler, at p. 300.)
2. Substantial Evidence Did Not Support the Jury’s
Damages Award
Baker argues that the jury’s award of damages was
excessive and that he is entitled to a new trial because the
Vaccarezzas failed to prove “some negligence on the part of
[Baker] caused a physical injury to [Little Alexis] . . . sufficiently
serious and permanent” to reduce Little Alexis’s value by over
$1 million.6 Baker is legally and factually correct.
To prevail on a cause of action for veterinary malpractice,
the plaintiff must prove “some injury to the owner [of the animal]
proximately caused by [the veterinarian’s] departure” from “the
relevant recognized standard of care exercised by other
veterinarians.” (Williamson v. Prida, supra, 75 Cal.App.4th at
p. 1425.) “Actions for veterinary malpractice . . . seek damages
for property damage because animals are a form of personal
property under California law”; a “claim for professional
negligence against a veterinarian is thus a claim for property
6 Baker also moved for judgment notwithstanding the verdict
on the ground the Vaccarezzas did not provide “substantial
evidence concerning medical causation of compensable damage.”
The trial court did not grant the motion for judgment
notwithstanding the verdict on this ground, and Baker does not
argue the trial court should have granted the motion on this
ground. Baker seeks a new trial on remand, not judgment.
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damage.” (Scharer v. San Luis Rey Equine Hospital, Inc. (2012)
204 Cal.App.4th 421, 428.) Generally, a plaintiff may recover as
damages for tortious injury to personal property
“‘the depreciation in value (the measure being the difference
between the value immediately before and after the injury), and
compensation for the loss of use.’” (Hand Electronics, Inc. v.
Snowline Joint Unified School Dist. (1994) 21 Cal.App.4th 862,
870; see Pacific Gas & Electric Co. v. Mounteer (1977)
66 Cal.App.3d 809, 812 [“the measure of damages for tortious
injury to personal property is the difference between the market
value of the property immediately before and immediately after
the injury, or the reasonable cost of repair if that cost be less”];
Smith v. Hill (1965) 237 Cal.App.2d 374, 388 [same].)7 Therefore,
the proper measure of the Vaccarezzas’ damages was the
depreciation in Little Alexis’s value immediately after the
injuries proximately caused by Baker’s negligent care.8 (See
Fulle v. Kanani (2017) 7 Cal.App.5th 1305, 1312 [“[t]he measure
of damages in California for tortious injury to property is ‘the
7 With one exception: The “usual standard of recovery for
damaged personal property—market value—is inadequate when
applied to injured pets,” which generally have no market value.
(Martinez v. Robledo (2012) 210 Cal.App.4th 384, 392.)
Therefore, an injured pet’s owner may “recover the reasonable
and necessary costs incurred in the treatment and care of the
animal attributable to the injury,” even if the costs exceed the
animal’s market value. (Ibid.) The Vaccarezzas did not seek the
costs of Little Alexis’s medical treatment (even assuming she
were a “pet” for purposes of California tort law).
8 The Vaccarezzas did not attempt to prove any loss of use
damages.
21
amount which will compensate for all the detriment proximately
caused thereby’”]; see also Civ. Code, § 3333.)
The Vaccarezzas presented evidence Little Alexis’s value
depreciated $1,060,000 between 2014 and 2015. Clark stated his
opinions that Little Alexis’s value prior to the Breeders’ Cup race
was $1,500,000 and that the horse was worth the $440,000 the
Vaccarezzas sold her for one year later. The problem for the
Vaccarezzas is that they did not present evidence the
depreciation during that year was from an injury proximately
caused by Baker’s negligent care. As discussed, the Vaccarezzas’
malpractice theory at trial (based on Chovanes’s testimony) was
that Baker breached the standard of care by failing to disclose
Little Alexis’s hematology results and failing to advise the
Vaccarezzas to scratch Little Alexis from the race and that
running Little Alexis in the race caused the fever that prevented
the Vaccarezzas from obtaining the health certificate necessary to
fly her to Kentucky (and perhaps caused the increased
inflammation in her neck that returned immediately after the
race).
Even under the Vaccarezzas’ theory, however, there was no
substantial evidence Little Alexis’s value decreased by over
$1 million because she ran the Breeders’ Cup race and developed
the fever that prevented her from flying to Kentucky. The
evidence at trial was that, within a few days after the race,
Little Alexis’s temperature had stabilized and she was healthy
enough to fly back to Florida. No one gave an opinion on what
the Vaccarezzas could have sold Little Alexis for once she
returned to Florida. There was no evidence showing how much
(if any) Little Alexis’s value declined immediately after she ran
the Breeders’ Cup and recovered from the fever that caused her
to miss the auction in Kentucky. The effects caused by Baker’s
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malpractice in November 2014—at least the effects the
Vaccarezzas attempted to prove—dissipated long before the
Vaccarezzas sold Little Alexa for $440,000 in October 2015.
Indeed, the Vaccarezzas’ evidence was that Little Alexis’s
value dropped to $440,000 by October 2015, not because she had
developed a fever or missed the auction, but because she never
ran as well as she had prior to the Breeder’s Cup. When
discussing Little Alexis’s depreciation in value, Clark explained
that “she ran again” after the Breeders’ Cup race, but that she
“was never as good” and “didn’t show enough.”9
The Vaccarezzas argue there was substantial evidence
Little Alexis’s value had declined to $440,000 by the time she
“was ‘repaired’ sufficiently to return to the races.’” (As discussed,
Little Alexis did not race for five months after the Breeders’ Cup.)
The Vaccarezzas put the verdict before the evidence. First, no
one testified Little Alexis’s value was $440,000 when she
returned to racing after five months. Clark testified that, in his
opinion, Little Alexis’s value was $440,000 when the Vaccarezzas
sold her in October 2015 (several months after Little Alexis
began racing again and was performing poorly). When counsel
for the Vaccarezzas asked Clark whether he had “an opinion as to
what [Little Alexis’s] value was at the time she resumed racing,”
Clark responded: “You’d probably reduce that value [from $1.5
million]. . . . I’d say she would have been a little more difficult to
sell, and you’d want to reestablish her form if your intention was
to sell her.” A “little bit more difficult to sell” was not substantial
9 In horse racing, to “show” is to finish in third place or
better. (Panas v. Texas Breeders & Racing Assn.
(Tex.Ct.App. 1935) 80 S.W.2d 1020, 1022.)
23
evidence Little Alexis’s value decreased from $1.5 million to
$440,000; that’s evidence of a different color.10
Second, even if there were substantial evidence Little
Alexis’s value dropped to $440,00 by the time she started racing
again several months after the Breeders’ Cup race, there was no
substantial evidence Little Alexis was unable to race because of
injuries caused by Baker’s negligence. “‘In any negligence
case”—including those asserting medical (or veterinary)
malpractice—“the plaintiff must present evidence from which a
reasonable fact finder may conclude that defendant’s conduct
probably was a substantial factor in bringing about the
harm.” (Uriell v. Regents of University of California (2015)
234 Cal.App.4th 735, 746; see Espinosa v. Little Co. of Mary
Hospital (1995) 31 Cal.App.4th 1304, 1313-1314.) That the
malpractice was a substantial factor in causing the harm “must
be proven within a reasonable medical probability based upon
competent expert testimony. Mere possibility alone is
insufficient to establish a prima face case.” (Jameson v. Desta
(2013) 215 Cal.App.4th 1144, 1166; see Kline v. Zimmer, Inc.
(2022) 79 Cal.App.5th 123, 129; Lattimore v. Dickey (2015)
239 Cal.App.4th 959, 970.)
To recover the depreciation in Little Alexis’s value from
before the Breeders’ Cup to after she returned to racing five
10 The Vaccarezzas also cite Carlo’s and Van Leer’s testimony
as evidence Little Alexis’s value decreased to $440,000 by the
time she started racing. That testimony does not help the
Vaccarezzas. After testifying that he sold her in 2015, Carlo
stated only that Little Alexis’s value was $440,000. Van Leer
offered an opinion only on Little Alexis’s value in October and
November 2014. Neither witness testified about Little Alexis’s
value when she started racing again.
24
months later, the Vaccarezzas’ would have had to show Baker’s
malpractice was a substantial factor in causing an injury that
prevented Vaccarezza from racing for those five months. Thus,
even if the Vaccarezzas proved that, but for Baker’s negligent
failure to disclose the hematology results, they would have
scratched Little Alexis from the Breeders’ Cup race, they still had
to show through competent expert testimony that running Little
Alexis in the Breeders’ Cup race was, to a reasonable medical
probability, a substantial factor in causing injuries that
prevented her from racing for several months.
There was scant evidence of what injuries (if any)
Little Alexis suffered that prevented her from racing for five
months. Carlo testified her vein would “blow up” every time they
started to increase the intensity of her training. That was pretty
much it. But there was no evidence or explanation of how
running Little Alexis in the Breeders’ Cup race was, to a
reasonable degree of medical probability, a substantial factor in
causing Little Alexis’s vein to “blow up” when the Vaccarezzas
trained her. In fact, Chovanes testified that in his opinion Little
Alexis’s initial vein injury was caused by the shots Baker
administered two days before the race (which, again, was not a
basis of the Vaccarezzas’ malpractice claim). Because the
Vaccarezzas did not claim or show Baker negligently
administered the shots that initially caused the vein injury, it
was not enough for them to show Little Alexis continued to suffer
from a vein injury after the race. Rather, the Vaccarezzas had to
show that running Little Alexis in the race was a substantial
factor that caused injuries that prevented her from racing. (See
Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498 [“There can be
many possible ‘causes,’ indeed, an infinite number of
circumstances which can produce an injury or disease. A possible
25
cause only becomes ‘probable’ when, in the absence of other
reasonable causal explanations, it becomes more likely than not
that the injury was a result of its action.”].) They did not make
that showing. When asked by counsel for the Vaccarezzas
whether the bulge in Little Alexis’s neck would have returned
had she not run, Chavannes said he did not know.
At one point counsel for Vaccarezza asked Chovanes
whether he had an opinion whether Little Alexis “was harmed
because [she] raced.” Chovanes responded that Little Alexis “had
a thrombosed vein on the left side,” “was lethargic,” and “didn’t
run for five or six months after that while this whole thing was in
recovery.” Chovanes, however, did not explain why running
Little Alexis in the Breeders’ Cup race kept her from racing for
five months. (See Sanchez v. Kern Emergency Medical
Transportation Corp. (2017) 8 Cal.App.5th 146, 155 [“when an
expert’s opinion is purely conclusory because unaccompanied by a
reasoned explanation connecting the factual predicates to the
ultimate conclusion, that opinion has no evidentiary value”]; ibid.[“the plaintiff must offer an expert opinion that contains a
reasoned explanation illuminating why the facts have convinced
the expert, and therefore should convince the jury, that it is more
probable than not the negligent act was a cause-in-fact of the
plaintiff's injury”]; Jennings v. Palomar Pomerado Health
Systems, Inc. (2003) 114 Cal.App.4th 1108, 1118 [same].) Nor did
Chovanes (or any other medical expert) testify it was reasonably
probable Little Alexis could have returned to racing any earlier
had she not run in the Breeders’ Cup race, given that her vein
injury developed before the race. (See Mayes v. Bryan (2006)
139 Cal.App.4th 1075, 1093 [to prove malpractice was a
substantial factor in causing an injury, the evidence must “‘allow
the jury to infer that in the absence of the defendant’s negligence,
26
there was a reasonable medical probability the plaintiff would
have obtained a better result’”]; Espinosa, supra, 31 Cal.App.4th
at p. 1315 [same].)
DISPOSITION
The judgment is reversed. The trial court is directed to
vacate its orders granting Baker’s motion for judgment
notwithstanding the verdict and denying his motion for a new
trial, and enter new orders denying Baker’s motion for judgment
notwithstanding the verdict and granting his motion for a new
trial. The parties are to bear their costs on appeal.
SEGAL, J.
We concur:
PERLUSS, P. J.
MARTINEZ, J.
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