Hernandez v. K.B. Ins. Co. CA1/1

Filed 10/6/21 Hernandez v. K.B. Ins. Co. CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
ROBERTO HERNANDEZ,
Plaintiff and Respondent, A158709
v.
K.B. INSURANCE CO., LTD., (Solano County
Intervenor and Appellant. Super. Ct. No. FCS046123)
A jury awarded respondent Roberto Hernandez $962,077 in damages
against appellant K.B. Insurance Co., Ltd. (KBIC) in this slip-and-fall case.
On appeal, KBIC argues that it is entitled to a new trial because the trial
court (1) abused its discretion in limiting KBIC’s cross-examination of
Hernandez and recross-examination of his orthopedic surgery expert; and
(2) erred in declining to instruct the jury using the CACI No. 105 insurance
instruction. In the alternative, KBIC argues that the jury verdict was
excessive and should have been reduced by $386,000 because insufficient
evidence supports the award for future lost wages. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Hernandez sued Golden Dragon Buffet after sustaining injuries to his
right knee from a fall at the restaurant in 2014. After intervening as the
responsible insurer, KBIC stipulated to liability, and the parties proceeded to
trial in 2019 on the issue of damages.
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A. Opening Statements
During her opening statement, Hernandez’s counsel described the issue
before the jury as the “harms and losses” caused by a quadriceps tendon tear
Hernandez suffered from his fall and a subsequent surgery that was only
partially successful. She claimed that the 2014 injury “continues to the
present day” and “will continue into the future.” Counsel noted that since his
2014 injury, Hernandez also tore his meniscus and had surgery on it, but
these were “unrelated” to the fall and Hernandez was not seeking medical
expenses for that surgery.
In his opening statement, KBIC’s attorney told the jury that it would be
hearing from its expert that Hernandez had “recuperated” from his 2014
quadriceps tendon tear and that his subsequent medical treatment was
“unrelated” to that injury.
B. Trial Testimony
1. Hernandez
Hernandez testified that he was currently employed as a letter carrier
for the U.S. Postal Service. After his fall, he had surgery to reattach his
quadriceps tendon. He was off work for five months, but he returned to work
because he had “[n]o money” and “no leave left.” He testified that the pain in
his right knee had continued since the incident in 2014. He had a follow-up
MRI in 2017, and he was told that he still had swelling in his knee because
the tendon was not completely attached. Hernandez had planned to work
until he reached “social security age” in 2023, and his supervisor had allowed
him extra time to run routes due to his injury. But he felt he could not
physically work for those additional years due to the injury. He stated he
had “developed too many problems over the years since this happened” and
was “tired” of treating the pain in his knee.
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During cross-examination, counsel for KBIC asked Hernandez about
when he first started having pain in either knee. Hernandez responded that
he had surgery on his left knee around 2010. When asked how that injury
occurred, Hernandez’s counsel objected to the question as beyond the scope of
direct. The trial court sustained the objection and noted it was “not relevant
either.” Counsel for KBIC continued his questioning, and asked: “And then
in August of 2018, you had a meniscus cartilage issue that required surgery,
right?” Hernandez’s counsel objected to the question as beyond the scope of
direct, and the trial court sustained the objection.
2. Hernandez’s Grandson
Hernandez’s grandson testified that, since the 2014 incident,
Hernandez had stopped doing various household chores and other physical
activities. On cross-examination, counsel for KBIC asked if the grandson
understood that Hernandez had a meniscus repair surgery after the 2014
incident. The grandson responded that he did.
3. Dr. Kofoed
Excerpts of videotaped deposition testimony from Dr. John Kofoed were
played for the jury. Dr. Kofoed performed Hernandez’s quadriceps tendon
surgery in 2014. Dr. Kofoed also reviewed the follow-up MRI in 2017, which
indicated there was a tendon tear that suggested “incomplete healing” or
separation of the tendon from the knee bone. When asked if Hernandez
would need to retire early, Dr. Kofoed responded: “Well, potentially from
pain issues that he is currently experiencing. One from the meniscus tear,
one from the quadriceps tendon tear. At the time, this may accelerate his
need to retire.”
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4. Dr. Barry
Dr. Piers Barry testified as an orthopedic surgery expert who treated
Hernandez from 2017 to 2019. In 2017, Dr. Barry found that Hernandez had
“ongoing pain at the site of his quadriceps tendon repair” and ordered an
MRI. The MRI showed “either partial re-tear or nonhealing of part of his
quadriceps tendon.” The MRI also included images of other areas of the
knee, which showed “good articular cartilage in a normal meniscus.” Dr.
Barry testified that when Hernandez is “in the more active part of his work,
it seems to really trigger pain symptoms in his knee” and that if Hernandez
weren’t doing that, he would have less pain.
During redirect, Dr. Barry testified that the swelling in Hernandez’s
knee seems to be “directly related” to his quadriceps tendon tear. On recross,
counsel for KBIC asked Dr. Barry whether a torn meniscus can cause
swelling. Dr. Barry responded: “If you have a currently torn meniscus, that
could certainly cause swelling.” Counsel for KBIC then asked: “And after it’s
been repaired, a result of ongoing issues regarding the meniscus can be
swelling too, can it not?” Dr. Barry responded: “I don’t believe there was a
meniscal repair.” As KBIC’s counsel began to repeat that answer,
Hernandez’s counsel objected as beyond the scope of redirect. The trial court
sustained the objection.
5. Dr. Peatman
KBIC’s orthopedic surgery expert Dr. Thomas Peatman testified that
he personally examined Hernandez in 2018, two months before Hernandez
had surgery to repair a medial meniscus tear. The tear did not appear on the
MRI from 2017. Dr. Peatman concluded that the 2018 meniscus surgery was
unrelated to the 2014 fall, and that the “most likely cause” of Hernandez’s
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current pain and swelling in the knee was “the medial compartment arthritis
that had a meniscus tear.”
6. Economic Consultant Ines
Economic consultant Laura Ines testified regarding the calculation of
damages for Hernandez, including future wage losses if Hernandez was
unable to continue working due to the 2014 injury. She calculated those
future wage losses to range from $127,000 (if Hernandez retired one year
early) to $519,000 (if Hernandez retired four years early). Ines used
Hernandez’s current $65,766 annual salary, the average overtime he had
worked since his injury, and other factors like inflationary growth in making
these calculations.
C. Jury Instructions
At a hearing to discuss preliminary jury instructions, counsel for KBIC
argued that the standard CACI No. 105 instruction1 should be provided to the
jury because KBIC would be identified as “KB Insurance Company” during
the trial. The trial court denied the request, reasoning that the instruction
was inappropriate because it related to liability insurance, but invited KBIC
to draft a special instruction to address its concerns. At a hearing to discuss
closing jury instructions, KBIC’s counsel stated that it had declined to draft a
special instruction, but now requested CACI No. 5001 be provided.
Hernandez’s counsel proposed the following modified instruction: “You must
not consider whether the Defendant has liability insurance, or whether the
Plaintiff has health insurance. The presence or absence of insurance is
totally irrelevant. You must decide this case based only on the law and the
1The standard CACI No. 105 instruction reads: “You must not
consider whether any of the parties in this case has insurance. The presence
or absence of insurance is totally irrelevant. You must decide this case based
only on the law and the evidence.”
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evidence.” KBIC’s counsel responded: “I think it’s an excellent suggestion.”
The trial court noted the stipulation of the parties, and subsequently
provided the modified instruction to the jury.
D. Verdict, Judgment, and Post-Trial Motions
The jury awarded Hernandez $962,077 in total damages, including
$386,000 in future lost earnings and $212,440 in future medical care.
Judgment was entered in accordance with the verdict.
KBIC subsequently filed a motion for a new trial on several grounds,
including that (1) the trial court improperly sustained objections to cross-
examination questions about Hernandez’s meniscus repair surgery as beyond
the scope of direct; (2) the trial court erroneously refused to instruct the jury
using the standard CACI No. 105 instruction; and (3) the jury’s verdict was
excessive and must be reduced by $598,440 because there was an inadequate
foundation for the damages awarded for future lost wages and future medical
care. KBIC also filed a motion for judgment notwithstanding the verdict
(JNOV), arguing that the evidence was insufficient to support the future lost
wages and future medical care awards. The trial court denied both motions.
II. DISCUSSION
A. The Trial Court Did Not Prejudicially Abuse Its Direction in
Sustaining the Evidentiary Objections
KBIC argues that it is entitled to a new trial because the court abused
its discretion in sustaining objections to its cross-examination of Hernandez
and recross-examination of Dr. Barry regarding the 2018 meniscus surgery,
unduly restricting KBIC’s right to confrontation.
Cross-examination is generally limited to the scope of direct
examination, and recross-examination is similarly limited to the scope of
redirect. (Evid. Code §§ 762, 773, subd. (a); People v. ConAgra Grocery
Products Co. (2017) 17 Cal.App.5th 51, 146.) “The extent of cross-
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examination is a matter over which the trial court is given wide discretion,
and the only grounds for error are an abuse of that discretion.” (People By
and Through Department of Public Works v. Murray (1959) 172 Cal.App.2d
219, 232.)
Here, KBIC’s counsel attempted to ask Hernandez on cross-
examination whether he had meniscus surgery in 2018. Hernandez had
testified on direct regarding his 2014 injury, subsequent quadriceps tendon
surgery, and continuing knee pain, but not about the meniscus surgery.
Similarly, KBIC’s counsel attempted to question Dr. Barry about the
meniscus surgery during recross-examination. Dr. Barry had testified on
redirect regarding Hernandez’s quadriceps tendon and the relationship
between his 2014 injury and current symptoms, but not about the meniscus
surgery.
Given the clear relevancy of the meniscus surgery to Hernandez’s
claims of injury, we question whether it was proper for the trial court to
disallow KBIC’s efforts to inquire into it during these cross- and recross-
examinations. But even if the court abused its discretion in disallowing the
testimony, no prejudice resulted from the rulings. (People v. Sully (1991)
53 Cal.3d 1195, 1220 [abuse of discretion in refusing cross-examination is
subject to harmless error analysis, based on factors such as the importance of
witness’ testimony, presence or absence of other evidence corroborating or
contradicting testimony, and overall strength of case].) KBIC argues that it
was unduly prejudiced because Dr. Barry’s testified that he did not “believe
there was a meniscal repair,” and this left the jury with “the entirely false
impression that there was doubt as to whether a medial meniscus tear
surgery had ever taken place at all.” But plenty of comments and evidence
were presented about the meniscus surgery, and its occurrence could not
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seriously have been in doubt. Hernandez’s counsel mentioned during opening
statements that Hernandez had meniscus repair surgery after his 2014
injury. And witnesses testified about the meniscus surgery, including
Hernandez’s grandson and Dr. Peatman. Indeed, Dr. Peatman testified
about the surgery at length, and his conclusion that the meniscus was the
“most likely cause” of Hernandez’s current knee pain. In short, KBIC had
ample opportunity to present evidence establishing Hernandez’s meniscus
surgery and did so.
The trial court did not prejudicially abuse its discretion in sustaining
the objections.
B. The Trial Court Did Not Err in Declining to Provide the CACI No.
105 Instruction
KBIC also argues that it is entitled to a new trial because, while it
agreed to a modified version of CACI No. 5001 in the closing jury
instructions, the jury was “tainted” from the outset when the trial court
refused to give CACI No. 105 in the preliminary instructions. We are again
not persuaded.
We review claims of instructional error de novo. (Ted Jacob
Engineering Group, Inc. v. Ratcliff Architects (2010) 187 Cal.App.4th 945,
961.) “It is well established in California that the correctness of jury
instructions is to be determined from the entire charge of the court, not from
a consideration of parts of an instruction or from a particular instruction.”
(People v. Burgener (1986) 41 Cal.3d 505, 538.)
The modified instruction provided here included all three elements of
the standard CACI No. 105 instruction: (1) the jury must not consider
whether the parties had insurance; (2) the presence or absence of insurance
was totally irrelevant; and (3) the jury must decide the case based only on the
law and the evidence. KBIC offers no authority for its position that timing of
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the instruction “forever tainted” the case, and we must presume the jury
followed their instruction in the absence of contrary evidence. (People v.
Harris (2005) 37 Cal.4th 310, 350.) We conclude there was no instructional
error.
C. Substantial Evidence Supports the Verdict on Future Lost Wages
While KBIC maintains that it is entitled to a new trial, it argues in the
alternative that the jury verdict was excessive and should have been reduced
by $386,000 because there was insufficient evidence supporting the award for
future lost wages. Specifically, KBIC contends that the evidence regarding
Hernandez’s need to retire due to his knee pain was “speculative.” Once
again, we are not persuaded.
“We review the jury’s damages award for substantial evidence, giving
due deference to the jury’s verdict.” (Bigler-Engler v. Breg, Inc. (2017)
7 Cal.App.5th 276, 300.) The amount of damages is a fact question “first
committed to the discretion of the jury.” (Seffert v. Los Angeles Transit Lines
(1961) 56 Cal.2d 498, 506 (Seffert).) “They see and hear the witnesses and
frequently, as in this case, see the injury and the impairment that has
resulted therefrom.” (Id. at pp. 506–507.) Accordingly, the appellate court
“can interfere on the ground that the judgment is excessive only on the
ground that the verdict is so large that, at first blush, it shocks the conscience
and suggests passion, prejudice or corruption on the part of the jury.” (Id. at
p. 507.)
“Whatever its measure in a given case, it is fundamental that ‘damages
which are speculative, remote, imaginary, contingent, or merely possible
cannot serve as a legal basis for recovery.’ ” (Piscitelli v. Friedenberg (2001)
87 Cal.App.4th 953, 989.) “However, recovery is allowed if claimed benefits
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are reasonably certain to have been realized but for the wrongful act of the
opposing party.” (Ibid.)
The evidence presented here was not too speculative to support the lost
wages award. Hernandez testified that the pain in his knee had continued
since the incident in 2014. While he had planned to work until 2023 when he
reached “social security age,” he testified that he could not physically work
for those additional years due to the injury. That testimony, in turn, was
supported by Dr. Kofoed’s testimony that Hernandez’s knee pain “may
accelerate his need to retire.”
Moreover, Ines calculated Hernandez’s future wage losses based on his
annual salary at the time of trial and average overtime he had worked since
his injury. She presented a range of losses from $127,000 to $519,000, based
on whether Hernandez would retire one to four years earlier than he
expected. The jury’s $386,000 award fell in the middle of that range. For
these reasons, we cannot say that the award of future lost wages shocked the
conscience. (Seffert, supra, 56 Cal.2d at pp. 506–507.)
DISPOSITION
The judgment and order denying the motions for new trial and JNOV
are affirmed. Respondent shall recover his costs on appeal.
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_________________________
Humes, P.J.
WE CONCUR:
_________________________
Banke, J.
_________________________
Sanchez, J.
Hernandez v. K.B. Insurance Co., LTD. A158709
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