Filed 4/9/14 Nichols v. Brugger CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

CLARISSA LONN-NICHOLS,
                                                                                           F066232
         Plaintiff and Appellant,
                                                                                 (Super. Ct. No. 633151)
                   v.

THEODORE BRUGGER,                                                                        OPINION
         Defendant and Respondent.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Stanislaus County. Roger
Beauchesne, Judge.
         Jakrun S. Sohdi, for Plaintiff and Appellant.
         McNamara, Ney, Beatty, Slattery, Borges & Ambacher, Wilma J. Gray and
Christopher T. Lustig for Defendant and Respondent.
                                                        -ooOoo-




*        Before Cornell, Acting P.J., Kane, J. and Franson, J.
          A jury awarded appellant, Clarissa Lonn-Nichols, $109,342.37 for personal injury
damages stemming from a traffic collision. The trial court granted respondent Theodore
Brugger’s motion for judgment notwithstanding the verdict (JNOV) and struck the jury’s
award of $49,500 for future medical expenses on the ground the evidence was
insufficient as a matter of law to support the jury’s verdict as to that award.
Subsequently, an amended judgment was entered for Lonn-Nichols in the amount of
$59,842.37. Lonn-Nichols appeals, challenging the granting of the JNOV.1 We will
affirm.
                         FACTS AND PROCEDURAL HISTORY
          In November 2006, Brugger’s truck ran a red light and struck the car Lonn-
Nichols was driving. Lonn-Nichols was transported to the hospital in an ambulance with
left hand, arm and neck pain. At the hospital, her neck was X-rayed, her arm was
splinted, and she was discharged with instructions to followup with her primary care
physician, Dr. Knapp, which she did promptly. She had a stiff neck and upper back,
which Dr. Knapp diagnosed as a cervical thoracic sprain. Dr. Knapp referred her to an
orthopedist, who diagnosed two broken bones in her hand and casted her arm.
          Lonn-Nichols continued to see Dr. Knapp for neck pain and headaches, which he
treated with medications and physical therapy, but her pain persisted. In 2009, Dr. Knapp
referred her to Dr. Levin, a neurologist, who diagnosed a C5-6 cervical disc protrusion
with radiculopathy. At trial, Dr. Levin testified he had not seen Lonn-Nichols since April
2010, but examined her on June 6, 2012, in the court hallway before he testified. Dr.
Levin opined that Lonn-Nichols’s problems would probably not resolve on their own and
future treatment options for problems such as hers would include physical therapy, pain
management and possibly surgery. In 2012, Dr. Knapp referred Lonn-Nichols to Dr. Ma,
a neurologist, for neck pain and headache. Dr. Ma did not testify but her medical records


          1     Lonn-Nichols does not challenge the order on the new trial motion.


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were admitted at trial. The records indicated there was no evidence of cervical
radiculopathy, but a recent MRI showed degenerative disc disease changes at the C5-6
level. Dr. Ma prescribed medications and physical therapy.
       Lonn-Nichols’s attorney referred her to Dr. Casey, an orthopedic surgeon, who
saw her in August 2010. Dr. Casey diagnosed a C5-6 disc protrusion with associated
radiculopathy. To treat her headaches, he recommended trigger point injections around
her cervical spine to relieve neck tension, which often caused headaches. While the shots
would help, he did not feel she was going to get better because her headaches were by
then chronic. If the trigger point injections no longer worked, he would try epidural
steroid injections. Dr. Casey did not know the cost of trigger point injections.
       Lonn-Nichols’s past medical expenses related to her injuries totaled $12,957.37.
Those expenses included $694.69 to Dr. Knapp, $281.46 to Dr. Levin for three visits, and
$932.23 to Dr. Ma for three visits. She also paid $800.61 for 11 or 12 sessions of
physical therapy, $804 for massage therapy, and $4,895 for 53 chiropractic visits.
Regarding future treatment, she anticipated treatment and monthly “shots” from Dr.
Knapp and continued treatment with Dr. Ma, “possibly” Dr. Levin, and whomever else
Dr. Knapp referred her to.
       Dr. Klein, an orthopedic surgeon who testified for the defense, examined Lonn-
Nichols in March 2011. Dr. Klein opined that Lonn-Nichols’s headaches and neck pain
did not result from injuries she suffered in the collision.
       At trial, Brugger conceded liability; the only issue for the jury was damages. In
closing argument, Lonn-Nichols asked the jury to award specific amounts for past
medical expenses and past lost wages, and suggested several ways for computing general
damages. She also argued she would require trigger point injections every three to four
months for the rest of her life but did not suggest a method to determine the costs of that
treatment. The jury was instructed that a 32-year-old female (Lonn-Nichols’s age) had a
remaining life expectancy of 50.3 years.


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       During deliberations, the jury asked, “Which doctor does the injections?” and
“What are her out-of-pocket costs per shot [trigger point injections]?” After conferring
with counsel, the court told the jurors that as to the first question, the court reporter would
look at her notes over the weekend and report back on Monday. As to the second
question, there was no evidence presented regarding Lonn-Nichols’s out-of-pocket costs
per trigger point injection. The jury then left for the weekend. The jury resumed
deliberations on Monday and reached a verdict before the court reporter reported her
findings to them.
       The jury awarded damages as follows:
       Past medical damages                        $12,957.37
       Past wage loss                              $8,750
       Future medical expenses                     $49,500
       Future wage loss                            $0
       Past pain and suffering                     $2,000
       Future pain and suffering                   $36,135
                     TOTAL                         $109,342.37
       Subsequently, Brugger moved for JNOV and for new trial pursuant to Code of
Civil Procedure section 629, on the ground that the evidence was insufficient as a matter
of law to support the jury’s verdict as to future medical expenses. In support of the
motions, counsel submitted two juror affidavits stating that the $49,500 amount of future
medical expenses was based on juror speculation that the cost of the injections would be
$1,500 per year for the remainder of Lonn-Nichols’s working life--33 years.
       In opposition to the motion, Lonn-Nichols objected to the juror affidavits but
submitted an affidavit from a third juror stating that the future medical expenses award
resulted from the fact that medical expenses for treatments and medications for the five
years since the collision amounted to $12,900. That information coupled with Lonn-
Nichols’s 33-year working career provided the basis for the future medical expenses


                                              4
award. The jury did not come up with a figure for trigger point injections because there
was no evidence of their costs. Lonn-Nichols argued the jury could draw reasonable
inferences about the cost of future medical care from the cost of past medical care.
       The trial court sustained the objections to the juror affidavits and granted JNOV as
to the jury’s award of $49,500 for future medical expenses, and conditionally granted the
motion for new trial unless the plaintiff consented to the reduction of future medical
expenses to zero. The court concluded there was no substantial evidence justifying the
award for future medical expenses.
                                       DISCUSSION
       On appeal, Lonn-Nichols challenges the order granting the motion for judgment
notwithstanding the verdict. She contends the court used an improper standard and
ignored reasonable inferences that supported the jury’s verdict.
Standard for Granting JNOV and Standard of Review
       A party is entitled to JNOV only if there is no substantial evidence to support the
verdict and the evidence compels a judgment for the moving party as a matter of law.
(Paykar Constr. v. Spilat Constr. Corp. (2001) 92 Cal.App.4th 488, 493.) The trial court
must view the evidence in the light most favorable to the verdict, disregard conflicting
evidence, and indulge in every legitimate inference to support the verdict. (Id. at p. 494.)
On appeal, we determine de novo whether there is substantial evidence to support the
verdict and whether the moving party is entitled to judgment in its favor as a matter of
law. (Ibid.)
Future Medical Damages
       A plaintiff is entitled to recover the reasonable cost of necessary medical care,
including future expenses. (6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, §
1670.) Whether future medical care is reasonably certain to occur is a question of fact for
the jury. (Ostertag v. Bethlehem Shipbuilding Corp. (1944) 65 Cal.App.2d 795, 805-806,
807.) To establish reasonable certainty, it is not necessary that a physician testify that he


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or she is reasonably certain the plaintiff will be disabled in the future. There need only be
evidence that plaintiff’s future disability is reasonably certain. That the amount of future
damages may be difficult to measure or subject to various possible contingencies, does
not bar recovery. (Garcia v. Duro Dyne Corp. (2007) 156 Cal.App.4th 92, 97-98
(Garcia).)
       In this case, Lonn-Nichols’s testimony that she continued to have headaches and
neck pain and Drs. Casey and Levin’s testimonies that her headaches and neck pain were
chronic and were not going to resolve on their own constituted substantial evidence that
she was reasonably certain to require future medical care to address the harm resulting
from the collision.
Amount
       The fact of damage must be clearly established but the amount need not be proved
with the same degree of certainty. The amount may be left to reasonable approximation
or inference because a future damages award is based on probabilities. (6 Witkin,
Summary of Cal. Law, supra, Torts, § 1551.) Nevertheless, the evidence must show a
degree of probability that amounts to a reasonable certainty that prospective damages will
result from the original injury. (Behr v. Redmond (2011) 193 Cal.App.4th 517, 533
(Behr).)
       Generally, the physician who testifies that future medical care is necessary offers
an opinion as to the probable costs. Normally, future medical expenses are a subject that
is sufficiently beyond common experience that expert opinion is useful to assist the trier
of fact. (Evid. Code, § 801; Haning et al., Cal. Practice Guide: Personal Injury (The
Rutter Group 2013) ¶ 3:62 (rev. # 1, 2013).) In this case, Dr. Casey, who recommended
the trigger point injections, had no opinion as to their cost. Four cases are instructive in
resolving this appeal.
       Niles v. City of San Rafael (1974) 42 Cal.App.3d 230 (Niles) illustrates very
specific evidence of future medical expenses. There, an 11-year-old plaintiff suffered


                                              6
permanent paralysis as a result of medical error. The plaintiffs presented detailed
evidence to support the damages they claimed and the jury awarded about $2 million for
future medical expenses. (Id. at pp. 237, 241.) The appellate court rejected defendants’
substantial evidence challenge to the award. The award was supported amply by
evidence that monthly visits to a pediatrician or family physician and yearly visits to an
orthopedist for examinations would cost $350 per year, two visits per year to a physiatrist
and one annual visit to a urologist would be $100 per year, four visits to a psychiatrist
would cost $200 per year, physical therapy would cost $60 a week, dental care necessary
to correct overgrowth of the gums caused by drugs used to control epilepsy would cost
$100 per year, and regular medical tests and X-rays would cost $245 per year. The total
cost for the expected 56 years remaining in plaintiff’s life was derived by using an
increase factor of 6 percent for physicians’ services and 4 1/2 percent for laboratory tests
and X-rays, discounted by 5 percent. (Id. at p. 242.) In addition, medical supplies and
equipment would cost a total of $41,637. (Ibid.) The award also included a $50,000 fund
to protect plaintiff against medical emergencies and $1,299,637 for round-the-clock
attendant care for the rest of his expected life. (Id. at pp. 242-243.)
       Garcia, supra, 156 Cal.App.4th 92, illustrates less specific, but still sufficient,
evidence of future medical expenses. There, the plaintiff had been treated for
mesothelioma and was in remission at the time of trial. (Id. at p. 98.) Nevertheless, the
jury awarded him $200,000 for future medical expenses. (Id. at p. 95.) The appellate
court rejected defendant’s challenge to the future damages award. While the evidence
was conflicting, there was substantial evidence that plaintiff’s mesothelioma was
reasonably certain to recur. (Id. at p. 98.) Plaintiff’s oncologist confirmed the likelihood
that further chemotherapy would be necessary and described the expenses involved in
monitoring plaintiff before any recurrence occurred. In addition, an expert estimated
total future expenses of $150,000 to $200,000, which included ICU (intensive care unit)
treatment at $4,000 to $15,000 per day, and $11,500 for one dose of chemotherapy.


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(Ibid.) In affirming the award, the court stated that the plaintiff was not required to prove
with certainty the extent of the harm he had suffered as a result of the defendant’s
conduct. Although it was desirable that the amount of damage be as definite as
reasonably possible, an injured person should not be deprived of substantial
compensation merely because he cannot prove with complete certainty the extent of harm
he has suffered. (Id. at p. 99.) Therefore, even though no expert could state a precise
date of recurrence or a precise amount of future damages, the evidence was sufficient for
the jury to approximate the future expenses. (Ibid.)
       In contrast, in Behr, supra, 193 Cal.App.4th 517, the court found the evidence of
future medical expenses insufficient to support the jury’s award. There, defendant
negligently transferred genital herpes to plaintiff. The jury awarded plaintiff $3,600 for
past medical expenses and $2.5 million for future medical care. (Id. at p. 524.) On
appeal, the court concluded the future medical care award was not supported by
substantial evidence. First, there was no evidence plaintiff would need any future
medical care other than herpes medication. To the extent the jury’s award was based on
plaintiff’s uninsurability, it was unsupported by any evidence. (Id. at p. 534.) Second,
plaintiff testified she was taking medication to control the herpes. According to the
medical expert, the medication suppressed the herpes virus and plaintiff had not had an
outbreak of the disease while taking the medication. A one-month supply of the drug
cost $200 and plaintiff was 56 years old at the time of trial. Plaintiff testified her mother
was 95 years old and plaintiff’s counsel argued plaintiff had “a good 35 years left.” The
court held that plaintiff’s testimony was insufficient to support a determination of her life
expectancy given that the life expectancy table included in the CACI jury instructions
indicated a life expectancy of 27.4 years. (Ibid.) The court concluded the only
substantial evidence that supported damages for future medical expenses was the
evidence of the cost of the medication over plaintiff’s expected lifespan. That amount




                                              8
was no more than the $72,000 urged by defendant. The court modified the judgment and
reduced the award accordingly. (Id. at p. 535.)
          Likewise in Scognamillo v. Herrick (2003) 106 Cal.App.4th 1139, the plaintiff’s
physician testified that the plaintiff would require back surgery as the result of the
accident, first on one disc, and possibly on a second disc. The trial court awarded the
plaintiff damages, including the costs of two future surgeries and future lost wages. (Id.
at pp. 1145-1146.) The appellate court concluded there was no substantial evidence to
support the future damages awarded for a possible second back surgery because the
prospect of a second surgery was too speculative to justify damages. From the expert’s
testimony: “‘the usual procedure is to do the worst disc first and see, because of the risk
of the surgery, see how much improvement there is. And if everything goes well, then
perhaps, if everything goes well, proceed with the second disc,’” (id. at p. 1151) it
appeared possible that one surgery might sufficiently alleviate the plaintiff’s problems, or
that a second surgery might be deemed to not be worth the risk. Absent any other
evidence as support for the award of damages arising out of a second surgery, there was
insufficient evidence, based on a reasonable medical probability, to make such an award.
The judgment was reversed as to the medical expenses awarded for the second surgery.
(Ibid.)
Analysis
          The jury was instructed that Lonn-Nichols did not have to prove the exact amount
of damages that would provide reasonable compensation for the harm she experienced,
but they were not to guess or speculate in awarding damages. “To recover damages for
future medical expenses, … Lonn-Nichols must prove the reasonable costs of reasonably
necessary medical care that she is reasonably certain to need in the future.”
          Lonn-Nichols contends the court used an improper standard when reviewing the
evidence and granting the motion. She submits the court disregarded the following
evidence, which constituted substantial evidence to support the jury’s $49,500 future


                                              9
medical expenses award: her testimony that she anticipated future medical bills because
she continued to get a monthly torodol shot from Dr. Knapp and would continue
treatment from Drs. Ma and Levin and whomever else Dr. Knapp referred her to. She
had paid Dr. Knapp’s office $694.69 for past medical expenses related to her injuries. In
addition, Dr. Knapp had referred her for physical therapy and to Drs. Levin and Ma. She
had paid $800.61 for the physical therapy, $281.46 to Dr. Levin for treatment, and
$932.23 to Dr. Ma, who was then treating her.
       She contends the future damages award was also supported by testimony from
Drs. Casey and Levin. Dr. Casey testified that he did not feel she was probably going to
get better. Studies had shown that after injuries of “this sort,” 80 percent of patients
recovered by a year or two. The others continued to have symptoms forever. He had
recommended trigger point injections around her cervical spine to help her headaches.
Epidural steroid injections were also an option to try. Dr. Levin testified he did not
believe Lonn-Nichols’s disc protrusion was going to resolve on its own. Treatment
options included physical therapy, pain management, and possibly surgery.
       The trial court did not disregard relevant evidence or apply an improper standard.
While the evidence Lonn-Nichols cites is sufficient to support a finding that she will
require future medical care, there was no evidence to support the $49,500 amount the jury
awarded. Unlike in Niles, supra, 42 Cal.App.3d 230; Garcia, supra, 156 Cal.App.4th 92,
and Behr, supra, 193 Cal.App.4th 517, where there was expert opinion testimony
regarding the cost of specific future medical care, in this case there was no testimony
regarding the costs of any specific future care including the trigger point injections Dr.
Casey recommended or the torodol injections Lonn-Nichols testified she received from
Dr. Knapp.
       Lonn-Nichols also contends the award is supported by evidence of past expenses
from which the jury could reasonably infer potential long-term costs. We disagree.
Regarding past medical expenses, there was evidence of the total amount Lonn-Nichols


                                             10
had paid to Dr. Knapp, to Dr. Levin and to Dr. Ma. There was also evidence of the total
amount paid for 11 or 12 physical therapy sessions. Regarding future medical expenses,
Dr. Levin testified that future treatment options might include physical therapy, pain
management and possibly surgery, but offered no opinion as to the potential costs of
those treatments. Dr. Casey recommended Lonn-Nichols receive trigger point injections
and, if they no longer worked, epidural steroid injections. He did not know what the
injections cost. And, Lonn-Nichols testified she would need treatment and monthly shots
from Dr. Knapp, but she was not asked about their potential costs. While the evidence
showed Lonn-Nichols had paid Dr. Knapp $694 for treatment to date, the total amount
was not broken down to indicate what amount was paid for “shots.” As a result, there
was no specific evidence of past medical expenses from which the jury could extrapolate
potential future costs as was the case in Behr where there was evidence the medication
costs $200 per month.
       Because there was no evidence of the cost of the trigger point injections--past or
future--or of the future cost of any other recommended treatment, the jury could only
have speculated as to their cost to determine the amount awarded.
                                     DISPOSITION
       The judgment and the order granting Brugger’s motion for JNOV are affirmed.
Costs on appeal are awarded to Brugger.




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