Filed 5/22/20; Certified for publication 6/16/20 (order attached)




        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIRST APPELLATE DISTRICT

                                         DIVISION ONE


 GARY VERRAZONO,
         Plaintiff and Appellant,
                                                          A152318
 v.
 GEHL COMPANY, et al.,                                    (Sonoma County
                                                          Super. Ct. No. SCV256870)
         Defendants and Respondents.


        Plaintiff Gary Verrazono was seriously injured when a rough terrain
forklift he was operating tipped over. He proceeded to trial against Gehl
Company, the manufacturer. The jury returned a defense verdict, finding the
forklift was not defective and Gehl was not negligent. Verrazono claims the
trial court erred in refusing to instruct the jury on the “consumer
expectations” test for design defect and erred in giving a “dynamite
instruction” when the jury became deadlocked. He also maintains no
substantial evidence supports the jury’s no-defect and not-negligent findings.
We affirm.
                                        BACKGROUND
        Verrazono was seriously injured in 2012 at the Sonoma Raceway when
the rough terrain forklift he was operating tipped over.
        Known as a “telehandler,” a rough terrain forklift is a forklift that can
“go off of a paved surface” and has a “telescopic boom [that can] be raised and

                                                   1
extended to take loads to elevations.” The telehandler operated by Verrazono
weighed about 28,000 pounds. It could lift a load of up to 8,000 pounds and
raise it 42 feet above ground.
      The telehandler had a “[r]oll over [p]rotective [s]ystem,” consisting of “a
ste[e]l cage around the operator.” It was also equipped with a two-point
seatbelt, which Federal Occupational Safety and Health Administration
(OSHA) regulations require the operator to wear. Additionally, it had a
“frame level system” allowing the operator “to flatten out the forklift to match
up to the slope up to about 10 degrees.” The operator’s manual instructed
that the telehandler should not be operated on slopes exceeding 10 degrees.
It also warned the operator “should not travel with the boom elevated,” and
doing so could lead to instability and rollovers. While the telehandler had
been sold with a door, it had been removed at some point prior to the
incident.
      The telehandler had a number of warning stickers on it. One stated
“WARNING [¶] OVERTURN HAZARD [¶] Always fasten seatbelt. [¶] Inspect
worksite to be sure ground is stable. [¶] Before raising boom: [¶]. . . Consult
load charts. . . .[¶]. . . [¶] . . . Level frame. [¶] . . . [¶] If machine overturns, DO
NOT jump. Instead, hold on tight and lean away from fall.” Another stated,
“WARNING [¶] Machine rollover hazard. [¶] Always level machine before
elevating boom. Never level frame to position an elevated load. [¶] Failure to
heed could result in death or serious injury.” (Capitalization omitted.)
      OSHA regulations require that operators be trained and certified by an
approved instructor before operating a telehandler. Only “authorized
operators trained to adhere strictly to the operating instructions . . . [are]
permitted to operate rough terrain forklift[s].”




                                           2
      Verrazono was trained in operating both regular forklifts and
telehandlers. He was first trained in operating a telehandler in 2002 and
was trained and re-certified every other year from 2002 through 2010. The
trainings consisted of classroom instruction, videos, actual operation of the
rough terrain forklift in the field with an instructor, and a written test. At
the time of the accident, Verrazono had about 1,000 hours of experience
operating telehandlers.
      On the day of the accident, a chef asked Verrazono to move some
industrial ovens in the VIP area of the racetrack, which was surrounded by a
fence. Verrazono wanted to use a standard industrial forklift but could not
find one that was unlocked. Although not his first choice, he found that the
Gehl telehandler was available and he knew it could lift the ovens.
      Verrazono testified he performed a general inspection of the
telehandler, including checking the hydraulic fluids and tires. Although it
was his practice to wear the seatbelt, he was not wearing it at the time of the
accident. He also knew the telehandler should not be operated on a slope or
grade that was more than 10 degrees. The grade where the accident occurred
ranged from 25 to 33 degrees. Verrazono also knew the telehandler should
not be moved with the boom in an elevated position, but the evidence showed
that at the time of the accident the boom was elevated about 27 degrees
above horizontal.
      A coworker helped Verrazono find a way through the fence to reach the
ovens. When the coworker noticed the telehandler was getting close to the
fence, he signaled Verrazono to stop. The two strategized for five to ten
minutes on how best to get the telehandler through the fence.
      Verrazono started to back up, and after he had backed two-to-three
feet, his coworker heard a “screeching sound . . . the sound of metal giving


                                        3
out.” The telehandler fell on its left side. As the telehandler was coming
down, the coworker saw Verrazono “falling out of the forklift.”
      Verrazono’s right shoulder and right leg were pinned under the forklift
for about 48 minutes, resulting in the amputation of his right arm and leg.
      Verrazono subsequently filed the instant case, alleging as to Gehl,
claims for negligence and strict product liability based on design defect. As to
the latter, Verrazono did not claim that the telehandler was defective because
it could roll over. Rather, he claimed it was defective because he had not
been restrained within the cab. Specifically, he maintained the forklift
should have been equipped with a nonremovable door, a seatbelt with more
than two-point attachment, and interlocks which would “prevent the
operation of the forklift without a door or lap belt.”
      In support of Verrazono’s theory that the telehandler was defectively
designed because it lacked these additional features, his engineering expert
Steven Meyer opined that wearing the seatbelt would not have, alone,
prevented Verrazono’s injuries. However, had there been a door, Verrazono
“would have not gotten out of it during the tip-over.” Meyer also testified the
telehandler should have had an interlock device, which would have prevented
the operator from either starting the telehandler, putting it in drive, or
extending the boom, unless the operator had the seatbelt on.
      Verrazono’s biomechanical expert, Wilson Carlyle Hayes, similarly
testified that a door “would have prevented getting [Verrazono’s] arms and
legs out of the vehicle, would have prevented amputation.” Had there been a
door, “the most severe injury he would sustain . . . would be a mild to
moderate injury of the . . . head.” He further testified that wearing a seatbelt
would only “trade off a high shoulder amputation and the entire arm for a
lower amputation to the right arm.”


                                        4
      Gehl’s experts had different opinions. Its engineering expert John
Johnson testified “the best thing for the operators is wear your seatbelt, stay
with the lift.” A door was not as effective because “it does not hold you in the
seat. And it doesn’t do anything for you in a forward direction or [a]
backward direction. Or in the rollover, it doesn’t do anything for you when
the truck is on its top. . . . The seatbelt [is] really what holds you in place.
The door is okay but what holds you in place from being injured is the
seatbelt.” Verrazono, himself, acknowledged that the instructors in his
telehandler classes stressed the importance of always wearing the seatbelt
because it was “one of the key safety devices to keep you in the cab.” The
two-point seatbelt complied with both California state and industrial
standards. And, had Verrazono been wearing it, he would not have fallen
from the cab. Moreover, making the door nonremovable would have
prevented certain kinds of repair work to the telehandler, and would have
“void[ed] the structure.” An interlock device preventing the machine from
being started if the seatbelt was not buckled would not prevent unbuckling
while the engine was on, and if it automatically shut down on unbuckling,
there would be “extreme difficulty steering and braking.”
      In addition to being instructed on the importance of wearing the
seatbelt, Verrazono was also trained that, in the event of a tip-over, the
operator should never jump out because, as he testified, “you can get killed.”
Indeed, he correctly answered the training test question on what to do in the
event of a rollover, namely, “remain seated with a firm grip on the steering
wheel.” The operator’s manual also warned users to hold on and lean away
from the direction of the rollover.
      Verrazono testified he could not recall whether he fell or jumped out of
the cab during the accident. His biomechanical engineer opined Verrazono


                                         5
did not jump out of the cab, but rolled out of his seat when the telehandler
tipped.
      Gehl’s biomechanical engineer conducted a “fall analysis” and testified
to the contrary. “I don’t believe there’s any way that Mr. Verrazono could
have passively fallen out of the machine based on where he wound up. To get
as far as he got would require some effort on his part.”
      Following the defense verdict, Verrazono moved for a new trial on three
grounds—the court erred in refusing to instruct on the “consumer
expectations” test, the court erred in giving the “dynamite” instruction when
told the jury was unable to reach a verdict, and the verdict was “against the
weight of the evidence.” The court denied the motion.
                                 DISCUSSION
Instruction on Consumer Expectations Test
      Verrazono claims that while a rollover was “foreseeable” to an operator,
“what was not expected was that, upon rolling over, the operator would be
ejected from the operator cage and subjected to the severe injuries that [he]
suffered.” He thus maintains the trial court should have instructed the jury
on the “ordinary consumer expectations” test, in addition to the “risk-benefit”
test, to resolve his design defect claim.
      In Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 560–567 (Soule),
our Supreme Court engaged in an extensive review of the development of the
design defect theory of products liability and elaborated on its watershed
decision in Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413 (Barker),
which recognized “two alternative tests” to establish a design defect—the
“ordinary consumer expectations” test and the “risk-benefit” test. “In Barker,
we offered two alternative ways to prove a design defect, each appropriate to
its own circumstances.” (Soule, at p. 566.)


                                            6
      The Supreme Court devoted much of its discussion in Soule to
explaining when it is “appropriate” to instruct on the ordinary consumer
expectations test and when it is not.
      “[I]n order to establish a design defect under Barker’s ordinary
consumer expectations test,” it is “enough [for the plaintiff] to show ‘the
objective conditions of the product’ so that the jurors can employ ‘[their] own
sense of whether the product meets ordinary expectations as to its safety
under the circumstances presented by the evidence.” (Soule, supra, 8 Cal.4th
at p. 563.) The Barker court also pointed out that under the ordinary
consumer expectations test, the defectiveness of a product must be evaluated
in light of its “ ‘reasonably foreseeable use,’ ” not the product’s “ ‘intended
use.’ ” (Barker, supra, 20 Cal.3d at 435.) “[T]he adequacy of a product . . .
‘should not be carried out in an industrial vacuum, but with recognition of the
realities of their everyday use.’ ” (Id. at p. 426, fn. 9.)
      Soule pointed to the high court’s earlier opinion in Campbell v. General
Motors Corp. (1982) 32 Cal.3d 112, as an appropriate use of the ordinary
consumer expectations test. In that case, the plaintiff was injured when she
was thrown from her seat as the bus she was riding in made a sharp turn,
and her complaint was that “there was no ‘grab bar’ within easy reach of her
seat.” (Soule, supra, 8 Cal.4th at p. 563.) The jury, Soule explained, was
fully able to assess the situation by looking at photographs of the interior of
the bus showing where safety bars and handles were installed. “ ‘Indeed,’ ” it
was “ ‘difficult to conceive what testimony an “expert” could [have]
provide[d]’ ” in Campbell given the circumstances and nature of the claimed
defect. (Ibid.)
      The Soule court went on state that Campbell also illustrates that “a
product violates ordinary consumer expectations only when the


                                          7
circumstances arouse such reasonable expectations based on common
experience of the product’s users.” (Soule, supra, 8 Cal.4th at p. 564.) “[T]he
consumer expectations test,” said the court, “is reserved for cases in which
the everyday experience of the product’s users permits a conclusion that the
product’s design violated minimum safety assumptions, and is thus defective
regardless of expert opinion about the merits of the design. It follows that
where the minimum safety of a product is within the common knowledge of
lay jurors, expert witnesses may not be used to demonstrate what an
ordinary consumer would or should expect. Use of expert testimony for that
purpose would invade the jury’s function (see Evid.Code, § 801, subd. (a)),
and would invite circumvention of the rule that the risks and benefits of a
challenged design must be carefully balanced whenever the issue of design
defect goes beyond the common experience of the product’s users.” (Soule, at
p. 567.)
      In short, “[i]n particular circumstances, a product’s design may perform
so unsafely that the defect is apparent to the common reason, experience, and
understanding of its ordinary consumers. In such cases, a lay jury is
competent to make that determination.” (Soule, supra, 8 Cal.4th at p. 569.)
This can be so even where a product is “complex.” “ ‘[A] complex product
“may perform so unsafely that the defect is apparent to the common reason,
experience, and understanding of its ordinary consumers.” ’ ” (Mansur v.
Ford Motor Co. (2011) 197 Cal.App.4th 1365, 1374 (Mansur), quoting Saller
v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1232 (Saller).)
      However, where the “plaintiff’s theory of defect seeks to examine the
behavior of ‘obscure components under complex circumstances’ outside the
ordinary experience of the consumer, the consumer expectation test is
inapplicable; and defect may only be proved by resort to the risk-benefit


                                       8
analysis. ([Soule, supra, 8 Cal.4th] at p. 570 [where automobile collision
resulted in left front wheel breaking free, collapsing rearward and smashing
floorboard into driver’s feet, it was error to instruct jury with consumer
expectation test; proper test for defect is risk-benefit because behavior of
obscure component parts during complex circumstances of accident not
within ordinary experience of consumer]; Morson v. Superior Court (2001)
90 Cal.App.4th 775, 793–795 . . . [consumer expectation test inapplicable to
assess defect in latex glove where chemical in the rubber caused allergic
reactions in those sensitive to latex; the allergenicity of the rubber is ‘ “a
matter beyond the common experience and understanding” ’ of the product’s
consumers].)” (McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th
1111, 1122.)
      The risk-benefit test, by contrast, comes into play where “a complex
product, even when it is being used as intended, may often cause injury in a
way that does not engage its ordinary consumers’ reasonable minimum
assumptions about safe performance. For example, the ordinary consumer of
an automobile simply has ‘no idea’ how it should perform in all foreseeable
situations, or how safe it should be made against all foreseeable hazards.”
(Soule, supra, 8 Cal.4th at pp. 566–567, citing Barker, supra, 20 Cal.3d. at
p. 430.) In such cases, whether a design defect exists “involves technical
issues of feasibility, cost, practicality, risk, and benefit [citation] which are
‘impossible’ to avoid” and the “jury must consider the manufacturer’s
evidence of competing design considerations.” (Soule, at p. 567, italics
omitted.) “[T]he issue of design defect cannot fairly be resolved by
standardless reference to the ‘expectations’ of an ‘ordinary consumer.’ ”
(Ibid.)




                                         9
      The prima facie showing a plaintiff must make to proceed under either
of these design defect theories differs.
      To proceed under the ordinary consumer expectation test, “ ‘ “it is
generally sufficient if the plaintiff provides evidence concerning (1) his or her
use of the product; (2) the circumstances surrounding the injury; and (3) the
objective features of the product which are relevant to an evaluation of its
safety.” [Citation.] The test is that of a hypothetical reasonable consumer,
not the expectation of the particular plaintiff in the case.’ ” (Mansur, supra,
197 Cal.App.4th at p. 1375, quoting Saller, supra, 187 Cal.App.4th at
p. 1232.)
      Generally, “ ‘[e]xpert witnesses may not be used to demonstrate what
an ordinary consumer would or should expect,’ because the idea behind the
consumer expectations test is that the lay jurors have common knowledge
about the product’s basic safety.” (Mansur, supra, 197 Cal.app.4th at
p. 1375.) However, “where the product is in specialized use with a limited
group of consumers[,] . . . ‘expert testimony on the limited subject of what the
product’s actual consumers do expect may be proper’ ” because “ ‘the
expectations of the product’s limited group of ordinary consumers are beyond
the lay experience common to all jurors.’ ” (McCabe, supra, 100 Cal.App.4th
at p. 1120, fn. 3.)
      To proceed under the risk-benefit test, the plaintiff need make only “a
prima facie showing that the injury was proximately caused by the product’s
design.” (Barker, supra, 20 Cal.3d at p. 431.) On such showing, the burden
shifts “to the defendant to prove, in light of the relevant factors, that the
product is not defective,” given that “most of the evidentiary matters which
may be relevant to the determination of the adequacy of a product’s design
under the ‘risk-benefit’ standard––e. g., the feasibility and cost of alternative


                                           10
designs––are similar to issues typically presented in a negligent design case
and involve technical matters peculiarly within the knowledge of the
manufacturer.” (Ibid.)
      In this case, the trial court properly declined to instruct on the ordinary
consumers expectations test.
      To begin with, Verrazono presented no evidence as to the safety
expectations of a “hypothetical reasonable” telehandler user under the
circumstances that occurred. While he asserts in his opening brief that it
“was not expected . . . that, upon rolling over, the operator would be ejected
from the operator cage and subjected to the severe injuries that [he] suffered”
and claims he presented “plentiful evidence,” lay and expert, that the
telehandler failed to satisfy user’s minimum safety expectations, the evidence
to which he cites consists entirely of his engineering expert’s opinions as to
why the forklift was supposedly defectively designed and the ease and cost of
eliminating the claimed defects.
      Rather, Verrazono’s engineering expert’s testimony bore on a risk-
benefit analysis, i.e., “of a particular design versus the benefits.” Specifically,
he opined the telehandler was defectively designed because it did not have a
nonremovable door, which he testified would have cost only $500. He was
also of the opinion the telehandler should have had an interlock device, which
would have prevented the forklift from being operated without the door
closed or the seatbelt on, and a “pretensioner,” which would have tightened
the seatbelt automatically.
      Verrazono’s testimony regarding telehandler safety, in turn, consisted
of what he was taught in the telehandler operating classes and the
information in the telehandler manual. This testimony established that he
was well-aware of the risk of a rollover, the necessity of leveling the


                                        11
telehandler and operating it only on slopes of 10 degrees or less, and the
necessity of wearing the two-point belt to prevent ejection and injury or
death. He also testified the majority of telehandlers he had operated had no
door, without any comment on whether this triggered any concern about
operator safety.
      It is also apparent from the record that this was not a case in which the
jury could properly determine, based solely on the objective attributes of the
telehandler, whether it was defectively designed in the manner Verrazono
claimed. Had the forklift lacked a roll bar or cage and restraint device, it is
quite plausible the ordinary consumer expectation test case would have
applied, as we would have no difficulty concluding that any reasonable
telehandler operator has a minimal safety expectation that the forklift will
have features preventing the user from being squashed in a rollover, and the
jury could have decided the case based solely on the observable attributes, or
lack thereof, of the forklift. Had that been Verrazono’s case, it would have
been analogous to Campbell, in which photos of the interior of the bus showed
the placement of grab bars and straps and that none were near the seat from
which the plaintiff was thrown during a sharp turn.
      However, Verrazono made a different claim—that, in addition to a roll
bar and cage, and a two-point lap belt, the telehandler also should have been
equipped with a nonremovable door, a belt with more than two-point
attachment, and interlocks preventing operation of the forklift without a door
or lap belt. As the competing expert testimony at trial showed, whether or
not the lack of these features constituted a design defect was not an
evaluation the jurors were equipped to make in the absence of expert
testimony. Verrazono’s expert testified, for example, that the telehandler
should have had a nonremovable door and interlock device, while Gehl’s head


                                       12
of engineering and expert testified a nonremovable door would present
different problems and an interlock device would present other operational
hazards. In short, this was not a case where “evidence about the objective
features of the product,” alone, was sufficient for an evaluation of whether
the telehandler was defectively designed in the manner Verrazono claimed.
(Mansur, supra, 197 Cal.App.4th at p. 1378.) Rather, this was a case where
the “ultimate issue of design defect” called “for a careful assessment of
feasibility, practicality, risk, and benefit.” (Soule, supra, 8 Cal.4th at p. 562;
see Morson v. Superior Court, supra, 90 Cal.App.4th at p. 793 [ordinary
consumer expectations test not applicable where “expert testimony will be
essential to assist the finder of fact in understanding the pros and cons of
Plaintiffs’ arguments”].)1
      Verrazono places considerable reliance on Demara v. The Raymond
Corp. (2017) 13 Cal.App.5th 545 (Demara), which involved, like the instant
case, an allegedly defective forklift. Unlike the instant case, it was an appeal


      1  We also have considerable doubt that reasonable telehandler
operators would minimally expect they would be protected from injury if they
operated the forklift on an incline exceeding 10 degrees, with the lift
extended, and without wearing the two-point lap belt. (See Chavez v. Glock,
Inc. (2012) 207 Cal.App.4th 1283, 1311–1312 [while consumers might form
minimum safety assumptions concerning handguns, “no reasonable
consumer—whether relatively inexperienced with firearms or a seasoned law
enforcement officer—would expect an unlockable and loaded weapon, left in
ready-to-fire condition in a location accessible to a child or other
unauthorized users, not to accidentally discharge”; accordingly, facts of the
case did not permit an inference the gun’s performance “ ‘ “did not meet the
minimum safety expectations of its ordinary users” ’ ” and plaintiffs could not
proceed under ordinary consumer expectations test]; cf. Soule, supra,
8 Cal.4th at p. 569, fn. 9 [under ordinary consumers expectation test, trier of
fact decides whether product failed to perform as an ordinary user would
expect when product is used in an intended or a reasonably foreseeable
manner].)

                                        13
from a defense summary judgment, not from a jury verdict. (Id. at p. 549.)
In Demara, the plaintiff, a warehouse worker, was walking through a
warehouse when the “drive wheel” of the forklift at issue ran over his foot.
(Id. at p. 551.) The forklift had “an open area around the drive wheel with no
guards, gates, skirts or bumpers.” (Id. at p. 550.) And while it had a light
that flashed to warn nearby workers, it was located above the driver’s
compartment, so at certain close distances, it “was not visible to, and was
thus ineffective as a warning light for, pedestrians.” (Id. at p. 556.) The trial
court granted summary judgment, ruling among other things that “the
consumer expectation test is inapplicable, ‘because the minimum safety of the
[forklift’s] design is not within the common knowledge of ordinary
consumers.’ ” (Id. at pp. 551–552.)
      The Court of Appeal reversed, pointing out “[t]he two theories [of
design defect] are not mutually exclusive, and depending on the facts and
circumstances of the case, both may be presented to the trier of fact in the
same case.” (Demara, supra, at p. 554.) The court concluded there was a
triable issue of fact as to causation, which a plaintiff must prove under either
test. (Id. at pp. 555–556.) It additionally concluded the trial court erred in
ruling that because the forklift was a “complex” piece of machinery, only the
risk-benefit test could apply to determine whether it was defectively
designed. (Id. at pp. 557–558.) As the Court of Appeal pointed out, that a
product is “complex” does not foreclose use of the ordinary consumer
expectations test. (Id. at p. 558.) Rather, the applicability of the test
depends on whether the particular facts of the case are such that the jury can
“ ‘employ “[its] own sense of whether the product meets ordinary expectations
as to its safety under the circumstances presented.” ’ ” (Id. at p. 559.)
Further, the test focuses not on the minimum safety expectations of


                                        14
“consumers in general,” but on those of the product’s users, which in Demara
included nearby warehouse workers. (Ibid.) Given the nature of the claimed
defects, the court concluded a jury could assess whether the forklift was
defectively designed. (Id. at pp. 561–562.) Whether the forklift should have
had a safety guard and/or fully visible warning light would “not involve
complex or sophisticated technology or an understanding of concepts outside
the scope of everyday experiences of the consumers of the product.” (Id. at
p. 562.)
      As we have discussed, both the circumstances of the accident that
occurred in the instant case and the claimed design defects in the
telehandler, are of a different character than the accident and alleged defects
in Demara, and the trial court correctly concluded the ordinary consumer
expectations test was inappropriate here.2
CACI 5013: The Deadlock Instruction
      On the third day of jury deliberations, the jury asked for further
instruction on negligence. The court provided instruction on the reasonable
person standard. On the fourth day of deliberations, the foreperson indicated
the jury was still divided and “struggling.”
      The court then instructed the jury with CACI 5013, as follows: “You
should reach a verdict if you reasonably can, and that refers to questions 2

      2  Citing Demara, Verrazono asserts the trial court “misunderstood” the
ordinary consumer expectations test, pointing to the court’s comment when
denying the instruction, that “the consumer expectation test only applies to
products in the experience of the ordinary consumer. And this is not an
ordinary consumer that is using the product.” Whether the court
“misunderstood” the test or was simply inartful in its phraseology, we review
the trial court’s denial of a jury instruction on the ordinary consumer
expectations test de novo. (Mansur, supra, 197 Cal.App.4th at p. 1373) And,
having done so, we conclude the court did not err in declining to instruct on
this test.

                                       15
and 3 and the other questions if it becomes appropriate to answer them.
[¶] You have spent time trying to reach a verdict, I realize that, but this case
is important to the parties so they can move on with their lives with their
matter resolved. [¶] If you’re unable to reach a verdict the case will have to be
tried before another jury, selected in the same manner and from the same
community which you were chosen and at additional cost to everyone.
[¶] Please carefully consider the opinions of all jurors, including those with
whom you disagree. Keep an open mind and feel free to change your opinion
if you become convinced that it is wrong. [¶] You should not, however,
surrender your beliefs concerning the truth and the weight of the evidence.
Each of you must decide the case for yourself and not merely go along with
the conclusions of your fellow jurors. [¶] I don’t know if that helps or not.
Please just give it another shot. See if you can reach a verdict.”
      Verrazono claims this instruction “had the effect of coercing the jury to
reach its defense verdict,” as evidenced by the fact the jury reached a verdict
fifteen minutes after being read the instruction.
      “A trial court may properly advise a jury of the importance of arriving
at a verdict and of the duty of individual jurors to hear and consider each
other’s arguments with open minds, rather than to prevent agreement by
obstinate adherence to first impressions. [Citations.] But, as the exclusive
right to agree or not to agree rests with the jury, the judge may not tell them
that they must agree nor may he harry their deliberations by coercive threats
or disparaging remarks. ‘The court is unauthorized to tell the jury, at any
stage of the trial, that they must agree. The statement of a trial judge to a
disagreeing jury that they must arrive at a verdict, or language from which
such peremptory order is logically inferred, is plain coercion and an invasion
by the court of the province of the jury. The trial court should not direct such


                                        16
remarks or admonitions to the jury as will tend unduly to hasten them in
arriving at a verdict.’ ” (Cook v. Los Angeles Ry. Corp. (1939) 13 Cal.2d 591,
594.)
        The California Rules of Court authorize the trial court to give such an
instruction to a deadlocked jury. “After a jury reports that it has reached an
impasse in its deliberations, the trial judge may, in the presence of counsel,
advise the jury of its duty to decide the case based on the evidence while
keeping an open mind and talking about the evidence with each other. The
judge should ask the jury if it has specific concerns which, if resolved, might
assist the jury in reaching a verdict. [¶] . . . [¶] If the trial judge determines
that further action might assist the jury in reaching a verdict, the judge may:
[¶] (1) Give additional instructions; [¶] (2) Clarify previous instructions;
[¶] (3) Permit attorneys to make additional closing arguments; or [¶] (4)
Employ any combination of these measures.” (Cal. Rules of Court, rule
2.1036(a), (b)(1)–(4).)
        “[A]ny coercive effect should be determined by reading the instruction
as a whole in light of the surrounding circumstances. Only when the
instruction has coerced the jurors into surrendering their conscientious
convictions in order to reach agreement should the verdict be overturned.”
(Inouye v. Pacific Southwest Airlines (1981) 126 Cal.App.3d 648, 651
(Inouye).)
        The court in Inouye considered the circumstances surrounding the
instruction and concluded they were not coercive. As in this case, “[t]he court
did not keep the jury in the jury room for an unreasonably long time after
reading the instruction. The jury reached agreement in 15 minutes. The
court then polled the jury. Nine jurors said the verdict was theirs without
hesitation. [¶] Moreover, examining the instruction line by line [citation] it is


                                        17
clear the charge itself was not coercive. The court told the jury they should
reach a verdict if they reasonably could; they should not surrender their
conscious convictions of the truth and the weight of the evidence; each juror
must decide the case for himself and not merely acquiesce in the conclusion of
his fellows; the verdict should represent the opinion of each individual juror;
and in reaching a verdict each juror should not violate his individual
judgment and conscience.” (Inouye, supra, 126 Cal.App.3d at pp. 651–652.)
      In fact, CACI No. 5013 was “derived in large part from Inouye.”
(Wegner, et al., Cal. Practice Guide: Civil Trials and Evidence (The Rutter
Group 2019) § 15:137a.) The use note states, “Similar language has been
found to be noncoercive in a civil case as long as it is accompanied by
language such as that included in the last paragraph of the instruction,”
regarding jurors not surrendering their beliefs. (CACI No. 5013.)
      Given the similarity of the circumstances here to those in Inouye, we
likewise conclude the instruction and surrounding circumstances here were
not coercive.
Substantial Evidence
      Verrazono additionally claims no substantial evidence supports the
jury’s verdict that Gehl was not negligent in designing the telehandler or that
the risks of the design did not outweigh the benefits.
      “We review the jury’s findings of fact for substantial evidence.
[Citation.] ‘Under the substantial evidence standard of review, we review the
entire record to determine whether there is substantial evidence supporting
the jury’s factual determinations [citation], viewing the evidence and
resolving all evidentiary conflicts in favor of the prevailing party and
indulging all reasonable inferences to uphold the judgment [citation]. The
issue is not whether there is evidence in the record to support a different


                                       18
finding, but whether there is some evidence that, if believed, would support
the findings of the trier of fact.’ ” (Romine v. Johnson Controls, Inc. (2014)
224 Cal.App.4th 990, 1000.)
      Gehl maintains Verrazono waived any substantial evidence challenge
because he failed to set forth in his opening brief all the material evidence
pertaining to his negligence and design defect claims, including that
damaging to his position. “An appellant challenging the sufficiency of the
evidence to support the judgment must cite the evidence in the record
supporting the judgment and explain why such evidence is insufficient as a
matter of law. [Citations.] An appellant who fails to cite and discuss the
evidence supporting the judgment cannot demonstrate that such evidence is
insufficient. The fact that there was substantial evidence in the record to
support a contrary finding does not compel the conclusion that there was no
substantial evidence to support the judgment.” (Rayii v. Gatica (2013)
218 Cal.App.4th 1402, 1408.)
      In his reply brief, Verrazono did not dispute that, in his opening brief, he
presented a one-sided discussion of the evidence. Indeed, in his reply brief,
he failed to make any response to Gehl’s forfeiture argument.
      As Gehl notes, in his opening brief, Verrazono failed to mention the
evidence that Gehl manufactured and sold the telehandler at issue with a
door, but it was removed at some point after the sale. Verrazono failed to
mention testimony that Gehl designed and manufactured the telehandler in
conformance with industry standards developed by the American National
Standards Institute. Verrazono failed to mention expert testimony that
making the door nonremovable would prevent repairs to the telehandler. He
likewise failed to cite the evidence that the two-point seatbelt was compliant
with California and industry standards and would have prevented his


                                        19
ejection from the cab had he worn it. Verrazono additionally failed to cite the
evidence that an interlock device preventing the telehandler from starting if
the operator was not buckled up would not have prevented the injury in this
case, because the seatbelt could have been removed after the engine was on.
Further, an interlock device shutting down the telehandler when a seatbelt
was removed, would cause “extremely difficult steering and braking.”
      In sum, Verrazono’s failure to set forth all material evidence forfeited
his substantial evidence claims. And, in any event, as Gehl goes on to point
out, the evidence Verrazono failed to identify constitutes substantial evidence
supporting the verdict.
                               DISPOSITION
      The judgment is affirmed. Costs on appeal to respondent.




                                       20
                                      _________________________
                                      Banke, J.


We concur:


_________________________
Humes, P.J.


_________________________
Sanchez, J.




A152318, Verrazono v. Gehl Company


                                 21
Filed 6/16/20
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                      DIVISION ONE


 GARY VERRAZONO,
          Plaintiff and Appellant,
                                                    A152318
 v.
 GEHL COMPANY, et al.,                              (Sonoma County
                                                    Super. Ct. No. SCV256870)
          Defendants and Respondents.

BY THE COURT:
        The opinion in the above-entitled matter filed on May 22, 2020, was not certified
for publication in the Official Reports. For good cause, the request for publication is
granted.
        Pursuant to California Rules of Court, rules 8.1120 and 8.1105(c)(2), (3) and (4),
the opinion in the above-entitled matter is ordered certified for publication in the Official
Reports.




Date: __________________                          ___________________________ P.J.




                                              1
Trial Court: Sonoma County Superior Court

Trial Judge: Hon. Rene Auguste Chouteau

Counsel:

Esner, Chang & Boyer, Andrew N. Chang and Stuart B. Boyer; Greene, Broillet &
Wheeler, LLP, Geoffrey S. Wells, Tobin M. Lanzetta and Molly M. McKibben for
Plaintiff and Appellant.

Tyson & Mendes, LLP, Susan Lynn Oliver and Raymond Kenneth Wilson; Crivello
Carlson, S.C., Richard T. Orton and Jeffrey T. Nichols; Dryden Margoles & Schimaneck,
Susan E. Foe for Defendants and Respondents.




                                          2
