Filed 1/7/14 Welch v. Koch CA6

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


JEANNE M. WELCH,                                                     H037228
                                                                    (Santa Clara County
         Plaintiff and Appellant,                                    Super. Ct. No. CV166399)

         v.

CHARLES STEPHEN KOCH,

         Defendant and Respondent.



         Plaintiff Jeanne M. Welch brought a personal injury action against defendant
Charles Stephen Koch. Following a jury trial, plaintiff was awarded damages in the
amount of $76,224.99. On appeal, plaintiff contends: (1) the trial court abused its
discretion in excluding plaintiff’s expert’s opinion testimony regarding future knee
surgery, and (2) the trial court erred in failing to declare a mistrial when the defense
expert testified regarding future medical treatment. We find no error requiring reversal
and affirm the judgment.


                                              I. Statement of the Case
         Plaintiff brought a negligence action against defendant. Defendant conceded that
he was responsible for striking plaintiff with his vehicle. The sole issue at trial was the
nature and extent of damages. Following trial, the jury rendered a verdict in favor of
plaintiff in the amount of $104,903.09. The jury awarded plaintiff: $13,500 for lost
earnings, $46,403.09 for medical expenses, $40,000 for past noneconomic loss, including
physical and mental suffering, and $5,000 for future noneconomic loss, including
physical pain and suffering. Plaintiff brought a motion for new trial in which plaintiff
argued: damages were inadequate, and the trial court erred in excluding expert opinion
testimony regarding future knee surgery. The trial court denied the motion. Following a
motion by defendant, the trial court reduced the damages award by $28,678.10 to reflect
the amount of medical expenses that plaintiff actually paid. Plaintiff filed a timely notice
of appeal.


                                    II. Statement of Facts
       In December 2009, plaintiff, who was then 61 years old, worked as a mortgage
broker and a real estate broker. She had previously worked as a ski instructor from 1994
until 1998, and skiing had continued to be an important part of her life. Prior to the
accident, she walked five to seven miles almost every day, played golf once or twice a
week, and enjoyed bike riding.
       At approximately 6:30 p.m. on December 4, 2009, defendant made a left turn from
East Main Street onto Jackson Street in Los Gatos. Defendant’s vehicle hit plaintiff’s leg
as she was walking in the crosswalk. Plaintiff was thrown onto the hood of defendant’s
vehicle and then to the ground.
       Due to her injuries, plaintiff was transported to Good Samaritan Hospital. X-rays
revealed that she had sustained comminuted fractures to the tibia and fibula of her left
leg. At plaintiff’s request, she was transferred to O’Connor Hospital where she was
treated by Dr. Stephen Tasker Imrie, an orthopedic surgeon. Plaintiff had known
Dr. Imrie for about 25 years. Following discussion of treatment options with plaintiff,
Dr. Imrie decided to cast her leg rather than perform surgery. Three days after the
accident, plaintiff was discharged from the hospital. About a month later, Dr. Imrie
                                             2
removed the cast, and shortly thereafter plaintiff was fitted with a brace. At that time, she
was experiencing moderate pain. Plaintiff then received physical therapy until the end of
March 2010.
          In June 2010, Dr. Imrie noted that plaintiff was complaining of more severe pain.
X-rays showed that her leg was continuing to heal. Dr. Imrie’s notes from a December
2010 office visit state: “Overall she’s about 50 percent better than she was at her worst,
but has not improved in the past month. She has moderate pain when she bears weight,
when she kneels or squats, if she twists her knee, or when the weather changes. She’s
able to walk two or three miles without external support. She doesn’t feel that she would
be able to ski comfortably.” Plaintiff was also “frustrated by her limited activity,
particularly her ability to ski.”
          At the December 2010 office visit, Dr. Imrie found no problems with the strength
of the knee muscles and no significant problems with her ligaments. Dr. Imrie opined
that plaintiff had “reached her maximum benefit in terms of healing,” and he did not have
plans for surgery or any other care. Plaintiff did not return to see Dr. Imrie for any office
visits.
          At the time of trial in May 2011, plaintiff was walking three miles a day at least
three times a week. Though she experienced pain as a result of these walks, she
continued to walk because she believed that it was beneficial for her health. In January
2011, she had gone skiing, but could not make turns on her left leg until wedges were put
in her boots. She was unable to ride a bike or play golf.
          Dr. Paul Mills, an orthopedic surgeon, testified as an expert in orthopedics for the
defense. Dr. Mills examined plaintiff in November 2010. Plaintiff demonstrated a
normal gait. She reported that she could walk a couple of miles before developing a
sharp pain on the inner side of her left knee and that she had some problems when she
rotated her left ankle. Dr. Mills found that her sensation was intact and equal on both


                                                3
sides and there was no neurological abnormality. The strength in plaintiff’s quadriceps
and other muscles around the knee and ankle were normal and equal on both extremities.
       Dr. Mills concluded that there were no significant abnormalities in the range of
motion for plaintiff’s hips, knees, and ankles. There was no swelling of either knee joint
and her knee ligaments functioned normally. His examination revealed that the valgus
for both knees was approximately 10 degrees, which was normal. In reviewing the April
2011 X-ray, Dr. Mills noted that plaintiff’s left knee measured 12 degrees while her right
knee measured 10 degrees. According to Dr. Mills, the two degree difference was not
significant. Based on the April 2011 X-ray, Dr. Mills testified that the joint space in her
left knee was essentially the same size and there was “no collapse or narrowing down of
one side of the knee compared to the other,” thus indicating that there “ha[dn’t] been any
asymmetric narrowing or wearing away of the cartilage that one might attribute to a
specific event like a fracture.”


                                       III.   Discussion
                                   A. Admissibility of Evidence
       Plaintiff contends that the trial court abused its discretion in granting defendant’s
motion in limine to exclude expert opinion testimony regarding future knee surgery.
                                        1. Background
                                    a. Deposition Testimony
       In March 2011, defendant deposed Dr. Imrie. Dr. Imrie testified that he and
plaintiff had been friends through their children since the early 1980’s. He testified that
he would order additional X-rays if plaintiff “wants to have surgery. At some point she’s
likely to be a candidate, she may be a candidate for total knee arthroplasty.” The
following exchange then occurred. “Q. I see. Good. At this point in time, it’s not
medically probable she’ll need a knee replacement? [¶] A. I can say at this point in time
she’s not -- doesn’t believe she’s a candidate for total knee replacement. And I don’t
                                              4
believe currently she is. That’s not to say in the future she may not be. So I want to stay
away from that term, ‘medically probable,’ right now. [¶] Q. Every doctor wants to stay
away from that term and every lawyer wants that term. [¶] In any event, there’s no plan
for any future surgery for her at this time? [¶] A. I have no plans at present to do that.”
Dr. Imrie was questioned again about future surgery: “Q. So there’s no arthroscopic
surgery that you’re contemplating at this time with respect to her? [¶] A. I’m not
planning any surgery on her at this point. That would be an option, if at some time she
was having symptoms I thought I could deal with arthroscopically.”
                                      b. Motions In Limine
       Defendant brought various motions in limine, including a motion to exclude any
references to medical “possibilities.” Defendant attached portions of the testimony of
Drs. Imrie and Ronald Joseph to his motion.1 Plaintiff filed opposition to this motion and
asserted that she would only introduce evidence as to the probability of future medical
care. Plaintiff also disputed defendant’s interpretation of Dr. Imrie’s deposition
testimony.
       Following argument by counsel regarding their interpretations of Dr. Imrie’s
deposition testimony, the trial court expressed its concerns: “The issue is even whether it


1
        Plaintiff saw Dr. Joseph, an orthopedic surgeon, for a second opinion regarding
the care she was receiving from Dr. Imrie. Dr. Joseph saw plaintiff in December 2009
and July 2010. When Dr. Joseph was deposed in March 2011, defense counsel asked
whether he had an opinion as to whether it was medically probable that plaintiff would
need knee replacement surgery. Dr. Joseph responded: “I could not say probable, on a
51 percent basis, but the possibility is certainly there because of the fact that she had
comminution, she had some settling of the . . . lateral side.” Plaintiff’s counsel asked:
“Now, if we take the accident, she’s 61 years old, 2009, and whatever somebody’s life
expectancy is at that age, within her lifetime, do you believe that she’s going to have to
have a total knee replacement to correct what happened to her in the accident?”
Dr. Joseph responded: “I would have to say that it’s possible. I can’t say probable.” He
explained that he would “like to see newer films” and he “would look for narrowing of
the joint . . . .”

                                             5
goes in front of the jury. I don’t want them to hear all of this testimony and then it ends
up that it’s not probable, because it just wasted their time. And it is, I think, prejudicial.
[¶] So you say, Mr. Kemp, you don’t know what your doctor is going to say. I almost
think we need to have a mini hearing before the trial so that I can determine what the
doctor is going to say. If he can’t say that it’s probable, then this issue doesn’t even get
raised with him. Because I want a preliminary showing that his testimony is even
relevant to that issue. I don’t want an issue raised before the jury that’s not going to be
put before them.” The trial court deferred ruling on the motion.
                             c. Evidence Code Section 402 Hearing
       The trial court conducted a hearing pursuant to Evidence Code section 402.
Dr. Imrie testified: “In the future, I think it’s likely that she will want further treatment,
perhaps including a total knee replacement” and, “[i]f her symptoms are severe enough,
then I think she would be a candidate for a total knee replacement.” Dr. Imrie found no
damage to the nerve near plaintiff’s fibula. Plaintiff’s X-rays were “normal except for
the fracture.” When plaintiff’s counsel asked Dr. Imrie whether he had “given [plaintiff]
an option in the future of having a total knee [replacement],” he replied, “I’ve told her
that that’s a possibility in the future.” The following exchange then occurred: “Q. Okay.
[¶] And one of the questions -- and it came about in your deposition, Dr. Imrie, is when
we’re dealing in a courtroom, we have to deal with probabilities, not possibilities. And
so my question to you is, looking back at her condition back in December of ’09, which
you indicated you believe is -- she was basically symptom free; is that right? [¶] A.
That’s correct. [¶] Q. Had a normal left leg? [¶] A. Correct. [¶] Q. Okay. [¶] And
now we know, 15 months later, you understand she’s still having problems? [¶] A.
That’s correct. [¶] Q. And she’s probably not going to get better? [¶] A. That’s
correct. [¶] Q. So the question is, the medical treatment available for her, other than
living the rest of her life in pain, is a total knee replacement, something that is probable in
her lifetime as a result of this accident of December the 4th of 2009? [¶] A. I think it’s
                                               6
more likely than not that at some time in her life she will decide she should have her knee
replaced.” Dr. Imrie understood that a total knee replacement “would occur when her
symptoms developed to the point when she found her activities limited enough that she
wanted to undergo that surgery.”
       On cross-examination, defense counsel questioned Dr. Imrie regarding his
deposition testimony. The following exchange occurred: “Q. Doctor, I have a few
questions. [¶] First of all, when . . . you were asked in the deposition, ‘Is she medically
probable to need a knee replacement,’ you said that she’s not; is that true? [¶] A. You
did not ask the question: Will she ever be -- probably be a candidate for a total knee
replacement? [¶] You asked the question: Is she now a candidate and you asked me:
Do you have plans to do the knee replacement? The answer to which of each of those is
no. However, in the future, I think it more likely than not that she will be a candidate.”
       The cross-examination continued: “Q. So a few minutes ago, you indicated that --
in a question that Mr. Kemp asked you about whether or not it’s medically probable that
she will need knee replacement in the future, you said that it’s more likely than not that
she will decide to do that in the future. [¶] A. That’s correct. [¶] Q. So it’s not
something that you think is medically probable from a doctor’s perspective; you’re
leaving it up to the patient to decide whether or not she can do this kind of activity and
require a knee replacement. [¶] A. She will make that decision when her symptoms
warrant, and at the point it will be medically indicated. And I believe it’s more likely
than not that at that point, at some point in the future, she will make that decision. [¶] . . .
[¶] A. I’m saying in the future I expect for her symptoms to get worse, and I expect to
agree with her at some time in the future that a total knee replacement would be
appropriate. [¶] . . . [¶] Q. . . . Well, that kind of gets to that point. It’s possible that
she’ll need a knee replacement in the future, but it’s not probable, is it? [¶] A. In my
opinion, it is probable.”


                                                7
       According to Dr. Imrie, none of the X-rays that were taken between
December 4, 2009 and April 11, 2011, showed degenerative changes in the left knee.
Dr. Imrie noted that the X-ray in April 2011 showed adequate joint space on her left side.
He further testified that, “if [plaintiff] maintains good joint space and there’s no
indication of arthritic changes, then she wouldn’t be a candidate for a total knee
replacement.” Dr. Imrie stated that the X-rays also showed slight valgus, that is, “a little
bit more knock-knee than normal.” This finding, however, did not change his opinion.
He would not expect to observe degenerative changes due to the accident a year and a
half after the accident, but he would expect such changes after “[s]everal years. Five
years, ten years. I don’t know how many years, but it is a process that occurs over many
years.” In his view, plaintiff “might not know for five to ten years if she is going to have
degenerative changes in . . . that knee.” After defense counsel asked, “And so that’s why
it’s not possible for you to say that it’s medically probable that she’ll have it because it’s
still something that may or may not occur in the future.” Dr. Imrie responded, “As I’ve
said, I think it’s probable that her changes will develop. I know of no data to support that
clearly. But in my opinion, it is probable that these changes will develop over the next
five, ten, fifteen years.”
       The trial court also questioned Dr. Imrie. “THE COURT: All right. [¶] I’m not
sure. If there is no data to support that there is a probability that change will happen in
the future, then what do you base your opinion on that it’s probable in the future she
would need this surgery? [¶] THE WITNESS: The problem, your honor, is there are no
comparison studies. In medicine, we look at evidence-based medicine, and to have an
experiment where we follow patients over years of the statistical significance, we don’t
have that data published. [¶] All orthopedic surgeons believe that injuries to joints lead
to degenerative change and so it’s based on common opinion, not on hard data. [¶] THE
COURT: I still don’t know . . . what you base your opinion on that it’s probable that she
may need surgery in the future. [¶] THE WITNESS: As I said, it’s based on the belief
                                               8
throughout the orthopedic community; not just my opinion, but all orthopedists, to my
knowledge, believe that an injury to a joint is more likely than not to lead to a
degenerative change. [¶] THE COURT: But we won’t know that for five to ten years.
[¶] THE WITNESS: Correct. [¶] THE COURT: So in five to ten years, we might not
see any change. [¶] THE WITNESS: We might not. But I think it’s more likely than
not that we will see changes and that she will develop symptoms at some point.”
       Plaintiff’s counsel argued that Dr. Imrie’s testimony satisfied the requirement that
it was probable that plaintiff would require knee replacement surgery. He also
acknowledged that Dr. Mills, the defense expert, and Dr. Joseph disagreed with Dr.
Imrie’s opinion and that defense counsel could impeach Dr. Imrie with his deposition
testimony. Defense counsel argued that “the definition of possibility has been changed to
probability. Because when I asked him in deposition if she’s a candidate for total knee
replacement, now he’s trying to parse words and say not at this time but it’s probable in
the future but he can’t really nail down anything that’s going on with respect to [plaintiff]
that would trigger that probability. [¶] . . . [¶] I did follow up with a question that said
there are no plans for future surgery with respect to her and he said, ‘I don’t have any
plans at this time.’ And then he lets her go and says, come back on an as-needed basis.
There are no plans. It’s a possibility.”
                                   d. The Trial Court’s Ruling
       The trial court granted the motion in limine to exclude evidence of future knee
replacement surgery. The trial court reasoned: “So you will note from the in limine
motion that my first impression of reading the deposition testimony was that in the
doctor’s deposition, it seemed that he said that there was no probability, and that’s why
we had this hearing; right? [¶] And because, Mr. Kemp, you said that it wasn’t very
clear in the deposition testimony. [¶] What I am most struck by today is that the doctor
says there is no data to support his opinion that the operation might be more likely than
not and he says he won’t know for five to ten years. So I think while he says ‘more likely
                                               9
than not,’ I think Mr. Pinelli is correct: that’s more of a possibility than a probability. [¶]
There is no spacing issue; there’s no degenerative changes. . . . [¶] I find that there is no
probability. There may be a possibility of future knee replacement surgery, but I haven’t
been shown anything that there is a probability.”
                                        2. Legal Analysis
         A plaintiff in a personal injury action must prove damages “within a reasonable
medical probability based upon competent expert testimony.” (Jones v. Ortho
Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) However, “even when the
witness qualifies as an expert, he or she does not possess a carte blanche to express any
opinion within the area of expertise. [Citation.] . . . [W]hen 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 because an
‘expert opinion is worth no more than the reasons upon which it rests.’ [Citation.]”
(Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108,
1117.)
         The trial court “may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will . . . create substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
“Generally, a trial court’s ruling on the admissibility of evidence is reviewed for an abuse
of discretion. [Citation.] Accordingly, an in limine ruling to keep particular items of
evidence from the jury is subject to reversal only where the trial court exceeded the
bounds of reason. [Citation.] In other words, the appellate court will not disturb the trial
court’s decision unless the trial court exceeded the limits of legal discretion by making an
arbitrary, capricious or patently absurd determination. [Citation.] Moreover, when two
or more inferences can reasonably be deduced from the facts, the appellate court cannot
substitute its decision for that of the trial court. [Citation.]” (Ceja v. Department of
Transportation (2011) 201 Cal.App.4th 1475, 1481.)
                                              10
       Here, Dr. Imrie initially testified that it was “possible” that plaintiff would require
knee replacement surgery, and later testified that it was probable and more likely than not
that such surgery would be required. According to Dr. Imrie, if plaintiff maintained
adequate joint space and there was no other indication of arthritic changes, she would not
be a candidate for knee replacement surgery. He then conceded that none of the X-rays
taken after the accident, including the most recent X-ray taken on April 11, 2011, showed
degenerative changes in her left knee. Dr. Imrie had no future appointments scheduled
for plaintiff and he confirmed that plaintiff did not have “any significant ligament
problem.” He explained that he would not expect to see degenerative changes for many
years, but he had no data to support this opinion. Instead, his opinion was based on “the
belief throughout the orthopedic community . . . [that] all orthopedists, to [his]
knowledge, believe that an injury to a joint is more likely than not to lead to a
degenerative change.” Thus, since plaintiff’s proffered evidence lacked an adequate
foundation, the trial court did not abuse its discretion in excluding Dr. Imrie’s opinion
testimony regarding future knee surgery.2
       Moreover, even assuming that the trial court abused its discretion in excluding
Dr. Imrie’s testimony regarding future knee surgery, plaintiff has failed to show
prejudice. A trial court’s erroneous ruling on the admissibility of evidence “ ‘is grounds
for reversing a judgment only if the party appealing demonstrates a “miscarriage of
justice”—that is, that a different result would have been probable if the error had not
occurred.’ [Citations.]” (Pannu v. Land Rover North America, Inc. (2011) 191
Cal.App.4th 1298, 1317.) Had plaintiff presented Dr. Imrie’s testimony, defendant
would have presented expert testimony from two other orthopedic physicians, Dr. Joseph


2
       Since we conclude that the trial court properly excluded Dr. Imrie’s testimony
about future knee surgery, we need not consider plaintiff’s contention regarding future
medical treatment and future wage loss.

                                              11
and Dr. Mills.3 They would have contradicted Dr. Imrie’s testimony that it was
reasonably probable that plaintiff would require knee replacement surgery and his
“belief” that “all orthopedists . . . believe that an injury to a joint is more likely than not
to lead to a degenerative change,” which was the basis for his opinion. In addition,
Dr. Imrie would have been impeached with his equivocal testimony at both his deposition
and the Evidence Code section 402 hearing on the need for future surgery. The jury
would also have been informed that he had been plaintiff’s friend for many years. Under
these circumstances, there has been no miscarriage of justice.
       Plaintiff also challenges the trial court’s ruling on other grounds. She contends
that the trial court committed reversible error by “usurp[ing] the jury’s right [sic] to
determine whether plaintiff would need future knee surgery.” She claims that the trial
court’s ruling to exclude Dr. Imrie’s testimony was based on credibility, which was an
issue for the jury to resolve. The record does not support her claim. When plaintiff’s
counsel suggested that the trial court may not have found Dr. Imrie credible, the trial
court responded: “It wasn’t credibility. It was basically what he couldn’t say, that it was
probable. Well, even though he used that word, there was nothing of substance to show
that it was probable. [¶] . . . [¶] And you have to state a basis of your opinion. You can’t
just state something without any meaning behind it.”
       Plaintiff argues that the trial court erroneously excluded Dr. Imrie’s opinion
testimony because it failed to meet the standards for the evaluation of a new technique as

3
        Plaintiff asserts that it is “sheer[ ] speculation” that defendant would have called
Dr. Joseph to testify at trial. Given Dr. Joseph’s deposition testimony, it is unclear why
plaintiff would not have expected Dr. Joseph to be called by the defense if Dr. Imrie’s
opinion testimony had been ruled admissible. Plaintiff also claims that Dr. Joseph
testified that “he could not say that she needed knee replacement surgery without seeing
more recent x-rays.” Dr. Joseph testified that it was possible, but not probable, that
plaintiff would need knee surgery. He explained that he would “like to see newer films”
and he “would look for narrowing of the joint.” As Dr. Imrie noted, the most recent
X-ray in April 2011 showed adequate joint space.

                                               12
set forth in People v. Kelly (1976) 17 Cal.3d 24 and Frye v. United States (D.C. Cir.
1923) 293 F. 1013. There is no merit to this argument. The trial court excluded the
evidence because it lacked foundation.
       Noting that the “motion was to exclude medical ‘possibilities’ and to permit only
medical ‘probabilities,’ ” plaintiff contends that “[t]his is simply the law of evidence and
is not the proper subject of a motion in limine.” Plaintiff is incorrect. “Evidence Code
section 801 requires that any opinion of an expert be based upon matter that is of the type
that reasonably may be relied upon. This inquiry by the trial court can be held in an in
camera hearing. . . .” (Hyatt v. Sierra Boat Co. (1978) 79 Cal.App.3d 325, 339.) Here,
the trial court properly held an in camera hearing to determine whether Dr. Imrie’s
opinion had an adequate foundation.


                                      B. Motion for Mistrial
       Plaintiff contends that the trial court erred by failing to declare a mistrial “when
defense doctor, and defense counsel, testified that no future medical treatment would be
necessary” for plaintiff, thereby violating the order in limine.
       Here, the following exchange occurred between defense counsel and Dr. Mills:
“Q. And is there anything else that indicates to you with respect to any kind of potential
arthritis? [¶] A. Well, knowing [plaintiff’s] age and seeing that amount of cartilage
remaining, it would indicate that she’s got a reasonable amount of cartilage to the point
that she’s probably not going to need any future intervention along the lines of what we
orthopedists tend to do to people when their [knee] joint wears out. Her knee is unlikely
to wear out. [¶] Q. So it’s not probable that she would need knee replacement surgery --
if that’s what you mean when you say no intervention with respect to the knee wearing
out?” Before Dr. Mills answered the question, plaintiff’s counsel asked to approach the
bench and a bench conference was held. The trial court then stated: “The objection is


                                             13
sustained. The issue of knee replacement is irrelevant to this case. And it is stricken.
The jury is to disregard any of that testimony.”
       First, a trial court has no duty to act sua sponte to order a mistrial. (Roemer v.
Retail Credit Co. (1975) 44 Cal.App.3d 926, 941-942.) Second, to the extent that defense
counsel’s questions or Dr. Mill’s responses suggested that future knee surgery for
plaintiff would not be necessary, plaintiff’s counsel did not request a mistrial. Instead,
plaintiff’s counsel promptly objected. The trial court then properly sustained the
objection since the order barred “expert witnesses . . . from making any reference to the
‘possibility’ of surgery or its related cost.” “ ‘It is only in extreme cases that the court,
when acting promptly and speaking clearly and directly on the subject, cannot, by
instructing the jury to disregard such matters, correct the impropriety of the act of counsel
and remove any effect his conduct or remarks would otherwise have.’ [Citation.]” (Horn
v. Atchison, T. & S.F.R. Co. (1964) 61 Cal.2d 602, 610.) Here, the reference to knee
replacement surgery was brief, and Dr. Mills did not render his opinion. Thus, the
misconduct was not aggravated. Under these circumstances, “we presume that the jury
followed the instructions” since there is nothing in the record to show that they did not do
so. (Bell v. Bayerische Motoren Werke Aktiengesellschaft (2010) 181 Cal.App.4th 1108,
1123.) Accordingly, we reject plaintiff’s contention.


                                        IV.    Disposition
       The judgment is affirmed.




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                                 _______________________________
                                 Mihara, J.



WE CONCUR:




______________________________
Premo, Acting P. J.




______________________________
Grover, J.




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