 


Filed 7/23/14 Seamans v. Xiong CA5




                            NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                  IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                                         FIFTH APPELLATE DISTRICT



LAURINDA SEAMANS,                                                                          F067034

              Plaintiff and Appellant,                                       (Super. Ct. No. MCV057322)

                             v.                                                          OPINION
XANG XIONG et al.,

              Defendants and Respondents.


                                                               THE COURT*
              APPEAL from a judgment of the Superior Court of Madera County. Dale J. Blea,
Judge.
              McClaugherty & Associates and Jay S. McClaugherty for Plaintiff and Appellant.
              Cholakian & Associates, Kevin K. Cholakian and Jeremy M. Jessup for
Defendants and Respondents.

                                                                  -ooOoo-

              Plaintiff appeals from the judgment against her in a personal injury action arising
out of a motor vehicle accident. She challenges admission of certain testimony by

                                                            
*             Before Hill, P. J., Levy, J. and Detjen, J.

 
 



defendants’ expert witness, asserting it was beyond his expertise and beyond the scope of
the opinions he indicated in his deposition that he would offer at trial. We conclude the
trial court did not abuse its broad discretion by admitting the testimony; the expert did not
exceed the scope of his deposition testimony and plaintiff failed to demonstrate that the
challenged testimony was outside his area of expertise. Further, it is not reasonably
probable a more favorable result would have ensued in the absence of the challenged
testimony; any error was not prejudicial. Accordingly, we affirm the judgment.
                   FACTUAL AND PROCEDURAL BACKGROUND
       Plaintiff was traveling on Avenue 26, a straight, bumpy farm road, behind a
chicken truck belonging to defendant, Palmer Farms, and driven by defendant, Xang
Xiong. She decided to pass the truck. According to Greg Conner, a witness who was
driving a car approaching from the opposite direction, plaintiff pulled into the oncoming
traffic lane and, about the time her pickup was side by side with the chicken truck, the
truck began a left turn into the driveway of Palmer Farms. The two collided and
plaintiff’s pickup left the roadway and rolled over two to four times. When Conner
arrived at the scene, plaintiff had climbed out the driver’s door, which was facing
upward, and he helped her down.
       At trial, there was differing testimony regarding the speed of defendants’ truck,
how long plaintiff was in the oncoming traffic lane before the collision, and whether
Xiong was preparing to turn left before or at the same time plaintiff began her passing
maneuver. Plaintiff and Xiong both testified they signaled before moving or turning to
the left. Conner testified he did not see a turn signal on either vehicle.
       Plaintiff’s trucking expert testified plaintiff’s pickup would have been in Xiong’s
line of sight in his side mirror if he had looked in the mirror while she was passing in the
oncoming traffic lane. Plaintiff’s accident reconstruction expert testified plaintiff began
her lane change well before the chicken truck began its left turn, and her pickup would
                                              2
 
 



have been visible in Xiong’s side mirror as soon as it entered the passing lane.
Defendants’ accident reconstruction expert testified that his engineering calculations
resulted in a range of possibilities and, because of the slow speed of defendants’ truck, it
could not be determined whether defendants’ truck began its turn before or after
plaintiff’s pickup moved into the oncoming traffic lane.
       The final witness was defendants’ trucking expert, Lewis Grill. He opined that
Xiong acted properly in checking his side mirror a few seconds before he began his left
turn and not checking it again as he began turning because at that point his attention was
properly on what was ahead of him. After drawing Grill’s attention to Conner’s
testimony that he did not see either vehicle display a turn signal, defense counsel asked
Grill how far away a driver would be able to observe whether an oncoming vehicle had a
turn signal on or not. Plaintiff’s counsel objected that the question called for a human
factors opinion, called for an opinion that was not given by Grill at his deposition, and
was beyond the scope of direct examination. The court overruled the objections. Grill
testified:

       “In two and a half million miles of driving trucks and in visiting that scene,
       let’s call it the accident scene, when you look to eastbound where Mr.
       Conner was because he was driving westbound and Mr. Conner says about
       a quarter of a mile away, the next turn after Palmer Farms is a street that’s
       up there that I estimate to be probably about a quarter of a mile away. A
       tractor trailer had come out of that street going I guess that would be
       southbound to make a right-hand turn and go west onto 26 which would be
       approximately the same distance and same direction as Mr. Conner and he
       either didn’t use his turn signal or didn’t have it on. But you wouldn’t be
       able to see it from that distance. Federal Motor Vehicle Safety standards
       only set it up so that it needs to be seen from 500 feet away. Quarter of a
       mile is 1380 feet. And so, you know, I’m not trying to downplay Mr.
       Conner, but unless he has binoculars, I don’t see how he’d know that.”

There were no further questions from either attorney.



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       Before closing arguments, plaintiff made a motion for mistrial based on Grill’s
opinion about the turn signals. The trial court denied it. The jury returned a verdict in
favor of defendants. Plaintiff subsequently moved for a new trial, asserting plaintiff was
surprised by Grill’s unexpected testimony regarding visibility of the turn signals. The
trial court denied that motion. Plaintiff appeals, contending it was error to permit Grill to
testify to an opinion that was not within his area of expertise and was not expressed in his
deposition. Plaintiff challenges the judgment and the denial of her motion for a new trial.
                                       DISCUSSION
I.     Standard of Review
       “A trial court’s ruling on the admissibility of evidence is generally reviewed for
abuse of discretion.” (Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th 1471,
1476.) “‘“The burden is on the party complaining to establish an abuse of discretion ....”’
[Citation.]” (Blank v. Kirwan (1985) 39 Cal.3d 311, 331.) “‘An abuse of discretion
occurs if, in light of the applicable law and considering all of the relevant circumstances,
the court’s decision exceeds the bounds of reason and results in a miscarriage of justice.
[Citations.] The abuse of discretion standard affords considerable deference to the trial
court, provided that the court acted in accordance with the governing rules of law.’”
(Kayne v. The Grande Holdings Limited (2011) 198 Cal.App.4th 1470, 1474-1475.)
       “A motion for a new trial is directed to the sound discretion of the trial judge, who
must pass upon the credibility of the witnesses and the weight and probative force of their
testimony.” (Myles v. Los Angeles Ry. Corp. (1943) 62 Cal.App.2d 14, 17.) The trial
court’s decision “will not be disturbed in the absence of a clear and affirmative showing
of gross, manifest, or unmistakable abuse of discretion. [Citation.]” (Flores v. McCoy
(1960) 186 Cal.App.2d 502, 506.)




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II.           Admissibility of Evidence about Visibility of Turn Signals
              A party to litigation may make a demand for an exchange of information about
expert witnesses the parties intend to call at trial. (Code Civ. Proc., § 2034.220.)1 If the
demand is made, all parties must exchange lists of the expert witnesses they plan to call
at trial, or state that they do not intend to offer any expert testimony. (§ 2034.260, subds.
(a), (b).) For any expert witnesses retained by a party to give expert testimony, the
exchange must include a declaration setting out the qualifications of the expert and “the
general substance of the testimony that the expert is expected to give.” (§ 2034.260,
subd. (c)(1), (2).) “As interpreted by the California courts, this requires a party to
‘disclose the substance of the facts and the opinions to which the expert will testify, either
in his witness exchange list, or in his deposition, or both.’ [Citations.]” (Williams v.
Volkswagenwerk Aktiengesellschaft (1986) 180 Cal.App.3d 1244, 1257-1258, italics
omitted.) It does not require disclosure of specific facts and opinions. (Id. at p. 1258.)
              Defendants’ expert witness designation included Grill as a retained expert. The
accompanying declaration stated Grill would testify to “issues relating to the safe
operational practices of commercial truck drivers and associated standards of care; the
practical operation of commercial trucks on highways, operation of commercial trucks for
turning maneuvers, issues of evasive maneuvers and accident avoidance in commercial
trucks”; it also stated Grill would give rebuttal testimony, related to his field of expertise.
In his deposition, Grill listed ten opinions he had reached. Opinion 4 was that plaintiff
was not paying attention or driving defensively and, as she approached defendants’
vehicle, she did not notice it was preparing to make a turn; opinion 6 was that Xiong
signaled his left turn by activating his turn signal and slowing sufficiently to make the
turn. In his deposition, Grill stated his opinion that Xiong signaled his turn by activating
                                                            
1       All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.
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the turn signal and slowing down was based on the following facts: Xiong was turning
into Palmer Farms on the left, and he testified he activated his turn signal. The truck
could not have made the turn at a high rate of speed, so it had to slow down; Xiong also
said he slowed down from 40 or 45 miles per hour, to 25, then to 4 miles per hour.
Additionally, Conner indicated the truck slowed down considerably. Grill stated his
opinion was based on the testimony of Xiong and Conner, physics, logic, and the
testimony of defendants’ accident reconstruction expert. After Grill discussed his ten
opinions in his deposition, he was asked whether that was all the opinions about which he
intended to testify at trial, and Grill answered affirmatively. He then added:

       “[Y]ou have all of my opinions that are based on the information and
       material that I read today and that I render in this case at this point in time.
       However, I reserve the right to supplement my opinions predicated on new
       information that becomes available to me and other investigation that I may
       do into this case if asked, and I don’t know what you’re going to ask me at
       trial.”
       During cross-examination at trial, plaintiff’s attorney asked Grill if he was aware
that a witness testified Xiong did not put his turn signal on. Grill responded: “I’m aware
that Mr. Conner said he didn’t see a turn signal. He doesn’t know if he put it on or not.
He doesn’t know what Mr. Xiong would know.” On redirect, defense counsel asked Grill
to recall Conner’s testimony that he did not see a signal on defendants’ truck; he asked
Grill, as a truck driver, how far in distance a truck driver would be able to observe
whether oncoming vehicles had their signals on or not. Grill then gave the challenged
response suggesting Conner, a quarter of a mile away, was too far away to see whether
the parties’ turn signals were turned on.
       At the hearing of plaintiff’s motion for a new trial, after reviewing the transcript of
Grill’s deposition and its discussion of Grill’s sixth opinion, the trial court stated:

       “Now, when Conner testified at trial that he didn’t see the signal and …
       that point was … made to Grill during cross-examination, well, Mr. Grill
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       would naturally address that. And it seems to me that it would be natural
       for Mr. Grill to support his opinion. So given the fact that his sixth opinion
       relates directly to whether Xiong turned his signal on before he started his
       turn or not, it’s hard for me to conclude that there is surprise that the
       witness who indicated that that was one of his opinions would testify at trial
       regarding that opinion.”
The trial court concluded Grill’s deposition made clear the issues he would address, and
his trial testimony was consistent with what was in his deposition. Accordingly, it found
no error in allowing the testimony to be admitted.
       “When an expert deponent testifies as to specific opinions and affirmatively states
those are the only opinions he intends to offer at trial, it would be grossly unfair and
prejudicial to permit the expert to offer additional opinions at trial.” (Jones v. Moore
(2000) 80 Cal.App.4th 557, 564-565 (Jones).) Where, however, the opinion expressed at
trial is within the general ambit of the facts and opinions the expert has disclosed in his
deposition, and does not involve a new area of inquiry not previously disclosed, the trial
court does not abuse its discretion by permitting the expert to express that opinion.
(DePalma v. Rodriguez (2007) 151 Cal.App.4th 159, 165.)
       In his deposition, Grill testified to his opinion that Xiong signaled his left turn by
activating his turn signal and slowing down. He based his opinion on the testimony of
Xiong and Conner, physics, logic, and the testimony of defendants’ accident
reconstruction expert. He specifically based his opinion that Xiong activated his turn
signal on Xiong’s testimony. At his deposition, Grill was not asked to comment on
plaintiff’s or Conner’s testimony that they did not see Xiong’s turn signal. When asked
at trial about Conner’s testimony, Grill expanded on his already expressed opinion that
Xiong activated his signal by relating his experience at the accident site, where he was
unable to see whether the turn signal on a truck approximately a quarter of a mile away
was activated, and by stating the federal standard for visibility of turn signals is 500 feet.
The challenged testimony did not address a new area of inquiry, outside the opinions

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expressed in Grill’s deposition. Consequently, we conclude the trial court did not abuse
its discretion by overruling plaintiff’s objection to Grill’s testimony.
       Plaintiff also seems to contend her motion for new trial should have been granted
on the ground of surprise because Grill testified to a new opinion not disclosed in his
deposition. A new trial may be granted on the ground of “[a]ccident or surprise, which
ordinary prudence could not have guarded against.” (§ 657, subd. (3).) “‘The “surprise”
mentioned by the statute must be the result of some fact or circumstance or situation
occurring at the trial which could not in the nature of the case reasonably have been
anticipated would arise and which is of such importance or magnitude in its influence
upon the result arrived at from the trial as to have produced as against him or his rights
injury or damage. The mere giving of testimony contrary to the interests of a party, or
even the fact that false testimony has thus been given, although wholly unexpected by the
party against whom it is given, will not itself always operate as a predicate for the
awarding of a new trial of the issue.’” (Wilson v. Kopp (1952) 114 Cal.App.2d 198, 206-
207 (Wilson).)
       The question on appeal from the denial of a new trial motion is “whether, on the
affidavits submitted, the trial court was compelled to grant the new trial, not whether the
affidavits would have supported an order granting the new trial.” (Wilson, supra, 114
Cal.App.2d at p. 205.) “[T]he precise question presented is whether the trial court, as a
matter of law, abused [its] discretion in denying the motion.” (Ibid.) “While a trial court
may grant a motion for a new trial on [the ground of surprise] where it appears that a
party is misled by a witness as to the evidence expected from him, or is unexpectedly
presented with claimed perjured testimony, the court is not compelled to grant the motion
where the evidence relates to an issue that is obviously within the issues to be tried.” (Id.
at p. 206.)


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              The trial court was not, as a matter of law, required to grant plaintiff’s motion for
new trial. It exercised its discretion and determined the matter about which Grill testified
was not only within the issues to be tried, but was within the scope of the issues to which
he testified in his deposition. We find no error in that determination.
              The cases relied on by plaintiff are distinguishable. In Kennemur v. State of
California (1982) 133 Cal.App.3d 907 (Kennemur), a defense accident reconstruction
expert testified the automobile accident in issue was caused when plaintiff steered her
Volkswagen Super Beetle (VW) to the left across the center line into the path of another
vehicle. (Id. at p. 912.) He based his opinion on tire tracks on the roadway in
photographs of the scene. Plaintiff proposed to rebut this testimony with her accident
reconstruction expert, Ted Mitchell. (Ibid.) In three depositions of Mitchell taken before
trial, however, he consistently denied having any opinions about roadway issues,
indicated his work was limited to issues related to the VW, and stated another expert
designated by plaintiff would address roadway issues. (Id. at pp. 912-914.) The trial
court excluded Mitchell’s testimony and the appellate court found no error. “The
decisive fact in the present case is [plaintiff’s] failure to disclose Mitchell’s expected
testimony concerning the tire tracks either at Mitchell’s deposition or as required by
section 2037.3.”2 (Kennemur, at p. 918, fn. omitted.) “The fact that early in the lawsuit
Mitchell had been given copies of the California Highway Patrol accident report and the
photographs showing the tire tracks and that Mitchell had calculated energy absorption
and impact damage concerning the VW, does not mean he had analyzed the tracks or the
condition of the highway as a cause of the accident. To the contrary, he specifically
                                                            
2        Similar to current section 2034.260, subdivision (c)(1) and (2), former section 2037.3
then provided: “‘Each witness list shall include the name and business or residence address of
each expert witness whom the party expects to call in person or through deposition and a brief
narrative statement of the qualifications of such witnesses and the general substance of the
testimony which the witness is expected to give.’” (Kennemur, supra, 133 Cal.App.3d at p. 917,
italics omitted.)
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testified at his deposition that he had not investigated that phase of the accident.
Respondent was entitled to rely on Mitchell’s disclaimer until such time as appellant
disclosed that Mitchell had conducted a further investigation and had reached additional
opinions in a new area of inquiry.” (Id. at pp. 919-920.)
       City of Fresno v. Harrison (1984) 154 Cal.App.3d 296 (City of Fresno), was an
eminent domain case in which the only issue was the value of defendants’ business
goodwill. (Id. at pp. 298-299.) Defendants complied with the requirements for
designating experts under the eminent domain statutes, but plaintiff did not retain its
expert until one month before trial. At his deposition, plaintiff’s expert had not reviewed
the data or formed any opinion. (Id. at p. 299.) At trial, defendants presented their case
and then objected to plaintiff’s expert testifying. The court suggested granting a
continuance, but defendants believed the time lapse after presentation of their case would
prejudice them. (Id. at pp. 299-300.) The trial court allowed the expert to testify and the
jury found defendants suffered no loss of goodwill. After trial, defendants discovered
plaintiff’s expert had relied on information the court had precluded in a prior ruling. The
trial court granted defendant’s new trial motion on the grounds of irregularity in the
proceedings and surprise, and plaintiff appealed. (Id. at p. 300.)
       The court affirmed the order for a new trial, concluding: “In this case City failed
to reveal that the expert was using information the court had precluded. To offer the
objecting party a continuance immediately prior to trial disregards the right of the party to
the trial date; to offer a break in the middle of the trial after the owner rests is even more
unfair. It affords the condemner an undeserved opportunity to stop and formulate a
response to the owner’s case while the juror’s memories of the previous testimony dim.
It was not an abuse of discretion for the trial court to grant a new trial based upon the
surprise.” (City of Fresno, supra, 154 Cal.App.3d at pp. 301-302.)


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       In Easterby v. Clark (2009) 171 Cal.App.4th 772 (Easterby), Dr. John Regan, a
treating physician in a personal injury action, was deposed and stated he was not asked to
form an opinion regarding causation. Plaintiff’s attorney later sent a letter to defendants,
advising that Regan would testify at trial that the incident in which plaintiff was injured
caused the need for surgery. (Id. at pp. 775-776.) Defendants did not depose Regan
about that opinion. Prior to trial, defendants moved to exclude expert testimony about
opinions not expressed in the experts’ depositions. Plaintiff did not oppose and the
motion was granted. (Id. at p. 776.) At trial, Regan’s testimony included his opinion that
the incident in issue caused the need for surgery. (Ibid.) Defendants moved to strike all
of Regan’s testimony on the ground his causation opinion was not disclosed in his
deposition and the court had excluded such opinions. (Id. at p. 777.) The trial court
granted the motion, then granted defendants’ motion for nonsuit because there was no
other evidence of causation. (Ibid.)
       The appellate court concluded the trial court abused its discretion by striking
Regan’s testimony. (Easterby, supra, 171 Cal.App.4th at p. 778.) It acknowledged that
an expert must disclose the substance of the facts and opinion to which the expert will
testify, either in the witness exchange list or in deposition, or both. (Ibid.) The court
distinguished Kennemur and other cases: “The overarching principle in Kennemur,
Jones, and Bonds [v. Roy (1999) 20 Cal.4th 140] is clear: a party’s expert may not offer
testimony at trial that exceeds the scope of his deposition testimony if the opposing party
has no notice or expectation that the expert will offer the new testimony, or if notice of
the new testimony comes at a time when deposing the expert is unreasonably difficult.”
(Easterby, at p. 780, italics omitted & added.) In Easterby, in contrast, the defendants
had notice of the new opinion and an opportunity to depose the expert again before trial
to explore it, but they failed to take advantage of that opportunity. (Ibid.)


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              In Kennemur, the expert testimony proffered at trial was about an issue the expert
stated in multiple depositions that he had no opinion about and another expert witness
would address. Grill’s testimony regarding Xiong’s use of his turn signal and Conner’s
statement that he did not see a turn signal was within the scope of the opinions Grill
expressed at his deposition; in his deposition, he did not deny having an opinion on these
issues or refer the issues to another expert witness. The trial court in City of Fresno,
granted a new trial because the plaintiff’s expert was unprepared and expressed no
opinions during his deposition, and the trial court learned after the trial that the expert
based his opinion on improper matter. There was no such occurrence in this case. In
Easterby, the expert testimony offered at trial was not within the scope of the expert’s
deposition testimony, but it was within the scope of the issues the plaintiff subsequently
notified the defendants the expert would testify to. Grill’s trial testimony was within the
scope of the facts and opinions he discussed in his deposition.
              Plaintiff also asserts the evidence should have been excluded or a new trial should
have been granted because Grill testified to an opinion that was beyond his area of
expertise. Plaintiff contends an opinion regarding visibility of a turn signal was within
the expertise of a human factors expert, not a trucking expert, and Grill was not qualified
to testify as a human factors expert. Although plaintiff asserts Grill was not qualified to
testify regarding whether a driver could see a turn signal or not because he was not a
human factors expert, and baldly states “[w]hat a driver can and cannot see is a human
factors opinion,” she cites nothing in the record and no legal authority in support of these
assertions.3 Accordingly, she has not carried her burden of demonstrating error on this
basis.
                                                            
3      The appellant bears the burden of establishing error in the judgment. To do so, “[t]he
appellant must present an adequate argument including citations to supporting authorities and to
relevant portions of the record.” (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154
Cal.App.4th 547, 557.)
                                                               12
 
 



III.   Prejudice
       Even if we were to find error in the admission of Grill’s challenged testimony, that
error would not justify reversal of the judgment. “An evidentiary ruling, even if
erroneous, is not reversible absent a miscarriage of justice. [Citations.] ‘[A]
“miscarriage of justice” should be declared only when the court, “after an examination of
the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable
that a result more favorable to the appealing party would have been reached in the
absence of the error.’ [Citation.]” (Easterby, supra, 171 Cal.App.4th at p. 783.) “[A]
‘probability’ in this context does not mean more likely than not, but merely a reasonable
chance, more than an abstract possibility. [Citations.]” (College Hospital Inc. v.
Superior Court (1994) 8 Cal.4th 704, 715.)
       After an examination of the evidence, we reject plaintiff’s contention that
admission of Grill’s testimony was prejudicial because Conner was the only eyewitness
to the accident, his testimony was favorable to plaintiff, and Grill’s testimony that Conner
could not have seen whether Xiong’s turn signal was on from a quarter of a mile away
“destroyed” Conner’s credibility. The trial court concluded admission of Grill’s
testimony did not prejudice plaintiff. It heard all of the evidence and observed the
demeanor of the witnesses as they testified. The trial court was in a better position than
this court to judge the effect of the evidence on the jury. At the hearing of the motion for
new trial, the trial court reviewed the evidence admitted at trial and noted it did not give
much consideration to Conner’s testimony; if it had been the trier of fact, it would not
have relied heavily on Conner’s testimony. The trial court observed that, in light of all
the other evidence presented, Grill’s testimony was “a very small issue.” In light of the
testimony of the Highway Patrol officer and the two accident reconstruction experts, the
trial court could not reasonably conclude the verdict would have been different if Grill
had not been allowed to testify.
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       The evidence supports the trial court’s conclusions. As the trial court pointed out,
Conner was not the only eye witness to the collision. Both plaintiff and Xiong testified
about how the incident occurred. Xiong testified he was traveling at 45 miles per hour
when he first saw plaintiff behind him. He applied his brakes and slowed to 25 miles per
hour, then he slowed to 4 to 5 miles per hour before starting to turn. Xiong put on his
turn signal; he checked his side mirror 2 to 10 seconds before turning the wheel. When
Xiong turned his truck, plaintiff’s pickup crashed into it.
       Plaintiff testified she followed Xiong’s truck for some time, matching his speed of
45 miles per hour. The truck was traveling 35 to 40 miles per hour when she decided to
pass it; she passed it at a speed of about 47 miles per hour. The truck’s left-turn signal
and brake lights did not come on before she passed or while she was passing. Plaintiff
denied that Xiong slowed down to 4 or 5 miles per hour; she stated she had to accelerate
to pass the truck and if he had been going 5 miles per hour, she could have passed him in
a second. She testified she was in the passing lane 15 seconds.
       Plaintiff’s accident reconstruction expert based his opinion on Conner’s deposition
testimony and his own assumptions and calculations. He took into consideration
Conner’s testimony plaintiff’s pickup was in the westbound lane one to several seconds
before the truck started its left turn. He calculated plaintiff’s pickup was traveling 45 to
55 miles per hour at impact, accepted Xiong’s testimony he was traveling 4 to 5 miles per
hour before he began his turn, and opined plaintiff’s pickup would have been visible in
Xiong’s mirror for 3 to 5 seconds before the point of impact.
       Defendants’ accident reconstruction expert concluded Xiong’s speed at the time of
impact was about 5 miles per hour and plaintiff’s was 40 to 50 miles per hour. He relied
on Conner’s testimony in many of his opinions. He concluded the pickup and the truck
initiated their movements (left turn and passing maneuver) within a second or two of each
other, and there was no way to say which occurred first. If plaintiff began her passing
                                             14
 
 



movement first, it was no more than a second before Xiong began his turn and he
couldn’t say with any degree of engineering certainty whether plaintiff’s pickup would
have been visible in Xiong’s mirror for even that second.
       Plaintiff contends Grill’s testimony that Conner could not have seen whether
Xiong’s turn signal was activated from a quarter of a mile away destroyed Conner’s
credibility, regarding both the turn signal not being on and the two vehicles being side by
side before the collision. Grill’s testimony, however, did not contradict Conner’s
testimony that he did not see a signal on the truck before it attempted to turn. Grill
proposed an alternative explanation why Conner did not see a signal on the truck that was
consistent with Xiong’s testimony that he activated his signal before he turned. Grill’s
testimony did not, as plaintiff asserts, suggest that Conner was a liar or destroy his
credibility. It did not in any way disparage Conner’s testimony that the vehicles were
side by side before the collision, especially in light of the fact both accident
reconstruction experts relied heavily on that testimony in reaching their conclusions. The
evidence supports the trial court’s conclusion it was not reasonably probable a result
more favorable to plaintiff would have been reached if Grill’s testimony had been
excluded. Neither admission of the testimony nor denial of plaintiff’s new trial motion
was an abuse of discretion.
                                       DISPOSITION
       The judgment is affirmed. Defendants are entitled to their costs on appeal.

 

 

 

 

 

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