13 Cal.App.5th 692
Cal. Ct. App.2017Background
- In June 2010 Hernandez, driving a tractor‑trailer, turned from a parking area across the southbound lane into northbound traffic; his slow‑moving trailer was struck in the southbound lane by Joshua David’s minivan, causing David severe shoulder injuries.
- David was extricated after ~45 minutes and sustained an open fracture of the left humeral head requiring partial shoulder replacement; jury found Hernandez negligent and David not substantially negligent.
- On retrial the jury awarded $3,317,580, including future medical expenses for four future shoulder surgeries priced at $161,750 each.
- Hernandez conceded one future surgery was reasonably certain but challenged the evidence supporting three additional revision surgeries and sought to admit expert testimony that David was marijuana‑impaired at the time of the crash.
- The trial court excluded Hernandez’s proffered marijuana‑impairment expert testimony based on inadequate foundation (preliminary urine screen, no measure of active THC, symptoms explainable by stress/injury) and denied a Section 402 evidentiary hearing (no request made).
- The court affirmed the award for four future shoulder surgeries, concluding that testimony from treating surgeon Dr. Norris plus the life‑care plan and economist testimony supplied substantial evidence from which a reasonable jury could find four surgeries reasonably certain.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of expert opinion that plaintiff was marijuana‑impaired | Exclude: no reliable basis connecting preliminary urine screen to impairment | Admit: expert may opine impairment from positive THC screen and post‑accident vitals/symptoms | Trial court did not abuse discretion in excluding testimony; opinion was too speculative and lacked foundation (Evidence Code §801 gatekeeping) |
| Sufficiency of evidence for four future shoulder surgeries | Four surgeries are reasonably certain based on Dr. Norris’s opinion and life‑care plan | Only one future surgery is reasonably certain; additional three revisions speculative | Substantial evidence supports four future surgeries when viewing Dr. Norris’s opinion, life‑care planner’s report, and expert economist testimony favorably to plaintiff |
| Use of preliminary urine drug screen as basis for impairment opinion | N/A (plaintiff opposed admission) | Preliminary screen plus symptoms suffice to infer active THC and impairment | Preliminary screen without confirmation of active metabolite and no reliable linkage to impairment is insufficient foundation for expert opinion |
| Admissibility/hearsay of life‑care plan and related testimony | Life‑care plan and expert testimony supply physician statements about needed surgeries | Hearsay/statements repeating Dr. Norris cannot prove case‑specific facts | Hearsay objection was forfeited; multiple hearsay admissible here and, together with Dr. Norris’s testimony, provided substantial evidence to support future surgeries |
Key Cases Cited
- Sargon Enterprises, Inc. v. University of Southern Cal., 55 Cal.4th 747 (expert opinion must have reasonable basis; trial court gatekeeper)
- Garcia v. Duro Dyne Corp., 156 Cal.App.4th 92 (future damages recoverable when reasonably certain)
- Rivard v. Board of Pension Commissioners, 164 Cal.App.3d 405 (substantial evidence standard on appeal)
- People v. Sanchez, 63 Cal.4th 665 (expert relating case‑specific out‑of‑court statements raises hearsay concerns)
- Lockheed Martin Corp. v. Superior Court, 29 Cal.4th 1096 (expert testimony does not always constitute substantial evidence)
- Regalado v. Callaghan, 3 Cal.App.5th 582 (jury may find future surgery reasonably certain based on expert evidence)