38 Cal. App. 5th 531
Cal. Ct. App. 5th2019Background
- In 2013 Pina was a passenger on a Los Angeles County jail bus that struck a pillar; County admitted negligence but disputed causation of Pina’s injuries.
- Pina initially denied injury, later treated with Dr. Gary Chen (orthopedist) and chiropractor Philemon Tam; Chen later opined the 2013 crash caused spinal pathology and recommended future surgery.
- Pina was in a separate 2016 bus accident (for which he sued MTA) and had a 2010 car-related injury; the County sought to use an MTA-retained orthopedist, Dr. Robert Wilson, who was not designated as an expert in this case.
- Trial court allowed Dr. Wilson to testify under CCP §2034.310(b) as impeachment, but Wilson gave broader contrary opinions (disputing causation and need for surgery) rather than strictly challenging foundational facts.
- Jury found County negligent and awarded $5,000 total; trial court denied new-trial motion on damages, awarded County costs and fees after post-trial motions, and entered judgment for County; Pina appealed.
- Court of Appeal held Dr. Wilson’s testimony exceeded permissible impeachment, found prejudice, reversed the verdict and remanded for new trial, vacating post-trial orders and the later judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admission of undesignated expert testimony (scope of impeachment) | Wilson exceeded permissible impeachment by offering contrary causation and surgery-opinion testimony | Wilson was permissible to rebut late-disclosed surgical claim and respond to expert evidence | Court: Admission exceeded scope of CCP §2034.310(b); error was prejudicial; reverse and remand |
| Sufficiency/admissibility of evidence of prior 2010 accident for impeachment | 2010 incident was not disclosed in discovery and should be excluded | 2010 accident relevant for impeachment of Pina’s failure to disclose prior injuries; County sufficiently identified Pina as victim | Court: Evidence admissible for impeachment; exclusion not required absent willfulness or court order violation |
| Jury instruction/closing argument on burden of proof for causation | Objected that County misstated law regarding burden to prove contributing/superseding causes | County argued plaintiff must prove injuries were caused by 2013 accident | Court: No reversible error; counsel permissibly highlighted plaintiff’s burden to prove causation; presumed jury followed instructions |
| Trial court’s post-trial costs/fees and §1021.7 award | Challenge to award of prevailing-party costs/attorney fees and deductions under §998 | County sought prevailing-party costs, fees under §998, §1032, and §1021.7 for dismissed claim | Court reversed judgment on verdict and vacated post-trial orders; did not reach merits of all fee issues because remand required |
Key Cases Cited
- Kennemur v. State of California, 133 Cal.App.3d 907 (Cal. Ct. App. 1982) (limits impeachment by undesignated experts to falsity or nonexistence of foundational facts; bars contrary-opinion disguise)
- Sargon Enterprises, Inc. v. University of Southern California, 55 Cal.4th 747 (Cal. 2012) (standard of review for expert-evidence rulings; abuse of discretion analysis)
- Collins v. Navistar, Inc., 214 Cal.App.4th 1486 (Cal. Ct. App. 2013) (affirming exclusion where undesignated expert opined opposing expert’s methodology/statistics were unreliable)
- Mizel v. City of Santa Monica, 93 Cal.App.4th 1059 (Cal. Ct. App. 2001) (excluding undesignated-expert testimony that effectively contradicted opposing expert’s scientific conclusions)
- Howard Contracting, Inc. v. G.A. MacDonald Constr. Co., 71 Cal.App.4th 38 (Cal. Ct. App. 1998) (impermissible contrary expert opinions vs permissible challenges to foundational calculations)
- Fish v. Guevara, 12 Cal.App.4th 142 (Cal. Ct. App. 1993) (distinguishing permissible impeachment of foundational facts from forbidden contrary expert opinion)
- Wilson v. Southern California Edison Co., 21 Cal.App.5th 786 (Cal. Ct. App. 2018) (reversible error standard for prejudicial admission of evidence)
- In re Richards, 63 Cal.4th 291 (Cal. 2016) (definition of reasonable probability for prejudice standard)
- Liodas v. Sahadi, 19 Cal.3d 278 (Cal. 1977) (remedy principles; when remand for new trial is appropriate on causation-central error)