Stokes
BACKGROUND
Our overview of the facts is brief, and we will discuss additional background facts as necessary to resolving the issues on appeal.
On March 28, 2013, Muschinske was driving a pickup truck towing a horse trailer loaded with equipment when he rear-ended Stokes's car. Prior to trial, Muschinske stipulated to liability for the accident but disputed the causation, nature, and extent of Stokes's injuries and damages.
After a lengthy trial consisting largely of testimony on causation and damages from numerous medical and other experts, the parties proposed two
After two hours of deliberation with one 15-minute break, the jury awarded Stokes $ 560,537.51 in damages, which was mostly-though not entirely-in line with the amounts requested by Muschinske. The breakdown and juror count for each portion of that award was as follows: $ 26,806.51 in past medical expenses (12-0); $ 255,000 in future medical expenses (10-2); $ 13,731 in past lost earnings (12-0); $ 15,000 in future lost earnings (11-1); $ 100,000 in past non-economic damages (12-0); and $ 150,000 in future non-economic damages (12-0). The jury awarded Patricia $ 50,000 on her claim (10-2). The jury also found Muschinske did not act with malice, precluding an award of punitive damages. Judgment was entered on the verdict.
Stokes moved for a new trial on several grounds, including the two grounds he raises on appeal. The court denied the motion. Stokes appealed.
DISCUSSION
I. The Trial Court's Finding of No Misconduct by Juror No. 11 Was Supported by the Record
Stokes argues that Juror No. 11,
A. Procedural Background
Juror No. 11 was not called into the jury box until the second day of voir dire. On the first day, all prospective jurors were sworn to answer questions accurately and truthfully under penalty of perjury. Presumably, Juror No. 11 was in the court room at that time.
The issue of prior lawsuits came up on the first day. One juror said he had "a real problem" because he had "been sued twice
On the second day, Juror No. 11 was called into the box. He was the CEO of a company involved in overnight sleep testing for sleep disorders, and he had no jury experience. He affirmed he could be fair and impartial. He stated that he had a "big problem" with the time commitment for the trial, but in his view, "[i]t's not a problem that you're going to accept as valid in this situation."
As questioning of prospective jurors continued, Juror No. 11 affirmed he was willing to keep an open mind. At one point, he said, "I don't want to be here," but again said he would be fair and impartial. When Stokes's counsel asked if he would "be okay with following the law regardless of who the defendant is," Juror No. 11 responded affirmatively. Stokes's counsel asked him if he owned his company, and he said no.
Stokes's counsel directed the immediate next question to the entire panel: "Have any of the potential new jurors been sued?" No hands were raised.
Muschinske's counsel later questioned Juror No. 11, and he once again affirmed he could follow the law and keep an open mind, including following the law on liability and damages. He was then asked, "Is there anything about experiences in business or otherwise that would be important for us to know about as it relates to you being a trial juror in a case like this?" He responded, "No." Juror No. 11 was not directly questioned again during jury selection.
Apparently, the jury selection process dragged on, prompting the court to note, "[T]his is the brutal truth, you're exhausting these jurors." One of Stokes's counsel said, "I know." The court noted Juror No. 11 "is about ready to jump through the front of the jury box" and another juror "looked very frustrated." Juror No. 11 became a member of the jury and eventually became the foreperson.
After the jury rendered its verdict, Stokes moved for a new trial, arguing Juror No. 11 intentionally lied during voir dire by concealing the fact that he had been named as a defendant in two lawsuits, including one case presided over by the trial judge who presided over the trial in this case. In support of the motion, Stokes requested judicial notice of the dockets and proofs of service in the two cases in which Juror No. 11 was named as a defendant.
The second case was filed on July 23, 2010 and involved medical negligence. Juror No. 11 was not initially named as a defendant, and was substituted as a "Doe"
Also in support of the new trial motion, Stokes submitted his counsel's declaration, which attached evidence of Juror No. 11's advanced educational background and employment in senior positions in the healthcare industry, as well as an article discussing the impact a jury foreperson may have on deliberations.
Muschinske opposed the motion, arguing there was no evidence that Juror No. 11 was biased and, even if he had committed misconduct, there was no indication of any prejudice. Muschinske submitted declarations from three other jurors stating that they had heard no juror, including Juror No. 11, express any thought or opinion about prior lawsuits in which they were involved.
At the hearing on the new trial motion, the court announced a tentative decision to deny the motion as it related to Juror No. 11's alleged misconduct. The court outlined the three analytical steps required to rule on the issue: (1) whether "affidavits in support of the motion" are admissible; (2) whether the evidence establishes misconduct; and (3) whether the misconduct was prejudicial.
The court continued: "The next inquiry the court must do, second, if evidence is admissible, the trial court must then determine whether the facts established misconduct of anybody in here. And what I've looked at is-I've just gone through each of these elements to make sure any-if any of them exist to determine whether it is a basis for the motion. So I'm doing these things just prophylactically.
"But assuming those declarations are admissible, which I'm not sure they are, as a matter of fact I'm ordering that they're not, but if they are, if the evidence is admissible a court must make a determination whether the fact established misconduct or other things. I just don't see it.
"Lastly. Finally, assuming misconduct occurred, and that's where I'm going now, was there some kind of misconduct or something happened in this trial, whether this misconduct was prejudicial to the findings, I just don't see it."
Stokes argued Juror No. 11 "blatantly lied" about the lawsuits and Muschinske offered no evidence to rebut the presumption of prejudice. Muschinske suggested Stokes should have discovered any misconduct during trial, and there was no evidence to indicate Juror No. 11 intentionally concealed the prior lawsuits. In Muschinske's view, the questions during voir dire "did not elicit the type of responses
In response to these arguments, the court again referred to Stokes's declarations, and Stokes pointed out that he did not submit juror declarations. The court responded, "That's what I'm getting at. That's the problem. Your declarations are what support your motion, correct?" Stokes responded, "Yes. So I misunderstood the court regarding the juror declarations that the defense has provided."
The court recognized that juror misconduct generally raises a rebuttable presumption of prejudice, but found that the record rebutted the presumption here. In particular, the court noted that the accident "looked horrible," but
The court adopted its tentative and denied the motion. The court did not expressly rule on Stokes's request for judicial notice.
B. Analysis
"A verdict may be vacated, in whole or in part, on a motion for a new trial because of juror misconduct that materially affected the substantial rights of a party. ( Code Civ. Proc., § 657, subd. (2).) A party moving for a new trial on the ground of juror misconduct must establish both that misconduct occurred and that the misconduct was prejudicial." ( Ovando v. County of Los Angeles (2008)
On appeal, the parties raise myriad issues related to all three steps. We conclude the record supported the trial court's finding of no misconduct, which is dispositive, so we do not address any other issues. (See Barboni, supra,
"One form of juror misconduct is a juror's concealment of relevant facts or giving of false answers during a voir dire examination." ( Ovando, supra,
"On review from a trial court's 'determin[ation of] whether misconduct occurred, "[w]e accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence." ' " ( Barboni, supra,
The evidence amply supported the trial court's implied finding that Juror No. 11 did not intentionally conceal the prior lawsuits. For the medical negligence lawsuit, the evidence supported a reasonable inference that Juror No. 11 either did not know or did not recall that he was named as an individual defendant or that the same trial judge presided over the case. There was no evidence he was served with the complaint. The proof of service Stokes submitted was not for Juror No. 11 individually, but for a corporate defendant for whom Juror No. 11 was agent for service of process. Juror No. 11 was a party for only about four months, during which time no substantive hearings were held.
For the lawsuit involving breach of the stock purchase agreement, the evidence showed that Juror No. 11 was served with the complaint, but no substantive hearings were held over the course of 15 months, and the case was dismissed six years prior to voir dire in the instant case. There was no indication Juror No. 11 was actively involved at any point. Again, the trial court could have reasonably inferred that Juror No. 11 simply did not recall the lawsuit, so his failure to disclose it was unintentional.
Further undermining any suggestion of intentional concealment, Juror No. 11 was never directly asked about any prior lawsuits. On the first day of voir dire, the topic of prior lawsuits arose, but Juror No. 11 was not in the jury box. During his questioning on the second day, Juror No. 11 was
Given Juror No. 11's apparent minimal involvement in the prior cases and his
Stokes suggests that Muschinske's failure to offer affidavits to specifically counter his showing of Juror No. 11's alleged intentional concealment required the trial court to deem the misconduct established. He cites the statement in Tapia that, "[w]here no affidavits or declarations are introduced to counter the evidence of jury misconduct proffered on a new trial motion, the acts are deemed established, and the only issue is whether they are harmful or prejudicial." ( Tapia, supra,
Stokes's remaining arguments ignore our deferential standard of review. "On appeal, we must accept the trial court's findings if supported by substantial evidence." ( Barboni, supra,
Stokes contends the trial court allowed Muschinske to violate the collateral source rule multiple times during trial through references to Stokes's past treatment at Kaiser Permanente and Kaiser medical insurance, as well as references to Medicare and Social Security disability benefits in relation to future medical expenses. We disagree.
The collateral source rule generally provides that " 'if an injured party receives some compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor.' " ( Howell v. Hamilton Meats & Provisions, Inc. (2011)
Stokes does not contend that the trial court erroneously admitted evidence of any specific past collateral payments by Kaiser insurance or anticipated future collateral payments from Medicare or Social Security. Nor does he contend that any of Muschinske's experts deducted any past or future collateral payments to calculate damages, or that Muschinske argued that the jury should make any such specific deductions. His argument is more generalized: he claims mere reference to these entities led the jury to infer that he either had received collateral payments in the past or would receive collateral payments in the future, thereby prompting the jury to reduce his damages accordingly.
Stokes's argument is based on the court's alleged erroneous admission of evidence, so we review the court's rulings for abuse of discretion. ( Uspenskaya v. Meline (2015)
Stokes's argument is based on the following parts of the record. Stokes had health insurance through Kaiser Permanente, and for six months after the accident, he received treatment from healthcare professionals at Kaiser facilities. Before trial, he filed a motion in limine to preclude any use at trial of the names "Kaiser" and "Kaiser Permanente" on the theory that the "vast majority of potential jurors throughout Southern California ... know that the nature of the Kaiser business model is that nobody treats at Kaiser unless they have Kaiser insurance." He feared his treatment at Kaiser facilities would necessarily reveal that he had medical insurance, in derogation of the collateral source rule. In opposition, Muschinske argued that he should be allowed to "discuss where [Stokes] received his treatment, especially with those instances where [he] was examined and no injury was found." The court tentatively denied the motion and allowed the use of the term "Kaiser" but directed the parties not to refer to "Kaiser insurance."
"Q. Mr. Stokes is 65 years old?
"A. That's my understanding, yes.
"Q. He's eligible for Medicare?
"[Stokes's counsel]: Objection, your honor. Collateral source.
"The court: Overruled.
"[Stokes's counsel]: Your honor, may we approach?
"The court: No.
"The witness: That would be typical at age 65.
"[¶] ... [¶]
"Q. Mr. Stokes is a member of Kaiser?
"A. I don't know that to be the case at this juncture. I think he was in the past. I don't know what the current status is."9
The next day of trial, Stokes filed a motion to strike any reference to future availability of Medicare benefits, to preclude any further references to Medicare pursuant to the collateral source rule, and to instruct the jury not to consider future Medicare benefits in assessing costs of future care. After discussing the law on collateral sources at length, the court did not see a need to rule on the motion at that time, effectively denying it.
Medicare came up again during the cross-examination of Stokes's wife Patricia. She testified on direct examination that she and Stokes did not currently have insurance. Muschinske asked her a series of questions on
Medicare was mentioned again during testimony from Muschinske's expert rehabilitation consultant, who testified to his opinions on Stokes's future care needs. He testified that one item of cost for Stokes's future care would be a case manager to work with Stokes two to four hours a month for the rest of his life expectancy. Over Stokes's objections based on the collateral source rule and other grounds, the witness explained that "the case manager looks for resources to help the individual, especially if they have some needs that cost money which they don't have. So we look at, for instance, Medicare to see: What does it cover? How do we document the needs? [¶] Sometimes Medicare turns something down because we-they don't have the proper documentation. Or, if there's other services someone has, other medical services available to them. The case manager can tap into them. [¶] If there's community resources; tap into those. If there's counseling or mental health counseling or services like that adjustment counseling; we want to tap into those." The witness also noted, "Medicare is an example of service that could be provided to an individual. So if someone has Social Security disability, SSDI for 24 months, they'd be eligible for Medicare."
Turning to Stokes's claim of error, most of these references to Kaiser and Medicare, as well as the single reference to Social Security, merely provided context and background information on Stokes's past treatment at Kaiser and on some aspects of Muschinske's experts' calculation of past and future reasonable medical expenses. They were helpful and even necessary to the jury's understanding of the issues. Stokes has not shown the court abused its discretion in admitting these references to assist the jury's understanding of the facts.
A few references arguably did approach the line between permissible background information and reference to collateral sources. For example, the questions posed to Stokes's life-care planner implicated payments by Medicare and Kaiser insurance. The cross-examination of Stokes's wife also referenced Medicare coverage. Yet, even if we assume Stokes has shown the trial court should have excluded some or all of these references, his claim of prejudice is based entirely on speculation.
For the references to Kaiser, we can accept that lay jurors in Southern California might have inferred Stokes had Kaiser insurance that may have covered his past treatment. But Stokes does not suggest there was evidence of any specific insurance payments, and there is nothing to suggest the jury
Stokes has identified nothing to suggest that Muschinske's expert considered any insurance or other collateral payments in conducting this analysis. In fact, Stokes's wife testified on direct examination that Stokes has to "reimburse every dollar that Kaiser has paid for his care." The court
Likewise, for the Medicare references, Stokes does not point to any evidence of deductions for specific future Medicare payments, and nothing suggests the jury subtracted unidentified future Medicare coverage in assessing future medical expenses. The jury awarded $ 255,000 for future medical expenses, which was almost $ 85,000 more than Muschinske's proposed amount of $ 170,582, suggesting the jury carefully considered the competing expert testimony on the issue of reasonable future costs and arrived at a reasonable award.
Stokes claims it is "reasonably probable" that the jury discounted his requested future medical expenses of $ 5.77 million in light of future Medicare coverage, but he points to nothing in the record to support that conclusion. He also contends the jury's 10-2 verdict on this award shows prejudice because "only a mere two jurors who voted in the majority needed to have been influenced or confused" by the Medicare references. This is entirely speculative. It is equally possible that two jurors dissented because they believed he should have received no more than $ 170,582, the amount proposed by Muschinske.
Stokes also attempts to link together different aspects of Muschinske's experts' testimony to show the jury must have reduced his requested future medical expenses due to future Medicare payments. His argument goes: (1) Muschinske's expert rehabilitation consultant testified that a case manager would help Stokes look for resources like Medicare in the future. (2) Muschinske's expert on the reasonable cost of past care used a "benchmark"
We are not persuaded. No one argued this theory to the jury and no rational jury would have accepted it. The 98 percent figure forming the lynchpin of this theory did not relate to the proportion of costs covered by Medicare; it related to the proportion of physicians and medical providers who accepted Medicare payments. To argue that the jury would have used it to reduce his future medical costs by 98 percent is a non sequitur.
Finally, with regard to Social Security, the single vague reference by Muschinske's expert rehabilitation consultant could not have affected the jury's verdict. This one reference would not have allowed the jury to infer he would get Social Security payments in the future, and even if it could, there was no basis for the jury to somehow quantify those payments, then reduce his future medical expenses by that amount.
DISPOSITION
The judgment is affirmed. Respondent Muschinske is awarded costs on appeal.
We concur:
GRIMES, J.
WILEY, J.
Notes
Although Patricia Stokes asserted a separate loss of consortium claim, Stokes has raised no issues particular to her claim. We will refer to both of them in the singular for convenience and refer to Patricia by first name as context dictates.
In his opening brief on appeal, Stokes also argued the court wrongly denied a for-cause challenge to a prospective juror, but Stokes abandoned this claim in his reply brief. We do not address it.
That amount consisted of $ 26,806.51 in past medical expenses; $ 170,582 in future medical expenses; $ 13,731 in past lost earnings; $ 100,000 in past non-economic damages; and $ 150,000 in future non-economic damages.
We refer to this juror by number in order to preserve his privacy.
Stokes also cites Deward v. Clough (1966)
Stokes raised the collateral source issue in his new trial motion. The trial court did not discuss the issue at the hearing on the motion, but the court implicitly rejected Stokes's argument when it denied the motion.
Because the denial of this motion in limine was tentative, Muschinske contends Stokes did not preserve his objection to the Kaiser references at trial. (Evid. Code, § 353, subd. (a) [party must object to preserve claim of evidentiary error].) Muschinske also contends Stokes "opened the door" to the Kaiser references by also mentioning Kaiser during trial. Because we find no merit to Stokes's contention, we will assume he preserved the issue for appeal.
Stokes points out that Muschinske also stated in closing argument that "the only services that he's had out of a $ 5 million plan is some medication that he got at Kaiser, and he probably didn't even have to pay for it." But the court sustained Stokes's objection to this statement.
Stokes argues the denial of his counsel's request to approach the bench signaled to the jury that he was trying to hide future government benefit payments. Stokes ignores that the court instructed the jury not to "consider my granting or denying a request for a conference as any indication of my opinion of the case or of my view of the evidence." We presume the jury heeded this instruction. (Rufo v. Simpson (2001)
Muschinske's expert used the Medicare "allowable amount" and 130 percent of the Medicare allowable amount as methods to calculate reasonable value of past services. Stokes does not suggest the expert deducted any actual Medicare or other collateral payments in that calculation.