Audish v. Macias

• Docket Number: D081689
• Decision Date: 21 May 2024
• Citation: Audish v. Macias, 321 Cal.Rptr.3d 635 (Cal. App. 2024)
• Parties: David AUDISH, Plaintiff and Appellant, v. David MACIAS et al., Defendants and Respondents.
• Court: California Court of Appeals

321 Cal.Rptr.3d 635

David AUDISH, Plaintiff and Appellant,

v.David MACIAS et al., Defendants and Respondents.

D081689

Court of Appeal, Fourth District, Division 1.

Filed May 21, 2024

APPEAL from a judgment of the Superior Court of San Diego County, Keri G. Katz, Judge.Affirmed.(Super. Ct.No. 37-2018-00017566-CU-PA-CTL)

Rejali Law Firm and Omid Rejali, San Diego, for Plaintiff and Appellant.

Fitzgerald Kreditor Bolduc Risbrough and Robert C. Risbrough for Defendants and Respondents.

McCONNELL, P. J.

IINTRODUCTION

PlaintiffDavid Audish appeals a civil judgment entered after the rendition of a jury verdict in an automobile collision case.The jury found Audish and defendantDavid Macias both operated their vehicles negligently and each party’s negligence was a substantial factor in causing harm to Audish.The jury found Audish suffered $65,699.50 in damages, including $29,288.94 for past medical expenses, $3,620 for past non-economic losses, and $32,790.56 for future medical expenses, and it assigned each party 50 percent of the responsibility for these losses.

On appeal, Audish contends the trial court abused its discretion by admitting evidence that he would have Medicare medical insurance at the age of 65.He also argues the jury returned an impermissible compromise verdict and erred by failing to award him damages for future non-economic losses.We reject these claims and affirm the judgment.

IIBACKGROUND

A.Factual Background

On November 2, 2017, Audish drove his vehicle westbound on a major San Diego thoroughfare.He drove his vehicle at a speed of 55 miles per hour and the speed limit was 45 miles per hour.Meanwhile, Macias drove a vehicle owned by his father, Juan Macias(Juan), northbound on a street that intersected with the thoroughfare.Macias made an illegal lefthand turn from the intersecting street across the thoroughfare’s eastbound traffic lanes and onto its westbound traffic lanes.The parties’ vehicles collided.

Audish suffered a mild concussion and reported experiencing anxiety, insomnia, light sensitivity, fatigue, headaches, neck pain, nausea, loss of balance, vomiting, dizziness, brain fog, and memory loss after the accident.A CT scan did not show that he suffered from internal bleeding, swelling, or a skull fracture.However, his physician prescribed him an antinausea medi- cation and an antidepressant medication to treat his concussion-related symptoms.

B.Procedural Background

In April 2018, Audish and his wife filed suit against Macias and Juan for negligence, negligent entrustment, and loss of consortium.

After a trial, the jury returned a special verdict finding Audish and Macias were both negligent in the operation of their vehicles (by votes of 11–1), Macias’ negligence was a substantial factor in causing Audish to suffer harm (by a vote of 9–3), and Audish’s negligence was a substantial factor in causing his own harm (by a vote of 12–0).The jury found Audish had $29,288.94 in past medical expenses (by a 12–0 vote), $0 in past lost earnings (by an 11–1 vote), and $3,620 in past non-economic losses (by an 11-1 vote).It found he would have $32,790.56 in future medical expenses (by a 10–2 vote), $0 in future non-economic losses (by an 11–1 vote), and $0 in future lost earnings (by a 12–0 vote).Further, it found Audish’s wife did not sustain a loss of consortium (by a 12–0 vote).The jury assigned Audish and Macias each 50 percent of the responsibility for these losses (by a 12–0 vote).¹

Audish moved for a partial new trial on the issue of damages.He claimed the evidence was insufficient to support the jury’s findings that he had no past or future lost earnings.He also argued the verdict was contrary to law because there was an alleged inconsistency between the jury’s finding that he would incur future medical expenses and its finding that he would not suffer any future non-economic losses.Belatedly, he argued the purportedly inadequate damages award reflected an impermissible compromise verdict.The trial court denied the motion for a partial new trial and entered judgment in accordance with the verdict.

[1] Audish appeals the judgment.²

IIIDISCUSSION

A.The Trial Court did not Err By Admitting Medicare-Related Evidence

Audish argues the trial court violated the collateral source rule by admitting evidence that he would have Medicare insurance at age 65.As we will explain, we discern no error in the court’s evidentiary rulings.

1.Additional Background

Prior to trial, Audish filed a motion in limine that sought to preclude the admission of evidence that he had, or would have, medical insurance.Audish did not include the motion in limine in the appellate record, so we cannot describe its contents with specificity.However, at a pretrial hearing, the trial court stated that the motion sought "to preclude any mention of the availability of healthcare coverage after the accident."The court granted the motion in part, and denied it in part, reasoning that an expert witness with a proper foundation could testify about the reasonable value of medical care based on the rates insurers pay for medical treatments.

On the fifth day of the six-day trial, Brook Feerick, a nurse and life-care planner, testified as a witness on Audish’s behalf.She prepared a life-care plan for Audish, which compiled and summarized the types and costs of the medical treatments Audish’s medical professionals recommended for him due to the automobile accident.She calculated the average costs for each medical treatment by relying primarily on three sources—a textbook called the Physician’s Fee Reference, a textbook called National Fee Analyzer, and an online database called Fair Health.Based on these sources, Feerick estimated Audish’s total future medical costs would be $1,417,146.

On cross-examination, Feerick stated that she based her cost estimates on the average amounts medical providers charged patients for their medical treatments, not the negotiated (and often discounted) amounts insurers actually pay providers for the treatments.Thereafter, defense counsel asked Feerick whether Audish would be eligible for Medicare at age 65 and, over a relevance objection that the trial court overruled, she replied, "I assume so."Then, after another overruled relevance objection, Feerick agreed with defense counsel that her estimates did not account for "what Medicare would pay …. "She also admitted insurers sometimes pay less for medical treatments than the amounts health care providers bill for them.

2.Analysis

[2]Audish challenges the evidentiary rulings allowing Feerick to testify that she"assume[d]"he would be eligible for Medicare at age 65, her future medical cost estimates did not account for the amounts Medicare would actually pay for the medical treatments recommended by his medical professionals, and insurers sometimes pay less for medical treatments than the amounts health care providers charge for them.Although Audish does not explicitly refer to the collateral source rule, he effectively argues the trial court violated the rule by allowing evidence that Medicare would pay at least a portion of his future medical expenses, which supposedly encouraged the jury to reduce his overall award of future medical expenses.

[3–5]"A trial court’s evidentiary ruling is reviewed for abuse of discretion.[Citations.]A trial court abuses its discretion if its ruling exceeds ‘ " ‘the bounds of reason, all of the circumstances before it being considered.’ " ’[Citation.]‘ " ‘A decision will not be reversed merely because reasonable people might disagree.’ " ’ "(Jones v. Solgen Construction, LLC(2024)99 Cal. App.5th 1178, 1188–1189, 318 Cal.Rptr.3d 313;seeburner v. American Golf Corp.(2023)97 Cal.App.5th 121, 138, 315 Cal. Rptr.3d 148["An abuse of discretion occurs only if ‘ "the trial court’s decision exceeds the bounds of reason and results in a miscarriage of justice." ’ "].)

We have considerable doubts that Audish preserved his challenge to the trial court’s evidentiary rulings, as he has failed to include his motion in limine in the record and he asserted only relevance objections—not objections for alleged violations of the collateral source doctrine—to some (albeit not all) of the questions the defense posed to Feerick.However, assuming without deciding that Audish has preserved his challenge for our consideration, we conclude the trial court did not violate the collateral source rule, or otherwise abuse its discretion, in allowing Feerick’s brief testimony about Medicare. [6–8]"The collateral source rule states 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.’[Citation.]Put another way, ‘Payments made to or benefits conferred on the injured party from other sources [i.e., those unconnected to the defendant] are not credited against the tortfeasor’s liability, although they cover all or a part of the harm for which the tortfeasor is liable.’[Citation.]The rule thus dictates that an injured plaintiff may recover from the tortfeasor money an insurer has paid to medical providers on his or her behalf."(Howell v. Hamilton Meats & Provisions, Inc.(2011)52 Cal.4th 541, 551, 129 Cal.Rptr.3d 325, 257 P.3d 1130(Howell).)

In Howell,the Supreme Court considered the issue of whether a tort plaintiff is entitled to recover from a tortfeasor-defendant, as damages for past medical expenses, the full and undiscounted amount the plaintiff’s health care provider billed for the medical services it rendered to the plaintiff or, alternatively, whether recovery must be limited to the discounted rate the health care provider accepted as payment for the medical services it rendered pursuant to a negotiated agreement with the plaintiff’s insurer.(Howell, supra,52 Cal.4th at p. 548, 129 Cal.Rptr.3d 325, 257...