Bayter v. Eckersley
| Decision Date | 09 September 2014 |
| Docket Number | B239831 |
| Court | California Court of Appeals Court of Appeals |
| Parties | OMAR BAYTER, Plaintiff and Appellant, v. WENDY ECKERSLEY, Defendant and Appellant. |
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. EC050750)
APPEAL from a judgment of the Superior Court of Los Angeles County, David Milton, Judge. Affirmed.
The Yarnall Firm and Delores A. Yarnall; Martinian & Assoc., Inc., and Tigran Martinian for Plaintiff and Appellant.
Mark R. Weiner & Associates and Kathryn Albarian for Defendant and Appellant.
After judgment was entered in favor of plaintiff and appellant Omar Bayter in his negligence action against defendant and appellant Wendy Eckersley, the trial court denied Bayter's motion for a new trial. Bayter contends he is entitled to a new trial on his damages due to errors at trial regarding the presentation of evidence regarding those damages. Eckersley has filed a protective cross appeal, arguing that if a new trial is granted, it should encompass the issue of liability because the trial court improperly denied her request for instructions on comparative negligence. We reject Bayter's contentions of error, thus rendering it unnecessary for us to address Eckersley's cross appeal. We therefore affirm.
On August 20, 2009, Bayter initiated the underlying action for negligence and negligence per se against Eckersley. His complaint alleged that on March 7, 2008, as he was driving on Scott Road in Burbank, Eckersley negligently drove her car out of a parking garage and collided with his car. The complaint further alleged that Eckersley's conduct caused physical, emotional, and financial injury to Bayter.
Bayter testified that on March 7, 2008, he was driving to work along Scott Road. After slowing for some construction work, he began to resume his speed when a car driven by Eckersley suddenly appeared and struck his vehicle. Bayter could not avoid the collision. He immediately felt a twisting of his spine and pain, but declined an invitation from paramedics to be taken to an emergency room because he lacked medical insurance.
After experiencing severe headaches and back pain, he saw a chiropractor, who recommended various treatments. In addition, Bayter tried "self treatment" for his pain. When his pain persisted, he saw Dr. Roy Simon, a physician who had used epidural injections to treat a spinal disc herniation that Bayter suffered in a car accident in 2007. After Simon concluded that the same treatment would be ineffective for Bayter's back injuries following the March 2008 accident, Bayter underwent back surgery in October 2010.
Bayter testified that prior to his 2007 accident, he had no significant back problems, although he had been in several minor car accidents and briefly underwent therapy for a strained back in 2000. Following the 2007 accident, Bayter suffered back pain, but Simon's treatment largely eliminated his pain by the end of 2007. After the March 2008 accident, Bayter's back pain made the pain he felt in 2007 seem like "child's play." He had great difficulty performing ordinary functions, such as walking, sitting for lengthy periods, and running. Although surgery relieved some of his pain, Bayter remained unable to run, play contact sports, and dance.
During cross-examination, Bayter testified that in August 2009, he began to walk with a limp. Following that testimony, defense counsel played for the jury a so-called "sub rosa" surveillance video recording dated September 1, 2010, prior to Bayter's surgery. The video recording, taken without Bayter's knowledge, showed him walking with no apparent difficulty and without a limp.
Eckersley testified that on March 7, 2008, she drove out of the parking garage of her residence, stopped on the driveway entrance to Scott Road, and looked to her left for oncoming traffic.1 When she made a right turn onto ScottRoad, Bayter's car hit her car. According to Eckersley, she never saw Bayter's car before the collision. She told Burbank Police Department Officer Randy Lloyd, the investigating officer, that a parked truck blocked her view of Scott Road to the left of the driveway, and later challenged a citation issued to her on the ground that the collision was due to a lack of visibility where the driveway met Scott Road, rather than to wrongdoing on her part.
In interrogatory responses, Eckersley denied that she was "at fault" for the collision. At trial, she initially asserted that Bayter had been negligent, stating that she would have seen his car had he not been speeding. Later, she denied "liability" for the collision, but said that she was "the sole party responsible for the accident." She also acknowledged that her challenge to the citation was unsuccessful.
Officer Lloyd testified that the damage to Bayter's car was inconsistent with a low speed departure from the parking garage. Eckersley told Lloyd that a parked truck had obscured her view of the street to her left. He issued a citation to Eckersley for failing to yield the right of way upon entering a public street (Veh. Code, § 21804, subd. (a)).
Ronald Stone and Ana Rodriguez testified that they knew Bayter prior to the March 2008 accident. According to Stone and Rodriguez, before the collision, Bayter manifested no inability to walk or get around, but after it, he appeared to find walking difficult due to back problems.
Bayter offered expert testimony to establish that the March 2008 accident caused significant injury to him, including serious injury to his spine. Kenneth Solomon, an expert in accident reconstruction, opined that Eckersley caused the collision, that Bayter was travelling less than 30 miles per hour when it occurred, and that the forces it created were sufficient to cause the physical injuries that Bayter claimed. Solomon offered no opinion regarding how fast Eckersley's car was moving when it collided with Bayter's car.
Dr. Roy Simon testified that in July 2007, he diagnosed Bayter as suffering from a herniation to his "L-5 S-1" spinal disc due to a car accident. He treated Bayter with epidural injections, which significantly reduced Bayter's pain. In January 2008, Simon discharged Bayter from his care, with the recommendation that Bayter engage in physical therapy, if necessary, and see a physician every four months to obtain medications. According to Simon's discharge report, Bayter manifested a seven millimeter herniation to his disc that might require surgery in the future.
Dr. Simon further testified that in June 2008, he again saw Bayter, who complained regarding back pain. He reviewed an MRI, which disclosed an eight to nine millimeter herniation on Bayter's L-5 S-1 disc. Because Simon did not believe that epidural injections would be effective to treat the herniation, he referred Bayter to a spine surgeon. Simon opined that the March 2008 accident caused the herniation he discovered in June 2008.
Dr. David Payne testified that he performed spinal surgery on Bayter in October 2010. Payne first saw Bayter in June 2010. Following an examination of Bayter and his medical records, Payne concluded that Bayter had suffered a significant injury in the March 2008 accident that resisted nonsurgical treatment. At trial, Payne opined that the March 2008 accident caused spinal injuries beyond those from the 2007 accident. He also opined that the medical expenses Bayter incurred following the March 2008 accident -- which totaled $380,671.38 were for necessary and reasonable treatment.
Robert Johnson, a forensic economist, estimated that Bayter's lost wages (adjusted to present value) totaled $715,197. He further opined that the costs of Bayter's "life care plan" -- the medical treatment he would need in the future toaddress his back problems flowing from the March 2008 accident -- totaled $349,775 (adjusted to present value).2
Dr. Stephen Rothman, a neuroradiologist, testified that he had examined Bayter's MRI scans following his 2007 and March 2008 accidents. Rothman opined that after the 2007 accident, Bayter displayed a degenerative disc, that is, a protruding "worn" disc likely to worsen over time. He furthered opined that there was no material change in that disc following the March 2008 accident. According to Rothman, a significant herniation in the disc first appeared in an MRI scan taken in August 2009. At the time, there was a hole in the disc, and a portion of the disc which Rothman likened to a "lump of jelly" -- had been ejected from it.
Dr. Robert Wilson, an orthopedic surgeon, testified that car accidents rarely cause disc protrusions, and that the vast majority of them result from "genetics'" He opined that the one millimeter difference between Bayter's herniation, as disclosed by the MRI scans taken before and after the March 2008 accident, was "meaningless," as spinal discs ordinarily fluctuate "day by day." During cross-examination, in response to hypothetical questions, he also opined that the forces Bayter experienced in the March 2008 accident were unlikely to have caused a disc herniation.
Marcela Ramirez testified that she was the controller for Regent Global Sourcing, which hired Bayter in February 2008 to assist with accounts receivable. According to Ramirez, he was a slow worker whose tempo did not improve withtraining. Although Ramirez knew of the March 2008 accident, Bayter never told her that it interfered with his work. In April 2008, she discharged him.
Following the presentation of evidence, the trial court rejected Eckersley's...
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