Greer v. Buzgheia

• Decision Date: 05 July 2006
• Docket Number: No. C049444.,C049444.
• Court: California Court of Appeals Court of Appeals
• Parties: James Robert GREER, Plaintiff and Respondent, v. Hossam Ali BUZGHEIA, Defendant and Appellant.

46 Cal.Rptr.3d 780

141 Cal.App.4th 1150

James Robert GREER, Plaintiff and Respondent, v. Hossam Ali BUZGHEIA, Defendant and Appellant.

No. C049444.

Court of Appeal, Third District.

July 5, 2006.

Certified for Partial Publication.^*

Shea Stokes & Carter, Shirley A. Gauvin, Julissa Robles, San Diego; Trimble, Sherinian & Varanini and Suzanne M. Trimble, Sacramento, for Defendant and Appellant.

Dreyer Babich Buccola & Callaham, Roger A. Dreyer, Christopher W. Wood, and Stephen F. Davids, Sacramento, for Plaintiff and Respondent.

BUTZ, J.

Defendant Hossam Ali Buzgheia appeals from a judgment and order denying judgment notwithstanding the verdict (JNOV)¹ after a jury awarded plaintiff James Robert Greer, a total of $321,500 in damages arising from an automobile accident.

Defendant seeks a new trial or a reduction in the judgment on the following grounds: (1) the trial court erred in denying defendant's motion in limine to exclude evidence of the amount of medical costs billed to plaintiff in excess of those actually paid; (2) the trial court should have granted a posttrial reduction of the damage award to reflect a compromise of plaintiff's medical bills; (3) the trial court committed prejudicial error in limiting the testimony of plaintiff's accident reconstruction expert; and (4) the court abused its discretion in permitting plaintiff to call an undesignated medical expert.

Finding no reversible error, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff was injured when defendant's pickup truck ran a red light and collided with plaintiff's pickup truck as plaintiff was making a U-turn on Folsom Boulevard in Sacramento. Soon after the accident, plaintiff complained of low back pain with radiation to his spine and hips. Plaintiff attempted to return to his job as a DSL² lineman for SBC Advanced Solutions, Inc. (SBC) but could not perform his duties without experiencing severe pain.

One year after the accident, plaintiff returned to work part time with the aid of pain injections, but this was unsuccessful, and his doctor declared him unable to return to work at his former occupation.

Two MRI scans, taken about 15 months apart, revealed that plaintiff had suffered a degenerative disk disruption or tear, with accompanying nerve damage. When the pain did not significantly subside, plaintiff underwent spinal fusion surgery whereby the damaged disk tissue at the L5-S1 spinal segment was removed and replaced with bone material.

Plaintiff filed a personal injury complaint against defendant. Plaintiff's employer, SBC, filed its own complaint to recover approximately $30,000 in medical and disability benefits it paid on plaintiff's behalf. The two actions were consolidated by stipulation.

Shortly before the commencement of trial, SBC assigned all of its rights to plaintiff and filed notice that it would not be participating in the trial.

The most hotly disputed issue at trial was whether the severe back problems plaintiff experienced after the accident were attributable to it. Plaintiff presented expert medical testimony that, while he may have had some preexisting spinal degeneration, his current condition was directly related to the trauma he suffered as a result of the accident. Defendant's medical expert testified that plaintiff "may have had a low back strain related to the initial accident," which usually heals in a few months, but that there was no objective explanation for his symptoms and that he was not a surgical candidate. The defense also presented the testimony of Winthrop Smith, Ph.D., an expert in accident reconstruction and biomechanical analysis. Based on the data he analyzed, Dr. Smith calculated the impact speed of defendant's vehicle as approximately 10 miles per hour. He characterized the collision as one of "relatively low severity," and likened the G-force associated with it to "hopping off a six-inch curb and landing on both feet," or "plopping into an office chair from a standing position."

Plaintiff presented evidence that his past economic loss, including lost wages, since the date of the accident totaled $232,363. He also presented the testimony of a rehabilitation counselor, who reviewed medical bills totaling $216,000 and testified that the amounts billed were reasonable for the services rendered.

The court submitted to the jury a special verdict form prepared by plaintiff's counsel and approved by counsel for defendant. The jury returned a verdict that found defendant 100 percent at fault for causing the accident. The damages portion of the special verdict, as completed by the jury, is reproduced below:

"Question No. 3

"What are Plaintiff['s] damages?

                "a. Past economic loss, including lost earnings/medical
                   expenses:                                               $ 260,000
                                                                           _________
                "b. Future economic loss, including lost
                   earnings/medical expenses:                              $  11,500
                                                                           _________
                "c. Past non-economic loss:                                $  50,000
                                                                           _________
                "d. Future non-economic loss:                              $     -0-
                                                                           _________
                                                         "TOTAL:           $ 321,500"
                                                                           =========
                

Additional facts and procedural highlights will be set forth as they become relevant to the issues.

DISCUSSION

I. Hanif/Nishihama Reduction

A. Procedural Background

Prior to the commencement of trial, defendant brought a motion in limine to prevent the jury from receiving evidence of medical expenses that exceeded the amount paid on plaintiff's behalf to his medical providers. Defendant asserted, based on a letter from counsel for plaintiff's employer, SBC, that it had reached a compromise agreement with plaintiff's medical providers to satisfy his entire medical tab, which exceeded $211,000 in exchange for the sum of $132,984.92. Defendant argued that the jury should not be permitted to hear evidence that the reasonable value of the medical services exceeded the amount actually paid, since no one will be obligated to pay the difference. As authority for the motion, defendant cited Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, 246 Cal.Rptr. 192 (Hanif) and Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, 112 Cal.Rptr.2d 861 (Nishihama), cases which hold that an injured plaintiff in a tort action cannot recover more than the amount of medical expenses actually paid or incurred, even if the market value of the services is a greater sum. (Hanif, at p. 641, 246 Cal.Rptr. 192; Nishihama, at pp. 306-307, 112 Cal.Rptr.2d 861.)

Here, the trial court denied the motion, with the proviso that if the amount of medical expenses awarded exceeded the amount paid, it would entertain a motion for reduction. The court said: "The cost of the medical damage is what it is. It is what the jury determines it to be. [¶] So if at the end of this trial you can convince me that you're correct, then the Court would limit the recovery and have a hearing after trial, but neither Nishihama [n]or Hanif . . . require the Court to prevent the jury from hearing the evidence in the first instance."

The jury heard evidence of the amount of medical expenses billed by plaintiff's providers and testimony that the amounts were reasonable. The special verdict form, however, lumped medical expenses together with wage loss and other economic damage, by listing a single entry for "Past economic loss, including lost earnings/medical expenses."

After the verdict was entered and the jury discharged, defendant filed a motion for new trial or in the alternative motion for JNOV. Attached to the motion was an unsigned handwritten notation from SBC's counsel stating that "medical payments are $132,984.92," along with 11 pages of computer printouts that purport to document payments made "to, or on behalf of SBC employee Greer."

At the posttrial hearing, the trial judge expressed puzzlement at defendant's choice of motions, noting that the court had not yet ruled on the Hanif/Nishihama issue and had expected to receive a motion for reduction of the verdict based on competent evidence of the amount of paid medical expenses. But "[y]our papers do not ask for a Nishihama hearing. Your papers in the form that they were submitted are asking for [a] new trial pursuant to a section that involves this Court setting aside the jury verdict and allowing a new trial to begin before a new jury." To the extent the motion sought a new trial or JNOV, the court declared that it would be denied, since it found no legal error and the verdict was proper according to the evidence presented to the jury.

The trial judge stated that while she would entertain a motion for Hanif/Nishihama reduction in proper form, she wondered how such a motion would work in practice, since the special verdict form, which defense counsel had approved, did not list medical expenses as a separate line item.³

Defense counsel asserted that the jury verdict was "plenty big enough" to facilitate a Hanif/Nishihama offset, but the court replied that any reduction at this point would be purely speculative.

The court nevertheless gave defendant another opportunity to make a motion for a Hanif/Nishihama reduction, but asked for briefing on how to address the failure of the special verdict to itemize medical expenses.

Defendant came back with a written motion for a Nishihama offset, but by the time a hearing was held, the trial court noted that defendant's notice of appeal had been filed, divesting it of jurisdiction. Defense counsel replied that she "didn't participate fully in the appellate choices," and acknowledged she was not "resisting in a large way the jurisdictional argument," but...