Ochoa v. Dorado

• Decision Date: 22 July 2014
• Docket Number: B240595
• Citation: 174 Cal.Rptr.3d 889,228 Cal.App.4th 120
• Court: California Court of Appeals Court of Appeals
• Parties: Joaquin OCHOA et al., Plaintiffs and Appellants, v. Jesus Felipe DORADO et al., Defendants and Appellants.

228 Cal.App.4th 120

174 Cal.Rptr.3d 889

Joaquin OCHOA et al., Plaintiffs and Appellants,

v.Jesus Felipe DORADO et al., Defendants and Appellants.

B240595

Court of Appeal,

Second District, Division 3, California.

Filed July 22, 2014

See 8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 58, 59.

APPEALS from an order of the Superior Court of Los Angeles County, John A. Torribio, Judge. Appeals dismissed in part, and order reversed in part with directions. (Super. Ct. No. VC056716)

Mgdesyan Law Firm, Sherman Oaks, George G. Mgdesyan; The Ehrlich Law Firm and Jeffrey Isaac Ehrlich, Encino, for Plaintiffs and Appellants.

Brown, Brown & Klass, Agoura Hills, Delos E. Brown, Robert L. Kaufman and John J. Stumreiter for Defendants and Appellants.

CROSKEY, Acting P.J.

Joaquin Ochoa was driving and Imelda Moreno was a passenger in a big-rig tractor without a trailer when the vehicle was struck from behind by a tractor-trailer being driven by Jesus Felipe Dorado, a driver for Trimac Transportation Services Western, Inc. (Trimac). Dorado and Trimac conceded liability, and a jury awarded damages to both plaintiffs. The trial court ordered a partial new trial on certain economic damages and struck the awards of noneconomic damages. Plaintiffs appeal those rulings. Defendants also appeal, challenging the denial of their motion for judgment notwithstanding the verdict (JNOV) and the denial of their motion in limine.

Defendants' new trial and JNOV motions were premature because they were filed before the case was fully decided. Both the motions and the order ruling on the motions are void and of no effect. We therefore will reverse the order as to those rulings. In addition the order striking the awards of noneconomic damages is nonappealable, and Defendants' appeal from the judgment is of no effect and must be dismissed because there is no judgment.

We also will address certain legal questions that are likely to arise on remand concerning damages for past medical expenses. We conclude that (1) unpaid medical bills are not evidence of the reasonable value of the services provided and (2) no expert witness declaration is required for a treating physician offering an opinion based on facts acquired in the physician-patient relationship or otherwise acquired independently of the litigation, including, to the extent it is otherwise admissible, an opinion on reasonable value.

FACTUAL AND PROCEDURAL BACKGROUND

1. Factual Background

Plaintiffs were stopped in traffic on the I–710 freeway on July 10, 2008, when Dorado rear-ended them. They were not hauling a tractor at the time, but were taking the truck in for service and driving to the office to drop off some papers. Dorado did not notice that the traffic in front of him had stopped until it was too late for him to stop safely. He applied the brakes, but the force of the collision pushed Plaintiffs' truck forward about 18 feet, striking tractor in front. Plaintiffs were taken to a hospital emergency room.

Plaintiffs were living together at the time of the collision and are now married.¹ Moreno owned the truck in which they were riding and hired Ochoa as a driver. Moreno provided trucking services as an independent contractor under a contract with Xtra Mile Transport, Inc.

Plaintiffs were treated for back pain after the collision, first by a chiropractor and later an orthopedic surgeon, Dr. Michael Schiffman. Ochoa continued to drive professionally, but with pain. He passed a federal trucker's medical exam in August 2010. He underwent back surgery in February 2011. The surgery alleviated but did not eliminate the pain. Ochoa has not worked since the surgery.

Moreno suffered incapacitating back pain after the collision and experienced no significant improvement after two years of treatment. She underwent back surgery in early 2011.

2. Pretrial Proceedings

Plaintiffs filed a complaint in July 2010 alleging counts against Defendants for negligence and loss of consortium. Plaintiffs named numerous treating physicians as expert witnesses in their expert witness designation. They designated Joyce Pickersgill as a retained expert (Code Civ. Proc., § 2034.210, subd. (b)) ² on the subject of economic damages, but they designated no retained expert to testify specifically on the reasonableness of their medical expenses.

Defendants filed a motion in limine No. 1 to exclude testimony by Plaintiffs' nonretained treating physicians on any expert opinions that were not formed at the time of and for purposes of treatment, but instead were formed for purposes of litigation. Defendants argued that Plaintiffs had listed 25 individual, nonretained treating physicians or other health care providers in their expert witness designation and stated in the designation that each would testify on “plaintiff's condition, diagnosis, prognosis and related issues.” Defendants argued that this description “does not include opinions on the reasonable value of medical services or the non-medical causation issues relating to the injuries,” and that the treating physicians for whom no expert witness declaration was provided should be precluded from testifying on such matters.

Defendants also filed a motion in limine No. 5 to exclude any evidence of the reasonable amount of Plaintiffs' medical expenses, arguing that Plaintiffs' failure to produce such evidence in response to discovery and failure to designate an expert witness to testify on the reasonableness of their medical expenses precluded the presentation of such evidence at trial. Defendants cited Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 129 Cal.Rptr.3d 325, 257 P.3d 1130 (Howell ) for the proposition that a plaintiff can recover no more than the reasonable value of the medical services provided.³

The trial court granted Defendants' motions in limine Nos. 1 and 5 in part, ruling that Plaintiffs' treating physicians not designated as retained experts could testify only on their medical services provided, their medical diagnoses, and the fees charged for their services. The court ruled that Plaintiffs' nonretained treating physicians could not testify on other matters such as whether their fees represented the reasonable value of the services provided. The court later modified its ruling by deciding that Dr. Schiffman could also testify on his expert opinion as to legal causation. The court found that Dr. Schiffman had acted as a treating physician at all times and did not act as an expert retained for purposes of litigation. The court also reaffirmed its ruling that Dr. Schiffman could not testify on the reasonable value of the services provided “because that's above and beyond his responsibilities as a treating physician.”

Defendants filed a motion in limine No. 6 to exclude any testimony by Pickersgill. They argued that Plaintiffs had designated Pickersgill as an expert who would testify on economic damages, but they had unreasonably failed to make her available for deposition (§ 2034.300, subd. (d)). The trial court ordered that she be made available for deposition and denied the motion.

Defendants filed a motion in limine No. 9 to exclude any evidence of or claim for noneconomic damages, arguing that Civil Code section 3333.4 precluded any recovery of noneconomic damages because Plaintiffs were uninsured at the time of the collision. Defendants presented evidence that the liability insurance policy that Plaintiffs had identified in discovery as applicable was canceled before the collision. Plaintiffs opposed the motion and presented evidence of a commercial lines insurance policy issued by Williamsburg National Insurance Company (Williamsburg) identifying Andres Marroquin, dba Xtra Mile Transport, as the named insured. The policy period included the date of the collision, and the policy identified by vehicle identification number the truck that Ochoa was driving at the time and listed Ochoa as a driver. The trial court deferred ruling on the motion.

3. Trial and Verdict

A jury trial commenced in November 2011. Defendants objected at trial to questioning of Dr. Schiffman on the reasonableness of the amounts billed for medical treatment that he provided. The trial court sustained the objection, “based on the motion in limine.” Defendants then stipulated to the amounts billed for Plaintiffs' past medical treatment. Plaintiffs presented no testimony at trial on the reasonableness of their past medical expenses. The court admitted evidence of the amounts of Plaintiffs' medical bills at the conclusion of trial.

Plaintiffs presented expert testimony by Gene Bruno, a rehabilitation consultant, on the current cost of future medical care and other matters. Bruno testified on the cost of recommended future medical visits, stating, for example, with respect to an orthopedist, “One visit a month at $150 a visit.” He testified that medication would cost from $4,564 to $4,785 per year, and also itemized other future medical costs.

Pickersgill projected future increases in the costs stated by Bruno, estimated Plaintiffs' life expectancies, and calculated the present value of the stated future medical expenses. She also testified on Plaintiffs' lost future earning capacities.

The jury returned a special verdict on December 6, 2011, finding that Defendants' negligence was a substantial factor in causing Plaintiffs harm. It found that Ochoa had suffered $345,539 in damages for past medical expenses and $26,000 in past noneconomic damages, and that he would suffer $200,000 in damages for lost future earning capacity, $125,000 in damages for future medical expenses, and $26,000 in future noneconomic damages. The jury found that Moreno had suffered $465,536 in damages for past medical expenses and $35,000 in past noneconomic damages, and that she would suffer $200,000 in damages for lost future earning capacity, $145,000 in damages for future medical expenses, $40,800 in damages for future household services, and...