Winfred D. v. Michelin North America, Inc., B195416.

• Citation: 81 Cal. Rptr. 3d 756,165 Cal.App.4th 1011
• Decision Date: 07 August 2008
• Docket Number: No. B195416.,B195416.
• Court: California Court of Appeals
• Parties: WINFRED D., Plaintiff and Appellant, v. MICHELIN NORTH AMERICA, INC., et al., Defendants and Respondents.

165 Cal.App.4th 1011

81 Cal. Rptr. 3d 756

WINFRED D., Plaintiff and Appellant, v. MICHELIN NORTH AMERICA, INC., et al., Defendants and Respondents.

No. B195416.

Court of Appeals of California, Second District, Division One.

August 7, 2008.

As modified August 27, 2008.

[165 Cal.App.4th 1013]

Girardi and Keese, David R. Lira, Shahram A. Shayesteh, David N. Bigelow; The Mandell Law Firm, Laurence H. Mandell and Robert J. Mandell for Plaintiff and Appellant.

Yukevich Calfo & Cavanaugh, James J. Yukevich, Thomas Borncamp and Emily Hicks for Defendants and Respondents.

[165 Cal.App.4th 1014]

OPINION

MALLANO, P. J.

Plaintiff was in the business of transporting Asian produce from markets in Los Angeles to several establishments in Las Vegas. He rented a cargo van for that purpose. On August 23, 2004, while transporting produce to Las Vegas, the right rear tire delaminated, causing a vehicle rollover. Plaintiff sustained a severe brain injury.

Plaintiff filed this personal injury action against the designer and the manufacturer of the tire, alleging defects in the right rear tire. Defendants contended that plaintiff caused the accident by overloading the vehicle with produce. At trial, over objection, the trial court permitted defendants to introduce evidence that, while plaintiff was married to his first wife, he had an affair with, and later married, his business partner's wife; he then had two wives; plaintiff falsely told his second wife, before marrying her, that he had divorced his first wife; he eventually divorced his second wife; and he thereafter had an affair with a third woman, with whom he had two children. The trial court reasoned that this evidence was relevant to plaintiff's credibility and the cause of the accident. The jury returned a verdict for defendants,

The questions on appeal are whether the evidence of plaintiff's private life should have been admitted and, if not, whether it prejudiced the case. We conclude that evidence of plaintiff's illicit, intimate conduct was not relevant; to the extent the evidence was relevant, it should have been excluded as unduly prejudicial in response to plaintiff's motion under Evidence Code section 352; and its admission caused a miscarriage of justice. The disputed evidence was so inflammatory it appears reasonably probable that had it been excluded, plaintiff could have obtained a verdict in his favor. We therefore reverse for a new trial.

I BACKGROUND

The following allegations, facts, and testimony are taken from the pleadings, motions, depositions, and evidence at trial.

On February 3, 2005, plaintiff Winfred D. filed this action against Michelin North America, Inc., and Michelin Americas Research and Development Corporation (collectively Michelin), alleging that Michelin was liable for the delamination of a tire on the vehicle he was driving on August 23, 2004, causing him to lose control of the vehicle and sustain severe injuries including head trauma.¹ The complaint alleged causes of action for negligence, strict products liability, and breach of express and implied warranties—all related to the design, manufacturing, maintenance, marketing, and warranties of the tire. Winfred's wife, Celinia D., whom he married in 1970, alleged a cause of action for loss of consortium. She dismissed her claim before trial. Winfred and Celinia had two sons, one in his late 20's, the other in his early 30's, at the time of the accident.

At the first session of Winfred's deposition, Michelin asked him several questions about his private life, such as: did he get a divorce from Celinia in Mexico in 1983; did he get married to Rosalinda V. in 1984; did he live with Rosalinda for two years in Los Angeles; did he tell Celinia he was married to Rosalinda; was he married to Celinia and Rosalinda at the same time; had he visited a mistress on any of his trips to Las Vegas; and did he father two children by his mistress, Maria P.? These questions were met with objections by Winfred's attorney and instructions not to answer on grounds of relevancy and privacy. Winfred refused to provide answers.

Winfred was also asked, "Who is Maria [P.]?" Without objection, he answered, "I don't recall." After several more questions relating to Maria, all of which were answered, "I don't recall," counsel for Michelin asked, "Sir, did you ever have children with Maria [P.]?" Winfred's attorney objected on the ground of privacy and instructed Winfred not to answer. Winfred followed that advice. Winfred was then asked a series of questions about the identity of any sons he had in Nevada and whether he supported them financially. Based on privacy objections, Winfred did not give any answers.

James Merikangas, M.D., a neuropsychiatrist, testified at his deposition that the accident caused Winfred to: (1) suffer a "demonstrable loss of brain tissue and loss of brain function"; (2) experience "difficulties with his cognition in every sphere"; and (3) have problems "in moving, speaking, thinking, perceiving, having emotions, and controlling his body." From a medical standpoint, the accident made Winfred function "as if he were retarded"; he was "below 98 percent of the population in his intelligence and his general ability to function." Dr. Merikangas stated that Winfred was "incompetent" to give testimony in that "his memory is flawed," and "he has confabulation"—"he says things that he believes to be true which may not be because of his brain injury." Dr. Merikangas had read Winfred's deposition transcripts and thought Winfred lied when he said he could not remember the name of the woman (Maria) who mothered his illegitimate children. According to Dr. Merikangas, Winfred's answer to that question was "an indication that he has brain damage because someone who wasn't brain damaged wouldn't have responded the way [Winfred] did." Dr. Merikangas opined that Winfred had made a "bad strategic decision" because of his brain injury.

Tony Feuerman, M.D., a neurosurgeon retained by Winfred as a consultant, noted that Winfred suffered a stroke in 1995 but had made a complete recovery. Dr. Feuerman stated that the 2004 accident fractured Winfred's skull, caused bleeding on the outside of the brain, and made his scalp swell. In general, as the bleeding of the brain increases, a person's cognitive functions, including thinking and memory, deteriorate. Winfred also developed fluid on the brain. His condition worsened, and he required surgery. Two holes were drilled in his skull, one on each side of his head, to release the fluid and relieve the pressure on the brain. In addition, Winfred's brain was bruised in the front and middle lower areas, which may lead to problems with memory, thinking, and speech. As of February 2006, Winfred suffered from encephalomalacia, or loss of brain tissue. His brain had several holes (as distinguished from the two holes drilled in his skull) filled with fluid that previously contained brain tissue. There was also insufficient blood flow to the brain.

Dr. Feuerman administered a test to evaluate Winfred's memory, speech function, and ability to calculate. Winfred's score was "normal" for a person with a fourth grade education; Winfred was a college graduate. During a medical examination, Dr. Feuerman learned that Winfred had a poor attention span and would "drift[] off subject" when answering questions. Winfred also had difficulty naming objects and repeating phrases. Dr. Feuerman concluded that, as of April 17, 2006, Winfred had problems with his memory, thinking, writing, and walking, among other things. With the exception of the difficulty in writing, the other conditions will never improve. Dr. Feuerman was confident that Winfred was not faking his medical problems.

As for Winfred's physical difficulties, Celinia had to help him take a shower, go to the bathroom, and get dressed.

In June 2006, the month before trial, Winfred filed an in limine motion to exclude evidence and argument regarding his "multiple marriages and extramarital affairs." By this time, Celinia had dismissed her loss of consortium claim. The motion asserted that evidence of Winfred's illicit conduct was irrelevant (Evid. Code, §§ 210, 350) and was more prejudicial than probative because it would create a substantial danger of undue prejudice, of confusing the jury, or of misleading the jury (id., § 352; all section references are to the Evidence Code unless otherwise indicated). Michelin filed opposition based on the deposition testimony of Winfred and Dr. Merikangas, arguing that Winfred was using his brain injury as an excuse to make conscious strategic decisions about when to answer a question and when to feign memory loss. Michelin contended that Winfred's failure to answer questions about his second marriage (to Rosalinda), his subsequent affair (with Maria), and his illegitimate sons tended to disprove that he had memory problems; instead, Michelin argued, it proved he was a liar. In fact, Winfred had not disclosed any of his illicit activities to his Los Angeles family. By order dated July 21, 2006, the trial court denied the motion without a statement of reasons.

Trial began on July 24, 2006. During opening statement, one of Winfred's attorneys, David Lira, described (1) Winfred's business—transporting "exotic" vegetables and fruits from markets in Los Angeles to restaurants and businesses in Las Vegas; (2) the accident that occurred on August 23, 2004; (3) Winfred's brain injury and cognitive deficits; and (4) the alleged defects in the right rear tire. Lira also talked about his client, saying:

"[Winfred] was raised and educated in the Philippines. . . . [I]n 1969, he received a Bachelor's of Science degree in mechanical engineering from the Mapua Institute of Technology in Manila. A year later he immigrated to the United States, to New Jersey . . . , to work for Chevron. A year later he met Celinia and they were married in New Jersey. Four years later, in 1983, he was given a...