Filed 8/11/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MALAK MELVIN ABDUL B306011
QAADIR,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BC656206)
v.
UBALDO GURROLA FIGUEROA
et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Daniel S. Murphy, Judge. Affirmed.
Cole Pedroza, Curtis A. Cole, Mathew S. Levinson,
Susannah D. Dahlberg, Kenneth R. Pedroza; Poole Shaffery &
Koegle, John H. Shaffery and Jason A. Benkner for Defendants
and Appellants.
Tucker Ellis and Traci L. Shafroth for California Medical
Association, California Dental Association, and California
Hospital Association as Amicus Curiae on behalf of Defendants
and Appellants.
Fred J. Hiestand for The Civil Justice Association of
California as Amicus Curiae on behalf of Defendants and
Appellants.
Horvitz & Levy, Robert H. Wright and Steven S.
Fleischman for Association of Southern California Defense
Counsel as Amicus Curiae on behalf of Defendants and
Appellants.
Morgenstern Law Group, Robert A. Morgenstern and Ninos
Saroukhanioff for The Trucking Industry Defense Association as
Amicus Curiae on behalf of Defendants and Appellants.
McElfish Law Firm, Raymond D. McElfish; Law Offices of
Bob B. Khakshooy, Bob B. Khakshooy; The Ehrlich Law Firm,
and Jeffrey I. Ehrlich for Plaintiff and Respondent.
_____________________________
Ubaldo Durrola Figueroa and Pacifica Trucks LLC
(Defendants) appeal from a judgment awarding economic and
noneconomic damages to Malak Melvin Abdul Qaadir in a
personal injury suit arising from a traffic collision. Qaadir
sought medical treatment for his injuries from lien providers who
did not accept his insurance plan. The medical bills from the lien
providers remained unpaid at the time of trial (unpaid medical
bills).
Defendants1 contend the trial court erred by: (1) admitting
evidence of the full unpaid medical bills and the medical bills
1 In this appeal, four separate amicus briefs have been filed
in favor of Defendants’ position. We will only consider those
arguments by amici which are raised by the parties on appeal
and address them in conjunction with the parties’ arguments.
2
paid by Qaadir’s insurance plan to prove his past and future
medical damages; (2) excluding testimony that Qaadir’s attorney
referred him to the lien providers; (3) precluding Defendants from
arguing Qaadir failed to mitigate his damages when he chose
providers who did not accept his medical insurance; (4) denying
Defendants’ motion for mistrial; and (5) denying their request for
a continuance. According to Defendants, these errors culminated
in an excessive damages award. We conclude none of these
grounds warrant reversal and affirm the judgment.
FACTS
On August 10, 2015, Qaadir was driving a truck for his
employer when he was hit from behind by a tractor-trailer driven
by Figueroa, who was employed by Pacifica Trucks. Qaadir was
travelling at approximately 10 to 15 miles per hour and Figueroa
was travelling at approximately 45 miles per hour. Both vehicles
weighed about 33,000 pounds.
The Medical Treatments
Qaadir experienced leg and back pain the next day, which
prompted him to seek medical treatment under his health
insurance plan at the Kaiser South Bay Medical Center and
“ ‘As a general rule, issues not raised by the appealing parties
may not be considered if raised for the first time by amici curiae.
[Citations.]’ ” (Mercury Casualty Co. v. Hertz Corp. (1997) 59
Cal.App.4th 414, 425.) “California courts refuse to consider
arguments raised by amicus curiae when those arguments are
not presented in the trial court, and are not urged by the parties
on appeal. ‘ “Amicus curiae must accept the issues made and
propositions urged by the appealing parties, and any additional
questions presented in a brief filed by an amicus curiae will not
be considered [citations].” ’ ” (California Assn. for Safety
Education v. Brown (1994) 30 Cal.App.4th 1264, 1275; Moore v.
Mercer (2016) 4 Cal.App.5th 424, 433–434.)
3
Health First Medical Group. Approximately one month after the
accident, Qaadir’s personal injury attorney referred him to a pain
management specialist, Dr. Hassan Badday. Dr. Badday treated
Qaadir at South Bay Pain Docs, where he also received
chiropractic treatment and physical therapy.
From October 2015 to March 2016, Qaadir received
epidural and facet-block injections to relieve his pain at Bay City
Surgery Center. None of the injections successfully alleviated the
pain. Qaadir ultimately underwent spinal-fusion surgery on July
25, 2016, which required the insertion of rods and screws into his
back. The surgery was performed by Dr. Fardad Mobin, a
neurosurgeon, at Bay City Surgery Center. Although the surgery
helped Qaadir’s leg pain, his back pain continued.
Qaadir’s back pain led Dr. Mobin to refer him to Dr.
Rostam Khoshar, another pain management specialist associated
with Bay City Surgery Center. After a fifth epidural injection in
January 2018 failed to provide relief, Dr. Khoshar recommended
a spinal cord stimulator be surgically implanted. After a five-day
trial, the spinal cord stimulator unit was permanently implanted
in March 2018. The surgery was performed at Bay City Surgery
Center. On July 15, 2019, Dr. Mobin performed a hardware
removal and posterior fusion surgery at Bay City Surgery Center.
The Trial on Damages
Qaadir brought a negligence suit against Defendants on
March 30, 2017. Defendants admitted liability and the case
proceeded to trial solely on the issue of damages. Prior to trial,
Defendants filed a motion in limine to exclude evidence of
Qaadir’s unpaid medical bills (MIL No. 6), which was denied.
At trial, Qaadir presented evidence of his full medical bills,
both paid and unpaid. Except for the medical services he initially
4
received under his health insurance at Kaiser and Health First,
all of Qaadir’s medical care was provided on a lien basis. At the
time of trial, no payments had yet been made for the care he
received from the lien providers. The total amount billed for
Qaadir’s medical care—including the treatment paid by his
insurance—was $838,320.02.
Qaadir’s billing expert opined the reasonable value of his
medical bills totaled $632,456, using benchmark databases for
medical services in the local geographical area. Qaadir’s billing
expert acknowledged he held an ownership interest in Bay City
Surgery Center and had a “business relationship” with South Bay
Pain Docs. The defense’s billing expert opined the reasonable
value of Qaadir’s medical care was $174,111, based on an average
of what private insurers, Medicare, and workers’ compensation
would agree to pay and medical providers would agree to receive
for those services.
The jury returned a damages verdict totaling $3,464,288,
comprised of past lost earnings of $282,288; past medical
expenses of $532,000; future lost earnings of $900,000; future
medical expenses of $500,000; past noneconomic loss of $500,000;
and future noneconomic loss of $750,000. Judgment was entered
for Qaadir and Defendants filed a motion for new trial, which the
trial court denied. Defendants timely appealed.
DISCUSSION
I. Admission of the Full Unpaid Medical Bills
Defendants contend the trial court erred when it admitted
evidence of the full unpaid medical bills to prove Qaadir’s past
and future medical damages. We conclude the trial court abused
its discretion to admit evidence of the full unpaid medical bills
without first requiring Qaadir to demonstrate the evidence was
5
admissible because he actually incurred those amounts.
However, we conclude the error was harmless.
A. Legal Principles
Admissibility of evidence depends on whether the evidence
is material and relevant to a factual issue to be decided by the
trier of fact. As such, we begin by identifying the legal principles
that ultimately govern what evidence is material and relevant.
In a tort action for economic damages, the California
Supreme Court has held an award of past medical expenses is
limited to the lesser of (1) the amount paid or incurred and
(2) the reasonable value of the services rendered. (Howell v.
Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541, 556,
(Howell).)
Prior to Howell’s publication, discussed post, a plaintiff
seeking to prove past medical damages was generally permitted
to introduce the billed amount for services rendered so long as
there was independent evidence that the underlying medical
procedures were necessitated by the alleged tortious act.
(Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311, 1332
(Bermudez).) Howell narrowed the circumstances under which
such evidence is admissible. It held evidence of the full billed
amount is not relevant, and is therefore not admissible, to prove
the past medical damages of an insured plaintiff if his or her
insurer has pre-negotiated a lower rate as full payment for the
services provided. (Howell, supra, 52 Cal.4th at p. 567.) After
Howell, a split of authority arose regarding the circumstances
under which the full billed amount is material and relevant to
prove economic damages.
In Pebley v. Santa Clara Organics, LLC (2018) 22
Cal.App.5th 1266 (Pebley), the court held that when an insured
6
plaintiff chooses to seek medical care outside of his or her
insurance plan, such a plaintiff may be considered “uninsured,”
making the incurred but unpaid medical bills potentially relevant
to prove past and future medical damages—so long as additional
evidence, usually in the form of expert opinion testimony, is also
presented on the reasonable value of the services rendered. (Id.
at p. 1269.) Pebley held, “when a plaintiff is not insured, medical
bills are relevant and admissible to prove both the amount
incurred and the reasonable value of the medical services
provided.” (Id. at p. 1275.)
By contrast, the court in Ochoa v. Dorado (2014) 228
Cal.App.4th 120 (Ochoa) held that evidence of “the full amount
billed, but unpaid, for past medical services is not relevant to the
reasonable value of services provided.” (Id. at p. 135.) Ochoa
went on to hold that “evidence of unpaid medical bills cannot
support an award of damages for past medical expenses.” (Id. at
p. 139.) Ochoa thus categorically excludes evidence of unpaid
medical bills.
Based on our reading of Howell and its progeny, we
conclude evidence of a medical bill is relevant to prove or disprove
the “paid or incurred” prong of past medical damages if it can be
established the bill is actually paid or incurred. Thus, for a
plaintiff such as Qaadir, evidence of his unpaid medical bills is
relevant to his past medical damages only if he can show he
actually incurred those amounts. Likewise, evidence of unpaid
medical bills is relevant to prove or disprove the “reasonable
value” prong of past medical damages if it can be shown the bill is
actually incurred. If the full billed amount is not paid or
incurred, Howell tells us it is not relevant to the issue of medical
damages “for the simple reason that the injured plaintiff did not
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[and will not] suffer any economic loss in that amount.
[Citations.]” (Howell, supra, 52 Cal.4th at p. 548.)
1. Cases that Limit the Admissibility of the Full
Amount Billed
a. Howell
In Howell, the plaintiff in a motor vehicle collision received
treatment from a medical provider through her health insurance
which had pre-negotiated a discounted rate for the services she
received that was lower than the billed amount. (Howell, supra,
52 Cal.4th at pp. 549–550.)
Prior to trial, the defendant moved to exclude the full billed
amount “because only the amounts paid by plaintiff and her
insurer could be recovered[.]” (Howell, supra, 52 Cal.4th at
p.549.) The trial court denied the motion and allowed the full
billed amount ($189,978.63) to be admitted. The jury ultimately
awarded the full billed amount as past medical damages. (Ibid.)
After the verdict was rendered, the defendant moved to reduce
the past medical damages to the discounted rate actually paid by
the insurer to the medical provider ($130,286.90), and the trial
court granted the motion.
Howell framed the issue as follows: “In [the] circumstance
[where the plaintiff’s health insurer negotiates a discounted
rate], may the injured person recover from the tortfeasor, as
economic damages for past medical expenses, the undiscounted
sum stated in the provider’s bill but never paid by or on behalf of
the injured person?” (Howell, supra, 52 Cal.4th at p. 548.)
Working from the rule that damages for past medical
expenses are limited to the lesser of the amount paid or incurred
and the reasonable value of the services, the plaintiff in Howell
contended that she “incurred liability for the full amount of [the
8
medical providers’] bills when she signed patient agreements
with those providers and accepted their services.” (Howell,
supra, 52 Cal.4th at p. 557.)
The Howell court was unpersuaded and noted, “Evidence
presented at the posttrial hearing showed [the medical providers]
accepted the discounted amounts as full payment pursuant to
preexisting agreements with [the insurer], plaintiff’s managed
care plan. Since those agreements were in place when plaintiff
sought medical care from the providers and signed the patient
agreements, her prospective liability was limited to the amounts
[the health insurer] had agreed to pay the providers for the
services they were to render.” (Howell, supra, 52 Cal.4th at
p. 557.) As such, Howell held, “no . . . recovery [for the full billed
amount] is allowed, for the simple reason that the injured
plaintiff did not suffer any economic loss in that amount.
[Citations.]”2 (Id. at p. 548.)
On the question of whether the billed amount is relevant in
a trial where the plaintiff’s health insurer has pre-negotiated a
discount for the procedure the plaintiff received, the Howell court
noted, “Where the provider has, by prior agreement, accepted less
2 In reaching this conclusion, Howell distinguished
Katiuzhinsky v. Perry (2007) 152 Cal.App.4th 1288, 1295–1296
(Katiuzhinsky), which held evidence of the full amount billed was
admissible to determine the reasonable value of past medical
services because “the plaintiffs in that case, who apparently had
no health insurance, remained fully liable to [the] medical
providers for the full amount billed.” Howell cited to
Katiuzhinsky with approval, suggesting that a plaintiff’s liability
for the full amount billed was a critical factor to consider when
deciding whether the full amount billed was relevant to
determine past medical damages. (Howell, supra, 52 Cal.4th at
pp. 554, 557.)
9
than a billed amount as full payment, evidence of the full billed
amount is not itself relevant on the issue of past medical
expenses.” (Howell, supra, 52 Cal.4th at p. 567.)
Howell explained, “It follows from our holding that when a
medical care provider has, by agreement with the plaintiff’s
private health insurer, accepted as full payment for the plaintiff’s
care an amount less than the provider’s full bill, evidence of that
amount is relevant to prove the plaintiff’s damages for past
medical expenses and, assuming it satisfies other rules of
evidence, is admissible at trial.” (Howell, supra, 52 Cal 4th at
p. 567, italics added.)
In resolving the appeal, Howell also rejected the plaintiff’s
contention that under the collateral source rule,3 limiting
damages to the pre-negotiated amount gave a windfall to the
defendant. In analyzing whether the collateral source rule
applied, the Howell court looked at the medical providers’
business operations, noting its complex charging practices, e.g.,
the rise of managed care organizations and the shifting of costs
by doctors and hospitals to “the uninsured, resulting in
significant disparities between charges to uninsured patients and
those with private insurance or public medical benefits.
[Citation.]” (Howell, supra, 52 Cal.4th at p. 561.) Howell noted
that costs for services “can vary tremendously . . . from hospital
3 The collateral source rule prevents reduction of damages
when a third party pays for some or all of a plaintiff’s financial
loss. “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.” (Rest.2d Torts, § 920A, subd. (2).)
10
to hospital in California . . . making any broad generalization
about the relationship between the value or cost of medical
services and the amounts providers bill for them . . . perilous.”
(Id. at pp. 561–562, fn. omitted.)
The Howell court ultimately held, “The negotiated rate
differential[4] lies outside the operation of the collateral source
rule . . . because it is not primarily a benefit to the plaintiff and,
to the extent it does benefit the plaintiff, it is not provided as
‘compensation for [the plaintiff’s] injuries.’ [Citation.] Insurers
and medical providers negotiate rates in pursuit of their own
business interests, and the benefits of the bargains made accrue
directly to the negotiating parties. The primary benefit of
discounted rates for medical care goes to the payer of those
rates—that is, in largest part, to the insurer.” (Howell, supra, 52
Cal.4th at p. 564.)
While Howell discussed the billing disparities among
health care providers in California, it did not rely on this
reasoning to limit the past medical damages to the negotiated
rate or limit the introduction of the full billed amount. The key
that turned Howell is the dollar amount that fully satisfied the
medical provider’s services. Since the plaintiff’s insurer pre-
negotiated a lower amount that satisfied the medical provider in
full, the plaintiff was not liable for the difference between the
undiscounted amount in the bill and the pre-negotiated discount
rate. As such, the full billed amount was deemed not relevant or
admissible to prove past medical damages.
4 The negotiated rate differential is “the difference between
the providers’ full billings and the amounts they have agreed to
accept from a patient’s insurer as full payment.” (Howell, supra,
52 Cal.4th at p. 555.)
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b. Corenbaum
Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, 1319
(Corenbaum) took Howell several steps further. Relying on the
reasoning that the plaintiff may only recover the amount the
medical provider accepts as full payment, Corenbaum held the
billed amount for medical services when the insurer pre-
negotiates a lower rate for services is inadmissible to prove not
only past medical damages, but also future medical damages and
noneconomic damages. (Id. at pp. 1330–1334.)
c. Ochoa
Next, Ochoa extended Howell’s evidentiary limitation to all
cases involving medical damages regardless of whether the
insurer and the medical provider have pre-negotiated a lower
rate than the billed amount.
Unlike Howell, which rested its holding on the actual
amount that fully satisfied the medical provider for services
rendered, Ochoa, quoting Corenbaum, instead focused on
Howell’s dicta regarding the widely divergent medical billing
practices in California to conclude that evidence of the full
amount billed is irrelevant to prove economic and noneconomic
damages. (Ochoa, supra, 228 Cal.App.4th at pp. 135–136.)
Ochoa acknowledged, “Although Howell did not expressly hold
that unpaid medical bills are not evidence of the reasonable value
of the services provided, it strongly suggested such a conclusion.”
(Id. at p. 135.)
Nonetheless, Ochoa held, “the full amount billed, but
unpaid, for past medical services is not relevant to the reasonable
value of the services provided. In our view, this rule is not
limited to the circumstance where the medical providers had
previously agreed to accept a lesser amount as full payment for
12
the services provided. Instead, the observations in [Howell] and
the reasoning in [Corenbaum], . . . compel the conclusion that the
same rule applies equally in circumstances where there was no
such prior agreement.” (Ochoa, supra, 228 Cal.App.4th at pp.
135–136.) Therefore, “evidence of unpaid medical bills cannot
support an award of damages for past medical expenses.” (Id. at
pp. 138–139.)
Ochoa rests its holding on the “reasonable value” prong but
failed to consider whether past medical damages can also be
established by the “amount paid or incurred” prong. Ochoa thus
did not discuss whether unpaid medical bills are relevant to
prove the “amount paid or incurred.”
2. Cases That Permit Evidence of the Full Amount
Billed
a. Bermudez
The plaintiff in Bermudez was uninsured. (Bermudez,
supra, 237 Cal.App.4th at p. 1324.) As such, the issue of the pre-
negotiated discount did not exist in Bermudez. In assessing this
difference with Howell, Bermudez reasoned, “the holding in
Howell ultimately depended upon the ‘paid or incurred’ prong of
the test, not the ‘reasonable value’ prong. [Citation.] Insured
plaintiffs incur only the fee amount negotiated by their insurer,
not the initial billed amount. Insured plaintiffs may not recover
more than their actual loss, i.e., the amount incurred and paid to
settle their medical bills. [Citation.] It was not necessary in
Howell to examine the mechanics of properly measuring damages
in the case of an uninsured plaintiff.” (Bermudez, supra, 237
Cal.App.4th at p. 1329.)
Bermudez further explained, “Howell certainly did not
suggest uninsured plaintiffs are limited in their measure of
13
recovery to the typical amount incurred by an insured plaintiff,
or, for that matter, the typical amount incurred by any other
category of plaintiff. . . . Howell refused to ‘suggest hospital bills
always exceed the reasonable value of the services provided. . . .
[Citation.]’ ” (Bermudez, supra, 237 Cal.App.4th at p. 1329.)
Howell did not offer any “bright-line rule on how to determine
‘reasonable value’ when uninsured plaintiffs have incurred (but
not paid) medical bills.” (Bermudez, supra, at p. 1330.)
The Bermudez court concluded, “To be clear . . . neither
[Howell] nor [Corenbaum] holds that billed amounts are
inadmissible in cases involving uninsured plaintiffs. Bermudez’s
uninsured status meant that billed amounts were relevant to the
amount he incurred (unlike insured plaintiffs, who really only
incur the lower amount negotiated by their insurer). The billed
amounts are also relevant and admissible with regard to the
reasonable value of Bermudez’s medical expenses . . . .”
(Bermudez, supra, at p. 1335.)
Additionally, the Bermudez court found its holding did not
contradict Ochoa, which it interpreted to “[u]ncontroversially . . .
hold[] that evidence of unpaid medical bills, without more, is not
substantial evidence of the reasonable value of services provided.”
(Bermudez, supra, at p. 1337, italics added.)
b. Pebley
The court in Pebley extended Bermudez’s analysis to an
insured plaintiff who chose to receive treatment from providers
outside of his insurance plan. The court held “that such a
plaintiff shall be considered uninsured, as opposed to insured, for
the purpose of determining economic damages.” (Pebley, supra,
22 Cal.App.5th at p. 1269.) The court explained it would be
inequitable to classify the plaintiff, Pebley, as insured “when
14
Pebley, and not an insurance carrier, is responsible for the bills.
Indeed, precluding Pebley from recovering the reasonable value
of the services for which he is liable would result in both
undercompensation for Pebley and a windfall for defendants.”
(Id. at pp. 1277–1278.)
The Pebley court rejected the defendant’s argument the
plaintiff failed to mitigate his damages by using providers who
did not accept his insurance. It found “[a] tortfeasor cannot force
a plaintiff to use his or her insurance to obtain medical treatment
for injuries caused by the tortfeasor. That choice belongs to the
plaintiff.” (Pebley, supra, 22 Cal.App.5th at p. 1277.) If “the
plaintiff chooses to be treated outside the available insurance
plan, the plaintiff is in the same position as an uninsured
plaintiff and should be classified as such under the law.” (Ibid.)
The court reasoned plaintiffs have multiple reasons to seek
treatment outside of their insurance plan, including choosing
specialists who do not accept their insurance or choosing doctors
who may be more willing to participate in the litigation process.
(Ibid.)
Applying Bermudez, the Pebley court held evidence of the
full amount of the medical bills was admissible as relevant to
prove both the amount incurred and the reasonable value of the
services provided, so long as there was also expert testimony
regarding the reasonable value of the services rendered. (Pebley,
supra, 22 Cal.App.5th at pp. 1269, 1275.)
3. Standard of Review
A trial court’s conclusions of law are reviewed de novo.
(Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 712.)
Evidentiary rulings are reviewed for abuse of discretion. (Carnes
v. Superior Court (2005) 126 Cal.App.4th 688, 694.) “ ‘The abuse
15
of discretion standard of review applies to any ruling by a trial
court on the admissibility of evidence.’ [Citation.] ‘Under this
standard, a trial court’s ruling will not be disturbed, and reversal
of the judgment is not required, unless the trial court exercised
its discretion in an arbitrary, capricious, or patently absurd
manner that resulted in a manifest miscarriage of justice.’ ”
(Employers Reinsurance Co. v. Superior Court (2008) 161
Cal.App.4th 906, 919.)
B. Analysis
1. Evidence of the Unpaid Medical Bills Is Relevant
to the Issue of Past Medical Damages
a. Pebley Is Controlling
In denying Defendants’ MIL No. 6, the trial court concluded
that Pebley was controlling. We first determine whether this
legal conclusion was correct.
Defendants assert Pebley does not control because it held
unpaid medical bills were only relevant and admissible if “an
expert [] can competently testify that the amount incurred and
billed is the reasonable value of the service rendered . . . .”
(Pebley, supra, 22 Cal.App.5th at p. 1275.) Stated differently, the
full billed amount under Pebley is only admissible if the billed
amount equals its reasonable value.
We see no reason to read such a limitation into Pebley.
Indeed, such a limitation would completely ignore the reason why
the billed amount is material and relevant to prove past medical
damages—which is to prove “the amount paid or incurred.”
Further, we observe no material distinction between
Qaadir, an insured plaintiff who sought treatment outside of his
insurance plan, and the plaintiff in Pebley, who did the same.
We agree with Pebley that an insured plaintiff who opts to receive
16
medical treatment from outside of his insurance plan should be
considered uninsured for purposes of proving past and future
medical damages. This is because the plaintiff, rather than the
health insurer, is the entity who is obligated to pay. As such, the
trial court did not err in finding Pebley controlling.
b. Denial of MIL No. 6
i. Qaadir Was Required to Establish He
Incurred the Full Billed Amount to
Demonstrate Its Admissibility
As discussed above, evidence of unpaid medical bills may be
relevant to prove or disprove both prongs of the medical damages
calculation if it can be shown the bills were incurred. If the
unpaid medical bills are not incurred, the injured plaintiff will
not suffer economic loss in that amount. In short, the uninsured
plaintiff’s past medical damages are limited to his or her
prospective liability for unpaid medical bills, i.e., the amounts he
or she has incurred.
This is because evidence of the payment amount (i.e., the
full billed amount, or, the reduced amount based on negotiation
between the insurer and the medical provider) is clearly relevant
to prove or disprove the first prong—whether the billed amount
was “paid or incurred.” Under Howell, this prong focuses on the
actual amount that fully satisfies the medical provider for services
rendered.5 Thus, in cases where the plaintiff did not receive
treatment through his or her health insurance plan and the bill
5 Howell explained, “when a medical care provider has, by
agreement with the plaintiff’s private health insurer, accepted as
full payment for the plaintiff’s care an amount less than the
provider’s full bill, evidence of that amount is relevant to prove
the plaintiff’s damages for past medical expenses[.]” (Howell,
supra, 52 Cal.4th at p. 567.)
17
remains unpaid at trial, the question on whether the full medical
bill is admissible turns on the amount for which the plaintiff is
liable. Just as in Howell, if the plaintiff did not actually pay or
incur the full billed amount, evidence of the full medical bills
“is not itself relevant on the issue of past medical expenses.”
(Howell, supra, 52 Cal.4th at p. 567.)
Our conclusion comports with California’s statutory scheme
for economic damages awards since the measure of damages
recoverable in tort is “the amount which will compensate for all
the detriment proximately caused” by the tort. (Civ. Code,
§ 3333.) The unpaid medical bill is a detriment proximately
caused by the tort only if a plaintiff has incurred the full amount
of the bill. Thus, even in the scenario where the billed amount
potentially exceeds its reasonable value, the billed amount is
generally relevant because the plaintiff is financially liable for it.
Our conclusion also comports with Pebley, which held an unpaid
medical bill is relevant to prove economic damages for medical
services when: (1) the plaintiff is “uninsured,” and (2) the
“uninsured” plaintiff is obligated to pay the medical bill. (Pebley,
supra, 22 Cal.App.5th at pp. 1275–1278.)
ii. The Trial Court Erred But It Was Harmless
Our review of the record discloses the trial court neither
asked nor determined whether Qaadir incurred the unpaid
medical bills. The trial court thus abused its discretion when it
denied MIL No. 6 and allowed evidence of the unpaid medical
bills to be admitted without first requiring Qaadir to proffer
evidence of its admissibility: that Qaadir was liable for that
amount.
Nonetheless, we conclude any error was harmless.
An evidentiary “ ‘error is not reversible unless “ ‘it is reasonably
18
probable a result more favorable to the appellant would have
been reached absent the error. [Citations.]’ [Citation.]” ’ ” (Lewis
v. City of Benicia (2014) 224 Cal.App.4th 1519, 1538; People v.
Watson (1956) 46 Cal.2d 818, 836.) Given this record, we cannot
say it is reasonably probable Defendants would have received a
more favorable result absent the error.
At trial, Qaadir’s expert opined the reasonable value of the
medical services provided was $632,456. He testified he arrived
at this figure by using benchmark databases that set out the
amounts that were charged and paid for the same medical
services in the same geographical area. By contrast, the
defense’s billing expert opined the reasonable value of Qaadir’s
medical care was $174,111, based on an average of what private
insurers, Medicare, and workers’ compensation would agree to
pay and medical providers would agree to receive for those
services. The jury’s past medical expenses award of $532,000 fell
squarely within these two experts’ valuations.
The record discloses the experts did not rely on evidence of
the unpaid medical bills to reach their reasonable value
determinations. Indeed, Defendants recognize the unpaid
medical bills “did not help the jury determine Plaintiff’s past and
future medical damages. In other words, this evidence had ‘very
little effect on the issues.’ (See Vorse v. Sarsay (1997) 53
Cal.App.4th 998, 1008.)” We agree and therefore conclude it is
not reasonably likely Defendants would have received a more
favorable outcome even if the trial court had excluded evidence of
the unpaid medical bills.
Nonetheless, Defendants argue they were prejudiced
because evidence of the unpaid bills “ ‘evoke[d] an emotional bias
against’ Defendants” and misled the jury to believe the damages
19
were greater than what was presented. We are not persuaded.
Defendants fail to specify how the unpaid medical bills evoked
“an emotional bias” from the jury over Qaadir’s own testimony
about his pain and suffering, including the “brutal” recovery from
his surgeries, the changes to his lifestyle, and his inability to
work at his chosen profession.
Defendants provide no compelling argument that the jury
was misled to believe the damages were greater than what was
presented since their award fell within the two experts’
valuations. That the jury’s award hewed closer to the plaintiff’s
expert’s opinion does not conclusively show they were misled or
confused by the inclusion of the unpaid medical bill evidence.
2. The Unpaid Medical Bills Were Not Used to
Support Qaadir’s Claim for Future Damages
Defendants contend evidence of the unpaid medical bills
was irrelevant to a calculation of future medical damages.
Qaadir agrees with Defendants; he asserts he did not rely on the
unpaid medical bills to prove his future medical expenses.
The record shows Qaadir presented the testimony from Dr.
Mobin, his treating physician, as to the future care he would
require, including imaging studies of his spine, physical therapy
and pain management, an additional fusion surgery, and a
procedure to replace the battery in the spinal stimulator. A life
care planning expert projected the cost of Qaadir’s future medical
needs using databases that report the fees charged by local
providers for those services. The total cost was then reduced to
present value. Qaadir’s unpaid medical bills were not used to
support his future medical damages claim.
Even if Qaadir’s unpaid medical bills formed the basis to
prove future medical damages, however, there was no error
because Pebley held unpaid medical bills are relevant for
20
purposes of proving an uninsured plaintiff’s past and future
medical expenses. (Pebley, supra, 22 Cal.App.5th at p. 1277.)
3. No Prejudice Resulted From the Admission of the
Bills Paid by the Insurance Plan
Defendants also contest the admission of the full amount of
medical bills that were paid by Qaadir’s insurer (the paid medical
bills). Relying on Corenbaum, Defendants contend evidence of
the paid medical bills was inadmissible because it was irrelevant
to the issue of past medical damages. Further, admission of the
paid medical bills prejudiced them because they artificially
inflated Qaadir’s damages.
We agree evidence of the paid medical bills was
inadmissible to prove past medical damages under Howell.
However, Defendants have failed to demonstrate they were
prejudiced by the admission of that evidence.
At trial, both parties’ experts prepared and presented to the
jury spreadsheets which set out the amounts billed by Kaiser and
First Health for Qaadir’s initial treatments and the expert’s
determination of their reasonable value. Qaadir’s expert further
set out what was paid on each bill. The defense expert showed
Health First and Kaiser billed a total of $5,137.24 for their
services and opined the reasonable value of their services totaled
$3,393.20. Qaadir’s expert presented similar, but different, total
charges. In particular, he showed $2,492.66 was paid for the
Kaiser and Health First bills with one remaining unpaid bill from
Kaiser of $413. Aside from the unpaid $413 Kaiser bill, Qaadir’s
expert’s “suggested reasonable cost/value” of the services
provided by Kaiser and Health First equaled the amounts paid to
them. The jury ultimately awarded Qaadir $532,000 in past
21
medical damages, of which the Kaiser and Health First expenses
represented a tiny fraction of those damages.
Given these facts, Defendants have failed to meet their
burden to show prejudice resulted from the admission of the full
amounts of the Health First and Kaiser medical bills. (State
Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600,
610 (Pietak) [appellant bears burden to demonstrate reversible
error].) We decline to conclude the jury’s award of $532,000 was
artificially inflated in any meaningful way by the admission of
evidence of paid medical bills totaling $5,137.24 when the
plaintiff’s expert testified the reasonable cost/value of those
services equaled the amount paid of $2,492.66 and the defense
expert testified the reasonable value of those services was
$3,393.20.
II. No Prejudice Resulted From the Exclusion of the
Attorney Referral Evidence
Defendants contend the trial court committed prejudicial
error when it excluded evidence that Qaadir’s attorney referred
him to the lien-physicians. Defendants assert the referral
evidence was relevant to “how the amounts of the medical bills
were set, i.e., [to] how the lien-physicians set their billed charges
was influenced by the fact that the amount they recovered was
directly linked to what Plaintiff recovered at trial.” In short,
Defendants contend the referral evidence was relevant to
demonstrate the lien-physicians’ incentive to inflate the bills.
We agree the referral evidence was relevant to the question
of the reasonable value of the lien-physicians’ medical care
because it may show bias or financial incentives on the part of
the lien-physicians. If a lien-physician wants future referrals
from a lawyer and understands that the lawyer benefits from
inflating a client’s medical bills, that incentive might encourage
22
the lien-physician to inflate its current bill to please the lawyer
and win future referrals. (Evid. Code, §§ 210, 350.) During his
opening statement defense counsel advised the jury, without
objection, that Qaadir was “directed to go see Dr. Badday by his
lawyer.” Subsequently, defense counsel asked Qaadir’s billing
expert and Qaadir himself whether his attorney referred him to
the lien-physicians. Plaintiff’s counsel objected on relevance
grounds, and the objection was sustained both times. Ultimately,
the trial court never ascertained the relevance of defense
counsel’s questions by either granting a side bar conference, or,
permitting defense counsel at a recess to proffer its relevance.6
This was error.
Defendants, however, fail to demonstrate prejudice resulted
from the error. At trial, defense counsel ably explored the lien-
physicians’ incentive to inflate their bills due to the nature of the
liens. The jury was advised Dr. Mobin, Qaadir’s treating
physician, and others at Bay City Surgery and South Bay Pain
Docs provided medical care on a lien basis. At closing, defense
counsel highlighted Dr. Mobin’s and Bay City Surgery’s charges
“in excess of $600,000 on a lien” and questioned whether there
was bias from this. Defense counsel also cross-examined Dr.
Morris, Qaadir’s billing expert, on his role at South Bay Surgical
Center and his business relationship with South Bay Pain Docs.
At closing, he argued Dr. Morris had an incentive to overstate the
reasonable value of the services rendered due to his connection
with the lien providers. Although not evidence (McIntyre v. The
Colonies Pacific, LLC (2014) 228 Cal.App.4th 664, 674), defense
counsel’s opening statement and question to Dr. Mobin also
6 After the trial court sustained the objection during Qaadir’s
cross examination, defense counsel requested to approach the
bench and the trial court denied the request.
23
alerted the jury to the potential that Qaadir was referred to the
lien-physicians by his attorney. As a result, the jury was aware
of “how the lien-physicians set their billed charges was influenced
by the fact that the amount they recovered was directly linked to
what Plaintiff recovered at trial.”
III. The Trial Court Did Not Err When It Precluded
Evidence of Mitigation
Despite conceding that “[i]t is undisputedly the insured
plaintiff’s choice to see a lien-physician” and that they “do not
argue that an insured plaintiff must use his insurance-covered
medical providers[,]” Defendants contend they should have been
allowed to present evidence Qaadir chose to receive treatment
outside of his insurance. According to Defendants, this evidence
would have allowed the jury to consider whether he reasonably
mitigated his damages.
1. Defendants have waived the mitigation of damages
issue.
Qaadir argues Defendants have waived the mitigation of
damages issue. We agree. During trial, Qaadir filed a motion in
limine, citing to Pebley, to exclude evidence of his health
insurance status. The trial court agreed that under Pebley, “you
cannot use private insurance for mitigation damages.” It asked
defense counsel to proffer the evidence he wanted to admit and
explain its relevance. Defense counsel explained he wanted to
clarify testimony by Qaadir’s billing expert that the Kaiser and
Health First payments were made through a contractual
agreement. He stated, “I don’t want to talk about workers’ comp.
I don’t even want to use the word ‘insurance.’ I have no intention
of doing that.” After further argument, the trial court ruled, “I’m
going to allow that. Once again, it cannot be argued for
24
mitigation damages. There can’t be any argument that he should
have gone to Kaiser, but it’s fair game to ask him about Kaiser
being contracted.” Defense counsel responded, “I have no issue
with that, your Honor.”
Defendants assert their trial counsel’s statements were an
acknowledgment of the trial court’s ruling and not a waiver of the
mitigation of damages issue. We disagree.
Defense counsel never indicated he wished to argue or
present evidence that Qaadir failed to mitigate his damages by
using lien providers rather than providers covered by his
insurance. Instead, defense counsel’s statement “I have no issue
with that, your Honor” was an express waiver of the mitigation of
damages argument. (Sperber v. Robinson (1994) 26 Cal.App.4th
736, 742–743.) Defendants may not now “change [their] position
and adopt a new and different theory on appeal.” (Richmond v.
Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 874.)
We also reject Defendants’ assertion that their objection
during closing arguments and their motion for new trial
preserved the issue. The objection and new trial motion,
discussed post, related to a perceived statement by plaintiff’s
counsel that Qaadir did not have health insurance, not that he
did have health insurance but declined to use it.
2. There is no legal authority to support Defendants’
mitigation of damages argument.
Even if it was not waived, we find Defendants’ argument to
be unavailing. Evidence of a plaintiff’s insured status under
these circumstances is properly excluded to avert confusion of the
issues, or to prevent misleading or prejudicing the jury. (Pebley,
supra, 22 Cal.App.5th at p. 1278; Evid. Code, § 352.)
25
Defendants present no authority for the proposition that
Qaadir was required to mitigate his damages by seeking care
only within his insurance plan. Instead, it is undisputed he had
a right to seek treatment outside of his insurance plan. “ ‘The
rule of mitigation of damages has no application where its effect
would be to require the innocent party to sacrifice and surrender
important and valuable rights.’ [Citation.]” (Valle de Oro Bank
v. Gamboa (1994) 26 Cal.App.4th 1686, 1691.) Whether Qaadir
could have reasonably mitigated his damages by using providers
under his insurance plan instead of the lien providers was simply
not at issue.7
Our analysis conforms with Pebley’s rejection of a similar
mitigation of damages argument. Defendants contend Pebley was
wrongly decided because it allows a plaintiff to present a legal
fiction to the jury that he is uninsured rather than insured. This
argument is without merit. Pebley does not permit a plaintiff to
misrepresent his insurance status to a jury. Indeed, Pebley found
the trial court did not abuse its discretion when it excluded
evidence of the plaintiff’s insurance status. (Pebley, supra, 22
Cal.App.5th at p. 1278.) Instead, Pebley merely held an insured
plaintiff who receives treatment outside of his insurance plan
“is to be considered uninsured (or noninsured) for purposes of
proving the amount of his damages for past and future medical
expenses.” (Id. at p. 1277.) That is, he may prove the reasonable
7 We note the trial court did not entirely preclude
Defendants from making a mitigation of damages argument.
Indeed, the trial court gave the general mitigation of damages
instruction for personal injury as well as for past and future lost
earnings.
26
value of the services he received by admission of the unpaid
medical bills and by expert testimony.
IV. The Trial Court Did Not Abuse Its Discretion When It
Denied the Motion for Mistrial
Defendants next contend reversal is warranted because the
trial court prejudicially erred when it denied their motion for
mistrial. We disagree.
A. Proceedings Below
During his testimony, the defense billing expert explained
that to determine the reasonable value of a given medical service,
he looked at the amounts that various insurance plans, Medicare,
and workers’ compensation paid for such a service. During cross-
examination, plaintiff’s counsel asked the following:
“Q. . . . This is the quid pro quo of this case is the provider
gets benefits in return for certain pay schedules, true?
A. True.
Q. And then the member, who’s the person who gets the
services, like everyday people, they get the benefit of having
doctors to choose from that will accept those payments. You
agree?
A. I do.
Q. You have to be a member to get that quo part of the
quid pro, right?
A. Membership has its privileges.”
Outside the presence of the jury, defense counsel argued
that plaintiff’s counsel was getting close to “painting a picture in
the jurors’ minds that Mr. Qaadir did not have insurance, and
therefore looking at any analysis with insurance [was] unfair.”
The trial court disagreed, finding, “he hasn’t implied that his
client has or does not have insurance. He just is arguing that
27
your expert didn’t consider the non-insurance issue model.”
In any case, the court interpreted Pebley and Ochoa to hold
“whether somebody has insurance or doesn’t have insurance is
really not relevant as to what the reasonable value is.”
During his rebuttal closing argument, plaintiff’s counsel
argued, “Membership has its privileges. Of course it does if
you’re in the plan. There’s no evidence of that.” Plaintiff’s
counsel later referred to the defense expert as “Mr. membership
has its privileges.” Defense counsel moved for a mistrial outside
of the jury’s presence on the ground plaintiff’s counsel implied
Qaadir was uninsured. Defense counsel argued plaintiff’s
counsel’s argument opened the door to the issue of insurance,
warranting a mistrial. According to defense counsel, he would
have presented a different damages scenario if the trial court had
not precluded him from presenting evidence Qaadir was insured.
The trial court denied the motion. It found “the evidence
that was presented was clearly that . . . there’s different
payments if somebody has insurance versus if someone doesn’t
have insurance . . . and the difference[s] are reasonable, and I
think he was fairly commenting on that, not directing that the
plaintiff—specifically about the plaintiff’s situation. More about
how the expert went about determining his numbers.”
B. Analysis
We review a denial of a motion for mistrial for abuse of
discretion. (Pope v. Babick (2014) 229 Cal.App.4th 1238, 1248.)
“[T]he trial judge, present on the scene, is obviously the best
judge of whether any error was so prejudicial to one of the parties
as to warrant scrapping proceedings up to that point.”
(Blumenthal v. Superior Court (2006) 137 Cal.App.4th 672, 678.)
“The fundamental idea of a mistrial is that some error has
28
occurred which is too serious to be corrected, and therefore the
trial must be terminated, so that proceedings can begin again.
[Citation.]” (Ibid.)
Taken in context, the record shows the trial court’s
characterization of counsel’s rebuttal argument was accurate;
counsel’s statements did not indicate to the jury that his client
did not have insurance but were comments directed to the
defense expert’s testimony. Accordingly, there was no error,
much less prejudicial error sufficient to justify terminating the
trial and beginning anew.
V. The Trial Court Did Not Abuse Its Discretion When It
Denied a Request for an Indefinite Trial
Continuance
Defendants argue the trial court abused its discretion when
it denied their motion for a continuance to allow time for their
expert to recover from heart surgery or to retain a new expert.
We are not persuaded.
A. Proceedings Below
During voir dire on January 7, 2020, Defendants were
informed their vocational rehabilitation expert, Gene Bruno,
would be “unavailable to testify until at least March” because he
was suffering from complications as a result of recent heart
bypass surgery. Defense counsel was informed of Bruno’s
surgery in early December after the final status conference and
after they had confirmed his availability. At that time, they were
assured he would still be able to testify in January. Defense
counsel first learned of Bruno’s complications on January 7, and
requested a trial continuance that day. He acknowledged he was
“told it will be at least March, without any definitive commitment
29
as to when he’s going to be available.” Defense counsel estimated
Bruno was 70 to 80 years old.
Defense counsel described Bruno as the defense’s “most
important witness” regarding future lost earnings, of which
Qaadir claimed over $1,000,000 in damages. He expected Bruno
to testify about whether Qaadir could have returned to work
earlier and, if so, in what capacity. Bruno would also opine that
Qaadir’s future lost earnings totaled $60,000. Plaintiff’s counsel
opposed a continuance, suggesting Defendants could present
Bruno’s videotaped deposition at trial. Counsel informed the
court that Bruno’s deposition was taken after Qaadir’s vocational
rehabilitation expert was deposed, so he had the opportunity to
rebut the other expert’s testimony.
The trial court denied the continuance on the ground Bruno
affirmed he had offered his full and complete opinions at the
deposition. Further, Bruno was precluded from offering any new
opinions at trial under Kennemur v. State of California (1982)
133 Cal.App.3d 907, 920. As a result, Defendants would not be
unduly prejudiced by use of the videotaped deposition instead of
live testimony. At trial, Defendants read portions of Bruno’s
deposition testimony. Plaintiff played portions of Bruno’s
deposition videotape.
B. Legal Principles
California Rules of Court, rule 3.1332 (rule 3.1332), governs
motions for continuance of a trial and cautions: “To ensure the
prompt disposition of civil cases, the dates assigned for a trial are
firm. All parties and their counsel must regard the date set for
trial as certain.” (Rule 3.1332(a).) Trial continuances are
“disfavored,” and “[t]he court may grant a continuance only on an
affirmative showing of good cause requiring the continuance.”
30
(Rule 3.1332(c).) The unavailability of an essential expert
witness due to illness may be an indication of good cause. (Rule
3.1332(c).)
The trial court must consider all relevant facts and
circumstances surrounding the continuance, including: “[t]he
proximity of the trial date” (rule 3.1332(d)(1)); “[t]he length of the
continuance requested” (rule 3.1332(d)(3)); “[t]he availability of
alternative means to address the problem that gave rise to the
motion or application for a continuance” (rule 3.1332(d)(4)); “[t]he
prejudice that parties or witnesses will suffer as a result of the
continuance” (rule 3.1332(d)(5)); and “[w]hether the interests of
justice are best served by a continuance, by the trial of the
matter, or by imposing conditions on the continuance” (rule
3.1332(d)(10)).
“When a continuance is sought to secure the attendance of
a witness, the defendant must establish ‘he had exercised due
diligence to secure the witness’s attendance, that the witness’s
expected testimony was material and not cumulative, that the
testimony could be obtained within a reasonable time, and that
the facts to which the witness would testify could not otherwise
be proven.’ ” (People v. Jenkins (2000) 22 Cal.4th 900, 1037
(Jenkins).)
We review the denial of a motion to continue the trial date
for abuse of discretion. (Avant! Corp. v. Superior Court (2000) 79
Cal.App.4th 876, 881–882.)
C. Analysis
Given the guidelines specified in rule 3.1332 and Jenkins,
we conclude the trial court did not abuse its discretion when it
denied Defendants’ request for a trial continuance. The trial
court properly considered the burden an open-ended continuance
31
would place upon the parties, witnesses, jurors, and the court,
particularly when the trial had already begun. It concluded little
or no prejudice would result from a denial of the continuance
because Bruno’s deposition testimony, which set forth his full and
complete opinions, could be presented in place of his live
testimony.
Defendants assert they were deprived of a fair hearing
because the discovery deposition was not a substitute for live
testimony. Defendants, however, fail to point to any testimony
that Bruno could have presented “live” that was not included in
his deposition. Neither are we persuaded by the cases cited by
Defendants for the proposition that testimony given through a
video or by a reader are disfavored forms of testimony because it
does not allow the trier of fact the same ability to judge
credibility as live testimony does. (DiRienzo v. Philip Services
Corp. (2nd Cir. 2002) 294 F.3d 21, 30; Elkins v. Superior Court
(2007) 41 Cal.4th 1337, 1358; Meiner v. Ford Motor Co. (1971) 17
Cal.App.3d 127, 140–141.) None of these cases hold that a trial
court abuses its discretion to deny an open-ended continuance to
allow an expert witness, whose deposition testimony has been
videotaped and who has presented his full and complete opinions
in the deposition, to testify at trial. Given these circumstances,
Defendants fail to show the trial court abused its discretion in
denying their request for continuance or that the denial was
prejudicial. (Pietak, supra, 90 Cal.App.4th at p. 610.)
Defendants cite Pham v. Nguyen (1997) 54 Cal.App.4th 11
(Pham), for the proposition that a trial court abuses its discretion
as a matter of law when it denies a trial continuance when an
expert is “unavailable because of an ‘unavoidable’ emergency.”
(Id. at p. 18.) Pham is inapplicable because it relied on the rule
32
specified in section 9 of the Standards of Judicial Administration,
which had provided that “the necessity for the continuance
should have resulted from an emergency occurring after the trial
setting conference that could not have been anticipated or
avoided with reasonable diligence and cannot now be properly
provided for other than by the granting of a continuance.”
(Former Cal. Stds. Jud. Admin. § 9, repealed Jan. 1, 2004.) The
Judicial Council repealed section 9 in 2004 and it does not apply
to this matter. (Oliveros v. County of Los Angeles (2004) 120
Cal.App.4th 1389, 1399.) Instead, as we set out above, the trial
court properly relied on the guidance provided by rule 3.1332 to
craft an alternative means for Defendants to present Bruno’s
opinions to the jury.
We are similarly not persuaded by Jurado v. Toys “R” Us,
Inc. (1993) 12 Cal.App.4th 1615 (Jurado) to find prejudicial error.
In Jurado, the plaintiff’s treating physician ignored a properly-
served subpoena and was unavailable to testify at trial because
he was in Europe. Before trial began, the plaintiff moved for a
brief continuance or placement on the master calendar court’s
trailing calendar. The request was denied. Without a medical
witness to testify to the plaintiff’s injuries in a slip and fall claim,
the case was dismissed. (Id. at p. 1617.) The appellate court
reversed, holding “there were other less drastic and more
appropriate means to redress the situation and the trial court’s
refusal to trail the case for a few days was an abuse of
discretion.” (Id. at p. 1620.)
Notwithstanding that Jurado also relied on repealed
section 9 of the Standards of Judicial Administration, it is
distinguishable on its facts. The Jurado plaintiff requested a
“brief” continuance before trial, not an open-ended one after trial
33
had begun as Defendants did. Moreover, unlike Bruno’s
videotaped deposition, there was no indication an alternative
means of presenting the medical testimony was available to the
plaintiff in Jurado.
In their reply brief, Defendants assert they alternatively
sought a continuance to retain another expert to testify in
Bruno’s place. We reject this argument for the same reasons:
trial had already begun; this was an indefinite continuance
because there was no indication when Defendants might be able
to retain a new expert, much less how much time it would take
for that expert to become familiar with the facts of the case and
to be deposed; and a reasonable alternative to presenting Bruno’s
live testimony existed.
VII. Defendants Have Failed to Show the Jury’s Damages
Award Suggested Passion, Prejudice, or Corruption
Defendants next argue the jury’s damages award of more
than three million dollars was excessive. In particular,
Defendants contend the cumulative effect of the trial court’s
errors, including admission of evidence of the unpaid medical
bills and plaintiff’s counsel’s purported claim to the jury that
Qaadir lacked insurance, resulted in an excessive economic
damages award. The excessive economic damages award, in
turn, resulted in an excessive noneconomic damages award.
Additionally, Defendants contend Bruno’s absence from trial
resulted in an excessive award for future loss of earnings. We are
not persuaded.
A. Legal Principles
“ ‘The amount of damages is a fact question, first
committed to the discretion of the jury and next to the discretion
of the trial judge on a motion for new trial. They see and hear
34
the witnesses and frequently, as in this case, see the injury and
the impairment that has resulted therefrom. As a result, all
presumptions are in favor of the decision of the trial court
[citation]. The power of the appellate court differs materially
from that of the trial court in passing on this question. An
appellate court can interfere on the ground that the judgment is
excessive only on the ground that the verdict is so large that, at
first blush, it shocks the conscience and suggests passion,
prejudice or corruption on the part of the jury.’ ” (Bigler-Engler v.
Breg, Inc. (2017) 7 Cal.App.5th 276, 299 (Breg) quoting Seffert v.
Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506–507
(Seffert).)
In making this assessment, the court may consider, in
addition to the amount of the award, indications in the record
that the fact finder was influenced by improper considerations,
including inflammatory evidence, misleading jury instructions,
improper argument by counsel, or other misconduct. (Breg,
supra, 7 Cal.App.5th at p. 299.)
B. Analysis
Here, Defendants assert the trial court’s various purported
errors led to excessive economic and noneconomic damages
awards. Where we have determined error occurred—in
admitting evidence of the unpaid medical bills without first
requiring Qaadir to lay the foundation for its admissibility and
admitting evidence of the paid medical bills—we have concluded
those errors were harmless. As to the remaining issues raised by
Defendants, we have determined the trial court did not err and
thus, the jury could not have been influenced by improper
argument by counsel, erroneous exclusion of evidence,
35
inflammatory evidence, or other misconduct because none of
those errors occurred.
In any event, Defendants focus on evidence that would
support a result that is contrary to what the jury found. The
standard of review, however, requires us to do the opposite:
“In considering the contention that the damages are excessive the
appellate court must determine every conflict in the evidence in
respondent’s favor, and must give him the benefit of every
inference reasonably to be drawn from the record [citation].”
(Seffert, supra, 56 Cal.2d at p. 508.)
Here, the record shows the jury awarded damages which
fell between Qaadir’s and Defendants’ experts’ calculations.
For past medical expenses, the jury awarded $532,000, which
was $100,000 less than Qaadir’s expert’s opinion of the
“reasonable value” of the services and approximately $350,000
over the defense expert’s valuation. For future medical damages,
the jury awarded $500,000, which was $200,000 less than
Qaadir’s valuation and almost $100,000 over the defense’s
valuation.
We cannot say the jury’s past medical damages awards
shocked the conscience given the extensive medical treatment
required to treat Qaadir’s injuries, including spinal fusion
surgery, the installation of a spinal-cord stimulator, and
hardware removal and posterior fusion surgery. Neither did the
future medical damages award suggest “passion, prejudice, or
corruption” on the part of the jury given the testimony from
Dr. Mobin that Qaadir will require additional surgeries, imaging
studies, physical therapy, and ongoing care in the future.
We reach the same conclusion with respect to the jury’s
award of $900,000 for future lost earnings. Defendants argue
36
their inability to present Bruno’s “live” testimony led the jury to
disregard his deposition testimony entirely. This is rank
speculation and we need not further entertain this baseless
theory.
Defendants also contend the future lost earnings award
was not supported by the evidence. To the contrary, the record
shows Qaadir presented testimony from a vocational-
rehabilitation expert that Qaadir would never work as a truck
driver again and was limited to office-based clerical work in the
future at a much lower salary. Qaadir’s economist calculated the
present value of his future loss of earnings to be $972,392. That
is substantial evidence to support the jury’s award of $900,000.
We reject Defendants’ efforts to reargue the evidence and have us
reach a conclusion contrary to the jury’s findings. (In re Marriage
of Balcof (2006) 141 Cal.App.4th 1509, 1531 [appellate courts do
no reweigh evidence or reassess the credibility of witnesses].)
DISPOSITION
The judgment is affirmed. Qaadir to recover his costs on
appeal.
CERTIFIED FOR PUBLICATION
OHTA, J. *
We Concur:
GRIMES, Acting P. J. WILEY, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
37