Gozlan v. Bailey CA2/2

Filed 4/25/22 Gozlan v. Bailey CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

ARIEL GOZLAN, B307087

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. BC655145)

ODETTE BAILEY,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Michael I. Levanas, Judge. Reversed with
directions.

Ford, Walker, Haggerty & Behar, John K. Paulson, and
Ashley S. Loeb for Defendant and Appellant.
 Panish Shea & Boyle, Ryan A. Casey, Nicholas W. Yoka;
The Ehrlich Law Firm, Jeffrey I. Ehrlich and Reid Ehrlich-Quinn
for Plaintiff and Respondent.

******
In April 2015, a Prius driven by Odette Bailey (defendant)
collided with an Infiniti sedan driven by Ariel Gozlan (plaintiff).
Plaintiff sued defendant for negligence. Defendant conceded her
negligence, but contested causation and damages. The jury
returned a special verdict finding that the collision did not cause
plaintiff’s injuries. The trial court overturned the jury’s verdict
on the ground that “clear and uncontradicted” evidence
established causation. The trial court’s ruling was error.
Accordingly, we reverse the new trial order and reinstate the
jury’s verdict.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
A. The collision
On April 23, 2015, plaintiff was driving an Infiniti Q50
down a street in Marina Del Rey, California. He was traveling at
25 to 30 miles per hour. Defendant was driving a Toyota Prius.
As defendant exited a parking lot driveway at 4 to 6 miles per
hour, the front end of her Prius hit the front passenger side of
plaintiff’s Infiniti. The impact pushed plaintiff’s car forward and
to the left, causing it to momentarily veer into oncoming traffic.
Neither car’s airbags deployed, and neither driver had any
visible marks or bruises.
Plaintiff and defendant immediately pulled over to
exchange information. They saw no need to dial 911, to call

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nonemergency police or an ambulance, or to seek medical
attention.
B. Plaintiff’s postcollision treatment
According to plaintiff, he started to feel pain later on the
day of the collision.
Four days after the collision, plaintiff visited a chiropractor
to report pain, chiefly in his lower back and down his left leg.
A month after the collision (in May 2015), plaintiff visited a
pain management doctor because he was still experiencing
“shooting pain” in both legs. The pain management doctor
ultimately gave plaintiff four steroid injections into his spine—in
July, August, and November 2015, and January 2016. According
to plaintiff, the injections mitigated but did not eliminate the
pain.
Just over nine months after the collision (in early February
2016), plaintiff visited a neurosurgeon, Dr. Khawar Siddique (Dr.
Siddique). Based on an MRI scan, Dr. Siddique diagnosed
plaintiff as having a herniated disc between his L4 and L5
vertebrae, meaning that inner material from the disc between
those vertebrae was bulging out of the rear of the vertebrae. On
March 29, 2016, Dr. Siddique performed a microdiscectomy
surgery on that disc by removing the portions that bulged out on
the left and right sides of the vertebrae. According to plaintiff,
this did not alleviate all of the pain. So in November 2016, Dr.
Siddique performed a spinal fusion surgery that removed the
entire disc between the L4 and L5 vertebrae, inserted a spacer in
place of the hollowed-out disc, and “fused” the L4 and L5
vertebrae to one another with screws.
In June 2017, plaintiff moved to Florida. He did not follow
up with Dr. Siddique until September 2019. During that two-

3
year period, plaintiff worked for his father’s general contracting
business; as part of his duties, plaintiff would lift and move bags
of cement, ceramic tile, vanities, toilets, and tool chests ranging
in weight from 50 to 80 pounds. When plaintiff met with Dr.
Siddique again, Dr. Siddique reported that the June 2017 fusion
had not “taken,” that plaintiff would need a second fusion
surgery, and that plaintiff would likely need a third fusion
surgery for adjacent vertebrae in the future.
II. Procedural Background
In March 2017, plaintiff sued defendant for negligence.1
The matter proceeded to a five-day jury trial in March
2020. Defendant stipulated that she was negligent, but disputed
causation as well as the extent of the $3.5 million in damages
plaintiff sought. As witnesses, plaintiff called the chiropractor
and pain management doctor who treated him, Dr. Siddique, a
few friends and relatives, and himself; he also read portions of
deposition testimony of defendant’s experts. As witnesses,
defendant called a neurosurgeon named Dr. Luke Macyszyn (Dr.
Macyszyn) as an expert, a biomechanical engineer as an expert,
the spinal surgeon who performed surgeries on plaintiff in 2011,
and herself.
The jury returned a special verdict. In response to the
question “Was [defendant’s] negligence a substantial factor in
causing harm to [plaintiff]?”, the jury answered, “No.”
Plaintiff moved for a new trial on the grounds that (1) the
evidence at trial did not support the jury’s finding of “no

1 Plaintiff also sued Bruce Bailey, the owner of the Prius
defendant was driving, but the parties do not explain, and the
record on appeal does not disclose, why the case did not proceed
to trial against Bruce Bailey.

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causation” because Dr. Macyszyn “testified in clear and explicit
words that [the] collision caused plaintiff’s injury” and
exacerbated the lower back injuries plaintiff had previously
suffered, (2) the trial court erred in allowing defendant’s
biomechanical engineer to testify, and (3) defendant’s counsel
improperly vouched for the expert neurosurgeon during closing
argument.
After further briefing, the trial court granted plaintiff’s
motion for a new trial. Citing Code of Civil Procedure section
657, subdivision (6),2 the court found that “a new trial is
required” because “the evidence was clear and uncontradicted
that [p]laintiff was injured as a result of the accident.” For
support, the court cited two passages of Dr. Macyszyn’s trial
testimony in which he testified that plaintiff had suffered an
injury and that the collision had exacerbated plaintiff’s lower
back injuries.
Defendant filed this timely appeal.
DISCUSSION
Defendant argues that the trial court erred in granting a
new trial under section 657, subdivision (6). Plaintiff responds
that the trial court’s ruling on this ground was correct and,
alternatively, that a new trial was warranted on two other
grounds.
I. Propriety of A New Trial Under Section 657,
Subdivision (6)
A trial court has two separate powers to grant a new trial
that relate to the quantum of evidence presented to the jury.
First, the court has the power to grant a new trial if the court

2 All further statutory references are to the Code of Civil
Procedure unless otherwise indicated.

5
independently concludes that the jury’s verdict is against the
weight of the evidence. (Barrese v. Murray (2011) 198
Cal.App.4th 494, 503; Mercer v. Perez (1968) 68 Cal.2d 104, 112
(Mercer); Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th
397, 413.) A verdict is against the weight of the evidence only if
the court is “convinced from the entire record . . . that the . . . jury
clearly should have reached a different verdict” (§ 657, subd. (6));
it is not enough that the court “merely . . . ‘would not have come
to the same result’” as the jury. (Kelly-Zurian, at p. 414;
Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 215-216.)
When exercising this power, the court effectively sits as a so-
called thirteenth juror who may “reweigh the evidence,”
“disbelieve witnesses,” and “draw reasonable inferences . . .
contrary to those of the [jury].” (Mercer, at p. 112.) A new trial
granted on this ground invokes the statutory authority to grant a
new trial due to the “[i]nsufficiency of the evidence” under
subdivision (6) of section 657. Second, the court has the power to
grant a new trial if the jury’s verdict is, “as a matter of law,”
“unsupported by substantial evidence.” (Sanchez-Corea v. Bank
of America (1985) 38 Cal.3d 892, 906-907 (Sanchez-Corea).) This
power is analogous to the power to grant a directed verdict
because it may be exercised only if the evidence, when construed
in the light most favorable to the jury’s verdict, is incapable of
supporting that verdict because it does not constitute substantial
evidence. (Ibid.; Fergus v. Songer (2007) 150 Cal.App.4th 552,
567 (Fergus).) A new trial on this ground invokes the statutory
authority to grant a new trial due to a verdict that “is against
law” under subdivision (6) of section 657.
A trial court’s grant of a new trial is generally reviewed for
an abuse of discretion (Oakland Raiders v. National Football

6
League (2007) 41 Cal.4th 624, 636 (Oakland Raiders); Jiminez v.
Sears (1971) 4 Cal.3d 379, 387), but how that standard is to be
applied turns on the specific ground for granting the new trial.
Where the trial court grants a new trial because, as a thirteenth
juror, the court concludes that the jury’s verdict is against the
weight of the evidence, we are tasked with asking whether the
trial court’s new trial ruling is supported by substantial evidence.
(Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412; People v.
Lindsey (1951) 105 Cal.App.2d 463, 465; see generally Escamilla
v. Department of Corrections & Rehabilitation (2006) 141
Cal.App.4th 498, 514-515.) But when the trial court grants a new
trial because the jury’s verdict is unsupported by substantial
evidence (and hence “against law”), we are tasked with asking
whether jury’s verdict is supported by substantial evidence (and
hence with reviewing de novo the trial court’s determination of
that question). (Fergus, supra, 150 Cal.App.4th at p. 567; Design
Built Systems v. Sorokine (2019) 32 Cal.App.5th 676, 686.)
Applying this standard, if we conclude that there is “any
substantial conflict in the evidence,” the jury’s verdict was not
“against law” and the trial court’s grant of a new trial was error.
(Los Angeles Unified School. Dist. v. Torres Constr. Corp. (2020)
57 Cal.App.5th 480, 509 (Torres), italics omitted; Opp v. Sykes
(1961) 194 Cal.App.2d 208, 211 [where “evidence is in conflict,”
new trial should not be granted].)
Although the trial court’s new trial ruling in this case cited
subdivision (6) of section 657 without explicitly specifying which
ground it was invoking (that is, whether it was invoking that
section’s “[i]nsufficiency of the evidence” ground or its “against
law” ground), the court’s reasoning unambiguously establishes
that it found the jury’s verdict to be “against law.” That is

7
because the court based its ruling on what it viewed as the “clear
and uncontradicted” evidence of causation, language that mirrors
the language used for more than a century to evaluate whether a
directed verdict should be granted. (E.g., Hess v. Ford Motor Co.
(2002) 27 Cal.4th 516, 527 [examining whether evidence is
“uncontroverted” in assessing whether to grant a directed
verdict]; Lompoc Produce & Real Estate Co. v. Browne (1919) 41
Cal.App. 607, 613; cf. McCown v. Spencer (1970) 8 Cal.App.3d
216, 226-227 [trial court, in granting a new trial, expressly relied
on both the “insufficient evidence” and “against law” grounds].)
It is also because the court did not expressly or implicitly reweigh
the evidence. Because we may infer the trial court’s ground for
granting a new trial from the reasoning set forth in its order, we
reject defendant’s argument that the ruling was procedurally
defective for not specifying its basis. (See Kralyevich v. Magrini
(1959) 172 Cal.App.2d 784, 788-790 [inferring grounds from
reasons for new trial provided in order]; see generally Oakland
Raiders, supra, 41 Cal.4th at p. 634 [discussing the statutory
requirement that trial court specify the grounds and reasons for
granting a new trial]; Previte v. Lincolnwood, Inc. (1975) 48
Cal.App.3d 976, 988 [reviewing court is “confined” “to the specific
reason or reasons given by the trial court for [its new trial]
order”], italics added.)
II. The Jury’s Verdict Is Supported By Substantial
Evidence
Because the trial court ruled that the jury’s special verdict
of no causation was “against law,” our task on appeal is to
ascertain whether there is substantial evidence—when viewing
the record in the light most favorable to the jury’s verdict—to
support that finding of no causation. (Fergus, supra, 150

8
Cal.App.4th at p. 567.) To establish that defendant is responsible
in tort for his injuries, plaintiff must prove that there is a
“reasonable probability” that defendant’s conduct—here, the
collision—was a “‘substantial factor’ in bringing about [his]
injur[ies].” (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 133;
Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 778; Soule
v. General Motors Corp. (1994) 8 Cal.4th 548, 572, 574.) Because,
as we detail below, there is a “‘substantial conflict in the
evidence’” on the issue of causation (Torres, supra, 57
Cal.App.5th at p. 509), there was substantial evidence to support
the jury’s verdict and therefore the trial court’s grant of a new
trial was error.
A. Evidence supporting a finding of causation
Plaintiff offered what boils down to a five-step factual
argument in support of his position that defendant’s negligence
caused the injuries for which he sought compensation.
First, plaintiff adduced evidence that, in 2010 or 2011, he
had injured his L4-L5 vertebrae on a carnival ride. That injury
caused him pain only on the right side of his body; a 2011 MRI
showed a herniated disc between the L4 and L5 vertebrae
bulging on the right side of his spine; and to address the pain,
plaintiff had two microdiscectomy surgeries (in the fall of 2011) to
remove the herniation. Plaintiff experienced no pain on the left
side of his body. As a result, plaintiff’s prior injury involved only
a right-side herniation of his L4-L5 disc.
Second, plaintiff adduced evidence that, after the surgeries
in 2011, plaintiff experienced no further pain from the injury and
had “pretty much fully recovered.”
Third, immediately after the collision with defendant in
2015, plaintiff started experiencing pain, numbness, and

9
tenderness on the left side of his body. MRI scans from June
2015 and March 2016 confirmed a recently herniated L4-L5 disc
bulging to the left.
Fourth, Dr. Siddique as well as plaintiff’s pain
management doctor opined that a herniated disc that bulges to
the left is a “completely” “new” and “different” “injury” than one
that bulges to the right, even as to the same disc.
Fifth and finally, because the two injuries are distinct and
because plaintiff went from no pain to pain on the left side
immediately after the collision, plaintiff’s chiropractor, plaintiff’s
pain management doctor, and Dr. Siddique each opined that the
herniation of plaintiff’s L4-L5 disc to the left was caused by the
collision.
B. Evidence supporting a finding of no causation
Defendant offered what amounts to four lines of attack to
counter, individually and collectively, plaintiff’s evidence of
causation.
First, defendant adduced evidence to contradict plaintiff’s
chief argument that the collision caused a left-side herniation to
the L4-L5 disc that was wholly distinct from the right-side
herniation to that same disc plaintiff previously suffered from
which plaintiff claimed he had fully recovered. Specifically, Dr.
Macyszyn testified that an MRI scan from 2012 as well as two
MRI scans from 2016 showed that plaintiff had suffered a single
herniation to the L4-L5 disc that “originate[d]” “to the right” side
of the spine, that the herniation (that is, the bulge) subsequently
migrated toward the center of the spine after plaintiff’s 2011
microdiscectomy surgeries (because those surgeries weakened the
disc wall), and that the herniation migrated toward the left after
the postcollision microdiscectomy surgery. Dr. Macyszyn opined

10
that the pre- and postcollision MRIs showed “almost [the] exact
same disc herniation,” and that Dr. Siddique’s contrary reading
was based on Dr. Siddique’s review of plaintiff’s spine from left-
right imaging of plaintiff’s spine rather than top-bottom imaging.
Other evidence supported Dr. Macyszyn’s opinion that there was
only one disc herniation and that that herniation predated the
collision: Plaintiff told his chiropractor that he experienced pain
on his left side back in 2010 and 2011; plaintiff’s disc started to
bulge again in 2012 after the 2011 microdiscectomy surgeries;
plaintiff’s prior spine surgeon opined that a person, like plaintiff,
with a bulging disc may not feel pain (hence explaining the
reported lack of pain between 2012 and 2015); and plaintiff
reported pain and weakness on his right side as well as his left
side after the collision. On the basis of this evidence, Dr.
Macyszyn opined that (1) it was “more likely than not . . . that
[the] disc herniation” Dr. Siddique and plaintiff’s treating doctors
attributed to the collision “was there” prior to the collision and
was caused—not by the accident—but instead by plaintiff’s “past
medical history,” including his two prior surgeries, the two disc
herniations, and his weight; and (2) it was “scientifically not true”
that the collision caused an entirely new and different left-side
injury.
Second, defendant adduced evidence that the collision was
incapable of causing a new and distinct injury of a herniation of
plaintiff’s L4-L5 disc to the left. Specifically, defendant called a
biomechanical engineer who opined that (1) the force of the
collision would have pushed plaintiff’s Infiniti to the left, thereby
pushing plaintiff’s body to the right and causing an impact on
plaintiff’s right side, not his left side, and (2) the force of impact
on plaintiff, given defendant’s slow speed at the time of impact,

11
was less than people experience in many every day activities
(such as plopping one’s self down onto a sofa from a height of six
inches). The biomechanical engineer’s opinion was corroborated,
to some extent, by plaintiff’s inability to “remember exactly” how
his body moved in the driver’s seat at the time of impact and by
the absence of any bruises or visible injuries to plaintiff.
Third, defendant adduced evidence that plaintiff—at a
height of six feet one inch and a weight of 325 pounds—was
“morbidly obese.” Being at such a weight is a “significant risk
factor” that can generate back pain and also created an
“increased rate of disc degeneration” between the time plaintiff
stopped seeing his prior spine surgeon in 2012 and the time of the
collision.
Lastly, defendant adduced evidence suggesting that
plaintiff’s postcollision reports of pain and injury were not to be
believed. Although plaintiff insisted at trial that his prior injury
caused him pain only on the right side of his body, plaintiff’s
chiropractor reported that plaintiff told him the pain and prior
microdiscectomy surgeries were on his left side. As Dr. Macyszyn
observed, plaintiff’s reports of the “sidedness” of his injury
“switche[d]” and were “inconsistent.” Although plaintiff initially
insisted at trial that he was not doing any “physically exerting”
labor while working for his father’s construction business in
Florida, after being confronted (outside the presence of the jury)
with surreptitious video footage showing him hauling heavy
materials around construction sites, plaintiff admitted to the jury
that he was lifting anywhere from 50 to 80 pounds worth of
cement, ceramic tile, vanities, toilets, and tool chests. This put
plaintiff in the position of insisting that his injury prevented him
from sitting, standing, or lying down for too long without pain,

12
but that his injury still allowed him to lug around close to 100
pounds of building materials and cabinetry.
* * *
As this analysis indicates, there was a “substantial conflict
in the evidence” on the issue of causation. This is not surprising,
as questions of causation are “‘ordinarily for the jury.’” (Raven H.
v. Gamette (2007) 157 Cal.App.4th 1017, 1029-1030; see also
Toste v. CalPortland Construction (2016) 245 Cal.App.4th 362,
369 [“When reasonable minds can differ as to the inferences to be
drawn from the evidence, causation must be decided by the jury
as an issue of fact.”].) More to the point, this conflict precludes
the grant of a new trial as being “against law.”
III. The Trial Court’s Contrary Ruling
The trial court’s finding of “clear and uncontradicted”
“evidence” that “[p]laintiff was injured as a result of the accident”
rests exclusively on two passages of Dr. Macyszyn’s testimony.
First, the court cited Dr. Macyszyn’s deposition testimony, which
was read at trial, that plaintiff suffered an “exacerbation of a
previous radiculopathy” “after” the collision. Second, the court
cited the following exchange between Dr. Macyszyn and
plaintiff’s counsel:
Q: [Plaintiff] had an injury. Correct, sir, from this
collision?
A: Yes. A minor osteo ligament strain; that is correct.
Q: That is still an injury . . .?
A: That’s correct.
We conclude that these two passages do not vitiate the
otherwise substantial conflict of evidence, detailed above, on the
issue of causation. We reach this conclusion for three reasons.

13
 First, both passages of Dr. Macyszyn’s testimony cited by
the trial court are premised solely on Dr. Macyszyn’s acceptance
of plaintiff’s reports of pain. With regard to the first passage, Dr.
Macyszyn testified that he “classified” plaintiff as experiencing
an “exacerbation of a prior radiculopathy” based on plaintiff’s
“report[] of leg pain.” Thus, the first passage in which Dr.
Macyszyn testifies that the collision “exacerbate[ed]” plaintiff’s
“previous radiculopathy” means nothing more than that plaintiff
reported pain after the collision. Because the sole “proof” of
plaintiff’s pain is plaintiff’s own testimony, Dr. Macyszyn’s
alleged “concession” of “exacerbation” was premised entirely on
accepting plaintiff’s testimony as true. With regard to the second
passage, Dr. Macyszyn explained that the “strain” plaintiff
suffered also came solely from plaintiff’s reports of pain.
Specifically, Dr. Macyszyn testified: “[B]ased on the fact that
[plaintiff] had pain, I said he had a strain.” Thus, the second
passage in which Dr. Macyszyn testifies that plaintiff suffered
the “injury” of a “strain” also means nothing more than that the
collision caused plaintiff to feel pain. Because the sole “proof” of
plaintiff’s pain is plaintiff’s own testimony, Dr. Macyszyn’s
alleged “concession” of “injury” is also premised entirely on
accepting plaintiff’s testimony as true. Indeed, Dr. Macyszyn
testified that there was “nothing objective[]” in plaintiff’s medical
records substantiating his subjective complaints. Although Dr.
Macyszyn testified that he, as a medical professional, was
obligated to accept plaintiff’s subjective reports of pain as true
and that he had no reason to believe that plaintiff was being
untruthful, the jury was free to come to a contrary conclusion
because juries are free to reject the factual premises of an
expert’s opinion. (In re Welch (2015) 61 Cal.4th 489, 519 [“An

14
expert’s opinion is only as good as the facts upon which his or her
opinion is based.”]; see, e.g., Maples v. Kern County Assessment
Appeals Bd. (2002) 103 Cal.App.4th 172, 198 [expert’s opinion
may be rejected if its premise is unsupported].) Here, as noted
above, there was ample evidence presented at trial casting doubt
on plaintiff’s credibility; thus, the jury was free to reject
plaintiff’s reports of pain and, in so doing, to reject Dr.
Macyszyn’s testimony of exacerbation and injury premised solely
on those reports of pain. (Christ v. Schwartz (2016) 2
Cal.App.5th 440, 455 [“A jury may conclude that a plaintiff who
testifies falsely concerning injuries suffered no injuries.”]; see
generally Beck Development Co. v. Southern Pacific
Transportation Co. (1996) 44 Cal.App.4th 1160, 1204 [“the
credibility of witnesses is generally a matter for the trier of fact
to resolve”].) What is more, we cannot overturn the jury’s implicit
finding that plaintiff was not credible because plaintiff’s
testimony was not so “‘clear, positive, and of such a nature that it
cannot rationally be disbelieved’” (Beck Development Co., at p.
1204); to the contrary, there was ample grounds on which the
jury could find plaintiff not to be credible.
Second, the trial court’s analysis focused on the two
snippets of Dr. Macyszyn’s testimony outside of their context.
Specifically, the court did not account for the fact that Dr.
Macyszyn’s alleged concessions of exacerbation and injury were
premised entirely on plaintiff’s subjective reports of pain. The
court also did not reconcile those two snippets with Dr.
Macyszyn’s ultimate opinion that the collision did not cause
plaintiff any further disc herniation or injury. How could Dr.
Macyszyn at the same time concede and dispute causation? In
evaluating the substantiality of evidence underlying a jury’s

15
verdict, a trial court must look to the evidence as a whole.
(Daugherty v. City & County of San Francisco (2018) 24
Cal.App.5th 928, 956 [“testimony taken out of context does not
constitute substantial evidence”]; People v. Smith (2018) 4
Cal.5th 1134, 1165 [same].)
Lastly, even if we were to construe Dr. Macyszyn as
espousing contrary opinions at the same time—namely, that the
collision caused no injury (based on his ultimate opinion) and
that the collision exacerbated plaintiff’s radiculopathy and caused
a strain (based on the snippets cited by the trial court)—it was up
to the jury to decide which portions of Dr. Macyszyn’s testimony
to credit and which not to credit. (Stevens v. Parke, Davis & Co.
(1973) 9 Cal.3d 51, 67 [“It is well settled that the trier of fact may
accept part of the testimony of a witness and reject another part
even though the latter contradicts the parts accepted.”].) The fact
that the jury credited one portion (the ultimate opinion) but not
the other (the snippets) does not mean that there was no
substantial evidence to support a finding of no causation based on
the ultimate opinion.
IV. Plaintiff’s Further Arguments
Plaintiff makes two categories of arguments in support of
the trial court’s ruling. We will discuss each separately.
A. The jury’s special verdict was “against law”
Plaintiff offers three further reasons (beyond the rationale
offered by the trial court) why the trial court’s finding that the
jury’s “no causation” finding was “against law.”
First, plaintiff contends that the biomechanical engineer’s
testimony cannot be considered as part of the substantial
evidence supporting the jury’s finding of no causation because the
engineer (1) offered no medical opinions and (2) was unqualified

16
to do so anyway. Of course, the reason why the biomechanical
engineer did not offer any medical opinions was because, as
explained below, the trial court partially granted plaintiff’s
motion to preclude such testimony. In any event, the engineer’s
more limited testimony regarding the physics of the accident still
contributed to the conflict in the evidence regarding causation:
The engineer testified about the direction of the forces caused by
the impact (pushing plaintiff away from the driver’s side door)
and the magnitude of those forces (less than many everyday
activities), and the jury was free to draw reasonable inferences
from that testimony about the physics of the collision. Contrary
to what plaintiff asserts on appeal, plaintiff’s trial testimony that
he was “shook up” by the collision does not somehow negate the
biomechanical engineer’s testimony; if anything, it demonstrates
that there was a conflict of evidence on the physics of the collision
that was properly left for the jury’s resolution.
Second, plaintiff contends that the jury’s verdict was
unsupported due to plaintiff’s testimony that he suffered no back
or leg pain between 2012 until the collision. Again, however,
plaintiff’s testimony is not some sort of evidentiary Kryptonite
that negates all of the contrary evidence presented by defendant
or negate the jury’s power to find plaintiff not to be credible.
(Accord, People v. Lee (2011) 51 Cal.4th 620, 635 [“It was for the
jury to decide whether [a] witness[] [is] credible, either in whole
or in part.”].)
Lastly, plaintiff contends that appellate courts must defer
to credibility findings made by the jury. Indeed they must.
Where, as is the case when reviewing a new trial granted because
the verdict is allegedly “against law,” our task is to assess
whether there was substantial evidence to support the jury’s

17
verdict. The jury’s verdict here necessarily rested on a subsidiary
finding that plaintiff was not a credible witness, and we may not
gainsay that subsidiary finding. Plaintiff cites cases requiring
appellate courts to defer to the trial court’s credibility findings in
granting a new trial motion, but those cases deal with new trials
granted due to the insufficiency of the evidence. As noted above,
that is not the ground for the trial court’s ruling in this case, so
the authority plaintiff cites is irrelevant.
B. Alternative grounds for affirmance
Section 657 instructs that an appellate court shall “affirm”
an order granting a new trial upon any possible ground stated in
the moving papers even if it is not relied upon by the trial court
(except insufficiency of the evidence or excessive damages, which
must be relied upon by the trial court as well). (§ 657; Sanchez-
Corea, supra, 38 Cal.3d at p. 905.) On appeal, plaintiff advances
two alternative grounds for affirming the grant of a new trial.3
1. Instructional error
Plaintiff argues that the trial court erred in instructing the
jury that it must decide whether there was causation (and,
relatedly, in allowing the issue of causation to be submitted to
the jury in the special verdict form). This was error, plaintiff
urges, because the uncontroverted evidence dictated a finding of
causation. Although instructional error can constitute an “error
of law” that may support a new trial under subdivision (7) of
section 657 (Caldwell v. Paramount Unified School Dist. (1995)
41 Cal.App.4th 189, 205), there was no instructional error here.
As described above, the evidence on the issue of causation was
disputed and there was substantial evidence to support a jury

3 Plaintiff does not advance the improper vouching argument
that he pressed below, so we will not discuss it further.

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finding of “no causation.” As a result, the court properly
submitted that question to the jury. (E.g., Hart v. Wielt (1970) 4
Cal.App.3d 224, 235 [where “substantial evidence” supports a
finding, trial court does not err in instructing on the issue and
submitting to the jury]; Kasunich v. Kraft (1962) 201 Cal.App.2d
177, 186 [“Each party is entitled to have his theory . . . of the case
submitted to the jury . . . where there is substantial evidence in
the record justifying the giving of the instructions.”].)
2. Admission of biomechanical engineer’s
testimony
Plaintiff also argues that the trial court erred in allowing
defendant’s biomechanical engineer to testify at all. The
erroneous admission of evidence constitutes an “error of law” that
can justify a new trial. (§ 657, subd. (7); Richard v. Scott (1978)
79 Cal.App.3d 57, 63-64 [error in admitting expert’s testimony is
a ground for a new trial].) We review a trial court’s evidentiary
rulings for an abuse of discretion. (People v. Flores (2020) 9
Cal.5th 371, 409.)
a. Pertinent facts
Defendant sought to call the biomechanical engineer to
opine on (1) the direction and magnitude of the forces involved in
the collision, and (2) how those forces could not have caused
plaintiff’s injuries. In response to a pretrial motion by plaintiff
arguing that none of the 16 studies the engineer cited involved
persons with prior spinal injuries, the trial court ruled that the
engineer could not testify about how the forces affected plaintiff
specifically (that is, the second opinion), but could testify about
the forces (that is, the first opinion) and could be cross-examined
on how the studies regarding those forces did not involve persons
like plaintiff with prior spinal injuries. As detailed above, the

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engineer limited his opinions to those regarding the direction and
magnitude of the forces, and did not tie them to plaintiff’s
injuries. Plaintiff also extensively cross-examined the engineer
on how the 16 studies did not involve persons with prior spinal
injuries.
b. Analysis
The trial court did not abuse its discretion in allowing the
biomechanical engineer to discuss the forces involved in the
collision notwithstanding the fact that the studies the engineer
cited did not involve persons with prior spinal injuries. The
engineer explained that the studies merely “highlighted [his]
opinions” and did not constitute “the totality of literature” he had
relied upon in coming to his conclusions. More to the point,
plaintiff cites no authority for the proposition that an expert’s
opinion is subject to exclusion if the representative studies the
expert relies upon do not involve subjects identical to the parties
in the case. (Cf. Evid. Code, §§ 801, 802, 720.) Rather than a
ground for exclusion, these differences are grist for the mill of
cross-examination. (E.g., People v. Fulcher (2006) 136
Cal.App.4th 41, 54 [“[a]ny erroneous factual assumptions by the
experts could be addressed through cross-examination of the
experts”].) Plaintiff cites Mason v. Rizzi (De. 2004) 89 A.3d 32 in
support of his position, but Mason is at best persuasive authority
and, more to the point, is inapt. Mason held that a trial court did
not abuse its discretion in excluding testimony from a
biomechanical engineer who sought to offer opinions regarding
how the forces of an accident affected a party with prior spinal
injuries when the engineer’s underlying data did involve persons
with similar prior injuries. (Id. at pp. 34-38.) The biomechanical
expert in this case never offered an opinion about how the

20
accident affected plaintiff; instead, he discussed the general
direction and magnitude of the forces involved as a matter of
physics and math, topics that do not turn on the identity of the
persons affected by those forces. Because the expert did not
relate those forces to this plaintiff, the concern in Mason is not
implicated in this case.
DISPOSITION
The order is reversed with directions to reinstate the
judgment in defendant’s favor. Defendant is entitled to her costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________, J.
HOFFSTADT

We concur:

_________________________, P. J.
LUI

_________________________, J.
CHAVEZ

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