David v. Hernandez ( 2017 )

Filed 7/25/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
JOSHUA DAVID, 2d Civil No. B270133
(Super. Ct. No. 56-2011-00391849-CU-
Plaintiff and Respondent, PA-VTA)
(Ventura County)
v.
DAVID HERNANDEZ et al.,
Defendants and Appellants.
David Hernandez and D & H Trucking appeal from a
$3.3 million personal injury judgment entered against them.1
Appellant’s truck was involved in a collision with a minivan
driven by respondent Joshua David, who sustained serious
physical injuries.
This is the second appeal in this matter. In the first
appeal, we reversed a judgment entered in appellant’s favor after
Hernandez is doing business as D & H Trucking. We
1
consider Hernandez to be the sole appellant. All future
references to appellant are to Hernandez personally. (See
Providence Washington Ins. Co. v. Valley Forge Ins. Co. (1996) 42
Cal. App. 4th 1194, 1200.)
a jury trial. (David v. Hernandez (2014) 226 Cal. App. 4th 578,
592.)
On retrial, the jury found that it is reasonably certain
respondent will need four future shoulder surgeries. Appellant
concedes that one future shoulder surgery is reasonably certain.
He contends that the evidence is insufficient to support the need
for three subsequent shoulder surgeries. He also contends that
the trial court erroneously excluded expert testimony that
respondent’s ability to drive was impaired by marijuana use. We
affirm.
Facts
Appellant is a truck driver. At the time of the
collision in June 2010, he was driving a tractor that was hauling
a flatbed trailer. The trailer was 45 feet long. It was carrying a
load of cement that weighed approximately 45,000 pounds.
While traveling northbound on Pacific Coast
Highway, appellant drove across the southbound lane and pulled
into a parking area next to that lane. The tractor-trailer was
facing north against oncoming southbound traffic. Appellant
parked and took a nap. When he awoke, it was getting dark. He
decided to continue northbound on Pacific Coast Highway.
Appellant turned on his lights, drove across the southbound lane,
and turned left into the northbound lane.
Respondent was driving a minivan southbound on
Pacific Coast Highway. The left front of the minivan crashed into
the middle of the left side of the flatbed trailer. “The point of
impact was squarely in the southbound lane.” At the time of
impact, appellant’s truck was traveling at about 10 to 15 miles
per hour. The minivan was traveling at about 45 miles per hour.
2
Respondent remembered nothing about the collision.
Natalie Pierson was in the front passenger seat of the minivan.
She saw the tractor’s headlights in the northbound lane. She
then “saw [respondent’s] eyes go big.” She looked forward and
saw “a dark object that was right in front of [her]” in the
southbound lane. The dark object was the left side of the flatbed
trailer. In her “peripheral vision,” Pierson saw respondent “turn
the wheel to the right.” The next thing that happened was “the
crash.”
Respondent “was trapped in the driver’s seat.” It
took about 45 minutes to extricate him from the vehicle. His
injuries included “an open fracture in his [left] shoulder. . . .
[T]he bone was protruding through the skin.”
Jury Verdict
On retrial the jury found that appellant was
negligent and that his negligence was a substantial factor in
causing respondent’s injuries. It also found that respondent was
negligent but that his negligence was not a substantial factor in
causing his injuries. It awarded respondent damages of
$3,317,580. The damages include future medical expenses for
four shoulder surgeries at a cost of $161,750 per surgery.
Respondent’s Motion in Limine to Exclude Expert Testimony
At the first trial the court excluded evidence of
respondent’s marijuana use. At the retrial appellant again
sought to present expert testimony to show that, at the time of
the collision, respondent’s ability to drive was impaired by his
consumption of marijuana. Appellant’s expert witness was Dr.
Marvin Pietruszka.
Respondent filed a pretrial motion in limine to
exclude Dr. Pietruszka’s testimony. No live testimony was
3
presented at the hearing on the motion. The parties presented
written materials. A “physician progress note” shows that,
immediately after the collision, respondent told an emergency-
room physician that he had “occasional[ly]” used marijuana but
had not consumed it within the past 36 hours.
A urine sample was collected from respondent in the
emergency room. A urine drug screen was positive for THC
(tetrahydrocannabinol). THC is “the psychoactive ingredient” in
marijuana. (People v. Bergen (2008) 166 Cal. App. 4th 161, 164.)
There are two types of THC - active (also known as hydroxy THC)
and inactive (also known as carboxy THC). During oral
argument at the hearing on the motion in limine, respondent’s
counsel explained to the trial court: “An active metabolite means
that the ingredients are there that can potentially make a person
impaired. If it’s an inactive metabolite, that means it’s still there
in the fatty tissue, but it’s not doing anything to anybody.”
Appellant did not dispute counsel’s explanation.2
2
See People v. Derror (2006) 475 Mich. 316, 321-322 [715
N.W.2d 822, 826], overruled on other grounds in People v. Feezel
(2010) 486 Mich. 184, 188 [783 N.W.2d 67, 71]: “The experts
agreed that carboxy THC [inactive THC] is a ‘metabolite,’ or
byproduct of metabolism, created in the human body during the
body’s biological process of converting marijuana into a water-
soluble form that can be excreted more easily. Its presence in the
blood conclusively proves that a person ingested THC at some
point in time. However, carboxy THC itself has no
pharmacological effect on the body and its level in the blood
correlates poorly, if at all, to an individual’s level of THC-related
impairment. In fact, carboxy THC could remain in the blood long
after all THC has gone, as THC quickly leaves the blood and
enters the body’s tissues. [Citation.]”
4
Respondent’s test result does not show the
concentration of THC in his urine or the extent to which the THC
is active or inactive. To test positive, the THC concentration had
to be at least “50 NG/ML” - 50 nanograms per milliliter. The
Laboratory Report states: “This urine drug screen provides only
a preliminary test result. These results are to be used for
medical purposes only. [¶] A more specific alternate chemical
method must be used in order to obtain a confirmed analytical
result.”3
Dr. Pietruszka’s Proposed Trial Testimony
Dr. Pietruszka’s proposed trial testimony, as set forth
in his deposition, was as follows: In the emergency room after
the collision, respondent had “very high blood pressure,” a “rapid
pulse,” and a “rapid respiratory rate.” These symptoms, as well
as his “loss of memory,” are consistent with being under the
influence of marijuana. But stress and traumatic injuries can
cause the same symptoms. “Obviously stress plays a role. He
was under stress . . . because of the accident.”
Based on the urine drug screen test result, “[w]e
know that [respondent] had at least 50” nanograms of THC per
milliliter of urine. But “in most . . . of the positives [positive
tests] that [Dr. Pietruszka has] seen, . . . you can easily find 100
nanograms [of THC per milliliter].”
The “active component” of THC “is still found 36
hours later in urine samples” and “could be found up to 48 hours
3
In argument before this court, appellant conceded that,
based on the type of preliminary urine drug screen test
administered to respondent, no California case has permitted an
expert to opine that a driver was under the influence of
marijuana.
5
later.” “The literature suggests that . . . [t]here should have been
a small amount of active metabolite in [respondent’s] urine.” But
the amount of active metabolite “wasn’t measured.” “[T]he
literature supports that there is an effect even 36 hours later,
and that effect can translate into a negative effect on driving
performance, increased risk of accidents, visual difficulties, a
delayed . . . response braking, and that type of response, reaction
time. And that would lead to a motor vehicle accident.”
Dr. Pietruszka continued: “[T]he fact that I believe
that [respondent] had active THC . . . in his system . . . , the fact
that he was in an accident, the fact that he’s got tachycardia
[rapid pulse], that he’s got high blood pressure, the fact that his
respiratory rate is high, he’s got amnesia, he’s got all these
symptoms, his visibility could have been reasonably [a]ffected
by . . . the use of THC, his reaction time could be slowed by a
drug that reduces reaction time, his attention is decreased, I
believe to a reasonable degree of medical certainty, yes, he was
under the influence [of marijuana].”
Declaration of Dr. McGee
Respondent’s expert, Dr. Terence McGee, declared
that, based on the urine drug screen test result, “it [cannot] be
determined if the THC [in respondent’s urine] is active or
inactive.”
Declaration of Dr. Tinsley
Dr. Robeson Tinsley is an emergency-room physician
who treated respondent immediately after the collision. Dr.
Tinsley declared: “[B]ased upon my training, expertise and
experience, I am aware that THC can be captured in a patient’s
urine for weeks after use.” Respondent “showed no evidence of
6
intoxication.” “I believed within a likely degree of medical
certainty that the patient was not impaired in any way.”
Trial Court’s Ruling
The trial court stated: “I don’t think there’s adequate
foundation for the conclusions that the defense wants to put on
here. So I will grant the motion in limine.” The court reasoned:
“[W]e have a problem with what is only a preliminary test and
then we have the problem with no foundation to show a
connection between the test result . . . and any impairment. And
it appears that [appellant’s] expert would be reasoning backward
from the fact that something untoward happened; therefore,
somebody must have been impaired.”
Exclusion of Expert Testimony
“‘Evidence Code section 801, subdivision (b), states
that a court must determine whether the matter that the expert
relies on is of a type that an expert reasonably can rely on “in
forming an opinion upon the subject to which his testimony
relates.” . . . We construe this to mean that the matter relied on
must provide a reasonable basis for the particular opinion
offered, and that an expert opinion based on speculation or
conjecture is inadmissible.’ [Citation.]” (Sargon Enterprises, Inc.
v. University of Southern Cal. (2012) 55 Cal. 4th 747, 770
(Sargon).) “Thus, under Evidence Code section 801, the trial
court acts as a gatekeeper to exclude speculative or irrelevant
expert opinion.” (Ibid.) “‘A court may conclude that there is
simply too great an analytical gap between the data and the
opinion proffered.’ [Citation.]” (Id. at p. 771.)
“A trial court exercises discretion when ruling on the
admissibility of expert testimony under Evidence Code section
801, subdivision (b). If [as here] the court excludes expert
7
testimony on the ground that there is no reasonable basis for the
opinion, we review the exclusion of evidence under the abuse of
discretion standard. [Citations.]” (In re Lockheed Litigation
Cases (2004) 115 Cal. App. 4th 558, 564.) “The trial court has
broad discretion in deciding whether to admit or exclude expert
testimony [citation] . . . .” (People v. McDowell (2012) 54 Cal. 4th
395, 426.) “A ruling that constitutes an abuse of discretion has
been described as one that is ‘so irrational or arbitrary that no
reasonable person could agree with it.’ [Citation.]” (Sargon,
supra, 55 Cal.4th at p. 773.)
“The trial court properly acted as a gatekeeper to
exclude speculative expert testimony. Its ruling came within its
discretion.” (Sargon, supra, 55 Cal.4th at p. 781.) It is a matter
of speculation whether respondent was under the influence of
marijuana at the time of the collision. Dr. Pietruszka testified
that the “active component” of THC “is still found 36 hours later
in urine samples” and “could be found up to 48 hours later.” But
there is no evidence that respondent used marijuana within 48
hours before he gave the urine sample. Respondent told an
emergency-room physician that he had not used marijuana
within the past 36 hours. He did not say when he had last used
it. According to Dr. Tinsley, “THC can be captured in a patient’s
urine for weeks after use.”
Dr. Pietruszka opined that, at the time of the
collision, respondent had active THC in his system. Appellant
argues that Dr. Pietruszka’s opinion is supported by a medical
textbook, Marijuana and the Cannabinoids, edited by Mahmoud
ElSohly, Ph.D. Appellant asserts: “That book contains data
showing that when a urine test uses a threshold of 50 ng/ml of
THC - like the test performed on [respondent] - a positive result
8
indicates that both the inactive and active forms of THC are
present. A chart in the book shows that for every patient who
had a measurement of 50 ng/ml of the inactive metabolite . . . ,
that patient also had some amount of the active metabolite . . . .”
“[This] data disproves [respondent’s] argument that he could test
positive for metabolites in excess of 50 ng/ml and have only the
inactive form of THC in his system.”
The chart shows the relative concentrations of THC-
COOH (inactive THC) and 11-OH-THC (active THC) in the urine
of persons who tested positive for cannabis. Persons with
approximately 50 ng/ml of inactive THC also had some amount of
active THC in their urine. The chart does not indicate when the
tested persons last used marijuana. They may have used it
within 36 hours before the test. The chart, therefore, does not
prove that respondent had active THC in his system. Respondent
denied using marijuana within 36 hours before the test.
Even if respondent’s urine contained active THC, it is
speculative whether the amount was sufficient to impair his
ability to drive a motor vehicle. Dr. Pietruszka testified that the
“amount of active metabolite” in respondent’s urine “wasn’t
measured.”
Moreover, the symptoms of marijuana use displayed
by respondent - high blood pressure, rapid pulse, rapid
respiratory rate, and memory loss - could have been caused by
stress and respondent’s traumatic injuries. Dr. Tinsley, who
examined respondent in the emergency room after the collision,
declared that he had “showed no evidence of intoxication.”
Appellant faults the trial court for granting
respondent’s motion in limine “without conducting an evidentiary
hearing under Evidence Code section 402 to examine the
9
scientific and medical support for Dr. Pietruszka’s opinions.” The
court cannot be faulted because appellant never requested an
evidentiary hearing under section 402. (See Doers v. Golden Gate
Bridge, Highway & Transp. Dist. (1979) 23 Cal. 3d 180, 184-185,
fn. 1; In re Marriage of Falcone (2008) 164 Cal. App. 4th 814, 826.)
Future Medical Expenses
The jury awarded respondent medical expenses for
four future shoulder surgeries at a cost of $161,750 per surgery.
Appellant argues, “[T]he testimony of [respondent’s] treating
physician [Dr. Norris] established that only one future shoulder
surgery is reasonably certain.” Thus, appellant asks us to reduce
the award for future medical expenses by $485,250.
Testimony of Dr. Norris
Dr. Tom Norris testified as follows: He operated on
respondent for the first time in 2011. Respondent’s left “humeral
head had collapsed down to a pancake” because of an infection
and lack of blood supply. (The humeral head is the ball part of
the ball-and-socket shoulder joint.) Respondent “didn’t have a
ball and a socket, he had just two flat plates essentially rubbing
together.” Dr. Norris removed the “necrotic humeral head”
(“[n]ecrosis is something that has died”) and replaced it with a
prosthesis. The stem of the prosthesis is titanium and the ball is
cobalt chrome. The stem “goes down part way” into the humerus
(the bone that runs from the shoulder to the elbow) and is fixed in
place with cement. The cobalt-chrome ball is attached to the
socket part of the shoulder joint.
Dr. Norris continued: Over time, the rubbing of the
metal ball against the socket will wear away the socket.
According to “published research [that] follows humeral head
replacements over a 15-year period,” the ball “will actually shift
10
into the shoulder blade about half a millimeter to a millimeter a
year.” “At some point, [respondent] may need a cover for the
socket or to replace this kind of prosthesis with what is called a
‘reverse shoulder prosthesis.’ That would depend upon infection,
rotator cuff status, how much bone is worn away, whether or not
he needs bone grafts.” It is best to wait as long as possible before
performing surgery on the shoulder socket “because once he has
something done to the socket, that stuff can wear out in 10 or 15
years and then it needs to be redone. . . . One needs bone
grafts . . . to try to build the bone back.” “Given that he was 19
when [the prosthesis] was put in and that [the socket] will wear,
its [sic] probably an 80 to 90 percent chance that he will have
additional surgery going forward.”
Dr. Norris did not say when the 80 to 90 percent
certain shoulder surgery is likely to occur. Nor did he say how
many revision surgeries, if any, respondent will need.
Testimony of Dr. Tauber
Dr. Jacob Tauber, an orthopedic surgeon, testified as
an expert for appellant. Dr. Tauber noted that Dr. Norris had
performed a partial shoulder replacement on respondent - “[t]he
type of shoulder replacement . . . where you’ve replaced one side
[i.e., the ball] of the [ball-and-socket] joint.” “Because the
shoulder is a non-weight-bearing joint,” Dr. Tauber expected “to a
reasonable degree of medical certainty” that the partial shoulder
replacement would “last . . . if [respondent] acts prudently and
takes care of it.” It “could last him his lifetime if he protects it. If
he doesn’t protect it, that’s a different issue.” Dr. Tauber
disagreed with studies “suggesting that whether he does [protect
it] or he doesn’t, the shoulder is going to wear out at anywhere
from one to two millimeters a year until it gets to the point where
11
[respondent is] going to need a full shoulder replacement [i.e.,
replacement of both sides of the ball-and-socket joint].”4 The
studies are not “universally accepted.”
Dr. Tauber read Dr. Norris’s deposition.
Respondent’s counsel asked, “Dr. Norris is suggesting that
[respondent] is going to have a full shoulder replacement by the
year 2031, isn’t he?” Dr. Tauber replied: “I didn’t remember the
year, but that’s what he suggested. I knew that he was
recommending that or that he opined that he would need a full
replacement.” Counsel asked, “And then several revisions after
that?” Dr. Tauber responded, “That’s what he opined.”
Testimony of Edward Bennett
Edward Bennett testified that he is a “certified life
care planner expert.” He prepared a life care plan report for
respondent. It covers “future life care costs,” including “costs of
surgeries.” The number of future shoulder surgeries is based on
Dr. Norris’s statements. The report was not admitted in evidence
and is not included in the record on appeal.
Testimony of John Nordstrand
John Nordstrand, respondent’s forensic economist,
testified that the life care plan report prepared by Bennett
includes a shoulder “arthroplasty” surgery at age 31 and three
subsequent shoulder “revision” surgeries. An arthroplasty is a
joint replacement. Thus, the total number of future shoulder
surgeries is four. Bennett estimated that the cost of each surgery
would be $161,750.
4
According to Dr. Norris, studies suggest that the shoulder
will wear out at a rate of one-half to one millimeter, not one to
two millimeters, per year.
12
Sufficiency of the Evidence to Support
Four Future Shoulder Surgeries
Civil Code section 3283 provides, “Damages may be
awarded . . . for detriment . . . certain to result in the future.”
“Courts have interpreted this section to mean that a plaintiff may
recover if the detriment is ‘reasonably certain’ to occur.
[Citations.] It is for the jury to determine the probabilities as to
whether future detriment is reasonably certain to occur in any
particular case. [Citation.]” (Garcia v. Duro Dyne Corp. (2007)
156 Cal. App. 4th 92, 97 (Garcia); see also Ostertag v. Bethlehem
Shipbuilding Corp. (1944) 65 Cal. App. 2d 795, 807 [“from expert
testimony as to the medical probabilities it is for the jury to
determine whether future detriment is reasonably certain to
occur”].)
“A challenge in an appellate court to the sufficiency of
the evidence is reviewed under the substantial evidence rule.
[Citations.] . . . ‘“‘[T]he power of an appellate court begins and
ends with a determination as to whether there is any substantial
evidence, contradicted or uncontradicted,’ to support the findings
below. [Citation.] We must therefore view the evidence in the
light most favorable to the prevailing party, giving it the benefit
of every reasonable inference and resolving all conflicts in its
favor . . . .” [Citation.]’ [Citations.]” (Lenk v. Total-Western, Inc.
(2001) 89 Cal. App. 4th 959, 968.) Substantial evidence is
“evidence which is reasonable, credible, and of solid value . . .
such that some reasonable trier of fact could find that the
judgment and each essential element thereof was established by
the appropriate burden of proof.” (Rivard v. Board of Pension
Commissioners (1985) 164 Cal. App. 3d 405, 414 (Rivard).) The
13
appropriate burden of proof here is proof of reasonable certainty
by a preponderance of the evidence. (Evid. Code, § 115.)
Dr. Norris’s testimony constitutes substantial
evidence of reasonable certainty that respondent will undergo one
future shoulder surgery (the first surgery) at an undetermined
time. Dr. Norris opined, “Given that he was 19 when [the
prosthesis] was put in and that [the socket] will wear, its [sic]
probably an 80 to 90 percent chance that he will have additional
surgery going forward.”
Dr. Norris’s testimony does not constitute substantial
evidence that, after the first surgery, it is reasonably certain
respondent will require three additional surgeries at 15-year
intervals for a total of four future shoulder surgeries. Dr. Norris
did not opine when the first surgery is likely to occur. He
testified that, pursuant to “published research [that] follows
humeral head replacements over a 15-year period,” the cobalt-
chrome ball “will actually shift into the shoulder blade about half
a millimeter to a millimeter a year.” Only an expert can gauge
when the shifting of the ball will require further surgery, and Dr.
Norris did not testify on this point. Dr. Norris wanted to wait as
long as possible before performing surgery on the shoulder socket
“because once he has something done to the socket, that stuff can
wear out in 10 or 15 years and then it needs to be redone.”
(Italics added.) As used in this context, “can” means “may.” Dr.
Norris did not indicate the probability that, after the first
surgery, respondent’s shoulder socket would need to be redone
every 10 to 15 years.
Dr. Tauber’s testimony does not fill the gap in Dr.
Norris’s testimony. Dr. Tauber testified that in his deposition Dr.
Norris had opined that respondent would eventually need a full
14
shoulder replacement (the first surgery), but Dr. Tauber could
not remember when Dr. Norris believed the first surgery would
occur. Dr. Tauber further testified that Dr. Norris had opined
that, after the first surgery, respondent would need “several
revisions.” Dr. Tauber did not say that Dr. Norris believed
respondent would need three revisions at 15-year intervals. Nor
did he say whether Dr. Norris had indicated the probability of the
future revisions. Thus, based on Dr. Norris’s and Dr. Tauber’s
testimony, a reasonable trier of fact could not find that it is
reasonably certain respondent will need three future shoulder
revisions.
We are left with the testimony of Edward Bennett
and John Nordstrand. Before preparing his life care plan report,
Bennett spoke to Dr. Norris about the medical care respondent
would need over his lifetime. Bennett included in the report only
“those things that [respondent] will have to a reasonable degree
of medical probability.” Bennett’s “methodology” was to “[l]ook at
the records, contact the doctors, ask what is reasonably required
within a reasonable degree of medical probability and determine
the cost factors.” Bennett asked respondent’s doctors, “[W]ithin a
reasonable degree of medical probability what are the needs that
[respondent] has futuristically from a medical standpoint[?]”
However, in his testimony Bennett said nothing about
respondent’s need for future shoulder surgeries.
Nordstrand is the only witness who provided
information about the number and dates of respondent’s future
shoulder surgeries. He relied on Bennett’s life care plan report
and did not read Dr. Norris’s deposition. According to
Nordstrand, the report includes costs for a shoulder
“arthroplasty” surgery at age 31 and three subsequent shoulder
15
“revision” surgeries at 15-year intervals. The first revision would
occur at age 46, the second at age 61, and the third at age 76. It
is reasonable to infer that Dr. Norris told Bennett that, to a
reasonable degree of medical probability, respondent would
require these surgeries.
Nordstrand’s testimony about respondent’s future
surgeries consists of multiple hearsay statements - statements
made by Bennett in his life care plan report that were based on
statements made by Dr. Norris. Appellant did not object on
hearsay grounds to Nordstrand’s or Bennett’s testimony.
Therefore, the multiple hearsay statements are competent
evidence. (People v. Panah (2005) 35 Cal. 4th 395, 476.)
Appellant claims that the “hearsay statements
attributed to Dr. Norris cannot support the award” because “a
party cannot prove case-specific facts by having an expert repeat
hearsay statements.” Appellant relies on People v. Sanchez
(2016) 63 Cal. 4th 665. There, our Supreme Court held: “When
any expert relates to the jury case-specific out-of-court
statements, and treats the content of those statements as true
and accurate to support the expert’s opinion, the statements are
hearsay.” (Id. at p. 686.) Appellant forfeited the Sanchez
hearsay argument because he never made a hearsay objection.
(People v. Stevens (2015) 62 Cal. 4th 325, 333.)
That the multiple hearsay statements are competent
evidence does not mean that they constitute substantial evidence.
(See Gregory v. State Bd. of Control (1999) 73 Cal. App. 4th 584,
597 [“The admissibility and substantiality of hearsay evidence
are different issues”].) “‘Expert medical opinion . . . does not
always constitute substantial evidence . . . .’ [Citations.]”
(Lockheed Martin Corp. v. Superior Court (2003) 29 Cal. 4th 1096,
16
1110.) “[A]n expert’s opinion is no better than the reasons upon
which it is based. [Citations.]” (Ferreira v. Workmen’s Comp.
Appeals Bd. (1974) 38 Cal. App. 3d 120, 126.) “‘“The chief value of
an expert’s testimony . . . rests upon the material from which his
opinion is fashioned and the reasoning by which he progresses
from his material to his conclusion . . . .”’ [Citation.]” (People v.
Coogler (1969) 71 Cal. 2d 153, 166.) “Accordingly, whether [Dr.
Norris’s, Bennett’s, and Nordstrand’s] testimony was substantial
evidence in support of the [jury’s] findings must be determined by
the material facts upon which [Dr. Norris’s] opinion was based
and by the reasons given for his opinion.” (Hegglin v. Worker’s
Comp. App. Bd. (1971) 4 Cal. 3d 162, 169-170.)
As to the three future shoulder revisions at 15-year
intervals, the record discloses the material facts upon which Dr.
Norris’s opinion was based and the reasons for his opinion. Dr.
Norris testified that, over time, the rubbing of the metal ball
against respondent’s shoulder socket will wear away the socket.
The ball “will actually shift into the shoulder blade about half a
millimeter to a millimeter a year.” This evidence constitutes a
sufficient basis for Dr. Norris’s opinion that, to a reasonable
degree of medical probability, respondent will need a shoulder
socket replacement at age 31. Dr. Norris also testified that, “once
. . . something is done to the socket, that stuff can wear out in 10
or 15 years and then it needs to be redone.” This evidence
constitutes a sufficient basis for his opinion that, to a reasonable
degree of medical probability, respondent will need a revision
surgery every 15 years for a total of three future revisions.
Dr. Norris told Bennett that the four future surgeries
were necessary “within a reasonable degree of medical
probability.” This standard is not the same as the case law
17
standard requiring that future surgeries be “reasonably certain
to occur.” (Garcia, supra, 156 Cal.App.4th at p. 97.) But “[i]t is
‘not required’ for a doctor to ‘testify that he [is] reasonably certain
that the plaintiff would [need to undergo surgeries] in the future.
All that is required to establish future [surgeries] is that from all
the evidence, including the expert testimony, . . . it satisfactorily
appears that such [future surgeries] will occur with reasonable
certainty. [Citations.]’ [Citation.]” (Id. at pp. 97-98, first,
second, and second to last brackets in original, other brackets
added; accord, Regalado v. Callaghan (2016) 3 Cal.App.5th 582,
602 (Regalado).) “‘[I]t is generally a question for the [trier of fact]
to determine from the evidence whether or not the claimed
prospective detriment is reasonably certain to occur.’ [Citation.]”
(Ibid., last bracket added.)
Viewing all of the evidence in the light most favorable
to respondent, we conclude that a “reasonable trier of fact could
find” by a preponderance of the evidence that it is reasonably
certain respondent will need four future shoulder surgeries.
(Rivard, supra, 164 Cal.App.3d at p. 414; see Regalado, supra, 3
Cal.App.5th at p. 603 [based on evidence, including doctor’s
opinion that “Regalado would more likely than not need future
surgery,” the “jury could conclude it was reasonably certain that
Regalado would require a future spinal surgery”].)
18
Disposition
The judgment is affirmed. Respondent shall recover
his costs on appeal.
CERTIFIED FOR PUBLICATION.
YEGAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Vincent J. O’Neill, Judge
Superior Court County of Ventura
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Horvitz & Levy, Lisa Perrochet and Curt Cutting;
Law Offices of Mark G. Cunningham, Mark G. Cunningham, for
Defendants and Appellants.
Lowthorp Richards McMillan Miller & Templeman,
John H. Howard; Ferguson Case Orr Paterson, Wendy C. Lascher
and John A. Hribar, for Plaintiff and Respondent.