King v. Willmett 8/9/10 CA3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: C059236

Case Date: 10/14/2010

Preview:Filed 8/9/10

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ---MICHAEL KING, Plaintiff and Appellant, v. CAROL WILLMETT, Defendant and Respondent. APPEAL from a judgment of the Superior Court of Sacramento County, Judy Holzer Hersher, Judge. Reversed with directions. Walker, Hamilton & Koenig, LLP, Walter H. Walker, III; Hinton, Alfert & Sumner, Scott H.Z. Sumner, Jeremy Lateiner for Plaintiff and Appellant. Hinton, Alfert & Sumner, Scott H.Z. Sumner, Jeremy Lateiner for amicus curiae on behalf of Plaintiff and Appellant. Mayall, Hurley, Knutsen, Smith & Green, Mark E. Berry, Jesmin Alam for Defendant and Respondent. In this case we primarily consider whether, in a negligence action against a nonpublic defendant, the reduction of a C059236 (Super. Ct. No. 06AS02165)

*

Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts II and III. 1

plaintiffs award of past medical expense damages to the dollar amount ultimately paid by the plaintiffs private health insurance to his health care providers is appropriate under the collateral source rule. In light of the public policy

conclusions expressed by our state Supreme Court and the Legislatures enactment of specific statutes governing the operation of the collateral source rule in limited kinds of cases, we conclude reduction is inappropriate in this case. Therefore, the trial court erred in reducing the award here.1 In the unpublished portion of this opinion, we reject plaintiffs other contentions of reversible error. We shall reverse the amended judgment on verdict and remand the matter to the trial court with directions to reinstate the jurys award of past medical expense damages and enter a new judgment in favor of plaintiff with interest and costs consistent with such award. BACKGROUND Plaintiff Michael King, an insurance defense attorney employed as the managing attorney for the Sacramento legal office for Farmers Insurance, was driving south on Highway 99 on the evening of August 27, 2004, when he was rear-ended by defendant Carol Willmett. According to plaintiff, he was hit

1

In fairness to the trial court, we note that, in reducing the award, it applied this courts decisions in Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, at page 1157 (Greer), and Hanif v. Housing Authority (1988) 200 Cal.App.3d 635, at pages 640-644 (Hanif). 2

three times.

Plaintiff got out of his car and went back to Defendant

defendants car where he spoke with defendant.

admitted responsibility for the accident several times and, at plaintiffs urging, wrote a note stating: "I, Carol J.

Willmett, take responsibility for rear-ending an 03 Bonneville driven by Mike King on 8/27/04 approximately 7:40 pm, south bound on Hwy 99, just north of Morada Lane in Stockton, CA. s/Carol J. Willmett." After the accident, plaintiff drove his damaged car to a Farmers Insurance claims office and then to a body shop. rented a car intending to continue his drive south, but he turned around after 10 miles or so because he was feeling pain and stiffness in his neck and shoulders. He did not go to the He

hospital, but went home where he rested, took over-the-counter pain medication, and used ice packs over the course of the weekend. Plaintiff went to see his primary care physician a few He was prescribed

days later when he continued to feel sore. medication and massage therapy.

Plaintiff also obtained

chiropractic treatment over the course of the next couple of months, which according to plaintiff, would be effective for a few days but did not resolve the problem. Plaintiffs

chiropractor testified plaintiff did not complain of any numbness, tingling or radiating pain. When plaintiff had a trial in Shasta County in late November through December 2004, his symptoms flared up under the stress of his work. Rest over the Christmas holiday helped, but

did not eliminate his pain. 3

Plaintiff returned to his chiropractor in January 2005 because of his ongoing symptoms. He described his level of pain

at this time as a two on a scale of 10, which was down from his initially reported level of six. He still had no weakness, His chiropractor felt

numbness, tingling or radiating pain.

plaintiffs prognosis was good and released him from treatment. In February 2005, plaintiff drove to Los Angeles to attend a meeting. During the drive and after he arrived, plaintiff

began to have tingling and numbness in his left upper back and into his left upper arm. Plaintiff went back to his The

chiropractor in March 2005 and reported these symptoms.

chiropractor suspected possible neurological involvement. Plaintiff decided to see a neurologist or neurosurgeon and a colleague recommended Dr. Laura Anderson. see Dr. Anderson in July 2005. spine X-rays and a MRI. Plaintiff went to

She recommended he have cervical

After obtaining those tests in October

2005, plaintiff returned to Dr. Anderson in December 2005 for evaluation and diagnosis. She told plaintiff he had nerve root

impingement at the C6-7 disk level on the left and recommended physical therapy and yoga, which plaintiff undertook. In early 2006, plaintiff decided to move back to Santa Rosa where he could manage the smaller Santa Rosa legal office. Plaintiff felt the move was necessary because of a decline in his stamina. Plaintiff was referred to a new neurosurgeon,

Dr. Samir Lapsiwala, whom he saw beginning in October 2006. Dr. Lapsiwala diagnosed plaintiff with degenerative disk disease and recommended continuing conservative treatment with physical 4

therapy.

If plaintiff continued to show weakness, plaintiff

would be a candidate for a surgical three-level fusion. As part of this action against defendant, plaintiff was seen in March 2007 by neurosurgeon Edward F. Eyster for an independent medical evaluation. According to Dr. Eyster,

plaintiffs October 2005 MRI showed extensive degenerative damage at most levels of plaintiffs spine, but it was worst at three specific disk levels. By the time Dr. Eyster saw

plaintiff, plaintiff was losing function in the C7 nerve root. Dr. Eyster thought plaintiff was a surgical candidate because of the progressive weakness in his left arm and warned plaintiff of the risks of delaying surgery. Dr. Eyster advised electrical

studies, new X-rays and a repeated MRI to determine the appropriate surgical intervention, but believed it was most likely plaintiff would "need a one or two level anterior cervical discectomy and fusion[.]" It was Dr. Eysters opinion that the 2004 accident aggravated plaintiffs preexisting asymptomatic condition of degenerative cervical disk disease. In deposition testimony

played at trial, Dr. Eyster explained that when he looked at causation, there were three relevant events in his mind. "The

number one was the motor vehicle accident, which started the process. I think there was a second event in December, with The degenerative process was And then the

excessive fatigue and workload. preexisting.

This has been going on for years.

event in February, the third event, when the disk actually ruptured, was off the long drive." 5 Dr. Eyster testified he did

not know what happened in February, but something new did happen to cause additional aggravation resulting in the need for surgery. Plaintiff saw another neurosurgeon, Dr. Eldan Eichbaum, for a second opinion on the appropriate surgical treatment. Dr. Eichbaum recommended surgery at the two most affected disc levels. He felt it was possible plaintiff would improve after

such surgery, but if his symptoms persisted, a second surgery could be performed to address the third disc level. In January 2008, plaintiff underwent a successful two-level anterior cervical discectomy and fusion surgery performed by Dr. Lapsiwala. The surgery had two purposes--to relieve the

irritation of the nerve causing the radicular pain and to stabilize the spine to help with the neck pain. Plaintiff was

pleased with the results of his surgery and showed significant improvement in his symptoms. Plaintiff did not, however, feel Dr. Lapsiwala opined that the

completely cured by the surgery.

continued tingling in the small finger of plaintiffs left hand indicated irritation of the nerve not addressed by the surgery. When asked on direct examination if he had an opinion to a reasonable degree of medical probability whether it is more likely than not that plaintiff will have to have a second surgery, Dr. Lapsiwala said he believed "at some point" plaintiff will require the third level to be addressed by surgery. On cross-examination, however, Dr. Lapsiwala testified

it was best to wait on the C8 nerve root to give plaintiff time to recover from the first surgery and to see what happens, to 6

possibly avoid the second surgery.

He admitted a future surgery

was not 100 percent definite and agreed that a recommendation for a second surgery would be highly speculative without knowing what plaintiffs recovery would be from the first surgery. All

he could give plaintiff was the chances that surgery would be needed or not. He could not be sure one way or the other.

Dr. Lapsiwala released plaintiff to return to work without restrictions on February 15, 2008. He saw no medical reason

plaintiff could not go back to his regular and customary work. Plaintiff returned to work and tried to resume his usual workload, but was unable to perform his full duties. He started

looking into early retirement, although he admitted no doctor had told him medically he should retire. At the time of trial,

plaintiff testified he planned to take early retirement in a few months, but acknowledged he had not submitted any paperwork to initiate his retirement. The defense called Dr. William Hoddick, a physician specializing in diagnostic radiology and medical imaging, to testify regarding his review of plaintiffs medical imaging studies. He testified plaintiffs October 2005 MRI exam showed He testified he found no

only age-related degenerative damage. evidence of trauma on the MRI.

The same was true of plaintiffs

abdominal ultrasound examination in September 2005, plaintiffs radiography of the cervical spine in December 2006 and plaintiffs MRI of the cervical spine in April 2007. The exams

showed no injury he could relate back to the 2004 auto accident. On cross-examination, Dr. Hoddick testified that nothing he 7

reviewed indicated plaintiffs degenerative disk disease was aggravated by the accident. In his deposition, Dr. Hoddick

admitted he could not say to a reasonable degree of medical certainty that plaintiffs disease was not aggravated by the accident. He could not say one way or the other. Plaintiffs

diagnostic radiologist disputed Dr. Hoddicks opinion at trial that plaintiffs imaging studies did not show evidence of trauma. By way of a special verdict, the jury found defendant negligent, that her negligence was a substantial factor in causing harm to plaintiff and that plaintiff sustained damages in the amount of $169,499.94 for past medical expenses, $20,000 for past wage loss, $75,000 for past noneconomic damages, $0 for future medical expenses, $0 for future wage loss, $0 for future loss of pension, $0 for future loss of bonus, $0 for future loss of company car, and $50,000 for future noneconomic damages, for a total jury award of $314,499.94. After hearing legal argument, the trial court granted defendants posttrial motion for reduction of medical billings and reduced the amount of past medical expense damages to $76,286.32 for a final amended judgment amount of $221,286.32.2 The trial court denied plaintiffs motion for attorney fees under Code of Civil Procedure section 2033.420 and plaintiffs

2

The reduced judgment was less than plaintiffs $298,000 offer under Code of Civil Procedure section 998. 8

motion for new trial or, in the alternative, request for additur. DISCUSSION I. APPLICATION OF THE COLLATERAL SOURCE RULE Before we discuss this rule, a few prefatory statutes are in order. Civil Code section 3281 provides that, "[e]very

person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages." (Italics added.)

The standard measure of tort damages is "the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not."

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