Case Number: VC056716 Hearing Date: August 04, 2015 Dept: SEC
OCHOA v. DORADO
CASE NO.: VC056716
HEARING: 08/04/15

#5
TENTATIVE ORDER

I. Defendants TRIMAC TRANSPORTATION SERVICES, INC. and
JESUS FELIPE DORADO’s motion for judgment notwithstanding the
verdict is GRANTED in its entirety. C.C.P. §§ 629, 630.

II. Defendants TRIMAC TRANSPORTATION SERVICES, INC. and
JESUS FELIPE DORADO’s motion for new trial is GRANTED as to
loss of earning capacity damages; otherwise DEEMED MOOT.
C.C.P. §657.

Plaintiffs JOAQUIN OCHOA AND IMELDA MORENO were involved in an automobile accident. After a jury trial, they were awarded damages for medical expenses, loss of earning capacity and future household services. Defendants’ post-trial motion for judgment notwithstanding the verdict was denied by the trial judge as premature. That ruling was upheld on appeal. See Ochoa v. Dorado (2014) 228 Cal.App.4th 120. Thereafter, a 170.6 was served on the trial judge (The Honorable John Torribio). Judgment was entered by this Court in April 2015 in the amount of $670,539 as to plaintiff Ochoa and $851,336 as to plaintiff Moreno.

Defendants seek an order granting judgment notwithstanding the verdict based on lack of evidence with respect to damages. In the alternative, they seek a new trial based upon the insufficiency of evidence to support the damages awards.

I. Judgment notwithstanding the verdict
Defendants seek an order vacating the jury’s verdict with respect to (A) past and future medical expenses and (B) future household expenses.

A motion for judgment notwithstanding the verdict must be granted where a plaintiff has failed to present substantial evidence to support his claims. See Linear Technology Corp. v. Tokyo Electronic Ltd. (2011) 200 Cal.App.4th 1527.

A. Medical expenses
Plaintiffs relied on their unpaid medical bills to substantiate past medical expenses and anticipated costs based on current billed costs to estimate their future medical expenses. Defendants seek a reversal of the verdict awarding those damages on the ground that plaintiffs failed to proffer any evidence with respect to the reasonableness of the amounts claimed. To recover a medical expense, a plaintiff must show that the expense was both incurred and reasonable. Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541; Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308.

Plaintiffs did not proffer any evidence of the reasonableness of the amounts sought, which was acknowledged by the trial judge in ruling on the post-trial motions. See Ruling, 3/8/12. Rather than submit evidence of the reasonableness of the damages sought, plaintiffs’ counsel erroneously argued that the burden on that issue lied with the defense.

In opposition, plaintiffs argue that defendants stipulated to the reasonableness of the medical bills. The portion of the transcript relied upon makes clear that defendants were stipulating to the bills themselves, and not the reasonableness of the amounts.

Plaintiffs also note that their treating physician Dr. Schiffman was “precluded” from testifying as to the reasonableness of the medical costs. Dr. Schiffman was listed as a non-retained expert on issues related to plaintiffs’ diagnosis and treatment, not on the medical billing. In any event, he did not testify and what he might have said is irrelevant to the subject motion.

Plaintiffs’ argument that the bills themselves can be used as evidence of the reasonable value of the medical expenses was already rejected by the Appellate Court. Even if it was inclined to do so, this Court has no authority to disturb that ruling. A plaintiff must prove evidence of the reasonableness of damages recoverable for medical expenses. Here, they failed to do so. Because there is no substantial evidence to support the damages for medical expenses, the motion for judgment notwithstanding the verdict is granted as to that portion of the award.

B. Household services damages
An award for future household services is based on the notion that a plaintiff should be compensated for the value of services he would have performed which, because of the injuries, will have to be performed by someone else. Overly v. Ingalls Shipbuilding, Inc. (1999) 74 Cal.App.4th 164, 170.

At trial, plaintiff Moreno relied on their life care planner, expert Gene Bruno, who opined as to the value of household services plaintiffs could have performed, but no admissible testimony as to what they actually did before the accident. The trial judge commented that no one testified as to what household work was performed prior to the accident, so there was no factual underpinning for the expert opinion as to future costs. Ruling, 3/8/12.

The Court is persuaded by defendants’ argument that the expert opinion had no factual foundation and was thus based on speculation. See Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108. There was no other evidence to support the award of damages for future household services. That portion of the motion is also granted.

II. New trial
Defendants bring the motion for new trial on the grounds of insufficiency of evidence and excessive damages. They challenge the medical expenses and household services damages, each of which was vacated by the Court’s tentative ruling on the JNOV motion. See above. The motion also seeks a new trial on the ground that the verdict awarding loss of earning capacity damages was without basis.

The Court may grant a new trial where it finds the weight of the evidence is against the verdict, even though there may be sufficient evidence to sustain the verdict on appeal. Candido v. Huitt (1984) 151 Cal.App.3d 918; see also Casella v. SouthWest Dealers Services, Inc. (2007) 157 Cal.App.4th 1127 (finding the Court may “disbelieve witnesses, reweigh the evidence, and draw reasonable inferences therefrom contrary to that of the trier of fact.”).

Defendants argue that the evidence did not support the $200,000 loss of earning capacity damages as to plaintiff Ochoa. His only projected occupation was for truck driving, and the earning capacity used was premised on Ochoa being totally disabled. The evidence presented showed that although he finds it difficult to drive a truck, he continues to drive. Dr. Schiffman testified that Ochoa should be able to drive, as did defense expert Dr. Bhatia. The trial judge noted the “uncontradicted evidence [] that the plaintiff…was cleared to work as a trucker in August 2010.” RJN, Exh. A. Economist Pickersgill’s testimony as to the amount of damages was based on an erroneous assumption that Ochoa could not work.
It was insufficient to support the verdict on loss of earning capacity.

As to plaintiff Moreno, the evidence, including Dr. Bhatia’s testimony, indicated that she was able to continue her work as a dispatcher.

Plaintiffs correctly note that loss of earning capacity damages may be awarded without any proof of actual loss earnings. See Heiner v. K-Mart (2000) 84 Cal.App.4th 355. They note that plaintiff Ochoa testified that he did not take certain jobs because of his injury and that Bruno testified Ochoa may not be able to return to work. Pickersgill set forth the basis for her calculations with respect to the amount of future earnings. Plaintiffs also argue that Pickersgill testimony supported the award as to plaintiff Moreno. They contend the evidence was sufficient, also noting that the jury’s verdict was for substantially less than the amount estimated by the experts.

While plaintiffs have demonstrated there was some evidence to support the loss of earnings award, the problem is the lack of evidence of plaintiffs’ inability to work, as noted above. For that reason, the Court finds that the damages for loss of earning capacity are not supported by sufficient evidence. The motion for a new trial is granted.

The other issues presented in the motion for new trial are (tentatively) deemed moot by the ruling on the JNOV motion. Counsel may elect to present oral argument regarding causation and whether the damages awarded were excessive.