Filed 11/25/19 Turner v. FedEx Ground Package System CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

JAMIE TURNER et al.,

Plaintiffs and Appellants,

v.

FEDEX GROUND PACKAGE SYSTEM, INC., et al.,

Defendants and Respondents.

G056724

(Super. Ct. No. 30-2014-00703948)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Sheila Fell, Judge. Affirmed.

Purcell Law, Chris Purcell and Christina Bennett; Walter R. Zech and Jakelin Castillo for Plaintiffs and Appellants.

Murchison & Cumming, Edmund G. Farrell and Richard C. Moreno for Defendants and Respondents.

* * *

This wrongful death case arises from a fatal collision that occurred when a motorcyclist attempted to speed past a FedEx delivery truck on its right side as the truck made a right turn into a driveway. The motorcyclist died in the accident, and his wife and three young children sued the truck driver and FedEx Ground Package System, Inc. (FedEx) for negligence and wrongful death. A jury found the FedEx driver was not negligent and returned a defense verdict.

The plaintiffs challenge the admission of certain testimony by two defense expert witnesses. Finding no error, we affirm.

I.

FACTS

Decedent Ryan Turner and his coworker were riding their motorcycles on their lunch break, heading eastbound on a section of Orangewood Avenue that has one lane in each direction. Ahead of them was a 30-foot-long FedEx truck driven by defendant Richard Espinoza, who also was driving eastbound on Orangewood Avenue and who was planning on making a delivery to a business on the right side of the street. Espinoza veered the truck to the left before initiating his right turn into the business’s driveway. The decedent, apparently believing the truck would be turning left instead of right, sped up and attempted to pass the truck on the right, collided with the truck as it was turning right into the driveway, and died before officers arrived on the scene. According to an accident reconstructionist for the defense, the decedent was traveling at about 60 miles per hour at impact in a portion of road with a 40 mile per hour speed limit.

The decedent’s wife, Jamie Turner, and her three young children — Rhys Turner, Wynn Turner, and Violet Turner — sued FedEx and Espinoza (collectively, Defendants) for negligence and wrongful death. During discovery, Defendants designated Gerald Bretting as their expert on accident reconstruction, and the Turners designated Joseph Yates as their expert on accident reconstruction and motorcycle safety, among other topics. Defendants then served a supplemental expert designation, naming Stephen Garets as their supplemental expert on motorcycle safety. The Turners moved to strike Defendants’ supplemental designation as improper, but the trial court denied their motion. Before trial, the Turners filed several pretrial motions seeking to exclude certain testimony by Defendants’ experts, but the court reserved ruling on their motions. We discuss the Turners’ motions in greater detail below.

At trial, the Turners called one of the designated defense experts, Bretting, in their case in chief; they did not call Yates, their own expert. The jury also heard expert testimony from defense expert Garets. Over the Turners’ objections, the trial court allowed Bretting and Garets to testify the decedent’s speed and unsafe passing caused the accident. The court also allowed Bretting to testify, over the Turners’ objections, that the FedEx truck’s size prevented it from initiating its turn close to the right curb. We discuss the Turners’ objections to the defense experts’ testimony, the court’s rulings, and the challenged testimony in greater detail below.

The jury returned a verdict for Defendants, finding Espinoza was not negligent, and the trial court entered judgment for Defendants. The Turners appeal from the judgment, asserting the court erred in admitting the challenged expert testimony, in permitting Defendants’ supplemental designation of Garets, and in deferring its rulings on their motions in limine.

II.

DISCUSSION

A. Applicable Standards of Review

We review a trial court’s decision to admit expert testimony for abuse of discretion. (Burton v. Sanner (2012) 207 Cal.App.4th 12, 18.) “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.” (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.) “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.’” (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.)

To the extent the admission of expert testimony rests on a matter of statutory interpretation, such as whether a supplemental expert witness disclosure complied with the Code of Civil Procedure, we apply de novo review. (Du-All Safety, LLC v. Superior Court (2019) 34 Cal.App.5th 485, 495 (Du-All).)

B. The Admission of Expert Testimony on “Ultimate Issues”

The Turners first contend the trial court abused its discretion in allowing Bretting and Garets to testify about the “ultimate issues” of the case, such as the legal cause of the collision, safety, and proper judgment. We do not find the contention persuasive.

1. Procedural History

The Turners moved in limine to preclude Defendants’ experts from testifying the decedent’s traffic violations — i.e., his unsafe passing and speed — caused the collision. They asserted that testimony would invade the province of the jury and involve legal conclusions. At the hearing on their motions, defense counsel assured the trial court he would “be careful” in the way he asked his questions, and the court reserved ruling on the motions.

At trial, the court overruled the Turners’ objections and permitted Bretting to testify the cause of the accident was “the speed of the [decedent’s] motorcycle and [his] attempting to pass on the right.” The court also permitted Garets to testify the decedent’s “speed [was] a major factor in this collision,” the decedent should not have tried to pass the truck, and the decedent “caused this collision” by attempting to pass a slow moving vehicle. The Turners contend the court erred in admitting this testimony on “ultimate issues” because it invaded the province of the jury and involved legal conclusions.

2. Analysis

“Generally, the opinion of an expert is admissible when it is ‘[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact . . . .’” (PM Group, Inc. v. Stewart (2007) 154 Cal.App.4th 55, 63; see Evid. Code, § 801.) “Causation is often a matter sufficiently beyond ‘common experience’ that expert opinions may be of assistance to the jury.” (Wegner et al., Cal. Prac. Guide Civil Trials & Evidence (The Rutter Group 2019) ¶ 8:708 [collecting examples], p. 8C-120; see Stephen v. Ford Motor Co. (2005) 134 Cal.App.4th 1363, 1373 [if “the complexity of the causation issue is beyond common experience, expert testimony is required to establish causation”].)

Here, the cause of the accident was a key issue in the case and heavily disputed. The trial court thus did not abuse its discretion in admitting expert testimony on the likely causes of the accident, such as the decedent’s speed and his attempt to pass the truck.

The Turners complain Bretting’s and Garets’s testimony usurped the jury’s role by offering opinions on the ultimate issues in the case, such as safety and proper judgment. It is well-settled, however, an “objection that the opinion of an expert coincides with the ‘ultimate issue’ in the case is untenable.” (People v. Roberts (2010) 184 Cal.App.4th 1149, 1193.) “It is neither unusual nor impermissible for an expert to testify to an ultimate issue.” (People v. Doss (1992) 4 Cal.App.4th 1585, 1596.) Indeed, opinions on ultimate issues are expressly contemplated by Evidence Code section 805, which provides that expert opinion testimony “is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.” (Evid. Code, § 805.)

“Rarely, if ever, does an expression of opinion by a so-called expert not amount to that which either the court or jury might adopt as a basis for the ultimate decision in the case. However, that does not mean that the witness is deciding the case or that in so testifying he [or she] is usurping the functions of the jury. He [or she] is merely giving an opinion, based upon his [or her] technical training, which the court may or may not accept as testimony that is proper and necessary to an enlightened consideration and a correct disposition of the ultimate issue.” (Wells Truckways, Ltd. v. Cebrian (1954) 122 Cal.App.2d 666, 674.)

The Turners rely on Moore v. Norwood (1940) 41 Cal.App.2d 359 (Moore), which held the trial court erred in permitting experts to opine on what the drivers involved in a car accident should have done or whether the accident was avoidable. The court declared those opinions “trenched upon the province of the jury” and decided “the very questions upon which the jury alone is competent to pass judgment.” (Id. at pp. 366-367.) To the extent Moore stands for the proposition experts cannot opine on an ultimate issue like causation, Moore is no longer good law. (See Evid. Code, § 805; 7 Cal. Law Revision Com. Rep. to Evid. Code, § 805 (1965) p. 1142 [“Although several older cases indicated that an opinion could not be received on an ultimate issue, more recent cases have repudiated that rule”].)

The Turners also contend the accident’s cause was not “sufficiently beyond common experience” to warrant expert testimony because “this was a common knowledge, rules of the road case.” (See Evid. Code, § 801, subd. (a); see also Easton v. Strassburger (1984) 152 Cal.App.3d 90, 106 [quoting Bob Dylan, “‘“You don’t need a weatherman to know which way the wind blows”’”].) According to the Turners, “[t]he issues were not scientific nor complex for any juror who has ever driven behind a vehicle that slows down, veers left towards a driveway, and then abruptly turns right to travel to the opposite side of the roadway.” But the Turners’ concise description of the case omits the decedent’s conduct and the disputed issues of how fast he was traveling and whether he safely attempted to pass on the right. Accident reconstruction experts routinely use their training and expertise to resolve these issues and aid the jury in determining causation. Indeed, the Turners represented to the trial court in a motion in limine that “[l]iability is hotly disputed and both sides have retained experts to help evaluate the evidence surrounding the events leading up to the collision.” (Italics added.) They also designated Yates to testify about “liability, causation, and damages, . . . accident reconstruction and data recordings, motorcycle performance and safety.” (Italics added.) On this record, the Turners are hard pressed to deny the cause of the accident was “sufficiently beyond common experience” or that expert testimony on causation would “assist the trier of fact.” (See Evid. Code, § 801, subd. (a).)

Moreover, the personal driving experiences of the jurors does not render expert testimony on causation, driver safety, or judgment inadmissible. “‘“The jury need not be wholly ignorant of the subject matter of the opinion in order to justify its admission; if that were the test, little expert opinion testimony would ever be heard. Instead, the statute declares that even if the jury has some knowledge of the matter, expert opinion may be admitted whenever it would ‘assist’ the jury. It will be excluded only when it would add nothing at all to the jury’s common fund of information, i.e., when ‘the subject of inquiry is one of such common knowledge that men of ordinary education could reach a conclusion as intelligently as the witness.’”’” (Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1168-1169.) Thus, the trial court did not abuse its discretion in permitting expert testimony on causation, safety, or proper judgment.

The Turners additionally argue the challenged testimony amounted to an improper legal conclusion. The Turners tried their case on a negligence per se theory, arguing negligence should be presumed based upon Espinoza’s alleged violation of Vehicle Code section 22100, which requires drivers to make right turns “as close as practicable to the right-hand curb or edge of the roadway.” Because the legality of Espinoza’s conduct was at issue, the Turners argue, “it was improper and prejudicial for the trial court to allow counsel to inquire about legal cause.”

Again, we disagree. The Turners are correct that experts cannot testify to legal conclusions (WRI Opportunity Loans II, LLC v. Cooper (2007) 154 Cal.App.4th 525, 532, fn. 3), but they misstate the scope of the defense experts’ testimony. The experts did not testify on whether either driver violated the law (a legal question); they simply testified on the related but distinct issue of why the accident occurred (a factual question). Allowing that testimony was not an abuse of discretion.

C. The Admission of Expert Testimony About the Truck’s Turning Capabilities

The Turners next assert the trial court abused its discretion in allowing defense expert Bretting to give “surprise” testimony about his previously undisclosed and allegedly unsupported opinion that the FedEx truck could not have successfully started its turn close to the right curb. Under the particular circumstances presented here, this argument has no merit.

1. Procedural History

The Turners moved in limine to exclude expert testimony previously not disclosed and to limit the defense experts’ testimony to the opinions and conclusions testified to in their depositions. The trial court deferred ruling on the Turners’ motions.

In their case-in-chief, the Turners called Bretting, Defendants’ accident reconstruction expert, and questioned him on direct examination about his opinions on how the accident occurred. Among other topics, the Turners questioned Bretting about his accident reconstruction, the comparative widths of the FedEx truck and the roadway, Espinoza’s deposition testimony that the truck was “easy to turn” and could have made the turn from almost anywhere on the road, the decedent’s coworker’s deposition testimony that the turn was sudden and sharp, Bretting’s opinion the truck could not have turned sharply, and why Bretting’s accident reconstruction analysis positioned the truck as it did on the roadway.

During Defendants’ cross-examination, the trial court permitted Bretting to testify, over the Turners’ objection, the FedEx truck was about eight feet wide and about 30 feet long, its size and length required it to make wide turns because its rear tires do not track the front tires while turning, and the truck would need to start its right turn into the driveway a bit to the left to avoid going over the curb. The Turners objected based on Bretting’s failure to disclose these opinions at his deposition. After Bretting confirmed this is his “area of expertise,” however, the court allowed the testimony.

The Turners argue Bretting’s “surprise” testimony about the truck’s turning capabilities amounted to an “ambush,” particularly considering they built their case on Espinoza’s deposition admission the truck could have made the right turn from almost anywhere on the road. According to the Turners, Bretting’s “surprise opinion gutted [their] case for negligence per se.”

2. Analysis

Generally speaking, “a party’s expert may not offer testimony at trial that exceeds the scope of his deposition testimony if the opposing party has no notice or expectation that the expert will offer the new testimony.” (Easterby v. Clark (2009) 171 Cal.App.4th 772, 780.) But when the Turners questioned Bretting on direct examination in their case-in-chief about his opinions on how the accident occurred, the size of the FedEx truck, and the positioning of the truck during the turn, they invited cross-examination on those opinions. (Evid. Code, §§ 761, 773, subd. (a) [cross examination may cover any “matter that is within the scope of the direct examination”]; see Evid. Code, § 721 [“expert may be cross-examined to the same extent as any other witness”].) The trial court thus had discretion to permit cross-examination about the truck’s size and turning capabilities, notwithstanding the fact Bretting had not testified about those issues at his deposition. (See People v. Lancaster (2007) 41 Cal.4th 50, 102 [“‘It is settled that the trial court is given wide discretion in controlling the scope of relevant cross-examination’”].)

The Turners contend the surprise testimony was particularly unfair because it conflicted with Espinoza’s admission at his deposition that he “could [have] made a right turn [into the driveway] from pretty much anywhere on that eastbound lane.” The Turners had planned to rely on that admission at trial to establish Espinoza violated Vehicle Code section 22100 by failing to turn “as close as practicable to the right-hand curb or edge of the roadway,” and thus was negligent per se. But Bretting was not obligated to agree with or adopt Espinoza’s deposition testimony on the truck’s turning capabilities. Further, any inconsistency between Espinoza’s deposition testimony and Bretting’s trial testimony affects the weight given to Bretting’s trial testimony, not its admissibility.

The Turners also complain Bretting’s testimony about the truck’s turning capabilities was speculative and nonscientific, was unsupported by studies or testing, and lacked foundation. The argument lacks merit.

To start, studies or testing are not always required to support expert opinion testimony. The Evidence Code simply requires an expert to base his or her opinion on matter, including the expert’s “special knowledge, skill, experience, training, and education[,] . . . that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his [or her] testimony relates.” (Evid. Code, § 801, subd. (b).)

Bretting reasonably based his opinion the truck would not “make that turn without going over the curb” if it started “up against or right next to the curb” on his experience and the truck’s dimensions. Before opining on the truck’s turning capabilities, Bretting testified about his education in mechanical engineering, his professional experience as an accident reconstructionist, and the process he used to reconstruct the accident. He then testified he took the truck’s dimensions, and he described why its dimensions are important to analyzing the turn. He explained the truck is a large vehicle with a long wheelbase, so its rear tires do not track the front tires while turning. Instead, the rear wheels “off-track to the inside of that turn” by “more than five [or] six feet.” As a result, explained Bretting, the truck must maintain a certain minimum distance from the right curb to negotiate a right turn into the driveway without going over the curb. According to Bretting, “The larger your vehicle, the wider your turn has to be.” The record confirms Bretting’s testimony was not impermissibly speculative, unsupported, or lacking foundation, but instead was reasonably based on his experience and the truck’s dimensions. The trial court thus did not abuse its discretion in allowing Bretting’s testimony.

D. The Propriety of FedEx’s Supplemental Expert Witness Designation

Finally, the Turners complain the trial court erred in permitting Defendants to designate and rely on the testimony of their supplemental expert on motorcycle safety. We disagree.

1. Procedural History
2.
In their original expert designations, FedEx designated Bretting to testify on accident reconstruction, among other topics, and the Turners designated Yates to testify on accident reconstruction, motorcycle performance, and motorcycle safety, among other topics. Defendants then served a supplemental expert designation, designating Garets as an expert on the topics of motorcycle safety and motorcycle operation.

The Turners moved to strike Defendants’ supplemental designation on the ground Garets would testify on the same issues as Bretting and thus could not be designated through a supplemental expert witness designation. Defendants opposed the motion, asserting they properly designated Garets in response to the Turners’ designation of Yates. The trial court denied the Turners’ motion to strike, concluding no authority supported striking the designation based on the anticipated scope of testimony, and the Turners could object to the scope of his testimony at trial.

The Turners moved in limine to exclude Garets’s testimony at trial on the same grounds. The trial court initially denied their motion, but then agreed to conduct a hearing during trial on the scope of Garets’s testimony. Following that hearing, the court ruled Garets could testify, but could not duplicate any testimony already given. The court then permitted Garets to testify, over the Turners’ objections, the decedent’s “speed [was] a major factor in this collision,” the decedent should not have tried to pass the truck, and the decedent “caused this collision” by attempting to pass a slow moving vehicle. The Turners contend the court erred in allowing this testimony because it duplicated Bretting’s testimony about how the accident occurred, and because Defendants should not have been able to designate Garets as a supplemental expert.

2. Analysis

The Turners correctly note a party may not use a supplemental expert designation to add experts on subjects designated by the party in the original exchange or to substitute for an already designated expert. Supplemental expert witness designations must be limited to “experts who will express an opinion on a subject to be covered by an expert designated by an adverse party to the exchange,” and the supplementing party must not have “previously retained an expert to testify on that subject.” (Code Civ. Proc., § 2034.280, subd. (a).) In other words, “a party who has designated an expert to testify on a particular subject may not replace that expert with one stated on a supplemental list.” (Basham v. Babcock (1996) 44 Cal.App.4th 1717, 1718; see Du-All, supra, 34 Cal.App.5th at p. 496 [discussing supplemental expert disclosures under Code Civ. Proc. § 2034.280].)

Defendants’ supplemental designation of Garets did not run afoul of these authorities. Defendants designated Bretting on the topic of accident reconstruction and related issues, not on motorcycle safety. After the Turners designated Yates to testify on “motorcycle performance and safety,” among other topics, Defendants were within their rights to designate Garets as a supplemental expert on motorcycle operation and motorcycle safety. Further, during the Evidence Code section 402 hearing, Garets made clear he was not an accident reconstructionist and had not done any accident reconstruction work on the case. We therefore find no error in the trial court’s refusal to strike Defendants’ designation of Garets and its decision to allow Garets to testify.

We also reject the Turners’ argument that Garets’s testimony was impermissibly duplicative of Bretting’s. Although both experts expressed opinions on what they believed caused the accident, agreeing the decedent caused the accident by speeding and unsafely attempting to pass the truck, they reached those opinions through different analyses and methodologies — Bretting through reconstructing the physics of the accident, and Garets from the standpoint of safe motorcycle operation. Further, any overlap in their testimony was minimal.

E. The Deferred Rulings on the Motions in Limine

Finally, the Turners argue the trial court abused its discretion in deferring its ruling on the motions in limine. Not so. We are aware of no authority requiring a court to rule on a motion in limine before trial begins. Courts often defer ruling on motions in limine until they gain a complete understanding of the facts and issues presented. This makes sense: “until the evidence is actually offered, and the court is aware of its relevance in context, its probative value, and its potential for prejudice, matters related to the state of the evidence at the time an objection is made, the court cannot intelligently rule on admissibility.” (People v. Jennings (1988) 46 Cal.3d 963, 975, fn. 3; see also Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 90, fn. 6 [in limine rulings “are ‘subject to reconsideration upon full information at trial’”].) Especially where a motion in limine prophylactically seeks to exclude unspecified evidence — such as evidence previously not disclosed — a court reasonably may defer ruling until specific evidence is at issue.

 

III.

DISPOSITION

The judgment is affirmed. Defendants shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)

ARONSON, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

DUNNING, J.*

*Retired Judge of the Orange Super. Ct., assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.