Judge: Richard J. Burdge, Case: BC635250, Date: 2022-08-02 Tentative Ruling

Case Number: BC635250    Hearing Date: August 2, 2022    Dept: 3

LOS ANGELES COUNTY SUPERIOR COURT

Plaintiffs Michael Thabet, Kathy Thabet, George Thabet, Nicolas Thabet, Kristina Thabet and Ilham Chaouir, as successors in interest to Magdy Thabet, filed a notice of intention to file a new trial motion filed a motion for a new trial on the jury verdict on which Notice of Entry of Judgment was filed on May 31, 2022. The court finds the notice of intention for new trial and the motion for new trial to be timely filed.

Plaintiffs move for new trial on the following grounds:  (1) Irregularity in the proceedings of, or abuse of discretion by the Court (Code of Civil Procedure §657(1)); and (2) Error in law occurring at the trial and objected to by the moving party (Code of Civil Procedure §657(7).^[1]    In particular, Plaintiffs claim 1.) the orders of the Court having the effect of disallowing plaintiffs from proving product defect under the Consumer Expectation Test, which is required to be allowed under California law, were irregular, legally erroneous and constituted an abuse of discretion and deprived Plaintiffs a fair trial; 2.) the jury instructions and verdict sheet submitted to the jury as to product defect under the Risk-Benefit Test were irregular, legally erroneous, an abuse of discretion, and submitted without basis in law, in light of the express applicability of the California formulation of Risk-Benefit under the Restatement (Third) of Torts, and thereby Plaintiffs were prevented from having a fair trial; and 3.) the order of the Court allowing defendants to introduce evidence of an absence of past similar incidents while simultaneously disallowing Plaintiffs from introducing contradictory expert evidence of past similar incidents, were irregular, legally erroneous, unfair, and an abuse of discretion, and prevented Plaintiffs from having a fair trial.

Plaintiffs filed a memorandum and a reply memorandum in support of the motion.   Defendant Yamaha Motor Corporation, USA filed an opposition memorandum and a declaration of Daniel S. Rodman in opposition to the motion.  The court has reviewed all the papers filed in support of and in opposition to the motion. 

After having considered the parties’ briefs and the trial proceedings, the court concludes that there is no good cause for a new trial for the reasons stated below.

A.        Standards for a New Trial Motion

California permits motions for new trial in very limited circumstances. As set forth in Article VI, Section 13, of the California Constitution, “[n]o judgement shall be set aside, or new trial granted … unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” Case law holds that “[a] miscarriage of justice … occurs … when it appears reasonably probable that were it not for the error a result more favorable to the appellant could have been obtained.” Candelaria v. Avitia, 219 Cal.App.3d 1436, 1444 (1990) (quoting Williams v. Lambert, 201 Cal.App.2d 115, 126 (1962)). Prejudice is not presumed; the burden is on the movant to show its existence. Id. “If it clearly appears that the error could not have affected the result of the trial, the court is bound to deny the motion.” Bristow v. Ferguson, 121 Cal.App.3d 823, 836 (1981). Plaintiffs’ Motion fails to meet this burden.

B.        Application of Maritime Law to this Case

More than two years prior to trial, the Court determined that maritime law applied in this action. (See Declaration of Daniel S. Rodman (“Rodman Decl.”) at ¶2; Ex. 1 [11-8-19 Notice of Granting Defendant Yamaha Motor Corporation, U.S.A.’s Mot. to Determine Applicable Law (Maritime Law)].) The Court’s ruling relied on long-standing United States Supreme Court precedent, recognizing the uncontroversial principle that cases involving watercraft collisions on navigable waters fall within admiralty law’s domain. (Id. at Ruling, p.2.) That ruling was not, as Plaintiffs characterize it, a “radical and draconian new legal doctrine.” (Mot. at 6:16-17.)

Instead, the Court’s ruling was consistent with the United States Constitution and Supreme Court precedent that maritime law is a uniform body of law that determines liability for actions that occur on navigable waters. Article III, § 2 of the U.S. Constitution grants judicial power to “all cases of admiralty and maritime jurisdiction,” and in The Lottawanna, the Supreme Court explained that the Article III provision was intended to create “a system of law coextensive with, and operating uniformly in, the whole country.” (The Lottawanna (1874) 88 U.S. 558, 575.)

Where an action occurring on navigable waters meets the “location” and “connection” tests, there is admiralty jurisdiction, and maritime law applies. This follows from the principle of uniformity. Moreover, “[w]ith admiralty jurisdiction comes the application of substantive admiralty law.” (East River S.S. Corp. v. Transamerica Delaval Inc. (1986), 476 U.S. 858, 864.) There is no exception to the application of maritime law for cases involving recreational vessels. (Foremost Ins. Co. v. Richardson (1982) 457 U.S. 668, 675 (finding admiralty jurisdiction over collision between two pleasure boats on navigable waters); Sisson v. Ruby (1990) 497 U.S. 358  (finding admiralty jurisdiction over case involving fire on pleasure yacht docked at marina on navigable waters).)

Substantive maritime law likewise applies when a maritime claim is brought in state court. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558 (“A maritime claim brought in the common law state courts is governed by federal maritime law”).) As explained in Barber, “[a]lthough common law originated in the customs on the land, maritime law derives from customs at sea and therefore constitutes a separate and distinct body of law.” Thus, in Barber, which involved a negligence action involving injuries on a pleasure cruise, the court ruled that California’s assumption of the risk did not apply, because assumption of the risk was not a defense under maritime law. (Id. at 568-69.)

Maritime law has its own products liability principles, and these principles flow from the Restatement (Third) Torts: Products Liability (1998). (See, e.g., Oswalt v. Resolute Industries, Inc. (9th Cir. 2011) 642 F.3d 856, 860 (in maritime case finding product liability claims “controlled by the federal common law of maritime torts” and holding that the court will “look to the Restatement (Third) of Torts: Products Liability to guide our assessment of … product claims.”).

The Third Restatement applies a risk-utility balancing test to determine design defect. (See Rest. 3d Torts: Products Liability, § 2(b); see also id. at cmt d.) The reasoning behind the Third Restatement’s (and maritime law’s) use of the risk-utility test is explained in Dehring v. Keystone Shipping Co. (E.D. Mich. 2013) 2013 WL 3879619. In Dehring, the court explained at length the history behind the Restatement Third’s rejection of the consumer expectation test as the primary analysis for defective product design. As set forth in that case, maritime law and the Restatement has “gradually moved from the ephemeral consumer expectations test to the more concrete risk-utility test of the Restatement (Third).” (Id. at *6 (emphasis added).) In other words, the risk-utility test provided more uniformity and predictability than the consumer expectations test. Accordingly, the Restatement (Third) adopted the risk-utility test for design defect, which has been incorporated into maritime law.

C.        Application of Maritime Law Did not Prevent Instruction or Consideration of the Consumer Expectations Test

Plaintiffs argue that the Court’s decision “disallowing the Consumer Expectations Test” led to “massive prejudice against plaintiffs,” preventing a fair trial. ( Mot. at 10:6-8.) According to Plaintiffs, they were prohibited from putting on “numerous pieces of evidence relevant to consumers’ expectations” at trial. (Mot. at 10:9-10 (without itemizing them).) This argument fails, as well. First, consumer expectations are one of several elements of the risk-utility test, and therefore there was no reason to exclude evidence of them and the court did not exclude evidence on that basis. (See Rest. 3d Torts, § 2, cmt f (including consumer expectations among relevant factors in risk-utility determination).) The Court did not hold that consumer expectations were irrelevant. (See Rodman Decl., Ex. 4 [4-8-22 Hearing Tr.] at 79:24-28.) In fact, the Court instructed the jury to consider consumer expectations as part of their determinations on design defect. (See Rodman Decl., ¶6; Ex. 5 [Jury Instructions], p.19.)

The only example of such “prejudice” cited by Plaintiffs relates to the YMUS “customer surveys.” (Mot. at 10:10-15.) However, the Court’s ruling regarding the admissibility of those surveys had nothing to do with relevance, but rather foundation. (See Rodman Decl., Ex. 4 [4-8-22 Hearing Tr.] at 57:8-9 (The Court: “… if he’s got a foundation for the documents, he can introduce the documents.”).) The Court invited the Plaintiffs to provide the foundation, but it was never provided. Moreover, Plaintiffs questioned YMUS’ expert witness, Kevin Breen, regarding those same surveys. (See Rodman Decl., ¶7; Ex. 6 [Pls.’ Designations of Deposition Testimony of K. Breen], p. 6 (court ruled that pp. 43 and 46 from Breen’s deposition could be played).) Plaintiffs point to purportedly excluded testimony by Mr. Seti regarding the surveys (Pls. Mot. at 10:18-20) but Plaintiffs failed to obtain a ruling on that testimony. Given that Plaintiffs identify (albeit incorrectly) only this one item of evidence, Plaintiffs can hardly show that the alleged curtailment of their “expectation” evidence created a miscarriage of justice.

Plaintiffs argue that even if maritime law and the Restatement’s risk-utility test did apply, the Court nonetheless erred by providing instructions and a verdict form based on those principles rather than pattern instruction CACI 1204 and verdict form VF-1201. ( Mot. at 4:17-19; 12:16-14:4.) The instructions and verdict form accurately represented the Restatement.  To begin with CACI 1204 if given would allow the jury to find liability solely on the consumer expectations test, ignoring the rest of the analysis provided for in the Restatement.  Therefore, it was more appropriate to incorporate that test into the overall instruction, which it was, and the specific language about which Plaintiffs complain was in their own instruction proposed to the Court. Plaintiffs’ argument regarding the risk-utility instruction and verdict form is simply another complaint that the Court should have applied California products law rather than maritime law.

The instruction given by the court tracked the test set forth in the Restatement.  It instructed the jury that Plaintiff needed to prove that there was a safer design available, that the lack of the safer design made the product unsafe, and that the absence of the alternative design was a substantial factor in causing the injuries.  (See Rodman Decl., Ex. 5, Instruction 1204 at p.19.)  that instruction told the jury they could consider “the nature and strength of consumer expectations regarding the product, including expectations arising from product portrayal and marketing.”  (Id.)  On the issue of design defect, the Special Verdict Form presented three questions: “1. At the time YMUS sold the 2012 WaveRunner VX Sport, was there a reasonable alternative design available? 2. Did the absence of that reasonable, safer alternative design render the 2012 Yamaha WaveRunner VX Sport not reasonably safe? 3. Was the absence of that reasonable, safer alternative design a substantial factor in causing harm to Plaintiffs?” (See Rodman Decl., ¶8; Ex. 7 [Special Verdict Form].) The test presented in the jury instructions and special verdict form was accurate – the language came directly from the Restatement. (See Rest. 3d § 2(b) requiring a “reasonable alternative design” and that “the omission of the alternative design renders the product not reasonably safe”).)  The jury found that the lack of an alternative design was not a substantial factor in the occurrence of Plaintiff’s injuries.  (See Rodman Decl., ¶8; Ex. 7 [Special Verdict Form].)  That finding alone renders any other argument regarding the instruction as harmless.  Even under CACI 1203, the instruction requires Plaintiff to prove that fact to recover, so the contrary finding eliminates Plaintiff’s argument of prejudice.  Moreover, the evidence was overwhelming that the lack of the proposed alternative designs was not a substantial factor in causing the injuries.  The testimony of the individuals involved in the accident was not credible—they changed their stories and some of their testimony was objectively impossible.  On the other hand, the expert testimony uniformly supported the conclusion that Mr. Envieh’s jet ski was too close and moving too fast to avoid the accident when he finally took action.

D.        The Court Properly Excluded Testimony from Law Enforcement Officers About Statement of Individuals Involved in Other Accidents

Plaintiffs finally contend that a new trial should be granted because the Court erred in excluding proposed testimony from two law enforcement witnesses to the effect that they had heard of other instances where PWC accidents occurred after the operator had pressed the stop button. This testimony could only have been relevant to “rebut” YMUS corporate representative’s (Mr. Henmi’s) testimony that he was not aware of another accident caused by an operator pressing a PWC stop button in an emergency to avoid a collision. The Court ruled that the testimony was inadmissible hearsay.

The disputed testimony comes from Nevada Game Warden Brady Phillips and Bullhead City Police Officer Douglas Allen, who Plaintiffs contend would have testified that they had investigated a number of cases where the operator pushed the stop button to avoid a crash.” (See Rodman Decl., ¶11; Ex. 10 [5-20-22 Trial Tr.] at 33:9-15.) The Court questioned how Game Warden Phillips and Officer Allen could know that individuals involved in personal watercraft accidents had pushed the stop button to avoid a crash, and Plaintiffs’ counsel responded that the officers knew “because that’s what was reported in the accident.” (Id. at 33:16-19.) Game Warden Phillips’ actual testimony at his deposition was that he had investigated “other accidents where someone claimed they had shut off their engine . . . .” (See Rodman Decl., ¶12; Ex. 11 [Deposition of Brady Phillips], p. 85:21-24 (emphasis added).)

As to hearsay, Plaintiffs argued at trial that the Officers were disclosed as non-retained experts and could thus rely on hearsay. (See Ex. 10 [5-20-22 Trial Tr.] at 35:6-17.) Plaintiffs wanted to offer the testimony to “counter the defense claim that no one hits the stop button.” (Id.)  The officers did not express an opinion about how this crash occurred, so this testimony was not offered to provide a basis for their opinion.  In addition, no witness for the defense had testified that “no one hits the stop button,” but rather they testified that they “had never heard of it” and were not aware of any such accidents (caused by pressing the stop button in an emergency). (Id. at 35:18-36:22.) There was no proffer that their experiences had be reported in a way where they should have come to the attention of anyone at Yamaha.  What the officers heard and did not report to Yamaha could not refute the testimony about lack of knowledge and no exception to the hearsay rule applied. (Id.)

In an attempt to avoid the exclusion, Plaintiffs pivoted and argued that the evidence was not being offered for the truth of the matter, but to show notice of a defective product to YMUS. But there was no evidence that these few unsubstantiated reports were ever relayed by anyone to YMUS or that they related to any incidents they did not investigate. Plaintiffs relied upon the officers’ status as non-retained experts. This argument fails. While experts may “rely upon” hearsay as support for an opinion; that was not what was offered here. Plaintiffs have repeatedly argued that the purpose of the officers’ testimony regarding prior accidents is to show that such accidents have occurred to “rebut” that YMUS had never heard of such accidents. (See, e.g., Ex. 10 [5-20-22 Trial Tr.] at 35:6-8.) California law is clear that the officers’ hearsay testimony cannot be used as independent proof of the existence of prior similar accidents:

“[A]lthough qualified experts may rely upon . . . hearsay of a type reasonably relied upon by professionals in their field, they may not relate the out-of-court statement of another as independent proof of the facts asserted in the out-of-court statement. . . . [A] witness's on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into ‘independent proof’ of any fact.” (People v. Baker (2012) 204 Cal.App.4th 1234, 1245–46 (citations omitted).)

Plaintiffs contend, without analysis, that the officers “necessarily rely on their wealth of background knowledge of past investigations” when forming their accident reconstruction opinions. (Mot. at 14; see also Rodman Decl., Ex. 10 [5-20-22 Trial Tr.] at 35:6-8.) They did not express an opinion on accident reconstruction that included the pressing of the stop button.  There is no evidence of that they were relying upon these matters to conclude that Envieh was responsible for the accident and should be criminally charged. There is no indication that they considered these few other incidents in reaching their conclusion as to Envieh. Neither officer was offered to express opinions regarding Yamaha or its design. On the other hand, YMUS’ engineer was being challenged for not taking steps to avoid riders from using the “stop” button to avoid accidents, so his lack of knowledge of such accidents was relevant to explain why he did not treat this as a safety issue that needed correction.  Thus, in addition to being a correct ruling, the exclusion of such hearsay evidence was harmless and had no effect on the outcome of this case.

Conclusion

For the forgoing reasons, Plaintiff’s motion for a new trial is denied.

Dated:   August 2, 2022.                                               __________________________

Hon. Richard J. Burdge, Jr.