Judge: Ronald F. Frank, Case: 21STCV02812, Date: 2023-03-15 Tentative Ruling
Case Number: 21STCV02812 Hearing Date: March 15, 2023 Dept: 8
Antonia Valladares vs Vernice Phillips, Case No. 21STCV02812
Tentative Ruling on MIL P-1 to exclude evidence of Plaintiff’s intoxication on the day of the incident
Tentative: Deny the MIL in part, allow evidence of plaintiff’s drinking and intoxication, give CACI 404, but exclude evidence of the 0.259 BAC level measured in the hospital under Ev. Code §352
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Plaintiff Valladares’ Motion in Limine (“MIL”) No. 1 is to exclude evidence that she had consumed tequila and margarita mix on the day of the subject incident, or that her intoxication or degree of intoxication caused or contributed to her fall on the apartment stairwell. The CACI Committee has approved a civil instruction on point, CACI 404 titled “Intoxication,” which reads “A person is not necessarily negligent just because that person used alcohol [or drugs]. However, people who drink alcohol [or take drugs] must act just as carefully as those who do not. Among other sources and authority cited by the CACI Committee as the basis for this civil instruction is Barr v. Scott (1955) 134 Cal.App.2d 823, 827-28. In Barr, which like this case was a premises liability action for bodily injury that occurred when the plaintiff fell down some stairs in an apartment house, the Court of Appeal found no error in giving an instruction similar to what is now CACI 404 even though there was apparently no expert opinion testimony to quantify the effect the plaintiff’s intoxication may have had on his coordination, judgment, perception or otherwise.
Barr cited and relied on the 1930 California Supreme Court case of Coakley v. Ajuria (1930) 209 Cal. 745. There the Court reversed a nonsuit in a wrongful death case where defendant ran over plaintiff’s decedent who had fallen asleep “from the effects of intoxicating liquors” in a hazardous location: in the road where defendant later struck him. Coakley held that the issue of intoxication and its effect on decedent’s contributory negligence should have gone to the jury: “The fact that a person when injured was intoxicated is not in itself evidence of contributory negligence, but it is a circumstance to be considered in determining whether his intoxication contributed to his injury. If it did, he cannot recover. If it did not, it will not excuse the defendant's negligence. Ordinarily, it is a matter to go to the jury.” (Id. at p. 752.) In 1930, contributory negligence was an absolute bar to recovery; today and for nearly a half century since Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 808, the plaintiff’s comparative fault only results in a proportionate reduction of plaintiff’s damages. Published opinions in the 1930’s and since then have noted annotations collecting cases from many jurisdictions that recognized the admissibility of the number of drinks one had and the conduct of the allegedly intoxicated accident participant. (See, e.g., Tracy v. Brecht (1934) 3 Cal.App.2d 105, 110.)
Plaintiff’s reliance on Hernandez v. County of Los Angeles (2014) 226 Cal.App.4th 1599 is misplaced. The case is distinguishable because the intoxicant at issue there was marijuana, not alcohol. Hernandez was a wrongful death claim where defense counsel admitted in closing argument there was no evidence that the decedent’s marijuana use contributed to his death, but he invited the jury to speculate about the effects of marijuana anyway. Here, in sharp contrast to Hernandez, defense counsel intends to argue that plaintiff’s alcohol consumption was a contributing cause of the incident. Further, the Court can take judicial notice that marijuana has different effects on different people, and that there is no direct correspondence between the level of THC or its metabolites to a level of impairment. IN Hernandez, there was conflicting evidence of exactly how much decedent had consumed, what the THC concentration may have been, and how long prior to the roadside collision at issue decedent had taken the apparently medically prescribed marijuana. While levels of marijuana use in the general population may be increasing, the Court is not convinced that marijuana’s effects on coordination, balance, and judgment are within the common experience of lay jurors in the way alcohol’s effects are.
Accordingly, the Court’s tentative is to give CACI 404, to allow the defense to inquire of Plaintiff as to how many drinks or other measure of her consumption over what period of time before the incident, to introduce evidence of plaintiff’s movements and conduct before and immediately after the fall as evidence of her outward symptoms of intoxication, but to exclude the objective measure of her BAC levels under Section 352. The Court believes the danger of juror confusion and undue prejudicial impact of a 0.259 measurement outweigh the probative value of the BAC level found in post-accident blood tests, given the absence of expert testimony to equate a specific BAC level with any objective level of impairment or effect on balance, coordination, judgment, or other human factors. Jurors are likely aware of the criminal law standards for impaired driving, but driving is not the conduct at issue on the comparative fault question. Moreover, a juror might misuse the driving standard from the criminal law to make an implicit determination of a multiple of negligence per se in this civil case, which would be unfairly prejudicial here.
Additional Tentative Rulings on
Motions in Limine
MIL D-3 to Preclude Dr. Smith from Testifying As To Plaintiff’s
Loss of Earnings and re Loss of HHS
Tentative:
Mostly Deny but conduct 402 Hearing on specific elements of his expected
opinions. The Court has some concerns as
to the late supplemental further responses to damages discovery but does not
believe this is a Kennemur situation nor a Sargon issue. In the Court’s view, whether Dr. Smith misinterpreted
Census data or over-reached in relying on the classification of individuals
reporting a specific vocational limitation are issues for cross-examination,
not evidence exclusion. Plaintiff remedied
the potential Kennemur notice issue by giving defense counsel Dr.
Smith’s written report on October 25, 2022 and then by presenting him for
deposition where defense counsel was able to interrogate him about the report
and his opinions. The Court would bar
Dr. Smith, who is not a vocational rehabilitation expert, from testifying on
direct examination as to what jobs Ms. Valladares could or could not perform
given her testimony about lifting restrictions nor would the Court allow direct
examinations as to the vocational requirements and physical capabilities needed
for such jobs. The Court would allow the
defense, if it so chose, the ask for his opinions on those jobs and the level
of income one could reasonably expect if she were to obtain employment in those
jobs. If the Plaintiff intends to have
Dr. Aish opine that Plaintiff was able to return to work as a private maid for
hire but was / is unable to perform similar tasks (since her return to work) at
her own household, the Court would allow such testimony at Plaintiff’s peril.
The Court would tentatively allow
questions on a juror questionnaire (and privately or sequestered voir dire with
prospective jurors who answered a question on the questionnaire) regarding her
or his loss of work or reduction in hours during the pandemic and any physical restrictions
or limitations a prospective juror may have that affects their employment or
employment opportunities.
MIL D-4 to Preclude Dr. Aish from Testifying As to Future
Surgery and Costs of Future Treatment
Tentative:
Mostly Deny. While Dr. Aish may be
subject to cross-examination as to the fact that he is not a sports medicine
surgeon and has not been the lead surgeon on the types of future surgeries that
he opined Ms. Valladares might need, under the law the Court would be inclined
to allow his testimony and to allow wide-ranging cross. With respect to any surgical procedure the
Dr. Aish testifies to be less than 50% probable, the Court would bar him from
opining about such surgeries on plaintiff’s direct examination but allow the
defense, if it so chose, the ask for his opinions on those procedures. The Court’s tentative is to permit Dr. Aish
to testify to how he calculated the expected cost of a future surgical
procedure that is more than 50% likely to be needed, for him to discuss the
sources of data he relied upon for pricing estimates, to conduct a 402 hearing
as to whether Dr. Aish’s reliance on his data sources abridge Corenbaum,
Pebley, Cuevas or Qaadir, and to allow wide-ranging cross on
those matters. Dr.
Aish remedied the Kennemur notice issue by giving deposition
testimony bearing on the cost of surgery in the future, even if the designation
omitted the word “cost.” Defendants did not
seek leave to amend their expert designation nor seek further discovery after
Dr. Aish’s deposition testimony.
The Court would tentatively allow
questions on a juror questionnaire (and privately or sequestered voir dire with
any prospective juror who affirmatively answered a question on the
questionnaire) regarding a prospective jurors’ orthopedic surgeries, and any
follow-up or revision surgery a prospective juror may have had done or
recommended concerning pins, screws, plates, or artificial joints or
limbs.