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Scognamillo v. Herrick3/10/2003
jectural or not reasonably certain"].)
While Wong testified that surgery is required to alleviate Scognamillo's back problems, he said that "the usual procedure is to do the worst disc first and see, because of the risk of the surgery, see how much improvement there is. And if everything goes well, then perhaps, if everything goes well, proceed with the second disc." (Italics added.) Whether the second surgery will ever be performed could hardly have been couched in more speculative terms. From this testimony it appears possible that one surgery might sufficiently alleviate plaintiff's problems, or that a second surgery might be deemed to not be worth the risk. Having only the quoted testimony as support for the award of damages arising out of a second surgery, we must conclude that the trial court did not have before it sufficient evidence, based on a reasonable medical probability, to make such an award. The judgment must be reversed to the extent that Scognamillo was awarded $32,500 in medical expenses for a second surgery.
It follows, too, that the award of damages in the amount of $75,000 for prospective loss of earnings due to a second surgery is similarly unsupported by sufficient evidence and must be reversed.
Finally, the record on appeal also indicates that the trial court apparently did not reduce to present cash value the award for future lost wages for the first surgery, as it should have done. (Niles v. City of San Rafael (1974) 42 Cal.App.3d 230, 241-242.) In light of these circumstances, we will reverse the judgment and remand the matter to the superior court for reconsideration of the amount of damages to be awarded. The trial court is directed to reduce to present cash value the amount of the award representing future damages. Defendants are not entitled to participate in the second judgment hearing. (See Barranco v. Banco BCH (1986) 188 Cal.App.3d 283, 302-302.)
Disposition
The order denying defendants' motion to vacate the default is affirmed. The default judgment is affirmed in part, and reversed in part as explained in this opinion. The parties are to bear their own costs on appeal.
We concur:
EPSTEIN, J.
CURRY, J.
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