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Salerno v. Tudor1/30/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Denise Salerno (Salerno) sued David Kennedy Tudor (Tudor) for personal injury following their involvement in an automobile accident. A jury returned a verdict for Tudor. Salerno appeals, arguing that the court improperly permitted the testimony of a biomechanical expert and that the closing argument by Tudor's counsel constituted prejudicial misconduct. We agree that the biomechanical expert should not have been permitted to testify that the accident could not have caused Salerno's injury, but her other testimony was admissible; admitting this single statement was not prejudicial. We also agree that Tudor's counsel made an improper statement implying that Tudor did not have liability insurance. However, Salerno never objected to these remarks and has waived raising this issue on appeal. Accordingly, we affirm.
BACKGROUND
On November 16, 1996, Salerno was driving her vehicle and she stopped at a stop sign. While her car was stopped, a vehicle driven by Tudor hit the rear of her vehicle. Tudor testified that his vehicle was traveling two to three miles per hour when it hit Salerno's car. Salerno sued Tudor for her personal injury , alleging that she had experienced injuries to her head, neck, and back, and that she had suffered emotional distress.
Prior to the jury trial, Salerno moved to bar the testimony of Tudor's expert, Laura Liptai (Liptai), a biomechanical engineer. The court stated that it would permit some testimony depending upon whether the court found Liptai qualified as an expert.
At trial, Doctor John Pletz (Pletz), licensed as a physician and surgeon, testified as an expert for Salerno. Pletz reviewed medical records from other doctors, including the diagnosis of Doctor West (West), who saw Salerno the day after the accident, and Doctor Weisman (Weisman), who treated Salerno in 1997. West indicated that Salerno complained that she had developed pain in her neck and "low back" and he diagnosed her as having a cervical and lumbar sprain. Pletz saw Salerno twice in 1999 and he diagnosed her with a cervical sprain and a herniated disk. He opined that her injuries were caused by the automobile accident on November 16, 1996. Pletz testified that the "mechanism" of a herniated disk is being thrown forward (flexion) and "likely, to the side." On cross-examination, Pletz admitted that in a rear end collision, the initial movement of the occupant of the front car would be backwards, but he stated that the force of hitting the headrest would then propel the occupant forward.
Liptai, a biomechanical engineer, testified as an expert for Tudor. After reviewing the medical and accident reports, she concluded that the force from the crash was less than a slap on the back. She opined that in the accident involving Salerno and Tudor there was no "mechanism of injury" for herniation of a lumbar disk. She explained that flexion and compression of the spine are required simultaneously for a disk to herniate. She stated that in a rear end impact accident the exact opposite occurs; the occupant of the hit vehicle first moves backward with some tension. On cross-examination, she explained that due to the "very, very low velocity" of the cars, less than three miles per hour, the occupant's head was unlikely to go forwards, because the head would not hit the head restraint with sufficient force to push it forward
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